[Senate Hearing 110-921]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-921
 
  STRENGTHENING FISA: DOES THE PROTECT AMERICA ACT PROTECT AMERICANS' 
                 CIVIL LIBERTIES AND ENHANCE SECURITY?

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



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 25, 2007

                               __________

                          Serial No. J-110-57

                               __________

         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..................................   186
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   188
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   190
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Baker, James A., Lecturer on Law, Harvard Law School, Formerly 
  Counsel for Intelligence Policy Department of Justice, 
  Washington, D.C................................................    46
Cunningham, Bryan, Principal, Morgan & Cunningham, LLC, Greenwood 
  Village, Colorado..............................................    51
Dempsey, James X., Policy Director, Center for Democracy and 
  Technology, San Francisco, California..........................    49
McConnell, J. Michael, Director, Office of the National 
  Intelligence, Washington, D.C..................................     6
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C................................................    53

                         QUESTIONS AND ANSWERS

Responses of James A. Baker to questions submitted by Senators 
  Specter, Leahy, and Kennedy....................................    64
Responses of Bryan Cunningham to questions submitted by Senators 
  Specter and Leahy..............................................    83
Responses of James X. Dempsey to questions submitted by Senators 
  Leahy, Specter and Kennedy.....................................   107
Responses of J. Michael McConnell to questions submitted by 
  Senator Specter (Note: Answers to Senators Durbin, Feingold, 
  Kennedy and Schumer were not received at the time of printing, 
  November 3, 2009)..............................................   119
Responses of Suzanne Spaulding to questions submitted by Senator 
  Kennedy........................................................   140

                       SUBMISSIONS FOR THE RECORD

Baker, James A., Lecturer on Law, Harvard Law School, Formerly 
  Counsel for Intelligence Policy Department of Justice, 
  Washington, D.C., statement....................................   149
Cunningham, Bryan, Principal, Morgan & Cunningham, LLC, Greenwood 
  Village, Colorado, statement...................................   156
Dempsey, James X., Policy Director, Center for Democracy and 
  Technology, San Francisco, California, statement...............   168
McConnell, J. Michael, Director, Office of the National 
  Intelligence, Washington, D.C., statement......................   192
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C., statement....................................   211
Sussmann, Michael A., Partner, Perkins Coie LLP, Washington, 
  D.C., statement................................................   225


  STRENGTHENING FISA: DOES THE PROTECT AMERICA ACT PROTECT AMERICANS' 
                 CIVIL LIBERTIES AND ENHANCE SECURITY?

                              ----------                              


                      TUESDAY, SEPTEMBER 25, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:33 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Feinstein, Feingold, 
Durbin, Cardin, Whitehouse, Specter, Hatch, Kyl, Sessions, and 
Coburn.

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

    Chairman Leahy. Good morning. Before we start, just so 
everybody will understand, there seems to be, certainly more 
than I am used to, people having demonstrations in hearings. 
Now, just so everybody understands, I want everybody to be able 
to watch this hearing. I want everybody to be able to watch it 
comfortably. If people stand up and block the view of others 
who are here, they will be removed.
    If there are any demonstrations, whether they are for or 
against a position I might take, for or against a position 
Senator Specter might take, for or against a position anybody 
else or the witness might take, for or against it, they will be 
removed. I am sure that is not going to be necessary. I am sure 
everybody is going to treat this with the decorum expected. But 
if somebody is tempted otherwise, the police will be instructed 
to remove you.
    Now, this Committee holds this hearing today to consider 
the Protect America Act that was passed in haste in early 
August.
    Congressional leaders went to extraordinary lengths earlier 
this summer to provide the flexibility Director McConnell said 
was needed to fix a legal problem with surveillance of targets 
overseas. I supported a change to FISA, as I have done several 
times since 9/11. In fact, I think I have supported some 30 
changes to FISA since it was written.
    The Rockefeller-Levin legislative proposal that many of us 
voted for would have eliminated the need to get individual 
probable cause determinations for surveillance of overseas 
targets. That bill addressed the concerns that had been raised 
by an opinion of the FISA Court, and it satisfied what the 
administration said was needed in that time of heightened 
concern. Yet Director McConnell and the administration rejected 
that legislation, and we need to find out why.
    I do not know who Director McConnell is referring to in his 
written testimony when he says that he has ``heard a number of 
individuals .  .  . assert that there really was no substantial 
threat to our Nation.'' I trust that he is not referring to any 
Senator serving on this Committee, but if he did, I hope he 
would feel free to say so.
    Let me be clear: I have talked to virtually every Senator 
in this body. Every single Senator understands the grave 
threats to our Nation. Every single Senator, Republican or 
Democratic or Independent, wants us to be able to conduct 
surveillance effectively. Every Senator on this Committee voted 
to give Director McConnell the flexibility he said he needed. 
So I hope we will not hear any more irresponsible rhetoric 
about congressional inquiries risking Americans' safety. We all 
want Americans to be safe. Our job is to protect Americans' 
security and Americans' rights. We also take an oath of office, 
every one of us.
    The Protect America Act provides sweeping new powers to the 
Government to engage in surveillance, without a warrant, of 
international calls to and from the United States and 
potentially much more. It does this, in the view of many, 
without providing any meaningful check or protection for the 
privacy and civil liberties of the Americans who are on these 
calls. We are asked to trust that the Government will not 
misuse its authority. When the issue is giving significant new 
powers to Government, ``Just trust us'' is not quite enough.
    Fortunately, those temporary provisions contain a sunset. 
We meet today to consider real issues and concerns with this 
legislation. Let us not engage in the high-pitched rhetoric 
that plays on people's fears, because that prevents real 
progress.
    The FISA Court has played an important role ever since the 
Foreign Intelligence Surveillance Act was passed. It provides a 
meaningful check on the actions of our Government as it is 
engaged in surveillance of Americans. Unfortunately, the FISA 
Court was cut out of any meaningful role in overseeing 
surveillance of Americans in the Protect America Act.
    The Rockefeller-Levin measure by contrast would have 
allowed the ``basket'' surveillance orders that the 
administration says are needed, and Director McConnell says are 
needed, with no individual probable cause determinations, but 
it at least had the FISA Court issuing those orders to 
communications carriers after reviewing the administration's 
procedures. The Protect America Act, the one that was passed, 
requires U.S. telecommunications carriers to assist with 
surveillance just on the say-so of the Attorney General and the 
Director of National Intelligence. That is a mistake; it is an 
invitation to abuse.
    So I look forward to hearing from Director McConnell on 
what he believes the problems are with a role for the FISA 
Court in issuing orders, and how we can create the necessary 
authority to include the appropriate checks and balances.
    The problem facing our intelligence agencies is targeting 
communications overseas. We want them to be able to intercept 
calls between two people overseas with a minimum of difficulty. 
What changes the equation and raises the stakes is that the 
people may be innocent Americans, or they may be talking to 
innocent people here in the United States. International 
communications include those of business people or tourists; 
they even include the families of our troops that are overseas. 
Now, we can give the Government the flexibility it needs to 
conduct surveillance of foreign targets, but we can do it while 
doing a better job protecting the privacy of individual 
Americans.
    The Protect America Act provides no meaningful check by the 
FISA Court, or by the Congress, for that matter. It does not 
even require the Government to have its own internal procedures 
for protecting the privacy of these Americans. As I said, it 
may be a spouse calling from here to a husband or a wife who is 
overseas protecting America. They may be talking about the 
children's grades. They may be talking about a difficulty a 
child may be having with the separation. Now, the alternative 
bill would have required at least internal procedures and an 
Inspector General audit, and I would like to know why Director 
McConnell rejected that idea.
    In addition, the Protect America Act contains language that 
appears to go far beyond what the administration said it 
needed. It redefines ``electronic surveillance'' in a way that 
has expansive implications, but was not necessary to accomplish 
the administration's stated objectives. It has language in many 
places that, at the very least, is inscrutable and could be 
read to allow much broader surveillance than the administration 
has acknowledged or, for that matter, I hope intends. And if 
this was unintentional, well, then, we can fix it. That is one 
of the things the sunset requires us to do, is look at it. If 
it was not, then we need to evaluate what was really intended 
and why.
    I know the skilled and dedicated employees of our 
intelligence agencies want to protect our country, as every one 
of us does. But if our history has taught us anything, it is 
that the Government cannot and should not be left to police 
itself when it comes to the secret surveillance of Americans. 
The Founders knew it. The Congress that passed the Foreign 
Intelligence Surveillance Act knew it. So I hope this hearing 
will help us institute the proper protections to safeguard our 
security and our valued freedoms.
    As I said, we have amended FISA about 30 different times 
since it was enacted. Many of us have served here long enough 
on this Committee to have voted for every one of those changes.
    Senator Specter.

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

    Senator Specter. Thank you, Mr. Chairman.
    The Congress will soon be called upon to decide what to do 
on the application by the administration to have wiretapping 
surveillance overseas without warrants. We passed legislation 
in early August, at 11:59 at the last minute, relying really, 
Mr. Director, on your advice that there were dire threats to 
the United States at that time.
    And the congressional response to the administration's 
request really depends largely on trust, and the sequence of 
these warrantless wiretaps has strained that trust relationship 
because the administration put into effect a program for 
warrantless wiretaps different from the tradition of applying 
to a judge, showing probable cause to get judicial 
authorization for a wiretap, not disclosed to Congress until 
the newspapers broke the story in December of 2005, when we 
were in the middle of the final stages of debate on the PATRIOT 
Act.
    It delayed the passage of the PATRIOT Act, almost scuttled 
the PATRIOT Act. And my response at that time was that the 
administration could at least have confided in the Chairman of 
the Judiciary Committee and the Ranking Member--I was then 
Chair, Senator Leahy ranking--and similar ranking Chairs on 
other key Committees. But the administration chose not to do 
so, and that kind of a policy I think needs to be revisited.
    Then when you came forward, Mr. Director, in late July and 
advised the Congress about the threats which you posed, the 
chatter which was being undertaken, it was in reliance on your 
representations that the legislation was enacted. And it is 
really vital that we not wait until the last minute to make 
another hasty decision.
    We carefully sunsetted the provisions for warrantless 
wiretaps directed at people overseas for a 6-month period of 
time. When you talk about some public disclosure or some public 
understanding of threats to the Nation, it is obvious we are in 
a very difficult situation because you cannot--you are the 
Director of National Intelligence. You cannot say too much. And 
perhaps much of it has to be transmitted to the key committees 
in a closed session.
    But the business of warrantless wiretaps is a matter of 
enormous public concern, and I believe there has to be more 
consideration given to what can be disclosed publicly, as 
transparently as possible so the American people know what the 
intrusion is, they know what the reasons are, and we can 
undertake a balancing test to see if it is warranted. That is 
what I think we have to do. So to the extent you are talking 
about threats, to the maximum extent they can be disclosed 
consistent with national security, I think that is advisable.
    When we talk about targeting overseas and targeting 
foreigners overseas, there is a significant difference between 
targeting people in the United States for wiretaps. And I am 
glad to see the administration finally brought the issue for 
targeting Americans in the United States to the FISA Court. We 
struggled with many hearings in the 109th Congress and finally 
came to that conclusion.
    When you are targeting overseas, I think there has to be a 
sharp distinction between targeting U.S. citizens overseas and 
targeting others. Right now there is an Executive order which 
requires the Attorney General to find probable cause before a 
U.S. person is targeted overseas. And my thinking is that the 
statute ought to be modified to put that responsibility in the 
FISA Court, to establish probable cause, which is the 
equivalent of authority to issue a warrant, if targeting is 
being directed at U.S. persons.
    The administration has argued that the FISA Court ought to 
be limited just as to procedures, that the administration 
requires that flexibility. I believe we need more of a showing 
by you, Mr. Director, of the need for that flexibility, and the 
elimination of the supervision of the FISA Court has to be 
justified by real necessity for your flexibility.
    And I believe it is not sufficient for the FISA Court to be 
taking a look at procedures every year. I am not sure how often 
it ought to be. Perhaps every few months. But I think when the 
renewal is made to the FISA Court, even as to procedures, there 
ought to be a showing as to what you have accomplished. This 
invasion of privacy, no matter whose privacy is involved, has 
produced some results. So we are going to be weighing these 
factors very carefully.
    One final comment. There has been discussion as to the 
participation of your counsel in this matter. You called me. I 
know you have discussed it with a number of members of the 
Committee, and Senator Leahy and I have discussed it. And if 
you have a legal issue and need the advice of counsel, my 
judgment would be that you ought to have significant latitude. 
You are not a lawyer. If you need an interjection by legal 
counsel, I think you ought to be able to do that, too. But we 
will have to make those judgments as the specific questions 
arise.
    You have some lawyers on the panel, including the Chairman, 
myself, Senator Hatch, Senator Kennedy, Senator Feinstein--
smarter than most of the lawyers on legal issues because of her 
heavy study of the matter. She cites more sections of more 
codes than anybody else on the Committee. And the Senator from 
Maryland is also an attorney, so we will be watching very 
closely to make sure that you have an adequate opportunity to 
respond or get assistance on the very complex legal issues 
which are involved here.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. And as I told Senator Specter 
earlier this morning when we discussed this, I have written to 
Director McConnell and thanked him for his offer of having 
Government witnesses and lawyers here to testify, too. Of 
course, they have not submitted testimony, and so I declined. 
We are dealing with more with factual issues than legal issues. 
We will be going through those, among others, at the time of 
the Attorney General nomination hearing.
    I also explained to Senator Specter--and I should explain 
to you, Admiral--that should you have a legal question and you 
wish to consult, we have several of the best lawyers in the 
city behind you. Should you wish to consult, feel free to do 
so. That time that you take to do that will not come out of 
either your time or the Senator's time asking you the question. 
Just so you know that.
    Of course, also, as I have explained for years and years on 
various committees I have chaired, I do not play ``gotcha.'' 
The record will stay open for a certain period of time to allow 
you a chance to look through it and make any corrections you 
wish.
    Senator Hatch. Mr. Chairman.
    Mr. Chairman, if there are technical legal questions, I 
think the Director is not an attorney and he ought to be able 
to call on his people to be able to help us with those direct 
legal questions. So I just--
    Chairman Leahy. Well, we will have plenty of time for them 
to do that, and should the administration want them to come up 
and testify on the legal thing, we will try to find a time so 
they can do just that, in the normal forum with their testimony 
provided to you and me and everybody else on the Committee 
ahead of time.
    Senator Hatch. My only point, Mr. Chairman, is that some of 
us would benefit from perhaps some legal answers from 
Government officials, because we will get some from other 
witnesses, and we ought to at least be able to judge that.
    Chairman Leahy. If the administration wishes to have them 
come up and be sworn and testify, we can probably arrange that.
    Senator Hatch. Thank you, Mr. Chairman.
    Chairman Leahy. Please stand and raise your right hand. Do 
you solemnly swear that the testimony you will give in this 
matter will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. McConnell. I do.
    Chairman Leahy. Thank you. Director McConnell, we have your 
full statement, and, of course, it will be made part of the 
record so that we can get into questions. Would you please 
summarize it as you see fit and we can get into questions.

    STATEMENT OF J. MICHAEL MCCONNELL, DIRECTOR OF NATIONAL 
INTELLIGENCE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, 
                        WASHINGTON, D.C.

    Mr. McConnell. Thank you, Chairman Leahy, Ranking Member 
Specter, and other members of the Committee. Thank you for 
inviting me to appear here today. I appreciate the opportunity 
to discuss the 2007 Protect America Act and the need for 
lasting modernization of the Foreign Intelligence Surveillance 
Act that we will refer to in the hearing, I am sure, as 
``FISA.''
    Before I begin, I need to note that some of the specifics 
that support my testimony cannot be discussed in open session. 
I understand, and I am sensitive to the fact, that FISA and the 
Protect America Act and the types of activities that these laws 
govern are of significant interest to Congress and to the 
public.
    And for that reason, I will be as open as possible, but 
much of this discussion comes with some degree of risk. This is 
because open discussion of specific foreign intelligence 
collection capabilities causes us to lose those very same 
capabilities. Therefore, on certain specific issues, I would be 
happy to discuss with members in a classified setting.
    I have previously appeared before the Intelligence 
Committee in closed sessions, which includes crossover members 
for this Committee. I would be happy to appear before this 
Committee in closed session as well so that you may avail 
yourselves of any additional information that would be helpful 
in considering these very important issues.
    Chairman Leahy. If there are things that we should be doing 
in closed session, I will confer with Senator Specter, and I am 
sure he and I can arrange such a closed session.
    Mr. McConnell. Thank you, sir.
    It is my belief that the first responsibility of 
intelligence is to achieve understanding and to provide 
warning. As the head of the intelligence community, it is not 
only my desire, it is my duty to encourage changes to policies 
and procedures, and where needed, legislation, to improve our 
ability to provide warning of terrorist or other threats to the 
country. On taking up this post, it became clear to me that our 
foreign intelligence collection capabilities were being 
degraded.
    I had learned that collection using the authorities 
provided by FISA continued to be not only instrumental but 
vital in protecting the Nation. However, due to changes in 
technology, the wording of the law as it was passed in 1978 was 
actually preventing us from collecting foreign intelligence 
information.
    I asked what we could do to correct the problem, and I 
learned that a number of my colleagues had already been working 
on the issue. In fact, in July of 2006, the Director of the 
NSA, General Keith Alexander, and the Director of CIA, General 
Mike Hayden, testified before this Committee regarding 
proposals to change and update FISA. That 2006 testimony 
contained significant information and insight into our 
capabilities and the need for changes to wording in the law.
    I also learned that Members of Congress in both chambers 
and both sides of the aisle, to include this Committee, had 
proposed legislation to modernize FISA in 2006. A bill passed 
the House last year, but it was not taken up by the Senate. 
Therefore, the dialog on FISA has been ongoing for some time. 
It has been a constructive dialog, and I hope it continues in 
furtherance of serving the Nation to protect our citizens, both 
their safety and their civil liberties. None of us wants a 
repeat of the 9/11 attacks, even though al Qaeda has stated 
their intention to conduct such attacks.
    As is well known to this Committee, FISA is the Nation's 
statute for conducting electronic surveillance and physical 
search for foreign intelligence purposes. When passed in 1978, 
FISA was carefully crafted to balance the Nation's need to 
collect foreign intelligence information with the need for the 
protection of civil liberties and privacy rights of our 
citizens. There were abuses of civil liberties from the 1940's 
through the 1970's that were galvanized by the abuses of 
Watergate that led to the action that caused the Congress to 
craft and pass the legislation that was signed by President 
Carter in 1978.
    This 1978 law created a special court, the Foreign 
Intelligence Surveillance Court, to provide judicial review of 
the process. The Court's 11 members devote a considerable 
amount of time and effort to FISA matters, while at the same 
time fulfilling their district court responsibilities, and we 
are indeed grateful for their service.
    FISA is a very complex statute. It has a number of 
substantial requirements. Detailed applications contain 
extensive and factual information and require approval by 
several high-ranking officials in the executive branch before 
going to the court. The applications are carefully prepared, 
subject to multiple layers of review for legal and factual 
sufficiency to ensure that they meet the probable cause 
standard to the Court.
    It is my steadfast belief that the balance struck by the 
Congress in 1978 was not only elegant, it was the right balance 
to allow my community to conduct foreign intelligence while 
protecting American civil liberties.
    Why did we need the changes that the Congress passed this 
past August? FISA's definition of ``electronic surveillance'' 
simply did not keep pace with technology and therein is the 
issue. The definition of ``electronic surveillance'' from the 
1978 law did not keep pace with technology. Let me explain what 
I mean.
    FISA was enacted before cell phones, before e-mail, and 
before the Internet. The Internet was not even envisioned in 
1978. Today it is a tool used by hundreds of millions of 
people, to include terrorists for planning, training, and 
coordination of their operations.
    When the law was passed in 1978, almost all calls were on a 
wire in the United States, and almost all international calls 
were in the air, or known as ``wireless'' communications. 
Therefore, FISA was written in 1978 to distinguish between 
collection on a wire and collection out of the air.
    Today the situation is completely reversed. Most 
international communications are on a wire, fiber optics, and 
local calls are in the air. FISA originally placed a premium on 
the location of the collection, and that is a very important 
issue for us to consider. Therefore, collection against a 
foreign target located overseas, because of the wording in the 
law, from a wire located in the United States, required us to 
have probable cause standards to seek a warrant from the FISA 
Court to collect against terrorists located overseas.
    Chairman Leahy. But, Director, you have emphasized over and 
over again the 1978 law. It has been amended about 30 times 
since then, around 7 or 8 times at the request of the 
administration with which you serve. And I think it is somewhat 
disingenuous to keep referring to the fact that we were dealing 
with a 1978 law. It has been dramatically changed since that 
time.
    Now, you have testified a number of times over the past few 
weeks. I know that it is difficult. We all appreciate the time 
you have taken. But just as I have concerns with you talking as 
though we are dealing with a 1978 law, I have concerns about 
some of the statements you made in those hearings.
    For example, 2 weeks ago in Senate testimony, you claimed 
that information obtained as a result of the Protect America 
Act, the latest change in the FISA Act, was important to the 
investigation of the recent German terror plot. You said it 
several times. But later, after press reports and Members of 
Congress questioning it, you issued a statement saying your 
testimony was not true. The information you spoke of was 
obtained before the latest law was enacted. It was obtained 
under the old FISA authority.
    In the same hearing, you warned that if we would lose the 
authority in the new legislation, you would lose 50 percent of 
our ability to track, understand, and know about these 
terrorists. A week later, when you testified before the House 
Judiciary Committee, that 50 percent had moved to two-thirds of 
our capability. And in that same hearing, you said you were 
concerned that losing the authority would shut us down. So you 
went from 50 percent to 100 percent in no time whatsoever.
    Now, I am just wondering why did you testify to something 
that was false and give a misleading impression of the benefits 
of the legislation. Did you check with anyone before making 
those claims?
    Mr. McConnell. Sir, when I was asked about FISA and the 
situation in Germany, the question that I understood was 
referring to FISA. This panel is making a differentiation 
between FISA and the Protect America Act. In my mind, that is 
all one act passed in 1978, as you have mentioned several 
times, updated any number of times. In my view, it was updated 
in August as the latest review.
    So the question I understood was did FISA make a 
difference, and FISA was absolutely vital for us to understand 
that threat and to assist in what happened in terms of removing 
terrorists whose intent was to kill Americans and/or Germans in 
Germany.
    Chairman Leahy. And I appreciate your explanation of what 
did appear to be misleading to most people. But, you know, if a 
well-intentioned person like can make such mistakes, you can 
understand why we need to have some checks on this so that 
mistakes are not made.
    We all believe that conducting surveillance on terrorism is 
vital. I voted to give you greater flexibility, as did 
everybody on this Committee, when that matter came before us in 
early August. Some of us did not vote for the Protect America 
Act, but we voted for the Rockefeller-Levin amendment, the 
alternative. It would have given the same flexibility, but it 
would have had some oversight by the Court and more 
requirements for the executive branch to protect privacy.
    When you testified in the past few weeks-and it sounded 
like you were saying that here--you always warned about the 
dangers of going back to the old FISA process with individual 
probable cause determinations. Well, let us be honest. Neither 
the Rockefeller-Levin bill nor the similar House alterative 
would have required that. I discussed this with you many times. 
I said I am not asking for that. Nobody was asking for that.
    So I do not know why we keep hearing about legislation that 
few, if any, members have proposed or supported. I would like 
to keep our focus on the Protect America Act and those parts 
that concern this Committee.
    So assume that we do not propose going back to individual 
probable cause determinations by the FISA Court, as you seem to 
imply, and nobody--certainly I have never heard it from any 
Senator for overseas targets and not U.S. persons. If we are 
not going to back to individual probable cause determinations, 
wouldn't that help you?
    Mr. McConnell. That is exactly the point, Senator. Not 
having to be required to do probable cause justification to 
conduct surveillance against the known terrorist overseas is 
the whole point. That--
    Chairman Leahy. But nobody has suggested that. We talk 
about programmatic; even with the emergency time, you have 
after-the-fact determination. What I worry about when I hear 
you testify, when I hear the President give his Saturday 
morning speech, you always talk about this 1978 bill. I mean, 
that is like saying that if you go out with your brand new car 
and say, Boy, I remember the problems I had in my 1978 car. It 
is not the same one. It may be the same make of car, but it is 
a big difference.
    Mr. McConnell. Senator, all I can respond is to say I wish 
some of those 30 changes that you are mentioning had, in fact, 
addressed this issue. Now, this is not a new issue to this 
Committee.
    Chairman Leahy. But the Rockefeller-Levin did not require 
individual probable cause.
    Senator Hatch. Mr. Chairman, can we let him finish his 
statement? I mean, I would really like to hear--
    Chairman Leahy. Would you let the Chairman finish his 
question, please?
    Senator Hatch. Well, I thought we were going to let him 
finish his statement.
    Chairman Leahy. We will give you plenty of time to--
    Senator Hatch. Well, let the man finish his statement.
    Chairman Leahy.--give the administration's position, but 
the Rockefeller-Levin did not require that individual probable 
cause, did it?
    Mr. McConnell. Sir, the issue with the Rockefeller--Levin 
bill is--as I tried to highlight in my statement, this is an 
extremely, extremely complex bill. The issue was we exchanged 
between us, between the Hill and the administration, seven 
different drafts. I was provided a copy of that draft after 
debate had started on the floor of the Senate. Now, when I had 
a few minutes to look at the draft, what I looked to see was 
did it introduce things that would cause a limitation on the 
flexibility and effectiveness of this community to protect the 
country. And it did.
    The specific question you are asking about, quite frankly I 
have not found a member on the Hill that disagrees with what 
you are saying. I agree with it. You agree with it. The issue 
is we have to get it in legislation in a way that allows us to 
carry out our mission.
    Now, what happened in that bill, the draft of that bill, 
introduced uncertainty. It also addressed minimization and it 
addressed the issue called ``reverse targeting.'' And when you 
examine the full intent of that wording, what happens is it 
puts us in an untenable position of not having the flexibility 
that we need.
    Chairman Leahy. You know, it is interesting. I was in many 
of those meetings with you and the White House when we talked 
about it, when we talked about what we were going to do. None 
of the concerns that you are talking about now were raised at 
that time. They were suddenly raised when it was on the floor, 
and that is when it creates the concern.
    Part of that we will have to go into classified session to 
talk about, but you can understand why people worry about this. 
We have a respected lawyer in Vermont, Robert Ginsburg. He and 
I served as prosecutors at the same time. He is representing a 
client being held in Guantanamo Bay. He is worried that his 
calls regarding his client are being monitored by the 
Government. He makes calls overseas, including to Afghanistan, 
on behalf of his client.
    Now, I am not going to ask you whether his telephone is 
being tapped because I would not expect you to answer that. But 
you can see why people worry, and I think whether it was Mr. 
Ginsburg, whom I happen to know, or anybody else, they would 
feel considerably more confident if they thought that the FISA 
Court at least had some oversight here.
    My time is up, and I will yield to--but you and I should 
probably discuss that matter in a classified--
    Mr. McConnell. Sir, if I could respond, let me go back to 
our discussion. You and I had a one-on-one in a classified 
context. As I recall, it went for about an hour and a half.
    Chairman Leahy. And I am trying to avoid going into the 
specifics of what we did.
    Mr. McConnell. And I do not intend to go there, but I need 
to make three points for this Committee so that everybody 
understands.
    When I entered back into active duty service and looked at 
this issue, it appeared to me we had to make some fundamental 
changes. Now, all the changes to FISA previously 
notwithstanding, the three points I tried to make--and I 
gathered the lawyers around me to say I do not know exactly the 
wording how we do this, but here are the three points:
    We are disadvantaged because we are currently being 
required to have a warrant against a foreign target located 
overseas and it inhibits our capability to do our job. So we 
have got to fix that, whatever the proper wording is.
    The second is we have to have a way to compel the private 
sector to assist us and to provide a reasonable level of 
liability protection for them.
    So first point, no warrant against a foreign terrorist 
overseas. Compel the private sector to help us.
    And the third point--and this is very important. It is very 
important to me; it is very important to members of this 
Committee. We should be required--we should be required in all 
cases to have a warrant anytime there is surveillance of a U.S. 
person located in the United States. I think that was the 
intent of the 1978 law. That is what was included in the 
Protect America Act passed in August. That is where we need to 
be, and anything else we do to that, we have to examine what 
the words mean to our effectiveness. And so that is where we 
are with regard to examining this law.
    So my point to the administration and the Congress is we 
need those three points, and we need to have them passed in a 
way that is effective for us to carry out our mission.
    Chairman Leahy. Well, I might say parenthetically, as one 
who has been right into this program, I am picking my words 
very carefully, but when you talk about the question of 
immunity, you have got a warrant on actions that are going on, 
that pretty well immunizes anybody. I mean, if in a previous 
incarnation, Senator Specter and I got a search warrant to 
search somebody's safe deposit box, and the bank opens it up 
for us, the bank is immunized because they have the warrant.
    I yield to Senator Specter.
    Senator Specter. Director McConnell, picking up on those 
three points--
    Senator Sessions. Mr. Chairman, just briefly, did the 
witness ever finish his statement? I do not know if he got to 
finish his statement. I know you interrupted him. You had 
something you were concerned about. But--
    Chairman Leahy. Well, he was--
    Senator Sessions.--I do not think he got to finish.
    Chairman Leahy. Well, he was at that time several minutes 
over, and I was trying to give him--
    Senator Sessions. His light was green. I noticed it was 
green when you were asking him--
    Chairman Leahy. No. His statement, which is part of the 
record, Senator Sessions, I was trying to give him a graceful 
way, rather than just saying, ``You are way over time,'' and 
cut him off. But thank you for raising that point.
    Senator Hatch. Well, Mr. Chairman, whether over or not, 
this is the Director of National Intelligence. We are all 
interested in what he had to say. I got the impression he was 
going through the history of this matter and was ultimately 
going to reach the points that you were concerned about and all 
of us are concerned about.
    Chairman Leahy. I will give the--
    Senator Hatch. He ought to be able--
    Chairman Leahy. The Senator from Utah will have as many 
rounds as he wants, if he wants to have 20 rounds, to ask the 
Director those questions, we will give him those.
    Senator Hatch. I would rather have him out watching over us 
from a security standpoint than here, to be honest with you.
    Chairman Leahy. Senator Specter.
    Senator Specter. And now we return to Director McConnell. 
Going to the--if we could start the clock at 7 minutes, I would 
appreciate it.
    Going to the three issues that you have raised, the 
surveillance of U.S. persons in the United States is now 
governed by the warrant procedure--
    Mr. McConnell. Yes, sir, it is.
    Senator Specter.--applications of the FISA Court, probable 
cause.
    Mr. McConnell. Yes, sir. In all cases, yes.
    Senator Specter. Before there was wiretapping or 
surveillance on a person in the United States, correct?
    Mr. McConnell. Yes, sir.
    Senator Specter. You pick up the issue of compelling the 
private sector to help. We rejected the retroactivity of any 
such liability, but we have given you that assurance for the 
future, correct?
    Mr. McConnell. That is correct. Yes, sir.
    Senator Specter. Satisfactory. I think on our revisiting 
the statute we will not call for your certification, Mr. 
Director, which we did because of our concern about the then-
Attorney General, but can lodge that in the Attorney General, 
we had some criticism that giving the authority for 
certification to the Director of National Intelligence, we were 
letting the fox guard the chicken house. And we did that 
because we trusted you as the prime assurance that we could go 
back to the Attorney General. That will be acceptable to you, 
won't it?
    Mr. McConnell. Yes, sir. I would prefer that.
    Senator Specter. And when you pick up the issue of 
targeting foreigners overseas--I am going to get into some of 
the details, but first I want to be sure, Director McConnell, 
that we do not get into any areas which you think cross the 
line on secrecy which endangers our national security. 
Congresswoman Eshoo asked you in the House proceedings if you 
thought the congressional questioning of the administration's 
surveillance program would lead to the killing of Americans. 
And according to the record, you responded, ``Yes, ma'am, I 
do.''
    Is that an accurate quotation?
    Mr. McConnell. Yes, sir, it is.
    Senator Specter. Well, if we get into that territory, 
Director McConnell, tell us, and we will desist on a public 
session and undertake it in a private session to find out what 
we need to know.
    But as I said in my brief introductory remarks, there is 
great value in telling the American people, to the extent 
possible, consistent with national security, what the threat 
is.
    When you and I talked in July at length, there was public 
disclosure of the ``chattering,'' which was similar to what had 
occurred prior to 9/11/2001, correct?
    Mr. McConnell. Yes, sir.
    Senator Specter. To what extent can you say publicly the 
seriousness of the threat to U.S. national security?
    Mr. McConnell. The level of dialog and chatter increased 
significantly. We released, as you recall, a National 
Intelligence Estimate about the same time to try to capture the 
threat from that point 3 years forward.
    Senator Specter. And what do you mean by ``chatter''?
    Mr. McConnell. When we are observing activity of foreign 
targets, how they engage and what they are doing and what their 
planning might be and so on, we just refer to that as 
``chatter,'' indicating volume. So that level of volume had 
increased, and it caused us to be concerned.
    We combined current activity with the assessment that I was 
about to mention that we completed after about a year of 
attempting to develop it and get it coordinated and so on. The 
timing of the assessment coming out is it was just ready in 
July; we did not speed it up or slow it down to meet any 
particular timeline. That is when it was ready. And what had 
happened is we had observed al Qaeda in the federally 
administered tribal area of Pakistan be able to re-establish a 
safe haven that allowed them to have the senior leadership 
recruit and middle-grade leadership recruit operatives and to 
train the operatives, and the operatives were being trained in 
things like commercially available components for explosives. 
And so that level of activity had increased significantly.
    The intent of al Qaeda's leadership was to move those 
operatives from the training area into Europe and into the 
United States, and that was our concern, is our ability to 
recognize--
    Senator Specter. What did you say with respect to moving 
that activity into the United States?
    Mr. McConnell. Operatives who were trained in a way to 
obtain commercially available explosives to then transit from 
the training region of--the border area between Afghanistan and 
Pakistan, to reposition. In some cases, they had recruited 
Europeans. Europeans in large part do not require a visa to 
come into this country. So purposefully recruiting an operative 
from Europe gives them an extra edge into getting an operative 
or two or three into the country with the ability to carry out 
an attack that might be reminiscent of 9/11.
    Senator Specter. Anything besides the chatter and the 
activity in Pakistan which led you to believe they had the 
capacity to come into the United States, perhaps through 
Europeans who did not need visas? Anything beyond that that you 
can disclosed publicly?
    Mr. McConnell. I would rather not go too much further, but 
to answer a question raised by Senator Leahy earlier, I made 
references to some numbers. I learned long ago never use a 
number, so I violated my own rule. But about 50 percent of what 
we even know comes out of the FISA program. Within that, in 
answer to the Senator's question, when I said two-thirds, our 
ability within this 50 percent had been degraded by two-thirds 
because of the wording of the law, which had not been updated, 
leading up to this summer.
    So the point I was trying to highlight, about 50 percent of 
what we know comes from this process; about two-thirds of that 
had been degraded. So my push and emphasis over the summer was 
we have to get this wording changed so we can be more efficient 
and effective in targeting foreigners overseas.
    Senator Specter. Do the factors that were present in July 
which we discussed prevail today?
    Mr. McConnell. They do. One of our concerns has been the 
level of public activity. I do not know if you follow it that 
closely, but Osama bin Laden personally has now put out a video 
and two audio pronouncements over the last months or 6 weeks, 
and that is unusual. He had been absent from the airwaves for 
well over a year. So when we see that much activity at one 
time, our concern is it is a signal, it is an indication of 
activity. So while chatter continues, training continues, 
recruitment continues, I think probably the easiest way to 
capture the most recent events was the takedown in Germany of 
what is referred to as IJU, the Islamic Jihad Union, which is 
an affiliate group that trained in Pakistan with al Qaeda and 
trained the operatives that were arrested in Germany in 
Pakistan.
    Senator Specter. I am going to come back in the second 
round to the question about giving the FISA Court authority 
when U.S. persons are targeted overseas instead of the 
Executive order, which now gives that to the Attorney General. 
I am going to come back to that to see if it would be 
acceptable. But I want to just close the loop on what you have 
just testified to by asking you how heavily do you weigh the 
Osama bin Laden public pronouncements where they disperse on 
video--how heavily do you weigh that as a threat and why do you 
weigh that as a threat?
    Mr. McConnell. Sir, it is one of many factors, and I would 
say it is a concern. It just causes us to be concerned and 
vigilant. These other factors that I mentioned are the ones 
that cause me greater concern. So you can look over time and a 
statement may or may not mean something. There are some who put 
more credence in it. So I would say I am concerned. But when I 
can see with sufficient detail recruitment and training and 
explosives design and that sort of activity, and you follow it 
over time, you would understand why we are concerned.
    I would be happy to go into detail if we could go to a 
close session.
    Senator Specter. Thank you.
    Chairman Leahy. Thank you, Senator Specter.
    Of course, after this, if there are members who want a 
closed session on the Republican side, please talk with Senator 
Specter about that. On the Democratic side, talk with me. And 
Senator Specter and I will consult and come to an agreement on 
that.
    Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman, and 
thank you for having this hearing. Welcome.
    Just to review old ground for a moment, in 1976, in the 
wake of the fact that we had widespread wiretapping during the 
previous administration, during the Nixon administration, then-
Attorney General Levi, a Republican, with a Republican 
administration, asked a number of the members of this Committee 
down to the Justice Department' saying, ``We have a real 
challenge to our national security.'' The challenge involved 
enormously sensitive information, not only with regard to 
embassies but with regard to matters that were taking place 
overseas as well. Enormously sensitive.
    There was a sense that that Attorney General understood 
that the members of our Committee and the Members of Congress 
are as concerned about national security as anyone within the 
administration. And during that period of time, on four 
different occasions, members of this Committee went down to the 
Justice Department. And when the final legislation was enacted 
in 1978, there was one dissenting vote. One dissenting vote. We 
worked with a Republican administration and a Republican 
Attorney General to try and get the national security issues 
right.
    Up comes Mr. Gonzales. The members of this Committee said--
many of us who had been through the 1978 experience--``We want 
to work with you. We are as concerned about national security 
as you are.'' He said, ``We do not need your help. We do not 
need your assistance. We do not need your involvement. And as a 
matter of fact, we are not even going to tell you what is going 
on.''
    Now, I want to have some idea which tradition you follow. 
Are you willing to work with this Committee? Do you have 
sufficient confidence that the members of this Committee are as 
concerned about security as you are and also as concerned about 
the rights and liberties of the American people, and that when 
we get it right from an intelligence point of view, we are 
going to get it right with regard to protecting our rights?
    Mr. McConnell. I do agree with that, Senator, absolutely.
    Senator Kennedy. Well, are you going to be working with 
this Committee?
    Mr. McConnell. Absolutely.
    Senator Kennedy. And can you give us the assurance that 
whatever is passed by this Committee is going to be the one and 
only limit in terms of intelligence gathering, that it is going 
to be the sole means by which the executive branch can 
intercept communications in the United States?
    Mr. McConnell. Sir, if we can get the law that we have just 
passed made permanent and address the other issues, then that 
is how I would intend to carry out this program.
    Senator Kennedy. This is the issue because there are 
members of the Committee who are not sure what the law is. You 
are going to explain in detail what the law is and what it 
covers, either in open or in closed session?
    Mr. McConnell. Yes, sir. I would be happy to do that.
    Senator Kennedy. Wholly and completely?
    Mr. McConnell. Wholly and completely.
    Senator Kennedy. Thank you.
    Could I ask you a question about Attorney General 
certification and immunity from liability for carriers? Isn't 
it true that the carriers who act pursuant to a warrant or the 
Attorney General's certification already have immunity from 
liability?
    Mr. McConnell. I do not know the answer to that, sir. I 
could consult with counsel. I just do not know.
    Senator Kennedy. It is my understanding--I see your counsel 
that the carriers that act pursuant to a warrant or Attorney 
General certification already have immunity from liability.
    Mr. McConnell. Under the new law, that is correct. Yes, 
sir.
    Senator Kennedy. Well, it is true under the old law, too.
    Mr. McConnell. I do not know about the old law. What we 
asked for in the new one was to get--
    Senator Kennedy. OK. Well, if the warrantless surveillance 
program was legal, as you have claimed, what do carriers need 
immunity from?
    Mr. McConnell. I am not sure I understand your question, 
sir.
    Senator Kennedy. Well, if they have been abiding by the 
law, they should not need immunity. If they have been abiding 
by the Attorney General's certification, they should not need 
immunity. So why does the administration ask us to grant 
immunity for past activities when we have no idea what they 
were? At least I do not think any of the members of this 
Committee know what they were, but we are being asked to grant 
immunity, and that is what I am trying to drive at.
    Mr. McConnell. Going forward, there is proscriptive 
liability for anyone that would assist us in this mission. In a 
retroactive sense, those who are alleged to have cooperated 
with us in the past are being sued, and so it is to seek 
liability protection from those suits.
    Senator Kennedy. There is also a desire retroactively--to 
grant retroactive immunity.
    Mr. McConnell. That is correct, sir.
    Senator Kennedy. The point that is made is that this might 
bankrupt some of the companies if the lawsuits go ahead. It is 
a bad precedent, I think, if we finally have a law and then the 
carriers are able to violate the law and think that sometime in 
the future they can get immunity by talking about bankruptcy. 
There are alternative ways of preventing bankrupties. There are 
limits to damages, for example. But it is an important policy 
issue and question.
    Let me be in contact with you about this so you have a full 
idea of what I am driving at, because it is complicated and I 
know that you want to get the right position on this.
    Mr. Chairman, my time is just about up now. I will come 
back.
    Chairman Leahy. Thank you.
    Senator Hatch.
    Senator Hatch. Well, Admiral McConnell, the problem here is 
that there were legal opinions that warrantless surveillance 
could be undertaken, and these companies patriotically 
cooperated with the Government based upon those opinions. Is 
that a fair statement?
    Mr. McConnell. Yes, sir.
    Senator Hatch. So the fact that there were no warrants 
because it was warrantless surveillance should not subject them 
to litigation.
    Mr. McConnell. Those that were alleged to have helped us 
were responding to requests from the Government that was 
official. Yes, sir.
    Senator Hatch. Could you consider that response a patriotic 
response or--
    Mr. McConnell. Certainly, sir. Coming out of 9/11, you 
know, a lot of things happened where people wanted to be 
helpful and supportive and so on. So that is the period when it 
is in question. How would we understand and be able to push 
back this threat after the heinous events of 9/11?
    Senator Hatch. Now, as you know, I am aware of what went on 
there because I was one of seven on the Intelligence Committee 
who were fully informed.
    Mr. McConnell. Yes, sir.
    Senator Hatch. Were those activities helpful in helping to 
protect the country?
    Mr. McConnell. Yes, sir. They were essential. As I 
testified earlier, this process is a very, very significant 
part of our understanding of being able to warn--being able to 
see, understand, gain insight, and to be able to warn and 
prevent, move to cause things not to happen.
    Senator Hatch. And to protect us as citizens in this 
country.
    Mr. McConnell. There have been a series of things that are 
not public. A few have become public, but there are many more 
that have not become public where we have been effective in 
shutting down something because of this program.
    Senator Hatch. That is what the Protect Act is all about, 
is to allow you the ability to protect America in reasonable 
ways.
    Mr. McConnell. Yes, sir.
    Senator Hatch. And we enacted it, and it passed somewhat 
overwhelmingly in the U.S. Senate.
    Mr. McConnell. Yes, sir.
    Senator Hatch. But you do not have any axes to grind, do 
you? I mean, you are not really a political person, as I 
understand it.
    Mr. McConnell. No, sir, I am not. I mean, all I am 
attempting to do is to get the community positioned in the way 
that it can do its mission and then, consistent with the law, 
provide protection for citizens' privacy and civil liberties in 
the way that was captured in the original law in 1978.
    Senator Hatch. Well, before the Protect Act, you were very 
concerned that you might not be able to protect the country. Is 
that correct?
    Mr. McConnell. We had lost two-thirds of our ability 
because of the change in technology and the wording in the law. 
Some have said, ``Well, McConnell is blaming it on the FISA 
Court.'' I was not blaming it on any particular body. The 
wording in the law had not been changed. As has been noted, the 
law had been updated a number of times, but this problem had 
not been fixed. So what I was trying to flag is we need to fix 
that problem in the wording in the law so we can be effective 
in a foreign context.
    Senator Hatch. In other words, before the Protect Act, the 
intelligence community tried to do what it could to protect our 
country, but there were issues raised up here and elsewhere, 
and a lot of complaining, and so we did the Protect Act to 
satisfy some of the criticisms and questions that were raised.
    Mr. McConnell. Yes, sir.
    Senator Hatch. Is that a fair statement?
    Mr. McConnell. It is. Because of the change in technology, 
our access to communications, the place and the method because 
of the wording in the law would force us then to give Fourth 
Amendment protection to a foreign terrorist.
    Senator Hatch. So without giving any classified 
information, would it be your opinion that we are still under 
onslaught with regard to foreign people who want to destroy our 
country or want to attack our country?
    Mr. McConnell. Sir, specifically they have al Qaeda and 
related--they have a program to acquire weapons of mass 
destruction, biological, chemical, radiological, or even 
nuclear. And if they obtain those materials, they intend to use 
them.
    Senator Hatch. But it is even more than that, even general 
espionage and abilities to hurt Americans are still in play, 
aren't they?
    Mr. McConnell. Yes, sir, and that goes far beyond just the 
terrorists. I was just referring to terrorists.
    Senator Hatch. So all you are asking for is the ability to 
be able to protect the people in this country.
    Mr. McConnell. Yes, sir.
    Senator Hatch. And you are aware of an ongoing onslaught of 
efforts to try and hurt this country.
    Mr. McConnell. Indeed.
    Senator Hatch. And to try and hurt our people. In fact, 
kill our people. Is that correct?
    Mr. McConnell. Yes.
    Senator Hatch. This is not just some little itty--bitty 
problem, is it?
    Mr. McConnell. No, it is not.
    Senator Hatch. It is widespread?
    Mr. McConnell. Yes, sir.
    Senator Hatch. Now, a reading of the Protect America Act as 
enacted without knowledge of the rest of FISA and applicable 
Executive orders could be read to permit the targeting of U.S. 
citizens reasonably believed to be outside of the United 
States. Is that correct?
    Mr. McConnell. Sir, that assertion is made, but the mission 
of this community is foreign intelligence, and so if there was 
such targeting, it would have to be for a foreign intelligence 
purpose.
    Senator Hatch. That is right. However, the intelligence 
community is bound by Executive Order 12333.
    Mr. McConnell. Yes, sir.
    Senator Hatch. It is critical for the public to understand 
that you are still bound by that Executive order, and nothing 
in the Protect Act changed this. Is that correct?
    Mr. McConnell. That is correct. Yes, sir.
    Senator Hatch. Now, can you elaborate on the significant 
and necessary restrictions from Section 2.5 of this Executive 
order and how they provide protection for the privacy of 
American citizens overseas?
    Mr. McConnell. Under 2.5, you would be required to produce 
probable cause standard. In this case, it is reviewed and 
approved by the Attorney General, and--
    Senator Hatch. Well, that is a protection that you have.
    Mr. McConnell. Yes, sir. And the situation--just to get 
perspective, I think in the past year that happened 55 times, 
maybe 56, but in the 50s. And the situation was such that 
someone is either--they have been determined to be an agent of 
a foreign power operating with a foreign power or a terrorist, 
or in some cases that might be a dual citizen. So while someone 
has U.S. citizenship, they had foreign citizenship, too, so it 
would put it in that category where we would have to develop 
probable cause.
    Senator Hatch. Other legislative proposals on this topic 
called for a narrow definition of ``foreign intelligence 
information'' applying only to international terrorism. Now, 
some have also called for a court order being required on 
foreign individuals overseas if a significant number of 
communications involve a person in the United States.
    Now, would you provide an explanation of the flaws in both 
of these suggestions and how terrorists could adapt their 
behavior to trigger protections?
    Mr. McConnell. Yes, sir. As a practical matter, what you 
are able to do in this business is target one end of a 
conversation. You do that through a phone number or whatever. 
So the situation is we may be covering a foreign target in a 
foreign country. That person, we cannot control who calls them 
or who they call. If they call someone in the United States, 
now it sets up a situation where that could be the most 
important call, we intercept it because they could be 
activating a sleeper. It could be innocent.
    Senator Hatch. By a ``sleeper,'' you mean a sleeper cell of 
terrorists?
    Mr. McConnell. Sleeper cell, yes, sir. And it could be 
totally innocent. In the FISA legislation of 1978, we had 
similar conditions. Someone overseas could call into the United 
States. So the process that was actually adapted from a 
criminal wiretapping program called minimization was 
established in FISA, reviewed and approved by the court, so 
there is a minimization procedure. So if it is totally 
incidental, it would be taken--expunged from the data base. If 
it were activating a sleeper or terrorist related, it would be 
something we would be required to report foreign intelligence 
on. And if I might, if I could just take a minute, I want to 
just read from the joint congressional inquiry into 9/11, and I 
will just read a couple of passages:
    ``There were gaps between NSA's coverage of foreign 
communications and the FBI's coverage of domestic 
communications that suggest a lack of attention to the domestic 
threat. Prior to 9/11, neither agency focused on the importance 
of identifying and ensuring coverage of communications between 
the United States and suspected terrorists located abroad.'' 
That is exactly what happened with some of the terrorists here 
that were calling known terrorists overseas, and we missed that 
information.
    The joint congressional inquiry concludes, ``The Joint 
Inquiry has learned that one of the future hijackers 
communicated with a known terrorist facility in the Middle East 
while he was living in the United States. The intelligence 
community did not identify the domestic origin of this 
communication prior to 9/11 so that additional FBI 
investigative efforts could be coordinated.''
    So what we are describing here in this joint commission was 
a review after the fact of what we should have done, and the 
argument that I am making for the Committee today is preserving 
the legal foundation for us to target foreigners, foreigners 
that might call into the country to activate a cell, or a cell 
that is in the country reaching out to coordinate with a 
foreign terrorist cell located overseas. So our community is 
only targeting the foreigner overseas.
    Now, some will say, well, wait a minute, there is a 
situation where you could target overseas when your real target 
is in the United States. That is a violation of the Fourth 
Amendment. It is unlawful. So in that case, if we wanted to 
target or needed to target somebody in the United States, we 
get a warrant.
    And so from the way I think about it, it leaves the 
flexibility to our foreign intelligence mission. We have a 
situation under the law to deal with a foreign threat in the 
United States, and that is all warranted coverage.
    Senator Hatch. My time is up, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Welcome, Director McConnell.
    Mr. McConnell. Thanks, ma'am.
    Senator Feinstein. I have a series of questions. I believe 
that the FISA Act, since its passage in 1978, along the lines 
that Senator Kennedy was speaking, has been the exclusive legal 
means for conducting electronic surveillance for intelligence 
purposes. Do you agree that FISA, as presently written, 
includes language that it is the exclusive means to conduct 
surveillance for intelligence purposes?
    Mr. McConnell. Senator, you and I have discussed this 
before.
    Senator Feinstein. Right. I just want to go on the record 
with what you said to me.
    Mr. McConnell. Yes, ma'am, and--this is how I would execute 
this authority under the authorities that I hold. But what you 
are addressing is a constitutional issue, the difference 
between Article I and Article II--
    Senator Feinstein. What I am asking for is a yes or no--
    Mr. McConnell. But I can't--ma'am, I can't commit one way 
or the other to a debate between the executive branch and the 
legislative branch. Under my authority, we get this law 
positioned right, that is how I would cause this community to 
execute our authorities. So I would be consistent with this 
law. But I can't solve the constitutional debate that your 
question is addressing at a fundamental level.
    Senator Feinstein. OK. Senator Hatch mentioned Executive 
Order 12333, Section 2.5, which we have talked about 
previously. This section applies to any time the intelligence 
community tries to get information about a U.S. person overseas 
and requires that the Attorney General make a prior finding 
that there is probable cause to believe that the U.S. person is 
an agent of a foreign power.
    Would you agree to putting the language in Section 2.5 as 
currently written into statute?
    Mr. McConnell. Ma'am, I wouldn't object. What I would ask 
is we receive the language and examine it across the table from 
each other to understand its impact. And so long as it does not 
have unintended consequences, I would have no objection.
    Senator Feinstein. For the subset of Section 2.5, 
operations where the collection is done inside the United 
States, would you support shifting the probable cause 
determination from the Attorney General to the FISA Court?
    Mr. McConnell. It is inside the United States, ma'am. Even 
today it is under the FISA Court.
    Senator Feinstein. Thank you very much.
    Now I would like to ask some questions of minimization. Do 
the minimization procedures prevent NSA from retaining 
communications that do not contain foreign intelligence 
information?
    Mr. McConnell. If recognized, minimization would require 
them to expunge it from the data base.
    Senator Feinstein. Do the minimization procedures require 
that U.S. person information is made anonymous before it is 
disseminated as intelligence reporting?
    Mr. McConnell. Yes, ma'am, it does.
    Senator Feinstein. Is it required that a warrant be 
obtained when the U.S. person themselves becomes the subject of 
interest?
    Mr. McConnell. Yes, ma'am, and located inside the United 
States, yes, always.
    Senator Feinstein. And the finding is of intelligence 
value. Is that correct?
    Mr. McConnell. Back on the minimization procedures, let me 
give you an example, if I may. If two foreigners are discussing 
a member of this body, we would have--that is a U.S. person, so 
we would have to determine how we would deal with that. So if 
it had foreign intelligence value, you are being targeted or 
whatever, it is our obligation to report that. So we would 
report it as U.S. Person 1, or say it was the second person 
involved, U.S. Person 2. So the attempt is to protect the 
identity of the U.S. person when it is done in a foreign 
intelligence context.
    Senator Feinstein. All right. Let me just clarify that. 
When the pick-up is being analyzed and a determination is made 
that there is intelligence value by the analyst, exactly what 
happens?
    Mr. McConnell. The report would be written, and the 
identity of a U.S. person would be, as I mentioned, listed as 
U.S. Person 1, U.S. Person 2.
    Senator Feinstein. And then what is the warrant?
    Mr. McConnell. If for whatever reason the U.S. Person 1 or 
2--say they were terrorists and they become a subject of a 
target or a subject of surveillance, then we would be required 
to get a warrant.
    Senator Feinstein. And does that happen when the finding is 
by the analyst that the individual is of intelligence value?
    Mr. McConnell. It would always happen that way. Think of it 
this way--
    Senator Feinstein. So that is the trigger.
    Mr. McConnell. It is what do you target. If you target--
think of it as a phone number. If you put that phone number in 
the data base as a target, you would have to have a warrant.
    Senator Feinstein. All right. And that is determined, as I 
understood it previously, when the analyst makes a finding that 
there is intelligence value.
    Mr. McConnell. That is a way to phrase it. Let's just use a 
sleeper cell as an example. A foreign terrorist, which is your 
target, calls into the country and makes contact with somebody 
who is an accomplice or maybe a sleeper. At that point you 
would flag that information for the FBI so the FBI could get a 
warrant to conduct surveillance of that person.
    Now, let's suppose that it is a foreign target, they call 
into the United States, and it is Al's Pizza Shop, and it has 
nothing to do with anything. You would take that information 
out of the data base. You would expunge it from the data base.
    Senator Feinstein. Would you support a provision that 
required the Government to submit the minimization procedures 
it uses for the Protect America Act collection for FISA Court 
review, not afterwards as in the Protect America Act, but 
before?
    Mr. McConnell. They already have done that, and I wouldn't 
have any objection to them looking at the process and--
    Senator Feinstein. If that were written into the law.
    Mr. McConnell. Yes, ma'am. But, now, I have to take it one 
step further because we get into unintended consequences. 
Depending on the phrasing and the way it is captured in the 
law, it could put us in a position that we couldn't do foreign 
surveillance because we can't tell who that person is going to 
call, we can't control that until we got review beforehand. So 
if it is interpreted that way or could be interpreted that way, 
it would cause us great difficulty.
    So I am not objecting to how you phrased it, but we would 
have to look at it in the context of the bill and how might it 
be interpreted, because here is the thing I can't recommend we 
do, and that is, introduce uncertainty or ambiguity that would 
cause us to lose effectiveness. Because we are talking about 
people who are planning and operating in minutes or hours as 
opposed to long lead times.
    Senator Feinstein. Let me summarize it, and we have talked 
about this before. But it is my position that any collection 
against a U.S. person abroad with the minimization process, 
that that process should be approved by the court prior, and 
you have agreed to that, and that--
    Mr. McConnell. Ma'am, you just mixed two things. That is 
why this gets so complex.
    Senator Feinstein. How have I done that?
    Mr. McConnell. All right. You went from targeting a U.S. 
person abroad to minimization. Two different issues.
    Senator Feinstein. A U.S. person abroad is minimized.
    Mr. McConnell. No, ma'am. Let's say a U.S. person abroad is 
a dual citizen, agent of a foreign power. Currently, what the 
Executive order says is the community would have to produce 
probable cause standards information, but you take that to the 
Attorney General for a warrant.
    Now, if you are--
    Senator Feinstein. I am not talking about that part. I am 
talking about an innocent U.S. person abroad that gets caught 
up in one of these calls and how that call is minimized.
    Mr. McConnell. All right. So we are talking about 
inadvertent collection.
    Senator Feinstein. That is correct.
    Mr. McConnell. Now, what is the question? Am I objecting 
to--
    Senator Feinstein. So what is the minimization process and 
how does it function and what happens with that collection?
    Mr. McConnell. First of all, you may not even realize it is 
in the data base, because if you do lots of collection you have 
to have a reason to look. You look at it. If it is foreign 
intelligence, then it is treated the way we discussed. If it is 
now recognized it is incidental, it would be expunged from the 
data base.
    Those procedures have been reviewed by the FISA Court. I 
would have no objection to them looking at them again.
    Chairman Leahy. Senator.
    Senator Feinstein. My time is up. Thank you.
    Chairman Leahy. It is, and Senator Coburn is next.
    Senator Coburn. Thank you, Mr. Director, for being here, 
and thank you for your service.
    I just want to spend a little more time giving you a chance 
to outline for the American public the assurance that we have a 
minimization program that has been looked at, the procedures 
for that have been looked at by the FISA Court, agreed to by 
the FISA Court, and the assurance that you can give the 
American people that, in fact, there is not going to be a 
violation of that minimization process. Can you speak to that 
for a moment?
    Mr. McConnell. Yes, sir, I can. We have been doing this for 
29 years. It is reviewed at four tiers, four different levels. 
The agency doing it, they have a training process inside, and 
it is looked at by their general counsel and their IG. My 
office, as the overseer of the community, we review it. The 
Department of Justice also reviews it. The FISA Court reviews 
it for the process and so on, and then it is subject to review 
by the Congress and the oversight committee.
    So if there is a question and they want to look at, you 
know, what we have done or what the procedure--or visit NSA or 
look at any of that, we would make it all available so people 
could see it and understand it.
    Senator Coburn. OK. So that brings me to my next question. 
You all do not operate without oversight, correct?
    Mr. McConnell. No, sir, we don't.
    Senator Coburn. There is oversight. And what are the 
committees of Congress that have oversight over what you do?
    Mr. McConnell. Primarily, it is the House Permanent Select 
Committee on Intelligence and the Senate Select Committee on 
Intelligence.
    Senator Coburn. OK. Can you kind of give us a short summary 
of the oversight mechanisms of the Protect America Act that are 
in place today?
    Mr. McConnell. Yes, sir. The four tiers I just mentioned: 
internal, the agency; external, meaning my office and the 
Department of Justice; the FISA Court; and the Congress. Since 
the law was passed in August, and we put our--we came back up 
on our full coverage, there have been approximately ten visits 
out to NSA to sit down with the analysts and look at the data 
and the process and what is the training standard, what are the 
conditions, and what would you do with the information and 
track it through the process.
    So it has been extensively reviewed, and it is subject to 
that extensive review so long as there is a question, or if 
anybody wants to revisit on a periodic basis.
    Senator Coburn. OK. One of the questions--and I think 
legitimately raised, especially because of some of the past 
actions--is developing the trust of the American people. There 
is a certain paranoia out there because we are close to 
stepping on individual American rights.
    Do you as an agency have plans to try to communicate in a 
positive fashion both to the Congress and the American people 
about holding your responsibility for both minimization as well 
as the protection of individual rights in this country?
    Mr. McConnell. Yes, sir. I personally have been very, very 
public on this issue, criticized in some cases for being so 
public. But if you will remember the three points that I 
started with--no warrant for a foreigner overseas, a foreign 
terrorist located overseas; a way to get assistance from the 
private sector. The third point is the one I believe very, very 
strongly in. Anytime there is surveillance of a U.S. person 
where that person is the target, I support, believe in, and 
would strongly endorse that we have a warrant. That warrant is 
given to us by a court, and that is not a menial process to go 
through because it is probable cause standard. Some would 
argue, well, you can go really fast because in an emergency you 
can get just a phone call, but you are still meeting a probable 
cause standard.
    So the Director of NSA, me, the Attorney General, we are 
not going to go fast until we have the facts in front of us, 
because it ultimately has to withstand the scrutiny of a court.
    Senator Coburn. So let me summarize, and you say if you 
agree with this. If you are an American citizen, you are not 
going to be targeted to any of this without the approval of a 
court.
    Mr. McConnell. That is correct.
    Senator Coburn. All right. That needs to be said, loud and 
loud and loud. If you are an American citizen, you have the 
protection of a court before you are subject to this law.
    Mr. McConnell. If you are an American citizen or even a 
non-citizen in the country, you have the protection of a 
warrant issued by a court before we could conduct any kind of a 
surveillance.
    Now, sir, so you are aware, some will argue that we are 
targeting overseas and the person overseas calls into the 
United States. That is where minimization starts. We cannot 
control what the overseas target does. We have to have a 
process to deal with that, and that is where minimization was 
introduced. It is an elegant solution. We have tried every way 
we can think of to make that different or stronger or more 
complete, and those who framed this law in 1978 and all of us 
that have looked at it since, we can't find a better process.
    Senator Coburn. But those minimization procedures, like 
Senator Feinstein suggested, have been looked at by the FISA 
Court.
    Mr. McConnell. They have.
    Senator Coburn. And you are suggesting and you would be 
happy to have those reviewed.
    Mr. McConnell. Yes, sir.
    Senator Coburn. And those probably should be reviewed 
sequentially and annually.
    Mr. McConnell. By not only the court, but by the Congress.
    Senator Coburn. Right.
    Mr. McConnell. In whatever periodicity they need to review 
them to be comfortable we are doing it the right way.
    Senator Coburn. I have no other questions.
    Chairman Leahy. Thank you very much, Senator Coburn.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Admiral McConnell, I very much appreciate your service to 
our country, and I can tell you that we all agree that we need 
to make sure that our intelligence community can get the 
information they need for protecting the civil liberties of the 
people in our country. We also agree we need to modernize our 
laws and gather intelligence information.
    But let me just suggest that I have confidence in your 
administration of the agency, but the laws that we create today 
are going to go well beyond your term in office. So we need to 
make sure that we have the right laws in place. I agree with 
Senator Specter's observations that some of the administrative 
decisions should be placed in statute in order that we have the 
protection, and I think that is a good suggestion that was made 
by Senator Specter.
    I appreciated also your analysis of the law in the 1970s. 
This is not paranoia. In the 1950s and 1960s, we had serious 
problems dealing with the civil liberties of the people in this 
country, and the FISA Court law was developed in order to 
provide the right balance. And as you point out in your 
testimony, you agreed with that law at its time, but it needs 
now to be modernized.
    Well, I think we still have concerns today, and I just 
really want you to focus a little bit more on the 
responsibilities for check and balance in our system. 
Traditionally, in criminal investigations, in the work of the 
Department of Justice, the courts have been the body that we 
look to as the check and balance. And yet the bill that was 
passed in August allows the FISA Court to look at the 
procedures used in gathering information, but it cannot be set 
aside unless it is clearly erroneous.
    Now, you do not need to be a lawyer to know that is a 
pretty difficult standard for the Court to use to set aside the 
procedures that have been developed. We are talking about the 
civil liberties of the people in this country. It seems to me 
that is a pretty tough standard for the entity, the branch of 
Government that is supposed to be our checks and balance. In 
order to get involved and suggest changes, they would have to 
find that your procedures are clearly erroneous.
    Your comments on that?
    Mr. McConnell. Sir, the target that you are describing is 
foreign. It is not a U.S. person. So the procedures we are 
talking about--
    Senator Cardin. But it has been pointed out before that in 
that process there is very likely at times to be communications 
with U.S. citizens. So there is the information being gathered 
potentially involving U.S. citizens.
    Mr. McConnell. The procedures in question you are 
describing are the procedures to determine foreign-ness--that 
is an odd term, but it is how do we know that the person being 
targeted is foreign. So it has a foreign context.
    Now, as we discussed with minimization, if you are 
targeting that foreign person in a foreign country, you cannot 
control who they might call. That is where minimization comes 
in. If the foreign terrorist calls into the United States, what 
do you do with that call?
    Since we cannot determine ahead of time who they might 
call, some say, well, it is easy, just make it foreign to 
foreign. You can only target one thing at a time, and while the 
vast majority--the vast majority--of the time it is foreign to 
foreign, in that isolated instance when it might be foreign to 
U.S., how do you deal with it? And that is the elegant solution 
that was captured in 1978, and all I am arguing is return us to 
1978.
    We had this same debate and situation in 1978 when the 
means of communication was wireless. The only thing that has 
changed, it went from wireless to wire. So that is why we found 
ourselves in this box.
    Senator Cardin. I guess my point is this: You make a very 
persuasive argument that to require an individual application 
to the FISA Court on a case involving a foreign person would be 
too onerous and be ineffective in getting the information. So 
Congress is looking at saying, OK, rather than the individual 
case, take the process that you are using to the FISA Court and 
have more involvement of the FISA Court in the process.
    I am not sure we got it right--in fact, I do not believe we 
got it right in the last bill we passed as to the appropriate 
balance between the FISA Court and your work on approving the 
procedures that are used.
    I guess my question to you is: Do you have any suggestions 
to us how we could set up a more effective involvement of the 
FISA Court on the procedures that you are using that will give 
more comfort that we have in place the appropriate checks and 
balances without compromising the ability of your agency to go 
after the individual that you believe you should?
    Mr. McConnell. I have no objection to working out the best 
possible solution, so I would be happy to work in any way--and 
I would even suggest perhaps we ought to involve the FISA Court 
in that discussion so that we can get the right balance between 
being effective in the foreign intelligence mission and 
protecting civil liberties.
    What I am worried about is because we were in a time crunch 
before, we are in a situation where words were about to be put 
into law, which is very difficult to back away from, that would 
have introduced uncertainty that I feel confident would have 
inhibited our effectiveness.
    So we are happy to look at anything, just let's sit down 
and examine what do you think that means and the 20 lawyers I 
have working this that are expert in it, what do they think, 
and what is the right balance.
    Senator Cardin. That is a fair enough challenge. I would 
just submit that we have a couple months now before the 
deadline approaches, and it would be useful if we have a 
meeting of the minds, if that is useful to try to improve the 
checks and balances through the FISA Court on process. Your 
suggestions or your attorney's suggestions in that would 
certainly be a good starting point for us in doing that. And it 
would be helpful if we could get that information to our 
Committee.
    Thank you, Mr. Chairman.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. Thank you.
    Thank you, Admiral McConnell, for your work and service to 
America and for protecting America, and I know that every 
morning you get up and until you go to bed at night, you worry 
about how to preserve this country and to make sure that 
another 9/11 does not happen. But the threat is out there. You 
have made that clear.
    There was a national consensus after the attack on 9/11--
and the 9/11 Commission was part of that and concluded that 
intelligence is the critical thing to preserve the safety of 
the people of the United States. Isn't that correct?
    Mr. McConnell. Yes, sir, that is correct.
    Senator Sessions. That is your business, but there is no 
way that we can stop everybody coming into America, we can stop 
every dangerous act that occurs, but knowing who has a 
malicious intent, intelligence, is the key to protecting us. 
Would you not agree?
    Mr. McConnell. Yes, sir. I do agree with that.
    Senator Sessions. Well, I have been frustrated because it 
seems to me the tenor and tone of hearing after hearing after 
hearing since 9/11 has been that somehow what you are doing is 
an attempt to constrict the great freedoms that Americans 
believe in, and we have forgotten the dangers that we face. And 
I would just note with regard to 1978, nobody denies that the 
people in 1978 were striving as best they could to correct some 
abuses that had occurred. But they created a wall of separation 
between the CIA, foreign intelligence and domestic 
intelligence, and the 9/11 Commission concluded that was a 
disaster.
    Mr. McConnell. Yes, sir.
    Senator Sessions. And we reversed that, clearly, promptly, 
when we faced up to what the good-intentioned people did in 
1978.
    Also, in 1978, through good intentions, they prohibited 
intelligence officers from undertaking operations and informant 
relationships with people around the world who may have had bad 
records. Do you remember that?
    Mr. McConnell. Yes, sir, I do.
    Senator Sessions. The intelligence community was concerned 
about that at the time, but Congress did not listen, and we did 
that. And after 9/11, that wonderful idea was examined in the 
cold light of day and promptly changed and eliminated. So our 
danger, I would submit to my colleagues, is that through good 
intentions we can create laws that, in fact, inhibit the 
legitimate ability of this Nation to protect itself.
    Now, having been through this, and having had, in 12 years 
as United States Attorney, I think one or two wiretaps, I know 
a little bit about that. And let me just ask you: You are not a 
lawyer, Admiral.
    Mr. McConnell. No, sir.
    Senator Sessions. You are doing pretty well for a non-
lawyer, I have to tell you. But when you obtain a wiretap in 
the United States on an American citizen, it takes a good deal 
of effort to do that. But once you obtain the ability through a 
court order at great effort, then you--you don't just--a person 
doesn't just talk to himself on the phone. You listen to who 
the person talks to.
    Mr. McConnell. Yes, sir.
    Senator Sessions. So once you have a lawful intercept, a 
lawful wiretap on an American citizen, you listen to who they 
call. Likewise, if you have a lawful intercept on a foreign 
person, you listen to who they talk to.
    Mr. McConnell. Yes, sir.
    Senator Sessions. Isn't that right?
    Mr. McConnell. That is correct.
    Senator Sessions. So if they happen to call not a foreign 
person but call somebody in the United States, then that is 
expected, to me, from the beginning that they might do that, 
and you would want to listen to that conversation.
    Mr. McConnell. Yes, sir.
    Senator Sessions. I do not see that fundamentally that is 
any different than the principle I have referred to about a 
lawful warranted wiretap here.
    So you listen to people who call, but if they call an 
American citizen and it appears that that conversation is 
unrelated to terrorism, or it appears to be innocent, then you 
even take steps to minimize that conversation.
    Mr. McConnell. Yes, sir.
    Senator Sessions. Is that right?
    Mr. McConnell. That is correct.
    Senator Sessions. And how do you do that, again?
    Mr. McConnell. It is just expunged from the database.
    Senator Sessions. Well, isn't that a bit dangerous? What if 
they were using code? Are you taking some risk there? Because 
if they were using some innocent code and you even take the 
name of the person they called in the United States out of the 
system?
    Mr. McConnell. Yes, sir. That is a judgment call. There 
would be some potential risk.
    Senator Sessions. But as an effort to avoid criticism from 
those who always seem to be unhappy with what you are doing, 
you have gone to the extent that you would minimize that call 
by removing the name from the system.
    Mr. McConnell. Yes, sir.
    Senator Sessions. Now, let me ask you, if a person has been 
identified to be associated with a terrorist organization, they 
are somewhere in the mountains of Afghanistan, and they are 
calling someone in the United States talking about a meal or 
what kind of television set they have and it seems to be 
innocent, do you still minimize that call?
    Mr. McConnell. We would. It would be a judgment call. We 
would hope we would have continuity on the person we are 
targeting, so if we had some reason to believe--and let's 
suppose that a discussion about a meal could be interpreted 
about planning for an operation. At that point, one, you would 
report the information; and, two, if that person, the U.S. 
person in the United States, you would coordinate with the FBI 
then to get a warrant against that person to find out if it 
was, in fact, terrorism related.
    Senator Sessions. But you would not have a basis to get a 
warrant based on what appeared to be an innocent phone call, 
factually, and so the only connection you have is that somebody 
in the United States is talking to a terrorist.
    Mr. McConnell. Yes, sir, that is correct.
    Senator Sessions. And you are minimizing that.
    Mr. McConnell. Right.
    Senator Sessions. Unless it appears that the conversation 
had some relationship to what might be unlawful activity.
    With regard to Senator Leahy's comment suggesting that you 
misstated the impact of the FISA law, I would like to give you 
a chance to explain that again. I thought your explanation made 
a lot of sense to me. Anybody can make a mistake. But I think 
your testimony was quite accurate as you understood it. Would 
you explain that?
    Mr. McConnell. Yes, sir. I have used some numbers a couple 
times. Someone had asked me what is the significance of this 
program, and the point I was trying to make, it is probably 
somewhere in the neighborhood of 50 percent or more of our 
total collection to understand this threat.
    Once you take FISA as a stand-alone, people had asked me, 
well, what had happened with the wording under the old law 
based on subsequent reviews by the FISA Court, and the answer I 
gave is that we have been reduced by about two-thirds of what 
our capabilities were over that period of time. So we were 
getting into an extremist situation. Known terrorists overseas, 
we were unable to target without a probable cause level one. 
Probable cause is a hard standard to satisfy, and so it takes 
time. So working those off, we started in the spring to try to 
work them off, and, in fact, over the summer we were falling 
further and further behind, because there are lots of potential 
targets, and a single target, single human being, could use 
multiple avenues of communication. So you find yourself trying 
to catch up. That was the first problem.
    Second is the very people who can understand this, the ones 
who speak the language, that know the individuals in a 
terrorist cell, are the ones that have to stop and do the 
justification. And so we actually had a situation where 
management of the process would have to make a judgment: Do I 
stay on target with the one or two or three or four that I have 
warranted coverage of? Remembering this is a foreign target in 
a foreign place? Or do I stop and give up on that target while 
we spend time writing a justification?
    Senator Sessions. To get a probable cause for a warrant 
that probably takes a hundred or more pages chock-full of facts 
and figures is very difficult to write, and if you are in 
error, the law officer will be accused of perjury. So they have 
to do it right, and it takes a lot of time.
    Mr. McConnell. Yes, sir.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Thank you for coming before the Committee, Mr. Director. I 
would like to start by following up on Senator Kennedy's 
questions about the retroactive immunity you are seeking. How 
can members of this Committee evaluate that request without 
facts about the alleged conduct in question?
    Mr. McConnell. Sir, those facts should be available to you. 
What I am asking for in a broad context--there are those who 
are alleged to have cooperated with us, that could be and are 
being subjected to suits. So in this context of doing this 
mission, when you understand the technology of today and how 
the ebb and flow of what it is we have to use to do our 
mission, we can't do it without the cooperation of the private 
sector. The United States intelligence community cannot do this 
mission without the cooperation of the private sector.
    So in the situation we found ourselves in, the law of last 
month talked of proscriptive protection. What I am asking for 
is we still have this situation to deal with retroactively. So 
I am asking for us to consider that in the deliberations you 
have. If there is information that you need to do that, I will 
make every effort to get you whatever I can--
    Senator Feingold. You have refused to provide Presidential 
authorizations and DOJ opinions--
    Mr. McConnell. No, sir, I haven't refused.
    Senator Feingold [continuing]. That I think are critical to 
understand this.
    Mr. McConnell. I haven't refused to provide the Committee 
with anything. I am in a position where I am attempting to 
conduct a mission. The administration that I work for, I have 
had some dialog about how that might play out. As I understand 
it, there is a negotiation between the Chairman and those in 
the White House about how this might play out. So I have made 
my recommendations, but I don't control the process.
    Senator Feingold. Well, I think that is critical, and I 
would say that--
    Chairman Leahy. Without going into the Senator's time, and 
your recommendation was what?
    Mr. McConnell. We need to provide the appropriate level of 
insight and information for the Committee to get us to the 
place where we can get the right legislation for this mission 
going forward.
    Senator Feingold. Does your recommendation include 
Presidential authorizations and DOJ opinions?
    Mr. McConnell. Sir, I don't want to go into that level of 
specificity.
    Senator Feingold. I would really suggest that if you are 
serious about this immunity proposal, which you obviously are, 
you have to make sure that Congress has what it needs to 
evaluate it. That is just a bare minimum for us to be able to 
do our job. You have a job to do, and you are trying to do it 
well.
    Mr. McConnell. Yes, sir.
    Senator Feingold. We want to be in the same position.
    Mr. McConnell. I understand.
    Senator Feingold. The only way we can be in that position 
is if we have the material so we can understand this.
    Let me ask you, as a general matter, do you think that 
private sector liability for unlawful surveillance plays any 
role in the enforcement of U.S. privacy laws and in providing 
disincentives to engage in lawful behavior?
    Mr. McConnell. That is a pretty complex question. In there 
you have said ``unlawful.'' I am not suggesting anything, 
endorsing anything that is unlawful. So could you--
    Senator Feingold. Well, I think it is pretty simple. Do you 
think there is a role for private sector liability to make sure 
that people's privacy is protected in this country? Do you 
believe in that principle?
    Mr. McConnell. I believe that the process should be 
subjected to the appropriate legal framework so that privacy is 
protected. Yes, sir, I do agree with that.
    Senator Feingold. You and Mr. Wainstein have stated several 
times in hearings over the last couple of weeks, and I think 
you said it again here today, that you would be willing to look 
at language proposed by Members of Congress for changes to the 
Protect America Act, but that you, of course, want to be 
careful to ensure that there are not unintended consequences 
that result from what may seem like small changes in the 
language.
    Mr. McConnell. That is correct.
    Senator Feingold. I take your point. But the point I want 
to emphasize here is I think that obligation goes both ways. 
Congress has to be careful also not to unintentionally 
authorize activities that we do not want conducted. I know 
there has been some back and forth about this. You are very 
familiar with the controversy surrounding the language in the 
PAA authorizing acquisition of information ``concerning'' 
persons outside the United States. Why was this word 
``concerning'' used? And why should Congress even consider 
reauthorizing such broad and ambiguous language?
    Mr. McConnell. Sir, I talked to the keeper of the pen when 
that was drafted, and, quite frankly, we were not sure why the 
word ``concerning'' was used. Different language--at one point 
it was ``directed at,'' at another it was ``concerning.''
    So the message I would deliver today is let's get the 
language that we can agree to, examine it from the 
responsibilities of the Congress and the responsibilities that 
I have to do this mission, and play it out to see what does it 
mean and how might it be interpreted so we can get to the right 
language. So if ``concerning'' is the wrong word, let's agree 
to a better word.
    Senator Feingold. The funny thing about this is we are not 
talking about a proposal. This is the law of the land. And this 
underscores the problem with this rush to judgment that we had 
in the last-minute push to get this bill passed, if you were 
not even comfortable with this language. And I have to say that 
we have to be a little worried about this sort of thing because 
this is the same administration that claimed in one of the most 
absurd legal arguments I have ever heard that the authorization 
Congress passed to use military force in Afghanistan after 9/11 
somehow allowed it to wiretap Americans in the United States 
without a warrant, and they did so for years in secret. So when 
members of the administration say that we should more or less 
trust them with something like this members of the public and 
the Congress have every right to be skeptical--and we have a 
duty to be skeptical. But I do appreciate the fact that you 
have acknowledged that there are concerns with the word 
``concerning'' and that we have to take it seriously.
    Director McConnell, you stated that reverse targeting is a 
violation of the Fourth Amendment and grounds for criminal 
prosecution. In public testimony to the House Intelligence 
Committee last Thursday, Assistant Attorney General Wainstein 
stated that reverse targeting includes wiretapping an 
individual overseas when you really want to listen to the 
American with whom the target is communicating. Do you agree 
with that description?
    Mr. McConnell. I do.
    Senator Feingold. And is this something that is essentially 
self-policing? How does the executive branch ensure that this 
constitutional principle is not violated?
    Mr. McConnell. As I tried to explain before, you can only 
target one thing, and so if the U.S. person in this country, 
for whatever reason--terrorists or whatever the issue is--
becomes a target, then you would be required to have a warrant.
    Now, if you engaged in that process of reverse targeting 
where you are targeting someone overseas and your real target 
is in the United States, that would be a violation of the 
Fourth Amendment. That is unlawful.
    Senator Feingold. Last Thursday, you told Congresswoman 
Schakowsky that while you do not know how much U.S. person 
information is in your databases, you could provide information 
about how much U.S. person information is looked at and how 
much is disseminated. Can you do that with regard to these new 
authorities? And when can you make that information available 
to this Committee?
    Mr. McConnell. The information is being prepared now, and, 
yes, I can do it with regard to the new authorities.
    Senator Feingold. And when can we receive that?
    Mr. McConnell. I don't know what--I have tasked it. I am 
waiting for a response back. I don't know yet. As soon as I 
know, I will be happy to advise you.
    Senator Feingold. Days? Weeks?
    Mr. McConnell. I would say weeks.
    Senator Feingold. During a hearing of the House 
Intelligence Committee, you stated that the bulk collection of 
all communications originating overseas ``would certainly be 
desirable if it was physically possible to do so,'' but that 
bulk collection of communications with Americans is not needed.
    Is bulk collection of all communications originating 
overseas, including communications of people in the United 
States, authorized by the Protect America Act?
    Mr. McConnell. It would be authorized if it were physically 
possible to do it. But the purpose of the authorization is for 
foreign intelligence. So when I say--
    Senator Feingold. So there is nothing, there is no language 
actually prohibiting this?
    Mr. McConnell. So long as it is foreign, in a foreign 
country for foreign intelligence purposes.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Before Senator Whitehouse starts, I am just curious. In 
listening to your answers to Senator Feingold's questions, this 
retroactive immunity basically takes away rights of plaintiffs 
who have spent money on suits and so forth. They may not be 
successful if they went through the courts, but it is taking 
away all their rights. And I have heard so many speeches from 
my good friends on the other side of the aisle, everything from 
environmental laws on, as being illegal takings. Was this a 
taking?
    Mr. McConnell. I don't know what you mean by ``taking.''
    Chairman Leahy. Well, if we take away somebody's rights to 
have a suit, we do it retroactively, we do it without any 
compensation. I just throw that out. Your lawyers may want--
don't you try to answer, but it is interesting if we are 
talking about environmental law, it is terrible that we would 
consider this because it is a taking. But if we want to remove 
somebody's rights to a suit, it is not.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Admiral, good to see you again.
    Mr. McConnell. Thank you, sir.
    Senator Whitehouse. Some of what we are going to discuss 
will be well-plowed ground between the two of us because we 
have had these discussions in closed sessions. But I think it 
is important to go over it again in a public session because it 
is my very, very strong belief that the problems that we face 
in adapting the Protect America Act to protect American 
citizens are very solvable. And had it not been for the 
atmosphere of stampede that was created in the waning days of 
the session and had we had a little bit more time to talk 
coolly with one another, we could have solved it working off a 
very sensible template, which is Title III surveillance that 
takes place in the United States right now, such as the Senator 
from Alabama mentioned a moment ago.
    In that context, it is my understanding that there are 
basically two categories of surveillance of Americans that are 
of concern under the Protect America Act. One is the 
surveillance of an American when they are abroad, and the 
second is the surveillance that is incidental to the intercept 
of a target abroad when they happen to speak to an American. 
Can we talk about them in those general two categories?
    Mr. McConnell. Yes, we could, in a foreign context. Of 
course, if it is in the United States, it is--
    Senator Whitehouse. That is a different issue. That is 
covered by existing law.
    Mr. McConnell. Right.
    Senator Whitehouse. Under the Protect America Act, there is 
no court warrant that is required for a person reasonably 
believed to be outside the United States. That is the magic 
phrase in the statute, correct?
    Mr. McConnell. That is correct.
    Senator Whitehouse. And if you look just at the language in 
the statute alone, a person reasonably believed to be outside 
the United States could be an American traveling on vacation, 
somebody visiting family in Ireland, somebody on a business 
trip. It could even mean troops serving in Iraq right now. 
Correct?
    Mr. McConnell. You could interpret it that way.
    Senator Whitehouse. And the protection against it being 
interpreted that way is an Executive order that requires the 
Attorney General to assure that the target is an agent of a 
foreign power. Correct?
    Mr. McConnell. That is correct.
    Senator Whitehouse. Now, the domestic model for this kind 
of surveillance requires, very consistently with the American 
system of Government and the separation of powers, that a court 
get involved and that the executive branch, the FBI, for 
instance, does not get to make that determination on its own.
    Mr. McConnell. Yes, sir. But what you just shifted to was a 
domestic situation where you have a warrant. And what I would 
highlight is in the vast majority of the situations that would 
involve this community, we are targeting a foreigner for which 
there is no warrant. So it is a little bit--
    Senator Whitehouse. I agree, but I am talking about where 
you are targeting an American who happens to be abroad. That is 
the category we are talking about here.
    Mr. McConnell. OK.
    Senator Whitehouse. In that category, as I understand it, 
you have agreed that the Executive order, assuming the language 
is all appropriate and does not create unintended consequences, 
could be codified in this statute. Would you also agree that 
the determination whether the person is an agent of a foreign 
power could be a FISA Court determination rather than a 
determination within the executive branch?
    Mr. McConnell. Sir, that is a possibility, and as we 
discussed the last time we talked about this, it sounds 
reasonable here at the line of scrimmage. But let's see the 
language and examine it, make sure it says what you want it to 
say and doesn't impact us in some way that causes a loss of 
flexibility. And given it doesn't have unintended consequences, 
I personally would have no objection to that.
    Senator Whitehouse. And would you agree at least that by 
bringing in the FISA Court we are matching, in the context of 
an American who happens to be abroad, the type of procedural 
protection that an American enjoys when they happen to be in 
the United States?
    Mr. McConnell. I would.
    Senator Whitehouse. OK. The other issue is the incidental 
intercepts, and as Senator Sessions pointed out, those happen 
all the time. Like him, I have obtained wiretaps before, both 
as United States Attorney and Attorney General. In fact, as 
Attorney General I had to do it myself personally with the 
presiding judge of the superior court because Rhode Island is 
careful about letting that authority loose. When it takes place 
in a Title III context, the restriction on what is overheard 
from those incidental interceptions of people who the target 
calls is protected by minimization procedures. Just the same 
way when somebody calls a target--when you are targeting 
somebody overseas and they call an American, that is also 
protected by minimization procedures. Correct?
    Mr. McConnell. That is correct.
    Senator Whitehouse. The difference, as I see it, is that in 
the domestic surveillance context, the enforcement of those 
procedures, whether the agency actually obeys the rules that 
they are under, is not only enforced by the agency itself, but 
consistent, again, with the separation of powers principles of 
the United States, the court that issued the original warrant 
has some oversight authority over whether or not the 
minimization procedures in its order are complied with. 
Correct?
    Mr. McConnell. That is my understanding.
    Senator Whitehouse. That does not follow into the foreign 
targeting situation, and so if we were to make an equivalent 
role for the FISA Court, to me it would require the FISA Court 
to do two things: one, approve the minimization procedures 
themselves--which, frankly, they do every time they issue a 
warrant, because they are right in the order.
    Mr. McConnell. That is correct.
    Senator Whitehouse. And, two, have a role in making sure 
that the procedures are, in fact, complied with by the 
agencies. Would you have any objection to the FISA Court having 
that role in a general way?
    Mr. McConnell. You just introduced a level of complexity 
and uncertainty that I would say I would be happy to look at 
it. Now, what do I mean by that? In every case where there is 
Title III, in every case, a court has already agreed in advance 
that you are going to conduct this surveillance. And there are 
even--as I understand it, there are even some requirements for 
the Government to notify the party that you conducted 
surveillance against in a criminal situation.
    In the context of foreign intelligence, the mission is 
entirely different. It is foreign intelligence, foreign threat 
to the country. So the way you described it, while it can sound 
reasonable, might it put the court in a position of having to 
decide in advance what we could do with regard to foreign 
surveillance. So I would say--
    Senator Whitehouse. No, that is not my intention either. My 
intention simply is to assure that if you got into a situation 
in which there was a renegade area in the intelligence 
community someplace in which they just simply were not 
complying with minimization--we have had unfortunate instances 
about the National Security Letters and the rules just were not 
complied with. It is helpful, I think, and it is salutary for 
the executive branch officials discharging a responsibility 
like that to know that a court can look in. And whether it is 
the Inspector General reporting to the court or whether there 
are some--but I do think that it is critical that there be a 
FISA Court role just as there would be for incidental 
intercepts on the U.S. side to oversee and make sure that the 
incidental intercepts are being minimized properly in the 
intelligence context.
    Mr. McConnell. Yes, sir, and when we discussed this before, 
the same answer. I am happy to sit down and take the language, 
look at it and have it examined, with some time--not like where 
we were before--so that we really understand what are the 
intended and the potentially unintended consequences, and so 
that we both satisfy ourselves that we are protecting Americans 
and we are not impacting our foreign intelligence mission. I 
would be happy to do that.
    Senator Whitehouse. Mr. Chairman, I think if we are 
thoughtful about going about this the way the Admiral has 
suggested, we will find that a lot of the disagreement and 
concern and anxiety and, in some cases, anger and frustration 
that emerged in the August stampede can be easily worked 
through, and we can get to a bill that makes a lot of sense for 
Americans and is consistent with the expectations that are 
longstanding under Title III.
    Thank you very much.
    Chairman Leahy. Well, the Senator from Rhode Island is 
right, and one of the reasons for having these hearings now 
well in advance of the time when the sunset provision comes is 
so we can do that. Of course, many of us thought we had worked 
out that, and we were quite surprised when apparently at what 
many of us felt was the last moment, it seemed the 
administration had a different idea. The Chairman of the Senate 
Intelligence Committee has written a significant letter, and I 
don't know if that letter is classified or not, but I know the 
Senator from Rhode Island has seen it.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Admiral, you have made the point, I think, very clear that 
the intelligence collection at issue here is vital to our 
national security and that Americans' rights are not being 
violated. But from a lot of the questions, I suspect to the 
average American this seems very complicated. And I would like 
to just have you explain two things for us using the most 
direct language you can in a non-classified context: to explain 
why this kind of collection is not suited to the usual court 
procedure for a criminal suspect, like we would see in a TV 
series, for example, and why it is not constitutionally 
necessary in any event.
    Mr. McConnell. Sir, the situation we find ourselves with is 
literally there are billions of transactions, and the targets 
of foreign surveillance are very dynamic and they change, and 
they could change modes of communication and so on. So for us 
to have the inherent flexibility that we need to be responsive 
and to collect the information we need to protect the country, 
being encumbered by a court process to extend due process 
rights to a foreigner, a terrorist located overseas, puts us in 
a situation where we can't be flexible, we can't keep up. We 
started this process last winter, and because of the wording in 
the old law, it was requiring us, because communications 
completely flipped from 1978 until today, whereby international 
communications were on a wire, fiber optics, and they happened 
to flow through the United States, then we were in a situation 
to do foreign target, foreign country, we had to stop and get a 
warrant.
    It is so dynamic that we were losing ground. We had a level 
of capability. It was reviewed by the court. We started at that 
level. And subsequent reviews--not because of the court, 
because of the wording in the law--we started reducing our 
capability. It was reduced in that review period about two-
thirds.
    I thought, OK, we just add more resource, we go faster, 
whatever. The issue is there is a finite number of linguists 
and analysts that speak the languages, understand the problems, 
so you are forced into a situation of pulling people off 
position to write probable cause standard warrant requests for 
a foreigner overseas. And as a practical matter, we are falling 
further and further behind.
    So I felt a responsibility to identify that as an issue. 
The law captured it one way in the late 1970s. Technology 
changed, and we just need to recognize that and accommodate it 
to make it technology neutral. That is the sum and substance of 
what we are attempting to do.
    I mentioned earlier that what I was after was three points: 
no warrant for a foreign terrorist located overseas; a way to 
compel and cause protection of the carriers that would assist 
us, because we can't do this without them; and then to require 
this community always, always, always, to get a warrant anytime 
it involves surveillance of a U.S. person.
    And so those were the principles, and we are where we are 
with this law that was passed, and we are going to review it 
again. That is what I am going to try to maintain consistency 
with regard to our capability so we can indeed protect the 
country. And all the things that are suggested--there were 
seven bills exchanged back and forth. Some of them attempting 
to fix A, in fact, shut us down at B or C or D. And that is why 
I say happy to look at it, but we have got to examine it in the 
cold light of day.
    Senator Kyl. Never in the past--and, again, I hate to make 
it a matter of entertainment, but you see the spy movies and so 
on, when we send our spy abroad or James Bond is out looking to 
collect secrets. If you are abroad and you are collecting 
secrets against an enemy that is abroad, there has never been a 
requirement for a court warrant, has there?
    Mr. McConnell. No, sir.
    Senator Kyl. And it is arbitrary distinction, therefore, 
that in this particular case, just because a particular 
transaction happens to be routed through the United States but 
still involves foreigners, in terms of the reason for a change, 
there is no new reason for the change.
    Mr. McConnell. No, sir. The attempt was to take what was 
captured in 1978, which in my view was right, and make it 
relevant to 2007.
    Senator Kyl. And this is very important information in 
going after terrorists that we are fighting.
    Mr. McConnell. Sir, it is vital. If we don't have access to 
this, we are in most cases blind.
    Senator Kyl. And when you finally identify an American as 
somebody that we want to target, then the procedures, the usual 
due process procedures that we see, then they apply.
    Mr. McConnell. Yes, sir.
    Senator Kyl. Now, some have said, well, but if you find 
that you are beginning to focus in on somebody because he is 
making quite a few domestic calls, calls that you cannot know 
when you first look at what he is doing where those calls are 
going, but it turns out that some of them start being made 
domestically, first of all, might that be important for us to 
know? And if so, why? And--well, let me ask that first.
    Mr. McConnell. It could be the most important call we would 
do in a long period of time because that may be activating a 
sleeper cell. So the only way we know that is when a targeted 
foreigner activates by calling in. So that is why it would be 
essential for us.
    Senator Kyl. And if you had some kind of arbitrary number 
and they said, well, you have to have a warrant if the person 
has made more than 15 calls into the United States or 
something, it would be pretty obvious. What they would do is 
simply make 16 calls to a pizza parlor or something and then 
make another call.
    In other words, if we put statutory limitations--they are 
in statutes and, therefore, obviously are public--it could be 
possible for terrorists to get around the intent of what we are 
trying to accomplish here.
    Mr. McConnell. Yes, sir. That would take away our inherent 
flexibility. I would also highlight that in the eyes of the 
law, a U.S. person could be not only a human being, it could be 
a corporation. So if terrorists are ordering parts or 
scheduling travel or whatever, that may be the vital interest 
to us to track the terrorist, not intending that we are 
tracking a travel organization or an airline or whatever.
    So the point you made is very, very important. It is the 
inherent flexibility to be responsive to the threat in a way 
that is useful, still respecting civil liberties by, if that 
person ever becomes a target, then you do a warranted process.
    Senator Kyl. In terms of fighting these particular Islamic 
terrorists who have both attacked us here and also attacked us 
abroad, there is sometimes a debate about what is more 
important--fighting in a place like Afghanistan or Iraq, or 
having good intelligence. I have always had the view that 
ultimately the best way to protect our homeland involves two 
things: denying these terrorists a sanctuary, a free place to 
operate, but also, and perhaps even more importantly, having 
absolutely the best intelligence so that we can understand what 
they are up to and, therefore, better protect the homeland.
    How would you characterize the importance of this kind of 
intelligence gathering in this particular conflict?
    Mr. McConnell. Sir, it is essential, and I would go further 
to say the terrorist group that we are all talking about, al 
Qaeda, is very resilient and adaptive. We know their intent, 
and they are going through a process now to figure out how to 
recruit, train, and prepare an operative and get them back into 
the country to have attacks similar to 9/11 or something of 
that nature.
    So the challenge for us becomes how do we see it, know it, 
understand it, and prevent it, and this process in large 
measure is how we do that.
    Senator Kyl. In time.
    Mr. McConnell. Yes, sir. In time.
    Senator Kyl. Thank you.
    Chairman Leahy. Admiral, are you aware of any time that 
this administration has asked for a change in the FISA law when 
it has not gotten it?
    Mr. McConnell. I think there was a request--yes, sir, last 
summer, I believe. Some of the members of this Committee 
introduced legislation that was passed on the House side, but I 
guess there was no agreement, so it did not pass.
    Chairman Leahy. But was that requested by the 
administration?
    Mr. McConnell. I don't know the origin of the source.
    Chairman Leahy. There were seven or eight during this 
administration. It seems we must have been answering some of 
their questions.
    Mr. McConnell. The language originated on the Hill last 
year, sir, I have just been advised. I was not playing, sir. I 
just didn't know.
    Chairman Leahy. OK. Now, you have referred to the use of 
minimization procedures, and those of us who have been here 
since the beginning of this law are aware of those. But under 
the Protect America Act, minimized communications are not 
destroyed. They are maintained in a data base. Is that not 
correct?
    Mr. McConnell. That is not correct. No, sir.
    Chairman Leahy. It is not.
    Mr. McConnell. If they are minimized, you would take them 
out of the data base. Minimization today is exactly as it was 
in 1978. That was the agreement, the process that was agreed to 
then.
    Chairman Leahy. So these minimized communications are not 
maintained in the data base?
    Mr. McConnell. No, sir. If it is in the data base and 
recognized, it would be expunged from the data base. Now, what 
you are making reference to is this is the fourth hearing on 
this subject since last Tuesday, and in there what I talked--in 
a previous hearing I talked about data that may be collected in 
a data base that you don't know it is there.
    Chairman Leahy. All right.
    Mr. McConnell. You wouldn't know it is there until you had 
a reason to go search it. So it could be there. It just--
    Chairman Leahy. Under the Protect America Act, the FISA 
Court has no role in the oversight of minimization, does it?
    Mr. McConnell. It does if there is--anytime it involves a 
warrant and a U.S. person, the Court would in its ruling have 
available to it in the context of minimization--
    Chairman Leahy. Are they shown the minimization procedures 
the Government uses?
    Mr. McConnell. I am sorry, sir?
    Chairman Leahy. Are they shown the minimization 
procedures--
    Mr. McConnell. Yes, sir, they are.
    Chairman Leahy. I will do a couple of followup questions on 
this for the record, and I hope you and your lawyers look at it 
very, very carefully. As I said, I am not trying to play 
``gotcha.'' And if there are answers in here where, upon 
reflection, you think they should have been different, you have 
plenty of time to do that.
    Mr. McConnell. I appreciate that, Mr. Chairman.
    Chairman Leahy. You have identified as one of your highest 
priorities giving the retroactive immunity--and we have touched 
on this, several of us have--to communication companies that 
may have broken the law in helping to carry out the 
Government's secret surveillance program after 9/11. As you may 
know, the State of Vermont, along with a number of other 
States, is seeking to investigate some telecommunication 
carriers for disclosing consumer information to the NSA in that 
program. There is a lawsuit, I believe in the Ninth Circuit, 
that would be dismissed if the carrier is granted immunity. 
That is why I asked the question about taking.
    Now, this Committee has issued subpoenas, voted for by both 
Democrats and Republicans, seeking information on this. We have 
received no documents, no information about the legal 
justification for the warrantless surveillance program. We are 
in the dark about what the legal justification was, what 
communications took place between the administration and the 
communication companies to secure private sector cooperation 
for the program. For 2 years, we have been seeking the legal 
justification and the analysis and what the administration 
relied on to conduct the President's program of warrantless 
surveillance. We are, however, asked to pass laws to immunize 
everybody and to wipe out of court any cases. And basically we 
are asked to do that on a total ``trust me'' basis. We will not 
tell you what we did or what we based it on or why, but please 
pass a law saying that you have made a studied conclusion that 
everything we did was OK and thus immunize us. I am not sure if 
you were presented with something like that you would be too 
eager to accept that.
    Do you have any objection from an operational or a national 
security perspective to having the Congress see these 
documents, legal documents on which this justification was 
based, on either a classified or unclassified basis?
    Mr. McConnell. Sir, that is a call the White House will 
have to make. My personal philosophy in how to conduct this 
business is oversight is a good thing; it keeps the system 
honest. And so engaging with the Congress and providing the 
appropriate level of information for the oversight process is 
what we should do.
    Now, that said, there are going to be judgment calls about 
what is privileged or not, and there will be differences of 
opinion. The Constitution did say co-equal bodies, and a lot of 
this is at the constitutional level. So you are asking me if I 
can solve that. I cannot.
    Chairman Leahy. No. I am saying as DNI, just simply as DNI. 
Obviously, the judgment call is going to be made by the 
administration. But as DNI, do you have any objection to these 
legal memoranda being shared, these historical legal memoranda 
being shared with this Committee?
    Mr. McConnell. Sir, my history on this starts in January 
when I was nominated and February when I was confirmed. What I 
am trying to do in my role--
    Chairman Leahy. But, obviously, you have seen historical 
legal--
    Mr. McConnell. I have not. I have not. What I have 
attempted to do here is to take where we are today and put it 
wholly under the law and the FISA process for how we conduct 
our business. All of it. There is nothing extreme or--so 
anything that we do in the nature of the business we are 
talking about would make it--I would be happy to--
    Chairman Leahy. But, Admiral, you are up here lobbying to 
have us wipe out these cases retroactively by legislation.
    Mr. McConnell. Sir, I would--
    Chairman Leahy. I mean, isn't this kind of asking us to buy 
a pig in a poke?
    Mr. McConnell. No, sir, it isn't. First of all, I would 
object to the word ``lobbying.'' I am here because you invited 
me here. And I am testifying, not lobbying.
    Chairman Leahy. I am thinking of some of it during--I am 
going back to July and August in some of your meetings. You can 
call it whatever you want. You were advocating for retroactive 
legislation.
    Mr. McConnell. I have a responsibility as the leader of the 
Nation's intelligence community to make recommendations to this 
body and the administration about what it is we need to do our 
job, and that is how I saw my role, and that is what I hope 
to--in the final analysis, when it will be looked back on, that 
is what I was doing.
    Chairman Leahy. Are you conducting, if you want to answer 
this, under the PAA or otherwise, are you conducting physical 
searches of homes or businesses of Americans or Americans' mail 
without a warrant?
    Mr. McConnell. That would not be the business that I 
represent. If that situation were to take place, it would be 
the responsibility of the FBI, and they would do it with a 
warranted process.
    Chairman Leahy. But you are not?
    Mr. McConnell. No, I am not.
    Chairman Leahy. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Just a couple of 
questions, because we have another panel waiting to be heard.
    When I questioned you on the first round, I brought up the 
issue of the targeting of U.S. persons overseas and noted that 
there is an Executive Order which requires the Attorney General 
to certify that there is probable cause. My own view is that 
there ought to be that determination made by the FISA court.
    In response to a question of Senator Hatch, you said there 
are only about 50 to 55 of those a year, so it would not be a 
great administrative burden. Would you concur--or perhaps 
better stated, have any objection--to, in the next version of 
the statute, to give the FISA court the authority to authorize 
targeting U.S. persons overseas?
    Mr. McConnell. Sir, as I indicated earlier, I would have no 
personal objection. What we would have to do is look at the 
language to examine any potential unintended consequences. The 
difference would be the authority for the warrant going from 
the Attorney General into the FISA court. So that seems to me, 
on the face of it, to be a manageable situation.
    There are reasons that we could go into in a closed session 
that it was set up the way it is, and I would be happy to share 
that with you. But let us examine that in closed session, make 
sure it does not have unintended consequences, and I would be 
happy to say, let's examine it.
    Senator Specter. Are you saying that there are reasons 
vested in the Attorney General, the determination of probable 
cause, instead of the FISA court--and when probable cause is 
established, that is the traditional basis for the issuance of 
a warrant.
    Mr. McConnell. Yes, sir. Let me separate ``U.S. citizen'' 
from ``U.S. person''. In ``U.S. citizen'', it is easy. ``U.S. 
person'', it may present us a situation where we would just 
need to make you aware of the full range of potential impact.
    Senator Specter. But it is ``U.S. person'' where you have 
to have a warrant for targeting in the United States.
    Mr. McConnell. That's correct, sir.
    Senator Specter. So if the classification is ``U.S. 
person'', what difference would it make whether it's in the 
United States or outside the United States?
    Mr. McConnell. I was just trying to highlight, in my view, 
a U.S. citizen shouldn't be expected to give up their rights, 
regardless of where they're located. So it's a higher standard 
for ``U.S. citizen'' as opposed to ``U.S. person''.
    A U.S. person can be a foreigner, or could even be a 
terrorist that was located in the United States, say a 
foreigner here, a green card. In the legal context, you could 
consider that person a U.S. person, even though they traveled 
back overseas. So I'm just trying to say there's an issue in 
there we need to examine.
    Senator Specter. Well, I don't see the distinction between 
according the same degree of privacy to a U.S. person, whether 
they're in the United States or outside the United States, but 
we'll reserve judgment on that until we discuss it in closed 
session.
    With respect to the approval of the FISA court on targeting 
people outside the United States, the objection has been made 
by you and the administration that there would be insufficient 
flexibility to require that going before the FISA court. But 
you acknowledge that the FISA court should review, at a 
minimum, their procedures. Correct?
    Mr. McConnell. Yes, sir. And you said ``person''. I would 
just highlight, make sure it's ``foreign person located 
overseas''. That's the part that they would--
    Senator Specter. Foreign person located overseas.
    Mr. McConnell. Foreign person. Yes, sir.
    Senator Specter. OK.
    Now, you need the flexibility to do that without prior 
approval by the FISA court because of the numbers involved?
    Mr. McConnell. Yes, sir. It's a very dynamic situation.
    Senator Specter. Dynamic. You mean large in numbers?
    Mr. McConnell. Large. Huge. Huge. Yes, sir.
    Senator Specter. Dynamic meaning too many to do, you say?
    Mr. McConnell. Fast-changing. Yes, sir.
    Senator Specter. Explain why that is.
    Mr. McConnell. The--
    Senator Specter. Let me finish the question. Why you can't 
handle that administratively to submit those applications to 
the FISA court with a statement of probable cause.
    Mr. McConnell. Well, first of all, it's extending the 
probable cause standard and Fourth Amendment protection to a 
foreigner overseas. So my argument would be, to maintain the 
flexibility of our community to do our mission, why would you 
insert that as a standard because it's an additional burden on 
the community to be flexible now?
    Senator Specter. Well, it may be a burden, but that's not 
the determinant as to whether you ought to have the burden. The 
question is whether the burden is unreasonable and precludes 
you from doing your job. Is that what you're saying?
    Mr. McConnell. Yes, sir. It is unreasonable on the face of 
it and it precludes us from being effective in our job.
    Senator Specter. OK. Now, the question is why? Just as a 
result of the sheer numbers?
    Mr. McConnell. Numbers and the dynamic nature of it. Most 
of our conversation today--
    Senator Specter. That's the second time you've used the 
word ``dynamic''. Tell me what you mean by that.
    Mr. McConnell. Fast-paced, rapidly changing.
    Senator Specter. OK.
    Mr. McConnell. And most of our discussions have been around 
terrorists. That's a reasonable number of people. But the 
foreign intelligence mission of the community is foreign, so by 
definition it's anything that is not American. When we have 
taken great pains in a number of cases to prioritize who we 
target and so on, we inevitably get it wrong. In the previous 
administration, we did a tiering mechanism, like 1 through 5. 
Five was absolute targets, got to cover them, got to be very 
exhaustive in our coverage.
    As it turned out, where U.S. forces were asked to engage or 
in some way be committed, it was almost all in the tiered areas 
that we weren't covering. Examples include Haiti, Somalia, and 
even as far back as Panama. Those situations that pop up in 
which you have to be responsive and dynamic to respond to so 
you understand who the threats are, how they're changing, what 
are the intentions, what are the weapons systems, how might 
they engage, what might cause them to back down. All that is a 
very dynamic issue.
    Senator Specter. So you're saying you have to respond 
immediately?
    Mr. McConnell. Yes, sir.
    Senator Specter. Have you gone back to the FISA court to go 
through the procedures which you're now using in targeting 
foreign persons overseas?
    Mr. McConnell. Yes, sir. We submitted all the procedures to 
the court and they're reviewing them now.
    Senator Specter. They're reviewing them?
    Mr. McConnell. Yes, sir.
    Senator Specter. Would it be too burdensome to ask you to 
submit those procedures to the court every three months?
    Mr. McConnell. They wouldn't change, but that would not be 
a great burden. No, sir.
    Senator Specter. OK.
    Mr. McConnell. The only thing I want to highlight is, if 
I'm in a position where the court has to rule on something 
before I can conduct a mission, we could never turn fast enough 
to allow us the flexibility.
    Senator Specter. My suggestion would not be to deal with 
specific warrants where you'd have to go back, but only the 
procedures.
    Mr. McConnell. Yes, sir.
    Senator Specter. But if you did it every three months, 
wouldn't it be reasonable, on the reapplication, to show the 
court what you have accomplished so that they could then 
consider the value of the program in deciding whether the 
procedures are sound?
    Mr. McConnell. Sir, I would object to that because in my 
view it would now start to insert into the process an 
evaluation by the court for which it is not trained or prepared 
with in regard to the effectiveness of the foreign intelligence 
mission. Let me use a couple of examples.
    Senator Specter. Well, now, wait a minute. Are they any 
less prepared for that than they are for determining the 
importance on targeting a U.S. person in the United States?
    Mr. McConnell. The purpose, in my view, of targeting a U.S. 
person in the United States is to ensure that we have adequate 
protections for a person in the United States. They will 
examine--first of all, the numbers are small, very small. They 
would have the facts of the situation. They could make a 
judgment and they could do enough research to make an informed 
judgment. If you're talking about thousands, tens of thousands, 
or hundreds of thousands of things that are transpiring in a 
foreign context, my view is that they just couldn't keep up 
with that process. There are 11 judges. One sits at a time.
    This community is made up of tens of thousands of people 
that engage in a very dynamic process, issuing lots of reports, 
lots of coordination, and lots of cross-queuing. So something 
that seems relatively innocuous on the face of it might turn 
out to be the most important thing we're chasing.
    Example. Movement of nuclear material on a foreign flagship 
of convenience that is moving from the Pacific into the Indian 
Ocean. We may not even know that ship is under way, but at some 
moment there is some clue and we have got to be very responsive 
in how we would try to track back, where did it originate, what 
might it have on board, where is it going, who are the players, 
and so on.
    That's just the situation we find ourselves in on a regular 
basis. That's just one tiny segment of the community. So that's 
what I mean by very dynamic and very interactive. We're trying 
to solve a foreign intelligence problem that someone in the 
administration has a need for, tracking nuclear material, 
preventing weapons of mass destruction, negotiating with a 
country that might receive it, whatever. You can go on and on 
and on.
    Senator Specter. I get your point, Director McConnell. I am 
over time, but this is important and I want to finish it.
    Mr. McConnell. Yes, sir.
    Senator Specter. I get your point on the dynamism of being 
able to act without getting court approval. But I'm on a very 
different point. I'm on the point of going back for renewal, 
say, in 3 months as to procedures, and at that time saying to 
the court, we want to continue this under these procedures, and 
this is what we've accomplished.
    Because without telling you you can't do it, but we want to 
evaluate it, you are reaching some U.S. persons overseas, and 
we have elaborate minimization, it seems to me that there is a 
good basis for having the court take a look at what you've done 
to see the intrusiveness, even though there are a lot of 
foreign people involved, but there are some U.S. people 
involved, as to whether it's worth the candle.
    Mr. McConnell. Sir, the reason I would object to it is, at 
the 99.99 percent level, it's totally foreign. So by having the 
court make that judgment, you are introducing a level of 
ambiguity and uncertainty that I don't know how it would come 
out. So now let's go back to the U.S. persons situation. In 
that case, if the court chooses to look at it, they've issued a 
warrant and post facto they want to review, or as was suggested 
by Senator Whitehouse, they look at minimization after the 
fact. That's more of a manageable problem.
    But to have the court in a position of saying what you 
collected is or is not of sufficient intelligence value, in my 
view that's not the appropriate role for the court. My worry is 
a level of uncertainty and ambiguity that I don't know how it 
will come out. We do the mission for foreign intelligence. 
There are oversight committees on the Hill that look at that, 
can evaluate it in any cross-cut or any dimension, and we're 
responsive to the administration, who has given these targets 
for foreign intelligence collection purposes.
    Senator Specter. Well, I'm not satisfied with this answer, 
but we have to move on. You and I will talk about this further. 
Thank you.
    Chairman Leahy. I think it's a good issue. I also will 
follow-up. I think Senator Specter has raised a very valid 
question and we should talk about that more, certainly before 
we get to the time we have to reauthorize any part of this Act.
    Admiral, I know you are an extraordinarily busy man and I 
appreciate you being here. We will have some follow-up 
questions. Some may have to be answered in classified form. Of 
course, we have provisions to handle that, as you know. You 
should also feel free, on some of the questions I may have, if 
you have a question on it, just call me.
    Mr. McConnell. All right, sir. Will do. Thank you.
    Chairman Leahy. I'm easily reachable.
    So now, thank you very much. We'll set up for the next 
panel.
    Senator Feingold has offered to preside in my absence, and 
I appreciate that. He is also a member of the Senate 
Intelligence Committee, which will make it twice as helpful.
    Senator Feingold. We will now turn to the second panel of 
witnesses, if they would come forward, please.
    Will the witnesses please come to the witness table and 
stand to be sworn in? Would you all please raise your right 
hand to be sworn?
    [Whereupon, the witnesses were duly sworn.]
    Senator Feingold. Thank you. You may be seated.
    I want to welcome all of you, and thank you for being here 
with us today, and for your great patience while the committee 
questioned Director McConnell.
    I ask that you each limit your opening remarks to 5 
minutes, as we do have a fair amount to go through. Of course, 
your full written statements will be included in the record.
    Our first panel begins with James Baker. Mr. Baker is a 
lecturer at Harvard Law School, currently on leave from the 
Justice Department. Until January of 2007, he served as the 
head of the Office of Intelligence Policy and Review at the 
Department of Justice, which is the office that represents the 
government before the Foreign Intelligence Surveillance Court.
    In 2006, Mr. Baker received the George H.W. Bush Award for 
Excellence and Counterterrorism, the CIA's highest award for 
counterterrorism achievements.
    Mr. Baker, you are, of course, welcome. Thank you for being 
here today. You may proceed.

   STATEMENT OF JAMES A. BAKER, LECTURER ON LAW, HARVARD LAW 
SCHOOL, FORMERLY COUNSEL FOR INTELLIGENCE POLICY, DEPARTMENT OF 
                    JUSTICE, WASHINGTON, DC

    Mr. Baker. Mr. Chairman, thank you very much, and members 
of the committee. Thank you for the opportunity to appear here 
before you today to discuss possible changes to FISA and the 
Protect America Act.
    I would just comment on my background, that in addition to 
what you mentioned, Mr. Chairman, I have prepared, reviewed, or 
supervised the preparation of thousands of FISA applications 
over the time period that you're talking about.
    The Department of Justice has specifically approved my 
appearing here before the committee today, but let me emphasize 
that I am appearing here strictly in my personal capacity and 
that the views that I express do not necessarily reflect those 
of the Department or the administration.
    In the short time that I have, I'd just like to focus on a 
couple of brief points, Mr. Chairman. First of all, FISA, as 
originally enacted by Congress in 1978 and as amended up until 
the Protect America Act in August of this year, was extremely 
productive over the years. It permitted robust collection of 
foreign intelligence information, including actionable 
intelligence information, which means that the Intelligence 
Committee could take action on it to thwart the plans and 
activities of foreign adversaries, including terrorist groups. 
As a result, in my opinion FISA has proven very valuable during 
wartime.
    We did this in part by making robust use of FISA's 
emergency provisions. I am happy to discuss those provisions 
and the procedures with you in response to questions, but I 
just would note that it may take some time to do that in order 
to give a proper description of how the system actually worked.
    In addition, FISA also permits us to disseminate foreign 
intelligence information appropriately within the U.S. 
Government and to our foreign partners. It allows us to use 
information acquired as evidence from a FISA collection in 
criminal trials, with the approval of the Attorney General.
    In addition, everyone within the system had the comfort of 
knowing that their actions were lawful and that they would not 
be subject to lawsuits or criminal prosecution as a result of 
an action that they were taking in accordance with an act of 
Congress and a Federal court order.
    Let me also state that it seems to me that there's a bit of 
a paradox here in the discussion that we're having because the 
calls for FISA to be amended--the original FISA to be amended--
came ultimately from the success of FISA itself.
    Because FISA had enabled the collection of vital, timely 
intelligence, including information about the activities of 
overseas terrorists, the intelligence community came to regard 
FISA as a critically important collection platform and it 
increasingly turned to FISA to obtain important foreign 
intelligence.
    FISA also expanded the understanding by other intelligence 
community elements of the value of certain types of collection. 
Growth in the targeting of foreign operatives over time 
resulted in the desire to change the law that we are discussing 
today.
    What I would suggest is, before you decide to renew or 
amend FISA or the Protect America Act, or make other changes to 
FISA, I would recommend that you ask the intelligence community 
for a full assessment of the value of FISA as originally 
enacted, or at least as enacted prior to August of this year.
    Let me just make a few brief comments about the scope of 
the original FISA. No means of collection were barred by the 
1978 statute. In other words, all modern forms of communication 
were subject to collection under FISA.
    My written statement discusses some of the questions that 
have arisen regarding the state of technology in 1978, what 
Congress understood about that technology, and what it intended 
to cover when it enacted FISA, and what the law actually says. 
For the sake of brevity I will not repeat those here, but I 
will just say that they are complex questions that require 
additional research to answer authoritatively.
    At the end of the day, though, the real questions, it seems 
to me, are not regarding whether, or how, to modernize FISA and 
are not technological in nature. The real question at the end 
of the day is whether the government's collection activities 
comport with the Fourth Amendment.
    The answer to that question will depend on many factors, 
including, but not limited to, the following. First of all, 
what is the identity and the location of the person or persons 
whose communications are collected and reviewed?
    For example, where is the target, U.S. or abroad? Who is 
the target, a U.S. person or a non-U.S. person? Whose 
communications are intercepted in addition? We've talked about 
that before. The committee talked about that before with 
respect to incidental communications, but it's broader than 
that as well. What is the identity of these people whose 
communications are being collected?
    The next thing is, with what degree of confidence can you 
answer the questions that I have just posed? Do you really know 
where these people are? Do you really know who they are?
    In addition to those questions, there is another set that 
have to do, it seems to me, with the collection procedures that 
are in place. So, for example, who is the decisionmaker? That 
is, who is making the decision about foreign intelligence 
collection before it begins? Someone from the executive branch, 
a Federal judge, for example?
    What level of predication is required--that is, how much 
paperwork and explanation is necessary to justify collection--
and what standard of review should apply? Should it be probable 
cause, something lower, no standard at all? What should it be?
    Further, how particular should the approvals be? Should 
they be specific with respect to a particular phone number? Can 
they be more programmatic? How exactly should it work? In 
addition, what are the standards for acquiring, retaining, and 
disseminating foreign intelligence information? These are the 
minimization procedures you've just discussed at length. 
Further, how long can the collection run without being 
reviewed?
    The lower the level of approval and the lower the level of 
factual predication and the less specific the authorizations 
need to be, obviously the more quickly and more easily the 
intelligence community can start collection and sustain a 
greater volume of collection. I think that is what is meant by 
when someone says we need to achieve greater speed and agility 
in foreign intelligence collection.
    Again, the Fourth Amendment lies at the foundation of all 
these questions. When the government--
    Senator Feingold. Mr. Baker, I'm going to have to ask you 
to conclude.
    Mr. Baker. I'll sum up very quickly. Let me just focus on 
this. There are Fourth Amendment interests at issue. The Fourth 
Amendment is implicated during the following situations: when 
the government targets U.S. persons or people in the United 
States, when it acquires, listens to, or stores and later 
examines, a communication to which a United States person is a 
party, or when it intercepts and scans the content of such a 
communication in order to determine who it is to, from, or 
about.
    Let me just say that when I say the Fourth Amendment is 
implicated, I do not necessarily mean that a warrant is 
required in all those situations, but the collection has to be 
reasonable when you're collecting information about people who 
are protected by the Constitution.
    Mr. Chairman, thank you for your time.
    Senator Feingold. Thank you. I regret our time limitations 
and appreciate your testimony.
    [The prepared statement of Mr. Baker appears in the 
appendix.]
    Senator Feingold. Our next witness will be James Dempsey. 
Mr. Dempsey is no stranger to testifying before Congress. We 
are pleased to have him with us today. He is currently the 
Policy Director at the Center for Democracy and Technology, 
where he has been on staff since 1997.
    Prior to joining CDT, Mr. Dempsey was Deputy Director of 
the Center for National Security Studies, and before that Mr. 
Dempsey was Assistant Counsel to the House Judiciary Committee 
on Civil and Constitutional Rights, where he concentrated on 
oversight of the FBI, privacy, civil liberties, national 
security, and constitutional rights. He is also the author of a 
number of articles on privacy and Internet policy.
    Thank you for being here, sir, and you may proceed.

  STATEMENT OF JAMES X. DEMPSEY, POLICY DIRECTOR, CENTER FOR 
      DEMOCRACY AND TECHNOLOGY, SAN FRANCISCO, CALIFORNIA

    Mr. Dempsey. Senator Feingold, Senator Specter, Senator 
Whitehouse, good afternoon. Thank you for the opportunity to 
testify at this hearing.
    As the committee well knows, the issue before Congress has 
nothing to do with terrorism suspects overseas talking to other 
people overseas. The debate for the past year has been about 
the communications between people in the U.S. and people 
overseas.
    Here is the dilemma. The National Security Agency needs 
speed and agility when targeting persons overseas. It should 
not be required--not be required--to get individualized orders 
when targeting non-U.S. persons abroad. Many of NSA's targets 
overseas will communicate only with other foreigners, never 
affecting the rights of Americans.
    In addition, NSA can often not tell in real time who a 
foreigner overseas is communicating with, and obviously it can 
certainly not predict in advance whether a targeted person 
overseas will communicate with an American or not sometime in 
the course of a coverage.
    We recognize these concerns. However, it is also certain 
that some of the persons of interest to NSA overseas will 
communicate with people in the U.S. Some percentage of NSA's 
activities targeted at people overseas will result in the 
acquisition of communications to and from American citizens, 
and those will be retained, analyzed, and in some cases, 
disseminated.
    So how can we give the government the flexibility, the 
speed, and agility it needs while protecting the rights of 
Americans whose communications are being intercepted and 
disseminated? Now, at this hearing so far I've heard a lot of 
progress being made and I've heard the outlines of an approach 
that is better than the approach in the Protect America Act 
along the following lines.
    First, use plain English, not the ambiguous and confusing 
language found in the Protect America Act. The DNI said he 
can't even remember now why the word ``concerning'' was used in 
the legislation. The issue at stake concerns--and here is where 
I would focus--the government's authority to acquire 
communications to or from non-U.S. persons reasonably believed 
to be outside the United States when those communications are 
acquired, in real-time or in storage, with the assistance of a 
communications service provider. Say it that way, plain 
English. That would clear up a lot of the concerns about 
physical searches, mail openings, et cetera. The DNI, I think, 
agreed that better language is needed.
    Second, is to focus, as the DNI says, on the rights of 
Americans regardless of geography, require a particularized 
court order when the government is targeting a U.S. person 
regardless of where the U.S. person is. Again, I heard the DNI 
say, at least in principle, that he accepted that proposition.
    Third, establish a procedure for the FISA court to review 
and approve in advance the procedures for ensuring that the 
persons being targeted abroad are reasonably likely to be non-
U.S. persons outside the United States. Now, it should be a 
real judicial review and not the clearly erroneous standard 
that's in the PPA, a genuinely effective standard.
    By prior review--and I think this is where Senator Specter 
and the Director of National Intelligence had a little 
disconnect--we don't mean a prior individualized warrant. We 
would say, though, that the court should look at the procedures 
for how, generally speaking, the targeting is done and also 
should review in advance the minimization procedures.
    Again, the DNI said that he would submit the minimization 
procedures to the court for review, not in a way that would 
interrupt their individualized targeting, but in a way that 
would protect the rights of Americans. Bringing the 
surveillance under a court order has numerous advantages.
    It would make the surveillance more likely to be found 
constitutional. It would provide companies with the greater 
certainty that they would get from a court order compelling 
their cooperation rather than just a letter from the Attorney 
General, and it would give the court ongoing jurisdiction to 
supervise how the minimization rules are being applied.
    On that point, the fourth element that I heard some 
beginning of agreement on, the DNI said they have a procedure 
at the analysis and dissemination stage--not at the collection 
stage, but at the analysis and dissemination stage they have a 
procedure for determining who is a U.S. person.
    That should be noted, recorded, and reported to the court, 
and at a certain point the court will decide that the focus of 
this investigation or the focus of this activity has now 
implicated the rights of an American to the extent that an 
individualized order may be required.
    Finally, a balanced solution would address exclusivity and 
immunity. The issue of future exclusivity must be addressed and 
resolved first, since it has to be made clear that service 
providers will not get an ongoing series of free passes for 
violating the statute.
    This approach addresses all of the concerns of the 
administration, while still providing the court approval and 
ongoing supervision that were the cornerstones of FISA. The DNI 
talked about the importance of flexibility. What I heard today, 
urging from the questioning, was a system of supervised 
flexibility, and that is where I think we should go. Thank you.
    Senator Feingold. Thank you for your useful testimony, Mr. 
Dempsey.
    [The prepared statement of Mr. Dempsey appears in the 
appendix.]
    Senator Feingold. Our next witness is Bryan Cunningham. Mr. 
Cunningham is an information, security, and privacy lawyer and 
a principal at the law firm of Morgan & Cunningham in Denver, 
Colorado. Mr. Cunningham has held senior positions in both the 
Bush and Clinton administrations. He served for 2 years as 
Deputy Legal Advisor to then-National Security Advisor 
Condoleezza Rice.
    Mr. Cunningham, please proceed.

STATEMENT OF BRYAN CUNNINGHAM, PRINCIPAL, MORGAN & CUNNINGHAM, 
                LLC, GREENWOOD VILLAGE, COLORADO

    Mr. Cunningham. Thank you, Mr. Chairman, Senator Specter, 
members of the committee, and thank you for the opportunity to 
again address the committee on this important issue.
    Just one other background bio note I would make, is that I 
served for 6 years under President Clinton and 2 years under 
President Bush. Shortly after the disclosure of the terrorist 
surveillance program, a Democratic colleague and I published an 
op-ed piece in which we suggested that the eavesdropping debate 
we should be having would have three touchstone elements: 1) it 
would maintain the balance between civil liberties and national 
security that was enshrined in the original 1978 statute, but 
in ways that caught up with technological change, which in our 
view had clearly made the statute unworkable; 2) in doing so it 
would ensure that, while perhaps the methods would not be the 
same, the same civil liberties interests would be protected; 3) 
specifically it would provide a meaningful role for the courts 
in that process. I believe, Mr. Chairman, that the Protect 
America Act has taken significant steps in that direction, 
although it could use improvement. I commend the committee for 
continuing to carry on a sober debate such as recommended.
    Just a little bit of recap of history from my point of 
view. The presidents of both political parties since at least 
1946 had conducted significant programs of warrantless 
electronic surveillance for foreign intelligence purposes, 
including in this country.
    As you know better than I, in the late 1970s following 
revelations about what I would call ``true domestic spying'' as 
opposed to what in my view is going on today, which is foreign 
intelligence collection, the Congress and the administrations 
of two parties reached a very good, as the Director said, 
balance between those legitimate interests.
    The means they chose to effect that balance between privacy 
and civil liberties on the one hand and national security, 
perhaps were sensible and enforceable at the time, but I think 
now, because of changes in technology that have been publicly 
discussed, that balance needs to be struck in a new way. I 
think the Protect America Act starts to do that.
    But I think we need to be clear about what we're doing in 
modernizing the Foreign Intelligence Surveillance Act. My 
understanding of the original statute was that it attempted to 
strike the balance principally by requiring, as has been said 
here today, a warrant for targeted surveillance of Americans 
inside the United States and no warrant for targeted 
surveillance of foreigners overseas.
    Even in 1978, it was well understood, as it has been by all 
Congresses and presidents since, that in the course of 
targeting non-U.S. persons overseas there would be significant 
amounts of what is called in the law ``incidental collection'', 
that is, a foreigner talks to someone in the United States. 
Some of that is completely innocent, not of foreign 
intelligence value, gets minimized. Some of it is of foreign 
intelligence value and gets treated in a protective way, but 
can be shared around the community.
    If we want to maintain that same bargain if you will, that 
same balance that was struck then and has been carried out over 
the last three decades under executive orders for collection 
targeted against persons overseas, I think we need to recognize 
that there will be this significant amount of incidental 
collection.
    And when opponents of the Protect America Act talk about 
millions and billions of new collection activities against 
Americans, I can only guess that what they mean is that because 
we've removed the FISA restriction against collection inside 
the United States when targeted against foreigners overseas, 
the volume is simply going to go up by virtue of that.
    If that is the objection, that's a point that we should 
recognize and debate. But we should be straightforward about 
it, that if we intend to now have courts regulate that 
incidental collection, we are now rewriting the bargain that 
was reached in 1978 and we're doing that during war time. Now, 
there may be legitimate ways to do that, but I think we need to 
recognize that that's what we're doing.
    Now, I said the Protect America Act took significant steps 
in the right direction, and I believe that. I also believe we 
need a more proactive, earlier role for the Foreign 
Intelligence Surveillance Court in the process of approving 
procedures. I think it needs to be clear that they have access 
to more data, although I don't believe that court to be shy 
about asking for data when it needs it.
    I think we should work to eliminate ambiguous terms and 
better define the terms that are in the statute, including 
specifically the issue of ``concerning,'' as was discussed by 
the Director, and Senator Feingold, in your questions, and 
others', and also we do need to, I think, do something about 
protecting better the service providers who carry out lawful 
instructions by the government, and also to recognize that it 
is career civil servants who are carrying out these procedures, 
not politically elected officials, and we ought to make sure 
that we fully support them.
    Finally, I would just say that I believe that there's 
technology that's available today that can solve many of the 
problems we're discussing here, including minimization, 
retention, collection, and use of information. Thank you.
    Senator Feingold. Thank you so much, Mr. Cunningham.
    [The prepared statement of Mr. Cunningham appears in the 
appendix.]
    Senator Feingold. Our last witness will be Suzanne 
Spaulding. Ms. Spaulding's expertise on national security 
issues comes from 20 years of experience in Congress and the 
executive branch. She has worked on both the House and Senate 
Intelligence Committees and has served as Legislative Director 
and Senior Counsel to Senator Specter, the Ranking Member of 
the committee.
    She has served as the Executive Director of two different 
congressionally mandated commissions focused on terrorism and 
weapons of mass destruction, and has worked at the CIA. She is 
currently a principal at Bingham Consulting Group, and the 
immediate past chair of the American Bar Association's Standing 
Committee on Law and National Security.
    Senator Specter. Mr. Chairman, might I add--
    Senator Feingold. Absolutely.
    Senator Specter.--a note about her outstanding service on 
my staff and on the Commission on Weapons of Mass Destruction 
where I served as vice chairman.
    Ms. Spaulding. Thank you, sir.
    Chairman Leahy. We're lucky to have her here.
    Senator Feingold. I agree. You may proceed.

STATEMENT OF SUZANNE E. SPAULDING PRINCIPAL, BINGHAM CONSULTING 
                     GROUP WASHINGTON, D.C.

    Ms. Spaulding. Thank you very much. Thank you, Senator 
Feingold, thank you Ranking Member Specter, members of the 
committee. I very much appreciate this opportunity to testify 
on changes to the Foreign Intelligence Surveillance Act, or 
FISA.
    In the 20 years that I spent working on efforts to combat 
terrorism, starting in the early 1980's working with Senator 
Arlen Specter, I developed a strong sense of the seriousness of 
the national security challenges that we face and a deep 
respect for the men and women in our national security agencies 
who work so hard to keep us safe.
    We all agree that we owe it to those professionals to 
ensure that they have the tools they need to do their job, 
tools that reflect the ways in which advances in technology 
have changed both the nature of the threat and our capacity to 
meet it.
    They also deserve to have clear guidance on just what it is 
that we want them to do on our behalf, and how we want them to 
do it. Unfortunately, the newly enacted changes to FISA do not 
provide clear guidance and instead appear to provide 
potentially very broad authority with inadequate safeguards.
    I will highlight just a few key concerns in this brief 
statement. First, avoid changing definitions, particularly if 
something as fundamental as electronic surveillance. Because 
Section 105(a) defines out of FISA the acquisition of any 
communication when it's directed against someone reasonably 
believed to be outside the United States, it removes any 
statutory protection that FISA might otherwise afford Americans 
whose communications might fall in this category.
    This means there is no statutory minimization requirement, 
no court review of procedures, no reporting requirement. Any 
executive orders, directives, or other internal policies that 
might continue to apply can be changed unilaterally by the 
executive branch.
    Keep in mind that Section 105(b), which does require some 
minimization in reporting, is an optional process that the 
Attorney General and the DNI may use if they want to compel the 
assistance of a third party. If they can intercept the 
communication without any assistance of a third party or don't 
need to compel that assistance, they do not need to use those 
procedures in 105(b).
    Second, the words ``notwithstanding any other law'', which 
is how the new Section 105(b) begins, should always raise a red 
flag. These words mean that all the laws that regulate 
collection of intelligence inside the United States no long 
apply to activities under 105(b).
    Those activities are potentially extremely far-reaching. 
Section 105(b) appears to provide statutory authorization for 
the government to gather information on any kind of 
communication inside the United States from U.S. citizens, so 
long as it is about someone who happens to be outside the 
United States at the time.
    It would appear to include intercepting U.S. mail between 
U.S. persons and the physical search of a computer for stored 
e-mails without regard to the physical search provisions in 
FISA. None of this intelligence collection has to be related in 
any way to terrorism. It applies to ``any foreign 
intelligence'', a very broad term.
    The Protect Act does require minimization procedures under 
105(b), but only the relatively permissive procedures that 
currently apply when a FISA judge has approved an application 
against a foreign power or an agent of a foreign power. In the 
case of AG-authorized surveillance under 105(b), what should 
apply are far more stringent procedures that currently apply 
when the Attorney General unilaterally authorizes surveillance 
under existing Section 102 of FISA.
    Changes to FISA should be the narrowest possible to remove 
whatever impediment has arisen to using FISA. My phone company 
always seems to be able to determine where I am when I use my 
cell phone. They charge me a lot more when I use it overseas. 
Technology experts, FISA judges, current and former, can 
provide insights into what the government and communications 
providers can and can't do, as well as what safeguards are most 
important to prevent abuse. This provides a basis for a legal 
regime that is much more narrowly focused, with precise 
procedures and safeguards to govern surveillance that involves 
persons inside the United States
    In addition, the role of FISA judges should not be 
minimized. As Supreme Court Justice Powell wrote in the Keith 
case, ``The Fourth Amendment does not contemplate the executive 
officers of the government as neutral and disinterested 
magistrates.'' Finally, Congress should seek a stronger 
commitment from the administration that it will actually abide 
by the law.
    [The prepared statement of Ms. Spaulding appears in the 
appendix.]
    Senator Feingold. Thank you very much, Ms. Spaulding. Thank 
you all.
    We will do 5-minute rounds, which I will now begin.
    Mr. Baker and Ms. Spaulding, as we have already 
demonstrated, you both have a great deal of experience in the 
intelligence community. Why is it advantageous for intelligence 
professionals to have clarity and certainty in the laws that 
govern their activities, particularly when those activities 
affect the rights of Americans?
    Mr. Baker.
    Mr. Baker. Well, because, as the DNI explained, what they 
do on a daily basis is fast-moving, it's dynamic, it's 
difficult. You're up against a very difficult target. The 
system is populated with folks who are not lawyers. They can 
seek legal advice, but they are generally not lawyers, so you 
need to have clear rules of the road that they can turn to when 
they do have a question. First of all, that they can understand 
and that they can turn to when they have a question, and then 
understand them.
    Have them be in plain English, as Mr. Dempsey suggested. I 
mean, that's always a good idea. So the danger is that folks 
under pressure, acting quickly with limited time, will confuse 
what is set forth in the standard, will be too aggressive, or 
the other danger is, they won't be aggressive enough. They 
won't go and do what it is that they should do. So you have 
both of those things. That's why you need clarity.
    Senator Feingold. Thank you.
    Ms. Spaulding.
    Ms. Spaulding. I think that's exactly right. In fact, it 
was one of the issues that the National Commission on 
Terrorism, in 2000, looked very carefully at. It looked very 
carefully at the implementation of FISA and other authorities 
that the government had to pursue international terrorism, and 
reached the same conclusion, that there was a real national 
security cost in not having very clear guidance and clear 
guidelines, in large part because oftentimes then officials 
would not exercise the full scope of their authority, fearing 
that they would not know where that line was and they would 
step over it. But there are national security costs.
    Senator Feingold. Could you give a couple of examples of 
how that would happen?
    Ms. Spaulding. Well, I know one of the contexts in which 
this arose was in looking at the investigation authorities. It 
was a particular problem for the FBI in the counterintelligence 
and foreign intelligence context, as well as in the provisions 
for criminal investigations, where there were several attempts 
to issue clearer guidance to officers in the field because it 
was not clear to them exactly where the lines were in terms of 
what they could and couldn't do at the various stages of 
investigation. What we found was, there were many, many 
instances in which they thought the line was short of where it 
was and they were not stepping up and doing things that the law 
actually allowed them to do.
    Senator Feingold. Thank you.
    Mr. Dempsey, the Protect America Act will clearly result in 
the warrantless interceptions of the communications of 
Americans with individuals overseas. What are the Fourth 
Amendment rights of the Americans whose communications are 
intercepted under the Protect America Act, and is the Protect 
America Act unconstitutional?
    Mr. Dempsey. Well, I think it's fair to say that the 
Protect America Act is of dubious constitutionality I think in 
the national security arena, we cannot afford legislation or 
authorities that are of dubious constitutionality. We want the 
kind of certainty, we want to not have to make every case into 
a potential litigation or a potential court challenge.
    There is no doubt that an American in the United States 
talking to somebody overseas has Fourth Amendment rights. You 
have a reasonable expectation of privacy in your phone calls, 
and that is regardless of whether it is a domestic phone call 
or a domestic-to-foreign call.
    What I think the issue here is, how can we protect that 
Fourth Amendment right of the American, that privacy interest 
of the American, without going the whole route of a 
particularized, individualized, probable cause-based order when 
the intelligence agencies are targeting a non--U.S. person 
overseas? I don't think that the Protect America Act comes 
close to striking that balance.
    Senator Feingold. Thank you for that answer.
    Ms. Spaulding, what message would it send if Congress were 
to grant retroactive immunity to private entities that 
allegedly were involved in the President's warrantless 
wiretapping program?
    Ms. Spaulding. Senator, I think it would send a terrible 
message, both to the American public and to private companies 
that might be asked in the future to help their government. I 
think it would send a loud and clear message that we are not 
serious about respect for the rule of law, and I think that 
would be very damaging.
    In this area particularly there is not the kind of 
transparency even that you have in the criminal context where 
the collection of information will ultimately be challenged if 
it is to be introduced into court, for example, in this area 
where secrecy is so imperative, it is equally imperative that 
we have these safeguards in place and the telecommunication 
providers become our last line of defense against abuse by the 
government. Granting retroactive immunity, I think, would send 
the wrong signal about how corporations should react when 
they're asking to do something. It's not burdensome for them to 
ask the government to assure them that what they're being asked 
to do is lawful. That's all the law requires.
    Senator Feingold. Thank you very much.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Ms. Spaulding, you have testified about the changeability 
of the executive order. Would you favor a statutory provision 
which would require the FISA court to review the targeting on 
probable cause for issuance of a warrant against a U.S. person 
overseas?
    Ms. Spaulding. Senator, I certainly think there is value in 
putting the requirements that you want the government to follow 
in the statute. To the extent that that is currently a 
requirement in the executive order and the executive branch is 
following that and it has not presented any national security 
problems, I think it would be very wise to put it into statute.
    Senator Specter. So you would rely on the Attorney General, 
contrasted with putting it to the FISA court, to determine 
probable cause, and therefore a warrant?
    Ms. Spaulding. I'm sorry. No. Right. Your question was 
rather than simply requiring the Attorney General, should we 
impose the FISA court. Again, it seems to me that there is an 
important role for the FISA court in protecting the Fourth 
Amendment rights of U.S. citizens. Clearly, we rely upon them 
to do that inside the United States.
    Senator Specter. Is that a ``yes'' answer?
    Ms. Spaulding. I think it is a ``yes'' answer. Yes, 
Senator. The Fourth Amendment continues to protect Americans 
when they are overseas.
    Senator Specter. Would you take on a little staff 
assignment here and give us the language you'd like to see on 
minimization, and also to protect, without ambiguity, a U.S. 
person overseas for having collateral collection of private 
matters while in the United States?
    Ms. Spaulding. Yes, Senator, I certainly will.
    Senator Specter. OK.
    Ms. Spaulding. Always happy to be your staffer.
    Senator Specter. Thank you. There will be some supplemental 
assignments, Ms. Spaulding.
    [Laughter.]
    Mr. Baker, you were quoted in The Hill today as saying that 
``in no kidding situations the FISA court can act very fast, on 
a very prompt basis.'' That may undercut what Director 
McConnell has talked about, the dynamics which require 
executive action without court intervention.
    Do you see any way, based on the extensive experience 
you've had with the Federal Government, where there could be 
more FISA court involvement on targeting people overseas?
    Mr. Baker. Absolutely. I think there is a way to work the 
FISA court into the system for dealing with folks overseas, 
targets overseas, and at the same time not cripple the ability 
of the intelligence community.
    Senator Specter. How would you do it?
    Mr. Baker. Well, it's complicated. I mean, there are a 
number of ideas that have been set forth today. For example, 
one thing could be to have the Attorney General make an 
application to the FISA court that is not talking about 
individualized, specific warrants, but that would be targeting 
non-U.S. persons overseas, and have the FISA court review the 
targeting decision as a general matter, review the means of 
collection.
    Senator Specter. Let me ask you, because I have got less 
than 2 minutes left, to do a little drafting as to how you 
would suggest we get the FISA court more deeply involved.
    Mr. Baker. I am also happy to take assignments. Yes, sir.
    Senator Specter. OK. Thank you.
    Mr. Dempsey--and I'm going to ask you the same question, 
Mr. Cunningham--on the issue of having the FISA court evaluate 
the success of the targeting overseas without judicial 
intervention in advance, do you agree with my thought, Senator, 
that it's relevant to know how successful the administration 
has been, the Director of National Intelligence has been, in 
collecting valuable information without any judicial 
supervision, in evaluating the adequacy of the procedures 
employed by NSA?
    Mr. Dempsey. Well, I think what you were talking about was 
in a way a return on service, which is, we've given you this 
authority, and it may be a blanket authority to target at will, 
so to speak, with flexibility and speed, persons overseas. But 
then there should be a report back to the court on, how is it 
going? Are you primarily, in fact, collecting persons overseas? 
We know that it is probably going to be rare that they are 
talking to people in the U.S., but how often after analysis did 
you conclude--
    Senator Specter. Is that a ``yes'' or a ``no'' answer?
    Mr. Dempsey. That's a ``yes''. That is a ``yes''.
    Senator Specter. Mr. Cunningham, do you think there ought 
to be some special reporting back to the court where there's 
information gathered from people in the United States, even 
though the targeting might be outside the United States?
    Mr. Cunningham. Well, Senator, I think there are two 
aspects to that.
    Senator Specter. Take your time, because I will not ask any 
more questions. My red light is on.
    Mr. Cunningham. I think there are two aspects to the 
answer. One, is the constitutional, legal one. As you know, 
courts have almost never been involved in supervising the 
collection of foreign intelligence overseas, so as a 
constitutional matter I think there is a question as to whether 
or not we want to initiate that. However, as a policy matter, 
as a good government matter, I do think that there should be, 
as I suggested in my opening statement, a more robust role for 
the court in overseeing the process.
    But where I would disagree with you, respectfully, Senator, 
is I don't think the court can be in a position independently 
to evaluate the foreign intelligence value of the information. 
Was it helpful to conducting our foreign policy, did it stop 
attacks? What I think they could be, and should be, involved in 
is--and by the way, one way to maybe solve that problem would 
be to have the DNI submit an affidavit, much like in other FISA 
contexts, that just asserts that there is foreign intelligence 
value and then he's held accountable for the accuracy of that.
    But the things I do think the court ought to be able to 
look at in reauthorizing these procedures and the collection 
is, for example, how has the scope of the intercepts really 
worked? Are they collecting an unexpected volume of 
communications of Americans in the United States versus the 
things they're really targeting? How many errors have been 
made? What corrective procedures should there be in the 
process? I do think the court could meaningfully supervise that 
process.
    Senator Specter. Thank you very much, Mr. Baker, Mr. 
Dempsey, Mr. Cunningham, and Ms. Spaulding, for taking the time 
to prepare statements and for waiting all morning to testify. 
Thank you.
    Senator Feingold. Thank you, Senator Specter.
    Senator Whitehouse.
    Senator Whitehouse. I'd like to join Senator Specter in our 
thanks for the work that you've done. Ms. Spaulding, I thought 
your analysis was particularly thoughtful and helpful in 
tracking the actual plumbing, if you will, the legal, 
legislative language of the statute and where it overshot and 
where it missed.
    It strikes me, I know there are witnesses from different 
backgrounds and orientations here, and we've just had Democrats 
and Republicans alike ask questions, we've had the DNI here. 
What I'm a little bit surprised by is how everybody seems to 
have come into an accord about where we need to be. There 
really does seem here to be a fairly sensible path that is 
relatively well illuminated by the exchange that took place 
between the members and the DNI, and what we've heard from all 
of you here today. Does that come as a surprise?
    Mr. Cunningham. Well, Senator, just speaking for myself, 
all four of us have known each other in various capacities and 
worked together for a very long period of time, and I think 
have a lot of respect for each other. So I'm not terribly 
surprised. I would highlight one, I think, difference that I'm 
quite certain exists between folks on the panel, which the 
committee ought to think about for the future.
    That is, under the Fourth Amendment, when you're talking 
about surveillance directed at targets overseas but which may--
or will, I guess--intercept certain communications of people in 
the United States, the difference between what I would call 
programmatic review and approval by the court, where the court 
supervises the kind of things I was talking about with Senator 
Specter, versus the requirement to get individual, 
particularized warrants in advance, I think that's probably 
worth exploring because I think we may have some differences on 
that.
    Senator Whitehouse. Although I suspect fewer than you 
imagine.
    You said that there was a question about the scope of the 
Fourth Amendment when an American travels outside the 
boundaries of the United States. I agree that the decisions, at 
least that I have read, leave that an unanswered proposition.
    Is that something that we should try to pin down or is it 
best to simply operate by analogy, create protections akin to 
those that are longstanding under Title 3, and then wait for 
the judicial process to eventually come through with decisions 
that further define the rights of an American traveling abroad? 
There are obviously less than at home, but it's not clear how 
less, at least from the point of view of the judicial 
decisions. I was surprised at how vague the law is on that 
question.
    Mr. Dempsey. Well, Senator, I think that my reading of the 
current state of law is that at least an American citizen, and 
maybe a U.S. person abroad, has the protection of the Fourth 
Amendment in the sense that the reasonableness clause of the 
Fourth Amendment applies to an American abroad, but the warrant 
clause does not.
    Senator Whitehouse. But the warrant requirement doesn't.
    Mr. Dempsey. Which was the holdings of the cases so far. 
Now, that doesn't mean, as Senator Specter and others were 
going, that Congress could not give a court jurisdiction to 
issue a warrant for surveillance abroad. In fact, at one point 
the Administrative Office of the U.S. Courts considered such a 
proposal for, I think, for a Rule 41--
    Senator Whitehouse. It was actually my suggestion.
    Mr. Dempsey. That was your suggestion?
    Senator Whitehouse. That is one of my suggestions in this 
process.
    Mr. Dempsey. I thought it had been previously floated and 
it hadn't gone forward. But I think that I heard sort of 
consensus on that. The DNI said he wanted to obviously see the 
language. I think that's the right direction to go.
    Senator Whitehouse. Once we've gotten to the point of the 
court being the right direction to go, when I did surveillance 
in the law enforcement context, what we needed to prove was 
that there was probable cause to believe that the individual 
target was engaged in a specified violation of the laws of the 
United States or the State, depending on who you were doing. In 
this case, the standard is different. The Attorney General is 
required to opine that there is probable cause to believe that 
the target is an agent of a foreign power. Is that the correct 
standard, and where does it come from?
    Mr. Dempsey. Well, that's the standard in Executive Order 
12333, and that's the one that the administration is living by, 
with the Attorney General making that decision. So in essence, 
all we do--
    Senator Whitehouse. Does it have august history? Is that 
language that was crafted from other statutes and goes way 
back?
    Mr. Dempsey. Well, I think ``agent of a foreign power'' has 
origin in the Keith case. I think for now, I think it's good 
enough.
    Senator Whitehouse. Ms. Spaulding, you were nodding your 
head.
    Ms. Spaulding. I was just saying it is. It's in a footnote 
in the Keith case. Really, where the Keith opinion is noting 
what it is not covering in the case, because it was a case of 
purely domestic, no indication of any international or foreign 
connection, they said. So our decision here is not addressing 
one way or another how this would apply if we were dealing with 
foreign powers or agents of foreign powers. That's where the 
language came from.
    Senator Whitehouse. May I ask one final question, Mr. 
Chairman? I know I'm over my time.
    Senator Feingold. Yes. Go ahead.
    Senator Whitehouse. One of the things that has struck me, 
as I've been involved in this or other contexts than you all 
have been, as technology has changed, the intrusion that the 
search warrant effects into somebody's privacy has expanded. 
Back when the founding fathers dreamed this up, the sheriff 
went into your house, he rummaged around, he grabbed the 
evidence that he needed. It was taken to the courthouse, it was 
used in the trial, and it was either disposed of or returned, 
end of story.
    Then comes the Xerox machine. Now the sheriff or the police 
officer goes into the house, he grabs the relevant information 
and makes a copy of it, returns it when everything is done. And 
still in the file someplace down in the dusty basement of a 
courthouse is the stuff that was taken from your house, hard to 
find.
    Now we get to the electronic age. Now they take it and they 
scan it and it goes into a data base, and the live intrusion 
into the house that was over and concluded back when the 
founding fathers wrote this, is actually preserved 
electronically forever, not only for those officers and the 
people in the case to look at, but for anybody who can have 
access to it to look at.
    I'm interested in any thoughts that you may have. I'm 
opening a large discussion right now. But if you wouldn't mind, 
for the record, pointing me to things that you think discuss 
this issue intelligently and are things that we should consider 
as we continue to move into a more electronic age.
    I think that the people who wrote the warrant requirement 
into the U.S. Constitution would be surprised to see the 
preservation of data that now exists and the research that 
continues to be done, hyphen searches that can be done once 
that materially has been grabbed once properly, but then 
stored. And I don't mean just in the intelligence context. This 
is just as true of an FBI, an ATF, Secret Service, or other 
search as it is in the intelligence context. A quick reaction, 
and then I'm holding everybody here.
    Mr. Baker. If I could, just briefly, Senator. I think 
you've put your finger on a very important point. But what I'd 
say is, although technology presents us with certain problems 
with respect to privacy, certain issues and concerns, 
technology also presents us with certain solutions, certain 
tools that we might use to be able to do this. I mean, this is 
going to be--
    Senator Whitehouse. It's our job here to create those, to 
require the implementation of those tools, I guess.
    Mr. Baker. Tools. But I'm talking about technological tools 
that can be used to assist us in that way. What I would suggest 
or recommend is getting a briefing, perhaps, from the 
intelligence community on some of the minimization procedures 
that are in place now generally speaking and some of the 
changes that are afoot. You might find some of those 
interesting with respect to dealing with some of these issues.
    If I could just go back to the prior question just very 
briefly, I would just signal a note of caution with respect to 
changes that you might want to make with respect to activities 
vis-a-vis Americans overseas, because there you need to be very 
careful with what you're doing and how you're impacting the 
activities of our intelligence officers and employees overseas. 
The overseas environment is very different from the domestic 
environment, when you're literally on the ground and doing 
things. There is legislative history on this. Congress has 
historically been concerned about this, but shied away from 
trying to legislate in this area because it is complicated. I'd 
be happy to provide--
    Senator Whitehouse. Yes. But what is not complicated about 
it is the statute that says that it's no longer electronic 
surveillance if it is a person reasonably believed to be 
outside the United States, and there's no FISA court 
restriction on a group of people that is that broadly defined.
    As Admiral McConnell noted, that could include our troops 
serving in Iraq. I don't think moms and dads who send their 
sons over to serve in Iraq have any expectation that their son 
can have their e-mails, their telephone calls listened in to by 
the U.S. Government, willy nilly, without a warrant, without 
any protection. Ditto a family that takes a vacation down to 
Mexico, or somebody who goes across the Canadian border, or 
somebody who goes to Italy or Ireland to visit their family.
    We have a strong expectation that when an American travels, 
there is a significant panoply of rights that comes with them, 
and that has not yet been well defined. Unfortunately, the 
definition in the Protect America Act is non-existent. I mean, 
it's just, as soon as you step over the borders, you're all 
done. We don't care. You've got no rights, you've got nothing.
    So you have to look to other places to find those 
protections, like the executive order. But in this 
administration, who knows? It might be a secret executive order 
in somebody's man-sized safe that we don't even know about, you 
know.
    Senator Feingold. I'm going to move into another round 
myself, here.
    Mr. Baker, as you've already indicated, many people are 
concerned with the potential breadth of the Protect America 
Act. I appreciate that Mr. Weinstein has sent a letter to 
Congress stating that the administration would not rely on some 
of these interpretations. But setting aside his letter for now, 
is it possible to read that law to permit a warrantless 
physical search or business records search in the United 
States?
    Mr. Baker. It's possible.
    Senator Feingold. And in your experience, do government 
lawyers ever read statutes aggressively?
    Mr. Baker. Well, it depends on who you speak to. There are 
lawyers in the community that take very aggressive stances on 
particular legal questions. It is late in the day, it's on a 
Friday evening, it's 5:00, something has to happen right away. 
That goes back to my earlier point about clarity and simplicity 
in the law. You put the folks who have to make a decision in 
difficult situations, if the law can be read in a certain way, 
it becomes very hard to say no to that kind of suggestion.
    Senator Feingold. As has been noted, the language in the 
PAA that has received a lot of criticism is where it authorizes 
the warrantless acquisition of information ``concerning'' 
people outside the United States. Do you see any justification 
for using the phrase ``concerning''?
    Mr. Baker. Well, it gives you more flexibility. It's a term 
that gives more flexibility. But it implies more flexibility, 
maybe is a better way to say it. If they had used the word 
``targeting'', which I think is probably a better word than 
either ``concerning'' or ``directed at'', quite frankly, but if 
you use the word ``targeting'', targeting is a word that has 
significance. It carries weight in the intelligence community. 
Folks generally know what that means.
    Senator Feingold. So you would not recommend using the term 
``concerning''?
    Mr. Baker. ``Concerning'' is a word that I think is perhaps 
of use. As I said earlier, is as a matter of concern.
    Senator Feingold. And should be eliminated in any more 
permanent version of this law.
    Mr. Baker. I think there are better and clearer words that 
could be chosen.
    Senator Feingold. OK.
    Mr. Dempsey, your comment on that?
    Mr. Dempsey. I agree entirely. I think we have passed 
beyond--hopefully passed beyond--the language of the Protect 
America Act and are now working to come up with something that 
is clearer.
    Senator Feingold. Ms. Spaulding, on that point?
    Ms. Spaulding. Absolutely. I agree, Senator.
    Senator Feingold. All right.
    Ms. Spaulding, earlier today Director McConnell 
acknowledged that the Protect America Act would authorize the 
bulk collection of all communications originating overseas, 
including communications with Americans, if it were 
technologically possible to do that. Should we be concerned 
about that?
    Ms. Spaulding. Well, I thought it was interesting. The 
Director said two things. One, he seemed to say that it was not 
technologically feasible, but he also said that it would have 
to be within the definition of foreign intelligence or for 
foreign intelligence purposes.
    And certainly I think as a matter of resource dedication, 
that is very likely the case. However, again, as a matter of 
statutory interpretation, 105(a) does not require that it have 
anything to do with foreign intelligence or be for foreign 
intelligence purposes. It simply defines all of those 
communications out of those statutory protections. So, it 
certainly would enable or not put any restrictions on the bulk 
collection.
    I'm not sure that I have, necessarily, concerns with the 
bulk collection overseas of communications. I think where it 
really becomes important, obviously, is when you look at how 
you use that information. At what point do you dip into it? 
What kinds of searches can you conduct, when you start to 
conduct searches of all that information using U.S. person 
names, for example? What are the restrictions on your ability 
to retain that information, to disseminate that information? 
That's where I think all of the safeguards and protections that 
we've talked about today and elsewhere are very important.
    Senator Feingold. Thank you.
    Mr. Baker, as a general matter, when this committee 
undertakes an overhaul of the statute, members are likely to 
examine judicial opinions or government briefs to understand 
how courts and government lawyers have interpreted the law thus 
far. Do you think that it would be helpful to this committee, 
in its consideration of changes to FISA, to understand fully 
how the Foreign Intelligence Surveillance Court and the 
executive branch have interpreted that statute?
    Mr. Baker. As a general matter, yes, consistent with the 
national security needs of the United States.
    Senator Feingold. Well, then do you think as a matter of 
course that Congress should have access to any significant 
legal decisions made by the FISA court in any form, as well as 
associated pleadings, which as you know often contain important 
legal arguments?
    Mr. Baker. I believe the significant legal opinion 
requirement is already in law. I believe that's already in 
FISA.
    Senator Feingold. Senator Whitehouse, do you have anything 
else?
    Senator Whitehouse. That's all.
    Senator Feingold. OK.
    Well, I want to thank you all. You've been terribly 
patient. This has been an excellent hearing today. I thank you 
all. That concludes the hearing.
    [Whereupon, at 12:49 p.m. the hearing was concluded.]
    [Questions and answers and submissions for the record 
follow.]
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