[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]







                      FISA AMENDMENTS ACT OF 2008

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 31, 2012

                               __________

                           Serial No. 112-129

                               __________

         Printed for the use of the Committee on the Judiciary









      Available via the World Wide Web: http://judiciary.house.gov

                                _____

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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     JARED POLIS, Colorado

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel














                            C O N T E N T S

                              ----------                              

                              MAY 31, 2012

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........    14
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................    15

                               WITNESSES

Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20
Marc Rotenberg, President, Electronic Privacy Information Center 
  (EPIC)
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Jameel Jaffer, Director, Center for Democracy, American Civil 
  Liberties Union (ACLU)
  Oral Testimony.................................................    38
  Prepared Statement.............................................    40

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     3
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    16

 
                      FISA AMENDMENTS ACT OF 2008

                              ----------                              


                         THURSDAY, MAY 31, 2012

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Lungren, 
Marino, Gowdy, Scott, Conyers, Cohen, Johnson, Chu, Jackson 
Lee, and Polis.
    Staff Present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Sam Ramer, Counsel; Arthur Radford Baker, 
Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, 
Subcommittee Chief Counsel; and Aaron Hiller, Counsel.
    Mr. Sensenbrenner. The Subcommittee will be in order.
    Today's hearing examines the FISA Amendments Act of 2008, 
which is set to expire at the end of the year. The Foreign 
Intelligence Surveillance Act, or FISA, was enacted in 1978 to 
provide procedures for the domestic collection of foreign 
intelligence.
    In the 40 years since FISA's enactment, communication 
technologies have changed dramatically and revolutionalized the 
transmission of international communication. The shift from 
wireless satellite communications to fiber-optic wire 
communications alter the manner in which foreign communications 
are transmitted. The use of wire technology inside the United 
States to transit a phone call that takes place overseas have 
the unintended consequence of requiring the government to 
obtain an individualized FISA Court order to monitor foreign 
communications by non-U.S. persons.
    In 2008, Congress passed and the President signed the 
bipartisan FISA amendments to update our foreign intelligence 
laws. The Act permits the Attorney General and the Director of 
National Intelligence to target foreign persons reasonably 
believed to be located outside the U.S. to acquire foreign 
intelligence information. The Act requires prior Court approval 
of all government surveillance using these authorities, 
including Court approval of the government's targeting and 
minimization procedures.
    The FISA Amendments Act strengthens civil liberty 
protections for U.S. citizens by requiring the government to 
obtain an individualized Court order from the FISA Court to 
target them anywhere in the world to acquire foreign 
intelligence information.
    Foreign surveillance under the FISA Amendments Act is 
subject to extensive oversight by the Administration and 
Congress. Every 60 days, the Justice Department and the 
Director of National Intelligence conduct on-site reviews of 
surveillance conducted pursuant to the FISA Amendments Act. In 
addition, the Attorney General and the DNI conduct detailed 
assessments of compliance with Court-approved targeting and 
minimization procedures and provide these assessments to 
Congress twice a year.
    The Administration is also now required to submit to the 
Judiciary and Intelligence Committees a copy of any FISA Court 
order, opinion, or decision and the accompanying pleadings, 
briefs, and other memoranda of law relating to a significant 
construction or interpretation of any provision of FISA.
    The Obama administration supports reauthorization of the 
FISA Amendments Act for 5 years. DNI James Clapper and Attorney 
General Eric Holder have identified reauthorization of the Act 
as the top legislative priority of the intelligence community 
and are urging Congress to reauthorize the Act without 
amendment.
    Without objection, a February 8 letter from Director 
Clapper and General Holder and a March 26 letter from Director 
Clapper will be made part of the record.
    Hearing no objection, so ordered.
    [The information referred to follows:]
    
    
                               
                               __________

    Mr. Sensenbrenner. Foreign terrorists remain committed to 
the destruction of our country, and their methods of 
communication are constantly evolving. It is essential that our 
intelligence community has the necessary tools to detect and 
disrupt such attacks. We have a duty to ensure that the 
intelligence community can gather the information they need to 
protect our country and its citizens. I look forward to hearing 
more about this issue and thank all of our witnesses for 
participating in today's hearing.
    It is now my pleasure to recognize for his opening 
statement the Ranking Member of the Subcommittee, the gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. I want to thank you for 
holding this hearing on the FISA Amendments Act of 2008. That 
is the FAA of 2008.
    The Act established some parameters for the secret and, in 
my view, unconstitutional collection of intelligence 
information that had been ordered following the 9/11 attacks. 
However, some gaping holes were left in what is required to 
adequately protect the privacy of United States citizens. 
Americans have the right to feel as well as be free and secure 
in their persons belonging and activities from unwarranted 
government intrusion, and I am concerned that the FAA does not 
fully meet that standard.
    The Foreign Intelligence Surveillance Act, or FISA, was 
passed in 1978 to curb abuses that had been occurring in the 
collection and use of intelligence information, foreign and 
domestic. It was not passed for the purpose of excluding all 
foreign intelligence collection from the United States but to 
regulate and separate foreign and domestic intelligence 
collection.
    Collection of foreign intelligence requires merely that 
there is--collection of foreign intelligence requires merely 
that there is probable cause to believe that an actor is an 
agent of the foreign government and that foreign intelligence 
is a significant purpose of the collection. Now, foreign 
intelligence collection is only a significant purpose of the 
collection. We are left to wonder what is the primary purpose 
of information gathering. And with the USA Patriot Act we have 
added members of terrorist organizations and lone wolf 
terrorists to this low threshold for collecting intelligence.
    FISA has also recognized that foreign intelligence 
collection falls under the requirements of the Fourth Amendment 
when rights of U.S. persons are implicated.
    Such a low threshold for collecting intelligence--with such 
a low threshold for collecting intelligence, diligent oversight 
and reporting is required to ensure that the collection is not 
for a broader purpose than is necessary to achieve the goals. 
We should not be surveilling Americans by this low standard 
without some significant oversight. That is why we need clear 
standards that are rigorously enforced.
    The Foreign Intelligence Surveillance Court was created 
under FISA to oversee the operations of foreign intelligence 
gathering, and I suspect that the Court is doing a good job and 
may be doing a good job within its authority, but it operates 
in secrecy. I believe that the public has a right to know from 
laws and policies and reports on their implementation that the 
government is being held accountable for the Constitution and 
the laws. I do not believe that the FAA provides sufficient 
assurances to the public in either of these areas.
    We often hear the need for the government to expand its 
powers to meet the needs of technology but seldom do we hear 
the likewise need to protect privacy when technology advances. 
In 1978, there was little American communication to and from 
foreign countries compared to today's constant barrage of 
emails, phone calls, and other electronic communications. What 
was rare in 1978 is now commonplace and just as deserving of 
privacy from government spying and intrusion.
    The FAA processes result in massive amounts of information 
being collected with an untold amount of it affecting Americans 
in America. Now when we talk about government collection of 
data it is not just computers, it is government officials who 
may be your neighbors; and when you spread it around to other 
agencies you may be talking about other neighbors who are 
getting access to your private information.
    The primary requirements of the Fourth Amendment are 
probable cause warrants and particularity in conduct and place. 
It is not clear that these standards are being met when 
required under the FAA's current structure.
    Now we hear complaints that it is too burdensome for the 
government to go through the procedures required and that we 
have to give up some of our privacy for greater safety. I am 
reminded of Ben Franklin's comment that those who would give up 
essential liberty to purchase a little temporary safety deserve 
neither liberty nor safety.
    Neither the government's press for access to information to 
accomplish its authorized purposes or the ease by which it can 
get the information should lessen our constitutional 
protections. Emergency procedures are provided under the 
Constitution and under the FAA, but the exception should not 
become the rule.
    I look forward to the testimony of our witnesses on where 
the FAA properly draws the lines between the insurance the 
public is entitled to under the Constitution and the legitimate 
needs of the government to do its job.
    Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The Chair now recognizes the Ranking 
Member of the full Committee, the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Chairman Sensenbrenner.
    This is a sensitive discussion, as we all know, but the 
Fourth Amendment is critical. And I do not think that the 
Supreme Court--the courts have not finally ruled on what is 
going on. I come to this hearing disturbed by how little we 
know and how much more we need to know. I am glad that we are 
going to have closed door hearings in the near future, and I 
hope that they will be productive in terms of settling some of 
the lack of information that we have about this subject.
    So I guess it is going to be legitimate for us to ask how 
much do we need to know, how much can we talk about publicly, 
and how do we make sure that, quite frankly, FISA is not out of 
control? At this point, we do not have any way of knowing that, 
and one of the problems is the so-called minimization strategy. 
So I think we need to strengthen minimization and to make sure 
that this is a very understandable FISA operation that is 
satisfactorily constitutional, and right now we are not able to 
do that.
    So I am hoping that, in addition--and I hope the Chair will 
support or even lead in this--we need to talk to FISA 
officials. This whole idea of us holding a hearing about FISA 
and nobody from FISA is here is part of the problem. We want to 
talk to the director, publicly or privately, and I have not had 
that opportunity yet, and I hope that the Members of the 
Committee share in my desire to do that.
    And so I will put the rest of my statement into the record.
    Mr. Sensenbrenner. Without objection.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    I want to begin by thanking both Chairman Smith and Chairman 
Sensenbrenner for scheduling this hearing in such a timely manner.
    Mr. Scott, Mr. Nadler, and I wrote to Chairman Smith on May 9, 
requesting public hearings on the expiring provisions of the Foreign 
Intelligence Surveillance Act. Here we are, just a few days later, 
beginning an important discussion about civil liberties and the scope 
of secret government surveillance. I look forward to additional 
hearings on this topic, and I thank you both.
    Four years ago, when we passed the FISA Amendments Act of 2008, we 
authorized the electronic surveillance of suspected terrorists and 
foreign agents located outside the United States.
    Although the Foreign Intelligence Surveillance Court has some 
measure of oversight over these programs, the sweeping and general 
nature of this authority has given many cause for concern.
    For example, the government may describe its operations to the 
court in exceptionally general terms--as broad as ``all phone calls, 
emails, and text messages originating in Pakistan''--and conduct wide-
ranging, dragnet surveillance from there. Although the law requires the 
government to use ``minimization procedures'' that limit the impact of 
these programs on American citizens, there is no question that the 
government can and does intercept and listen in on the communications 
of U.S. persons.
    The scope of this law has also raised questions about the practice 
of ``reverse targeting,'' where the government officially targets a 
foreign person in order to listen in on the conversations of U.S. 
persons on the other end of the line. This practice is explicitly 
prohibited by law--but with so much about these programs conducted in 
secret, including basic information about the impact of these programs 
on Americans, we have no way of knowing for sure whether the government 
conducts itself lawfully.
    These concerns are more than theoretical. In 2009, the New York 
Times reported that the NSA had engaged in the ``overcollection'' of 
American communications in situations not permitted by law. The 
government assures us that this problem, although widespread, was an 
accident and has been corrected. Whether or not the practice was 
deliberate, it was illegal--and it does not inspire confidence in the 
program.
    More recently, in a letter to Senators Ron Wyden (D-OR) and Mark 
Udall (D-CO), the Office of the Director of National Intelligence 
stated that it is ``not reasonably possible'' to determine how many 
people in the United States have had their communications intercepted 
and reviewed under this law. That answer is not satisfactory, and the 
public deserves better.
    Four years ago, supporters of the bill assured us that it would 
adequately protect the privacy of American citizens and other U.S. 
persons. They continue to make those assurances. But the reason the 
FISA Amendment Act included a four-year sunset is so that Congress can 
conduct meaningful oversight--and not merely rubber stamp an executive 
branch prerogative.
    The government can and must do a better job of responding to our 
questions about privacy and other civil liberties. It can do so without 
compromising national security or specific operations. I have no doubt 
that these programs are important to the executive branch, but Congress 
must have these answers before we can act responsibly.
    I look forward to the testimony of each of the witnesses today.
                               __________

    Mr. Conyers. But I would hope that my dear friend, Bobby 
Scott, will not support Ben Franklin's motto, take it too 
seriously, because we will end up in a worse situation than we 
are now.
    I yield back the balance of my time.
    Mr. Sensenbrenner. I thank the gentleman.
    Let me say for those who have missed it, this is a rare 
chance to see bipartisanship in action. You have the 
Republicans supporting the Obama administration and the 
Democrats criticizing the Obama administration, and I hope that 
everybody in the room duly notes that.
    I would point out that since the FAA amendments of 2008 
there has been no Federal court to my knowledge that has 
declared any part of the FAA amendments unconstitutional on 
Fourth Amendment grounds. There is a case where the Supreme 
Court has granted certiorari called Clapper vs. Amnesty 
International, but that is on the question of standing rather 
than on the question of alleged Fourth Amendment violations.
    That being said, it is now my pleasure to introduce today's 
witnesses:
    Kenneth Wainstein is a partner in the law firm of 
Cadwalader, Wickersham & Taft, where his practice focuses on 
corporate internal investigations. He is also an adjunct 
professor at Georgetown Law School. Mr. Wainstein served as an 
Assistant U.S. Attorney in both the Southern District of New 
York and the District of Columbia. Later, he served as U.S. 
Attorney in D.C. And then was Assistant Attorney General for 
National Security. He has served as FBI Director Robert 
Mueller's Chief of Staff and then as President Bush's Homeland 
Security Advisor. Mr. Wainstein received his undergraduate 
degree from the University of Virginia and his law degree from 
the University of California at Berkeley.
    Marc Rotenberg is Executive Director of the Electronic 
Privacy Information Center, known as EPIC, in Washington, D.C., 
and is also an adjunct professor of law at Georgetown 
University Law Center. He has served on several national and 
international advisory panels and chairs the American Bar 
Association's Committee on Privacy and Information Protection. 
He is a founding board member and former chair of Public 
Interest Registry which manages the .org domain. He is a 
graduate of Harvard College and Stanford Law School.
    Mr. Jameel Jaffer is Deputy Legal Director at the ACLU and 
Director of the ACLU Center for Democracy. He joined the staff 
of the ACLU in 2002. Before joining the staff of the ACLU, he 
served as a law clerk to Judge Amalya L. Kersey on the Court of 
Appeals for the Second Circuit and then to Judge Beverley 
McLachlin, the Chief Justice of the Supreme Court of Canada. He 
is a graduate of Williams College, Cambridge University, and 
Harvard Law School.
    Without objection, the witnesses' statements will be 
entered into the record in their entirety, but I ask that you 
summarize your testimony in 5 minutes or less. And to help you 
stay within the time limit there are the green, yellow, and red 
lights before you, and I think you all know what they mean.
    I now recognize Mr. Wainstein.

    TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, CADWALADER, 
                     WICKERSHAM & TAFT LLP

    Mr. Wainstein. Chairman Sensenbrenner, Ranking Member 
Scott, Ranking Member Conyers, Members of the Subcommittee, I 
want to thank you for the invitation to appear before you 
today.
    Before getting into the intricacies of the FISA Amendments 
Act, it is important to remind ourselves about the national 
security threats and particularly the threat from international 
terrorism that this legislation was designed to address.
    Since the attacks of 9/11, we have been at war with al 
Qaeda and its terrorist affiliates around the globe, and we are 
making great progress against them. There are many reasons for 
that progress. But one development that has contributed 
significantly to that progress has been Congress' decision to 
modernize our national security surveillance efforts with the 
passage of the FISA Amendments Act in 2008.
    In considering the FAA's reauthorization, we also need to 
remember why it was that it was necessary to modernize the 
Foreign Intelligence Surveillance Act in the first place. As 
you know, FISA was passed in 1978 establishing the Foreign 
Intelligence Surveillance Court, or FISA Court, and requiring 
that any electronic surveillance of foreign powers or their 
agents must first be approved by that Court.
    In crafting this law, however, Congress recognized that it 
had to balance the need for a judicial review process for 
domestic surveillance against the government's need to freely 
conduct surveillance overseas. It accomplished that objective 
by clearly distinguishing between surveillances directed 
against persons located within the United States, where 
constitutional protections apply, and those directed against 
persons outside the United States, where the Fourth Amendment 
does not apply.
    In identifying those targets that would fall within the 
statute and could therefore be surveilled only after the 
government puts together a voluminous application and obtains a 
court order from the FISA Court, the FISA statute laid out a 
number of factors the FISA Court and the government should look 
at, including the type of communications technology that the 
target was using, whether he was communicating by wire--a 
cable--or by satellite transmission. The result was a carveout 
from the court approval process for surveillances that targeted 
communications that were being made from overseas locations.
    With the change in technology over the intervening years 
since 1978, however, that carveout has started to break down 
and the government found itself expending significant manpower 
generating FISA Court applications for surveillance against 
persons outside the United States. As a result, the government 
was unnecessarily expending significant resources and was 
increasingly forced to make tough choices regarding 
surveillance of worthy counterterrorism targets.
    To its enduring credit, Congress recognized that this 
situation was untenable in a post-9/11 world; and after more 
than a year of careful consideration it passed the FAA, which 
did three critical things.
    First, it authorized the FISA Court to approve surveillance 
of categories of non-U.S. person intelligence targets overseas 
without requiring the government to provide an individualized 
application as to each particular target, which brought the 
operation of FISA back in line with its original intent.
    Second, it established a multi-level system of oversight by 
the FISA Court, by Congress, and by various actors within the 
executive branch to ensure this authority would be exercised in 
full compliance with the law and the Constitution.
    And, third, it significantly added to the protections for 
U.S. persons by imposing the requirement for the very first 
time that the government seek and obtain an individualized 
order from the FISA Court whenever it seeks to conduct overseas 
intelligence collection on a U.S. person while that U.S. person 
is outside the United States.
    In sum, the FISA Amendments Act was a particularly well 
calibrated piece of legislation.
    With the FAA set to expire at the end of this year the 
Administration has strongly urged Congress to reauthorize the 
legislation. In supporting the Administration's call for 
reauthorization, I ask Congress to focus on the three 
considerations that have been the focus of my remarks here 
today: One, the vital importance of the FAA surveillance 
authority to our counterterrorism efforts; two, the extreme 
care with which Members of Congress considered, crafted, and 
limited that authority when they passed the FAA 4 years ago; 
and, three, the representations by the executive branch that 
that authority has been implemented to great effect and with 
full compliance with the law and the Constitution.
    In addition, we must also focus on one other important 
consideration, which is the severity of the terrorist threat we 
still face today. While we have certainly weakened them in many 
ways, our terrorist adversaries are still intent on inflicting 
damage and death on the United States and its people. Given 
that reality, now is not the time to rest on our 
accomplishments, to weaken our defenses, or to scale back on a 
critical intelligence authority. To the contrary, now is the 
time to redouble our efforts, to press the advantage that we 
have gained, and to reauthorize the statute that has done so 
much to protect our people and their liberties over the past 4 
years.
    Thank you for giving me the opportunity to speak about this 
important matter. I look forward to answering any questions you 
may have for me.
    [The prepared statement of Mr. Wainstein follows:]
    
    


                               __________

    Mr. Sensenbrenner. Thank you, Mr. Wainstein.
    Mr. Rotenberg.

            TESTIMONY OF MARC ROTENBERG, PRESIDENT, 
          ELECTRONIC PRIVACY INFORMATION CENTER (EPIC)

    Mr. Rotenberg. Mr. Chairman, Members of the Committee, 
thank you very much for the opportunity to testify today.
    My name is Marc Rotenberg. I am Director of the Electronic 
Privacy Information Center. We are a nonpartisan research 
organization very much concerned about the government's use of 
electronic surveillance authority.
    I am also the former chair of an ABA committee that looked 
at reform of the Foreign Intelligence Surveillance Act shortly 
after 9/11. The committee was fully aware of the threats to 
national security to our country and considered certainly the 
essential purpose of the FISA to enable the collection of 
important foreign intelligence information.
    The committee made three recommendations to also ensure the 
protection of important privacy interests and constitutional 
interests of U.S. persons: Suggesting first that Congress had a 
critical oversight role to play--and in that spirit we are 
grateful for the hearing today; secondly, that data collection 
be focused so as to protect constitutional interests; and, 
third, I think of particular interest to the Committee this 
morning is a recommendation that the public reporting 
requirements for the use of the Foreign Intelligence 
Surveillance Act be expanded so that information would be 
available to the public on the use of FISA similar to the 
information that is available for the use of Title III criminal 
wiretap warrants. And my testimony this morning really focuses 
on the need to promote this type of transparency and 
accountability in the use of FISA authority.
    Now, you may be aware that the administrative office of the 
U.S. courts publishes an annual report. It runs almost 200 
pages. It details the use of wiretap authority in the United 
States for criminal investigations. It provides a great deal of 
information about the cost, about the effectiveness, about the 
jurisdictions that are using wiretap authority, as well as the 
number of incriminating and nonincriminating communications 
that are gathered.
    Most critically, this report, which has been produced every 
year for over 30 years, provides only statistical data. It does 
not implicate any particular investigation. It does not reveal 
any details about ongoing investigations. It does, however, 
provide a basis for the public and for the Congress to evaluate 
the effectiveness and the use of electronic surveillance in 
criminal investigations.
    The ABA recommended in 2033, and EPIC very much supports 
the view, that in your consideration of the FISA Amendments Act 
there should be greater public accountability for the use of 
these wiretap authorities. There is simply too little known 
today by the American public about the circumstances under 
which FISA authorities are used. And the problem has become 
somewhat worse because one of the key changes that was made in 
the FISA Amendments Act of 2008 was to authorize the use of 
warrants for categories of targets rather than particular 
individuals, raising significant constitutional questions but 
also calling into question the very minimal reporting that 
currently takes place under the Foreign Intelligence 
Surveillance Act.
    In our testimony, we suggest that a number of the internal 
procedures that have been established which provide from the 
Attorney General and from the Director of National Intelligence 
reports to you about the use of section 7 of the Act could be 
presented in such a way that they could be made available to 
the public with simply the statistical data about the use of 
the 702, 703, and 704 authorities. We think if this information 
were made available then the public would have more confidence 
about the use of FISA authority.
    Now, Mr. Jaffer is going to speak in a moment, I know, 
about the case Clapper vs. Amnesty, which the Chairman 
mentioned a moment ago. The question that arises in that case 
is whether the American public has a well-founded fear that the 
FISA authorities might be misused, that they might be subject, 
in fact, to unlawful surveillance.
    I think we have to say at this point without better public 
reporting we simply do not know. We simply do not know the 
circumstances under which FISA authorities are used. So we 
would recommend enhanced public reporting. We have additional 
suggestions as well that we think would improve oversight and 
transparency for the FISA Court of Review. There are checks 
there in the reporting to Congress, but the reporting to the 
public at this point is simply inadequate, and we would urge 
you to consider those changes before reauthorization.
    Thank you.
    [The prepared statement of Mr. Rotenberg follows:]
    
    
    

                               __________
    Mr. Sensenbrenner. Thank you very much.
    Mr. Jaffer.

  TESTIMONY OF JAMEEL JAFFER, DIRECTOR, CENTER FOR DEMOCRACY, 
             AMERICAN CIVIL LIBERTIES UNION (ACLU)

    Mr. Jaffer. Chairman Sensenbrenner, Ranking Member Scott, 
thank you for inviting me to share the ACLU's concerns about 
the FISA Amendments Act.
    We urge you not to reauthorize the Act in its current form 
and not to reauthorize the Act in any form until the government 
discloses more about how the Act has been used. In essence, 
this Act allows the dragnet surveillance of Americans' 
international communications. Although it bars the government 
from intentionally targeting people who are overseas--inside 
the United States, it places virtually no restrictions on 
targeting people overseas, even if those targets are 
communicating with U.S. citizens and residents.
    The Act's effect is to give the government nearly 
unrestricted access to Americans' international phone calls and 
emails. It permits the government to acquire those 
communications without requiring it to specify the people or 
facilities to be monitored, without requiring it to comply with 
meaningful limitations on retention, use, and dissemination, 
and without requiring it to obtain individualized warrants or 
even to make prior administrative determinations that the 
targets of government surveillance or foreign agents are 
connected in any way to terrorism.
    The technology is more advanced now, but the Act authorizes 
what the framers would have described as general warrants. A 
single surveillance order can be used to justify the monitoring 
of millions of communications. It can authorize the acquisition 
of all phone calls to or from a country of foreign policy 
interest, Russia or Iran or Mexico, for example, including 
phone calls to and from U.S. citizens inside the United States.
    To engage in that kind of surveillance the government would 
need to target people outside the United States. But in 
targeting people outside the United States it would collect 
countless Americans' private communications.
    The Act also has dramatic implications for the freedoms of 
speech and association. The experience of other countries shows 
that these freedoms whither in an environment in which 
government surveillance is unrestrained. Thirty-five years ago, 
the Church Committee warned that unrestrained government 
surveillance threatened to undermine our democratic society and 
fundamentally alter its nature.
    It would be irresponsible to disregard that warning. You 
should not reauthorize the FISA Amendments Act without 
prohibiting the dragnet surveillance of Americans' 
communications and more narrowly restricting the circumstances 
in which those communications can be retained, used, and 
disseminated.
    And you should not reauthorize the Act in any form without 
first requiring the government to make public more information 
about its interpretation and use of the Act. The government has 
not disclosed its legal memos interpreting the Act, nor has it 
disclosed even in part any relevant opinions issued by the FISA 
Court. It has not disclosed the number of times the DNI and the 
Attorney General have invoked the Act, the number of Americans 
who have been unlawfully targeted, or the number of Americans 
whose communications have been collected in the course of 
surveillance nominally directed at people overseas.
    Now, some of that information has been made available to 
some Members of Congress and the FISA Court, but there is no 
reason why this same information, redacted to protect 
intelligence sources and methods if necessary, should not be 
made available to the public and to all Members of Congress. 
The public surely has a right to know how the government 
interprets its surveillance authorities, and it has a right to 
know at least in general terms how those authorities are being 
used.
    Further, Congress cannot responsibly reauthorize a 
surveillance statute whose implications for Americans' privacy 
the executive refuses to explain. The little that we do know 
about the executive's use of the Act is troubling. Records 
obtained by the ACLU show that the Act has been violated 
repeatedly. The New York Times reported in 2009 that the NSA 
had intercepted private email messages and phone calls of 
Americans, quote, on a scale that went beyond the broad legal 
limits established by Congress.
    We strongly urge Congress not to reauthorize the Act in any 
form without first requiring the government to disclose more 
information about how the Act has been interpreted and used.
    Thank you again for giving me this opportunity, and I look 
forward to hearing your questions.
    [The prepared statement of Mr. Jaffer follows:]
    
    
    

                               __________

    Mr. Sensenbrenner. I want to thank all of the witnesses for 
staying within the 5-minute time limit.
    The Chair will withhold his questioning and will start by 
recognizing the Chairman from California, Mr. Lungren, for 5 
minutes.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Mr. Jaffer, do you have a problem with the FISA Court's 
competence in reviewing on an annual basis the procedures that 
are used by the intelligence community to conduct these 
programs, that is, that the programs have an annual review?
    Mr. Jaffer. I do not think the question is one of 
competence. I think the question is one of the Court's 
jurisdiction and the Court's mandate. And here the question is, 
has the Court given--has the Court been given the authority to 
actually ask the government why it is engaged in this kind of 
surveillance, who its targets are, what kinds of 
communication----
    Mr. Lungren. So your question is you do not know whether 
that is the case or you believe that that is not the case?
    Mr. Jaffer. I don't think there is enough public 
information to know anything about the way the Court has acted 
or----
    Mr. Lungren. So your statement that there is a failure to 
have an auditing process of the procedures they use that then 
leads you to talk about this being a dragnet is based on lack 
of sufficient information in the public domain to make that 
judgment, is that correct?
    Mr. Jaffer. Well, there are two things. There is the 
statute itself which authorizes this kind of dragnet 
surveillance, and the Obama administration has not disagreed 
with that.
    Mr. Lungren. I do not think they call it ``dragnet'', but 
go ahead.
    Mr. Jaffer. Well, they did not use that word, but they did 
say that this statute can be used for nonindividuals----
    Mr. Lungren. What I was trying to understand is you said 
there is no auditing process. In fact, there is a requirement 
that the Court must review these programs--these specific 
programs on an annual basis in addition to the specific 
applications that are requested by the Court in particular 
cases.
    Mr. Wainstein, could you reflect on that, based on your 
prior experience?
    Mr. Wainstein. The competence of the Court, sir?
    Mr. Lungren. Yeah. And whether they do in fact ask these 
kinds of questions. I mean, I could tell you what I know from 
classified briefings and what we have seen, but your experience 
on that.
    Mr. Wainstein. Thank you for the question, sir.
    I was the Assistant Attorney General for National Security 
and so I was sort of on point with my folks in dealing with the 
FISA Court for the time I was in that position, and I can tell 
you from personal experience they are very active. They are 
Federal judges. They are used to asking questions and getting 
answers to those questions. And they take their responsibility 
very seriously--their responsibility being their oversight 
responsibility.
    So when you go in--I mean, there are routine orders that 
you apply for and get, and that is just sort of like any 
Federal judge who issues search warrants. They base their 
decision on the facts that you present to them. But they also 
have the broader purpose of making sure that the program is 
being run responsibly, and they ask the tough questions.
    And I cannot speak from personal experience about their 
oversight under the FAA, because that happened after I moved 
out of that position, but I can tell you, knowing those judges, 
that they are being very aggressive in asking the questions 
about making sure that the targeting procedures are well 
designed and they are being well applied to minimize the 
instances where there might be mistakes and people within the 
United States end up getting swept into that.
    Mr. Lungren. And, Mr. Rotenberg, it is a fact that those of 
us in Congress who serve on the Judiciary Committees and the 
Intelligence Committee have the ability to look at the 
documents and the decisions made by the Court, both in terms of 
the general review of programs and any decision made by the 
Court that has a significant legal issue. Is your problem that 
that is limited to just those Members of Congress--although I 
believe if another Member of Congress asked the Chairman of 
either Intelligence or Judiciary it would be up to the Chairman 
of either of those Committees to make that decision. But is it 
your objection that that is too limited and that those of us on 
these Committees either do not have the competence or that it 
should be expanded, that other Members have it, or that the 
public should have that information as well?
    Mr. Rotenberg. Well, I think it is the latter, Mr. Lungren. 
I mean, clearly, it is an important oversight mechanism that 
you do have access to this information, and we fully support 
that. But we also do think that the public could be provided 
with statistical reports. It is something that has been done 
routinely over the years for Title III.
    And going back, of course, to the history of the 
warrantless wiretapping program, part of the reason that the 
oversight mechanism broke down and the FISA Court itself was 
not informed about the activities the government was engaged 
in, because there were not enough routinized reports that were 
put in place.
    So we are certainly not questioning the competence of the 
Court or the oversight committees. We are saying that this 
additional safeguard that would give the public the opportunity 
to have a general picture of this very important government 
function would be helpful.
    Mr. Lungren. I appreciate that, and I understand the 
different positions here. I would just stress that this is an 
independent Court. It is made up of regularly sitting Federal 
judges. There is a review Court as well, and those of us in the 
Congress who serve on these Committees have access to any major 
decision made by the Court as well as these annual reviews done 
by the Court.
    Mr. Sensenbrenner. The time of the gentleman is expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Mr. Jaffer, you indicated that you could target emails if 
they are sent overseas. You can pick up emails anywhere. How do 
you know that an email has been sent overseas?
    Mr. Jaffer. Thank you for the question.
    So this is actually one of the questions that I think 
Congress should try to get to the bottom of. Because it really 
is a concern that the Act forecloses the government from 
targeting people who are known to be in the United States. In a 
lot of instances, you do not know. You do not know where a 
person is. You do not know where the communication is coming 
from or going to. And under this statute the government has the 
authority to pick up those kinds of communications. That is one 
of our concerns about the Act.
    Mr. Scott. You talked about nonindividualized as technology 
allows you to get a whole lot of information. Should there be a 
difference between getting information and then what you do 
with it after you get it, what sort, select and search kind of 
things?
    Mr. Jaffer. Absolutely. I think that is exactly--you have 
to divide this into two questions. There is a front-end 
question of what the government should be permitted to pick up 
in the first instance, and then there is a back-end question 
about what the government can do with what it has picked up.
    I think on the front end--and this goes to Mr. Lungren's 
questions, too--it is important to recognize that the Court's 
role here is very, very limited. This is not like a search 
warrant--a traditional search warrant process in which the 
Court is presented with evidence about a particular target, 
some justification for wiretapping that target.
    This is a system in which the FISA Court reviews broad 
programs. The only question that the FISA Court asks is whether 
the program as a whole has as its significant purpose gathering 
foreign intelligence information and whether the targets are 
overseas. But, again, targets overseas very commonly speak to 
people inside the United States, and it is those communications 
that we are worried about here.
    Mr. Scott. Well, you said ``the'' significant purpose. It 
is ``a'' significant purpose. In response to a question I asked 
the former attorney general, it is just a significant purpose 
and not the primary purpose, what could the primary purpose do. 
And we have some of these joint task forces where you may have 
an intelligence official sitting up there and others who are 
restrained by criminal warrant standards where they need real 
probable cause that a crime is being committed in evidence and 
the foreign intelligence standard which means that it is 
relevant to foreign intelligence which could be about anything.
    In response to a question, what could the primary purpose 
be if it is not foreign intelligence, you said it could be a 
criminal investigation, which means you are doing a criminal 
investigation on a much different standard. Should we change a 
significant purpose back to the primary purpose, the way it was 
before the early 2000's?
    Mr. Jaffer. I think that that would be a great thing to do.
    I think that there are a few other things that you should 
consider doing as well. One is foreclosing dragnet surveillance 
of Americans' communications, and there are a variety of ways 
to do that, and a variety of proposals have already been made.
    And then the other is--and you were alluding to this, Mr. 
Scott--strengthening the minimization requirement. So even if 
Congress decides that it is in the interest of the country to 
give the government unfettered access to Americans' 
international communications in the first instance, there is 
still the question what can the government do with those 
communications once acquired, and there are ways to strengthen 
minimization to ensure that Americans' privacy is protected.
    Mr. Scott. Thank you.
    Mr. Wainstein, you indicated the comparison between in FISA 
Courts the search warrants and how the Court has to go through 
a process. The difference between search warrants in a criminal 
case and the FISA warrant is that search warrants eventually 
become public so the public can see what is going on. What kind 
of information should be made available to the public so that 
we can have confidence that the program is being run 
appropriately?
    Mr. Wainstein. Ranking Member Scott, that is a very good 
question. And the concern about transparency and public 
knowledge of any national security program is a very serious 
concern. Because the more knowledge the public has the more 
confidence they have that an authority is being responsibly 
exercised. So that is an important concern.
    I will say that when it comes to FISA Court operations they 
are the most sensitive of the sensitive operations in our 
national security apparatus. And, recognizing that, FISA, the 
statute itself, decided appropriately to give that insight 
into--for Congress. So Congress gets reports on a regular basis 
about all the orders that are issued by the FISA Court, can ask 
questions about the program, can bring members of the executive 
branch up and quiz them about, in closed session, about 
classified information. And that is the balance. That is the 
balancing that provides the representatives of the people with 
insight into a very classified world but also does not divulge 
important secrets.
    Mr. Sensenbrenner. Okay. Thank you very much.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, sir.
    I think our discussion so far this morning brings us to 
this issue: Can and should we get more information in the 
process of reauthorizing FISA? And with the exception of the 
former attorney general of California on the Committee I think 
everybody that I have heard thinks that there is nothing wrong 
with getting a little bit more information so that we know what 
is happening. Would you say that is a fair opinion to hold at 
this point, Mr. Wainstein?
    Mr. Wainstein. I would say in theory, as a matter of 
principle, more information to the public is better, all things 
being equal. However, in this area where you are talking about 
intelligence officials coming into the FISA Court, laying out 
the most sensitive information about sources and methods----
    Mr. Conyers. Well, we did not say--I do not want to do that 
either. So I agree with you. We do not want to throw out 
sensitive information. That is why I said this is a somewhat 
tricky sensitive kind of a discussion we are having. Let us 
agree that we do not want to do that, and I would never 
rationalize doing it.
    What do you think, Mr. Rotenberg?
    Mr. Rotenberg. I think it is a very good approach, Mr. 
Conyers. If nothing else, it will give us more information to 
evaluate the effectiveness of the program. Certainly in looking 
at the annual wiretap report we get very useful information. It 
shows us strengths and weaknesses and where government 
authorities maybe need to be enhanced, and I think that would 
help here.
    Mr. Conyers. After all, we want to improve the laws. I know 
you are very generous in your compliments about the Congress 
acting on this originally. But for goodness sake, just to okay 
it again because we did it before--couldn't we improve it a 
little bit?
    What about minimization, Mr. Jaffer? Doesn't that require a 
little more carefulness?
    Mr. Jaffer. I think it does, Mr. Conyers.
    The way that minimization works right now, the government 
is required to minimize only insofar as the information 
obtained is not foreign intelligence information. But foreign 
intelligence information is defined extremely broadly. And so 
anything--any communication about, for example, foreign affairs 
is one that the government under the statute can disseminate.
    And Americans talk about foreign affairs all the time, over 
the phone, in emails. And I think it is unacceptable to say to 
Americans that when you are communicating about foreign affairs 
in an email that is something that the government can have 
access to, even if you have never done anything wrong and even 
if the person you are talking to is not believed to have done 
anything wrong.
    But, Mr. Conyers, if I could just say one more thing about 
the transparency point that you raised. There is precedent for 
the release of FISA Court opinions with redactions. The FISA 
Court released an opinion in 2002 about the significant purpose 
amendment. The FISA Court of Review released an opinion in 2003 
about that same amendment. In 2008, the FISA Court of Review 
released another opinion about the Protect America Act.
    So there is precedent for the release of legal reasoning in 
these opinions with the redaction of legitimate sources and 
methods, and I think everybody is in agreement that some 
information in these opinions is likely to be sensitive and the 
government has a legitimate interest in keeping that 
information secret. But it is a different story when what the 
government is keeping secret is legal reasoning.
    Mr. Conyers. Professor Rotenberg, let me close with this 
observation. We have been told that we cannot even tell how 
many people are being subjected to this process located in the 
United States and that we do not know and they cannot tell us. 
And I think we could get a little bit closer. There could be 
some reasonableness there to give----
    You know, it is this kind of vagueness that creates in 
those of us in the Congress suspicions that are negative rather 
than suspicions that are positive. We do not know and we cannot 
be told basic information like this.
    Mr. Sensenbrenner. The gentleman's time is expired.
    Mr. Conyers. Do you mind if he responds?
    Mr. Sensenbrenner. The witness will respond.
    Mr. Rotenberg. Well, I agree of course, Mr. Conyers.
    As I said in my statement, I think when you create 
authorities for the government you need to create a 
counterbalance of oversight. And the problem with the FISA 
Amendments Act of 2008 that actually went quite far with new 
surveillance authorities, in our view, these means of public 
oversight do not match the authorities.
    Mr. Sensenbrenner. The gentlewoman from California, Ms. 
Chu.
    Ms. Chu. Thank you, Mr. Chair.
    Mr. Jaffer, in your testimony you mentioned the New York 
Times article which revealed that the National Security Agency 
had intercepted private emails and phone calls of Americans. 
You stated that the ACLU had obtained records showing that 
agencies conducting surveillance under FAA have improperly 
collected, retained, or disseminated U.S. persons' 
communications. Could you talk more specifically on the kinds 
of information that the ACLU obtained?
    Mr. Jaffer. Sure. Thank you for the question.
    The ACLU filed Freedom of Information Act litigation a few 
years ago to find out how the statute had been implemented. And 
all of the records are now--we have made them available on our 
Web site. But the records show, among other things, that the 
government has repeatedly violated minimization and targeting 
rules, and at least some of those violations resulted in the 
collection of Americans' communications. There have also been 
violations of the targeting restriction against directing 
surveillance in Americans. So, in some cases, Americans have 
been targeted inappropriately and unlawfully.
    There was also at least one occasion in which the FISA 
Court apparently got so frustrated with the executive's 
repeated violations of the Act that the Court ordered the 
Justice Department to provide reports every 90 days to explain 
compliance issues.
    On the one hand, I think that is a sign that the FISA Court 
sometimes does have the authority to do what we want it to do. 
On the other hand, it raises real concerns about whether we can 
trust the executive branch to police these limitations; and I 
think that we have at least enough information now to warrant 
Congress asking more questions and certainly to warrant pausing 
before reauthorizing the statute in its current form.
    Ms. Chu. Do you believe that there is any legislative 
remedy to this--to address the fears that Americans have that 
they are being subjected to warrantless surveillance?
    Mr. Jaffer. Absolutely. I think that when this Act was 
first proposed by the Bush administration the main problem that 
the Bush administration identified was that they believed that 
they could not wiretap foreign-to-foreign communication--so 
communications between non-U.S. persons--without getting a 
warrant, because some of those communications were running 
through the United States.
    And nobody is making the argument that we should revert to 
a world in which the government has to get a warrant for those 
kinds of communications. What we are talking about is something 
relatively narrow here. What we are asking for is a fix that 
prevents the government from engaging in suspicionless dragnet 
surveillance of Americans' international communications, and 
there are a variety of ways in which Congress could make that 
fix.
    Ms. Chu. Mr. Rotenberg, how rigorous is the certification 
process of the Attorney General and the Director of National 
Intelligence regarding the authorization of a surveillance 
program under Title VII of FISA? Has the FISA Court ever 
rejected an application under Title VII?
    Mr. Rotenberg. Well, that is a very good question, 
Congresswoman, and I could not answer because the information 
is not made available to the public.
    There are statutory provisions as to the contents of the 
report that are made available to your Committee. But here is 
the information that is made available to the public about the 
use of the Foreign Intelligence Surveillance Act. It is a two-
page letter. It is sent at the end of April every year from the 
Attorney General to the Speaker and to the President of the 
Senate. And this is what we know about the use of FISA 
authority.
    So in recommending that more information be made available 
to the public about the use of FISA we are suggesting in part 
it would make it possible to evaluate the adequacy of the 
oversight techniques.
    They may be working, by the way. I am not suggesting that 
there is a competency or a systemic problem here. But you see 
it is a small number of people that have access to this 
information and it takes time to evaluate.
    Ms. Chu. In exigent circumstances the FAA allows the 
government to conduct electronic surveillance for 7 days 
without even making an application to the FISA Court. What is 
the standard for exigent circumstances and who gets to decide 
when that standard applies?
    Mr. Rotenberg. Well, I mean, that is also set out in the 
statute, and that is actually consistent with other provisions 
in similar surveillance authorities.
    So certainly there will be circumstances, for example, 
where the government needs to undertake a search. It believes 
that it does not have time to obtain the Court authority. It 
can go forward with the search. But it is quite important, 
actually, that the statute requires the government to come back 
later and make the application that is required; and if they 
cannot get approval for the application, then the surveillance 
activity is suspended. And, again, the requirements for that 
are set out in the statute.
    Ms. Chu. Thank you. I yield back.
    Mr. Sensenbrenner. The gentleman from Colorado, Mr. Polis.
    Mr. Polis. Thank you, Mr. Chairman.
    My question is for Mr. Jaffer. The first question, in your 
testimony you mention your concern that the Administration is 
conducting ``bulk collection'' of American communications. I 
was hoping you could explain that term and kind of the evidence 
that you have that this is occurring.
    Mr. Jaffer. Well, when the Bush administration proposed the 
statute, they explained that one purpose of the statute was to 
allow for bulk collection, meaning nonindividualized 
collection. In that kind of situation, the government does not 
go to the Court and say we want to target this specific person. 
Instead, it goes to the Court and says we want to target people 
overseas generally. Maybe we want to target everybody in this 
particular city or we want to target everybody in this 
particular country.
    Mr. Polis. So, to be clear, they could be like every email 
from Karachi or something like that, hypothetically.
    Mr. Jaffer. Or Mexico, right, absolutely.
    Mr. Polis. And do you have any evidence that this is 
occurring?
    Mr. Jaffer. Well, this is something that came up in Clapper 
vs. Amnesty, the case that we are litigating right now, 
involving this Act. And the Administration was asked this 
question--the Obama administration was asked this question by 
the Southern District and then again by the appeals court. And 
the Administration had an opportunity to say that this is not 
how the Act is being used, and it declined to take that 
opportunity.
    Mr. Polis. Now, presumably, if used for bulk collection, 
there would be enormous amounts of resulting data. Do we--or is 
there any public knowledge about how that data might even be 
gone through or what safeguards might be in place to prevent 
inappropriate use of personal data unrelated to a threat from 
that data?
    Mr. Jaffer. Well, we have the statute, and the statute does 
lay out in broad terms what safeguards have to be put in place. 
And our concern is that those safeguards are too weak.
    One of the concerns is that the definition of foreign 
intelligence information is so broad that minimization applies 
only to a subcategory of the most sensitive information. And 
the result is that Americans' communications about things like 
foreign affairs can be disseminated, analyzed, retained forever 
without really any other safeguard.
    And that is a concern not just from a privacy standpoint 
but from a First Amendment standpoint as well. Because, as I 
said in my introductory remarks, this kind of surveillance has 
a chilling effect on activity that is not just protected but is 
sort of necessary to our democracy.
    Mr. Polis. Now, many proponents also say that any issues 
that arise under it can be dealt with by Federal judges who 
actually approve the FAA applications, and I wanted to question 
you about how effective that has been. How effective has the 
role of Federal judges been in administering the FAA and are 
there any specific recommendations for improving the ability of 
judges to administer the FAA?
    Mr. Jaffer. Thank you for that question. I think that is an 
important question.
    So I guess there are two separate parts of this. One is the 
FISA Court itself. And I think, as Mr. Rotenberg has pointed 
out, part of the problem is we do not know precisely what is 
going on or even in the most general terms what is going on in 
the FISA Court. And we think it is important that some of the 
FISA Court opinions relating to the FAA be released, at least 
in redacted form.
    But then--and this goes to something that Chairman 
Sensenbrenner said right at the beginning--it is true that no 
other Federal Court has weighed in on the constitutionality of 
the FAA and no Court has found any provision of the FAA to be 
unconstitutional. But that is because the Administration, first 
the Bush administration now the Obama administration, have 
insulated the FAA from judicial review. And they have done that 
by saying to plaintiffs that the only people who can challenge 
this kind of surveillance are people who can show that their 
own communications have been monitored. And obviously nobody 
can show that their own communications have been monitored, 
because that is not information that the Administration has 
released.
    So you are in this situation where this extremely far-
reaching surveillance statute, definitely the most far-reaching 
surveillance statute ever enacted by Congress, is essentially 
beyond the reach of the courts, and that I think is a problem 
in itself.
    Mr. Polis. And I think from your description it sounds like 
one of the issues is there is insufficient standing to bring it 
to Federal Court. So one legislative improvement might be to 
define standing in such a way that you do not have to know 
something that by its very nature you do not know about 
yourself. So there might be others or some that therefore have 
standing to get it to Federal Court. Is that the issue you 
identified?
    Mr. Jaffer. I think that would be an improvement to the 
law.
    That said, we believe we have standing in the case that we 
are litigating before the Supreme Court, and the Second Circuit 
agreed with us.
    Mr. Polis. But you believe that there is still this issue 
with regard to standing; and, as you said, it is something by 
very nature people do not know about themselves would be the 
ones who would have to object.
    Thank you, and I yield back.
    Mr. Sensenbrenner. The gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. With respect to the Director of National 
Intelligence, what is the relationship between that office and 
the other--I believe it is--what--26 intelligence-gathering 
agencies within the U.S. Government? What is the relationship, 
Mr. Wainstein.
    Mr. Wainstein. Well, Congressman Johnson, the Office of the 
Director of National Intelligence was established sort of to be 
the ``quarterback of the intelligence community'' so the DNI, 
the Director of National Intelligence, sets the requirements 
for the Intelligence Community, the collection requirements, 
and provides oversight in a number of ways. And in this 
particular process the DNI plays a critical role, because, as 
you know, the Director of National Intelligence and the 
Attorney General have to jointly certify to these collections 
and certify that they are being done legally and 
constitutionally.
    Mr. Johnson. Certainly. But DNI is pretty much the 
quarterback for all of the other intelligence agencies within 
the Federal Government. How many are there, about 26 of them?
    Mr. Wainstein. Sixteen, right? I am forgetting, but I want 
to say 16.
    Mr. Johnson. Sixteen, okay. That might be good.
    But now the process is--16?
    Mr. Wainstein. I am getting nods from the audience, 16.
    Mr. Johnson. The process is that the intelligence community 
uses or the tools that are used to conduct surveillance are 
products from defense contractors and intelligence agency 
contractors; is that correct?
    Mr. Wainstein. A lot of the technology is worked on by 
contractors as well as people within the intelligence 
community, yes.
    Mr. Johnson. And I suppose there are some firewalls between 
the various intelligence agencies, but perhaps not. What do you 
think about that?
    Mr. Wainstein. Firewalls for the passage or the conveying 
of information?
    Mr. Johnson. Yes.
    Mr. Wainstein. Actually, one of the major efforts since 9/
11 has been to take down the stovepipes and the walls between 
these different agencies. And there are--obviously, for 
sensitive information there are limitations on dissemination, 
et cetera. But the focus of the DNI has been to try to make 
sure that everybody gets the information they need to do their 
job.
    Mr. Johnson. Certainly.
    Well, tell me this now. Does the intelligence community 
have the technological capacity to identify Americans based 
upon the content of their electronic communications?
    Mr. Wainstein. That is actually a very good question; and, 
obviously, I can't get into classified techniques that they use 
to identify communicants----
    Mr. Johnson. But they do have that capability, wouldn't you 
agree?
    Mr. Wainstein. My understanding is they have the capability 
to an extent.
    But keep in mind when you try to identify a communication 
like a telephone call, just in our own experience, you look 
at--you know, if you try to figure out whether the person is 
American or not you might look at the phone number, you might 
try to ask the person on the phone. I mean, you might listen to 
the content to determine whether they are talking about being 
overseas or not. There is not sort of one set of indicia that 
definitively identifies every communication being overseas.
    Mr. Johnson. I have a hard time getting a good answer for 
that question.
    Tell me, what I would assume that we do have the ability to 
identify Americans based upon the content of their electronic 
communications. I would assume that we would be able to do 
that. But I can't get anyone to admit that we do have that 
capability, not that we do it but we have the capability, and 
that causes me a lot of suspicion.
    And I tell you, with the Chamber leaks problem that came 
out a couple of years ago, where a couple of defense 
contractors were making a proposal to the U.S. Chamber of 
Commerce to use information gleaned from these processes that 
they have developed to spy on and disrupt and destroy opponents 
of the U.S. Chamber of Commerce, I am concerned about that.
    I am concerned about the recent USA Today situation where 
reporters reporting on a defense contractor engaged in 
propaganda actions. We are targeted by persons in that company, 
in that defense company. Subcontractor.
    Mr. Jaffer, how would you add to this.
    Mr. Jaffer. Mr. Johnson, I think that you are absolutely 
right to be worried about the way that these powers will be 
used. If you look at the way that similar powers were used 
before FISA was enacted, there were all kinds of abuses. There 
were Members of Congress who were wiretapped. There were 
journalists who were wiretapped. There were Supreme Court 
justices who were wiretapped. There was a Member of Congress 
whom the NSA sought to wiretap in 2006 or 2007. That is in the 
same New York Times story that we referred to earlier.
    I think that history shows us that these kinds of broad 
surveillance powers can and will be abused, and that is part of 
the reason why you need to set out limits now to make sure that 
that doesn't happen.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Cohen.
    Mr. Cohen. Thank you, sir.
    I want to follow up with the article. I must have missed 
that one. You say it revealed that they had been listening in 
on conversations of judges.
    Mr. Jaffer. That Church Committee report--yes, the Church 
Committee report goes into some detail about that. That was 
back in----
    Mr. Cohen. The '70's.
    Mr. Jaffer. That is right.
    Mr. Cohen. We don't have any knowledge of any current?
    Mr. Jaffer. No.
    Mr. Cohen. Okay. I tuned in a little late, and 40 years is 
a long time.
    Mr. Jaffer. No. The current evidence is of wiretapping a 
Member of Congress, and all I know about that is from the Eric 
Lichtblau story that several of us have already referred to.
    Mr. Cohen. And who was the Member?
    Mr. Jaffer. I don't know.
    Mr. Cohen. What was revealed about the purpose of which 
they wiretapped the individual or what they learned or was 
anything revealed?
    Mr. Jaffer. All I know is from that story. The story 
reports that a Member of Congress was traveling overseas 
somewhere in the Middle East and the NSA sought the authority 
to wiretap the conversations of that Member. I don't know if 
they actually got that authority. There are just three or four 
sentences in the New York Times story.
    Mr. Cohen. How much is available for us to know about the 
dealings of the FISA Court as far as applications denied, basis 
for denial? Is any of that available?
    Mr. Jaffer. Almost nothing is available. The only thing 
that is available is this raw number, number of applications 
filed with the FISA Court and number of applications granted or 
denied. And even that number doesn't break down between 
traditional FISA and the FISA Amendments Act.
    So you don't know how many programs of surveillance have 
been authorized. You don't know how many have been approved by 
the Court. You don't know how broad those programs have been. 
You don't know how many Americans have been wiretapped as a 
result. And you don't know what has been done with the 
communications that have been acquired. So that all sorts of, 
in our view, crucial facts are still being withheld at least 
from the public.
    And then, on top of that, there is this question of the 
legal authority.
    So this is a complicated statute, and there are legitimate 
questions about how it ought to be interpreted. We don't know 
how the Obama administration is interpreting this statute, 
because it hasn't disclosed even in redacted form the Office of 
Legal Council memos. And we don't know how the FISA Court has 
interpreted the statute, because we don't have, even in 
redacted form, the FISA Court's opinions.
    I should have said this earlier, but there was a process 
put in place a couple of years ago by the Obama administration 
to declassify other FISA Court opinions, and there was a 
recognition on the part of the Obama administration at that 
time that more of these opinions needed to be released, that 
the public had a right to know more about how that Court was 
interpreting the law.
    Two or 3 years later, the result of that process is the 
release of no FISA Court opinions. We still don't have anything 
out of that process, and it is not clear to us why nothing has 
come out of that process. It might be something that the 
Committee could consider looking into.
    Mr. Cohen. Thank you, sir.
    I yield back the remainder of my time.
    Mr. Sensenbrenner. Before recognizing the gentleman from 
South Carolina, I notice that the gentlewoman from Texas, Ms. 
Jackson Lee, was in the room and stepped out, and I will 
recognize her following the conclusion of the gentleman from 
South Carolina's questioning. But I intend to be the last 
questioner, so I would ask the Democratic staff, if she wishes 
to ask questions, to have her brought back in the room.
    The gentleman from South Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Jaffer, you made reference to the Clapper case. I don't 
have my notes in front of me. What was the breakdown of the en 
banc?
    Mr. Jaffer. It was six-six on the en banc. In total, eight 
judges agreed that our plaintiffs had standing, and six 
disagreed. But two of the judges----
    Mr. Gowdy. I thought it was six to six. It just threw me 
off when you said the Second Circuit agreed with you. I thought 
it was six to six, which some people claim ties as victories 
and some people don't. I guess if you prevailed on the three-
judge panel then you are entitled to claim victory of a six-six 
tie.
    Mr. Jaffer. It was three-zero on the panel, and the full 
Court decided not to rehear the case. There were actually eight 
judges, though, who agreed with us of the full Court. Two of 
them didn't participate in the en banc.
    Mr. Gowdy. Well, let me see if you and I can agree on 
something. Does the Fourth Amendment apply to foreign targets 
in foreign lands?
    Mr. Jaffer. I don't think that is the question presented 
by----
    Mr. Gowdy. No, no, no. That is my question. So I promise 
you it is the right question, because that is my question. Does 
it apply?
    Mr. Jaffer. I don't think it does.
    Mr. Gowdy. When you say you don't ``think'' it does----
    Mr. Jaffer. Well, in the circumstances of this statute, I 
don't think it does. We certainly haven't made the argument 
that it does.
    Mr. Gowdy. Does the Fourth Amendment--I am not talking 
about a statute. I am talking about does the Fourth Amendment 
apply to foreign nationals in foreign lands?
    Mr. Jaffer. It does not.
    Mr. Gowdy. Does the Second Amendment apply?
    Mr. Jaffer. I don't know the law, but I think no.
    Mr. Gowdy. The First? Eighth?
    Mr. Jaffer. I think it would depend on the circumstances.
    Mr. Gowdy. Women's suffrage? Does that apply?
    Mr. Jaffer. No.
    Mr. Gowdy. That is my point. They don't. So we are not 
talking about surveillance of foreign nationals in foreign 
lands, right? You don't think there is a constitutional----
    Mr. Jaffer.--American communications----
    Mr. Gowdy. That is my second point. If you will let me get 
to it. If you will let me get to it.
    Professor Rotenberg was quoted--and it would not be the 
first time somebody's been quoted incorrectly, so I am going to 
give you a chance to say if you were quoted incorrectly--that 
there was a constitutional problem with monitoring foreign 
targets, and I am trying to understand what that constitutional 
problem might be of foreign targets in foreign land. Or the 
third alternative is that you were quoted incorrectly.
    Mr. Rotenberg. Well, Congressman, I am not quite sure of 
the context, but I am sure the concern I have was the 
constitutional problem was in the targeting of a foreign target 
in a foreign land. You would also acquire the communication of 
a U.S. Person.
    Mr. Gowdy. Which leads to my next question. In a domestic 
setting, Title III, where there is an unintentional 
interceptee, does that unintentional interceptee have standing?
    Mr. Rotenberg. Probably not. I mean, there certainly 
wouldn't be a suppression motion if the person is not the 
target. However--and this goes actually to my recommendation 
before the Committee--you would have a great deal of 
information about the percentage of communications in the 
course of an investigation that were non-incriminating.
    Mr. Gowdy. How do we handle the unintentional interception 
of conversations with non-targets in the Title III arena?
    Mr. Rotenberg. Well, you do it both through minimization 
and also through the reporting of non-incriminating 
communications.
    Mr. Gowdy. But they don't have standing--if it is an 
American citizen who is intercepted unintentionally on a 
domestic wire, they don't have standing to challenge.
    Mr. Rotenberg. I take your question. It is an interesting 
point. But you see, of course, if people in the United States 
became concerned that their government was engaging in routine 
surveillance of their private communications, they may well 
take steps to try to protect themselves.
    Mr. Gowdy. I am just asking you what the law is.
    Mr. Rotenberg. I think you are asking a standing question.
    Mr. Gowdy. And the answer is, no, they don't have standing.
    Mr. Rotenberg. Well, I am not sure the answer is no.
    Mr. Gowdy. Has any court held that they have standing?
    Mr. Rotenberg. Well, I don't think a court has answered the 
question.
    I mean, the Second Circuit, to the extent that it found in 
the Clapper case that there was standing based on the 
possibility of injury and the steps that the plaintiffs had 
taken to try to protect their communications, I think in fact 
they did find they had standing.
    Mr. Gowdy. I thought in the White case they found that 
unintentional interceptees of domestic wires do not have 
standing?
    Mr. Rotenberg. I think in that case the parties did not 
engage in any activity to try to prevent that type of 
interception.
    That is the problem here. The problem is the government 
engaging in a surveillance activity with neither you nor me 
knowing if in fact we are a target.
    Mr. Gowdy. Which leads--Mr. Wainstein, you have been there 
before. We can't make legislation by episode or anecdote. Is 
the government routinely targeting American citizens in foreign 
land and what protections are in place?
    Mr. Wainstein. The answer is no. The statute says that the 
government, if it is going to target a U.S. person in a foreign 
land, based on the provision in the FAA for the first time the 
government actually has to notify the FISA Court and get an 
individualized FISA order.
    There is also a provision in the FAA that says you can't 
reverse target, which means you can't target somebody overseas 
with the real purpose of trying to get the communications from 
the person inside the United States that the person overseas is 
talking to.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The Chair, in the absence of the gentlewoman from Texas, 
Ms. Jackson Lee, will recognize himself as the last questioner.
    Mr. Wainstein, I think that we have already established 
that the Fourth Amendment does not apply to foreign targets 
overseas. You agree with that.
    Mr. Wainstein. I agree with that.
    Mr. Sensenbrenner. What is the difference between probable 
cause as it applies to Title I for FISA and the requirements 
for foreign surveillance approval in Title VII of the FAA?
    Mr. Wainstein. Well, under FISA, regular FISA, traditional 
FISA, you have to establish probable cause that the target is a 
foreign power or an agent of a foreign power; and you have to 
lay evidence of that out in an application to the FISA Court. 
The FISA Court has to find probable cause of that showing, 
which is different from the probable cause you have to show in 
Title III criminal contacts.
    Mr. Sensenbrenner. That was my next question, and you said 
it is different.
    Professor Rotenberg, I think as a goal we want to have more 
transparency in all of the laws that we have except when you 
are dealing with national security. If we have too much 
transparency, then people who wish to do our country and its 
citizens harm will end up being able to connect the dots and be 
able to get away with a terrorist strike. And this is something 
that this Committee has had to wrestle with really since FISA 
but more acutely since 9/11.
    Now, how are we able to make any sense if the law is 
amended to require the government to release the numbers of 
people who were incidentally monitored without identifying the 
individuals that you don't want identified.
    Mr. Rotenberg. Well, Mr. Chairman, as I said, I think 
statistical reporting, based on the current statute in Section 
707, in fact, you do get numbers as to how many orders were 
authorized under 702, 703. None of that information would 
jeopardize any investigation to yield any activity.
    Mr. Sensenbrenner. Okay.
    Mr. Rotenberg. I would also point out I think Mr. Jaffer's 
suggestion that the legal reasoning of the FISA Court to the 
extent that it can be released with appropriate sections 
redacted would also be very helpful to make an effort to----
    Mr. Sensenbrenner. Now, following up on my question, say we 
release the number of people who are incidentally monitored--
and you can pick a number from one to whatever--then how would 
that number mean anything to the public if we don't release the 
number of targeted individuals to compare it to?
    Mr. Rotenberg. Well, you know, obviously, you would make 
the decisions about what you think is appropriate to release. 
But my own experience, having read these reports for many, many 
years, is that it is actually quite helpful to evaluate trends 
in the use of surveillance authority.
    It was significant, for example, that in 2003 the number of 
FISA warrants for the first time exceeded the number of Title 
III warrants that were issued in the United States, and that 
was a reflection of the changing character of investigations 
within this country. I think that information would be helpful 
not only to the Committee but also to the public.
    Mr. Sensenbrenner. Okay. Next question is that say we 
release the actual number of people who were targeted. Does 
that give the other side an indication as to the extent of the 
operational strength of our national security agencies?
    Mr. Rotenberg. You know, I don't see how it would. I 
imagine someone could make the argument. But we are truly 
talking about aggregate numbers, and you could choose, for 
example, which numbers to disclose.
    The main point, I think--and maybe there is agreement on 
this point--the current numbers that are provided are simply 
inadequate. You just don't know from the information that is 
made available from the Court how this legal authority is being 
used, and I don't think that is where you would want to leave 
this as you are considering renewal of the Act.
    Mr. Sensenbrenner. My guess is that, rather than playing 
the numbers game either with the actual targets or the people 
who were incidentally surveilled, perhaps decisions of the FISA 
Court, particularly the review of the FISA Court appropriately 
redacted, would be able to give us the answer to that question, 
rather than saying there were X number of people who were 
incidentally surveilled and Y number of people, you know, who 
were actual targets. I have always been one that has favored 
disclosure.
    On the other hand, you know, I know that there is a danger 
involved in that, particularly looking at what was disclosed 
during the trial of the Twin Towers bombers that Michael 
Mukasey as a Federal judge presided over. There was information 
that was disclosed during that trial that was used by al Qaeda 
to pull off 9/11, and I don't think we want to change the law 
so that that happens ever again.
    Well, my time is up.
    I would like to thank the witnesses for appearing. This has 
been a very useful hearing.
    Let me say that Thursday of next week we will have a 
classified briefing where many of the Members of this Committee 
who have had questions can ask NDI Clapper and a yet-to-be 
determined representative of the Justice Department whatever 
they want. So that will be a classified briefing, and I would 
encourage the Members to come to it and to re-ask the questions 
that they don't think they got an adequate answer to today.
    So, without objection, the hearing is adjourned.
    [Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]

                                 
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