[Senate Hearing 113-334]
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2014

                                                        S. Hrg. 113-334

 STRENGTHENING PRIVACY RIGHTS AND NATIONAL SECURITY: OVERSIGHT OF FISA 
                         SURVEILLANCE PROGRAMS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 31, 2013

                               __________

                          Serial No. J-113-25

                               __________

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
                 Kristine Lucius, Chief Staff Director
              Kolan Davis, Republican Chief Staff Director
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    47
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3

                               WITNESSES

Witness List.....................................................    45
Cole, Hon. James M., Deputy Attorney General, U.S. Department of 
  Justice, Washington, DC [with adjunct testimony from John C. 
  Inglis, Deputy Director, National Security Agency, Washington, 
  DC; Robert S. Litt, General Counsel, Office of the Director of 
  National Intelligence, Washington, DC; and Sean M. Joyce, 
  Deputy Director, Federal Bureau of Investigation, Washington, 
  DC]............................................................     5
    prepared statement...........................................    49
Inglis, John C., Deputy Director, National Security Agency, 
  Washington, DC, prepared statement.............................    54
Carr, Hon. James G., Senior Judge, U.S. District Court for the 
  Northern District of Ohio, Toledo, Ohio........................    34
    prepared statement...........................................    60
Jaffer, Jameel, Deputy Legal Director, American Civil Liberties 
  Union Foundation, New York, New York...........................    36
    prepared statement...........................................    62
Baker, Stewart A., Partner, Steptoe & Johnson LLP, Washington, DC    37
    prepared statement...........................................    85

                               QUESTIONS

Questions submitted by Senator Leahy for James M. Cole...........   101
Questions submitted by Senator Leahy for John C. Inglis..........   102
Questions submitted by Senator Leahy for Jameel Jaffer...........   104
Questions submitted by Senator Grassley for James M. Cole........   105
Questions submitted by Senator Grassley for John C. Inglis.......   107
Questions submitted by Senator Grassley for Robert S. Litt.......   109
Questions submitted by Senator Grassley for Sean M. Joyce........   111
Questions submitted by Senator Grassley for James G. Carr........   114
Questions submitted by Senator Grassley for Jameel Jaffer........   115
Questions submitted by Senator Grassley for Stewart Baker........   118

                         QUESTIONS AND ANSWERS

Responses of James M. Cole to questions submitted by Senators 
  Leahy and Grassley [NOTE: Some responses of James M. Cole are 
  classified and therefore not printed as a part of this 
  hearing.]......................................................   121
Responses of John C. Inglis to questions submitted by Senators 
  Leahy and Grassley [NOTE: The responses of John C. Inglis are 
  classified and therefore not printed as a part of this 
  hearing.]......................................................   125
Responses of Robert S. Litt to questions submitted by Senator 
  Grassley.......................................................   126
Responses of Sean M. Joyce to questions submitted by Senator 
  Grassley.......................................................   127
Responses of James G. Carr to questions submitted by Senator 
  Grassley.......................................................   131
Responses of Jameel Jaffer to questions submitted by Senators 
  Leahy and Grassley.............................................   137
Responses of Stewart Baker to questions submitted by Senator 
  Grassley.......................................................   149

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Op Ed, ``A Better Secret Court'', New York Times, James G. Carr, 
  July 22, 2013..................................................   159
Walton, Reggie B., Presiding Judge, U.S. Foreign Intelligence 
  Surveillance Court, Washington, DC, July 29, 2013, letter......   162
Group Coalition letter, July 30, 2013............................   192
Joint transparency letter, July 16, 2013.........................   196
Zwillinger, Marc J., Founder, ZwillGen PLLC, statement...........   199
The Constitution Project, Virginia E. Sloan, President, July 30, 
  2013, letter...................................................   206
U.S. Department of Justice, February 2, 2011, letter.............   208
U.S. Department of Justice, December 14, 2009, letter............   210

 
 STRENGTHENING PRIVACY RIGHTS AND NATIONAL SECURITY: OVERSIGHT OF FISA 
                         SURVEILLANCE PROGRAMS

                              ----------                              -
----


                        WEDNESDAY, JULY 31, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9 a.m., in Room 
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 
Klobuchar, Franken, Blumenthal, Grassley, Sessions, Cornyn, 
Lee, and Flake.

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

    Chairman Leahy. Good morning. Today, the Judiciary 
Committee will scrutinize Government surveillance programs 
conducted under the Foreign Intelligence Surveillance Act, or 
FISA. In the years since September 11th, Congress has 
repeatedly expanded the scope of FISA and has given the 
Government sweeping new powers to collect information on law-
abiding Americans, and we must carefully consider now whether 
those laws may have gone too far.
    Last month, many Americans learned for the first time that 
one of these authorities--Section 215 of the USA PATRIOT Act--
has for years been secretly interpreted--secretly interpreted--
to authorize the collection of Americans' phone records on an 
unprecedented scale. Information was also leaked about Section 
702 of FISA, which authorizes the NSA to collect the 
communications of foreigners overseas.
    Now, first, let me make it very clear. I do not condone the 
way these and other highly classified programs were disclosed, 
and I am concerned about the potential damage to our 
intelligence-gathering capabilities and national security. It 
is appropriate to hold people accountable for allowing such a 
massive leak to occur. We need to examine how to prevent this 
type of breach in the future.
    In the wake of these leaks, the President said that this is 
an opportunity to have an open and thoughtful debate about 
these issues. And I welcome that statement because this is a 
debate that several of us on this Committee in both parties 
have been trying to have for years. Like so many others, I will 
get the classified briefings, but then, of course, you cannot 
talk about them. There are a lot of these things that should be 
and can be discussed. And if we are going to have the debate 
that the President called for, the executive branch has to be a 
full partner. We need straightforward answers, and I am 
concerned that we are not getting them.
    Just recently, the Director of National Intelligence 
acknowledged that he provided false testimony about the NSA 
surveillance programs during a Senate hearing in March, and his 
office had to remove a fact sheet from its website after 
concerns were raised about its accuracy. And I appreciate that 
it is difficult to talk about classified programs in public 
settings, but the American people expect and deserve honest 
answers.
    It also has been far too difficult to get a straight answer 
about the effectiveness of the Section 215 phone records 
program. Whether this program is a critical national security 
tool is a key question for Congress as we consider possible 
changes to the law. Some supporters of this program have 
repeatedly conflated the efficacy of the Section 215 bulk 
metadata collection program with that of Section 702 of FISA, 
even though they are entirely different. Now, I do not think 
that is a coincidence when we have people in Government make 
that comparison, but it needs to stop. I think the patience of 
the American people is beginning to wear thin, but what has to 
be of more concern in a democracy is the trust of the American 
people is wearing thin.
    I asked General Alexander--and I understand he cannot be 
here today because he is at a convention in Las Vegas, I guess 
for hackers. But I asked General Alexander about the 
effectiveness of the Section 215 phone records program at an 
Appropriations Committee hearing last month, and he agreed to 
provide a classified list of terrorist events that Section 215 
helped to prevent, and I have reviewed that list. Although I 
agree that it speaks to the value of the overseas content 
collection implemented under Section 702, it does not do the 
same for Section 215. The list simply does not reflect dozens 
or even several terrorist plots that Section 215 helped thwart 
or prevent--let alone 54, as some have suggested.
    These facts matter. This bulk collection program has 
massive privacy implications. The phone records of all of us in 
this room--all of us in this room--reside in an NSA database. I 
have said repeatedly that just because we have the ability to 
collect huge amounts of data does not mean that we should be 
doing so. In fact, it has been reported that the bulk 
collection of Internet metadata was shut down because it failed 
to produce meaningful intelligence. We need to take an equally 
close look at the phone records program. If this program is not 
effective, it has to end. And so far I am not convinced by what 
I have seen.
    I am sure that we will hear from witnesses today who will 
say that these programs are critical in helping to identify and 
connect the so-called dots. But there are always going to be 
dots to collect, analyze, and try to connect. The Government is 
already collecting data on millions of innocent Americans on a 
daily basis based on a secret legal interpretation of a statute 
that does not on its face appear to authorize this kind of bulk 
collection. So what is going to be next? And when is enough 
enough?
    I think Congress has to carefully consider the powerful 
surveillance tools that we grant to the Government. We have to 
ensure that there is stringent oversight, accountability, and 
transparency. This debate should not be limited to those 
surveillance programs about which information was leaked. That 
is why I have introduced a bill that addresses not only Section 
215 and Section 702, but also national security letters, roving 
wiretaps, and other authorities under the PATRIOT Act. As we 
have seen in the case of ECPA reform, the protection of 
Americans' privacy is not a partisan issue. I thank Senator Lee 
of Utah and others for their support of my FISA bill, and I 
hope other Senators will join that effort.
    So I look forward to the testimony of the Government 
witnesses. I am particularly grateful for the participation of 
Judge Carr, a current member of the judiciary and a former 
judge of the FISA Court. I hope this will give us an 
opportunity for an open debate about the law, the policy, and 
the FISA Court process that led us to this position.
    I yield first, of course, to Senator Grassley, and then we 
will call on the first panel with James Cole. We will put 
General Inglis' statement in the record. It did not arrive in 
time to be given, so his statement will be made part of the 
record and he will answer questions.
    [The prepared statement of Mr. Inglis appears as a 
submission for the record.]
    Chairman Leahy. Senator Grassley.

 OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Grassley. Mr. Chairman, I thank you for holding 
this hearing, and I think it is very important that Congress do 
its oversight work, which this hearing is part of. But it is 
even more important, the more secret a program, the more 
oversight that Congress has. And as you said, probably more 
about this program could be told to the public, and the more 
that could be told, maybe more understanding and less 
questioning on the part of the public.
    The Foreign Intelligence Surveillance Act provides the 
statutory framework for electronic surveillance in the context 
of the foreign intelligence gathering. Investigating threats to 
our national security gives rise to a tension between the 
protections of citizens' privacy rights and the Government's 
legitimate national security interests. Congress through this 
legislation has sought--and I hope successfully--to strike a 
balance in this sensitive area, but whether it is the right 
balance, of course, is one of the reasons we are having this 
hearing.
    The reports in the media have raised important questions 
regarding exactly what information about American citizens is 
being collected by the Government, whether the programs are 
being conducted as Congress intended, and whether there are 
sufficient safeguards to ensure that they cannot be abused by 
this or any future administration. In short, the reports have 
raised questions about whether the proper balance has been 
struck.
    We need to look no further than the recent IRS scandal to 
see what can happen when an unchecked executive branch 
bureaucracy with immense power targets political opponents. 
These actions trampled many citizens' most basic rights to 
fully participate in our democratic process. This kind of abuse 
cannot be permitted to occur in our national security agencies 
as well, and maybe even more importantly.
    Oversight by Congress will play an important role as we 
move forward in evaluating the wisdom and value of the 
intelligence programs. However, Congress needs accurate 
information in order to conduct oversight responsibilities that 
the Constitution demands that we do under our checks and 
balances of Government. That is why it was especially 
disturbing to see that the Director of National Intelligence 
was forced to apologize for inaccurate statements he made last 
March before the Senate Intelligence Committee. Those 
statements concerned one of the very important programs that we 
will be hearing about this very day. Nothing can excuse this 
kind of behavior from a senior administration official of any 
administration, especially on matters of such grave importance.
    We have a constitutional duty to protect Americans' 
privacy. That is a given. We also have an equal constitutional 
responsibility to ensure that the Government provides a strong 
national defense. That is a given. Intelligence gathering is, 
of course, a necessary and vital part of that defense. We have 
a duty to ensure that the men and women of our military, our 
intelligence, and our counterterrorism communities have the 
tools that they need to get the job done.
    I understand officials contend that the programs authorized 
under FISA that we will discuss today are critical tools that 
have assisted them in disrupting attacks both here and abroad. 
To the extent that possible in this unclassified setting, I 
look forward to hearing how these programs have made our Nation 
safer.
    I want to emphasize that this is an equally important part 
of the balance that we have to strike. And as we consider 
whether reform of these intelligence programs is necessary or 
desirable, we must also make sure that we do not overreact and 
repeat the mistakes of the past.
    We know that before 9/11 there was a wall erected under the 
Clinton administration between intelligence gathering and law 
enforcement. That wall contributed to our failure to be able to 
connect the dots and prevent 9/11. None of the reforms that we 
consider should effectively rebuild that wall.
    Additionally, while the intelligence and the law 
enforcement communities need to share information in a lawful 
way, any reform we consider should not confuse the differences 
between these two contacts.
    For example, no reform should be based on the misguided 
legal theory that foreign terrorists on foreign soil are 
entitled to the same constitutional rights that Americans 
expect here at home.
    Finally, increased transparency is a worthy goal in 
general, and as I suggested before, whenever we can talk about 
these programs, I think there are less questions out there in 
the minds of people, and we have probably created some public 
relations problems for us and for this program and for our 
national security community because maybe we have not made 
enough information available. I say that understanding that we 
cannot tell our enemies what tools we use.
    But if we consider any reform that may bring more 
transparency to the FISA process, we should keep in mind then 
that every piece of information we make available to the public 
will be read by a determined adversary, and that adversary has 
already demonstrated the capacity to kill thousands of 
Americans even on our own soil.
    I welcome the panel witnesses and look forward to engaging 
them as we seek to strike the difficult and sensitive balance 
between privacy and security.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Our first witness will be James Cole. He first joined the 
Department of Justice in 1979. He served for 13 years in the 
Criminal Division, later becoming the Deputy Chief of the 
Division's Public Integrity Section. He went into private 
practice, sworn in as Deputy Attorney General on January 3, 
2011. Of course, Mr. Cole is no stranger to this Committee.
    Please go ahead, sir.

   STATEMENT OF THE HONORABLE JAMES M. COLE, DEPUTY ATTORNEY 
      GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Cole. Thank you, Mr. Chairman, Mr. Ranking Member, and 
Members of the Committee, for inviting us here today to speak 
about the 215 business records program and Section 702 of FISA. 
With these programs and other intelligence activities, we are 
constantly seeking to achieve the right balance between the 
protection of national security and the protection of privacy 
and civil liberties. We believe these two programs have 
achieved the right balance.
    First of all, both programs are conducted under public 
statutes passed and later reauthorized by Congress. Neither is 
a program that has been hidden away or off the books. In fact, 
all three branches of Government play a significant role in the 
oversight of these programs. The judiciary--through the Foreign 
Intelligence Surveillance Court--plays a role in authorizing 
the programs and overseeing compliance; the executive branch 
conducts extensive internal reviews to ensure compliance; and 
Congress passes the laws, oversees our implementation of those 
laws, and determines whether or not the current laws should be 
reauthorized and in what form.
    Let me explain how this has worked in the context of the 
215 program. The 215 program involves the collection of 
metadata from telephone calls. These are telephone records 
maintained by the phone companies. They include the number the 
call was dialed from, the number the call was dialed to, the 
date and time of the call, and the length of the call. The 
records do not include the names or other personal identifying 
information, they do not include cell site or other location 
information, and they do not include the content of any phone 
calls. These are the kinds of records that under longstanding 
Supreme Court precedent are not protected by the Fourth 
Amendment.
    The short court order that you have seen published in the 
newspapers only allows the Government to acquire the phone 
records; it does not allow the Government to access or use 
them. The terms under which the Government may access or use 
the records is covered by another, more detailed court order 
that the DNI declassified and released today. That other court 
order, called the ``primary order,'' provides that the 
Government can only search the data if it has a ``reasonable, 
articulable suspicion'' that the phone number being searched is 
associated with certain terrorist organizations. The order also 
imposes numerous other restrictions on NSA to ensure that only 
properly trained analysts may access the data and that they can 
only access it when the reasonable, articulable suspicion 
predicate has been met and documented. The documentation of the 
analyst's justification is important so that it can be reviewed 
by supervisors before the search and audited afterwards to 
ensure compliance.
    In the criminal context, the Government could obtain the 
same types of records with a grand jury subpoena, without going 
to the court. But here, we go to the court every 90 days to 
seek the court's authorization to collect the records. In fact, 
since 2006, the court has authorized the program on 34 separate 
occasions by 14 different judges. As part of that renewal 
process, we inform the court whether there have been any 
compliance problems, and if there have been, the court will 
take a very hard look and make sure we have corrected those 
problems. As we have explained before, the 11 judges on the 
FISA Court are far from a rubber stamp; instead, they review 
all of our pleadings thoroughly, they question us, and they do 
not approve an order until they are satisfied that we have met 
all statutory and constitutional requirements.
    In addition to the judiciary, Congress also plays a 
significant role in this program. The classified details of 
this program have been extensively briefed to both the 
Judiciary and Intelligence Committees and their staffs on 
numerous occasions. If there are any significant issues that 
arise with the 215 program, we would report those to the two 
Committees right away. Any significant interpretations by the 
FISA Court would likewise be reported to the Committees under 
our statutory obligations, including opinions of any 
significant interpretation, along with any of the court orders 
that go with that.
    In addition, Congress plays a role in reauthorizing the 
provision under which the Government carries out this program 
and has done so since 2006. Section 215 of the PATRIOT Act has 
been renewed several times since the program was initiated--
including most recently for an additional 4 years in 2011. In 
connection with those recent renewals, the Government provided 
a classified briefing paper to the House and Senate 
Intelligence Committees to be made available to all Members of 
Congress. The briefing paper and a second updated version of it 
set out the operation of the programs in detail, explained that 
the Government and the FISA Court had interpreted the Section 
215 authorization to authorize the bulk collection of telephone 
metadata, and stated that the Government was, in fact, 
collecting such information. The DNI also declassified and 
released those two papers today.
    We also made offers to brief any member on the 215 program, 
and the availability of the paper and the opportunity for oral 
briefings were communicated through ``Dear Colleague'' letters 
issued by the Chairs of the Intelligence Committees to all 
Members of Congress. Thus, although we could not talk publicly 
about the program at the time--since it was properly 
classified--the executive branch took all reasonably available 
steps to ensure that Members of Congress were appropriately 
informed about the programs when they renewed it.
    I understand that there have been recent proposals to amend 
Section 215 authority to limit the bulk collection of telephone 
metadata. As the President has said, we welcome a public debate 
about how best to safeguard both our national security and the 
privacy of our citizens. Indeed, we will be considering in the 
coming days and weeks further steps to declassify information 
and help facilitate that debate, just as we have done this 
morning in releasing the primary order and the congressional 
briefing papers. In the meantime, however, we look forward to 
working with the Congress to determine in a careful and 
deliberate way what tools can best be structured and secured to 
secure the Nation and at the same time protect our privacy and 
civil liberties.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Cole appears as a submission 
for the record.]
    Chairman Leahy. I think we can--the debate you speak of is 
starting now. The administration did declassify a FISC order. 
Of course, it does not contain any real legal analysis or 
discussion of the 215 relevance standard, so that will be part 
of our questions. But first I want to ask Deputy Director 
Inglis a question before we even go into the legality and 
usefulness of this.
    We had a huge security breach, I think we will all agree, 
committed by Edward Snowden. And a few years ago, Bradley 
Manning downloaded hundreds of thousands of classified and 
sensitive documents and passed them on to WikiLeaks.
    Now, if two data breaches of this magnitude had occurred in 
the private sector, somebody would have been held accountable 
by now. There is a lot of material kept in the private sector, 
trade secrets and so on. If they allowed this kind of leaking 
going on, in most companies somebody would be held accountable.
    Who at the NSA has taken responsibility for allowing this 
incredibly damaging security breach to occur?
    Mr. Inglis. Well, sir, that accountability must be 
considered at at least two levels: one, at the individual 
level, we have to take a hard look to see whether individuals 
exercised their responsibilities appropriately, whether they 
exercised due diligence in the exercise of those 
responsibilities----
    Chairman Leahy. Well, obviously there was not. I mean, if a 
29-year-old school dropout could come in and take out massive, 
massive amounts of data, it is obvious there were not adequate 
controls. Has anybody been fired?
    Mr. Inglis. No, sir, not yet.
    Chairman Leahy. Has anybody been admonished?
    Mr. Inglis. Sir, those investigations are underway. When 
those investigations are complete, we will have a full 
accounting within the executive branch and to the Congress of 
individual and systemic accountability. I think that at the end 
of the day we will have to look to see whether people exercised 
the responsibilities appropriately, whether they essentially 
exercised the trust that is accorded to them.
    In our system we extend top secret SCI, special 
compartmented intelligence clearances to a range of people and 
expect that they will then exercise that trust as the American 
people intended. And we will make a full accounting of that.
    Chairman Leahy. I remember President Reagan made up a 
statement, which many of us use, about trust, but verify. Don't 
you have--I realize you have to act with a certain amount of 
trust, but don't you have people double-checking what somebody 
is doing?
    Mr. Inglis. We do, sir. And----
    Chairman Leahy. Who double-checked Mr. Snowden?
    Mr. Inglis. Well, there are checks at multiple levels. 
There are checks in terms of what an individual might be doing 
at any moment in time. There are----
    Chairman Leahy. They obviously failed.
    Mr. Inglis. In this case, I think we can say that they 
failed, but we do not yet know where.
    Chairman Leahy. You ``think'' you can say they failed. I 
mean, he is sitting over at the airport in Russia with millions 
of items.
    Mr. Inglis. I would say that with the benefit of what we 
now know, they did fail.
    Chairman Leahy. Okay.
    Mr. Inglis. But we do not yet know where precisely they 
failed, and we may find that they failed at multiple points in 
the system, either in the exercise of individual responsibility 
or in the design of the system in the first place.
    Chairman Leahy. Has anybody offered--been asked to resign 
or offered to resign because of this failure?
    Mr. Inglis. No one has offered to resign. Everyone is 
working hard to understand what happened and to put in place 
the necessary mechanisms to----
    Chairman Leahy. How soon will we know who screwed up?
    Mr. Inglis. I think that we will know over weeks and months 
precisely what happened and who should then be held 
accountable, and we will hold them accountable.
    Chairman Leahy. Are you taking any steps now to make sure 
such a screw-up does not happen again?
    Mr. Inglis. We are, sir. We have instituted a range of 
mechanisms, not simply one, to ensure that we would understand 
and immediately be able to catch someone who tried to repeat 
precisely what Mr. Snowden did. But we also have to be creative 
and thoughtful enough to understand that there are many other 
ways somebody might try to beat the system.
    Chairman Leahy. You can understand why some people would 
use that old expression, ``locking the door after the horse has 
been stolen.''
    Mr. Inglis. I can, sir.
    Chairman Leahy. Okay. Thank you. I appreciate your candor. 
And I realize General Alexander is in Las Vegas, but I will ask 
you this question: Last month, he promised to provide me with 
specific examples of terrorism cases where Section 215 phone 
records collections had been used. I was led to believe by his 
answer that there were dozens of cases where Section 215 
authority has been critical to the discovery and disruption of 
terrorist plots. I have now reviewed all the classified 
material that the NSA sent, and I am far from convinced. The 
document is classified, but what was said in open testimony is 
that Section 215 helped to thwart or prevent 54 terrorist 
plots. Not by any stretch can you get 54 terrorist plots.
    In how many cases was Section 215 bulk phone records 
collection critical to preventing a terrorist plot?
    Mr. Inglis. Sir, I might answer in open session and then 
offer to provide follow-up details in a classified session.
    I would say that the administration has disclosed that 
there were 54 plots that were disrupted over the life of these 
two programs----
    Chairman Leahy. Section 215 was critical to preventing----
    Mr. Inglis. No, sir. And of those----
    Chairman Leahy [continuing]. Fifty-four plots?
    Mr. Inglis. And of those plots, 13 of those had a homeland 
nexus. The others had essentially plots that would have come to 
fruition in Europe, Asia, other places around the world.
    Chairman Leahy. How many of those----
    Mr. Inglis. Of the 13----
    Mr. Inglis. Of the 13----
    Chairman Leahy. How many of those 13 were plots to harm 
Americans?
    Mr. Inglis. Of the 13 that would have had a homeland nexus, 
in 12 of those 215 made a contribution. The question you have 
asked, though, is more precise in the sense of is there a ``but 
for'' case to be made, that but for 215 those plots would have 
been disrupted. That is a very difficult question to answer 
insomuch as that is not necessarily how these programs work. 
That is actually not how these programs work.
    What happens is that you essentially have a range of tools 
at your disposal. One or more of these tools might tip you to a 
plot. Others of these tools might then give you an exposure as 
to what the nature of that plot is. And, finally, the exercise 
of multiple instruments of power, to include law enforcement 
power, ultimately completes the picture and allows you to 
interdict that plot.
    There is an example amongst those 13 that comes close to a 
``but for'' example, and that is the case of Basaaly Moalin.
    Chairman Leahy. I have read that. I have read the material 
on that. It would be safe to say there are not 54 ``but fors''?
    Mr. Inglis. It is safe to say that, sir.
    Chairman Leahy. That is not right----
    Mr. Inglis. This capability, the 215 collection of 
metadata, is focused on the homeland. It is focused on 
detecting plots that cross the foreign to homeland domain.
    Chairman Leahy. But it was not----
    Mr. Inglis. Given that only 13 of those plots----
    Chairman Leahy. But it was not a ``but for'' in 54 cases?
    Mr. Inglis. It was not, sir.
    Chairman Leahy. Thank you.
    Mr. Inglis. Given that only 13 of those plots had a 
homeland nexus, it, therefore, only had its principal 
opportunity to make a contribution in 13 or less. In fact, it 
made a contribution to a plot that was disrupted overseas. I 
think that shows that this actually is looking not simply at 
the homeland, but it is looking at the foreign-homeland nexus.
    Chairman Leahy. And I hope we are not mixing up 215 with 
other sections.
    Mr. Inglis. We try hard not to do that, sir. They are 
distinguished but complementary tools.
    Mr. Joyce. Mr. Chairman, if I might add some insight to the 
value of 215?
    Chairman Leahy. My time is up, but go ahead. If that is 
okay with you?
    Senator Feinstein. Can't they make statements?
    Chairman Leahy. Go ahead, Mr. Joyce. No, they are just here 
to help.
    Go ahead, Mr. Joyce.
    Mr. Joyce. I just want to add, as you mentioned before, you 
know, how many dots do we need? I think we need to frame this 
by understanding who the adversary is and what they are trying 
to do. And they are trying to harm America. They are trying to 
strike America. And what we need is we need all these tools.
    So you mentioned the value of 702 versus the value of 
business records 215. They are different. And I make the 
analogy like a baseball team. You have your most valuable 
player, but you also have the players that hit singles every 
day.
    Chairman Leahy. Mr. Joyce----
    Mr. Joyce. I just want to relate to the homeland plots. So 
in Najibullah Zazi, in the plot to bomb the New York subway 
system, business record 215 played a role. It identified 
specifically a number we did not previously know of----
    Chairman Leahy. It was a critical role?
    Mr. Joyce. What I am saying, it plays a different----
    Chairman Leahy. Wasn't it some undercover work that took 
place in there?
    Mr. Joyce. Yes, there was some undercover work. But what I 
am saying, each tool plays a different role, Mr. Chairman. I am 
not saying that it is----
    Chairman Leahy. Wasn't the FBI----
    Mr. Joyce [continuing]. The most important tool----
    Chairman Leahy. Wasn't the FBI already aware of the 
individual in contact with Zazi?
    Mr. Joyce. Yes, we were, but we were not aware of that 
specific telephone number, which NSA provided us.
    Chairman Leahy. The only reason I go down this, you know, 
if we did everything, for example, we could have more security 
if we strip-searched everybody who came into every building in 
America. We are not going to do that. We would have more 
security if we closed our borders completely to everybody. We 
are not going to do that. If we put a wiretap on everybody's 
cell phone in America, if we search everybody's home--but there 
are certain things, certain areas of our own privacy that we 
Americans expect. And at some point you have to know where the 
balance is. But I have gone into other people's time. Senator 
Grassley.
    Senator Grassley. Would you, Mr. Chairman, clarify for me 
the process? We have had the testimony now, so we----
    Chairman Leahy. Yes.
    Senator Grassley [continuing]. Ask questions of all the 
people?
    Chairman Leahy. That is right--well, we were going to have 
questions of Mr. Cole and Mr. Inglis, but Mr. Litt and Mr. 
Joyce are here to be able to add if anything is necessary.
    Senator Grassley. Sure. Okay.
    Chairman Leahy. Thank you.
    Senator Grassley. I will start out with Mr. Cole, and my 
questions are kind of to emphasize, to inform, and to even be 
repetitive, because I think the public needs a greater 
understanding of what we are up to here.
    There are two legal authorities that we are discussing 
here: one, Section 702 authority. That one I am going to lay 
aside. The other authority is Section 215. Many Americans are 
concerned about the scope there. They fear that the Government 
is spying on them and prying into their personal lives. I ask 
questions to make absolutely sure that I understand the scope 
of 215.
    The first question: What information does the Government 
collect under this program? And specifically is anyone's name, 
address, Social Security number, or location collected?
    Mr. Cole. Senator Grassley, first, to answer the second 
part, name, address, location, Social Security number is not 
collected under the 215 program at all.
    Senator Grassley. Okay.
    Mr. Cole. Never has been, never will be.
    Second, the nature of the collection is really very 
dependent on this reasonable, articulable suspicion. While a 
lot of metadata does exist in a database, it cannot be accessed 
unless you go through the procedures of documenting that there 
is reasonable, articulable suspicion that the phone number you 
want to ask about is associated with terrorists. Unless you get 
that step made, you cannot enter that database and make a query 
and access any of those data.
    Senator Grassley. Okay. Again, for emphasis, is the 
Government listening in on any American phone calls through 
this program? And let me say that I just heard within the last 
week on some news media that somebody is declaring that any 
bureaucrat someplace in some intelligence agency can pick up 
the phone and listen to the conversation.
    Mr. Cole. Nobody is listening to anybody's conversations 
through this program, and through this program nobody could. No 
information like that is being collected through this program.
    Senator Grassley. Mr. Litt, Section 215 contains a 
requirement that records collected under the program provision 
be ``relevant to an authorized investigation.'' As a legal 
matter, how can you justify the assertion that phone records of 
millions of Americans who have nothing to do with terrorism are 
relevant to an authorized investigation under Section 215?
    Mr. Litt. So I would begin by noting that a number of 
judges repeatedly over the years have found that these records 
are, in fact, relevant. The reason is that the standard of 
relevance that we are talking about here is not the kind of 
relevance that you think about in the Perry Mason sense of a 
criminal trial. It is a much broader standard of relevance, and 
in a number of circumstances in the law, such as grand jury 
subpoenas or civil discovery, it is a well-accepted concept 
that if you need to get a large group of records in order to 
find a smaller group of records that actually provides the 
information you need to move forward, the larger group of 
records can be relevant. That is particularly true in this case 
because of the kinds of controls that the Deputy Attorney 
General mentioned, the fact that the queries are limited, the 
access to the data is limited, and for that reason the FISA 
Court has repeatedly found that these records are relevant.
    Senator Grassley. Is there any legal precedent that 
supports such a broad definition of relevance to an 
investigation?
    Mr. Litt. I would actually defer that to the Deputy 
Attorney General.
    Senator Grassley. Okay.
    Mr. Cole. Well, the legal precedent comes from the history 
of all the orders that have been issued, the courts having 
looked at this under the FISA law and under the provisions of 
215 and making sure that under the provisions and the ability 
to get these records relevant to a criminal--or, rather, a 
foreign intelligence--investigation, they have gone through, 
the law that Mr. Litt has described on, as I said, I believe 34 
different occasions to do this analysis. So that legal 
precedent is there.
    Senator Grassley. Okay. Mr. Joyce, one part of the balance 
that we have to strike protecting privacy of Americans, the 
other part national security. Thankfully, until the Boston 
bombing we had prevented large-scale terrorist attacks on 
American soil. I have a few questions about how valuable the 
role of Section 215 and 702 programs have played in predicting 
our national security, two questions, and then I will have to 
stop and go to our colleagues.
    Can you describe any specific situations where Section 215 
and Section 702 authorities helped disrupt a terrorist attack 
or identify individuals planning to attack, the number of 
times? And then, second, if you did not have the authority to 
collect phone records in the way that they are now under 
Section 215, how would you have effected those investigations?
    Mr. Joyce. So your first question, Senator, as far as a 
specific example of when we have utilized both of these 
programs is one I first mentioned, the first al Qaeda-directed 
plot since 9/11 in September 2009 when Najibullah Zazi and 
others conspired to plot to bomb the New York subway system. We 
initially found out about Zazi through an NSA 702 coverage, and 
he was actually talking to an al Qaeda courier who was--he was 
asking for his help to perfect an explosives recipe. So but for 
that, we would not have known about the plot. We followed that 
up with legal process and then had FISA coverage on him and 
others as we fully investigated the plot.
    Business records 215 was also involved, as I had previously 
mentioned, where we also through legal process were submitting 
legal process for telephone numbers and other e-mail addresses, 
other selectors, but NSA also provided another number we were 
unaware of a co-conspirator, Adis Medunjanin. So that is an 
instance where a very serious plot to attack America on U.S. 
soil that we used both these programs.
    But I say, as Chairman Leahy mentioned, there is a 
difference in the utility of the programs. But what I say to 
you is that each and every program and tool is valuable. There 
were gaps prior to 9/11, and what we have collectively tried to 
do, the members of the committee, other members of the other 
oversight committees, the executive branch, and the 
intelligence community, is we have tried to close those gaps 
and close those seams. And the business record 215 is one of 
those programs that we have closed those seams.
    So I respectfully say to the Chairman that the utility of 
that specific program initially is not as valuable. I say you 
are right. But what I say is it plays a crucial role in closing 
the gaps and seams that we fought hard to gain after the 9/11 
attacks.
    As you mentioned, another instance when we used the 
business record 215 program, as Chairman Leahy mentioned, 
Basaaly Moalin. So initially the FBI opened a case in 2003 
based on a tip. We investigated that tip. We found no nexus to 
terrorism and closed the case.
    In 2007, the NSA advised us through the business record 215 
program that a number in San Diego was in contact with an Al-
Shabaab, an al Qaeda East Africa member in Somalia. We served 
legal process to identify that unidentified phone number. We 
identified Basaaly Moalin. Through further investigation we 
identified additional co-conspirators, and Moalin and three 
other individuals have been convicted and some pled guilty to 
material support to terrorism.
    So I go back to we need to remember what happened in 9/11, 
and everyone in this room remembers where they were and what 
happened----
    Chairman Leahy. Mr. Joyce, you are stating the obvious 
there. Be specific to it because we are going to have votes on 
the floor, and it is going to take us out of here. We would 
like to keep somewhat close to the time.
    Mr. Joyce. All I will say, Mr. Chairman, is, respectfully, 
you mentioned about the dots. We must have the dots to connect 
the dots.
    Chairman Leahy. Thank you. One of the advantages of this 
Committee, the members on both sides of the aisle bring a lot 
of different abilities and various areas of expertise.
    The next witness is the Chair of the Senate Intelligence 
Committee.
    Senator Feinstein. Am I a witness here?
    Chairman Leahy. The next witness? The next questioner is 
the Chair of the Senate Intelligence Committee, Senator 
Feinstein, and it is a great advantage to us to have her on 
this Committee.
    Senator Feinstein. Well, thank you very much. Thank you 
very much, Mr. Chairman.
    I would like to begin by putting a couple of letters in the 
record. These have just been declassified. The first is a 
letter to myself and Senator Chambliss on February 2, 2011, 
before this program came up before the Senate, explaining it, 
making the information available. The second is that same 
letter to the House, so we have before 2010 and 2011. I would 
also----
    Chairman Leahy. Without objection, they will be made part 
of the record.
    Senator Feinstein. Thank you.
    [The letters appear as a submission for the record.]
    Senator Feinstein. I would also like to--I just realized 
that I believe Mr. Inglis' statement makes public for the first 
time a fact, and it is an important fact. It is on page 4 of 
his letter, and what he points out I think Mr. Cole described, 
that the query, which is the search of the database, can only 
be done on reasonable, articulable suspicion and only 22 people 
have access to that, trained and vetted analysts at the NSA.
    If the numbers are run and it looks like there is a 
problem, the report is made to the FBI. And the FBI looks at 
it, and if they want to collect content, they must get a 
probable cause warrant from the Foreign Intelligence 
Surveillance Court.
    Let me quote: ``. . . in 2012, based on those fewer than 
300 selectors''--that is, queries, which actually were 288 for 
Americans--``we provided a total of 12 reports to FBI, which 
altogether `tipped' less than 500 numbers.''
    So what you are saying, if I understand it, Mr. Inglis, is 
that, maximum, there were 12 probable cause warrants. Is that 
correct?
    Mr. Inglis. I think in truth, any one of the numbers that 
were tipped could have led the FBI to develop probable cause on 
more than 12. But there were only 12 reports provided to the 
FBI across 2012, and there were less than 500 numbers in those 
reports collectively that were tipped to the FBI in 2012.
    Senator Feinstein. Let me ask Mr. Joyce this question. Can 
you tell us how many orders--how many probable cause warrants 
were issued by the FBI in 2012?
    Mr. Joyce. I cannot off the top of my head, Senator. I can 
get you those numbers, though, following the hearing.
    Senator Feinstein. Well, I think we would appreciate that. 
I think----
    Mr. Joyce. I would just add, though, you make a very good 
point. Whether it is the 702 program or the business record 
215, once that information is passed to us involving anyone in 
the United States, we must go to the FISC, the Foreign 
Intelligence Surveillance Court, and show probable cause on the 
FISC warrant basically to provide content or whatever as far as 
overhears for that specific individual.
    Senator Feinstein. Good.
    [The information referred to appears as a submission for 
the record.]
    Senator Feinstein. Now, the NSA has produced and 
declassified a chart, which I would like to make available to 
all members. It has the 54 total events. It includes Section 
702 authority and Section 215 authority, which essentially work 
together. And it shows the events disrupted based on a 
combination of these two programs: 13 in the homeland, 25 in 
Europe, 5 in Africa, and 11 in Asia.
    Now, I remember, I was on the Intelligence Committee before 
9/11, and I remember how little information we had. And the 
great criticism of the Government because of these stovepipes, 
the inability to share intelligence, the inability to collect 
intelligence, we had no program that could have possibly caught 
two people in San Diego before the event took place.
    I support this program. I think based on what I know, they 
will come after us, and I think we need to prevent an attack 
wherever we can from happening. That does not mean that we 
cannot make some changes.
    Yesterday at the Intelligence Committee, I outlined some 
changes that we might consider as part of our authorization 
bill, and let me quickly run through them: the number of 
American phone numbers submitted as queries on a regular basis 
annually from the database; the number of referrals made to the 
FBI each year based on those queries, and how many times the 
FBI obtains probable cause warrants to collect the content of a 
call, which we now know is very few times, relatively; the 
number of times that a company--this is at their request from 
the high-tech companies--that any company is required to 
provide data pursuant to FISA's business records provision.
    As you know, the companies who provide information are 
seeking to be able to speak more publicly about this, and I 
think we should. There are some changes we can make to the 
business records section. We are looking at reducing the 5-year 
retention period that NSA keeps phone records in its database 
down to 2 or 3 years. It is my understanding that the 
usefulness of it tails off as the years go on. We have to 
determine that point and then consider it.
    And requiring the NSA to send to the FISA Court for its 
review the records of each query of the database as soon as it 
is practicable so the Court can determine the propriety of the 
query under the law.
    These are things that can be done to increase transparency, 
but not to stop the program. I believe based on what I have 
seen--and I read intelligence regularly--that we would place 
this Nation in jeopardy if we eliminated these two programs.
    Thank you, Mr. Chairman.
    Mr. Litt. Mr. Chairman, may I just offer a brief response 
to that?
    Chairman Leahy. Just a moment, and then I will. Would you 
also include reporting how often NSA or anybody else goes into 
an individual's browsing history or their e-mails or social 
media activity?
    Senator Feinstein. Sure, right. And we could do that in the 
private sector, too, how often this happens.
    Chairman Leahy. I was just looking at this article in the 
Guardian today, which may or may not be accurate.
    Mr. Litt, you wanted to say something?
    Mr. Litt. Yes, thank you. I just wanted to say that I think 
that this administration is more or less in the same place that 
Senator Feinstein is. We are open to reevaluating this program 
in ways that can perhaps provide greater confidence and public 
trust that this is, in fact, a program that achieves both 
privacy protections and national security. And, in fact, the 
White House has directed the Director of National Intelligence 
to make recommendations in that area. So we will be looking 
forward to working with your Committee and this Committee to 
see whether there are changes that can be made that are 
consistent with preserving the essence of the program and yet 
provide greater public confidence.
    Chairman Leahy. Thank you. Senator Cornyn? Again, speaking 
of the diversity we have, Senator Cornyn, of course, is the 
Deputy Republican Leader, and we appreciate the amount of time 
he spends in this Committee.
    Senator Cornyn. Mr. Chairman, thank you for having this 
hearing, and thanks to each of the witnesses for your service 
to our country.
    Those of us who have been here for a little while and 
through the evolution of these programs have, I think, learned 
more than the public generally knows about how they operate, 
and I think that has helped give us confidence in what is 
occurring. But I am also sensitive to Senator Feinstein, the 
distinguished Chair of the Senate Intelligence Committee, some 
of her observations--and Mr. Litt I think reiterated that, 
too--about the importance of maintaining public confidence in 
classified programs, which is a tough thing to do.
    But I think I am also reminded of the fact that, since 
2007, we have 43 new members of the U.S. Senate, and so there 
have been some people who have come to the Senate in recent 
years who perhaps have not been able to observe through their 
regular work some of the development of these programs, and so 
I think a hearing like this and the other hearings that you 
have participated in that I have attended have been very 
important to giving everyone a foundation of information where 
they can have confidence on behalf of the people we represent.
    But I would like to ask, maybe starting with Mr. Cole and 
go down the line, to get your reaction to the criticism made of 
the operations of the Foreign Intelligence Surveillance Court 
made by former Intelligence Surveillance Court Judge James 
Robertson. And this really has to do with the nature of 
essentially ex parte proceedings before the Court. I know that 
when it comes to individualized, particularized warrants, it is 
common in our system to have essentially ex parte proceedings. 
But here, when the Foreign Intelligence Surveillance Court is 
authorizing a program, according to Judge Robertson, under this 
expanded jurisdiction, it has turned the Court into something 
of an administrative agency. And, of course, talking again 
about public confidence in the oversight of the Court, which I 
think is an important part of maintaining that confidence, 
whether you think there might be some advantage, as Senator 
Blumenthal and I have discussed informally, having more of an 
adversarial process. My experience and I trust your experience 
with the adversarial process in our courts is it usually 
produces more information that allows the judge to make a 
better decision. And I would just like to get your reaction, 
Mr. Cole, and perhaps go down the line.
    Mr. Cole. Thank you, Senator. First of all, I can tell you 
from the practice we have before the FISA Court that it is far 
more than just another administrative agency. They push back 
hard, and they make sure that they are the guardians of the law 
and the Constitution.
    The topic of having an adversary--that is one that we are 
in the process of discussing and I know is being discussed in 
the Senate and in the House, and it is one of those areas that 
I think is part of the debate that we should be having on how 
best to do this. There are obviously issues we will have to 
work through as to clearances and classifications and who would 
be there and what their role would be and things of that nature 
if there is going to be a practical way to do it. But those are 
the kinds of discussions I think we do need to have.
    As you pointed out, it is not the usual course, and in the 
criminal law context we have many search warrants, Title III 
surveillance warrants that come in, that are not done in an 
adversary way. But this is certainly part of what we would like 
to be talking about and see if this has some utility.
    Senator Cornyn. Thank you.
    Mr. Inglis, do you have anything to add?
    Mr. Inglis. My background is largely operational, not in 
the training of the law, but that said, I am more than mindful 
of the absolute obligation to ensure that these things are done 
fully consistent with the Constitution. We welcome any and all 
hard questions. Whether that comes from an adversarial process 
or the process we enjoy, we think that we should be held 
accountable to answer those questions and ensure that the 
authorities that we are granted supports the whole of the 
Constitution, not just the defense of national security but the 
defense of civil liberties.
    Senator Cornyn. Thank you.
    Mr. Litt.
    Mr. Litt. The only point that I would like to make from the 
perspective of the intelligence community is to note that we 
already--this is an unusual process to have the Court involved 
in an essentially executive branch activity, conduct of foreign 
intelligence. I do not know of any other nation in the world 
that has the degree of judicial supervision of intelligence 
activities that this country has already. And I think that to 
some extent people have a--make a mistaken analogy when they 
hear the term ``court'' and they think of this as an adversary 
proceeding, like a criminal trial or a civil trial. The 
question is: What is the best way to ensure that our 
intelligence programs are conducted in compliance with the law 
and with adequate protection for people's privacy and civil 
liberties? And if it would help to have some sort of adversary 
process built into that, I think that would be entirely 
appropriate. But we should not be trying to make this mimic a 
criminal trial because it is a very different process.
    Senator Cornyn. Mr. Joyce, do you have anything to add?
    Mr. Joyce. No. My background is operational, so I would 
defer to my lead attorney, the Deputy Attorney General.
    Senator Cornyn. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    I hope, Mr. Litt, you are not saying that we have something 
that is very unusual, that we have something that can collect 
data on U.S. citizens, that you are not saying the Court should 
not be involved.
    Mr. Litt. No, no. I am not saying that.
    Chairman Leahy. I just want to make sure.
    Mr. Litt. I am not saying that at all.
    Chairman Leahy. Thank you.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you to our witnesses. As a former prosecutor, I have long 
believed that our laws must strike the right balance between 
protecting our civil liberties and protecting our national 
security.
    I think most Americans, I will say, did not expect the 
sweeping nature of the surveillance programs, and for that 
reason I think this opportunity to reexamine these programs to 
see if there are ways we can ensure that they are more 
transparent and accountable without sacrificing the benefits 
they provide to national security is very important. And I just 
got this order, the Court order, Mr. Cole, that was just hot 
off the presses here. And could you--you said in your earlier 
testimony, you talked about the metadata, which I assume is 
just the collected data we have been hearing about on domestic 
phone calls, which is not the phone conversation itself. And 
then you go down to a Category 2, which must be when you are 
investigating parts of that metadata, which is based on this 
order; and then Category 3--this is how I am thinking of it in 
terms of circles--would be when you would actually get a court 
order to start investigating a person. Is that a fair way to 
look at this?
    Mr. Cole. I think that is a very good way of looking at 
it--and the word you used I think is important here, the 
surveillance that is being done-- because the only thing we are 
actually involved in surveiling are these much smaller groups 
that we have reasonable, articulable suspicion for. We are not 
surveiling everything that is in the database. You have to go 
through some very specific requirements that are contained in 
that order before you can surveil.
    Senator Klobuchar. In this order--and you said it would 
be--there has to be a reasonable suspicion that it is a 
terrorist. That is what you said earlier?
    Mr. Cole. Reasonable suspicion that is relevant to an 
investigation of certain terrorist organizations.
    Senator Klobuchar. Okay. And so is there a percentage of 
that data that, you know, you look at when you get to the big 
metadata, then you go down to the next category, what 
percentage of the metadata is the next category that is based 
on this order?
    Mr. Cole. I think it is hard to really quantify. I have 
heard numbers anywhere from 0.0001 percent of that metadata. It 
is a very, very tiny fraction of the metadata that actually is 
accessed and----
    Senator Klobuchar. And then when you go down to the part 
there where you are actually investigating someone or you get a 
special court order to look into it, what percentage is that?
    Mr. Cole. That is then even smaller, because we then have 
to have probable cause to believe that those people are falling 
within the requirements of the Foreign Intelligence 
Surveillance Act.
    Senator Klobuchar. Okay. So given how small this is, is 
there no way of limiting the breadth of the data and 
information collected under the program that would not have 
adverse effects on our ability to effectively monitor national 
security threats?
    Mr. Cole. Well, this is what we are looking at right now 
and trying to work through. As Chairman Feinstein had noted, 
she has made some recommendations. We are in the process of 
looking through that process to see if there are other ways to 
go about doing this where we still preserve the effectiveness 
of the operation and try to limit whatever kind of privacy and 
civil liberties intrusions that come from that.
    Senator Klobuchar. Very good. And I know one idea that 
General Alexander suggested is that he is open to the idea of 
telecommunications companies holding the records rather than 
having the NSA collect them, although we know we still have 
that issue of telephone immunity anyway, as long as the 
Government could get access.
    Mr. Inglis, do you want to testify about that and answer 
that? Do you think that is a viable alternative? It seems to me 
that we may have to do more than that.
    Mr. Inglis. So I think there are multiple implementations 
that could work. I think that we need to score all of those 
implementations against a set of criteria, which would include 
at the top that they do provide protections for privacy and 
civil liberties, but they also need to have sufficient breadth 
to your question, that if you ask a question of this database, 
let us say you have the situation we had with Basaaly Moalin, 
we have a number from East Africa al Qaeda that we have 
reasonable suspicion is associated with a plot against the 
homeland, you want to check to see whether there is, in fact, a 
connection into the homeland. You need sufficient breadth in 
the database that you are about to query to have confidence 
that if you come away with no response, that you can take that 
as confidence there is not a plot; or that if you get a 
response, you have found it, whether it is in any particular 
location in the world. So the breadth is important.
    But I think that we can take a look at whether this is 
stored at the provider so long as you have some confidence you 
can do this in a timely way. We need to sometimes disrupt an 
operation that is in play, that is in progress, and so seconds, 
hours matter.
    There might be other situations where you have the time to 
perhaps take more time, but we will have to think our way 
through whether the providers can meet that standard. I think 
there are technical architectures where they can.
    Finally, to the question that Senator Feinstein has asked, 
a very thoughtful question, do we need to hold these records 
for 5 years? Our experience has shown that intelligence, writ 
large, tends to have a significant tail-off at 5 years, but 
there is a knee in the curve that might live at 2 years or 3 
years. We need to base it upon data with a rearward look, take 
a hard look at that and determine how long these things really 
are necessary and beyond that how long they are valuable.
    Senator Klobuchar. And one quick question at the end here, 
Mr. Cole. Now that this Court order has been declassified, is 
there effort underway to declassify some of the legal rationale 
behind it?
    Mr. Cole. We are still working on trying to declassify a 
number of things in this area. We are trying to get as much as 
we can out, obviously balancing the national security concerns 
with those released. But our goal is to try and get out as much 
information as we can to provide transparency on this.
    Senator Klobuchar. Thank you very much.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. Thank you all very, very much. Let me ask 
this, Mr. Litt. With regard to Mr. Joyce's comments about a 
certain case that they were able to interdict and stop, dealing 
with the subway matter, he said that the collection of data 
under this program played a role in the successful culmination 
of that case.
    Just fundamentally, you were Deputy Attorney General under 
Janet Reno for 6 years in the Department of Justice. You were a 
member of the ABA's Criminal Justice Committee. You have 
studied these issues and are required to make sure that laws 
are followed. But is this what was done in that case? Does it 
violate the Constitution in any way as defined by U.S. case law 
and the words of the Constitution itself?
    Mr. Litt. So, first, I thank you for the promotion, but I 
never actually served as Deputy Attorney General. I had a 
couple of positions in the Department, but----
    Senator Sessions. You were Deputy Assistant----
    Mr. Litt. Deputy Assistant Attorney General.
    Senator Sessions. We have to get all these Assistant 
Deputies and Deputy Assistants straight. Excuse me.
    Chairman Leahy. I think we can all agree he is highly 
qualified.
    Senator Sessions. Well, you are experienced in these 
matters, and I just want to raise a certain point, if you will 
give me a brief answer on that.
    Mr. Litt. I think the answer is quite clear under the 
controlling case law that a collection of this kind of 
telephone metadata from the telephone companies is not a 
violation of anyone's constitutional rights.
    Senator Sessions. And when I was a federal prosecutor--and, 
Mr. Cole, you were a prosecutor--virtually every complex case 
resulted in a subpoena to phone companies to get people's phone 
records. Is that correct?
    Mr. Cole. I would say the vast majority involved getting 
phone records in a case.
    Senator Sessions. And when you do that, you obtain their 
name, a lot of details about the call, but not the contents of 
the case.
    Mr. Cole. That is right. Many times you can get subscriber 
information--who owns the phone, what their billing address is, 
things of that nature--which we do not get under this program.
    Senator Sessions. So this haystack of information that you 
have is only numbers. It does not even have the name of the 
person connected to that number, the subscriber of that number. 
Is that correct?
    Mr. Cole. That is correct. If we find a chain that we think 
is important, we then have to do another investigation to find 
out who actually belongs to those numbers.
    Senator Sessions. Well, Chairman Leahy and others--and we 
talked when the PATRIOT Act passed, we went into great, great 
detail about all these issues. And I would say that balancing 
the constitutional rights of danger versus constitutional 
rights is not the right way to phrase this. I believe 
everything in the PATRIOT Act that we passed was consistent in 
principle to the very things that have been done by law 
enforcement for years and decades in terms of the ability to 
issue subpoenas and obtain records. Maybe a few new 
applications of it to new technologies, but essentially the 
principles were maintained. Would you agree, Mr. Cole?
    Mr. Cole. Yes, Senator. As I said at the beginning, I think 
we have struck the balance properly here, but there is always 
room for discussion and getting people's input. And times 
sometimes do change, and it is good to come back and revisit 
these things and make sure we have the balance right.
    Senator Sessions. Well, I agree with that. I think the 
questions that have been raised require us to look at that.
    Now, the data, this haystack of phone numbers, there is no 
ability to go back and listen to any of those conversations 
that occurred at a previous time, is there?
    Mr. Cole. No. We do not even capture through this any 
conversations, so there is no ability, no possibility of 
listening to conversations through what we get in this program.
    Senator Sessions. And, Mr. Litt, as an intel lawyer here, 
if you have the ability to tap a terrorist's phone call in 
Europe or Yemen, let us say, and that person calls to the 
United States, by definition of a lawful wiretap you listen to 
the persons that the individual calls. Is that right? So, I 
mean, a wiretap by definition is to listen to the conversations 
that the bad guy has with whoever he calls?
    Mr. Litt. That is correct, and under FISA the Court 
requires us to have minimization procedures to ensure that we 
do not retain or disseminate communications of Americans unless 
those are valid foreign intelligence or evidence of a crime.
    Senator Sessions. But if you want to tap a terrorist you 
have identified in the United States, you have to have a 
warrant with probable cause, do you not?
    Mr. Litt. That is correct.
    Senator Sessions. And so if you identify a person by 
surveiling a foreign terrorist, you identify phone calls to the 
United States, you would still have to have information 
sufficient to get a court to give you a Title III warrant to 
listen to that person's phone calls?
    Mr. Litt. It could be a Title III warrant. It could be an 
individual warrant under Title I of FISA. But either way there 
is a probable cause standard that has to be met.
    Senator Sessions. And it requires Court approval.
    Mr. Litt. Yes.
    Senator Sessions. Mr. Chairman, I know this Committee has 
worked hard on this. We tried to make sure that every provision 
in the Act was consistent with our constitutional and legal 
heritage. But we will listen to the concerns that are being 
raised, and if we made a mistake, I am willing to change it. 
But I am inclined to think all of these actions are consistent 
with the Constitution and laws of the United States.
    Chairman Leahy. One of the reasons we are having the 
hearing is that there are going to be some proposals for 
changes in the law, and I want to make sure that we have as 
much information as possible for it.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. I also want to 
thank all the witnesses here, Mr. Cole, Mr. Inglis, Mr. Litt, 
and Mr. Joyce, for your service to the country.
    I want to be clear at the outset. I think that these 
programs protect our country and have saved lives. But I do 
think there is a critical problem at the center of this debate, 
and that is the lack of transparency around these programs. The 
Government has to give proper weight to both keeping America 
safe from terrorists and protecting Americans' privacy. But 
when almost everything about these programs is secret and when 
the companies involved are under strict gag orders, the 
American public has no way of knowing whether we are getting 
that balance right. I think that is bad for privacy and bad for 
democracy.
    Tomorrow I am introducing a bill to address this, to fix 
this. It will force the Government to disclose how many 
Americans have had their information collected under key 
authorities in the Foreign Intelligence Surveillance Act, and 
it will give force--it will also force the Government to 
disclose how many Americans have had their information actually 
reviewed by federal agents.
    My bill would also allow private companies to disclose 
aggregate figures about the number of FISA orders that they are 
receiving and the number of their users that these orders have 
affected.
    Two weeks ago, a broad coalition of 63 Internet companies 
and bipartisan civil liberties groups sent a letter to the 
President asking for the reforms that my bill would make law. I 
am proud to say that I am introducing my bill with the support 
of Chairman Leahy, Senator Blumenthal, and a number of other 
Senators who are not on the Judiciary Committee. From what I 
just heard from Senator Feinstein, there may be some overlaps 
in our approaches, and I would be happy to work with her.
    I would like to focus my questions on the subject of 
transparency. Mr. Litt, in the weeks after Mr. Snowden's leaks, 
the Office of the Director of National Intelligence decided to 
declassify the fact that, in 2012, only 300 queries were run on 
the database of telephone records compiled under Section 215 of 
the PATRIOT Act. Can you tell me why the ODNI decided to 
declassify that fact?
    Mr. Litt. So, first, to be clear, what was declassified was 
the fact that there were fewer than 300 telephone numbers 
approved for queries. There can be more than one query based on 
the same telephone number if, for example, over time you want 
to check and see whether there have been any additional 
communications. So the number that was declassified was the 
number of selectors as to which reasonable, articulable 
suspicion had been established so that they could be the basis 
for a query.
    Senator Franken. Why did you decide to declassify the fact, 
and then?
    Mr. Litt. You know, what we are doing is we are looking at 
all of the information surrounding these programs, at what has 
already been revealed, because fundamentally these programs 
were classified in toto to begin with because of the feeling 
that revealing our capabilities would give our adversaries an 
edge in how to avoid those capabilities. Once the fact of the 
program became public, we began to look at all the details 
surrounding the program, such as the orders that we have 
released today and the number you mentioned there, and we are 
making an assessment as to each one of them as to whether it is 
in the public interest to release that particular fact that has 
previously been classified.
    Senator Franken. I think that I do not want the public to 
take our word for it always, and I think there is a balance 
here, and transparency is part of that balance. And I do not 
want a situation where the Government is transparent only when 
it is convenient for the Government. About an hour ago, ODNI 
declassified a FISA Court order under Section 215. That is a 
good thing. But ODNI has known for weeks that this hearing was 
coming, and yet ODNI releases material just a few minutes 
before the hearing began.
    You know, again, it is a step forward, but you get the 
feeling, when it is ad hoc transparency, that is not--that does 
not engender trust, I do not think.
    Mr. Litt. I could not agree with you more. I think we have 
an obligation to go through and look at the bad as well as the 
good and declassify what can be declassified without danger. We 
did actually have a discussion yesterday within the executive 
branch about whether we should release these documents this 
morning or not, because it is generally not a good idea to 
release things on the morning of a hearing. And I think we came 
to the conclusion that once we have made the determination that 
the documents should be declassified, there was no 
justification for holding them up any longer. And so that was--
--
    Senator Franken. Did you just start thinking about that 
decision like yesterday?
    Mr. Litt. No, but it----
    Senator Franken. When did you--I mean, you have known this 
for a long time. You might have been--you might have thought 
about this weeks ago and said, you know, maybe not the day of.
    Mr. Litt. We have been thinking about this for some time, 
and we have been processing these as quickly as we can. You 
will note that the documents that were released contain some 
redactions of information that remains classified.
    Senator Franken. Of course.
    Mr. Litt. It is a rather time-consuming interagency process 
to reach consensus on what can safely be released.
    Senator Franken. Well, my time is up, but I think we should 
create a strong permanent set of public reporting requirements 
that will empower the public to reach their own conclusions 
about the merits of these programs, and that is what the bill I 
am working on would accomplish. Again, I would love to work 
with Senator Feinstein and, Mr. Litt, I would love if you would 
work with me to make sure we get the reporting requirements 
right as we move forward with the bill. Would you do that?
    Mr. Litt. Absolutely. We would be glad to do that, sir.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Incidentally, we are going to go next to 
Senator Flake, but I do want to compliment all four of the 
witnesses who are here for their candor, and I might want to 
single out General Inglis--or ``Mr. Inglis'' I guess you go by 
now. And I have been advised and I understand from others that 
you have always been very direct, very clear, very 
straightforward. Often that is in classified sessions, but you 
have been the same way in open session, and I appreciate that.
    Senator Flake.
    Senator Flake. Thank you, Mr. Chairman, and thank you, and 
I am sorry I was not here to hear your testimony. I know that 
you have all noted in your written testimony that there are 
significant checks in the FISA system. Do you believe that 
there are insufficient checks to outweigh the concerns that 
some have about the appointment of an independent counsel? If 
you have touched on this in earlier questions, I apologize, 
but, General Cole, you mentioned that with regard to an 
independent counsel, do you think that there--in the second 
panel, Mr. Baker raises some issues and problems with 
independent counsel. Can you give me your thoughts on whether 
you think that is needed or not?
    Mr. Cole. Certainly, Senator. This is a topic that is being 
discussed both in the administration and in the Congress as one 
avenue that might be available. Traditionally, when you issue 
search warrants, when you issue wiretaps and things like that, 
in the criminal law you do not have an adversary process that 
takes place. There is not somebody on the other side. So there 
is a legal tradition that the way we have been doing it is 
certainly one that we have done in other contexts.
    We also have the Court that is involved, and that is 
unusual, as Mr. Litt had pointed out, particularly in a foreign 
intelligence context, to have the courts involved at all.
    But this is something that I think we are open to having 
discussions about as to what the utility would be, what the 
role would be, how it would work. The devil can many times be 
in the details, but we think all of these things are worth 
discussing to figure out how to make this the best program it 
can be.
    Senator Flake. If there were an independent counsel 
involved, can you foresee problems in terms of timeliness to 
have a lawyer staff cleared in time to review the sensitive 
information? If anybody else wants to address that as well.
    Mr. Cole. I will just start. It may be a little bit, but 
the Court pushes back a lot itself, and there is an enormous 
process that takes place with the Court itself to make sure 
that we have satisfied all the requirements under the law and 
under the Constitution. So if there is somebody on the other 
side doing it, I would imagine they would be doing the same 
thing on roughly the same schedule.
    Mr. Litt. If I can just add to that, there is a letter that 
the Chief Judge of the Foreign Intelligence Surveillance Court 
has written to the Chairman that I think is available on the 
Internet that outlines in some detail the procedures that the 
Court follows and I think gives a good sense for the care and 
thoroughness that the FISA Court exercises today.
    Senator Flake. There has been some criticism in that the 
process that we have for the selection of these judges may lead 
to more Republican judges being appointed than Democratic--or 
more Republicans appointing judges than Democrats appointing 
judges. Do you sense or see any difference in your experience, 
all of you, with--is that an issue that somebody ought to be 
concerned about? Or have you seen any difference in decisions 
rendered?
    Mr. Cole. From my experience I have not seen any decisions 
of the judges or judges in there being guided by the law and 
not necessarily by politics. But that is certainly a topic we 
would leave to the sound discretion of the Congress.
    Senator Flake. Any other thoughts from anybody else? Do you 
see any problems with that process, selection of judges? Mr. 
Litt.
    Mr. Litt. No, I was just going to say it is very hard to 
tell how another judge would have rendered a decision because 
you only have the one judge rendering the decision.
    Senator Flake. All right. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman.
    I am a liberal arts lawyer. I took some math courses, but 
it has been a long time ago, so I am going to ask the 
panelists, maybe Mr. Litt, Mr. Inglis, or whoever, to help me 
do some math here.
    In 2012, there were 300 queries that resulted in a search 
of records, and we are told that there were three hops. In 
other words, if I was the subject matter of this search and I 
called Senator Feinstein, they would accumulate all of the 
records of my telephone calls to her and others, and then all 
of the records of Senator Feinstein's telephone calls, which 
may have included Chairman Leahy, and now you have included all 
of his records as well.
    Mr. Jaffer of the ACLU will testify, at least speculate 
later, that if I had an average of 40 contacts, that would mean 
that for my name, my query, you would accumulate 2 million 
phone records--2 million for that one inquiry. Now multiply 
that in the year 2012 by 300. So we are talking about 600 
million phone records. Now multiply that times 7 years.
    So what has been described as a discrete program to go 
after people who would cause us harm, when you look at the 
reach of this program, it envelops a substantial number of 
Americans.
    So can somebody help me with the math here, if I have 
missed something along the way or perhaps should minimize that 
number?
    Mr. Inglis. Sir, if I could start, and apologizing for the 
format, the unclassified format, I will be discreet in my 
remarks but happy to follow up in any detail that you would 
prefer, either here or at NSA.
    First and foremost, the analysts are charged to provide 
information that is truly useful to the Federal Bureau of 
Investigation, and so in that regard they try to be judicious 
about choosing when to do a second hop or under the Court's 
authorization a third hop. Those are not always exercised. They 
do not always exercise a second hop for all numbers that might 
be pointed to by the first hop. And so while theoretically 40 
times 40 times 40 gets you to a large number, that is not 
typically what takes place.
    If an analyst were to see, for example, at the second hop 
that there are very significant numbers associated with one of 
those numbers, they would have to come to some deduction as to 
what that means. That could be that what you have kind of 
glommed onto is a pizza delivery man. You do not want to pursue 
that. That is not useful.
    If on that second hop you see that that has hopped to a 
foreign number already known to the intelligence community 
because it is a known terrorist, you would want to make the 
third hop to understand what is beyond that.
    Senator Durbin. I understand that part of it where you are 
trying not to waste the time or resources of our Government in 
protecting our Nation?
    Mr. Inglis. Yes, sir.
    Senator Durbin. But the potential reach of this, when we 
say 300, goes way beyond 300.
    Mr. Inglis. So I think that is a very important question. 
We have to compare the theory to the practice. We try to be 
very, very judicious in the use of this very narrowly focused 
authority. And so the reason that we declassified the numbers 
is to show that we are, in fact, judicious. Less than 300 times 
did we approve a query for selection--or a selector for query 
in 2012, and provided less than 500 numbers in 12 reports to 
the FBI in all of 2012.
    Mr. Litt. If I can just add one thing to that, it is 
important to remember that all that we are getting out of this 
is numbers--nobody's name, nobody's address, the content of no 
communications. These are all--this is nothing but a tool to 
try to identify telephone numbers that warrant further inquiry.
    Senator Durbin. I understand that. And here is the point, 
that I have offered an amendment before this Committee which 
garnered a grand total of four votes a few years ago on this 
very subject because most of the members were not aware of this 
program, the 215 program and its detail. I knew a little bit 
more than some, but obviously did not know as much as I am 
learning today. And there was a genuine concern today 
expressed. At that time because of the limited knowledge of the 
members, I got four votes.
    So here is the question I get down to, and it is asked over 
and over again. If my cell phone is in area code 217, which it 
is, and I am a suspect, I certainly think it is appropriate and 
I encourage our Government to find out who I am talking to. 
That is important. I still cannot get to the point of requiring 
every person with a 217 area code to have their records 
collected in terms of their telephone conversations.
    Now multiply that times every area code across America, and 
look at the potential reach. It seems to me that what is being 
described as a narrow program is really a very broad program in 
terms of the metadata collection on the front end. What I would 
like to ask--people have said, I have heard it from members of 
this panel, you know, we have saved lives with this. The 215 
program has saved lives, stopped terrorism. Good. That is what 
we want our Government to do.
    Could you have also saved the same number of lives and had 
the same impact if, knowing my telephone number as a suspect, 
you could search my records as opposed to collecting everyone's 
records in my area code?
    Mr. Inglis. So if I could go back to a case in point, 
perhaps that might be the best way to tease this out. I think 
that is a great question. The Basaaly Moalin case, what we knew 
at the time when we made that query was we knew a number that 
we had reasonable suspicion was affiliated with a terrorist 
group plotting against the homeland. That number was in 
Somalia. It was associated with Al-Shabaab. We had reasonable 
suspicion it was associated with something in the United 
States. We had no idea what it might have been associated with, 
and so we need to do a query. We did not know whether it would 
be associated with a 217 area code or a 303 area code, what of 
the grand set of possibilities was it associated with.
    In order to find the needle that matched up against that 
number, we needed the haystack. That is what the premise is in 
this case. And in that point, if just before somebody had made 
that query you had said this is going to connect to a number in 
San Diego, that would have been as surprising as if you had 
said that number is connected to someplace in Yemen.
    Senator Durbin. But, Mr. Inglis, I guess what it gets down 
to is this: Once establishing that number with Al-Shabaab, this 
operative from Al-Shabaab, you could certainly go after that 
person's telephone records and all of the contacts that that 
person has made. The basic question we are faced with is: Do 
you need to collect 5 years' worth of data on everyone in 
America and their telephone records so that the haystack, which 
is pretty big----
    Mr. Inglis. That is a fair question. So the question would 
be: Is it enough to look prospectively, in the future, right, 
at that particular number? It may well be that the plotting you 
are looking for occurred in the past. And if you do not have 
that person's records in the past, then you cannot determine--
--
    Senator Durbin. And a point that has been raised 
repeatedly, if we required the phone companies to retain the 
records for 5 years----
    Mr. Inglis. That is a very fair point, and that is 
possible.
    Senator Durbin. It would not be in the grasp of the 
Government, but accessed by the Government.
    Mr. Inglis. I agree, sir.
    Senator Durbin. Which serves the same purpose, does it not?
    Mr. Inglis. I agree. But under the current legal framing, 
the phone companies are not required to retain that for the 
benefit of the Government.
    Senator Durbin. How hard would that be?
    Mr. Inglis. I think it would require a legal change. I do 
not think that is hard.
    Senator Durbin. I do not think so either.
    Mr. Inglis. I think that you can get there from here. You 
have to then think about the rest of the attributes that are 
necessary to make this a useful venture.
    Senator Durbin. Senator Feinstein said: ``Ask him about the 
expense.''
    Mr. Inglis. I would say in a classified session I could 
give you chapter and verse on the expense. The expenses are 
different depending upon whether you choose the current 
implementation or you choose an implementation where you leave 
it at the providers. The Government, if it requires the 
providers to retain those records, should bear that expense.
    Senator Durbin. Thank you.
    Chairman Leahy. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    As I understand it, the NSA's collection of metadata, the 
kind of metadata that we have been discussing today, is 
accomplished pursuant to Section 215 of the PATRIOT Act. Now, 
Section 215(b)(2)(A) of the PATRIOT Act places an important 
limitation on that collection in that it limits the 
Government's ability to collect that metadata to circumstances 
where the data in question is ``relevant to an authorized 
investigation.''
    At some point--you know, relevance is a concept that is 
difficult to define in the abstract. It is a somewhat fluid 
concept, and it is one of those things that some jurist might 
say, ``I know it when I see it, but I struggle to define it.''
    Yet regardless of how difficult it might be to define in 
the abstract what relevance is, don't you think we have left 
the station of relevance long before we get to the point of 
collecting metadata on potentially 300 million Americans and 
their cell phone usage? How can one get one's mind around the 
concept of that volume of information, metadata or otherwise, 
all being relevant to an ongoing investigation?
    Mr. Cole. Well, Senator, Mr. Litt--and he can chime in--had 
noted a little bit earlier how broad, as you noted yourself, 
the concept of relevance is in civil discovery, in many 
different kinds of legal contexts. It can be things that will 
lead you to things that you need as a concept for relevance.
    Senator Lee. Right. I understand Mr. Litt's very broad 
conception of relevance, and as he recently explained in his 
comments at the Brookings Institution. But I assure you, as a 
recovering lawyer myself, there is no context in civil 
discovery or otherwise in which one may define ``relevance'' 
broadly enough to take in information regarding each and every 
single American who owns a telephone.
    Mr. Cole. The answer I would give to that, Senator, is that 
we are not really accessing or getting into all of that 
metadata that is stored in that database. We do not actually 
get to roam around in it. We do not get to look at it to our 
heart's content and then say, well, this is relevant and that 
is relevant, so let us take that.
    You have to look at it in the context of the primary order 
which was declassified and issued today that says the only way 
you can access it is if you have reasonable, articulable 
suspicion that the number you are going to query off of is, in 
fact, related to specific terrorist groups. And that has to be 
documented. And if you do not have that, you cannot get into 
this.
    So the surveillance concept I think is very important here. 
You cannot surveil this without that gate being checked 
through.
    Senator Lee. And that gate is not controlled by a warrant. 
I mean, if you want to access that, you do not have to go to 
court to get a warrant to access that. Those are controlled by 
internal procedures, correct?
    Mr. Cole. That is correct. But they are controlled by the 
Court order, and they are controlled by compliance audits that 
are done both by the executive branch and the Court looking at 
how it is implemented on a periodic basis.
    Senator Lee. Okay. Mr. Litt, do you have something to add?
    Mr. Litt. Yes, just very briefly. I just want to make clear 
that the standard of relevance that I articulated in the speech 
is not mine alone. This is one that has been approved by the 
judges of the FISA Court and was known to members of this 
Committee and the Intelligence Committee at the time that the 
Section 215 authority was renewed.
    Senator Lee. Well, I understand that. I understand that, 
and that has been part of the problem we have had, is that 
until recently most people did not have any idea about those, 
and we have significant constraints that limited our ability to 
explain why some of us had concerns with the PATRIOT Act, why 
some of us on both sides of the aisle voted against 
reauthorizing the PATRIOT Act. We were unable to speak about 
this publicly because we have secret procedures being 
undertaken pursuant to secret law, and it has been a bit of a 
problem.
    Now, what would you say, then, getting back to you, Mr. 
Cole, to my constituents? I understand what you are saying, 
that, ``We are collecting all of it but we are not looking at 
it. We are collecting it, but we are closing our eyes, so do 
not worry about it.'' What would you say to my constituents who 
say, ``I do not want the Government having that information. It 
is not the Government's information.'' It still does not make 
it relevant under the law. It still does not meet what many of 
my constituents believe to be well within their reasonable 
expectation of privacy for the Government to collect that much 
information, potentially information about 300 million 
Americans.
    Mr. Cole. Well, I would say two things. First of all, we 
have had 34 separate times a court say that it does meet the 
standard of relevance, to have it all and then have the 
restrictions. But the further thing that I would say, which I 
think is very important, is what we are doing here today, which 
is it is worth having a debate about is there a better way to 
do it. It is worth having a debate about where we are going to 
strike that balance between security for the Nation and making 
sure that people's privacy and civil liberty rights are being 
honored. And that is a tough balance to find, but it is a 
balance worth talking about, and it is the process that we are 
welcoming and engaging in right now.
    Senator Lee. Okay. Thank you. I see my time has expired. I 
just want to comment that I appreciate your insight on this. I 
do think it is worth discussing publicly, and I think it is 
also something that we need to consider from a constitutional 
standpoint. We have been relying on a 34-year-old Supreme Court 
case, Smith v. Maryland, to get at this idea that metadata is 
somehow beyond the reach of the Fourth Amendment. But we have 
to remember that Smith did not involve collection on hundreds 
of millions of Americans. It involved collection on a single 
target. It involved collection in a manner that is completely 
archaic by today's standards and that by today's standards 
would involve a minuscule amount of information.
    I think at some point when you collect that much data on 
that many people--whether it is that much data on one person, 
that might create some problem. That much data on hundreds of 
millions of people creates an even bigger problem and one that 
I think was not considered by the Supreme Court of the United 
States in Maryland v. Smith----
    Chairman Leahy. Thank you.
    Senator Lee [continuing]. One that we need to revisit. 
Thank you, Chairman.
    Chairman Leahy. Thank you, Senator Lee.
    Senator Whitehouse, again, showing the expertise here, you 
served both on this Committee and the Intelligence Committee. I 
appreciate you being here.
    Senator Whitehouse. Thank you, Chairman.
    Mr. Cole, you just said it is worth having a debate on 
these issues, and I think you are right about that. But I also 
hope that the executive branch takes a lesson from this 
experience about the value of classification or what I would 
consider overclassification. I have seen this over and over 
now. When we were fighting with the Bush administration about 
the torture program, the executive branch got to tell its side 
of the story because the executive branch were the 
declassifiers, and we were stuck with facts that we knew that 
blew up the argument that was being made by the executive 
branch, but that we could not articulate because they were 
classified.
    We have seen it on cyber where so much of the American 
public is unaware of the cyber threat that we are facing. Now, 
thankfully, we are becoming more aware, but for a long time we 
were just in the dark about what was going on because in the 
private sector companies did not want to talk about it for fear 
of aggravating their regulators, their consumers, their 
clients, even giving their competitors advantage, and the 
Government just wildly overclassified everything.
    Now we have, I think, a terrific article that Senator 
Feinstein wrote. We have, I think, very good testimony by Bob 
Mueller. We have a lot of good information out there that helps 
the American public understand these programs. But it all came 
out late. It all came out in response to a leaker. There was no 
organized plan for how we rationally declassify this so that 
the American people can participate in the debate.
    I think there is an executive branch reaction toward 
classification. I think that reaction is in part because of the 
advantage it gives the executive branch relative to the 
legislative branch, which cannot declassify. And I think over 
and over again we have found that, looking back, we are worse 
off for that effort in the first instance.
    So I would really urge you to take a look at this and, you 
know, when this thing burst, there is this old saying--I am not 
going to get it exactly right, but there is something about the 
rumor is all the way across town before the truth could even 
get its boots on. You have lived that experience in the last 
couple of months. I hope this has an effect on you, because 
this is a recurring problem and we really need to be balancing 
much more carefully the value of declassification against the 
value of classification.
    I think you guys are terribly one-sided in favor of 
classification, and then something like this comes and, pow, 
you are still trying to get your boots on because you never 
took the appropriate steps to put news out about this program 
that would have avoided, I think, a lot of this. And I would 
like to have you have a chance to react to that.
    Mr. Cole. I think you make very valid points, Senator 
Whitehouse, that these are all topics that we need to debate. 
They are not easy topics because they involve, again, that same 
balancing--the same balancing that we are trying to do between 
national security and civil liberties. And what kinds of 
programs we put into place to gain intelligence information is 
the same kind of debate we need to have about what is 
classified and what is not classified and what secrets we let 
out.
    If it was easy, we would be having these left and right. I 
do not think, at least from what I have seen, that the 
executive branch is doing it to disadvantage the legislative 
branch, but I think that may be----
    Senator Whitehouse. But it does have that effect.
    Mr. Cole. It may have that effect, and I would concede 
that. I think it is done because people are cautious, and it is 
easier to overclassify than to underclassify. It is safer to 
overclassify than to underclassify. And now we are having to 
get into the hard work of finding just where that line is, and 
that is a difficult job to do. But it is worth doing.
    Mr. Litt. Senator, could I just add----
    Senator Whitehouse. So something like this happens or the 
torture program gets exposed or we have a significant cyber 
attack, or something happens that shows that that short-term 
decision that it was easier to classify was actually the wrong 
decision.
    Mr. Litt. I just want to add on this--and I know you are 
familiar with what I am about to say, but we are having a 
public debate now, but that public debate is not without cost. 
The information that has been leaked is going to do damage to 
our ability to protect the Nation. We are going to lose 
capabilities. People are paying attention to this.
    The way that typically the Congress, both through the 
legislation it passes and through its own internal rules, has 
historically sought to achieve the balance between appropriate 
oversight of intelligence activities and the need to protect 
sources and methods is through primarily the Intelligence 
Committees but also some other committees of Congress--this 
Committee, the Armed Services Committee, the Appropriations 
Committees. And typically that is the forum that has been used 
to strike this balance. It may be----
    Senator Whitehouse. I get that, and my time has expired, so 
let me just jump in and say we all get that. My point is that 
the American public is an important part of this debate, and we 
would probably be better off if there was not such a strong 
instinct in favor of classifying and keeping things classified 
and we developed information for the American public in a way 
that minimized that intelligence collection loss and allowed us 
to have this debate.
    Thank you.
    Chairman Leahy. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. I want to join 
in thanking the Chairman for this hearing and for his 
legislative proposal, which I have joined, and to each of you 
for your extraordinary contribution to our Nation but also to 
the thousands of others in the intelligence community and 
special operations who have thwarted and stopped terrorist 
threats to this country and which all too often I believe have 
been ignored because the efforts to stop them have been so 
successful, and the debate, as Mr. Cole has termed it, is one 
that is very appropriate in a free society that is trying to 
protect itself from terrorism by using search and surveillance, 
which have a role, and what we are grappling to do here is to 
define how to reconcile the secrecy of search and surveillance, 
which necessarily have to be so, with privacy and civil 
liberties and all the other constitutional guarantees that make 
us unique among the nations in the world and, in fact, the 
greatest Nation in the history of the world.
    You know, I have been a litigator for close to 40 years. I 
have never doubted that the scores of judges that I have 
litigated before have a commitment to rights of privacy and all 
the constitutional rights. And I have no doubt about the FISA 
judges pushing back and having a commitment to the rule of law. 
But in appearance, this system is failing, and failing fast, to 
maintain the trust and credibility of the American people who 
want to be protected from terrorist threats, but at the same 
time also protected from the degradation of their 
constitutional rights.
    So I am introducing a bill that would change the 
appointment and selection procedure so that the appearance and 
the reality of diversity of view and aggressive protection of 
constitutional rights is maintained and enhanced. And I will be 
introducing that bill tomorrow that would involve the circuit 
court judges on our courts of appeals, chief judges, in the 
appointment process, with the continued involvement of the 
Chief Justice, and change also the FISA Court of Reviews 
selection process.
    I have found in my years that one of a judge's worst 
nightmares is incompetent counsel, and the reason is, 
especially in a criminal trial, that incompetent counsel or 
lack of counsel for the defendant means that the record on 
appeal is weaker, that the test and clash of litigation is 
diminished in quality, and that is the basic principle that I 
think should be involved in some way in the FISA Court as well.
    And so a second bill that I am proposing is for a special 
advocate to be involved not necessarily in the ex parte 
proceedings on every single warrant or surveillance or search, 
but at some point where there are significant issues of law so 
that different sides are presented, challenges are made, and 
the judge or panel has the benefit of that contention that is 
at the core of our court process. Our courts not only insist on 
but thrive on the clash and testing of different points of 
view. Whether it is debate on a legal issue or cross-
examination, that is at the essence of our litigation process.
    So I think in appearance, if not reality, the current 
design of the FISA Court stacks the deck against the protection 
of our civil liberties and can be improved and enhanced without 
sacrificing either speed or security, because those special 
advocates can be cleared beforehand for security purposes, they 
can be involved after the fact, if necessary, on appeal in 
effect to the FISA Court of Review or to the U.S. Supreme 
Court. And I hope--and this is to lead to the question--I hope, 
Mr. Cole and Mr. Litt, that you will join in this process of 
trying to improve the current FISA Court structure. And I would 
like to know whether there is active consideration of changes 
in the selection procedure and the involvement of potentially a 
special advocate or independent counsel of some kind in this 
process.
    Mr. Cole. Senator, I think at this point there is active 
consideration of a range of issues just to get at the kinds of 
things you are talking about, to make sure that the process 
works as well as it can, to balance both of those important 
issues of national security and civil liberties and privacy, 
and to make sure that it is transparent enough so that we 
maintain credibility with the American people about this 
program.
    It is a difficult issue, as we have discussed today for 
several hours, to find the right balance. But, yes, it is 
definitely something under consideration and active discussion 
in the administration.
    Senator Blumenthal. Thank you, Mr. Chairman.
    Chairman Leahy. Mr. Cole, I have a question. As I 
understand it, the Government believes that every single 
domestic phone record is relevant to terrorism investigation 
and can be obtained using Section 215 of the PATRIOT Act. And I 
understand the FISA Court agrees with that interpretation, but 
you then place restrictions on how it can be used once you have 
collected it. But I do not understand what limits there might 
be under this theory. Couldn't you invoke under this--couldn't 
you invoke Section 215 to obtain virtually all available 
commercial data? If Americans' phone records are relevant, how 
about our credit card records, what sites we go on on the 
Internet, what we may bookmark, our medical records, if we have 
it on the computer, or firearms records, we keep a list of what 
firearms we hold? Are all those things available?
    Mr. Cole. Well, I think there are two important points 
here, Mr. Chairman.
    Number one is that the only way the Court finds these 
relevant is in the context of the restrictions and in the 
context of what it is you are looking for. So you have to take 
all of those features of this phone record process into account 
of how can it be done, how reasonably can it be done, what is 
the need for speed, what is the need to integrate all the 
different records that are coming together, and finds only when 
you look at that entire mix that this kind of program, with 
these restrictions----
    Chairman Leahy. I understand----
    Mr. Cole. To your question, you would have to make that 
same showing for those other kinds of records as to the need 
for that breadth and the need for those restrictions.
    Chairman Leahy. But if our phone records are relevant, why 
wouldn't our credit card records be--wouldn't you like to know 
if somebody is buying the fertilizer used in bombs?
    Mr. Cole. I may not need to collect everybody's credit card 
records in order to do that because, again, these are--we are 
not collecting all their phone records so that we can wander 
through them. And it is only the phone records that are being 
used to look at the connections. If somebody is buying things 
that could be used to make bombs, of course, we would like to 
know that, but we may not need to do it in this fashion.
    Chairman Leahy. Well, Director Clapper said NSA would 
notify Congress before obtaining cell phone location 
information under this program. Is there any legal impediment 
to you expanding the program for cell phone location?
    Mr. Cole. I do not believe there would be a legal 
impediment, and yesterday the Fifth Circuit issued a ruling 
that goes to that issue. But the legal impediments are not the 
only issues that you take into account here.
    Chairman Leahy. I understand. Well, I want to put several 
items in the hearing record:
    Written testimony from Mark Zwillinger who represented 
Yahoo! in its challenge to a directive received under the 
PROTECT America Act; he is one of the few non-Government 
lawyers to appear before the FISA Court, so that is important 
insight;
    A letter from Judge Reggie Walton, presiding judge of the 
Foreign Intelligence Surveillance Court, responding to 
questions from Senator Grassley and myself;
    A letter from a coalition of communications companies and 
advocacy groups regarding transparency;
    A letter from a coalition of privacy and civil liberties 
groups recommending staff--a letter from the Constitution 
Project supporting S. 1215, the FISA Accountability and Privacy 
Protection Act.
    Those will all be placed in the record.
    [The information referred to appears as a submission for 
the record.]
    Chairman Leahy. If there are no further questions for this 
panel, and if there are not, I would thank all four of you. I 
know you have spent a lot of time preparing for this. I thank 
you all for being here. I know you have a lot of other things 
you should be doing and can be doing, but thank you for taking 
this time.
    We will start on the next panel. If we are interrupted by a 
vote, we will then stop until 12:30 when Senator Blumenthal has 
offered to come back and preside, but we would call up Judge 
Carr, James Carr, U.S. District Court for the Northern District 
of Ohio; Jameel Jaffer, the deputy legal director, American 
Civil Liberties Union; and Stewart Baker, a partner at Steptoe 
& Johnson. I thank you all very much.
    [Pause.]
    Chairman Leahy. I thank the witnesses who are here, and I 
apologize in advance if we end up having to recess for a period 
of time and come back. But, Judge Carr, why don't we begin with 
you, and thank you for coming here.

 STATEMENT OF THE HONORABLE JAMES G. CARR, SENIOR JUDGE, U.S. 
 DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, TOLEDO, OHIO

    Judge Carr. Thank you, Senator. It is my pleasure to be 
here. I served on the Foreign Intelligence Surveillance Court 
from 2002 to 2008. I have been a United States district judge 
since 1994 and before that a magistrate judge since 1979. I am 
the author of a two-volume treatise on the law of electronic 
surveillance, which I suspect played a role in the decision to 
appoint me to the Court.
    I want to make clear, as I hope I did in my brief prepared 
remarks, that I am here solely on my own behalf. I am not here 
on behalf of the Judicial Conference, the Administrative 
Office, the judiciary generally, or the Foreign Intelligence 
Surveillance Court. And actually I think why I am here today is 
because by coincidence I happened to have an op-ed piece 
published a week ago in the New York Times in which I made a 
proposal that I am glad to be able to make in front of this 
Committee in a somewhat more public fashion.
    Chairman Leahy. And that op-ed piece will be made part of 
the record.
    Judge Carr. Thank you.
    [The op-ed appears as a submission for the record.]
    Judge Carr. Very simply put, what I propose is that 
Congress amend the Foreign Intelligence Surveillance Act simply 
to give, sort of officially give the discretion to the 
individual judges of the Foreign Intelligence Surveillance 
Court, or if they sit en banc, the ability to appoint a 
security-cleared attorney to represent the interests of the 
public and interject to some extent the adversary process at 
the level of the Foreign Intelligence Surveillance Court.
    I listened with interest to Senator Blumenthal's suggestion 
about an advocate who would become engaged at the level of the 
Court of Review. Speaking, again, solely on my own behalf, the 
origin of this thought comes from my experience as a member of 
that Court for that period.
    There were a couple of occasions--I cannot count them but 
fewer than the fingers on one hand, I am sure--in which I felt 
as a district judge that it would have been useful, when the 
Government proposed some new program some new method or means 
of acquisition, that it would have been useful to have somebody 
speak in opposition to the request and to hear the other side. 
That would, it seems to me, accomplish two things, and if that 
discretion were available to members of the Court, particularly 
when issues arose under Rule 11 of the current Rules of 
Procedure, which require that the Government notify the judge 
when something new or novel is being proposed. That is what 
they did when we were there, and that was always very useful. 
But in any event, I think my proposal would have two very 
beneficial consequences.
    One, as I believe Senator Blumenthal already alluded to, it 
would provide us with the opportunity as judges to reach more 
informed decisions, because we would have heard two points of 
view. That is what we do day in and day out in our chambers and 
in our courtrooms. We are accustomed to that, and we are 
comfortable with that.
    Second, it would create a mechanism which I think is very 
important for in instances when the Government prevails, in 
which the Foreign Intelligence Surveillance Court judge 
approves the new and novel request, because there was a lawyer 
engaged at the outset, that lawyer could seek review before the 
Foreign Intelligence Surveillance Court of Review and in turn 
before the U.S. Supreme Court.
    Today, of course, only the Government can appeal, and the 
Government has done so I believe on a couple of occasions. I am 
familiar with one. But there was nobody there on behalf of the 
other side, as it were. And as I say, I think that my proposal 
is fairly simple, straightforward, economical, and I think it 
would be very useful.
    Thank you for hearing me out, and I welcome your questions 
as to what I have to say.
    [The prepared statement of Judge Carr appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Judge. And I should 
note you were on the FISA Court from 2002 to 2008.
    Judge Carr. Right.
    Chairman Leahy. I believe Chief Justice Rehnquist, a part-
time Vermonter, rest his soul, was the one who appointed you.
    Jameel Jaffer is the deputy legal director at the American 
Civil Liberties Union, director of the ACLU's Center for 
Democracy, currently counsel to the plaintiffs in ACLU v. 
Clapper, challenging the NSA's phone records program. He has 
litigated several cases concerning the PATRIOT Act and FISA 
Amendments Act.
    Please go ahead.

  STATEMENT OF JAMEEL JAFFER, DEPUTY LEGAL DIRECTOR, AMERICAN 
      CIVIL LIBERTIES UNION FOUNDATION, NEW YORK, NEW YORK

    Mr. Jaffer. Thanks. Thank you for the invitation to 
testify.
    Over the last 2 months, it has become clear that the NSA is 
engaged in far-reaching, intrusive, and unlawful surveillance 
of Americans' telephone calls and electronic communications. 
The surveillance programs we are talking about this morning are 
the product of both defects in the law and defects in the 
current oversight system. FISA affords the Government sweeping 
power to monitor the communications of innocent people. 
Excessive secrecy has made congressional oversight difficult 
and public oversight impossible. Intelligence officials have 
repeatedly misled the public, Congress, and the courts about 
the nature and scope of the Government's surveillance 
activities. The ordinary federal courts have improperly used 
procedural doctrines to place the NSA's activities beyond the 
reach of the Constitution. And structural features of the FISA 
Court have prevented that Court from serving as an effective 
guardian of individual rights.
    Surveillance supposedly undertaken to protect our democracy 
now presents a threat to it. It is not simply that this 
surveillance has dramatic implications for individual privacy, 
though plainly it does. Pervasive surveillance is also 
poisonous for free speech and free association. People who know 
the Government could be monitoring their every move, their 
every phone call, or their every Google search will comport 
themselves differently. They will hesitate before visiting 
controversial websites. They will hesitate before joining 
controversial advocacy groups. And they will hesitate before 
exercising rights that the Constitution guarantees.
    Now, individually those hesitations may appear to be 
inconsequential, but the accumulation of those hesitations over 
time will alter the nature of our democracy. It will alter 
citizens' relationship to one another, and it will alter their 
relationship to their Government. That much is clear from the 
history of many other countries. And it is what the Church 
Committee warned of more than 30 years ago. That warning should 
have even more resonance today because in recent decades the 
intelligence agencies' resources have grown, statutory and 
constitutional limitations have been steadily eroded, and the 
technology of surveillance has become exponentially more 
powerful.
    Because the problem Congress confronts today has many 
roots, there is no single solution to it. But should take 
certain steps right away.
    First, it should amend FISA to prohibit ``dragnet'' 
monitoring of Americans' communications. Amendments of that 
kind should be made to the FISA Amendments Act, to FISA's so-
called business records provision--that is, Section 215--and to 
the national security letter authorities.
    Second, Congress should end the unnecessary and corrosive 
secrecy that has obstructed congressional and public oversight. 
It should require the Government to publish basic statistical 
information about the Government's use of foreign intelligence 
authorities. It should ensure that the gag orders associated 
with national security letters are limited in scope and 
duration and imposed only when absolutely necessary. And it 
should require the publication of FISA Court opinions that 
evaluate the meaning, scope, or constitutionality of the 
foreign intelligence laws.
    Finally, Congress should ensure that the Government's 
surveillance activities are subject to meaningful judicial 
review. It should clarify by statute the circumstances in which 
individuals can challenge Government surveillance in ordinary 
federal courts. It should provide for open and adversarial 
proceedings in the FISC, in the FISA Court, when the 
Government's surveillance applications raise those kinds of 
novel issues of statutory or constitutional interpretation. And 
it should enact legislation to ensure that the state secrets 
privilege is not used to place the Government's surveillance 
activities beyond the reach of the courts.
    Thank you again for the opportunity to testify.
    [The prepared statement of Mr. Jaffer appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Mr. Baker, you are a partner, I understand, in the law firm 
of Steptoe & Johnson, but you were originally general counsel 
of the National Security Agency. You were the first Assistant 
Secretary for Policy at the Department of Homeland Security. We 
are happy to have you here, sir. Please go ahead.

STATEMENT OF STEWART A. BAKER, PARTNER, STEPTOE & JOHNSON LLP, 
                         WASHINGTON, DC

    Mr. Baker. Thank you, Mr. Chairman. It is a pleasure to 
appear before you and the other members of the Committee again. 
Just two points about this program I think are important to 
begin with.
    First, the kind of information that is being gathered 
here--phone numbers, phone records, billing records, in 
essence--is the sort of information for which a million 
subpoenas a year are served by law enforcement on phone 
companies today. This is not data that is kept out of the hands 
of Government by existing procedures and not the kind of data 
that has been abused in obvious ways since they have been doing 
this since the beginning of billing records almost a century 
ago. So this is not extraordinarily sensitive information.
    And neither is this an unchecked program. I think, having 
looked at the order that was declassified this morning and 
having heard the procedures that have been described in the 
past, it is pretty clear that the people who are reviewing 
these records are subject to more scrutiny, more checks, more 
discipline than any of the other law enforcement agencies that 
have subpoenaed a million records from the phone companies each 
year.
    The problem, obviously, from the discussion here is that 
the Government gathered the information and put it in a 
database first, and that is an unusual step. The question is: 
What could we do other than that? If we leave this with the 
phone companies and try to gather the information from the 
phone companies, first, they will get rid of this information 
when they choose to, when it is no longer of interest to them, 
which would be in a matter of months. We have no guarantee it 
will be there when we need it. We have no ability to search 
across the records of each of those phone companies to do the 
kind of analysis that we need to do to find the folks that have 
been found with this program.
    And, finally, I suppose we could pay them to put it in a 
format and keep it for a period of time that we thought was 
necessary to run this program, but then you have created a 
database that every divorce lawyer in America is going to say, 
``Well, that is AT&T's data. I am just going to subpoena it.'' 
This is not something that we really want to do. Who is going 
to search it? Is the phone company going to search it? Are we 
going to ask China Mobile to do searches for national security 
targets on the data that they are storing? Or are we going to 
give the Government access to the servers? Which is, of course, 
what caused the flap over the 702 program in the first place.
    So I think there are real problems with leaving this in the 
hands of the private companies, and that is why as a practical 
matter the Government chose the route that it did.
    The other problem obviously is that this has been kept 
secret, and I have to say the fact is--and I have spent a 
lifetime doing this--you cannot do intelligence in public 
because the targets are the most interested in how you do it 
and what the limitations you have imposed on yourself may be. 
And, therefore, disclosing the limitations, arguing about 
exactly how we are going to do this reveals to the people we 
are trying to gather intelligence on, who in many cases are 
trying to kill us, exactly what it is that we are trying to do. 
So there is a big cost to doing this in public and to having 
the kinds of disclosures that we are having.
    Last thought, and I have heard Senator Blumenthal's 
proposal and Judge Carr's proposal. I have to express some 
doubts about the idea of appointing a counsel from outside the 
Government to represent--I do not know--well, that is the first 
question. Who or what is this person supposed to be 
representing? Are they representing the terrorists? Are they 
representing the Court? Are they representing some abstract 
interest in civil liberties? Or are we just going to let them 
decide?
    You know, we got rid of the independent counsel law 
precisely because we were uneasy about having private parties 
just make up their own public policy without any check from 
political decisionmakers or without any client. And I fear we 
are getting into the same situation if we start appointing 
counsel to represent something in the context of these cases.
    I will stop there and be glad to answer questions.
    [The prepared statement of Mr. Baker appears as a 
submission for the record.]
    Chairman Leahy. Thank you, and we are going to wrap up 
because the vote is going to start. But, Judge Carr, what about 
that? Your proposal was not to have counsel in every single 
case but where there were special legal issues raised. Is that 
correct?
    Judge Carr. Absolutely. It would be a probably very 
infrequently invoked opportunity that I am asking you to put in 
the hands of the individual judges when they encounter new and 
novel questions.
    Chairman Leahy. Thank you.
    Judge Carr. And if I may speak to the issue of who is the 
client, obviously there is no client in the conventional sense. 
This is, admittedly, an unorthodox procedure. In the op-ed and 
my remarks, I tried to indicate why it is important, even 
though we do not have it in Title III applications or search 
warrants.
    I think ultimately that the individual represents--that 
lawyer that I am talking about, precleared by security, set to 
go--would represent the interests of the public generally in 
seeing to it that the balance between constitutional rights, 
the Fourth Amendment, and the President's authority to conduct 
our foreign affairs is maintained and upheld and not tilted one 
way or the other. And to some extent, I would hope that if this 
process were in place, it would enhance public confidence in 
the results reached, regardless of what they were, and 
particularly those when they favored the Government, because 
the public would know somebody was in there speaking on its 
behalf generally and broadly but in opposition to the 
Government's request.
    Chairman Leahy. Thank you very much.
    Senator Blumenthal, I am going to turn it over to you, and 
then when the vote starts, we can recess. I thank you very 
much.
    Senator Blumenthal [presiding]. Thank you, Mr. Chairman. I 
think that the proposal that I will be making in my legislation 
is very similar to the suggestion you have made, and I want to 
thank, Judge Carr, for the thought that you and Judge Robertson 
have devoted to this subject and the very insightful ideas that 
you have suggested. And there are other instances, as we all 
know as lawyers, where the court essentially appoints counsel 
from time to time in both civil and criminal proceedings to 
represent, in essence, the public interest or some perhaps non-
identifiable individual who might at some point in the future 
have an interest in the proceedings. And, indeed, in this 
instance what I proposed is an Office of Special Advocate whose 
attorneys would be precleared and whose security credentials 
would be on a part with, in effect, the prosecutors or the 
Government, and on those novel or significant issues of law 
that arise from time to time could represent in essence an 
opposing point of view, a different side, as Judge Robertson 
has put it. The basic idea is that judges are accustomed to 
hearing two sides of an argument, as you have articulated so 
well.
    So I think some of the practical objections are easily 
addressed, and what I would like to ask you is whether there 
are, in fact, significant and novel issues of law that do arise 
from time to time where you think either before the FISA Court 
or on review ultimately the development of the law would be 
enhanced by having an opposing point of view represented.
    Judge Carr. I do, and I think to some extent you can look 
at Rule 11 of the Foreign Intelligence Surveillance Court Rules 
of Procedure, which requires the Government to call the judge's 
attention to something that is new and novel. So you already 
have in place sort of a flagging mechanism, and that actually 
codified the way things worked in any event when I was a member 
of the Court. The Government really was an honest broker and 
said, ``Judge, looking at paragraph 73 to 78, that is something 
you have not seen before.'' And there were times when that 
happened, when simply to hear another side, I wished or hoped 
or desired that there is somebody else picking up and giving me 
a different view.
    Let me say, Senator, I find your proposal interesting and 
very worthwhile. I would only suggest bring it down to the 
level of the FISC itself. In other words, do not wait for an 
appeal because that way you will have a fully developed record, 
the agencies would have been laid out, the judge would have 
reached hopefully a reasoned and informed decision, and written 
an opinion with reasons that then whoever is unhappy with it 
can be taken for appellate review. That is the way it works 
normally. That is the way it should work in the foreign 
intelligence surveillance context.
    Senator Blumenthal. And to some extent, you have already 
anticipated my proposal because it would, in fact, enable 
representation of two sides in the FISA Court as well as the 
Court of Review because, as you well know, a record is 
essential often to determining an issue of law simply to 
clarify what factual issues are at stake.
    And I think the important point for people to understand--
and this really goes to perhaps some of the objections to the 
proposal. In the criminal context, when a warrant is issued, it 
is almost always ex parte----
    Judge Carr. Always.
    Senator Blumenthal. Always ex parte, except sometimes in a 
grand jury if in very exceptional cases opposing counsel is 
present. But then at some point, the question of admissibility 
arises to the evidence that is garnered as a result of the 
warrant or surveillance or other means of activity by the 
Government. And at that point there is a public hearing.
    Judge Carr. And also keep in mind, certainly with an 
ordinary search, the subject learns immediately, comes home, 
the door has been broken, knocked down. But if indicted, he can 
file a motion to suppress. Even if not indicted, the subject 
can file a motion under Rule 41 for return of property: Give me 
my money back, give me my whatever it is back. But there are 
mechanisms that are available to question and to raise and to 
challenge the legitimacy of what the Government has done. And 
that is why I proposed--that is one of the purposes of my 
proposal, is to enable the opportunity to test the legitimacy 
of what the Government has done.
    Day in and day out, something I want to emphasize, the 
applications that the Foreign Intelligence Surveillance Court 
reviews, they are fact based. They have a very low standard of 
probable cause, and properly so, because as another witness 
mentioned, or one of the Senators, this represents what I 
consider to be a brilliant--the FISA represents a brilliant 
compromise reached by the legislative branch in a 
constitutionally uncertain area. I mean, where in Article II 
does it say that a court has anything to do with the 
President's conduct of foreign affairs? On the other hand, the 
Fourth Amendment applies to the President. And nobody knows how 
far either of those reach, and that is why the FISA is so 
useful and I think effective.
    Senator Blumenthal. And this proposal, while it might lend 
itself to greater transparency, would still keep secret the 
FISA Court proceeding at a stage when secrecy is paramount for 
the search and surveillance activity. It would simply enable--
and I think you have used the key word--the ``testing'' of the 
Government's claim that the surveillance or search is both 
legal and necessary.
    Judge Carr. Well, actually, if I can say, Senator, we do 
not consider--I am speaking in the past tense. I did not 
consider and I do not think the judges do consider the 
necessity for the surveillance. I think that is quite clear 
under the Act. We look at only probable cause, agent of a 
foreign government, active on behalf of foreign terrorist-based 
organization, that is it. We do not second-guess and say, gee, 
how come you are spending money on this instead of that?
    Senator Blumenthal. Mr. Baker, let me ask you, does any of 
this discussion between Judge Carr and myself allay some of 
your concerns?
    Mr. Baker. Some of the concerns, yes. Obviously if you have 
got a full audience, full office ready to go and you are 
focused on the Court of Review where the issues are teed up, it 
is easier to justify having a special counsel appointed.
    I do have to say that I question the assumption that 
creating this office will make people feel better about the 
functioning of the Court and the national security apparatus in 
general because it will necessarily be secret. And I have 
watched as the General Counsel of the National Security Agency 
tried to act as an advocate for the public interest, as the 
Inspector General of the National Security Agency was put 
forward as an advocate for the national interest. As the Office 
of Intelligence at the Justice Department said, ``We will 
represent the public interest. We are not in bed with the 
intelligence community. We will ride herd on them.'' And yet 
every time there is a fuss--well, and even the clerks who serve 
the FISA Court act as a kind of institutional second voice, and 
none of that matters at the end of the day when a scandal of 
this sort blows up.
    So I question whether people will not simply say, ``Oh, 
well, sure, this person was representing the public interest, 
but he got his security clearance from the Government, he might 
be paid, his staff is paid by the Government. It is really just 
a sham.'' So I fear that this will not have the effect that you 
are hoping it will.
    Senator Blumenthal. Well, hopefully it will improve and 
enhance the process, which, at the end of the day, gives people 
the trust and credibility in the system. And maybe I should ask 
that question of Mr. Jaffer. Would you and others with your 
very commendable and admirable commitment to civil rights and 
civil liberties be somewhat reassured--I am not saying that you 
would give it a gold star necessarily, but would it provide 
some reassurance?
    Mr. Jaffer. Absolutely. I do think it would provide some 
reassurance. I think it is important that there be some form of 
adversarial process, especially when these issues raise 
questions of constitutional interpretation or statutory 
interpretation that are new. And I think that one of the 
important roles for the special advocate is to press for 
transparency where transparency is appropriate and possible. So 
I think it would be a very significant improvement to the 
system.
    Now, I do not think it is enough. I think it has to be 
paired with some other reforms, including reforms relating to 
transparency and a narrowing of the substantive standards that 
the FISA Court is applying. But I absolutely do think that this 
would be a step in the right direction.
    Senator Blumenthal. And I would agree with you that some 
greater degree of transparency on the orders and opinions so 
that the public has some greater access to rulings of law at 
the very least, with sensitivity to the need for redacting 
details that security may require, as well as--I do not know 
whether you were here earlier, but I have a proposal to change 
the method of selecting the members of the FISA Court that 
would, in essence, give the chief judges of the courts of 
appeal a role in designating the individuals so that the Chief 
Justice of the U.S. Supreme Court would not be the sole source 
of those appointees.
    But I think moving in this direction would not only be good 
for the credibility of the Court, but good for the ultimate 
justice of the outcome and protecting rights and liberties.
    Mr. Jaffer. Just on the transparency point, Mr. Baker said 
earlier that we cannot expect the Government to do intelligence 
in public, and I think that is a fair point. But I think it is 
crucial to remember the distinction between law and policy on 
one hand and sources and methods on the other. The public has a 
right to know what the Government's policies are and what the 
legal basis is for those policies. And that is all anyone is 
asking for. Nobody is suggesting that the factual basis for the 
Government surveillance should be disclosed or that the 
surveillance targets' names should be disclosed while the 
Government is engaged in the surveillance. The debate is not 
about that. The debate is about, should the public know what 
the Government's policies are? And I think in a democracy that 
should not really be a debate at all.
    Judge Carr. Senator, if I may, I was appointed, in effect, 
by the chief judge of our circuit, Boris Martin. The way it 
worked with me is I was one of the judges appointed to the four 
positions created in the PATRIOT Act. Judge Martin had been 
well aware of my interest because of the work I had done in 
publication with regard to electronic surveillance generally. 
It is my understanding the Chief Justice called upon Ralph 
Mecham to reach out to propose somebody. It happened to be the 
Sixth Circuit's turn apparently, and Judge Martin called me and 
said, ``Jim, I got this call from Ralph Mecham. I am forwarding 
your name.''
    So at least when I was appointed 10 or more years ago, it 
seems to me that might be codifying the practice.
    Senator Blumenthal. It may be, Judge Carr, but we have no 
idea, do we?
    Judge Carr. Right.
    Senator Blumenthal. Because the process is so secretive and 
the effort to formalize what happens behind closed doors or 
behind the veils of the Chief Justice's office may enhance some 
confidence, at least cannot hurt.
    Judge Carr. Well, also, one other point on the issue. A 
role for the advocate, however you want to call it, in urging 
that portions or complete opinions both of the FISC and the 
Court of Review become public, I think that individual could--I 
had not thought about that, but I think that individual could 
also perform that role in urging the Government to be diligent 
and thorough and see to it that, to the extent that anything 
can be disclosed, that it is.
    Senator Blumenthal. Unfortunately, I have got to--I am 
probably the only Senator at this point who has not voted, and 
I have to apologetically excuse myself to do so. I think I have 
authority to close this hearing.
    The record will remain open for 1 week. I want to thank 
each of you for being here. Your testimony has been remarkably 
helpful and effective, and I will be calling on you again in 
the course of my work on this issue personally. I am sorry that 
more of my colleagues were not here to hear you themselves, but 
I am sure they will review the record of what you had to say.
    So thank you very much. This hearing is adjourned.
    [Whereupon, at 11:22 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
                            A P P E N D I X

              Additional Material Submitted for the Record

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                Prepared Statement of Hon. Patrick Leahy

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                  Prepared Statement of James M. Cole

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                  Prepared Statement of John C. Inglis

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                  Prepared Statement of James G. Carr

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                  Prepared Statement of Jameel Jaffer

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                  Prepared Statement of Stewart Baker

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         Questions submitted by Senator Leahy for James M. Cole

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        Questions submitted by Senator Leahy for John C. Inglis

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         Questions submitted by Senator Leahy for Jameel Jaffer

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       Questions submitted by Senator Grassley for James M. Cole

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       Questions submitted by Senator Grassley for John C. Inglis

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       Questions submitted by Senator Grassley for Robert S. Litt

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       Questions submitted by Senator Grassley for Sean M. Joyce

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       Questions submitted by Senator Grassley for James G. Carr

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       Questions submitted by Senator Grassley for Jameel Jaffer

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       Questions submitted by Senator Grassley for Stewart Baker

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Responses of James M. Cole to questions submitted by Senators Leahy and 
                                Grassley

[note: some responses of james m. cole are classified and therefore not 
                  printed as a part of this hearing.]

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 Responses of John C. Inglis to questions submitted by Senators Leahy 
                              and Grassley

[note: the responses of john c. inglis are classified and therefore not 
                  printed as a part of this hearing.]

 Responses of Robert S. Litt to questions submitted by Senator Grassley

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 Responses of Sean M. Joyce to questions submitted by Senator Grassley









 Responses of James G. Carr to questions submitted by Senator Grassley

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Responses of Jameel Jaffer to questions submitted by Senators Leahy and 
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 Responses of Stewart Baker to questions submitted by Senator Grassley

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                Miscellaneous Submissions for the Record

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