[Senate Hearing 113-646]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-646




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                       TUESDAY, JANUARY 14, 2014


                          Serial No. J-113-46


         Printed for the use of the Committee on the Judiciary
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                       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
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director
                            C O N T E N T S




Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont....     1
    prepared statement...........................................    40
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................    42
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     7


Witness List.....................................................    39
The Hon. Cass R. Sunstein, The Hon. Richard A. Clarke, Michael J. 
  Morell, Geoffrey R. Stone, and Peter Swire, the President's 
  Review Group on Intelligence and Communications Technologies...     3
    prepared statement...........................................    76


Questions submitted by Senator Chuck Grassley for the President's 
  Review Group members...........................................    46


Responses of the President's Review Group members to questions 
  submitted by Senator Chuck Grassley............................    49

                       SUBMISSIONS FOR THE RECORD

Administrative Office of the United States Courts, Washington, 
  DC, John D. Bates, Director, January 13, 2014, letter..........    57
Amnesty International, New York, New York, Steven W. Hawkins, 
  Executive Director, January 9, 2014, letter....................    60
``Connecting the Dots: Analysis of the Effectiveness of Bulk 
  Phone Records Collection,'' Marshall Erwin, Research Fellow, 
  Hoover Institution, January 13, 2014, paper....................    62
``The Air of Unreality in NSA Reform,'' Michael B. Mukasey, The 
  Wall Street Journal, December 23, 2013, article................    73


Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria determined by the Committee, list:..............    76
Report of the President's Review Group on Intelligence and 
  Communication Technologies: http://www.whitehouse.gov/sites/
  default/files/docs/2013-12-12_rg_final_report.pdf..............    76
New America Foundation: ``Do NSA's Bulk Surveillance Programs 
  Stop Terrorists?'' by Peter Bergen, David Sterman, Emily 
  Schneider, and Bailey Cahall: http://www.newamerica.net/sites/
  Bergen_NAF_NSA%20Surveillance_1_0_0.pdf........................    76
Center for Security Policy, Occasional Paper Series: ``A Critique 
  of the Recommendations by the President's Review Group on 
  Intelligence and Communication Technologies'': http://
  NSA_report.pdf.................................................    76
``Comments on the Judiciary on Proposals Regarding the Foreign 
  Intelligence Surveillance Act'' by John D. Bates, Director of 
  the Administrative Office of the United States Courts: http://
  Enclosure-re-FISA.pdf..........................................    76


                       TUESDAY, JANUARY 14, 2014

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 
Klobuchar, Franken, Coons, Blumenthal, Grassley, Sessions, 
Graham, Lee, and Cruz.

                      THE STATE OF VERMONT

    Chairman Leahy. We have a roll call vote expected soon, but 
I wanted to get this started, and then when the vote occurs at 
some point, we can recess for a few minutes while we go and 
    But what is important about this hearing, we are going to 
hear from the President's Review Group on Intelligence and 
Communications Technologies. I was talking briefly with them in 
the back, and I know this is the first time they have appeared 
together publicly since their ground-breaking report was 
released last month, and I thank them, as I know the President 
has and others have, for taking the time, a lot of time, and 
effort to prepare this report. And I know it will be reflective 
of what the President is going to say later this week.
    The Review Group's report addresses some of the weightiest 
issues that are going to confront us in the coming years. We 
know what the technology is today. None of us can predict what 
it is going to be five to 10 years from now. And we also know 
that more and more data will be created by all of us as each 
day passes. And the questions are obvious: When should our 
government be allowed to collect and use that data? To what 
extent does the massive collection of data improve our national 
security? And what will the answers to these questions mean for 
privacy and free expression in the 21st century?
    All three branches of government are grappling with whether 
to let the NSA's dragnet collection of Americans' domestic 
phone records continue, and we are finally doing so with full 
public participation in that debate.
    I think Americans across the political spectrum want us to 
have this debate and want to have a clearer understanding of 
what is going on, so we are trying to get as much as we can 
into a public hearing. All of us on this Committee have had 
access, as have the five witnesses, to highly classified 
matters, but we are trying to go into as much as we can in open 
    The most critical factor in deciding whether to conduct any 
particular intelligence activity is an assessment of its value. 
This is particularly important in evaluating the phone records 
program conducted under Section 215 of the USA PATRIOT Act. As 
I have said repeatedly, I have concluded that this phone 
records program is not uniquely valuable enough to justify the 
massive intrusion on Americans' privacy.
    The Review Group likewise concluded that the program has 
not been essential, saying, and I will quote the Review Group: 
``The information contributed to terrorist investigations by 
the use of section 215 telephony metadata was not essential to 
preventing attacks and could readily have been obtained in a 
timely manner using conventional section 215 orders.'' And a 
few pages later, they said: ``Section 215 has generated 
relevant information in only a small number of cases, and there 
has been no instance in which NSA could say with confidence 
that the outcome would have been different without the section 
215 telephony metadata program.''
    The report explains that nothing in Section 215, as 
interpreted by the FISA Court, would preclude the mass 
collection of Americans' personal information beyond phone 
    The privacy implications of this sort of massive 
surveillance in the digital age cannot be overstated, and the 
Review Group's report provides some very valuable insights. The 
report appropriately questions whether we can continue to draw 
a rational line between metadata and content, and I think that 
is a critically important question given that many of our 
surveillance laws depend upon the distinction between the two.
    These insights are also important as we take up reforms to 
the National Security Letter (NSL) statutes. We do not talk as 
much about the National Security Letters, but using them, the 
FBI can obtain detailed information about individuals' 
communications records, financial transactions, and credit 
reports without judicial approval. But the thing that is 
troubling to many is that recipients of NSLs are subject to 
permanent gag orders. Senator Durbin and I have been fighting 
to impose additional safeguards on this controversial authority 
for years--to limit their use, to ensure that NSL gag orders 
comply with the First Amendment, and to provide recipients of 
NSLs with a meaningful opportunity for judicial review--
something that most Americans would assume already exists. And 
the Review Group report makes a series of important 
recommendations to change the way National Security Letters 
operate. We have not seen as much about these recommendations 
in the press. They have not generated as much attention, but 
they should. And I think that we have to look at them.
    The report also recommends creating an institutional Public 
Interest Advocate at the FISA Court. I strongly support that 
proposal. I am concerned that merely allowing for an amicus to 
participate at the FISA Court from time to time will neither 
improve the substantive outcome of the proceedings, nor rebuild 
public confidence in the process. And the stakes are high.
    When you think about it, we are really having a debate 
about what are Americans' fundamental relationship with their 
own government. The government exists for Americans, not the 
other way around, and we must debate whether the government 
should have the power to create massive data bases of 
information about its citizens. This is a feeling I would have 
no matter who is the head of our government.
    I believe strongly that we must impose stronger limits on 
government surveillance powers, and I am confident that most 
Vermonters agree with me. I believe most Americans agree with 
me. Having said that, we want to do it right.
    Now, on our panel today we will have Richard Clarke, who is 
the CEO of Good Harbor Security Risk Management. He is Chairman 
of the Board of Governors of the Middle East Institute. During 
his 30 years of public service, he was a senior White House 
National Security Adviser to Presidents George H.W. Bush, where 
I first met him, Bill Clinton, and George W. Bush.
    Then we will have Michael Morell, who recently retired as 
the Deputy Director of the Central Intelligence Agency after 
more than 30 years of service, and during that time he served 
as Acting Director. He earned his bachelor's degree from the 
University of Akron and a master's degree from Georgetown.
    And Geoffrey Stone currently serves as a professor at the 
University of Chicago Law School. He previously clerked for 
Supreme Court Justice William Brennan. And Professor Stone also 
served as dean of the University of Chicago Law School and a 
provost of the university.
    Cass Sunstein is currently a professor at Harvard Law 
School, previously served as Administrator of the Office of 
Information and Regulatory Affairs. He also served as an 
attorney adviser at the Office of Legal Counsel, Department of 
Justice, and was a law clerk to Supreme Court Justice Thurgood 
    And last, Professor Peter Swire is currently a professor at 
the Georgia Institute of Technology. He previously taught at 
Ohio State University's Moritz College of Law. In 2012, he was 
named to co-chair the Do Not Track standards process of the 
World Wide Web Consortium. He served as the Clinton 
administration's Chief Counsel for Privacy from 1999 to 2001.
    Now, gentlemen, did you have a particular way you wished to 
    Mr. Sunstein. After consultation with your staff, we have a 
very brief opening statement, if that is agreeable to you, Mr. 
    Chairman Leahy. Go ahead.


    Mr. Sunstein. Well, notwithstanding our diversity, which 
you just signaled, we began this process with great admiration 
and gratitude for the intelligence community, and we would like 
to start by honoring their extraordinary work in keeping the 
Nation safe.
    The risks associated with terrorism and associated threats 
are real, and one of our main goals has been to suggest reforms 
that are compatible with combating those risks.
    After extensive discussions and consultations during the 
last months, the gratitude and admiration that we had for the 
intelligence community has only increased as a result of 
interacting with them. We found the highest levels of 
professionalism. We found no evidence of political or religious 
targeting or targeting people because of political dissent. 
Their focus has genuinely been on national security.
    We are also grateful to them for their help and cooperation 
on a very tight time schedule, and they provided us with great 
access to information, making our report possible.
    We are also grateful to many organizations and 
individuals--over two dozen, in fact--who actually met with us 
were concerned with technology and innovation, with privacy, 
with civil liberties, with freedom of the press, with the 
rights of journalists, with our relations with other nations, 
friendly nations and some that are not particularly friendly, 
but ensuring that our relations are as cooperative as possible. 
Countless organizations and individuals have devoted energy and 
time to informing our work, and we are grateful to them.
    Much of our focus has been on maintaining the ability of 
the intelligence community to do what it needs to do, and we 
emphasize--if there is one thing to emphasize, it is this: that 
not one of the 46 recommendations in our report would, in our 
view, compromise or jeopardize that ability in any way.
    On the contrary, many of the recommendations would 
strengthen that ability explicitly by increasing safeguards 
against insider threats and by eliminating certain gaps in the 
law that make it hard to track people under circumstances in 
which we have reason to believe they do not wish to do us well.
    In terms of the reforms we favor, just three very general 
    The first is the immense importance of maintaining a free 
and open Internet, promoting both democratic and economic 
values. Across partisan lines there is a commitment to Internet 
freedom, and what is done in this domain, we believe, should be 
compatible with that commitment.
    The second is the importance of risk management, signaled, 
I think, Mr. Chairman, by your opening remarks--that is a 
central unifying theme--considering multiple risks, first and 
foremost, the risk to national security, but including also the 
risk to public trust, risk to privacy, risk to economic values, 
and risk to democratic self-governance. So a major task going 
forward, what our report tries to thread a needle on, is try to 
ensure a full set of risks are taken into account and that we 
are not optimizing only along one dimension.
    The third point is the importance of accountability, which 
is a unifying theme for our 46 recommendations--accountability 
to senior-level policy officials; accountability to the legal 
system, to Congress, and this Committee through increased 
transparency and disclosure; and above all to the American 
people through transparency and disclosure. And I should 
emphasize that one form of accountability includes steps that 
would help increase public trust not just within the United 
States but throughout the world.
    This is a diverse group, as noted. We reached all of our 
recommendations--and this is a bit of an upset--by agreement. 
There are no dissents. There was no horse trading, and there 
was no compromising. There are 46----
    Chairman Leahy. You would never make it in the Senate.
    Mr. Sunstein. There are 46 recommendations. If my 
arithmetic is right, we have 230 votes. That is, all five of us 
are behind all 46 recommendations.
    No team bats a thousand or even comes close, and our 
transmittal letter makes clear to the intelligence community, 
to this Committee, to the American people that we offer our 
recommendations with a great deal of humility and as a mere 
part of a process, prominently including the deliberations and 
judgments of this Committee.
    We look forward to your questions.
    [The prepared statement of the President's Review Group 
appears as a submission for the record.]
    Chairman Leahy. Well, thank you very much, and I noticed 
that in the comment I made, I think a couple things are 
extraordinary here: one, that you did reach such consensus, and 
I wish we could reach the same kind of consensus in the 
Senate--on many things we do, but not enough. And, second, your 
comments about the professionalism of our intelligence 
community, the men and women in our various intelligence 
communities, I totally agree with you. As Mr. Morell knows, 
without going into the subject of some of our closed-door 
briefings, he has heard both Republicans and Democrats praise 
the work on some of the things he has had to bring before us, 
some very critical matters. And I have spent enough time with 
station chiefs around the world in different places and realize 
how important the work that they all do is.
    Now, when the bulk phone records program was made public 
last year, there were some who immediately began arguing that 
the program was critical to national security. They cited 54 
terrorist plots being thwarted. Now, you have had reason to 
review those 54 examples, as I have. As I read the report, it 
reaches the same conclusion that I and others here did: that 
the Section 215 program contributed to only a few of those 
cases and was not essential to preventing any terrorist 
    I think it is also important to look at another thing we 
keep hearing--that somehow if this program had been in place 
before 9/11, it could have prevented that.
    Now, Mr. Clarke, you were a senior counterterrorism 
official at the time of those attacks. Would the bulk phone 
records program have prevented 9/11?
    Mr. Clarke. Senator, I think it is impossible to go back 
and reconstruct history. I think while ``what if'' history is 
interesting academically, it is very difficult to say with 
accuracy if one fact had been changed, that the outcome would 
have been significantly different.
    I think we can say this: that if the information that the 
federal agencies had at the time had been shared among the 
agencies, then one of them, the FBI, could have gone to the 
FISA Court and could have, in a very timely manner, gotten a 
warrant to monitor the appropriate telephones. They did not 
because they were unaware of the information that existed 
elsewhere in the government at the time. But there was a period 
of over two years where that information was available, so it 
would have been possible, in a very timely manner, to get a 
warrant from the FISA Court.
    Chairman Leahy. Wasn't that one of the things that Senator 
Graham and his review committee found, that was the sharing?
    Mr. Clarke. That is exactly right. The Joint Committee, the 
two Intelligence Committees of the House and Senate, found that 
the information was in the government at the time; it just was 
not shared.
    Chairman Leahy. Now, I raised the issue of National 
Security Letters, or NSLs, and as you know, and for those who 
are not familiar, they permit the government to obtain certain 
communications and financial and credit report records without 
a court order. Also, as I raised, the FBI can impose a 
virtually permanent gag order on NSL recipients. A number of us 
have been trying to reform that. Your recommendations on NSLs 
have not had as much attention as other topics covered by the 
report, but I think they are just as important.
    So, Professor Swire, how did the Review Group arrive at its 
conclusions regarding NSLs?
    Mr. Swire. Thank you, Mr. Chairman. Well, we arrived at 
it--the group amongst us includes three law professors, so on 
legal matters we were particularly involved. We went to the 
FBI, and we interviewed FBI counsel in detail. We also amongst 
us had worked quite a bit on issues related to NSLs previously.
    Based on that, one of the things we focused on was the so-
called gag orders or nondisclosure orders. In the criminal 
world, when there is an organized crime investigation, there 
are often nondisclosure orders on the order of 45 or 60 days. 
We found out that they are either permanent or come up for 
review for the first time in 50 years under current law for 
NSLs, and that is very, very different from the way that grand 
jury subpoenas or investigations on the criminal side happen. 
And so that lack of disclosure and the long, long period of 
secrecy is certainly one thing we were concerned about.
    Chairman Leahy. Well, doesn't that create a real problem in 
some cases for the person receiving the NSL, the gag order?
    Mr. Swire. Well, so it poses problems for the email 
providers, phone companies who receive the NSLs, where they are 
not in a position to describe what activities they are taking. 
That can lead to situations where, among other things, the 
actual facts might be quite reasonable if understood more 
broadly. Many of the providers have expressed concern that 
they, under this gag order, cannot reassure their customers 
about the good practices that exist, and that has been a 
concern for the industry, certainly.
    Chairman Leahy. Well, before I yield to Senator Grassley, 
Professor Sunstein, let me ask you. Some would say the NSLs are 
like a grand jury subpoena, and you can have the gag order, 
there is not judicial review and so on. Do you agree with that?
    Mr. Sunstein. There is an overlap, and the FBI has been 
driving that analogy. There is also another analogy, which is 
Section 215 itself, where we recommend a certain process that 
is more consistent with the normal one for getting access to 
people's records. We think that if 215 has the structure that 
it should, then the National Security Letter should follow the 
same structure, that the separation between them is extremely 
hard to justify.
    There is a certain analogy to the administrative subpoena. 
There is a question of breadth and scope with respect to 
National Security Letters, and we think that given the 
emergency exception that, of course, there would be, that to 
treat the National Security Letter like a 215 record seeking 
would not compromise any national security goal.
    Chairman Leahy. Thank you, and I thank Senator Grassley for 
letting me ask just one more question.
    I will say this to Mr. Morell. We have heard some 
government officials talk about the Section 215 program; they 
say we should not--Americans should not--be concerned about it 
because the phone records the NSA obtains are just metadata and 
not particularly sensitive. The Review Group said there were 
some risks posed by the government obtaining massive amounts of 
metadata. Could you just elaborate on that a little bit?
    Mr. Morell. Well, I will say one of the things that I 
learned in this process, that I came to realize in this 
process, Mr. Chairman, is that there is quite a bit of content 
in metadata. When you have the records of the phone calls that 
a particular individual made, you can learn an awful lot about 
that person, and that is one of the things that struck me. So 
there is not, in my mind, a sharp distinction between metadata 
and content. It is more of a continuum.
    Chairman Leahy. In fact, in the New York Times op-ed, the 
five of you wrote, ``The government should end its domestic 
program for storing bulk telephone metadata. The current 
program creates potential risks to public trust, personal 
privacy, and civil liberty.'' And, of course, the concern I 
have had and some others have had, no matter who is President 
or who is the head of these agencies, we do not want the 
temptation in there to misuse it.
    Senator Grassley, thank you for coming over, and I would 
note that Senators have been joining us. I think we were all 
told there was going to be a vote at 2:30, and apparently that 
has not happened. If we keep looking over your head, we are 
looking at those little white dots up on the clock to see when 
the next one might be.
    Senator Grassley, go ahead.

                       THE STATE OF IOWA

    Senator Grassley. The Chairman just explained what I wanted 
to explain, that you folks may not think this is a very 
important hearing, but it is a very important hearing, but you 
may not conclude that since other Members are not here. But we 
were all told that there was going to be a vote at 2:30.
    Before I ask questions, I have an opportunity to give an 
opening statement. I thank all of you for being here and for 
your work on the Committee.
    This is the latest in a series of hearings on government 
surveillance authorities that our Committee has held. The NSA 
continues to be of great concern to my constituents and many 
across our country.
    The most important responsibility of government is to 
protect our national security, while at the same time 
preserving our civil liberties. This is a responsibility that 
is quite hard to meet. Rapid changes in technology are making 
our enemies more lethal, our world more interconnected, and our 
privacy more subject to possible intrusion.
    Under these circumstances, it is useful to hear a variety 
of perspectives, including from those outside government, and I 
thank the members of the Review Group for your service.
    Some of the conclusions in the Review Group's report may 
help clarify the issues before us as we consider possible 
    First, according to the report, ``Although recent 
disclosures and commentary have created the impression in some 
quarters that NSA surveillance is indiscriminate and pervasive 
across the globe, that is not the case.'' Then the report 
concludes, I quote again, ``We have not uncovered any official 
efforts to suppress dissent or any intent to intrude into 
people's private lives without legal justification.''
    None of this means that the potential for abuse of these 
authorities should not concern us--it should--or that the NSA 
has not made serious mistakes or that the law in this area 
could not be improved. Indeed, there is a place for additional 
transparency, safeguards, and oversight. But these conclusions 
are helpful in clarifying the issues.
    Second, the report recommends that ``The national security 
of the United States depends on the continued capacity of NSA 
and other agencies to collect essential information. In 
considering proposals for reform, now and for the future, 
policymakers should avoid the risk of overreaction and take 
care in making changes that could undermine the capabilities of 
the Intelligence Community.'' And that is very good advice, 
    One recommendation that may reflect this advice is the 
Review Group's proposal to preserve the government's 
controversial ability to query telephone metadata, but with 
some changes.
    One of those recommended changes is that private entities 
hold the metadata. This is an interesting idea perhaps worth 
investigating. But I think it is legitimate to have concern 
that it may create as many privacy problems as it solves. 
Indeed, private companies seem to be allowing their customers' 
information to be hacked on what seems to be a daily basis.
    Just as importantly, I am concerned that in other instances 
the Review Group may not have followed its own advice. Some of 
its other recommendations may seriously threaten our national 
security, if adopted collectively.
    For example, some of the recommendations in the report 
appear to make it more difficult to investigate a terrorist 
than a common criminal. Some appear to extend the rights of 
Americans to foreigners without good reason. And some appear to 
rebuild the wall between our law enforcement and national 
security communities that existed before September 11, 2001. Of 
course, that wall helped contribute to our inability to detect 
and thwart the attacks on that day, and thousands died as a 
    I do not mean to criticize the effort or intentions of the 
Review Group. But I am concerned that the group was given such 
a relatively short time to do their work. As a result, for 
example, I understand the group spent only one day at the NSA. 
And if I am wrong on that, you can correct that.
    I am also concerned that the group lacked some important 
perspectives. For example, none of the members has experience 
in supervising terrorism investigations at the Department of 
Justice or the FBI.
    I am concerned that the group produced a large number of 
recommendations, but did not develop some of them fully.
    As the Review Group wrote, its recommendations ``will 
require careful assessment by a wide range of relevant 
officials, with close reference to the likely consequences.'' 
That is pretty good advice, and I look forward to beginning 
that process today.
    Now I have a question for Dr. Morell. After the Review 
Group issued its report, you wrote an opinion piece in which 
you emphasized that the report recommends changing the 
telephony metadata program rather than ending it. You wrote, 
``Had the program been in place more than a decade ago, it 
would likely have prevented the September 11th terror 
attacks.'' Further, you wrote that the program ``has the 
potential to prevent the next 9/11.''
    So my question: I would like to have you expand upon why 
you hold those two opinions. And also, can you give us any 
specific examples of how the metadata program was valuable to 
you when you headed the CIA?
    Chairman Leahy. Press the button.
    Mr. Morell. Senator, let me first say that the reason I 
wrote the op-ed, particularly with regard to 215, is I felt 
that there was a misperception on the part of the media and 
much of the American public that the Review Group had indeed 
recommended an end to the program. And we did not do that. We 
recommended a change in approach, and that was the main reason 
I wrote the op-ed, is to make that clear.
    It is absolutely true that the 215 program has not played a 
significant role in disrupting any terrorist attacks to this 
point. That is a different statement than saying the program is 
not important. The program, as I said in the op-ed, only has to 
be successful once to be invaluable, and it does carry the 
potential going forward to prevent a catastrophic attack on the 
United States. And that was another point I was trying to make, 
and I believe it.
    Another point I will make, Mr. Chairman, is that--and we 
talked about this as a group--there is value in a negative 
query of the 215 data. So if you have a terrorist overseas who 
is talking about an attack and you do not know where that 
attack is going to be, it is invaluable to query the 215 data 
base, and if the answer is that terrorist does not have any 
contacts in the United States, that gives you some reassurance 
that the attack will not be here. We talk about that in the 
report, and I think that is another important point.
    Senator Grassley. Thank you. For anyone, I have a question, 
but let me read a lead-in.
    One of the changes that your report recommends concerning 
the telephony metadata program is that a private third party or 
parties hold the metadata instead of the NSA. But we have seen 
many recent instances where companies like Target and Neiman 
Marcus have been unable to protect private data. My 
constituents would be very concerned about privacy issues. So 
any one of you, but hopefully not all of you because I want to 
ask one more question, what was the group's assessment of the 
privacy risks associate with your recommendation that the 
metadata be stored in private hands? And did you speak to the 
telephone companies to explore whether they are willing or able 
to hold the metadata?
    Mr. Stone. We did speak with the telephone companies about 
that, and they obviously would rather not hold that data. Our 
judgment about the government holding the data is that the 
primary danger of the 215 telephony metadata program is not if 
it is used only in the way in which its use is authorized, but 
that it leaves sitting out there a huge amount of information, 
personal information about Americans that could be abused in 
awful ways. And the question is how to avoid that potential 
    One of the ways we decided it makes sense to avoid that is 
to take it out of the hands of government. The concern of the 
Fourth Amendment, the concern of our constitutional history is 
that government can do far more harm if it abuses information 
in its possession than private entities can. And, therefore, 
our judgment was that the government should not have possession 
of this information because if it does, there is always the 
possibility of someone coming along down the road, seeing this 
as a great opportunity to get political dirt on individuals, on 
their activities, on their organizations, their associations, 
and that that is a danger that we want to avoid.
    On the other hand, we do believe that the data is useful, 
and the idea was to find a way that would enable the government 
to have access to the data but minimize the risk that it could 
be abused in that way. And our judgment was that keeping it in 
private hands would still pose, as you say, privacy risks, but 
the privacy risks would be of a very different order, and they 
would be much less in the sense of the kind of abuse that 
historically we are most concerned about with the government.
    Senator Grassley. This will be my last question. One of the 
things that I am concerned about is that we not rebuild the 
wall that exists between our law enforcement and national 
security communities before September 11th. Part of that is 
making sure that we do not make it harder to investigate a 
terrorism case and any other type of crime. FBI Director Comey 
weighed in last week on reforms you proposed to national 
security. He called these letters ``a very important tool that 
is essential'' to the work of the FBI. He also stated, ``What 
worries me about the suggestion that we impose a judicial 
process on NSLs is that it would actually make it harder for us 
to do national security investigations than bank fraud 
    Question to Professor Swire--maybe somebody else more 
appropriate, but whoever--why would we want to make it harder 
for agents and prosecutors to investigate espionage and 
terrorism than other crimes? Did you consult with Director 
Comey personally about these recommendations? And, finally, 
aren't your recommendations in this area almost exactly the 
same as what you--I assume Professor Swire--recommended to this 
Committee back in 2007, long before the recent controversy 
about NSA?
    Mr. Swire. Well, law professors are always thrilled if 
someone reads their articles from several years ago, so it is 
true that I wrote on FISA prior to that. It is also true that 
we went to the FBI, that the FBI lawyers came to us, and that 
we met with Mr. Comey last week to discuss these issues. So we 
have had quite extensive discussions.
    In terms of the comparisons with criminal, any criminal 
investigation, of course, you have all the criminal powers, and 
then you may also have the NSL and foreign intelligence 
authorities. There are some differences. One difference is that 
in the criminal investigations, if there was some mistake or 
problem, that comes to light, and there is a check and balance 
there. If you have 50 years of secrecy, we never find out what 
the government is doing. And so because of that risk of long-
running secrecy and not knowing what it is, some extra 
safeguards are appropriate for these secret foreign 
intelligence things. That is at least one difference that 
    Senator Grassley. Okay.
    Chairman Leahy. Thank you. I am going to yield to the Chair 
of the Senate Intelligence Committee, Senator Feinstein, but 
before I do that, I just want to place in the record--and I 
meant to have done this earlier--a detailed report published by 
the New America Foundation that concludes the executive branch 
claims about the effectiveness of Section 215 phone records are 
overblown, even misleading; and then a new report by the Hoover 
Institution researcher concluding that Section 215 phone 
records are only of marginal value. Without objection, those 
will be placed in the record.
    [The information referred to appears as a submission for 
the record.]
    Chairman Leahy. Again, I want to say how much we appreciate 
that Senator Feinstein is a Member of this Committee with her 
expertise, and the other Members who also serve on the 
Intelligence Committee in both parties. Senator Feinstein.
    Senator Feinstein. Well, thank you very much, Mr. Chairman. 
I appreciate those comments.
    I would like to submit a statement for the record, if I 
    Chairman Leahy. Sure.
    Senator Grassley. Can I, at the same time, ask for 
something to be put in the record?
    Senator Feinstein. Absolutely.
    Chairman Leahy. Without objection, the items by both 
Senator Feinstein and Senator Grassley will be made part of the 
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    [The information referred to appears as a submission for 
the record.]
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Mr. Chairman, the Intelligence Committee--and I think 
virtually every Member was there, perhaps missing one--had the 
opportunity of talking to the professorial element of this 
Committee last week. The intelligence element was not there, 
and we very much regret that Mr. Clarke and Mr. Morell were not 
there. But, Mr. Morell, particularly for your ears, I think 
what we thought in reading the report and in listening to the 
testimony was that the group did not want the program to 
continue. And then I read your op-ed piece in the Wall Street 
Journal--excuse me, in the Washington Post, and I would just 
like to read parts of it and see if the Committee agrees, if I 
    ``Several news outlets have reported that the review group 
had called for an end to the program, but we did not do that. 
We called for a change in approach rather than a wholesale 
rejection. To better protect the privacy and civil liberties of 
Americans--key values of our Republic--we recommended that the 
Government no longer hold the data and that it be required to 
obtain an individual court order''--which I want to ask you 
about--``for each search. But make no mistake: The review group 
reaffirmed that the program should remain a tool of our 
Government in the fight against terrorism.''
    Then you go on: ``Another misperception involved the review 
group's view of the efficacy of Section 215; many commentators 
said it found no value in the program. The report accurately 
said that the program has not been `essential' ''--and I want 
to also talk about the word ``essential''--`` `to preventing 
attacks' since its creation. But that is not the same thing as 
saying the program is not important to national security, which 
is why we did not recommend its elimination.''
    Mr. Swire, do you agree with that, yes or no?
    Mr. Swire. There are about 14 things there. I am sorry, 
Senator, but I was trying to write them down: yes on going to 
the private sector and keeping the program; yes on the court 
order for each search; and the last part was not that it--that 
it is useful to have the information from the program, roughly 
    Senator Feinstein. Yes, for national security.
    Mr. Swire. Yes, I agree with that also, yes.
    Senator Feinstein. Okay. Mr. Sunstein.
    Mr. Sunstein. I agree with every word.
    Senator Feinstein. Professor Stone.
    Mr. Stone. I agree. I think it is important to understand 
what the value is. The value is not demonstrable from specific 
cases that have arisen in the past that suggest that but for 
215 we would not have been able to thwart any particular 
terrorist attack. The value would be primarily--it is a needle 
in a haystack problem, that it is possible that in the future 
there will be an instance in which 215, if it exists, will 
enable us to prevent a major attack which otherwise we could 
not prevent. Our judgment was it does have value in that way.
    Senator Feinstein. Thank you.
    Mr. Clarke, welcome. It is good to see you again. Yes or 
    Mr. Clarke. Senator, I think we are, surprisingly, all in 
    Senator Feinstein. Good. That is what I wanted to know. 
Thank you very much.
    Now, the word ``essential,'' this is a word that is debated 
as to its meaning. We have one recent court decision out of the 
Southern District of New York, and I would like to read from 
page 48 of that opinion. ``The effectiveness of bulk telephony 
metadata collection cannot be seriously disputed. Offering 
examples is a dangerous stratagem for the Government because it 
discloses means and methods of intelligence gathering. Such 
disclosures can only educate America's enemies. Nevertheless, 
the Government has acknowledged several successes in 
congressional testimony and in declarations that are part of 
the record in this case. In this court's view, they offer ample 
justification.'' And then it goes into al Qaeda-associated 
terrorists in Pakistan, connected with an unknown person in the 
United States, the Najibullah Zazi case, and particularly where 
215, according to the court, came in was that NSA was able to 
provide a previously unknown number of one of the co-
conspirators, Adis Medunjanin.
    The next one is January 2009, an extremist in Yemen, a 
connection with Khalid Ozani in Texas, NSA notified the FBI, 
which discovered a nascent plot to attack the New York Stock 
Exchange. Using a 215 order, NSA queried telephony metadata to 
identify potential connections. Three defendants were convicted 
of terrorism offenses.
    And the fourth--again, this is a court opinion--in October 
2009, while monitoring an al Qaeda-affiliated terrorist, the 
NSA discovered David Headley, who is a major figure, was 
working on a plot to bomb a Danish newspaper office that had 
published cartoons depicting the prophet Muhammad. And it goes 
on from there.
    So the word ``essential,'' I think is a word that is often 
debated. You also say that it was likely that with al-Mihdhar 
this could have prevented 9/11 and it could quite possibly 
prevent another 9/11. Am I correct about that, Mr. Morell?
    Mr. Morell. We as a group, ma'am, did not----
    Senator Feinstein. No. I am asking you what you said in the 
    Mr. Morell. Yes, I said that. But we never talked about 
that as a group, about 9/11. We never came to a judgment about 
that as a group.
    Senator Feinstein. Okay. So it was just your opinion.
    Mr. Morell. That was my opinion.
    Senator Feinstein. Now, let me ask you another. General 
Alexander testified to us that in 2009 the NSA did, in fact, go 
to the FISA Court and found that it took nine days average to 
be able to collect the information that was necessary. Are you 
aware of that?
    Mr. Morell. No, ma'am.
    Senator Feinstein. Well, that is according to testimony by 
General Alexander. We also know--my time is up? Is that what 
you are saying to me?
    Chairman Leahy. Yes. Go ahead and finish your question.
    Senator Feinstein. Would you just let me finish?
    Chairman Leahy. Of course.
    Senator Feinstein. I really appreciate that. Thank you.
    He can be very strict.
    This was used after the fact in the Boston bombing, but 
here is the difference: The Boston--and they used emergency 
powers, and they were able to get information quickly. This is 
used to prevent an attack. So those of us that see it important 
to prevent another attack--I do not need to tell you. Terrorism 
is up, groups have metastasized. We know they will come after 
us if they can. There is a real litany here of fact. So the 
question comes: Do you not find value, substantial value, in 
being able to prevent this attack?
    Mr. Morell. So I find substantial value in any tool that 
helps us prevent attacks. I believe that 215 carries the 
potential to prevent attacks, and that is why I think it needs 
to continue. But one of the important issues, I think, is the 
question of efficacy for us did not really impact our view on 
the change in approach to the program. We do not believe that 
we are going to add a substantial burden to the government by 
making the changes we are suggesting. If something cannot be 
done quicker than nine days, then they need to make some 
changes to make that happen.
    We also wrote into our report an emergency provision so 
that in an emergency situation, when the intelligence community 
knows they need to move quickly, they will be able to query the 
data without a court order, going to the court after the fact.
    Senator Feinstein. Thank you very much.
    Chairman Leahy. And I should note--you were not here for 
this part of the testimony. When you talk about 9/11, one of 
the biggest problems there is that we had the information, it 
would have prevented 9/11. But the people with it did not 
communicate as they should have, and I recall some of the 
information we had finally being translated a week or two after 
the event.
    Senator Lee.
    Senator Lee. I am told that my distinguished colleague from 
South Carolina, a senior to me, needs to go somewhere, so in 
deference to the gentleman from South Carolina, I am going to 
let him go first.
    Chairman Leahy. Do you really want to give him that much 
    Senator Lee. Well, he has been nice.
    Chairman Leahy. Can we vote on it?
    Senator Graham. I have always let you talk. And I think 
your air force base should be bigger.
    Chairman Leahy. Senator Graham, please go next.
    Senator Graham. Thank you.
    Chairman Leahy. And just so we will know, we will then go 
to Senator Blumenthal, then back to Senator Lee, then back to 
Senator Franken, then to Senator Cruz. Senator Graham.
    Senator Graham. Let us pick up on what the Chairman said. 
You wrote an op-ed----
    Chairman Leahy. And turn your microphone on.
    Senator Graham. Okay. There we go. Michael, you wrote an 
op-ed piece opining that you think that this technology, if it 
had been in place before 9/11, could have helped prevent the 
attack. That is your personal opinion.
    Mr. Morell. Yes, sir.
    Senator Graham. How many people agree with that? Raise your 
hand if you do.
    Mr. Sunstein. I would say, Senator, that----
    Senator Graham. That is not raising your hand.
    Mr. Sunstein. I think the reason we are not raising our 
hand is not that we disagree with Michael Morell, but that we 
are not specialists in the details of 9/11.
    Senator Graham. Fair enough.
    Mr. Sunstein. We did not investigate.
    Senator Feinstein. They said they did when I read it. They 
just said they did when I read it.
    Senator Graham. Well, we will just go with what you said.
    Mr. Sunstein. We agreed with the quotation Senator 
Feinstein read from Mr. Morell's Washington Post op-ed. On the 
9/11 issue in particular, we did not discuss that as a group.
    Senator Graham. Okay. Well, we will take what she said. 
They agreed with you. That is good.
    The bottom line is let us get way at the 30,000-foot level. 
What are we trying to do? Do you believe as a group we are at 
war with radical Islam?
    Mr. Morell. I do.
    Senator Graham. How many of you believe we are at war?
    Mr. Clarke. I think we all do, Senator.
    Senator Graham. Okay. The difference between fighting a 
crime and a war--there are fundamental differences. Do you 
agree with that? Intelligence gathering is a very important 
tool in fighting a war. Do you all agree with that?
    Mr. Sunstein. That is----
    Senator Graham. Prevention is important in crime----
    Mr. Sunstein. That is a theme of our report.
    Senator Graham. Yes, so I guess what I am trying to let the 
Nation know is that what you all gentlemen are trying to do is 
we are trying to find a way to fight a war within our values, 
and this is an unusual situation. There is no capital to 
conquer; there is no navy to sink; there is no air force to 
shoot down. We are fighting an ideology. And if we all believe 
that the enemy does not mind dying--as a matter of fact, that 
is first prize for these guys, is to die--we have got to hit 
them before they hit us. Is that generally the thought process 
here, we have got to identify the attack before it happens, 
they will not be deterred by death?
    Mr. Sunstein. That sounds fair, and some version of that is 
in our report.
    Senator Graham. Okay. Fair enough. Now, Anwar al-Awlaki, he 
is deceased, but he was an American citizen in Yemen. How did 
we miss the fact that a major in the United States Army was 
communicating with him? I mean, we have got all these programs, 
and everybody is wanting to revisit these programs, which I 
totally understand. But we have got a major in the United 
States Army that wound up killing 199 people, I think, that was 
openly talking for the whole world to see to one of the chief 
terrorist suspects in the world in Yemen. How did we miss that? 
And what can we do to make sure we do not miss that in the 
    Mr. Stone. I do not quite understand, to be honest, the 
thrust of the question. I mean, our recommendations do not take 
away the ability of the government to use the bulk telephony 
metadata program. We shift where it stays, whether that is from 
the government or to private sources. We say a court order 
should be necessary. But as we made very clear in the report, 
we do believe it is critical to protect the national security 
of the United States, and we believe that our recommendations 
are consistent----
    Senator Graham. The fact that nobody can answer the 
question--I understand reforming the program and trying to be 
more sensitive to privacy concerns. But no one has really 
talked much about the fact that you had a major in the United 
States Army on active duty openly communicating with a known 
terrorist, following his every word, and eventually got 
radicalized and killed 19----
    Mr. Swire. Senator, if I--so we do have a section in the 
report about military and war that talks about how the same 
Internet, the same hardware, the same software that is used in 
Afghanistan and Iraq these days are used back home. And so when 
it comes to the surveillance on hardware and software over 
there, it is the same hardware and software here. And that did 
not used to be true to nearly the same extent in previous wars. 
So how we build an Internet at home and an Internet for 
warfighting is a challenge we talk about in the report.
    Senator Graham. Let us just use the Anwar al-Awlaki 
analogy. If he is calling someone--we got his cell phone, and 
he is dialing someone in the United States, calling someone, 
the program after the changes you are recommending, can it 
still pick that up?
    Mr. Swire. Yes.
    Mr. Morell. Yes.
    Senator Graham. Okay. Would a court order be necessary?
    Mr. Clarke. Unless there was an emergency, yes.
    Senator Graham. Well, do you agree with me that you do not 
need a court order to surveil the enemy in a time of war?
    Mr. Clarke. Overseas, yes.
    Mr. Sunstein. Not in the United States.
    Senator Graham. Do you agree with me he would be an enemy 
combatant, that he would fit the definition of an ``enemy 
combatant'' ?
    Mr. Sunstein. We would probably want to look at that, you 
know, the legal authorities on that. I do not think we disagree 
with it, but the point of a legal view----
    Senator Graham. Well, the main point is that you believe we 
can still pick up that phone call?
    Mr. Sunstein. Okay. Well, we--yes, we distinguish----
    Senator Graham. Okay. That is all I wanted. That is good.
    Now, if somebody is calling him from the United States, can 
we pick up that phone call and do something about it?
    Mr. Swire. If either end is overseas, it is not 215 that is 
an issue. It is 702 or the Executive order.
    Senator Graham. Most Americans could care less about the 
titles. They just want to know if somebody in the----
    Mr. Swire. But it is relevant to our recommendations, sir, 
because on 702, which is the one side is overseas, we keep the 
same structure basically it has today, and we are not----
    Senator Graham. Okay. So can you reassure America that if 
somebody in the United States is calling a known terrorist in 
Yemen, we can pick that up and do something about it?
    Mr. Clarke. Yes.
    Senator Graham. And at the end of the day--my time is up--
isn't that what we are trying to do? Aren't we trying to find 
out who is talking to who when the person, one of the people 
doing the talking is somebody we are really worried about 
attacking the Nation, and we are really not trying to do 
anything more than that?
    Mr. Sunstein. Yes, Senator, and I think that is a very 
important point because it applies both domestically, where 
there are concerns about monitoring of American citizens that 
do not fit our aims, and also internationally, where our focus 
is on the source of situations you are discussing and not on 
picking up people's private communications.
    Senator Graham. Thank you all for your service to our 
    Chairman Leahy. And I appreciate you knowing the difference 
between the 702 and the 215, of course, and I would say to my 
friend, Senator Graham, we have to look at what are adequate 
safeguards, especially when we are dealing with an agency that 
did not have adequate enough safeguards to keep a subcontractor 
from stealing millions and millions and millions of files and 
he is still out today after spending millions of dollars, do 
not know all that he did steal. And I just do not want to get 
lured by all the technology we have, lured into complacency. We 
saw the same thing--and I do not mean to be picking on just the 
NSA, when the State Department and the military put all kinds 
of files where a private first class could go in and download 
it all on a Lady Gaga CD and then cause, as we all know, 
enormous difficulties for the United States when these highly 
classified cables from our Ambassadors were made public.
    Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. Thank you for 
holding this hearing. Thank you to each of you for your very 
impressive and extraordinarily important work. I think you have 
elevated and provided credibility to a very specific and very 
significant proposal that advanced the reform effort in our 
intelligence-gathering operations. And, you know, Senator 
Graham referred to the present effort to counter terrorism as a 
``war.'' There is a saying--it is an adage. I believe it is 
attributed to the Romans. My classic education is not good 
enough to know. But the saying is, ``In war, law is the first 
casualty.'' And you have provided a really profoundly important 
service in making sure that we do not have law as the casualty. 
And as you say in your report--it is the first principle you 
state--``The U.S. Government must protect at once two different 
forms of security: national security and personal privacy.'' 
And there is a reason why courts matter, why the Founders of 
our Nation thought they mattered. They wanted to prevent 
general warrants and secret courts, like the Star Chamber. And 
it was one of the reasons they rebelled against it.
    And so my questions focus on the Court, and I have advanced 
and proposed the constitutional advocate, the public interest 
advocate, however you want to label it, that would be 
independence, institutionalized to assure that there is an 
adversarial proceeding whenever the advocate thought it was 
necessary, not on an ad hoc basis, not when the Court thought 
it might be useful. But courts benefit from hearing both sides 
and from having the advocate decide that another side should be 
    And I would like to hear from you, because we have heard 
the contrary point of view that it should be an amicus brief, 
as it has been sometimes called, or some other kind of ad hoc 
proceeding, and maybe beginning, Professor Sunstein, with you, 
stating on behalf of the panel why you chose this structure, 
because obviously the President is going to have to make a 
decision as to whether to adopt that idea, and we as a panel 
and the Senate will have to deliberate as well.
    Mr. Sunstein. Well, history is relevant here. There was an 
understanding when the Court was created that it would be 
basically dealing with issues of fact, like whether a warrant 
was justified, not with large issues of law and policy. And as 
the system has developed over the years, as you are well aware, 
Senator, often the judges are being asked to decide those large 
questions. And so an adversary proceeding seems warranted in a 
setting of that kind.
    We are well aware that some judges for whom we have a lot 
of admiration on the Court believe that the judge ought to be 
in charge of deciding when the public interest advocate is 
    We think that is not consistent with our traditions. 
Normally it is not the case that the judge gets to decide this 
interest gets a lawyer. So we think to have someone who is a 
dedicated officer designed to protect privacy and liberty 
interests is a very important safeguard.
    Senator Blumenthal. And the provision of an adversarial 
proceeding such as you have described, which reflects the 
change in the role of the Court--I think that is a very 
important point--would not necessarily delay it or imperil 
security if there were preclearance and if warrants were 
granted and then reviewed afterward. In other words, we all 
know in the ordinary criminal process some of us have knocked 
on a judge's door literally in the middle of the night if we 
thought it was necessary to get a warrant. And the same 
principle applies here, does it not?
    Mr. Sunstein. Yes, that is very important. So Senator 
Feinstein and Senator Graham rightly draw attention to the 
immediacy of certain threats, the fact that something is coming 
in a way where you need information fast, and as you say, it is 
consistent with our traditions to accommodate emergency 
    Senator Blumenthal. And in the short time I have remaining, 
perhaps I could ask you to elaborate a little bit on the 
reasons why you recommended a change in the method of 
selection, which I agree is very, very important to the trust 
and confidence in this process. And I think one of the reasons 
for reforming the whole system is to preserve and enhance trust 
and confidence of the American people that we are doing both 
forms of security here, national security and personal privacy.
    Mr. Sunstein. Yes, I think it was Justice Frankfurter--I 
may have the reference wrong--who emphasized both the 
importance of doing justice and the appearance that justice is 
done, and that is connected with your point.
    We also think, particularly in the context of the selection 
of the judges for the FISA Court, a little diversity is a good 
idea across Democratic and Republican appointees. And as the 
report makes clear, we have all the respect in the world for 
the Chief Justice and have, you know, nothing critical to say 
about him in this connection. But it just is the case that if 
10 of 11 come from one political party in terms of the 
appointing President, that is awkward, and so we would like to 
see some more diversity.
    Senator Blumenthal. And, again, it is in accord with the 
traditions of our judicial system that appearance and 
perception has to be served because of the immense and in many 
respects undemocratic powers that courts exert, undemocratic 
because we believe in elections generally, and here we have 
unelected FISA Court members operating in secret or other 
members of the judiciary operating in the open, but they too 
are unelected.
    And so I think that your point is very, very important, and 
I again thank you all for your service to our Nation.
    Thank you.
    Senator Feinstein [presiding]. Thank you very much, Senator 
    The Chairman of this Committee has asked that we recess for 
five minutes, and so without objection, we will recess for five 
    [Recess at 3:30 p.m. to 3:37 p.m.]
    Senator Lee [presiding]. It is rare that a freshman from 
the minority party gets to chair a Committee proceeding like 
this one, but, you know, who says the race goeth not to the 
    First of all, I really appreciate all of you coming here, 
and I appreciate your willingness to serve on the President's 
Review Group. The work that you have done has been very 
helpful, and I am confident that it will do a lot to frame this 
important discussion as we move forward.
    The importance of these issues cannot be overstated. One of 
the things that I liked that you pointed out in your report 
appears on page 15 wherein you pointed out an interesting 
coincidence, you might call it--my word, not yours--that the 
concept of security has dual meaning. On the one hand, it 
refers to the fact that one of the most important, fundamental, 
sacred obligations of government is to keep the people safe, to 
protect us from each other and to protect us from those outside 
of our country who would harm us. Security is one of the most 
important functions that the Federal Government has. And at the 
very same time, it refers to something different, it refers to 
something else that might appear to be in conflict with to 
create tension with that first concept, and that is the concept 
of security referred to in the Fourth Amendment, that we have 
the right under the Fourth Amendment to be secure, to be secure 
in our persons, houses, papers, and effects against 
unreasonable searches and seizures.
    Now, this concept of what that means to be secure in this 
second respect has, of course, changed over time. It has 
necessary changed as our technology has changed. But the 
fundamental principles underlying that concept of security must 
necessarily remain the same in order for us to remain a free 
society and in order for our constitutional protections to 
continue to be meaningful.
    One of the things that we have struggled with as a Congress 
and that we struggle with really as a country as a whole 
relates to the fact that where we keep our papers and what our 
papers are has changed, especially in the last few years. No 
longer do our papers consist exclusively of actual paper. What 
the founding generation would have thought of as papers often 
exists only in the ether, exists only in the electronic 
equivalence of ones and zeros. And those are not any longer 
stored exclusively on hard drives with a finite location that 
might be in our home. A lot of the time they exist only in a 
cloud somewhere. And yet these pieces of information, these 
papers or effects or whatever you want to call them, in many 
instances are things in which we have, or at least reasonably 
should have, an expectation of privacy that is reasonable, to 
say the very least.
    And so we have to figure out how best to balance these two 
sometimes conflicting interests associated with security. There 
are several ways in which this arises, but we have talked a 
little bit today about the collection of metadata and the fact 
that we have got an enormous amount of metadata that has been 
collected on potentially 300 million Americans.
    The government notes that it has in place a rigorous review 
process that must be followed before anyone accesses this data 
base containing metadata on basically every American. What 
concerns me about that is the fact that these are basically 
internal operating procedures. And so what is a policy today, 
which may well be followed religiously for all I know today, 
could change tomorrow. And I am willing to assume, for purposes 
of this discussion, that the men and women who work at the NSA 
have nothing but our best interests at heart. I am willing to 
assume that, at least for purposes of this discussion. That 
might not be the case a year from now or four years from now or 
10 years from now or 40 years from now.
    In fact, we have seen this movie before. We know how it 
ends. We know that eventually, if that much information remains 
in the hands of government for that long, it will eventually be 
abused. It will be manipulated for partisan and otherwise 
nefarious purposes. And we cannot let that happen.
    So let us start with Professor Stone. When we look at this, 
would this be something that you would describe a one of the 
most compelling arguments in favor of putting more robust 
restrictions in law so that they are not simply in the hands of 
people, however well intentioned they might be, within the NSA?
    Mr. Stone. Yes, I think this is--our primary concern with 
respect to the collection of metadata is not the actual use of 
the metadata in the ways in which it is authorized, but the 
risk that somewhere down the road, someone will figure out how 
to and want to misuse that data. And so we think safeguards are 
    I should also say I think the safeguards that are now in 
place internally are actually quite good. And they are 
rigorous, they are multifaceted. There are checks and balances. 
There are the Senate and House Intelligence Committees. There 
are Inspectors General, there is the Attorney General, the FISA 
Court. All are looking over this.
    But even so, our judgment is that it should be taken out of 
the hands of the government in terms of the holding of the 
data, and that reduces--it does not eliminate entirely but 
reduces substantially, we think, the potential for the data to 
be abused in the ways that you are talking about. And it is 
still a question of tradeoffs, because even there, there is 
always a risk. But our judgment is that is an important step 
toward reducing the risk on one side, while at the same time 
preserving the value of the data for national security 
    Senator Lee. I think that is right, and for that reason, 
Chairman Leahy and I and several of my other colleagues across 
the aisle have introduced legislation to try to reform this 
process in one form or another.
    If I can ask one follow-up on this, an additional follow-up 
on this, Mr. Chairman? Some have suggested that it would simply 
be infeasible, categorically infeasible ever to require a court 
order as a condition precedent for performing a query of the 
government data base. And let us assume, for purposes of this 
discussion, that the data set will remain--at least does remain 
for the time being in the possession of the government and that 
we are not going to move to a different system in which the 
government does not have possession.
    The argument frequently arises. You cannot possibly require 
any kind of a court order as a condition precedent for querying 
that data base, even where you have got U.S. citizens involved 
in the query because it would just take too much time.
    Do you know of any reason why that should necessarily be 
the case or why that would unavoidably be the case, why we 
could not get around that by perhaps creating additional FISA 
Court positions?
    Mr. Stone. We find that wholly unconvincing. Our view is 
that there are practical realities about it. If you are going 
to add the burdens to the FISA Court, you have got to add 
resources, you have got to add judges or magistrate judges, if 
necessary; but that there is no reason why the argument about 
getting a court order for a query of the metadata is any more 
impossible than it is to get a search warrant to search a home. 
Fundamentally, this is what we do all the time, and there are 
great protections in having judges oversee this, and there is 
no good reason why this should not be adopted in this context 
as well.
    Senator Lee. Thank you. Thank you, Professor.
    Thank you, Chairman.
    Chairman Leahy [presiding]. Thank you, Senator Lee.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, and thank you, 
gentlemen, for this report. I think it will be a real help as 
we work to improve our privacy and surveillance laws.
    On page 124 of your report, you wrote, ``A free people can 
govern themselves only if they have access to the information 
that they need to make wise judgments about public policy.'' I 
could not agree with you more, and right now the American 
people do not have the information that they need to make up 
their own minds about these programs.
    I have a bipartisan bill that would fix this, the 
Surveillance Transparency Act of 2013. It has the support of 14 
of my colleagues and the strong support of the business 
community, which has broadly endorsed the principle of 
transparency and has endorsed my bill specifically.
    When we met last year, late last year, when I submitted 
written comments to your group, I urged you to support the 
reforms in my bill, and I am pleased that your report endorses 
the same measures that are at the core of my bill. I am going 
to focus my questions on the transparency reforms that we agree 
    First, my question is on government transparency. Seven 
months after the Snowden leaks, the government has yet to 
publicly disclose even a rough estimate of how many people have 
had their information collected in the telephone metadata or 
PRISM programs. This is not an accident. Under current law, the 
American government does not have to do this.
    My bill would force the government to annually disclose an 
estimate of the number of people who have had their information 
collected by the NSA under each key surveillance authority. 
Your report supports this.
    You say that for key surveillance authorities, ``the 
government should, to the greatest extent possible, report 
publicly on the total number of requests made and the number of 
individuals whose records have been requested.''
    Why did you support this particular transparency reform? 
Mr. Sunstein, why don't you begin, and whoever else wants to 
comment, do so.
    Mr. Sunstein. Well, a theme of our report, consistent with 
your bill, is that sunlight is the best of disinfectants, as 
Justice Brandeis said, and that it is very important for the 
American people, unless there is a very strong national 
security justification on the other side, to get a sense of 
what their government is doing. So the first and foremost goal 
is about democratic self-government and a free society. That is 
one of the things that distinguishes our Nation from some 
others. And another idea to which you also referred has to do 
with economic interests, which should not be trivialized; that 
there are American companies who are at economic risk because 
it is thought that the American government is forcing them to 
turn over all sorts of stuff. It is just not true. Sunlight 
shows that the program is much narrower and targeted than some 
people fear.
    Senator Franken. And my bill does that, and I want to talk 
about that next. But any other comments on that?
    I am going to just continue to drill down on this first 
recommendation because it is different from what the 
administration has been saying and is saying. Your report calls 
for the government to say how many people have had their 
information collected. My bill calls for the government to say 
how many people have had their information collected. Yet last 
November, representatives from the Office of the Director of 
National Intelligence and the NSA came before the Subcommittee 
on Privacy, Technology, and the Law, which I chair, and 
testified that it would be ``difficult, if not impossible'' for 
the government to say how many people have had their 
information collected under these authorities.
    Mr. Swire, did the administration communicate this concern 
to you? If so, why did you find it unpersuasive?
    Mr. Swire. Thank you, Senator. We talked in some detail 
with the administration about transparency provisions. They 
certainly expressed concern at when there is a provider that 
has a very small number of customers, for instance, that we not 
tip off people who is being surveilled in those cases. There is 
a national security problem there.
    I think when it comes to the number of people who have been 
touched by the orders, they did not focus in their discussions 
with us on that risk in transparency. And my own sense, having 
talked, among others, with the companies on this, is that if 
there are cooperative efforts to have the companies, the 
providers, work with the government, that we are likely to be 
able to come up with practices that allow estimates. You might 
not have exact numbers in all cases because sometimes you do 
not know if the same email applies to three people or one 
person. So with precision, you might not have exact details, 
but I think you can have good trend numbers and you can have a 
good overall sense of what is happening.
    Senator Franken [presiding]. Well, I am out of my time, and 
as you can see, we have another vote, so we will recess for 
five minutes for another vote. Before we do, I just want to, 
Mr. Sunstein, just reiterate this thing about the companies, 
their ability to disclose because it is hurting them. And we 
had an analytics firm, Forrester, say that the American cloud 
computing industry stands to lose up to $180 billion by 2016 as 
a result of increased distrust of their services, particularly 
abroad. So thank you for that being part of your 
    We will recess for five minutes because I have got to go 
vote, and I better go right now. So we are recessed--oh, 
Senator Cruz, good, good. I am sorry. I guess I am the Chair.
    Senator Franken. I call on Senator Cruz.
    Senator Cruz. Thank you, Senator Franken. And I want to 
begin by just thanking each of the members of the panel, 
thanking you for your service in the intelligence community and 
thank you for your service looking at the difficult and 
important legal issues and privacy issues that surround this 
critical area.
    I think a great many Americans have concerns about the 
current state of NSA surveillance. I, for one, have concerns on 
two different fronts. I am concerned, on the one hand, that the 
Federal Government has not been effective enough monitoring and 
surveilling bad guys, that we have not succeeded in preventing 
what should have been preventable terrorist attacks. And at the 
same time, I am concerned that the sweep of the surveillance 
has been far too broad with respect to law-abiding citizens. 
And I think a great many Americans would prefer to see that 
reversed--far greater scrutiny on bad guys, people that we have 
reason to suspect may be planning a terrorist attack, and far 
more protection for law-abiding citizens who have committed no 
    And so I want to begin on the first piece, on targeting bad 
guys, and I want to follow up with the question Senator Graham 
asked earlier concerning Major Hasan and his communications 
with al-Awlaki, a known terrorist leader. Despite all of our 
surveillance capabilities, despite having significant 
indications that Major Hasan was engaged in these 
communications, the Federal Government failed to prevent the 
horrific terrorist attack that claimed the lives of 14 
innocents at Fort Hood.
    And so the first question I would like to ask the panel is: 
In your judgment, why is that? What was lacking that prevented 
us from acquiring the information and acting on it to prevent 
that act of terror?
    Mr. Sunstein. Well, I guess I would say that it is a very 
important question, and your general thought that to target 
through surveillance of known bad guys, that is something that 
we did devote a great deal of attention to, and Recommendation 
15 is, I would say, of great importance. It has gotten 
essentially no attention so far as I can tell. Not even on 
Twitter has it gotten attention. And that recommendation is 
that we need to expand our authority to track known targets of 
counterterrorism when they first enter the United States. So 
that is a gap in our statutory structure, that when they come 
to the United States they get protections immediately so we 
cannot track them.
    Whether that would apply in any way to the case you are 
describing I just--I do not think so, but it is an important 
gap. That one, I think probably as a group, we would need to 
get more into the details than we did.
    Senator Cruz. Mr. Morell, I would welcome your thoughts 
also on how we could have done better preventing that terrorist 
    Mr. Morell. Senator, it is not something that we as a group 
looked at. That was not our mandate. I am familiar with the 
case, obviously. I am a little constrained here because I do 
not know what is in the unclassified world and what is in the 
classified world. So maybe we could have a conversation 
afterward in closed session.
    Senator Cruz. Okay. A follow-up question for the panel if 
anyone would care to comment. The same is true with respect to 
the Tsarnaev brothers, the Boston bombers, where in that 
instance we had intelligence from Russia that they were having 
communications with radical Islamic groups, and yet for 
whatever reason their radicalization continued, the government 
dropped the ball, and they carried out yet another horrific 
terrorist attack.
    Do members of the panel have any views as to why our 
surveillance capability did not provide sufficient information 
to act upon to prevent that terrorist attack before it 
    Mr. Morell. So, Senator, I will tell you, in that case 
there were not any communications between the United States and 
overseas, so there was no surveillance of those communications 
that would have provided any information that would have 
prevented the Boston bombings. And this is largely a case of 
domestic radicalization, and I think that is the best way to 
think about it.
    Senator Cruz. Well, as I understand it, the elder Tsarnaev 
brother, after traveling to Chechnya, after meeting with 
radical Islamic groups, came back and posted on public YouTube 
pages admonitions to jihad. And that certainly does not take 
extraordinary surveillance capability. It simply takes the 
government looking to what he is saying publicly and loudly 
before that terrorist attack is carried out.
    Mr. Morell. Yes, and I was making a different point, 
Senator. You are absolutely right, but I was making a different 
point about actual communications and the collection of those 
    Senator Cruz. Well, and I think that underscores that my 
concern that the focus of the programs has been far too much on 
law-abiding citizens and far too little on people for whom we 
have significant reason to believe there may be a real danger 
of terrorism. And with respect to Major Hasan, with respect to 
the Tsarnaev brothers, I am not sure there could have been too 
much surveillance based on the information we had to protect 
national security.
    Now, flipping to citizens at large, am I understanding 
correctly the conclusions that the commission received that, in 
your judgment, the bulk metadata program has not to date 
prevented any specific terrorist attack? Is that an accurate 
    Mr. Stone. Yes, that is a fair understanding. We think that 
it has contributed some useful information, but could not say 
that any particular terrorist attack has been prevented because 
of the information learned from the metadata program.
    Senator Cruz. Now, an additional recommendation, as I 
understand it from the commission, is that the government 
itself stopped collecting metadata, but that private companies, 
the phone companies that already have that data preserve that 
data, and that searches be conducted only when there is 
specific cause to search rather than in a blanket sense the 
government sweeping in every law-abiding citizen.
    Mr. Stone. Precisely.
    Senator Cruz. And is it the judgment of the commission that 
if the data were kept in private hands of the phone companies 
that already possess the data legally, that that would do 
nothing to undermine the efficacy of the program preventing 
potentially future attacks?
    Mr. Stone. We believe that that way of handling the data 
can be done in a way that would not in any way undermine the 
efficacy of the program. On the other hand, we recognize in our 
report that that is speculative. We do not know that for a 
fact. And if, in fact, it turns out that there are 
inefficiencies that make it more difficult to use the data in 
an appropriate way, that the alternative is to have it held by 
a single private holder. And that would basically eliminate 
most of the inefficiencies.
    Senator Cruz. Focusing also on the question of potentially 
overbroad surveillance, a couple of weeks ago Senator Sanders 
wrote a letter to the NSA asking if the NSA, quote, has spied 
or is the NSA currently spying on Members of Congress or other 
American elected officials, and the NSA's response to that was 
Members of Congress have the same privacy protections as all 
U.S. persons, which certainly suggests the answer to that 
question is in the affirmative.
    Now, as I understand it, each of you were granted security 
clearances and the ability to see classified information and 
court opinions. So the question I would ask this panel is: Are 
you aware, has the NSA ever done surveillance on Members of 
Congress or other elected American officials?
    Mr. Sunstein. We are not aware of any such, and one of the 
things we learned in our review is that there is no targeting 
by the NSA of people because of their political views or their 
religious convictions or their political party. So in terms of 
concretely some details, we may not have precise questions that 
every one of which we have off-the-top-of-the-mind answers to, 
but politics, religion, political views, that is not what they 
are interested in.
    Mr. Swire. Just one small thing. We are talking about in 
recent years. We are not talking about back in the 1960s and 
1970s when there was a different history about intelligence 
agencies doing things that got exposed.
    Senator Cruz. No, I mean in current years, although I do 
want to clarify, Professor Sunstein, one thing you said about 
religious views. I assume you would agree that a commitment to 
jihad would not qualify as a religious view and, indeed, would 
be a political position and embrace of violence that merits 
very close scrutiny to prevent that violence from being carried 
    Mr. Sunstein. Yes, if there is reason to believe the person 
is threatening to the United States, that would not fall within 
protected religious belief.
    Senator Cruz. A follow-up question related to the question 
about Members of Congress. Is any member of the panel aware 
whether the NSA has spied or is spying on the judiciary or, in 
particular, members of the Supreme Court?
    Mr. Sunstein. We have no information to that effect and 
would not anticipate that.
    Senator Cruz. Very good. Well, I want to thank each of you 
for being here. The remainder of the Committee is off voting, 
and so with that, we will take a five-minute recess. And then I 
expect my colleagues will return, and the hearing will commence 
again then. Thank you.
    [Recess at 4:05 p.m. to 4:15 p.m.]
    Chairman Leahy [presiding]. I am almost afraid to ask what 
the joke is, but those hidden microphones we have under your 
table probably will tell us. The surveillance camera.
    Chairman Leahy. People are coming back. I just wanted to 
note a couple quotes from your report. One is the question is 
not whether granting the government authority makes us 
incrementally safer, but whether the additional safety is worth 
the sacrifice in terms of individual privacy, personal liberty, 
and public trust. It is the public trust, as we know--you know, 
so many times we have to rely on individuals in the public who 
might give us information that can be valuable, but they have 
to have the public trust. Law enforcement knows this, the same 
with the intelligence community. And I think I am about to 
yield to Senator Whitehouse but, Mr. Morell, in your review did 
you identify a difference--and I think you have already 
answered this in one question--between the demonstrated utility 
of the government's activities under Section 702 of FISA, which 
is aimed at non-U.S. persons abroad, and that of the phone 
records program under Section 215?
    Mr. Morell. Yes, Mr. Chairman. 702 has proven to be much, 
much more valuable as a counterterrorism tool than has 215.
    Chairman Leahy. Thank you very much.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Mr. Morell, how would you characterize the value of the 215 
program from an intelligence perspective and, if you will, from 
a safety perspective? Even if it has not generated 
intelligence, the fact that it could might be of some value, 
and I am interested in your assessment of its value in both of 
those dimensions.
    Mr. Morell. Yes, Senator, that is exactly where I am. It is 
absolutely true that 215 has not, by itself, disrupted, 
prevented terrorist attacks in the United States. But that does 
not mean that it is not important going forward, because as I 
said in my op-ed, it only needs to be successful once to be 
    One of the ways that I think about this is many of us have 
never suffered a fire in our homes, but we still all have 
homeowners' insurance to protect against that. And that is one 
of the ways I think about 215.
    Senator Whitehouse. I have had the concern that the 
prospect of an unauthorized leak and a sudden, spontaneous, 
unanticipated disclosure was not foreseen by the intelligence 
community, and that there did not appear to be a response that 
was timely, sensible, where it did not seem to be at all 
prepared. What is your sense of what the reaction was by the 
intelligence community? Was it really as much of a scramble as 
it looked like from the outside?
    Mr. Morell. Senator, I was inside for part of it and 
outside for part of it. So my sense is that the strategy that 
was being pursued was not successful, clearly not successful. 
The strategy that was pursued did not deal--did not mitigate 
the lack of public trust, did not win back any of the public 
    It was absolutely clear to me--and this picks up on 
something Professor Stone raised earlier--that this was, as you 
know, one of the most overseen programs in the history of the 
intelligence community, within NSA----
    Senator Whitehouse. In the history of the country, I would 
    Mr. Morell. In the history of the country. Within NSA, 
within the executive branch and the interagency, within the 
Justice Department, within the Intelligence Committees of 
Congress, and with the judiciary, which is, as you know, very, 
very unusual for an intelligence program. And I think that 
there was a sense in the intelligence agencies and in the 
executive branch that that level of oversight was enough to 
keep the public trust if there was a disclosure, and I think 
that turned out to be wrong.
    Senator Whitehouse. I wonder if it might have done better 
if within the first couple of weeks, frankly, a full disclosure 
of how the program had been carefully overseen came out, 
because it took, it seemed to me, days initially and really 
weeks until there was a solid, comprehensive review. In fact, 
what you have just said is one of the clearer expositions that 
we have heard yet. I think this is one of those cases where, 
you know, a not completely accurate image got across town 
before the truth got its boots on, and this is going to happen 
again. I mean, we live in a society in which there are going to 
be leaks. And I think for the intelligence community not to be 
prepared for this is a mistake, and in particular, it is a 
mistake because there was no analysis of--if it all happens at 
once and we make a hash of responding to it, what happens to 
this program, you dial back from that, if that is the way you 
are thinking, to being more candid up front and diminishing 
that risk. And I think we could have been a lot more candid 
with the American people up front about this program without 
creating any significant national security loss.
    So, anyway, that is my thought. My time is running out, and 
I just want to take a moment and thank you for your service to 
our country. In my time on the Intelligence Committee, I found 
you always extremely capable and honorable. And I want to also 
thank Mr. Clarke here, who has warned of many things that, if 
we and others had listened more carefully, we could have 
avoided some real disasters. So I am very pleased that both of 
you are here today and want to thank you.
    Chairman Leahy. As Chairman of this Committee, I would join 
with that.
    What we are going to do, I am going to yield to Senator 
Sessions, who has been running back and forth with me to vote. 
I am going to ask Senator Blumenthal, the senior Senator from 
Connecticut, to take the Chair. Then we will recognize Senator 
Coons and Senator Klobuchar. But before I leave, with the 
indulgence of the Members, I have spent decades on this 
Committee. We have had some terrific panels. I cannot think of 
anybody that brings the wealth and broadness of knowledge to an 
issue that the five of you do. And I say that just because you 
have given a great deal of your time to public service, but a 
great deal of your time in doing this, and it is extremely 
valuable. Whatever we do is going to be influenced heavily by 
your report, and I appreciate that. I know the President also 
appreciates the amount of time you have done. With some of you 
I go back longer, as I have with Mr. Clarke, but, Mr. Morell, 
in your days especially as Acting Director of the CIA, the 
clearness of the briefings you gave to several of us--it was 
unfortunate they were all closed-door so the public did not see 
that they were, but they were extraordinarily helpful, and that 
was something you heard from both Republicans and Democrats, 
and I appreciate that.
    And, of course, Professor Sunstein and I have know each 
other for a long, long time, and he has been extremely helpful 
to this Committee.
    Professor Stone, Professor Swire, thank you so much for the 
time you have taken.
    So I am going to turn it over to Senator Blumenthal and 
yield to Senator Sessions.
    Senator Sessions. Thank you. Well, I know Senator Leahy has 
spent a number of years dealing with these issues also, and I 
believe the PATRIOT Act that he helped craft and we all worked 
on and spent hours and hours and hours on was not one of these 
things where you have to reduce constitutional rights in order 
to protect America. I think that was the wrong characterization 
of it. I believe everything in that bill was consistent with 
then-existing criminal law techniques that were used every day 
by prosecutors in the counties of America, in the U.S. 
Attorney's Offices, which I was for almost 15 years. And I do 
not believe that there is anything there that we should be 
apologizing for.
    So the committee is an excellent committee and a highly 
intelligent committee, but I would note that three of the 
members never had hands-on experience with this. You have 
written about it, but you have not been in the field directly 
dealing with these issues. And I think anyone would say it is a 
pro-civil libertarian panel; therefore, I am rather pleased 
that you fundamentally, I think, agreed with at least some of 
what I have said.
    You say, `` . . . although recent disclosures and 
commentary have created the impression in some quarters that 
NSA surveillance is indiscriminate and pervasive across the 
globe, that is not the case. NSA focuses on collecting foreign 
intelligence information that is relevant to protecting the 
national security of the United States and its allies.'' And I 
think that--I know you did not say that lightly. I know you 
would not have said that if you did not believe it.
    You go on to say the group ``found no evidence of 
illegality or other abuse of authority for the purpose of 
targeting domestic political activity.'' I think that is good 
to hear, and that has always been my impression.
    And, also, you said, ``In our review, we have not uncovered 
any official efforts to suppress dissent or any intent to 
intrude into people's private lives without legal 
justification. NSA is interested in protecting the national 
security, not in personal details unrelated to that concern.''
    Of the 300-and-something million American people, they are 
not interested in what all we are saying on our telephone 
calls. So I think that is important. I thank you for that. And 
I believe those who have raised concerns about it could take 
comfort, some comfort into that.
    I was a prosecutor, as I said, for a long time, and I want 
to raise a question about the metadata. That sounds so awful 
and scary that it makes us nervous, but in conventional 
prosecutions in America today, a county prosecutor who is 
interested in knowing who a criminal suspect is talking to 
issues a subpoena to the phone company, and they submit the 
records to him. And then he examines the records to see if Bad 
Guy One is talking to Bad Guy Two shortly before the robbery 
took place, or whatever. This is the kind of thing that is done 
every day in every office.
    The DEA, the IRS can issue records--obtain your motel 
records, your telephone records. The IRS can get every bank 
record you have administratively--they do not even have to 
issue a grand jury subpoena for it--and examine somebody's 
financial records.
    Now, the reason is these are not their records. They are 
not the individual who is being investigated records. They are 
the phone companies' records, the bank records, the hotel's 
records. Right? I mean, that is the difference. You have a 
diminished expectation of privacy, the Supreme Court has 
clearly held for the last 100 years, I suppose, in records not 
held by you.
    Okay. So the records now are brought to the United States 
somehow. They are in our custody because of the way the 
computer systems work, and we get numbers, basically. So, Mr. 
Morell, I guess you have used this system. Would you share with 
us, is there any difference between the traditional issuing of 
subpoenas for records and the way this is done and what the 
importance, or lack of it, of the government getting the 
records from the companies in bulk and then accessing them? 
And, finally, to what extent is content obtained, the actual 
    Mr. Morell. Yes, Senator, I am not the best person to 
answer that question, so let me defer to my colleagues.
    Senator Sessions. Okay. Who would like to--Mr. Stone? And, 
Mr. Stone, I am glad to hear your comment, but you are on the 
board at the ACLU, I believe. Is that right?
    Mr. Stone. The National Advisory Board, yes.
    Senator Sessions. And did you support the ACLU lawsuit 
against the government raising many issues concerning this?
    Mr. Stone. I had nothing whatever to do with that at all.
    Senator Sessions. So you do not feel any conflict----
    Mr. Stone. No.
    Senator Sessions [continuing]. In serving on this--Okay.
    Mr. Stone. Not in this way.
    Senator Sessions. Go ahead and see if you could--I would be 
glad to hear your answer.
    Mr. Stone. I think what has changed is the nature of the 
technology, and so when you talk about subpoenas, whether it is 
through a grand jury or an administrative subpoena, typically 
they are looking for very focused type of information relevant 
to a particular investigation, narrowly defined.
    When you are comparing this to the metadata, you are 
talking about millions of Americans' records swept up. No 
    Senator Sessions. Now, wait a minute. ``Swept up.'' It is 
somewhere in a computer.
    Mr. Stone. No subpoena has ever been allowed to reach that 
breadth that happens under the metadata program. So I think the 
analogy is simply a flawed analogy.
    Senator Sessions. Well, nobody is going through and looking 
at every record that is there. They have to have some sort of 
indicia that is valuable on investigation to even inquire into 
    Mr. Stone. Yes, but you were drawing an analogy to the 
subpoena, and what I am saying is that the subpoena 
traditionally has to be relatively narrowly drawn to particular 
information directly relevant to a particular inquiry. And the 
metadata program does, in fact, elicit vast amounts of data far 
beyond anything that any subpoena in the history of the world 
has been allowed to gather.
    Senator Sessions. Well, okay. Let us get this straight. So 
the metadata comes in, and the only difference is it was in the 
computers of the phone company, but for easier access, it is 
put in the computer of the government somewhere. And the 
inquiries only go to those records, just like they would have 
gone to the phone company. The only difference is for 
convenience in computer access, the government can get it 
quicker because some of these issues are life and death.
    Mr. Stone. As the Supreme Court--five Justices, at least, 
of the Supreme Court have explicitly recognized a year ago, 
there are limits that technology now has called into play about 
how far this doctrine that, if you disclose information to 
somebody else, that you have no reasonable expectation of 
privacy in the information. So in the Jones case, five 
Justices, including Justice Alito, in a very important opinion, 
suggested that that basic principle that, as you say, was 
around for a long time has to be called into question when you 
get into a world where technology allows----
    Senator Sessions. Well, they have not held that to this 
date, have they?
    Mr. Stone. Excuse me?
    Senator Sessions. You say they called into question. No 
holding has been so held.
    Mr. Stone. No, and there would be nothing we say has 
anything to do with----
    Senator Sessions. I do not see why they would hold that. I 
do not see any difference really. You are accessing the same 
records whether you get them from the phone company or whether 
in bulk in a more accessible account.
    Mr. Sunstein. Senator, if this is helpful, I think the 
direction you are going in is actually quite compatible with 
our recommendation. So our recommendation is not that we 
eliminate the 215 program but that we have a program where the 
government does not have all this stuff, which the government 
does not in the cases you worked on as a prosecutor or district 
attorney. It does not just have it. It gets access to it on a 
certain showing. And that is exactly the model that we are 
suggesting, and what we suggest is that that model will not 
compromise any national security goal because in cases where 
time is of the essence, human life is on the line, you can get 
at it like that; and because in cases where it is not on the 
line, you go through the standard legal process.
    So the analogy from tradition, to which you have rightly 
referred, that is actually what we are building on in our 
    Senator Sessions. My time is up. Thank you. General 
Mukasey, former Attorney General Mukasey, a federal judge for 
20 years, does not agree--he thinks that will impact adversely, 
the mechanism of the system--in a recent op-ed.
    Thank you.
    Senator Blumenthal [presiding]. Thank you, Senator 
    Senator Coons.
    Senator Coons. Thank you, Senator Blumenthal, and I would 
like to thank the entire panel for your service to our Nation, 
for your testimony here today, and for your hard work to make 
sure that we really focus on and get right some of these tough 
    Just to follow up on the exchange that just happened, if 
you might, Professor Swire, how did the Review Group's 
suggestions surrounding the Section 215 authority address the 
constitutional concerns that were raised by Judge Lee? And if 
you could just focus us on the outcomes.
    Mr. Swire. Thank you, Senator. Our task that we were asked 
to do was not focused on Constitutional analysis. Our task was 
on what policy should be going forward. So as a group, we did 
not try to make an assessment on the constitutional issue.
    Senator Coons. But in your view, do the group's 
recommendations actually address some of those concerns or fail 
to address them?
    Mr. Swire. Well, we tried to do the task we were assigned. 
I think that as Professor Stone was just saying, there is 
discussion in the report about how metadata looks given 
changing technology. And so in the 1970s, there were a limited 
number of phone calls. Today the number of texts and Facebook 
posts and everything is enormously different, and that kind of 
difference is the kind of difference that five Justices of the 
Supreme Court referred to in the Jones case.
    So we asked for a study, among other things, on these 
metadata issues because we think that the changing facts 
require some changing law, probably, but we do not say on the 
Constitution what our view is.
    Senator Coons. Mr. Morell, if I might, the Review Group 
recommends replacing the Privacy and Civil Liberties Oversight 
Board with a new Civil Liberties Protection Board, and this new 
board would be empowered to review the privacy implications of 
all counterterrorism and foreign intelligence collections and 
have a new function to respond to whistleblowers and have new 
investigatory roles.
    The current PCLOB is, I would suggest, absurdly 
underresourced relative to its scope of responsibility. The 
President's budget request includes only, I think it was, $3.1 
million for the PCLOB. I may be wrong on that. Authorities 
without resources can be worse than no authorities at all 
because they provide a false sense of security.
    I would be interested in your view of what budget would be 
sufficient to allow this new board to perform its mission.
    Mr. Morell. So I do not have a specific answer for you. 
That is not something we looked at. But it would be 
significantly more resources, in my view, than it currently 
receives today.
    Senator Coons. Well, the intelligence community Inspector 
General, just to continue the examination, ostensibly exists 
within the IC to ensure legal compliance. It recently told us 
that it lacks the resources to conduct a thorough and full 
review of the 215 metadata program by the end of next year, so 
I think that reinforces the point that some significant 
increase in resources is needed to ensure the sort of oversight 
and accountability that I think all of us are working together 
to ensure.
    Mr. Clarke, if I might, declassified FISC opinions have 
revealed that the NSA in the past exceeded Court-established 
bounds of the Section 215 bulk metadata collection program 
routinely and attempted to defend those actions in front of the 
Court. I think it is widely agreed now that this was a 
violation. Some of us would allege a serious one. My concern is 
that the NSA initially tried to defend its use of non-approved 
selectors, and I would be interested in your view about why the 
NSA attempted to defend its illegal actions as legal and what 
reforms are necessary to encourage the IC to come clean and 
admit its mistakes in cases like this.
    Mr. Clarke. Senator, I think there was a good-faith lack of 
understanding and lack of communication between NSA and the 
Court. I do not think there was any intentional attempt to 
circumvent the Court, but I think we had a bunch of engineers 
and computer scientists at NSA talking to a bunch of lawyers at 
the Court, and I think there was a lack of understanding about 
what each side was saying.
    I believe as soon as the NSA learned of the Court's 
objections, they rectified the problem. So I think what this 
points to, these incidents point to, is the need for the Court 
to have more technical staff and resources. Just as the PCLOB, 
as you mentioned, is grossly underresourced, so is the Court.
    Senator Coons. Are there any other elements of your 
recommendations that would deal with this cultural mismatch, at 
least as you have suggested you have got engineers and lawyers, 
anything about adding an advocate to--adding a more adversarial 
component to the deliberative process, would that also 
strengthen the Court's capabilities and oversight?
    Mr. Clarke. I think there are four or five recommendations 
that do that. One is a public advocate in the Court. Another is 
strengthening the technical ability of the Court staff. A third 
is creating, in the new civil liberties commission, a 
technology assessment staff.
    Senator Coons. The review, if I might, Mr. Clarke--my last 
question--looks at two authorities, Section 702 and Section 
215, and these are both sections about which there has been a 
lot of public debate and discussion. But the Review Group also 
recommends greater government disclosure about these and other 
surveillance authorities it possesses. But the report, 
appropriately and understandably, does not itself disclose any 
additional programs. What review, if any, did the group make of 
undisclosed programs? Or could you at least comment about 
whether lessons learned from such review is, in fact, reflected 
in the report?
    Mr. Clarke. Well, I think there is a great deal of metadata 
collected by the National Security Letter program, and we do 
speak to that in the recommendations. But there is also a great 
deal of communications-related information collected under 
Executive Order 12333. Public attention is focused on 215, but 
215 produces a small percentage of the overall data that is 
    Senator Coons. Thank you. Thank you to the whole panel for 
your testimony. I see I am past my time.
    Senator Blumenthal. Senator Klobuchar.
    Senator Klobuchar. Thank you, Mr. Chairman. I first want to 
note for the record that two of the witnesses were my law 
professors. Professor Stone taught evidence, and Professor 
Sunstein was my administrative law professor, and they both 
were fans of the Socratic method, so this is my revenge.
    Senator Klobuchar. Okay. So I first wanted to start with 
some of the recommendations here, and one of the most prominent 
recommendations of the Review Group was the U.S. Government 
should no longer hold the metadata, but data should be held by 
either the companies or a third party. I remember that General 
Alexander said he was open to this idea back in July, and I 
guess, starting with you, Mr. Clarke, do you think that this 
would lead to greater security, or do you think there could be 
more of a possibility of it being hacked? And then I guess I 
would ask the professors, do you think then the companies will 
be insisting on protections for liability?
    Mr. Clarke. Well, Senator, thankfully, I was not your 
professor. I note that there has been a very significant 
information compromise at NSA, well over a million documents 
stolen. So even NSA can have its information stolen. It is not 
just Target and other commercial entities.
    Senator Klobuchar. Thank you for bringing up my home town 
    Mr. Clarke. Sorry about that.
    Senator Klobuchar. That is all right.
    Mr. Clarke. I am unaware of people's phone records going 
into the public record when they were stolen from phone 
companies. They are there now. We are not suggesting something 
new. The phone companies have the data. We are really 
suggesting that they keep it rather than the government.
    If, rather than leave them at the phone companies, we went 
a third-party route, yes, you are absolutely right. The 
security of those records would have to be paramount, and I 
believe that security can be achieved from hackers. We spend a 
whole chapter in the report talking about how to do that. It is 
just that most people do not do it.
    Senator Klobuchar. Okay. How about the liability issue?
    Mr. Clarke. Liability, I think, is a matter of your 
providing safe harbor by legislation.
    Senator Klobuchar. Okay. One other recommendation was to 
create, which has, I know, been discussed before I got here, 
the public interest advocate at the Court to provide for a more 
adversarial process, to provide for someone to ensure that 
privacy and civil liberty interests were represented. 
Approximately what proportion of the cases should be 
substantively argued by a public interest advocate on privacy 
and liberty grounds? Do you see it as happening in every case 
or a percentage of the cases?
    Mr. Sunstein. Approximately small. The reason I say 
approximately small is that the overwhelming majority of the 
cases do not involve novel or difficult issues of law and 
policy. So, one thing we are focused on is the possibility that 
the public interest advocate would not have as many hours of 
engagement as a standard lawyer does just because a lot of the 
cases are routine.
    We do not have an exact percentage, but where the issues of 
law or policy are novel, then there is a keen importance to 
making sure it is an adversary proceeding.
    Senator Klobuchar. Yes, I thought this was a good 
recommendation. Yesterday the Committee did receive a letter 
from Judge Bates, the Director of the Administrative Office of 
the U.S. Courts and a former presiding judge on FISC, in which 
he raised some significant questions about proposed reforms, 
including adding a standing special advocate to the Court, and 
recommended instead that the Court be allowed to appoint an 
advocate on a case-by-case basis. Does this make sense to you? 
I do not know if you want to----
    Mr. Sunstein. We admire Judge Bates and respect his views. 
We respectfully disagree with that one on the grounds that the 
judge sometimes is not in the ideal position to know whether a 
particular view needs representation, and that in our tradition 
standardly the judge does not decide whether one or another 
view gets a lawyer. And this is an unusual context, admittedly, 
but if there is a privacy or civil liberties concern, it is 
good to have someone who is specially authorized to take 
account of that concern in deciding whether to participate.
    Senator Klobuchar. That makes sense. The public revelation 
of the surveillance programs, particularly those targeting 
foreign leaders, has generated a strong outcry from some of our 
allies, including Germany and Brazil. And the Review Group 
recommended that the U.S. intelligence community limit 
surveillance focused on foreign leaders to instances where 
there is a clear need and that such intelligence requirements 
be subject to senior policymaker review.
    I guess, first of all, I would ask--I think, Mr. Morell, 
would this be your area? In your view, did the surveillance of 
Prime Minister Merkel meet the standards that you are 
suggesting here?
    Mr. Morell. Ma'am, I cannot confirm or deny the 
surveillance of any particular foreign leader. I would say that 
I think it is absolutely important that policymakers make 
decisions about collection at that level, and that has not been 
the case heretofore.
    Senator Klobuchar. And the Review Group also recommended 
extending the protections of the Privacy Act of 1974 to foreign 
citizens. Is there a precedent for the U.S. Government or any 
other government to extend privacy protections to foreign 
citizens in its conduct of intelligence collection?
    Mr. Swire. Thank you, Senator. On the Privacy Act, the 
Department of Homeland Security for several years has had a 
policy that we say should be adopted more broadly, which isI 
when there is a mixed system of records and there are U.S. and 
non-U.S. people in that, then the non-U.S. people would have 
access to those records as well. So we are building on the 
precedent from Homeland Security.
    Senator Klobuchar. Okay. Very good. Anyone want to add 
anything more?
    [No response.]
    Senator Klobuchar. All right. Thank you.
    Senator Blumenthal. Thank you, Senator Klobuchar.
    Senator Durbin.
    Senator Durbin. Thanks, Senator Blumenthal, and thank you 
    I regret that Osama bin Laden brings us to the airport 
about an hour earlier than we used to go, and I regret that 
Edward Snowden brings us together today. But I think we have to 
acknowledge the obvious. There is a public question now about 
privacy and whether the government is going too far. It is a 
question many of us contemplated in the past, but could never 
discuss openly. Now that this is a matter of public record, we 
have this hearing, as we should, to try to restore the 
confidence of the American people.
    Several of you are authors, and I have read your works on a 
lot of different issues. But the issue before us today is one 
where the word is not even found in the Constitution--
``privacy''--and what we can come to expect and what the Court 
might view as going too far, any court might view as going too 
far, and whether the court of public opinion would view as 
going too far.
    When you consider the incredible advancement in telephone 
technology, smart mobile phones, the ubiquitous use of the 
Internet, is it time to revisit whether Smith v. Maryland is in 
line with the expectations of the American people about 
privacy? In a world that we live in where phone booths are 
viewed as some quaint anachronism and people stand up in the 
middle of a crowded place and broadcast their telephone 
conversations to everybody within earshot, where we know that 
commercial invasion of our personal privacy is taking place 
almost constantly, and the accumulation of information by our 
government is only a fraction of what the commercial sector is 
gathering about us every single day in every move we make, take 
a step back and get to altitude here and tell me what you think 
the issue of privacy looks like.
    Mr. Sunstein. Senator, from the 100,000-foot level, we do 
believe that in the current technological environment, if 
people use the Internet or the telephone or banks, it is right, 
certainly as a matter of public policy, to protect their 
privacy and to focus on striking the right balance between 
national security needs and the needs of government to get 
access to information that can protect us against those who 
would do us harm.
    So we were not asked to investigate the Constitutional 
issue as if we were judges, but we were alert to your concerns, 
very much so, in offering our recommendations.
    Senator Durbin. And is it not a fact that if I could obtain 
anyone's phone logs of the actual phone numbers they called and 
know the names of the persons they called, I could probably 
draw some inference about them, their lives, maybe their 
    Mr. Sunstein. Unquestionably. So metadata is not the same 
as content, but it is something that people are understandably 
skeptical of the idea that others get access to, especially the 
government, for exactly the reason you give.
    Senator Durbin. And if we let the telephone companies 
retain possession of this data and go after it as needed, what 
kind of obstacle does that create in going after bad guys, 
Boston bombers, where we might come up with a telephone number 
and need to know pretty quickly whether this is isolated or 
part of an international effort?
    Mr. Sunstein. If there is a need, either because something 
bad has happened in the recent past or because there are 
reasonable grounds to believe it is going to happen in the near 
or pretty near future, then if time is of the essence, there is 
no need to go to court. So we would design our recommendation 
and the legislation that would respond to the recommendation in 
a way that acknowledges that sometimes you have to move very 
    Senator Durbin. Senator Coons raised this question--I am 
sure it has been raised earlier before I came--about adding 
some balance to the FISA Court so that there is at least 
something akin to an adversarial proceeding or at least both 
sides of the issue are being heard. What do you feel, based on 
the work that you have done, is the most credible way to 
establish that?
    Mr. Swire. Thank you, Senator. I will just say a couple 
things that are in our report.
    One thing is that trying to think about who those people 
are institutionally is something that I think deserves some 
public attention. The people who would be advocates would have 
to have a clearance because they would have to be working in 
the FISA Court. You would want them to have some continuity 
over time so that the last case is known to them enough so that 
the next case makes sense. And it might not be a full-time job 
because it is only occasionally that the big minimization cases 
    Senator Durbin. Who would they work for?
    Mr. Swire. Well, and so we suggest some ideas that have not 
been as much discussed in the public before that. One idea 
would be to put it at the PCLOB, the Privacy Board or whatever 
you call it going forward, because they have a lot of other 
jobs to do and they have lawyers. Another possibility is to put 
it out for bid so that some law firm or public interest group 
would have three or five years where they are doing it. They 
have a day job, but when it is important to do it, they are 
there to do it.
    The concern is if you just sort of pop in and out, you 
would not have the technological and other context to do it 
well, and if you sit there full time, you have nothing to do 
for weeks at a time, possibly.
    Senator Durbin. We have this quaint concept of an Inspector 
General in departments, working at the department but not for 
the department, literally charged with taking a look from an 
outside point of view, and most of them emerge with some 
credibility because of this relationship. Is that something 
that we could build on?
    Mr. Swire. Historically, my understanding is the IGs have 
not had a legal function, that putting a legal office in the IG 
would be--you are saying it--but my understanding is that they 
have had fraud, waste, and abuse but not being the best lawyers 
you can get. If you want the best lawyers you can get for 
privacy and civil liberties arguing with the Court and with the 
very great lawyers in the Department of Justice, thinking about 
how to staff that so you will have really good people 
available, and they probably need something else to do the days 
of the week when they are not doing this because it is not that 
many cases.
    Senator Durbin. I might just close by saying two things.
    First, the pending appropriations bill, the omnibus bill, 
contains some provisions which I have added that will finally 
make public, as much as can be made public, a lot of specific 
data about what has been collected, why it has been collected, 
and what the result of the collections has been. It has been an 
issue that has been important to me for a long time, and it is 
going to be part of the bipartisan bill.
    And, finally, I support what Senator Blumenthal is trying 
to do to make sure these FISA Courts are more balanced in the 
appointees. Not to take anything away from the current process, 
but I think if there were more diversity in the selection, 
there would be more confidence in the outcome. I think his 
legislation is a good move.
    Thank you.
    Senator Blumenthal. Thank you, Senator Durbin.
    Just to pursue Senator Durbin's point about how to house 
the special advocate or constitutional advocate or public 
advocate, I think the key question that he asked is: Who does 
she or he work for? Who is the client? And my concept in 
advancing it originally was always that the client is the 
individual or group whose constitutional rights may be 
imperiled. In other words, it really is the Constitution. And 
the appearance, again, we talked earlier about appearance and 
perception being important. Housing is important from a 
perception standpoint. If the public defenders in federal 
courts--and I dealt with a lot of them as a U.S. Attorney--were 
housed in the prosecutor's office, clients coming to be 
defended would have a totally different perception, even though 
it might actually save money to put them in the prosecutor's 
    So I think there is a very important analogy here, and that 
in the federal system we have federal public defenders who are 
full-time, they are not ad hoc, although for a long time people 
were represented by--and still are in State courts--people sort 
of hauled into the process to do their duty with minimal pay 
while juggling other duties, and sometimes not clear that they 
had the experience to handle a particular case. And that is why 
I have advocated a full-time, institutionalized, separate 
office that is independent, as independent as possible, because 
perception is so important. And I want to thank you all for 
giving thought to the excellent kind of questions that Senator 
Durbin and Senator Coons and Senator Klobuchar have raised.
    One last point, again, to pursue Senator Durbin's question. 
Smith v. Maryland is about as outdated as I think any Supreme 
Court could possibly be, given that it was dealing with a 
different system of information gathering at a different time, 
not only with payphones but literally the wires, the mechanism, 
the infrastructure was so different. And I think the elephant 
in the room here is really the Supreme Court. Many of our 
colleagues have said, well, we ought to wait for the Supreme 
Court. But we all know that the Supreme Court is not 
necessarily an absolutely clear and non-controversial source of 
law. And we have an equal responsibility, the Congress under 
the United States Constitution has an equal responsibility to 
protect the Constitution, indeed to define the Constitution. 
And that is why your work, I think, has been very, very 
important, because you have really, as I mentioned earlier, not 
only given us some guidance but also great credibility to the 
direction that I believe and hope the President will go.
    So if there are other comments, we are going to hold this 
record open for one week. Senator Sessions has asked me to 
place in the record a Wall Street Journal opinion article by 
former Attorney General Mukasey. It is entitled, ``The Era of 
Unreality in NSA Reform.''
    [The article appears as a submission for the record.]
    Senator Blumenthal. And we will hold this record open for a 
week, and thank you all, gentlemen.
    [Whereupon, at 4:55 p.m., the Committee was adjourned.]
                            A P P E N D I X

              Additional Material Submitted for the Record


                Prepared Statement of Hon. Patrick Leahy


              Prepared Statement of Hon. Dianne Feinstein


   Questions submitted by Senator Chuck Grassley for the President's 
                          Review Group members



    Responses of the President's Review Group members to questions 
                  submitted by Senator Chuck Grassley


                Miscellaneous Submissions for the Record


                 Additional Submissions for the Record

    Submissions for the record not printed due to voluminous 
nature, previously printed by an agency of the Federal 
Government, or other criteria determined by the Committee, 
    Report of the President's Review Group on Intelligence and 
Communication Technologies:

    New America Foundation: ``Do NSA's Bulk Surveillance 
Programs Stop Terrorists?'' by Peter Bergen, David Sterman, 
Emily Schneider, and Bailey Cahall:

    Center for Security Policy, Occasional Paper Series: ``A 
Critique of the Recommendations by the President's Review Group 
on Intelligence and Communication Technologies'':

    ``Comments on the Judiciary on Proposals Regarding the 
Foreign Intelligence Surveillance Act'' by John D. Bates, 
Director of the Administrative Office of the United States