[Senate Hearing 113-676]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-676



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                      WEDNESDAY, FEBRUARY 12, 2014


                          Serial No. J-113-49


         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




Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    34


Witness List.....................................................    33
Medine, Hon. David; Wald, Hon. Patricia M.; Brand, Hon. Rachel 
  L.; Dempsey, Hon. James X.; Cook, Hon. Elisebeth Collins.......     6
    background information.......................................    36


Questions submitted by Senator Grassley for David Medine.........    38
Questions submitted by Senator Grassley for Rachel Brand.........    39
Questions submitted by Senator Grassley for Elisebeth Collins 
  Cook...........................................................    40
Questions submitted by Senator Grassley for Chairman David 
  Medine, James Dempsey, and Judge Patricia Wald.................    41


Responses of David Medine to questions submitted by Senator 
  Grassley.......................................................    42
Responses of Rachel Brand to questions submitted by Senator 
  Grassley.......................................................    45
Responses of Elisebeth Collins Cook to questions submitted by 
  Senator Grassley...............................................    48
Responses of Chairman David Medine, James Dempsey, Judge Patricia 
  Wald to questions submitted by Senator Grassley................    51

                       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, list: http://
  Telephone-Records-Program.pdf..................................    54


                      WEDNESDAY, FEBRUARY 12, 2014

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, presiding.
    Present: Senators Blumenthal, Whitehouse, Franken, 
Grassley, and Hatch.


    Senator Blumenthal. I am very pleased to begin this hearing 
of the Senate Judiciary Committee on the report of the Privacy 
and Civil Liberties Oversight Board on Reforms to Section 215 
Telephone Records Program and the Foreign Intelligence 
Surveillance Court. I appreciate your being here today--all 
five members of the Board are here--and most important, your 
extraordinarily impressive report, which is all the more so 
because of the less-than-ideal conditions under which you did 
it, with very few staff and high time pressure.
    I am struck by the thoughtful analysis, which is 
exceptional--exceptional in its quality, but also exceptional 
in the fact that this issue has received so little thoughtful 
analysis over the time that this surveillance and intelligence-
gathering program has proceeded. And, of course, for years the 
program has been hidden from the public, and the legal 
justification of it was not available to anyone. In fact, the 
legal justification was not done, and that is more shocking 
even than the hiding and secrecy involved in the program.
    Since the program was made public, we have seen legal 
justifications from the executive branch and opinions from the 
judiciary, but none of the publicly available analysis has 
addressed all of the crucial questions that you discuss in your 
report. So I thank you for that contribution, among others.
    I am absolutely shocked and deeply disturbed that eight 
years after this metadata program, the bulk collection program, 
was authorized, the courts have still not carefully and 
thoroughly worked through the issues that surround the program. 
In our American legal system, we expect that there will be such 
analysis, such review of legal issues before the executive 
branch acts. And here there apparently was none. Even the two 
members of your Board who dissented from the legal analysis 
acknowledged that the Board has raised significant legal issues 
which could divide reasonable people, reasonable lawyers.
    The American people essentially deserve better, and that is 
one of the reasons that we are here today. They deserve better 
than to have the executive branch engaging in conduct that even 
its defenders say might be illegal.
    The second major achievement of this report is that it 
sheds light on the history of the bulk telephone metadata 
program. We learned from your report that a judge authorized 
the collection of phone records on potentially every American 
without so much as issuing a written opinion, which is 
incredible, absolutely shocking.
    In 2006, Judge Howard issued an extensive order allowing 
the government to collect phone records of law-abiding 
Americans with no known connection to any crime, telephone 
records on every American who was not even suspected of 
committing any crime. And he chose not even to provide a 
sentence explaining his legal reasoning.
    That is all the more disturbing when you consider the legal 
context. In 2006, the Attorney General was required by law to 
pass along to Congress any major ruling, any major legal ruling 
from the FISA Court, Foreign Intelligence Surveillance Court, 
but only if the FISA Court wrote an opinion. So when Judge 
Howard decided he was not going to write an opinion, the 
decision prevented Congress from learning the legal basis for a 
massive change in the government's claim to surveillance 
authority, which is an important--in fact, essential--point. 
There are some, maybe in this audience, some Americans 
certainly who agree that the FISA Court should have an 
adversarial process, but they will allow it only if the FISA 
Court judge asks for it. And yet it appears that the judge who 
first signed off on the bulk metadata program, a program that 
even its supporters acknowledge raises significant legal 
issues, did not think that the issue warranted an opinion.
    So I am not blaming Judge Howard for this submission. 
Judges really are not expected to decide what is important and, 
in fact, often cannot do so without a lawyer raising an issue 
and highlighting it and arguing it and saying that it is 
crucial. All the more reason that the adversarial process has 
to involve a constitutional advocate, in my opinion, and the 
legal basis for this order was not only not conveyed but the 
lack of an opinion prevented Congress from learning about it.
    There are also reasons in your report to question the 
effectiveness of the bulk metadata program, and, in fact, we 
have learned more recently that perhaps only 30 percent, 
actually, of the phone calls were collected. Only a proportion 
of the supposedly comprehensive collection of phone calls was 
actually absorbed or collected by the government, which 
undercuts and contradicts representations made to the courts in 
justification of the program itself. Representations made by 
the President are undercut by that potential fact. So it 
appears that the effectiveness of the program may be in 
question also, which is an issue raised in your report and, 
again, highly significant.
    These kinds of issues deserve to be aired and analyzed more 
effectively and comprehensively than they have been, and one of 
the reasons we are having this hearing is to give you an 
opportunity to continue your conversation with the American 
public about these critical issues. I want to again thank you, 
not only on my behalf but also for Chairman Leahy, who has 
provided a written statement. I am not going to read it, but if 
there is no objection, I will ask that it be made part of this 
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Blumenthal. I will now turn to the Ranking Member, 
Senator Grassley.

                       THE STATE OF IOWA

    Senator Grassley. I have a statement I am going to read. 
Before I do that, I want to say that I have the same concerns 
that Senator Blumenthal has just expressed. But I also want to 
make it very clear that--and if I did not have those same 
concerns, I would not be upholding my oath to the Constitution 
and the Fourth Amendment. But, also, I think I would take into 
consideration a balance between our number one responsibility 
of the Federal Government, which is national security, and the 
requirements of our civil liberties.
    First of all, thank you for joining us, and thank you, Mr. 
Chairman, for holding this hearing, and I welcome the Board 
members that are with us, the entire Board.
    It is good that the Committee has held many hearings on 
these surveillance authorities. The Committee will undoubtedly 
hold more. The most important responsibility of the Federal 
Government is to protect national security, while at the same 
time preserving our civil liberties. The NSA continues to be of 
great concern to my constituents in Iowa and obviously across 
the country.
    Over the last few months, I have grown more concerned about 
why the Department of Justice has not prosecuted any of the few 
NSA employees who willfully abused their surveillance 
authorities. We do have examples of where it has been abused 
and referred to the Justice Department. I have not had an 
answer yet. I did write a letter to the Attorney General about 
this back in October. Still no response.
    A few weeks ago at a hearing, I pressed the Attorney 
General for an answer. He did not have one. He committed to 
getting me a response, but I am still waiting. It is good that 
these abuses have occurred only on a few occasions. But the 
American people need to know if the Department is taking these 
referrals seriously.
    A month or so ago, the President finally weighed in on 
these important surveillance reform matters. It was past time 
for our Commander in Chief to become engaged on this issue. 
After all, surveillance authorities are critical to our 
national security.
    Some of the reforms in his speech concerned me, like the 
idea that we would recognize privacy rights of potential 
foreign terrorists. I do not quite understand that.
    On the other hand, other reforms the President announced 
seem very promising. For example, to the extent that it does 
not compromise national security, increased transparency can 
help to restore the public's confidence in our intelligence 
    Indeed, not long after his speech, the administration 
announced new rules that will permit companies to be far more 
transparent with their customers about FISA Court orders and 
    The President also announced reforms to the government's 
handling and use of the telephone metadata that it collects 
under 215.
    The government is now required to obtain a separate court 
order every time it seeks to access or search metadata, except 
in emergency situations. This is a significant additional 
safeguard against the potential abuses of the metadata.
    Additionally, the President announced a change to the 
program that will require the metadata to be held by the 
telephone companies. He apparently believes that this can be 
done without compromising the program's operational value. 
There are many questions about whether such an arrangement is 
desirable or even possible. But the administration is currently 
exploring options implementing this change, and it is my 
understanding they are supposed to have a report ready by March 
    It was against this landscape that this Board before us 
issued its report a few weeks ago. The report contains a number 
of recommendations that I am interested in hearing more about.
    For example, many of the recommendations in the report 
concern increased transparency--a very worthy goal. All but one 
of these transparency recommendations was adopted unanimously 
by the Board reporting today to us. Moreover, they are similar 
to the reforms that the President proposed.
    Additionally, the report recommends that the FISA Court be 
able to call upon a pool of advocates from outside the 
government. These advocates would provide an independent 
perspective, but only in cases that the judge decides present 
novel or significant issues. This recommendation was also 
adopted unanimously. It is also similar to the President's 
proposal, as well as the approach in the bill that passed out 
of our Senate Intelligence Committee.
    The Board's remaining conclusion, however, was that the 
Section 215 metadata program is illegal and should be 
terminated. Of course, this recommendation received the most 
media attention. It was adopted by only a bare majority of the 
Board before us on a 3-2 party-line vote.
    The Board's conclusion on this point is striking, given 
that it is inconsistent with the opinions of so many other 
authorities that have evaluated the lawfulness of the Section 
215 program.
    For instance, the Board's conclusion is contrary to the 
opinion of the President of the United States, who, as you 
know, proudly says, and legitimately so, that he is a former 
constitutional law professor, as well as even the Department of 
Justice taking that same position.
    It is contrary to the opinion of the prior administration 
that initiated the program.
    It is contrary to the opinion of the 15 FISA Court judges 
who have reauthorized the program over the years.
    It is contrary to the opinion of two of the three district 
court judges who do not serve on the FISA Court but who have 
nonetheless considered the issue.
    And, of course, it is contrary to the opinion of two of the 
Board's members.
    Nevertheless, as we consider these various reforms, I 
welcome hearing a wide range of views. I thank the Board for 
their contribution to public service on this very important 
issue that is obviously a constitutional issue.
    Thank you.
    Senator Blumenthal. Thank you, Senator Grassley.
    I do not know whether Senator Franken has any remarks that 
he would like to make at the outset.
    Senator Franken. I will wait until the questioning.
    Senator Blumenthal. Very good. Thanks.
    I would like to ask the panel to please rise and be sworn, 
as is the custom of our Committee. Do you affirm that the 
testimony that you are about to give is the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Medine. I do.
    Judge Wald. I do.
    Ms. Brand. I do.
    Mr. Dempsey. I do.
    Ms. Cook. I do.
    Senator Blumenthal. Thank you.
    I understand that you have a brief opening statement, but 
before that, let me just introduce the panel, if I may.
    David Medine, the Chairman of the PCLOB, has been the 
Board's Chairman since May 2013. Before becoming the Chair, he 
worked as an Attorney Fellow at the Securities and Exchange 
Commission and a Special Counsel at the Consumer Financial 
Protection Bureau. He was previously a partner focusing on 
privacy and data security at Wilmer Hale, a Senior Adviser to 
the White House National Economic Council, and Associate 
Director for Financial Practices focusing on privacy issues at 
the Federal Trade Commission, and also was a professor at 
Indiana University and George Washington University Law 
Schools. He has a B.A. from Hampshire College and a J.D. from 
the University of Chicago.
    Rachel Brand is chief counsel for regulatory litigation for 
the United States Chamber of Commerce. Ms. Brand has held a 
number of positions at the Department of Justice during the 
President George W. Bush administration, including Assistant 
Attorney General and Principal Deputy Assistant Attorney 
General for Legal Policy and Regulatory Policy Officer. She 
worked in the White House Counsel's Office and clerked for 
Justice Anthony Kennedy and justice Charles Fried of the 
Supreme Judicial Court of Massachusetts. She has also practiced 
law at Wilmer Hale and at Cooper Carvin Rosenthal in 
Washington, DC. She has a B.A. from the University of Minnesota 
and a J.D. from the Harvard Law School.
    Elisebeth Collins Cook is counsel in the regulatory 
controversy and regulatory and government affairs departments 
in the Washington, DC, office of Wilmer Hale. Ms. Cook 
previously served as the Republican Chief Counsel on Supreme 
Court Nominations for the Senate Judiciary Committee and as an 
Assistant Attorney General for Legal Policy at the Department 
of Justice at the end of the Bush administration. She served as 
a member of the Board of Governance of the Terrorist Screening 
Center and co-chair of the Subcommittee of the President's 
Identity Theft Task Force. She was a law clerk to Justice 
Laurence Silberman of the United States Court of Appeals for 
the DC Circuit and to Judge Lee Rosenthal of the United States 
District Court for the Southern District of Texas. She holds a 
B.A. from the University of Chicago and a J.D. from Harvard Law 
    James Dempsey is vice president for public policy at the 
Center for Democracy & Technology, a nonprofit focused on 
privacy, surveillance, and other Internet issues. Mr. Dempsey 
previously served as deputy director of the nonprofit Center 
for National Security Studies and as special counsel to the 
National Security Archive. Prior to that, he was Assistant 
Counsel to the House Judiciary Committee's Subcommittee on 
Civil and Constitutional Rights and an associate at Arnold & 
Porter. He, too, was a law clerk, in his instance for Judge 
Robert Braucher of the Massachusetts Supreme Judicial Court. He 
served as a member of several bodies addressing these issues, 
including the Industry Advisory Board for the National Counter-
Terrorism Center, and the Transportation Security 
Administration's Secure Flight Working Group, among others. He 
has a B.A. from Yale University and a J.D. from Harvard Law 
    And, finally, but certainly not least, I am particularly 
proud and pleased to welcome a native of Connecticut, Judge 
Wald, who has served with extraordinary distinction for 20 
years on the United States Court of Appeals for the District of 
Columbia, including five years as chief judge. She has also 
continued her public service as a judge on the International 
Criminal Tribunal for the Former Yugoslavia and a member of the 
President's Commission on Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction. She served 
in President Carter's administration as the Assistant Attorney 
General for Legislative Affairs in the Department of Justice. 
She also previously worked as an attorney at the Mental Health 
Law Project, the Center for Law and Social Policy, the 
Neighborhood Legal Services Program, the Office of Criminal 
Justice at the Department of Justice, and co-director of the 
Ford Foundation Drug Abuse Research Project. Judge Wald clerked 
for Judge Jerome Frank on the United States Court of Appeals 
for the Second Circuit. She received her B.A. from the 
Connecticut College for Women and her J.D. from Yale Law 
School. And I might just say she has been inducted into the 
Connecticut Women's Hall of Fame.
    We welcome all of you. We thank you for being here. I 
understand you have a brief introductory statement that will be 
submitted by the Chairman, and please proceed. Thank you.


    Mr. Medine. On behalf of my fellow Privacy and Civil 
Liberties Oversight Board members, thank you, Mr. Chairman, 
Ranking Member Grassley, and Committee Members, for the 
opportunity to appear today.
    PCLOB, or the Privacy and Civil Liberties Oversight Board, 
is an independent executive branch agency tasked with ensuring 
that our Nation's counterterrorism efforts are balanced with 
the need to protect privacy and civil liberties.
    Before beginning my testimony, I want to state our respect 
and admiration for the men and women in the intelligence 
community who work tirelessly to protect this country while 
maintaining our values. We have the highest regard for them.
    Last June, at the request of Members of Congress and the 
President, our Board initiated a study of the bulk telephone 
records program conducted by the National Security Agency under 
Section 215 of the USA PATRIOT Act. The study included 
classified briefings with officials from the Office of the 
Director of National Intelligence, the NSA, the Department of 
Justice, the FBI, and the CIA.
    Board members also met with White House staff, a former 
presiding judge for the FISA Court, academics, privacy and 
civil liberties advocates, technology and communication 
companies, and trade associations.
    In addition, the Board received a demonstration of the 
Section 215 program's operation and capabilities at the NSA.
    The Board has been provided access to classified opinions 
by the FISA Court and classified documents relating to the 
operation and effectiveness of the program. At every step of 
the way, the Board has received the full cooperation of the 
intelligence agencies.
    Consistent with our statutory mandate to operate publicly 
where possible, the Board held two public forums and solicited 
public comments. In our January 23 report, the Board concluded 
that the Section 215 bulk telephone records program lacks a 
viable legal foundation under Section 215, implicates 
constitutional concerns under the First and Fourth Amendments, 
raises serious threats to privacy and civil liberties as a 
policy matter, and has shown only limited value. As a result, 
the Board recommends that the government end the program.
    The majority concluded that particularized telephone record 
searches could be performed using other existing authorities. 
Two Board members declined to join the Board's legal 
conclusions, taking the position that the government's 
interpretation of the statute is a reasonable reading, made in 
good faith by numerous officials in two administrations of 
different parties, and constitutes a good-faith effort to 
subject a potentially controversial program to both judicial 
and legislative oversight.
    The Board unanimously recommends that the government 
immediately implement several additional privacy safeguards to 
mitigate the privacy impact of the present Section 215 program. 
Specifically, the government should reduce the retention period 
for the bulk telephone records program from five years to three 
years; reduce the number of hops used in contact chaining from 
three to two; submit the NSA's reasonable, articulable 
suspicion, or RAS, determinations to the FISA Court for review 
after they have been approved by the NSA and used to query the 
data base; and require an RAS determination before analysts may 
submit queries to or otherwise analyze the corporate store, 
which contains the results of contact chaining queries to the 
full collection store.
    Last week, at the Attorney General's request, the FISA 
Court modified its primary order to require prior judicial 
approval for reasonable, articulable suspicion determinations 
before the data base is queried, and consistent with the 
Board's recommendations, the Court reduced the permissible 
queries from three to two hops.
    The Board's report also addressed the operation of the FISA 
Court. The Court's procedures have raised concerns that it does 
not take adequate account of positions other than those of the 
    The Board believes that some reforms are appropriate and 
would help bolster public confidence in the operation of the 
Court, including: creation of a panel of private attorneys, or 
Special Advocates, who can be brought into cases involving 
novel and significant issues by FISA Court judges; development 
of a process facilitating appellate review of FISA Court 
decisions; and increased opportunity for the Court to receive 
technical assistance and legal input from outside parties.
    We believe that our proposal successfully ensures the 
ability of the Court to hear opposing views while not 
disrupting the Court's operation or raising constitutional 
concerns about the role of an advocate.
    The Board also believes that to the maximum extent possible 
consistent with national security, declassified opinions of the 
FISA Court, with minimal reductions, should be made publicly 
    Finally, the Board believes that the scope of surveillance 
authorities affecting Americans should be public while 
sensitive operational details regarding the conduct of 
government surveillance programs remain classified. Two Board 
members declined to join this recommendation.
    All of the Board's recommendations regarding the operation 
of the FISA Court and six of the seven regarding transparency 
are unanimous.
    The Board thanks you for the opportunity to testify before 
the Senate Judiciary Committee today regarding our report. We 
would be happy to answer any questions the Committee members 
may have.
    [The prepared statement of Mr. Medine and the other Board 
members appears as a submission for the record.]
    Senator Blumenthal. Thank you. I am happy to give other 
members of the panel an opportunity to speak separately by way 
of introduction, but if not, why don't I just begin with some 
    Let me ask you as the Chairman, Mr. Medine, would the 
apparent revelation that perhaps only a proportion of this 
telephone data was actually collected change in any way the 
conclusions of your report?
    Mr. Medine. I do not think we can address in public session 
the pros and cons of that conclusion, but we would be happy to 
meet with the Committee in private session. But even if the 
reports are true, it still means that hundreds of millions of 
telephone records are being collected, and so at least it is my 
view that it would not change the recommendations of the Board.
    Senator Blumenthal. Would it undercut the accuracy of 
representations made by the U.S. Government to the courts to 
justify this program?
    Mr. Medine. Again, I do not want to comment on that because 
some of this matter still remains classified, and I think there 
is more to be said on that, but I do not think it can be said 
in public session.
    Senator Blumenthal. Well, let me put it a different way. 
Wouldn't you agree with me that the U.S. Government has misled 
the courts, whether purposefully or inadvertently, in 
justifying this program on the basis that all telephone records 
are collected?
    Mr. Medine. Again, I am not prepared to confirm any of the 
reports that have been made, and so I do not want to draw any 
conclusions about representations that were made in any court 
    Senator Blumenthal. Let me then just move on to a separate 
line of questioning. Is it fair to say from your report that 
the present bulk metadata collection program is unjustifiable 
under existing law?
    Mr. Medine. That is the conclusion of the majority of the 
Board, yes.
    Senator Blumenthal. It is illegal.
    Mr. Medine. Yes. It is not consistent with the Section 215 
    Senator Blumenthal. So in order to continue it, if the 
Congress chooses to do so, we would have to change the statute?
    Mr. Medine. That is the majority's view, although, again, 
the majority would also counsel that even if you change the 
statute and resolve the statutory issues, we still believe 
there are serious constitutional issues and very serious policy 
issues related to balancing national security with privacy and 
civil liberties, and given that there are alternative legal 
authorities to be used, at least the majority's preference 
would be to abandon 215 for these purposes and use those other 
legal authorities.
    Senator Blumenthal. In other words, in effect, scrap 215 
and rely on alternative authority?
    Mr. Medine. Exactly, yes.
    Senator Blumenthal. Has the panel reached any conclusion in 
terms of timing as to whether our consideration or perhaps 
revision of 215 or other authorities should await resolution by 
the U.S. Supreme Court of some of these issues that may come 
before it in cases that are now in the lower courts?
    Mr. Medine. The panel has not addressed that question 
specifically, but, again, given both the legal and policy 
concerns, I think the interest would be to move forward and try 
to resolve those issues sooner than later.
    Senator Blumenthal. Because we have no assurance, knowing 
the U.S. Supreme Court, whether it will, in fact, address those 
issues that are considered necessary and relevant for the 
Congress to act or not, that is up to the Court to do?
    Mr. Medine. Right. We only have district court decisions 
now, and they have to work their way up through the system. But 
at least the majority of the Board believes that action should 
be taken on the program sooner than later.
    Senator Blumenthal. There is no telling whether the U.S. 
Supreme Court will resolve those critical issues and when it 
will do so.
    Mr. Medine. Right, or how it will do so, as well, in terms 
of providing guidance.
    Senator Blumenthal. Let me ask you and Judge Wald, on the 
issue of the adversarial process, I understand that the 
conclusion of the panel was that the advocate--I have called it 
a ``constitutional advocate''--should be enlisted only when the 
Court thought there was a novel or important issue. My view is 
that the constitutional advocate should make that decision and 
be involved wherever she thought an important or novel issue 
was raised by a warrant--not necessarily or usually before the 
warrant was issued--so as not to delay the process, but at 
least afterward, analogous to what happens in the ordinary 
criminal process where there is the opportunity to challenge 
the legality of a search or surveillance after the fact, and 
the evidence can be excluded.
    Isn't it often the case, let me ask you, Judge Wald, that 
judges fail to see important or novel issues without counsel 
saying, in effect, this issue is critical, it is decisive, it 
is unresolved by other courts, or resolved badly? Don't judges 
benefit by hearing that argument to be made by counsel?
    Judge Wald. Yes, Senator, they certainly do. Because I was 
forewarned that this might be a question, I did a very brief 
look at some of my own experience in 20 years on the DC 
Circuit, and I looked at only one year's opinions which I was 
involved in. There were 33 opinions in that particular year in 
the 1980s. And seven times out of the 33 opinions which I wrote 
that year--and I was only one of ten judges. I do not know what 
the record would be of the other nine judges--but seven of 
those opinions were sent back to the district court because the 
district court had not discussed what we considered to be an 
important legal matter. And I would say that that number might 
even be low because, as you well know, there is a doctrine in 
the regular courts that if you did not raise it down below, you 
cannot raise it on appeal.
    But, yes, it was a not totally infrequent occasion, despite 
the obvious fact that all of our cases did have counsel on both 
sides, and even with that kind of protection, there still were 
missed items--I would say especially in the regulatory complex 
cases, which had a lot of different issues involving 
technology. I just could not help copying one sentence from one 
of these monstrous EPA cases in which the court of appeals 
said, ``This is the first challenge to the new source 
performance standards since the passage of the 1977 amendments. 
Therefore, the court was surprised that neither party raised 
during the discussion below the appropriate standard of law. In 
that discussion, they did not even mention the fact of a new 
major legislative effort.'' So, I mean, even with the best kind 
of counsel, it can happen.
    Senator Blumenthal. Issue spotting is a challenging 
    Judge Wald. Yes.
    Senator Blumenthal. Even with counsel. And without it, 
reliance on a judge is often hazardous. I have never been a 
judge, but I have litigated for a number of years, and I have 
always been astonished at how cases that I have tried may raise 
issues on appeal that I thought were insignificant below, and 
sometimes decided by a ruling without an opinion. But I think 
that the reason that I propose the constitutional advocate be 
involved in every decision that she or he thought was 
significant was to give the court the benefit of that kind of 
additional insight and guidance and perspective.
    I am going to turn to my colleague Senator Grassley and 
then to Senator Franken for his questions.
    Senator Grassley. Thank you.
    I am going to ask Ms. Brand a question, but Ms. Cook, if 
you want to follow up with anything, you are welcome to do 
    Ms. Brand, you and Ms. Cook disagreed with the Board's 
analysis and conclusion in a few key areas, including its 
conclusion that the bulk metadata program is not authorized 
under Section 215.
    Question: Can you explain why you disagree with the Board's 
analysis and conclusion on this point and why you believe that 
the program is lawful?
    Ms. Brand. Sure. Thank you, Senator Grassley. You know, I 
think the statutory question is difficult. It is not a simple 
question. It is certainly one on which reasonable people can 
differ. But at the end of the day, I would agree with every 
single federal judge who has considered the statutory question, 
all of whom have upheld the program.
    There is a lot to say about the Board's 40- to 50-page 
legal analysis on this subject, but just one thing that 
concerns me about their analysis is that it seems to disregard 
the difference between national security investigations and 
criminal investigations. One example of that is in the Board's 
analysis of whether the relevance standard in the statute is 
met. In that discussion, the Board says a grand jury subpoena, 
which, as you know, also has a relevance standard, has never 
been used to collect the volume of data that is collected under 
the 215 program. And that is just not the right question to ask 
because relevance is contextual. You have to ask, ``Relevant to 
what?'' And in the grand jury context, information has to be 
relevant to a criminal investigation, which is retrospective 
and comparatively narrow.
    In the FISA context, under Section 215, information has to 
be relevant to an ongoing FISA investigation. That is a long-
term, proactive, preventive intelligence investigation into an 
entire terrorist organization, and so it should not be 
surprising that a broader volume of data would be relevant to 
that than would be relevant to your typical criminal 
    Senator Grassley. Okay. Ms. Brand, you and Ms. Cook also 
disagreed with the Board's conclusion that the program should 
be shut down as a policy matter. The Board found that the 
program's risk outweighed its benefits, but in your written 
statement, you appeared to challenge both sides of that 
equation. You wrote that the program's actually intrusion on 
privacy is small and that its benefits cannot be measured 
solely by how many terrorist plots it directly disrupted.
    Question: Can you explain in more detail why you disagreed 
with the Board's policy decision and conclusion that the 
program should be terminated and why you believe that it is 
worth preserving?
    Ms. Brand. Sure. The question boils down to whether the 
privacy implications of the program outweigh the national 
security benefits, and I think the Board's report both 
overstates the privacy implications and understates the 
    On the privacy side, it is useful to stop for a minute and 
think about what the program is. It is not collection of 
content of any communication. The government cannot listen to 
anyone's phone calls with this program. It is literally a 
series of phone numbers and the times they called other phone 
numbers with no names or any other personally identifying 
information attached to any of them. It is just a bunch of 
    The uses of it are also really limited. The government 
cannot look at the information in the data base unless they 
have a particular phone number that they have evidence is 
connected to terrorism. And then they can look in the data base 
to see which phone numbers talked to that phone number. Again, 
no names. So that exercise in connecting phone numbers to phone 
numbers is what this program is about.
    In addition, you have the numerous levels of oversight of 
the program. The use of the program is incredibly strictly 
limited. And if you take all of that plus the additional 
restrictions that we recommended be imposed, I think the 
intrusion on privacy is very small.
    On the value side, I said exactly what you said, which is 
that whether this program has thwarted a particular plot lately 
is not the only question. You have to look longer-term into 
whether the next time there is a large-scale terrorist threat 
against the United States, could this program prevent it, and I 
think the answer is clearly yes, there is the potential for 
    You also have to remember that preventing a terrorist 
attack is not the only measure of value. It is also valuable 
when the government can determine there is no terrorist threat. 
So if you had, for example, a situation where there was 
evidence of a terrorist plot abroad and the government was 
trying to figure out if there is also a domestic threat, if the 
government can determine there is no domestic threat, then they 
might not have to take an action like grounding all the 
airplanes in the United States. And that is also valuable, I 
    Senator Grassley. Okay. Ms. Cook, the Board concluded 
unanimously that the bulk metadata program is constitutional, 
but neither you nor Ms. Brand joined the extended analysis of 
this question that is contained in the report. Did you find 
this a difficult or close constitutional question, number one? 
And, number two, could you explain why you did not join the 
analysis of the three other members of the Board?
    Ms. Cook. Thank you for the opportunity to answer that 
question. As to the Fourth Amendment, the Board was unanimous 
that the program does not violate the Fourth amendment. Smith 
v. Maryland is the law of the land, and the Board was unanimous 
that the government is entitled to rely on that precedent.
    I declined to join the Fourth Amendment section as it was 
primarily an extended discussion of a potential evolution in 
Fourth Amendment jurisprudence. I did not find persuasive the 
Fourth Amendment analysis, the prognostications particularly, 
as it depended very heavily on a sole concurrence in the Jones 
decision. I do not think that is an indicator necessarily of 
where the Supreme Court is going.
    As to the First Amendment, I could not join that analysis 
as the First Amendment analysis was of programs that simply do 
not exist. As Ms. Brand has explained, the program here is 
simply about numbers calling numbers. It is not associated with 
individuals' information. The majority, nonetheless, talks 
about the NSA painting complete pictures of every American's 
associational activities. As that is not the program we were 
analyzing, I could not join the First Amendment analysis.
    Senator Grassley. Mr. Medine, I will ask you my last 
question. The Board's report recommends the creation of an 
advocate to participate in the FISA Court process. The report 
recommends: one, that the advocate should come from a pool of 
attorneys outside the government; two, that the FISA Court 
should retain control over whether to call upon the advocate in 
a matter; and, three, the advocate should not participate in or 
review all applications filed by the government.
    Two questions together. Could you walk through why the 
Board felt strongly about each of these issues? And, second, 
did the Board meet with any judicial representatives or did 
their views play a role in shaping the Board's recommendations?
    Mr. Medine. Thank you, Senator Grassley, for the 
opportunity to respond.
    Just answering your last point first, the Board held two 
public workshops, as I mentioned earlier, and we took testimony 
from two former FISA judges, Judge Robertson and Judge Carr. In 
addition, the Board met in private session with former FISA 
Judge Bates. And so, yes, we had discussions with former judges 
in helping form our views of those questions that you have 
    The first question you raised is having the lawyers, the 
special advocates, be outside the government. We felt that it 
was important that they be independent and bring a fresh view 
to these issues, and the alternative of seating them in the 
executive branch, which is where the government is already 
making the request of the FISA Court, so we thought to be more 
independent it made sense for them to be not part of the 
executive branch. And, likewise, it does not make sense to have 
an advocate be part of the judicial branch, which is supposed 
to be a neutral arbiter of these issues.
    So we concluded that the best way to bring a fresh 
perspective to raise legal and constitutional concerns was to 
have a panel of outside private lawyers, chosen by the chief 
judge of the Court, with the appropriate clearance or able to 
get clearance, and work space, to address these important 
questions in appropriate cases, which, I guess, turns to the 
second question, which is in regard to giving the judge control 
over the cases. We felt that certainly in everyday, routine 
cases there was not a need for a special advocate. The judges 
have testified to us that they are very capable in handling 
those, much the way they handle search warrants, ex parte in 
regular proceedings. It is the novel programmatic approvals 
involving novel technical and legal issues where the judge's 
role is challenging. And so we wanted to give judges authority 
to invite the special advocates in those cases where the judge 
deemed it appropriate.
    We do want a reporting mechanism to make sure the judges 
exercise that authority appropriately, and so since the 
government is supposed to designate those significant cases in 
advance, we would like the Court to report on how many cases 
were designated in that fashion, and in such cases, how many 
was a special advocate appointed.
    Likewise, there are also cases that do not, on their face, 
appear to present novel or technical issues, but the judge may 
know that they raise important questions, and we wanted the 
judge to be free, even in those cases, to invite in, to have 
discretion to expand the pool, and also discretion as to when 
it is appropriate to bring someone in.
    And, again, I think I answered your last question, which is 
that not all applications, because probably a significant 
majority of the cases are routine and do not require the role 
of an advocate and it might actually slow the process down. But 
in significant problematic approvals like the 215 program and 
others, where the judge is almost acting like an administrative 
agency in approving a program, the judges themselves said they 
would value an outside opinion being brought in.
    Senator Grassley. Thank you, Mr. Chairman. Thank you, 
    Senator Blumenthal. Thank you, Senator Grassley.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, and I would like 
to thank the Oversight Board for its work.
    All my questions are basically on transparency. On page 190 
of your report, you stated that, ``Transparency is one of the 
foundations of democratic governance.'' And I could not agree 
more. However, it has been eight months since the Snowden 
leaks, and the government still has not given the American 
people even a rough estimate of how many people have had their 
information collected under Section 215 or how many numbers 
have been collected. And under current law, the government does 
not have to.
    I have a bipartisan bill that would fix this, the 
Surveillance Transparency Act. It would mean that the 
government would have to say how many numbers, how many 
people's numbers, have been collected and how many have been 
queried, how many people have been queried.
    Recommendation 9 of your report echoes my bill. It says the 
government should give the American people a more detailed 
report about Section 215.
    What specific information should be included in these 
public reports, do you think? And do you think this reporting 
should be required by law? Anyone can take this. Mr. Dempsey? 
Mr. Medine? Ms. Brand?
    Mr. Dempsey. Senator, I think the recent agreement by the 
Justice Department to allow companies to disclose more 
information did not actually address the bulk collection 
    Senator Franken. Right.
    Mr. Dempsey. And assuming I understand your question 
correctly, the problem is that once anybody publishes a number 
saying a million of our customers are affected, then that 
basically says there is a bulk collection program directed 
against this entity. And I believe that is sensitive 
    I think a better way to address the bulk----
    Senator Franken. Wait a minute. When you say ``the 
entity,'' you mean the company?
    Mr. Dempsey. Yes.
    Senator Franken. Okay. But that is sensitive information in 
the sense that--first of all, the companies would like to be 
able to say that. They would like to be more transparent. They 
have endorsed my bill. They support my bill.
    Mr. Dempsey. Honestly, I think there may be a split between 
what the telephone companies want to do and what the Internet 
companies would want to do. I am not sure about that, but I do 
see a legitimate security concern about naming or identifying 
or singling out----
    Senator Franken. But you do not have to single out. The 
government can say how many--all it can say--it does not--it 
just says how many numbers are caught up in the bulk 
collection. So it is not singling out a phone company. It is 
not singling out----
    Mr. Dempsey. Well, but I think the better way to get at the 
question on the bulk side is to have a statute that either 
clearly authorizes bulk collection or does not authorize bulk 
collection. The fundamental conclusion of the Board majority 
was that the statute as you read it does not read like a bulk 
collection statute. And if we are going to authorize bulk 
collection, then we should have a statute, in my view, designed 
for that purpose and explicitly setting out the parameters of 
what a bulk collection program would look like.
    To me, that kind of legislative transparency is honestly 
more important than operational transparency. And here we are 
only talking about bulk collection, which, again, to my mind 
presents a unique question about what the government says about 
when it is doing it and----
    Senator Franken. Okay. Let me go to Mr. Medine. Thank you.
    I am asking what the government reporting should be, and 
assuming that we keep the bulk collection--which I am not 
necessarily assuming, but if we do, to me it makes sense that 
the government says how many numbers have been collected and 
how many have been queried? What is your opinion on that, your 
    Mr. Medine. Our report certainly calls for greater 
transparency by the government in how many requests it makes 
under each of its surveillance programs that are authorized by 
Congress. When you get down into the details of how many 
people's information is gathered, that is not always an easy 
thing to determine. Even in the phone records program, 
multiple--I could have multiple phone numbers. So calculating 
how many----
    Senator Franken. Well, you could say how many numbers have 
been caught up, right?
    Mr. Medine. Right. There certainly could be greater 
    Senator Franken. That is easy to do.
    Mr. Medine. Yes. I think the tradeoff--and it is program by 
program--is in some cases there are national security concerns 
that if we reveal that we are collecting a certain number of--
amount of information under a particular program, we may have 
tipped off to potential terrorists how to not communicate under 
that program anymore because now the government is collecting 
    So I think there is a balance to be struck, and the 
government has just negotiated an agreement----
    Senator Franken. Can't you put a rough estimate on how 
many--I mean, if you say, you know, this many numbers we are 
collecting data on in our bulk collection, and Americans--see, 
my feeling is this: that Americans basically distrust executive 
power, and if they are not given enough information to make a 
decision for themselves about the legitimacy of things, then 
they will assume that the power is being abused. And to me it 
would make--I do not think you would be giving anything away if 
you said this many millions of numbers are having their--or 
tens of millions are having their numbers, data collected about 
them, and this many thousands are being queried. Do you really 
think that would----
    Mr. Medine. I think in some circumstances it could, and I 
think the recent----
    Senator Franken. Give me a circumstance.
    Mr. Medine. Well, if you have a collection of some program 
on the Internet and we review----
    Senator Franken. I am talking about the----
    Mr. Medine [continuing]. Phone records----
    Senator Franken. Yes. I am talking about the bulk data. 
That is what I am talking about.
    Mr. Medine. If we reveal how many phone records we are 
collecting, it might indicate which records we are not 
collecting, for instance, and so that might tip off people 
about safer methods of communication.
    Senator Franken. If you said we are collecting information 
on 80 million numbers, does that tell you anything about what 
we are not collecting?
    Mr. Medine. It might.
    Senator Franken. Really?
    Mr. Medine. It depends on the number of companies offering 
those services and the number of customers they have. But we 
think that there is--transparency is clearly important. That 
was a major part of our report. FISA Court decisions should be 
made public. The government should reveal its surveillance 
efforts. And the laws that Congress passed should clearly 
reveal the authorities under which those programs operate. But 
we do think that there are some potential national security 
concerns, and the agreement the Justice Department reached with 
the companies, say, for instance, to not allow reporting for 
two years after a new program is instituted might provide some 
guidance on how to balance those important--both important--
concerns of transparency and national security.
    Senator Franken. Okay. Well, I hope we have a second round. 
Thank you. I am sorry I am over my time.
    Senator Blumenthal. Thank you, Senator Franken. We will 
have a second round, assuming that we can do it before the 
votes occur at 11:30.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome to 
all of you. It is good to see you all again.
    Anybody can answer this question. I want to thank you all 
for your service on the Board and contributing to this report. 
I would like to start with an issue that has received less 
attention than the NSA surveillance program, and that is the 
Foreign Intelligence Surveillance Court, or the FISC. Now, the 
Board unanimously recommended that the Court take full 
advantage of existing authorities to obtain technical 
assistance and legal input from outside parties, such as 
properly cleared outside lawyers. The Court can do that now, in 
my opinion, without any new legislative authority.
    Does the Court take advantage of that assistance? Any of 
    Mr. Medine. I think the Court certainly has access to the 
government's technology experts in gathering information. 
Beyond that, I cannot really say what the Court has done.
    Senator Hatch. Anybody else care to comment? Yes, Judge 
    Judge Wald. Among the former and current judges of the FISA 
Court that we did talk to, we had one judge tell us that he did 
not think it was clear to all the judges how or to what extent 
they could take advantage of outside help. There have been, I 
believe, few instances--there was one amicus in the review 
court of the FISC Court, and there has been a more recent 
situation in which they have allowed an outside group that has 
petitioned to file a written presentation. But it was not 
clear, and we know of--I know of no examples where they did 
take advantage of outside technical----
    Senator Hatch. Okay. Now, the Board unanimously recommended 
some reforms to make the work of the FISA Court more 
transparent. I am skeptical, however, about the recommendation 
that the scope of surveillance authority should be made public. 
The Board was divided on that issue, as I recall, and I am 
concerned that publicly outlining surveillance collection 
methods may compromise the investigative techniques employed by 
intelligence and law enforcement communities and ultimately 
pose a risk to national security.
    Yesterday the Director of National Intelligence issued, 
pursuant to Presidential Policy Directive 28, the list of 
permissible uses of intelligence collected in bulk. Now, it 
seems to me that making public the purposes for which the 
government uses intelligence rather than the methods it uses to 
collect that intelligence strikes a better balance, and I would 
like your comment, perhaps from someone on both sides of the 
issue, if you could.
    Ms. Brand. I can start by explaining why I did not sign on 
to the 12th recommendation, which is, I think, what you are 
referring to.
    Senator Hatch. Right.
    Ms. Brand. I agree with the majority in principle that, 
where programs or the outlines of programs or the purposes of 
programs can be revealed, they should be; but there is an 
important caveat to that, which is it has to be done consistent 
with the national security. I do not think that a program's 
legality depends on whether it has been disclosed to the 
public. And I was concerned that that is what the Board's 
recommendation implied.
    I think that in our democracy, where we rely on committees 
like this one and on the intelligence committees to do 
oversight, there are necessarily going to be some things that 
occur in private, and that is permissible.
    Ms. Cook. I also would say I think it is difficult to draw 
conclusions about what can safely be disclosed publicly from 
the Section 215 disclosures given that they followed the 
wholesale leak of the program. So I think we need to address 
this prospectively and taking into serious account what the 
potential damage could be from disclosure of previously 
classified programs.
    Senator Hatch. Okay. Well, I am happy to welcome you all 
here again. Judge Wald, you and I were together a long time 
    Judge Wald. Yes. I think we go back 30 years, if I----
    Senator Hatch. I think we do, and I am just happy to have 
all of you here and I----
    Judge Wald. I was just going to add----
    Senator Hatch. Go ahead.
    Judge Wald. On the transparency, our recommendation, the 
majority's recommendation, I think was fully cognizant of the 
fact that we in no way wanted the methods, operational details, 
or even the existence of a particular operation to be 
automatically disclosed. We did have testimony, actually, from 
a former Ranking Minority--Ranking Minority/Majority as it 
changed--Member of the House Intelligence Committee that the 
so-called framework and purpose of many of the programs could 
be disclosed by carefully drawing these lines, and let me just 
give an example.
    Now, we are just about to begin, or have begun, our report 
on Section 702 of the FISA Act, which deals with the collection 
of communications, one side of which may be in the U.S. and one 
side of which is foreign. And that amendment, which allows this 
program was openly debated before this body and before other 
bodies. Now, we have just begun the investigation. I am not 
about to try to preview any of our conclusions. But I will say 
this: The fact that how the program would operate in terms of 
the courts approving a target or minimization and what kinds of 
categories of material could be put in the targeting, many of 
these things are right in the statute or in the legislative 
history in the reports that accompany it.
    Now, my belief is that--again, we have only begun our 
investigation, but that the government itself has said that the 
702 program has been very, very valuable to it and has said, 
certain representatives of the government, much more valuable 
actually than----
    Senator Hatch. My time is running out.
    Judge Wald. Yes. That is my point.
    Senator Hatch. Let me just mention this. Ms. Brand and Ms. 
Cook, it has been suggested that you believe the metadata 
program might be illegal. Now, is that a fair characterization 
of your position? Each of you can speak to the matter.
    Ms. Brand. No.
    Ms. Cook. No.
    Senator Hatch. Why not?
    Ms. Brand. I was explaining earlier to Senator Grassley 
some of my reasons for thinking that the statute's language can 
support the program. I think what people are reading too much 
into is my statement that reasonable lawyers can differ on 
this. It is not the clearest-cut of questions, but at the end 
of the day, I think that the program is legal. That is my 
    Senator Hatch. Okay.
    Ms. Cook. Similarly, I believe that the program is 
authorized. Ms. Brand had noted a concern with the majority's 
approach to relevance. I think there are a number of concerns 
that I have with the majority's legal analysis. For example, 
the Board has concluded that Section 215 prohibits providers 
from producing documents to the NSA instead of the FBI. It 
sounds like a technical issue, but the Board has concluded on 
that basis that the Section 215 program is unlawful.
    But if you read Section 215 where it talks about production 
of tangible things, there is no requirement whatsoever that it 
be made to the FBI. The majority has instead cobbled together 
this prohibition and rested its legal analysis on this 
prohibition that does not appear on the face of the statute.
    Senator Hatch. Thank you.
    Mr. Chairman, if I could just ask one other question, 
because I am going to have to leave.
    Let me just shift to the NSA telephone metadata program, 
which has received most of the attention in these hearings and 
in the media.
    Now, Ms. Brand, it is my understanding that the Board is 
unanimous that the metadata program is constitutional, but 
divided on whether it is authorized by statute. Is that a fair 
    Ms. Brand. That is correct.
    Senator Hatch. Okay. In addition to the Board's substantive 
conclusion about whether the PATRIOT Act authorizes the 
metadata program, I wonder whether the Board should have delved 
into that issue at all. And, Ms. Brand, please summarize why 
you think the Board should not have ventured into that area.
    Ms. Brand. Thank you, Senator Hatch. I would be happy to.
    I think a Board like ours, which performs primarily an 
advisory function and is not a court, does not have to address 
every legal argument that is available and has to pick and 
choose and consider the ramifications of what issues it decides 
to address.
    I think, frankly, on the legal question here, the statutory 
question, it is not clear to me what this Board adds. It is not 
as though we are addressing this as a matter of first 
impression. This program has been operating for years. It has 
been the subject of numerous judicial opinions. The legality of 
it will ultimately be resolved in cases that are currently 
pending in the courts.
    But, more importantly, I think where the Board concluded 
also that there is a policy reason for shutting down the 
program, it just struck me as gratuitous and unnecessary to 
also say the program is illegal, because that has a very 
demoralizing and negative effect on the intelligence community. 
You want your intelligence agencies to aggressively protect the 
national security within the bounds of the law. You do not want 
them to be timid and be scared of the rug being pulled out from 
under them by being second-guessed, you know, years later when 
they did everything right by going to the court and operating 
under what they believed to be a legal program.
    So I just thought it was a mistake to address the 
    Senator Hatch. Well, thank you. Mr. Chairman, I am sorry.
    Mr. Dempsey. Senator, may I speak to that point just 
    Senator Hatch. With the Chairman's permission, yes.
    Senator Blumenthal. Go ahead. Sure.
    Mr. Dempsey. Senator, you know, when I first heard about 
this program and the fact that it was authorized by the Court, 
I felt, okay, it must be lawful. We will look at it. Maybe we 
will find some additional tweaks that we can make to it and 
that will be it. If it has been authorized by the Court, that 
is the end of the story.
    But the more we looked at it, the more I came to the 
conclusion--and a majority of the Board came to the 
conclusion--that the program just does not fit within the 
statute, that it was shoehorned into this statute. And I think 
nobody, with all respect to both the executive branch officials 
and the judicial officials, nobody looked at the statute as 
carefully as we did. I think if we had come forward and opined 
on some balancing test or some other aspect and had not looked 
at the statute carefully, people would have criticized us, 
``Well, you did not read the statute.'' I came to this 
conclusion slowly. I came to it a little bit to my own 
surprise. But as you read the statute, the words just do not 
add up to this program.
    And on the constitutional point, I want to be clear. The 
Board's majority report says under application of existing case 
law, Smith v. Maryland and the other third-party record cases, 
if those were to be applied to this program, then you would 
conclude zero constitutional privacy interest in the data-- 
therefore, not unconstitutional.
    The problem is there is no case ever addressing a program 
of this scope until the two most recent district court cases. 
There is no Supreme Court case that ever applied the Smith v. 
Maryland doctrine, the transactional records doctrine, to such 
an extensive program. The bottom line is nobody knows what the 
Supreme Court would say when confronted with such an extensive 
and ongoing program of this kind. That is the bottom line 
constitutionally, I believe.
    Senator Hatch. Well, thank you.
    If I could just ask Miss--Ms. Cook, welcome back to the 
Committee. We have missed you. Do you agree with Ms. Brand that 
the Board should have stayed away from the issue of legality 
and stuck to the policy questions regarding the NSA metadata 
    Ms. Cook. I think the decision to spend such an amount of 
time and----
    Senator Hatch. Could I point out that, as you know, more 
than a dozen federal judges, both on the Foreign Intelligence 
Surveillance Court and on the U.S. district court, have 
concluded that the PATRIOT Act does provide authority for the 
metadata program? Now, the President's Review Group, who 
appeared before this Committee, came to that conclusion. And 
the Attorney General, who also was here just last month, 
strongly holds that position. The Board was split, though, 3-2 
on this, and I just wanted to know: Why was the majority wrong 
on this issue, in your view?
    Ms. Cook. Well, I think there are two questions there. 
First, whether we should have engaged in such an extensive 
legal analysis. As you have noted, this program is subject to 
extensive judicial oversight and is currently subject to 
ongoing litigation in three district courts. We are a Board of 
extraordinarily limited resources, particularly at the time we 
were considering this. The decision to do both a statutory 
analysis and also a Fourth Amendment analysis that really was 
prospective only, had costs. We have not meaningfully begun our 
review of the Section 702 program, nor have we begun to address 
any of the other priorities we had identified since the 
inception of our Board.
    As to the question of whether the legal analysis was 
incorrect, we have discussed the relevance issue. We have 
discussed the majority's view that the records could not be 
produced directly to the NSA, both of which I disagree with. 
And I would also disagree with the majority's analysis on the 
ECPA issue.
    As you are aware from 2001, one of the primary purposes of 
the amendments in 2001 to Section 215 was to eliminate any 
notion that Section 215 could be used for some types of records 
but not for other types of records. The legislative language--
uses the term ``any tangible things.'' The majority, 
nonetheless, imports from a completely different title of the 
code a modifier of the term ``any.'' I could not join that type 
of analysis.
    And I would also say thus far it is a pleasure to be back 
to the Committee today.
    Senator Hatch. Well, thank you, Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Hatch.
    Judge Wald. Senator Hatch, could I indulge upon a 30-year 
relationship to address very briefly----
    Senator Hatch. Sure.
    Judge Wald [continuing]. A few of the points here.
    Senator Hatch. I have watched you all that time, by the 
    Judge Wald. It has been a mutual watch.
    Senator Hatch. Yes, I know.
    Judge Wald. Anyway, I would simply like to point out that 
our governing statute says, ``The Board shall continually 
review actions by the executive branch related to efforts to 
protect the Nation from terrorism to determine whether such 
actions are consistent with governing laws.'' I think part of 
our mandate has been to look at the consistency of the statute 
with the laws.
    I would also point out that we had requests from a number 
of Senators and a number of Members of the House to look at 215 
and 702, and in each of the letters, it was mentioned that we 
should look at the statutory basis.
    The other point which I think is certainly worth thinking 
about is Rachel Brand's concern, I think a very legitimately 
motivated concern, that if you say that the NSA people--whom we 
were all impressed with their good faith and their diligence. 
If we say that they were operating under a statute which did 
not give them the authority to do what they are, this could be 
somewhat morale destructive.
    I only wish to point out, again, drawing upon my 20 court 
years, the average percentage of times in which an appellate 
court said that the lower court or the agency, and primarily 
the agencies in our cases, that the agencies had operated 
outside the mandate of the statute were numerous. And I think 
it was never suggested that we were saying these were bad 
people or that they had done something that was wrong. It was 
rather that legal interpretations are difficult in complex 
legislation, and the fact that another body may disagree with 
the agencies' take is something which I think these dedicated 
public servants are used to, and I would be very surprised if 
it really decreased their sense of loyalty and dedication.
    Thank you for indulging me.
    Senator Blumenthal. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Let me just ask a timing question first. When did the 
exercise that led to the report that we have in front of us 
    Mr. Medine. It began in June of last year.
    Senator Whitehouse. After the disclosures?
    Mr. Medine. Yes, after the disclosures, a number of Members 
of Congress and the President asked us to conduct a study of 
the 215 program, and we embarked on it almost immediately.
    Senator Whitehouse. You were aware of the 215 program at 
the time?
    Mr. Medine. Prior to the unauthorized disclosures? I only 
joined the Board in late May, and I was not----
    Senator Whitehouse. Was the Board aware of the 215 program 
beforehand? Did you have----
    Judge Wald. As I recall, Senator Whitehead----
    Senator Whitehouse. Whitehouse.
    Judge Wald. Yes.
    Senator Whitehouse. It is okay.
    Judge Wald. We learned of the program shortly before that. 
I cannot give you an exact date, but I would put it at a month 
or several weeks before.
    Senator Whitehouse. Why do you suppose that is, since you 
have the authority to continually review all of these programs? 
Why was it that you were not aware of this until just shortly 
before that?
    Ms. Brand. Our agency consisted--before Mr. Medine was 
confirmed, our agency consisted of four part-time members who 
could work on PCLOB work about one day a week with no staff, 
and so we were struggling merely to get stood up and start to 
meet with the agencies about a variety of programs. And so we 
were beginning to learn about programs, but we were nowhere 
near, I think, the volume of intake that we will be at in the 
future. I think that was part of it.
    Senator Whitehouse. So as far as you are concerned, nothing 
was withheld from you. It was just that you did not have the 
aperture to grind through all the different programs.
    Mr. Dempsey. Senator, we had a briefing scheduled on 215 
before the Snowden leaks, and the person was hit by a bus the 
weekend before he was due to brief us, and we had to cancel the 
briefing. He was not hit by a bus. He was in a car accident.
    Ms. Cook. We have seen no indication that there was an 
effort to withhold information about this program either prior 
to the disclosures or subsequent to the disclosure.
    Judge Wald. I think we learned----
    Senator Whitehouse. So the gap is actually on your end in 
terms of having the capacity to look into the breadth of 
various programs.
    Judge Wald. I think I would just add that this was a fairly 
tumultuous year in which the four of us with no staff went 
racing around trying to learn as much as we could about a 
variety, a wide variety of programs by many different agencies, 
not just NSA, the one question or the one thing I learned most 
was that you have to know how to ask the right questions. If 
you ask the right questions, the information is forthcoming. We 
had no instance where they said, ``We will not tell you'' or 
``We absolutely refuse.'' But you do have to know how to ask a 
second round of questions, and we were just getting, I think, 
to that point of sophistication when the----
    Senator Whitehouse. And you had gone into operation as a 
body when?
    Judge Wald. I am sorry. What?
    Senator Whitehouse. As a body, you had gone into operation 
on what date?
    Judge Wald. Sometime in August we were confirmed, in the 
prior August.
    Mr. Dempsey. August 2012.
    Judge Wald. Yes, and then shortly thereafter, we were sworn 
in. So I would say----
    Ms. Cook. But there is an idiosyncracy to our statute that 
I would point out, which is that only the four part-time 
members were confirmed in August 2012. Only the Chairman has 
the statutory authorization to hire staff or an executive 
director, and Mr. Medine was not confirmed until May 2013. So 
we did not actually have the statutory capacity to hire staff 
or an executive director, to say nothing of our attempts to 
find office space, Internet, everything that needs to be done 
for a fledgling agency.
    Senator Whitehouse. So that takes me to the question of an 
independent advocate who could appear in the Foreign 
Intelligence Surveillance Court representing a public interest. 
I think there is pretty broad agreement that that is a good 
idea. When you get into the details of how that individual gets 
managed and supervised, I get more anxious. I think if the 
person is an appointee of the chief judge of the Court or the 
Chief Justice of the United States, they risk becoming the pet 
lawyer of that individual. I think if the Court can call on 
them or not at its discretion, there is the risk that they get 
completely marginalized when they may have something useful to 
say. If they are not supervised by somebody, there is the risk 
that you have just created a sinecure for some individual or 
small group of individuals, and that as long as they appeal to 
the political galleries that are watching their behavior 
adequately, they stay on even long after they have become 
ineffective and not noteworthy to the Court any longer because 
they are ineffective.
    There are all these dangers of how you keep that focus and 
how you keep that task properly done. Make the case for why you 
all should be the oversight in the context of those dangers.
    Ms. Brand. We have not suggested that we should be the 
oversight for the special advocate. I know some have suggested 
that we be the body to appoint the members, a pool of special 
advocates or appoint a special advocate. We intentionally did 
not recommend that, in part because we have an oversight 
function of the agencies involved in----
    Senator Whitehouse. Okay. I am sorry. I misunderstood. I 
thought that was your suggestion.
    Ms. Brand. No.
    Mr. Medine. We have recommended that the Court choose from 
private attorneys to act as a special advocate in appropriate 
cases, and then that there be reporting as to when the Court 
exercises its jurisdiction to bring those parties in.
    Senator Whitehouse. How do you avoid the pet lawyer or the 
sinecure effects in that circumstance?
    Mr. Medine. We thought long and hard about where to put the 
special advocate. We thought first about the executive branch. 
We were concerned that it is the executive branch that is 
approaching the FISA Court for authority, and so it did not 
make sense to have the executive branch arguing against itself. 
We then thought about the judiciary, and, again, the judiciary 
is supposed to be an independent arbiter, and it did not make 
sense to have them be the house of the special advocate. And so 
we thought having a private outside attorney who would have the 
independence to come in and make those arguments, and hopefully 
with some transparency about who is chosen as an advocate so 
the public can know who is involved, and also transparency 
about when they are chosen to participate, we thought struck 
the right balance between independence and accountability.
    Senator Whitehouse. It is a worrisome question to me, and I 
confess I do not have an answer to it in mind myself. But when 
you dive into something that is so inherently private and 
classified as this kind of activity, the ordinary controls--a 
lot of the ordinary controls--vanish, and that leaves some sort 
of small ``P'' political dynamics that can begin to take over, 
and I think every one of us has probably, at some point in our 
lives, had the experience of seeing somebody move into a 
position akin to this and dine out on it for the rest of their 
lives without producing much value.
    Mr. Medine. Well, again, that is where we hope that the 
rotation of the judges will play a role in that. We have also 
tried to empower the special advocate to have more appeals--
take cases on appeal, so there is greater oversight of the 
process. But there is certainly a challenge there, but, again, 
we tried to strike what we thought was the best balance between 
the competing concerns.
    And, also, I guess it is worth keeping in mind, at least 
from what we have learned, that the cases in which a special 
advocate is appropriate do not happen all that often, and if 
you institutionalize the person, then they are out there trying 
to figure out what to do with their job as opposed to bringing 
in outside attorneys just on a case-by-case basis we thought 
made more sense.
    Mr. Dempsey. Senator, I think what we tried to do is to 
create an incremental improvement in the current structure, a 
relatively lightweight system, and to surround it with some of 
the reporting that is already inherent in the FISA oversight 
process. That is, already the Government is required to report 
to this Committee and the intelligence committees on 
significant opinions issued by the Court. We would supplement 
that by saying, ``Was the special advocate invoked in that 
case?'' We recommend that that reporting come to us as well.
    And we did think that the judges genuinely wanted this 
capability. In our discussions with the former judges of the 
Court that we talked to, it seemed that they genuinely wanted 
the ability to call upon a special advocate in certain cases. 
So I think our recommendations add up to that--some internal 
checks and balances on the system. The government is currently 
required to notify the Court when there is a significant issue 
posed in a case. That is one triggering point. The judges 
themselves, we did conclude, are genuinely alert to those 
cases. They might not see all of them, but alert to them. Then 
there is the reporting to this Committee after the decisions 
are made and the question, was there the advocate, so you 
begin--you do not institutionalize it. I think that you could 
have a good enough workable system that would significantly add 
to the credibility of the process, without an institutionalized 
weighty structure.
    Senator Whitehouse. I have gone well over my time, and I 
have two distinguished colleagues here whom I am trespassing 
upon. I would be delighted to have another round to continue 
this discussion. I yield back now.
    Senator Blumenthal. If we have time, we will have another 
round. Thank you, Senator Whitehouse.
    You know, I first of all want to come back to a point that 
Mr. Medine made that we should be immensely grateful to our 
intelligence community for the courageous and able contribution 
that they make to protecting our national security. And I said 
it yesterday when the Armed Services Committee heard testimony 
from Director Clapper. We frequently emphasize the failings 
because we do not always see the successes. And we should be 
mindful of the courage and dedication that they demonstrate day 
in and day out, some of them in harm's way.
    You know, I may be the only person on this Committee who 
feels this way, but I believe that the disclosure that only 30 
percent of these records are actually collected and that the 
proportion has plummeted since 2006 is a real game changer. It 
calls into question the entire rationale for the metadata 
collection program. And as a matter of process, it really 
raises the question of credibility for the U.S. Government in 
the representation that it has made to the FISA Court, its 
failure to correct a representation that evidently it made in 
2006 that 100 percent of these records were going to be 
collected, representations made to the district courts that are 
currently considering this issue.
    To quote the Deputy Attorney General in testimony that he 
gave in July to Congress, Deputy Attorney General James Cole 
said, in justification for this program, ``If you are looking 
for the needle in the haystack, you have to have the entire 
haystack to look through.''
    I am just a country lawyer from Connecticut, but if I went 
to a judge--and as a prosecutor, I did--and I said, ``We need a 
search warrant to look at the whole house because we believe 
there may be incriminating evidence in this house, and we need 
to search through every room, and that is why we are asking for 
the warrant to search the whole house.'' And then the police, 
under my authority, went to the house and only looked at maybe 
a few rooms and decided either they did not have time or the 
rooms were dark or some were locked, I would feel an obligation 
to go back to the judge and say, ``Your Honor, we need to at 
least tell you about the search,'' and I could think of a 
number of analogous situations comparable to it. And the 
question of whether the whole house needs to be searched is in 
    In this instance, the rationale for this program is that 
all of the data has to be collected so that connections can be 
made, algorithms can be applied, analysis can disclose whether 
or not there are communications that may raise national 
security concerns.
    So I guess my question to the panel, and particularly to 
the dissenters, Ms. Brand and Ms. Cook, doesn't this disclosure 
that only 30 percent of these records were actually collected 
because of the explosion in cell phone use, a legitimate 
reason, perhaps, that the government was unable to collect all 
of them, raise questions not only about the efficacy of the 
program but also about its legal foundation?
    Ms. Brand. I think for the reasons that the Chairman 
explained, it is touchy for us to talk about this because I am 
not clear exactly on what is classified and what is true, and 
so we cannot get into that here. But on a prospective basis, if 
there were an institutional reason why the government would 
only be able to collect 30 percent of the records and that is 
it forever, that would diminish the value of the program from 
what it would be if they collected 100 percent of the record. I 
agree with that.
    You know, another thing that I want to point out is that 
something I said in my separate statement, and I think others 
on the Board agree, is that for any program like this, the 
government should be continually assessing the value of the 
program and whether it has diminished--or it could increase--
but whether it has diminished over time in light of changed 
circumstances, changed behavior of suspects, changed behavior 
of the public, additional legal tools that might be available, 
or other changes in the law, everything, and continually assess 
whether they should continue a program. I think they do that 
already on an informal basis, but I think a more formalized 
process in which the Privacy Board would be involved would be a 
good thing.
    Mr. Medine. And, Senator, we certainly all agree that there 
should be an ongoing assessment of efficacy of these programs. 
But if I could just return to your first point for a moment 
with regard to the dedication of the workers in the 
intelligence community, again, just to restate that, we have 
found them extraordinarily dedicated. And I just want to make 
clear that our recommendations about the legality of the 
program have nothing to do with the good faith in which they 
have operated and the administration has operated and the 
courts have operated with regard to this program. Our effort is 
to take a look--our mandate is to talk about--look at privacy 
and civil liberties and what protections are available. Section 
215 does have protections, and we think on a prospective basis, 
even to the extent the program continues for a short period, 
those protections ought to be in place. And so our effort is to 
look forward, not to impugn at all the good faith of anyone who 
has relied on either constitutional issues or statutory issues.
    Senator Blumenthal. Because we are running out of time, I 
am going to cut short my questions, but just make the 
observation that I believe that the constitutional advocate, 
far from being a lightweight institution, has to be a real 
heavyweight to protect the Constitution. And I would err on the 
side of giving that person or office the resources, the 
authority, the personnel, and ultimately the credibility that 
will enhance the trust and confidence of the American people in 
the constitutionality of this process and its legality.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    I am just a little confused from my first set of questions, 
so I just--because it seems a little at odds with the report, 
and any of you can weigh in on this, please. On page 205--well, 
let me first go on--Recommendation 9 says `` . . . the 
government publicly disclose more detailed statistics to 
provide a more complete picture of government surveillance 
    And then on page 205, you say, `` . . . if a statute such 
as Section 215 continues to be used as the basis both for 
individualized collection and bulk collection, the mere number 
of Section 215 orders could be misleading.''
    So when I asked about transparency before and putting out 
the number of--and right now this Washington Post article is 
speaking to the issue of how many numbers or how many phone 
calls are being collected--and that is collected--it just seems 
to me--and since the number of orders is, as you say, 
misleading, I do not understand your answer. I do not 
understand why revealing the number of numbers that are caught 
up in this collection is not more transparency and does not 
give Americans a better idea of the dimension of this so that 
Americans can decide for themselves what this program is and 
whether it is legitimate or whether it is proper.
    Mr. Dempsey. Senator, you have been a leader on this issue, 
and I do not in any way want to lose sight of what I think is 
substantial agreement between us and probably between all the 
members of the Board and you on the importance of transparency 
and the value of numbers as a component of transparency. I was 
simply responding to what I think is an important, but in some 
ways narrow, question, which is how do we handle numerical 
reporting on bulk collection programs as opposed to numerical 
reporting on targeted programs, which I think everybody agrees, 
and some progress has been made and more could be made on the 
numerical reporting, how many orders, how many accounts 
affected on the targeted side. So that is not what I think you 
and I are talking about now. We are talking about the bulk 
    Senator Franken. Right.
    Mr. Dempsey [continuing]. Where obviously one order or 
three orders or five orders could be meaningless if millions 
and millions of people are affected. On the other hand, we were 
thinking here, what about the next program and the next program 
and the next program? And how do we deal with--again, if 215 
stays as it is--how do we deal with bulk reporting on the next 
program and the next program and the next program?
    Senator Franken. What about the program that exists? This 
    Mr. Dempsey. This is a program that exists----
    Senator Franken. Americans know about this program, and we 
still have not really given them--I mean, the Washington Post 
will put it in an article. Why can't the government tell us the 
number of telephone numbers that are having their data 
collected? And then how many are being queried? That would give 
people some idea of the scope of this program and what it is 
doing. And I think Americans deserve to have that information 
in order to decide for themselves--and I think it would be very 
    And, listen, I agree with both the Chairman and Mr. Medine 
on our intelligence people. I believe that they are doing the 
best job they can. But we have oversight, and part of the 
oversight to me is what you talk about, how important 
transparency is. And I am very confused about what you write in 
your report and what your answer was to my first question in my 
first set of questions.
    Mr. Dempsey. Do not let me hog it here, because others can 
have views. I will simply say I agree on the numbers of the 
queries, that the reporting there has been disclosed and could 
be disclosed.
    Senator Franken. It has been?
    Mr. Dempsey. I am 99 percent sure that the government has 
declassified, at least for one year----
    Judge Wald. So-called RAS----
    Mr. Dempsey [continuing]. The number of queries made 
against the data base.
    Judge Wald. There are 300--yes, actually if I could, 
Senator Franken, one, speaking for myself, I agree that 
Americans, their first and primary question is going to be, you 
know, How big is this? How many Americans are likely affected 
by this program?
    To the extent that this information can be disclosed 
without hurting national security, the burden would be on the 
government to show why it would be a national security problem, 
but to approximate as close as you can get to that number 
without there being any security problems. But as Jim 
suggested, the so-called RASs are used to query this entire 
data bank, and obviously there is some confusion from the 
newspaper accounts as to how big that bank is. But they have 
disclosed that they query it with the so-called RASs, a 
reasonable, articulable suspicion, in the area of 300 times a 
year. What we do not know from that is how many numbers they 
access on a first hop or a second hop or even a third hop. You 
have to be very careful in defining what number you want 
because, as we learned, the way the system operates is this. 
When you get the first hop as to which numbers the suspicious 
number has been in contact with, what happens is the analysts 
look at all the numbers that pop up, and they may look at 
several of them and say, ``That is of no interest to us. We 
know automatically that that is some kind of number that has no 
interest to us, so we will only look at one out of the 12 or 
one out of the 10.'' Or they may look at them all, or they may 
look at some and discard them. And then you go to the second 
hop from all of those numbers, and you get, you know, a wider 
and wider swath.
    But I do think your general notion that Americans are most 
interested in some notion of the scope of people who have been 
affected is one that the government and the Congress and all 
other people should work toward approximating, unless the 
government can show that there is some national security danger 
    Mr. Medine. I also wanted to add that one of the policy 
reasons why we recommended ending this program is that concern 
by Americans that they are being surveiled, and whether it is 
30 percent or 100 percent, knowing that the government is 
collecting your phone calls to your lawyer, to your political 
organization, to a journalist has a chilling effect, and that 
is why we think it is preferable to not have the government 
maintain this bulk data but use other authorities and have the 
information held elsewhere.
    Senator Franken. I know--but no matter where it is held, 
that is problematic. But I know the vote has been called, and 
we have got to go.
    Senator Blumenthal. Senator Whitehouse, did you have other 
questions that you would like to----
    Senator Whitehouse. Perhaps as an observation, but you can 
respond, and if our time runs out, if you want to respond for 
the record, that is fine.
    This is probably the most overseen program in the history 
of the American intelligence community. Setting aside the 
intelligence community, it is probably one of the most overseen 
government programs ever anywhere. It was managed by NSA, but 
it was overseen by the Department of Justice and the ODNI. With 
NSA you had relatively independent bodies like the Inspector 
General, the Office of the Director of Compliance, the General 
Counsel's Office which had important roles in it. It was 
reported quarterly to the President's Intelligence Oversight 
Board. You had a full-time court with multiple judges 
overseeing it. I think they used to say that there were more 
than 30 different congressional committees that had oversight 
authority over it, but certainly the intelligence committees, 
this Committee, equivalent committees in the House all had 
oversight over it. It is hard to imagine how you could apply 
more oversight and have it make an incremental difference if 
you add one more office to the wide array of offices that are 
already engaged in oversight.
    So to the extent that there was an oversight problem, it 
raises, to me, the question more about the quality of the 
oversight and the organization of the oversight rather than the 
quantity of it, because we certainly threw more oversight at 
this program than anything in history. And I just am interested 
in your reactions to that thought. I do not think one more 
patch is going to help when there is such a huge quilt of 
oversight patchwork there already.
    Mr. Medine. I think there are a number of things. One is--
and I do not want to overstate our capabilities, but our Board 
is now an independent agency with high-level clearances, with 
authority to see all the information regarding these programs 
and report our independent views without any review prior by 
the White House or anyone else to the Congress, the President, 
and the public, as we have done with regard to this program. We 
will not be able to be everywhere, by any means. We are very 
small and we will probably stay relatively small. But in those 
areas where we look, we can----
    Senator Whitehouse. The Inspectors General are in the same 
    Mr. Medine. Right. But our focus is on national security, a 
balance of privacy and civil liberties. They have obviously a 
much broader focus. So I think--I hope we can contribute in 
some way going forward. And as we have recommended----
    Senator Whitehouse. Let me not put you in the position of 
trying to defend that you should have some role going forward. 
My point is when you have got this vast array of oversight 
already, the most overseen program in history, adding one more 
thing I do not think is a convincing argument on its own. I 
think that we have got to take a look at the structure of this 
patchwork and array of oversight and see if, in fact, there 
were oversight problems, what do they go back to? I do not mind 
adding you to the equation. That is not my point. My point is 
there is already so much oversight that I cannot believe that 
adding you is going to make a huge marginal difference. It will 
make a good difference, and I do not object to your further 
participation in this. But I really think that to the extent 
that oversight is condemned in all of this, the solution is not 
adding more small elements of oversight to an already vastly 
overseen, multiply overseen--frankly, hard to imagine how you 
could add more oversight to it other than yourselves. I mean, 
every branch of government is covered, every House of Congress 
is covered, the executive branch has multiple redundant 
    Mr. Medine. Senator, if I could, I think you are exact--you 
are 100 percent right. I actually think that is why the value 
of our Board and what needs to be done is, I think what we did 
was we pulled back and said, wait a second, where is the legal 
foundation for this? Upon what structure has all of that 
oversight been created? And we concluded, the majority, that 
the foundation itself was inadequate. And then, I do believe, 
we took, remarkably, the most in-depth look at effectiveness 
and looked, I believe, more closely and probingly at 
effectiveness and again concluded that the program came up 
short. But those two questions--what is the legal foundation 
and what is the effectiveness, despite all of that structure, I 
believe they never really got, in 10 years of this program, 
adequate attention.
    Senator Blumenthal. And I want to take the prerogative of 
the Chair to observe, in response to Senator Whitehouse's 
point, that none of the oversight was adversarial in nature, 
which is why I propose the constitutional advocate. Courts 
always do better when they hear both sides. The process is well 
served when there is contention, as there was within this 
Board. And I might just point out that the dissent by Ms. Brand 
says, in commenting on whether the Board should consider the 
legal question, as you very thoughtfully observed, and I am 
quoting, ``This legal question will be resolved by the courts, 
not by this Board, which does not have the benefit of 
traditional adversarial legal briefing and is not particularly 
well suited to conducting de novo review of long-standing 
statutory interpretations.''
    At least part of that observation can be said of the FISA 
Court and of the legal review and perhaps factual review that 
has been conducted in this program. The oversight may have been 
numerically abundant, but as you observed, Senator Whitehouse, 
potentially lacking in quality.
    So I am going to have to go to the vote. Senator Whitehouse 
moves more quickly, so he may----
    Senator Whitehouse. No, we will go ahead, and I will let 
the Chairman conclude the hearing. I would just note in reply 
that the great adverse relationship that the Founding Fathers 
built into the Constitution was the adverse relationship 
between the legislative and the executive branches, which they 
characterized as one of jealousy and rivalry that was to be 
harnessed for the good of the public. So I would hate to think 
that just because there was not a lawyer in the courtroom with 
a general public interest purpose, that there was not 
adversarialness in all of this. There should have been, and the 
structure of our government creates that adversarialness. And 
if that has not been adverse enough, then that is our fault. 
But it is not the fault of the lack of an additional lawyer in 
the courtroom at the FISA Court.
    Senator Blumenthal. I do not think lawyers are necessary 
for adversarial contention, but I think your point is well 
taken. And I am going to close the hearing, leave the record 
open for one week, and, again, thank the panel for being here, 
for your very thoughtful and insightful and very helpful 
testimony, and again thank our entire intelligence community 
that day in and day out works to grapple with these very 
difficult and challenging questions.
    Thank you, and the hearing is closed.
    [Whereupon, at 11:48 a.m., the Committee was adjourned.]
                            A P P E N D I X


              Prepared Statement of Chairman Patrick Leahy


  Background Information on David Medine, Rachel L. Brand, Elisebeth 
       Collins Cook, James X. Dempsey, and Judge Patricia M. Wald


        Questions submitted by Senator Grassley for David Medine


        Questions submitted by Senator Grassley for Rachel Brand


   Questions submitted by Senator Grassley for Elisebeth Collins Cook


  Questions submitted by Senator Grassley for Chairman David Medine, 
                 James Dempsey, and Judge Patricia Wald


  Responses of David Medine to questions submitted by Senator Grassley


  Responses of Rachel Brand to questions submitted by Senator Grassley


 Responses of Elisebeth Collins Cook to questions submitted by Senator 


Responses of Chairman David Medine, James Dempsey, Judge Patricia Wald 
               to questions submitted by Senator Grassley


   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