[Senate Hearing 113-676]
[From the U.S. Government Publishing Office]
S. Hrg. 113-676
THE REPORT OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD ON
REFORMS TO THE SECTION 215 TELEPHONE RECORDS PROGRAM AND THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
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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U.S. GOVERNMENT PUBLISHING OFFICE
95-461 PDF WASHINGTON : 2015
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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
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESSES
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
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
ANSWERS
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://
www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-
Telephone-Records-Program.pdf.................................. 54
THE REPORT OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD ON
REFORMS TO THE SECTION 215 TELEPHONE RECORDS PROGRAM AND THE FOREIGN
INTELLIGENCE SURVEILLANCE COURT
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.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR
FROM THE STATE OF CONNECTICUT
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
record.
[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.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
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
community.
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
directives.
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
28th.
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
School.
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
School.
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.
STATEMENT OF THE HONORABLE DAVID MEDINE, THE HONORABLE PATRICIA
M. WALD, THE HONORABLE RACHEL L. BRAND, THE HONORABLE JAMES X.
DEMPSEY, AND THE HONORABLE ELISEBETH COLLINS COOK
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
government.
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
available.
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
questions.
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
proceedings.
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
authority.
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
business.
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
that.
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
investigation.
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
benefits.
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
numbers.
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
that.
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
think.
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
raised.
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,
panel.
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
question.
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
information.
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
thoughts?
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
transparency.
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
it.
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
you.
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
Wald.
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
ago.
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
opinion.
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
characterization?
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
illegality.
Senator Hatch. Well, thank you. Mr. Chairman, I am sorry.
Mr. Dempsey. Senator, may I speak to that point just
briefly?
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
program?
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
way.
Judge Wald. It has been a mutual watch.
Senator Hatch. Yes, I know.
[Laughter.]
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
begin?
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
question.
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
operations.''
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
side----
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
is----
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
helpful.
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
there.
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
position.
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
coverage.
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
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Prepared Statement of Chairman Patrick Leahy
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Background Information on David Medine, Rachel L. Brand, Elisebeth
Collins Cook, James X. Dempsey, and Judge Patricia M. Wald
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Questions submitted by Senator Grassley for David Medine
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Questions submitted by Senator Grassley for Rachel Brand
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Questions submitted by Senator Grassley for Elisebeth Collins Cook
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Questions submitted by Senator Grassley for Chairman David Medine,
James Dempsey, and Judge Patricia Wald
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Responses of David Medine to questions submitted by Senator Grassley
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Responses of Rachel Brand to questions submitted by Senator Grassley
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Responses of Elisebeth Collins Cook to questions submitted by Senator
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Responses of Chairman David Medine, James Dempsey, Judge Patricia Wald
to questions submitted by Senator Grassley
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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://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-
on-the-Telephone-Records-Program.pdf