    [Senate Hearing 118-575]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 118-575

                        OVERSIGHT OF SECTION 702 OF THE
                     FOREIGN INTELLIGENCE SURVEILLANCE ACT
                      AND RELATED SURVEILLANCE AUTHORITIES

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 13, 2023

                                   __________

                              Serial No. J-118-20

                                   __________

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    58-969                    WASHINGTON : 2025

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair

    DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina,
    SHELDON WHITEHOUSE, Rhode Island             Ranking Member
    AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
    CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
    RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
    MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
    PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                 Joseph Zogby, Chief Counsel and Staff Director
          Katherine Nikas, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Durbin, Hon. Richard J...........................................     1
    Graham, Hon. Lindsey O...........................................    12

                                   WITNESSES

    Abbate, Paul.....................................................     9
        Prepared joint statement.....................................    46
        Responses to written questions contain classified information
      and are
        not included in the appendix.

    Barnes, George C.................................................     5
        Prepared joint statement.....................................    46
        Responses to written questions contain classified information
      and are
        not included in the appendix.

    Cohen, David S...................................................     7
        Prepared joint statement.....................................    46
        Responses to written questions contain classified information
      and are
        not included in the appendix.

    Fonzone, Chris...................................................     3
        Prepared joint statement.....................................    46
        Responses to written questions contain classified information
      and are
        not included in the appendix.

    Olsen, Matthew G.................................................    11
        Prepared joint statement.....................................    46
        Responses to written questions...............................    60

                                    APPENDIX

    Items submitted for the record...................................    45

                        OVERSIGHT OF SECTION 702 OF THE
                     FOREIGN INTELLIGENCE SURVEILLANCE ACT
                      AND RELATED SURVEILLANCE AUTHORITIES

                                  ----------

                             TUESDAY, JUNE 13, 2023

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:04 a.m., in
    Room 216, Hart Senate Office Building, Hon. Richard J. Durbin,
    Chair of the Committee, presiding.
        Present: Senators Durbin [presiding], Whitehouse,
    Klobuchar, Blumenthal, Hirono, Booker, Padilla, Ossoff, Welch,
    Graham, Grassley, Cornyn, Lee, Cruz, Hawley, Kennedy, Tillis,
    and Blackburn.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,
               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. This meeting of the Senate Judiciary
    Committee will come to order. Senator Graham is on his way and
    sent word that we should start before he arrives.
        Today, the Judiciary Committee will focus on two of our
    most critical responsibilities to the American people:
    protecting our national security and our Constitution.
        At the end of this year, an important and controversial
    surveillance authority known as Section 702 of the Foreign
    Intelligence Surveillance Act, or FISA, is set to expire. It is
    worth taking a moment to recall the history of this program.
        After 9/11/2001, the Bush administration launched a
    warrantless surveillance program without authorization from the
    courts or Congress. Years later, the Committee heard dramatic
    testimony about White House officials pressuring Attorney
    General John Ashcroft from his hospital bed to reauthorize this
    surveillance program. He refused.
        After this surveillance program came to light, Congress
    retroactively authorized it in the FISA Amendments Act of 2008
    as a temporary--temporary emergency tool to combat terrorism.
    That is what became Section 702.
        Today, nearly two decades later, Section 702 is touted as
    critical for a range of purposes, including countering China,
    tracking Russian atrocities in Ukraine, and even monitoring the
    distribution of fentanyl in the United States.
        There is no doubt that Section 702 is a valuable tool for
    collecting foreign intelligence. But, as I have said for years,
    Section 702 also raises serious constitutional concerns. Only
    foreigners abroad may be targeted under Section 702. Let me
    repeat that. Only foreigners abroad may be targeted under
    Section 702. But in the course of gathering intelligence on
    foreigners, our Government also collects the private
    communications of Americans who communicate with these
    individuals abroad.
        How many American communications are collected under
    Section 702? The Government cannot and will not say. What we
    know is that hundreds of thousands of foreigners are targeted
    each year, and likely, billions of communications are collected
    and stored on Government databases. The Government can then
    search these databases for Americans email, phone calls, and
    text messages. All without a warrant.
        Just as a reminder, the Fourth Amendment to the
    Constitution says, ``The right of the people to be secure in
    their persons, houses, papers, and effects, against
    unreasonable searches and seizures, shall not be violated, and
    no warrants shall issue, but upon probable cause, supported by
    oath or affirmation, and particularly describing the place to
    be searched, and the persons or things to be seized.''
        It was my view when this program was first established--
    first authorized by Congress in 2008, and it's my view now that
    Section 702 does not sufficiently protect the privacy and civil
    liberties of Americans.
        That's why I joined with Senator Lee in a bipartisan 2012
    effort to offer an amendment to require a warrant for any
    backdoor search of American communications.
        The Government can then search these databases for emails
    and phone calls, as I mentioned earlier, in what is known as a
    backdoor search. The FBI alone conducted more than 200,000
    warrantless searches of Americans in 2022.
        Since Senator Lee and I offered our amendment in 2012, the
    problems with Section 702 have continued. The court charged
    with overseeing this program has found, quote, ``persistent and
    widespread,'' closed quote, violations of the rules governing
    Section 702.
        In just the latest example, it was recently revealed that
    the FBI has used Section 702 to conduct backdoor searches on
    the communications of Americans who were arrested in the racial
    justice protests following the murder of George Floyd, as well
    as individuals who participated in the January 6 insurrection.
        I understand that recently implemented remedial measures
    have already begun to reduce these egregious violations. I
    understand additional compliance measures are under
    consideration. These are good steps. But Congress also has a
    constitutional responsibility.
        So at the outset of today's hearing, let me say this. I
    will only support the reauthorization of Section 702 if there
    are significant--significant reforms. And that means, first and
    foremost, addressing the warrantless surveillance of Americans
    in violation of the Fourth Amendment.
        Moreover, the reforms must also include safeguards to
    prevent future abuses and ensure effective oversight by
    Congress and the courts.
        Some of our colleagues believe it will be best to let this
    authority expire. Others argue that Congress should reauthorize
    Section 702 with minimal reform.
        As Chair of this Committee, I will work on a bipartisan
    basis to bridge this divide over the coming months. I
    understand the seriousness of this challenge. We can protect
    America's national security and the constitutional rights of
    the American people at the same time.
        Senator Graham has not arrived. I will start with the
    introduction of the witnesses. He may be coming in shortly.
        Today, we welcome five senior officials from the
    administration. Chris Fonzone--I hope I pronounce the name
    correctly--general counsel of the Office of Director of
    National Intelligence. Next, we will hear from George Barnes,
    deputy director of the National Security Agency. We will then
    hear from the deputy director of the CIA, David Cohen.
    Following Mr. Cohen, we will hear from Paul Abbate, the deputy
    director of the FBI. And last, we will hear testimony from the
    Assistant Attorney General for National Security at the
    Department of Justice, Matt Olsen.
        After we swear in the witnesses, each witness will have 5
    minutes to provide an opening statement. Then each Senator 5
    minutes to ask.
        I urge my colleagues to focus their questions on today's
    hearing. In particular, I'd like to emphasize that everyone on
    both sides of the aisle has a responsibility not to interfere
    in the Special Counsel's ongoing criminal investigation of the
    former President.
        Mr. Trump is entitled to the presumption of innocence.
    Attempting to litigate the indictment against him has no place
    in today's hearings. Now, I'd ask the witnesses to stand and be
    sworn. Please raise your right hand.
        [Witnesses are sworn in.]
        Let the record reflect that all of the witnesses answered
    in the affirmative. We'll begin with opening statements from
    ODNI General Counsel Chris Fonzone. Mr. Fonzone, you may
    proceed.

              STATEMENT OF CHRIS FONZONE, GENERAL COUNSEL,
            OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

        Mr. Fonzone. Chairman Durbin, distinguished Members of the
    Committee, thank you for the opportunity to speak to you today
    about Section 702 of the Foreign Intelligence Surveillance Act,
    an important intelligence authority set to expire at the end of
    the year.
        Section 702 is an authority that enables the United States
    to collect critical foreign intelligence on non-U.S. persons
    located outside the United States with the assistance of U.S.
    communications service providers. It provides the United States
    with indispensable insight into a diverse range of issues, from
    the conventional and cyber threats posed by China, Russia,
    Iran, and North Korea to cybersecurity and terrorism threats,
    to the proliferation of weapons of mass destruction, to
    numerous other high priority national security challenges.
        And it provides these insights while simultaneously
    requiring the Government to comply with robust safeguards
    designed to protect the privacy and civil liberties of
    Americans. That's why, in a nutshell, my intelligence
    community, and DOJ colleagues, and I believe the
    reauthorization of Section 702 is so vital.
        Section 702's origins lie in the rapid changes of the
    threat in communications landscape that occurred early in the
    21st century when Congress recognized that the then-existing
    legal framework for collecting intelligence--often referred to
    as traditional FISA--had not kept pace with technology.
        Specifically, when FISA was first enacted in 1978, it was
    primarily designed to regulate activities inside the United
    States. Over time, however, the advent of the internet and
    other technological changes meant that terrorists, hackers,
    spies, and other adversaries operating overseas, but using U.S.
    communication services, were increasingly subject to
    traditional FISA's requirements. Requirements which included
    that the Government must obtain a court order based on probable
    cause to collect those adversaries' communications.
        The operational burden of obtaining those individual court
    orders was unworkable, however, and also legally unnecessary as
    foreign adversaries located overseas are not entitled to Fourth
    Amendment protections.
        Section 702 was Congress' elegant solution to the problem.
    Rather than requiring individual judicial approval to collect
    intelligence on these non-U.S. persons located overseas,
    Congress decided to create an approach that a court would
    approve on a programmatic basis, and that all three branches of
    our Government would help oversee.
        Specifically, for the Government to collect intelligence
    using Section 702, the Foreign Intelligence Surveillance Court,
    an Article III court, must annually review and approve
    certifications submitted by the Attorney General and Director
    of National Intelligence that describe the categories of
    foreign intelligence that the Government plans to acquire.
        Alongside these certifications, the court also reviews the
    detailed procedures containing privacy and civil liberty
    safeguards the Government proposes to follow in collecting and
    using in foreign intelligence under Section 702. And the court
    will only approve these certifications procedures if it
    concludes that they are consistent with both the Fourth
    Amendment and FISA, including statutory protections that
    require the program to be properly aimed at non-U.S. persons
    located outside the United States.
        Even after the court approves the program, the Government
    still cannot collect information on any specific target until
    it complies with detailed rules that require, among other
    things, a documented basis for concluding that the target is a
    non-U.S. person located overseas, and that there is an
    appropriate foreign intelligence purpose for the collection.
        Furthermore, even after the Government starts collecting
    under Section 702, all three branches of our Government engage
    in rigorous oversight of the program. This includes oversight
    from internal components at each agency, DOJ's review of the
    documentation for every targeting decision, programmatic
    oversight from DOJ and ODNI, regular reporting to the FISC, and
    regular reporting and briefings to the congressional
    Intelligence and Judiciary Committees.
        I think it is safe to say that my colleagues and I
    unanimously believe that this program, enacted by Congress in
    2008 and subsequently improved over time, is an essential
    authority. In particular, while I will leave it to my
    colleagues to provide more detail on Section 702's intelligence
    value, I will just note that I think the Attorney General and
    DNI pretty much summed it up in a letter they sent to
    congressional leadership earlier this year: ``Section 702 has
    proven invaluable again and again in protecting American lives
    and U.S. national security,'' they wrote, ``such that there is
    no way to replicate Section 702's speed, reliability,
    specificity, and insight.''
        Likewise, I believe the other half of Section 702's
    equation, its privacy and civil reduced safeguards, have also
    proven their efficacy. To be sure, this does not mean the
    intelligence community has been perfect. To the contrary, like
    any human endeavor, we have made mistakes, including some
    important ones.
        But Section 702 has required us to identify and confront
    those mistakes, disclose them to our overseers and the public,
    and take remedial actions that make us better. This process
    also identifies areas for potential statutory improvement, and
    we are therefore committed to working with Congress on reforms
    so long as they fully preserve the critical intelligence
    Section 702 provides.
        I look forward to answering your questions today and
    working with you to renew this essential authority. With that,
    I will turn it over to my colleague from the National Security
    Agency.
        [The prepared statement of Mr. Fonzone appears as a
    submission for the record.]
        Chair Durbin. Thank you, Mr. Fonzone. We have next NSA
    Deputy Director Barnes. You may proceed.

            STATEMENT OF GEORGE C. BARNES, DEPUTY DIRECTOR,
                        NATIONAL SECURITY AGENCY

        Mr. Barnes. Chairman Durbin, Ranking Member Graham, and
    distinguished Committee Members. I'm honored to represent the
    National Security Agency here today, and I'm grateful for the
    opportunity to speak with you about FISA, Section 702. This
    authority is essential to NSA's foreign intelligence mission.
    Without it, our ability to preserve the Nation's security would
    be significantly impaired.
        The United States is the leader in internet technology and
    U.S. communication services are globally distributed, including
    by use by a myriad high priority intelligence targets. When the
    intelligence community compels the assistance of electronic
    communication service providers under 702 authority, we quickly
    get access to reliable, detailed information that addresses key
    national security information gaps affecting the safety and
    security of our Nation.
        The importance of this authority to our mission cannot be
    overstated. Data from FISA Section 702 helps us every day to
    understand the strategic intentions of foreign governments and
    certain non-state actors who pose threats to our interests.
    This source of intelligence is a big part of what keeps our
    leaders well informed about the threats we face. Fifty-nine
    percent of the Presidential Daily Brief articles include
    intelligence acquired by NSA under 702 authority, and the PDB
    plays a key role in keeping the leadership across our
    Government cited on key threats.
        Countless intelligence community successes would not have
    been possible without 702. We have spoken publicly many times
    about how 702 has supported our counterterrorism mission from
    preventing an attack on New York City's subway in 2009, to
    supporting the operation that took down Ayman al-Zawahiri just
    last year. But 702 has likewise become indispensable across
    NSA's other vital mission areas.
        Let me offer some specifics.
        702 collection identified an Iranian ransomware attack
    against an American nonprofit, and the data we acquired
    provided the U.S. Government with information needed to
    mitigate the damage and recover the victim organization's data
    without resorting to ransom payments.
        Information acquired under 702 authority was essential to
    the recovery of the cryptocurrency ransom paid by Colonial
    Pipeline to the foreign hacker who perpetrated the attack in
    2021.
        Section 702 was vital in warning the international
    community, the private sector, and the public about DPRK
    efforts to commit widespread fraud, including against U.S.
    businesses aimed at generating revenue for their nuclear
    weapons program.
        702 regularly provides intelligence community counterparts
    with critical insights into the fentanyl supply chain, from
    Chinese origins of key precursor chemicals to the efforts of
    foreign narcotic traffickers to smuggle fentanyl and other
    drugs toward the United States.
        702 has also helped us to uncover despicable atrocities
    committed by Russia in Ukraine, including the heinous murder of
    noncombatants, and the forced relocation of Ukrainian children
    to Russia.
        In every facet of our foreign intelligence mission, 702 is
    critical. And that's not just an exaggeration.
        Last year, nearly every item in the President's
    Intelligence Priorities list was addressed in some way, shape,
    or form by 702. It's not replaceable. NSA could not replicate
    intelligence from 702 using other authorities. It's agile,
    specific, and efficient.
        The compelled assistance of U.S. electronic communication
    service providers means that for certain key requirements, we
    can avoid sending our officers into overseas hostile areas to
    mount risky collection operations.
        It means that we can rapidly acquire information about
    targets in remote and denied areas of the world where the
    intelligence community has little or no accessibility.
        It means that when we see a target changing their behavior,
    we can adapt quickly, ensuring that we do not miss critical
    leads and details.
        And importantly, it means that we get narrowly tailored
    information, the data of specific foreign targets located
    overseas communicating information of foreign intelligence
    significance and value. All in a manner defined by the law
    guided by the National Intelligence Priorities Framework and
    scoped by the specific certifications approved annually by the
    FISC.
        Finally, I'll talk a bit about compliance. NSA has a deep
    culture of compliance. I'm proud that our workforce is so
    dedicated to compliance with all the laws and policies that we
    follow, and those that govern our sacred mission, including
    702.
        The DOJ's review and assessment determined that NSA's 702
    targeting decisions have been over 99 percent compliant since
    the last reauthorization. In large part, because we have a
    robust compliance program, including hundreds of dedicated
    compliance professionals working hand in hand with analysts.
        Our compliance team is part of each stage of the analytic
    process, from the initial targeting decision to the review of
    the responsive content supporting the mission and ensuring that
    our culture of compliance is maintained day in and day out.
        Thank you for the opportunity to discuss 702, and what it
    means to NSA. And I'd like to turn next to my colleague, David
    Cohen, from CIA.
        [The prepared statement of Mr. Barnes appears as a
    submission for the record.]
        Chair Durbin. The CIA Deputy Director, Mr. Cohen, you may
    proceed.

             STATEMENT OF DAVID S. COHEN, DEPUTY DIRECTOR,
                      CENTRAL INTELLIGENCE AGENCY

        Mr. Cohen. Good morning, and thank you, Chairman Durbin,
    Ranking Member Graham, and Members of the Committee for
    inviting me to discuss this important topic, and to represent
    the men and women of the Central Intelligence Agency.
        The information the CIA derives from FISA 702 collection
    is, quite simply, indispensable for CIA to perform its mission.
    It allows us with precision and with care for the rights of the
    American public that we serve to gain authoritative, timely,
    and actionable insights into the full range of national
    security threats and foreign policy issues confronting our
    Nation.
        I thought it would be most useful for the Committee to
    focus my opening remarks on some of the ways that CIA uses FISA
    702 collection every day to do our job. I'll focus in
    particular on how we use 702 in our overseas clandestine
    collection and counterintelligence operations, in preparing
    all-source analysis for policymakers here in Congress and in
    the administration, and as part of a Governmentwide response to
    the fentanyl crisis.
        First starting with our operations. As I'm sure you know,
    one of CIA's core missions is to operate clandestinely overseas
    to collect intelligence from individuals we've recruited. These
    individuals, our assets, often risk their lives and the lives
    of their families to provide information to CIA officers to
    help the United States. And my officers who spot, assess,
    develop, recruit, and meet with these individuals often put
    their lives, their safety, and their well-being at risk to do
    their job.
        Because human intelligence operations carry a great deal of
    risk, we often think about human intelligence, or humans, as
    the collection of last resort. The means of collection we turn
    to when no other source of collection can deliver the
    information we need to keep this country safe. Once we've
    reached that point, once we know a human source is necessary,
    we have to find exactly the right person among hundreds, maybe
    thousands of potential candidates.
        FISA Section 702 helps us find many of these individuals,
    these potential sources. And it allows CIA officers to do their
    jobs faster and with less risk. Once we have an operation
    underway, 702 collection helps us keep those operations secure
    by allowing us to identify threats early, and to provide real-
    time monitoring during our most dangerous operations.
        CIA officers face unique challenges and threats from all
    sorts of nefarious actors, from hostile intelligence services
    trying to identify our officers and our sources, to terrorist
    groups who seek to harm, or even kill them.
        We take very seriously our responsibility to protect our
    officers and the people who put their lives on the line to work
    with us as sources. 702 is quite simply a key tool in our
    arsenal to help keep both our officers and our assets safe.
        Section 702 collection plays a critical role in our
    analytic mission, ensuring we can provide the best possible
    all-source analysis to policymakers in the administration and
    in Congress. CIA analysts leverage intelligence from every
    source available: open source information, humans, imagery,
    signals intelligence, and 702 to prepare this analysis.
        Information collected under 702 is a key piece of that all-
    source puzzle, and a particularly important one because of its
    timeliness and precision. The statistics bear this out.
        As I'm sure you know, one of our primary analytic
    publications is the World Intelligence Review, known by its
    acronym, the WIRe. It is provided across the executive branch
    and to Congress.
        In the last year, nearly 40 percent of our daily WIRe
    articles contain at least one intelligence report derived from
    702 collection.
        In our other analytic products for Congress and the
    administration, including the Presidential Daily Brief, the
    numbers are similar.
        Section 702 is, put simply, a critical component of much of
    CIA's analytic product across the gamut of national security
    and foreign policy issues.
        The third way we leverage 702 is to support broader U.S.
    Government efforts against foreign-based drug trafficking
    organizations. 702 collection illuminates the networks and
    global supply chains used by foreign-based drug trafficking
    organizations. This includes how they manufacture and transport
    everything, from precursor chemicals to their foreign labs, to
    their distribution of their product into the United States. As
    we gain this insight, we're able to support and partner with
    foreign governments to take action.
        Most recently, 702 has proven critical in helping us
    counter the fentanyl threat, which, as I'm sure this Committee
    is aware, is responsible for the deaths of nearly 100,000
    Americans every year.
        Without 702, we would be missing essential information on
    the dangerous groups and individuals behind overseas fentanyl
    production and distribution. And CIA's ability working with and
    through our partners to stem the flow of fentanyl into our
    communities would be greatly diminished.
        I hope these three examples illustrate some of the ways
    that we at CIA rely on FISA 702 collection every day. It is, as
    I said at the outset, indispensable for our work. I look
    forward to answering your questions. Thank you.
        [The prepared statement of Mr. Cohen appears as a
    submission for the record.]
        Chair Durbin. Thank you, Mr. Cohen. Next we have FBI Deputy
    Director, Mr. Abbate. I hope I pronounced your name correctly.
        Mr. Abbate. Yes, Senator.
        Chair Durbin. Please proceed.

               STATEMENT OF PAUL ABBATE, DEPUTY DIRECTOR,
                    FEDERAL BUREAU OF INVESTIGATION

        Mr. Abbate. Thank you, Chair Durbin, Ranking Member Graham,
    and Members of the Committee. It is a privilege to be here
    because of the immense importance of this topic, and the
    discussion to follow, and for the opportunity to have it in
    this public setting as this distinguished panel of colleagues
    has already done a thorough job of covering so much of what is
    vitally important about the collective FISA Section 702
    authority.
        I will try to provide insight into the FBI's use of the
    tool, how we act based on the critical intelligence gleaned
    from it, and the actions we have taken, and continue to take,
    to ensure strict compliance with its use.
        With respect to the threats we face, as you are all aware,
    Section 702 is invaluable within our cyber program as it
    counters malicious activity from adversaries such as China,
    Russia, Iran, North Korea, among others. It is also a critical
    authority for the counterintelligence program which relies on
    it to thwart the work of hostile foreign intelligence services,
    including each of the lawless authoritarian regimes just
    mentioned.
        And our counterterrorism operators depend on it to stop
    foreign terrorists, those who detest American values, freedom,
    and our way of life. And who seek to attack our country, take
    lives, and cause harm. As we've learned from the past, if the
    702 tool is lost, and we have to rely on traditional FISA
    moving forward, it would be next to impossible to keep pace
    with the foreign threats we face today.
        With that, we know many very real and legitimate concerns
    have been raised about the Bureau's use of 702, particularly as
    it relates to querying the limited subset of 702 data relating
    to the FBI's national security investigations.
        I want to be clear about my own views on the compliance
    incidents that were cited in the FISA Court's opinion from last
    year, which was just recently declassified.
        They are wholly and completely unacceptable, and they do
    not reflect the high standards that we seek to hold ourselves
    to in the FBI. I know Director Wray and the entire leadership
    team feel the same way.
        It is important to keep in mind that all the incidents
    cited in that 2022 FISA Court opinion predated a set of major
    reforms that the FBI instituted in 2021 and 2022 that were
    designed to address the root causes and eliminate incidents
    like these, from changes in our IT systems to our internal
    approval processes, to training, and to accountability.
        These reforms have already had significant positive
    impacts. We've seen a 94 percent drop in U.S. person queries
    overall, and our Office of Internal Auditing found a 14
    percentage point increase in our compliance rate from before
    the reforms to after. It is now at approximately 96 percent.
        What is vital to remember is that there are incredibly
    important national security and public safety reasons for the
    FBI to query U.S. persons in FISA holdings. This was a
    fundamental lesson derived by both the 9/11 Commission and the
    Fort Hood Commission.
        We must share information across the intelligence community
    so that we can connect the dots, and then we must be able to
    find the relevant pieces of information in our databases in
    time to be able to take action to neutralize the threat.
        U.S. person queries are used to identify those who are
    actively working with foreign terrorist organizations or
    hostile intelligence services with intent to harm U.S. national
    security and threaten the lives of those who we serve. And we
    also use these queries to determine if those U.S. persons are
    current or potential victims targeted by those foreign powers.
    And if they are victims, we use U.S. person queries to
    investigate the extent of that targeting and can use that
    information to protect and warn the U.S. person or
    organization.
        But it's not enough to say that queries like these are
    valuable to our mission to protect the homeland. The American
    people and Congress also need to have trust and confidence that
    these queries are being done lawfully and in a fully compliant
    manner. It is our obligation to rebuild and to earn that trust.
        As the FBI official responsible for personally approving
    some of the most sensitive queries, I take these compliance
    errors very seriously, and find them entirely unacceptable. It
    is difficult to express strongly enough in words how
    disappointed I am in these failures.
        And so, in response to these and other incidents, I'm
    announcing today two additional new measures we will be taking
    to hold personnel accountable for FISA-related compliance
    incidents.
        First, I have issued new accountability procedures which
    establish a three-strike policy, four-query compliance
    incidents deemed to be unintentional, with a range of rapidly
    escalating consequences. And even stronger disciplinary action
    for those incidents deemed deliberate, reckless, or
    particularly egregious. Penalties based on the facts range up
    to dismissal from the agency.
        Second, the FBI has developed a new business health measure
    to hold our leadership accountable for monitoring FISA
    compliance within their field offices and divisions. This is
    one of the measures our leaders will be evaluated on when it
    comes time for performance ratings, awards, and promotions.
    Because it is not enough to simply hold the line-level
    employees accountable. We strive to ensure that we have
    accountability at every level throughout the organization.
        You have an absolute and complete commitment from Director
    Wray and I that we will continue this progress and work within
    the bounds of legislative authority. Because as crucial as 702
    authority is now, it will only become more important over the
    next 5 years as foreign cyberattacks continue to escalate in
    sophistication and frequency, as foreign terrorist
    organizations continue to reconstitute and pose resurgent
    threats to the homeland, and as we venture further into an era
    of heightened global strategic competition.
        So thank you again for inviting us to this important
    hearing, and for your continued support of the FBI and our
    close partners represented here. Thank you.
        [The prepared statement of Mr. Abbate appears as a
    submission for the record.]
        Chair Durbin. Thank you very much, Mr. Abbate. Mr. Olsen.

      STATEMENT OF MATTHEW G. OLSEN, ASSISTANT ATTORNEY GENERAL,
         NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE

        Mr. Olsen. Thank you, Chair Durbin, Ranking Member Graham,
    Members of the Committee. As you've just heard, Section 702 is
    invaluable. The reauthorization of 702 is perhaps the single
    most consequential national security decision that this
    Congress will make. The stakes could not be higher.
        Congress enacted Section 702 as part of a number of
    fundamental legal reforms following 9/11. Those attacks
    demonstrated that we must, one, share intelligence, and two,
    that we must eliminate walls between foreign intelligence
    collection and domestic law enforcement. I was part of the team
    at the Department of Justice in 2008 that worked with Congress
    to pass Section 702.
        Congress, then, recognized that FISA, as written, created a
    dangerous intelligence gap, and enacted 702 on a bipartisan
    basis. And when Congress passed 702, it also included a number
    of critical safeguards for Americans.
        The law, for example, prohibits targeting anyone inside the
    United States or a U.S. person anywhere in the world. The FISA
    Court reviews Section 702 procedures every year to ensure that
    they comply with the Constitution and with FISA. And the
    National Security Division, which I lead, reviews every single
    targeting decision that's made.
        In my experience, Section 702 is a model piece of
    legislation, an authority that both protects national security
    and safeguards civil liberties. So let me address one area of
    particular concern, and that's the FBI's use of Section 702
    information.
        To use the intelligence that the IC collects lawfully,
    agents and analysts, quote, ``query the database of FBI
    information.'' This is the small subset of 702 data that is
    relevant to open FBI national security investigations.
        A query simply means using a term to retrieve specific
    information that already is in the FBI's possession. It's like
    searching for something in your email inbox. You don't read
    every single email. You probably enter a keyword to find what
    you're looking for quickly within what's already stored in your
    inbox.
        And the FBI's ability to do this, to conduct these queries,
    is absolutely essential to its mission. For example, if the FBI
    learns that a spy working for the PRC has a list of U.S. phone
    numbers on their phone, FBI investigators may query FBI 702
    data with those phone numbers--some of them may be U.S. phone
    numbers--to help identify others working for the PRC, or even
    potential victims of PRC espionage.
        And this is not just hypothetical. The FBI, in fact, was
    able to disrupt--able to disrupt ongoing assassination and
    kidnapping plots, in part, because FBI investigators searched
    their 702 data with U.S. person identifiers. And they were able
    to therefore quickly discover the nature and extent of the
    plotting.
        In another case, the FBI was investigating a cyberattack
    against a critical infrastructure company here in the United
    States. The FBI queried its Section 702 data with U.S. person
    identifiers. And they found out that it was Chinese hackers
    that were behind the attack, and that they had compromised the
    network. And they figured out how they did it. It was this
    information that the FBI got from querying its data that
    allowed the FBI to alert the network operators and to mitigate
    the attack.
        Ultimately, the FBI is the single organization represented
    here with the responsibility and the authority to take action
    inside the United States to protect our national security,
    whether that's to identify and disrupt terrorism attacks,
    espionage, or cyber threats. And the FBI's ability to quickly
    review its Section 702 data is an essential tool for that
    mission.
        The FBI, however, must safeguard the rights of Americans.
    In recent years, we have identified and reported serious
    compliance issues with FBI's U.S. person queries.
        And let me be clear, I join with Deputy Director Abbate.
    These compliance problems are not acceptable. They have eroded
    public trust, and I am not here to defend them.
        Indeed, when we identified these problems, the Attorney
    General directed the FBI to make significant changes to their
    systems, and their policies, and their training. Changes that
    have already proven effective in improving compliance. But this
    is an ongoing process, and as the deputy director testified,
    the FBI is imposing new measures for compliance, and new
    measures for accountability. And we are continuing to review
    the FBI's performance for ways to improve.
        We are committed to working with you and with the rest of
    Congress on potential reforms. As we work with you on this
    effort, we must ensure that any changes we make also preserve
    Section 702's essential effectiveness as a national security
    tool.
        In the end, we must not forget the lessons of 9/11. Unduly
    limiting the FBI's ability to access lawfully collected
    information, and imposing artificial barriers between foreign
    intelligence and criminal investigations will set us back
    decades. It will put our Nation at grave risk.
        Section 702 has proven to be an irreplaceable authority
    that enables our entire intelligence community to work
    together, to collect, and to share, and to use the information
    that's necessary to protect our country. Thank you.
        [The prepared statement of Mr. Olsen appears as a
    submission for the record.]
        Chair Durbin. Thank you, Mr. Olsen. Before I start the
    questioning, I'll recognize Senator Graham for an opening
    statement.

              OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
            A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

        Senator Graham. Thank you, Mr. Chairman. I'll be very
    brief.
        The Committee has heard pretty jarring testimony from
    people in the intelligence and law enforcement space that if
    Congress fails to reauthorize 702, that the country would be
    much at risk. And this program has been used to identify some
    pretty bad actors and take action on behalf of the United
    States.
        The abuses that you talked about--I'll talk to you about in
    a minute.
        But I guess what I'm trying to tell my constituents back
    home, the threats to the country are growing. They're not
    lessening. The ISIS-al-Qaeda footprint is coming back. China's
    up to no good at every front. The Iranians are threatening to
    kill former members of the Trump administration, and many of us
    have been briefed by the FBI based on pickups you've had
    regarding threats against us. And I would imagine that came
    from 702.
        That's the need for it. The downside is that it's been
    abused, and there's a warrant requirement to investigate an
    American citizen for potential wrongdoing. And we don't want
    this to be used to get around a warrant requirement. So bottom
    line is let's reauthorize this program and build in some
    safeguards.
        Chair Durbin. Thank you, Senator Graham.
        Before I begin my questions, I want to remind my colleagues
    that following this open session, we'll have a closed session--
    SVC 217 at 12 p.m. today--where you can pose questions that may
    not be able to be answered in open session.
        I'd like to start with questioning by just noting the
    following. I listened to how this program was described by our
    witnesses. Mr. Fonzone described it as an elegant program. Mr.
    Barnes described it as agile and specific. Mr. Cohen referred
    to precision. Mr. Olsen, that it was irreplaceable, and
    invaluable, and so forth.
        But since the last reauthorization of Section 702 in 2017,
    many violations of the constitutional, statutory, and court-
    imposed restrictions on Section 702 have come to light.
        Last month, an unsealed Foreign Intelligence Surveillance
    Court, or FISC, opinion revealed that the FBI conducted
    improper searches of 702 databases for American communications
    278,000 times--278,000 times. These searches have affected all
    manner of Americans such as individuals listed in police and
    homicide reports, including victims, next of kin, and witnesses
    to the crime.
        One hundred thirty-three people were arrested during the
    2020 Black Lives Matter protest when, as Justice Department
    itself concluded, quote, ``there was no specific factual basis
    to think the searches would turn up foreign intelligence.''
        And 19,000 donors to congressional campaigns when, quote,
    ``the only 8 identifiers used in the query had sufficient ties
    to foreign influence activities to allow such a search''--8 out
    of 19,000.
        Mr. Abbate and Mr. Olsen, you both testified regarding the
    remedial measures that have been implemented or are underway.
    But why should Congress or the American people trust the
    Executive to comply with the law this time in light of this
    track record?
        Mr. Olsen. Thank you, Chair Durbin. I'll first take the
    question, and then pass it off to the deputy director.
        As we both said, the problems that you've cited, and that
    we've identified in our reviews of the FBI queries are not
    acceptable. And I don't defend them. I'm not here to do that.
    What I can tell you is that those problems predate the critical
    remedial measures that were put in place in 2021 and 2022.
        In particular, the FBI made a simple change to its system
    at the Attorney General's direction. Instead of--by default,
    when there was a query conducted by an FBI analyst or agent
    searching all of its data, including FISA, raw FISA, and 702
    data, it simply switched that to a default opt-in.
        So that from that point forward, starting in 2021, the FBI
    agent or analyst had to actually affirmatively take the step of
    saying I'm going to conduct a search using a U.S. person
    identifier. And then, say why that was reasonably likely to
    return foreign intelligence information.
        And it was that single change that has resulted primarily
    in the reduction of the number of U.S. person queries by 93
    percent from 2021 to 2022.
        So, it was at--it wasn't--again, these changes, or these
    problems, these mistakes were not intentional. They were
    inadvertent. They're not defensible. But they were addressed
    largely by just simply requiring an affirmative step to search
    that data because most of those searches were inadvertent.
        You know, and if I made one other point on the 278,000
    number within the court opinion that you cited. Obviously,
    that's a huge number.
        The one thing to put that in some context--the one response
    to put that number in context, that doesn't represent a
    single--each one of those a single wrongful query. Many of
    those queries were batch queries. In other words, multiple
    queries by one mistake. One agent making a mistake. In fact,
    one of those errors accounts for over 100,000 of the 278,000.
    So I think it's important to put that number, again, in
    context. Again, not to defend or to excuse that mistake.
        Chair Durbin. It's been a source of frustration since the
    creation of this program to get adequate accountability for the
    numbers, either on the positive side or the negative side. And
    you have to, I hope, understand why some of us are skeptical at
    this point that 278,000 doesn't mean 278,000. I'm not sure
    where you're going with that.
        Let me just ask the basic fundamental question in the few
    seconds I have left. Is the skill of our adversaries and the
    potential destruction that they could bring to us by their
    malicious acts really made the Fourth Amendment something that
    we have to question whether we can follow it in the 21st
    century?
        Mr. Olsen. Again, I--the FBI is committed, the Department
    of Justice is committed to ensuring the safeguards are followed
    with regard to 702. There is no diminution of the Fourth
    Amendment when we're talking about U.S. person queries.
        In other words, the answer to your question is, we do not
    need to dispense with the Fourth Amendment. The Fourth
    Amendment applies fully to everything we do. In fact, it's the
    hallmark of the work that we do when we investigate and
    prosecute cases, is to follow the Fourth Amendment along with
    the rest of the Constitution.
        The courts that have looked at this--have looked at FISA
    702 and FBI queries, no judge has said that there is a Fourth
    Amendment requirement for the FBI to query the data that's
    already lawfully collected. In fact, the courts that have
    looked at it have said there is no Fourth Amendment violation
    or requirement. There certainly are privacy implications here,
    and that's why we've adopted the changes that we've talked
    about. And that's why the FBI has today announced additional
    compliance measures which, again, are already proving to be
    effective.
        Chair Durbin. I can't go any further because I've run out
    of time. But I will tell you that if the reforms that you've
    mentioned in 2021 and 2022 are the only reforms that you're
    bringing to this Committee as we discuss the future of 702,
    I've got to see more. I hope there is more that you can
    present. Senator Graham.
        Senator Graham. Thank you, Mr. Chairman. I'll just ask the
    panel to raise your hand if you agree with the following: The
    United States is an undeclared state of war against ISIS and
    al-Qaeda. You agree with that or not?
        [Laughter.]
        [All of the witnesses raised their hands.]
        Senator Graham. Okay. All right. I think you raised your
    hands.
        [Poster is displayed.]
        Senator Graham. That the Communist Chinese Party is hell
    bent on infiltrating as many systems in America as possible?
    Okay.
        So let's talk about--I don't know if there's anybody named
    John Doe out there, but I don't know why you would name your
    kid John Doe. So let's talk about John Doe. If John Doe is
    suspected of working with the Chinese or some terrorist
    organization, do we all agree you'd have to get a warrant
    against John Doe if they were an American citizen?
        Everybody nods their head. Right?
        If you think some American is colluding or working with
    some foreign power that would be a crime, then you'd have to
    get a warrant to investigate them. Do we all agree with that?
    Okay.
        702. This is about foreign persons outside the country. Is
    that correct? We're surveilling foreign people outside the
    United States not to solve a crime but to find out if they're
    up to no good in terms of intelligence-gathering threats to the
    country. Is that correct?
        Here's the rub. You pick up a phone on the battlefield
    somewhere, and there's a bunch of names in that phone or
    numbers in that phone. I think you talked about this, Mr.
    Abbate. But let's just say you capture a terrorist somewhere
    overseas, and you have a mobile device, and on that device
    there are names of Americans or numbers of Americans. What
    happens next?
        Mr. Abbate. We're going to quickly take those numbers,
    Senator. We're going to run them against the holdings----
        Senator Graham. Without a warrant?
        Mr. Abbate. If we're talking about FISA 702?
        Senator Graham. Yes.
        Mr. Abbate. Yes. If it's obtained from a foreign
    terrorist----
        Senator Graham. Yes.
        Mr. Abbate [continuing]. Absolutely.
        Senator Graham. So the idea of not looking at those numbers
    is absurd. Why wouldn't you want to look at those numbers?
    Doing it in a constitutionally sound manner is what we're
    talking about. So what would you do? You would ask the system
    what?
        Mr. Abbate. We would be looking connections around the
    world and specifically in the United States. We would want to
    know if that terrorist is working with someone----
        Senator Graham. So if he called----
        Mr. Abbate [continuing]. In the United States.
        Senator Graham [continuing]. John Doe in Cleveland, Ohio,
    and you pinged the system, and there is communications between
    the terrorist's device and John Doe in Cleveland, Ohio, what
    would you do next?
        Mr. Abbate. We would do all the investigative steps that
    you would expect. Physical surveillance----
        Senator Graham. Would you have to get a warrant?
        Mr. Abbate. If we were going to seek technical surveillance
    on the U.S. person, absolutely we would.
        Senator Graham. Okay. So if a terrorist is talking to
    someone inside the United States, and we pick it up from 702,
    if you want to follow the American on the other end of the
    phone, you'd potentially have to get a warrant. Is that
    correct?
        Mr. Abbate. Yes, Senator.
        Senator Graham. Okay. But just asking the question about
    whether or not there was a contact does not require a warrant?
    Does that make sense?
        Mr. Abbate. Yes.
        Senator Graham. Okay. So if an American is involved with a
    foreign person overseas, and there's evidence of an American
    being involved--we don't know what the nature of the
    involvement is, we'd like to know more--you can ask the system.
    But if you're really focusing on the American as being up to no
    good, you have to get a warrant. Is that fair to say?
        Mr. Abbate. That is correct, Senator. Once the focus turns
    to the U.S. person, the person inside the United States.
        Senator Graham. The only reason I mention this is that 702
    is not designed to avoid a warrant requirement against people
    you have to get warrants for. Is that correct? The goal of 702
    is to find out about what bad guys or bad girls may be up to
    overseas regarding us here at home, our interests throughout
    the world, and do something about it before it's too late. Is
    that the general nature of 702?
        Mr. Abbate. Yes, Senator.
        Senator Graham. Okay. Now, you're going to have to prove to
    this Committee that when you query about American citizens in
    that system, that you're not just being lazy getting around the
    law, and these abuses need to stop.
        So count me in with Senator Durbin. I want to know more
    about how to have guardrails. But to the Members of this
    Committee, if we lose this tool, we will pay a heavy price.
        Chair Durbin. Senator Whitehouse.
        Senator Whitehouse. Thank you very much. Thank you all for
    being here. Mr. Olsen, you and I were both engaged in that 2008
    initial process back when I was on the Intelligence Committee
    as well as the Judiciary Committee. So let me just join Mr.
    Abbate in his feelings of dismay that these errors have been
    allowed to take place. I've been a constant supporter of 702,
    and it's very frustrating, years into the process, to have
    these errors continue.
        You've mentioned, the panel has mentioned the role of 702
    in finding out about atrocities committed by Russia in Ukraine.
    Can you tell me if that information has yet been shared with
    the International Criminal Court?
        Mr. Olsen. I'm not sure. I defer to my colleagues about
    whether it has or not. Yes.
        Senator Whitehouse. The reason I'd like an answer to that
    is that this Committee, Senator Graham, Chairman Durbin, saw to
    it that a law was passed lifting the ban on cooperation with
    the International Criminal Court as it regards, specifically,
    Russian atrocities in Ukraine.
        And our understanding from the last conversation we had was
    that the Department of Defense was stopping the executive
    branch from complying with that law passed by Congress.
        And if that is still the case, then we'd like an answer to
    that. So can we get an answer to that in a timely fashion for
    the Committee?
        Mr. Olsen. Yes.
        Senator Whitehouse. It's the law of the country for the
    executive branch to cooperate with the International Criminal
    Court as regards the investigation into Russian crimes. The
    failure of the executive branch to abide by that law, I
    believe, because of the recalcitrance of one agency, just isn't
    consistent with the way things are supposed to work in our
    democracy. So I hope that we've put an end to that problem or
    solved it. But if not, we're going to continue to press on that
    question.
        Mr. Olsen, there are three areas that we've talked about
    with regards to 702 that are not presently in the 702 statute.
        One is its use to pursue the international organizations
    that are responsible for bringing fentanyl into the country and
    for thousands of American deaths. You are currently using the
    program to target those organizations. Correct?
        Mr. Olsen. The program is being used, Senator, for the
    purpose of gaining intelligence on fentanyl distribution
    focusing on individuals and groups outside the United States
    who are not U.S. persons.
        Senator Whitehouse. So let me make a recommendation that
    you add to 702 a specific authorization for that purpose. I
    think that would be welcome.
        Second, you've announced a considerable number of repairs
    and reforms, including the FBI unclassified congressional
    notice that we received today. Those are all being accomplished
    administratively. Correct?
        Mr. Olsen. That's correct, at this point.
        Senator Whitehouse. I would strongly recommend that you
    take as many of those as you feasibly can and bake them into
    the law. So work on an amendment that incorporates those
    reforms so that it now is part of the 702 law that we will be
    voting on.
        The third is that you have mentioned the role of 702 in
    supporting American victims of foreign intelligence breaches.
    Very often it's a company that is having information stolen out
    of it. Often, by PRC-related entities. And the way you find out
    about it is that through 702, you pick up the contact with the
    American company. Now you have the ability to go to the
    American company and say, ``Hey, you have a problem,'' and help
    them defend themselves. Is that an accurate description of the
    way that transpires?
        Mr. Olsen. Absolutely. Both through direct means as well as
    cyber means is the way we've seen those types of intrusions
    occur.
        Senator Whitehouse. Yes. So I would also recommend that you
    add to 702 specific authority related to the support for
    American victims. There's no reason that should hide that
    aspect of the program under a bushel. And once it's part of the
    program, there's no doubt that that's a legitimate way for the
    executive branch to proceed. With that, my time is up. I thank
    you, all, for your service and yield back to the Chairman.
        Chair Durbin. Thanks, Senator Whitehouse. Senator Grassley.
        Senator Grassley. Mr. Fonzone, you can't have meaningful
    discussions about reauthorizing 702 when Government reports and
    court opinions are heavily redacted and hidden from the public.
    Will you commit to declassifying information about the FISA
    abuses and procedures before the 702 reauthorization deadline?
    And if you can't say yes to that, why not?
        Mr. Fonzone. Yes, Senator. Thank you. I think we--we have
    recently released a FISC opinion that released--that
    declassified a bunch of information. And the law already
    requires us to review FISC opinions for declassification and
    release them to the public. And we're committed to making more
    information public about Section 702 to assist Congress and the
    public in its consideration of renewing this authority.
        Senator Grassley. Mr. Olsen, I heard you say in your
    opening statement about processes you're taking to make sure
    that people that abuse this process are going to be held
    accountable. You heard about the 278,000 times that it was
    violated. What is the Justice Department doing to punish folks
    who have already abused FISA?
        Mr. Olsen. Senator, thank you for that question. And,
    again, compliance includes rules and procedures. But it only
    works if you have accountability.
        And that's why the FBI has instituted a comprehensive
    approach to accountability for the agents and analysts who use
    FISA but abuse the rules. It's on a spectrum for intentional
    misuse. Agents and analysts can be fired. In fact, one person
    was fired for wrongfully violating the rules intentionally with
    respect to FISA.
        But the vast majority of the mistakes we've seen are not
    intentional. And the FBI has announced today--Deputy Director
    Abbate talked about a three-strikes approach of escalating
    penalties that include notes in a personnel file, loss of
    access to FISA data, and other measures, including retraining
    to ensure that individuals are tracked over time if they're
    repeat offenders. So there's, again, a range of repercussions
    and discipline. And I know the deputy director and the director
    of the FBI take this very seriously.
        Senator Grassley. Okay. Mr. Abbate, I'd like to have you
    describe for me the process and procedure that the FBI should
    normally follow when receiving criminal allegations from a
    trusted FBI source that an office holder engaged in bribery.
    For example, if the allegations include reference to evidence
    that would prove or disprove the bribery scheme, would standard
    operating procedure require the FBI to seek out that evidence?
        Mr. Abbate. Senator, in any instance where we receive
    information, an allegation, or a complaint, you know, we apply
    the standards and the Attorney General guidelines, and our
    DIOG, and determine whether the information received, the
    allegation, or the complaint meets the threshold for the
    opening of an investigation.
        We consult appropriately with our field office, with our
    program management elements at headquarters, with our Office of
    General Counsel, and then we take it from there based on the
    information whether it meets the standard.
        Senator Grassley. So that's the investigation process that
    should have been followed with respect to the 1023. Apparently,
    that process wasn't followed. For the sake of restoring
    credibility, the FBI must explain itself sooner rather than
    later.
        Mr. Olsen, this is my last question. The Washington Post
    reported your involvement in Mar-a-Lago raid. It wrote that,
    quote, ``FBI agents on the case worried that prosecutors were
    being overly aggressive,'' and further, quote, ``Olsen appealed
    to senior officials in FBI headquarters to push their agents to
    conduct the raid.'' Did you communicate with senior officials
    at FBI headquarters to push their agents to search Mar-a-Lago?
        Mr. Olsen. Senator, our solemn responsibility in every case
    is to follow the facts, and the law, and to do so without fear
    or favor. We are absolutely committed to the impartial
    administration of justice, and to upholding the rule of law,
    which includes applying the law equally to everybody. As I'm
    sure you can appreciate, that matter is under the auspices of
    the Office of the Special Counsel----
        Senator Grassley. Is The Washington----
        Mr. Olsen [continuing]. And I'm not going to comment
    further on it.
        Senator Grassley. Is The Washington Post right or wrong?
        Mr. Olsen. That's a matter that's pending, and it's an
    ongoing matter, and it's being handled by the Office of the
    Special Counsel. So I'm sure you can understand that I'm not
    going to comment further.
        Senator Grassley. Thank you. I yield.
        Chair Durbin. Senator Klobuchar.
        Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
    you, all of you, for your good work.
        I'll start with you, Deputy Director Cohen. I know Senator
    Whitehouse asked you--asked Mr. Olsen about the use of 702 when
    it comes to drug trafficking. And I wanted to kind of dig down
    on that just because we're seeing more and more fentanyl kill
    people, and also more available on the internet. Sometimes,
    many times, unknowingly, when people are purchasing other pills
    that shouldn't be on those platforms.
        Without getting into specifics, how is data collected under
    Section 702 been used to disrupt trafficking networks, and
    prevent fentanyl and its precursor chemicals from entering our
    communities? What work is being done?
        Mr. Cohen. Thank you for that question, Senator Klobuchar.
    So we use Section 702 collection on foreign persons overseas,
    query the database to identify individuals tied to
    organizations that are involved in drug trafficking and
    fentanyl production in particular.
        It helps us illuminate where the precursor chemicals are
    coming from. Often from China. How those chemicals get to
    overseas. Oftentimes to Mexico. Not invariably, but oftentimes
    to Mexico. As well as how some of the pill presses that are
    used to manufacture fentanyl are acquired. Again, overseas, and
    brought into Mexico for use including by, you know,
    organizations such as the Sinaloa Cartel.
        Senator Klobuchar. I think that's really----
        Mr. Cohen. That really helps us----
        Senator Klobuchar [continuing]. Important to know for those
    just talking to families of lost kids who purchasing drugs on
    the internet, that the platforms are being used----
        Mr. Cohen. Yes.
        Senator Klobuchar [continuing]. By these cartels. You don't
    have to go into that. But these cartels are actually involved
    in this. So it's not like they can get all their justice in the
    U.S. And in order to stop this, we're going to have to stop it
    from coming in--the ingredients and some of the other
    substances. Is that correct?
        Mr. Cohen. That's correct, Senator.
        Senator Klobuchar. Okay. Deputy Director Abbate, I
    appreciated Senator Durbin's words about making sure that these
    reforms continue, and that they are. I appreciated what you
    announced today, and that there'll be changes to the existing
    702 authority.
        Could you talk about how the reforms the FBI implemented
    resulted in measurable improvements in the FBI's compliance?
    Number one. And then number two, is there a lag in the publicly
    available data such that the most recent FISC Section 702
    certification does not accurately inform the public?
        Mr. Abbate. Thank you, Senator. Yes. With respect to the
    reforms that we've already put in place--as the Assistant
    Attorney General noted--we've seen significant progress. Just
    the one that Mr. Olsen cited on having our personnel opt in
    year over year resulted in a 90-something percent decrease in
    overall U.S. person queries.
        So we've seen significant progress there along with the
    other reforms that we've implemented on batch queries which are
    anything more than one. We had put in place a requirement that
    for any batch queries over 100, it would require attorney
    review from our Office of General Counsel. I've taken that even
    further now because I saw some recent examples, again, where I
    was disappointed in the compliance error. So we've actually cut
    that down now so that any batch query of any number is going to
    require attorney review from our Office of General Counsel
    going forward.
        We're also requiring written justifications for our
    personnel when they're endeavoring to make a U.S. person query.
    And we're going to continue to iterate on that. We view it as
    an ongoing process, and we're open to any and all further
    reforms in working with the Committee and Members here. And
    we're not going to stop until we've achieved 100 percent
    compliance.
        Senator Klobuchar. Okay. I was going to ask Mr. Olsen if
    you wanted to add anything. But before that, quick, how has the
    FBI used Section 702 to critical infrastructure and businesses
    to protect them from ransomware and other cyber threats?
    Because we certainly have been seeing a surge in those.
        Mr. Abbate. Yes, Senator, as we said, it's a vital tool.
    Some examples have already been provided with regularity that
    we see that. It's helped us literally identify potential
    victims, and victims in the United States--both individuals and
    companies who are either being targeted for cyberattack, or in
    the midst of an attack, or already have been.
        It's allowed us to get in front of that, particularly with
    regard to our critical infrastructure to warn victim companies
    before they're hit and prevent the harm from occurring from
    adversaries like China, Russia, Iran, North Korea. And it's
    been--without it, we would not have been able to have achieved
    that goal----
        Senator Klobuchar. Okay, because you've----
        Mr. Abbate [continuing]. And to protect our country's----
        Senator Klobuchar [continuing]. Had some major
    prosecutions. Could I just ask Mr. Olsen? It appeared he had
    something you wanted to add on the reform front.
        Mr. Olsen. If I may, just two quick points, Senator. One on
    your cyber question. One example is the notorious Colonial
    Pipeline attack where 702 collection helped us both identify
    the hacker, and it enabled us to recover most of the ransom
    money that had been paid.
        Senator Klobuchar. Mm-hmm.
        Mr. Olsen. Second, your question about the certification
    and the FISC opinions.
        Senator Klobuchar. Yes.
        Mr. Olsen. There is a 2023 opinion that is now going
    through the declassification process that will come out
    shortly, and which does identify some additional improvements
    in FBI compliance. Not 100 percent. There are still problems
    and things that we're still working on. That's part of the
    deal. But it does identify that the FBI has continued to
    improve its compliance over the past year.
        Senator Klobuchar. Okay. Thank you very much.
        Chair Durbin. Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman. I haven't heard
    anyone say that 702 is not essential to our national security,
    and I believe that it is essential to our national security. So
    I'm delighted to hear that people are saying that--not claiming
    that we can do away with it.
        But what you're also hearing is, is a lot of skepticism,
    even distrust of the intelligence community based on abuses
    that have been well documented. And, as you know, once that
    trust is lost, it's hard to earn it back.
        So we're at a little bit of a crossroads here. I'll remind
    you that it was just a few years ago where we tried to
    reauthorize Section 215 of the Foreign Intelligence
    Surveillance Act and were unable to build a political consensus
    to do that.
        So I do believe your testimony that this is important to
    our national security. So the question is, how do we work
    together to regain the public's trust, and the confidence of
    Members of Congress who'll be asked to vote in favor of some
    reforms?
        Mr. Abbate, just--you've talked about the work that's been
    done at the FBI. And I had the opportunity to go look at how
    the FBI's reforms--not the ones you mentioned today, but the
    others in terms of querying FISA information--how those work.
    Would you have, or the FBI Director have any objection if those
    reforms that you've announced, that the FBI has announced, were
    codified and written into the law, as opposed to just policies
    of the agency?
        Mr. Abbate. Thank you, Senator, first for visiting with us
    at FBI headquarters, and taking the time. We would not have any
    objection at all from the FBI standpoint to codifying any and
    all of the reforms that we put in place, and future ones, as
    well.
        Senator Cornyn. And Mr. Abbate, I was struck by the fact
    that when the FBI is doing an investigation, an agent's not
    just sitting down and doing a query of foreign intelligence
    information lawfully collected. You're actually engaged in
    querying more than 100 different databases. Is that correct?
        Mr. Abbate. Yes, Senator. I don't know the exact number of
    databases, but we do have quite a few.
        Senator Cornyn. And so this is not agents sitting down and
    just looking at foreign intelligence surveillance. They're
    looking for all the data points to be able to put together an
    investigation into potential intelligence vulnerabilities or to
    pursue perhaps crimes.
        So there has been some suggestion--and I'll throw this open
    maybe to Mr. Olsen. There's something known as Executive Order
    12333, which, again, by definition is something that the
    President of the United States has done without congressional
    input or interaction.
        But there's been a question raised as whether--if 702 were
    to go away, does Executive Order 12333 provide the tools
    necessary to protect our country?
        Mr. Olsen. I'll answer, and maybe Mr. Fonzone might have an
    answer to this, as well, in his role as General Counsel for the
    DNI. But the short answer, Senator, is no. And the reason the
    answer is no, and flatly no, is that Executive Order 12333 does
    not allow for the critical piece that 702 does. And that is
    compelling the support and compliance of private electronic
    communication service providers.
        In other words, the real genius behind Section 702 was,
    yes, it's focused outside the United States on non-U.S.
    persons. But it also allows the Government to compel the
    assistance of a provider inside the United States, which are
    often the ones that are providing support or, you know,
    communication support to the individuals that we're targeting
    outside the U.S.
        Senator Cornyn. Mr. Cohen, obviously, Congress is very much
    engaged on a bipartisan basis in supporting the Ukrainian
    people from--on the basis--in light of the Russian invasion of
    their country. And the other sort of major issue that seems to
    enjoy broad bipartisan consensus is defending our country
    against the aggression of the People's Republic of China. Could
    you speak to how 702 is important in terms of both of those
    matters?
        Mr. Cohen. Senator Cornyn, I will say for both of those
    efforts, 702 is involved. I can go into more detail when we go
    into closed session.
        But we, and with our colleagues in the intelligence
    community, rely on 702 to identify foreign intelligence
    information that is useful for our analytic work in providing
    products to Congress and to the administration in the Ukraine
    context to understanding what's happening there, as well as a
    whole host of products that we write with respect to the
    challenge that we're facing from the People's Republic of
    China. But I'm happy to go into more detail in the closed
    session.
        Senator Cornyn. Thank you. Thank you.
        Chair Durbin. Thank you, Senator Cornyn. Senator
    Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. I will be
    interested in hearing how 702 has been useful with respect to
    both Ukraine and China. I can certainly understand as to China.
    I wonder if you could give us a little bit more, even in this
    public setting, about how it's been important to our assistance
    to Ukraine and its fight against Russia's criminal murderous
    aggression.
        Mr. Cohen. Senator, let me--let me take a shot at that. But
    mindful that I do think that some of the real substance would
    be better discussed in closed session. So, what I will say--and
    picking up a little bit on the answer to the prior question--is
    that our adversaries, whether they're Russians, Chinese,
    Iranians, North Koreans, terrorist organizations, make use of
    U.S. communications service providers.
        And if there is a reason for believing that we have a, you
    know, some foreigner operating overseas who is using a
    communication service that is provided by a U.S. service
    provider, we are more likely--the NSA will target that foreign
    person overseas to collect the intelligence that's--collect
    those communications.
        We can then query the database of information that is
    collected on those foreign persons overseas. We run queries,
    NSA runs queries, obviously the FBI runs queries against this
    database of information that is collected when it is reasonably
    likely to retrieve foreign intelligence information.
        And we do that in the Ukraine context. We do that in the
    context of the People's Republic of China, and in other
    contexts where we have national security concerns.
        Senator Blumenthal. And in the Ukraine context, we can play
    a part in supporting Ukraine through sharing our intelligence.
    Correct?
        Mr. Cohen. There's a whole host of ways in which we're
    supporting the Ukrainian government with intelligence sharing,
    and, you know, it involves, you know, the full swath of
    collection that the United States is involved in.
        Senator Blumenthal. Let me ask you, as you may know, and I
    think we've talked about it in our conversations in my office.
    I've been a longtime advocate of some more robust adversarial
    process within the Section 702 FISA procedure.
        In 2015, Congress took an important step in codifying the
    amicus responsibility. My numbers are from 2015 to 2020. There
    were 1,200 FISA applications, but just 19 amicus appointments.
    And in 2017, the only amicus at the time with significant
    criminal defense experience in the FISA context resigned
    because he hadn't been assigned to a single case.
        Those numbers tell me that the present amicus process is
    not providing really robust or sufficient adversarial
    procedure, when we all know as lawyers that our justice system
    thrives on the adversarial procedure.
        This area is the one part of our justice system where we
    have no such adversarial process because the subjects of 702
    collection likely will never learn that they've been the
    subject of this process. So what is your position on this
    issue? I think I know what it is, but I'd like you to state it
    for the record, if you would, sir.
        Mr. Cohen. Senator, is that a question for Mr. Olsen or for
    me?
        Senator Blumenthal. Whoever would like to answer it.
        Mr. Cohen. Why don't, why don't I turn it over to Mr.
    Olsen, who----
        Mr. Olsen. I'm happy to answer that question, Senator. I
    represent--I lead the National Security Division and we
    represent the Government before the Foreign Intelligence
    Surveillance Court. So we're directly involved in the process
    that you describe.
        First, we are open to reforms, as I said at the beginning,
    that preserve the essential effectiveness of Section 702. So if
    there are reforms, for example, to the FISA Court process,
    we're happy to engage with you and other Members of Congress as
    we think through how those would work.
        When it comes to the amicus process, the FISA Court can ask
    for an amicus to be appointed in any case. And they do so in
    any case involving a novel or complex interpretation of FISA.
    And that's the cases that are the hard cases where they do have
    an adversarial process through the amicus appointment.
        The vast majority of FISA applications are basically the
    same as the ex parte process that occurs in a Title III
    criminal application, which is not an adversarial process, but
    rather criminal matter.
        Senator Blumenthal. It's not, but eventually there is
    likely to be a challenge.
        Mr. Olsen. That's correct.
        Senator Blumenthal. And in this instance, there's likely to
    be no challenge. And so the privacy interests arise not only
    where there's some new major novel interpretation of law. But
    as you well know--you know a lot more than I do, at least--the
    case-by-case decisions often turn on interpretations of law
    that are challengeable. And that's why an adversarial process
    would provide a lot of reassurance, I think, to this Committee
    and the American people.
        Mr. Olsen. Again, we're open to having this conversation
    and engaging with you on this. I do--it is my view that the
    vast majority of FISA applications are basically facts against
    the probable cause standard. They don't involve novel
    interpretations of the law, and they are done on a level of--
    with a degree of urgency, you know, multiple times a week that
    would--that does not lend itself to the sort of adversarial
    back and forth process that an amicus would introduce. And it
    would--so there is some serious risk to having, for example, an
    amicus in every case.
        Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
        Chair Durbin. Thank you, Senator Blumenthal. Senator Lee.
        Senator Lee. Over the past 12\1/2\ years, I've raised
    significant concerns in hearing, after hearing, after hearing
    about FISA, and the FBI's shocking disregard for Americans'
    constitutional rights and civil liberties.
        I've been given basically the same answer by FBI Directors,
    and Attorneys General, and other officials during three
    Presidential administrations involving both major political
    parties.
        The answer every time is a variation, more or less, of the
    following: ``Just trust us. Don't worry. We've got good people,
    law abiding people running this. And we've got lots and lots of
    procedural safeguards in place to prevent this type of abuse
    that you're facing here.'' ``These aren't the droids you're
    looking for''--that's what we're told.
        Here again today [holds up document], just the last 24
    hours, we got a new policy. This one's finally going to fix it,
    you tell us. This one--this one's going to do it.
        Meanwhile, what's happened? Well, in 2019, Inspector
    General Horowitz issued a shocking report confirming a lot of
    what I had feared over the years but had found it difficult to
    prove. A report regarding Crossfire Hurricane, the FBI's secret
    surveillance of Donald Trump's 2016 Presidential campaign, and
    then a subsequent memorandum dealing with the FBI's failure to
    maintain the so-called ``Woods files,'' which a Woods file is
    basically the evidentiary record underlying a FISA order
    request in violation of FBI policy.
        Year after year, in hearing after hearing, we hear of
    instances of noncompliance. Including the disclosure just last
    month that the FBI illegally surveilled 19,000 donors to a
    congressional campaign, Americans participating in protests in
    the summer of 2020, Americans who were in Washington, DC, on
    January 6th, 2021, and even a sitting Member of Congress.
        Hundreds of thousands of searches of Americans' private
    communications and information are conducted each and every
    year without a probable cause warrant. Frankly, without any
    warrant if conducted under Section 702.
        Now, let me be very clear. That number should not just be
    going down. That number should be zero. Every, quote, unquote,
    ``noncompliant search'' involving U.S. persons violates an
    American citizen's constitutional rights.
        And yet every year the FBI claims that we should just trust
    the FBI to fix the problems internally. Well, first they tell
    us there are no problems. Then they tell us we will fix them
    because we've got good people, and we've got new policies, and
    this time it's going to be different.
        Only later we find out that the FBI conducted more and more
    illegal searches in violation of Americans' constitutional
    rights than the last time we addressed the issue.
        So it's hard not to conclude that the only thing the FBI
    wishes it could fix here is the possibility of getting caught.
    This is what I find so insufferable. This is what I find so
    incredibly insulting.
        Look, I want to echo Senator Blumenthal's point a minute
    ago, and I hope every American can take note of this feature of
    this. This is unlike other court proceedings. We call it a
    court, and yet it doesn't have any of the trappings of an
    ordinary court. There is no adversarial process.
        We're told a moment ago by Mr. Olsen that it's okay. It's
    okay because the FISA Court has the ability to appoint an
    amicus anytime it feels necessary to do so. Well, why not in
    every case? And even if there is an amicus, what interest does
    the amicus have that's on par with the individuals affected?
        The bottom line is you collect all this data. And then
    after you store all that data, some of it involving
    communications, the content of individual phone calls, emails,
    text messages, whatever it is--the content. Not just the
    metadata, but the content. You can do a backdoor search on that
    without a warrant predicated on probable cause.
        That is itself an affront to the Constitution. That is
    itself something that is always going to lead to constitutional
    violations, and it must stop. We've got an opportunity this
    year to make necessary reforms, and we must do it.
        But while we've got you here, Mr. Olsen and Mr. Abbate, why
    should we ever trust the FBI and the DOJ when it comes to this
    issue, whether under the current administration or under future
    leadership? Why should we ever trust the FBI and the DOJ again
    to police themselves under FISA when they've shown us
    repeatedly for more than a decade that they cannot be trusted
    to do so?
        Mr. Olsen. Senator, thank you for the question. Obviously,
    Section 702 is an invaluable intelligence tool. That's beyond
    dispute. It's also one that's very powerful, and it must be
    used responsibly. And I share the frustration that you express
    with the lack of compliance that we've seen in past years from
    the FBI. I'm not here to defend those compliance problems.
        What I can tell you is that those compliance problems
    predate some of the very significant changes that the FBI has
    put in place. I will not say that compliance problems will be
    zero next year. We are not saying, as I think you mentioned,
    that we'd say we're done. This is an ongoing process. We will
    continue to try to improve. We will work with you, and your
    staff, and other Members of Congress to make sure that we're
    implementing procedures and policies, training, and other
    measures to continue to drive down these errors and compliance
    problems.
        But in the end, the tool itself is so incredibly important
    to our national security that I believe that its essential
    effectiveness must be preserved.
        Senator Lee. Mr. Abbate.
        Mr. Abbate. Senator, thank you. I share your concerns as
    well, and I take this seriously. And with regard to the FISA
    702, since I've been in this role and under the leadership of
    Director Wray, we've made significant changes. Ones that have
    never been made before, and there has been a lot of progress.
    But we're not going to rest on our laurels. We're going to keep
    driving ahead, continue to implement reforms as required,
    taking guidance and counsel from the Committee and other
    Members.
        With regard to Crossfire Hurricane, what happened there was
    wholly unacceptable. We agree with the findings set forth by
    Inspector General Horowitz and Special Counsel Durham.
        We've acknowledged that in the past, and going--that's 2017
    and earlier, that conduct occurred--not under Director Wray's
    leadership or when I was in this position.
        We have an entirely new leadership team. We've implemented
    very strong corrective actions. The poor decision-making, the
    grave errors of judgment, the misconduct, the----
        [Gavel is tapped.]
        Mr. Abbate [continuing]. Lack of rigor, investigatively,
    that occurred there, totally unacceptable. We reject it.
        We hold people accountable for that now. And everything
    that we've done on the work, on the mission since that time,
    we've worked to avoid those mistakes, and apply the lessons
    learned of the past. And anyone we find who goes against that,
    they are not going to work in the FBI and they will be held
    accountable for that period.
        Senator Lee. Great to know. Congress has got to fix this
    problem and stop trusting the surveillance state to fix it. It
    can't. It won't. We know that because it hasn't.
        Chair Durbin. Thank you, Senator Lee. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. Mr. Chairman, I
    share your concerns about the--regarding U.S. person queries
    without warrants, and the concerns expressed by a number of my
    other colleagues.
        So this is one of the reasons that I have not been able to
    vote for reauthorizing 702. And when I am thinking about a
    warrant in this context, I am thinking about something much
    less involved than a typical FISC order, and much more like the
    search warrants that are issued in countless courthouses in our
    country every day.
        Last year, Federal magistrate judges considered over
    140,000 search warrants. Probable cause is not a high bar, and
    magistrate judges are used to evaluating it. Different
    provisions of FISA already allow Federal magistrate judges to
    issue certain FISA orders, and I would support discussion about
    expanding that authority to this context.
        For Mr. Olsen, so you've had a chance to--we have met to
    talk about why can't we have a warrant requirement. The
    Department opposes a warrant requirement because you argue that
    many of the queries are done before the FBI has probable cause.
        Which says to me that if you had to meet a probable cause
    requirement, that would already decrease the number of
    applications. So do you have any reaction to the idea of using
    Federal magistrate judges in a warrant requirement process?
        Mr. Olsen. Thank you, Senator, and I appreciate the
    opportunity to meet with you, and your staff, and to discuss
    these important issues. The warrants requirement that has been
    discussed when it comes to Section 702, I think, is not
    workable, and not legally required. And let me explain why.
        First, every judge that's looked at this issue, every
    Federal judge, including judges on the FISA Court, have
    concluded that a warrant is not required under the Fourth
    Amendment for searching the lawfully collected data that is in
    the FBI holding. So there's no legal requirement.
        But putting that aside, because there are indeed privacy
    and civil liberties implications to the FBI searching with the
    U.S. person identifier. The fundamental problem is that such an
    approach would be unworkable.
        And I go back to the hypothetical that Senator Graham
    described. Which is, assume the military, our military, obtains
    a cell phone in Syria. And that cell phone has 100 phone
    numbers on it, 30 of them are, you know, U.S. phone numbers.
    And the person that they get it from is a suspected ISIS member
    who's plotting against the United States.
        There may not be, in fact, likely wouldn't be probable
    cause to search those phone numbers in the FBI database. But
    with time being of the essence, it's absolutely critical that
    the FBI, along with other components within the intelligence
    community, take those phone numbers and determine whether or
    not we have an ISIS operator inside the United States who's
    plotting an attack.
        So we would not have probable cause. We wouldn't be able to
    take that step. It's not legally required. And if we were
    required, the sheer number of such requests would simply
    overwhelm the system. There's no number of FISA Court judges or
    even magistrates who would have the clearances, for example,
    who could possibly manage the number of queries. So it's both
    not legally required, and it's not workable, and it wouldn't
    protect us.
        Senator Hirono. You mentioned that all of the courts that
    have addressed the issue of Fourth Amendment issues, that they
    have all found that Section 702 does not require such warrants.
    But I have information that that is actually not the case. I
    don't know what specific questions were before particular
    courts, but several judges, including a unanimous panel of the
    Second Circuit Court of Appeals, have raised constitutional
    concerns.
        And you note that you would want a U.S. person inquiry in
    the instance where there is a definite connection with the
    terrorists, for example. But how do you justify the querying of
    American protesters, for example, or people who have made
    contributions? I think that the 702 is way too broad. It does
    raise constitutional questions.
        And I'm just searching for some way that is not going to
    stop the legitimate reasons for why we need 702, but also to
    address the constitutional questions. And it occurs to me that
    maybe having magistrate judges who are very used to determining
    probable cause can be utilized in this regard so that we don't
    have the situation of protesters' information being accessed,
    or political contributors, that has no connection to
    terrorists, for example.
        So, you know, I am hopeful that we can figure out a way to
    find some way. I think I heard you say that you're okay with
    some reforms. And I know that the FBI recently put in a new
    procedure called--well, where you record the justification for
    all U.S. person queries. I would be interested to know what
    kind of recordation is it, and who determines whether
    justification was there. So perhaps maybe you can give me a
    little bit of enlightenment as to what this record the
    justification is?
        Mr. Abbate. Yes, Senator----
        Senator Hirono. Mr. Abbate.
        Mr. Abbate. Yes. Within our system, the automated system,
    when the FBI employee who's seeking to do the query, the
    written justification has to be input into the system. And it's
    retained there in the records, and recoverable forever with
    respect to that query.
        And we're making the system adaptations right now to fully
    put that into place, ensure that those records are retained,
    and that they're reviewable, and auditable.
        Senator Hirono. My time is up, but I would have a concern
    as to whether there is any kind of a third party--independent
    third-party person who reviews whether there was justification.
    Thank you----
        Mr. Olsen. If I may----
        Senator Hirono [continuing]. Mr. Chairman.
        Mr. Olsen [continuing]. Just very briefly, Senator, that's
    in fact, what the lawyers in the National Security Division do.
    The lawyers who work for me do exactly those audits of the FBI
    queries--about half the field offices each year. We review all
    of the queries that were done, and we review those
    justifications--those written justifications to ensure that
    they meet the legal standard for searching the data. So, again,
    I appreciate your interest, and I look forward to working with
    you further on this.
        Senator Ossoff [presiding]. Senator Kennedy is recognized
    for 5 minutes.
        Senator Kennedy. Thank you, Mr. Chairman. I guess my
    comments will be directed to Mr. Abbate. Am I saying that
    right?
        Mr. Abbate. Yes, Senator.
        Senator Kennedy. And Mr. Olsen. Perhaps to all of you. No
    fair-minded person can doubt the efficacy of Section 702. But
    here's the problem you've got. Just when the FBI--which I
    think--which I think is the most effective law enforcement
    agency in all of human history.
        Just when the--but people are people, and just when the FBI
    has rebuilt itself after former Director Hoover, along comes
    Mr. Wray's predecessor who clearly did not understand how to
    exercise power, either intelligently or maturely.
        He decides to investigate in a public way, not only one,
    but both candidates for President of the United States. And to
    do it publicly, and to leak like the Titanic. He investigates
    the Republican nominee with the flimsiest of evidence that has
    been manufactured that he--the FBI Director at that time--
    didn't even bother to examine. And then he turns to the
    Democratic nominee with respect to her email servers,
    investigates her, calls a press conference, says, well, I--I,
    not we, I am not going to prosecute her, but--but she needs to
    clean up her act. She's been negligent.
        And then a little time goes by, and he opens up the
    investigation again in a public way on the Democratic nominee.
    And says, I'm opening this up. And a few days later, he closes
    it down. Might have cost her the election.
        And then we start having reports predictably come out after
    that. The Durham report, the Mueller report, the Horowitz
    report. And it did extraordinary damage to the FBI, and
    frankly, to the Department of Justice.
        Now, Mr. Wray, who I supported to replace Mr. Comey, has
    said he has reformed the FBI. We just don't know how. We have
    no idea. I don't have any idea. I do know stuff keeps
    happening.
        I mean, one of your agents that was involved in the Mr.
    Hunter Biden's investigation goes on social media, apparently
    for a long period of time, and trashes all Republicans. He got
    fired only because Senator Grassley caught him.
        And all this hurts you. And it makes a fair-minded American
    look at this and go, ``Whoa, you know, this is enormous power
    you have, and it can be used for the greater good, but it also
    can hurt people.'' And we've got to come up with a way to make
    sure that the right people are using this law enforcement tool.
    And that's--that's the problem you've got, gentlemen.
        If I were you--I'm not. I don't have your expertise, and I
    thank you all for your service. But if I were you, I'd try to
    be coming up with a way to suggest to Congress how you can
    check this power that you have so that the FBI, and the
    Department of Justice, and the other agencies can regain their
    reputation, and tell us what you think.
        That doesn't mean we won't come with our own ideas. You
    know, Senators don't take orders. Most of them barely take
    suggestions, but it would be helpful to me if you would come up
    with your own ideas to address these concerns. Not just our
    concerns, but the concerns of the American people.
        I don't want to live in a country where if the FBI knocks
    on your door, the first thing you have to do is wonder whether
    the agent is a Republican or a Democrat. And thanks to Mr.
    Wray's predecessor, that's where we are, folks. I know that's a
    cold issue truth, but I think that's the truth.
        So I'm going to read your testimony. I need to learn more
    about this, but help us figure out this problem. Thank you,
    gentlemen.
        Senator Ossoff. Chair Durbin has stepped out and left me to
    chair in his stead. And I'm also going to spend my----
        Senator Kennedy. I like you better. You're doing a hell of
    a job.
        Senator Ossoff. Not in public, Senator Kennedy, please.
        [Laughter.]
        Senator Kennedy. You're doing a hell of a job.
        Senator Ossoff. Okay. So I have the privilege of sitting on
    both the Judiciary and Intelligence Committees. And let me just
    start by saying I think there's no serious doubt about the
    collection value of this overarching authority. And the most
    important question that we need to be focused on at this
    hearing is U.S. person queries. That is the principal source of
    concern for me, and I think for many of my colleagues.
        And Mr. Olsen, it's the case, is it not, that the FBI can
    query this database for U.S. person communications simply
    seeking evidence of a crime? It does not have to be a national
    security investigation. Correct?
        Mr. Olsen. It is correct, Senator. Thank you for the
    question that the FBI can search using a U.S. person identifier
    for either foreign intelligence or evidence of a crime. But
    there must be a reasonable basis to believe that there is
    information in the Section 702 data that would be responsive to
    such a query.
        Senator Ossoff. Yes. Why should there not be a warrant
    requirement for these searches, which are known as crime only
    searches, whereby FBI agents are seeking the communications of
    Americans either considering opening a criminal investigation
    or in the midst of a predicated criminal investigation? Why
    should there not be a warrant requirement for such a U.S.
    person query?
        Mr. Olsen. So stepping back for a moment, if I may, just to
    provide----
        Senator Ossoff. Just for a moment.
        Mr. Olsen [continuing]. Very quickly. Section 702 is a
    foreign intelligence tool.
        Senator Ossoff. Yes.
        Mr. Olsen. It's not a law enforcement----
        Senator Ossoff. Right.
        Mr. Olsen [continuing]. Tool.
        Senator Ossoff. So why is it used for domestic law
    enforcement purposes?
        Mr. Olsen. It has been used exceedingly rarely where a
    query using a U.S. person identifier would have identified
    information that did not have a foreign intelligence purpose.
    So outside of the national security realm, not involving a
    terrorism, or espionage, or cyber charge or investigation----
        Senator Ossoff. So it can be used for this purpose, and it
    has been used for this purpose.
        Mr. Olsen. In 2022, it was 16 different times--14 of those
    times where it was used for evidence of a crime only were where
    the U.S. Government had an affirmative discovery obligation to
    search.
        Senator Ossoff. Well, we'll get into those numbers in a
    second.
        Mr. Olsen. Yes.
        Senator Ossoff. But it begs the question, if it's so rare,
    as you state, why not go get a warrant?
        Mr. Olsen. I think the initial idea was that there would be
    occasions, perhaps, where an agent or an analyst would find
    evidence of a crime only--not national security information--in
    the 702 data and would want to be able to use that.
        And it has happened that an agent found evidence of child
    abuse while looking at Section 702 data. So pure evidence of a
    crime that they were then able to follow----
        Senator Ossoff. Different things. We are talking about
    seeking evidence of a crime only. We're not talking about
    encountering evidence of other crimes in the course of querying
    foreign intelligence information.
        Mr. Olsen. Okay.
        Senator Ossoff. We're talking about U.S. person queries
    whose sole purpose is investigating domestic crime. Why should
    that not require a warrant?
        Mr. Olsen. The reason for not requiring a warrant is that
    this is lawfully collected information that is in the FBI
    holdings. And to simply wall off the FBI, for example, in the
    child abuse context from seeing that information and using it
    would prevent them from----
        Senator Ossoff. Yes.
        Mr. Olsen [continuing]. Being able to follow up----
        Senator Ossoff. That's a different fact pattern. That's
    encountering evidence of a crime in the course of conducting
    foreign intelligence investigations. This is a question I think
    that the Committee needs to look into.
        I want to talk about this question of justification. We got
    a document last night about 12 hours before this hearing
    announcing some new reforms. I want to read back something that
    you said to Chair Durbin in this hearing. You said, ``Starting
    in 2021, the FBI agent or analyst had to actually affirmatively
    take the step that I'm going to conduct a search using a U.S.
    person identifier. And then say why that was reasonably likely
    to return foreign intelligence information.'' This is the
    justification for the query, but has to be entered into the
    system.
        But it's the case, isn't it, that until 12 hours ago, when
    we received this, they only had to enter that justification if
    they actually looked at the results. They did not have to enter
    that justification to enter the query. Correct?
        Mr. Olsen. That's correct. It was only if there was
    responsive information from the query. At that point there
    would be the obligation to----
        Senator Ossoff. Right.
        Mr. Olsen [continuing]. Justify it.
        Senator Ossoff. So they can--they can enter the query and
    they're going to see substantive information before they view
    the full results. Aren't they going to see a number of results?
    They may see some metadata. They may even see some preview
    content. Correct?
        Mr. Olsen. I don't believe that there would be any
    opportunity to review any content of what was produced in
    response to the query before entering the justification.
        Senator Ossoff. No metadata?
        Mr. Olsen. I'm not sure about that. It--I'm not----
        Senator Ossoff. Well, it's metadata either way. Isn't it?
    Because it reveals whether or not the U.S. person being
    investigated has had contact with anyone in the FBI's portion
    of the underlying 702 database. Correct?
        Mr. Olsen. It may simply be sent. I don't know the exact
    answer, but----
        Senator Ossoff. So I'm out of time, but I----
        Mr. Olsen [continuing]. It may simply be a response that
    there is responsive information in the data, but nothing
    further.
        Senator Ossoff. I'm out of time. But, let me just--so as I
    said at the beginning, I don't have any doubt about the foreign
    intelligence value of this. But the U.S. person query aspect of
    this is really concerning to the Congress. I don't think you've
    effectively made the case that there shouldn't be a warrant
    requirement whether or not it is constitutionally required for
    a U.S. person search that is crime only.
        And it just--it undermines the feeling about transparency.
    When you and your colleagues making the rounds for the last few
    months about, you know, touting the reforms you've implemented,
    have been explaining to us that, well, ever since the reforms
    were made, we have to state a justification for the query----
        [Gavel is tapped.]
        Senator Ossoff [continuing]. When it turns out that you
    only had to state the justification for the query if you
    actually decided to look at what the search revealed.
        So U.S. person queries is an area ripe for statutory
    changes, Mr. Chairman. Thank you.
        Chair Durbin [presiding]. Thanks, Senator Ossoff. Senator
    Cruz.
        Senator Cruz. Thank you, Mr. Chairman. Gentlemen, every day
    when I'm home in Texas, I hear from Texans who are deeply
    dismayed about the growing politicization and weaponization of
    the Department of Justice and the FBI. If you are not, every
    one of you should be deeply concerned about the damage being
    done to the integrity of the institutions in which you operate.
        My office hears regularly from FBI agents and from
    assistant U.S. attorneys who are likewise concerned about the
    politicization and weaponization of the Department of Justice
    and the FBI. And this is profoundly damaging to the rule of law
    in our Nation.
        Last month, a whistleblower brought to light the existence
    in the FBI of a report in FD-1023 in which the informant
    alleges that President Biden and his family members engaged in
    a $5 million bribery scheme during his time as Vice President.
    Deputy Director Abbate, is it true that the FBI has a report
    making those allegations?
        Mr. Abbate. I'm not going to comment on that, Senator.
        Senator Cruz. And why is that?
        Mr. Abbate. I'm just not going to comment on information we
    received, investigations----
        Senator Cruz. You owe an----
        Mr. Abbate [continuing]. On ongoing matters.
        Senator Cruz [continuing]. Obligation to the American
    people to be candid about evidence of corruption by the
    President of the United States.
        Mr. Abbate. This is an area that I'm not going to get into
    with you, Senator.
        Senator Cruz. Well, I understand you don't want to. And
    that's why people are mad at the FBI. Because you're
    stonewalling and covering up serious allegations of evidence of
    corruption from the President.
        Yesterday, Senator Chuck Grassley stood on the Senate floor
    and alleged that there are 17 recordings of this informant from
    Burisma, Ukrainian natural gas company, 15 of them are
    recordings--voice recordings of him talking to Hunter Biden.
    Two of them are voice recordings of him talking to Joe Biden.
    Deputy Director Abbate, does the FBI have 17 voice recordings
    laying out evidence of a bribery scheme?
        Mr. Abbate. Senator, I would add also that we've worked
    with the House Oversight Committee----
        Senator Cruz. Yes, this is the Senate. We're the other----
        Mr. Abbate [continuing]. To provide the documents that you
    are----
        Senator Cruz [continuing]. Side of the Capitol. This is the
    Senate. Do you have those 17 recordings?
        Mr. Abbate. I'm not going to comment on any investigative
    matter, Senator----
        Senator Cruz. See, that's----
        Mr. Abbate [continuing]. Period.
        Senator Cruz [continuing]. The problem. The FBI--and I've
    had this conversation with Chris Wray, too, this is why you are
    damaging the institution. The American people have a right to
    know whether there is serious, credible evidence that the
    President of the United States took a $5 million bribe. And by
    the way, if it's false--Chairman Durbin just rolled his eyes.
        Chair Durbin. He watches me pretty closely.
        Senator Cruz. If Chairman Durbin were interested in the
    rule of law, we would have a hearing on these allegations. But
    of course, the Democrats don't want a hearing on these
    allegations. And to be clear, if the allegations are false, you
    know who could disprove them? Joe Biden. He could call for this
    to be released publicly. But the FBI is stonewalling. Would
    you----
        Mr. Abbate. Two things----
        Senator Cruz [continuing]. Agree----
        Mr. Abbate [continuing]. Senator.
        Senator Cruz. Sure.
        Mr. Abbate. No one's stonewalling. The 1023----
        Senator Cruz. You just said you refused----
        Mr. Abbate [continuing]. Was provided in response----
        Senator Cruz [continuing]. To answer the question.
        Mr. Abbate [continuing]. To a subpoena by the Oversight
    Committee.
        Senator Cruz. Okay. Then why did you refuse to answer my
    question?
        Mr. Abbate. The pertinent information is there, and I
    reject your assertion that----
        Senator Cruz. Why did you refuse----
        Mr. Abbate [continuing]. The FBI is politicized.
        Senator Cruz [continuing]. To answer my question?
        Mr. Abbate. I just answered your question.
        Senator Cruz. Okay. So, yes, you have a 1023. Do you have
    the 17 recordings, yes or no?
        Mr. Abbate. I'm not going to get further into that,
    Senator.
        Senator Cruz. So you're stonewalling. You can't say, I'm
    not refusing to answer your question, but I won't answer your
    question.
        Mr. Abbate. I'm going to answer within the parameters that
    we operate in, sir.
        Senator Cruz. That's the problem. The FBI has right now an
    unlimited hubris that you believe you are unaccountable. You
    don't believe you're accountable to the United States Congress,
    and you don't believe you're accountable to the American
    people. And you are doing damage.
        The FBI is a great institution. When I go home to Texas,
    people ask me, should we abolish the FBI? Now, I tell them, no,
    because you have heroes and patriots working for you that are
    catching child predators, that are catching terrorists. But
    you're sitting there happily erecting a wall to protect Joe
    Biden.
        Will you provide to this Committee--not the House, the
    Senate Judiciary Committee, will you provide the FD-1023? And
    will you provide the 17 recordings so we can assess what is the
    evidence--the specific, credible evidence that Joe Biden
    personally took a $5 million bribe from a foreign national?
        Mr. Abbate. Senator, we will work with this Committee, you
    and other Members, to provide the information within the
    parameters of the process.
        Senator Cruz. Will you provide the FD-1023, yes or no?
        Mr. Abbate. I will take that back, and we will work with
    our team to----
        Senator Cruz. So you're not answering that. Will you
    provide the 17 recordings?
        Mr. Abbate. We will take that back, and we'll work with you
    and your staff----
        Senator Cruz. So you're not answering that, either. Did you
    investigate in any way, shape, or form these allegations?
        Mr. Abbate. Senator, once again, I'm not going to comment--
    --
        Senator Cruz. So you're not going to say----
        Mr. Abbate [continuing]. On an ongoing investigation.
        Senator Cruz [continuing]. Whether you did your job?
        Mr. Abbate. We do our job to the very best of our ability--
    --
        Senator Cruz. Well, not here. You're not answering a single
    question to the American people. And you may think this is
    esoteric. I promise you, millions of Americans are concerned.
        You know who isn't concerned? Not a single Senate Democrat.
    We're going to go through this whole hearing. Not one Democrat
    will ask a question about this. You know who else isn't
    concerned? The corporate media who is joining with the
    Democrats in covering up this evidence.
        If Joe Biden is innocent, the evidence should be made
    public and demonstrate that he's innocent. But if he is not, is
    it true this informant who alleged that he personally took a
    bribe was an informant the FBI had relied upon previously in
    other investigations, yes, or no?
        Mr. Abbate. Senator, in each and every investigation that
    we have, all the work that we do----
        Senator Cruz. I asked a yes or no question.
        Mr. Abbate [continuing]. The expectation is that every
    logical avenue----
        [Gavel is tapped.]
        Mr. Abbate [continuing]. Of investigation be----
        Senator Cruz. I asked you----
        Mr. Abbate [continuing]. Pursued to its fullest----
        Senator Cruz [continuing]. A yes or no question. Are you
    going to answer it?
        Mr. Abbate. I'm answering your question.
        Senator Cruz. Was the informant one you had relied on
    previously in other investigations, yes or no?
        Mr. Abbate. Senator, we run down every piece of
    information----
        Senator Cruz. You're not answering it then?
        Mr. Abbate [continuing]. And review it----
        Senator Cruz. You're refusing to answer----
        Mr. Abbate [continuing]. Objectively----
        Senator Cruz. So you're refusing to answer the question?
        Mr. Abbate [continuing]. To the fullest extent possible----
        Senator Cruz. You're refusing----
        Mr. Abbate [continuing]. Relentlessly----
        Senator Cruz [continuing]. To answer the question.
        Chair Durbin. Senator, your time has expired.
        Mr. Abbate [continuing]. And in the correctly allowed
    instances.
        Chair Durbin. Senator, your time has expired.
        Senator Cruz. Disgraceful. It's disgraceful, Deputy
    Director Abbate. Disgraceful.
        Chair Durbin. Senator, your time has expired. Senator
    Tillis.
        Senator Tillis. Chairman, I think Senator Blackburn goes
    before me or Senator Welch. I appreciate the opportunity, but.
        Chair Durbin. Thank you, Senator Tillis. It's Senator Welch
    is next.
        Senator Welch. Thank you, Mr. Chairman. I want to thank all
    the witnesses. I'm sitting in a seat that was previously
    occupied by Senator Leahy, who was a champion of civil
    liberties, and a strong supporter of law enforcement, his own
    prosecution background.
        But he, and with the great support of Vermonters, very much
    was concerned about the civil liberty questions that are
    raised. And I've heard from all of the witnesses you share that
    concern, and I certainly do. What Chairman Durbin said in his
    opening remarks in expressing his very serious concern about
    the extraordinary breaches, I share that.
        So a couple of things. One, Senator Cornyn had asked about
    codifying in statute reforms that have been made. And my
    understanding--I think this goes to you, Mr. Olsen--is that you
    would be supportive of any of the reforms that have been made
    to date being codified in statute so it wasn't another episode
    of, ``Trust me, and we'll try to get it right'' ?
        Mr. Olsen. I think that's exactly as the deputy director
    said. I mean, the fundamental point is we are open to engaging
    on reforms and implementing reforms that don't undermine the
    essential effectiveness of Section 702. Certainly----
        Senator Welch. But codifying them.
        Mr. Olsen. And among those would be, right, putting in
    statute where it makes sense to do so. Some of the changes or
    the changes that the FBI has implemented on its own to ensure
    compliance.
        Senator Welch. You know, I just want to make certain that
    we're on the same page here----
        Mr. Olsen. Yes.
        Senator Welch [continuing]. Because it's one thing to say
    trust us, we've learned, and will be good in the future. It's
    another thing to have the force of law behind it.
        Second thing----
        Mr. Olsen. And if I may just say, the rule of--I'm being a
    little--I'm hesitating only because as the lawyer here next to
    Mr. Abbate, I just want to make sure that--we'd want to make
    sure that the language in any statute is----
        Senator Welch. Well, no----
        Mr. Olsen [continuing]. Appropriate, of course.
        Senator Welch [continuing]. That goes without saying.
        Mr. Olsen. Yes.
        Senator Welch. Now, another thing, I know Senator Leahy and
    Senator Lee worked on an amicus amendment, as I understand it.
    Senator Lee--and by the way, he very much appreciated working
    with you on that. He's told me. My understanding is you're
    resistant to that, you're saying for practical reasons.
        But keep in mind, I think the motivation Senator Leahy
    had--I'll speak for my conversation with him, and I've heard
    Senator Lee express it--the interest of maintaining Fourth
    Amendment protections for citizens is constitutional and
    inviolate. So I would expect to advocate for that. Again, you
    answered the question, but I just want to bring that to your
    attention.
        You know, the heart of this is this question of whether
    there is an exception on the warrant protection when a U.S.
    citizen gets swept into this. And I know Mr. Ossoff asked in my
    absence about the warrant protection, but I am wanting to go
    back on that. Why can't we have a warrant when it does involve
    a U.S. citizen?
        And can you make distinctions between a situation where
    there's imminent urgency, and obviously that requires a
    different kind of action versus those situations where
    information comes up. My telephone number is on a telephone
    that's been captured on the battlefield, but there's no urgent
    matter that has to proceed with action. What's the problem with
    providing a continuation of the warrant protection that is
    available to all U.S. citizens outside of FISA?
        Mr. Olsen. Maybe Mr. Fonzone might have more to add to
    this. But let me just say, stepping back, so it's really
    important for me to be clear that when it comes to the
    targeting decision, the initial decision to target, that is
    outside of the Fourth Amendment. Because the targeting
    decisions are focused on non-U.S. persons overseas. It's only
    when the FBI receives----
        Senator Welch. No, I understand that.
        Mr. Olsen [continuing]. A small--yes. It's only 3 percent
    of all of the 702 collection that FBI has access to where it's
    related to an open FBI investigation. So they have 3 percent of
    the lawfully collected information. And it's very common rather
    than rare that the need to search that data, whether it's an
    ongoing cyberattack, for example, or an espionage effort, that
    it is not a degree of urgency to quickly be able to say at the
    very earliest stage of an investigation: We need to understand,
    is this technical identifier associated with this cyberattack?
    Is this hitting other, you know, hospitals or energy companies?
        Senator Welch. Well, my time is coming up, and we'll have
    to--there's real practical questions here. But I go back to
    this absolutely astonishing situation where folks who showed up
    here in Washington that was totally domestic, or Black Lives
    Matter, totally domestic, were searched.
        And, like, how in the world did that happen? Somebody just
    felt like doing it or what? I know my time is up. So I'm going
    to have to stop. But I just want to convey my ongoing concerns
    which I think many of the Committee Members share. Mr.
    Chairman, thank you very much.
        Chair Durbin. Thanks, Senator Welch. Senator Blackburn.
        Senator Blackburn. Thank you, Mr. Chairman. Mr. Abbate, I
    want to come to you because Tennesseans are incredibly
    concerned about the politicization of the FBI. And they have
    watched the FBI target parents, people of faith, people with
    conservative values. And I am often asked what group is going
    to be next, and how did we get to this point?
        Because they have watched the FBI, under your leadership,
    draw their guns on a pro-life advocate. That was stunning to
    them. That was done in front of his wife and children. They
    have labeled parents interested in education as domestic
    terrorists. And all parents should be interested and are
    interested in their children's education. They watched the raid
    on a former President and a political opponent on his home.
        And these have confirmed their worst fears: that there are
    indeed two tiers of justice, and that there is a political
    cabal within the FBI that sees it that way. Because when
    Hillary Clinton mishandled information, and she wiped her email
    server with a tool called BleachBit, and then beat the mobile
    devices with a hammer and destroyed those SIM cards, you all
    basically said there's nothing to see here. There is nothing to
    question.
        And when President Biden mishandled classified documents,
    there was no raid on his home or on his offices. But you see
    how President Trump has been handled with this. So it looks
    like the old playbook of distract and deflect. And the American
    people have a right to be concerned about this.
        Now, I want to talk about Senator Grassley's information
    from yesterday. Because when the FBI produced the document that
    you referred to earlier relating to the Biden bribery
    allegations, and you gave that to House Oversight, you all
    redacted any reference to the fact that the foreign national
    who allegedly bribed Joe and Hunter Biden had those 17 audio
    voice recordings. So first of all, why did you redact that part
    of the information?
        Mr. Abbate. Senator, first, as I said before, your
    assertion, or anyone who makes the assertion that the FBI is
    politicized, I reject it wholeheartedly. It's wrong, and it is
    not true. The work we do----
        Senator Blackburn. Okay, Mr. Abbate, then let me----
        Mr. Abbate [continuing]. And the people I see in the FBI--
    --
        Senator Blackburn [continuing]. Ask you this. You said in
    your response to Senator Cruz that you and the FBI do your job
    to the best of your ability. So why don't you tell me what your
    job is? Is it to defend and shield Joe Biden? Or is your job to
    protect this country and the Constitution of the United States?
    Which is it?
        Mr. Abbate. The job of the FBI is to protect the country,
    keep people safe, and uphold the Constitution of our great
    country----
        Senator Blackburn. So why are----
        Mr. Abbate [continuing]. Period.
        Senator Blackburn [continuing]. You using----
        Mr. Abbate. That's what we work to do every day
    objectively. There are not two standards of justice. There is
    only one. It's applied----
        Senator Blackburn. Practically and by perception----
        Mr. Abbate [continuing]. Equally to each and every person--
    --
        Senator Blackburn [continuing]. There are two standards,
    very clear standards of justice in this country. We see it
    every single day. The American people see this every single
    day. They look at you and they see a politicized entity that is
    weaponizing an agency of the Federal Government against the
    American people.
        Mr. Abbate. That is not the FBI that----
        Senator Blackburn. They see this play out.
        Mr. Abbate [continuing]. I see, Senator.
        Senator Blackburn. That is not the FBI you see. There are a
    lot of good people that work for the FBI, but you have a
    political cabal there. So why did you decide to conceal the
    information in that revelation to the House Oversight
    Committee? Why did you redact all of that rep--pertaining to
    the phone calls?
        Mr. Abbate. We have exceptional people----
        Senator Blackburn. You're not----
        Mr. Abbate [continuing]. In the FBI, the very best----
        Senator Blackburn [continuing]. Answering the question. Why
    did you redact that information?
        Mr. Abbate [continuing]. And they work relentlessly every
    day to keep----
        Senator Blackburn. You chose not to reveal----
        Mr. Abbate [continuing]. This country safe, and to protect
    people----
        Senator Blackburn [continuing]. That the calls----
        Mr. Abbate [continuing]. Period.
        Senator Blackburn [continuing]. Were there, and Senator
    Grassley found it out anyway. Is that accurate?
        Mr. Abbate. With regard to the document----
        Senator Blackburn. You chose to redact it, yes or no?
        Mr. Abbate. We often redact documents to protect----
        Senator Blackburn. So you chose----
        Mr. Abbate [continuing]. Sources and methods----
        Senator Blackburn [continuing]. To redact the fact that
    there are 17 voice recordings, two of those with the now
    President. You chose to redact that and not to give that to
    House Oversight.
        Mr. Abbate. I have----
        Senator Blackburn. Is that accurate?
        Mr. Abbate [continuing]. No idea if there are voice
    recordings or not. What I will tell you with respect----
        Senator Blackburn. You have no----
        Mr. Abbate [continuing]. To the document, the document was
    redacted to protect the sources. Everyone knows.
        Senator Blackburn. Well then, let----
        Mr. Abbate [continuing]. And this is a question of life----
        Senator Blackburn [continuing]. My time potentially
    expired----
        Mr. Abbate [continuing]. And death, potentially.
        Senator Blackburn [continuing]. But I think it would be
    helpful if when you came before us, if you were willing to
    answer the questions. It would help to remove the perception
    that the American people have because this is what they see.
    They see you do it every day. And that is politicizing the FBI
    and using it against the American people who don't happen to be
    named Biden, Clinton, or one of the elites. Thank you, Mr.
    Chairman.
        Chair Durbin. Senator Hawley.
        Senator Hawley. Thank you, Mr. Chairman. Mr. Abbate, let me
    just stay with you. You just started to answer Senator
    Blackburn's question that not releasing the 1023 or talking
    about it as a matter of life and death. Question of life and
    death, you said. Explain.
        Mr. Abbate. It is potentially a question of life and
    death----
        Senator Hawley. For whom?
        Mr. Abbate [continuing]. With regard to the source of the
    information.
        Senator Hawley. So--okay. So now we've confirmed that the
    document exists. That's progress because the FBI Director
    initially denied that it exists.
        Mr. Abbate. No.
        Senator Hawley. Why did he do that?
        Mr. Abbate. We have already and previously acknowledged the
    existence of the documents.
        Senator Hawley. Yes. After you first denied it. Now, when a
    Member of this Committee read it. Right? The FBI Dir--let's
    just get the record straight. The FBI Director initially said
    it doesn't exist. Then Senator Grassley said, I've read it.
    Then he said, oh, okay, well, got you. I guess it does exist.
    Now, you're going back and forth with Members of this Committee
    what's in it. Why don't you just release it? Is it classified?
        Mr. Abbate. The document is not classified.
        Senator Hawley. Okay. Will you commit to releasing it?
        Mr. Abbate. Senator, we'll take that back, and we will work
    with you and this Committee----
        Senator Hawley. How about just a yes or no? Will you commit
    to releasing this unclassified document that alleges that the
    President of the United States--the President of the United
    States has taken $5 million or more in bribes from a foreign
    nation?
        Mr. Abbate. The document has already been released pursuant
    to a subpoena to the House Oversight Committee. We will----
        Senator Hawley. Has it been released to this Committee?
        Mr. Abbate [continuing]. Work with this Committee within
    the parameters that are established to meet----
        Senator Hawley. Will you release----
        Mr. Abbate [continuing]. The request.
        Senator Hawley [continuing]. The document to the public?
    It's unclassified. Don't you think the American people have a
    right to see it?
        Mr. Abbate. Senator, the document, as you know, contains
    sensitive information that has bearing on the life of the
    source of the information, potentially.
        Senator Hawley. You can redact the source's name. We do
    this all the time.
        Mr. Abbate. In some instances, Senator, and I know you know
    this, that is not sufficient to protect people. And that's what
    we strive and work to do each and every day. And I hope you
    would take that seriously, too.
        Senator Hawley. Oh, I take it very seriously. But I also
    take seriously the fact that your institution has repeatedly
    abused its authority, has repeatedly targeted political
    opponents.
        Your institution is the one that went to the door of pro-
    life protesters with SWAT teams to try and intimidate people
    because of their speech.
        Your institution is the one that treated parents as
    domestic terrorists because of their speech.
        Your institution is the one that according to the court,
    the FISA Court, ran 278,000 unwarranted, probably illegal
    queries on Americans. Right? That was your institution.
    Correct?
        Mr. Abbate. There are--with respect to the compliance
    incidents, yes. Some of the other things you cited, we can take
    them one by one. They are not accurate.
        Senator Hawley. Compliance. You would characterize the
    unlawful querying 278,000 times of American citizens as
    compliance issues?
        Mr. Abbate. We've said before, I've said, that they're
    totally unacceptable.
        Senator Hawley. Who's been fired for it?
        Mr. Abbate. Individuals involved are handled through the
    disciplinary process.
        Senator Hawley. Who's been fired for it?
        Mr. Abbate. We have in the case of the unintentional
    instance where something similar happened, we have fired people
    in the past.
        Senator Hawley. I'm sorry, what does that word salad mean?
    The unintentional instance--what does that mean? Who's been
    fired for the 278,000 times that you improperly or illegally
    queried the database for American citizens?
        Mr. Abbate. When we find intentional incidents----
        Senator Hawley. Were you saying that the 278,000 queries
    were unintentional?
        Mr. Abbate. I believe that's correct.
        Senator Hawley. Wow, 278,000 times American citizens'
    information was queried by your agency unintentionally? That's
    your testimony?
        Mr. Abbate. I would want to go back and check that,
    Senator.
        Senator Hawley. Well, that's what you just told me.
        Mr. Abbate. My understanding is that the vast majority of
    the----
        Senator Hawley. Wait, that's different. You just said it
    was. You just said it was unintentional. Now it's the vast
    majority. Which is it? Do you know?
        Mr. Abbate. I would want to go back and check it.
        Senator Hawley. So you don't know?
        Mr. Abbate. My understanding is that likely all are--were
    unintentional----
        Senator Hawley. Likely all.
        Mr. Abbate [continuing]. In nature.
        Senator Hawley. So first it was all of them. Then it was
    vast majority. Now, it's likely all. So you don't know, is the
    answer to the question.
        Mr. Abbate. I don't know the answer as we sit here today,
    but I----
        Senator Hawley. You could have started with that, probably.
        Mr. Abbate [continuing]. Will find out and get back to you.
        Senator Hawley. Who was fired for the lies to the FISA
    Court for the Carter Page warrant. Who was fired for that?
    Anybody? Has anybody been held accountable for your institution
    deliberately lying to a FISA Court to get a wiretap on an
    ongoing Presidential campaign?
        Mr. Abbate. There is an ongoing disciplinary process with
    respect to individuals involved in that.
        Senator Hawley. Here's the deal. You're back in front of us
    asking for the reauthorization of extraordinary authorities.
    Multiple courts have uncovered extraordinary abuses perpetrated
    by your agency.
        You are, at the same, time concealing information about
    serious allegations made against the President of the United
    States even as your institution also targets his chief
    political opponent in an unprecedented way. Why would we ever
    give you the blank check that you want to continue surveilling
    American citizens in an improper manner? Why would we ever do
    that?
        Mr. Abbate. Senator, we're here to talk about reforms.
    Today, I did get confirmation that the query instances----
        Senator Hawley. No, we're not. We're here to talk about the
    reauthorization of Section 702. Why would we reauthorize it
    given your track record of abuse, and illegal improper
    surveillance, and political targeting? Why would we do that?
    Why would it be appropriate for this body to do that?
        Mr. Abbate. We've made significant reforms and implemented
    corrective measures. We've seen significant progress as a
    result of that, Senator. The----
        Senator Hawley. So you say.
        Mr. Abbate [continuing]. Queries that you mentioned early
    were, in fact, unintentional. That's what I was just told by my
    counterpart.
        Senator Hawley. That--that is an amazing----
        Mr. Abbate. That is to clarify your earlier question.
        Senator Hawley. So your testimony is the 280,000 queries of
    American citizens was unintentional. That's your final answer?
        Mr. Abbate. That's how they were assessed by that team that
    did the review. I'm not satisfied with that. That's----
        Senator Hawley. Yes. I don't believe that at all.
        Mr. Abbate [continuing]. Why we've implemented further
    measures as I announced earlier today.
        Senator Hawley. Yes. I don't believe that at all. And
    frankly, we've heard from your agency a thousand times that
    you're going to do better. We'll do better. You promised after
    the abuses of Title I you'd do better. And then we find out
    that in the meantime, you're illegally querying 280,000----
        [Gavel is tapped.]
        Senator Hawley [continuing]. American citizens' data. It's
    just--it's unbelievable. Frankly, everything you say is
    unbelievable.
        Chair Durbin. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chair. Thank you all for
    being here, and thanks to all of the hardworking law and
    Federal law enforcement officers that I believe are
    overwhelmingly majority good patriots doing a great service and
    keeping our country safer.
        I appreciate the documents that you all sent over.
    Particularly, we can talk about what it's doing.
        A couple of months ago, I went over to the FBI. I saw a
    demonstration of many of the changes that you've implemented on
    the online query system. I think they're very promising. It
    also begs the question, why didn't we have it before? But we've
    corrected that mistake.
        Senator Cornyn mentioned codification. I had that
    discussion with the Department of the changes, Mr. Abbate, that
    you all have made. I also would encourage every Member to see
    this in action and go through the demonstration that I did. I
    think it's positive progress.
        But I had a question for you, Mr. Abbate, on the three
    strikes. I'm trying to figure out how we get to reauthorizing
    Section 702. It would be irresponsible of us to not figure out
    a way to do it. It's critically important. A very important
    tool.
        The three-strikes thing, though, kind of struck me as why
    should anybody get past one strike? I mean, and to me, there
    are, ``Oops, I just didn't know. I just finished training.''
    Maybe that's a legitimate reason. But three strikes against the
    controls that you're putting in place before what action
    occurs? What happens with strike three? I'm assuming they're
    out, but what are they out of?
        Mr. Abbate. It could include everything up to dismissal,
    Senator. And I think it's important to clarify here. This
    three-strikes applicability refers to those that are deemed to
    be--those compliance errors that are--or incidents that are
    deemed to be unintentional. And it's an escalating approach
    with respect to the three strikes.
        If someone was to unintentionally commit an error like this
    three times, then they would be referred for greater discipline
    in addition to the things that come into play. Their FISA
    access would be removed upon the occurrence of the first
    incident. They would undergo full mandatory retraining. They
    would have to sit down and be counseled by one of the attorneys
    from our Office of General Counsel.
        And it gives us the ability to, you know, evaluate the
    conduct and determine whether it is truly unintentional or
    whether it should be elevated to the category of reckless or
    even intentional, which would warrant more severe disciplinary
    action.
        One of the things I've struggled with as I've looked at the
    compliance incidents--and this gets back to the other Senator's
    earlier question--those that are unintentional. Given the
    measures we've put in place now with the system adaptations,
    the prompts with regard to sensitive queries, the written
    justification, the parameters around batch queries and
    sensitive queries, and the opt-in, it's hard to imagine that it
    would be unintentional if someone pushes through all of those
    measures in order to run a query that is found to be
    noncompliant.
        And that's part of the strength of the sort of regime of
    reforms that we've put in place now. Because prior, and this
    was not satisfactory to any of us, many of them were
    categorized as unintentional when they may not have otherwise
    been, and they may have risen to the level of recklessness or
    even intentionality.
        Senator Tillis. Could you talk a little bit about--I think
    that with Crossfire--I mean, people have raised some concerns,
    and, I think, rightfully so about Crossfire Hurricane. We all
    know it. That was mostly Title I as opposed to Section 702. Do
    you agree with that, and can you explain the differences?
        Mr. Abbate. I do agree with that, Senator. That was Title I
    FISA. That's the traditional FISA where we go to the FISA
    Court. It involves a U.S. person, and I'll defer to my
    colleague here to get into legalities. But we are--in those
    instances, we go to the FISA Court. We have to establish
    probable cause in order to get authorization to implement
    surveillance on the individual targeted.
        Senator Tillis. Mr. Olsen, in response to, I think, one of
    Senator Ossoff's questions about this information being used in
    an investigation. You--I think you stated a relatively small
    number of people who are actually swept into that category. Can
    you elaborate a little bit more? And over time, are we seeing
    fewer of those? Is that because we're getting trained better,
    or it's just because we're honing our investigations?
        Mr. Olsen. Sure. When we were talking about is the FBI's
    authority to conduct a query of the data it has access to for
    simply evidence of a crime that is not national security
    related. It's exceedingly rare. And it's rare because there has
    to be a--we're talking about a database that is a foreign
    intelligence database.
        So the odds of finding simply evidence of a non-national
    security crime--bank robbery, public corruption--in a foreign
    intelligence database is just so unlikely. In the last
    recording period, there were 16 instances. But actually, 14 of
    those 16 instances was where the FBI had an affirmative
    obligation to search for evidence of a crime because of
    discovery or Brady obligations in an ongoing case.
        So it is not, obviously, the main purpose. It is--I would
    consider it sort of a backstop or failsafe if there is
    evidence, but a non-national security crime that the FBI would
    want to see or follow up on. But it's just so exceedingly rare.
    It's not the focus, certainly, of our efforts.
        Senator Tillis. My time has expired. But I would encourage,
    as I said after that demonstration of the changes that you've
    made, that we need to see a meaningful legislative proposal on
    the codification of all the measures that you put into place.
    And I think, probably based on the comments you have here, this
    is not an ideological dispute for the most part. You've got
    different people supportive, other people that want to go dark.
    We need the Department to fairly quickly get us some baseline
    text that those of us who want to get it reauthorized can begin
    to explain how we're addressing the problems that are legit
    problems. And every Member here who's frustrated has a reason
    to be. Thank you, all.
        Mr. Olsen. Thank you, Senator.
        Chair Durbin. Thanks, Senator Tillis. Pursuant to the
    procedures and traditions of the Committee when it comes to the
    debate of 702, we have a session reserved in the SCIF SVC 217
    as soon as we adjourn today. And I don't know, we think several
    colleagues are going to come to that meeting to ask questions
    that couldn't be discussed in open session.
        But I thank you for your cooperation, your attendance
    today, and I thank the Members for their participation. And the
    meeting of the Senate Judiciary Committee will stand in recess,
    subject to reconvening at SVC 217 upon arrival. Thank you.
        [Whereupon, at 12:21 p.m., the Committee recessed.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Submitted by Chair Durbin:

      Advocacy For Principled Action In Government, et al., letter....    90

      American Civil Liberties Union, et al., statement...............    99

      Center for Democracy & Technology (CDT), statement..............   103

      Goitein, Elizabeth, statement...................................   108

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