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[Senate Hearing 110-399]
[From the U.S. Government Printing Office]
S. Hrg. 110-399
MODERNIZATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
TUESDAY, MAY 1, 2007
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
----------
Hearing held in Washington, DC:
May 1, 2007.................................................. 1
Member Statements:
Rockefeller, Hon. John D. IV, Chairman, a U.S. Senator from
West Virginia.............................................. 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri................................................... 4
Feingold, Hon. Russell D., a U.S. Senator from Wisconsin,
prepared statement......................................... 51
Witness Statements:
McConnell, J. Michael, Admiral, USN, Ret., Director of
National Intelligence...................................... 17
Prepared statement....................................... 7
Wainstein, Hon. Kenneth L., Assistant Attorney General,
National Security Division, U.S. Department of Justice..... 45
Prepared statement....................................... 23
Statements for the Record:
Bankston, Kevin S., staff attorney, Electronic Frontier
Foundation, prepared statement............................. 73
Dempsey, James X., policy director, Center for Democracy and
Technology, prepared statement............................. 83
Fein, Bruce, prepared statement.............................. 98
Frederickson, Caroline, director, Washington Legislative
Office, American Civil Liberties Union, prepared statement. 104
Kris, David S., letter of response to government proposal.... 113
Martin, Kate, director, and Lisa Graves, deputy director,
Center for National Security Studies, prepared statement... 186
Spaulding, Suzanne E., prepared statement.................... 207
Taipale, K.A., executive director, Center for Advanced
Studies in Science and Technology Policy, prepared
statement.................................................. 218
MODERNIZATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
----------
TUESDAY, MAY 1, 2007
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., in
room SD-106, Dirksen Senate Office Building, the Honorable Jay
Rockefeller, Chairman of the Committee, presiding.
Present: Senators Rockefeller, Feinstein, Wyden, Mikulski,
Feingold, Nelson of Florida, Whitehouse, Levin, Bond, Warner,
Hagel, and Snowe.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
Chairman Rockefeller. This hearing is begun, and I welcome
all of our testifiers. Other members of the Committee will be
coming in. I know some of the caucuses just broke up.
The Select Committee on Intelligence meets today in open
session, something we don't often do, to consider whether the
scope and application regarding the Surveillance Act needs to
change to reflect the evolving needs for the timely collection
of foreign intelligence. An extraordinarily complicated
subject, this is.
At the Committee's request, the Administration has
undertaken a comprehensive review of the Foreign Intelligence
Surveillance Act, commonly referred to as FISA. Out of this
review, the Administration proposed what it believes would
modernize the laws governing the way in which we gather foreign
intelligence with the use of electronic surveillance.
Our consideration of the Administration's proposal and
alternatives will be rooted in the Intelligence Committee's 30-
year experience with our Nation's long and delicate effort to
strike that elusive right balance between effective
intelligence collection for our national security and the
constitutional rights and privacy interests of Americans.
The Intelligence Committee's existence came out of the work
of the Church Committee and others in the mid-seventies to
bring to light abuses in the electronic surveillance of
Americans. One of the Committee's first tasks was to work with
the Senate Judiciary Committee and with the Ford and Carter
Administrations from 1976 to 1978 to enact the Foreign
Intelligence Surveillance Act. As we take a fresh look at the
current law, we will again be working with our colleagues in
the Senate Judiciary Committee.
FISA involves both the judicial process on the one hand and
the collection of intelligence. Our Committee's contribution to
this process will be our ability to assess the relationship
between the public realm of legislative reforms and the
classified realm of intelligence collection. By necessity, much
of the Committee's assessment must occur in a classified
setting; yet while most of what we do, in contrast to the
Judiciary Committee, will occur in closed session, I believe it
is important to hold our hearing today in open session.
The purpose of today's hearing is to enable the
Administration to explain to the Senate and to the American
people as openly as possible the reasons why public law on
these vital matters should be changed.
I would like to make a few observations about the
Administration's legislative proposal before us.
One part of the Administration's bill proposes to terminate
controversies now in litigation in various courts arising from
the warrantless surveillance program that the President has
labeled ``the Terrorist Surveillance Program.'' It would bar
any lawsuit against any person for the alleged provision to any
element of the intelligence community information or assistance
for any alleged communications intelligence activity.
Under the Administration's proposal, this immunity
provision would be limited to alleged assistance from September
11, 2001, to 90 days after enactment of any change in the law,
were there to be one. We will carefully examine this immunity
process and proposal and possible alternatives to it--it is not
without controversy--as we will all sections of the
Administration bill. But I do believe that the Administration
is going to have to do its part, too.
The Vice Chairman and I have stressed to the Administration
repeatedly that the Committee must receive complete information
about the President's surveillance program in order to consider
legislation in this area. This is a matter of common sense. We
cannot legislate in the blind. We have made some progress
towards that end, but there are key pieces of requested
information that the Committee needs and has not yet received.
These include the President's authorizations for the
program and the Department of Justice's opinion on the legality
of the program. My request for these documents is over a year
in length, and Vice Chairman Bond and I restated the importance
of receiving these documents in our March letter that in fact
called this hearing. The Administration's delay in providing
these basic documents is incomprehensible, I think,
inexcusable, and serves only to hamper the Committee's ability
to consider the liability defense proposal before it--
inadequate information.
Congress is being asked to enact legislation that brings to
end lawsuits that allege violations of the rights of Americans.
In considering that request, it is essential that the Committee
know whether all involved, government officials and anyone
else, relied on sound, legal conclusions of the government's
highest law officer. The opinions of the Attorney General are
not just private advice. They are an authoritative statement of
law within the Executive branch.
From our government's beginning in 1789 until 1982, there
have been 43 published volumes of opinions of Attorneys
General. Since then, there have been 24 published volumes of
the opinions of DOJ's Office of Legal Counsel. From time to
time, of necessity, a few will be classified. While those
cannot be published, they can and should be provided to the
congressional intelligence committees. We're in the classified
business too, and we stick to it. There is simply no excuse for
not providing to this Committee all of the legal opinions on
the President's program.
The Administration's proposal to modernize FISA, if
enacted, would be the most significant change to the statute
since its enactment in 1978. It will be our duty to carefully
scrutinize these proposed changes and ask many questions. And
let me identify three.
First, from the beginning, FISA has required the approval
of the FISA Court for the conduct of electronic surveillance
done by wiretapping ``in'' the United States of America of
communications ``to or from'' a person in the United States.
The Judiciary Committee explained in its 1977 report to the
Senate that this covers the wiretapping in the United States of
the international communications of persons in the United
States. The Administration would eliminate that requirement
from the definition of electronic surveillance. An important
question is whether that change will give the Attorney General
authority, without a court warrant, to wiretap in the United
States international communications that are to or from a
person in the United States, most of whom will be United States
citizens.
If so, what are the reasons for changing the judgment of
the Congress in 1978 that a FISA order should be required for
such wiretapping in the United States? How will that affect the
private interests of U.S. citizens and permanent residents in
their international communications?
Second, the Administration proposal would expand the power
of the Attorney General to order the assistance of private
parties without first obtaining a judicial FISA warrant that is
based on the probable cause requirements in the present law. A
limited form of judicial review will be available after those
orders are issued. Although there are exceptions, our American
legal tradition does not generally give our Attorney General
the power to give such orders. Instead, it gives the Attorney
General the power to go to the courts and ask for such orders.
Is the Administration's proposal necessary, period? And does it
take a step further down a path that we will regret as a
nation?
Third, the Attorney General announced in January that the
Administration had replaced the President's surveillance
program with the orders of the FISA court. While many of my
colleagues believe that the President's program should have
been placed under court review and authorization much earlier,
it was nonetheless good news. The question that we must now ask
is whether, just months after that important development, any
part of the Administration's bill will enable the President to
resume warrantless collection with this legislation as the
statutory basis for so doing.
Before turning to the Vice Chairman for his opening
statement, I make a concluding remark or so. The Administration
proposal was submitted to us by the Director of National
Intelligence, Director Mike McConnell, who will take the lead
in presenting it to us today. The leadership of the DNI in this
matter is a positive example of reform at work, and we welcome
it.
General Keith Alexander, the Director of the National
Security Agency, is representing the National Security Agency
here today. The NSA, people should know, has a limited ability
to speak for itself in public, but we can, the rest of us, and
so I'd like to share this thought with my colleagues and with
the American public.
NSA does not make the rules. It has no wish to do so.
Congress sets policy for the NSA in law, and the President
issues directives that the NSA must follow. Every American
should have confidence, as we do from our close observation of
this important truth, that the ranks of the NSA are filled with
dedicated and honorable people who are committed to protecting
this Nation while scrupulously following the laws and
procedures designed to protect the rights and liberties of
Americans.
Also on our panel is Keith Wainstein, the Assistant
Attorney General for National Security. He is the first to hold
that newly-created position. He has that for the first time. In
our preparation for our hearing and other matters in recent
months, we have been aided enormously by key personnel in his
division as well as the Office of Legal Counsel.
Finally, the main purpose of today's hearing is to give the
Administration a chance to place on the public record its
proposal for change in public law. We also have invited
interested members of the public, particularly individuals or
organizations who have assisted the Congress from time to time
with their views on FISA matters, to submit statements for our
record about these legislative proposals.
I now turn to our distinguished Vice Chairman, Senator
Bond.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you very much, Mr. Chairman. I
join with you in welcoming the panelists and say how gratifying
it is to see the intelligence community coming together working
in a much more collaborative mood, an attitude that is very
helpful.
We wish only that we could have the legislative structure
that would facilitate such a cooperative working, and I join
with you, having visited NSA, in paying the highest respect and
regards to the work of the people at the NSA.
Since September 11, we've fought a myriad of enemies united
in their ideological hatred of America--agile, widespread,
technologically advanced. To prevail against them, our
intelligence community needs tools that are flexible and can
meet changing threats and circumstances. The purpose of today's
hearing is to discuss whether the current statute provides
enough flexibility and, if not, how do we update it.
Before I address serious aspects of the Administration's
proposal, let me share some concerns about holding this
particular hearing in a public setting before this Committee
covers this issue behind closed doors.
The issue of FISA Modernization has come to the fore
because of the very unfortunate public disclosure of the
President's highly-classified Terrorist Surveillance Program.
Our Committee has been engaged in the oversight of the
President's program since its inception, and now every member
of this Committee, as I think they should, and an increased
number of staff are read into the program, and we appreciate
the clearance that has been expanded.
But as I've said before, the early warning system that is
now under FISA is essential to defeating our enemies who are
determined to inflict grave harm upon our citizens and upon the
infrastructure of this Nation. I believe that having an open
hearing before a closed hearing is not advisable, and I've
given the Chairman recommendations in this regard.
Other Committees, like the Senate Judiciary Committee, have
already considered aspects of this issue in open session
because they were looking at it from a judicial point of view.
Those members were not read in, for the most part, to the
President's program. Our Committee looks at the issue from an
intelligence and operational point of view, and our members
therefore are read into the program.
There are several key reasons why I believe that proceeding
first in open session is inadvisable.
First, this is an area where there is a very fine line
between what is classified, sensitive or just shouldn't be
highlighted in public.
Second, we've put witnesses before us in a bad position
where they may be unable to respond to our question because the
best responses are classified, including the best reasons to
justify the new legislation they are proposing.
Third, although members of this Committee will go to a
closed session and likely be satisfied with classified answers,
the public may be left with the false impression that either
the witnesses are not forthcoming or not fully answering our
questions or even have good arguments. Worse yet, and with this
topic in particular, if one of us were to make an honest
mistake in wandering into sensitive territory, we could risk
public exposure of vital intelligence collection methods that
would significantly harm our intelligence capabilities.
Please don't misunderstand me, Mr. Chairman. I have
confidence in our membership. However, I believe one of the
reasons our Committee was created was to explore sensitive
areas of national intelligence, to hash them out behind closed
doors and to determine the best way to discuss them publicly,
and then proceed with the public statements and report on them
responsibly to the Senate with unclassified legislation.
And as the Chairman said, I believe that it is very
important that there be a public discussion and I agree with
the Chairman that that is a significant element. But I am
troubled by proceeding first in public with a very sensitive
national intelligence matter. I think we could serve our
constituents and our national interests and the witnesses
before us, ourselves and the American people if we had first
proceeded in closed session. But that issue has been resolved.
I would caution, however, that all of us, Members and
witnesses, will have to be especially diligent to ensure that
questions and responses do not reveal any classified or
sensitive information. And we all share that responsibility.
And I would encourage the witnesses that we understand you're
not trying to be less than forthcoming if you reserve answers
to a later closed session.
Turning now to the subject at hand, to examine the FISA
statute, the Administration has offered some important
suggestions and I expect that our witnesses will tell us why
the changes are necessary and answer questions.
For instance, the Administration proposed to update the
definition for the term ``electronic surveillance'' that will
make it technology-neutral, unlike the current definition,
which makes distinctions between wire, radio and other
communications. The Administration proposal would modify the
time period for emergency authorizations from 72 to 168 hours
to ease the strain on vital resources within the Department of
Justice and the FBI.
A long-overdue change is to update the FISA definition of
the term ``contents'' to make it consistent with the definition
used by the FISA pen register provision and the criminal
wiretap statute. It simply makes no sense to have two different
definitions for the same term in the same statute.
Another important improvement is to streamline FISA
applications and orders. This streamlining would be consistent
with one of the recommendations this Committee's staff audit
made on the FISA project in 2005.
In summary, these are just some of the important issues
we're going to discuss today. We must remember that change
simply for change's sake is not the goal. Ensuring the
collection capabilities of our intelligence community now and
in the future should be the goal.
As we learned from the events of September 11, what we do
here will have lasting effects not just on our intelligence
sources and methods, but on our country's security.
Mr. Chairman, I'm sure that all of us look forward to a
full and frank discussion about FISA modernization, the
Administration's proposal, and the impact on our sources and
methods. Our witnesses have considerable experience and
credibility in matters of national security and intelligence,
and I look forward to hearing their opinions.
I do understand the public interest in this subject, and
I'll have some questions for the Administration during open
session. However, as any full discussion will involve
classified intelligence sources and methods, I would urge all
my colleagues to exercise extra care in their questions and
comments this afternoon.
With that, Mr. Chairman, I thank you for holding the
hearing, and I look forward to hearing from our witnesses.
Chairman Rockefeller. Thank you. I appreciate your comments
very much, and I join you in always the concern of crossing the
line. I do think it's important, however, that assuming that we
can discipline ourselves not to cross the line, which I fully
believe, I certainly know that you all can, and I certainly
think that we can, that having this put before the American
public in broad terms is useful, and then we go after it in a
more vigorous way in closed session.
Having said that, Director McConnell, please proceed.
[The prepared statement of Director McConnell follows:]
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STATEMENT OF ADMIRAL J. MICHAEL McCONNELL, USN, RET., DIRECTOR
OF NATIONAL INTELLIGENCE ACCOMPANIED BY: LIEUTENANT GENERAL
KEITH ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY; BENJAMIN
A. POWELL, GENERAL COUNSEL, DIRECTOR OF NATIONAL INTELLIGENCE;
VITO POTENZA, GENERAL COUNSEL, NATIONAL SECURITY AGENCY
Director McConnell. Good afternoon, Chairman Rockefeller,
Vice Chairman Bond, members of the Committee. Thank you for
inviting us to come today to engage with the Congress on
legislation that will modernize the Foreign Intelligence
Surveillance Act, as you mentioned, FISA--I'll refer to it as
FISA from this point on--which was passed in 1978.
In response to your guidance from last year on the need to
revise FISA, the Administration has worked for over the past
year, with many of you and your staff experts, to craft the
proposed legislative draft. It will help our intelligence
professionals, if passed, protect the Nation by preventing
terrorist acts inside the United States.
Since 1978, FISA has served as the foundation to conduct
electronic surveillance of foreign powers or agents of foreign
powers inside the United States. We are here today to share
with you the critically important role that FISA plays in
protecting the Nation's security, and how I believe the
proposed legislation will improve that role, while continuing
to protect the civil and the privacy rights of all Americans.
The proposed legislation to amend FISA has four key
characteristics. First, it makes the statute technology-
neutral. It seeks to bring FISA up to date with the changes in
communications technology that have taken place since 1978.
Second, it seeks to restore FISA to its original focus on
protecting the privacy interests of persons inside the United
States. Third, it enhances the government's authority to secure
assistance by private entities, which is vital for the
intelligence community to be successful. And fourth, it makes
changes that will streamline FISA administrative processes so
that the intelligence community can use FISA as a tool to
gather foreign intelligence information more quickly and more
effectively.
The four critical questions that we must address in
collection against foreign powers or agents of foreign powers
are the following. First, who is the target of the
communications? Second, where is the target located? Third, how
do we intercept the communications? And fourth, where do we
intercept the communications? Where we intercept the
communications has become a very important part of the
determination that must be considered in updating FISA.
As the Committee is aware, I've spent the majority of my
professional life in or serving the intelligence community. In
that capacity, I've been both a collector of information and a
consumer of intelligence information. I had the honor of
serving as the Director of the National Security Agency from
1992 to 1996. In that position, I was fully aware of how FISA
serves a critical function enabling the collection of foreign
intelligence information.
In my first 10 weeks on the job as the new Director of
National Intelligence, I immediately can see the results of
FISA-authorized collection activity. The threats faced by our
Nation, as I have previously testified to this Committee, are
very complex and they are very many. I cannot overstate how
instrumental FISA has been in helping the intelligence
community protect the Nation from terrorist attacks since
September 11, 2001.
Some of the specifics that support my testimony, as has
been mentioned, cannot be discussed in open session. This is
because certain information about our capabilities could cause
us to lose the capability if known to the terrorists. I look
forward to elaborating further on aspects of the issues in a
closed session that is scheduled to follow.
I can, however, make the following summary-level comment
about the current FISA legislation. Since the law was drafted
in a period preceding today's global information technology
transformation and does not address today's global systems in
today's terms, the intelligence community is significantly
burdened in capturing overseas communications of foreign
terrorists planning to conduct attacks inside the United
States.
Let me repeat that for emphasis. We are significantly
burdened in capturing overseas communications of foreign
terrorists planning to conduct attacks inside the United
States. We must make the requested changes to protect our
citizens and the Nation.
In today's threat environment, the FISA legislation is not
agile enough to handle the community's and the country's
intelligence needs. Enacted nearly 30 years ago, it has not
kept pace with 21st century developments in communications
technology. As a result, FISA frequently requires judicial
authorization to collect the communications of non-U.S.--that
is, foreign--persons located outside the United States.
Let me repeat again for emphasis. As a result, today's FISA
requires judicial authorization to collect communications of
non-U.S. persons--i.e., foreigners--located outside the United
States. This clogs the FISA process with matters that have
little to do with protecting civil liberties or privacy of
persons in the United States. Modernizing FISA would greatly
improve that process and relieve the massive amounts of
analytic resources currently being used to craft FISA
applications.
FISA was enacted before cell phones, before e-mail and
before the Internet was a tool used by hundreds of millions of
people worldwide every day.
There are two kinds of communications. It's important to
just recapture the fact, two kinds of communications--wire and
wireless. It's either on a wire--could be a copper wire, a
fiber wire--it's on a wire or it's wireless, meaning it's
transmitted through the atmosphere.
When the law was passed in 1978, almost all local calls
were on a wire. Almost all local calls, meaning in the United
States, were on a wire, and almost all long-haul communications
were in the air, were known as wireless communications.
Therefore, FISA in 1978 was written to distinguish between
collection on a wire and collection out of the air or against
wireless.
Now in the age of modern communications today, the
situation is completely reversed. It's completely reversed.
Most long-haul communications--think overseas--are on a wire--
think fiberoptic pipe. And local calls are in the air. Think of
using your cell phone for mobile communications.
Communications technology has evolved in ways that have had
unforeseen consequences under FISA, passed in 1978.
Technological advances have brought within FISA's scope
communications that we believe the 1978 Congress did not intend
to be covered. In short, communications currently fall under
FISA that were originally excluded from the Act--and that is
foreign-to-foreign communications by parties located overseas.
The solution is to make FISA technology-neutral. Just as
the Congress in 1978 could not anticipate today's technology,
we cannot know what technology may bring in the next 30 years.
Our job is to make the country as safe as possible by providing
the highest quality intelligence available. There is no reason
to tie the Nation's security to a snapshot of outdated
technology.
Additionally, FISA places a premium on the location of the
collection. Legislators in 1978 could not have been expected to
predict an integrated global communications grid that makes
geography an increasingly irrelevant factor. Today, a single
communication can transit the world even if the two people
communicating are only located a few miles apart. And yet
simply because our law has not kept pace with technology,
communications intended to be excluded from FISA are in fact
included. This has real consequence on the intelligence
community working to protect the Nation.
Today intelligence agencies may apply, with the approval of
the Attorney General and the certification of other high level
officials, for court orders to collect foreign intelligence
information under FISA. Under the existing FISA statute, the
intelligence community is often required to make a showing of
probable cause.
Frequently, although not always, that person's
communications are with another foreign person overseas. In
such cases, the statutory requirement is to obtain a court
order, based on a showing of probable cause; that slows, and in
some cases prevents altogether, the government's effort to
conduct surveillance of communications it believes are
significant to national security, such as a terrorist
coordinating attacks against the Nation located overseas.
This is a point worth emphasizing, because I think many
Americans would be surprised at what the current law requires.
To state the case plainly, when seeking to monitor foreign
persons suspected of involvement in terrorist activity who are
physically located in foreign countries, the intelligence
community is required under today's FISA to obtain a court
order to conduct surveillance. We find ourselves in a position,
because of the language in the 1978 FISA statute, simply--we
have not kept pace with the revolution in communications
technology that allows the flexibility we need.
As stated earlier, this Committee and the American people
should know that the information we are seeking is foreign
intelligence information. Specifically, this includes
information relating to the capabilities, intentions and
activities of foreign powers or agents of foreign powers,
including information on international terrorist activities.
FISA was intended to permit the surveillance of foreign
intelligence targets while providing appropriate protection
through court supervision to U.S. citizens and other persons
located inside the United States.
Debates concerning the extent of the President's
constitutional powers were heated in the mid-seventies, as
indeed they are today. We believe that the judgment of the
Congress at that time was that the FISA regime of court
supervision was focused on situations where Fourth Amendment
interests of persons in the United States were implicated.
Nothing--and I would repeat--nothing in the proposed
legislation changes this basic premise in the law.
Additionally, this proposed legislation does not change the
law or procedures governing how NSA or any other government
agency treats information concerning U.S. or United States
persons. For example, during the course of normal business
under current law, NSA will sometimes--and I repeat--sometimes
encounter information to, from or about a U.S. person; yet this
fact does not in itself cause FISA to apply to NSA's overseas
surveillance activities.
Instead, at all times, NSA applies procedures approved by
the Attorney General to minimize the acquisition, retention and
dissemination of information concerning U.S. persons. These
procedures have worked well for decades to ensure
constitutional reasonableness of NSA's surveillance activities.
They eliminate from intelligence reports incidentally-
acquired information concerning U.S. persons that does not
constitute foreign intelligence. The information is not
targeted, stored, retained or used by the intelligence
community.
Some observers may be concerned about reverse targeting.
This could occur when a target of electronic surveillance is
really a person inside the United States who is in
communication with the nominal foreign intelligence target
located overseas. In such cases, if the real target is in the
United States, the intelligence community would and should be
required to seek approval from the FISA Court in order
undertake such electronic surveillance.
It is vitally important, as the proposed legislation
reflects, that the government retain a means to secure the
assistance of communications providers. As Director of NSA, a
private-sector consultant both to government and to industry,
and as now the Director of National Intelligence, I understand
that it is in our interest and our job to provide the necessary
support. To do that, we frequently need the sustained
assistance of those outside the government to accomplish our
mission.
Presently, FISA establishes a mechanism for obtaining a
court order directing a communications carrier to assist the
government to exercise electronic surveillance that is subject
to court approval under FISA. However, the current FISA does
not provide a comparable mechanism with respect to authorized
communications intelligence activity. I'm differentiating
between electronic surveillance and communications
intelligence. The new legislative proposal would fill these
gaps by providing the government with means to obtain the aid
of a court to ensure private-sector cooperation with lawful
intelligence activities and ensure protection of the private
sector.
This is a critical provision that works in concert with the
proposed change to the definition of ``electronic
surveillance.'' It is crucial that the government retain the
ability to ensure private-sector cooperation with the
activities that are ``electronic surveillance'' under the
current FISA, but that would no longer be if the definition
were changed. It is equally critical that private entities that
are alleged to have assisted the intelligence community in
preventing future attacks on the United States be insulated
from liability for doing so. The draft FISA modernization
proposal contains a provision that would accomplish this
objective.
When discussing whether significant changes to FISA are
appropriate, it is useful to consider FISA's long history.
Indeed, the catalysts of FISA's enactment were abuses of
electronic surveillance that were brought to light in the mid-
seventies.
The revelations of the Church and Pike Committees resulted
in new rules for United States intelligence agencies, rules
meant to inhibit abuses while providing and protecting and
allowing our intelligence capabilities to protect the Nation.
I want to emphasize to this Committee and to the American
public that none of these changes, none of those being
proposed, are intended to nor will they have the effect of
disrupting the foundation of credibility and legitimacy of the
FISA court, as established in 1978. Indeed, we will continue to
conduct our foreign intelligence collection activities under
robust oversight that arose out of the 1978 Church-Pike
investigations and the enactment of the original FISA Act.
Following the adoption of FISA, a wide-ranging new
oversight structure was built into U.S. law. A series of laws
and executive office orders established oversight procedures
and substantive limitations on intelligence activities,
appropriately so.
After FISA, this Committee and its House counterpart were
created. Oversight mechanisms were established within the
Department of Justice and within each intelligence agency,
including a system of inspectors general. More recently,
additional protections have been implemented community-wide.
The Privacy and Civil Liberties Oversight Board was
established by the Intelligence Reform and Terrorism Prevention
Act of 2004. This board advises the President and other senior
executive branch officials to ensure that concerns with respect
to privacy and civil liberties are appropriately considered in
the implementation of all laws, regulations and Executive
branch policies related to efforts to protect the Nation
against terrorism.
Unlike in the 1970s, the intelligence community today
operates with detailed, constitutionally-based, substantive and
procedural limits under the watchful eyes of this Congress,
numerous institutions within the Executive branch and, through
FISA, the judiciary.
The Judicial Joint Inquiry Commission into Intelligence
Activities Before and After the Terrorist Attacks of September
11, 2001, recognized that there were systematic problems with
FISA implementation. For example, the Commission noted that
``there were gaps in NSA's coverage of foreign communications
and in FBI's coverage of domestic communications.''
As a result of these and other reviews of the FISA process,
the Department of Justice and the intelligence community have
continually sought ways to improve. The proposed changes to
FISA address the problems noted by that Commission.
Mr. Chairman, we understand that amending FISA is a major
proposal. We must get it right. This proposal is being made
thoughtfully and after extensive coordination for over a year.
But for this work to succeed, there must be bipartisan support
for bringing FISA into the 21st century.
Over the course of the last year, those working on this
proposal have appeared at hearings before Congress and have
consulted with congressional staff regarding provisions of this
bill. This consultation will continue. We look to the Congress
to partner in protecting the Nation. I ask for your support in
modernizing FISA so that we may continue to serve the Nation
for years to come.
As I stated before this Committee in my confirmation
hearing earlier this year, the first responsibility of
intelligence is to achieve understanding and to provide
warning. As the new head of the Nation's intelligence
community, it is not only my desire but my duty to encourage
changes to policies and procedures and, where needed,
legislation to improve our ability to provide warning of
terrorist activity and other threats to the Nation. I look
forward to answering the Committee's questions regarding this
important proposal to bring FISA into the 21st century.
Chairman Rockefeller. Thank you, Mr. Director. That was
forthright and informative, and we appreciate it.
Mr. Wainstein.
[The prepared statement of Mr. Wainstein follows:]
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STATEMENT OF KENNETH L. WAINSTEIN, ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Wainstein. Thank you. Chairman Rockefeller, Vice
Chairman Bond and members of the Committee, I want to thank you
for this opportunity to testify about our proposal to modernize
FISA. My colleagues and I have been working closely with this
Committee and your staff on this and several other FISA-related
issues. And I want to express my appreciation on the part of
all of us up here for your cooperative approach on these
complicated and very important matters.
While the proposal before you today contains a number of
important and needed improvements to the FISA process, I'd like
to focus my opening statement on laying out the merits of one
particular improvement that we're advocating, which is our
proposal to revise the definition of electronic surveillance in
the FISA statute. To do that I'll begin with a brief discussion
of Congress's intent when it drafted FISA almost 30 years ago.
I'll then address the sweeping changes in telecommunications
technology that have caused the statute to deviate from its
original purpose, so that it now covers many intelligence
activities that Congress intended not to cover.
I will discuss how this unintended consequence has impaired
our intelligence capabilities, and I'll urge you to modernize
FISA to bring it back in line with its original purpose.
In enacting FISA back in 1978, Congress established a
regime of judicial review and approval, and applied that regime
to the government's foreign intelligence surveillance
activities. But Congress applied that regime not as to all such
activities, but only as to those that most substantially
implicated the privacy interests of people in the United
States. In defining the scope of the statute, Congress was
sensitive to the importance of striking an appropriate balance
between the protection of privacy on one hand and the
collection of critical foreign intelligence information on the
other.
Congress struck that balance by designing a process that
focused primarily on intelligence collection activities within
the United States, where privacy interests are the most
pronounced, and not on intelligence collection activities
outside the United States, where cognizable privacy interests
are minimal or non-existent.
Congress gave effect to this purpose through its careful
definition of the statutory term ``electronic surveillance,''
which is the term that identifies those collection activities
that fall within the scope of the statute and, by implication,
those that fall outside of it. Congress established this
dichotomy by defining electronic surveillance by reference to
the manner of the communication under surveillance, by
distinguishing between wire communications, which, as the
Director said, were primarily the local and domestic traffic in
1978, and radio communications, which were primarily the
international traffic of that era.
Based on the communications reality of that time, that
dichotomy more or less accomplished the congressional purpose
of distinguishing between domestic communications which fell
within FISA, and communications targeted at persons overseas
which did not.
That reality has changed, however. It has changed with the
enormous changes in communications technology over the past 30
years. With the development of new communications over cellular
telephones, the Internet, and other technologies that Congress
did not anticipate and could not have anticipated back in 1978,
the foreign domestic dichotomy that Congress built into the
statute has broken down.
As a result of that, FISA now covers a wide range of
foreign activities that it did not cover back in 1978, and, as
a result of that, the Executive branch and the FISA Court are
now required to spend a substantial share of their resources
every year to apply for and process court orders for
surveillance activities against terror suspects and terrorist
associates who are located overseas--resources that would be
far better spent protecting the privacy interests of persons
here in the United States.
We believe this problem needs to be fixed, and we submit
that we can best fix it by restoring FISA to its original
purpose. And to do that, we propose redefining the term
``electronic surveillance'' in a technology-neutral manner.
Rather than focusing, as FISA does today, on how a
communication travels or where it is intercepted, we should
define FISA's scope by who is the subject of the surveillance,
which really is the critical issue for civil liberties
purposes. If the surveillance is directed at a person in the
United States, FISA generally should apply. If the surveillance
is directed at a person outside the United States, it should
not.
This would be a simple change, but it would be a critically
important one. It would refocus FISA's primary protections
right where they belong, which is on persons within the United
States.
It would realign FISA and our FISA Court practice with the
core purpose of the statute, which is the protection of the
privacy interests of Americans inside America. And it would
provide the men and women of the intelligence community with
the legal clarity and the operational agility that we need to
surveil potential terrorists who are overseas. Such a change
would be a very significant step forward both for our national
security and for our civil liberties.
I want to thank you, all the members of the Committee, for
your willingness to consider this legislative proposal as well
as the other proposals in the package that we submitted to
Congress, and I stand ready to answer any questions that you
might have.
Thank you.
Chairman Rockefeller. Thank you, sir, very much. We
appreciate that.
And as I understand it, Director McConnell, all the other
members of the panel are available also to answer questions.
Director McConnell. Yes, sir, that's correct.
Chairman Rockefeller. If I might start, the
Administration's proposed change to FISA would exempt any
international communications in and out of the United States
from requiring the review and approval of a FISA judge before
the surveillance took place unless a U.S. person was the
specific target of the surveillance. In other words, phone
calls between foreign targets and Americans located in the U.S.
could be intercepted without regard to whether a probable cause
standard was demonstrated to the court. This change in law, if
enacted, would increase the number of communications involving
U.S. persons being intercepted without a court warrant, and
that would be at unprecedented levels.
So my question, in a sense, is a little bit like what Mr.
Wainstein was talking about. If you're targeting a foreign
person--and I stay within bounds here, but if you're targeting
a foreign person, you're also at the same time picking up a
United States citizen. You're not just sort of picking up one
and not the other. So I'm not sure how that protects the United
States citizen, No. 1. I need to know that.
Secondly, what private safeguards are there in the
Administration's bill for the communications of Americans who
are not a target but whose communications would be otherwise
legally intercepted under a bill, which is sort of the same
question that I just asked. If the court does not play a role
in reviewing the appropriateness of surveillance that may
ensnare the international phone calls of Americans, who--under
the Administration's proposal--would oversee those exempt
communications to ensure that U.S. persons were not being
targeted?
Director McConnell. Sir, I have to----
Chairman Rockefeller. Who watches?
Director McConnell. Let me be careful in how I frame my
answer, because I will quickly get into sources and methods
that we would not desire those plotting against us, terrorists,
to understand or know about.
But in the lead to your statement, where you said a person
inside the United States calling out, in all cases that would
be subject to a FISA authorization. In the context of
intelligence, it would be a foreign power or an agent of
foreign power, calling out.
Now, if a known terrorist calls in and we're targeting the
known terrorist, and someone answers the telephone in the
United States, we have to deal with that information.
Chairman Rockefeller. And I understand that and don't
disagree with that, in fact support that. But my question is,
in the process of carrying that out, properly, because you have
reason to believe, so to speak, nevertheless the U.S. citizen
is being recorded and is a part of the record. And therefore is
that person's privacy targeted or not, even if that person is
not the purpose of the action?
Director McConnell. The key is ``target'' and would not be
a target of something we were attempting to do. And since FISA
was enacted in 1978, we've had this situation to deal with on a
regular basis.
Recall in my statement I said in those days most overseas
communications were wireless. Americans can be using that
overseas communications. So as a matter of due course, if
you're targeting something foreign, you could inadvertently
intercept an American.
The procedures that were established following FISA in 1978
are called minimize. There is an established rigorous process.
Chairman Rockefeller. I understand.
Director McConnell. And so that is how you would protect
it.
Let me turn it over to General Alexander, who is more
current than I am on specific detail.
General Alexander. Sir, if I might, if you look at where on
the network you intercept that call, if we were allowed to
intercept that overseas without a warrant, we'd pick up the
same call talking to a person in the U.S. In doing that, we
have rules upon which we have to abide to minimize the U.S.
person's data that's handed down to us from the Attorney
General. Everyone at NSA is trained on how to do that.
It would apply the same if that were done in the United
States under the changes that we have proposed. So we have
today a discrepancy on where we collect it.
And the second, as Director McConnell pointed out, the
minimization procedures would be standard throughout the world
on how we do it. If a U.S. person was intercepted, if it was
overseas or in the States, in both cases we'd minimize it.
Chairman Rockefeller. I will come back to that. My time is
up, and I call on the distinguished Vice Chairman.
Vice Chairman Bond. I thank the distinguished Chairman.
And I think that, Mr. Chairman, that answer is one which we
should fully develop in a closed session, because I think that
there's lots more to be said about that. And I think that
question will be a very interesting one to explore later.
I'd ask Admiral McConnell or General Alexander, without
getting in any classified measures, can you give us some
insight maybe, General, or a specific example how important
FISA is to defending ourselves against those who have vowed to
conduct terrorist attacks on us?
Director McConnell. Sir, let me start for a general
observation, and I want to compare when I left and when I came
back. And then I'll turn it to General Alexander for specifics.
The way you've just framed your question, when I left in
1996, retired, it was not significant. It was almost
insignificant. And today it is probably the most significant
ability we have to target and be successful in preventing
attacks.
General Alexander. Sir, as Director McConnell said, it is
the key to the war on terrorism. FISA is the key that helps us
get there.
Having said that, there's a lot more that we could and
should be doing to help protect and defend the Nation.
Director McConnell. Senator, I just might add--since I'm
coming back to speed and learning the issues and so on--what
I'm amazed with is, under the construct today, the way the
definitions have played out and applied because technology
changes, we're actually missing a significant portion of what
we should be gathering.
Vice Chairman Bond. I think probably we want to get into
that later, but I guess in summary you would say that this--you
said this is the most important tool, and the information that
you've gained there has allowed us on a number of occasions to
disrupt activities that would be very harmful abroad and here.
Is that a fair statement?
Director McConnell. Inside and outside the United States.
Vice Chairman Bond. All right. Mr. Wainstein, the proposal
includes a new definition for an agent of a foreign power who
possesses foreign intelligence information.
Can you give us an example of the type of person this
provision is intended to target, and how that meets the
particularity and reasonableness requirement of the Fourth
Amendment?
Mr. Wainstein. Thank you, Senator. Speaking within the
parameters of what we can talk about here in open session--and
I think that's a particular concern in this particular case,
where identifying any example with great particularity could
actually really tip off our adversaries--let me just sort of
keep it in general terms. This new definition of an agent of
foreign power would fill a gap in our coverage right now, which
is that there are situations where a person, a non-U.S.
person--this is only non-U.S. person--is here in the United
States. That person possesses significant foreign intelligence
information that we would want to get that could relate to the
intent of foreign powers who might want to do us harm. But
because we cannot connect that person to a particular foreign
power--under the current formulation of agent of foreign
power--we're not able to go to the FISA Court and get approval,
get an order allowing us to surveil that person.
So, you know, keep in mind, this is a FISA Court order.
We'd do this pursuant to the FISA Court's approval. This is
intended to provide that--fill that gap, similar to what
Congress did when it gave us the lone wolf provision a couple
years ago, allowing us to target a terrorist whom we could not
connect to a particular foreign power.
That's critically important, and I would ask if I could
defer to a closed session----
Vice Chairman Bond. We'll finish that up.
Another broader question. The recent inspector general's
report detailed too many errors in the FBI's accounting for and
issuing national security letters. As a result, some have
suggested that the national security letter authorities should
be changed or limited. What impact would changing the standard
from relevance to a higher standard have on FBI operations,
particularly in obtaining FISA surveillance and search
authorities?
Mr. Powell. I don't know what numbers would be cut out if
the standard were changed. I think it is important to note--and
this Committee has available to it the classified inspector
general report that goes into great detail of where NSLs have
been used in specific cases to obtain very critical information
to enable foreign intelligence investigations to go forward, so
I think if the standard were changed, that would lead to a real
impact on those investigations. But Mr. Wainstein is closer to
those and may want to comment.
Mr. Wainstein. I'll echo what Mr. Powell said. And I
believe that the remedy or the way of addressing the failings--
which were failings; it's been acknowledged as serious failings
by the Director of the FBI and the Attorney General--is not to
scale back on the authority but to make sure that that
authority is well-applied. And there are many things in process
right now to make sure that'll happen.
Vice Chairman Bond. Just follow the rules.
Thank you very much, Mr. Chairman.
Chairman Rockefeller. Thank you, Vice Chairman Bond.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Admiral, I very much appreciated our private conversations
and discussion about how we balance this effort in terms of
fighting terrorism ferociously and protecting privacy. And what
I want to examine with you is, what's really going to change on
the privacy side?
For example, in the debate about national security letters,
when Congress expanded the authority to issue these letters to
thousands of Americans, most of the very same terms were used
then that have been used this afternoon, efforts, for example,
such as minimizing the consequences of the law. But recently
the Director of the FBI has admitted that there was widespread
abuse of the national security letter authority, that there
were instances when agents claimed emergency powers despite the
lack of an actual emergency.
What is going to change now with this new effort, so that
we don't have Administration officials coming, as the Attorney
General recently did, to say, made a mistake--widespread abuse?
Director McConnell. First of all, the proposal is privacy-
neutral. It doesn't change anything. NSLs are not a part of
FISA.
Senator Wyden. I understand that. But what concerns me,
Admiral, is, we were told exactly the same thing with national
security letters. We asked the same questions. We were told
that there would be efforts to minimize the consequences. And I
want to know, what's going to be different now than when we
were told there wouldn't be abuses in the national security
letters?
Director McConnell. Sir, let me separate the two, if I
could. FISA grew out of abuses that occurred in the seventies,
as I mentioned in my opening statement. As a result of that,
the hearings that were held by this body with regard to how we
administer it going forward, the intelligence community was
given very strict guidance with regard to the law and the
implementing instructions and so on. There are instructions,
and I think if you check back in time, the signature on the--
the instruction that NSA lives by still has my name on it. It's
called USID-18.
Now what I'm setting up for you is a community whose job is
surveillance, whose very existence is for surveillance, and
that community was taught daily, regularly, signed an oath each
year, retrained. And we focused on it in a way to carry out
exactly the specifics of law. Let me contrast that with the
FBI. FBI has a new mission. It's a new focus. And think of it
in the previous time as arrest and convict criminals. Now it's
to protect against terrorism, so it's a new culture adapting to
a new set of authorities.
Now they were admitted by the Director of FBI and the
Attorney General. Mistakes were made and they're cleaning that
up. But it was done in a time when it was different in change,
and that culture is evolving to do it.
Senator Wyden. So you're saying that those who will handle
the new FISA statute are more expert, and we'll want to inquire
in secret session about that.
Now another section of the bill would grant immunity from
liability to any person who provided support to the warrantless
wiretapping program or similar activities. Would this immunity
apply even to those who knowingly broke the law?
Director McConnell. Of course not, Senator. It would never
apply to anybody who knowingly broke the law.
Senator Wyden. How is the bill going to distinguish between
intentional lawbreakers from unintentional lawbreakers? One of
the things that I've been trying to sort out--and we've
exchanged discussion about some of the classified materials--
is, how are you going to make these distinctions? I mean, if we
find out later that some government official did knowingly
break the law in order to support the warrantless wiretapping
program, could that then be used to grant them immunity? We
need some way to make these distinctions.
Director McConnell. Well, first of all, Senator, you're
using the phrase ``warrantless surveillance.'' Part of the
objective in this proposal is to put all of the surveillance
under appropriate authority, to include warrants where
appropriate. Now if someone has violated the law, and it's a
violation of the law, there could be no immunity.
Senator Wyden. In January of this year, Attorney General
Gonzales wrote to the Judiciary Committee and stated that any
electronic surveillance that was being committed as part of the
warrantless wiretapping program would ``now be conducted
subject to the approval of the Foreign Intelligence
Surveillance Court.''
Does this mean that the Federal Government is now obtaining
warrants before listening to Americans' phone calls?
Director McConnell. Sir, the way you're framing your
question is if the intent was to listen to Americans' phone
calls. That's totally incorrect.
Senator Wyden. Well, simply----
Director McConnell. The purpose is to listen to foreign
phone calls. Foreign. Foreign intelligence. That's the purpose
of the whole--think of the name of the Act--Foreign
Intelligence Surveillance Act--not domestic, not U.S.
Senator Wyden. But is the Federal Government getting
warrants?
Director McConnell. For?
Senator Wyden. Before it's listening to a call that
involves Americans?
Director McConnell. If there is a U.S. person, meaning
foreigner in the United States, a warrant is required, yes.
Senator Wyden. The government is now, then, completely
complying with the warrant requirement?
Director McConnell. That is correct.
Senator Wyden. OK.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Wyden.
And we now go to Senator Feingold.
Senator Feingold. Thank you very much, Mr. Chairman, for
holding this hearing. And I have a longer statement I'd like to
place in the record. And I'd ask the Chairman if I could do
that.
Chairman Rockefeller. Without objection.
[The prepared statement of Senator Feingold follows:]
Prepared Statement of Hon. Russell D. Feingold, a U.S. Senator from
Wisconsin
While I welcome this Committee's efforts to conduct oversight of
the FISA process, I am extremely disappointed in the draft legislation
the Administration has delivered to Congress. When the Administration
finally chose to put the NSA's illegal warrantless wiretapping program
under the Foreign Intelligence Surveillance Court process, I hoped we
might have an opportunity to work together to determine if the FISA
statute needs to be updated to address any legitimate concerns about
changes in technology.
Instead, the Administration has sent to Congress legislation that,
while billed as FISA ``modernization,'' is not only overbroad, but
contains provisions having nothing to do with modernization of FISA.
Those include full immunity to any entity that provided information to
the government in the past six years as part of any ``classified
communications intelligence activity'' which the Attorney General says
is related to counterterrorism, and mandatory transfer to the secret
FISA court of legal challenges to any ``classified communications
intelligence activity.''
The Administration also continues to fail to cooperate with
congressional oversight regarding past and current warrantless
wiretapping activities. We must get answers to basic questions about
these activities before we can seriously consider any significant
changes to the statute.
Senator Feingold. I thank the witnesses for testifying
today.
Can each of you assure the American people that there is
not--and this relates to the subject Senator Wyden was just
discussing--that there is not and will not be any more
surveillance in which the FISA process is side-stepped based on
arguments that the President has independent authority under
Article II or the authorization of the use of military force?
Director McConnell. Sir, the President's authority under
Article II is in the Constitution. So if the President chose to
exercise Article II authority, that would be the President's
call.
What we're attempting to do here with this legislation is
to put the process under appropriate law so that it's conducted
appropriately to do two things--protect privacy of Americans on
one hand, and conduct foreign surveillance on the other.
Senator Feingold. My understanding of your answer to
Senator Wyden's last question was that there is no such
activity going on at this point. In other words, whatever is
happening is being done within the context of the FISA statute.
Director McConnell. That's correct.
Senator Feingold. Are there any plans to do any
surveillance independent of the FISA statute relating to this
subject?
Director McConnell. None that we are formulating or
thinking about currently.
But I'd just highlight, Article II is Article II, so in a
different circumstance, I can't speak for the President what he
might decide.
Senator Feingold. Well, Mr. Director, Article II is Article
II, and that's all it is.
In the past you have spoken eloquently about the need for
openness with the American people about the laws that govern
intelligence activity. Just last summer, you spoke about what
you saw as the role of the United States stating that ``Because
of who we are and where we came from and how we live by law,''
it was necessary to regain ``the moral high ground.''
Can you understand why the American people might question
the value of new statutory authorities when you can't reassure
them that you consider current law to be binding? And here, of
course, you sound like you're disagreeing with my fundamental
assumption, which is that Article II does not allow an
independent program outside of the FISA statute, as long as the
FISA statute continues to read as it does now that it is the
exclusive authority for this kind of activity.
Director McConnell. Sir, I made those statements because I
believe those statements with regard to moral high ground, and
so on. I live by them.
And what I'm attempting to do today is to explain what it
is that is necessary for us to accomplish to be able to conduct
the appropriate surveillance to protect the American people,
consistent with the law.
Senator Feingold. Let me ask the other two gentlemen.
General Alexander, on this point with regard to Article II,
I've been told that there are no plans to take warrantless
wiretapping in this context, but I don't feel reassured that
that couldn't reemerge.
General Alexander. Well, I agree with the way Director
McConnell laid it out.
I would also point out two things, sir. The program is
completely auditable and transparent to you so that you and the
others--and Senator Rockefeller, I was remiss in not saying to
you and Senator Bond thank you for statements about NSA. They
are truly appreciated.
Sir, that program is auditable and transparent to you so
that you as the oversight can see what we're doing. We need
that transparency and we are collectively moving forward to
ensure you get that. And I think that's the right thing for the
country.
But we can't change the Constitution. We're doing right now
everything that Director McConnell said is exactly correct for
us to.
Senator Feingold. Well, here's the problem. If we're going
to pass this statute, whether it's a good idea or a bad idea,
it sounds like it won't be the only basis on which the
Administration thinks it can operate. So in other words, if
they don't like what we come up with, they can just go back to
Article II. That obviously troubles me.
Mr. Wainstein?
Mr. Wainstein. Well, Senator, as the other witnesses have
pointed out, the Article II authority exists independent of
this legislation and independent of the FISA statute. But to
answer your question, the surveillance that was conducted, as
the Attorney General announced, that was conducted pursuant to
the President's terrorist surveillance program, is now under
FISA Court order.
Senator Feingold. Another topic. It would be highly
irresponsible to legislate without an understanding of how the
FISA Court has interpreted the existing statute. Mr. Wainstein,
will the Department of Justice immediately provide the
Committee with all legal interpretations of the FISA statute by
the FISA Court along with the accompanying pleadings?
Mr. Wainstein. I'm sorry, Senator; all FISA Court
interpretations of the statute?
Senator Feingold. All legal interpretations of the FISA
statute by the FISA Court, along with the accompanying
pleadings.
Mr. Wainstein. In relation to all FISA Court orders ever--
--
Senator Feingold. In relation to relevant orders to this
statutory activity.
Mr. Wainstein. Well, I'll take that request back, Senator.
That's the first time I've heard that particular request, but
I'll take it back.
Senator Feingold. Well, I'm pleased to hear that, because I
don't see how the Congress can begin to amend the FISA statute
if it doesn't have a complete understanding of how the statute
has been interpreted and how it's being currently used. I don't
know how you legislate that way.
Mr. Wainstein. Well, I understand, but obviously, every
time they issue an order, that can be an interpretation of how
the FISA statute is--interpretation of the FISA statute. And as
you know from the numbers that we issue, we have a couple
thousand FISAs a year. So that would be quite a few documents.
Senator Feingold. This is an important matter. If that's
the number of items we need to look at, that's the number we
will look at.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Feingold.
Senator Nelson.
Senator Nelson. Mr. Chairman, most of my questions I'm
going to save for the closed session, but I would like to
ascertain the Administration's state of mind with regard to the
current law. In the case where there is a foreign national in a
foreign land calling into the United States, if you do not know
the recipient's nationality and therefore it is possible it is
a U.S. citizen, do you have to, in your interpretation of the
current law, go and get a FISA order?
Director McConnell. No, sir. If the target is in a foreign
country and our objective is to collect against the foreign
target, and they call into the United States, currently it
would not require a FISA. And let me double-check that. I may
be--I'm dated.
General Alexander. If it's collected in the United States,
it would require a FISA. If it were known that both ends are
foreign, known a priori, which is hard to do in this case, you
would not. If it was collected overseas, you would not.
Senator Nelson. Let's go back to, General, your second
answer.
General Alexander. If you know both ends--where the call is
going to go to before he makes the call, then you know that
both ends were foreign; if you knew that ahead of time, you
would not need a warrant.
Senator Nelson. If you knew that.
General Alexander. If you knew that.
Senator Nelson. If you did not know that the recipient of
the call in the U.S. is foreign, then you would have to have a
FISA order.
General Alexander. If you collected it in the United
States. If you collected it overseas, you would not.
Senator Nelson. Well, since in digital communications, if
these things, little packets of information are going all over
the globe, you might be collecting it outside the United
States, you might be collecting it inside the United States.
General Alexander. And Senator, that's our dilemma. In the
time in 1978 when it was passed, almost everything in the
United States was wire, and it was called electronic
surveillance. Everything external in the United States was in
the air, and it was called communications intelligence.
So what changed is now things in the United States are in
the air, and things outside are on wire. That's the----
Senator Nelson. I understand that. But I got two different
answers to the same question from you, Mr. Director, and from
you, General.
General Alexander. It depends on where the target is and
where you collect it. That's why you heard different answers.
Senator Nelson. So if you're collecting the information in
the United States----
General Alexander. It requires a FISA.
Senator Nelson. OK. Under the current law, the President is
allowed 72 hours in which he can go ahead and collect
information and, after the fact, go back and get the FISA
order.
Why was that suspended before in the collection of
information?
Director McConnell. Sir, I think that would best be
answered in closed session to give you exactly the correct
answer, and I think I can do that.
Senator Nelson. Well, then, you can acknowledge here that
it was in fact suspended.
Chairman Rockefeller. I would hope that that would be--we
would leave this where it is.
Senator Nelson. All right. I'll just stop there.
Chairman Rockefeller. Thank you, Senator Nelson.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
The Administration's proposal, Admiral, doesn't address the
authority that the President and Attorney General have claimed
in conducting electronic surveillance outside of FISA. While
the FISA Court issued a ruling that authorized the surveillance
ongoing under the so-called TSP, Terrorist Surveillance
Program, the White House has never acknowledged that it needs
court approval. In fact, the President, under this reasoning,
could restart the TSP tomorrow without court supervision if he
so desired.
Now, Senator Specter and I have introduced legislation
which very clearly establishes that FISA is the exclusive
authority for conducting intelligence in the United States.
Here's the question. Does the Administration still believe
that it has the inherent authority to conduct electronic
surveillance of the type done under the TSP without a warrant?
Director McConnell. Ma'am, the effort to modernize would
prevent an operational necessity to do it a different way. So
let me--I'm trying to choose my words carefully.
Senator Feinstein. Yes, but my question is very specific.
Does the President still believe he has the inherent authority
to wiretap outside of FISA? It's really a yes or no question.
Director McConnell. No, ma'am, it's not a yes or no
question. I'm sorry to differ with you. But if you're asking me
if the President is abrogating his Article II responsibilities,
the answer is no. What we're trying to frame is--there was an
operational necessary for TSP that existed in a critical period
in our history, and he chose to exercise that through his
Article II responsibility.
We're now on the other side of that crisis, and we're
attempting to put it consistent with law, so it's appropriately
managed and subjected to the appropriate oversight.
Senator Feinstein. Well, the way I read the bill, very
specifically, the President reserves his authority to operate
outside of FISA. That's how I read this bill. I think that's
the defining point of this bill.
Not only that, in Section 402, Section 102(a),
notwithstanding any other law, the President, acting through
the Attorney General, may authorize electronic surveillance
without a court order under this title, to acquire foreign
intelligence information for periods of up to 1 year. And then
it goes on to say if the Attorney General does certain things I
mean, clearly this carves out another space. That's the
question.
Director McConnell. That same situation existed in 1978,
when the original FISA law was passed. What we're attempting to
balance is emergency response to a threat to the Nation,
consistent with our values and our laws.
So the way this operated for 30 years, almost 30 years--we
operated day to day, and it was appropriately managed and
appropriate oversight. We had a crisis. The President responded
to the crisis, and we're now attempting to accommodate new
threats that we didn't understand in 2002, to be able to
respond to protect the Nation, to protect the Nation and its
citizens today, consistent with the appropriate oversight.
Does that mean the President would not exercise Article II
in a crisis? I don't think that's true. I think he would use
his Title II responsibilities under Article II.
Mr. Powell. And Senator, if I may add, Section 402 is not
meant to carve out in any way or speak to what the scope of the
President's power is. That is meant to speak to Title III and
criminal warrants and making clear what the certification
procedure was. I was a part of this working group for over a
year and a half, and the decision was specifically taken not to
speak to, one way or the other, the scope of the President's
constitutional power under Article II or to address that in
this proposal in any way, whether to expand it or contract it;
it was simply meant to be silent on what the President's
Article II powers are.
I would also note, in the idea that the President can
sidestep FISA or use Article II authority to simply place the
statute aside, that is not my understanding of the Department
of Justice position or the President's position. When you look
at the legal analysis that has been released by the Department
of Justice on the Terrorist Surveillance Program, that speaks
to a very limited set, speaking to al-Qa'ida and its
affiliates, in which we are placed in a state of armed conflict
with, and speaking to the authorization of the use of military
force passed by this Congress.
It does not speak to any kind of broad Article II authority
of the President to simply decide to set FISA aside in toto and
conduct electronic surveillance in a broad manner, unconnected
to things like the authorization for the use of military force
or the state of armed conflict that we entered into with al-
Qa'ida.
So I have not seen anything from the Department of Justice
or the President that would suggest that he would simply set
aside FISA or has the authority to simply conduct electronic
surveillance under Article II essentially unconnected to events
in the world.
Senator Feinstein. I can see that my time is up. But there
is nothing in this bill which reinforces the exclusive
authority of FISA? There is nothing in this bill that confines
the President to work within FISA?
Mr. Powell. This bill does nothing to change what FISA
currently says, which is electronic surveillance shall be--FISA
shall be the exclusive means for conducting electronic
surveillance unless otherwise authorized by statute. This bill
simply leaves that statement as is. It does not strike it, it
does not change it. It leaves it unchanged.
Senator Feinstein. My time is up, but this is a good issue
to pursue.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Feinstein.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
We'll talk more about this obviously in the closed session,
but I wanted to make a couple of points. And before I do,
Director, let me say that I'm going to be speaking rather
generally. As between you and I, I believe you to be an
honorable and trustworthy man. I think that you are here with a
view to be professional; that is your motivation. You are not
an ideologue or a partisan in your desire to help repair the
intelligence function of the United States, and I applaud you
for that.
But that said, you are still asking for substantial changes
in your authority. And as an aside, I think the new
technologies that have emerged do suggest some adjustment to
FISA. It may be over- or under-inclusive in certain areas. But
as we look through the lens of the past in terms of evaluating
how much we can trust you with institutionally--you know, these
are tough times.
As you said, the reason we have FISA in the first place is
because of past abuses. We've just found out about the litany
of national security letter abuses within the Department of
Justice. The Attorney General has thoroughly and utterly lost
my confidence, and at this stage any element of the FISA
legislation that depends on the Attorney General will need some
other backstop in order to have my confidence.
We are coming out of this Article II regime of the TSP
Program of warrantless wiretapping, and to this day, we have
never been provided the Presidential authorizations that
cleared that program to go or the Attorney General-Department
of Justice opinions that declared it to be lawful.
Now, if this program is truly concluded, the TSP program,
and if this is the new day in which everything is truly going
to be under FISA, I can't imagine for the life of me why those
documents that pertain to a past and closed program should not
be made available to the Committee and to us. And so, to me,
it's very concerning as we take these next steps for you to be
saying impliedly, ``Trust us, we need this authority, we'll use
it well,'' when we're coming off the record of the national
security letters; we're coming off terrible damage done to the
Department of Justice by this Attorney General; we're coming
off a continuing stonewall from the White House on documents
that I cannot for the life of me imagine merit confidentiality
at this stage.
And in the context of all of that you got some up-hill
sledding with me, and I want to work with you and I want to do
this, but it would be a big step in the right direction, in
terms of building the trust. Mr. Powell, I heard you just talk
about how important it was that to the extent we've been
disclosed, these opinions, that there was not transparency.
We've been talking a lot about transparency and all that kind
of stuff.
Where's the transparency as to the Presidential
authorizations for this closed program? Where is the
transparency as to the Attorney General opinions as to this
closed program? That's a pretty big ``We're not going to tell
you'' in this new atmosphere of trust we're trying to build.
If you have a response, sir, you'd like to make to that,
I'd be delighted to hear it. I know it was not framed as a
question.
Director McConnell. I do have a response. I think the
appropriate processes were created as a result of abuses of the
seventies. They were inappropriate. We've got oversight
Committees in both the Senate and the House. We're subjected to
the appropriate oversight, rigorous, as it should be. Laws were
passed to govern our activities. Those were inspected. We have
inspectors general, and the process has worked well.
I've made a recommendation based on just coming back to the
Administration with what we should do with regard to disclosing
additional information to this Committee, and that
recommendation is being considered as we speak. Certainly it's
easier for me to share that information with you and to have a
dialogue about what is said, and how it worked, and did it work
well, and should we change it.
But until I get working through the process, I don't have
an answer for you yet. But oversight is the appropriate way to
conduct our activities going forward, consistent with the law.
Senator Whitehouse. It's wonderful to hear you say that.
Mr. Wainstein. If I may, Senator--may I just respond to
that very briefly, Mr. Chairman?
Senator Whitehouse. Please.
Mr. Wainstein. Senator, to the extent that you've voiced
some concern about lack of confidence in the Department of
Justice and our role in FISA----
Senator Whitehouse. No. Just to be clear--lack of
confidence in the Attorney General.
Mr. Wainstein. Well, if I may just say that I'm the head of
a brand-new division that's focused on national security
matters, and a large part of our operation is making sure that
we play within the lines. We got a lot of people dedicated to
that, and I can tell you that our Deputy Attorney General and
our Attorney General are very conscientious about handling all
FISA matters; they get reported to regularly and handle their
responsibilities to sign off on FISA packages very carefully
and conscientiously.
And as far as the NSL matter goes, both the Director of the
FBI and the Attorney General were quite concerned about that
and have put in place a very strong set of measures to respond
to it. So I think if you look at their response to that
problem, which was a very serious problem, I would hope that
that would give you some more confidence.
Senator Whitehouse. Thanks.
Chairman Rockefeller. Thank you, Senator Whitehouse.
Senator Snowe.
Senator Snowe. Thank you, Mr. Chairman.
Director McConnell, obviously this is creating this
delicate balance. And I know in your testimony you indicated,
as we redefine the electronic surveillance and obviously amend
the Foreign Intelligence Surveillance Act, that to provide the
greater, you know, flexibility in terms of communication, that
we don't upset the delicate balance with respect to privacy
questions.
Last September, Kate Martin, the director of the Center for
National Security Studies, testified before the Crime,
Terrorism and Homeland Security Subcommittee of the House
Judiciary Committee and indicated that this bill would
radically amend the FISA Act and eliminate the basic framework
of the statute and create such large loopholes in the current
warrant requirement that judicial warrants for secret
surveillance of Americans' conversations and e-mails would be
the exception rather than the rule. How would you respond to
such a characterization? And could you also explain to the
Committee how exactly the framework has been preserved through
this renewed version of FISA?
Director McConnell. Well, first of all, I characterize the
statements you just read as uninformed, because the way it was
framed, it's as if we were targeting without any justification
communications of U.S. citizens, which is not the case, simply
not the case. If there is a reason to target any communications
and it's inside the United States, it would require a FISA
warrant in the current law and in the future law.
So the only thing we're doing with the bill, the proposal,
is just to update it to make it technology neutral. All things
regarding privacy stay the same.
Senator Snowe. And so in your estimation, then, there
aren't any provisions in this proposal that would create such
large loopholes.
Director McConnell. No.
Senator Snowe. No deviation, other than to make it
technology neutral.
Director McConnell. Zero. None.
Senator Snowe. I noted in your statement that you mentioned
additional protections besides coming before the respective
intelligence Committees and also to the leadership regarding
the Privacy and Civil Liberties Oversight Board that was
established by the legislation that created the department in
2004. Exactly what has that board accomplished to this date? As
I understand, it was just constituted last year in terms of all
the appointments being completed. So exactly what has this
board done in the interim that would suggest that they will
provide additional oversight?
Director McConnell. I've only met them recently and engaged
with them and we have a regular cycle for meeting and
discussing their activities, but it is oversight of the process
to look at activities, to see what's being conducted, and they
have a responsibility to report on it to the President and to
others of us. They work in my organization to carry out their
duties, which is to ensure that all of our activities are
consistent with civil liberties and the appropriate protection
of privacy.
Mr. Powell. They've just released their first report. It's
a detailed report, talks about the numbers of programs that
they have reviewed, including an in-depth review of what was
formerly the terrorist surveillance program before being placed
under FISA. I think you'll find that report informative about
what their findings were about the program. They've done some
in-depth reviews of various programs both inside and outside
the intelligence community, including they've attended NSA's
training that is provided to its operators, and that is a
public report.
Vito, you've interacted with them more. They've spent a lot
of time in different programs across this government, and that
report lays it out, and it's up on the Web.
Mr. Potenza. No, Senator, there's not much more to add to
that. They did come out to NSA. As Mr. Powell said, they sat in
on training, they reviewed specifically the Terrorist
Surveillance Program. They came out at least twice and spent a
considerable amount of time with us.
Senator Snowe. And when were they fully constituted as a
board?
Director McConnell. We have the head of the board here in
the audience somewhere. Let me--get him to--he was here. Still
with us?
Senator, I'll get back to you on it. I don't know the exact
time, but we'll provide it to you.
Senator Snowe. And certainly would they be giving I think
reasonable assurances to the American people that they will be
overseeing and protecting their privacy----
Director McConnell. That's their purpose.
Senator Snowe [continuing]. Consistent with the law?
Director McConnell. That is their purpose, and as just
mentioned, the first report is posted on the Web site. I didn't
know it was actually already on the Web site.
Senator Snowe. Thank you.
Chairman Rockefeller. Thank you, Senator Snowe.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
The FISA Court interpreted or issued some orders in
January. These are the orders which were the subject of some
discussion here today. Do we have copies of all those orders,
the January orders of the FISA Court?
Mr. Wainstein. Yes. And all members of the Committee I
think have been briefed in on them or----
Senator Levin. But do we have copies of the orders?
Mr. Wainstein. I believe you all have copies, yes.
Senator Levin. How many are there?
Mr. Wainstein. How many copies?
Senator Levin. How many orders?
Mr. Wainstein. I cannot get into how many orders there are.
Senator Levin. You can't get into the number?
Mr. Wainstein. Not in open session.
Senator Levin. Into the number of orders?
Mr. Wainstein. Yeah, not in open session, Senator.
Senator Levin. OK. Have those orders been followed?
Mr. Wainstein. Yes, sir.
Senator Levin. And have you been able to carry out the new
approach that those orders laid out so far?
Mr. Wainstein. I'd prefer to, if we could, defer any
questions about the operation of the orders to closed session.
Senator Levin. No, I'm not getting into the operations. I
want to know, have you been able to implement those orders?
Mr. Wainstein. We have followed the orders, yes, sir.
Senator Levin. Without any amendments to the statute?
Mr. Wainstein. There have been no amendments to the statute
since the orders were signed in January.
Senator Levin. And you've been able to follow the new
orders without our amending the statute?
Mr. Wainstein. We have----
General Alexander. Sir, could I----
Senator Levin. Just kind of briefly, I mean let me ask the
question a different way. Are the orders dependent upon our
amending the statute?
General Alexander. No, the current orders are not.
Senator Levin. OK.
General Alexander. Nor are the current orders sufficient
for us to do what you need us to do.
Senator Levin. I understand that. But in terms of the
orders being implementable, they do not depend upon our
amending the statute. Is that correct?
General Alexander. That's correct. The current state that
we're in does not require that.
Senator Levin. Good.
General Alexander. But I would also say, that's not
satisfactory to where you want us to be.
Director McConnell. Senator, what you need to capture is,
we were missing things that----
Senator Levin. I understand. I understand that we're not
deterring the implementation of the orders.
Now back in January, there was an article that says that
the Administration continues to maintain that it is free to
operate without court approval. There seemed to be some
question about that here today. Is that not the
Administration's position?
Director McConnell. That is not the Administration's
position that I understand, sir.
Senator Levin. OK.
Back in January, on the 17th, the Attorney General wrote to
Senators Leahy and Specter the following, that a judge of the
Foreign Intelligence Surveillance Court issued orders
authorizing the government to target for collection
international communications into or out of the United States,
where there is probable cause to believe that one of the
communicants is a member or agent of al-Qa'ida or an associated
terrorist organization. Has that remained the test for when you
want to be able to target a communication where the target is
in the United States, is that, there must be probable cause to
believe that one of the communicants is a member or agent of
al-Qa'ida or an associated terrorist organization?
Mr. Powell. Senator, I think it would be best if we get
into that in closed session.
Senator Levin. Well, is there any change in that? This to
me is the key issue, the probable cause issue----
Mr. Powell. Senator, you have copies of those orders that
lay out very specifically what those tests are. What the
Attorney General's letter did was speak to what the President
had laid out in his December 17, 2005 radio address as the
Terrorist Surveillance Program.
Senator Levin. I understand.
Mr. Powell. And that is what that letter is addressed to,
Senator.
Senator Levin. My question is, is there any change, that
that is what you are limiting yourselves to, situations where,
if the target is in the--if the eavesdropping takes place in
the United States, that there must be probable cause to believe
that one of the communicants is a member or agent of al-Qa'ida
or an associated terrorist organization? Is there any change
from that? This is what the Attorney General wrote us. Is there
any change from that since January 17?
General Alexander. Sir, we can't answer that in open
session.
Senator Levin. Well, he wrote it in open session. It's an
open letter.
Vice Chairman Bond. Mr. Chairman, I would suggest to the
Chairman that this question we can explore fully in the closed
session.
Senator Levin. Well----
Chairman Rockefeller. I would leave that----
Senator Levin. This is a letter which was written publicly.
If there's a change to this, we ought to know about that
publicly.
Chairman Rockefeller. If that represents a program, say so.
Director McConnell. It presents a problem for us, sir.
Chairman Rockefeller. It is not----
Director McConnell. It presents a problem for us. The way
it was framed and the way it was written at the time is
absolutely correct. The way the Senator's framing his question,
it pushes it over the edge for how we can respond to it,
because there's been some additional information.
Senator Levin. Could the Attorney General write that letter
today?
Director McConnell. We can discuss it in closed session,
sir.
Mr. Powell. Senator, the point of the Attorney General's
letter, as I understood it, was to address those things that
the President had discussed that were being done under the
Terrorist Surveillance Program. And what his letter addresses
is to say that those things that the President had discussed
under the program were now being done under orders of the FISA
court. And today, as we sit here, the Attorney General's letter
remains the same--that those things that the President had
discussed continue to be done under the orders of the FISA
court. So to that extent, there's no change to the Attorney
General's letter.
General Alexander. Sir, if I could, to just clarify this
one step further, there are other things that the FISA court
authorizes day in and day out that may be included in that
order, that go beyond what the Attorney General has written
there. Every day we have new FISA applications submitted.
What you were tying this to, Senator, was al-Qa'ida.
Senator Levin. Mr. Chairman, I think, if the Chair and Vice
Chair are willing, I think we ought to ask the Attorney General
then if this letter still stands.
In terms of the test which is being applied for these
targeted communications, it's a very critical issue. The
President of the United States made a representation to the
people of the United States as to what these intercepts were
limited to. And the question is, is that still true? And it's a
very simple, direct question, and we ought to ask the Attorney
General, since he wrote, made a representation in public; the
President has made a representation in public. If that's no
longer true, we ought to know it. If it is still true, we ought
to know it. So I would ask the Chairman and Vice----
Chairman Rockefeller. The Senator is correct, and that will
happen and that will be discussed in the closed session.
Senator Levin. Thank you. My time is up. Thank you.
Chairman Rockefeller. No, thank you, Senator Levin. After
Vice Chairman Bond has asked his question, I'm yielding my time
to the Senator from Florida, and I guess then to the Senator
from Oregon, and then eventually I'll get to ask a question,
too.
Senator Bond.
Vice Chairman Bond. Thank you, Mr. Chairman. I think maybe
to clear up some of the confusion and some of the questions
couldn't be answered, it's my understanding you're before us
today asking for FISA updates to enable NSA to obtain under
that statute vital intelligence that NSA is currently missing.
And secondly, when we talk about Article II and the power
of the President under Article II, Presidents from George
Washington to George Bush have intercepted communications to
determine the plans and intentions of the enemy under the
foreign intelligence surveillance authority in that. And prior
to the TSP, as I understand it, the most recent example was
when the Clinton Administration used Article II to authorize a
warrantless physical search in the Aldrich Ames espionage
investigation.
The Supreme Court in the Keith case in 1972 said that the
warrant requirement of the Fourth Amendment applies to domestic
security surveillance, but it specifically refused to address
whether the rule applied with respect to activities of foreign
powers or their agents. And then in the Truong case in 1980,
the Fourth Circuit noted the constitutional responsibility of
the President for the conduct of the foreign policy of the
United States in times of war and peace in the context of
warrantless electronic surveillance. And it did say that it
limited the President's power with a primary purpose test and
the requirement that the search be a foreign power, its agent
or collaborator.
Finally, despite Congress' attempts to make FISA the
exclusive means of conducting electronic surveillance for
national security purposes, my recollection from law school is
that the Constitution is the supreme law of the land. It is a
law.
Congress cannot change that law in the Constitution without
amending the Constitution. And the Foreign Intelligence Court
of Review, in In re Sealed Case, in 2002, Judge Silverman
wrote, ``We take for granted that the President does have the
authority''--that's the authority to issue warrantless
surveillance orders--``and assuming that is so, FISA could not
encroach on the President's constitutional power. We should
remember that Congress has absolutely no power or authority or
means of intercepting communications of foreign enemies. So
even at his lowest ebb, the President still exercises
sufficient significant constitutional authority to engage in
warrantless surveillance of our enemies''.
And I know that there are two admitted lawyers on the
panel. Are you a lawyer also? Three. Is that right? Is that
correct? Mr. Powell, Mr. Wainstein, Mr. Potenza. Thank you.
Chairman Rockefeller. Just for the record, they nodded
``yes.''
[Laughter.]
Vice Chairman Bond. But we didn't want to disclose all the
lawyers on there. I have that problem myself.
I wanted to ask, since we're asking kind of unrelated
questions, Mr. Wainstein, the 9/11 Commission and this
Committee tried to get a look at all the intelligence and the
policy decisions leading up to 9/11. And I'm beginning to hear
that we did not and maybe the 9/11 Commission did not get all
the information.
For example, in the case of Mr. Sandy Berger, he admitted
removing five copies of the same classified document from the
National Archives; destroyed three copies. We know that he was
there on two other occasions; we don't know whether he removed
other original documents. He removed classified notes without
authorization. What we don't know is what was actually in the
PDBs that were stuffed in his BVDs. In his plea agreement, he
agreed to take a polygraph at the request of the government,
and for some reason, the Department of Justice has not gotten
around to polygraphing him to ascertain what was in the
documents and why he removed them.
Are you going to try to find out that information, and when
can you let us know, Mr. Wainstein?
Mr. Wainstein. Senator Bond, I know that that is an area of
inquiry from other Members of Congress, and there's been a good
bit of traffic back and forth on that particular issue. I have
to admit that right now I'm not up on exactly where that is. So
if it's OK with you, I will submit a response in writing.
Vice Chairman Bond. We'd like to find out.
Thank you, Mr. Chairman.
Mr. Wainstein. Thank you, sir.
Chairman Rockefeller. Thank you, Mr. Vice Chairman.
And now Senator Nelson, to be followed by Senator Wyden, to
be followed by myself.
Senator Nelson. Thank you, Mr. Chairman.
I want to go back to the line of questioning before. You
already said that under current law, if there is someone who is
deemed to be of interest outside of the United States that's
calling in, even though we may not know that the person in the
United States is a U.S. citizen, that under current law that
would require a FISA order?
Director McConnell. It depends on where the intercept takes
place.
Senator Nelson. OK. And so if the intercept takes place in
the United States----
Director McConnell. It requires an order.
Senator Nelson. OK. Now----
Mr. Potenza. Senator, if I may, I would just add to that.
If it's on a wire in the United States, it requires a FISA
order.
Senator Nelson. So if it's a cell phone, it doesn't
require--if it----
Mr. Potenza. A separate section of FISA would cover that.
But the particular situation you were talking about is the wire
section.
Director McConnell. In 1978, they separated it between
``wire'' and ``wireless.'' And so if a wireless call was made
from overseas into the United States via satellite, it would be
available for collection.
Senator Nelson. Right. Is it the case under current law
where all parties to a communication are reasonably believed to
be in the United States, that the government would need to go
to a FISA court to obtain an order authorizing the collection?
Director McConnell. Yes, sir, that's correct.
Senator Nelson. Under your new proposal, is that the case?
Director McConnell. That's correct. Yes, sir, it is
correct.
Senator Nelson. The proposed definition of electronic
surveillance depends on whether a person is reasonably believed
to be in the United States. What kind, Mr. Wainstein, of
guidance would the Justice Department give when someone is
reasonably believed to be in the United States?
Mr. Wainstein. Sir, I can't give you specific indicia that
we would use. We might be able to elaborate more in closed
session as to what NSA, what kind of indicia NSA actually uses
right now. But it's exactly that. In telecommunications, it's
not always a certainty these days exactly where a communicant
is. So we have to use the information we have to make a
reasonable determination as to where that person is.
Director McConnell. But if we know, if the collector knows
you're in the United States, it requires FISA.
Senator Nelson. OK. Now, if you know that two people are in
the United States, and you are collecting that information in
the United States, normally that would require a FISA order.
Director McConnell. Yes, sir.
Senator Nelson. Does that include if you know one of those
people on the communication in the United States is a member of
al-Qa'ida?
Director McConnell. Yes, sir.
Senator Nelson. It still does. OK.
Mr. Chairman, I want to turn back to the question that I
asked before. And you stop me, as you did before, if you don't
want me to proceed. But it was openly discussed in all of the
public media that the 72-hour rule under current law was not
obeyed with regard to the intercepts that have occurred.
And my question was--well, I first asked why, but then I
asked did it, in the Administration. I would like an
Administration witness to answer if what we read in the New
York Times and the Washington Post and the L.A. Times and the
Miami Herald about the 72-hour requirement not being complied
with, is that true, that it wasn't complied with, the law, the
current law?
Mr. Powell. Senator, when you're referring to the 72-hour
rule, I think you're referring to the emergency authorization
provisions by which the Attorney General, if all of the
statutory requirements are met to the Attorney General's
satisfaction, he may authorize surveillance to begin and then
has 72 hours after that to go to the FISA Court. If that is
what you're referring to, Senator----
Senator Nelson. Well, that's what I stated in my previous
question when the Chairman stopped me.
Mr. Powell. Senator, what the President discussed in his
radio address, I believe, of December 17, talking about one-end
communications involving al-Qa'ida or an affiliate, those were
done under the President's authorization and the President's
authority, were not done pursuant to FISA or Attorney General
emergency authorizations by which after 72 hours you would go
to to the FISA Court. To that extent the emergency
authorization provision of FISA was not a part of that
terrorist surveillance program.
Senator Nelson. Well, here's the trick, and I'll conclude.
The trick is we want to go after the bad guys, we want to get
the information that we need, but we're a nation of laws and we
want to prevent the buildup of a dictator who takes the law
into his own hands, saying, ``I don't like that.''
So now we have to find the balance. And that's what we need
to craft, because there is legitimate disagreement of opinion
on the interpretation that the President broke the law the last
time. Senator Bond would say, no, he didn't, because he had an
Article II constitutional right to do that.
Well, this is what the American people are scared about,
that their civil rights and civil liberties are going to be
invaded upon because somebody determines, outside of what the
law says in black and white, that they know better than what it
says. And so we've got to craft a new law that will clearly
make that understandable.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Nelson. Senator
Wyden, I'll get you in just a second.
The Chairman would say very strongly here at this point
that this in fact a creative process, and that those who watch
or listen or whatever--it's OK that we do this. What it does
say is that what we were discussing is incredibly important for
the national security, as is what we're talking about,
incredibly important for individual liberties. It is wholly
understandable, and it is wholly predictable, in this Senator's
view, that there would be areas where we would come to kind of
a DMZ zone, unhostile, and where one side or another would get
nervous.
It is the judgment of this Chairman that in a situation
like that, when you're dealing with people who run the
intelligence, that you respect their worry, because you do not
have to worry about the fact that the information will come
out. Because we do have a closed hearing, and all members will
be at that closed hearing. And they will hear the answers to
the questions that have been asked.
So that--I don't have a hesitation if I feel, and the Vice
Chairman on his part has that same right, if there's a feeling
that we're getting too close to the line, let's not worry too
much about that. We have not crossed that line. The Senator
from Florida extended my cutoff, as he said, a little bit
further. There was not particular objection on your part, and
so the situation has been resolved.
But I just wanted to make that clear. When we're in open
session, this is the only Committee on this side of the Capitol
Building which runs into conflicts of this sort, potential
conflicts of this sort. And we darn well better be very, very
careful in the way that we resolve them and err, from my point
of view, with a the sense of caution.
Because if we're going to craft something--and Senator Bond
and I have been talking about this a little bit during the
hearing--if we're going to craft something which can get
bipartisan support, which is what we need, we need to have not
only the trust but also the integrity of discourse.
Words can do great damage. They can do great good. Silence
can do great damage. Silence can do great good.
So I consider all of this useful, and I now turn to Senator
Wyden.
Senator Wyden. Thank you, Mr. Chairman. I happen to agree
that both you and Senator Bond have made valid points on this.
And what concerns me is, too much of this is still simply too
murky.
And I think, with your leave, Admiral McConnell, let me
just kind of wade through a couple of the other sections that
still concern me.
Section 409 on physical searches creates a new reason to
hold Americans' personal information obtained in a physical
search, even when a warrant is denied. And I want to kind of
walk you through kind of existing law and then the change and
get your reaction.
Current law allows the Attorney General to authorize a
secret emergency search of an American's home, provided that
the government gets a warrant within three days of the search.
If the warrant is denied, then information gathered in the
search may not be used unless it indicates a threat of death or
harm to any person. I think virtually nobody would consider
that out of bounds. That's a sensible standard in current law.
But the bill would permit the government to retain
information gathered in the secret search of an American's
home, even if the warrant is later denied, if the government
believes there is something called significant foreign
intelligence information. How is that definition arrived at?
What is the process for that additional rationale for keeping
information on hand after a warrant is denied?
Director McConnell. Sir, I'll turn to the lawyers for a
more official definition of that, but the way I would interpret
it as an operator is, it would be threat information, something
of a planning nature that had intelligence value, that would
allow us to prevent some horrendous act. So it would be
something in the context of threat.
Senator Wyden. What amounts to an imminent act.
Director McConnell. Imminent or a plan for, you know
blowing a bridge or something of that nature.
Senator Wyden. I was searching for the word ``imminent,''
and I appreciate it.
The lawyers, I'll move on, unless you all want to add to
it. But I was searching for the word ``imminent `` Do you all
want to that? Because I want to ask one other question.
Mr. Powell. Well, I just want to make it clear, Senator,
that you did represent the proposal correctly, that the words
``significant foreign intelligence information'' would go
broader, to just something that is imminent or a terrorist
event. So the proposal is broader there, to allow the
government to retain and act upon valuable foreign intelligence
information that's collected unintentionally, rather than being
required to destroy it if it doesn't fall in the current
exception. But you represented the proposal correctly, Senator.
Senator Wyden. All right. Let me ask a question now about
408, and this goes back to the point that I asked you, Admiral,
earlier about that a section of the bill grants immunity from
liability to any person who provided support to the warrantless
wiretapping program or similar activities. I asked whether the
immunity would apply even to persons who knowingly broke the
law, and I asked what is in Section 408 that distinguishes
intentional lawbreakers from unintentional ones. And I still
can't find it after we've gone back and reviewed it.
Can you and the lawyers point to something there--it's at
page 35, Section 408--that allows me to figure out how we make
that distinction?
Mr. Powell. Right, Senator. 408, the liability defense,
what it would do is say that the Attorney General or a designee
of the Attorney General would have to certify that the activity
would have been intended to protect the United States from a
terrorist attack.
The Attorney General would actually have to enter a
certification for anybody to be entitled to this defense. I
don't believe the Attorney General or the designee would issue
such a certification for somebody who was acting in the manner
that you've described.
Senator Wyden. So that essentially is how you would define
the last seven or eight lines of page 35, is that the Attorney
General would have to make that certification.
Mr. Powell. That's correct, Senator. It's not a defense
that somebody could just put forth without having the Attorney
General involved in a certification process.
Senator Wyden. Gentlemen, I think you've gotten the sense
from the Committee that one of the reasons that the bar is high
now is that the American people have been told repeatedly--both
with respect to the national security letters that I touched on
earlier, the PATRIOT Act and other instances--we've been told
in language similar to that used today that steps were being
taken to assure that we're striking the right balance between
fighting terrorism and protecting people's privacy. And that is
why we're asking these questions. That's why we're going to
spend time wading through this text.
Admiral, you've heard me say both publicly and privately,
you've been reaching out to many of us on the Committee to go
through these specific sections. You've got a lot of reaching
out to do, based on what I've heard this afternoon and, I
think, what I've heard colleagues say today.
But we're interested in working with you on a bipartisan
basis, and I look forward to it.
Thank you, Mr. Chairman.
Director McConnell. Thank you, Senator.
Chairman Rockefeller. Thank you, Senator Wyden.
I'll conclude with three questions, unless the Vice
Chairman has further questions.
This is listed as all witnesses. I'd like a little
minimization there. A criticism of the Administration's bill is
that while the reasons given for the bill are focused on the
need to respond to the threat of international terrorism, the
Administration's bill would authorize warrantless surveillance
of all international calls for any foreign intelligence
purpose.
How would you respond to a suggestion that a more narrow
approach be considered that would specifically address
communications associated with terrorism, as opposed to the
blanket foreign intelligence purposes in the Administration's
proposal?
Director McConnell. Sir, if it's inside the United States,
regardless, it would require a warrant, as it does today. So if
the foreign intelligence originated in a foreign location and
it has to do with intelligence of interest to the United
States, such as weapons of mass destruction shipment or
something to do with a nation state not necessarily associated
with terrorism, that would still be a legitimate foreign
intelligence collection target. So something inside the United
States requires a warrant. External to the United States, what
we're arguing is it should not require a warrant, as we have
done surveillance for 50 years.
Chairman Rockefeller. Thank you.
Mr. Wainstein, the Administration's bill would expand the
power of the Attorney General to order the assistance of
private parties without first obtaining a judicial FISA warrant
that is based on the probable cause requirements in the present
law. A limited form of judicial review would be available under
the Administration's bill after those orders are issued.
Why is this change necessary? Has the FISA Court's review
of requested warrants been a problem in the past?
Mr. Wainstein. Mr. Chairman, I believe what you're
referring to is Section 102, large A. And what that does is it
says that for those communication interceptions that no longer
fall under FISA, with the redefinition of electronic
surveillance, that there's a mechanism in place for the
Attorney General to get a directive that directs a
communications company to assist in that surveillance, because
there's no longer a FISA Court order that can be served on that
company. So this way the Attorney General has a mechanism to
get a directive to ask a company to provide the assistance
that's necessary.
If that company disagrees with that and wants to challenge
that order, this proposal also sets up a mechanism by which
that company can challenge that order to the FISA Court. So
there is judicial review of any compulsion of a communications
provider to provide communications assistance to the
government.
Chairman Rockefeller. And there are precedents in American
law for such?
Mr. Wainstein. Yes, in a variety of different ways, both on
the criminal side and on the national security side, yes, sir.
Chairman Rockefeller. OK. My final question is also to you,
sir. The Administration argues that if these FISA amendments
were enacted, there could be greater attention paid to the
privacy protections of persons in the United States. Among
these amendments, however, are provisions that would presumably
limit the amount of information being provided to the Foreign
Intelligence Surveillance Court.
The proposed amendments, for example--and here we get back
to what has already been discussed--provide for the use of
``summary description,'' rather than ``detailed description''
in FISA applications when it comes to ``the type of
communications or activities to be subjected to surveillance.''
Is the Department of Justice seeking to limit the
information a judge of the FISA Court has available upon which
to base a decision and issue and order for electronic
surveillance? And if that be the case, why?
Mr. Wainstein. Mr. Chairman, I appreciate the question. And
those specific proposed revisions essentially say that instead
of providing very detailed explication of those points that you
just cited, the government can provide summary information. And
that's a recognition of the fact that right now the typical
FISA Court package that goes to the court is, you know, 50-60
pages, something in that range. It's a huge document. And a lot
of that information is or more or less irrelevant to the
ultimate determination of probable cause. It needs to be there
in summary fashion, but not in detailed fashion.
So that's all those streamlining provisions are doing.
They're not in any way denying the FISA court the critical
information they need to make the findings that are required
under the statute.
And in terms of our statements that this overall bill will
protect the privacy rights of Americans, frankly, it's a very
practical point, which is that right now we spend a lot of
time--in the Department of Justice, NSA and the FISA Court--
focusing on FISA packages that really don't relate to the core
privacy interests of Americans. They relate to these FISA
intercepts, which really weren't intended to be covered by
FISA. If those are taken out of FISA so that we're focusing
back on privacy interests of Americans, then all that
personnel, all that attention will be focused where it should
be, on Americans and on Fourth Amendment interests here in the
United States.
Mr. Powell. And, Senator, if I could add--because there's a
lot of attention to Department of Justice and attorney
resources--a critical piece on this is that these applications
in many cases resemble finished intelligence products. The
burden is on the analysts and the operators, so it's not a
matter of more resources for the Department of Justice, that we
could bring lawyers on board and bring them in, and they would
somehow magically understand the cases and be able to produce
what are essentially finished intelligence products, in some
cases, for the court; we think that where we've gotten to in
the place with the statute has gone beyond what anybody ever
intended.
The burden of that falls on the analysts and operators of
the intelligence community, not the lawyers, Senator. We ask
the questions and we write them down and we put the packages
together, but it's a huge burden to put this type of product
together with people who are very limited, whose time is very
limited, and they need to spend time sitting with me and Ken's
staff to produce these products. So it's not just a question of
Department of Justice resources. I think that would be a
solvable problem. The issue really becomes kind of the limited
analysts and operators that are working these cases in real
time.
Chairman Rockefeller. If what you suggest is--and I'm
actually growing a little weary of this term, the ``burden''--
the ``burden''--there are a lot of burdens in government,
there's a lot of paperwork in government. Go work for CMS
someday and you'll get a real lesson in burden. Is the burden
that you're referring to too much paperwork, don't have time,
can't respond in time? Is that what the courts are saying or is
that what you are saying?
Mr. Powell. Yeah, I think the issue is not the--it's the
issue of--it's not the burden to focus on what the balance was
struck in 1978, to focus on U.S. persons in the United States.
What we have done is taken a framework that was designed to
prevent domestic abuses that threatened our democratic
institutions. That was meant to protect against that and the
abuses that happened--and we can talk about those--and we've
just simply, because of the way technology has developed,
transferred that framework to people who were never intended to
be a part of that, and where that danger, frankly, does not
exist.
So we've taken a framework designed to prevent domestic
abuses, and, simply because of technological changes,
transferred this to foreign entities, and I don't think I have
not heard any reasonable argument that those activities
directed at foreign entities not in the United States somehow
present the same threats that we were concerned about
domestically. So we've shifted the entire framework simply
because of technology. We've shifted a good portion of that
framework to a situation that is completely different, and we
put back in place that original balance that we believe was
struck in 1978, Senator.
Chairman Rockefeller. Well, it occurs to me--and these are
my closing remarks--is that changing technology is a part of
every aspect of all of our lives.
And so we all live with it every day in many ways; some
catch up, some don't. You have to be ahead of the curve, and
you have to be able to respond very rapidly.
I think it's going to be very important--and Senator Bond
and I have discussed this during this hearing and before--that
we come out with a solution that works on this. I think it
would be very damaging if we did not. I think it would be very
damaging if we came out with a solution which went along purely
partisan lines and was based upon arguments from one end to
another.
Having said that, I'm not sure it's going to be easy, and
that's why the intelligence, the orders that we have not
received chafe at the Vice Chairman and myself. When you're not
completed, when you're not given complete information on
something which is so fundamental and where the line between
privacy and security has to be so exact, then there can be a
real sense of frustration, if only because you fear you're not
acting on complete information. It has nothing to do with our
trusting of all of you. It has to do with the process which is
meant to inform the intelligence Committees in the Senate and
the House of what the legal underpinning is.
So I would repeat my request, particularly to the Director
of National Intelligence, that this is a matter not just of
letters that have been written and requests which have been
made, but a matter of the really important fundamental ability
of us to work together as a Committee to produce a good
product. I want a product that works for America. Senator Bond
wants a product that works for America. There are going to have
to be some adjustments made, as there inevitably will, or else
we just go on in some kind of a food fight which is no good for
anybody at all.
So I would ask that cooperation, and I would renew my
request for the information that I asked for in my opening
statement.
Vice Chairman Bond. Mr. Chairman, I join with you in asking
for the legal justifications. Now I recognize in some attorney-
client relationships the opinions reflect the negative side
rather than the positive side, and I don't know what would be
in that information.
But suffice it to say that we need specifically, succinctly
the legal justifications and a copy of the kind of orders that
went out, so we can see what went on.
On the other hand, when we're on another issue, when we're
talking about FISA applications, Mr. Powell, how many FISA
applications are made a year?
Mr. Powell. I think Mr. Wainstein will have the numbers. I
have them in my bag, Senator. They're in the report that is
publicly filed each year.
Mr. Wainstein. I think the most recent number was 2,183 for
2006.
Vice Chairman Bond. 2,183, and they average about 50 pages?
Mr. Wainstein. About that, yes, sir.
Vice Chairman Bond. So 50 pages times that. My math is a
little slow. But each year that would be over roughly 110,000
pages. And each year we go back would be another 100,000. I
think we ought to--there was a question about having all FISA
orders.
I think we need to come to a reasonable agreement on
maybe--I don't know where we would put 100,000 pages of orders.
And I think that we need to look at that and find a way to
issue a request that can be responded to and that we can
handle. But I do believe very strongly that clear, succinct
legal justification should be shared with us when we're in the
closed hearings.
And we got into the fringe areas of a lot of things that
the Chairman and I know why it could not be answered. And while
it may appear that there was a lack of forthcoming by our
witnesses, we know full well what it is that prevents your
answering it. And we will look forward to getting all those
answers.
And I think it will become clear to all of us, the Chairman
and the Vice Chairman and the Members, when you can lay out the
specific reasons that we danced around today as to why and what
and where FISA needs to be changed. And I thank you, Mr.
Chairman, and I thank our witnesses.
Chairman Rockefeller. And the hearing is adjourned.
[Whereupon, at 4:50 p.m., the Committee adjourned.]