[Senate Hearing 113-334]
[From the U.S. Government Publishing Office]
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
88-671 PDF
2014
S. Hrg. 113-334
STRENGTHENING PRIVACY RIGHTS AND NATIONAL SECURITY: OVERSIGHT OF FISA
SURVEILLANCE PROGRAMS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 31, 2013
__________
Serial No. J-113-25
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Staff Director
Kolan Davis, Republican Chief Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 47
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
WITNESSES
Witness List..................................................... 45
Cole, Hon. James M., Deputy Attorney General, U.S. Department of
Justice, Washington, DC [with adjunct testimony from John C.
Inglis, Deputy Director, National Security Agency, Washington,
DC; Robert S. Litt, General Counsel, Office of the Director of
National Intelligence, Washington, DC; and Sean M. Joyce,
Deputy Director, Federal Bureau of Investigation, Washington,
DC]............................................................ 5
prepared statement........................................... 49
Inglis, John C., Deputy Director, National Security Agency,
Washington, DC, prepared statement............................. 54
Carr, Hon. James G., Senior Judge, U.S. District Court for the
Northern District of Ohio, Toledo, Ohio........................ 34
prepared statement........................................... 60
Jaffer, Jameel, Deputy Legal Director, American Civil Liberties
Union Foundation, New York, New York........................... 36
prepared statement........................................... 62
Baker, Stewart A., Partner, Steptoe & Johnson LLP, Washington, DC 37
prepared statement........................................... 85
QUESTIONS
Questions submitted by Senator Leahy for James M. Cole........... 101
Questions submitted by Senator Leahy for John C. Inglis.......... 102
Questions submitted by Senator Leahy for Jameel Jaffer........... 104
Questions submitted by Senator Grassley for James M. Cole........ 105
Questions submitted by Senator Grassley for John C. Inglis....... 107
Questions submitted by Senator Grassley for Robert S. Litt....... 109
Questions submitted by Senator Grassley for Sean M. Joyce........ 111
Questions submitted by Senator Grassley for James G. Carr........ 114
Questions submitted by Senator Grassley for Jameel Jaffer........ 115
Questions submitted by Senator Grassley for Stewart Baker........ 118
QUESTIONS AND ANSWERS
Responses of James M. Cole to questions submitted by Senators
Leahy and Grassley [NOTE: Some responses of James M. Cole are
classified and therefore not printed as a part of this
hearing.]...................................................... 121
Responses of John C. Inglis to questions submitted by Senators
Leahy and Grassley [NOTE: The responses of John C. Inglis are
classified and therefore not printed as a part of this
hearing.]...................................................... 125
Responses of Robert S. Litt to questions submitted by Senator
Grassley....................................................... 126
Responses of Sean M. Joyce to questions submitted by Senator
Grassley....................................................... 127
Responses of James G. Carr to questions submitted by Senator
Grassley....................................................... 131
Responses of Jameel Jaffer to questions submitted by Senators
Leahy and Grassley............................................. 137
Responses of Stewart Baker to questions submitted by Senator
Grassley....................................................... 149
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Op Ed, ``A Better Secret Court'', New York Times, James G. Carr,
July 22, 2013.................................................. 159
Walton, Reggie B., Presiding Judge, U.S. Foreign Intelligence
Surveillance Court, Washington, DC, July 29, 2013, letter...... 162
Group Coalition letter, July 30, 2013............................ 192
Joint transparency letter, July 16, 2013......................... 196
Zwillinger, Marc J., Founder, ZwillGen PLLC, statement........... 199
The Constitution Project, Virginia E. Sloan, President, July 30,
2013, letter................................................... 206
U.S. Department of Justice, February 2, 2011, letter............. 208
U.S. Department of Justice, December 14, 2009, letter............ 210
STRENGTHENING PRIVACY RIGHTS AND NATIONAL SECURITY: OVERSIGHT OF FISA
SURVEILLANCE PROGRAMS
---------- -
----
WEDNESDAY, JULY 31, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9 a.m., in Room
SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy,
Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Durbin, Whitehouse,
Klobuchar, Franken, Blumenthal, Grassley, Sessions, Cornyn,
Lee, and Flake.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Today, the Judiciary
Committee will scrutinize Government surveillance programs
conducted under the Foreign Intelligence Surveillance Act, or
FISA. In the years since September 11th, Congress has
repeatedly expanded the scope of FISA and has given the
Government sweeping new powers to collect information on law-
abiding Americans, and we must carefully consider now whether
those laws may have gone too far.
Last month, many Americans learned for the first time that
one of these authorities--Section 215 of the USA PATRIOT Act--
has for years been secretly interpreted--secretly interpreted--
to authorize the collection of Americans' phone records on an
unprecedented scale. Information was also leaked about Section
702 of FISA, which authorizes the NSA to collect the
communications of foreigners overseas.
Now, first, let me make it very clear. I do not condone the
way these and other highly classified programs were disclosed,
and I am concerned about the potential damage to our
intelligence-gathering capabilities and national security. It
is appropriate to hold people accountable for allowing such a
massive leak to occur. We need to examine how to prevent this
type of breach in the future.
In the wake of these leaks, the President said that this is
an opportunity to have an open and thoughtful debate about
these issues. And I welcome that statement because this is a
debate that several of us on this Committee in both parties
have been trying to have for years. Like so many others, I will
get the classified briefings, but then, of course, you cannot
talk about them. There are a lot of these things that should be
and can be discussed. And if we are going to have the debate
that the President called for, the executive branch has to be a
full partner. We need straightforward answers, and I am
concerned that we are not getting them.
Just recently, the Director of National Intelligence
acknowledged that he provided false testimony about the NSA
surveillance programs during a Senate hearing in March, and his
office had to remove a fact sheet from its website after
concerns were raised about its accuracy. And I appreciate that
it is difficult to talk about classified programs in public
settings, but the American people expect and deserve honest
answers.
It also has been far too difficult to get a straight answer
about the effectiveness of the Section 215 phone records
program. Whether this program is a critical national security
tool is a key question for Congress as we consider possible
changes to the law. Some supporters of this program have
repeatedly conflated the efficacy of the Section 215 bulk
metadata collection program with that of Section 702 of FISA,
even though they are entirely different. Now, I do not think
that is a coincidence when we have people in Government make
that comparison, but it needs to stop. I think the patience of
the American people is beginning to wear thin, but what has to
be of more concern in a democracy is the trust of the American
people is wearing thin.
I asked General Alexander--and I understand he cannot be
here today because he is at a convention in Las Vegas, I guess
for hackers. But I asked General Alexander about the
effectiveness of the Section 215 phone records program at an
Appropriations Committee hearing last month, and he agreed to
provide a classified list of terrorist events that Section 215
helped to prevent, and I have reviewed that list. Although I
agree that it speaks to the value of the overseas content
collection implemented under Section 702, it does not do the
same for Section 215. The list simply does not reflect dozens
or even several terrorist plots that Section 215 helped thwart
or prevent--let alone 54, as some have suggested.
These facts matter. This bulk collection program has
massive privacy implications. The phone records of all of us in
this room--all of us in this room--reside in an NSA database. I
have said repeatedly that just because we have the ability to
collect huge amounts of data does not mean that we should be
doing so. In fact, it has been reported that the bulk
collection of Internet metadata was shut down because it failed
to produce meaningful intelligence. We need to take an equally
close look at the phone records program. If this program is not
effective, it has to end. And so far I am not convinced by what
I have seen.
I am sure that we will hear from witnesses today who will
say that these programs are critical in helping to identify and
connect the so-called dots. But there are always going to be
dots to collect, analyze, and try to connect. The Government is
already collecting data on millions of innocent Americans on a
daily basis based on a secret legal interpretation of a statute
that does not on its face appear to authorize this kind of bulk
collection. So what is going to be next? And when is enough
enough?
I think Congress has to carefully consider the powerful
surveillance tools that we grant to the Government. We have to
ensure that there is stringent oversight, accountability, and
transparency. This debate should not be limited to those
surveillance programs about which information was leaked. That
is why I have introduced a bill that addresses not only Section
215 and Section 702, but also national security letters, roving
wiretaps, and other authorities under the PATRIOT Act. As we
have seen in the case of ECPA reform, the protection of
Americans' privacy is not a partisan issue. I thank Senator Lee
of Utah and others for their support of my FISA bill, and I
hope other Senators will join that effort.
So I look forward to the testimony of the Government
witnesses. I am particularly grateful for the participation of
Judge Carr, a current member of the judiciary and a former
judge of the FISA Court. I hope this will give us an
opportunity for an open debate about the law, the policy, and
the FISA Court process that led us to this position.
I yield first, of course, to Senator Grassley, and then we
will call on the first panel with James Cole. We will put
General Inglis' statement in the record. It did not arrive in
time to be given, so his statement will be made part of the
record and he will answer questions.
[The prepared statement of Mr. Inglis appears as a
submission for the record.]
Chairman Leahy. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. Mr. Chairman, I thank you for holding
this hearing, and I think it is very important that Congress do
its oversight work, which this hearing is part of. But it is
even more important, the more secret a program, the more
oversight that Congress has. And as you said, probably more
about this program could be told to the public, and the more
that could be told, maybe more understanding and less
questioning on the part of the public.
The Foreign Intelligence Surveillance Act provides the
statutory framework for electronic surveillance in the context
of the foreign intelligence gathering. Investigating threats to
our national security gives rise to a tension between the
protections of citizens' privacy rights and the Government's
legitimate national security interests. Congress through this
legislation has sought--and I hope successfully--to strike a
balance in this sensitive area, but whether it is the right
balance, of course, is one of the reasons we are having this
hearing.
The reports in the media have raised important questions
regarding exactly what information about American citizens is
being collected by the Government, whether the programs are
being conducted as Congress intended, and whether there are
sufficient safeguards to ensure that they cannot be abused by
this or any future administration. In short, the reports have
raised questions about whether the proper balance has been
struck.
We need to look no further than the recent IRS scandal to
see what can happen when an unchecked executive branch
bureaucracy with immense power targets political opponents.
These actions trampled many citizens' most basic rights to
fully participate in our democratic process. This kind of abuse
cannot be permitted to occur in our national security agencies
as well, and maybe even more importantly.
Oversight by Congress will play an important role as we
move forward in evaluating the wisdom and value of the
intelligence programs. However, Congress needs accurate
information in order to conduct oversight responsibilities that
the Constitution demands that we do under our checks and
balances of Government. That is why it was especially
disturbing to see that the Director of National Intelligence
was forced to apologize for inaccurate statements he made last
March before the Senate Intelligence Committee. Those
statements concerned one of the very important programs that we
will be hearing about this very day. Nothing can excuse this
kind of behavior from a senior administration official of any
administration, especially on matters of such grave importance.
We have a constitutional duty to protect Americans'
privacy. That is a given. We also have an equal constitutional
responsibility to ensure that the Government provides a strong
national defense. That is a given. Intelligence gathering is,
of course, a necessary and vital part of that defense. We have
a duty to ensure that the men and women of our military, our
intelligence, and our counterterrorism communities have the
tools that they need to get the job done.
I understand officials contend that the programs authorized
under FISA that we will discuss today are critical tools that
have assisted them in disrupting attacks both here and abroad.
To the extent that possible in this unclassified setting, I
look forward to hearing how these programs have made our Nation
safer.
I want to emphasize that this is an equally important part
of the balance that we have to strike. And as we consider
whether reform of these intelligence programs is necessary or
desirable, we must also make sure that we do not overreact and
repeat the mistakes of the past.
We know that before 9/11 there was a wall erected under the
Clinton administration between intelligence gathering and law
enforcement. That wall contributed to our failure to be able to
connect the dots and prevent 9/11. None of the reforms that we
consider should effectively rebuild that wall.
Additionally, while the intelligence and the law
enforcement communities need to share information in a lawful
way, any reform we consider should not confuse the differences
between these two contacts.
For example, no reform should be based on the misguided
legal theory that foreign terrorists on foreign soil are
entitled to the same constitutional rights that Americans
expect here at home.
Finally, increased transparency is a worthy goal in
general, and as I suggested before, whenever we can talk about
these programs, I think there are less questions out there in
the minds of people, and we have probably created some public
relations problems for us and for this program and for our
national security community because maybe we have not made
enough information available. I say that understanding that we
cannot tell our enemies what tools we use.
But if we consider any reform that may bring more
transparency to the FISA process, we should keep in mind then
that every piece of information we make available to the public
will be read by a determined adversary, and that adversary has
already demonstrated the capacity to kill thousands of
Americans even on our own soil.
I welcome the panel witnesses and look forward to engaging
them as we seek to strike the difficult and sensitive balance
between privacy and security.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Our first witness will be James Cole. He first joined the
Department of Justice in 1979. He served for 13 years in the
Criminal Division, later becoming the Deputy Chief of the
Division's Public Integrity Section. He went into private
practice, sworn in as Deputy Attorney General on January 3,
2011. Of course, Mr. Cole is no stranger to this Committee.
Please go ahead, sir.
STATEMENT OF THE HONORABLE JAMES M. COLE, DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Cole. Thank you, Mr. Chairman, Mr. Ranking Member, and
Members of the Committee, for inviting us here today to speak
about the 215 business records program and Section 702 of FISA.
With these programs and other intelligence activities, we are
constantly seeking to achieve the right balance between the
protection of national security and the protection of privacy
and civil liberties. We believe these two programs have
achieved the right balance.
First of all, both programs are conducted under public
statutes passed and later reauthorized by Congress. Neither is
a program that has been hidden away or off the books. In fact,
all three branches of Government play a significant role in the
oversight of these programs. The judiciary--through the Foreign
Intelligence Surveillance Court--plays a role in authorizing
the programs and overseeing compliance; the executive branch
conducts extensive internal reviews to ensure compliance; and
Congress passes the laws, oversees our implementation of those
laws, and determines whether or not the current laws should be
reauthorized and in what form.
Let me explain how this has worked in the context of the
215 program. The 215 program involves the collection of
metadata from telephone calls. These are telephone records
maintained by the phone companies. They include the number the
call was dialed from, the number the call was dialed to, the
date and time of the call, and the length of the call. The
records do not include the names or other personal identifying
information, they do not include cell site or other location
information, and they do not include the content of any phone
calls. These are the kinds of records that under longstanding
Supreme Court precedent are not protected by the Fourth
Amendment.
The short court order that you have seen published in the
newspapers only allows the Government to acquire the phone
records; it does not allow the Government to access or use
them. The terms under which the Government may access or use
the records is covered by another, more detailed court order
that the DNI declassified and released today. That other court
order, called the ``primary order,'' provides that the
Government can only search the data if it has a ``reasonable,
articulable suspicion'' that the phone number being searched is
associated with certain terrorist organizations. The order also
imposes numerous other restrictions on NSA to ensure that only
properly trained analysts may access the data and that they can
only access it when the reasonable, articulable suspicion
predicate has been met and documented. The documentation of the
analyst's justification is important so that it can be reviewed
by supervisors before the search and audited afterwards to
ensure compliance.
In the criminal context, the Government could obtain the
same types of records with a grand jury subpoena, without going
to the court. But here, we go to the court every 90 days to
seek the court's authorization to collect the records. In fact,
since 2006, the court has authorized the program on 34 separate
occasions by 14 different judges. As part of that renewal
process, we inform the court whether there have been any
compliance problems, and if there have been, the court will
take a very hard look and make sure we have corrected those
problems. As we have explained before, the 11 judges on the
FISA Court are far from a rubber stamp; instead, they review
all of our pleadings thoroughly, they question us, and they do
not approve an order until they are satisfied that we have met
all statutory and constitutional requirements.
In addition to the judiciary, Congress also plays a
significant role in this program. The classified details of
this program have been extensively briefed to both the
Judiciary and Intelligence Committees and their staffs on
numerous occasions. If there are any significant issues that
arise with the 215 program, we would report those to the two
Committees right away. Any significant interpretations by the
FISA Court would likewise be reported to the Committees under
our statutory obligations, including opinions of any
significant interpretation, along with any of the court orders
that go with that.
In addition, Congress plays a role in reauthorizing the
provision under which the Government carries out this program
and has done so since 2006. Section 215 of the PATRIOT Act has
been renewed several times since the program was initiated--
including most recently for an additional 4 years in 2011. In
connection with those recent renewals, the Government provided
a classified briefing paper to the House and Senate
Intelligence Committees to be made available to all Members of
Congress. The briefing paper and a second updated version of it
set out the operation of the programs in detail, explained that
the Government and the FISA Court had interpreted the Section
215 authorization to authorize the bulk collection of telephone
metadata, and stated that the Government was, in fact,
collecting such information. The DNI also declassified and
released those two papers today.
We also made offers to brief any member on the 215 program,
and the availability of the paper and the opportunity for oral
briefings were communicated through ``Dear Colleague'' letters
issued by the Chairs of the Intelligence Committees to all
Members of Congress. Thus, although we could not talk publicly
about the program at the time--since it was properly
classified--the executive branch took all reasonably available
steps to ensure that Members of Congress were appropriately
informed about the programs when they renewed it.
I understand that there have been recent proposals to amend
Section 215 authority to limit the bulk collection of telephone
metadata. As the President has said, we welcome a public debate
about how best to safeguard both our national security and the
privacy of our citizens. Indeed, we will be considering in the
coming days and weeks further steps to declassify information
and help facilitate that debate, just as we have done this
morning in releasing the primary order and the congressional
briefing papers. In the meantime, however, we look forward to
working with the Congress to determine in a careful and
deliberate way what tools can best be structured and secured to
secure the Nation and at the same time protect our privacy and
civil liberties.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
Chairman Leahy. I think we can--the debate you speak of is
starting now. The administration did declassify a FISC order.
Of course, it does not contain any real legal analysis or
discussion of the 215 relevance standard, so that will be part
of our questions. But first I want to ask Deputy Director
Inglis a question before we even go into the legality and
usefulness of this.
We had a huge security breach, I think we will all agree,
committed by Edward Snowden. And a few years ago, Bradley
Manning downloaded hundreds of thousands of classified and
sensitive documents and passed them on to WikiLeaks.
Now, if two data breaches of this magnitude had occurred in
the private sector, somebody would have been held accountable
by now. There is a lot of material kept in the private sector,
trade secrets and so on. If they allowed this kind of leaking
going on, in most companies somebody would be held accountable.
Who at the NSA has taken responsibility for allowing this
incredibly damaging security breach to occur?
Mr. Inglis. Well, sir, that accountability must be
considered at at least two levels: one, at the individual
level, we have to take a hard look to see whether individuals
exercised their responsibilities appropriately, whether they
exercised due diligence in the exercise of those
responsibilities----
Chairman Leahy. Well, obviously there was not. I mean, if a
29-year-old school dropout could come in and take out massive,
massive amounts of data, it is obvious there were not adequate
controls. Has anybody been fired?
Mr. Inglis. No, sir, not yet.
Chairman Leahy. Has anybody been admonished?
Mr. Inglis. Sir, those investigations are underway. When
those investigations are complete, we will have a full
accounting within the executive branch and to the Congress of
individual and systemic accountability. I think that at the end
of the day we will have to look to see whether people exercised
the responsibilities appropriately, whether they essentially
exercised the trust that is accorded to them.
In our system we extend top secret SCI, special
compartmented intelligence clearances to a range of people and
expect that they will then exercise that trust as the American
people intended. And we will make a full accounting of that.
Chairman Leahy. I remember President Reagan made up a
statement, which many of us use, about trust, but verify. Don't
you have--I realize you have to act with a certain amount of
trust, but don't you have people double-checking what somebody
is doing?
Mr. Inglis. We do, sir. And----
Chairman Leahy. Who double-checked Mr. Snowden?
Mr. Inglis. Well, there are checks at multiple levels.
There are checks in terms of what an individual might be doing
at any moment in time. There are----
Chairman Leahy. They obviously failed.
Mr. Inglis. In this case, I think we can say that they
failed, but we do not yet know where.
Chairman Leahy. You ``think'' you can say they failed. I
mean, he is sitting over at the airport in Russia with millions
of items.
Mr. Inglis. I would say that with the benefit of what we
now know, they did fail.
Chairman Leahy. Okay.
Mr. Inglis. But we do not yet know where precisely they
failed, and we may find that they failed at multiple points in
the system, either in the exercise of individual responsibility
or in the design of the system in the first place.
Chairman Leahy. Has anybody offered--been asked to resign
or offered to resign because of this failure?
Mr. Inglis. No one has offered to resign. Everyone is
working hard to understand what happened and to put in place
the necessary mechanisms to----
Chairman Leahy. How soon will we know who screwed up?
Mr. Inglis. I think that we will know over weeks and months
precisely what happened and who should then be held
accountable, and we will hold them accountable.
Chairman Leahy. Are you taking any steps now to make sure
such a screw-up does not happen again?
Mr. Inglis. We are, sir. We have instituted a range of
mechanisms, not simply one, to ensure that we would understand
and immediately be able to catch someone who tried to repeat
precisely what Mr. Snowden did. But we also have to be creative
and thoughtful enough to understand that there are many other
ways somebody might try to beat the system.
Chairman Leahy. You can understand why some people would
use that old expression, ``locking the door after the horse has
been stolen.''
Mr. Inglis. I can, sir.
Chairman Leahy. Okay. Thank you. I appreciate your candor.
And I realize General Alexander is in Las Vegas, but I will ask
you this question: Last month, he promised to provide me with
specific examples of terrorism cases where Section 215 phone
records collections had been used. I was led to believe by his
answer that there were dozens of cases where Section 215
authority has been critical to the discovery and disruption of
terrorist plots. I have now reviewed all the classified
material that the NSA sent, and I am far from convinced. The
document is classified, but what was said in open testimony is
that Section 215 helped to thwart or prevent 54 terrorist
plots. Not by any stretch can you get 54 terrorist plots.
In how many cases was Section 215 bulk phone records
collection critical to preventing a terrorist plot?
Mr. Inglis. Sir, I might answer in open session and then
offer to provide follow-up details in a classified session.
I would say that the administration has disclosed that
there were 54 plots that were disrupted over the life of these
two programs----
Chairman Leahy. Section 215 was critical to preventing----
Mr. Inglis. No, sir. And of those----
Chairman Leahy [continuing]. Fifty-four plots?
Mr. Inglis. And of those plots, 13 of those had a homeland
nexus. The others had essentially plots that would have come to
fruition in Europe, Asia, other places around the world.
Chairman Leahy. How many of those----
Mr. Inglis. Of the 13----
Mr. Inglis. Of the 13----
Chairman Leahy. How many of those 13 were plots to harm
Americans?
Mr. Inglis. Of the 13 that would have had a homeland nexus,
in 12 of those 215 made a contribution. The question you have
asked, though, is more precise in the sense of is there a ``but
for'' case to be made, that but for 215 those plots would have
been disrupted. That is a very difficult question to answer
insomuch as that is not necessarily how these programs work.
That is actually not how these programs work.
What happens is that you essentially have a range of tools
at your disposal. One or more of these tools might tip you to a
plot. Others of these tools might then give you an exposure as
to what the nature of that plot is. And, finally, the exercise
of multiple instruments of power, to include law enforcement
power, ultimately completes the picture and allows you to
interdict that plot.
There is an example amongst those 13 that comes close to a
``but for'' example, and that is the case of Basaaly Moalin.
Chairman Leahy. I have read that. I have read the material
on that. It would be safe to say there are not 54 ``but fors''?
Mr. Inglis. It is safe to say that, sir.
Chairman Leahy. That is not right----
Mr. Inglis. This capability, the 215 collection of
metadata, is focused on the homeland. It is focused on
detecting plots that cross the foreign to homeland domain.
Chairman Leahy. But it was not----
Mr. Inglis. Given that only 13 of those plots----
Chairman Leahy. But it was not a ``but for'' in 54 cases?
Mr. Inglis. It was not, sir.
Chairman Leahy. Thank you.
Mr. Inglis. Given that only 13 of those plots had a
homeland nexus, it, therefore, only had its principal
opportunity to make a contribution in 13 or less. In fact, it
made a contribution to a plot that was disrupted overseas. I
think that shows that this actually is looking not simply at
the homeland, but it is looking at the foreign-homeland nexus.
Chairman Leahy. And I hope we are not mixing up 215 with
other sections.
Mr. Inglis. We try hard not to do that, sir. They are
distinguished but complementary tools.
Mr. Joyce. Mr. Chairman, if I might add some insight to the
value of 215?
Chairman Leahy. My time is up, but go ahead. If that is
okay with you?
Senator Feinstein. Can't they make statements?
Chairman Leahy. Go ahead, Mr. Joyce. No, they are just here
to help.
Go ahead, Mr. Joyce.
Mr. Joyce. I just want to add, as you mentioned before, you
know, how many dots do we need? I think we need to frame this
by understanding who the adversary is and what they are trying
to do. And they are trying to harm America. They are trying to
strike America. And what we need is we need all these tools.
So you mentioned the value of 702 versus the value of
business records 215. They are different. And I make the
analogy like a baseball team. You have your most valuable
player, but you also have the players that hit singles every
day.
Chairman Leahy. Mr. Joyce----
Mr. Joyce. I just want to relate to the homeland plots. So
in Najibullah Zazi, in the plot to bomb the New York subway
system, business record 215 played a role. It identified
specifically a number we did not previously know of----
Chairman Leahy. It was a critical role?
Mr. Joyce. What I am saying, it plays a different----
Chairman Leahy. Wasn't it some undercover work that took
place in there?
Mr. Joyce. Yes, there was some undercover work. But what I
am saying, each tool plays a different role, Mr. Chairman. I am
not saying that it is----
Chairman Leahy. Wasn't the FBI----
Mr. Joyce [continuing]. The most important tool----
Chairman Leahy. Wasn't the FBI already aware of the
individual in contact with Zazi?
Mr. Joyce. Yes, we were, but we were not aware of that
specific telephone number, which NSA provided us.
Chairman Leahy. The only reason I go down this, you know,
if we did everything, for example, we could have more security
if we strip-searched everybody who came into every building in
America. We are not going to do that. We would have more
security if we closed our borders completely to everybody. We
are not going to do that. If we put a wiretap on everybody's
cell phone in America, if we search everybody's home--but there
are certain things, certain areas of our own privacy that we
Americans expect. And at some point you have to know where the
balance is. But I have gone into other people's time. Senator
Grassley.
Senator Grassley. Would you, Mr. Chairman, clarify for me
the process? We have had the testimony now, so we----
Chairman Leahy. Yes.
Senator Grassley [continuing]. Ask questions of all the
people?
Chairman Leahy. That is right--well, we were going to have
questions of Mr. Cole and Mr. Inglis, but Mr. Litt and Mr.
Joyce are here to be able to add if anything is necessary.
Senator Grassley. Sure. Okay.
Chairman Leahy. Thank you.
Senator Grassley. I will start out with Mr. Cole, and my
questions are kind of to emphasize, to inform, and to even be
repetitive, because I think the public needs a greater
understanding of what we are up to here.
There are two legal authorities that we are discussing
here: one, Section 702 authority. That one I am going to lay
aside. The other authority is Section 215. Many Americans are
concerned about the scope there. They fear that the Government
is spying on them and prying into their personal lives. I ask
questions to make absolutely sure that I understand the scope
of 215.
The first question: What information does the Government
collect under this program? And specifically is anyone's name,
address, Social Security number, or location collected?
Mr. Cole. Senator Grassley, first, to answer the second
part, name, address, location, Social Security number is not
collected under the 215 program at all.
Senator Grassley. Okay.
Mr. Cole. Never has been, never will be.
Second, the nature of the collection is really very
dependent on this reasonable, articulable suspicion. While a
lot of metadata does exist in a database, it cannot be accessed
unless you go through the procedures of documenting that there
is reasonable, articulable suspicion that the phone number you
want to ask about is associated with terrorists. Unless you get
that step made, you cannot enter that database and make a query
and access any of those data.
Senator Grassley. Okay. Again, for emphasis, is the
Government listening in on any American phone calls through
this program? And let me say that I just heard within the last
week on some news media that somebody is declaring that any
bureaucrat someplace in some intelligence agency can pick up
the phone and listen to the conversation.
Mr. Cole. Nobody is listening to anybody's conversations
through this program, and through this program nobody could. No
information like that is being collected through this program.
Senator Grassley. Mr. Litt, Section 215 contains a
requirement that records collected under the program provision
be ``relevant to an authorized investigation.'' As a legal
matter, how can you justify the assertion that phone records of
millions of Americans who have nothing to do with terrorism are
relevant to an authorized investigation under Section 215?
Mr. Litt. So I would begin by noting that a number of
judges repeatedly over the years have found that these records
are, in fact, relevant. The reason is that the standard of
relevance that we are talking about here is not the kind of
relevance that you think about in the Perry Mason sense of a
criminal trial. It is a much broader standard of relevance, and
in a number of circumstances in the law, such as grand jury
subpoenas or civil discovery, it is a well-accepted concept
that if you need to get a large group of records in order to
find a smaller group of records that actually provides the
information you need to move forward, the larger group of
records can be relevant. That is particularly true in this case
because of the kinds of controls that the Deputy Attorney
General mentioned, the fact that the queries are limited, the
access to the data is limited, and for that reason the FISA
Court has repeatedly found that these records are relevant.
Senator Grassley. Is there any legal precedent that
supports such a broad definition of relevance to an
investigation?
Mr. Litt. I would actually defer that to the Deputy
Attorney General.
Senator Grassley. Okay.
Mr. Cole. Well, the legal precedent comes from the history
of all the orders that have been issued, the courts having
looked at this under the FISA law and under the provisions of
215 and making sure that under the provisions and the ability
to get these records relevant to a criminal--or, rather, a
foreign intelligence--investigation, they have gone through,
the law that Mr. Litt has described on, as I said, I believe 34
different occasions to do this analysis. So that legal
precedent is there.
Senator Grassley. Okay. Mr. Joyce, one part of the balance
that we have to strike protecting privacy of Americans, the
other part national security. Thankfully, until the Boston
bombing we had prevented large-scale terrorist attacks on
American soil. I have a few questions about how valuable the
role of Section 215 and 702 programs have played in predicting
our national security, two questions, and then I will have to
stop and go to our colleagues.
Can you describe any specific situations where Section 215
and Section 702 authorities helped disrupt a terrorist attack
or identify individuals planning to attack, the number of
times? And then, second, if you did not have the authority to
collect phone records in the way that they are now under
Section 215, how would you have effected those investigations?
Mr. Joyce. So your first question, Senator, as far as a
specific example of when we have utilized both of these
programs is one I first mentioned, the first al Qaeda-directed
plot since 9/11 in September 2009 when Najibullah Zazi and
others conspired to plot to bomb the New York subway system. We
initially found out about Zazi through an NSA 702 coverage, and
he was actually talking to an al Qaeda courier who was--he was
asking for his help to perfect an explosives recipe. So but for
that, we would not have known about the plot. We followed that
up with legal process and then had FISA coverage on him and
others as we fully investigated the plot.
Business records 215 was also involved, as I had previously
mentioned, where we also through legal process were submitting
legal process for telephone numbers and other e-mail addresses,
other selectors, but NSA also provided another number we were
unaware of a co-conspirator, Adis Medunjanin. So that is an
instance where a very serious plot to attack America on U.S.
soil that we used both these programs.
But I say, as Chairman Leahy mentioned, there is a
difference in the utility of the programs. But what I say to
you is that each and every program and tool is valuable. There
were gaps prior to 9/11, and what we have collectively tried to
do, the members of the committee, other members of the other
oversight committees, the executive branch, and the
intelligence community, is we have tried to close those gaps
and close those seams. And the business record 215 is one of
those programs that we have closed those seams.
So I respectfully say to the Chairman that the utility of
that specific program initially is not as valuable. I say you
are right. But what I say is it plays a crucial role in closing
the gaps and seams that we fought hard to gain after the 9/11
attacks.
As you mentioned, another instance when we used the
business record 215 program, as Chairman Leahy mentioned,
Basaaly Moalin. So initially the FBI opened a case in 2003
based on a tip. We investigated that tip. We found no nexus to
terrorism and closed the case.
In 2007, the NSA advised us through the business record 215
program that a number in San Diego was in contact with an Al-
Shabaab, an al Qaeda East Africa member in Somalia. We served
legal process to identify that unidentified phone number. We
identified Basaaly Moalin. Through further investigation we
identified additional co-conspirators, and Moalin and three
other individuals have been convicted and some pled guilty to
material support to terrorism.
So I go back to we need to remember what happened in 9/11,
and everyone in this room remembers where they were and what
happened----
Chairman Leahy. Mr. Joyce, you are stating the obvious
there. Be specific to it because we are going to have votes on
the floor, and it is going to take us out of here. We would
like to keep somewhat close to the time.
Mr. Joyce. All I will say, Mr. Chairman, is, respectfully,
you mentioned about the dots. We must have the dots to connect
the dots.
Chairman Leahy. Thank you. One of the advantages of this
Committee, the members on both sides of the aisle bring a lot
of different abilities and various areas of expertise.
The next witness is the Chair of the Senate Intelligence
Committee.
Senator Feinstein. Am I a witness here?
Chairman Leahy. The next witness? The next questioner is
the Chair of the Senate Intelligence Committee, Senator
Feinstein, and it is a great advantage to us to have her on
this Committee.
Senator Feinstein. Well, thank you very much. Thank you
very much, Mr. Chairman.
I would like to begin by putting a couple of letters in the
record. These have just been declassified. The first is a
letter to myself and Senator Chambliss on February 2, 2011,
before this program came up before the Senate, explaining it,
making the information available. The second is that same
letter to the House, so we have before 2010 and 2011. I would
also----
Chairman Leahy. Without objection, they will be made part
of the record.
Senator Feinstein. Thank you.
[The letters appear as a submission for the record.]
Senator Feinstein. I would also like to--I just realized
that I believe Mr. Inglis' statement makes public for the first
time a fact, and it is an important fact. It is on page 4 of
his letter, and what he points out I think Mr. Cole described,
that the query, which is the search of the database, can only
be done on reasonable, articulable suspicion and only 22 people
have access to that, trained and vetted analysts at the NSA.
If the numbers are run and it looks like there is a
problem, the report is made to the FBI. And the FBI looks at
it, and if they want to collect content, they must get a
probable cause warrant from the Foreign Intelligence
Surveillance Court.
Let me quote: ``. . . in 2012, based on those fewer than
300 selectors''--that is, queries, which actually were 288 for
Americans--``we provided a total of 12 reports to FBI, which
altogether `tipped' less than 500 numbers.''
So what you are saying, if I understand it, Mr. Inglis, is
that, maximum, there were 12 probable cause warrants. Is that
correct?
Mr. Inglis. I think in truth, any one of the numbers that
were tipped could have led the FBI to develop probable cause on
more than 12. But there were only 12 reports provided to the
FBI across 2012, and there were less than 500 numbers in those
reports collectively that were tipped to the FBI in 2012.
Senator Feinstein. Let me ask Mr. Joyce this question. Can
you tell us how many orders--how many probable cause warrants
were issued by the FBI in 2012?
Mr. Joyce. I cannot off the top of my head, Senator. I can
get you those numbers, though, following the hearing.
Senator Feinstein. Well, I think we would appreciate that.
I think----
Mr. Joyce. I would just add, though, you make a very good
point. Whether it is the 702 program or the business record
215, once that information is passed to us involving anyone in
the United States, we must go to the FISC, the Foreign
Intelligence Surveillance Court, and show probable cause on the
FISC warrant basically to provide content or whatever as far as
overhears for that specific individual.
Senator Feinstein. Good.
[The information referred to appears as a submission for
the record.]
Senator Feinstein. Now, the NSA has produced and
declassified a chart, which I would like to make available to
all members. It has the 54 total events. It includes Section
702 authority and Section 215 authority, which essentially work
together. And it shows the events disrupted based on a
combination of these two programs: 13 in the homeland, 25 in
Europe, 5 in Africa, and 11 in Asia.
Now, I remember, I was on the Intelligence Committee before
9/11, and I remember how little information we had. And the
great criticism of the Government because of these stovepipes,
the inability to share intelligence, the inability to collect
intelligence, we had no program that could have possibly caught
two people in San Diego before the event took place.
I support this program. I think based on what I know, they
will come after us, and I think we need to prevent an attack
wherever we can from happening. That does not mean that we
cannot make some changes.
Yesterday at the Intelligence Committee, I outlined some
changes that we might consider as part of our authorization
bill, and let me quickly run through them: the number of
American phone numbers submitted as queries on a regular basis
annually from the database; the number of referrals made to the
FBI each year based on those queries, and how many times the
FBI obtains probable cause warrants to collect the content of a
call, which we now know is very few times, relatively; the
number of times that a company--this is at their request from
the high-tech companies--that any company is required to
provide data pursuant to FISA's business records provision.
As you know, the companies who provide information are
seeking to be able to speak more publicly about this, and I
think we should. There are some changes we can make to the
business records section. We are looking at reducing the 5-year
retention period that NSA keeps phone records in its database
down to 2 or 3 years. It is my understanding that the
usefulness of it tails off as the years go on. We have to
determine that point and then consider it.
And requiring the NSA to send to the FISA Court for its
review the records of each query of the database as soon as it
is practicable so the Court can determine the propriety of the
query under the law.
These are things that can be done to increase transparency,
but not to stop the program. I believe based on what I have
seen--and I read intelligence regularly--that we would place
this Nation in jeopardy if we eliminated these two programs.
Thank you, Mr. Chairman.
Mr. Litt. Mr. Chairman, may I just offer a brief response
to that?
Chairman Leahy. Just a moment, and then I will. Would you
also include reporting how often NSA or anybody else goes into
an individual's browsing history or their e-mails or social
media activity?
Senator Feinstein. Sure, right. And we could do that in the
private sector, too, how often this happens.
Chairman Leahy. I was just looking at this article in the
Guardian today, which may or may not be accurate.
Mr. Litt, you wanted to say something?
Mr. Litt. Yes, thank you. I just wanted to say that I think
that this administration is more or less in the same place that
Senator Feinstein is. We are open to reevaluating this program
in ways that can perhaps provide greater confidence and public
trust that this is, in fact, a program that achieves both
privacy protections and national security. And, in fact, the
White House has directed the Director of National Intelligence
to make recommendations in that area. So we will be looking
forward to working with your Committee and this Committee to
see whether there are changes that can be made that are
consistent with preserving the essence of the program and yet
provide greater public confidence.
Chairman Leahy. Thank you. Senator Cornyn? Again, speaking
of the diversity we have, Senator Cornyn, of course, is the
Deputy Republican Leader, and we appreciate the amount of time
he spends in this Committee.
Senator Cornyn. Mr. Chairman, thank you for having this
hearing, and thanks to each of the witnesses for your service
to our country.
Those of us who have been here for a little while and
through the evolution of these programs have, I think, learned
more than the public generally knows about how they operate,
and I think that has helped give us confidence in what is
occurring. But I am also sensitive to Senator Feinstein, the
distinguished Chair of the Senate Intelligence Committee, some
of her observations--and Mr. Litt I think reiterated that,
too--about the importance of maintaining public confidence in
classified programs, which is a tough thing to do.
But I think I am also reminded of the fact that, since
2007, we have 43 new members of the U.S. Senate, and so there
have been some people who have come to the Senate in recent
years who perhaps have not been able to observe through their
regular work some of the development of these programs, and so
I think a hearing like this and the other hearings that you
have participated in that I have attended have been very
important to giving everyone a foundation of information where
they can have confidence on behalf of the people we represent.
But I would like to ask, maybe starting with Mr. Cole and
go down the line, to get your reaction to the criticism made of
the operations of the Foreign Intelligence Surveillance Court
made by former Intelligence Surveillance Court Judge James
Robertson. And this really has to do with the nature of
essentially ex parte proceedings before the Court. I know that
when it comes to individualized, particularized warrants, it is
common in our system to have essentially ex parte proceedings.
But here, when the Foreign Intelligence Surveillance Court is
authorizing a program, according to Judge Robertson, under this
expanded jurisdiction, it has turned the Court into something
of an administrative agency. And, of course, talking again
about public confidence in the oversight of the Court, which I
think is an important part of maintaining that confidence,
whether you think there might be some advantage, as Senator
Blumenthal and I have discussed informally, having more of an
adversarial process. My experience and I trust your experience
with the adversarial process in our courts is it usually
produces more information that allows the judge to make a
better decision. And I would just like to get your reaction,
Mr. Cole, and perhaps go down the line.
Mr. Cole. Thank you, Senator. First of all, I can tell you
from the practice we have before the FISA Court that it is far
more than just another administrative agency. They push back
hard, and they make sure that they are the guardians of the law
and the Constitution.
The topic of having an adversary--that is one that we are
in the process of discussing and I know is being discussed in
the Senate and in the House, and it is one of those areas that
I think is part of the debate that we should be having on how
best to do this. There are obviously issues we will have to
work through as to clearances and classifications and who would
be there and what their role would be and things of that nature
if there is going to be a practical way to do it. But those are
the kinds of discussions I think we do need to have.
As you pointed out, it is not the usual course, and in the
criminal law context we have many search warrants, Title III
surveillance warrants that come in, that are not done in an
adversary way. But this is certainly part of what we would like
to be talking about and see if this has some utility.
Senator Cornyn. Thank you.
Mr. Inglis, do you have anything to add?
Mr. Inglis. My background is largely operational, not in
the training of the law, but that said, I am more than mindful
of the absolute obligation to ensure that these things are done
fully consistent with the Constitution. We welcome any and all
hard questions. Whether that comes from an adversarial process
or the process we enjoy, we think that we should be held
accountable to answer those questions and ensure that the
authorities that we are granted supports the whole of the
Constitution, not just the defense of national security but the
defense of civil liberties.
Senator Cornyn. Thank you.
Mr. Litt.
Mr. Litt. The only point that I would like to make from the
perspective of the intelligence community is to note that we
already--this is an unusual process to have the Court involved
in an essentially executive branch activity, conduct of foreign
intelligence. I do not know of any other nation in the world
that has the degree of judicial supervision of intelligence
activities that this country has already. And I think that to
some extent people have a--make a mistaken analogy when they
hear the term ``court'' and they think of this as an adversary
proceeding, like a criminal trial or a civil trial. The
question is: What is the best way to ensure that our
intelligence programs are conducted in compliance with the law
and with adequate protection for people's privacy and civil
liberties? And if it would help to have some sort of adversary
process built into that, I think that would be entirely
appropriate. But we should not be trying to make this mimic a
criminal trial because it is a very different process.
Senator Cornyn. Mr. Joyce, do you have anything to add?
Mr. Joyce. No. My background is operational, so I would
defer to my lead attorney, the Deputy Attorney General.
Senator Cornyn. Okay. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I hope, Mr. Litt, you are not saying that we have something
that is very unusual, that we have something that can collect
data on U.S. citizens, that you are not saying the Court should
not be involved.
Mr. Litt. No, no. I am not saying that.
Chairman Leahy. I just want to make sure.
Mr. Litt. I am not saying that at all.
Chairman Leahy. Thank you.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to our witnesses. As a former prosecutor, I have long
believed that our laws must strike the right balance between
protecting our civil liberties and protecting our national
security.
I think most Americans, I will say, did not expect the
sweeping nature of the surveillance programs, and for that
reason I think this opportunity to reexamine these programs to
see if there are ways we can ensure that they are more
transparent and accountable without sacrificing the benefits
they provide to national security is very important. And I just
got this order, the Court order, Mr. Cole, that was just hot
off the presses here. And could you--you said in your earlier
testimony, you talked about the metadata, which I assume is
just the collected data we have been hearing about on domestic
phone calls, which is not the phone conversation itself. And
then you go down to a Category 2, which must be when you are
investigating parts of that metadata, which is based on this
order; and then Category 3--this is how I am thinking of it in
terms of circles--would be when you would actually get a court
order to start investigating a person. Is that a fair way to
look at this?
Mr. Cole. I think that is a very good way of looking at
it--and the word you used I think is important here, the
surveillance that is being done-- because the only thing we are
actually involved in surveiling are these much smaller groups
that we have reasonable, articulable suspicion for. We are not
surveiling everything that is in the database. You have to go
through some very specific requirements that are contained in
that order before you can surveil.
Senator Klobuchar. In this order--and you said it would
be--there has to be a reasonable suspicion that it is a
terrorist. That is what you said earlier?
Mr. Cole. Reasonable suspicion that is relevant to an
investigation of certain terrorist organizations.
Senator Klobuchar. Okay. And so is there a percentage of
that data that, you know, you look at when you get to the big
metadata, then you go down to the next category, what
percentage of the metadata is the next category that is based
on this order?
Mr. Cole. I think it is hard to really quantify. I have
heard numbers anywhere from 0.0001 percent of that metadata. It
is a very, very tiny fraction of the metadata that actually is
accessed and----
Senator Klobuchar. And then when you go down to the part
there where you are actually investigating someone or you get a
special court order to look into it, what percentage is that?
Mr. Cole. That is then even smaller, because we then have
to have probable cause to believe that those people are falling
within the requirements of the Foreign Intelligence
Surveillance Act.
Senator Klobuchar. Okay. So given how small this is, is
there no way of limiting the breadth of the data and
information collected under the program that would not have
adverse effects on our ability to effectively monitor national
security threats?
Mr. Cole. Well, this is what we are looking at right now
and trying to work through. As Chairman Feinstein had noted,
she has made some recommendations. We are in the process of
looking through that process to see if there are other ways to
go about doing this where we still preserve the effectiveness
of the operation and try to limit whatever kind of privacy and
civil liberties intrusions that come from that.
Senator Klobuchar. Very good. And I know one idea that
General Alexander suggested is that he is open to the idea of
telecommunications companies holding the records rather than
having the NSA collect them, although we know we still have
that issue of telephone immunity anyway, as long as the
Government could get access.
Mr. Inglis, do you want to testify about that and answer
that? Do you think that is a viable alternative? It seems to me
that we may have to do more than that.
Mr. Inglis. So I think there are multiple implementations
that could work. I think that we need to score all of those
implementations against a set of criteria, which would include
at the top that they do provide protections for privacy and
civil liberties, but they also need to have sufficient breadth
to your question, that if you ask a question of this database,
let us say you have the situation we had with Basaaly Moalin,
we have a number from East Africa al Qaeda that we have
reasonable suspicion is associated with a plot against the
homeland, you want to check to see whether there is, in fact, a
connection into the homeland. You need sufficient breadth in
the database that you are about to query to have confidence
that if you come away with no response, that you can take that
as confidence there is not a plot; or that if you get a
response, you have found it, whether it is in any particular
location in the world. So the breadth is important.
But I think that we can take a look at whether this is
stored at the provider so long as you have some confidence you
can do this in a timely way. We need to sometimes disrupt an
operation that is in play, that is in progress, and so seconds,
hours matter.
There might be other situations where you have the time to
perhaps take more time, but we will have to think our way
through whether the providers can meet that standard. I think
there are technical architectures where they can.
Finally, to the question that Senator Feinstein has asked,
a very thoughtful question, do we need to hold these records
for 5 years? Our experience has shown that intelligence, writ
large, tends to have a significant tail-off at 5 years, but
there is a knee in the curve that might live at 2 years or 3
years. We need to base it upon data with a rearward look, take
a hard look at that and determine how long these things really
are necessary and beyond that how long they are valuable.
Senator Klobuchar. And one quick question at the end here,
Mr. Cole. Now that this Court order has been declassified, is
there effort underway to declassify some of the legal rationale
behind it?
Mr. Cole. We are still working on trying to declassify a
number of things in this area. We are trying to get as much as
we can out, obviously balancing the national security concerns
with those released. But our goal is to try and get out as much
information as we can to provide transparency on this.
Senator Klobuchar. Thank you very much.
Chairman Leahy. Senator Sessions.
Senator Sessions. Thank you all very, very much. Let me ask
this, Mr. Litt. With regard to Mr. Joyce's comments about a
certain case that they were able to interdict and stop, dealing
with the subway matter, he said that the collection of data
under this program played a role in the successful culmination
of that case.
Just fundamentally, you were Deputy Attorney General under
Janet Reno for 6 years in the Department of Justice. You were a
member of the ABA's Criminal Justice Committee. You have
studied these issues and are required to make sure that laws
are followed. But is this what was done in that case? Does it
violate the Constitution in any way as defined by U.S. case law
and the words of the Constitution itself?
Mr. Litt. So, first, I thank you for the promotion, but I
never actually served as Deputy Attorney General. I had a
couple of positions in the Department, but----
Senator Sessions. You were Deputy Assistant----
Mr. Litt. Deputy Assistant Attorney General.
Senator Sessions. We have to get all these Assistant
Deputies and Deputy Assistants straight. Excuse me.
Chairman Leahy. I think we can all agree he is highly
qualified.
Senator Sessions. Well, you are experienced in these
matters, and I just want to raise a certain point, if you will
give me a brief answer on that.
Mr. Litt. I think the answer is quite clear under the
controlling case law that a collection of this kind of
telephone metadata from the telephone companies is not a
violation of anyone's constitutional rights.
Senator Sessions. And when I was a federal prosecutor--and,
Mr. Cole, you were a prosecutor--virtually every complex case
resulted in a subpoena to phone companies to get people's phone
records. Is that correct?
Mr. Cole. I would say the vast majority involved getting
phone records in a case.
Senator Sessions. And when you do that, you obtain their
name, a lot of details about the call, but not the contents of
the case.
Mr. Cole. That is right. Many times you can get subscriber
information--who owns the phone, what their billing address is,
things of that nature--which we do not get under this program.
Senator Sessions. So this haystack of information that you
have is only numbers. It does not even have the name of the
person connected to that number, the subscriber of that number.
Is that correct?
Mr. Cole. That is correct. If we find a chain that we think
is important, we then have to do another investigation to find
out who actually belongs to those numbers.
Senator Sessions. Well, Chairman Leahy and others--and we
talked when the PATRIOT Act passed, we went into great, great
detail about all these issues. And I would say that balancing
the constitutional rights of danger versus constitutional
rights is not the right way to phrase this. I believe
everything in the PATRIOT Act that we passed was consistent in
principle to the very things that have been done by law
enforcement for years and decades in terms of the ability to
issue subpoenas and obtain records. Maybe a few new
applications of it to new technologies, but essentially the
principles were maintained. Would you agree, Mr. Cole?
Mr. Cole. Yes, Senator. As I said at the beginning, I think
we have struck the balance properly here, but there is always
room for discussion and getting people's input. And times
sometimes do change, and it is good to come back and revisit
these things and make sure we have the balance right.
Senator Sessions. Well, I agree with that. I think the
questions that have been raised require us to look at that.
Now, the data, this haystack of phone numbers, there is no
ability to go back and listen to any of those conversations
that occurred at a previous time, is there?
Mr. Cole. No. We do not even capture through this any
conversations, so there is no ability, no possibility of
listening to conversations through what we get in this program.
Senator Sessions. And, Mr. Litt, as an intel lawyer here,
if you have the ability to tap a terrorist's phone call in
Europe or Yemen, let us say, and that person calls to the
United States, by definition of a lawful wiretap you listen to
the persons that the individual calls. Is that right? So, I
mean, a wiretap by definition is to listen to the conversations
that the bad guy has with whoever he calls?
Mr. Litt. That is correct, and under FISA the Court
requires us to have minimization procedures to ensure that we
do not retain or disseminate communications of Americans unless
those are valid foreign intelligence or evidence of a crime.
Senator Sessions. But if you want to tap a terrorist you
have identified in the United States, you have to have a
warrant with probable cause, do you not?
Mr. Litt. That is correct.
Senator Sessions. And so if you identify a person by
surveiling a foreign terrorist, you identify phone calls to the
United States, you would still have to have information
sufficient to get a court to give you a Title III warrant to
listen to that person's phone calls?
Mr. Litt. It could be a Title III warrant. It could be an
individual warrant under Title I of FISA. But either way there
is a probable cause standard that has to be met.
Senator Sessions. And it requires Court approval.
Mr. Litt. Yes.
Senator Sessions. Mr. Chairman, I know this Committee has
worked hard on this. We tried to make sure that every provision
in the Act was consistent with our constitutional and legal
heritage. But we will listen to the concerns that are being
raised, and if we made a mistake, I am willing to change it.
But I am inclined to think all of these actions are consistent
with the Constitution and laws of the United States.
Chairman Leahy. One of the reasons we are having the
hearing is that there are going to be some proposals for
changes in the law, and I want to make sure that we have as
much information as possible for it.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I also want to
thank all the witnesses here, Mr. Cole, Mr. Inglis, Mr. Litt,
and Mr. Joyce, for your service to the country.
I want to be clear at the outset. I think that these
programs protect our country and have saved lives. But I do
think there is a critical problem at the center of this debate,
and that is the lack of transparency around these programs. The
Government has to give proper weight to both keeping America
safe from terrorists and protecting Americans' privacy. But
when almost everything about these programs is secret and when
the companies involved are under strict gag orders, the
American public has no way of knowing whether we are getting
that balance right. I think that is bad for privacy and bad for
democracy.
Tomorrow I am introducing a bill to address this, to fix
this. It will force the Government to disclose how many
Americans have had their information collected under key
authorities in the Foreign Intelligence Surveillance Act, and
it will give force--it will also force the Government to
disclose how many Americans have had their information actually
reviewed by federal agents.
My bill would also allow private companies to disclose
aggregate figures about the number of FISA orders that they are
receiving and the number of their users that these orders have
affected.
Two weeks ago, a broad coalition of 63 Internet companies
and bipartisan civil liberties groups sent a letter to the
President asking for the reforms that my bill would make law. I
am proud to say that I am introducing my bill with the support
of Chairman Leahy, Senator Blumenthal, and a number of other
Senators who are not on the Judiciary Committee. From what I
just heard from Senator Feinstein, there may be some overlaps
in our approaches, and I would be happy to work with her.
I would like to focus my questions on the subject of
transparency. Mr. Litt, in the weeks after Mr. Snowden's leaks,
the Office of the Director of National Intelligence decided to
declassify the fact that, in 2012, only 300 queries were run on
the database of telephone records compiled under Section 215 of
the PATRIOT Act. Can you tell me why the ODNI decided to
declassify that fact?
Mr. Litt. So, first, to be clear, what was declassified was
the fact that there were fewer than 300 telephone numbers
approved for queries. There can be more than one query based on
the same telephone number if, for example, over time you want
to check and see whether there have been any additional
communications. So the number that was declassified was the
number of selectors as to which reasonable, articulable
suspicion had been established so that they could be the basis
for a query.
Senator Franken. Why did you decide to declassify the fact,
and then?
Mr. Litt. You know, what we are doing is we are looking at
all of the information surrounding these programs, at what has
already been revealed, because fundamentally these programs
were classified in toto to begin with because of the feeling
that revealing our capabilities would give our adversaries an
edge in how to avoid those capabilities. Once the fact of the
program became public, we began to look at all the details
surrounding the program, such as the orders that we have
released today and the number you mentioned there, and we are
making an assessment as to each one of them as to whether it is
in the public interest to release that particular fact that has
previously been classified.
Senator Franken. I think that I do not want the public to
take our word for it always, and I think there is a balance
here, and transparency is part of that balance. And I do not
want a situation where the Government is transparent only when
it is convenient for the Government. About an hour ago, ODNI
declassified a FISA Court order under Section 215. That is a
good thing. But ODNI has known for weeks that this hearing was
coming, and yet ODNI releases material just a few minutes
before the hearing began.
You know, again, it is a step forward, but you get the
feeling, when it is ad hoc transparency, that is not--that does
not engender trust, I do not think.
Mr. Litt. I could not agree with you more. I think we have
an obligation to go through and look at the bad as well as the
good and declassify what can be declassified without danger. We
did actually have a discussion yesterday within the executive
branch about whether we should release these documents this
morning or not, because it is generally not a good idea to
release things on the morning of a hearing. And I think we came
to the conclusion that once we have made the determination that
the documents should be declassified, there was no
justification for holding them up any longer. And so that was--
--
Senator Franken. Did you just start thinking about that
decision like yesterday?
Mr. Litt. No, but it----
Senator Franken. When did you--I mean, you have known this
for a long time. You might have been--you might have thought
about this weeks ago and said, you know, maybe not the day of.
Mr. Litt. We have been thinking about this for some time,
and we have been processing these as quickly as we can. You
will note that the documents that were released contain some
redactions of information that remains classified.
Senator Franken. Of course.
Mr. Litt. It is a rather time-consuming interagency process
to reach consensus on what can safely be released.
Senator Franken. Well, my time is up, but I think we should
create a strong permanent set of public reporting requirements
that will empower the public to reach their own conclusions
about the merits of these programs, and that is what the bill I
am working on would accomplish. Again, I would love to work
with Senator Feinstein and, Mr. Litt, I would love if you would
work with me to make sure we get the reporting requirements
right as we move forward with the bill. Would you do that?
Mr. Litt. Absolutely. We would be glad to do that, sir.
Senator Franken. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Incidentally, we are going to go next to
Senator Flake, but I do want to compliment all four of the
witnesses who are here for their candor, and I might want to
single out General Inglis--or ``Mr. Inglis'' I guess you go by
now. And I have been advised and I understand from others that
you have always been very direct, very clear, very
straightforward. Often that is in classified sessions, but you
have been the same way in open session, and I appreciate that.
Senator Flake.
Senator Flake. Thank you, Mr. Chairman, and thank you, and
I am sorry I was not here to hear your testimony. I know that
you have all noted in your written testimony that there are
significant checks in the FISA system. Do you believe that
there are insufficient checks to outweigh the concerns that
some have about the appointment of an independent counsel? If
you have touched on this in earlier questions, I apologize,
but, General Cole, you mentioned that with regard to an
independent counsel, do you think that there--in the second
panel, Mr. Baker raises some issues and problems with
independent counsel. Can you give me your thoughts on whether
you think that is needed or not?
Mr. Cole. Certainly, Senator. This is a topic that is being
discussed both in the administration and in the Congress as one
avenue that might be available. Traditionally, when you issue
search warrants, when you issue wiretaps and things like that,
in the criminal law you do not have an adversary process that
takes place. There is not somebody on the other side. So there
is a legal tradition that the way we have been doing it is
certainly one that we have done in other contexts.
We also have the Court that is involved, and that is
unusual, as Mr. Litt had pointed out, particularly in a foreign
intelligence context, to have the courts involved at all.
But this is something that I think we are open to having
discussions about as to what the utility would be, what the
role would be, how it would work. The devil can many times be
in the details, but we think all of these things are worth
discussing to figure out how to make this the best program it
can be.
Senator Flake. If there were an independent counsel
involved, can you foresee problems in terms of timeliness to
have a lawyer staff cleared in time to review the sensitive
information? If anybody else wants to address that as well.
Mr. Cole. I will just start. It may be a little bit, but
the Court pushes back a lot itself, and there is an enormous
process that takes place with the Court itself to make sure
that we have satisfied all the requirements under the law and
under the Constitution. So if there is somebody on the other
side doing it, I would imagine they would be doing the same
thing on roughly the same schedule.
Mr. Litt. If I can just add to that, there is a letter that
the Chief Judge of the Foreign Intelligence Surveillance Court
has written to the Chairman that I think is available on the
Internet that outlines in some detail the procedures that the
Court follows and I think gives a good sense for the care and
thoroughness that the FISA Court exercises today.
Senator Flake. There has been some criticism in that the
process that we have for the selection of these judges may lead
to more Republican judges being appointed than Democratic--or
more Republicans appointing judges than Democrats appointing
judges. Do you sense or see any difference in your experience,
all of you, with--is that an issue that somebody ought to be
concerned about? Or have you seen any difference in decisions
rendered?
Mr. Cole. From my experience I have not seen any decisions
of the judges or judges in there being guided by the law and
not necessarily by politics. But that is certainly a topic we
would leave to the sound discretion of the Congress.
Senator Flake. Any other thoughts from anybody else? Do you
see any problems with that process, selection of judges? Mr.
Litt.
Mr. Litt. No, I was just going to say it is very hard to
tell how another judge would have rendered a decision because
you only have the one judge rendering the decision.
Senator Flake. All right. Thank you, Mr. Chairman.
Chairman Leahy. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
I am a liberal arts lawyer. I took some math courses, but
it has been a long time ago, so I am going to ask the
panelists, maybe Mr. Litt, Mr. Inglis, or whoever, to help me
do some math here.
In 2012, there were 300 queries that resulted in a search
of records, and we are told that there were three hops. In
other words, if I was the subject matter of this search and I
called Senator Feinstein, they would accumulate all of the
records of my telephone calls to her and others, and then all
of the records of Senator Feinstein's telephone calls, which
may have included Chairman Leahy, and now you have included all
of his records as well.
Mr. Jaffer of the ACLU will testify, at least speculate
later, that if I had an average of 40 contacts, that would mean
that for my name, my query, you would accumulate 2 million
phone records--2 million for that one inquiry. Now multiply
that in the year 2012 by 300. So we are talking about 600
million phone records. Now multiply that times 7 years.
So what has been described as a discrete program to go
after people who would cause us harm, when you look at the
reach of this program, it envelops a substantial number of
Americans.
So can somebody help me with the math here, if I have
missed something along the way or perhaps should minimize that
number?
Mr. Inglis. Sir, if I could start, and apologizing for the
format, the unclassified format, I will be discreet in my
remarks but happy to follow up in any detail that you would
prefer, either here or at NSA.
First and foremost, the analysts are charged to provide
information that is truly useful to the Federal Bureau of
Investigation, and so in that regard they try to be judicious
about choosing when to do a second hop or under the Court's
authorization a third hop. Those are not always exercised. They
do not always exercise a second hop for all numbers that might
be pointed to by the first hop. And so while theoretically 40
times 40 times 40 gets you to a large number, that is not
typically what takes place.
If an analyst were to see, for example, at the second hop
that there are very significant numbers associated with one of
those numbers, they would have to come to some deduction as to
what that means. That could be that what you have kind of
glommed onto is a pizza delivery man. You do not want to pursue
that. That is not useful.
If on that second hop you see that that has hopped to a
foreign number already known to the intelligence community
because it is a known terrorist, you would want to make the
third hop to understand what is beyond that.
Senator Durbin. I understand that part of it where you are
trying not to waste the time or resources of our Government in
protecting our Nation?
Mr. Inglis. Yes, sir.
Senator Durbin. But the potential reach of this, when we
say 300, goes way beyond 300.
Mr. Inglis. So I think that is a very important question.
We have to compare the theory to the practice. We try to be
very, very judicious in the use of this very narrowly focused
authority. And so the reason that we declassified the numbers
is to show that we are, in fact, judicious. Less than 300 times
did we approve a query for selection--or a selector for query
in 2012, and provided less than 500 numbers in 12 reports to
the FBI in all of 2012.
Mr. Litt. If I can just add one thing to that, it is
important to remember that all that we are getting out of this
is numbers--nobody's name, nobody's address, the content of no
communications. These are all--this is nothing but a tool to
try to identify telephone numbers that warrant further inquiry.
Senator Durbin. I understand that. And here is the point,
that I have offered an amendment before this Committee which
garnered a grand total of four votes a few years ago on this
very subject because most of the members were not aware of this
program, the 215 program and its detail. I knew a little bit
more than some, but obviously did not know as much as I am
learning today. And there was a genuine concern today
expressed. At that time because of the limited knowledge of the
members, I got four votes.
So here is the question I get down to, and it is asked over
and over again. If my cell phone is in area code 217, which it
is, and I am a suspect, I certainly think it is appropriate and
I encourage our Government to find out who I am talking to.
That is important. I still cannot get to the point of requiring
every person with a 217 area code to have their records
collected in terms of their telephone conversations.
Now multiply that times every area code across America, and
look at the potential reach. It seems to me that what is being
described as a narrow program is really a very broad program in
terms of the metadata collection on the front end. What I would
like to ask--people have said, I have heard it from members of
this panel, you know, we have saved lives with this. The 215
program has saved lives, stopped terrorism. Good. That is what
we want our Government to do.
Could you have also saved the same number of lives and had
the same impact if, knowing my telephone number as a suspect,
you could search my records as opposed to collecting everyone's
records in my area code?
Mr. Inglis. So if I could go back to a case in point,
perhaps that might be the best way to tease this out. I think
that is a great question. The Basaaly Moalin case, what we knew
at the time when we made that query was we knew a number that
we had reasonable suspicion was affiliated with a terrorist
group plotting against the homeland. That number was in
Somalia. It was associated with Al-Shabaab. We had reasonable
suspicion it was associated with something in the United
States. We had no idea what it might have been associated with,
and so we need to do a query. We did not know whether it would
be associated with a 217 area code or a 303 area code, what of
the grand set of possibilities was it associated with.
In order to find the needle that matched up against that
number, we needed the haystack. That is what the premise is in
this case. And in that point, if just before somebody had made
that query you had said this is going to connect to a number in
San Diego, that would have been as surprising as if you had
said that number is connected to someplace in Yemen.
Senator Durbin. But, Mr. Inglis, I guess what it gets down
to is this: Once establishing that number with Al-Shabaab, this
operative from Al-Shabaab, you could certainly go after that
person's telephone records and all of the contacts that that
person has made. The basic question we are faced with is: Do
you need to collect 5 years' worth of data on everyone in
America and their telephone records so that the haystack, which
is pretty big----
Mr. Inglis. That is a fair question. So the question would
be: Is it enough to look prospectively, in the future, right,
at that particular number? It may well be that the plotting you
are looking for occurred in the past. And if you do not have
that person's records in the past, then you cannot determine--
--
Senator Durbin. And a point that has been raised
repeatedly, if we required the phone companies to retain the
records for 5 years----
Mr. Inglis. That is a very fair point, and that is
possible.
Senator Durbin. It would not be in the grasp of the
Government, but accessed by the Government.
Mr. Inglis. I agree, sir.
Senator Durbin. Which serves the same purpose, does it not?
Mr. Inglis. I agree. But under the current legal framing,
the phone companies are not required to retain that for the
benefit of the Government.
Senator Durbin. How hard would that be?
Mr. Inglis. I think it would require a legal change. I do
not think that is hard.
Senator Durbin. I do not think so either.
Mr. Inglis. I think that you can get there from here. You
have to then think about the rest of the attributes that are
necessary to make this a useful venture.
Senator Durbin. Senator Feinstein said: ``Ask him about the
expense.''
Mr. Inglis. I would say in a classified session I could
give you chapter and verse on the expense. The expenses are
different depending upon whether you choose the current
implementation or you choose an implementation where you leave
it at the providers. The Government, if it requires the
providers to retain those records, should bear that expense.
Senator Durbin. Thank you.
Chairman Leahy. Senator Lee.
Senator Lee. Thank you, Mr. Chairman.
As I understand it, the NSA's collection of metadata, the
kind of metadata that we have been discussing today, is
accomplished pursuant to Section 215 of the PATRIOT Act. Now,
Section 215(b)(2)(A) of the PATRIOT Act places an important
limitation on that collection in that it limits the
Government's ability to collect that metadata to circumstances
where the data in question is ``relevant to an authorized
investigation.''
At some point--you know, relevance is a concept that is
difficult to define in the abstract. It is a somewhat fluid
concept, and it is one of those things that some jurist might
say, ``I know it when I see it, but I struggle to define it.''
Yet regardless of how difficult it might be to define in
the abstract what relevance is, don't you think we have left
the station of relevance long before we get to the point of
collecting metadata on potentially 300 million Americans and
their cell phone usage? How can one get one's mind around the
concept of that volume of information, metadata or otherwise,
all being relevant to an ongoing investigation?
Mr. Cole. Well, Senator, Mr. Litt--and he can chime in--had
noted a little bit earlier how broad, as you noted yourself,
the concept of relevance is in civil discovery, in many
different kinds of legal contexts. It can be things that will
lead you to things that you need as a concept for relevance.
Senator Lee. Right. I understand Mr. Litt's very broad
conception of relevance, and as he recently explained in his
comments at the Brookings Institution. But I assure you, as a
recovering lawyer myself, there is no context in civil
discovery or otherwise in which one may define ``relevance''
broadly enough to take in information regarding each and every
single American who owns a telephone.
Mr. Cole. The answer I would give to that, Senator, is that
we are not really accessing or getting into all of that
metadata that is stored in that database. We do not actually
get to roam around in it. We do not get to look at it to our
heart's content and then say, well, this is relevant and that
is relevant, so let us take that.
You have to look at it in the context of the primary order
which was declassified and issued today that says the only way
you can access it is if you have reasonable, articulable
suspicion that the number you are going to query off of is, in
fact, related to specific terrorist groups. And that has to be
documented. And if you do not have that, you cannot get into
this.
So the surveillance concept I think is very important here.
You cannot surveil this without that gate being checked
through.
Senator Lee. And that gate is not controlled by a warrant.
I mean, if you want to access that, you do not have to go to
court to get a warrant to access that. Those are controlled by
internal procedures, correct?
Mr. Cole. That is correct. But they are controlled by the
Court order, and they are controlled by compliance audits that
are done both by the executive branch and the Court looking at
how it is implemented on a periodic basis.
Senator Lee. Okay. Mr. Litt, do you have something to add?
Mr. Litt. Yes, just very briefly. I just want to make clear
that the standard of relevance that I articulated in the speech
is not mine alone. This is one that has been approved by the
judges of the FISA Court and was known to members of this
Committee and the Intelligence Committee at the time that the
Section 215 authority was renewed.
Senator Lee. Well, I understand that. I understand that,
and that has been part of the problem we have had, is that
until recently most people did not have any idea about those,
and we have significant constraints that limited our ability to
explain why some of us had concerns with the PATRIOT Act, why
some of us on both sides of the aisle voted against
reauthorizing the PATRIOT Act. We were unable to speak about
this publicly because we have secret procedures being
undertaken pursuant to secret law, and it has been a bit of a
problem.
Now, what would you say, then, getting back to you, Mr.
Cole, to my constituents? I understand what you are saying,
that, ``We are collecting all of it but we are not looking at
it. We are collecting it, but we are closing our eyes, so do
not worry about it.'' What would you say to my constituents who
say, ``I do not want the Government having that information. It
is not the Government's information.'' It still does not make
it relevant under the law. It still does not meet what many of
my constituents believe to be well within their reasonable
expectation of privacy for the Government to collect that much
information, potentially information about 300 million
Americans.
Mr. Cole. Well, I would say two things. First of all, we
have had 34 separate times a court say that it does meet the
standard of relevance, to have it all and then have the
restrictions. But the further thing that I would say, which I
think is very important, is what we are doing here today, which
is it is worth having a debate about is there a better way to
do it. It is worth having a debate about where we are going to
strike that balance between security for the Nation and making
sure that people's privacy and civil liberty rights are being
honored. And that is a tough balance to find, but it is a
balance worth talking about, and it is the process that we are
welcoming and engaging in right now.
Senator Lee. Okay. Thank you. I see my time has expired. I
just want to comment that I appreciate your insight on this. I
do think it is worth discussing publicly, and I think it is
also something that we need to consider from a constitutional
standpoint. We have been relying on a 34-year-old Supreme Court
case, Smith v. Maryland, to get at this idea that metadata is
somehow beyond the reach of the Fourth Amendment. But we have
to remember that Smith did not involve collection on hundreds
of millions of Americans. It involved collection on a single
target. It involved collection in a manner that is completely
archaic by today's standards and that by today's standards
would involve a minuscule amount of information.
I think at some point when you collect that much data on
that many people--whether it is that much data on one person,
that might create some problem. That much data on hundreds of
millions of people creates an even bigger problem and one that
I think was not considered by the Supreme Court of the United
States in Maryland v. Smith----
Chairman Leahy. Thank you.
Senator Lee [continuing]. One that we need to revisit.
Thank you, Chairman.
Chairman Leahy. Thank you, Senator Lee.
Senator Whitehouse, again, showing the expertise here, you
served both on this Committee and the Intelligence Committee. I
appreciate you being here.
Senator Whitehouse. Thank you, Chairman.
Mr. Cole, you just said it is worth having a debate on
these issues, and I think you are right about that. But I also
hope that the executive branch takes a lesson from this
experience about the value of classification or what I would
consider overclassification. I have seen this over and over
now. When we were fighting with the Bush administration about
the torture program, the executive branch got to tell its side
of the story because the executive branch were the
declassifiers, and we were stuck with facts that we knew that
blew up the argument that was being made by the executive
branch, but that we could not articulate because they were
classified.
We have seen it on cyber where so much of the American
public is unaware of the cyber threat that we are facing. Now,
thankfully, we are becoming more aware, but for a long time we
were just in the dark about what was going on because in the
private sector companies did not want to talk about it for fear
of aggravating their regulators, their consumers, their
clients, even giving their competitors advantage, and the
Government just wildly overclassified everything.
Now we have, I think, a terrific article that Senator
Feinstein wrote. We have, I think, very good testimony by Bob
Mueller. We have a lot of good information out there that helps
the American public understand these programs. But it all came
out late. It all came out in response to a leaker. There was no
organized plan for how we rationally declassify this so that
the American people can participate in the debate.
I think there is an executive branch reaction toward
classification. I think that reaction is in part because of the
advantage it gives the executive branch relative to the
legislative branch, which cannot declassify. And I think over
and over again we have found that, looking back, we are worse
off for that effort in the first instance.
So I would really urge you to take a look at this and, you
know, when this thing burst, there is this old saying--I am not
going to get it exactly right, but there is something about the
rumor is all the way across town before the truth could even
get its boots on. You have lived that experience in the last
couple of months. I hope this has an effect on you, because
this is a recurring problem and we really need to be balancing
much more carefully the value of declassification against the
value of classification.
I think you guys are terribly one-sided in favor of
classification, and then something like this comes and, pow,
you are still trying to get your boots on because you never
took the appropriate steps to put news out about this program
that would have avoided, I think, a lot of this. And I would
like to have you have a chance to react to that.
Mr. Cole. I think you make very valid points, Senator
Whitehouse, that these are all topics that we need to debate.
They are not easy topics because they involve, again, that same
balancing--the same balancing that we are trying to do between
national security and civil liberties. And what kinds of
programs we put into place to gain intelligence information is
the same kind of debate we need to have about what is
classified and what is not classified and what secrets we let
out.
If it was easy, we would be having these left and right. I
do not think, at least from what I have seen, that the
executive branch is doing it to disadvantage the legislative
branch, but I think that may be----
Senator Whitehouse. But it does have that effect.
Mr. Cole. It may have that effect, and I would concede
that. I think it is done because people are cautious, and it is
easier to overclassify than to underclassify. It is safer to
overclassify than to underclassify. And now we are having to
get into the hard work of finding just where that line is, and
that is a difficult job to do. But it is worth doing.
Mr. Litt. Senator, could I just add----
Senator Whitehouse. So something like this happens or the
torture program gets exposed or we have a significant cyber
attack, or something happens that shows that that short-term
decision that it was easier to classify was actually the wrong
decision.
Mr. Litt. I just want to add on this--and I know you are
familiar with what I am about to say, but we are having a
public debate now, but that public debate is not without cost.
The information that has been leaked is going to do damage to
our ability to protect the Nation. We are going to lose
capabilities. People are paying attention to this.
The way that typically the Congress, both through the
legislation it passes and through its own internal rules, has
historically sought to achieve the balance between appropriate
oversight of intelligence activities and the need to protect
sources and methods is through primarily the Intelligence
Committees but also some other committees of Congress--this
Committee, the Armed Services Committee, the Appropriations
Committees. And typically that is the forum that has been used
to strike this balance. It may be----
Senator Whitehouse. I get that, and my time has expired, so
let me just jump in and say we all get that. My point is that
the American public is an important part of this debate, and we
would probably be better off if there was not such a strong
instinct in favor of classifying and keeping things classified
and we developed information for the American public in a way
that minimized that intelligence collection loss and allowed us
to have this debate.
Thank you.
Chairman Leahy. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. I want to join
in thanking the Chairman for this hearing and for his
legislative proposal, which I have joined, and to each of you
for your extraordinary contribution to our Nation but also to
the thousands of others in the intelligence community and
special operations who have thwarted and stopped terrorist
threats to this country and which all too often I believe have
been ignored because the efforts to stop them have been so
successful, and the debate, as Mr. Cole has termed it, is one
that is very appropriate in a free society that is trying to
protect itself from terrorism by using search and surveillance,
which have a role, and what we are grappling to do here is to
define how to reconcile the secrecy of search and surveillance,
which necessarily have to be so, with privacy and civil
liberties and all the other constitutional guarantees that make
us unique among the nations in the world and, in fact, the
greatest Nation in the history of the world.
You know, I have been a litigator for close to 40 years. I
have never doubted that the scores of judges that I have
litigated before have a commitment to rights of privacy and all
the constitutional rights. And I have no doubt about the FISA
judges pushing back and having a commitment to the rule of law.
But in appearance, this system is failing, and failing fast, to
maintain the trust and credibility of the American people who
want to be protected from terrorist threats, but at the same
time also protected from the degradation of their
constitutional rights.
So I am introducing a bill that would change the
appointment and selection procedure so that the appearance and
the reality of diversity of view and aggressive protection of
constitutional rights is maintained and enhanced. And I will be
introducing that bill tomorrow that would involve the circuit
court judges on our courts of appeals, chief judges, in the
appointment process, with the continued involvement of the
Chief Justice, and change also the FISA Court of Reviews
selection process.
I have found in my years that one of a judge's worst
nightmares is incompetent counsel, and the reason is,
especially in a criminal trial, that incompetent counsel or
lack of counsel for the defendant means that the record on
appeal is weaker, that the test and clash of litigation is
diminished in quality, and that is the basic principle that I
think should be involved in some way in the FISA Court as well.
And so a second bill that I am proposing is for a special
advocate to be involved not necessarily in the ex parte
proceedings on every single warrant or surveillance or search,
but at some point where there are significant issues of law so
that different sides are presented, challenges are made, and
the judge or panel has the benefit of that contention that is
at the core of our court process. Our courts not only insist on
but thrive on the clash and testing of different points of
view. Whether it is debate on a legal issue or cross-
examination, that is at the essence of our litigation process.
So I think in appearance, if not reality, the current
design of the FISA Court stacks the deck against the protection
of our civil liberties and can be improved and enhanced without
sacrificing either speed or security, because those special
advocates can be cleared beforehand for security purposes, they
can be involved after the fact, if necessary, on appeal in
effect to the FISA Court of Review or to the U.S. Supreme
Court. And I hope--and this is to lead to the question--I hope,
Mr. Cole and Mr. Litt, that you will join in this process of
trying to improve the current FISA Court structure. And I would
like to know whether there is active consideration of changes
in the selection procedure and the involvement of potentially a
special advocate or independent counsel of some kind in this
process.
Mr. Cole. Senator, I think at this point there is active
consideration of a range of issues just to get at the kinds of
things you are talking about, to make sure that the process
works as well as it can, to balance both of those important
issues of national security and civil liberties and privacy,
and to make sure that it is transparent enough so that we
maintain credibility with the American people about this
program.
It is a difficult issue, as we have discussed today for
several hours, to find the right balance. But, yes, it is
definitely something under consideration and active discussion
in the administration.
Senator Blumenthal. Thank you, Mr. Chairman.
Chairman Leahy. Mr. Cole, I have a question. As I
understand it, the Government believes that every single
domestic phone record is relevant to terrorism investigation
and can be obtained using Section 215 of the PATRIOT Act. And I
understand the FISA Court agrees with that interpretation, but
you then place restrictions on how it can be used once you have
collected it. But I do not understand what limits there might
be under this theory. Couldn't you invoke under this--couldn't
you invoke Section 215 to obtain virtually all available
commercial data? If Americans' phone records are relevant, how
about our credit card records, what sites we go on on the
Internet, what we may bookmark, our medical records, if we have
it on the computer, or firearms records, we keep a list of what
firearms we hold? Are all those things available?
Mr. Cole. Well, I think there are two important points
here, Mr. Chairman.
Number one is that the only way the Court finds these
relevant is in the context of the restrictions and in the
context of what it is you are looking for. So you have to take
all of those features of this phone record process into account
of how can it be done, how reasonably can it be done, what is
the need for speed, what is the need to integrate all the
different records that are coming together, and finds only when
you look at that entire mix that this kind of program, with
these restrictions----
Chairman Leahy. I understand----
Mr. Cole. To your question, you would have to make that
same showing for those other kinds of records as to the need
for that breadth and the need for those restrictions.
Chairman Leahy. But if our phone records are relevant, why
wouldn't our credit card records be--wouldn't you like to know
if somebody is buying the fertilizer used in bombs?
Mr. Cole. I may not need to collect everybody's credit card
records in order to do that because, again, these are--we are
not collecting all their phone records so that we can wander
through them. And it is only the phone records that are being
used to look at the connections. If somebody is buying things
that could be used to make bombs, of course, we would like to
know that, but we may not need to do it in this fashion.
Chairman Leahy. Well, Director Clapper said NSA would
notify Congress before obtaining cell phone location
information under this program. Is there any legal impediment
to you expanding the program for cell phone location?
Mr. Cole. I do not believe there would be a legal
impediment, and yesterday the Fifth Circuit issued a ruling
that goes to that issue. But the legal impediments are not the
only issues that you take into account here.
Chairman Leahy. I understand. Well, I want to put several
items in the hearing record:
Written testimony from Mark Zwillinger who represented
Yahoo! in its challenge to a directive received under the
PROTECT America Act; he is one of the few non-Government
lawyers to appear before the FISA Court, so that is important
insight;
A letter from Judge Reggie Walton, presiding judge of the
Foreign Intelligence Surveillance Court, responding to
questions from Senator Grassley and myself;
A letter from a coalition of communications companies and
advocacy groups regarding transparency;
A letter from a coalition of privacy and civil liberties
groups recommending staff--a letter from the Constitution
Project supporting S. 1215, the FISA Accountability and Privacy
Protection Act.
Those will all be placed in the record.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. If there are no further questions for this
panel, and if there are not, I would thank all four of you. I
know you have spent a lot of time preparing for this. I thank
you all for being here. I know you have a lot of other things
you should be doing and can be doing, but thank you for taking
this time.
We will start on the next panel. If we are interrupted by a
vote, we will then stop until 12:30 when Senator Blumenthal has
offered to come back and preside, but we would call up Judge
Carr, James Carr, U.S. District Court for the Northern District
of Ohio; Jameel Jaffer, the deputy legal director, American
Civil Liberties Union; and Stewart Baker, a partner at Steptoe
& Johnson. I thank you all very much.
[Pause.]
Chairman Leahy. I thank the witnesses who are here, and I
apologize in advance if we end up having to recess for a period
of time and come back. But, Judge Carr, why don't we begin with
you, and thank you for coming here.
STATEMENT OF THE HONORABLE JAMES G. CARR, SENIOR JUDGE, U.S.
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, TOLEDO, OHIO
Judge Carr. Thank you, Senator. It is my pleasure to be
here. I served on the Foreign Intelligence Surveillance Court
from 2002 to 2008. I have been a United States district judge
since 1994 and before that a magistrate judge since 1979. I am
the author of a two-volume treatise on the law of electronic
surveillance, which I suspect played a role in the decision to
appoint me to the Court.
I want to make clear, as I hope I did in my brief prepared
remarks, that I am here solely on my own behalf. I am not here
on behalf of the Judicial Conference, the Administrative
Office, the judiciary generally, or the Foreign Intelligence
Surveillance Court. And actually I think why I am here today is
because by coincidence I happened to have an op-ed piece
published a week ago in the New York Times in which I made a
proposal that I am glad to be able to make in front of this
Committee in a somewhat more public fashion.
Chairman Leahy. And that op-ed piece will be made part of
the record.
Judge Carr. Thank you.
[The op-ed appears as a submission for the record.]
Judge Carr. Very simply put, what I propose is that
Congress amend the Foreign Intelligence Surveillance Act simply
to give, sort of officially give the discretion to the
individual judges of the Foreign Intelligence Surveillance
Court, or if they sit en banc, the ability to appoint a
security-cleared attorney to represent the interests of the
public and interject to some extent the adversary process at
the level of the Foreign Intelligence Surveillance Court.
I listened with interest to Senator Blumenthal's suggestion
about an advocate who would become engaged at the level of the
Court of Review. Speaking, again, solely on my own behalf, the
origin of this thought comes from my experience as a member of
that Court for that period.
There were a couple of occasions--I cannot count them but
fewer than the fingers on one hand, I am sure--in which I felt
as a district judge that it would have been useful, when the
Government proposed some new program some new method or means
of acquisition, that it would have been useful to have somebody
speak in opposition to the request and to hear the other side.
That would, it seems to me, accomplish two things, and if that
discretion were available to members of the Court, particularly
when issues arose under Rule 11 of the current Rules of
Procedure, which require that the Government notify the judge
when something new or novel is being proposed. That is what
they did when we were there, and that was always very useful.
But in any event, I think my proposal would have two very
beneficial consequences.
One, as I believe Senator Blumenthal already alluded to, it
would provide us with the opportunity as judges to reach more
informed decisions, because we would have heard two points of
view. That is what we do day in and day out in our chambers and
in our courtrooms. We are accustomed to that, and we are
comfortable with that.
Second, it would create a mechanism which I think is very
important for in instances when the Government prevails, in
which the Foreign Intelligence Surveillance Court judge
approves the new and novel request, because there was a lawyer
engaged at the outset, that lawyer could seek review before the
Foreign Intelligence Surveillance Court of Review and in turn
before the U.S. Supreme Court.
Today, of course, only the Government can appeal, and the
Government has done so I believe on a couple of occasions. I am
familiar with one. But there was nobody there on behalf of the
other side, as it were. And as I say, I think that my proposal
is fairly simple, straightforward, economical, and I think it
would be very useful.
Thank you for hearing me out, and I welcome your questions
as to what I have to say.
[The prepared statement of Judge Carr appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Judge. And I should
note you were on the FISA Court from 2002 to 2008.
Judge Carr. Right.
Chairman Leahy. I believe Chief Justice Rehnquist, a part-
time Vermonter, rest his soul, was the one who appointed you.
Jameel Jaffer is the deputy legal director at the American
Civil Liberties Union, director of the ACLU's Center for
Democracy, currently counsel to the plaintiffs in ACLU v.
Clapper, challenging the NSA's phone records program. He has
litigated several cases concerning the PATRIOT Act and FISA
Amendments Act.
Please go ahead.
STATEMENT OF JAMEEL JAFFER, DEPUTY LEGAL DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, NEW YORK, NEW YORK
Mr. Jaffer. Thanks. Thank you for the invitation to
testify.
Over the last 2 months, it has become clear that the NSA is
engaged in far-reaching, intrusive, and unlawful surveillance
of Americans' telephone calls and electronic communications.
The surveillance programs we are talking about this morning are
the product of both defects in the law and defects in the
current oversight system. FISA affords the Government sweeping
power to monitor the communications of innocent people.
Excessive secrecy has made congressional oversight difficult
and public oversight impossible. Intelligence officials have
repeatedly misled the public, Congress, and the courts about
the nature and scope of the Government's surveillance
activities. The ordinary federal courts have improperly used
procedural doctrines to place the NSA's activities beyond the
reach of the Constitution. And structural features of the FISA
Court have prevented that Court from serving as an effective
guardian of individual rights.
Surveillance supposedly undertaken to protect our democracy
now presents a threat to it. It is not simply that this
surveillance has dramatic implications for individual privacy,
though plainly it does. Pervasive surveillance is also
poisonous for free speech and free association. People who know
the Government could be monitoring their every move, their
every phone call, or their every Google search will comport
themselves differently. They will hesitate before visiting
controversial websites. They will hesitate before joining
controversial advocacy groups. And they will hesitate before
exercising rights that the Constitution guarantees.
Now, individually those hesitations may appear to be
inconsequential, but the accumulation of those hesitations over
time will alter the nature of our democracy. It will alter
citizens' relationship to one another, and it will alter their
relationship to their Government. That much is clear from the
history of many other countries. And it is what the Church
Committee warned of more than 30 years ago. That warning should
have even more resonance today because in recent decades the
intelligence agencies' resources have grown, statutory and
constitutional limitations have been steadily eroded, and the
technology of surveillance has become exponentially more
powerful.
Because the problem Congress confronts today has many
roots, there is no single solution to it. But should take
certain steps right away.
First, it should amend FISA to prohibit ``dragnet''
monitoring of Americans' communications. Amendments of that
kind should be made to the FISA Amendments Act, to FISA's so-
called business records provision--that is, Section 215--and to
the national security letter authorities.
Second, Congress should end the unnecessary and corrosive
secrecy that has obstructed congressional and public oversight.
It should require the Government to publish basic statistical
information about the Government's use of foreign intelligence
authorities. It should ensure that the gag orders associated
with national security letters are limited in scope and
duration and imposed only when absolutely necessary. And it
should require the publication of FISA Court opinions that
evaluate the meaning, scope, or constitutionality of the
foreign intelligence laws.
Finally, Congress should ensure that the Government's
surveillance activities are subject to meaningful judicial
review. It should clarify by statute the circumstances in which
individuals can challenge Government surveillance in ordinary
federal courts. It should provide for open and adversarial
proceedings in the FISC, in the FISA Court, when the
Government's surveillance applications raise those kinds of
novel issues of statutory or constitutional interpretation. And
it should enact legislation to ensure that the state secrets
privilege is not used to place the Government's surveillance
activities beyond the reach of the courts.
Thank you again for the opportunity to testify.
[The prepared statement of Mr. Jaffer appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Mr. Baker, you are a partner, I understand, in the law firm
of Steptoe & Johnson, but you were originally general counsel
of the National Security Agency. You were the first Assistant
Secretary for Policy at the Department of Homeland Security. We
are happy to have you here, sir. Please go ahead.
STATEMENT OF STEWART A. BAKER, PARTNER, STEPTOE & JOHNSON LLP,
WASHINGTON, DC
Mr. Baker. Thank you, Mr. Chairman. It is a pleasure to
appear before you and the other members of the Committee again.
Just two points about this program I think are important to
begin with.
First, the kind of information that is being gathered
here--phone numbers, phone records, billing records, in
essence--is the sort of information for which a million
subpoenas a year are served by law enforcement on phone
companies today. This is not data that is kept out of the hands
of Government by existing procedures and not the kind of data
that has been abused in obvious ways since they have been doing
this since the beginning of billing records almost a century
ago. So this is not extraordinarily sensitive information.
And neither is this an unchecked program. I think, having
looked at the order that was declassified this morning and
having heard the procedures that have been described in the
past, it is pretty clear that the people who are reviewing
these records are subject to more scrutiny, more checks, more
discipline than any of the other law enforcement agencies that
have subpoenaed a million records from the phone companies each
year.
The problem, obviously, from the discussion here is that
the Government gathered the information and put it in a
database first, and that is an unusual step. The question is:
What could we do other than that? If we leave this with the
phone companies and try to gather the information from the
phone companies, first, they will get rid of this information
when they choose to, when it is no longer of interest to them,
which would be in a matter of months. We have no guarantee it
will be there when we need it. We have no ability to search
across the records of each of those phone companies to do the
kind of analysis that we need to do to find the folks that have
been found with this program.
And, finally, I suppose we could pay them to put it in a
format and keep it for a period of time that we thought was
necessary to run this program, but then you have created a
database that every divorce lawyer in America is going to say,
``Well, that is AT&T's data. I am just going to subpoena it.''
This is not something that we really want to do. Who is going
to search it? Is the phone company going to search it? Are we
going to ask China Mobile to do searches for national security
targets on the data that they are storing? Or are we going to
give the Government access to the servers? Which is, of course,
what caused the flap over the 702 program in the first place.
So I think there are real problems with leaving this in the
hands of the private companies, and that is why as a practical
matter the Government chose the route that it did.
The other problem obviously is that this has been kept
secret, and I have to say the fact is--and I have spent a
lifetime doing this--you cannot do intelligence in public
because the targets are the most interested in how you do it
and what the limitations you have imposed on yourself may be.
And, therefore, disclosing the limitations, arguing about
exactly how we are going to do this reveals to the people we
are trying to gather intelligence on, who in many cases are
trying to kill us, exactly what it is that we are trying to do.
So there is a big cost to doing this in public and to having
the kinds of disclosures that we are having.
Last thought, and I have heard Senator Blumenthal's
proposal and Judge Carr's proposal. I have to express some
doubts about the idea of appointing a counsel from outside the
Government to represent--I do not know--well, that is the first
question. Who or what is this person supposed to be
representing? Are they representing the terrorists? Are they
representing the Court? Are they representing some abstract
interest in civil liberties? Or are we just going to let them
decide?
You know, we got rid of the independent counsel law
precisely because we were uneasy about having private parties
just make up their own public policy without any check from
political decisionmakers or without any client. And I fear we
are getting into the same situation if we start appointing
counsel to represent something in the context of these cases.
I will stop there and be glad to answer questions.
[The prepared statement of Mr. Baker appears as a
submission for the record.]
Chairman Leahy. Thank you, and we are going to wrap up
because the vote is going to start. But, Judge Carr, what about
that? Your proposal was not to have counsel in every single
case but where there were special legal issues raised. Is that
correct?
Judge Carr. Absolutely. It would be a probably very
infrequently invoked opportunity that I am asking you to put in
the hands of the individual judges when they encounter new and
novel questions.
Chairman Leahy. Thank you.
Judge Carr. And if I may speak to the issue of who is the
client, obviously there is no client in the conventional sense.
This is, admittedly, an unorthodox procedure. In the op-ed and
my remarks, I tried to indicate why it is important, even
though we do not have it in Title III applications or search
warrants.
I think ultimately that the individual represents--that
lawyer that I am talking about, precleared by security, set to
go--would represent the interests of the public generally in
seeing to it that the balance between constitutional rights,
the Fourth Amendment, and the President's authority to conduct
our foreign affairs is maintained and upheld and not tilted one
way or the other. And to some extent, I would hope that if this
process were in place, it would enhance public confidence in
the results reached, regardless of what they were, and
particularly those when they favored the Government, because
the public would know somebody was in there speaking on its
behalf generally and broadly but in opposition to the
Government's request.
Chairman Leahy. Thank you very much.
Senator Blumenthal, I am going to turn it over to you, and
then when the vote starts, we can recess. I thank you very
much.
Senator Blumenthal [presiding]. Thank you, Mr. Chairman. I
think that the proposal that I will be making in my legislation
is very similar to the suggestion you have made, and I want to
thank, Judge Carr, for the thought that you and Judge Robertson
have devoted to this subject and the very insightful ideas that
you have suggested. And there are other instances, as we all
know as lawyers, where the court essentially appoints counsel
from time to time in both civil and criminal proceedings to
represent, in essence, the public interest or some perhaps non-
identifiable individual who might at some point in the future
have an interest in the proceedings. And, indeed, in this
instance what I proposed is an Office of Special Advocate whose
attorneys would be precleared and whose security credentials
would be on a part with, in effect, the prosecutors or the
Government, and on those novel or significant issues of law
that arise from time to time could represent in essence an
opposing point of view, a different side, as Judge Robertson
has put it. The basic idea is that judges are accustomed to
hearing two sides of an argument, as you have articulated so
well.
So I think some of the practical objections are easily
addressed, and what I would like to ask you is whether there
are, in fact, significant and novel issues of law that do arise
from time to time where you think either before the FISA Court
or on review ultimately the development of the law would be
enhanced by having an opposing point of view represented.
Judge Carr. I do, and I think to some extent you can look
at Rule 11 of the Foreign Intelligence Surveillance Court Rules
of Procedure, which requires the Government to call the judge's
attention to something that is new and novel. So you already
have in place sort of a flagging mechanism, and that actually
codified the way things worked in any event when I was a member
of the Court. The Government really was an honest broker and
said, ``Judge, looking at paragraph 73 to 78, that is something
you have not seen before.'' And there were times when that
happened, when simply to hear another side, I wished or hoped
or desired that there is somebody else picking up and giving me
a different view.
Let me say, Senator, I find your proposal interesting and
very worthwhile. I would only suggest bring it down to the
level of the FISC itself. In other words, do not wait for an
appeal because that way you will have a fully developed record,
the agencies would have been laid out, the judge would have
reached hopefully a reasoned and informed decision, and written
an opinion with reasons that then whoever is unhappy with it
can be taken for appellate review. That is the way it works
normally. That is the way it should work in the foreign
intelligence surveillance context.
Senator Blumenthal. And to some extent, you have already
anticipated my proposal because it would, in fact, enable
representation of two sides in the FISA Court as well as the
Court of Review because, as you well know, a record is
essential often to determining an issue of law simply to
clarify what factual issues are at stake.
And I think the important point for people to understand--
and this really goes to perhaps some of the objections to the
proposal. In the criminal context, when a warrant is issued, it
is almost always ex parte----
Judge Carr. Always.
Senator Blumenthal. Always ex parte, except sometimes in a
grand jury if in very exceptional cases opposing counsel is
present. But then at some point, the question of admissibility
arises to the evidence that is garnered as a result of the
warrant or surveillance or other means of activity by the
Government. And at that point there is a public hearing.
Judge Carr. And also keep in mind, certainly with an
ordinary search, the subject learns immediately, comes home,
the door has been broken, knocked down. But if indicted, he can
file a motion to suppress. Even if not indicted, the subject
can file a motion under Rule 41 for return of property: Give me
my money back, give me my whatever it is back. But there are
mechanisms that are available to question and to raise and to
challenge the legitimacy of what the Government has done. And
that is why I proposed--that is one of the purposes of my
proposal, is to enable the opportunity to test the legitimacy
of what the Government has done.
Day in and day out, something I want to emphasize, the
applications that the Foreign Intelligence Surveillance Court
reviews, they are fact based. They have a very low standard of
probable cause, and properly so, because as another witness
mentioned, or one of the Senators, this represents what I
consider to be a brilliant--the FISA represents a brilliant
compromise reached by the legislative branch in a
constitutionally uncertain area. I mean, where in Article II
does it say that a court has anything to do with the
President's conduct of foreign affairs? On the other hand, the
Fourth Amendment applies to the President. And nobody knows how
far either of those reach, and that is why the FISA is so
useful and I think effective.
Senator Blumenthal. And this proposal, while it might lend
itself to greater transparency, would still keep secret the
FISA Court proceeding at a stage when secrecy is paramount for
the search and surveillance activity. It would simply enable--
and I think you have used the key word--the ``testing'' of the
Government's claim that the surveillance or search is both
legal and necessary.
Judge Carr. Well, actually, if I can say, Senator, we do
not consider--I am speaking in the past tense. I did not
consider and I do not think the judges do consider the
necessity for the surveillance. I think that is quite clear
under the Act. We look at only probable cause, agent of a
foreign government, active on behalf of foreign terrorist-based
organization, that is it. We do not second-guess and say, gee,
how come you are spending money on this instead of that?
Senator Blumenthal. Mr. Baker, let me ask you, does any of
this discussion between Judge Carr and myself allay some of
your concerns?
Mr. Baker. Some of the concerns, yes. Obviously if you have
got a full audience, full office ready to go and you are
focused on the Court of Review where the issues are teed up, it
is easier to justify having a special counsel appointed.
I do have to say that I question the assumption that
creating this office will make people feel better about the
functioning of the Court and the national security apparatus in
general because it will necessarily be secret. And I have
watched as the General Counsel of the National Security Agency
tried to act as an advocate for the public interest, as the
Inspector General of the National Security Agency was put
forward as an advocate for the national interest. As the Office
of Intelligence at the Justice Department said, ``We will
represent the public interest. We are not in bed with the
intelligence community. We will ride herd on them.'' And yet
every time there is a fuss--well, and even the clerks who serve
the FISA Court act as a kind of institutional second voice, and
none of that matters at the end of the day when a scandal of
this sort blows up.
So I question whether people will not simply say, ``Oh,
well, sure, this person was representing the public interest,
but he got his security clearance from the Government, he might
be paid, his staff is paid by the Government. It is really just
a sham.'' So I fear that this will not have the effect that you
are hoping it will.
Senator Blumenthal. Well, hopefully it will improve and
enhance the process, which, at the end of the day, gives people
the trust and credibility in the system. And maybe I should ask
that question of Mr. Jaffer. Would you and others with your
very commendable and admirable commitment to civil rights and
civil liberties be somewhat reassured--I am not saying that you
would give it a gold star necessarily, but would it provide
some reassurance?
Mr. Jaffer. Absolutely. I do think it would provide some
reassurance. I think it is important that there be some form of
adversarial process, especially when these issues raise
questions of constitutional interpretation or statutory
interpretation that are new. And I think that one of the
important roles for the special advocate is to press for
transparency where transparency is appropriate and possible. So
I think it would be a very significant improvement to the
system.
Now, I do not think it is enough. I think it has to be
paired with some other reforms, including reforms relating to
transparency and a narrowing of the substantive standards that
the FISA Court is applying. But I absolutely do think that this
would be a step in the right direction.
Senator Blumenthal. And I would agree with you that some
greater degree of transparency on the orders and opinions so
that the public has some greater access to rulings of law at
the very least, with sensitivity to the need for redacting
details that security may require, as well as--I do not know
whether you were here earlier, but I have a proposal to change
the method of selecting the members of the FISA Court that
would, in essence, give the chief judges of the courts of
appeal a role in designating the individuals so that the Chief
Justice of the U.S. Supreme Court would not be the sole source
of those appointees.
But I think moving in this direction would not only be good
for the credibility of the Court, but good for the ultimate
justice of the outcome and protecting rights and liberties.
Mr. Jaffer. Just on the transparency point, Mr. Baker said
earlier that we cannot expect the Government to do intelligence
in public, and I think that is a fair point. But I think it is
crucial to remember the distinction between law and policy on
one hand and sources and methods on the other. The public has a
right to know what the Government's policies are and what the
legal basis is for those policies. And that is all anyone is
asking for. Nobody is suggesting that the factual basis for the
Government surveillance should be disclosed or that the
surveillance targets' names should be disclosed while the
Government is engaged in the surveillance. The debate is not
about that. The debate is about, should the public know what
the Government's policies are? And I think in a democracy that
should not really be a debate at all.
Judge Carr. Senator, if I may, I was appointed, in effect,
by the chief judge of our circuit, Boris Martin. The way it
worked with me is I was one of the judges appointed to the four
positions created in the PATRIOT Act. Judge Martin had been
well aware of my interest because of the work I had done in
publication with regard to electronic surveillance generally.
It is my understanding the Chief Justice called upon Ralph
Mecham to reach out to propose somebody. It happened to be the
Sixth Circuit's turn apparently, and Judge Martin called me and
said, ``Jim, I got this call from Ralph Mecham. I am forwarding
your name.''
So at least when I was appointed 10 or more years ago, it
seems to me that might be codifying the practice.
Senator Blumenthal. It may be, Judge Carr, but we have no
idea, do we?
Judge Carr. Right.
Senator Blumenthal. Because the process is so secretive and
the effort to formalize what happens behind closed doors or
behind the veils of the Chief Justice's office may enhance some
confidence, at least cannot hurt.
Judge Carr. Well, also, one other point on the issue. A
role for the advocate, however you want to call it, in urging
that portions or complete opinions both of the FISC and the
Court of Review become public, I think that individual could--I
had not thought about that, but I think that individual could
also perform that role in urging the Government to be diligent
and thorough and see to it that, to the extent that anything
can be disclosed, that it is.
Senator Blumenthal. Unfortunately, I have got to--I am
probably the only Senator at this point who has not voted, and
I have to apologetically excuse myself to do so. I think I have
authority to close this hearing.
The record will remain open for 1 week. I want to thank
each of you for being here. Your testimony has been remarkably
helpful and effective, and I will be calling on you again in
the course of my work on this issue personally. I am sorry that
more of my colleagues were not here to hear you themselves, but
I am sure they will review the record of what you had to say.
So thank you very much. This hearing is adjourned.
[Whereupon, at 11:22 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
A P P E N D I X
Additional Material Submitted for the Record
T8671.001
T8671.002
Prepared Statement of Hon. Patrick Leahy
T8671.003
T8671.004
Prepared Statement of James M. Cole
T8671.005
T8671.006
T8671.007
T8671.008
T8671.009
Prepared Statement of John C. Inglis
T8671.010
T8671.011
T8671.012
T8671.013
T8671.014
T8671.015
Prepared Statement of James G. Carr
T8671.016
T8671.017
Prepared Statement of Jameel Jaffer
T8671.018
T8671.019
T8671.020
T8671.021
T8671.022
T8671.023
T8671.024
T8671.025
T8671.026
T8671.027
T8671.028
T8671.029
T8671.030
T8671.031
T8671.032
T8671.033
T8671.034
T8671.035
T8671.036
T8671.037
T8671.038
T8671.039
T8671.040
Prepared Statement of Stewart Baker
T8671.041
T8671.042
T8671.043
T8671.044
T8671.045
T8671.046
T8671.047
T8671.048
T8671.049
T8671.050
T8671.051
T8671.052
T8671.053
T8671.054
T8671.055
T8671.056
Questions submitted by Senator Leahy for James M. Cole
T8671.057
Questions submitted by Senator Leahy for John C. Inglis
T8671.058
T8671.059
Questions submitted by Senator Leahy for Jameel Jaffer
T8671.060
Questions submitted by Senator Grassley for James M. Cole
T8671.061
T8671.062
Questions submitted by Senator Grassley for John C. Inglis
T8671.063
T8671.064
Questions submitted by Senator Grassley for Robert S. Litt
T8671.065
T8671.066
Questions submitted by Senator Grassley for Sean M. Joyce
T8671.067
T8671.068
T8671.069
Questions submitted by Senator Grassley for James G. Carr
T8671.070
Questions submitted by Senator Grassley for Jameel Jaffer
T8671.071
T8671.072
T8671.073
Questions submitted by Senator Grassley for Stewart Baker
T8671.074
T8671.075
T8671.076
Responses of James M. Cole to questions submitted by Senators Leahy and
Grassley
[note: some responses of james m. cole are classified and therefore not
printed as a part of this hearing.]
T8671.077
T8671.078
T8671.079
T8671.080
Responses of John C. Inglis to questions submitted by Senators Leahy
and Grassley
[note: the responses of john c. inglis are classified and therefore not
printed as a part of this hearing.]
Responses of Robert S. Litt to questions submitted by Senator Grassley
T8671.081
Responses of Sean M. Joyce to questions submitted by Senator Grassley
Responses of James G. Carr to questions submitted by Senator Grassley
T8671.086
T8671.087
T8671.088
T8671.089
T8671.090
T8671.091
Responses of Jameel Jaffer to questions submitted by Senators Leahy and
Grassley
T8671.092
T8671.093
T8671.094
T8671.095
T8671.096
T8671.097
T8671.098
T8671.099
T8671.100
T8671.101
T8671.102
T8671.103
Responses of Stewart Baker to questions submitted by Senator Grassley
T8671.104
T8671.105
T8671.106
T8671.107
T8671.108
T8671.109
T8671.110
T8671.111
T8671.112
T8671.113
Miscellaneous Submissions for the Record
T8671.114
T8671.115
T8671.116
T8671.117
T8671.118
T8671.119
T8671.120
T8671.121
T8671.122
T8671.123
T8671.124
T8671.125
T8671.126
T8671.127
T8671.128