Hearing of the House Commitee on the Judiciary. Warrantless Surveillance and the Foreign Intelligence Surveillance Act.

Interview

HEARING OF THE HOUSE COMMITTEE ON THE JUDICIARY
SUBJECT: WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS (PART II)

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Thank you, Mr. Chair. And I thought I'd been here pretty much the whole time.

But let me direct this question to all three of you so as not to have to individualize it. Mr. King, in his questions, referred to -- and in the answers you referred to a nine-week window when there were questions about the legality of some aspects of what was -- what had been done. Can any of you -- are any of the three of you aware of which telecommunications companies continued to allow surveillance during that time period?

MR. POWELL: Nobody who was -- we were operating -- and we have since January under --

REP. WATT: No, my question is, are you aware of any companies that continued to allow surveillance? I guess I'm -- I'm not trying to cut you off, but if the answer is no, then I think that'd be the answer. If the answer is yes, then I'd be happy to --

MR. POWELL: Specifically answer that question?

REP. WATT: -- well, listen to your explanation.

MR. POWELL: Anyone who was providing us assistance was doing so under FISA Court orders. I'm not aware of anyone providing assistance outside of valid FISA Court orders during that window, since they had a gap.

REP. WATT: Are any of you aware of any administration officials who made promises to seek retroactive immunity as part of the FISA revisions to any telecommunications companies to get them to cooperate with the Terrorist Surveillance Program or any other surveillance programs?

MR. POWELL: No promises, but that was included in the bill. It was submitted back in April. It was a part of --

REP. WATT: I understand it was in the bill. I'm --

MR. POWELL: No problem.

REP. WATT: -- I'm asking you whether anybody in the administration, to your knowledge --

MR. POWELL: To my knowledge, no.

REP. WATT: -- made any promises that that would be part of what was being sought to gain their cooperation.

MR. POWELL: There was no need to in the sense that we have always seen that as a very high priority to get that. It was always a high priority. It was in our bill, and it was something that the DNI has always emphasized in his statement, so I don't know --

REP. WATT: Okay. Are you -- are any of the three of you aware of any assurances any member of the administration gave to any telecommunications companies, that they would -- that the administration would seek to dismiss on national security grounds any lawsuits challenging the telecommunications companies' cooperation with any of the surveillance programs?

MR. : I am not aware of any promises like that, no.

REP. WATT: My question was addressed to all three of you.

MR. : I don't know of any assurances. It certainly is the case that when intelligence activities are disclosed in an unauthorized manner, this was the case, that we were going to seek to dismiss -- to protect sources and methods, so it's not a question of assurances or promises. I think everyone knew that was the course that this would be launched on.

MR. : Yeah, I think that's been quite clear from the initial disclosure of the --

REP. WATT: And what specifically can you identify that the telecommunications companies did that is not already covered by the immunities under the FISA program? What is it that we are putting this in the law to protect against, other than the generalized concern that Mr. Wainstein referred to?

MR. : Well, FISA has its own immunity provision. The Protect America Act has an immunity provision.

REP. WATT: That's the point I'm making.

MR. : And this --

REP. WATT: What is it -- what is it that we are seeking to hold them harmless against, other than what FISA already holds them harmless against?

MR. WAINSTEIN: It's -- well, as you know, remember telecommunications companies have been sued around the country for a variety of different alleged types of assistance that they allegedly provided to the government after 9/11 in the government's surveillance efforts and so it would be that range of activities, and a number of them cite the program which has been described as the Terrorist Surveillance Program.

REP. WATT: And you are proposing that we write some language that would absolutely cut off the right to sue or -- I mean, is there some language that -- we're just going to retroactively immunize whatever actions were taken under the provision that you proposed?

MR. WAINSTEIN: Well, the director of National Intelligence proposed a -- one of the provisions submitted in the FISA modernization proposal in April, one of them is retroactive immunity back to 9/11.

REP. WATT: What is it -- I guess, let me ask the question again. What is it that we are immunizing them from, that you are seeking to immunize them from?

MR. MCCONNELL: Alleged cooperation with the community to conduct foreign surveillance. Alleged cooperation with the intelligence community to conduct foreign intelligence.

REP. WATT: How many lawsuits are already out --

MR. MCCONNELL: Sir, I don't know. I don't know.

REP. WATT: And you don't -- I mean, that's -- you don't think that's a relevant consideration?

MR. MCCONNELL: The number?

REP. WATT: Yeah.

MR. MCCONNELL: Well, I'm sure it's relevant. I just don't personally know. I haven't tracked it in that level of detail.

MR. : Sir, I don't have the exact number, but I think it's somewhere in the range of 40 or 50 or so different lawsuits.

REP. WATT: And have you all done an analysis of these lawsuits to determine whether any of them have any justification? That's what you are seeking to have us immunize the government from, right?

MR. : Yes. I --

REP. WATT: Or immunize the telecommunications companies from. Has anybody evaluated them individually to determine whether any of them have merit?

MR. WAINSTEIN: I have not personally, but we have a Civil Division in the Department of Justice that's been working on these cases, and they've gone through the merits of these cases. And they would have done that.

REP. WATT: I yield back, Mr. Chairman. Appreciate it.

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