Hearing of the Senate Judiciary Committee- Strengthening FISA

Interview

Hearing of the Senate Judiciary Committee - Strengthening FISA

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SEN. BENJAMIN L. CARDIN (D-MD): Thank you, Mr. Chairman. Admiral McConnell, I very much appreciate your service to our country, and I can tell you that we all agree that we need to make sure that our intelligence community can get the information they need protecting the civil liberties of the people in our country. We also agree we need to modernize our laws and gather intelligence information.

But let me just suggest that I have confidence in your administration of the agency, but the laws that we create today is going to go well beyond your term in office, so we need to make sure that we have the right laws in place. I agree with Senator Specter's observations that some of the administrative decisions should be placed in statute in order that we have the protection, and I think that's a good suggestion that was made by Senator Specter.

I appreciated also your analysis of the law in the 1970s. This is not paranoia. In the '50s and '60s, we had serious problems dealing with the civil liberties of the people in this country, and the FISA Court law was developed in order to provide the right balance. And as you pointed out in your testimony, that you agreed with that law at its time but it needs now to be modernized.

Well, I think we still have concerns today. And I just really want you to focus a little bit more on the responsibilities for check and balance in our system. Traditionally in criminal investigations, in the work of the Department of Justice, the courts have been the body that we look to as the check and balance. And yet the bill that was passed in August allows the FISA Court to look at the procedures used in gathering information, but it cannot be set aside unless it's clearly erroneous.

Now, you don't need to be a lawyer to know that's a pretty difficult standard for the court to use to set aside the procedures that have been developed. We are talking about the civil liberties of the people in this country. It seems to me that's a pretty tough standard for the entity, the branch of government that's supposed to be our checks and balance -- in order to get involved and suggest changes, they would have to find that your procedures are clearly erroneous. Your comments on that?

ADM. MCCONNELL: Sir, the target that you're describing is foreign; it's not a U.S. person. So the procedures we're talking about is --

SEN. CARDIN: But it's been pointed out before that in that process, there is very likely at times to be U.S. -- communications with U.S. citizens. So there is the information being gathered potentially involving U.S. citizens.

ADM. MCCONNELL: The procedures in question you're describing are the procedures to determine foreignness -- that's an odd term, but it's, how do we know that the person being is foreign? So it's -- has a foreign context.

As we discussed with minimization, if you are targeting that foreign person in a foreign country, you can't control who they might call; that's where minimization comes in. If the foreign terrorist calls into the United States, what do you do with that call? Since we can't determine ahead of time who they might call -- some say, well, it's easy, just make it foreign to foreign. You can only target one thing at a time. And while the vast majority of the time it's foreign to foreign, in that isolated instance when it might be foreign to U.S., how do you deal with it? And that's the elegant solution that was captured in 1978, and all I'm arguing is return us to 1978.

We had this same debate and situation in '78. When the means of communication was wireless -- the only thing that has changed that it went from wireless to wire, so that's why we found ourselves in this box.

SEN. CARDIN: I guess my point is this: You make a very persuasive argument that to require an individual application to the FISA Court on a case involving a foreign person would be too onerous and be ineffective in getting the information.

So Congress is looking at saying: Okay, rather than the individual case, take the process that you're using to the FISA Court and have more involvement of the FISA Court on the process. I'm not sure we got it right -- in fact, I don't believe we got it right -- in the last bill we passed as to the appropriate balance between the FISA Court and your work on approving the procedures that are used.

I guess my question to you -- do you have any suggestions to us how we could set up a more effective involvement of the FISA Court on the procedures that you are using that will give more comfort that we have in place the appropriate checks and balances without compromising the ability of your agency to go after the individual that you believe you should?

ADM. MCCONNELL: I have no objection to working out the best possible solution, so I'd be happy to work in any way. And I would even suggest perhaps that involve the FISA Court in that discussion, so we can get the right balance between being effective in the foreign intelligence mission and protecting civil liberties.

What I'm worried about is because we've -- we were in a time crunch before, we're in a situation where laws -- words were about to be put in law, which is very difficult to back away from, that would have introduced uncertainty that I feel confident would have inhibited our effectiveness.

So it's -- happy to look at anything. Just let's sit down and examine our -- what do you think that means and what do the 20 lawyers I have working this, that are expert in it -- what do they think and what's the right balance?

SEN. CARDIN: That's a fair enough challenge.

I would just submit that we have a couple of months now before the deadline approaches. And it would be useful if we have a meeting of the minds, if that's useful to try to improve the checks and balance(s) through the FISA Court process. Your suggestions or your attorney's suggestions in that would certainly be a good starting point for us in reviewing that, and it would be helpful if we could get that information to our committee.

ADM. MCCONNELL: All right.

SEN. CARDIN: Thank you, Mr. Chairman.

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