Hearing of the House Permanent Select Committee on Intelligence Subject: The Foreign Intelligence Surveillance Act and the Protect America Act

Interview

HEARING OF THE HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBJECT: THE FOREIGN INTELLIGENCE SURVEILLANCE ACT AND THE PROTECT AMERICA ACT

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REP. JOHN TIERNEY (D-MA): Thank you, Mr. Chairman.

Mr. Dempsey, I'll stay with you. You're right in front of me on that.

The ranking member seems to be laboring over some misconception that somebody is promoting the concept of getting a warrant for foreign-to-foreign conversations. Have you heard any of the witnesses today mention that that was something that they put forward?

MR. DEMPSEY: No, Congressman. There's long been agreement that foreign-to-foreign should be exempted, and I haven't heard anybody say that foreigners should be entitled to Fourth Amendment rights, either. I'm not saying that.

I think that, you know, we're talking here about a situation -- we used the hypothetical that the ranking member raised, or Mr. Rivkin was discussing, which is if you have a target that -- if you're targeting a person -- you're targeting the schoolteacher and the schoolteacher calls you, should you care if your communications are intercepted? Well, if your communications are intercepted without a warrant, even if you're not the target, you still have a Fourth Amendment right and you have the right to object to that surveillance if the evidence is going to be used against you.

There was an interesting Supreme Court case where the government searched -- was targeting a suspected drug dealer, and they searched his mother's home. They had no -- they weren't trying to investigate or prosecute the mother. Well, it was held that even though the drug deal was the target, his Fourth Amendment rights were not intruded upon. The Fourth Amendment rights that were at stake were the rights of the person who was being searched.

And in this case here, where you have two people being searched -- people on both ends of the communication -- it makes a world of difference whether there's a court order or not. The fact that you're not the target, if you're being intercepted without a court order, the fact that you're not the target makes no difference to the Fourth Amendment analysis. Your rights are being violated, and you have a right to object.

REP. TIERNEY: Do you see any scenario where having the provision for a warrant it somehow limits the amount of collection that could be done? I mean, can't we both have a process that allows for a warrant when it's appropriate and allows for us to get the information when and as we need it?

MR. DEMPSEY: Well, that's an excellent point because the fact is the government cannot listen to everything. It is selecting. It is collecting less than everything.

The question here is: What are the standards by which they pick and choose? And when the rights of Americans are at stake, there should be some judicial oversight of that choice.

At the end of the day, they will end up collecting however much they can process. The question is is how is that focused and how are those decisions made?

REP. TIERNEY: You know, both of the statutes -- the one that the Democratic Party put forward last time and the one, the PAA, that actually passed -- were really looking at the issue not that you need a particularized warrant for a particular person or a particular place. On that, they have both sort of said in some instances maybe what you have to have is a process, all right?

And in that, the question really is whether in choosing -- when the government goes out and decides and choosing from all the foreigners from whom we're going to collect information here do we have a process that's reasonably designed to identify and collect the communications of those whose communications may have foreign intelligence content? All right? So that's really what they're looking at.

I think you said something similar to that if not exactly like that in your written report, Mr. Dempsey.

So who should decide the reasonableness of that process? Shouldn't it be the courts? And if it's not the courts and we leave that to the director of national intelligence and to the attorney general, don't we have the fox watching the hen house? And isn't it less likely that any executive -- forget which party's in office now -- is always going to be very lenient to themselves and see things in a rational way of what they're doing. Isn't that why we have judicial -- prior review of the process in this situation necessary?

MR. DEMPSEY: I think that's right, and I think, you know, good people under pressure cut corners. Good people working under pressure make mistakes. And what we try to do in our democratic system is to create a set of checks and balances so you don't have to ascribe any bad will or any negative motive to the DNI and to the attorney general and to the members of the intelligence community. But we've certainly seen plenty evidence of cutting corners in the past six years.

I think that we want to create that set of checks and balances. And particularly this decision that we're talking about here, of all of the communications that you're going to collect and process, of all the people that you are going to draw into the net, how are you picking and choosing? That process needs to be in some structure that has all three branches involved.

REP. TIERNEY: Thank you very much.

I yield back, Mr. Chairman.

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