Hearing of the House Committee 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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REP. WILLIAM DELAHUNT (D-MA): Thank you, Mr. Chairman.

And I want to be very clear because there's been some statements which would suggest that there are some that don't hold you, Mr. McConnell, and you, Mr. Wainstein, in the highest regard.

I think the concern that you hear expressed are not ad hominem to you; they're not personal, they're institutional. They're what makes democracy function. Should we trust government? Well, the FISA Act came about because of abuses. All throughout history there have been abuses. America was founded on a theory that executive power ought to be restrained and checked and balanced, and that's what we're about here today. This isn't about working on the margins. This is something very fundamental to American democracy from my perspective. I think that's shared by everybody on the panel. That's why this is a serious hearing.

And let me respectfully take issue with you, Mr. Wainstein, when you describe ample oversight. Ample oversight has not been practiced until recently in this Congress. It just has been nonexistent. We have reasons to be concerned when disclosures are made in The New York Times about the TSP and no member of this panel, despite having questions posed, was informed, Republican or Democrat. So when we talk about oversight, it has been lacking. This is not a kind of protection, particularly when you have a single party in control of both branches of government. You know, divided government probably is, in a democracy, necessary to protect our values and our institutions, but it hasn't existed.

The FBI director appeared before this committee for the first time -- for the first time since he was sworn in I think about two or three months ago. That is not adequate oversight. Do not rely on congressional oversight to serve as a filter for the actions of the executive branch. I'm sure we all would trust you as individuals, but that's not what this is about. You know, we read the newspapers. We understand the deputy attorney general went to the hospital to see a bed-stricken attorney general to debate a significant concern that he had about the functioning of the Department of Justice.

So this is not working on the margins, with all due respect. And Director McConnell, you know, I hear you and I -- you talk about 200 hours and the work and the time that's invested in the preparation of an application for a FISA warrant. Well, is it fair to say that just simply the work that would be done to secure your approval and that of the attorney general would be significant and substantial as well?

MR. MCCONNELL: Sir, the point I was trying to highlight is the fact that the interpretation of the old law was requiring us to get warrants for foreigners located in a foreign country, introduced a series of actions that we just couldn't keep up. So by changing the law, which was done in August, we wouldn't have to go through that process for a foreigner in a foreign country. We can keep up with anything that's done within the confines of the United States. Where it's foreign surveillance, we don't have to have a warrant. So that's a manageable problem.

REP. DELAHUNT: But let me ask you this. I mean, what I'm hearing is it's an issue of resources. You know, I would suggest to you there's a willingness on the part of Congress, I believe, to give you whatever resources are necessary so that you can adequately respond. There is not a single member on this panel that does not want to give you what you need, and at the same time we want to continue to ensure that fundamental freedoms as we know them in an historical context are being protected.

MR. MCCONNELL: Sir, I'm also as concerned as anyone about the fundamental freedoms of protection, and it wasn't a matter of resources; it was just the process to try to do our business. And in the meantime, what I was trying to highlight in my comments to provide context was being required to have a warrant for a foreign target in a foreign country by -- (inaudible) -- of the fact technology changes. That was the issue.

REP. DELAHUNT: Right. My point is, there's no disagreement as to dealing with the issue of technology --

MR. MCCONNELL: All -- all -- all the rest --

REP. DELAHUNT: -- (off mike) -- is unanimous, then.

MR. MCCONNELL: All the rest of that was just an explanation so you could understand --

REP. DELAHUNT: Well -- well -- okay. Well, like I said -- and we're -- everybody's on board in addressing the technological, you know, issues here.

But there have been reports in the newspaper about the number of applications to the FISA Court numbering in the tens of thousands, almost in negligible number. I remember when we were debating these and similar issues maybe a year or two ago. I think there were 15 or 17 that were denied by a FISA Court judge. Again, maybe it's that I'm not on the inside understanding completely the process that you talk about and the work that is necessary, but I dare say that securing a FISA warrant, with all do respect to the FISA Court, is much more perfunctory than I think the impression that you're leaving.

MR. MCCONNELL: Sir, the conditions of the court -- and remember this is foreign intelligence --

REP. DELAHUNT: Right.

MR. MCCONNELL: -- is to demonstrate it's a foreign power or an agent of foreign power.

REP. DELAHUNT: Right.

MR. MCCONNELL: And so the conditions are: external, no warrant; external United States, internal, requires a warrant.

So you wouldn't expect there would be very many turn-downs. The process ensures it's legitimate, it's consistent with the law and so on. But you're only proving one of two things: foreign power --

REP. DELAHUNT: I understand that, but I guess what I'm saying to you is, isn't that -- that is done in the normal course of the work of the intelligence community.

MR. MCCONNELL: Yes, sir, it is.

REP. DELAHUNT: This is not an additional burden.

MR. MCCONNELL: True. It isn't.

REP. DELAHUNT: Therefore, it's an issue of resources.

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