Hearing of the House Select Intelligence Committee - The Foreign Intelligence Surveillance Act

Statement

HEARING OF THE HOUSE SELECT INTELLIGENCE COMMITTEE
SUBJECT: THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

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REP. JOHN TIERNEY (D-MA): Thank you, Mr. Chairman. Mr. Director, I don't think there's been any disagreement from the beginning as to whether or not a warrant is needed for foreign communications between a person in a foreign country and another person in a foreign country non U.S. citizen. There is no warrant required. And many of us have argued consistently that FISA never required a warrant under those situations.

And I know there's been some disagreement on that and the interpretation. I'm going to just read the section of the bill that had been filed by the Democrats last session that deals with the issue of whether or not -- clarifying that matter. I don't want you to respond now, but I would like you to submit to us after the hearing your complete reason why you thought that the following language wasn't clear enough to satisfy your needs to make it certain that no foreign communications required a warrant.

Section 105(a) reads: Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

So if you would be kind enough to just submit to us why you think that's not clear with respect to that issue, I would appreciate it.

Secondly, I think, Mr. Director, you would agree with me, and I think you stated pretty clearly here, Americans and others inside the United States do enjoy a constitutional protection, a right against unreasonable search and seizure or interception of their conversations, is that correct?

ADM. MCCONNELL: Right.

REP. TIERNEY: And it would be unlawful to intercept that communication without a warrant, is that correct?

ADM. MCCONNELL: Yes.

REP. TIERNEY: Then I assume that you agree with me that the original program that the president was operating was, in fact, unlawful.

ADM. MCCONNELL: Sir, that was a debate between the interpretation of Article II and Article I. Some would argue it's lawful. Some would say no. But I can't resolve a Constitutional debate. I'm talking about the framework of FISA.

REP. TIERNEY: Well, moving it forward, we agree that if the government targets an overseas person, a certain percentage of foreign intelligence targets overseas will communicate only with other foreigners overseas. I think that's fair to say, right?

But some of them are going to communicate with individuals in the United States. And some of them -- of those communications are going to pass through the United States. And it may not, at first, be easy to determine if they are being routed to U.S. persons or to foreigners overseas. I think that's the crux of the government's dilemma here, is that right?

ADM. MCCONNELL: That's part of it, yes, sir.

REP. TIERNEY: Okay, now the government's been arguing for the agility and speed, and says it should not need to prepare applications for particularized orders, meaning specific persons or the specific thing to be intercepted, for foreign targets overseas. And that's the issue I think these laws have been trying to deal with.

Still, you would agree with me I think, that when the government listens to both ends of a communication, one in the United States, as it admits it has done, and probably will do, even if inadvertently in the future, it does infringe on the privacy rights of Americans. And the question is whether or not that infringement is reasonable.

ADM. MCCONNELL: Sir, the issue for us is that you can only target one end of a conversation.

REP. TIERNEY: Right.

ADM. MCCONNELL: You can't control who that person might talk to.

REP. TIERNEY: Exactly. So for this purpose, the government has put in some selection filtering methods.

ADM. MCCONNELL: The issue is who you target.

REP. TIERNEY: Right.

ADM. MCCONNELL: If it's foreign or --

REP. TIERNEY: Well, the issue is -- the issue is not who you target because we all ready discussed that. You're going to target foreigners overseas. But sometimes they're going to have communications that have to go through the United States or that are with persons in the United States. So the issue is what are you intercepting?

ADM. MCCONNELL: That's correct. And the old law was that if it touched wire here, we had to have a warrant --

REP. TIERNEY: Well --

ADM. MCCONNELL: -- against the foreign target. That was the issue.

REP. TIERNEY: The issue for some. But Mr. Baker, who I think you'll agree with me is an expert on the legislation and implementation of FISA, at least your General Counsel, Ben Powell, said he was an expert in front of the Judiciary Committee --

ADM. MCCONNELL: He is an expert.

REP. TIERNEY: -- that he is an expert. He indicates to us in his testimony that it wasn't a situation of technology that really was the issue here. And he says that contrary to the history we heard earlier and his disagreement on that, that Congress anticipated the fiber optics and cable usage in overseas conversations when it did FISA back in 1978.

But the real issue is who's the decision maker for authorizing what the selection should be? What justification should be required, and what standard of review the decision maker should apply? How individualized authorizations to conduct surveillance should be? And what role judges should play in this process?

He had testified that in many situations over the years, aggressive and well meaning attorneys throughout the government pushed aggressive interpretations of the law. But the question is to make sure we balance this with reasonableness. The government has these selection and filtering methods.

The question is whether that -- the government's criteria for determining selections and filters result in methods that are likely to ensure that communications that are being intercepted are to or from non U.S. persons overseas, and whether those communications contain foreign intelligence.

Now even that is backing off of the requirement that it be a foreign agent, or an agent of a foreign power; it broadens it out.

But assuming we're going that far on that, these standards are loosened. It's probably more important that we have adequate protections. Is there any reason why that determination of reasonable is whether or not those filtering methods are reasonable, shouldn't be left to a court as opposed to you, sir, as a DNI and the Attorney General.

ADM. MCCONNELL: Sir, they are -- under the law signed in August they are subjected to a court review.

REP. TIERNEY: Well, after the fact.

ADM. MCCONNELL: Well --

REP. TIERNEY: Significantly after the fact, and then only to a standard of clearly erroneous. Which basically means they have to give incredible deference to the administration; not just the usual deference. Is there any reason in your mind why, you know, that could not be subjected to judicial review at a reasonable standard, as opposed to clearly erroneous?

ADM. MCCONNELL: The issue I would object to is submitting it to the court before we can engage in conducting our mission.

REP. TIERNEY: Well, you're already engaged in your mission right now. So if we were going to create a law that would go into effect at a future date, is there any reason why that law to go into a future date, under that system, the judge could not first determine whether or not those selection and filtering processes were reasonable?

ADM. MCCONNELL: I would object to having a court be between us conducting the mission and giving us permission in the way you've describe it in a foreign person -- foreign country. Where it is now, the court will review it, as you mentioned, after the fact of procedures to make sure we're doing it right; we're not violating the law and --

REP. TIERNEY: Well let's back up. Let's have the procedures approved before it goes -- they go into effect.

ADM. MCCONNELL: And then you'll get us in the situation where we were discussing earlier where getting the emergency procedure for --

REP. TIERNEY: But you already have a law in effect right now, all right.

ADM. MCCONNELL: I -- wait, we have a law in effect which changed the hypothetical you're setting up. It wasn't the -- the FISA.

REP. TIERNEY: I'm talking about going forward, all right? But you have a law in effect and you are collecting now.

ADM. MCCONNELL: That's correct.

REP. TIERNEY: All right. So, if going forward, is there any reason why a court couldn't review for future use whether or not your methods are, in fact, reasonable?

ADM. MCCONNELL: The -- what we're targeting changes all of the time. So if you put the court between us and the foreign targets then that --

REP. TIERNEY: We're putting the court that's in a determination of whether or not your selection and filtering methods are reasonable.

ADM. MCCONNELL: Which is in law now.

REP. TIERNEY: Only --

(Cross talk)

REP. TIERNEY: -- it's not reasonable. The standard is clearly erroneous; whether or not your determination was clearly erroneous, which is an entire new standard for matters of 4th Amendment rights.

MR. WAINSTEIN: May I make a quick point on that, sir?

REP. TIERNEY: If I could get the Director's answer to that first, please.

ADM. MCCONNELL: Sir, what we tried to accomplish was having the court look at the procedures in a reasonable way. So that was what the --

REP. TIERNEY: But why did you accomplish not allowing the court to make a determination as to the reasonableness of those selections and filters?

ADM. MCCONNELL: I'm not objecting to that, so long as it's not in advance because our world is very dynamic. So I can't --

REP. TIERNEY: So you have no objection to the court making the review as to whether or not your selection and filtering methods are reasonable?

ADM. MCCONNELL: Are reasonable.

REP. TIERNEY: That's fine. All right.

MR. WAINSTEIN: If I may, sir, just very briefly. The law that you passed requires that. But the standard, as you pointed out, as clearly erroneous. And you said that that's a new standard, it actually is -- that standard is actually in FISA, the original FISA.

REP. TIERNEY: Right, but not in this application, not with respect to whether or not you're looking at these selection and filtering methods. The clearly erroneous standard is a significant departure downward from the Fourth Amendment requirement that searches and warrants be based on reasonableness.

MR. WAINSTEIN: Sure, it's a different animal but, of course, this --

REP. TIERNEY: No, we're not talking about a different animal. We're talking about interception of communications of people in this country who are U.S. citizens. And so the reasonable standard -- there's no reason, as I understand it, and as the director is now saying he has no objection either, that the court look at the for the purposes of reasonableness.

Mr. Director, do you have any objection to the court actually looking afterwards at the reasonableness of the mitigation aspects that are put in play?

ADM. MCCONNELL: A review after the fact, no, as long as it doesn't interfere with our dynamic nature of our --

REP. TIERNEY: And do you have any objection to the Inspector General auditing the performance of the government under this law, or whatever law that might come along, so that it can report to Congress on what has transpired under the act?

ADM. MCCONNELL: The -- I'd have to understand exactly what that means. There are about four levels of review now. So --

REP. TIERNEY: We've got all -- all the hens watching the -- the -- the fox watching the henhouse.

SEN. REYES: If I can interrupt just -- we've got three votes. We're going to have to recess. You're certainly welcome to come back.

REP. TIERNEY: Let me just ask this one question and I'll be done.

REP. REYES: Okay, one -- one last question.

REP. TIERNEY: That is, you know, do you have any objection to the Inspector General's Office doing a review and reporting to Congress on the implementation of this law?

ADM. MCCONNELL: If it was something requested by the Congress as a part of the Congress' duties, that's something you could request. But I think the standard we have now established is sufficient because there are four levels of review.

REP. TIERNEY: What's standard right now is that the executive will watch over the executive and report about what the executive is doing.

ADM. MCCONNELL: No sir, it involves the court and it involves the Congress.

REP. TIERNEY: Well, we can have the discussion as the Chairman wants to leave. But it does not, in any semblance, of a satisfactory manner in my view. Thank you.

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REP. TIERNEY: Thank you.

Director, I'm glad you made that last caveat because in fact, it -- if we have significant interception on a U.S. citizen or person in the United States, then of course you would need a warrant. And I think we all should understand that.

ADM. MCCONNELL: If there's a target, yes, sir.

REP. TIERNEY: You essentially get to the point where he's the target.

ADM. MCCONNELL: If he's a target --

REP. TIERNEY: It's determining when that crossover point is, I think, that has concerned some of us.

You also at one point earlier in your testimony said that there are perhaps billions of data or records --

ADM. MCCONNELL: Transactions.

REP. TIERNEY: -- transactions being done. So when you start with a small percentage, it's a small percentage of those billions that might sort of scoop in some --

ADM. MCCONNELL: Well, it's not -- what I was talking -- there are billions of transactions. We would have some subset of that. And when you work it down, it turns out to be a pretty small number.

REP. TIERNEY: So a small percentage of billions in the subset and that -- it could still be a substantial number. I think that's the problem.

Now earlier this week, we got a letter from -- I think -- we, being the committee, got a letter from Mr. Alex Joel. I understand he's your civil liberties protection officer in your office, is that right?

ADM. MCCONNELL: That's correct, and I think he's with us here. He's sitting here this morning.

REP. TIERNEY: Joel, thank you.

Joel's letter says that -- it lays out the civil liberty and privacy protections that he believes his office is charged with overseeing in the implementation of the new act. Now I indicated earlier that one of my problems is that I don't think it ought to be the DNI's office overseeing the DNI. But set that aside for a second. Mr. Joel's letter states, among other things, that although he doesn't read the PAA to require it, the NSA is still using the minimization procedures that were previously reviewed and approved by the FISA court. Does that strike you as accurate?

ADM. MCCONNELL: Well, let's ask Mr. Joel. He wrote the letter.

REP. TIERNEY: He works for you, so I'm asking you. Or you didn't know this?

ADM. MCCONNELL: Oh, well, I'm -- well, restate the question. I thought you were asking him a question.

REP. TIERNEY: The question is that he says that the NSA is using minimization procedures previously reviewed and approved by the FISA court. Even though he doesn't read the PAA as requiring it, that's what's being done.

ADM. MCCONNELL: That is -- that's my understanding of what's being done currently, yes. And the reason for that, sir, is the court set the standard and it's been tested in court. It's a reasonable standard and it's good for us to follow it.

REP. TIERNEY: And did that in any way impede the process of implementing any of the new authorities under the PAA?

ADM. MCCONNELL: No to my knowledge.

REP. TIERNEY: All right.

Do you have an objection to requiring the FISA court to review the minimization procedures in any future FISA legislation?

ADM. MCCONNELL: Sir. I'd be happy to take any recommendation suggestion you've got. And remember, I've tried to highlight several times -- very complex, and you want to keep asking me hypotheticals. You know, let's write it down, have my team look at it --

REP. TIERNEY: But my point --

ADM. MCCONNELL: Negotiate, and I can --

REP. TIERNEY: My point is that --

ADM. MCCONNELL: -- I'd be happy to look at anything you suggest, sir.

REP. TIERNEY: Well, this is something your office suggested because they're the ones that are doing it, all right? Mr. Joel has made the suggestion and is carrying out the fact that he's following those previous FISA procedures. And you said that that didn't in any way impede the operation under the new PAA, so I assume that you have no objection to that being written into the law -- that that's what we'll do at this point.

ADM. MCCONNELL: I have no objection to any recommendation you want to make. We'll be happy to examine it.

REP. TIERNEY: Are you opposed, then, to the FISA court having authority written into the law to do exactly what Mr. Joel is now doing on his own?

ADM. MCCONNELL: I'd be happy to take the language and examine it, sir. The point I keep trying to highlight --

REP. TIERNEY: Let me back up --

ADM. MCCONNELL: Is very complex --

REP. TIERNEY: Do you have an objection to Mr. Joel doing what he's doing now?

ADM. MCCONNELL: I have no objection to Mr. -- what Mr. Joel's doing --

REP. TIERNEY: All right. Fine.

ADM. MCCONNELL: -- what he's doing.

REP. TIERNEY: Let's go back to --

ADM. MCCONNELL: But what I'm trying to make sure everybody understands is we can't get ourselves in the situation we were before where we're forced under a time constraint -- you had a time constraint, I did not, and we were asked to --

REP. TIERNEY: We have our opinion on how that time constraint came to be, all right? And I want --

ADM. MCCONNELL: Sir, it was your schedule. Not mine.

REP. TIERNEY: No, it wasn't anybody's schedule. It was a political schedule, if you really want to get down to it.

ADM. MCCONNELL: Well, sir, that's a point of view.

REP. TIERNEY: That's a very strong point of view, and I think everybody realizes it now, all right? But the fact of the matter is that -- you know, we're trying to find a way to get to a law that everybody can --

ADM. MCCONNELL: We'd be happy to look at anything you propose.

REP. TIERNEY: I'm happy to know that Mr. Joel at least -- and apparently with your approval now -- sees no objection to the court looking at those procedures for minimization and approving them. His letter also notes that the NSA inspector general is conducting an audit of the implementation of the new act, and that the inspector general regularly conducts audits, inspections and reviews of compliance and minimization procedures. Why was that decision made that the NSA IG would conduct an audit on the implementation of the new act? Do you know?

ADM. MCCONNELL: It's been part of the process since the beginning, to my knowledge.

REP. TIERNEY: Okay. So I can assume, then, you would not object to requiring in the statute that the inspector general make those reviews and make those audits in the future with respect to any civil liberty protections -- to put into law what it is you're already doing.

ADM. MCCONNELL: Sir, I have no objection to anything you want to recommend. If we agree with the language --

REP. TIERNEY: I'm not talking about recommendations. I'm talking about do you have an objection to writing into law --

ADM. MCCONNELL: We'd be happy to consider --

REP. TIERNEY: -- the function -- what Mr. Joel says is now happening, the inspector general doing audits.

ADM. MCCONNELL: I'd say again, you -- let's write it down and let's examine --

REP. TIERNEY: I'm not writing it down. I'm saying -- it's not hard to understand.

ADM. MCCONNELL: And then we'll agree to it.

REP. TIERNEY: Do you have an objection to the inspector general conducting audits, or do you not have an objection?

ADM. MCCONNELL: I do not have an objection to the inspector general conducting audits in NSA. They have when I was there. They still are. I have no objection to that.

REP. TIERNEY: Fine. That was very easy to get to. We didn't have to write it down.

Now earlier you talked about there being a large database, so making it improbable or difficult -- sometimes also impossible to determine the number of times that United States persons' communications that were inadvertently intercepted when you were going after a target in a foreign country --

ADM. MCCONNELL: That's not exactly what I said.

REP. TIERNEY: All right. Well, will you tell me again what you said?

ADM. MCCONNELL: Yes. I said we have no control over what foreign targets would talk about. And remember, it's to, from or about.

REP. TIERNEY: Mm-hmm.

ADM. MCCONNELL: So if a foreigner's talking about you and it's in the database, I may not know. I may -- could find it if I had a reason to go search for it.

REP. TIERNEY: Okay.

ADM. MCCONNELL: The database would age off in a period of time with the -- no harm, no foul.

REP. TIERNEY: But when somebody asks you for the number of times when U.S. persons or a person in the United States were involved in that situation, I think said that there was some degree of difficulty in getting that done.

ADM. MCCONNELL: I just don't know how difficult, but we'll look at it and see if we can answer the question.

REP. TIERNEY: Would it be reasonable to have a sampling done?

(Cross talk.)

ADM. MCCONNELL: We'll look and see. If we can give you the total complete answer, we will. We just -- I just don't know that we can, but we'll take the question and see what's doable.

REP. TIERNEY: Thank you very much.

Thank you, Mr. Chairman.

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