LEGISLATIVE PROPOSALS TO UPDATE THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT (FISA)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 6, 2006
__________
Serial No. 109-136
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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SEPTEMBER 6, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 4
WITNESSES
Mr. Steven G. Bradbury, Acting Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Robert L. Deitz, General Counsel, National Security Agency
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Mr. Robert D. Alt, Fellow, Legal and International Affairs, The
John M. Ashbrook Center for Public Affairs, Ashland University
Oral Testimony................................................. 22
Prepared Statement............................................. 25
Mr. Jim Dempsey, Policy Director, Center for Democracy and
Technology
Oral Testimony................................................. 32
Prepared Statement............................................. 35
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 91
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan and
Ranking Member, Committee on the Judiciary..................... 92
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 93
Prepared Statement of the Honorable Jane Harman, a Representative
in Congress from the State of California....................... 94
Letter from the Honorable Sheila Jackson Lee to the Honorable F.
James Sensenbrenner, Jr., and the Honorable John Conyers, Jr... 95
Letter to the Honorable Peter Hoekstra and the Honorable Jane
Harman from Caroline Fredrickson, Director of the Washington
Legislative Office, and Lisa Graves, Senior Counsel for
Legislative Strategy, American Civil Liberities Union (ACLU)... 96
NewsweekArticle, ``Palace Revolt,'' dated February 6, 2006....... 102
H.Res. 819, Requesting the President and directing the Attorney
General to submit to the House of Representatives all documents
in the possesion of the President and the Attorney General
relating to requests made by the National Security Agency and
other Federal agencies to telephone service providers
requesting access to telephone communications records of
persons in the United States and communications originating and
terminating within the United States without a warrant......... 108
LEGISLATIVE PROPOSALS TO UPDATE THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT (FISA)
----------
WEDNESDAY, SEPTEMBER 6, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:06 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good afternoon, ladies and gentlemen. The
hearing on updating the Foreign Intelligence Surveillance Act
(FISA) will come to order.
Next Monday, as you all know, is September 11, and we will
mark the fifth anniversary of the heinous attacks that killed
almost 3,000 Americans on U.S. soil. While we remember those
lost, we also must not forget those who continue to put their
lives on the line here and abroad to prevent subsequent
attacks.
The enemy we face, in my opinion, is not our law
enforcement nor our intelligence community, who are working to
thwart the terrorists set out to destroy our Nation. The enemy
we face furthermore is not brave, ethical or humane. The enemy
we face, it seems to me, is cowardly, despicable and inhumane.
This enemy flies into buildings, straps bombs onto teenagers to
kill innocent bystanders, and continues to plan an attempt to
kill even more Americans. More recently, you all know about the
Great Britain effort to thwart a plan to blow up planes headed
for the United States.
We face an enemy who does not want land, does not want
rights, does not want to negotiate. This enemy wants death and
destruction, our death and destruction. The men and women in
law enforcement and the intelligence community need tools that
are streamlined and updated to match the technology and efforts
of the terrorists.
Knowing that this is a threat we must defeat, Congress
continues to update the laws. Today the Subcommittee will
examine a number of proposals that affect foreign intelligence
gathering and the need to improve such surveillance.
I believe that the vast majority of people agree that we
need to conduct and support surveillance against terrorists. We
can't have done this while protecting civil liberties. We need
to have a constructive debate over how to ensure that our law
enforcement and intelligence community are on equal footing
with these killers. As is often said, the terrorists have to be
lucky only once to kill and maim Americans. We have to be
correct in every instance.
I look forward to the testimony of our witnesses on how to
improve FISA; and now I am pleased to recognize the
distinguished gentleman from Virginia, the Ranking Member of
the Committee, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I want to thank you for
holding the hearing on the various proposals to address the NSA
surveillance issues. However, this is really a broader issue
than encompassed by the various proposals and certainly a
broader issue than the minority can address with one witness
with a 5-minute statement. So I am hopeful this is merely the
start of a series of hearings on this subject area.
I look forward to working with you to fully explore the
issue on how Government can appropriately and effectively
conduct surveillance on those who would harm Americans without
the Government harming Americans through the violation of their
rights, freedoms, privacies and protections under the law.
When law enforcement and intelligence officials have
something or someone on whom they deem it appropriate to
conduct surveillance, I find it insulting and disingenuous to
our system of laws and procedures for someone to suggest that
they cannot conduct that surveillance because of the need to
comply with the Constitution, constitutional procedures which
have been in effect for over 200 years. Our order suggests that
it is inconvenient to comply with them by obtaining a warrant,
and therefore they can't do it at all because it is
inconvenient.
It is not inadequate or consistent with our system of
checks and balances of Government authority and power to
suggest that notifying some Members of Congress under
circumstances where Members can go to jail for telling the
public what they know, that is not a check and balance that we
traditionally have. Unfortunately, under the proposals before
us that are likely to get consideration, here we go again using
terrorism as a basis to greatly expand the Government's
authority to conduct surveillance on innocent Americans in the
United States without having to demonstrate to a court or any
other detached entity that there is a reasonable basis for such
surveillance.
First of all, Mr. Chairman, we don't even know what kind of
surveillance is currently being done by NSA. The logic used by
the Administration, that they have said publicly, to listen in
to calls coming into the United States applies equally to those
calls that are domestic as well as those that are initiated
abroad. Yet without any public or otherwise effective oversight
and assessment of what the President through the NSA is doing
secretly to conduct surveillance in America and whether or not
that is legal would not only designate it as legal but greatly
expanding his opportunity to do so.
Now, we have seen numerous instances in this Administration
where it sees itself above the traditional boundaries of law.
We saw it with the process where they just declare someone an
enemy combatant, including American citizens, and holding them
indefinitely with no end in sight and depriving them of all
rights and remedies to even contest their designation. And when
the Administration finally did have to acknowledge the
necessity for charging and trying the accused persons, the
decision was made to try them through military tribunals, which
don't have the traditional checks and balances that other
procedures have.
We also saw the same approach to policies promoted by the
torture memorandum leading to the Abu Ghraib torture incidents.
In addition, we saw it with the Attorney General's decision to
listen in on attorney/client conversations to detain persons.
And now with previously secret decisions to listen in on
conversations of Americans coming into or going out of the
country, and whatever else they are doing, we just don't know
because we haven't called on them to account for this to this
oversight Committee, and we haven't gotten answers to the
questions that we proposed.
All of these activities avoid any approval or scrutiny of
the courts. We only find out the true nature of what is
happening when it is brought to the courts through challenges
to the constitutionality, as we found with the Padilla and the
Hamdan cases, and now we see it with the NSA case brought by
the ACLU, which is working its way through the courts after the
initial finding that the process is unconstitutional.
So instead of moving now to try to cloak the activity in a
veil of legitimacy, now, instead of trying to figure out what
they are doing, we are simply cloaking the activity through a
veil of legitimacy through legislation. Rather than doing that,
we should wait at least until the court's final determination
or at least have the Administration proceed on its case where
it would seek FISA's court review of its activities.
It is simply unacceptable to Americans that a call made or
received by citizens in this country can be listened to or
otherwise intercepted by the Government without approval or
review by a court with authority to authorize or deny such
interception based on whether good cause is shown. To do so is
tantamount to operating under a police state and in variance to
some of the most basic, fundamental principles upon which this
Nation was founded. And all of this is done without any
presentation or indication of a need for such sweeping
additional governmental authority over citizens' private
affairs or any credible evidence or finding of any inadequacies
in the current law to justify such a drastic change.
One protective thing to note is the Wilson-Sensenbrenner
and the Specter bills. One thing they do, by analogy, is to
confirm by inference that the current NSA surveillance activity
is patently illegal; otherwise, there would be no need for
those bills to be introduced. So I hope you will carefully
study this issue, Mr. Chairman, and move to require the
Administration to be in compliance with existing law.
There is no inconsistency to protecting us from terrorism
and remaining a country which operates under the rule of law.
We should first assure compliance of existing law, then
determine whether any changes are needed to provide for greater
effectiveness on the part of law enforcement; not change the
law just to conform to what we think the Administration might
be doing.
I look forward to the testimony of our witnesses on this
important issue, Mr. Chairman; and again, hope that this is one
of a series of hearings so that we can fully figure out what is
going on.
Mr. Coble. I thank the gentleman from Virginia.
Prior to recognizing the distinguished gentleman from
Michigan, the Ranking Member of the Full Committee, I will say
to the Members of the Subcommittee, all Members may without
objection may have their statements included into the record.
The gentleman----
Mr. Scott. Mr. Chairman, could I recognize--we have one
person who is not a Member of the Committee, Ms. Jane Harman,
who is the ranking Democrat on the Intelligence Committee.
Mr. Coble. I was going to recognize her separately. I think
not.
Good to have you both with us.
And now the distinguished gentleman from--oh, Mr. Delahunt
and Mr. Chabot and Mr. Flake from Arizona and Ohio.
Mr. Delahunt from Missouri--strike that. From
Massachusetts. I will be okay. It has been a tough work period.
Mr. Delahunt. Missouri?
Mr. Coble. I will talk to you about that later.
The gentleman from Michigan for his opening statement, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Coble, and to our friends
and Members who have joined us.
First of all, I would like to recognize the witnesses, Mr.
Dempsey and Mr. Bradbury, Mr. Deitz, Mr. Alt. And also I would
like unanimous consent to put in the record the American Civil
Liberties Union letter written by ACLU Director Fredrickson.
Mr. Coble. Without objection, that will be accepted.
[The information referred to follows in the Appendix]
Mr. Conyers. Thank you very much.
And I am very happy that we have permitted Ranking Member
Jane Harman of the Intelligence Committee to join us today. I
am sorry that we may not be able to permit her to make any
statements. I would be willing to give her some of my time, if
not all of it, actually because of the good work she has done
on the legislation that we are now also considering before the
Committee.
But at any rate, she has a statement that I would like
unanimous consent to have put in the record.
Mr. Coble. Without objection.
[The prepared statement of Ms. Harman follows in the
Appendix]
Mr. Coble. Mr. Conyers, would you yield to me?
Mr. Conyers. Of course.
Mr. Coble. Ms. Harman, we are delighted to have you here.
In light of consistency, we have never permitted a Member who
does not sit on the Full Committee to take part. We will be
glad to have your statement in the record.
Thank you, Mr. Conyers.
Mr. Conyers. Thank you very much.
I start out on the premise, building upon our Ranking
Subcommittee Member Scott's excellent set of observations, and
I join with him in urging that there be additional hearings on
this subject matter. I start out on the point that we strongly
support intercepting each and every conversation involving al-
Qaeda and its supporters whether in the United States or
anywhere else. But the concerns that we meet here today about
are whether it is a sensible thing to do to take up legislation
that simply codifies an unlawful surveillance program and which
further unjustifiably expands the President's authority.
The current statute on this subject allows for court-
approved wiretaps and includes an emergency exception allowing
wiretapping without a court order for up to 72 hours. And it
seems to me that that is the first hurdle we have got to get
over.
If additional resources are needed to comply with the law
and the Fourth Amendment, we should authorize them. I think we
would be more than happy to do that. But since September 11, we
have made more than 25 separate changes in the Foreign
Intelligence Surveillance Act at the Administration's request
and thousands of wiretaps have been approved by the courts,
hundreds of emergency orders have been issued. Very few adviser
requests are turned down and the court itself has streamlined
its procedures to accommodate the Administration's needs.
We have done everything that's been requested of us. And
the Administration has still chosen to act unilaterally and
outside the law.
Nine months after we have learned about this warrantless
surveillance program, there has been almost--little or no
independent inquiry into its legality. Not only have we failed
to conduct any sort of investigation, but the Administration
summarily rejected all requests for special counsels as well as
reviews by the Department of Justice and the Department of
Defense Inspectors General.
When the Department of Justice finally opened an
investigation, the President himself squashed it by denying the
investigators security clearances. The Department of Justice
has completely ignored numerous questions posed by this
Committee, as well as the Wexler resolution of inquiry that we
previously adopted.
We have got some big problems here and I would ask that the
remainder of my opening statement be included in the record,
and I thank you for the permission to make it at this time.
Mr. Coble. I thank you, Mr. Conyers.
[The prepared statement of Mr. Conyers follows in the
Appendix]
Mr. Coble. Gentlemen, as part of the Subcommittee, I need
to swear in all witnesses appearing before us so if you would
please stand and raise your right hand.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
Mr. Delahunt. Mr. Chairman, before we hear from the
witnesses, if I could inquire of the Chair, it was my
understanding that the Chairman of the Full Committee, Mr.
Sensenbrenner, was going to consider the Wexler resolution of
inquiry as a subpoena--I don't want to mischaracterize it--and
presumably there was going to be, from the passage of the
resolution of inquiry coming out of this Committee, some
consultation between the Department of Justice, the White House
and the Committee.
If you know, Mr. Chairman, has there been any discussion
regarding these issues?
Mr. Coble. I believe, Mr. Delahunt, if you yield----
Mr. Delahunt. I yield.
Mr. Coble.--I think that we are awaiting a response from
DOJ.
Mr. Delahunt. Well, I think it is important, if you have it
readily available, to enter into the record the date of the
resolution of inquiry, because I would have expected and
anticipated that a 6- or 7-week period would have been
sufficient time for the Department of Justice to provide this
Committee, the Committee that has jurisdiction over the
Department of Justice, the information that was requested.
Mr. Coble. If the gentleman would yield again, I concur. I
do think ample time has expired and a response should be in
hand.
Let me talk to the Chairman about that subsequent, Mr.
Delahunt, and that is all I can say about that.
Mr. Delahunt. Maybe Mr. Bradbury can enlighten us.
Mr. Bradbury. Unfortunately, I am not in a position to--I
am not involved in the discussions, and I don't know the status
of that request.
Mr. Conyers. Mr. Chairman, can I ask unanimous consent that
the Wexler resolution be included in the record?
Mr. Coble. Is there any objection?
Without objection.
[The information referred to follows in the Appendix]
Mr. Conyers. Thank you.
Mr. Coble. Mr. Delahunt, are you finished? I cut you off.
Mr. Delahunt. You didn't cut me off, and I appreciate you
giving me the time.
I just find it disturbing that we don't know. We know
nothing about the program. We know nothing about even whether
there has been communication between the Department of Justice
and this Committee.
I mean, I just have to associate myself with the remarks of
Mr. Scott. I mean, I am sure this will be a very nice and
cordial conversation among these distinguished gentlemen and we
will have a chance to banter back and forth with our friends
from Texas.
Mr. Gohmert. Will the gentleman yield?
Mr. Delahunt. Of course.
Mr. Gohmert. I am curious whether the Jefferson raid on his
office may be precedent for the fact that when an entity fails
to respond to a request for documents for a certain length of
time, if that allows you to get the local law enforcement or
the Capitol Police and go raid an office to obtain that
information. I am not sure which precedent that set.
Mr. Delahunt. Reclaiming my time. That is a very
interesting observation. But I just feel, and again with great
respect to the Chair, I feel we are being played with.
You know, I don't want to look like we are the Bundestag
during the Third Reich and just roll over for an Administration
that is going to say to us, we will get around to it when we
feel like it.
I hope that is not the case, but it has the appearances,
Mr. Chairman, of--well, we are going to have a hearing today,
and like I said, I am sure it will be interesting, kind of an
academic exercise. But I don't think any Member of this panel--
on either side, Republican or Democrat, we don't know anything,
and I think that we have a constitutional right and out of just
simple comity, respect for this institution, that that response
should have been forthcoming. If it's the position of the
Department of Justice that they refuse to respond to this
Committee and--by the way, a majority of which is Republican,
then I think we ought to know about that.
With that, I yield back.
Mr. Coble. I thank the gentleman.
We have four distinguished visitors, witnesses, with us
today. And, folks, I don't want to sound like we are trying to
buggy-whip anybody. I regard myself as a--pardon my immodesty,
as a pretty easy dog to hunt with, as is Mr. Scott. But, folks,
we received one statement late last night and one statement
late this morning. Just take back to your superiors that timely
presentation of statements would afford us a little more luxury
in preparing for the hearing.
Let me introduce the distinguished witnesses with us today.
Our first witness is Mr. Steve Bradbury, Acting Assistant
Attorney General for the Office of Legal Counsel at the
Department of Justice. Prior to working for the Department of
Justice, Mr. Bradbury was a partner with the law firm of
Kirkland & Ellis, LLP, and prior to that served as a law clerk
to Justice Clarence Thomas of the Supreme Court.
Mr. Bradbury obtained his undergraduate degree from
Stanford University and his J.D. from the Michigan School of
Law, where he was graduating magna cum laude.
Our second witness is Mr. Robert Deitz, General Counsel of
the National Security Agency. Mr. Deitz has served as General
Counsel of the NSA since 1998, as well as periodically serving
as Acting General Counsel for the National Geospatial
Intelligence Agency and Acting Deputy Counsel For Intelligence
at the Department of Defense. Prior to working for the NSA, Mr.
Deitz was a partner in the Washington, DC, office of Perkins
Coy.
He received his B.A. with honors from Middlebury College,
M.B.A. from the Woodrow Wilson School of Public and
International Affairs at Princeton University and his J.D. from
the Harvard School of Law where he was graduated magna cum
laude.
Our third witness is Mr. Robert Alt. He is a Fellow in
Legal and International Affairs at the John M. Ashbrook Center
for Public Affairs at Ashland University, where he has taught
classes on constitutional law, political parties and interest
groups. Most recently, he was made a Fellow at the Institute of
Global Security Law & Policy at the Case School of Law, for
which we add our congratulations.
Mr. Alt has published articles in numerous media
publications including the Wall Street Journal, the Washington
Times and the San Diego Union Tribune and has provided
commentary on several major news networks. Mr. Alt received his
J.D. Degree from the University of Chicago.
Our final witness, Mr. Jim Dempsey, is Policy Director for
the Center for Democracy and Technology. Mr. Dempsey has been
with the Center since 1997 and previously served as Executive
Director. Prior to joining the Center for Democracy and
Technology, Mr. Dempsey was the Deputy Director for the Center
for National Security Studies, and prior to that he served as
Assistant Counsel for the House Judiciary Subcommittee on Civil
and Constitutional Rights.
Good to have you back on the Hill, Mr. Dempsey.
Mr. Dempsey also practiced in areas of Government and
commercial contracts, energy law and antitrust while an
associate with the Washington, D.C., law firm of Arnold &
Porter. He maintained that extensive pro bono reputation of
death row inmates in Federal habeas proceedings.
Now I apologize to all of you for my lengthy, detailed
introduction, but I think it is important for all of us,
including those in the hearing room, to know the credentials
that witnesses do indeed bring to the table at these hearings.
Gentlemen, as you all have been previously advised, we
operate under the 5-minute rule. When you see that amber light
appear in your face, you will know that your time is running
out. You will have a minute at that point. Now, no one is going
to be keyholed if you violate the 5-minute rule but when the
red light appears, that is your warning that the 5 minutes have
elapsed, and we would ask you to conclude at that point.
Mr. Bradbury, we will start with you.
TESTIMONY OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Bradbury. Thank you, Mr. Chairman, Ranking Member
Scott, distinguished Members of this Committee.
As we approach the 5-year anniversary of 9/11, the single
deadliest foreign attack on U.S. soil in our Nation's history,
we recognize what our enemies well knew long before 9/11. We
are at war. The enemies we face today operate in obscurity
through secret cells that operate globally while plotting to
carry out attacks from within our own communities. Less than 1
month ago, British security services neutralized a planned
attack program only days from execution. These terrorists
planned to use sophisticated explosives, capable of evading
airport screenings, to blow up perhaps a dozen airliners bound
for the United States.
We can all agree that foreign intelligence surveillance is
a critical tool in our common effort to prevent another
catastrophic terrorist attack on the United States. At the same
time, we all recognize the fundamental challenge the war on
terror presents for a free society. We must detect and prevent
the next 9/11 while steadfastly safeguarding the liberties we
cherish. As we seek to reframe FISA, we must ensure that we
retain the constitutional balance between security and liberty.
The 28 years since the enactment of FISA have seen one of
the greatest transformations in modes of communication of any
period in history. In 1978, almost all transoceanic
communications into and out of the United States were carried
by satellite, and Congress intentionally kept those
communications largely outside the scope of FISA's coverage
consistent with FISA's primary focus on domestic communications
surveillance. At that time, Congress did not anticipate the
technology revolution that would bring us global, high-speed
fiber-optic networks, the Internet, e-mail and disposable cell
phones.
Innovations in communications technology have fundamentally
transformed how our enemies communicate, and therefore how they
plot and plan their attacks. It is more than a little ironic
that al-Qaeda expertly exploits the communication tools of the
Internet Age to advance extremist goals of intolerance and
tyranny that are more suited to the 12th century than the 21st.
Meanwhile, the United States, the most advanced nation on
earth, confronts the threat of al-Qaeda with a legal regime
primarily designed for the last century and a Cold War
adversary that no longer exists.
The President authorized the terrorist surveillance program
in the wake of 9/11 in order to establish an early warning
system to detect and prevent further al-Qaeda attacks. As
described by the President, that program, which has been the
subject of numerous prior congressional hearings and extensive
oversight by the Intelligence Committees of both Houses of
Congress, involves the NSA's monitoring of international
communications into and out of the United States where there
are reasonable grounds to believe that at least one party to
the communication is a member or agent of al-Qaeda or an
affiliated terrorist organization. The terrorist surveillance
program places the initial decision to target communications
for interception in the hands of highly trained intelligence
professionals subject to rigorous oversight. This program
preserves the speed and agility necessary for wartime
surveillance.
Congress is currently considering several pieces of
legislation addressing FISA and the terrorist surveillance
program. I want to thank the Members of Congress for their hard
work toward crafting a comprehensive approach that will help us
protect the Nation from terrorists and other foreign threats,
gather critical foreign intelligence more effectively and still
protect civil liberties. In particular, I want to thank
Representative Wilson, who sits on the Intelligence Committee
and has introduced a bill, cosponsored by Sensenbrenner and
Hoekstra, which seems to move FISA into the 21st century. I
intend to focus my remarks today primarily on Representative
Wilson's bill.
Fundamentally, her legislation recognizes that in times of
armed conflict involving an exigent terrorist threat, the
President may need to act with agility and dispatch to protect
the country by putting in place a program of electronic
surveillance targeted at the terrorists and designed to detect
and prevent the next attack. We see promise in this bill and
hope we can work with Congress in producing legislation quickly
that addresses the threats that face the Nation.
I would point out that this bill, however, would require
the President to wait for the United States actually to be
attacked before he could initiate an electronic surveillance
program under this Administration. We think the President
cannot and should not wait for thousands of Americans to die
before initiating vital intelligence collection.
Article II of the Constitution, as we have explained in the
paper that we provided to Congress back in January, already
gives the President the authority to take such actions to
defend the Nation. And to use the words of the FISA Court of
Review, nothing in FISA could ``encroach on the President's
constitutional power.'' We believe it is important that
Congress support and assist the President in performing this
most solemn constitutional obligation.
Representative Wilson's bill also includes several
important reforms to update FISA for the 21st century. These
changes are designed to account for the fundamental changes in
technology that have occurred since FISA's enactment in 1978
and to make FISA more effective and more useful in addressing
the foreign intelligence needs of the United States.
Changes contained in the bill would correct the most
significant anachronisms in FISA. It would also make some
significant changes to streamline the FISA application process.
These provisions in Representative Wilson's bill offer a good
start toward important improvements toward the existing FISA
process, but further refinements are appropriate.
The Executive Branch has been working and will work hard to
solve the problems represented by updating the FISA statute,
and we will work with Representative Wilson and with Members of
Congress to put refinements in this legislation and improve it
so that it gets the job done in a way that will best protect
the country and preserve our liberties.
Again, Mr. Chairman, thank you for the opportunity to
appear today on this important issue.
Mr. Lungren. [Presiding.] Thank you, Mr. Bradbury.
[The prepared statement of Mr. Bradbury follows:]
Prepared Statement of Steven G. Bradbury
Mr. Lungren. Mr. Deitz.
TESTIMONY OF ROBERT L. DEITZ, GENERAL COUNSEL, NATIONAL
SECURITY AGENCY
Mr. Deitz. Good afternoon, Mr. Chairman, Ranking Member
Scott and Members of the Committee.
I am pleased to be here today to provide testimony in
support of legislative efforts to amend the Foreign
Intelligence Surveillance Act of 1978. Changes are needed, I
believe, in order to recapture the original constitutional
intent of the statute regulating the electronic surveillance of
persons within the United States as the Government engages in
electronic surveillance. At the same time, surveillance
directed at individuals who are not due protection under the
Fourth Amendment should be removed from the statute's coverage.
Some of the specifics that support my testimony cannot be
addressed in open session, and while I would be happy to
elaborate on the technological changes that have taken place
since 1978 in an appropriate setting, the essential point can
be made very clearly and publicly.
Communications technology has evolved in the 28 years
between 1978 and today in ways that have had unforeseen
consequences under FISA. Technological changes in the
communications environment have brought within FISA's scope
communications that we believe the 1978 Congress did not intend
to be covered and that were excluded from the act's scope.
Despite this change, NSA's mission remains the same. NSA
intercepts communications to protect the lives, liberties
and well-being of the citizens of the United States from
those who would do us harm. Today, NSA is often required by the
terms of FISA to make a showing of probable cause, a notion
derived from the Fourth Amendment in order to target for
surveillance the communications of a foreign person overseas.
Frequently, though by no means always, that person's
communications, in turn, are with another foreign person
overseas. In such cases, the current statutory requirement to
obtain a court order based on a showing of probable cause slows
and in some cases prevents altogether the Government's efforts
to conduct surveillance of communications it believes are
significant to the national security.
The FISA seeks, in our view, to permit the surveillance of
foreign intelligence targets while providing appropriate
detection through court supervision to U.S. citizens and to
other persons inside the United States. As the legislative
history of the 1978 statute states, ``The history and law
relating to electronic surveillance for 'national security'
purposes have revolved around the competing demands of the
President's constitutional powers to gather intelligence deemed
necessary for security of the nation and the requirements of
the Fourth Amendment.''
While debates concerning the extent of the President's
constitutional powers were heated in the mid-1970's, as they
indeed are today, we believe that the judgment of Congress at
that time was that it was only when significant Fourth
Amendment interests were implicated that court supervision was
important. Yet the Fourth Amendment is clearly not always at
issue when NSA or another intelligence agency acts, and the
FISA on its face never sought to encompass all activities of
the NSA within its coverage. Rather, the definitions of the
term ``electronic surveillance'' contained in the statute have
always affected just a portion, just a portion of NSA's signals
intelligence mission. Indeed, by far the bulk of NSA's
surveillance activities take place overseas, and these
activities are directed entirely at foreign countries and
foreign persons within those countries.
All concerned agree, and to my knowledge have always
agreed, that the FISA does not and should not apply to such
activities. When NSA undertakes surveillance, that does not
mean--I am sorry, when NSA undertakes surveillance that does
not meet any of the definitions of electronic surveillance
contained in the FISA, it does so lawfully under Executive
Order 12333 without any resort to the FISA court.
In addition, even as it engages in its overseas mission, in
the course of targeting the communications of persons overseas,
NSA will sometimes encounter communications to, from or about
U.S. persons. Yet this fact does not in itself cause the FISA
to apply to NSA's overseas surveillance activities, and to my
knowledge, no serious argument exists that it should. Instead,
at all times, NSA applies procedures approved by the U.S.
Attorney General to all aspects of its activities, seeking
through these procedures to minimize--it is a term of art--the
acquisition, retention and dissemination of information
concerning U.S. persons. These procedures have worked well for
decades to ensure the constitutional reasonableness of NSA's
surveillance activities, and eliminate from intelligence
reports, incidentally, information concerning U.S. persons that
does not constitute foreign intelligence. Accomplishing this
has never required a court order.
Because of the way the definition of electronic
surveillance contained in the current statute is constructed,
NSA must answer four questions in order to determine whether a
FISA order is required for it to engage in electronic
surveillance. These questions concern the nationality of the
target, the location of the target, the means by which the
target is communicating and the location from which the
communications will be carried out. We believe that the truly
significant question on the list is the one that gets to the
heart of the applicability of the Constitution, that is, the
location of the target of surveillance. The other questions
reflect a common-sense approach to 1978 technology that worked
well then, but that today has unintended consequences. They are
ancillary, if not irrelevant, to the more fundamental issue.
Thus, in some cases, the location from which NSA seeks to
acquire communication becomes a question clothed in undue
significance. So, too, the technology employed by the provider
of the communication service can in some cases be dispositive
of whether the Government must obtain a FISA order or not. We
think this is far from what was intended by the statute
supporters in 1978 and requires change.
Mr. Chairman, I know my time has elapsed. May I have
another minute or two, please?
Mr. Coble. Well, go ahead, but wrap it up.
Mr. Deitz. Thank you. I will be very quick.
Mr. Coble. And in a sense of fairness and equity, I will
also be equally liberal to the two remaining witnesses. But
move it along.
Mr. Deitz. In our view, the FISA should be returned to what
we believe was its original purpose of regulating foreign
surveillance targeting persons in the United States, not the
surveillance of non-U.S. persons overseas who are not entitled
to constitutional rights.
And if I may conclude, we think that these principles that
I have articulated, clearly and artfully captured in parts of
the original FISA legislation and in its legislative history,
should extend to all surveillance under the FISA. The need for
a court order should not depend on whether NSA's employees
conducting the surveillance are inside the United States or
outside the United States, nor should it depend on whether the
communications meet the technical definition of ``wire
communications'' or not.
Thank you, Mr. Chairman, and if I could, I request the
remainder of my statement be placed in the record.
Mr. Coble. Without objection.
[The prepared statement of Mr. Deitz follows:]
Prepared Statement of Robert L. Deitz
Good morning Mr. Chairman, Ranking Member Scott, and Members of the
Committee.
I am pleased to be here today to provide testimony in support of
legislative efforts to amend the Foreign Intelligence Surveillance Act
of 1978. Changes are needed, I believe, in order to recapture the
original Congressional intent of the statute--regulating the electronic
surveillance of persons within the United States--as the Government
engages in electronic surveillance. At the same time, surveillance
directed at individuals who are not due protection under the Fourth
Amendment should be removed from the statute's coverage.
Some of the specifics that support my testimony cannot be discussed
in open session, and while I would be happy to elaborate on the
technological changes that have taken place since 1978 in an
appropriate setting, the essential point can be made very clearly and
publicly: communications technology has evolved in the 28 years between
1978 and today in ways that have had unforeseen consequences under
FISA. These stunning technological changes in the communications
environment have brought within FISA's scope communications that we
believe the 1978 Congress did not intend to be covered and that were
excluded from the Act's scope.
Despite this change, NSA's mission remains the same. NSA intercepts
communications to protect the lives, the liberties, and the well-being
of the citizens of the United States from those who would do us harm.
Today, NSA is often required by the terms of FISA to make a showing of
probable cause, a notion derived from the Fourth Amendment, in order to
target for surveillance the communications of a foreign person
overseas. Frequently, though by no means always, that person's
communications are with another foreign person overseas. In such cases,
the current statutory requirement to obtain a court order, based on a
showing of probable cause, slows, and in some cases prevents
altogether, the Government's efforts to conduct surveillance of
communications it believes are significant to the national security.
The FISA seeks--we believe--to permit the surveillance of foreign
intelligence targets, while providing appropriate protection through
court supervision to U.S. citizens and to other persons in the United
States. As the legislative history of the 1978 statute states: ``[t]he
history and law relating to electronic surveillance for `national
security' purposes have revolved around the competing demands of the
President's constitutional powers to gather intelligence deemed
necessary for the security of the nation and the requirements of the
Fourth Amendment.'' \1\ While debates concerning the extent of the
President's constitutional powers were heated in the mid-1970s, as
indeed they are today, we believe that the judgment of Congress at that
time was that it was only when significant Fourth Amendment interests
were implicated that court supervision was important .
---------------------------------------------------------------------------
\1\ H.Rpt. 95-1283 at p. 15, 95th Congress, 2d Session, June 8,
1978.
---------------------------------------------------------------------------
Yet the Fourth Amendment is clearly not always at issue when NSA or
another intelligence agency acts, and the FISA on its face never sought
to encompass all activities of the NSA within its coverage. Rather, the
definitions of the term ``electronic surveillance'' contained in the
statute have always affected just a portion of NSA's signals
intelligence mission. Indeed, by far the bulk of NSA's surveillance
activities take place overseas, and these activities are directed
entirely at foreign countries and foreign persons within those
countries. All concerned agree, and to my knowledge have always agreed,
that the FISA does not and should not apply to such activities. When
NSA undertakes surveillance that does not meet any of the definitions
of electronic surveillance contained in the FISA, it does so lawfully
under Executive Order 12333 without any resort to the FISA court.
In addition, even as it engages in its overseas mission, in the
course of targeting the communications of foreign persons overseas, NSA
will sometimes encounter information to, from or about U.S. persons.
Yet this fact does not, in itself, cause the FISA to apply to NSA's
overseas surveillance activities, and to my knowledge no serious
argument exists that it should. Instead, at all times, NSA applies
procedures approved by the U.S. Attorney General to all aspects of its
activities, seeking through these procedures to minimize the
acquisition, retention, and dissemination of information concerning
U.S. persons. These procedures have worked well for decades to ensure
the constitutional reasonableness of NSA's surveillance activities, and
eliminate from intelligence reports incidentally acquired information
concerning U.S. persons that does not constitute foreign intelligence.
Accomplishing this has not required a court order.
Because of the way the definition of ``electronic surveillance''
contained in the current statute is constructed, NSA must answer four
questions in order to determine whether a FISA order is required for it
to engage in electronic surveillance. These questions concern the
nationality of the target, the location of the target, the means by
which the target is communicating, and the location from which the
surveillance will be carried out. We believe that the truly significant
question on this list is the one that gets to the heart of the
applicability of the Constitution--the location of the target of
surveillance. The other questions reflect a common sense approach to
1978 technology that worked well then, but that today has unintended
effects. They are ancillary, if not irrelevant, to the more fundamental
issue.
Thus, in some cases, the location from which NSA seeks to acquire a
communication becomes a question clothed in undue significance. So,
too, the technology employed by the provider of the communications
service can in some cases be dispositive of whether the Government must
obtain a FISA order or not. We think this is far from what was intended
by the statute's supporters in 1978, and requires change.
Principally, the issue on which the need for a court order should
turn--but does not turn under the current FISA--is whether or not the
person whose communications are targeted is generally protected by the
guarantees of the Constitution. That question, in turn, is largely
determined by the location of the target. People inside the United
States who are the targets of electronic surveillance, regardless of
where the surveillance is conducted or what means are used to transmit
a communication, should be the only ones who receive the protection
afforded by court approval. At the same time, people outside the United
States who are not U.S. persons, again regardless of where the
surveillance is effected or the technology employed, should not receive
such protection. The FISA should be returned to what we believe was its
original purpose of regulating foreign surveillance targeting persons
in the United States, not the surveillance of non-U.S. persons overseas
who are not entitled to constitutional rights.
Moreover, the current FISA--at least in some places--already
recognizes this principle. As I have noted already, we think the most
significant factor in determining whether or not a court order is
required ought to be the location of the target of the surveillance,
and that other factors such as where the surveillance takes place and
the mode of communication surveilled should not play a role in this
determination. Significantly, this was recognized in the legislative
history of the current statute with respect to the first of the
definitions of electronic surveillance--the intentional targeting of
the communications of a U.S. person in the United States. We believe
the legislative history makes clear with respect to that definition
that when the communications of U.S. persons located in the United
States are targeted, the surveillance is within the scope of FISA
regardless of whether the communications are domestic or international
and regardless of where the surveillance is being carried out.\2\ The
same legislative history regarding that first definition of electronic
surveillance makes equally clear, however, that the statute does not
regulate the acquisition of communications of U.S. persons in the
United States when those persons are not the actual targets of the
surveillance.\3\
---------------------------------------------------------------------------
\2\ Id. at 50.
\3\ Id.
---------------------------------------------------------------------------
We think these principles, clearly and artfully captured in parts
of the legislation and in the legislative history, should extend to all
surveillance under the FISA. The need for a court order should not
depend on whether NSA's employees conducting the surveillance are
inside the United States or outside the United States, nor should it
depend on whether the communications meet the technical definition of
``wire communications'' or not. These factors were never directly
relevant in principle, but in the context of yesterday's
telecommunications infrastructure were used as a proxy for relevant
considerations. Today they are utterly irrelevant to the central
question at issue: who are the people deserving protection. Whether
surveillance should require court supervision ought to depend on
whether the target of such surveillance is located within the United
States.
In addition to changing the definition of electronic surveillance,
other changes are needed as well. For example, it is vitally important
that the Government retain a means to compel communications providers
to provide information to the Government, even in the absence of a
court order. It is also critical that companies assisting the
Intelligence Community in preventing future attacks on the United
States be insulated from liability for doing so.
Let me reiterate in closing that we believe the statute should be
updated to account for changes that have taken place in technology
since its initial passage. Furthermore, we think the appropriate way to
change the statute is to focus on constitutionally significant factors
that will ensure that the rights of U.S. citizens are protected, while
setting aside ancillary issues such as the technical means employed or
the location from which the surveillance was conducted.
Mr. Coble. Mr. Bradbury, you were an unfortunate
beneficiary of having gone first, but the gentleman from
California said you have an extra minute as well.
So you and Mr. Dempsey will be treated accordingly.
Mr. Alt.
TESTIMONY OF ROBERT D. ALT, FELLOW, LEGAL AND INTERNATIONAL
AFFAIRS, THE JOHN M. ASHBROOK CENTER FOR PUBLIC AFFAIRS,
ASHLAND UNIVERSITY
Mr. Alt. Thank you, Mr. Chairman and Members of the
Subcommittee.
As you begin to take up the potential legislation that's
been authored, there may be a temptation to wait for a judicial
determination of the NSA wiretap program. Let me implore you,
don't indulge that temptation. While the District Court
recently offered its opinion that the program is
unconstitutional, the court clearly erred with respect to the
question of standing and failed to properly apply Supreme Court
precedent which was directly on point.
It is extraordinarily likely that the District Court's
opinion will be reversed on appeal without the reviewing court
having to address any of the merits in the case. Given the
difficulty in establishing standing in this case in general and
against--in these sorts of challenges against FISA in
particular, the legal status of the NSA wiretap program is not
easily amenable or reducible to judicial determination.
Accordingly, it is necessary for the political branches to
regulate themselves, and therefore it is imperative for
Congress to take a fresh look at the FISA program.
Having determined that a legislative solution is necessary,
some of the proposed legislation this Committee is reviewing
today seeks to introduce FISA's requirements as the sole method
of conducting the NSA's surveillance program thereby
effectively terminating the program. While some seek to provide
the President with clear statutory authorization under FISA to
conduct the program itself, in deciding which course to take,
this Committee should be cognizant of two things: First, the
NSA wiretap program is needed, as a practical matter, to
address the emerging national security threats in a timely
fashion, and second, the program is consistent with the
constitutional requirements for the acquisition of foreign
intelligence surveillance.
Given the classified nature of the NSA program, the
witnesses testifying today from the DOJ and NSA will presumably
be better equipped to discuss the necessity for the Executive
Branch to maintain continued flexibility in how it performs
foreign intelligence surveillance. However, the need to
streamline and modernize the procedures required by FISA to
allow the Executive Branch to effectively combat the current
terrorist threat is readily apparent even without specific
knowledge of the program. Inevitably, while some changes were
made to the requirements for obtaining a FISA warrant after the
terrorist attack on 9/11, the process remains cumbersome and
subject to bureaucratic delay, a fact that the 9/11 Commission
noted in its fact-finding in which it specifically noted that
requests for such approvals are overwhelming the ability of the
system to process them and to conduct the surveillance.
Accordingly, the well-worn argument that FISA's procedural
barriers are light is belied by actual practice, and the
related claim that the Executive Branch need only submit all
requests for foreign surveillance to the FISA court turns out
to be unduly burdensome.
This leads naturally to the second point, a discussion of
constitutional considerations, because--notwithstanding the
desire of the Government to eliminate roadblocks of information
gathering--our constitutional system imposes burdens on such
practices in order to maintain a proper separation of the
powers and to safeguard civil liberties.
For example, in the context of criminal law enforcement,
the Fourth Amendment's general search requirement--subject, of
course, to exceptions--prior to the execution of a search is
one such barrier that will be placed on the Government.
However, the courts have consistently acknowledged that the
standard which the Government must meet in order to conduct
foreign intelligence surveillance and the President's authority
to conduct such surveillance are constitutionally distinct from
general criminal law enforcement.
A recent decision by the FISA Court of Appeals held that
the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence information
and suggested, further, that we take for granted that the
President does not--or has the authority and, assuming that is
so, FISA could not encroach on the President's constitutional
power.
This case is instructive concerning the scope of
Presidential power in the field of foreign intelligence
surveillance, and indeed the last sentence of this quote is
telling because it suggests that the Presidential authority is
sufficient in the context of foreign intelligence surveillance
even when the President's power is languishing at what Justice
Jackson famously referred to as ``its lowest ebb,'' that is,
when the President ``takes matters incompatible with the
expressed or implied will of Congress.''
Because reforming FISA is necessary to address emerging
threats to national security, and because instituting
procedures like those used in the NSA's wiretap program are
consistent with the constitutional requirements for foreign
intelligence surveillance, Congress should seek reforms to FISA
which provide the Executive Branch with the kind of flexibility
available to the Executive in the NSA program, while
maintaining adequate oversight to assure that the program is
administered within the limitations of foreign intelligence
surveillance.
In so doing, any legislation addressing FISA should seek to
meet the following objectives:
First, it should update the language of FISA to address the
changes in technology and modes of communication which the
former witnesses have already discussed.
Second, it should provide the President with the ability to
conduct foreign intelligence surveillance with fixed, renewable
periods of time without obtaining a FISA warrant.
And third, it should require renewals of the warrantless
surveillance program to be submitted directly to Congress,
preferably to the Intelligence Committees, in order to assure
that the warrantless surveillance is limited to foreign
intelligence surveillance while limiting the dissemination of
classified information about the program and reducing the
possibility of leaks.
The attacks carried out against the United States on 9/11
and our response to the new terrorists threats in the wake of
that tragic day have demonstrated weaknesses in our
intelligence gathering capabilities. Notable among these
weaknesses is the cumbersome process to obtain the FISA
warrants requisite to address intelligence opportunities
presented by an all too nimble enemy. By reforming FISA to
permit the necessary and constitutional use of warrantless
foreign intelligence surveillance renewable for fixed periods
of time, Congress can assure that the Executive Branch has the
tools it needs to address the 21st century threats while
providing the oversight necessary to assure that the program is
not abused.
Thank you, Mr. Chairman.
Mr. Coble. Thank you, Mr. Alt.
[The prepared statement of Mr. Alt follows:]
Prepared Statement of Robert D. Alt
Mr. Coble. Mr. Dempsey.
TESTIMONY OF JIM DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY
AND TECHNOLOGY
Mr. Dempsey. Mr. Chairman, Mr. Scott, Mrs. Harman, Members
of the Committee, good afternoon. Thank you for this
opportunity to testify at today's hearing.
I will focus most of my attention on the Wilson-
Sensenbrenner bill, because it is clearly the majority's
preferred bill in this Chamber and because I think it has been
the subject of inaccurate reporting, including in today's
Washington Post.
Simply put, the Wilson bill would permit the NSA's vacuum
cleaners to be turned on international and purely domestic
calls and e-mails of U.S. citizens. That is not modernization;
that is a major step backwards. If we are ever going to win
this war on terrorism, we need to focus our intelligence
agencies, not cut them loose from checks and balances.
The Wilson-Sensenbrenner bill would vastly expand the scope
of warrantless surveillance inside the United States, and we
would create a vast database of information on U.S. citizens,
which the Administration could datamine at will outside any
judicial or congressional oversight in a fashion reminiscent of
the Total Information Awareness program.
The Wilson-Sensenbrenner bill, in our view, is every bit as
dangerous as the Specter-Cheney bill. Both would authorize
broad, warrantless surveillance of U.S. citizens inside the
United States. Both would not only ratify the President's
program, but would authorize warrantless surveillance far
beyond what the President is doing. Both would make warrantless
surveillance the rule not the exception.
While the Wilson bill would nominally preserve FISA as the
exclusive means for conducting surveillance inside the United
States, it would exempt so much domestic gain from the act as
to effectively repeal FISA.
Now, in order to understand the impact of the Wilson bill,
it is necessary to appreciate that much of the weight of FISA
is carried by the definitions section, and for our purposes
today the most important definition is the definition of
``electronic surveillance.'' Under FISA, if the collection of
information fits within the definition of ``electronic
surveillance,'' it requires a court order or must fall under
one of FISA's exceptions.
If the collection of information is excluded from the
definition of ``electronic surveillance,'' then it is not
covered by the Act. It can be carried on without a warrant,
without reporting to Congress, without compliance with the
minimization requirement of the statute. And that is what the
Wilson bill does.
The Wilson bill takes the definition of ``electronic
surveillance,'' carves out large categories that the average
person would call wiretapping and places them outside judicial
and congressional oversight of the Act, outside the
minimization requirements, and outside other provisions of the
Act.
First, the bill would make the President's warrantless
surveillance program legal and exempt it from judicial scrutiny
by defining what the President is ordering as not to be
``electronic surveillance.'' Here I am referring to the
publicly admitted program of intercepting calls with one leg in
the United States and one leg overseas where the Government is
targeting suspected terrorists.
The bill says that targeting calls into and out of the
United States is not terrorism if you are targeting someone
overseas. The problem with that is--and the constitutional flaw
that I saw in that is--there are two parties to the call, and
one of them is in the United States and might be a citizen.
That person might be a journalist, it might be a relative, it
might be an aid worker, it might be some dupe, it might be any
number of kinds of innocent people, American citizens whose
conversations would be wiretapped without court order under
this bill.
Secondly, the bill would authorize a program of warrantless
surveillance far broader than what the President has been
conducting. The President has assured the American public that
his program is targeted against specific members of al-Qaeda
overseas calling into the United States.
The bill before you, the Wilson bill, would authorize
warrantless surveillance of all international calls, calls into
and out of the United States, by saying that if you are not
targeting someone, but if you are sweeping up everything, then
it is not electronic surveillance; therefore, it is outside the
coverage of the act.
So this means that under this bill, for the first time
ever, NSA would be able to train its vacuum cleaner on the
contents of all international calls, all e-mails that have a
recipient overseas, recording every single one so long as it
was not targeting a specific person in the United States. Then
they could go back to that database and target later and
extract whatever they wanted. That would not be considered
electronic surveillance under this bill.
Third, the bill would allow the vacuum cleaner of the NSA
to be turned on information concerning the purely domestic
calls of U.S. citizens. The bill would allow the NSA to scoop
up and would require the telephone and Internet companies to
turn over to the Government all records of all calls and e-mail
in the United States, purely domestic-to-domestic--not the
content of the calls--but to collect the information about
who's calling whom and to keep that information forever and to
analyze it and datamine it without any judicial approval.
Fourth, in its amendment to section 1802 of FISA, the bill
would go farther than the President has gone by allowing
warrantless surveillance of the content of domestic telephone
calls so long as it is, quote, ``solely directed at the
acquisition of the content of a foreign power or a person
suspected--a non-U.S. person suspected of being an agent of the
foreign power.''
Again, the problem is, many of those calls, domestic calls,
will have a U.S. citizen on one end of them. And so again we
will be intruding upon the privacy of U.S. citizens in the U.S.
making or receiving a domestic call, without court order.
And fifth, the Wilson bill would authorize surveillance of
purely domestic calls for a period of 45 days, renewed
indefinitely after a terrorist attack.
Mr. Coble. Are you about at the end of your line of your
extended time? If you could wrap up.
Mr. Dempsey. Yes. Mr. Chairman, I think we have before us a
complicated bill. It is hard to parse, and I heard Mr. Bradbury
say in his remarks that the Administration was planning yet
further suggestions on further changes to the bill, which says
to me this cannot possibly be marked up and dealt with in this
Congress. If--I think it's hard to understand this bill as it
is. The changes are sweeping, radical; and to have yet further
things in the works that will come in in conference or
something like that, or wrapped into some kind of omnibus, I
think is very dangerous in a time of war, when we have before
us a constitutional framework, and to start changing that so
radically I think is dangerous not only from a civil liberty
standpoint, but also from a national security standpoint.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey
Mr. Coble. We have been joined by the distinguished
gentlelady from California, Ms. Waters, and the distinguished
gentlelady from Texas, Ms. Sheila Jackson Lee. I did not
officially recognize the distinguished gentleman from
California, Mr. Lungren.
Gentlemen, we impose the 5-minute rule against us as well.
So if you could keep your questions short, we would appreciate
that.
Start my time, if you will, Beth.
The Foreign Intelligence Surveillance Court of Review in
2002 pointed out that, quote, ``All the other courts to have
decided the issue held that the President did have inherent
authority to conduct warrantless searches to obtain foreign
intelligence information,'' and further quoting, ``We take for
granted that the President does have that authority, and
assuming that is so, FISA could not encroach on the President's
constitutional power,'' close quote.
Was the Foreign Intelligence Surveillance Court of Review
correct when it said that FISA cannot encroach on the
President's constitutional authority?
Mr. Deitz, let me put that to you.
Mr. Deitz. I would defer to Mr. Bradbury, but I would
concur with that statement.
Mr. Coble. Mr. Bradbury, do you want to take the baton?
Mr. Bradbury. Yes, we do agree with that statement.
Statutes do not take away constitutional authority.
Mr. Coble. Both the Wilson bill and the Specter bill
attempt to streamline FISA.
Do you believe that is necessary that we further streamline
FISA, Mr. Alt; and why, if you do agree?
Mr. Alt. Once again, in some ways, I would defer on some of
the technological points to the DOJ and NSA representatives
here today, but I did note in the Wilson bill they did actually
clean up some of the language on some of the technological
components, and that, I would presume, is a step forward.
But streamlining the overall procedures in terms of getting
a warrant and permitting the President the flexibility to
obtain foreign intelligence surveillance without needing to go
through the onerous process of getting a warrant, particularly
after a time of war or attack on the U.S., I think is very
necessary.
I would also agree with the DOJ representative. My one
recommendation would be, I don't think that necessarily that
trigger should be based upon an attack on the United States. I
think that the President needs greater flexibility to be able
to anticipate attacks, anticipate potential attacks, and not
simply respond to those attacks once they have happened.
Mr. Coble. Mr. Bradbury, do you want the baton again to
extend on that?
Mr. Bradbury. Yes.
As stated in my testimony, Mr. Chairman, we certainly agree
that it is important to streamline the application process. We
don't need more lawyers in the process or more bureaucracy. We
need to streamline the process, make it more flexible, make it
more usable in the war on terror. And I think that is a very
important part of the legislation that Representative Wilson
has introduced and also that Senator Specter has introduced,
and it really is something that I know that the National
Security Agency has long been interested in.
Mr. Coble. Mr. Deitz, let me extend that a little bit.
Again, alluding to the Wilson and the Specter bills, both bills
change the definition of electronic surveillance. Do you agree
with that proposal and why?
Mr. Deitz. Yes, Mr. Chairman, we do. And, again, the reason
is that the 1978 FISA Act involved a certain set of
technologies, and those technologies have changed, and one of
the things that we would like, that NSA and analysts need, is a
technology neutral bill in which the FISA Act--amended FISA Act
gets to the point of Fourth Amendment protections, isn't tied
to a particular kind of technology. Yes, sir.
Mr. Coble. Now, Mr. Dempsey contends that the Wilson bill
and the Specter bill call for warrantless surveillance over
domestic--over both domestic and international calls. Do you
agree with that, Mr. Deitz?
Mr. Deitz. No. And I don't really understand--I don't
understand where that--how he is interpreting them that way.
What we have tried to do in working with Mr. Bradbury and
his folks and the CIA and so forth is to try to focus the bill
on--in the interest you are trying to protect. The only way you
can get a U.S. person in an unwarranted fashion is by an
intention to tap a foreigner, and if that foreigner happens to
be speaking to an American, then you do pick up that
conversation. However, that happens today and the procedures
are designed to what is called minimize those intercepts. So
there is nothing new about them. Minimization would continue to
apply under this legislation, under the Wilson and Specter
legislation.
Mr. Coble. Well, my red light is about to appear. Mr.
Dempsey, I will give you a chance subsequently if no one else
gives you a chance to elaborate on that.
The distinguished gentleman from Michigan, Mr. Conyers, is
recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman; and I thank all the
witnesses for being as helpful as they can. But let's just go
back to Mr. Deitz, who said he doesn't understand why Mr.
Dempsey would suggest that both under the Specter and Wilson
bills that warrantless wiretapping would be permitted in the
United States. Could you clear that up so that we can make sure
this record has got it straight?
Mr. Dempsey. Mr. Chairman, I was--the new definition of
electronic surveillance would say that for calls where one leg
is in the United States and one leg is overseas, that is calls
very likely involving a United States citizen, that a warrant
is not required, that it is not electronic surveillance if you
are targeting a person overseas. That is, you want to get--
initially, you are focusing on the target overseas, but you are
picking up the calls to the United States in the United States,
and you are, therefore, picking up, intercepting the calls of
U.S. citizens. Under the bill, that is defined as not being
electronic surveillance and does not require a court order. I
think that that should, because the rights of the American
citizen on the other end of that call are clearly at issue.
Mr. Conyers. I think that that to me is the very
uncontroversial understanding and implications of that
procedure.
But let me ask Mr. Bradbury this. Why can't we get FISA
orders under the current law? I mean, what is wrong with the
situation right now?
Mr. Bradbury. Congressman, are you referring to the
terrorist surveillance program----
Mr. Conyers. Yes.
Mr. Bradbury.--the President has authorized? In a word--two
words--speed and agility, the need for speed and agility. The
purpose of the program is to create an early warning detection
system when anyone associated with al-Qaeda--we have reason to
believe is a member or agent of al-Qaeda.
Mr. Conyers. What about 72 hours? That is not speedy
enough?
Mr. Bradbury. The 72 hours emergency authorization
provision still requires the Attorney General, before
surveillance can begin, to make a determination that all of the
requirements of FISA are met. So it requires a mini-FISA
approval process that goes up through layers of lawyers.
Mr. Conyers. But that isn't in the law. This self-imposed
bureaucracy of which you complain has not been put into the
law. And so what we have here is, after 25 changes in the FISA
law and many of them recommended by the Administration, you
still come to us saying that it is too long. Now, what about
extending the 72-hour emergency period to 5 days or to 7 days?
What do you think of that?
Mr. Bradbury. We think extending it to 7 days is a good
idea.
Mr. Conyers. Well, thank you very much. Because the Harman
bill, with Conyers attached on--as well, House Resolution
5371--does just three things that I hope doesn't raise any
quarrels with you.
It reiterates that foreign intelligence surveillance must
be conducted within FISA as written, including obtaining a
warrant whenever there is a possibility that a United States
person will be tapped; two, it allows the Administration to
make any internal procedural changes necessary to make applying
for a FISA order quicker and easy--easier; and, three, it
appropriates whatever funds are necessary to make sure the
Justice Department can seek as many court wiretapping orders as
they see fit.
Do you have any objections to any of those provisions?
Mr. Bradbury. Congressman, that legislation will not enable
the program to continue as it is currently operated if the
program were required to be maintained only under the
provisions of FISA as currently written, and we think simply
adding more lawyers and more bureaucracy is not--and more money
is not the answer for the need for speed and agility in this
program.
Mr. Conyers. So giving you more resources won't make it
speedier or work more effectively.
Let me turn to Mr. Dempsey to see if we can find out what
else the Harman-Conyers LISTEN Act might do to help facilitate
this. After all, we are going the extra mile. The only thing we
ask is that it is done within the FISA law; and you keep saying
that if we gave you all the lawyers we wanted, if we expedited
the procedure endlessly, it still wouldn't be so hot. We have
got to be able to go around the FISA law. What makes that so
important?
Mr. Coble. Well, Mr. Dempsey, if you could wrap up--the
gentleman's time is expired--you could wrap up, we have a lot
of questions remaining.
Mr. Dempsey. I would say at this time, Mr. Conyers, I have
always thought that the Attorney General authority for
emergency wiretaps could be downward delegated. It, in my view,
doesn't have to be personally exercised by the Attorney
General.
On my latest reading of the Wilson bill, I actually didn't
see that in the Wilson bill. Maybe I missed it. To me, that was
one of the changes that directly responded to what the
President has said was his problem, that it has to go all the
way up to the Attorney General personally and he personally has
to make the determination. I think that can be downward
delegated with some limitations.
The President has said it is still probable cause. The
President has said we are targeting individuals. At that point
there, you are meeting--you are targeting members of al-Qaeda.
At that point there, you meet the standards of FISA. You can go
to the court after the 72 hours or 5 days.
Mr. Conyers. Thank you so much. Thank you, Mr. Chairman.
Mr. Deitz. Mr. Chairman, could I just add a quick response
to Mr. Conyers' question?
Mr. Coble. Let me move along. I will get to you, Mr. Deitz,
before we go on.
In order of appearance, I recognize the distinguished
gentleman from Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Deitz, if you want to briefly respond, you can do it on
my time.
Mr. Deitz. Thank you very much. I appreciate that.
The problem with the 72-hour rule, as Mr. Bradbury said, A,
it is not a freebie. It is not you get to do whatever you want
for 72 hours. From the moment you want to put on an emergency
FISA, you need to have the wherewithal to create probable
cause.
My concern is not lawyer time, although that is precious
enough. My concern is analyst time, and the issue that most
concerns us is your counterterrorism experts and analysts do
not grow on trees. Every time I have got 5 or 10 or 15 or 20
counterterrorism experts working FISA factual issues, that is
time when they are not trying to stop the enemies of the United
States.
The second thing, if I may say so--and I appreciate your
indulgence--there is a notion that every time an American is
being intercepted, that is under FISA. That is simply not true,
and it is important that we not pretend it is true. Every day
we pick up lawfully conversations to, from or about U.S.
persons that are not under FISA warrant, and that nobody has
ever thought they ought to be under FISA. This is simply the
way the system was set up.
We are obligated to do what is a term of ours, is
minimization. That is, we take that information and put--take
it out of the intercept and put, bracket, U.S. person number
one, closed bracket, or U.S. person number two, and only in
unusual circumstances are those identities made known. So I am
just trying to eliminate this notion once a U.S. person is
involved all of a sudden there is a FISA warrant obligation.
There simply isn't.
Thank you, sir.
Mr. Chabot. Thank you.
Mr. Bradbury, let me turn to you, if I can. You had
mentioned in your opening statement the plot to blow 10 to 12
British airliners out of the air which was uncovered quite
recently. I think the whole world was focused on this and
rightly so, because an awful lot of lives, perhaps more than
were lost on September 11, were at risk, and this was, my
understanding, a very serious plot.
To the extent that we are able to discuss it in this
forum--and we obviously can't reveal secrets which might let
the terrorists understand how we acquire this type of
information--but could you just give us your opinion or perhaps
let us know--what we are talking about here today can sometime
become a good, esoteric--and may not be real relevant. But
could you tell us how what we are talking about here today
actually can affect something like that and how it may prevent
something like that from actually happening somewhere down the
road.
Mr. Bradbury. Well, Congressman, I can't talk about that
particular case, but I can say that, obviously, U.S.
intelligence experts, U.S. intelligence services cooperate with
the intelligence services of our allies around the world,
including the British, a key ally to the United States; and
this program is one program that enables our intelligence
experts to get some of the most valuable and current
intelligence information in real time. So to the extent it
contributes to our knowledge and to the extent our knowledge
can lend assistance to the intelligence efforts of our allies,
it is a critical part. It is a link in that chain.
Mr. Chabot. Okay, thank you.
Mr. Deitz, let me ask you, the idea that Mr. Dempsey was
talking about before, that, you know, sometime--he was saying
that sometimes both ends of this are domestic, when in fact it
is my understanding that we are talking about somebody here in
the United States and a terrorist-connected person in Pakistan
or Saudi Arabia or Afghanistan or somewhere else. And sometimes
you hear people that say, well, they are just using that excuse
that they are al-Qaeda connected. We really don't know that.
Could you touch on that and how in real life how that actually
is determined?
Mr. Deitz. I'd be glad to.
The first thing I'd say, Mr. Congressman, is we don't have
a vacuum cleaner at NSA and we haven't for years and years and
years. There is simply too many conversations, too many minutes
to vacuum. I think General Hayden testified at one point that
there are 2 billion minutes of long distance phone calls a
year. We simply don't have the resources to grab all that. So
the vacuum cleaner metaphor is simply not useful.
What we do--and this is all based on probable cause--I
assume we are speaking of the President's program, sir--always
based on probable cause. Do our analysts have probable cause to
believe that one end of a conversation is a member of al-Qaeda
or affiliate?
And those terms are robustly defined. That simply isn't a
decision of one person. There is a chain of command there.
There is a set of protocols that must be satisfied in order for
a shift supervisor to agree, yes, you have satisfied the
conditions to intercept this person. Once that intercept takes
place, the conversations--as I referred to earlier with the
time you gave me, those conversations are minimized so the U.S.
person part is removed if it does not have foreign intelligence
value.
Once all that happens, you know--and I don't want to bore
you--but there is oversight and compliance by the mission
people. There is oversight and compliance by the Office of
General Counsel, my office, and there is oversight and
compliance conducted by the Inspector General. So this is not--
this isn't simply Liberty Hall, sir.
Mr. Chabot. Thank you very much.
Mr. Coble. I thank the gentleman.
In order of appearance, the distinguished gentleman from
Massachusetts. I stand corrected. The Ranking Member from
Virginia--I overlooked him--Mr. Scott.
I will get to you soon, Mr. Delahunt.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Deitz, it has been mentioned several times that we
really don't know what you are doing at NSA. Can we get a clear
description of what is going on now before you would expect us
to consider any new law?
Mr. Deitz. Are you speaking about the President's
surveillance program?
Mr. Scott. All we know is what has been leaked to the
press. So we want to know before we change the law what is
going on under the present law.
Mr. Deitz. I am not in control of that decision. Certainly
we couldn't do this in public in public testimony.
Mr. Coble. Would the gentleman yield just a moment?
Thank you, Mr. Scott.
Mr. Deitz, I am just winging this now. I can appreciate the
sensitivity of some of this information--and I am thinking
aloud now. Mr. Scott, we may want to schedule a secret meeting
at some time. We can't do it today, but just chew on that for
the moment.
Now I recognize the gentleman from Virginia.
Mr. Scott. Reclaiming my time, there is no point in having
a secret meeting if they are not going to tell us any more than
they've told us already.
I yield.
Mr. Coble. Well, I will assume that more would be
forthcoming at a secret meeting, Mr. Deitz, am I correct?
Mr. Deitz. Mr. Chairman, what I can tell you is in a closed
session I could describe the shortcomings of FISA by chapter
and verse. What I cannot tell you--I cannot trump the
President's decision about who will or who will not be briefed
on the TSP.
Mr. Scott. I think that answers my question.
Mr. Dempsey.
Mr. Dempsey. I think we know enough on the public record.
The President has said, the Attorney General has testified,
General Hayden, who was one of the architects of the program,
testified in July before the Senate Judiciary Committee that
the President has authorized warrantless surveillance inside
the United States of calls that have one leg here and one leg
overseas where there is probable cause to believe that the
person overseas is a member or associate of al-Qaeda. That is
on the record. Now, normally, that would require a court order.
That is on the record.
Mr. Scott. Let me ask you while you are speaking, you
answered Mr. Conyers' question about the one leg overseas, one
leg over here. You also mention domestic and domestic would be
covered, too.
Mr. Dempsey. That is why I wish Mr. Chabot were here.
Because we are talking about two different things. We are
talking about the President's program, one leg here, one leg
overseas; and we are talking about the Wilson bill. The Wilson
bill authorizes the President's program and then goes farther,
much, much farther. One of the things it does, it says in its
amendment to section 1802 of FISA, for purely domestic calls a
warrant is not required if the Attorney General says we are
directing our activities solely at the communications of a
foreign power inside the United States, an embassy or a non-
U.S. person agent of a foreign power engaged in terrorist
activities inside the United States.
Again, the problem with that is these are purely domestic
calls where there is a high likelihood that the other person to
the call is a U.S. citizen. And certainly this has nothing to
do with--I mean, Mr. Deitz talks about what was the original
intent of Congress in 1978. There is enough water under the
bridge in both directions that there is limited value to
looking back to that. But this is one where Congress never
dreamed it was authorizing communications interception in the
United States without a court order where both parties were in
the United States and one of them is likely to be a citizen.
Mr. Scott. My time is almost up, and I wanted to ask Mr.
Deitz whether or not--when you make a decision to do a wiretap,
whether or not there is an individual assessment for each call
where you do categories--you said you are not doing a vacuum
cleaner?
Mr. Deitz. We are not doing a vacuum cleaner, correct.
Mr. Scott. Do you do an individual assessment before you
wiretap a conversation to ascertain whether or not the standard
has been met?
Mr. Deitz. We are speaking about the TSP.
Mr. Scott. I don't know what--we are playing 20 questions
now. I am not sure I am asking the question to get the right
answer. So just do the best you can.
Mr. Deitz. I will. The President's program, the program
that has been leaked to the press and then acknowledged by the
President, requires a probable cause determination that an
individual is a member of al-Qaeda or an affiliate. And, again,
those are precisely determined. So it is not a vacuum cleaner
pulling up everybody, for example, who lives in a certain city
or who professes a certain faith. It is not that. It is aimed
at an al-Qaeda affiliate or al-Qaeda----
Mr. Scott. That is the President's plan. Do we assume he is
not doing it, any wiretaps, without a warrant, without an
individual assessment?
Mr. Deitz. That is the program I am describing, yes, sir.
Mr. Scott. Is there another program? I mean, you are using
20 questions. We are trying to get around to, if I can ask the
right question, to target the right answer. Are you wiretapping
people without an individual assessment of probable cause that
they are a member of al-Qaeda or without a warrant?
Mr. Deitz. I can't answer that.
Mr. Scott. Well, if you can't answer that, then just say
you can't answer it.
Mr. Bradbury. Well, if I might just jump in, Congressman. I
think the President has made it clear that there is no other
program that involves domestic electronic surveillance of
domestic communications, and so the program that the President
has described is the only program along those lines.
And I need to point out one thing if I might, Mr. Chairman,
just very quickly just for the record. We have not publicly
acknowledged that the surveillance in this program would
constitute electronic surveillance under FISA as it exists
today. So we have been very careful not to do that. Our legal
analysis that we provided in the paper in January assumes that
that is the case for purposes of going through the legal
analysis, but we have not publicly acknowledged the method.
Mr. Dempsey. Correction. Everybody knows that it would be
electronic surveillance. But, anyhow, I accept the correction.
Mr. Coble. I thank the gentleman from Virginia, Mr. Deitz,
and then I will recognize the distinguished gentleman from
Arizona.
If I understood you correctly, in responding to Mr. Scott's
testimony you indicate even if we went into Secret session with
the Judiciary Subcommittee you still would be somewhat limited.
I assume that that limitation would not apply if you appeared
before the House and Senate Intelligence Committees and the
Democrat and Republican leadership.
Mr. Deitz. That is correct, Mr. Chairman.
Mr. Coble. So there would be no limitation there.
Mr. Deitz. Correct, your honor--or Mr. Chairman.
Mr. Coble. The gentleman from Arizona, Mr. Flake,
recognized for 5 minutes.
Mr. Flake. Thank you, Mr. Chairman.
And given just the short time, if you could keep your
answers--I have a number to get through.
Mr. Bradbury, if we were to pass the Wilson bill, would the
President stop the current program or do it all within the
Wilson language? What is your understanding?
Mr. Bradbury. Well, Congressman, I can't speak for the
President on a determination like that, so I can't say what the
President would do.
I would note--and I will try to be very brief. I would note
that there are difficulties with the current version of the
language. It talks about a 45-day period following an attack on
the country. It is not clear whether that would apply today, 5
years after 9/11. Whether that is the intent, that needs to be
clarified. And again we would say we shouldn't wait until the
Nation has been attacked to acknowledge whether the President
can do this kind of program.
Mr. Coble. I guess what I am asking is, what would prevent
the President from circumventing the Wilson language, given his
inherent powers that he claimed under Article II?
Mr. Bradbury. Well, the President is not interested in
circumventing statutes; and, as you know from our legal
analysis, we are not saying that the President has circumvented
any statute. We are saying the President has operated within
the authority provided in the authorization through the use of
military force which acknowledged and supplemented his
constitutional authority in this particular conflict, our armed
conflict with al-Qaeda. And, just focusing on that, the
President has acted to undertake surveillance of international
communications; and we view that as a supplemental authority to
the authority provided in FISA.
Mr. Flake. Mr. Deitz, you talked about minimization and the
importance of--for example, current law requires after 72
hours, I believe, that any information retained on individuals
who are not the target is dumped. Is that what you understand?
Mr. Deitz. Minimization applies to everything the same, not
just discovery on the order--I mean, taps on the orders.
Everything NSA does involves minimization.
Mr. Flake. And you are talking about that being important
about what you do.
Mr. Deitz. Yes, it is important.
Mr. Flake. Are you aware that the Wilson language actually
strikes those provisions which require that information
retained after 72 hours be disposed of?
Mr. Deitz. I am not aware of that.
Mr. Flake. Mr. Bradbury, do you have an answer to that?
Mr. Bradbury. I know that Representative Wilson's
legislation would extend the period to 5 days. We actually
think it should be 7. But I thought that it should retain
provisions that restricted the content of the information that
had been obtained if you don't subsequently obtain that order.
We actually think that is an area where further refinement is
important; and I would be happy to talk to you, Congressman,
separately about any particular aspect of the legislation.
Mr. Flake. Mr. Deitz, you talked about the problem with a
72-hour period is that it is tough to establish a probable
cause before a FISA court. Yet you said that every example of
NSA's surveillance under the current program involved an
analyst establishing probable cause. If you can establish it
within your agency, why can't you establish it before a judge?
Mr. Deitz. That is a very, very different proposition.
Analysts talk to each other. They do memoranda. They pass the
memoranda onto shift supervisors and so forth, but it is a
discrete number of people, all of whom, by the way, are
speaking the same language.
In order for us to go for an emergency FISA, the analysts
have to do their part. Then it has to go to our lawyers. Then
it has to go to a group of lawyers at the Department of
Justice; and then, ultimately, it has to go to the Attorney
General. In other words, we have to be prepared at the
beginning of that 72-hour period to present all this
information or ultimately to go to court with it, and that is
very different from doing this intramurally.
Mr. Flake. The frustration that we have had is we have had
these kind of hearings for, you know, ever since 9/11, and we
have not heard from the Justice Department or from NSA or
others what specifically--we always hear streamlining,
streamlining. Yet we never seem to hear what streamlining
means, and yet then we hear that the President can simply go
around it. So that is the difficulty that we are in here as a
Committee with oversight and with--I am troubled with the
Wilson bill, that it basically takes this Committee out of the
loop completely.
Mr. Deitz. Sir, FISA applications now are approximately \3/
4\ of an inch thick. That is paper producing. And if you are
doing it--as I have suggested in my testimony, if you are doing
it to prevent foreigner A or tried to protect the same sort of
rights of foreigner A communicating with foreigner B, I suggest
that that is simply a waste of that paper and effort and
analysts' time.
Mr. Dempsey. If I could just say, I have looked at far
fewer FISA applications than Mr. Deitz, but the ones that I
have looked at, most of everything after the first page or so
is boilerplate, and you read the first page and you know
whether it is probable cause or not. I don't know that they
need the boilerplate. I don't know in this day and age of
computers why production of boilerplate is such a difficulty
anyhow.
But I would say that, on your question of minimization,
FISA clearly says, information acquired from an electronic
surveillance must be handled pursuant to the minimization
requirements. And if you take the President's program and
define it as not being electronic surveillance, then it is not
subject to the minimization requirements under the act; and if
you take other things and define them as not being electronic
surveillance, then the minimization requirements by law don't
apply.
Mr. Deitz. That is simply not correct. We are obligated
under Executive Order 12333 before we do any--exercise any NSA
authority. Minimization procedures in place which we then use.
Mr. Coble. Gentleman's time has expired.
If you all will note that the Chair has been liberal today,
but I think this is an important issue, and we are not going to
run through it, but I hope the Members will keep in mind the
sensitivity of time.
Mr. Scott. Mr. Chairman.
Mr. Coble. Gentleman from Virginia.
Mr. Scott. I just wanted to make sure I heard what the
gentleman said. He is only limited by Executive Order, not by
statute, not by case law?
Mr. Deitz. What I am saying, sir, is we have an Executive
Order that obligates us to minimize.
Mr. Scott. That answered the question.
Mr. Coble. Finally, the distinguished gentleman from
Massachusetts, Mr. Delahunt.
Mr. Delahunt. Yeah. I was glad to hear that the Chairman's
become so liberal.
You know, I hear what you are saying, Mr. Deitz, and I
think you have to understand that there is a history in this
country--and I am sure you do, given your impeccable academic
credentials--we don't trust you. We trust you as an individual.
But I think what you are hearing here today is, you know,
an echo of American history regarding the relationship between
the branches. There is no oversight going on. You can establish
a protocol that has a variety of mechanisms to ensure that
statutes and Executive Orders are not being violated, but it is
intramural, as you say. This is not--you know, in democracy, it
is varsity ball. It is not intramural. And we are an
independent branch of Government. So I think that is the core
issue. Because what you are saying here is Democrats and
Republicans, conservatives and liberals, saying that is not
sufficient, that is not sufficient.
Now, in a previous career, I used to do a lot of court-
authorized wiretaps; and I read your testimony, and I hear what
you are saying and the precious time and the paper. With all
due respect, you know, there is close to 1,800 applications,
none of which have been denied, I think, in a single year. You
know, my colleague and friend from Arizona I think makes a very
good point.
By the way, the President--you are talking about the whole
issue of probable cause and refining that and it not being
necessarily an ingredient in this. I mean, the President in the
public statement, and I think you just said it, he has no issue
with probable cause when it comes to al-Qaeda. So I think we
can take that off the table.
But in terms of speed and agility, I have to tell you I
just can't buy and accept, based on my own experience, that
particular argument. I mean, I am sure that you've knocked some
agent or somebody from the Department of Justice has knocked on
the door of some FISA judge at 3 a.m. and, after a 15-minute
conversation, it is approved. I mean, that is the real world.
That is the real world. And if we need more analysts, then we
should have more analysts. That I suggest is a real problem.
Mr. Deitz. May I respond?
Mr. Delahunt. Of course. But I have a question for Mr.
Bradbury, so try to be concise.
Mr. Deitz. I will be very quick. There is clearly a
difference between criminal law and foreign intelligence
collection----
Mr. Delahunt. I understand that.
Mr. Deitz.--and in terms of where it rests within the
constitutional framework.
Mr. Delahunt. I understand that.
Mr. Deitz. And, by the way, if we are 2 days late serving a
search warrant on a criminal, we may have blown a case. If we
are 2 days late to getting a wiretap on a foreign intelligence
context, we may have a disaster.
Mr. Delahunt. I understand that. But that goes to the
question that was posed by Mr. Conyers. What do you need? There
is nobody here on this panel that won't give you the tools that
you need. Whether it is 7 days, 14 days, let's discuss them. We
are not going to hold hostage the American people. That is for
sure. Everybody here wants to destroy al-Qaeda and affiliates.
That is a given. Okay? But how do we do it without betraying
the Constitution? Because if we go down that road--we hear a
lot about Hitler and fascism these days. That is the
beginning----
Mr. Bradbury, you indicated that you were--you'd consider
amendments and suggestions and you want to work with Congress.
Is that a fair statement?
Mr. Bradbury. Absolutely, Congressman.
Mr. Delahunt. Can I ask you something? Have you drafted
legislation?
Mr. Bradbury. We have provided a lot of suggestions.
Mr. Delahunt. But that is not my question. Has the
Administration drafted legislation for consideration based upon
your understanding of what your needs are? Can you just give
me----
Mr. Bradbury. We have not drafted and submitted
legislation.
Mr. Delahunt. Then I think--you know, I have to tell you,
it is--when I hear that, I feel like I am being played with.
You have many, you know, I think legitimate concerns that can
be addressed; and I would challenge the Administration and the
White House and the President to come forward with a piece of
legislation that this Committee, sitting as the Committee of
jurisdiction, can review.
It is far too late. It is my understanding back on June 21
the Wexler resolution of inquiry was passed. We haven't heard
anything. And, you know, you talk--you are talking a good game,
but you are not delivering. That is the problem that I have.
Now, we can play this out. We all know it is 9 weeks to an
election, okay? And I am not so naive to think that politics
isn't, you know, involved here. I am not suggesting you or any
of the panelists--but if you want to do something real, then
come forward with a document that we can debate and argue.
You are here. Everybody is eloquent in terms of their
testimony. There are legitimate concerns. I think we can get it
done. It is incumbent on the Administration to see that we have
something before us that we can debate. It is the President
that isn't playing fair and square with this Congress.
I yield back.
Mr. Bradbury. Mr. Chairman, may I----
Mr. Coble. Very briefly.
Mr. Bradbury. The President does want to work together with
Congress on this issue. The President has indicated that we do
support Chairman Specter's legislation, wants to see it move
forward. He has also said that we see positive things in
Senator DeWine's legislation and also in Representative
Wilson's legislation.
We do want those to move forward. We don't want them to be
stymied. We would like to see something that resolves this
issue in a legislative way where the branches are working
together.
In that spirit, I would say that, as you know, I think both
Intelligence Committees of the House and the Senate are fully
briefed into the program and have been conducting very
intensive, very intensive oversight of the NSA program; and I
would dare say I think it is the most scrutinized,
legislatively scrutinized program perhaps in the history of the
NSA. So there is very extensive work being done, good work
being done by the Intelligence Committees of Congress.
Mr. Delahunt. Mr. Bradbury, I am not denying that. But what
I am saying, let's bring this forward in something that the
American people can review.
This Committee will be the primary Committee of
jurisdiction, or at least concurrently. I see Ms. Harman has
left. But, in any event, have the Administration come forward,
if you have concerns, and then we can take them up. We have
been delaying this for a period of time, the concerns that are
expressed by all of those that are what I would call parties of
interest. I think it is up to the Administration.
Mr. Coble. Gentleman's time has expired.
The distinguished gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you, Mr. Chairman.
I would just ask unanimous consent to have half the time
Mr. Delahunt had today.
Mr. Delahunt. Objection.
Mr. Lungren. Boy, that is a boatload from my friend from
Massachusetts. We have worked together on legislation because
of our concerns about the two branches of Government, but, boy,
bringing in Hitler and the bundestag and fascism and reference
to the Administration I think is a bit much here today.
I wish we had an easy answer to this. I hearken back to the
language of Justice White in his concurring opinion in the Katz
decision, which was one of the seminal opinions dealing with
privacy in the context of search and seizure; and, as he said,
wiretapping to protect the security of the Nation has been
authorized by successive Presidents. The present Administration
he is talking about at that time would apparently save national
security cases from restrictions against wiretapping. We should
not require, he said, the warrant procedure and the
magistrate's judgment if the President of the United States or
his chief legal officer, the Attorney General, has considered
the requirements of national security and authorized electronic
surveillance as reasonable.
And it just strikes me that in this program that we are
discussing the President has followed the suggestion of Justice
White and specifically had his hands-on review of this program
and the Attorney General--and maybe it is not so easy to say it
could be delegated downward, if you believe in what Justice
White has said.
Here's the conundrum I have. I happen to think the
Constitution under Article II does give the President certain
authority; and it has been historical, I would say to my friend
from Massachusetts, that successive Supreme Courts have
recognized that the President of the United States has unique
capability and authority in the area of gathering information,
dealing with the enemy. In fact, it has been extended beyond
wartime situations in terms of foreign intelligence of all
types.
Now, given that fact, I look at what can we do
legislatively. I think it is so easy for us to talk to the
American people and talk to the cameras and say, well, the
President's violating the law because he is not following FISA.
I wish it were that simple.
It was the Attorney General for the Carter Administration,
Griffin Bell, who, in testifying on behalf of the Carter
Administration in support of the FISA Act, specifically stated
that it was the position of the Carter Administration that the
FISA Act did not in any way nor could it encroach on the
President's constitutional authority under Article II.
Now we can say we don't like to follow the Constitution.
Maybe we think the Supreme Court doesn't follow the
Constitution at times, but I hope we would be consistent with
our oath to the Constitution.
So does that mean we can't do anything? No. I look and see
that the powers we have--I mean, the most extreme power is the
power of impeachment, but short of that is the power of the
purse. And that is where we can, in fact, stop the President
from doing some things; and it seems to me that is what
Congress can do in a situation like this. So the question is if
we construct legislation that gives Congress the information
such that it could make the judgment if it wanted to exercise
the power of the purse.
So that goes to the question of how do we want to be
informed? And we have set up in the Congress, in the House, a
program where issues of this nature, whether we like it or not,
being on the Judiciary Committee, are the prime responsibility
of the Intelligence Committee; and that is sort of where we
find ourselves here.
So, try as we might, it seems to me in some situations we
can construct legislation for the preferred process that the
President should follow, but I think we are straining in the
face of the Constitution to say we can do it such that we will
limit the President's otherwise existing constitutional power
here.
That is the difficulty that I am under. There are certain
things I'd like to do to restrict the Administration. If I look
at the Constitution I don't think I can do that, so my point is
how do we construct a methodology whereby the Administration--
not only this Administration but future Administrations are
most likely to follow that procedure, number one.
Number two, how do we avoid confusing, as Mr. Deitz has
said, the expectation of privacy concept that we find in the
Constitution? Do we extend it to everybody around the world? Do
we extend it to anybody and everybody because somehow we
believe that our sense of justice is an appropriate one for
American citizens and therefore should we extend that to those
who would do us harm in the war on terror?
I know my time is almost up. Let me ask Mr. Dempsey this.
Mr. Dempsey, first of all, do you believe that we are, in
fact, in a war? And, number two, if we are, does the President
have certain inherent powers under Article II in the gathering
of information? And, number three, if the program is as it
exists, that is the one we are talking about, that everybody's
talking about, the specific program to listen in on al-Qaeda,
if it is as it has been suggested even though it does include,
as Mr. Deitz said, conversation by someone here in the United
States because the other part of the conversation--is that
unconstitutional in your view?
Mr. Dempsey. Congressman, to some extent we are in a war. I
don't think that the war reference or the war concept covers
everything that is going on. There is, obviously, law
enforcement aspects as well.
I think the President does have powers to collect
intelligence in times of war against foreign adversaries, even
not in times of war. However, I do think those powers are
shared powers, like all of the President's war powers are
shared powers, and that constitutionally Congress has the
authority to pass laws regulating the exercise of the
President's powers.
In terms of constitutionality, I think that we have come
far enough in our understanding of the Fourth Amendment to say
that the best way to guarantee constitutionality of a search
inside the United States is to have a judicial warrant; and I
think it is unwise, I will simply say, to push that farther.
Now the bottom line, Congressman, I think you raise a good
point, and where it leads me to is, for now, you should do
nothing. That is, the current system--in my view, the current
situation of warrantless wiretaps, close congressional
oversight, warrantless wiretaps are narrowly focused, as the
President has said, where there is probable cause to believe
that a member of al-Qaeda or an associate is on the phone: That
is far better than the Wilson Bill.
The Wilson Bill goes far beyond that and would cut
congressional oversight, not increase it. Because the way the
oversight process works, oversight is required only for things
that are electronic surveillance. If it is not electronic
surveillance, then you are back to sort of the power of the
purse and the push and tug, which is where we are now.
So I would say, let the situation go on. It is not a pretty
picture, but it is certainly better than the Wilson bill.
Mr. Coble. The gentleman's time has expired; and, for the
record, I will say to the gentleman for California, you
received as much time as Mr. Delahunt did. So you all are even.
Mr. Lungren. I only got it once, though.
Mr. Coble. The distinguished gentlelady from California,
Ms. Waters.
Ms. Waters. Thank you very much.
Mr. Chairman and Members, I think the concerns that I have
basically been raised over and over again. One is this: I do
not understand how we could even consider any of the bills that
are being proposed to make changes as it relates to foreign
intelligence surveillance given what little information we have
from the Administration about the problems, what are the
problems with the way the law is constructed now. A lot of
work, a lot of time, a lot of attention have gone into
constructing a law that balances the need for information and
protection of the Fourth Amendment in the Constitution.
Let me ask Mr. Bradbury, were you involved in advising the
President in any way when he decided to undermine the
Constitution of the United States of America? Were you a part
of the team of people that talked with him about what he was
doing? Did he seek your advice?
Mr. Bradbury. Well, Congresswoman, I was not in the
Department of Justice when the program was initiated in 2001.
Ms. Waters. Who was? Who did you hear was there to advise
him? What do you know about this?
Mr. Bradbury. Well, I think the Department of Justice under
the Attorney General is--the Attorney General is the officer
under our laws that provides legal advice to the President, to
the Executive Branch.
Ms. Waters. You think the Attorney General--he sought the
advice of his Attorney General and he advised him that he
could, in fact, proceed with warrantless surveillance, is that
right?
Mr. Bradbury. Yes, Congresswoman. As the President has
described it, he sought legal advice, including from the
Department of Justice, at the time this program was initiated
and was advised that the program was lawful and consistent with
the Constitution.
Ms. Waters. And again you may have done this already, but
could you quickly describe to me how it is consistent with the
Constitution of the United States?
Mr. Bradbury. Absolutely. I will try to be very, very
brief.
Ms. Waters. Yes.
Mr. Bradbury. We have set it forth at length in a paper
that we have provided to Congress, made public. The President
has long been recognized to have authority under Article II of
the Constitution to take actions to protect the country,
including in the area of electronic surveillance. That is an
authority presidents have exercised in wars from the beginning
of the Republic, including, for example, in World War II and
World War I when Presidents Franklin Roosevelt and President
Wilson----
Ms. Waters. Does not the Foreign Intelligence Surveillance
Act of 1978 describe how he is to do that?
Mr. Bradbury. Well, we would actually--I actually believe
the Foreign Intelligence Surveillance Act does not fully
address the question of what happens in time of war. It has a
provision in there about declarations of war, which to me makes
it clear that Congress intended----
Ms. Waters. When did the Justice Department discover that
the Foreign Intelligence Surveillance Act of 1978 was
inadequate?
Mr. Bradbury. Well, I think what we are talking about is a
different paradigm from FISA surveillance. We are talking about
a wartime program to detect enemy communications. So we are
really talking about a different paradigm, and we think
authorization for the use of military force that Congress
passed in the days after 9/11----
Ms. Waters. All encompassing and it takes care of anything
the President would like to do?
Mr. Bradbury. No, Congresswoman. Absolutely not. But it
does focus with the particular conflict we are engaged in with
al-Qaeda and makes it clear that the President does have all
those traditional authorities necessary and appropriate----
Ms. Waters. I am sorry I had to interrupt you. We only have
so much time. Attempt to describe why the President of the
United States believes he can ignore the Constitution of the
United States and the Fourth Amendment.
But I am going to use my last few seconds to simply say
that this is another bungled action by the Administration in
the so-called war on terror. Unfortunately, Mr. Chairman and
Members, the President has failed to provide quality leadership
as he has executed the so-called war on terror, mistake after
mistake after mistake, and has got us to the point where we are
now--where our soldiers are caught in a civil war that this
Administration will not admit, caught between the Sunnis, the
Shiites and the Kurds, with people dying every day, civilians
and soldiers.
In addition to that, we are losing in Afghanistan. We are
threatening to go to war, I guess, with Iran and Syria.
I mean, we cannot take you seriously; and if, in fact, his
Attorney General and this Department of Justice is advising
him, then you and Rumsfeld and all the rest of you guys really
should have to go.
There is a lot of talk about calling for Mr. Rumsfeld's
resignation again and again and again, but the fact of the
matter is you should all hang your heads in shame for the way
that you have mismanaged this so-called war on terror. The
people of this country do not deserve to have the Constitution
undermined in the way that the President is doing it. And to
then have the audacity to tell us that the President has the
right to do it, despite what we are guaranteed by the
Constitution and the Fourth Amendment, somehow make this
fallacious argument----
Mr. Coble. The gentlelady's time has expired.
Ms. Waters. I have more to say, but I respect that my time
has come.
Mr. Coble. Mr. Delahunt, I have known for some time you are
a formidable legislator, but you have more muscle in your arm
than I realized. Because you expressed earlier concern about
the Department of Justice's response to our inquiry some weeks
ago. It was delivered today to Chairman Sensenbrenner and to
Congressman Conyers. So I commend you, sir.
Mr. Delahunt. I appreciate that commendation, Mr. Chairman;
and it does, I guess, demonstrate that there is muscle over
here.
Mr. Coble. Distinguished gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman; and I am hoping my 5
minutes will be stretched into 10 as some of our colleagues
across the aisle will be allowed.
Mr. Coble. I will continue to be liberal.
Mr. Gohmert. But, in any event, I'd have to address some of
the comments that were just made. Anybody who wants to blame
this President and Don Rumsfeld and his Attorney General for
the acts of terrorism that are occurring against our Nation has
to also blame Bill Clinton for 9/11. You've got no choice.
Because 9/11 we know unequivocally was planned and almost
completed, all preparation, during his presidency. So if you
are going to blame George Bush and Don Rumsfeld, it is time to
hang 9/11 on Bill Clinton.
The fact is Bill Clinton did nothing to deserve 9/11 being
plotted as it was during his presidency. If you look at his
commitment of troops, they were most often to protect Muslims.
If you look, he was the most friendly toward Palestinians of
any of the Presidents we have had. He did not deserve to have
9/11 plotted and planned during his presidency as it was, but
it was because since 1979 war has been going on. We just didn't
know we were at war. They knew that we were at war. They were
at war against us, as the attack in 1979, 1984, 1993, on
through the 1990's showed. So we are at war. It is just that,
after 9/11, we only now realize that we are.
The question is, what do we do from here? You can play the
blame game and say, well, this was Bush's fault or Rumsfeld's
fault and 9/11 obviously was Bill Clinton's fault. I don't
think any of those acts of blame apply.
So I had to get that out. But let me get to the panel and
thank you for your patience with our little bickering up here,
because we do have some very similar concerns in some areas.
Something I want to hit on is something that we have
discussed in areas of the PATRIOT Act, FISA, some of these
surveillance programs, data mining. I will go back to a concern
that was raised years ago when I read Chuck Colson's novel. It
was regarding an idiot that blew up an abortion clinic.
Somebody was killed, so the Attorney General basically declared
war on churches where pro-life was being preached. That gave
the Government a basis to go in, do surveillance, whatever they
wanted. Everything was okay because this was considered a
terrorist activity because churches were preaching pro-life and
somebody blew up an abortion clinic.
So I keep coming back to that scenario, and I told Attorney
General Gonzalez when he was testifying there at the table
where y'all are that, you know--of course, this was before the
breach of 219 years of precedent and respect for article 1,
sections 5 and 6, but I told him that I was not concerned about
him or this Administration, but I wasn't sure about future
Administrations. So we had to be concerned about the existence
of authority to do things that we did not anticipate.
I had concerns in the PATRIOT Act because it referenced
that certain things could be done by our intelligence people if
it was believed there was a foreign intelligence component or--
and it was a big or--clandestine intelligence activities.
Mr. Gohmert. And I thought I was throwing the Attorney
General a softball to ask has there been any surveillance of
any kind based solely on it being a clandestine intelligence
activity without any foreign component, because most of us
don't have any problem--we don't believe it violates the
Constitution to surveil foreign to foreign, foreign with any
type of terrorist links to domestic. We don't have problems
with that. But when you bring in an all-domestic component, I
start having concerns. And I thought I was throwing up a
softball, and then the Attorney General danced all around
without giving a straight answer.
So I want to come back and try to get a clear answer as to
whether anyone here knows of any warrantless surveillance that
is authorized in domestic-to-domestic calls through--whether it
is the NSA, the FBI, anything of that nature--through either
the PATRIOT Act, FISA, or the President's own acts and
determinations. Does anybody know of anything that authorized
domestic purely on the basis of being a clandestine
intelligence activity?
Mr. Bradbury. Congressman, I am not aware of any. And I
believe that the President did make it clear, as I indicated
earlier to Congressman Scott, that there isn't any domestic-to-
domestic communications being listened to without court order,
pursuant to the President's authority. And I would just point
out that the Keith case, the United States v. United States
District Court, the Supreme Court in the Keith case addressed
questions of domestic security surveillance as opposed to
foreign intelligence surveillance, whereas you point out there
is no foreign power component at all, and concluded in that
case the warrant was required. So I am not aware of anything
such as you described.
Mr. Deitz. I hope I can equally give an unambiguous no.
Mr. Gohmert. That is what I was looking for. I thought I
would get that from the Attorney General. But then shortly
after that, we found out there was data mining going on
domestic-to-domestic, and then that raised concerns that
perhaps if there is data mining going on, perhaps there is a
little further intrusion into actual communications. But you
are both saying that answer is no, correct?
Mr. Deitz. Correct.
Mr. Gohmert. And, Mr. Alt, earlier you looked like when my
colleague was asking questions that you were ready to give an
answer, and I want to make sure you have a chance if there was
something you wanted to interject earlier that you didn't get a
chance to.
Mr. Alt. I appreciate that. I have sort of a couple of
comments based on Congressman Lungren and what Congresswoman
Waters had to say.
I think that we need t
