ELECTRONIC SURVEILLANCE MODERNIZATION ACT
=======================================================================
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
ON
H.R. 5825
__________
SEPTEMBER 12, 2006
__________
Serial No. 109-131
__________
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
----------
SEPTEMBER 12, 2006
OPENING STATEMENT
Page
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California, and Member (acting Chair),
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
WITNESSES
Mr. John Eisenberg, Deputy Assistant Attorney General, Office of
Legal Counsel, U.S. Department of Justice
Oral Testimony................................................. 5
Joint Prepared Statement....................................... 7
Mr. Vito Potenza, Acting General Counsel, National Security
Agency
Oral Testimony................................................. 14
Joint Prepared Statement....................................... 7
Ms. Kate Martin, Director, Center for National Security Studies
Oral Testimony................................................. 14
Prepared Statement............................................. 15
Mr. Bruce Fein, Principal, Bruce Fein & Associates
Oral Testimony................................................. 18
Prepared Statement............................................. 20
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....................................................... 49
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 50
ELECTRONIC SURVEILLANCE MODERNIZATION ACT
----------
TUESDAY, SEPTEMBER 12, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:10 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Daniel
E. Lungren (acting Chair) presiding.
Mr. Lungren. The Subcommittee will come to order.
Yesterday marked the fifth anniversary of the terrorist
attacks that killed nearly 3,000 Americans. As we remember the
loss of our fellow citizens, a recurring question is raised
regarding whether America is safer today than it was on
September 11, 2001.
The fact that we have not had an attack since 2001 on U.S.
soil is something we can all be thankful for. One commentator
called it the best-blessed nonevent that we have seen in the
last 10 years. Whatever, this is certainly more than just a
matter of luck.
Recent revelations in the press and by the Administration
itself indicate the extent to which they have acted to protect
the American people from another event of such cataclysmic
proportion, and the Congress has acted in aid of the
Administration over these last 5 years as well. However, this
is not the sole question we should ask.
Safer does not mean that there is any room for complacency
as the events in Bali, Madrid, Oman others, including London on
7/7, indicate we are still at war with an enemy that is fully
devoted to one thing; that is the murder of innocent people.
In this regard, it is a primary responsibility of
Government to protect its citizens from violence. Understanding
this, Congress must ensure that the law enforcement and the
intelligence communities are equipped with the proper tools to
fight a 21st century war against an enemy which operates by
stealth and surreptitious means.
This Congress has already acted to provide law enforcement
and intelligence officers with enhanced capability through the
enactment of important legislation like the USA PATRIOT Act,
Homeland Security Act and Intelligence Reform Act. Now we need
to streamline the FISA process and make it technology neutral.
These are the express goals of H.R. 5852, the Electronic
Surveillance Modernization Act. Today we will hear testimony on
the bill and suggestions for possible improvements to the
legislation in order to achieve these goals.
Also I would mention that Members of the full Committee
were able to attend a closed briefing earlier this afternoon on
this subject. Many Members took advantage of that opportunity
to participate and ask questions; and it is as a result of
that, we are starting this hearing a little bit later than it
was noticed for, and for that I apologize, but we needed to
have an opportunity for Members to return and also for several
members of our panel time to get here as well.
I look forward to the constructive suggestions our
witnesses will offer on how to improve FISA so that we may meet
the new challenges posed to our Nation by the specter of
terrorism and by the fact of advances in technology.
With that, I am privileged to recognize the Ranking Member
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. And I appreciate your
holding an additional hearing on this important issue affecting
our traditional notions of rights, liberties and protections
from Government intrusions into our private affairs in the
context of secret surveillance without the benefit of court
approval or review.
One reason I feel that we need to hear more about the
impact of the pending legislation is because I feel that we are
in the absolute dark about what the legislative--about what the
legislation affects.
Let me be clear, the primary problem confronting Congress,
in my view, is the issue of whether we are performing our
constitutional oversight responsibilities when we do not hold
the Administration accountable to following the process we set
up for conducting surveillance involving American citizens in
America. If there is some difficulty with the procedures, we
would expect the President to bring those to our attention and
work with us in our attempt to address them just as we have
done with the USA PATRIOT Act bill and the 25 amendments to
FISA that we have passed since 9/11/2001.
We do not expect the President to ignore the laws that are
passed and enacted because he considers them inconvenient or to
set up his own secret process around the laws that he only
reveals when he is caught, declaring that he is following his
own set of laws and procedures he wrote pursuant to powers he
declares upon himself under the Constitution. I find it
insulting and disingenuous to our system of laws and procedures
for someone to suggest that it is inconvenient for the
President to comply with the laws when they require obtaining a
warrant or court order.
If he is doing what he has chosen and indicates he is
doing, that is, surveilling only al-Qaeda members and those who
act with them, then obviously a FISA court order could be
obtained. Consequently, I am left to wonder whether the real
reason the Administration does not submit the matter to the
FISA court is because of concerns that the available
information would not justify a warrant.
The problem is, we don't know, and I believe our oversight
requires us to know and ensure the American people that the
President's surveillance activities are within the rule of law.
If the rationale of the legislation, if it were amended, is the
hope that the President will find them enough to his liking to
actually use them, then he doesn't--and when he doesn't choose
to keep his actions in complete secrecy, I am not clear on the
need or the desirability of the legislation. In other words, if
the legislation does not control the parts of the TSP affecting
American citizens in America, then what is the point of this
legislation? I think our Founding Fathers would be shocked to
learn that we had created an unbridled power in the President
to secretly conduct surveillance involving Americans in America
without the approval of courts. And I do not believe the courts
will find that he has that authority.
So I certainly do not want to see legislation that would
purport to establish or recognize such a power in the
President, but I fear the bill before us does. And even if we
were sure that the legislation required the President to
conduct a domestic surveillance pursuant to it, I would be
concerned about the broad loopholes it creates in taking
currently covered surveillance activities outside of FISA
through redefining what constitutes, quote, ``electronic
surveillance.''
I would also be concerned with what we mean by provisions
in the bill as to what constitutes an armed attack triggering a
warrantless 60-day window. Was the attack on the American
embassy in Syria this morning an armed attack that would
provoke a 60-day warrantless period in this country?
And I also want to know what is meant by a ``terrorist
attack'' in the bill which invokes potentially endless renewed
45-day warrantless periods. Would it include attempts or
conspiracies to launch a terrorist attack? If not, why not? And
was the recent plot discovered in Great Britain to blow up
planes headed for the United States such a terrorist attack?
Those are just a few of the problems I have with the bill
in the context under which we are considering it. We do not
have in any recommendations, specific recommendations, from the
Administration one way or the other. And so we are left with
the idea that if we take up the bill tomorrow, as we are
presently scheduled to do, we can assume that we will pass
something, not knowing what the implications would be. The bill
would be rewritten at some point in the procedure, and we would
be stuck--as we were with the PATRIOT bill, having reported a
bill with unanimous vote in Committee and then, hot off the
press, have to consider something else entirely different on
the floor of the House.
So, Mr. Chairman, I look forward to the testimony of the
witnesses and hope they can at least let us know what is going
on today, so we know what we are dealing with and how we can
perhaps deal with the few glitches there may be without broad-
scale overhaul of the FISA in a way that we don't know what we
are doing.
Thank you, Mr. Chairman. I yield back.
Mr. Lungren. I thank the gentleman from Virginia. I was not
here when we passed the original PATRIOT Act, so I can't
comment on that. But I think I will put you down on as
undecided on the bill before us.
It is the practice of the Subcommittee to swear in our
witnesses appearing before it, so if you would please stand and
raise your right hand.
[Witnesses sworn.]
Mr. Lungren. Please let the record show that each of the
witnesses answered in the affirmative.
I am sorry, Mr. Conyers, who is the Ranking Member of the
full Committee, is recognized for any statement he would wish
to make at this time.
Mr. Conyers. I want to thank Chairman Lungren and just ask
unanimous consent to put my statement in the record.
Mr. Lungren. Without objection.
Mr. Conyers. And I just want to make a point.
It has not been--first of all, I want to subscribe to what
Ranking Member Scott has said, particularly with reference to
the lack of time that we are having to get this matter worked
out. I think that the time line is going to be very difficult
for us to make, and I will probably be seeking the Chairman of
the Subcommittee and the full Committee's approval that we work
out something different from a disposition within the next 24
hours, which might be pretty hard to do.
Now, the question is whether we can refine the Foreign
Intelligence Surveillance Act or do we need to gut it in order
to make the objectives that we most generally say that we want
to make here?
The Committee is handicapped by the fact that after 9
months, when we learned of the warrantless surveillance
program, that we haven't done much about inquiring into its
appropriateness, legality or how we deal with it, so that
coming into this as quickly as we are, it is a pretty difficult
task.
And so, in conclusion, I think the lesson of the last 5
years is that if we allow intelligence, military and law
enforcement to do their work free of legislative oversight, if
we give them requisite resources and modern technologies, we
want them to connect the dots in a nonpartisan manner, we can
protect our citizens.
Let's fight terrorism. But we need to fight it the right
way, consistent with our Constitution and in a manner that
serves as a model for the rest of the world. And I am not sure
that the major legislative proposal that we have before us
meets that test.
And I thank the Chairman for allowing me to intervene.
Mr. Lungren. I thank the gentleman.
[The prepared statement of Mr. Conyers is published in the
Appendix.]
Mr. Lungren. All Members are informed that any opening
statement they would like will be made a part of the record.
And I welcome our witnesses to this legislative hearing on H.R.
5825, the ``Electronic Surveillance Modernization Act.''
We have four distinguished witnesses with us today. Our
first witness is Mr. John Eisenberg, Deputy Assistant Attorney
General with the United States Department of Justice's Office
of Legal Counsel. Mr. Eisenberg was appointed to his current
position this past March. Prior to joining the department, he
clerked for the Honorable Judge Michael Luttig of the Fourth
Circuit and for Supreme Court Justice Clarence Thomas in 2003.
Mr. Eisenberg obtained his undergraduate degree from Stanford
University in 1991, his law degree from Yale University Law
School in 2001.
Our second witness is Mr. Vito Potenza, the Acting General
Counsel at the National Security Agency. Prior to joining NSA
Mr. Potenza was staff attorney for the District of Columbia
Public Defender Service. He began his career with the NSA in
1980 as a principal litigation attorney, and until recently was
assigned the position of Deputy General Counsel, a role he has
filled since 1993; served as a key advisor to the Director and
senior staff in the Agency's efforts to combat global
terrorism. Mr. Potenza's contribution to the NSA and the
Department of Defense have been recognized by Presidential Rank
Award, and the Secretary of Defense Medal for Meritorious
Civilian Service, graduated cum laude from Union College in New
York with a degree in political science, and received his law
degree from Georgetown University Law Center.
Our third witness is Ms. Kate Martin, Director of the
Center for National Security Studies. In addition to her 14
years at the center, Ms. Martin has taught strategic
intelligence public policy at the Georgetown University Law
School, and also served as General Counsel to the National
Security Archive Research Library at George Washington
University. She is the author of numerous articles and was
awarded the Eugene Pulliam First Amendment Award in 2005 by the
Society for Professional Journalists.
Ms. Martin graduated cum laude from Pomona College, and
received her J.D. from the University of Virginia Law School.
Our final witness is Bruce Fein, principal of Bruce Fein &
Associates and The Litchfield Group. He has held several
positions with the Department of Justice, served as Assistant
Director of the Office of Legal Policy, Legal Adviser to the
Assistant Attorney General For Antitrust and the Associate
Deputy Attorney General. He has been a Scholar with the
American Enterprise Institute, Heritage Foundation, a lecturer
at the Brookings Institute, and Adjunct Professor at George
Washington University. Additionally, he was Executive Editor of
World and Intelligence Review, a periodical devoted to national
security and intelligence issues. Mr. Fein graduated Phi Beta
Kappa from the University of California at Berkeley and cum
laude from Harvard Law School.
As you may know, our procedures here in the Subcommittee
are to have statements by our panelists of 5 minutes. I'll try
and keep you close to that, and then Members will have
opportunity for questions. Your prepared remarks will be, in
their entirety, placed in the record, and we will ask you to
make your statements in the order in which you received them
with Mr. Eisenberg going first.
Mr. Eisenberg.
TESTIMONY OF JOHN EISENBERG, DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Eisenberg. Thank you, Chairman Lungren, Ranking Member
Scott and Members of the Subcommittee. We appreciate the
opportunity to appear before you today to discuss proposed
revisions to the Foreign Intelligence Surveillance Act of 1978,
or FISA.
Yesterday, our Nation remembered the horrific attacks of
just 5 years ago, the single deadliest foreign attacks on U.S.
soil in our Nation's history. On that day 5 years ago, we
recognized what our enemies had known long before 9/11: We were
at war.
Although we have done much to make America safer, our enemy
is patiently waiting to strike again. We must never forget
this, and together we must strive to do everything in our power
and within the law to see that it never happens again. At the
same time, of course, we must steadfastly safeguard the
liberties we all cherish. We believe that we can reframe FISA
to serve both of these goals better.
We have been asked to return today to address the
Committee's specific questions about H.R. 5825, and we are
pleased to do so. We have outlined additional specific concerns
in our written testimony, and in the interests of saving time,
I will highlight a few of these points here.
We think we can protect national security and civil
liberties at the same time, and any FISA amendments should be
geared to this end. Specifically, we think that we can redefine
electronic surveillance to exclude certain categories that are
currently within the statute and that this would streamline
things. We think we can streamline applications so that the
Foreign Intelligence Surveillance court receives the
information it needs to make decisions, but that does not
overly burden the executive branch in getting it that
information.
We think that certain types of agents of a foreign power
should be added to the list in FISA. We think that a provision
such as section 8 modified for programs should be available.
And we think that any package that addresses the problems we
currently face should address litigation management because of
the litigation we face today.
We look forward to your questions.
Mr. Lungren. Thank you very much.
[The prepared statement of Mr. Eisenberg follows:]
Joint Prepared Statement of John A. Eisenberg and Vito T. Potenza
Mr. Lungren. Mr. Potenza.
TESTIMONY OF VITO POTENZA, ACTING GENERAL COUNSEL, NATIONAL
SECURITY AGENCY
Mr. Potenza. Congressman Lungren, Ranking Member Scott,
Members, I do not offer a separate statement. We join the
statement that was submitted by Mr. Eisenberg in the Department
of Justice.
I believe the comments offered last week by Mr. Deitz
covered the groundwork, and I would be pleased to answer any
additional questions.
Mr. Lungren. And I understand you are here instead of Mr.
Deitz because since he last testified before us and went under
the grilling of Mr. Scott, he is no longer in that position; is
that correct?
Mr. Potenza. That's correct, sir.
Mr. Lungren. Actually, he has moved on to another position
working for General Hayden; is that correct?
Mr. Potenza. Yes, sir.
Mr. Lungren. All right.
[See page 7 for joint prepared statement.)
Mr. Lungren. Ms. Martin.
TESTIMONY OF KATE MARTIN, DIRECTOR,
CENTER FOR NATIONAL SECURITY STUDIES
Ms. Martin. Good afternoon, Chairman Lungren and Ranking
Member Scott. I want to thank you for the opportunity to
testify here today, and I confine my remarks to a couple of
basic points.
First, I would like to second the testimony that you heard
last week from the Center for Democracy and Technology, but
today talk specifically about H.R. 5825, the Wilson bill that
is before you, and make the first point that the bill would
radically amend the Foreign Intelligence Surveillance Act and
eliminate the basic framework of that statute.
The many changes in the bill are very complicated. It is
difficult to understand them, and I don't think we have had an
adequate explanation from the bill's sponsors or the
Administration of how the changes would actually work and what
they are intended to do.
Nevertheless, it is clear that the bill would create such
large loopholes in the current warrant requirements that
judicial warrants for secret surveillance of Americans'
conversations and e-mail would be the exception rather than the
rule.
First, I want to make clear that I don't think that we have
heard yet any problems identified by Administration witnesses
that would justify such a wholesale rewriting of the statute.
The two basic problems that have been referred to are the
timing issue that the Attorney General talked about when he was
asked to testify and that can be addressed by streamlining
extra resources, a much more narrow fix than is contained in
this bill.
And the second specific problem that was identified by Mr.
Deitz last week was that foreign-to-foreign communications that
happen to travel through switches or facilities in the United
States and are intercepted in the United States are thereby
subjected to the FISA warrants requirement.
We agree that communications between foreigners located
overseas are not subject to the fourth amendment, and if it
should happen that they are available for interception in the
United States, no FISA warrant should be required. That is a
fix that can be easily drafted, we believe, and there is some
language to that effect.
That is not the fix that the Wilson bill is addressed to.
Instead, it contains basically at least two radical changes to
the FISA. The first is that it would radically expand the
exception in the FISA that allows the Attorney General to
wiretap individuals inside the United States without a warrant.
The current law allows the Attorney General to wiretap what
are basically foreign embassies without obtaining a warrant.
That is an exception that we have always supported. The Wilson
bill would expand that exception to allow the Attorney General
to wiretap literally millions of individuals in the United
States without a warrant and without any determination that
they are suspected of terrorism, espionage or sabotage. And,
obviously, in wiretapping those millions of individuals inside
the United States, the NSA would be enabled to seize millions
of conversations between those noncitizens and citizens and
U.S. persons inside the United States.
Secondly, the bill would enable the NSA and the Government
to vacuum up conversations between Americans and individuals
overseas as long as the interception was not targeted at a
particular individual in the United States.
So, for example, the bill specifically anticipates that if
the NSA turned on its machines to seize an entire stream of
communications between New York City and Israel, for example,
that that interception would not be covered by the warrant
requirement of FISA. It then permits the Government, after it
has seized those millions of communications, to use a
surveillance device, quote, unquote, to then select individual
communications from that stream and target individual, named
Americans who have been--over a part of that stream, and listen
to their communications without a warrant.
We believe that these amendments and this approach is
unnecessary. It has not been justified as to why they can't go
to the court; and most fundamentally, it violates the fourth
amendment's requirements of both a judicial warrant and that
there be individualized probable cause that individual that the
United States Government wants to listen to is engaged in some
kind of wrongdoing.
Thank you.
Mr. Lungren. Thank you very much.
[The prepared statement of Ms. Martin follows:]
Prepared Statement of Kate Martin
We would like to second the testimony that has previously been
provided to you by the Center for Democracy and Technology on the NSA
surveillance and FISA generally. Today, I would like to make four
points about H.R. 5825, the ``Electronic Surveillance Modernization
Act'' introduced by Reps. Wilson, Hoekstra and Sensenbrenner and
others.
First, the bill is not focused on and is not a fix for those
problems identified by the Attorney General and other administration
officials in testimony before the Congress concerning the justification
for the warrantless surveillance being conducted by the NSA.
Second, the bill instead would radically amend the Foreign
Intelligence Surveillance Act and eliminate the basic framework of
FISA. The many changes in the bill are complex and it is especially
difficult to understand how they all work together. Neither the
administration's witnesses nor the bill's sponsors have explained its
operation in any detail. Nevertheless, it is clear that the bill would
create such large loopholes in the current warrant requirements, that
judicial warrants for secret surveillance of Americans' conversations
and e-mail would be the exception rather than the rule.
Third, the changes in the bill would gravely threaten individual
liberty and privacy and pose new risks to important counter-terrorism
efforts. As described in more detail below, the warrantless
surveillance of Americans' communications that would be authorized by
the bill would clearly violate the Fourth Amendment and the data-mining
that would be authorized by the bill would constitute an additional
grave threat to everyone's privacy. Allowing broad surveillance diverts
scarce counter-terrorism resources from focusing on individuals for
whom there is reason to believe that they are engaged in terrorist
plotting and instead encourages the government to spend valuable
resources data-mining on millions of innocent Americans.
In addition, the bill threatens to destroy the basic framework of
FISA, which has been accepted by courts as an appropriate and
constitutional method for conducting secret surveillance of Americans.
FISA ``embodies a legislative judgment that court orders and other
procedural safeguards are necessary to insure that electronic
surveillance by the U.S. Government within this country conforms to the
fundamental principles of the fourth amendment.'' S. Rep. No. 95-701,
at 13 (1978). Before 9/11, FISA surveillance was universally upheld by
the courts against legal challenges. Since the announcement of the
President's decision to conduct surveillance outside the bounds of FISA
and without judicial warrants, three district courts have rejected
government claims defending the surveillance. Eliminating the
constitutional grounding and certainty found in the FISA, by radically
amending it, leaves government intelligence officers at personal risk
and jeopardizes potential criminal convictions based on such
surveillance.
Fourth, as others have pointed out, Congress is being asked to
legislate about Americans' most basic liberties, while being kept in
the dark about the surveillance. While the administration swears that
they are not listening to domestic-to-domestic calls without a warrant,
we do not know whether they did do so for some period after 9/11. We do
not know whether they still have those communications if they did. We
do not know whether there are other programs, which involve listening
to Americans' overseas communications without a warrant, where one of
the parties to the calls is NOT an Al Qaeda suspect. Finally, we do not
know--although there is every reason to suspect--whether the government
is gathering all the addressing/to/from information on millions of
communications, including domestic to domestic communications: who
called whom, when, and for how long. We do not know how such
information is being data-mined and collated with the vast amounts of
information otherwise available to the government to create giant maps
of Americans' associations as part of massive computerized dossiers on
millions of individuals.
1. H.R. 5825 IS NOT A RESPONSE TO THE PROBLEMS IDENTIFIED BY
ADMINISTRATION OFFICIALS.
Various administration spokesmen have referred to various problems
in FISA that interfere with important intelligence-gathering. The
Attorney General first claimed that the process of getting a warrant
took too long; now there are references to technological developments
and the use of disposable cell phones; Mr. Deitz spoke last week of the
requirement to get a FISA warrant in certain circumstances even when
the communications being intercepted involved a foreigner overseas
talking to another foreigner overseas. Although he failed to explain
why that was the case, it is clear that the FISA requires a warrant
when the communication is seized in the US, no matter where the
communication is traveling to and from. In recent years, more and more
international to international communications may be randomly routed
through switches in the US and if the NSA seizes the communications at
those switches rather than off international satellites, the law
technically requires a warrant.
However, H.R. 5825 does not address these identified problems
(except by eliminating most of the FISA warrant requirements for all
communications.) If these are indeed real problems, each of them is
fixable by targeted legislation that leaves the Fourth Amendment and
its warrant requirement intact. The Harman-Conyers bill would
streamline the FISA process and provide more time to obtain a warrant;
the Congress just amended the FISA to address disposable cell phones in
the Patriot Act; and the foreign-to-foreign problem could be fixed by
narrowly targeted legislation addressing the interception of such
communications in the United States.
2. CONGRESS STILL HAS AN INCOMPLETE PICTURE OF THE SURVEILLANCE AND ANY
EXISTING DIFFICULTIES.
At the same time, it is clear that the administration is being less
than forthcoming about the warrantless surveillance and what problems
it may be encountering under FISA. When the Attorney General first
testified, he did not mention the foreign-to-foreign problem. That
problem has presumably been around since before 9/11 and no one has
explained why the administration did not seek a fix for it in the
Patriot Act. In addition, Representative Harman and Senator Feinstein,
who according to the administration, have been fully briefed on the
program, have both said that they believe the program could function
under FISA. Indeed, if the President's description is accurate, the
Attorney General could simply go to the FISA court and request the
orders required by federal law.
Perhaps most importantly, it seems clear, as I outlined at the
beginning, that we do not know whether there are other programs, in
addition to the Terrorist Surveillance Program described by the
President, operating outside the law. The fact that administration
witnesses keep mentioning new problems, which don't appear related to
that program--like the foreign-to-foreign problem--while failing to
submit draft legislation to fix any problems, raises serious questions.
In this context, the breadth of the warrantless surveillance that
would be authorized by both H.R 5825 and Senator Specter's bill, which
has been endorsed by the Justice Department, raises disturbing
questions about the breadth of the actual surveillance, that either was
conducted in the past or is planned for the future, even if not ongoing
at present.
3. H.R. 5825 WOULD MAKE WARRANTLESS SURVEILLANCE THE EXCEPTION RATHER
THAN THE RULE.
H.R. 5825 would radically amend the definition of ``electronic
surveillance'' to eliminate surveillance of many communications of
individuals in the United States from the protections of the Act. It
would radically rewrite the provision giving the Attorney General
authority to conduct warrantless surveillance of foreign embassies in
order to allow warrantless surveillance of millions of individuals in
the US. It would provide for unlimited and unchecked warrantless
surveillance and secret physical searches after attacks on the United
States. Finally, it would also eliminate the requirement that the
government obtain a FISA court order before using pen register or trap
and trace devices to capture real-time call information showing what
numbers or addresses were called. It would allow the government to
capture such information about virtually everyone in the US and use it
to map their associations and contacts.
4. THE WARRANTLESS SURVEILLANCE THAT WOULD BE AUTHORIZED BY H.R. 5825
FUNDAMENTALLY VIOLATES THE FOURTH AMENDMENT.
While the President has claimed ``inherent authority'' to violate
the existing prohibitions in FISA on warrantless surveillance,
eliminating those statutory prohibitions will not cure the
constitutional infirmity of such surveillance. The Fourth Amendment is
clear that a judicial warrant is required for interception of
Americans' communications and that such warrant must be based on
individualized probable cause of wrong-doing. Such protections are of
course even more critical, where as in the case of FISA surveillance,
the individuals surveilled are likely never to know that the government
has taped their telephone calls, e-mails, private conversations or
searched their houses and copied the contents of their computer hard
drives and photographed their papers.
While the administration argues that surveillance is necessary to
counter the threat from Al Qaeda, a claim with which we agree, it makes
no showing why such surveillance need be conducted without a judicial
warrant. Again, such a warrant is especially crucial, where there is
unlikely to be any after-the-fact judicial review of the surveillance
because it will be kept secret. The Department of Justice cites Courts
of Appeals cases upholding warrantless surveillance, but all of those
cases dealt with pre-FISA surveillance. See United States v. Truong,
629 F.2d 908, 916 (4th Cir. 1980); United States v. Butenko, 494 F.2d
593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th
Cir. 1973). And in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975)
(en banc), a plurality of the D.C. Circuit rejected the notion that
electronic surveillance for foreign intelligence activities can be
conducted without a warrant.
With the establishment of the FISA court and FISA's provisions for
secret warrant application procedures and permanent secrecy, the
rationale for allowing warrantless searches disappeared. Moreover, even
the pre-FISA cases upholding warrantless surveillance did so only when
the Attorney General had personally determined that there was probable
cause that the target of the surveillance was an agent of a foreign
power. See United States v. Truong, 629 F.2d 908, 916 (4th Cir. 1980).
Where that determination had not been made by the Attorney General, the
surveillance was held unconstitutional and the court suppressed
evidence from a search that had not been so approved. In the case of
the Terrorist Surveillance Program, the Attorney General has made no
such determination. Likewise, H.R. 5825 would authorize massive
surveillance with no warrant and not even any individualized
determination of probable cause by the Attorney General.
The NSA claims that the program is constitutional, because there is
oversight through its Inspector General's office and notification to
members of the Intelligence Committees. But the Fourth Amendment's
requirements of probable cause and judicial approval are not optional
protections to be replaced by Executive Branch procedures at the
Executive Branch's option. The essence of the constitutional protection
for individual liberties is the division of powers among all three
branches of government, so that all power over an individual would not
be concentrated in the hands of the Executive Branch. The requirement
of probable cause for government intrusions into individual liberty
found in the Bill of Rights may not be superceded by rules promulgated
by the administration of the day. H.R. 5825 seeks to do away with these
bedrock constitutional protections.
Mr. Lungren. Mr. Fein, please.
TESTIMONY OF BRUCE FEIN, PRINCIPAL,
BRUCE FEIN & ASSOCIATES
Mr. Fein. Mr. Chairman and Members of the Committee, I am
honored to testify here today.
You mentioned at the outset, Mr. Chairman, the devastations
of 9/11. And I think the proponents of the legislation today,
representing the Justice Department, urge that we be alert to
the need to defend ourselves against the al-Qaeda and other
international terrorists that have no ground rules that would
shield any of us from potential attack. But there is also, I
think, something to be learned from a similar attack, December
7, 1941, Pearl Harbor.
In the aftermath of that devastation, which was then, I
think, the most damaging to the United States, there was
undertaken in response to the alarm the internment of 120,000
Japanese Americans, all of them loyal, based upon nothing but
fear and bigotry against persons of Japanese ancestry. It was
an act that was ultimately apologized for by this Congress in
the Civil Liberties Act of 1988.
Now, I just suggest that analogy to remind the Committee
that the executive branch can sometimes get it wrong, that
unchecked power is inviting abuse.
It can be said that today we don't have any clear evidence
that the warrantless surveillance program of the NSA has
produced anything like the massive violations of civil
liberties after Pearl Harbor. But you all remember that the
Church committee hearings in the 1970's revealed undisclosed,
massive violations, that had been persistent for 20 years, by
the FBI and the CIA intercepting international telegraphs,
misuse of the NSA in diverting their mission from intelligence
collection to law enforcement that had been concealed and
unknown for decades.
Just because we don't know there are abuses that are on the
front pages of the New York Times and Washington Post doesn't
assure us that they aren't ongoing; you don't know what is
being done with the information collected, what the
minimization procedures are. And I simply alert this Committee
of these possible dangers to suggest that the Administration
must shoulder, in my judgment, a very strong burden to suggest
that we need extraordinary measures that depart from the
customary rules that we have operated under with the Foreign
Intelligence Surveillance Act ever since 1978.
That is a long period of time. Over 30 years.
The Wilson bill that you are examining today is tantamount
to a repeal of FISA because of the exemptions of the warrant
requirement every time the President certifies that there has
been an attack, a terrorist attack, against the United States.
Now, I would suggest, Mr. Chairman and Members, there will
not be a day from now for at least 10 years where one of our
soldiers in Iraq or Afghanistan or elsewhere around the world
will not be the target of a terrorist attack. It occurs every
day, and the President simply makes that certification every 45
days and the warrant requirement is ended. It is the equivalent
of ratifying the President's warrantless surveillance program
that obtains at present.
There is another element of the Administration's testimony
that seems to me worrisome. As you well know, in earlier rounds
that the Congress has held the Administration has taken the
position that article 2 of the Constitution empowers the
President to conduct a program irrespective of any statute that
Congress enacts, including the Wilson bill. That particular
theory of constitutional power has not been repudiated by the
Administration before this Committee or any other. The gist of
their position then is whether or not this Committee enacts the
law. It doesn't have to obey it anyway because its article 2
power supersedes whatever Congress can do.
It seems to me, therefore, it would be grossly remiss for
this Committee not to inject in any bill that regulates foreign
intelligence collection a clear assertion that Congress does
enjoy power under the necessary and proper clause to regulate--
not eliminate, but to regulate--the President's authority to
gather foreign intelligence.
Now let me quickly turn to the burden that the
Administration says has been satisfied to show why we need to
abandon the Foreign Intelligence Surveillance Act. It simply
says, well, it doesn't do the job without giving any particular
reasons. As recently as July 31, 2002, this same Justice
Department told the Senate Intelligence Committee that FISA as
amended by the PATRIOT Act and other statutes was nimble,
flexible and didn't need any reform. Indeed, the Department
opposed a relaxation of FISA, saying it would create
constitutional problems in addressing a proposal by Senator
Mike DeWine.
Now, there has been no indication since July 31, 2002, in
any public statements by the Administration, that anything has
changed with regard to the operation of FISA. It seems to me
obligatory on the Administration to show with specifics--it can
be done in executive session or otherwise--that the warrantless
surveillance program for 5 years has been able to gather
critical intelligence that could not have been gathered under
FISA; not only that, that it could not have in a secret session
proposed amendments to FISA to address any shortcomings.
In my judgment, the most dangerous element of this whole
exercise is this insistence by the Administration that checks
and balances can be abandoned, that we can simply resort to
single executive branch Government in the war against
international terrorism because there is fear out there that
can be exploited politically to suggest anyone who would want
any regulation that is weak on terrorists.
That would set a precedent, as Justice Robert Jackson once
said, that lies around like a loaded weapon ready to be used by
any other future President who wants to violate a congressional
statute. If there comes a sequel of 9/11 that happens here, the
fear and alarm that will be created will invite a President to
do just that.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
Mr. Chairman and Members of the Committee:
I am grateful for the opportunity to testify in opposition to H.R.
5825, a bill that would emasculate the scope and checks and balances of
the Foreign Intelligence Surveillance Act of 1978 (FISA) without any
benefit to the national security.
The Bush administration has made no showing that FISA is deficient
in gathering foreign intelligence to defeat international terrorism.
Indeed, on July 31, 2002, Bush's Justice Department effused to the
Senate Intelligence Committee that FISA was nimble, flexible, and
optimal in thwarting terrorism in the bud. Neither the Bush
administration nor the 9/11 Commission has adduced any evidence that 9/
11 might have been foiled if the President had then enjoyed unfettered
power to spy on American citizens on American soil. And during the five
years since President Bush's commenced the National Security Agency's
warrantless domestic surveillance program in violation of FISA, no
convincing evidence has been forthcoming that a single terrorist plot
or incident was foiled but would have succeeded if FISA had been
followed.
Moreover, President Bush has continued to conceal from Congress
intelligence programs that have not been leaked to the media. It would
be irresponsible for Congress to legislate in an ocean of ignorance.
Further, H.R. 5825 neglects to challenge President Bush's claim that he
is crowned with inherent Article II authority to ignore any law enacted
by Congress that purports to restrict in any way his ability to collect
foreign intelligence, including restrictions on mail openings, breaking
and entering homes, electronic surveillance, or torture. If Congress
accepts that White House claim, then any FISA legislation, including
H.R. 5825, will be meaningless.
In lieu of H.R. 5825, Congress should prohibit the President from
expending any monies of the United States to gather foreign
intelligence except in conformity with FISA. Brandishing the power of
the purse will concentrate the mind of President Bush wonderfully on
disclosing to Congress facts and reasons that might demonstrate a
genuine need to amend FISA for national security purposes as opposed to
political optics in anticipation of November's elections.
I. BACKGROUND
The history of unchecked power is a history of abuses and tyranny.
Unchecked power occasioned the Magna Charta, the English Bill of Rights
of 1688, the Declaration of Independence, the United States
Constitution, and the Bill of Rights. The crown jewel of the
Constitution--the separation of powers--confirms the Founding Fathers'
belief, like Lord Action, that power corrupts, and absolute power
corrupts absolutely.
That conviction has been corroborated by the history of unchecked
domestic and foreign intelligence spying by the President as disclosed
by the Church Committee and sister congressional committees: two
decades of illegal mail openings by the FBI and CIA; two decades of
illegal interceptions of international telegrams by the twin spy
agencies; seven years of misuse of the NSA for non-intelligence
gathering purposes; COINTELPRO; OPERATION CHAOS; massive files on
political dissidents. Nothing is more common in the history of spying
than the ready conflation of political opposition with subversion or
treason, and government attempts to suppress dissent by generating an
aura of intimidation or fear of retaliation.
FISA provided a measured response to the alarming abuses of
unchecked spying by the executive branch. Its constitutionality was
incontestable. FISA accepts that the President enjoys inherent power to
gather foreign intelligence. But Article I, section 8, clause 18
entrusts Congress with authority to regulate any power conferred on any
branch of government--legislative, executive, or judicial. FISA
circumspectly regulated the NSA's authority to target American citizens
on American soil who were suspected of terrorist activities. But the
statute by no means either eliminated or crippled the President's power
to gather foreign intelligence. Indeed, FISA leaves all but a crumb of
foreign intelligence collection outside its ambit.
As Mr. Robert Deitz, General Counsel of the NSA, testified on
September 6, 2006: ``[B]y far the bulk of the 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 . . . 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 intelligence activities, and to my knowledge no serious
argument exists that it should.'' In other words, President Bush's
signature hypothetical misrepresents FISA. If Al Qaeda is calling from
abroad and an American picks up the phone in the United States, FISA
does not require the NSA to stop listening.
Generally speaking, FISA applies only to that sliver of the NSA's
foreign intelligence activities that target American citizens on
American soil. FISA does not prohibit such targeting, but simply
requires the Attorney General to obtain a warrant from a FISA judge
based on probable cause to believe the American citizen is a lone
terrorist or acting as an agent for a foreign power or foreign
terrorist organization. The warrant threshold is not troublesome. Since
the enactment of FISA, approximately 20,000 warrants have been sought
and all but a handful approved. Further, FISA provides a 15 day window
for spying without a warrant in the aftermath of war and a 72 hour
window in cases of emergencies. No evidence has been adducted
indicating that in countries like Great Britain or France whose
intelligence agencies are unrestricted by an equivalent of FISA are any
safer or superior in foreign intelligence collection than is the United
States. In sum, it would be preposterous to assert that FISA
unconstitutionally compromises the President's ability to collect
foreign intelligence and protect national security.
II. NO NEED TO FURTHER AMEND FISA
FISA has been amended several times since 9/11, for example, to
tear down the wall between intelligence and law enforcement, to extend
the emergency exception to 72 hours, and to bring lone wolf terrorists
within its scope. It speaks volumes that H.R. 5825 is naked of even one
finding suggesting a need for additional amendments. In other words,
the bill's sponsors have been unable to articulate any deficiencies in
the existing statute.
III. H.R. 5825 EFFECTIVELY REPEALS FISA
As a practical matter, Section 8 of H.R. 5825 repeals FISA and
endows the President with virtually untrammeled power to intercept the
communications of every American on his say-so alone. Section 8
eliminates FISA's warrant requirement for electronic surveillance
whenever the President certifies that the United States has been the
subject of a terrorist attack, and, identifies the terrorist
organizations or their affiliates believed to be responsible. But for
the indefinite future, the United States will daily be targeted by
terrorists in Iraq and Afghanistan. Indeed, some American will be
targeted by some terrorist somewhere in the world every day for the
foreseeable future. Section 8 stipulates that the persons targeted by
the warrantless electronic surveillance should be reasonably suspected
of communicating with the responsible terrorist organization. But the
executive branch will invariably find that its own suspicions meet that
benchmark. For example, during the five years of the NSA's warrantless
domestic surveillance program there is no evidence that any supervisor
at the NSA or Department of Justice prevented a single electronic
surveillance because of too weak a suspicion that the target was
implicated in terrorism.
H.R. 5825's attempt to limit spying on Americans is toothless. It
declares that warrantless electronic surveillance must cease after 90
days unless a four-fold presidential certification is made to Congress.
The certification can be easily satisfied: that the surveillance is
vital to national security; that it is too difficult or burdensome to
seek a FISA warrant; the facts justifying the belief that the target is
implicated in terrorism; and, the foreign intelligence collected by the
warrantless surveillance.
Other provisions in H.R. 5825 are troublesome, for example,
relaxing minimization requirements and exempting emails almost entirely
from FISA's reach. But they pale in comparison to the evisceration of
FISA under the ``terrorist attack'' exception.
IV. WHY SHOULD CONGRESS CARE?
Congress might ask why it should be worrisome that the President be
given unchecked power to spy. A common refrain is that if you have
nothing to hide you should welcome government spying on yourself.
The answer is that the right to be left alone from government
intermeddling is the one most cherished among civilized men, as Justice
Louis Brandeis lectured in Olmstead v. United States (1928). Unchecked
government spying leads to abuses. Non-public information is gathered
and disclosed to embarrass or to destroy political opponents or
personal enemies. Just ask Ambassador Joseph Wilson and Valerie Plame.
And think of Dr. Martin Luther King. Further, the fear of ubiquitous
government spying encourages citizen docility and discourages dissent
or criticism to avoid the potential of government retaliation. An inert
people are the death knell of democracy.
V. WHAT CONGRESS SHOULD KNOW
Before Congress contemplates further amending FISA, it should
demand to know the following from the President in executive session or
otherwise:
1. A description of every foreign intelligence program operating
outside of FISA.
2. With regard to each program identified in response to paragraph
1, the number of Americans targeted, the selection criteria for the
targeting, whether criticism of President Bush is a factor in targeting
decisions, who makes the targeting decisions, the internal review
process of the targeting decisions, a description of the instances
where spying on a proposed target was denied, the performance standards
used to evaluate the officials who select the targets, the Fourth
Amendment training received by the officials who choose the targets,
the foreign intelligence gained that could not have been acquired
through FISA, minimization procedures for destroying non-foreign
intelligence information, the usefulness of the foreign intelligence
obtained compared with the usefulness of foreign intelligence assembled
under FISA, a listing of the terrorist plots that have been foiled
since 9/11 or terrorists captured in which foreign intelligence
gathered in violation of FISA played a material role and could not have
been gathered in compliance with FISA.
As President Woodrow Wilson remarked, the informing function of
Congress is its most important. But Congress has been grossly derelict
in informing itself and the public about President Bush's multiplicity
of foreign intelligence collection enterprises. The power of the purse
is readily available to cure the dereliction: no information, no money.
It has sat dormant for too long.
Mr. Lungren. Thank you very much, Mr. Fein. And we will
begin round of questioning 5 minutes apiece.
Mr. Fein, I always enjoy your testimony. You always make
references to historical facts. I happen to have been the Vice
Chairman of the Commission that looked at the treatment of
Japanese Americans and Japanese nationals back in the 1980's
and made the recommendation for an apology.
One of the historical facts we unearthed was that of all
the top people in Government, there was only one notable who
did not support the President's Executive order which resulted
in the rounding up of loyal Americans who happened to be of
Japanese descent, and that was J. Edgar Hoover. And J. Edgar
Hoover did it based on the fact that he believed he had
gathered sufficient intelligence to determine those for whom we
had probable cause, who might be disloyal to the United States,
and he felt that we didn't need to round up everybody, just
those for whom there was probable cause.
In that case, it was the intelligence that had been
gathered by the FBI that would have preserved the privacy
rights of most Japanese Americans, interestingly enough. Also
the only place where his suggestion was carried out happened to
be in Hawaii because they believed that if they rounded
everybody up of Japanese descent or nationality in Hawaii they
wouldn't have had a sufficient workforce.
And his approach actually worked; and there is an
interesting point that you had brought up where gathering of
sufficient intelligence actually preserved civil liberties in
this country as opposed to limiting them.
Mr. Eisenberg, you said in your statement that one of the
reasons the Administration is proposing this legislation, or
proposing a fix and at least looking positively upon major
elements of the Wilson bill, is that the executive branch is
overly burdened at the present time; and I think those were
your words, ``overly burdened'' in obtaining this information.
When you are dealing with a question of civil liberties,
when you are dealing with a question of the rights of American
citizens, that probably doesn't sound sufficient to support
legislation; and so I know you can elaborate on that, if called
upon. I wish you would.
Mr. Eisenberg. Yes, thank you for the opportunity.
Currently, FISA applications call for, in many cases, a lot
of information that has very little to do with anything that
could be protective of civil liberties. Burdens like that don't
have anything to do with protecting civil liberties. So to the
extent that we can streamline the application process, that
would remove a burden from the executive branch that would do
nothing at all to civil liberties; in fact, it would protect
civil liberties.
In addition, to the extent that we can refocus the
definition of electronic surveillance so that it depends
basically on targeting individuals inside the United States who
have fourth amendment rights, that allows the executive branch
and the FISA court to focus those resources on those with
fourth amendment interests; and then, as you just pointed out,
sometimes adequate intelligence protects civil liberties for
other reasons as well.
Mr. Lungren. I would like to ask, Ms. Martin and Mr. Fein.
And that is, would you object to a bill that would be
technology neutral with respect to the ability of the NSA to
operate in gathering information as it was done, let's say,
prior to the 1980's when we had this expansion or explosion of
technology advances?
In other words, one of the arguments made by the
Administration, specifically by NSA and the Justice Department,
is that a fix is necessary because the definitions it obtained
at that time did not anticipate the technology advances that we
had; and what we have now is have some hampering of the ability
of the executive branch to gather that information which was
intended to be available to them at the time that FISA was
passed, but because of new technology, actually either prevents
it or, in many ways, places what would be considered undue
burden on them without any requisite protection of civil
liberties.
Ms. Martin and then Mr. Fein.
Ms. Martin. Well, with all due respect, I am skeptical of
the framing of the argument by the Government. What I
understand is that while there are some exceptions to the
warrant requirement written into the FISA, that it was always
understood that the fourth amendment applied and protected
individuals inside the United States when the Government sought
to listen to their conversations, and that if a FISA warrant
wasn't required in certain circumstances, for example, what was
required at a minimum was a determination by the Attorney
General that the person who was going to be listened to was
suspected of being an agent of a foreign power, that there was
some probable cause as to that individual, and that that
probable cause determination was made by the Attorney General.
I think that the issue before the Committee is not
adequately analyzed in terms of technology neutrality and what
happened then and what is happening now. I think the issue that
you have to ask is, do the fourth amendment warrant requirement
and particularity requirement apply when the Government listens
to conversations of people in the United States, and if so--and
I submit that it does--are there some insurmountable barriers
to assist them where the FISA court issues a secret warrant
authorizing that kind of surveillance based on an
individualized determination of probable cause? And I don't
think they have made that case.
Mr. Lungren. Mr. Fein, my time is up, but if you could just
briefly.
Mr. Fein. I think the standard can be technology neutral by
referring to the fourth amendment standard of the Supreme Court
which is incorporated in two of the three definitions of
electronic surveillance and FISA, namely, a reasonable
expectation of privacy. That is what triggers the protection of
the fourth amendment and triggers worries when there is not a
warrant.
So if you want to amend FISA to say, through whatever
technology, when an American has a reasonable expectation of
privacy in his conversations, they need a warrant, but when
there is not a reasonable expectation of privacy, a warrant is
not required, I think that is fully satisfactory.
If I can amplify on the Pearl Harbor incident, what I think
your example shows is the worry that politics will enter into
the decision of how intelligence is used and result in abuse.
Because J. Edgar Hoover's view didn't result in the protection
of a civil liberty of any of those 120,000 Japanese Americans,
who stayed there well after 1944, again for political reasons,
so November elections wouldn't disturb the Democrats.
Mr. Lungren. A historical argument for J Edgar Hoover not
being political.
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Eisenberg, Mr. Potenza, Mr. Deitz would not tell us
what the NSA wiretap program was in any detail. Could you tell
us exactly what you are doing with that program? We have had
little bits and pieces come out through the New York Times.
We are changing the law to accommodate what you are doing.
We would like to know what we are accommodating.
Mr. Eisenberg. We actually cannot discuss the operational
details of the terrorist surveillance program, but I think that
there is enough on the public record. We have provided a 42-
page paper.
Mr. Scott. Wait a minute. You mean enough has leaked out?
Mr. Eisenberg. No. The Department of Justice has set forth
a 42-page legal defense of the terrorist surveillance program
on the assumption that FISA applies to it; and I think that the
Committee can use that to the extent it needs to worry about
the terrorist surveillance program.
Mr. Potenza. If I may, I would just add to that that the
other thing that is clear on the public record is that it is a
narrowly focused program. It is not a vacuum cleaner.
I think General Hayden testified on the public record that
it is not a drift net, that it is focused to accomplish a very
specific purpose, and that is to detect and prevent additional
terrorist activities in the homeland.
Mr. Scott. Well, you know, you just kind of draw those
conclusions: You are fighting terrorism; therefore, we ought to
accept everything we do. That is not consistent with our checks
and balances.
Let me ask you a couple of specific questions. If someone
in a foreign country is calling someone in another foreign
country, is that conversation subject to fourth amendment,
entitled to fourth amendment protections in terms of search and
seizure?
Mr. Potenza. A foreigner calling to a foreigner in a
foreign country does not have fourth amendment protection.
Mr. Scott. What about the foreign target generally? If you
have identified someone in a foreign country, do they enjoy
forth amendment protections?
Mr. Potenza. I would think not.
Mr. Scott. Now, Ms. Martin has indicated that there is
language that allows this vacuum cleaner.
Ms. Martin you want to point to the language in the bill
that allows that?
Ms. Martin. Yes, sir.
The revision of the definition of electronic surveillance,
which is contained on page 2 in the new (f)(1), makes the
intentional collection of information relating to a particular
person electronic surveillance, and therefore, subject to the
FISA warrant requirements.
But if you are simply acquiring contents of a communication
where one person is in the United States and one person is
overseas, now if you look at f)(2), that does not come within
the protection of the FISA warrant requirement.
Mr. Scott. If both are in the United States, you have to
get a warrant, but if one is not in the United States and one
is, then you are back into (f)(1) where nothing is covered.
Mr. Eisenberg, Mr. Potenza, do you want to comment on that?
Mr. Eisenberg. Could I actually respond to that?
Mr. Scott. Wait a minute. Have you said all that they need
to respond to?
Ms. Martin. I just want to be clear that when it is not
covered is if what they did was--instead of targeting an
individual talking overseas that they seized a whole set of
communications, say, between one locality and another, one
locality in the United States and a locality overseas. I don't
see that as covered by these definitions.
Mr. Scott. And then once you have that information you
certainly have it and can listen into it; is that not right,
Mr. Eisenberg?
Mr. Eisenberg. I take it with the premise I actually think
(f)(1) in the Wilson bill would be satisfied by such a
collection, because I think it would be very difficult for us
to say we are not intentionally targeting a specific person
when we are essentially targeting 270,000,000 people.
Mr. Scott. Can we make that clear? Would it offend your
sensibilities if we made it clear that any installation or use
of a device to intentionally collect information was reasonably
believed of anybody or any group of people reasonably believed
to be in the United States?
Mr. Eisenberg. I think it is clear in this definition and
by the definition of ``group'' in FISA, as well, as ``person.''
Mr. Scott. Okay.
Mr. Fein. I would like to add the reason why I think,
Congressman, that clarification is needed, because at least on
the Senate side in debating this issue, it is precisely this
authorization of a blanket warrant that is being considered to
be given to the President to obtain a warrant says, as long as
you have a program that collects conversations from everybody
in the United States and not picking any particular person out
for surveillance, then that satisfies the statute in the fourth
amendment.
That is why this isn't simply an academic point; it is very
much the provision in the Senate bill sponsored by Cheney and
Specter, and it ought to be clarified in the House. If it is
not endorsing, that concept repudiates it.
Mr. Lungren. Thank you.
Gentleman from Arizona, Mr. Flake, is recognized for 5
minutes.
Mr. Flake. Thank the Chairman and the witnesses.
I want to get to something I asked in the last hearing and
I don't think I ever got a firm answer for it. It touches on
something that Mr. Fein raised, that we are going through this
exercise with the markup of the Wilson bill, but it hasn't been
made clear to me what we will actually accomplish in the end.
In the end, by amending FISA, by streamlining it, by
expanding it, by giving the President authorization to do more
than he could otherwise, are we replacing the TSP? Or will the
TSP run parallel to the new authorized provisions of FISA?
Mr. Eisenberg, can you clarify?
Mr. Eisenberg. I think we should just view TSP as separate
from Wilson, but I will say that from the 42-page paper that I
described earlier, on the assumption that the TSP involves
electronic surveillance, that the one-end foreign
communications would not constitute electronic surveillance
where you are targeting the terrorist suspect overseas. So even
on the assumption that it is electronic surveillance, the need
for TSP would be reduced.
Mr. Flake. Reduced, but still there?
Mr. Eisenberg. That is not for me to say.
Mr. Flake. So what have we gained in terms of the Congress,
the first branch of Government, in terms of oversight? Have we
gained anything? And because if it becomes too difficult under
the streamlined provisions of FISA, does it just get kicked
over to the TSP?
Mr. Eisenberg. As Mr. Potenza made clear, the terrorist
surveillance program is an exceptionally narrowly focused
program that depends on the fact that we are in a state of
armed conflict with al-Qaeda and that the Congress authorized
the use of military force against al-Qaeda. So this bill would
seek to reframe FISA across the entirety of foreign
intelligence collection and not just with al-Qaeda.
Mr. Flake. With all due respect, that very narrow
application becomes as broad as you want to make it if there is
a declaration of armed attack. Or, really, we don't know
because we can't be briefed on it here; and so that is--I just
want to explain again the difficulty we are in in the Judiciary
Committee in trying to mark up corrections or streamlining of
FISA when there is always something else you can go to, and we
will not know whether that program is being used or not. It is
really difficult.
Mr. Fein.
Mr. Fein. Yes, I think that what needs to be done if you
want to force the Administration's hand is, put in explicitly
what was done in the 1978 Foreign Intelligence Surveillance
Act; if the Heather Wilson bill passes, that it shall be the
exclusive means, exclusive of any article 2 authority of the
President or otherwise, to conduct foreign intelligence
collection.
And I would wager, Mr. Congressman, if you put that in, the
Administration would oppose it and veto it or issue a signing
statement saying we don't have to comply.
Mr. Flake. You suggested language earlier, something to the
effect that Congress retains the authority to regulate the
President's authority to obtain intelligence.
Mr. Eisenberg, would the Administration oppose that
language?
Mr. Eisenberg. I think that in the context of an armed
conflict we're all better served where the branches work
together. I would note that the court of review, the very court
that Congress set up to oversee the FISA process, recently
explained that FISA, or any statute, could not encroach on the
President's constitutional authority.
Mr. Flake. Ms. Martin, do you have any comment?
Ms. Martin. Well, I agree that this is a very important
issue, and I think that the question is, what is the point of
Congress legislating here if, one, it has not been fully
briefed; and two, the President won't promise to follow the law
even when it has been amended?
And on the question of being fully briefed, I'd just like
to say that, you know, we supported the creation of the
Intelligence Committees to act as a proxy for the American
people to conduct oversight of activities that have to be
secret. But when you are talking about amending the fundamental
law that protects the fundamental fourth amendment rights of
American people, I think that the Congress has the
responsibility to make a public record about what the changes
mean and why the changes are necessary.
And I think that if you go back and look both at the Church
committee report, but more importantly, at the hearings and the
record that was made about FISA, that we can have many more
facts on the public record without interfering with any
national security issues.
We are not asking to know who was the target of the
terrorist surveillance program. But I have yet to hear any
justification for the Administration refusing to tell the
American people, for example, are you going outside the pen
register and trap and trace provisions of the FISA, and getting
addressing information on hundreds of thousands of phone calls
in order, you know, to draw a map or to do traffic survey?
What is the justification for not telling the American
people that and simply asking the Congress to authorize them to
do that without any court order?
Mr. Flake. I thank the Chair.
Mr. Lungren. Time of the gentleman has expired.
Gentleman from Michigan and the Ranking Member of the full
Committee is recognized for 5 minutes.
Mr. Conyers. Thank you, Chairman Lungren. I appreciate this
hearing. The only thing I can conclude is that we need more of
them to get to where we are going.
Mr. Potenza, do you concede that we are basically altering
the framework of FISA under the proposals in the Wilson bill?
Mr. Potenza. I don't think we are. Our view is that the
proposals on the table focus FISA on its original intent, that
is, to protect persons in the United States and to protect
communications both ends of which are in the United States. And
that is what the redefinition of electronic surveillance in our
view intends to achieve.
Mr. Conyers. Do you think that there is at least a question
of fourth amendment violations inside the Wilson bill?
Mr. Potenza. No, sir.
Mr. Conyers. Well, we have never had quite as diametrically
opposed views by excellent lawyers in this panel in the history
of the Judiciary Committee.
Let me ask the same question, first of Mr. Fein and then of
Ms. Martin.
Mr. Fein. Well, I certainly think there are egregious
fourth amendment violations in the bill because it empowers the
President to discard every kind of protection against abuse of
investigative authority every time he announces, on his say-so
alone, that there has been a terrorist attack against the
United States, which is going to occur. In Iraq or Afghanistan,
in our lifetimes or thereafter, there is always going to be
there the enemy, some remnant of al-Qaeda wanting to attack us.
And that, under the statute, suspends the fourth amendment and
any limitations.
I know of nothing in any Supreme Court decision, including
the Keith case, concerning domestic surveillance that suggests
that the fourth amendment vanishes every time the President
says a terrorist attacked one of our troops in Baghdad, which
is what this does.
Mr. Conyers. Let me get her first.
Did you want to come in, Mr. Eisenberg?
Mr. Eisenberg. I want to say that removing something from
the coverage of FISA removes the requirement that you get a
court order, and the Supreme Court has long made clear that a
court order is not always necessary.
There are special needs beyond the ordinary law enforcement
where the test of fourth amendment is merely reasonableness;
and we think that foreign intelligence surveillance, especially
in the midst of an ongoing armed conflict, is certainly a
special need.
Ms. Martin. That actually leads to my point, which is that
I think we are hearing--for the first time, perhaps--a very
radical view from the Justice Department, which is that
Americans' communications aren't entitled to any protection
under the warrant clause unless you are calling somebody else
inside the United States.
As I understand, what they are saying is that every time
they call overseas you don't need a warrant because that wasn't
the original intent of FISA.
I disagree with that reading of either the legislative
history or the legislative text, but most of all, I know of no
fourth amendment authority that says you can listen to an
American's telephone calls when they call England, without a
warrant. And that is what I hear the Justice Department
arguing.
Mr. Fein. And if I could add, Mr. Congressman, the reason
why the statute here is so pernicious is because it lends
congressional authority to whatever inherent Presidential power
there is to gather foreign intelligence after a clash with
international terrorism. And as you all know--and I know the
chairman of Youngstown Sheet & Tube says that the President's
authority is at its zenith when Congress has specifically
endorsed what he is doing without a warrant; and that is why
this legislation, if it was enacted, would mean that the
Presidential authority to gather foreign intelligence without a
warrant is much lower, a low watermark, which would make it
highly dubious.
Mr. Conyers. I think what we may be doing is a couple of
things.
First of all, we are rationalizing the President's and the
NSA's activities and conduct, and we are simply making it okay,
at least until it gets into the court to be tested. And so that
leaves me quite disturbed. This is a sort of a fix-it approach.
The second thing in the time remaining, I would like Martin
and Fein to talk about the fact that this bill doesn't--the
Wilson bill doesn't speak to the alleged problems that are
being complained of. I mean, it is like we are going to get a
secret operation from--can I get one-half minute more, Mr.
Chairman?
Mr. Lungren. Certainly.
Mr. Conyers. Just so that you don't pick up that gavel as I
thought I saw you reaching for.
It looks like we are fixing--we are making it clear that
the President can do this, and it doesn't meet the problems. We
may be besieged in the Rules Committee with a new bill that
comes in with all kinds of new things, and that was my big
disappointment in the PATRIOT bill.
Could you comment on that very briefly?
Mr. Fein. I think, Mr. Conyers, what you pointed out is,
there are some small problems that exist with regard to FISA.
For example, the accident that a transit of a communication
between two foreigners in the United States is covered, that
could be fixed with minor changes; and they have used that as
an excuse to basically repeal the whole statute by giving the
President unfettered authority as long as there is a conflict
with international terrorism to ignore FISA.
If you want to have these small fixes--and maybe 5 days is
better than 3 days for an emergency warrant--you can have that
in stand-alone bills. But this particular Wilson bill as the
exception gobbles up the entire statute and really makes the
technical fixes irrelevant in anything.
Mr. Lungren. The gentleman's extra half-minute has long
expired.
Mr. Conyers. I thank the Chairman and the witnesses.
Mr. Lungren. Gentlelady from Texas is recognized for 5
minutes.
Ms. Jackson Lee. I thank the distinguished Chairman and I
thank the witnesses.
We are in a dilemma, caught between the seriousness that I
believe each of you is concerned with, which is the securing of
America. And my line of questioning will pointedly try to break
the schism that seems to taint those of us who are concerned
about civil liberties in the Constitution as well.
The take on this hearing will be that a particular view, of
course, will undermine the securing of America, and I think
that is the misrepresentation that blankets a reasonable
discussion on this issue. And I think my distinguished Ranking
Member has made a very valid point, along with the Ranking
Member of the full Committee, Ranking Member of the
Subcommittee. We need more time because the headlines or the
political headlines that will carry the day, the election day,
will be this schism or this divide between those of us who
raise this point.
So I am going to try to pull you out of the ashes and, of
course, you say you're not there. But it is how it is
interpreted.
The other point that I want to make very clear is that we
wrote right after 9/11 a bipartisan PATRIOT Act. I think many
of you might have been engaged in that review from both sides
of the aisle, and, of course, prospectives, political
conservatives and liberals. Unfortunately it was derailed. And
I think it's important for the American people to know that we
can secure the homeland as Americans. And frankly, I think it's
unfortunate that we have a bill that is a political bill. It is
a bill of someone who is in a contested election. I don't know
where it's coming from. The Administration hasn't suggested
they're supporting it, and frankly, this is not the way to
write legislation that really is going to be the cornerstone of
America's security and survival over the decades.21So I do want
to raise to both Mr. Eisenberg and Mr. Potenza and Ms. Martin
and Mr. Fein the question again about how the Wilson Bill
protects U.S. citizens from unreasonable search or seizure, for
Mr. Eisenberg and Mr. Potenza. And how, for Ms. Martin and Mr.
Fein, again, though it may have been crafted another way, how
it interferes.
And for Ms. Martin and Mr. Fein, and I'm going to ask, if
you would, engage in the rebuttal that questioning this
approach is unpatriotic or undermines the Nation's ability to
secure itself, because I think any one of us that are sitting
across this table would be the first in front, along with our
fellow Americans, to defend this Nation. But that is not the
interpretation that is given.
And the last point of my questions is that, Mr. Fein, you
have made a very good metaphor, analogy about the fact that an
attack in Iraq could be interpreted as such. And I was
listening, and so I went to section 112, and I think this is
the language, and you're right. It's not now. It does not make
a specific definition to suggest that the President would be
talking about on our soil. Maybe that's what we need to talk
about. Because in actuality, I wonder whether the British find
with the individuals with the liquids could be considered a
potential attack because they were entering the United States.
So people are going to be concerned. Listen to these folks
who are sitting here. They are not concerned about securing
America. You know, we give away our rights. We only worry about
that when we are indicted, but I ask quickly for Eisenberg and
Mr. Potenza to answer me how the Wilson Bill protects. And
quickly, I would like to ask the Chairman's indulgence so that
Ms. Martin and Mr. Fein can answer the last two questions. Mr.
Eisenberg, Mr. Potenza, how did it protect?
Mr. Eisenberg. I would like to distinguish between the
first two aspects of the Bill. The first is the sort of FISA
modernization and the second is the programmatic issue. I'm
going to focus my remarks----
Ms. Jackson Lee. Just because I am under the gun
specifically, I need you to just answer that question, how does
it protect citizens from unreasonable search and seizure? And
if I had more time----
Mr. Eisenberg. Electronic surveillance would focus on U.S.
persons, on people in the United States who have constitutional
rights. That's how it would protect U.S. person rights. That
would be the entire focus of the bill. We would take resources
away from focusing on situations in which U.S. person rights,
some people in the United States are not at stake and devote
those resources and the attention of the FISA court to those
situations that most directly implicate the rights of U.S.
persons.
Ms. Jackson Lee. Mr. Potenza?
Mr. Potenza. Yes, ma'am. By focusing on the target, by
causing the focus on the target of the collection, it puts us
in a posture where we are today and many of our other
collection sources where we protect U.S. citizens' rights,
because we apply reasonableness standards, which is regulated
by the executive branch minimization procedures that have been
filed with and reviewed by the intelligence committees and
subject to Intelligence Committee oversight. So focusing on the
target protects U.S. persons' rights.
Ms. Jackson Lee. Ms. Martin and Mr. Fein.
Ms. Martin. Well, I want to say that I think that the
framework of FISA has served our national security interests
superbly. And it does it by focussing the limited
counterterrorism resources that are available and forcing the
intelligence community to make a determination before it
surveils somebody that there is some good reason to surveil
that person. Because every time they do a surveillance, it
means they are not doing something else, and that the whole
purpose of FISA is to say, look at the people who you have some
basis to suspect are being terrorists, and that's what's being
deleted from here. It has also served national security
interests very well because the people charged with carrying
out FISA have been secure, that they do not face any personal
liability for eavesdropping. And if I could just add one final
sentence.
Ms. Jackson Lee. Well, I want to get to Mr. Fein.
Mr. Lungren. Well, the gentlelady's time was expired almost
2 minutes ago, and I have other Members who want to talk. So if
Mr. Fein could just shortly respond.
Ms. Jackson Lee. Thank you, Ms. Martin.
Mr. Fein. Civil liberties aren't protected at all, because
you will notice the Administration still has not repudiated to
you, indicated, nor everything in the bill anyway because
there's inherent article 2 power to surveil without any
warrants because we're in a class with international terrorism.
Whether they call it narrow exception or broad exception, it's
as wide as the President makes it.
Now, with regard to how we characterize our defense of
FISA, as protecting national security, I recall a statement by
Justice Robert Jackson saying, checks and balances don't make
for weak Government. They increase Government strength because
it makes citizens confident that the Government is performing
according to the rules and makes them more willing to yield
liberties because they know their checks and balances. And that
shows, in my judgment, that following FISA will strengthen
rather than weaken the Government's internal ability to marshal
that support to defeat terrorism.
Mr. Lungren. Time of the gentlelady has expired. Now the
gentlelady from California is recognized for 5 minutes.
Ms. Waters. Thank you very much. Mr. Chairman and Members.
I think it's been stated more than once that it's unreasonable
to expect us to be able to mark up this legislation any time
soon, given the fact that not only have we just recently
received information from the Administration, but some of it is
conflicting, I think. But let me just ask a few questions, some
of which may have been raised already. I would like a clear
definition of our--and distinctions that are being made between
an agent of a foreign government and a suspected agent with
information, relevant information who may not be an agent of
the government. Would you please, Mr. Eisenberg, tell me what
distinction--distinctions are being made between----
Mr. Eisenberg. Well, I think the reason to add the agent of
a foreign--as an agent of a foreign power, some non-U.S. person
with significant foreign intelligence, which is a provision we
would actually narrow is because it's not always clear there is
an agency relationship.
Ms. Waters. Would you speak a little slower and a little
clearer.
Mr. Eisenberg. Sure. I think the point in Senator--in
Representative Wilson's bill of adding that as an agent of a
foreign power is that there are circumstances where non-U.S.
persons possess significant foreign intelligence, and it's not
clear whether they are or are not agents of foreign powers. We
would actually narrow that a little bit.
Ms. Waters. A little bit?
Mr. Eisenberg. Well, we would----
Ms. Waters. Somebody would decide that there's somebody who
is not an agent of a foreign government. You have not been able
to tie them to that government. You're not able to connect them
to the government, but you think they may have information
that's relevant or pertinent that you could then place them
under surveillance, is that correct?
Mr. Eisenberg. Essentially.
Ms. Waters. So that could be anybody.
Mr. Eisenberg. No. It would have to be a non-U.S. person
who has, in our view, some significant foreign intelligence
information.
Ms. Waters. Such as someone who works for a corporation
maybe.
Mr. Eisenberg. I would comment on----
Ms. Waters. I beg your pardon?
Mr. Eisenberg. I would not want to comment here on what an
example would be.
Ms. Waters. Well, let me ask you, since you are explaining
to us what it is, could this person be a person who works for a
United States corporation in a legitimate job, performing a job
for a U.S. corporation?
Mr. Eisenberg. Under the proposal, as I understand it, if
it's a non-U.S. person----
Ms. Waters. Yeah. Non-U.S. persons do work for
corporations. They are here on visas, they could be here, they
could be in anyplace in the country--in the world, working for
a U.S. corporation. These persons could be targeted because
they have some trade secrets?
Mr. Eisenberg. I think that we would not be using it for
trade secrets. I think that we would be using it when that's
the only way we could gather foreign intelligence that's
valuable to the United States.
Mr. Scott [continuing]. Foreign intelligence.
Ms. Waters. Of course it could be. Absolutely. Do you
recognize that we have cooperation with other countries where
we trade information, usually it goes through some kind of
process where it is the development of weapons or the kinds of
things that we have decided to share information about that's
legitimate, what if those persons or persons in these
corporations could be considered a target because they have
this information? Is that what you're telling me?
Mr. Eisenberg. Conceivably. I mean, in addition----
Ms. Waters. I didn't hear. Conceivably? Is that what you
said?
Mr. Eisenberg. That's what I said.
Ms. Waters. Okay. Go ahead. Continue to explain.
Mr. Eisenberg. In addition, we would add another category
which would be proliferators of weapons of mass destruction.
Non-U.S. persons who are believed to be proliferators of
weapons of mass destruction.
Ms. Waters. Well, excuse me. Let me go to the gentleman.
Mr. Fein. Number one, I think, Ms. Congresswoman, your
question is pointed out the theory of the Bush administration,
which is just, trust me, we only go after the bad guys with
serious information. The answer here is suggested there is a
word in the statute that isn't there, significant foreign
intelligence information, and only if it's necessary to thwart
some dangerous plot. That certainly isn't the language here. It
says any foreign intelligence information they are targeting
and foreign intelligence information is defined to include
anything relating to national security or foreign policy, like
whether they know the internal politics of the government in
Iran or in Pakistan or something of that sort. This is an
invitation to surveil anybody under this, this open-ended
definition.
Ms. Waters. Yes. Did you have something else you wanted to
say? I think that's what I've concluded. Thank you.
Mr. Eisenberg. Two additional points. Thank you.
Ms. Waters. Yes, please.
Mr. Eisenberg. First, I don't think significant is in the
bill. We would recommend that it be put in the bill and second,
this would be pursuant to a court order.
Ms. Waters. All right. So--did you have something you
wanted to say about that, sir?
Mr. Potenza. No ma'am. I just wanted to emphasize that what
we're talking about here is changing the definition to allow us
to get a court order.
Ms. Waters. All right. But you don't define words like
significant. That's left to one's imagination, I suppose.
Mr. Eisenberg. And the judge's.
Ms. Waters. And the judge's imagination rather than the
Constitution of the United States.
Mr. Eisenberg. Well, no, no, no. Any surveillance would
have to satisfy the fourth amendment, and here a judge would be
deciding if it does.
Ms. Waters. You don't set forth for us in this bill what
the judge should consider in determining what is significant.
Mr. Eisenberg. Well, FISA currently uses ``significant.''
we have to certify that a significant purpose of the
surveillance is to gather foreign intelligence information
already. So it's a term that is already well within FISA.
Mr. Lungren. Okay. The gentlelady's time has expired.
Ms. Waters. Thank you. Thank you very much.
Mr. Lungren. The gentleman from Massachusetts I think is
pensive and ready to take his 5 minutes.
Mr. Delahunt. Thank you, Mr. Chairman. I'd like to just
pose a question first to Mr. Fein and then to Mr. Eisenberg. I
think it's important that the American people understand
certain basics about the current state of the law. If al-
Qaeda--if an al-Qaeda operative is calling from overseas and an
American picks up the phone here in this country, does the
current statute require the NSA to stop listening?
Mr. Fein. No. That's the hypothetical, that's spherous and
is repeatedly used.
Mr. Delahunt. Mr. Eisenberg, could you respond to that
question?
Mr. Eisenberg. I would defer to Mr. Potenza, but I think it
might depend on a whole lot of circumstances.
Mr. Delahunt. Okay. Mr. Potenza.
Mr. Potenza. If we were collecting it in the United States,
we wouldn't be doing it without a court order.
Mr. Delahunt. Mr. Fein.
Mr. Fein. When the target is the foreign intelligence
agency abroad, there's no reasonable expectation of privacy in
the fourth amendment, as the Supreme Court has held, doesn't
apply outside the continental United States. Now, there has
been an advertence to a situation where if in an unusual way
that there is a transit of a call into the United States so
it's intercepted here, there could be a problem, but everyone
agrees that's a fixed, that is acceptable. The basic fourth
amendment doesn't apply----
Mr. Delahunt. Right. The President keeps saying that
repeatedly, repeatedly, and let me suggest that that is
misleading to the American people. Mr. Eisenberg.
Mr. Eisenberg. I'm not sure, but I think there may be a
misunderstanding. Under current FISA, definition two, there
doesn't have to be a reasonable expectation of privacy. All
that matters is that there's a wire interception in the United
States, and one of the communicants is in the United States.
Mr. Delahunt. And the NSA would not have to stop listening.
Mr. Eisenberg. Well, it would need a court order.
Mr. Delahunt. It would need a court order or what would
implicated would be the emergency exception, the 72 hours to go
and get the court order?
Mr. Eisenberg. Well that's actually not the way the
emergency authorization provision works.
Mr. Delahunt. Okay. Explain.
Mr. Eisenberg. In order to go up in the emergency
situation, we first have to assemble enough information so that
the Attorney General can determine that the requirements of
FISA are met, and only after the Attorney General makes that
determination can the surveillance begin. And that's a process
that could take as long as a normal application process to
begin with.
Mr. Delahunt. Okay. Mr. Fein, would you care to respond, or
Kate Martin?
Mr. Fein. Did you want to----
Ms. Martin. Well, I just want to make an additional point.
If the Government reads the FISA as requiring a court order to
continue to listen to that conversation, they can go get a
court order because, according to their description, there's no
doubt but that there's probable cause that the person they're
targeting is an agent of a foreign power.
Mr. Delahunt. Because they're aware of the fact that it's
an al-Qaeda operative that is making the call.
Ms. Martin. That's right. And they can----
Mr. Delahunt. Because that is the target.
Ms. Martin. They go get a court order.
Mr. Delahunt. Would that be sufficient to secure a court
order, Mr. Eisenberg?
Mr. Eisenberg. You would have to show to a court that there
is probable cause to believe that the person is an agent.
Mr. Delahunt. In your opinion, a call from an al-Qaeda
operative, would that be----
Mr. Eisenberg. Sure.
Mr. Delahunt. Would that be sufficient PC?
Mr. Eisenberg. Sure.
Ms. Martin. If I might add, and as I understand on the
public record, this--they must determine before the
conversation is received who they consider to be the al-Qaeda
agent of a foreign power overseas. There's nothing blocking
them from going and getting a court order saying, every time
Mr. Al Qaeda calls into the United States, we want an order to
listen to any phone call he makes into the United States or any
phone call he receives from the United States.
Mr. Delahunt. Would you concur with the statement by Ms.
Martin, Mr. Eisenberg?
Mr. Eisenberg. Can you repeat that?
Mr. Delahunt. No. We don't have time to repeat it. Let me
just make an observation. It's been 5 years since 9/11. It's, I
think, last December The New York Times reported the GSP, and
it's 7 weeks to an election. And we're told that tomorrow we're
having a mark-up of this bill. And to date, the Administration
has not come forward with a draft proposal.
People can draw their own inferences. I happen to concur
with the observations by Mr.--by Mr. Fein. I believe that there
are some issues that are worthy of significant discussion, but
to ask this Committee and this Congress to operate after two
hearings in the past week and one briefing I think is not good
policy making, to begin with, and not genuine consultation.
You've had years now to bring forward these problems as they've
emerged and to consult with Members of the Judiciary Committee
who are here, sworn to uphold the Constitution. I just find it
stupefying why, you know, there appears to be a sense of
urgency, particularly, as you refer, Mr. Eisenberg, to that 42-
page paper, where if you examine the rationale under article 2
and the Iraq War Resolution, you really don't need this anyhow.
You don't need the PATRIOT Act and you don't need FISA. You
can do exactly what you want. I would request that you go back
to your superiors and suggest that we enter a genuine
consultative process that really works for the best interest of
the United States and defends the Constitution. With that, I
yield back.
Mr. Lungren. I thank the gentleman for yielding. And
because of the good faith and treatise of your Ranking Member,
Mr. Scott, we'll go to a second round here, as long as we all
stay within our 5 minutes, except for the Chairman.
Let me give myself 5 minutes to start the second round.
Both Eisenberg and Mr. Potenza, there's been the expression,
vacuuming up of calls of U.S. persons, and that has sort of
been just sitting out there. Can you tell us whether there are
any protections outside of FISA that prevents the NSA from
vacuuming up all calls of U.S. persons?
Mr. Eisenberg. Yeah. I'll start, and then I'll----
Everything that the United States has--all the activities
of the intelligence community are under Executive Order 12333,
or other like authorities, and they're all governed by
procedures that are designed to protect the fourth amendment
rights of U.S. persons. Information is minimized, that means
whenever we acquire information, we always look to see what we
can get rid of, what we don't need and we only retain what we
actually need for the foreign intelligence mission. Congress
serves an oversight function. There are plenty of oversights
outside of FISA.
Mr. Potenza. I would--I would just add that from the NSA
perspective, the collection we do outside of FISA is--all of
our--all of our collection, but particularly that outside of
FISA is driven by specific intelligence requirements that are
vetted and verified by the Director of National Intelligence.
Our collection's then focused to try to identify the
communications that will yield that information, information
pertinent to that request. And we do that because in order for
our activities to be constitutional, our searches must be
reasonable, and they're reasonable because of the effort we
make to select and filter communications.
Mr. Lungren. Let me ask you, for how long has the
minimization program, minimization policy been in effect? Did
it start with this Administration, did it start with FISA, did
it start prior to that?
Mr. Potenza. I can speak only with certainty from the late
1970's, and that's when they started. I got to NSA in 1980 and
in the aftermath of the Church and Pike Committee
investigations, the passage of FISA, and there were both
statutory that the FISA minimization procedures, and then there
were the minimization procedures required by each of the
Executive orders that have been signed by the President,
starting with the Ford Executive order.
Mr. Lungren. Ms. Martin, just a yes or no answer. Do you
think there's any reason to streamline the FISA process?
Ms. Martin. I accept the Government's representation that
the 45-pages are a problem for them. And that OIPR is a
bottleneck and that OIPR perhaps needs streamlining.
Mr. Lungren. So here's the conundrum that I find ourselves
in, that I find us in, and that is, FISA is based on a
proposition that we must go before a court to show probable
cause in those various categories to grant the authority to the
NSA to do their work. The details that we have established
requiring the Attorney General to make that finding have at
least, it seems to me, proven to be difficult in that the
Attorney General really wants to make sure that he's got
probable cause under those circumstances, and it takes a great
deal of operation, great deal of time not only by lawyers, but
by analysts to do this in order to be able to achieve that.
If you would accept that, just--I know this might be a
tough hypothetical for you, Mr. Fein, to accept, or Ms. Martin,
if that be true, how would you suggest that we resolve that
problem? If on the one hand we say, we want the attention of
the Attorney General, not to delegate it to anybody else, we
want this standard of proof, and that means we really have to--
to provide it, and that all takes time, energy, effort, etc.,
how do we work ourselves through that problem? If you accept
that that is a problem.
Mr. Fein. Well, it seems to me, you could expand the 72
hours so that the Attorney General would not have to compile
all of that information before beginning the surveillance, he
would have then a time lay where then he would have an outside
check by a judge. But I think you would need to remember, Mr.
Chairman, that the purpose of FISA, the reason why we had it
was because we had experience of 50 years of unchecked
executive power to gather domestic and foreign intelligence,
and that was 50 years of substantial abuses.
As Brandeis said, sunshine is the best disinfectant, and
that is part of the reason why you have at least the sunshine
of a FISA court to look at these things. Everyone would agree
if there's no possibility of abuse then surely it's silly to
just impose administrative burdens and these standards that
have to be shown to a court.
But history is the opposite. There are abuses when you
don't know what is going on, and you would just have one branch
looking at itself. You may recall recently the fiasco of the
NSA telling the Department of Justice, hey, you can't have
security clearances to come and examine the authorization we
had to begin this domestic surveillance problem. It wouldn't
even trust its own Department of Justice.
Mr. Lungren. Maybe I could ask Mr. Eisenberg and Mr.
Potenza, as my time is about ready to run out.
Mr. Delahunt. Mr. Chairman, I ask unanimous consent that
the Chair grant itself as much time as it needs or wants.
Mr. Lungren. I appreciate that. Well, now it's only two to
one. It was four or five to one there for a while before. Mr.
Eisenberg and Mr. Potenza, what is wrong with the 72-hour
exception or expanding the 72-hour exception to 2 weeks, or
whatever it is?
Mr. Eisenberg. Ultimately, I don't think that that is the
answer, although expanding the time could help in many ways,
but as I explained earlier, before we can start surveillance,
whether it's a 72-hour period, a 2-week period, whatever, the
Attorney General has to, before that point, determine that the
facts exist to satisfy the requirements of an application. We
can't just flip a switch, go up for some amount of time and
then make it okay later. We've got to go----
Mr. Lungren. He has to make that determination before you
actually begin the----
Mr. Eisenberg. That's correct. And if, in the event we
don't end up filing an application, or if the court were to
deny it, there's a presumption in the statute that it's
disclosed to a U.S. person. So there are tremendous incentives
against doing this.
Mr. Lungren. Mr. Potenza.
Mr. Potenza. I would just like to add that--that in our--
the focus, as at least we understand it, is to not--is to focus
on what we intend to protect, the rights of those persons
entitled to privacy protection under the Constitution, and to
refine the system, given modern telecommunication--the modern
telecommunication world so that we're not affording those
protections inadvertently to persons overseas who may pose a
threat to the United States.
Mr. Lungren. All right. I'll yield. I've gone over my time.
Mr. Scott, you have 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. On page 2, line 5, it
says ``D, possesses or reasonably expected to transmit or
receive foreign intelligence information while in the United
States.'' now who does that apply to? The way the bill is
written, it's a little unclear.
Mr. Eisenberg. I believe it would apply to a non-U.S.
person who possesses intelligence.
Mr. Scott. And so what happens--what is that amending?
Mr. Eisenberg. The definition of an agent of a foreign
power in FISA.
Mr. Scott. Okay. So now anyone who possesses, or is
reasonably expected to transmit or receive foreign intelligence
information, we've already ascertained that foreign
intelligence is not national security terrorism. It could mean
anything that helps foreign policy along like a trade deal,
digging up dirt on foreign--on public officials that might help
us negotiate with them, anything on foreign intelligence, is
that right?
Mr. Eisenberg. Well, foreign intelligence is actually
defined specifically in FISA.
Mr. Scott. That's right. Anything that helps along the
foreign policy, helps us negotiate a trade deal or anything
else. Also terrorism.
Mr. Eisenberg. No, no. It's actually far more narrow than
that.
Mr. Scott. What does foreign intelligence mean?
Mr. Eisenberg. It means----
Mr. Scott. Go down to that catchall phrase down at the end,
the last one.
Mr. Eisenberg. Well, it's section 101(e) of FISA. And I
would just recommend you to read it.
Mr. Scott. Anything helping along the foreign policy.
Mr. Eisenberg. No. 101(e) 1-A, for example, talks about
actual or potential attack or other grave or harmful acts----
Mr. Scott. Keep going.
Mr. Eisenberg [continuing]. Of a foreign power.
Mr. Scott. So you are scaring people to death with the
terrorism, but keep going.
Mr. Eisenberg. Next one. Sabotage or international
terrorism.
Mr. Scott. Keep going.
Mr. Eisenberg. Clandestine or----
Mr. Scott. Keep going.
Mr. Eisenberg. That's it. Except for intelligence with
respect to a foreign power or concerning a U.S. Person that is
necessary to the security of the United States or the conduct
of the foreign affairs.
Mr. Scott. Ah! What's that last one? Say that last one
again. You have been scaring people to death on the terrorism
and now you finally get to the end that I've been trying to get
you to. Foreign policy.
Mr. Eisenberg. Necessary to the conduct of the foreign
affairs. I mean, necessary.
Mr. Scott. Necessary to the foreign--yeah, like negotiating
a trade deal.
Mr. Eisenberg. That's one heck of a trade deal.
Mr. Potenza. It could be, but if the judge were persuaded
that that was foreign intelligence information, the judge would
approve the surveillance.
Ms. Martin. Could I just----
Mr. Scott. Ms. Martin.
Ms. Martin. You know, it seems to me this is an example of
how this complex bill could not be understood between now and
tomorrow because I heard my colleague say that the amended
definition of an agent of a foreign power applied to the
situations where they get a court order but that's not how I
read the bill. The bill in section 3 expands the situation when
they can do warrantless surveillance on the certification of
the Attorney General. And it refers to an agent of a foreign
power as defined in section 101(b)(1). That's the section that
Chairman--Mr. Scott, that you were just referring to, is
amended by the statute to make it much more than a suspected
terrorist. And it's this kind of confusion about what the bill
actually accomplishes.
Mr. Scott. Mr. Fein, what is foreign intelligence?
Mr. Fein. It includes, as you pointed out, anything
relating to our ability to conduct foreign relation.
Mr. Scott. So when they scare you with the terrorism, it
also includes----
Mr. Fein. Well, things like what is the--what are the
reserves that are being held in the Central Bank of Iran, what
are the trade deficits in China? What would help us negotiate a
free trade deal with Bahrain. All of those things are foreign
intelligence within the meaning of the statute, all of them are
open-ended and really place no serious limits on surveiling
anyone.
Mr. Scott. Now Mr. Fein, Administration officials have gone
to great lengths to show that their checks and balances and
they have Executive orders and Attorney General and everybody
within the executive branch checking and balancing on itself.
What's wrong with that?
Mr. Fein. Well, that's certainly not the envision of the
Founding Fathers who didn't think checks and balances was
checking yourself. Checks and balances is what they called
making ambition to counteract ambition, having a different
branch of Government with a different agenda, making that
examination and survey. That's precisely why this branch in
FISA required that a court examine the validity of the facts
asserted to establish probable cause. And you can imagine that
within the executive branch, in NSA, the professionals who
single out people for surveillance aren't going to get punished
for spying too little. They get promoted the more intelligence
they gather.
That's what their mission is. Their mission isn't to cease
spying because they think the fourth amendment is a problem.
That's precisely why you need a real check outside the
executive branch if this is going to function. And I want to
return to history. There were 50 years of unchecked electronic
and other surveillance for foreign and domestic purposes where
the Administration did just what they're saying. We all checked
ourselves, the Attorney General checked what the CIA and FBI
was doing, you can open mail without any violations of the law.
That's why we had FISA. It didn't just fall from the sky by
Congress wanting to be pestiferous and hamper the executive
branch. We shouldn't forget that. Human nature doesn't change
with regard to power.
Mr. Lungren. Mr. Scott.
Mr. Potenza. Mr. Chairman, may I just have a second? I must
respond to that. I can't sit here and let someone suggest that
the men and women at the National Security Agency are running
amuck. That is simply false. We do, outside of FISA, the
collection against foreign targets where we, incidentally,
acquire information to, from or about U.S. persons every day.
That process has been overseen for 25, 26 years by the
Intelligence Committees, and it's been validated as lawful by
the Department of Justice and compliant with the fourth
amendment.
So it's simply false to suggest that the men and women of
the Agency don't know what the rules are, don't follow the
rules, and that we don't have mechanisms to comply with those
rules and to check that compliance and that there are not
external bodies to come in to check that.
Ms. Martin. Mr. Chairman, if I might, we don't mean to
suggest that the men and women of the NSA do anything other
than operate within the rules and the orders that they are
given by the political people in charge of the agencies and in
charge of the White House. It has nothing to do--I am sure that
Mr. Potenza and the rest of the career people follow the laws
and follow the President's orders. We are talking about the
President's orders here.
Mr. Lungren. I thank the gentleman for his question. I
would just say, I think Mr. Potenza also said there was
oversight done by the intelligence Committees, of which I used
to be a Member. And unless they're doing absolutely nothing,
there is at least that check.
Mr. Scott. I think there's a difference between telling the
Intelligence Committee what you're doing under threat of
imprisonment if they tell anybody, and a check and balance that
can actually stop the proceedings from going forward.
Mr. Lungren. I appreciate the gentleman's comments. If
that's a problem, then maybe we in Congress ought to look at
the laws that we set up with respect to how the intelligence
Committees operate.
Mr. Delahunt. Would the gentleman yield?
Mr. Lungren. Like I pointed out before, the ultimate power
we have under the Constitution is the power of the purse. Power
of the purse I assume presumes that we are informed. The
intelligence Committees have the responsibility to keep us
informed. If they are not doing that, then we ought to be the
ones----
Mr. Delahunt. Would the Chair yield?
Mr. Lungren. Well, it's on Mr. Scott's time, even though
it's over time.
Mr. Delahunt. I hear what you are saying, but the reality
is, a short time ago my memory is that the Chairman of the
Intel Committee, the Republican Chairman, Mr. Hoekstra, sent a
letter or expressed publicly his concern about the lack of
cooperation coming from the Administration. If we want to talk
about oversight and congressional oversight, I think we've got
to be honest with the American people. It is not happening.
You and I both--well, the Department of Justice, for
example, can you remember the last time that the director of
the FBI appeared before either this Committee or the full
Committee? How many appearances has Mr. Mueller made in front
of this Committee?
Mr. Lungren. Well, all I know, since I've been here, once.
Mr. Delahunt. Once? I can't remember a single time since
he's been appointed. My point is----
Mr. Lungren. Well, I was here. And I appreciate the
gentleman's comments. But we are----
Mr. Delahunt. But we're talking about oversight as somehow
that's going to be the remedy, and again,----
Mr. Lungren. Maybe under the Constitution it is. The
gentlelady from Texas is granted 5 minutes.
Ms. Jackson Lee. Thank you, Mr. Chairman. And I want to
echo I think the remarks even more strongly than Ms. Martin
made to Mr. Potenza and to Mr. Eisenberg. It is not a question
of the individual patriots that work for this Government. We
recognize and respect your love and affection for this Nation,
and your desire to secure her. But I think as I am reminded of
the fledgling 13 Colonies, the basic anchor and message of
those constitutional writers was the preservation of liberty,
certainly the checks and balances that would be quite different
from the structures of Government and what they perceived to be
oppression that they fled.
And that is, even today, equally important, that putting
aside the personal integrity of any of those who work for any
of the agencies that are now before this Committee, there are
certain other intervening factors, and that is to the
allegiance of the Commander in Chief of which you work for, and
the call of that political office to give directions that may
contravene the liberties of the people we have an obligation to
protect. One of the--and I want to be redundant. You don't like
to, but I do want to be redundant in that there is an
unreadiness here, and I believe that we are moving in the wrong
direction rapidly without further review of this legislation,
without a more cooperative collaboration.
I recall that I don't see a statement from the
Administration. I've heard--both of you indicate we're going to
do this or we're going to do that. So I assume you're either
going to funnel amendments in, 24 hours, I guess you expect to
have them in tomorrow. I don't believe that that's sufficient
time for review. But let me now proceed with my line of
questioning, and I am going to go back to the arguments of
definition. I am going to start, Mr. Fein, this time because I
went back to the language. I thought I was going to find
terrorist attack in the Wilson bill.
I don't know if I would find it in the FISA. I believe not.
And I want to--again, whether or not it is seemingly political
for me to try to analyze it from a political perspective, I am
outraged when there is the smear or the taint that when you
speak about civil liberties, all of a sudden you become a
nonpatriot, and you are putting this Nation in jeopardy, and as
a Member, as I said, of the Homeland Security Committee, I take
the security issues and concerns of this Nation to heart, as I
know that my colleagues do as well.
But at the same time, we are looking at a bill, and the
reason why I keep raising the Wilson Bill is it's before us
tomorrow. And it does say simply that the President can declare
this 45-day no constraints whatsoever, following a terrorist
attack against the United States. Does not say on United States
soil. Does not equate to the 9/11 horrific tragedy, which we
frankly understand, but it says against the United States. So
you know just recently, which I abhor, and we certainly
appreciate what seems to be the fast action of the Syrian
government, but as you well know, there was an attack on the
Syrian U.S. Embassy that triggered, that was against the United
States, and we're very grateful for the lack of loss of life of
Americans.
But the question is, would that trigger a warrantless
search for individuals who might have been calling their
mother-in-law in the region? And let me just finish by
suggesting--and I also notice that this allows a President to
submit a notification to each Member of the congressional
Intelligence Committee, and a judge having jurisdiction in the
section would find and then it goes along those lines, but
again, it's important to isolate this feature that we're
talking about, that I don't think Americans know what they're
getting themselves into.
And if you could just be clearer on how we can secure the
homeland and that by arguing against this randomness, that
we're not undermining it.
Mr. Fein. Well, first, with regard to the definition of a
terrorist attack against the United States, because there's not
a special definition in the statute, the ordinary plain meaning
of the word. Attack against the United States would mean
anytime our soldiers in Afghanistan are attacked by Taliban,
which is every day, that's an attack against the United States.
Ms. Jackson Lee. Because there's no limitations.
Mr. Fein. There's no limitations at all. It doesn't say how
large it has to be, it doesn't say if the attack succeeds. It
just means that there is an attack. Every day in Iraq, our
soldiers are attacked by terrorists.
Mr. Lungren. Without objection, the gentlelady is given two
extra minutes.
Ms. Jackson Lee. You are very kind, Mr. Chairman. Thank you
so very much.
Mr. Fein. With regard to protecting the United States and
the American people, certainly that has to be a very paramount
concern. The Constitution is not a suicide pact but surely a
free government has to take some modest risks in order to keep
a democratic and free country alive. If we decided we would
place security above all else, we would simply eliminate the
fourth amendment with regard to everything. We would have a
gestapo. We would policemen at every corner. We would let no
one into the United States.
We would say oh, you can't criticize the Government because
that would embolden the enemy. We have heard if you voted
against Joe Lieberman, that is emboldening the enemy, so that
could be made a crime. If the sole purpose was just security,
that's why you have to have some measured balance between the
two.
And the history of the FISA has shown, even after the
warrantless surveillance program began, that it has worked
effectively as was amended by the PATRIOT Act. And I go back to
the same Department of Justice, July 31, 2002, FISA is
impeccable, it's flexible, it's nimble, it enables us to thwart
terrorists in the bud. What has changed since that time? It
doesn't seem to me there's any showing that these loopholes are
necessary to increase our safety.
Ms. Jackson Lee. Thank you. Mr. Eisenberg, we submitted to
you a resolution from distinguished gentleman, Mr. Wexler, to
get a number of documents. What is the status of that
resolution? And do you have a sentence to tell me whether or
not you were handcuffed before 9/11 because you did not have
the Wilson bill?
Mr. Eisenberg. I'm sorry. I actually don't know what the
status of the Wexler----
Ms. Jackson Lee. Was anyone--because this was unanimous out
of this Committee, we've heard nothing to provide us with
documents, and I am wondering why the act of a congressional
Committee such as the Judiciary Committee has not been
responded to.
Mr. Eisenberg. All I can do is promise to get back to you.
Ms. Jackson Lee. I hope that is the case. Did you hear if
the Wilson bill would have helped you, didn't FISA provide all
the documents necessary if it had been acted upon with respect
to 9/11?
Mr. Eisenberg. Would the Wilson Bill have helped us avert
9/11?
Ms. Jackson Lee. Had any impact on it, yes.
Mr. Eisenberg. It's obviously very difficult to make such a
determination, and I will defer to Mr. Potenza, but my guess is
that it would have. It would have gone a long way toward that
by allowing surveillance in international communications and
allowing NSA to be able to do its activities more easily.
Ms. Jackson Lee. But you would have needed to have the
intelligence and my understanding was the intelligence was
already here on the ground, we just didn't connect the dots. We
didn't get the two intelligence entities together, which is I
think a totally different issue from surveillance. Mr. Potenza,
do you have any insight on that?
Mr. Potenza. I can't say a lot on the public record, but if
we had had this authority, we do think there would--we would
have been able to target some foreign targets that might very
well have not prevented 9/11, but perhaps identified
significant lead information.
Ms. Jackson Lee. But you would have had to have had the
intelligence to do so as well.
Mr. Potenza. We did have--we did have intelligence about
foreign information. What we lacked was a connection between
that foreign information and the United States.
Ms. Jackson Lee. Mr. Chairman----
Mr. Lungren. Because of my inability to handle the light,
I've actually given the lady an extra 5 minutes.
Ms. Jackson Lee. Mr. Chairman, Mr. Chairman, let me yield
back to you. And just say on the public record, there lies the
basis of having more security briefings because Mr. Potenza has
now just opened up another can of worms, and obviously we need
to pursue that in a secured briefing.
But I would officially like to mention on the record that
we would like a response. I think it was out of the Committee,
either unanimous or bipartisan, on the Wexler resolution, and I
would appreciate some reference from the Committee going
forward to the Department of Justice. I thank you very much and
yield back.
Mr. Lungren. I thank the gentlelady for yielding. I just--
before I recognize my friend from Massachusetts, just mention
to the gentleman, Mr. Fein, that I recall the words of Whizzer
White, when he was dealing with this issue, and from a fourth
amendment analysis, and he suggested that the President does
have some primacy in this area, and suggested that that had
been recognized since the beginning of the Republic and
suggested that the President ought to maintain hands-on in any
such foreign surveillance activity and that he have his
Attorney General involved in a hands-on capacity.
So, I mean, there has been recognition of a certain unique
status that the President of the United States has with looking
at foreign intelligence. And what I am trying to find out is,
how we in the Congress appropriately exercise our jurisdiction,
and it seems to me that the power of the purse is essentially
where our power lies, and that, therefore, it's a matter of
proper information given to the Congress. Maybe that gets us
out of this issue of how we can foreclose activity to the
President given to him by the Constitution with statute. The
gentleman from Massachusetts is recognized.
Mr. Fein. If I could just respond to your general
observation. Justice White was certainly correct, and no one
has disputed that in the absence of any congressional action,
the President has inherent authority to gather foreign
intelligence. The issue is does Congress have any authority to
regulate, not to limit that. And it's important to remember
that FISA governs maybe a fraction of a percent of all the
foreign intelligence that the President gathers outside of FISA
because it's abroad. The NSA, in your last hearing, testified
to that extent. So we are asking whether the Congress can
regulate, not eliminate, the small slice of the President's
authority to gather foreign intelligence, and surely the
necessary and proper clause covers that if it covers anything.
Just think of the implication, Mr. Chairman, if Congress
lacks any authority to regulate this tiny ability of the
President to conduct foreign intelligence, then what authority
does it have over anything that applies to the President
whether it relates to law enforcement or otherwise setting
priorities. If you say it's an executive power, the Congress
has nothing to do with it, then that really means we have one
branch of Government.
Mr. Lungren. The executive power is very limited to certain
circumstances, and that is recognized from the beginning of
this Republic of the gathering of foreign intelligence. Now, I
think we could argue about whether or not that should be
limited to areas of conflict as opposed to trade policy, and I
would certainly look at that. But it just seems to me, you do
have a Commander in Chief, you do have a recognition of sort of
singular decision making. I mean, I recall that Benjamin
Franklin even recognized that one of the reasons he wanted to
restrict some information to a Committee of Congress is that
Congress couldn't keep secrets, but that was then and we know
things have changed since then. Gentleman from Massachusetts.
Mr. Delahunt. Yeah. You know, I think, Mr. Fein--I want to
just comment on Mr. Fein's answer because I think he's correct.
There's a balance here, and I would suggest, Mr. Chairman, that
the balance is tipped toward the executive to such an order of
magnitude that it puts the constitutional order at risk. This
debate, or this discourse that we're having here now, is truly
about the role of judicial intervention, to serve as a check
and balance, and what we see is arguments coming from the
executive, you know, to sum it up, just trust us, we have all
these controls, and I am confident that these men and women
that sit here are complying with that.
Mr. Scott. Would the gentleman yield?
Mr. Delahunt. Of course.
Mr. Scott. Gentleman suggested there's a balance. There's
no balance at all when all you're asking the President to do is
get a warrant. It's not a question of whether he listens in,
it's a question of just whether he just goes through the
routine of an ex parte proceeding where the other side has no
ability to gather evidence, and you are--you just certify to a
court in getting a warrant. I mean, you're not validating,
you're not questioning whether he can listen. The question is
whether you have the traditional checks and balances.
Mr. Delahunt. That was, that was my observation about the
role of the judiciary. And judicial intervention, and it
concerns me to hear--and I know that, you know, these decisions
are made at a different--at a different rate and that policy is
established far beyond these men that are representing the
Government here. But I concur with Mr. Fein and others that
express a profound unease about what is happening. And what I
further want to suggest is, that I am, that I am very disturbed
and disappointed in the consultative process that has not
existed between the Executive and this Committee specifically
over the course of the past 6 years. This is not good
legislating, doing this on the fly. We're winging it here
today, going into this hearing tomorrow, and it does not serve
the American people well.
Mr. Lungren. Would the gentleman yield for just a moment?
Mr. Delahunt. Of course.
Mr. Lungren. That's why we talk about checks and balances.
I understand what you're saying. It seems to me in this area,
the checks and balance ought to be between the Executive and
the legislative branch more than the judicial branch, and the
reason I say that is when you're talking about matters of war,
when you're talking about matters of defending yourself against
a foreign enemy, it seems to me the Constitution would suggest
that the two branches that ought to be--would have the prime
responsibility in that would be the legislative and the
Executive rather than the judicial.
In that case, I would suggest that it's a question of us
making sure that we get the proper information so that we can
act with the power of the purse and that may require us to make
some changes with how we operate our Intelligence Committees in
the manner in which they are able to work with the other
Committees of the Congress.
Mr. Delahunt. I hear the Chair's concern, and I don't
disagree, but there's another half to this. And this is the
right of privacy and the fundamental civil liberties of all
individual Americans. That's why we go to war.
Ms. Martin. Mr. Chairman. Mr. Chairman, it if I might----
Mr. Lungren. Let me just say, just remind the gentleman
that we're going to break at 6. If he wants to direct any
questions to our panelists because we promised----
Mr. Delahunt. Ms. Martin, you go ahead and say what you
want to say.
Ms. Martin. I would just like to point out that the
executive branch asked the Congress to establish the foreign
intelligence surveillance court in order to facilitate the
gathering of foreign intelligence in a way that advanced both
its national security interests and the civil liberties, and
that that was fundamentally what was envisioned by the
Congress, and that this conversation about somehow, the Wilson
bill and its allowance of warrantless surveillance would have
been helpful before 9/11 seems to me off point.
What the Wilson bill is not about is says no warrants. We
all agree that terrorists should be surveilled and we all agree
that they can surveil foreigners overseas without any court
order. The question is, should they be able to surveil
individuals inside the United States without a warrant? And
they have given you no argument----
Mr. Delahunt. Reclaiming my time, and the Chair knows,
there's been 20,000 applications under FISA, and there is--I
think in single digits, the number that have been rejected.
With all due respect to the professionals and the career
people, you know, maybe there is inconvenience. Maybe there is
some burdens involved because of circumstances, but at the same
time, I have to tell you, I have not heard of sufficient
burdens that would lead me to support anything but the existing
statute. If there are issues and if there are concerns, let's
do it right. Let's do it in a way that's thoughtful.
You know--and again, this is not directed at the career
professionals. Everybody in this panel knows that this thing's
going and it's going tomorrow, because we have a mid-term
election up and the theme is, you know, national security
because the majority party feels that's their strength. I would
argue that it's--it is not good legislating. It's not good
policy making because this is so important. Let me just end
with one final question that has been given to me. Why does the
Department of Justice and NSA feel that 102(a) needs amendment?
Mr. Eisenberg. Well, I mean I think in part it needs to be
amended because the current 102(a) basically has--as I
understand it, and Mr. Potenza can correct me, has almost no
effect.
Mr. Potenza. I'm not--I'm not sure, Congressman. We could--
we could get back to you with a specific answer on that rather
than try to----
Mr. Lungren. He was just----
Mr. Delahunt. I just want to--I'm ready to stay here until
10 tonight.
Mr. Lungren. Well, the wincing hour having arrived, we
promised we would be finished by 6. I thank everyone for their
attendance. I thank the witnesses for their testimony. The
Subcommittee very much appreciates your contribution. In order
to ensure a full record and adequate consideration of this
issue, the record will be open for additional submissions for 7
days. Any written questions that a Member wants to submit
should be submitted within that same 7-day period. This
concludes the legislative hearing on H.R. 5852, the Electronic
Surveillance Modernization Act. Thank you for your cooperation.
And without objection, Subcommittee stands adjourned.
[Whereupon, at 6:01 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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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
Thank you, Mr. Chairman. I appreciate your holding this additional
hearing on this important issue affecting our traditional notions of
rights, liberties and protections from government intrusion into our
private affairs in a context of secret surveillance without the benefit
of court approval, or review. One of the reason I felt we needed to
hear more about the impact of the pending legislation is because I feel
we are in the dark about what the legislation affects. Let me be clear,
the primary problem confronting the Congress, in my view, is the issue
of whether we are performing our constitutional oversight
responsibilities when we do not hold the Administration accountable to
following the process we set up for conducting surveillance involving
American citizens in America.
If there is some difficulty with the procedures, I expect the
President to bring those to our attention and work with us in our
attempt to address them, just as he has done with the USA PATRIOT bill
and the 25 amendments to FISA we have passed since the 9/11 terrorist
attacks. I do not expect the President to ignore the laws we passed
because he considers them inconvenient, or to set up his own secret
process around th laws that he only reveals when he is caught,
declaring that he is following his own set of laws and procedures he
wrote pursuant to powers he declares himself to have under the
Constitution. I find it insulting and disingenuous to our system of
laws and procedures for someone to suggest it is inconvenient for the
President to comply with them by obtaining a warrant or a court order.
If he is doing what he has chosen to indicate he is doing--surveilling
only Al Qaeada members and those they are in contact with here, I am
confident the FISA court would approve a warrant for that.
Consequently, I am left to wonder whether the real reason the
Administration does not submit the matter to the FISA court is because
of concerns that the available information would not justify a warrant.
The problem is we don't know and I believe our oversight responsibility
requires us to know and assure the American people that the President's
surveillance activities are within the rule of law.
And if the rationale of the legislation is that we are amending
FISA with the hope that the President will then find it enough to his
liking to use it sometimes, when he doesn't chose to keep his actions
in complete secrecy, I am not clear on the need or the desirability of
such legislation. In other words, if this legislation does not control
the parts of TSP affecting American citizens in America, what is the
point of it? I think our Founding Fathers would be shocked to learn
that they had created an unbridled power in the President to secretly
conduct surveillance involving Americans in America without approval of
the courts and I do not believe the courts will find that they did. So
I certainly do not want to see legislation that would purport to
establish or recognize such a power in the President, as I fear the
bill before us does.
And even if I were sure this legislation required the President to
conduct domestic surveillance pursuant to it, I would be concerned
about the broad loopholes it creates in taking currently covered
surveillance activities outside of FISA through redefining what
constitutes ``electronic surveillance.'' I would also be concerned with
what we mean by provisions in the bill such as what constitutes and
``armed attack'' against us triggering the warrantless 60-day window?
Was the attack on the American Embassy in Syria this morning an armed
attack that would invoke a 60-day warrantless period in this country?
I would also want to know what is meant by ``terrorist attack'' in
the bill which invokes potentially endlessly renewed 45-day warrantless
periods. Does it include attempts or conspiracies to launch a terrorist
attack? If not, why not? Was the recent plot discovered in Great
Britain to blow up planes headed for America such a terrorist Attack?
These are just a few of the problems I have with the bill in the
context under which we are considering it. So, I look forward to the
testimony of our witnesses, Mr. Chairman, with th hope they will be
able to enlighten us on these and other issues and concerns with the
legislation. Thank you.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Let me state at the outset that I strongly support intercepting
each and every conversation involving al-Qaeda and its supporters--
whether in the United States or abroad. Having said that, I have
serious concerns about this Committee taking up legislation that simply
codifies an unlawful surveillance program and which further and
unjustifiably expands the President's authority. My concerns include
the following:
First, it has yet to be explained why we need to gut the Foreign
Intelligence Surveillance Act (FISA) and the Fourth Amendment in order
to protect our citizens. The current law already allows for streamlined
court approved wiretaps and includes an emergency exception which
allows wiretapping without a court order for up to 72 hours. If the
Attorney General needs more resources, additional time, or the ability
to delegate this responsibility to other trusted officials, I am sure
the Members of this Committee could come together to do that. However,
there appears to be no cause to revamp FISA on the fly and permit the
wholesale interception, storage, and unlimited usage of the contents of
the communications of innocent Americans without a warrant.
Second, this Committee continues to be handicapped by the fact that
nearly nine months after we first learned of the warrantless
surveillance program, there has been no attempt to conduct an
independent inquiry into its legality. Not only has Congress 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 Department of Defense Inspector Generals.
When the DOJ Office of Professional Responsibility finally opened an
investigation, the President himself squashed it by denying the
investigators security clearances. Furthermore, the DOJ has completely
ignored the numerous questions posed by this committee, the Wexler
Resolution of Inquiry we previously adopted, as well as our request for
a full classified briefing on the program.
Third, we have not received a shred of evidence that the domestic
spying program has led to actionable intelligence involving terrorism.
FBI Director Mueller has stated that the warrantless surveillance
program had not identified a single Al Qaeda representative in the
United States since the September 11 attacks. A former prosecutor
stated that ``[t]he information [from the program] was so thin, and the
connections were so remote, that they never led to anything, and I
never heard any follow-up.'' An FBI official said the leads were
``unproductive, prompting agents to joke that a new bunch of tips meant
more calls to Pizza Hut.''
So, given that emergency wiretaps are permitted under FISA, there
has yet to be an independent review of the facts surrounding the
domestic spying program, and the program has not yielded meaningful
intelligence, how is it possible that this Committee and this Congress
appear to be on the verge of ratifying and enlarging an unlawful
program two weeks before we adjourn? The GOP Leadership told The New
York Times last week--they want to spend the next few weeks
``concentrat[ing] on national security issues they believe play to
their political strength.'' In other words, its politics, plain and
simple.
If Congress were really serious about fighting terrorism, we would
fully implement the 9/11 Commission recommendations. If we were truly
interested in airline security, we would have developed a system to
identify liquid explosives and to screen and inspect commercial air
cargo. If we really cared about port security, we would screen more
than 3% of containers before they enter our country, and secure our
chemical plants. If we really cared about nuclear proliferation, we
would work with the members of the former Soviet Union to adequately
secure their ``loose nukes.'' If we were serious about capturing or
killing bin Laden, we wouldn't have outsourced the job to Afghanistan
or broken up the CIA's bin Laden unit. And if we truly wanted to
prevent terrorism, instead of spending $2 billion per week occupying
Iraq, we would use those funds to protect our Nation and secure our
borders.
I believe that the lesson of the last five years is that if we
allow intelligence, military and law enforcement to do their work free
of political interference, if we give them requisite resources and
modern technologies, if we allow them to ``connect the dots'' in a
straight forward and non-partisan manner, we can protect our citizens.
We all want to fight terrorism, but we need to fight it the right way,
consistent with our Constitution, and in a manner that serves as a
model for the rest of the world. This bill does not meet that test.
