LEGISLATIVE PROPOSALS TO UPDATE THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT (FISA)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 6, 2006
__________
Serial No. 109-136
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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SEPTEMBER 6, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 4
WITNESSES
Mr. Steven G. Bradbury, Acting Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Robert L. Deitz, General Counsel, National Security Agency
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Mr. Robert D. Alt, Fellow, Legal and International Affairs, The
John M. Ashbrook Center for Public Affairs, Ashland University
Oral Testimony................................................. 22
Prepared Statement............................................. 25
Mr. Jim Dempsey, Policy Director, Center for Democracy and
Technology
Oral Testimony................................................. 32
Prepared Statement............................................. 35
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 91
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan and
Ranking Member, Committee on the Judiciary..................... 92
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 93
Prepared Statement of the Honorable Jane Harman, a Representative
in Congress from the State of California....................... 94
Letter from the Honorable Sheila Jackson Lee to the Honorable F.
James Sensenbrenner, Jr., and the Honorable John Conyers, Jr... 95
Letter to the Honorable Peter Hoekstra and the Honorable Jane
Harman from Caroline Fredrickson, Director of the Washington
Legislative Office, and Lisa Graves, Senior Counsel for
Legislative Strategy, American Civil Liberities Union (ACLU)... 96
NewsweekArticle, ``Palace Revolt,'' dated February 6, 2006....... 102
H.Res. 819, Requesting the President and directing the Attorney
General to submit to the House of Representatives all documents
in the possesion of the President and the Attorney General
relating to requests made by the National Security Agency and
other Federal agencies to telephone service providers
requesting access to telephone communications records of
persons in the United States and communications originating and
terminating within the United States without a warrant......... 108
LEGISLATIVE PROPOSALS TO UPDATE THE FOREIGN INTELLIGENCE SURVEILLANCE
ACT (FISA)
----------
WEDNESDAY, SEPTEMBER 6, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:06 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good afternoon, ladies and gentlemen. The
hearing on updating the Foreign Intelligence Surveillance Act
(FISA) will come to order.
Next Monday, as you all know, is September 11, and we will
mark the fifth anniversary of the heinous attacks that killed
almost 3,000 Americans on U.S. soil. While we remember those
lost, we also must not forget those who continue to put their
lives on the line here and abroad to prevent subsequent
attacks.
The enemy we face, in my opinion, is not our law
enforcement nor our intelligence community, who are working to
thwart the terrorists set out to destroy our Nation. The enemy
we face furthermore is not brave, ethical or humane. The enemy
we face, it seems to me, is cowardly, despicable and inhumane.
This enemy flies into buildings, straps bombs onto teenagers to
kill innocent bystanders, and continues to plan an attempt to
kill even more Americans. More recently, you all know about the
Great Britain effort to thwart a plan to blow up planes headed
for the United States.
We face an enemy who does not want land, does not want
rights, does not want to negotiate. This enemy wants death and
destruction, our death and destruction. The men and women in
law enforcement and the intelligence community need tools that
are streamlined and updated to match the technology and efforts
of the terrorists.
Knowing that this is a threat we must defeat, Congress
continues to update the laws. Today the Subcommittee will
examine a number of proposals that affect foreign intelligence
gathering and the need to improve such surveillance.
I believe that the vast majority of people agree that we
need to conduct and support surveillance against terrorists. We
can't have done this while protecting civil liberties. We need
to have a constructive debate over how to ensure that our law
enforcement and intelligence community are on equal footing
with these killers. As is often said, the terrorists have to be
lucky only once to kill and maim Americans. We have to be
correct in every instance.
I look forward to the testimony of our witnesses on how to
improve FISA; and now I am pleased to recognize the
distinguished gentleman from Virginia, the Ranking Member of
the Committee, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I want to thank you for
holding the hearing on the various proposals to address the NSA
surveillance issues. However, this is really a broader issue
than encompassed by the various proposals and certainly a
broader issue than the minority can address with one witness
with a 5-minute statement. So I am hopeful this is merely the
start of a series of hearings on this subject area.
I look forward to working with you to fully explore the
issue on how Government can appropriately and effectively
conduct surveillance on those who would harm Americans without
the Government harming Americans through the violation of their
rights, freedoms, privacies and protections under the law.
When law enforcement and intelligence officials have
something or someone on whom they deem it appropriate to
conduct surveillance, I find it insulting and disingenuous to
our system of laws and procedures for someone to suggest that
they cannot conduct that surveillance because of the need to
comply with the Constitution, constitutional procedures which
have been in effect for over 200 years. Our order suggests that
it is inconvenient to comply with them by obtaining a warrant,
and therefore they can't do it at all because it is
inconvenient.
It is not inadequate or consistent with our system of
checks and balances of Government authority and power to
suggest that notifying some Members of Congress under
circumstances where Members can go to jail for telling the
public what they know, that is not a check and balance that we
traditionally have. Unfortunately, under the proposals before
us that are likely to get consideration, here we go again using
terrorism as a basis to greatly expand the Government's
authority to conduct surveillance on innocent Americans in the
United States without having to demonstrate to a court or any
other detached entity that there is a reasonable basis for such
surveillance.
First of all, Mr. Chairman, we don't even know what kind of
surveillance is currently being done by NSA. The logic used by
the Administration, that they have said publicly, to listen in
to calls coming into the United States applies equally to those
calls that are domestic as well as those that are initiated
abroad. Yet without any public or otherwise effective oversight
and assessment of what the President through the NSA is doing
secretly to conduct surveillance in America and whether or not
that is legal would not only designate it as legal but greatly
expanding his opportunity to do so.
Now, we have seen numerous instances in this Administration
where it sees itself above the traditional boundaries of law.
We saw it with the process where they just declare someone an
enemy combatant, including American citizens, and holding them
indefinitely with no end in sight and depriving them of all
rights and remedies to even contest their designation. And when
the Administration finally did have to acknowledge the
necessity for charging and trying the accused persons, the
decision was made to try them through military tribunals, which
don't have the traditional checks and balances that other
procedures have.
We also saw the same approach to policies promoted by the
torture memorandum leading to the Abu Ghraib torture incidents.
In addition, we saw it with the Attorney General's decision to
listen in on attorney/client conversations to detain persons.
And now with previously secret decisions to listen in on
conversations of Americans coming into or going out of the
country, and whatever else they are doing, we just don't know
because we haven't called on them to account for this to this
oversight Committee, and we haven't gotten answers to the
questions that we proposed.
All of these activities avoid any approval or scrutiny of
the courts. We only find out the true nature of what is
happening when it is brought to the courts through challenges
to the constitutionality, as we found with the Padilla and the
Hamdan cases, and now we see it with the NSA case brought by
the ACLU, which is working its way through the courts after the
initial finding that the process is unconstitutional.
So instead of moving now to try to cloak the activity in a
veil of legitimacy, now, instead of trying to figure out what
they are doing, we are simply cloaking the activity through a
veil of legitimacy through legislation. Rather than doing that,
we should wait at least until the court's final determination
or at least have the Administration proceed on its case where
it would seek FISA's court review of its activities.
It is simply unacceptable to Americans that a call made or
received by citizens in this country can be listened to or
otherwise intercepted by the Government without approval or
review by a court with authority to authorize or deny such
interception based on whether good cause is shown. To do so is
tantamount to operating under a police state and in variance to
some of the most basic, fundamental principles upon which this
Nation was founded. And all of this is done without any
presentation or indication of a need for such sweeping
additional governmental authority over citizens' private
affairs or any credible evidence or finding of any inadequacies
in the current law to justify such a drastic change.
One protective thing to note is the Wilson-Sensenbrenner
and the Specter bills. One thing they do, by analogy, is to
confirm by inference that the current NSA surveillance activity
is patently illegal; otherwise, there would be no need for
those bills to be introduced. So I hope you will carefully
study this issue, Mr. Chairman, and move to require the
Administration to be in compliance with existing law.
There is no inconsistency to protecting us from terrorism
and remaining a country which operates under the rule of law.
We should first assure compliance of existing law, then
determine whether any changes are needed to provide for greater
effectiveness on the part of law enforcement; not change the
law just to conform to what we think the Administration might
be doing.
I look forward to the testimony of our witnesses on this
important issue, Mr. Chairman; and again, hope that this is one
of a series of hearings so that we can fully figure out what is
going on.
Mr. Coble. I thank the gentleman from Virginia.
Prior to recognizing the distinguished gentleman from
Michigan, the Ranking Member of the Full Committee, I will say
to the Members of the Subcommittee, all Members may without
objection may have their statements included into the record.
The gentleman----
Mr. Scott. Mr. Chairman, could I recognize--we have one
person who is not a Member of the Committee, Ms. Jane Harman,
who is the ranking Democrat on the Intelligence Committee.
Mr. Coble. I was going to recognize her separately. I think
not.
Good to have you both with us.
And now the distinguished gentleman from--oh, Mr. Delahunt
and Mr. Chabot and Mr. Flake from Arizona and Ohio.
Mr. Delahunt from Missouri--strike that. From
Massachusetts. I will be okay. It has been a tough work period.
Mr. Delahunt. Missouri?
Mr. Coble. I will talk to you about that later.
The gentleman from Michigan for his opening statement, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Coble, and to our friends
and Members who have joined us.
First of all, I would like to recognize the witnesses, Mr.
Dempsey and Mr. Bradbury, Mr. Deitz, Mr. Alt. And also I would
like unanimous consent to put in the record the American Civil
Liberties Union letter written by ACLU Director Fredrickson.
Mr. Coble. Without objection, that will be accepted.
[The information referred to follows in the Appendix]
Mr. Conyers. Thank you very much.
And I am very happy that we have permitted Ranking Member
Jane Harman of the Intelligence Committee to join us today. I
am sorry that we may not be able to permit her to make any
statements. I would be willing to give her some of my time, if
not all of it, actually because of the good work she has done
on the legislation that we are now also considering before the
Committee.
But at any rate, she has a statement that I would like
unanimous consent to have put in the record.
Mr. Coble. Without objection.
[The prepared statement of Ms. Harman follows in the
Appendix]
Mr. Coble. Mr. Conyers, would you yield to me?
Mr. Conyers. Of course.
Mr. Coble. Ms. Harman, we are delighted to have you here.
In light of consistency, we have never permitted a Member who
does not sit on the Full Committee to take part. We will be
glad to have your statement in the record.
Thank you, Mr. Conyers.
Mr. Conyers. Thank you very much.
I start out on the premise, building upon our Ranking
Subcommittee Member Scott's excellent set of observations, and
I join with him in urging that there be additional hearings on
this subject matter. I start out on the point that we strongly
support intercepting each and every conversation involving al-
Qaeda and its supporters whether in the United States or
anywhere else. But the concerns that we meet here today about
are whether it is a sensible thing to do to take up legislation
that simply codifies an unlawful surveillance program and which
further unjustifiably expands the President's authority.
The current statute on this subject allows for court-
approved wiretaps and includes an emergency exception allowing
wiretapping without a court order for up to 72 hours. And it
seems to me that that is the first hurdle we have got to get
over.
If additional resources are needed to comply with the law
and the Fourth Amendment, we should authorize them. I think we
would be more than happy to do that. But since September 11, we
have made more than 25 separate changes in the Foreign
Intelligence Surveillance Act at the Administration's request
and thousands of wiretaps have been approved by the courts,
hundreds of emergency orders have been issued. Very few adviser
requests are turned down and the court itself has streamlined
its procedures to accommodate the Administration's needs.
We have done everything that's been requested of us. And
the Administration has still chosen to act unilaterally and
outside the law.
Nine months after we have learned about this warrantless
surveillance program, there has been almost--little or no
independent inquiry into its legality. Not only have we failed
to conduct any sort of investigation, but the Administration
summarily rejected all requests for special counsels as well as
reviews by the Department of Justice and the Department of
Defense Inspectors General.
When the Department of Justice finally opened an
investigation, the President himself squashed it by denying the
investigators security clearances. The Department of Justice
has completely ignored numerous questions posed by this
Committee, as well as the Wexler resolution of inquiry that we
previously adopted.
We have got some big problems here and I would ask that the
remainder of my opening statement be included in the record,
and I thank you for the permission to make it at this time.
Mr. Coble. I thank you, Mr. Conyers.
[The prepared statement of Mr. Conyers follows in the
Appendix]
Mr. Coble. Gentlemen, as part of the Subcommittee, I need
to swear in all witnesses appearing before us so if you would
please stand and raise your right hand.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
Mr. Delahunt. Mr. Chairman, before we hear from the
witnesses, if I could inquire of the Chair, it was my
understanding that the Chairman of the Full Committee, Mr.
Sensenbrenner, was going to consider the Wexler resolution of
inquiry as a subpoena--I don't want to mischaracterize it--and
presumably there was going to be, from the passage of the
resolution of inquiry coming out of this Committee, some
consultation between the Department of Justice, the White House
and the Committee.
If you know, Mr. Chairman, has there been any discussion
regarding these issues?
Mr. Coble. I believe, Mr. Delahunt, if you yield----
Mr. Delahunt. I yield.
Mr. Coble.--I think that we are awaiting a response from
DOJ.
Mr. Delahunt. Well, I think it is important, if you have it
readily available, to enter into the record the date of the
resolution of inquiry, because I would have expected and
anticipated that a 6- or 7-week period would have been
sufficient time for the Department of Justice to provide this
Committee, the Committee that has jurisdiction over the
Department of Justice, the information that was requested.
Mr. Coble. If the gentleman would yield again, I concur. I
do think ample time has expired and a response should be in
hand.
Let me talk to the Chairman about that subsequent, Mr.
Delahunt, and that is all I can say about that.
Mr. Delahunt. Maybe Mr. Bradbury can enlighten us.
Mr. Bradbury. Unfortunately, I am not in a position to--I
am not involved in the discussions, and I don't know the status
of that request.
Mr. Conyers. Mr. Chairman, can I ask unanimous consent that
the Wexler resolution be included in the record?
Mr. Coble. Is there any objection?
Without objection.
[The information referred to follows in the Appendix]
Mr. Conyers. Thank you.
Mr. Coble. Mr. Delahunt, are you finished? I cut you off.
Mr. Delahunt. You didn't cut me off, and I appreciate you
giving me the time.
I just find it disturbing that we don't know. We know
nothing about the program. We know nothing about even whether
there has been communication between the Department of Justice
and this Committee.
I mean, I just have to associate myself with the remarks of
Mr. Scott. I mean, I am sure this will be a very nice and
cordial conversation among these distinguished gentlemen and we
will have a chance to banter back and forth with our friends
from Texas.
Mr. Gohmert. Will the gentleman yield?
Mr. Delahunt. Of course.
Mr. Gohmert. I am curious whether the Jefferson raid on his
office may be precedent for the fact that when an entity fails
to respond to a request for documents for a certain length of
time, if that allows you to get the local law enforcement or
the Capitol Police and go raid an office to obtain that
information. I am not sure which precedent that set.
Mr. Delahunt. Reclaiming my time. That is a very
interesting observation. But I just feel, and again with great
respect to the Chair, I feel we are being played with.
You know, I don't want to look like we are the Bundestag
during the Third Reich and just roll over for an Administration
that is going to say to us, we will get around to it when we
feel like it.
I hope that is not the case, but it has the appearances,
Mr. Chairman, of--well, we are going to have a hearing today,
and like I said, I am sure it will be interesting, kind of an
academic exercise. But I don't think any Member of this panel--
on either side, Republican or Democrat, we don't know anything,
and I think that we have a constitutional right and out of just
simple comity, respect for this institution, that that response
should have been forthcoming. If it's the position of the
Department of Justice that they refuse to respond to this
Committee and--by the way, a majority of which is Republican,
then I think we ought to know about that.
With that, I yield back.
Mr. Coble. I thank the gentleman.
We have four distinguished visitors, witnesses, with us
today. And, folks, I don't want to sound like we are trying to
buggy-whip anybody. I regard myself as a--pardon my immodesty,
as a pretty easy dog to hunt with, as is Mr. Scott. But, folks,
we received one statement late last night and one statement
late this morning. Just take back to your superiors that timely
presentation of statements would afford us a little more luxury
in preparing for the hearing.
Let me introduce the distinguished witnesses with us today.
Our first witness is Mr. Steve Bradbury, Acting Assistant
Attorney General for the Office of Legal Counsel at the
Department of Justice. Prior to working for the Department of
Justice, Mr. Bradbury was a partner with the law firm of
Kirkland & Ellis, LLP, and prior to that served as a law clerk
to Justice Clarence Thomas of the Supreme Court.
Mr. Bradbury obtained his undergraduate degree from
Stanford University and his J.D. from the Michigan School of
Law, where he was graduating magna cum laude.
Our second witness is Mr. Robert Deitz, General Counsel of
the National Security Agency. Mr. Deitz has served as General
Counsel of the NSA since 1998, as well as periodically serving
as Acting General Counsel for the National Geospatial
Intelligence Agency and Acting Deputy Counsel For Intelligence
at the Department of Defense. Prior to working for the NSA, Mr.
Deitz was a partner in the Washington, DC, office of Perkins
Coy.
He received his B.A. with honors from Middlebury College,
M.B.A. from the Woodrow Wilson School of Public and
International Affairs at Princeton University and his J.D. from
the Harvard School of Law where he was graduated magna cum
laude.
Our third witness is Mr. Robert Alt. He is a Fellow in
Legal and International Affairs at the John M. Ashbrook Center
for Public Affairs at Ashland University, where he has taught
classes on constitutional law, political parties and interest
groups. Most recently, he was made a Fellow at the Institute of
Global Security Law & Policy at the Case School of Law, for
which we add our congratulations.
Mr. Alt has published articles in numerous media
publications including the Wall Street Journal, the Washington
Times and the San Diego Union Tribune and has provided
commentary on several major news networks. Mr. Alt received his
J.D. Degree from the University of Chicago.
Our final witness, Mr. Jim Dempsey, is Policy Director for
the Center for Democracy and Technology. Mr. Dempsey has been
with the Center since 1997 and previously served as Executive
Director. Prior to joining the Center for Democracy and
Technology, Mr. Dempsey was the Deputy Director for the Center
for National Security Studies, and prior to that he served as
Assistant Counsel for the House Judiciary Subcommittee on Civil
and Constitutional Rights.
Good to have you back on the Hill, Mr. Dempsey.
Mr. Dempsey also practiced in areas of Government and
commercial contracts, energy law and antitrust while an
associate with the Washington, D.C., law firm of Arnold &
Porter. He maintained that extensive pro bono reputation of
death row inmates in Federal habeas proceedings.
Now I apologize to all of you for my lengthy, detailed
introduction, but I think it is important for all of us,
including those in the hearing room, to know the credentials
that witnesses do indeed bring to the table at these hearings.
Gentlemen, as you all have been previously advised, we
operate under the 5-minute rule. When you see that amber light
appear in your face, you will know that your time is running
out. You will have a minute at that point. Now, no one is going
to be keyholed if you violate the 5-minute rule but when the
red light appears, that is your warning that the 5 minutes have
elapsed, and we would ask you to conclude at that point.
Mr. Bradbury, we will start with you.
TESTIMONY OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Bradbury. Thank you, Mr. Chairman, Ranking Member
Scott, distinguished Members of this Committee.
As we approach the 5-year anniversary of 9/11, the single
deadliest foreign attack on U.S. soil in our Nation's history,
we recognize what our enemies well knew long before 9/11. We
are at war. The enemies we face today operate in obscurity
through secret cells that operate globally while plotting to
carry out attacks from within our own communities. Less than 1
month ago, British security services neutralized a planned
attack program only days from execution. These terrorists
planned to use sophisticated explosives, capable of evading
airport screenings, to blow up perhaps a dozen airliners bound
for the United States.
We can all agree that foreign intelligence surveillance is
a critical tool in our common effort to prevent another
catastrophic terrorist attack on the United States. At the same
time, we all recognize the fundamental challenge the war on
terror presents for a free society. We must detect and prevent
the next 9/11 while steadfastly safeguarding the liberties we
cherish. As we seek to reframe FISA, we must ensure that we
retain the constitutional balance between security and liberty.
The 28 years since the enactment of FISA have seen one of
the greatest transformations in modes of communication of any
period in history. In 1978, almost all transoceanic
communications into and out of the United States were carried
by satellite, and Congress intentionally kept those
communications largely outside the scope of FISA's coverage
consistent with FISA's primary focus on domestic communications
surveillance. At that time, Congress did not anticipate the
technology revolution that would bring us global, high-speed
fiber-optic networks, the Internet, e-mail and disposable cell
phones.
Innovations in communications technology have fundamentally
transformed how our enemies communicate, and therefore how they
plot and plan their attacks. It is more than a little ironic
that al-Qaeda expertly exploits the communication tools of the
Internet Age to advance extremist goals of intolerance and
tyranny that are more suited to the 12th century than the 21st.
Meanwhile, the United States, the most advanced nation on
earth, confronts the threat of al-Qaeda with a legal regime
primarily designed for the last century and a Cold War
adversary that no longer exists.
The President authorized the terrorist surveillance program
in the wake of 9/11 in order to establish an early warning
system to detect and prevent further al-Qaeda attacks. As
described by the President, that program, which has been the
subject of numerous prior congressional hearings and extensive
oversight by the Intelligence Committees of both Houses of
Congress, involves the NSA's monitoring of international
communications into and out of the United States where there
are reasonable grounds to believe that at least one party to
the communication is a member or agent of al-Qaeda or an
affiliated terrorist organization. The terrorist surveillance
program places the initial decision to target communications
for interception in the hands of highly trained intelligence
professionals subject to rigorous oversight. This program
preserves the speed and agility necessary for wartime
surveillance.
Congress is currently considering several pieces of
legislation addressing FISA and the terrorist surveillance
program. I want to thank the Members of Congress for their hard
work toward crafting a comprehensive approach that will help us
protect the Nation from terrorists and other foreign threats,
gather critical foreign intelligence more effectively and still
protect civil liberties. In particular, I want to thank
Representative Wilson, who sits on the Intelligence Committee
and has introduced a bill, cosponsored by Sensenbrenner and
Hoekstra, which seems to move FISA into the 21st century. I
intend to focus my remarks today primarily on Representative
Wilson's bill.
Fundamentally, her legislation recognizes that in times of
armed conflict involving an exigent terrorist threat, the
President may need to act with agility and dispatch to protect
the country by putting in place a program of electronic
surveillance targeted at the terrorists and designed to detect
and prevent the next attack. We see promise in this bill and
hope we can work with Congress in producing legislation quickly
that addresses the threats that face the Nation.
I would point out that this bill, however, would require
the President to wait for the United States actually to be
attacked before he could initiate an electronic surveillance
program under this Administration. We think the President
cannot and should not wait for thousands of Americans to die
before initiating vital intelligence collection.
Article II of the Constitution, as we have explained in the
paper that we provided to Congress back in January, already
gives the President the authority to take such actions to
defend the Nation. And to use the words of the FISA Court of
Review, nothing in FISA could ``encroach on the President's
constitutional power.'' We believe it is important that
Congress support and assist the President in performing this
most solemn constitutional obligation.
Representative Wilson's bill also includes several
important reforms to update FISA for the 21st century. These
changes are designed to account for the fundamental changes in
technology that have occurred since FISA's enactment in 1978
and to make FISA more effective and more useful in addressing
the foreign intelligence needs of the United States.
Changes contained in the bill would correct the most
significant anachronisms in FISA. It would also make some
significant changes to streamline the FISA application process.
These provisions in Representative Wilson's bill offer a good
start toward important improvements toward the existing FISA
process, but further refinements are appropriate.
The Executive Branch has been working and will work hard to
solve the problems represented by updating the FISA statute,
and we will work with Representative Wilson and with Members of
Congress to put refinements in this legislation and improve it
so that it gets the job done in a way that will best protect
the country and preserve our liberties.
Again, Mr. Chairman, thank you for the opportunity to
appear today on this important issue.
Mr. Lungren. [Presiding.] Thank you, Mr. Bradbury.
[The prepared statement of Mr. Bradbury follows:]
Prepared Statement of Steven G. Bradbury
Mr. Lungren. Mr. Deitz.
TESTIMONY OF ROBERT L. DEITZ, GENERAL COUNSEL, NATIONAL
SECURITY AGENCY
Mr. Deitz. Good afternoon, Mr. Chairman, Ranking Member
Scott and Members of the Committee.
I am pleased to be here today to provide testimony in
support of legislative efforts to amend the Foreign
Intelligence Surveillance Act of 1978. Changes are needed, I
believe, in order to recapture the original constitutional
intent of the statute regulating the electronic surveillance of
persons within the United States as the Government engages in
electronic surveillance. At the same time, surveillance
directed at individuals who are not due protection under the
Fourth Amendment should be removed from the statute's coverage.
Some of the specifics that support my testimony cannot be
addressed in open session, and while I would be happy to
elaborate on the technological changes that have taken place
since 1978 in an appropriate setting, the essential point can
be made very clearly and publicly.
Communications technology has evolved in the 28 years
between 1978 and today in ways that have had unforeseen
consequences under FISA. Technological changes in the
communications environment have brought within FISA's scope
communications that we believe the 1978 Congress did not intend
to be covered and that were excluded from the act's scope.
Despite this change, NSA's mission remains the same. NSA
intercepts communications to protect the lives, liberties
and well-being of the citizens of the United States from
those who would do us harm. Today, NSA is often required by the
terms of FISA to make a showing of probable cause, a notion
derived from the Fourth Amendment in order to target for
surveillance the communications of a foreign person overseas.
Frequently, though by no means always, that person's
communications, in turn, are with another foreign person
overseas. In such cases, the current statutory requirement to
obtain a court order based on a showing of probable cause slows
and in some cases prevents altogether the Government's efforts
to conduct surveillance of communications it believes are
significant to the national security.
The FISA seeks, in our view, to permit the surveillance of
foreign intelligence targets while providing appropriate
detection through court supervision to U.S. citizens and to
other persons inside the United States. As the legislative
history of the 1978 statute states, ``The history and law
relating to electronic surveillance for 'national security'
purposes have revolved around the competing demands of the
President's constitutional powers to gather intelligence deemed
necessary for security of the nation and the requirements of
the Fourth Amendment.''
While debates concerning the extent of the President's
constitutional powers were heated in the mid-1970's, as they
indeed are today, we believe that the judgment of Congress at
that time was that it was only when significant Fourth
Amendment interests were implicated that court supervision was
important. Yet the Fourth Amendment is clearly not always at
issue when NSA or another intelligence agency acts, and the
FISA on its face never sought to encompass all activities of
the NSA within its coverage. Rather, the definitions of the
term ``electronic surveillance'' contained in the statute have
always affected just a portion, just a portion of NSA's signals
intelligence mission. Indeed, by far the bulk of NSA's
surveillance activities take place overseas, and these
activities are directed entirely at foreign countries and
foreign persons within those countries.
All concerned agree, and to my knowledge have always
agreed, that the FISA does not and should not apply to such
activities. When NSA undertakes surveillance, that does not
mean--I am sorry, when NSA undertakes surveillance that does
not meet any of the definitions of electronic surveillance
contained in the FISA, it does so lawfully under Executive
Order 12333 without any resort to the FISA court.
In addition, even as it engages in its overseas mission, in
the course of targeting the communications of persons overseas,
NSA will sometimes encounter communications to, from or about
U.S. persons. Yet this fact does not in itself cause the FISA
to apply to NSA's overseas surveillance activities, and to my
knowledge, no serious argument exists that it should. Instead,
at all times, NSA applies procedures approved by the U.S.
Attorney General to all aspects of its activities, seeking
through these procedures to minimize--it is a term of art--the
acquisition, retention and dissemination of information
concerning U.S. persons. These procedures have worked well for
decades to ensure the constitutional reasonableness of NSA's
surveillance activities, and eliminate from intelligence
reports, incidentally, information concerning U.S. persons that
does not constitute foreign intelligence. Accomplishing this
has never required a court order.
Because of the way the definition of electronic
surveillance contained in the current statute is constructed,
NSA must answer four questions in order to determine whether a
FISA order is required for it to engage in electronic
surveillance. These questions concern the nationality of the
target, the location of the target, the means by which the
target is communicating and the location from which the
communications will be carried out. We believe that the truly
significant question on the list is the one that gets to the
heart of the applicability of the Constitution, that is, the
location of the target of surveillance. The other questions
reflect a common-sense approach to 1978 technology that worked
well then, but that today has unintended consequences. They are
ancillary, if not irrelevant, to the more fundamental issue.
Thus, in some cases, the location from which NSA seeks to
acquire communication becomes a question clothed in undue
significance. So, too, the technology employed by the provider
of the communication service can in some cases be dispositive
of whether the Government must obtain a FISA order or not. We
think this is far from what was intended by the statute
supporters in 1978 and requires change.
Mr. Chairman, I know my time has elapsed. May I have
another minute or two, please?
Mr. Coble. Well, go ahead, but wrap it up.
Mr. Deitz. Thank you. I will be very quick.
Mr. Coble. And in a sense of fairness and equity, I will
also be equally liberal to the two remaining witnesses. But
move it along.
Mr. Deitz. In our view, the FISA should be returned to what
we believe was its original purpose of regulating foreign
surveillance targeting persons in the United States, not the
surveillance of non-U.S. persons overseas who are not entitled
to constitutional rights.
And if I may conclude, we think that these principles that
I have articulated, clearly and artfully captured in parts of
the original FISA legislation and in its legislative history,
should extend to all surveillance under the FISA. The need for
a court order should not depend on whether NSA's employees
conducting the surveillance are inside the United States or
outside the United States, nor should it depend on whether the
communications meet the technical definition of ``wire
communications'' or not.
Thank you, Mr. Chairman, and if I could, I request the
remainder of my statement be placed in the record.
Mr. Coble. Without objection.
[The prepared statement of Mr. Deitz follows:]
Prepared Statement of Robert L. Deitz
Good morning Mr. Chairman, Ranking Member Scott, and Members of the
Committee.
I am pleased to be here today to provide testimony in support of
legislative efforts to amend the Foreign Intelligence Surveillance Act
of 1978. Changes are needed, I believe, in order to recapture the
original Congressional intent of the statute--regulating the electronic
surveillance of persons within the United States--as the Government
engages in electronic surveillance. At the same time, surveillance
directed at individuals who are not due protection under the Fourth
Amendment should be removed from the statute's coverage.
Some of the specifics that support my testimony cannot be discussed
in open session, and while I would be happy to elaborate on the
technological changes that have taken place since 1978 in an
appropriate setting, the essential point can be made very clearly and
publicly: communications technology has evolved in the 28 years between
1978 and today in ways that have had unforeseen consequences under
FISA. These stunning technological changes in the communications
environment have brought within FISA's scope communications that we
believe the 1978 Congress did not intend to be covered and that were
excluded from the Act's scope.
Despite this change, NSA's mission remains the same. NSA intercepts
communications to protect the lives, the liberties, and the well-being
of the citizens of the United States from those who would do us harm.
Today, NSA is often required by the terms of FISA to make a showing of
probable cause, a notion derived from the Fourth Amendment, in order to
target for surveillance the communications of a foreign person
overseas. Frequently, though by no means always, that person's
communications are with another foreign person overseas. In such cases,
the current statutory requirement to obtain a court order, based on a
showing of probable cause, slows, and in some cases prevents
altogether, the Government's efforts to conduct surveillance of
communications it believes are significant to the national security.
The FISA seeks--we believe--to permit the surveillance of foreign
intelligence targets, while providing appropriate protection through
court supervision to U.S. citizens and to other persons in the United
States. As the legislative history of the 1978 statute states: ``[t]he
history and law relating to electronic surveillance for `national
security' purposes have revolved around the competing demands of the
President's constitutional powers to gather intelligence deemed
necessary for the security of the nation and the requirements of the
Fourth Amendment.'' \1\ While debates concerning the extent of the
President's constitutional powers were heated in the mid-1970s, as
indeed they are today, we believe that the judgment of Congress at that
time was that it was only when significant Fourth Amendment interests
were implicated that court supervision was important .
---------------------------------------------------------------------------
\1\ H.Rpt. 95-1283 at p. 15, 95th Congress, 2d Session, June 8,
1978.
---------------------------------------------------------------------------
Yet the Fourth Amendment is clearly not always at issue when NSA or
another intelligence agency acts, and the FISA on its face never sought
to encompass all activities of the NSA within its coverage. Rather, the
definitions of the term ``electronic surveillance'' contained in the
statute have always affected just a portion of NSA's signals
intelligence mission. Indeed, by far the bulk of NSA's surveillance
activities take place overseas, and these activities are directed
entirely at foreign countries and foreign persons within those
countries. All concerned agree, and to my knowledge have always agreed,
that the FISA does not and should not apply to such activities. When
NSA undertakes surveillance that does not meet any of the definitions
of electronic surveillance contained in the FISA, it does so lawfully
under Executive Order 12333 without any resort to the FISA court.
In addition, even as it engages in its overseas mission, in the
course of targeting the communications of foreign persons overseas, NSA
will sometimes encounter information to, from or about U.S. persons.
Yet this fact does not, in itself, cause the FISA to apply to NSA's
overseas surveillance activities, and to my knowledge no serious
argument exists that it should. Instead, at all times, NSA applies
procedures approved by the U.S. Attorney General to all aspects of its
activities, seeking through these procedures to minimize the
acquisition, retention, and dissemination of information concerning
U.S. persons. These procedures have worked well for decades to ensure
the constitutional reasonableness of NSA's surveillance activities, and
eliminate from intelligence reports incidentally acquired information
concerning U.S. persons that does not constitute foreign intelligence.
Accomplishing this has not required a court order.
Because of the way the definition of ``electronic surveillance''
contained in the current statute is constructed, NSA must answer four
questions in order to determine whether a FISA order is required for it
to engage in electronic surveillance. These questions concern the
nationality of the target, the location of the target, the means by
which the target is communicating, and the location from which the
surveillance will be carried out. We believe that the truly significant
question on this list is the one that gets to the heart of the
applicability of the Constitution--the location of the target of
surveillance. The other questions reflect a common sense approach to
1978 technology that worked well then, but that today has unintended
effects. They are ancillary, if not irrelevant, to the more fundamental
issue.
Thus, in some cases, the location from which NSA seeks to acquire a
communication becomes a question clothed in undue significance. So,
too, the technology employed by the provider of the communications
service can in some cases be dispositive of whether the Government must
obtain a FISA order or not. We think this is far from what was intended
by the statute's supporters in 1978, and requires change.
Principally, the issue on which the need for a court order should
turn--but does not turn under the current FISA--is whether or not the
person whose communications are targeted is generally protected by the
guarantees of the Constitution. That question, in turn, is largely
determined by the location of the target. People inside the United
States who are the targets of electronic surveillance, regardless of
where the surveillance is conducted or what means are used to transmit
a communication, should be the only ones who receive the protection
afforded by court approval. At the same time, people outside the United
States who are not U.S. persons, again regardless of where the
surveillance is effected or the technology employed, should not receive
such protection. The FISA should be returned to what we believe was its
original purpose of regulating foreign surveillance targeting persons
in the United States, not the surveillance of non-U.S. persons overseas
who are not entitled to constitutional rights.
Moreover, the current FISA--at least in some places--already
recognizes this principle. As I have noted already, we think the most
significant factor in determining whether or not a court order is
required ought to be the location of the target of the surveillance,
and that other factors such as where the surveillance takes place and
the mode of communication surveilled should not play a role in this
determination. Significantly, this was recognized in the legislative
history of the current statute with respect to the first of the
definitions of electronic surveillance--the intentional targeting of
the communications of a U.S. person in the United States. We believe
the legislative history makes clear with respect to that definition
that when the communications of U.S. persons located in the United
States are targeted, the surveillance is within the scope of FISA
regardless of whether the communications are domestic or international
and regardless of where the surveillance is being carried out.\2\ The
same legislative history regarding that first definition of electronic
surveillance makes equally clear, however, that the statute does not
regulate the acquisition of communications of U.S. persons in the
United States when those persons are not the actual targets of the
surveillance.\3\
---------------------------------------------------------------------------
\2\ Id. at 50.
\3\ Id.
---------------------------------------------------------------------------
We think these principles, clearly and artfully captured in parts
of the legislation and in the legislative history, should extend to all
surveillance under the FISA. The need for a court order should not
depend on whether NSA's employees conducting the surveillance are
inside the United States or outside the United States, nor should it
depend on whether the communications meet the technical definition of
``wire communications'' or not. These factors were never directly
relevant in principle, but in the context of yesterday's
telecommunications infrastructure were used as a proxy for relevant
considerations. Today they are utterly irrelevant to the central
question at issue: who are the people deserving protection. Whether
surveillance should require court supervision ought to depend on
whether the target of such surveillance is located within the United
States.
In addition to changing the definition of electronic surveillance,
other changes are needed as well. For example, it is vitally important
that the Government retain a means to compel communications providers
to provide information to the Government, even in the absence of a
court order. It is also critical that companies assisting the
Intelligence Community in preventing future attacks on the United
States be insulated from liability for doing so.
Let me reiterate in closing that we believe the statute should be
updated to account for changes that have taken place in technology
since its initial passage. Furthermore, we think the appropriate way to
change the statute is to focus on constitutionally significant factors
that will ensure that the rights of U.S. citizens are protected, while
setting aside ancillary issues such as the technical means employed or
the location from which the surveillance was conducted.
Mr. Coble. Mr. Bradbury, you were an unfortunate
beneficiary of having gone first, but the gentleman from
California said you have an extra minute as well.
So you and Mr. Dempsey will be treated accordingly.
Mr. Alt.
TESTIMONY OF ROBERT D. ALT, FELLOW, LEGAL AND INTERNATIONAL
AFFAIRS, THE JOHN M. ASHBROOK CENTER FOR PUBLIC AFFAIRS,
ASHLAND UNIVERSITY
Mr. Alt. Thank you, Mr. Chairman and Members of the
Subcommittee.
As you begin to take up the potential legislation that's
been authored, there may be a temptation to wait for a judicial
determination of the NSA wiretap program. Let me implore you,
don't indulge that temptation. While the District Court
recently offered its opinion that the program is
unconstitutional, the court clearly erred with respect to the
question of standing and failed to properly apply Supreme Court
precedent which was directly on point.
It is extraordinarily likely that the District Court's
opinion will be reversed on appeal without the reviewing court
having to address any of the merits in the case. Given the
difficulty in establishing standing in this case in general and
against--in these sorts of challenges against FISA in
particular, the legal status of the NSA wiretap program is not
easily amenable or reducible to judicial determination.
Accordingly, it is necessary for the political branches to
regulate themselves, and therefore it is imperative for
Congress to take a fresh look at the FISA program.
Having determined that a legislative solution is necessary,
some of the proposed legislation this Committee is reviewing
today seeks to introduce FISA's requirements as the sole method
of conducting the NSA's surveillance program thereby
effectively terminating the program. While some seek to provide
the President with clear statutory authorization under FISA to
conduct the program itself, in deciding which course to take,
this Committee should be cognizant of two things: First, the
NSA wiretap program is needed, as a practical matter, to
address the emerging national security threats in a timely
fashion, and second, the program is consistent with the
constitutional requirements for the acquisition of foreign
intelligence surveillance.
Given the classified nature of the NSA program, the
witnesses testifying today from the DOJ and NSA will presumably
be better equipped to discuss the necessity for the Executive
Branch to maintain continued flexibility in how it performs
foreign intelligence surveillance. However, the need to
streamline and modernize the procedures required by FISA to
allow the Executive Branch to effectively combat the current
terrorist threat is readily apparent even without specific
knowledge of the program. Inevitably, while some changes were
made to the requirements for obtaining a FISA warrant after the
terrorist attack on 9/11, the process remains cumbersome and
subject to bureaucratic delay, a fact that the 9/11 Commission
noted in its fact-finding in which it specifically noted that
requests for such approvals are overwhelming the ability of the
system to process them and to conduct the surveillance.
Accordingly, the well-worn argument that FISA's procedural
barriers are light is belied by actual practice, and the
related claim that the Executive Branch need only submit all
requests for foreign surveillance to the FISA court turns out
to be unduly burdensome.
This leads naturally to the second point, a discussion of
constitutional considerations, because--notwithstanding the
desire of the Government to eliminate roadblocks of information
gathering--our constitutional system imposes burdens on such
practices in order to maintain a proper separation of the
powers and to safeguard civil liberties.
For example, in the context of criminal law enforcement,
the Fourth Amendment's general search requirement--subject, of
course, to exceptions--prior to the execution of a search is
one such barrier that will be placed on the Government.
However, the courts have consistently acknowledged that the
standard which the Government must meet in order to conduct
foreign intelligence surveillance and the President's authority
to conduct such surveillance are constitutionally distinct from
general criminal law enforcement.
A recent decision by the FISA Court of Appeals held that
the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence information
and suggested, further, that we take for granted that the
President does not--or has the authority and, assuming that is
so, FISA could not encroach on the President's constitutional
power.
This case is instructive concerning the scope of
Presidential power in the field of foreign intelligence
surveillance, and indeed the last sentence of this quote is
telling because it suggests that the Presidential authority is
sufficient in the context of foreign intelligence surveillance
even when the President's power is languishing at what Justice
Jackson famously referred to as ``its lowest ebb,'' that is,
when the President ``takes matters incompatible with the
expressed or implied will of Congress.''
Because reforming FISA is necessary to address emerging
threats to national security, and because instituting
procedures like those used in the NSA's wiretap program are
consistent with the constitutional requirements for foreign
intelligence surveillance, Congress should seek reforms to FISA
which provide the Executive Branch with the kind of flexibility
available to the Executive in the NSA program, while
maintaining adequate oversight to assure that the program is
administered within the limitations of foreign intelligence
surveillance.
In so doing, any legislation addressing FISA should seek to
meet the following objectives:
First, it should update the language of FISA to address the
changes in technology and modes of communication which the
former witnesses have already discussed.
Second, it should provide the President with the ability to
conduct foreign intelligence surveillance with fixed, renewable
periods of time without obtaining a FISA warrant.
And third, it should require renewals of the warrantless
surveillance program to be submitted directly to Congress,
preferably to the Intelligence Committees, in order to assure
that the warrantless surveillance is limited to foreign
intelligence surveillance while limiting the dissemination of
classified information about the program and reducing the
possibility of leaks.
The attacks carried out against the United States on 9/11
and our response to the new terrorists threats in the wake of
that tragic day have demonstrated weaknesses in our
intelligence gathering capabilities. Notable among these
weaknesses is the cumbersome process to obtain the FISA
warrants requisite to address intelligence opportunities
presented by an all too nimble enemy. By reforming FISA to
permit the necessary and constitutional use of warrantless
foreign intelligence surveillance renewable for fixed periods
of time, Congress can assure that the Executive Branch has the
tools it needs to address the 21st century threats while
providing the oversight necessary to assure that the program is
not abused.
Thank you, Mr. Chairman.
Mr. Coble. Thank you, Mr. Alt.
[The prepared statement of Mr. Alt follows:]
Prepared Statement of Robert D. Alt
Mr. Coble. Mr. Dempsey.
TESTIMONY OF JIM DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY
AND TECHNOLOGY
Mr. Dempsey. Mr. Chairman, Mr. Scott, Mrs. Harman, Members
of the Committee, good afternoon. Thank you for this
opportunity to testify at today's hearing.
I will focus most of my attention on the Wilson-
Sensenbrenner bill, because it is clearly the majority's
preferred bill in this Chamber and because I think it has been
the subject of inaccurate reporting, including in today's
Washington Post.
Simply put, the Wilson bill would permit the NSA's vacuum
cleaners to be turned on international and purely domestic
calls and e-mails of U.S. citizens. That is not modernization;
that is a major step backwards. If we are ever going to win
this war on terrorism, we need to focus our intelligence
agencies, not cut them loose from checks and balances.
The Wilson-Sensenbrenner bill would vastly expand the scope
of warrantless surveillance inside the United States, and we
would create a vast database of information on U.S. citizens,
which the Administration could datamine at will outside any
judicial or congressional oversight in a fashion reminiscent of
the Total Information Awareness program.
The Wilson-Sensenbrenner bill, in our view, is every bit as
dangerous as the Specter-Cheney bill. Both would authorize
broad, warrantless surveillance of U.S. citizens inside the
United States. Both would not only ratify the President's
program, but would authorize warrantless surveillance far
beyond what the President is doing. Both would make warrantless
surveillance the rule not the exception.
While the Wilson bill would nominally preserve FISA as the
exclusive means for conducting surveillance inside the United
States, it would exempt so much domestic gain from the act as
to effectively repeal FISA.
Now, in order to understand the impact of the Wilson bill,
it is necessary to appreciate that much of the weight of FISA
is carried by the definitions section, and for our purposes
today the most important definition is the definition of
``electronic surveillance.'' Under FISA, if the collection of
information fits within the definition of ``electronic
surveillance,'' it requires a court order or must fall under
one of FISA's exceptions.
If the collection of information is excluded from the
definition of ``electronic surveillance,'' then it is not
covered by the Act. It can be carried on without a warrant,
without reporting to Congress, without compliance with the
minimization requirement of the statute. And that is what the
Wilson bill does.
The Wilson bill takes the definition of ``electronic
surveillance,'' carves out large categories that the average
person would call wiretapping and places them outside judicial
and congressional oversight of the Act, outside the
minimization requirements, and outside other provisions of the
Act.
First, the bill would make the President's warrantless
surveillance program legal and exempt it from judicial scrutiny
by defining what the President is ordering as not to be
``electronic surveillance.'' Here I am referring to the
publicly admitted program of intercepting calls with one leg in
the United States and one leg overseas where the Government is
targeting suspected terrorists.
The bill says that targeting calls into and out of the
United States is not terrorism if you are targeting someone
overseas. The problem with that is--and the constitutional flaw
that I saw in that is--there are two parties to the call, and
one of them is in the United States and might be a citizen.
That person might be a journalist, it might be a relative, it
might be an aid worker, it might be some dupe, it might be any
number of kinds of innocent people, American citizens whose
conversations would be wiretapped without court order under
this bill.
Secondly, the bill would authorize a program of warrantless
surveillance far broader than what the President has been
conducting. The President has assured the American public that
his program is targeted against specific members of al-Qaeda
overseas calling into the United States.
The bill before you, the Wilson bill, would authorize
warrantless surveillance of all international calls, calls into
and out of the United States, by saying that if you are not
targeting someone, but if you are sweeping up everything, then
it is not electronic surveillance; therefore, it is outside the
coverage of the act.
So this means that under this bill, for the first time
ever, NSA would be able to train its vacuum cleaner on the
contents of all international calls, all e-mails that have a
recipient overseas, recording every single one so long as it
was not targeting a specific person in the United States. Then
they could go back to that database and target later and
extract whatever they wanted. That would not be considered
electronic surveillance under this bill.
Third, the bill would allow the vacuum cleaner of the NSA
to be turned on information concerning the purely domestic
calls of U.S. citizens. The bill would allow the NSA to scoop
up and would require the telephone and Internet companies to
turn over to the Government all records of all calls and e-mail
in the United States, purely domestic-to-domestic--not the
content of the calls--but to collect the information about
who's calling whom and to keep that information forever and to
analyze it and datamine it without any judicial approval.
Fourth, in its amendment to section 1802 of FISA, the bill
would go farther than the President has gone by allowing
warrantless surveillance of the content of domestic telephone
calls so long as it is, quote, ``solely directed at the
acquisition of the content of a foreign power or a person
suspected--a non-U.S. person suspected of being an agent of the
foreign power.''
Again, the problem is, many of those calls, domestic calls,
will have a U.S. citizen on one end of them. And so again we
will be intruding upon the privacy of U.S. citizens in the U.S.
making or receiving a domestic call, without court order.
And fifth, the Wilson bill would authorize surveillance of
purely domestic calls for a period of 45 days, renewed
indefinitely after a terrorist attack.
Mr. Coble. Are you about at the end of your line of your
extended time? If you could wrap up.
Mr. Dempsey. Yes. Mr. Chairman, I think we have before us a
complicated bill. It is hard to parse, and I heard Mr. Bradbury
say in his remarks that the Administration was planning yet
further suggestions on further changes to the bill, which says
to me this cannot possibly be marked up and dealt with in this
Congress. If--I think it's hard to understand this bill as it
is. The changes are sweeping, radical; and to have yet further
things in the works that will come in in conference or
something like that, or wrapped into some kind of omnibus, I
think is very dangerous in a time of war, when we have before
us a constitutional framework, and to start changing that so
radically I think is dangerous not only from a civil liberty
standpoint, but also from a national security standpoint.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey
Mr. Coble. We have been joined by the distinguished
gentlelady from California, Ms. Waters, and the distinguished
gentlelady from Texas, Ms. Sheila Jackson Lee. I did not
officially recognize the distinguished gentleman from
California, Mr. Lungren.
Gentlemen, we impose the 5-minute rule against us as well.
So if you could keep your questions short, we would appreciate
that.
Start my time, if you will, Beth.
The Foreign Intelligence Surveillance Court of Review in
2002 pointed out that, quote, ``All the other courts to have
decided the issue held that the President did have inherent
authority to conduct warrantless searches to obtain foreign
intelligence information,'' and further quoting, ``We take for
granted that the President does have that authority, and
assuming that is so, FISA could not encroach on the President's
constitutional power,'' close quote.
Was the Foreign Intelligence Surveillance Court of Review
correct when it said that FISA cannot encroach on the
President's constitutional authority?
Mr. Deitz, let me put that to you.
Mr. Deitz. I would defer to Mr. Bradbury, but I would
concur with that statement.
Mr. Coble. Mr. Bradbury, do you want to take the baton?
Mr. Bradbury. Yes, we do agree with that statement.
Statutes do not take away constitutional authority.
Mr. Coble. Both the Wilson bill and the Specter bill
attempt to streamline FISA.
Do you believe that is necessary that we further streamline
FISA, Mr. Alt; and why, if you do agree?
Mr. Alt. Once again, in some ways, I would defer on some of
the technological points to the DOJ and NSA representatives
here today, but I did note in the Wilson bill they did actually
clean up some of the language on some of the technological
components, and that, I would presume, is a step forward.
But streamlining the overall procedures in terms of getting
a warrant and permitting the President the flexibility to
obtain foreign intelligence surveillance without needing to go
through the onerous process of getting a warrant, particularly
after a time of war or attack on the U.S., I think is very
necessary.
I would also agree with the DOJ representative. My one
recommendation would be, I don't think that necessarily that
trigger should be based upon an attack on the United States. I
think that the President needs greater flexibility to be able
to anticipate attacks, anticipate potential attacks, and not
simply respond to those attacks once they have happened.
Mr. Coble. Mr. Bradbury, do you want the baton again to
extend on that?
Mr. Bradbury. Yes.
As stated in my testimony, Mr. Chairman, we certainly agree
that it is important to streamline the application process. We
don't need more lawyers in the process or more bureaucracy. We
need to streamline the process, make it more flexible, make it
more usable in the war on terror. And I think that is a very
important part of the legislation that Representative Wilson
has introduced and also that Senator Specter has introduced,
and it really is something that I know that the National
Security Agency has long been interested in.
Mr. Coble. Mr. Deitz, let me extend that a little bit.
Again, alluding to the Wilson and the Specter bills, both bills
change the definition of electronic surveillance. Do you agree
with that proposal and why?
Mr. Deitz. Yes, Mr. Chairman, we do. And, again, the reason
is that the 1978 FISA Act involved a certain set of
technologies, and those technologies have changed, and one of
the things that we would like, that NSA and analysts need, is a
technology neutral bill in which the FISA Act--amended FISA Act
gets to the point of Fourth Amendment protections, isn't tied
to a particular kind of technology. Yes, sir.
Mr. Coble. Now, Mr. Dempsey contends that the Wilson bill
and the Specter bill call for warrantless surveillance over
domestic--over both domestic and international calls. Do you
agree with that, Mr. Deitz?
Mr. Deitz. No. And I don't really understand--I don't
understand where that--how he is interpreting them that way.
What we have tried to do in working with Mr. Bradbury and
his folks and the CIA and so forth is to try to focus the bill
on--in the interest you are trying to protect. The only way you
can get a U.S. person in an unwarranted fashion is by an
intention to tap a foreigner, and if that foreigner happens to
be speaking to an American, then you do pick up that
conversation. However, that happens today and the procedures
are designed to what is called minimize those intercepts. So
there is nothing new about them. Minimization would continue to
apply under this legislation, under the Wilson and Specter
legislation.
Mr. Coble. Well, my red light is about to appear. Mr.
Dempsey, I will give you a chance subsequently if no one else
gives you a chance to elaborate on that.
The distinguished gentleman from Michigan, Mr. Conyers, is
recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman; and I thank all the
witnesses for being as helpful as they can. But let's just go
back to Mr. Deitz, who said he doesn't understand why Mr.
Dempsey would suggest that both under the Specter and Wilson
bills that warrantless wiretapping would be permitted in the
United States. Could you clear that up so that we can make sure
this record has got it straight?
Mr. Dempsey. Mr. Chairman, I was--the new definition of
electronic surveillance would say that for calls where one leg
is in the United States and one leg is overseas, that is calls
very likely involving a United States citizen, that a warrant
is not required, that it is not electronic surveillance if you
are targeting a person overseas. That is, you want to get--
initially, you are focusing on the target overseas, but you are
picking up the calls to the United States in the United States,
and you are, therefore, picking up, intercepting the calls of
U.S. citizens. Under the bill, that is defined as not being
electronic surveillance and does not require a court order. I
think that that should, because the rights of the American
citizen on the other end of that call are clearly at issue.
Mr. Conyers. I think that that to me is the very
uncontroversial understanding and implications of that
procedure.
But let me ask Mr. Bradbury this. Why can't we get FISA
orders under the current law? I mean, what is wrong with the
situation right now?
Mr. Bradbury. Congressman, are you referring to the
terrorist surveillance program----
Mr. Conyers. Yes.
Mr. Bradbury.--the President has authorized? In a word--two
words--speed and agility, the need for speed and agility. The
purpose of the program is to create an early warning detection
system when anyone associated with al-Qaeda--we have reason to
believe is a member or agent of al-Qaeda.
Mr. Conyers. What about 72 hours? That is not speedy
enough?
Mr. Bradbury. The 72 hours emergency authorization
provision still requires the Attorney General, before
surveillance can begin, to make a determination that all of the
requirements of FISA are met. So it requires a mini-FISA
approval process that goes up through layers of lawyers.
Mr. Conyers. But that isn't in the law. This self-imposed
bureaucracy of which you complain has not been put into the
law. And so what we have here is, after 25 changes in the FISA
law and many of them recommended by the Administration, you
still come to us saying that it is too long. Now, what about
extending the 72-hour emergency period to 5 days or to 7 days?
What do you think of that?
Mr. Bradbury. We think extending it to 7 days is a good
idea.
Mr. Conyers. Well, thank you very much. Because the Harman
bill, with Conyers attached on--as well, House Resolution
5371--does just three things that I hope doesn't raise any
quarrels with you.
It reiterates that foreign intelligence surveillance must
be conducted within FISA as written, including obtaining a
warrant whenever there is a possibility that a United States
person will be tapped; two, it allows the Administration to
make any internal procedural changes necessary to make applying
for a FISA order quicker and easy--easier; and, three, it
appropriates whatever funds are necessary to make sure the
Justice Department can seek as many court wiretapping orders as
they see fit.
Do you have any objections to any of those provisions?
Mr. Bradbury. Congressman, that legislation will not enable
the program to continue as it is currently operated if the
program were required to be maintained only under the
provisions of FISA as currently written, and we think simply
adding more lawyers and more bureaucracy is not--and more money
is not the answer for the need for speed and agility in this
program.
Mr. Conyers. So giving you more resources won't make it
speedier or work more effectively.
Let me turn to Mr. Dempsey to see if we can find out what
else the Harman-Conyers LISTEN Act might do to help facilitate
this. After all, we are going the extra mile. The only thing we
ask is that it is done within the FISA law; and you keep saying
that if we gave you all the lawyers we wanted, if we expedited
the procedure endlessly, it still wouldn't be so hot. We have
got to be able to go around the FISA law. What makes that so
important?
Mr. Coble. Well, Mr. Dempsey, if you could wrap up--the
gentleman's time is expired--you could wrap up, we have a lot
of questions remaining.
Mr. Dempsey. I would say at this time, Mr. Conyers, I have
always thought that the Attorney General authority for
emergency wiretaps could be downward delegated. It, in my view,
doesn't have to be personally exercised by the Attorney
General.
On my latest reading of the Wilson bill, I actually didn't
see that in the Wilson bill. Maybe I missed it. To me, that was
one of the changes that directly responded to what the
President has said was his problem, that it has to go all the
way up to the Attorney General personally and he personally has
to make the determination. I think that can be downward
delegated with some limitations.
The President has said it is still probable cause. The
President has said we are targeting individuals. At that point
there, you are meeting--you are targeting members of al-Qaeda.
At that point there, you meet the standards of FISA. You can go
to the court after the 72 hours or 5 days.
Mr. Conyers. Thank you so much. Thank you, Mr. Chairman.
Mr. Deitz. Mr. Chairman, could I just add a quick response
to Mr. Conyers' question?
Mr. Coble. Let me move along. I will get to you, Mr. Deitz,
before we go on.
In order of appearance, I recognize the distinguished
gentleman from Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Deitz, if you want to briefly respond, you can do it on
my time.
Mr. Deitz. Thank you very much. I appreciate that.
The problem with the 72-hour rule, as Mr. Bradbury said, A,
it is not a freebie. It is not you get to do whatever you want
for 72 hours. From the moment you want to put on an emergency
FISA, you need to have the wherewithal to create probable
cause.
My concern is not lawyer time, although that is precious
enough. My concern is analyst time, and the issue that most
concerns us is your counterterrorism experts and analysts do
not grow on trees. Every time I have got 5 or 10 or 15 or 20
counterterrorism experts working FISA factual issues, that is
time when they are not trying to stop the enemies of the United
States.
The second thing, if I may say so--and I appreciate your
indulgence--there is a notion that every time an American is
being intercepted, that is under FISA. That is simply not true,
and it is important that we not pretend it is true. Every day
we pick up lawfully conversations to, from or about U.S.
persons that are not under FISA warrant, and that nobody has
ever thought they ought to be under FISA. This is simply the
way the system was set up.
We are obligated to do what is a term of ours, is
minimization. That is, we take that information and put--take
it out of the intercept and put, bracket, U.S. person number
one, closed bracket, or U.S. person number two, and only in
unusual circumstances are those identities made known. So I am
just trying to eliminate this notion once a U.S. person is
involved all of a sudden there is a FISA warrant obligation.
There simply isn't.
Thank you, sir.
Mr. Chabot. Thank you.
Mr. Bradbury, let me turn to you, if I can. You had
mentioned in your opening statement the plot to blow 10 to 12
British airliners out of the air which was uncovered quite
recently. I think the whole world was focused on this and
rightly so, because an awful lot of lives, perhaps more than
were lost on September 11, were at risk, and this was, my
understanding, a very serious plot.
To the extent that we are able to discuss it in this
forum--and we obviously can't reveal secrets which might let
the terrorists understand how we acquire this type of
information--but could you just give us your opinion or perhaps
let us know--what we are talking about here today can sometime
become a good, esoteric--and may not be real relevant. But
could you tell us how what we are talking about here today
actually can affect something like that and how it may prevent
something like that from actually happening somewhere down the
road.
Mr. Bradbury. Well, Congressman, I can't talk about that
particular case, but I can say that, obviously, U.S.
intelligence experts, U.S. intelligence services cooperate with
the intelligence services of our allies around the world,
including the British, a key ally to the United States; and
this program is one program that enables our intelligence
experts to get some of the most valuable and current
intelligence information in real time. So to the extent it
contributes to our knowledge and to the extent our knowledge
can lend assistance to the intelligence efforts of our allies,
it is a critical part. It is a link in that chain.
Mr. Chabot. Okay, thank you.
Mr. Deitz, let me ask you, the idea that Mr. Dempsey was
talking about before, that, you know, sometime--he was saying
that sometimes both ends of this are domestic, when in fact it
is my understanding that we are talking about somebody here in
the United States and a terrorist-connected person in Pakistan
or Saudi Arabia or Afghanistan or somewhere else. And sometimes
you hear people that say, well, they are just using that excuse
that they are al-Qaeda connected. We really don't know that.
Could you touch on that and how in real life how that actually
is determined?
Mr. Deitz. I'd be glad to.
The first thing I'd say, Mr. Congressman, is we don't have
a vacuum cleaner at NSA and we haven't for years and years and
years. There is simply too many conversations, too many minutes
to vacuum. I think General Hayden testified at one point that
there are 2 billion minutes of long distance phone calls a
year. We simply don't have the resources to grab all that. So
the vacuum cleaner metaphor is simply not useful.
What we do--and this is all based on probable cause--I
assume we are speaking of the President's program, sir--always
based on probable cause. Do our analysts have probable cause to
believe that one end of a conversation is a member of al-Qaeda
or affiliate?
And those terms are robustly defined. That simply isn't a
decision of one person. There is a chain of command there.
There is a set of protocols that must be satisfied in order for
a shift supervisor to agree, yes, you have satisfied the
conditions to intercept this person. Once that intercept takes
place, the conversations--as I referred to earlier with the
time you gave me, those conversations are minimized so the U.S.
person part is removed if it does not have foreign intelligence
value.
Once all that happens, you know--and I don't want to bore
you--but there is oversight and compliance by the mission
people. There is oversight and compliance by the Office of
General Counsel, my office, and there is oversight and
compliance conducted by the Inspector General. So this is not--
this isn't simply Liberty Hall, sir.
Mr. Chabot. Thank you very much.
Mr. Coble. I thank the gentleman.
In order of appearance, the distinguished gentleman from
Massachusetts. I stand corrected. The Ranking Member from
Virginia--I overlooked him--Mr. Scott.
I will get to you soon, Mr. Delahunt.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Deitz, it has been mentioned several times that we
really don't know what you are doing at NSA. Can we get a clear
description of what is going on now before you would expect us
to consider any new law?
Mr. Deitz. Are you speaking about the President's
surveillance program?
Mr. Scott. All we know is what has been leaked to the
press. So we want to know before we change the law what is
going on under the present law.
Mr. Deitz. I am not in control of that decision. Certainly
we couldn't do this in public in public testimony.
Mr. Coble. Would the gentleman yield just a moment?
Thank you, Mr. Scott.
Mr. Deitz, I am just winging this now. I can appreciate the
sensitivity of some of this information--and I am thinking
aloud now. Mr. Scott, we may want to schedule a secret meeting
at some time. We can't do it today, but just chew on that for
the moment.
Now I recognize the gentleman from Virginia.
Mr. Scott. Reclaiming my time, there is no point in having
a secret meeting if they are not going to tell us any more than
they've told us already.
I yield.
Mr. Coble. Well, I will assume that more would be
forthcoming at a secret meeting, Mr. Deitz, am I correct?
Mr. Deitz. Mr. Chairman, what I can tell you is in a closed
session I could describe the shortcomings of FISA by chapter
and verse. What I cannot tell you--I cannot trump the
President's decision about who will or who will not be briefed
on the TSP.
Mr. Scott. I think that answers my question.
Mr. Dempsey.
Mr. Dempsey. I think we know enough on the public record.
The President has said, the Attorney General has testified,
General Hayden, who was one of the architects of the program,
testified in July before the Senate Judiciary Committee that
the President has authorized warrantless surveillance inside
the United States of calls that have one leg here and one leg
overseas where there is probable cause to believe that the
person overseas is a member or associate of al-Qaeda. That is
on the record. Now, normally, that would require a court order.
That is on the record.
Mr. Scott. Let me ask you while you are speaking, you
answered Mr. Conyers' question about the one leg overseas, one
leg over here. You also mention domestic and domestic would be
covered, too.
Mr. Dempsey. That is why I wish Mr. Chabot were here.
Because we are talking about two different things. We are
talking about the President's program, one leg here, one leg
overseas; and we are talking about the Wilson bill. The Wilson
bill authorizes the President's program and then goes farther,
much, much farther. One of the things it does, it says in its
amendment to section 1802 of FISA, for purely domestic calls a
warrant is not required if the Attorney General says we are
directing our activities solely at the communications of a
foreign power inside the United States, an embassy or a non-
U.S. person agent of a foreign power engaged in terrorist
activities inside the United States.
Again, the problem with that is these are purely domestic
calls where there is a high likelihood that the other person to
the call is a U.S. citizen. And certainly this has nothing to
do with--I mean, Mr. Deitz talks about what was the original
intent of Congress in 1978. There is enough water under the
bridge in both directions that there is limited value to
looking back to that. But this is one where Congress never
dreamed it was authorizing communications interception in the
United States without a court order where both parties were in
the United States and one of them is likely to be a citizen.
Mr. Scott. My time is almost up, and I wanted to ask Mr.
Deitz whether or not--when you make a decision to do a wiretap,
whether or not there is an individual assessment for each call
where you do categories--you said you are not doing a vacuum
cleaner?
Mr. Deitz. We are not doing a vacuum cleaner, correct.
Mr. Scott. Do you do an individual assessment before you
wiretap a conversation to ascertain whether or not the standard
has been met?
Mr. Deitz. We are speaking about the TSP.
Mr. Scott. I don't know what--we are playing 20 questions
now. I am not sure I am asking the question to get the right
answer. So just do the best you can.
Mr. Deitz. I will. The President's program, the program
that has been leaked to the press and then acknowledged by the
President, requires a probable cause determination that an
individual is a member of al-Qaeda or an affiliate. And, again,
those are precisely determined. So it is not a vacuum cleaner
pulling up everybody, for example, who lives in a certain city
or who professes a certain faith. It is not that. It is aimed
at an al-Qaeda affiliate or al-Qaeda----
Mr. Scott. That is the President's plan. Do we assume he is
not doing it, any wiretaps, without a warrant, without an
individual assessment?
Mr. Deitz. That is the program I am describing, yes, sir.
Mr. Scott. Is there another program? I mean, you are using
20 questions. We are trying to get around to, if I can ask the
right question, to target the right answer. Are you wiretapping
people without an individual assessment of probable cause that
they are a member of al-Qaeda or without a warrant?
Mr. Deitz. I can't answer that.
Mr. Scott. Well, if you can't answer that, then just say
you can't answer it.
Mr. Bradbury. Well, if I might just jump in, Congressman. I
think the President has made it clear that there is no other
program that involves domestic electronic surveillance of
domestic communications, and so the program that the President
has described is the only program along those lines.
And I need to point out one thing if I might, Mr. Chairman,
just very quickly just for the record. We have not publicly
acknowledged that the surveillance in this program would
constitute electronic surveillance under FISA as it exists
today. So we have been very careful not to do that. Our legal
analysis that we provided in the paper in January assumes that
that is the case for purposes of going through the legal
analysis, but we have not publicly acknowledged the method.
Mr. Dempsey. Correction. Everybody knows that it would be
electronic surveillance. But, anyhow, I accept the correction.
Mr. Coble. I thank the gentleman from Virginia, Mr. Deitz,
and then I will recognize the distinguished gentleman from
Arizona.
If I understood you correctly, in responding to Mr. Scott's
testimony you indicate even if we went into Secret session with
the Judiciary Subcommittee you still would be somewhat limited.
I assume that that limitation would not apply if you appeared
before the House and Senate Intelligence Committees and the
Democrat and Republican leadership.
Mr. Deitz. That is correct, Mr. Chairman.
Mr. Coble. So there would be no limitation there.
Mr. Deitz. Correct, your honor--or Mr. Chairman.
Mr. Coble. The gentleman from Arizona, Mr. Flake,
recognized for 5 minutes.
Mr. Flake. Thank you, Mr. Chairman.
And given just the short time, if you could keep your
answers--I have a number to get through.
Mr. Bradbury, if we were to pass the Wilson bill, would the
President stop the current program or do it all within the
Wilson language? What is your understanding?
Mr. Bradbury. Well, Congressman, I can't speak for the
President on a determination like that, so I can't say what the
President would do.
I would note--and I will try to be very brief. I would note
that there are difficulties with the current version of the
language. It talks about a 45-day period following an attack on
the country. It is not clear whether that would apply today, 5
years after 9/11. Whether that is the intent, that needs to be
clarified. And again we would say we shouldn't wait until the
Nation has been attacked to acknowledge whether the President
can do this kind of program.
Mr. Coble. I guess what I am asking is, what would prevent
the President from circumventing the Wilson language, given his
inherent powers that he claimed under Article II?
Mr. Bradbury. Well, the President is not interested in
circumventing statutes; and, as you know from our legal
analysis, we are not saying that the President has circumvented
any statute. We are saying the President has operated within
the authority provided in the authorization through the use of
military force which acknowledged and supplemented his
constitutional authority in this particular conflict, our armed
conflict with al-Qaeda. And, just focusing on that, the
President has acted to undertake surveillance of international
communications; and we view that as a supplemental authority to
the authority provided in FISA.
Mr. Flake. Mr. Deitz, you talked about minimization and the
importance of--for example, current law requires after 72
hours, I believe, that any information retained on individuals
who are not the target is dumped. Is that what you understand?
Mr. Deitz. Minimization applies to everything the same, not
just discovery on the order--I mean, taps on the orders.
Everything NSA does involves minimization.
Mr. Flake. And you are talking about that being important
about what you do.
Mr. Deitz. Yes, it is important.
Mr. Flake. Are you aware that the Wilson language actually
strikes those provisions which require that information
retained after 72 hours be disposed of?
Mr. Deitz. I am not aware of that.
Mr. Flake. Mr. Bradbury, do you have an answer to that?
Mr. Bradbury. I know that Representative Wilson's
legislation would extend the period to 5 days. We actually
think it should be 7. But I thought that it should retain
provisions that restricted the content of the information that
had been obtained if you don't subsequently obtain that order.
We actually think that is an area where further refinement is
important; and I would be happy to talk to you, Congressman,
separately about any particular aspect of the legislation.
Mr. Flake. Mr. Deitz, you talked about the problem with a
72-hour period is that it is tough to establish a probable
cause before a FISA court. Yet you said that every example of
NSA's surveillance under the current program involved an
analyst establishing probable cause. If you can establish it
within your agency, why can't you establish it before a judge?
Mr. Deitz. That is a very, very different proposition.
Analysts talk to each other. They do memoranda. They pass the
memoranda onto shift supervisors and so forth, but it is a
discrete number of people, all of whom, by the way, are
speaking the same language.
In order for us to go for an emergency FISA, the analysts
have to do their part. Then it has to go to our lawyers. Then
it has to go to a group of lawyers at the Department of
Justice; and then, ultimately, it has to go to the Attorney
General. In other words, we have to be prepared at the
beginning of that 72-hour period to present all this
information or ultimately to go to court with it, and that is
very different from doing this intramurally.
Mr. Flake. The frustration that we have had is we have had
these kind of hearings for, you know, ever since 9/11, and we
have not heard from the Justice Department or from NSA or
others what specifically--we always hear streamlining,
streamlining. Yet we never seem to hear what streamlining
means, and yet then we hear that the President can simply go
around it. So that is the difficulty that we are in here as a
Committee with oversight and with--I am troubled with the
Wilson bill, that it basically takes this Committee out of the
loop completely.
Mr. Deitz. Sir, FISA applications now are approximately \3/
4\ of an inch thick. That is paper producing. And if you are
doing it--as I have suggested in my testimony, if you are doing
it to prevent foreigner A or tried to protect the same sort of
rights of foreigner A communicating with foreigner B, I suggest
that that is simply a waste of that paper and effort and
analysts' time.
Mr. Dempsey. If I could just say, I have looked at far
fewer FISA applications than Mr. Deitz, but the ones that I
have looked at, most of everything after the first page or so
is boilerplate, and you read the first page and you know
whether it is probable cause or not. I don't know that they
need the boilerplate. I don't know in this day and age of
computers why production of boilerplate is such a difficulty
anyhow.
But I would say that, on your question of minimization,
FISA clearly says, information acquired from an electronic
surveillance must be handled pursuant to the minimization
requirements. And if you take the President's program and
define it as not being electronic surveillance, then it is not
subject to the minimization requirements under the act; and if
you take other things and define them as not being electronic
surveillance, then the minimization requirements by law don't
apply.
Mr. Deitz. That is simply not correct. We are obligated
under Executive Order 12333 before we do any--exercise any NSA
authority. Minimization procedures in place which we then use.
Mr. Coble. Gentleman's time has expired.
If you all will note that the Chair has been liberal today,
but I think this is an important issue, and we are not going to
run through it, but I hope the Members will keep in mind the
sensitivity of time.
Mr. Scott. Mr. Chairman.
Mr. Coble. Gentleman from Virginia.
Mr. Scott. I just wanted to make sure I heard what the
gentleman said. He is only limited by Executive Order, not by
statute, not by case law?
Mr. Deitz. What I am saying, sir, is we have an Executive
Order that obligates us to minimize.
Mr. Scott. That answered the question.
Mr. Coble. Finally, the distinguished gentleman from
Massachusetts, Mr. Delahunt.
Mr. Delahunt. Yeah. I was glad to hear that the Chairman's
become so liberal.
You know, I hear what you are saying, Mr. Deitz, and I
think you have to understand that there is a history in this
country--and I am sure you do, given your impeccable academic
credentials--we don't trust you. We trust you as an individual.
But I think what you are hearing here today is, you know,
an echo of American history regarding the relationship between
the branches. There is no oversight going on. You can establish
a protocol that has a variety of mechanisms to ensure that
statutes and Executive Orders are not being violated, but it is
intramural, as you say. This is not--you know, in democracy, it
is varsity ball. It is not intramural. And we are an
independent branch of Government. So I think that is the core
issue. Because what you are saying here is Democrats and
Republicans, conservatives and liberals, saying that is not
sufficient, that is not sufficient.
Now, in a previous career, I used to do a lot of court-
authorized wiretaps; and I read your testimony, and I hear what
you are saying and the precious time and the paper. With all
due respect, you know, there is close to 1,800 applications,
none of which have been denied, I think, in a single year. You
know, my colleague and friend from Arizona I think makes a very
good point.
By the way, the President--you are talking about the whole
issue of probable cause and refining that and it not being
necessarily an ingredient in this. I mean, the President in the
public statement, and I think you just said it, he has no issue
with probable cause when it comes to al-Qaeda. So I think we
can take that off the table.
But in terms of speed and agility, I have to tell you I
just can't buy and accept, based on my own experience, that
particular argument. I mean, I am sure that you've knocked some
agent or somebody from the Department of Justice has knocked on
the door of some FISA judge at 3 a.m. and, after a 15-minute
conversation, it is approved. I mean, that is the real world.
That is the real world. And if we need more analysts, then we
should have more analysts. That I suggest is a real problem.
Mr. Deitz. May I respond?
Mr. Delahunt. Of course. But I have a question for Mr.
Bradbury, so try to be concise.
Mr. Deitz. I will be very quick. There is clearly a
difference between criminal law and foreign intelligence
collection----
Mr. Delahunt. I understand that.
Mr. Deitz.--and in terms of where it rests within the
constitutional framework.
Mr. Delahunt. I understand that.
Mr. Deitz. And, by the way, if we are 2 days late serving a
search warrant on a criminal, we may have blown a case. If we
are 2 days late to getting a wiretap on a foreign intelligence
context, we may have a disaster.
Mr. Delahunt. I understand that. But that goes to the
question that was posed by Mr. Conyers. What do you need? There
is nobody here on this panel that won't give you the tools that
you need. Whether it is 7 days, 14 days, let's discuss them. We
are not going to hold hostage the American people. That is for
sure. Everybody here wants to destroy al-Qaeda and affiliates.
That is a given. Okay? But how do we do it without betraying
the Constitution? Because if we go down that road--we hear a
lot about Hitler and fascism these days. That is the
beginning----
Mr. Bradbury, you indicated that you were--you'd consider
amendments and suggestions and you want to work with Congress.
Is that a fair statement?
Mr. Bradbury. Absolutely, Congressman.
Mr. Delahunt. Can I ask you something? Have you drafted
legislation?
Mr. Bradbury. We have provided a lot of suggestions.
Mr. Delahunt. But that is not my question. Has the
Administration drafted legislation for consideration based upon
your understanding of what your needs are? Can you just give
me----
Mr. Bradbury. We have not drafted and submitted
legislation.
Mr. Delahunt. Then I think--you know, I have to tell you,
it is--when I hear that, I feel like I am being played with.
You have many, you know, I think legitimate concerns that can
be addressed; and I would challenge the Administration and the
White House and the President to come forward with a piece of
legislation that this Committee, sitting as the Committee of
jurisdiction, can review.
It is far too late. It is my understanding back on June 21
the Wexler resolution of inquiry was passed. We haven't heard
anything. And, you know, you talk--you are talking a good game,
but you are not delivering. That is the problem that I have.
Now, we can play this out. We all know it is 9 weeks to an
election, okay? And I am not so naive to think that politics
isn't, you know, involved here. I am not suggesting you or any
of the panelists--but if you want to do something real, then
come forward with a document that we can debate and argue.
You are here. Everybody is eloquent in terms of their
testimony. There are legitimate concerns. I think we can get it
done. It is incumbent on the Administration to see that we have
something before us that we can debate. It is the President
that isn't playing fair and square with this Congress.
I yield back.
Mr. Bradbury. Mr. Chairman, may I----
Mr. Coble. Very briefly.
Mr. Bradbury. The President does want to work together with
Congress on this issue. The President has indicated that we do
support Chairman Specter's legislation, wants to see it move
forward. He has also said that we see positive things in
Senator DeWine's legislation and also in Representative
Wilson's legislation.
We do want those to move forward. We don't want them to be
stymied. We would like to see something that resolves this
issue in a legislative way where the branches are working
together.
In that spirit, I would say that, as you know, I think both
Intelligence Committees of the House and the Senate are fully
briefed into the program and have been conducting very
intensive, very intensive oversight of the NSA program; and I
would dare say I think it is the most scrutinized,
legislatively scrutinized program perhaps in the history of the
NSA. So there is very extensive work being done, good work
being done by the Intelligence Committees of Congress.
Mr. Delahunt. Mr. Bradbury, I am not denying that. But what
I am saying, let's bring this forward in something that the
American people can review.
This Committee will be the primary Committee of
jurisdiction, or at least concurrently. I see Ms. Harman has
left. But, in any event, have the Administration come forward,
if you have concerns, and then we can take them up. We have
been delaying this for a period of time, the concerns that are
expressed by all of those that are what I would call parties of
interest. I think it is up to the Administration.
Mr. Coble. Gentleman's time has expired.
The distinguished gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you, Mr. Chairman.
I would just ask unanimous consent to have half the time
Mr. Delahunt had today.
Mr. Delahunt. Objection.
Mr. Lungren. Boy, that is a boatload from my friend from
Massachusetts. We have worked together on legislation because
of our concerns about the two branches of Government, but, boy,
bringing in Hitler and the bundestag and fascism and reference
to the Administration I think is a bit much here today.
I wish we had an easy answer to this. I hearken back to the
language of Justice White in his concurring opinion in the Katz
decision, which was one of the seminal opinions dealing with
privacy in the context of search and seizure; and, as he said,
wiretapping to protect the security of the Nation has been
authorized by successive Presidents. The present Administration
he is talking about at that time would apparently save national
security cases from restrictions against wiretapping. We should
not require, he said, the warrant procedure and the
magistrate's judgment if the President of the United States or
his chief legal officer, the Attorney General, has considered
the requirements of national security and authorized electronic
surveillance as reasonable.
And it just strikes me that in this program that we are
discussing the President has followed the suggestion of Justice
White and specifically had his hands-on review of this program
and the Attorney General--and maybe it is not so easy to say it
could be delegated downward, if you believe in what Justice
White has said.
Here's the conundrum I have. I happen to think the
Constitution under Article II does give the President certain
authority; and it has been historical, I would say to my friend
from Massachusetts, that successive Supreme Courts have
recognized that the President of the United States has unique
capability and authority in the area of gathering information,
dealing with the enemy. In fact, it has been extended beyond
wartime situations in terms of foreign intelligence of all
types.
Now, given that fact, I look at what can we do
legislatively. I think it is so easy for us to talk to the
American people and talk to the cameras and say, well, the
President's violating the law because he is not following FISA.
I wish it were that simple.
It was the Attorney General for the Carter Administration,
Griffin Bell, who, in testifying on behalf of the Carter
Administration in support of the FISA Act, specifically stated
that it was the position of the Carter Administration that the
FISA Act did not in any way nor could it encroach on the
President's constitutional authority under Article II.
Now we can say we don't like to follow the Constitution.
Maybe we think the Supreme Court doesn't follow the
Constitution at times, but I hope we would be consistent with
our oath to the Constitution.
So does that mean we can't do anything? No. I look and see
that the powers we have--I mean, the most extreme power is the
power of impeachment, but short of that is the power of the
purse. And that is where we can, in fact, stop the President
from doing some things; and it seems to me that is what
Congress can do in a situation like this. So the question is if
we construct legislation that gives Congress the information
such that it could make the judgment if it wanted to exercise
the power of the purse.
So that goes to the question of how do we want to be
informed? And we have set up in the Congress, in the House, a
program where issues of this nature, whether we like it or not,
being on the Judiciary Committee, are the prime responsibility
of the Intelligence Committee; and that is sort of where we
find ourselves here.
So, try as we might, it seems to me in some situations we
can construct legislation for the preferred process that the
President should follow, but I think we are straining in the
face of the Constitution to say we can do it such that we will
limit the President's otherwise existing constitutional power
here.
That is the difficulty that I am under. There are certain
things I'd like to do to restrict the Administration. If I look
at the Constitution I don't think I can do that, so my point is
how do we construct a methodology whereby the Administration--
not only this Administration but future Administrations are
most likely to follow that procedure, number one.
Number two, how do we avoid confusing, as Mr. Deitz has
said, the expectation of privacy concept that we find in the
Constitution? Do we extend it to everybody around the world? Do
we extend it to anybody and everybody because somehow we
believe that our sense of justice is an appropriate one for
American citizens and therefore should we extend that to those
who would do us harm in the war on terror?
I know my time is almost up. Let me ask Mr. Dempsey this.
Mr. Dempsey, first of all, do you believe that we are, in
fact, in a war? And, number two, if we are, does the President
have certain inherent powers under Article II in the gathering
of information? And, number three, if the program is as it
exists, that is the one we are talking about, that everybody's
talking about, the specific program to listen in on al-Qaeda,
if it is as it has been suggested even though it does include,
as Mr. Deitz said, conversation by someone here in the United
States because the other part of the conversation--is that
unconstitutional in your view?
Mr. Dempsey. Congressman, to some extent we are in a war. I
don't think that the war reference or the war concept covers
everything that is going on. There is, obviously, law
enforcement aspects as well.
I think the President does have powers to collect
intelligence in times of war against foreign adversaries, even
not in times of war. However, I do think those powers are
shared powers, like all of the President's war powers are
shared powers, and that constitutionally Congress has the
authority to pass laws regulating the exercise of the
President's powers.
In terms of constitutionality, I think that we have come
far enough in our understanding of the Fourth Amendment to say
that the best way to guarantee constitutionality of a search
inside the United States is to have a judicial warrant; and I
think it is unwise, I will simply say, to push that farther.
Now the bottom line, Congressman, I think you raise a good
point, and where it leads me to is, for now, you should do
nothing. That is, the current system--in my view, the current
situation of warrantless wiretaps, close congressional
oversight, warrantless wiretaps are narrowly focused, as the
President has said, where there is probable cause to believe
that a member of al-Qaeda or an associate is on the phone: That
is far better than the Wilson Bill.
The Wilson Bill goes far beyond that and would cut
congressional oversight, not increase it. Because the way the
oversight process works, oversight is required only for things
that are electronic surveillance. If it is not electronic
surveillance, then you are back to sort of the power of the
purse and the push and tug, which is where we are now.
So I would say, let the situation go on. It is not a pretty
picture, but it is certainly better than the Wilson bill.
Mr. Coble. The gentleman's time has expired; and, for the
record, I will say to the gentleman for California, you
received as much time as Mr. Delahunt did. So you all are even.
Mr. Lungren. I only got it once, though.
Mr. Coble. The distinguished gentlelady from California,
Ms. Waters.
Ms. Waters. Thank you very much.
Mr. Chairman and Members, I think the concerns that I have
basically been raised over and over again. One is this: I do
not understand how we could even consider any of the bills that
are being proposed to make changes as it relates to foreign
intelligence surveillance given what little information we have
from the Administration about the problems, what are the
problems with the way the law is constructed now. A lot of
work, a lot of time, a lot of attention have gone into
constructing a law that balances the need for information and
protection of the Fourth Amendment in the Constitution.
Let me ask Mr. Bradbury, were you involved in advising the
President in any way when he decided to undermine the
Constitution of the United States of America? Were you a part
of the team of people that talked with him about what he was
doing? Did he seek your advice?
Mr. Bradbury. Well, Congresswoman, I was not in the
Department of Justice when the program was initiated in 2001.
Ms. Waters. Who was? Who did you hear was there to advise
him? What do you know about this?
Mr. Bradbury. Well, I think the Department of Justice under
the Attorney General is--the Attorney General is the officer
under our laws that provides legal advice to the President, to
the Executive Branch.
Ms. Waters. You think the Attorney General--he sought the
advice of his Attorney General and he advised him that he
could, in fact, proceed with warrantless surveillance, is that
right?
Mr. Bradbury. Yes, Congresswoman. As the President has
described it, he sought legal advice, including from the
Department of Justice, at the time this program was initiated
and was advised that the program was lawful and consistent with
the Constitution.
Ms. Waters. And again you may have done this already, but
could you quickly describe to me how it is consistent with the
Constitution of the United States?
Mr. Bradbury. Absolutely. I will try to be very, very
brief.
Ms. Waters. Yes.
Mr. Bradbury. We have set it forth at length in a paper
that we have provided to Congress, made public. The President
has long been recognized to have authority under Article II of
the Constitution to take actions to protect the country,
including in the area of electronic surveillance. That is an
authority presidents have exercised in wars from the beginning
of the Republic, including, for example, in World War II and
World War I when Presidents Franklin Roosevelt and President
Wilson----
Ms. Waters. Does not the Foreign Intelligence Surveillance
Act of 1978 describe how he is to do that?
Mr. Bradbury. Well, we would actually--I actually believe
the Foreign Intelligence Surveillance Act does not fully
address the question of what happens in time of war. It has a
provision in there about declarations of war, which to me makes
it clear that Congress intended----
Ms. Waters. When did the Justice Department discover that
the Foreign Intelligence Surveillance Act of 1978 was
inadequate?
Mr. Bradbury. Well, I think what we are talking about is a
different paradigm from FISA surveillance. We are talking about
a wartime program to detect enemy communications. So we are
really talking about a different paradigm, and we think
authorization for the use of military force that Congress
passed in the days after 9/11----
Ms. Waters. All encompassing and it takes care of anything
the President would like to do?
Mr. Bradbury. No, Congresswoman. Absolutely not. But it
does focus with the particular conflict we are engaged in with
al-Qaeda and makes it clear that the President does have all
those traditional authorities necessary and appropriate----
Ms. Waters. I am sorry I had to interrupt you. We only have
so much time. Attempt to describe why the President of the
United States believes he can ignore the Constitution of the
United States and the Fourth Amendment.
But I am going to use my last few seconds to simply say
that this is another bungled action by the Administration in
the so-called war on terror. Unfortunately, Mr. Chairman and
Members, the President has failed to provide quality leadership
as he has executed the so-called war on terror, mistake after
mistake after mistake, and has got us to the point where we are
now--where our soldiers are caught in a civil war that this
Administration will not admit, caught between the Sunnis, the
Shiites and the Kurds, with people dying every day, civilians
and soldiers.
In addition to that, we are losing in Afghanistan. We are
threatening to go to war, I guess, with Iran and Syria.
I mean, we cannot take you seriously; and if, in fact, his
Attorney General and this Department of Justice is advising
him, then you and Rumsfeld and all the rest of you guys really
should have to go.
There is a lot of talk about calling for Mr. Rumsfeld's
resignation again and again and again, but the fact of the
matter is you should all hang your heads in shame for the way
that you have mismanaged this so-called war on terror. The
people of this country do not deserve to have the Constitution
undermined in the way that the President is doing it. And to
then have the audacity to tell us that the President has the
right to do it, despite what we are guaranteed by the
Constitution and the Fourth Amendment, somehow make this
fallacious argument----
Mr. Coble. The gentlelady's time has expired.
Ms. Waters. I have more to say, but I respect that my time
has come.
Mr. Coble. Mr. Delahunt, I have known for some time you are
a formidable legislator, but you have more muscle in your arm
than I realized. Because you expressed earlier concern about
the Department of Justice's response to our inquiry some weeks
ago. It was delivered today to Chairman Sensenbrenner and to
Congressman Conyers. So I commend you, sir.
Mr. Delahunt. I appreciate that commendation, Mr. Chairman;
and it does, I guess, demonstrate that there is muscle over
here.
Mr. Coble. Distinguished gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman; and I am hoping my 5
minutes will be stretched into 10 as some of our colleagues
across the aisle will be allowed.
Mr. Coble. I will continue to be liberal.
Mr. Gohmert. But, in any event, I'd have to address some of
the comments that were just made. Anybody who wants to blame
this President and Don Rumsfeld and his Attorney General for
the acts of terrorism that are occurring against our Nation has
to also blame Bill Clinton for 9/11. You've got no choice.
Because 9/11 we know unequivocally was planned and almost
completed, all preparation, during his presidency. So if you
are going to blame George Bush and Don Rumsfeld, it is time to
hang 9/11 on Bill Clinton.
The fact is Bill Clinton did nothing to deserve 9/11 being
plotted as it was during his presidency. If you look at his
commitment of troops, they were most often to protect Muslims.
If you look, he was the most friendly toward Palestinians of
any of the Presidents we have had. He did not deserve to have
9/11 plotted and planned during his presidency as it was, but
it was because since 1979 war has been going on. We just didn't
know we were at war. They knew that we were at war. They were
at war against us, as the attack in 1979, 1984, 1993, on
through the 1990's showed. So we are at war. It is just that,
after 9/11, we only now realize that we are.
The question is, what do we do from here? You can play the
blame game and say, well, this was Bush's fault or Rumsfeld's
fault and 9/11 obviously was Bill Clinton's fault. I don't
think any of those acts of blame apply.
So I had to get that out. But let me get to the panel and
thank you for your patience with our little bickering up here,
because we do have some very similar concerns in some areas.
Something I want to hit on is something that we have
discussed in areas of the PATRIOT Act, FISA, some of these
surveillance programs, data mining. I will go back to a concern
that was raised years ago when I read Chuck Colson's novel. It
was regarding an idiot that blew up an abortion clinic.
Somebody was killed, so the Attorney General basically declared
war on churches where pro-life was being preached. That gave
the Government a basis to go in, do surveillance, whatever they
wanted. Everything was okay because this was considered a
terrorist activity because churches were preaching pro-life and
somebody blew up an abortion clinic.
So I keep coming back to that scenario, and I told Attorney
General Gonzalez when he was testifying there at the table
where y'all are that, you know--of course, this was before the
breach of 219 years of precedent and respect for article 1,
sections 5 and 6, but I told him that I was not concerned about
him or this Administration, but I wasn't sure about future
Administrations. So we had to be concerned about the existence
of authority to do things that we did not anticipate.
I had concerns in the PATRIOT Act because it referenced
that certain things could be done by our intelligence people if
it was believed there was a foreign intelligence component or--
and it was a big or--clandestine intelligence activities.
Mr. Gohmert. And I thought I was throwing the Attorney
General a softball to ask has there been any surveillance of
any kind based solely on it being a clandestine intelligence
activity without any foreign component, because most of us
don't have any problem--we don't believe it violates the
Constitution to surveil foreign to foreign, foreign with any
type of terrorist links to domestic. We don't have problems
with that. But when you bring in an all-domestic component, I
start having concerns. And I thought I was throwing up a
softball, and then the Attorney General danced all around
without giving a straight answer.
So I want to come back and try to get a clear answer as to
whether anyone here knows of any warrantless surveillance that
is authorized in domestic-to-domestic calls through--whether it
is the NSA, the FBI, anything of that nature--through either
the PATRIOT Act, FISA, or the President's own acts and
determinations. Does anybody know of anything that authorized
domestic purely on the basis of being a clandestine
intelligence activity?
Mr. Bradbury. Congressman, I am not aware of any. And I
believe that the President did make it clear, as I indicated
earlier to Congressman Scott, that there isn't any domestic-to-
domestic communications being listened to without court order,
pursuant to the President's authority. And I would just point
out that the Keith case, the United States v. United States
District Court, the Supreme Court in the Keith case addressed
questions of domestic security surveillance as opposed to
foreign intelligence surveillance, whereas you point out there
is no foreign power component at all, and concluded in that
case the warrant was required. So I am not aware of anything
such as you described.
Mr. Deitz. I hope I can equally give an unambiguous no.
Mr. Gohmert. That is what I was looking for. I thought I
would get that from the Attorney General. But then shortly
after that, we found out there was data mining going on
domestic-to-domestic, and then that raised concerns that
perhaps if there is data mining going on, perhaps there is a
little further intrusion into actual communications. But you
are both saying that answer is no, correct?
Mr. Deitz. Correct.
Mr. Gohmert. And, Mr. Alt, earlier you looked like when my
colleague was asking questions that you were ready to give an
answer, and I want to make sure you have a chance if there was
something you wanted to interject earlier that you didn't get a
chance to.
Mr. Alt. I appreciate that. I have sort of a couple of
comments based on Congressman Lungren and what Congresswoman
Waters had to say.
I think that we need to be careful about sort of framing
this issue as if foreign intelligence surveillance magically
appeared 28 years ago, and as if FISA somehow is coterminous
with the requirements of the Constitution.
Mr. Gohmert. Don't use too big of words.
Mr. Alt. So in other words, FISA doesn't necessarily cover
the same things the Constitution does and to, you know, sort of
suggest that it does is to, you know, betray sort of a lack of
knowledge of the case law in this area. Quite frankly, you
know, without sort of sounding like I am talking to my
students, oftentimes when someone doesn't like something, they
scream it is unconstitutional. But in fact, quite frankly,
foreign intelligence surveillance has always been treated
differently by the courts than has title 3-style criminal
warrant procedures. Not only that, you know, while we may talk
about the fact that warrants are the general rule, they are not
the general rule without exceptions, special needs doctrine
cases.
And in particular, it is worth noting that there is a
special exception for Customs checkpoint which covers the mail.
When you receive something in the mail quite frankly in the
electronic age, international transactions which previously had
to be done through the mail or through Customs checkpoint now
take place by computers and via telephone transmissions and so
forth.
The rule about protecting the territorial integrity of the
United States, which was seen as being inherent in the Fourth
Amendment, sits beyond the special needs doctrine under the
Ramsey case, would seem to clearly apply in cases of foreign
intelligence surveillance. And so simply screaming that
something is unconstitutional without providing a single
citation adds nothing to the debate, and I would recommend that
as we are looking at this, we look at what the Constitution
actually requires.
Mr. Gohmert. If I could ask one quick question. In
Congresswoman Wilson's bill it mentions that after there is a
terrorist attack against the United States that there will be
certain powers, not to exceed 45 days, following a terrorist
attack. I am concerned that if we have another 9/11, that 45
days, just to have blanket ability to absorb whatever we can,
may not be enough. And I was curious about DOJ's and NSA's
position on 45 days. Are you familiar with the provision I am
talking about?
Mr. Bradbury. Yes, Congressman.
Mr. Gohmert. So without me reading the whole thing, if you
would comment, what do you think about 45 days? Is that enough
time after another 9/11?
Mr. Bradbury. I would say that in Representative Wilson's
bill it is a renewable period. So it would--could be
reauthorized. I think that is very important. We certainly
don't think it should be limited to after an attack has already
been successfully received by the United States. It should be
to protect us from an imminent or severe threat of attack. But
as to the sufficiency of 45 days, I would probably defer to the
intelligence experts.
Mr. Deitz. I agree with every comment he just made. The
renewability helps a great deal but our goal at NSA, their goal
is to protect this country from ever being attacked again.
Mr. Gohmert. And thank you.
Mr. Bradbury. Thanks.
Mr. Dempsey. May I comment? You know, ``to protect
against''--I have no doubt that there are people today planning
an attack on the United States. So under what Mr. Bradbury is
proposing, we would have perpetual prospective authorization to
the President to carry out wiretaps without a warrant.
Mr. Gohmert. Thank you.
Mr. Coble. The gentleman's time has expired. Ladies and
gentlemen, the 5-minute rule has been profoundly violated
today, and the Chair assumes all guilt. But as I said before,
it is an important issue and I think that justifies the
violation. I appreciate you all bearing with us.
Before I recognize the gentlelady from Texas, I want to say
in response to what my friend from Texas said, let the record
show that I have been vocally critical of my Bush
Administration. I have been vocally critical of the previous
Clinton Administration. So I just want to reiterate what you
said, Mr. Gohmert: There is plenty of blame to be placed inside
that target. Both parties.
The distinguished gentlelady from Texas, Ms. Sheila Jackson
Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I was
hoping you would not qualify your liberality preceding the
opportunity to inquire and thank you very much, as well the
Ranking Member, for recognizing the importance of these--of
this hearing. I would like to offer into the record a letter
that I wrote on May 12, 2006, asking for such hearing by the
Full Committee, and I thank this Subcommittee for holding them,
and I think it would be important for the hearing by the Full
Committee as well.
Mr. Coble. Without objection it will be received.
[The information referred to follows in the Appendix]
Ms. Jackson Lee. I would offer to say that I believe that
we are in fact the defenders and protectors of the
Constitution. I would also suggest, Professor Alt, that you are
speaking to lawyers who have taken Constitution 101, but
frankly I practiced law and I would beg to differ. I think
there are nuances. There are exceptions. But we are
representing the people of the United States, and with that in
mind, we have a responsibility to interpret the Constitution as
the Founding Fathers obviously laid out the framework, which is
a Nation adhering to the Bill of Rights, but also we have the
responsibility of responding to the political will of the
people. And I would venture to say to you that even your
students would be outraged or have been outraged by some of the
violations of the basic tenets of the Fourth Amendment.
Let me read into the record I think the beginnings of a
very thoughtful opinion by Judge Anna Diggs Taylor. I know
there is a rush to judgment to the Court of Appeals to malign
her, but frankly her portfolio is one to be compared to any of
you gentlemen who are sitting there.
And the opening remarks as she began to assess the NSA
spying, if you will: This is a challenge to the legality of a
secret program hereinafter called TSP, undisputedly inaugurated
by the NSA agency, at least by 2002, and continues today, which
intercepts without benefit of a warrant or other judicial
approval prior or subsequent, the international telephone and
Internet communications of numerous persons and organizations
within this country.
So there is a domestic element to this. The TSP has been
acknowledged by this Administration to have been authorized by
the President's secret order during 2002 and reauthorized at
least 30 times since.
I disagree with the idea that, Mr. Chairman, if we had an
opportunity for a secret meeting, I disagree that we should be
limited because we are either not leadership or the
Intelligence Committee. I truly believe that this Committee
deserves to understand what you are doing. We deserve so
because we represent the people of the United States. And I am
offended by the fact that there is a limitation of who can
understand, if it is a classified presentation, what the
President is doing.
And let me try to set the facts why I think there is such a
great deal of consternation. One, there is no divide in any
Committee on the war on terror. But let us be very clear: There
is no war that this country is now engaged in under the
Constitution of article 3, section 8. That is what many of us
quarrel with. There has been no declaration of war. We accept
the metaphoric terminology that we are in a war on terror but
there is no declaration under the Constitution. Until I am told
otherwise, the Constitution is still the governing document
interpreted by Federal courts and others, but it is still the
governing document.
So let me be very clear that we do have a right of
oversight, and here are my concerns. I think it is important
because I think we have been motivated to have this hearing in
light of the recent, if you will, successful discovery of the
plot that would have generated the loss of thousands of lives.
We celebrate that. But let us be very clear that in the course
of that investigation, that discovery, that find, that criminal
investigation, there is no evidence that the NSA work, the NSA
approach, the NSA spying, the NSA data collecting had anything
to do with--and let me read the words of Secretary Chertoff:
Currently we do not have evidence that there was as part of
this plot any plan to initiate activity inside the United
States or that the plotting was done in the United States. So,
first of all, the NSA domestic wiretapping certainly cannot
have played a significant role in unraveling the plot.
And then at the same time, let it be known that the U.K, as
I understand it, still has warrants that they utilize, that
they did not waive in their investigation for national
intelligence, and it is done by the Secretary of State for the
United Kingdom. And therefore they too followed a certain
procedure in discovering the plot.
The 9/11 Commission made it clear that we could have
discovered the tragedy that occurred, the horrific tragedy,
hindsight, if we had simply connected the dots, and that was
made very clear. We had all of the intelligence. In fact, my
understanding is there was a memorandum submitted to this
Administration that was on their desk prior to 9/11. So you can
investigate that. There was a memo discussing some of these
very issues. So it is all about the intelligence and the dot
collecting.
Mr. Dempsey, let me raise these questions with you, then.
You had indicated a sentence, that I think needs to be
edified in your opening paragraph, that the Administration,
caught in secret violation of FISA, is now seeking radical
changes in the law. And when we make those kinds of comments,
clearly we need to have an explanation. And I would like to
raise these questions so the panelists can answer.
The Wilson bill says that you can allow wiretapping without
a warrant. First of all, we are doing it now with no
limitation. The Wilson bill says 90 days after an attack on the
U.S., and of course I am concerned about what is an attack on
the U.S. It is very vague at this point. But the 90 days
without a warrant is really an affirmation of what is going on
now. It only has a limit, and then why would the people of the
United States want to take the Representatives of the United
States out of the oversight as you mentioned?
So would you answer the radical aspect of your--what is it
that you perceive to be radical? I think it is important if you
can speak to the concerns of the American people. Mr. Deitz,
since you are the general counsel and because you offered the
words that we typically say as lawyers, ``Your Honor,'' I know
you are obviously a very competent counsel, you are always in
court. But tell me why this Committee could not be briefed to
understand what the President is doing in a classified briefing
and why you could not function, as Judge Diggs Taylor has said,
with at least approval by the courts, even after the fact, when
we know that 99 percent of the FISA requests have been
approved.
Mr. Dempsey.
Mr. Dempsey. Congresswoman, the Wilson bill has two
different provisions on attack, one which would allow
warrantless surveillance by the President for 60 days following
an armed attack against a territory of the United States, and
the other of which would allow warrantless surveillance by the
President for 45 days following a terrorist attack against the
United States. The 45 days could be renewed an unlimited number
of times.
Now the current rule is 15 days in case of declaration of
war.
Now, actually I don't think that is the most radical
portion of this bill. I think that perhaps the declaration of
war concept a little bit has fallen out of use, clearly, both
internationally and in terms of the way the United States uses
its Armed Forces.
Ms. Jackson Lee. That is unfortunate. We have, I think,
violated the Constitution. And by the way, it is Article I,
Section 8. I may have misspoke before.
Mr. Dempsey. Up or down, I won't go into that. I think
there could be some modification to the time of war provision
of FISA without being radical. But what I think is radical are
the ways in which various things, war or no war, attack or no
attack, various things are being defined as not being
electronic surveillance at all for allowing the Government to
collect information on U.S. citizens and going far beyond, far
beyond what this President has said he is doing.
Now we can talk a lot about what is----
Ms. Jackson Lee. Give us an example, because I want to
yield to Mr. Deitz.
Mr. Dempsey. First of all, it would allow the--as I read
it--the scooping up on an untargeted basis. I used the word
``vacuum cleaner.'' Mr. Deitz doesn't appreciate the use of the
word vacuum cleaner, so I will simply say scooping up without
targeting, without particularity, scooping up large numbers of
foreign-to-domestic calls.
Ms. Jackson Lee. Such as a telephone data, if you will,
broad sweep.
Mr. Dempsey. Yes. That is the way I read it for
international communications, both wire and wireless into and
out of the United States, including Internet. Secondly, it
would allow the--I say vacuum cleaning--but large-scale
collection of the transactional information related to
communications. And as I read it, it would be for the purely
domestic acquisition, purely domestic calls, monitoring who is
calling whom. This is the other sort of program that has
received much less attention and which has not been formally
acknowledged by the Administration. But the monitoring
basically of who is calling whom. Information that is not
constitutionally protected under Supreme Court decisions dating
back to the seventies, but which is clearly important, clearly
significant both to the Government and to citizens. That
information could be collected wholesale or in large
quantities.
Ms. Jackson Lee. And may have no value. Let me----
Mr. Dempsey. Does have some.
Ms. Jackson Lee. It may or may not. You are talking about
wholesale vacuum cleaning. It may or may not have any wholesale
value. That is where I have some questions.
Mr. Deitz, let me have you answer the question why we could
not have a classified briefing in detail after the fact, on the
appropriateness of what the President is doing. And then,
secondarily, this broad reach that is obviously what has been
occurring already, we find that Justice Diggs Taylor said you
don't even have approval after the fact. Which I can't imagine
how that would injure any of what we were attempting to do in
the safety securing of this Nation. It is just a broad reach
with no protections whatsoever.
And I don't think the--as I said, the idea was to fall
victim to 9/11, if you will, by turning on ourselves and
denying the protections of what I think is a valuable document,
and that is the Constitution.
Mr. Deitz. Congresswoman Jackson Lee, I will try to answer
both of your questions as economically as I can. I am not the
person who decides who on the Hill gets briefings and who does
not.
Ms. Jackson Lee. But you can carry the message back.
Mr. Deitz. I certainly can do that. I know that
traditionally the HPSCI and SSCI Committees have been the ones
to oversee the programs at NSA and other intelligence
committees and other intelligence agencies, and certainly there
is always a concern, without being specific about anybody here,
there is always a concern that the more people who are aware of
programs, the likely--the more likely it is to have leaks. And
so that is always an issue but, again, I did not make that
decision.
In terms of why not--the notion underlying the authority of
the President, the TSP, is that it is outside FISA; that under
the President's Article II authority he doesn't need FISA
approval to conduct certain kinds of foreign intelligence. And
what underlies that concern, I believe, was the need for speed
and agility in acquiring terrorist information that jeopardizes
this country.
Ms. Jackson Lee. Then what prevents you from getting
approval after the fact? I don't mind updating and we already
updated FISA under the PATRIOT Act, but what is wrong with the
post-approval for some actions that you say are necessary by
the President.
Mr. Coble. Will the gentlelady yield to me?
Ms. Jackson Lee. I will be happy to yield.
Mr. Coble. Mr. Deitz, if you could wrap it up.
Ms. Jackson Lee. Thank you for your indulgence.
Mr. Deitz. There are two answers to your inquiry. The first
is I don't believe FISA contemplates such a conference to get
that. But it is worth noting. And I stress this: that very soon
after the President's program began, General Hayden briefed all
of the very senior people on the Hill and the HPSCI and SSCI
folks and the presiding judge of the FISA court, and when that
presiding judge retired and a new presiding judge came in,
briefed that presiding judge. So there was an attempt to, if
you will, do a Justice Jackson under the Steel Seizure Case to
try to make sure that people on the Hill and the other two
branches of Government were apprised of this program.
Ms. Jackson Lee. I will end on this note. Maybe we should
look at the post-approval, because I know I am not sure if he
was speaking about the judge who resigned out of frustration
because the Administration couldn't find their way to adhere to
the law, and I would also say with all due respect I don't
think any of us can accept a badge of honor in who leaks the
most. Because certainly I think the Administration has their
share of major leaks, and certainly I don't think that is
sufficient excuse. We have people dying. We have people on
front lines in various wars based upon faulty intelligence, and
I think the American people are due at least the accuracy of
what we are doing, but they also deserve the protection of the
Constitution which is a living document. And I would hope we
would be able to have legislation that is not as broad as
Congresswoman Wilson's.
I think there are other legislative initiatives, Harman-
Conyers, that really makes some sense. And I think the
Administration is not going anywhere unless they do this in a
bipartisan manner.
Mr. Coble. Folks, it is going to soon be supper time
because--I think because of the importance of this issue we
will have a second round, and I would urge the Members, if we
can, to try to comply with the 5-minute rule if we can best do
it.
Ms. Jackson Lee. Thanks, Mr. Chairman.
Mr. Coble. You bet.
Mr. Alt, this may have been broached before, but in your
testimony you state that any legislation addressing FISA should
provide the President with the ability to conduct foreign
intelligence surveillance for fixed renewable periods of time
without obtaining a FISA warrant.
Elaborate on that, and as you elaborate on it, do you think
these bills comprise to providing such flexibility?
Mr. Alt. Essentially what I was looking for on that was
making sure the President was able to continue the program that
he has in place, that he has a flexibility, because quite
frankly, it is shown to be necessary in dealing with al-Qaeda.
I think that Wilson's bill is reasonably good on this. As I
suggested, for instance, with regard to the attacks on the
U.S., I personally think that the trigger needs to be a bit
lighter and give a bit more discretion to the Administration,
which is to say I don't think, quite frankly, the American
people want to have to wait until there is an attack on the
U.S. in order to implement provisions, the sorts of terrorist
surveillance provisions that are constitutionally permissible
today.
One of the things I think that we need to look at,
oftentimes I think people sort of throw up the constitutional
barrier as one to attempt to put in additional restrictions and
legislation, and quite frankly what we are dealing with here
today is largely a question of policy. You know, to what extent
does Congress wish to attempt to apply additional restrictions
above and beyond what the Constitution requires upon the
President's ability to carry out these sort of surveillance
programs. In that context, quite frankly, I think most people
would want greater ability to do this, with some oversight to
make sure that it actually is targeted at foreign surveillance
rather than targeted at potentially purposely domestic
surveillance, the sort of things that were involved in the
Keith case.
Mr. Coble. The distinguished gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. I want to make a couple
of comments. When you are talking about this burden, some
wiretap procedure, the procedures are ex parte. That is, only
one side is there. They are uncontested because there is nobody
there to contest it. So it cannot, although procedurally you
have to do it, it is not--it is not a contested situation.
As I understand,the present situation, they are only doing
people who are known al-Qaeda members, which is different from
what the--some of these bills will allow. Al-Qaeda, you are
talking terrorism. Foreign intelligence is not limited to
terrorism, and that is one of the problems with some of these
bills. You open it up to anything under the foreign
intelligence. That could be a trade deal or anything else.
Doesn't have anything to do with crimes or terrorism. So at
least what has been leaked out so far, we are better off, as
Mr. Dempsey has said, just leaving it be legal or illegal
because it is better than owning up to anything and everything.
One of the areas that I would like to get into is the
standard you need before a wiretap. We said you don't want to
wait until an attack. Well, what do you need to do a wiretap?
What standards? Probable cause? Reason to believe what? And
before we get into that and who gets the check and balance, is
the President satisfied you need it, that is it; or should you
have a warrant?
And before we get into that, Mr. Chairman, I would like to
yield such time as he may consume to the gentleman from
California, a Member of the Committee, Mr. Schiff.
Mr. Coble. Without objection. Mr. Schiff.
Mr. Schiff. Mr. Chairman, I want to thank you and Mr. Scott
for yielding me time today. I want to begin by referring to the
comments of the testimony of Mr. Deitz that the technology
should not be central. It shouldn't be the technology that
matters. It should be the targets that really matter. I agree
with that.
You also testified that where you are dealing with
foreigner A talking to foreigner B on foreign soil, this
shouldn't be the subject of FISA. And I agree with that, too.
The problem is this: We are being asked to make sweeping
changes to the Foreign Intelligence Surveillance Act
essentially in a vacuum. None of us in this Committee
understands why foreigner A is talking to foreigner B on
foreign soil that invokes FISA. I assume there are
technological reasons that may be true, but none of us here
understand how in your view technology is central, when
technology shouldn't be because we haven't been briefed on the
program.
We might as well have the lights out in this Committee room
because as a practical matter, we are all sitting here in the
dark. And you may say, Mr. Deitz, it is traditional to brief
the Intelligence Committee and not to brief this Committee in a
classified hearing. That is fine. But don't come to this
Committee and ask us to make sweeping changes to our laws and
ask us to fulfill our obligation of protecting the Constitution
and do it in the dark. That is, I think, the discomfort you are
hearing from some of the Members of this Committee.
We will do whatever is necessary to protect the country,
but we won't buy a pig in a poke, particularly when we can't be
sure that it will actually even improve the security of the
country. We can't tell if the changes that you are proposing at
this point are necessary. And we are not moved, I think many of
us, by the argument that administrative burden--that you have
got analysts who have to talk to lawyers in this department and
that department should overcome concerns about the
Constitution.
I have never seen a situation where the concern over
administrative load somehow superceded devotion to the
Constitution. That is not a very powerful argument for us to
change the law.
So I would encourage the Subcommittee Chairman to stick to
your guns and request a classified hearing for the Members of
the Full Committee. There is nothing that precludes you, by law
or anything else, from fully briefing this Committee. We are
under the same classified admonitions, the same criminal
penalties as the Intelligence Committee Members, and if you are
going to ask this Committee to make these changes, I think you
have to give us information where we can satisfy ourselves that
we are doing our constitutional duty.
I would like to finish my comment and invite you to
respond.
Mr. Bradbury.
Mr. Coble. Mr. Schiff, keep in mind you are not a Member of
the Subcommittee so don't push us too far, but go ahead.
Mr. Schiff. I am merely asking that Mr. Scott be given the
same liberal timing as in the first round.
I really, with respect to Mr. Bradbury, don't think your
comments shed much light here. You continue to rely on the
authorization to use military force, as if the Hamdan decision
has never been issued. And what concerns me about that is the
Hamdan decision had a phrase, I think a passage that was
completely pertinent to the NSA program, and said that nothing
Congress did in the AUMF gives any hint that we are intended to
change the law about tribunals, and the same can be said about
the NSA program. And if we continue to rely on that kind of
constitutional reasoning, we are going to be back here with the
Court striking down what we pass out of here in the Wilson
bill. And the question is not whether FISA or Congress can
encroach on the Commander in Chief's inherent Constitutional
authority. Of course we can't. No one is suggesting we can.
That is a--that is a constitutional problem. The question is
whether FISA is encroaching. I don't believe it is. And to say
that we can't encroach is really to add very little to the
debate.
I have three questions that I would like to pose.
Why is it, Mr. Deitz, that when Foreigner A talks to
Foreigner B on foreign soil this is covered by FISA, because I
don't understand that.
Number two, why can't the administrative burdens you
alluded to be overcome either with greater resources or minor
changes that accommodate the--the internal department approval,
which seems to be a bigger problem than the 72 hours after the
fact. Why can't that administrative burden be overcome with
resources?
And, third, why are you coming to us now? Why during the
PATRIOT reauthorization where we made changes to FISA did the
Administration tell the Senate we didn't need to change FISA
because it was working just fine as it was? Why now?
Mr. Bradbury, you say this is the most criticized program
in NSA history. That may be true. But the only reason that may
be true is because the New York Times leaked it, or this
Committee would know nothing about this still. So you get
little credit for the oversight we are doing about this
program, because it wasn't invited by the Administration by any
means.
Those are the three questions that I have.
Mr. Deitz. I will try to be as brief as I possibly think I
can. I think twice before, I have referred to the fact that I
would be delighted to explain the technology problems that we
now face and that the proposed legislation of Senator Specter
and the proposed legislation of Congressman Wilson would help
to alleviate, and it has to do--I do not as general counsel of
NSA, I do not want to be in the position of helping or laying
out a legal memo for terrorists to follow while negotiating
U.S. law. So that is why I am not longing to do it publicly,
but I am willing to do that privately in appropriate
circumstances. And, again, I have offered that twice.
I don't expect you all to buy a pig in a poke. I wouldn't
either.
Mr. Schiff. Does that mean, Mr. Deitz, this argument of why
when Foreigner A talks to Foreigner B on foreign soil it is
covered by FISA, and that you will do that in a classified
session?
Mr. Deitz. The question of burdensome, the burdensome
nature. This is not something that can be addressed through
providing more resources. It has to do with the speed of
watching what terrorists are doing on the communications
networks. Some is not like in a normal judicial context where
you can have a temporary restraining order or some way of
holding everything stable while you move the judicial process.
This is equivalent to stopping in the middle of a battlefield.
Mr. Schiff. Mr. Deitz, if I can interject here. If the
problem is the pre-approval, not the 72 hours, then why not
have a good-faith exception or good-faith safe harbor that
where you have to act safely, and in the 72 hours after the
fact the judge says well, you know, actually we don't think you
had probable cause, where you can show you acted in good faith.
You have a safe harbor. Why wouldn't, you know, something along
those lines be adequate instead of, you know, the problem that
Mr. Dempsey alluded to, there are people planning attacks on
this country.
In the Cold War days, you are saying things have changed
since the Cold War days. In the Cold War days we risked being
annihilated by nuclear weapons from the Soviet Union. You could
argue then as now that we can't wait until we are annihilated
to do surveillance without a warrant.
Mr. Deitz. That is a very different context, Congressman,
and made it in some respects very much easier, because there we
were attempting to obtain communications on dedicated lines.
Today terrorists are using the same telephone lines and same
Internet connections that all the rest of us are now using. So
you simply can't go let us tap into the Minsk-Moscow line and
obtain the intelligence we need. We are all on the same big
giant network. And terrorists understand how those networks
work, and we also know they understand how U.S. law works.
Mr. Schiff. They must understand it better than we do on
the Committee.
Mr. Deitz. When you last mentioned the most scrutinized
program, this wasn't after the fact. When we began the
Presidential TSP program, we knew that we had to do this
program absolutely correctly and so from the moment that
program began, I as the chief counsel at NSA, helped create a
rigorous oversight program that eventually we were able to get
the Inspector General involved in.
Mr. Schiff. So when Mr. Bradbury had said this is the most
scrutinized program, I assume what you mean was scrutinized by
Congress, not scrutinized within the NSA.
Mr. Deitz. I thought he was referring to both.
Mr. Coble. Mr. Schiff, I realize that Mr. Scott controls
the time, but Mr. Bradbury has to leave at 4. So if you can
wrap it up.
Mr. Schiff. I would be happy to. If I can make one last
point and wrap up and yield to the Committee for whatever
additional comments they wish to make.
When the PATRIOT bill came up, which I supported, the
argument was made and I think it was a fair one, that
technology had changed, that our laws had not changed; that we
had a system where, you know, you used to go up on the
stationary phone with a warrant and now people are using phones
disposably and calling cards, et cetera. You were able to share
enough about that with us to give us a comfort level that these
changes are necessary.
Right now you are not able to share anything with us about
why these changes weren't sought in the PATRIOT bill, why they
weren't sought in the PATRIOT reauthorization, why they are
somehow necessary now. So we don't have any of that
information. And it is essentially an argument that you ought
to trust us or you ought to trust people in the Intelligence
Committee, because we don't trust you on the Judiciary
Committee to keep what we tell you in a classified hearing
classified. That is troubling to me. And I would again urge
that this Committee demand the information that we need to make
intelligence decisions. And I yield to the Committee or the
witnesses on any time I have remaining.
Mr. Dempsey. If I may, very briefly.
Mr. Coble. Very briefly. I am wanting to wrap this thing up
now.
Mr. Dempsey. Congressman Schiff, I think that on foreign to
foreign, there has been a windfall to the intelligence
agencies, which is good, which is that a large number of
foreign-to-foreign communications pass through the United
States. This is one of the changes in technology that they
don't talk about quite so much because it benefits them. They
talk about the changes to technology that make things harder
for them, but this is one that makes it easier for them. A lot
of foreign-to-foreign communications pass through the United
States. There is a concern, apparently, that because FISA is
territorial that somehow it applies. I read the text. I don't
see it. But whatever the reason is--and that reason maybe can
be given in a classified briefing--I think fixing that is a
much narrower solution than what we see in the Wilson bill or
some of the other legislation.
Another technology change that has occurred is that while a
lot of international communications used to come by satellite,
they now come by fiber. And FISA draws a distinction between
radio and wire; requires a warrant for wire, doesn't require a
warrant for a lot of radio stuff. Now, fine. Let's be
technology neutral.
But another technological change that has occurred, and a
sort of cultural or corporate change, is I think the
corporations are much more willing to cooperate with the
Government, and have the technical capability in many cases
inside the United States to cooperate with the Government to
isolate communications to and from a target, so that you can,
wire or radio, have the kind of specificity that FISA had
applied to the wire side.
Now, again, that is something I think that can be somewhat
talked about publicly. I have no classified information here
but I think everything I said is pretty true. These are much
narrower problems than what is being dealt with in this
legislation, and I think the challenge for this Committee is to
work partly in public hearings, partly in closed sessions, and
nail down each one of these problems and figure out what is the
narrow solution that will work, provide the flexibility, but
provide the checks and balances.
Mr. Schiff. Thank you for the time, Mr. Dempsey. I think
you hit the nail right on the head.
Mr. Coble. Thank you, sir. Mr. Bradbury, I realize you have
to depart at 4 o'clock.
The gentleman from Arizona.
Mr. Flake. Thank you, Mr. Chairman.
Mr. Bradbury, in the Wilson bill, the process for FISA
applications are streamlined so that applicants no longer have
to give an explanation about why they are looking for a wiretap
or wire to wear--I am sorry--why they are looking to wiretap a
person or search a person's home. That is, the language we have
actually prevents some kind of fishing expeditions. This one
seems to get rid of that.
Do you have any concerns about that and why should we
believe that we won't have fishing expeditions?
Mr. Bradbury. Congressman, we actually would have some
suggestions for Congresswoman Wilson on some of those
provisions. We think a balance can be struck that streamlines
the process, reduces the paperwork that Mr. Deitz described,
but provides the necessary amount of information that the Court
should have to make assessments for FISA orders.
Mr. Flake. Let me just echo what Congressman Schiff said
about we are working in the dark here and it is difficult for
us to recognize what streamlining means. We continually hear
this but we don't have a--hear a good explanation and we are
being asked to make sweeping changes without a good
understanding of what is being streamlined, what point A is and
how far we need to move to streamline to point B.
Mr. Deitz, with regard--let's go back to the minimization
again.
Again, currently you say you have an Executive Order which
requires you to, I guess, comply with the FISA regulations with
regard to holding onto information longer than 72 hours.
Can you give the same unequivocal statement that you gave
with regard to no other programs ongoing at this point, that
you are disregarding of information pursuant to that Executive
Order, information that is being gathered by an unintended
target of investigation?
Mr. Deitz. Let me first say the minimization rules long
antedate FISA. The minimization rules have been around for a
lengthy period of time. There are rules, and I don't think I am
comfortable enough to give them to you here, but I would be
happy to provide them. There are rules about how long materials
that ought to be minimized can be kept before being discarded.
So let me make it more positive. There is not in a bin
somewhere in the basement of NSA a collection of all of the
stuff that should have been minimized that is now being
collected someplace else. That is not true.
Mr. Flake. So information is discarded after 72 hours?
Mr. Deitz. I don't know if it is 72 hours. I don't have
that rule off the top of my head.
Mr. Flake. Is it close?
Mr. Deitz. I don't know the answer to that. I don't want to
give it to you in a bad way. I will endeavor to provide that
information to you.
Mr. Dempsey. The 72-hour rule only applies to surveillance
conducted under 1802 of FISA, which is the so-called embassy
exception which hasn't been used that much and which would be
greatly broadened by the Wilson legislation. So I think I--the
72-hour rule only applies to information collected under 1802,
that is, warrantless surveillance of a dedicated facility where
there is no reasonable likelihood that a U.S. person's
communications would be intercepted inside the United States.
There is not a heck of a lot of that anyhow, so it is my
understanding it hasn't been much used.
Mr. Flake. Do you concern--share the concern I have with
regard to the Wilson bill with striking subsection 4 with
regard to the minimization procedures?
Mr. Dempsey. Because of the broad expansion of 1802, so
they are both striking the minimization requirement and saying
that now you can conduct a warrantless surveillance inside the
United States where you expect that you will acquire the
communications of U.S. persons and keep them longer than the 72
hours.
Mr. Flake. Thank you. What if you go to a FISA judge that
turns you down? Can you go to another?
Mr. Bradbury. There are 11 district judges that sit on the
FISA court, appointed by the Chief Justice. They are all
excellent judges. The Department has a good relationship with
the Court. The Department does not forum shop. The Department
comes up 1 week at a time, and as intelligence matters come up,
we don't have the luxury of waiting a week or 2 weeks,
typically. So you bring it to the judge who is available at
that time and each judge operates separately, though they work
very well together.
Mr. Flake. I understand there are current prohibitions
against forum shopping that would be knocked out with the
Wilson legislation; is that your understanding?
Mr. Bradbury. I am not familiar with that.
Mr. Flake. With regard to forum shopping, can you--usually
I believe it is prohibited from going to one judge if another
has turned you down. But the Wilson language, I understand,
would turn that--get rid of that provision or prohibition.
Mr. Dempsey. There is such a provision in the Specter
legislation, I think, but I am not sure if it is in Wilson.
Mr. Coble. Thank you.
Mr. Flake. Thank you, Mr. Chair.
Mr. Coble. The distinguished gentleman from Massachusetts.
Mr. Delahunt. I want to just raise the unfortunate reality
that I have read the transmittal to the Chairman of the Full
Committee, Mr. Sensenbrenner, and it would appear that my
muscle has become flaccid because the transmittal implicates a
response to questions that were posed by the Attorney General
on April 6th, some 4 or 5 months ago, as opposed to a response
to the Wexler--you know, to the Wexler resolution of inquiry.
So we are back to square one, if you will.
I want to be very brief. I just wanted to pick up something
that Mr. Deitz said, you know, regarding scrutiny and the
preparation that was given to the TSP.
Because it would appear that that scrutiny--and maybe he
can clarify, Mr. Bradbury, you can clarify--certainly did not
meet some of the concerns and qualms that prominent career
professionals had in the Department of Justice. Reports were
that there was great consternation among some members of the
Department of Justice about the program. And in fact, on one
occasion, there was a transmission or transmittal to the office
of--the Oval Office I guess, in particular to the Vice
President or his counsel, Mr. Addington, that there would not
be a reauthorization, as was part of the Executive Order
presumably creating the thing, and that there were negotiations
going on that resulted in some sort of a compromise.
Mr. Bradbury? Mr. Deitz?
Mr. Bradbury. Congressman, those matters relate to internal
deliberations of the Executive Branch, and we are really not at
liberty to discuss the discussion of the Executive Branch where
it involves legal advice on decisions that the President is
going to make. I would say that I think the Attorney General
has made a comment or two in the past on those allegations and
those news articles, and I would just refer you to those. It is
really not, I think, appropriate for us here today to comment
on that.
Mr. Delahunt. Mr. Deitz, would you care to----
Mr. Deitz. I have nothing to add. I have no idea what goes
on inside the Department of Justice. I am in the NSA.
Mr. Delahunt. I guess I would ask unanimous consent to
submit for the record an article, I think it is from--it is
Newsweek, entitled ``Palace Revolt,'' where there is
considerable attention to this issue.
So, Mr. Alt, I see where you are affiliated with the
Ashcroft Center.
Mr. Alt. That is incorrect. Ashburn.
Mr. Delahunt. My apologies. But it would appear that some
career professionals within the Department of Justice had some
issues with the program as originally constituted. Presumably
they were constitutional in nature. So that just simply to
dismiss the concerns expressed here today as having no basis in
constitutional law or constitutional jurisprudence, I would
think that members of the Department of Justice--and let me
reiterate that it is the Department of Justice as headed by the
former Attorney General John Ashcroft that raised these very
issues--if you presume there is some accuracy regarding the
report out of Newsweek.
Mr. Alt. If I can respond to that. It has been a while
since I have seen that article but I have read that piece. And
my understanding is that as to how they related that the
dispute didn't necessarily go to questions about the ability to
perhaps do warrantless surveillance in the absence of FISA as a
Fourth Amendment question, which I think is what we have been
discussing today, what are the provisions which are what the
Constitution requires in terms of what searches may be done? It
went to the interpretation of Presidential power, the
Presidential authority essentially under something like
Justice.
Mr. Delahunt. Reclaiming my time. But clearly you heard Mr.
Bradbury talk about one of the rationales for all of the--
father program is the President's inherent constitutional
power. I would call that a constitutional issue.
Mr. Alt. It is, but not actually one before the Committee,
because you are looking at what Congress is going to authorize
the President to do. That naturally would change the level of
authority that the President would have. Under Justice
Jackson's famous Steel case analysis of three levels of
Presidential power were you to give the President authority
under FISA to do this, his power would be at the highest ebb.
The FISA court, by the way, suggested that even at the lowest
ebb, even if FISA attempted to restrict the President's power,
his inherent authority is sufficient. So there is an internal
tussle at Justice, according to this article, as to the
authority of the President if he was acting contrary to FISA;
which, again, there is debate about this, but it doesn't go to
the Fourth Amendment question which is what most of the Members
have been objecting to today, suggesting that in fact
performing these sorts of warrantless wiretaps would tramp upon
the Constitution, even if Congress permitted them to do so.
Mr. Delahunt. Reclaiming my time. My reading of it and I
think the concerns that were expressed, while maybe some
Members did not distinguish between Fourth Amendment and and
Article II powers, they are part of the larger constitutional
issue that I think this Committee, being the Judiciary
Committee, ought to be interested in.
Mr. Dempsey, if you can do it quickly.
Mr. Dempsey. I have not been talking today only about what
is constitutional and what is unconstitutional. I have been
talking about what works. And the lesson of American history is
that unfettered executive power does not work. And in 1978
Congress said we will take this Presidential power and we will
limit it, and every court that has ever considered it has
upheld that Constitutionally and it has well served our
country. So I think that the focus and the checks and balances
work and we should stick with them.
Mr. Coble. The gentleman's time is expired.
The distinguished gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you. I realize we are running out of
time and I will be brief with respect to my friend, the
gentleman from Massachusetts. Interesting opportunity to admit
some problems with flaccidity, but in any event to follow up on
what he was addressing, we do need answers to requests that
were made. We had made requests before I got here under the
PATRIOT Act. It took, it seemed, like 9 months or so to get
answers. And it sure does help us be able to support things
that should be supported if we have answers and can
substantiate the things that we believe are going on, but until
we get answers we can't.
But let me comment. My friend from Texas had indicated
there has been no declaration of war. So under the Constitution
there is no war. Is it just--I can't let that go. She is right.
There has been no declaration of war under the Constitution.
But the fact is, in 1979 when I was at Fort Benning, Georgia,
in the Army, we knew that an act of war was committed against
the United States. When you attack a U.S. Embassy, you are
attacking that country, and that happened. We refused to
recognize that. We had a war declared against us by a foreign
country: Iran.
In 1984, I believe it was, our barracks in Beirut was
attacked. Our military was attacked. That is an act of war. And
we did not do anything about it, though my hero, Ronald Reagan,
was President.
In 1993 another act of war was committed, this time on this
continent, at the World Trade Center. We refused--and the
Administration refused to recognize that as an act of war.
After that, things like the Khobar Towers, the U.S. Embassy,
the infrastructure, the USS Cole. All of these acts of war were
committed and they were not recognized as what they were: acts
of war against this Nation.
So we can continue to play a game and act like we are not
at war, and maybe we are not. But if we are not, it is a one-
sided war and it is going to--and it is against this country,
and we can figuratively bury our heads in the sand and pretend
there is not a war going on. And if we do that, we will leave
our, figuratively, our rear ends exposed. And if you believe
the reports of obesity in this country, that would leave what
we call in the Army a target-rich environment here in the
country, and we cannot afford to allow that to happen.
I appreciate the efforts of the NSA and Mr. Deitz, you said
I don't know what goes on inside the DOJ. Mr. Bradbury, I am
glad to know they don't have you under surveillance at this
time to know what you are doing in the DOJ, but I appreciate
that admission. But seriously, we do need answers to the
requests that have been made. Please don't play games with us.
You know, there are those who want to help, but we can't if we
are having games played with us. And we all do need to work
together, and I hope we can work in a bipartisan manner to
address the war that has been declared against us, whether
people want to recognize it or not.
I yield back my time.
Mr. Coble. Finally someone beat the red light.
Congratulations to Texas.
The gentlelady from Texas, Ms. Jackson Lee. The pressure is
on you for 5 minutes.
Ms. Jackson Lee. It sure is, Mr. President, how
challenging. This very issue in front of us, it is challenging,
and that is what America is all about, that is what this
democracy is all about, accepting challenges, if you will,
unsurmountable tasks and really accomplishing them. And my good
friend from Texas, I am always glad to be the clean-up hitter
on his comments and for the opportunity to correct the, I
think, the incorrect interpretation of my remarks. I want to
remind him that the unfortunate attack on Pearl Harbor
generated the response of the United States Congress to declare
war. I will fault Presidents, Democratic and Republican, who
have failed to come to the United States Congress and ask for a
declaration of war, whether it was Vietnam, whether it was the
Iran hostage situation or any other situation. I think that
chips away at the edges of the constitutional structure of
Government that the Founding Fathers were, frankly, very wise
on.
We saw that misuse and abuse of the Constitution just a few
years ago when we took to task a President on the basis of some
private acts, and we utilized the Constitution in that
instance. So the Constitution can be used or misused. What I
would like to see is have it used appropriately.
And I want to go back to this whole point of certainty by
both Mr. Bradbury and Mr. Deitz, that they seem to be just
clear that no abuse of domestic-to-domestic intelligence
gathering has occurred. I can't be that trustworthy and, as
well, that confident. And frankly, I am going to raise again
the point we need the kind of briefing that will assure us that
this is in fact the case.
I am looking at Mr. Dempsey's comments in his statement,
and he made a point that I think is worth putting on the record
again. I am not sure if he said it in his remarks. In the other
body, Senator Feinstein, one of the Members of the Special
Senate Intelligence Committee that received classified
briefings about the President's program concluded that the
appropriate legislative response would be a bill that narrowly
focused on the issues of the Administrations that caused it to
circumvent FISA; namely, the need for more resources, which is
what Mr. Deitz said was needed. And particularly he made a
point about we can't waste the time of analysts. We need more
analysts. Let us give you more resources narrowly focused on
the issues the Administration said it needed, and that is, of
course, more resources, greater speed in approving FISA's
application, and more flexibility to begin wiretapping in an
emergency situation.
Ms. Jackson Lee. And those are reasonable responses. The
Wilson bill, and I think the DeWine--and I have not given all
of my attention--far exceeds any of that. The Wilson bill also
does the unpardonable, which it closes the door to
congressional oversight as I have interpreted it.
So if I can get a quick response to this question: Mr.
Dempsey, I don't know if you dabble in classified and
intelligence matters, and if you are speaking from that
perspective or strictly the constitutional perspective. But if
we look at the logistical aspect, don't you think it would be
worthy if Members of Congress who are duly elected to represent
the people, who by the way have made--across partisan lines,
raised their voice of outrage on this lawn mower, vacuum
cleaner, if you will, sweeper suction pipe, whatever you want
to say, of data collecting, would it not be logistically
appropriate for Members of Congress in classified briefings to
understand the A, B, Cs and craft legislation that, one, may
not suffer constitutional frailties and/or punish the American
people for the existence of their citizenship?
Mr. Dempsey. I think that the Intelligence Committees are
not a creation of the Constitution. I think the oversight,
their responsibility, is held by Congress as a whole. I think
if you go back to the original drafting of FISA, it was done by
the Intelligence Committees and they received--in classified
session and in public session--fully the information that they
needed to draft that legislation.
Ms. Jackson Lee. It gave the Judiciary some jurisdiction.
Mr. Dempsey. So I think that this Committee continues to
have full authority.
The fact is, of course, the President can stiff you, and as
Congressman Lungren said, then your only real power is the
power of the purse. And I think that, you know, those kinds of
disputes have played out over history in terms of the push and
tug between the President and the Executive Branch.
I think we are in one of those pushes and pulls right now.
I think we have a President with some radical notions of
Executive authority. All Presidents have asserted executive
authority and have resisted congressional oversight.
Ms. Jackson Lee. If I can reclaim my time, because I do
want the Administration to be able to answer, frankly. I think
the push and pull is valid, but I think leaving us empty handed
and with a bag of money as our only option of oversight is both
frustrating and also pocked with holes. We need to write
legislation that, frankly, in this instance of the war on
terror--undeclared war but in terms of what we are engaged in,
the precipitous acts of terror which we have to address, the
Congress has not divided, except for my good friends' failure
sometimes to fully question their own Administration on the
tools. And therefore I don't think we should be relegated to
cutting your money off.
What we should be doing is writing the right kind of
legislation that is not one-sided, that is not Republican
legislation, but is bipartisan legislation. And the only thing
the Administration has come here to say is, go ahead with the
Republican legislation, which I think is full of holes.
So I would offer to say, why can't we--and again you are
going to offer the policy question, so I will let you be the
person to take the message back--get the facts and write
legislation that answers the Administration's concerns, but
provides the oversight that the American people deserve? And,
again, I might say to you that the British busting of that
terrorist act was confined, as I understand it, to their
guidelines utilizing the Secretary of State. It was good police
work and good intelligence, and it didn't engage in the
obliteration of their provisions of constitutional soundness or
their provisions of soundness or the rights of their citizens.
And so I offer to say we don't need to either.
Mr. Bradbury, will you try to answer the question?
Mr. Bradbury. Thank you, Congresswoman.
I would just point out that Representative Wilson's bill
includes a section 9 on congressional oversight. And in her
provision she has a provision, subsection 3 on page 17, that
says each report submitted under this subsection shall include
reports on electronic surveillance conducted without a court
order.
So there is an oversight provision in Representative
Wilson's bill.
Ms. Jackson Lee. And you don't mind if we could make the
oversight broader and stronger in compliance with our
understanding of the need? Again, I don't think you are going
to go anywhere with the single bill written by a single
Republican that the Administration has now adopted. And I think
my friends have made a point very well taken. Ninety days out
before an election is not a time to play politics with who
writes a bill. The bill needs to be bipartisan because that is
what the American people are wanting, a bill that fills all the
holes that we think are now in the President's private or
secret program.
Mr. Bradbury. I am sorry; I wanted to also add that under
the National Security Act, the Intelligence Committees receive
oversight briefings of all kinds on intelligence programs of
the United States, including surveillance programs of the NSA
and other agencies that are outside the scope of FISA. So those
oversight reports are going to go on.
Ms. Jackson Lee. But you are the implementer and you are
the Department of Justice and that is the oversight under this
Judiciary Committee and that is where part of the failure is.
Yes, sir?
Mr. Deitz. If I could make two small points, Congresswoman
Jackson Lee. The first is--well, my testimony is designed to
show the shortcomings of FISA. Even if we had all the resources
in the world, why should we spend those resources on FISA's
protecting non-U.S. persons? And that is what the current FISA
does in many contexts. In other words, it is not just
restricted to protecting U.S. persons. It is now protecting
people that have no entitlement to constitutional protection.
And so that is why NSA is--my testimony reads the way it does
and why we are supporting changes.
Second is just a small point. One has to be very careful in
comparing British warrants with U.S. warrants. In fact, our
Fourth Amendment reflects the difference between U.S. warrants
and British warrants.
Thank you.
Ms. Jackson Lee. Mr. Chairman, let me just conclude and
thank you for your courtesies. That is--you have just answered
our request to have the kind of classified briefings for this
Committee, Judiciary, so that I can be convinced that we are
spending resources and protecting the rights of other than
citizens due the constitutional privilege. You are saying it,
of course, but my question is--and you won't be able to answer
it, and I will put it on the record--that there are certainly
merits to ensure that our citizens' rights are protected, and
if by chance there is a spillover of either coverage or
resources to make sure that our citizens' rights are protected,
so be it.
But in an explanation that is classified I assume you could
be more probative and more detailed in your response. I don't
think we have gotten anywhere to convince us that we cannot do
this within the confines of a constitutional premise of FISA
initiative that is either secure or more secure or more helpful
to any executive, whether it is this one or the next one. And I
believe it is going to be very difficult to do this if my good
friends run over us without the facts that are necessary to
write the right kind of legislation.
Mr. Deitz. If I can just say, Congresswoman, I have a
couple of times today averred to the fact that in closed
session I would be happy to go into details, as much detail as
you want, explaining precisely what the problems are with FISA
as it exists today.
Mr. Coble. Mr. Deitz, I didn't hear what you said. You said
there is a difference between American and British what?
Mr. Deitz. Under the Fourth Amendment--actually the British
general warrants.
Mr. Coble. Okay. I did not----
Mr. Deitz. General warrants in England, as we are always
tweaking our British colleagues, British warrants still exist.
Ms. Jackson Lee. But it is under a procedure, Mr. Chairman;
that is the difference.
Mr. Coble. You indicated, Mr. Dempsey, that the
Intelligence Subcommittees formulated FISA, but I think that
the Judiciary Committee was also involved.
Ms. Jackson Lee. Thank you, Mr. Chairman. And I indicated
that we had the jurisdiction.
Mr. Dempsey. Mr. Chairman, if I did say that, I misspoke. I
meant to say that it was the Judiciary Committees that played a
major role in that.
Ms. Jackson Lee. You misspoke.
Mr. Coble. We have run a marathon today, and I am going to
recognize the distinguished Ranking Member who wants to
conclude this marathon.
Mr. Scott. Thank you, Mr. Chairman. I appreciate the
opportunity to say a final word.
We have been asked to expand the situations where there
would be warrantless searches, warrantless wiretaps, and what
has leaked out so far are situations which clearly ought to
be--people ought to be able to get a warrant. If you have a
known al-Qaeda member calling in the United States, you ought
to be able to get a warrant.
Again, we don't know what is going on. We have been told
that the witnesses before us won't tell us what is going on.
Mr. Deitz has indicated he will tell us the problems, but has
indicated what is going on is above his pay grade as to who
gets to know that.
Since what has been leaked out are obviously situations for
which you could get a warrant, we are not talking about whether
you wiretap or not, but whether you will get a warrant before
or after you begin the wiretap.
In a democracy, we have checks and balances. The
Administration witness makes it clear that the Administration
believes that the check and balance means the Executive Branch
checking on itself.
Some of us--and traditionally the case has been, the check
and balance means another branch of Government gets to review
the situation, and in this situation it is the court, getting a
warrant through a court. And what they are asking now is to go
warrantless, which means essentially no checks and balances
from the other branch.
Finally, Mr. Chairman, I think a number of us are unwilling
to consider any legislation without knowing exactly what is
going on, particularly since several of the bills will again
expand the situations where there will be warrantless searches
and warrantless wiretaps without any articulated reason,
because the situations that have been articulated are clearly
situations where a warrant can be obtained today.
Mr. Coble. I thank the gentleman. The marathon concludes.
Mr. Deitz, in conclusion, I would like to reiterate what I
said earlier. That is that you and the NSA people do appear
regularly before the House and Senate Intelligence Committees
and the Republican and Democrat leadership. So I want everyone
to understand that clearly.
Mr. Bradbury, we are going to get you out of here
belatedly, but I thank you all for your testimony. We
appreciate your contribution.
In order to ensure a full record and adequate consideration
of this important issue, the record will be left open for
additional submissions for 7 days. Within that--also any
written question that a Member wants to submit should be
submitted within the same 7-day period.
This concludes the legislative hearing, Legislative
Proposals to Update the Foreign Intelligence Surveillance Act
(FISA).
Thank you all for your cooperation, and the Subcommittee
stands adjourned.
[Whereupon, at 4:17 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
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
Mr. Chairman. I want to thank you for holding this hearing on the
various proposals to address the NSA domestic surveillance issue.
However, this is a much broader issue than encompassed by the various
proposals and certainly more broad than any one witness from the
minority side can hope to adequately address in a 5 minute statement.
So, I am hopeful that this is merely the start of a series of hearings
on this subject area. I look forward to working with you to fully
explore the issue of how our government can appropriately and
effectively conduct surveillance on those who would harm Americans
without the government harming Americans through violations of their
rights, freedoms, privacies and protections under law.
When law enforcement or intelligence officials have something or
someone on which they deem it appropriate to conduct surveillance, I
find it insulting and disingenuous to our system of laws and procedures
for someone to suggest it is inconvenient to comply with them by
obtaining a warrant or a court order. And it is not adequate or
consistent with our system of checks and balances of government
authority and power to suggest that notifying Congress under
circumstances where members can go to jail for discussing what you tell
them. Unfortunately, under the proposals before us that are likely to
get consideration, here we go again using terrorism as a basis to
greatly expand the government's authority to conduct surveillance on
innocent Americans in the U.S. without having to prove to a court, or
any other detached entity, that there is any reasonable basis for such
surveillance.
First of all, we don't even know what kind of surveillance is
currently being done by NSA. The logic used by the Administration to
listen in on calls applies equally to wholly domestic calls as to
foreign calls. Yet, without any public or otherwise effective oversight
and assessment of whether what the President, through the NSA, is doing
in secretly conducting surveillance on Americans is legal, we are not
only designating it as legal in the majority proposals, but greatly
expanding his opportunity to do so.
We have seen in numerous instances that this Administration sees
itself as above traditional boundaries of law. We saw this with the
process for declaring people as enemy combatants, including some who
are American citizens, holding them indefinitely with no end in sight
and depriving them of all rights and remedies to even contest their
designation. And when the Administration finally did have to
acknowledge the necessity for charging and trying the accused persons,
the decision was made to try them through military tribunals. We also
saw this same approach in the policies promoted by the torture
memorandum leading to the Abu Ghraib torture incidents. In addition, we
saw it with the Attorney General's decision to listen in on Attorney/
client conversations for detained persons and now with the previously
secret decision to listen in on conversations of Americans coming into
or going out of the country, and whatever else they are doing in the
NSA domestic program. We don't know because we have not called upon
them to account to this oversight committee. All of these activities
avoid any approval or scrutiny of the courts. We only find out what the
true nature of what is happening when it is brought into the courts
through challenges to its constitutionality as we found with the
Padilla and Hamdan cases. And now we see it with the NSA case brought
by the ACLU which is working its way through the courts after the
initial finding of unconstitutionality. So, instead of moving now to
try to cloak the Activity in a veil of legitimacy through legislation,
we should await the court's final determination, or simply have the
Administration proceed on its indication that it would seek the FISA
court's approval of its activities.
It is simply unacceptable to Americans that a call made or received
by a citizen in this country can be listened to or otherwise
intercepted by the government without approval, or review by a court
with authority to authorize or deny such interception based whether
good cause is shown under law. To do so is tantamount to operating
under a police state and at variance with some of the most important
principles upon which this nation was founded.
And all of this done without any presentation or indication of a
need for such sweeping additional government authority over citizens'
private affairs, or any credible evidence or findings of any
inadequacies in current law to justify such a drastic change in law.
The one productive thing of note the Wilson/Sensenbrenner and Specter
bills do, by analogy, is confirm that the current NSA surveillance
activity is patently illegal or there would not be a need for such
sweeping expansion of foreign intelligence surveillance powers.
So, I hope we will carefully study this issue, Mr. Chairman, and
move to require the Administration to come into compliance with
existing law. There is no inconsistency in protecting us from terrorism
and remaining a country which operates under the rule of law. We should
first assure complyiance with existing law and then determine whether
any changes are needed to provide for greater effectiveness and
efficiency on the part of law enforcement, not try to change the law
provide for what law enforcement is doing after the fact. I look
forward to the testimony of our witnesses on this important issue.
__________
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.
__________
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
I thank the Chairman and Ranking Member. I am also happy to welcome
the witnesses who will help us understand whether there is a need to
update the Foreign Intelligence Surveillance Act of 1978. I look
forward to hearing their testimony. I must say, however, that I am very
skeptical of the need to update FISA. I believe the statutory framework
established by the Congress is more than adequate to the present
crisis. What is needed is for the President to comply with the law and
for the Congress to exercise oversight over the executive branch.
FISA has served the nation well for nearly 30 years, placing
electronic surveillance inside the United States for foreign
intelligence and counter-intelligence purposes on a sound legal
footing. Proponents of changing this scheme bear a heavy burden of
justification and so far, there has been no justification at all on the
public record. To the contrary, the statements of the Bush
Administration indicate that FISA is working well (when it is followed)
and offer no justification for major changes to the Act.
In terms of the President's warrantless surveillance programs,
there is still nothing on the public record about the nature and
effectiveness of those programs to indicate that they require a
legislative response, other than to reaffirm the exclusivity of FISA
and insist that it be followed. This is accomplished by H.R. 5371, the
``Lawful Intelligence and Surveillance of Terrorists in an Emergency by
NSA Act'' (LISTEN Act),'' which I have co-sponsored with the Ranking
Members of the Judiciary and Intelligence Committees, Mr. Conyers and
Ms. Harman.
The Bush Administration must explain to Congress why it is
necessary to change the law and Congress must satisfy itself that any
recommended changes would be constitutionally permissible. Congress
needs this information both to responsibly carry out its duty to
legislate and to fulfill its obligation to oversee surveillance
activities inside the United States, ensuring that they protect
national security, safeguard civil liberties, and comply with the
Fourth Amendment.
The Bush Administration has not complied with its legal obligation
under the National Security Act of 1947 to keep the Intelligence
Committees ``fully and currently informed'' of U.S. intelligence
activities. As Chairman Hoekstra himself recently said in his letter to
the President, ``Congress simply should not have to play Twenty
Questions to get the information that it deserves under our
Constitution.'' Congress cannot continue to rely on incomplete
information from the Bush Administration or revelations in the media.
It must conduct a full and complete inquiry into electronic
surveillance in the United States and related domestic activities of
the NSA, both those that occur within FISA and those that occur outside
FISA.
The inquiry must not be limited to the legal questions. It must
include the operational details of each program of intelligence
surveillance within the United States, including: (1) who the NSA is
targeting; (2) how it identifies its targets; (3) the information the
program collects and disseminates; and most important; (4) whether the
program advances national security interests without unduly
compromising the privacy rights of the American people.
Before Congress can even begin to discuss amending FISA, it must
consider how the statute works, the technology used, and the
operational reality of NSA activities inside the United States. The
Bush Administration has not identified any technological barriers to
the operation of FISA. Moreover, most of the legislative proposals to
amend FISA do not attempt to ``modernize'' the law, but rather erode
Fourth Amendment protections since available technology allows the
interception of more communications. In addition, it is important to
note that in the Patriot Act and in subsequent legislation, Congress
has repeatedly amended FISA to loosen its standards in response to the
Bush Administration's request to ``modernize'' the statute. Given the
unprecedented amount of information Americans now transmit
electronically and the post-9/11 loosening of regulations governing
information sharing, the risk of intercepting and disseminating the
communications of ordinary Americans is vastly increased, requiring
more precise--not looser--standards, closer oversight, new mechanisms
for minimization, and limits on retention of inadvertently intercepted
communications.
Although expansion of FISA surveillance authority is inappropriate,
Congress should consider ways to improve FISA compliance,
accountability, oversight, and transparency. As stated above, this
requires a thorough investigation. Congress can and must conduct a
thorough investigation without compromising national security. This is
what happened thirty years ago during the Church Committee's
investigation of domestic surveillance during the Cold War.
Thank you for convening this hearing Mr. Chairman and welcome to
the witnesses.
I yield back the remainder of my time.
__________
Prepared Statement of the Honorable Jane Harman, a Representative in
Congress from the State of California
Thank you, Mr. Chairman, for allowing me to speak on this important
issue.
As one of the few members of Congress briefed on the Domestic
Surveillance Program, I know that all domestic surveillance can be
conducted under the Foreign Intelligence Surveillance Act of 1978
(FISA). That is how Ranking Member Conyers and I arrived at the
``Lawful Intelligence and Surveillance of Terrorists in an Emergency by
NSA Act'' (The LISTEN Act). The Act makes clear that any attempt to
listen in on Americans must be conducted in accordance with FISA and
Title III. It reiterates that FISA and Title III are the exclusive ways
to conduct electronic surveillance of U.S. persons on U.S. soil and
that the Authorization to Use Military Force, passed in October 2002,
did not constitute authority to engage in electronic surveillance
outside of FISA.
The President and Attorney General claim that the FISA process is
too slow. For that reason, the LISTEN Act provides tools to process
emergency warrant applications quickly, and authorizes funds to
increase capabilities at the NSA and Department of Justice. It would
require the President to report to Congress a plan for increasing
resources and personnel and new information technology systems at the
National Security Agency and the Department of Justice if he feels the
current procedures are inadequate for fast and effective lawful
surveillance.
The LISTEN Act is a narrowly-tailored bill, which gives the
President precisely what he has said he needs, and no more.
Since we introduced it, the LISTEN Act has generated a strong
record of support. Since then, the number of co-sponsors has increased
to 64, including all 9 HPSCI Democrats, and we have received additional
letters of support, from former Congressman Bob Barr, the ACLU, the
Center for Democracy and Technology, the American Bar Association, the
Open Society Policy Center and former Reagan Justice Department
attorney Bruce Fein.
FISA has been modernized in 12 ways since 9/11 - we have enacted
every change requested by the President.
I support the notion that FISA should be technology neutral - that
is, that the legal protections should be the same whether the
interception takes place on a fiber line or over the airwaves.
But some of the other proposals out there - including Congresswoman
Wilson's bill - go well beyond that - and propose major changes to FISA
that, in my view, are not necessary and are potentially very dangerous.
The many complicated loopholes of the Wilson bill and other
proposals basically give the President a blank check to ignore the
requirements of FISA. These bills basically make surveillance without a
warrant the rule rather than the exception. We need to be extremely
careful here.
Our Constitution requires particularized suspicion. The LISTEN Act
preserves that. The Constitution isn't broken, and neither is FISA. I
think we should follow a version of the Pottery Barn rule here - if it
ain't broke. . .don't break it.
Thank you, Mr. Chairman.
__________
Letter from the Honorable Sheila Jackson Lee to the Honorable F. James
Sensenbrenner, Jr., and the Honorable John Conyers, Jr.
May 12, 2006
Hon. F. James Sensenbrenner, Jr., Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Hon. John Conyers, Jr., Ranking Member
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Re: Request for Hearing into NSA Domestic Surveillance Program
Dear Chairman Sensenbrenner and Ranking Member Conyers:
The shocking revelations that the National Security Agency has been
secretly collecting the phone call records of tens of millions of
Americans, using data provided by AT&T, Verizon, and BellSouth make it
more important than ever for the Judiciary Committee to launch an
immediate investigation of the massive NSA domestic surveillance
program.
The collection of phone call records of tens of millions of
Americans constitutes an invasion of privacy unprecedented in the
history of the nation. Compounding this breach of public trust is the
fact that the massive database was compiled with the secret but
voluntary assistance of several major American corporations. According
to the report published in USA Today yesterday, the usefulness of the
NSA's domestic phone-call database as a counterterrorism tool is
unclear. Also unknown is the extent to which the database has been used
for other purposes. These and other subjects should be the focus of the
hearings the Judiciary Committee should hold to ensure that the rights
of American citizens are not being abridged by the NSA domestic
surveillance program ordered by the White House.
Thank you for the serious consideration you will give this request.
Please let me know if you would like additional information. I am
available to discuss this matter with you at your earliest convenience.
Very truly yours,
Sheila Jackson Lee
Member of Congress
__________
Letter to the Honorable Peter Hoekstra and the Honorable Jane Harman
from Caroline Fredrickson, Director of the Washington Legislative
Office, and Lisa Graves, Senior Counsel for Legislative Strategy,
American Civil Liberities Union (ACLU)
__________
Newsweek Article, ``Palace Revolt,'' dated February 6, 2006
palace revolt
They were loyal conservatives, and Bush appointees. They fought a
quiet battle to rein in the president's power in the war on terror. And
they paid a price for it. A NEWSWEEK investigation.
By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
Newsweek
Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former
prosecutor who looks a little like Jimmy Stewart, resigned as deputy
attorney general in the summer of 2005. The press and public hardly
noticed. Comey's farewell speech, delivered in the Great Hall of the
Justice Department, contained all the predictable, if heartfelt,
appreciations. But mixed in among the platitudes was an unusual
passage. Comey thanked ``people who came to my office, or my home, or
called my cell phone late at night, to quietly tell me when I was about
to make a mistake; they were the people committed to getting it right--
and to doing the right thing--whatever the price. These people,'' said
Comey, ``know who they are. Some of them did pay a price for their
commitment to right, but they wouldn't have it any other way.''
One of those people--a former assistant attorney general named Jack
Goldsmith--was absent from the festivities and did not, for many
months, hear Comey's grateful praise. In the summer of 2004, Goldsmith,
43, had left his post in George W. Bush's Washington to become a
professor at Harvard Law School. Stocky, rumpled, genial, though
possessing an enormous intellect, Goldsmith is known for his lack of
pretense; he rarely talks about his time in government. In liberal
Cambridge, Mass., he was at first snubbed in the community and mocked
as an atrocity-abetting war criminal by his more knee-jerk colleagues.
ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.
They had no idea. Goldsmith was actually the opposite of what his
detractors imagined. For nine months, from October 2003 to June 2004,
he had been the central figure in a secret but intense rebellion of a
small coterie of Bush administration lawyers. Their insurrection,
described to NEWSWEEK by current and former administration officials
who did not wish to be identified discussing confidential
deliberations, is one of the most significant and intriguing untold
stories of the war on terror.
These Justice Department lawyers, backed by their intrepid boss
Comey, had stood up to the hard-liners, centered in the office of the
vice president, who wanted to give the president virtually unlimited
powers in the war on terror. Demanding that the White House stop using
what they saw as farfetched rationales for riding rough-shod over the
law and the Constitution, Goldsmith and the others fought to bring
government spying and interrogation methods within the law. They did so
at their peril; ostracized, some were denied promotions, while others
left for more comfortable climes in private law firms and academia.
Some went so far as to line up private lawyers in 2004, anticipating
that the president's eavesdropping program would draw scrutiny from
Congress, if not prosecutors. These government attorneys did not always
succeed, but their efforts went a long way toward vindicating the
principle of a nation of laws and not men.
The rebels were not whistle-blowers in the traditional sense. They
did not want--indeed avoided--publicity. (Goldsmith confirmed public
facts about himself but otherwise declined to comment. Comey also
declined to comment.) They were not downtrodden career civil servants.
Rather, they were conservative political appointees who had been
friends and close colleagues of some of the true believers they were
fighting against. They did not see the struggle in terms of black and
white but in shades of gray--as painfully close calls with unavoidable
pitfalls. They worried deeply about whether their principles might put
Americans at home and abroad at risk. Their story has been obscured
behind legalisms and the veil of secrecy over the White House. But it
is a quietly dramatic profile in courage. (For its part the White House
denies any internal strife. ``The proposition of internal division in
our fight against terrorism isn't based in fact,'' says Lea Anne
McBride, a spokeswoman for Vice President Dick Cheney. ``This
administration is united in its commitment to protect Americans, defeat
terrorism and grow democracy.'')
The chief opponent of the rebels, though by no means the only one,
was an equally obscure, but immensely powerful, lawyer-bureaucrat.
Intense, workaholic (even by insane White House standards), David
Addington, formerly counsel, now chief of staff to the vice president,
is a righteous, ascetic public servant. According to those who know
him, he does not care about fame, riches or the trappings of power. He
takes the Metro to work, rather than use his White House parking pass,
and refuses to even have his picture taken by the press. His habitual
lunch is a bowl of gazpacho, eaten in the White House Mess. He is
hardly anonymous inside the government, however. Presidential
appointees quail before his volcanic temper, backed by assiduous
preparation and acid sarcasm.
Addington, 49, has worked as an adviser to Dick Cheney off and on
since Cheney was a member and Addington a staffer on the House
Intelligence Committee in the mid-'80s. When Cheney became secretary of
Defense in the Bush 41 administration, Addington served at the Pentagon
as general counsel. When Cheney became vice president to Bush 43, he
brought Addington into the White House as his lawyer. Counsel to the
vice president is, in most administrations, worth less than the
proverbial bucket of warm spit, but under Prime Minister Cheney, it
became a vital power center, especially after 9/11.
Like his boss, Addington has long believed that the executive
branch was pitifully weakened by the backlash from Vietnam and the
Watergate scandal. Fearful of investigative reporters and congressional
subpoenas, soldiers and spies had become timid--"risk averse'' in
bureaucratic jargon. To Addington and Cheney, the 9/11 attacks--and the
threat of more and worse to come--were perfect justification for
unleashing the CIA and other long-blunted weapons in the national-
security arsenal. Secretary of Defense Donald Rumsfeld, who disdains
lawyers, was ready to go. So, too, was CIA Director George Tenet--but
only if his spooks had legal cover, so they wouldn't be left holding
the bag if things went wrong.
Addington and a small band of like-minded lawyers set about
providing that cover--a legal argument that the power of the president
in time of war was virtually untrammeled. One of Addington's first jobs
had been to draft a presidential order establishing military
commissions to try unlawful combatants--terrorists caught on the global
battlefield. The normal ``interagency process"--getting agreement from
lawyers at Defense, State, the intelligence agencies and so forth--
proved glacial, as usual. So Addington, working with fellow
conservative Deputy White House Counsel Timothy Flanigan, came up with
a solution: cut virtually everyone else out. Addington is a purist, not
a cynic; he does not believe he is in any way ignoring or twisting the
law. It is also important to note that Addington was not sailing off on
some personal crusade; he had the full backing of the president and
vice president, who shared his views. But, steeped in bureaucratic
experience and clear in his purpose, Addington was a ferocious
infighter for his cause. (Addington declined to comment. But McBride,
the vice president's spokeswoman, said, ``David Addington has a long,
distinguished record of public service. He's committed to the
president's agenda.'')
Inexperienced in national-security law, White House Counsel Alberto
Gonzales was steered by more-expert lawyers like Addington and
Flanigan. Others, like John Bellinger, the National Security Council's
top lawyer, were simply not told what was going on. Addington and the
hard-liners had particular disregard for Bellinger, who was considered
a softie--mocked by Addington because he had lunch once a month or so
with a pillar of the liberal-leaning legal establishment, the late
Lloyd Cutler. When Addington and Flanigan produced a document--signed
by Bush--that gave the president near-total authority over the
prosecution of suspected terrorists, Bellinger burst into Gonzales's
office, clearly upset, according to a source familiar with the episode.
But it was too late.
Addington was just getting started. Minimizing dissent by going
behind the backs of bureaucratic rivals was how he played the game. A
potentially formidable obstacle, however, was the Justice Department's
Office of Legal Counsel. The OLC is the most important government
office you've never heard of. Among its bosses--before they went on the
Supreme Court--were William Rehnquist and Antonin Scalia. Within the
executive branch, including the Pentagon and CIA, the OLC acts as a
kind of mini Supreme Court. Its carefully worded opinions are regarded
as binding precedent--final say on what the president and all his
agencies can and cannot legally do.
Addington found an ally in an OLC lawyer whose name--John Yoo--
would later become synonymous with the notion that power is for the
president to use as he sees fit in a time of war. Shortly after 9/11,
Yoo wrote, in a formal OLC opinion, that Congress may not ``place any
limits on the President's determinations as to any terrorist threat,
the amount of military force to be used in response, or the method,
timing, and nature of the response.''
The brainy, pleasant and supremely self-confident Yoo became
Addington's main man at Justice, a prolific author of legal opinions
granting the president maximum power during wartime. In the winter of
2002, the CIA began catching top Qaeda terrorists--so-called High Value
Targets--like Abu Zubaydah. These hard-case jihadists proved resistant
to normal methods of interrogation. In the fevered atmosphere of the
time, the Bush administration feared a ``second wave'' attack from
Qaeda sleeper cells still inside the United States. The CIA wanted
legal permission to use ``coercive methods.''
An August 2002 OLC memo, signed by the then head of the OLC--Jay
Bybee--but drafted by Yoo, gave the agency what it needed. The
controversial document, which became famous as the ``torture memo''
when it leaked two years later, defined torture so narrowly that, short
of maiming or killing a prisoner, interrogators had a free hand. What's
more, the memo claimed license for the president to order methods that
would be torture by anyone's definition--and to do it wholesale, and
not just in specific cases. A very similar Yoo memo in March 2003 was
even more expansive, authorizing military interrogators questioning
terror suspects to ignore many criminal statutes--as well as the strict
interrogation rules traditionally used by the military. Secretary of
Defense Rumsfeld put some limits on interrogation techniques, and they
were intended to be used only on true terror suspects. Perhaps
inevitably, however, ``coercive interrogation methods'' spread from
Guantanamo Bay, which housed terror suspects, into prisons like Abu
Ghraib, where detainees could be almost anyone. (Poor leadership in the
chain of command and on the ground was partly to blame, as well as
loose or fuzzy legal rules.) The result: those grotesque images of
Iraqis being humiliated by poorly trained and sadistic American prison
guards, not to mention prisoners who have been brutalized and in some
cases killed by interrogators in Afghanistan and elsewhere.
In the summer of 2003, Yoo, who stands by his body of work, left
the Justice Department and returned to teaching law. His departure came
in the midst of a critical power struggle. Addington and Gonzales had
both wanted to make Yoo head of the OLC when Bybee went off to take a
federal judgeship in March 2003, but Attorney General John Ashcroft
balked. Ashcroft's reasons were apparently bureaucratic. (He declined
to speak for this story.) According to colleagues, he resented Yoo's
going behind his back to give the White House a private pipeline into
the OLC. Yoo denied circumventing Ashcroft. ``OLC kept the attorney
general or his staff fully informed of all of its work in the war on
terrorism,'' he said.
Jack Goldsmith, a law professor who was working in the general
counsel's office at the Pentagon, was the eventual compromise choice to
head the OLC. Goldsmith seemed like a natural fit. He was brilliant, a
graduate of Oxford and Yale Law School, and he was conservative. Like
Yoo, he was tagged a ``New Sovereigntist'' for his scholarly argument
that international laws including prohibitions on human-rights abuses
should not be treated as binding law by the U.S. courts.
But somehow, in the vetting of Goldsmith, one of his important
views was overlooked. Goldsmith is no executive-power absolutist.
What's more, his friends say, he did not intend to be a patsy for
Addington and the hard-liners around Cheney. Goldsmith was not the
first administration lawyer to push back against Addington & Co. At the
CIA, general counsel Scott Muller had caused a stir by ruling that CIA
agents could not join with the military in the interrogation of Iraqi
prisoners. But Goldsmith became a rallying point for Justice Department
lawyers who had legal qualms about the administration's stance.
Goldsmith soon served notice of his independence. Shortly after
taking over the OLC in October 2003, he took the position that the so-
called Fourth Geneva Convention--which bars the use of physical or
moral coercion on prisoners held in a militarily occupied country--
applied to all Iraqis, even if they were suspected of belonging to Al
Qaeda.
Addington soon suffered pangs of buyer's remorse over Goldsmith.
There was no way to simply ignore the new head of the OLC. Over time,
Addington's heartburn grew much worse. In December, Goldsmith informed
the Defense Department that Yoo's March 2003 torture memo was ``under
review'' and could no longer be relied upon. It is almost unheard-of
for an administration to overturn its own OLC opinions. Addington was
beside himself. Later, in frequent face-to-face confrontations, he
attacked Goldsmith for changing the rules in the middle of the game and
putting brave men at risk, according to three former government
officials, who declined to speak on the record given the sensitivity of
the subject.
Addington's problems with Goldsmith were just beginning. In the
jittery aftermath of 9/11, the Bush administration had pushed the top-
secret National Security Agency to do a better and more expansive job
of electronically eavesdropping on Al Qaeda's global communications.
Under existing law--the Foreign Intelligence Surveillance Act, or FISA,
adopted in 1978 as a post-Watergate reform--the NSA needed (in the
opinion of most legal experts) to get a warrant to eavesdrop on
communications coming into or going out of the United States. Reasoning
that there was no time to obtain warrants from a secret court set up
under FISA (a sometimes cumbersome process), the Bush administration
justified going around the law by invoking a post-9/11 congressional
resolution authorizing use of force against global terror. The
eavesdropping program was very closely held, with cryptic briefings for
only a few congressional leaders. Once again, Addington and his allies
made sure that possible dissenters were cut out of the loop.
There was one catch: the secret program had to be reapproved by the
attorney general every 45 days. It was Goldsmith's job to advise the
A.G. on the legality of the program. In March 2004, John Ashcroft was
in the hospital with a serious pancreatic condition. At Justice, Comey,
Ashcroft's No. 2, was acting as attorney general. The grandson of an
Irish cop and a former U.S. attorney from Manhattan, Comey, 45, is a
straight arrow. (It was Comey who appointed his friend--the equally
straitlaced and dogged Patrick Fitzgerald--to be the special prosecutor
in the Valerie Plame leak-investigation case.) Goldsmith raised with
Comey serious questions about the secret eavesdropping program,
according to two sources familiar with the episode. He was joined by a
former OLC lawyer, Patrick Philbin, who had become national-security
aide to the deputy attorney general. Comey backed them up. The White
House was told: no reauthorization.
The angry reaction bubbled up all the way to the Oval Office.
President Bush, with his penchant for put-down nicknames, had begun
referring to Comey as ``Cuomey'' or ``Cuomo,'' apparently after former
New York governor Mario Cuomo, who was notorious for his Hamlet-like
indecision over whether to seek the Democratic presidential nomination
in the 1980s. A high-level delegation--White House Counsel Gonzales and
chief of staff Andy Card--visited Ashcroft in the hospital to appeal
Comey's refusal. In pain and on medication, Ashcroft stood by his No.
2.
A compromise was finally worked out. The NSA was not compelled to
go to the secret FISA court to get warrants, but Justice imposed
tougher legal standards before permitting eavesdropping on
communications into the United States. It was a victory for the Justice
lawyers, and it drove Addington to new levels of vexation with
Goldsmith.
Addington is a hard man to cross. Flanigan, his former White House
colleague, described his M.O.: ``David could go from zero to 150 very
quickly. I'm not sure how much is temper and how much is for effect. At
a meeting with government bureaucrats he might start out very calm.
Then he would start with the sarcasm. He could say, 'We could do that,
but that would give away all of the president's power.' All of a sudden
here comes David Addington out of his chair. I'd think to myself we're
not just dancing a minuet, there's a little slam dancing going on
here.'' But Addington ``usually had the facts, the law and the
precedents on his side,'' says Flanigan. He had another huge advantage.
He never needed to invoke Cheney's name, but everyone knew that he
spoke for the vice president.
Addington was particularly biting with Goldsmith. During a long
struggle over the legality of the August 2002 torture memo, Addington
confronted Goldsmith, according to two sources who had heard accounts
of the conversation: ``Now that you've withdrawn legal opinions that
the president of the United States has been relying on, I need you to
go through all of OLC's opinions [relating to the war on terror] and
let me know which ones you still stand by,'' Addington said.
Addington was taking a clever dig at Goldsmith--in effect, accusing
him of undermining the entire edifice of OLC opinions. But he was not
making a rhetorical point. Addington began keeping track of opinions in
which he believed Goldsmith was getting wobbly--carrying a list inside
his suit pocket.
Goldsmith was not unmoved by Addington's arguments, say his friends
and colleagues. He told colleagues he openly worried that he might be
putting soldiers and CIA officers in legal jeopardy. He did not want to
weaken America's defenses against another terrorist attack. But he also
wanted to uphold the law. Goldsmith, known for putting in long hours,
went to new extremes as he reviewed the OLC opinions. Colleagues
received e-mails from him at all hours of the night. His family--his
wife, 3-year-old son and newborn baby boy--saw him less and less often.
Sometimes he would take his older boy down to the Justice Department's
Command Center on Saturdays, just to be near him.
By June 2004, the crisis came to a head when the torture memo
leaked to The Washington Post. Goldsmith was worn out but still
resolute. He told Ashcroft that he was formally withdrawing the August
2002 torture memo. With some prodding from Comey, Ashcroft again backed
his DOJ lawyers--though he was not happy to engage in another battle
with the White House. Comey, with Goldsmith and Philbin at his side,
held a not-for-attribution background briefing to announce that the
Justice Department was disavowing the August 2002 torture memo. At the
same time, White House officials held their own press conference, in
part to counter what they saw as Comey's grandstanding. A fierce
behind-the-scenes bureaucratic fight dragged on until December, when
the OLC issued a new memo that was hardly to the taste of human-rights
activists but contained a much more defensible (and broader) definition
of torture and was far less expansive about the power of the president
to authorize coercive interrogation methods. The author of the revised
memo, senior Justice Department lawyer Daniel Levin, fought pitched
battles with the White House over its timing and contents; yet again,
Comey's intervention was crucial in helping Levin and his allies carry
the day.
By then, Goldsmith was gone from Justice. He and his wife (who is a
poet) and two children had moved to Cambridge, where Goldsmith had
taken a job on the Harvard Law faculty. Other dissenting lawyers had
also moved on. Philbin, who had been the in-house favorite to become
deputy solicitor general, saw his chances of securing any
administration job derailed when Addington, who had come to see him as
a turncoat on national-security issues, moved to block him from
promotion, with Cheney's blessing; Philbin, who declined to comment,
was planning a move into the private sector. Levin, whose battles with
the White House took their toll on his political future as well, left
for private practice. (Levin declined to comment.) Comey was working
for a defense contractor.
But the national security/civil liberties pendulum was swinging.
Bellinger, who had become legal adviser to Secretary of State
Condoleezza Rice, began pushing, along with lawyers in the Pentagon, to
roll back unduly harsh interrogation and detention policies. After the
electronic eavesdropping program leaked in The New York Times in
December 2005, Sen. Arlen Specter announced that the Senate Judiciary
Committee would hold hearings that will start next week. The federal
courts have increasingly begun resisting absolutist assertions of
executive authority in the war on terror. After Cheney's chief of
staff, Scooter Libby, pleaded not guilty to perjury charges in the
Plame leak case, Addington took Libby's place. He is still a force to
be reckoned with in the councils of power. And he still has the ear of
the president and vice president; last week Bush was out vigorously
defending warrantless eavesdropping. But, thanks to a few quietly
determined lawyers, a healthy debate has at last begun.
__________
H.Res. 819, Requesting the President and directing the Attorney General
to submit to the House of Representatives all documents in the
possesion of the President and the Attorney General relating to
requests made by the National Security Agency and other Federal
agencies to telephone service providers requesting access to telephone
communications records of persons in the United States and
communications originating and terminating within the United States
without a warrant
.
