S. Hrg. 110-882
FISA AMENDMENTS: HOW TO PROTECT AMERICANS' SECURITY AND PRIVACY AND
PRESERVE THE RULE OF LAW AND GOVERNMENT ACCOUNTABILITY
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 31, 2007
__________
Serial No. J-110-59
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 114
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 126
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Black, Edward, President & CEO, Computer & Communications
Industry Association, Washington, D.C.......................... 45
Halperin, Morton H., Director of U.S. Advocacy, Open Society
Institute, Washington, D.C..................................... 49
Philbin, Patrick F., Partner, Kirkland & Ellis, Washington, D.C.. 47
Wainstein, Kenneth L., Assistant Attorney General, National
Security Division, U.S. Department of Justice.................. 6
QUESTIONS AND ANSWERS
Responses of Edward Black to questions submitted by Senator
Brownback...................................................... 56
Responses of Morton Halperin to questions submitted by Senator
Brownback...................................................... 59
Responses of Patrick Philbin to questions submitted by Senator
Brownback...................................................... 65
Responses of Kenneth Wainstein to questions submitted by Senators
Leahy, Feingold, Kennedy, and Kyl.............................. 69
SUBMISSIONS FOR THE RECORD
American Library Association and the Association of Research
Libraries, Washington, D.C., letter............................ 91
Black, Edward, President & CEO, Computer & Communications
Industry Association, Washington, D.C., statement.............. 94
Burgess, Ronald L., Jr., Lieutenant General, Office of the
Director, National Intelligence, Washington, D.C., letter...... 104
Dodd, Hon. Christopher J., a U.S. Senator from the State of
Connecticut, statement and letter.............................. 108
Department of Justice, John D. Ashcroft, Jack Goldsmith, James B.
Comey and Patrick F. Philbin, Washington, D.C., letter......... 112
Halperin, Morton H., Director of U.S. Advocacy, Open Society
Institute, Washington, D.C., statement......................... 115
Philbin, Patrick F., Partner, Kirkland & Ellis, Washington, D.C.,
statement...................................................... 128
Sorrell, William H., Vermont Attorney General, G. Steven Rowe,
Maine Attorney General, Richard Bluenthal, Connecticut Attorney
General, Anne Milgram, New Jersey Attorney General, and Robert
M. Clayton, III, Commissioner, Missouri Public Service
Commission, letter............................................. 139
Wainstein, Kenneth L., Assistant Attorney General, National
Security Division, U.S. Department of Justice, statement....... 143
Wall Street Journal, Benjamin Civiletti, Dick Thornburgh and
William Webster, October 31, 2007, article..................... 164
FISA AMENDMENTS: HOW TO PROTECT AMERICANS' SECURITY AND PRIVACY AND
PRESERVE THE RULE OF LAW AND GOVERNMENT ACCOUNTABILITY
----------
WEDNESDAY, OCTOBER 31, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Feinstein, Feingold, Durbin, Cardin,
Whitehouse, Specter, Hatch, Kyl, Sessions, Graham, Cornyn,
Brownback, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The Foreign Intelligence Surveillance Act,
or FISA, is intended to protect both our national security,
but, also, the privacy and civil liberties of Americans.
Changes to that law have to be considered carefully and
openly. They can't be eviscerated in secret administration
interpretations or compromise through either fear or
intimidation.
The so-called ``Protect America Act,'' passed just before
the summer recess, was an example of the worst way possible to
amend FISA. It was hurriedly passed under intense partisan
pressure from the administration and provides sweeping new
powers to the government to engage in surveillance without
warrants of international calls to and from the United States
involving Americans.
It provided no meaningful protection for the privacy and
civil liberties of the Americans who are on those calls.
Now, this Act will expire next year. So this is the
committee's second hearing to inform our consideration of
possible legislation to take the place of that flawed Act.
Of course, we have to accommodate legitimate national
security concerns and the need for flexibility and surveillance
of overseas targets, but Congress should do that in a way that
protects the civil liberties of Americans.
I commend the House committee and I commend the Senate
Select Committee on Intelligence for seeking to incorporate the
better ideas from our work this summer into the current
legislative proposals.
The House of Representatives is considering the RESTORE
Act, which appears to take a fair and balanced approach,
allowing flexibility for the intelligence community, while
providing oversight and protection for Americans' privacy.
The Senate Select Committee on Intelligence has also
reported a bill that makes improvements to the current
temporary law. Increasing the role of the FISA Court and
oversight by the Inspector General and the Congress are matters
we should have incorporated this summer.
At the outset, I should acknowledge the grave concern I
have with one aspect of S. 2248. It seems to grant immunity or,
as Senator Dodd called it, ``amnesty'', for telecommunications
carriers for warrantless surveillance activities from 2001
through this summer. Those seem to be, on the face of them, at
least, contrary to FISA and in violation of the privacy rights
of Americans.
Before even considering such a proposal, as we said at the
Mukasey hearing, a matter that will be before our committee, I
think, next Tuesday, Senator Specter and I have always been
clear with the administration that we would need the legal
justifications, authorizations and other documents to show the
basis for the action of the government and the carriers.
And since the existence of the President's secret
wiretapping program became public in December 2005, this
committee sought to have relevant information through oral and
written requests and by conducting oversight hearings.
After our repeated requests did not yield information the
committee requested, we authorized and issued subpoenas for
documents related to the legal justification for the
President's program.
Finally, this week, the administration, belatedly,
responded. Senators on the committee and designated staff have
begun to receive access to legal opinions and documents
concerning authorization and reauthorization of the program.
It's a significant step and it was long overdue.
I insisted that all members of the committee have access,
Republicans and Democrats alike, and that was agreed to in a
meeting yesterday, and I am considering carefully what we're
learning from these materials. The Congress should be careful
not to provide an incentive for future unlawful corporate
activity by giving the impression that corporations violate the
law and disregard the rights of Americans. They'll be given an
after-the-fact free pass.
If Americans' privacy is to mean anything and if the rule
of law is to be respected, I think that would be a wrong
result. A retroactive grant of immunity, or amnesty, or
preemption of State regulators does more than let the carriers
off the hook.
Immunity is designed to shield this administration from any
accountability for conducting surveillance outside the law. It
would make it impossible for Americans whose privacy has been
violated illegally to seek meaningful redress.
Lawsuits would be dismissed as a result of such a grant of
immunity, and perhaps as the only avenue that exists for an
outside review of the government's program and honest
assessment of its legal arguments, especially as the Congress
has, for years, been stonewalled on this program. That kind of
assessment is critical if our government is to be held
accountable.
One of my chief inquiries before deciding to support any
legislation on the subject is whether it's going to bring about
government accountability. Anyone who proposes letting the
telecommunications carriers off the hook or preempting State
authorities or giving the type of immunity or amnesty has a
responsibility to propose a manner to test the legality of the
government's program and decide whether it did harm to the
rights of Americans.
Safeguarding the new powers we are giving to our government
is far more than just an academic exercise. FISA law itself is
a testament to the fact that unchecked government power leads
to abuse.
The FISA was enacted in the wake of earlier scandals, when
the rights and privacy of Americans were trampled because
nobody was watching.
We in the Senate, and this committee especially, have a
solemn responsibility to 300 million of our fellow citizens
because the American people's rights and freedom and privacy
can be easily lost, but once lost, they're very difficult to
win back.
So I look forward to the testimony of our witnesses. I
appreciate them being here.
I will yield to Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I am glad to see
that we have come a long way in the last 18 months since
legislation was introduced in mid-2006 to bring the terrorist
surveillance program under the FISA court, and we have some
very important considerations to protect U.S. persons, to have
the FISA court review the procedures and to handle minimization
in an appropriate way.
With respect to the request for retroactive release of
liability, I have great reluctance. Part of that stems from the
secrecy that the government has interposed when we were seeking
subpoenas last year for the telephone companies. We were
thwarted by action of the Vice President in contacting
Republican members, without notifying the Chairman, and, as I
see the situation, I think the telephone companies do have a
strong, equitable case, but my inclination is that they ought
to get indemnification, if the court sought not to be closed.
I doubt very much the cases will be proved, but if
plaintiffs can prove them I think they ought to have their day
in court. And it is costly, but that's part of the cost of the
war on terrorism.
Finally, yesterday, we had a closed-door briefing on what
is happening, and I believe we need more briefings. The
government has been reluctant to follow the statute on
informing the Intelligence Committee about FISA until they
needed support for the confirmation of General Hayden as
Director of the CIA. And the session we had yesterday was an
important one and I think we need more information from the
administration.
The Chairman has referred to the pendency of the nomination
of Judge Mukasey to be Attorney General and that is a matter
which covers the issues which are before us now, or a first
cousin, at a very minimum.
And it is my hope, Mr. Chairman, that we would be able to
resolve the issues on Judge Mukasey sooner rather than later,
and I know that's your inclination, as well. You had wanted to
bring the matter to a determination by the committee early.
I think it may be advisable to have a closed-door session,
where we talk about water-boarding and we talk about torture
and we talk about those techniques. Earlier this week, in the
wake of the issue on water-boarding, I had an extensive
briefing by General Hayden. There are people who overlap on the
Intelligence Committee with the Judiciary Committee, who know
about the details, and I believe it is a matter that the full
committee ought to be informed about.
I think that the extensive letter which Judge Mukasey has
submitted goes about as far as he can go. He has repudiated
water-boarding, he has rejected it, but he has stopped short of
making a determination of legality. And let's face the facts.
The facts are that an expression of an opinion by Judge Mukasey
prior to becoming Attorney General would put a lot of people at
risk for what has happened.
Now, they may be at risk regardless of what Judge Mukasey
says or what the next Attorney General says. And last week,
former Secretary of Defense Rumsfeld was in France and there
was an effort made to initiate a prosecution against him, and
extraterritorial jurisdiction is being asserted by many
countries under the Doctrine of Crimes Against Humanity.
Ordinarily, a prosecution can be brought only where the act
occurred, but what Judge Mukasey would say on that subject has
repercussions in that direction.
The standard has been articulated of whether it shocks the
conscience under the Rochin decision, and that depends upon a
totality of circumstances. It depends on who is the individual,
what access the individual has to information, how important
the threat is, what is the likelihood of getting information
which would be critical in saving lives.
We all dodge around the so-called ``ticking bomb'' case.
Nobody wants to articulate a principle if there are any
exceptions to torture, and it is probably advisable not to be
explicit in that situation because you may make exceptions
which will be broadened; as the expression goes, you can
``drive a truck through.''
But we do know that the Department of Justice is in dire
straits. If there's one thing that this committee, and perhaps
the entire Senate, is unanimous on, it's that the Department of
Justice is dysfunctional.
I think we need extensive assurances. But as I carefully
read Judge Mukasey's letter, I don't know how much more he
could say than what he has said, considering the exposure to
people in collateral circumstances and considering the
impossibility of predicting what may be faced with respect to a
future potential danger if the so-called ``ticking bomb''
hypothetical were to reach fruition.
But what I would like to see is us, Mr. Chairman, go into a
closed session, like we had yesterday. I thought it was very
fruitful when we were behind closed doors and could talk more
openly about the subject matter of what the telephone companies
have been doing and to share information from those who know
more about the interrogation techniques and the water-boarding
than many members of this committee know.
The Intelligence Committee is privy to that, and they
should be, but so should this committee, when we have to make a
measurement and make a decision about the adequacy of what
Judge Mukasey has said on a subject which could defeat his
confirmation.
No doubt, the confirmation is at risk at this moment
because he has not answered the question categorically, and I
think we need to have a very frank discussion, with more facts
available, and I believe that can only be done in a closed-door
session.
I would hope we might do that early next week. Hopefully,
we could get Judge Mukasey on the agenda for next week and
either fish or cut bait on this important matter.
Chairman Leahy. As I said, Judge Mukasey will be on the
agenda on Tuesday, but I think there are a whole lot of--and
the reason I'm doing it Tuesday and not Thursday is because--
and, of course, everybody's rights are protected under that--
there are a whole lot of other issues that he responded to late
last night involving, among other things, executive authority,
his views on the ability of the executive to override laws
passed by Congress, his views on the executive being able to
preempt congressional actions on contempt citations and things
like that that others want to consider.
So it's not just the water-boarding issue. Obviously, many
of us felt that the United States, which would roundly and
universally condemn the water-boarding of an American held by
any other country, many of us had felt that the Attorney
General nominee should do the same thing.
It would put us back just to think, without even taking
current times, to the old Soviet Union days. If the then-Soviet
Union had picked up an American, water-boarded that American,
you'd have 535 Members of the Congress, House and Senate, who
would vote for a resolution condemning that, and whoever was
present, Democratic or Republican, would have condemned it.
That is one of the concerns I hear expressed by Americans.
But let's not go into debate on that. We will have plenty of
time to debate this issue. That's why I'm setting aside a
special time just for this matter.
We have before us Kenneth Wainstein, who served as the
First Assistant Attorney General for National Security since
September 2006. I'm sure he thinks that time has gone by so
rapidly.
Prior to this appointment, he has held various positions in
the Justice Department, including as the United States Attorney
for the District of Columbia, where we first met. When I say
that, I hasten to add, not because I or any member of this
committee was before him in that capacity. He also served as
chief of staff to the Director of the FBI, where we also had
dealings.
Mr. Wainstein, would you please stand and raise your right
hand?
[Whereupon, the witness was duly sworn.]
Chairman Leahy. Of course, your full statement will be made
part of the record, but, please, go ahead.
STATEMENT OF KENNETH L. WAINSTEIN, ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Wainstein. Thank you, sir. Chairman Leahy, Ranking
Member Specter, members of the committee, I want to thank you
all for this opportunity to testify before you on this
important matter. I'm proud to be here to represent the
Department of Justice and to discuss our views on this very
important issue with you.
I'd like to take a few minutes just to discuss three
specific points. I'd like to explain, first, why it is I
believe that Congress should permanently legislate the core
provisions of the Protect America Act; second, how it is that
we've gone about implementing the authority in the Protect
America Act with significant oversight mechanisms and
congressional reporting; and, third, I'd like to give you our
preliminary views on the thoughtful bipartisan bill that was
reported out of the Senate Intelligence Committee 2 weeks ago.
Before I do that, I'd like to express our appreciation for
the attention that Congress has given to this important issue.
Congress has held numerous hearings and briefings on the issue
over the past year or so and that process has produced the
Protect America Act, which was a very significant step forward
for national security, and in the Senate, it culminated in a
bipartisan bill referred to this committee, S. 2248, which was
voted out on a strong 13-2 vote.
We applaud Congress for its initiative on this issue and
its willingness to consult with us as it moves forward on FISA
modernization.
Let me turn to why I believe that the core provisions of
the Protect America Act need to be made permanent.
The government's surveillance activities are a critical, if
not the most critical part, of our investigative effort against
international terrorists and other national security threats.
By intercepting these communications, we get an insight into
their capabilities, their plans, and the extent of their
networks.
Before the Protect America Act, however, our surveillance
capabilities were significantly impaired by the outdated legal
framework in the FISA statute. FISA established a regime of
court review for our foreign intelligence surveillance
activities, but not for all such activities.
The court review process that Congress designed applied
primarily to surveillance activities within the United States,
where privacy interests are the most pronounced, and not to
overseas surveillance against foreign targets, where cognizable
privacy interests are minimal or nonexistent.
While this construct worked pretty well at first, with the
vast changes in telecommunications in the past 29 years, a good
number of our surveillances that were originally not intended
to fall within FISA became subject to FISA, those which are
targeted outside the U.S., which required us to go to court to
seek authorization and effectively conferred quasi-
constitutional protections on terrorist suspects and other
national security threats who are overseas.
Over that same period, we were facing an increasing threat
from Al Qaeda and other international terrorists and it was the
combination of these two factors, the increasing burden of FISA
and the increasing threat, that brought us to the point where
we needed to update FISA.
In April of this year, we submitted to Congress a
comprehensive proposal to modernize FISA. As the summer
progressed, Congress recognized the immediate need to address
the rising threat and passed the Protect America Act, which
clarified that overseas surveillances are not subject to FISA
Court review. And within days, we implemented that new
authority and the DNI has announced that we've filled the
intelligence gaps that were caused by FISA's outdated
provisions.
We've recognized, from the very moment that the Protect
America Act was passed, that Congress would reauthorize this
authority only if we could demonstrate to you and to the
American public that we can, and will, exercise this authority
responsibly and conscientiously.
To that end, we imposed oversight procedures upon ourselves
that are well beyond those required in the statute and we
committed to congressional reporting that's well beyond that
required in the statute, and in the process we've established a
track record of responsible use of the Protect America Act, a
track record that provides solid grounds for Congress to
permanently reauthorize it.
Against that backdrop, the Senate Intelligence Committee
recently voted out S. 2248. And we're still reviewing the bill,
but we believe that it's a balanced bill that includes many
sound provisions. It would allow our intelligence professionals
to collect foreign intelligence against targets located
overseas without obtaining prior court approval, and it also
provides retroactive immunity to electronic communications
service providers who assisted the government in the aftermath
of 9/11.
We believe this immunity provision is necessary, both as a
matter of fundamental fairness and as a way of ensuring that
providers will continue to provide cooperation to our
surveillance efforts.
That bill also remedies the possible over-breadth concerns
that some had regarding the Protect America Act, and it
includes significant oversight and reporting mechanisms.
We do, however, have concerns about certain provisions in
the bill; in particular, the sunset provision and the provision
that would extend the role of the FISA Court, for the first
time, outside our borders by requiring a court order when we
surveil a U.S. person who is acting as an agent of a foreign
power outside the U.S.
However, we look forward to working with this committee and
Congress to address those concerns and to seize this historic
opportunity to achieve lasting modernization of FISA that will
improve our ability to protect both our country and our civil
liberties.
Thank you for the opportunity to testify, and I look
forward to answering your questions.
Chairman Leahy. Well, thank you for your statement.
[The prepared statement of Mr. Wainstein appears as a
submission for the record.]
Chairman Leahy. When you deal with something like this,
it's very difficult to be sure what parts we're dealing with in
open session, but the Senate Intelligence Committee, in their
report on their legislation, said that the government provided
letters to electronic communication providers at regular
intervals between late 2001 and early 2007 to justify the
existence in this program of warrantless wiretapping.
All these letters stated the activity has been authorized
by the President. All but one stated the activities had been
deemed lawful by the Attorney General.
So is it the position now of the government that these
letters were certifications that made it legal for the
companies to assist the government?
Mr. Wainstein. Those letters were the assurances that were
provided to the companies that this was a program directed or
authorized by the President and that they were legal, and if
you look at the criteria in the retroactive immunity provision
in the Senate Intelligence bill, those criteria are satisfied.
Chairman Leahy. If they said that this would make it legal,
why is it necessary to provide immunity? Wouldn't it be just
better, maintaining faith in government, to let our judicial
system make that determination?
I mean, the government has already told the carriers that
this was legal. Why do we need to do further? Shouldn't the
courts be allowed now to say whether the government was right
in saying that?
Mr. Wainstein. Well, I understand the sentiment that we
should be allowed to go--people who feel like they are
aggrieved should be allowed to go into court and, as a standard
matter, that makes sense.
The problem here is that, sort of as I alluded to earlier,
there's a basic fundamental matter of fairness that the
government, at the highest levels, in the aftermath of the
worst attack upon the United States, at least since Pearl
Harbor, went to these providers, who are the only ones who can
provide the assistance for critical communications intelligence
work--went to them, said, ``We need this work. It's lawful.
It's been deemed lawful at the highest levels of the American
government and we need that assistance.''
Chairman Leahy. I accept that. But so why shouldn't that be
enough? Why do you have to pass further legislation?
If you feel secure in what you did, why ask for further
legislation? Why not let the courts just deal with the
certification made by the President that this was legal?
Mr. Wainstein. Well, we feel that it's unfair to--
Chairman Leahy. Unless you're not comfortable with having
made that certification.
Mr. Wainstein. No. And I don't believe the concern is
airing out what the government did or didn't do. The concern is
airing out what the companies did and putting them through the
cost, litigation, the exposure, the difficulty of litigation,
when they were really just doing what they did to protect the
country.
If there are to be lawsuits, they should be against the
government. The problem with any lawsuits against the companies
is that it's unavoidable that very sensitive classified
information is going to be released, and we've seen this
already in this litigation.
Chairman Leahy. If you make a blanket assertion of state
secrets, then you do have difficulty. But if you're just going
to use the specific classified information needed, that's done
by courts all the time. The classified information is looked at
in camera.
Why couldn't that be done here?
Mr. Wainstein. That's right, but in my experience, the
classified information that's subject--
Chairman Leahy. You had that as U.S. Attorney.
Mr. Wainstein. Yes. Yes. And there is a standard--there's
CIPA, the statute that allows the government to use classified
information to bring a prosecution that implicates classified
information and insulate from unwarranted disclosure.
The problem is that the whole cause of action here, the
whole sort of mode of conduct being challenged is a highly
classified program and our adversaries--our adversaries,
they're not ignorant. They know that this is going on and they
know to watch what's happening in the news, because they want
to get tips as to how it is we're trying to surveille them, and
the adversaries aren't just terrorists in caves. They're also
potentially foreign services that are pretty sophisticated. So
every little nugget of information that comes out in the course
of these litigations helps our enemies.
In addition, I would say you've got to also keep in mind--
Chairman Leahy. So should we be prosecuting--if that's the
case, be prosecuting the New York Times and others for having
printed all this? I mean, they gave the information.
Actually, Congress found out about the things that were
supposed to have been reported to Congress and never was. We
read it on the front page of the New York Times.
Mr. Wainstein. No. I'm not advocating prosecutions--
Chairman Leahy. I didn't think so.
Mr. Wainstein.--in that realm. What I'm saying, though, is
that there are serious concerns on the part of--
Chairman Leahy. In my experience, I've only had one
government official recommend or say they wanted to investigate
the New York Times and prosecute them, and that person is no
longer alive.
Go ahead.
Mr. Wainstein. Also, I'd direct your attention to the fact
that these providers--I can't go into exactly which providers
they were--but you could imagine that these are companies that
might well have personnel and facilities around the world and
they've got a very serious concern that if they get identified,
intentionally or unintentionally, through litigation, those
facilities, those personnel might well be subject to risk,
because they have been identified as assisting us in our
efforts against terrorists.
Chairman Leahy. For those who think that there should be
some accountability on the part of our government, and
obviously the government did not want to have that
accountability, they did not go to the people in even the
Congress, where there may be a check-and-balance, acted totally
outside of any kind of accountability, until somebody within
your administration leaked all this to the press.
Isn't there some way--how do you find a way to assess the
legality and appropriateness of this warrantless wiretapping
program?
If you say we can't have court cases, we've got to have
immunization, how do you assess this?
Mr. Wainstein. Well, I think that if there are to be
lawsuits--I mean, the concern people have here is with the
legality of the program and that legality determination was
made by the government.
So if people have a concern about it, it should be--any
litigation should be directed at the government.
Chairman Leahy. Okay. But then you have a catch-22. The
government says, ``Ah, state secrets.''
Mr. Wainstein. Right, which we would say in the context of
litigation against the carriers, as well, which is--
Chairman Leahy. But you're going to say it against the
government. So there really is no way to find the government
accountable.
If we give blanket amnesty to the companies, then you're
not going to be able to sue the government. They're going to
provide their own amnesty by saying ``state secrets''.
Mr. Wainstein. And we're in that position right now. No
matter whether the litigation is directed at the companies or
at the government, state secrets can be interposed.
Keep in mind, there are numerous--
Chairman Leahy. Why? Why can't they just go to classified
information, take it in camera?
Mr. Wainstein. Well, we have to demonstrate that--I mean,
we have to go and demonstrate that state secrets are going to
be implicated here, that the litigation can't go forward
without divulging state secrets, and we invoke the doctrine.
But keep in mind, if I may, Mr. Chairman, there are many
investigations going on right now about the propriety of what
was done or not done under the terrorist surveillance program.
So in terms of accountability, if there is wrongdoing, that
wrongdoing is being ferreted out in ways, very traditional
ways, other than litigation.
Chairman Leahy. I'm not sure of that, because it seems that
you're putting up brick walls everywhere somebody might look at
it.
Let me ask you one, and my final, question. The House is
considering the RESTORE Act. They have a provision calling for
the Department of Justice Inspector General to audit all
government surveillance programs that occurred outside of FISA
in the years following 9/11.
Now, they weren't audited. Even if we were to grant
retroactive immunity to the telephone companies, do you object
to Congress providing for such an audit in the bill that might
go to the President?
Mr. Wainstein. As I recall, the RESTORE Act provides or
directs the Department of Justice Inspector General to do
oversight--ironically, sort of oversight of intelligence
community agencies--and we did have some concern about that,
just because that's a little bit outside the DOJ/IG's lane;
very strong Inspector General, I grant you, but outside his
lane. So we had some concerns about that.
We also thought that injecting the whole terrorist
surveillance program issue into this was unfortunate, because
this is an effort, this being this legislation, is an effort to
get Congress and the executive branch on the same page so that
the constitutional issue of what can or can't be done under
executive authority is not there.
Constitutionally, there's no pressure on that issue. So we
think it's a better approach to say, okay, let's leave that
aside in terms of whether the TSP was within the constitutional
authority of the President or not, legal or not, and just focus
on how we're going to fix FISA for the American people.
Chairman Leahy. Maybe the difficulty is it seems so
unprecedented for the administration to say they actually want
to be on the same page with Congress--this administration
anyway.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Mr. Wainstein, let's begin by discussing the relative role
of the courts in protecting civil liberties and what it would
mean to grant retroactive release of liability.
In the long history of this country, the courts have done a
much better job in protecting civil liberties than has the
Congress, from an overreaching executive branch, and we have
seen, in this administration, extension of executive authority.
Now, in many ways it is necessary to protect America, and
when the administration came to the Congress and asked for a
Patriot Act, this committee took the lead in providing a
Patriot Act with expanded executive authority for
investigations to fight terrorism.
We, at the same time, imposed some limitations on
oversight, negotiated with the administration, and then we
found a signing statement which reserved the President's rights
under Article 2, Commander in Chief, not to pay attention to
the negotiated limitations.
And if we are to close the courthouse door to some 40
litigants who are now claiming that their privacy has been
invaded, it seems to me we are undercutting a major avenue of
redress.
If, at this late date, the Congress bails out whatever was
done before and we can't even discuss what has been done, that
is just an open invitation for this kind of conduct in the
future.
Why not provide for indemnification? I believe the
telephone companies have a very strong equitable case in saying
that they were good citizens in responding to what the
government ordered or requested and that the telephone
companies shouldn't have to weigh the importance to national
security.
But isn't the cost of those lawsuits part of our overall
battle against terrorism, and isn't it infinitesimal cost, and
isn't it likely that these lawsuits are not going to be
successful?
You find the Federal Government interposing the Doctrine of
State Secrets very broadly, trying to stop reviews under the
terrorist surveillance program in the San Francisco Federal
Court, or stopping litigants who have claimed torture on
rendition can't go to court, can't have a hearing, because of
the State Secrets Doctrine.
So it's a two-part question. Number one, why not make it a
matter of indemnification, and isn't such indemnification
really likely to cost the government very little, if anything,
because these suits are destined for failure?
Mr. Wainstein. I guess I would go back, Senator Specter.
I'd go back to sort of the foundational issue for me, which is,
these were companies operating in good faith, on assurances
from the government. If there is fault here, it's fault in the
legal analysis and the decisions made by the government.
Senator Specter. I concede they're operating in good faith,
and if they're indemnified, they're not going to be harmed.
They're going to be held harmless.
So why not do that?
Mr. Wainstein. True. I think you're right. It may be, as a
legal matter, in terms of damages, they might be held harmless.
But indemnification just means that we would pay the bills at
the end of the process, but they'd have to go through the
process.
And keep in mind, there is a lot of damage inflicted on
these companies from having to go through the litigation, to be
subject to discovery.
Senator Specter. What do they have to go through when you
impose the State Secrets Doctrine? I can't even question you in
a Judiciary Committee hearing about what has gone on, because
it's a secret, and every time you impose the--virtually every
time you impose the State Secrets Doctrine, you win. Those
witnesses don't even have to appear. They're not going to be
deposed. There's no discovery. They're cutoff at the pass,
aren't they, really?
Mr. Wainstein. Well, there's no assurance that we're going
to prevail every time we interpose with the State Secrets
Doctrine and the litigation still has to get to that point.
And keep in mind that we're also dealing with an industry
that really has the access to the communications that we
absolutely need and it's critical that we maintain cooperation
with these companies.
If they find that they're constantly being pulled into
courts for assistance with the government--
Senator Specter. Have you suggested to them that you would
grant them indemnification?
When I've talked to the telephone companies and commented
about that, they seem to think that that would answer the
question.
Have you asked them?
Mr. Wainstein. I know there have been discussions about
various options--indemnification, substitution--but anything
else to keep them out, anything that keeps litigation going
also compromises secret information about sources and methods
that we have a very serious concern about.
If we don't prevail with state secrets, then there's no
guarantee that information is not going to get out. In fact,
even just the filing of lawsuits and the allegations made can
actually end up--allegations made in the initial pleadings can
end up compromising sensitive sources and methods.
Senator Specter. Oh, really? Allegations in a lawsuit for
people who are plaintiffs who don't have any inside
information?
Mr. Wainstein. Yes.
Senator Specter. If they know something, it must be in the
public domain.
Let me move to one other line of questions, and that is to
protect U.S. persons.
Admiral McConnell testified that there were 46 persons
abroad, U.S. persons under surveillance abroad.
Why not require a showing of probable cause? And, also, on
U.S. persons who are the recipients of calls from overseas? If
you have a call from overseas to another overseas point going
through a U.S. terminal, I can readily agree with your point
that that is not an involvement of a U.S. person.
But where a U.S. person is targeted abroad or when it is
determined that a U.S. person is being under surveillance from
a foreign call, why not require a statement of probable cause
and approval of a warrant by the Foreign Intelligence
Surveillance Corps?
Mr. Wainstein. Yes, sir. Good questions. Two separate
questions. In terms of the question of whether we should have
to go to the FISA Court to make a probable cause showing before
we surveille a U.S. person outside the United States, that
arose in the context of an amendment that was attached to the
Senate Intelligence bill that was reported.
Senator Specter. The Wyden amendment.
Mr. Wainstein. Right, the Wyden amendment. And that has
been an area of much debate back and forth. As you know, under
traditional procedures since 1981, FISA did not require that we
get a--in the statute itself in 1978, it did not require that
we get a court order for a U.S. person overseas because of that
person's U.S. person status.
Instead, what we had is an executive order that was passed
in 1981 that required that every time the government wants to
surveille a U.S. person overseas, the Attorney General, himself
or herself, personally, has to make a finding of probable cause
that that U.S. person is an agent of a foreign power.
That was challenged at least once in court and has been
upheld as reasonable under the Fourth Amendment. It has worked
quite well. We have minimization procedures that limit the
dissemination, use and retention of U.S. person information
that we get from those surveillances, and our argument is that
mechanism has protected American civil liberties quite well.
There are downsides to imposing that, as well, operational
downsides. For one, you're taking the FISA court and, for the
very first time, putting the FISA court into surveillances
targeted outside the United States.
The statute itself will be saying, for a person who's
outside the U.S., you still have to go to the FISA court, which
is a new extension of FISA court jurisdiction.
Operationally, it would also potentially bring the FISA
court into the realm of having to deal with foreign laws, for
instance, laws that might be in effect in the foreign countries
where we want to do the surveillance.
So there are some complicated operational matters, some
which I think are better left to be discussed in a classified
setting, that I think are implicated by requiring that all
overseas surveillances against U.S. persons have to go the FISA
court.
Senator Specter. Thank you, Mr. Wainstein. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you, Senator Specter.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Wainstein, welcome.
Mr. Wainstein. Good morning.
Senator Feinstein. I think there are two big issues in this
bill. One is the immunity provision. The other, in my view, is
the exclusivity provision of the bill.
Senators Snowe, Hagel, and I filed some additional views,
which I would like to urge you to read. And what we stated is
our very strong belief that we believe FISA should be the only
legal way of acquiring communications of people inside the
United States and U.S. persons outside of the United States in
certain circumstances for foreign intelligence purposes, and we
go ahead and elaborate on it.
Now, the language in this bill was an Intelligence
Committee compromise in the sense it was the best, certainly, I
could do at the time. I am not at all satisfied with it,
because it is not comprehensive and it does provide some
loopholes, and I think those loopholes, candidly, are
unacceptable.
It is my belief that the administration exceeded its
authority in moving ahead with the terrorist surveillance
program, and it is also my belief that we have ample history
going back that this has happened before in the same way that
led to the foundation of the bill before us, and, of course,
that was the Shamrock case in the 1970s.
Somehow we don't learn from our mistakes. I am very
concerned about the use of Presidential authority in this area.
The President has claimed the AUMF. I'm here to say that when
the AUMF was passed, there was no congressional intent that it
be used for this purpose. That was not discussed.
I was present at many of the meetings. There was no
discussion on allowing the AUMF to be allowed for Presidential
authority in this area. And I believe the initial part of the
terrorist surveillance program was, in fact, illegal.
So I want to strengthen the exclusivity provisions to
prevent any loopholes and to see that it is clear for the
future. That's the first point.
The second point is on the subject of immunity, and this is
where it becomes extraordinarily difficult for me, with my
belief that the administration proceeded illegally.
Nonetheless, I've read the letters sent to the companies.
I'm aware of the fact that assurances were made to the
companies by the executive branch of government. Those
assurances may well have been wrong, but, nonetheless, these
were the assurances that the companies were given. This
happened 3 weeks after 9/11. I understand the tenor within the
country.
The letter sent to us, dated October 29 and signed by
Attorney General Ashcroft, James Comey, Jack Goldsmith and
Patrick Philbin, makes this comment: ``When corporations are
asked to assist the intelligence community based on a program
authorized by the President himself and based on assurance that
the program has been determined to be lawful at the highest
levels of the executive branch, they should be able to rely on
those representations and accept the determinations of the
government as to the legality of their actions.''
I happen to agree with that. Then it goes on to say, ``The
common law has long recognized immunity for private citizens
who respond to a call for assistance from a public officer in
the course of his duty.''
But the question arises as to whether the situation can't
be better handled, because FISA has both a criminal and a civil
prohibition in it, and, therefore, I wonder how the
administration would feel about the capping of damages at a low
level.
And the problem with indemnification is, we score this bill
at $20-$30 billion, and that becomes a problem, I think, when
you say the taxpayers should pick this up. This isn't a mistake
made by the taxpayers. It's a mistake, I believe, made by the
administration.
So the question comes, what sense does it make to proceed
with an indemnification and a cap at a low level?
Mr. Wainstein. Thank you, Senator Feinstein. I'll take
those in reverse order.
I sort of answered that question, to some extent, to, I
believe, Senator Specter, in terms of whether indemnification
addresses all our concerns.
Obviously, if there is a cap, then it does address the
concern that the taxpayer might get hit with high damages. But
all those other concerns would still obtain. We'll still go
through litigation, to the extent that state secrets doesn't
short-circuit it. There's still the risk that classified,
sensitive information will be disclosed.
The providers themselves will go through potential
reputational damage. They'll go through the difficulty of
litigation, depositions, discovery and the like, all for having
done something which, as you said, was based on the assurances
from the highest levels of the government of the legality of
that program and they did so out of the patriotic sense that
they wanted to help protect the country against a second wave
of attacks after 9/11.
So all those other issues, I think, are still there, even
if you do cap the damages.
As to your first question about the terrorist surveillance
program and the--
Senator Feinstein. Exclusivity.
Mr. Wainstein [continuing.]--Question of the exclusivity
clause, I know there is an exclusivity clause that's in the
Senate Intelligence bill. I think it makes the point quite
clearly.
As I said earlier, I believe that the nice thing about that
legislation and this process is that we seem to be moving
toward a point where we are all on the same page, that there is
not going to be any need for the executive branch to go beyond
what FISA has required.
Senator Feinstein. That's not what this language does. It's
specifically crafted in order to get it in that would allow a
loophole or more than one loophole.
Mr. Wainstein. Well, it says that it is the exclusive
means, that the President, if he signs this legislation, is
agreeing to that.
We have operated in accordance with that since January of
this year. As you know, we went to the FISA Court. We took the
terrorist surveillance program and brought it under FISA court
orders on January 10 or 17 of this year.
So the terrorist surveillance program is no more. It is
under FISA court order, and I think that's an important thing
for us to have done prior to the time that we came to Congress
about this legislation because it shows that we are operating
within FISA, even within the constraints of old FISA.
And I believe that you will then see that if we have a
scheme which we can use much more easily to protect the nation,
there's going to be even less need for this President or future
Presidents to go outside of FISA.
And keep in mind, nobody can bind future Presidents as to
what the constitutional duty is one way or the other.
Senator Feinstein. My time is up and I want to be
respectful of the time.
I disagree with you about the exclusivity. I think this is
a subject for a classified session and I think that the
administration should be very candid with us as to what is in
exclusivity and what is out of exclusivity, and I'll leave it
at that.
Mr. Wainstein. If I may, Senator Feinstein. I appreciate
that and we would be very happy to talk to you in a classified
setting, because there are some operational concerns that we
only could air out in a classified setting about certain
exclusivity clauses that have been proposed.
Senator Feinstein. All right. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Normally, it would be Senator Hatch, but he's not here.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
I just want to start with--there was a comment made earlier
about the Department of Justice being dysfunctional, and I
would dispute that.
It is true, I think, that it's in desperate need of
leadership, which of course could be cured if the Attorney
General nominee were confirmed, but I think there are a lot of
good men and women at the Department who are doing their job
under difficult circumstances, and we should recognize that.
My first question, Mr. Wainstein, concerns the legal
authority for the foreign surveillance program and it is
whether you know of any case--the only case of which I am aware
that has spoken to the issue, and it's dicta, it's not a
holding, but the case has never been squarely presented as far
as I know, is a FISA case in 2002 titled ``In Re: Sealed
Cases.''
And this is the pronouncement of the court in that
circumstance: ``The Fourth Circuit, in the Truong case, as did
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. 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.''
Now, are you aware of that case?
Mr. Wainstein. Yes, sir.
Senator Kyl. Did I characterize it accurately, in your
view?
Mr. Wainstein. Yes, Senator. That's my understanding of the
case.
Senator Kyl. Do you know of any other case in which a court
has spoken to this question, which goes, of course, to Senator
Feinstein's point about exclusivity?
Mr. Wainstein. No. Actually, as you quoted from that case,
the courts that have addressed this issue have determined that
the President does have that authority and they've been
consistent in that.
Senator Kyl. Furthermore, in your testimony, on page four,
you talk about the historic surveillance that we have conducted
and the history of FISA, establishing a judicial review regime,
but not for all of our foreign surveillance.
You say only for certain of those that most substantially
implicated the privacy interests of the people of the United
States, which I think is accurate, and you point out that it
was not intended to apply to all overseas surveillance.
And you went on to note that the House report at the time,
the House Permanent Select Committee on Intelligence report,
1978--I would add that that was under Democratic control--
confirmed that this was the case and, quoting that report,
which explained that ``The committee has explored the
feasibility of broadening this legislation to apply overseas,
but has concluded that certain problems and unique
characteristics involved in overseas surveillance preclude the
simple extension of this bill to overseas surveillances,''
making the point that we have had for decades overseas
surveillance which has not required going to through any court
to obtain a warrant.
Is that correct?
Mr. Wainstein. Yes, under the wording of the statute--and,
of course, the problem is that--and what we're trying to remedy
here is the problem that has taken us away from the original
design of FISA, which is as you just described it, and, that
is, as I think we also explain in the statement, a function of
the evolution of the technology since 1978.
And the fact is the original FISA was designed--it was
actually--the terminology of the statute was based on the types
of technology that were going to be intercepted, wire or radio,
and that has changed dramatically, bringing in all these
communications within FISA that weren't intended to be within
FISA to begin with, primarily the ones outside the United
States.
Senator Kyl. Exactly. Now, there's also been some language
thrown, and I think we should be a little careful of throwing
around words like ``amnesty.'' Amnesty obviously refers to a
situation in which a crime was committed and that crime is
going to be forgiven.
Is that your understanding of the word ``amnesty? ''
Mr. Wainstein. More or less.
Senator Kyl. Do you know any allegation, or at least any
fair allegation, that any of these telecom companies committed
a crime for which they might need some kind of amnesty?
Mr. Wainstein. No, Senator Kyl, quite the opposite. My
sense is they were operating out of a sense of patriotic duty.
Senator Kyl. Well, that's my sense, too. And I wanted to
quote something from Judge Cardozo, because I think it applies
here, in a case called Babington v. Yellow Taxi Company.
He said, ``The rule that private citizens, acting in good
faith to assist law enforcement, are immune from suit ensures
that,'' and this is the case, the words of Justice Cardozo,
``the citizenry may be called upon to enforce the justice of
the state, not faintly and with lagging steps, but honestly and
bravely and with whatever implements and facilities are
convenient and at hand.''
Now, it seems to me that that captures the obligation and
responsibility that we expect of citizens who are in a unique
position to assist our government in a situation like this and
that we should be bending over backward to ensure that they are
protected in that assistance for the national good.
The differences between the suggestion of indemnification
and providing immunity, it seemed to me, are worth exploring,
and some of my colleagues have raised some of those questions
with you.
You have indicated that there are a variety of reasons why
it would still be difficult, if there is indemnification, to
protect American secrets and to protect the companies from all
of the exigencies of litigation that would occur prior to the
time that the suit were brought to a conclusion.
If the State Secrets Doctrine were not successful, would
these suits necessarily be brought to conclusion any time
before a final judgment for which then the government might be
responsible?
Mr. Wainstein. It would go forward after the State Secrets
Doctrine was--
Senator Kyl. So if that defense is not successful, they go
through the case. They have to testify. They have to bear the
expenses. They may be indemnified, but in addition to the
possibility that the secrets would be revealed, there would be
all of the difficulty of going through this litigation,
notwithstanding the fact that, at the end of the day, they
would be reimbursed for their trouble.
Mr. Wainstein. Absolutely. And I think not only is it
unfair to them and would they suffer reputational damage and
cost and expense and have to overcome the difficulties of
litigation, but, also, as I said earlier, we work on a
cooperative basis with these companies and we can't do it--we
cannot do communications intelligence without them. Unless we
nationalize the communications industry, we have to go through
them and we have to rely on their cooperation.
And sort of to go back to what you quoted from Justice
Cardozo, just like the police officer on the street, I was
trying to think of an analogy. If a cab driver drives by a bank
and a police officer comes running out, bells are going off,
alarms going, he says, ``Go after that speeding car,'' and
jumps in the front seat, we don't want the cab driver to sit
there and say, ``Well, let's think through all the different
possibilities. Maybe you're not really a police officer. Maybe
that's not the bank robber. Maybe you're actually in a fight
with somebody out of a bar next door to that bank,'' all these
other things.
You want a person or a company who perceives apparent
authority on the part of law enforcement to act. And if these
companies are subject to liability, they're going to have a
disincentive to act in the future and they're going to
challenge any requests that we make to them, litigate to the
nth degree, because they think that that's the way they're
protecting the rights of their shareholders.
We don't want to be in that situation because that will
really detrimentally impact our operations.
Senator Kyl. Let me just ask you one final question
regarding the so-called Wyden amendment.
It is not limited to citizens, is it? In other words, it
appears to cover ``U.S. persons,'' which would also include
U.S. green card holders, which, therefore, could mean any
number of people who may live abroad, but have a U.S. green
card. Is that correct?
Mr. Wainstein. Yes, sir.
Chairman Leahy. I just want to make sure I fully
understand, whether we call it amnesty, immunity or
indemnification.
Prior to this being made public in the press, apparently
from somebody within the administration, there was only this
Presidential directive. After it was made public, the
administration then went to the FISA court. Is that correct?
Mr. Wainstein. Mr. Chairman, we went to the FISA court--
well, we obtained FISA court authority for the TSP, the
surveillances that were done under the TSP in January of this
year. That was after a long process.
Chairman Leahy. After it became public. And there's no
question in your mind, if a telephone company has a court
order, that clears them. They're totally--there's no liability
on the part of a telephone company response or anybody
responds, a bank responds to a court order to give over a bank
record, a telephone company responds to a court order to give
telephone records.
No suits can go against them because they responded to that
court order. Is that correct?
Mr. Wainstein. Yes, sir, that's a defense. If I could just
clarify one thing. I believe we've said publicly that we were
actually engaged in the process leading to the FISA court
orders prior to the public disclosure of the program. I believe
that we've said that.
I just wanted to clarify that as to when we went to the
FISA court. I wasn't there at the time.
Chairman Leahy. I actually have the chronology in mind, but
I heard that in a classified session so I'm being very careful
not to go into it.
Mr. Wainstein. Thank you, sir.
Chairman Leahy. Senator Feingold was one of our crossover
members from Judiciary and Intelligence.
Senator Feingold. Thank you, Mr. Chairman.
First, Mr. Chairman, the role of this committee, as you
well know, is so important on this issue and I'm so glad you're
having this hearing.
I am a member of the Intelligence Committee, as well as the
Judiciary Committee. I've been following this issue for almost
2 years, since the day it was revealed in the New York Times,
and shortly thereafter I became a member of the Intelligence
Committee.
After a bit of a struggle, I had the opportunity to be read
into the program. My staff has also been read into the program.
I want this committee to know my view that the product of
the Intelligence Committee doesn't do the job. There can be as
much bipartisanship and collegiality as you can possibly have,
but the bill still is not adequate and the mere fact that it's
bipartisan, obviously, doesn't make it constitutional.
This process reminds me what happened with the Patriot Act
and the subsequent renewal of the Patriot Act. We had the rush
to judgment in the beginning, that was somewhat understandable
given the timeframe. But then, in my view, we failed to correct
the Patriot Act in significant areas, and three Federal courts
have struck down important provisions of the Patriot Act.
Mr. Chairman, we're heading in the same direction here if
this committee does not do its job and fix the errors that were
made in the Intelligence Committee.
Having said that, I want to get back into this issue of
executive power that both Senator Feinstein and Senator Kyl
have talked about.
Mr. Wainstein, right now, does the President have the
authority to authorize surveillance beyond what is permitted by
FISA, as amended by the Protect America Act?
Mr. Wainstein. Senator Feingold, that's obviously a
question with constitutional implications. What is the
constitutional allocation of authority to the executive branch
to defend and protect the country against external threats?
And the argument that I think was laid out in the white
paper that was issued by the Department of Justice back in the
aftermath of the disclosure of the TSP, that the President did
have certain inherent constitutional authority to conduct
electronic surveillance or communications surveillance to
protect the nation.
As I said earlier, though, I think that this legislation
obviates the need to actually engage in that issue.
Senator Feingold. I know that's the exchange you had with
Senator Feinstein. So let me just put it on the record.
If the bill passed by the Intelligence Committee became
law, would the President have authority to authorize
surveillance beyond what would be permitted by that bill?
Mr. Wainstein. Once again, Senator Feingold, it's not for
me to say, to either stake a claim to or to give up
constitutional authority to the President. It's not even this
President's--
Senator Feingold. What is your view?
Mr. Wainstein. I'd have to actually go back and take a good
hard look at all the constitutional underpinnings of that
issue. But I've read the positions on both sides. There are
good arguments both ways.
But there's clearly authority for the executive branch to
do warrantless surveillance and, as Senator Kyl has said, the
courts that have addressed this issue have uniformly found that
the President has that authority, including the 2002 opinion of
the FISA Court of Review.
So I think the law to date is pretty clear on that issue.
Senator Feingold. I take the opposite view. I think it's
clear under Justice Jackson's test, with regard to when
Congress has spoken, that the opposite conclusion is warranted.
But I think we're going to have to get a new President in order
to have a different view that is not so expansive and, I think,
dangerous with regard to executive power.
In the Intelligence Committee bill, the government is
required to inform the FISA court about its minimization
procedures. First, the government's minimization procedures are
provided to the court for approval after they've gone into
effect, and, second, the government has to provide the court
with its own assessment of its compliance with those
procedures.
But under the bill, what can the court do, Mr. Wainstein,
if it believes the government is not complying with its
minimization procedures, which the administration argues
provide such great protection for U.S. persons?
Mr. Wainstein. Well, Senator Feingold, you're focusing on
the question of what it is we have to do with our minimization
procedures vis-a-vis the FISA court.
The FISA court, under this bill, will review the
minimization procedures, make sure they're reasonable, make
sure they satisfy the statutory requirement for minimization
procedures.
It does not have them conducting ongoing compliance reviews
of those minimization procedures and I think there are reasons
for that. In the original FISA context, they do. So we have to
get individual orders when we get FISAs, under the original
FISA, for people in the United States and there are
minimization procedures that apply to that particular
surveillance, and the FISA Court does review compliance.
We provided--
Senator Feingold. This reminds me almost of a right without
a remedy. The court gets to review it, but has no power to do
anything about it. Is that what you're saying?
Mr. Wainstein. Well, the problem here is that, as you know,
this bill allows for programmatic sort of surveillances by
category and this would be a much more comprehensive compliance
review by the FISA court, making them much more operational
than they ever have been in the past.
Senator Feingold. Again, this involves a court that would
have the opportunity to review these minimization procedures,
and I hope my colleagues are hearing this, with no ability to
do anything about it, no ability to say to the administration,
``You screwed up and you've got to change this.''
This is in this intelligence bill that's being labeled as
an adequate control over the executive.
Mr. Wainstein. If I may, Senator Feingold.
Senator Feingold. Yes.
Mr. Wainstein. I see your point there and I think it is
worth mentioning, however, that there are any number of
oversight mechanisms in this bill and we're not opposing these.
We're not opposing--we've got a couple operational concerns
with one or two, just in terms of the feasibility, but by and
large, we're not.
And, in fact, if you look, and I mentioned this earlier, if
you look at the way we've conducted operations under the
Protect America Act, we have, as I said, imposed a lot of
oversight on ourselves and tried to be as completely
transparent as we can with Congress, so that Congress, if it
sees a flaw, can do something about it.
And we're continuing that approach here, because we
understand that that's the only we can retain these--
Senator Feingold. I appreciate the answer and hope my
colleagues heard it. They have imposed these rules on
themselves. We do not have internal rules. We do not have the
court having the ability to deal with these problems.
In September, I asked DNI McConnell whether the bulk
collection of all communications originating overseas,
including communications with people in the U.S., is authorized
by the PAA. He responded, ``It would be authorized if it were
physically possible to do it.''
Would this same wide-sweeping type of bulk collection of
all communications originating overseas, including those with
people in the U.S., be prohibited in any way by the Senate
Intelligence Committee bill?
Mr. Wainstein. Well, if you're referring to the idea that
we would just have a vacuum cleaner and soak up all overseas
communications, one problem there, of course, is that we can
only do this if there's a foreign intelligence purpose to it
and we're getting foreign intelligence information, and,
presumably, a vacuum cleaner approach like that would not be
selecting only those communications that have foreign
intelligence--
Senator Feingold. Would you have any objection to making it
clear that this type of extremely broad bulk collection is not
authorized by the bill? Would you be willing to support
language to that effect?
Mr. Wainstein. We'd have to take a look at the language,
obviously, to make sure it doesn't have unintended
consequences, limiting us in ways that we don't intend. But
we'd be happy to take a look at it.
Senator Feingold. My time is up, but I do hope you'll
consider that. Thank you.
Mr. Wainstein. Thank you, sir.
Chairman Leahy. Senator Sessions.
Senator Sessions. Mr. Wainstein--and I would just say to
Senator Feingold, you have been direct and honest about your
approach to it. The matter was considered in the Intelligence
Committee, but by a 13-2 vote, they concluded otherwise.
Congress does have oversight responsibility. It is our
responsibility to ask about these programs. We have the
ability, which we have done, to have the top officials that run
these programs testify before us and explain them in great
detail, ask questions, and we've had the opportunity to cut off
funding or prohibit these programs from going forward.
I would say, when we passed the Protect America Act to
extend this program, what this Congress did, was it heard the
complaints, it had an in-depth review of what the
administration was doing.
We found the critical need for the program. We studied the
constitutional objections that had been raised and we concluded
that it was legitimate, and we affirmed it and we approved it.
Isn't that fundamentally what's happened, Mr. Wainstein?
Mr. Wainstein. As far as I can tell you, yes, sir.
Senator Sessions. All right. So we have approved this
program, and we approved it because it was the right thing.
I just had a visit to the National Security Agency last
week and went into some detail and I came away even more
convinced than from the previous briefings I had had just how
critical this program is for our national security.
Mr. Wainstein, based on your observation and research, do
you consider this to be a critical program for our national
security and do you believe that we absolutely, for the
security of the American people, need to continue it or
something like it?
Mr. Wainstein. Absolutely, Senator Sessions. When we talk
about the program, the interception of signals or
communications intelligence is absolutely critical, and that is
how we learn what our adversaries are planning to do. We
capture their communications. We capture their conversations.
And while we'd be happy to talk to you in a classified
setting about actual case studies or case anecdotes to explain
how we've gotten critical information with the Protect America
Act, I can't talk about it here publicly, but it is an
absolutely critical piece of our operations.
And if you talk to the NSA and you see how quickly we are
able to implement the Protect America Act authority, they will
tell you how quickly those gaps that the DNI was talking about
prior to August 5, how those gaps closed just like that.
Senator Sessions. In fact, that's exactly what I heard last
week. And I have to emphasize to my colleagues, if you talk to
the people at NSA, you know they are very careful about what
they do. They self-restrict themselves. They know that people
can complain if they overreach.
They are not overreaching, I don't believe, and I'm proud
of what they're doing. It's saving lives, not just in the
United States, but it is saving lives of those men and women in
our military service that we have committed to harm's way, who
are at risk this very moment in places like Iraq and
Afghanistan and other places, and it's helping preserve their
safety and their lives, and it's constitutional, and we've
already said that. So, I think we should continue with this
program.
So now we're reduced, I think, to an argument over whether
we ought to allow people to sue the telephone or the
communications companies that have cooperated at the request of
the government to protect this country after 9/11.
And I don't think it's a right phrase, as I think as our
Chairman said, to say we are letting them off the hook. They
shouldn't be on the hook. They did what their country asked
them to do. They were told in writing that it was legal, were
they not, what they were doing?
Mr. Wainstein. Yes, sir. They were given assurances, the
same assurances that--
Senator Sessions. And I just don't think they ought to be
hauled into court, and the people filing this lawsuit using it
as a vehicle to discover everything they can discover about
some of the most top secret programs this country has. And that
does happen in these cases, does it not?
Mr. Wainstein. Absolutely. This is the most confidential
and classified sensitive information that we have in our
national security apparatus, and those are the details that get
disclosed during that litigation.
Senator Sessions. And I think one of our colleagues earlier
said, well, this may be the only way that--the only outside
review of this program.
Well, we're the ones that are supposed to review this
program, are we not, as representatives of the American people?
Would you agree with that?
Mr. Wainstein. Yes, sir. And there's quite a bit of
oversight from Congress. And, as I mentioned earlier, there are
a number of different investigations being carried on right now
by inspectors general and offices of professional
responsibility and the like, looking into the appropriateness
of the terrorist surveillance program.
Senator Sessions. And some private lawsuit out here against
companies for millions of dollars, filed by lawyers who could
be lawyers associated with groups associated with terrorism, is
not the way to give oversight to a program like this, I don't
think.
Would you agree with that?
Mr. Wainstein. I go to the fundamental point, Senator, that
these companies were operating at our request, upon our
assurance. And so if people have a problem with it, if there's
fault there, they should direct their concerns to the
government. The government should be the ones who are called to
answer and not the companies that were acting out of patriotic
duty.
Senator Sessions. Well, I'm also of the belief that--I
believe someone stated that the telecom companies would believe
that indemnification is sufficient.
My impression is they do not, because they're still subject
to the lawsuits. Do you have any information about that?
Mr. Wainstein. I don't have any direct information as to
what their position is, except I know that they much prefer
immunity, and that's certainly our position.
I believe, though, that they would see all the same
problems with indemnification that I have listed for your
colleagues.
Senator Sessions. Well, I am certain they would. It only
makes common sense. And I believe, in fact, they don't think
that's the best way, that the indemnification approach is best.
Mr. Chairman, I just offer, for the record, an op-ed in
today's Wall Street Journal, written by Benjamin Civiletti, a
former Attorney General under former President Jimmy Carter,
Dick Thornburgh, a former Attorney General under former
President Bush, and William Webster, former head of the FBI and
the CIA, that testify to the importance of this legislation and
they strongly support the view that these companies that have
cooperated should be protected from lawsuits.
They say the companies ``deserve targeted protection from
these suits'' and point out that dragging phone companies
through protracted litigation would not only be unfair, but it
would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be an
uncertainty or legal risk.
I would offer that for the record.
Chairman Leahy. Thank you. Without objection, it will be
part of the record.
[The article appears as a submission for the record.]
Chairman Leahy. I just want to make sure I fully
understand, from your testimony, following on a question by
Senator Sessions.
Has there been any suggestion by any Member of Congress, of
either party, that we should not be doing electronic
surveillance of people who may pose a threat to the United
States?
Mr. Wainstein. Not that I have heard, Chairman Leahy. In
fact, I think what we're seeing now--not in the course of this
debate. What we're seeing now is, I think, a fairly good
consensus in the American people and in Congress that we need
the tools to do it and we should not have to get a court order
if we're targeting persons outside the United States, with the
exception of--
Chairman Leahy. Because I just don't want--and I'm sure the
Senator from Alabama did not mean to leave the wrong impression
here, but I certainly don't want any impression being here
that--I've sat through hundreds of hours of briefings and
closed sessions and open sessions on this. I have yet to hear
any Senator or any House member, of either party, say they feel
that we should not be surveilling people who have positions
inimical the best interest of the United States.
Senator Sessions. Mr. Chairman, just to respond to that, I
would say that this administration has been under severe attack
for programs, including this program, severe political attack,
often from outside, sometimes within Congress, and by passing
the Protect America Act and by the vote of the Intelligence
Committee, this Congress has said they are doing legitimate
work and we affirm their work.
Chairman Leahy. I think this Congress, many people were
concerned that the White House was not following the law and
wanted them to follow the law.
I was concerned when the President of the United States
said FISA was a law that had been basically unchanged since the
1970's. Of course, it has been changed 30-some-odd times since
then.
And I think that if there had been criticism, it's simply
been that the United States, which stands for the rule of law,
ought to follow the law.
Mr. Wainstein. If I may, Mr. Chairman.
Senator Sessions. Well, I think we concluded that the
President is following the law. That's why we've affirmed the
program as it is presently being executed.
Chairman Leahy. Mr. Wainstein.
Mr. Wainstein. I just want to say that my answers related
to--when we were talking about the program, the idea of doing
foreign intelligence surveillance against persons overseas
without going to the FISA court first and that's been the area
of disagreement, at least that's what has been hashed out in
debates over the last month or two.
Chairman Leahy. Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman, and I particularly
thank you for clarifying the record, because every Member of
Congress wants to make sure that we gather the information we
need and we want to make sure it's done in a way that's
consistent with the civil liberties of the people in this
country and the constitutional protection.
Quite frankly, I think that by complying with that, the
collection of information will be more valuable to our national
security interests. So it's in our interest to do it for many
reasons.
I want to question you on a couple points that you
mentioned. You first talked about your concern about the sunset
that's included in the Senate bill and the House bill; the
Senate bill has a 6-year sunset, the House bill has a 2-year
sunset.
And you then talk about your cooperation with Congress,
making a lot information available to us. I somewhat question
whether we would have gotten the same level of interest by the
administration in supplying information to our committees if
there were no sunset included in the legislation, if we had a
permanent extension of the law.
And, secondly, I want you to comment on the fact, 6 years
from now, can you anticipate what technology is going to be? It
seems to me it's a good idea for us to be required to review
this statute, not only because of its sensitivity on the civil
liberties, but also on the fact that technology changes very
quickly and we need to make sure that we have this law reviewed
on a regular basis.
So why isn't a sunset good?
Mr. Wainstein. Thank you, Senator. That's a good question.
I've actually spoken quite a bit about the appropriateness or
inappropriateness of sunsets.
I'm not reflexively resistant to sunsets at all. I think
they actually have a very important place, and I think they had
an important place with the Protect America Act.
When Congress is in a position of dealing with an immediate
need in legislating, without maybe feeling like it has the time
to go through and check the record and deliberate and debate
completely and look at all the angles, then it makes sense to
have a sunset, just as we had in the Patriot Act, which was
passed, I believe, 6 weeks to the day after 9/11, with a huge,
large raft of new provisions.
Sunsets were put in place there to make sure that Congress
then had the time to go back and reevaluate things and make
sure they didn't miss anything and see how these tools are
being implemented.
Same thing with the Protect America Act. You all responded
to the need in the summer. You put a sunset in place, and I
think we're going through a very healthy process right here. I
think this is great.
Senator Cardin. Some of us think we need to continue that
process.
Mr. Wainstein. And I think that's why we're not resisting
the oversight--the very ample oversight--and congressional
reporting requirements in this bill.
My feeling, however, is that once you've had that debate,
go ahead and legislate. You don't need to put a sunset.
Congress can always re-legislate in FISA, and has many times
over the years.
Senator Cardin. It's sometimes more difficult than it may
seem, and when we're required to act, we act.
Mr. Wainstein. I understand that. But you've got to keep in
mind there's a downside to that, too, because whenever you
confer authorities, legal authorities on law enforcement and
the intelligence community, that starts a process, which is a
very in-depth process, of agencies drafting policies, putting
procedures in place, training people, and then when you have to
shift gears--
Senator Cardin. I think Congress has the responsibility and
I think it's helpful to us to have the sunsets in law.
Let me go to the U.S. Americans who are targeted overseas
and the amendment that was put on that you have concerns about.
I, quite frankly, don't understand the concern here. It's
my understanding there have been published reports of how few
people actually fall into this category, and it seems to me we
always want to balance the rights of individuals versus the
inconvenience or difficulty in complying with the probable
cause standards.
It seems to me, here, this is an easy one, that going and
getting a warrant should be the standard practice.
Mr. Wainstein. Yes, Senator. And we've heard that view from
a number of your colleagues.
I guess, keep in mind, as I explained earlier, there is a
process in place by which we--the Attorney General personally
made a probable cause finding for people overseas.
The FISA court did, on occasion, provide FISA court
authority for U.S. persons overseas, because of the way the
technology evolved since 1978.
Senator Cardin. But I am correct, there's just a few number
that fall into that category.
Mr. Wainstein. I can't go into the classified--
Senator Cardin. I thought there was some information that
had been released on that.
Mr. Wainstein. I think there's been some public discussion
about it, but I'll tell you, as I sit here right now, I'm not
sure what I'm authorized to say or not say.
Senator Cardin. The director of National Intelligence
evidently has said it and, it seems to me, if he's said it--
Mr. Wainstein. Right. Well, I think he has declassifying
authority that maybe I don't have.
Senator Cardin. Okay. Well, his number, I believe, was the
mid-50's, 55 or 56 people that actually were subject to this,
which is certainly not a huge burden to get that information.
And I think that's where you lose some credibility when you
have an issue that can be easily resolved and, yet, you try to
get the authority to avoid what seems to be core to American
values, and that is having cause to get a warrant against an
American.
I want to get to the immunity. I have 2 minutes left, and
this is a difficult subject and this is one that I think many
of us are wrestling to try to get right.
You used the Good Samaritan analogy, where someone is on
the scene of an accident and needs to respond quickly, and I
can understand that being used on September 11.
This program has been reauthorized for 5 years or 6 years.
It seems to me that this is difficult to use that analogy when
the telephone companies or servicers had plenty of chance to
review the circumstances and make independent judgment.
And I guess my point to you is, do you think the service
providers have any responsibility to the privacy of their
customers to make an independent judgment as to whether this
information was properly requested?
Mr. Wainstein. If I could just very briefly discuss the
U.S. person overseas issue, just because I don't want to leave
one thing hanging.
I understand your concern. There are operational concerns
that we have, especially about one aspect of that provision,
that we'll need to discuss in classified session.
Senator Cardin. You mentioned that earlier.
Mr. Wainstein. There are also some issues--there's no
emergency provision there. Also, keep in mind that in terms of
what is sort of the standard American approach, that
requirement is not in place on the criminal side, on the
criminal law enforcement side, either, so there is some
question there about what is sort of more traditional or not.
But I would like to followup with that, with you or anybody
else, in a classified setting.
Senator Cardin. Certainly.
Mr. Wainstein. In terms of the obligation of the carriers,
there are delineated legal obligations that carriers have.
Senator Cardin. They have pretty big attorney staffs, legal
staff. These are not unsophisticated companies.
Mr. Wainstein. Yes. But I don't know if you actually saw
the documents yesterday.
Senator Cardin. I have seen them.
Mr. Wainstein. The letters.
Senator Cardin. Yes, I have.
Mr. Wainstein. Some of the letters that were sent to the
carriers explaining--
Senator Cardin. And I don't know. If this is an
inappropriate question, I'm sure you'll mention that. It seems
to me that if I were the lawyer for the service providers, I
would have asked for indemnity.
These are sophisticated companies, so they can make
independent judgments. I understand the concern on September
11, but this has been going on for many years. I find it hard
to believe that large companies with big legal staffs never ask
for more protection or more information.
Mr. Wainstein. Well, I can say that as the bill out of the
Senate Intelligence Committee reflects, there are certain
common sense criteria you'd look at for them to have a suitable
reliance on the government in going forward and assisting the
government.
If you look at those documents--I can't get into the
classified nature of them--you'll see that those assurances are
there. I think they operated on a good faith basis, and I don't
know that we want the legal staffs of all these communications
providers putting us through the paces and litigating
everything.
As you know, under this legislation, as under the Protect
America Act, these carriers can challenge every one of the
directives we give them and really slow down our operations.
So I don't know that we want to encourage that. In fact, I
think we want to not encourage it by alleviating any
possibility of retroactive liability.
Senator Cardin. Thank you, Madam Chair.
Senator Feinstein [presiding]. Thank you, Senator.
Senator Cornyn is next up.
Senator Cornyn. Thank you, Madam Chairman.
Mr. Wainstein, the Protect America Act sunsets in February.
Is that correct?
Mr. Wainstein. I believe it's February 1st, sir.
Senator Cornyn. And that's the law that Congress passed
this Congress that said if it's two terrorists talking to each
other overseas, that we don't need to get a warrant to
intercept that information. Correct?
Mr. Wainstein. If we're targeting our surveillance at a
person overseas, we don't have to go to the FISA court before
doing that.
Senator Cornyn. And you're asking here today for a
permanent extension of that law which Congress has already
passed. Correct?
Mr. Wainstein. Yes, sir. Basically to bring it back in line
with what was the original intent of FISA back in 1978.
Senator Cornyn. Let me take this down to a particular
scenario or set of facts that I think will help us understand
what a burden the need for a warrant can be when it comes to
communications between terrorists overseas. On October the
16th, the New York Post reported a story involving some
soldiers who were in Iraq and were killed by Al Qaeda
operatives, four killed and three were then kidnapped,
including Alex Jiminez from Queens, and later, as a result of
the search to find the three kidnapped soldiers, one of my
constituents, Ryan Collins, 20 years old, of Vernon, Texas,
lost his life.
But the time line here I think is significant because, at
10 on May the 15th, after these three soldiers were kidnapped,
U.S. officials came across leads that show need to access to
signals communications, and the NSA, at 10:52, 52 minutes
later, notified the Department of Justice that, under existing
FISA law, a warrant was needed to eavesdrop because of
communications passed through United States infrastructure,
even though it was communications overseas between two foreign
nationals.
It then took till 12:53 p.m. for lawyers and intelligence
officials to begin to work to confirm the probable cause
necessary to identify the kidnappers as foreign insurgents, and
therefore a legitimate target of American surveillance. Then
almost 5 hours later, at 5:15 p.m., the lawyers were able to
file the paperwork necessary to request the emergency
surveillance.
Finally, at 7:18 p.m. that night, almost 10 hours later,
the Attorney General of the United States approved the
emergency surveillance based upon the belief that the FISA
court would grant the warrant retroactively within 1 week.
So 9 hours and 38 minutes after three American soldiers
were kidnapped, and after it became apparent that there was
signals intelligence that might help identify who their
kidnappers were and where these American soldiers were located,
it took almost 10 hours to get the necessarily paperwork done
by the lawyers at the Department of Justice in order to get the
approval for the kind of surveillance that was required.
Is that the kind of impediment or barriers to signals
intelligence surveillance that you are asking that the Congress
avoid and eliminate so we can hopefully save American lives?
Mr. Wainstein. Absolutely, Senator Cornyn. That particular
incident--obviously it's classified. There is only so much I
can say about it--it was a bit unique in the sense that there
were some very novel issues of law there. However, even if you
take it out of that context, so that I don't step in classified
matters, into any emergency authorization context.
There is a provision that allows us to have the Attorney
General, and now delegated to me, authorize surveillance on an
emergency basis. Within 3 days, however, we have to go to the
FISA court with a big package of materials and persuade the
FISA court that there is probable cause that the person we are
surveilling, who might well be outside the United States, is an
agent of a foreign power. So we have to have all that probable
cause before the Attorney General makes his determination.
It then has to be put into a package and satisfy the FISA
court, or else there are consequences. That all takes
resources. It also means that there are people who are
legitimate targets overseas against whom we just cannot make
probable cause that they are agents of a particular foreign
power, and we cannot surveille them at all. So it is not only
an impediment in terms of, it takes time, it takes resources,
but it is precluding us--or it did preclude us--from
surveilling legitimate targets overseas. It's much better now.
Senator Cornyn. Mr. Wainstein, you of course were talking
about matters that are both public, and some classified which
we are not going to talk about. But I just want to stress, the
time line that I provided to you was in published news reports.
I'm not asking you to confirm or deny that time line, but the
report, according to the New York Post, was that it took 10
hours later.
And my constituents in Texas, the parents of this young
corporal that lost his life searching for these three Americans
soldiers who were kidnapped and whose discovery was delayed by
10 hours because of the red tape necessitated by the
interpretation of the FISA law, I believe contributed to this
young soldier's death.
Mr. Wainstein. Absolutely. Absolutely, sir.
Senator Cornyn. And that's just simply unacceptable. I
think it ought to be unacceptable to every American, when we
are at war, to handcuff our American military and intelligence
officials in this unacceptable way. Just, to me, it's a no-
brainer. I just fail to understand why we need a ``Guarantee
Full Employment Act'' for lawyers in order to fight a war.
Let me ask you, there's been some question about the
retroactive immunity for the telecoms who have participated in
the intelligence surveillance that you described earlier. There
is some question whether we ought to cap damages, whether we
ought to grant them some sort of reimbursement for their
attorneys' fees, and other costs. But there are other tangible
consequences associated with litigation which could be avoided.
I suggest to you that, during Judge Mukasey's testimony, we
talked about the fact that during the 1993 trial involving the
World Trade Center, where the trial of Omar Abdul Raman, the
so-called Blind Sheik, who conspired to bomb the World Trade
Center, that a list of 200 unindicted co-conspirators was
disclosed to defense attorneys and later found its way into the
hands of Osama bin Laden in the Sudan. Bin Laden was, of
course, on the list. Does that highlight one of the other risks
attendant to litigation of this nature involving classified
materials, sensitive classified information might find itself
in the hands of our enemy?
Mr. Wainstein. Yes. Absolutely. Now, of course that's a
different context. The criminal context--we have discussed with
Senator Specter the Classified Information Procedures Act,
which helps us there. But still, even in that situation, you
had disclosure of very sensitive information which was very
detrimental to our effort against our enemies.
We are concerned that that is going to happen, even
doubling, in this litigation. My understanding is, there are
40-some cases right now around the country. With all those
cases running, we are gravely concerned that sources not be
disclosed.
Senator Cornyn. Thank you very much.
Thank you, Madam Chairman.
Senator Feinstein. Thank you, Senator.
Senator Whitehouse.
Senator Whitehouse. Thank you, Madam Chairman.
Just so it is clear what we are talking about, because I
think everybody agrees that we don't want to handcuff our
military and our security intelligence forces when they're out
hunting foreign terrorists, the Protect America Act, as it
passed by this Congress back in August, would allow no
restriction or would establish no restriction on our
intelligence agencies once a person was reasonably believed to
be outside the United States. Correct?
Mr. Wainstein. Yes, sir. There were various criteria that
we had to satisfy before the DNI and the Attorney General could
issue a certification. But the key finding was that the person
we were targeting with surveillance was outside the United
States.
Senator Whitehouse. Was reasonably from outside the United
States. And that category, ``reasonably believed to be outside
the United States'', would include a family on vacation in the
Caribbean, an American family, all citizens on vacation in the
Caribbean, that category?
Mr. Wainstein. If there was a foreign intelligence purpose
to that surveillance, and if we demonstrated that that person
or that family was an agent of a foreign power, yes.
Senator Whitehouse. Where, under the Protect America Act,
do you have to demonstrate that they are an agent of a foreign
power?
Mr. Wainstein. That's under the 12333.
Senator Whitehouse. Exactly. It's not under the Protect
America Act. There's nothing in the Protect America Act that
would prevent the intelligence apparatus of the United States
from surveilling American citizens on vacation in the
Caribbean. Correct?
Mr. Wainstein. One of the criteria is that there is a
foreign intelligence purpose--this is in the statute--to that
surveillance, and we have to meet that.
Senator Whitehouse. That's rather broadly defined, isn't
it?
Mr. Wainstein. Well, I think--
Senator Whitehouse. And there's no judicial review of that
determination, is there?
Mr. Wainstein. Well, there's a judicial review of the
procedures by which we--
Senator Whitehouse. But no judicial review of the
determination that that family vacationing in the Caribbean is
being surveilled for an intelligence purpose.
Mr. Wainstein. Well, obviously the directives can be
challenged. Congress set up a mechanism by which they can be
challenged, so there is court review there. But in terms of
going to the court--
Senator Whitehouse. You must be reading a different statute
than I am. I find no place in which a directive is required
from a court authorizing a family vacationing in the Caribbean,
or a businessman traveling to Canada, or somebody visiting
their uncle in Ireland, from being surveilled by the United
States. The FISA court is stripped of that jurisdiction by that
statute, is it not?
Mr. Wainstein. But the FISA court--right. The FISA court
reviews the procedures by which we determine that those people
outside the United States--
Senator Whitehouse. Right. But they don't review the
determination.
Mr. Wainstein. They do not give us approval up front.
That's the difference.
Senator Whitehouse. Correct. I think that's an important
point. I think what we're trying to get at here is, what is the
best way to protect Americans when they happen to be traveling
abroad? This is a different world now. People travel all the
time, for all sorts of reasons. I don't think anybody in
America believes that they give up their constitutional rights
the instant that they cross the border.
You indicated that you thought that there was a difference
between whether you are in the country or outside of the
country in the criminal law as well. Has the Department of
Justice, the United States Department of Justice, ever wire
tapped an American citizen outside of the United States in a
criminal investigation without a court order?
Mr. Wainstein. I honestly don't know historically what the
Department has authorized or not. What I'm talking about
though, is that as you know--
Senator Whitehouse. Are there any American citizens
presently being surveilled by the Department of Justice outside
of the United States without a court order in a criminal
investigation?
Mr. Wainstein. I wouldn't know. I'm going to be careful,
because I just don't know, Senator. But the point I was--
Senator Whitehouse. Will you take those two questions for
the record, please?
Mr. Wainstein. I would be happy to take them for the record
and get back to you.
The point I was making earlier, sir, is that, as you know,
in a criminal context there is not a warrant mechanism whereby
a judge would issue a warrant for a search in Bangladesh or
Buenos Aires, or whatever. My point is, just the fact that
there isn't one on the national security side is not that
striking because there's not such a mechanism on the law
enforcement side either.
Senator Whitehouse. It strikes me, though, as we're trying
to resolve these difficult issues where we're balancing the
interests of an American citizen on vacation in the Caribbean,
or traveling to visit their uncle overseas in Canada, or
whatever, against the absolute necessity that we have the tools
that we need to combat the threat of agencies and organizations
abroad that wish to do us harm, that we have a reasonably good
model in the balance that's been struck on the domestic side,
through both the warrant requirement on the one hand and the
minimization rules that protect the people who aren't the
target, but happen to talk to the target on the other hand.
As a general proposition and allowing for the fact that
there are going to be matters of fine legislative language and
unintended consequences and so forth, as a general proposition
does the Department of Justice agree that that is a useful and
important benchmark in evaluating whether we have succeeded in
striking that balance?
Mr. Wainstein. I guess I'll draw on my personal experience,
sir. I, like you and a number of members here, was a criminal
prosecutor for 15 years of my career. I used Title 3. I used
the regular warrant requirement in domestic law enforcement. It
is what I was accustomed to. After 9/11, I got into the
national security game and started seeing what was necessary.
Frankly, I don't think that that construct would work. It
simply would not work, given the volume, diversity of
communications that we need to intercept, the nimbleness with
which we need to act to protect.
Senator Whitehouse. Wouldn't work for who? We have the
Director of National Intelligence who said that Americans
targeted abroad numbered 56. That is not in the context of our
enormous defense effort against terrorism, in the context of
our enormous--I think $40 billion-plus was recently
declassified by the DNI intelligence effort against terrorism
to pay for having people put together packages for 56 folks so
that an American who travels abroad knows that they enjoy the
warrant requirement, does not seem to be the kind of
interference that you are suggesting. Why is it that putting
together a package for 56 people would so offend that balance,
in your view?
Mr. Wainstein. No, I'm sorry. I was talking about a
benchmark for signals intelligence, period, on the national
security side.
Senator Whitehouse. I'm talking only about American
citizens.
Mr. Wainstein. In terms of Americans--
Senator Whitehouse. When they travel abroad.
Mr. Wainstein. I recognize that that's a different kettle
of fish and there are different rights implicated. My point is
that--
Senator Whitehouse. In fact, as far as we know, the U.S.
Supreme Court might very well say that they have a warrant
requirement right. It's never been decided otherwise, has it?
Mr. Wainstein. No, you're right. It hasn't been decided.
The problem is, there are operational concerns. One of the
concerns, for instance, is in the amendment that passed there
is no emergency provision for going up and surveilling a U.S.
person overseas without going to the FISA court.
Senator Whitehouse. I'm with you on emergencies. My time
has run out. I thank the Chair.
Mr. Wainstein. So I would be happy to brief you on other
operational concerns we have about certain aspects of the
amendment.
Senator Whitehouse. We are in active discussion.
Mr. Wainstein. Okay. Thank you, sir.
Senator Whitehouse. Thank you, Madam Chair.
Senator Feinstein. Thank you, Senator Whitehouse.
Senator Graham.
Senator Graham. Thank you.
Thank you very much for your service to our country in many
capacities. We have two concepts that have been competing
against each other since 9/11, and I have somehow been able to
make everybody on both sides mad at me at one point in time.
The first concept is that we are at war, which I agree.
Some people in the administration had the view that when we are
at war, there is only one branch of government. That is one of
the reasons we have had this big fight, is because we've been
fighting against a theory of the executive branch in a time of
war that said there's no need for FISA or any other check and
balance.
Did you ever feel comfortable personally with the idea
that, when we authorized the use of force, congressional use of
force regarding Iraq, that Congress intentionally gave you the
authority to avoid compliance with FISA?
Mr. Wainstein. I've read the argument that the AUMF, right
in the aftermath of 9/11--
Senator Graham. I mean, do you personally feel comfortable
with that legal reasoning?
Mr. Wainstein. I'd have to say, and I'm not just trying to
hedge, I'd really have to go back and dig into it because it's
a complicated matter. I don't pretend to be a constitutional
scholar on the separation of powers issues, at least I don't
have it at my fingertips.
Senator Graham. I just want you to understand--I think
you've been a very good witness--that one of the conflicts
we've had, is that I'm a conservative, want to win the war as
much as anybody else, but one thing that conservatives and
liberals have in common is a concept of checks and balances,
that we can have military--see, I think we're at war and the
military should try these people that are caught who are
suspected of war crimes, but there is a process that you go
through with court review. So that's one concept that I think
is now behind us, so I want to put on the record that I
appreciate the administration's willingness to abandon that
theory, sit down with us, and try to find a way to comply with
FISA.
Now we've got another concept that I think is rearing its
head in this debate, is that you're trying to apply domestic
criminal law to a war-time environment. I have been arguing
very ferociously that we are dealing with an act of war after
9/11, and the Law of Armed Conflict applies, not domestic
criminal law.
I am the first one to say, you cannot hold someone
indefinitely under domestic criminal law without a habeas
petition or some court date. But we are not dealing with common
criminals, we are dealing with warriors who can be kept off the
battlefield, under the Law of Armed Conflict, for an indefinite
period because it would be silly to release people back to the
fight who have vowed to kill you.
Now, looking at FISA from those two concepts, the Protect
America Act, I think, has found a sweet spot as far as I'm
concerned. The general idea that you would need a warrant to
surveille the activity of an enemy combatant justifies all the
laws of armed conflict. So, as I understand this compromise
we've reached, if you find, or we find someone we suspect of
being part of the enemy force, we have the ability to listen in
to those communications under the theory that we are
surveilling somebody who is part of the enemy. Is that correct?
I mean, that's why we're following these people.
Mr. Wainstein. It's for foreign intelligence purposes. Yes.
Senator Graham. Yes. We're not following them for crime
purposes, we're following them because we're at war.
Mr. Wainstein. It's a matter of national security and
foreign intelligence.
Senator Graham. Right.
Mr. Wainstein. I mean, that person can also be committing a
crime at the same time. Of course, international terrorists are
both a national security threat, as well as a criminal threat.
Senator Graham. Right. Right.
Now, when an American is involved, here's where I think we
need a warrant. If someone is calling me from overseas and you
think the person calling me is a terrorist, I don't mind you
listening in to what's being said. But if you believe I'm
helping the enemy--and this gets back to your question--that I
am somehow part of a fifth column movement, I want you to go
get a warrant because you'd be wrong.
We've had examples of people since 9/11, anthrax, suspected
of doing something. The government followed them around and
nothing ever happened. I don't think it is a burden for the
administration, this administration or any other
administration, at a point in time to go to a court and say
``we believe Lindsey Graham is involved with a terrorist
activity''.
Do you think that's a burden?
Mr. Wainstein. No. That's a burden, actually, that we will
shoulder, sir. Because, according to the legislation that came
out of the Senate Intelligence Committee, if we want a target,
when we get to a point where we're targeting somebody in the
United States--
Senator Graham. Right.
Mr. Wainstein.--this is actually under the original FISA.
Senator Graham. Right.
Mr. Wainstein. But it continues through the Protect America
Act. We have to go to the FISA court.
Senator Graham. And that's really not a burden, is it?
Mr. Wainstein. Well, it's a burden, but it's a burden that
we assume and that we feel is appropriate, and that we're
willing to carry on.
Senator Graham. If you would have said that 3 years ago we
wouldn't be doing all this.
Now, to my friends who want to expand it overseas, I think
you are creating a burden. As much as I like Senator Wyden, we
are at war. I do believe that his amendment is expanding FISA
and doing the same type harm as if you never had to go through
FISA. As much as I appreciate him, like him, and understand
that he's doing this for all the right reasons, I hope we will
find a way not to impose that burden upon our Nation at a time
of war. That's just my comment, not a question.
Finally, about the retroactive liability of people who have
helped us. What effect, if any--a chilling effect, if any--
would it have that if a company is held liable or can go to
court by answering a request from their government with a
document that says ``this is a legal request'', what type
effect would it have in the future of the ability of this
country to go get people to help us?
Mr. Wainstein. From my personal, sort of parochial
perspective, that is the big concern because, you know, I am in
a division of people whose job is to enable the intelligence
community to do fast, flexible surveillance when it's
appropriate, and we're concerned that companies are rational
beings. They say, Okay, we cooperated before, we then got taken
into court, and all the damage that goes along with that.
Next time you come to us, it doesn't matter how good the
form is that you give us, how strong an assurance there is,
we're going to go ahead and litigate it all the way out to the
nth degree to make sure that we protect ourselves and don't end
up in court later on. That then delays our ability to go up and
get the surveillance we need.
Senator Graham. To my colleagues on the committee who think
we're letting someone off the hook. I respectfully disagree. If
we go down this road of holding people liable for answering a
request of our government to help in a time of war, we're
probably hurting ourselves, not letting someone off the hook.
Thank you.
Senator Feinstein. Thank you very much, Senator Graham.
Senator Durbin.
Senator Durbin. Thank you, Madam Chair.
Mr. Wainstein, when I use this little piece of technology
to make a phone call or to send an e-mail message, I think I
have a reasonable right to expect that that communication and
my identity are going to be protected, confidential, private,
except with some notable statutory exceptions. If the company
that I'm doing business with receives a warrant to search or
obtain records, that's understandable. At that point, their
obligation to me as a customer is secondary to this warrant
that they received.
Now, in this context of national security, under the
statutes written, there is a second possibility. That is, in
addition to a warrant, there could be this so-called
certification that the government has the right to request this
information, who I am, what I said, and what I did.
Now, you stated this in the most general terms in your
testimony, in terms of the responsibility of the
telecommunications provider to me, or any other customer. You
said: ``The committee's considered judgment reflects a
principle in common law that private citizens who respond in
good faith to a request for assistance by public officials
should not be held liable for their actions.''
So let me ask you this. In the course of our government's
reaching out to telecommunications providers, asking for
information about communications for the purpose of national
security, did any of those telecommunications providers refuse
to cooperate, refuse to provide the information?
Mr. Wainstein. Senator, I'm just not going to be at
liberty--or equipped, for that matter--to answer that question.
Obviously it's classified. I wasn't even around during most of
that, at least in main Justice. But I think that's something
that you--I'm not sure if you went to the briefing yesterday,
but colleagues of mine were up there yesterday explaining the
chronology and the history of the whole program, the terrorist
surveillance program and the interaction with the providers,
and we'd be happy to come up and answer any more questions.
Senator Durbin. So in order to protect what was said at
that hearing, let me continue on in a hypothetical way, noting
that there has been one telecommunications provider through one
of its officers who has reported publicly that they refused to
cooperate. But let me ask you this. If the question is good
faith on the part of the providers and we come to learn that a
telecommunications provider refused to cooperate, saying that
the certification that was provided by the government was not
adequate under the law, is that something we should take into
consideration?
Mr. Wainstein. In deciding what sort of immunity and
whether to--
Senator Durbin. In deciding whether or not it's a good
faith effort by a company to cooperate with government.
Mr. Wainstein. Well, not knowing the facts and not being
able to address the facts even if I knew them--I mean, the fact
that a company refused doesn't necessarily make the rightness
of their position. What I see, is that there are letters that
went out to these companies that said very forcefully, this is
being directed--this was directed by the President and this has
been deemed lawful at the very highest levels of the
government. That's a pretty strong assurance.
So I guess in terms of good faith, that's very strong
evidence of good faith. The fact that one company refused to
cooperate, if that is in fact the case, I don't think that
necessarily undercuts the strength of those assurances.
Senator Durbin. I disagree. If a telecommunications
provider looked at the same certification as another
telecommunications provider and concluded it was not sufficient
under the statute to waive that company's responsibility to
protect the privacy and communications of its customers, I
think that is relevant to the discussion here.
Assuming for the sake of discussion this company that has
already publicly disclosed what happened is factual in what
they said, we at least know that one telecommunications
provider took a look at what was being sent and said ``that's
not good enough. I have a responsibility to my customers to
protect their identity.''
So that raises a question of fact, doesn't it, as to what
is good faith and what isn't. Which company operated in good
faith? Where do we resolve questions of fact in America?
Questions of fact and law are resolved in a court. What you're
suggesting from your testimony is, we don't want to resolve
this. We don't want to have these telecommunications providers
held accountable to explain their conduct.
Now, that troubles me. It troubles me because, from my
point of view, it's going to have a chilling effect on the
relationship of telecommunications providers, their customers,
and our government. How much can I trust in the future if I
know the telecommunications providers can disclose my
conversations, information about me, with impunity, with
immunity under the law? What do you think?
Mr. Wainstein. Senator, thanks for that line of questions.
Back to the fact that one company might have refused. Keeping
it in the abstract, because I don't know the facts, it could be
characterized that they did a good faith job and they
determined that this wasn't sufficient. It also could be an
example of the phenomenon I just described to Senator Graham,
which is a company saying, boy, I'm just not going to do
anything to assist the government.
I'm not going to make it easy. I'll go into my shell, and
not try to help because I'm going to be risk averse. Well, the
problem is, is that the more these companies are exposed, the
more you're going to have companies doing exactly that. Now, I
don't know what the thought process was in this particular
case, but I'm saying that it could be--
Senator Durbin. Interesting.
Mr. Wainstein. It could be looked at that way.
Senator Durbin. An interesting and relevant question. Isn't
the law and fact usually resolved in a court, by a judge? And
the point that was made earlier by Senator Leahy is that at
some moment in time, after the public disclosure of the so-
called ``secret'' program, our government decision, you know,
the safest thing to do is to go through the FISA court. If we
hand them a court order, we don't have to worry about whether
or not this authorization document is really going to carry the
day. That, to me, was a conclusion and an admission of the
obvious.
That is an admission which I think shows where our
government should have been from the start. They knew that if
they went through the FISA court with a court order, the
telecommunications provider would have no argument. But when
you get to this so-called authorization, there clearly was an
argument, at least for one telecommunications provider.
So, you know, it strikes me as strange, middling strange,
here, that we're in a position saying that this company that is
supposed to protect my identity and my communications, if it
asserts my privacy, my right to privacy over a government
request, that somehow they're obviously not doing their
``patriotic duty''. That's how you referred to it, their
``patriotic duty''.
It's even been suggested by one of my colleagues here that
these lawyers bringing this lawsuit, we've got to question
whether they might be connected with terrorist organizations.
Remember that? Remember that statement that was made earlier?
Hasn't this gone pretty far afield from the fundamental
question, the conflict between privacy and security? Isn't it
reasonable to say that company has a statutory and personal
obligation to me to protect my identity, and only to give it up
for a legitimate, statutorily recognized purpose, a court order
or a certification that they can stand behind?
Mr. Wainstein. Just to be clear, I've not heard--and I've
followed this primarily in the newspapers--of bad faith on the
part of any companies. We're not trying to suggest--I'm not
suggesting that at all. I think, actually, companies acted in
good faith, and I do believe they acted out of patriotic duty,
or sense of patriotic duty.
I think, though, the legislation in the Senate Intelligence
bill is a good middle ground where it gives targeted immunity
for the events after 9/11 where companies did act on these
assurances--but then lays out, prescribes a course for those
kind of defenses in the future. There's a second part which
does that, which I think is quite sound because it says, look,
we're going to deal with this one-shot problem post 9/11,
between 9/11 and when we went to the FISA court or got FISA
court approval, but then from here on out, this is the
mechanism that we're going to use, and we'll do that without
having to resort to the State Secrets Doctrine. I think that's
a very sound approach.
Senator Durbin. Thank you very much.
Thank you, Madam Chairman.
Senator Feinstein. Thank you, Senator. Thank you, Mr.
Wainstein.
Senator Hatch has not yet had his first round. But before
turning to him, I would like to state what the Chair's intent
is. If anyone disagrees, please let me know. I'd like to go
until 1:45, and we have a second panel. We'll ask the panelists
to think about their remarks--we have their written remarks--
summarize them, and then limit the rounds to a strict 5
minutes, if that's agreeable with everybody.
[No response].
Senator Feinstein. Hearing no objection--I meant 12:45.
Excuse me. Hearing no objection, that's the way we'll proceed.
Senator Hatch, it is all yours.
Senator Hatch. Well, thank you, Madam Chairman. I
appreciate it.
I am sorry to keep you a little longer. But the current
bill provides authorization for the Attorney General and the
Director of National Intelligence to direct in writing an
electronic communications service provider to provide the
government with all information, facilities, and assistance
necessary to accomplish authorized acquisition.
However, I don't see that the bill language has specific
non-disclosure language for these likely classified directives.
Can you research whether this is needed and provide an answer
to the committee's consideration of the bill?
Mr. Wainstein. [microphone off].
Senator Hatch. Okay, if you would.
Now, there have been some suggestions to have the FISC
assess compliance with the targeting and minimization
procedures. There are numerous oversight mechanisms in this
bill already. Wouldn't this put the FISC in a position where it
is making foreign intelligence determinations in place of
analysis?
Mr. Wainstein. That is the problem, that it would get the
FISC in a position of being operational to the extent that it
is not when it assesses compliance for, let's say the
minimization procedures in the typical, traditional FISA
context where you're talking about one order, one person. Here,
some of our orders might well be programmatic, where you are
talking about whole categories of surveillances. That would be
a tall order for the FISA court to assess compliance.
Senator Hatch. That's my understanding. The House bill on
FISA requires that the FISC approve any foreign targeting
before it occurs. We need to remember, we're talking about
foreign targets that are overseas. From the Department of
Justice's perspective, what are the negative consequences of
prior approval?
Mr. Wainstein. It's that, prior approval raises a host of
issues. One, we might not get the approval and that can slow
things down. The House bill actually says, if at the end of 45
days the court hasn't ruled, our surveillance has to go down.
There is an emergency procedure, but it goes down and we lose
it. There's not even an mechanism for surveillance remaining up
as we appeal a declination by the FISA court.
We have seen over time, as we've discussed earlier, as FISA
has migrated--the jurisdiction of FISA has migrated to
surveillances outside the United States with the change in
technology since 1978, more and more we've had to go to the
FISA court to get approval at the front end, and that's more
and more burden on us and more--
Senator Hatch. And it always takes a considerable amount of
time to go through the FISA procedure, sometimes less than
others. But if it's a serious request, it can take a number of
days, couldn't it?
Mr. Wainstein. Yes. It can take a long time. It can also
take a lot of person hours because you have to put together a
lot of paper.
Senator Hatch. But we could lose the intelligence that
really might protect our country.
Mr. Wainstein. That's the concern. Yes, sir.
Senator Hatch. That's my concern. Other legislative
proposals relating to FISA modernization have called for a
narrow definition of foreign intelligence information applying
only to international terrorism. Now, please provide an
explanation of the flaws in this suggestion and how this type
of unnecessary limitation could facilitate our intelligence
community missing the next step?
Mr. Wainstein. That's an interesting question, sir. For
instance, the bill that the House is considering would take the
definition of foreign intelligence information that is in FISA
that talks about all of the sorts of information that you would
think would relate to the national security, but would carve
out, leave out of that definition in the House bill
intelligence relating to the foreign affairs of the country.
Other bills have said, let's just limit this to
international terrorism, not all the other types of foreign
intelligence. The reality is, our foreign intelligence
collection network and our intelligence community operates in a
way that it gets the whole range of foreign intelligence--
Senator Hatch. Sometimes those ranges are interconnected
that would lead to terrorism to begin with. You might not get
the terrorists without the other range of information. Is that
right?
Mr. Wainstein. Absolutely. And to try to draw lines, to
have analysts draw lines and say, well, this is more of
interest to the State Department than the Defense Department,
therefore it's foreign affairs and we can't do it, it would be
very problematic operationally.
Senator Hatch. Yes. We're living in the big-time world here
where we have a lot of people who'd like to destroy the United
States and everything we stand for, and our allies as well. We
have to stand tough on these things. Is that a fair analysis?
Mr. Wainstein. I agree sir. And you can bet that our
adversaries, especially those other states who are directing
intelligence operations against us, they are definitely trying
to get all foreign affairs information and they're not limiting
themselves.
Senator Hatch. They're not limiting themselves just to
terrorism.
Mr. Wainstein. Not at all.
Senator Hatch. Because they don't have a threat from us.
Mr. Wainstein. Right.
Senator Hatch. Well, this legislation is crystal clear
about prohibiting reverse targeting. Testimony in the second
panel leads me to believe that people still don't understand
that particular issue. Now, can you describe for us reverse
targeting and how it is not allowed under current law, as well
as this legislation?
Mr. Wainstein. Thank you for that question because it is,
understandably, a complicated area. What it means when we
target somebody for surveillance, it means--and this is very
operational--the intelligence community actually takes its
gizmos and targets them against the person or the facilities
that person is using outside the United States, so under this
legislation we would be able to do that without going to the
FISA court.
Senator Hatch. Right.
Mr. Wainstein. The concern is, what we would do, is we'll
find Ken Wainstein, who's outside the United States, and we'll
target him, but we're doing that really because we want to get
the communications of a person within the United States. So the
concern is, we're actually using this to circumvent the court
to actually surveille someone in the United States.
This legislation from the Senate Intelligence Committee
makes it clear we cannot do that. Original FISA said we cannot
do that. Once we target the person in the U.S., we have to go
to the FISA court. And as a technical matter, targeting the
person in the United States means a technical shift, so we're
actually shifting our targeting and our apparatus over to that
person. It's against the law to do that. We'd have to go to the
FISA court.
In fact, it would make no sense, sort of as a matter of
tradecraft, if we really had an interest in the person in the
U.S., to just limit our surveillance to the person who's
outside the U.S. and talking to him, because we'd only get that
suspect's communications to the person outside the U.S. You
wouldn't get all that other person's communications. Instead,
what we would do is go to the court and get a FISA order to get
all that person's communications. So this legislation makes
clear we can't do that, FISA made it clear we can't do that, by
letter from us to this committee a couple of months ago we made
it clear we're not doing it, we won't do it, and congressional
oversight will ensure that we won't.
Senator Hatch. Madam Chairman, could I have just a little
of additional time to make a comment or two that I'd like to
make?
Senator Feinstein. Yes.
Senator Hatch. I appreciate your testimony and I appreciate
the difficulties in these areas. I hope that people aren't
going to try and exploit some of these situations because we
are talking about protecting people in this country and our
allies around the world. It takes an awful lot of effort.
Unfortunately, more has been disclosed about what we have been
trying to do than I think should have been disclosed.
Section 703(c) of this bill has received a great deal of
attention, with good reason. This section would require court
approval for acquisitions targeting American persons overseas.
Unlike current provisions of FISA relating to electronic
surveillance, this section provides no emergency provision for
an acquisition targeting an American citizen overseas. Now,
this means that it would be harder to surveille a citizen
outside of the country than inside the country. Do you agree
with that?
Mr. Wainstein. Yes. That's the irony of it.
Senator Hatch. Given the importance of intelligence
collection to our safety, why in the world would we handcuff
ourselves in this way? I mean, even if this section is amended,
it is a dramatic departure from the 26 years of history under
Executive Order 12333. I think it's imperative for us to
emphasize that there are many warrant exceptions to the Fourth
Amendment.
The question is whether the search is ``reasonable''. For
example, the individuals attending today's hearing were forced
to go through a magnetometer just go get access to this
building. Now, this was a warrantless search, but I think
everybody would agree that it's a reasonable search.
So if the Attorney General of the United States determines
via probable cause that an American citizen overseas is an
agent of a foreign power, is a warrantless acquisition of his
communications reasonable? I think the answer is an emphatic
``yes''. Do you agree?
Mr. Wainstein. Yes, sir. And I think that's the basis for
the 12333 mechanism that has been in place. As you point out,
there are many scenarios where a search is done: at border
searches, stop points where they stop cars, whatever the term
is, here going in and out of public buildings where there are
searches. They are done without court order, but they're
considered ``reasonable''. Reasonableness is the touchstone.
That's the critical element for searches overseas, and that is
satisfied by this 12333 mechanism. It's been found that way by
the court.
Senator Hatch. I'm grateful to the Chairman for giving me a
little extra time.
Could I put this in the record?
Senator Feinstein. You certainly may, Senator.
Senator Hatch. Madam Chairman, I would like to put in the
record the October 29, 2007 letter from James B. Comey, former
Deputy at Justice, John Ashcroft, the former Attorney General,
Jack Goldsmith, who has been quoted in the media continuously,
and Patrick F. Philbin.
[The letter appears as a submission for the record.]
Senator Hatch. This letter is directed to the Chairman and
Ranking Member, Chairman Leahy and Ranking Member Specter. It's
written to support the carrier immunity provision, passed with
bipartisan support in the FISA reform legislation recently
reported out of the Senate Select Committee on Intelligence and
now before your committee for consideration.
It is a very interesting letter and makes a very good case
that we're talking about protection of our people in this
country. If we don't get the tools to protect, and if we don't
have access to the telecom companies and others, if they are
going to be sued, there's $40 billion worth of suits because
they cooperated with our intelligence community, if we don't
give them immunity there isn't going to be any cooperation in
the future. How would that affect us?
Senator Feinstein. Senator, your time--I've been very
generous.
Senator Hatch. You have been. I think--
Senator Feinstein. I'm just--
Senator Hatch. I think I'll have to quit at that question.
Senator Feinstein. I think you might be well advised.
Senator Hatch. Okay. Well, if you answer that, I'll keep my
mouth shut and I won't even ask for a second round.
Senator Feinstein. Quickly, Mr. Wainstein.
Mr. Wainstein. It will detrimentally affect us, Senator
Hatch. Very much so.
Senator Feinstein. You've got the answer, Senator. Thank
you very much.
Senator Hatch. Thank you.
Senator Feinstein. Senator Brownback.
Senator Brownback. Thank you very much, Madam Chairman.
Mr. Wainstein, thank you for your testimony. I've just got
a couple of points and they're ones you've covered, but I just
want to make sure that I'm clear on it and I understand you
fairly as well.
One, just really following up with Senator Hatch's
thoughts, we're going to be in this fight on terrorism, I
think, at least for a generation. If we don't have private
companies, private individuals cooperating with us, I think
we're going to have a longer fight, and we'll have a less
successful fight.
And so we've got to give them some liability protection to
be willing to work with us. That's why I like to see the
provision in the bill. The FISA Amendment Act goes, I think, a
long way toward giving the intelligence community, which plays
this vital role of protecting the lives of Americans and our
neighborhoods around the world, the tools it needs.
I am especially pleased that the Act provides liability
protection for the communications service providers. I just
think that is incredibly important. A guy yesterday was telling
me that telecommunication intelligence is the queen on the
chessboard now for us. With the difficulty of human
intelligence, this is just key. We've got to be able to get at
this information and we've got to be able to protect people's
civil liberties.
I agree with all of that. I just want to make sure, from
your perspective, just to be clear, this bill does not grant
any immunity for criminal acts that might be done by private
individuals.
Mr. Wainstein. No, sir, it doesn't.
Senator Brownback. Okay. And it does not grant immunity for
any government agencies or officials?
Mr. Wainstein. No. It's for the providers.
Senator Brownback. Okay. So even with the carrier immunity,
there are still avenues for individuals to challenge actions
that might take place. Is that correct?
Mr. Wainstein. Absolutely. I think, actually, if people
have concerns, it's about the legality of the program as
determined by the government. So if they're going to litigate,
they should direct their litigation at the government that
assured the providers that this was legal.
Senator Brownback. It sure looks like to me, if we don't
provide this liability immunity to the communications
companies, they're going to start turning us down for a request
for information that we should be able to lawfully obtain. Is
that correct?
Mr. Wainstein. That's my concern, that they'll turn us down
or they'll just feel like, to protect themselves against
potential liability down the road, they've got to litigate
everything we give them. They've got to challenge every order,
every directive just to make sure that if someone down the road
sues them, they've got a record, a record of having pushed
every button and made sure that they've looked at every angle.
That is--
Senator Brownback. That eats up time.
Mr. Wainstein. It eats up time.
Senator Brownback. That takes us away from being able to
get the intelligence information that is probably in a real-
time need, would be my guess.
Mr. Wainstein. Absolutely. When we hear about a facility we
want to surveille, we need to go up immediately. That's why we
use the emergency authority quite often. But just like
criminals who go through telephones all the time, change their
phones all the time, terrorists will change their modes of
communication. So if we can't get up and going on them quickly,
we often lose the opportunity to get the information we need.
Senator Brownback. And for us to be able to get the private
sector cooperation, they need the liability limitations or the
liability immunity. Is that correct?
Mr. Wainstein. Yes, sir.
Senator Brownback. As a lawyer who does not practice this
type of law, but if I were advising a company without that
liability limitation or immunity exposure, I would just say
``don't do it''. The safe answer is ``no''. The safe answer is
to make them go through the court system. I just don't know why
anybody would cooperate with us without that.
There was a great piece in the Wall Street Journal today.
It was former Attorney General Civiletti and Thornburgh, former
FBI and CIA Director Webster that wrote this: ``The government
alone cannot protect us from the threats we face today. We must
have the help of all our citizens. There will be times when the
lives of thousands of Americans will depend on whether
corporations, such as airlines or banks, are willing to lend
assistance.
If we do not treat companies fairly when they respond to
assurances from the highest levels of the government that their
help is legal and essential for saving lives, then we will be
radically reducing our society's capacity to defend itself.'' I
don't know if it could have been put any more clearly or
succinctly. I presume you would agree with that statement.
Mr. Wainstein. Absolutely. It's stated much better than
I've stated it here today. But that is the point, that we run
the risk of really handicapping ourselves in the war on terror.
Senator Brownback. Madam Chairman, thank you for this
chance. Mr. Wainstein, thank you for your work. Godspeed.
Mr. Wainstein. Thank you very much, Senator Brownback.
Senator Feinstein. The hour is upon us for you to depart. I
want to thank you very much. I know the committee appreciates
your testimony. So, thank you, Mr. Wainstein.
Mr. Wainstein. Thank you very much, Madam Chairman. Thank
you for the opportunity.
Senator Feinstein. Thank you.
We will move quickly on the next panel. As they come up, I
will introduce them.
Ed Black is the president and CEO of the Computer &
Communications Industry Association, where he previously served
as vice president and general counsel. Mr. Black also serves on
the State Department's Advisory Committee on International
Communications and Information Policy. Mr. Black spent time in
the State and Commerce Departments during the 1970's, focusing
on a range of issues, including telecommunications and
technology policy. He has worked for two Members of Congress.
The next person is Patrick Philbin, who currently works at
the law firm of Kirkland & Ellis. From 2001 to 2005, Mr.
Philbin served in the Department of Justice, where he focused
on national security, intelligence, and terrorism issues.
As a Deputy Attorney General in the Office of Legal Counsel
from 2001 to 2003, a critical time, Mr. Philbin advised the
Attorney General and counsel to the President on national
security issues. As an Associate Deputy Attorney General from
2003 to 2005, he oversaw and managed national security
functions of the Department, including applications for
electronic surveillance under the Foreign Intelligence
Surveillance Act.
Morton Halperin is the director of the U.S. Advocacy at the
Open Society Institute, and the executive director of the Open
Society Policy Center. Dr. Halperin has served in three
administrations, with positions in the State Department, the
National Safety Council, and the Defense Department.
Dr. Halperin has also worked for the American Civil
Liberties Union, serving as director of the Center for National
Security Studies from 1975 to 1992. He has taught at several
universities, including Harvard, Columbia, and MIT. He has
missed the West Coast in that area.
But we will now proceed. I will ask the panelists,
beginning with Mr. Black, to try to confine their remarks to 5
minutes, and then we will followup in like manner.
Mr. Black?
STATEMENT OF EDWARD BLACK, PRESIDENT AND CEO, COMPUTER &
COMMUNICATIONS INDUSTRY ASSOCIATION, WASHINGTON, D.C.
Mr. Black. Thank you, Senator Feinstein. It's a pleasure to
be here. I am Ed Black, president and CEO of the Computer &
Communications Industry Association.
For 35 years, CCIA has consistently promoted innovation and
competition through open markets, open systems, and open
networks. We greatly appreciate the opportunity to discuss the
critical intersection of national security law and privacy
rights before this committee.
As we all know, the Internet is an unprecedented and unique
force for democratic change and socioeconomic progress.
Increasingly, our Nation's digital economy--indeed, our global
competitiveness--depends on the dynamism and openness of the
Internet.
In the digital economy, all information service companies
have a custodial role to play regarding two key fundamentals of
the Internet: free speech, as protected by the First Amendment,
and privacy and security, protected by the Fourth.
If the marketplace loses confidence in the security of
business and personal transactions online, the entire digital
economy could grind to a halt. We understand our industry's
technology and the many ways in which it can be used, and ways
it can be misused. In addition to the most obvious domestic
benefits, the Internet is a tool for spreading freedom and
democracy around the world. Indeed, our government must
continue to lead by example in promoting the freedom of ideas
and communications that the Internet makes possible.
We urge you to ensure that this legislation not weaken the
hand of American companies that must contend with escalating
demands for censorship and surveillance by foreign secret
police around the world. CCIA supports current legislative
efforts to amend FISA to achieve a sound balance between
effective terrorist surveillance, vital to our national
security, and the constitutionally protected rights to privacy
and free speech.
We want to be good citizens. We do not, however, want to be
police agents. In order to do that, we need protection not just
from third party liability for acquiescing to proper demands,
but protection from improper government pressure or inducements
as well.
The Senate Intelligence Committee legislation, S. 2248,
while providing some important improvements over the hastily
passed Protect America Act, will allow too much surveillance of
Americans based on executive certification without a court
order, and disturbingly, the bill provides retroactive immunity
from civil liability for those who may have participated in any
illegal program without a full understanding of what conduct is
being immunized.
If we continue to make up the rules as we go along, any
violation of the Constitution perform to serve a very tempting
national security or law enforcement purpose and can be
rationalized and covered up by retroactive immunity.
Retroactive immunity for participation in the recent secret
government surveillance program is premature at best.
If immunity for past activities is granted prior to full
disclosure and accountability, Congress and the public may
never understand the real nature of the NSA warrantless wire
tapping program. We also believe broad retroactive immunity
would be ill-advised in any event because it would perpetuate
uncertainty, confusion, and second-guessing in the future. If
retroactive immunity is granted in this case, future extra-
legal requests will be accompanied by a wink and a promise of
similar immunity after things settle down.
Civil litigation should be allowed to proceed. Even if
major portions of the proceedings need to be held in camera and
the scope of discovery narrowed, judges--and to the extent
compatible with serious national security concern, the public--
should, and needs to, learn what really happened in these
cases.
In conclusion, millions of workers in our industry believe
that we are an industry that can be a strong, positive force
for our society. The underlying desire to facilitate
communications, the transfer of information and knowledge, and
the building of bridges across cultural boundaries: these are
core motivations of people in our industry. These motivations
are part of why our industry is successful. The economic
rewards can be great, but they are as much a consequence as
they are a motive.
To sustain this positive force, we must work together to
establish processes and protections for private, personal, and
business information that is so critical to the open and free
use of the Internet. Our industry needs clear and
constitutionally proper ground rules that are only deviated
from through well-defined, transparent processes. These rules
must be straightforward enough to be publicized and understood
by U.S. citizens and business people who may be called upon to
assist their government in these uncertain times.
Thank you.
Senator Feinstein. Thank you, Mr. Black. And thank you for
coming so close to the time limit. I appreciate it very much.
Excellent testimony, too.
[The prepared statement of Mr. Black appears as a
submission for the record.]
Senator Feinstein. Mr. Philbin.
STATEMENT OF PATRICK F. PHILBIN, PARTNER, KIRKLAND & ELLIS,
WASHINGTON, D.C.
Mr. Philbin. Thank you, Madam Chairman. I will try to keep
on the time limit as well.
I gained experience related to FISA and electronic
surveillance during my service at the Department of Justice and
learned that electronic surveillance is a vital intelligence
tool.
At the same time, it's an intrusive technique that if not
constrained and controlled properly, can threaten the liberties
and privacy of American citizens. Ensuring that electronic
surveillance remains an agile and adaptable tool, while at the
same time protecting American liberties, is the challenge
Congress faces in amending FISA.
In my testimony, I'd like to cover three points related to
bill 2248. First, I want to express support for the provisions
in the bill that will allow the executive to target the
communications of persons reasonably believed to be overseas
without first going to the FISA court. These provisions are
consistent with FISA's original purpose and are necessary to
ensure that FISA does not fall out of step with changing
technology.
FISA was not meant to regulate the collection of
intelligence on the communications of persons overseas.
Changing technology has led to the fact that some
communications going through the United States are now under
the FISA court jurisdiction. In my view, given changes in
technology, a longer term solution to make the application of
FISA less dependent on the medium used to carry a
communication, such as wire versus radio, and more directly
tied to the location of the target, is definitely warranted.
This provision is a good start in that direction. It
appropriately addresses the Nation's intelligence needs,
especially during the ongoing conflict with Al Qaeda, where
speed and flexibility in responding to targeting and tracking
of subjects overseas are vital for intelligence success.
Second, I want to express my support for the provisions in
the bill that grant immunity to telecommunications carriers
against lawsuits based on the carriers' alleged participation
in intelligence activities involving electronic surveillance
authorized by the President. I think that that immunity is
warranted for several reasons. First, protecting the carriers
who allegedly responded to the government's call for assistance
in the wake of the devastating attacks of 9/11 is simply the
right thing to do.
The allegations here are that, in the wake of 9/11,
corporations were asked to assist the intelligence community
based on a program authorized by the President himself and
based on assurances that the program had been determined to be
lawful at the highest levels of the executive branch.
Under those circumstances, corporations should be entitled
to rely on those representations and accept the determinations
of the government as to the legality of their actions. It would
be fundamentally unfair, in my view, to simply leave those who
relied on representations from the government twisting in the
wind.
The fundamental notion of fairness here is also rooted in
the law. As was mentioned in an earlier session, there is a
common law immunity for those who assist a public officer who
calls for assistance in a time of crisis. It is the same
principle of fairness that applies here.
Second, immunity is appropriate because allowing the suits
to proceed would risk leaking sensitive national security
information. As the suits progress, they will inevitably risk
disclosure of intelligence sources and methods that will damage
the national security. The assertion of state secrets privilege
is not a cure-all here. If it were a cure-all, the litigation
would not still be proceeding 2 years after it was filed.
The longer the suits proceed, the more details concerning
the ways the intelligence community may seek information from
the Nation's telecommunications infrastructure will leak. Our
enemies are far from stupid. As such information trickles out,
they will adapt their communications security to thwart our
surveillance measures and valuable intelligence will be lost.
Third, failing to provide immunity to the carriers here
would discourage both companies in the communications sector
and other corporations from providing assistance in the context
of future emergencies. In the continuing conflict with Al
Qaeda, one of our Nation's greatest strategic assets is our
private sector and the information it has available to it.
Intelligence is vital for success in this conflict, and
particularly communications intelligence. If immunity is not
provided, however, it is likely that in the future private
sector corporations will prove much more reluctant to provide
assistance swiftly and willingly, and critical time in
obtaining information will be lost.
I agree fully with the conclusion in the report in the bill
from the Senate Select Committee on Intelligence that ``the
possible reduction in intelligence that might result from this
delay is simply unacceptable for the safety of our Nation.''
Finally, I disagree with the suggestion made by some that
carriers should be forced, through the threat of liability, to
serve a gatekeeper role to second guess and provide, in
essence, oversight on the intelligence-gathering decisions of
the executive. Communications companies are simply not well-
positioned to second-guess government decisions regarding the
propriety or legality of intelligence activities.
I know from experience that the legal questions involved in
such matters are highly specialized, extremely difficult, often
involve constitutional questions of separation of powers that
have never been squarely addressed by the courts, and are not
readily susceptible for analysis by lawyers at a company whose
primary concern is providing communications service to the
public.
Conducting the complete legal analysis, moreover, requires
access to facts and intelligence information that is not, and
should not be, fully shared outside the government. We should
not adopt policies that effectively require private
corporations to demand intelligence information from the
executive and to conduct their own mini-investigations into the
propriety of intelligence operations. At the same time, there
must be some mechanism for addressing concerns raised about the
intelligence activities at issue.
As the committee is likely aware, I am intimately familiar
with the legal analysis conducted within the executive branch,
and debates about that analysis. I can understand that
reasonable people want further probing into the legal basis of
the program, and ensuring that all intelligence activities do
strictly adhere to the law is an imperative.
But the question of liability for telecommunications
carriers is logically and legally distinct from that debate.
The mechanism for addressing legal concerns about the
intelligence programs is through rigorous oversight within the
executive branch and through a joint effort between the
executive and Congress to ensure appropriate oversight. The
executive and Congress is charged with that responsibility.
Private lawsuits are not the best mechanism for providing that
oversight.
In conclusion, Madam Chair, I'd just like to note that I
agree with the comments that were made earlier, that a warrant
should not be required from the FISA court for conducting
surveillance of a U.S. citizen overseas. That is an expansion
of the FISA court's authority that I believe is unwise.
Thank you.
Senator Feinstein. Thank you, Mr. Philbin.
[The prepared statement of Mr. Philbin appears as a
submision.]
Senator Feinstein. Dr. Halperin.
STATEMENT OF MORTON H. HALPERIN, DIRECTOR OF U.S. ADVOCACY,
OPEN SOCIETY INSTITUTE, WASHINGTON, D.C.
Dr. Halperin. Thank you very much. I want to note that
there are, of course, many other people and many other
organizations that are expert on this and have deep concerns
about it. I know it was not possible to have them all as
witnesses, but I trust the committee will look at those views
as well.
I want to focus on the issue of immunity and the question
of sole means, because I think they're very closely related.
The discussion we've had this morning is a logical one, but it
totally ignores the history and the legislation that is before
us. It ignores the history because we were at exactly the same
point when FISA was introduced.
I was very much a part of that debate. The phone companies
came in in exactly the same way. They were being sued. I had
sued them for participating in the wire tap of my home phone.
They said this is unreasonable. We should not be required to
second guess. When we get a request from the government, we
should be able to know very clearly what we're supposed to do.
Congress provided that answer with extraordinary clarity in
the FISA legislation. It said, if you have a FISA warrant or a
certification from the government that the specific provisions
of FISA which permit surveillance without a warrant have been
met, if you get one of those two things, you must cooperate.
If you get something else, like a certification that says
the President has decided this is lawful without citing a
statutory provision, then they were supposed to say no, and
they were subject to civil and criminal penalties if they did
not, both State and Federal civil and criminal penalties.
I think the law was absolutely clear. So to now cite the
common-law rule that you need to cooperate, or say it is
unreasonable to put phone companies in this position, ignores
the fact that Congress answered that question with great
precision in FISA. It is also illogical, the argument that's
being made, because the argument says we want them to cooperate
in the future, and therefore we have to give them this
immunity.
But as the witness from the Justice Department agreed--and
I thought that was very important--this bill does lay out for
the future a scheme which does not require the phone companies
to do any of their own analysis or to make their own judgment
about what is patriotic.
Now, paradoxically it's the same scheme that was in the
original FISA, but a little clearer. I think there are ways in
which you can go beyond the Senate Intelligence Committee bill
to make it even clearer that Congress means to say to the phone
companies, you either have a warrant or you have a
certification that a specific provision of FISA where you don't
need a warrant is involved. If you get one of those two you
must cooperate, and if you do not, you may not cooperate.
Now, that's a rule going forward which will lead the phone
companies to cooperate because there's no judgment. So the
logic that says we need to give them immunity about the past so
that they'll cooperate in the future makes no sense, because
we're telling them to cooperate in the future not if they get
another plea that the common law requires them to cooperate,
but only if the government meets the standards for the
certification. So, I would urge you to build on what the Senate
Intelligence Committee did and add to those provisions.
Another very important provision, in my view, is the
question of how you avoid them using this when the real
interest is a U.S. person. Again, I think we had very important
testimony from the Justice Department saying that when a U.S.
person becomes of interest to the intelligence community, we
need to get a warrant from the FISA court, and we want a
warrant because we want all of his conversations.
That is the language that is in the House bill. The House
bill says that when a person in the United States becomes--a
significant reason to do the surveillance is because you want
information about a person in the United States, you need to
get a warrant from the FISA court. I would urge you to add that
to the bill. It changes nothing. It's exactly the assurance you
were given from the Justice Department. But it makes it a
statutory requirement and puts the FISA court in the process of
making sure that when the purpose is to learn about an
American, a person in the United States, then you need a
warrant.
Finally, more generally, I think you do need to give the
FISA court some additional leeway so that it can supervise the
process. As we heard in one of the exchanges, the way the bill
is written, even if the FISA judge decides that the
minimization procedures are being violated, there's nothing he
can do. Now, I think a judge would say it doesn't matter; if
this is before me, I'm going to decide it. But I think Congress
ought to make it absolutely clear that the FISA court has to
supervise all of the requirements of the statute.
Thank you.
[The prepared statement of Dr. Halperin appears as a
submission for the record.]
Senator Feinstein. Thank you all very much. Dr. Halperin,
you speak very quickly, and I think very slowly, so we've got a
little point here. In looking at your point on the warrant
accompanying the certification with respect to the existing
FISA law, and I'm looking at the law, it would seem to me, if
one just added a few words to say that the warrant essentially
must accompany--it's Section 2511(2)(a)II: ``Notwithstanding
any of the providers of wire or electronic communications
services or officers, agents, landlords, custodians, other
persons are authorized to provide information, facilities, or
technical to persons authorized by law to intercept wire, oral,
or electronic communications, or to conduct electronic
communications as defined. . .only if such provider, its
officers. . . have been provided with a court order directing
such assistance.'' So we would only have to add one word,
``only''.
Dr. Halperin. Well, I think ``only'' is important, but you
certainly could add it. The other change I think you make, and
need to make, and it's one of the four I lay out in my
testimony, is indeed which talks about a certification as the
alternative to the warrant. It says that ``no warrant or court
order is required by law.'' I think you need to say ``by this
law'' and that ``all statutory requirements of this statute
have been met, and that the specific assistance is required'',
so that you make it clear that a certification has to be based
on a specific provision.
For example, you say in an emergency you can go by a
certification, or for the least--in the original FISA you can
go by a certification. So I think with those changes in these
words, you would eliminate some ambiguity, and I suggest
specific language in my testimony.
Senator Feinstein. Thank you.
Mr. Philbin, what do you think of that?
Mr. Philbin. Madam Chair, I am not sure, responding on the
fly, that I have a very well thought out response. But it is
certainly true that the interaction between 18 U.S.C. 2511 and
FISA is complex and that is the key for determining how
effective any exclusivity provision is going to be, which I
understand to be your concern. I think it would be a mistake to
change the provision in 2511(a)(2) to restrict the way that the
certification immunity there is provided. I think that that's
been in the law for a long time. It's been in the law for a
long time for a reason.
Senator Feinstein. Except now the terrorist surveillance
program, all of it, is under FISA, you know. One doesn't know
what the court would have done way back when, but it certainly
was worth a try, which didn't happen. It seems to me that what
Dr. Halperin has suggested, and in a sense Mr. Black suggested
it as well, is really the way to handle this, that the
Presidential certification doesn't necessarily provide the
guarantees to the telecom--it certainly doesn't this time, and
I've read it--so therefore it seems to me the court does
provide the guarantee to the telecoms and the court does
provide the guarantee to the individual citizen. So why not do
that? Because one of the things we're going to try to do, I
believe, is put as much of this type of intelligence collection
under FISA as possible.
Dr. Halperin. Could I just add one point?
Senator Feinstein. Sure.
Dr. Halperin. I think I very much agree with that. That's
why I urge you to require that the government get a FISA order
before it begins the surveillance authorized by this program.
The government has now conceded a major role for the FISA
court, and provided you have an emergency provision, I see no
reason why you should not say, go to the court first and get
this warrant, precisely because it then says to the court--it
says to the providers, if there's a warrant you do it, if
there's no warrant you don't do it.
Senator Feinstein. And the court will give what I call a
program warrant.
Dr. Halperin. Right. Exactly.
Senator Feinstein. So that's what you're looking for.
You're looking for the court oversight, and then the court can
set the strictures, say I want you to report to me every 3
months, every 30 days, whatever it is. But the court then can
provide oversight protection. I don't think it hobbles the
executive at all.
Dr. Halperin. I agree.
Senator Feinstein. Does anybody differ with that? My time
has almost run out.
Mr. Philbin. I think it is certainly an improvement in FISA
to ensure that the court can provide programmatic approvals. I
don't think--my personal view is that it is impossible to
predict now every exigency of the future that may arise. I
think that the legislative scheme--what you're talking about
here is limiting the immunity, to cut down on the immunity in
this 2511 provision going forward so that it specifies only
certain certification, the specific certification in FISA or
something to that effect, or a court order.
I can see that if the objective is to provide the immunity
only where that kind of piece of paper is given, that it will
achieve that effect. But I don't think that it is possible to
predict now every exigency that will arise in the future and
say that FISA is going to have all of that covered.
Senator Feinstein. Well, I guess that's where I really
disagree with you. I mean, I think we've reached a stage, after
the Shamrock investigation, the FISA bill, the prohibitions in
FISA, the fact that here it happened, the executive made the
decision not to go to the court--they didn't go to the court
for a substantial period of time. They stopped the program,
obviously feeling that it was legally vulnerable, and then they
went to the court. I think that's a big lesson for us in
drafting legislation to prevent this from ever happening again.
My time is up.
Senator Specter?
Senator Specter. Thank you, Madam Chairwoman.
Mr. Black, I note that you worked with Secretary Kissinger
during the Nixon administration. I think it may have been about
the same time that Mr. Halperin was under surveillance.
Dr. Halperin. I was also working with Mr. Kissinger in the
Nixon administration.
Mr. Black. And I should clarify, I only joined when
President Ford took over.
Senator Specter. You were working with Mr. Kissinger, too?
Dr. Halperin. When he was the Director of the National
Security Council in the first 9 months of the Nixon
administration.
Senator Specter. Was Mr. Black under surveillance when you
worked for Secretary Kissinger?
Dr. Halperin. I couldn't reveal that.
Mr. Black. I should clarify, I only joined that
administration under President Ford.
Senator Specter. Mr. Black, was Mr. Halperin under
surveillance when you worked with Secretary Kissinger?
Mr. Black. I'm glad to say I worked on nuclear
proliferation and other related issues, so I have no idea. But
I really only joined the administration following President
Nixon's resignation.
Senator Specter. Did you enter a general ``not guilty''
plea?
Mr. Black. Definitely ``not guilty''.
Senator Specter. Mr. Philbin, why not indemnification?
First, let me congratulate you for standing up as Mr. Comey
lauded your performance under difficult circumstances.
Mr. Philbin. Thank you, sir.
Senator Specter. That is most commendable and rare. So,
thank you. But why not? Why not indemnification? Will there be
realistic losses to the government by these lawsuits which will
be defended with every procedural device known?
Mr. Philbin. I don't think that the problem with
indemnification as a solution is ultimately the payout of
money. That's not the concern. The problem with indemnification
is that the lawsuit still has to proceed with the carrier as
defendant, so the carrier is bearing all the burdens of
litigation, which are significant.
Senator Specter. But there is a Motion to Dismiss on
grounds of state secrecy. The carrier never appears.
Mr. Philbin. And if state secrets had really been a cure-
all, a silver bullet for these cases, they would be gone by
now, I think. I mean, they've been pending for 2 years.
Senator Specter. Well, what's happening with it? Anybody
collected anything?
Mr. Philbin. That's part of my point, Senator. It's not the
money that is really the problem here. It's part of the
problem, but it's the burden of the litigation itself. The cost
of going through the litigation itself, reputational and other
harm to the companies of going through the litigation, and
damage to the United States in the form of potential leaks of
national security information during the litigation. And--
Senator Specter. What information is going to be disclosed?
We couldn't even get it disclosed to the Chairman of the
Judiciary Committee.
Mr. Philbin. That, Senator, though, was based on a decision
of the executive, that the executive was in control of. This
will be a decision by an Article 3 judge, and there's one
Article 3 judge that, in one of the cases, already rejected the
assertion of the state secrets privilege because a certain
amount of what has become known as the terrorist surveillance
program was already publicly described. And--
Senator Specter. Well, the Article 3 judges aren't always
right, but I think they've traditionally provided good balance.
I only have a minute and 40 seconds left, and I want to ask
Mr. Halperin a question or two. Mr. Halperin, what about
Article 2 power? The Foreign Intelligence Surveillance Act
provides the exclusive remedy, but doesn't the President have
Article 2 power, as Circuit Courts have said, weighing the
national security interest versus the invasion of privacy that
supersedes the statute?
Dr. Halperin. Well, first of all, almost all of the Circuit
Court decisions are pre-FISA decisions and held that in the
absence--
Senator Specter. Almost all, but not all.
Dr. Halperin. Not all of them. But there are one or two in
the other direction as well. So I think the Supreme Court has
never spoken on this, nor come close to speaking on this
question. But I think--
Senator Specter. I'm not talking about the Supreme Court
speaking, I'm asking you to speak. Isn't there Article 2 power?
Dr. Halperin. I think that there may be some extreme power,
in some extraordinary situation when the country is directly
under attack, for the President to act. I don't think you can
take--as you say, and as the Senate Intelligence Committee
says, whatever power there is, you can't take away, nor can any
President promise that future Presidents won't claim it.
But what I think the Congress clearly has the right to do,
is to educate the rules for the service providers. I think you
can lawfully tell a service provider that, you cooperate with a
warrant or a certification provided by this statute or the
Federal Government or the State government can put you in
prison.
Senator Specter. Mr. Halperin, I have only 13 seconds left.
Dr. Halperin. I'm sorry.
Senator Specter. So I'm going to ask a question before my
red light goes on. You want to limit it to counterterrorism
only instead of all foreign information gathering. Why
shouldn't we try to listen to what Iran is doing about a
nuclear weapon?
Dr. Halperin. We should try to listen to that, and we've
listened to that under FISA. We listened during the cold war to
the Soviet Union and we had successive directors of Central
Intelligence saying those rules worked. There are different
problems when you're dealing with terrorists who are trying to
conduct operations within the United States. I think Congress
should be open to amendments that respond to the specific
problem of terrorists in the United States. But the old rules
were good enough for the Soviet Union. I think they should be
good enough for information about Iran or other foreign powers.
Senator Specter. Well, I have many more important questions
to ask, but I believe in observing the red light.
Senator Feinstein. Wow.
Senator Specter. And I will say only one thing in
conclusion. I regret the ways of the Senate that keep you
sitting here for several hours, and then only have two of us
appear to question you. I regret that. But it is a very busy
Senate and this happens, regrettably, all the time. So although
you have not been treated as you should be, you have not been
discriminated against. It happens to everybody on the second
panel.
[Laughter.]
Thank you.
Senator Feinstein. I'd like to say thank you. I think your
testimony was very important and gave us some good ideas. So,
thank you very much.
The hearing is adjourned.
[Whereupon, at 12:58 p.m. the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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