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tv   Senate Judiciary Committee to Hold Hearing on Foreign Intelligence...  CSPAN  May 10, 2016 9:30am-12:01pm EDT

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aboriginal profits, studies the same aboriginal, speaks the aboriginal language, hebrew and bears the same aboriginal name israel as we did 3,500 years ago. whereupon, they came up to me and said, you know, we thought this was going to be be a blah blah lecture by another white man, welcome one aboriginal people to another. now, i want to tell you, this is not a story that i'm sharing only in the confines here of it. i repeated it again and again when i was minister of justice and attorney general of canada, not only because i felt it was making the case that had to be made about why aboriginal justice had to be a priority on our justice agenda, but the sub text of it is, i was also speaking out of the authenticity of my own identity. and i think we have to speak out
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of the authenticity of our identities, whatever -- i mean, jewish or otherwise, in that sense, we cannot compromise what we say or what we do on the alters of political correctness because at the end of the day, if you indulge political correctness too much, you end up becoming a bystander. and my whole plea today is for us not to be bystanders, but to be intervenous and that struggle for justice and as my mother would say in the best way to do it, is to struggle against injustice and remember that bold jewish proverb which applied to us all. when i say that jews are aboriginal people, i'm now saying arabs, they're also an aboriginal people, that's part of the difficulty of the struggle and why we'll have to frame an approach to it in terms of the principle of least
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injustice. that for another time. but the thing to remember always that and there's the ep graham that i always remember, that at the end of the day, truth and justice will. >> and live to capitol hill as the senate judiciary committee holds the hearing on the surveillance laws and issues of national security and privacy. this hearing just getting underway. thank you. >> before that he worked as u.s. attorney for d.c. and the first
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assistant attorney general for national general. he concluded the government service in 2008 serving as homeland security advisor to george w. in that capacity he coordinated the nation's counter terrorism homeland security infrastructure protection and disaster response and recovery efforts. he has an undergraduate degree from the university of virginia and his law degree from berkeley. the second witness, matthew olson, president of consulting at iron net cyber security from 11 to '14 he served as director of national count -- prior to that mr. olsen served as general counsel general executive director director of guantanamo task
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force and including serving as the deputy assistant attorney general overseeing national security division. mr. olsen is currently a lecturer, harvard law school on national security law and practice, undergraduate degree from virginia and university of virginia and law degree from harvard. our next witness, elizabeth goitein codirectors the security program, before that she served as consult senator fine gold on this committee as trial attorney in the federal program branch civil division department of justice, she has a law degree from yale law school. next witness, david madine. chairman of the private civil liberties oversight board.
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before that he was attorney fellow for security and exchange commission, special consult at consumer finance protection bureau from '02 to '12 he practiced law here from a firm here and from '92 to the year 2000 served as associate director for financial practices at the ftc. he has his under grads degree from ham shire college and law degree university of chicago. final witness, rachel brand, ms. brand has served as a member of the privacy and civil liberties oversight board since 2012 has served as vice president and chief council for regulatory litigation at the u.s. chamber litigation center and practiced law at two if i weres here in washington. she's also served as assistant and attorney general for legal policy at the department of justice and associate consult in the office of white house
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consult. she has her undergraduate degree from university of minnesota and her law degree from harvard and most importantly, she's been an intern in my office and she from iowa. yeah, you ought to clap for that. . i'm going to make a statement now and hopefully senator will be here and then we'll have the witnesses. i just introduced them to use up time. almost exactly six months ago our nations oldest ally, france, suffered the deadliest attack on soil since world war ii. in a series of coordinated suicide bombings, mass shooters and hostage taken across paris, isis killed 130 people, injured 368. the president of france referred to that as an act of war.
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months or so later in december, the united states sustained the most deadly terrorist attack on our soil since september 11th, 2001 in san bernardino, as you know, a couple inspired by isis opened fire on an office holiday party, killing 14, injurying 22 more. few months after that, isis struck again on mark 22nd and lost a series of coordinated bombings at an airport and train station that killed 32 and injured 300. these attacks under score that one of our core responsibilities of our government is to ensure that those who protect us every day, including the intelligence community have the tools to keep us safe and these tools must adapt to both the changing technological landscape and the
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evolving security threats that we face. at the same time, the rights and liberties and in our constitution are a constant and study of this committee, in particular, to be vigilant in ensuring that they endure no matter what. sections 702 of the amendments act which provides the government the authority to collect the electronic communications of foreigners outside the united states with a compelled assistance of american companies sits at the intersection of these responsibilities. in 2008, after much debate and discussion, this will always pass by congress and signed by president bush. and in 2012 then, it was reauthorized by congress without any changes and with president obama's strong support. from all accounts, it's proven
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to be highly valuable and helping to protect the united states and our allies. moreover, the privacy and civil liberties oversight board, the foreign intelligence surveillance scorer and many other federal courts have found section 702 constitutional and consistent with the fourth amendment. the questions and concerns persists for some on several liberties. most of these concerns relate to the treatment of communications collected when it turns out that it targeted foreigner is in contact with somebody inside the united states. but, of course, these are also situations where the program can be highly valuable by letting our government know if a foreign terrorist plot might reach ashores. so this committee's oversight of this law should continue to be robust and although the
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amendments act doesn't require congress to reauthorize it until the end of 2017, i'd like to begin the conversation about it well in advance of that reauthorization. that's why i requested that the committee receive a classified briefing from the obama administration on section 702 back in march this year. it's why i'm so glad to have such a distinguished panel here with us today to talk about those issues. and that's why i'm sure we'll continue this public dialogue with the administration and others in the future. as i mention, section 702 allows for the targeting of foreigners located overseas for surveillance. the statute, specifically, prohibits the targeting of anyone within the united states or any u.s. person, wherever
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that person is located around the world. and it's also prohibits what's called reversed targeting, that is targeting someone outside the country for the purpose of targeting a specific person who was located inside. under the statute, the court must approve targeting and minimumization procedures to ensure that only appropriate individuals are subject to surveillance and that limit -- and that limit the handling and the use of any communications so collected. and implementation of the statute is overseen by all three branches of government, including the appropriate inspector's general. now, it's true the human error has led to mistakes in implementing the law over the years. but as also significant that no internal or external review of section 702 program has ever
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found any intention. moreover, section 702 has been highly important to our national security. the privacy and civil liberty oversight board found unequivocally that it has helped the united states learn more about the membership, leadership structure priorities tactics and plans of internal tariff or organizations. it has enabled the discovered of previously unknown terrorist operatives as well as locations and whom suspects already known to the government. it is led to the discovery of previously unknown terrorist plots directed against the united states and foreign countries enabling the disruption of those plots. the board came to these conclusions about the value of section 702 programs after conducting a lengthy, in depth
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review of it the board found it was constitutional and authorized by statute. board imposes a number of recommendations to help improve the privacy and civil liberties protection of 702. according to the board's most resent assessment report, just in this february, all of the recommendations have been implemented in full or in part our the -- relevant government agencies has taken significant steps among adoption. that's encouraging news among other things about the status of these recommendations today as we discuss reauthorizing this important national security authority what e think we'll do, we'll start with the first witness, mr. wayne stain and senator -- when the senator comes, we'll stop and let him give his opening statement.
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would you proceed, please, sir. >> thank you, chairman. members of the committee, it's an honor to be here with you today to support the authorization of the amendment act and discuss the issues that it raises with my distinguished copanelist. since the attacks of september 11, 2001. we did engage in methodical effort to enhance the capabilities and in particular to build a legal and operational framework that affords us the ability to intercept. the centerpiece of that effort has been congress's decision to modernize our national security surveillance efforts bypassing the amendments act faa in 2008 and reauthorizing it in 2012. it is important at the outset to remind ourselves why it was necessary to modernize the surveillance act in the first place. as you know, it was passed in 1978 after the church committee hearings and disclosed purr sueded congress that the domestic efforts should be subject to process of judicial
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review and approval. to effectuate that objective, congress passed which established the surveillance corp. or the fisa corps and requiring approval from that court. in -- congress differentiated by the technology of the communication in a way that effectuated its intent to require court approval for the interception of domestic communication where is the fourth amendment applied but to carve out from the court approval requirement, those communications that were foreign based where the fourth amendment does not apply. however, with the change in communications technology and the intervening year, that carve out started a break down with the result of the government found itself having to expend significant manpower generating fisa court applications for surveillances against persons who were outside the united states. the various category that congress specifically intended to exclude when it imposed the court approval requirement in
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1978. that situation became untanble with the dramatic increase surveillance efforts after 9/11 to its enduring credit, congress stepped up in the spring of 2007 undertook thorough analysis and debate how best revised and ultimately passed in july 2008 in its reauthorization in 2011. and on both occasions members from both parties worked in bipartisan fashion to craft a law that was significant step forward for both snanational security and liberties. first, and most significantly, it authorized the court to approve surveillance of categories of terror suspects without requiring government individualized application to each particular target. it describes a news streamline process which categories over seized product pursuant to
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strict procedural requirements and subject both to review and approval by the court and to substantial regimes by a variety of government entities to include the attorney general, director of national intelligence, of the relevant agencies the court in the intelligence and judiciary committees of congress. in addition to providing this authority and oversight. the faa also added to protections of u.s. persons in a very significant way, by imposing for the very first time the requirement that the government obtain an individualized order from the court whenever it undertakes surveillance of u.s. person that person is outside the u.s. in some, the amendments act was a very well calibrated piece of legislation. it provided the government with the authority it needed but did so with careful eye on the importance of oversight and privacy rights of u.s. persons. since its implementation, faa authorized vur va lens and understanding the threat that is we face. that was the case when i was reviewing faa recording as
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homeland security advisor in 2008 and it is still the case today, as you know from your briefing the other day. importantly, besides being implementing effectively, it's been implemented responsibly as evidence by the findings that there have been no known incidents of intentional misuse. it's i ask congress to focus on the three considerations laid out in my remarks, one the vital importance of the faa surveillance authorities to counter terrorism efforts. of both parties crafted and limit this authority when they passed the faa in 2008 and reauthorized it four years later and the findings that this authority has been implemented great effect in compliance of the law and constitution. in addition to these considerations we want to focus on one other important consideration with threat we face today. giving that continued threat now is not the time to weaken or scale back on critical intelligence authority, to the contrary, now is the time to
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ensure community operators have the authorities they need to protect our country and time to reauthorize the statute it's done so much to protect our people for the last eight years. thank you for the opportunity to speak about this important issue and look forward to our questions. >> thank you. before mr. olsen goes, i will ask lee tov give his opening remarks at this point. >> thank you, mr. chairman, and i mentioned earlier i was -- we had conflicting schedules this morning, but it is very important hearing, i think a year ago ago this week the house of representatives overwhelmingly passed usa freedom act several weeks later the senate followed suit. that marked the first major over haul the government surveillance authority in decades. now, today we're examining the amendment act often referred to as you noted, section 702, this
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law expires at the end of 2017, so i'm glad we're getting an early start of this. i hope we can avoid the needless exploration of authority saw last year when the leadership would not bring up the usa freedom act until after the expiration. i'm also glad, i aplaid you on this, mr. chairman, that we're holding this hearing in the open so the american people can be part of this conversation. when congress last reauthorized the fisa amendments ablgt in 2012, this type of discussion was not possible. almost everything about its implementation remained classified. since then, the obama administration has declassified much about the government's use of the law. so the transparency put in place for the usa freedom act are prompting our efforts. we have a lot of work to do. we're still missing a lot of
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fact facts about section 702 implementation. additional reform to protect america's privacy. we also have to restore global trust in the u.s. technology industry. not a minor thing. section 702 is an important tool for our national security agencies. we all acknowledge that. but it's also extremely broad. while section 702 is aimed at surveillance of foreigners outside the united states, it sweeps up a sizable amount of information about innocent americans who are communicating with foreigners. so the authority requires strong oversight and transparency and safeguards to protect the american people. 2008, again 2012, i opposed the fisa amendments act because it lacked these safeguards. despite these concerns about americans' communications being swept up, we still do not know how much of our data is
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collected under this authority. i understand this intelligence community is developing a technology to estimate, that and it's long overdue, but i applaud this happening. it's all the more significant because both intelligence and law enforcement agencies search this data for information about americans without judicial approval. and these backdoor searches i think raise some serious constitutional questions. i ask consent to enter into the record written testimony from several organizations raising additional concerns including third wave electronic frontier. >> without objection, they will be included. >> i'll conclude with this. i know we'll hear about the importance of this authority to our national security, and i understand that. it's a conversation we should have.
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we should also ep sure the surveillance program is operated under section 702 respect the other part of american security, our liberties, and our constitutional values, because unless they line with that, then it's a false sense of security. i look forward to hearing from our witnesses. >> thank you. mr. olson? >> thank you. i'm honored to be here this morning to talk about this important issue. as the former director of the national counterterrorism center, i can attest to the value that faa has provided to our national security. it significantly has contributed to our ability to prevent terrorist attacks inside the united states and around the world. also, as the former general counsel of the national security agency and as a former official at the department of justice's national security division, i was responsible in those jobs for ensuring that the law was implemented in a way that
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complied with the law, the constitution, and protected the privacy and civil liberties of americans. in my brief remarks this morning, i will focus on the operational aspects of section 702 and the value that this authority has provide to our counterterrorism efforts. i think to start, to appreciate the importance of section 702 it is helpful to describe briefly the threats that the united states faces from terrorism. over the past several years the range of terrorist threats we've faced from al qaeda-linked groups has expanded and become more diverse. by any measure, the so-called islamic state or isis presents the most urgent threat. its governing territory, the allegiance of terrorist groups across north africa and the middle east. its sanction chair in syria and iraq has provided the ability to recruit, train, and execute external attacks like in paris and brussels. it also has the ability to
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incite others around the world as we've seen? san bernardino. isis is not the only threat we face. fighters have traveld to pakistan to take advantage of the permissive environment there. they are seeking to carry out attack against the west. al shabab remains a safe haven. boko haram. now an ally of isis continue to maintain their base of operations in north and west africa. al qaeda core continues to support attackinghe west. i want's vying with isis to be the leader of a global jihad. the core leadership of al qaeda wields substantial influence over affiliated groups in particular al qaeda and the arabian peninsula. on three occasions in the last several years, they sought to bring down an airline headed for the united states. there's every reason to believe they still have the intent and substantial capability to carry out such an attack. against this backdrop of a dynamic and lethal terrorist threat the ability of the united states to conduct surveillance under section 702 is vital to
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our security. as the director of nctc i relied on daily intelligence briefings from information collected by section 702. it was instrumental to our efforts to discern the intentions and capabilities of our terrorist adversaries contributing both to strategic judgments sand tactical insights. two specific cases now declassified highlight the section of section 702. in september of 2009 we used it to target an e-mail address used by an al qaeda courier in pakistan. they discovered a message sent to an individual in the united states in colorado. he was urgently seeking advice on how to make explosives. further investigation revealed he and a group of operatives had imminent plans to detonate explosives in the new york subway. the fbi and local law enforcement arrested him and his confederates and stopped the attack before it could occur. in another case, nsa conducted surveillance of an e-mail address used by a suspected extremist in yemen.
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this surveillance led to discovery of a connection between that person and an unknown person in kansas city, missouri, later identified. follow-up investigation revealed he was connected to other al qaeda social securitys inside the united states who were part of an earlier plot to bomb the new york stock exchange. these individuals were prosecuted and pled guilty. in the context of these cases, it's worth emphasizing the role of incidental collection under section 702. in these cases the government collected the communications of operatives inside the united states directly as a consequence of their contacts with section 702 targets located overseas. this was critical to the disruption of these plots and to the arrest of al qaeda operatives here. so-called incidental collection led to the initial identification of zazi and hue sanny and enabled the government to use these investigative tools and others to advance their investigatio investigations. beyond the united states, section 702 has proven to be invaluable in supporting the
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counterterrorism efforts of our allies around the world. finally, in describing the value of section 702, it's important to explain why this is uniquely important. as the deputy assistant attorney general from 2006 to 2009 overseeing doj's foreign intelligence surveillance programs, i experienced first hand the consequences of the pre-faa approach in some cases simply not possible under that prior approach to demonstrate probable cause at a foreign target overseas was an agent of a foreign power. in short, section 702 authorizes the government consistent with the constitution to obtain critical intelligence about terrorists and other targets that it simply cannot obtain by other means. in conclusion, i would say the authority congress established under section 702 has played an indispensable role to protecting the united states from terrorist threats. i look forward to your questions. >> thank you.
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chairman, members of the committee, thank you for this opportunity to testify on behalf of the brennan center for jus sis. our nation faces real threats from international terrorism. your challenge and your responsibility is to ensure that these threats are addressed not only effectively but in a way that's consistent with the constitution, the privacy interests of law-abiding individuals, and our nation's economic interests. section 702 in its current form does not accomplish those aims. technological advances have revolutionized communications. preem communicating at a scale that was unimaginable just a few years ago. international phone calls, which were once difficult and expensive as i remember, are now as simple as tapping a screen, and the internet offers countless additional means of international communication. globalization makes these exchanges as necessary as they are easy. as a result, the amount of information about americans that
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the nsa intercepts even when targeting foreigners overseas has exploded. but instead of shoring up safeguards for ordinary americans and foreigners who communicate internationally, section 702 did the opposite. it eliminated the requirement of an individual court order to collect communications between foreign targets and americans. it also eliminated the requirement that the target be afill yalted with a foreign power or terrorist group. the government today can target any foreigner overseas regardless of whether he poses any threat to the united states and obtain his communications with americans. while the government must certify ta acquiring foreign intelligence is one of its purposes, the law defines foreign intelligence broadly enough to include conversations about current events. moreover, the government has interpreted the law to allow collection of communications not
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just to and from the target but about the target. this legal sea change underlies the nsa's upstream collection program, whereby a huge proportion of communications flowing into and out of the united states are scanned for selectors associated with designated foreigners and picked up. using upstream collection and prism, which obtains stored e-mails from u.s. companies, the nsa collects more than 250 million internet communications a year. that undoubtedly includes millions if not tens of millions of americans' e-mails, and, as we know, wholly domestic communications are included as well. to call this kind of mass collection targeted elevates form over substance. there are deep constitutional concerns with the surveillance. the fourth amendment may not apply to foreigners overseas. but when a law is designed to
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collect communications between foreigners and americans, the fourth amendment is very much in play. and when the fbi searches through those communications for evidence to use against americans in criminal cases and then fails to notify the defendants how it obtained the evidence, it drives a hole the size of ft. meade through the fourth amendment. cobbs tugs nal concerns aside, the mass collection of communications comes with significant risks and harms. the opm fiasco reminded us how vulnerable government databases are to foreign governments and hackers. any massive database that contains sensitive information about americans carries with it the risk of abuse or negligent mishandling by this or some future administration. overbroad surveillance also threatens our economic interests by impairing the legal and
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practical ability of u.s. technology companies to do business with customers overseas. we're told that these risks are justified because section 702 has helped to stop terrorist plots. but the question isn't just whether section 702 is useful. we must also ask whether effective surveillance can be conducted in a manner that's less intrusive with fewer costs to our liberties. one final point. within constitutional balance set by the courts, americans should be able to decide for themselves how much surveillance is too much. but to do that, we need information. five years after senator widen first requested an estimate of the number of american communications collected under section 702, we're still waiting. congress and the public need this basic information for the democratic process to work. thank you and i look forward to
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taking your questions. >> thank you very much. chairman grassley, ranking member lay lei hee, members of the committee, thanks for the opportunity to testify today on the reauthorization of section 702 of the fisa amendments act. in 2014 the oversight board i chair issued an extensionive report on section 702 and how it operates in part to foster just the type of democratic debate that we're having today. in short, section 702 surveillance program collects the contents of communications of non-u.s. persons outside the united states where there's a foreign intelligence value. as has been mentioned earlier, it's proven to be a valuable intelligence tool of u.s. government thwarting terrorist plots and providing valuable information to u.s. government decisionmakers. section 702 has two components, prism and upstream. in prism, the government collects the contents of targets' e-mails and other
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communications from electronic communications providers. while the targets are non-u.s. persons, from time to time those non-u.s. persons communicate with americans and as a result the government is collecting large quantities of americans' communications. these are incidental communications because the u.s. persons are not the targets and it's known in advance that americans' communications will be collected. in contrast, the upstream program, the government gets access to the telecommunications backbone over which communications transit and can collect the contents of e-mails and phone calls. by using about collection, the government doesn't look just in the header of to and from of an e-mail but also scans the contents of the e-mail for a targeted selector. as a result, if liza and i were communicating by e-mail and i sent her a message with an e-mail address from my uncle in turkey so she has a place to stay while traveling in turkey, if my uncle's e-mail address is one of the 94,000 selectors on
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target in the 702 program, my e-mail to liza could be picked up and copied into an nsa database, even though neither one-v of us is expected of wrongdoing and my uncle isn't but may have valuable foreign intelligence information. if this program is continue, it should have privacy and civil liberties, particularly where u.s. perp persons are implicat. we should have three changes. first, many information collected under section 702 have nothing to do with terrorism and crime. they include love letters, discussions of physical and mental health. u.s. persons queries of the database are therefore capable of revealing a significant slice of an american's personal life. this is particularly the case for americans who correspond frequently with foreigners including relatives, friends, and business associates. since no warrant was ever issued for these communications, which are covered by the fourth amendment, there should be some form of protection. before querying these databases
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for a u.s. person identifier, intelligence agencies and the fbi should be required to submit their u.s. person identifier queries to the fisa court for approval other than in exigent circumstances. most important here is there be an impartial light tenured judge has a final say over whether americans' personal communications are collected and reviewed. second, upstream and about communications raise two potential concerns. one is the collection of purely domestic communications american to american, and the other is overcollection of communications. building on the recommendations put forward in the 702 report as technology evolves, the government should be able to evaluate the effectiveness of screening communications and determine ways of separating out various types of about communications so we can have policy decisions as to whether all should be collected. third, a large number of u.s. persons incidental communications are collected under 702 as i mentioned, but
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how many? in order to have an informed democratic debate about the scope of this program, it's important that citizens and members of congress know how many americans' communications are being implicated in this program. i've no reason to doubt that the government has encountered difficulties in quantifying the number of u.s. persons' record it incidentally collects. nevertheless, i urge this committee to acquire all agencies collecting information under section 702 to develop a manageable way to gather statistics and provide them to congress on a regular basis. i hope that congress will use the reauthorization process as an opportunity to enhance privacy and civil liberties protections in section 702 while maintaining a program that has provided enormously valuable information to protect your country from terrorism. i appreciate the opportunity to present my chew voous to the committee. thank you. >> members of the committee, thank you for the opportunity to testify today about section 702
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of fisa. i serve as a member of the privacy and civil liberties oversight board. although you, mr. chairman, and other witnesses have already discussed some aspects of the 702 program, it has been so widely misunderstood that i think a few key points are worth stressing. the first the limits under which the 702 program operates. section 702 as the p-club unanimously found, is a targeted collection program. it does not authorize bulk surveillance. the government may target only non-u.s. persons located outside the united states, which means kit never target any u.s. person located anywhere and it can never target anyone inside the united states. and the government cannot target just any foreign person located outside the united states. kit target only persons likely to communicate information about foreign intelligence topics approved by the fisa court. and in fact the nsa targets only a tiny fraction of a percentage point of internet users in the world. although u.s. persons can not be
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targ targeted, some u.s. person communications will be incidentally collected. if a target communicates with a u.s. person, for example, that communication will be collected. this does not mean that all of that u.s. persons communications will be collected but only his communications with the target. of course as chairman grassley noted if those communications revealed a terrorist threat inside the united states, they would be among the most important communications collected under the program. but because this has privacy implications for some u.s. persons, the statute requires the government to operate the program under strict rules that minimize its privacy impact. the second major point is that section 702 is unquestionably a highly effective source of foreign intelligence. mr. olson and mr. wednesday have already discussed this. the p-club also unanimously found that 702 collection has the helped disrupt terrorism plots, identify individuals involved in terrorism and understand terrorists' operations, priority, strategies, and tactics. it concluded it is reasonable
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under the fourth amendment. the board did recommend refinements to the program but did not find them to be legally required. the board did not recommend any legislative changes to section 702. it's worth noting the board's five members were unanimous in the reports and conclusions and unanimous in all of our recommendations on how to improve the privacy protections and the program's rheaumes. the administration has implemented many of those recommendations and is working on the rest. one issue that divided the board concerns u.s. person queries. particular concern has been raised about u.s. person queries by the fbi so, i'd like to address that for a moment. at the fbi a typical early stem in a criminal investigation is to query the fbi's databases to see what the fbi already knows. these queries do not distinguish between u.s. persons and others because nationality is normally irrelevant to a criminal investigation. one of the fbi's databases contains a subset of the information collected under section 702, though none of the data collected upstream. so none of the about
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communications that were referenced. an fbi query may include this database along with other databases even if the crime being investigated does not relate to national security. however, it is extremely unlikely that an fbi query in a non-national security investigation will hit on 702 data. some have suggested requiring the fbi to get court approval before conducting a query of 702 information and an investigation of a non-national security crime. the board did not recommend this approach and i think it would be a mistake. in the interest of time, i'll mention just one of several reasons why. requiring judicial approval for fbi queries would be a step toward rewriting the information sharing wall the government has worked so hard to tear down since 9/11. an investigator looking into a non-national security crime likely would not expect to find a connection with 702 information. but if such a connection existed it would be extremely important to know. the fbi's procedure should not limit queries in a way that would prevent the government from discovering these potential
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connections. limits should be placed not on queries of information but on the use of that information. the law should and does limit what can be done with 702 information if it is responsive to a query. this includes, for example, limits on wo can view responsive information, high-level approval requirements before that information can be used in any criminal proceeding, and notice to a defendant if his communications are used against him. i believe these protections strike the right balance between getting the benefit of information of important intelligence collected under 702 and protecting the interest of those whose communications are collected. thank you. i'll look forward to your questions. >> i'm going to ask mr. weinstein and mr. olson, based on your experience serving government, what else can you tell us in this unclassified setting about the value of 702
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surveillance and how it's been used and how would it affect your intelligence capability if congress failed to reauthorize? >> i'll be brief and turn it over the mr. olson who has more current information since he recently left government. but, look, i was the homeland security adviser in 2008 when the fisa amendments act was passed. at that point, as you'll recall, the intelligence community was already collecting surveillance intelligence through the protect america act, which is sort of the stopgap legislation that preceded the fisa amendments act. and you can see even at that point the richness of the information that was coming into the reporting that got all the way up to the white house. you could tell it was really a major step forward. as i mentioned in my remarks earlier, that's critical, and it's a critical remedy for what the problem that arose with the changing technology over the
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time between 1978 and when the fisa amendments act was passed in 2008. if we were to go back to that point, we'd be in the same situation where we have way too many surveillances that are critical to carry out and not enough manpower to do individualized orders for each of them. >> mr. olson? >> i essentially agree with mr. weinstein. i was in the justice department before the fisa amendments act was passed. we were at that time having a very hard time keeping up with the number of terrorist targets that we were trying to track who were not u.s. persons who were located overseas. we were seeking individualized warrants. the system was overwhelmed with the effort to try to get individualized probable cause warrants for individuals who are not entitled to that level of fourth amendment protection. the fisa amendments act changed that in a way consistent with the constitution to go back to that especially in the current threat environment would, i'm confident, overwhelm executive branch and judicial resources. i also will say in terms of the
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value today my last post at the national counterterrorism center, i saw the value almost on a daily basis of faa reporting. it was typical for analysts to in their report say this came from faa or 702 collection. and the p-club cited 30 cases in their report based on their classified review or their ability to see classified information. 30 specific cases in which section 702 was the initial catalyst that identified previously unknown terrorist operatives or plots. that's 30 cases that the p-lub was able to cite that were otherwise unknown. >> miss brand, about some people suggesting that we get judicial approval or even a warrant before querying the database of 702 with a u.s. person's phone number of e-mail. in your testimony a moment ago you mentioned one reason you
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thought this wasn't a good idea. are there other reasons you can describe for us in your view makes such requirements problematic? >> thank you, mr. chairman. yes. i'll mention two. one is that i'm not sure it would further protect privacy to do that, and number two, i'm not sure it would be workable. with respect to privacy, a query is a relatively unintrusive tool. it's less intrusive for the government to look at the information it already has than to go out and collect more information about a person. but if it required judicial approval before a query could be conducted the government would have to assem ability package for the fisa court, which would presume pli require them to go out and get more information, which means you would require more intrusive means to justify the less of a less intrusive means, which seems backwards to me. in terms of workability, the fbi does not distinguish between u.s. person queries and others because it's normally irel vant. they're doing a bank fraud investigation and want to see what the fbi knows about somebody, they're not going to indicate whether it's a u.s.
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person or not because there's no reason to ask that question. it's not clear how you could find a workable system of requiring judicial approval for u.s. person queries without requiring that for all queries. because the court process is cumbersome and time consuming that would likely prevent any queries. >> follow-up for mr. weinstein and mr. olson. based on your, appearance in law enforcement and the intelligence community, what would the operational effect be of subjecting these queries to judicial approval? >> i agree with miss brand. it's hard to predict, but it's certainly the case, having worked at the national security division, at justice, that would slow down the process of simply searching through information that was lawfully collected. the attorneys in the national security division working with whether it's fbi or nsa would have to compile applications to
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the court. in cases the court can move quickly, it has proven it can, but there's no doubt it would become a more cumbersome and slow process in instances where i'm confident that agility and speed is critical. so i think without really any gain from a privacy perspective and against a record that doesn't have any indication of abuse in terms of the current approach of allowing these agencies to conduct these searches without judicial approval. >> go ahead. >> thank you, mr. chairman. just to add to that, just to keep in mind that that kind of requirement is not in place for let's say information collected incidentally collected communications under title iii, which is the criminal wiretap statute. and so it's a bit ironic that you'd impose that requirement in the national security context where often you're trying to prevent something from happening like a terrorist attack, where speed is of the essence and not requiring it in a criminal
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context where speed is of less importance. >> senator leahy and then senator from texas. i'm going to step out for just a minute but you two go ahead. >> thank you. i think everybody wants to keep the country safe. i do appreciate numbers being tossed around here. i always worry, though, a what's behind the numbers. we heard from a different issue from the nsa about 52 attacks that their wiretap stopped. and then the numbers were always given until they testified in public and the 52 became a dozen, which became five, which became part of one after the fact.
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following up with an fbi investigation. at that time americans' privacy was protected because of the tough security measures nsa had. they weren't good enough to stop a 28-year-old from stealing all the information and bringing it to china and russia, but otherwise they were very protective of american rights. part of this worries me. i want us to be secure, but i also want -- we could be very secure if we put a tail on every single american and search every single american's computer and phone. none of us are suggesting that. i worry if we do parts of that. so let me ask, why do you agree with the review group that congress should require a court order based on probable cause?
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>> thank you. i think to understand what's so disturbing about backdoor searches, you have to look at what comes before them. in order to fit its way into the foreign intelligence exception as it's called to the fourth amendment and in order to avoid getting a warrant or getting an individual fisa order, the government has to certify to the fisa court not only that it's targeting a foreigner, not an american, not only that it has a foreign intelligence purpose, but also that it's not doing any reverse targeting, which means it has no intent to target any particular known americans. then having made that certification, as soon as the data is obtained, all three agencies can sort through the data, looking for the communications of the very particular known americans in which the government just disclaimed any interest. and the fbi doesn't even need a foreign intelligence purpose to do it. the fbi can search for evidence
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in criminal cases that have no national security or foreign intelligence component whatsoever. so this is a bait and switch that undermines the spirit if not the letter of the reverse targeting prohibition. and more important, it undermines the purpose of that prohibition, which is to ensure that section 702 doesn't become an end run around the fourth amendment's warrant requirement and around the fisa court's -- the fisa's individual warrant order requirement when an american is a target. and i would note one more thing, which is that the president's review group on intelligence communications technologietechn which included a former deputy director and acting director of the cia, former chief counterterrorism adviser to president george w. bush, recommended a warrant to search americans' communications. they were not trying to rebuild the wall. they were trying to protect
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americans from warrantless surveillance, and that's what closing the back door is about. some have argued we shouldn't worry because section 702 programs these minimization procedure procedures, limit the use and retention of information. i ask you and the professor, do you believe the current minimization procedures ensure the data about americans? is that enough? >> senator leahy, they don't. the minimization procedures call for the deletion of innocent americans information upon discovery to determine whether it has any foreign intelligence value. but what the report found is that in fact information is never deleted. it's sits in the databases for five years, sometimes longer. the minimization doesn't really
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address the privacy concerns of incidentally collected communications, again, where there's been no warrant at all in the process. and when the government shifts its attention from the non-u.s. person to the americans communications, there should be court approval in that exchange. as mentioned earlier in title iii there has been a warrant before the information was collected. in the united states, we simply can't read people's e-mails and listen to their phone calls without court approval, and the same should be true when the government shifts attention to americans under this program. >> do you agree with that? >> i do agree with that. i think that there's this idea that if the government has collected the information lawfully it should be able to use it for any legitimate government purpose. and whatever truth that may have in other contexts, it is clearly not the case with section 702 because congress has required minimization. minimization is the opposite of you can use it for any purpose you want. constitutionally it's not the case either because the reasonableness inquiry includes an assessment of what are the
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safeguards on americans that are sufficient. >> thank you. senator cornyn? >> well, thank you all for being here. i'm actually encouraged that everybody on the panel, including the people sitting up here, agree targeting foreign intelligence sources using section 702 has not only been demonstrated as constitutional but also as effective. and so the question to me is, do we want to somehow limit ourselves in terms of access toll foreign intelligence in a way that could make us less safe? that's an important conversation to have, but i'm pretty clear on where i come down. the concern is of course what's happening in syria and with the growth of the islamic state or dash or whatever you want to call them weather the meltdown in libya, where you're seeing a
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pathway of foreign fighters now making their way into europe where of course they don't need a passport to travel among various member states of the european union, and many of those countries have visa waiver programs with the united states, where people can gain access to the united states, or whether they can just, as in the case of san bernardino, radicalize people in place, although obviously the two individuals involved there had traveled to the middle east as well. so i think it's really important that we understand what the process is. obviously, a lot of oversight by the fisa court, which many of my colleagues say is very important to them, by the director of national intelligence, the odni, the department of justice. there's a lot of oversight here and a lot of effort to try to minimize theic pact on american citizens, although the fact of
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the matter is, as i understand under 702 that the only american citizens who will be impact eed this process without a court order will be those who are communicating with a known terrorist target overseas. now, that's not exactly an innocuous purpose, it seems to me. so, mr. olson, i wonder if just briefly you could talk a little bit more about what efforts have been built into the program to minimize the breadth of -- the sweep of this program in a way that might otherwise pick up american citizen communications in a way that really frankly the intelligence community could care less about. >> thank you, senator. and as you mentioned, one of the hallmarks of the legislation is that all three branches of government play a central role in ensuring that the law is implemented in a way that protects privacy and civil liberties. certainly the executive branch, the agencies that implement are the law are on the front lines of oversight and conformance.
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the fisa court plays a robust role. having been a federal prosecutor for years, i can tell you the court is not a rubber stamp. it is aggressive and assertive in its oversight of the cases it handles. and of course this committee and the intelligence committee plays a significant role. all three branches of government are involved in overseeing this authority. with respect in particular to u.s. person information and the minimization procedures as the p-club found, those procedures were consistent with the fourth amendment and consistent with the statute. in fact, that's the exact opinion that judge hogan recently reached last fall in a case that was declassified recently, an 80-page opinion by judge hogan finding that the government's recent certification was constitutional and complied with the law, and in particular that the use of fbi queries of 702, the issue we've been discussing, was also consistent with the law and with the constitution. >> the under the fourth
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amendment, the issue is whether the search is reasonable, right? >> yes. >> i think some people are suggesting there's some outright prohibition here, but under the protective mechanisms as you say built into the statute, courts have upheld access to the communication by an american citizen with somebody who we know is a target of -- for foreign intelligence purposes. let me just -- i know mr. madeen didn't mean this seriously, but he mentioned sweeping up love letters. my staff tells me that there was a significant case recently, the zazi case, where terms like wedding cake and marriage were used as code words that the terrorists used to plot attacks against the united states. i don't know, mr. olson, is that something you can talk to us about? >> certainly the zazi case was one of the key cases the government's referred to in the last three years of the --
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>> in other words, in our zeial to protect love letters we don't want to protect terrorists who use code words that might otherwise escape scrutiny by the intelligence agency. >> absolutely right. very brief example, hypothetical, two foreign targets in syria communicating with each other, targets of 70 2. hypothetical. say they share a passport photo of an american. that would be viewed by the nsa in the collection under 702. that passport photo could be innocent, right, just a -- two people sharing a photo of somebody they know. but it certainly would be of significant interest to the fbi and the nsa to not only collect that information incidentally about that u.s. person but then to be able to search 702 quickly to say, okay, who is this person, do we have other information in our 702 daxs and other databases. and i think that's exactly from my perspective coming from the national counterterrorism center what we would want to be able to
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do quickly. without probable cause, i may add. but certainly that would be within the statute as judge hogan has found. >> we talked about the wall between law enforcement and intelligence and obviously probable cause is critical under the fourth amendment. you're talking about a prosecution under the fourth amendment where an american citizen's rights under the bill of rights has to be protected bay court order requiring the showing of probable cause. terrorists don't have any protection of the fourth amendment, nor is probable cause required to get that information. that's i think the point we need to continue to hammer home because i think people are a little confused about that. thank you, mr. chairman. >> senator feinstein. >> thanks very much, mr. chairman, and thank you for told holding this hearing, because it does give us a little bit of an advance on the hearings that will be held certainly next year. i want to commend those who serve on the p-club board, thank you for your surveillance. matt olson, goold to see you
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again, and thank you so much for your service. it's very much appreciated. as a long-term member of the intelligence committee, about 15 years now, we see the value of this program frequent ly. the problem is the government has been reluctant to declassify sufficient numbers of cases so the public gets an understanding of the value of the program. and the zazi case has been used in the 215 situation, it's used intensively in the 702 situation. so for anyone that is listening, it is really important to cle death classify more of these to show the value of this program. those of us that meet two afternoons a week and go over intelligence and hold hearings and read the intelligence, see the value of the program, but i think the general public does not. i see it as practical, as
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prudent, and as maintaining constitutional guarantees. i've just been reading the director of national intelligence's unclassified report on the ability to query section 702 using u.s. person identifiers as an essential national security tool. i'd just like to read a couple of things then ask that you all comment on them. and he's talking about using a u.s. person identifier saying it would impede and in some cases preclude the intelligence community's ability to protect the nation against international terrorism and other threats. then he discusses that such a requirement is not quired by the fourth amendment, that it would be impractical, and it's rare
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that the intelligence community begins an investigation having already developed probable cause. i think that's been said why one of o-- by one of our witnesses. i would like to ask mr. madean and others to comment on the text of your recommendation. there are 22 of them. you say many have already been accepted by the government. the one i'm curious about is on page 16, recommendation two, updating the fbi's minimization procedures to accurately reflect the bureau's querying of 702 data for nonforeign intelligence matters and place additional limits on the fbi's use of section 702 data in such matters. would you comment on that, please? >> thank you, senator feinstein. one of the things our board discovered in our 702
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investigation was as miss brand indicated, the fbi routinely looks into 702 databases, and not just in investigations but even in assessments, when the fbi has absolutely no suspicion of wrongdoing but they're sort of entitled to poke around and see if something is going on, they nonetheless access -- query the 702 database. but the fbi's minimization procedures weren't transparent about that process. >> stop for a minute. are you saying that the p-club believes there should be a fisa board approval prior to querying? >> the -- the p-club majority did not support fisa approval but judge patricia wauld and i, a member of the board and i, dissented from the board's report. >> would you please put -- because i think this is going to come up. would you please put before this body both sides of the question?
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>> sure. on the side of having a query, as i mentioned earlier, under the fourth amendment, the government is now accessing americans' personal communications. i did want to clarify one point earlier. this program does not just target terrorists. i think it might be a very different situation if the only focus was trismts. this program targets anyone with foreign intelligence value. it could be a completely innocent businessman or anyone else out of the country who has that information. so we have an american talking to someone who is potentially innocent of any wrongdoing and yet capturing that american's communications. it could be a love letter. it could be a business transaction. but all those are being captured. the question is when we shift our attention to those communications should we have court approval. >> i want to hear the other side of the question. miss brand, would you please? >> thank you, senator feinstein. it's important to keep in mind when you're talking tact fbi and querying of 702 data, you have
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to keep in mind the scope of the issue. the fbi doesn't get any upstream data, so there are two aspects of 702 as you know, prism and upsteam. upstream is more concerning from a privacy standpoint because there could be about collection and so forth. the fbi does not get any of that data. they get a subset of 702 data. when concerns are raised about queries of 702 data, the concern is not raised about querying 702 day in a national security investigation, because everyone seems to agree in a national security investigation you ought to be able to query 702 data, but querying that data in other investigations. when we were doing our 702 report in discussing this with the fbi, they weren't able to give us any example of that ever having happened, so it is at the very least extremely unlikely. in fact, when judge hogan wrote his opinion recently, he referred to this possibility as ploet if not entirely theoretical. so it's extremely unlikely that 702 information is ever going to come back in a regular criminal
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investigation, but as i said in my opening statement if there is a connection there you want it to be discoverable. that was the other side of the story. >> thank you. thank you. >> senator. >> thank you, mr. chairman. i was glad to hear senator feinstein talk about the value of this program. she has insights many of us who are not on intelligence would not have, so i think it is very important for the american people to understand why it's a very useful and important tool. i would guess that, back to the point about declassification, i would guess that om of the apprehension around declassi declassifying some of the other cases could revert to other bad actors, reverse engineering, how they can avoid detection if they know what patterns were used to identify and thwart the other events. it's not just merely because they want to keep it private. there are probably legitimate
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future risks in understanding how this data was used to triangulate and thwart an existing attack. is that right, there olson? i think that's generally right, the ability to understand how this government collects this type of information is something the government certainly does not want in the public record. >> and miss brand, i wanted to go back to the last question senator feinstein asked because in your opening comments you talked about the irony of requiring a court order before you get access to the 702 data actually requiring more information to be captured before you can move forward with the query. can you talk a little bit about that? i think it also speaks to the elongation of the process of the investigation, because while the fisa courts may be able to move reasonably quickly after the information is gathered, there's time associated with gathering that information. can you talk a little bit about that? >> sure, and then i'll hand it off to mr. olson and mr. weinstein, who many very practical experience with the investigative process than i do. in general, investigations progress from using less intrusive means to using more
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intrusive means. at the beginning of the investigation you might have just a tip. you want to figure out whether to pursue that tip or not do anything. you'll start by doing a query of databases to see what you already know and if it's worth pursuing. as the investigation proceeds you may develop enough information to satisfy probable cause requirement for a search warrant or a wiretap or so forth. but at the very initial stages of the investigation, you typically don't have much information, and that's why you do a query. to then require the government to compile more information in order to start with the less intrusive means, that just doesn't make sense to me. mr. weinstein and mr. olson may have more insights into that. >> mr. weinstein? >> thank you, senator. i just want to address the speed issue, and i think that's something people need to focus on. mr. olsonened i have been to a number of different threat investigations whether there's an indication of a threat, maybe somebody here in the u.s., and at this point you want the intelligence community operators to get access immediately to every area that there might be
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relevant information. and while the fisa court does act quickly, the process of having to put together that information, not only being more intrusive in relation to u.s. person privacy, it just takes time. and that time can be absolutely critical in a hot investigation. we've seen that over and over over the years. >> would you mind if i speak to the privacy issue a little bit? >> please. >> i would hope this committee would take note of the fact that the privacy community is unanimously behind the requirement of a warrant because it is our considered opinion that this is far more protective of privacy to require a warrant than to allow queries of that data. >> are you aware of any examples to this point where it would be likely that the warrant would be denied? i'm trying to find the -- here's the reason why i'm concerned with this. we are in an environment where the number of severity and
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threats according to leading people in the intelligence community are at an all-time high. and so time is not only -- it's not only the investment in time but it's also the investment in resources. we need to be able to identify and cast as wide a net as possible. i'm trying to figure out -- i understand your concern and i'm sympathetic to it. the question is have we seen this necessarily produce a systemic risk that's actually resulted in legitimate violations of someone's fourth amendment rights? >> i mean, i think the search itself is the violation of the fourth amendment right. i know mr. olson said there was no evidence of abuse of backdoor searches. backdoor searches are the abuse. it's a warrantless search of americans' communications gathered based on a representation that the government was not targeting americans. >> this was a search of data the government is already in possession of? >> it's a search of data that the government is required by law and by the fourth amendment to minimize the use and access to u.s. person information.
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>> and mr. madean, i had a question for you in my remaining time. in your opening comments, did i understand you to say that the p-club didn't necessarily recommend any legislative action but there were additional changes that should be -- i was trying to reconcile that. is that correct, that -- would that suggest the acts as they current stand are sufficient, the implementation needs to be modified or adjusted? >> senator, it's correct that the board only recommended administrative changes, and as mentioned earlier the government's been very responsive to those and has implemented or is in the process of implementing those. one of the other board members, judge wald and i, did dissent and did recommend the requirement of a court approval. also on the classification front, one of the things the board experienced in preparing its report is we found some facts about the 702 program that we thought could be made public without harming national security. we had a very positive dialogue
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with the intelligence community, and the result of which there are 100 facts in our report that had been previously classified that the intelligence community felt could be declassified and allowed for a greater public debate about this program. >> thank you. thank you, mr. chair. >> mr. chairman, may i just know which report that is? is that the recommendations assessment report you're speaking of? >> senator, it's the 702 report. it's our almost 200-page report on the 702 program. we were able to have greater transparency about the program. >> i think it would be valuable if we could add these documents to the record, mr. chairman. >> yeah. without objection, they will be added. i think senator franken is next. >> i'm ranking so i'm going to stay here for the remainder of the hearing, so i would yield to anybody else. >> thank you, chairman. first let me welcome ken weinstein back to the committee. heened i we-- he and i were on
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adverse sides of a considerable number of issues during the bush administration, but he was always an entirely honest and honorable broker on his side, and i think we worked well together, and it's nice to see you back before the committee. you mentioned the comparison between incidental collection under fourth amendment searches and under the 702 program. and of course if you go back to the earliest days of the warrant requirement when somebody had a search warrant and was able to go into somebody's desk and search their papers with that warrant, their papers were not just their papers. their papers were notes that they'd made about their letters out and also their letters in, and so there was incidental collection of people who were not the subject of the search warrant from the earliest days of the republic.
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when we got into wiretap, it became a little more complicated, but once again, you can't listen into the conversations of a mobster without listening in to the other side of that conversation. so wiretaps over and over again engaged in incidental communication. or incidental collection. so there's really nothing new about incidental collection of the people who are not the subject of the investigation and question. it strikes me what is new is the creation of a database to preserve the incidental collection and the question of minimization. minimization i don't think really applied in the search warrant days other than there was obliged to be return of the product. i guess that was the minimization of its era. in the wiretap era, fbi agents
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listening in on a mobster's conversation, once it turned out it was their mom or they were placing an order at the butcher's, you were required to switch off and not listen then check back in to see if the conversation had changed to something inculpatory, but you'd be switching on and off. could you just e lap ratelabora little bit more on how modern fourth amendment search techniques and storage of that data takes place in the domestic context under the fourth amendment search requirements and compare the minimization and the database collection to what we see with the 702 program? >> thank you, senator. thank you for those kind remarks, and i share those sentiments completely. it was a pleasure to work with you over the years. your question is as usual a very good one. let me break it down into two different questions.
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first in terms of the database. you're right that under 702 there's the need, especially in the national security context, to pool data that might be relevant for the very reason we discussed earlier, that when you have a threat, you have an indicator of a threat, you want to be able to access all that information at once, not go to different databases or every different agent who collected from one particular target. so, yes, it is pooled in a way that often title iii take is not pooled, where you have title iii wiretapping in one criminal case in this district collected by the fbi in one place, maybe not pooled with title iii conversations elsewhere. but as a legal matter, they're indistinguishable in the following way. and in terms of title iii, you're right, there is minimization. it's minimization, though, if i'm the target, the government's duly authorized to collect on me, and i'm talking to the pizza
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delivery guy, the agent is supposed to turn it off and then turn back in some interval of time later to see then talking to, you know, my terrorist confederatemy, you know, drug dealing confederate. the reality is, if they're listening, and i'm talking to somebody else that information is incidentically collecting. whether that person is involved in the criminal activity or not. that person's privacy has not been reviewed by a judge the judge that issued the warrant that authorized the collection against me. that's the same thing that's happening in 702. the other person, the counterparty in the conversation has the same limited rights to resist the government's ability to listen to that conversation as the counterparty that pizza guy in my situation. >> i guess to use the word, the question we face is one set has been legitimately collected, and then the government puts it into
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a database and enables itself to go and search it at will in a large pooled database, should that be seen as a secondary event that suggests the requirement for some gatekeeper before they have full access. my time's expired i can't continue the conversation further. thank you, chairman if the hearing. >> senator? >> thank you very much. and thank you to senator franken for his work in this area and allowi allowing me to go before him. that was nice. thank you for all you have done and i've had experience with this. i masknaged a prosecutor's offi for four years. as many of you noted in your testimony, it's critical our laws reflect the balance between national security interests and privacy civil liberties. that's one of the reasons i
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co-sponsored have voted for the bipartisan freedom act. i wanted to ask you about the bill itself as we look at the reauthorization ahead and what we should be doing when we consider any changes to the law. as section 702 is currently constituted do you believe it strikes the appropriate balance between the protection of national security and civil liberties? what changes would you like to see? we can go down the line here. mr. wanesteen. >> i think it strikes the right balance. i believe it dunz thoes that by providing meaningful oversight. also i think you see that difference being played out in terms of internal procedures which reviewed by the intelligence judiciary
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committees. and a finding that there have been no misuse of authority. which i think is meaningful. >> i also believe it should be reauthorized. i was part of the effort and executive branch in 2008. behind the passage of the law and can attest to the way in which it was calibrated at the time to make compromises on both sides to achieve an appropriate balance. but it's also not been static. it's the implementation of the law has been dynamic and has changed over the years and in particular, the what i think really is a land mark report by the privacy and civil liberties oversight board which did an intensive and thorough investigation found the law was not only valuable but constitutional and legal. made recommendations which has been implemented. >> is it one of the concerns that was raised that there was
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too much data to analyze? do you think there's merit to that? >> i did read that part. with respect i don't think there's merit. i can tell you that more data of this time 702 data is better than less. the government has the ability to with that data search it. we talked about it, search, process it and find -- has a better chance of finding the needles that we're looking for when we're trying to stop a terrorist attack. that can be a concern in other contexts i understand more data might obfiskate the needle. >> thank you. >> so i believe that section 702 goes much further than it needs to go in order to accomplish the aims i think we all want to see accomplished. and i would point out that some of the cases -- in fact all of the cases that have been made public relating to section 702 successes are cases in which the surveillance, the section 702 surveillance was of a known or
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suspected terrorist or someone known to have ties to terrorism. while these are evidence of, you know, section 702 working they do not support the idea that section -- >> what would you -- i don't want to -- i want to -- >> i'm sorry. our position is the only way to secure the constitutional validity of section 702 is to have an individual order when the government collects communications between a foreign target and an american there are many other steps that could be taken to improve section 702 that includes closing the loophole, narrowing the definition of foreign intelligence, narrowing the pool of people that can be targeted so it's not just any foreigner overseas and insuring that notice is given anytime that section 702 evidence is used in court or evidence derived from section 702 used in legal proceedings. >> do you want to add anything?
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>> i recommend three legislative changes one is require the government to estimate the number of americans communications that are intercepted under 702. second is tighten up the upstream about collection process. and, third is to require court approval for queries of americans' information. and there's been no warrant issued for these collections. and when the attention shifts to americans' communications that are collected over a five year period with 90 plus thousand people outside the united states i think it becomes a moment when the fourth amendment would require court approval. >> thank you, senator. i would urge congress to reauthorize section 702. i don't think any changes are necessary. i note our very in depth review of the program did not recommend any changes. we did recommend a number of changes to the way the program
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operates that could be implemented by the court. the government is continuing to work on some others. i think those are the appropriates way to handle it. >> thank you to all of you, thanks. >> senator blumenthal? >> thank you, mr. chairman. welcome to this very important and helpful panel this is a complex topic. you've given insightful and intelligent responses to difficult questions. having spent a good part of my career before this job in various courtrooms, i am a strong believer in the importance of the adversarial process in insuring a court has the best possible information to make decisions. and as a result, i proposed some years ago that a special advocate be established to
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present before the court. i'm pleased that a version of this proposal was incorporated in the usa freedom act. i know that enabling the court to hear independent views was among the recommendations, which i thank you and that a panel of outside lawyers has been established accordingly on several occasions the court has appointed one oof them to serve as amicus. let me begin by asking, but this is really a question for the entire panel. could you discuss why they recommended the change and how you've assessed the process of implementation? and then, also, whether a technical expert will be shortly
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appointed to fulfill the role that was envisioned by the statute? >> the origin of the recommendation was the first public workshop we invited a former judge from the court to testify about his experiences. and he said how frustrating it was as a judge to only hear one side. he said in his normal civil or criminal docket, he hears one side make an argument, sounds pretty persuasive then the other side makes an argument that sounds persuasive too. and the judge's role is to reconcile those views. when he went on the fisk he heard one side. that led the board to recommend there be another side. particularly in cases having novel legal or technological consideration lapprovals of 702. i think it's too early to test, but i think it's encouraging that an advocate was appointed and able to make arguments.
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we support having technical advice. a lot of the programs have important technological implications. our board has brought on our first technology scholar to advice us on the issues and blending the other side of law and technology is important to make the court process work better. >> may i jump in? as a member of the club as well who signed on to the recommendation as a special advocate. what i saw prior to the board's 215 report was a lot of public mistrust and misunderstanding of the court. because it was viewed as a rubber stamp. of course, folks that have served in the justice department like mthose who have been in th process know it's not an accurate description but the public viewed it that way. so i think it's important to have some -- for the public to have some visibility into how the court work and the public to have more confidence into how it works. i think the public advocate
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serves that role. i think they've been useful to the court i think they've helped to eliminate the process for the public as well. >> but the help to the court has not just been in appearance, it is enhancing the perception of actual scrutiny and the value you describe, to judges who hear one side and the other side is not just an entertainment value. it elucidates questions, it permits contrast and conflict of ideas and out of that contention sometimes heated emerges a better conclusion for the court? >> i agree with that. but i do think there was a real misunderstanding in the public because there was a sense that the court didn't push back. that the court just simply accepted what the government said at face value. and that was not an accurate
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perception. i agree it will refine the court's thinking and challenge the court's thinking. that's an important benefit. it will have the benefit of assuring the public that the process has integrity. >> did you have have a response? >> i wanted to thank you for your leadership and insuring that very important provision was part of the usa freedom act. i do not see the court as a rubber stamp at all. i do think it has in the past seen its job. i've heard this from former attorneys as getting to yes. that's not the role of the judiciary. i think part of it was when there wasn't another party there, the court wasn't in the role of being a neutral adjudicator between two sides and the court said no the to the government. the court became the other side. that was an uncomfortable role for the court. it made the court more inclined to move toward yes. i am hopeful that having an amicus there will help the court
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to take more of a stance as a neutral arbiter. i think it will be a cultural shift but i think so far it's a very good thing this is in place. >> my time has expired. this is a very important topic. i know it's an evolving question. i want to say for most of my career, i was a government lawyer. and so i wanted the court to get to yes. but at the same time, i welcomed, actually, a strong adversarial process. because it made the case better. it reduced the likelihood of a successful appeal. and we're dealing in a different context here where appeals are unlikely. but, still, the result was better. and as all of you know a judge's worst nightmare is a defendant representing himself. for all the reasons you well known. since my time has expired i'm
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not going to go into them. i welcome and thank you for your very, very important work in this area. every one of you thank you very much. >> thank you, chairman. i'd like to thank all the witnesses for your hard work in a different area that is about balancing our national values our security. this is a debate that goes back to the founding of our republic and as you can tell from the attendance of the hearing still vibrant today. let me try to cover ground that hasn't been covered thoroughly. there are a lot of questions that have gone back and forth between the panel and members. my understanding is the government doesn't obtain a warrant before querying the section 702 data base for information about americans. despite an expressed understanding from some members
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who were present when section 702 was adopted. it wasn't intended to do what it does. can any of you proffer an estimate of how many conversations have been collected under 702. i know it's difficult. can you answer the question do you think we should require queries to be tracked in order to obtain information? >> i see ready volunteers . >> a challenge in quantifying how many communications are collected. i know recently director claper has indicated he will be trying to come up with estimates. i think it would be useful to require by legislation that the director of national intelligence report annually to congress on the number of americans' communications that
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are incidentally collected and the methodology used to do that. that's an important part in the reauthorization process to evaluate it but also on an ongoing basis. >> they recommended the government publish more statistics about the surveillance on u.s. persons. there's a good story of how the club is pushing the people to do that. the administration released numbers on two of those measures, including on u.s. person queries by the cia and nsa. it is working very hard to come up with a reliable estimate to satisfy the recommendations. the club staff is in constant communication with the administration about their frts to find the numbers. al they are working hard to get to a position of giving the congress and public more and reliable information. >> thank you. >> i do think getting an estimate of the number of americans' communications is extremely important.
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i have heard that the intelligence community is working on it. it's a request that's been pending for years. i would urge the committee to support the efforts to move the process along. with respect to the queries, we don't have numbers of how many times the fbi runs a u.s. person queries of the data. the fbi doesn't track those. the fbi, however, is by far we know from the board's report, the most active and frequent u.s. person queerier. it's important to get that information. i heard ms. brand saying the fbi would have trouble figuring out who is a u.s. person in order to track these queries. the nsa does it. the cia does it. they're able to track the queries. i think the fbi should be able to as well. and just one quick point i was hoping to get in when senator whitehouse was talking about the incidental collection idea. there is a very important distinction between the cases that have upheld the incidental collection of people who are in communications with a target and what we're seeing with section
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702. in those cases under title three, criminal warrants, there was not only strict minimization procedures which was mentioned but there was also a warrant in the beginning to target the original suspect. and the courts have emphasized the important of that warrant on the front end. that provides protection for people in contact with the target and narrows the pool of people who can be collected on. >> thank you for that. let me ask two more questions if i might. first if you'd answer this. given section 702 was adopted for foreign intelligence and national security ppurposes, do you have have any concerns about whether it's important to be used for domestic law enforcement purposes? do you think that's a distinction that can be made or is that a boundary worth respecting. my last question, what standard does doj apply to determine whether it's obligated to provide criminal defendants with
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notice and how, in your view does the doj insure compliance with its brady obligation to provide section 702 provide exculpatory information. if you'd answer that sequence i'd be out of time. >> i think the distinction is not so much between foreign and domestic. but in terms of the nature of the case, but in terms of who the target is. if the target is foreign, then there can be warrantless collection. if the government is trying to build a case against the american, the american is the target. if it's a foreign intelligence case they go to the court and get a warrant. that distinction is easy to make whether someone is an american or not. >> sir? >> thank you for the question. i think the problem here is that we were involved right after 9/11 with bringing down the wall. and congress through the patriot act did that. the wall was based, you know, fundamentally on a distinction
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between foreign intelligence work and criminal work, law enforcement work. that was a distinction that created this barrier that impaired information sharing that the 9/11 commission said led in part to the attacks of 9/11. the last thing we want to do is reerect the wall at this point. we've seen the benefit of having seamless coordination information sharing among law enforcement and intelligence personn personnel. we don't want to do anything to bring us back to the old days which led to 9/11. >> thank you. our board did not look at the question you raised. i defer about the notification to criminal information of the use of 702 information. >> i'm sorry was the question on notification -- okay. >> notification of criminal defendants. >> that appears to be honored in the breach is what i'd say. for a while it was not honored at all. then about three years ago there was apparently a charcnge in
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policy. there have been eight notifications in the last three years. that's against the back drop of hundreds of prosecutions, dozens of material support prosecutions. so there is definitely concern that the fbi is voiding the requirements, perhaps by a creative definition. perhaps by parallel construction. which is re-creating the evidence using less controversial tools or methods, perhaps both. you know, very easy to clear this up for the department to simply release its policies for how it interprets the requirement. the government has been fighting tooth and nail against foia requests. >> thank you, i notice i'm out of time, thank you very much mr. chairman. >> thank you, mr. chairman. i understood -- understand you work for senator feingold.
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last we passed the usa freedom act bipartisan bill which brought much needed reforms to the federal government's surveillance programs, including an end to bulk data collection program that the intelligence community said wasn't necessary and the public said it didn't support. i was a proud supporter of that bill. senator helder and i recognize when the public lacks even a rough sense of the scope of the government's surveillance program they have no way of knowing if the government is striking the right balance,
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whether we are safeguarding our national security without trampling on our citizens' fundamental privacy rights. but the public can't know if we succeed in striking that balance if they don't even have the most basic information about our major surveillance programs. that's why my focus has been on transparency that's why senator helder and i crafted the provisions that require the government to issue detailed annual reports for the surveillance authorities at issue. importantly, the government now has to provide the public with estimates of how many people they've had their information collected and for certain authorities, like those permitting the targeted collection of call data records or the communications of foreigners abroad, the government now also has to say how many times it runs -- has run searches for americans'
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data. when the american people have access to that kind of information they can better judge the government's surveillance programs for themselves and that's just not -- not just my view, it's an opinion that is shared by general counsel for the office of the director of national intelligence. while addressing brookings last year, he said quote, the intelligence community recognizes that with secrecy come both suspicion and the possibility for abuse. i and many others firmly believe there would have been less public outcry from the snowden lake effe leaks if we had been more transparent about our activities beforehand. it seems to me that the same need for transparency applies with equal force when we're talking about the number of americans whose phone calls or e-mails have been collected. perhaps incidentally, under section 702.
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members of the senate intelligence committee have asked for a number of americans affected. civil society and civil liberties groups have asked for the number. last month 14 members of the judiciary commit askcommittee ad for an estimate but nobody has received a satisfactory answer. is it possible for the government to provide an exact count of how many united states persons have been swept up in section 702 surveillance. if not, the exact count, what about an estimate? >> i think it would be very difficult to provide an exact count with any accuracy at all. i don't think anyone has asked for that. senator widen initially asked for an estimate. i think i heard him use the word ball park at one point. that should be possible. with a couple of programs, it should be fairly straightforward. there's -- it's a little trickier that's why the civil liberties community has offered
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to work with the intelligence committee to try to provide a way. it's vital. i hear public statements by officials over and over that this program is targeted at foreigners and that the collection of americans' communications is incidental. these are terms of art with very specific legal meanings, most americans are not lawyers when they hear this they will assume that americans' communications -- not many americans's communications are collected. so i think having this estimate is important to pierce through the legalese and dwgive them a truer perspective. >> because ms. brand brought this up in terms of people's confidence in this whole thing. to what extent is that the issue and what extent is the issue actually when we're -- when senator blumenthal was speaking,
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that the operational and transparency be hand in glove so that -- the operation of this is more consistent with the constitution? >> i think it's both of those. i think that for the american public to have confidence the program is abiding by the constitution, especially when it turns its focus to americans' communication and knowing how many communications are being collected would eliminate the question of querying that information. i'd add that this -- our report of 702 has been helpful for europeans as well. i was involved recently in the privacy shield negotiations where they had anim misunderstanding of 702. it's a targeted program. it's not bulk collection. there are a lot of targets but
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there are a lot of people out there who have valuable information. al i think that was helpful, to understand the program does have legal structure, it has oversight and there's a targeting process. >> my time is certainly up. i know ms. brand looked like wanted to answer that. i'm way over. >> i more or less agreed with everything they said. >> there, that was dispensed with very quickly. mr. chairman. >> i have one question and then senator feinstein has questions she wants to ask. when i'm done with my one question i'm going to go and senator feinstein or senator franken is going to finish the meeting. i want to thank all of you for participating. i'm sure all of you are very willing to be resource persons for us over the next few months as we get around to working on reauthorization. i hope you won't do like a lot of people, wait for us to call
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you. if you've got something we need to know that you'll talk to me or other members of the committee or particularly my staff. i would invite that. i want to thank you all for participating in this hearing. ms. brand i've believed transparency in government leads to increased accountability. i noticed the privacy and oversight boards recommendations was to provide additional transparency surrounding the frequency of incidental collection of u.s. persons' communications. i also understand that february 2016 the board described this recommendation as quote, unquote, being implemented. question is, can you walk through the specifics of what the board recommended? and provide us with some more detail regarding the status of the implementation of the executive branch. >> thank you, senator.
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yes, this was one of the important recommendations the club made in terms of amending the way the program is operated. i gr i agree with the importance of transparency in the program. it's hard to judge the impact on u.s. persons without knowing to which their communications are collected. the government, we have had an goe going dialogue about how to get more information in the public about this. it is very difficult if not impossible to come up with an exact number. when a foreign target is communicating with other people the government doesn't automatically know the nationality of the people with whom the target communicates. it would be more privacy intrusive than not investigating it. we did think that there were some aspects of the program that could be measured. so we recommended five. they were the number of
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telephone communications in which one caller is located in the u.s. the number of internet communications collected upstream with one in the u.s. the number of communications concerning u.s. persons at the nsa positively identifies as being a u.s. person communication. the number of queries performed that use u.s. person identifiers and the number of instances in which the nsa disseminates a report with u.s. person information in it. the last two measures are ones the government has now published some information on. just on april 30th, saturday before last, they issued the transparency report which it was required to do under the usa freedom act. and as previously some of the information was provided only to congress it's now public. we're on an ongoing dialogue with the administration about how it can release information responsive to the other three recommendations. they're working hard to do that. we're in contact with the nsa last week about that.
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the staff is coming to talk to our staff next week about it t. we'll continue to press on that and we expect to make more progress on that. >> thank you. senator feinstein? >> thanks very much mr. chairman. because of some of the discussion, i just wanted to bring to everybody's attention two documents. the first is a joint unclassified statement of bob lit, the general counsel for the office of director national intelligence stuart evans deputy assistant ag and the assistant director for counterterrorism division of the fbi. on page three, they discussed targeting procedures. and i would like to read a short part to insure compliance with the provisions. they've set up a number of steps in the preceding
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. section 702 requires targeting procedures minimization procedures and acquisition guidelines. these are designed to insure that the government targets non-u.s. person outside the united states. and also that it does not intentionally acquire domestic communications. moreover the targeting procedures insure that targeting of foreign persons is not indiscriminate. instead, targeted at non-u.s. persons outside the united states. who are assessed to possess expected to receive or who are likely to communicate foreign intelligence information. now, it goes on to say because congress understood when it passed the faa that a targeted non-u.s. person may communicate with or discuss information concerning a u.s. person. congress also required that all
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collection be governed by minimization procedures that restrict how the intelligence community treats any person. the best of my knowledge, the court has to review the minimization procedures annually and approve them along with a reser recertification of the program. this is page three. it's interesting for everyone to read. the second thing i wanted to cite is the director of national intelligence's april 30th letter with an addenda that's a response to the recommendations. i want to read that because there are some interesting first time i've seen these figures. and this is -- i'm reading from page six of that. nsa's minimization procedures expressly prohibit dissemination of information about u.s. persons in any nsa report.
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unless that information is necessary to understand foreign intelligence information or assess its importance. contains evidence of a crime, that's an exception or indicates a threat of death or serious bodily injury. even if one of these conditions applies, nsa will often mask the information and will under any circumstances include no more than the minimum amount of u.s. person information necessary to understand the foreign intelligence. or to describe the crime or threat. in certain instances, however, nsa makes a determination prior to releasing it's original report. that the u.s. person's identity is appropriate to disseminate in the first instance. using the same standards mentioned above. here are the numbers, in 2015,
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nsa disseminated 4,290 faa section 702 intelligence reports. that included u.s. person information. period. of those, 4,290 reports, the u.s. person information was masked in 3,180 reports of those. and unmasked in 1,122 reports. i know this went to the p clob. it seems to me that's responsive to the concern -- is it goline? would anyone like to comment on
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that? i'm looking at you. since the p claob receives this >> i think it's the information the board was seeking in terms of greater transparency on how many u.s. person identities were disseminated. we're aware a lot of times that information is masked and then ultimately unmasked down the road. one thing if i could comment on the first document you said, about the focus of this program is on non-americans. there's a lot of misconception after the leaks in 2013 about what the program was about. some people even thought you only had to be 51% sure it was a non-american in order to record. the board concluded it's about a 99 plus percent chance it's a
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non-american. the other thing we looked at is whether the suspected foreign intelligence value for the collection. there we did feel there was a need for improvement. the government had been documenting sufficientally why it was looking at the information. that's a recommendation they accepted and have now implemented to make sure there's a greater rational for the collections. >> thank you. i would like you to know i was on this committee when the wall was discussed in whatever year it was. and there was tremendous concern about the wall preventing the kind of communication that was necessary. i made the amendment on the definition at that time that resulted in the reduction of the wall. to this day i think it's a very important change that was made that enables information to be constituted. i think in our concern, we often -- because i guess i see
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the intelligence, you get a sense that there is plotting and conspiracy going on. and the fbi is investigating ongoing cases. we've even had -- i think it's unclassified number, mr. oleson, of about a thousand investigations going on today in this country. so we shouldn't let down our guard. because to do so, is really to invite disaster. i actually believe from the time we began looking at this, and with the p clob's help and the information you provided and the response to it. there is renewed transparency going on and there is discussion that's helpful. but i think that the 702 program of the programs is really
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important. and it would be most unfortunate and it would expose this country if that program were main effective. i think the faa has done that to provide -- and the masking and the unmasking and now everybody has the numbers with respect to that for the year 2015. i wanted to make those comments. if anybody has a comment -- >> yes, i'm twitching over here. i want today respond to one thing you said. opposition to back door searches is not call to rebuild the wall. >> whoa. whoa. what's a back door search? >> when the fbi or any other agency targets a u.s. person for a search of data that was collected under section 702 which is supposed to be targeted against foreigners. >> regardless of the mmmization
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that was properly carried out? >> the fbi gets raw data the nsa and cia get raw data and they search that using u.s. person's identifiers. i'm happy to call it u.s. person queries and trying to direct u.s. person queries is not calling to rebuild the wall. any agency that comes across threat information should share that information, agencies should work together to address the threat. with the fourth amendment can not tolerate is the government collecting information, communication s without a warrat with the intent of mining it for use in criminal cases -- >> that's where you and i differ. i think that all of the data is collected lawfully. i don't believe it's collected unlawfully. >> i agree. >> if you have a case where the data is collected unlawfully i'd sure like to see it. >> but unfortunately it's not that simple because collection
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and how the data is treated are both parts of the same scheme that's evaluated for its constitutionality. what makes the collection at the front end lawful and judge bates said this. what makes it lawful to collect without a warrant is restrictions on how the data can be used on the back end. >> let's have somebody respond to that. >> may i respond? i thk you're on to something very important when you mention minimization. because there are extensive roles and protections that surround the use of u.s. person queries. at the cia and nsa, the report went to extensive detail how and under what circumstances the agencies may perform a u.s. person queries. there is documentation of justification the board recommended improvements for that which the agencies are implementing, there is extensive oversight after the fact on u.s. person queries by the justice
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department. and then with respect to the fbi, the fbi does not track u.s. person queries separately. but queries are documented and the person who conducted them is documented. at the fbi where the protections come in is any use of information. so in the extremely unlikely perhaps theoretical event that 702 information responsive to a regular criminal investigation that could not be used unless they're trained. the attorney general has to approve any use of the information in a criminal proceeding which includes a wire tap application as i understand it. if someone's communications collection is used against them they have to be notified. we know that does happen because there is a reported case out of colorado where a defendant did a motion to suppress, information collected under 702 after the government notified him it had
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been collected. the policy change was late in coming but it's now happening. it's important to keep the recommendations in mind. >> i appreciate that. >> if i could make maybe a broad urpoi er point. the targeting procedures you identified, the transparency figures and the dni's report i think it highlight along with ms. brands. most of the discussion today, the success that the act in section 702 represents as we sit here today this is a law that reflected a careful balance in 2008 and has since been enhanced to tweak that balance i think in very careful ways. a report that's unprecedented in terms of thoroughness and detailed nature. as we sit here today we have a carefully calibrated law that's been a major success from an intelligence standpoint i reject the notion of back door
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searches. every judge that has looked at, have upheld when they've had to chance to review the searches, that's not a back door search that's the way the law was intended to be used under the careful limitations that the mmmizations procedures impose. this is a good story at the end of the day. >> thank you very much. i appreciate that. because we have looked at this and there are a number of opinions from some of your colleagues on the subject that have been studied. and i really think it is lawful and well-balanced. and you know i hate to say it but very necessary. we have to -- in my view, it's only intelligence lawfully collected that's able torevent another attack in this country. and i hope there will be more declassified examples before the year turns and we're in 2017 and
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faced with the reauthorization. thank you. senator franken, would you take over and ask your questions and adjourn the meeting, please? >> i'd be delighted to. thank you, senator from california whose work on intelligence has been so important. and for her thoughtful questions. i'm going to adjourn this in a second. but i just want to, you know, what's interesting i thought about this line of questions, which this goes to the core of this. which is that we have had some very important information from 702 that has thwarted terrorist attacks. and so this is absolutely
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crucial. and i believe that by and large with some exceptions that the -- our intelligence community has acted in good faith. the question here really is going back to the framers and going back to their fear about what happens when a government isn't acting as -- in good faith as i think our intelligence community by and large has. and so this use of information that we get through 702 can be misused. parallel construction was mentioned, which is -- again,
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this is -- the framers wrote the constitution because they didn't like the british at the time. i think everyone knows that, right? i don't have to go through that history. and so they were worried about maybe some people running the executive branch of the government that weren't as trustworthy as others. so that is the reason that we look at how that 702 information, which is collected about people who aren't the targets and who are americans, how that information is -- what the rules are. so that isn't misused. that's my understanding of this.
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and i saw you reach for the button. >> i got to take this finger lubt. it keeps reaching for the button. but i do think there are situations in which having oversight and rules that policies about procedures for how searches are done, all those things are cases where that's vital. when you're talking about a warrant and the basic requirement of getting a warrant to access americans' communications, you cannot substitute procedures for a warrant. and to quote justice roberts in the riley case which required a warrant to search cell phones the founders did not fight a revolution to gain the right to government agency protocols. i would like to leave everything with that thought. >> can we end on that? >> that's fine. >> okay. i'm just a little late. i volunteered to do this. and i'm going to now. i'm going to adjourn -- we're going to keep the record open
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for another seven days. is that right? and we're now adjourned.
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you can watch this oversight
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hearing on the previous hearings at house and senate debate on this issue on our website go to cspan.org. the senate judiciary committee convened that hearing. judge merrick gar land who is president obama's nominee has submitted an updated questionnaire as he seeks conversation. ranking number senator patrick leahy released a statement saying an updated questionnaire has been submitted. and scheduling a public hearing. it's critical so we can confirm him by the summer and insure sh supreme court has a full compliment of judges this fall. that from senator patrick leahy
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earlier today. our road to the white house coverage continues today with hillary clinton as she campaigns in louisville kentucky ahead of next tuesday's primary in that state. that begins at 6:15 eastern on cspan two. bernie sanders holds a rally in oregon. live coverage starting at 10:00 p.m. west virginia and nebraska are holding primaries today. we'll update you with results after 8:00 this evening after the polls shows. west virginia with 34 republican delegates and 37 democratic delegates. polls show a two to one lead by senator sanders. nebraska has 36 republican delegates. here's more on these two primaries. david gutman a report reporter for the charleston gazette mail in west virginia. what's expected today and who will come up on top according to
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polling? >> if we're looking at the presidential race i would expect a big victory for donald trump, who is led by significant margins in every recent poll. add to the fact that -- he doesn't have any opponents anymore. he's looking at a big victory. although i should add on the republican side, the process is a little bit confusing that you do vote for a presidential candidate, but that vote is pretty much entirely symbolic. republican voters further down the ballot will actually choose the specific delegates to the republican national convention. and those votes, they'll choose i think 22 of them. those votes are the ones that actually matter. mr. trump has a full slate of delegates. i think can win up to about 31
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of our 34 possible delegates. on the democratic side it will probably be much closer. bernie sanders has led most of the polling recently. although there hasn't been that much polling. i think it's two polls or so in the last two months they've both been within i would say five to eight points. so he's probably a slight favorite. but anyone's guess on the drak side. >> mr. gutman, what do you think are the driving issues when it comes to west virginia voters and who they'll choose? >> the coal industry is always a huge issue here in west virginia. all three candidates had campaign rallies here last week. both hillary clinton and bill clinton campaigned here and both saw big protests at the campaign events they had in southern west
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virginia. protest partly organized by the coal industry but a lot of people upset over comments she made a month or two ago where in a question -- in a question about what was going to happen to kind of lower income white workers. she talked about her plan to transition away from coal and to reinvest in coal communities with a multibillion dollar plan. she also said we're going to put a lot of coal minors and coal companies out of business. and that quip did not go over well here. when donald trump was in town, later that week, he -- much of his rally was spent talking about how much he loved coal minors and how he's going to put coal minors back to work. although, he doesn't have any specific plan for how to do so. but he did promise to do so i
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guess despite most every industry analysis which says that no, the coal industry is not going back to boom times in west virginia. >> even mr. trump getting endorsements if i understand it correctly came out on stage with a hard hat if i remember. >> yeah, the leadership of the state coal association came out to -- for a little photo op on stage with mr. trump and handed him a hard hat. he was seen shoveling and the crowd went wild. behind him during his speech were miners in reflective stripes and hard hats. waving trump digs coal signs which had been organized by the trump campaign. but yeah, that's absolutely a driving issue in the election. >> mr. gutman, before we let you go, participation today, what do you think it will be like?
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>> it's tough to tell. the one metric we have is early voting numbers. and we've got a ten day early voting period. they are way up. the highest we've ever seen. 106,000 people have already voted, which is close to 10% of the voting population. that's way more than we've seen back in 2008 was with the highest previous numbers for early voting, that was 66,000 people. >> david gutman with the charleston west virginia gazette mail. political reporter talking about today's primary and the importance of coal. mr. gutman, thank you. >> thank you. a number of news organizations including "the washington post" are reporting that president obama will make a historic trip to hiroshima, japan on may 27th becoming the
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first sitting u.s. president to visit the site of the world's first atomic bombing. the white house announced the visit today after weeks of speculation that group of be se economic summit. the president expected to give a speech on nonproliferation of atomic weapons. shinzo abe will join him in his visit. white house aides say there will be no presidential apology for u.s. decision to drop the atomic bomb august 6th of 1945, which killed an estimated 140,000 people in hiroshima. you can read more about that at the hill.com. a princeton university professor outlines increased health risk to children and rising temperatures, center for disease control talks about link between climate changed and zika virus in latin america and
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puerto rico. >> welcome to brookings. my name is ron haskins. children of center and family. we study kids, obviously and especially interested in poverty issues and issues of economic mobility. along with my ccf colleague i'm also an editor of "the future children" which we publish twice a year with our colleagues from princeton. sarah mcclanahan is editor in chief and managing editor i don't know than wallace is in the audience today.
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jonathan, thank you for coming. here primarily to keep an eye on us, i think. whenever we introduce a vine, we write a policy brief without some issues in the vine and try to pick an issue related to public policy and vphave a volu. here is the event. first after he gets through janet curry, who is one of t-- currie, one of the editors and two editors of this volume, economic public affairs and director of center for health and well-being. i'm not sure she leaps but does all that stuff at princeton at the woodrow wilson school of public international affairs. then when she gets through i'm going to give a brief
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description of policy brief and tell you what the argument of the policy brief is. our event is organized around policy brief rather than entire journal. the only time we talk about the entire journal is right at the beginning. it will coup time to time in the discussion i believe. after that we're fortunate to have debra lubar from center for disease control and prevention. she is going to talk about the administration's proposal on the zika virus, which we'll get into in a few minutes. then we'll sit down and be joined on a panel. we have a panel of four people discuss several issues that have come up. then i'll give each of you a chance to ask questions of the panel. alan barreca here from tulane who will also participate in the panel discussion. that's our plan. i hope you like it. let's have a good time. janet. >> okay. thank you very much, ron.
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so this volume starting point is the idea that the debate about climate change is often framed around effects on our children. but we're not generally very specific about what those effects might be. so the aim of this volume is really to get more specific about what the effects of climate change are likely to be on children. so there's four broad themes that come out of the various chapters. one important theme is that this is no longer something which we're speculating about. this is something that's already happening and will continue to happen. it is going to and already affecting children's health and well-being. children are likely for various reason to bear a disproportionate share of the brunt of climate change.
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poor children, children in developing countries, and especially children in countries that don't have very strong institutions are particularly at risk. although we know this is happening and will continue to happen, we still have uncertainty about exactly how bad it will be. that depends in part on what we do. the fact that there is uncertainty and also that the costs and the benefits are in the future, and also that they are going to be very unevenly distributed i think make the politics surrounding climate change particularly difficult. so i'm going to start off ju with this article, which many of you may have seen. it and in the "new york times" yesterday. i thought it was perfect for this presentation because it
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hits all the themes that i just talked about. climate change is already happening. as you can see in the united states, we have our first climate refugees who are being moved if a place that lost 90% of its land mass and most of its trees because of salt coming up through the water table. and so $48 million has been allocated to move people off of the island to different locat n location. you can see literally the poster child of the article is a 3-year-old girl whose family has to move. this is a poor community. it's a native american community, illustrating, again, that it's the poor who are most likely to suffer. and then on the political front, even the sort of relatively
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small and well-defined thing, take people on a sinking island and move them someplace else is still a heavy lift and fraught with various difficulties that are discussed further in the newspaper article. so in terms of what this volume covers, we start by talking about the science of climate change, what is known, what is not known. having set the stage, we then focus on temperature extremes, which are one of the most obvious implications of climate change. children are particularly vulnerable to health effects of high temperature, which is one of the many ways in this climate change affects children. we talk about climate change and conflict. there's a growing body of evidence that high temperatures are related to conflict, in part
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because they can have severe economic effects. in parts of the world prone to conflict anyway, if you do things that threaten farmers lively hoo llihood livelihoods, that makes it more likely there will be armed conflict. we discussed natural disasters and effects on children. again, that's one of the things expected to become more common due to climate change. we talk about pollution and climate change, which i'll go into a little more detail about in a minute. climate change in developing countries, which is a particular problem. then we talk -- it's a little more technical chapter, how do we pressure the costs and benefits of climate change. a lot of the standard ways economists think about things are quite difficult to apply when you have something that is going to take place a long time in the future and also where
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there's substantial uncertainty. that i think bedevils efforts to talk about this in a really rational way. then finally we come back to the political problem that is so difficult to mobilize effort to combat climate change. so looking at temperature, this figure, which is from the chapter on temperature, shows the number of days over 90 degrees that are expected in four u.s. cities. the white bar is for 2001, 2010. so that's already happened. then the next gray bar is 2046 to 2055 and the black bar is the end of the century, 2090 to 2099. so what you can see, it's going to get even hotter in houston, although it's pretty hot in houston already in the summer. so maybe arguably people in
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houston are used to deal with that. if you look at kansas city and new york, the two middle sets of bars, you have, you know, really big increase inspected hot days. so in new york goes from 10 days in the summer to 70 days in the summer by the end of the century. so that's a big change. then seattle comes off relatively easily with an increase to only 20 days of really hot weather. so this is just illustrating how the costs of climate change, even within the u.s., are going to be unequally distributed across regions. now, some of the things that we can do about climate change in the short-term, which will also have some benefits in the short-term, are reducing pollution by, for example,

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