Skip to main content

tv   Politics and Public Policy Today  CSPAN  May 20, 2016 5:00pm-7:01pm EDT

5:00 pm
further investigation revealed that zazi and a group of operatives had imminent plans to detonate explosives in the new york subway. he was arrested and the attack was stopped before it could occur. in another case nsa conducted surveillance of an e-mail address of a suspected extremist in yemen and it led to a discovery between that person and an unknown person in kansas city, missouri, following investigation revealed that he was connected to on other al qaeda associates inside the united states who were part of an earlier plot to bomb the new york stock exchange. they were prosecuted and pled guilty. in the context of these cases zazi and usani it's worthy to point out the role of incidental collection in 702. the government collected information of the operatives inside the united states directly of their contacts with 702 targets overseas. it was critical to the
5:01 pm
disruption of the plots and the arrest of the al qaeda operatives here. so-called incidental collection led to the initial identification of these men and enabled the government to use other investigative tools including traditional fisa to vag advance the investigations. it's an invaluable tool in supporting the counterterrorism efforts of our allies around the world. in describing the value of 702 it's important to explain why it's uniquely important as the deputy attorney general from 2006 to 2009 i experienced first hand the consequences of the pre-faa approach in some cases it simply was not possible under that prior approach to demonstrate probable cause that a foreign target overseas was an agent of a foreign power. it authorizes the government to obtain critical intelligence about terrorists and other targets that it cannot obtain by other means.
5:02 pm
in conclusion, i would say that the authority congress established under section 702 has played an indispensable role in protecting the nation from terrorist threats. i look forward to your questions. >> thank you. chairman grassley, ranking member leahy, and members of the committee, thank you for this opportunity to testify on behalf of the brennan center for justice. 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. people are communicating at a scale that was unimaginable just a few years ago. international phone calls which were once difficult and fensive
5:03 pm
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 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 affiliated 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.
5:04 pm
while the government must certify that 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 allah collection of communications, not 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 floating 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
5:05 pm
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 this surveillance. the fourth amendment may not apply to foreigners overseas. but when a law is designed to 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. constitutional 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
5:06 pm
other hackers. and 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 practical ability of the u.s. technology companies to do business with customers overseas. we're told that these rinks ris 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 bounds set by the courts, americans should be able to decide for themselves how much surveillance is too
5:07 pm
much, but to do that we need information. five years after senator wyden 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 taking your questions. >> thank you very much. >> senator grassley, ranking member leahy, members of the committee -- sorry. chairman grassley, ranking member leahy and members of the committee, thank you for allowing me to testify. in 2014 the privacy and civil liberties oversight board which i cherishued a report to foster the type of debate we are having today. 702 collects the contents of communications of non-u.s. persons outside the united states for where there's a
5:08 pm
foreign intelligence value. as has been mentioned earlier it has proven to be a valuable intelligence tool for the u.s. government thwarting terrorist plots and providing valuable decision makers. it has two components prism and upstream. in prism the government collects the contents of target's e-mails and other 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, it's not inadvertent because it's known that americans' communications will be collected. in contrast the upstream program the government gets access to the telecommunications backbone over which some telephone internet communications transit and can collect the contents of e-mails and phone calls. by using about collection the government doesn't look at the header of to and from e-mail but
5:09 pm
it 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 an e-mail address with my uncle in turkey so she has a place to stay when she's traveling to turkey if my uncle's e-mail is in the target program my e-mail could be picked up and copied into an nsa database even though neither one of us are suspected of wrongdoing. if this program is to continue it should have privacy and civil liberties particularly where u.s. persons are implicated. i recommend three legislative changes. first, many of the communications collected under 702 have nothing to do with terrorism or crime. they can include family photographs, love letters, personal financial matters, discussions of physical and mental health and political and
5:10 pm
religious exchanges. u.s. persons queries of databases are capable of revealing a typical slice of an american's personal life, and this is the case for americans who correspond with foreigners. since no warrant was ever issued for the communications which are covered by the fourth amendment there should be some form of protection. before querying these databases for a u.s. person identifier intelligence agencies and the fbi should be required to it? their u.s. person identifier queries to the fisa court for approval other than exigent circumstances. most important here is that there be an impartial life tenured federal judge have the final say over whether americans' personal communications are collected and reviewed. upstream reveals two important concerns. one is the american to american communications and the overcollection of communications.
5:11 pm
as technology evolves the government should be required to evaluate the effectiveness of screening of communications and determine out ways of straighting out various type of about communications so we can have policy decisions about whether all should be collected. third a large number of u.s. person's incidental communications are collected under 702 as i mentioned but how many? in order to have an informed democratic debate about the scope of the program it's important that citizens and members of congress have an idea how many are being collected. nevertheless, i urge this committee to require 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 re-authorization process as an opportunity to enhance privacy and civil liberties protections in section 702 while
5:12 pm
maintaining a program that has provided enormously valuable information to protect our country from terrorism. i appreciate the opportunity to present my views to the committee, thank you. >> mr. chairman, ranking member leahy and members of the community, thank you for the opportunity to testify about 702 of fisa. i serve as a member of the privacy and civil liberties oversight board, although you have already discussed some aspects of the 702 program it's been so widely misunderstood that i think a few key points are worth stressing. the first is the limits under which the 702 program operates. section 702 as the p-club found is a targeted collection program. it does not authorize bulk surveillance. the government may target only non-u.s. persons outside the united states which means it can never target any u.s. person located anywhere and it can never target anyone located inside the united states and the
5:13 pm
government cannot target just any foreign person located outside the united states. it can 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 cannot be targeted, some u.s. person communications will be incidentally selected. 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. person's 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
5:14 pm
foreign intelligence. mr. olson and mr. wainstein have discussed this. it's been found that 702 collection has found to disrupt terrorist plots and identify previously unknown individuals involved in terrorism and understand terrorist operations, priorities, strategies and tactics. the board concluded it was authorized by congress and reasonable under the fourth amendment. the board recommended 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 that the board's five members were unanimous in the central conclusions, we were also unanimous inually unanimous in how to protect the program's rules. 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 step
5:15 pm
in a criminal investigation is to query the fbi databases to see what the fbi already knows. they do not distinguish between u.s. persons and others because nationality is normally irrelevant to a criminal investigation. one of the databases contains a subset of the information collected under section 702 though none of the communications upstream. 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 nonnational 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 nonnational 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
5:16 pm
toward reerecting the information sharing wall that the government has worked so hard to tear down since 9/11. an investigator looking in to a nonnational security crime would not likely see a connection. if it existed it would be extremely important to know. the fbi procedure should not limit queries in a way that would prevent the government from discovering the potential connections. limits should be placed not on queries of information but on the use of the 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 who 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 look forward to
5:17 pm
your questions. >> i'm going to ask mr. wainstein and mr. olson based on your experience serving government, what else can you tell us in this unclassified setting about the value of 702 surveillance and how it's been used and how would it affect our intelligence capability if congress failed to reauthorize. >> thank you, chairman grassley. i'll be brief and then turn it over to 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 attempts act was passed. at that point as you recall the intelligence community was already collecting surveillance intelligence through the protect america act which was sort of the stop gap legislation that proceeded the fisa amendments
5:18 pm
act and even at that point you could see the richness of the information that was coming in for the reporting that got all the way up to the white house. you could tell it was really a major step forward and as i mentioned in my remarks earlier, that's critical. it's a critical remedy for what the problem that arose with the changing technology over the 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 back 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 one of them. >> i essentially agree with mr. wainstein. 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 we were trying to track who were not u.s. persons located overseas. we were seeking individualized warrants. the system was overwhelmed to
5:19 pm
get warrants for individuals 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 am confident overwhelm executive branch and judicial resources. i will also say in terms of the value today, my last post at the national counterterrorism center i saw the value almost on a daily basis of 72 repofaa repor. it was typical for them to say it came from 702 collection. and the board said 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 board was able to cite that were otherwise unknown. >> ms. brand, about some
5:20 pm
people's suggestion that we get judicial approval or even a warrant before querying the database of 702 with a u.s. person's phone number or e-mail, in your testimony a moment ago you mentioned one reason you thought this wasn't a good idea. are there other reasons that you can describe for us that in your view make 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, the 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 can be conducted a government will have to assemble a package for the fisa which presumably would require the government to get more information which means you
5:21 pm
would use more intrusive means to justify less intrusive means. it seems backward. the fbi does not distinguish between u.s. person queries and non-u.s. persons query. if they want to see what the fbi knows about somebody they'll not indicate whether it's a u.s. person or not because there's no reason to ask that question. it's not clear you had you could find a workable solution without requiring judicial approval for all queries and because the fisa court process is so cumbersome and time consuming, it would likely result in no queries. >> follow-up for mr. wainstein and mr. olsen, based on your experience in law enforcement and the intelligence community what would the operational effect be of subjecting these queries to judicial approval? >> i agree with ms. brand.
5:22 pm
it's hard to predict. but it's certainly the case having worked in the national security division at justice that that would mean -- that would slow down the process of simply searching for information that was lawfully collected. the attorneys in the national security division working with whether fbi or nsa would have to compile applications to the court. now, in cases that the court can move quickly, it has proven it can move quickly, but there's no doubt that it would become a more cumber ssome and slow processes in instances where speed and agility is critical. without a gain from a privacy perspective and against a record that has no indication of abuse in terms of the current approach of allowing the agencies to conduct the searches without judicial approval. >> go ahead. >> thank you, mr. chairman. just to add to that, just keep in mind that that kind of requirement is not in place for,
5:23 pm
let's say, information collected incidentically collected communication under title three which is, you know, the krim cal wiretap statute and 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 required in a criminal contact where speed is of less importance. >> senator leahy and then senator of texas. i'm going to step out for just a minute. but you two go ahead. >> thank you. i think everybody agrees we want to keep the country safe. i do appreciate numbers being tossed around here. i always worry, though, what's behind the numbers. we heard from on a different issue from the nsa about 52 attacks that their wiretaps stopped. and then the numbers were always given.
5:24 pm
until they testified in public and the 52 became a dozen which became 5 which became part of one after the fact. and following up on fbi investigation. not i'm not suggesting these are exactly the same here, but i always worry about numbers. we were assured, however, at that time that americans' privacy was protected because of the tough security measures the nsa had. they weren't good enough to stop a 28-year-old from stealing all the information, 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
5:25 pm
every single american's computer and phone. n none of us are suggesting that. but i worry if we do parts of that. so, let me ask. what do you agree with the review group that congress should require a court order based on probable cause? >> so, i think [ inaudible ] -- thank you. i think t 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 oit 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.
5:26 pm
then having made that certification as soon as the data is obtained all three agent sis 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 in criminal cases that have no national security or for intelligence component whatsoever. 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 -- the fisa's individual order requirement had an american is a target. and i would note one more thing is that the president's review group on intelligence communications technologies
5:27 pm
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 americans from warrantless surveillance and that's what closing the back door is about. >> some have argued that we shouldn't worry because section 702 programs the minmization procedures. limit the use and retention of this information. so, i would ask both you and professor medine, do you believe the current minmization procedures ensure that data about innocent americans is deleted? is that enough?
5:28 pm
>> senator leahy, they don't. the minmization procedure requires deletion of americans' information upon discovery to determine if it has any foreign intelligence value. but what the board's review found information is never deleted. it sits in the databases for five years or sometimes longer. the minmization doesn't 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 three there has been a twarnt before the information was collected and the united states we simply can't read people's e-mails or listening to phone calls without a warrant and the same should be true under this program. >> do you agree with that? >> i do agree with that. i think there's this idea if the government has collected the information lawfully it should
5:29 pm
be able to use it for any legitimate government purpose and whatever truth that may have in other contexts it's clearly not the case with section 702 because congress has required minmization. it's the opposite you can use it for any purpose you want and constitutional it's not the case either because the reasonableness inquiry includes an assessment of whether the safeguards on americans' data 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 that targeting foreign intelligence sources using 702 has been not only demonstrated as constitutional but also as effective. and so the question to me is do we want to somewhat limit ourselves in terms of access to foreign intelligence in a way that could make us less safe?
5:30 pm
and that's an important conversation to have. but i'm prettclear on where identify come down. so, the concern is, of course, with what's happening in syria. and with the growth of the islamic state or daesh or whatever you want to call them with the meltdown in libya, where you're seeing a pathway of foreign fighters now making their way into europe where, of course, they don't need a passport to travel among various members states of the european union and many of those countries have visa waiver programs with the united states whether 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 oversight by the
5:31 pm
fisa court which many of my colleagues say is very important to them, by the director of national intelligence, odni, and the department of justice, there's a lot of oversight here and a lot of of the to try to minimize the impact on american citizens. although the fact of the matter is, as i understand, under 702, that the only american citizens who will be impacted by 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. olsen, i want to briefly talk a little bit more about what of thes have been built into this 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
5:32 pm
intelligence community could care less about. >> thank you, senator. as you mentioned, one of the hallmarks of the legislation 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 agencies that implement the law are on the front leap lines of oversight and compliance and fisa plays a robust role. i can tell you that the court is not a rubber stamp. it is aggressive and assertive of 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 minmization procedures as was found the procedures were consistent with the fourth amendment and they were consistent with the statute. in fact, that's the exact opinion that judge hogan recently reached last fall in a case that was declassified
5:33 pm
recently, an 80-page opinion by judge hogan, finding that the government's recent certification was constitution and complied with the law and in particular that the use of fbi queries of 702, the issue that we've been discussing, was also consistent with the law and with the constitution. >> under the fourth amendment the issue is whether the search is reasonable, right? >> yes. >> it's not an outright -- i think some people are suggesting there's some outright prohibition here but under the protective mechanisms as you say built into the statute the courts have upheld access to the communication by an american citizen with somebody who we know is a target of foreign intelligence purposes. let me just -- i know mr. medine didn't mean this seriously but he mentioned sweeping up love letters. my staff tells me that there is a significant case recently the zazi case where terms like wedding cake and marriage were
5:34 pm
used as code words that the terrorist used to plot attacks against the united states. i don't know, mr. olsen, is that something you can talk to us about? >> well, certainly the zazi case was one of the key cases the government referred to over the last several years of the value of the program -- >> in other words, in our zeal to protect love letters we don't want to protect terrorists who use code words that might otherwise escape scrutiny by the intelligence community, isn't that one -- >> that's absolutely right. i'll give a brief example hypothetical two foreign terrorist targets in syria communicating with each other. targets of 702. this is hypothetical, they share a passport photo of an american, that would be viewed by, you know, potentially viewed by nsa in the collection under 702. that passport photo could be innocent, right? it could be just a -- two people sharing a photo of somebody they know, but it certainly would be
5:35 pm
of significant interest to the fbi and the nsa to not only collect that informationics dentally about that u.s. person but then to be able to search 702 quickly to say, okay, who is this person. do two have other information in our 702 database and others. i think that's my perspective coming from the national counterterrorism center what would we would want to do quickly. and without probable cause i may add. certainly that would be in the statute as judge hogan's 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 you -- an american citizen's rights and the bill of rights has to be protected by a court order showing probable cause. terrorists don't have protection under the fourth information nor is probable cause needed to get the information. i think that's the point we need to hammer home because i think people are a little bit confused about that. thank you, mr. chairman.
5:36 pm
>> senator 79feinstein. >> thank you for holding this hearing. it gives us an advance on the hearings that will be held certainly next year. i want t commend those who serve on the p-club board and thank you for your service. 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 frequently. the problem is that the government has been reluctant to declassify sufficient numbers of cases so the public gets an understanding the value of the program. and the zazi case has been used in the 215 situation. oit use it's used intensely in the 702
5:37 pm
situation. for anyone listening it's really important to declassify more of these to show the value of this program. those of us who meet two afternoons a week and go over intelligence and hold hearings and read the intelligence, see the value of the program brr, b think the general public does not. i see it as practical, as 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. and i'd just like to read a couple of things and then that you all comment on them. and he's talking about using a u.s. person identifier and saying that it would impede and
5:38 pm
in some cases preclude the intelligence community's ability to protect the nation against international terrorism and other threats. and then he discusses that such a requirement is not required by the fourth amendment, that it would be impractical a that it's rare that the intelligence community begins an investigation already developed -- having already developeded probable cause and think that's been said by one of our witnesses. i would like to ask mr. medine 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. but the one i'm curious about is on page 16, recommendation 2. updating the fbi's minmization procedures to accurately reflect the bureaus query of 702 data
5:39 pm
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 the board discovered in our investigation was as was indicated that the fbi routinely looks into 702 databases. and not just in investigations but even in assessment when the fbi has absolutely no suspicion of wrongdoing, but they're just sort of entitled to poke around and see if something is going on they nontheless access -- or query the database. but the procedures weren't transparent about that process. >> stop for a minute. are you sayin that the p-club believes that there should be a fisa board approval prior to querying? >> the p-club -- >> prior to query. >> the p-club majority did not
5:40 pm
support fisa approval, but judge patricia wald and i dissented from the board's report and did call -- >> 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. >> sure. on the side of having a query, as i mentioned earlier, under the fourth amendment the government is now accessing americans' american communications and 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 terrorists. this program targets anyone with foreign intelligence value, it could be a completely innocent businessman or anyone out of the country who has that information and 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
5:41 pm
transaction. but all those are being captured and the question is when we shift our attention to these communications should we have court approval. >> all right. i want to hear the other side of the question. ms. brand, would you please? >> thank you, senator feinstein. it's important to keep in mind when you're talking about the fbi and queries of 702 data, you have 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, there's prism and upstream. upstream is more concerning from a privacy standpoint because there could be about collection. they get a subset of 702 data. when concerns are raised about queries of 702 data the concern is not raised about querying 722 data 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 722
5:42 pm
report in discussing this with the fbi they weren't able to give us an example of it ever having happened and it's extremely unlikely and when judge hogan wrote his pin recently he referred to the possibility as remote if not entirely theoretical. as i said in my opening statement, if there is a connection there you want it to be discoverable. so, that was the other side of the story. >> thank you. thank you, mr. chairman. >> yeah. now senator tillis. >> thank you, mr. chairman. i was glad to hear senator feinstein to talk about the program. she has insights that many of us who are not on intelligence that many of us would not have. i think it's important for the american public to understand why it's a useful and important tool. i guess back to the point about declassification, i would guess that some of the apprehension around declassifying some of the other cases could relate to other bad actors, reverse
5:43 pm
engineering how they can avoid detection if they know what patterns were used to identify and thwart the other event so i can kind of see it's not just merely because they want to keep it private, there are probably legitimate future risks that could be -- result in understanding how this data was triangulated and used to thwart an existing attack, is that correct, mr. olsen? >> i think that's generally exactly right, the ability to understand how the government collects this type of information is something the government certainly does not want in the public record. >> yeah. and ms. 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 could move forward with the query. can you talk a little bit about that. i think it also speaks to the alongation of the process of the
5:44 pm
investigation. because while the fisa courts may be able to move 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. olsen and wainstein who have more practical experience with the investigative process. in general investigations progress from using less intrusive means to more intrusive means. at the beginning you may have just have a tip and you want to figure out whether to pursue that tip or not do anything. and so you'll start by doing a query of databases to see what you already know and see if it's worth pursuing. them 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 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 doesn't make sense to me. but mr. wainstein and mr. olsen
5:45 pm
may have more insights into that. >> mr. wainstein? >> i just want to address the speed issue and i think that's something people need to focus on and mr. olsen has been through a number of threat investigations where there's an indication of a threat maybe somebody here in the u.s. and at that point you want the intelligence community operators to get access immediately to every area that there might be 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 could be absolutely critical in a hot threat investigation we've seen that over and over the years. >> would you mind if i speak to the privacy issue a little bit as a representative of the civil liberties community here? i hope the congress would take note that the privacy community is behind the idea of getting a warrant than to allow queries of
5:46 pm
the data. >> are you aware of any examples to this point where it would be likely that the parent would be denied? i'm trying to find the -- and here's the reason why i'm concerned with this. we are in an environment where the number and the severity of threats according to leading people in the intelligence community are at an all-time high. and so time is in the 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 so 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 that the search itself is the vice of the fourth amendment right. i know mr. olsen said there was no evidence of abuse of backdoor
5:47 pm
searches. backdoor searches are the abuse. it's a warrantless search of americans' communications that were gathered based on a representation that the government was not targeted americans. >> this is a search of data that the government is already in possession of? >> it's a search of data that the government is required by law and the fourth amendment to minimize the use and access to u.s. person information. >> and mr., medine, i had a question for you in my remaining time. in your opening comments did i understand you to understand that the p-club didn't necessarily recommend any legislative action but there were additional changes that should be -- or reconcile that, is that correct? would that suggest, then, that the acts as they current stand are sufficient, the implementation needs to be modified or adjusted? >> the senator is correct that the board only recommended administrative changes and as mentioned earlier the government has been very responsive to those and has implemented or is in the process of implementing
5:48 pm
those. one of the other board members judge walden and i did dissent and did recommend the requirement of the requirement of a court approval. if i could add on the classification front. one of the things the board experienced in preparing its report is that we found some facts about the 702 program that we thought could be made public without harming national security. and we had a very positive dialogue 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 allow for 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. and, again, 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.
5:49 pm
>> i'm going to stay here for the remainder of the hearing, so i would be -- yield to someone else. >> thank you, chairman. first, let me welcome ken wainstein back to the committee. he and i were on 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
5:50 pm
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 incidental collection of people who were not the subject of the search warrant from the earliest days of the republic. when we got into wiretapping, it became a little bit more complicated. but once again, you can't list neent conversations of a mob ster -- 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.
5:51 pm
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 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 elaborate a 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
5:52 pm
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. rst 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
5:53 pm
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 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 confederate or my, you know, drug dealing confederate. the judge issued the warrant that authorized the collection
5:54 pm
kbe against me. that is the same thing that is happening in 702. the counter party in the conversation has just the same limited rights to resist the government's ability to listen to that conversation as the counter party that the pizza guy -- in my situation. >> to use your word, the question we face is once that has been legitimately collected and then the government puts night a data base and then enables itself to go search it at will in a large pooled data base, should that be seen as a secondary veevent that suggests the requirement for a gatekeeper before they have full access? my spexpired. i can't continue the conversation any further. thank you, chairman, for the hearing. >> senator? >> thank you very much, mr. chairman. and thank you to center franken for his good work in this area and allowing me to go before him. that was nice. thank you for all you have done and i've had experience with this before, for eight years i managed a prosecutor's office with about 400 people, and have been personally in the room for
5:55 pm
some of these wiretaps. they weren't federal wiretaps, they were local ones. 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 co-sponsored have voted for the bipartisan usa 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
5:56 pm
see? we can go down the line here. mr. wainstein. >> thank you, senator. yes, i do think it strikes the right balance. i believe it does that by providing ample oversight, which is meaningoversight by all three branches. also i think you see that balance being paid out in terms of the internal procedures which are reviewed by the fisa court and also by the intelligence judiciary committees and resulted in the finding of the civil liberties oversight board with the finding there have been no incidents of intentional misuse of authority. which i think is meaningful. >> i also believe it should be
5:57 pm
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 too much data to analyze? and that could be -- 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 type, 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
5:58 pm
terrorist attack. that can be a concern in other contexts i understand more data might obfuscate the needle. in the 702 context, i don't think that's a persuasive argument. >> thank you, mr. goitein. >> 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 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. you're short on time. 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 back door search loophole, includes
5:59 pm
narrowing the definition of foreign intelligence, narrowing the pool of people who can be targeted so it's not just any foreigner overseas and insuring that notice is given any time that 702 evidence is used in court or evidence derived from section 702 is used in legal proceedings. >> do you want to add anything? >> 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. under 702. and following up on senator whitehouse's point, 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
6:00 pm
the fourth amendment would require court approval. >> thank you. last but not least, ms. brand. >> thank you. i would urge congress to reauthorize section 702. i don't think any changes are necessary. i would note that the law in our in depth review of the program and our lengthy report did not recommend legislative changes. we did recommend a number of changes to the way the program operates that could be implemented by the administration or the fisa 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. it is a very 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
6:01 pm
years ago that a special advocate be established to argue before the fisa court, as you know, in cases presenting particularly novel legal issues. 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 of them to serve as amicus. let me begin by asking mr. medine, but this is really a question for the entire panel. could you discuss why they initially recommended this change and how you have assessed the process of the
6:02 pm
implementation? and then, also, whether a technical expert will be shortly 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 approvals of 702.
6:03 pm
i think we've just begun to see how the program is operating so it's too early to test, but i think it's encouraging that an advocate amicus was appointed and was able to make arguments. 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 pclob as well who signed on to the recommendation for a special advocate in the fisa court, what i saw prior to the board's 215 report was a lot of public mistrust and misunderstanding of the fisa court process and a mistrust of the fisa court because it was viewed as a rubber stamp. of course, folks that have served in the justice department like those who have been in the
6:04 pm
process know it's not an accurate description of the fisa court, but the public certainly 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 serves that purpose. the two recent occasions in which the fisa court has appointed an amicus, i think they have been useful to the court and they have 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, mr. medine, to judges who hear one side and the other side, not just an entertainment value. it elucidates questions, it
6:05 pm
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 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 a response, ms. goitein. >> i wanted to thank you for your leadership and insuring that very important provision was part of the usa freedom act. i think it was very important. i do not see the court as a
6:06 pm
rubber stamp at all. i do think it has in the past seen its job, and i've heard this from former national security division 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 therefore, the courts effectively 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 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
6:07 pm
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 not going to go into them. i welcome and thank you for your very, very important work in
6:08 pm
this area. every one of you thank you very much. >> thank you, chairman. i'd like to thank ranking member franken and all of the witnesses for all of your hard work in a difficult area that really is about balancing our national values, our security, and our enduring concerns about privacy. 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 this very able 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 who were present when section
6:09 pm
702 was adopted. it wasn't intended to do this warrantless search of american communications. can any of you proffer an estimate of how many communications with u.s. persons have been collected under 702? i understand it's difficult, but if anyone and give us an estimate, i will welcome that. can you answer the question do you think we should require queries to be tracked in order to obtain information? about how often the section 702 database is used to search for information about u.s. persons? i see ready volunteers. >> a challenge in quantifying how many americans' communications are collected. our board recommended some metrics and i know recently, director clapper has indicated he will be trying to come up with some 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 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. how the program is operating. >> just to add to what david said, the report recommended that the government publish more statistics about the impact of 702 on u.s. persons and i think there's a good story here of how the report is pushing the government to do that. so the administration recently 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
6:10 pm
up with the reliable estimate to satisfy the other three recommendations. the staff is in constant communication with the administration about their efforts to find those numbers. 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. 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. so we can get this information as soon as possible. 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 querier. 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
6:11 pm
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 702. in those cases under title iii, 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. >> let me ask two more. thank you for that addition. let me ask two more questions if i might. first if you'd answer this. and mr. wainstein as well. given section 702 was adopted for foreign intelligence and national security purposes, do
6:12 pm
you have any concerns about whether it's appropriate for americans' communications collected under the statute 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 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. thank you. >> i think the distinction is not so much between foreign and
6:13 pm
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 an individualized order. if it's a criminal case, they go to a magistrate 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 between foreign intelligence work and criminal work, law
6:14 pm
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 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 defendants of the 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 change in policy.
6:15 pm
there have been eight notifications in the last three years. that's against the back drop of hundreds of terrorism and national security 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 notification requirement. the government has been fighting tooth and nail against foia requests to get those policies. that's another area where this committee could be helpful to try to pry those loose. >> thank you, i notice i'm out of time, thank you very much mr. chairman. >> thank you, mr. chairman. mr. goitein, i understood -- i understand you work for senator fine gold when he was on the committee, so welcome back. >> thank you. >> i would like to focus for a
6:16 pm
moment on the question of transparency and our surveillance programs. last year, we passed the usa freedom act, bipartisan bill, which brought much needed reforms to the federal government's surveillance programs, including an end to the bulk data collection program that the intelligence community said wasn't necessary and that the public said it didn't support. i was a proud co-sponsor of the bill. i was proud to develop the provisions with dean heller of nevada. senator heller and i recognized 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,
6:17 pm
whether we are safeguarding our national security without trampling on our citizens' fundamental private rights, 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 and that's why my focus has been on transparency and why senator heller and i crafted the provisions in usa freedom that require the government to issue detailed annual reports for the surveillance of authorities at issue, importantly, the government now has to provide the public with estimates of how many people they have 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 has run searches for americans' 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
6:18 pm
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 inevitably come both suspicion and the possibility for abuse. i and many others firmly believe there would have been less public outcry from the snowden 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 fisa section 702. 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 house judiciary committee asked for just an estimate of the number of americans affected but thus far, no one has received a
6:19 pm
satisfying answer. ms. goitein, 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, and 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 to work with the intelligence committee to try to find a privacy protected way of generating an estimate. it should be possible, and i think 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 give them a truer sense of what the program entails, which they need in order to make their own decision and participate in the
6:20 pm
democratic process. >> 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, 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 think it's a large amount of information over five years that's collected. i'd add that this -- our report
6:21 pm
of 702 has been helpful for europeans as well. i was involved recently in the privacy shield negotiations where they had a misunderstanding of 702. it's a targeted program. it's not bulk collection. there are a lot of targets but 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 she might have wanted to answer that, but 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
6:22 pm
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 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 one of the privacy and several liberty oversight board's recommendations was to provide additional transparency surrounded 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
6:23 pm
the implementation of the executive branch. >> thank you, senator. yes, this was one of the important recommendations the pclob made in terms of amending the way the program is operated. i agree with some of what was said about the importance of transparency in the program because it is hard to judge the impact of u.s. persons in the program without knowing the extent to which their communications are collected. the government, we have had an ongoing dialogue with the administration about how to get more information to the public about this. it is very difficult if not impossible to come up with an exact number. because 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 resource intensive to investigate it and possibly more privacy intrusive than not investigating it.
6:24 pm
we did think that there were some aspects of the program that could be measured. so we recommended five. they were the number of 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 30ing, saturday before last, the dni issued its 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
6:25 pm
recommendations. they're working hard to do that. we're in contact with the nsa last week about that. the staff is coming to talk to our staff about it, so we're going to continue to press on that and we expect them 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.
6:26 pm
they've set up a number of steps in the preceding paragraph. 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.
6:27 pm
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 collection be governed by minimization procedures that restrict how the intelligence community treats any person. the best of my knowledge, the fisa court has to review these minimization procedures annually and approve them along with the 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 pclob 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
6:28 pm
page six of that. nsa's minimization procedures expressly prohibit dissemination of information about u.s. persons in any nsa report. 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
6:29 pm
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, 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 pclob.
6:30 pm
it seems to me that's responsive to the concern, is it ms. goitein. >> it's goitein. >> pardon me. >> goitein. >> goitein, excuse me. glad i asked. ms. goitein's comments. would anyone like to comment on that? i'm looking at you. since the pclob receives this. i would appreciate a pclob response. >> 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
6:31 pm
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. which would have meant a lot of communications were intentionally captured. the board dug deep on that question and concluded it's about a 99 plus percent chance it's a non-american because it's a rigorous process to determine who is or not an 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 sufficiently why it was looking at the information. it was important for them to put that on paper. that's a recommendation they accepted and have now implemented to make sure there's a greater rationale for these 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
6:32 pm
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 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 an unclassified number, mr. olson, of about 1,000 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 pclob'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
6:33 pm
of the programs is really important. and it would be most unfortunate and it would expose this country if that program were made ineffective. the key really is to do what we can, and 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. and if anybody has a comment. >> yes, i'm twitching over here.
6:34 pm
i wanted to 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? >> back door search is 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 overseas. >> regardless of the minimization that was properly carried out? >> the data is searched in the unminimized search. 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, communications without a warrant with the intent of mining it for use in criminal cases against americans. >> that's where you and i
6:35 pm
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 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. on the fisa court. what makes it lawful to collect without a warrant is in part restrictions on how that data can be used on the back end. >> let's have somebody respond to that. >> may i respond? i think you're on to something very important when you mention minimization. because there are extensive rules and protections that surround the u.s. of u.s. person queries. at the cia and nsa, the report went to extensive detail how and
6:36 pm
under what circumstances the agencies may perform a u.s. person queries. what ms. goitein refers to as a back door search. 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 department. and then with respect to the fbi, the fbi does not track u.s. person queries separately. for non-u.s. person queries. 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 query in a regular criminal investigation, that information could not be viewed by the analysts to conduct the query unless they're trained in using
6:37 pm
fisa information. 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 the u.s. district court in colorado where a defendant did a motion to suppress information collected under 702 after the government notified him that had it been collected. the policy change was late in coming but it's now happening. it's important to keep the limitations in mind. >> i appreciate that. >> if i could make maybe a broad point, which is that the targeted procedures, senator, that you identified in the first document you read, the transparency figures in the dni's report, i think really highlight along with ms. brand's, and most of the discussion today, this success that the fisa act and 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 in careful ways a report
6:38 pm
that is important. 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 searches. it's a misnomer to call searches of lawfully collected data that ever judge who has looked at has upheld when they had a chance to review those searches, that is not a backdoor search. that's the way the law is intended to be used under the careful limitations that the minimization 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.
6:39 pm
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 to prevent another attack in this country. and i hope there will be more declassified examples before the year turns and we're in 2017 and 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. i want to thank the 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,
6:40 pm
which this goes to the core of all of this, which is that we have had some very important information from 702 that has thwarted terrorist attacks. and so this is absolutely 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. ms. goitein mentioned parallel construction, which is -- and again, this is -- the framers
6:41 pm
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.
6:42 pm
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. ms. goitein, i saw you reach for the bautin. >> i got to tame this finger a little bit because 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
6:43 pm
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 for another seven days. is that right? and we're now adjourned.
6:44 pm
6:45 pm
tonight on c-span3 at 8:00 p.m. eastern ashgs senate commerce committee hearing on the do not call list ashgs national registry of phone numbers people ready not to receive telemarketing calls. the committee also looked at the 1991 law that bans automatic dialing or robo calls for
6:46 pm
telephone solicitations. >> this september marks the opening of the smithsonian museum of african-american history and culture. on saturday morning, beginning at 8. 306789, american history tv is live for an all day coverage with scholars across the country discussing religion, politics, culture, and interpretation. at 10:00 p.m. eastern on real america, the 1975 church committee hearings con veenld to investigate the intelligence activities of the cia, fbi, irs, and the nsa. the commission hears testimony from two fbi informants, mary joe cook and how she penetrated an anti-vietnam war organization and gary thomas roe who infiltrated the clan and participated in violence against civil rights activists.
6:47 pm
>> you mean you told the fbi that? >> that's correct. >> and then were they beaten? >> they were beaten very bad lishgs yes. >> and did the birmingham police give you the time that they promised to give you to perform the beating? >> yes, sir. we were promised 15 minutes with absolutely no intervention from any police officer whatsoever. >> then at 8:00, on lectures of history. >> what that opportunity gave them was an opportunity to go to college. they saved some of that money. they sent themselves through college. they sent siblings through college. they became doctors and lawyers. they became principals. surgeons, politicians, pilots, and they were able to do that because they had access to
6:48 pm
professional baseball. >> marshal university professor on how women aided the war effort and factories and military auxiliary units and the rise of women's baseball leagues including the all american girls professional baseball league if he toured in the movie "a league of their own" sunday night at 10:00 on road to the white house rewind. >> ladies and gentlemen of the convention, my name is geraldine ferrero. i stand before you to proclaim tonight america is the land where dreams can come true. >> the
6:49 pm
geraldine ferraro. for the complete american history tv weekend schedule go, to c-span.org. >> a week from tomorrow on c-span, the libertarian party convention in orlando, florida, two former republican governors, gary johnson of new mexico and bill weld of massachusetts are seeking a nomination for president and vice president. the libertarian party convention comes up saturday, may 28th, and you'll be able to watch it live on c-span starting at 8:00 p.m. eastern. >> most of our government related programs like the house, senate, and congressional hearings stream live on the site. so if you're away from your television, can you watch on your desktop, laptop, even your smart phone or tablet. they archive all of the programs
6:50 pm
online on the video library. if you miss an episode of washington journal, book tv, or any program, you can find it online and watch it at your convenience. in fact, the c-span video conta 200,000 hours of c-span programs and its powerful search engine helps you find and watch programs going back many years. to watch on your television, c-span publishes its on-air schedule for all three networks and its radio station. just click on the schedule link. c-span.org is a public service on your cable or satellite provider. is if you're a c-span watcher, check it out. it's on the web at c-span.org. up next, petter nesser on islamist terrorism. he said most terrorist attacks are motivated by western involvement in conflicts in the muslim world and that most terrorists today were inspired by the u.s.-war led in iraq.
6:51 pm
>> so, again, welcome, i'm david serman, senior program associate here at new america's international security program. we're going to hear from dr. petter nesser, senior fellow at the norwegian defense research establishment on his latest book which encapsulates a lot of the research he's been doing on terrorism. the book's entitled, "islamist terrorism in europe: a history." it's also available odutside if you'd like a copy. i'm sure he'd be happy to sign them afterwards. and without further adieu, i turn it over to you to give us your presentation. >> thank you.
6:52 pm
okay. so, first of all, i want to express my gratitude to new america and to peter bergen for giving me this opportunity to present my new book on jihadi terrorism in europe. a historical study. also, thank david for organizing the event. and moderating after my presentation. the book is based on more than 12 years of research at the defense research establishment and its terrorism research group. i think one of the main -- or the value added of this book compared to many other books on terrorism in general and also on
6:53 pm
terrorism -- jihadi terrorism in europe is historical dimension, of course. the attacks in paris and brussels lately have historical roots both within and without europe. i think it's important that we base our understanding of this threat and also think about counterpolicy. when we do that, we also need to take into account the historical dimension. so, the book examines jihadi terrorism in western europe between 1994 and 2015. i gather information about more than 150 terrorist plots and study more than 40 of them in detail. i look at the biographies of the terrorists, how they're radicalized and how they join
6:54 pm
forces to launch an attack. i examine in detail what they say, what they have said, what they've done on their road to militancy. i also look at how they operate, but today i will focus on how terrorists cells are formed which is the main outfit of the book. the book starts with the attack by the al qaeda-linked algerian terrorist group, the g.i.a., to down an air france jet over paris. and in 1995. and the bomb campaign the following year. or in 1994 to 1995. i end the book with the attacks on "charlie" and the offices of "charlie hebdo" in the same city two decades later.
6:55 pm
this slide shows the number of plots per year. when i talk about plot, i include failed, foiled and executed attacks by individuals and groups, networks that could be defined as jihadi and by jihadi i prefer to anything that emanates from the foreign fighter movement of the african jihad, groups, network, and also ideology. i use the objective jihadi to refer to that. what i aim to explain in the book is what drives jihadi in europe, and and why these terrorists strike when and where they do also and by doing that i want to shed light on what goes on within the networks or within the networks more generally. this overview of plots per year
6:56 pm
gives some indication as to why plots occur. and it also, i think, raises some serious questions about the perception or the term "homegrown." we can see that the number goes up amid armed conflict in western countries such as the algerian civil war in the mid 1990s. the iraq war in 2003, 2004. on the overview there. and also we see an uptick in the plots in connection with the syrian uprising. i also find that escalation in the israeli/palestinian conflict may also have affected the threat pattern. arrests of jihadi leadership figures in europe.
6:57 pm
i say this both because these events coincide in time, but also because qualitative analysis of what perpetrators have said indicates this. the only event inside europe that seems to have profoundly affected activity is the danish muhammad cartoons published in 2005. there was a substantial increase in the number of plots in sand na scandinavia following the cartoons and most of these plots were aimed at people and institutions involved in the cartoons. and if you look at the distribution of plots in europe over time, it has been france and the uk that have been most exposed to plots. france and the uk are the main enemies of the jihadis in europe. but what is interesting is that in the period following the
6:58 pm
muhammad cartoons from 2005 to 2013, we see actually the number of plots in scandinavia, mainly in denmark, actually is higher than the number of plots in france and france is widely considered the archenemy of jihadists in europe. that -- this event in scandinavia kind of affected -- or the stat indicate that this is a homegrown driver. that's a difficult question, but because many of the people who are involved in plots to avenge the cartoons were under influence by pundits, jihadi leaders, al qaeda spokesfigures in conflict zones and pursued or
6:59 pm
operated within the framework of the groups in conflict zones so you can also ask the question how homegrown is this die mention of the threat pattern? overall, that attacks are linked to western interference, muhammad cartoons is hardly surprising at all and it's completely in tern with what al qaeda are saying about the strategy and their ideology. so this is not something surprising at all. however, this, alone, does not explain terrorist cell formation. and to find out more, i explore network dynamics, which is the main focus on my work. so what about a network? ne nearly all the plots i study can be traced to one same network. this network was formed first in the early 19 the90s of the
7:00 pm
afghan jihad mainly in london then spread across the region. the network expanded through constant interplay with success st groups operating out of zones. i mentioned the g.i.a. and algeria in the 1990s. various al qaeda and affiliates throughout the 2000s and i.s. today. hubs in the network the way i interpret it or formed around what i refer to as critical masses of militant activists who have authority, experience, and contacts. this is where the hubs have been forming in the network. in principle, i argue that hubs may emerge anywhere and under different circumstances. and they have.

10 Views

info Stream Only

Uploaded by TV Archive on