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tv   Senators Seek Answers on Monitored Calls with Foreign Leaders at FISA...  CSPAN  June 27, 2017 9:32am-12:20pm EDT

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on the foreign intelligence act or fisa. the senate judiciary committee is and just a clarification senator ranks member is diane fi finestien. this should start in just a moment. today's public hearing will be followed bay classified briefing tomorrow afternoon. this committee last held an oversight hearing on section 702
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in may of 2016. since then the drum beat of terror attacks against the united states and other countries particularly our allies has continued. a month after our hearing a terrorist attacked an orlando nightclub killing 50 and wounding 53. that same month a terrorist detonated pipe bombs in new jersey and new york injuring about 30. last month great britain suffered its worst terror attack in over a decaddecade. it is at a concert in manchester. many of the dead and wounded, as you know, were children and very young people. these attacks underscore that the first responsibility of government is to ensure that
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those who protect us every day have the tool to keep us safe. when i said government i should have said of the united states government under our constitution. these tools must adapt to the technological landscape and evolving security threats that we face. at the same time of course the rights and liberties enshrined in the constitution are fixed. section 702 of fisa amendments act which provides the government, the authority to collect the electronic communications of foreigners located outside of the united states with the compelled assistance of american companies sits at the intersection of these responsibilities.
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under section 702 it's against law to target anyone in the united states or any american citizen where ever that citizen is on this globe. the statute also prohibits reverse targeting. that term means targeting somebody outside the united states for the purpose of targeting somebody inside. under the statute the fisa court must approve targeting minimumization procedures to ensure that only appropriate individuals are subject to this surveillance. these procedures also limit the handling and use of any communications so collected. an implementation is overseen by
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all three branches of the government including the appropriate inspectors general. after much debate and after much discussion this law was passed by congress and signed by president bush in 2008. the obama administration requested it be authorized and congress did just that in 2012. president trump's administration is making the same request. from all accounts section 702 has proven highly valuable in helping protect the united states. the privacy and civil liberties oversight board found that section 702 has helped the united states learn more about the membership, the leadership
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structure, priorities, tactics and plans of international terrorist organizations and has enabled the discovery of previously unknown terrorist operatives as well as locations and movements of suspects already known to the government. end of the quote from that oversight board. the board concluded that section 02 has lead to the discovery of previously unknown terrorist plots directed against the united states and foreign countries enabling the disruption of these plots. moreover the board, the fisa court and other federal courts have found the implementation of section 702 lawful and consistent with the fourth amendment. in addition the board proposed a
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number of recommendations in its report to help improve the privacy and the civil liberty protections of section 702 program. according to the boards most recent assessment report all of its recommendations have been implemented in full or in part or the relative agency has taken significant steps towards adopting these recommendations. in 2016 a heritage foundation report concluded that 702 is a quote critical and inslalable tool for american intelligence professionals and officials so vie sal to america's nailal zhaurt congress should reauthorize section 702 in its current form. but as is always the case with
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policy issues here in the congress, particularly wean the freedom of the american people we do have questions and concerns that persist for some about sections 702s effect on the civil liberties. some of these concerns relate to communications incidentally collected when it turns out that a targeted foreigner is in contact with somebody inside the united states or with an american. of course there's often no way to know who a surveillance target may be in contact with beforehand. that's in part why they are under surveillance in the first place. these are situations where the program can be highly valuable by letting our government know
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if a foreign terrorist plot might reach our shores. still, the unknown scope of this election is concerning to many. we ought to understand that. some are also concerned with the way in which is t fbi permitted to search already collected 702 material. however it was precisely this kind of information sharing that was by the 9/11 commission that con vi convened after the ft. hood attack. law enforcement needs to be able to protect the american people.
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although these allegations haven't been directed for 702 specifically they are highly troubling. leaks of classified information that damage our national security seem to continue unabated. i understand that no internal or external review to date has found any evidence of intentional abuse of section 702 for any reason what so ever. nonetheless, it is important that congress made sure that it hasn't sb hasn't been so abused and it's equally important that we secure that the justice department has all of the tools it needs to
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prosecute leaksover classified information. so taking all of these things into consideration is one of the reasons and the main purpose for having this but national security has to be at the top of the list. and so we welcome or witnesses and look forward to their testimony today and don't forget the classified briefing tomorrow. >> thanks very much. i too welcome our witnesses. i know they are rather grim faced. i hope there will be a smile or two forthcoming. i want to say thank you for holding this hearing. let me begin by saying i fully support reauthorization of the fisa amendments act including section 702. earlier this month the intelligence committee of which i am a long time member along with senator cornen held a hearing on section 702 of fisa.
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this will likely neen intelligence will be passing a bill very shortly. in fact senator cotton and a number of other republican senators on the intelligence committee have offered a bill which would permanently authorize the fisa amendments act including section 702 without the five year sunset. i would note however that senator cotton's bill was refer today this committee and there's a reason and that is because this committee has is jurisdiction over both fisa and 702, particularly given the impact on americans communications and privacy. so i think it's important that our committee get to work quickly on reauthorization of 702 which as we know is a very
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critical program in the collection of valid intelligence. let me state at the outset that i believe any reauthorization should include a sunset provision and without it it will not have my sport. congress has an important role to play in these measures. society changes. the world changes, technology and communications change. a sunset allows us to review and revise such as may be necessary due to technology changes as well as other changes that happen at such a rapid pace. currently the government is required to obtain approval from the fisa court every year before continuing its content election under 702. congress should have this same ability to review and evaluate this program on a periodic
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basis. a sunset provision allows us to do just that. as a matter of fact it's five years now. i would urge that it with six years because that takes it outside of an election year. let me restate that i fully support the 702 program. i believe it's a vital counter terrorism tool. the intelligence committee under both democratic and republican administrations has consistently stated that the program produces critical foreign information to protect the nation against international terror and other threats. the privacy and civil liberties oversite board that has conducted an extensive review and down clooded that the information the program collects has been valuable and effective
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in protecting the nation's security and producing useful foreign intelligence. the section 702 program also includes a number of safeguards to ensure the protection of privacy and civil liberties. under current law, for example, section 702 authorizes the targeted collection of the content of internet and phone communications only -- and i underline that of foreigners who are located outside of the united states and only underlined for the purpose of gathering foreign intelligence information. moreover although there have been some compliance incidents over the years there has never been a finding of intentional abuse of 702 authorities, never.
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in fact the privacy and civil liberties oversite board found and i quote no trace of any such illegitimate activity associated with the program or any intent to circumvent legal limits. in addition the program is subject to extensive oversite by the foreign intelligence sur value answer court, the fisa court, the relevant inspectors general and dedicated internal ov oversight personnel at the odni. the other reform we might take a look at is requiring the fisa court to appoint an outside couns council each time the government seeks court approval of the annual certification that happens every year to continue
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the section 702 program. this was actually done on the last certification. i think it's helpful in reassuring people that there is an independent individual in the court reviewing these matters. mr. chairman, i want to thank you for calling this hearing particularly since we have the jurisdiction to play this role. i hope we can get our act together and take a look at the bill that is here that senator cotton has introduced and that we can move it but with a sunset clause. so i want to thank the witnesses for being here today and thank you, mr. chairman. >> in regard to your question on process, you and i have not talked about that process yet, but our staffs at the highest level have been talking about
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this and we'll wait until they report to us. >> i su assume they are not goi to change our right. and then we'll ask questions. we'll have five-minute rounds of questions. bradley brooker serves has acting general consul and official for the office of the director of national intelligence and previously worked as an attorney at an national law firm. mr. brooker is a graduate of arizona state university and american university and washington college of law. st stuart evans serves as deputy attorney at the united states department of justice.
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he previously served in a number of career positions within the department of justice's national security division as both chief and deputy chief as counter terrorism unit. he obtained his law degree from columbia university. carl ghattas serves as the deputy assistant director of the national security branch at the fbi. he leads the operations and intelligence efforts in national security matters, ranging from terrorism to espionage to weapons of mass destruction. in 2014 he was appointed special agent in charge of the washington field office's counter terrorism program and most recently served as assistant director count terrorism division. he earned a bachelor of arts
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degree from duke university and a juris doctorate from washington university. paul morris is the deputy general consul for operations at nsa. he oversees the agency's practice groups for legislation, intelligence law and information assurance and cyber security. mr. moss r he received his under graduate degree from university of maryland and his law degree from george washington university. if you have longer statements, they'll be put in the record. when the red light comes on, try to summarize as best you can to try to finish shortly thereafter. >> charm grassly, ranking member feinstein, members of the committee, we all want to thank you for holding this hearing and having us here today.
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as you know, intelligence collection under section 702 has produced and continues to produce significant intelligences that vital to protection the nation about threats whether they be counter terrorism, weapons proliferation or cyber threats. permanent reauthorization of the fisa act without further amendment is the intelligence community's top priority this year. i want to begin by giving a recently declassified example of the impact of section 702. before rising to become the second in command in isis, was a leading focus of nsa's
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counter terrorism efforts. nsa spent over two years looking for him. this search was ultimately successful primarily because of section 702. indeed, based almost exclusively on intelligence activities under section 702 nsa collected a significant body of foreign intelligence about the activities of i ma'am and his associates. u.s. forces returne
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fire killing haji iman and his other associates at that location. this is just one example. although many of the successes enabled by section 702 are highly classified and we'd like to discuss them tomorrow in more detail at the classified session, the purpose of the authority is to give the i.c. and the u.s. government the upper hand in trying to avert attacks against our citizens and our allies before they transpire. 702 provides strong protections for the privacy and civil liberties of our citizens.
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i do want to briefly highlight two things. first, section 702 has several important legal restrictions that protect the constitutional and privacy rights of our citizens. second, the program is subject to rigorous and frequent oversight by all three branches of government. i want to stress what both the chair and ranking member stressed earlier. we are particularly proud of our oversight records. both have shown extremely low error rates and we have not once found an intentional violation of the law. there have been mistakes. as a recent example of the oversight process at work, nsa identified a compliance incident involving queries of u.s. persons in the section two acquired upstream collection. it was identified, it was reported. the interagency worked together
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to find a solution and we have moved forward. before i conclude, i do want to speak about one issue that i know has been subject of much public decision. there has been a push from both congress and the advocacy community for nsa to attempt to count the number of united states persons whose communications are incidentally acquired under section 702. nsa has made significant efforts to devise accounting strategy that would be accurate and that would respond to the question asked. unfortunately we were unable to develop an accurate, meaningful and cost effective methodology. nsa would be required to conduct additional research to determine if individuals are u.s. persons. first, we would be asked trained nsa analysts to conduct intense identify verification research on potential u.s. persons who are not a target of investigation. from a privacy and civil
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liberties perspective, we find this unpalatable. the dni has made clear he cannot justify such a diversion of critical resources, particularly at a time when we face serious threats. even if we decided the intrusions were justified and even if we had unlimited staff to tackle this problem, we still do not believe it's possible to come up with an accurate measurable result. thank you for the opportunity to be here today and to speak with you about this vital national security program. with mr. brookers' introduction as a backdrop we want to turn to why it became necessary to enact 702.
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fisa was first passed in 1978, created a way for the government to obtain court orders for electronic surveillance of suspected spies, terrorists and foreign officials located inside the united states. congress largely carved out of fisa's regime surveillance directed at foreigners located abroad. the reason for that is that foreigners located abroad are not protected by the fourth amendment while individuals located inside the united states are. congress accomplished this distinction in large part by defining electronic surveillance based on technology in existence at the time. in the early 1970s overseas communications were predominantly carried by satellite. fisa did not require a court order for the collection of those overseas satellite communications. if in 1980 nsa interexceptcepte
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satellite communication -- by 2008 technology had changed considerably. first, u.s. based e-mail services were now being used by people all over the world. second, the overseas communications that in the '70s were carried by satellite were carried by fiberoptic cables. a additional fisa court order was required to compel a u.s. based company to assist in that collection. under traditional fisa, a court order can only be obtained based on a showing of probable cause that the target of the surveillance is a foreign power or agent of a foreign power. this is a difficult, time consuming and resource intensive process. in sum, because of changes in technology, before section 702 was enacted the same resource
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intensive legal process was being used to conduct surveillance of foreigners located abroad who are not protected by the fourth amendment as was being used with respect to individuals located inside the united states who are protected by the fourth amendment. by enacting section 702 in twag2008 and renewing it in 2012, congress corrected this anomaly and restored the balance of protections established by the original fisa statute. although i won't go into extensive detail in my remarks,ly note a few key items. first the statute requires certifications from the attorney general and the director of national intelligence authorizing the type os of foren intelligence communication the authority may acquire under this authority. second the statute requires targeting procedures and minimization procedures. the targeting procedures and the attorney general guidelines set
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fortd the ru forth the rules by which the intelligence community ensures that foreign persons abroad are targeted eed for collection. and finally, the fisa court reviews each section 702 certification to make sure that the government's program is consistent with the statute and the fourth amendment. we have declassified and publicly released lightly redacted versions of all of these documents to ensure the public has a good understanding of how we use this authority. importantly, the government section 702 program is subjected to rigorous and frequent oversight by all three branches of government. the first line of oversight is within the agencies themselves. the vast majority of incidents are self-reported. doj and odni conduct regular
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reviews on targeting procedures and on the querying of collected data. further, we have regular engagements with and extensive reporting to congress about section 702. the judiciary and intelligence committees receive opinions of the fisa court and associated pleadings and descriptions and analyses of every compliance incident. importantly the fisa court itself regularly checks our work, both through the annual recertification process and through regular interactions regarding particular instances of noncompliance. the members of the fisa court are federal district court judges appointed by the chief judges. as we've now seen from numerous declassified fisa court opinions, their review of the government's compliance with section 702 is exacting and thorough. as mr. brooker indicated, reviews of the program conducted by doj and odni have showed that
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rates are extremely low, consistently less than 1% and we have never founds an intention violation in the program. in 2014 the independent privacy and civil liberties oversight board confirmed these findings. the board unanimously stated that it was impress boed by the go rigor of the government's -- we do find errors and compliance incident. when that happens, we ensure they are reported and collected. i'll turn to my colleague from the fbi to discuss the fbi's implementation of section 702. >> mr. chairman, ranking member, members of the committee, good morning. section 702 is an extremely valuable and critical investigative tool for the fbi. every fbi division conducting
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national security investigations defendant benefits from information collected by 702. that's whether the information is shared as a tip or collected on a target relevant to an fbi investigation. let me share with you an example which i exercising my discretion as an original classification authority have determined can be declassified to help the american people better understand the value of section 702 especially with respect to its fight with isis. in october 2013, the fbi started investigating shawn parson, a foreign person from trinidad and to b tobago. this was after he expressed online to commit an attack against western interests. we used a range of investigative tools and techniques including 702. we did this in an effort to detect any attack planning that was underway and assess the extent of his influence.
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in november 2014 parson traveled from trinidad and tobago to syria and became increasingly vocal online. the information collected pursuant 702 revealed that parson was a trusted member of an isis network. parson was a key player in this network. the network used the internet and social media to distribute prolific amounts of english language terrorist propaganda. they encouraged their follows to carry out attacks. they used social media daily and directed communications with people rapid fire and spread their message encouraging peel to attac -- people to attack. parson was a native english speaker and he even appeared in an isis recruiting video. this network identified american
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military men and women and posted their names and addresses online. they instructed their online followers to kill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking they are safe, unquote. parson encouraged his followers to attack u.s. police officers, u.s. military bases located in colorado, ohio and soft targets in new york city, chicago and los angeles. information obtained through section 702 coverage not only revealed parson's persistent terrorist propaganda but it was instrumental in identifying additional members of parson's network. the fbi shared this information with the rest of the intelligence community. we also shared it with trusts international partners. sharing parson's contacts with our international partners was critical as it led to the identification of additional isis facilitators and supporters in those countries and it potentially prevented attacks in those countries as well.
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parson was eventually killed in syria in september 2015. let me talk next about the fbi's practice in querying 702 collection. with regard to that collection, it's important to remember that the fbi receives a small fraction of the total collection that nsa acquires under this program. in fact, the fbi only receives a small percentage of nsa's downstream collection and none of the up treatment collection. the reason is that -- is relevant to a pending, full investigation. the fbi cannot receive section 702 during a preliminary inquery or an assessment. those queries are run against a small fraction of the total 702 collection acquired by the u.s.
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government. when the fbi runs a u.s. person identifier through our database,s that run through 702 collection that's obtained during fbi full investigations and not the total collection maintained by the nsa. the intelligence community and the fbi utilize 702 -- after those communications are collected they're retained in our database and are available for authorized fbi agents and analysts to subsequently query. later, when a tip or lead suggests that a u.s. person located here may pose a threat, one of the best investigative steps is to search existing collection to determine what kind of threat we're dealing with. this is what helps us connect the dots.
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finally i'm aware that some critics of the 702 collection program have suggested that the fbi should obtain a warrant before querying a u.s. person identifier against our 702 collection. imposing a warrant would severely hamper our operations by creating a barrier between the fbi -- i'm happy to answer any further questions you may have about this particular subject during the source of this hearing. thank you at this point for allowing me to make these remarks. now i'll turn it over to mr. morris from the nsa. >> mr. chairman, ranking member and members of the committee, thank you for this opportunity to speak with you today about fisa amendments act and specifically section 702 which is a critical national security authority. section 702 may only be used by
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the intelligence community to target foreign persons located outside the united states. my name is paul morris. i am nsa's deputy counsel for. operations. every day i have the opportunity to see the importance of section 702 to the united states national security. i also participate in the robust oversight regime that governs section 702. it's those two subjects that i would like to speak with you about briefly today. section 702 is one of the most valuable operational authorities the intelligence community has. it is responsible for thousands of intelligence reports per year. here are three brief examples of section 702's value. nsa's analysis of section 702 collection discovered the communications of a member of a major terrorist group in the
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middle east who was communicating with an extremist in europe who was sharing ideas on how to commit a terrorist attack. specifically nsa discovered communications where the individual in europe was discussing the purchase of material to build a suicide belt. nsa shared this critical information with european partners in an attempt to disrupt further attacks. we also use section 702 to learn about sanctions evasion activity by a sanctions restricted counte country. the usefulness of section 702 goes beyond finding terrorists and. stoppi stopping shipments of sanctioned goods. in 2016 thanks in part to nsa section 702 collection, the
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agency was able to obtain intelligence on a phone application that impacted cyber security and was not publicly known. the app was ultimately removed from the various phone application marketplaces. this last example illustrates how all of us are better off because of 702. the other aspect that i would like to discuss today is the robust internal oversight that governs the program, beginning with the initial decision to nominate a foreign person for targeting. an analyst must conduct research to determine whether the target is a foreign person outs side the united states who possesses or is likely to communicate foreign intelligence information that is relevant to a certification that har ks been executed. two other nsa employees who are also trained in the proper
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targeting under section 702 must review the proposed targeting all before the targeting occurs. finally a copy of the nsa's targeting sheet will be provided for external review. in addition to the targeting process, nsa's office of general counsel worked hand in hand with and lis analysts and operators to ensure compliance with the law. we also have a separate compliance group which regularly performs reviews of nsa's personnel's access to information. finally we have an office of inspector general that possesses broad and independent authority to review 702 activities for compliance with the law. this leads me to one very important and recent inspector
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general finding that mr. brooker mentioned. nsa's inspector general identified a compliance matter that ultimately led to our announcement in april of the suspension of abouts collection. abouts communications come with heightened u.s. persons privacy concerned. we terminated abouts collection after a review. ultimately we concluded we could stop collecting abouts communications but retain the aspect of 702 upstream collection that is currently providing the most current operational value. in short, nsa expends significant resources examining its use of section 702 to ensure the program is both operationally effective and also protective of american's privacy.
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>> we'll have five minute rounds. mr. evans, before i ask you a question, i'll give this background, because some people have suggested that the government should have to get judicial approval or even a warrant before searching lawfully collected section 702 information using u.s. person information such as name, phone number or e-mail address, particularly in nonnational security investigations. so what is the administration's view about whether there is any legal or constitutional reason why this is necessary and what would be the impact if congress decided to add a warrant requirement before agents could conduct these database checks? >> the executive branch has
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outlined in several filings what our position is on this as a legal matter, which is that legally speaking under both the statute and the fourth amendment to the constitution, a warrant is not required to conduct these so-called queries. i think the first thing to understanding why that's the case is understanding what a query is. we are not acquiring any new information. we are not conducting any additional surveillance. it's is there any a targeted review of information already in our possession that we've gathered through the surveillance previously of a foreigner located overseas. and that matters for fourth amendment purposes because whether a warrant is required under the fourth amendment matters on how you acquire the information. here all of the information we're talking about was acquired through the targeting of foreigners located abroad and collected for foreign intelligence purposes.
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every court to consider this issue -- not just the fisa court, also federal district courts have reached the conclusion that as a legal matter, a warrant isn't required to collect that information in the first place and isn't required to review it after we've collected it. as a policy matter, imposing a warrant requirement would effectively as a practical matter prohibit these queries from being done for a wide range of reasons. first probable cause is a very high threshold and a query is a baseline investigative technique that is used in the early stages of an investigation to rule someone in, rule someone out, try to connect the dots. at that stage of an investigation it's often the case that probable cause won't exist. that's one reason it's problematic. a second reason is time and volume. because of the speed these queries need to be run and the volume, requiring a court order
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for them would effectively grind the entire fisa process to a halt. >> in a recently declassified april 2017 decision, the fisa court revealed that it was concerned about an institutional -- and these are their words -- lack of candor on nsa's part concerning reporting and compliance with section 702 minimization procedures. in addition, the court seemed to have very harsh words for the fbi, saying and i quote, that the court was concerned about the fbi's apparent disregard of minimization rules and whether the fbi may be engaging in disclosure of raw section 702 information that have not been
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reported, end of quote. question, i think it's really important satisfying some people what are the nsa and the fbi doing to address these specific concerns of the court? and this will have to be my last question. so both of you answer that, if you would. >> thank you, mr. chairman. i'll go first since the first quote you read concerned nsa. we take our duty of candor to the foreign intelligence court very very seriously. obviously i cannot speak for judge collier, what she meant specifically when she wrote that in the opinion. but my understanding factually of what happened was as follows. we had initially identified that we had made some errors of u.s. person queries against our upstream collection. since 2011 our minimization procedures had prohibited out right any u.s. person queries
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running against upstream 702 collection, largely because of abouts communications. we had reports the initial queriers in 2015 when we made our report but our office of inspector general had several reviews ongoing to try to determine the scope and scale of the problem. during the course of filing the renewal for the 702 certifications that were pending, the court held a hearing in early october 2016 when it asked about various compliance matters to include the improper queries. we reported on the status of those investigations as we knew them to be at that time. about two or three weeks later, the office of inspector general completed it follow up review of the u.s. person query and discovered that the scope of the
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problem was larger than originally reported. as soon as we identified that the problem was larger than we thought it was, we node fied the justice department and the odni. in turn, the court was notified and the court held a hearing on october 26th to go into further detail about the problem that ultimately led to a couple of extensions of the certifications and ultimately our decision to terminate abouts collection in order to remedy the compliance problem. so my sense is that the intuitional lack of candor the court was referring to was frustration. when we had the hearing on october 6th we did not know the full scope of the problem until later. certainly the agency believes
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it's absolutely essential to have full transparency with our overseers. >> senator, the fbi takes very seriously its reputation for candor, whether it's before this committee or the fisa court. additionally the fbi welcomes the oversight by the fisa court. we welcome the oversight by this and our other oversight committees, the inspector general and the doj and odni. it's critical to ensure we have other eyes enclueing compliaeye. the first issue involved evidence of a crime query that the court focused on and there was an issue with respect to reporting that particular matter in a timely fashion. we had a situation where a national security analyst was
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conducting a query against 702 collection. during the course of that query, identified potential evidence of a crime involving child abuse. in following up, trying to determine if there was any other information with respect to that incident, conducted a second query searching for evidence of a crime. no additional information was found by that analyst. ultimately that information was passed to the appropriate authorities to ensure the victim child was protected in that case. moving forward we are going to ensure compliance with the politicia policies already in place so when we identified issues like this, we will ensure our national security agents and analysts are educated with respect to those pitfalls and educated with respect to the
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reporting requirements as well. >> i wanted to talk to you about the about issue in intelligence. i have my intelligence staff here today. we've been trying to look for an amendment. let me see if i understand the issue correctly. apparently earlier this year the nsa decided to end its practice in gathering about as part of upstream collection in 702. as i understand it, an example of an about is an e-mail that includes the targeted e-mail address in the body of the e-mail even though neither the sender nor the receiver are themselves targeted. that is correct? >> yes, senator feinstein, that's correct. >> thank you. >> it's very important to remember that at least one of
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those recipients is a nonu.s. person that's outside the united states. >> thank you. now the nsa has noted that the intent is to retain the of stream collection that provides the greatest value to national security while reducing the likelihood that nsa will acquire communications of u.s. persons or others not in direct contact with one of the agency's foreign intelligence targets. that's an nsa statement about upstream activities. comment on that approach. would the nsa work with us on trying to work something out that covers this issue properly? i don't know that we can do that legislatively but i'd like your comments. >> yes, ma'am. from nsa's perspective we would be very very nervous about a
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legislative prohibition on abouts collection for a couple of reasons. the reason we terminated it is we do not have today a technical means to make it comfortable that our analysts would be able to comply in all cases of the restriction -- >> interruption, from that, your statement that nsa terminated it for that very reason, do you believe that the only way to handle it is to terminate it overall? >> no, ma'am. the agency has a lot of smart engineers. we think that given enough time we might be able to come up with a technical solution that addresses the court's concern. the other thing we have to weigh is operationally what are we seeing in the operational environment. because this is always a trade-off. what's the foreign intelligence loss -- and there was definitely
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foreign intelligence loss when we made the decision. so if we're able to recover -- >> is that notable foreign intelligence loss? >> it's hard to say what you're not getting, right? but using the example you used at the outset, certainly from a counter terrorism standpoint you'd be very interested to know that two people we didn't know about already have the e-mail of a terrorist who practices really good communications security. that's an interesting fact to us that we would be interested in. that's why we have hesitance about a statutory bar. >> the other thing that i think is important to keep in mind, if nsa were to develop the technology or additional minimization procedures to address this issue, they would have to go back to the fisa court and seek approval.
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>> what do you suggest we do about abouts? nothing? try to work with nsa on an amendment? we'd rather get it right than wrong if everybody could comment because this is going to be a big issue. >> i think our position is we should not do an amendment and reauthorize it as-is. >> and speaking for whom? >> for the dni. plnch >> from the justice department's perspective the fisa court has on numerous occasions found the abouts collection to be lawful. from our perspective this isn't so much a legal issue as it is a technological issue of wheth whether -- >> that's the position of your agency? >> i believe so, senator. >> obviously the more data we
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have that is at our disposal the better we are at finding potential attackers here in the united states. given the position of the fisa court with respect to abouts collection, if there is a technological way to resolve the issue and if we would have a lawful manner with which to conduct our queries against that data set, that would be helpful for us. >> mr. morris? >> nsa opposes a statutory change at this point because that would box us in. >> are you saying you would pose -- >> right. we don't think it would be a good idea at this time. >> thank you. that answers my question. >> mr. morris, i've got numbers here. in 2016 there were 3,914 702 reports contained u.s. person identities. would that number have come from your agency? >> i believe that came from the
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dni transparency report. but yeah that number sounds like it was ours. >> it says that 1,934 of the u.s. persons identified were originally masked but later unmasked in response to specific requests. is it possible for this committee to find out who made those unmasking requests? >> i believe we have a request like that pending. i'd have to take that back. >> if i'm talking to the russian ambassador in the united states and he's been nominated as a target, would my conversations be incidentally collected? >> on those facts, the russian ambassador inside the united states could not be a target of section 702 because he's inside the united states. >> would there be a warrant required? >> yeah you'd have to get a title one order. >> senator, from a legal perspective -- >> how do we follow the russian
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ambassador? >> foreign officials located inside the united states, surveillance of them would have to be conducted pursuant to a traditional probable cause based fisa order. >> okay. so let's assume for a moment that the national security advisor in transition is talking to the russian ambassador and the russian ambassador's outside the united states. can you collect without a warrant? >> foreigners abroad who -- >> well, outside the united states, he's a foreigner. could you collect without a warrant? >> if the foreigner abroad was reasonably expected to -- >> okay. so if he's in the united states you can only collect if you have a traditional warrant, is that correct? >> a fisa court order warrant, yes. >> is it possible to find out if i lindsey graham was incidentally collected talking to a foreign leader abroad? is that possible?
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>> senator, we have to comply with the terms of our minimization procedures which generally restrict us -- >> am i entitled to that information? am i entitled as a united states senator to know whether or not the intelligence community monitors conversation i have with a foreign leader abroad? >> the minimization procedures -- >> am i entitled as a united states senator to know if my conversations with a foreign person overseas was collected and if somebody made a request to unmask me? >> if as a member of congress there is an intelligence report that reports on activities that include you and a foreign minister, by default your identity is going tor mas to be. there is a process known as the
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gates procedures that requires the agency to seek approval from the dni. >> am i entitled to know if that happened to me? >> when there is a gates request congress is notified. >> if nobody's notified me, i assume i wasn't collected upon? >> generally those notifications are going to go to the leadership. >> i'm not asking about the leadership. i'm asking about me. i want to know if i'm overseas -- if i'm talking to the russian ambassador in the united states apparently y'all are listening if you believe the papers. i don't know how you're listening. i don't really mind if you're listening. i do mind if somebody can take that conversation and use it against me politically. is that possible under the current system? >> i completely agree that any political use of intelligence is wrong. >> would you agree with me that whoever leaked the conversation between mr. flynn and the russian ambassador did a lot of
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damage to mr. flynn? >> i think we would all agree that any leak causes immense damage. >> i'm overseas talking to a foreign leader. if they're collecting on that foreign leader, i want to know is it possible for somebody in the administration to get a hold of the conversation and unmask me? is that possible? >> yes. i mean -- >> is it possible for me to know if that happened? >> as mr. brooker explained, if notification that that happened -- >> can i find that out, yes or no? do i have the legal right as a united states senator to find out if my government is monitoring conversation between me and a foreign leader and if anybody had access to that conversation? >> we have worked with the chair and ranking member of the intelligence committees to support member requests for questions on gates.
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>> is it legal or not? does the law allow me to get that information? >> it's my understanding, senator, we have that request from you. >> it was like months ago. am i ever going to get it in my lifetime? if you're not going to give it to me, tell me why. >> i'm not stopping you. i wish my colleagues would appreciate what he's trying to do here and give him a little extra time. >> yes. >> so proceed. >> so what's the deal? >> in other words, i want you to proceed until you get an answer. >> yes, sir. >> if there's anything in this country people are entitled to, it's entitled to at least an answer to their question. >> i'm violently agreeing with you. so if i were you, i'd answer my question because he's mad. so what's the answer here? am i ever going to get to know the basic facts? if i'm going to be monitored overseas, maybe there's a good reason to monitor the person i'm
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talking to. i just want to know what consequence as a senator flows my way. if somebody in my own administration doesn't like me, the other administration outside of my party doesn't like me, should i be worried about that conversation falling in the hands of political people that may one day be used against me? >> as i career intelligence professional, i don't think you should be concerned. >> answer my question then. answer my question. i'm very concerned until i get an answer. >> we have your request. i know we're working on it. >> what is keeping you from answering that question? >> my understanding is your request requests any information about you. we tried to narrow it with your staff. they said anything and everything -- >> i want every news clip. i want to know conversations i may have had with foreign people that were monitored. >> so we specifically asked working with your staff we can narrow it to gates request and
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they said no. we are working with your staff to try to get you an answer as quickly as possible. >> is there a legal reason you can't answer that question? >> okay. thanks. >> are you satisfied? >> not really, but we'll move on. >> i think senator franken. whatever senator feinstein says, go ahead. >> thank you to the panel. this is along the lines of following up on what senator graham was talking about and that is our oversight in a more general term. i know that senator coates testified before the senate intelligence committee recently and he said that section 702 surveillance provides critical foreign intelligence that cannot be obtained throughout other methods.
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i agree that that is true and maybe i'll get to some examples from you about that. but as you can see from senator graham's questions, we still have a lot of reason to want to do oversight on behalf of the public. notably your joint testimony urges congress to reauthorize the fisa without a sunset provision. congress would not have to take up fisa reauthorizations in future years. we could have hearings but we would have no leverage to get changes or to work on things. we wouldn't have the opportunity to discuss what is working and what is not working as we did today. can you provide more context as t to why the administration is requesting that congress reauthorize these fisa authorities without a sunset provision and is that set in
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stone? >> so i'll start. i think we have nearly a decade of fisa 702 experience under our belt now. i think review after review have shown that there have been mistakes but nothing intentional. the statute is built with a significant amount of both congressional and public transparency built into it, that whether or not there is a sunset, this body through sort of public oversight and classified oversight has the ability to do the exact oversight you're talking about. we're required under law to -- i do think there are mechanisms built into the law to allow congress to do the exact oversight whether there is a sunset or not. >> we're dealing with important privacy issues and that balance between security and privacy. i think we have decided over the years with bipartisan support
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that we want to be able to have that leverage to be able to make changes. it's much harder when a law is just in permanently. a lot of our laws have sunset provisions. i still go back to is this set in stone that the administration doesn't want to have a sunset provision in here? >> i think if we were to ask me the question would we like a sunset or no bill at all, we would like a sunset. >> we produce as mr. brooker indicated not just significant fisa court opinions but detailed reports at least twice a year on every compliance incident under the section 702 program. those are then subject to briefings with the judiciary and intelligence staff and/or members as appropriate. from our perspective it's a
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continual oversight process that congress is engaged in. should there be something troubling or alarming, its's always congress's prerogative to act with or without a sunset. >> senator, i think we all agree that there needs to be a balance to strike between protecting the civil liberties of americans and protecting the american public from attacks as well. we have allstated very emphatically the value of this section in terms of helping us protect the american public from attacks, counter terrorism, cyber attacks and so forth. we respect the privacy issues that this committee has raised. just to echo what my colleagues have said, in addition to the congressional oversight, we all have our internal minute investigation procedures that we
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comply with every day. we have our monthly audits. we have the training sessions that are conducted. there are a variety of compliance and oversight measures that are currently in place. and the lack of a sunset provision will not do away with those layers of oversight nor will it do away with the authority of this committee or any of the intelligence committees. >> mr. morris? >> one of the reasons that we're seeking a permanent reauthorization instead of having a sunset provision is, a sunset provision leaves the status of the law somewhat unsettled. so you don't know whether you're a provider that has served with a 702 director. is there something i'm going to have to worry about the next year or after the next sunset provision. we want some sense of continuity. it's not just the government that's implementing this. the provider versus requirements
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they have to consider. it's also important for the intelligence professionals that do the work every day. a permanent reauthorization certainly is a vote of confidence that they're doing the right thing and doing the work well and that the tool they use to produce valuable foreign intelligence is still going to be there come january. so that's another reason. >> i think it's pretty clear -- senator si i have the utmost respect for the people doing this work i have tended to be someone who has sided more on the security side in terms of the necessity and reauthorization and support for the work. but i do think when we have these unsettled issues still -- i don't think everything is settled as you could see from the exchange with senator graham.
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>> immaterial to be clear at the outset. there are good reasons for us to have concerns about the application of this law. the american people have long understood that the power of government can easily be abused. a special committee of the united states senate conclude add few years ago, about 40 years ago that in every presidential administration from fdr all the way through nixon, the administration immediately preceding the work of that special committee. the intelligence gathering agencies of the federal government had been used to encage in political espionage. this is of obvious concern to anyone who works in this city or in government in any way. in addition to that, there is a reason why we have the fourth amendment. there are all kind of implications that extend far beyond the political realm where the rights of the accused need to be protected. we want government to be able to
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do its job to protect us from those outside our country who would harm us. we also want to make sure those same authorities can't be used to harm individuals. it makes it more difficult to be the government but it's also very very necessary. any administration, regardless of which political party is at the head of it, it's important that we not lose touch with the fourth amendment, either the letter or spirit thereof. section 702 of the foreign intelligence surveillance act amendments authorizes the surveillance of certain foreign intelligence activities. that definition includes information that is directly related to things like national security and national defense, things that are directly related for example to a potential terrorist attack. but it also includes information that, quote, is relevant to the
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foreign affairs of the united states, close quote. this latter category is broad, much broader. it is broad enough, i think, to be used to target just about anyone abroad including a political activist, human rights volunteer, business people, students, journalists, doctors, just about anyone traveling abroad. at a hearing before this committee earlier this year the fbi director testified that it would not be problematic for the fbi to limit collection of foreign intelligence information to information that is itself limited much more to the national security universe. let me start by asking mr. every va -- evans and brooker, would this be problematic?
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is there any reason we shouldn't limit the use of section 702 to something that's related to a national security threat? >> thank you, senator. i am familiar with the exchange you had with then director comey during that prior hearing. while i certainly can't speak for what he was thinking with his answer, as i understood his answer i think he was referring to the fbi's use of section 702, which the fbi can only receive section 702 information when it's part of an authorized investigation they're conducting which typically relate to the types of threats that director comey described. as to talking about potentially changing the definition of foreign intelligence information more broadly, i think that's something that would be difficult to do in open session here without having the ability in a classified session to describe for you the specific types of collection that are ongoing now and how any
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potential changes to the definition of foreign intelligence might affect that. >> is section 702 currently used abroad to target people who are themselves not related to national security threats? >> section 702 -- i'll walk through the statute here. section 702 can be used to collect on foreign intelligence information as defined by statute. within that definition, there are certifications executed by the attorney general and the director of national intelligence that describe the specific types of foreign intelligence information appropriate for collection. those specific categories in those are classified so i can't get into them here. as to your point about targeting any innocent foreigner overseas, a foreigner overseas can only be targeted under section 702 if there's a reasonable belief that person is likely to communicate or possession foreign intelligence information as it relates one of the specific
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certifications. that information laying out why that person is reasonably likely to communicate or possess that information has to be documented by the analysis justice and the director of national intelligence to ensure its appropriate and related to the topic of the certification. >> okay. my time is expired. mr. booker didn't have a collapse to answer that. i don't know, mr. chairman, if it's okay for him to -- >> like mr. evans, there is a better discussion for tomorrow where we can go into the type of targets we are after under 702. >> okay. thank you to you and the ranking member for holding today's hearing. this is very hard to debate about how to safeguard national security without trampling americans' fundamental right to privacy. it's been said before, but i
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think it bears repeating, when the american people understand the scope and scale of our surveillance programs and are better able to judge for themselves whether the government is appropriately balancing privacy and public safety. that's why i'm focused on the issue of transparency, most recently back in 2015 when congress debated and passed the usa freedom act. the usa freedom was a bipartisan bill to reform our surveillance programs. and i was proud to join my friend senator dean heller in writing the bill's transparency provisions. when the public lacks even a rough sense of the scope of surveillance, they have no way of knowing if the government is striking the right balance. so we wrote the provisions that now require the government to issue detailed annualed reports about the information by
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surveillance authorities. for certain surveillance programs, they have to say how many times the information was sifted through. and that is important stuff. as the former general counsel for the office of the director of national intelligence said, quote, with secrecy inevitably come both suspicion and the possibility for abuse. so in my view, transparency is critical to gaining the public's trust and garnering against misuse. transparency was critical with respect to the reporting required by usa freedom. and it is critical with respect to the number of americans inadvertently swept up in 702 collections. so i remain disappointed that despite bipartisan demand for this information, we still do not have even an estimate of how many americans have had their
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phone calls or e-mails collected under section 702. members of the senate intelligence committee have asked for an estimate. representative conner has asked for an estimate, but no one has received a satisfying answer. mr. brooker, do you agree with the general counsel bob litt, there would have been less outcry from the snowden leaks if the government had been more transparent about its activities beforehand. do you agree that without some form of transparency, we risk suspicion and also the possibility for abuse? >> i think we all agree that
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transparency is vrp important. the transparency has continued in this administration with the release, for the first time of the targeting seekers, that are used under these procedures. i want to sort of stress, our inability is not for want of trying. and nsa can walk through sort of the herculean efforts they have taken to find a way to do it that is responsive. coming to the conclusion there's not a way to produce a transparent number that is meaningful to the debate. that's not something that is credible. we're happy to get into that tomorrow into more detail. >> i, for example, director coates said it would be
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unfeasible to come up with a number of americans' information collected under 702. is it your contention that there are intelligence agencies that are capable of collecting vast quantity of information. and sifting through all the data for a specific information like the name or phone number. but the agencies are somehow not capable of counting how many americans are swept up in that surveillance. >> that's right. if you look at the e-mail, we know who our targets are. and our target is going to be in that e-mail. we don't know necessarily who our targets are talking to. and you can't tell whether, you know, bad guy @hotmail.com is a u.s. person or not based simply on his e-mail address. we know the targets are foreigners overseas, but we can't identify without significant additional research. >> i'm out of time. but i would just ask if there
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was an estimate and not specific numbers. and it seems to me that we are really already capable of coming up with an estimate in a 2011 opinion by the fisa court that said the nsa previewed a random sample of quote internet transactions to determine how many of the communications were wholly domestic. and i think we can come up with an estimate. thank you, mr. chairman, for your indulgence. >> senator franken asked about wanting to identify the number of americans that -- basically,
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the reason that the intelligence community cannot produce that number is the structure produced by regulation tells this community that it is prohibited from gathering intelligence against domestic targets, like american citizens, without a court order and a showing of probable cause that some crime has been committed. and so it strikes me as not intentionally unfair but unfair in the sense of the design and structure of the intelligence oversight and regulatory framework, to then ask you to produce the names of americans incidentally collected against when the whole law is designed to limit, if not to prohibit, that collection absent a court order. so i know that on the intelligence committee, which i had the privilege of sitting on with senator feinstein, i know senator widen has been an ardent
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advocate of producing a number, but i think if it was possible, which i agree under the circumstances, is not possible to come up with a reliable number, and for the reasons i mentioned, but i think it would also add fuel to the flame of some of the conspiracy theorists who seem to think that our intelligence community is doing things, which it is legally prohibited from doing. and thank goodness for that. and that would be targeting american citizens without observing the formalities of constitutional rights under the fourth amendment. so i think under the circumstances, the political environment, we find ourselves in is how do we preserve the crown jewels of the intelligence community under 702 and reauthorize this importance tool used by the fbi and by our intelligence community. and also reassure the public that the oversight that takes place, whether it is internal at
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the nsa or whether it's congressional oversight at hearings here and in the intelligence committee, or the judicial oversight that takes place before the foreign intelligence surveillance court, how do we reassure the american people that those oversight mechanisms, those checks and balances, are working the way they should in order to protect the civil liberties of american citizens while still empowering the intelligence community to do what you need to do and what we need to do in order to keep our country safe. and so the kinds of questions that senator graham was asking, i think, are, if, in fact, warranted. if the answer is not what i would hope it would be, is that there are some inadvertent or intentional violences of the law and the regulations that would certainly help the undermine confidence to make it much harder for congress to do what i believe we have to do, which is to reauthorize this very important statute. that would include any
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unauthorized unmasking of names under the previous obama administration. we need to -- we need to find out what the facts are there. and we need to, if, in fact, it's not warranted by an investigation and what the facts are, we need to make that clear because that's the kind of thing that i think does undermine public confidence and indeed undermines congressional confidence, which makes it much harder for us to do what we need to do when it comes to reauthorizing this legislation. finally, just let me say, i know it's hard to debate these topics in public because so much of what you do is classified. and necessarily so, and based on a need-to-know, but i would ask mr. gattis and mr. morris, would you add more color and commentary to the success stories, if you can, of how this tool has been so useful in protecting the country.
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>> yes, sir. i would be happy to. i spoke about an example in my opening statement regarding an individual overseas who was part of an isil facilitation network. i can always walk the committee and the american public through something that impacted the americans overseas. this occurred on december 31st of the last year in istanbul, turkey. there was an individual targeting a nightclub there in turkey and was going to conduct a terrorist attack at that particular nightclub. he kids, in fact, conduct that attack as i know now. and he was responsible for the deaths or injuries of 38 people from 147 different countries. one of those individuals was an american who was shot in the hip. in working together with our foreign service partners in turkey, we were able to identify the individual who conducted that attack. and we were able to go up on
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section 702 collection on that particular individual. based on that collection, we were able to identify where that individual was located and pass that information to the appropriate turkish authorities who then apprehended him and took him into custody. so it was instrumental to find an individual who perspetrated n attack in another country. and it helped us find that information and prevent him from acting again based on his planning or ideologist. >> mr. morris, we'll save that for another time since my time is up. but i would encourage you all, and i know that is something that the -- go ahead, mr. morris. >> whenever we declassify one of these operational examexamples, swipe every word to make sure we are not revealing something to
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our targets to evade detection. but i'll use another example that is a bit dated now, but i think it is very important to the program. in 2009 during the summer, we were, in the nsa, had 702 coverage of the terrorists in pakistan. we noticed that the terrorist received an e-mail message from somebody indicating that it looked like they were involved in an imminent attack planning here in the united states. we took that information to the fbi. the fbi subsequently determined that the individual was by the name of -- that alerted us to a real and incredible threat against the new york city subway. part of the reason -- it's a
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dated example is because we feel now that we're not going to reve reveal sources and methods to help the ad very air. it's a difficult process, but we appreciate the need for exam ps billions like this so the american people understand how we are using the authority. >> senator durbin. >> thank you, mr. chairman. >> i think we need to reflect on history. after the 9/11 terror attack, the bush administration secret began spying on american citizens in the united states without judicial approval required by the constitution and without the authorization from congress. years later this committee heard dramatic testimony from former deputy attorney jim comey about the efforts of white house chief of staff andrew card and the white house council alberto gonzalez to pressure the attorney general john ashcroft to crafting this surveillance
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after he was hospitalized. after he revealed the warrantless administration programs, they demanded that congress pass legislation authorizing the program. this led to the fisa amendments act in 2008. i opposed it. as well as its reauthorization in 2012. it doesn't include checks and balances to protect the constitutional rights of innocent americans. we also sport that the intelligence community needs the tool they need to keep america safe. but they live in a democracy. so mr. morris said in defining 702 in the simplest terms, it is only used to target foreign persons living outside the united states. if that were wrong, we wouldn't be talk about it. i think most of us wouldn't agree. keep america safe.
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someone outside the united states plans to do us harm, we want to know about it and stop them, period. and then we want to stop them further, perhaps by arrest or even more. but we also know that caught up in the information collected of those so-called foreign sources, is information about americans. did you hear the exchange with senator lindsey graham? did you note the emotion in his voice? as he thought about the possibility that his privacy was being invaded by his government? that someone might use that information through 702 against him as a united states senator? you just witnessed something which is rare in the united states senate. this chairman said, we are all concerned about that because it is our privacy that senator graham has raised. but what about the privacy of the americans who are not in this room? well, now we run into another problem. senator franken asked you the most basic information, how many
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americans have been kept up in the 702? you can't tell us. you can't identify how many americans have been innocently swept up into this effort and can't ask it or answer senator graham's most basic question. so, mr. booker, how are we supposed to have confidence that you're being careful not to involve more people than necessary to keep america safe, not to avoid the constitutional requirement of a warrant if you want to know something about durbin or graham or franken or someone else? >> it's a hard question, senator. i think, like you, everyone at this table is concerned about our privacy and the privacy of our families, my folks in arizona, my in-laws in alabama. something we think about day in and day out and take very seriously. i think that is why the oversight of this committee, the oversight done by the fisa court and the department of justice,
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is to critical to this process. i think while we are unable to provide an absolute metrics on the number of u.s. americans incidentally acquired, we report a lot of information to this committee in classified form and a lot of information publicly relating to the number of u.s. persons unmasked. >> senator graham couldn't get the basic information about it himself. i have been with him on trips overseas and all of us, we are in conversation with foreign leaders on a regular basis, the notion that our government has captured that conversation is something we aught to know about. if you tried to do it in the united states, you would need a warrant. if you did it when we were oversea, apparently not. and he's asked a basic question which for months has gone unanswered in this process. so i guess it comes down to the very basics here. we have seen over time since the creation of these fisa act amendments a broadening of the power of the united states, the lifting of the requirement for warrants from the fisa courts.
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we have given you more and more and more authority. all we're asking is how carefully are you using it? how closely are you following the con city tistitution as you? what are you doing to protect the innocent americans caught up in the communication or whose name is mention in the communication and you tell us, hard question, we'll get back to you later. it is a hard question, but it is really fundamental. and i think it really raises questions about what they need to do to uphold the constitution and still keep us safe. thank you, mr. chairman. >> to follow-up on the point that senator durbin is making, each one of your agencies has internal administrative procedures that allow the agency to police the use and misuse of
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702 information. we on the judiciary committee do not have a statement of what your safeguards are. i would ask you as a question for the record to get your heads together and create a document that explains for us all the different ways in which you through inspectors general, procedures, police, the use and abuse of 702 information. i think part of what we're seeing here in terms of the frustration is we don't have a clear exposition of that. and you aught to be able to give it to us. that's pretty straight-forward stuff. so with the chairman's permission, i'm going to ask that as a question for the record. second, there are concerns about the unmasking of individuals who
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turn up as a co-conspirator, not a real name, but subject a or whatever in the intelligence. there's a specific allegation that has been floating around that the conversations between michael flynn and ambassador kislyak came in to the white house with flynn masked. and that a decision was made in the obama white house to unmask him, which then led to leaks to the newspaper and so forth. an unmasking request for a political motive that leads to a leak is not a good thing. but it's important to us to get the facts of that right. so tomorrow when we're in classified setting, i want to give you a preview of coming attractions. i would like you to be able to answer the question of whether or not that state of fact actually transpired.
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what happened? did the name come unmasked or masked? was it masked or unmasked as the result of a request out of the white house and do you have information about the leak? you don't have to ask that now, but a lot of stuff you tell us isn't classified but we hear it in a classified setting. so we can't talk about it. so at least be prepared to answer that. and the last thing i wanted to mention is with respect to this question of how big does the 702 reach or penetrate into americans lives? and a lot of this means, to use senator durbin's phrase, who is swept up in this? as i understand, the process, and correct me if i'm wrong here, you have identified overseas targets who you are allowed to collect under 702.
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correct? >> correct. >> yeah, okay. >> you don't know who you are in touch with until you quiery tha sele selector in your database, correct? >> there are a number of ways we can query. our analysts will reveal all the information -- >> but it takes an act of selection to pull up that review, right? >> yes, correct. >> okay. and then understand you have your target, you have the query that's been asked, however it's asked, that calls up everybody who they have been in touch with, and then once you've called that screen in, you still don't know the nationality or the location of an individual because all you have is electronic met data. and it takes individualized
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research to figure out the location and the identification of the people, is that also correct? >> that is also correct, yes. >> in order to figure out who is so-called swept up in all of this, what you would need to do is to look at your roster of legitimate 702 targets, query every single one of them, for everybody they have been in touch with, which would presumably be a massive undertaking, and then do the address by address individual identification to figure out which ones were americans or on american soil at the time. is that the problem of trying to get through this? >> i think that is right. oftentimes, there's no electronic information to understand, for the other commune communications, who they are. >> and the privacy of individuals, the fact that their e-mail information is sitting in a data place somewhere that no human being has ever looked at, if suddenly we went out and started pulling up that stuff to do this count, that is actually
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looking into their privacy in a different way. there's actually now human idles on that whereas before they were just in an electronic database that may have never turned up to the human eyeball. >> correct. we would have to divert to mr. morris to research outside of what the nsa would normally do to try to figure that out. >> understood. okay. see you tomorrow. >> thank you, mr. chairman. some of these questions that senator durbin was asking, but everybody has asked, you can kind of see the concern in this pan panel. earlier this year the nsa terminated their about collection on a number of come client incidences related to
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that data and discovered the compliance issues and did a broad review of the 702 program. and they decided about this being too great a privacy. when was the last time that the fbi took a comprehensive review about how to obtain searches and uses the 702 data. >> sir, we have measures in place through which we, first of all, we train our national security agents -- >> when was the last time that you did it, like the nsa, when was the last time you did the comprehensive search about how to use it? >> we have regular audits we conduct internally and are overseen by doj who conducts periodic audits as well. >> when was the last one? >> i believe the audits, in one of those instances, is monthly. >> and was that a complete audit of the whole program?
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>> it was not. it was an audit of a segment of the program. >> when was the last time you had an audit of the whole program? >> i would have to get back to you, senator. >> can you get back to me today? >> we can try to do that. >> it would be helpful before the meeting tomorrow. as mr. brooker and mr. morris referred that the intelligence community opposes the statutory restrictions on the privacy issue, i ask you both, is the nsa currently working to fix this technical issue? or does congress have an indefinite license to engage in this collection in the future? >> senator, we are always
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looking at ways to improve the technical controls that we have in place. we do not have at present a plan to try to reinstitute about, but the problem is we try to explain that earlier, if the operational environment changes, our targets start acting differently, we may determine that we need to come back up and have a statutory restriction would make that very difficult to do, whereas if we were able to come up with a technical fix that is satisfactory to the court, then being able to come back up would just be a matter of making sure we get court permission. >> when do you think you would have a technical fix? >> i can't hazard a guess. i would have to get back to you, sir. >> thank you. did you want to add anything to that, mr. brooker? >> no. >> okay. let me ask a question, mr.
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evans, director coats when he testified, said the compliance ins dense, but those results in the termination of about collection. they are always reported and always corrected. well, not everybody feels that way. in april, the fisa court chasttized them for fulfilling the compliance instance. and this is their words, an institutional lack of candor on a, quote, very serious forth issue. that's kind of tough language from the fisa court. what reforms did the justice department undertake to make sure there is full and immediate disclosure of the government surveillance activities to fisa?
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>> thank you, senator. as to reforms and additional members, mr. morris may want to comment on that. because i know the nsa takes very serious its obligations to comply with the law and the relationship with the court. and i believe that the director of the nsa at that hearing you referenced also made some comments as to additional measures that he was putting in place. i can say from a justice department perspective, as you noted and we noted in our remarks, compliance incidents do happen. they have been inadvertent. and candidly, they are frustrated for us when they happen. and frustrating for the nsa when they happen. and clearly, they were frustrating for the judge. but the two points i would take away from that is the judge clearly indicated in her opinion are that this incident was actually self-identified and self-reported by the government to the court, much to our detriment. >> if you find one like that, do
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you immediately report it to the court? >> yes. some of the timing on these issues are complex matters. and sometimes it takes the agency a little bit of time to wrap your head around, is there a problem and how to describe that to the court. we and the agencies look to do all that as fast as possible. we also want to get it right and be accurate about how we do it. >> and if may, senator, if i may just expand on mr. evans' answer slightly. in the particular query incident that led to the courts comment about the institutional lack of candor, the timing was exactly as he described, that was the primary issue for us. we initially reported the problem, i believe it was in 2015, and a report was filed with the court. but the problem was that we continued to do additional investiga investigative work.
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they determined what is the scope of the problem. and the full scope and scale of the query problem didn't come evident until about two-and-a-half weeks after the court had held a hearing in october about the renewal of the certification. so when we went back to the court to say, our ig just finished the study, it's a bigger problem. the court naturally was unhappy because this was new information being presented with just before it had to go along the certifications. and i certainly appreciate what the courts -- >> the court did not disguise their unhappiness. >> agreed. >> okay. i have one, if i may, mr. chairman. >> okay, and then i will call on senator feinstein. >> thank you. unlike the nsa and the cia, the fbi search for u.s. person and communications obtained from section 702 for evidence of
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conventional crimes totally unrelated to foreign intelligence or national security. they can do that without a warrant. this raises some questions here. would you -- can you use that to go after things like drug offenses or tax fraud or anything of that nature? >> senator, if i could address that from a legal perspective first and then mr. ghattas may have comments from the operational they aperspective. just to the point of what you're talking about from the legal perspective, although the collection we're doing is directed against foreigners abroad and must be for a foreign intelligence purpose, congress recognized with section 702 just as with traditional fisa that the national security surveillance might reveal a
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criminal offense. and that is why the statute for itself for traditional fisa and section 702 requires there be minimalization procedures that provide for the retention and dissemination of evidence for a crime for law enforcement purposes when we happen to come across it. and as judge hogan conclude in the now declassified fisk opinion, because the statute requires us to obtain evidence of a crime, it would be perverse if we weren't allow to look at the queries and look for the information we have to see if we have evidence of a crime. so that is with respect with doing the queries themselves, with respect to the use of the information, if we are going to be using any information obtained or derived from either section 702 or fisa in a criminal case against a commu communicant, that person would be allowed to notice in a criminal case be.
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uh but back in 2015, we said we will not as a matter of policy use communications to, from or about an american as evidence in a criminal proceeding unrelated to either national security or a significant list of enumerated crimes. so a routine minor offense we have committed we will not use that in a criminal case. >> i appreciate that. thank you. >> one chemical weapon and then we'll call the second panel. >> this question is for mr. ghattas. mr. ghattas, your answer can be brief. the former fbi director james comey testified before the senate intelligence committee on june 8th about one-on- one conversations he had with president trump. two of these discussions took place in person. one during a private dinner at
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the white house on january 27th. and the following a briefing in the oval office on february 14th. the president also called him on the phone including calls on march 30 and april 11. director comey said that he discussed some of these conversations with his fbi leadership team without getting into what was said, were you involved in any discussions about president trump's interactions with director comey? yes or no would be sufficient. >> yes, senator. >> i don't want to get into detail now, but the committee may want to talk more with you about this. will you commit to getting us the information that we need? >> we'll work with the committee, senator. >> thank you very much, mr. ghattas. thank you, mr. chairman. >> thanks to all of you. we will probably be using you for resources in the months ahead as we -- second panel,
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please come over. did i cut somebody off? okay. second panel then?
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matthew olson -- first of all, welcome, to all four of you. matthew olson is co-founder of cyber security. previously serving as the director of national counter terrorism. senator for a brief national security council and reported to president obama on counter terrorism activities. mr. olsen also served general counsel, nsa, focusing on
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surveillance, law and cyber security. under the bush administration, mr. olsen served as acting assistant attorney general, national security division, doj, mr. olsen also served as executive director of guantanamo task force, special counsel and director of the fbi and served as federal prosecutor for more than a decade. he's a graduate of the university of virginia and harvard law school. adam klein is robert m. gates senior fellow for new american security, widely published in areas of national security, surveillance, counter terrorism law and policy. he was previously an attorney at international law firm and also worked on national security policy at ram corporation and the 9/11 public discourse project, the nonprofit successor to the 9/11 commission.
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mr. klein served as the law clerk for justice scalia and is and graduate of northwestern university and columbus -- columbia law school. elizabeth coteen is of the liberty and national security program, the new york school of law, previously miss coteen served as council to russell finecoal, chairwoman of the senate judiciary committee. she also served as an attorney in the federal programs range as a civil division of the department of justice and she graduated from yale law school. elizabeth collins is served her second term as board member of
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the privacy and civil liberties oversight board. previously, she was an attorney and private sector at two international law firms and served as the republican chief council for supreme court nominations for senator judiciary committee. miss collins was also an assistant attorney general and legal policy, the doj, where she provided advice and consult relating to national security and other issues. miss collins is a graduate of the university of chicago and harvard law school. we'll proceed to my left and my right. so mr. olsen, proceed, please. >> thank you very much, chairman grassley. it's an honor to be here this morning. let me put the bottom line up front as the former national security adviser, i can attest to the fact that section 702 has significantly contributed to our ability to prevent terrorist attacks in the united states and around the world. this is consistent with the testimony that you have heard
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from the panelists, the witnesses in the other panel. similarly, the former general counsel of the nsa and a former department of justice official, we worked to make sure we implemented 702 to protect the privacy and civil liberties of americans. ly make a few brief remarks and i will focus those remarks on three points all addressing how section 702 has worked in practice. first, the operational value of 702. as this committee is well aware, we face a persistent and adaptive threat from al qaeda and isis and other groups. just since september 14, isis claimed credit for 40 terrorist attacks outside the caliphate in syria and iraq. the online environment for who ten herbal extremists communicating with isis handlers and recruiters is a critical role in providing the direction to the individuals and mobilizing extremists toward violence. so to combat this dynamic threat, our ability to conduct surveillance under 702 has
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proven vital. the key point is this, our best opportunity to identify and stop these attacks before they occur is through good intelligence. that's often derived from the surveillance authorities such as 702. as the director of nct, i rely on a daily basis to information collected in 702. the analysts also said the critical information came from the section 702. in its landmark report, the privacy of the oversight board identified approximately 30 cases where 702 was the initial catalyst that uncovered previously unknown terrorist operatives and plots and more than 100 cases where 702 helped to lead to the arrest of individuals on terrorism-related charges. this is a truly extraordinary record in just the past few years. my second point is oversight. when congress amended fisa in 2008, i was at the department of justice. congress established the unprecedented oversight regime for 702.
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and under this regime, as you have heard now, all three branches of government exercise authority to ensure that the deposit is properly using this authority. the oversight has been strengthened over the past several years to both congressional and executive branch action. this rigorous oversight regime reflects the careful balance that congress struck in 2008. this protects the privacy of civil lib irties. in my experience, the statute has been effective in doing both. the third point i would like to make is to suggest that calls from major reforms are not warranted. one issue that the committee has heard about this morning is the so-called incidental collection issue. a person targeted for surveillance under 702 sends an e-mail and will communicate with someone in the united states. this is incidental collection. some raised concerns about the such collection. i can the el you from my experience from the ability to obtain and use the communications is provening vital to disruption of plots to
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those in the united states. the azazi case is an example of this. i believe congress should restriction the government's ability to acquire and use such information concerning u.s. persons. a second issue involves the ability to search 702 with the u.s. person identifiers such as names and e-mail addresses. i believe these queries are critical to identify critical intelligence that would otherwise be inaccessible. when the operational perspective, when the intelligence analysts seek to identify operatives in connection to suspected terrorists, so if the fbi suspects a person here is moving toward violence, the ability to query 702 information enables the fbi to move quickly to identify the communication that is the government has already lawfully collected to find vital clues. i believe this approach reflects an enduring lesson from the 9/11
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attacks. that is the impairment for the government to effectively and use relevant information it holds in the databases in order to connect the dots. some are now urging congress to impose probable cause requirements on the intelligence abiliticies before they can search section 702 data with the u.s. person identifiers. in my view, this would i understand mine the ability of the agents to move quickly to identify terrorist information. at the early stage of the investigation, it may be impossible to establish probable cause and therefore such data would be beyond their reach. and so, mr. chairman, the authority of congress established under section 702, has played an indispensable role in protecting this nation and allows them to collect private information and protects the civil liberties of americans. thank you. >> thank you, mr. klein. >> senator fieinstein and membes of the committee, thank you for
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allow meing me to testify today. we concluded that section 702 is a valuable intelligence tool that should be reauthorized with existing statutory authorities and impact. but we also proposed enhancements to oversight, transparency and privacy. the public should know that section 702 is already subject for rigorous multilateral oversight from all three branches of government. few government programs receive such close scrutiny. that said, it's always worth considering what more to do to protect privacy and strengthen public trust and programs. this is not just a privacy issue, it is important for national security. programs that lack public support will not be politically sustainable in the long-term. the challenge is to do this without diminishing section 702's effectiveness as an intelligence tool. broadly speaking, there are three areas of opportunity. the first is institutions that oversee 702, including the fisa court and the oversight board. the second is greater transparency, so about how 702
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affects americans, how agencies query the 702 information and how the government uses the 702 information in the criminal justice system. the third area is to strengthen accountability for those who receive signals intelligence reporting to ensure that classified material is handled responsibly and never used for inappropriate purposes. including political purposes. i would also like to mention one thing i hope this process will avoid. one of the 9/11 commissions key messages was the intelligence agencies need to be able to connect the dots between various pieces of information they have collected. i worked for tom cane and lee hamilton in 2004 during the process that led to the creation of the dni and the nct. and know that members of the congress committee moved heaven and earth to breakdown information of the stove pipes in the ioc. with the grave terrorist threat still con up fronting us and the allies, it would be hard to reverse course on that progress now. we should not create these
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agencies from stopping the terrorist attacks. i'm happy to avoid these during the q&a. i look forward to your questions. >> thank you very much. >> chairman grassley, chairman feinstein and thank you for this opportunity to testify. congress' goal when it massed the fisa act in 2008 was to give the government more powerful tools against government threats. the government used this authority to monitor suspected terrorists overseas, to trace their network and interrupt their plots. that's exactly as it should be. we are here today because of the other things that section 702 has been interpreted to allow. the government is not simply monitoring foreign terrorists or powers. instead, it is scanning the content of almost all of the international communications that float into and out of the united states and acquiring hundreds of communications each year including a large though still unknown number of
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americans communications. in addition, despite being required to minimize the retention and use of americans data, the government keeps the data for years and routinely searches it for information to use against americans in ordinary criminal cases. indeed, current roles allow the fbi to read americans e-mails and listen to the phone calls without any factual predicate to suggest wrongdoing, let alone a warrant. i don't believe this is what congress had in mind when it passed section 702. but in writing the law, congress entrusted the executive branch and the fisa court with significant discretion. for instance, congress allowed the targeting of any foreigner overseas, trusting the government to focus its efforts on those who pose a threat to our interest. congress also left it to be the executive branch and the fisa court to fashion specific m minimization rules.
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we have seen no evidence of intentional misuse, but what we have seen is this has warranted access to americans data and a tool for ordinary domestic law enforcement. this outcome is contrary not only to fisa's original intent, but to americans expectations and their trust for their religious freedoms. there are several things that congress could enact and shore up this while preserving the core of section 702. the government's ability to collect the communications of suspected terrorists and others who would harm without a warrant event when the communication transit through or are stored inside the united states. i'll touch on three of the key reforms here. first, congress should narrow the scope of surveillance by requiring the government to have a reasonable belief that the target is someone worth targeting, such as a foreign power or suspected terrorist.
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this would be an internal determination that would show no probable cause with fisa court approval. this reform would offer critical protection, not just to law-abized foreigners but to americans. when the government can target anyone overseas, that allows a massive collection of innocent conversations between americans and their friends, relatives and associates abroad. those communications then sit in huge databases where they are vulnerable to data theft, hacking, negligent mishandling and abuse. this reform is also vital for the tech industry. the government's ability to target anyone overseas is one reason they validated this between the u.s. and european countries. that's why 30 major u.s. tech companies including google, microsoft and facebook, signed a letter urging congress to limit the scope of section 702 surveillance along with other reforms. second, congress should require
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the government to obtain and warrant before searching section 702 data for americans' communications. contrary to what mr. evans said earlier, restrictions on searches of lawfully acquired digital information are the constitutional norm. even when the government has a warrant to seize and search digital data in a criminal case, kit not run am different search of that data for other reasons without obtaining a warrant. this is based on a promise that it only targets foreigners. third, congress should end the data collection. this practice has no basis in the statute or legislative history. it's a small part of upstream collection which is igtstself a smart part of 702 surveillancsu. this is clearly a case where the risks outweigh the benefits. these basic changes would better
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align the statute with the goals it is meant to serve. i'll stop there and look forward to taking your questions. >> thank you for the opportunity to testify today. from 2013 to 2014, our five-member bipartisan board conducted an extensive examination of the 702 program. in july '14 we concluded a report to show the 702 program is valuable, statutorily authorized and at its core constitutional.
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wi we set forth the legislative procedure to govern the program and the extensive oversight structure that accompanies the program. we also unanimously voted out ten policy-based recommendations. each of which has been implemented or is in the process of being implemented and none of which required legislation. my oral and written testimony draw heavily from the board's report, which continues to be a valuable resource for understanding and assessing the program. the board conducted both a legal and policy analysis of the section 702 program. we unanimously concluded that the program has a limited scope. it does not authorize or result in bulk collection. instead, it authorizes the government only to engage in targeted collection of telephone and internet communications of non-u.s. persons located abroad who are likely to communicate
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information about court-approved foreign intelligence topics with the compelled assistance of providers. although u.s. persons may not be and are not targeted, u.s. person information may be incidentally collected. in that aspect of the program was a core focus of our attention leading to key recommendations on minimization procedures. we also weighed the privacy implications of using u.s. person identifiers to query 702 data. the queries are consistent with years of direction to the intelligence community to connect the dots but also through raising significant privacy implications. we made recommendations designed to address those implications. the board also focused on the judicially approved minimization procedures governing the program.
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we noted the special protections afforded to u.s. persons and made recommendations designed to tighten certain aspects of the procedures. finally, we considered the labored oversight that accompanies the 702 program. oversight occurs in all three branches of government and can only be described as rigorous. although we identified no instances of deliberate abuse, there is always the possibility of human or technological error, as would any complex program and robust oversight is essential. we concluded that the program is statutorily authorized and the program is constitutional. although certain features of the program push it close to the limits of fourth amendment reasonableness. specifically, we raised and addressed concerns about incident
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incidentalcollection and the use of u.s. identifiers as board terms. the board spent significant time understanding the value of section 702. it has helped the united states learn more about the membership, leadership structure, priorities, tactics and plans of international terrorist organizations. it has enabled the discovery of previously unknown terrorist operatives as well as the locations and movements of suspects already known to the government. it has led to the discovery of previously unknown terrorist plats directed against the united states and foreign countries enabling the disruption of the plots. overall, we came to appreciate the flexibility that section 702 affords the executive branch while still within the framework of judicial approval and oversight. the board's report and recommendations are consistent with what has been called a clean reauthorization of section 702. we made serious recommendations, each of which we thought
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necessary to enhance privacy and civil liberties protections but none of which required legislation. each of these recommendations has been or is being implemented. i personally view section 702 as a valuable tool in the fight against terrorism and believe the current framework for section 702 provides the necessary protections to ensure that our american values are not compromised. i look forward to answering your questions. >> let me start with a question for all of you when to some extent, each of you or maybe i shouldn't say each of you, but some of you touched on this. you heard me mention earlier some suggesting that the government should have to get judicial approval or even a warrant before serving lawfully collecting 702 information using u.s. person information. y'all come from different perspectives and you also have different backgrounds.
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i would like each of you to answer the question, is there any legal or constitutional reason why we should require judicial or constitutional reason why we should require judicial approval of a warrant before collection can be searched using u.s. persons information? >> thank you. mr. chairman, first on the question of legalrequirement, i think the answer is no. judge hogan of the fisa court addressed this issue head on. the question of whether or not to require a warrant for searching section 702 and determine that it was consistent both with the fisa statute as well as the fourth amendment to permit the fbi to conduct such searches without going to a court in the first instance to obtain a warrant or for any other judicial approval. i would add that i think it's operationally extremely unwise to impose such a requirement. as a hypothetical example, the
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zazy case. zazy was the individual in colorado who was in touch with an al qaeda courier in pakistan. the hypothetical i would pose is imagine if the information about zazy came from a tip. somebody said to the fbi this person zazy is in the midst of plotting to carry out an attack on the u.s. subway. that would not constitute probable cause in all likelihood and the fbi would, therefore, be barred from checking its own databases to see if a communication existed between zazy and this al qaeda courier in pakistan. that's the first thing that we want the fbi to do when they receive that information. it's an unintrusive or relatively unintrusive step and it allows the fbi then to determine what else they need to do and i would suggest imposing a judicial requirement would bar that information from the fbi being able to access it. >> mr. klein. >> this is certainly not a trivial privacy question. that said, i agree entirely with
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mr. olson's analysis of that. one point i would like to add, we now have information in the public domain about the scale of this problem. how much foreign intelligence information is coming through this channel into the criminal justice process. and we know from the most recent ic statistical transparency report that there was only one case in 2016 where an fbi agent actually pulled up 702 information in a u.s. person query in an ordinary criminal case. given that the scale of this is very limited, i think it would be a significant overcorrection with major consequences for national security potentially if we were to impoelse a court ord requirement. it is not a trivial privacy question. we can have more transparency about why these queries are necessary. we could have more information about precisely how often the bureau does them. we've proposed a possible slight narrowing of these queries in some cases in my written testimony but by and large, i think the current practices need
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to continue. >> we're talking about this information. the way the government got this information without requiring a warrant in the first instance, even though it knows it will be pulling in american's communications incidentally is by also proing the fisa court, by certifying its only interest is in the foreign targets. it has no intention, no interest in any particular known americans. if, instead, went to the fisa court and said there are particular known americans whose communications, we are hoping to read as a result of this collection, then the government would have to get a warrant. so to me warrantless back door searches are a violation of the spirit, if not the letter, of the reverse targeting prohibition. i will also say as a constitutional matter this is only quite recently been looked at by any courts outside of the fisa court, but the notion that once data is seized, the fourth
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amendment is done and the fourth amendment doesn't apply to any leader searches is certainly not correct. you can tell by analogies to criminal cases in which data may be seized under a warrant but if the government wants to conduct a separate search later for different reasons it actually does have to go get another warrant, even though it's already collected data and it's sitting lawfully in the government databases and i can provide that law. >> i do not believe prior judicial review for a u.s. person query is constitutionally required or advisable as a policy matter. we spent a tremendous amount of time on the issue of u.s. person queries. and we made a number of recommendations designed to enhance privacy protections. these recommendations, which have been implemented, impacted the nsa, the cia and the fbi. but after extensive discussion and consideration, the majority of the board declined even in
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the most difficult case which is the instance of a query by an fbi agent in an ordinary case to recommend a warrant requirement. we were concerned that such a requirement would raise the threat of rebuilding the so-called wall between intelligence and criminal investigations. and that criminal investigators needed to be aware of potentially relevant 702 information. we did, however, recommend additional restrictions on the use and dissemination of any such queried information. >> senator blumenthal, should i call on senator lee while you're getting really or are you ready? >> okay, go ahead. >> first of all, regarding the fisa court and the mitchy missy
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brief, the role that they play, i have long been concerned about ensuring that the fisa court, which authorizes and oversees government foreign surveillance activities under section 702 as you know and other authorities, has sufficient information about the civil liberties and privacy implications of the decisions that it makes. in 2013, i proposed legislation to establish a special advocate to assist the court in that task. and i think it's fundamental that the fisa court hears different perspectives and the weighty statue to yy statute cos area. the usa freedom act which created an institutional freedom process for participation of amicus curi to provide the fisa
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court with information about civil liberties and privacy concerns when the court is presented with novel or significant questions of law. the court has -- i understand appointed five amisi to fill this purpose. so my question is do you think they have played a helpful role, how could this process be improved, and what do you think are the next steps for fisa court reforms in regard to bringing these different perspectives to bear? and that's for the whole panel. >> thank you, senator. this is something i've written about. i agree with you entirely that the amicus development is a good thing. i work in the space so i read the fisa court opinions. i read the u.s. courts transparency reports. i know rigorous oversight. if you talk to ordinary people,
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they're skeptical. there are two reasons. because it's in secret and that really can't change by and large, although the declassified opinions are a good thing. the other reason is because in most cases only the government gets to argue. and people are used to a court where both sides get to argue. the usa freedom act adding amicus is a good thing. as we know, it's in the court's discretion. so given the significance of the annual 702 resort ification proed seeing, one thing i've proposed i think would help strengthen the public confidence, that that is rigorous oversight. to require the court to appoint an amicus. which is problematic oversight. this is a way to build trust in 702 that people know it's getting rigorous scrutiny. it wouldn't affect the government's implication of the program which we're all concerned about one bit. >> thank you. senator bloomen all this, i want to thank you for your leadership on that specifically. i think it was an extremely important contribution of the usa freedom act.
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i think it's clear from the act that congress intended for the fisa court to make use of any case in which there was a novel or significant legal issue unless there was some extraordinary circumstances. for the most part, the court has done that. there were a couple of occasions in which the court has found participation inappropriate based on the rationale the court didn't need help. i don't think that's consistent with what was intended. but that's been rare. that's something i think this committee should keep an eye on. i do think it makes sense to have participation in the annual certification process. be mandatory. and the one other thing i would suggest is there's currently no provision for amici to appeal rulings of the fisa court if the amici arguments were rejected. and sometimes that's important. i think we saw in the fisa court's decision on back door searches, there were a number of, to say the least, very novel legal issues there that would
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have benefited from review. i think congress would usefully provide a provision requiring automatic supervision to fisa court review in significant cases where the amici's arguments are rejected. >> thank you. the privacy and civil liberty's oversight board spend a significant amount of time looking at the workings of the fisk and we addressed the surveillance court both in our 702 report, which is the subject of today's hearing, and our section 215 report. we made a series of recommendations which were designed primarily to enhance public confidence in the workings of the fisk and the oversight that body provides. we supported the concept of a special advocate. it was one of our recommendations. we did ultimately leave it to the discretion of the article 3 judges who sit on that court. but to the point, we did also
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recommend consideration of a mechanism for appeal. although not as of right. >> as you know, my initial proposal was for a special advocate and that it be, in fact, at the advocate's discretion whether to be engaged not at the court's discretion. so i would welcome thoughts as to how to improve the present process. did you have any comments, mr. olson? >> no, that's all right. i would simply add, somebody who has appeared many times before the fisa court on behalf of the government, that the characterization of the court as a rubber stamp or insufficiently cognizant of the array of issues before it i think has been unfair. that said, i agree with the benefits from a public legitimacy standpoint of including the opportunity for these judges to appoint amici in appropriate cases. largely agree with my colleagues here, how that's worked out over the past couple of years.
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>> we all know the best judges who are not rubber stamps welcome the advocacy on both sides of an issue. enables them to make better decisions. their worst nightmare, in fact, is a defendant who is unrepresented order representing himself in many respects. >> i agree. >> that's the way the system works. that's the spirit that led me to make this proposal. thank you all, very, very much. thank you, mr. chairman. >> senator lee. >> thank you very much. >> when senator lee's done, i'll just have one question and then i think we'll be done. >> like to start with you. why is it concerning if agents decide not to use information that they obtained when doing a back door search? >> in other words -- >> i'm sorry? >> what kinds of concerns does it raise when you've got somebody doing a back door
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search, whether they use it or not? >> i see your point. the point is the search itself is a violation of american's privacy. heart of the fourth amendment is the government has to have a warrant before entreating on american's reasonable expectation of privacy and whether or not they find something as a result of that does not affect the privacy intrusion. it has other effects potentially. but, you know, if the government enters your house without a warrant, and doesn't find anything, there's no argument there that somehow your privacy wasn't invaded because the search was fruitless. so i think we have to understand the nature of the privacy intrusion when the government is allowed to search american's communications without a warrant. >> okay. what kinds of things can information be used for? what kinds of investigations could incorporate information obtaineded through a back door search? >> well, we don't know exactly for a couple of reasons. one reason is because the list
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of crimes unrelated to national security, that the department of justice is authorized to use section 702 data when prosecuting, that list is not public. all we know is it's serious crimes. we don't know which crimes those are. and despite repeated requests, that information has not been made public. the other reason we don't know is because the government has had spotty complaints at best with the statutory requirement that it notify criminal defendants when using evidence obtained or derived from section 702. the government's interpretation of derived from appears to be quite generous, perhaps creative. but once again the department has refused to make that interpretation public. it's fighting requests for that interpretation tooth and nail. what we do know is there were no notifications given at all until 2013 and then when the government was essentially caught telling the supreme court that it notified defendants when it doesn't, it changed its
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practices. since then, i think there have been eight cases innotification. despite the fact the fbi routi e routinely searches section 702 data in certainly national security cases, and there have been hundreds of national security prosecutions during this time. so we have an information deficit here. >> in fact, we don't really know, we don't have any idea how often this occurs. you know, the organization recently signed a letter to the director of national intelligence expressing dismay as to why he was choosing not to provide an estimate as to the number of americans who were subject to these. >> yes, and if i could, i would like very much to speak to the notion that this is somehow infeasible or at least not without drastically violating american's privacy. there are three kinds of collection under 702. the first is collection of telephone calls. it is a simple matter to assess, to estimate, whether someone on
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one end of the call is an american and that's by looking at the country code. it's not perfect. but we're not looking for perfection. we're not looking for an exact count. we're looking for an estimate. it is certainly sufficient for that purpose and involves no privacy intrusion. the second kind of collection is upstream internet collection. when the government conducts this kind of collection, it must first run a filter to try to filter out wholly domestic communications. it doesn't do this by doing a lot of research that invades american's privacy. it does this using ip addresses and some comparable technical. it manages to filter out enough. with this method of determining the american versus foreign status of a commune can't is sufficient for purposes of complying with the constitution, i think it should be sufficient for purposes of giving americans a rough sense of how many of
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their communications, are collected. >> sure. >> the third program is where there are more complicated issues. even for that program, the privacy community is unanimous is saying that conducting a one-time limited sampling under careful conditions would be a net privacy gain. >> mr. chairman, i'd like to submit that letter that i referenced a moment ago for the record. as the letter notes, senator widen has been requesting this information since 2011. the house judiciary committee and privacy groups have been requesting that information now for nearly two years. and members of the house of representatives were promised, i believe, by director clapper and director coates that the estimate would be forthcoming. so we have yet to receive that information. sounds like you certainly share my concern with the fact that
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notwithstanding those assurances and notwithstanding the public interest in this, there's no information yet. >> there's no information. but there was a lot of progress. under the previous administration, there were several meetings that the intelligence community had with house members, with members of civil society. they discussed methodologies. they were considering there was a tremendous amount of progress on this. and the letters from the members of the house judiciary committee confirmed their understanding that the administration had committed to providing that number in early 2017. hopefully by january, and, in fact, all accounts, public and prive, suggest they were on the vurj of launching that count towards it is end of last year. we had a change of administration and the government has now backed off of its commitment to provide that information. >> thank you very much. thank you, mr. chairman. >> senator, i just have one question, it will be for miss
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collins. i believe that transparency and government leads to increased accountability. i suppose all of you believe that too. one of your board's recommendations was to provide additional transparency surrounding how often nsa obtains and uses incidentally collected communication of our citizens. i also understand that in february 2016, the board described the recommendations as being implemented. so this is the question. the board's last report on this was about a year and a half ago. so can you walk us through the specifics of the five things the board recommended in this area and provide us an update regarding the status of implementation by the executive branch? >> when we did our report on section 702, we spent a lot of time on the issue of incidental u.s. person collection because it has both policy and constitutional implications.
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and we ultimately did identify five measures designed to provide insight into incidental collection. and these are collectively reflected in recommendation nine of our report. it has been partially implemented. without getting into too many details, i can address this in further detail tomorrow in the classified briefing. to the point, the recommendation aspects that involve telephone data are easier to implement. it's just more feasible. i am sympathetic to the arguments of the dni and the nsa, that there are operational hurdles. there are technological hurdles to providing some of the information that has been requested. i'm sympathetic that there are certain methodologies that have been suggested that would increase privacy concerns. but i would add my voice to those who urge the dni and the
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nsa to continue to find a way to provide some quaint ification or some estimate of incidental u.s. person collection. >> i want to thank all of you for your participation and thank the audience and all the staff that participated. we'll proceed -- we'll proceed some place online. thank you very much.
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>> if you missed any of this hearing, you can watch it on our website at cspan.org. just type fisa, f-i-s-a, in the search bar. coming up, a look at terrorism threats in europe. starting at 2:00 p.m. on c-span 3. also the u.s. senate gavels in.
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we do expect senators to debate the health care law replacement bill. live gavel to gavel coverage of the u.s. senate is always on our companion network c-span 2. >> recently on c-span williams college student zachary wood at a senate judiciary committee hearing on free speech on college campuses. >> the president of williams college unilaterally canceled the speaker. days later, the president enacted new speaker policies that made bringing speakers to camp campus, an especially arduous process for my student group. what i find impermissible, undemocratic to the intellectual college i attend is the president's decision to disinvite a speaker solely on the basis of his inflammatory remarks about race. >> congresswoman diana degette on the opoid crisis in the u.s.
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>> i was sitting next to the denver public librarian and i said what are the issues you're facing here at the denver public library, and i thought she would say something like, you know, cyber security or access to books. she said, you know, we have people overdosing in the library every day and we need to get our librarians this so they can give it to people who have overdosed at the denver public library. >> senator john mccain at the confirmation hearing of deputy defense secretary nominee patrick shanahan. >> we are now having an executive from one of the five major corporations that has corralled 90% of our defense budgets and on one of the major issues that this committee has had hearings about, has had markups about, has had reported out our bill, and you want to find out more information. not a good beginning. not a good

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