Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  June 5, 2014 2:00pm-3:31pm EDT

2:00 pm
me say this, to the chairman, is this not your quote, when asked whether or not a shutdown plant could be dangerous, this is what you said. the fire could well he spread to older spent fuel. the effects could be worse than chernobyl. do you remember writing that or writing that? >> that's from the 2003 paper? >> yes. >> it was a collaborative effort, that paper. >> did you sign that statement? >> i am one of the authors, that is correct. >> thank you. and is it not true, that the n.r.c. said in 2001, spent fuel fire coos have health effects comparable to a severe reactor accident. does anyone think that's a misstatement by myself? ok. so let's just be clear.
2:01 pm
anyone who says it's not serious because you're shut down, if there's a fire, doesn't know what they're talking about. let's just be clear. let's just be clear. now, senator vitter who , terrupted me several times oesn't know that my operator submitted this many pages of exemption requests. let me tell you what they're asking for. the proposed exemption would allow the operator to activities off-site -- senator markey, would you join me right up here? i know you were presiding. and we appreciate you being ere.
2:02 pm
let me say again, the operator is asking to discontinue off-site activities and reduce the scope of on-site emergency planning. examples of requirements subject to the proposed exemption that are related to discontinuing off-site emergency planning activities clude but are not limited to requirements for off-site agency plans, emergency planning zones, and ingestion pathway zones, the emergency operations facility, evacuation time estimates, off-site time limits, off-site dose projections, protective action recommendations. examples of requirements subject to the proposed exemption that are related to reducing the scope of on-site, onsite emergency planning activities. now, look, they're basically asking to be let off the hook. and if you grant this exemption, and you've never turned one down before and you won't answer my question, none
2:03 pm
of you will, i'm going to show again the picture -- i want senator markey to see this, of how close a fire in california came to that decommissioned plant. now, do any of you know how many hot fuel, spent fuel rods are in that plant? >> i do not have an exact number. i can take that for the record, if you'd like. >> anybody else know how many? just for the record, 2,600. do you know what it was designed for? >> the original design or -- >> yeah. >> or after the reracking had been done? >> yeah. >> if it was the original design and open frame racks, probably about a 1/4 of that amount. >> 1,300. so this doesn't even go into other decommissioned plants. so anyone who says that a
2:04 pm
shutdown plant is not as dangerous has to just read what the chairman herself said, read what the n.r.c. said, the consequences of an event could be significantly worse than those from chernobyl, and i've got to tell you, i represent those people. just like senator vitter represents his people. and worries night and day about their safety from hurricanes and the rest. i worry about my people and i'm not going to stop because i can't get any one of you to commit to me that you will turn down this request, this request for everything that they want to waive. and you've never turned it down before and you won't answer the question. and yes, would you like to answer -- >> senator, if i could, just for clarification, this commission has not received any document or request for commission decisionmaking on this topic. >> then you don't know your work. it's march -- no, i'm sorry. this was sent to you on march
2:05 pm
31. so what happened to your record keeping here? people didn't give you this information? madam chairman, why didn't the commissioner know about this? >> it's sent to the staff. it has not been brought up to the commission. >> how long did the staff sit on it before they let you know about it? >> as i said before, the staff -- we have an established process and the staff does detailed technical analysis. we do not take these decisions lightly. we take them very seriously. >> when are you going to have the staff report, madam chairwoman? >> i do not know but i can get that information for you. >> you do not know. you do not know. let me tell you, you better know because i've got eight million people that live within 50 miles of that site. i had a fire that came within half a mile of that site, and the operator had to evacuate the people inside. and now they don't want to have evacuation plans. this is a no-brainer. i'm sorry. you can sit there and say we
2:06 pm
take it seriously. really? then let me just tell you, this facility sits on an earthquake zone, on a tsunami zone. you know what happens. you, yourself, wrote in a collaboration with other people that an accident here could be worse than chernobyl. so all i'm saying is march 31, i got this. i think it would be nice if the commissioners got this, and as a matter of fact, i'm going to make sure that before this staff goes through it, the commissioners get this. yes, sir. >> senator, thanks for giving me a chance. >> of course. >> i think we've all been aware that our staff has received the document you're referring to. but as the chairman noted, in a staff process, i can tell you that within the last week, with mike johnson, who i think is here, is briefing me on the status of this, and the fact is
2:07 pm
working with discussions with fema on these issues. so i want to assure you this is working through our process and we owe you a response as to when a decision could be expected. >> i will await that response. but i want to say again, to me, there's an urgency. and to you there should be -- this isn't just any power plant. this is a nuclear power plant that has many of these spent fuel rods. ok. in an earthquake zone, a tsunami zone, and a fire came within half a mile. so i hope the staff will work over time, just like my staff does when there's an emergency. because that is what i consider -- yes. >> chairman, i just want to be clear that there -- emergency preparedness will not be eliminated at the site. >> ok. >> i do want to be clear about that. it will not eliminate emergency
2:08 pm
preparedness. >> so now you're agreeing you will not allow them this exemption that they're asking for all of this? >> we will not eliminate emergency preparedness. sometimes it's reduced in scope after we have considered requests. >> thank you. let me ask you that. so you will not waive the requirement for off-site evacuation plans? >> i do not know the details of this request yet. >> and you will not waive their request to be exempted from having warning sirens? >> i do not know the details of this request. they have to prove to us that they can maintain the safe level of operation under decommissioning that they -- >> and you don't know right now if you will eliminate off-site evacuation plans, warning sirens, what about relocation centers? >> we will ensure that the site will be safe and we will ensure. >> you haven't answered me.
2:09 pm
>> we will ensure there ared a kit measure -- adequate measures in place to respond to any emergency. >> fair enough. let me ask you this, do you think off-site evacuation plans are a necessary part of that facility being safe? do you believe personally? you can't answer for anyone else. do you believe that having off-site evacuation plans that are a necessary part of having that facility safe? >> an operating facility, of course, always requires evacuation plans. >> so you will not waive that requirement? >> i will have to consider it as i consider the site specific requirements. >> you have never said no to exemptions of all off-site emergency plans. so that's why i'm drilling down on this because the n.r.c., who cares a lot about safety, that's your job, have never, ever turned down such a plan. so let me just tell you this, i am deeply troubled that
2:10 pm
commissioners haven't seen this , commissioners, maybe they knew about the fire. the fire were with one of you, i certainly would have said what is happening -- this could have been -- i don't even want to say the type of disaster. all i have to do is quote the chairman in her 2003 paper in which she said the fire could well spread to older spent fuels, the long term land contamination consequences of such an event could be significantly worse than those from chernobyl. senator vitter? >> yeah, a couple things on this topic for the record. first of all, i want to restate what i said. the chairman was sort of suggesting that i was saying that a decommissioned site is a run of the mill industrial site, doesn't need concern, doesn't need a lot of careful regulation. as i explicitly said, i don't think that nothing could be
2:11 pm
further from the truth. but clearly, an operating nuclear facility is a pretty different animal than a decommissioned site. and i was simply making the point that under your rules, the only way to account for that are these so-called exemptions. now, you know, maybe people would feel better if we have a different rule book rather than talk about exemptions. but that's semantics, that's not substance. that's my first point. my second point is i find it ironic and confusing that the chair is now disappointed that your staff is actually reading this stack of paper very carefully and taking it very seriously. i mean, if you all are a rubber stamp, as she has been suggesting, for any suggested exemptions, then the staff could whip through it in a week and give it to you and you all would have voted by now. that is not happening, i assume because you and your staff actually take this seriously,
2:12 pm
actually read it line by line and go through a thorough process. i don't think -- it shouldn't drag on forever. we deserve to know what a reasonable timetable is. and commissioner osendorf said you'll get back with us with that but i don't think we should be complaining about a careful, thorough process. i just wanted to make those two points. >> senator, thank you. what i did say was in light of this near disaster, i am very disappointed that the commissioners haven't gotten more involved at this point. senator markey? >> thank you, madam chair. and thank you for calling this very important hearing today. fukushima reminded us of the devastating forget of a nuclear reactor meltdown, radiation of
2:13 pm
the accident was detected over 1,000 miles away, land contamination continues to keep tens of thousands of people from returning to their homes and cleanup cost estimates continue to rise, and industry admitted it will cost well over $100 billion. meanwhile, in the united states, we have packed so much radioactive waste into spent fuel pools that even n.r.c. studies conclude that spent fuel fires could spread as much contamination as a meltdown of a operating reactor. throughout the united states, many pools, including the one at the pilgrim nuclear power plant are dangerously overcrowded. the solution to this is simple, take the waste out of the pools and put it into safer, dry cast storage. that is why i recently introduced the die cast storage
2:14 pm
act which gives plants seven years to remove all the waste that can be removed from the pool and put it into safer dry cast storage, provide funding to help offset the costs, and increases the size of emergency planning zones around plants that choose not to remove the waste from their pools. madam chair, is it true that removing waste from the pool and putting it into dry cast storage reduces the amount of radioactivity that could potentially be released if a spent fuel fire were to occur? >> operating reactors need both pools -- they need -- let me just say operating reactors they ols because when discharge the fuel and it's really hot and need the water circulation to keep it hot.
2:15 pm
you need a spent fuel pool. when the spent fuel is abled, at least five years, right now in the united states, it can be then transferred to a dry cast. nd those dry casts are safe, they're passive systems, the spent fuel pools are active systems and require active circulation of water. >> ok. so didn't the n.r.c. studies show that even at decommissioned reactors it was never possible to rule out the possibility of a spent fuel fire? >> i think there are a variety of studies out there. and i can take that for the record because i myself would ke to see more analysis of a number of these issues. >> are any of you familiar with any n.r.c. studies that show that there could in fact be a fire? are any of you familiar with that at all?
2:16 pm
>> yes, senator. there could be a fire. the question is how likely is it? the n.r.c. studies show it's extremely unlikely. that's what the studies say. > so the commission recently voted to allow plants to continue to overfill these pools for as long as they wish to do so. so each of you is saying it's highly unlikely that there will be a fire and therefore there is no need to move towards dry cast storage, is that correct? s that what you're saying, mr. apostalakis? >> well, there were four main inputs i considered in my vote, the detailed staff analysis which argued that way. the advisor committee on reactor safeguards, independent experts agreed with the staff. the historical record that
2:17 pm
fuel the spent pool withstood earthquakes beyond designed basis. there was a statement by dr. thompson which raised a lot of issues and questions and there was a distinguished member of the advisory committee that rebutted all these issues of today. so all the evidence pointed to the extreme, extremely low likelihood of a fire there. >> let me just read to you from the n.r.c.'s own statements. could , an s.f.p. fire have health effects comparable to those of a severe reactor accident, large seismic events that fail the s.f.p. are the dominant contributor to causing an s.f.p. fire. so where there are earthquake
2:18 pm
zones, you know, southern california is an example, but they're all over the country, how do you deal with that in terms of your own agency's conclusion with regard to the danger of a fire that could become catastrophic? madam chair? >> the commission has voted on this issue and the commission decided that this issue needed no further study. >> and i appreciate that. but again, we just had fukushima. we know that many of the nuclear power plants in our country are built on or near earthquake faults. and we have the commission's actual conclusion here. i understand the industry does not want to spend the money. i understand that the industry doesn't want to have to absorb this kind of a cost. but, again, i'm just dealing
2:19 pm
here with your own agency's conclusion about the danger that exists. > senator, the seismic re-evaluation project will also look at the spent fuel pools again. >> and when is that? >> what is the time line for that? >> it's in progress. >> what's the time line? >> i don't know when they end. >> for the top priority group risk nts, their seismic assessments will be completed by 2017. >> you know, the whole concept of probablistic risk assessment is one that is very long, and obviously goes back to the late 1970's and early 1980's with assessments made even then with
2:20 pm
regard to the probability of an accident and the knee -- the need to build in proper protections. p.r.a. is the long-standing standard. and it just seems to me almost irresponsible that we're going to wait until 2017 to complete that kind of a study knowing the danger that exists the longer the decommissioned plants sit there with these spent fuel rods in place. -- you have implemented any permanent seismic safety measures, and are you planning to do that before 2017? >> yes. what we've done, there's been a seismic hazard reanalysis that we ordered as a result of lessons learned from fukushima. actually, it was already in progress before the fukushima
2:21 pm
accident, but we've moved it up. and what we've done is we're trying to be proactive based on newer data. >> you've done the analysis. have you put anything in place in order to ensure there are safeguards there? >> yes, certainly. certainly. the plants are built with a significant amount of margin. now, the analysis has analyzed the hazard. what we're trying to now understand with the probable istic risk assessles is the ability of the plants to withstand that reanalyzed hazard. >> you haven't put any new standards on a permanent basis in place since fukushima, none. >> this is site specific. >> and that is, to me, still, you know, unforgivable. we know what can happen. we know what the consequences are. we saw what happened in three
2:22 pm
mile island, and the potential consequences of a reactor meltdown years before chernobyl and fukushima. and now experts have given us clear warnings that a spent pool fuel fire could be worse than a reactor meltdown. with that much at stake, i think the commission's vote not to heed these warnings was simply irresponsible. >> senator, can i just clarify a point? in 2012 we ordered -- we requested the plants to do seismic and flooding hazard walkdowns, and so the plant operators had to go through the plants, make sure that all the bolts were tightened, that there weren't hazards presented -- >> i get that. that's a study. >> they completed that. it wasn't a study, they actually walked through the plants and made sure that everything was as they were supposed to be, that they met their licensing basis for their seismic hazards and in some cases, they found small problems, they've corrected
2:23 pm
them or they're in the process of correcting them. >> those are prefukushima standards and you've not promulgated any post fukushima standards thus far. and they are still, in many instances, not in compliance with pre-fukushima. chairman mcfarland, the department of justice recently indicted five members of the chinese military on charges of tapping into u.s. company's systems. according to the indictment, the chinese efforts included the thefts of nuclear reactor trade secrets from westinghouse. these thefts started in may of 2010 and lasted until at least january of 2011. at the very same time that those steps occurred, westinghouse was hosting a job shadow program that placed dozens of chinese personnel at u.s. nuclear reactors for months during the identical time frame in which the alleged thefts occurred.
2:24 pm
this job shadow program was approved by the nuclear regulatory commission. i recently wrote you a letter asking for more information on this program. i look forward to your response. chairman mcfarland, did any of the chinese nationals who were stationed at american nuclear reactors have unescorted access to the facilities? >> senator, this job shadow program was a private sector activity. it was not under the control of the n.r.c. the n.r.c. ensured that its security regulations were followed during this time. and i respectfully ask you to refer all questions, other questions on this topic to the justice department. >> let me ask you this, would n.r.c. rules, regulations allow unescorted chinese nationals to go through private nuclear
2:25 pm
power plants? >> our regulations -- >> would the regulations allow that to occur, the chinese would be unescorted and walking through domestic nuclear power plants? >> i can tell you that our regulations are security regulations were followed. but i do request that you refer -- >> i'm asking, do those regulations allow for chinese nationals to walk through our nuclear power plants unescorted? >> no, nor. they're not allowed to do that. >> they're not allowed to do that? >> no. >> then how could it have happened that they were walking through our power plants, post ally post 9/11 and -- >> senator, we're in the process of responding to your letter. and i do request that you direct your further questions to the department of justice. >> well, and i appreciate that. i'm just trying to get the heart here of what you allow and then what happened.
2:26 pm
and i'm getting a little bit of, i think, a mixed message here. you're saying, mr. apostolakis, they would not be permitted under your regulations? >> that is my understanding, senator, yes. >> ok. so how could they possibly gain access unescorted, chinese nationals, into nuclear power plants, especially post 9/11 with these additional security provisions, many of them think i'm the author of, with regard to access to our nuclear power plants? >> i don't know, senator. >> you do not know. do you know? >> we're in the process of responding to your letter. and again, i ask that you refer all further questions to the department of justice on this topic. >> ok. and i will just say this in conclusion, that the n.r.c. claims to foster a safety conscious work environment where, and i quote, personnel feel free to raise safety concerns without fear of
2:27 pm
retaliation, intimidation, harassment or discrimination. in the past year, my office has heard from an increasing number of whistle blowers from many different offices at n.r.c. these people are all serious, dedicated individuals who are calling my staff because they feel that they are not being heard by their own managers and colleagues. they feel that when they step forward to report safety, security, or other problems, they are systematically retaliated against. i've raised this concern many times with you. i am holding a report written by the n.r.c. but not yet publicly released that actually surveyed those who have attempted to use n.r.c.'s formal processes for resolving policy disagreements. a staggering 75% of those who use them said that they received a poor performance appraisal after they raised their whistle blower concerns. almost 2/3 of them said they were excluded from work
2:28 pm
activities by their management. 25% were passed over for promotions. 25% were even verbally abused by their colleagues and their supervisors. those results are shameful. and i ask that portions of this report be entered into the record and request for your formal written response for what you plan to do to fix these problems. >> without objection, so ordered. >> i thank you and i will just say i began chairing a committee overseeing the nuclear regulatory commission in 1981. i had a hearing on-site at santa ofre in 1983 on site and this just continues, this whole pattern continues at the agency and it is one that it's troubling because especially post fukushima, it's very important for this culture to change and am afraid it has not. >> thank you, senator. senator sessions? >> thank you, madam chairman. i appreciate your -- both of
2:29 pm
you senators' interest in the study of this over the years. i do have a different view. i think the good news is that in our nuclear power industry, unlike our coal, natural gas, oil, and other industry, we've not had a single individual be killed in the entire process of that industry, nor have we had a person, to my knowledge, made sick as a result of nuclear accident. so i say that to date, we've had a pretty good record. i'll ask some different commissioners here, maybe 's issioner osendorf, the standard senator markey introduced a nuclear plant decommissioning act which grants a large royalty to states and communities in the development and decommissioning of nuclear plants.
2:30 pm
based on your experience, would you share with us any thoughts you have as to whether that would make it more likely that a new nuclear plant would be built in america? or less likely? >> senator, thank you for the question. regulatory process is important. think the nation benefits from that from a public health and safety perspective. i could foresee potential problems in that predictability been lessened if there were confusion or the blurring of lines between the role of the federal agency, us, and state. >> i think that is transparent. now we are going to have a the powery extort company for whatever ideas they
2:31 pm
may have and not be in the public interest and result in a much less likelihood, in my view, that we can have a new, safe, clean nuclear power plant built. i really think creating a situation in which states, cities, and counties can impose regulations on the building of a nuclear power plant or the decommissioning of it, in retrospect, is bad policy and i strongly oppose that. i just do not think that is good. >> senator, could i add something? after manyhis agency years in the military and i can tell you the transparency and the openness of the nrc, whereby we engage the entire american public -- last sure we had 1000 public meetings. state, community, anti-nuclear groups -- there is a process in
2:32 pm
which they are able to bring their voices to bear and share their concerns. that is not often enough reflecting upon when these issues come up. >> thank you. with regard to this storage, mr. it isorff, just because storage, it does not mean it will cause a fire and blow up? >> that is correct. studies of the pools at fukushima, today we are not aware of any damage to the pools at fukushima daiichi in terms of structural integrity. the study that we based our decision on head some thatficant conservatism's we could provide for the record and they showed that we were taking almost worst-case analyses to look at the integrity. i would also add the current
2:33 pm
initiatives being taken with respect to the flex program, mitigating programs to add additional pumps, hoses, sources of water, and a spent poll level imitation requirements that we have levied those are steps from energy the standpoint that have not been discussed today. >> thank you. with regard to this process -- >> you can see the last 15 minutes of this hearing at c-span.org. we are going live to capital hearing for hearing on the foreign intelligence surveillance act, pfizer, looking at recent legislation that would change the ability of the national security agency to collect phone records and other data. there is the chairman of the committee, dianne feinstein. >> this is a serious discussion, a serious subject. witnesses deserve to be heard and members deserve to be able questions, select
2:34 pm
the first inkling of a demonstration, we will clear the room and come back when the room is cleared. meet to receive testimony and discuss the legislation passed by the house of representatives on may 22 two reform the foreign intelligence surveillance act. that legislation, which is called the usa freedom act, was approved last month by the two committees of jurisdiction in the house, the house judiciary committee, and the house permitted select committee on intelligence. after amendments on the house floor, the ale was passed by a vote of -- the bill was passed 121, and that303- is about three to one and it sends a large signal to this
2:35 pm
house -- there was a large majority voting for it and votes came from both sides of the aisle. the bill makes major changes to existing intelligence programs conducted under the foreign intelligence surveillance act, .r what we call fisa first, the house bill will and nsa collection of telephone by reference to the business records provision in the usa patriot act. the program has been approved more than 37 times by the fisa court and upheld a further three times by other federal courts. i happen to believe it is lawful and that it has been effective, but i recognize that the situation is such that change is needed. the house bill replaces nsa's acquisition of call records with a process by which the government can obtain a fisa court order that would compel
2:36 pm
telecommunications providers to conduct specific queries of the phone metadata that they first -- possess. the government would be required to show that the information sought is relevant to an authorized investigation and that there is a reasonable, that thele suspicion phone numbers at issue are associated with a foreign power or an agent of a foreign power. the government would obtain only those records related to telephone calls of the individual of interest. practice, current nsa again, authorize repeatedly by the fisa court, this legislation would restrict the queries of phone records to two hop[s -- hops instead of three. the bill priebus the government
2:37 pm
from acquiring the name of the people involved or the content of the communication, and the result of this legislation would be to reduce by a significant extent the amount of information in possession of the government, the vast majority of which would never be seen by nsa personnel. some information of intelligence that will be lost given tell a communication companies may not all retained their records for the five years that nsa does, but by limiting query -- two hopsaller: rather than three. the nsa has told the committee that the value of the information from the third hop and information older than 18 to
2:38 pm
old hass years old -- been limited. provide protection for companies that provide information required under the court order. it would also allow the attorney general to authorize in order in case of an emergency when there is not sufficient time to go to the fisa court. the same limitations and detections are in place here as in other parts of -- protections are in place here as well as other parts of the fisa. the bill prohibits the government from conducting bulk collection. the and rapid trace authority and through the use of security letters. while prohibiting both selections is supported by privacy advocates and private sector companies, the language used in the bill is somewhat controversial.
2:39 pm
this controversy revolves around the requirement that the government focus its collection of information on what is called a specific selection term, meaning that the government may only seek records or other information that is specifically related to its investigation. the problem comes with the definition of a specific selection term, which is not clear on its face, and, i believe, it is confusing. a specific selection term in the bill is defined as follows -- as follows, and i quote "a discrete term, such as a term specifically identifying a person, entity, account, address, or device used by the government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the
2:40 pm
provision of such information or tangible things to the government." i understand the definition has to provide some amount of flexibility in order to give government investigators the ability to gather information needed for a case, especially in the early days of a case without already knowing what there is about the subject. i hope that our witnesses today will provide specific examples, and if you have better alternatives, now would be the time to put them forward. we might, hypothetically, have an intelligence source that tells us that a terrorist is on a specific claim flying -- plane flying to the united states, but we may not know their name. it seems reasonable to me that the fbi might want to find out who was on the flight manifest
2:41 pm
even though all but one or two people will certainly be innocent. there is also concerned that the definition that i just read might be so broad as to allow the fbi to get all flight manifests of an entire airline, for example, and i think we need to look at that. i know that is not the intention of the house authors, and i believe the government witnesses today will tell us that they do not believe the bill would authorize them to conduct drift net surveillance or records collection, but i am interested in trying to find a more clear and more understandable definition, and make clear that it prohibits bulk collection of information under these authorities. finally, let me note that this committee has been looking at the nsa's business records collection for years.
2:42 pm
we passed legislation to reauthorize the provision multiple times and debate the legality of the program as well. 31, we passedober a bill that would institute a number of reforms to the nsa phone metadata program and make a number of other improvements to those authorized under fisa and executive order 12333. i continue to support that legislation, but in the interest of passing legislation now, as soon as we can, before we get into election time, that will continue the business records authority passed its sunset date of june 1, 2015, and remove the bulk record storage from the government, which is what the administration supports now, the house supports, and numerous citizens and businesses appear
2:43 pm
to want. i believe we should take a close look at the house legislation with a view to its passage, perhaps as amended in the senate. that is the purpose of today's hearing, so i would like to welcome the witnesses, and they are in front of us for the first panel. they are james cole, the deputy attorney general. there you are. where are you much mark there you are -- where are you? there you are. richard ledgett, deputy director of the nsa. mark giuliano, deputy director of the fbi. stephanie o'sullivan, the rentable deputy director of national intelligence. thank you for being here. after this panel we will have a second panel of outside witnesses who i will introduce at the time. let me turn to the distinguished vice chairman for his remarks. >> thank you, madam chair, and i join you in welcoming our
2:44 pm
witnesses and thank you for providing testimony on the usa freedom act. are experienced on these issues and i expect our committee will benefit from their insight on this bill. while i recognize this bill has gained a lot of momentum, i think we need to step back and ask ourselves if these changes are necessary. it seems this bill is fixing a lot of things that simply are not broken. for example, the bill will end this section 215 bulk data collection program. all three branches of our government have performed extensive oversight of this program for years and have ensured it has been operated in accordance with our constitution and within the u.s. law. officials toermits conduct historical analysis of suspicious threats in an effort to identify emerging and evolving terrorist networks.
2:45 pm
the system where this data is maintained is very secure. the number of analysts that can access this data is extremely small. there are a host of multi-layered, oversight mechanisms in place to detect and resolve compliance issues. my phone data is in there with ierybody else's, but frankly am not worried. i am not worried because i do not talk to terrorists, and hopefully, i am not talking to other people that are talking to terrorists. what do we get in return for eliminating the section 215 program? untested,et undeveloped process where the intelligence community and send specific selection terms to and inrs and received a a. it can register -- it sounds a lot like a pin register
2:46 pm
, only it will have the capability to pull records that out.wo hops i am concerned this hypothetical register will cause more problems than it fixes. it could be considerably more expensive than the current system, and it will probably also be less secure because there will be more people involved in the process. it will be less capable because the analysts will not have access to the historical data using this new authority, and there will likely be operational delays as the selectors get sent out to the various service providers. the other problem is the bill does not satisfy -- specify a data retention period, leaving it up to the service providers to determine how long to hold the data. it seems to me that swapping the current program of for an
2:47 pm
untested system might be a bad deal from a national security perspective and for the american people. i think a lot of us are feeling the sting from the inexcusably deal thatal security resulted in the release of the taliban five. this protection system was designed to protect us from terrorists exactly like them. i do not think we should be compounding our errors right now. and iyou, madam chair, look forward to dialogue with our witnesses today. chairman.ou, mr. vice we will proceed with witness statements. if you can confine it to approximately five minutes, and give us your written remarks, and that would be helpful. if you need the time, this is important, please take it. generaldeputy attorney cole, who will be followed by stephanie o'sullivan, mr.
2:48 pm
giuliano will. not give formal remarks unless you want to, and you'll be able to answer questions. begin.e, please >> thank you, chairman feinstein, vice chairman chambliss, and established members of the committee. we are pleased to express the for therations support bill recently passed by the house of representatives. i appreciate the leadership and the considerable effort of this committee in working with us to explore how we can increase the confidence of our fellow americans in their privacy being protected while providing our intelligence agencies with the authorities they need to acquire foreign intelligence that is so important to our national security. the bill passed by the house last month would make significant changes to the provisions of the foreign
2:49 pm
intelligence surveillance act that we believe will help us meet these two objectives. it would prohibit bulk collection of information under section 215, the national security letter statutes, and the pin trace commitments of fisa. it replaces the bulk metadata collection program with a new framework that preserves the capabilities that we need without the government holding the bulk metadata. to be clear, the president called for this transition not because the program was illegal or was being abused, but rather to give the public greater confidence that their privacy is being appropriately protected while maintaining the tools that our intelligence and law enforcement agencies need. the bill would also provide greater transparency to the public concerning intelligence activities and authorize the surveillance court
2:50 pm
to appoint independent amicus so alternative views could be heard. mentioned, hr 3361 establishes a new mechanism under section 215 that permits the government to access telephony metadata without having to collect it in bulk. it includes all of the key attributes identified by the president in march for a new program, including, in particular, a requirement that absent an emergency situation, the government would obtain the records only pursuant to individual orders from the fisa court, approved with the use of certain selection terms for such queries and only if a judge agrees the government has established reasonable, particularly suspicion the firm is associated with a terrorist group. as i said before and is worth repeating, the prohibition of bulk collection extends to all bulk collection of records
2:51 pm
pursuant to 215 going forward, as well as under the national security letter statutes and the provisions of fisa. under each of these authorities the government would be a -- required to use a specific selection term as a basis for the collection of records. specific selection terms are defined as "a discrete term such as a term identifying a person, entity, account, address, or device, as used by the government to limit the scope of the information or tangible things that are sought." this definition clearly prevents bulk collection under these authorities, including the collection of the sort that has been conducted with respect to the telephone and internet metadata. itle i have heard people say would allow the government to seek all of the phone records, for example, of a particular zip
2:52 pm
code, that is not the case. that would be the type of indiscriminate, bulk collection that this bill is designed to end. it does preserve the ability to collect information in ways necessary to identify and disrupt the threats that we face. for example, if the fbi learns that an unknown suspect intends to build an improvised explosive device using ball bearings and fertilizer, this bill would enable the fbi to obtain sales records for those items from particular stores in the area that sell those items. or, if the fbi comes aware that an unidentified terrorist suspect spent several nights at a particular hotel, the bill would allow the fbi to request the hotel's guest records for those nights. as the house committee on intelligence noted in its report 3361, "the collection
2:53 pm
means indiscriminate acquisition, not the collection of tangible things." the bill's recognition of specific selection terms recognizes that distinction. other provisions would create unprecedented transparency and further enhance oversight. all, buildsrst of on what the government has already committed to make public regarding the use of national security authorities. in addition to codifying best method to release annual figures, the bill essentially codifies the department of forice's january framework reporting by providers, but has additional options for reported -- reporting broken down by authority. it would require a review of fisa opinions, orders, or
2:54 pm
decisions that include an interpretation fisa and would direct the government to make such orders publicly available to the greatest extent correctable -- practical. it would create a new mechanism to ensure that the fisa court and the fisa court of review receive independent, third-party input in the consideration of novel matters. beyond the authority to challenge orders they receive pursuant to fisa, the legislation would provide a magistrate to appoint an amicus and assist the court in a review that prevents novel or significant interpretations of the law unless the court issues a written finding that such appointment is not appropriate. in summary, we support the usa freedom act as an effective means of addressing some of the concerns that have been raised
2:55 pm
about the impact of our collection intelligence activities on privacy, while preserving the authorities that we need for national security. we urge the committee to give the house still serious consideration as soon as possible consistent with this entity is important role. importantmmittee's role. thank you for the ability to share our views. stephanie o'sullivan will make an opening statement and we will be happy to answer your questions. >> thank you, the star cole -- mr. cole. mrs. o'sullivan. >> thank you. we are pleased to sit before you -- the usa freedom act as passed by the house last month, but i wanted to touch on a few key points in my remarks. over the past year the nation has been engaged in a robust
2:56 pm
discussion about how the intelligence community uses its authority to correct -- collect critical for and intelligence in a way that protects privacy. we take great care to ensure the protection of privacy and civil liberties in the conduct of collection activities. nevertheless, we have continued to examine ways to increase the confidence of our fellow citizens that their privacy is being protected, while at the same time providing the intelligence community with the authorities that he needs to fulfill its mission and response abilities. to that end we have increased our transparency efforts and the director of national intelligence has declassified and released thousands of patients -- pages about the program including court decisions and a variety of other documents. we are continuing to do so. these documents demonstrate the commitment of all three branches of the government to ensuring that these programs operate within the law and apply vigorous protections for
2:57 pm
personal privacy. it is important to emphasize that although the information released by the director of national intelligence was probably classified originally, declassified it because concerns were outweighed. in addition to declassified documents, we're taken significant steps to allow the public to understand how we use the authorities in fisa now and going forward. are currentlye working to finalize a transparency report that will outline on an annual basis the total number of orders issued under various fisa authorities and an estimate of the total number of targets affected by those orders. moreover, we recognize it is important for companies to be able to reassure customers about the limited number of people targeted by orders requiring companies provide information to the government. we support the provisions of the house bill that allowed the
2:58 pm
companies to report information about national security legal demands and law enforcement legal demands that they receive each year. we believe this increase transparency provides the public with relevant information about the use of these legal authorities, while at the same time protecting important collection capabilities. making adjustments to our collection activities and our authority is also part of this effort. for several years the government courtught and the fisa has issued orders under section 215 of the patriot act, allowing the bulk collection of metadata about telephone calls. the president has ordered a transition that will end this bulk collection in a manner that maintains the tools and intelligence agencies need for national security. we are committed to following this mandate. the intelligence community believes that the new framework in the usa freedom act preserves the capabilities the intelligence community needs
2:59 pm
without the government holding this metadata in bulk. the usa freedom act would prohibit all woke collection -- all bulk collection of records pursuant to section 215, the pin andster provision of fisa national letters going forward. the intelligence committee understands and will adhere to the prohibition on all bulk collection under these authorities. moreover, the usa freedom act makes other important changes by further ensuring that individuals privacy is appropriately effected without sacrificing operational effectiveness. to that end, we support the usa freedom act as an effective means of addressing the concerns that have been raised about the while of our activities, preserving the authorities that we need for national security. we urge this committee to give the house bill serious consideration as expeditiously as possible consistently with -- consistent with this committee's deliberations and we are able --
3:00 pm
ready to work to clarify language in the bill if necessary. in closing, we appreciate the committee's leadership, in particular your support in considering issues related to our collection activities and privacy and civil liberties issues. we also appreciate your support for the men and women working throughout the intelligence community's that includes the nsa remain dedicated to keeping our nation safe, protecting our privacy, and who have upheld their oath by conducting themselves in accordance with our nation's laws. look forward to answering your questions. >> thank you very much, mrs. o'sullivan. >> our live coverage of this hearing on the fisa nsa collection of phone data will continue momentarily as the house is coming in now for a --ef pro forma section session.
3:01 pm
3:02 pm
3:03 pm
3:04 pm
3:05 pm
>> mr. vice chairman, first, thank you for the words of support for the nsa workforce. we appreciate that. in my opinion, the country is less safe because of the disclosure of the methods that we use to conduct our for intelligence mission. >> there does not appear to be any requirements of the bill for
3:06 pm
the service requirements to obtain call records for any set period of time, as you discuss with the chairman. mr. ledgett, if service providers decide to scale back their data retention period, how would that impact nsa's mission? >> that would make the information less useful for providing intelligence on the external threat with a u.s. nexus, so we would come back and informed the committee if that became the case. would youliana, how be i be affected if service providers unilaterally decide to cut back their retention periods ? >> at the door would affect the rich fullness and the usefulness of the data. >> would it make other techniques like grand jury subpoenas and national security letters less effective? >> i am not sure he would make them less effective, sir, but if the data is less rich and there
3:07 pm
is less data to use, it would impact the value of the data. >> now, i am in favor of providing a statutory basis for the fisa to use their inherent judicial authority to appoint court hearing when the determines it is appropriate and in our billing made a provision for that. section 401 requires the court to appoint an amicus to assist the court in situations involving "novel or significant interpretations of the law unless the court issues a written finding that such appointment is not appropriate." now, this seems like an unconstitutional infringement upon the judicial's branch's power to interpret the laws of the united states. we routinely entrust our judges to make these determinations in a criminal context. mr. cole, do you think is a good
3:08 pm
idea to try to impose this requirement on fisa courts? thes a practical matter, courts will be appointing amicus when there is a significant and novel issue that comes before them and i think that will happen in the due course. this does not require them in all instances to, but it says in some instances if they decide they do not want one, they have to put their reasons in writing. my expectation is that when it is significant and novel the courts generally will want to have another point of view and have amicus come in, so i think the operation will be virtually the same as if it were just the inherent power. >> so, what if you run into a judge who in every case decides they are going to make a determination that we do not need an amicus brief? do you think it is going to be doj to review the those decisions the judge makes?
3:09 pm
>> no, i do not think there is a mechanism that requires the justice department to oversee employing this. it is still under the court discretion. when you have one that is significant or novel and they do not, they need to state their reasons if they do not appoint one why. >> thank you, mr. vice chairman. senator udall. ,t is udall, king, wyden mikulski, rockefeller, james and yell in. >> let me enter a letter. >> without objection, thank you. >> the surveillance coalition is made up of leading american companies -- linkedin, dropbox,
3:10 pm
google, andebook, yahoo!, and the important letter has ane is the senate opportunity to pass a version of the usa freedom act that was -- that would restore the confidence of internet users here and around the world while keeping the coalition safe. stress goes on to concerns with the house bill and then urges us in the senate to make changes to the house bill. i want to make a set of comments and then i have questions for the panel. on january 17, the president ordered a transition away from the bulk collection of phone records. i share this goal and i applauded his intention at the time. he also stated that "it is not enough for leaders to say trust us, for history has too many examples when that trust has been breached. our system of government depends on the law to constrain those in power." i agree that we must depend on the law to constrain potential
3:11 pm
future abuses of government surveillance, but i believe the house passed bill falls short of this goal and is not the true reform i have demanded in any -- many other americans have demanded for years. section 215 language in the house-test build describing -- house-past bill is vague enough of mass the collection information. i believe it is not this administration's intent to interpret the language so broadly, but the nsa has shown time and time again that he will seize on wiggle room in the law and there is plenty of that in the bill. you, evenlet me ask if it is not the intent of this administration or this congress, what would stop the fisa court from interpreting the specific selection term very broadly if the government should ask it to
3:12 pm
do so? what would prohibit that is the legislative history, the statements of intent, the legislative history we are creating here by and -- by making unambiguous statements that this is intended to stop all collection, and what we are focus,g on is some tailored in queries that will depend on the facts and circumstances, and it is impossible to predict all of them ahead of time, but to make sure that we have focused inquiries and focused collection of information for our investigations. so, i think a lot of that is going to come from both the language of the statute, and if there are improvements that people want to suggest, we are happy to work with them on them, but we think the language does it by using terms like ,"pecific," and "identifiers and things of that nature to make it not indiscriminate. the statements being made by you, senators, in the course of
3:13 pm
your comments, and by the witnesses that come before you making up the legislative history, those would constrain it. in addition, if there were an interpretation by the fisa court that it is very broad, that would be a novel and significant order and opinion and it would be given to the united states congress, the senate, and the senate would have the opportunity to pass additional legislation to rein it back in. i would be very surprised to see it go in that direction based on the language that is here and the legislative history. >> we do have a moment in time where we do have to get this right, and with all due respect courtot remember the fisa showing a great deal of restraint in the past. i want to move my -- to my next question. the current court-approved order for section 215 bulk election expires on june 20, not a long time from now, so in the absence of agreement on congress on a assumingll, i am
3:14 pm
congress will be asking the fisa court for another 90-day extension. it is disappointing. i believe we have the tools to keep the country safe and protect rights. has the ministration looked to what can be -- has the administration look to what can be done if only on an interim basis to and bulk collection now? does it not make sense for the administration to pursue other options to data in bulk collection even as congress does its work? >> no final decision has been made on the renewal, but to answer the specific question, senator, you do not get all of the features on the the existing authority that you have under the current fisa order that exists or under hr 361. hops were get the two the time period given by the
3:15 pm
statute to transition into the thesystem and formatting up phone companies and providers will have to do. so, there are a number of features that we do not have today and would not have today without the current fisa order. as the president had said on the 17th of january, this is important information, but we think we have found a way to collect the kinds of information we need to substitute it with out bulk collection, but without the structure we have in 3361, we do not have that tool. >> my sense, if i can be a bit contrarian, is that the fisa court has expansively interpreted the patriot act to allow the collection of millions of americans phone records, and if you came to them with a more narrowly drawn interpretation of the law as it now exists rent requiring further congressional action, they would
3:16 pm
positively respond. have you made any such request or engaged with the court on those questions? >> we have, to my knowledge, not engaged with the court on those questions. we have a judicially tried and tested method here, as the chairman had pointed out. 37 times the court has approved this. other courts have approved this as well. we are a little reluctant to start going into some other type of legal regimen that has not been tested, that is not been approved by the courts. we would rather go the legislative route were the united states congress and both houses have looked at it, to passted, and decided it. we think our choices at this point really come down to what has been approved by the courts or a number of years, the new legislation, or else not having the tools that we need at all. >> manager, i time has expired -- madame chair, i want to say thank you to the panel for being
3:17 pm
here today. i have a number of questions. i will submit them for the record. >> july, senator udall. is next, but he has graciously agreed to permit senator coats, who has to catch a plane, to make a statement. >> i thank my colleague and i hope i can return a favor. in the interest of not taking time, i will make a statement for the record. i have a number of questions we could pursue as we go through this. i was taken by the words of the vice chairman when he said --xing what is not roping broken -- we have to be very careful here." unfortunately, in my opinion, there has been misrepresentation that the current pogrom regarding -- program regarding privacy concerns, and regarding suggesting the lack of significant oversight by the three branches of government, which, unfortunately, has put us in a position where i am afraid we have over-reached in terms of
3:18 pm
what we are trying to do. i take a backseat to no one regarding our constitutional rights on personal privacy that are guaranteed to us. nevertheless, i think we must carefully review and analyze consequences of any proposed notges to ensure that we do compromise our ability to detect threats against american citizens. the sirennot play to song of the political response simply to these people that we are responding to their misperceptions, in many cases, because there is too much at stake, mainly the security of americans. compromising to please a skeptical and frequently misinform the public, and therefore losing our ability to protect americans is something we have to take very seriously. i think as we go forward we have
3:19 pm
to carefully weigh and consider the response of general alexander to my question to him in a public hearing, when i asked him about the question of diminishing our capabilities to detect and thwart an attack. his answer was "americans will die." we i hope as we go forward keep that in mind as we examine how we are reconstructing this program, and make sure that we're doing everything we can to keep americans from dying unnecessarily. thank you very much. >> thank you, senator coats. .enator king >> thank you, madam chair. thes asked recently what intelligence committee does, and after thinking about it i said our principal job is to way to provisions of the destitution. one is the preamble, which bests us with the responsibility of providing for the common defense and assuring domestic tranquility, and the others the
3:20 pm
fourth amendment to see the people's persons, property, and affects our secure from unreasonable search and seizures. we are consciously trying to find the right balance and that is exactly what this hearing is about today. i have expressed from the very beginning of my service on this committee reservations about the government holding the bulk data . it always struck me as an invitation to abuse. i believe strongly that we have to have institutional checks rather than reliance upon the goodwill and good nature and who faith of individuals are entrusted with that kind of information. i am a great believer in the condition thatus all power corrupts and absolute power corrupts absolutely. i believe this provision that the house is recommended is moving in the right direction. . couple of specific questions
3:21 pm
it seems to me something has to be added to the bill with a timeframe for the retention of records. the question has been asked several times what if they changed it, well, we would go back to congress -- let's do it now. let's decide what the right number is. 18 months is what the fcc requires, i understand, but will -- under our prior consideration we were talking about three to five years, and i would like your recommendation, perhaps mr. ledgett, what the number would be. i would be happier with the number, and with a number longer than 18 months. >> from our point of view, we can live with the 18-month that the fcciod imposes, regulatory point of -- knee inhe knew the curve of effectiveness is right about there.
3:22 pm
>> 18 months you feel this efficient, but should that not be put in the statute because the house bill, as i understand, has no figure in it. is that correct? >> that is correct. that would address the issue on the part of the total communications companies, but as i said, it is not part of the statute. we will come back to the committee. >> well, let's do it while we have the chance would be my response to that. a there going to be requirement or is there a requirement in the bill at the telecommunications companies normalize their record in some way that is useful and able to be searched in a consistent and standardized way? i notice you are not in. can you give me an effort -- nodding. can you give me an affirmative? part of the order to instruct the telik mitigation companies to work with the government to make those records
3:23 pm
-- to work with those companies, to put the records in a format that would be usable, which is usually an electronic format. >> there was some discussion one year and a half ago about possible delays. are you comfortable that this transition from government held data to privately held data will not delay -- if we have a bombing, god forbid, at the boston marathon, are we going to be able to get at that information in a matter of minutes, or is there going to be some further delay because of this change? >> i think that because of this change i am not sure there would be a further delay. we certainly have under the bill emergency powers to try to go to the powers without even going to the court when it is truly an emergency with the authority of the attorney general. we have that ability. the attorney general then has to file a request within seven days . we also, i believe, will have the cooperation of the providers
3:24 pm
that in a true emergency they will help us go through this. i think the data, generally, is there and quite accessible and usable in the formats they are keeping it. it is a modern era. from all of those perspectives, i would imagine if there is any delay he would be minimal. >> final question, cost -- have there been estimates of proposals from the telecommunications companies what, if any, cost will be incurred by the government in order for them to maintain the documents and the standardized format, and those kinds of things? >> senator, it is a little early to give cost estimates at this point. once the law is passed, assuming it is, we need to work with individual providers and each one of them have a different architecture. so, their architecture and our ability and need to interface with that will drive the cost figures. >> i realize this might be a strange thing coming from one of
3:25 pm
us, but it would be nice to know the cost before we passed the law. and of course, the interesting costr would be the net because i'm sure there are savings to not have to maintain this data. i would encourage you that we need some kind of ballpark estimate before we move forward with this legislation just to not have a bad surprise at the end. thank you very much. you could submit that for the record. >> thank you senator king. senator wyden. >> thank you. to her for holding in opening a gash opened hearing. it is constructive and i commend the witnesses for being here. at me start by talking about the fact that the house bill does not ban warrantless searches through americans' e-mail, and here, mr. ledgett, if i might, we are talking about the back the loophole, which allows
3:26 pm
nsa, in effect, to look through a giant pile of communications collected under 702 and deliberately conduct warrantless searches for the communications of individual americans. now, this loophole was closed during the bush administration, but it was reopened in 2011, and a few months ago the director of national intelligence acknowledged in a letter to me that the searches are ongoing today. i am particularly concerned about it because as global communications at increasingly interconnected, this loophole is going to grow, and grow, and grow as a threat to the privacy of law-abiding americans. for the purposes of getting on top of this and working with all of you, my question today is how many of these warrantless searches for americans communications have been conducted under section 702? for you, mr. ledgett.
3:27 pm
>> july, senator wyden -- thank you, senator wyden. the searches under the onlyment, section 702, are conducted under unlawfully acquired data and under approved procedures. the searches are not just conducted by nsa. they involve other agencies as well. we have provided, as you know, detailed information to the committee on the background on this, and we will work with the to and the rest of the ic provide information to you. >> so, when will i get an answer to the question? it is a specific question. the director admitted to me in a letter that the wireless searches are taking place -- that the war and this searches are taking place, and i am asking how many -- warrantless searches are taking place, and i am asking how many?
3:28 pm
i would like it within two weeks. >> yes, sir. >> can we have it within two weeks? >> we will work on that, sir. we will get you a response within two weeks. >> thank you. making some progress. now, the only other question that i had for today was at this moment, your agencies continue to vacuum up the phone records of millions of law-abiding americans, and this is because the executive branch has not taken any action to stop these practices. this others consider enormously intrusive, and the inflated claims of its value have crumbled under scrutiny, but yet right now the constitutional rights of americans are needlessly being violated while, in effect, i guess the administration waits
3:29 pm
for the congress to act. i think this is a case of bureaucratic inertia at its worst. you,he question for all of and maybe we start with you, mr. cole, would be that given that the government could use regular pfizer orders and national security --fisa orders and national security records to obtain the phone records of terrorist and their associates, which i support, why has the bulk record collection not been ended? >> i think it is the same question that senator udall asked. the authorities we have under national security letters and other authorities absent the 215 orders we have been talking about do not really give us the tools that we need. the legislation, hr 3361 gives , --nows, including the hops , prospective
3:30 pm
information that we would not have under certain authorities. we would only get a phone number, and at the key and what it has been in contact with, and then you would have to go back and do separate items for each terrorist and associate that is there. it is not the same tool. , i understand your agencies desire for clear statutory authority, and the chair of the committee, i think, has been constructed here in urging changes to the gives the government broad authority right now, right now, to obtain records quickly. fisa court, unquestionably, has been inclined to give the government and enormous amount of it. the fact that surveillance has taken place right now is unacceptable to me. i will continue to keep working on this and i will have more to a about it, wrote very thank you. qwest iq.

30 Views

info Stream Only

Uploaded by TV Archive on