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tv   Senate Judiciary Committee to Hold Hearing on Foreign Intelligence...  CSPAN  May 16, 2016 12:43am-2:56am EDT

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new issues that stretch your boundaries. throughout this month watch commencement speeches to the class of 2016 in their entirety from colleges and universities around the country. by business leaders politicians and white house officials. the foreign intelligence surveillance amendments act is scheduled to expire at the end of 2017 it allows for mass surveillance of overseas electronic surveillance and communications including surveillance of american citizens. the senate judiciary committee held a hearing on the law and whether it should be ready.
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civil liberties advocates testified at this two-hour hearing. berties advocate testified at this to our hearing. [inaudible] [inaudible] >> today i'm going to introduce some witnesses first and then i will make my opening statement. i think senator leahy is on his way and i would like him to make his opening statement before he received testimony from the witnesses. our first witness is kenneth wayne steen, he is up partner.
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[inaudible] where he serves as chair of the firm's white-collar defense and investigative group. before that he worked for the 19 years at the department of justice including serving as u.s. attorney for d.c. in the first citizen attorney general for national security. he concluded concluded his government service in 2008 serving as a homeland security advisor to george w. in that capacity he coordinated the nation's counterterrorism infrastructure and disaster response and recovery efforts. he has an undergraduate degree from the university of virginia and his law degree from berkeley. the second witness, matthew olson, olson, president of consulting at iron net cyber security from 11 --dash 14 he
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served as director from national counters and center under president obama, prior to that he served as general counsel for national security for the good time a task force and spent more than 18 years at the department of justice including serving as a deputy assistant attorney general oversee national security division. mr. olson is currently a lecture at harvard law school on national security law practice, undergraduate degree from virginia and the university of virginia and law degree from harvard. our next witness he codirects the center for justice and national security program. before that she served as counsel senator feingold on this
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committee is trial attorney in the federal program branch civil division branch. she a law degree from yale law school. next witness is david medina. chairman of the privacy and civil liberties oversight board. before that he was attorney fellow for the security exchange commission from oh 222012 he practiced law firm in washington. from 92 until 2000 he served as associate director for financial practices at the ftc. he has his undergraduate does degree from hampshire college and law degree from the university of chicago. our final witnesses misprint. she served on the privacy and civil liberties oversight board
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since 2012. has served as vice president and chief counsel for regulatory litigation at the u.s. chamber litigation center and practice of law at two firms in washington. she is also served as assistant attorney general for legal policy at the department of justice and associate counsel in the office of white house. she has her undergraduate degree from the university of minnesota morris and her law degree from harvard. most importantly she has been an intern in my office and she is from allah iowa. palayou ought to clap that. i'm going to make a statement now and then senator leahy will be here and i will let the witnesses speak. almost exactly 66 months ago our nation's oldest ally, france suffered the deadliest attack on its soil
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since world war ii. in a series of coordinated suicide bombings, mass shooters and hostages taken across paris isis held 130 people and people and injured 160. the president of france refer to that as an act of war. a month or or so later in december, the united states sustained the most deadly terrorist attack on our soil since september 11, 2001 in san bernadino. a couple of inspired by isis up and fired on an office holiday party killing 14, injuring 22 more. a few months after that, isis struck again in brussels, the home of nato's headquarters on march 20's second, it marked launched a series of court made by means at an airport that killed 32 and injured more.
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these attacks underscore that one of our core responsibilities of our government is to ensure those that protect us every day including the intelligence committee have the tools to keep us safe. these tools must adapt about the changing technological landscape and the evolving security threats but at the same time the rights and liberties in our constitution are consonants duty as of this committee to be insured that they internal matter what. section seven oh two of the amendments act which provides the government the authority to collect the electronic communications of foreigners outside the united states will compel assistance with the american companies sits at the intersection at these responsibilities. in 2008, after much debate and
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discussion, this law was passed by congress and signed by president bush. in 2012, it 12, it was reauthorized by congress without any changes and with president obama's strong support. from all accounts, it is proven to be highly valuable in helping to protect the united states and our allies. moreover, the privacy and civil liberties oversight board and many other federal courts have found section seven oh two constitutional inconsistent with the fourth amendment. the questions and concerns persist for some about its effect on our civil liberties. most of these concerns relate to the treatment of communications collected when it turns out that a targeted foreigner is in contact with somebody inside the united states.
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of course these are also situations where the program can be highly valuable. by letting our government know if a foreign terrorist plot might reach our shores. so this committee's oversight of this law should continue to be robust and although the fisa for amendment act does not require congress to reauthorize it until the end of 2017, i like to begin the conversation about it well in advance. that is why i requested that the committee receive a classified briefing from the obama administration on section seven oh two back in march of this year. it is why why i am so glad to have such a distinguished panel here with us today to talk about those issues. it is why i am sure it will continue this public dialogue with the administration and
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others in the future. as i mentioned, section seven oh two allows for the targeting of foreigners located overseas for surveillance. the statute specifically prohibits the targeting of anyone within the united states or any u.s. person, where that person is located around the world. it is also prohibits what is called reverse targeting. that is targeting someone outside of the country for the purpose of targeting a specific person who's located inside. under the statute, the fisa court much of must approve the targeting and minimization procedures to ensure that only appropriate individuals are subject to surveillance. and that limit the handling and use of any communication so collected. implementation of the statute is
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overseen by all three branches of government including the appropriate inspectors general. it is true that human error has lead to mistakes in implementing the law over the years. but it also is significant that no internal or external review of section 702 program has ever found any instance of an intentional violation of the law. moreover, section 702 has been highly important for national security. the privacy. the privacy and civil liberties oversight board found unequivocally that it can't quote has helped the united states learn more about the membership, leadership structure, priorities, tactics, and plans of internal terror organizations, it has enabled the discovery of previous unknown terrorist operatives as well as locations and movements of suspects already known to the
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government. it has led to the discovery of previously unknown terrorist plots directed against the united states and foreign countries. enabling the disruption of those plots. the board came to these conclusions about the value of section 702 programs after conducting a lengthening, in-depth review of it. just as importantly however, the as importantly however, the board found that the program was constitutional and authorized by statute. in addition, the board proposed a number of recommendations to help improve the privacy and civil liberties protection of seven oh two. according to the board's most recent assessment report, just in this february, all of its recommendations have been implemented in full, or in part for the relevant government agencies have taken significant steps towards adoption. that is encouraging news, among, among other things i look forward to
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hearing about the status of these recommendations today as we discuss reauthorizing this important national security authority. now what i think we'll do is start with the first witness, mr. weinstein and then senator when senator leahy comes, we will stop and let him give his opening statement. would you proceed please sir. thank you chairman grassley. members of the committee, it is an honor to be with you today to support the reauthorization of the fisa memo asked and discuss issues it raises with my distinguished palace. since the attack of september 11 2001, we have been engaged in a methodical effort to enhance her intelligent capabilities, in particular to build a legal and operational framework that
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affords us the ability to intercept our adversaries communications. the centerpiece of that has been congress's decision to modernize our national security surveillance effort by passing the fisa amendments effort by passing the fisa amendments act, the faa in 2008 and reauthorizing it in 2012. it's important at the outset to remind yourself why it was necessary to modernize the surveillance act in the first place. as you know, the the fisa was passed in 1978 after the committee hearings and the abuses they disclose persuaded congress that it should be subject to judicial review. congress passed fisa and to find those of surveillance, they required approval from that court, in finding which surveillance fell in the category, congress differentiated by the technology of the communication, in a way that effectuated its intent to have court approval for domesticated where the fourth amendment apply but those communications that were foreign-based or the fourth amendment does not apply. however, with the change of communications technology in intervening years that carveout started to break down.
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with result of the government found itself into expense significant manpower generating individual fisa court applications for surveillance as against persons were outside the united states. the very category of surveillance that congress specifically intended to exclude what i'm opposed to the fisa court approval requirement 1978. that situation become unattainable with the after 9/11. to its enduring credit, congress stepped up in the spring of 2007, undertook a thorough analysis and debate about how best to revise pfizer and ultimately pass the fisa amendment act in july 2008 and its reauthorization in 2011. about occasions both parties crafted a law that was a step forward for both national security and civil liberties. the statue amended fisa in three part ways. first, and was significantly, it
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authorized the fisa court to approve surveillance of categories of terrorist suspects and other foreign intelligence were overseas without requiring the government to provide an individualized application as to each particular target. in section seven oh two, the faa described in a streamlined process by which categories of overseas target can be approved by target surveillance pursuant to strict requirements and subject to review and approval by the fisa court and a substantial oversight regime by entities to include the attorney general, the director of national intelligence, the heads of the inspector general's, the fisa court and intelligence and judiciary committees of congress. in addition to providing this authority in prescribing oversight, faa awful also the protections of american persons by imposing for the very first time, the requirement requirement that the government obtain individualized order from the fisa court one of the for it undertakes surveillance of a
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u.s. person. in some ways it was a very well calibrated piece of legislation. he provided the government with the authority it needed but did so in a careful eye on the importance of oversight and on the privacy rights of u.s. persons. since its implementation, faa authorized authorized surveillance has been critical in detecting an understanding that threats we face. that is the case when eyes reviewing faa reporting is homeland security advisory 2008. it is still the case today, as you the case today, as you know from your briefing the other day. partly, besides being implement it effectively it has been implemented responsibly by evidence of the findings that have been no known incidents of intentional misuse of that authority. in supporting reauthorization i ask you to support the vital importance of the faa surveillance to our counterterrorism efforts. to the extreme care in which congress about parties crafted and delivered the authority when they pass they paid 2008 and
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reauthorized a four years later. and the findings that this authority have been implemented in great effect with the compliance of the law and the constitution. in addition to these considerations we want to focus on another important consideration which is the severity of the terrorist threat we face today. given that threat is evidenced by the recent attacks, now was not the time that we can our defenses or scale back on critical intelligence security like the fisa act, to the contrary now we need to make sure that we have the authority they need to protect our country and time to reauthorize the statue that is done so much to protect our people in our liberties for the last eight years. thank for the opportunity to speak about this issue and i look for to your question. >> thank you. before mr. olson goes head, i would ask senator leahy to give his opening remarks at this point. >> thank you mr. chairman. as i mentioned earlier, we have conflicting schedules this morning. this is a very important hearing and i think a year ago this week the house of representatives
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overwhelmingly passed usa freedom act, several weeks later the senate followed suit. that marked the first major overhaul that government surveillance authority in decades. now today, we are examining the fisa act referred to as section 702, this expires, this expires at the end of 2017. i'm glad we are getting an early start on this. i hope we can avoid the need this expiration of authorities that we have seen last year in the leadership would not bring up the usa freedom act until after the exploring expiration. i am also glad and i pledge you on this mr. chairman that we are holding this hearing in the open. so the the american people can be part of this conversation. this type of discussion was not possible last time, almost almost every thing about its implementation remain classified.
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since then the obama administration has did not classify much about it, so the transparent see freedom act is it prompting our efforts, we have a lot of work to do. we're still missing a lot of facts about section 702 implementation additional implementation additional reforms that needs to protect america's privacy, we also have to restore global trust in the u.s. technology industry. not a minor thing. section 702 is an is an important tool for national security agencies. it's also extremely broad. section 702 is aimed at surveillance of foreigners outside the united states. it sweeps up a sizable amount of information about citizens in american art medicated with foreigners. so the authority to require
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strong oversight and transparency and protect the american people did in 2008 and in 2012 i oppose the fisa amendment act because it lacked safeguards. despite these concerns are americans communications are being swept up we still do not know how much is collected under this authority. i understand intelligence community is now developing methodologies to estimate that figure and it's long overdue, i applaud that it is happening. it is all the more significant because both intelligence and law-enforcement agencies search this data for information about americans, without judicial approval the backdoor searches i think ray some serious constitutional questions. i asked consent to enter the record with testimony from
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several organizations that raise the initial concern including. >> without objection they will be included. >> i just want to conclude this. i know we're going to hear about the importance of this authority to our national security. i understand that. it's a conversation we should have. we also must assure that surveillance operated under section seven oh two respect the other part of american our liberties and our constitutional values. because, unless they align with that is a false sense of security. i look forward to hear from our witnesses. >> mr. olson would you continue. >> thank you chairman grassley. i'm honored to be here this morning to talk about this important issue. as former director of the counterterrorism center i can attest attest to the value that faa has provided to our national security it
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significantly has contributed to our ability to prevent terrorist attacks inside the united states and are round the world. as a former general counsel of national security agency and official i was responsible and those jobs of insuring the law was implemented in a way that complied with the law, the constitution and protected the private citizens. in my brief remarks i will focus on the section 702 and the value it has provided. i provided. i think to start, to appreciate the importance to describe briefly that the threat the united states faces from terrorism. the range of terrorist threats we face from al qaeda link groups has expanded and become more diverse. by any measure that prevents the most urgent threat to our security today. it's governing territory and a
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the same time secured the allegiance of terrorist groups across north africa and the middle east. it sanctuary in syria and iraq have provided the ability to recruit, train and execute external attacks as we have seen now in paris and brussels. it brussels. it also has the ability to incite others surveillance around the world as we have seen a san bernadino. looking more broadly isis is not the only threat we face in syria, veteran and al qaeda fighters have taken advantage of the impairment there. they're seeking to carry out attacks against the west. al shabab has a safe haven in small you, threatens you, threatens our interest in the region, boko haram, now and i'll i have isis continue to maintain their basis in northwest africa. al qaeda continues to support attacking the west. once to be the leader of a jihad. their substantial influence over affiliate groups in particular al qaeda and the arabian peninsula commented on three occasions over the past years
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they have sought to bring down an airliner headed toward the united states. there is ever reason today to believe that they ha this intelligence was instrumental to our efforts to discern the capabilities of our adversaries, both strategic judgments and tactical insights. to specific cases now declassified highlight the value. 2009, nsaer of analysts used 702 to target an e-mail address used by a career in pakistan. they identified a message sent to an individual in colorado. he was urgently seeking advice
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on how to make explosives. showed investigation that him and a group of operatives had imminent plans to detonate explosives on a new york subway. the fbi and local law enforcement stuff attack -- stop the attack. case, they conducted surveillance of an email address used by a suspected extremist in yemen. this led to the discovery of a connection between that person and an unknown person in kansas city, missouri later identified, they investigated and found he was connected to other al qaeda it within the states who wanted to bomb the new york stock exchange. they were prosecuted and played guilty. in the context of these cases were emphasizing the role of collection under section 702. the government collected the information directly as a consequence of their from their seven oh two -- so-called
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incidental collection led to the initial identification of of the two men and enabled the government to use the tools to advance their investigation. beyond the united states section 702 it's been an invaluable tool in supporting counterterrorism efforts of our allies around the world. finally in describing the values of section 702 it's important important to describe why it's important. as deputy assistant general from 2006 to 2009 oversee doj for night intelligence i experienced firsthand the consequences of the pre-faa approach, in some cases it was not possible under that prior approach to demonstrate probable cause of a foreign target overseas was an agent of a foreign power. in short, section 702 authorizes the government consistent with the constitution to obtain critical intelligence about terrorist and other targets that it simply cannot obtain by other means.
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in conclusion, i say that the authority congress established under section 702 has played an indispensable role in protecting the nation from terrorist threats. i look for two questions. >> thank you. chairman grassley, ranking member leahy and members of the committee thank you for the opportunity to testify on behalf of. our nation faces real threats of from international terrorism. your challenge in your responsibility is to ensure that these threats are addressed. not only effectively but in a way that is consistent with the constitution, the privacy interests of law-abiding individuals and our nation's economic nations economic interest. section seven oh two, and its current form does not accomplish those. technological advances have revolutionized communication.
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people are communicating on a scale those on a manageable just a few years ago. international phone calls, which were once difficult and expensive as i remember are now a simple as tapping the screen. the internet offers offers countless additional means of international communication. globalization makes these exchanges as necessary as they are easy. as a result, the amount of our information about americans that the nsa intercepts, even when targeting foreigners overseas has exploded. but instead of shoring up safeguards for ordinary americans and foreigners who communicate internationally, section seven oh two did the opposite. it eliminated the requirement of an individual court order to collect communications between foreign targets and americans. that also eliminated the requirement that the target be affiliated with a foreign power or terrorist group. the government today can target any foreigner overseas regardless of whether he poses any threat to the united states and obtained his communications with americans.
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will the government must certify that acquired foreign intelligence is one of its purposes, the law defines foreign intelligence broadly enough to include conversations about current events. moreover, the government has introverted the law to allow collection of communications, not just to and from the target, but about the target. this legal this legal change underlies the nsa's upstream collection program whereby a huge proportion of communication is flowing into and out of the united states are scanned for selectors associated with designated foreigners and picked up. they're used up screen, then essay collects more than 250 million internet communications per year. that undoubtedly includes millions, if not not tens of millions of americans e-mails.
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as we know, wholly domestic domestic medications are included as well. to call this targeted, their deep constitutional concerns. the fourth fourth amendment may not apply to foreigners overseas but when a law is designed to collect communications between foreigners and americans, the fourth amendment is very much in play. when the fbi searches through those communications were evidence to use against americans in criminal cases and then fails to notify the defendant how it obtained the evidence, it drives a hold the size of fort me through the fourth minute. constitutional concerns aside, the mass collection of communications comes with significant risks and harms. the fiasco reminded us of how vulnerable covenant databases
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are. any massive database that contain sensitive information about americans carries with it the risk of abuse or negligent mishandling by this sort feature administration. it also threatens our economic by impairing the legal and practical to do business with customers overseas. we are told these risks are justified because section 702 has oh two has helped to stop terrorist plots. but the question is not just whether section 702 is useful. we must also ask whether effective surveillance can be conducted in a manner that is less intrusive with fewer cost for liberties. one final point. with constitutional balance set by the court, americans should be able to decide for themselves how much surveillance is too much.
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to do that we need information. five years after senator first requested an estimate of the number of american communications collected under section seven oh two, we are still waiting. congress and the public need this basic information for the democratic process to work. thank you. i look for to your questions. [inaudible] >> chairman grassley, ranking member leahy and members of the committee thank you for the opportunity to testify today and the reauthorization of section 702 of the fisa amendment act. in 2014 the privacy and civil liberties oversight board which i chair issued an extensive report on section seven oh two and how it operates. in part to foster just the type of democratic debate were having today. in short, section 702 surveillance program collects the contexts of collects the context of communication of nine u.s. persons outside the united
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states for where there is a foreign intelligence value. as mentioned earlier it is proven to be a valuable intelligence tool for the government thwarting terrorist plots and provided valuable information to decision-makers. section 7027 oh two has two components. prism and upstream. the government collects the context of target emails and other comedic asian's from electronic medication providers. other targets are non-us persons, from time to time they communicate with americans and as result the government is collecting large quantities of americans can indication. these are incidental communications because the u.s. persons are not the target but this not in a room because they're known in advance that american medication will be collected. in contrast the upstream program they give access to the backbone over which some telephone internet and can collect e-mails and phone calls. i using about collection the government does not look just in
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the header of just two and from an e-mail but also scans content of the e-mail for a targeted selector. as a result of flies and i were comedic in them by email and i sent her a message with an email address for my uncle in turkey so she has a place to say when she's traveling, if it turns out my uncle e-mail addresses one of the 94000 currently on target found at seven oh to program my email would be picked up and copied into an nsa database. even though none of us is excess suspected of wrongdoing. even my uncle may not be suspected of wrongdoing and may have valuable intelligence information. if this program is continue it should have a privacy and civil liberties particularly where u.s. persons are and i recommend three changes. first, many of the communications collected under 702 have nothing to do with terrorism and crime. they include family photographs, love letters, personal and financial
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matters, discussion of physical personal financial matters, discussion of physical mental health and political and religious exchanges. u.s. person queries to that database are therefore capable of revealing a significant size of americans personal life. this case were americans who correspond frequently with foreigners including relatives, friends, business associates. since no one was ever issued for these communications there should be some form of protection. before quitting these databases for u.s. person identifier, intelligence agencies and the fbi should be required to cement a u.s. u.s. person identified queries to the fisa court for approval other than circumstances. most important here is that there be impartial life tenure of a federal judge as a final say over whether americans personal communications are collected and reviewed. second, upstream communication race to potential concerns. one is the collection of chilly domestic communications to american to american and the others over collection of communications. building on the recommendations put forward on the 702 report
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technology evolves the government should be required to evaluate the effectiveness of screaming of communications and also should determine ways and separating these so weak that policy decisions as to whether all of them should be collected. there come a large number of u.s. persons incidental communications arse collected in 702. how many? in order to have an informed democratic debate about the scope of this program, it is important that citizens and members of congress know how many are being implicated in this program. at no reason to doubt that the government has had to encounter difficulties and quantify the number of u.s. persons.
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nevertheless, i urge the committee to require all agencies under section 702 to develop a manageable way to gather statistics and provide them to congress on a regular basis. i hope congress will use the reauthorization process as an opportunity to enhance privacy and civil liberties protections from section 702. while maintaining a program that has provided an enormously invaluable information to protect the country from invaluable information to protect the country from terrorism. i appreciate the opportunity to present maybes to the committee. thank you. >> mr. chairman, rink and member leahy members of the committee, think of for the opportunity to testify today about section 72 of isa. i serve as a member of the privacy and oversight board. although you have already discussed some aspect of the 702 program, it has been so widely misunderstood that i think a few key points are worth stressing. the first is the limits under which the seven oh two program operates. section seven oh two,
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icad target versus only authorized by the fire it -- by the pfizer court. fisathorizes only -- court. although u.s. persons cannot be targeted, some information will be collected. if a target communicates with a u.s. person, that communication will be collected. that does not mean all of that u.s. person's communications will be collected, only with the target. if those communications revealed a terrorist threat inside the united states, there would be among the most important communication's collected on the program. because this has privacy implications, the statute requires them to operate under strict rules.
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the second major point is that section 702 is unquestionably a highly effective source of intelligence. that 702imously found collection has helped to disrupt and understand terrorist operations, priorities, strategies, and tactics. the program was authorized by congress and the board did recommend refinements to the program but did not find them to be legally required. it is worth noting that the board five members were unanimous in the central conclusions. we are also unanimous in virtually all of our recommendations on how to improve the privacy protections. when issue that divided the board u.s. person queries. concerns u.s. person queries. the particular concern has been raised about u.s. person queries by the fbi. i would like to address that for a moment. at the fbi typical early investigation is to declare the
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fbi database to see what they know. they do not distinguish between u.s. persons and others because nationalities is normally irrelevant to a criminal investigation. if it contains a subset of the information collected under 702, though none of the data collected upstream so none of the about communication that mre the database along with other databases, even if the crime be investigated is not related national security. however, it is a extremely unlikely that a query in a non-national security will hit on 702 data. someone suggested requiring. someone suggested recording the fbi to get court approval before collecting an investigation of a non-national security crime. the board to not recommend this approach and i think it would be a mistake.
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if the interest of time i'll mention a few reasons why. require an additional approval would be a step toward redirecting the share while that the government has worked so hard to tear down since 911. investigator looking into non-national security crime it would likely not expect to find a connection was 72 information. if information. if such a connection existed it would be important to know. the pi procedure should not limit queries in a way that would prevent the government from discovering these potential connections. women should be placed not on queries of information but on the use of that information. the law should and does if it is responsive to a query. this includes for example, amazon who can be responsive information, high-level repairable requirements before the information can be used in any criminal proceeding. and notice to a defendant if the communications are used against him. i believe these protections strike the balance between getting the benefit of the information of importance information collected and protecting the interest of those whose communications are collected. thank you. i look what your questions.
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>> went to ask, based on your experience serving government, what else can you tell us in this unclassified setting about the value of seven oh two surveillance and how it is been used and how would it affect our intelligence capability of congress failed to reauthorize? >> thank you. i'll be brief and turn it over to mr. olson was more current information since he recently left government. i was the homeland security advisor in 2008 when the vice amendment act was passed. at that point, as you recall the intelligence committee was already collecting surveillance intelligence to the protect america act which is the stopgap app application. you can see at
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that point the richness of the information i was coming into the reporting i got got up to the white house. it was, you could tell it was a major step forward. as i mentioned in my remarks earlier, that is critical, it's a critical remedy for the problem that arose with the changing technologies over the time between 1978 and one vice amendment act was passed in 2008. if we're to go back to that point we would be back in the same situation where we have too many surveillances that are critical to carry out and not enough manpower to do individualized orders for to do individualize orders for each of them. >> mr. olson. >> essentially agree, i was in the justice department before the fisa amendment act was passed. we were at that point's having a very hard time keeping up with the number of terrorist targets that we're trying to attract who are not u.s. persons were located overseas. we're sticking into the latch warrants for the system was overwhelmed with the effort to try to get individualize
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probable cause warrants to those who are not entitled to fourth amendment protections. the fisa amendment act change that and consistent with the constitution to go back to that, especially in the current threat environment which i am confident would overwhelm executive branch. i will say in terms of the value today, my last post as i mentioned i saw the value on a daily basis at faa reporting. it was typical for in the report to say this came from faa or seven oh two collection. and it cited 30 cases in their report based on their classified review of their ability to the classified information. thirty specific cases in which 702 was the catalyst that identified previously unknown terrorist operatives or plots. that is 30 cases that they were able to say were otherwise unknown. >> about some people suggestion
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that we get judicial approval or a warrant before acquiring the database of seven oh two with a u.s. persons phone number e-mail, and your testimony a moment ago you mentioned one reason you thought it was not a good idea, are there other reasons that you can describe for us that in your view makes such requirements problematic? >> thank you thank you mr. chairman. i will mention two. one is that i'm not sure for the protect privacy to do that. number two i'm not sure be workable. with respect to privacy, the query is a relatively unintrusive tool.
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it's less intrusive for the government to look at information it already has than to go out collect more formation about a person. but if you require judicial approval before query can be conducted the government will have to assemble a package for the fisa court which will require them to go get more information them to go get more information which means it would require more intrusive means to justify the less intrusive means and that seems backward. in terms of workability, as i said before, the fbi does not distinguish between u.s. person queries and others because is normally irrelevant. if an agent or analyst is doing a bank run investigation and they want to see with the fbi knows about someone they are not going to indicate whether as a u.s. person or not, because there's no reason to ask that question. it's not clear to me how you not clear to me how you could find a workable system of finding approval without requiring it for all queries. because of the fisa court process is cumbersome and time-consuming that would likely result in no queries which would result in 702 information and other investigations which i think would be a mistake. >> a follow-up for mr. weinstein and mr. olson, based on your experience of law-enforcement and the intelligence community, what with the operational effect be to subjecting these queries to judicial approval?
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>> i agree with this brand. it is hard to predict, but it certainly the case having worked in national security division that it would mean it was slow down the process of simply searching for information that would be collected. the attorneys in the national security division's weathers fbi or an essay would have to compile applications to the courts. now in case that the court can move quickly and it's proven it can move quickly there's no doubt that it would become a more cumbersome and slow process in instances where i'm confident that agility and speed is critical. i think without really any gain from privacy perspective and the record that does not have any indication of abuse in terms of the current approach of allowing these agencies to conduct without judicial approval. >> go ahead. >> thank you mr. chairman just
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had to that, just keep in mind that kind of requirement is not in place for let's say information collected incidentally communication under title iii which is the criminal statute. so it's a bit ironic that you would impose that requirement in the national security contacts were often you try to prevent something from happening like a terrorist attack. where speed is of the essence and that requires a criminal criminal context where speed is of less importance. >> senator leahy and then senator from texas i'm going to step out for just a minute. you to go ahead. >> thank you. i think everybody agrees that we want to keep the country say. i do appreciate numbers being tossed around here. i was worried about what's always behind the numbers that we heard from different issues from the nsa. about 52 attacks wiretaps stops and then the numbers were always
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given until they testified in public in 522 became a dozen which became five which became part of one after the fact. suggested these are exactly the savior but i always worried about numbers that we were assured that americans privacy was protected because of the tough security majors nsa had. they were were not good enough to stop at 28-year-old from stealing all the information bringing it to china and russia, but otherwise they were very protective american rights. part of this worries me. i want us to be secured but i also want, we can be very secure we put a tail in every single
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american and search every single american's computer and phone. none. none of us are suggesting that. but i worry that we do parts of that, so let me ask, why do you agree with the review group that congress should inquire a court order based on probable cause? >> thank you. i think to understand what is so disturbing about those searches you have to look at what comes before them. in order to fit its way into the
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foreign intelligence exception as it's called with the fourth amendment and in order to avoid getting a warrant or getting in individual fisa order, the government has to certified to the fisa court not only that it is targeting a foreigner not an american, not only that it has a foreign intelligence purpose, but also that it is not doing any reverse targeting which means it has no intent to target any particular known american. then having american. then having made that certification as soon as the debt is obtained all three agencies can sort through the data looking for the communications of the very particular non-americans in which the government just disclaimed any interest. the fbi does not even need a foreign intelligence purpose to do it. the fbi can search for evidence in criminal cases that have no national security or foreign intelligence hook on it whatsoever. this is a bait and switch that undermines the spirit, if not the letter of the reverse targeting prohibition. more important it undermines the purpose of that prohibition which is to ensure that section 702 does not become an and run around run around the fourth amendment's requirement and round the fisa individual order requirement when an american there's a target. the presidents review group on intelligence communication technology which included a
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former deputy director, and acting director of the cia, former chief counterterrorism advisor to president george w. bush, recommended a warrant to search american's communication. they were not trying to rebuild the wall, they were trying to protect americans for warrant list surveillance. that is what close in the back doors about. >> somewhat argue that we shouldn't worry because section seven oh two programs are minimization procedures and limit the use of retention and information. so i i would ask both of you answer, you believe the current minimization procedures ensure the data about americans is is that it deleted.
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is is that enough? it calls for the deletion of information upon the discovery to determine whether it has any foreign intelligence value. with the board's report found that information is never deleted. it is just in the database for five years or sometimes longer. so the minimization does not really address privacy concerns again where there has been no warrant at all in the process and when the government shifts its attention from the non-us person to americans communication there should be court approval and that exchange. as mentioned earlier in title iii that has been a work before the parishioners collected. we can't we people emails and listen to their phone calls without court approval. the same should be true when the
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government shifts their attention to americans under the program. >> to go with that? >> i do agree with that. i. i think there's an idea that if the government has collected information lawfully should be able to use it for any legitimate government purpose. whatever that may have another context, it is clearly not the case with section seven oh two because congress has required minimization. minimization is the opposite that you can use it for any purpose you want. constitutionally's not the is not the case either because reasonableness inquiry includes an assessment of whether the safeguards on americans in our system. >> thank you. >> think of her being here. i'm actually encourage that everyone on the panel, including people sitting appear agreed that targeting foreign intelligence sources using seven oh two has been not only demonstrate his constitutional but also effective. we will somehow limit ourselves to foreign intelligence in a way that could make us less safe? that's an important conversation
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to have. but i'm pretty clear of where i come down. the concern is of course with what is happening in syria. with the growth of the of islamic state or whatever you want to call them, with the meltdown in libya where you are seeing pathway of foreign fighters now making their way into europe where course they don't need a passport to travel among various member states of the european union. many of those countries have that visa waiver programs with the united states whether people can gain access to the united states or whether they can just in the case of san bernadino radicalized people in place. >> ..
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the impact on american citizens come although, the fact of the matter is, as i understand it, the only american citizens who will be impacted by this process without a court order will be those who are communicating with a known terrorist target overseas. now, that is not exactly an innocuous purpose, it seems to me. i wonder briefly if you could talk more about what efforts have been built into this program to minimize the breath of the sweep of this program in a way that would otherwise pick up american citizen communications in a way that really frankly the
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intelligence community could care less about. >> thank you, senator. one of the hallmarks of the legislation is that all three branches of government play a role in ensuring the laws implemented in a way that protects privacy and civil liberties. the executive branch is on the front lines. the court plays a robust role. i can tell you that it is -- the court is not a rubbera rubberstamp. it is aggressive and assertive and its oversight. with respect to particular to us persons information on the minimization procedure the exact opinion that judge hogan reached last fall and a case that was declassified recently, an 80 page opinion
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finding that the government's recent certification was constitutional and complied with law and in particular that the use of fbi queries of 702 was also consistent with the law and the constitution. >> under the 4th amendment the issue is whether the searches reasonable. >> yes. >> some people are suggesting there is some outright prohibition here, but under the protective mechanisms, as you say, built into the statutes the courts have upheld access to communication by an american citizen with someone whom we know is a target for foreign intelligence purposes. i know this was not meant seriously, but he mentioned sweeping up love letters. my staff tells me that there is a significant case recently where terms like wedding cake and marriage were used as codewords that
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the terrorists used to plot attacks against the united states. is that something that you can talk to us about? >> certainly it was a key case that the government referred to. >> in our zeal to protect love letters we don't want to protect terrorists who use codewords that might otherwise escape scrutiny by the intelligence committee. >> give a brief example, hypothetical, to foreign terrorist targets in syria communicating with each other. say they share a passport photo of an american. that would be viewed by the nsa and the collection under 702. that could be innocent, just two people sharing a photoa photo of somebody that they know. it would be a significant interest.
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surge 702 quickly he might not be probable cause to do that that that would be within the statute. >> we talked about the law but when law enforcement and intelligence and probable cause. prosecution under the 4th amendment were american citizens rights in the bill of rights has to be protected by court order. terrorists do not have protection of 4th amendment, nor is probable cause required to get that information which is a point we need to continue to hammer home because people are confused.
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>> thank you very much, mr. chairman, and thank you for holding this hearing because it gives us an advance on the hearings that will be held certainly next year, and so i very much and want to commend those who serve. it is good to see you again and thank you so much for your service. as a long-term member of the intelligence committee about 15 years now we see the value of this program frequently. the problem is that the government has been reluctant to declassify sufficient numbers of cases so that the public gets an understanding of the value of the program, and that case has been used in the 215 situation, used intensively in the 702 situation. for anyone that is listening, it is really important to declassify more
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of these to show the value of this program, those of us that meet two afternoons a week see the value of the program. maintaining constitutional guarantees. unclassified report on the ability to query section 702 using us personal identifiers has an essential national security tool, and i would like to read aa couple of things and then ask if you will comment on them. and he is talking about using a us person identifier and saying that it would impede and in some cases preclude the intelligence
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committee's ability to protect the nation against international terrorism and other threats, and then he discusses that such a requirement is not required by the 4th amendment, it would be impractical, and it impractical, and it is rare the intelligence community begins an investigation already having developed probable cause, and i believe that has been said by one of our witnesses. i would like to ask mr. medellin and others to comment on the text of your recommendation, there are 22. many have already been accepted by the government. but the one i'm curious about is on page 16, recommendation two, updating the fbi minimization procedures to accurately reflect the bureaus query of 702 data for non- foreign
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intelligence matters and place additional limits on the fbi's use of section 02 data in such matters. would you comment on that please? >> thank you, senator. one of the things discovered in the investigation was, our brand indicated that the fbi routinely looks into 702 databases, and not just investigations what assessments when the fbi has no suspicion of wrongdoing but they are entitled to poke around and nonetheless access to query the database, but the minimization procedures were not transparent about that process. >> are you saying there is belief that there should be a fisa board approval prior to querying? >> the majority did not support approval but the
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judge and i, a member of the board and i dissented. >> please put because this is going to come up, please put before this body both sides of the question. >> sure. on the side of having a query, as i mentioned earlier, under the 4th amendment the government is now accessing american personal communication. this program does not just target terrorists. it might be a different situation if that was the case. this is anyone with foreign intelligence value, and innocent businessmen or anyone in or out of country. we have an american talking to someone who is potentially innocent of wrongdoing and can capture the american communication, love letter, business
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transaction, but all are being captured. when we shift attention there should be court approval. >> i want to hear the other side of the question. >> thank you, sen. it is important to keep in mind when you are talking about the fbi and queries of 702 data you must keep in mind the scope. the pi does not get upstream data. there are two aspects come as you now. upstream is more concerning from a privacy stand peemack. the fbi point. the fbi does not get that data. they get a subset. now, when concerns are raised about queries, the concern is not raised about querying international security investigation because everyone seems to agree you want to be able to. but querying that in other investigations.
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>> when we were doing our report inand discussing this issue with the fbi, they were not able to give us an example of that ever having happened. it is at the least extremely unlikely, and the judge referred to the possibility is remote if not entirely fierce. it's unlikely to come back in a criminal investigation, but as i said, if there is a connection, you wanted to be discoverable. >> thank you. thank you. >> senator tillis. >> mr. chair. i was glad to hear about the value of this program. many of us not on intelligence would have. it is important to understand why it is a useful and important tool. back to the point about declassification, some of the apprehension can relate to other bad actors reverse engineering how they can
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avoid detection if they know what patterns are used to identify and for the other events. it is not just merely because they want to keep them private. there are legitimate, future risks that can result in how this was triangulated. is that correct? >> that is exactly right. the ability to understand how they collect this information. >> and i want to go back to the last question because in your opening comments he talked about the irony of requiring a court order before you get access to the data actually requiring more information be captured before you move forward. can you talk about that? it also speaks to the elongation of the process of the investigation. while the courts can move
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reasonably quickly, there is time associated with gathering that information. >> sure, and then i will handed off. in general investigations progress from using less intrusive means to more intrusive means. you may just have a tip and want to figure out whether to pursue the tip or not do anything. you will start by doing a query of databases. then as as the investigation proceeds you may develop enough information to set aside a probable cause requirement for research staff, but at the initial stages you typically do not have much information which is why you do it query. to require the government to compile more information in order to start with a less intrusive means does not make sense to me.
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>> thank you, senator. i just want to address the speed issue. mr. olson and i have been through aa number of different threat investigations. there's an indication of a threat, and at that point yacht the intelligence community operators to get access immediately to every area that there might be relevant information, and while the court acts quickly, the process of having to put together that information not only being more intrusive, it just takes time. that can be absolutely critical in a hot threat investigation. >> would you mind if i speak to the privacy issue. i would hope this committee would take note of the fact that the privacy committee unanimously behind the requirement because it is our considered opinion that this is far more protective of privacy to require a warrant than to allow the
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data being carried. >> are you aware of examples to this point where it will be likely that the warrant would be denied? i am trying to find -- and here is the reason i am concerned. we are in an environment where the number and severity of threats are at an all-time high, and so time is not only a consideration, but resources. so i am trying to figure out, i understand your concern and them sympathetic, but the question is, have we seen this necessarily produce a systemic risk that has resulted in legitimate violations of someone's 4th amendment rights? >> the search itself is the violation. another was no evidence of abuse.
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backdoor searches are the abuse. it is a warrantless search of information gathered based on the representation that the government was not targeting americans. >> this is a search of data that the government is already in possession of. >> required by law and the 4th amendment to minimize the use and access to us persons information. >> and i had a question for you in my remaining time. in your opening comments, did i understand you to say that it did not necessarily recommend related action but there were additional changes? with that suggests than that the acts are sufficient? >> the board only recommended administrative changes. the government has been responsive. one of the other board members did dissent and
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recommend the court approval. on the classification front, one of the things the board experienced in repairing the purport is we found facts that we thought could be made public without harming national security and at a positive dialogue, the results of which, a hundred fax in our report previously classified intelligence committee felt could be declassified. >> thank you. >> may i know which report is it back is that the recommendation assessment report you are thinking of? >> it is an almost 200 page report, and we were able to have greater transparency. >> it would be valuable to add documents to the record. >> without objection.
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>> i am ranking. i would yield. >> thank you, chairman. first, welcome to the committee. we are on adverse sides of a considerable number of issues during the bush administration. he was always an entirely honest and honorable broker and we worked well together, and it is nice to see you back before the committee. you mentioned the comparison between incidental collection under 4th amendment searches and under the 702 program. of course, if you go back to the earliest days of the warrant requirement, when someone had aa search warrant and was able to go into somebody's desk and search their papers with that warrant, the papers
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were not just their papers. they are papers were notes that they made about letters out and also letters and, and so there was incidental collection of people who were not the subject of the search warrant from the earliest days of the republic. when we got into wiretapping it became a little more complicated, but once again you cannot listen into the conversations of a mobster without listening into the other side of that conversation. so wiretaps over and over again engaged in incidental communication. so there is nothing new about incidental collection of people who are not the subject of the investigation in question. it strikes me that what is new is the creation of a database to preserve the incidental collection and
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the question of minimization minimization did not apply back in the search warrant days of the there was an obliging the return. in the wiretap era, you are required to switch off and not listening check back in. and could you just elaborate more on how modern 4th amendment search techniques and storage of the data takes place in the domestic context under the 4th amendment search requirement and compare the minimization and the database collection
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to what we see with the 702 program. >> thank you, sen., for those kind remarks, and i share that sentiment completely. it was wascompletely. it was a pleasure to work with you over the years. your question is a good one. let me break it down into two different questions. first, under 702 there is the need to pool data that might be relevant for the very reason we discussed earlier. when you have an indicator you want to be able to access that information at once. collected from one particular target. it is pulled in a way that often title iii is not. a title iii wiretap collected by the fbi in one place, maybe not pulled
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title iii conversations elsewhere. but as a legal matter they are indistinguishable in the following way. you're right, there is minimization. if i am the target the government is duly authorized to collect on me command i am talking to the pizza delivery guy, the agent is supposed to turn it off and turned back in some interval of time later to see if i am than talking to my terrorist confederate or drug dealing confederate. but the reality is, if they are listening and i am talking to somebody else that information is incidentally collecting, it is collected, and regardless of whether that person is involved or not, and that person's privacy is not been reviewed by judge the judge issued the warrant and authorize the collection against me.me. that is the same thing that is happening in 702.
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the counterparty has just the same rights to resist the government's ability as the guy in my situation. puts it in a database and enables it to be searched, should that be seen as a secondary event that suggests the requirement for some gatekeeper before they have full access? my time is expired. i cannot continue the conversation further, but thank you for the hearing. >> thank you very much, mr. chairman. thank you for your good work in this area and allowing me to go before him. thank you for all you have done, and i, and i have had experience with this before. i managed a prosecutor's
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office with about 400 people and400 people and have been personally in the room for these wiretaps. but as many of you noted in your testimony, is critical that our laws reflect his balance between national security interest in privacy and civil liberties. what i wanted to ask you about was that bill itself as we look at the reauthorization ahead and what we should be doing but we consider changes to law. as currently constituted, do you believe it strikes the appropriate balance between the protection of national security and civil liberties and what changes would you like to see? >> thank you, senator. it does that by providing for ample oversight which is
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meaningful to all three branches, and also i think you see that balance being played out in terms of the tool procedures implemented by intelligence review by the court and also the intelligence judiciary committee's. resulted in the private civil liberties oversight board with the finding of no instance of intentional misuse of authority. >> thank you. >> i believe it should be reauthorized. part of the effort, the executive branch in 2008 behind the practice of the law and can attest to the way in which it was calibrated at the time. it's also not been static, the implementation of law has been dynamic and changed over the years and in particular what i think the landmark report which did an
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intensive and thorough investigation found that the law was not only valuable the constitutional and legal and made recommendations as implemented. >> the concern was that there was too much data to analyze. >> i did read that part. with respect i do not think that there is merit. i can tell you have more data of this type is better than less. the government has the ability to search it command we talked about that. a better chance of finding those needles that we are looking for warrior trying to stop a terrorist attack. they can be a concern in other contexts. i don't think that it is a persuasive argument. >> i believe section 702
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goes further than it needs to in order to accomplish and i would point out some of the cases that have been made public relating to section 702 successes are cases in which the surveillance, section 702 surveillance was of a known or suspected terrorist or someone known or suspected to have ties to terrorism. while there is evidence, it there is no support for the idea. >> ii don't want to -- i'd just -- >> i'm sorry. >> the only way to secure the constitutional validity is to have an individual order when the government collects communication between a foreign targeta foreign target an american, but there are other steps that could be taken that include closing the backdoor search loophole, narrowing the definition of foreign intelligence, narrowing the pull of people who can be
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targeted and ensuring that notice is given any time section 702 evidence is used in court or evidence authorized is used. >> would you like to add anything? >> the government should estimate the number of american communications intercepted. second, tighten the upstream collection process and require court approval for queries under 702. there has been no warrant issued for these collections. on the attention shifts to communication with any of 90 plus thousand other people, i think it becomes a moment when the 4th amendment will require court approval. >> thank you. last but not least, misbranded.
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>> i do not think changes to the statute are necessary. the people out in our in-depth review did not recommend legislative changes.changes. we did recommend a number of changes to the way that the program operates that can be implemented by the administration or fires a court, and they have been implemented. continuing to work on others, so this would be the appropriate way to handle it. >> senator,. >> thank you, mr. chairman. welcome to this very important and helpful panel, complex topic and you given some insightful and intelligence responses to difficult questions various courtrooms on a strong believer ensuring a court is
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the best possible information to get decisions. as you know, cases presenting particularly not legal issues. i am pleased a version was incorporated in the usa freedom act. enabling the court was among the recommendations, which i thank you. it has been established accordingly, and on several occasions the court has appointed one to serve as amicus. so let me begin by asking mr. medina, but this is a question for the entire panel, could you discuss why
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it was initially recommended that there was this change and how you assess the process of implementation and then also whether a technical expert will be shortly appointed to fulfill the role that was envisioned by the statute. >> the origin of the recommendation. we invited a former judge, and he said how frustrating it was to only hear one side in hisin his normal civil or criminal docket he hears one side make an argument, it sounds persuasive. the other side makes an argument, that sounds convincing two. when he was on the 5th, he only heard one side which led the boards ultimately recommend that there be another side.
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programmatic approvals of 215 or 702. we have just begun to see how the program is operating. able to make an argument, and having technical advice as well because these programs have important technological implications. brought 1st technology scholar to advise us, and winning the other side of law and technology is important. >> is a member of the p cloud as well the mistrust because it was viewed been
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in the court process and no it is not an accurate description, but the public viewed it that way. it is important to have some visibility and for the public to have more confidence, and so the public gets asked that purpose. they have been useful and have helped. >> but the health of the court has not just been an appearance. it is enhancing the perception of actual scrutiny and the value that you describe to judges who hear one side and then the other, not just entertainment value but it is elucidate questions, permits the contrast and conflict of ideas and out of that contention.
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better conclusion for the court. >> there is an understanding and the public that was. [speaking in native tongue] your perception. i agree it will refund the courts thinking. >> i wanted 1st to thank you for your leadership. it was important. i do not see the fisa court as a rubberstamp at all. but it has seen its job as getting to yes which is not the role of the judiciary. part of that was that when there wasn't another party there the court wascourt was not in the role of being a neutral adjudicator between
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two sides and therefore the court effectively became the other side which was an uncomfortable role for the court and made them more inclined to try to move toward yes. i am hopeful that having an amicus there will ultimately help the court to take more of the stance of a neutral arbiter. >> my time is expired. this isexpired. this is an important topic in an evolving question. for most of my career i was a government lawyer. i want the court to get the yes. at the same time, i welcomed actually a strong adversarial process because it made the case better, reduce the likelihood of a successful appeal, and we are dealing in a different context for appeals are
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unlikely, but the result is better and as all of you know, judges worst nightmare is the defendant representing himself. not going to go into these reasons, but your hard work in a difficult area that is about balancing our national values, security and enduring concerns about privacy. let me try to cover ground
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is very able panel and members. my understanding is the government does not obtain a warrant before querying a database for information about americans despite and expressed understanding for members who were present when section 702 was adopted, but it was not intended to allow this type of warrantless search. can any of you proffer an estimate of how many communications with us persons have been collected that are 702? i understand it is difficult,difficult, but if you can give us an estimate, i welcome that. do you think we should require queries to be tracked in order to obtain information about how often the section 702 database is used in the search for information about american citizens. >> a challenge and quantifying how many
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americans communications are collected. our board recommended some, and recently they will be trying to come up with estimates. it is useful to require that there be a report annually to the congress on the number of americans communications that are instantly collected in the methodology used to do that. that is an important part of how the program is operating. >> to answer what david said, the report recommended that the government published more statistics about the impact, and i think there is a good story here about being pushed to do that. the administration recently released numbers on to measures, and it is working hard to come up with a reliable estimate.
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the staff is in constant communication with the administration, and they really are working hard to get to the position of getting congress and the public more and reliable information. >> getting an estimate of the number of communications is important. i have heard the intelligence community is working on it, but this is a request that has been pending for years. move the process along. with respect to queries, we do not have numbers of how many times the queries have been run. the fbi is by far, from the boards report, the most active and frequent. and it is important to get that information. the fbi would have trouble figuring out who is a us person. the nsa does it, the cia doesn't.
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the fbi should be able to, and one quick point, this incidental collection idea, there is an important distinction between the cases that have upheld the incidental collection of people who are in communication with the target all we arewe're seeing with section 702, and in those cases under title three there was not only strict procedures but a warrant from the beginning to target the original suspects,suspects, and the courts have emphasized the importance of the warrant at the front end because that provides precarious protection to people in contact with the target and narrows the pool of people that can be collected on. >> thank you for that edition and let me ask two more questions if i might 1st. given section 702 was initially adopted for foreign intelligence and national security purposes, do you have any concerns about whether it is appropriate for
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communications to be used for domestic purposes? do you think that is a distinction that can be neatly made? and the my last question, what standard does doj apply to determine whether it is obligated to present criminal defendants with notice and how does it ensure compliance to provide section 702 derived exculpatory information. if you. if you answered is a sequence i'll be out of time. >> the distinction is not so much between foreign and domestic, but in terms of the nature of the case and the target. if the target is foreign, there can be warrantless collection. if the government is trying to build a case against an american they go to the court and get an individualized order. if it is a criminal case they go to a magistrate. that distinction is easy to make.
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>> thank you for the question. the problem is we were involved with bringing down the wall and congress did that. the wall was based fundamentally on the distinction between foreign intelligence work in criminal work which was a distinction that created this barrier that impaired information sharing. that is the last thing we want to do. we have seen the benefit of having serious information sharing. we don't want to bring us back to the old days. >> thank you. >> did not look at the question you raised.
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>> i'm sorry. >> notification of criminal defendants. >> that appears to be honored in the breach. andin about three years ago there was a change in policy. definitely concern the fbi is reporting -- avoiding the requirements. very easy to clear this up. the governments been fighting tooth and nail.
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>> thank you. >> thank you, mr. chairman. i understood. >> i like to focus on the question of transparency in our surveillance programs. bicameral, bipartisan bill. collection intelligence that was not necessary and the public said it did not support. i was a proud cosponsor and proud to develop the bills
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transparency provisions with my friend senator dean heller of nevada. we recognize when the public lacks the scope of the government's surveillance program there is no way of knowing, striking the right balance, safeguarding our national security without trampling on our citizens fundamental private rights, privacy rights, but the public cannot know if we succeed in striking the balance if it'll have the most basic information about major surveillance programs which is why my focus has been on transparency and is why the senator and i crafted the provisions in the usa freedom you now require the government to issue details, annual reports of the surveillance authority issue,, importantly the government now has to provide the public with estimates of how
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many people they have had their information collected for certain authorities, record of the communications of foreigners abroad they have to say how many times it has run searches for americans. when the american people have access to that kind of information they can better judge the government surveillance programs for themselves which is not just my view that an opinion shared by bob with, general counsel for the office of director of national intelligence, long addressing brookings last year he said, the intelligence community recognizes that with secretly to for secrecy inevitably come both suspicion and the possibility for piece. they believe they would have been less public outcry if we have been more transparent beforehand. it seems to me that the same
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need for transparency applies with equal force we are talking about the number of americans whose phone calls or e-mails of an collected, perhaps incidentally under fisa section 702. members have asked for the numbers. civil society and liberties groups of asked, and just last month 14 members of the house judiciary committee asked for an estimate of the number of americans affected but thus far no one has received a satisfying answer. is it possible for the government to provide an exact count of how many united states persons have been swept up in section 702 surveillance and if not the exact count comeau what about an estimate? >> it would be difficult to provide an exact count with any accuracy, and i do not
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think anyone has asked for that. they asked for an estimate. that should be possible. with apossible. with a couple programs it should be straightforward. with prism it is trickier, but that is why there is an offer to work with the intelligence community to try to find a privacy protected way of generating estimates. it is vital because i hear public statements over and over that this program is targeted of foreigners and that the collection is incidental. these are terms of art with specific legal meanings, but most americans are not lawyers. they willwere reasonably assume americans communications, not many are collected. having this estimate is important to pierce through the legalese and give americans a truer sense of what the program entails
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which they need. >> this was brought up in terms of confidence. to what extent is that the issue and to what extent is the issue actually, when senator blumenthal was picking at the operational and transparency, the operation of this is more consistent. >> i think that it is both of those. the american public to have confidence, especially when it turns his focus to american communications, knowing how many are being collected, also it would eliminate the question of querying that information. it is a large amount of information come over five years that is collected. i would also add, a report
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has been helpful through the privacy shield negotiation with it was a misunderstanding of 702 and did not appreciate that it was a targeted program, not a boat collection program. there are many people with valuable information, and that was helpful to ultimately resolve the appropriations with the european union, to understand the program, program, legal structure, oversight, and there is a targeting process. >> my time is certainly up. you might want to answer that. >> agree with everything i said. >> that was dispensed with quickly. >> i have one question, and the senator has some. i'm going to go i want to
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thank all the participating. increased accountability. the oversight board recommendations was to provide additional transparency surrounding the frequency of incidental collection of us persons, communications provide us
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with more detail regarding the status of implementation of the executive. we have had an ongoing dialogue with the administration about how to get more information on the public about this. the government does not automatically know the nationality of these people
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from the target communicates. it would be intrusive to investigate that. we did think that there were some aspects of the program that could be measured. the number of telephone communications in which one caller is located in the us, internet communications collected upstream to a number of communications concerning persons that the nsa possibly identifies. queries are performed that use us personal identifiers and the number of instances. those are ones that the government has now published information on. the dni issue its transparency report, which it was required to do
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whereas previously it was provided only to congress, now it is public. we are in an ongoing dialogue about how it can release information responsive to our other three and they are working hard to do that, in contact with the nsa last week about that and there coming to talk to our staff. we will continue to press. >> senator feinstein. >> thank you very much, mr. chairman. because of some of the discussion i just wanted to bring to everyone's attention to documents. the 1st is a joint unclassified statement of general counsel for the office of the director of national intelligence. stuart evans, deputy assistant ag, and assistant director for counterterrorism division of the fbi. on page number three they
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discussed targeting procedures. and i would just like to read a short part, to ensure compliance with these provisions, and they set up a number of steps in the preceding paragraph, section 702 requires targeting procedures, minimization procedures, and acquisition guidelines. these are designed to ensure the government targets non-us persons outside the united states and also that it does not intentionally acquire domestic communications. moreover, the targeting procedures ensure that targeting a foreign persons is not an discriminate but instead targeted at non-us persons outside the united states who are expected to
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receive more likely to communicate foreign intelligence communication. a goes on to say because congress understood when it passed the faa that a targeted non-us person may communicate or discuss information concerning a us person. congress also required that all collection be governed by ms. enough toand -- minimization procedures that restrict how the intelligence committee treats any person, and to the best of my knowledge the fisa court has to review minimization procedures annually and approve them along with this recertification of the programming. this is page number three. it is interesting. the 2nd thing i want to cite is the director of national intelligence is april 30 letter within addenda that is a response to the peacock recommendations, and i want to read that because there
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are interesting 1st time i have seen these figures. and i am reading from page six. nsa minimization procedures expressly prohibit dissemination of information about us persons in any report. unless that information is necessary to understand foreign intelligence information or assess importance, contain evidence of a crime or indicated threat of death or serious bodily injury. even if one of these conditions applies nsa will often mask the information and we will under any circumstances include no more than the minimum amount of us personal information necessary to understand the foreign intelligence or to describe the common thread. in certain instances however
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nsa makes a determination prior to releasing its original report that the us persons identity is appropriate to disseminate in the 1st instance 4,290 faa section 702 intelligence reports that included us personal information. of those 4,000 290 reports the us personal information was mass and 3,180 reports of those it seems to me that
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is responsive to the concern. is it ms. galena goal line? >> deleting. >> thank you. >> it is a tricky one. >> would anyone like to comment on that? i am looking at you. >> yes. >> i would appreciate a response. >> the board has not addressed it. it was exactly what was being sought as far as greater transparency and certainly we are aware a lot of times that information is masked and ultimately unmasked. if i could comment on the 1st document, you said the focus of this program is on not americans. there's a lot of misconception about what this program is about command some thought you
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only had to be 51 percent sure it was a non-american in order to conduct surveillance which would have meant americans surveillance was intentionally captured. .. > >> i would like you to know that i was on this committee when the wall was discussed. whatever year it was. and there was tremendous concern about preventing the
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kind of communication that was necessary. i made the admission resulted in the reduction of the wall and to the state think it's a very important change that was made to enable information to be constituted. i think our concern and because i see the intelligence, you get a sense there is conspiracy led the fbi is investigating ongoing cases of the ongoing number of 1,000 investigations going on in this country so we should let down our guard because to do so is to invite disaster -- illegally from
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the time we start looking at this with the response to it that there river is a renewed transparency that the seventh two programs are important to explode and one dash expose the country so to do what we can with the masking than the unmasking everybody has the numbers so i just want to make those comments and if anybody has a comment.
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>> our position to the back door searches. >> gave backdoor searches when the fbi or any other agency targets the u.s. purchased - - person for the data collected under seven '02. >> regardless? >> the -- they get the raw data so that's what i've happy to call it to address this is not trying to rebuild above wall a thick of a cross threaded permission should share that as agencies work together but the fourth amendment cannot tolerate government collecting communication without a warrant with the
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intent to mind that income cases. >> that is where you and i differ. i don't believe it is conducted unlawfully and if you have a case for the data is collected i would like to see it. >> unfortunately it is not that simple because they're both parts of the same scheme and what makes the collection at the front end lawful to collectors out a war it is in part the restrictions on how the data can be used on the back and. >> have somebody responded to that. >> you are onto something very important because there are extensive rules in protections around the u.s. pursing queries so the report went to extensive
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detail under what circumstances they may conduct a query as a backdoor search and a half to readers of affirmation and they need justification and there is improvements for that and extensive oversight after the fact and then with respect to the fbi it does not track u.s. personnel query separately but they are documented. where the protection unscom it is any use of information with the extremely the radical he bent they are responsive to a criminal investigation it could not be viewed unless they using the information and the attorney general house to approve any use of that
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information in this someones communication and is used against them and a criminal proceeding we know that happens because there was a reported case in colorado where defendant with a motion to suppress the notified him and had been collected. solicited is now happening. >> cut to make a broader point that targeting procedures they were identified of the transparency figures and most of the discussion today with the success of section 7a to represent. this was the careful balance in 2008 and since and
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enhance touche tweak that balancing careful ways of awaited is unprecedented with the nature of eating to those changes so to do reject the notion of the back door source it is a misnomer to call them lawfully collected every judge who has looked at that has upheld that with a chance to review that is the lot of competitive use so this is a very good news story at the end of the day. and there are a number of opinions from some of the colleagues to be lawful and well-balanced.
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i hate to say a but very necessary. but is only intelligence lawfully collected to prevent another attack and i hope there is more declassified examples and then to be faced with the reauthorization of. common to ask your questions >> and to work with the intelligence that has been so important that i will adjourn but what is interesting to think about this line of questioning
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that we have had some very important to information from 702 for did from the paris attacks so this is absolutely crucial. and by and large that the intelligence community has acted in good faith. but a the question here is is that goes back to the favors the fear of what happens when the government isn't acting in good faith from the intelligence community has.
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so the use the information from 702 can be misused has been mentioned parallel construction and again, as the framers wrote the constitution because they didn't like the british at the time. everybody knows that? right? so they were worried about some people running the executive branch of a government. some of that is the reason
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we look at how the 702 information is collected for people who are not the targets were americans and what the rules are. i saw you reach for the button. [laughter] >> there are situations in which having oversight and rules and policies of procedures have cases that our vital. when you talk about the basic requirement to get a warrant you cannot substitute procedures into'' justice roberts the founders
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did not fight a revolution to pave the right to government agency protocol. i will leave you with that thought. >> ayatollah late dive volunteered to do this. we will keep the record open seven days and. we are richer and -- richard [inaudible conversations]
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[inaudible conversations] [inaudible conversations]
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[inaudible conversations] >> tomorrow, representative david jolly and rick nolan talk about the amount of time that members of congress put into fund raising and propose limits on that activity. later in the day, the israeli ambassador to the u.s. speaks at a leadership summit in
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washington dc hosted by the anti-defamation league. that is tonight at 11:45 on c-span2. up next on c-span, from "washington journal" a look at recent events in north korea and what they suggest about the leader of the ruling party. that is followed by a discussion of concussions in youth's warts. and then, adam hochschild on "q&a." director of the wilson center history and public policy program and an expert on north korea. thank you for being with us this morning. the party congress has ended. the first one since 1980. what was the significance of this session? what does it mean for the current leader?

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