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tv   Senate Judiciary Committee to Hold Hearing on Foreign Intelligence...  CSPAN  May 17, 2016 1:34am-3:47am EDT

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as a result of this process that was ignited by citizens united and that exacerbated the need for the stop act. jolly: i will comment maybe it isly, because i am a junior member of congress, i do not know if i've seen the heavy influence in campaigns contribution setting an agenda. i can tell you what you feel at the level of newer ventures is a bit of the influence. you see it with the scorecard community. you do see that restrict an agenda often, because of political consequences going against a scorecard group is a risk that perhaps the caucus or leadership is not willing to take. i actually think you see a lot of the slowdown for two reasons.
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why have we not done border security or immigration reform? why don't we have obamacare replacement? why haven't we addressed the congressional position on the president's foreign policy to a ums? two reasons. we are working full-time here. that is the whole point of the stop act. how much time are we put different -- half of the time is spent raising money. how much time are we devoting to the issues of the country? in the face of growing crisis, you have got a part-time congress. the second, equally as damning, oftentimes congress makes a political calculation that it is safer not to touch a difficult issue. to simply go home in november and say, we promise we will do it next year. i would much rather do border security and immigration reform bill, and stand in election in november to justify what is and is not in it and answering heart russians of the held accountable about an immigration reform package and stand in november and try to explain why congress did not do anything on it. i think it is because the
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political calculation is that it is safer not to touch it. that's wrong. let's have a debate over border security and immigration reform and see where that leads us. i would be proud to stand in november and justify how it turns out. >> i want to follow up on something you mentioned a few minutes ago. you mentioned donald trump. does not your legislation help self-funded candidates, millionaires, billionaires, who do not have to ask for money, they can just write themselves a check? rep. jolly: i think it reflects the reality of where we are already. with citizens united and corporate money, and union money, this is where we are already. this is where we can get to a better bipartisan campaign finance package and where we are now. does it help them? yes, but they already have an unfair advantage. you talk about super pac's and recognize, if we are not already in a cycle where it means very
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little, we will get there. look at the presidential race and look at the amount of money raised for bush's super pac as opposed to his campaign committee. that's in most races. you have a congressional candidate in competitive races where super pac out races by three out of 10. if you take the contrast between a candidate's committee and the amount of money that can be raised by super pac's or what is self funders can do. >> it's already out of whack, would this not make it worse? what is the point? rep. jolly: this is why i say congressional reform. truly. the great political scandal of our time right now is the fact that you have members of congress come to town for 3.5 days a week and spend more time raising money than doing their job. that is why i continue to call it a congressional reform. this is a scandal. this is a first-rate scandal.
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a bipartisan shakedown of the american people for members of -- from members of congress sitting in call suites in washington, d.c., when your constituents think you are working on behalf of the market people. the other night at 2:00 or 3:00 in the morning, i am flipping channels. i came across "mr. smith goes to washington." i had not seen that in 30 years. i had not seen it as a remember of congress. it is the scene where he is trying to write legislation about creating a boys camp. he has all the idealism in the world and that is the point. he comes up against the longtime assistant who has been there. he starts walking him through all the inefficiencies. you have an idea. now what do you do? you go to the committee, then the chairman will do this, then the senate committee. all the inefficiencies. imagine if in "mr. smith goes to washington," if the assistant
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had said, you do not have time to write that legislation. you have to spend 30 hours a week across the street, asking people for money. you know what happens in that scene? he introduced legislation that was appealing to the american people. if you remember, he started getting envelopes from boys with pennies and nickels and dies -- dimes, because it showed good policies are what the american people want. it guess the response, it gets members of congress be elected, if you are doing right by the people. thomas: i'm glad you mentioned the movie. my favorite part is when they are at the national press club. [laughter] before i ask the last question, i would like to mention upcoming events. on tuesday, may 24, he does -- congressman andre carson ankita ellington, members of hundreds, who are muslim, will be here to discuss islamophobia and the presidential election.
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may 26, the center for disease control be here to discuss the zika virus. june 13, we will have the head of the girl scouts of america here. i hope she brings cookies. my last question, tell me about your current relationship with the dccc and the nrcc? rep. nolan: i have a wonderfully good relationship with the dccc. in one respect, members of the congress are victims of citizens united, and the massive infusion of money into our campaigns and political process. if you intend to run for the election, it you believe in the stop act, if you believe in immigration reform, if you believe in any of the ideas that have been advanced for the resolution of problems we face as a nation, you had better have enough money to defend yourself
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and get your message out there. without money, you do not exist. we have seen the polling. if one candidate has got the money and the message, and you are sitting there with nothing, you lose. you don't necessarily have to have more, but you do have to have enough. this country never operated that way before. i had an opportunity to see how it operated many years ago. those of us who studied our history and know our history, it did not work that way throughout most of our country's history. we have got to restore democracy. it is about congressional reform and campaign reform and bringing together a number of things that will get us back to a time when representatives went to washington and they were not intimidated by money.
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they were not driven by money. they were not compelled to raise lots of money. they came here to fix things and get things done under open rules and an open process. whereby, that is why i support a system of small donations and public financing as well, so that you do have a level playing field out there. in many respects, any one of these things by itself is nowhere near as good as a package of half a dozen things to bring it all together. the public financing, the reversal of citizens united, the stop act, online voter registration, independent reapportionment. pull all that together and we can have a great renaissance in democracy in this country and restore it to the leadership role it has had in the world.
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that is getting away from us. the way change occurs is by people stepping up, like mr. jolly has here and i'm glad to be a part of it as well, by calling out honestly and with integrity what is wrong and advancing some ideas to fix it. that is what the stop act is all about and why i am glad to be a part of it. rep. jolly: i have acknowledged this is a hard issue for many people to talk about. the stop act, there are hundreds of telemarketers in this town being asked to raise money for their parties. that is the reality. i'm not criticizing my colleagues, or the nrcc or dccc. let them raise as much money they want to. but i think we should remove members of congress from that process.
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we are one party and this is a difficult issue to talk about. i understand and support what the nrcc is doing, i just think members of congress should be removed from it. i worked for 13 years on staff and largely in my professional life, about 20 years, my predecessor, a wonderfully legislator and man by the name of bill young. he came in in 1970. i was having dinner with his first chief of staff and he said, when we first got elected in 1970, the nrcc raise money for us, give us money. now we are in a world where you get elected as a new member of congress and you are given a bill. it is one of the worst kept secrets. people know that members of congress are told, here is how much you have to raise for the party based on your years of service or committee assignments.
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i got a $400,000 bill this year and i am not paying it. does that put me on the outs a little bit? sure. does that mean we cannot find a way to continue to work together and support the nrcc? we are one party. this is a hard conversation we are having. i want to thank rick and the national press club, each one of you for taking the interest on this. we need the help of the american people to start a movement out of this. we need to pass the stop act. thank you very much. thomas: thank you. that is all we have. [chatter]
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[chatter] >> we had an election with $30
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million or $14 million spent. you had a lot of methods on tv where you didn't know who was coutinting. what about if we had legislation that said any outside group -- a t least the voters see some accountability. that creates unlimited so that does not work either. i doubt there might be something there, but i think it will make it worse. i don't think it is partisan. >> you were at the top. you made this such a centerpiece of the senate campaign. i'm assuming you are raising money as well. rep. jolly: there are unsolicited contributions coming in. we still have a campaign with a
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finance director responsible for raising the resources. i seeing the consequences? yeah. we talked about a lot of issues. i think we should have border security. i think we should deal with tax reform. is the stop act resonating louder than any other issue? yes. i will keep talking about it. i want to get this act. i am here for six months, over six years. let's push on the stop act. is there political support behind it, sure. >> how much have you raised? a significant amount? rep. jolly: i don't know. i know online -- you would have to look. i think online after 60 minutes $15,000, maybe. , but we get letters. a woman sent in $1000 and another sent $1000. another woman sent five dollars. >> you said the rnc gave you a bill for $400,000.
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rep. jolly: you are given dues. this has been looked at several times on both sides. you are given dues, based on the number of years you have in on committee assignments. you are expected to meet those. the first session i was in was only six months or so. it was about $80,000. i think we may have met that. i think we came close. the next full term was $400,000. as a senate candidate, it is easy to say i'm not going to do it, but how can you ask somebody, if i was in district 13, to raise $2 million, to then go back to the people and say i need another $400,000? >> and of course, the nrc disputed that. there was a memo calling you a liar.
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rep. jolly: [laughter] i think the lie was that the meeting never took place. that was the last. integrity hit. i am not trying to judge colleagues. they went straight at my integrity. i went to microsoft outlook, printed the meeting notes from the calendar, where the request comes from the leadership. i said, if you want to ramp it up, we will. i don't want to. hopefully, cooler heads will prevail. i would be surprised if it stays at $400,000. both parties still have a system where you have to pay your dues to the party. ask anybody in town who contributes to local parties.
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they have to contribute in the name of a certain member and that is the way you meet goals. >> a quick question. you had a lot to say about donald trump and bernie sanders. what is your response to donald trump saying, it is all my money, and bernie talking about the system is corrupt? have you spoken to them or anyone? rep. jolly: i obviously don't have inroads with donald trump. i think we tried a little social media solicitation to see it we can get his campaign interested. we had staff conversations. i want to know where donald trump is on this issue. not to shine a light on him, but because we can get it done. if people like donald trump and bernie sanders talk about this -- >> we can get donald trump to do it through twitter.
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rep. jolly: if donald trump tweeted support of the stop act, we would get it passed. put pressure on the congress. i need the help of everyone. that includes the retiree in iowa. i need his help. thank you. [chatter]
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>> you had to divulge one hours
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forne days work to pay education. they say it takes 17 hour days to pay for education. 17 hours a day? that is not going to work. when did so many of us get there? [indiscernible] rep. nolan: it's a journey. you have to pay it back. the next generation will have the same benefits we had, maybe make them a little better. that's what drives me. >> there has been a lot of talk on the republican side. merit is there to it?
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unlimited contributions. rep. nolan: i think the limits that are there, $2700 for the primary, $2700 for the general, those are reasonable. in the absence of a small donor public financing system. but that is not what released all the money. that was citizens united. >> their people arguing that citizens united was amplifying the things that the candidates themselves want. they say that the parties are more accountable than the super pac groups. rep. nolan: there might be some truth to that. let's stand by the podium.
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now you can say what you really want to say. [laughter] >> all right. perfect. >> good luck to you. >> thank you. >> the u.s. house picks up the 2017 defense apartment programs and policy bills starting tuesday. bill passed out of committee. legislative business at the house begins at noon eastern on
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c-span. fall, he was airlines will provide service from the united states to cuba for the first time in five decades. tuesday, the house homeland security subcommittee on transportation security examines potential risks involved in resuming air travel to cuba. you can see that hearing live at 2 p.m. eastern on c-span3. >> congratulations to the class of 2016. today is your day of celebration and you have earned it. >> the voices crying for peace and light because your choices will make all the difference to you and to all of us. >> do not be afraid to take on news or a new job or a issue that really stretches your boundaries. your summer abroad on
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real ships rather than internships. >> watch commencement speeches to the class of 2016 this by business leaders, politicians and white house officials on c-span. the foreign intelligence surveillance act is set for reauthorization in 2017. next, the senate judiciary committee hears from intelligence officials from the bush and obama administrations. they also offer their recommendations. this hearing is two hours and 10 minutes.
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>> i will introduce the witnesses first and then make my opening statement. is on his way and i would like to have him make his opening statement before we receive the testimony from the witnesses. our first witness is kenneth partner -- thank you. chair of thees as firm's white-collar defense and investigative group. 19ore that, he worked for
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years at the department of justice, including serving as u.s. attorney for d.c. and the first assistant attorney general for national security. he concluded his government service in 2008 serving as homeland security advisor to george w. in that capacity, he coordinated the nations counterterrorism homeland security infrastructure protection and disaster response and recovery efforts. the second witness matthew olson. he served as director of terterrorismn center for president obama. after that, he served as
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executive director of the guantanamo task force and spent more than 18 years at the department of justice, including serving as a deputy assistant attorney general overseeing national security division. he is currently a lecturer at harvard law school, national security law and practice, undergraduate degree from the university of virginia and law degree from harvard. elizabethitness skotene, codirects the brendan center for justice, liberty and national security program. before that, she served as innsel for senator feinberg the federal program branches civil division. from yale. law degree next witness is david medine,
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chairman of the privacy and civil liberties oversight board. attorneyat, he was an fellow for security and exchange commission. special counsel at consumer finance protection bureau from 2002 to 2012. he practiced law at a firm here in washington and from 1992 to the year 2000 served as associate director for financial practices at the ftc. undergraduate degree from hamshire college and a law degree from the university of chicago. our final witness, rachel brand, has served as a member of the oversight board since 2012. has served as vice president, chief counsel for regulatory litigation at the u.s. chamber of litigation center and practiced law in two firms here. she has served as assistant attorney general for legal
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policy at the department of justice and associate counsel in the office of white house counsel. ms. rbanbrand has her degree frm the university of minnesota and her law degree from harvard. most importantly, she has been an intern at my office and is from iowa. you ought to clap for that. [laughter] i'm going to make a statement now and hopefully senator leahy will be here and we will have the witnesses. i just introduced them to use of time. almost exactly six months ago, ly francen's oldest al suffered the deadliest attack on its soil since world war ii. in a series of coordinated suicide bombings, mass shootings and hostage taking, isis killed 130 people and injured 368.
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the president of france referred to it as an act of war. a month or so later in december, united states sustained the most deadly terrorist attack on our soil since september 11, 2001 in san bernardino. a couple inspired by isis opened fire on an office holiday party, killing 14 and injuring 22 more. isis months after that, struck again in brussels, the home of nato's headquarters, on march 22. they launched a series of coordinated bombings at an airport and train station that killed 32 and injured 300. these attacks underscore that one of our core response abilities of our government is to ensure that those who protect us every day, including the intelligence community, have the tools to keep us safe.
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these tools must adapt to both the changing technological landscape and the evolving security threats that we face. at the same time, the rights and liberties enshrined in our constitution are constant and the duty of this committee to be vigilant in ensuring that they endure. section 702 of the amendment act which provides the government the authority to collect the electronic communications of foreigners outside the united states with a compelled assistance of american companies sits at the intersection of these. in 2008, after much debate and discussion, this law was passed by congress and signed by president bush.
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from all accounts, it is proven to be highly valuable in protecting the united states and our allies. the privacy and civil liberties oversight board, the foreign intelligence surveillance court and many other federal courts 702e found section constitutional and consistent with the fourth amended. concerns persist for some about its effect on our civil liberties. most of these concerns relate to the treatment of communication collected when it turns out it targeted foreigners who was in contact with somebody inside the united states. these are also situations where the program can be highly valuable. by letting our government no if a foreign terrorist plot might reach our shores.
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this committee's oversight of this law should continue to be robust and although the amendments does not require congress to reauthorize it until the end of 2017, i would like to begin the conversation about it well and events of that reauthorization. that is why i requested the committee receive a classified briefing from the obama administration on section 702 back in march of this year. that is why i'm so glad to have such a -- distinguished panel here today to talk about those issues. it is why unsure we will continue this public dialogue with the administration and others in the future. as i mentioned, section 702 allows for the targeting of foreigners located overseas for surveillance. the statute specifically
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prohibits the targeting of anyone within the united states or any u.s. person wherever that person is located around the world. it also prohibits what is found reverse targeting, that is targeting someone outside the country for the purpose of targeting a specific person who is located inside. under the statute, the court must approve targeting and minimization procedures to ensure only appropriate individuals are subject to surveillance and that limits the handling and use of any communications so collected. implementation of the statute is overseen by all three branches of government, including the appropriate inspectors general. it is true human error has led to mistakes in implementing the law over the years, but it is
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significant that no internal or 702rnal review of section has ever found any instance of an intentional violation of the law. moreover, section 702 has been highly important for national security. the privacy and civil liberties oversight board found unequivocally that it has helped the united states learn more about the membership leadership structure of internal terrorist organizations. s enabled the discovery of previously unknown terrorists as well as the location and movement of suspects already known. it has led to the discovery of previously unknown terrorist plots against the united states and foreign countries, enabling the disruption of those plots. the board came to these
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conclusions about the value of section 702 after conducting a lengthy, in-depth review of it. just as importantly, the board found the program was constitutional and often rise by statute. in addition, the board proposed a number of recommendations to help improve the privacy and civil liberties protections of 702 the relevant government agencies has taken significant steps towards adoption. that is encouraging news. i look forward to hearing about the status of these recommendations today as we discuss reauthorizing this important national security authority. what i think we will do is start with the first witness, mr. wainstein, and then when senator
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leahy comes, we will stop and let him make his opening statement. would you proceed please? mr. wainstain: thank you chairman grassley. it is an honor to be here today to support their authorization of fisa and to discuss the issues it raises. since the attacks of september 11, we have been engaged in methodical effort to enhance our intelligence capabilities and build a legal and operational framework that affords us the ability to intercept our adversaries communications. a centerpiece has been congress 's decision to modernize our efforts by passing them fisa amendment act. the faa in 2008 and reauthorizing it in 2012. it is more and remind ourselves why it was necessary to modernize in the first place. as you know, fisa was passed in 1978 after the church committee
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hearings and the views they disclose persuaded congress that it should be subject to a process of judicial review and approval. congress passed fisa which established the surveillance courts and defined the types of surveillance that requires approval from the court. congress differentiated by the technology of communication that effectuated its intent to require court approval for foreigndeception in requirements. those communications network for based where the fourth amendment does not apply. with the changing communications years,ogy in intervening the government found itself having to expend significant .anpower
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that situation became in tenable with surveillance efforts after 9/11. congress stepped up in the spring of 2007, undertook a thorough analysis and debate of sa and revise fi ultimately passed it in july 2008 and its reauthorization in 2011. in both occasions, members of both parties crafted a law that was a significant step forward for national security and civil liberties. fisa was amended in three important ways -- and authorizes the fisa to approve the surveillance of foreign adversaries overseas without requiring the government to have an individualized application. had ation 702, the faa
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new streamlined process by how categories of approved targets surveilled and subject to toeview of the court, also include the attorney general, the heads and inspectors general of the agencies. in addition to providing this authority and prescribing oversight, the faa added to the protections of u.s. persons by imposing for the first time the requirement that the government obtained an individualized order from them fisa court when it has surveillance on a u.s. person outside the u.s. it was a very well cap -- calibrated piece of legislation. it provides the government with the surveillance needed and also had a close eye on oversight. since its implementation, faa
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authorized surveillance has been critical in detecting and understanding the threats we face. that was the case when we were looking at the reporting in 2008 and still the case today, as you know from your briefing. besides being implemented effectively, it has been implemented responsibly. there have been no known instances of potential misuse. i asked congress to focus on the three considerations laid out. one, the vital importance of the surveillance authority to our counterterrorism efforts. two, extreme care that members of both congress crafted when they passed it. and the findings of this authority has been implemented to great effect. in addition, we want to focus on one other important consideration which is the surveyor the of the terrorist threat we still face today. threat,at continuing now is not the time to weaken
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our defenses or skill back. now is the time to insure our intelligence community operators have the authority they need to protect our country and it is time to reauthorize the statute which has done so much to protect our liberties. thank you for the opportunity to speak about this issue and i look forward to your questions. grassley: i would ask senator leahy to give his opening remarks at this point. sen. leahy: thank you, mr. chairman. we had conflicting schedules this morning. i think it is very important. a year ago this week, the house of representatives overwhelmingly passed the usa freedom act. several weeks later, the senate followed suit. the government surveillance authority's first major overhaul in decades.
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we are now examining the fisa amendment, often referred to u.s. section 702. this expires in the end of 2017 so i'm glad we are having an early start. i hope we can avoid the needless expiration we saw last year when the leadership would not bring up the usa freedom act until after the expiration. that we ared holding this hearing in the open. so the american people can be part of this conversation. when congress last reauthorized it was in 2012, this type of discussion was not possible. almost everything about its implementation remained classified. since then, the obama administration declassifeied it. the transparency report is put in place for the usa freedom act, prompting our efforts.
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we have a lot of work to do. we are still missing a lot of facts about section 702. additional reforms are needed to protect americans privacy. we have to restore global trust in the u.s. technology industry, not a minor thing. section 702 is in important tool for our national security agencies. broad. is also extremely section 702 is aimed at surveillance of foreigners outside the united states, it sweeps up a sizable amount of information about innocent americans who communicate with foreigners. the authority requires oversight and transparency to protect americans. 2012, i ogain in acted the fisa amendment
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because of the lack of safeguards. despite our concerns of american medication being swept up, we don't know how much is being collected under this authority. the intelligence community is inventing a methodology. i applaud that this is happening. it is all the more significant because both intelligence and law enforcement agencies share this data. without judicial approval. these backdoor searches i think raise serious constitutional questions. i ask consent to enter into the record written testimony from several organizations raising concerns. >> without objection. sen. leahy: i know we will hear about this authority to our national security and its importance. i understand that.
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the conversation we should have. we must also ensure that surveillance programs operated respect then 702 other part of american security, our liberties and our constitutional values. align withess they that, it is a false sense of security. i look forward to hearing from our witnesses. olsen,asllesley: mr., please continue. mr. olsen: i'm honored to be here to talk about is important issue. i can attest to the values that faa has provided to our national security. it has significantly contributed to our ability to prevent terrorist attacks inside the united states and around the world. as a former general counsel of the national security agency and a former official at the
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department of justice national security division, i was responsible for insuring the law was implemented in a way that complied with the law, constitution and protected the privacy of americans. i will focus on the operational aspects of section 702 and the value that this authority has provided. i think to start, to appreciate the importance of section 702, it is helpful to describe briefly the threat the u.s. faces from terrorists. over the past several years, the range of threats has expanded and become more diverse. by any measure, the so-called islamic state presents the most urgent threat to our security today. it has seized territory and secured the allegiance of terrorist groups across north africa and the middle east. its century are in syria and iraq provided the ability to execute external attacks as we
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have seen now in paris and brussels. it has the ability to incite others around the world as we have seen in san bernardino. isis is not the only threat we face. veteran al qaeda fighters traveled to pakistan to take advantage of the environment there. they are seeking to carry out attacks against the west. al shabab threatens our interests in the region in somalia. haram, of isis, boko continue to have the base of operations in africa. it is vying with isis to be the leader of a global jihad. weilding significant influence. to bring down an airliner coming to the united states. aainst this backdrop of
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dynamic and lethal terrorist threat, the ability of the united states to surveillance is vital to our security. we have relied on daily intelligence briefings from data collected from 702. this is how we figure out the capabilities of our terrorist adversaries with tactical insights. two specific cases now be classified. 2009, it was used to target an e-mail address used by an al qaeda courier in pakistan. we intercepted a message sent to an american in colorado. he was urgently seeking advice on how to make explosives. further investigation revealed he and a group of operatives had imminent plans to denote -- detonate explosives in the new york subway. we were able to stop that before it occurred. nsa conducted surveillance of an
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e-mail 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, missiouri. the investigation revealed he was connected to other al qaeda associates in the united states part of the early plot to bomb the new york stock exchange. cases,context of these it is worth emphasizing the role of incidental collection under 702. in these cases, the government collected the communications of operatives inside the u.s. directly of a consequence of the contact located overseas. this is critical to the description of these plots. incidental collection but to the incarceration and led officials to advance their investigations.
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beyond the united states, section 702 has been invaluable in supporting counterterrorism efforts of our allies around the world. finally in describing the values , it is important to explain why this is uniquely important. general,ant attorney overseeing the foreign intelligence program, experienced firsthand the aonsequences of the pre-fa fro approach to demonstrate probable cause if targets overseas was an agent of a foreign power. it authorizes the government to obtain critical intelligence about terrorists and other targets which you cannot obtained by other means. in conclusion, i would say the authority congress established in seven at two has played an indispensable role in protecting the nation against terrorist threats. i look forward to your question.
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>> thank you, members of the committee, for this opportunity to testify. our nation faces real threats from international terrorism. your challenge and your responsibility is to ensure 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 interests. section 702 in its current form does not accomplish those means. technological advances have revolutionized communications. people are communicating at a scale that was unimaginable just a few years ago. international phone calls which were once difficult and expensive as i remember are now as simple as having a screen. the internet offers countless additional means of international communication. globalization makes these exchanges as necessary as they are easy.
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as a result, the amount of information about americans that the nsa intercepts, even when targeting foreigners, has exploded. instead of shoring up safeguards for ordinary americans and foreigners who communicate internationally, section 702 did the opposite. it eliminated the requirement of an individual court order to collect communications between foreign targets and americans. it also eliminated the requirement that the target be affiliated with a foreign power or terrorist group. while the government must certify that to acquiring foreign intelligence is one of -- it must also include
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conversation of current events. the government has interpreted collection ofow information not just to the target at about the target. this underlies the nsa upstream collection program whereby a huge amount of communication flowing into and out of the united states are scanned. is, whichection and obtains stored e-mails from u.s. companies, the nsa collects more than 250 million communications are year and that undoubtedly includes millions if not tens of millions of of american e-mails. domestic communication is included. to call this kind of mass collection elevated.
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there are deep concerns. a 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 avenue dei searches through them for evidence against a americans and fails to notify the defendant how it obtained the evidence it drives a whole the size of fort meade through the fourth of. constitutional concerns aside, the mass collection of communications comes with the never get risks and harms. us howum fiasco reminded vulnerable it is to foreign hackers. with sensitive information about americans carries a risk of abuse or negligent mishandling by this or
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eight teacher administration. alsoy broad surveillance to do business- overseas. told these risks are justified because section 702 has stopped terrorist plots. but the question is not whether just 702 is useful. we must also ask if affect of surveillance can be conduct did in a manner that is less intrusive with fewer cost to our liberties. within constitutional bounds said i the court, americans should be able to decide for themselves how much surveillance is too much but to do that we need information. wydenears after senator first requested an estimate of the number of american communications collected under
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section 702 we are still waiting. congress and the public need this information for the democratic process to work. thank you. >> in 2014, the oversight board which i chair issued an extensive report on 702. in part to foster the type of debate we are having today. in short, it collects the contents of some of non-united states persons outside the united states for which there is a foreign intelligence value. it has proven to be a valuable intelligence tool thwarting plots.
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section 702 has two components. prism and upstream. in prison, it collects the information from providers. non-us persons, from time to time it those persons communicate with united states citizens. the u.s. persons are not the targets but inadvertently, noted dance it will be collect it. contrast, the upstream communications, the united states intelligence gets access and can collect the contents of e-mails and phone calls. the government does not look just in the header of to in from but also scans contents for eight targeted selection. a result, if i were communicating by e-mail and sent an e-mail address of my uncle in
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turkey says she has a place to stay in turkey, if it turns out my uncles e-mail is one of the select yours in the 702 program, my e-mail could be picked up and copied into an nsa database even then neither of us is suspect did of wrongdoing. if this program is to continue, it should have a privacy and civil liberties, particularly where u.s. persons are implicated. i recommend three changes. first, many of the communications have nothing to do with terrorism or crime. they can include family photographs, love letters, discussions of physical and mental health. persons queries of that database are therefore capable of revealing a significant side of personal life. this includes with relatives, friends, and business associate
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s. there should be some form of protection. before acquiring these databases for a united states person identifier, intelligence agencies and the of the eye should be required to submit their queries to the court for approval other than in exigent circumstances. most important is there should be a life-tenured literal judge who has the final say about whether an american persons information can be collected and reviewed. a concern is the american to american collection and over collection of communications. building on on the recommendations, the technology evolves and the united states should be required to evaluate the effect of nessus grinning communications and talk about how to separate them out so we
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can have conversations about whether all should be collected. a large number of persons incidental communications are collected. but how many? if we are to have an informed debate it is important that citizens at and members of congress know how many communications are being implicated in this program. i have no doubt the government issues in howd many it collects but nevertheless i urge the committee to require all agencies collecting messages under 702 to get a manageable way and provide statistics to congress on a rigor basis. i have they will see this as an opportunity to enhance protection and 702 while maintaining a program that has provided enormous lake valuable information to protect our country from terrorism. thank you.
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>> mr. chairman, ranking member leahy and ranking numbers of committee. providingfor opportunity to serve. i serve on the oversight toward. although other witnesses have aspects,iscussed some it has been so widely misunderstood i think a few key points are worth stressing. the limits under which the 702 program operates. the government can target only americans living outside the united states and they can never target anyone living inside the united states and they cannot any foreign person located outside the united states, it can target only persons likely to communicate information about topics approved the courts and only a
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fraction of a percentage point the world. users in although united states persons cannot be targeted, some u.s. persons communications will be collected. if they communicate with a person targeted, that will be collected. that does not mean all of that u.s. persons communications will be collected but only the communications with the target. if those communications reveal a terrorist or an inside the united states, they would be among the most important communications collected under the program but because it has privacy implications, the statute requires the government to operate the program under strict roles that minimize the privacy impact. section 702 is unquestionably a highly effective source of foreign intelligence collection. the programo found terrorist disrupt
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plots, identify persons previously unknown and terrorism, and understand terrorist priorities and tactics. it was concluded it was reasonable under the fourth amendment. the board recommended but did not either to be legally obligated. it is worth noting the boards five members were unanimous in the reports central conclusions and we were also unanimous in our recommendations and how to improve the roles. the administration has implemented many of the recommendations and is working on the rest. one issue that divided the board is queries. has beenr concern raised about queries by the fbi. at the fbi, a typical early step in the investigation is to secure the databases to see what it already knows. the queries do not distinguish between u.s. persons and others because nationality is irrelevant to a criminal
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investigation. one of the databases contains a subset of information collected under 702, although none of it is collected upstream. an fbi query may include this database along with other databases even if the crime being investigated does not relate to national security however it is an -- extremely unlikely it will hit on 702 data. some have suggested requiring the fbi to get court approval anore conducting a query in investigation of a non-international crime. the board did not recommend this approach end up i think it would be a mistake. i will mention one of several reasons why. requiring judicial approval would be a step toward re-interacting the wall the government has worked hard to tear down since 9/11. an investigator looking into a non-national security crime would be unlikely to find a
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connection was 702 information but if it existed it would be important to know. the fbi procedures should not limit queries in way that would prevent government from discovering these connections. usingshould not placed on been on requirements of using if it is responsive to a query. this includes limits on who can view responsive information, high-level approval information before information can be used in criminal proceedings, and noticed to a defendant if his medications are used against him. these communications strike the right balance between getting the benefit of information on that collected under 702 and protecting those whose communications are collect it. thank you and i look forward to your questions.
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>> what can you tell was about this and how would affect as if congress they'll to reauthorize? >> thank you. i will be brief. was the homeland security advisor in 2008 when the amendment was passed. as you recall, the committee was surveillancecting and intelligence through the protect america act, the stopgap legislation. pointuld see even at that the richness of the information coming in that got all the way up to the white house. step forward major and as i mentioned earlier, that is critical. it is critical as a remedy for
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what problem arose with the changing technology over the time between 1978 and when the amendment was passed in 2008. if we were to go back to that, where we have way too many surveillances critical to carry out and not enough manpower to do individual orders for each. >> i agree. i was in the justice department before the amendment was passed. we were, at that time, having a very hard time keeping up with the number of terrorist targets we're trying to track who were not u.s. persons who are located overseas. we were seeking warrants and the system was overwhelmed for individuals not entitled to that level of fourth amendment protection. -- es amendment change that thatise amendment change
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and to go back it would overwhelm judicial resources. today, as ivalue mentioned, i saw the value almost on a daily basis. analysts tocult for say, this came from faa or 702 collection. 30 cases were cited in the report raised on classified , 30 specific cases in which section 702 was the initial catalyst that identified previously unknown terrorist operatives or plots. that is 30 cases that were otherwise unknown. >> about some people's suggestion we get judicial approval or warrant before querying the database of 702 with a u.s. persons phone number testimony an your
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moment ago you mentioned one reason you thought this was not a good idea. reasons you can describe that in your view makes such requirements problematic? >> thank you. i will mention two of them. i am not sure it would further protect privacy and i am not sure it would be workable. query is a relatively unintrusive tool. it is less intrusive for the government to look at information it already has been to go out and collect information. what if it requires approval, the government will have to put together a package which will require them to go get your information which means you would require more inches of teens to justify the use of more intrusive means and that seems backwards. distinguish not between u.s. person queries and otherwise and that is because it
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is irrelevant. if they are doing a big fraud investigation they are not going to indicate whether it is a u.s. person or not because there is no reason to ask that. it is not clear to me how you could do this without requiring judicial approval for all queries and because it is so cumbersome it would likely result in no queries which would of otherollection investigations which would be a follow-up for mr. weinstein and mr. olson based on your experience in me and intelligent community, what would the effect he of subjecting these queries to judicial approval? with ms. brand. it is hard to read it but it is certainly the case having work in the division that that would slow down the process of searching for information lawfully collected.
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the attorneys working with the fbi or nsa would have to compile applications to the court. in cases where the court can move quickly there is no doubt it would be a more cumbersome and slow process in instances where i am confident agility and speed is critical. i think without any gain from a privacy for spec of and against a record that has no indication of abuse of allowing these searches. >> go ahead. to add to that, keep in mind that kind of requirement is not in place for information collected incidentally under title iii which is the criminal wire tap statute so it is ironic you would impose that in a
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national security context where you are often trying to prevent that from happening worse need is of an that this -- essence. >> senator leahy and then senator from texas, i am going to step out for just a minute. youtube go ahead. you.ank i think everybody agrees we want to keep the country safe. i always worry about different numbers. about 52 attacks. the numbers are always given public whenstify in the 52 became a dozen which ofame five which became part one after-the-backed follow-up
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investigation. not suggesting these are exactly the same but i always worry about numbers that to the were sure did that americans privacy was protected because of the measures nsa had, they were not good enough to stop a 28-year-old from stealing all of the information and bringing it to china and russia but otherwise they were very protect of of american rights and part of this worries me, i want us to be secure but i also we could be very secure if we put a tale on every single american and search every single americans computer and on. none of us are suggesting that. but i am worried if we do parts ask, whytop so let me
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do you agree with the review group that congress should require a court order based on probable cause? >> thank you. i think to understand what is so disturbing about backdoor searches you have to look at what comes before them. fit its way into the fourth amendment and in order to avoid getting a warrant or individual order, the government parto certify to the fifa not only that it is targeting a foreigner and not an american and not only that it has a foreign intelligent purpose, but also that it is not doing any reverse targeting which means it has no intent to target any particular american and then having made that certification, all three agencies can sort through the data looking for the communications for the very
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particular american. need a does not even foreign intelligence purpose to do it. it can search for evidence that has no component whatsoever. it is a bait and sweet if undermines the spirit if not the letter and it undermines the purpose of that prohibition which is to ensure that section -- ands not become and fisa.n around the review board on technology included a former deputy and acting rector of the cia. chief terrorism advisor to george w. bush recommended a
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warrant to search american communication. they were not trying to rebuild the wall. a were trying to protect americans from warrantless searches and that is what the backdoor is about. >> is some argued we should not worry because section 702 programs are these minimization procedures to limit the retention of the information. you, dold ask both of you believe the current minimization procedures and sure the data about americans? is that enough? >> they do not. they call for the deletion of informationicans upon discovery on whether it has any foreign intelligence value but with the board report found
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that information was never deleted. it sits in the database for five years and sometimes longer said the minimization does not address the privacy can turn of collected communications where there has been no warrant. when the government shifts its attention it should be court asroval in that exchange mentioned earlier in title iii there has been a a warrant and in the united states we cannot e-mails and listen to their phone calls without court approval and the same should be true when the government shifts its attention to americans under the program. >> do you agree? >> i agree. if the government has collected the information lawfully, there is is a belief they should be able to use it for other but that is clearly not the case with section 702 because congress has required minimization.
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that is the opposite of, you can use it for whatever you want. inquiryonableness includes an assessment of whether the safeguards on americans are used. >> thank you all for being here. i am encouraged that to everybody on the panel including the ones sitting up here agree foreigngeting intelligence services using 702 has not only been demonstrated as constitutional but is also affect the of and the question to me is, do we want to limit ourselves in terms of access to foreign intelligence in a way that could make us less safe and that is an important conversation to have, it i am pretty clear on where i come down. the concern is with what is happening in syria and with the growth of the islam of state and
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-- or whatever you want to call them. where you are seeing a path where foreign fighters making its way in, they do not need a passport to come in. many of those countries have these so waiver programs with whether peoplees can gain access to the united states or whether they can, in the case of san bernard you radicalize people in place and although the people involved had traveled to the middle east. i think it is really important we understand what the process is. obviously a lot of oversight why the fisa court. many of my colleagues say it is very important to them. justice, a lotof of oversight and effort to try
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to minimize the impact on american citizens although the fact of the matter is as i handed, the only american citizens who would be impacted by this process without a court order will be those who are communicating with a known terrorist target overseas. innocuoust exactly an purpose it seems to me. olson, i want to talk about what to efforts have been built into this program to minimize the brett or sweep of this program that might otherwise pick up american citizen communications in a way that the intelligence community could care less about. >> one of the hallmarks is all three branches of government play a central role in ensuring it is implemented in a way that
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protect privacy and civil liberty. on the front lines of oversight and fisa played a robust role part of that. it is aggressive. this committee and the intelligence committee plays a significant role. toh respect in particular united states persons information and the minimization procedures, that was consistent with the fourth amendment and statute and that is the exact opinion judge hogan recently reached last fall in a case he classified -- declassified recently finding the government recent certification was constitutional and complied with the law and in particular, the use of fbi queries of 702, the
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issue whip and discussing, was with the law and constitution. >> under the fourth amendment, the issue is whether the searches reasonable. some people are suggesting there some outright prohibition here but under the protective mechanisms built into the statute, the court upheld access by an communication american citizen with somebody we know who is a target of foreign intelligence purposes. did not meandina this seriously but he mentioned sweeping up love letters. my stuff tells me there is a whereicant case recently, terms like wedding cake and marriage were used as code words to plot attacks against the united states. is that something you can talk to us about?
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>> certainly it was one of the key cases the government referred to as an example. >> in other words, in our zeal to protect love letters we do not want to protect terrorists who use code words that might other escape scrutiny. right. is let me give you a hypothetical example. terrorists communicating, this is hypothetical, say they sure a passport photo of an american. that would be potentially viewed by the nsa and a collection under 702. that passport photo could be innocent, right? just two people sharing a photo somebody they know but it would importance toant the nsa and fbi to collect that information and be able to search 70 to quickly to say, who is this person?
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do we have other information in our databases? from my live, that is what we would want to be able to do quickly and without probable cause. there may not be trouble cause but that would be under the statute. >> we talked about the wall between law enforcement and intelligence and probable cause is critical under the amendment where american citizens rights under the hill of rights has to be protected by a court order. terrorists do not have any protection of the fourth amendment doors probable cause necessary. we need to hammer that home because people are confused about that. >> thank you. >> thank you very much. thank you for holding this hearing because it gives us an advance on the hearings that will be held certainly next year. i very much -- and i want to
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commend those who serve on the p club board. take you for your service. matt olson, it is good to see you again and take you so much for your service it is very much appreciated. as a long-term member of the intelligence committee, about 15 years now, we see the value of this program frequently. the problem may is the toernment has been reluctant declassify sufficient numbers of cases of the public gets an understanding of the value of the program and the case has been used in the 215 situation. it is used intensively and the 702 situation so for anyone listening, it is important to declassify more of these to show the value of this program. those of us who meet to afternoons a week and hold hearings and read the intelligence see the value of
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the program but i inc. if the general public does not, i see it as practical, prudent, as it maintains constitutional guarantees. directoren reading the of national intelligence's unclassified report on the ability to query section 702 using u.s. person identifiers as an essential national security tool. i would like to read a couple things and ask that you comment on them. a u.s.alking about using person identifier and saying it would in putin in some cases preclude the intelligence community's ability to protect the nation against terrorism and other threats and t discusses
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this is not required by the fourth amendment. that it would be impractical and it is where the intelligence anmunity begins investigation having already developed probable cause and i think that has been said by one of our witnesses. ask mr. medina and others to comment on the ,ext of your recommendation there are 22 of them and you say many have already been accepted by the government. the one i am curious about is on toe 16, recommendation updating the procedures to query ofy reflect the 702 data for non-foreign intelligence matters and place of additional limits on the fbi use of section 702 data on such matters. would you comment on that,
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ladies? >> one of the things our board discovered in the investigation indicatedayor brand that the fbi routinely looks into 702 databases and not just in investigations but even in assessments when the fbi has no suspicion of wrongdoing but they are entitled to poke around and see if something is going on, they nevertheless query the 702 database. they were not transparent about . >> a member of the board and i dissented. >> i think this is
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going to come up. would you please put the for this body both sides of the question? >> sure. query,side of having a as i mentioned earlier under the fourth, the government is now accessing american's personal communication and i want to clarify one point. this program does not just target terrorists. it would be different if it was only terrorists. it targets anyone with war and intelligence value. a businessman or anyone out of the country with that information. so we have an american talking to someone potentially innocent of any run doing who could temper with the communication. it could be a love letter, it could be a business transaction, but all of those are being captured. when we shift attention to those communications, the question is should we have court approval. senator feinstein: i want to
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switch to misprint. >> thank you. it is important to keep in mind when you are talking about the ei the scope of the issue. the fbi does not get any upstream data. there are two aspects, prism and upstream. upstream is more concerning from a privacy standpoint. thatbi does not get any of data. they get a subset of seven 02 data. one concerns are raised about queries of seven due two data, 702 data about wearing in a national security investigation, because everyone seems to agree that is ok in a federal investigation but that is about other investigation. when we were doing our reap port, discussing this with the fbi, they were not able to give us an example of that having extremelyough it is unlikely. judge hogan wrote his opinion and referred to this possibility
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as remote if not entirely the radically. -- if not entirely theoretical. if there is a connection you wanted to be discoverable. dianne feinstein: thank you. >> now senator. >> thank you. i was glad to hear senator feinstein talk about the value of the program. she has insights many of us on intelligence do not have so it is important for the american people to understand why this is a useful and important tool. back to the point about the classification, i would guess some of the apprehension could relate to other bad act doors, reverse engineering how they can avoid detection if they know which patterns were used to identify and thwart other events. it is not just merely because they want to keep it private.
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there are probably legitimate future risks in understanding how this was triangulated. is that correct? -- mr. olson:s yes. i think this is about how the government collects data. brant, i want to go back to the other question. you talked about the irony of requiring a court order before you get access to these 702 data requiring more information to be captured before you can move forward. could you talk more about that. i think it also speaks to the elongation of the process. while the fisa courts may be able to move quickly, there is time associated with gathering the information. >> sure.
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in general, investigations progress from using less intrusive means two more inches of means. in the beginning, you may have a tip and you want to figure out whether to pursue that tip or not do anything. a query of databases to see what you already know. as the investigation proceeds, you may develop enough in mason to satisfy probable cause for a cap. atarrant or wired the initial stages, you typically do not have a chance is why you do a query. to then require the government to compile more information to start with a less intrusive teens does not make sense but mr. wayne may have more insight. i just want to address the speed issue i think that is something people need to focus on. mr. olson, i have been to a number of different threat investigations where there is an indication of a threat may be
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here in the united states and the at that point you want the intelligence operatives to get intelligence immediately to every area where there might be relevant information. while the fisa court doesn't quickly, the process being not more intrusive in relation to the u.s. person privacy, it takes time and that time could be critical in a hot threat investigation and we have seen that over and over over the years. i speak tou mind if privacy? i would hope this community would take note of the fact that the privacy community is unanimously behind the requirement of a warrant because it is our considered opinion this is far more effective on privacy. ask are you aware of any itmples to this point where would be likely that the warrant would be denied? i am trying to find the violation. here's the reason i am
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concerned. we are in an environment where the number and severity of threats according to leading people in the intelligence community are at an all-time high. only thes not investment in time, it is also resources. we need to be able to identify and cast a wide net. i understand your concern and i am sympathetic to a but the question is, have we seen this necessarily produce a systemic risk violating someone's fourth amendment rights. i know mr. olson said there was no evidence of a abuse of backdoor searches but backdoor searches are the abuse. it is a warrantless search of american communications. data thes a search of
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government is already in possession of. dogs it is a search of dated the government as required by law and or the amendment to minimize the use and access to. >> i have a question of my remaining time. in your opening comments, did i understand you to say that the p club did not necessarily butmmend legislative action there were changes that should be -- i was trying to reconcile that. is that correct? act ashat suggest the they currently stand our sufficient? >> the senator is correct that the board only recommended administrative changes. government is responsible to those and has implemented or is in the process of implementing this. one did dissent and recommended the requirement of a court approval.
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>> mr. chairman, may i just know which report that is? is that the recommendation of assessment report? 702 report, the 700-each report on the program. we were able to have greater -- transparency. >> could we add these documents to the record? >> without objection they will be added. senator franken is next. senator franken: i am ranking and since i am going to stay here for the remainder i would yield. >> thank you, chairman.
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the committee. we were on the adverse sides of a considerable number of issues during the bush administration but he was always an entirely honest and honorable broker on his side and it is nice to see you back before the committee. you mentioned the comparison between incidental collection under fourth amendment searches and under the 70 two program and of course if you go back to the earliest days of the warrant requirement when somebody had a search warrant and was able to go into somebody's desk and search their papers with that warrant, their papers were not just their papers their papers were notes they had made about their letters out and also their letters in and so there was
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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 more complicated but once again, you cannot listen into the conversation of a mobster without listening into the other side of the conversation and so wiretaps over and over and over again and engaged in incidental communication so there is nothing new with 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 the question of minimization. minimization i do not think really applied akin the search warrant days other than there was obliged to be a return
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ultimately of the product. era, fbiretapping agents listening in on a mobster conversation, ever turned out it was their mother or the butcher, you were required to switch off and then check back and see if the conversation had changed to something in corporate tour he but you would be switching in and off. explain more how water and forth -- how modern fourth amendment storage techniques take place in the domestic context under the fourth amendment search requirements and compare the minimization and whatatabase collection to we see with the 702 program? >> thank you, senator. thank you for the kind remarks. i share the sentiments.
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it was a pleasure to work with you. usual a very is as good one and let me break it down into two different questions. in terms of the database, under 702 there is the need, especially the national security context to pull data that might be relevant for the very reason we discussed earlier. when you have a threat or indicator of a threat, you want to access all of the information at once not go to different databases or different agents who collected for one target. so yes, it is pulled in a way that often title iii is not pulled. when you have a title iii wiretap in one case in this district collected in one place and maybe not pulled with title iii conversations elsewhere. but as a doctrinal, legal matter, they are indistinguishable in the following way.
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in terms of title iii, there is minimization. minimization that i am the target. the government is duly authorized to collect on me and i am talking to the pizza delivery guy. the agent is supposed to turn it off and then turn it back on later to see if i am them talking to my terrorist drug dealingr my confederate. but the reality is, if they are listening and i am talking to somebody else, that information is incidentally collected and that person pause -- regardless of whether they are involved in the criminal activity or not -- that person pause privacy has at been reviewed by a jazz -- judge. it has not been reviewed and it is collected. that is what is happening with 702, the counterparty in the conversation has just the same limited rights to resist the government listening to that conversation is the counterparty
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, the pizza guy in my situation. doctrinal question we face is one side has been -- one set has been legitimately collected and then the government puts it in a database and allows itself to search it. should that be seen as a secondary event that suggest the requirement for some gate keeper before they have full access. my time is expired so i cannot continue the conversation but thank you for the hearing. mr. chairman and thank you to senator franken for good work in this area and for allowing me to go before him. thank you for all you have done and like senator whitehouse, i have had experience before. -- and have been in the room for some of these wiretaps. not federal, local. in yourof you noted
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testimony it is critical our laws reflect his balance between national security interest and privacy, civil the birdies. that is one of the reasons i cosponsored the usa freedom act and i wanted to ask you about that bill it self as we look at a reauthorization ahead and what we should be doing when we consider any changes to the law. ittion 702, do you believe strikes the appropriate balance between the protection of national security and civil liberty and what changes would you like to see. mr. weinstein? mr. weinstein: yes. i think it does that. by providing for ample oversight which is meaningful oversight to all three branches and then also , i think you see that balance being played out in terms of the procedures implemented by
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intelligence community refuted by the five's accord and by -- the fisa ourt -- court. is there has been no intentional misuse of authority which i think is very meaningful. mr. olson, i think it should be reauthorized. i was with mr. weinstein part of the effort of the executive branch and can attest to the way in which it was calibrated at the time to make compromises on both sides to achieve in appropriate balance and it has not been static. the implementation of the law has been dynamic and changed over the years, in particular where i think the landmark report of the oversight board , thoroughin intensive investigation and found it was not only valuable but constitutional and legal and made investigations as
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implemented. >> it was raised there was too much data to analyze, do think there is merit to that? >> i did read that and with respect, do not think there is merit. of this type, 702 data, is better than less. the government has the ability to search it, process it, and has a better chance of finding those needles we are looking for when we are trying to stop a terrorist attack. that can be a concern in other areas. i do not think in 702 context that is a persuasive argument. >> i believe that section 702 goes much farther the end it needs to go to accomplish the aims we want to see accomplished and i would point out some of the cases, in fact all of the cases made public relating to
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702 successes are cases in which the surveillance, they section 702 surveillance was in the case of a suspected or known terrorist that had ties to terrorism so while it is evidence of 702 working it does not support the idea -- -- >> i'm sorry, we're short on time. >> the position is the only way to secure the constitutional validity of section 702 is to have an individual order when the government collects information between a foreign target and american but there are many other than tenby taken that includes closing me back research loophole, narrowing the definition of foreign intelligence, narrowing the pull of people who can be targeted so it is not just any foreigner overseas and and ensuring notice is given anytime section 702 is used in legal proceedings.
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>> i would recommend three legislative changes. require the government to estimate the number of american communications intercepted. andten the upstream process require court approval for queries of american information under 702. to senator whitehouse's point, ande has been no warrant when the attention shifts to american information collected time, with-year other people outside the united states, it becomes a moment when the fourth amendment would require court approval. thank you. i would urge congress to reauthorize section 702 and i do not again he changes to these that you are necessary. i would note our in-depth
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review, it did not recommend legislative changes but we did recommend changes to the way the program operates that could be implemented by the administration or the court and the government is continuing to work on others so that is the appropriate way to handle it. >> thank you. >> senator blumenthal. senator blumenthal: taking. welcome -- thank you. welcome to this important and helpful panel. this is a complex topic and you have given insightful and intelligent responses to difficult questions. of my spent a good part career before this job in various courtrooms i am a strong lever in the importance of the adversarial process in ensuring that a court has the best possible information to make decisions and as a result, i
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proposed some years ago that a special advocate established to argue before the court in cases legal issuesvel and i am pleased a version of this proposal was incorporated in the usa freedom act. hearing the fisa court to independent views and a council of independent lawyers has been established accordingly and on several cases the court has appointed one of them to serve as amicus. at me begin by asking question for the entire panel. thed you discuss why initial recommendation was made and how you made it and then
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expertether a technical will be shortly appointed to fill the role envisioned by the statute? hugs the origin of the recommendation was first public workshop we invited a former -- i could testify about his experience. he said how frustrating was to only hear one side. he said in his normal civil or comical -- criminal docket, he hears both and the judge reconciles the competing views but on the fifth, he only heard one side and that led the board to ultimately recommend there be a another side, particularly in cases having novel legal or technological issues. i think we have just gone to see how that program is operating so it is too early.
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but in amicus was appointed and the of because was able to make arguments. a lot of these programs have technical implications. on our board has bought on the andt technological scholar that is important to make the court process work better. as well whoer signed on to the recommendations for special advocate in the fisa court, what i saw was a lot of public mistrust and misunderstanding of the issa process and the fisa court. people who have served in the justice department like mr. weinstein and mr. olson know that is not an accurate description of the fisa court but the public viewed it that way so it is important to have some visibility for the public
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and for the public to have more confidence of out of core works and so i think the public advocate served that purpose. i think the two occasions where the fisa court has appointed an amicus has been useful. >> the health of the court has not just been in appearance. it's enhancing the perception of actual scrutiny in the value that you describe to judges who hear one side and the other side is just not an entertainment value. it elucidates questions, it permits the contrast of ideas and out of that contention, somehow there emerges a better conclusion for the court. >> i agree with that but i do think there was a real misunderstanding in the public
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because there was a sense that the court did not push back that the court simply accepted what the government said it did value and that was not an accurate perception. it will refine court thinking and challenge the court thinking. it will also have the benefit of showing the public that the process has integrity. >> wanted to say thank you for your leadership ensuring that the court was part of your leadership. i do not see it as a rubberstamp it all but i do think it has in the past seen its job and i've heard this from -- that's not the role of the judiciary. the part that was, when the wasn't another party there, the court was not in the role of being a neutral adjudicator between two sides so the court effectively became the other side which was a very uncomfortable role for the court.
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having themul that there will ultimately help the court to take more of a stance of a neutral arbiter. i think it will take time but so far it's a very good thing. >> my kind -- my time has expired. this is a very important topic, it's a very important question. get tod the court to yes. welcomed a time, i --ong adversarial practice process because it made the case better. it reduced the likelihood of a successful appeal. we are dealing with a different context where appeals are unlikely. the result was better. as all of you know, a judge's representingre is
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himself. since my time has expired it will not go into it, but i welcome and thank you for your very important work. >> this is a debate that goes back to the founding of the republic. but me try to cover some ground that has not been covered thoroughly because there are an awful lot of questions that have gone back and forth between this able panel and these members. my understanding is the government doesn't rick -- obtain a warrant.
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some members were present, once that section was adopted, it wasn't intended to allow this type of war and the search of america's communications. >> can any of you proffer an estimate of how many medications with u.s. persons have been collected. i understand it's difficult but if anyone can give us an estimate i welcome that and can you answer the question, do you think we should require queries to be tracked to obtain information about how often the database is used to search for information. >> icy ready volunteers. >> is intelligence qualifying them in the american collective. our board records it -- recommend at some metrics and recently the director said he will be trying to come up with some estimates. it would be interesting to
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acquire by legislation that the director of national intelligence report annually to the congress on a number of recommendations that are essentially collected and the methodology to do that. processt of the ongoing for how the program is operating. >> the report recommended that the government give us more statistics about the impact on u.s. persons and i think there is a good story here is how the people have reported so the administration recently released numbers on two of those measures, including the u.s. persons mentioned by the cia and the nsa. working hard to come up with a reliable estimate. the consequent occasion with those efforts to find their members and their working hard about giving the public reliable information. >> giving an estimate of a
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number of estimates have attained as extreme the important. i've heard that the intelligence committee is working on it but this is requested been attending for years. so encourage you to move this process along. >> with respect to the queries we don't have numbers for how many times the fbi runs u.s. personal queries of the data. the fbi is by far -- from the it is important to get the information. i heard misprint saying that the fbi would have trouble figuring out who is a u.s. person in order to track these queries. the nsa does it, the cia does it. i think the fbi should be able to track it as well and one quick point i was hoping to get in when senator whitehouse was talking about this incidental collection idea that there is one very important distinction
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between the cases that of upheld medications with the target and what we are seeing sections of an 02. in those cases, under title iii, the was that only strict and musician procedures but there was also a warrant in the beginning to target the original suspect in the courts have emphasized the importance of that at the front and because that provides they carry us protection to people in contact with the target and there is the pool of people who can be collected on. >> thank you for that addition. let me ask you two more questions. given that section 702 was initially adopted for foreign intelligence and national security purposes, do you have any concerns about whether it's americante for committee occasions to be collected for domestic law enforcement purposes? applyt question doesn't
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to the terms of whether it is obligated to provide camille defendants with notice. and does the doj ensure compliance with its brady obligation to provide the direct exculpatory information. i will be out of time. >> i think the distinction is not so much between foreign and domestic but in terms of the nature of the case, 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 pfizer court and they get an individualized order. it's a criminal case to go to the magistrate and the get a warrant and that distinction is very easy to make whether someone is an american or not. and sheroblem here alluded to this earlier today is we were involved with bringing down the wall in congress did
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exactly that. the wall was based fundamentally on a distinction between foreign intelligence work and criminal work. that was a distinction that created this barrier the prepared information sharing. the last thing that we want to do is redirect that -- really erect that wall. we've seen seamless information sharing between law enforcement and intelligence personnel. we don't what to do anything to bring it back to the old days which led to 9/11. >> the board unfortunately not look at the question you raised. >> was the question of notification -- >> notification of camille defense. >> that appears to be honored in the breach.
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for a while it was not honored at all and about three years ago there was a change in policy but there have only been eight of occasions in the last three years and that's against the backdrop of hundreds of terrorism national security prosecutions. dozens of material support prosecutions, so there is fbinitely concern that the is avoiding the requirements. perhaps by parallel construction which is re-creating the evidence using less controversial tools. very easy to clear this up. the can simply released policies for how it interprets. the government has been fighting tooth and nail the requests to get those policies. it's another request with a committee could be helpful.
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>> thank you mr. chairman. >> i would like to focus for a moment on the question of transparency in our surveillance programs last year. act, the the freedom bipartisan bill which brought much-needed reforms to the federal government surveillance program putting it into the book data collection program the intelligence committee said it wasn't necessary in the public said it didn't support. i was a proud cosponsor of that bill particularly proud of it transparency provisions with my friend senator dean heller of nevada. we recognize that when the public lakhs even a rough sense of scope of the government's
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surveillance program they have no way of knowing if the government is striking the right balance whether we are safeguarding national security without trampling on our fundamental private rights. the public cannot know if we succeed in striking that balance if they don't have the most basic information about our major surveillance program. so that's why my focus has been on transparency which is why senator heller and i crafted the provisions and that now require the government to issue detailed annual reports for the surveillance authorities and importantly, the government now has to provide the public with estimates of how many people that had their information collected and for certain authorities. the records are communications of foreigners they also have to
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say how may times it has run searches for this data. when the american people have access to that kind of information they can better judge the balance programs. that's not just my view, that is shared by the general counsel for the office for the director of national intelligence. addressingall brookings last year he said the intelligence community recognizes that with secrecy inevitably comes suspicion and the possibility for abuse. i and many others from the believe that there would have been less public outcry from the snowden leaks if we had been more transparent about our activities before hand. sameems to me that the need for transparency applies with equal force we were talking at the number of americans whose phone calls or e-mails have been collected, perhaps incidentally.
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members of the senate intelligence committee have asked for the number of americans affected by civil society and civil liberties groups have asked for the number and just less month 14 members of the house judiciary committee asked for just an estimate. so 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 how about an estimate? >> it would be difficult to provide an exact count with any accuracy at all and i don't think anyone has asked for that. senator wyden initially asked for an estimate, i think i heard him use the word ballpark. that should be possible and with
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a couple programs it should be fairly straightforward. civil liberties community has offered to work with the intelligence community to try to find a privacy protective estimate. it should be possible and it is vital. this program is targeted at foreigners and that's the collection of american committee occasions is incidental. these are terms of art with specific legal meeting but when -- americans are not lawyers and when they hear this they will reasonably assume that america mccain occasions are collected. so if you can pierce through the legal language and give americans a truer sense of what the language entails. >> because miss brand practice up in terms of people's confidence, as to what extent is
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it that is the issue and to what extent is the issue actually when senator blumenthal was speaking -- that the operational and transparency can be handed gloves. so that the operation of this is more consistent with the constitution? those,ink it's both of for the american public to have confidence this program is abiding by the constitution. knowing how many americans are being collected, it also would eliminate the question of clearing that information. report has also been helpful for europeans as well. i was evolved recently in the privacy shield of a lot of these locations.


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