tv Senators Seek Answers on Monitored Calls with Foreign Leaders at FISA... CSPAN June 27, 2017 10:04pm-10:50pm EDT
welcome to all of you. matthew olson is cofounder of iron that cyber security, previously serving as the national security council center, where he reported to president obama on counterterrorism opportunities. generalously served counsel and essay focusing on surveillance, law, and cyber security. under the bush administration, he served as national security division, doj. mr. olsen served as special counsel director of the fbi and special prosecutor for more than a decade. he is a graduate of the university of virginia and harvard law school. a robert m gates senior fellow
for new american security, widely published in areas of surveillance,ity, counterterrorism, law, and policy. he was previously an attorney at international law firm. he has worked on national security policy at rand corporation and the 9/11 public discourse prompts it -- discourse profit. klein served as a law clerk for justice scalia and is a graduate of northwestern university and columbia law school. codirects the brennan center for justice, liberty, and national security program, new york university school of law. she served as counsel to russell feingold, chairman of
the constitution subcommittee on the senate judiciary committee. gotein served as a trial committee in the civil division of the department of justice. she graduated from yale law school. elizabeth collins is serving her second term as board member of the privacy and civil liberties oversight board. previously she was an attorney at two international law firms and served as the republican chief counsel for supreme court nominations for senate judiciary aommittee mrs. collins was council on legal policy at doj where she provided advice and counsel related to national security and other issues. mrs. collins is a graduate of the university of chicago and harvard law school.
we will proceed from my left to my right. mr. olsen: it is an honor to be here this morning. let me put the bottom line upfront, as former director of the national counterterrorism center, i can attest to the fact that 702 has significantly contributed to our ability to prevent terrorist attacks around the world. this is consistent with the testimony you have heard from earlier.ists similarly as former general counsel at an essay and former justice department official, i worked to ensure that we implement section 702 to protect the civil liberties of americans. i will make a few brief remarks and will focus those remarks on three points, all addressing how section 702 has worked in practice. first the operational value of 702. as this committee is where we face a persistent and adaptive
threat from al qaeda and isis and other groups. isis has claimed credit for 40 terrorist attacks outside of its caliphate in syria and iraq. the potential to communicate with isis enters provides a critical role in mobilizing extremists toward violence. to combat this front, our ability to conduct surveillance under 702 has proven . our best opportunity to identify and stop these attacks before they occur is through good intelligence. that is often derived through surveillance authorities such as 702. i relied on a daily basis on intelligence collected under 702 in our morning briefings. analysts often reported that a critical piece of information came from 702. he civil liberties oversight board identified 30 specific cases where section 702 was the initial catalyst that uncovered
previously unknown terrorist plots. in more than 100 cases where 702 led to the arrest of individuals on terrorism related charges. this is an extraordinary record in the past few years. when congress amended fisa in 2008, congress established an unprecedented oversight regime for 702. under this regime, all three branches of government exercise authority to ensure that the government is properly using this authority. this oversight has been strengthened through both conventional and executive branch action. this rigorous oversight regime reflects the careful balance that congress struck in 2008 to ensure that the effectiveness of this authority and protection of civil liberties. in my experience the statute has been effective in doing both. your third point is that calls for major reforms are not
warranted. we have heard about the incidental collection issue. a person targeted for surveillance under 702 speaks on the phone or sense any mail and is often communicating with someone in the u.s. some have raised concern about this collection. usebility to obtain and these communication has been proven vital to the disruption of plots and arrest of al qaeda operatives in the u.s. of a specific cases are an example of this. congress should resist calls to restrict its ability to require and -- acquire and use such information. second involves our ability to search 702 with identifiers such as names and email addresses. these queries are essential means for analysts to identify intelligence that would not ordinarily be accessible.
one of their very first steps is to check databases for potential connections to terrorists. ofa person is suspected gearing towards violence, the fbi can move quickly to identify communications that the government already lawfully collected to find vital clues. i believe this approach reflects an enduring lesson from the 9/11 attacks, the imperative for the government to effectively integrate and use the relevant information it will in its databases -- it holds in its databases to connect the dots. some are imposing probable cause -- in my view this would undermine the ability of intelligent analysts to move quickly and identify information at the early stage of an investigation. such data would be beyond their reach. the authority of congress as established under section 702
plays an indispensable role of and theng the nation, government has demonstrated it can collect vital intelligence in a way that protects the civil liberties of americans. thank you. klein: members of the committee, thank you for inviting me to testify today. in a recent report, co-authors section 702ded that is a valuable intelligence tool that should be reauthorized for the existing statutory authority intact. we also propose enhancements to oversight, transparency, and privacy. the public should know that section 702 is already subject to rigorous oversight from all three branches of government. few government programs receive such scrutiny. it is always worth considering what more we can do to strengthen public trust in intelligence programs. this is just a privacy issue, it
is important for national security. programs that lack public support will not be publicly sustainable in the long term. the challenge is to do this without diminishing 702's effectiveness as an intelligence tool. there are three areas of opportunity. first is to strengthen key institutions that oversee 702, including the fisa court. the secondary is greater transparency, how 702 affect americans, how agents query 702 information and how the information -- how the government uses this information in the criminal justice system. the third is to strengthen accountability for those that report to ensure that the classified material is handled responsibility and never used for inappropriate, including political purposes. i would like to mention one thing i hope this process will avoid. one of the 9/11 commission's key messages is that intelligence commissions should be able to connect the dots between
intelligence. i worked in 2004 during the process that led to the creation of the dni. i know that congress and the intelligence committee have moved heaven and earth to break down still place in the -- it would be unfortunate to reverse course on that progress now. we should not create new obstacles that would prevent agencies from connecting the dots and stopping terrorist attacks. i'm happy to provide any detail in q&a. ranking members of the committee, thank you for this opportunity to testify. congress' goal when it passed the fisa amendments act was to get our government powerful tools against foreign threats. the government has used the authority to monitor suspected terrorists overseas and interrupt their plots. that is exactly as it should be.
we are here today because of the other things that section 702 has been interpreted to allow. the government is not simply monitoring foreign terrorists or foreign powers. instead it is scanning the content of almost all of the international communications that flow into and out of the u.s., and acquiring hundreds of millions of communications each year, including a large although still unknown number of american's communications. in addition, despite being required to minimize the retention and use of american's data, the government keeps the data for years and routinely searches it for information to use against information in ordinary criminal cases. in the current rules allow the fbi to read american's emails and listen to their phone calls without any factual predicate to suggest wrongdoing, let alone a warrant. i can't believe this is what congress had in mind when it passed section 702. inviting the law, congress
entrusted the branch with significant discretion. congress allowed the targeting of any foreigner overseas, trusting the government to focus its efforts on those who pose a threat to our interests. congress lifted to the executive branch and fisa court to fashion specific minimization rules.i don't mean to imply that this trust was misplaced . we have seen no evidence of intentional misuse. what we have seen is mission creep, so that a law designed to protect against foreign threats has become a source of more with access to american that and tool for domestic law enforcement. this is contrary not only to fisa's original intent but to american's expectations and trust that congress will protect their privacy and freedom. there are several reforms that could shore up protections for americans while preserving the core of section 702, the
government's ability to collect the communication of suspected terrorists without a warrant, even when those communications transit through the u.s. i'll touch on three of the key reforms. first congress should narrow the scope of surveillance by requiring the government to have a reasonable leave at the target -- that the target is someone with targeting. this would be an n-terminal determination. no fisa court approval. this would provide critical production not just to look inviting -- law-abiding foreigners, but americans. when the government can target any foreigner overseas, that allows the massive collection of americans and their friends and relatives abroad. those communications then sit in huge databases where they are vulnerable to data theft, hacking, negligent mishandling, and potentially abuse. this reform is vital for the
u.s. tech industry, the government's ability to target any foreigner overseas is one reason the european courts have invalidated data sharing agreements between u.s. and european countries. that is why 30 major tech companies including google, microsoft, and facebook signed a letter urging congress to limit the scope of section 702 surveillance. second, congress general part of the government to obtain a warrant before acquiring section 702 data. contrary to what mr. evans said earlier, restrictions on searches of lawfully acquired digital information or the constitutional norm. even when the government has a warrant to seize digital data in a case, it cannot run a different search of that data for different reasons without obtaining another warrant. it certainly should not have that freedom when it contains the data without -- obtains that data without a warrant. third, congress should codify
the end of about collection. this has no process in the statute and scant basis in legislative history. it is a small section of 702 surveillance. if the privacy concerns it raises are uniquely significant. this is a case where the risks outweigh the benefits. the basic changes will not only go far to protect american privacy, but what better align the statute with the goals it is meant to serve. i look forward to taking your questions. collins: members of the committee, thank you for the opportunity to testify today. in myide this testimony capacity as an individual board member of the privacy and civil liberties oversight board, and independent executive branch agency charged with providing advice and oversight with respect to counterterrorism actions.
our five to 2014, member bipartisan board conducted an extensive examination of the 702 program. in july 2014 we issued a unanimous report concluding that ,eception 702 program statutorily authorized, and at its core, constitutional. we set forth the legislative function graham, the implementing procedures that govern the operation of the program, and the extensive oversight structures that accompanies the program. 10also unanimously voted out policy-based recommendations, each of which has been implemented or is in the process of being implemented, and none of which requires legislation. my oral and written testimony draws heavily from the board report which continues to be a valuable resource for assessing the program. the board conducted a legal and
policy analysis of the section 702 program. we unanimously concluded that the program has a limited scope. it does not authorize or result in bulk collection. instead it authorizes the government only to engage in targeted collection of telephone and internet communications of non-us persons located abroad who are likely to communicate information about court approved foreign intelligence topics with the compelled assistance of providers. although u.s. persons may not be and are not targeted, u.s. person information may be incidentally collected. and that aspect of the program was a core focus of our intention, leading to keep recommendations on minimization procedures and transparency. we also weighed the value and privacy implications of using u.s. person identifiers to query 702 data.
these queries are consistent intelligence community to connect the dots, but also raised significant privacy implications. we made recommendations designed to address those implications. the board focused on the judicially approved targeting and minimization procedures governing the operation of the program. we noted the special protections afforded to u.s. persons and made recommendations designed to titans are aspects of the procedure. -- tighten certain aspects of the procedure. we consider the oversight that accompanies the 702 program. oversight occurs in all three branches of government and can only be described as rigorous. although we identified no excesses of deliberate abuse, there is always the possibility of human or technological error, as with any complex program. and robust oversight is
essential. as a legal matter we unanimously concluded the program is statutorily authorized and is constitutional. although certain features of the program push it close to the limits of fourth amendment reasonableness. we raised and addressed concerns about incidental u.s. person collection, and the use of u.s. person identifiers as query terms. the board also spent significant time understanding the value of section 702. it has helped the u.s. learn more about the membership, leadership structure, priorities , tactics, and plans of international terrorist organizations. it has enabled the discovery of reversely unknown terrorist operatives as well as the locations and movements of suspects already known to the government. it has led to the discovery of previously unknown terrorist plots against the u.s. and foreign countries, and handling
the disruption of those plots. overall we came to appreciate the flexibility that 702 affords the executive branch while still in the framework of judicial approval and oversight. the board's report and recommendations are consistent with what has been called a clean reauthorization of section 702. we made serious recommendations, each of which we thought necessary to enhance privacy and civil liberties protections, but none of which required legislation. each of these recommendations has been or is being implemented. i personally view 702 as being a vital tool against terrorism and think the framework provides the necessary protection to ensure our american values are not compromised. i look forward to answering your questions. sen. grassley: let me start with a question for all of you. to some extent, some of you
touched on this -- you heard me mention earlier some suggesting that the government should have to get judicial approval, or a warrant before searching lawfully collected 702 information using u.s. person information. you all come from different perspectives and you will have different backgrounds. i would like each of you to answer the question, is there any legal or constitutional reason why we should require judicial approval of a warrant before section 702 collection can be searched anyway -- s earched using u.s. person information? >> the question of legal or constitutional requirement, i think the answer is no. courthogan os the fisa
addressed this head on and determined that it was consistent with both the fisa statute as well as the fourth amendment to permit the fbi to conduct such research is -- such searches without going for judicial approval. operationally, it was extremely unwise to impose such a requirement. as a hypothetical example, an individual in colorado was in touch with an al qaeda courier in pakistan. the hypothetical i would pose, imagine if that information came from a tip. thisne told the fbi, person is in the midst of plotting an attack on the new york subway. that would not constitute probable cause in all likelihood, and the fbi would be barred from checking its databases to see if the communication occurred between
the suspect and a career in pakistan. that is the first thing we want to do when the fbi receives the information. it is a relatively unobtrusive step. i would suggest imposing a judicial requirement would bar the information being accessible by the fbi. mr. klein: this is certainly not a trivial privacy question. that said, i agree with mr. olsen's analysis of that. we have information in the public domain about the scale of this problem. how much for an information is coming through this process? we know from the most recent to statistical residency report that there was only one case in 2016 where an fbi agent hold up 702 information on a u.s. person in an ordinary criminal case. overcorrection if
we were to impose a court order requirement. there are other ways to get at this problem. we can have more transparency about why these queries are necessary. we can have more information about how often the bureau does them. we proposed a slight narrowing of these queries in some cases, then my written testimony. by and large these practices need to continue. ms. goitein: we're talking about this information as if it somehow landed in the government databases. the way the government acquired this without a warrant in the first instance, even though it knows it will be pulling in american communications, despite promising the fisa court is that it's only interest is in the foreign targets, that it has no interest in any particular note americans. if you instead went to the fisa court and said there are americans whose particular communications we hope to read
as part of this collection, then the government would have to get a warrant. to me, warrantless backdoor searches are a violation of the spirit, if not the letter of the reverse targeting prohibition. as a constitutional matter this is only quite recently been looked at by any courts outside of the fisa court, but the notion that once data is seized, the fourth amendment is done and the fourth amendment doesn't apply to any leader searches is certainly not correct. you can tell by analogies to criminal cases in which data may be seized under a warrant but if the government wants to conduct a separate search later for different reasons it actually
does have to go get another warrant, even though it's already collected data and it's sitting lawfully in the government databases and i can provide that law. >> i do not believe prior judicial review for a u.s. person query is constitutionally required or advisable as a policy matter. we spent a tremendous amount of time on the issue of u.s. person queries. and we made a number of recommendations designed to enhance privacy protections. these recommendations, which have been implemented,impacted the nsa, the cia and the fbi. but after extensive discussion and consideration, the majority of the board declined even in the most difficult case which is the instance of a query by an fbi agent in an ordinary case to recommend a warrant requirement. we were concerned that such a requirement would raise the threat of rebuilding the so-called wall between intelligence and criminal investigations. and that criminal investigators needed to be aware of potentially relevant 702information. we did, however, recommend
additional restrictions on the use and dissemination of any such queried information. >> senator blumenthal, should i call on senator lee while you're getting really or are you ready? >> ok, go ahead. >> first of all, regarding the role thatef, and the play, i have long been concerned about ensuring that the fisa court, which authorizes and oversees government foreign surveillance activities under section 702 as you know and otherauthorities, has sufficient information about the civil liberties and privacy implications of the decisions
that it makes. in 2013, i proposed legislation to establish a special advocate to assist the court in thattask. and i think it's fundamental that the fisa court hears different perspectives and the weighty statute concerns in this area. the usa freedom act which created an institutional freedom process for participation of amicus curi to provide the fisa court with information about civil libertyies and privacy concerns when the court is presented with novel or significant questions of law. the court has -- i understand appointed five amisi to fill this purpose. so my question is do you think they have played a helpful role, how could this process
beimproved, and what do you think are the next steps for fisa courtreforms in regard to bringing these different perspectives to bear? and that's for the whole panel. >> thank you, senator. this is something i've written about. i agree with you entirely that the amicus development is a good thing. i work in the space so i read the fisa court opinions. i read the u.s. courts transparency reports. i know rigorous oversight. if you talk to ordinarypeople, they're skeptical. there are two reasons. because it's in secret and that really can't change by and large, although the declassified opinions are a good thing. the other reason is because in most cases only the government
gets to argue. and people are used to a court where both sides get to argue. the usa freedom act adding amicus is agood thing. as we know, it's in the court's discretion. so given the significance of the annual 702 resort ification proed seeing, one thingi've proposed i think would help strengthen the public confidence, that that is rigorous oversight. to require the court to appoint an amicus, which is problematic oversight. this is a way to build trust in 702 that people know it's getting rigorous scrutiny. it wouldn't affect the government's implication of the program which we're all concerned about one bit. >> thank you. i want to thank you for your leadership on that specifically.
i think it was an extremely important contribution of the usa freedom act. i i think it's clear from the act thatcongress intended for the fisa court to make use of any case in which there was a novel or significant legal issue unless there was some extraordinary circumstances. for the most part, the court has done that. there were a couple of occasions in which the court has foundparticipation inappropriate based on the rationale the court didn't need help. i don't think that's consistent with what was intended. but that's been rare. that's something i think this committee should keep an eye on. i do think it makes sense to have participation in the annual certification process. be mandatory. and the one other thing i would suggest is there's currently no provision for amici to appeal rulings of the fisa court if the amici arguments were rejected. and sometimes that's important. i think we saw in the fisa court's decision on back door searches, there were a number of, to say the least, very novel
legal issues there that would have benefited from review. i think congress would usefully provide a provision requiring automatic supervision tofisa court review in significant cases where the amici's arguments are rejected. >> thank you. the privacy and civil liberty's oversight board spend asignificant amount of time looking at the workings of the fisk and we addressed the surveillance court both in our 702 report, which is the subject of today's hearing, and our section 215 report. we made a series of recommendations which were designed primarily to enhance public confidence in the workings of the fisk and the oversight that bodyprovides. we supported the concept of a special advocate. it was one of our recommendations. we did ultimately leave it to the discretion of thearticle 3 judges who sit on that court. but to the point, we did also recommend consideration of a
mechanism for appeal. although not as a right. >> as you know, my initial proposal was for a special advocate and that itbe, in fact, at the advocate's discretion whether to be engaged not at the court's discretion. so i would welcome thoughts as to how to improvethe present process. did you have any comments, mr. olson? >> no, that's all right. i would simply add, somebody who has appeared many times before the fisa court on behalf of the government, that thecharacterization of the court as a rubber stamp or insufficientlycognizant of the array of issues before it i think has been unfair. that said, i agree with the benefits from a public legitimacy standpoint ofincluding the opportunity for these judges to appoint amici in appropriate cases. largely agree with my colleagues here, how that's worked out over the past couple of years. >> we all know the best judges who are not rubber stamps welcome theadvocacy on both sides of an issue. enables them to make betterdecisions. their worst nightmare, in fact, is a defendant who isunrepresented order representing himself in many respects. >> i agree. >> that's the way the system works. that's the spirit that led me to make this proposal. thank you all, very, very much. thank you, mr. chairman. >> senator lee.
>> thank you very much. >> when senator lee's done, i'll just have one question and then i think we'll be done. >> like to start with you. why is it concerning if agents decide not to use information that they obtained when doing a back door search? >> in other words -- >> i'm sorry? >> what kinds of concerns does it raise when you've got somebody doing a back door search, whether they use it or not? >> i see your point. the point is the search itself is a violation ofamerican's privacy. heart of the fourth amendment is the government has to have a warrant before entreating on
american's reasonable expectation of privacy and whether or not they find something as a result of that does not affect the privacy intrusion. it has other effects potentially. but, you know, if the government enters your house withouta warrant, and doesn't find anything, there's no argument there that somehow your privacy wasn't invaded because the search was fruitless. so i think we have to understand the nature of the privacy intrusion when the government is allowed to search american's communications without a warrant. >> ok. what kinds of things can information be used for? what kinds ofinvestigations could incorporate information obtaineded through a back door >> well, we don't know exactly for a couple of reasons. one reason is because the list of crimes unrelated to national security, that thedepartment of justice is authorized to use section 702 data when prosecuting, that list is not public. all we know is it's serious crimes. we don't know which crimes those
are despite repeated requests, thatinformation has not been made public. the other reason we don't know isbecause the government has had spotty complaints at best with thestatutory requirement that it notify criminal defendants when using evidence obtained or derived from section 702. the government's interpretation of derived from appears to be quite generous, perhapscreative. but once again the department has refused to make thatinterpretation public. it's fighting requests for that interpretation tooth and nail. what we do know is there were no notifications given at all until 2013 and then when the government was essentially caught telling the supreme court that it notified defendants when it doesn't, it changed its practices. since then, i think there have been eight casesinnotifications. despite the fact the fbi reoutine routinely searches section 702 data in certainly national security cases, and there have been hundreds of national security
prosecutions during this time. so we have an information deficit here. >> in fact, we don't really know, we don't have any idea how often this occurs. you know, the organization recently signed a letter to the director of national intelligence expressing dismay as to why he waschoosing not to provide an estimate as to the number of americans who were subject to these. >> yes, and if i could, i would like very much to speak to the notion thatthis is somehow infeasible or at least not without drastically violating american's privacy. there are three kinds of collection under 702. the first is collection of telephone calls. it is a simple matter to assess, toestimate, whether someone on one end of the call is an american and that's by looking
at the country code. it's not perfect. but we're not looking for perfection. we're not looking for an exact count. we're looking for an estimate. it is certainly sufficient for that purpose and involves no privacy intrusion. the second kind of collection is upstream internet collection. when the government conducts this kind of collection, it must first run a filter to try to filter out wholly domestic communications. it doesn't do this by doing a lot of research that invades american's privacy. it does this using ip addresses and some comparable technical. it manages to filter out enough. with this method of determining the american versus foreign status of a commune can't issufficient for purposes of complying with the constitution, i think it should be sufficient for purposes of giving americans a rough sense of how many of their communications, are collected. >> sure. >> the third program is where there are more complicated issues. even for that program, the privacy community is unanimous is saying that conducting a one-time limited sampling under careful conditions would be a net privacy gain. >> mr. chairman, i'd like to submit that letter that i referenced a moment ago for the
record. as the letter notes, senator widen has beenrequesting this information since 2011. the house judiciary committee and privacy groups have been requesting that information now for nearly two years. and members of the house of representatives were promised, i believe, by director clapper and director coates that the estimate would be forthcoming. so we have yet to receive that information. sounds like you certainly share my concern with the fact that notwithstanding those assurances and notwithstanding the public interest in this, there's no information yet. >> there's no information. but there was a lot of progress. under the previous administration, there were several meetings that theintelligence community had with house members, with members of civil society. they discussed methodologies. they were considering there was a tremendous amount of progress on this. and the letters from themembers of the house judiciary committee confirmed their understanding that the administration had
committed to providing that number in early 2017. hopefully by january, and, in fact, all accounts, public and prive, suggest they were on the vurj of launching that count towards it is end of last year. we had a change of administration and the government has now backed off of its commitment to provide thatinformation. >> thank you very much. thank you, mr. chairman. >> senator, i just have one question, it will be for miss collins. i believethat transparency and government leads to increased accountability. i suppose all of you believe
that too. one of your board's recommendations was to provide additional transparency surrounding how often nsa obtains and uses incidentally collected communication of our citizens. i also understand that in february 2016, the board described the recommendations as being implemented. so this is the question. the board's last report on this was about a year and a halfago. so can you walk us through the specifics of the five things the board recommended in this area and provide us an update regarding thestatus of implementation by the executive branch? >> when we did our report on section 702, we spent a lot of time on the issue of incidental u.s. person collection because it has both policy and constitutional implications. and we ultimately did identify five measuresdesigned to provide insight into incidental collection. and these are collectively reflected in recommendation nine of our report. it has been partially implemented. without getting into too many details, i can address this in further detail tomorrow in the classified briefing.
to the point, the recommendation aspects that involve telephone data are easier to implement. it's just more feasible. i am sympathetic to the arguments of the dni and the nsa, that there are operational hurdles. there are technological hurdles to providing some of the information that has been requested. i'm sympathetic that there are certain methodologyies that have been suggested that would increase privacyconcerns. but i would add my voice to those who urge the dni and the nsa to continue to find a way to provide some estimate of incidental u.s. person collection. >> i want to thank all of you for your participation and thank theaudience and all the staff that participated. we'll proceed -- we'll proceed some place online. thank you very much.
>> stock on c-span, a hearing on terrorist threats in europe. his, barry loudermilk on laws.led then, a hearing on reauthorizing the fisa law. >> c-span's washington journal, live it every day with news and policy issues that impact you. up, a discussion on the latest of the postponed senate health care replacement bill. the sure to watch c-span's washington journal tomorrow morning at 7:00 a.m. eastern. join the discussion. >> wednesday, nikki haley testifies before the house foreign affairs committee.