Hearing of the House Committee on the Judiciary - Warrantless Surveillance and the Foreign Intelligence Surveillance Act

Statement

HEARING OF THE HOUSE COMMITTEE ON THE JUDICIARY
SUBJECT: WARRANTLESS SURVEILLANCE AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT: THE ROLE OF CHECKS AND BALANCES IN PROTECTING AMERICANS' PRIVACY RIGHTS
CHAIRED BY: REP. JOHN CONYERS (D-MI)
WITNESSES: BOB BARR, FORMER U.S. HOUSE REP.; SUZANNE SPAULDING, FORMER CIA ASSISTANT GENERAL COUNSEL; PROFESSOR ROBERT TURNER, UNIVERSITY OF VIRGINIA LAW SCHOOL; MORT HALPERIN, OPEN SOCIETY INSTITUTE

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REP. ROBERT C. SCOTT (D-VA): Thank you, Mr. Chairman, and I appreciate your holding this hearing on warrantless surveillance under the Foreign Intelligence Surveillance Act or FISA.

Because of the Department of Justice's refusal to respond to requests for information, we've been stymied in conducting meaningful oversight with respect to the administration's warrantless surveillance and have been prevented from serving as an independent check on abuses by the president and the National Security Agency. And so as it stands now, there are virtually no checks and balances on the administration's discretion on who and what subjects -- and who or what is subject to warrantless surveillance.

Now there's never been any controversy over overseas surveillance. You don't need any oversight for that. They can do what they want. But now, based on the administration's own certification, the administration is now free to intercept communications believed to be from outside the United States into the United States and possibly even, because of ambiguities in the law, domestic calls that involve any vague notion of foreign intelligence.

Now that's not terrorism. Foreign intelligence includes information regarding trade deals or international politics or any kind of diplomacy. And the standard the government has to meet to engage in such data mining is that the acquisition of the information has to be a significant justification for the invasion of -- invasive surveillance techniques, not the traditional primary justification.

Now the Department of Justice has not credibly refuted the allegations that United States attorneys were fired because they failed to pursue -- to use the criminal justice process to pursue partisan political agendas. So now, if the Department of Justice wiretaps -- when foreign intelligence is just a significant purpose and not the primary purpose, you wonder what the primary purpose may be.

Now let's be clear. This is not a question of balancing rights and liberties versus security. The requirement the Department of Justice has to essentially notify the FISA court of its surveillance activities in no way restricts what it can do. There's even an emergency exception. If they're in a hurry they can get the warrant after the fact. But meaningful FISA oversight will give the public confidence that the Department of Justice is complying with the law.

Thank you, Mr. Chairman, and I appreciate the fact that you're holding this hearing.

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REP. ROBERT C. SCOTT (D-VA): Thank you, Mr. Chairman.

I thank all of our witnesses for their testimony.

Ms. Spaulding, you mentioned the new act at the word "concerning" in 105B. 105A says, "encompass surveillance directed at a person reasonably believed to be located outside the United States." But Section B says, "acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States." Can you restate what you think that difference in wording might mean?

MS. SPAULDING: Well, I -- it's -- it seems to me that Section 105A, in redefining electronic surveillance, when it uses the words "directed at," it means targeting. It means that that is the focus of your surveillance. That is where you are directing your interest, as opposed to at the other parties with whom that target may be communicating.

"Concerning persons" -- if they had meant the exact same thing, if they had meant "targeting persons," I think they would have used the words "directed at." "Concerning persons" means something different, then. And I think it means it's merely -- the communication merely mentions or is about, even just in part, someone who happens to be outside the United States. And that's a far different matter.

REP. SCOTT: Okay. If the communication is concerning someone outside, could that include communications domestic to domestic?

MS. SPAULDING: Absolutely.

REP. SCOTT: And do you think that -- because we don't hear that mentioned very often -- and these two words, as I have noticed, as you have -- different words must mean different things.

MS. SPAULDING: I would note that when we talk about communications between two individuals inside the United States potentially coming within the scope of 105B, there is a requirement that it not be electronic surveillance --

REP. SCOTT: So you think --

MS. SPAULDING: -- which is why in my testimony I refer to letters or potentially stored e-mails, things that do not fall within the existing definition of electronic surveillance.

REP. SCOTT: And you also mention that foreign intelligence -- we keep hearing an al Qaeda member calling inside -- but foreign intelligence includes more than terrorism. Does it not?

MS. SPAULDING: Absolutely. It's a very broad definition, one that's been broadened over the years.

REP. SCOTT: And what kinds of things might be foreign intelligence?

MS. SPAULDING: Really almost anything of interest to the foreign affairs and national defense of the United States. In fact, most recently it was broadened to include information that is at all relevant to a -- to potential sabotage or attack in the United States. So that might mean, for example --

REP. SCOTT: What -- that's terrorism. What about a trade deal?

MS. SPAULDING: Well, it obviously includes trade deals. It includes all of the things that you think about the intelligence community monitoring and being interested in. And now they've added to their agenda global climate change; they've long been interested in trade issues. There's a wide range of information --

REP. SCOTT: So if you're negotiating a global warming agreement with another country, that would constitute foreign intelligence?

MS. SPAULDING: It might constitute foreign intelligence.

REP. SCOTT: There's another little change here where it says, "significant purpose." That's not the primary purpose. If the primary purpose is not foreign -- not even foreign intelligence, what could the primary purpose be?

MS. SPAULDING: The primary purpose could be anything that is presumably constitutional. I mean, I think it would be limited, clearly, by the constitutional framework. But it --

REP. SCOTT: Partisan politics?

MS. SPAULDING: It could be -- certainly we know that it could be criminal prosecution.

REP. SCOTT: Without probable cause -- crime?

MS. SPAULDING: It could be suspicion of, you know, subversion, which we know has been interpreted in ways that have proven very harmful in the past.

REP. SCOTT: Now, Mr. Barr, is there anything under FISA that you can't do -- that you could do if he didn't have to worry about FISA, or does FISA just require you to let the court know what you're doing?

MR. BARR: Well, FISA, under the very words of the statute and the way it's been interpreted over the years, is intended to and encompasses electronic surveillance for foreign intelligence purposes. So if in fact that is, you know, the universe of information or persons involved in that you're trying to gather evidence or information from, on or about, then FISA covers that. Now, does that mean there isn't overlap with other areas --

REP. SCOTT: We keep talking about balancing security and liberties -- in fact, there's no balance at all, because you can do any kind of wiretap you want under FISA, you just have to notify the court. Or without FISA you just go ahead and do it. But if it's legal you can go ahead -- there is no restriction on security created by the required need to go to the FISA court, is there?

MR. BARR: And -- that is correct -- and that problem is made manifestly worse by the law that was signed one month ago.

REP. SCOTT: And that is just on the -- essentially the attorney general and the DI -- the director of intelligence -- can just authorize it?

MR. BARR: Without any review by the courts at all.

REP. SCOTT: Thank you, Mr. Chairman.

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REP. ZOE LOFGREN (D-CA): Thank you, Mr. Chairman.

Before I ask my questions I'd like to yield -- he said five seconds, but we won't be strict on that -- to Mr. Scott for a point that he wanted to make.

REP. SCOTT: Thank you.

And I appreciate you for yielding, because some people try to suggest that the requirement to get a FISA warrant means you can't listen to the conversation. You can listen to the conversation, you just have to get FISA warrant. So when you say these -- listening to al Qaeda -- if you've got a FISA warrant, you can't listen -- of course you can listen.

Thank you.

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