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. 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.

REP. LOFGREN: Reclaiming my time, I would just like to ask Mr. Barr -- and it's good to have you back in this committee room; it's -- I read through your testimony and I see this quite similarly to the way you do. And I remember the years we served here on the committee we didn't always see every issue the same way, but often on constitutional issues we did. And I find that that is once again the case.

You mention that the -- and I agree with you, I think we made this point quite clearly -- that changes that would allow for the capture of communications from someone in a foreign country to someone in another foreign country that was routed, technologically, through the U.S., there's no problem with that. I think there's, like, almost unanimous agreement that that should not be precluded. And he wouldn't need a FISA warrant -- you shouldn't need a FISA warrant because the people that you're tapping are abroad.

However, supposedly there was a court decision that required a change in the law. It's a mysterious court decision. How much do we -- do you know what's in that court decision? Have you -- I haven't seen, and it's not been permitted to see it.

MR. BARR: It's very interesting because in the very interview that the ranking member and I were discussing with DNI Director Mike McConnell he apparently knows -- as he should -- a great deal about it and actually discussed it, even though it's my understanding that the order -- or the opinion -- remains classified.

So it raises in my mind an interesting question about discussing classified information. But no, I don't -- none of us do. I certainly haven't seen it. And I'm not absolutely certain, therefore -- and I don't think we ought to presume that it's necessarily a good decision. We'd want to see it. I would think the committee would want to see it.

REP. LOFGREN: You suggest that we should have more vigorous oversight in this activity. I very much agree. And one of the things that I think has been a tremendous improvement in the 110th Congress is that the Judiciary Committee is now involved in this; it's not just the Intelligence Committee. And we have our own backgrounds and set of skills to bring to this debate to enhance what the Intelligence Committee is doing.

I think -- and I'm pleased, Mr. Chairman, there we're going to have some classified hearings. And I'm hopeful that one element of that might be a review of the actual decision that supposedly set this whole circumstances on its merry way. And if the DNI can talk about it on TV, I would assume that members of Congress, who've signed an oath never to reveal classified information, would be able to review it in a classified setting.

Now, for Ms. Spaulding, one of the things you mention in your testimony has to do with the technology. And there was a point that I made on the floor and with my colleagues that for telecommunications, you know where calls are being initiated -- at least you know enough to get the bill for them -- and so presumably you wouldn't have the kind of rampant inadvertence that is referred to in terms of how would you ever know if the call is being initiated here or there.

I -- you know, one of the concerns that I had is that we didn't have any technology experts with us to go -- to inform us. We had a lot of constitutional lawyers in the Congress, not that many technological whiz people. Have -- do you know whether any technology experts have really reviewed the statute? I've been reaching out to some in Silicon Valley. Have you been able to discover expertise that we could tap into on that aspect of this?

MS. SPAULDING: First, I want to applaud you for reaching out to the technology experts outside the government. As I said in my testimony, I think that's vitally important. And I do think that technology allows us to narrow significantly that group of communications for which we don't know.

And I think one of the greatest challenges, I would say, in that regard is less phone calls than it is potentially either e-mail or -- oftentimes what terrorists will do is draft e-mail but not send it and save it as a draft. And then the intended recipient simply logs on as that user and goes to the saved draft file, for example. And you can know the nationality, potentially, of the person who -- so I think there are examples where it's extremely difficult, if not impossible, to know where the recipient of a communication resides. But I think it's a very narrow group of -- band of communications and technology experts can help us.

Kim Taipale is somebody -- I'm not sure I'm pronouncing his last name correctly -- is someone who has look very carefully at both the technology and the law, and I would certainly recommend that you talk with him.

REP. LOFGREN: Thank you, Mr. Chairman. My time has expired.

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