Hearing of the House Commitee on the Judiciary. Warrantless Surveillance and the Foreign Intelligence Surveillance Act.
Interview
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 (PART II)
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I'd like to begin by thanking Chairman Conyers for holding this hearing today. It is vitally important that we continue to examine the recently enacted White House bill that drastically alters the Foreign Intelligence Surveillance Act. The so-called Protect America Act was rushed through Congress just before the August recess and gives unnecessary license for the administration to wiretap Americans without court supervision and in my opinion to trash the Fourth Amendment.
And I'm particularly troubled by the administration's ongoing charm offensive. We have seen similar campaigns raised during other controversial and overbroad programs: the Patriot Act, the national security letter authority and Military Commissions Act and others. Just last week, the director of National Intelligence, Michael McConnell, had to retract earlier statements that the act helped German authorities thwart a suspected terrorist plot earlier this month. Also, Assistant Attorney General Kenneth Wainstein wrote lawmakers to say the act does not authorize physical searches of homes, domestic mail or people's personal effects and computers.
Let's have some truth in advertising. The act is the president's almost unfettered powers to spy without judicial approval not only on foreigners, but on Americans. The National Security Agency is not permitted without a warrant to access virtually all international communications of Americans with anyone outside the U.S. so long as the government maintains that the surveillance is directed at people, including citizens who are reasonably believed to be located outside the United States -- not reasonably believed to be terrorists or in communication with any foreign power, but simply to be outside the United States.
I, for one, have little confidence in what this administration may consider reasonable in any event. We must not forget the lessons of history, that the Fourth Amendment and the Foreign Intelligence Surveillance Act were responsive to abuses by government officials who thought they were above the law. We all agree that we want to protect our national security and that foreign intelligence gathering is fundamentally different than domestic surveillance. We should, however, also agree that the power to invade people's privacy must not be exercised unchecked.
As we consider how to take the Protect America Act, we must restore the fundamental freedoms that have been lost because of our recklessness. We must focus surveillance on terrorist activity and provide meaningful court review to protect the rights of Americans who will be spied on in our country. We must not trust this or any other administration to police itself. We must act now to restore much needed checks and balances into this damaged law. We must restore respect for our Constitution that this administration obviously does not care about.
Thank you. I yield back the balance of my time. (Cheers, applause.)
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Director McConnell, in a number of interviews that you've given, as well as in speaking to us, you've said that it takes about 200 hours -- that the objection to getting a FISA warrant is that it takes about 200 hours to do each FISA Court application for each phone number.
Is that correct?
MR. MCCONNELL: Yes, sir. At a summary level, that's correct.
REP. NADLER: Thank you.
In the letter that Chairman Conyers and Mr. Scott and I sent to you on September 11th, we pointed out that if this is true, this would mean that more than 436,000 hours were spent on FISA applications in 2006, and you were asked specifically when you still stand by that 200 hours assertion. Your response, which we received this morning, frankly, evaded that question and simply asserted that your point was that significant resources shouldn't be devoted to FISA applications.
So I ask you now, do you stand by the claim that it takes 200 hours to do each --
MR. MCCONNELL: I do, and it's because of the complex nature of the process. First, an analyst --
REP. NADLER: All right, so you stand by that.
MR. MCCONNELL: -- (off mike) -- and then so on.
REP. NADLER: Now, this morning in the Intelligence Committee about two hours ago, the former -- or current director of the FISA program, a Mr. Baker, testified that there's -- that basically his -- that essentially contradicted that.
He essentially, when he says -- and I'm getting this secondhand from a member of the committee -- essentially what he -- the record will show exactly what he said, obviously. But essentially what he said was that the legal preparation of the warrant is ready and waiting by the time the information that has to be gathered to figure out -- when the fact that within the executive branch, a process is filed to put together much of the same information given to the FISA Court in order to determine to begin surveillance even when no warrant is set and that the work to get the warrant is not much extra work, and that they're usually ready at the same time.
MR. MCCONNELL: On occasion that's true, and sometimes it's -- oftentimes it's not true, particularly if it's new --
REP. NADLER: You said it was normally true. You said it was almost, in fact, usually true. So if that's usually true, then how could it require the 200 hours? Because what he was saying is that the -- most of the work that has to be done has to be done whether you need a warrant or not -- at least to identify it.
MR. MCCONNELL: And -- I'm sorry. What's the question, sir?
REP. NADLER: The question is, if it is the case, as he apparently testified this morning, that most of the work that you say goes into this 200 hours for the warrant has to be done whether you need a warrant or not just to identify -- to identify what you want to wiretap, to identify the target, and that the extra -- and that the work required for the warrant is simply a little extra, then how can it be -- then it's clearly not -- I mean, what he said essentially is it's not much extra work, so then what to be done in any event?
MR. MCCONNELL: I'd just disagree with him, having done it, having been the director of NSA and worked the problem. Some of what he said is true. But when I say 200 man-hours, I'm talking about the entire process.
REP. NADLER: But the entire process has to be done with or without the warrant requirement.
MR. MCCONNELL: No, no, no.
REP. NADLER: Most of that has to be done with or without --
MR. MCCONNELL: No, not at all.
REP. NADLER: Well, that was his testimony this morning; he headed the program.
MR. MCCONNELL: I was the director of NSA, not him, so I could tell you that from the standpoint of conducting the operation, when you're doing foreign surveillance -- remember, in the foreign context and you have new information to process or to chase or target, it's just a matter of doing it. And it -- when it's a foreign context -- in other words, you have to stop and consider a warrant and so on, it presents you with a pretty formidable process to work through.
Now, Ben Powell, who's sitting on my right, just recently looked at this. Let me ask him to comment on his most recent review.
BEN POWELL: You know, I would disagree that in -- there's any comparison to what we go through to target foreign intelligence targets and what we go through to put information together with the -- for the FISA Court.
When we're targeting foreign intelligence targets, the analysts have to determine that there's a valid foreign intelligence target and a requirement is out there for putting that person on coverage. To go through the FISA process is frequently a very long-term process that requires putting together packages of frequently-resembled finished intelligence products describing who the person is, what --
REP. NADLER: And so the essence of your testimony is contrary to what we heard in the -- when -- I wasn't there -- what was heard this morning in the Intel Committee, that there's substantial extra work beyond what would be done if you don't need a warrant.
MR. POWELL: If that's the correct testimony -- I will say that Mr. Baker's very knowledgeable in this area. So I feel like we're missing something extra he must have said, because he's certainly very knowledgeable --
REP. NADLER: Like I said, I got this from a member of the committee. I wasn't here. I presume that that was correct.
Let me ask you this. You said basically that the danger that we are talking about in targeting foreign people -- now, again, everybody agrees that foreign-to-foreign is -- should be covered, you know, without a -- should not be covered, rather, by FISA.
MR. MCCONNELL: Can I clarify? Can I --
REP. NADLER: Everybody agrees to that. So I'm not going to -- I don't want to talk about that.
The question I want to ask --
MR. MCCONNELL: No, but the term foreign-to-foreign is -- that's what confuses --
REP. NADLER: I understand. Foreign-to-foreign, whether the electrons come through the United States or not --
MR. MCCONNELL: No, no, that's not the point. The point is, if you have to predetermine it's foreign-to-foreign before you do it, it's impossible. That's the point. You can only target one. It's --
REP. NADLER: All right. I hear that.
MR. MCCONNELL: The issue is, who is the target, and where are they?
REP. NADLER: I hear that. The question I'm trying to ask, though, is, under FISA, under the existing -- pre- -- new FISA -- under the FISA as it existed three months ago --
MR./REP. : The old FISA.
REP. NADLER: -- if -- you had to -- if you determined -- my understanding is, if you determined that somebody abroad -- you needed a -- did you need a warrant? Let me ask you: Did you need a warrant to determine that someone abroad was in fact an agent of a foreign power? Or could you make that determination for yourself, if he was communicating into the United States?
MR. MCCONNELL: You could make the determination, but let me just make it very specific. If Osama bin Laden in Pakistan calls somebody in Singapore, and it passed through the United States --
REP. NADLER: That has been --
MR. MCCONNELL: -- they had to have a warrant.
REP. NADLER: Yeah, but no one objects to changing that. My question was, if someone in Pakistan calls someone in the United States --
MR. MCCONNELL: Yes.
REP. NADLER: -- you want a warrant to target the guy in Pakistan, do you need -- did you need --
MR. MCCONNELL: No, I don't want a warrant to target the guy in Pakistan.
REP. NADLER: No, no, did you need a warrant under traditional FISA?
MR. MCCONNELL: Under traditional FISA, if -- no, I did not.
REP. NADLER: You did not.
I see my time has expired. Thank you.
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