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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Thank you, Mr. Chairman. And I appreciate your holding these hearings on warrantless surveillance under the Foreign Intelligence Surveillance Act.

Because of the department's refusal to respond to questions for information, we've been stymied in conducting meaningful oversight in this area. At the same time, we find out crucial details about the program through media reports. So there's a sense that there is now no transparency and virtually no checks and balances on the administration's discretion on who or what is the subject of warrantless surveillance. There's never been any controversy over overseas surveillance. You do not need any oversight for that, no warrant, and if technical amendments are needed to clarify that, then those amendments would not be controversial.

But now, based on the administration's own certification, it is free to intercept communications believed to be from outside of the United States into the United States and possibly even, because of ambiguities of the law, even domestic calls if they concern someone outside of the United States and they involve any vague notion of foreign intelligence.

At a hearing earlier this month, we discovered the expansive nature of the bill -- any communications that are concerning the foreign target could be fair game. And foreign intelligence -- the term "foreign intelligence" does not mean "terrorism"; it could mean almost anything of interest to foreign affairs, including trade deals, for example.

Finally, the standard the government has to meet to engage in such data mining is the acquisition of information as to be a significant justification for the invasive surveillance techniques not through traditional primary justification. So if the Department of Justice wiretaps when foreign intelligence is just a significant purpose and not the primary purpose, you have to wonder what the primary purpose could be, particularly in light of the fact that the administration has not credibly responded to allegations of partisan politics involved in criminal prosecutions.

I want to emphasize that this is not a question of balancing rights and liberties versus security. The Department of Justice had wide latitude to conduct surveillance under FISA before this statute was amended by the Protect America Act. Virtually all of the department's FISA applications have been approved. There's even an emergency exception to provide for warrants after the fact. The requirement of a FISA warrant does not prevent a wiretap. There's nothing you can do under the (New Protect ?) Act that you couldn't already do; you just needed FISA oversight beforehand, and if you're in a hurry, you can get it after the fact.

Now, without adequate court review, the Department of Justice no longer has to explain or justify how it treats phone calls or e-mails of persons in the U.S. when they are intercepted. This debate is more about complying with the law than it is about maintaining security. Restoring meaningful court oversight will give the public confidence that the Department of Justice is complying with the law.

Thank you, Mr. Chairman.

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Admiral, we've had some confusion on when something is classified and when it is not. Is there some process that delineates when something is classified and when it is not classified? We've had testimony here of things that are classified, and then you read it in the paper. Does it become declassified just because you've said it or is there some process to declassify?

MR. MCCONNELL: Well, there is a process, but it's ultimately a judgment call.

REP. SCOTT: Well, it's a judgment call, but I mean is there some -- do we know -- when does it become declassified, is that when you just decide on the spot to blurt it out to a reporter?

MR. MCCONNELL: No, not at all.

REP. SCOTT: Is there some process?

MR. MCCONNELL: There is a process, but as I say, it's ultimately the responsibility of the president to --

REP. SCOTT: But there is a process so we know when something was declassified the moment of time it was declassified, and is there some record of that?

MR. MCCONNELL: Not specifically that I'm aware of. I'm sure it can be recovered in some way if there's a specific concern or question.

REP. SCOTT: You've said that the old law prevented you from getting intelligence and mentioned specifically conversations between al Qaeda from overseas talking to people within the United States, and now that it -- now it is legal to intercept those communications.

If it is legal now, why couldn't you have intercepted those conversations with a FISA warrant, a FISA warrant obtained before or after the fact if you're in a hurry?

MR. MCCONNELL: The issue becomes volume and ability to keep pace. We could have targeted communications of al Qaeda except when it touches wire in the United States. That was the technical issue --

REP. SCOTT: Wait a minute. You have to get a warrant to get that. You just couldn't do it without a warrant.

MR. MCCONNELL: Yes, sir. But what you've just now said is now you're requiring us to have a warrant for a foreign target in a foreign country.

So the issue is, there are lots of targets, and so it would (mean we ?) couldn't keep up.

REP. SCOTT: You are not -- so you just say it's a paperwork problem, it's not a prohibition --

MR. MCCONNELL: No, it's a practical problem.

REP. SCOTT: But you can get that -- you could get that information --

MR. MCCONNELL: No, sir, I cannot. Think about foreign intelligence. I mean, there are thousands, potentially millions of potential targets of interest. So the process just couldn't turn fast enough if we were required to get a warrant for every one.

REP. SCOTT: And if you felt you needed some information, even the after-the-fact warrant would not solve that problem.

MR. MCCONNELL: Would not, no, sir.

MR. POWELL: And if I could add, you would also not -- you would not just make the showing that it's a valid foreign intelligence target, that we do in our foreign intelligence collection. Under FISA, you would have to be making a probable cause showing concerning that foreign person overseas. So it is not the case that in every situation where we had a valid foreign intelligence target, we would make our probable cause showing to the FISA Court. It is not the case that in any sense we could do that for every valid foreign intelligence target --

REP. SCOTT: So anybody overseas, you don't have to make any ascertainment about who they are; any call into the United States, you can listen to.

MR. MCCONNELL: Foreign, yes, sir. If it's a legitimate foreign intelligence target. I mean, that's --

REP. SCOTT: Well, wait a minute. You just said you didn't -- it's not a target, it's just somebody.

MR. MCCONNELL: Well, let's insert some practicality here.

REP. SCOTT: If you practically target somebody as a terrorist overseas, there's no problem -- there's no legal impediment to you getting a warrant to who they're calling.

MR. MCCONNELL: Now under the new act, that's correct. Under the old act, there was.

REP. SCOTT: Under the old act, you could get a warrant.

MR. MCCONNELL: I could get a warrant, that's correct. The issue was, I was required to get a warrant.

REP. SCOTT: Okay. You just need a little more paperwork. Okay. Now --

MR. MCCONNELL: I wouldn't characterize it a little more paperwork.

REP. SCOTT: The Section 105(b) authorizes you to get foreign intelligence information "concerning." Now, the word in the Section 105(a) is "directed at a person"; in 105(b), it's "concerning persons" believed to be outside the United States. That's a different word. And why wouldn't we conclude that it's supposed to have a different meaning, that the subject matter of the conversation is concerning a person to be outside the United States?

MR. MCCONNELL: Sir, that is complex. I'm going to have counsel to respond over the reasons for the choice of words. From my perspective, we want to be effective, so if there's a better word, I'd be happy to consider it. But let me ask counsel to respond to your specific question.

MR. WAINSTEIN: In terms of the actual drafting, sort of whose idea it was and actually what rationale there was for putting that in there, I can't speak to that myself. But I think that when you look at it, you realize that given the circumstances under which this was actually drafted, it was intended to allow us to fill intelligence gaps.

REP. SCOTT: Well, let me just -- and I'm running out of time. "Acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States." Now, the gentleman from California went to great lengths to say you have to have it in context with all these other laws. Unfortunately, Section 105(b) starts out with the phrase, "Notwithstanding any other law." Now you say you authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States."

Now, why couldn't we conclude somebody calling -- two people in the United States talking to each other about Tony Blair, concerning a person who's believed to be outside the United States, why shouldn't we conclude that you're trying to get into that conversation without a warrant?

MR. WAINSTEIN: Well, that's the point that Congressman Lungren made, which is that the rest of FISA, the rest of the definition of FISA --

REP. SCOTT: No, how -- "notwithstanding any other law" starts off that section --

MR. WAINSTEIN: It --

REP. LUNGREN: Would the gentleman yield on that point?

REP. SCOTT: It cancels out all that --

REP. LUNGREN: Would the gentleman yield on that point?

REP. SCOTT: I'll yield.

REP. LUNGREN: If it said, "Notwithstanding any other section of this law," I think your point would be valid. It says, "Notwithstanding any other law," provision of law. It still is within the context of FISA.

REP. SCOTT: Well, "Notwithstanding any other law," authorized acquisition of foreign intelligence information, certain -- these words mean something, and you pointed out that they're -- you intentionally chose different words. It's not directed at a person reasonably believed to be outside -- located outside the United States. It's concerning persons reasonably believed to be outside the United States.

MR. WAINSTEIN: Yes --

REP. SCOTT: Now, would that include, say, a conversation -- suppose you have a war protester in Iraq calling a war protester in the United States. That's foreign intelligence, isn't it?

MR. WAINSTEIN: Well --

REP. SCOTT: Is that foreign intelligence?

MR. WAINSTEIN: No --

MR. POWELL: If it's a war -- we're prohibited from doing anything solely on the basis of activities prohibited by the First Amendment. That's a bedrock principle of the intelligence community operations -- war protester --

REP. SCOTT: Where is that in here? Where is that in here?

MR. POWELL: That has been a bedrock principle of the intelligence community. That's in Executive Order 12333. That is in the National Security Act. That's a bedrock principle that's part of every person's training in the intelligence community. A war protester exercising their first amendment right is not a valid foreign intelligence target.

And if it I may answer the other hypothetical involving the "notwithstanding any other law," if you read the conditions under which certifications may be made within that section, we have to certify that the acquisition does not constitute electronic surveillance. Electronic surveillance, as defined in the act, remains the same. If the sender and intended recipient are both within the United States, we are required to get a court order.

That would remain electronic surveillance.

REP. SCOTT: Is that --

MR. POWELL: That's the specific reason why in this provision it says that they can only certify it when the acquisition does not constitute electronic surveillance --

REP. SCOTT: Does that include e-mails? Does that include e- mails?

MR. POWELL: The acquisition does not -- I don't think that -- it's communications, foreign intelligence information, that cannot constitute electronic surveillance.

REP. SCOTT: Is an e-mail --

MR. POWELL: So domestic communication captured -- it would be included.

REP. SCOTT: Is an e-mail included in the exclusion?

MR./REP. : We need to make that more clear. That's not clear --

REP. SCOTT: Can you get an e-mail, domestic-to-domestic, talking about someone outside of the United States?

MR. POWELL: That -- I believe that would constitute electronic surveillance --

MR. MCCONNELL (?): Require a warrant.

MR. POWELL: -- and require a court order.

REP. CONYERS: The gentleman's time has expired.

MR. : May I just add one thing? Mr. Chairman, just to follow on to your question about the exercise of First Amendment rights, in FISA, actually, Section 1805, it says the target of electronic surveillance -- we have to show the target of electronic surveillance is a foreign power, provided that no U.S. person is considered a foreign power or an agent of the foreign power solely upon the basis of activities protected by the First Amendment of the Constitution of the United States.

REP. SCOTT: Well, but you're not -- you don't have to be a foreign power, because you just have to be outside of the United States.

MR. : Yes. You were asking about where that provision is. That's actually in the original FISA. When it talks about our showing of somebody being a foreign power, that's only --

REP. SCOTT: Well, you're not getting a warrant under FISA. You're just designating somebody out of the country, calling in. And the question is whether you can pick up some foreign intelligence.

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