Hearing of the House Permanent Select Committee on Intelligence Subject: The Foreign Intelligence Surveillance Act and the Protect America Act

Interview

HEARING OF THE HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
SUBJECT: THE FOREIGN INTELLIGENCE SURVEILLANCE ACT AND THE PROTECT AMERICA ACT

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REP. JAN SCHAKOWSKY (D-IL): Thank you, Mr. Chairman.

I wanted to talk about some of the specific language, particularly -- and I know it's been touched on -- the word "concerning" and the word "acquisition."

In the letter from Mr. Weinstein, he dismisses the concerns about these, and we also heard Mr. Baker testify that there are times when the limits are pushed as far as they can go. They're dismissed in his letter by saying, first, "Most of the hypotheticals we've heard are inconsistent with the plain language of the Protect America Act and the rest of the FISA statue."

So, I wanted to know, one, if the language -- and I'm asking Mr. Dempsey and Ms. Graves if the language is as clear as he said.

And second, "We commit that we will not use the statue to undertake intelligence activities that extend beyond the clear purpose of the statute." Again, I hear what you're saying.

You said, Mr. Baker, about the promise, but it also -- and its impact -- but it also seems like a new letter could change that.

And third, "We'll apply the statute in full view of congressional oversight, as we intend to provide Congress with the consistent and comprehensive insight into our implementation and use this authority," and what your feeling is about that, since we have not been able to get even the basic information about the formulation of this law.

So how much confidence should we have in these assurances?

MR. DEMPSEY: You know, one interesting thing to ask the administration and really put to the test what the PAA is all about is to ask the administration would it meet their needs if 105B said "a program to authorize the acquisition of foreign intelligence by intentionally targeting the communications of a person reasonably believed to be overseas." That's what they talk about, but that's not what it says. What's the gap between a program of surveillance reasonably designed to collect the communications of persons believed to be overseas versus "intelligence information concerning?"

REP. SCHAKOWSKY: So you would suggest that language being preferable to the one that it contains "concerning" -- that it would be clearer.

MR. DEMPSEY: Yes, I think -- I mean, I'm not saying that that would be enough, but I think that certainly helps put to the test what we're talking about here: Are we targeting persons reasonably believed to be overseas?

REP. SCHAKOWSKY: So you're saying that it is not -- the plain language isn't clear enough.

MR. DEMPSEY: Absolutely not. I mean, we have all kinds of words here that appear nowhere else in the statute and are undefined.

MS. GRAVES: I think that I can answer your three questions very clearly.

First of all, the language isn't clear, and I think you can see that if you compare what was announced as the Rockefeller-Reyes proposal that subsequently became the proposal of the chairman and Mr. Conyers. They refused to confine the power to electronic surveillance. They insisted upon having acquisition, not electronic surveillance, even as in 3356. They insisted on instituting "not withstanding any other law," meaning it blows all the other laws basically off the books, whether it's a pen register rule, whether it's -- (inaudible) -- on the stored communication records. They insisted upon it not being targeted or requiring that the orders that are involved be directed at a particular person or particular facility.

I think the language is exceedingly broad and is unacceptable. I think that the commitment not to interpret it the way the law would permit -- the plain language -- while nice, is not sufficient, especially in the aftermath of Mr. Yoo's memos, reinterpreting previous laws over a period at the Justice Department, and certainly not in the aftermath -- on your third question -- or certainly not in the aftermath of assertions that they will have -- you will have full view through congressional oversight, when in fact you haven't received the documents that you've requested.

And so I would say notwithstanding the assertions in a letter by an assistant attorney general, the law is what matters and the law is what will stand for the coming years, and the law -- tailoring that law to the particular problems is the responsibility of Congress, not the Justice Department and not an assistant attorney general.

REP. SCHAKOWSKY: Do you think that the collection of business records of individuals could be authorized by this law?

MS. GRAVES: I think that it's very clear the way they describe stored records -- whether records as they're transmitted or stored, if they're electronic in form -- which includes a range of records -- business records, phone records -- I think it's very clear -- the language is very clear on that point that they intend to have access to them through orders issued unilaterally by the government without any oversight by the court.

REP. SCHAKOWSKY: And do you feel comforted by the comment by the line in Mr. Wainstein's letter that says, "We wish to make very clear that we will not use this provision to do so"?

MS. GRAVES: Well, I believe that the paragraph before that talks about not using it for library records or not using it for particular financial records. It's not actually a global disavowal of that power, and in fact, the language itself -- the Stored Records Communication Act -- people who've litigated it and worked on it know that it reaches very broadly, and I think that his declaiming library records in the aftermath of the library controversy with the Patriot Act is insufficient, and regardless of his assertions, it's the law that matters, not his interpretation of it.

REP. SCHAKOWSKY: Mr. Dempsey?

MR. DEMPSEY: I don't know if Mr. Baker is able to comment upon this now, but I'd be interested in his answer to the question, how did the government under FISA deal with access to stored e-mail?

REP. SCHAKOWSKY: I'll ask that.

MR. BAKER: How do we collect it? I'm not sure what the question is.

REP. SCHAKOWSKY: Did you have access to stored records under FISA? Was it interpreted in that way?

MR. DEMPSEY: Stored e-mail.

REP. SCHAKOWSKY: Stored e-mail?

MR. BAKER: Well, there's stored records and there's stored e- mail. I mean, you made a reference to the business records. There's a business records provision that allows you to obtain a variety of materials, any tangible thing, and then there's also FISA -- we can conduct electronic surveillance and physical search of electronic mail, so we would do it -- depending on the circumstances, you do one or the other. So you could conduct a search for certain types of stored e-mail and you might do something that might be construed as electronic surveillance in other contexts.

So the answer is -- as I said in my testimony, there are no forms of modern communications that we couldn't get to under the regular FISA.

REP. SCHAKOWSKY: Thank you.

MR. DEMPSEY: I think what that means is --

MR. RIVKIN: I would love to jump in for --

REP. SCHAKOWSKY: Okay, Mr. Dempsey, start, and then -- go ahead.

MR. DEMPSEY: I think what that means, then, is that access to stored e-mail through a physical search is not electronic surveillance; therefore, it falls under 105B, and so in addition to the physical search authority, which requires a court order, 105B authorizes acquisition to stored e-mail without a court order. That's a major change.

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