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.
In a recent article in The Washington Post, a scientist at Sun Microsystems, Susan Landau (sp), expressed concern that the new technologies that are being used in the broadening intelligence- gathering efforts themselves create a national security vulnerability and, to oversimplify her thesis, would actually provide a portal into the telecommunications stream that could be exploited by our enemies. The systems being used domestically, I assume, are likely to be the ones fielded abroad, but they will be U.S.-based.
So here's my question. Regarding NSA's surveillance systems abroad, has anyone other than the United States government ever been able to use those systems to their advantage?
MR. MCCONNELL: You mean the tools and techniques we would use abroad? Is that the question?
REP. LOFGREN: The systems that we are putting -- we have deployed abroad to accomplish this surveillance, have those systems ever been used by others to their advantage?
MR. MCCONNELL: Well, we have allies with which we share a lot of our collective effort.
REP. LOFGREN: Well, the question is not with our permission, but adversely.
MR. MCCONNELL: Others, other countries using similar techniques?
REP. LOFGREN: Or an enemy of ours. Has anyone been able to use those?
MR. MCCONNELL: There's evidence of other countries attempting to use similar collection techniques.
REP. LOFGREN: Has there been successful use by others of those systems to their advantage?
MR. MCCONNELL: Let me answer it to not say successful use of those systems because I'm not sure what you're referring to. But are others using electronic surveillance against the United States and its allies? The answer is yes.
REP. LOFGREN: Perhaps we can explore this further. I know we're going to have a closed session, and perhaps we can explore this issue further in that venue.
MR. MCCONNELL: Be happy to, ma'am.
REP. LOFGREN: I am -- I want to get back to the immunity issue. If no one has done anything illegal, it's not clear to me why we need to immunize past behavior. And it seems to me that at a minimum, if we are going to do that, we ought to know specifically what the behavior is that we are immunizing.
Are you prepared to let us know about that behavior either here or in another setting? For example, we understand that there are -- there was a period in March of 2004 where the administration proceeded in wiretapping without even an attorney general's authorization because both the attorney general and then-acting attorney general, Jim Comey, refused to certify the program. Are there other periods that we're going to be immunizing and other programs that we're going to be immunizing?
MR. MCCONNELL: To answer your first question, would we be willing to share what we're discussing, yes, we would, in closed session.
With regard to your question about 2004, I personally can't answer it because I wasn't in the government or I don't have any personal awareness. But maybe my colleagues know.
REP. LOFGREN: If you're suggesting that this would be better reported to us in closed session, that's an acceptable answer to me.
MR. MCCONNELL: Yes.
REP. LOFGREN: I don't want to do anything that would jeopardize our nation's security.
I have a question really about what started this issue, and it's something that troubles me a great deal. It's been referenced publicly that there was a decision by the FISA Court that reached the conclusion that you could not obtain information that was from a foreign source, a foreign -- from a person abroad to a person abroad that was merely routed through the United States, and I think there is 100 percent agreement in the Congress that that is something that we would want to remedy. I don't think there's a fight about that. But we've never seen the decision, and I wonder -- I think we should see the decision, and I wonder whether the decision is appealed and, you know, if it needs to be done in a confidential setting, I think that's fine. But to some extent we're being asked to buy a pig in a poke here, and I don't really think that is the role of the United States Congress.
MR. WAINSTEIN: Yeah, thanks for the question, Congresswoman.
I think we got to be careful about sort of putting too much of this on any particular FISA Court decision. The problem, as has been identified by a number of members here, is with the original statute, and then with the evolution of technology since the original statute was drafted. And as somebody has articulated it quite well earlier, you know, the problem is that you often -- well, you know where --
REP. LOFGREN: So the information we got earlier about this decision was not correct?
MR. WAINSTEIN: I'm not exactly sure what information you got, and I'm always a little reluctant to talk about what did or didn't happen in the FISA Court because, you know, much of that is very sensitive. But I guess, if I may, just for purposes of this debate, it's the statute itself that is the issue, and that's the problem.
REP. LOFGREN: Let me get back to the statute. I really think that if it's in a closed session or not, we ought to at least see this decision that's been discussed.
MR. WAINSTEIN: And I will tell you that we have discussed with a number of members in closed sessions various aspects of --
REP. LOFREN: Not me, and I've been to all the closed sessions I was invited to. So. I'd just like to focus in on 105(b), where -- and it's been talked about earlier, about surveillance "concerning" versus "directed at." And what is meant to be covered by the use of the word "concerning" as compared to "directed at"? It's a much broader description. Was it inadvertent or was it intended? And if intended, what was it -- what is intended?
MR. WAINSTEIN: Well, I will say I'm not sure exactly -- you know, because this put together with the input of very many people, so I can't sort of ascertain exactly what every sort of intent or rationale was underlying the selection of that word. I will say, though, that I'm not sure that actually it is that much broader than "directed at," if broader at all.
REP. LOFGREN: So then you wouldn't mind going back to the more traditional "directed at?"
MR. WAINSTEIN: Yeah -- I don't -- "concerning," by the way, was in our bill that we proposed back in April. So this wasn't something new that just got sort of sprung in this -- the PAA. We'd be perfectly happy to take a look at that.
I think that as I said, I think, earlier, I wouldn't be surprised if some of the dynamics here were that we needed to fill in some intelligence gap, we wanted to use a term which we knew would allow the intelligence community to fill that gap, and was concerned that any sort of perceived narrower terms might not allow us to do that.
REP. LOFGREN: My time's expired. I'll just say that I think the -- as you know, I'm sure, I did not vote for this act, because I don't -- it's either poorly drafted or it's intentionally drafted to be overbroad.
And I look forward to working with you because, as I say, there was unanimous agreement on solving the problem that you state. Not unanimous agreement on an expansion. And I yield back to the chairman and thank him for his indulgence, now that my light is on.
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