Hearing of the House Committee 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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REP. TAMMY BALDWIN (D-WI): Thank you, Mr. Chairman. And thank you to our patient witnesses.

Rule 10 of the rules of the House of Representatives sets forth the jurisdiction of the various standing committees and also sets forth their general oversight responsibilities. And the Judiciary Committee has, within its jurisdiction, many elements, but including the judiciary and judicial proceedings, civil liberties and the federal courts.

But I have to tell you, and I'm sure it won't come as any surprise, that it is very challenging and often frustrating to thoroughly oversee a program, many details of which are classified and must be. I certainly understand that. And it's even more challenging -- in fact, sometimes impossible -- to oversee secret programs, the existence of which Congress doesn't even know about.

So I just wanted to ask a few, I hope, general questions to help me satisfy myself that the scope of our current FISA oversight is adequate. Now, we know today that in the weeks following the September 11th attacks in 2001, the president signed an executive order setting up a secret surveillance program known as TSP, the Terrorist Surveillance Program. And this, of course, has come to light in a very public way over the last couple of years.

And I wonder if you are familiar with the executive order in its entirety that set up that program, Mr. McConnell. Admiral, yes.

MR. MCCONNELL: I am not. When I was -- (inaudible) -- nomination was being considered, it was in the first week in January. And as I was going through the process, the decision was made to take the entire program and submit it to the FISA court. So I've heard stories and I'm generally aware, but I've focused all my time on the period with the FISA court. And my focus has been getting us to a point where we were doing foreign surveillance but we had the right kind of process for warrants and that sort of thing. So I don't know as much about the past.

REP. BALDWIN: Okay. So this is exactly, I think, a point that I want to make sure that I understand. You came in January 2007. At that point in time there had been agreement that they were to take TSP and put it under -- it would comply fully with FISA.

Are you aware that there were any other parts of that original executive order setting up the Terrorist Surveillance Program that were still going to be operating independently of FISA, or is the TSP the sum total of that original executive order as you know any details about it?

MR. MCCONNELL: No, ma'am. Everything that has to do with us, this community, conducting surveillance, foreign surveillance, for the purposes we've been discussing, has been subjected to the FISA court and is being operated under the authority of the FISA court.

REP. BALDWIN: And just for additional clarity, I know that several months ago -- I think it was perhaps Attorney General Gonzales's last appearance before the Senate Judiciary Committee -- as they were discussing the content of discussions with then-Attorney General Ashcroft in the hospital, he seemed to say in his testimony that the discussion in that hospital room was not about TSP but some other aspect of that original executive order.

And maybe there's a way I should (rephrase ?) it. Did the executive order have a date or a number that we can make sure we're talking about the same thing? But in any event, he seemed to imply that there were other components that he was trying to seek authorization for. And I see Mr. Powell nodding his head. Maybe he has some information that can help clear this up.

MR. POWELL: Yes, ma'am. It was not -- my understanding is it was not an executive order. It was what we call a presidential authorization. There was no secret executive order that was signed. The DNI sent a letter to Senator Specter and Senator Leahy on July 31st of 2007 -- I believe that was also publicly released -- where he talks about shortly after 9/11 the president authorized the NSA to undertake various intelligence activities. A number of those activities were authorized in one order, which was reauthorized by the president approximately every 45 days. So there was a number of those orders, with certain modifications.

One particular aspect of those activities was what the president expressed in December 2005. So there is a letter out there kind of cleared by the community discussing both those presidential orders and those activities in the reference of TSP trying to bring some clarity to that. I know it's a confusing thing when we talk about these classified matters in open hearings.

REP. BALDWIN: Right. And we are shortly, I think, going to go into a classified hearing, and perhaps if there's anything you don't wish to share now and you can share later, please just let me know and I'll go on a different course.

So I am familiar with that letter from the DNI. I have not seen it and I don't have a copy, and I would love it for you to share it with me at some later point. But they're -- okay, they're saying in that that TSP is one element of this presidential authorization now, not an executive order. Were there other elements that relate in any way to FISA or surveillance or warrantless surveillance that we should know about in terms of fulfilling our oversight role with regards to FISA?

MR. MCCONNELL: All of it is subjected to the FISA court and approved by the court. And we could take you into the classified elements of it in a closed session.

REP. BALDWIN: Okay. In previous questioning -- is there a name for that presidential authorization that we're referring to so that we won't get it confused with others? Is there a number or a name or a date that I should refer back to?

MR. POWELL: We've just referred to it as a presidential authorization in my experience with presidential authorizations.

REP. BALDWIN: Okay. Are there other executive orders or presidential authorizations, aside from the one that we've just been discussing, that in any way would bypass FISA for surveillance that we need, in terms of doing our oversight, that we ought to know about?

MR. MCCONNELL: None that I'm aware of.

REP. CONYERS: The gentlelady's time has --

REP. BALDWIN: And I recently asked Mr. Wainstein if he has any further insight into this.

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