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. STEVE COHEN (D-TN): Thank you, Mr. Chairman.

I'm going to take up a little bit where Ms. Sutton left off.

Mr. Wainstein, you testified that one reason we shouldn't worry about Americans being spied on as result of surveillance without a warrant -- that is directed a person overseas under the PAA is minimization procedures to handle the acquisition, dissemination and retention of incidentally collected U.S. person information. Is that true?

MR. WAINSTEIN: Yeah, I think that's a very important part of the protections, both under PAA and under other collections as well.

REP. COHEN: So people don't -- shouldn't have to worry because it's -- if they're spied on incidentally because you'll minimize what's done with the information. Is that right?

MR. WAINSTEIN: Well, I guess the way I'd frame it is that minimization procedures were adopted, you know, they go back before 1978 but in the context of -- (inaudible) -- intelligence overseas -- they were adopted; they are applied rigorously; they're trained on in the intelligence community so that if you're legitimately targeting somebody overseas, that person calls somebody in the United States, there's U.S. person information glean from that, that that U.S. person information is handled carefully so that, you know, the U.S. person's name and identifying information is script out unless that information is necessary to understand the foreign intelligence value of that information.

So it protects U.S. person information from being sort of disseminated and used in an inappropriate way.

So I think it is a very important protection. And it's one that has been used for a long time and the PAA does not change it.

REP. COHEN: And you can ensure us that these names are -- if they're picked up aren't ever released in any way.

MR. WAINSTEIN: Well, I think the minimization procedures -- some are classified, some are not classified.

But essentially what they do is -- and this is laid out, you know, in classified form -- that we can provide copies to you, the ones that aren't classified -- but it says if you get this information that it has to be retained in a certain way, it can only be disseminated under certain conditions, you can only disseminate the U.S. person identifying information if there's -- if you need that information for the consumer of the intelligence to understand the foreign intelligence value of that information.

So it's a very sort of careful sort of sequence handling of that information so that, yeah, there are situations where the name Ken Wainstein might come up in a surveillance and that name will end up in a report -- intelligence report because it's important that Ken Wainstein's name be included in that report to make sense of it.

REP. COHEN: Well, Mr. Wainstein, let me ask you this -- Newsweek -- you're probably familiar with this -- in 2006 reported that in a two-year period the NSA supplied the names of some 10,000 American citizens to interested officials and other agencies that the NSA had obtained -- minimized information and they kept it in their files. Are you familiar with that?

MR. WAINSTEIN: I'm not familiar with that specific report. I'm sorry, sir.

REP. COHEN: I think -- do we have a copy -- can we put that copy of that Newsweek report in the record, Mr. Chairman?

REP. CONYERS: Without objection, so ordered.

REP. COHEN: Thank you.

The actual -- the issue is that if you get the information -- we've got -- there's no warrants involved here, right?

MR. WAINSTEIN: Well, there's minimization procedures that do apply to FISA orders, yeah. So --

REP. COHEN: But there's no warrant if you're target is foreign?

MR. WAINSTEIN: Right.

REP. COHEN: Nowhere in that context?

MR. WAINSTEIN: Not now.

REP. COHEN: Mr. McConnell, let me ask you this -- the police as you well know -- are you an attorney?

MR. MCCONNELL: I am not, no.

REP. COHEN: You don't need to be an attorney to know this. American citizens -- yesterday was Constitution Day so we all need to remember the Constitution, the fourth amendment and all those things.

The police can't come into your house without a warrant, look around, copy files, take things, whatever and claim it was no violation of your rights just because they threw everything away or they restricted its use on their own initiative after they looked in your home and without a warrant, violated the Constitution and went back to the station.

Wouldn't you agree that minimization can't cure the damage done to privacy when the communications are intercepted in the first place?

MR. MCCONNELL: I'll just refer back to the --how I opened up my statement at the beginning -- the fault of 9/11 is we had someone in this country calling a terrorist that we didn't collect the information on -- a terrorist overseas. So the issue is protecting the country and when our target is foreign and incidental coverage you have to think about who's the target and where's the target?

REP. COHEN: Who's was the -- you say that in your original testimony, that was somebody in Florida, right?

MR. MCCONNELL: San Diego, I believe.

REP. COHEN: San Diego. And who did they call? You say a terrorist. Did we know that person was a terrorist at the time?

MR. MCCONNELL: Overseas, yes, sir.

REP. COHEN: We knew it. And we didn't do anything at all?

MR. MCCONNELL: For whatever reason, we didn't connect the dots with that. Now, we set up the situation where it might happen today -- sleeper in this country we don't know about, some sleeper that's been here for years and al Qaeda, some member that we know about calls in.

The reason for the way it's set up is if they activate that sleeper we have some way of knowing, we might prevent a 9/11 or a gas attack in a subway or whatever it might be. In the course of international communications -- first of all, we would only be conducting surveillance if it has a foreign intelligence target interest, we just don't just -- (inaudible) -- look at the world, so we'd have some reason to look at it so if it's incidental, has nothing to do with intelligence, that's what minimization is, you just take it out of the database.

REP. COHEN: Well, I want to thank you for your service to the country and particularly I believe you served President Clinton was president, is that correct?

MR. MCCONNELL: I did. Yes, sir.

REP. COHEN: Appreciate your service, sir.

MR. POWELL (?): Mr. Chairman, may I just respond a little bit to that last question -- very briefly?

The question is one that's been posed before and I believe Congressman Lungren addressed this earlier which is, is minimization sufficient or should we have to go get a court order when we have a valid surveillance against one target and that person talks to another person or person in the United States -- some sort of court order to allow us to get that communication?

And you analogized the criminal context just now. Naturally the same situation applies in the criminal context when we're getting wiretaps under Title 3 for law enforcement cases. If you get a wiretap authority against me, go to a court, get an order to intercept me, I have a phone call of -- (inaudible). Law enforcement is allowed to collect that surveillance, collect that communication without going through the court to get a separate order to authorize the listening and the communication of -- (inaudible) --. Rather, that communication is just minimized because he's a United States person, he might well be innocent. So the same thing, different minimization procedures but minimization is used on the criminal side as well as the foreign intelligence side.

REP. : Thank you for your comment.

Mr. Chairman, if you weren't around during President Clinton's time --

MR. : Yes, I was.

REP. : You were? Well, then I was going to thank you despite of the fact that maybe you weren't -- so thank you for your service, too. I don't want to --

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