Hearing of the House Select Intelligence Committee - The Foreign Intelligence Surveillance Act

Statement

HEARING OF THE HOUSE SELECT INTELLIGENCE COMMITTEE
SUBJECT: THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

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REP. DARRELL ISSA (R-CA): I'd like to just make a brief opening statement. One minute.

REP. REYES: Okay, Mr. Issa is recognized for one minute.

REP. ISSA: Thank you, Mr. Chairman. And I will submit my formal opening statement for the record.

But I do think that something needs to be cleared up in real time. During your opening statement, Mr. Chairman, I think unintentionally you talked about soldiers phoning or emailing home. And I think it's important to have in the record that in fact in World War II, in fact in Korea, and in fact in Vietnam, no soldier had an expectation that his phone calls or his emails -- which didn't exist then, but his regular mails -- were not going to be potentially censored.

And in fact some -- one only has to watch an old version of Mash to see what things looked like after they went through scrutiny on mail to find out whether or not it might divulge information from the battlefield.

So I would hope that when we go through this dialog we not use our soldiers, risking their lives and limb, as somehow a group that expects not to have communication heard. Just the opposite I would say that our men and women uniform are the first to say, I'm not worried about what you listen to or email coming from the battlefield. Just the opposite. I need to be kept safe by making sure that in fact we do secure that kind of information coming from Afghanistan and Iraq.

So I know the chairman is a soldier himself and didn't intend to misstate that. But I thought it had to be put into the record, and I yield back.

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REP. ISSA: Thank you, Mr. Chairman.

Tom (sp), would you take that down to the admiral?

While he's doing that, I just want to go over one thing on Title 50 U.S. Code Section 105(f), the Emergency Order Permission. I took the liberty of taking a quick glance at it, and I'll ask that it be included in the record at this point.

REP. REYES: Without objection.

REP. ISSA: Thank you. Thank you, Mr. Chairman.

It's straightforward. It says you can do this. Unfortunately, as I read it -- and I'd like your read on it and, obviously, the attorney general's office, too -- what we did when we structured this legislation is we made it simple -- said you can do it. But in the same 105, what we went on to do was endlessly tell you what you had to do after that -- within that 72 hours. And if I understand correctly, notwithstanding the chairman's statement that -- you know, you wouldn't wait 12 hours -- you wouldn't take 12 hours if it was your child, and you probably wouldn't. You'd be willing to go to jail, you'd be willing to violate the law, you'd be willing to ignore that to save your own child's life. But that's not the standard we hold people to in law enforcement. We hold them to the standard that they are not. We take them off cases if it's their child.

MR. WAINSTEIN: Yes, sir.

REP. ISSA: As I read the statute, it's pretty clear that you have to have ready a good-faith belief that you're going to be able to -- after 72 hours -- present to the judge this -- another two-and-a- half pages of what-ifs and notwithstandings and so on. Is that correct, Admiral?

ADM. MCCONNELL: Yes, sir. That's correct. That's the point.

REP. ISSA: Okay.

So in a nutshell, what -- as we've talked past each other for the last 45 minutes, it's pretty clear that in Congress wanted you to have what General Petraeus has, which is they take our troops, he sends the gunship out, he kills the bad guys and gets our people back. If they wanted you to have that, they would give you 72 hours to take gunships out, so to speak without saying, "And -- oh, by the way, here's what has to be in your after-action for this to have been lawful." Is that right?

ADM. MCCONNELL: Yes, sir.

REP. ISSA: Okay.

I remember that -- and I think General Petraeus has been very good -- everybody who -- everybody who's been over there, as the ranking member has, I have, the chairman has -- General Petraeus explains that to us, that he can shoot somebody while they're calling the United States. He just can't listen to them while they're calling the United States.

ADM. MCCONNELL: Yes, sir.

REP. ISSA: Okay.

And I only put this into the record -- the Marine Online statement because I think it's important, notwithstanding the chairman's "We're not going to spy on our troops." I have checked and confirmed -- and you have in front of you -- which I also would ask to be put in the record anecdotally -- that every U.S. Department of Defense site both here and theater has a warning that says, "You may be monitored." As a matter of fact, it specifically makes it clear that you will be potentially monitored --

REP. REYES: Without objection.

REP. ISSA: And for Mr. Wainstein, I guess my question is your understanding of how the Uniform Code of Military Justice works. The -- when somebody's given a warning like this, when somebody's in theater, is it fair to say their Fourth Amendment is not in fact -- that in fact, if they do something inappropriate, including go to a porno site, they can -- this can -- that evidence can be used and they have no expectation of privacy. Is that right?

ADM. MCCONNELL: Yeah, sir, I don't actually have the -- (CD ?) past the Admiral, but Americans -- the 4th Amendment protections do follow Americans when they go overseas. But obviously, if you consent to -- you can see a banner that says like by using this you consent to us looking at it and possibly using it against you if you do something wrong. If that's what this banner says then yes, they've waived that.

REP. ISSA: Okay. Okay. And I only say that because we're not spying on our troops. Our troops are, in fact, consenting that for their safety that that happened. And I might --

ADM. MCCONNELL: And in addition, if I might say just --

REP. ISSA: Yes, please.

ADM. MCCONNELL: -- a few moments earlier, if we do surveil (sic) a soldier overseas as American, we have to establish to the Attorney General that that person's an agent of a foreign power.

REP. ISSA: Of course, if they become a target. I might, for the record, remind us all that it was insiders, not U.S. troops, but insiders who blew up our mess hall in Iraq. And, in fact, they had access or at least presence of computers and so on. I think -- I think today what we're hearing is we're hearing the majority say on a bill that they wrote, we didn't co-sponsor, they voted for and they sent to the president and the president signed, they're saying please don't let us hurt ourselves again and the American people.

And I would hope that they don't really mean it. My understanding of the Rocket Docket in Virginia, it's about 18 months. So I just want to have that in the record because I think 12 hours, when you know you're going to a court, that the question of speed is highly questionable.

Director, I do have one question for you that is pertinent for both sides of the aisle up here, and that is, all of us who not only receive classified briefings as we do, but who constantly look to the unclassified internet information related to areas of study, could not miss that the New York Times and everybody else on and off the internet, has been reporting, with some inconsistency, but reporting Israel's attack on Syrian sites. And yet, members of this committee, having inquired, have essentially been told we won't be briefed.

And as much as I want to support you, and I have supported your need to get what you need, I would hope today, in an open hearing that you would realize that many of us are frustrated that we do get selective information. And that when you declassified something in El Paso, I respect the fact that you did so -- what you thought were the right reasons. But I would hope that we could change the policy, starting today, about selectively handing us little bits of information to tie us up, while, in fact, critical information that is all ready leaking around in an inconsistent way can be brought to a committee that has to make decisions on whether or not our plans and preparations and our eyes are the ground are appropriate.

So if you could comment on that specifically, maintaining an unclassified -- and I'm not talking about the specific incident, but I am talking about the question of how you select answering our questions, including the Chairman's Ranking Member's request that seems to be forever waiting to find out and negotiated as to whether or not this Committee receives it.

ADM. MCCONNELL: Sir, first of all, a very important question. And let me just give you my personal view as it's -- the oversight process -- sunshine's a good thing and not a bad thing so oversight and sharing of information is appropriate and healthy. And that's my personal belief on how we engage. On this specific instance you're making reference to, I'd be happy to talk to you about that.

There are some -- there are information at the classified level that wouldn't be appropriate for me to discuss now. And there are varying levels of what you can do and not do by agreement between the executive branch and the Congress. And so I have to be respectful of that process. But given the opportunity to engage in dialogue and share information, I'm going to default to the sunshine position of making it available.

REP. ISSA: Okay. Mr. Chairman, I appreciate your indulgence on the time.

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