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. JAN SCHAKOWSKY (D-IL): Thank you, Mr. Chairman. Director McConnell, I'm wondering, first, if you would provide to the committee in classified form specific instances of how NSA or the intelligence community was prevented altogether from collecting foreign intelligence prior to the passage of the PAA. You say those words, prevented altogether, on Page 6. Mr. Wainstein says prevented altogether on Page 5 of his testimony. And so I'd like to know how the law prevented altogether in which instances you were prevented from the ability to collect foreign intelligence, and I'd also like to know in your -- when you present that to the committee in classified form how H.R. 3356 did or did not correct that problem. That's a request. Would you comply with that request?

ADM. MCCONNELL: Yes, ma'am.

MR. WAINSTEIN: I -- (inaudible) -- answer that right now if you'd like. Would you like to answer that?

REP. SCHAKOWSKY: Well, I'm -- I would imagine that there are specific instances that you would want in classified session but if you want to briefly answer that.

MR. WAINSTEIN: Just generally, I think it's important to note that one of the things that is required when we have to go through the FISA court is we have to show probably cause that the person we want to target is an agent of a foreign power, and in the rest of our -- (inaudible) -- intelligence collection we don't have to do that. That's a big burden. That's a --

REP. SCHAKOWSKY: No, I want to -- but I would like to know -- and that's why I would prefer to have it in a classified form because I want to know the times that you were prevented from doing that. But let me go on --

MR. WAINSTEIN: I understand, but in the abstract it's -- you can understand that there are a number of instances where we cannot make that showing and we could therefore not do that surveillance, and that is one of the issues I think that we had with the bill.

REP. SCHAKOWSKY: I want to assure myself by seeing those instances. Director McConnell, we've been repeatedly told that the rights of U.S. persons would be protected under the new authorities because the NSA would minimize.

You talked about minimization -- U.S. person information. So will you commit that you will be able to tell us how frequently U.S. person information gets collected under the new act?

ADM. MCCONNELL: We'll -- we will look at the information -- see what can be made available. As I tried to explain on a similar question earlier, we may not be able to even answer the question, but what we can find we'll provide to the committee.

REP. SCHAKOWSKY: Well, okay. Then -- and will you be able to -- will you commit to -- that you'll be able to tell us how many times U.S. person information gets disseminated under the new act?

ADM. MCCONNELL: Yes, ma'am. That's an easier thing to do.

REP. SCHAKOWSKY: And will you commit that you will be able to tell us how many times information gathered under the new act gets used to seek FISA warrants against U.S. persons?

ADM. MCCONNELL: That would be a relatively straightforward thing, yes.

REP. SCHAKOWSKY: Okay. So you may not be able to tell us how frequently U.S. person information gets collected under the new act. If you're unable to answer that basic question, how is this committee going to be able to do proper oversight to exercise our constitutional mandate to do that kind of oversight to protect the rights of Americans?

ADM. MCCONNELL: Well, ma'am, as I tried to explain earlier it may be incidental question -- incident collection. You don't -- there's no human that is aware of it so you wouldn't know that until you went into the database. That's why I was saying to answer your question specifically it may not be an answer we can get. Now, once there's some reason to look at data then we can -- we keep track of that. We'd certainly be happy to provide it to you.

REP. SCHAKOWSKY: Okay, but so the -- so there may be information about Americans in that database. I'm looking at your testimony before the judiciary committee on Monday -- "I'm not even sure we keep information in that form. It will probably take us some time to get the answer." And then later you say, "It might create a situation where it creates significantly extra effort on our part." I think the protection of the privacy rights of U.S. Americans is worth effort. I mean, I -- if names are in a database and they're sitting in a database of innocent Americans it would seem to me that that would be something this committee -- that this Congress should be able to have oversight on.

ADM. MCCONNELL: Well, ma'am, let me try to put it in a context -- maybe use an example where it would make -- little easier to understand. There are literally billions of transactions, and remember, the mission is foreign intelligence.

REP. SCHAKOWSKY: But how do you know it's incidental if you don't have the statistics?

ADM. MCCONNELL: In the context of foreign intelligence we can't control what foreigners might say about Americans. Frequently, there's a reference to a political figure in the United States or something. We may not know that's in the database until we had some reason to go query that portion of the database for a foreign intelligence purpose, so it could be there and us not be aware of it. That's the point I'm trying to highlight. Where it's -- where it has been used or specifically excluded from the database we probably can provide those numbers. I just don't know the extent of it but I'll be happy to look at it and see what we can provide to you.

REP. SCHAKOWSKY: You know, Mr. Chairman, let me just say that on a number of occasions we have found that databases have collected private information about American citizens, and later on then -- well, we made a mistake -- it shouldn't be there -- we should get it out of the database. I would prefer to see that at the beginning of the process -- that we make sure that we protect people's rights and that that become a priority regardless of the effort that it may take. Thank you, Mr. Chairman.

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