Hearing of the Senate Judiciary Committee - Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?

Interview

Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?

SEN. SHELDON WHITEHOUSE (D-RI): I'd like to join Senator Specter in our thanks for the work that you've done. Ms. Spaulding, I thought your analysis was particularly thoughtful and helpful tracking the actual plumbing, if you will, the legal legislative language of the statute and where it overshot and where it missed.

It strikes me, from everything -- I know that there are witnesses from different backgrounds and orientations here, and we've just had Democrats and Republicans alike ask questions. We've had the DNI here. What I'm a little bit surprised by is how everybody seems to have come into an accord about where we need to be. There really does seem here to be a fairly sensible path that is relatively well- illuminated by the exchange that took place between the members and the DNI and what we've heard from all of you here today. Does that come as a surprise?

MR. CUNNINGHAM: Well, Senator, just speaking for myself, all four of us have known each other in various capacities and worked together for a very long period of time and I think have a lot of respect for each other. So I'm not terribly surprised.

I would highlight one, I think, difference that I'm quite certain exists between folks on the panel which the committee ought to think about for the future, and that is, under the Fourth Amendment, when you're talking about surveillance directed at targets overseas but which may, or will, I guess, intercept certain communications of people in the United States, the difference between what I will call programmatic review and approval by the court, where the court supervises the kind of thing I was talking about with Senator Specter, versus the requirement to get individual particularized warrants in advance, I think that's probably worth exploring because I think we may have some differences on that.

SEN. WHITEHOUSE: Although I suspect fewer than you imagine.

You said that there was a question about the scope of the Fourth Amendment when an American travels outside the boundaries of the United States. And I agree that the decisions, at least that I've read, leave that an unanswered proposition.

Is that something that we should try to pin down, or is it best to simply operate by analogy, create protections akin to those that are longstanding under Title III, and then wait for the judicial process to eventually come through with decisions that further define the rights of an American traveling abroad? They're obviously less than at home, but it's not clear how less, at least from the point of view of the judicial decisions. I was surprised at how vague the law is on that question.

MR. DEMPSEY: Well, Senator, I think that my reading of the current state of law is that at least an American citizen and maybe a U.S. person abroad has the protection of the Fourth Amendment in the sense that the reasonableness clause of the Fourth Amendment applies to an American abroad but the warrant --

SEN. WHITEHOUSE: But the warrant requirement doesn't.

MR. DEMPSEY: -- clause does not, which was the holding of the cases so far. Now, that doesn't mean, as Senator Specter and others were going, that Congress could not give a court jurisdiction to issue a warrant for surveillance abroad. In fact, at one point the administrative office of the U.S. courts considered such a proposal for, I think --

SEN. WHITEHOUSE: That was actually my suggestion.

MR. DEMPSEY: -- a Rule 41 -- that was your suggestion.

SEN. WHITEHOUSE: That is one of my suggestions in this process.

MR. DEMPSEY: It had been previously floated. It hadn't gone forward. But I think that that's -- I heard sort of consensus on that. The DNI said he wanted to obviously see the language.

SEN. WHITEHOUSE: Yeah.

MR. DEMPSEY: But I think that's the right direction to go.

SEN. WHITEHOUSE: Once we've gotten to the point of the court being the right direction to go, when I did surveillance in the law enforcement context, what we needed to prove was that there was probable cause to believe that the individual targeted was engaged in a specified violation of the laws of the United States or the state, depending on who you were doing.

In this case, the standard is different. The attorney general is required to opine that the target is -- there's probable cause to believe that the target is an agent of a foreign power. Is that the correct standard? And where does it come from?

MR. DEMPSEY: Well, that's the standard in Executive Order 12333, and that's the one that the administration is living by, with the attorney general making that decision. So, in essence, all --

SEN. WHITEHOUSE: Does it have august history? Is that language that was crafted from other statutes and goes way back?

MR. DEMPSEY: Well, it has some origin -- I think agent of a foreign power has origin in the Keith case. I think there may be -- for now, I think it's good enough. I think --

SEN. WHITEHOUSE: Ms. Spaulding, you were making -- nodding your head.

MS. SPAULDING: I was just going to say that it is. It's in a footnote in the Keith case, and what really -- where the Keith opinion is noting what it is not covering in the case. We are not dealing -- this was a case of a purely domestic; no indication of any international or foreign connection. And they said, "So our decision here is not addressing, one way or the other, how this would apply if we were dealing with foreign powers or agents of foreign powers." That's where the language came from.

SEN. WHITEHOUSE: May I ask one final question, Mr. Chairman? And I'm over my time.

SEN. FEINGOLD: (Off mike.)

SEN. WHITEHOUSE: One of the things that has struck me, as I've been involved in this in a rather different context than you all have, is that, as technology has changed, the intrusion that the search warrant effects into somebody's privacy has expanded.

Back when the Founding Fathers dreamed this up, the sheriff went into your house, he rummaged around, he grabbed the evidence that he needed, it was taken to the courthouse, it was used in the trial, and it was either disposed of or returned, end of story.

Then comes the Xerox machine. Now the sheriff or the police officer goes into the house, he grabs the relevant information, makes a copy of it, returns it when everything is done, but still in the file someplace, down in the dusty basement of a courthouse, is the stuff that was taken from your house -- hard to find.

Now we get to the electronic age. Now they take it and they scan it and it goes into a database. And the live intrusion into the house that was over and concluded back when the Founding Fathers wrote this is actually preserved electronically forever, not only for those officers and the people in the case to look at, but for anybody who can have access to it to look at.

And I'm interested in any thoughts that you may have -- it's too long to have -- I mean, I'm opening a large discussion right now. But if you wouldn't mind, for the record, pointing me to things that you think discuss this issue intelligently and are things that we should consider as we continue to move into a more electronic age.

I think that the people who wrote the warrant requirement into the United States Constitution would be surprised to see the preservation of data that now exists and the re-searches that continue to be done; you know, hyphen searches that can be done once that material has been grabbed once properly but then stored. And I don't mean just in the intelligence context. This is just as true of an FBI or an ATF or a Secret Service or other search as it is in the intelligence context.

Quick reaction, and then -- while I'm holding everybody here.

MR. BAKER: If I could just briefly, Senator, I think you've put your finger on a very important point. But what I'd say is although technology presents us with certain problems with respect to privacy, certain issues and concerns, technology also presents us with certain solutions, certain tools that we might use to be able to do this. And this is going to be --

SEN. WHITEHOUSE: It's our job here to create those -- to require the implementation of those tools, I guess.

MR. BAKER: Tools, but I'm talking about technological tools that can be used to assist us in that way. What I would suggest or recommend is getting a briefing perhaps from the intelligence community on some of the minimization procedures that are in place now, generally speaking, and some of the changes that are afoot. You might find some of those interesting with respect to dealing with some of these issues.

If I could just go back to the prior question just very briefly, I would just signal a note of caution with respect to changes that you might want to make with respect to activities vis-a-vis Americans overseas, because there you need to be very careful with what you're doing and how you're impacting the activities of our intelligence officers and employees overseas.

The overseas environment is very different from domestic environment when you're literally on the ground and doing things. And this is something that Congress -- there is legislative history on this. Congress has historically been concerned about this, but shied away from trying to legislate in this area. And I'd be happy to provide --

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