Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments

Interview

Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments: How to Protect Americans' Security and Privacy and Preserve the Rule of Law and Government Accountability

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SEN. JOHN CORNYN (R-TX): Thank you, Madame Chairman.

Mr. Wainstein, the Protect America Act sunsets in February. Is that correct?

MR. WAINSTEIN: I believe it's February 1st, sir.

SEN. CORNYN: And that's the law that Congress passed, this Congress, that said if it's two terrorists talking to each other overseas, that we don't need to get a warrant to intercept that information. Correct?

MR. WAINSTEIN: If we're targeting our surveillance at a person overseas, we don't have to go to the FISA Court before doing it.

SEN. CORNYN: And you're asking here today for a permanent extension of that law, which Congress has already passed. Correct?

MR. WAINSTEIN: Yes, sir, basically to bring it back in line with what was the original intent of FISA back in 1978.

SEN. CORNYN: And let me take this down to a particular scenario or set of facts that I think will help us understand what a burden the need for a warrant can be between -- when it comes to communications between terrorists overseas.

On October the 16th the New York Post reported a story about -- involving some soldiers who were in Iraq and were killed by al-Qaeda operatives -- four killed, and three were then kidnapped, including Alex Jimenez from Queens. And later, as a result of the search to find the three kidnapped soldiers, one of my constituents, Ryan Collins, 20 years old, of Vernon, Texas, lost his life.

But the timeline here I think is significant because at 10:00 on May the 15th, after these three soldiers were kidnapped, U.S. officials came across leads that show a need to access to Signals communications (sic); and the NSA at 10:52 -- 52 minutes later, notified the Department of Justice that under existing FISA law a warrant was needed to eavesdrop because the communications passed through United States infrastructure, even though it was communications overseas between two foreign nationals.

It then took until 12:53 p.m. for lawyers and intel officials to begin to work to confirm the probable cause necessary to identify the kidnappers as foreign insurgents, and, therefore, a legitimate target of American surveillance. Then, almost five hours later, at 5:15 p.m., the lawyers were able to file the paperwork necessary to request the emergency surveillance.

Finally, at 7:18 p.m. that night, almost 10 hours later, the attorney general of the United States approved the emergency surveillance based upon the belief that FISA Court would grant the warrant radioactively within one week. So nine hours and 38 minutes after three American soldiers were kidnapped -- and after it became apparent that there was Signals Intelligence that might help identify who their kidnappers were, and where these American soldiers were located -- it took almost 10 hours to get the necessary paperwork done by the lawyers at the Department of Justice in order to get the approval for the kind of surveillance that was required.

Is that the kind of impediment or barriers to Signals Intelligence surveillance that you are asking that the Congress avoid and eliminate, so we can, hopefully, save American lives?

MR. WAINSTEIN: Absolutely, Senator Cornyn. That particular incident -- obviously it's classified, there's only so much I can say about it -- it was a bit unique in the sense that there were some very novel issues of law there. However, even if you take it out of that context so that I don't step in classified matters, into any emergency authorization context there is a provision that allows us to have the attorney general -- and now delegated to me, authorize surveillance on emergency basis.

Within three days, however, we have to go to the FISA Court with a big package of materials and persuade the FISA Court there's probable cause that the person we're surveilling, who might well be outside the United States, is an agent of a foreign power. So we have to have all that probable cause before the attorney general makes his determination. It then has to be put into a package and satisfy the FISA Court or else there are consequences.

That all takes resources. It also means that there are people who are legitimate targets overseas against whom we just can't make probable cause that they are agents of a particular foreign power. And we can't surveil them at all. So it's not only an impediment in terms of it takes time, it takes resources, but it's precluding us -- or it did preclude us from surveilling legitimate targets overseas. -- (inaudible) --

SEN. CORNYN: Mr. Wainstein, you, of course, were talking about matters that are both public and some classified -- which we are not going to talk about, but I would just want to stress the timeline that I provided to you was in published new reports. And I'm not asking you to confirm or deny that timeline, but the report, according to the -- to the New York Post was that it took 10 hours later.

And my constituents in Texas, the parent of this young corporal that lost his life searching for these three American soldiers who were kidnapped, and whose discovery was delayed by 10 hours because of the red tape necessitated by the interpretation of the FISA law, I believe contributed to this young soldier's death.

MR. WAINSTEIN: Absolutely.

SEN. CORNYN: And that's just simply unacceptable, and I think it ought to be unacceptable to every American. When we are at war, to handcuff our American military and intelligence officials in this unacceptable way -- I just, to me it's a no-brainer. And I just -- I fail to understand the -- why we need to guarantee full-employment-act for lawyers in order to fight a war.

Let me ask you, there's been some question about the radioactive immunity for the telecoms who have participated in the intelligence surveillance that you described earlier. And there was some question whether we ought to cap damages, whether we ought to give them -- grant them some sort of reimbursement for their attorney's fees and other costs.

But there are more other tangible consequences associated with litigation which could be avoided. And I suggest to you that during General -- excuse me, Judge Mukasey's testimony we talked about the fact that during the 1993 trial involving the World Trade Center, where the trial of Omar Abdul-Rahman -- the so-called Blind Sheikh who conspired to bomb the World Trade Center -- that a list of 200 unindicted co-conspirators was disclosed to defense attorneys and later found its way into the hands of Osama bin Laden in the Sudan, bin Laden was, of course, on the list.

Does that highlight one of the other risks attendant to litigation of this nature involving classified materials that sensitive classified information might find its hands into the -- into the hands of our enemy?

MR. WAINSTEIN: Yes, absolutely. Now of course that's a different context. The criminal context we have -- we discussed with Senator Specter the Classified Information Procedures Act which helps us there, but still even in that situation you had a disclosure of very sensitive information which was very detrimental to our effort against our enemies.

That is -- we're concerned that that's going to happen even doubly in this litigation. And my understanding is there are 40 some cases right now around the country, and with all those cases running we're very -- gravely concerned that sources and methods will be disclosed.

SEN. CORNYN: Thank you very much.

Thank you, Madame Chairwoman.

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