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. WHITEHOUSE: (Off mike.) Thank you, Madame Chair.

(Off mike.) Just so it's clear what we're talking about, because I think everybody agrees that we don't want to handcuff our military and our security intelligence forces when they're out hunting foreign terrorists. The Patriot -- the Protect America Act, as it passed by this Congress back in August, would allow no restriction -- or would establish no restriction on our intelligence agencies once a person was reasonably believed to be outside the United States. Correct?

MR. WAINSTEIN: Yes, sir. There were various criteria that we had to satisfy before the DNI and the attorney general could issue a certification, but once -- the key finding was that the person who we're targeting with surveillance was outside the United States.

SEN. WHITEHOUSE: Was reasonably believed to be outside the United States. And that category, "reasonably believed to be outside the United States," would include a family on vacation in the Caribbean -- an American family, all citizens, on vacation in the Caribbean? That category.

MR. WAINSTEIN: If there is a foreign intelligence purpose to that surveillance, and if we demonstrated that that person or that family was an agent of a foreign power, yes.

SEN. WHITEHOUSE: Where, under the Protect America Act do you have to demonstrate that they're an agent of a foreign power?

MR. WAINSTEIN: That's -- that's under the 12333, the Executive Order.

SEN. WHITEHOUSE: Exactly. It's not under the Protect America Act. There's nothing in the Protect America Act that would prevent the intelligence apparatus of the United States from surveilling American citizens on vacation in the Caribbean. Correct?

MR. WAINSTEIN: One of the criteria is that there's a foreign intelligence purpose -- this is in the statute, to that surveillance, and we have to meet that.

SEN. WHITEHOUSE: That's rather broadly defined, isn't it?

MR. WAINSTEIN: Well, I think --

SEN. WHITEHOUSE: And there's no judicial review of that determination is there?

MR. WAINSTEIN: Well, the judicial review of the procedures by which we --

SEN. WHITEHOUSE: But not judicial review of the determination that that family vacationing in the Caribbean is being surveilled for an intelligence purpose.

MR. WAINSTEIN: Well, there -- obviously directives can be challenged. Congress set up a mechanism by which they can be challenged, so, you know, there is court review there. But in terms of going to the court --

SEN. WHITEHOUSE: You must be reading a different statute than I am. I find no place in which a directive is required from a court authorizing -- a family vacationing in the Caribbean, or a businessman traveling to Canada, or somebody visiting their uncle in Ireland from being surveilled by the United States. The FISA Court is stripped of that jurisdiction by that statute, is it not?

MR. WAINSTEIN: But the FISA Court -- right, the FISA Court reviews the procedures by which we determine -- (inaudible) -- those people outside the United States, and --

SEN. WHITEHOUSE: Right, but they don't review the determination.

MR. WAINSTEIN: They do not give us approval up-front, and that's the difference.

SEN. WHITEHOUSE: Right. I think that's an important point. And I think what we're trying get at here is, what is the best way to protect Americans when they're happened to be traveling abroad? This is a different world now. People travel all the time for all sorts of reasons. And I don't think anybody in America believes that they give up their Constitutional rights the instant that they cross the border.

You indicated that you thought that there was a difference between whether you're in the country, or outside of the country, in the criminal law as well. Has the Department of Justice -- the United States Department of Justice ever wiretapped an American citizen outside of the United States in a criminal investigation without a court order?

MR. WAINSTEIN: I honestly don't know, historically, what the Department has authorized or not. What I'm talking about, though, is that, as you know --

SEN. WHITEHOUSE: Are there any American citizens presently being surveilled by the Department of Justice, outside of the United States, without a court order in a criminal investigation?

MR. WAINSTEIN: I wouldn't know. And I'm going to be careful because I just don't know, Senator. But the point I was --

SEN. WHITEHOUSE: Do you take those two questions for the record, please?

MR. WAINSTEIN: I would be happy to take them --

SEN. WHITEHOUSE: Okay.

MR. WAINSTEIN: -- (inaudible) -- get back to you.

The point I was making earlier, sir, is that, as you know, in the criminal context, there is not a warrant mechanism whereby a judge would issue a warrant for a search in Bangladesh or Buenos Aires, or whatever. And my point is just that, the fact that there isn't one on the national security side is not that striking because there's not such a mechanism on the law enforcement side either. That was my point.

SEN. WHITEHOUSE: It strikes me, though, as we're trying to resolve these difficult issues where we're balancing the interests of an American citizen -- on vacation in Caribbean, or traveling to visit their uncle overseas in Canada, or whatever, against the absolute necessity that we have the tools that we need to combat the threat of agencies and organizations abroad that wish to do us harm.

Do we have a reasonably good model, in the balance that's been struck on the domestic side -- through both the warrant requirement on the one hand, and the minimization rules that protect to protect the people who aren't the target but happen to talk to the target, on the other hand -- as a general proposition, and allowing for the fact that there are going to be matters of fine legislative language, and unintended consequence, and so forth -- as a general proposition, does the Department of Justice agree that that is a useful and important benchmark in evaluating whether we've succeeded in striking that balance?

MR. WAINSTEIN: I guess I'll draw on my personal experience, sir. I -- like you and a number of members here, I was a criminal prosecutor for 15 years of my career, and I used Title III, I used the regular warrant requirement in domestic law enforcement. It's what I was accustomed to.

After 9/11, I got into the national security game and started seeing what was necessary. And, frankly, I don't think that that construct would work. It simply would not work given the volume, diversity of communications that we need to intercept, the nimbleness with which we need to act to protect --

SEN. WHITEHOUSE: Wouldn't work for who? We have the director of National Intelligence said that Americans targeted abroad numbered 56. That is not in the context of our enormous defense effort against terrorism in the context of our enormous -- I think $40 billion-plus, was recently declassified by the DNI intelligence effort against terrorism, to pay for having people put together packages for 56 folks, so that an American who travels abroad knows that they enjoy the warrant requirement, doesn't seem to be the kind of interference that you're suggesting.

Why is it that putting together a package for 56 people is such a -- would so offend that balance, in your view?

MR. WAINSTEIN: No, I'm sorry, I was talking about a benchmark for Signals Intelligence, period, on the national security side.

SEN. WHITEHOUSE: I'm talking only about American citizens.

MR. WAINSTEIN: In terms of Americans, I --

SEN. WHITEHOUSE: When they travel abroad.

MR. WAINSTEIN: I recognize that they're -- that's a different kettle of fish, and there are different rights implicated. And my --

(Cross talk)

SEN. WHITEHOUSE: In fact, as far as we know, the United States Supreme Court might very well say that they have a warrant requirement (right ?), it's never been decided otherwise, has it?

MR. WAINSTEIN: No, you're right. It hasn't been decided. The problem is there are operational concerns. One of the concerns, for instance, is in the amendment that passed there's no emergency provision for going -- for going up and surveilling a U.S. person overseas without going to the FISA Court. So you have --

SEN. WHITEHOUSE: I'm with you on emergencies. My time has run out.

I thank the chair.

MR. WAINSTEIN: So I would be happy to brief you on other operational concerns we have about certain aspects of this -- of the amendment.

SEN. WHITEHOUSE: We are in active discussion.

MR. WAINSTEIN: Thank you, sir.

SEN. WHITEHOUSE: Thank you, Madame Chair.

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