[Senate Hearing 109-1055]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1055
FISA FOR THE 21ST CENTURY
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 26, 2006
__________
Serial No. J-109-101
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 293
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 296
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Alexander, Lt. General Keith B., Director, National Security
Agency, Chief of the Central Security Service, Washington, D.C. 11
Bradbury, Steven G., Acting Assistant Attorney General, Office of
Legal Counsel, U.S. Department of Justice, Washington, D.C..... 12
Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver,
Colorado....................................................... 38
Dempsey, James X. Policy Director, Center for Democracy and
Technology, Washington, D.C.................................... 40
DeRosa, Mary B., Senior Fellow, Center for Strategic and
International Studies, Technology and Public Policy Program,
Washington, D.C................................................ 44
Hayden, General Michael V., Director, Central Intelligence
Agency, Office of the Director of National Intelligence,
Langley, Virginia.............................................. 6
Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago,
Illinois....................................................... 41
QUESTIONS AND ANSWERS
Responses of Lt. General Keith B. Alexander to questions
submitted by Senators Specter, Schumer, Feinstein, Kennedy,
Durbin and Feingold............................................ 50
Responses of Steven G. Bradbury to questions submitted by
Senators Specter, Leahy, Kennedy, Feinstein, Feingold, Schumer
and Durbin..................................................... 84
Questions submitted by Senator Specter to Bryan Cunningham were
not received by the time of print.............................. 146
Responses of James X. Dempsey to questions submitted by Senators
Specter, Feinstein and Kennedy................................. 147
Questions submitted by Senator Specter, Senator Feinstein and
Senator Kennedy to Mary B. DeRosa were not received by the time
of print....................................................... 156
Responses of Michael V. Hayden to questions submitted by Senator
Specter, Schumer, Feinstein, Leahy, Kennedy and Durbin......... 162
Responses of John Schmidt to questions submitted by Senators
Specter and Kennedy............................................ 182
SUBMISSIONS FOR THE RECORD
Alexander, Lt. General Keith B., Director, National Security
Agency, Chief of the Central Security Service, Washington,
D.C., statement................................................ 188
American Civil Liberties Union, Caroline Fredrickson, Director,
Washington Legislative Office, and Lisa Graves, Senior Counsel
for Legislative Strategy, Washington, D.C., letter............. 194
Bradbury, Steven G., Acting Assistant Attorney General, Office of
Legal Counsel, U.S. Department of Justice, Washington, D.C.,
statement...................................................... 201
Constitutional Law Scholars and former Government Officials,
letter......................................................... 208
Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver,
Colorado, statement and attachment............................. 218
Dempsey, James X. Policy Director, Center for Democracy and
Technology, Washington, D.C., statement........................ 265
DeRosa, Mary B., Senior Fellow, Center for Strategic and
International Studies, Technology and Public Policy Program,
Washington, D.C., statement.................................... 278
Hayden, General Michael V., Director, Central Intelligence
Agency, Office of the Director of National Intelligence,
Langley, Virginia, statement................................... 287
Los Angeles Times, July 16, 2006, article........................ 299
New York Times:
June 15, 2006, article....................................... 301
July 16, 2006, article....................................... 303
Patriots to Restore Checks and Balances, Washington, D.C., letter 306
Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago,
Illinois, statement............................................ 308
Washingtonpost.com:
July 15, 2006, article....................................... 314
July 26, 2006, article....................................... 316
Washington Post, July 16, 2006, article.......................... 317
FISA FOR THE 21ST CENTURY
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WEDNESDAY, JULY 26, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, DeWine, Cornyn, Leahy, Kennedy,
Feinstein, Feingold, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed with our hearing on the
proposed legislation which would submit the surveillance
program for constitutional review to the Foreign Intelligence
Surveillance Court.
Wiretapping has been going on in the United States
involving U.S. citizens some 4\1/2\ years without having the
traditional judicial approval. Since it was publicly disclosed
in mid-December, the Judiciary Committee has held five hearings
and has considered a variety of proposed bills leading to the
legislation which we have before us today, which has been
meticulously negotiated and has the agreement of the President
to refer the surveillance program to the FISA Court if the
legislation is approved. There may be modifications, subject to
the agreement of the President. The Foreign Intelligence
Surveillance Court is well suited to handle this review because
of its expertise in the field and because of its secrecy, the
White House insists that there not be public disclosures.
Moving to the substance of the bill, I first want to take
up two items where critics do not face reality on these two
major points:
First, there is a contention that the bill is defective
because it does not retain the Foreign Intelligence
Surveillance Court as the exclusive place to determine
wiretapping. The reality is that since the President has put
his program into effect, the Foreign Intelligence Surveillance
Act, administered by the Foreign Intelligence Surveillance
Court, is, in fact, not the exclusive remedy. The President
claims that he has inherent Article II power to conduct the
wiretapping aside from the Court. Three appellate courts appear
to agree with that, but it depends upon what the program is.
The constitutional requirements are that there has to be a
balancing of the value to security contrasted with the
intrusion into privacy, and that can only be determined by
judicial review. And in a context where the President is
demonstrably unwilling to have the program subjected to public
view, it would have to be determined by the FISA Court if it is
to be ruled on constitutionally at all.
The second point where the critics are objecting which I
submit does not face the reality is the contention that the
proposed legislation expands the Article II power of the
President of the United States. A statute cannot do that. The
Constitution is supreme. If the President has the
constitutional authority under Article II, that supercedes the
statute, and a new statute may not add to nor diminish the
President's constitutional power.
The legislation has received a considerable amount of
commentary, a considerable amount of critical commentary. And,
candidly, I welcome the dialog because I am personally
convinced that when the legislation is fully understood and
faced with the reality of this surveillance going on, unchecked
constitutionally in the absence of any better way to do it,
when this legislation is fully understood with those factors,
there will be acceptance.
The commentary today in one of the major papers says that
the legislation adds a provision: ``Nothing in this Act shall
be construed to limit the constitutional authority of the
President to collect intelligence with respect to foreign
powers and agents of foreign powers.'' Well, this bill does not
add that. That provision is in the current Foreign Intelligence
Surveillance Act, and it is there because it deals with
embassies, foreign embassies, foreign residences of people in
the United States representing foreign governments. And there
has never been a requirement that there would have to be court
approval to have wiretapping in that situation.
The commentary today says that the bill explicitly
acknowledges an alternative source of power. Well, the bill
does not. Article II power is what it is.
Now, I would have preferred to have had some other
provisions, candidly. I would like to have had the program
mandatory so that the President would have to submit it to the
FISA Court. But I could understand the President's refusal to
do that in light of his being unwilling to bind future
Presidents and make an institutional change in the powers the
President has. But my goal is to solve the current problem. The
President has made a firm commitment to me, later confirmed by
his White House personnel publicly, a firm commitment--may the
record show that Mr. Steven Bradbury, who negotiated for the
President, is nodding in the affirmative--made a firm
commitment to submit the program to the FISA Court.
Now, I would like to have a mandate, but this President is
not going to give a mandate and yield to that kind of
legislative authority. And even the statute did provide a
mandate, if a future President challenged it under Article II
powers, Article II powers are what they are, and the statute
could not bind a future President.
It really seems to boil down, to me, in many quarters that
if the President agrees with it, there must be something wrong
with it. There is a widespread sense that there is something
amiss with Presidential agreement. Well, this legislation was
negotiated in a way that I characterize as ``fierce.'' When we
come to Mr. Steven Bradbury, the Acting Assistant Attorney
General for the Office of Legal Counsel, we will get into some
of the details on that.
In light of the President's commitment, I think it is fair
to say that this legislation is a breakthrough. Today's
commentary refers to other bills which are pending, some by
members of the Intelligence Committee who know the details of
the program. Well, none of the bills does what this bill does.
None of the bills reaches judicial review of the program.
We have had two recent decisions by United States district
courts. Last week, the chief judge of the district court in San
Francisco, Judge Walker, made a determination that a suit,
Hepting v. AT&T, would go forward. But a close reading of that
72-page opinion shows it goes forward under very limited ways.
And Judge Walker has put so many hurdles on state secrets that
it is highly doubtful that that case will last much longer.
Yesterday, a Federal judge in Chicago hearing Terkel v. AT&T,
dismissed the case on grounds of state secrets. And when you
read those cases, the obstacles are enormous.
If there is a sense to modify the provision in the
legislation which gives exclusive jurisdiction to the FISA
Court, that can be done. We would not have the President's
commitment, but the President talked about making modifications
subject to his approval.
There are a number of changes which modernize the FISA
Court which we will get into. I have talked longer than I
customarily do, but I have done so because of the complexity of
this issue and what at least I think is the lack of
understanding of the legislation and its applicability.
We started a little early today because the Prime Minister
of Iraq is scheduled to address a joint session at 11, and we
may lose members by that time, and we also have a vote
scheduled at 10.
I am pleased now to yield to the distinguished Ranking
Member, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and thank you for
convening this hearing. I am especially delighted to welcome
General Hayden to his first appearance before this Committee
since he assumed his new duties. I spoke with the General
yesterday and told him how pleased I was to see the level of
professionalism that he has brought to the agency and the
appointments he has made. ``Independence'' and ``competence''
were the two watchwords that led me to believe that he would
serve well as the Director of the CIA, and I said so at the
time I voted for his confirmation. Again, we need some straight
talk today in navigating this very difficult issue.
There are two sets of issues relating to the Foreign
Intelligence Surveillance Act that are now before this
Committee. First, what is the extent of the administration's
warrantless wiretapping in violation of FISA, and how should we
in Congress react? After 7 months and four hearings, we remain
largely in the dark about what the administration is doing and
continues to do because the administration has stonewalled this
Committee's bipartisan efforts at oversight. But the answer is
clear: We must demand and we must ensure that this
administration, and the next administration which will follow
in 2\1/2\ years, actually follows the law.
Second, does the FISA law itself need to be revised? It has
been amended six times at this administration's request in the
5 years since 9/11. But even though we have done that six times
at the administration's request, they now say it needs
``modernization.'' That modernization is the focus of today's
hearing. The Democratic members of this Committee asked for
such a hearing, and I compliment the Chairman on having it.
But the issues of compliance and modernization are
completely separate issues. Whether or not FISA is in need of
fine-tuning is a legitimate consideration, but FISA's possible
imperfections provide no excuse for the administration's
flouting of existing law. By the same token, the Bush-Cheney
administration's outrageous disregard for existing law does not
mean that we in Congress should shirk our responsibility to
improve the law if there is a need to.
So I am ready to consider Section 9 on its merits. But I
have serious grounds for skepticism.
If Section 9's provisions are, as claimed, needed to bring
FISA up-to-date with the 21st century, why haven't we heard
about them before now? As I said, we have amended it six times
at the administration's request. In July 2002, former Attorney
General Ashcroft testified that the 2001 PATRIOT Act had
``modernized our surveillance tools to keep pace with
technological changes.'' In March of this year, in the
reauthorization of the PATRIOT Act, we made all the amendments
of FISA that the administration requested. In fact, the
President then took credit for updating the law.
So if FISA as amended is too ``quaint'' to meet the
challenges of the 21st century, the Bush-Cheney administration
owes the Congress and the American people an explanation for
why they did not speak up before now.
Now, to the extent I have been able to figure out the
highly complex language of Section 9, it seems to me to permit
vast new amounts of warrantless surveillance of telephone calls
involving American citizens. It would appear to authorize
unrestricted, unregulated Government surveillance of American
citizens talking to relatives, colleagues, and trading partners
overseas, without any showing that that is necessary to protect
our National security. But to the extent that the
administration's witnesses can explain to us today, in
practical and concrete terms, why these make sense, I will
listen.
But let me turn to the rest of the bill. It has been called
a compromise. But this Vermonter does not believe that we
should ever compromise on requiring the Executive to submit to
the rule of law, no matter who is President. And I am sad to
say that I see the bill less as a compromise and more as a
concession. It would abandon our oversight role and confine
oversight to a single judge on a secret court, whose decision
on the one program the Bush-Cheney administration has agreed to
submit for review is appealable only by the Bush-Cheney
administration. And even that oversight would not be required
by the bill itself.
Now, I know the Chairman got the best deal he could. The
President, the Vice President, and their legions can be
hardheaded rather than flexible bargainers. I make these
observations respectfully, but also to express my reluctance to
compromise FISA and the minimal protections--the minimal
protections--it provides for Americans.
Section 8 would repeal FISA's exclusivity provision and
affirmatively embrace the President's claim of sweeping
inherent authority. The result is to make FISA optional. The
President can use it or not use it, at his option.
It is astounding that we are considering this proposal.
FISA was never intended to give Presidents choices. It was
enacted to prevent abuses of Executive power and protect
Americans' liberties by prohibiting the Government from spying
on its citizens without court approval. The Bush-Cheney
administration has chosen to simply ignore it. I am wondering
now are we going to reward its flouting of the law by saying,
in effect, ``Oh, please excuse us for passing that law. We
didn't mean to. We didn't expect you to follow it. We will
never do that again.'' That is like arresting a burglar with
three bags of cash and saying, ``Leave one bag here, and we
will all be OK with that.''
Defenders of the bill have argued that Section 8 is
``meaningless'' because the President has whatever
constitutional authority the Constitution says, and Congress
cannot limit that authority through legislation. If the best we
can say on behalf of proposed legislation is that it is a waste
of ink, but then we should not be enacting it. But I do not
believe that, when it goes to the secret FISA Court, the
administration will adhere to the position that Section 8 is
meaningless. The administration is insisting on that for a
reason.
As the Supreme Court recently explained in its Hamdan
decision, the constitutional scope of Presidential power
depends on the legislation that Congress has enacted, even in
times of war. The Constitution grants Congress the express
power to set rules for the military and the express power ``To
make all laws which shall be necessary and proper for carrying
into execution'' all the powers vested by the Constitution in
the Federal Government, including those of the President.
In the absence of Congressional action, the President may
well have some measure of unilateral authority. That is what
the precedents the administration always cites suggest. But
once Congress acts, as it did in FISA, the President is no
longer free to do whatever he wants to do. As the Court said in
Hamdan, ``Whether or not the President has independent power,
absent Congressional authorization,'' Congress, of course, may
place limitations on those powers.
That was the whole point of FISA: to limit the President's
power to spy on ordinary Americans by making FISA the sole
means by which foreign intelligence wiretaps may be conducted
in the United States. Waiving FISA's exclusivity provision
would not be meaningless. It would completely gut FISA. It
would give the President a blank check to carry out warrantless
wiretapping whenever he chooses or whenever the next President
chooses. I could not in good conscience acquiesce in such a
sweeping signing away of Americans' liberties in any
circumstances. I am certainly not going to do it at the behest
of an administration that has continuously broken the law.
Thank you, Mr. Chairman. I will put my full statement in
the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Leahy.
Would any other members like to make an opening statement?
[No response.]
Chairman Specter. Well, then, we will turn to our first
witness, the distinguished Director of the Central Intelligence
Agency, General Michael Hayden.
General Hayden comes to this position with a very
distinguished record. He received his bachelor's degree from
Duquesne University in 1967; master's, also from Duquesne, in
Modern American History. We have not only an intelligence
officer but a Renaissance man with us here today. Extensive
course work in the Armed Forces Staff College, the Air War
College, Defense Intelligence School. He has had ranking
positions which we will include in the record. He has had many
awards, honors, which we will include in the record. And one we
will know specifically is that he is a Pennsylvanian, from
Pittsburgh. That is too important just to be included in the
record.
General Hayden. Thank you, Senator.
Chairman Specter. We are honored, General Hayden, that you
would testify before this Committee on your first occasion
since becoming Director of the Central Intelligence Agency, and
we look forward to your testimony.
STATEMENT OF GENERAL MICHAEL V. HAYDEN, DIRECTOR, CENTRAL
INTELLIGENCE AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE, LANGLEY, VIRGINIA
General Hayden. Thank you, Mr. Chairman, Senator Leahy.
Thanks for the opportunity to speak before your Committee
today. The work that you and we have before us is truly
important: How do we best balance our security and our liberty
and continue the pursuit of valuable foreign intelligence? Let
me congratulate the Committee for taking on the task of
examining and, where appropriate, amending the Foreign
Intelligence Surveillance Act.
This task of balancing security and liberty is one that
those of us in the intelligence community take very seriously
and, frankly, it is one to which we turn our attention every
day.
If I can be permitted one anecdote, within days of the 9/11
attacks, I actually addressed the NSA work force. At the time I
was the Director of that Agency. It was a short video. I was
talking to an empty room, but the video was beamed to our work
force throughout Fort Meade and globally. And most of what I
said was what you would normally expect at a moment like that.
I tried to inspire. It was important. The Nation was relying on
us. I tried to comfort. Look on the bright side: a quarter
billion Americans wished they had your job today. And I ended
the talk by trying to give some perspective. I said all free
peoples have had to balance the demands of liberty with the
demands of security. And, historically, we Americans had
planted our flag well down that spectrum toward liberty. And so
I ended my talk by simply saying here was our challenge: ``We
at NSA were going to keep America free,'' I said, ``by making
Americans feel safe again.''
Now, that was not an easy challenge. The Joint Inquiry
Commission, which I think most of you know was comprised of the
House and Senate Intelligence Committees, would later summarize
our shortcomings in the months and years leading up to the
September 11th attacks. The Commission, sometimes harshly,
criticized our ability to link things happening in the United
States with things that were happening elsewhere.
Let me just quote from some of the JIC's, the Joint Inquiry
Commission's Systemic Findings, and here I am quoting.
``. . . NSA's cautious approach to any collection of
intelligence relating to activities in the United States.''
Again quoting, ``There were also gaps in NSA's coverage of
foreign communications, and the FBI's coverage of domestic
communications.''
And, again, ``. . . NSA did not want to be perceived as
targeting individuals in the United States.''
And, finally--and here the Commission was talking about one
end U.S. conversations. By that I mean conversations in which
one of the communicants was in the United States of America.
The Commission said, ``. . . there was insufficient focus on
what many would have thought was among the most critically
important kinds of terrorist related communications, at least
in terms of protecting the homeland.''
Now, for NSA the challenge was very acute. NSA intercepts
communications, and it does so for only one purpose: to protect
America, to protect the lives, the liberties, and the well-
being of the citizens of the United States from those who would
do us harm. By the late 1990s, that had become increasingly
difficult. The explosion of modern communications in terms of
volume, variety, and velocity threatened to overwhelm us as an
agency.
The September 11th attacks exposed an even more critical
and fundamental fault line. The laws of the United States do,
and should, distinguish between the information space that is
America and the rest of the planet.
The laws of the United States do, and should, distinguish
between the information space that is America and the rest of
the planet.
But modern telecommunications do not so cleanly respect
that geographic distinction. All of us exist on a unitary,
integrated, global telecommunications grid in which geography
is an increasingly irrelevant factor. What does ``place'' mean
when one is traversing the Internet? There are no area codes on
the World Wide Web.
And if modern telecommunications muted the distinctions of
geography, our enemy seemed to want to end the distinction
altogether. After all, he killed 3,000 of our countrymen from
within the homeland.
In terms of both technology and the character of our enemy,
``in'' America and ``of'' America were no longer synonymous.
I testified about this challenge in open session to the
House Intel Committee in April of 2000. At the time I used a
metaphor, an example, and I created some looks of disbelief
when I said that if Osama bin Laden crossed the bridge from
Niagara Falls, Ontario, to Niagara Falls, New York, there were
provisions of U.S. law that would kick in and offer him some
protections and would actually affect how NSA could now cover
him. Now, at the time that was just a stark hypothetical.
Seventeen months later, after the attacks, that was the reality
we were facing.
The legal regime under which NSA is operating, the Foreign
Intelligence Surveillance Act, had been crafted to protect
American liberty and American security.
But the revolution in telecommunications technology has
extended the actual impact of the FISA regime far beyond what
Congress could ever have anticipated in 1978. And, frankly, I
do not think anyone could make the claim that the FISA statute
was designed to deal with a 9/11 or to deal with a legal enemy
who likely already had armed combatants inside the United
States.
Because of the wording of the statute, the Government looks
to four factors in assessing whether or not a court order is
required before NSA can lawfully intercept a communication--
and, again, you will not find these articulated as such in the
statute. But the impact of the statute is that we look to four
things so that we can decide whether or not a court order is
needed before NSA does what it does routinely, and those
factors are: who is the target, where is the target, how do we
intercept the communication, and where do we intercept the
communication. And, frankly, Mr. Chairman, the bill before the
Committee today effectively re-examines the relevance of each
of those factors and examines the criteria we now want to use
going forward to use each of them. Let me just talk about each
of them for a moment.
Who is the target?
The FISA regime from 1978 onward focused on specific court
orders, against individual targets, individually justified and
individually documented. That was well suited to a stable,
foreign entity on which we wanted to focus for extended periods
of time for foreign intelligence purposes. It is not as well
suited to provide the agility to detect and prevent attacks
against the homeland.
Looked at another way, FISA's careful, individualized
processes exact little cost when our goal is long-term
surveillance and exhausting intelligence coverage against a
known and recognizable agent of a foreign power. The costs are
different when our objective is to detect and prevent attacks.
The costs are different when we are in hot pursuit of
communications entering or leaving the United States involving
someone we believe to be associated with al Qaeda.
Now, in this regard, extending the period for emergency
FISAs to 7 days and allowing the Attorney General to delegate
his authority to grant emergency orders is very welcome and I
believe very appropriate.
So, first of all, who is the target?
Second, where is the target?
As I said earlier, geography is becoming less relevant. In
the age of the Internet and a global communications grid that
routes communications by the cheapest available bandwidth
available each nanosecond, should our statutes presume that all
communications that touch America be equally protected?
As the Chairman noted earlier this week, we do not limit
our liberties by exempting from FISA's jurisdiction
communications between two persons overseas that happen to get
routed through U.S. facilities.
Frankly, I think our limited resources should focus on
protecting U.S. persons, not those entities who might get
covered as a result of technological changes that have extended
the impact and then the protection of FISA far beyond what its
drafters could ever have intended.
I know that Senator DeWine among others has been concerned
about the allocations of these resources and FISA backlogs.
And, frankly, now as Director of CIA, who must provide the
predicate for FISA orders, I share his concerns in allocating
resources and hope the legislation will help us properly focus
resources on protecting the legitimate privacy rights of U.S.
persons.
Now, beyond who and where is the target, there is the
question of how do we intercept the communication.
For reasons that seemed sound at the time of enactment, the
current statute under which we operate makes a distinction
between collection ``on a wire'' and collections out of the
air. Now, when the law was passed, almost all local calls were
on a wire and almost all long-haul communications were in the
air. Now, in an age of cell phones and fiber-optic cables, that
is totally reversed--with powerful and unintended consequences
for how NSA can lawfully acquire a signal. Legislators in 1978
should not have been expected to predict the future of global
telecommunications, and neither should you. My view is that the
statute we develop should be technology neutral.
And then, finally, beyond how do we intercept the
communication, there is a question of where. Where do we
intercept it?
A single communication can transit the world even if the
communicants are only a few miles apart. That happens
routinely. And in that transit, NSA may have multiple
opportunities to intercept it as it moves and as it changes
medium. As long as a communication is otherwise lawfully
targeted, I believe we should be indifferent to where the
intercept is achieved. Signals intelligence is a difficult art
and science, particularly in today's telecommunications
universe. Intercept of a particular communication--one that
would help protect the homeland, for example--is always
probabilistic. It is never deterministic. No coverage is
guaranteed. We simply need to be able to use all the technology
tools we have.
In that light, as I said earlier, there are no
communications more important to the safety of the homeland
than those affiliated with al Qaeda with one end of the
communication in the United States. And so why should our laws
make it more difficult to target the al Qaeda communications
that are most important to us--those entering or leaving this
country.
Because of the nature of global telecommunications, we are
playing with a tremendous home field advantage, and we need to
exploit that edge. We also need to protect that edge, and we
need to protect those who provide it to us. The proposed
legislative language that requires compulsory compliance from
carriers is a very important step in this regard.
After 9/11, patriotic Americans from all walks of life
assisted us, the intelligence community, in ensuring that we
would not have another attack on our soil. Even prior to 9/11,
we received critical assistance across the intelligence
community from private entities. As Director of NSA, as Deputy
DNI, now as Director of CIA, I understand that Government
cannot do everything. At times, we need assistance from outside
Government.
Whatever legal differences and debates may occur about
separation of powers, Article II, and other critical and very
important issues, those people who help to protect America
should not suffer as a part of this debate. I would urge the
Committee to recognize the importance of those efforts of these
Americans and provide appropriate protections.
One final and very important point. Many of the steps
contained in the proposed legislation will address the issue
raised by the Congressional Joint Inquiry Commission: back
again, one end U.S. conversations, communications that that
Commission characterized as, again quoting, ``among the most
critically important kinds of terrorist related communications
. . . .''
That means my friend here, General Alexander, and his
agency, NSA, will bump up against information to, from, or
about U.S. persons. Let me stress that NSA already routinely
deals with this challenge and knows how to handle it while
protecting U.S. privacy. I was very happy to note that the
draft bill contains quite a bit of language about minimization
and minimization procedures. Minimization is the process that
NSA uses to protect U.S. privacy, to protect U.S. identities.
The same rules of minimization that NSA now uses globally,
rules that are approved by the Attorney General and thoroughly
briefed to Congress, will be used under any activities that are
authorized by the pending legislation.
Let me close by saying that we have a great opportunity
here. We can meet the original intent of the FISA Act to
protect our liberty and our security by making the legislation
relevant to both the technologies and the enemies we face.
Thank you very much, and I know my colleagues have opening
statements, but after them, I would be very happy to take
questions.
[The prepared statement of General Hayden appears as a
submission for the record.]
Chairman Specter. Thank you very much, General Hayden.
We now turn to Lt. General Alexander, who is now the
Director of the National Security Agency. His bachelor's degree
is from West Point; master of science in business
administration from Boston University; master's degree in
physics from the Naval Postgraduate School; another master's
degree in national security strategy; has had a distinguished
array of assignments and awards, and they will all be made a
part of the record.
We appreciate your service, General Alexander. We
appreciate your coming in today, and the floor is yours.
STATEMENT OF LT. GENERAL KEITH B. ALEXANDER, DIRECTOR, NATIONAL
SECURITY AGENCY, CHIEF OF THE CENTRAL SECURITY SERVICE,
WASHINGTON, D.C.
General Alexander. Thank you, Mr. Chairman. Good morning,
Mr. Chairman, Senator Leahy, and members of the Committee. Sir,
I have submitted a formal statement for the record. I will
provide a brief summary of that statement at this time.
Chairman Specter. Your full statement will be made a part
of the record.
General Alexander. Thank you, sir.
I am pleased to be here today to provide testimony in
support of the National Security Surveillance Act of 2006,
which would amend the Foreign Intelligence Surveillance Act of
1978. The changes proposed in the bill are, I believe, intended
to recapture the original Congressional intent of the statute--
ensuring the rights of the American people, our original
Congressional intent, in providing for our Nation's security.
As General Hayden indicated in his remarks, this is an
important conversation not only for the intelligence community
that will be called on to abide by the statute, but for all the
American people. Advances in technology have had some
unanticipated consequences in how the National Security Agency
carries out its duties.
While some of the specifics that support my testimony and
support passage of this bill cannot be discussed in open
session, and while I would be happy to elaborate at any time,
sir, the content of that, let me succinctly say that
communications technology has evolved in the 28 years since the
bill was established in 1978 and today in ways, as General
Hayden says, that were unforeseen by the folks who built that
bill. The stunning technological changes in the communications
environment that we have witnessed since the enactment of FISA
have brought within the scope of the statute communications
that we believe the 1978 Congress did not intend to be covered.
A tremendous communications infrastructure has emerged in
the United States, and both our own citizens and foreign
persons outside the country use its awesome capabilities. The
drafters of the FISA did not and could not have expected to
anticipate this. The result, though, as General Hayden's
testimony suggested, is that the U.S. Government is often
required by the terms of the statute to obtain a court order to
conduct surveillance of a target, of a foreign individual
operating overseas but using that infrastructure. We believe
the United States should be able to acquire communications of
foreign intelligence targets overseas without a court order and
that it ought not to matter whether we do so from the United
States or elsewhere or how a particular communication makes its
way from Point A to Point B.
But because of the way the statute defines ``electronic
surveillance,'' we frequently fail to make the most of one of
the greatest advantages we have over our foreign adversaries:
ready access to their communications present on a vast
communications infrastructure located in our own Nation.
We believe that the FISA of the future must contain a few
critical provisions if the Government is to be successful in
gathering intelligence about its adversaries.
First, the statute needs to be technology neutral.
Determinations about whether a court order is required should
be based on considerations about the target of the surveillance
rather than the particular means of communication or the
location from which the surveillance is being conducted.
Second, we must retain a means to compel communications
companies to provide properly authorized assistance to the
Government, and we must insulate those companies from liability
when they do so.
Third, the statute's definition of ``agent of a foreign
power'' should be sufficiently broad to include visitors to the
United States who may possess foreign intelligence information,
even though they are not working on behalf of any foreign
government.
The Senate bill that we are looking at would effect the
required changes.
In closing, let me again express my thanks to the entire
Committee for taking up this difficult but crucial issue--
balancing the security of this country and the civil liberties
of our people. And thank you for allowing those of us who will
implement that balance the opportunity to participate in this
hearing.
[The prepared statement of General Alexander appears as a
submission for the record.]
Chairman Specter. Thank you very much, General Alexander.
We now turn to Steven Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel. He had been the Principal
Deputy Assistant Attorney General in the same Department.
Bachelor's degree from Stanford; a law degree from Michigan
magna cum laude; has had a distinguished career in private
practice and was a law clerk to Judge Buckley of the D.C. Court
of Appeals.
At the outset, Mr. Bradbury, I want to publicly acknowledge
your legal abilities and your courtesies in working through the
drafting of the legislation which we are considering today,
jointly with Michael O'Neill, the Chief Counsel and Staff
Director of the Judiciary Committee.
We are pleased to have you here today, and we look forward
to your testimony.
STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Bradbury. Thank you, Mr. Chairman. It has been a
pleasure to work with you and Mr. O'Neill, and it is a pleasure
to be back before the Committee today.
Mr. Chairman, Senator Leahy, Senator Kennedy, members of
the Committee, foreign intelligence surveillance is a critical
tool in our common effort to prevent another catastrophic
attack on the United States. The enemies we face operate in
obscurity through secret cells that communicate globally while
plotting to carry out surprise attacks from within our
communities. We all recognize the fundamental challenge the war
on terror presents to a free society: to detect and prevent the
next 9/11, while steadfastly safeguarding the liberties we
cherish. Maintaining the constitutional balance between
security and liberty must be the polestar in any legislative
effort to reframe the FISA statute.
The past 28 years since the enactment of FISA have seen
perhaps the greatest transformation in modes of communications
in the history of the world.
Innovations in communications technology have fundamentally
transformed how our enemies communicate and, therefore, how
they plot and plan their next attacks. It is more than a little
ironic that al Qaeda is so expert in exploiting the
communications tools of the Internet age to advance extremist
goals of intolerance and tyranny that are more suited to the
12th century than the 21st. Meanwhile, the United States
confronts the threat of al Qaeda with a legal regime geared
more toward traditional case-by-case investigations.
The limitations of the traditional FISA process and the
acute need to establish an early warning system to detect and
prevent further al Qaeda attacks in the wake of 9/11 led the
President to authorize the Terrorist Surveillance Program. As
he has described, that program, which has been the subject of
prior hearings before this Committee, involves the NSA's
monitoring of international communications into and out of the
United States where there are reasonable grounds to believe
that at least one party to the communication is a member or
agent of al Qaeda or an affiliated terrorist organization.
This Committee is currently considering several pieces of
legislation addressing FISA and the Terrorist Surveillance
Program. I want to thank the Chairman again for his leadership
on these issues and for his hard work in crafting a
comprehensive approach that will help us fight terrorists more
effectively and gather critical foreign intelligence more
efficiently. I also wish to thank Senator DeWine, who has also
introduced a bill, cosponsored by Senator Graham, which
represents a very positive approach to the issues presented by
the Terrorist Surveillance Program. The administration urges
the Committee to approve both of these bills promptly, and we
look forward to working with the Congress as a whole as this
legislation moves ahead and with the Intel Committees, in
particular, where technical changes can be appropriately
discussed to ensure that FISA as amended will provide the
Nation with the tools it needs to confront our adversaries.
Fundamentally, Chairman Specter's legislation recognizes
that in times of national emergency and armed conflict
involving an exigent terrorist threat, the President may need
to act with agility and dispatch to protect the country by
putting in place a program of surveillance targeted at the
terrorists and designed to detect and prevent the next attack.
At the same time, however, Chairman Specter's legislation
will provide an important new role for the judicial branch in
the review of such Presidential programs, in addition to
oversight by the Intelligence Committees of the Congress. His
bill would add a new title to FISA under which the FISA Court,
subject to certain requirements, would have jurisdiction to
issue an order approving a program of terrorist surveillance
authorized by the President. This legislation would create for
the first time an innovative procedure whereby the Attorney
General will be able to bring such a surveillance program
promptly to the FISA Court for a judicial determination that it
is constitutional and reasonable, in compliance with the
requirements of the Fourth Amendment. The FISA Court would also
be authorized to review the particulars of the program and the
minimization procedures in place, to help ensure that the
surveillance is focused on the terrorist threat and that
information collected about U.S. persons is properly minimized.
The availability of these procedures and the ability of the
FISA Court to issue an order approving a program of electronic
surveillance will strongly encourage Presidents in the future
to bring such programs under judicial supervision.
As Chairman Specter has announced, in response to this
proposal and the other positive innovations contained in the
Chairman's bill, the President has pledged to the Chairman that
he will submit his Terrorist Surveillance Program to the FISA
Court for approval, if the chairman's legislation were enacted
in its current form, or with further amendments sought by the
administration.
Chairman Specter's legislation would also protect sensitive
national security programs from the risk of disclosure and
uneven treatment in the various district courts where
litigation may be brought. Under his bill, the United States,
acting through the Attorney General, could require that
litigation matters putting in issue the legality of alleged
communications intelligence activities of the United States be
transferred to the FISA Court of Review, subject to the
preservation of all litigation privileges. The Court of Review
would have jurisdiction to make authoritative rulings as to
standing and legality under procedures that would ensure
protection of sensitive national security information and
promote uniformity in the law.
In addition to the innovations I have described, Chairman
Specter's legislation includes several important reforms to
update FISA for the 21st century. These changes are designed to
account for the fundamental changes in technology that have
occurred since FISA's enactment in 1978, and to make FISA more
effective and more useful in addressing the foreign
intelligence needs of the United States in protecting the
Nation from the unique threats of international terrorism.
Mr. Chairman, thank you for the opportunity to appear today
to discuss this important issue. We look forward to working
with Congress on this critical matter, and today we urge the
Committee to give speedy approval to the bills introduced by
Chairman Specter and Senator DeWine.
Thank you.
[The prepared statement of Mr. Bradbury appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Bradbury.
After consultation with Senator Leahy, we are going to set
the rounds at 7 minutes for members, and we will proceed to
that now.
General Alexander, there would be much more comfort by
everyone, including myself, if we could have individualized
warrants so that the FISA Court would function as it does now.
An application is made. There is a showing of what the
Government contends is probable cause, and there is an
individualized determination on granting the warrant. Now, it
has been reported that the program in operation is so massive
that that cannot be accommodated.
If any of this requires going into closed session,
gentlemen, we are prepared to do that. But to the extent you
can comment publicly, I think there is great merit in it so
that there is an understanding of the program to the maximum
extent consistent with national security.
So my question to you, General Alexander: would it be
possible with additional resources to structure a program, to
get what information you are getting here on an individualized
basis?
General Alexander. Sir, let me answer that this way--and I
would ask Steve to make sure I say it exactly correct. But as
General Hayden, Steve, and I have laid out for you, if you take
away the foreign portion of that, where the true bill asks us
to get a warrant on a U.S. person in the United States, if you
take out foreign, overseas, other targets that we are talking
about, which your bill does do, you are now back to a
manageable level. And getting a court order for everyone in the
United States is doable and one that we think should be done in
that regard, and it is in the statute.
So the real issue is intermixed into the domestic is the
foreign. Your bill separates that and makes it manageable.
Chairman Specter. Well, let me focus the question more
pointedly in light of what you just said. Is it possible to
have individualized warrants where your focus is on a foreign
speaker, but your invasion necessarily involves a citizen in
the United States? Would it be practical to have individualized
warrants and still carry out the program which you have now?
General Alexander. Well, there is the technology part of
the thing that we each discussed briefly which would--
Senator Feinstein. Could you speak up, please?
General Alexander. Yes, ma'am. This is the part that we
each discussed briefly in that if overseas we are collecting a
foreign--going after a foreign target, no matter who that
person is talking to, we are authorized under Executive order
to collect that communications. That is the where. If we
collect it here and it happens to go to a U.S. person, we have
to stop and get a court order.
So the predominant number of our targets are foreign
targets, and the question is: If we make every foreign
application, because we are using the infrastructure in the
United States, an application that we have to do here in the
United States, you have cut out the most important advantage
that we have--our communications infrastructure.
Chairman Specter. General Hayden, let me move to another
question with you. You said that there has been some help,
assistance, in not having another attack on our soil. One of
the key factors is evaluating the intrusion on privacy. How
valuable is the information which is obtained? Can you amplify
in open session whether information obtained has prevented
another attack? Or to what extent has that information been of
significant value for national security in weighing the
balancing act of invasion of privacy?
General Hayden. Yes, sir, Senator. In open session I will
have to speak in generalities, but I can say with great
confidence in all three positions--CIA, DNI, and particularly
NSA--in broad terms, the support we get from the broader
community of America in all of its shapes and forms has been
absolutely invaluable in helping in this case NSA do its
mission.
Chairman Specter. Can you say whether it has ever prevented
another attack?
General Hayden. I can say that the program that we are
talking about here, the Terrorist Surveillance Program, has
been used to disrupt and degrade enemy activity, to break up
cells. Can I claim that, you know, there was a sniper on the
roof with a round in the chamber and we intercepted it at that
point? No. But we have gotten information we would not
otherwise have had, and it has enabled us to disrupt clear al
Qaeda attempts to do harm inside the United States.
Chairman Specter. General Hayden, moving to another issue,
when you have the information going to the FISA Court with its
secrecy provisions, contrast that with going, say, to a
district court, say in San Francisco, with respect to the
complexity of the issues, as to the explanation of the nature
of the program--and I am open to having other courts besides
the FISA Court consider the program. I am not concrete on that.
In order to get the President's signature to a modified bill,
we have to have his agreement. But when we had the
negotiations, we talked about changes to the bill. The
President wants some improvements in the bill. They would have
to be negotiated to his satisfaction. And in wrestling with
this issue of consolidation in the FISA Court, we have done so
because we know that the FISA Court has a background in the
program, has an understanding of the national security risks,
knows the details of the program. And we are considering
whether it ought to be another court, so that is an advantage
in having other judges and not necessarily having in a secret
court. And we have to work through the question as to a public
disclosure. When we had an opinion of the FISA appellate court,
it was made public, and I think the decision of the FISA Court
would reach the public one way or another.
But contrast, if you will--and my red light is not quite on
yet. Contrast, if you will, taking the cases to district court,
like San Francisco, contrasted with the FISA Court.
General Hayden. Mr. Chairman, I am personally delighted
that these issues would be placed in front of a court that, No.
1, is most knowledgeable about this whole universe of activity
and understands in actually, I think, very clear terms what NSA
does as a matter of routine and understands the care with which
the agency guards privacy and can make an accurate assessment
of the issue that is placed in front of the Court. And I would
then add that having it in front of a single court I think
actually helps the cause of justice so that there is a unitary
national view as to what constitutes the correct balance, the
correct line, as Steve has mentioned earlier, between security
and liberty.
Chairman Specter. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
General Alexander, in my opening statement I mentioned that
FISA has been amended six times in the last 5 years. Now, to my
knowledge, the administration never in that time asked for any
of the changes that are contained in Section 9 of the
Chairman's bill. To the contrary, the administration has
repeatedly said that the 2001 PATRIOT Act updated and
modernized FISA. And so if Section 9s provisions were so
essential, why didn't we hear about them before now? Why this
sudden demand for an overhaul of FISA?
General Alexander. Sir, I don't know the exact answer for
why it was never brought forward, but I can tell you there was
great concern about revealing to an adversary an advantage that
we had by making public some of the things that we could do.
That has happened in the press--
Senator Leahy. Well, let me follow that a little bit. I am
told that this request originated at the NSA. Is that correct?
General Hayden. Yes, sir.
Senator Leahy. So I would ask this of you, General
Alexander, and then General Hayden. Earlier this year the
administration said it did not ask Congress to authorize the
so-called Terrorist Surveillance Program, according to what you
started to say, because talking about it may tip off our enemy.
Do you think our discussion today about possible amendments to
FISA is doing that?
General Alexander. I do not believe the amendments that
have gone in the past have gone to the extent that we are
talking about in this change of this bill here. Specifically,
we have never brought forward the specifics on the advantage
that we have in our home communications, our U.S.--
Senator Leahy. Do you believe this discussion is tipping
off our enemies in any way?
General Alexander. We have to be concerned, sir. Clearly,
we do not want to give any advantage to our adversaries, and so
the hesitancy is not just my own ignorance on this, but making
sure that I do not say something that would--
Senator Leahy. General Hayden.
General Hayden. Yes, sir. When the program began the
Terrorist Surveillance Program, we at NSA felt we had two
lawful approaches in which to conduct our operations against al
Qaeda--one is outlined in the traditional FISA Act, one under
the President's authorization. We were quite happy to use both
authorities, and we did. And in discussions as to whether or
not we should move what had been authorized by the President
under both his constitutional authorities and the
administration's reading of the AUMF, in the discussions of
whether or not we should move that under the FISA Act, it
really was a compelling concern as to how much of this could be
discussed in open session.
What has happened in the last 7 months is much of this
program has already been put out into the public domain. That
inoculates some of the discussion we are having today against
some of the down sides. But, Senator, there will be questions,
I am sure, you will ask any of the three of us that we will not
be able to answer in open session.
Senator Leahy. Let me ask Mr. Bradbury, when Attorney
General Gonzales testified last week, he agreed with Senator
Specter that the language in his bill that repeals FISA's
exclusivity provision and recognizes the President's inherent
authority to collect foreign intelligence is essentially
meaningless. To quote the Attorney General, ``It does not
change the status quo.''
If that is the case, can I assume you would have no
objection to striking this language in the bill if all it does
is state the status quo? Yes or no.
Mr. Bradbury. I am not able to answer that yes or no,
Senator. I will say this: In our approach to these issues--and
I think it is reflected in the legal analysis presented in our
paper back in January on this program--it has always been our
approach to endeavor to avoid a constitutional clash between
the branches. And we think that is the way a court would
address these issues.
Senator Leahy. But the Attorney General said--do you agree
with the Attorney General when he says all this does is state
the status quo?
Mr. Bradbury. Well, the status quo certainly is the case,
Senator, that the President has authority under Article II--
Senator Leahy. Do you agree with the Attorney General?
Mr. Bradbury.--and the status quo is as the Court of
Review--
Senator Leahy. But my question--
Chairman Specter. Let him finish his answer.
Senator Leahy. But he is not answering my question.
Chairman Specter. Well, let him answer.
Senator Leahy. Do you agree with the Attorney General?
Mr. Bradbury. I agree that as the Court of Review, the FISA
Court of Review has stated that the FISA statute cannot take
away the President's constitutional authority.
Senator Leahy. OK. So I do not know whether you agree with
the Attorney General or not. I will let you discuss it with him
whether you agree with him or not.
Suppose the Government wants to monitor a telephone
conversation or e-mails coming into the United States from
American soldiers who are serving in Iraq. Now, let's stipulate
it does not apply--it is not being done--this is for you, Mr.
Bradbury. It is not being done for law enforcement purposes, so
Title III does not apply. Now, under current law, if the
Government acquires these communications off wires in the
United States, it would need a warrant. What about under the
new definition of ``electronic surveillance'' in the Chairman's
bill? Would the Government still need a warrant to intercept
communications from our men and women in Iraq to their family
members back at home?
Mr. Bradbury. If you are talking about a communication
which is international and if you are not targeting a person in
the United States to try to collect information about that
person in the United States, it would not fall within the
amended definition of ``electronic surveillance.''
Senator Leahy. So you would not need a warrant to collect
it. They are e-mailing to their parents, spouses, and what-not
back home. You would not need a--
Mr. Bradbury. If you are attempting to collect information
about persons in the United States, which you--
Senator Leahy. No, no.
Mr. Bradbury. It depends--
Senator Leahy. No, no. I left out--I said there is no law
enforcement. It simply--
Mr. Bradbury. Well, it does not have to--Senator, it does
not have to be law enforcement. Any effort to collect
information about persons in the United States would fall
within the definition of ``electronic surveillance'' if you are
targeting those persons. So you really need to look at--and
that is, I think, the fundamental point that the Generals have
made, is what we believe the statute ought to focus on is who
is it you are trying to collect information about and--
Senator Leahy. I made it very clear. I said that you have a
soldier in Iraq--let's make it even clearer. A soldier in Iraq
is sending an e-mail to his wife. He is not of any interest to
law enforcement. He is not suspected of doing any crime or
anything else. Would you need a warrant to collect that e-mail
or could you just pick it up and put it into your Government
banks?
Mr. Bradbury. Well, I will say, Senator, that today under
existing law, if you are collecting that internationally
flowing communication anywhere else in the world, you can do
that without any court approval. That is done today pursuant to
Executive Order when it is done for national security purposes.
Now, these agencies operate for national security purposes
and not simply to eavesdrop on people's private conversations
when there is not any national security interest or foreign
intelligence--
Senator Leahy. Would your message be, then, that somebody
sending an e-mail to their spouse back here from Iraq, they
probably better be pretty careful what they say, that it is
going to be in a Government data base somewhere?
Mr. Bradbury. No, I would not because, as I have tried to
just indicate, all of the authorities of these agencies, when
they are operating today, Senator, under Executive Order--it is
called Executive Order 12333, which we have existed under since
the 1970s. The only collection that these agencies can do under
that Executive Order is for foreign intelligence purposes. That
is quite apart from any statutory requirements under FISA. So
there is no listening in except for foreign intelligence
purposes. And that is the fundamental point. It does not matter
whose communication you are listening in to or where it is
collected. It has to be for foreign intelligence purposes.
Senator Leahy. That does not answer the question, but I
will go into it on my next round.
Chairman Specter. The vote is under way. We are going to
adjourn very briefly. Senator Cornyn and I are going to be very
swift in moving over and back, and when we come back, we will
pick up with Senator Cornyn.
We stand in recess for just a few minutes.
[Recess 10:10 a.m. to 10:27 a.m.]
Chairman Specter. The Committee will resume.
Senator Cornyn.
Senator Cornyn. Well, thank you, Mr. Chairman, and I want
to express my gratitude to the witnesses for being here today
to talk about this important subject. I would hope that we
could all start from a basic premise, and that is that we
should use all legal means available to us to collect
information from our enemies that would help us fight and win
the global war on terror. I think that we would all agree with
that. I am confident you would. Sometimes I wonder when I hear
some of the public debate.
But I want to maybe start with you, Mr. Bradbury. Early on,
when the New York Times broke the story about the Terrorist
Surveillance Program, there were allegations that there had
been a violation of the law, that this was unlawful. But as the
Chairman pointed out, my recollection is there have been at
least three courts that have expressly acknowledged the
President's inherent power under the Constitution to collect
foreign intelligence during a time of war. Is my recollection
correct?
Mr. Bradbury. That is correct, Senator. The Fourth Circuit,
the Second Circuit, other circuits--in fact, more than three,
and then, of course, the FISA Court of Review acknowledged
that.
Senator Cornyn. Well, that was going to be my next point.
The very court that Congress created to oversee the decisions
of the Foreign Intelligence Surveillance Court and the FISA
Court of Review has acknowledged in a written opinion the
President's inherent authority under Article II to conduct, in
essence, this battlefield intelligence gathering. Isn't that
right?
Mr. Bradbury. That is correct, Senator.
Senator Cornyn. Are you aware of any court that has held
the Terrorist Surveillance Program to be unlawful?
Mr. Bradbury. No, Senator. No court has reached that issue.
Senator Cornyn. So the only courts that have spoken to it
have held that this is a lawful exercise of the President's
authority under the Constitution.
Mr. Bradbury. The only decisions from courts are that the
President generally has authority under Article II to protect
the country through foreign intelligence surveillance.
Senator Cornyn. Well, I would hope that--because I think I
agree with your assessment. That is certainly my understanding.
And I would hope that those who would try to scare people or
make allegations of rampant sort of unlawful or rogue conduct
would bring their rhetoric down a little bit because, in fact,
the only decisions we do have from courts indicate that the
President does have that authority under appropriate
circumstances.
I want to also ask General Hayden and General Alexander,
there was some statement made earlier on in the hearing today
that the capability that the NSA has been using, that the U.S.
Government has been using, to intercept international
communications between al Qaeda operatives and folks here in
the United States who may be their allies, that this is somehow
unchecked authority. But I just want to ask a little bit about
that.
It is my recollection that this program is reviewed every
45 days internally within the NSA and the administration. It is
my recollection that it has been briefed to the FISA Court
judges, if not all of them, at least the chief judge, and maybe
some others, and if you can help me there.
It has also been briefed since the inception to leaders on
a bicameral and a bipartisan basis, the leaders of the House
and the Senate, as well as the Chairmen and Ranking Members of
both the House and Senate Intelligence Committees. Did I
summarize that correctly?
General Hayden. Yes, sir. That is correct, Senator.
Senator Cornyn. Well, to me that seems like it comes in
some conflict with the idea that this authority is unchecked,
and that is my conclusion. You do not have to agree or
disagree.
One reason I support Senator Specter's bill is because it
does acknowledge this authority, but it creates a way to try to
accommodate the legitimate concerns that Members of Congress
have and to make sure that Congress is a full partner in the
process of striking the balance, General Hayden, that you
talked about between privacy concerns and our ability to
collect intelligence by all lawful means.
Mr. Bradbury, I wonder, though, if you could tell me, do
you view this bill to be a substantial change from the status
quo? There was some question about that. Or is it a
ratification, more or less, by Congress that the President has
that authority and then create other procedures that are
essentially consistent with what is already happening now?
Mr. Bradbury. Well, of course, Senator, as the Chairman
made clear in his opening remarks, the status quo today is that
the President has exercised his authority, both under the
Constitution and his view of the Authorization for the Use of
Military Force and has established a Terrorist Surveillance
Program independent of FISA in an effort to try to detect
communications that may be leading to another attack on the
country. And so this legislation would recognize that existing
fact, but it would make a very substantial change in FISA today
by adding a new title that would give the Court jurisdiction to
review such a program on a program-wide basis, and that is an
important new tool that any President would have going forward.
And it is because of that innovative new tool that would really
allow for efficient judicial review of such a program in
wartime, that the President would take the program then to the
Court for its review.
So I applaud, again, the Chairman for the legislation and
for that effort, because I do think that is a very important--
would be a very important change in the current statutes.
Senator Cornyn. Well, thank you very much for that
clarification, and I think you are certainly correct.
I know, General Alexander, there was some question about
whether the NSA was intercepting Internet communications
between a soldier in Iraq and their family members at home. You
are a soldier, are you not, sir?
General Alexander. Yes, sir.
Senator Cornyn. And you certainly, I know, have an interest
in not undermining the privacy rights of an American citizen
serving his country and defending freedom in Iraq. Are you
spending your time targeting American citizen soldiers in Iraq
in your spare time?
General Alexander. No, sir, we are not, nor would we. If we
do, we have procedures through the Attorney General overseas,
if it is against a U.S. person, or a court order here in the
United States. And both of those would be followed.
I would tell you, I would be more concerned about other
nations looking at our soldiers, which they do, and terrorists.
And so the fact that we can do it, others can do it, too. And
so the greatest concern is the Operation Security that goes
along with the soldier communications, which they in Iraq know
very well. And as you know, sir, from the soldiers there, they
treat OPSEC as very important to their own survival.
General Hayden. Senator, could I just emphasize a point
that General Alexander brought up? The procedures in place
today, which will not be affected by the act before the
Committee, is that in order to target a protected person, a
U.S. person--and that definition goes beyond just citizens of
the United States. In order to target a protected person
overseas, it now requires, well, now General Alexander to make
a case to the Attorney General that this is for foreign
intelligence purposes and that the target of the activity is
the agent of a foreign power. And that would not be changed by
the legislation.
Mr. Bradbury. I am sorry. Just to emphasize that triply,
what I mentioned before in response to the question from
Senator Leahy is that there are authorities today under
Executive Order to do foreign intelligence surveillance. But
those authorities, if you are talking about targeting the
communications of a U.S. person, like a U.S. soldier in Iraq,
require both that it be for a foreign intelligence purpose and
that the Attorney General expressly approve it. And that is
under existing Executive Order. That would remain unchanged by
this legislation.
Senator Cornyn. Thank you.
Chairman Specter. Thank you, Senator Cornyn.
Senator Kennedy.
Senator Kennedy. Thank you very much, and I want to thank
the panel, thank them for their service to the country,
impressive backgrounds, experience and commitment.
I was here when we did the FISA legislation. At that time,
in 1976, President Ford and Attorney General Levi, worked very
closely with the Judiciary Committee, the President and the
Attorney General, and we worked out the FISA. It was enormously
complex and complicated at that time, and the range of
intelligence challenges are like an echo that I hear this
morning. Everyone understood that there was cutting-edge, there
was new information, dangerous times. And, we were able to work
out legislation that only had one vote in opposition to it in
the U.S. Senate, and it has worked.
Obviously, there are suggestions and recommendations that
could be made, but it worked and it had the confidence of the
American people and the confidence of Congress about the
protections of rights and liberties and also in getting
information. All of us are in the same boat in terms of al
Qaeda and the dangers that threaten this country. But as you
have all eloquently stated, there is the balance between
security and also the liberties with which we have to deal. And
that is what many of us had hoped, that we would be able to
work within this balance and the administration would work with
us. We can handle sensitive and secret information and
establish a process that I think would have given the American
people the confidence that all of us were working together,
Republican and Democrat, the President and the Congress, in a
bipartisan way to really get at the core dangers that we were
facing in protecting liberties. And that is what I think
continues as the challenge, and the fact that we are still
working on this is just enormously important.
But that is the departure point, and there still continues
to be frustration that we are unable to get to that point and
do not have all of the information that we should have in order
to legislate. The American Bar Association emphasizes the
challenges that we are continuing to face under the
circumstances.
I am interested, in the time that I have, if you can just
tell us--and we are very conscious of the facts that there is
sensitive information on this. But can you tell us now the
extent to which this is actually affecting Americans, Americans
here at home? What we are talking about is to what extent are
they included in this program?
General Hayden. Senator, I will start since I was there
when the program began.
Senator Kennedy. Okay.
General Hayden. And I mean this very sincerely. Nothing
more important to the people conducting this program than the
privacy of Americans.
Senator Kennedy. Good.
General Hayden. We understand--
Senator Feinstein. Could you speak up, please?
General Hayden. Yes, ma'am. Nothing more important in the
conduct of this program than the privacy of Americans. After
the story broke in the New York Times, I went out to talk to
the NSA workforce that is involved in this, and it struck me
that on the walls of the office in which this activity is
conducted, there was a large poster that said, ``What
constitutes a U.S. person? '' And the four different approaches
by which one could gain the protection of a U.S. person were
spelled out there, even in the bowels of the office that is
responsible for this program. It is done very carefully. It is
very targeted. There is a probable cause standard, before any
communication is intercepted, that one or both communicants is,
again, to a probable cause standard, associated with al Qaeda.
So I know the sensitivities, Senator, and NSA is a powerful
and a secretive organization. Those are the two things our
political culture distrusts the most. But this is done with
great care.
Senator Kennedy. Well, I understand that, and the standard
then is a probable cause standard. Is that correct?
General Hayden. That is correct.
Senator Kennedy. All right. But the question was: To the
extent that Americans are included in this, can you tell us, or
is that--what is the extent, what is the range?
General Hayden. We have briefed the precise numbers to all
members and some members of staff of both Intelligence
Committees, Senator.
Senator Kennedy. But even in the range--if you can't, you
can't. But, I mean, are we talking about 20,000? Are we talking
2 million? You can't do--
General Hayden. I am not able to.
Senator Kennedy. Can you tell us whether any of these are
under continuing surveillance, that is, they go on for not only
just a conversation but whether they are continuing, whether
there are Americans that are subject to a continuing--this was
an issue when we passed the FISA. Attorney General Levi spoke
about this issue and question in terms of the legality of it,
and this is an area that obviously is of concern. Can you tell
us?
General Alexander. Sir, if I can give you two things here
in open session. The overwhelming focus in our collection is
against the foreign entities by a tremendous margin, and
everyone who has read into that is amazed when they see that.
First and foremost, predominantly foreign. There are U.S. parts
to that, and I cannot go into the details of the lengths of
that. But it is all focused on the al Qaeda, and it is
predominantly foreign.
Go ahead, sir.
General Hayden. I would just offer a point to make it very
clear. The President has said a communication we believe to be
affiliated with al Qaeda, associated with al Qaeda, one end of
which is in the United States, and we believe at least one end
we have a probable cause standard is al Qaeda. As General
Alexander points out, overwhelmingly the end we believe to be
affiliated with al Qaeda is a foreign end.
Senator Kennedy. All right. And so just about the question
of continuing and ongoing versus a single conversation, the
extent of that, General Alexander?
General Alexander. Sir, I am not sure I understand.
Senator Kennedy. One thing is where you are listening to a
conversation. The other is where you have the wiretap
continuing for 24 hours a day.
General Alexander. Right. Sir, we go through a very
deliberate process to listen in on any conversation, just
because of the sheer resources, whether it is in this program
or any other program. And so as we started out, we know it is
one end foreign. You cannot physically listen to millions of
phone calls, nor would we. We are going to focus it down onto
the most important ones, and we have ways and methods to do
that that we should not discuss here.
Senator Kennedy. All right. I am going to run out of time
here, but let me ask you: Has any of the information that has
been gathered to date in any of this been used in any legal
proceedings here in a court or any trials to date?
General Hayden. Senator, the process used is the process by
which we use any foreign intelligence, and it moves outside of
the intelligence community with all the appropriate caveats on
it in terms of how it can be used in judicial procedures.
Senator Kennedy. But can you tell us whether it has or has
not been used?
General Hayden. I don't know, Senator, again, because we
put the caveats on it--
General Alexander. Lead and investigative--
General Hayden. Lead and investigative purposes is what it
says.
Senator Kennedy. My time is up, Mr. Chairman. Thank you.
Chairman Specter. Thank you, Senator Kennedy.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you for the hearing. I would like to just say one thing,
and that is, as a member of the Intelligence Committee, I have
been briefed on the program. And I am strongly opposed to
giving this President or any President the right to collect
content--to collect content on United States persons without a
warrant. And today for the first time we heard General
Alexander state that if the foreign-to-foreign switching is
taken care of, the program is easily accommodatable to an
individual warrant for U.S. persons in content collection. Is
that not correct, General?
General Alexander. Not quite, ma'am, if I might just state
it in my words: that if the foreign selectors that we are going
after, which some of those--it depends on where the target is,
and this goes back to the definition of ``electronic
surveillance.'' And so it is not necessary--if we are going
after a terrorist in country A and he is talking to somebody in
country B, we are authorized to go after that. If that same
terrorist we are targeting happens to go into the United
States, we are authorized to collect that overseas also and
minimize the U.S. person's data.
The issue that I was describing is now, under the current
FISA, if I collect that in the United States, I have to get a
warrant for it. So what you would have us do is overseas I
could do it and minimize it. Today I lost the advantage of
being able to do that in the United States. If that portion of
the targeting in the definition of this ``electronic
surveillance'' we believe that is adjusted in this proposal
that meets both of those and that that would then allow us to--
Senator Feinstein. And both ends are foreign to foreign?
General Alexander. Not necessarily. The target of the
selector is foreign, and the question is where are they
calling.
Senator Feinstein. Well, I know those numbers, too.
General Alexander. Right.
Senator Feinstein. And I do not think that those numbers
are necessarily prohibitive from a FISA warrant, nor do I
believe that it would take that much time for a FISA warrant.
General Alexander. But it would require us, ma'am, if I
might, it would require us to get a FISA on every foreign one
in advance because we do not know who they are calling until it
has happened.
Senator Feinstein. Oh.
Mr. Bradbury. Senator, may I also just add a point, if I
might?
Senator Feinstein. Certainly.
Mr. Bradbury. In the Chairman's legislation, there would
also be a number of other reforms to FISA which would greatly
assist in the general ability to get FISAs even for domestic
targets. For example, the FISA application process would be
streamlined. The amount of information required for an
application would be reduced.
Senator Feinstein. That was in my bill, too.
Mr. Bradbury. Yes, it was.
Senator Feinstein. I believe Senator Specter took it from
my bill.
Mr. Bradbury. Absolutely. It is a good idea, and good ideas
should be liberally--
Senator Feinstein. I just wanted to make that clear.
Chairman Specter. I had thought that was our bill, the
Feinstein-Specter bill.
[Laughter.]
Senator Feinstein. I am delighted. Yes, it is our bill.
Mr. Bradbury. In addition--and this may also be in your
legislation, Madam Senator--the emergency authorization period
would be extended from 3 days to 7 days. The ability to
authorize it would be liberalized. And then perhaps most
importantly, if the reforms are made to the definition of what
is covered, to take out the international communications that
are not really historically the primary focus of FISA, that, of
course, by itself would free up a lot of resources in terms of
the Office of Intelligence Policy and Review that makes the
applications to FISA.
So all of those combined would necessarily make it much
easier to get quick approvals for those domestic targets of
necessary intelligence surveillance.
General Hayden. That is why I tried to craft my opening
comments about those four criteria, and very frequently NSA is
required to get FISAs not because of who is targeted, but
because of one of those other three criteria. And what this
legislation does is move the legal focus back to who are you
targeting rather than these techniques or accidents of how you
actually carry it out.
Senator Feinstein. Well, let me raise one other point.
Senator Specter's new FISA bill also eliminates the 15-day
window on surveillance following a declaration of war. And this
could be interpreted to mean that after a declaration of war,
the President has unlimited wiretap authority until the end of
the war. How long under this new Specter version would a
President's authority last? Could it last for decades?
Mr. Bradbury. Well, Madam Senator, the President's
authority to protect the country comes in large measure from
his authority under Article II. Of course, with the Terrorist
Surveillance Program, that has been in place now since shortly
after 9/11.
It is our view, as we tried to explain in--
Senator Feinstein. If you do not mind, let me just
interrupt you.
Mr. Bradbury. Absolutely.
Senator Feinstein. Because it seems to me you are buying
into--the administration is buying into a concept, and that is
Senator Specter's bill. Therefore, you are tacitly confining
your Article II authority within the confines of the Specter
bill, as I understand it. So I am asking you the question. One
of the amendments made is to delete this 15-day period, which,
therefore, once deleted, also has an interpretation that it is
without end.
Mr. Bradbury. Well, there would be no express provision
that says in time of war that the limitations of FISA do not
apply. The current provision says if there were a declaration
of war, none of the requirements or limitations in FISA would
apply at all for 15 days. Now, there have only been five
declarations of war in the history of the country, and we have
not even come close to one since FISA was enacted in 1978.
It is our view of that provision today in the legislation
that, in effect, it is a determination by Congress back in
1978, which was not a time of war, that in the event of armed
conflict or declaration of war, the branches would come
together and that there would be some accommodation made going
forward during that wartime.
It is not our view that it was a declaration by Congress
that only 15 days of warrantless surveillance in wartime is all
you need. I don't think that is what it was intended to mean.
It was intended to give some leeway, all the rules are off, and
then during that period there would be some special
accommodation made. It was really, in effect, a decision by
Congress in the 1970s to punt the question of what would happen
during an actual armed conflict.
Senator Feinstein. Mr. Chairman, would you allow me one
other question?
Chairman Specter. Yes. Proceed, Senator Feinstein.
Senator Feinstein. Perhaps, Mr. Bradbury, you are the one
to ask this question of. Is it your contention that the FISA
Court is an Article III court?
Mr. Bradbury. The judges are Article III judges, and, yes,
they are serving in a special capacity for purposes of
approving these orders. But, yes, they are Article III.
Senator Feinstein. And to what do you attribute that? Where
is the justification for finding it an Article III court?
Mr. Bradbury. They are appointed for life with their
compensation fixed, it cannot be reduced. They are Article III
judges, and Congress by statute has given them a special
assignment at the appointment of the Chief Justice. But that
does not mean that they are not Article III judges. They act in
their capacities as Article III judges, as does a court that
approves, for example, a Title III warrant.
Senator Feinstein. Isn't there a magistrate serving as a
FISA Court judge?
Mr. Bradbury. I am not aware of that. There are 11 FISA
Court judges. I believe--don't hold me to this--that they are
all district judges appointed by the Chief Justice.
Senator Feinstein. Well, I am a little puzzled, Mr.
Chairman, on this one point, because there is nothing in the
FISA law that gives this court the ability to make programmatic
approvals as opposed to grant warrants, individual warrants.
And how when a court gives an advisory approval to a program
and the constitutionality of such I think is questionable.
Mr. Bradbury. Well, may I respond to that?
Senator Feinstein. Yes, please.
Mr. Bradbury. Interestingly enough, the FISA Court of
Review in the In Re Sealed Case decision addressed the question
of whether a FISA order under the current statute is a warrant
or not. And the Court actually concluded that while it has a
lot of characteristics of a warrant, the Court did not need to
conclude or decide that it was a warrant, because foreign
intelligence surveillance could be conducted before and after
FISA as long as it is reasonable under the Fourth Amendment,
and that the FISA procedures would ensure that any court order
approving surveillance would ensure that that surveillance was
reasonable under the Fourth Amendment.
So it is not necessarily the case that a FISA order, even
an individualized one, is a warrant for Fourth Amendment
purposes. And the Fourth Amendment does not require a warrant
in all circumstances. In special cases, there can be
surveillance done, searches conducted without warrants, as long
as they are reasonable, for example, in the area of foreign
intelligence investigations and surveillance.
Senator Feinstein. Are you making the argument that a FISA
Court order for content collection is not a warrant?
Mr. Bradbury. Well, the FISA Court of Review concluded that
it did not need to decide that it was a warrant for it to be
constitutional. So it does not have to be viewed as a warrant,
and I would say that you are right that today FISA does not
contain any procedure that would allow the FISA Court to give a
program-wide order of approval to surveillance. The new title
that would be created by the Chairman's bill would enable the
Court to do that and would give the Court jurisdiction.
But in terms of Article III and whether there is a case or
controversy, I do not see a difference between the program-wide
order and the individualized order. There would still be a case
or controversy. It would be constitutional. The Attorney
General as a result of that order could get an order from the
Court that would compel cooperation to do what needs to be done
to undertake the surveillance. And just as with a Title III
warrant today, where the Government goes in ex parte to a
district judge and gets approval for a Title III warrant, this
is a similar construct. And it is similar to the FISA process
today for FISA orders.
There is the hypothetical person on the other side of the
case--not hypothetical. But the people on the other side of the
case are those people who would be under surveillance. That is
the same in a Title III context or under FISA today. I really
think it would function like FISA today. It would just be a
program-wide order.
Senator Feinstein. Well, you have been more than generous
with your largesse, Mr. Chairman.
Chairman Specter. How much more time would you like,
Senator Feinstein?
Senator Feinstein. Well, you see, I think this is kind of
the crux of the matter, and--
Chairman Specter. Senator Feinstein, proceed.
Senator Feinstein. If you would just allow me for a minute,
essentially there are no holds in your bill on a President's
authority. Once there is this programmatic approval by the FISA
Court, then individuals in this country can be wiretapped for
content. And that wiretapping could go on forever. There is no
duration.
I would assume that others could be slipped into that
program warrant, perhaps even without review. And what worries
me is that once for content--meta data is something else, but
for content, once you go to a programmatic approval, it opens
the Pandora's box of all kinds of games that can be played with
that because there is no timely periodic review of everybody
whose content is being collected under that programmatic
review, no decisions made as to how long that data can be
maintained, when a decision can be made that the content
collection should be cut off.
Mr. Bradbury. Senator, that is not the case. Under the
Chairman's bill, all of those things would be addressed by the
Court in its review. So, for example, strict requirements would
have to be met before the Court would be able to entertain such
an application, it would have to be directed at foreign
terrorist threats. There would have to be a showing that you
could not use traditional FISA process. There would have to be
a showing that there is special need for agility and
flexibility and that you cannot identify all of the targets in
advance. Then there would have to be special minimization
procedures proposed and in place to protect any information
about U.S. persons that might be caught up in the program.
Then the Court would review it for reasonableness under the
Fourth Amendment. The Fourth Amendment is not an open-ended
blank check. The Fourth Amendment would not allow things to go
on permanently, would not allow things to be general and not
focused on the threat. All of those things would be taken into
account and reviewed carefully by the Court. It could only be
approved for 90 days, and then the Court would review it. You
would have to come back in, and in reviewing it and
reauthorizing it, the Court is charged under the legislation to
look at, well, what has the actual collection been? Has it been
focused, as the Attorney General said it would be? Have the
minimization procedures been followed? All of those things
would be subject to careful judicial review by the FISA Court.
Senator Feinstein. All right. Knowing the numbers, foreign
to foreign--
Chairman Specter. Senator Feinstein, you are up to 8
minutes over, which is another round.
Senator Feinstein. I appreciate that.
Chairman Specter. Why don't you ask your last question?
Senator Feinstein. The last one. Knowing the numbers of the
foreign to foreign, you are saying every one of them would be
reviewed every 90 days?
Mr. Bradbury. Well, in the Terrorist Surveillance Program
of the President, we are talking about international
communications in and out of the United States. And under the
Chairman's proposal for this new program-wide order, it would
be focused on surveillance where you are talking about
communications to or from persons in the United States. So the
foreign to foreign would not be the subject of such a program-
wide order, but communication surveillance where there is a
U.S.--or somebody in the United States is involved could be and
would be the subject of such a program, and the Court would be
free to ask, as the legislation makes clear, for any additional
information the Court desires to review that program and to
take a look at it very carefully and closely. So it would be up
to the Court in making a judgment as to the reasonableness of
the program, the targeted nature of it, et cetera.
Senator Feinstein. Thank you. I appreciate it very much.
Thank you, Mr. Chairman.
Mr. Bradbury. Thank you, Senator.
Chairman Specter. Thank you, Senator Feinstein.
General Alexander, coming back to the question which I
asked initially and you have expanded upon, would it be
impractical or even impossible to have individualized warrants
under the current surveillance program? You had responded in
part that it would limit you when you were going after a
foreign member, a foreign caller, someone who initiated the
call abroad, not knowing whether it was going to be to a
domestic location or not. Would you expand upon that?
General Alexander. Yes, sir, and I will take from the
testimony that we started out with in that who and where are
the key parts of this. Who is the target that we are going
after? Is it a foreign terrorist in a country outside the
United States? If the target is outside the country making a
call, then we should use every means possible--and I think
everybody generally agrees with that--to go after that
communication. The issue is if we conduct that in the United
States and it happens to stop in the United States, in the
United States we would need a warrant; outside the United
States we could do it under Executive Order. So we have a
problem.
The issue then becomes do I get a court order for every
foreign target that I have under the possibility that I could
have collected it in the United States. That is what it does to
us today. That is impractical. It would cause a tremendous
burden on--
Chairman Specter. Now, specifically, what is impractical?
When you--
General Alexander. The volume--
Chairman Specter. Wait a minute.
General Alexander. The volume of--
Chairman Specter. Wait a minute. Let me ask the question so
we have the framework. It is impossible or impractical to get
an individualized warrant when the caller is outside the United
States, not knowing whether the recipient will be inside the
United States?
General Alexander. Yes, sir. It would be impractical. I am
not saying it would be impossible, but it would be impractical
because we don't know what the foreign to U.S. number could
possibly be. Would the requirement be, hypothetically, if that
foreign number called all foreign numbers, you would say good
to go. But if they called U.S. number 1, FISA. If he calls U.S.
number 2, I have to get a new FISA. U.S. number 3, a new FISA.
U.S. number 4, a new FISA. And what I am ending up doing is
submitting for calls that have been happening, and what we
would do is saturate--
Chairman Specter. That is what you would have to do absent
the surveillance program?
General Alexander. That is correct.
Chairman Specter. But with the surveillance program, you do
not have to do that.
Now, you say impractical, but not impossible?
General Alexander. Well, you would not be effective.
In my opinion, sir, from an operational--
Chairman Specter. Why not effective?
General Alexander. Because you would be so far behind the
target, if you were in hot pursuit, with the numbers of
applications that you would have to make and the times to make
those, you could never catch up to the--
Chairman Specter. So your conclusion is that to have
individual warrants, it would not be practical or effective in
what you are seeking to accomplish?
General Alexander. That is correct.
Chairman Specter. General Alexander, General Hayden, I
think it would be useful if you supplemented your oral
testimony in writing amplifying so you have an opportunity to
present a fuller picture. We have had a pretty good dialog
here.
Senator Feinstein. If I might say particularly on--
Chairman Specter. Are you on your time, Senator Feinstein?
Let me proceed, Senator Feinstein, and we will come back to you
after Senator Leahy, if the next vote does not come sooner.
Mr. Bradbury, Senator Feinstein said that there are no
holds and no limitations on what the President can do under my
bill. But isn't it a fact that what the President can do under
my bill is what the President is doing now and that it is
measured by whatever his Article II powers are?
Mr. Bradbury. Well, that is certainly correct.
Chairman Specter. And isn't the determination as to whether
he has Article II powers to do what he is doing now a balancing
test so that on this state of the record, this Committee, not
knowing the details of the program, is not in the position to
say that it is an exercise within Article II or is it beyond
Article II? Is that true?
Mr. Bradbury. That is true, and I would add that the
limitation and the real balancing test comes in through the
Fourth Amendment, because whatever the President does is
subject to the Fourth Amendment and--
Chairman Specter. But we cannot determine that unless we
know where the program is on the balancing test.
Reasonableness, as you said earlier, depends on the threat and
depends upon the invasion of privacy.
Mr. Bradbury. That is correct.
Chairman Specter. And that requires a judicial
determination.
Mr. Bradbury. Well, that is one very effective way to do
it, and that is what your legislation would do. It would bring
the Court in to make that determination.
Chairman Specter. Is there any other way to obtain a
judicial determination other than the FISA Court maintaining
the secrecy that the President insists upon?
Mr. Bradbury. Well, I think that is a very good mechanism
for doing that. Obviously, there are 30 or so pieces of
litigation around the country that have challenged various
versions of what has been alleged in the media. We do not think
those disparate matters in litigation in various district
courts around the country is an effective or appropriate way
for any of these determinations to be made.
Chairman Specter. Let me move to a series of questions with
the minute I have left. Isn't it true as a practical matter de
facto that the Foreign Intelligence Surveillance Act is not now
the sole means of wiretapping in the United States where you
have one party in the United States and one party out of the
United States?
Mr. Bradbury. That is correct. The President's program is
outside of FISA.
Chairman Specter. So FISA is not the exclusive way. And
isn't it also true that no statute, including the one I have
proposed, can expand or contract the President's Article II
powers?
Mr. Bradbury. Well, I would say that statutes can
reasonably regulate exercises of the President's constitutional
authority. But where we see a real issue--and it is a very
significant constitutional issue, and that is what the FISA
Court of Review is talking about--is an effort to try to
eliminate it or snuff it out. And that is where you get a real
direct clash between the branches, and that is what we have
always endeavored to avoid throughout this discussion. And I
think your legislation recognizes that we all want to avoid
that situation.
Chairman Specter. With Senator Leahy's acquiescence, I am
going to pursue this just a bit further. When you talk about
reasonably regulate, you come to Justice Jackson's famous
concurrence in the steel seizure case. He said that when the
President exercises his constitutional power, plus a grant of
authority from the Congress under Article I, then his power is
at a maximum because he has two powers, Article II and Article
I.
Mr. Bradbury. That is correct.
Chairman Specter. When he exercises Article II power alone,
it is at the medium point, where he faces a situation where
Congress has denied him certain authority, as where FISA is in
existence, then he relies solely on his Article II power. But
isn't that Article II power, whatever it is, as determined by
the balancing test on the invasion of privacy versus the
national security interest involved?
Mr. Bradbury. That is right.
Chairman Specter. A final question. This provision in the
bill has been cited repeatedly as a negative comment: ``Nothing
in this Act shall be construed to limit the constitutional
authority of the President to collect intelligence with respect
to foreign powers and agents of foreign powers.''
Now, the best illustration of that is a wiretap of a
foreign embassy. Isn't it true that that line was in the FISA
Act of 1978?
Mr. Bradbury. It was. I believe, Mr. Chairman, it was
amended to take it out at a later point, and this legislation
would reinstate it in the bill. But I think the important point
is that the FISA Court of Review in its decision says
essentially just exactly that. And this is simply a recognition
or affirmation of what the FISA Court of Review has said.
In pointing to the embassy provision, you are exactly right
that that is an example where FISA today recognizes and allows
for the Executive Branch to take action without a court order
to undertake foreign intelligence surveillance. And that is an
authority that exists today and that is recognized in the FISA
statute.
Chairman Specter. So, in totality, Article II power is what
it is and it cannot be added to or subtracted by legislation
since the Constitution supersedes legislation.
Mr. Bradbury. The legislation does not change Article II
authority. It can add Congress' authority, as Justice Jackson
indicated in his concurrence, or it can attempt to leave the
Article II authority as it is, or it can attempt to take away
from it whatever authority Congress would otherwise provide,
and--
Chairman Specter. But Congress does not have any authority
by statute to change the Constitution.
Mr. Bradbury. That is correct.
Chairman Specter. Including Article II.
Mr. Bradbury. That is correct.
Chairman Specter. Senator Leahy, you have at least 10
minutes, or longer.
Senator Leahy. Thank you. Of course, we do not amend the
statute by--we do not amend the Constitution by statute, but as
Youngstown pointed out, there are many areas where the
President's Article II powers are circumscribed by statute. Is
that not correct?
Mr. Bradbury. Yes. In the exercise of those authorities,
but not where those authorities--
Senator Leahy. Thank you. I was glad to get a simple
declaratory judgment--simple declaratory answer from someone
from the Justice Department. It has been years. I compliment
you, Mr. Bradbury. I compliment you. You will probably get
fired for doing that, but I compliment you for doing it.
But the language that Senator Specter quoted was actually
never enacted as part of FISA. It was struck from the
conference in 1978, as I recall. But there are areas where we
can--the Congress under Article I can determine the actions of
the President under Article II, and then the President, of
course, has--in his oath of office, he says that he will
faithfully execute the laws of the United States. Now, of
course, if he does not like the laws, he can always veto them.
General Alexander, let's go back to the Terrorist
Surveillance Program because we may have been discussing two
things in your answers to the earlier questions. Let's say that
under this program you establish probable cause that a
particular individual you are monitoring is a terrorist and
that individual is within the boundaries of the United States.
At that point do you go to FISA for a warrant?
General Alexander. Not necessarily, sir. It may be. It may
be. It would definitely go to one or the other intel agencies
as soon as that is. Our objective would be NSA would not
proceed at that point. We would pass it to either the FBI--
Senator Leahy. If you are going to continue--you have got
somebody in the United States. You have established probable
cause, and this is putting aside for the moment whether the
original program is actually authorized in the law or not. But
let us assume you have got probable cause that somebody in
Middlesex, Vermont, is a terrorist. I know all the people in
Middlesex, Vermont. I do not think there are any.
General Alexander. It would not happen, sir.
Senator Leahy. But let's say you do. At that point do you
have to go to the FISA Court for a warrant if you are going to
continue monitoring that person, that individual?
General Alexander. Actually, the procedure--
Senator Leahy. Does somebody have to go to the FISA Court?
General Alexander. Somebody, potentially, but not
necessarily. And the question really gets to where are we in
the process of knowing that that is a terrorist. If we know for
sure that is a terrorist, it has gone to the FBI, the FBI would
take that probably to a FISA and start their own procedures
with the lead and investigative information that we gave them.
Generally, you do not have a clear-cut case like that, sir.
Senator Leahy. I understand. I was trying to make it, for
an easier answer, to make it clear-cut.
Let's go to Section 9(k) of the Chairman's bill. This would
exempt from criminal liability any FBI agent or intelligence
officer who executes a physical search for foreign intelligence
information if the search is authorized ``under the
Constitution.'' Apparently, that is a reference to the
President's claimed inherent authority as Commander-in-Chief.
Does this immunize anyone who conducts warrantless searches of
American homes and offices without court orders under the say-
so of the President?
General Alexander. Steve, do you want to answer that one?
Mr. Bradbury. Well, I think, Senator, it simply conforms
the law to what FISA is trying--
Senator Leahy. No, no. Now, let's go back. You were so good
before answering the question that I began with. Does this
immunize somebody who conducted a warrantless search of an
American home or office under the say-so of the President? I
mean, that should be simple.
Mr. Bradbury. Well, if intelligence officers have executed
surveillance programs that have been duly authorized by the
President, this would recognize that those intelligence
officers who exercise those authorities should not be subject
to a criminal process.
Senator Leahy. So it immunizes--
Mr. Bradbury. I would say, Senator, that that is the
approach that FISA takes today. The officers and agents of the
U.S.--
Senator Leahy. This is different. This is in Section 9(k),
saying if they are authorized by the President--the President.
Not FISA but the President. Does that immunize them?
Mr. Bradbury. Well, the legislation would recognize that
there may be instances where there are programs authorized by
the President. That is recognized in the legislation, and then
there are procedures in place for judicial review. There are
also procedures for the Attorney General in temporary
circumstances to authorize surveillance without a court order.
And so--
Senator Leahy. Well, has the President authorized
warrantless physical searches outside of FISA?
Mr. Bradbury. I think that the only thing the President has
talked about is the Terrorist Surveillance Program. That is the
program that is done today without a FISA order. And that has
been the subject of the hearings before this Committee, and I
think it is an appropriate subject for the legislation that is
being proposed.
Senator Leahy. Can you answer the question whether he has
authorized such warrantless searches?
Mr. Bradbury. I am not going to say he has.
Senator Leahy. I wanted to make sure you had a chance to
respond on that specifically.
You know, I worry that what we are doing is trying to
immunize a lot of activity. We had this great battle here
conducted in the pages of the press and all on the question of
torture. And then after wonderful signing ceremonies at the
White House and everything else, the President said, However,
there will be areas where we do not have to apply that law, and
thus attempted to immunize people.
I worry when we start going into this question of
immunization. I am not talking about the President's pardon
ability, and we have seen that in Watergate and others where
the President has pardoned people afterward, and Iran-contra
and so on. I am talking about blanket immunization.
Let me ask both General Alexander and General Hayden this.
As I understand FISA, it has always allowed the NSA to use a
kind of vacuum cleaner approach to radio communications in the
United States, sometimes referred to as the ``NSA exemption.''
So in the Chairman's bill, if you repeal Section 101(f)(2) of
FISA, would that extend the NSA exemption to all electronic
communications, both wire and radio?
General Hayden. Yes, I think the straightforward answer,
Senator, is yes. And just one additional sentence of
explanation is that it would allow NSA to target foreign
entities--and we in our discussions, I think, have crossed some
concepts here. In terms of targeting a foreigner for a foreign
intelligence purpose, the Chairman's bill would allow NSA to
use all the tools that it has. It would not make a distinction
between grabbing a signal out of the air or grabbing a signal
some other way.
Senator Leahy. I understand. So, for example, if you had--
this would allow you to seize and record all the calls between
the United States and India, just blanket.
General Hayden. No, it would not.
Senator Leahy. I am talking about under the--if you repeal
Section 101(f)(2).
General Hayden. No, no, not at all.
Senator Leahy. OK.
General Hayden. It would allow you to target a phone number
in Central Asia, and it would give you the same ability to
cover that target that you now have pulling that signal out of
the air or collecting that signal overseas, it would allow you
to use all the tools that we have at our disposal in order to
get what we have already agreed is coverage of a legitimate
foreign intelligence target.
Senator Leahy. Do we do this kind of vacuum cleaner
surveillance of Americans now?
General Hayden. You are talking about intercepting the
content? Senator, everything that is done is targeted and for a
foreign intelligence purpose. No.
Senator Leahy. On these calls--and I understand, without
going into the specifics of the program, you are taking a huge
number of calls and e-mails, not specifically on a person. Are
those then stored for retrieval and analysis by the NSA?
General Hayden. Senator, your premise is incorrect.
Senator Leahy. OK.
General Hayden. Under the President's program, when NSA
collects the content of a communication, it has already
established a probable cause predicate that one or both
communicants is associated with al Qaeda. So we do not vacuum
up the contents of communications under the President's program
and then use some sort of magic after the intercept to
determine which of those we want to listen to, deal with, or
report on.
Senator Leahy. What if something is picked up by mistake?
What happens to it?
General Hayden. There is a technical term called
``inadvertent collection.'' If NSA collects something
inadvertently, standard procedures for the President's program
or the standard procedures we have for all inadvertent
collection, it is destroyed.
Senator Leahy. So it is not available to others throughout
the Government.
General Hayden. Only with one exception. If the inadvertent
collection contains evidence of a crime, policy and statute
require us to report that. Otherwise, it is destroyed.
Senator Leahy. Now, in addition to narrowing the definition
of ``electronic surveillance,'' as I read Section 9, it would
expand the so-called embassy exception in Section 102 of FISA.
Am I correct on that, Mr. Bradbury?
Mr. Bradbury. Yes, Senator. I believe under this new
provision, that provision would allow the Attorney General to
approve for a period targeted foreign intelligence surveillance
that is directed solely at the communications of foreign
government operations or non-U.S. persons who are agents of a
foreign government. Solely those communications.
Senator Leahy. If this was passed, for example, if you had
a Congressional staffer call the German Embassy to plan a
Congressional trip to Berlin, that could be picked up.
General Hayden. Senator, across the board, when NSA
conducts surveillance against a legitimate foreign intelligence
target and that target is in communication with an American--
the American is not the target; the foreign entity is the
target--we have well-established procedures to protect the
privacy of the U.S. communicant.
Senator Leahy. Well, Section 9 of the Chairman's bill
expands the definition of ``agent of a foreign power.'' We
expanded that definition a few years ago, the so-called lone-
wolf amendment. It also changes the definition of ``Attorney
General'' from being restricted to the Attorney General or
Deputy Attorney General to any person or persons designated by
the Attorney General. Would that permit the Attorney General to
delegate to every FBI agent and intelligence officer in the
country the authority to authorize emergency wiretaps of phone
calls?
Mr. Bradbury. No, Senator, that is not the way the Attorney
General delegates his authority. So, for example--
Senator Leahy. But under this change of definition to now
include any person or persons designated by the Attorney
General--I am not saying whether he would do it, but would he
have that power?
Mr. Bradbury. He would never do that. He would--
Senator Leahy. Would he have the power?
Mr. Bradbury. Not under his current--
Senator Leahy. You buy a car that can go 125 miles an hour.
You are going to say, ``But, of course, I would never drive
over the speed limit.'' But you could go 125 miles an hour. If
this says he can delegate it to anybody, does he have the power
to delegate it to anyone?
Mr. Bradbury. He would delegate pursuant to his existing
regulations on delegations, which are limited. And so in this
case, for example, you would be talking about the Assistant
Attorney General for the National Security Division, in all
likelihood.
Senator Leahy. But we have in the law now it is restricted
to the Attorney General or the Deputy Attorney General, as we
note a reference to that in Ruth Marcus's column this morning
in the paper. But this would permit him to go way beyond that,
does it not? I mean, just on the face of it. Aside from what he
might or might not do, on the face of it does it allow him to
go way beyond that?
Mr. Bradbury. Well, Senator, let me say this: All
authorities of the Attorney General today under statute, unless
they are expressly limited against delegation, are subject to
delegation by the Attorney General pursuant to his existing
regulations in the Department of Justice, and this would simply
allow for that. But under those regulations, authorities of the
Attorney General are not widely delegated to all individual FBI
agents, for example. That is simply not done and it would not
be done.
Senator Leahy. I had such hopes for you earlier when you
actually answered a question yes or no. But I will submit the
rest of my questions, Mr. Chairman. This is highly technical.
Between the House and Senate, I remember we had more than a
dozen hearings when we considered reauthorization of the
PATRIOT Act. And this bill goes way beyond the PATRIOT Act. So
we will require more answers, and I appreciate the extra time.
Chairman Specter. Well, Senator Leahy, we are available for
more hearings. We have only had five. We will have as many as
we need.
General Hayden, thank you for your testimony and thank you
for your service.
General Hayden. Thank you.
Chairman Specter. General Alexander, thank you for your
testimony and for your service.
General Alexander. Thank you.
Chairman Specter. Mr. Bradbury, thank you for your
testimony and your service. It is good to have real
professionals come before this Committee and answer the
questions.
Mr. Bradbury. Thank you, Mr. Chairman, and thank you,
Senator Leahy.
Chairman Specter. We turn now to Panel 2: Mr. Cunningham,
Mr. Dempsey, Mr. Schmidt, and Ms. DeRosa.
Our first witness is Mr. Bryan Cunningham, principal in the
firm of Morgan & Cunningham; bachelor's degree with distinction
from the University of Iowa; law degree from the University of
Virginia Law School; worked for the CIA for some 6 years, first
as an intelligence analyst and later as executive assistant to
the CIA Director; Special Assistant U.S. Attorney in the
Department of Justice. His full resume will be made a part of
the record.
We appreciate your coming in, Mr. Cunningham, and we are
going to go back to 5-minute rounds now.
Senator Leahy. Mr. Chairman, just before you start, I have
just been advised by Ms. Katzman I forgot to put into the
record--I had a number of things in my last question, if I
might have permission to put that in the record.
Chairman Specter. Sure. Without objection, you may put them
at your leisure.
[The full resume of Bryan Cunningham appears as a
submission for the record.]
Chairman Specter. Mr. Cunningham, we are going back to 5-
minute rounds and 5-minute openings, and the floor is yours.
STATEMENT OF H. BRYAN CUNNINGHAM, PRINCIPAL, MORGAN &
CUNNINGHAM LLC, DENVER, COLORADO
Mr. Cunningham. Thank you, Mr. Chairman, Ranking Member
Leahy, and other members of the Committee, for having me here
today. It is a great honor and privilege to testify before you
on something that I think is of absolutely vital importance to
our Nation today, and that is, how to balance the need of this
President and, perhaps more importantly, future Presidents to
prevent catastrophic attack against our country with the
cherished civil liberties and separation of powers that are the
bedrock of our American democracy. As a national security and
information security and privacy lawyer for most of my career,
serving actually more time under Democratic Presidents than
Republican, and participating in the Markle Task Force on
National Security, a bipartisan group, I am confident that we
can balance these two interests; that we must balance them
correctly, or risk far more damage to our civil liberties in
the event of a catastrophic attack than we have imagined to
date; but only if, in my judgment, the Foreign Intelligence
Surveillance Act is reformed and is amended along the lines,
Mr. Chairman, of your bill, S. 2453.
In addition to responding to your questions, my testimony
today, my statement, which I would ask to be put in the record,
addresses essentially three--
Chairman Specter. Your full statement will be made a part
of the record.
Mr. Cunningham. Thank you, Mr. Chairman. Essentially three
issues.
First, it discusses what I believe to be the proper and
appropriate way to analyze the constitutional question here. I
understand why both the administration and many Members of
Congress and commentators on all sides have addressed this
principally as a question of the President's Commander-in-Chief
authority under Article II of the Constitution. I believe based
on much precedent cited in my testimony and also in a brief
that I co-authored with the Washington Legal Foundation in the
New York case, which I would also ask be put in the record
today, that the best way to look at this issue is under the
President's foreign affairs and foreign intelligence authority.
And I would submit that that is the way that most courts
historically have looked at it and balanced those interests, as
you correctly suggested earlier, Mr. Chairman, against the
interests of Congress.
I will not go into any detail about those arguments in my
opening statement for purposes of time, but I would be happy to
take any questions on that.
At the outset, I wanted to say just a brief word about
bipartisanship. I am honored to be on this panel with a former
Associate Attorney General for the Clinton administration. As I
said, I have served in both administrations, and I would also
commend to the Committee the work of David Kris, who I know has
testified before this Committee, who was a senior FISA expert
in the Clinton and the Bush administrations.
Now to the specific provisions, Mr. Chairman, of your
legislation. I support the programmatic approval that is called
for in that bill, along with a Democratic counterpart
recommended in an op-ed back in February exactly such a program
of programmatic approval. I think it is really the only way
that we can create a situation where FISA keeps pace with the
technological changes since 1978 and the changes in the
behavior of our enemies.
I strongly support also the concept of electronic tracking
as outlined in the legislation. I think that the ability for
the United States to use what I call ``machine triage''--that
is, sifting of large amounts of content by computers prior to
human beings actually looking at the data--is important both
for our national security and our civil liberties. And I am
happy to see that concept included in your bill.
I would just say a couple of brief words about Section 801.
There was a lot of discussion, appropriately, in the first
panel about that. The language that would make it clear that
the President retains his Article II--in my view, foreign
affairs primarily, but Article II constitutional authority to
conduct electronic surveillance for foreign intelligence
purposes when at least one party is outside the United States
or in other circumstances. There has been some discussion about
why that is important, and I watched with interest your
discussion with the Attorney General the other day, Mr.
Chairman, about this issue. I think this is absolutely
essential that this language be included in any FISA reform
legislation, and I think it is essential for four reasons.
First, I think it is important that the public have a clear
understanding and statement of what the law and the
Constitution is. I know some of my colleagues on the Markle
Task Force, whom I am proud to have served with and proud to be
here with today, would agree with the notion that this,
whatever our law is, should be made clear to the public. And I
think 801 does that. I think it is a statement of the current
law.
Second, I think it is important, I think it is necessary to
get any President, whether this President or a future
President, to agree to reform legislation like this.
And, third, I think it is important because it will help
our officers avoid the risk aversion that General Hayden
discussed earlier in the context of being criticized for
following the law, to have it be clear that the Congress and
the administration and the judiciary all agree on this state of
the law.
And, finally, I think no President of either party should
ever have to be forced in the future into the Hobson's choice
of deciding whether to fail to collect information that could
protect us against attack or be accused of violating the law.
I look forward to answering your questions. Thank you.
[The prepared statement of Mr. Cunningham appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Cunningham.
Our next witness is Mr. Jim Dempsey, Policy Director for
the Center for Democracy and Technology; bachelor's degree from
Yale; law degree from Harvard; clerked for Massachusetts
Supreme Court Justice Robert Braucher; served as assistant
counsel to the House Judiciary Committee; has a distinguished
record in the practice of law, which will be made a part of the
record.
Thank you for coming in, Mr. Dempsey, and the floor is
yours.
STATEMENT OF JAMES X. DEMPSEY, POLICY DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.
Mr. Dempsey. Mr. Chairman, thank you for the opportunity to
testify at this hearing today.
Mr. Chairman, we commend you for your tireless leadership
in seeking to ensure judicial review of the President's
warrantless surveillance program. From the outset, you have
been forthright in your criticism of the administration and
their disregard of the express requirements of the FISA
statute. And now, through intense negotiation, you have secured
the promise of the President to submit his current surveillance
program to court review.
With profound respect, Mr. Chairman, we must conclude that
the price you paid for that simple concession is far too high.
It pains me to say this, Mr. Chairman, but your bill as it
stands today is not a 21st century bill. To the contrary, it
would turn the clock back to an era of unchecked Presidential
power, warrantless domestic surveillance, and constitutional
uncertainty.
Your bill as it now stands, Mr. Chairman, has been so far
altered from its origins and has become so dangerous to
fundamental constitutional precepts that, as one civil
libertarian to another, Mr. Chairman, let me say that we would
rather see the President's unlawful program continue unchecked
than to see your bill enacted into law.
You said the President will not yield to Congressional
mandate. True. This President has a radical view of
Presidential power. The next President may not have that view.
But your bill would endorse the radical concept of the imperial
presidency. And once Congress gives up on the concept of checks
and balances and gives the President the blank check, it may be
decades before the pendulum can swing back to the center.
Let me just focus on two ways in which your legislation
would turn back the clock to an era of warrantless
surveillance.
Sections 5 and 6 of the Chairman's bill would authorize a
program of domestic surveillance far broader than President
Bush's program. The Attorney General has said, and General
Hayden confirmed today, that the President's program targets
only communications with particular suspected members or
affiliates of al Qaeda, only on the basis of probable cause,
only for short term, and only if one leg of a call is overseas.
Your bill, Mr. Chairman, would authorize seizing the
contents of purely domestic calls of American citizens without
probable cause, without specific suspicion, where the call has
nothing to do with al Qaeda or even with terrorism, and would
allow that surveillance to go on long term.
Section 9 of your bill, by redefining ``electronic
surveillance,'' would vastly expand the scope of warrantless
surveillance, and the changes that you make to Section 102 of
FISA would authorize warrantless surveillance of purely
domestic calls.
General Hayden offered excellent testimony this morning,
Mr. Chairman, and it provides a road map for how to address
some of the problems facing the intelligence agencies today.
But that road map does not lead to your bill.
On the question of who is the target, General Hayden
emphasized the importance of the emergency procedures of FISA
and about allowing the Attorney General to delegate his
authority to grant emergency orders. I agree with that.
As to where is the target, General Hayden said how
important it was--and you noted in your op-ed--when a foreign
person is calling a foreign person, that a FISA order should
not be required even if the vagaries of technology, the
advances in technology put that call into the United States and
at the disposal of the intelligence agencies. I don't think
that foreign to foreign, accessible in the United States, is
currently covered by FISA, and it shouldn't be.
In terms of technology neutrality, again, yes, the statute
should be technology neutral. But in which direction? Your bill
takes technology neutrality and uses it to expand the scope of
warrantless surveillance. I think it is worth looking at using
technology neutrality to expand the warrant requirement.
A lot of this boils down to one question: foreign to
domestic calls. And one key word lacking from your bill, which
we heard time and again from General Hayden and General
Alexander, is the word ``targeting.'' When the Government is
targeting a known or suspected terrorist reasonably believed to
be overseas, whether that call is intercepted in the United
States or overseas, a warrant should not be required. And I
think it is worth thinking about not turning off the tap when
that target happens to call a number in the United States. If
it turns out that he repeatedly calls the United States, then
maybe you do have to go to a warrant, regardless of geography.
But that is a much narrower solution to the problem of foreign
to domestic than exists in your bill, and I think we can have a
lot more in-depth discussion about how to respond to the global
changes in technology without having a one-way downward ratchet
so that just because technology is changed, privacy principles
have to be abandoned.
Thank you, Mr. Chairman. I look forward to your questions
and those of Senator Leahy.
[The prepared statement of Mr. Dempsey appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. Dempsey.
Our next witness is Mr. John Schmidt, partner of the firm
Mayer, Brown, Rowe & Maw; cum laude graduate from Harvard
College--magna cum laude from Harvard College, cum laude from
the law school, and an editor on the Harvard Law Review; was
Ambassador and Chief U.S. Negotiator on the Uruguay Round under
the General Agreement on Tariffs and Trade; Associate Attorney
General from 1994 to 1997; a visiting scholar at the
Northwestern University School of Law.
We appreciate your coming in today, Mr. Schmidt, to
testify, and we look forward to your testimony.
STATEMENT OF JOHN SCHMIDT, PARTNER, MAYER, BROWN, ROWE & MAW
LLP, CHICAGO, ILLINOIS
Mr. Schmidt. Thank you, Mr. Chairman and Senator Leahy. I
am happy to be here and give you my thoughts on what Congress
should now be doing to improve the Foreign Intelligence
Surveillance Act. I have submitted a full statement, and I will
summarize it as briefly as I can.
Chairman Specter. Your full statement will be made a part
of the record.
Mr. Schmidt. I think it is important to get away from any
talk or even thinking about whether the President or Congress
is winning or losing or whether somebody is capitulating or
compromising. None of that matters. What matters is whether we
end up with an institutional structure that will both protect
constitutional rights and achieve effective surveillance of al
Qaeda and other terrorist groups.
It seems to me that the bill that you have introduced and
that I understand the administration is now supporting would,
in fact, be a constructive step to achieve both of those
objectives. It would, as has already been discussed, allow the
President to submit to the Foreign Intelligence Surveillance
Court for a decision on its constitutionality a program of
surveillance that does not involve the Court in the
individualized approval of warrants specifying individual
targets of surveillance.
The NSA program that we know something about is a program
of that nature. The President cannot do that under current law.
The FISA Court has made very clear it is a court of limited
statutory jurisdiction. In fact, there was an effort some years
ago to submit a physical search to the FISA Court before the
statute allowed that, and the FISA Court said, ``We don't do
physical searches. We only approve electronic surveillance.''
The statute was later amended. But it is absolutely clear that
the Court would not, could not do that now.
It seems to me that letting that Court determine the
constitutionality of the NSA program or other programs that
come along in future circumstances is really in everybody's
interest. It is in the interest of the President to find out
if, in fact, the Court agrees that that program is
constitutional. He can make changes if he needs to. It is in
the interest of Congress to get off of Congress the burden
which some people want to put on you to make constitutional
judgments of that nature. It is not that you cannot do it as
individuals, but institutionally Congress is not in that
business, Congress is not capable of making individualized
judgments about a particular program's constitutionality.
Oversight should continue. But oversight is not a substitute
for a constitutional judgment by a court.
I think it is in the interest of the security professionals
at the NSA and elsewhere to allow a court decision. That is
something that we really have not talked much about, but, you
know, there is no reason to think the current program is the
last word on what we should be doing to use the electronic
surveillance capacities we have against al Qaeda. If you are at
the NSA today and you are thinking working on possible change
in that program, if you come up with a new idea to change it, a
new program, it has to be chilling, inhibiting to know that
those efforts are likely to be the result in hearings of this
nature, being able to get a court decision in advance on
whether a program is constitutional gives those NSA
professionals confidence that what they are doing is not going
to be subject to that kind of controversy. And, most of all, it
gives the American people the confidence of knowing that there
has been a court decision on the constitutionality of a
program. I think courts are the way we make constitutional
decisions in this country. It is the process that people have
confidence in.
The part of the bill that seems to be the most
controversial is the provision that says it recognizes that the
President retains Article II surveillance authority outside the
provisions of the statute. As has been noted, that is
consistent with the judicial authority today, court of appeals
decisions that recognize the President's authority and the 2002
Court of Review decision that says flatly Congress cannot
encroach upon that authority. So it is not as though Congress
is giving up anything which any court has ever said that it
has.
But, you know, even if Congress could limit the President
to a statutory surveillance process, I don't think Congress
should want to do that. The strongest statements on this issue
were made by Edward Levi, who was referred to earlier by
Senator Kennedy, who played an active role in the development
of the FISA statute, worked to pass it. Ed Levi always said
that statute cannot be exclusive. He was insistent that there
be an acknowledgment in the statute of the President's retained
Article II authority. He was asked the question that Senator
Leahy was pressing Mr. Bradbury on: What difference does it
make if the President has the authority anyway? And Levi's
response was it would create a dangerous confusion for Congress
to pass a statute which did not acknowledge that the President
retained his own constitutional Article II surveillance
authority outside the terms of that statute. And if there was
ever any doubt about whether Levi was right, it seems to me
that the events of 9/11 prove that.
If it were true that the President was, in fact, limited to
a statutory surveillance process, it would mean that if on the
morning of 9/11 General Hayden had called President Bush and
said, ``We want to go forward immediately with the interception
of calls at airports around this country where we think al
Qaeda has people on the ground prepared to carry out further
attacks,'' the President's only lawful response to that would
be to say, ``Well, we need to get the Attorney General, we need
to begin examining whether each of those intercepts complies
with the FISA statute, and maybe we will be able to get you
authority by this afternoon or tomorrow morning.''
That is not the way any American President would construe
his constitutional authority when faced with an attack on this
country. I do not think it is the way any Member of Congress
wants him to construe it. And I can see no negative and it
seems to me there is a positive in having the statute
acknowledge that there are circumstances--which the statute
does not try to define, but that the President retains Article
II authority even in the face of any statute that Congress
passes.
So I think it would be a good step. I think it would be an
effort to rise above the current confrontation and create a
mechanism that can avoid controversies like this in the future.
[The prepared statement of Mr. Schmidt appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Schmidt.
Our final witness on the panel is Ms. Mary DeRosa, Senior
Fellow at Johns Hopkins Center for Strategic and International
Studies; bachelor's degree from the University of Virginia; law
degree from George Washington University Law School; clerked
for Second Circuit Judge Cardamone; had been special counsel to
the Department of Defense; Special Assistant to the President
for the National Security Council.
We thank you for joining us today Ms. DeRosa, and the floor
is yours.
STATEMENT OF MARY B. DEROSA, SENIOR FELLOW, CENTER FOR
STRATEGIC AND INTERNATIONAL STUDIES, TECHNOLOGY AND PUBLIC
POLICY PROGRAM, WASHINGTON, D.C.
Ms. DeRosa. Thank you, Mr. Chairman, Senator Leahy. Thank
you for inviting me to testify today. I did want to just
correct my institution. It is not the Johns Hopkins Center for
Strategic and International Studies.
As you mentioned, I was a legal adviser at the National
Security Council and a lawyer at the Department of Defense, and
from that experience, both of those experiences, I developed an
understanding of the need to act quickly and flexibly in the
national security area and a strong appreciation for Executive
authority. I actually thought at one point that I was sort of
extreme on the subject of Executive authority, but I now
realize that that is not the case.
I come to a discussion of FISA with a respect for the need
in the Executive Branch to act nimbly, to adapt to changes in
technology and threats, and I believe the law must permit this
flexibility. But saying that national security operators need
flexibility is not the same as saying that they must be able to
take the easiest route in all cases.
Sometimes other priorities will require some different
routes, some extra steps, and will make the job perhaps a
little bit more difficult. That is not the inquiry, the correct
inquiry. The correct inquiry is: Do these extra steps make it
so that the operators cannot get what they need to get done
done?
When we are talking about something as sensitive and
intrusive as interception of private communications of people
in the United States, court oversight of Executive Branch
action, although it might not be the easiest way to go, is
absolutely essential.
Experts in the late 1970s who crafted FISA concluded that
the critical mechanism for ensuring public acceptance of
national security wiretaps was a process that ensured careful
court oversight of surveillance and making that process
exclusive for approving surveillance decisions. And I would
like to comment on some of the exchange with the last panel
about whether the President's Article II powers can be limited
in any way.
It is true absolutely that the President has Article II
powers and authority to conduct electronic surveillance in the
national security area, but that is the beginning of the
inquiry. That is not the end of the inquiry. Congress
absolutely may regulate and limit the exercise of those
authorities. I am sort of uncomfortable as a former White House
lawyer saying it, but I believe that that argument sells
Congress' own authorities short.
In the Youngstown analysis that has been discussed,
Category 3, where there is a conflict between the Congress'
exercise and the President's exercise, Justice Jackson said at
that point the President's powers--the ability to exercise his
powers is at its lowest ebb. It is not unaffected--the Article
II powers are not unaffected. That is Category 2. In Category
3, the President's ability to exercise his authority is at its
lowest ebb. So Congress can affect and in the case of FISA did
intend to affect the exercise of those powers.
Now, does that mean necessarily that those powers are
extinguished. In my view, no. There might be something left. It
depends on the extent of the Congress' powers. But it is
unquestionably something less, something limited. I think in
the circumstances of the Hobson's choice that Mr. Cunningham
mentioned and the 9/11 circumstance that Mr. Schmidt mentioned,
perhaps there would be some authority under those very, very
limited, exigent circumstances, limited period of time to do
something within the President's power. But it is not an
unlimited entire exercise of the Article II authorities.
The drafters of FISA made concessions to the need for
flexibility along the way, and the FISA Court is not a regular
Federal court. It operates in secret and ex parte. And the
requirement for obtaining a warrant is not like a criminal
probable cause requirement. It is a much less rigorous
standard, the probable cause that the target is an agent of a
foreign power. But it is a disciplined process, and it is
transparent in that the public understands what is happening
and understands the rules.
I see that my time is just about out, and I welcome your
questions.
[The prepared statement of Ms. DeRosa appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. DeRosa.
Mr. Dempsey, you testified and you have in your written
statement this sentence: ``With profound respect, we must
conclude that the price the Chairman paid for that simple
concession is far too high.'' That follows the sentence there
was the ``promise of the President to submit his current
program to court review.'' And you characterize it as a
``simple concession.''
Have you ever gotten a concession from a President?
Mr. Dempsey. It is not hard, Mr. Chairman, and--I mean, it
is not easy, excuse me.
[Laughter.]
Chairman Specter. Well, wait a minute. Is it hard under the
Freudian slip or is it easy? Have you followed what President
Bush has done by way of signing statements?
Mr. Dempsey. Mr. Chairman, this is a President who has an
extreme view of--
Chairman Specter. Have you followed--
Mr. Dempsey. Yes, I have.
Chairman Specter.--what the President has done on signing
statements?
Mr. Dempsey. Yes, Mr. Chairman.
Chairman Specter. Have you followed what he did on refusing
to give clearance to the Office of Professional Responsibility
to check on the surveillance program?
Mr. Dempsey. Yes.
Chairman Specter. Have you followed the activities
generally of the President's view of Executive authority?
Mr. Dempsey. Yes.
Chairman Specter. Well, I will not ask you how you can say
it is a simple concession, but let me tell you that to get the
President's--well, let me rephrase it. Have you ever seen in
the past a President agree to legislation that he was generally
opposed to through negotiations in advance of the introduction
of a bill? Do you know of any precedent for that?
Mr. Dempsey. I am sorry, Mr. Chairman. I did not understand
that question.
Chairman Specter. Well, have you ever seen the President
negotiate an agreement to sign a bill that was not originated
by the administration?
Mr. Dempsey. I cannot cite one, but I don't know that it
has not happened.
Chairman Specter. Well, I would just suggest to you that
given the President's attitude on the surveillance program and
his attitude on Executive power generally, it was not a simple
concession but really was quite a breakthrough. But I respect
your difference of opinion.
Mr. Dempsey. May I respond, Mr. Chairman? May I respond?
Chairman Specter. Sure.
Mr. Dempsey. Call it, then, a major concession. The price
is still too high because for this one promise to submit this
one program to the FISA Court, your bill would excuse this
President from submitting any future program and any future
President from submitting any other program to the Court.
Chairman Specter. Would excuse him from submitting any
program? You say ``excuse'' ?
Mr. Dempsey. Yes. It would give him--
Chairman Specter. Well, the President has no obligation to
submit this program or any program to the Court, as President
Bush interprets his Article II power.
Mr. Dempsey. And this is where I think that we have a
monumental clash, and you have put yourself into the middle of
that clash, Mr. Chairman, and you are to be complimented to the
highest degree. But there is--
Chairman Specter. Well, I did not put myself there. The
Senate did by making me Chairman of the Judiciary Committee.
But let me move on--
Mr. Dempsey. And you accepted, Mr. Chairman, if I--
Chairman Specter. Just a minute, Mr. Dempsey. I have heard
you on that. I want to ask Ms. DeRosa a question based on your
testimony. Ms. DeRosa, do you agree with what Mr. Dempsey has
had to say, that he would prefer to see the President's
unlawful conduct continue rather than have a structured review
by the FISA Court?
Ms. DeRosa. Well, I am not sure that I would characterize
it exactly the way you have, but I do--
Chairman Specter. No, I did not characterize it that way.
Mr. Dempsey said that he would prefer to see the President's
unlawful conduct continue.
Ms. DeRosa. I think given the legislation as written, I
would prefer no legislation to the legislation that is
introduced because I believe that it--although I think judicial
review of this program is a high priority, it is not as high as
exclusivity and some of the other issues that are raised by--
Chairman Specter. Is there exclusivity for FISA today?
Ms. DeRosa. Well, I believe that there is. I believe that
it is clear from the language of the statute that that is what
was intended. And as a practical matter, is the President
complying with the language of the statute? No. But that is
what the statute clearly states and would for the future as
well.
Chairman Specter. My red light went on in the middle of
your answer, so I will yield to Senator Leahy.
Senator Leahy. Thank you.
Mr. Schmidt, good to see you here. I listened to your
hypothetical about what the President might do if he was asked
to track some of these people on September 10th or 11th. Let's
go from the hypothetical to the reality. The reality is that
the Bush administration had all the information necessary to
stop the attack on September 11th and failed to act upon it. In
fact, if you want to go to what happened on September 10th,
they were proposing to cut very substantially the
counterterrorism funds for investigations in this country. The
thing is we can change the laws all the way we want. Sometimes
it requires a little competence in using what they have.
Now, Mr. Dempsey, having watched the President's
unwillingness to obey the law and follow the law, you are not
suggesting that Congress then should simply give up and ignore
our own Article I powers that could require the President to
follow the law?
Mr. Dempsey. No, Senator, and I think there is a bill
before the Committee, the Specter-Feinstein bill, that would
insist upon Congress' powers under the Constitution and would
require the President or be more likely to require the
President--he still may disregard it. I think that this is an
absolutely momentous debate that we are in, and it may take
years for this conflict between the President's vision of
Executive power and what I believe to be the constitutionally
correct vision of Presidential power, endorsed most recently by
the Supreme Court in the Hamdan case.
Senator Leahy. I am going to be getting to that. The
Chairman asked Ms. DeRosa whether there is exclusivity today.
Of course, the answer is yes. And you and I agree on one thing.
The President's program is unlawful.
Now, if we repeal the exclusivity provision, what effect
would that have?
Mr. Dempsey. Then that would make FISA optional and would
cast doubt, constitutional doubt, on surveillance activities.
Here we are in the middle of a war against terrorism. We have a
FISA statute that has been approved by every court that has
reviewed it. Evidence from FISA surveillances has been
introduced in hundreds of criminal cases and never been
rejected. And here we are proposing to cast that aside and
allow the President to carry out wiretaps outside of that. What
if they find a real terrorist? What if the evidence is rejected
in court?
It is a very risky approach to cast aside what in my view
the Supreme Court has held is appropriate, that is, Congress
has war powers, the President has war powers. Congress, in its
exercise of its war powers under the necessary and proper
clause, under its authority to regulate the armed forces, can
adopt legislation that limits the President's inherent power.
Senator Leahy. In fact, many of the arguments made by the
administration about what the powers are showing here is what
happened in World War II and on and on, all of that was before
FISA was enacted. Then came Justice Jackson's decision in
Youngstown Steel. That would certainly circumscribe what the
President could do.
Do you agree with Attorney General Gonzales that Section 8
of the bill is meaningless and does not change the status quo?
Mr. Dempsey. Well, if it is meaningless, then let's not
pass it.
Senator Leahy. OK.
Mr. Dempsey. Other than the fact that the Chairman feels
that that is what it will take to get the President, that was
the quid pro quo for the President submitting this one
program--
Senator Leahy. Of course, I have stated before, you know--
and I was not in the negotiations, but basically I worry the
President said here, ``I will stop breaking the law if you will
pass a law saying that I am pardoned from breaking the law and
I do not have to follow the law anymore.''
The Justice Department White Paper on the so-called--that
is sort of ``Alice in Wonderland.'' The Justice Department
White People on the so-called Terrorist Surveillance Program
assumes that the NSA's activities constitute electronic
surveillance as defined by FISA. A reasonable assumption given
the current definition of ``electronic surveillance,'' which
covers any wire communication to or from a person in the U.S.
if the acquisition occurs in the U.S.
The Chairman's bill narrows the definition, in particular,
repeals the language I just referred to. As you read the new
definition, would the NSA's activities, or at least the
activities the President has acknowledged so far, still
constitute electronic surveillance? Or would FISA no longer
require the Government to get a warrant for those activities?
Mr. Dempsey. Well, actually, the President's program,
because it is foreign to foreign and they are targeting
somebody overseas, I guess it would not require a warrant for
the President's program.
Senator Leahy. OK. And you will have a chance--
Mr. Dempsey. Although let me say that General Hayden
testified that they have probable cause and specificity for
every single one of the surveillances under the President's
program, which would fit the FISA definition currently. Also,
as I said, General Alexander and Senator Feinstein had sort of
an ``aha'' moment there when General Alexander was explaining
that the NSA, our Government, has benefited from a windfall as
a result of the changes in technology, such that a large
percentage of foreign-to-foreign communications now pass
through the United States. So what the NSA used to have to try
to acquire overseas, where FISA does not apply, is now
available to them in the United States. And everybody agrees,
including from the civil liberties perspective, that foreign to
foreign should be exempt from FISA regardless of geography,
regardless of where the interception occurs, and regardless of
the technology.
General Alexander said, But then once we start in the
United States targeting an individual overseas, most of whose
conversations are foreign to foreign and, therefore, exempt,
and we find a foreign-to-domestic conversation, under current
law, if they are in the United States, they have to suspend,
and they believe they have to go get a warrant.
Now, that is a problem worth thinking about; that is, where
you are targeting an individual overseas, most of his
conversations are foreign to foreign. You can get him in the
United States even though he is overseas. His communications
get routed through this country, an accident of the evolution
of technology that was not apparent in 1978.
Now, I think it is worth thinking about, if we are talking
about that problem, a much more narrow definition. The
Chairman's bill would say that anything that is foreign to
foreign, including when you are not targeting a foreigner, or
anything that is foreign to domestic, including when you are
not targeting a foreigner, would be exempt from the warrant
requirements--which, by the way, also makes it exempt from the
statutory minimization requirements and casts you only back
upon whatever the President decides to adopt on his own.
So I think that there is something there worth thinking
about, but it is far narrower, Mr. Chairman, than what is in
your bill.
Senator Leahy. I will submit my other questions for the
record.
Chairman Specter. Thank you very much, Senator Leahy.
Thank you, Mr. Cunningham, Mr. Dempsey, Mr. Schmidt, and
Ms. DeRosa. We very much appreciate your testimony.
[Whereupon, at 12:08 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follows.]
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