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94–477 PDF 2015

S. HRG. 113–646 

HEARING ON THE REPORT OF THE PRESIDENT’S 

REVIEW GROUP ON INTELLIGENCE AND COMMUNICATIONS TECHNOLOGIES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

TUESDAY, JANUARY 14, 2014 

Serial No. J–113–46 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont ........................ 1 

prepared statement .......................................................................................... 40 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 42 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 7 

WITNESSES 

Witness List ............................................................................................................. 39 

The Hon. Cass R. Sunstein, The Hon. Richard A. Clarke, Michael J. Morell, 

Geoffrey R. Stone, and Peter Swire, the President’s Review Group on Intelligence and Communications Technologies ........................................................ 3 

prepared statement .......................................................................................... 76 

QUESTIONS 

Questions submitted by Senator Chuck Grassley for the President’s Review 

Group members .................................................................................................... 46 

ANSWERS 

Responses of the President’s Review Group members to questions submitted 

by Senator Chuck Grassley ................................................................................. 49 

SUBMISSIONS FOR THE RECORD 

Administrative Office of the United States Courts, Washington, DC, John 

D. Bates, Director, January 13, 2014, letter ...................................................... 57 

Amnesty International, New York, New York, Steven W. Hawkins, Executive 

Director, January 9, 2014, letter ........................................................................ 60 

‘‘Connecting the Dots: Analysis of the Effectiveness of Bulk Phone Records 

Collection,’’ Marshall Erwin, Research Fellow, Hoover Institution, January 

13, 2014, paper ..................................................................................................... 62 

‘‘The Air of Unreality in NSA Reform,’’ Michael B. Mukasey, The Wall Street 

Journal, December 23, 2013, article ................................................................... 73 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list: ............................................................................. 76 

Report of the President’s Review Group on Intelligence and Communication 

Technologies: http://www.whitehouse.gov/sites/default/files/docs/2013-12- 

12lrglfinallreport.pdf .................................................................................... 76 

New America Foundation: ‘‘Do NSA’s Bulk Surveillance Programs Stop Terrorists?’’ by Peter Bergen, David Sterman, Emily Schneider, and Bailey 

Cahall: http://www.newamerica.net/sites/newamerica.net/files/policydocs/ 

BergenlNAFlNSA%20Surveillancel1l0l0.pdf ......................................... 76 

Center for Security Policy, Occasional Paper Series: ‘‘A Critique of the Recommendations by the President’s Review Group on Intelligence and Communication Technologies’’: http://www.centerforsecuritypolicy.org/wp-content/uploads/2014/01/NSAlreport.pdf ............................................................... 76 
Page

IV 

‘‘Comments on the Judiciary on Proposals Regarding the Foreign Intelligence 

Surveillance Act’’ by John D. Bates, Director of the Administrative Office 

of the United States Courts: http://www.lawfareblog.com/wp-content/ 

uploads/2014/01-10-2014-Enclosure-re-FISA.pdf ............................................... 76 
(1) 

HEARING ON THE REPORT OF THE PRESIDENT’S REVIEW GROUP ON INTELLIGENCE 

AND COMMUNICATIONS TECHNOLOGIES 

TUESDAY, JANUARY 14, 2014 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 

Klobuchar, Franken, Coons, Blumenthal, Grassley, Sessions, 

Graham, Lee, and Cruz. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. We have a roll call vote expected soon, but I 

wanted to get this started, and then when the vote occurs at some 

point, we can recess for a few minutes while we go and vote. 

But what is important about this hearing, we are going to hear 

from the President’s Review Group on Intelligence and Communications Technologies. I was talking briefly with them in the back, 

and I know this is the first time they have appeared together publicly since their ground-breaking report was released last month, 

and I thank them, as I know the President has and others have, 

for taking the time, a lot of time, and effort to prepare this report. 

And I know it will be reflective of what the President is going to 

say later this week. 

The Review Group’s report addresses some of the weightiest 

issues that are going to confront us in the coming years. We know 

what the technology is today. None of us can predict what it is 

going to be five to 10 years from now. And we also know that more 

and more data will be created by all of us as each day passes. And 

the questions are obvious: When should our government be allowed 

to collect and use that data? To what extent does the massive collection of data improve our national security? And what will the 

answers to these questions mean for privacy and free expression in 

the 21st century? 

All three branches of government are grappling with whether to 

let the NSA’s dragnet collection of Americans’ domestic phone 

records continue, and we are finally doing so with full public participation in that debate. 

I think Americans across the political spectrum want us to have 

this debate and want to have a clearer understanding of what is 

going on, so we are trying to get as much as we can into a public 
2 

hearing. All of us on this Committee have had access, as have the 

five witnesses, to highly classified matters, but we are trying to go 

into as much as we can in open session. 

The most critical factor in deciding whether to conduct any particular intelligence activity is an assessment of its value. This is 

particularly important in evaluating the phone records program 

conducted under Section 215 of the USA PATRIOT Act. As I have 

said repeatedly, I have concluded that this phone records program 

is not uniquely valuable enough to justify the massive intrusion on 

Americans’ privacy. 

The Review Group likewise concluded that the program has not 

been essential, saying, and I will quote the Review Group: ‘‘The information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner 

using conventional section 215 orders.’’ And a few pages later, they 

said: ‘‘Section 215 has generated relevant information in only a 

small number of cases, and there has been no instance in which 

NSA could say with confidence that the outcome would have been 

different without the section 215 telephony metadata program.’’ 

The report explains that nothing in Section 215, as interpreted 

by the FISA Court, would preclude the mass collection of Americans’ personal information beyond phone records. 

The privacy implications of this sort of massive surveillance in 

the digital age cannot be overstated, and the Review Group’s report 

provides some very valuable insights. The report appropriately 

questions whether we can continue to draw a rational line between 

metadata and content, and I think that is a critically important 

question given that many of our surveillance laws depend upon the 

distinction between the two. 

These insights are also important as we take up reforms to the 

National Security Letter (NSL) statutes. We do not talk as much 

about the National Security Letters, but using them, the FBI can 

obtain detailed information about individuals’ communications 

records, financial transactions, and credit reports without judicial 

approval. But the thing that is troubling to many is that recipients 

of NSLs are subject to permanent gag orders. Senator Durbin and 

I have been fighting to impose additional safeguards on this controversial authority for years—to limit their use, to ensure that 

NSL gag orders comply with the First Amendment, and to provide 

recipients of NSLs with a meaningful opportunity for judicial review—something that most Americans would assume already exists. And the Review Group report makes a series of important recommendations to change the way National Security Letters operate. We have not seen as much about these recommendations in 

the press. They have not generated as much attention, but they 

should. And I think that we have to look at them. 

The report also recommends creating an institutional Public Interest Advocate at the FISA Court. I strongly support that proposal. I am concerned that merely allowing for an amicus to participate at the FISA Court from time to time will neither improve 

the substantive outcome of the proceedings, nor rebuild public confidence in the process. And the stakes are high. 
3 

When you think about it, we are really having a debate about 

what are Americans’ fundamental relationship with their own government. The government exists for Americans, not the other way 

around, and we must debate whether the government should have 

the power to create massive data bases of information about its 

citizens. This is a feeling I would have no matter who is the head 

of our government. 

I believe strongly that we must impose stronger limits on government surveillance powers, and I am confident that most 

Vermonters agree with me. I believe most Americans agree with 

me. Having said that, we want to do it right. 

Now, on our panel today we will have Richard Clarke, who is the 

CEO of Good Harbor Security Risk Management. He is Chairman 

of the Board of Governors of the Middle East Institute. During his 

30 years of public service, he was a senior White House National 

Security Adviser to Presidents George H.W. Bush, where I first 

met him, Bill Clinton, and George W. Bush. 

Then we will have Michael Morell, who recently retired as the 

Deputy Director of the Central Intelligence Agency after more than 

30 years of service, and during that time he served as Acting Director. He earned his bachelor’s degree from the University of Akron 

and a master’s degree from Georgetown. 

And Geoffrey Stone currently serves as a professor at the University of Chicago Law School. He previously clerked for Supreme 

Court Justice William Brennan. And Professor Stone also served as 

dean of the University of Chicago Law School and a provost of the 

university. 

Cass Sunstein is currently a professor at Harvard Law School, 

previously served as Administrator of the Office of Information and 

Regulatory Affairs. He also served as an attorney adviser at the Office of Legal Counsel, Department of Justice, and was a law clerk 

to Supreme Court Justice Thurgood Marshall. 

And last, Professor Peter Swire is currently a professor at the 

Georgia Institute of Technology. He previously taught at Ohio 

State University’s Moritz College of Law. In 2012, he was named 

to co-chair the Do Not Track standards process of the World Wide 

Web Consortium. He served as the Clinton administration’s Chief 

Counsel for Privacy from 1999 to 2001. 

Now, gentlemen, did you have a particular way you wished to 

proceed? 

Mr. SUNSTEIN. After consultation with your staff, we have a very 

brief opening statement, if that is agreeable to you, Mr. Chairman. 

Chairman Leahy. Go ahead. 

STATEMENT OF THE HONORABLE CASS R. SUNSTEIN, THE 

HONORABLE RICHARD A. CLARKE, MICHAEL J. MORELL, 

GEOFFREY R. STONE, AND PETER SWIRE, THE PRESIDENT’S 

REVIEW GROUP ON INTELLIGENCE AND COMMUNICATIONS 

TECHNOLOGIES 

Mr. SUNSTEIN. Well, notwithstanding our diversity, which you 

just signaled, we began this process with great admiration and 

gratitude for the intelligence community, and we would like to 

start by honoring their extraordinary work in keeping the Nation 

safe. 
4 

The risks associated with terrorism and associated threats are 

real, and one of our main goals has been to suggest reforms that 

are compatible with combating those risks. 

After extensive discussions and consultations during the last 

months, the gratitude and admiration that we had for the intelligence community has only increased as a result of interacting 

with them. We found the highest levels of professionalism. We 

found no evidence of political or religious targeting or targeting 

people because of political dissent. Their focus has genuinely been 

on national security. 

We are also grateful to them for their help and cooperation on 

a very tight time schedule, and they provided us with great access 

to information, making our report possible. 

We are also grateful to many organizations and individuals— 

over two dozen, in fact—who actually met with us were concerned 

with technology and innovation, with privacy, with civil liberties, 

with freedom of the press, with the rights of journalists, with our 

relations with other nations, friendly nations and some that are not 

particularly friendly, but ensuring that our relations are as cooperative as possible. Countless organizations and individuals have devoted energy and time to informing our work, and we are grateful 

to them. 

Much of our focus has been on maintaining the ability of the intelligence community to do what it needs to do, and we emphasize—if there is one thing to emphasize, it is this: that not one of 

the 46 recommendations in our report would, in our view, compromise or jeopardize that ability in any way. 

On the contrary, many of the recommendations would strengthen 

that ability explicitly by increasing safeguards against insider 

threats and by eliminating certain gaps in the law that make it 

hard to track people under circumstances in which we have reason 

to believe they do not wish to do us well. 

In terms of the reforms we favor, just three very general points. 

The first is the immense importance of maintaining a free and 

open Internet, promoting both democratic and economic values. 

Across partisan lines there is a commitment to Internet freedom, 

and what is done in this domain, we believe, should be compatible 

with that commitment. 

The second is the importance of risk management, signaled, I 

think, Mr. Chairman, by your opening remarks—that is a central 

unifying theme—considering multiple risks, first and foremost, the 

risk to national security, but including also the risk to public trust, 

risk to privacy, risk to economic values, and risk to democratic selfgovernance. So a major task going forward, what our report tries 

to thread a needle on, is try to ensure a full set of risks are taken 

into account and that we are not optimizing only along one dimension. 

The third point is the importance of accountability, which is a 

unifying theme for our 46 recommendations—accountability to senior-level policy officials; accountability to the legal system, to Congress, and this Committee through increased transparency and disclosure; and above all to the American people through transparency 

and disclosure. And I should emphasize that one form of account-
5 

ability includes steps that would help increase public trust not just 

within the United States but throughout the world. 

This is a diverse group, as noted. We reached all of our recommendations—and this is a bit of an upset—by agreement. There 

are no dissents. There was no horse trading, and there was no compromising. There are 46—— 

Chairman LEAHY. You would never make it in the Senate. 

[Laughter.] 

Mr. SUNSTEIN. There are 46 recommendations. If my arithmetic 

is right, we have 230 votes. That is, all five of us are behind all 

46 recommendations. 

No team bats a thousand or even comes close, and our transmittal letter makes clear to the intelligence community, to this 

Committee, to the American people that we offer our recommendations with a great deal of humility and as a mere part of a process, 

prominently including the deliberations and judgments of this 

Committee. 

We look forward to your questions. 

[The prepared statement of the President’s Review Group appears as a submission for the record.] 

Chairman LEAHY. Well, thank you very much, and I noticed that 

in the comment I made, I think a couple things are extraordinary 

here: one, that you did reach such consensus, and I wish we could 

reach the same kind of consensus in the Senate—on many things 

we do, but not enough. And, second, your comments about the professionalism of our intelligence community, the men and women in 

our various intelligence communities, I totally agree with you. As 

Mr. Morell knows, without going into the subject of some of our 

closed-door briefings, he has heard both Republicans and Democrats praise the work on some of the things he has had to bring 

before us, some very critical matters. And I have spent enough 

time with station chiefs around the world in different places and 

realize how important the work that they all do is. 

Now, when the bulk phone records program was made public last 

year, there were some who immediately began arguing that the 

program was critical to national security. They cited 54 terrorist 

plots being thwarted. Now, you have had reason to review those 54 

examples, as I have. As I read the report, it reaches the same conclusion that I and others here did: that the Section 215 program 

contributed to only a few of those cases and was not essential to 

preventing any terrorist attacks. 

I think it is also important to look at another thing we keep 

hearing—that somehow if this program had been in place before 9/ 

11, it could have prevented that. 

Now, Mr. Clarke, you were a senior counterterrorism official at 

the time of those attacks. Would the bulk phone records program 

have prevented 9/11? 

Mr. CLARKE. Senator, I think it is impossible to go back and reconstruct history. I think while ‘‘what if’’ history is interesting academically, it is very difficult to say with accuracy if one fact had 

been changed, that the outcome would have been significantly different. 

I think we can say this: that if the information that the federal 

agencies had at the time had been shared among the agencies, then 
6 

one of them, the FBI, could have gone to the FISA Court and could 

have, in a very timely manner, gotten a warrant to monitor the appropriate telephones. They did not because they were unaware of 

the information that existed elsewhere in the government at the 

time. But there was a period of over two years where that information was available, so it would have been possible, in a very timely 

manner, to get a warrant from the FISA Court. 

Chairman LEAHY. Wasn’t that one of the things that Senator 

Graham and his review committee found, that was the sharing? 

Mr. CLARKE. That is exactly right. The Joint Committee, the two 

Intelligence Committees of the House and Senate, found that the 

information was in the government at the time; it just was not 

shared. 

Chairman LEAHY. Now, I raised the issue of National Security 

Letters, or NSLs, and as you know, and for those who are not familiar, they permit the government to obtain certain communications and financial and credit report records without a court order. 

Also, as I raised, the FBI can impose a virtually permanent gag 

order on NSL recipients. A number of us have been trying to reform that. Your recommendations on NSLs have not had as much 

attention as other topics covered by the report, but I think they are 

just as important. 

So, Professor Swire, how did the Review Group arrive at its conclusions regarding NSLs? 

Mr. SWIRE. Thank you, Mr. Chairman. Well, we arrived at it— 

the group amongst us includes three law professors, so on legal 

matters we were particularly involved. We went to the FBI, and we 

interviewed FBI counsel in detail. We also amongst us had worked 

quite a bit on issues related to NSLs previously. 

Based on that, one of the things we focused on was the so-called 

gag orders or nondisclosure orders. In the criminal world, when 

there is an organized crime investigation, there are often nondisclosure orders on the order of 45 or 60 days. We found out that they 

are either permanent or come up for review for the first time in 

50 years under current law for NSLs, and that is very, very different from the way that grand jury subpoenas or investigations on 

the criminal side happen. And so that lack of disclosure and the 

long, long period of secrecy is certainly one thing we were concerned about. 

Chairman LEAHY. Well, doesn’t that create a real problem in 

some cases for the person receiving the NSL, the gag order? 

Mr. SWIRE. Well, so it poses problems for the email providers, 

phone companies who receive the NSLs, where they are not in a 

position to describe what activities they are taking. That can lead 

to situations where, among other things, the actual facts might be 

quite reasonable if understood more broadly. Many of the providers 

have expressed concern that they, under this gag order, cannot reassure their customers about the good practices that exist, and that 

has been a concern for the industry, certainly. 

Chairman LEAHY. Well, before I yield to Senator Grassley, Professor Sunstein, let me ask you. Some would say the NSLs are like 

a grand jury subpoena, and you can have the gag order, there is 

not judicial review and so on. Do you agree with that? 
7 

Mr. SUNSTEIN. There is an overlap, and the FBI has been driving 

that analogy. There is also another analogy, which is Section 215 

itself, where we recommend a certain process that is more consistent with the normal one for getting access to people’s records. 

We think that if 215 has the structure that it should, then the National Security Letter should follow the same structure, that the 

separation between them is extremely hard to justify. 

There is a certain analogy to the administrative subpoena. There 

is a question of breadth and scope with respect to National Security Letters, and we think that given the emergency exception that, 

of course, there would be, that to treat the National Security Letter 

like a 215 record seeking would not compromise any national security goal. 

Chairman LEAHY. Thank you, and I thank Senator Grassley for 

letting me ask just one more question. 

I will say this to Mr. Morell. We have heard some government 

officials talk about the Section 215 program; they say we should 

not—Americans should not—be concerned about it because the 

phone records the NSA obtains are just metadata and not particularly sensitive. The Review Group said there were some risks posed 

by the government obtaining massive amounts of metadata. Could 

you just elaborate on that a little bit? 

Mr. MORELL. Well, I will say one of the things that I learned in 

this process, that I came to realize in this process, Mr. Chairman, 

is that there is quite a bit of content in metadata. When you have 

the records of the phone calls that a particular individual made, 

you can learn an awful lot about that person, and that is one of 

the things that struck me. So there is not, in my mind, a sharp distinction between metadata and content. It is more of a continuum. 

Chairman LEAHY. In fact, in the New York Times op-ed, the five 

of you wrote, ‘‘The government should end its domestic program for 

storing bulk telephone metadata. The current program creates potential risks to public trust, personal privacy, and civil liberty.’’ 

And, of course, the concern I have had and some others have had, 

no matter who is President or who is the head of these agencies, 

we do not want the temptation in there to misuse it. 

Senator Grassley, thank you for coming over, and I would note 

that Senators have been joining us. I think we were all told there 

was going to be a vote at 2:30, and apparently that has not happened. If we keep looking over your head, we are looking at those 

little white dots up on the clock to see when the next one might 

be. 

Senator Grassley, go ahead. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. 

SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. The Chairman just explained what I wanted 

to explain, that you folks may not think this is a very important 

hearing, but it is a very important hearing, but you may not conclude that since other Members are not here. But we were all told 

that there was going to be a vote at 2:30. 

Before I ask questions, I have an opportunity to give an opening 

statement. I thank all of you for being here and for your work on 

the Committee. 
8 

This is the latest in a series of hearings on government surveillance authorities that our Committee has held. The NSA continues 

to be of great concern to my constituents and many across our 

country. 

The most important responsibility of government is to protect our 

national security, while at the same time preserving our civil liberties. This is a responsibility that is quite hard to meet. Rapid 

changes in technology are making our enemies more lethal, our 

world more interconnected, and our privacy more subject to possible intrusion. 

Under these circumstances, it is useful to hear a variety of perspectives, including from those outside government, and I thank 

the members of the Review Group for your service. 

Some of the conclusions in the Review Group’s report may help 

clarify the issues before us as we consider possible reforms. 

First, according to the report, ‘‘Although recent disclosures and 

commentary have created the impression in some quarters that 

NSA surveillance is indiscriminate and pervasive across the globe, 

that is not the case.’’ Then the report concludes, I quote again, ‘‘We 

have not uncovered any official efforts to suppress dissent or any 

intent to intrude into people’s private lives without legal justification.’’ 

None of this means that the potential for abuse of these authorities should not concern us—it should—or that the NSA has not 

made serious mistakes or that the law in this area could not be improved. Indeed, there is a place for additional transparency, safeguards, and oversight. But these conclusions are helpful in clarifying the issues. 

Second, the report recommends that ‘‘The national security of the 

United States depends on the continued capacity of NSA and other 

agencies to collect essential information. In considering proposals 

for reform, now and for the future, policymakers should avoid the 

risk of overreaction and take care in making changes that could 

undermine the capabilities of the Intelligence Community.’’ And 

that is very good advice, folks. 

One recommendation that may reflect this advice is the Review 

Group’s proposal to preserve the government’s controversial ability 

to query telephone metadata, but with some changes. 

One of those recommended changes is that private entities hold 

the metadata. This is an interesting idea perhaps worth investigating. But I think it is legitimate to have concern that it may 

create as many privacy problems as it solves. Indeed, private companies seem to be allowing their customers’ information to be 

hacked on what seems to be a daily basis. 

Just as importantly, I am concerned that in other instances the 

Review Group may not have followed its own advice. Some of its 

other recommendations may seriously threaten our national security, if adopted collectively. 

For example, some of the recommendations in the report appear 

to make it more difficult to investigate a terrorist than a common 

criminal. Some appear to extend the rights of Americans to foreigners without good reason. And some appear to rebuild the wall 

between our law enforcement and national security communities 

that existed before September 11, 2001. Of course, that wall helped 
9 

contribute to our inability to detect and thwart the attacks on that 

day, and thousands died as a result. 

I do not mean to criticize the effort or intentions of the Review 

Group. But I am concerned that the group was given such a relatively short time to do their work. As a result, for example, I understand the group spent only one day at the NSA. And if I am 

wrong on that, you can correct that. 

I am also concerned that the group lacked some important perspectives. For example, none of the members has experience in supervising terrorism investigations at the Department of Justice or 

the FBI. 

I am concerned that the group produced a large number of recommendations, but did not develop some of them fully. 

As the Review Group wrote, its recommendations ‘‘will require 

careful assessment by a wide range of relevant officials, with close 

reference to the likely consequences.’’ That is pretty good advice, 

and I look forward to beginning that process today. 

Now I have a question for Dr. Morell. After the Review Group 

issued its report, you wrote an opinion piece in which you emphasized that the report recommends changing the telephony metadata 

program rather than ending it. You wrote, ‘‘Had the program been 

in place more than a decade ago, it would likely have prevented the 

September 11th terror attacks.’’ Further, you wrote that the program ‘‘has the potential to prevent the next 9/11.’’ 

So my question: I would like to have you expand upon why you 

hold those two opinions. And also, can you give us any specific examples of how the metadata program was valuable to you when 

you headed the CIA? 

Chairman LEAHY. Press the button. 

Mr. MORELL. Senator, let me first say that the reason I wrote the 

op-ed, particularly with regard to 215, is I felt that there was a 

misperception on the part of the media and much of the American 

public that the Review Group had indeed recommended an end to 

the program. And we did not do that. We recommended a change 

in approach, and that was the main reason I wrote the op-ed, is 

to make that clear. 

It is absolutely true that the 215 program has not played a significant role in disrupting any terrorist attacks to this point. That 

is a different statement than saying the program is not important. 

The program, as I said in the op-ed, only has to be successful once 

to be invaluable, and it does carry the potential going forward to 

prevent a catastrophic attack on the United States. And that was 

another point I was trying to make, and I believe it. 

Another point I will make, Mr. Chairman, is that—and we talked 

about this as a group—there is value in a negative query of the 215 

data. So if you have a terrorist overseas who is talking about an 

attack and you do not know where that attack is going to be, it is 

invaluable to query the 215 data base, and if the answer is that 

terrorist does not have any contacts in the United States, that 

gives you some reassurance that the attack will not be here. We 

talk about that in the report, and I think that is another important 

point. 

Senator GRASSLEY. Thank you. For anyone, I have a question, 

but let me read a lead-in. 
10 

One of the changes that your report recommends concerning the 

telephony metadata program is that a private third party or parties 

hold the metadata instead of the NSA. But we have seen many recent instances where companies like Target and Neiman Marcus 

have been unable to protect private data. My constituents would be 

very concerned about privacy issues. So any one of you, but hopefully not all of you because I want to ask one more question, what 

was the group’s assessment of the privacy risks associate with your 

recommendation that the metadata be stored in private hands? 

And did you speak to the telephone companies to explore whether 

they are willing or able to hold the metadata? 

Mr. STONE. We did speak with the telephone companies about 

that, and they obviously would rather not hold that data. Our judgment about the government holding the data is that the primary 

danger of the 215 telephony metadata program is not if it is used 

only in the way in which its use is authorized, but that it leaves 

sitting out there a huge amount of information, personal information about Americans that could be abused in awful ways. And the 

question is how to avoid that potential abuse. 

One of the ways we decided it makes sense to avoid that is to 

take it out of the hands of government. The concern of the Fourth 

Amendment, the concern of our constitutional history is that government can do far more harm if it abuses information in its possession than private entities can. And, therefore, our judgment was 

that the government should not have possession of this information 

because if it does, there is always the possibility of someone coming 

along down the road, seeing this as a great opportunity to get political dirt on individuals, on their activities, on their organizations, 

their associations, and that that is a danger that we want to avoid. 

On the other hand, we do believe that the data is useful, and the 

idea was to find a way that would enable the government to have 

access to the data but minimize the risk that it could be abused 

in that way. And our judgment was that keeping it in private 

hands would still pose, as you say, privacy risks, but the privacy 

risks would be of a very different order, and they would be much 

less in the sense of the kind of abuse that historically we are most 

concerned about with the government. 

Senator GRASSLEY. This will be my last question. One of the 

things that I am concerned about is that we not rebuild the wall 

that exists between our law enforcement and national security communities before September 11th. Part of that is making sure that 

we do not make it harder to investigate a terrorism case and any 

other type of crime. FBI Director Comey weighed in last week on 

reforms you proposed to national security. He called these letters 

‘‘a very important tool that is essential’’ to the work of the FBI. He 

also stated, ‘‘What worries me about the suggestion that we impose 

a judicial process on NSLs is that it would actually make it harder 

for us to do national security investigations than bank fraud investigations.’’ 

Question to Professor Swire—maybe somebody else more appropriate, but whoever—why would we want to make it harder for 

agents and prosecutors to investigate espionage and terrorism than 

other crimes? Did you consult with Director Comey personally 

about these recommendations? And, finally, aren’t your rec-
11 

ommendations in this area almost exactly the same as what you— 

I assume Professor Swire—recommended to this Committee back in 

2007, long before the recent controversy about NSA? 

Mr. SWIRE. Well, law professors are always thrilled if someone 

reads their articles from several years ago, so it is true that I wrote 

on FISA prior to that. It is also true that we went to the FBI, that 

the FBI lawyers came to us, and that we met with Mr. Comey last 

week to discuss these issues. So we have had quite extensive discussions. 

In terms of the comparisons with criminal, any criminal investigation, of course, you have all the criminal powers, and then you 

may also have the NSL and foreign intelligence authorities. There 

are some differences. One difference is that in the criminal investigations, if there was some mistake or problem, that comes to 

light, and there is a check and balance there. If you have 50 years 

of secrecy, we never find out what the government is doing. And 

so because of that risk of long-running secrecy and not knowing 

what it is, some extra safeguards are appropriate for these secret 

foreign intelligence things. That is at least one difference that exists. 

Senator GRASSLEY. Okay. 

Chairman LEAHY. Thank you. I am going to yield to the Chair 

of the Senate Intelligence Committee, Senator Feinstein, but before 

I do that, I just want to place in the record—and I meant to have 

done this earlier—a detailed report published by the New America 

Foundation that concludes the executive branch claims about the 

effectiveness of Section 215 phone records are overblown, even misleading; and then a new report by the Hoover Institution researcher concluding that Section 215 phone records are only of 

marginal value. Without objection, those will be placed in the 

record. 

[The information referred to appears as a submission for the 

record.] 

Chairman LEAHY. Again, I want to say how much we appreciate 

that Senator Feinstein is a Member of this Committee with her expertise, and the other Members who also serve on the Intelligence 

Committee in both parties. Senator Feinstein. 

Senator FEINSTEIN. Well, thank you very much, Mr. Chairman. 

I appreciate those comments. 

I would like to submit a statement for the record, if I may. 

Chairman LEAHY. Sure. 

Senator GRASSLEY. Can I, at the same time, ask for something 

to be put in the record? 

Senator FEINSTEIN. Absolutely. 

Chairman LEAHY. Without objection, the items by both Senator 

Feinstein and Senator Grassley will be made part of the record. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

[The information referred to appears as a submission for the 

record.] 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Mr. Chairman, the Intelligence Committee—and I think virtually 

every Member was there, perhaps missing one—had the opportunity of talking to the professorial element of this Committee last 
12 

week. The intelligence element was not there, and we very much 

regret that Mr. Clarke and Mr. Morell were not there. But, Mr. 

Morell, particularly for your ears, I think what we thought in reading the report and in listening to the testimony was that the group 

did not want the program to continue. And then I read your oped piece in the Wall Street Journal—excuse me, in the Washington 

Post, and I would just like to read parts of it and see if the Committee agrees, if I may. 

‘‘Several news outlets have reported that the review group had 

called for an end to the program, but we did not do that. We called 

for a change in approach rather than a wholesale rejection. To better protect the privacy and civil liberties of Americans—key values 

of our Republic—we recommended that the Government no longer 

hold the data and that it be required to obtain an individual court 

order’’—which I want to ask you about—‘‘for each search. But make 

no mistake: The review group reaffirmed that the program should 

remain a tool of our Government in the fight against terrorism.’’ 

Then you go on: ‘‘Another misperception involved the review 

group’s view of the efficacy of Section 215; many commentators said 

it found no value in the program. The report accurately said that 

the program has not been ‘essential’ ’’—and I want to also talk 

about the word ‘‘essential’’—‘‘ ‘to preventing attacks’ since its creation. But that is not the same thing as saying the program is not 

important to national security, which is why we did not recommend 

its elimination.’’ 

Mr. Swire, do you agree with that, yes or no? 

Mr. SWIRE. There are about 14 things there. I am sorry, Senator, 

but I was trying to write them down: yes on going to the private 

sector and keeping the program; yes on the court order for each 

search; and the last part was not that it—that it is useful to have 

the information from the program, roughly speaking? 

Senator FEINSTEIN. Yes, for national security. 

Mr. SWIRE. Yes, I agree with that also, yes. 

Senator FEINSTEIN. Okay. Mr. Sunstein. 

Mr. SUNSTEIN. I agree with every word. 

Senator FEINSTEIN. Professor Stone. 

Mr. STONE. I agree. I think it is important to understand what 

the value is. The value is not demonstrable from specific cases that 

have arisen in the past that suggest that but for 215 we would not 

have been able to thwart any particular terrorist attack. The value 

would be primarily—it is a needle in a haystack problem, that it 

is possible that in the future there will be an instance in which 

215, if it exists, will enable us to prevent a major attack which otherwise we could not prevent. Our judgment was it does have value 

in that way. 

Senator FEINSTEIN. Thank you. 

Mr. Clarke, welcome. It is good to see you again. Yes or no? 

Mr. CLARKE. Senator, I think we are, surprisingly, all in agreement. 

Senator FEINSTEIN. Good. That is what I wanted to know. Thank 

you very much. 

Now, the word ‘‘essential,’’ this is a word that is debated as to 

its meaning. We have one recent court decision out of the Southern 

District of New York, and I would like to read from page 48 of that 
13 

opinion. ‘‘The effectiveness of bulk telephony metadata collection 

cannot be seriously disputed. Offering examples is a dangerous 

stratagem for the Government because it discloses means and 

methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in congressional testimony and in 

declarations that are part of the record in this case. In this court’s 

view, they offer ample justification.’’ And then it goes into al 

Qaeda-associated terrorists in Pakistan, connected with an unknown person in the United States, the Najibullah Zazi case, and 

particularly where 215, according to the court, came in was that 

NSA was able to provide a previously unknown number of one of 

the co-conspirators, Adis Medunjanin. 

The next one is January 2009, an extremist in Yemen, a connection with Khalid Ozani in Texas, NSA notified the FBI, which discovered a nascent plot to attack the New York Stock Exchange. 

Using a 215 order, NSA queried telephony metadata to identify potential connections. Three defendants were convicted of terrorism 

offenses. 

And the fourth—again, this is a court opinion—in October 2009, 

while monitoring an al Qaeda-affiliated terrorist, the NSA discovered David Headley, who is a major figure, was working on a plot 

to bomb a Danish newspaper office that had published cartoons depicting the prophet Muhammad. And it goes on from there. 

So the word ‘‘essential,’’ I think is a word that is often debated. 

You also say that it was likely that with al-Mihdhar this could 

have prevented 9/11 and it could quite possibly prevent another 9/ 

11. Am I correct about that, Mr. Morell? 

Mr. MORELL. We as a group, ma’am, did not—— 

Senator FEINSTEIN. No. I am asking you what you said in the oped. 

Mr. MORELL. Yes, I said that. But we never talked about that as 

a group, about 9/11. We never came to a judgment about that as 

a group. 

Senator FEINSTEIN. Okay. So it was just your opinion. 

Mr. MORELL. That was my opinion. 

Senator FEINSTEIN. Now, let me ask you another. General Alexander testified to us that in 2009 the NSA did, in fact, go to the 

FISA Court and found that it took nine days average to be able to 

collect the information that was necessary. Are you aware of that? 

Mr. MORELL. No, ma’am. 

Senator FEINSTEIN. Well, that is according to testimony by General Alexander. We also know—my time is up? Is that what you 

are saying to me? 

Chairman LEAHY. Yes. Go ahead and finish your question. 

Senator FEINSTEIN. Would you just let me finish? 

Chairman LEAHY. Of course. 

Senator FEINSTEIN. I really appreciate that. Thank you. 

He can be very strict. 

This was used after the fact in the Boston bombing, but here is 

the difference: The Boston—and they used emergency powers, and 

they were able to get information quickly. This is used to prevent 

an attack. So those of us that see it important to prevent another 

attack—I do not need to tell you. Terrorism is up, groups have me-
14 

tastasized. We know they will come after us if they can. There is 

a real litany here of fact. So the question comes: Do you not find 

value, substantial value, in being able to prevent this attack? 

Mr. MORELL. So I find substantial value in any tool that helps 

us prevent attacks. I believe that 215 carries the potential to prevent attacks, and that is why I think it needs to continue. But one 

of the important issues, I think, is the question of efficacy for us 

did not really impact our view on the change in approach to the 

program. We do not believe that we are going to add a substantial 

burden to the government by making the changes we are suggesting. If something cannot be done quicker than nine days, then 

they need to make some changes to make that happen. 

We also wrote into our report an emergency provision so that in 

an emergency situation, when the intelligence community knows 

they need to move quickly, they will be able to query the data without a court order, going to the court after the fact. 

Senator FEINSTEIN. Thank you very much. 

Chairman LEAHY. And I should note—you were not here for this 

part of the testimony. When you talk about 9/11, one of the biggest 

problems there is that we had the information, it would have prevented 9/11. But the people with it did not communicate as they 

should have, and I recall some of the information we had finally 

being translated a week or two after the event. 

Senator Lee. 

Senator LEE. I am told that my distinguished colleague from 

South Carolina, a senior to me, needs to go somewhere, so in deference to the gentleman from South Carolina, I am going to let him 

go first. 

Chairman LEAHY. Do you really want to give him that much deference? 

Senator LEE. Well, he has been nice. 

Chairman LEAHY. Can we vote on it? 

Senator GRAHAM. I have always let you talk. And I think your 

air force base should be bigger. 

[Laughter.] 

Chairman LEAHY. Senator Graham, please go next. 

Senator GRAHAM. Thank you. 

Chairman LEAHY. And just so we will know, we will then go to 

Senator Blumenthal, then back to Senator Lee, then back to Senator Franken, then to Senator Cruz. Senator Graham. 

Senator GRAHAM. Let us pick up on what the Chairman said. 

You wrote an op-ed—— 

Chairman LEAHY. And turn your microphone on. 

Senator GRAHAM. Okay. There we go. Michael, you wrote an oped piece opining that you think that this technology, if it had been 

in place before 9/11, could have helped prevent the attack. That is 

your personal opinion. 

Mr. MORELL. Yes, sir. 

Senator GRAHAM. How many people agree with that? Raise your 

hand if you do. 

Mr. SUNSTEIN. I would say, Senator, that—— 

Senator GRAHAM. That is not raising your hand. 
15 

Mr. SUNSTEIN. I think the reason we are not raising our hand 

is not that we disagree with Michael Morell, but that we are not 

specialists in the details of 9/11. 

Senator GRAHAM. Fair enough. 

Mr. SUNSTEIN. We did not investigate. 

Senator FEINSTEIN. They said they did when I read it. They just 

said they did when I read it. 

Senator GRAHAM. Well, we will just go with what you said. 

Mr. SUNSTEIN. We agreed with the quotation Senator Feinstein 

read from Mr. Morell’s Washington Post op-ed. On the 9/11 issue 

in particular, we did not discuss that as a group. 

Senator GRAHAM. Okay. Well, we will take what she said. They 

agreed with you. That is good. 

The bottom line is let us get way at the 30,000-foot level. What 

are we trying to do? Do you believe as a group we are at war with 

radical Islam? 

Mr. MORELL. I do. 

Senator GRAHAM. How many of you believe we are at war? 

Mr. CLARKE. I think we all do, Senator. 

Senator GRAHAM. Okay. The difference between fighting a crime 

and a war—there are fundamental differences. Do you agree with 

that? Intelligence gathering is a very important tool in fighting a 

war. Do you all agree with that? 

Mr. SUNSTEIN. That is—— 

Senator GRAHAM. Prevention is important in crime—— 

Mr. SUNSTEIN. That is a theme of our report. 

Senator GRAHAM. Yes, so I guess what I am trying to let the Nation know is that what you all gentlemen are trying to do is we 

are trying to find a way to fight a war within our values, and this 

is an unusual situation. There is no capital to conquer; there is no 

navy to sink; there is no air force to shoot down. We are fighting 

an ideology. And if we all believe that the enemy does not mind 

dying—as a matter of fact, that is first prize for these guys, is to 

die—we have got to hit them before they hit us. Is that generally 

the thought process here, we have got to identify the attack before 

it happens, they will not be deterred by death? 

Mr. SUNSTEIN. That sounds fair, and some version of that is in 

our report. 

Senator GRAHAM. Okay. Fair enough. Now, Anwar al-Awlaki, he 

is deceased, but he was an American citizen in Yemen. How did we 

miss the fact that a major in the United States Army was communicating with him? I mean, we have got all these programs, and everybody is wanting to revisit these programs, which I totally understand. But we have got a major in the United States Army that 

wound up killing 199 people, I think, that was openly talking for 

the whole world to see to one of the chief terrorist suspects in the 

world in Yemen. How did we miss that? And what can we do to 

make sure we do not miss that in the future? 

Mr. STONE. I do not quite understand, to be honest, the thrust 

of the question. I mean, our recommendations do not take away the 

ability of the government to use the bulk telephony metadata program. We shift where it stays, whether that is from the government or to private sources. We say a court order should be necessary. But as we made very clear in the report, we do believe it 
16 

is critical to protect the national security of the United States, and 

we believe that our recommendations are consistent—— 

Senator GRAHAM. The fact that nobody can answer the question—I understand reforming the program and trying to be more 

sensitive to privacy concerns. But no one has really talked much 

about the fact that you had a major in the United States Army on 

active duty openly communicating with a known terrorist, following 

his every word, and eventually got radicalized and killed 19—— 

Mr. SWIRE. Senator, if I—so we do have a section in the report 

about military and war that talks about how the same Internet, 

the same hardware, the same software that is used in Afghanistan 

and Iraq these days are used back home. And so when it comes to 

the surveillance on hardware and software over there, it is the 

same hardware and software here. And that did not used to be true 

to nearly the same extent in previous wars. So how we build an 

Internet at home and an Internet for warfighting is a challenge we 

talk about in the report. 

Senator GRAHAM. Let us just use the Anwar al-Awlaki analogy. 

If he is calling someone—we got his cell phone, and he is dialing 

someone in the United States, calling someone, the program after 

the changes you are recommending, can it still pick that up? 

Mr. SWIRE. Yes. 

Mr. MORELL. Yes. 

Senator GRAHAM. Okay. Would a court order be necessary? 

Mr. CLARKE. Unless there was an emergency, yes. 

Senator GRAHAM. Well, do you agree with me that you do not 

need a court order to surveil the enemy in a time of war? 

Mr. CLARKE. Overseas, yes. 

Mr. SUNSTEIN. Not in the United States. 

Senator GRAHAM. Do you agree with me he would be an enemy 

combatant, that he would fit the definition of an ‘‘enemy combatant’’ ? 

Mr. SUNSTEIN. We would probably want to look at that, you 

know, the legal authorities on that. I do not think we disagree with 

it, but the point of a legal view—— 

Senator GRAHAM. Well, the main point is that you believe we can 

still pick up that phone call? 

Mr. SUNSTEIN. Okay. Well, we—yes, we distinguish—— 

Senator GRAHAM. Okay. That is all I wanted. That is good. 

Now, if somebody is calling him from the United States, can we 

pick up that phone call and do something about it? 

Mr. SWIRE. If either end is overseas, it is not 215 that is an 

issue. It is 702 or the Executive order. 

Senator GRAHAM. Most Americans could care less about the titles. They just want to know if somebody in the—— 

Mr. SWIRE. But it is relevant to our recommendations, sir, because on 702, which is the one side is overseas, we keep the same 

structure basically it has today, and we are not—— 

Senator GRAHAM. Okay. So can you reassure America that if 

somebody in the United States is calling a known terrorist in 

Yemen, we can pick that up and do something about it? 

Mr. CLARKE. Yes. 

Senator GRAHAM. And at the end of the day—my time is up— 

isn’t that what we are trying to do? Aren’t we trying to find out 
17 

who is talking to who when the person, one of the people doing the 

talking is somebody we are really worried about attacking the Nation, and we are really not trying to do anything more than that? 

Mr. SUNSTEIN. Yes, Senator, and I think that is a very important 

point because it applies both domestically, where there are concerns about monitoring of American citizens that do not fit our 

aims, and also internationally, where our focus is on the source of 

situations you are discussing and not on picking up people’s private 

communications. 

Senator GRAHAM. Thank you all for your service to our country. 

Chairman LEAHY. And I appreciate you knowing the difference 

between the 702 and the 215, of course, and I would say to my 

friend, Senator Graham, we have to look at what are adequate 

safeguards, especially when we are dealing with an agency that did 

not have adequate enough safeguards to keep a subcontractor from 

stealing millions and millions and millions of files and he is still 

out today after spending millions of dollars, do not know all that 

he did steal. And I just do not want to get lured by all the technology we have, lured into complacency. We saw the same thing— 

and I do not mean to be picking on just the NSA, when the State 

Department and the military put all kinds of files where a private 

first class could go in and download it all on a Lady Gaga CD and 

then cause, as we all know, enormous difficulties for the United 

States when these highly classified cables from our Ambassadors 

were made public. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you for 

holding this hearing. Thank you to each of you for your very impressive and extraordinarily important work. I think you have elevated and provided credibility to a very specific and very significant proposal that advanced the reform effort in our intelligencegathering operations. And, you know, Senator Graham referred to 

the present effort to counter terrorism as a ‘‘war.’’ There is a saying—it is an adage. I believe it is attributed to the Romans. My 

classic education is not good enough to know. But the saying is, ‘‘In 

war, law is the first casualty.’’ And you have provided a really profoundly important service in making sure that we do not have law 

as the casualty. And as you say in your report—it is the first principle you state—‘‘The U.S. Government must protect at once two 

different forms of security: national security and personal privacy.’’ 

And there is a reason why courts matter, why the Founders of our 

Nation thought they mattered. They wanted to prevent general 

warrants and secret courts, like the Star Chamber. And it was one 

of the reasons they rebelled against it. 

And so my questions focus on the Court, and I have advanced 

and proposed the constitutional advocate, the public interest advocate, however you want to label it, that would be independence, institutionalized to assure that there is an adversarial proceeding 

whenever the advocate thought it was necessary, not on an ad hoc 

basis, not when the Court thought it might be useful. But courts 

benefit from hearing both sides and from having the advocate decide that another side should be represented. 

And I would like to hear from you, because we have heard the 

contrary point of view that it should be an amicus brief, as it has 
18 

been sometimes called, or some other kind of ad hoc proceeding, 

and maybe beginning, Professor Sunstein, with you, stating on behalf of the panel why you chose this structure, because obviously 

the President is going to have to make a decision as to whether to 

adopt that idea, and we as a panel and the Senate will have to deliberate as well. 

Mr. SUNSTEIN. Well, history is relevant here. There was an understanding when the Court was created that it would be basically 

dealing with issues of fact, like whether a warrant was justified, 

not with large issues of law and policy. And as the system has developed over the years, as you are well aware, Senator, often the 

judges are being asked to decide those large questions. And so an 

adversary proceeding seems warranted in a setting of that kind. 

We are well aware that some judges for whom we have a lot of 

admiration on the Court believe that the judge ought to be in 

charge of deciding when the public interest advocate is relevant. 

We think that is not consistent with our traditions. Normally it 

is not the case that the judge gets to decide this interest gets a 

lawyer. So we think to have someone who is a dedicated officer designed to protect privacy and liberty interests is a very important 

safeguard. 

Senator BLUMENTHAL. And the provision of an adversarial proceeding such as you have described, which reflects the change in 

the role of the Court—I think that is a very important point— 

would not necessarily delay it or imperil security if there were 

preclearance and if warrants were granted and then reviewed 

afterward. In other words, we all know in the ordinary criminal 

process some of us have knocked on a judge’s door literally in the 

middle of the night if we thought it was necessary to get a warrant. 

And the same principle applies here, does it not? 

Mr. SUNSTEIN. Yes, that is very important. So Senator Feinstein 

and Senator Graham rightly draw attention to the immediacy of 

certain threats, the fact that something is coming in a way where 

you need information fast, and as you say, it is consistent with our 

traditions to accommodate emergency situations. 

Senator BLUMENTHAL. And in the short time I have remaining, 

perhaps I could ask you to elaborate a little bit on the reasons why 

you recommended a change in the method of selection, which I 

agree is very, very important to the trust and confidence in this 

process. And I think one of the reasons for reforming the whole system is to preserve and enhance trust and confidence of the American people that we are doing both forms of security here, national 

security and personal privacy. 

Mr. SUNSTEIN. Yes, I think it was Justice Frankfurter—I may 

have the reference wrong—who emphasized both the importance of 

doing justice and the appearance that justice is done, and that is 

connected with your point. 

We also think, particularly in the context of the selection of the 

judges for the FISA Court, a little diversity is a good idea across 

Democratic and Republican appointees. And as the report makes 

clear, we have all the respect in the world for the Chief Justice and 

have, you know, nothing critical to say about him in this connection. But it just is the case that if 10 of 11 come from one political 
19 

party in terms of the appointing President, that is awkward, and 

so we would like to see some more diversity. 

Senator BLUMENTHAL. And, again, it is in accord with the traditions of our judicial system that appearance and perception has to 

be served because of the immense and in many respects undemocratic powers that courts exert, undemocratic because we believe in 

elections generally, and here we have unelected FISA Court members operating in secret or other members of the judiciary operating in the open, but they too are unelected. 

And so I think that your point is very, very important, and I 

again thank you all for your service to our Nation. 

Thank you. 

Senator FEINSTEIN [presiding]. Thank you very much, Senator 

Blumenthal. 

The Chairman of this Committee has asked that we recess for 

five minutes, and so without objection, we will recess for five minutes. 

[Recess at 3:30 p.m. to 3:37 p.m.] 

Senator LEE [presiding]. It is rare that a freshman from the minority party gets to chair a Committee proceeding like this one, 

but, you know, who says the race goeth not to the swift? 

First of all, I really appreciate all of you coming here, and I appreciate your willingness to serve on the President’s Review Group. 

The work that you have done has been very helpful, and I am confident that it will do a lot to frame this important discussion as we 

move forward. 

The importance of these issues cannot be overstated. One of the 

things that I liked that you pointed out in your report appears on 

page 15 wherein you pointed out an interesting coincidence, you 

might call it—my word, not yours—that the concept of security has 

dual meaning. On the one hand, it refers to the fact that one of the 

most important, fundamental, sacred obligations of government is 

to keep the people safe, to protect us from each other and to protect 

us from those outside of our country who would harm us. Security 

is one of the most important functions that the Federal Government has. And at the very same time, it refers to something different, it refers to something else that might appear to be in conflict with to create tension with that first concept, and that is the 

concept of security referred to in the Fourth Amendment, that we 

have the right under the Fourth Amendment to be secure, to be secure in our persons, houses, papers, and effects against unreasonable searches and seizures. 

Now, this concept of what that means to be secure in this second 

respect has, of course, changed over time. It has necessary changed 

as our technology has changed. But the fundamental principles underlying that concept of security must necessarily remain the same 

in order for us to remain a free society and in order for our constitutional protections to continue to be meaningful. 

One of the things that we have struggled with as a Congress and 

that we struggle with really as a country as a whole relates to the 

fact that where we keep our papers and what our papers are has 

changed, especially in the last few years. No longer do our papers 

consist exclusively of actual paper. What the founding generation 

would have thought of as papers often exists only in the ether, ex-
20 

ists only in the electronic equivalence of ones and zeros. And those 

are not any longer stored exclusively on hard drives with a finite 

location that might be in our home. A lot of the time they exist only 

in a cloud somewhere. And yet these pieces of information, these 

papers or effects or whatever you want to call them, in many instances are things in which we have, or at least reasonably should 

have, an expectation of privacy that is reasonable, to say the very 

least. 

And so we have to figure out how best to balance these two 

sometimes conflicting interests associated with security. There are 

several ways in which this arises, but we have talked a little bit 

today about the collection of metadata and the fact that we have 

got an enormous amount of metadata that has been collected on potentially 300 million Americans. 

The government notes that it has in place a rigorous review process that must be followed before anyone accesses this data base 

containing metadata on basically every American. What concerns 

me about that is the fact that these are basically internal operating 

procedures. And so what is a policy today, which may well be followed religiously for all I know today, could change tomorrow. And 

I am willing to assume, for purposes of this discussion, that the 

men and women who work at the NSA have nothing but our best 

interests at heart. I am willing to assume that, at least for purposes of this discussion. That might not be the case a year from 

now or four years from now or 10 years from now or 40 years from 

now. 

In fact, we have seen this movie before. We know how it ends. 

We know that eventually, if that much information remains in the 

hands of government for that long, it will eventually be abused. It 

will be manipulated for partisan and otherwise nefarious purposes. 

And we cannot let that happen. 

So let us start with Professor Stone. When we look at this, would 

this be something that you would describe a one of the most compelling arguments in favor of putting more robust restrictions in 

law so that they are not simply in the hands of people, however 

well intentioned they might be, within the NSA? 

Mr. STONE. Yes, I think this is—our primary concern with respect to the collection of metadata is not the actual use of the 

metadata in the ways in which it is authorized, but the risk that 

somewhere down the road, someone will figure out how to and 

want to misuse that data. And so we think safeguards are critical. 

I should also say I think the safeguards that are now in place 

internally are actually quite good. And they are rigorous, they are 

multifaceted. There are checks and balances. There are the Senate 

and House Intelligence Committees. There are Inspectors General, 

there is the Attorney General, the FISA Court. All are looking over 

this. 

But even so, our judgment is that it should be taken out of the 

hands of the government in terms of the holding of the data, and 

that reduces—it does not eliminate entirely but reduces substantially, we think, the potential for the data to be abused in the ways 

that you are talking about. And it is still a question of tradeoffs, 

because even there, there is always a risk. But our judgment is 

that is an important step toward reducing the risk on one side, 
21 

while at the same time preserving the value of the data for national security purposes. 

Senator LEE. I think that is right, and for that reason, Chairman 

Leahy and I and several of my other colleagues across the aisle 

have introduced legislation to try to reform this process in one form 

or another. 

If I can ask one follow-up on this, an additional follow-up on this, 

Mr. Chairman? Some have suggested that it would simply be infeasible, categorically infeasible ever to require a court order as a condition precedent for performing a query of the government data 

base. And let us assume, for purposes of this discussion, that the 

data set will remain—at least does remain for the time being in the 

possession of the government and that we are not going to move 

to a different system in which the government does not have possession. 

The argument frequently arises. You cannot possibly require any 

kind of a court order as a condition precedent for querying that 

data base, even where you have got U.S. citizens involved in the 

query because it would just take too much time. 

Do you know of any reason why that should necessarily be the 

case or why that would unavoidably be the case, why we could not 

get around that by perhaps creating additional FISA Court positions? 

Mr. STONE. We find that wholly unconvincing. Our view is that 

there are practical realities about it. If you are going to add the 

burdens to the FISA Court, you have got to add resources, you 

have got to add judges or magistrate judges, if necessary; but that 

there is no reason why the argument about getting a court order 

for a query of the metadata is any more impossible than it is to 

get a search warrant to search a home. Fundamentally, this is 

what we do all the time, and there are great protections in having 

judges oversee this, and there is no good reason why this should 

not be adopted in this context as well. 

Senator LEE. Thank you. Thank you, Professor. 

Thank you, Chairman. 

Chairman LEAHY [presiding]. Thank you, Senator Lee. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, and thank you, 

gentlemen, for this report. I think it will be a real help as we work 

to improve our privacy and surveillance laws. 

On page 124 of your report, you wrote, ‘‘A free people can govern 

themselves only if they have access to the information that they 

need to make wise judgments about public policy.’’ I could not 

agree with you more, and right now the American people do not 

have the information that they need to make up their own minds 

about these programs. 

I have a bipartisan bill that would fix this, the Surveillance 

Transparency Act of 2013. It has the support of 14 of my colleagues 

and the strong support of the business community, which has 

broadly endorsed the principle of transparency and has endorsed 

my bill specifically. 

When we met last year, late last year, when I submitted written 

comments to your group, I urged you to support the reforms in my 

bill, and I am pleased that your report endorses the same measures 
22 

that are at the core of my bill. I am going to focus my questions 

on the transparency reforms that we agree on. 

First, my question is on government transparency. Seven months 

after the Snowden leaks, the government has yet to publicly disclose even a rough estimate of how many people have had their information collected in the telephone metadata or PRISM programs. 

This is not an accident. Under current law, the American government does not have to do this. 

My bill would force the government to annually disclose an estimate of the number of people who have had their information collected by the NSA under each key surveillance authority. Your report supports this. 

You say that for key surveillance authorities, ‘‘the government 

should, to the greatest extent possible, report publicly on the total 

number of requests made and the number of individuals whose 

records have been requested.’’ 

Why did you support this particular transparency reform? Mr. 

Sunstein, why don’t you begin, and whoever else wants to comment, do so. 

Mr. SUNSTEIN. Well, a theme of our report, consistent with your 

bill, is that sunlight is the best of disinfectants, as Justice Brandeis 

said, and that it is very important for the American people, unless 

there is a very strong national security justification on the other 

side, to get a sense of what their government is doing. So the first 

and foremost goal is about democratic self-government and a free 

society. That is one of the things that distinguishes our Nation 

from some others. And another idea to which you also referred has 

to do with economic interests, which should not be trivialized; that 

there are American companies who are at economic risk because it 

is thought that the American government is forcing them to turn 

over all sorts of stuff. It is just not true. Sunlight shows that the 

program is much narrower and targeted than some people fear. 

Senator FRANKEN. And my bill does that, and I want to talk 

about that next. But any other comments on that? 

I am going to just continue to drill down on this first recommendation because it is different from what the administration 

has been saying and is saying. Your report calls for the government 

to say how many people have had their information collected. My 

bill calls for the government to say how many people have had 

their information collected. Yet last November, representatives 

from the Office of the Director of National Intelligence and the 

NSA came before the Subcommittee on Privacy, Technology, and 

the Law, which I chair, and testified that it would be ‘‘difficult, if 

not impossible’’ for the government to say how many people have 

had their information collected under these authorities. 

Mr. Swire, did the administration communicate this concern to 

you? If so, why did you find it unpersuasive? 

Mr. SWIRE. Thank you, Senator. We talked in some detail with 

the administration about transparency provisions. They certainly 

expressed concern at when there is a provider that has a very 

small number of customers, for instance, that we not tip off people 

who is being surveilled in those cases. There is a national security 

problem there. 
23 

I think when it comes to the number of people who have been 

touched by the orders, they did not focus in their discussions with 

us on that risk in transparency. And my own sense, having talked, 

among others, with the companies on this, is that if there are cooperative efforts to have the companies, the providers, work with the 

government, that we are likely to be able to come up with practices 

that allow estimates. You might not have exact numbers in all 

cases because sometimes you do not know if the same email applies 

to three people or one person. So with precision, you might not 

have exact details, but I think you can have good trend numbers 

and you can have a good overall sense of what is happening. 

Senator FRANKEN [presiding]. Well, I am out of my time, and as 

you can see, we have another vote, so we will recess for five minutes for another vote. Before we do, I just want to, Mr. Sunstein, 

just reiterate this thing about the companies, their ability to disclose because it is hurting them. And we had an analytics firm, 

Forrester, say that the American cloud computing industry stands 

to lose up to $180 billion by 2016 as a result of increased distrust 

of their services, particularly abroad. So thank you for that being 

part of your recommendation. 

We will recess for five minutes because I have got to go vote, and 

I better go right now. So we are recessed—oh, Senator Cruz, good, 

good. I am sorry. I guess I am the Chair. 

[Laughter.] 

Senator FRANKEN. I call on Senator Cruz. 

Senator CRUZ. Thank you, Senator Franken. And I want to begin 

by just thanking each of the members of the panel, thanking you 

for your service in the intelligence community and thank you for 

your service looking at the difficult and important legal issues and 

privacy issues that surround this critical area. 

I think a great many Americans have concerns about the current 

state of NSA surveillance. I, for one, have concerns on two different 

fronts. I am concerned, on the one hand, that the Federal Government has not been effective enough monitoring and surveilling bad 

guys, that we have not succeeded in preventing what should have 

been preventable terrorist attacks. And at the same time, I am concerned that the sweep of the surveillance has been far too broad 

with respect to law-abiding citizens. And I think a great many 

Americans would prefer to see that reversed—far greater scrutiny 

on bad guys, people that we have reason to suspect may be planning a terrorist attack, and far more protection for law-abiding citizens who have committed no transgressions. 

And so I want to begin on the first piece, on targeting bad guys, 

and I want to follow up with the question Senator Graham asked 

earlier concerning Major Hasan and his communications with alAwlaki, a known terrorist leader. Despite all of our surveillance capabilities, despite having significant indications that Major Hasan 

was engaged in these communications, the Federal Government 

failed to prevent the horrific terrorist attack that claimed the lives 

of 14 innocents at Fort Hood. 

And so the first question I would like to ask the panel is: In your 

judgment, why is that? What was lacking that prevented us from 

acquiring the information and acting on it to prevent that act of 

terror? 
24 

Mr. SUNSTEIN. Well, I guess I would say that it is a very important question, and your general thought that to target through surveillance of known bad guys, that is something that we did devote 

a great deal of attention to, and Recommendation 15 is, I would 

say, of great importance. It has gotten essentially no attention so 

far as I can tell. Not even on Twitter has it gotten attention. And 

that recommendation is that we need to expand our authority to 

track known targets of counterterrorism when they first enter the 

United States. So that is a gap in our statutory structure, that 

when they come to the United States they get protections immediately so we cannot track them. 

Whether that would apply in any way to the case you are describing I just—I do not think so, but it is an important gap. That 

one, I think probably as a group, we would need to get more into 

the details than we did. 

Senator CRUZ. Mr. Morell, I would welcome your thoughts also 

on how we could have done better preventing that terrorist attack. 

Mr. MORELL. Senator, it is not something that we as a group 

looked at. That was not our mandate. I am familiar with the case, 

obviously. I am a little constrained here because I do not know 

what is in the unclassified world and what is in the classified 

world. So maybe we could have a conversation afterward in closed 

session. 

Senator CRUZ. Okay. A follow-up question for the panel if anyone 

would care to comment. The same is true with respect to the 

Tsarnaev brothers, the Boston bombers, where in that instance we 

had intelligence from Russia that they were having communications with radical Islamic groups, and yet for whatever reason their 

radicalization continued, the government dropped the ball, and 

they carried out yet another horrific terrorist attack. 

Do members of the panel have any views as to why our surveillance capability did not provide sufficient information to act upon 

to prevent that terrorist attack before it occurred? 

Mr. MORELL. So, Senator, I will tell you, in that case there were 

not any communications between the United States and overseas, 

so there was no surveillance of those communications that would 

have provided any information that would have prevented the Boston bombings. And this is largely a case of domestic radicalization, 

and I think that is the best way to think about it. 

Senator CRUZ. Well, as I understand it, the elder Tsarnaev brother, after traveling to Chechnya, after meeting with radical Islamic 

groups, came back and posted on public YouTube pages admonitions to jihad. And that certainly does not take extraordinary surveillance capability. It simply takes the government looking to 

what he is saying publicly and loudly before that terrorist attack 

is carried out. 

Mr. MORELL. Yes, and I was making a different point, Senator. 

You are absolutely right, but I was making a different point about 

actual communications and the collection of those communications. 

Senator CRUZ. Well, and I think that underscores that my concern that the focus of the programs has been far too much on lawabiding citizens and far too little on people for whom we have significant reason to believe there may be a real danger of terrorism. 

And with respect to Major Hasan, with respect to the Tsarnaev 
25 

brothers, I am not sure there could have been too much surveillance based on the information we had to protect national security. 

Now, flipping to citizens at large, am I understanding correctly 

the conclusions that the commission received that, in your judgment, the bulk metadata program has not to date prevented any 

specific terrorist attack? Is that an accurate understanding? 

Mr. STONE. Yes, that is a fair understanding. We think that it 

has contributed some useful information, but could not say that 

any particular terrorist attack has been prevented because of the 

information learned from the metadata program. 

Senator CRUZ. Now, an additional recommendation, as I understand it from the commission, is that the government itself stopped 

collecting metadata, but that private companies, the phone companies that already have that data preserve that data, and that 

searches be conducted only when there is specific cause to search 

rather than in a blanket sense the government sweeping in every 

law-abiding citizen. 

Mr. STONE. Precisely. 

Senator CRUZ. And is it the judgment of the commission that if 

the data were kept in private hands of the phone companies that 

already possess the data legally, that that would do nothing to undermine the efficacy of the program preventing potentially future 

attacks? 

Mr. STONE. We believe that that way of handling the data can 

be done in a way that would not in any way undermine the efficacy 

of the program. On the other hand, we recognize in our report that 

that is speculative. We do not know that for a fact. And if, in fact, 

it turns out that there are inefficiencies that make it more difficult 

to use the data in an appropriate way, that the alternative is to 

have it held by a single private holder. And that would basically 

eliminate most of the inefficiencies. 

Senator CRUZ. Focusing also on the question of potentially 

overbroad surveillance, a couple of weeks ago Senator Sanders 

wrote a letter to the NSA asking if the NSA, quote, has spied or 

is the NSA currently spying on Members of Congress or other 

American elected officials, and the NSA’s response to that was 

Members of Congress have the same privacy protections as all U.S. 

persons, which certainly suggests the answer to that question is in 

the affirmative. 

Now, as I understand it, each of you were granted security clearances and the ability to see classified information and court opinions. So the question I would ask this panel is: Are you aware, has 

the NSA ever done surveillance on Members of Congress or other 

elected American officials? 

Mr. SUNSTEIN. We are not aware of any such, and one of the 

things we learned in our review is that there is no targeting by the 

NSA of people because of their political views or their religious convictions or their political party. So in terms of concretely some details, we may not have precise questions that every one of which 

we have off-the-top-of-the-mind answers to, but politics, religion, 

political views, that is not what they are interested in. 

Mr. SWIRE. Just one small thing. We are talking about in recent 

years. We are not talking about back in the 1960s and 1970s when 
26 

there was a different history about intelligence agencies doing 

things that got exposed. 

Senator CRUZ. No, I mean in current years, although I do want 

to clarify, Professor Sunstein, one thing you said about religious 

views. I assume you would agree that a commitment to jihad would 

not qualify as a religious view and, indeed, would be a political position and embrace of violence that merits very close scrutiny to 

prevent that violence from being carried out. 

Mr. SUNSTEIN. Yes, if there is reason to believe the person is 

threatening to the United States, that would not fall within protected religious belief. 

Senator CRUZ. A follow-up question related to the question about 

Members of Congress. Is any member of the panel aware whether 

the NSA has spied or is spying on the judiciary or, in particular, 

members of the Supreme Court? 

Mr. SUNSTEIN. We have no information to that effect and would 

not anticipate that. 

Senator CRUZ. Very good. Well, I want to thank each of you for 

being here. The remainder of the Committee is off voting, and so 

with that, we will take a five-minute recess. And then I expect my 

colleagues will return, and the hearing will commence again then. 

Thank you. 

[Recess at 4:05 p.m. to 4:15 p.m.] 

Chairman LEAHY [presiding]. I am almost afraid to ask what the 

joke is, but those hidden microphones we have under your table 

probably will tell us. The surveillance camera. 

[Laughter.] 

Chairman LEAHY. People are coming back. I just wanted to note 

a couple quotes from your report. One is the question is not whether granting the government authority makes us incrementally 

safer, but whether the additional safety is worth the sacrifice in 

terms of individual privacy, personal liberty, and public trust. It is 

the public trust, as we know—you know, so many times we have 

to rely on individuals in the public who might give us information 

that can be valuable, but they have to have the public trust. Law 

enforcement knows this, the same with the intelligence community. 

And I think I am about to yield to Senator Whitehouse but, Mr. 

Morell, in your review did you identify a difference—and I think 

you have already answered this in one question—between the demonstrated utility of the government’s activities under Section 702 of 

FISA, which is aimed at non-U.S. persons abroad, and that of the 

phone records program under Section 215? 

Mr. MORELL. Yes, Mr. Chairman. 702 has proven to be much, 

much more valuable as a counterterrorism tool than has 215. 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Mr. Morell, how would you characterize the value of the 215 program from an intelligence perspective and, if you will, from a safety 

perspective? Even if it has not generated intelligence, the fact that 

it could might be of some value, and I am interested in your assessment of its value in both of those dimensions. 

Mr. MORELL. Yes, Senator, that is exactly where I am. It is absolutely true that 215 has not, by itself, disrupted, prevented ter-
27 

rorist attacks in the United States. But that does not mean that 

it is not important going forward, because as I said in my op-ed, 

it only needs to be successful once to be invaluable. 

One of the ways that I think about this is many of us have never 

suffered a fire in our homes, but we still all have homeowners’ insurance to protect against that. And that is one of the ways I think 

about 215. 

Senator WHITEHOUSE. I have had the concern that the prospect 

of an unauthorized leak and a sudden, spontaneous, unanticipated 

disclosure was not foreseen by the intelligence community, and 

that there did not appear to be a response that was timely, sensible, where it did not seem to be at all prepared. What is your 

sense of what the reaction was by the intelligence community? Was 

it really as much of a scramble as it looked like from the outside? 

Mr. MORELL. Senator, I was inside for part of it and outside for 

part of it. So my sense is that the strategy that was being pursued 

was not successful, clearly not successful. The strategy that was 

pursued did not deal—did not mitigate the lack of public trust, did 

not win back any of the public trust. 

It was absolutely clear to me—and this picks up on something 

Professor Stone raised earlier—that this was, as you know, one of 

the most overseen programs in the history of the intelligence community, within NSA—— 

Senator WHITEHOUSE. In the history of the country, I would say. 

Mr. MORELL. In the history of the country. Within NSA, within 

the executive branch and the interagency, within the Justice Department, within the Intelligence Committees of Congress, and 

with the judiciary, which is, as you know, very, very unusual for 

an intelligence program. And I think that there was a sense in the 

intelligence agencies and in the executive branch that that level of 

oversight was enough to keep the public trust if there was a disclosure, and I think that turned out to be wrong. 

Senator WHITEHOUSE. I wonder if it might have done better if 

within the first couple of weeks, frankly, a full disclosure of how 

the program had been carefully overseen came out, because it took, 

it seemed to me, days initially and really weeks until there was a 

solid, comprehensive review. In fact, what you have just said is one 

of the clearer expositions that we have heard yet. I think this is 

one of those cases where, you know, a not completely accurate 

image got across town before the truth got its boots on, and this 

is going to happen again. I mean, we live in a society in which 

there are going to be leaks. And I think for the intelligence community not to be prepared for this is a mistake, and in particular, it 

is a mistake because there was no analysis of—if it all happens at 

once and we make a hash of responding to it, what happens to this 

program, you dial back from that, if that is the way you are thinking, to being more candid up front and diminishing that risk. And 

I think we could have been a lot more candid with the American 

people up front about this program without creating any significant 

national security loss. 

So, anyway, that is my thought. My time is running out, and I 

just want to take a moment and thank you for your service to our 

country. In my time on the Intelligence Committee, I found you always extremely capable and honorable. And I want to also thank 
28 

Mr. Clarke here, who has warned of many things that, if we and 

others had listened more carefully, we could have avoided some 

real disasters. So I am very pleased that both of you are here today 

and want to thank you. 

Chairman LEAHY. As Chairman of this Committee, I would join 

with that. 

What we are going to do, I am going to yield to Senator Sessions, 

who has been running back and forth with me to vote. I am going 

to ask Senator Blumenthal, the senior Senator from Connecticut, 

to take the Chair. Then we will recognize Senator Coons and Senator Klobuchar. But before I leave, with the indulgence of the 

Members, I have spent decades on this Committee. We have had 

some terrific panels. I cannot think of anybody that brings the 

wealth and broadness of knowledge to an issue that the five of you 

do. And I say that just because you have given a great deal of your 

time to public service, but a great deal of your time in doing this, 

and it is extremely valuable. Whatever we do is going to be influenced heavily by your report, and I appreciate that. I know the 

President also appreciates the amount of time you have done. With 

some of you I go back longer, as I have with Mr. Clarke, but, Mr. 

Morell, in your days especially as Acting Director of the CIA, the 

clearness of the briefings you gave to several of us—it was unfortunate they were all closed-door so the public did not see that they 

were, but they were extraordinarily helpful, and that was something you heard from both Republicans and Democrats, and I appreciate that. 

And, of course, Professor Sunstein and I have know each other 

for a long, long time, and he has been extremely helpful to this 

Committee. 

Professor Stone, Professor Swire, thank you so much for the time 

you have taken. 

So I am going to turn it over to Senator Blumenthal and yield 

to Senator Sessions. 

Senator SESSIONS. Thank you. Well, I know Senator Leahy has 

spent a number of years dealing with these issues also, and I believe the PATRIOT Act that he helped craft and we all worked on 

and spent hours and hours and hours on was not one of these 

things where you have to reduce constitutional rights in order to 

protect America. I think that was the wrong characterization of it. 

I believe everything in that bill was consistent with then-existing 

criminal law techniques that were used every day by prosecutors 

in the counties of America, in the U.S. Attorney’s Offices, which I 

was for almost 15 years. And I do not believe that there is anything there that we should be apologizing for. 

So the committee is an excellent committee and a highly intelligent committee, but I would note that three of the members never 

had hands-on experience with this. You have written about it, but 

you have not been in the field directly dealing with these issues. 

And I think anyone would say it is a pro-civil libertarian panel; 

therefore, I am rather pleased that you fundamentally, I think, 

agreed with at least some of what I have said. 

You say, ‘‘ . . . although recent disclosures and commentary have 

created the impression in some quarters that NSA surveillance is 

indiscriminate and pervasive across the globe, that is not the case. 
29 

NSA focuses on collecting foreign intelligence information that is 

relevant to protecting the national security of the United States 

and its allies.’’ And I think that—I know you did not say that lightly. I know you would not have said that if you did not believe it. 

You go on to say the group ‘‘found no evidence of illegality or 

other abuse of authority for the purpose of targeting domestic political activity.’’ I think that is good to hear, and that has always 

been my impression. 

And, also, you said, ‘‘In our review, we have not uncovered any 

official efforts to suppress dissent or any intent to intrude into people’s private lives without legal justification. NSA is interested in 

protecting the national security, not in personal details unrelated 

to that concern.’’ 

Of the 300-and-something million American people, they are not 

interested in what all we are saying on our telephone calls. So I 

think that is important. I thank you for that. And I believe those 

who have raised concerns about it could take comfort, some comfort 

into that. 

I was a prosecutor, as I said, for a long time, and I want to raise 

a question about the metadata. That sounds so awful and scary 

that it makes us nervous, but in conventional prosecutions in 

America today, a county prosecutor who is interested in knowing 

who a criminal suspect is talking to issues a subpoena to the phone 

company, and they submit the records to him. And then he examines the records to see if Bad Guy One is talking to Bad Guy Two 

shortly before the robbery took place, or whatever. This is the kind 

of thing that is done every day in every office. 

The DEA, the IRS can issue records—obtain your motel records, 

your telephone records. The IRS can get every bank record you 

have administratively—they do not even have to issue a grand jury 

subpoena for it—and examine somebody’s financial records. 

Now, the reason is these are not their records. They are not the 

individual who is being investigated records. They are the phone 

companies’ records, the bank records, the hotel’s records. Right? I 

mean, that is the difference. You have a diminished expectation of 

privacy, the Supreme Court has clearly held for the last 100 years, 

I suppose, in records not held by you. 

Okay. So the records now are brought to the United States somehow. They are in our custody because of the way the computer systems work, and we get numbers, basically. So, Mr. Morell, I guess 

you have used this system. Would you share with us, is there any 

difference between the traditional issuing of subpoenas for records 

and the way this is done and what the importance, or lack of it, 

of the government getting the records from the companies in bulk 

and then accessing them? And, finally, to what extent is content 

obtained, the actual conversations? 

Mr. MORELL. Yes, Senator, I am not the best person to answer 

that question, so let me defer to my colleagues. 

Senator SESSIONS. Okay. Who would like to—Mr. Stone? And, 

Mr. Stone, I am glad to hear your comment, but you are on the 

board at the ACLU, I believe. Is that right? 

Mr. STONE. The National Advisory Board, yes. 

Senator SESSIONS. And did you support the ACLU lawsuit 

against the government raising many issues concerning this? 
30 

Mr. STONE. I had nothing whatever to do with that at all. 

Senator SESSIONS. So you do not feel any conflict—— 

Mr. STONE. No. 

Senator SESSIONS [continuing]. In serving on this—Okay. 

Mr. STONE. Not in this way. 

Senator SESSIONS. Go ahead and see if you could—I would be 

glad to hear your answer. 

Mr. STONE. I think what has changed is the nature of the technology, and so when you talk about subpoenas, whether it is 

through a grand jury or an administrative subpoena, typically they 

are looking for very focused type of information relevant to a particular investigation, narrowly defined. 

When you are comparing this to the metadata, you are talking 

about millions of Americans’ records swept up. No subpoena—— 

Senator SESSIONS. Now, wait a minute. ‘‘Swept up.’’ It is somewhere in a computer. 

Mr. STONE. No subpoena has ever been allowed to reach that 

breadth that happens under the metadata program. So I think the 

analogy is simply a flawed analogy. 

Senator SESSIONS. Well, nobody is going through and looking at 

every record that is there. They have to have some sort of indicia 

that is valuable on investigation to even inquire into it. 

Mr. STONE. Yes, but you were drawing an analogy to the subpoena, and what I am saying is that the subpoena traditionally has 

to be relatively narrowly drawn to particular information directly 

relevant to a particular inquiry. And the metadata program does, 

in fact, elicit vast amounts of data far beyond anything that any 

subpoena in the history of the world has been allowed to gather. 

Senator SESSIONS. Well, okay. Let us get this straight. So the 

metadata comes in, and the only difference is it was in the computers of the phone company, but for easier access, it is put in the 

computer of the government somewhere. And the inquiries only go 

to those records, just like they would have gone to the phone company. The only difference is for convenience in computer access, the 

government can get it quicker because some of these issues are life 

and death. 

Mr. STONE. As the Supreme Court—five Justices, at least, of the 

Supreme Court have explicitly recognized a year ago, there are limits that technology now has called into play about how far this doctrine that, if you disclose information to somebody else, that you 

have no reasonable expectation of privacy in the information. So in 

the Jones case, five Justices, including Justice Alito, in a very important opinion, suggested that that basic principle that, as you 

say, was around for a long time has to be called into question when 

you get into a world where technology allows—— 

Senator SESSIONS. Well, they have not held that to this date, 

have they? 

Mr. STONE. Excuse me? 

Senator SESSIONS. You say they called into question. No holding 

has been so held. 

Mr. STONE. No, and there would be nothing we say has anything 

to do with—— 

Senator SESSIONS. I do not see why they would hold that. I do 

not see any difference really. You are accessing the same records 
31 

whether you get them from the phone company or whether in bulk 

in a more accessible account. 

Mr. SUNSTEIN. Senator, if this is helpful, I think the direction 

you are going in is actually quite compatible with our recommendation. So our recommendation is not that we eliminate the 215 program but that we have a program where the government does not 

have all this stuff, which the government does not in the cases you 

worked on as a prosecutor or district attorney. It does not just have 

it. It gets access to it on a certain showing. And that is exactly the 

model that we are suggesting, and what we suggest is that that 

model will not compromise any national security goal because in 

cases where time is of the essence, human life is on the line, you 

can get at it like that; and because in cases where it is not on the 

line, you go through the standard legal process. 

So the analogy from tradition, to which you have rightly referred, 

that is actually what we are building on in our recommendation. 

Senator SESSIONS. My time is up. Thank you. General Mukasey, 

former Attorney General Mukasey, a federal judge for 20 years, 

does not agree—he thinks that will impact adversely, the mechanism of the system—in a recent op-ed. 

Thank you. 

Senator BLUMENTHAL [presiding]. Thank you, Senator Sessions. 

Senator Coons. 

Senator COONS. Thank you, Senator Blumenthal, and I would 

like to thank the entire panel for your service to our Nation, for 

your testimony here today, and for your hard work to make sure 

that we really focus on and get right some of these tough questions. 

Just to follow up on the exchange that just happened, if you 

might, Professor Swire, how did the Review Group’s suggestions 

surrounding the Section 215 authority address the constitutional 

concerns that were raised by Judge Lee? And if you could just focus 

us on the outcomes. 

Mr. SWIRE. Thank you, Senator. Our task that we were asked to 

do was not focused on Constitutional analysis. Our task was on 

what policy should be going forward. So as a group, we did not try 

to make an assessment on the constitutional issue. 

Senator COONS. But in your view, do the group’s recommendations actually address some of those concerns or fail to address 

them? 

Mr. SWIRE. Well, we tried to do the task we were assigned. I 

think that as Professor Stone was just saying, there is discussion 

in the report about how metadata looks given changing technology. 

And so in the 1970s, there were a limited number of phone calls. 

Today the number of texts and Facebook posts and everything is 

enormously different, and that kind of difference is the kind of difference that five Justices of the Supreme Court referred to in the 

Jones case. 

So we asked for a study, among other things, on these metadata 

issues because we think that the changing facts require some 

changing law, probably, but we do not say on the Constitution 

what our view is. 

Senator COONS. Mr. Morell, if I might, the Review Group recommends replacing the Privacy and Civil Liberties Oversight 

Board with a new Civil Liberties Protection Board, and this new 
32 

board would be empowered to review the privacy implications of all 

counterterrorism and foreign intelligence collections and have a 

new function to respond to whistleblowers and have new investigatory roles. 

The current PCLOB is, I would suggest, absurdly underresourced 

relative to its scope of responsibility. The President’s budget request includes only, I think it was, $3.1 million for the PCLOB. I 

may be wrong on that. Authorities without resources can be worse 

than no authorities at all because they provide a false sense of security. 

I would be interested in your view of what budget would be sufficient to allow this new board to perform its mission. 

Mr. MORELL. So I do not have a specific answer for you. That is 

not something we looked at. But it would be significantly more resources, in my view, than it currently receives today. 

Senator COONS. Well, the intelligence community Inspector General, just to continue the examination, ostensibly exists within the 

IC to ensure legal compliance. It recently told us that it lacks the 

resources to conduct a thorough and full review of the 215 

metadata program by the end of next year, so I think that reinforces the point that some significant increase in resources is needed to ensure the sort of oversight and accountability that I think 

all of us are working together to ensure. 

Mr. Clarke, if I might, declassified FISC opinions have revealed 

that the NSA in the past exceeded Court-established bounds of the 

Section 215 bulk metadata collection program routinely and attempted to defend those actions in front of the Court. I think it is 

widely agreed now that this was a violation. Some of us would allege a serious one. My concern is that the NSA initially tried to defend its use of non-approved selectors, and I would be interested 

in your view about why the NSA attempted to defend its illegal actions as legal and what reforms are necessary to encourage the IC 

to come clean and admit its mistakes in cases like this. 

Mr. CLARKE. Senator, I think there was a good-faith lack of understanding and lack of communication between NSA and the 

Court. I do not think there was any intentional attempt to circumvent the Court, but I think we had a bunch of engineers and 

computer scientists at NSA talking to a bunch of lawyers at the 

Court, and I think there was a lack of understanding about what 

each side was saying. 

I believe as soon as the NSA learned of the Court’s objections, 

they rectified the problem. So I think what this points to, these incidents point to, is the need for the Court to have more technical 

staff and resources. Just as the PCLOB, as you mentioned, is 

grossly underresourced, so is the Court. 

Senator COONS. Are there any other elements of your recommendations that would deal with this cultural mismatch, at 

least as you have suggested you have got engineers and lawyers, 

anything about adding an advocate to—adding a more adversarial 

component to the deliberative process, would that also strengthen 

the Court’s capabilities and oversight? 

Mr. CLARKE. I think there are four or five recommendations that 

do that. One is a public advocate in the Court. Another is strengthening the technical ability of the Court staff. A third is creating, 
33 

in the new civil liberties commission, a technology assessment 

staff. 

Senator COONS. The review, if I might, Mr. Clarke—my last 

question—looks at two authorities, Section 702 and Section 215, 

and these are both sections about which there has been a lot of 

public debate and discussion. But the Review Group also recommends greater government disclosure about these and other surveillance authorities it possesses. But the report, appropriately and 

understandably, does not itself disclose any additional programs. 

What review, if any, did the group make of undisclosed programs? 

Or could you at least comment about whether lessons learned from 

such review is, in fact, reflected in the report? 

Mr. CLARKE. Well, I think there is a great deal of metadata collected by the National Security Letter program, and we do speak 

to that in the recommendations. But there is also a great deal of 

communications-related information collected under Executive 

Order 12333. Public attention is focused on 215, but 215 produces 

a small percentage of the overall data that is collected. 

Senator COONS. Thank you. Thank you to the whole panel for 

your testimony. I see I am past my time. 

Senator BLUMENTHAL. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you, Mr. Chairman. I first want to 

note for the record that two of the witnesses were my law professors. Professor Stone taught evidence, and Professor Sunstein was 

my administrative law professor, and they both were fans of the 

Socratic method, so this is my revenge. 

[Laughter.] 

Senator KLOBUCHAR. Okay. So I first wanted to start with some 

of the recommendations here, and one of the most prominent recommendations of the Review Group was the U.S. Government 

should no longer hold the metadata, but data should be held by either the companies or a third party. I remember that General Alexander said he was open to this idea back in July, and I guess, 

starting with you, Mr. Clarke, do you think that this would lead 

to greater security, or do you think there could be more of a possibility of it being hacked? And then I guess I would ask the professors, do you think then the companies will be insisting on protections for liability? 

Mr. CLARKE. Well, Senator, thankfully, I was not your professor. 

I note that there has been a very significant information compromise at NSA, well over a million documents stolen. So even 

NSA can have its information stolen. It is not just Target and other 

commercial entities. 

Senator KLOBUCHAR. Thank you for bringing up my home town 

company. 

Mr. CLARKE. Sorry about that. 

Senator KLOBUCHAR. That is all right. 

Mr. CLARKE. I am unaware of people’s phone records going into 

the public record when they were stolen from phone companies. 

They are there now. We are not suggesting something new. The 

phone companies have the data. We are really suggesting that they 

keep it rather than the government. 

If, rather than leave them at the phone companies, we went a 

third-party route, yes, you are absolutely right. The security of 
34 

those records would have to be paramount, and I believe that security can be achieved from hackers. We spend a whole chapter in 

the report talking about how to do that. It is just that most people 

do not do it. 

Senator KLOBUCHAR. Okay. How about the liability issue? 

Mr. CLARKE. Liability, I think, is a matter of your providing safe 

harbor by legislation. 

Senator KLOBUCHAR. Okay. One other recommendation was to 

create, which has, I know, been discussed before I got here, the 

public interest advocate at the Court to provide for a more adversarial process, to provide for someone to ensure that privacy and 

civil liberty interests were represented. Approximately what proportion of the cases should be substantively argued by a public interest advocate on privacy and liberty grounds? Do you see it as 

happening in every case or a percentage of the cases? 

Mr. SUNSTEIN. Approximately small. The reason I say approximately small is that the overwhelming majority of the cases do not 

involve novel or difficult issues of law and policy. So, one thing we 

are focused on is the possibility that the public interest advocate 

would not have as many hours of engagement as a standard lawyer 

does just because a lot of the cases are routine. 

We do not have an exact percentage, but where the issues of law 

or policy are novel, then there is a keen importance to making sure 

it is an adversary proceeding. 

Senator KLOBUCHAR. Yes, I thought this was a good recommendation. Yesterday the Committee did receive a letter from 

Judge Bates, the Director of the Administrative Office of the U.S. 

Courts and a former presiding judge on FISC, in which he raised 

some significant questions about proposed reforms, including adding a standing special advocate to the Court, and recommended instead that the Court be allowed to appoint an advocate on a caseby-case basis. Does this make sense to you? I do not know if you 

want to—— 

Mr. SUNSTEIN. We admire Judge Bates and respect his views. We 

respectfully disagree with that one on the grounds that the judge 

sometimes is not in the ideal position to know whether a particular 

view needs representation, and that in our tradition standardly the 

judge does not decide whether one or another view gets a lawyer. 

And this is an unusual context, admittedly, but if there is a privacy 

or civil liberties concern, it is good to have someone who is specially 

authorized to take account of that concern in deciding whether to 

participate. 

Senator KLOBUCHAR. That makes sense. The public revelation of 

the surveillance programs, particularly those targeting foreign 

leaders, has generated a strong outcry from some of our allies, including Germany and Brazil. And the Review Group recommended 

that the U.S. intelligence community limit surveillance focused on 

foreign leaders to instances where there is a clear need and that 

such intelligence requirements be subject to senior policymaker review. 

I guess, first of all, I would ask—I think, Mr. Morell, would this 

be your area? In your view, did the surveillance of Prime Minister 

Merkel meet the standards that you are suggesting here? 
35 

Mr. MORELL. Ma’am, I cannot confirm or deny the surveillance 

of any particular foreign leader. I would say that I think it is absolutely important that policymakers make decisions about collection 

at that level, and that has not been the case heretofore. 

Senator KLOBUCHAR. And the Review Group also recommended 

extending the protections of the Privacy Act of 1974 to foreign citizens. Is there a precedent for the U.S. Government or any other 

government to extend privacy protections to foreign citizens in its 

conduct of intelligence collection? 

Mr. SWIRE. Thank you, Senator. On the Privacy Act, the Department of Homeland Security for several years has had a policy that 

we say should be adopted more broadly, which isI when there is 

a mixed system of records and there are U.S. and non-U.S. people 

in that, then the non-U.S. people would have access to those 

records as well. So we are building on the precedent from Homeland Security. 

Senator KLOBUCHAR. Okay. Very good. Anyone want to add anything more? 

[No response.] 

Senator KLOBUCHAR. All right. Thank you. 

Senator BLUMENTHAL. Thank you, Senator Klobuchar. 

Senator Durbin. 

Senator DURBIN. Thanks, Senator Blumenthal, and thank you 

all. 

I regret that Osama bin Laden brings us to the airport about an 

hour earlier than we used to go, and I regret that Edward Snowden 

brings us together today. But I think we have to acknowledge the 

obvious. There is a public question now about privacy and whether 

the government is going too far. It is a question many of us contemplated in the past, but could never discuss openly. Now that 

this is a matter of public record, we have this hearing, as we 

should, to try to restore the confidence of the American people. 

Several of you are authors, and I have read your works on a lot 

of different issues. But the issue before us today is one where the 

word is not even found in the Constitution—‘‘privacy’’—and what 

we can come to expect and what the Court might view as going too 

far, any court might view as going too far, and whether the court 

of public opinion would view as going too far. 

When you consider the incredible advancement in telephone technology, smart mobile phones, the ubiquitous use of the Internet, is 

it time to revisit whether Smith v. Maryland is in line with the expectations of the American people about privacy? In a world that 

we live in where phone booths are viewed as some quaint anachronism and people stand up in the middle of a crowded place and 

broadcast their telephone conversations to everybody within earshot, where we know that commercial invasion of our personal privacy is taking place almost constantly, and the accumulation of information by our government is only a fraction of what the commercial sector is gathering about us every single day in every move 

we make, take a step back and get to altitude here and tell me 

what you think the issue of privacy looks like. 

Mr. SUNSTEIN. Senator, from the 100,000-foot level, we do believe 

that in the current technological environment, if people use the 

Internet or the telephone or banks, it is right, certainly as a matter 
36 

of public policy, to protect their privacy and to focus on striking the 

right balance between national security needs and the needs of government to get access to information that can protect us against 

those who would do us harm. 

So we were not asked to investigate the Constitutional issue as 

if we were judges, but we were alert to your concerns, very much 

so, in offering our recommendations. 

Senator DURBIN. And is it not a fact that if I could obtain anyone’s phone logs of the actual phone numbers they called and know 

the names of the persons they called, I could probably draw some 

inference about them, their lives, maybe their intentions? 

Mr. SUNSTEIN. Unquestionably. So metadata is not the same as 

content, but it is something that people are understandably skeptical of the idea that others get access to, especially the government, for exactly the reason you give. 

Senator DURBIN. And if we let the telephone companies retain 

possession of this data and go after it as needed, what kind of obstacle does that create in going after bad guys, Boston bombers, 

where we might come up with a telephone number and need to 

know pretty quickly whether this is isolated or part of an international effort? 

Mr. SUNSTEIN. If there is a need, either because something bad 

has happened in the recent past or because there are reasonable 

grounds to believe it is going to happen in the near or pretty near 

future, then if time is of the essence, there is no need to go to 

court. So we would design our recommendation and the legislation 

that would respond to the recommendation in a way that acknowledges that sometimes you have to move very fast. 

Senator DURBIN. Senator Coons raised this question—I am sure 

it has been raised earlier before I came—about adding some balance to the FISA Court so that there is at least something akin to 

an adversarial proceeding or at least both sides of the issue are 

being heard. What do you feel, based on the work that you have 

done, is the most credible way to establish that? 

Mr. SWIRE. Thank you, Senator. I will just say a couple things 

that are in our report. 

One thing is that trying to think about who those people are institutionally is something that I think deserves some public attention. The people who would be advocates would have to have a 

clearance because they would have to be working in the FISA 

Court. You would want them to have some continuity over time so 

that the last case is known to them enough so that the next case 

makes sense. And it might not be a full-time job because it is only 

occasionally that the big minimization cases happen. 

Senator DURBIN. Who would they work for? 

Mr. SWIRE. Well, and so we suggest some ideas that have not 

been as much discussed in the public before that. One idea would 

be to put it at the PCLOB, the Privacy Board or whatever you call 

it going forward, because they have a lot of other jobs to do and 

they have lawyers. Another possibility is to put it out for bid so 

that some law firm or public interest group would have three or 

five years where they are doing it. They have a day job, but when 

it is important to do it, they are there to do it. 
37 

The concern is if you just sort of pop in and out, you would not 

have the technological and other context to do it well, and if you 

sit there full time, you have nothing to do for weeks at a time, possibly. 

Senator DURBIN. We have this quaint concept of an Inspector 

General in departments, working at the department but not for the 

department, literally charged with taking a look from an outside 

point of view, and most of them emerge with some credibility because of this relationship. Is that something that we could build 

on? 

Mr. SWIRE. Historically, my understanding is the IGs have not 

had a legal function, that putting a legal office in the IG would 

be—you are saying it—but my understanding is that they have had 

fraud, waste, and abuse but not being the best lawyers you can get. 

If you want the best lawyers you can get for privacy and civil liberties arguing with the Court and with the very great lawyers in 

the Department of Justice, thinking about how to staff that so you 

will have really good people available, and they probably need 

something else to do the days of the week when they are not doing 

this because it is not that many cases. 

Senator DURBIN. I might just close by saying two things. 

First, the pending appropriations bill, the omnibus bill, contains 

some provisions which I have added that will finally make public, 

as much as can be made public, a lot of specific data about what 

has been collected, why it has been collected, and what the result 

of the collections has been. It has been an issue that has been important to me for a long time, and it is going to be part of the bipartisan bill. 

And, finally, I support what Senator Blumenthal is trying to do 

to make sure these FISA Courts are more balanced in the appointees. Not to take anything away from the current process, but 

I think if there were more diversity in the selection, there would 

be more confidence in the outcome. I think his legislation is a good 

move. 

Thank you. 

Senator BLUMENTHAL. Thank you, Senator Durbin. 

Just to pursue Senator Durbin’s point about how to house the 

special advocate or constitutional advocate or public advocate, I 

think the key question that he asked is: Who does she or he work 

for? Who is the client? And my concept in advancing it originally 

was always that the client is the individual or group whose constitutional rights may be imperiled. In other words, it really is the 

Constitution. And the appearance, again, we talked earlier about 

appearance and perception being important. Housing is important 

from a perception standpoint. If the public defenders in federal 

courts—and I dealt with a lot of them as a U.S. Attorney—were 

housed in the prosecutor’s office, clients coming to be defended 

would have a totally different perception, even though it might actually save money to put them in the prosecutor’s office. 

So I think there is a very important analogy here, and that in 

the federal system we have federal public defenders who are fulltime, they are not ad hoc, although for a long time people were represented by—and still are in State courts—people sort of hauled 

into the process to do their duty with minimal pay while juggling 
38 

other duties, and sometimes not clear that they had the experience 

to handle a particular case. And that is why I have advocated a 

full-time, institutionalized, separate office that is independent, as 

independent as possible, because perception is so important. And I 

want to thank you all for giving thought to the excellent kind of 

questions that Senator Durbin and Senator Coons and Senator 

Klobuchar have raised. 

One last point, again, to pursue Senator Durbin’s question. 

Smith v. Maryland is about as outdated as I think any Supreme 

Court could possibly be, given that it was dealing with a different 

system of information gathering at a different time, not only with 

payphones but literally the wires, the mechanism, the infrastructure was so different. And I think the elephant in the room here 

is really the Supreme Court. Many of our colleagues have said, 

well, we ought to wait for the Supreme Court. But we all know 

that the Supreme Court is not necessarily an absolutely clear and 

non-controversial source of law. And we have an equal responsibility, the Congress under the United States Constitution has an 

equal responsibility to protect the Constitution, indeed to define 

the Constitution. And that is why your work, I think, has been 

very, very important, because you have really, as I mentioned earlier, not only given us some guidance but also great credibility to 

the direction that I believe and hope the President will go. 

So if there are other comments, we are going to hold this record 

open for one week. Senator Sessions has asked me to place in the 

record a Wall Street Journal opinion article by former Attorney 

General Mukasey. It is entitled, ‘‘The Era of Unreality in NSA Reform.’’ 

[The article appears as a submission for the record.] 

Senator BLUMENTHAL. And we will hold this record open for a 

week, and thank you all, gentlemen. 

[Whereupon, at 4:55 p.m., the Committee was adjourned.] 
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A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. PATRICK LEAHY
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42 

PREPARED STATEMENT OF HON. DIANNE FEINSTEIN
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44 
45 
46 

QUESTIONS

QUESTIONS SUBMITTED BY SENATOR CHUCK GRASSLEY FOR THE PRESIDENT’S REVIEW

GROUP MEMBERS
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48 
49 

ANSWERS

RESPONSES OF THE PRESIDENT’S REVIEW GROUP MEMBERS TO QUESTIONS SUBMITTED

BY SENATOR CHUCK GRASSLEY
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51 
52 
53 
54 
55 
56 
57 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
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ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 

previously printed by an agency of the Federal Government, or 

other criteria determined by the Committee, list: 

Report of the President’s Review Group on Intelligence and Communication Technologies: 

http://www.whitehouse.gov/sites/default/files/docs/2013-12- 

12_rg_final_report.pdf 

New America Foundation: ‘‘Do NSA’s Bulk Surveillance Programs Stop Terrorists?’’ by Peter Bergen, David Sterman, Emily 

Schneider, and Bailey Cahall: 

http://www.newamerica.net/sites/newamerica.net/files/ 

policydocs/Bergen_NAF_NSA%20Surveillance_1_0_0.pdf 

Center for Security Policy, Occasional Paper Series: ‘‘A Critique 

of the Recommendations by the President’s Review Group on Intelligence and Communication Technologies’’: 

http://www.centerforsecuritypolicy.org/wp-content/uploads/ 

2014/01/NSA_report.pdf 

‘‘Comments on the Judiciary on Proposals Regarding the Foreign 

Intelligence Surveillance Act’’ by John D. Bates, Director of the Administrative Office of the United States Courts: 

http://www.lawfareblog.com/wp-content/uploads/2014/01- 

10-2014-Enclosure-re-FISA.pdf 

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