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S. HRG. 109–1055 

FISA FOR THE 21ST CENTURY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

JULY 26, 2006 

Serial No. J–109–101 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 293 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3 

prepared statement .......................................................................................... 296 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 

WITNESSES 

Alexander, Lt. General Keith B., Director, National Security Agency, Chief 

of the Central Security Service, Washington, D.C. ........................................... 11 

Bradbury, Steven G., Acting Assistant Attorney General, Office of Legal 

Counsel, U.S. Department of Justice, Washington, D.C. .................................. 12 

Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver, 

Colorado ................................................................................................................ 38 

Dempsey, James X. Policy Director, Center for Democracy and Technology, 

Washington, D.C. ................................................................................................. 40 

DeRosa, Mary B., Senior Fellow, Center for Strategic and International Studies, Technology and Public Policy Program, Washington, D.C. ........................ 44 

Hayden, General Michael V., Director, Central Intelligence Agency, Office 

of the Director of National Intelligence, Langley, Virginia .............................. 6 

Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago, Illinois ... 41 

QUESTIONS AND ANSWERS 

Responses of Lt. General Keith B. Alexander to questions submitted by Senators Specter, Schumer, Feinstein, Kennedy, Durbin and Feingold ................ 50 

Responses of Steven G. Bradbury to questions submitted by Senators Specter, 

Leahy, Kennedy, Feinstein, Feingold, Schumer and Durbin ........................... 84 

Questions submitted by Senator Specter to Bryan Cunningham were not 

received by the time of print. .............................................................................. 146 

Responses of James X. Dempsey to questions submitted by Senators Specter, 

Feinstein and Kennedy ........................................................................................ 147 

Questions submitted by Senator Specter, Senator Feinstein and Senator Kennedy to Mary B. DeRosa were not received by the time of print. .................... 156 

Responses of Michael V. Hayden to questions submitted by Senator Specter, 

Schumer, Feinstein, Leahy, Kennedy and Durbin ............................................ 162 

Responses of John Schmidt to questions submitted by Senators Specter and 

Kennedy ................................................................................................................ 182 

SUBMISSIONS FOR THE RECORD 

Alexander, Lt. General Keith B., Director, National Security Agency, Chief 

of the Central Security Service, Washington, D.C., statement ........................ 188 

American Civil Liberties Union, Caroline Fredrickson, Director, Washington 

Legislative Office, and Lisa Graves, Senior Counsel for Legislative Strategy, 

Washington, D.C., letter ...................................................................................... 194 

Bradbury, Steven G., Acting Assistant Attorney General, Office of Legal 

Counsel, U.S. Department of Justice, Washington, D.C., statement ............... 201 

Constitutional Law Scholars and former Government Officials, letter ............... 208 

Cunningham, H. Bryan, Principal, Morgan & Cunningham LLC, Denver, 

Colorado, statement and attachment ................................................................. 218 

Dempsey, James X. Policy Director, Center for Democracy and Technology, 

Washington, D.C., statement .............................................................................. 265 

Page

IV 

DeRosa, Mary B., Senior Fellow, Center for Strategic and International Studies, Technology and Public Policy Program, Washington, D.C., statement ..... 278 

Hayden, General Michael V., Director, Central Intelligence Agency, Office 

of the Director of National Intelligence, Langley, Virginia, statement ........... 287 

Los Angeles Times, July 16, 2006, article ............................................................. 299 

New York Times: 

June 15, 2006, article ....................................................................................... 301 

July 16, 2006, article ........................................................................................ 303 

Patriots to Restore Checks and Balances, Washington, D.C., letter ................... 306 

Schmidt, John, Partner, Mayer, Brown, Rowe & Maw LLP, Chicago, Illinois, 

statement .............................................................................................................. 308 

Washingtonpost.com: 

July 15, 2006, article ........................................................................................ 314 

July 26, 2006, article ........................................................................................ 316 

Washington Post, July 16, 2006, article ................................................................ 317 

(1) 

FISA FOR THE 21ST CENTURY 

WEDNESDAY, JULY 26, 2006 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:05 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, DeWine, Cornyn, Leahy, Kennedy, 

Feinstein, Feingold, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed with our hearing on the proposed legislation which would submit the surveillance program for 

constitutional review to the Foreign Intelligence Surveillance 

Court. 

Wiretapping has been going on in the United States involving 

U.S. citizens some 41⁄2 years without having the traditional judicial 

approval. Since it was publicly disclosed in mid-December, the Judiciary Committee has held five hearings and has considered a variety of proposed bills leading to the legislation which we have before us today, which has been meticulously negotiated and has the 

agreement of the President to refer the surveillance program to the 

FISA Court if the legislation is approved. There may be modifications, subject to the agreement of the President. The Foreign Intelligence Surveillance Court is well suited to handle this review because of its expertise in the field and because of its secrecy, the 

White House insists that there not be public disclosures. 

Moving to the substance of the bill, I first want to take up two 

items where critics do not face reality on these two major points: 

First, there is a contention that the bill is defective because it 

does not retain the Foreign Intelligence Surveillance Court as the 

exclusive place to determine wiretapping. The reality is that since 

the President has put his program into effect, the Foreign Intelligence Surveillance Act, administered by the Foreign Intelligence 

Surveillance Court, is, in fact, not the exclusive remedy. The President claims that he has inherent Article II power to conduct the 

wiretapping aside from the Court. Three appellate courts appear to 

agree with that, but it depends upon what the program is. The constitutional requirements are that there has to be a balancing of the 

value to security contrasted with the intrusion into privacy, and 

that can only be determined by judicial review. And in a context 

2 

where the President is demonstrably unwilling to have the program subjected to public view, it would have to be determined by 

the FISA Court if it is to be ruled on constitutionally at all. 

The second point where the critics are objecting which I submit 

does not face the reality is the contention that the proposed legislation expands the Article II power of the President of the United 

States. A statute cannot do that. The Constitution is supreme. If 

the President has the constitutional authority under Article II, that 

supercedes the statute, and a new statute may not add to nor diminish the President’s constitutional power. 

The legislation has received a considerable amount of commentary, a considerable amount of critical commentary. And, candidly, I welcome the dialog because I am personally convinced that 

when the legislation is fully understood and faced with the reality 

of this surveillance going on, unchecked constitutionally in the absence of any better way to do it, when this legislation is fully understood with those factors, there will be acceptance. 

The commentary today in one of the major papers says that the 

legislation adds a provision: ‘‘Nothing in this Act shall be construed 

to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.’’ Well, this bill does not add that. That provision is in the current Foreign Intelligence Surveillance Act, and it is there because 

it deals with embassies, foreign embassies, foreign residences of 

people in the United States representing foreign governments. And 

there has never been a requirement that there would have to be 

court approval to have wiretapping in that situation. 

The commentary today says that the bill explicitly acknowledges 

an alternative source of power. Well, the bill does not. Article II 

power is what it is. 

Now, I would have preferred to have had some other provisions, 

candidly. I would like to have had the program mandatory so that 

the President would have to submit it to the FISA Court. But I 

could understand the President’s refusal to do that in light of his 

being unwilling to bind future Presidents and make an institutional change in the powers the President has. But my goal is to 

solve the current problem. The President has made a firm commitment to me, later confirmed by his White House personnel publicly, 

a firm commitment—may the record show that Mr. Steven 

Bradbury, who negotiated for the President, is nodding in the affirmative—made a firm commitment to submit the program to the 

FISA Court. 

Now, I would like to have a mandate, but this President is not 

going to give a mandate and yield to that kind of legislative authority. And even the statute did provide a mandate, if a future President challenged it under Article II powers, Article II powers are 

what they are, and the statute could not bind a future President. 

It really seems to boil down, to me, in many quarters that if the 

President agrees with it, there must be something wrong with it. 

There is a widespread sense that there is something amiss with 

Presidential agreement. Well, this legislation was negotiated in a 

way that I characterize as ‘‘fierce.’’ When we come to Mr. Steven 

Bradbury, the Acting Assistant Attorney General for the Office of 

Legal Counsel, we will get into some of the details on that. 

3 

In light of the President’s commitment, I think it is fair to say 

that this legislation is a breakthrough. Today’s commentary refers 

to other bills which are pending, some by members of the Intelligence Committee who know the details of the program. Well, none 

of the bills does what this bill does. None of the bills reaches judicial review of the program. 

We have had two recent decisions by United States district 

courts. Last week, the chief judge of the district court in San Francisco, Judge Walker, made a determination that a suit, Hepting v. 

AT&T, would go forward. But a close reading of that 72-page opinion shows it goes forward under very limited ways. And Judge 

Walker has put so many hurdles on state secrets that it is highly 

doubtful that that case will last much longer. Yesterday, a Federal 

judge in Chicago hearing Terkel v. AT&T, dismissed the case on 

grounds of state secrets. And when you read those cases, the obstacles are enormous. 

If there is a sense to modify the provision in the legislation 

which gives exclusive jurisdiction to the FISA Court, that can be 

done. We would not have the President’s commitment, but the 

President talked about making modifications subject to his approval. 

There are a number of changes which modernize the FISA Court 

which we will get into. I have talked longer than I customarily do, 

but I have done so because of the complexity of this issue and what 

at least I think is the lack of understanding of the legislation and 

its applicability. 

We started a little early today because the Prime Minister of 

Iraq is scheduled to address a joint session at 11, and we may lose 

members by that time, and we also have a vote scheduled at 10. 

I am pleased now to yield to the distinguished Ranking Member, 

Senator Leahy. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman, and thank you for 

convening this hearing. I am especially delighted to welcome General Hayden to his first appearance before this Committee since he 

assumed his new duties. I spoke with the General yesterday and 

told him how pleased I was to see the level of professionalism that 

he has brought to the agency and the appointments he has made. 

‘‘Independence’’ and ‘‘competence’’ were the two watchwords that 

led me to believe that he would serve well as the Director of the 

CIA, and I said so at the time I voted for his confirmation. Again, 

we need some straight talk today in navigating this very difficult 

issue. 

There are two sets of issues relating to the Foreign Intelligence 

Surveillance Act that are now before this Committee. First, what 

is the extent of the administration’s warrantless wiretapping in 

violation of FISA, and how should we in Congress react? After 7 

months and four hearings, we remain largely in the dark about 

what the administration is doing and continues to do because the 

administration has stonewalled this Committee’s bipartisan efforts 

at oversight. But the answer is clear: We must demand and we 

4 

must ensure that this administration, and the next administration 

which will follow in 21⁄2 years, actually follows the law. 

Second, does the FISA law itself need to be revised? It has been 

amended six times at this administration’s request in the 5 years 

since 9/11. But even though we have done that six times at the administration’s request, they now say it needs ‘‘modernization.’’ That 

modernization is the focus of today’s hearing. The Democratic 

members of this Committee asked for such a hearing, and I compliment the Chairman on having it. 

But the issues of compliance and modernization are completely 

separate issues. Whether or not FISA is in need of fine-tuning is 

a legitimate consideration, but FISA’s possible imperfections provide no excuse for the administration’s flouting of existing law. By 

the same token, the Bush-Cheney administration’s outrageous disregard for existing law does not mean that we in Congress should 

shirk our responsibility to improve the law if there is a need to. 

So I am ready to consider Section 9 on its merits. But I have serious grounds for skepticism. 

If Section 9’s provisions are, as claimed, needed to bring FISA 

up-to-date with the 21st century, why haven’t we heard about them 

before now? As I said, we have amended it six times at the administration’s request. In July 2002, former Attorney General Ashcroft 

testified that the 2001 PATRIOT Act had ‘‘modernized our surveillance tools to keep pace with technological changes.’’ In March of 

this year, in the reauthorization of the PATRIOT Act, we made all 

the amendments of FISA that the administration requested. In 

fact, the President then took credit for updating the law. 

So if FISA as amended is too ‘‘quaint’’ to meet the challenges of 

the 21st century, the Bush-Cheney administration owes the Congress and the American people an explanation for why they did not 

speak up before now. 

Now, to the extent I have been able to figure out the highly complex language of Section 9, it seems to me to permit vast new 

amounts of warrantless surveillance of telephone calls involving 

American citizens. It would appear to authorize unrestricted, unregulated Government surveillance of American citizens talking to 

relatives, colleagues, and trading partners overseas, without any 

showing that that is necessary to protect our National security. But 

to the extent that the administration’s witnesses can explain to us 

today, in practical and concrete terms, why these make sense, I 

will listen. 

But let me turn to the rest of the bill. It has been called a compromise. But this Vermonter does not believe that we should ever 

compromise on requiring the Executive to submit to the rule of law, 

no matter who is President. And I am sad to say that I see the bill 

less as a compromise and more as a concession. It would abandon 

our oversight role and confine oversight to a single judge on a secret court, whose decision on the one program the Bush-Cheney administration has agreed to submit for review is appealable only by 

the Bush-Cheney administration. And even that oversight would 

not be required by the bill itself. 

Now, I know the Chairman got the best deal he could. The President, the Vice President, and their legions can be hardheaded rather than flexible bargainers. I make these observations respectfully, 

5 

but also to express my reluctance to compromise FISA and the 

minimal protections—the minimal protections—it provides for 

Americans. 

Section 8 would repeal FISA’s exclusivity provision and affirmatively embrace the President’s claim of sweeping inherent authority. The result is to make FISA optional. The President can use it 

or not use it, at his option. 

It is astounding that we are considering this proposal. FISA was 

never intended to give Presidents choices. It was enacted to prevent abuses of Executive power and protect Americans’ liberties by 

prohibiting the Government from spying on its citizens without 

court approval. The Bush-Cheney administration has chosen to 

simply ignore it. I am wondering now are we going to reward its 

flouting of the law by saying, in effect, ‘‘Oh, please excuse us for 

passing that law. We didn’t mean to. We didn’t expect you to follow 

it. We will never do that again.’’ That is like arresting a burglar 

with three bags of cash and saying, ‘‘Leave one bag here, and we 

will all be OK with that.’’ 

Defenders of the bill have argued that Section 8 is ‘‘meaningless’’ 

because the President has whatever constitutional authority the 

Constitution says, and Congress cannot limit that authority 

through legislation. If the best we can say on behalf of proposed 

legislation is that it is a waste of ink, but then we should not be 

enacting it. But I do not believe that, when it goes to the secret 

FISA Court, the administration will adhere to the position that 

Section 8 is meaningless. The administration is insisting on that 

for a reason. 

As the Supreme Court recently explained in its Hamdan decision, the constitutional scope of Presidential power depends on the 

legislation that Congress has enacted, even in times of war. The 

Constitution grants Congress the express power to set rules for the 

military and the express power ‘‘To make all laws which shall be 

necessary and proper for carrying into execution’’ all the powers 

vested by the Constitution in the Federal Government, including 

those of the President. 

In the absence of Congressional action, the President may well 

have some measure of unilateral authority. That is what the precedents the administration always cites suggest. But once Congress 

acts, as it did in FISA, the President is no longer free to do whatever he wants to do. As the Court said in Hamdan, ‘‘Whether or 

not the President has independent power, absent Congressional authorization,’’ Congress, of course, may place limitations on those 

powers. 

That was the whole point of FISA: to limit the President’s power 

to spy on ordinary Americans by making FISA the sole means by 

which foreign intelligence wiretaps may be conducted in the United 

States. Waiving FISA’s exclusivity provision would not be meaningless. It would completely gut FISA. It would give the President a 

blank check to carry out warrantless wiretapping whenever he 

chooses or whenever the next President chooses. I could not in good 

conscience acquiesce in such a sweeping signing away of Americans’ liberties in any circumstances. I am certainly not going to do 

it at the behest of an administration that has continuously broken 

the law. 

6 

Thank you, Mr. Chairman. I will put my full statement in the 

record. 

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

Chairman SPECTER. Thank you, Senator Leahy. 

Would any other members like to make an opening statement? 

[No response.] 

Chairman SPECTER. Well, then, we will turn to our first witness, 

the distinguished Director of the Central Intelligence Agency, General Michael Hayden. 

General Hayden comes to this position with a very distinguished 

record. He received his bachelor’s degree from Duquesne University 

in 1967; master’s, also from Duquesne, in Modern American History. We have not only an intelligence officer but a Renaissance 

man with us here today. Extensive course work in the Armed 

Forces Staff College, the Air War College, Defense Intelligence 

School. He has had ranking positions which we will include in the 

record. He has had many awards, honors, which we will include in 

the record. And one we will know specifically is that he is a Pennsylvanian, from Pittsburgh. That is too important just to be included in the record. 

General Hayden. Thank you, Senator. 

Chairman SPECTER. We are honored, General Hayden, that you 

would testify before this Committee on your first occasion since becoming Director of the Central Intelligence Agency, and we look 

forward to your testimony. 

STATEMENT OF GENERAL MICHAEL V. HAYDEN, DIRECTOR, 

CENTRAL INTELLIGENCE AGENCY, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, LANGLEY, VIRGINIA 

General HAYDEN. Thank you, Mr. Chairman, Senator Leahy. 

Thanks for the opportunity to speak before your Committee today. 

The work that you and we have before us is truly important: How 

do we best balance our security and our liberty and continue the 

pursuit of valuable foreign intelligence? Let me congratulate the 

Committee for taking on the task of examining and, where appropriate, amending the Foreign Intelligence Surveillance Act. 

This task of balancing security and liberty is one that those of 

us in the intelligence community take very seriously and, frankly, 

it is one to which we turn our attention every day. 

If I can be permitted one anecdote, within days of the 9/11 attacks, I actually addressed the NSA work force. At the time I was 

the Director of that Agency. It was a short video. I was talking to 

an empty room, but the video was beamed to our work force 

throughout Fort Meade and globally. And most of what I said was 

what you would normally expect at a moment like that. I tried to 

inspire. It was important. The Nation was relying on us. I tried to 

comfort. Look on the bright side: a quarter billion Americans 

wished they had your job today. And I ended the talk by trying to 

give some perspective. I said all free peoples have had to balance 

the demands of liberty with the demands of security. And, historically, we Americans had planted our flag well down that spectrum 

toward liberty. And so I ended my talk by simply saying here was 

7 

our challenge: ‘‘We at NSA were going to keep America free,’’ I 

said, ‘‘by making Americans feel safe again.’’ 

Now, that was not an easy challenge. The Joint Inquiry Commission, which I think most of you know was comprised of the House 

and Senate Intelligence Committees, would later summarize our 

shortcomings in the months and years leading up to the September 

11th attacks. The Commission, sometimes harshly, criticized our 

ability to link things happening in the United States with things 

that were happening elsewhere. 

Let me just quote from some of the JIC’s, the Joint Inquiry Commission’s Systemic Findings, and here I am quoting. 

‘‘. . . NSA’s cautious approach to any collection of intelligence relating to activities in the United States.’’ 

Again quoting, ‘‘There were also gaps in NSA’s coverage of foreign communications, and the FBI’s coverage of domestic communications.’’ 

And, again, ‘‘. . . NSA did not want to be perceived as targeting 

individuals in the United States.’’ 

And, finally—and here the Commission was talking about one 

end U.S. conversations. By that I mean conversations in which one 

of the communicants was in the United States of America. The 

Commission said, ‘‘. . . there was insufficient focus on what many 

would have thought was among the most critically important kinds 

of terrorist related communications, at least in terms of protecting 

the homeland.’’ 

Now, for NSA the challenge was very acute. NSA intercepts communications, and it does so for only one purpose: to protect America, to protect the lives, the liberties, and the well-being of the citizens of the United States from those who would do us harm. By 

the late 1990s, that had become increasingly difficult. The explosion of modern communications in terms of volume, variety, and 

velocity threatened to overwhelm us as an agency. 

The September 11th attacks exposed an even more critical and 

fundamental fault line. The laws of the United States do, and 

should, distinguish between the information space that is America 

and the rest of the planet. 

The laws of the United States do, and should, distinguish between the information space that is America and the rest of the 

planet. 

But modern telecommunications do not so cleanly respect that 

geographic distinction. All of us exist on a unitary, integrated, global telecommunications grid in which geography is an increasingly 

irrelevant factor. What does ‘‘place’’ mean when one is traversing 

the Internet? There are no area codes on the World Wide Web. 

And if modern telecommunications muted the distinctions of geography, our enemy seemed to want to end the distinction altogether. After all, he killed 3,000 of our countrymen from within the 

homeland. 

In terms of both technology and the character of our enemy, ‘‘in’’ 

America and ‘‘of’’ America were no longer synonymous. 

I testified about this challenge in open session to the House Intel 

Committee in April of 2000. At the time I used a metaphor, an example, and I created some looks of disbelief when I said that if 

Osama bin Laden crossed the bridge from Niagara Falls, Ontario, 

8 

to Niagara Falls, New York, there were provisions of U.S. law that 

would kick in and offer him some protections and would actually 

affect how NSA could now cover him. Now, at the time that was 

just a stark hypothetical. Seventeen months later, after the attacks, that was the reality we were facing. 

The legal regime under which NSA is operating, the Foreign Intelligence Surveillance Act, had been crafted to protect American 

liberty and American security. 

But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And, frankly, I do not 

think anyone could make the claim that the FISA statute was designed to deal with a 9/11 or to deal with a legal enemy who likely 

already had armed combatants inside the United States. 

Because of the wording of the statute, the Government looks to 

four factors in assessing whether or not a court order is required 

before NSA can lawfully intercept a communication—and, again, 

you will not find these articulated as such in the statute. But the 

impact of the statute is that we look to four things so that we can 

decide whether or not a court order is needed before NSA does 

what it does routinely, and those factors are: who is the target, 

where is the target, how do we intercept the communication, and 

where do we intercept the communication. And, frankly, Mr. Chairman, the bill before the Committee today effectively re-examines 

the relevance of each of those factors and examines the criteria we 

now want to use going forward to use each of them. Let me just 

talk about each of them for a moment. 

Who is the target? 

The FISA regime from 1978 onward focused on specific court orders, against individual targets, individually justified and individually documented. That was well suited to a stable, foreign entity 

on which we wanted to focus for extended periods of time for foreign intelligence purposes. It is not as well suited to provide the 

agility to detect and prevent attacks against the homeland. 

Looked at another way, FISA’s careful, individualized processes 

exact little cost when our goal is long-term surveillance and exhausting intelligence coverage against a known and recognizable 

agent of a foreign power. The costs are different when our objective 

is to detect and prevent attacks. The costs are different when we 

are in hot pursuit of communications entering or leaving the 

United States involving someone we believe to be associated with 

al Qaeda. 

Now, in this regard, extending the period for emergency FISAs 

to 7 days and allowing the Attorney General to delegate his authority to grant emergency orders is very welcome and I believe very 

appropriate. 

So, first of all, who is the target? 

Second, where is the target? 

As I said earlier, geography is becoming less relevant. In the age 

of the Internet and a global communications grid that routes communications by the cheapest available bandwidth available each 

nanosecond, should our statutes presume that all communications 

that touch America be equally protected? 

9 

As the Chairman noted earlier this week, we do not limit our liberties by exempting from FISA’s jurisdiction communications between two persons overseas that happen to get routed through U.S. 

facilities. 

Frankly, I think our limited resources should focus on protecting 

U.S. persons, not those entities who might get covered as a result 

of technological changes that have extended the impact and then 

the protection of FISA far beyond what its drafters could ever have 

intended. 

I know that Senator DeWine among others has been concerned 

about the allocations of these resources and FISA backlogs. And, 

frankly, now as Director of CIA, who must provide the predicate for 

FISA orders, I share his concerns in allocating resources and hope 

the legislation will help us properly focus resources on protecting 

the legitimate privacy rights of U.S. persons. 

Now, beyond who and where is the target, there is the question 

of how do we intercept the communication. 

For reasons that seemed sound at the time of enactment, the current statute under which we operate makes a distinction between 

collection ‘‘on a wire’’ and collections out of the air. Now, when the 

law was passed, almost all local calls were on a wire and almost 

all long-haul communications were in the air. Now, in an age of cell 

phones and fiber-optic cables, that is totally reversed—with powerful and unintended consequences for how NSA can lawfully acquire 

a signal. Legislators in 1978 should not have been expected to predict the future of global telecommunications, and neither should 

you. My view is that the statute we develop should be technology 

neutral. 

And then, finally, beyond how do we intercept the communication, there is a question of where. Where do we intercept it? 

A single communication can transit the world even if the communicants are only a few miles apart. That happens routinely. And in 

that transit, NSA may have multiple opportunities to intercept it 

as it moves and as it changes medium. As long as a communication 

is otherwise lawfully targeted, I believe we should be indifferent to 

where the intercept is achieved. Signals intelligence is a difficult 

art and science, particularly in today’s telecommunications universe. Intercept of a particular communication—one that would 

help protect the homeland, for example—is always probabilistic. It 

is never deterministic. No coverage is guaranteed. We simply need 

to be able to use all the technology tools we have. 

In that light, as I said earlier, there are no communications more 

important to the safety of the homeland than those affiliated with 

al Qaeda with one end of the communication in the United States. 

And so why should our laws make it more difficult to target the 

al Qaeda communications that are most important to us—those entering or leaving this country. 

Because of the nature of global telecommunications, we are playing with a tremendous home field advantage, and we need to exploit that edge. We also need to protect that edge, and we need to 

protect those who provide it to us. The proposed legislative language that requires compulsory compliance from carriers is a very 

important step in this regard. 

10 

After 9/11, patriotic Americans from all walks of life assisted us, 

the intelligence community, in ensuring that we would not have 

another attack on our soil. Even prior to 9/11, we received critical 

assistance across the intelligence community from private entities. 

As Director of NSA, as Deputy DNI, now as Director of CIA, I understand that Government cannot do everything. At times, we need 

assistance from outside Government. 

Whatever legal differences and debates may occur about separation of powers, Article II, and other critical and very important 

issues, those people who help to protect America should not suffer 

as a part of this debate. I would urge the Committee to recognize 

the importance of those efforts of these Americans and provide appropriate protections. 

One final and very important point. Many of the steps contained 

in the proposed legislation will address the issue raised by the Congressional Joint Inquiry Commission: back again, one end U.S. conversations, communications that that Commission characterized as, 

again quoting, ‘‘among the most critically important kinds of terrorist related communications . . . .’’ 

That means my friend here, General Alexander, and his agency, 

NSA, will bump up against information to, from, or about U.S. persons. Let me stress that NSA already routinely deals with this 

challenge and knows how to handle it while protecting U.S. privacy. I was very happy to note that the draft bill contains quite a 

bit of language about minimization and minimization procedures. 

Minimization is the process that NSA uses to protect U.S. privacy, 

to protect U.S. identities. The same rules of minimization that NSA 

now uses globally, rules that are approved by the Attorney General 

and thoroughly briefed to Congress, will be used under any activities that are authorized by the pending legislation. 

Let me close by saying that we have a great opportunity here. 

We can meet the original intent of the FISA Act to protect our liberty and our security by making the legislation relevant to both the 

technologies and the enemies we face. 

Thank you very much, and I know my colleagues have opening 

statements, but after them, I would be very happy to take questions. 

[The prepared statement of General Hayden appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, General Hayden. 

We now turn to Lt. General Alexander, who is now the Director 

of the National Security Agency. His bachelor’s degree is from West 

Point; master of science in business administration from Boston 

University; master’s degree in physics from the Naval Postgraduate 

School; another master’s degree in national security strategy; has 

had a distinguished array of assignments and awards, and they 

will all be made a part of the record. 

We appreciate your service, General Alexander. We appreciate 

your coming in today, and the floor is yours. 

11 

STATEMENT OF LT. GENERAL KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY, CHIEF OF THE CENTRAL SECURITY SERVICE, WASHINGTON, D.C. 

General ALEXANDER. Thank you, Mr. Chairman. Good morning, 

Mr. Chairman, Senator Leahy, and members of the Committee. Sir, 

I have submitted a formal statement for the record. I will provide 

a brief summary of that statement at this time. 

Chairman SPECTER. Your full statement will be made a part of 

the record. 

General ALEXANDER. Thank you, sir. 

I am pleased to be here today to provide testimony in support of 

the National Security Surveillance Act of 2006, which would amend 

the Foreign Intelligence Surveillance Act of 1978. The changes proposed in the bill are, I believe, intended to recapture the original 

Congressional intent of the statute—ensuring the rights of the 

American people, our original Congressional intent, in providing for 

our Nation’s security. 

As General Hayden indicated in his remarks, this is an important conversation not only for the intelligence community that will 

be called on to abide by the statute, but for all the American people. Advances in technology have had some unanticipated consequences in how the National Security Agency carries out its duties. 

While some of the specifics that support my testimony and support passage of this bill cannot be discussed in open session, and 

while I would be happy to elaborate at any time, sir, the content 

of that, let me succinctly say that communications technology has 

evolved in the 28 years since the bill was established in 1978 and 

today in ways, as General Hayden says, that were unforeseen by 

the folks who built that bill. The stunning technological changes in 

the communications environment that we have witnessed since the 

enactment of FISA have brought within the scope of the statute 

communications that we believe the 1978 Congress did not intend 

to be covered. 

A tremendous communications infrastructure has emerged in the 

United States, and both our own citizens and foreign persons outside the country use its awesome capabilities. The drafters of the 

FISA did not and could not have expected to anticipate this. The 

result, though, as General Hayden’s testimony suggested, is that 

the U.S. Government is often required by the terms of the statute 

to obtain a court order to conduct surveillance of a target, of a foreign individual operating overseas but using that infrastructure. 

We believe the United States should be able to acquire communications of foreign intelligence targets overseas without a court order 

and that it ought not to matter whether we do so from the United 

States or elsewhere or how a particular communication makes its 

way from Point A to Point B. 

But because of the way the statute defines ‘‘electronic surveillance,’’ we frequently fail to make the most of one of the greatest 

advantages we have over our foreign adversaries: ready access to 

their communications present on a vast communications infrastructure located in our own Nation. 

12 

We believe that the FISA of the future must contain a few critical provisions if the Government is to be successful in gathering 

intelligence about its adversaries. 

First, the statute needs to be technology neutral. Determinations 

about whether a court order is required should be based on considerations about the target of the surveillance rather than the particular means of communication or the location from which the surveillance is being conducted. 

Second, we must retain a means to compel communications companies to provide properly authorized assistance to the Government, and we must insulate those companies from liability when 

they do so. 

Third, the statute’s definition of ‘‘agent of a foreign power’’ 

should be sufficiently broad to include visitors to the United States 

who may possess foreign intelligence information, even though they 

are not working on behalf of any foreign government. 

The Senate bill that we are looking at would effect the required 

changes. 

In closing, let me again express my thanks to the entire Committee for taking up this difficult but crucial issue—balancing the 

security of this country and the civil liberties of our people. And 

thank you for allowing those of us who will implement that balance 

the opportunity to participate in this hearing. 

[The prepared statement of General Alexander appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, General Alexander. 

We now turn to Steven Bradbury, Acting Assistant Attorney 

General, Office of Legal Counsel. He had been the Principal Deputy 

Assistant Attorney General in the same Department. Bachelor’s degree from Stanford; a law degree from Michigan magna cum laude; 

has had a distinguished career in private practice and was a law 

clerk to Judge Buckley of the D.C. Court of Appeals. 

At the outset, Mr. Bradbury, I want to publicly acknowledge your 

legal abilities and your courtesies in working through the drafting 

of the legislation which we are considering today, jointly with Michael O’Neill, the Chief Counsel and Staff Director of the Judiciary 

Committee. 

We are pleased to have you here today, and we look forward to 

your testimony. 

STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. BRADBURY. Thank you, Mr. Chairman. It has been a pleasure to work with you and Mr. O’Neill, and it is a pleasure to be 

back before the Committee today. 

Mr. Chairman, Senator Leahy, Senator Kennedy, members of the 

Committee, foreign intelligence surveillance is a critical tool in our 

common effort to prevent another catastrophic attack on the United 

States. The enemies we face operate in obscurity through secret 

cells that communicate globally while plotting to carry out surprise 

attacks from within our communities. We all recognize the fundamental challenge the war on terror presents to a free society: to detect and prevent the next 9/11, while steadfastly safeguarding the 

13 

liberties we cherish. Maintaining the constitutional balance between security and liberty must be the polestar in any legislative 

effort to reframe the FISA statute. 

The past 28 years since the enactment of FISA have seen perhaps the greatest transformation in modes of communications in 

the history of the world. 

Innovations in communications technology have fundamentally 

transformed how our enemies communicate and, therefore, how 

they plot and plan their next attacks. It is more than a little ironic 

that al Qaeda is so expert in exploiting the communications tools 

of the Internet age to advance extremist goals of intolerance and 

tyranny that are more suited to the 12th century than the 21st. 

Meanwhile, the United States confronts the threat of al Qaeda with 

a legal regime geared more toward traditional case-by-case investigations. 

The limitations of the traditional FISA process and the acute 

need to establish an early warning system to detect and prevent 

further al Qaeda attacks in the wake of 9/11 led the President to 

authorize the Terrorist Surveillance Program. As he has described, 

that program, which has been the subject of prior hearings before 

this Committee, involves the NSA’s monitoring of international 

communications into and out of the United States where there are 

reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist 

organization. 

This Committee is currently considering several pieces of legislation addressing FISA and the Terrorist Surveillance Program. I 

want to thank the Chairman again for his leadership on these 

issues and for his hard work in crafting a comprehensive approach 

that will help us fight terrorists more effectively and gather critical 

foreign intelligence more efficiently. I also wish to thank Senator 

DeWine, who has also introduced a bill, cosponsored by Senator 

Graham, which represents a very positive approach to the issues 

presented by the Terrorist Surveillance Program. The administration urges the Committee to approve both of these bills promptly, 

and we look forward to working with the Congress as a whole as 

this legislation moves ahead and with the Intel Committees, in particular, where technical changes can be appropriately discussed to 

ensure that FISA as amended will provide the Nation with the 

tools it needs to confront our adversaries. 

Fundamentally, Chairman Specter’s legislation recognizes that in 

times of national emergency and armed conflict involving an exigent terrorist threat, the President may need to act with agility 

and dispatch to protect the country by putting in place a program 

of surveillance targeted at the terrorists and designed to detect and 

prevent the next attack. 

At the same time, however, Chairman Specter’s legislation will 

provide an important new role for the judicial branch in the review 

of such Presidential programs, in addition to oversight by the Intelligence Committees of the Congress. His bill would add a new title 

to FISA under which the FISA Court, subject to certain requirements, would have jurisdiction to issue an order approving a program of terrorist surveillance authorized by the President. This legislation would create for the first time an innovative procedure 

14 

whereby the Attorney General will be able to bring such a surveillance program promptly to the FISA Court for a judicial determination that it is constitutional and reasonable, in compliance with the 

requirements of the Fourth Amendment. The FISA Court would 

also be authorized to review the particulars of the program and the 

minimization procedures in place, to help ensure that the surveillance is focused on the terrorist threat and that information collected about U.S. persons is properly minimized. The availability of 

these procedures and the ability of the FISA Court to issue an 

order approving a program of electronic surveillance will strongly 

encourage Presidents in the future to bring such programs under 

judicial supervision. 

As Chairman Specter has announced, in response to this proposal and the other positive innovations contained in the Chairman’s bill, the President has pledged to the Chairman that he will 

submit his Terrorist Surveillance Program to the FISA Court for 

approval, if the chairman’s legislation were enacted in its current 

form, or with further amendments sought by the administration. 

Chairman Specter’s legislation would also protect sensitive national security programs from the risk of disclosure and uneven 

treatment in the various district courts where litigation may be 

brought. Under his bill, the United States, acting through the Attorney General, could require that litigation matters putting in 

issue the legality of alleged communications intelligence activities 

of the United States be transferred to the FISA Court of Review, 

subject to the preservation of all litigation privileges. The Court of 

Review would have jurisdiction to make authoritative rulings as to 

standing and legality under procedures that would ensure protection of sensitive national security information and promote uniformity in the law. 

In addition to the innovations I have described, Chairman Specter’s legislation includes several important reforms to update FISA 

for the 21st century. These changes are designed to account for the 

fundamental changes in technology that have occurred since FISA’s 

enactment in 1978, and to make FISA more effective and more useful in addressing the foreign intelligence needs of the United States 

in protecting the Nation from the unique threats of international 

terrorism. 

Mr. Chairman, thank you for the opportunity to appear today to 

discuss this important issue. We look forward to working with Congress on this critical matter, and today we urge the Committee to 

give speedy approval to the bills introduced by Chairman Specter 

and Senator DeWine. 

Thank you. 

[The prepared statement of Mr. Bradbury appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Bradbury. 

After consultation with Senator Leahy, we are going to set the 

rounds at 7 minutes for members, and we will proceed to that now. 

General Alexander, there would be much more comfort by everyone, including myself, if we could have individualized warrants so 

that the FISA Court would function as it does now. An application 

is made. There is a showing of what the Government contends is 

probable cause, and there is an individualized determination on 

15 

granting the warrant. Now, it has been reported that the program 

in operation is so massive that that cannot be accommodated. 

If any of this requires going into closed session, gentlemen, we 

are prepared to do that. But to the extent you can comment publicly, I think there is great merit in it so that there is an understanding of the program to the maximum extent consistent with 

national security. 

So my question to you, General Alexander: would it be possible 

with additional resources to structure a program, to get what information you are getting here on an individualized basis? 

General ALEXANDER. Sir, let me answer that this way—and I 

would ask Steve to make sure I say it exactly correct. But as General Hayden, Steve, and I have laid out for you, if you take away 

the foreign portion of that, where the true bill asks us to get a warrant on a U.S. person in the United States, if you take out foreign, 

overseas, other targets that we are talking about, which your bill 

does do, you are now back to a manageable level. And getting a 

court order for everyone in the United States is doable and one 

that we think should be done in that regard, and it is in the statute. 

So the real issue is intermixed into the domestic is the foreign. 

Your bill separates that and makes it manageable. 

Chairman SPECTER. Well, let me focus the question more pointedly in light of what you just said. Is it possible to have individualized warrants where your focus is on a foreign speaker, but your 

invasion necessarily involves a citizen in the United States? Would 

it be practical to have individualized warrants and still carry out 

the program which you have now? 

General ALEXANDER. Well, there is the technology part of the 

thing that we each discussed briefly which would— 

Senator FEINSTEIN. Could you speak up, please? 

General ALEXANDER. Yes, ma’am. This is the part that we each 

discussed briefly in that if overseas we are collecting a foreign— 

going after a foreign target, no matter who that person is talking 

to, we are authorized under Executive order to collect that communications. That is the where. If we collect it here and it happens 

to go to a U.S. person, we have to stop and get a court order. 

So the predominant number of our targets are foreign targets, 

and the question is: If we make every foreign application, because 

we are using the infrastructure in the United States, an application that we have to do here in the United States, you have cut 

out the most important advantage that we have—our communications infrastructure. 

Chairman SPECTER. General Hayden, let me move to another 

question with you. You said that there has been some help, assistance, in not having another attack on our soil. One of the key factors is evaluating the intrusion on privacy. How valuable is the information which is obtained? Can you amplify in open session 

whether information obtained has prevented another attack? Or to 

what extent has that information been of significant value for national security in weighing the balancing act of invasion of privacy? 

General HAYDEN. Yes, sir, Senator. In open session I will have 

to speak in generalities, but I can say with great confidence in all 

three positions—CIA, DNI, and particularly NSA—in broad terms, 

16 

the support we get from the broader community of America in all 

of its shapes and forms has been absolutely invaluable in helping 

in this case NSA do its mission. 

Chairman SPECTER. Can you say whether it has ever prevented 

another attack? 

General HAYDEN. I can say that the program that we are talking 

about here, the Terrorist Surveillance Program, has been used to 

disrupt and degrade enemy activity, to break up cells. Can I claim 

that, you know, there was a sniper on the roof with a round in the 

chamber and we intercepted it at that point? No. But we have gotten information we would not otherwise have had, and it has enabled us to disrupt clear al Qaeda attempts to do harm inside the 

United States. 

Chairman SPECTER. General Hayden, moving to another issue, 

when you have the information going to the FISA Court with its 

secrecy provisions, contrast that with going, say, to a district court, 

say in San Francisco, with respect to the complexity of the issues, 

as to the explanation of the nature of the program—and I am open 

to having other courts besides the FISA Court consider the program. I am not concrete on that. In order to get the President’s signature to a modified bill, we have to have his agreement. But when 

we had the negotiations, we talked about changes to the bill. The 

President wants some improvements in the bill. They would have 

to be negotiated to his satisfaction. And in wrestling with this issue 

of consolidation in the FISA Court, we have done so because we 

know that the FISA Court has a background in the program, has 

an understanding of the national security risks, knows the details 

of the program. And we are considering whether it ought to be another court, so that is an advantage in having other judges and not 

necessarily having in a secret court. And we have to work through 

the question as to a public disclosure. When we had an opinion of 

the FISA appellate court, it was made public, and I think the decision of the FISA Court would reach the public one way or another. 

But contrast, if you will—and my red light is not quite on yet. 

Contrast, if you will, taking the cases to district court, like San 

Francisco, contrasted with the FISA Court. 

General HAYDEN. Mr. Chairman, I am personally delighted that 

these issues would be placed in front of a court that, No. 1, is most 

knowledgeable about this whole universe of activity and understands in actually, I think, very clear terms what NSA does as a 

matter of routine and understands the care with which the agency 

guards privacy and can make an accurate assessment of the issue 

that is placed in front of the Court. And I would then add that having it in front of a single court I think actually helps the cause of 

justice so that there is a unitary national view as to what constitutes the correct balance, the correct line, as Steve has mentioned earlier, between security and liberty. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

General Alexander, in my opening statement I mentioned that 

FISA has been amended six times in the last 5 years. Now, to my 

knowledge, the administration never in that time asked for any of 

the changes that are contained in Section 9 of the Chairman’s bill. 

To the contrary, the administration has repeatedly said that the 

17 

2001 PATRIOT Act updated and modernized FISA. And so if Section 9s provisions were so essential, why didn’t we hear about them 

before now? Why this sudden demand for an overhaul of FISA? 

General ALEXANDER. Sir, I don’t know the exact answer for why 

it was never brought forward, but I can tell you there was great 

concern about revealing to an adversary an advantage that we had 

by making public some of the things that we could do. That has 

happened in the press— 

Senator LEAHY. Well, let me follow that a little bit. I am told 

that this request originated at the NSA. Is that correct? 

General HAYDEN. Yes, sir. 

Senator LEAHY. So I would ask this of you, General Alexander, 

and then General Hayden. Earlier this year the administration 

said it did not ask Congress to authorize the so-called Terrorist 

Surveillance Program, according to what you started to say, because talking about it may tip off our enemy. Do you think our discussion today about possible amendments to FISA is doing that? 

General ALEXANDER. I do not believe the amendments that have 

gone in the past have gone to the extent that we are talking about 

in this change of this bill here. Specifically, we have never brought 

forward the specifics on the advantage that we have in our home 

communications, our U.S.— 

Senator LEAHY. Do you believe this discussion is tipping off our 

enemies in any way? 

General ALEXANDER. We have to be concerned, sir. Clearly, we 

do not want to give any advantage to our adversaries, and so the 

hesitancy is not just my own ignorance on this, but making sure 

that I do not say something that would— 

Senator LEAHY. General Hayden. 

General HAYDEN. Yes, sir. When the program began the Terrorist 

Surveillance Program, we at NSA felt we had two lawful approaches in which to conduct our operations against al Qaeda—one 

is outlined in the traditional FISA Act, one under the President’s 

authorization. We were quite happy to use both authorities, and we 

did. And in discussions as to whether or not we should move what 

had been authorized by the President under both his constitutional 

authorities and the administration’s reading of the AUMF, in the 

discussions of whether or not we should move that under the FISA 

Act, it really was a compelling concern as to how much of this could 

be discussed in open session. 

What has happened in the last 7 months is much of this program 

has already been put out into the public domain. That inoculates 

some of the discussion we are having today against some of the 

down sides. But, Senator, there will be questions, I am sure, you 

will ask any of the three of us that we will not be able to answer 

in open session. 

Senator LEAHY. Let me ask Mr. Bradbury, when Attorney General Gonzales testified last week, he agreed with Senator Specter 

that the language in his bill that repeals FISA’s exclusivity provision and recognizes the President’s inherent authority to collect foreign intelligence is essentially meaningless. To quote the Attorney 

General, ‘‘It does not change the status quo.’’ 

18 

If that is the case, can I assume you would have no objection to 

striking this language in the bill if all it does is state the status 

quo? Yes or no. 

Mr. BRADBURY. I am not able to answer that yes or no, Senator. 

I will say this: In our approach to these issues—and I think it is 

reflected in the legal analysis presented in our paper back in January on this program—it has always been our approach to endeavor 

to avoid a constitutional clash between the branches. And we think 

that is the way a court would address these issues. 

Senator LEAHY. But the Attorney General said—do you agree 

with the Attorney General when he says all this does is state the 

status quo? 

Mr. BRADBURY. Well, the status quo certainly is the case, Senator, that the President has authority under Article II— 

Senator LEAHY. Do you agree with the Attorney General? 

Mr. BRADBURY.—and the status quo is as the Court of Review— 

Senator LEAHY. But my question— 

Chairman SPECTER. Let him finish his answer. 

Senator LEAHY. But he is not answering my question. 

Chairman SPECTER. Well, let him answer. 

Senator LEAHY. Do you agree with the Attorney General? 

Mr. BRADBURY. I agree that as the Court of Review, the FISA 

Court of Review has stated that the FISA statute cannot take away 

the President’s constitutional authority. 

Senator LEAHY. OK. So I do not know whether you agree with 

the Attorney General or not. I will let you discuss it with him 

whether you agree with him or not. 

Suppose the Government wants to monitor a telephone conversation or e-mails coming into the United States from American soldiers who are serving in Iraq. Now, let’s stipulate it does not 

apply—it is not being done—this is for you, Mr. Bradbury. It is not 

being done for law enforcement purposes, so Title III does not 

apply. Now, under current law, if the Government acquires these 

communications off wires in the United States, it would need a 

warrant. What about under the new definition of ‘‘electronic surveillance’’ in the Chairman’s bill? Would the Government still need 

a warrant to intercept communications from our men and women 

in Iraq to their family members back at home? 

Mr. BRADBURY. If you are talking about a communication which 

is international and if you are not targeting a person in the United 

States to try to collect information about that person in the United 

States, it would not fall within the amended definition of ‘‘electronic surveillance.’’ 

Senator LEAHY. So you would not need a warrant to collect it. 

They are e-mailing to their parents, spouses, and what-not back 

home. You would not need a— 

Mr. BRADBURY. If you are attempting to collect information about 

persons in the United States, which you— 

Senator LEAHY. No, no. 

Mr. BRADBURY. It depends— 

Senator LEAHY. No, no. I left out—I said there is no law enforcement. It simply— 

Mr. BRADBURY. Well, it does not have to—Senator, it does not 

have to be law enforcement. Any effort to collect information about 

19 

persons in the United States would fall within the definition of 

‘‘electronic surveillance’’ if you are targeting those persons. So you 

really need to look at—and that is, I think, the fundamental point 

that the Generals have made, is what we believe the statute ought 

to focus on is who is it you are trying to collect information about 

and— 

Senator LEAHY. I made it very clear. I said that you have a soldier in Iraq—let’s make it even clearer. A soldier in Iraq is sending 

an e-mail to his wife. He is not of any interest to law enforcement. 

He is not suspected of doing any crime or anything else. Would you 

need a warrant to collect that e-mail or could you just pick it up 

and put it into your Government banks? 

Mr. BRADBURY. Well, I will say, Senator, that today under existing law, if you are collecting that internationally flowing communication anywhere else in the world, you can do that without any 

court approval. That is done today pursuant to Executive Order 

when it is done for national security purposes. 

Now, these agencies operate for national security purposes and 

not simply to eavesdrop on people’s private conversations when 

there is not any national security interest or foreign intelligence— 

Senator LEAHY. Would your message be, then, that somebody 

sending an e-mail to their spouse back here from Iraq, they probably better be pretty careful what they say, that it is going to be 

in a Government data base somewhere? 

Mr. BRADBURY. No, I would not because, as I have tried to just 

indicate, all of the authorities of these agencies, when they are operating today, Senator, under Executive Order—it is called Executive Order 12333, which we have existed under since the 1970s. 

The only collection that these agencies can do under that Executive 

Order is for foreign intelligence purposes. That is quite apart from 

any statutory requirements under FISA. So there is no listening in 

except for foreign intelligence purposes. And that is the fundamental point. It does not matter whose communication you are listening in to or where it is collected. It has to be for foreign intelligence purposes. 

Senator LEAHY. That does not answer the question, but I will go 

into it on my next round. 

Chairman SPECTER. The vote is under way. We are going to adjourn very briefly. Senator Cornyn and I are going to be very swift 

in moving over and back, and when we come back, we will pick up 

with Senator Cornyn. 

We stand in recess for just a few minutes. 

[Recess 10:10 a.m. to 10:27 a.m.] 

Chairman SPECTER. The Committee will resume. 

Senator Cornyn. 

Senator CORNYN. Well, thank you, Mr. Chairman, and I want to 

express my gratitude to the witnesses for being here today to talk 

about this important subject. I would hope that we could all start 

from a basic premise, and that is that we should use all legal 

means available to us to collect information from our enemies that 

would help us fight and win the global war on terror. I think that 

we would all agree with that. I am confident you would. Sometimes 

I wonder when I hear some of the public debate. 

20 

But I want to maybe start with you, Mr. Bradbury. Early on, 

when the New York Times broke the story about the Terrorist Surveillance Program, there were allegations that there had been a 

violation of the law, that this was unlawful. But as the Chairman 

pointed out, my recollection is there have been at least three courts 

that have expressly acknowledged the President’s inherent power 

under the Constitution to collect foreign intelligence during a time 

of war. Is my recollection correct? 

Mr. BRADBURY. That is correct, Senator. The Fourth Circuit, the 

Second Circuit, other circuits—in fact, more than three, and then, 

of course, the FISA Court of Review acknowledged that. 

Senator CORNYN. Well, that was going to be my next point. The 

very court that Congress created to oversee the decisions of the 

Foreign Intelligence Surveillance Court and the FISA Court of Review has acknowledged in a written opinion the President’s inherent authority under Article II to conduct, in essence, this battlefield 

intelligence gathering. Isn’t that right? 

Mr. BRADBURY. That is correct, Senator. 

Senator CORNYN. Are you aware of any court that has held the 

Terrorist Surveillance Program to be unlawful? 

Mr. BRADBURY. No, Senator. No court has reached that issue. 

Senator CORNYN. So the only courts that have spoken to it have 

held that this is a lawful exercise of the President’s authority 

under the Constitution. 

Mr. BRADBURY. The only decisions from courts are that the President generally has authority under Article II to protect the country 

through foreign intelligence surveillance. 

Senator CORNYN. Well, I would hope that—because I think I 

agree with your assessment. That is certainly my understanding. 

And I would hope that those who would try to scare people or make 

allegations of rampant sort of unlawful or rogue conduct would 

bring their rhetoric down a little bit because, in fact, the only decisions we do have from courts indicate that the President does have 

that authority under appropriate circumstances. 

I want to also ask General Hayden and General Alexander, there 

was some statement made earlier on in the hearing today that the 

capability that the NSA has been using, that the U.S. Government 

has been using, to intercept international communications between 

al Qaeda operatives and folks here in the United States who may 

be their allies, that this is somehow unchecked authority. But I 

just want to ask a little bit about that. 

It is my recollection that this program is reviewed every 45 days 

internally within the NSA and the administration. It is my recollection that it has been briefed to the FISA Court judges, if not all 

of them, at least the chief judge, and maybe some others, and if 

you can help me there. 

It has also been briefed since the inception to leaders on a bicameral and a bipartisan basis, the leaders of the House and the 

Senate, as well as the Chairmen and Ranking Members of both the 

House and Senate Intelligence Committees. Did I summarize that 

correctly? 

General HAYDEN. Yes, sir. That is correct, Senator. 

21 

Senator CORNYN. Well, to me that seems like it comes in some 

conflict with the idea that this authority is unchecked, and that is 

my conclusion. You do not have to agree or disagree. 

One reason I support Senator Specter’s bill is because it does acknowledge this authority, but it creates a way to try to accommodate the legitimate concerns that Members of Congress have and 

to make sure that Congress is a full partner in the process of striking the balance, General Hayden, that you talked about between 

privacy concerns and our ability to collect intelligence by all lawful 

means. 

Mr. Bradbury, I wonder, though, if you could tell me, do you view 

this bill to be a substantial change from the status quo? There was 

some question about that. Or is it a ratification, more or less, by 

Congress that the President has that authority and then create 

other procedures that are essentially consistent with what is already happening now? 

Mr. BRADBURY. Well, of course, Senator, as the Chairman made 

clear in his opening remarks, the status quo today is that the 

President has exercised his authority, both under the Constitution 

and his view of the Authorization for the Use of Military Force and 

has established a Terrorist Surveillance Program independent of 

FISA in an effort to try to detect communications that may be leading to another attack on the country. And so this legislation would 

recognize that existing fact, but it would make a very substantial 

change in FISA today by adding a new title that would give the 

Court jurisdiction to review such a program on a program-wide 

basis, and that is an important new tool that any President would 

have going forward. And it is because of that innovative new tool 

that would really allow for efficient judicial review of such a program in wartime, that the President would take the program then 

to the Court for its review. 

So I applaud, again, the Chairman for the legislation and for 

that effort, because I do think that is a very important—would be 

a very important change in the current statutes. 

Senator CORNYN. Well, thank you very much for that clarification, and I think you are certainly correct. 

I know, General Alexander, there was some question about 

whether the NSA was intercepting Internet communications between a soldier in Iraq and their family members at home. You are 

a soldier, are you not, sir? 

General ALEXANDER. Yes, sir. 

Senator CORNYN. And you certainly, I know, have an interest in 

not undermining the privacy rights of an American citizen serving 

his country and defending freedom in Iraq. Are you spending your 

time targeting American citizen soldiers in Iraq in your spare time? 

General ALEXANDER. No, sir, we are not, nor would we. If we do, 

we have procedures through the Attorney General overseas, if it is 

against a U.S. person, or a court order here in the United States. 

And both of those would be followed. 

I would tell you, I would be more concerned about other nations 

looking at our soldiers, which they do, and terrorists. And so the 

fact that we can do it, others can do it, too. And so the greatest 

concern is the Operation Security that goes along with the soldier 

communications, which they in Iraq know very well. And as you 

22 

know, sir, from the soldiers there, they treat OPSEC as very important to their own survival. 

General HAYDEN. Senator, could I just emphasize a point that 

General Alexander brought up? The procedures in place today, 

which will not be affected by the act before the Committee, is that 

in order to target a protected person, a U.S. person—and that definition goes beyond just citizens of the United States. In order to 

target a protected person overseas, it now requires, well, now General Alexander to make a case to the Attorney General that this 

is for foreign intelligence purposes and that the target of the activity is the agent of a foreign power. And that would not be changed 

by the legislation. 

Mr. BRADBURY. I am sorry. Just to emphasize that triply, what 

I mentioned before in response to the question from Senator Leahy 

is that there are authorities today under Executive Order to do foreign intelligence surveillance. But those authorities, if you are talking about targeting the communications of a U.S. person, like a 

U.S. soldier in Iraq, require both that it be for a foreign intelligence 

purpose and that the Attorney General expressly approve it. And 

that is under existing Executive Order. That would remain unchanged by this legislation. 

Senator CORNYN. Thank you. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Kennedy. 

Senator KENNEDY. Thank you very much, and I want to thank 

the panel, thank them for their service to the country, impressive 

backgrounds, experience and commitment. 

I was here when we did the FISA legislation. At that time, in 

1976, President Ford and Attorney General Levi, worked very 

closely with the Judiciary Committee, the President and the Attorney General, and we worked out the FISA. It was enormously complex and complicated at that time, and the range of intelligence 

challenges are like an echo that I hear this morning. Everyone understood that there was cutting-edge, there was new information, 

dangerous times. And, we were able to work out legislation that 

only had one vote in opposition to it in the U.S. Senate, and it has 

worked. 

Obviously, there are suggestions and recommendations that 

could be made, but it worked and it had the confidence of the 

American people and the confidence of Congress about the protections of rights and liberties and also in getting information. All of 

us are in the same boat in terms of al Qaeda and the dangers that 

threaten this country. But as you have all eloquently stated, there 

is the balance between security and also the liberties with which 

we have to deal. And that is what many of us had hoped, that we 

would be able to work within this balance and the administration 

would work with us. We can handle sensitive and secret information and establish a process that I think would have given the 

American people the confidence that all of us were working together, Republican and Democrat, the President and the Congress, 

in a bipartisan way to really get at the core dangers that we were 

facing in protecting liberties. And that is what I think continues as 

the challenge, and the fact that we are still working on this is just 

enormously important. 

23 

But that is the departure point, and there still continues to be 

frustration that we are unable to get to that point and do not have 

all of the information that we should have in order to legislate. The 

American Bar Association emphasizes the challenges that we are 

continuing to face under the circumstances. 

I am interested, in the time that I have, if you can just tell us— 

and we are very conscious of the facts that there is sensitive information on this. But can you tell us now the extent to which this 

is actually affecting Americans, Americans here at home? What we 

are talking about is to what extent are they included in this program? 

General HAYDEN. Senator, I will start since I was there when the 

program began. 

Senator KENNEDY. Okay. 

General HAYDEN. And I mean this very sincerely. Nothing more 

important to the people conducting this program than the privacy 

of Americans. 

Senator KENNEDY. Good. 

General HAYDEN. We understand— 

Senator FEINSTEIN. Could you speak up, please? 

General HAYDEN. Yes, ma’am. Nothing more important in the 

conduct of this program than the privacy of Americans. After the 

story broke in the New York Times, I went out to talk to the NSA 

workforce that is involved in this, and it struck me that on the 

walls of the office in which this activity is conducted, there was a 

large poster that said, ‘‘What constitutes a U.S. person? ’’ And the 

four different approaches by which one could gain the protection of 

a U.S. person were spelled out there, even in the bowels of the office that is responsible for this program. It is done very carefully. 

It is very targeted. There is a probable cause standard, before any 

communication is intercepted, that one or both communicants is, 

again, to a probable cause standard, associated with al Qaeda. 

So I know the sensitivities, Senator, and NSA is a powerful and 

a secretive organization. Those are the two things our political culture distrusts the most. But this is done with great care. 

Senator KENNEDY. Well, I understand that, and the standard 

then is a probable cause standard. Is that correct? 

General HAYDEN. That is correct. 

Senator KENNEDY. All right. But the question was: To the extent 

that Americans are included in this, can you tell us, or is that— 

what is the extent, what is the range? 

General HAYDEN. We have briefed the precise numbers to all 

members and some members of staff of both Intelligence Committees, Senator. 

Senator KENNEDY. But even in the range—if you can’t, you can’t. 

But, I mean, are we talking about 20,000? Are we talking 2 million? You can’t do— 

General HAYDEN. I am not able to. 

Senator KENNEDY. Can you tell us whether any of these are 

under continuing surveillance, that is, they go on for not only just 

a conversation but whether they are continuing, whether there are 

Americans that are subject to a continuing—this was an issue 

when we passed the FISA. Attorney General Levi spoke about this 

24 

issue and question in terms of the legality of it, and this is an area 

that obviously is of concern. Can you tell us? 

General ALEXANDER. Sir, if I can give you two things here in 

open session. The overwhelming focus in our collection is against 

the foreign entities by a tremendous margin, and everyone who has 

read into that is amazed when they see that. First and foremost, 

predominantly foreign. There are U.S. parts to that, and I cannot 

go into the details of the lengths of that. But it is all focused on 

the al Qaeda, and it is predominantly foreign. 

Go ahead, sir. 

General HAYDEN. I would just offer a point to make it very clear. 

The President has said a communication we believe to be affiliated 

with al Qaeda, associated with al Qaeda, one end of which is in the 

United States, and we believe at least one end we have a probable 

cause standard is al Qaeda. As General Alexander points out, overwhelmingly the end we believe to be affiliated with al Qaeda is a 

foreign end. 

Senator KENNEDY. All right. And so just about the question of 

continuing and ongoing versus a single conversation, the extent of 

that, General Alexander? 

General ALEXANDER. Sir, I am not sure I understand. 

Senator KENNEDY. One thing is where you are listening to a conversation. The other is where you have the wiretap continuing for 

24 hours a day. 

General ALEXANDER. Right. Sir, we go through a very deliberate 

process to listen in on any conversation, just because of the sheer 

resources, whether it is in this program or any other program. And 

so as we started out, we know it is one end foreign. You cannot 

physically listen to millions of phone calls, nor would we. We are 

going to focus it down onto the most important ones, and we have 

ways and methods to do that that we should not discuss here. 

Senator KENNEDY. All right. I am going to run out of time here, 

but let me ask you: Has any of the information that has been gathered to date in any of this been used in any legal proceedings here 

in a court or any trials to date? 

General HAYDEN. Senator, the process used is the process by 

which we use any foreign intelligence, and it moves outside of the 

intelligence community with all the appropriate caveats on it in 

terms of how it can be used in judicial procedures. 

Senator KENNEDY. But can you tell us whether it has or has not 

been used? 

General HAYDEN. I don’t know, Senator, again, because we put 

the caveats on it— 

General ALEXANDER. Lead and investigative— 

General HAYDEN. Lead and investigative purposes is what it 

says. 

Senator KENNEDY. My time is up, Mr. Chairman. Thank you. 

Chairman SPECTER. Thank you, Senator Kennedy. 

Senator Feinstein. 

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

thank you for the hearing. I would like to just say one thing, and 

that is, as a member of the Intelligence Committee, I have been 

briefed on the program. And I am strongly opposed to giving this 

President or any President the right to collect content—to collect 

25 

content on United States persons without a warrant. And today for 

the first time we heard General Alexander state that if the foreignto-foreign switching is taken care of, the program is easily 

accommodatable to an individual warrant for U.S. persons in content collection. Is that not correct, General? 

General ALEXANDER. Not quite, ma’am, if I might just state it in 

my words: that if the foreign selectors that we are going after, 

which some of those—it depends on where the target is, and this 

goes back to the definition of ‘‘electronic surveillance.’’ And so it is 

not necessary—if we are going after a terrorist in country A and 

he is talking to somebody in country B, we are authorized to go 

after that. If that same terrorist we are targeting happens to go 

into the United States, we are authorized to collect that overseas 

also and minimize the U.S. person’s data. 

The issue that I was describing is now, under the current FISA, 

if I collect that in the United States, I have to get a warrant for 

it. So what you would have us do is overseas I could do it and minimize it. Today I lost the advantage of being able to do that in the 

United States. If that portion of the targeting in the definition of 

this ‘‘electronic surveillance’’ we believe that is adjusted in this proposal that meets both of those and that that would then allow us 

to— 

Senator FEINSTEIN. And both ends are foreign to foreign? 

General ALEXANDER. Not necessarily. The target of the selector 

is foreign, and the question is where are they calling. 

Senator FEINSTEIN. Well, I know those numbers, too. 

General ALEXANDER. Right. 

Senator FEINSTEIN. And I do not think that those numbers are 

necessarily prohibitive from a FISA warrant, nor do I believe that 

it would take that much time for a FISA warrant. 

General ALEXANDER. But it would require us, ma’am, if I might, 

it would require us to get a FISA on every foreign one in advance 

because we do not know who they are calling until it has happened. 

Senator FEINSTEIN. Oh. 

Mr. BRADBURY. Senator, may I also just add a point, if I might? 

Senator FEINSTEIN. Certainly. 

Mr. BRADBURY. In the Chairman’s legislation, there would also 

be a number of other reforms to FISA which would greatly assist 

in the general ability to get FISAs even for domestic targets. For 

example, the FISA application process would be streamlined. The 

amount of information required for an application would be reduced. 

Senator FEINSTEIN. That was in my bill, too. 

Mr. BRADBURY. Yes, it was. 

Senator FEINSTEIN. I believe Senator Specter took it from my 

bill. 

Mr. BRADBURY. Absolutely. It is a good idea, and good ideas 

should be liberally— 

Senator FEINSTEIN. I just wanted to make that clear. 

Chairman SPECTER. I had thought that was our bill, the 

Feinstein-Specter bill. 

[Laughter.] 

Senator FEINSTEIN. I am delighted. Yes, it is our bill. 

26 

Mr. BRADBURY. In addition—and this may also be in your legislation, Madam Senator—the emergency authorization period would 

be extended from 3 days to 7 days. The ability to authorize it would 

be liberalized. And then perhaps most importantly, if the reforms 

are made to the definition of what is covered, to take out the international communications that are not really historically the primary focus of FISA, that, of course, by itself would free up a lot 

of resources in terms of the Office of Intelligence Policy and Review 

that makes the applications to FISA. 

So all of those combined would necessarily make it much easier 

to get quick approvals for those domestic targets of necessary intelligence surveillance. 

General HAYDEN. That is why I tried to craft my opening comments about those four criteria, and very frequently NSA is required to get FISAs not because of who is targeted, but because of 

one of those other three criteria. And what this legislation does is 

move the legal focus back to who are you targeting rather than 

these techniques or accidents of how you actually carry it out. 

Senator FEINSTEIN. Well, let me raise one other point. Senator 

Specter’s new FISA bill also eliminates the 15-day window on surveillance following a declaration of war. And this could be interpreted to mean that after a declaration of war, the President has 

unlimited wiretap authority until the end of the war. How long 

under this new Specter version would a President’s authority last? 

Could it last for decades? 

Mr. BRADBURY. Well, Madam Senator, the President’s authority 

to protect the country comes in large measure from his authority 

under Article II. Of course, with the Terrorist Surveillance Program, that has been in place now since shortly after 9/11. 

It is our view, as we tried to explain in— 

Senator FEINSTEIN. If you do not mind, let me just interrupt you. 

Mr. BRADBURY. Absolutely. 

Senator FEINSTEIN. Because it seems to me you are buying into— 

the administration is buying into a concept, and that is Senator 

Specter’s bill. Therefore, you are tacitly confining your Article II 

authority within the confines of the Specter bill, as I understand 

it. So I am asking you the question. One of the amendments made 

is to delete this 15-day period, which, therefore, once deleted, also 

has an interpretation that it is without end. 

Mr. BRADBURY. Well, there would be no express provision that 

says in time of war that the limitations of FISA do not apply. The 

current provision says if there were a declaration of war, none of 

the requirements or limitations in FISA would apply at all for 15 

days. Now, there have only been five declarations of war in the history of the country, and we have not even come close to one since 

FISA was enacted in 1978. 

It is our view of that provision today in the legislation that, in 

effect, it is a determination by Congress back in 1978, which was 

not a time of war, that in the event of armed conflict or declaration 

of war, the branches would come together and that there would be 

some accommodation made going forward during that wartime. 

It is not our view that it was a declaration by Congress that only 

15 days of warrantless surveillance in wartime is all you need. I 

don’t think that is what it was intended to mean. It was intended 

27 

to give some leeway, all the rules are off, and then during that period there would be some special accommodation made. It was really, in effect, a decision by Congress in the 1970s to punt the question of what would happen during an actual armed conflict. 

Senator FEINSTEIN. Mr. Chairman, would you allow me one other 

question? 

Chairman SPECTER. Yes. Proceed, Senator Feinstein. 

Senator FEINSTEIN. Perhaps, Mr. Bradbury, you are the one to 

ask this question of. Is it your contention that the FISA Court is 

an Article III court? 

Mr. BRADBURY. The judges are Article III judges, and, yes, they 

are serving in a special capacity for purposes of approving these orders. But, yes, they are Article III. 

Senator FEINSTEIN. And to what do you attribute that? Where is 

the justification for finding it an Article III court? 

Mr. BRADBURY. They are appointed for life with their compensation fixed, it cannot be reduced. They are Article III judges, and 

Congress by statute has given them a special assignment at the appointment of the Chief Justice. But that does not mean that they 

are not Article III judges. They act in their capacities as Article III 

judges, as does a court that approves, for example, a Title III warrant. 

Senator FEINSTEIN. Isn’t there a magistrate serving as a FISA 

Court judge? 

Mr. BRADBURY. I am not aware of that. There are 11 FISA Court 

judges. I believe—don’t hold me to this—that they are all district 

judges appointed by the Chief Justice. 

Senator FEINSTEIN. Well, I am a little puzzled, Mr. Chairman, on 

this one point, because there is nothing in the FISA law that gives 

this court the ability to make programmatic approvals as opposed 

to grant warrants, individual warrants. And how when a court 

gives an advisory approval to a program and the constitutionality 

of such I think is questionable. 

Mr. BRADBURY. Well, may I respond to that? 

Senator FEINSTEIN. Yes, please. 

Mr. BRADBURY. Interestingly enough, the FISA Court of Review 

in the In Re Sealed Case decision addressed the question of whether a FISA order under the current statute is a warrant or not. And 

the Court actually concluded that while it has a lot of characteristics of a warrant, the Court did not need to conclude or decide that 

it was a warrant, because foreign intelligence surveillance could be 

conducted before and after FISA as long as it is reasonable under 

the Fourth Amendment, and that the FISA procedures would ensure that any court order approving surveillance would ensure that 

that surveillance was reasonable under the Fourth Amendment. 

So it is not necessarily the case that a FISA order, even an individualized one, is a warrant for Fourth Amendment purposes. And 

the Fourth Amendment does not require a warrant in all circumstances. In special cases, there can be surveillance done, 

searches conducted without warrants, as long as they are reasonable, for example, in the area of foreign intelligence investigations 

and surveillance. 

Senator FEINSTEIN. Are you making the argument that a FISA 

Court order for content collection is not a warrant? 

28 

Mr. BRADBURY. Well, the FISA Court of Review concluded that 

it did not need to decide that it was a warrant for it to be constitutional. So it does not have to be viewed as a warrant, and I would 

say that you are right that today FISA does not contain any procedure that would allow the FISA Court to give a program-wide order 

of approval to surveillance. The new title that would be created by 

the Chairman’s bill would enable the Court to do that and would 

give the Court jurisdiction. 

But in terms of Article III and whether there is a case or controversy, I do not see a difference between the program-wide order 

and the individualized order. There would still be a case or controversy. It would be constitutional. The Attorney General as a result of that order could get an order from the Court that would 

compel cooperation to do what needs to be done to undertake the 

surveillance. And just as with a Title III warrant today, where the 

Government goes in ex parte to a district judge and gets approval 

for a Title III warrant, this is a similar construct. And it is similar 

to the FISA process today for FISA orders. 

There is the hypothetical person on the other side of the case— 

not hypothetical. But the people on the other side of the case are 

those people who would be under surveillance. That is the same in 

a Title III context or under FISA today. I really think it would 

function like FISA today. It would just be a program-wide order. 

Senator FEINSTEIN. Well, you have been more than generous 

with your largesse, Mr. Chairman. 

Chairman SPECTER. How much more time would you like, Senator Feinstein? 

Senator FEINSTEIN. Well, you see, I think this is kind of the crux 

of the matter, and— 

Chairman SPECTER. Senator Feinstein, proceed. 

Senator FEINSTEIN. If you would just allow me for a minute, essentially there are no holds in your bill on a President’s authority. 

Once there is this programmatic approval by the FISA Court, then 

individuals in this country can be wiretapped for content. And that 

wiretapping could go on forever. There is no duration. 

I would assume that others could be slipped into that program 

warrant, perhaps even without review. And what worries me is 

that once for content—meta data is something else, but for content, 

once you go to a programmatic approval, it opens the Pandora’s box 

of all kinds of games that can be played with that because there 

is no timely periodic review of everybody whose content is being 

collected under that programmatic review, no decisions made as to 

how long that data can be maintained, when a decision can be 

made that the content collection should be cut off. 

Mr. BRADBURY. Senator, that is not the case. Under the Chairman’s bill, all of those things would be addressed by the Court in 

its review. So, for example, strict requirements would have to be 

met before the Court would be able to entertain such an application, it would have to be directed at foreign terrorist threats. There 

would have to be a showing that you could not use traditional FISA 

process. There would have to be a showing that there is special 

need for agility and flexibility and that you cannot identify all of 

the targets in advance. Then there would have to be special miniVerDate Nov 24 2008 10:43 Apr 22, 2009 Jkt 043453 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43453.TXT SJUD1 PsN: CMORC
29 

mization procedures proposed and in place to protect any information about U.S. persons that might be caught up in the program. 

Then the Court would review it for reasonableness under the 

Fourth Amendment. The Fourth Amendment is not an open-ended 

blank check. The Fourth Amendment would not allow things to go 

on permanently, would not allow things to be general and not focused on the threat. All of those things would be taken into account 

and reviewed carefully by the Court. It could only be approved for 

90 days, and then the Court would review it. You would have to 

come back in, and in reviewing it and reauthorizing it, the Court 

is charged under the legislation to look at, well, what has the actual collection been? Has it been focused, as the Attorney General 

said it would be? Have the minimization procedures been followed? 

All of those things would be subject to careful judicial review by 

the FISA Court. 

Senator FEINSTEIN. All right. Knowing the numbers, foreign to 

foreign— 

Chairman SPECTER. Senator Feinstein, you are up to 8 minutes 

over, which is another round. 

Senator FEINSTEIN. I appreciate that. 

Chairman SPECTER. Why don’t you ask your last question? 

Senator FEINSTEIN. The last one. Knowing the numbers of the 

foreign to foreign, you are saying every one of them would be reviewed every 90 days? 

Mr. BRADBURY. Well, in the Terrorist Surveillance Program of 

the President, we are talking about international communications 

in and out of the United States. And under the Chairman’s proposal for this new program-wide order, it would be focused on surveillance where you are talking about communications to or from 

persons in the United States. So the foreign to foreign would not 

be the subject of such a program-wide order, but communication 

surveillance where there is a U.S.—or somebody in the United 

States is involved could be and would be the subject of such a program, and the Court would be free to ask, as the legislation makes 

clear, for any additional information the Court desires to review 

that program and to take a look at it very carefully and closely. So 

it would be up to the Court in making a judgment as to the reasonableness of the program, the targeted nature of it, et cetera. 

Senator FEINSTEIN. Thank you. I appreciate it very much. 

Thank you, Mr. Chairman. 

Mr. BRADBURY. Thank you, Senator. 

Chairman SPECTER. Thank you, Senator Feinstein. 

General Alexander, coming back to the question which I asked 

initially and you have expanded upon, would it be impractical or 

even impossible to have individualized warrants under the current 

surveillance program? You had responded in part that it would 

limit you when you were going after a foreign member, a foreign 

caller, someone who initiated the call abroad, not knowing whether 

it was going to be to a domestic location or not. Would you expand 

upon that? 

General ALEXANDER. Yes, sir, and I will take from the testimony 

that we started out with in that who and where are the key parts 

of this. Who is the target that we are going after? Is it a foreign 

terrorist in a country outside the United States? If the target is 

30 

outside the country making a call, then we should use every means 

possible—and I think everybody generally agrees with that—to go 

after that communication. The issue is if we conduct that in the 

United States and it happens to stop in the United States, in the 

United States we would need a warrant; outside the United States 

we could do it under Executive Order. So we have a problem. 

The issue then becomes do I get a court order for every foreign 

target that I have under the possibility that I could have collected 

it in the United States. That is what it does to us today. That is 

impractical. It would cause a tremendous burden on— 

Chairman SPECTER. Now, specifically, what is impractical? When 

you— 

General ALEXANDER. The volume— 

Chairman SPECTER. Wait a minute. 

General ALEXANDER. The volume of— 

Chairman SPECTER. Wait a minute. Let me ask the question so 

we have the framework. It is impossible or impractical to get an 

individualized warrant when the caller is outside the United 

States, not knowing whether the recipient will be inside the United 

States? 

General ALEXANDER. Yes, sir. It would be impractical. I am not 

saying it would be impossible, but it would be impractical because 

we don’t know what the foreign to U.S. number could possibly be. 

Would the requirement be, hypothetically, if that foreign number 

called all foreign numbers, you would say good to go. But if they 

called U.S. number 1, FISA. If he calls U.S. number 2, I have to 

get a new FISA. U.S. number 3, a new FISA. U.S. number 4, a new 

FISA. And what I am ending up doing is submitting for calls that 

have been happening, and what we would do is saturate— 

Chairman SPECTER. That is what you would have to do absent 

the surveillance program? 

General ALEXANDER. That is correct. 

Chairman SPECTER. But with the surveillance program, you do 

not have to do that. 

Now, you say impractical, but not impossible? 

General ALEXANDER. Well, you would not be effective. 

In my opinion, sir, from an operational— 

Chairman SPECTER. Why not effective? 

General ALEXANDER. Because you would be so far behind the target, if you were in hot pursuit, with the numbers of applications 

that you would have to make and the times to make those, you 

could never catch up to the— 

Chairman SPECTER. So your conclusion is that to have individual 

warrants, it would not be practical or effective in what you are 

seeking to accomplish? 

General ALEXANDER. That is correct. 

Chairman SPECTER. General Alexander, General Hayden, I think 

it would be useful if you supplemented your oral testimony in writing amplifying so you have an opportunity to present a fuller picture. We have had a pretty good dialog here. 

Senator FEINSTEIN. If I might say particularly on— 

Chairman SPECTER. Are you on your time, Senator Feinstein? 

Let me proceed, Senator Feinstein, and we will come back to you 

after Senator Leahy, if the next vote does not come sooner. 

31 

Mr. Bradbury, Senator Feinstein said that there are no holds and 

no limitations on what the President can do under my bill. But 

isn’t it a fact that what the President can do under my bill is what 

the President is doing now and that it is measured by whatever his 

Article II powers are? 

Mr. BRADBURY. Well, that is certainly correct. 

Chairman SPECTER. And isn’t the determination as to whether he 

has Article II powers to do what he is doing now a balancing test 

so that on this state of the record, this Committee, not knowing the 

details of the program, is not in the position to say that it is an 

exercise within Article II or is it beyond Article II? Is that true? 

Mr. BRADBURY. That is true, and I would add that the limitation 

and the real balancing test comes in through the Fourth Amendment, because whatever the President does is subject to the Fourth 

Amendment and— 

Chairman SPECTER. But we cannot determine that unless we 

know where the program is on the balancing test. Reasonableness, 

as you said earlier, depends on the threat and depends upon the 

invasion of privacy. 

Mr. BRADBURY. That is correct. 

Chairman SPECTER. And that requires a judicial determination. 

Mr. BRADBURY. Well, that is one very effective way to do it, and 

that is what your legislation would do. It would bring the Court in 

to make that determination. 

Chairman SPECTER. Is there any other way to obtain a judicial 

determination other than the FISA Court maintaining the secrecy 

that the President insists upon? 

Mr. BRADBURY. Well, I think that is a very good mechanism for 

doing that. Obviously, there are 30 or so pieces of litigation around 

the country that have challenged various versions of what has been 

alleged in the media. We do not think those disparate matters in 

litigation in various district courts around the country is an effective or appropriate way for any of these determinations to be made. 

Chairman SPECTER. Let me move to a series of questions with 

the minute I have left. Isn’t it true as a practical matter de facto 

that the Foreign Intelligence Surveillance Act is not now the sole 

means of wiretapping in the United States where you have one 

party in the United States and one party out of the United States? 

Mr. BRADBURY. That is correct. The President’s program is outside of FISA. 

Chairman SPECTER. So FISA is not the exclusive way. And isn’t 

it also true that no statute, including the one I have proposed, can 

expand or contract the President’s Article II powers? 

Mr. BRADBURY. Well, I would say that statutes can reasonably 

regulate exercises of the President’s constitutional authority. But 

where we see a real issue—and it is a very significant constitutional issue, and that is what the FISA Court of Review is talking 

about—is an effort to try to eliminate it or snuff it out. And that 

is where you get a real direct clash between the branches, and that 

is what we have always endeavored to avoid throughout this discussion. And I think your legislation recognizes that we all want 

to avoid that situation. 

Chairman SPECTER. With Senator Leahy’s acquiescence, I am 

going to pursue this just a bit further. When you talk about reasonVerDate Nov 24 2008 10:43 Apr 22, 2009 Jkt 043453 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43453.TXT SJUD1 PsN: CMORC
32 

ably regulate, you come to Justice Jackson’s famous concurrence in 

the steel seizure case. He said that when the President exercises 

his constitutional power, plus a grant of authority from the Congress under Article I, then his power is at a maximum because he 

has two powers, Article II and Article I. 

Mr. BRADBURY. That is correct. 

Chairman SPECTER. When he exercises Article II power alone, it 

is at the medium point, where he faces a situation where Congress 

has denied him certain authority, as where FISA is in existence, 

then he relies solely on his Article II power. But isn’t that Article 

II power, whatever it is, as determined by the balancing test on the 

invasion of privacy versus the national security interest involved? 

Mr. BRADBURY. That is right. 

Chairman SPECTER. A final question. This provision in the bill 

has been cited repeatedly as a negative comment: ‘‘Nothing in this 

Act shall be construed to limit the constitutional authority of the 

President to collect intelligence with respect to foreign powers and 

agents of foreign powers.’’ 

Now, the best illustration of that is a wiretap of a foreign embassy. Isn’t it true that that line was in the FISA Act of 1978? 

Mr. BRADBURY. It was. I believe, Mr. Chairman, it was amended 

to take it out at a later point, and this legislation would reinstate 

it in the bill. But I think the important point is that the FISA 

Court of Review in its decision says essentially just exactly that. 

And this is simply a recognition or affirmation of what the FISA 

Court of Review has said. 

In pointing to the embassy provision, you are exactly right that 

that is an example where FISA today recognizes and allows for the 

Executive Branch to take action without a court order to undertake 

foreign intelligence surveillance. And that is an authority that exists today and that is recognized in the FISA statute. 

Chairman SPECTER. So, in totality, Article II power is what it is 

and it cannot be added to or subtracted by legislation since the 

Constitution supersedes legislation. 

Mr. BRADBURY. The legislation does not change Article II authority. It can add Congress’ authority, as Justice Jackson indicated in 

his concurrence, or it can attempt to leave the Article II authority 

as it is, or it can attempt to take away from it whatever authority 

Congress would otherwise provide, and— 

Chairman SPECTER. But Congress does not have any authority 

by statute to change the Constitution. 

Mr. BRADBURY. That is correct. 

Chairman SPECTER. Including Article II. 

Mr. BRADBURY. That is correct. 

Chairman SPECTER. Senator Leahy, you have at least 10 minutes, or longer. 

Senator LEAHY. Thank you. Of course, we do not amend the statute by—we do not amend the Constitution by statute, but as 

Youngstown pointed out, there are many areas where the President’s Article II powers are circumscribed by statute. Is that not 

correct? 

Mr. BRADBURY. Yes. In the exercise of those authorities, but not 

where those authorities— 

33 

Senator LEAHY. Thank you. I was glad to get a simple declaratory judgment—simple declaratory answer from someone from the 

Justice Department. It has been years. I compliment you, Mr. 

Bradbury. I compliment you. You will probably get fired for doing 

that, but I compliment you for doing it. 

But the language that Senator Specter quoted was actually never 

enacted as part of FISA. It was struck from the conference in 1978, 

as I recall. But there are areas where we can—the Congress under 

Article I can determine the actions of the President under Article 

II, and then the President, of course, has—in his oath of office, he 

says that he will faithfully execute the laws of the United States. 

Now, of course, if he does not like the laws, he can always veto 

them. 

General Alexander, let’s go back to the Terrorist Surveillance 

Program because we may have been discussing two things in your 

answers to the earlier questions. Let’s say that under this program 

you establish probable cause that a particular individual you are 

monitoring is a terrorist and that individual is within the boundaries of the United States. At that point do you go to FISA for a 

warrant? 

General ALEXANDER. Not necessarily, sir. It may be. It may be. 

It would definitely go to one or the other intel agencies as soon as 

that is. Our objective would be NSA would not proceed at that 

point. We would pass it to either the FBI— 

Senator LEAHY. If you are going to continue—you have got somebody in the United States. You have established probable cause, 

and this is putting aside for the moment whether the original program is actually authorized in the law or not. But let us assume 

you have got probable cause that somebody in Middlesex, Vermont, 

is a terrorist. I know all the people in Middlesex, Vermont. I do not 

think there are any. 

General ALEXANDER. It would not happen, sir. 

Senator LEAHY. But let’s say you do. At that point do you have 

to go to the FISA Court for a warrant if you are going to continue 

monitoring that person, that individual? 

General ALEXANDER. Actually, the procedure— 

Senator LEAHY. Does somebody have to go to the FISA Court? 

General ALEXANDER. Somebody, potentially, but not necessarily. 

And the question really gets to where are we in the process of 

knowing that that is a terrorist. If we know for sure that is a terrorist, it has gone to the FBI, the FBI would take that probably to 

a FISA and start their own procedures with the lead and investigative information that we gave them. 

Generally, you do not have a clear-cut case like that, sir. 

Senator LEAHY. I understand. I was trying to make it, for an 

easier answer, to make it clear-cut. 

Let’s go to Section 9(k) of the Chairman’s bill. This would exempt 

from criminal liability any FBI agent or intelligence officer who 

executes a physical search for foreign intelligence information if the 

search is authorized ‘‘under the Constitution.’’ Apparently, that is 

a reference to the President’s claimed inherent authority as Commander-in-Chief. Does this immunize anyone who conducts 

warrantless searches of American homes and offices without court 

orders under the say-so of the President? 

34 

General ALEXANDER. Steve, do you want to answer that one? 

Mr. BRADBURY. Well, I think, Senator, it simply conforms the law 

to what FISA is trying— 

Senator LEAHY. No, no. Now, let’s go back. You were so good before answering the question that I began with. Does this immunize 

somebody who conducted a warrantless search of an American 

home or office under the say-so of the President? I mean, that 

should be simple. 

Mr. BRADBURY. Well, if intelligence officers have executed surveillance programs that have been duly authorized by the President, this would recognize that those intelligence officers who exercise those authorities should not be subject to a criminal process. 

Senator LEAHY. So it immunizes— 

Mr. BRADBURY. I would say, Senator, that that is the approach 

that FISA takes today. The officers and agents of the U.S.— 

Senator LEAHY. This is different. This is in Section 9(k), saying 

if they are authorized by the President—the President. Not FISA 

but the President. Does that immunize them? 

Mr. BRADBURY. Well, the legislation would recognize that there 

may be instances where there are programs authorized by the 

President. That is recognized in the legislation, and then there are 

procedures in place for judicial review. There are also procedures 

for the Attorney General in temporary circumstances to authorize 

surveillance without a court order. And so— 

Senator LEAHY. Well, has the President authorized warrantless 

physical searches outside of FISA? 

Mr. BRADBURY. I think that the only thing the President has 

talked about is the Terrorist Surveillance Program. That is the program that is done today without a FISA order. And that has been 

the subject of the hearings before this Committee, and I think it 

is an appropriate subject for the legislation that is being proposed. 

Senator LEAHY. Can you answer the question whether he has authorized such warrantless searches? 

Mr. BRADBURY. I am not going to say he has. 

Senator LEAHY. I wanted to make sure you had a chance to respond on that specifically. 

You know, I worry that what we are doing is trying to immunize 

a lot of activity. We had this great battle here conducted in the 

pages of the press and all on the question of torture. And then after 

wonderful signing ceremonies at the White House and everything 

else, the President said, However, there will be areas where we do 

not have to apply that law, and thus attempted to immunize people. 

I worry when we start going into this question of immunization. 

I am not talking about the President’s pardon ability, and we have 

seen that in Watergate and others where the President has pardoned people afterward, and Iran-contra and so on. I am talking 

about blanket immunization. 

Let me ask both General Alexander and General Hayden this. As 

I understand FISA, it has always allowed the NSA to use a kind 

of vacuum cleaner approach to radio communications in the United 

States, sometimes referred to as the ‘‘NSA exemption.’’ So in the 

Chairman’s bill, if you repeal Section 101(f)(2) of FISA, would that 

35 

extend the NSA exemption to all electronic communications, both 

wire and radio? 

General HAYDEN. Yes, I think the straightforward answer, Senator, is yes. And just one additional sentence of explanation is that 

it would allow NSA to target foreign entities—and we in our discussions, I think, have crossed some concepts here. In terms of targeting a foreigner for a foreign intelligence purpose, the Chairman’s bill would allow NSA to use all the tools that it has. It would 

not make a distinction between grabbing a signal out of the air or 

grabbing a signal some other way. 

Senator LEAHY. I understand. So, for example, if you had—this 

would allow you to seize and record all the calls between the 

United States and India, just blanket. 

General HAYDEN. No, it would not. 

Senator LEAHY. I am talking about under the—if you repeal Section 101(f)(2). 

General HAYDEN. No, no, not at all. 

Senator LEAHY. OK. 

General HAYDEN. It would allow you to target a phone number 

in Central Asia, and it would give you the same ability to cover 

that target that you now have pulling that signal out of the air or 

collecting that signal overseas, it would allow you to use all the 

tools that we have at our disposal in order to get what we have already agreed is coverage of a legitimate foreign intelligence target. 

Senator LEAHY. Do we do this kind of vacuum cleaner surveillance of Americans now? 

General HAYDEN. You are talking about intercepting the content? 

Senator, everything that is done is targeted and for a foreign intelligence purpose. No. 

Senator LEAHY. On these calls—and I understand, without going 

into the specifics of the program, you are taking a huge number of 

calls and e-mails, not specifically on a person. Are those then 

stored for retrieval and analysis by the NSA? 

General HAYDEN. Senator, your premise is incorrect. 

Senator LEAHY. OK. 

General HAYDEN. Under the President’s program, when NSA collects the content of a communication, it has already established a 

probable cause predicate that one or both communicants is associated with al Qaeda. So we do not vacuum up the contents of communications under the President’s program and then use some sort 

of magic after the intercept to determine which of those we want 

to listen to, deal with, or report on. 

Senator LEAHY. What if something is picked up by mistake? 

What happens to it? 

General HAYDEN. There is a technical term called ‘‘inadvertent 

collection.’’ If NSA collects something inadvertently, standard procedures for the President’s program or the standard procedures we 

have for all inadvertent collection, it is destroyed. 

Senator LEAHY. So it is not available to others throughout the 

Government. 

General HAYDEN. Only with one exception. If the inadvertent collection contains evidence of a crime, policy and statute require us 

to report that. Otherwise, it is destroyed. 

36 

Senator LEAHY. Now, in addition to narrowing the definition of 

‘‘electronic surveillance,’’ as I read Section 9, it would expand the 

so-called embassy exception in Section 102 of FISA. Am I correct 

on that, Mr. Bradbury? 

Mr. BRADBURY. Yes, Senator. I believe under this new provision, 

that provision would allow the Attorney General to approve for a 

period targeted foreign intelligence surveillance that is directed 

solely at the communications of foreign government operations or 

non-U.S. persons who are agents of a foreign government. Solely 

those communications. 

Senator LEAHY. If this was passed, for example, if you had a 

Congressional staffer call the German Embassy to plan a Congressional trip to Berlin, that could be picked up. 

General HAYDEN. Senator, across the board, when NSA conducts 

surveillance against a legitimate foreign intelligence target and 

that target is in communication with an American—the American 

is not the target; the foreign entity is the target—we have well-established procedures to protect the privacy of the U.S. communicant. 

Senator LEAHY. Well, Section 9 of the Chairman’s bill expands 

the definition of ‘‘agent of a foreign power.’’ We expanded that definition a few years ago, the so-called lone-wolf amendment. It also 

changes the definition of ‘‘Attorney General’’ from being restricted 

to the Attorney General or Deputy Attorney General to any person 

or persons designated by the Attorney General. Would that permit 

the Attorney General to delegate to every FBI agent and intelligence officer in the country the authority to authorize emergency 

wiretaps of phone calls? 

Mr. BRADBURY. No, Senator, that is not the way the Attorney 

General delegates his authority. So, for example— 

Senator LEAHY. But under this change of definition to now include any person or persons designated by the Attorney General— 

I am not saying whether he would do it, but would he have that 

power? 

Mr. BRADBURY. He would never do that. He would— 

Senator LEAHY. Would he have the power? 

Mr. BRADBURY. Not under his current— 

Senator LEAHY. You buy a car that can go 125 miles an hour. 

You are going to say, ‘‘But, of course, I would never drive over the 

speed limit.’’ But you could go 125 miles an hour. If this says he 

can delegate it to anybody, does he have the power to delegate it 

to anyone? 

Mr. BRADBURY. He would delegate pursuant to his existing regulations on delegations, which are limited. And so in this case, for 

example, you would be talking about the Assistant Attorney General for the National Security Division, in all likelihood. 

Senator LEAHY. But we have in the law now it is restricted to 

the Attorney General or the Deputy Attorney General, as we note 

a reference to that in Ruth Marcus’s column this morning in the 

paper. But this would permit him to go way beyond that, does it 

not? I mean, just on the face of it. Aside from what he might or 

might not do, on the face of it does it allow him to go way beyond 

that? 

37 

Mr. BRADBURY. Well, Senator, let me say this: All authorities of 

the Attorney General today under statute, unless they are expressly limited against delegation, are subject to delegation by the 

Attorney General pursuant to his existing regulations in the Department of Justice, and this would simply allow for that. But 

under those regulations, authorities of the Attorney General are 

not widely delegated to all individual FBI agents, for example. 

That is simply not done and it would not be done. 

Senator LEAHY. I had such hopes for you earlier when you actually answered a question yes or no. But I will submit the rest of 

my questions, Mr. Chairman. This is highly technical. Between the 

House and Senate, I remember we had more than a dozen hearings 

when we considered reauthorization of the PATRIOT Act. And this 

bill goes way beyond the PATRIOT Act. So we will require more 

answers, and I appreciate the extra time. 

Chairman SPECTER. Well, Senator Leahy, we are available for 

more hearings. We have only had five. We will have as many as 

we need. 

General Hayden, thank you for your testimony and thank you for 

your service. 

General HAYDEN. Thank you. 

Chairman SPECTER. General Alexander, thank you for your testimony and for your service. 

General ALEXANDER. Thank you. 

Chairman SPECTER. Mr. Bradbury, thank you for your testimony 

and your service. It is good to have real professionals come before 

this Committee and answer the questions. 

Mr. BRADBURY. Thank you, Mr. Chairman, and thank you, Senator Leahy. 

Chairman SPECTER. We turn now to Panel 2: Mr. Cunningham, 

Mr. Dempsey, Mr. Schmidt, and Ms. DeRosa. 

Our first witness is Mr. Bryan Cunningham, principal in the 

firm of Morgan & Cunningham; bachelor’s degree with distinction 

from the University of Iowa; law degree from the University of Virginia Law School; worked for the CIA for some 6 years, first as an 

intelligence analyst and later as executive assistant to the CIA Director; Special Assistant U.S. Attorney in the Department of Justice. His full resume will be made a part of the record. 

We appreciate your coming in, Mr. Cunningham, and we are 

going to go back to 5-minute rounds now. 

Senator LEAHY. Mr. Chairman, just before you start, I have just 

been advised by Ms. Katzman I forgot to put into the record—I had 

a number of things in my last question, if I might have permission 

to put that in the record. 

Chairman SPECTER. Sure. Without objection, you may put them 

at your leisure. 

[The full resume of Bryan Cunningham appears as a submission 

for the record.] 

Chairman SPECTER. Mr. Cunningham, we are going back to 5- 

minute rounds and 5-minute openings, and the floor is yours. 

38 

STATEMENT OF H. BRYAN CUNNINGHAM, PRINCIPAL, 

MORGAN & CUNNINGHAM LLC, DENVER, COLORADO 

Mr. CUNNINGHAM. Thank you, Mr. Chairman, Ranking Member 

Leahy, and other members of the Committee, for having me here 

today. It is a great honor and privilege to testify before you on 

something that I think is of absolutely vital importance to our Nation today, and that is, how to balance the need of this President 

and, perhaps more importantly, future Presidents to prevent catastrophic attack against our country with the cherished civil liberties and separation of powers that are the bedrock of our American democracy. As a national security and information security 

and privacy lawyer for most of my career, serving actually more 

time under Democratic Presidents than Republican, and participating in the Markle Task Force on National Security, a bipartisan 

group, I am confident that we can balance these two interests; that 

we must balance them correctly, or risk far more damage to our 

civil liberties in the event of a catastrophic attack than we have 

imagined to date; but only if, in my judgment, the Foreign Intelligence Surveillance Act is reformed and is amended along the 

lines, Mr. Chairman, of your bill, S. 2453. 

In addition to responding to your questions, my testimony today, 

my statement, which I would ask to be put in the record, addresses 

essentially three— 

Chairman SPECTER. Your full statement will be made a part of 

the record. 

Mr. CUNNINGHAM. Thank you, Mr. Chairman. Essentially three 

issues. 

First, it discusses what I believe to be the proper and appropriate 

way to analyze the constitutional question here. I understand why 

both the administration and many Members of Congress and commentators on all sides have addressed this principally as a question 

of the President’s Commander-in-Chief authority under Article II of 

the Constitution. I believe based on much precedent cited in my 

testimony and also in a brief that I co-authored with the Washington Legal Foundation in the New York case, which I would also 

ask be put in the record today, that the best way to look at this 

issue is under the President’s foreign affairs and foreign intelligence authority. And I would submit that that is the way that 

most courts historically have looked at it and balanced those interests, as you correctly suggested earlier, Mr. Chairman, against the 

interests of Congress. 

I will not go into any detail about those arguments in my opening statement for purposes of time, but I would be happy to take 

any questions on that. 

At the outset, I wanted to say just a brief word about bipartisanship. I am honored to be on this panel with a former Associate Attorney General for the Clinton administration. As I said, I have 

served in both administrations, and I would also commend to the 

Committee the work of David Kris, who I know has testified before 

this Committee, who was a senior FISA expert in the Clinton and 

the Bush administrations. 

Now to the specific provisions, Mr. Chairman, of your legislation. 

I support the programmatic approval that is called for in that bill, 

along with a Democratic counterpart recommended in an op-ed 

39 

back in February exactly such a program of programmatic approval. I think it is really the only way that we can create a situation where FISA keeps pace with the technological changes since 

1978 and the changes in the behavior of our enemies. 

I strongly support also the concept of electronic tracking as outlined in the legislation. I think that the ability for the United 

States to use what I call ‘‘machine triage’’—that is, sifting of large 

amounts of content by computers prior to human beings actually 

looking at the data—is important both for our national security 

and our civil liberties. And I am happy to see that concept included 

in your bill. 

I would just say a couple of brief words about Section 801. There 

was a lot of discussion, appropriately, in the first panel about that. 

The language that would make it clear that the President retains 

his Article II—in my view, foreign affairs primarily, but Article II 

constitutional authority to conduct electronic surveillance for foreign intelligence purposes when at least one party is outside the 

United States or in other circumstances. There has been some discussion about why that is important, and I watched with interest 

your discussion with the Attorney General the other day, Mr. 

Chairman, about this issue. I think this is absolutely essential that 

this language be included in any FISA reform legislation, and I 

think it is essential for four reasons. 

First, I think it is important that the public have a clear understanding and statement of what the law and the Constitution is. 

I know some of my colleagues on the Markle Task Force, whom I 

am proud to have served with and proud to be here with today, 

would agree with the notion that this, whatever our law is, should 

be made clear to the public. And I think 801 does that. I think it 

is a statement of the current law. 

Second, I think it is important, I think it is necessary to get any 

President, whether this President or a future President, to agree 

to reform legislation like this. 

And, third, I think it is important because it will help our officers 

avoid the risk aversion that General Hayden discussed earlier in 

the context of being criticized for following the law, to have it be 

clear that the Congress and the administration and the judiciary 

all agree on this state of the law. 

And, finally, I think no President of either party should ever 

have to be forced in the future into the Hobson’s choice of deciding 

whether to fail to collect information that could protect us against 

attack or be accused of violating the law. 

I look forward to answering your questions. Thank you. 

[The prepared statement of Mr. Cunningham appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Cunningham. 

Our next witness is Mr. Jim Dempsey, Policy Director for the 

Center for Democracy and Technology; bachelor’s degree from Yale; 

law degree from Harvard; clerked for Massachusetts Supreme 

Court Justice Robert Braucher; served as assistant counsel to the 

House Judiciary Committee; has a distinguished record in the practice of law, which will be made a part of the record. 

Thank you for coming in, Mr. Dempsey, and the floor is yours. 

40 

STATEMENT OF JAMES X. DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY, WASHINGTON, 

D.C. 

Mr. DEMPSEY. Mr. Chairman, thank you for the opportunity to 

testify at this hearing today. 

Mr. Chairman, we commend you for your tireless leadership in 

seeking to ensure judicial review of the President’s warrantless 

surveillance program. From the outset, you have been forthright in 

your criticism of the administration and their disregard of the express requirements of the FISA statute. And now, through intense 

negotiation, you have secured the promise of the President to submit his current surveillance program to court review. 

With profound respect, Mr. Chairman, we must conclude that the 

price you paid for that simple concession is far too high. It pains 

me to say this, Mr. Chairman, but your bill as it stands today is 

not a 21st century bill. To the contrary, it would turn the clock 

back to an era of unchecked Presidential power, warrantless domestic surveillance, and constitutional uncertainty. 

Your bill as it now stands, Mr. Chairman, has been so far altered 

from its origins and has become so dangerous to fundamental constitutional precepts that, as one civil libertarian to another, Mr. 

Chairman, let me say that we would rather see the President’s unlawful program continue unchecked than to see your bill enacted 

into law. 

You said the President will not yield to Congressional mandate. 

True. This President has a radical view of Presidential power. The 

next President may not have that view. But your bill would endorse the radical concept of the imperial presidency. And once Congress gives up on the concept of checks and balances and gives the 

President the blank check, it may be decades before the pendulum 

can swing back to the center. 

Let me just focus on two ways in which your legislation would 

turn back the clock to an era of warrantless surveillance. 

Sections 5 and 6 of the Chairman’s bill would authorize a program of domestic surveillance far broader than President Bush’s 

program. The Attorney General has said, and General Hayden confirmed today, that the President’s program targets only communications with particular suspected members or affiliates of al 

Qaeda, only on the basis of probable cause, only for short term, and 

only if one leg of a call is overseas. 

Your bill, Mr. Chairman, would authorize seizing the contents of 

purely domestic calls of American citizens without probable cause, 

without specific suspicion, where the call has nothing to do with al 

Qaeda or even with terrorism, and would allow that surveillance to 

go on long term. 

Section 9 of your bill, by redefining ‘‘electronic surveillance,’’ 

would vastly expand the scope of warrantless surveillance, and the 

changes that you make to Section 102 of FISA would authorize 

warrantless surveillance of purely domestic calls. 

General Hayden offered excellent testimony this morning, Mr. 

Chairman, and it provides a road map for how to address some of 

the problems facing the intelligence agencies today. But that road 

map does not lead to your bill. 

41 

On the question of who is the target, General Hayden emphasized the importance of the emergency procedures of FISA and 

about allowing the Attorney General to delegate his authority to 

grant emergency orders. I agree with that. 

As to where is the target, General Hayden said how important 

it was—and you noted in your op-ed—when a foreign person is calling a foreign person, that a FISA order should not be required even 

if the vagaries of technology, the advances in technology put that 

call into the United States and at the disposal of the intelligence 

agencies. I don’t think that foreign to foreign, accessible in the 

United States, is currently covered by FISA, and it shouldn’t be. 

In terms of technology neutrality, again, yes, the statute should 

be technology neutral. But in which direction? Your bill takes technology neutrality and uses it to expand the scope of warrantless 

surveillance. I think it is worth looking at using technology neutrality to expand the warrant requirement. 

A lot of this boils down to one question: foreign to domestic calls. 

And one key word lacking from your bill, which we heard time and 

again from General Hayden and General Alexander, is the word 

‘‘targeting.’’ When the Government is targeting a known or suspected terrorist reasonably believed to be overseas, whether that 

call is intercepted in the United States or overseas, a warrant 

should not be required. And I think it is worth thinking about not 

turning off the tap when that target happens to call a number in 

the United States. If it turns out that he repeatedly calls the 

United States, then maybe you do have to go to a warrant, regardless of geography. But that is a much narrower solution to the 

problem of foreign to domestic than exists in your bill, and I think 

we can have a lot more in-depth discussion about how to respond 

to the global changes in technology without having a one-way 

downward ratchet so that just because technology is changed, privacy principles have to be abandoned. 

Thank you, Mr. Chairman. I look forward to your questions and 

those of Senator Leahy. 

[The prepared statement of Mr. Dempsey appears as a submission for the record.] 

Chairman SPECTER. Thank you, Mr. Dempsey. 

Our next witness is Mr. John Schmidt, partner of the firm 

Mayer, Brown, Rowe & Maw; cum laude graduate from Harvard 

College—magna cum laude from Harvard College, cum laude from 

the law school, and an editor on the Harvard Law Review; was Ambassador and Chief U.S. Negotiator on the Uruguay Round under 

the General Agreement on Tariffs and Trade; Associate Attorney 

General from 1994 to 1997; a visiting scholar at the Northwestern 

University School of Law. 

We appreciate your coming in today, Mr. Schmidt, to testify, and 

we look forward to your testimony. 

STATEMENT OF JOHN SCHMIDT, PARTNER, MAYER, BROWN, 

ROWE & MAW LLP, CHICAGO, ILLINOIS 

Mr. SCHMIDT. Thank you, Mr. Chairman and Senator Leahy. I 

am happy to be here and give you my thoughts on what Congress 

should now be doing to improve the Foreign Intelligence SurveilVerDate Nov 24 2008 10:43 Apr 22, 2009 Jkt 043453 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43453.TXT SJUD1 PsN: CMORC
42 

lance Act. I have submitted a full statement, and I will summarize 

it as briefly as I can. 

Chairman SPECTER. Your full statement will be made a part of 

the record. 

Mr. SCHMIDT. I think it is important to get away from any talk 

or even thinking about whether the President or Congress is winning or losing or whether somebody is capitulating or compromising. None of that matters. What matters is whether we end up 

with an institutional structure that will both protect constitutional 

rights and achieve effective surveillance of al Qaeda and other terrorist groups. 

It seems to me that the bill that you have introduced and that 

I understand the administration is now supporting would, in fact, 

be a constructive step to achieve both of those objectives. It would, 

as has already been discussed, allow the President to submit to the 

Foreign Intelligence Surveillance Court for a decision on its constitutionality a program of surveillance that does not involve the 

Court in the individualized approval of warrants specifying individual targets of surveillance. 

The NSA program that we know something about is a program 

of that nature. The President cannot do that under current law. 

The FISA Court has made very clear it is a court of limited statutory jurisdiction. In fact, there was an effort some years ago to submit a physical search to the FISA Court before the statute allowed 

that, and the FISA Court said, ‘‘We don’t do physical searches. We 

only approve electronic surveillance.’’ The statute was later amended. But it is absolutely clear that the Court would not, could not 

do that now. 

It seems to me that letting that Court determine the constitutionality of the NSA program or other programs that come along 

in future circumstances is really in everybody’s interest. It is in the 

interest of the President to find out if, in fact, the Court agrees 

that that program is constitutional. He can make changes if he 

needs to. It is in the interest of Congress to get off of Congress the 

burden which some people want to put on you to make constitutional judgments of that nature. It is not that you cannot do it as 

individuals, but institutionally Congress is not in that business, 

Congress is not capable of making individualized judgments about 

a particular program’s constitutionality. Oversight should continue. 

But oversight is not a substitute for a constitutional judgment by 

a court. 

I think it is in the interest of the security professionals at the 

NSA and elsewhere to allow a court decision. That is something 

that we really have not talked much about, but, you know, there 

is no reason to think the current program is the last word on what 

we should be doing to use the electronic surveillance capacities we 

have against al Qaeda. If you are at the NSA today and you are 

thinking working on possible change in that program, if you come 

up with a new idea to change it, a new program, it has to be 

chilling, inhibiting to know that those efforts are likely to be the 

result in hearings of this nature, being able to get a court decision 

in advance on whether a program is constitutional gives those NSA 

professionals confidence that what they are doing is not going to 

be subject to that kind of controversy. And, most of all, it gives the 

43 

American people the confidence of knowing that there has been a 

court decision on the constitutionality of a program. I think courts 

are the way we make constitutional decisions in this country. It is 

the process that people have confidence in. 

The part of the bill that seems to be the most controversial is the 

provision that says it recognizes that the President retains Article 

II surveillance authority outside the provisions of the statute. As 

has been noted, that is consistent with the judicial authority today, 

court of appeals decisions that recognize the President’s authority 

and the 2002 Court of Review decision that says flatly Congress 

cannot encroach upon that authority. So it is not as though Congress is giving up anything which any court has ever said that it 

has. 

But, you know, even if Congress could limit the President to a 

statutory surveillance process, I don’t think Congress should want 

to do that. The strongest statements on this issue were made by 

Edward Levi, who was referred to earlier by Senator Kennedy, who 

played an active role in the development of the FISA statute, 

worked to pass it. Ed Levi always said that statute cannot be exclusive. He was insistent that there be an acknowledgment in the 

statute of the President’s retained Article II authority. He was 

asked the question that Senator Leahy was pressing Mr. Bradbury 

on: What difference does it make if the President has the authority 

anyway? And Levi’s response was it would create a dangerous confusion for Congress to pass a statute which did not acknowledge 

that the President retained his own constitutional Article II surveillance authority outside the terms of that statute. And if there 

was ever any doubt about whether Levi was right, it seems to me 

that the events of 9/11 prove that. 

If it were true that the President was, in fact, limited to a statutory surveillance process, it would mean that if on the morning of 

9/11 General Hayden had called President Bush and said, ‘‘We 

want to go forward immediately with the interception of calls at 

airports around this country where we think al Qaeda has people 

on the ground prepared to carry out further attacks,’’ the President’s only lawful response to that would be to say, ‘‘Well, we need 

to get the Attorney General, we need to begin examining whether 

each of those intercepts complies with the FISA statute, and maybe 

we will be able to get you authority by this afternoon or tomorrow 

morning.’’ 

That is not the way any American President would construe his 

constitutional authority when faced with an attack on this country. 

I do not think it is the way any Member of Congress wants him 

to construe it. And I can see no negative and it seems to me there 

is a positive in having the statute acknowledge that there are circumstances—which the statute does not try to define, but that the 

President retains Article II authority even in the face of any statute that Congress passes. 

So I think it would be a good step. I think it would be an effort 

to rise above the current confrontation and create a mechanism 

that can avoid controversies like this in the future. 

[The prepared statement of Mr. Schmidt appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Schmidt. 

44 

Our final witness on the panel is Ms. Mary DeRosa, Senior Fellow at Johns Hopkins Center for Strategic and International Studies; bachelor’s degree from the University of Virginia; law degree 

from George Washington University Law School; clerked for Second 

Circuit Judge Cardamone; had been special counsel to the Department of Defense; Special Assistant to the President for the National Security Council. 

We thank you for joining us today Ms. DeRosa, and the floor is 

yours. 

STATEMENT OF MARY B. DEROSA, SENIOR FELLOW, CENTER 

FOR STRATEGIC AND INTERNATIONAL STUDIES, TECHNOLOGY AND PUBLIC POLICY PROGRAM, WASHINGTON, D.C. 

Ms. DEROSA. Thank you, Mr. Chairman, Senator Leahy. Thank 

you for inviting me to testify today. I did want to just correct my 

institution. It is not the Johns Hopkins Center for Strategic and 

International Studies. 

As you mentioned, I was a legal adviser at the National Security 

Council and a lawyer at the Department of Defense, and from that 

experience, both of those experiences, I developed an understanding 

of the need to act quickly and flexibly in the national security area 

and a strong appreciation for Executive authority. I actually 

thought at one point that I was sort of extreme on the subject of 

Executive authority, but I now realize that that is not the case. 

I come to a discussion of FISA with a respect for the need in the 

Executive Branch to act nimbly, to adapt to changes in technology 

and threats, and I believe the law must permit this flexibility. But 

saying that national security operators need flexibility is not the 

same as saying that they must be able to take the easiest route in 

all cases. 

Sometimes other priorities will require some different routes, 

some extra steps, and will make the job perhaps a little bit more 

difficult. That is not the inquiry, the correct inquiry. The correct inquiry is: Do these extra steps make it so that the operators cannot 

get what they need to get done done? 

When we are talking about something as sensitive and intrusive 

as interception of private communications of people in the United 

States, court oversight of Executive Branch action, although it 

might not be the easiest way to go, is absolutely essential. 

Experts in the late 1970s who crafted FISA concluded that the 

critical mechanism for ensuring public acceptance of national security wiretaps was a process that ensured careful court oversight of 

surveillance and making that process exclusive for approving surveillance decisions. And I would like to comment on some of the exchange with the last panel about whether the President’s Article II 

powers can be limited in any way. 

It is true absolutely that the President has Article II powers and 

authority to conduct electronic surveillance in the national security 

area, but that is the beginning of the inquiry. That is not the end 

of the inquiry. Congress absolutely may regulate and limit the exercise of those authorities. I am sort of uncomfortable as a former 

White House lawyer saying it, but I believe that that argument 

sells Congress’ own authorities short. 

45 

In the Youngstown analysis that has been discussed, Category 3, 

where there is a conflict between the Congress’ exercise and the 

President’s exercise, Justice Jackson said at that point the President’s powers—the ability to exercise his powers is at its lowest 

ebb. It is not unaffected—the Article II powers are not unaffected. 

That is Category 2. In Category 3, the President’s ability to exercise his authority is at its lowest ebb. So Congress can affect and 

in the case of FISA did intend to affect the exercise of those powers. 

Now, does that mean necessarily that those powers are extinguished. In my view, no. There might be something left. It depends 

on the extent of the Congress’ powers. But it is unquestionably 

something less, something limited. I think in the circumstances of 

the Hobson’s choice that Mr. Cunningham mentioned and the 9/11 

circumstance that Mr. Schmidt mentioned, perhaps there would be 

some authority under those very, very limited, exigent circumstances, limited period of time to do something within the 

President’s power. But it is not an unlimited entire exercise of the 

Article II authorities. 

The drafters of FISA made concessions to the need for flexibility 

along the way, and the FISA Court is not a regular Federal court. 

It operates in secret and ex parte. And the requirement for obtaining a warrant is not like a criminal probable cause requirement. It 

is a much less rigorous standard, the probable cause that the target is an agent of a foreign power. But it is a disciplined process, 

and it is transparent in that the public understands what is happening and understands the rules. 

I see that my time is just about out, and I welcome your questions. 

[The prepared statement of Ms. DeRosa appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Ms. DeRosa. 

Mr. Dempsey, you testified and you have in your written statement this sentence: ‘‘With profound respect, we must conclude that 

the price the Chairman paid for that simple concession is far too 

high.’’ That follows the sentence there was the ‘‘promise of the 

President to submit his current program to court review.’’ And you 

characterize it as a ‘‘simple concession.’’ 

Have you ever gotten a concession from a President? 

Mr. DEMPSEY. It is not hard, Mr. Chairman, and—I mean, it is 

not easy, excuse me. 

[Laughter.] 

Chairman SPECTER. Well, wait a minute. Is it hard under the 

Freudian slip or is it easy? Have you followed what President Bush 

has done by way of signing statements? 

Mr. DEMPSEY. Mr. Chairman, this is a President who has an extreme view of— 

Chairman SPECTER. Have you followed— 

Mr. DEMPSEY. Yes, I have. 

Chairman SPECTER.—what the President has done on signing 

statements? 

Mr. DEMPSEY. Yes, Mr. Chairman. 

46 

Chairman SPECTER. Have you followed what he did on refusing 

to give clearance to the Office of Professional Responsibility to 

check on the surveillance program? 

Mr. DEMPSEY. Yes. 

Chairman SPECTER. Have you followed the activities generally of 

the President’s view of Executive authority? 

Mr. DEMPSEY. Yes. 

Chairman SPECTER. Well, I will not ask you how you can say it 

is a simple concession, but let me tell you that to get the President’s—well, let me rephrase it. Have you ever seen in the past a 

President agree to legislation that he was generally opposed to 

through negotiations in advance of the introduction of a bill? Do 

you know of any precedent for that? 

Mr. DEMPSEY. I am sorry, Mr. Chairman. I did not understand 

that question. 

Chairman SPECTER. Well, have you ever seen the President negotiate an agreement to sign a bill that was not originated by the administration? 

Mr. DEMPSEY. I cannot cite one, but I don’t know that it has not 

happened. 

Chairman SPECTER. Well, I would just suggest to you that given 

the President’s attitude on the surveillance program and his attitude on Executive power generally, it was not a simple concession 

but really was quite a breakthrough. But I respect your difference 

of opinion. 

Mr. DEMPSEY. May I respond, Mr. Chairman? May I respond? 

Chairman SPECTER. Sure. 

Mr. DEMPSEY. Call it, then, a major concession. The price is still 

too high because for this one promise to submit this one program 

to the FISA Court, your bill would excuse this President from submitting any future program and any future President from submitting any other program to the Court. 

Chairman SPECTER. Would excuse him from submitting any program? You say ‘‘excuse’’ ? 

Mr. DEMPSEY. Yes. It would give him— 

Chairman SPECTER. Well, the President has no obligation to submit this program or any program to the Court, as President Bush 

interprets his Article II power. 

Mr. DEMPSEY. And this is where I think that we have a monumental clash, and you have put yourself into the middle of that 

clash, Mr. Chairman, and you are to be complimented to the highest degree. But there is— 

Chairman SPECTER. Well, I did not put myself there. The Senate 

did by making me Chairman of the Judiciary Committee. But let 

me move on— 

Mr. DEMPSEY. And you accepted, Mr. Chairman, if I— 

Chairman SPECTER. Just a minute, Mr. Dempsey. I have heard 

you on that. I want to ask Ms. DeRosa a question based on your 

testimony. Ms. DeRosa, do you agree with what Mr. Dempsey has 

had to say, that he would prefer to see the President’s unlawful 

conduct continue rather than have a structured review by the FISA 

Court? 

Ms. DEROSA. Well, I am not sure that I would characterize it exactly the way you have, but I do— 

47 

Chairman SPECTER. No, I did not characterize it that way. Mr. 

Dempsey said that he would prefer to see the President’s unlawful 

conduct continue. 

Ms. DEROSA. I think given the legislation as written, I would 

prefer no legislation to the legislation that is introduced because I 

believe that it—although I think judicial review of this program is 

a high priority, it is not as high as exclusivity and some of the 

other issues that are raised by— 

Chairman SPECTER. Is there exclusivity for FISA today? 

Ms. DEROSA. Well, I believe that there is. I believe that it is 

clear from the language of the statute that that is what was intended. And as a practical matter, is the President complying with 

the language of the statute? No. But that is what the statute clearly states and would for the future as well. 

Chairman SPECTER. My red light went on in the middle of your 

answer, so I will yield to Senator Leahy. 

Senator LEAHY. Thank you. 

Mr. Schmidt, good to see you here. I listened to your hypothetical 

about what the President might do if he was asked to track some 

of these people on September 10th or 11th. Let’s go from the hypothetical to the reality. The reality is that the Bush administration 

had all the information necessary to stop the attack on September 

11th and failed to act upon it. In fact, if you want to go to what 

happened on September 10th, they were proposing to cut very substantially the counterterrorism funds for investigations in this 

country. The thing is we can change the laws all the way we want. 

Sometimes it requires a little competence in using what they have. 

Now, Mr. Dempsey, having watched the President’s unwillingness to obey the law and follow the law, you are not suggesting 

that Congress then should simply give up and ignore our own Article I powers that could require the President to follow the law? 

Mr. DEMPSEY. No, Senator, and I think there is a bill before the 

Committee, the Specter-Feinstein bill, that would insist upon Congress’ powers under the Constitution and would require the President or be more likely to require the President—he still may disregard it. I think that this is an absolutely momentous debate that 

we are in, and it may take years for this conflict between the President’s vision of Executive power and what I believe to be the constitutionally correct vision of Presidential power, endorsed most recently by the Supreme Court in the Hamdan case. 

Senator LEAHY. I am going to be getting to that. The Chairman 

asked Ms. DeRosa whether there is exclusivity today. Of course, 

the answer is yes. And you and I agree on one thing. The President’s program is unlawful. 

Now, if we repeal the exclusivity provision, what effect would 

that have? 

Mr. DEMPSEY. Then that would make FISA optional and would 

cast doubt, constitutional doubt, on surveillance activities. Here we 

are in the middle of a war against terrorism. We have a FISA statute that has been approved by every court that has reviewed it. 

Evidence from FISA surveillances has been introduced in hundreds 

of criminal cases and never been rejected. And here we are proposing to cast that aside and allow the President to carry out wireVerDate Nov 24 2008 10:43 Apr 22, 2009 Jkt 043453 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43453.TXT SJUD1 PsN: CMORC
48 

taps outside of that. What if they find a real terrorist? What if the 

evidence is rejected in court? 

It is a very risky approach to cast aside what in my view the Supreme Court has held is appropriate, that is, Congress has war 

powers, the President has war powers. Congress, in its exercise of 

its war powers under the necessary and proper clause, under its 

authority to regulate the armed forces, can adopt legislation that 

limits the President’s inherent power. 

Senator LEAHY. In fact, many of the arguments made by the administration about what the powers are showing here is what happened in World War II and on and on, all of that was before FISA 

was enacted. Then came Justice Jackson’s decision in Youngstown 

Steel. That would certainly circumscribe what the President could 

do. 

Do you agree with Attorney General Gonzales that Section 8 of 

the bill is meaningless and does not change the status quo? 

Mr. DEMPSEY. Well, if it is meaningless, then let’s not pass it. 

Senator LEAHY. OK. 

Mr. DEMPSEY. Other than the fact that the Chairman feels that 

that is what it will take to get the President, that was the quid pro 

quo for the President submitting this one program— 

Senator LEAHY. Of course, I have stated before, you know—and 

I was not in the negotiations, but basically I worry the President 

said here, ‘‘I will stop breaking the law if you will pass a law saying that I am pardoned from breaking the law and I do not have 

to follow the law anymore.’’ 

The Justice Department White Paper on the so-called—that is 

sort of ‘‘Alice in Wonderland.’’ The Justice Department White People on the so-called Terrorist Surveillance Program assumes that 

the NSA’s activities constitute electronic surveillance as defined by 

FISA. A reasonable assumption given the current definition of 

‘‘electronic surveillance,’’ which covers any wire communication to 

or from a person in the U.S. if the acquisition occurs in the U.S. 

The Chairman’s bill narrows the definition, in particular, repeals 

the language I just referred to. As you read the new definition, 

would the NSA’s activities, or at least the activities the President 

has acknowledged so far, still constitute electronic surveillance? Or 

would FISA no longer require the Government to get a warrant for 

those activities? 

Mr. DEMPSEY. Well, actually, the President’s program, because it 

is foreign to foreign and they are targeting somebody overseas, I 

guess it would not require a warrant for the President’s program. 

Senator LEAHY. OK. And you will have a chance— 

Mr. DEMPSEY. Although let me say that General Hayden testified 

that they have probable cause and specificity for every single one 

of the surveillances under the President’s program, which would fit 

the FISA definition currently. Also, as I said, General Alexander 

and Senator Feinstein had sort of an ‘‘aha’’ moment there when 

General Alexander was explaining that the NSA, our Government, 

has benefited from a windfall as a result of the changes in technology, such that a large percentage of foreign-to-foreign communications now pass through the United States. So what the NSA 

used to have to try to acquire overseas, where FISA does not apply, 

is now available to them in the United States. And everybody 

49 

agrees, including from the civil liberties perspective, that foreign to 

foreign should be exempt from FISA regardless of geography, regardless of where the interception occurs, and regardless of the 

technology. 

General Alexander said, But then once we start in the United 

States targeting an individual overseas, most of whose conversations are foreign to foreign and, therefore, exempt, and we find a 

foreign-to-domestic conversation, under current law, if they are in 

the United States, they have to suspend, and they believe they 

have to go get a warrant. 

Now, that is a problem worth thinking about; that is, where you 

are targeting an individual overseas, most of his conversations are 

foreign to foreign. You can get him in the United States even 

though he is overseas. His communications get routed through this 

country, an accident of the evolution of technology that was not apparent in 1978. 

Now, I think it is worth thinking about, if we are talking about 

that problem, a much more narrow definition. The Chairman’s bill 

would say that anything that is foreign to foreign, including when 

you are not targeting a foreigner, or anything that is foreign to domestic, including when you are not targeting a foreigner, would be 

exempt from the warrant requirements—which, by the way, also 

makes it exempt from the statutory minimization requirements 

and casts you only back upon whatever the President decides to 

adopt on his own. 

So I think that there is something there worth thinking about, 

but it is far narrower, Mr. Chairman, than what is in your bill. 

Senator LEAHY. I will submit my other questions for the record. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Thank you, Mr. Cunningham, Mr. Dempsey, Mr. Schmidt, and 

Ms. DeRosa. We very much appreciate your testimony. 

[Whereupon, at 12:08 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follows.] 

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43453.266
316 


43453.267
317 


43453.268
318 


43453.269
319 

Æ 


43453.270