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FISA AMENDMENTS ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MAY 31, 2012 

Serial No. 112–129 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

JARED POLIS, Colorado 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

MAY 31, 2012 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 14 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 15 

WITNESSES 

Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

Marc Rotenberg, President, Electronic Privacy Information Center (EPIC) 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Jameel Jaffer, Director, Center for Democracy, American Civil Liberties 

Union (ACLU) 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 40 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 3 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 16 

(1) 

FISA AMENDMENTS ACT OF 2008 

THURSDAY, MAY 31, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Lungren, 

Marino, Gowdy, Scott, Conyers, Cohen, Johnson, Chu, Jackson Lee, 

and Polis. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Arthur Radford Baker, Counsel; 

Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, Subcommittee 

Chief Counsel; and Aaron Hiller, Counsel. 

Mr. SENSENBRENNER. The Subcommittee will be in order. 

Today’s hearing examines the FISA Amendments Act of 2008, 

which is set to expire at the end of the year. The Foreign Intelligence Surveillance Act, or FISA, was enacted in 1978 to provide 

procedures for the domestic collection of foreign intelligence. 

In the 40 years since FISA’s enactment, communication technologies have changed dramatically and revolutionalized the transmission of international communication. The shift from wireless 

satellite communications to fiber-optic wire communications alter 

the manner in which foreign communications are transmitted. The 

use of wire technology inside the United States to transit a phone 

call that takes place overseas have the unintended consequence of 

requiring the government to obtain an individualized FISA Court 

order to monitor foreign communications by non-U.S. persons. 

In 2008, Congress passed and the President signed the bipartisan FISA amendments to update our foreign intelligence laws. 

The Act permits the Attorney General and the Director of National 

Intelligence to target foreign persons reasonably believed to be located outside the U.S. to acquire foreign intelligence information. 

The Act requires prior Court approval of all government surveillance using these authorities, including Court approval of the government’s targeting and minimization procedures. 

The FISA Amendments Act strengthens civil liberty protections 

for U.S. citizens by requiring the government to obtain an individualized Court order from the FISA Court to target them anywhere 

in the world to acquire foreign intelligence information. 

2 

Foreign surveillance under the FISA Amendments Act is subject 

to extensive oversight by the Administration and Congress. Every 

60 days, the Justice Department and the Director of National Intelligence conduct on-site reviews of surveillance conducted pursuant 

to the FISA Amendments Act. In addition, the Attorney General 

and the DNI conduct detailed assessments of compliance with 

Court-approved targeting and minimization procedures and provide 

these assessments to Congress twice a year. 

The Administration is also now required to submit to the Judiciary and Intelligence Committees a copy of any FISA Court order, 

opinion, or decision and the accompanying pleadings, briefs, and 

other memoranda of law relating to a significant construction or interpretation of any provision of FISA. 

The Obama administration supports reauthorization of the FISA 

Amendments Act for 5 years. DNI James Clapper and Attorney 

General Eric Holder have identified reauthorization of the Act as 

the top legislative priority of the intelligence community and are 

urging Congress to reauthorize the Act without amendment. 

Without objection, a February 8 letter from Director Clapper and 

General Holder and a March 26 letter from Director Clapper will 

be made part of the record. 

Hearing no objection, so ordered. 

[The information referred to follows:] 

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Mr. SENSENBRENNER. Foreign terrorists remain committed to the 

destruction of our country, and their methods of communication are 

constantly evolving. It is essential that our intelligence community 

has the necessary tools to detect and disrupt such attacks. We have 

a duty to ensure that the intelligence community can gather the inVerDate Aug 31 2005 09:32 Sep 19, 2012 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\053112\74415.000 HJUD1 PsN: DOUGA

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formation they need to protect our country and its citizens. I look 

forward to hearing more about this issue and thank all of our witnesses for participating in today’s hearing. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of the Subcommittee, the gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I want to thank you for 

holding this hearing on the FISA Amendments Act of 2008. That 

is the FAA of 2008. 

The Act established some parameters for the secret and, in my 

view, unconstitutional collection of intelligence information that 

had been ordered following the 9/11 attacks. However, some gaping 

holes were left in what is required to adequately protect the privacy of United States citizens. Americans have the right to feel as 

well as be free and secure in their persons belonging and activities 

from unwarranted government intrusion, and I am concerned that 

the FAA does not fully meet that standard. 

The Foreign Intelligence Surveillance Act, or FISA, was passed 

in 1978 to curb abuses that had been occurring in the collection 

and use of intelligence information, foreign and domestic. It was 

not passed for the purpose of excluding all foreign intelligence collection from the United States but to regulate and separate foreign 

and domestic intelligence collection. 

Collection of foreign intelligence requires merely that there is— 

collection of foreign intelligence requires merely that there is probable cause to believe that an actor is an agent of the foreign government and that foreign intelligence is a significant purpose of the 

collection. Now, foreign intelligence collection is only a significant 

purpose of the collection. We are left to wonder what is the primary 

purpose of information gathering. And with the USA Patriot Act we 

have added members of terrorist organizations and lone wolf terrorists to this low threshold for collecting intelligence. 

FISA has also recognized that foreign intelligence collection falls 

under the requirements of the Fourth Amendment when rights of 

U.S. persons are implicated. 

Such a low threshold for collecting intelligence—with such a low 

threshold for collecting intelligence, diligent oversight and reporting is required to ensure that the collection is not for a broader 

purpose than is necessary to achieve the goals. We should not be 

surveilling Americans by this low standard without some significant oversight. That is why we need clear standards that are rigorously enforced. 

The Foreign Intelligence Surveillance Court was created under 

FISA to oversee the operations of foreign intelligence gathering, 

and I suspect that the Court is doing a good job and may be doing 

a good job within its authority, but it operates in secrecy. I believe 

that the public has a right to know from laws and policies and reports on their implementation that the government is being held 

accountable for the Constitution and the laws. I do not believe that 

the FAA provides sufficient assurances to the public in either of 

these areas. 

We often hear the need for the government to expand its powers 

to meet the needs of technology but seldom do we hear the likewise 

need to protect privacy when technology advances. In 1978, there 

15 

was little American communication to and from foreign countries 

compared to today’s constant barrage of emails, phone calls, and 

other electronic communications. What was rare in 1978 is now 

commonplace and just as deserving of privacy from government 

spying and intrusion. 

The FAA processes result in massive amounts of information 

being collected with an untold amount of it affecting Americans in 

America. Now when we talk about government collection of data it 

is not just computers, it is government officials who may be your 

neighbors; and when you spread it around to other agencies you 

may be talking about other neighbors who are getting access to 

your private information. 

The primary requirements of the Fourth Amendment are probable cause warrants and particularity in conduct and place. It is 

not clear that these standards are being met when required under 

the FAA’s current structure. 

Now we hear complaints that it is too burdensome for the government to go through the procedures required and that we have 

to give up some of our privacy for greater safety. I am reminded 

of Ben Franklin’s comment that those who would give up essential 

liberty to purchase a little temporary safety deserve neither liberty 

nor safety. 

Neither the government’s press for access to information to accomplish its authorized purposes or the ease by which it can get 

the information should lessen our constitutional protections. Emergency procedures are provided under the Constitution and under 

the FAA, but the exception should not become the rule. 

I look forward to the testimony of our witnesses on where the 

FAA properly draws the lines between the insurance the public is 

entitled to under the Constitution and the legitimate needs of the 

government to do its job. 

Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The Chair now recognizes the Ranking 

Member of the full Committee, the gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

This is a sensitive discussion, as we all know, but the Fourth 

Amendment is critical. And I do not think that the Supreme 

Court—the courts have not finally ruled on what is going on. I 

come to this hearing disturbed by how little we know and how 

much more we need to know. I am glad that we are going to have 

closed door hearings in the near future, and I hope that they will 

be productive in terms of settling some of the lack of information 

that we have about this subject. 

So I guess it is going to be legitimate for us to ask how much 

do we need to know, how much can we talk about publicly, and 

how do we make sure that, quite frankly, FISA is not out of control? At this point, we do not have any way of knowing that, and 

one of the problems is the so-called minimization strategy. So I 

think we need to strengthen minimization and to make sure that 

this is a very understandable FISA operation that is satisfactorily 

constitutional, and right now we are not able to do that. 

So I am hoping that, in addition—and I hope the Chair will support or even lead in this—we need to talk to FISA officials. This 

16 

whole idea of us holding a hearing about FISA and nobody from 

FISA is here is part of the problem. We want to talk to the director, publicly or privately, and I have not had that opportunity yet, 

and I hope that the Members of the Committee share in my desire 

to do that. 

And so I will put the rest of my statement into the record. 

Mr. SENSENBRENNER. Without objection. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

I want to begin by thanking both Chairman Smith and Chairman Sensenbrenner 

for scheduling this hearing in such a timely manner. 

Mr. Scott, Mr. Nadler, and I wrote to Chairman Smith on May 9, requesting public hearings on the expiring provisions of the Foreign Intelligence Surveillance Act. 

Here we are, just a few days later, beginning an important discussion about civil 

liberties and the scope of secret government surveillance. I look forward to additional hearings on this topic, and I thank you both. 

Four years ago, when we passed the FISA Amendments Act of 2008, we authorized the electronic surveillance of suspected terrorists and foreign agents located 

outside the United States. 

Although the Foreign Intelligence Surveillance Court has some measure of oversight over these programs, the sweeping and general nature of this authority has 

given many cause for concern. 

For example, the government may describe its operations to the court in exceptionally general terms—as broad as ‘‘all phone calls, emails, and text messages originating in Pakistan’’—and conduct wide-ranging, dragnet surveillance from there. 

Although the law requires the government to use ‘‘minimization procedures’’ that 

limit the impact of these programs on American citizens, there is no question that 

the government can and does intercept and listen in on the communications of U.S. 

persons. 

The scope of this law has also raised questions about the practice of ‘‘reverse targeting,’’ where the government officially targets a foreign person in order to listen 

in on the conversations of U.S. persons on the other end of the line. This practice 

is explicitly prohibited by law—but with so much about these programs conducted 

in secret, including basic information about the impact of these programs on Americans, we have no way of knowing for sure whether the government conducts itself 

lawfully. 

These concerns are more than theoretical. In 2009, the New York Times reported 

that the NSA had engaged in the ‘‘overcollection’’ of American communications in 

situations not permitted by law. The government assures us that this problem, although widespread, was an accident and has been corrected. Whether or not the 

practice was deliberate, it was illegal—and it does not inspire confidence in the program. 

More recently, in a letter to Senators Ron Wyden (D-OR) and Mark Udall (D-CO), 

the Office of the Director of National Intelligence stated that it is ‘‘not reasonably 

possible’’ to determine how many people in the United States have had their communications intercepted and reviewed under this law. That answer is not satisfactory, and the public deserves better. 

Four years ago, supporters of the bill assured us that it would adequately protect 

the privacy of American citizens and other U.S. persons. They continue to make 

those assurances. But the reason the FISA Amendment Act included a four-year 

sunset is so that Congress can conduct meaningful oversight—and not merely rubber stamp an executive branch prerogative. 

The government can and must do a better job of responding to our questions 

about privacy and other civil liberties. It can do so without compromising national 

security or specific operations. I have no doubt that these programs are important 

to the executive branch, but Congress must have these answers before we can act 

responsibly. 

I look forward to the testimony of each of the witnesses today. 

17 

Mr. CONYERS. But I would hope that my dear friend, Bobby 

Scott, will not support Ben Franklin’s motto, take it too seriously, 

because we will end up in a worse situation than we are now. 

I yield back the balance of my time. 

Mr. SENSENBRENNER. I thank the gentleman. 

Let me say for those who have missed it, this is a rare chance 

to see bipartisanship in action. You have the Republicans supporting the Obama administration and the Democrats criticizing 

the Obama administration, and I hope that everybody in the room 

duly notes that. 

I would point out that since the FAA amendments of 2008 there 

has been no Federal court to my knowledge that has declared any 

part of the FAA amendments unconstitutional on Fourth Amendment grounds. There is a case where the Supreme Court has granted certiorari called Clapper vs. Amnesty International, but that is 

on the question of standing rather than on the question of alleged 

Fourth Amendment violations. 

That being said, it is now my pleasure to introduce today’s witnesses: 

Kenneth Wainstein is a partner in the law firm of Cadwalader, 

Wickersham & Taft, where his practice focuses on corporate internal investigations. He is also an adjunct professor at Georgetown 

Law School. Mr. Wainstein served as an Assistant U.S. Attorney in 

both the Southern District of New York and the District of Columbia. Later, he served as U.S. Attorney in D.C. And then was Assistant Attorney General for National Security. He has served as FBI 

Director Robert Mueller’s Chief of Staff and then as President 

Bush’s Homeland Security Advisor. Mr. Wainstein received his undergraduate degree from the University of Virginia and his law degree from the University of California at Berkeley. 

Marc Rotenberg is Executive Director of the Electronic Privacy 

Information Center, known as EPIC, in Washington, D.C., and is 

also an adjunct professor of law at Georgetown University Law 

Center. He has served on several national and international advisory panels and chairs the American Bar Association’s Committee 

on Privacy and Information Protection. He is a founding board 

member and former chair of Public Interest Registry which manages the .org domain. He is a graduate of Harvard College and 

Stanford Law School. 

Mr. Jameel Jaffer is Deputy Legal Director at the ACLU and Director of the ACLU Center for Democracy. He joined the staff of the 

ACLU in 2002. Before joining the staff of the ACLU, he served as 

a law clerk to Judge Amalya L. Kersey on the Court of Appeals for 

the Second Circuit and then to Judge Beverley McLachlin, the 

Chief Justice of the Supreme Court of Canada. He is a graduate 

of Williams College, Cambridge University, and Harvard Law 

School. 

Without objection, the witnesses’ statements will be entered into 

the record in their entirety, but I ask that you summarize your testimony in 5 minutes or less. And to help you stay within the time 

limit there are the green, yellow, and red lights before you, and I 

think you all know what they mean. 

I now recognize Mr. Wainstein. 

18 

TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, 

CADWALADER, WICKERSHAM & TAFT LLP 

Mr. WAINSTEIN. Chairman Sensenbrenner, Ranking Member 

Scott, Ranking Member Conyers, Members of the Subcommittee, I 

want to thank you for the invitation to appear before you today. 

Before getting into the intricacies of the FISA Amendments Act, 

it is important to remind ourselves about the national security 

threats and particularly the threat from international terrorism 

that this legislation was designed to address. 

Since the attacks of 9/11, we have been at war with al Qaeda and 

its terrorist affiliates around the globe, and we are making great 

progress against them. There are many reasons for that progress. 

But one development that has contributed significantly to that 

progress has been Congress’ decision to modernize our national security surveillance efforts with the passage of the FISA Amendments Act in 2008. 

In considering the FAA’s reauthorization, we also need to remember why it was that it was necessary to modernize the Foreign 

Intelligence Surveillance Act in the first place. As you know, FISA 

was passed in 1978 establishing the Foreign Intelligence Surveillance Court, or FISA Court, and requiring that any electronic surveillance of foreign powers or their agents must first be approved 

by that Court. 

In crafting this law, however, Congress recognized that it had to 

balance the need for a judicial review process for domestic surveillance against the government’s need to freely conduct surveillance 

overseas. It accomplished that objective by clearly distinguishing 

between surveillances directed against persons located within the 

United States, where constitutional protections apply, and those directed against persons outside the United States, where the Fourth 

Amendment does not apply. 

In identifying those targets that would fall within the statute 

and could therefore be surveilled only after the government puts together a voluminous application and obtains a court order from the 

FISA Court, the FISA statute laid out a number of factors the 

FISA Court and the government should look at, including the type 

of communications technology that the target was using, whether 

he was communicating by wire—a cable—or by satellite transmission. The result was a carveout from the court approval process 

for surveillances that targeted communications that were being 

made from overseas locations. 

With the change in technology over the intervening years since 

1978, however, that carveout has started to break down and the 

government found itself expending significant manpower generating FISA Court applications for surveillance against persons outside the United States. As a result, the government was unnecessarily expending significant resources and was increasingly forced 

to make tough choices regarding surveillance of worthy 

counterterrorism targets. 

To its enduring credit, Congress recognized that this situation 

was untenable in a post-9/11 world; and after more than a year of 

careful consideration it passed the FAA, which did three critical 

things. 

19 

First, it authorized the FISA Court to approve surveillance of 

categories of non-U.S. person intelligence targets overseas without 

requiring the government to provide an individualized application 

as to each particular target, which brought the operation of FISA 

back in line with its original intent. 

Second, it established a multi-level system of oversight by the 

FISA Court, by Congress, and by various actors within the executive branch to ensure this authority would be exercised in full compliance with the law and the Constitution. 

And, third, it significantly added to the protections for U.S. persons by imposing the requirement for the very first time that the 

government seek and obtain an individualized order from the FISA 

Court whenever it seeks to conduct overseas intelligence collection 

on a U.S. person while that U.S. person is outside the United 

States. 

In sum, the FISA Amendments Act was a particularly well calibrated piece of legislation. 

With the FAA set to expire at the end of this year the Administration has strongly urged Congress to reauthorize the legislation. 

In supporting the Administration’s call for reauthorization, I ask 

Congress to focus on the three considerations that have been the 

focus of my remarks here today: One, the vital importance of the 

FAA surveillance authority to our counterterrorism efforts; two, the 

extreme care with which Members of Congress considered, crafted, 

and limited that authority when they passed the FAA 4 years ago; 

and, three, the representations by the executive branch that that 

authority has been implemented to great effect and with full compliance with the law and the Constitution. 

In addition, we must also focus on one other important consideration, which is the severity of the terrorist threat we still face 

today. While we have certainly weakened them in many ways, our 

terrorist adversaries are still intent on inflicting damage and death 

on the United States and its people. Given that reality, now is not 

the time to rest on our accomplishments, to weaken our defenses, 

or to scale back on a critical intelligence authority. To the contrary, 

now is the time to redouble our efforts, to press the advantage that 

we have gained, and to reauthorize the statute that has done so 

much to protect our people and their liberties over the past 4 years. 

Thank you for giving me the opportunity to speak about this important matter. I look forward to answering any questions you may 

have for me. 

[The prepared statement of Mr. Wainstein follows:] 

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Mr. SENSENBRENNER. Thank you, Mr. Wainstein. 

Mr. Rotenberg. 

TESTIMONY OF MARC ROTENBERG, PRESIDENT, 

ELECTRONIC PRIVACY INFORMATION CENTER (EPIC) 

Mr. ROTENBERG. Mr. Chairman, Members of the Committee, 

thank you very much for the opportunity to testify today. 

My name is Marc Rotenberg. I am Director of the Electronic Privacy Information Center. We are a nonpartisan research organization very much concerned about the government’s use of electronic 

surveillance authority. 

I am also the former chair of an ABA committee that looked at 

reform of the Foreign Intelligence Surveillance Act shortly after 9/ 

11. The committee was fully aware of the threats to national security to our country and considered certainly the essential purpose 

of the FISA to enable the collection of important foreign intelligence information. 

The committee made three recommendations to also ensure the 

protection of important privacy interests and constitutional interests of U.S. persons: Suggesting first that Congress had a critical 

oversight role to play—and in that spirit we are grateful for the 

hearing today; secondly, that data collection be focused so as to 

protect constitutional interests; and, third, I think of particular interest to the Committee this morning is a recommendation that the 

public reporting requirements for the use of the Foreign Intelligence Surveillance Act be expanded so that information would be 

available to the public on the use of FISA similar to the information that is available for the use of Title III criminal wiretap warrants. And my testimony this morning really focuses on the need 

to promote this type of transparency and accountability in the use 

of FISA authority. 

Now, you may be aware that the administrative office of the U.S. 

courts publishes an annual report. It runs almost 200 pages. It details the use of wiretap authority in the United States for criminal 

investigations. It provides a great deal of information about the 

cost, about the effectiveness, about the jurisdictions that are using 

wiretap authority, as well as the number of incriminating and nonincriminating communications that are gathered. 

Most critically, this report, which has been produced every year 

for over 30 years, provides only statistical data. It does not implicate any particular investigation. It does not reveal any details 

about ongoing investigations. It does, however, provide a basis for 

the public and for the Congress to evaluate the effectiveness and 

the use of electronic surveillance in criminal investigations. 

The ABA recommended in 2033, and EPIC very much supports 

the view, that in your consideration of the FISA Amendments Act 

there should be greater public accountability for the use of these 

wiretap authorities. There is simply too little known today by the 

American public about the circumstances under which FISA authorities are used. And the problem has become somewhat worse 

because one of the key changes that was made in the FISA Amendments Act of 2008 was to authorize the use of warrants for categories of targets rather than particular individuals, raising significant constitutional questions but also calling into question the very 

28 

minimal reporting that currently takes place under the Foreign Intelligence Surveillance Act. 

In our testimony, we suggest that a number of the internal procedures that have been established which provide from the Attorney General and from the Director of National Intelligence reports 

to you about the use of section 7 of the Act could be presented in 

such a way that they could be made available to the public with 

simply the statistical data about the use of the 702, 703, and 704 

authorities. We think if this information were made available then 

the public would have more confidence about the use of FISA authority. 

Now, Mr. Jaffer is going to speak in a moment, I know, about 

the case Clapper vs. Amnesty, which the Chairman mentioned a 

moment ago. The question that arises in that case is whether the 

American public has a well-founded fear that the FISA authorities 

might be misused, that they might be subject, in fact, to unlawful 

surveillance. 

I think we have to say at this point without better public reporting we simply do not know. We simply do not know the circumstances under which FISA authorities are used. So we would 

recommend enhanced public reporting. We have additional suggestions as well that we think would improve oversight and transparency for the FISA Court of Review. There are checks there in 

the reporting to Congress, but the reporting to the public at this 

point is simply inadequate, and we would urge you to consider 

those changes before reauthorization. 

Thank you. 

[The prepared statement of Mr. Rotenberg follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

Mr. Jaffer. 

TESTIMONY OF JAMEEL JAFFER, DIRECTOR, CENTER FOR 

DEMOCRACY, AMERICAN CIVIL LIBERTIES UNION (ACLU) 

Mr. JAFFER. Chairman Sensenbrenner, Ranking Member Scott, 

thank you for inviting me to share the ACLU’s concerns about the 

FISA Amendments Act. 

We urge you not to reauthorize the Act in its current form and 

not to reauthorize the Act in any form until the government discloses more about how the Act has been used. In essence, this Act 

allows the dragnet surveillance of Americans’ international communications. Although it bars the government from intentionally targeting people who are overseas—inside the United States, it places 

virtually no restrictions on targeting people overseas, even if those 

targets are communicating with U.S. citizens and residents. 

The Act’s effect is to give the government nearly unrestricted access to Americans’ international phone calls and emails. It permits 

the government to acquire those communications without requiring 

it to specify the people or facilities to be monitored, without requiring it to comply with meaningful limitations on retention, use, and 

dissemination, and without requiring it to obtain individualized 

warrants or even to make prior administrative determinations that 

the targets of government surveillance or foreign agents are connected in any way to terrorism. 

The technology is more advanced now, but the Act authorizes 

what the framers would have described as general warrants. A single surveillance order can be used to justify the monitoring of millions of communications. It can authorize the acquisition of all 

phone calls to or from a country of foreign policy interest, Russia 

or Iran or Mexico, for example, including phone calls to and from 

U.S. citizens inside the United States. 

To engage in that kind of surveillance the government would 

need to target people outside the United States. But in targeting 

people outside the United States it would collect countless Americans’ private communications. 

The Act also has dramatic implications for the freedoms of 

speech and association. The experience of other countries shows 

that these freedoms whither in an environment in which government surveillance is unrestrained. Thirty-five years ago, the 

Church Committee warned that unrestrained government surveillance threatened to undermine our democratic society and fundamentally alter its nature. 

It would be irresponsible to disregard that warning. You should 

not reauthorize the FISA Amendments Act without prohibiting the 

dragnet surveillance of Americans’ communications and more narrowly restricting the circumstances in which those communications 

can be retained, used, and disseminated. 

And you should not reauthorize the Act in any form without first 

requiring the government to make public more information about 

its interpretation and use of the Act. The government has not disclosed its legal memos interpreting the Act, nor has it disclosed 

even in part any relevant opinions issued by the FISA Court. It has 

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eral have invoked the Act, the number of Americans who have been 

unlawfully targeted, or the number of Americans whose communications have been collected in the course of surveillance nominally directed at people overseas. 

Now, some of that information has been made available to some 

Members of Congress and the FISA Court, but there is no reason 

why this same information, redacted to protect intelligence sources 

and methods if necessary, should not be made available to the public and to all Members of Congress. The public surely has a right 

to know how the government interprets its surveillance authorities, 

and it has a right to know at least in general terms how those authorities are being used. 

Further, Congress cannot responsibly reauthorize a surveillance 

statute whose implications for Americans’ privacy the executive refuses to explain. The little that we do know about the executive’s 

use of the Act is troubling. Records obtained by the ACLU show 

that the Act has been violated repeatedly. The New York Times reported in 2009 that the NSA had intercepted private email messages and phone calls of Americans, quote, on a scale that went beyond the broad legal limits established by Congress. 

We strongly urge Congress not to reauthorize the Act in any 

form without first requiring the government to disclose more information about how the Act has been interpreted and used. 

Thank you again for giving me this opportunity, and I look forward to hearing your questions. 

[The prepared statement of Mr. Jaffer follows:] 

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Mr. SENSENBRENNER. I want to thank all of the witnesses for 

staying within the 5-minute time limit. 

The Chair will withhold his questioning and will start by recognizing the Chairman from California, Mr. Lungren, for 5 minutes. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Jaffer, do you have a problem with the FISA Court’s competence in reviewing on an annual basis the procedures that are 

used by the intelligence community to conduct these programs, that 

is, that the programs have an annual review? 

Mr. JAFFER. I do not think the question is one of competence. I 

think the question is one of the Court’s jurisdiction and the Court’s 

mandate. And here the question is, has the Court given—has the 

Court been given the authority to actually ask the government why 

it is engaged in this kind of surveillance, who its targets are, what 

kinds of communication—— 

Mr. LUNGREN. So your question is you do not know whether that 

is the case or you believe that that is not the case? 

Mr. JAFFER. I don’t think there is enough public information to 

know anything about the way the Court has acted or—— 

Mr. LUNGREN. So your statement that there is a failure to have 

an auditing process of the procedures they use that then leads you 

to talk about this being a dragnet is based on lack of sufficient information in the public domain to make that judgment, is that correct? 

Mr. JAFFER. Well, there are two things. There is the statute itself 

which authorizes this kind of dragnet surveillance, and the Obama 

administration has not disagreed with that. 

Mr. LUNGREN. I do not think they call it ‘‘dragnet’’, but go ahead. 

Mr. JAFFER. Well, they did not use that word, but they did say 

that this statute can be used for nonindividuals—— 

Mr. LUNGREN. What I was trying to understand is you said there 

is no auditing process. In fact, there is a requirement that the 

Court must review these programs—these specific programs on an 

annual basis in addition to the specific applications that are requested by the Court in particular cases. 

Mr. Wainstein, could you reflect on that, based on your prior experience? 

Mr. WAINSTEIN. The competence of the Court, sir? 

Mr. LUNGREN. Yeah. And whether they do in fact ask these kinds 

of questions. I mean, I could tell you what I know from classified 

briefings and what we have seen, but your experience on that. 

Mr. WAINSTEIN. Thank you for the question, sir. 

I was the Assistant Attorney General for National Security and 

so I was sort of on point with my folks in dealing with the FISA 

Court for the time I was in that position, and I can tell you from 

personal experience they are very active. They are Federal judges. 

They are used to asking questions and getting answers to those 

questions. And they take their responsibility very seriously—their 

responsibility being their oversight responsibility. 

So when you go in—I mean, there are routine orders that you 

apply for and get, and that is just sort of like any Federal judge 

who issues search warrants. They base their decision on the facts 

that you present to them. But they also have the broader purpose 

54 

of making sure that the program is being run responsibly, and they 

ask the tough questions. 

And I cannot speak from personal experience about their oversight under the FAA, because that happened after I moved out of 

that position, but I can tell you, knowing those judges, that they 

are being very aggressive in asking the questions about making 

sure that the targeting procedures are well designed and they are 

being well applied to minimize the instances where there might be 

mistakes and people within the United States end up getting swept 

into that. 

Mr. LUNGREN. And, Mr. Rotenberg, it is a fact that those of us 

in Congress who serve on the Judiciary Committees and the Intelligence Committee have the ability to look at the documents and 

the decisions made by the Court, both in terms of the general review of programs and any decision made by the Court that has a 

significant legal issue. Is your problem that that is limited to just 

those Members of Congress—although I believe if another Member 

of Congress asked the Chairman of either Intelligence or Judiciary 

it would be up to the Chairman of either of those Committees to 

make that decision. But is it your objection that that is too limited 

and that those of us on these Committees either do not have the 

competence or that it should be expanded, that other Members 

have it, or that the public should have that information as well? 

Mr. ROTENBERG. Well, I think it is the latter, Mr. Lungren. I 

mean, clearly, it is an important oversight mechanism that you do 

have access to this information, and we fully support that. But we 

also do think that the public could be provided with statistical reports. It is something that has been done routinely over the years 

for Title III. 

And going back, of course, to the history of the warrantless wiretapping program, part of the reason that the oversight mechanism 

broke down and the FISA Court itself was not informed about the 

activities the government was engaged in, because there were not 

enough routinized reports that were put in place. 

So we are certainly not questioning the competence of the Court 

or the oversight committees. We are saying that this additional 

safeguard that would give the public the opportunity to have a general picture of this very important government function would be 

helpful. 

Mr. LUNGREN. I appreciate that, and I understand the different 

positions here. I would just stress that this is an independent 

Court. It is made up of regularly sitting Federal judges. There is 

a review Court as well, and those of us in the Congress who serve 

on these Committees have access to any major decision made by 

the Court as well as these annual reviews done by the Court. 

Mr. SENSENBRENNER. The time of the gentleman is expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Mr. Jaffer, you indicated that you could target emails if they are 

sent overseas. You can pick up emails anywhere. How do you know 

that an email has been sent overseas? 

Mr. JAFFER. Thank you for the question. 

So this is actually one of the questions that I think Congress 

should try to get to the bottom of. Because it really is a concern 

55 

that the Act forecloses the government from targeting people who 

are known to be in the United States. In a lot of instances, you do 

not know. You do not know where a person is. You do not know 

where the communication is coming from or going to. And under 

this statute the government has the authority to pick up those 

kinds of communications. That is one of our concerns about the Act. 

Mr. SCOTT. You talked about nonindividualized as technology allows you to get a whole lot of information. Should there be a difference between getting information and then what you do with it 

after you get it, what sort, select and search kind of things? 

Mr. JAFFER. Absolutely. I think that is exactly—you have to divide this into two questions. There is a front-end question of what 

the government should be permitted to pick up in the first instance, and then there is a back-end question about what the government can do with what it has picked up. 

I think on the front end—and this goes to Mr. Lungren’s questions, too—it is important to recognize that the Court’s role here 

is very, very limited. This is not like a search warrant—a traditional search warrant process in which the Court is presented with 

evidence about a particular target, some justification for wiretapping that target. 

This is a system in which the FISA Court reviews broad programs. The only question that the FISA Court asks is whether the 

program as a whole has as its significant purpose gathering foreign 

intelligence information and whether the targets are overseas. But, 

again, targets overseas very commonly speak to people inside the 

United States, and it is those communications that we are worried 

about here. 

Mr. SCOTT. Well, you said ‘‘the’’ significant purpose. It is ‘‘a’’ significant purpose. In response to a question I asked the former attorney general, it is just a significant purpose and not the primary 

purpose, what could the primary purpose do. And we have some of 

these joint task forces where you may have an intelligence official 

sitting up there and others who are restrained by criminal warrant 

standards where they need real probable cause that a crime is 

being committed in evidence and the foreign intelligence standard 

which means that it is relevant to foreign intelligence which could 

be about anything. 

In response to a question, what could the primary purpose be if 

it is not foreign intelligence, you said it could be a criminal investigation, which means you are doing a criminal investigation on a 

much different standard. Should we change a significant purpose 

back to the primary purpose, the way it was before the early 

2000’s? 

Mr. JAFFER. I think that that would be a great thing to do. 

I think that there are a few other things that you should consider doing as well. One is foreclosing dragnet surveillance of 

Americans’ communications, and there are a variety of ways to do 

that, and a variety of proposals have already been made. 

And then the other is—and you were alluding to this, Mr. Scott— 

strengthening the minimization requirement. So even if Congress 

decides that it is in the interest of the country to give the government unfettered access to Americans’ international communications 

in the first instance, there is still the question what can the govVerDate Aug 31 2005 09:32 Sep 19, 2012 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\053112\74415.000 HJUD1 PsN: DOUGA
56 

ernment do with those communications once acquired, and there 

are ways to strengthen minimization to ensure that Americans’ privacy is protected. 

Mr. SCOTT. Thank you. 

Mr. Wainstein, you indicated the comparison between in FISA 

Courts the search warrants and how the Court has to go through 

a process. The difference between search warrants in a criminal 

case and the FISA warrant is that search warrants eventually become public so the public can see what is going on. What kind of 

information should be made available to the public so that we can 

have confidence that the program is being run appropriately? 

Mr. WAINSTEIN. Ranking Member Scott, that is a very good question. And the concern about transparency and public knowledge of 

any national security program is a very serious concern. Because 

the more knowledge the public has the more confidence they have 

that an authority is being responsibly exercised. So that is an important concern. 

I will say that when it comes to FISA Court operations they are 

the most sensitive of the sensitive operations in our national security apparatus. And, recognizing that, FISA, the statute itself, decided appropriately to give that insight into—for Congress. So Congress gets reports on a regular basis about all the orders that are 

issued by the FISA Court, can ask questions about the program, 

can bring members of the executive branch up and quiz them 

about, in closed session, about classified information. And that is 

the balance. That is the balancing that provides the representatives of the people with insight into a very classified world but also 

does not divulge important secrets. 

Mr. SENSENBRENNER. Okay. Thank you very much. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, sir. 

I think our discussion so far this morning brings us to this issue: 

Can and should we get more information in the process of reauthorizing FISA? And with the exception of the former attorney general of California on the Committee I think everybody that I have 

heard thinks that there is nothing wrong with getting a little bit 

more information so that we know what is happening. Would you 

say that is a fair opinion to hold at this point, Mr. Wainstein? 

Mr. WAINSTEIN. I would say in theory, as a matter of principle, 

more information to the public is better, all things being equal. 

However, in this area where you are talking about intelligence officials coming into the FISA Court, laying out the most sensitive information about sources and methods—— 

Mr. CONYERS. Well, we did not say—I do not want to do that either. So I agree with you. We do not want to throw out sensitive 

information. That is why I said this is a somewhat tricky sensitive 

kind of a discussion we are having. Let us agree that we do not 

want to do that, and I would never rationalize doing it. 

What do you think, Mr. Rotenberg? 

Mr. ROTENBERG. I think it is a very good approach, Mr. Conyers. 

If nothing else, it will give us more information to evaluate the effectiveness of the program. Certainly in looking at the annual wiretap report we get very useful information. It shows us strengths 

57 

and weaknesses and where government authorities maybe need to 

be enhanced, and I think that would help here. 

Mr. CONYERS. After all, we want to improve the laws. I know you 

are very generous in your compliments about the Congress acting 

on this originally. But for goodness sake, just to okay it again because we did it before—couldn’t we improve it a little bit? 

What about minimization, Mr. Jaffer? Doesn’t that require a little more carefulness? 

Mr. JAFFER. I think it does, Mr. Conyers. 

The way that minimization works right now, the government is 

required to minimize only insofar as the information obtained is 

not foreign intelligence information. But foreign intelligence information is defined extremely broadly. And so anything—any communication about, for example, foreign affairs is one that the government under the statute can disseminate. 

And Americans talk about foreign affairs all the time, over the 

phone, in emails. And I think it is unacceptable to say to Americans that when you are communicating about foreign affairs in an 

email that is something that the government can have access to, 

even if you have never done anything wrong and even if the person 

you are talking to is not believed to have done anything wrong. 

But, Mr. Conyers, if I could just say one more thing about the 

transparency point that you raised. There is precedent for the release of FISA Court opinions with redactions. The FISA Court released an opinion in 2002 about the significant purpose amendment. The FISA Court of Review released an opinion in 2003 about 

that same amendment. In 2008, the FISA Court of Review released 

another opinion about the Protect America Act. 

So there is precedent for the release of legal reasoning in these 

opinions with the redaction of legitimate sources and methods, and 

I think everybody is in agreement that some information in these 

opinions is likely to be sensitive and the government has a legitimate interest in keeping that information secret. But it is a different story when what the government is keeping secret is legal 

reasoning. 

Mr. CONYERS. Professor Rotenberg, let me close with this observation. We have been told that we cannot even tell how many people are being subjected to this process located in the United States 

and that we do not know and they cannot tell us. And I think we 

could get a little bit closer. There could be some reasonableness 

there to give—— 

You know, it is this kind of vagueness that creates in those of 

us in the Congress suspicions that are negative rather than suspicions that are positive. We do not know and we cannot be told 

basic information like this. 

Mr. SENSENBRENNER. The gentleman’s time is expired. 

Mr. CONYERS. Do you mind if he responds? 

Mr. SENSENBRENNER. The witness will respond. 

Mr. ROTENBERG. Well, I agree of course, Mr. Conyers. 

As I said in my statement, I think when you create authorities 

for the government you need to create a counterbalance of oversight. And the problem with the FISA Amendments Act of 2008 

that actually went quite far with new surveillance authorities, in 

58 

our view, these means of public oversight do not match the authorities. 

Mr. SENSENBRENNER. The gentlewoman from California, Ms. 

Chu. 

Ms. CHU. Thank you, Mr. Chair. 

Mr. Jaffer, in your testimony you mentioned the New York Times 

article which revealed that the National Security Agency had intercepted private emails and phone calls of Americans. You stated 

that the ACLU had obtained records showing that agencies conducting surveillance under FAA have improperly collected, retained, or disseminated U.S. persons’ communications. Could you 

talk more specifically on the kinds of information that the ACLU 

obtained? 

Mr. JAFFER. Sure. Thank you for the question. 

The ACLU filed Freedom of Information Act litigation a few 

years ago to find out how the statute had been implemented. And 

all of the records are now—we have made them available on our 

Web site. But the records show, among other things, that the government has repeatedly violated minimization and targeting rules, 

and at least some of those violations resulted in the collection of 

Americans’ communications. There have also been violations of the 

targeting restriction against directing surveillance in Americans. 

So, in some cases, Americans have been targeted inappropriately 

and unlawfully. 

There was also at least one occasion in which the FISA Court apparently got so frustrated with the executive’s repeated violations 

of the Act that the Court ordered the Justice Department to provide reports every 90 days to explain compliance issues. 

On the one hand, I think that is a sign that the FISA Court 

sometimes does have the authority to do what we want it to do. On 

the other hand, it raises real concerns about whether we can trust 

the executive branch to police these limitations; and I think that 

we have at least enough information now to warrant Congress asking more questions and certainly to warrant pausing before reauthorizing the statute in its current form. 

Ms. CHU. Do you believe that there is any legislative remedy to 

this—to address the fears that Americans have that they are being 

subjected to warrantless surveillance? 

Mr. JAFFER. Absolutely. I think that when this Act was first proposed by the Bush administration the main problem that the Bush 

administration identified was that they believed that they could 

not wiretap foreign-to-foreign communication—so communications 

between non-U.S. persons—without getting a warrant, because 

some of those communications were running through the United 

States. 

And nobody is making the argument that we should revert to a 

world in which the government has to get a warrant for those 

kinds of communications. What we are talking about is something 

relatively narrow here. What we are asking for is a fix that prevents the government from engaging in suspicionless dragnet surveillance of Americans’ international communications, and there 

are a variety of ways in which Congress could make that fix. 

Ms. CHU. Mr. Rotenberg, how rigorous is the certification process 

of the Attorney General and the Director of National Intelligence 

59 

regarding the authorization of a surveillance program under Title 

VII of FISA? Has the FISA Court ever rejected an application 

under Title VII? 

Mr. ROTENBERG. Well, that is a very good question, Congresswoman, and I could not answer because the information is not 

made available to the public. 

There are statutory provisions as to the contents of the report 

that are made available to your Committee. But here is the information that is made available to the public about the use of the 

Foreign Intelligence Surveillance Act. It is a two-page letter. It is 

sent at the end of April every year from the Attorney General to 

the Speaker and to the President of the Senate. And this is what 

we know about the use of FISA authority. 

So in recommending that more information be made available to 

the public about the use of FISA we are suggesting in part it would 

make it possible to evaluate the adequacy of the oversight techniques. 

They may be working, by the way. I am not suggesting that 

there is a competency or a systemic problem here. But you see it 

is a small number of people that have access to this information 

and it takes time to evaluate. 

Ms. CHU. In exigent circumstances the FAA allows the government to conduct electronic surveillance for 7 days without even 

making an application to the FISA Court. What is the standard for 

exigent circumstances and who gets to decide when that standard 

applies? 

Mr. ROTENBERG. Well, I mean, that is also set out in the statute, 

and that is actually consistent with other provisions in similar surveillance authorities. 

So certainly there will be circumstances, for example, where the 

government needs to undertake a search. It believes that it does 

not have time to obtain the Court authority. It can go forward with 

the search. But it is quite important, actually, that the statute requires the government to come back later and make the application 

that is required; and if they cannot get approval for the application, 

then the surveillance activity is suspended. And, again, the requirements for that are set out in the statute. 

Ms. CHU. Thank you. I yield back. 

Mr. SENSENBRENNER. The gentleman from Colorado, Mr. Polis. 

Mr. POLIS. Thank you, Mr. Chairman. 

My question is for Mr. Jaffer. The first question, in your testimony you mention your concern that the Administration is conducting ‘‘bulk collection’’ of American communications. I was hoping you could explain that term and kind of the evidence that you 

have that this is occurring. 

Mr. JAFFER. Well, when the Bush administration proposed the 

statute, they explained that one purpose of the statute was to allow 

for bulk collection, meaning nonindividualized collection. In that 

kind of situation, the government does not go to the Court and say 

we want to target this specific person. Instead, it goes to the Court 

and says we want to target people overseas generally. Maybe we 

want to target everybody in this particular city or we want to target everybody in this particular country. 

60 

Mr. POLIS. So, to be clear, they could be like every email from 

Karachi or something like that, hypothetically. 

Mr. JAFFER. Or Mexico, right, absolutely. 

Mr. POLIS. And do you have any evidence that this is occurring? 

Mr. JAFFER. Well, this is something that came up in Clapper vs. 

Amnesty, the case that we are litigating right now, involving this 

Act. And the Administration was asked this question—the Obama 

administration was asked this question by the Southern District 

and then again by the appeals court. And the Administration had 

an opportunity to say that this is not how the Act is being used, 

and it declined to take that opportunity. 

Mr. POLIS. Now, presumably, if used for bulk collection, there 

would be enormous amounts of resulting data. Do we—or is there 

any public knowledge about how that data might even be gone 

through or what safeguards might be in place to prevent inappropriate use of personal data unrelated to a threat from that data? 

Mr. JAFFER. Well, we have the statute, and the statute does lay 

out in broad terms what safeguards have to be put in place. And 

our concern is that those safeguards are too weak. 

One of the concerns is that the definition of foreign intelligence 

information is so broad that minimization applies only to a subcategory of the most sensitive information. And the result is that 

Americans’ communications about things like foreign affairs can be 

disseminated, analyzed, retained forever without really any other 

safeguard. 

And that is a concern not just from a privacy standpoint but from 

a First Amendment standpoint as well. Because, as I said in my 

introductory remarks, this kind of surveillance has a chilling effect 

on activity that is not just protected but is sort of necessary to our 

democracy. 

Mr. POLIS. Now, many proponents also say that any issues that 

arise under it can be dealt with by Federal judges who actually approve the FAA applications, and I wanted to question you about 

how effective that has been. How effective has the role of Federal 

judges been in administering the FAA and are there any specific 

recommendations for improving the ability of judges to administer 

the FAA? 

Mr. JAFFER. Thank you for that question. I think that is an important question. 

So I guess there are two separate parts of this. One is the FISA 

Court itself. And I think, as Mr. Rotenberg has pointed out, part 

of the problem is we do not know precisely what is going on or even 

in the most general terms what is going on in the FISA Court. And 

we think it is important that some of the FISA Court opinions relating to the FAA be released, at least in redacted form. 

But then—and this goes to something that Chairman Sensenbrenner said right at the beginning—it is true that no other Federal Court has weighed in on the constitutionality of the FAA and 

no Court has found any provision of the FAA to be unconstitutional. But that is because the Administration, first the Bush administration now the Obama administration, have insulated the 

FAA from judicial review. And they have done that by saying to 

plaintiffs that the only people who can challenge this kind of surveillance are people who can show that their own communications 

61 

have been monitored. And obviously nobody can show that their 

own communications have been monitored, because that is not information that the Administration has released. 

So you are in this situation where this extremely far-reaching 

surveillance statute, definitely the most far-reaching surveillance 

statute ever enacted by Congress, is essentially beyond the reach 

of the courts, and that I think is a problem in itself. 

Mr. POLIS. And I think from your description it sounds like one 

of the issues is there is insufficient standing to bring it to Federal 

Court. So one legislative improvement might be to define standing 

in such a way that you do not have to know something that by its 

very nature you do not know about yourself. So there might be others or some that therefore have standing to get it to Federal Court. 

Is that the issue you identified? 

Mr. JAFFER. I think that would be an improvement to the law. 

That said, we believe we have standing in the case that we are 

litigating before the Supreme Court, and the Second Circuit agreed 

with us. 

Mr. POLIS. But you believe that there is still this issue with regard to standing; and, as you said, it is something by very nature 

people do not know about themselves would be the ones who would 

have to object. 

Thank you, and I yield back. 

Mr. SENSENBRENNER. The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. With respect to the Director of National Intelligence, what is the relationship between that office and the 

other—I believe it is—what—26 intelligence-gathering agencies 

within the U.S. Government? What is the relationship, Mr. 

Wainstein. 

Mr. WAINSTEIN. Well, Congressman Johnson, the Office of the 

Director of National Intelligence was established sort of to be the 

‘‘quarterback of the intelligence community’’ so the DNI, the Director of National Intelligence, sets the requirements for the Intelligence Community, the collection requirements, and provides oversight in a number of ways. And in this particular process the DNI 

plays a critical role, because, as you know, the Director of National 

Intelligence and the Attorney General have to jointly certify to 

these collections and certify that they are being done legally and 

constitutionally. 

Mr. JOHNSON. Certainly. But DNI is pretty much the quarterback for all of the other intelligence agencies within the Federal 

Government. How many are there, about 26 of them? 

Mr. WAINSTEIN. Sixteen, right? I am forgetting, but I want to say 

16. 

Mr. JOHNSON. Sixteen, okay. That might be good. 

But now the process is—16? 

Mr. WAINSTEIN. I am getting nods from the audience, 16. 

Mr. JOHNSON. The process is that the intelligence community 

uses or the tools that are used to conduct surveillance are products 

from defense contractors and intelligence agency contractors; is 

that correct? 

Mr. WAINSTEIN. A lot of the technology is worked on by contractors as well as people within the intelligence community, yes. 

62 

Mr. JOHNSON. And I suppose there are some firewalls between 

the various intelligence agencies, but perhaps not. What do you 

think about that? 

Mr. WAINSTEIN. Firewalls for the passage or the conveying of information? 

Mr. JOHNSON. Yes. 

Mr. WAINSTEIN. Actually, one of the major efforts since 9/11 has 

been to take down the stovepipes and the walls between these different agencies. And there are—obviously, for sensitive information 

there are limitations on dissemination, et cetera. But the focus of 

the DNI has been to try to make sure that everybody gets the information they need to do their job. 

Mr. JOHNSON. Certainly. 

Well, tell me this now. Does the intelligence community have the 

technological capacity to identify Americans based upon the content 

of their electronic communications? 

Mr. WAINSTEIN. That is actually a very good question; and, obviously, I can’t get into classified techniques that they use to identify 

communicants—— 

Mr. JOHNSON. But they do have that capability, wouldn’t you 

agree? 

Mr. WAINSTEIN. My understanding is they have the capability to 

an extent. 

But keep in mind when you try to identify a communication like 

a telephone call, just in our own experience, you look at—you 

know, if you try to figure out whether the person is American or 

not you might look at the phone number, you might try to ask the 

person on the phone. I mean, you might listen to the content to determine whether they are talking about being overseas or not. 

There is not sort of one set of indicia that definitively identifies 

every communication being overseas. 

Mr. JOHNSON. I have a hard time getting a good answer for that 

question. 

Tell me, what I would assume that we do have the ability to 

identify Americans based upon the content of their electronic communications. I would assume that we would be able to do that. But 

I can’t get anyone to admit that we do have that capability, not 

that we do it but we have the capability, and that causes me a lot 

of suspicion. 

And I tell you, with the Chamber leaks problem that came out 

a couple of years ago, where a couple of defense contractors were 

making a proposal to the U.S. Chamber of Commerce to use information gleaned from these processes that they have developed to 

spy on and disrupt and destroy opponents of the U.S. Chamber of 

Commerce, I am concerned about that. 

I am concerned about the recent USA Today situation where reporters reporting on a defense contractor engaged in propaganda 

actions. We are targeted by persons in that company, in that defense company. Subcontractor. 

Mr. Jaffer, how would you add to this. 

Mr. JAFFER. Mr. Johnson, I think that you are absolutely right 

to be worried about the way that these powers will be used. If you 

look at the way that similar powers were used before FISA was enacted, there were all kinds of abuses. There were Members of ConVerDate Aug 31 2005 09:32 Sep 19, 2012 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\053112\74415.000 HJUD1 PsN: DOUGA
63 

gress who were wiretapped. There were journalists who were wiretapped. There were Supreme Court justices who were wiretapped. 

There was a Member of Congress whom the NSA sought to wiretap 

in 2006 or 2007. That is in the same New York Times story that 

we referred to earlier. 

I think that history shows us that these kinds of broad surveillance powers can and will be abused, and that is part of the reason 

why you need to set out limits now to make sure that that doesn’t 

happen. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Tennessee, Mr. Cohen. 

Mr. COHEN. Thank you, sir. 

I want to follow up with the article. I must have missed that one. 

You say it revealed that they had been listening in on conversations of judges. 

Mr. JAFFER. That Church Committee report—yes, the Church 

Committee report goes into some detail about that. That was back 

in—— 

Mr. COHEN. The ’70’s. 

Mr. JAFFER. That is right. 

Mr. COHEN. We don’t have any knowledge of any current? 

Mr. JAFFER. No. 

Mr. COHEN. Okay. I tuned in a little late, and 40 years is a long 

time. 

Mr. JAFFER. No. The current evidence is of wiretapping a Member of Congress, and all I know about that is from the Eric 

Lichtblau story that several of us have already referred to. 

Mr. COHEN. And who was the Member? 

Mr. JAFFER. I don’t know. 

Mr. COHEN. What was revealed about the purpose of which they 

wiretapped the individual or what they learned or was anything revealed? 

Mr. JAFFER. All I know is from that story. The story reports that 

a Member of Congress was traveling overseas somewhere in the 

Middle East and the NSA sought the authority to wiretap the conversations of that Member. I don’t know if they actually got that 

authority. There are just three or four sentences in the New York 

Times story. 

Mr. COHEN. How much is available for us to know about the 

dealings of the FISA Court as far as applications denied, basis for 

denial? Is any of that available? 

Mr. JAFFER. Almost nothing is available. The only thing that is 

available is this raw number, number of applications filed with the 

FISA Court and number of applications granted or denied. And 

even that number doesn’t break down between traditional FISA 

and the FISA Amendments Act. 

So you don’t know how many programs of surveillance have been 

authorized. You don’t know how many have been approved by the 

Court. You don’t know how broad those programs have been. You 

don’t know how many Americans have been wiretapped as a result. 

And you don’t know what has been done with the communications 

that have been acquired. So that all sorts of, in our view, crucial 

facts are still being withheld at least from the public. 

64 

And then, on top of that, there is this question of the legal authority. 

So this is a complicated statute, and there are legitimate questions about how it ought to be interpreted. We don’t know how the 

Obama administration is interpreting this statute, because it 

hasn’t disclosed even in redacted form the Office of Legal Council 

memos. And we don’t know how the FISA Court has interpreted 

the statute, because we don’t have, even in redacted form, the FISA 

Court’s opinions. 

I should have said this earlier, but there was a process put in 

place a couple of years ago by the Obama administration to declassify other FISA Court opinions, and there was a recognition on the 

part of the Obama administration at that time that more of these 

opinions needed to be released, that the public had a right to know 

more about how that Court was interpreting the law. 

Two or 3 years later, the result of that process is the release of 

no FISA Court opinions. We still don’t have anything out of that 

process, and it is not clear to us why nothing has come out of that 

process. It might be something that the Committee could consider 

looking into. 

Mr. COHEN. Thank you, sir. 

I yield back the remainder of my time. 

Mr. SENSENBRENNER. Before recognizing the gentleman from 

South Carolina, I notice that the gentlewoman from Texas, Ms. 

Jackson Lee, was in the room and stepped out, and I will recognize 

her following the conclusion of the gentleman from South Carolina’s questioning. But I intend to be the last questioner, so I would 

ask the Democratic staff, if she wishes to ask questions, to have 

her brought back in the room. 

The gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Jaffer, you made reference to the Clapper case. I don’t have 

my notes in front of me. What was the breakdown of the en banc? 

Mr. JAFFER. It was six-six on the en banc. In total, eight judges 

agreed that our plaintiffs had standing, and six disagreed. But two 

of the judges—— 

Mr. GOWDY. I thought it was six to six. It just threw me off when 

you said the Second Circuit agreed with you. I thought it was six 

to six, which some people claim ties as victories and some people 

don’t. I guess if you prevailed on the three-judge panel then you 

are entitled to claim victory of a six-six tie. 

Mr. JAFFER. It was three-zero on the panel, and the full Court 

decided not to rehear the case. There were actually eight judges, 

though, who agreed with us of the full Court. Two of them didn’t 

participate in the en banc. 

Mr. GOWDY. Well, let me see if you and I can agree on something. Does the Fourth Amendment apply to foreign targets in foreign lands? 

Mr. JAFFER. I don’t think that is the question presented by—— 

Mr. GOWDY. No, no, no. That is my question. So I promise you 

it is the right question, because that is my question. Does it apply? 

Mr. JAFFER. I don’t think it does. 

Mr. GOWDY. When you say you don’t ‘‘think’’ it does—— 

65 

Mr. JAFFER. Well, in the circumstances of this statute, I don’t 

think it does. We certainly haven’t made the argument that it does. 

Mr. GOWDY. Does the Fourth Amendment—I am not talking 

about a statute. I am talking about does the Fourth Amendment 

apply to foreign nationals in foreign lands? 

Mr. JAFFER. It does not. 

Mr. GOWDY. Does the Second Amendment apply? 

Mr. JAFFER. I don’t know the law, but I think no. 

Mr. GOWDY. The First? Eighth? 

Mr. JAFFER. I think it would depend on the circumstances. 

Mr. GOWDY. Women’s suffrage? Does that apply? 

Mr. JAFFER. No. 

Mr. GOWDY. That is my point. They don’t. So we are not talking 

about surveillance of foreign nationals in foreign lands, right? You 

don’t think there is a constitutional—— 

Mr. JAFFER.—American communications—— 

Mr. GOWDY. That is my second point. If you will let me get to 

it. If you will let me get to it. 

Professor Rotenberg was quoted—and it would not be the first 

time somebody’s been quoted incorrectly, so I am going to give you 

a chance to say if you were quoted incorrectly—that there was a 

constitutional problem with monitoring foreign targets, and I am 

trying to understand what that constitutional problem might be of 

foreign targets in foreign land. Or the third alternative is that you 

were quoted incorrectly. 

Mr. ROTENBERG. Well, Congressman, I am not quite sure of the 

context, but I am sure the concern I have was the constitutional 

problem was in the targeting of a foreign target in a foreign land. 

You would also acquire the communication of a U.S. Person. 

Mr. GOWDY. Which leads to my next question. In a domestic setting, Title III, where there is an unintentional interceptee, does 

that unintentional interceptee have standing? 

Mr. ROTENBERG. Probably not. I mean, there certainly wouldn’t 

be a suppression motion if the person is not the target. However— 

and this goes actually to my recommendation before the Committee—you would have a great deal of information about the percentage of communications in the course of an investigation that 

were non-incriminating. 

Mr. GOWDY. How do we handle the unintentional interception of 

conversations with non-targets in the Title III arena? 

Mr. ROTENBERG. Well, you do it both through minimization and 

also through the reporting of non-incriminating communications. 

Mr. GOWDY. But they don’t have standing—if it is an American 

citizen who is intercepted unintentionally on a domestic wire, they 

don’t have standing to challenge. 

Mr. ROTENBERG. I take your question. It is an interesting point. 

But you see, of course, if people in the United States became concerned that their government was engaging in routine surveillance 

of their private communications, they may well take steps to try to 

protect themselves. 

Mr. GOWDY. I am just asking you what the law is. 

Mr. ROTENBERG. I think you are asking a standing question. 

Mr. GOWDY. And the answer is, no, they don’t have standing. 

Mr. ROTENBERG. Well, I am not sure the answer is no. 

66 

Mr. GOWDY. Has any court held that they have standing? 

Mr. ROTENBERG. Well, I don’t think a court has answered the 

question. 

I mean, the Second Circuit, to the extent that it found in the 

Clapper case that there was standing based on the possibility of injury and the steps that the plaintiffs had taken to try to protect 

their communications, I think in fact they did find they had standing. 

Mr. GOWDY. I thought in the White case they found that unintentional interceptees of domestic wires do not have standing? 

Mr. ROTENBERG. I think in that case the parties did not engage 

in any activity to try to prevent that type of interception. 

That is the problem here. The problem is the government engaging in a surveillance activity with neither you nor me knowing if 

in fact we are a target. 

Mr. GOWDY. Which leads—Mr. Wainstein, you have been there 

before. We can’t make legislation by episode or anecdote. Is the 

government routinely targeting American citizens in foreign land 

and what protections are in place? 

Mr. WAINSTEIN. The answer is no. The statute says that the government, if it is going to target a U.S. person in a foreign land, 

based on the provision in the FAA for the first time the government actually has to notify the FISA Court and get an individualized FISA order. 

There is also a provision in the FAA that says you can’t reverse 

target, which means you can’t target somebody overseas with the 

real purpose of trying to get the communications from the person 

inside the United States that the person overseas is talking to. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The Chair, in the absence of the gentlewoman from Texas, Ms. 

Jackson Lee, will recognize himself as the last questioner. 

Mr. Wainstein, I think that we have already established that the 

Fourth Amendment does not apply to foreign targets overseas. You 

agree with that. 

Mr. WAINSTEIN. I agree with that. 

Mr. SENSENBRENNER. What is the difference between probable 

cause as it applies to Title I for FISA and the requirements for foreign surveillance approval in Title VII of the FAA? 

Mr. WAINSTEIN. Well, under FISA, regular FISA, traditional 

FISA, you have to establish probable cause that the target is a foreign power or an agent of a foreign power; and you have to lay evidence of that out in an application to the FISA Court. The FISA 

Court has to find probable cause of that showing, which is different 

from the probable cause you have to show in Title III criminal contacts. 

Mr. SENSENBRENNER. That was my next question, and you said 

it is different. 

Professor Rotenberg, I think as a goal we want to have more 

transparency in all of the laws that we have except when you are 

dealing with national security. If we have too much transparency, 

then people who wish to do our country and its citizens harm will 

end up being able to connect the dots and be able to get away with 

a terrorist strike. And this is something that this Committee has 

had to wrestle with really since FISA but more acutely since 9/11. 

67 

Now, how are we able to make any sense if the law is amended 

to require the government to release the numbers of people who 

were incidentally monitored without identifying the individuals 

that you don’t want identified. 

Mr. ROTENBERG. Well, Mr. Chairman, as I said, I think statistical reporting, based on the current statute in Section 707, in fact, 

you do get numbers as to how many orders were authorized under 

702, 703. None of that information would jeopardize any investigation to yield any activity. 

Mr. SENSENBRENNER. Okay. 

Mr. ROTENBERG. I would also point out I think Mr. Jaffer’s suggestion that the legal reasoning of the FISA Court to the extent 

that it can be released with appropriate sections redacted would 

also be very helpful to make an effort to—— 

Mr. SENSENBRENNER. Now, following up on my question, say we 

release the number of people who are incidentally monitored—and 

you can pick a number from one to whatever—then how would that 

number mean anything to the public if we don’t release the number 

of targeted individuals to compare it to? 

Mr. ROTENBERG. Well, you know, obviously, you would make the 

decisions about what you think is appropriate to release. But my 

own experience, having read these reports for many, many years, 

is that it is actually quite helpful to evaluate trends in the use of 

surveillance authority. 

It was significant, for example, that in 2003 the number of FISA 

warrants for the first time exceeded the number of Title III warrants that were issued in the United States, and that was a reflection of the changing character of investigations within this country. 

I think that information would be helpful not only to the Committee but also to the public. 

Mr. SENSENBRENNER. Okay. Next question is that say we release 

the actual number of people who were targeted. Does that give the 

other side an indication as to the extent of the operational strength 

of our national security agencies? 

Mr. ROTENBERG. You know, I don’t see how it would. I imagine 

someone could make the argument. But we are truly talking about 

aggregate numbers, and you could choose, for example, which numbers to disclose. 

The main point, I think—and maybe there is agreement on this 

point—the current numbers that are provided are simply inadequate. You just don’t know from the information that is made 

available from the Court how this legal authority is being used, 

and I don’t think that is where you would want to leave this as you 

are considering renewal of the Act. 

Mr. SENSENBRENNER. My guess is that, rather than playing the 

numbers game either with the actual targets or the people who 

were incidentally surveilled, perhaps decisions of the FISA Court, 

particularly the review of the FISA Court appropriately redacted, 

would be able to give us the answer to that question, rather than 

saying there were X number of people who were incidentally 

surveilled and Y number of people, you know, who were actual targets. I have always been one that has favored disclosure. 

On the other hand, you know, I know that there is a danger involved in that, particularly looking at what was disclosed during 

68 

the trial of the Twin Towers bombers that Michael Mukasey as a 

Federal judge presided over. There was information that was disclosed during that trial that was used by al Qaeda to pull off 9/11, 

and I don’t think we want to change the law so that that happens 

ever again. 

Well, my time is up. 

I would like to thank the witnesses for appearing. This has been 

a very useful hearing. 

Let me say that Thursday of next week we will have a classified 

briefing where many of the Members of this Committee who have 

had questions can ask NDI Clapper and a yet-to-be determined 

representative of the Justice Department whatever they want. So 

that will be a classified briefing, and I would encourage the Members to come to it and to re-ask the questions that they don’t think 

they got an adequate answer to today. 

So, without objection, the hearing is adjourned. 

[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.] 

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