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95–461 PDF 2015

S. HRG. 113–676 

THE REPORT OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD ON REFORMS TO 

THE SECTION 215 TELEPHONE RECORDS PROGRAM AND THE FOREIGN INTELLIGENCE SURVEILLANCE COURT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

WEDNESDAY, FEBRUARY 12, 2014 

Serial No. J–113–49 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 1 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

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

statement .............................................................................................................. 34 

WITNESSES 

Witness List ............................................................................................................. 33 

Medine, Hon. David; Wald, Hon. Patricia M.; Brand, Hon. Rachel L.; 

Dempsey, Hon. James X.; Cook, Hon. Elisebeth Collins .................................. 6 

background information ................................................................................... 36 

QUESTIONS 

Questions submitted by Senator Grassley for David Medine .............................. 38 

Questions submitted by Senator Grassley for Rachel Brand ............................... 39 

Questions submitted by Senator Grassley for Elisebeth Collins Cook ................ 40 

Questions submitted by Senator Grassley for Chairman David Medine, James 

Dempsey, and Judge Patricia Wald .................................................................... 41 

ANSWERS 

Responses of David Medine to questions submitted by Senator Grassley .......... 42 

Responses of Rachel Brand to questions submitted by Senator Grassley .......... 45 

Responses of Elisebeth Collins Cook to questions submitted by Senator Grassley .......................................................................................................................... 48 

Responses of Chairman David Medine, James Dempsey, Judge Patricia Wald 

to questions submitted by Senator Grassley ..................................................... 51 

SUBMISSIONS FOR THE RECORD 

Submissions for the Record Not Printed Due to Voluminous Nature, Previously Printed by an Agency of the Federal Government or Other Criteria 

Determined by the Committee, list: http://www.pclob.gov/SiteAssets/Pages/ 

default/PCLOB-Report-on-the-Telephone-Records-Program.pdf ...................... 54 

(1) 

THE REPORT OF THE PRIVACY AND CIVIL 

LIBERTIES OVERSIGHT BOARD ON REFORMS TO THE SECTION 215 TELEPHONE 

RECORDS PROGRAM AND THE FOREIGN INTELLIGENCE SURVEILLANCE COURT 

WEDNESDAY, FEBRUARY 12, 2014 

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

The Committee met, pursuant to notice, at 10:04 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Richard Blumenthal, 

presiding. 

Present: Senators Blumenthal, Whitehouse, Franken, Grassley, 

and Hatch. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. 

SENATOR FROM THE STATE OF CONNECTICUT 

Senator BLUMENTHAL. I am very pleased to begin this hearing of 

the Senate Judiciary Committee on the report of the Privacy and 

Civil Liberties Oversight Board on Reforms to Section 215 Telephone Records Program and the Foreign Intelligence Surveillance 

Court. I appreciate your being here today—all five members of the 

Board are here—and most important, your extraordinarily impressive report, which is all the more so because of the less-than-ideal 

conditions under which you did it, with very few staff and high 

time pressure. 

I am struck by the thoughtful analysis, which is exceptional—exceptional in its quality, but also exceptional in the fact that this 

issue has received so little thoughtful analysis over the time that 

this surveillance and intelligence-gathering program has proceeded. 

And, of course, for years the program has been hidden from the 

public, and the legal justification of it was not available to anyone. 

In fact, the legal justification was not done, and that is more shocking even than the hiding and secrecy involved in the program. 

Since the program was made public, we have seen legal justifications from the executive branch and opinions from the judiciary, 

but none of the publicly available analysis has addressed all of the 

crucial questions that you discuss in your report. So I thank you 

for that contribution, among others. 

I am absolutely shocked and deeply disturbed that eight years 

after this metadata program, the bulk collection program, was authorized, the courts have still not carefully and thoroughly worked 

through the issues that surround the program. In our American 

legal system, we expect that there will be such analysis, such review of legal issues before the executive branch acts. And here 
2 

there apparently was none. Even the two members of your Board 

who dissented from the legal analysis acknowledged that the Board 

has raised significant legal issues which could divide reasonable 

people, reasonable lawyers. 

The American people essentially deserve better, and that is one 

of the reasons that we are here today. They deserve better than to 

have the executive branch engaging in conduct that even its defenders say might be illegal. 

The second major achievement of this report is that it sheds light 

on the history of the bulk telephone metadata program. We learned 

from your report that a judge authorized the collection of phone 

records on potentially every American without so much as issuing 

a written opinion, which is incredible, absolutely shocking. 

In 2006, Judge Howard issued an extensive order allowing the 

government to collect phone records of law-abiding Americans with 

no known connection to any crime, telephone records on every 

American who was not even suspected of committing any crime. 

And he chose not even to provide a sentence explaining his legal 

reasoning. 

That is all the more disturbing when you consider the legal context. In 2006, the Attorney General was required by law to pass 

along to Congress any major ruling, any major legal ruling from 

the FISA Court, Foreign Intelligence Surveillance Court, but only 

if the FISA Court wrote an opinion. So when Judge Howard decided he was not going to write an opinion, the decision prevented 

Congress from learning the legal basis for a massive change in the 

government’s claim to surveillance authority, which is an important—in fact, essential—point. There are some, maybe in this audience, some Americans certainly who agree that the FISA Court 

should have an adversarial process, but they will allow it only if 

the FISA Court judge asks for it. And yet it appears that the judge 

who first signed off on the bulk metadata program, a program that 

even its supporters acknowledge raises significant legal issues, did 

not think that the issue warranted an opinion. 

So I am not blaming Judge Howard for this submission. Judges 

really are not expected to decide what is important and, in fact, 

often cannot do so without a lawyer raising an issue and highlighting it and arguing it and saying that it is crucial. All the more 

reason that the adversarial process has to involve a constitutional 

advocate, in my opinion, and the legal basis for this order was not 

only not conveyed but the lack of an opinion prevented Congress 

from learning about it. 

There are also reasons in your report to question the effectiveness of the bulk metadata program, and, in fact, we have learned 

more recently that perhaps only 30 percent, actually, of the phone 

calls were collected. Only a proportion of the supposedly comprehensive collection of phone calls was actually absorbed or collected by the government, which undercuts and contradicts representations made to the courts in justification of the program 

itself. Representations made by the President are undercut by that 

potential fact. So it appears that the effectiveness of the program 

may be in question also, which is an issue raised in your report 

and, again, highly significant. 
3 

These kinds of issues deserve to be aired and analyzed more effectively and comprehensively than they have been, and one of the 

reasons we are having this hearing is to give you an opportunity 

to continue your conversation with the American public about these 

critical issues. I want to again thank you, not only on my behalf 

but also for Chairman Leahy, who has provided a written statement. I am not going to read it, but if there is no objection, I will 

ask that it be made part of this record. 

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

Senator BLUMENTHAL. I will now turn to the Ranking Member, 

Senator Grassley. 

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

SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. I have a statement I am going to read. Before 

I do that, I want to say that I have the same concerns that Senator 

Blumenthal has just expressed. But I also want to make it very 

clear that—and if I did not have those same concerns, I would not 

be upholding my oath to the Constitution and the Fourth Amendment. But, also, I think I would take into consideration a balance 

between our number one responsibility of the Federal Government, 

which is national security, and the requirements of our civil liberties. 

First of all, thank you for joining us, and thank you, Mr. Chairman, for holding this hearing, and I welcome the Board members 

that are with us, the entire Board. 

It is good that the Committee has held many hearings on these 

surveillance authorities. The Committee will undoubtedly hold 

more. The most important responsibility of the Federal Government is to protect national security, while at the same time preserving our civil liberties. The NSA continues to be of great concern 

to my constituents in Iowa and obviously across the country. 

Over the last few months, I have grown more concerned about 

why the Department of Justice has not prosecuted any of the few 

NSA employees who willfully abused their surveillance authorities. 

We do have examples of where it has been abused and referred to 

the Justice Department. I have not had an answer yet. I did write 

a letter to the Attorney General about this back in October. Still 

no response. 

A few weeks ago at a hearing, I pressed the Attorney General for 

an answer. He did not have one. He committed to getting me a response, but I am still waiting. It is good that these abuses have occurred only on a few occasions. But the American people need to 

know if the Department is taking these referrals seriously. 

A month or so ago, the President finally weighed in on these important surveillance reform matters. It was past time for our Commander in Chief to become engaged on this issue. After all, surveillance authorities are critical to our national security. 

Some of the reforms in his speech concerned me, like the idea 

that we would recognize privacy rights of potential foreign terrorists. I do not quite understand that. 

On the other hand, other reforms the President announced seem 

very promising. For example, to the extent that it does not com-
4 

promise national security, increased transparency can help to restore the public’s confidence in our intelligence community. 

Indeed, not long after his speech, the administration announced 

new rules that will permit companies to be far more transparent 

with their customers about FISA Court orders and directives. 

The President also announced reforms to the government’s handling and use of the telephone metadata that it collects under 215. 

The government is now required to obtain a separate court order 

every time it seeks to access or search metadata, except in emergency situations. This is a significant additional safeguard against 

the potential abuses of the metadata. 

Additionally, the President announced a change to the program 

that will require the metadata to be held by the telephone companies. He apparently believes that this can be done without compromising the program’s operational value. There are many questions 

about whether such an arrangement is desirable or even possible. 

But the administration is currently exploring options implementing 

this change, and it is my understanding they are supposed to have 

a report ready by March 28th. 

It was against this landscape that this Board before us issued its 

report a few weeks ago. The report contains a number of recommendations that I am interested in hearing more about. 

For example, many of the recommendations in the report concern 

increased transparency—a very worthy goal. All but one of these 

transparency recommendations was adopted unanimously by the 

Board reporting today to us. Moreover, they are similar to the reforms that the President proposed. 

Additionally, the report recommends that the FISA Court be able 

to call upon a pool of advocates from outside the government. These 

advocates would provide an independent perspective, but only in 

cases that the judge decides present novel or significant issues. 

This recommendation was also adopted unanimously. It is also 

similar to the President’s proposal, as well as the approach in the 

bill that passed out of our Senate Intelligence Committee. 

The Board’s remaining conclusion, however, was that the Section 

215 metadata program is illegal and should be terminated. Of 

course, this recommendation received the most media attention. It 

was adopted by only a bare majority of the Board before us on a 

3–2 party-line vote. 

The Board’s conclusion on this point is striking, given that it is 

inconsistent with the opinions of so many other authorities that 

have evaluated the lawfulness of the Section 215 program. 

For instance, the Board’s conclusion is contrary to the opinion of 

the President of the United States, who, as you know, proudly says, 

and legitimately so, that he is a former constitutional law professor, as well as even the Department of Justice taking that same 

position. 

It is contrary to the opinion of the prior administration that initiated the program. 

It is contrary to the opinion of the 15 FISA Court judges who 

have reauthorized the program over the years. 

It is contrary to the opinion of two of the three district court 

judges who do not serve on the FISA Court but who have nonetheless considered the issue. 
5 

And, of course, it is contrary to the opinion of two of the Board’s 

members. 

Nevertheless, as we consider these various reforms, I welcome 

hearing a wide range of views. I thank the Board for their contribution to public service on this very important issue that is obviously a constitutional issue. 

Thank you. 

Senator BLUMENTHAL. Thank you, Senator Grassley. 

I do not know whether Senator Franken has any remarks that 

he would like to make at the outset. 

Senator FRANKEN. I will wait until the questioning. 

Senator BLUMENTHAL. Very good. Thanks. 

I would like to ask the panel to please rise and be sworn, as is 

the custom of our Committee. Do you affirm that the testimony 

that you are about to give is the truth, the whole truth, and nothing but the truth, so help you God? 

Mr. MEDINE. I do. 

Judge WALD. I do. 

Ms. BRAND. I do. 

Mr. DEMPSEY. I do. 

Ms. COOK. I do. 

Senator BLUMENTHAL. Thank you. 

I understand that you have a brief opening statement, but before 

that, let me just introduce the panel, if I may. 

David Medine, the Chairman of the PCLOB, has been the 

Board’s Chairman since May 2013. Before becoming the Chair, he 

worked as an Attorney Fellow at the Securities and Exchange Commission and a Special Counsel at the Consumer Financial Protection Bureau. He was previously a partner focusing on privacy and 

data security at Wilmer Hale, a Senior Adviser to the White House 

National Economic Council, and Associate Director for Financial 

Practices focusing on privacy issues at the Federal Trade Commission, and also was a professor at Indiana University and George 

Washington University Law Schools. He has a B.A. from Hampshire College and a J.D. from the University of Chicago. 

Rachel Brand is chief counsel for regulatory litigation for the 

United States Chamber of Commerce. Ms. Brand has held a number of positions at the Department of Justice during the President 

George W. Bush administration, including Assistant Attorney General and Principal Deputy Assistant Attorney General for Legal 

Policy and Regulatory Policy Officer. She worked in the White 

House Counsel’s Office and clerked for Justice Anthony Kennedy 

and justice Charles Fried of the Supreme Judicial Court of Massachusetts. She has also practiced law at Wilmer Hale and at Cooper 

Carvin Rosenthal in Washington, DC. She has a B.A. from the University of Minnesota and a J.D. from the Harvard Law School. 

Elisebeth Collins Cook is counsel in the regulatory controversy 

and regulatory and government affairs departments in the Washington, DC, office of Wilmer Hale. Ms. Cook previously served as 

the Republican Chief Counsel on Supreme Court Nominations for 

the Senate Judiciary Committee and as an Assistant Attorney General for Legal Policy at the Department of Justice at the end of the 

Bush administration. She served as a member of the Board of Governance of the Terrorist Screening Center and co-chair of the Sub-
6 

committee of the President’s Identity Theft Task Force. She was a 

law clerk to Justice Laurence Silberman of the United States Court 

of Appeals for the DC Circuit and to Judge Lee Rosenthal of the 

United States District Court for the Southern District of Texas. 

She holds a B.A. from the University of Chicago and a J.D. from 

Harvard Law School. 

James Dempsey is vice president for public policy at the Center 

for Democracy & Technology, a nonprofit focused on privacy, surveillance, and other Internet issues. Mr. Dempsey previously 

served as deputy director of the nonprofit Center for National Security Studies and as special counsel to the National Security Archive. Prior to that, he was Assistant Counsel to the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights 

and an associate at Arnold & Porter. He, too, was a law clerk, in 

his instance for Judge Robert Braucher of the Massachusetts Supreme Judicial Court. He served as a member of several bodies addressing these issues, including the Industry Advisory Board for 

the National Counter-Terrorism Center, and the Transportation 

Security Administration’s Secure Flight Working Group, among 

others. He has a B.A. from Yale University and a J.D. from Harvard Law School. 

And, finally, but certainly not least, I am particularly proud and 

pleased to welcome a native of Connecticut, Judge Wald, who has 

served with extraordinary distinction for 20 years on the United 

States Court of Appeals for the District of Columbia, including five 

years as chief judge. She has also continued her public service as 

a judge on the International Criminal Tribunal for the Former 

Yugoslavia and a member of the President’s Commission on Intelligence Capabilities of the United States Regarding Weapons of 

Mass Destruction. She served in President Carter’s administration 

as the Assistant Attorney General for Legislative Affairs in the Department of Justice. She also previously worked as an attorney at 

the Mental Health Law Project, the Center for Law and Social Policy, the Neighborhood Legal Services Program, the Office of Criminal Justice at the Department of Justice, and co-director of the 

Ford Foundation Drug Abuse Research Project. Judge Wald clerked 

for Judge Jerome Frank on the United States Court of Appeals for 

the Second Circuit. She received her B.A. from the Connecticut College for Women and her J.D. from Yale Law School. And I might 

just say she has been inducted into the Connecticut Women’s Hall 

of Fame. 

We welcome all of you. We thank you for being here. I understand you have a brief introductory statement that will be submitted by the Chairman, and please proceed. Thank you. 

STATEMENT OF THE HONORABLE DAVID MEDINE, THE HONORABLE PATRICIA M. WALD, THE HONORABLE RACHEL L. 

BRAND, THE HONORABLE JAMES X. DEMPSEY, AND THE 

HONORABLE ELISEBETH COLLINS COOK 

Mr. MEDINE. On behalf of my fellow Privacy and Civil Liberties 

Oversight Board members, thank you, Mr. Chairman, Ranking 

Member Grassley, and Committee Members, for the opportunity to 

appear today. 
7 

PCLOB, or the Privacy and Civil Liberties Oversight Board, is an 

independent executive branch agency tasked with ensuring that 

our Nation’s counterterrorism efforts are balanced with the need to 

protect privacy and civil liberties. 

Before beginning my testimony, I want to state our respect and 

admiration for the men and women in the intelligence community 

who work tirelessly to protect this country while maintaining our 

values. We have the highest regard for them. 

Last June, at the request of Members of Congress and the President, our Board initiated a study of the bulk telephone records program conducted by the National Security Agency under Section 215 

of the USA PATRIOT Act. The study included classified briefings 

with officials from the Office of the Director of National Intelligence, the NSA, the Department of Justice, the FBI, and the CIA. 

Board members also met with White House staff, a former presiding judge for the FISA Court, academics, privacy and civil liberties advocates, technology and communication companies, and 

trade associations. 

In addition, the Board received a demonstration of the Section 

215 program’s operation and capabilities at the NSA. 

The Board has been provided access to classified opinions by the 

FISA Court and classified documents relating to the operation and 

effectiveness of the program. At every step of the way, the Board 

has received the full cooperation of the intelligence agencies. 

Consistent with our statutory mandate to operate publicly where 

possible, the Board held two public forums and solicited public 

comments. In our January 23 report, the Board concluded that the 

Section 215 bulk telephone records program lacks a viable legal 

foundation under Section 215, implicates constitutional concerns 

under the First and Fourth Amendments, raises serious threats to 

privacy and civil liberties as a policy matter, and has shown only 

limited value. As a result, the Board recommends that the government end the program. 

The majority concluded that particularized telephone record 

searches could be performed using other existing authorities. Two 

Board members declined to join the Board’s legal conclusions, taking the position that the government’s interpretation of the statute 

is a reasonable reading, made in good faith by numerous officials 

in two administrations of different parties, and constitutes a goodfaith effort to subject a potentially controversial program to both 

judicial and legislative oversight. 

The Board unanimously recommends that the government immediately implement several additional privacy safeguards to mitigate 

the privacy impact of the present Section 215 program. Specifically, 

the government should reduce the retention period for the bulk 

telephone records program from five years to three years; reduce 

the number of hops used in contact chaining from three to two; 

submit the NSA’s reasonable, articulable suspicion, or RAS, determinations to the FISA Court for review after they have been approved by the NSA and used to query the data base; and require 

an RAS determination before analysts may submit queries to or 

otherwise analyze the corporate store, which contains the results of 

contact chaining queries to the full collection store. 
8 

Last week, at the Attorney General’s request, the FISA Court 

modified its primary order to require prior judicial approval for 

reasonable, articulable suspicion determinations before the data 

base is queried, and consistent with the Board’s recommendations, 

the Court reduced the permissible queries from three to two hops. 

The Board’s report also addressed the operation of the FISA 

Court. The Court’s procedures have raised concerns that it does not 

take adequate account of positions other than those of the government. 

The Board believes that some reforms are appropriate and would 

help bolster public confidence in the operation of the Court, including: creation of a panel of private attorneys, or Special Advocates, 

who can be brought into cases involving novel and significant 

issues by FISA Court judges; development of a process facilitating 

appellate review of FISA Court decisions; and increased opportunity for the Court to receive technical assistance and legal input 

from outside parties. 

We believe that our proposal successfully ensures the ability of 

the Court to hear opposing views while not disrupting the Court’s 

operation or raising constitutional concerns about the role of an advocate. 

The Board also believes that to the maximum extent possible 

consistent with national security, declassified opinions of the FISA 

Court, with minimal reductions, should be made publicly available. 

Finally, the Board believes that the scope of surveillance authorities affecting Americans should be public while sensitive operational details regarding the conduct of government surveillance 

programs remain classified. Two Board members declined to join 

this recommendation. 

All of the Board’s recommendations regarding the operation of 

the FISA Court and six of the seven regarding transparency are 

unanimous. 

The Board thanks you for the opportunity to testify before the 

Senate Judiciary Committee today regarding our report. We would 

be happy to answer any questions the Committee members may 

have. 

[The prepared statement of Mr. Medine and the other Board 

members appears as a submission for the record.] 

Senator BLUMENTHAL. Thank you. I am happy to give other 

members of the panel an opportunity to speak separately by way 

of introduction, but if not, why don’t I just begin with some questions. 

Let me ask you as the Chairman, Mr. Medine, would the apparent revelation that perhaps only a proportion of this telephone data 

was actually collected change in any way the conclusions of your 

report? 

Mr. MEDINE. I do not think we can address in public session the 

pros and cons of that conclusion, but we would be happy to meet 

with the Committee in private session. But even if the reports are 

true, it still means that hundreds of millions of telephone records 

are being collected, and so at least it is my view that it would not 

change the recommendations of the Board. 
9 

Senator BLUMENTHAL. Would it undercut the accuracy of representations made by the U.S. Government to the courts to justify 

this program? 

Mr. MEDINE. Again, I do not want to comment on that because 

some of this matter still remains classified, and I think there is 

more to be said on that, but I do not think it can be said in public 

session. 

Senator BLUMENTHAL. Well, let me put it a different way. 

Wouldn’t you agree with me that the U.S. Government has misled 

the courts, whether purposefully or inadvertently, in justifying this 

program on the basis that all telephone records are collected? 

Mr. MEDINE. Again, I am not prepared to confirm any of the reports that have been made, and so I do not want to draw any conclusions about representations that were made in any court proceedings. 

Senator BLUMENTHAL. Let me then just move on to a separate 

line of questioning. Is it fair to say from your report that the 

present bulk metadata collection program is unjustifiable under existing law? 

Mr. MEDINE. That is the conclusion of the majority of the Board, 

yes. 

Senator BLUMENTHAL. It is illegal. 

Mr. MEDINE. Yes. It is not consistent with the Section 215 authority. 

Senator BLUMENTHAL. So in order to continue it, if the Congress 

chooses to do so, we would have to change the statute? 

Mr. MEDINE. That is the majority’s view, although, again, the 

majority would also counsel that even if you change the statute and 

resolve the statutory issues, we still believe there are serious constitutional issues and very serious policy issues related to balancing national security with privacy and civil liberties, and given 

that there are alternative legal authorities to be used, at least the 

majority’s preference would be to abandon 215 for these purposes 

and use those other legal authorities. 

Senator BLUMENTHAL. In other words, in effect, scrap 215 and 

rely on alternative authority? 

Mr. MEDINE. Exactly, yes. 

Senator BLUMENTHAL. Has the panel reached any conclusion in 

terms of timing as to whether our consideration or perhaps revision 

of 215 or other authorities should await resolution by the U.S. Supreme Court of some of these issues that may come before it in 

cases that are now in the lower courts? 

Mr. MEDINE. The panel has not addressed that question specifically, but, again, given both the legal and policy concerns, I think 

the interest would be to move forward and try to resolve those 

issues sooner than later. 

Senator BLUMENTHAL. Because we have no assurance, knowing 

the U.S. Supreme Court, whether it will, in fact, address those 

issues that are considered necessary and relevant for the Congress 

to act or not, that is up to the Court to do? 

Mr. MEDINE. Right. We only have district court decisions now, 

and they have to work their way up through the system. But at 

least the majority of the Board believes that action should be taken 

on the program sooner than later. 
10 

Senator BLUMENTHAL. There is no telling whether the U.S. Supreme Court will resolve those critical issues and when it will do 

so. 

Mr. MEDINE. Right, or how it will do so, as well, in terms of providing guidance. 

Senator BLUMENTHAL. Let me ask you and Judge Wald, on the 

issue of the adversarial process, I understand that the conclusion 

of the panel was that the advocate—I have called it a ‘‘constitutional advocate’’—should be enlisted only when the Court thought 

there was a novel or important issue. My view is that the constitutional advocate should make that decision and be involved wherever she thought an important or novel issue was raised by a warrant—not necessarily or usually before the warrant was issued—so 

as not to delay the process, but at least afterward, analogous to 

what happens in the ordinary criminal process where there is the 

opportunity to challenge the legality of a search or surveillance 

after the fact, and the evidence can be excluded. 

Isn’t it often the case, let me ask you, Judge Wald, that judges 

fail to see important or novel issues without counsel saying, in effect, this issue is critical, it is decisive, it is unresolved by other 

courts, or resolved badly? Don’t judges benefit by hearing that argument to be made by counsel? 

Judge WALD. Yes, Senator, they certainly do. Because I was forewarned that this might be a question, I did a very brief look at 

some of my own experience in 20 years on the DC Circuit, and I 

looked at only one year’s opinions which I was involved in. There 

were 33 opinions in that particular year in the 1980s. And seven 

times out of the 33 opinions which I wrote that year—and I was 

only one of ten judges. I do not know what the record would be of 

the other nine judges—but seven of those opinions were sent back 

to the district court because the district court had not discussed 

what we considered to be an important legal matter. And I would 

say that that number might even be low because, as you well know, 

there is a doctrine in the regular courts that if you did not raise 

it down below, you cannot raise it on appeal. 

But, yes, it was a not totally infrequent occasion, despite the obvious fact that all of our cases did have counsel on both sides, and 

even with that kind of protection, there still were missed items— 

I would say especially in the regulatory complex cases, which had 

a lot of different issues involving technology. I just could not help 

copying one sentence from one of these monstrous EPA cases in 

which the court of appeals said, ‘‘This is the first challenge to the 

new source performance standards since the passage of the 1977 

amendments. Therefore, the court was surprised that neither party 

raised during the discussion below the appropriate standard of law. 

In that discussion, they did not even mention the fact of a new 

major legislative effort.’’ So, I mean, even with the best kind of 

counsel, it can happen. 

Senator BLUMENTHAL. Issue spotting is a challenging business. 

Judge WALD. Yes. 

Senator BLUMENTHAL. Even with counsel. And without it, reliance on a judge is often hazardous. I have never been a judge, but 

I have litigated for a number of years, and I have always been astonished at how cases that I have tried may raise issues on appeal 
11 

that I thought were insignificant below, and sometimes decided by 

a ruling without an opinion. But I think that the reason that I propose the constitutional advocate be involved in every decision that 

she or he thought was significant was to give the court the benefit 

of that kind of additional insight and guidance and perspective. 

I am going to turn to my colleague Senator Grassley and then 

to Senator Franken for his questions. 

Senator GRASSLEY. Thank you. 

I am going to ask Ms. Brand a question, but Ms. Cook, if you 

want to follow up with anything, you are welcome to do that. 

Ms. Brand, you and Ms. Cook disagreed with the Board’s analysis and conclusion in a few key areas, including its conclusion that 

the bulk metadata program is not authorized under Section 215. 

Question: Can you explain why you disagree with the Board’s 

analysis and conclusion on this point and why you believe that the 

program is lawful? 

Ms. BRAND. Sure. Thank you, Senator Grassley. You know, I 

think the statutory question is difficult. It is not a simple question. 

It is certainly one on which reasonable people can differ. But at the 

end of the day, I would agree with every single federal judge who 

has considered the statutory question, all of whom have upheld the 

program. 

There is a lot to say about the Board’s 40- to 50-page legal analysis on this subject, but just one thing that concerns me about their 

analysis is that it seems to disregard the difference between national security investigations and criminal investigations. One example of that is in the Board’s analysis of whether the relevance 

standard in the statute is met. In that discussion, the Board says 

a grand jury subpoena, which, as you know, also has a relevance 

standard, has never been used to collect the volume of data that 

is collected under the 215 program. And that is just not the right 

question to ask because relevance is contextual. You have to ask, 

‘‘Relevant to what?’’ And in the grand jury context, information has 

to be relevant to a criminal investigation, which is retrospective 

and comparatively narrow. 

In the FISA context, under Section 215, information has to be 

relevant to an ongoing FISA investigation. That is a long-term, 

proactive, preventive intelligence investigation into an entire terrorist organization, and so it should not be surprising that a broader volume of data would be relevant to that than would be relevant 

to your typical criminal investigation. 

Senator GRASSLEY. Okay. Ms. Brand, you and Ms. Cook also disagreed with the Board’s conclusion that the program should be 

shut down as a policy matter. The Board found that the program’s 

risk outweighed its benefits, but in your written statement, you appeared to challenge both sides of that equation. You wrote that the 

program’s actually intrusion on privacy is small and that its benefits cannot be measured solely by how many terrorist plots it directly disrupted. 

Question: Can you explain in more detail why you disagreed with 

the Board’s policy decision and conclusion that the program should 

be terminated and why you believe that it is worth preserving? 

Ms. BRAND. Sure. The question boils down to whether the privacy implications of the program outweigh the national security 
12 

benefits, and I think the Board’s report both overstates the privacy 

implications and understates the benefits. 

On the privacy side, it is useful to stop for a minute and think 

about what the program is. It is not collection of content of any 

communication. The government cannot listen to anyone’s phone 

calls with this program. It is literally a series of phone numbers 

and the times they called other phone numbers with no names or 

any other personally identifying information attached to any of 

them. It is just a bunch of numbers. 

The uses of it are also really limited. The government cannot 

look at the information in the data base unless they have a particular phone number that they have evidence is connected to terrorism. And then they can look in the data base to see which phone 

numbers talked to that phone number. Again, no names. So that 

exercise in connecting phone numbers to phone numbers is what 

this program is about. 

In addition, you have the numerous levels of oversight of the program. The use of the program is incredibly strictly limited. And if 

you take all of that plus the additional restrictions that we recommended be imposed, I think the intrusion on privacy is very 

small. 

On the value side, I said exactly what you said, which is that 

whether this program has thwarted a particular plot lately is not 

the only question. You have to look longer-term into whether the 

next time there is a large-scale terrorist threat against the United 

States, could this program prevent it, and I think the answer is 

clearly yes, there is the potential for that. 

You also have to remember that preventing a terrorist attack is 

not the only measure of value. It is also valuable when the government can determine there is no terrorist threat. So if you had, for 

example, a situation where there was evidence of a terrorist plot 

abroad and the government was trying to figure out if there is also 

a domestic threat, if the government can determine there is no domestic threat, then they might not have to take an action like 

grounding all the airplanes in the United States. And that is also 

valuable, I think. 

Senator GRASSLEY. Okay. Ms. Cook, the Board concluded unanimously that the bulk metadata program is constitutional, but neither you nor Ms. Brand joined the extended analysis of this question that is contained in the report. Did you find this a difficult or 

close constitutional question, number one? And, number two, could 

you explain why you did not join the analysis of the three other 

members of the Board? 

Ms. COOK. Thank you for the opportunity to answer that question. As to the Fourth Amendment, the Board was unanimous that 

the program does not violate the Fourth amendment. Smith v. 

Maryland is the law of the land, and the Board was unanimous 

that the government is entitled to rely on that precedent. 

I declined to join the Fourth Amendment section as it was primarily an extended discussion of a potential evolution in Fourth 

Amendment jurisprudence. I did not find persuasive the Fourth 

Amendment analysis, the prognostications particularly, as it depended very heavily on a sole concurrence in the Jones decision. I 
13 

do not think that is an indicator necessarily of where the Supreme 

Court is going. 

As to the First Amendment, I could not join that analysis as the 

First Amendment analysis was of programs that simply do not 

exist. As Ms. Brand has explained, the program here is simply 

about numbers calling numbers. It is not associated with individuals’ information. The majority, nonetheless, talks about the NSA 

painting complete pictures of every American’s associational activities. As that is not the program we were analyzing, I could not join 

the First Amendment analysis. 

Senator GRASSLEY. Mr. Medine, I will ask you my last question. 

The Board’s report recommends the creation of an advocate to participate in the FISA Court process. The report recommends: one, 

that the advocate should come from a pool of attorneys outside the 

government; two, that the FISA Court should retain control over 

whether to call upon the advocate in a matter; and, three, the advocate should not participate in or review all applications filed by 

the government. 

Two questions together. Could you walk through why the Board 

felt strongly about each of these issues? And, second, did the Board 

meet with any judicial representatives or did their views play a 

role in shaping the Board’s recommendations? 

Mr. MEDINE. Thank you, Senator Grassley, for the opportunity to 

respond. 

Just answering your last point first, the Board held two public 

workshops, as I mentioned earlier, and we took testimony from two 

former FISA judges, Judge Robertson and Judge Carr. In addition, 

the Board met in private session with former FISA Judge Bates. 

And so, yes, we had discussions with former judges in helping form 

our views of those questions that you have raised. 

The first question you raised is having the lawyers, the special 

advocates, be outside the government. We felt that it was important that they be independent and bring a fresh view to these 

issues, and the alternative of seating them in the executive branch, 

which is where the government is already making the request of 

the FISA Court, so we thought to be more independent it made 

sense for them to be not part of the executive branch. And, likewise, it does not make sense to have an advocate be part of the judicial branch, which is supposed to be a neutral arbiter of these 

issues. 

So we concluded that the best way to bring a fresh perspective 

to raise legal and constitutional concerns was to have a panel of 

outside private lawyers, chosen by the chief judge of the Court, 

with the appropriate clearance or able to get clearance, and work 

space, to address these important questions in appropriate cases, 

which, I guess, turns to the second question, which is in regard to 

giving the judge control over the cases. We felt that certainly in everyday, routine cases there was not a need for a special advocate. 

The judges have testified to us that they are very capable in handling those, much the way they handle search warrants, ex parte 

in regular proceedings. It is the novel programmatic approvals involving novel technical and legal issues where the judge’s role is 

challenging. And so we wanted to give judges authority to invite 
14 

the special advocates in those cases where the judge deemed it appropriate. 

We do want a reporting mechanism to make sure the judges exercise that authority appropriately, and so since the government is 

supposed to designate those significant cases in advance, we would 

like the Court to report on how many cases were designated in that 

fashion, and in such cases, how many was a special advocate appointed. 

Likewise, there are also cases that do not, on their face, appear 

to present novel or technical issues, but the judge may know that 

they raise important questions, and we wanted the judge to be free, 

even in those cases, to invite in, to have discretion to expand the 

pool, and also discretion as to when it is appropriate to bring someone in. 

And, again, I think I answered your last question, which is that 

not all applications, because probably a significant majority of the 

cases are routine and do not require the role of an advocate and 

it might actually slow the process down. But in significant problematic approvals like the 215 program and others, where the judge is 

almost acting like an administrative agency in approving a program, the judges themselves said they would value an outside opinion being brought in. 

Senator GRASSLEY. Thank you, Mr. Chairman. Thank you, panel. 

Senator BLUMENTHAL. Thank you, Senator Grassley. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, and I would like 

to thank the Oversight Board for its work. 

All my questions are basically on transparency. On page 190 of 

your report, you stated that, ‘‘Transparency is one of the foundations of democratic governance.’’ And I could not agree more. However, it has been eight months since the Snowden leaks, and the 

government still has not given the American people even a rough 

estimate of how many people have had their information collected 

under Section 215 or how many numbers have been collected. And 

under current law, the government does not have to. 

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

Transparency Act. It would mean that the government would have 

to say how many numbers, how many people’s numbers, have been 

collected and how many have been queried, how many people have 

been queried. 

Recommendation 9 of your report echoes my bill. It says the government should give the American people a more detailed report 

about Section 215. 

What specific information should be included in these public reports, do you think? And do you think this reporting should be required by law? Anyone can take this. Mr. Dempsey? Mr. Medine? 

Ms. Brand? 

Mr. DEMPSEY. Senator, I think the recent agreement by the Justice Department to allow companies to disclose more information 

did not actually address the bulk collection question. 

Senator FRANKEN. Right. 

Mr. DEMPSEY. And assuming I understand your question correctly, the problem is that once anybody publishes a number saying 

a million of our customers are affected, then that basically says 
15 

there is a bulk collection program directed against this entity. And 

I believe that is sensitive information. 

I think a better way to address the bulk—— 

Senator FRANKEN. Wait a minute. When you say ‘‘the entity,’’ 

you mean the company? 

Mr. DEMPSEY. Yes. 

Senator FRANKEN. Okay. But that is sensitive information in the 

sense that—first of all, the companies would like to be able to say 

that. They would like to be more transparent. They have endorsed 

my bill. They support my bill. 

Mr. DEMPSEY. Honestly, I think there may be a split between 

what the telephone companies want to do and what the Internet 

companies would want to do. I am not sure about that, but I do 

see a legitimate security concern about naming or identifying or 

singling out—— 

Senator FRANKEN. But you do not have to single out. The government can say how many—all it can say—it does not—it just says 

how many numbers are caught up in the bulk collection. So it is 

not singling out a phone company. It is not singling out—— 

Mr. DEMPSEY. Well, but I think the better way to get at the question on the bulk side is to have a statute that either clearly authorizes bulk collection or does not authorize bulk collection. The fundamental conclusion of the Board majority was that the statute as 

you read it does not read like a bulk collection statute. And if we 

are going to authorize bulk collection, then we should have a statute, in my view, designed for that purpose and explicitly setting 

out the parameters of what a bulk collection program would look 

like. 

To me, that kind of legislative transparency is honestly more important than operational transparency. And here we are only talking about bulk collection, which, again, to my mind presents a 

unique question about what the government says about when it is 

doing it and—— 

Senator FRANKEN. Okay. Let me go to Mr. Medine. Thank you. 

I am asking what the government reporting should be, and assuming that we keep the bulk collection—which I am not necessarily assuming, but if we do, to me it makes sense that the government says how many numbers have been collected and how 

many have been queried? What is your opinion on that, your 

thoughts? 

Mr. MEDINE. Our report certainly calls for greater transparency 

by the government in how many requests it makes under each of 

its surveillance programs that are authorized by Congress. When 

you get down into the details of how many people’s information is 

gathered, that is not always an easy thing to determine. Even in 

the phone records program, multiple—I could have multiple phone 

numbers. So calculating how many—— 

Senator FRANKEN. Well, you could say how many numbers have 

been caught up, right? 

Mr. MEDINE. Right. There certainly could be greater transparency. 

Senator FRANKEN. That is easy to do. 

Mr. MEDINE. Yes. I think the tradeoff—and it is program by program—is in some cases there are national security concerns that 
16 

if we reveal that we are collecting a certain number of—amount of 

information under a particular program, we may have tipped off to 

potential terrorists how to not communicate under that program 

anymore because now the government is collecting it. 

So I think there is a balance to be struck, and the government 

has just negotiated an agreement—— 

Senator FRANKEN. Can’t you put a rough estimate on how 

many—I mean, if you say, you know, this many numbers we are 

collecting data on in our bulk collection, and Americans—see, my 

feeling is this: that Americans basically distrust executive power, 

and if they are not given enough information to make a decision 

for themselves about the legitimacy of things, then they will assume that the power is being abused. And to me it would make— 

I do not think you would be giving anything away if you said this 

many millions of numbers are having their—or tens of millions are 

having their numbers, data collected about them, and this many 

thousands are being queried. Do you really think that would—— 

Mr. MEDINE. I think in some circumstances it could, and I think 

the recent—— 

Senator FRANKEN. Give me a circumstance. 

Mr. MEDINE. Well, if you have a collection of some program on 

the Internet and we review—— 

Senator FRANKEN. I am talking about the—— 

Mr. MEDINE [continuing]. Phone records—— 

Senator FRANKEN. Yes. I am talking about the bulk data. That 

is what I am talking about. 

Mr. MEDINE. If we reveal how many phone records we are collecting, it might indicate which records we are not collecting, for 

instance, and so that might tip off people about safer methods of 

communication. 

Senator FRANKEN. If you said we are collecting information on 80 

million numbers, does that tell you anything about what we are not 

collecting? 

Mr. MEDINE. It might. 

Senator FRANKEN. Really? 

Mr. MEDINE. It depends on the number of companies offering 

those services and the number of customers they have. But we 

think that there is—transparency is clearly important. That was a 

major part of our report. FISA Court decisions should be made public. The government should reveal its surveillance efforts. And the 

laws that Congress passed should clearly reveal the authorities 

under which those programs operate. But we do think that there 

are some potential national security concerns, and the agreement 

the Justice Department reached with the companies, say, for instance, to not allow reporting for two years after a new program 

is instituted might provide some guidance on how to balance those 

important—both important—concerns of transparency and national 

security. 

Senator FRANKEN. Okay. Well, I hope we have a second round. 

Thank you. I am sorry I am over my time. 

Senator BLUMENTHAL. Thank you, Senator Franken. We will 

have a second round, assuming that we can do it before the votes 

occur at 11:30. 

Senator Hatch. 
17 

Senator HATCH. Well, thank you, Mr. Chairman. Welcome to all 

of you. It is good to see you all again. 

Anybody can answer this question. I want to thank you all for 

your service on the Board and contributing to this report. I would 

like to start with an issue that has received less attention than the 

NSA surveillance program, and that is the Foreign Intelligence 

Surveillance Court, or the FISC. Now, the Board unanimously recommended that the Court take full advantage of existing authorities to obtain technical assistance and legal input from outside parties, such as properly cleared outside lawyers. The Court can do 

that now, in my opinion, without any new legislative authority. 

Does the Court take advantage of that assistance? Any of you. 

Mr. MEDINE. I think the Court certainly has access to the government’s technology experts in gathering information. Beyond 

that, I cannot really say what the Court has done. 

Senator HATCH. Anybody else care to comment? Yes, Judge 

Wald. 

Judge WALD. Among the former and current judges of the FISA 

Court that we did talk to, we had one judge tell us that he did not 

think it was clear to all the judges how or to what extent they 

could take advantage of outside help. There have been, I believe, 

few instances—there was one amicus in the review court of the 

FISC Court, and there has been a more recent situation in which 

they have allowed an outside group that has petitioned to file a 

written presentation. But it was not clear, and we know of—I know 

of no examples where they did take advantage of outside technical—— 

Senator HATCH. Okay. Now, the Board unanimously recommended some reforms to make the work of the FISA Court more 

transparent. I am skeptical, however, about the recommendation 

that the scope of surveillance authority should be made public. The 

Board was divided on that issue, as I recall, and I am concerned 

that publicly outlining surveillance collection methods may compromise the investigative techniques employed by intelligence and 

law enforcement communities and ultimately pose a risk to national security. 

Yesterday the Director of National Intelligence issued, pursuant 

to Presidential Policy Directive 28, the list of permissible uses of 

intelligence collected in bulk. Now, it seems to me that making 

public the purposes for which the government uses intelligence 

rather than the methods it uses to collect that intelligence strikes 

a better balance, and I would like your comment, perhaps from 

someone on both sides of the issue, if you could. 

Ms. BRAND. I can start by explaining why I did not sign on to 

the 12th recommendation, which is, I think, what you are referring 

to. 

Senator HATCH. Right. 

Ms. BRAND. I agree with the majority in principle that, where 

programs or the outlines of programs or the purposes of programs 

can be revealed, they should be; but there is an important caveat 

to that, which is it has to be done consistent with the national security. I do not think that a program’s legality depends on whether 

it has been disclosed to the public. And I was concerned that that 

is what the Board’s recommendation implied. 
18 

I think that in our democracy, where we rely on committees like 

this one and on the intelligence committees to do oversight, there 

are necessarily going to be some things that occur in private, and 

that is permissible. 

Ms. COOK. I also would say I think it is difficult to draw conclusions about what can safely be disclosed publicly from the Section 

215 disclosures given that they followed the wholesale leak of the 

program. So I think we need to address this prospectively and taking into serious account what the potential damage could be from 

disclosure of previously classified programs. 

Senator HATCH. Okay. Well, I am happy to welcome you all here 

again. Judge Wald, you and I were together a long time ago. 

Judge WALD. Yes. I think we go back 30 years, if I—— 

Senator HATCH. I think we do, and I am just happy to have all 

of you here and I—— 

Judge WALD. I was just going to add—— 

Senator HATCH. Go ahead. 

Judge WALD. On the transparency, our recommendation, the majority’s recommendation, I think was fully cognizant of the fact that 

we in no way wanted the methods, operational details, or even the 

existence of a particular operation to be automatically disclosed. 

We did have testimony, actually, from a former Ranking Minority—Ranking Minority/Majority as it changed—Member of the 

House Intelligence Committee that the so-called framework and 

purpose of many of the programs could be disclosed by carefully 

drawing these lines, and let me just give an example. 

Now, we are just about to begin, or have begun, our report on 

Section 702 of the FISA Act, which deals with the collection of communications, one side of which may be in the U.S. and one side of 

which is foreign. And that amendment, which allows this program 

was openly debated before this body and before other bodies. Now, 

we have just begun the investigation. I am not about to try to preview any of our conclusions. But I will say this: The fact that how 

the program would operate in terms of the courts approving a target or minimization and what kinds of categories of material could 

be put in the targeting, many of these things are right in the statute or in the legislative history in the reports that accompany it. 

Now, my belief is that—again, we have only begun our investigation, but that the government itself has said that the 702 program 

has been very, very valuable to it and has said, certain representatives of the government, much more valuable actually than—— 

Senator HATCH. My time is running out. 

Judge WALD. Yes. That is my point. 

Senator HATCH. Let me just mention this. Ms. Brand and Ms. 

Cook, it has been suggested that you believe the metadata program 

might be illegal. Now, is that a fair characterization of your position? Each of you can speak to the matter. 

Ms. BRAND. No. 

Ms. COOK. No. 

Senator HATCH. Why not? 

Ms. BRAND. I was explaining earlier to Senator Grassley some of 

my reasons for thinking that the statute’s language can support 

the program. I think what people are reading too much into is my 

statement that reasonable lawyers can differ on this. It is not the 
19 

clearest-cut of questions, but at the end of the day, I think that the 

program is legal. That is my opinion. 

Senator HATCH. Okay. 

Ms. COOK. Similarly, I believe that the program is authorized. 

Ms. Brand had noted a concern with the majority’s approach to relevance. I think there are a number of concerns that I have with 

the majority’s legal analysis. For example, the Board has concluded 

that Section 215 prohibits providers from producing documents to 

the NSA instead of the FBI. It sounds like a technical issue, but 

the Board has concluded on that basis that the Section 215 program is unlawful. 

But if you read Section 215 where it talks about production of 

tangible things, there is no requirement whatsoever that it be 

made to the FBI. The majority has instead cobbled together this 

prohibition and rested its legal analysis on this prohibition that 

does not appear on the face of the statute. 

Senator HATCH. Thank you. 

Mr. Chairman, if I could just ask one other question, because I 

am going to have to leave. 

Let me just shift to the NSA telephone metadata program, which 

has received most of the attention in these hearings and in the 

media. 

Now, Ms. Brand, it is my understanding that the Board is unanimous that the metadata program is constitutional, but divided on 

whether it is authorized by statute. Is that a fair characterization? 

Ms. BRAND. That is correct. 

Senator HATCH. Okay. In addition to the Board’s substantive conclusion about whether the PATRIOT Act authorizes the metadata 

program, I wonder whether the Board should have delved into that 

issue at all. And, Ms. Brand, please summarize why you think the 

Board should not have ventured into that area. 

Ms. BRAND. Thank you, Senator Hatch. I would be happy to. 

I think a Board like ours, which performs primarily an advisory 

function and is not a court, does not have to address every legal 

argument that is available and has to pick and choose and consider 

the ramifications of what issues it decides to address. 

I think, frankly, on the legal question here, the statutory question, it is not clear to me what this Board adds. It is not as though 

we are addressing this as a matter of first impression. This program has been operating for years. It has been the subject of numerous judicial opinions. The legality of it will ultimately be resolved in cases that are currently pending in the courts. 

But, more importantly, I think where the Board concluded also 

that there is a policy reason for shutting down the program, it just 

struck me as gratuitous and unnecessary to also say the program 

is illegal, because that has a very demoralizing and negative effect 

on the intelligence community. You want your intelligence agencies 

to aggressively protect the national security within the bounds of 

the law. You do not want them to be timid and be scared of the 

rug being pulled out from under them by being second-guessed, you 

know, years later when they did everything right by going to the 

court and operating under what they believed to be a legal program. 

So I just thought it was a mistake to address the illegality. 
20 

Senator HATCH. Well, thank you. Mr. Chairman, I am sorry. 

Mr. DEMPSEY. Senator, may I speak to that point just briefly? 

Senator HATCH. With the Chairman’s permission, yes. 

Senator BLUMENTHAL. Go ahead. Sure. 

Mr. DEMPSEY. Senator, you know, when I first heard about this 

program and the fact that it was authorized by the Court, I felt, 

okay, it must be lawful. We will look at it. Maybe we will find some 

additional tweaks that we can make to it and that will be it. If it 

has been authorized by the Court, that is the end of the story. 

But the more we looked at it, the more I came to the conclusion—and a majority of the Board came to the conclusion—that the 

program just does not fit within the statute, that it was shoehorned 

into this statute. And I think nobody, with all respect to both the 

executive branch officials and the judicial officials, nobody looked 

at the statute as carefully as we did. I think if we had come forward and opined on some balancing test or some other aspect and 

had not looked at the statute carefully, people would have criticized 

us, ‘‘Well, you did not read the statute.’’ I came to this conclusion 

slowly. I came to it a little bit to my own surprise. But as you read 

the statute, the words just do not add up to this program. 

And on the constitutional point, I want to be clear. The Board’s 

majority report says under application of existing case law, Smith 

v. Maryland and the other third-party record cases, if those were 

to be applied to this program, then you would conclude zero constitutional privacy interest in the data— therefore, not unconstitutional. 

The problem is there is no case ever addressing a program of this 

scope until the two most recent district court cases. There is no Supreme Court case that ever applied the Smith v. Maryland doctrine, the transactional records doctrine, to such an extensive program. The bottom line is nobody knows what the Supreme Court 

would say when confronted with such an extensive and ongoing 

program of this kind. That is the bottom line constitutionally, I believe. 

Senator HATCH. Well, thank you. 

If I could just ask Miss—Ms. Cook, welcome back to the Committee. We have missed you. Do you agree with Ms. Brand that the 

Board should have stayed away from the issue of legality and stuck 

to the policy questions regarding the NSA metadata program? 

Ms. COOK. I think the decision to spend such an amount of time 

and—— 

Senator HATCH. Could I point out that, as you know, more than 

a dozen federal judges, both on the Foreign Intelligence Surveillance Court and on the U.S. district court, have concluded that the 

PATRIOT Act does provide authority for the metadata program? 

Now, the President’s Review Group, who appeared before this Committee, came to that conclusion. And the Attorney General, who 

also was here just last month, strongly holds that position. The 

Board was split, though, 3–2 on this, and I just wanted to know: 

Why was the majority wrong on this issue, in your view? 

Ms. COOK. Well, I think there are two questions there. First, 

whether we should have engaged in such an extensive legal analysis. As you have noted, this program is subject to extensive judicial oversight and is currently subject to ongoing litigation in three 
21 

district courts. We are a Board of extraordinarily limited resources, 

particularly at the time we were considering this. The decision to 

do both a statutory analysis and also a Fourth Amendment analysis that really was prospective only, had costs. We have not meaningfully begun our review of the Section 702 program, nor have we 

begun to address any of the other priorities we had identified since 

the inception of our Board. 

As to the question of whether the legal analysis was incorrect, 

we have discussed the relevance issue. We have discussed the majority’s view that the records could not be produced directly to the 

NSA, both of which I disagree with. And I would also disagree with 

the majority’s analysis on the ECPA issue. 

As you are aware from 2001, one of the primary purposes of the 

amendments in 2001 to Section 215 was to eliminate any notion 

that Section 215 could be used for some types of records but not 

for other types of records. The legislative language—uses the term 

‘‘any tangible things.’’ The majority, nonetheless, imports from a 

completely different title of the code a modifier of the term ‘‘any.’’ 

I could not join that type of analysis. 

And I would also say thus far it is a pleasure to be back to the 

Committee today. 

Senator HATCH. Well, thank you, Mr. Chairman. 

Senator BLUMENTHAL. Thank you, Senator Hatch. 

Judge WALD. Senator Hatch, could I indulge upon a 30-year relationship to address very briefly—— 

Senator HATCH. Sure. 

Judge WALD [continuing]. A few of the points here. 

Senator HATCH. I have watched you all that time, by the way. 

Judge WALD. It has been a mutual watch. 

Senator HATCH. Yes, I know. 

[Laughter.] 

Judge WALD. Anyway, I would simply like to point out that our 

governing statute says, ‘‘The Board shall continually review actions 

by the executive branch related to efforts to protect the Nation 

from terrorism to determine whether such actions are consistent 

with governing laws.’’ I think part of our mandate has been to look 

at the consistency of the statute with the laws. 

I would also point out that we had requests from a number of 

Senators and a number of Members of the House to look at 215 

and 702, and in each of the letters, it was mentioned that we 

should look at the statutory basis. 

The other point which I think is certainly worth thinking about 

is Rachel Brand’s concern, I think a very legitimately motivated 

concern, that if you say that the NSA people—whom we were all 

impressed with their good faith and their diligence. If we say that 

they were operating under a statute which did not give them the 

authority to do what they are, this could be somewhat morale destructive. 

I only wish to point out, again, drawing upon my 20 court years, 

the average percentage of times in which an appellate court said 

that the lower court or the agency, and primarily the agencies in 

our cases, that the agencies had operated outside the mandate of 

the statute were numerous. And I think it was never suggested 

that we were saying these were bad people or that they had done 
22 

something that was wrong. It was rather that legal interpretations 

are difficult in complex legislation, and the fact that another body 

may disagree with the agencies’ take is something which I think 

these dedicated public servants are used to, and I would be very 

surprised if it really decreased their sense of loyalty and dedication. 

Thank you for indulging me. 

Senator BLUMENTHAL. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

Let me just ask a timing question first. When did the exercise 

that led to the report that we have in front of us begin? 

Mr. MEDINE. It began in June of last year. 

Senator WHITEHOUSE. After the disclosures? 

Mr. MEDINE. Yes, after the disclosures, a number of Members of 

Congress and the President asked us to conduct a study of the 215 

program, and we embarked on it almost immediately. 

Senator WHITEHOUSE. You were aware of the 215 program at the 

time? 

Mr. MEDINE. Prior to the unauthorized disclosures? I only joined 

the Board in late May, and I was not—— 

Senator WHITEHOUSE. Was the Board aware of the 215 program 

beforehand? Did you have—— 

Judge WALD. As I recall, Senator Whitehead—— 

Senator WHITEHOUSE. Whitehouse. 

Judge WALD. Yes. 

Senator WHITEHOUSE. It is okay. 

Judge WALD. We learned of the program shortly before that. I 

cannot give you an exact date, but I would put it at a month or 

several weeks before. 

Senator WHITEHOUSE. Why do you suppose that is, since you 

have the authority to continually review all of these programs? 

Why was it that you were not aware of this until just shortly before 

that? 

Ms. BRAND. Our agency consisted—before Mr. Medine was confirmed, our agency consisted of four part-time members who could 

work on PCLOB work about one day a week with no staff, and so 

we were struggling merely to get stood up and start to meet with 

the agencies about a variety of programs. And so we were beginning to learn about programs, but we were nowhere near, I think, 

the volume of intake that we will be at in the future. I think that 

was part of it. 

Senator WHITEHOUSE. So as far as you are concerned, nothing 

was withheld from you. It was just that you did not have the aperture to grind through all the different programs. 

Mr. DEMPSEY. Senator, we had a briefing scheduled on 215 before the Snowden leaks, and the person was hit by a bus the weekend before he was due to brief us, and we had to cancel the briefing. He was not hit by a bus. He was in a car accident. 

Ms. COOK. We have seen no indication that there was an effort 

to withhold information about this program either prior to the disclosures or subsequent to the disclosure. 

Judge WALD. I think we learned—— 
23 

Senator WHITEHOUSE. So the gap is actually on your end in 

terms of having the capacity to look into the breadth of various 

programs. 

Judge WALD. I think I would just add that this was a fairly tumultuous year in which the four of us with no staff went racing 

around trying to learn as much as we could about a variety, a wide 

variety of programs by many different agencies, not just NSA, the 

one question or the one thing I learned most was that you have to 

know how to ask the right questions. If you ask the right questions, 

the information is forthcoming. We had no instance where they 

said, ‘‘We will not tell you’’ or ‘‘We absolutely refuse.’’ But you do 

have to know how to ask a second round of questions, and we were 

just getting, I think, to that point of sophistication when the—— 

Senator WHITEHOUSE. And you had gone into operation as a body 

when? 

Judge WALD. I am sorry. What? 

Senator WHITEHOUSE. As a body, you had gone into operation on 

what date? 

Judge WALD. Sometime in August we were confirmed, in the 

prior August. 

Mr. DEMPSEY. August 2012. 

Judge WALD. Yes, and then shortly thereafter, we were sworn in. 

So I would say—— 

Ms. COOK. But there is an idiosyncracy to our statute that I 

would point out, which is that only the four part-time members 

were confirmed in August 2012. Only the Chairman has the statutory authorization to hire staff or an executive director, and Mr. 

Medine was not confirmed until May 2013. So we did not actually 

have the statutory capacity to hire staff or an executive director, 

to say nothing of our attempts to find office space, Internet, everything that needs to be done for a fledgling agency. 

Senator WHITEHOUSE. So that takes me to the question of an 

independent advocate who could appear in the Foreign Intelligence 

Surveillance Court representing a public interest. I think there is 

pretty broad agreement that that is a good idea. When you get into 

the details of how that individual gets managed and supervised, I 

get more anxious. I think if the person is an appointee of the chief 

judge of the Court or the Chief Justice of the United States, they 

risk becoming the pet lawyer of that individual. I think if the Court 

can call on them or not at its discretion, there is the risk that they 

get completely marginalized when they may have something useful 

to say. If they are not supervised by somebody, there is the risk 

that you have just created a sinecure for some individual or small 

group of individuals, and that as long as they appeal to the political galleries that are watching their behavior adequately, they 

stay on even long after they have become ineffective and not noteworthy to the Court any longer because they are ineffective. 

There are all these dangers of how you keep that focus and how 

you keep that task properly done. Make the case for why you all 

should be the oversight in the context of those dangers. 

Ms. BRAND. We have not suggested that we should be the oversight for the special advocate. I know some have suggested that we 

be the body to appoint the members, a pool of special advocates or 

appoint a special advocate. We intentionally did not recommend 
24 

that, in part because we have an oversight function of the agencies 

involved in—— 

Senator WHITEHOUSE. Okay. I am sorry. I misunderstood. I 

thought that was your suggestion. 

Ms. BRAND. No. 

Mr. MEDINE. We have recommended that the Court choose from 

private attorneys to act as a special advocate in appropriate cases, 

and then that there be reporting as to when the Court exercises its 

jurisdiction to bring those parties in. 

Senator WHITEHOUSE. How do you avoid the pet lawyer or the 

sinecure effects in that circumstance? 

Mr. MEDINE. We thought long and hard about where to put the 

special advocate. We thought first about the executive branch. We 

were concerned that it is the executive branch that is approaching 

the FISA Court for authority, and so it did not make sense to have 

the executive branch arguing against itself. We then thought about 

the judiciary, and, again, the judiciary is supposed to be an independent arbiter, and it did not make sense to have them be the 

house of the special advocate. And so we thought having a private 

outside attorney who would have the independence to come in and 

make those arguments, and hopefully with some transparency 

about who is chosen as an advocate so the public can know who 

is involved, and also transparency about when they are chosen to 

participate, we thought struck the right balance between independence and accountability. 

Senator WHITEHOUSE. It is a worrisome question to me, and I 

confess I do not have an answer to it in mind myself. But when 

you dive into something that is so inherently private and classified 

as this kind of activity, the ordinary controls—a lot of the ordinary 

controls—vanish, and that leaves some sort of small ‘‘P’’ political 

dynamics that can begin to take over, and I think every one of us 

has probably, at some point in our lives, had the experience of seeing somebody move into a position akin to this and dine out on it 

for the rest of their lives without producing much value. 

Mr. MEDINE. Well, again, that is where we hope that the rotation 

of the judges will play a role in that. We have also tried to empower the special advocate to have more appeals—take cases on 

appeal, so there is greater oversight of the process. But there is 

certainly a challenge there, but, again, we tried to strike what we 

thought was the best balance between the competing concerns. 

And, also, I guess it is worth keeping in mind, at least from what 

we have learned, that the cases in which a special advocate is appropriate do not happen all that often, and if you institutionalize 

the person, then they are out there trying to figure out what to do 

with their job as opposed to bringing in outside attorneys just on 

a case-by-case basis we thought made more sense. 

Mr. DEMPSEY. Senator, I think what we tried to do is to create 

an incremental improvement in the current structure, a relatively 

lightweight system, and to surround it with some of the reporting 

that is already inherent in the FISA oversight process. That is, already the Government is required to report to this Committee and 

the intelligence committees on significant opinions issued by the 

Court. We would supplement that by saying, ‘‘Was the special ad-
25 

vocate invoked in that case?’’ We recommend that that reporting 

come to us as well. 

And we did think that the judges genuinely wanted this capability. In our discussions with the former judges of the Court that 

we talked to, it seemed that they genuinely wanted the ability to 

call upon a special advocate in certain cases. So I think our recommendations add up to that—some internal checks and balances 

on the system. The government is currently required to notify the 

Court when there is a significant issue posed in a case. That is one 

triggering point. The judges themselves, we did conclude, are genuinely alert to those cases. They might not see all of them, but alert 

to them. Then there is the reporting to this Committee after the 

decisions are made and the question, was there the advocate, so 

you begin—you do not institutionalize it. I think that you could 

have a good enough workable system that would significantly add 

to the credibility of the process, without an institutionalized 

weighty structure. 

Senator WHITEHOUSE. I have gone well over my time, and I have 

two distinguished colleagues here whom I am trespassing upon. I 

would be delighted to have another round to continue this discussion. I yield back now. 

Senator BLUMENTHAL. If we have time, we will have another 

round. Thank you, Senator Whitehouse. 

You know, I first of all want to come back to a point that Mr. 

Medine made that we should be immensely grateful to our intelligence community for the courageous and able contribution that 

they make to protecting our national security. And I said it yesterday when the Armed Services Committee heard testimony from Director Clapper. We frequently emphasize the failings because we do 

not always see the successes. And we should be mindful of the 

courage and dedication that they demonstrate day in and day out, 

some of them in harm’s way. 

You know, I may be the only person on this Committee who feels 

this way, but I believe that the disclosure that only 30 percent of 

these records are actually collected and that the proportion has 

plummeted since 2006 is a real game changer. It calls into question 

the entire rationale for the metadata collection program. And as a 

matter of process, it really raises the question of credibility for the 

U.S. Government in the representation that it has made to the 

FISA Court, its failure to correct a representation that evidently it 

made in 2006 that 100 percent of these records were going to be 

collected, representations made to the district courts that are currently considering this issue. 

To quote the Deputy Attorney General in testimony that he gave 

in July to Congress, Deputy Attorney General James Cole said, in 

justification for this program, ‘‘If you are looking for the needle in 

the haystack, you have to have the entire haystack to look 

through.’’ 

I am just a country lawyer from Connecticut, but if I went to a 

judge—and as a prosecutor, I did—and I said, ‘‘We need a search 

warrant to look at the whole house because we believe there may 

be incriminating evidence in this house, and we need to search 

through every room, and that is why we are asking for the warrant 

to search the whole house.’’ And then the police, under my author-
26 

ity, went to the house and only looked at maybe a few rooms and 

decided either they did not have time or the rooms were dark or 

some were locked, I would feel an obligation to go back to the judge 

and say, ‘‘Your Honor, we need to at least tell you about the 

search,’’ and I could think of a number of analogous situations comparable to it. And the question of whether the whole house needs 

to be searched is in question. 

In this instance, the rationale for this program is that all of the 

data has to be collected so that connections can be made, algorithms can be applied, analysis can disclose whether or not there 

are communications that may raise national security concerns. 

So I guess my question to the panel, and particularly to the dissenters, Ms. Brand and Ms. Cook, doesn’t this disclosure that only 

30 percent of these records were actually collected because of the 

explosion in cell phone use, a legitimate reason, perhaps, that the 

government was unable to collect all of them, raise questions not 

only about the efficacy of the program but also about its legal foundation? 

Ms. BRAND. I think for the reasons that the Chairman explained, 

it is touchy for us to talk about this because I am not clear exactly 

on what is classified and what is true, and so we cannot get into 

that here. But on a prospective basis, if there were an institutional 

reason why the government would only be able to collect 30 percent 

of the records and that is it forever, that would diminish the value 

of the program from what it would be if they collected 100 percent 

of the record. I agree with that. 

You know, another thing that I want to point out is that something I said in my separate statement, and I think others on the 

Board agree, is that for any program like this, the government 

should be continually assessing the value of the program and 

whether it has diminished—or it could increase—but whether it 

has diminished over time in light of changed circumstances, 

changed behavior of suspects, changed behavior of the public, additional legal tools that might be available, or other changes in the 

law, everything, and continually assess whether they should continue a program. I think they do that already on an informal basis, 

but I think a more formalized process in which the Privacy Board 

would be involved would be a good thing. 

Mr. MEDINE. And, Senator, we certainly all agree that there 

should be an ongoing assessment of efficacy of these programs. But 

if I could just return to your first point for a moment with regard 

to the dedication of the workers in the intelligence community, 

again, just to restate that, we have found them extraordinarily 

dedicated. And I just want to make clear that our recommendations 

about the legality of the program have nothing to do with the good 

faith in which they have operated and the administration has operated and the courts have operated with regard to this program. 

Our effort is to take a look—our mandate is to talk about—look at 

privacy and civil liberties and what protections are available. Section 215 does have protections, and we think on a prospective 

basis, even to the extent the program continues for a short period, 

those protections ought to be in place. And so our effort is to look 

forward, not to impugn at all the good faith of anyone who has relied on either constitutional issues or statutory issues. 
27 

Senator BLUMENTHAL. Because we are running out of time, I am 

going to cut short my questions, but just make the observation that 

I believe that the constitutional advocate, far from being a lightweight institution, has to be a real heavyweight to protect the Constitution. And I would err on the side of giving that person or office 

the resources, the authority, the personnel, and ultimately the 

credibility that will enhance the trust and confidence of the American people in the constitutionality of this process and its legality. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

I am just a little confused from my first set of questions, so I 

just—because it seems a little at odds with the report, and any of 

you can weigh in on this, please. On page 205—well, let me first 

go on—Recommendation 9 says ‘‘ . . . the government publicly disclose more detailed statistics to provide a more complete picture of 

government surveillance operations.’’ 

And then on page 205, you say, ‘‘ . . . if a statute such as Section 

215 continues to be used as the basis both for individualized collection and bulk collection, the mere number of Section 215 orders 

could be misleading.’’ 

So when I asked about transparency before and putting out the 

number of—and right now this Washington Post article is speaking 

to the issue of how many numbers or how many phone calls are 

being collected—and that is collected—it just seems to me—and 

since the number of orders is, as you say, misleading, I do not understand your answer. I do not understand why revealing the number of numbers that are caught up in this collection is not more 

transparency and does not give Americans a better idea of the dimension of this so that Americans can decide for themselves what 

this program is and whether it is legitimate or whether it is proper. 

Mr. DEMPSEY. Senator, you have been a leader on this issue, and 

I do not in any way want to lose sight of what I think is substantial agreement between us and probably between all the members 

of the Board and you on the importance of transparency and the 

value of numbers as a component of transparency. I was simply responding to what I think is an important, but in some ways narrow, question, which is how do we handle numerical reporting on 

bulk collection programs as opposed to numerical reporting on targeted programs, which I think everybody agrees, and some 

progress has been made and more could be made on the numerical 

reporting, how many orders, how many accounts affected on the 

targeted side. So that is not what I think you and I are talking 

about now. We are talking about the bulk side—— 

Senator FRANKEN. Right. 

Mr. DEMPSEY [continuing]. Where obviously one order or three 

orders or five orders could be meaningless if millions and millions 

of people are affected. On the other hand, we were thinking here, 

what about the next program and the next program and the next 

program? And how do we deal with—again, if 215 stays as it is— 

how do we deal with bulk reporting on the next program and the 

next program and the next program? 

Senator FRANKEN. What about the program that exists? This 

is—— 

Mr. DEMPSEY. This is a program that exists—— 
28 

Senator FRANKEN. Americans know about this program, and we 

still have not really given them—I mean, the Washington Post will 

put it in an article. Why can’t the government tell us the number 

of telephone numbers that are having their data collected? And 

then how many are being queried? That would give people some 

idea of the scope of this program and what it is doing. And I think 

Americans deserve to have that information in order to decide for 

themselves—and I think it would be very helpful. 

And, listen, I agree with both the Chairman and Mr. Medine on 

our intelligence people. I believe that they are doing the best job 

they can. But we have oversight, and part of the oversight to me 

is what you talk about, how important transparency is. And I am 

very confused about what you write in your report and what your 

answer was to my first question in my first set of questions. 

Mr. DEMPSEY. Do not let me hog it here, because others can have 

views. I will simply say I agree on the numbers of the queries, that 

the reporting there has been disclosed and could be disclosed. 

Senator FRANKEN. It has been? 

Mr. DEMPSEY. I am 99 percent sure that the government has declassified, at least for one year—— 

Judge WALD. So-called RAS—— 

Mr. DEMPSEY [continuing]. The number of queries made against 

the data base. 

Judge WALD. There are 300—yes, actually if I could, Senator 

Franken, one, speaking for myself, I agree that Americans, their 

first and primary question is going to be, you know, How big is 

this? How many Americans are likely affected by this program? 

To the extent that this information can be disclosed without 

hurting national security, the burden would be on the government 

to show why it would be a national security problem, but to approximate as close as you can get to that number without there being 

any security problems. But as Jim suggested, the so-called RASs 

are used to query this entire data bank, and obviously there is 

some confusion from the newspaper accounts as to how big that 

bank is. But they have disclosed that they query it with the socalled RASs, a reasonable, articulable suspicion, in the area of 300 

times a year. What we do not know from that is how many numbers they access on a first hop or a second hop or even a third hop. 

You have to be very careful in defining what number you want because, as we learned, the way the system operates is this. When 

you get the first hop as to which numbers the suspicious number 

has been in contact with, what happens is the analysts look at all 

the numbers that pop up, and they may look at several of them 

and say, ‘‘That is of no interest to us. We know automatically that 

that is some kind of number that has no interest to us, so we will 

only look at one out of the 12 or one out of the 10.’’ Or they may 

look at them all, or they may look at some and discard them. And 

then you go to the second hop from all of those numbers, and you 

get, you know, a wider and wider swath. 

But I do think your general notion that Americans are most interested in some notion of the scope of people who have been affected is one that the government and the Congress and all other 

people should work toward approximating, unless the government 

can show that there is some national security danger there. 
29 

Mr. MEDINE. I also wanted to add that one of the policy reasons 

why we recommended ending this program is that concern by 

Americans that they are being surveiled, and whether it is 30 percent or 100 percent, knowing that the government is collecting your 

phone calls to your lawyer, to your political organization, to a journalist has a chilling effect, and that is why we think it is preferable 

to not have the government maintain this bulk data but use other 

authorities and have the information held elsewhere. 

Senator FRANKEN. I know—but no matter where it is held, that 

is problematic. But I know the vote has been called, and we have 

got to go. 

Senator BLUMENTHAL. Senator Whitehouse, did you have other 

questions that you would like to—— 

Senator WHITEHOUSE. Perhaps as an observation, but you can respond, and if our time runs out, if you want to respond for the 

record, that is fine. 

This is probably the most overseen program in the history of the 

American intelligence community. Setting aside the intelligence 

community, it is probably one of the most overseen government 

programs ever anywhere. It was managed by NSA, but it was overseen by the Department of Justice and the ODNI. With NSA you 

had relatively independent bodies like the Inspector General, the 

Office of the Director of Compliance, the General Counsel’s Office 

which had important roles in it. It was reported quarterly to the 

President’s Intelligence Oversight Board. You had a full-time court 

with multiple judges overseeing it. I think they used to say that 

there were more than 30 different congressional committees that 

had oversight authority over it, but certainly the intelligence committees, this Committee, equivalent committees in the House all 

had oversight over it. It is hard to imagine how you could apply 

more oversight and have it make an incremental difference if you 

add one more office to the wide array of offices that are already engaged in oversight. 

So to the extent that there was an oversight problem, it raises, 

to me, the question more about the quality of the oversight and the 

organization of the oversight rather than the quantity of it, because 

we certainly threw more oversight at this program than anything 

in history. And I just am interested in your reactions to that 

thought. I do not think one more patch is going to help when there 

is such a huge quilt of oversight patchwork there already. 

Mr. MEDINE. I think there are a number of things. One is—and 

I do not want to overstate our capabilities, but our Board is now 

an independent agency with high-level clearances, with authority 

to see all the information regarding these programs and report our 

independent views without any review prior by the White House or 

anyone else to the Congress, the President, and the public, as we 

have done with regard to this program. We will not be able to be 

everywhere, by any means. We are very small and we will probably 

stay relatively small. But in those areas where we look, we can—— 

Senator WHITEHOUSE. The Inspectors General are in the same 

position. 

Mr. MEDINE. Right. But our focus is on national security, a balance of privacy and civil liberties. They have obviously a much 
30 

broader focus. So I think—I hope we can contribute in some way 

going forward. And as we have recommended—— 

Senator WHITEHOUSE. Let me not put you in the position of trying to defend that you should have some role going forward. My 

point is when you have got this vast array of oversight already, the 

most overseen program in history, adding one more thing I do not 

think is a convincing argument on its own. I think that we have 

got to take a look at the structure of this patchwork and array of 

oversight and see if, in fact, there were oversight problems, what 

do they go back to? I do not mind adding you to the equation. That 

is not my point. My point is there is already so much oversight that 

I cannot believe that adding you is going to make a huge marginal 

difference. It will make a good difference, and I do not object to 

your further participation in this. But I really think that to the extent that oversight is condemned in all of this, the solution is not 

adding more small elements of oversight to an already vastly overseen, multiply overseen—frankly, hard to imagine how you could 

add more oversight to it other than yourselves. I mean, every 

branch of government is covered, every House of Congress is covered, the executive branch has multiple redundant coverage. 

Mr. MEDINE. Senator, if I could, I think you are exact—you are 

100 percent right. I actually think that is why the value of our 

Board and what needs to be done is, I think what we did was we 

pulled back and said, wait a second, where is the legal foundation 

for this? Upon what structure has all of that oversight been created? And we concluded, the majority, that the foundation itself 

was inadequate. And then, I do believe, we took, remarkably, the 

most in-depth look at effectiveness and looked, I believe, more 

closely and probingly at effectiveness and again concluded that the 

program came up short. But those two questions—what is the legal 

foundation and what is the effectiveness, despite all of that structure, I believe they never really got, in 10 years of this program, 

adequate attention. 

Senator BLUMENTHAL. And I want to take the prerogative of the 

Chair to observe, in response to Senator Whitehouse’s point, that 

none of the oversight was adversarial in nature, which is why I 

propose the constitutional advocate. Courts always do better when 

they hear both sides. The process is well served when there is contention, as there was within this Board. And I might just point out 

that the dissent by Ms. Brand says, in commenting on whether the 

Board should consider the legal question, as you very thoughtfully 

observed, and I am quoting, ‘‘This legal question will be resolved 

by the courts, not by this Board, which does not have the benefit 

of traditional adversarial legal briefing and is not particularly well 

suited to conducting de novo review of long-standing statutory interpretations.’’ 

At least part of that observation can be said of the FISA Court 

and of the legal review and perhaps factual review that has been 

conducted in this program. The oversight may have been numerically abundant, but as you observed, Senator Whitehouse, potentially lacking in quality. 

So I am going to have to go to the vote. Senator Whitehouse 

moves more quickly, so he may—— 
31 

Senator WHITEHOUSE. No, we will go ahead, and I will let the 

Chairman conclude the hearing. I would just note in reply that the 

great adverse relationship that the Founding Fathers built into the 

Constitution was the adverse relationship between the legislative 

and the executive branches, which they characterized as one of 

jealousy and rivalry that was to be harnessed for the good of the 

public. So I would hate to think that just because there was not 

a lawyer in the courtroom with a general public interest purpose, 

that there was not adversarialness in all of this. There should have 

been, and the structure of our government creates that 

adversarialness. And if that has not been adverse enough, then 

that is our fault. But it is not the fault of the lack of an additional 

lawyer in the courtroom at the FISA Court. 

Senator BLUMENTHAL. I do not think lawyers are necessary for 

adversarial contention, but I think your point is well taken. And 

I am going to close the hearing, leave the record open for one week, 

and, again, thank the panel for being here, for your very thoughtful 

and insightful and very helpful testimony, and again thank our entire intelligence community that day in and day out works to grapple with these very difficult and challenging questions. 

Thank you, and the hearing is closed. 

[Whereupon, at 11:48 a.m., the Committee was adjourned.] 

(33) 

A P P E N D I X 
34 

PREPARED STATEMENT OF CHAIRMAN PATRICK LEAHY
35 
36 

BACKGROUND INFORMATION ON DAVID MEDINE, RACHEL L. BRAND, ELISEBETH

COLLINS COOK, JAMES X. DEMPSEY, AND JUDGE PATRICIA M. WALD
37 
38 

QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR DAVID MEDINE
39 

QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR RACHEL BRAND
40 

QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR ELISEBETH COLLINS COOK
41 

QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR CHAIRMAN DAVID MEDINE, JAMES

DEMPSEY, AND JUDGE PATRICIA WALD
42 

RESPONSES OF DAVID MEDINE TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
43 
44 
45 

RESPONSES OF RACHEL BRAND TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
46 
47 
48 

RESPONSES OF ELISEBETH COLLINS COOK TO QUESTIONS SUBMITTED BY SENATOR

GRASSLEY
49 
50 
51 

RESPONSES OF CHAIRMAN DAVID MEDINE, JAMES DEMPSEY, JUDGE PATRICIA WALD

TO QUESTIONS SUBMITTED BY SENATOR GRASSLEY
52 
53 
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SUBMISSIONS FOR THE RECORD NOT PRINTED DUE TO VOLUMINOUS NATURE, PREVIOUSLY PRINTED BY AN AGENCY OF THE FEDERAL GOVERNMENT OR OTHER CRITERIA DETERMINED BY THE COMMITTEE, LIST

http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-onthe-Telephone-Records-Program.pdf 

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