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38–878 2008

FISA HEARING 

HEARING 

BEFORE THE

PERMANENT SELECT COMMITTEE 

ON INTELLIGENCE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

Hearing held in Washington, DC, September 20, 2007. 

( 

Printed for the use of the Committee 


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PERMANENT SELECT COMMITTEE ON INTELLIGENCE 

SILVESTRE REYES, Texas, Chairman 

ALCEE L. HASTINGS, Florida 

LEONARD L. BOSWELL, Iowa 

ROBERT E. (BUD) CRAMER, Alabama 

ANNA G. ESHOO, California 

RUSH D. HOLT, New Jersey 

C.A. DUTCH RUPPERSBERGER, Maryland 

JOHN F. TIERNEY, Massachusetts 

MIKE THOMPSON, California 

JANICE D. SCHAKOWSKY, Illinois 

JAMES R. LANGEVIN, Rhode Island 

PATRICK J. MURPHY, Pennsylvania 

PETER HOEKSTRA, Michigan 

TERRY EVERETT, Alabama 

ELTON GALLEGLY, California 

HEATHER WILSON, New Mexico 

MAC THORNBERRY, Texas 

JOHN M. MCHUGH, New York 

TODD TIAHRT, Kansas 

MIKE ROGERS, Michigan 

DARRELL E. ISSA, California 

NANCY PELOSI, California, Speaker, Ex Officio Member 

JOHN A. BOEHNER, Ohio, Minority Leader, Ex Officio Member 

MICHAEL DELANEY, Staff Director 


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FISA HEARING 

THURSDAY, SEPTEMBER 20, 2007 

HOUSE OF REPRESENTATIVES, 

PERMANENT SELECT COMMITTEE ON INTELLIGENCE, 

Washington, DC. 

The committee met, pursuant to call, at 9:15 a.m., in room 1300, 

Longworth House Office Building, the Honorable Silvestre Reyes 

(chairman of the committee) presiding. 

Present: Representatives Reyes, Cramer, Eshoo, Holt, 

Ruppersberger, Tierney, Thompson, Schakowsky, Langevin, Murphy, Hoekstra, Gallegly, Wilson, Thornberry, Tiahrt, and Issa. 

Staff Present: Michael Delaney, Staff Director; Wyndee Parker, 

Deputy Staff Director/General Counsel; Jeremy Bash, Chief Counsel; Mieke Eoyang, Professional Staff; Eric Greenwald, Professional 

Staff; Don Vieira, Professional Staff; Mark Young, Professional 

Staff; Kristin R. Jepson, Security Director; Stephanie Leaman, Executive Assistant; Courtney Littig, Chief Clerk; Caryn Wagner, 

Budget Director; Chandler Lockhart, Staff Assistant; Josh Resnick, 

Staff Assistant; Brandon Smith, Systems Administrator; Chris 

Donesa, Deputy Minority Staff Director/Chief Counsel; John W. 

Heath, Minority Professional Staff; James Lewis, Minority Professional Staff; and Jamal Ware, Minority Press Secretary. 

The CHAIRMAN. The committee will please come to order. 

Today, the Committee will receive testimony from the Director of 

National Intelligence, Admiral Michael McConnell, and the Assistant Attorney General for National Security, Mr. Kenneth 

Wainstein, who will join us shortly, concerning the Foreign Intelligence Surveillance Act and the recently enacted legislation that 

expanded the administration’s surveillance powers, the Protect 

America Act, or, as commonly referred to, the PAA. 

We are here today to discuss this legislation and deal with what 

I think is one of the most critical issues of our time: the need to 

balance measures intended to protect the homeland with preserving civil liberties. 

So, in that respect, I want to welcome our witness, Admiral 

McConnell and when Mr. Wainstein gets here as well to our hearing here. 

I believe that getting this right is fundamental to the proper 

functioning of this great democracy, and I believe that Congress 

must do everything that it can to give the Intelligence Community 

what it needs to protect America, at the same time ensuring that 

we do not abandon the fundamental principles of liberty that 

underpinned our Constitution. 


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For more than 200 years, we have managed to have both liberty 

and security, and I intend to do my part to ensure that we continue 

to maintain this careful balance in the years to come. 

This brings me to the recent modifications to FISA that Congress 

passed on the eve of our August recess, legislation that I believe 

alters that precious balance between liberty and security in an unnecessary and perhaps even dangerous way. 

I want to begin by setting the record straight about the concerns 

that have been raised over the expansive scope of the new law. 

There has been a lot of rhetoric from the administration and 

some in Congress suggesting that critics of the new Act are placing 

the rights of foreigners and terrorists before the need to protect 

America. Our position shouldn’t be characterized as seeking to protect the rights of foreigners, plain and simple. Our concerns are 

about protecting the rights of Americans, not foreigners abroad. 

Thus, we are concerned for the privacy of Americans who may happen to be communicating with someone abroad. 

To be clear, when a doctor living in Los Angeles calls a relative 

living abroad, I am concerned about her rights. When a soldier 

serving in Iraq or Afghanistan emails home to let his family know 

that he made it back from his latest mission, I am concerned about 

his rights and the rights of his family. 

But, under the new law, we have allowed the government to 

intercept these calls and these emails without a warrant and without any real supervision from the judicial branch. In doing so, we 

have unnecessarily put liberty in jeopardy by handing unchecked 

power to the executive branch. I say unnecessarily because there 

was no need to do this in this particular way. There was an alternative, but the administration chose to torpedo it. 

With that, let me explain. In late July, the Director of National 

Intelligence came to us and identified a specific gap which he described publicly as a backlog with respect to the FISA process that 

he claimed had placed our country in a heightened state of danger. 

At first, he said that he needed two things: number one, a way 

to conduct surveillance of foreign targets in a block without individual determinations of probable cause; and, two, a way to compel 

communications carriers to cooperate. We gave him both of those 

powers. 

After we shared our draft legislation with him, he came back to 

Congress and said that he wanted three more things. We again 

agreed and tailored our bill to provide each of these three things. 

That bill, H.R. 3356, was a result of substantial and I believe at 

the time good-faith negotiations with Admiral McConnell. 

We gave Director McConnell everything he said that he needed 

to protect America. But it also did something else. It also protected 

our Constitution. 

Yet, at the final hour and without explanation, after having repeatedly assured us that the negotiations had been in good faith, 

the administration rejected that proposal. Director McConnell not 

only rejected it, he issued a statement urging Congress to vote it 

down, claiming it would not allow him to carry out his responsibility to protect our Nation. 

Director McConnell, today, in your testimony, I would like to 

hear your side of this story. 


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I want to hear why it is that even though we tailored legislation 

to meet your requirements you still rejected it. 

I want to hear why you believe that H.R. 3356 would not have 

allowed you to do your job and why you issued a statement to that 

effect on the eve of the House vote. 

I want to know what specifically you believe was lacking in H.R. 

3356. 

And, most importantly, Admiral McConnell, I want to know what 

it is about the inclusion of proper checks and balances and oversight in our bill that you found so unacceptable. 

These are important questions, because Congress intends to 

enact new legislation as soon as possible as a replacement to the 

administration’s bill. In early October, at the Speaker’s request, 

this committee will mark up FISA legislation to address the needs 

of our Intelligence Community. 

The new legislation will deal with the deep flaws in the administration’s bill: the vague and confusing language that allows for 

warrantless physical searches of America’s homes, offices, and computers; the conversion of the FISA Court into what we believe is 

a rubber stamp; and the insufficient protections for Americans who 

are having their phone calls listened to and emails read under this 

new authority as we speak here today. 

Before closing, I want to take this opportunity to reiterate a critically important request for documentation regarding the NSA surveillance program that still remains outstanding. 

As I have said before, to date, the administration refuses to 

share critical information about this program with Congress. More 

than 3 months ago, Ranking Member Hoekstra and I sent a letter 

to the Attorney General and the DNI requesting copies of the 

President’s authorizations and the DOJ legal opinions. We have yet 

to receive this information. 

Congress cannot and should not be expected to legislate on such 

important matters in the dark. I would hope that, Admiral McConnell, you and Mr. Wainstein, when he gets here, will help us in getting this material so that we can have a clear understanding of the 

issues that we are dealing with as a committee. 

So I look forward to this hearing, and I want to now recognize 

the ranking member for any statement that he may wish to make. 

Mr. HOEKSTRA. Thank you, Mr. Chairman. Good morning. 

Good morning, Director McConnell, and we appreciate you being 

here. We also appreciate all of the work that you did back in July 

to make sure that we got a bill through the House and through the 

Senate to the President’s desk that enabled us to provide the NSA, 

the Intelligence Community, with the flexibility, the agility and the 

tools that it needed to keep us safe. 

You know, Republicans weren’t invited to be a part of the negotiations as the Democratic bill was developed; and, you know, that 

was a disappointing effort. You know, most of the time, things in 

the Intelligence Committee, we have tried to do these things in bipartisan ways. But since we weren’t part of the process, the only 

thing we could do was take a look at the end results. And there 

is no doubt that the bill that passed the House in a bipartisan 

basis, the bill that passed the Senate in a bipartisan basis did exactly what you had identified needed to happen: one, a bill in a 


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piece of legislation that could become law that would give the Intelligence Community the tools that it needed to be successful to keep 

America safe and provided very appropriately the kind of balance 

that we need to protect American civil liberties. 

Today’s hearing highlights the critical need for speed and agility. 

In intelligence collection, one of the things that we have learned is 

that an Intelligence Community that for so many years was designed to be one step faster than the former Soviet Union in the 

threat that came from the former Soviet Union was not going to 

be good enough to face the threat that we face from radical 

jihadists today. So the changes that we need and the changes that 

were made were designed to keep and to put the Intelligence Community in step with where technology was today and where the 

threat level was. 

Since the President signed the bill, the Intelligence Community 

has succeeded in closing that intelligence gap that you identified in 

July. There should be no significant disagreement that the Protect 

America Act has improved our intelligence capabilities, made our 

country safer; and, regardless of the specific authorities used, the 

recent terrorism-related arrests in Germany and Denmark demonstrated why timely intelligence collection is so critical and why 

we must ensure that the professionals at our intelligence agencies 

continue to have the streamlined and effective tools at their disposal. 

Not only did the Intelligence Community effectively take and 

participate in taking down these threats, we also know that these 

threats continue. There have been a couple of bin Laden tapes. 

There is a Zawahiri tape that may be out there today. We will have 

to wait for the Intelligence Community to validate its authenticity. 

There are rumors of another bin Laden tape. 

But some of us were in the war zone over the weekend. We were 

in Afghanistan, we were in Pakistan, we were in Iraq, and we 

talked to the intelligence folks and our folks on the ground, and we 

asked them about the threat and said, hey, is there any way that 

we possibly miscalculated this threat, that it is overblown? And 

consistently the people have come back and said now this threat 

is real. 

And one of the comments that came out that kind of sticks with 

me is one of our folks said, you know, we see threats all the time, 

we are working on threats all the time, and these are the kinds of 

things that I wouldn’t want my parents to know about, the kinds 

of things that these people would like to do against the homeland. 

And that is why it is important that America cannot afford to go 

dark and reopen the intelligence gaps under FISA. 

You know, earlier this week, the committee received testimony 

information from the administration, other outside groups, that I 

hope have put to rest that the myth that the Protect America Act 

somehow reduces civil liberties protections for Americans. As Director McConnell and Mr. Wainstein will again, I think, will reaffirm 

today, the law does not permit reverse targeting of Americans or 

the searches of the homes and businesses of ordinary citizens that 

some have breathlessly contained in the bill. 

The Department of Justice has made it clear that it believes it 

must seek a court order to target the communications of AmeriVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00006 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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cans, and the committee will continue to carefully ensure that it 

does so. 

We also learned that some of the activists, special interest groups 

that testified seek not to preserve the structure of FISA as we have 

known it but instead want to impose substantial and crippling new 

restrictions on our intelligence agency. If you go back and you read 

some of the testimony, it is clear. They do want to provide the civil 

liberties protections that we give to American citizens and people 

residing within our borders. They want to extend those rights to 

foreign individuals, including foreign terrorists, and that is the sum 

and total of what they intend to do. 

With that, Mr. Chairman, I will submit my entire statement for 

the record and yield back the balance of my time. 

The CHAIRMAN. Without objection. 

[The statement of Mr. Hoekstra follows:] 


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The CHAIRMAN. We have been joined by Mr. Wainstein. 

Mr. Wainstein, welcome to the hearing. We appreciate your participating here this morning. 

Mr. WAINSTEIN. Thank you, Mr. Chairman. 

The CHAIRMAN. With that—— 

Mr. ISSA. If I could make a brief opening statement. One minute. 

The CHAIRMAN. Okay. Mr. Issa is recognized for one minute. 

Mr. ISSA. I do think that something needs to be cleared up in 

real time. 

During your opening statements, Mr. Chairman, I think unintentionally you talked about soldiers phoning or emailing home; and 

I think it is important to have in the record that, in fact, in World 

War II, in fact, in Korea and, in fact, in Vietnam, no soldier had 

an expectation that his phone calls or his emails, which didn’t exist 

then, but his regular mails were not going to be potentially 

censored. In fact, someone only has to watch an old version of 

MASH to see what things looked like after they went through scrutiny on mail to find out whether or not it might divulge information 

from the battlefield. 

So I would hope that when we go through this dialogue we not 

use our soldiers risking their lives and limbs as somehow a group 

that expects not to have communication heard. Just the opposite. 

I would say that our men and women in uniform are the first to 

say I am not worried about what you listen to or email coming 

from the battlefield. Just the opposite. I need to be kept safe by 

making sure that in fact we do secure that kind of information 

coming from Afghanistan and Iraq. 

So I know the chairman is a soldier himself and didn’t intend to 

misstate that, but I thought it had to be put into the record, and 

I yield back. 

The CHAIRMAN. Well, I want to thank my colleague from California for clarifying the fact that we may be spying on our own soldiers. 

The CHAIRMAN. With that, Director McConnell, you are recognized for your opening statement. 

STATEMENT OF MICHAEL McCONNELL, DIRECTOR OF 

NATIONAL INTELLIGENCE 

Director MCCONNELL. Thank you, Chairman Reyes, Ranking 

Member Hoekstra, members of the committee. It is a pleasure to 

appear before you today. I appreciate the opportunity to discuss the 

Protect America Act, as we refer to it as PAA, and the need for 

lasting modernization of the Foreign Intelligence Surveillance Act, 

which we refer to as FISA. I am pleased to be joined today by Assistant Attorney General Ken Wainstein of the Department of Justice, National Security Division. 

It is my belief that the first responsibility of intelligence is to 

achieve understanding and to provide warning. As the head of the 

Nation’s Intelligence Community, it is not only my desire but in 

fact my duty to encourage changes to policy and procedures and, 

where needed, legislation to improve our ability to provide warning 

of terrorist or other attacks of the country. 

On taking up this post, it became clear to me that our foreign 

intelligence capabilities were being degraded. I learned that collecVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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tion using authorities provided by FISA continued to be instrumental in protecting the Nation, but, due to changes in technology, 

the law was actually preventing us from collecting foreign intelligence. 

I learned that Members of Congress in both Chambers and on 

both sides of the aisle had, in fact, proposed legislation to modernize FISA; and this was accomplished in 2006. In fact, a bill was 

passed in the House in 2006. And so the dialogue on FISA has been 

on going for some time. This has been a constructive dialogue, and 

I hope it continues in the furtherance of serving the Nation to protect our citizens. 

None of us want a repeat of the 9/11 attacks, although al-Qa’ida 

has stated their intention to conduct another such attack. 

As is well known to this committee, FISA is the Nation’s statute 

for conducting electronic surveillance, a very important term, electronic surveillance. That is some of our disagreement on interpretation, and we will have more to say about that later. 

The other part of the Act is for physical search for foreign intelligence purposes. 

When passed in 1978, FISA was carefully crafted to balance the 

Nation’s need for collection of foreign intelligence information with 

the need to provide protection for civil liberties and privacy rights 

of our citizens. There were abuses of civil liberties from the 1940s 

to the 1970s that were galvanized by the abuses of Watergate that 

led to this action we call FISA. 

The 1978 law created a special court, a Foreign Intelligence Surveillance Court, to provide judicial review of the process. The 

Court’s members devote a considerable amount of their time and 

efforts while at the same time fulfilling their district court responsibilities. We are indeed grateful for their service. 

FISA is very complex, therein the problem. It is extremely complex. And in our dialogue today what we will examine is if you insert a word or a phrase, it has potentially unintended consequences, and that is the sum of our disagreement over not being 

able to examine the unintended consequences due to the press of 

time. 

It has a number of substantial requirements, detailed applications, constant, extensive, factual information that require approval 

by several high-ranking officials in the executive branch before it 

even goes to the Court. The applications are carefully prepared, 

and they are subject to multiple levels of review for legal and factual sufficiency. 

It is my steadfast belief that the balance struck by the Congress 

in 1978 was not only elegant, it was the right balance to allow my 

Community to conduct foreign intelligence while protecting Americans. 

Why did we need the changes that the Congress passed in August? FISA’s definition—and I mentioned this earlier—electronic 

surveillance simply did not keep pace with technology. Let me explain what I mean by this: FISA was enacted before cell phones, 

before email, and before the Internet was a tool used by hundreds 

of millions of people, to include terrorists. 

When the law was passed in 1978, almost all local calls in the 

United States were on a wire, and almost all international calls 


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were in the air known as wireless. Therefore, FISA was written in 

1978 to distinguish between collection on wire and collection out of 

the air. 

Today, the situation is completely reversed. Most international 

communications are on a wire fiber optic cable, and local calls are 

in the air. 

FISA was originally—FISA also originally placed a premium on 

the location of the collection. There was the cause of our problem. 

On a wire in the United States equaled a warrant requirement, 

even if it was against a foreign person located overseas. 

Because of these changes in technology, communications intended to be excluded from FISA in 1978 were, in fact, frequently 

included in 2007. This had real consequences. It meant the community in a significant number of cases was required to demonstrate 

probable cause to a court to collect communications of a foreign intelligence target located overseas. 

That is very important, and I would emphasize it: probable cause 

level of justification to collect against a foreign target located overseas. 

Because of this, the old FISA’s requirements prevented the Intelligence Community from collecting important intelligence information on current threats. 

In a debate over the summer and since, I have heard individuals 

both inside the government and outside assert that the threats to 

our Nation do not justify this authority. Indeed, I have been accused of exaggerating the threat that the Nation faces. Allow me 

to attempt to dispel that notion. 

The threats that we face are real, and they are serious. In July 

of this year, we released a National Intelligence Estimate, referred 

to as the NIE, on the terrorist threat to the homeland. The NIE 

is the Community’s most authoritative written judgment on a particular subject. It is coordinated among all 16 agencies of the Community. The key judgements from this NIE are posted on our Web 

site, and I would encourage all to review the full details. 

In short, the NIE’s assessments stated the following: The U.S. 

homeland will face a persistent and evolving terrorist threat over 

the 3 years that is the period of the estimate. The main threats 

come from Islamic terrorist groups and cells and, most especially, 

al-Qa’ida. Al-Qa’ida continues to coordinate with regional groups 

such as al-Qa’ida in Iraq, across northern Africa and in other regions. Al-Qa’ida is likely to continue to focus on prominent political, 

economic, and infrastructure targets with the goal of producing 

mass casualties. I repeat for effect: with the goal of producing mass 

casualties. 

Also, the goal is visually dramatic destruction, significant economic aftershock and fear in the U.S. population. 

These terrorists are weapons proficient, they are innovative, and 

they are persistent. Al-Qa’ida will continue to try to acquire chemical, biological, radiological and nuclear material for attacks; and, 

if achieved, they will use them, given the opportunity to do so. 

Global trends and technology will continue to enable even small 

numbers of alienated people to find and connect with one another, 

justify their anger, even intensify their anger and mobilize resources to attack, all without requiring a centralized terrorist orgaVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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nization, training camp or leader. This is the threat we face today 

and one that our Community is challenged to counter. 

Moreover, these threats we face are not limited to terrorism. 

Countering the proliferation of weapons of mass destruction is also 

an urgent priority, and FISA is most frequently the source of information in that area. 

The Protect America Act updating FISA passed by Congress and 

signed into law by the President on the 5th of August has already 

made the Nation safer. After the law was passed, we took immediate action to close critical gaps related to terrorist threats. The 

Act enabled us to do this because it contained the five following pillars: 

It clarified the definition of electronic surveillance under FISA in 

that it should not be construed to encompass surveillance directed 

at a person reasonably believed to be located outside the United 

States. 

Second, under the Act, we are now required to submit to the 

FISA Court for approval the procedures we use to determine that 

a target of the acquisition is a person outside of the United States. 

This portion is new and was added to give the Congress and the 

public more confidence in the process. 

In addition to oversight by the Congress, the new FISA procedures involving foreign threats are now overseen by the courts. 

The Act allows the Attorney General and the DNI to direct communication providers to cooperate with us to acquire foreign intelligence information. 

The Act also provides liability protection proscriptively for private parties who assist us when we are directing with a lawful directive to collect foreign intelligence information. 

And, most importantly, most importantly to this committee and 

certainly to me, FISA, as amended by the Protect America Act, continues to require that we obtain a court order to conduct electronic 

surveillance or physical search against all persons located inside 

the United States. 

I ask your partnership in working for a meaningful update to 

this important law that assists us in protecting the Nation while 

protecting our values. 

There are three key areas that continue to need attention: 

The reasons that I have outlined today is critical that FISA’s definition of electronic surveillance be amended permanently so that 

it does not cover foreign intelligence targets reasonably believed to 

be located outside the United States. 

Second, I call on Congress to act swiftly to provide retroactive liability protection to the private sector. It is important to keep in 

mind that the Intelligence Community often needs the assistance 

of the private sector to protect the Nation. We simply cannot go 

alone. We must provide protection to the private sector so that they 

can assist the Community in protecting the Nation, while adhering 

to their own corporate fiduciary duties. 

Thirdly, in April of 2007, in a bill that we submitted to Congress, 

we asked for a number of streamlining provisions that would make 

processing FISA applications more effective and efficient. These 

changes would substantially improve the FISA process without affecting the important substantive requirements of the law. 


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Finally, we understand and fully support the requirement for the 

Community to obtain a court order or a warrant any time we target a target for foreign surveillance that is located inside the 

United States. That was true in 1978 when the law was originally 

passed. It is true today with the update that became law last 

month. 

Mr. Chairman, that completes my remarks. I would be happy to 

answer your questions. 

The CHAIRMAN. Thank you, Admiral. 

[The statement of Director McConnell follows:] 


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The CHAIRMAN. With that, we recognize Mr. Wainstein for his 

opening statement. 

STATEMENT OF KENNETH WAINSTEIN, ASSISTANT ATTORNEY 

GENERAL FOR NATIONAL SECURITY 

Mr. WAINSTEIN. Chairman Reyes, Ranking Member Hoekstra 

and members of the committee, good morning and thank you very 

much for this opportunity to testify before you again concerning 

FISA modernization. I am proud to be here to represent the Department of Justice, and I am happy to discuss this important 

issue with you. 

The Protect America Act is an important law that has allowed 

the Intelligence Community to close intelligence gaps caused by 

FISA’s outdated provisions, and it has already made a difference. 

It has already made the Nation safer. 

In my statement, I will briefly explain why I think Congress 

should make the Protect America Act permanent and also enact 

other important reforms to the FISA statute. 

Before I do that, I would like to thank this committee for having 

me in closed session last week; and in particular I would like to 

thank you, Chairman Reyes, for proposing that we send you a letter laying out our position on some of the concerns that you and 

other members of the committee had with certain parts of the Protect America Act, concerns that certain language might permit the 

government to conduct intelligence activities well beyond those 

Congress contemplated before they passed the statute. 

As the committee is aware, we sent that letter to you last Friday 

and we laid out why it is we don’t think those concerns were going 

to become a reality in practice. I appreciated the opportunity to engage in that dialogue with you and your colleagues, and I look forward to continuing it here today. 

I believe that this process will help to reassure Congress and the 

American people that the Act you passed in August is a measured 

and sound approach to a critically important issue facing our Nation. 

Let me turn briefly now to why I believe that Act should be made 

permanent. 

As I explained in my prior testimony, in 1978, Congress designed 

a judicial review process that applied primarily to surveillance activities within the United States, where privacy to interests are the 

most pronounced, and not overseas surveillance against foreign targets, where privacy to interests are minimal or nonexistent. They 

did this very much intentionally as they were working against a 

constitutional background articulated in case law and legislation 

that did not extend fourth amendment protections to foreigners 

overseas and that left the conduct of foreign intelligence surveillance against foreigners overseas within the ambit and authority of 

the executive branch. 

With this historical background in mind, Congress created a dichotomy in the statute, a dichotomy between domestic surveillance 

that is governed by FISA and that is therefore subject to FISA 

Court review and approval and overseas surveillance against foreign targets that is not. 


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Congress established this dichotomy by distinguishing between 

wire communications, which included most of the local and domestic traffic in 1978 and which were largely brought within the scope 

of the statute and radio communications which included most of 

the transoceanic traffic at the time and were largely left outside 

the scope of the statute. 

As a result of the revolution in telecommunications technology 

over the last 29 years, much of the international communications 

traffic is now conducted over fiber optic cables which qualify as 

wire communications under the statute. As a result, many of the 

surveillances directed at persons overseas which were not intended 

to fall within FISA became subject to FISA, requiring us to seek 

court authorization before initiating surveillance and effectively 

conferring quasi-constitutional protections on terrorist suspects 

overseas. This process impaired our surveillance efforts and diverted resources that were better spent protecting the privacy interests of Americans here in America. 

As the committee is aware, the administration submitted to Congress a comprehensive proposal in April that would remedy this 

problem and provide a number of other changes to the FISA statute. While Congress has yet to act on that complete package, your 

passage of the Protect America Act was a very important step in 

the right direction. It amended FISA to exclude from its scope 

those surveillances directed at persons outside the U.S., and this 

has allowed the Intelligence Community to close critical intelligence gaps that were caused by the outdated provisions of FISA, 

and it has already made our Nation safer. 

But the legislation is expected to expire in just a little over 4 

months, and we urge Congress to make the Act permanent and to 

enact the other important reforms contained in our comprehensive 

proposal. It is especially imperative that Congress provide liability 

protection to companies that allegedly assisted the Nation with 

surveillance activities in the wake of the September 11th attacks. 

I also wanted to assure the committee that we recognize that we 

must use the authority provided by Congress not only effectively 

but also responsibly, and I think our actions since Congress passed 

the Protect America Act demonstrate our full commitment to doing 

just that. 

As we explained in the letter we sent to the committee on September 5th, we have already established a strong regime of oversight for this authority, which includes regular internal agency audits as well as on-site reviews by a team of folks from the ODNI 

as well as the Department of Justice. This team has already completed its first two compliance reviews, and it will complete further 

audits at least once every 30 days during the renewal period of the 

statute to ensure complete and full compliance with the implementation procedures. 

In that same letter we sent to you, we also committed to providing Congress with comprehensive reports about our implementation of this authority, reporting that goes well beyond that that is 

required in the statute. We have offered to brief you and your 

staffs fully on the results of our compliance reviews. We will provide you copies of the written reports of those reviews, and we will 


ccoleman on PROD1PC77 with HEARING
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give you updated briefings every month on compliance matters and 

on implementation of this statute in general. 

We are confident that this regime of oversight and congressional 

reporting will establish a solid track record for our use of this authority, and it will demonstrate to you that you made absolutely 

the right decision when you passed the Protect America Act last 

month. 

The committee is wise to hold this hearing and to explore the 

various legislative options and their implications for American security and civil liberties. I am confident that when those options 

and implications are subject to objective scrutiny and honest debate, Congress and the American people will see both the wisdom 

and critical importance of modernizing the FISA statute on a permanent basis. 

Thank you again for allowing me to appear before you today, and 

I look forward to answering your questions. 

The CHAIRMAN. Thank you for your testimony, Mr. Wainstein. 

[The statement of Mr. Wainstein follows:] 


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The CHAIRMAN. Mr. Wainstein, I understand you had a hard 

time getting in the building, so we apologize for that. 

But the only thing that you missed, which is the most germane, 

is that we seek yours and the DNI’s help in getting us the documents that the ranking member and I have requested for a number 

of months and are critical for our committee to understand the 

thinking and the process that has gone into the surveillance program, terrorist surveillance program. So if you could help, we appreciate that very much. 

I don’t think anyone disputes that the threats are real. I think 

everybody knows and understands the threats to our country are 

real. The issue is whether we carefully balance our ability to remain safe as a Nation while at the same time protecting our individual rights as citizens under the Constitution. 

And the first question I have for you, Director McConnell, is you 

have told us the things that you need to improve your capabilities 

under FISA. Initially—and we are going back to the three things 

you identified previously—no individual warrants for targets 

abroad, a way to compel telecommunications companies to cooperate, and individual court orders from targeting an American. 

I believe that H.R. 3356 gave you all of those elements. When we 

discussed these issues with you last month, you told us then that 

the bill was acceptable and then only to find out later that it was 

rejected. 

So the first question I have is, do you still think that H.R. 3356 

doesn’t offer you the things that you need by way of these three 

requirements? And if it doesn’t, which ones does it not offer or 

which ones do we fall short on? 

Director MCCONNELL. Thank you, Mr. Chairman. I appreciate 

the question and an opportunity to explain in context, if I could. 

In the course of this dialogue, which intensified pretty briskly toward the end of July, we exchanged between us seven different 

drafts. While I am, one, not a lawyer, two, imposed on the lawyer 

team that I had—I had more than 20—that we wanted and needed 

these three main points that we are trying to achieve: no warrant 

for overseas, as you mentioned, getting help from the private sector, and requiring—and this is one of my major points, is I thought 

the 1978 law was right requiring us to get a warrant if it involved 

U.S. persons. That was sort of my philosophical underpinning. 

What happened is the law is very, very long and extremely complex, so if someone has an issue with a part of it and they want 

to change a phrase or attack a part of it in the language as entered, we don’t know the impact of that until we can sit down, examine it and so on. I have a team of 20 lawyers that are experts 

in every aspect of that. 

Let me give you a couple of examples: There are claims and worries about reverse targeting. What does that mean? The assertion 

is the government wants to know about a U.S. person in the country. Therefore, we would target someone overseas that might contact that person because we wouldn’t have to have a warrant to 

target the person overseas. So language was included to address reverse targeting. 


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Now what that does is introduce ambiguity and uncertainty. You 

don’t know, we don’t know how the Court would interpret such language once it gets there. You build a level of uncertainty. 

Also, reverse targeting is unlawful. So, my view, it wouldn’t be 

required to be inserted in the law, and I was very worried about 

the uncertainty. So it was just not required. 

That is one example, and there are a number of examples. 

Let me move to minimization, words in the draft to address minimization, and what do I mean by ‘‘minimization?’’ When we are 

conducting surveillance against a foreign target and a foreign target called into the United States, we have to make some decision 

with regard to that transaction. It has been true for 30 years. It 

is true on the criminal side. It is an artifact of doing this business. 

Minimization has been examined by the Court. It has been found 

to be reasonable by the Court. So in the case that a foreign terrorist was calling in the United States, if it were incidental and innocent, it would be purged from our database. If it were real, that 

might be the most important call that we intercepted. And so one 

would ask, well, what would you do with that? In that case, once 

the sleeper or someone in the country became a target of interest 

for probable cause, we would get a warrant. 

So, in my view, minimization for 30 years or almost 30 years has 

worked well; and if you attempt to adjust it, you don’t fully understand or appreciate the outcome. 

And there were a few other things. I will just give you some, not 

to take too much time. 

There was information about the definition of electronic surveillance. There are four different definitions, and what we had proposed is changing the definition so it excluded a foreigner in a foreign country. The draft you had still included definitions of electronic surveillance to include foreign persons. So you are back in 

a situation of not knowing how the Court would interpret it. 

So my problem was, one, limited time to review, get the draft, 

short turnaround, sit down with the lawyers; and we are coordinating between all of the experts and would say, look, we don’t 

know what this means. So I was put in a position where I could 

do nothing but say can’t support it because we haven’t had a 

chance to examine it. 

That is the sum and substance of what happened. 

The CHAIRMAN. Thank you, Director McConnell. 

I am a bit perplexed, because you are talking about a lot of 

things that were not included in 3356. The negotiations that we 

had with you covered those three points that you said you needed. 

Director MCCONNELL. Yes, sir. They did. 

The CHAIRMAN. And they expanded the legislation on the second 

go-round to include all foreign intelligence. If you remember that 

issue, which you made a case for making sure that, all foreign intelligence should be part of that process. 

But getting back to my original question, did 3356 give you the 

three things that you said you needed that we were negotiating? 

Director MCCONNELL. No, sir. The thing that I was worried 

about most was no warrant against a foreign target, foreign country. Because the wording in 3356, the definition left it uncertain. 

So you still would have the Court involved, and so our problem was 


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how would the Court interpret it. So it would put us back in the 

untenable situation. 

Let me go back to the end of July, first couple of days of August. 

The CHAIRMAN. But, Director McConnell, then why would you 

tell us at the time that we were having this discussion that it did 

everything that you wanted? 

Director MCCONNELL. I said if it addressed the three fundamental—remember, I am not the lawyer. I am the operator saying 

you have got to have these three things. 

When you examine the words, I wasn’t assured that I had the 

three things. 

And the reason I want to go back to the end of July and the first 

part of August, the Congress had a timetable that was driving the 

schedule. We exchanged seven drafts. Each turn—and, remember, 

I am doing this on the Senate side, also. Each turn we were given 

very limited time to actually examine the draft. And when I say 

20 lawyers, I don’t just imagine 20 lawyers sitting around a table. 

These are experts in aspects of this because it is so complex. 

So we would have to have time to say, if you changed a phrase, 

just the modification to electronic surveillance, what does that 

mean in the ultimate interpretation? And that was the problem 

that we faced. I could not, with certainty, believe that the very first 

thing I asked for, the fundamental premise going in, which was the 

reason FISA was created, no fourth amendment protection for foreigners that are suspected of activity that is inimicable to the interests of the United States. There is no intent to do that. But 3356 

could still get you there. 

Now it is an interpretation, but because we didn’t have time to 

sit down and have dialogue on a give and take, that is why we 

were—I said I can’t support it. I just—I don’t have confidence it 

would come out the way you intended it. 

The CHAIRMAN. I will leave that for a couple of other members 

to pursue further. 

I want to move on—in the interest of time—and ask you to 

switch topics and ask you, in your testimony before the House Judiciary Committee on Tuesday, you made the statement that no 

American had been targeted with electronic surveillance without a 

warrant. But if you recall in your interview in the El Paso Times 

last month, you said the number of Americans was a hundred or 

fewer. I believe that there has been a lot of confusion on this one 

issue. So I would like to try to clarify that discrepancy. 

Can you tell us, Mr. Director, since September the 11th, 2001, 

how many Americans have been targeted with electronic surveillance without a warrant? 

Director MCCONNELL. I can’t tell you the answer to that because 

I don’t know. I was asked the question earlier in the week in the 

committee, and then I clarified my answer when I thought maybe 

I left a misimpression. I can only talk about the period of time 

since I have served. The other part is hearsay, and I could probably 

go find it out, but I don’t know. 

What I was attempting to do and what I have learned by this 

process is that no good deed goes unpunished. What I was attempting to do at a summary level was to provide some factual informaVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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tion that people could deal with understanding the magnitude of 

this issue. 

There were many, many claims about the Intelligence Community conducting massive surveillance against the American public, 

a drift net over the entire country looking at every issue and transaction and doing data mining. 

What I was attempting to give perspective to is there are thousands of foreign intelligence targets and in the course of these 

thousands of operations we are conducting against foreign intelligence targets on occasion a foreign terrorist called in the United 

States. Now, when a foreign terrorist called in the United States 

and now there is reason to believe that there is something to do 

with terrorism, then we would be required to get a warrant. 

So in this specific instance starting in the January-February 

time frame, given the numbers we were dealing with where it 

would result in some surveillance of a U.S. person for which we got 

a warrant, that number was about a hundred or less. That was the 

point of what I was attempting to do at a summary level, provide 

the Congress, because you were being discussed in the press and 

a lot of criticism about what we did pass or what you all passed 

and the President signed, so all my intent was to do was to provide 

some context so people had a better way to understand this and appreciate it. 

So don’t know about 2001, wasn’t here. I could go try to find out. 

But, on my watch, none without a warrant and about a hundred 

where we got a warrant and we had reason to believe where we 

needed one. 

The CHAIRMAN. I think that is part of what led to the confusion 

on this issue, because you said zero to the Judiciary Committee. 

Director MCCONNELL. The question was without a warrant, zero 

without a warrant. So once—remember, a terrorist calls in, now we 

have reason, we get the warrant, so zero without a warrant, a hundred with a warrant. That was what I was trying to explain. 

The CHAIRMAN. Is there anybody accompanying you today that 

you can consult with so you can give us an idea of the number of 

Americans since September the 11th that have been targeted with 

electronic surveillance? 

Director MCCONNELL. Let me ask and find out. 

I can’t give you a number, sir. I can possibly provide you with 

one at a classified level. 

I used to serve as Director of NSA years ago. When you are collecting information, the task for in the collection process is processing out information. You could have data in a database that— 

you don’t know what is in the database. It hasn’t been examined. 

Remember, we are talking billions of things going on. 

So the way the process is designed is, at a point in time, the 

database, it just shorts ground, goes off, you don’t hold it anymore. 

The situation would be, given now that you have had data and 

you have some reason to examine the data, if there was incidental 

collection against a U.S. person in the data, has nothing to do with 

any foreign intelligence reason, now you know it you have to destroy it. Get it out of your database. If it had foreign intelligence 

value, terrorism, whatever, now you must report it. 


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Now, let us say it was a U.S. person inside the United States. 

Now that would stimulate the system to get a warrant. And that 

is how the process would work. 

Now, if you have foreign intelligence data, you publish it. Because it has foreign intelligence value and somebody wants the 

identity. There is a very structured process that you would have to 

go through to get approval to be aware of what that person’s identity might be. 

So it is something that is the workforce of thousands of people 

are trained in. It is something they review on a yearly basis. It is 

something that is very structured to prevent any potential abuse 

or any claims of spying on Americans. 

The CHAIRMAN. But is it your position that you can go back and 

give us the information, again, since 9/11? 

Director MCCONNELL. What I am highlighting for you is it will 

be probably a range. One I am pretty sure—— 

The CHAIRMAN. The best that you can do under those circumstances. 

Director MCCONNELL. It would probably be a classified answer. 

The CHAIRMAN. We appreciate that. 

The last thing, and I will turn it over to the ranking member for 

his questions, is when will you furnish us the documents that we 

have requested? 

Director MCCONNELL. Sir, my understanding is there is a negotiation going on between the Judiciary Committees and the White 

House with regard to that documentation. I am generally aware, I 

have made my recommendations known, and so that is a process 

that is ongoing now. I don’t know specifically where it is in the decision cycle. Maybe Mr. Wainstein, he might have some additional 

insight. 

Mr. WAINSTEIN. No, sir. I am afraid I actually don’t have any 

sort of updating information as to where those negotiations are. I 

know they are ongoing between various parts of the administration 

and various committees up on the Hill. But I really couldn’t tell 

you what the status is at this point. 

The CHAIRMAN. Any assistance both of you gentlemen can give 

us we would appreciate it. 

With that, I will recognize the ranking member for his questions. 

Mr. HOEKSTRA. Thank you, Mr. Chairman. 

Admiral McConnell, can you explain how the FISA structure has 

accounted for the possibility that the communications of Americans 

may be intercepted when targeting foreign persons? I mean, the 

law has been around since 1978. This is not a new problem, correct? 

Director MCCONNELL. That is correct. 

Mr. HOEKSTRA. So how have the folks at NSA dealt with this 

since 1978? How would this have been managed under the period 

of time that—in the Clinton administration when you were running 

NSA? What are the processes and the procedures that go through 

this talk about collection of Americans? 

Director MCCONNELL. First of all, it is unlawful to collect against 

U.S. persons without a warrant. So that is where you start. 

Second—— 


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Mr. HOEKSTRA. Since 1978, if you are targeting and collecting 

against an American, the people at NSA have gone through the rigorous training; and that has always been subject to congressional 

oversight, that you have got to get a warrant? 

Director MCCONNELL. That is correct. And, sir, I would even submit that I think we could have been better in the 9/11 situation 

had we perhaps thought about it differently. We put so much emphasis, the Community was trained and drilled and rehearsed and 

had such a cultural affinity with what we just described that any 

time it had anything to do with United States, it was—we just 

didn’t do it. 

So if Osama bin Laden himself was being tracked in Pakistan or 

Turkey or Europe or wherever, the minute he comes into the 

United States, he is now a U.S. person, and it is a different situation. 

So the process—and when you are—first of all, the Community 

is tasked and responsible for only doing one thing, collecting foreign intelligence information. So when you are doing your foreign 

intelligence collection mission, there are circumstances whereby a 

foreigner could call into the United States. And we refer to that as 

incidental. When an incidental situation like that develops, the 

rules are it must be minimized. Once recognized and minimized, it 

is incidental. It must be purged from the database. That is what 

we have done for almost 30 years. 

If it turns out that it has intelligence value for whatever purpose—terrorism, crime, whatever—you are required to report it. 

Even in the report you are required to protect the identity of the 

U.S. person. 

So that is the way the processes work. It is called minimization. 

It is something that has been examined by the Court, endorsed by 

the Court, and it actually originated on the criminal side where 

criminal investigators would have a warrant to, for example, conduct surveillance against a specific person in the Mafia. That person may have incidental phone calls and nothing to do with the 

crime or breaking the law. That was called a minimization process. 

That is where it came from. That is how it has been used in the 

community. 

Mr. HOEKSTRA. Those protections are still in place? 

Director MCCONNELL. Yes, sir they are. 

Mr. HOEKSTRA. You stated in the Judiciary Committee that you 

were required earlier this year to—or that you were required to get 

a FISA order to conduct surveillance on Iraqi insurgents who had 

captured Americans. Can you discuss that case any further? 

Director MCCONNELL. I have to be a little careful because of 

sources and methods issues. 

But the situation was, as you know, because global communications move on wire, you can have a situation where information 

would pass on a wire through this country. And so for us to specifically target individuals that were involved in that kidnap, we had 

to go through a court order process. 

Now when we talked about this before, people frequently say, 

well, wait a minute. Why don’t you just do emergency FISA? Well, 

that is the point. We are extending fourth amendment rights to a 

terrorist foreigner, in a foreign country who has captured U.S. solVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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diers, and we are now going through a process to produce probable 

cause that we would have authority to go after these terrorists. 

So then people will say, why don’t you just—you have got emergency authorization. Well, emergency authorization doesn’t mean 

you don’t go through the process, which is probable cause. So some 

analyst has just got to do it, and some official has got to sign it 

out, and it has got to come to either me or some other officials, and 

it goes to the Attorney General and then to the FISA Court. 

So even though you could go faster, some would assert or just 

automate the process and you go the speed of light. The human 

brain still has to engage, and you still have to certify the accuracy. 

So the reason I raise the case is it is my fundamental belief that 

that foreigner in a foreign country, known terrorist, has no right 

to protection of the Fourth Amendment. And the process slowed us 

down. That was what I was complaining about. 

Mr. HOEKSTRA. And the situation was one where we ought to be 

clear about, these were Americans that were captured? 

Director MCCONNELL. Yes, sir. 

Mr. HOEKSTRA. And the way that the process required you, required you to go through a court process to get a FISA order to be 

able to listen. 

Director MCCONNELL. And the reason, sir, is two things: the 

mode of communications that was used and where it was intercepted. That was the only issue. 

Now let us go back to the terrorists in Baghdad. If they had had 

a push-to-talk phone or if they had a cell phone talking to a tower 

or if they used signal flags or if they had talked to a cell phone 

to a satellite, any of that, there is no warrant because it is in the 

air and it is in a foreign country. 

But because they used a mode of communication that involved 

wire and the wire passed the United States, that was where the 

technology did not keep pace—where the law did not keep pace 

with technology. It was because of how and where that put us in 

that situation. They were using a device or devices that caused us 

to stop and get a warrant, so it slowed us down. 

Mr. HOEKSTRA. Thank you. 

With that, Mr. Chairman, I will yield back the balance of my 

time. 

The CHAIRMAN. I thank the ranking member. 

Just to be clear on this particular case that you mentioned, the 

emergency provisions—and we have had testimony to this effect— 

kick in so you can start monitoring immediately and then you 

evaluate whether or not within those 72 hours you are going to 

need to take it to the FISA Court? 

Director MCCONNELL. I didn’t make myself clear. I am sorry. I 

am failing here. 

Here is my point: Emergency provisions still have to meet a 

probable cause standard. So I can have emergency provisions. I 

still have to go through the process of probable cause, get people 

to certify and take it to a court. My argument is that a foreigner 

in a foreign country shouldn’t be worried about emergency process 

or probable cause. If it is a foreigner in a foreign country, that is 

our mission. We should be doing that without involving a court. 

That is the point I am trying to make. 


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The CHAIRMAN. I just wanted to make sure that we were clear 

so that the American people don’t misunderstand that everything 

wasn’t done as quickly as possible. 

Director MCCONNELL. Could we have gone faster? No question. 

I am sure we could have gone faster on the edges. I want to make 

sure the American people clearly understand this. Going fast does 

not take away the fact it still has to meet a court standard. 

So the issue is we are meeting a probable cause standard that 

still has to be reviewed by a court, and my argument is that is the 

wrong way to do this, but we shouldn’t even be going down that 

path. 

Mr. WAINSTEIN. May I piggyback on that for a quick second? 

I think that is a very important point. Because people hear that 

we have this emergency authority and assume that, okay, we can 

sort of go up on it without any process at all. 

Keep in mind that under FISA, under the emergency provisions 

of FISA, the Attorney General of the United States, and now with 

recent amendments to the statute delegated down to me, we have 

to find that there is probable cause that the person we want to surveil overseas is an agent of a foreign power. And if we don’t find 

that, we are not allowed under the statute to go ahead and authorize emergency authority and within 72 hours we have to make that 

showing to the satisfaction of the FISA Court. 

So it is a very important responsibility. It is nothing we take 

lightly. 

As a result, analysts, whoever else is involved in the process, 

they have to pull together the information to establish that, to 

make that showing, and that is not—that can take some time in 

order to get that evidence together. 

And keep in mind that, were it not for that, if these surveillances 

overseas did not fall within FISA, we would not have to make a 

showing that the person that we want to surveil is connected to 

any particular foreign power which is—you know, that is our foreign intelligence. I mean, our foreign signal intelligence surveillances don’t require that, and they shouldn’t for surveillances outside the United States, they shouldn’t fall within FISA. 

It is very important that people should understand the fact that 

we have emergency authority doesn’t mean we can automatically 

snap our fingers. 

Director MCCONNELL. That is why my number one point from 

the day I came back into active duty and looked at it as my number one point was, since I was on active duty before, I never had 

to have a warrant for a foreign target in a foreign country and now 

all of a sudden I had to. That was the main thing I was trying to 

get people to recognize and deal with. 

The CHAIRMAN. Ms. Eshoo. 

Ms. ESHOO. Thank you for holding this public hearing, Mr. 

Chairman. I think it is so important, because the American people 

are really worried about this. All one has to do is look at the editorials that were carried in newspapers in different parts of the 

country and the stated concerns about the bill that was passed. 

Mr. Director, I want to ask you about a specific interview that 

was carried—the chairman mentioned it—in the El Paso Times 


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that ran on August 27th. You revealed a great deal of information 

that had previously been considered classified. 

I remember the discussion and the number being given to committee members and I don’t know whether the word ‘‘warning’’ was 

there, but it was certainly reinforced that this was a highly classified number. 

So, for example, you discussed the mechanics of the FISA applications and court review, including the recent changes in FISA 

case law that necessitated warrants for wire communications traversing our country. You also confirmed that private sector companies assisted in conducting the President’s warrantless surveillance 

program. 

Now my question on this is, did you discuss with the White 

House your intent to declassify these facts in advance of the interview? 

Director MCCONNELL. No, I did not. 

Ms. Eshoo. If not, why not? 

Director MCCONNELL. The control of classified information is 

subject to Presidential authority, and the President delegates that 

authority to me, and it becomes a judgment call. 

Ms. ESHOO. So simply by stating in that interview with the El 

Paso Times the information just automatically became declassified 

because you stated it publicly? 

Director MCCONNELL. It becomes a judgment call. I will repeat 

some of the remarks I made earlier with regard to why I chose to 

do that. There were many claims and counterclaims. 

You opened your comments, saying, ‘‘Americans are worried.’’ 

Some were asserting in those same editorials that my community 

was conducting a drift net of surveillance. 

Ms. ESHOO. I don’t want to go back to what you have said before. 

I appreciate your wanting to say more that was stated earlier 

today, but I only have a limited amount of time. 

I was really stunned when I read that, I have to tell you. I think 

others were as well. 

Does the same thing occur if we as members of the committee 

state a classified number and we decide it should just be declassified? 

Director MCCONNELL. You would have to request authority to do 

that. I have that authority, and I made a judgment. It was in my 

judgment call. 

Ms. ESHOO. Were you aware, by reviewing the involvment of private sector companies, that it undermined the Justice Department’s case, their defense against the lawsuit about the President’s 

program? 

Director MCCONNELL. I am sorry. Repeat the question. 

Ms. ESHOO. I mean, there was a lot of speculation. You confirmed 

that private sector telecommunications companies were assisting in 

the President’s program. I am just asking you if you were aware 

if that undermined the Justice Department’s defense against the 

lawsuit. 

Director MCCONNELL. The words I chose were private sector. If 

you go back and closely examine all the articles that covered my 

interview, they would quote me up to a point, and then it would 


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stop the quotes and go on to name specific companies or telecommunications or whatever. 

Ms. ESHOO. I think we may view it differently, which is legitimate. 

Director MCCONNELL. I can refer you back to the article, which 

was printed verbatim. 

Ms. ESHOO. After the Act passed, you claimed that because of the 

congressional and public debate over changes in FISA, ‘‘Some 

Americans are going to die.’’ 

Director MCCONNELL. Yes, ma’am. 

Ms. ESHOO. Do you really believe that because we have a public 

debate in the Congress of the United States about surveillance, 

about the Foreign Intelligence Surveillance Act, that Americans are 

going to die? 

Director MCCONNELL. Yes, ma’am. 

Ms. ESHOO. That is a heavy statement. 

Director MCCONNELL. Intelligence business is conducted in secret 

for a reason. 

Ms. ESHOO. Did you ever advise the Congress not to debate this 

in public and that you believed Americans were going to die? 

Director MCCONNELL. I have been very clear about this all along. 

This is very important for us to get this right so we can do our mission to prevent Americans from dying. 

Ms. ESHOO. That is not what you said. 

Director MCCONNELL. If you would allow me to finish, I will tell 

you what I intended to say, what I did say. 

If you compromise sources and methods; and what this dialogue 

and debate has allowed those who wish us harm to do is to understand significantly more about how we were targeting their communication. 

Ms. ESHOO. Mr. Director, with all due respect, I think that you 

put out classified information; and simply by stating because you 

are director and say that you have the ability to do that and that 

it just became declassified, I think that that was very important information that shouldn’t have gone out. That is only my judgment. 

Now, you are standing by your previous quote that when we debate these that some Americans are going to die. I think that is 

a stretch. I think because of these things it has done damage to 

what you bring forward. It puts a dent in the credibility. 

And I think that there are some Members of Congress that are 

being affected by this. That is why I raise it. 

Chairman REYES. Thank you, Ms. Eshoo. 

Ms. Wilson. 

Mrs. WILSON. Thank you, Mr. Chairman. 

Mr. Wainstein, would the Protect America Act affect the e-mail 

of a soldier communicating with his family back home? 

Mr. WAINSTEIN. Under certain circumstances, it would, yes. The 

Protect America Act allows us to target surveillance on persons 

overseas. 

Keep in mind that one of the things that we have to do is, we 

have to satisfy the various elements, and one of them is, it has to 

have a significance for intelligence purposes. We can’t target anybody for kicks. The DNI and AG have to certify that there is a foreign intelligence purpose for that surveillance. 


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Keep in mind also, if this is an American soldier that is a United 

States person, there is what is called the 2.5 process in place, 2.5 

under Executive Order 12333, which says that before we can target 

an American overseas for surveillance, the Attorney General has to 

find probable cause. 

Mrs. WILSON. The Attorney General would have to certify that 

there is probable cause to believe that that soldier overseas is an 

agent of a foreign power. Is that correct? 

Mr. WAINSTEIN. The Attorney General would have to find that, 

yes. 

Mrs. WILSON. Thank you. 

With respect to reverse targeting, Mr. Wainstein, would the Protect America Act allow a circumstance where you really want to listen to a doctor in America, so you wiretap his relatives overseas? 

Would that be against the law? 

Mr. WAINSTEIN. It would be. 

Mrs. WILSON. Admiral, you testified before the Judiciary Committee, and it has already been discussed a little bit here. You said, 

‘‘And let me give you an example: An American soldier is captured 

in Iraq by insurgents and we found ourselves in a position where 

we had to get a warrant to target the communications of the insurgents.’’ 

In that circumstance, did you try to get an emergency FISA? 

Director MCCONNELL. Yes, ma’am. 

Mrs. WILSON. How long did it take from the time the United 

States knew it had a target until you were able to get the Attorney 

General to sign off? 

Director MCCONNELL. Ma’am, I will have to get you an exact answer. If my memory serves, somewhere in the area of 12 hours or 

so. 

Mrs. WILSON. So it took a minimum of about 12 hours to get the 

probable cause, get it all the way through to get the signal to turn 

on the wiretap? 

Director MCCONNELL. Yes, ma’am. 

The point I was trying to highlight is the fact of probable cause, 

and the standard has to be a probable cause standard that a court 

would approve. 

Mrs. WILSON. If that terrorist in Baghdad was using a push-totalk phone, you could have gone up immediately? 

Director MCCONNELL. That is correct. The reason was the mode 

of communication; that is what drove us to a warrant requirement. 

Mrs. WILSON. So we had U.S. soldiers who were captured in Iraq 

by insurgents, and for 12 hours immediately following their attack, 

you weren’t able to listen to their communications; is that correct? 

Director MCCONNELL. That is correct. 

Mrs. WILSON. If it was your kid, is that good enough? 

Director MCCONNELL. The reason I try to be as straightforward 

and open on this subject as I have, is because it is so important 

that we get this right. You may even accuse me of declassifying information, a warmonger, a fearmonger or whatever, but we have 

got to get this right because sometimes those timelines are so tight, 

it could cost us American lives. 


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We have to not extend fourth amendment protections to a foreign 

terrorist, particularly in something like this where they are holding 

a U.S. hostage. 

Mrs. WILSON. Mr. Wainstein, you are a Justice guy; you are familiar with things like the Amber Alerts and the importance of 

those first hours and gathering information to protect American 

lives, often children. 

Mr. WAINSTEIN. The point is, we need to be agile, we need to be 

able to jump and respond to circumstances immediately. 

This is a dangerous game. It is in this situation and some of the 

situations that happen every day, anything that slows down that 

process makes it more cumbersome, makes it more likely terrorists 

will win. 

Mrs. WILSON. Thank you. 

The threat persists, and you both have testified to that fact and 

that our laws did not, before the Protect America Act, work fast 

enough to protect this country against people who were trying to 

create mass casualties against Americans. 

I thank both for your work. 

I yield back. 

Chairman REYES. Thank you, Ms. Wilson. 

I think that is an abhorrent failure of leadership on our part, and 

we shouldn’t be worried about whether or not we are legally compliant when American lives are at stake, especially in the combat 

situation. 

Mrs. WILSON. Mr. Chairman, may I ask a question? 

Chairman REYES. You may. 

Mrs. WILSON. If they had not followed the law in that circumstance, if they had said, forget the FISA, don’t worry about the 

Attorney General, just go up on that number and we will worry 

about explaining later, would that maybe break the law? 

Chairman REYES. The testimony that we had in committee by 

Mr. Jim Baker the other day is that all it takes is a phone call explaining that American lives are at stake in a combat zone. 

I think it gets back to the bureaucracy and a failure, again, to 

recognize that American lives are at stake. I think it is a commonsense thing to work with. 

Director MCCONNELL. Sir, the point—maybe not being captured—here is, even in an emergency you still have to get approval. 

Someone has to say ‘‘yes.’’ It’s according to the law. 

In this case, it is the Attorney General, so the process to get the 

data and put it in a format and move it through the system and 

get it approved. 

Chairman REYES. There were a number of other circumstances 

in this particular case, but again I think it is imperative that we 

understand that there is that capability of making that phone call. 

I would be surprised if they wouldn’t say, let’s go up on it, let’s 

make sure we are building a case, because all the elements were 

there, that American soldiers’ lives were in danger. 

With that, Mr. Holt, you are recognized for 5 minutes. 

Mr. THOMPSON. Mr. Chairman, before you go to Mr. Holt, would 

you yield for a question to the Chair on the issue that we are discussing regarding these soldiers that were captured? Could we get 


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some clarification on why it took 12 hours? Was it a bureaucratic 

holdup, was it a legal holdup, or was it a technology holdup? 

Given the testimony we heard from Mr. Baker yesterday, it 

seems ridiculous that it would take 12 hours, if we have identified 

a target, to be able to ascertain the information we need to protect 

the lives or to find the soldiers that had been captured. I think 

there is a lot that is not being explained here. 

Chairman REYES. We do have, and the committee does have, the 

information, including the timeline and other circumstances that 

were involved, including that the Attorney General was out of town 

and issues like that. 

Again, it is available for any member of the committee. We do 

have it. 

Mr. WAINSTEIN. I don’t want the impression to be left that the 

Attorney General has the only determination when we get emergency authority. I am not talking about this particular case we discussed in closed session. But it must be understood that where we 

had emergency authority, the law requires that probable cause be 

shown, probable cause that the person we want to target is an 

agent of a foreign power. 

You don’t have to go any further than the discussion of the 9/11 

Commission recommendations about the difficulties in showing 

that. It took us so long to get the authority to get the search warrant, to get authorization to search the laptop. It is not an easy 

showing, and we have to make that showing. 

I can tell you once we make it, it is almost instantaneous; it 

doesn’t matter where the Attorney General is, the call is made and 

he is responsive. If we don’t follow that procedure, we are violating 

the law, and there are felony penalties. 

Chairman REYES. In this particular case, people were kidnapped 

in Iraq, people were communicating about that case. Would that be 

foreign and—from a common-sense perspective—would be reasonable for a person to assume that probable cause was there? 

Mr. WAINSTEIN. Well, I would have to divorce it from the facts 

here, because it gets into a very sensitive area we can’t discuss. 

Chairman REYES. I don’t want to leave the misperception that 

people were standing around because of FISA, unable to make a 

determination. There is a common-sense aspect to every issue that 

we deal with, including FISA. 

Mr. HOEKSTRA. The common-sense approach to that is saying 

that in FISA probable cause does not extend to an agent of a foreign power in a foreign country. 

Chairman REYES. That is exactly right. 

Mr. HOEKSTRA. But in this case, the way the communications 

were reported, they got fourth amendment protections. 

Chairman REYES. That is where I disagree with you because, 

again, American troops were kidnapped in Iraq, communication 

was taking place in Iraq. The last time I checked, Iraq is foreign. 

You could assume that it is foreign-to-foreign in that case. I would 

find it astonishing if any judge said it wasn’t ripe for emergency 

authorization. 

Director MCCONNELL. The FISA court said we would not be in 

compliance. That was the issue. I briefed 260 Members of Congress, and I just failed to make the point. 


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The point is, someone in Iraq communicating because it passed 

on a wire through this Nation, this country physically, the law said 

we had to have a warrant. That is the point. 

So what we are arguing is, we shouldn’t have a warrant for a foreign-to-foreign country, regardless of where we intercept it. 

Chairman REYES. I don’t think we have a disagreement on that. 

Director MCCONNELL. We can’t violate the law. We have to abide 

by the law. That was the whole point of the reason I brought it up. 

We are doing a consideration of probable cause for somebody in 

a foreign country because of where we intercepted. 

Chairman REYES. Which was written into 3356, at your request, 

and which I will tell you we definitely need to make that—— 

Director MCCONNELL. Everybody I have talked to is in agreement with the first principle I keep putting on the table. The issue 

we discussed is when you add the other things. In some cases, it 

puts us back in the same situation. That was the problem. We 

didn’t have a chance to sit down across the table and say, what is 

your intent here and what is the probable outcome and how do we 

pick a better word or different word. We got caught in a time 

crunch. 

Chairman REYES. We are not in a time crunch now. We are going 

to be able to work with you and hope we cooperate for the good of 

our national security. 

Mr. Holt, you are recognized for 5 minutes. 

Mr. HOLT. Thank you, Mr. Chairman. Thank you for holding 

these public hearings. 

Thank you both, gentlemen, for coming today. 

I understand, Mr. Director, that you believe strongly that the 

legislation needed to be changed so that there would be no individualized judicial warrants required for overseas targets. Let me go 

through a few other things, though. 

Did you need and do you need the ability to conduct warrantless 

searches of Americans inside the United States? 

Director MCCONNELL. No. 

Mr. HOLT. Do you need or did you need the ability to conduct 

warrantless searches of domestic mail? 

Director MCCONNELL. No. 

Mr. HOLT. Do you need to be able to conduct searches without 

judicial warrants of U.S. persons about foreign intelligence? 

Director MCCONNELL. Ask the question again. 

Mr. HOLT. Do you need to be able to conduct searches without 

judicial warrants on persons whose communications might be about 

foreign intelligence? 

Director MCCONNELL. Depends on where and who the person is. 

If it’s a U.S. person. 

Mr. HOLT. A U.S. person. 

Director MCCONNELL. In this country, it requires a warrant. 

Mr. HOLT. And not in this country? 

Director MCCONNELL. The U.S. person is protected under U.S. 

laws. 

There is a situation which is covered under Executive Order 

12333. You have to have an authorization, but in the current interpretation, that is not a warrant. 


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Mr. HOLT. Do you need to be able to conduct warrantless 

searches of library records, medical records, business records, 

under FISA? 

Director MCCONNELL. Not to my knowledge. 

Mr. HOLT. Do you need to be able to conduct bulk collection of 

all communications originating overseas? 

Director MCCONNELL. Bulk collection of all communications originating overseas. That would certainly be desirable if it was physically possible to do, since I am in the foreign intelligence business. 

Mr. HOLT. Do you need to be able to collect—or conduct bulk 

communications of someone overseas to an American? 

Director MCCONNELL. No. 

Mr. HOLT. Do you need to be able to conduct bulk collection of 

call detail records, metadata for domestic-to-domestic phone calls 

by Americans? 

Director MCCONNELL. Metadata, we think of it as not content but 

a process for how you would find something you might be looking 

for. Think of it as a roadmap. 

Mr. HOLT. With the exception of that one matter. 

Director MCCONNELL. Let me answer your question. 

Should I do that without a court order? No. If I do it, I should 

have a court order. 

Mr. HOLT. So would you object to statute language that explicitly 

prohibits the government from engaging in these things? 

Director MCCONNELL. The way we have discussed it in every 

case you have described, we are prohibited without a court order. 

Mr. HOLT. So you would not object, with a clarification of that 

in the statute? 

Director MCCONNELL. Let me go back to my dialogue with the 

chairman. 

As long as we examine the language with a team of experts to 

understand the consequences and the unintended consequences, I 

wouldn’t object. But what I couldn’t do is agree to it without being 

allowed to read the text or have an expert team examine it, which 

is the situation. 

Mr. HOLT. Now, before the recess and during negotiation over 

FISA modifications, you issued a statement saying that you strongly opposed the bill that was before Congress, and insinuated it 

would limit your ability to warn Americans of impending attacks. 

But later you said you hadn’t read it. 

Last week, before the Senate Homeland Security and Government Affairs Committee, you said that under the new law you 

would lose, ‘‘50 percent’’ without the new law, you would lose 50 

percent of our ability to track and understand and know about 

these terrorists. 

This week, before the House Judiciary Committee, you said, If 

we let the new law expire, we would, ‘‘lose about two-thirds of our 

capability, and we would be losing steadily over time.’’ 

A week or so ago you said that the new FISA law facilitated the 

recent disruption of the German terrorist plot, despite the fact this 

began many months before. You did—after the chairman and I and 

others made public statements, you issued a public statement. 

Let me ask if you understand why some people have raised questions about the credibility of your arguments. Do you understand 


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that there are some doubts about your ability to act as an unbiased 

source of information concerning this proposal? 

Director MCCONNELL. Many of the quotes you have taken have 

context to them. There were answers to questions that were specifically framed. 

The question I received in the Senate hearing that you make reference to, the question that I understood was, Would the FISA 

process make any difference; and my answer was, Yes, it did. 

That was a key source of information. Once it became politically 

surfaced, as well as the new law and the old law, the best thing 

for me to do was just to say, I retract the statement, I will clarify 

it in another hearing or in closed session. 

Did FISA make a difference and save American lives in Germany? Yes. It saved American lives. 

Did it matter if it was passed on the 5th of August or earlier? 

That wasn’t my point. It was the FISA process. 

My point is, it is more than 50 percent of what we know about 

terrorists that are plotting to kill people in this country. And the 

way you frame your question was out of context for what I was trying to respond to in the hearing; and I was trying to be honest and 

straightforward about it. 

Mr. HOLT. Later I will read the full transcript to you, but my 

time has expired. 

Chairman REYES. Thank you, Mr. Holt. 

Mr. Issa. 

Mr. ISSA. Thank you, Mr. Chairman. I have an article here. I 

took the liberty of taking a quick glance it. I will ask that it be included in the record at this point. 

Chairman REYES. Without objection. 

[Article not found] 

Mr. ISSA. Thank you, Mr. Chairman. 

It is straightforward. It says you can do this. Unfortunately, as 

I read it—and I would like your read on it, and obviously the Attorney General’s office too—what we did when we structured this legislation is, we made it simple, said you could do it; but in the same 

105 what we went on to do was endlessly tell you what you had 

to do after that, within that 72 hours. 

If I understand correctly, notwithstanding the chairman’s statement that you wouldn’t wait 12 hours, you wouldn’t take 12 hours 

if it was your child—and you probably wouldn’t; you would be willing to go to jail, you would be willing to violate the law, you would 

be willing to ignore that to save your own child’s life. 

That is not the standard we hold people to in law enforcement. 

We hold them to the standard that they are not—we take them off 

the cases if it is their child. 

As I read the statute, it is pretty clear that you have to have 

ready a good-faith belief that you are going to be able, after 72 

hours, to present to the judge this another 21⁄2 pages of ‘‘what ifs’’ 

and ‘‘notwithstanding’’ and so on. 

Is that correct, Admiral? 

Director MCCONNELL. Yes, sir. That is correct. That is the point. 

Mr. ISSA. So, in a nutshell, we have talked past each other for 

the last 45 minutes. 


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It’s pretty clear that if Congress wanted you to have what General Petraeus has—which is, they take our troops, he sends a 

gunship out, he kills the bad guys, and gets our people back—if 

they wanted you to have that, they would give you 72 hours to take 

gunships out, so to speak, without saying, And, oh, by the way, 

here is what has to be in your after-action for this to have been 

lawful. 

Is that right? 

Director MCCONNELL. Yes, sir. 

Mr. ISSA. I remember this. And I think General Petraeus has 

been very good. Everybody who has been over there—as the ranking member has, I have, the chairman—General Petraeus explains 

that to us; that he can shoot somebody while they are calling the 

United States, he just can’t listen to them while they’re calling the 

United States. 

I only put this into record, the Marine online statement, because 

I think it is important. Notwithstanding the chairman’s ‘‘We are 

not going to spy on our troops,’’ I checked and confirmed, and you 

have in front of you—which I also ask be put in the record 

anecdotally—that every U.S. Department of Defense site both here 

and in theater has a warning that says you may be monitored. As 

a matter of fact, it specifically makes it clear that you will be potentially monitored. 

For Mr. Wainstein, I guess my question is, your understanding 

of how the Uniform Code of Military Justice works when somebody 

is given a warning like this. When somebody is in theater, is it fair 

to say their fourth amendment is not, in fact—that, in fact, if they 

do something inappropriate, including going to a porno site, that 

that evidence can be used, and they have no expectation of privacy. 

Is that right? 

Mr. WAINSTEIN. Sir, I don’t actually have the sheet you passed 

to the Admiral. 

Fourth amendment protections do follow Americans when they 

go overseas, but obviously if you consent to—you see a banner that 

says, ‘‘By using this, you consent to us looking at it and possibly 

using it against you if you do anything wrong,’’ if that is what the 

banner says, then, yes, they have waived that. 

Mr. ISSA. I only say that because we are not spying on our 

troops, our troops are in fact consenting, that for their safety that 

that happen. 

Mr. WAINSTEIN. If we do surveil a soldier overseas who is an 

American, we have to establish to the Attorney General that that 

person is an agent of a foreign power. 

Mr. ISSA. Of course, if they become a target. 

I might, for the record, remind us all that it was insiders—not 

U.S. troops, but insiders who blew up our mess hall in Iraq; and 

in fact, they had access or at least the presence of computers and 

so on. 

I think today what we are hearing is, we are hearing the majority say on a bill that they wrote, we didn’t cosponsor—they voted 

for and they sent to the President and the President signed—they 

are saying, Please don’t let us hurt ourselves again, and the American people. 

I would hope they don’t really mean it. 


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My understanding of the Rocket Docket in Virginia, it is about 

18 months. I just want to have that in the record because I think 

12 hours, when you know you are going to a court, the question of 

speed is highly questionable. 

Director, I do have one question for you that is pertinent for both 

sides of the aisle up here, and that is, all of us who not only receive 

classified briefings, as we do, but who constantly look to the unclassified Internet information related to areas of study, could not miss 

that the New York Times and everybody else on and off the Internet has been reporting—with some inconsistency, but reporting— 

Israel’s attack on Syrian sites, and yet members of this committee, 

having inquired, have essentially been told we won’t be briefed. 

As much as I want to support you, and I have supported your 

need to get what you need, I would hope today in an open hearing 

that you would realize that many of us are frustrated that we do 

get selective information, and that when you declassified something 

in El Paso, I respect the fact you did so for what you thought were 

the right reasons. 

But I would hope that we could change the policy, starting today, 

about selectively handing us little bits of information to tie us up 

while, in fact, critical information that is already leaking around in 

an inconsistent way can be brought to the committee that has to 

make decisions on whether or not our plans and preparations and 

our eyes on the ground are appropriate. 

So if you can comment on that specifically, maintaining an unclassified posture—and I am not talking about the specific incident, 

but I am talking about the question of how you select answering 

our questions, including the chairman and ranking member’s requests, that seem to be forever waiting to find out and neglected 

as to whether or not this committee receives it. 

Director MCCONNELL. First of all, a very important question. Let 

me just give you my personal view of the oversight process. Sunshine is a good thing, not a bad thing. So oversight and sharing of 

information is appropriate and healthy. That is my personal belief 

in how to engage. 

In this specific instance you are making reference to, I would be 

happy to talk to you about that. There is information at a classified 

level that wouldn’t be appropriate for me to discuss now. There are 

varying levels of what you can do and not do by agreement between 

the executive branch and the Congress, so I have to be respectful 

of that process. 

But given the opportunity to engage in dialogue and share information, I am going to default to the sunshine position of making 

it available. 

Mr. ISSA. Okay. 

Mr. Chairman, I appreciate your indulgence on the time. 

Chairman REYES. Mr. Tierney, I think we have enough time to 

have you go. 

Mr. TIERNEY. Mr. Director, I don’t think there has been any disagreement from the beginning as to whether or not a warrant is 

needed for foreign communications between a person in a foreign 

country and another person in a foreign country not a U.S. citizen. 

There is no warrant required. 


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Many of us have argued consistently that FISA never required 

a warrant in those situations. 

I know there has been some disagreement on that in the interpretation. 

I am just going to read the section of the bill that had been filed 

by the Democrats last session that deals with your issue of whether 

or not it will clarify that matter. I don’t want you to respond now, 

but I would like for you to submit to us after the hearing your complete reason why you thought the following language wasn’t fair 

enough to satisfy your needs to make it certain that no foreign-toforeign communications required a warrant. 

Section 105(a) reads: ‘‘Notwithstanding any other provisions of 

this act, a court order is not required for the acquisition of the contents of any communication between persons that are not located 

within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication 

passes through the United States or the surveillance device is located within the United States.’’ 

So if you would be kind enough to submit to us why you think 

that is not clear with respect to that issue, I would appreciate it. 

Secondly, I think, Mr. Director, you would agree with me—and 

I think you stated very clearly—Americans and others inside the 

United States do enjoy constitutional protection or a right against 

unreasonable search and seizure or interception of their conversations; is that right? 

Director MCCONNELL. Right. 

Mr. TIERNEY. And it would be unlawful to intercept that communication without a warrant; is that correct? 

Then I assume you agree with me that the original program that 

the President was operating was, in fact, unlawful. 

Director MCCONNELL. That is a debate between the interpretation of Article II and Article I. Some would argue it is lawful, some 

would say ‘‘no.’’ I can’t resolve a constitutional debate. I am talking 

about the framework of FISA. 

Mr. TIERNEY. Moving forward, we agree, if the government targets an overseas person, a certain percentage of foreign intelligence 

targets overseas will communicate only with other foreigners overseas. 

Director MCCONNELL. I think that is fair to say. 

Mr. TIERNEY. Some of them are going to communicate with individuals in the United States, and some of those communications 

are going to pass through the United States; and it may not, at 

first, be easy to determine if they are being routed to U.S. persons 

or to foreigners overseas. 

I think that is the crux of the government’s dilemma here; is that 

right? 

Director MCCONNELL. That is part of it. 

Mr. TIERNEY. Now, the government’s been arguing for the agility 

and speed and says it should not need to prepare applications with 

particularized orders, meaning specific persons or the specific thing 

being accepted, for foreign targets overseas. That is the issue that 

I think these laws have been trying to deal with. 

Still, you will agree with me, I think, that when the government 

listens to both ends of the communication, one in the United 


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States, as it admits it has done, and probably will do, even if inadvertent, in the future, it does infringe on the privacy rights of 

American citizens. 

The question is whether or not that infringement is reasonable. 

Director MCCONNELL. Sir, the issue for us is, you can only target 

one end of that conversation. You can’t control who that person 

might talk to. 

Mr. TIERNEY. Exactly. So, for this purpose, the government has 

put in some selection and filtering methods. 

Director MCCONNELL. The issue is who you target. 

Mr. TIERNEY. Well, the issue is not who you target; you are going 

to target foreigners overseas, but sometimes they are going to have 

communications that go through the United States. So the issue is, 

what are you intercepting. 

Director MCCONNELL. That is correct. The old law was, if it 

touched wire here, we had to have a warrant against the foreign 

target. That was the issue. 

Mr. TIERNEY. Mr. Baker, who, I think you will agree with me, 

is an expert on the legislation and implementation of FISA—at 

least your general counsel, Ben Powell, said he was an expert in 

front of the Judiciary Committee—— 

Director MCCONNELL. He is an expert. 

Mr. TIERNEY [continuing]. He indicates to us in his testimony 

that it wasn’t a situation of technology that really is the issue here. 

He says that, contrary to the history earlier, Congress anticipated 

fiberoptics and cable usage in overseas conversation when it did 

FISA back in 1978; but the real issue is, who is the decision-maker 

for authorizing what it should be, what level of justification should 

be required, and what standard of review should the decisionmaker apply, how individualized authorizations to conduct surveillance should be, and what role judges should play in this process. 

He testified that in many situations over the years aggressive 

and well-meaning attorneys throughout the government pushed aggressive interpretations of the law to make sure we balance its reasonableness. 

The government has these selection and filtering methods. The 

question is whether the government’s criteria for determining selectors and filters result in methods that are likely to assure that 

communications being intercepted are to and from non-U.S. persons overseas and whether those communications contain foreign 

intelligence. 

Now, even that is backing off of the requirement that it—if you 

are a foreign agent or an agent of a foreign power, it broadens it 

out. But assuming we are going that far on that, it is probably 

more important that we have adequate protection. 

Is there any reason why that determination of reasonableness, 

whether or not those filtering methods are reasonable, shouldn’t be 

left to a court as opposed to you, sir, as the DNI, and the Attorney 

General? 

Director MCCONNELL. They are under the law as signed in August; they are subjected accordingly. 

Mr. TIERNEY. After the fact, significantly after the fact. And then 

the standard is ‘‘clearly erroneous.’’ It means you have to give inVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00087 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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credible deference to the administration, not just the usual deference. 

Is there any reason in your mind why that could not be subjected 

to judicial review at a reasonable standard? 

Director MCCONNELL. The issue I would object to is submitting 

it to the court before we can engage in conducting our mission. 

Mr. TIERNEY. You are already engaging in your mission right 

now. So if we were going to have a law at a future date, is there 

any reason under that system the judge could not first determine 

whether or not those selection and filtering processes were reasonable? 

Director MCCONNELL. I would object to having courts be between 

us, conducting the mission and giving us permission in the way you 

describe it, foreign person, foreign country. 

Where it is now, the court will review it, as you mentioned, after 

the fact of procedures, to make sure we are doing it right. 

Mr. TIERNEY. Let’s have the procedures approved before they go 

into effect. 

Director MCCONNELL. Then you get us in a situation where we 

were discussing earlier, with getting the emergency procedure. 

Mr. TIERNEY. But you already have a law in effect right now. 

Director MCCONNELL. We have the law in effect, which changed 

the hypothetical you are setting up. 

Mr. TIERNEY. I am talking about going forward. You have a law 

in effect and you are collecting now. 

Director MCCONNELL. That is right. 

Mr. TIERNEY. So going forward, is there any reason why a court 

couldn’t review for future use whether or not your methods are in 

fact reasonable? 

Director MCCONNELL. What we are targeting changes all the 

time. So if you put the court between us and the foreign targets, 

then that—— 

Mr. TIERNEY. We are putting the court in a determination of 

whether or not your selection and filtering methods are reasonable. 

Director MCCONNELL. Which is in the law now. 

Mr. TIERNEY. Whether or not your determination was clearly erroneous, which is an entirely new standard from matters of fourth 

amendments rights. 

Mr. WAINSTEIN. Sir, may I make a quick point on that? 

Mr. TIERNEY. Only if I could get the Director’s answer on that 

first. 

Director MCCONNELL. Sir, what we tried to accomplish was having the court look at the procedures in a reasonable way. 

Mr. TIERNEY. Why did you accomplish not allowing the court to 

make a determination as to the reasonableness of those selections 

and filters? 

Director MCCONNELL. I am not objecting to that so long as it’s 

not in advance. Our world is very dynamic. 

Mr. TIERNEY. You have no objection to the court making the review as to whether or not your selection and filtering methods are 

reasonable. 

Director MCCONNELL. Reasonable. 

Mr. WAINSTEIN. If I could, just very briefly, the law that you 

passed requires that; but the standard, as you pointed out, is clearVerDate Aug 31 2005 01:41 Jan 29, 2008 Jkt 038878 PO 00000 Frm 00088 Fmt 6633 Sfmt 6602 E:\HR\OC\A878.XXX A878

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ly erroneous, and you said that is a new standard. That standard 

is actually in FISA, the original FISA. 

Mr. TIERNEY. But not in this application, not with respect to 

whether or not you are looking at the selection and filtering methods. It is a significant departure downward from a fourth amendment requirement that warrants it be based on reasonableness. 

Mr. WAINSTEIN. Sure. It is a different animal. 

Mr. TIERNEY. Not that much of a different animal. We are talking about interception of communications of people in this country, 

of U.S. citizens. So the reasonable standard there is no reason—as 

I understand the Director now saying, he has no objection either— 

that the court look at that for the purposes of reasonableness. 

Mr. Director, do you have any objection to the court actually 

looking afterwards at the reasonableness of the mitigation aspects 

that are put in play? 

Director MCCONNELL. A review after the fact, no. 

Mr. TIERNEY. Do you have any objection to the inspector general 

auditing the performance of the government under this law, or 

whatever law might come along, so it can report to Congress on 

what has transpired under the act? 

Director MCCONNELL. I would have to understand exactly what 

that means. There are about four levels of review now. 

Chairman REYES. If I could interrupt, we have got three votes. 

We are going to have to recess. You are certainly welcome to come 

back. 

Mr. TIERNEY. One question and I will be done. 

Do you have any objection to the inspector general’s office doing 

a review or reporting to Congress on the implementation of this 

law? 

Director MCCONNELL. If it was something requested by the Congress as part of the Congress’ duties, that is something you could 

request. I think the standard we have now established is sufficient 

because there are four levels of review. 

Mr. TIERNEY. The standard right now is that the executive will 

watch over the executive and report about what the executive is 

doing. 

Director MCCONNELL. No, sir. It involves the court and it involves the Congress. 

Mr. TIERNEY. We can have a discussion, if the chairman wants 

to leave; but I can tell you, it has not in any semblance of satisfactory manner, in my view. 

Chairman REYES. We have three votes. We are going to recess. 

We should be back in about 20, 25 minutes. 

The committee stands in recess. 

[Recess.] 

The CHAIRMAN. The committee will please come to order. 

And the next speaker will be Mr. Ruppersberger, who will be recognized for 5 minutes. 

Mr. RUPPERSBERGER. Mr. Director, first I think that this is an 

issue that we should come together, Republicans, Democrats, as a 

country, and that is why we are having these hearings. We know 

we are rushed through, but we do need to resolve some of these 

issues. 


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There is no question that everyone here is going to get the tools 

pursuant to our Constitution to be able to fight terrorism. But, you 

know, I think the big issue, the big dispute is the issue of oversight. 

Our forefathers created a great system of government with 

checks and balances. And we need to continue those checks and 

balances as it relates to Americans. 

That is what our men and women in the military fight for, for 

our freedom and liberty and also our Constitution. 

Now Director McConnell, I would like to ask you three issues: 

You said that you needed three components to deal with what we 

have. Number one, no individual warrant for foreign targets; would 

you agree? 

Director MCCONNELL. Yes. 

Mr. RUPPERSBERGER. A way to compel the private sector to assist 

surveillance. 

Director MCCONNELL. With liability protection. 

Mr. RUPPERSBERGER. And three, a requirement for individual 

warrants when targeting Americans. 

Director MCCONNELL. A U.S. person, yes, sir. 

Mr. RUPPERSBERGER. Yes. Not foreign. 

I think it is very clear in the old law and what we are talking 

about now that we don’t need a warrant as it relates to foreigners. 

Director MCCONNELL. A U.S. person can be a foreigner if he is 

in this country. A U.S. person and foreigner, even a terrorist suspect, would get that protection if he is in the United States. 

Mr. RUPPERSBERGER. That is up to interpretation. We need to 

clarify these laws, and that is why we are here to write the laws. 

And right now, I think just the President’s statement yesterday, 

there is no clarity. 

I happen to represent the district where NSA is located, and I 

am the chairman of the committee that oversees the NSA. So a lot 

of the people that work at NSA are my constituents. They need 

clarity. They need to go to work and know what is right and wrong 

and know what these issues are—— 

Director MCCONNELL. I fully agree. 

Mr. RUPPERSBERGER. Now with these three components, it is my 

belief that the negotiations that we had in the Democratic bill, 

H.R. 3356, addressed all of these issues. Do you feel they did or did 

not? 

Director MCCONNELL. No, sir, not when you extend some of the 

language to the impact, and that was our issue. 

Mr. RUPPERSBERGER. I believe from what I have heard today that 

we are very close to resolving the issues. 

The one point is the oversight. And I can say this: This issue 

that has been used about Iraq and Americans kidnapped, that is 

a leadership, that is a command issue. We—this law will allow us 

to react at any time. And all we are doing, and I think people misunderstand the fact that there is so much volume that has to be 

done in these very rare circumstances, and the testimony that we 

have clearly has persuaded me that we in no way need to have 

even probable cause if there is an emergency situation that exists 

and you can act upon that and you need—you can act upon that. 


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However, you have the 72 hours to develop, so the court oversees 

it. But the court is only overseeing process, not each individual 

case. Would you agree with that? 

Director MCCONNELL. In the old law, we had to have probable 

cause that would stand up. In the new law, which was signed in 

August, we would not have to have now a warrant for a foreign 

person, foreign country. So that situation wouldn’t arise again 

under the current law. 

Mr. RUPPERSBERGER. And yet we have no judicial oversight. That 

is the issue. That is not the system our forefathers created. 

You have said that you agreed that the courts should be involved 

in reviewing procedures for surveillance that may involve Americans after the surveillance begins, correct? 

Director MCCONNELL. I am sorry. I couldn’t quite hear you. 

Mr. RUPPERSBERGER. You have said that the court should be involved in reviewing procedures for surveillance that may involve 

Americans after the surveillance has begun. 

Director MCCONNELL. No, sir. Not exactly. The law says, currently, if it involves U.S. persons, we get a warrant. So that is a 

decision up front that now—I think what you are describing, the 

law now subjects to the court review of our process and procedures 

to make sure it is consistent with the law. I agree with that. 

Mr. RUPPERSBERGER. You agree with that. 

Let me get to one other thing. Wire taps. 

I used to do wire taps as an investigative prosecutor, always with 

the courts, dealt with the telecom companies. 

You can’t have wire taps if you don’t have their support and they 

need to work with you. And I agree that there should be some type 

of immunity as it relates to the telecom companies because they 

are really acting on behalf of the Nation as really an agent of the 

United States. 

But here is a problem that we have. To just say you want immunity is not enough. We want to know what we are giving immunity 

for. And unless we get the documents that we have asked for, I 

can’t understand why there is a resistance to give us the information that we want to see from the administration, and if we get 

that, I believe that we might be able to come together and to put 

together a bill very quickly on behalf of our country and give our— 

the resources that we need to deal with the issue of terrorism. 

Now please address the issue of why we have not been able to 

receive this information. We cannot give blanket immunity until we 

find out what we are giving immunity for. Could you please answer 

that? 

Director MCCONNELL. Sir, all I can say is it is not something I 

am responsible for. I made my recommendation. It is a subject 

under current dialogue between the various committees. 

Mr. RUPPERSBERGER. Would you make recommendations to the 

administration to give us information so that we can make a decision on the immunity? 

Director MCCONNELL. My recommendation is to give the Congress access to what they need for the oversight purposes. 

Mr. RUPPERSBERGER. Would you be continue to be very strong in 

your recommendation to the President? 

Director MCCONNELL. I am strong in that because I believe it. 


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Mr. RUPPERSBERGER. If we can see that, then we might be able 

to resolve this entire issue without the anxiety and the President 

going to NSA and talking about lives at risk. We all care about 

American lives, and we will do what we have to do to protect them. 

Thank you. 

The CHAIRMAN. Thank you. 

Ms. Schakowsky. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 

Director McConnell, I am wondering, first, if you would provide 

to the committee in classified form specific instances of how NSA 

or the Intelligence Community was prevented altogether from collecting foreign intelligence prior to the passage of the PAA? 

You say those words, prevented altogether, on page 6. Mr. 

Wainstein says prevented altogether on page 5 of his testimony. 

So I would like to know how the law prevented altogether in 

which instances you were prevented from the ability to collect foreign intelligence. 

And I would also like to know when you present that to the committee in classified form, how H.R. 3356 did or did not correct that 

problem. 

So that is a request. Would you comply with that request? 

Director MCCONNELL. Yes, ma’am. 

Mr. WAINSTEIN. I could answer that right now if you would like. 

Would you like an answer to that? 

Ms. SCHAKOWSKY. I would imagine that there are specific instances that you would want in classified session, but if you want 

to briefly answer that. 

Mr. WAINSTEIN. I think it is important to note that one of the 

things that is required when we have to go through the FISA court 

is we have to show probable cause that the person we want to target is an agent of the foreign power, and the rest of our signals intelligence collection, we don’t have to do that. That is a big burden. 

Ms. SCHAKOWSKY. But I would like to know, and that is why I 

would prefer to have it in the classified form because I want to 

know the times that you were prevented from doing that. 

Mr. WAINSTEIN. I understand. But just in the abstract, there are 

a number of instances where we cannot make that showing and we 

could not therefore do that surveillance, and that is one of the 

issues that we had with the bill. 

Ms. SCHAKOWSKY. I want to assure myself by seeing those instances. 

Director McConnell, we have been repeatedly told that the rights 

of U.S. persons would be protected under the new authorities because the NSA would minimize—you talked about minimization— 

U.S. person information. 

So will you commit that you will be able to tell us how frequently 

U.S. person information gets collected under the new act? 

Director MCCONNELL. We will look at the information and see 

what can be made available. As I tried to explain in a similar question earlier, we may not be able to even answer the question, but 

what we can find we will provide to the committee. 

Ms. SCHAKOWSKY. Okay, then, and will you be able to—will you 

commit to that? You will be able to tell us how many times U.S. 

person information gets disseminated under the new act? 


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Director MCCONNELL. Yes, ma’am. That is an easier thing to do. 

Ms. SCHAKOWSKY. Will you be able to commit that you will be 

able to tell us how many times information gathered under the new 

act gets used to seek FISA warrants under U.S. persons? 

Director MCCONNELL. That would be a relatively straightforward 

thing, yes. 

Ms. SCHAKOWSKY. So you may not be able to tell us how much 

U.S. person information gets collected under the new act. 

If you are unable to answer that basic question, how is this committee going to be able to do proper oversight to exercise our constitutional mandate to do that kind of oversight to protect the 

rights of Americans? 

Director MCCONNELL. Ma’am, as I tried to explain earlier, it may 

be incidental collection. You don’t—there is no human that is 

aware of it. So you wouldn’t know that until you went into the 

database. That is why I was saying to answer your question specifically, it may not be an answer we can get. Now once there is some 

reason to look at data, then we can—we keep track of that—we 

would certainly be happy to provide it to you. 

Ms. SCHAKOWSKY. Okay. So there may be information about 

Americans in that database. 

I am looking at your testimony before the Judiciary Committee 

on Monday, ‘‘I am not even sure we keep information in that form. 

It will probably take us some time to get the answer.’’ 

And then later you say, ‘‘it might create a situation where it creates significantly extra effort on our part.’’ 

I think the protection of the privacy rights of U.S. persons is 

worth effort. I mean, if names are in a database and they are sitting in a database of innocent Americans, it would seem to me that 

that would be something this committee, that this Congress should 

be able to have oversight on. 

Director MCCONNELL. Ma’am, let me try to put it in a context, 

maybe use an example, make it a little easier to understand. There 

are literally billions of transactions. 

Ms. SCHAKOWSKY. But how do you know it is incidental if you 

don’t have the statistics? 

Director MCCONNELL. In the context of foreign intelligence, we 

can’t control what foreigners might say about Americans. Frequently, there is a reference to political figures in the United 

States or something. We may not know that is in the database 

until we have some reason to go query that portion of the database 

for foreign intelligence purpose. So it could be there and us not be 

aware of it. That is the point I am trying to highlight. 

Where it has been used or specifically excluded from the database, we probably can provide those numbers. I just don’t know the 

extent of it, but I will be happy to look at it and see what we can 

provide to you. 

Ms. SCHAKOWSKY. You know, Mr. Chairman, let me just say that 

on a number of occasions, we have found that databases have collected private information about American citizens, and later on, 

then, well, we made a mistake; it shouldn’t be there; we should get 

it out of the database. 


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I would prefer to see that at the beginning of the process that 

we make sure that we protect people’s rights and that that become 

a priority regardless of the effort that it may take. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentlelady. We will pursue that from 

a committee standpoint. 

Mr. Langevin. 

Mr. LANGEVIN. Thank you, Mr. Chairman, and gentlemen, thank 

you for your testimony here today. 

I appreciate the difficult job that you have on your hands and all 

that you are trying to do to protect the American people. 

We are in this together, and we want to make sure, of course, 

that you have the tools that you need in order to protect the country. It is equally important we want to make sure that we are protecting the rights, the civil liberties of the American people. And 

that is what the struggle really is all about. What is the right balance. And I think we are all on the same page; we are very close 

on most of these issues. We clearly—there is a unanimous agreement here that we don’t need a warrant for foreign-to-foreign communications, and I want to make that clear for those that are 

watching. 

I did want to get into some of the questions with respect to surveillance of insurgents and the example in Iraq that had been 

given. 

Correct me if I am wrong, but ‘‘insurgent,’’ by its very definition 

is to qualify as an agent of a foreign power. So when you are talking about, you know, justification for probable cause, that is your 

probable cause, right? 

Director MCCONNELL. Yes, sir. It is the process of going through 

that and submitting it to the court is the issue. 

Mr. LANGEVIN. So it is not a heavy lift to prove that that is a—— 

DIRECTOR MCCONNELL. My point is it took time and then it had 

to satisfy a court for probable cause standard. That is what I was 

trying to highlight. 

Mr. LANGEVIN. I want to get into the process part of this. One 

thing where we haven’t drilled down into is the fact that the process really there is really two parts of it. There is the legal or management or judicial part of the process, and there is the technical 

part of the process. And clearly, either before the Protect America 

Act was passed or after, although it clarifies and as did the House 

bill that we passed, that there was pretty much we believe that 

that satisfied all of the three requirements that you said that you 

needed; and we bent over backwards to try to make sure that we 

gave you what you needed in terms of being able to conduct proper 

surveillance and at the same time protecting civil liberties. That 

House passed bill solved the management and the judicial part of 

it, but the reality is even the Protect America Act did nothing to 

change the technical aspects or the steps that need to happen physically in order to do surveillance. 

Director MCCONNELL. It took away the requirements for probable 

cause. 

Mr. LANGEVIN. That is a management change. That is the judicial change. But we talk about the delay that, even in surveillance, 

it is—there are still technical things that happen that take time. 


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Director MCCONNELL. No question. It is automatic. 

Mr. LANGEVIN. So I wanted to—the Protect America Act, even 

that went only so far. I mean, there are still—— 

Director MCCONNELL. Still going to take some time, no question. 

Mr. LANGEVIN. I wanted to clarify that for the American people 

for those who are watching. 

While I still have my time, Director McConnell, on September 

17th, this committee had received a letter from—actually, let me 

go into another area because I was going to—I don’t have that 

much time left. 

You had made various statements, sometimes, that seem to be 

inconsistent in the whole process when we were deciding between 

the administration bill and comparing that with the—with 3356, 

the Reyes-Conyers bill. 

For example, on August 3rd, 2007, the eve of the House vote on 

H.R. 3356, you issued a statement claiming that the House proposal was unacceptable and that the bill would not allow you to 

carry out your responsibilities to provide wanting to protect the 

Nation. 

Yet during a recent interview with the El Paso Times, you noted 

that you never had a chance to read the bill because again it was 

so complex. 

Can you clarify which of those statements are accurate? I am 

looking at your—the statement that you had on the Web site, and 

I can read it, if you need me to. 

But can you clarify it for—— 

Director MCCONNELL. Sure. I would be happy to. 

In the final flurry, there were seven bills exchanged I think: four 

from the administration and three from the Congress. So what I 

might have been referring to was the situation in the Senate when 

what we were facing in the last few moments was very senior people calling me saying, do you agree to these points. 

What I was trying to go back to are the three philosophical 

points or fundamental issues you had highlighted earlier which is 

my point of view. I had a team of 20 or so lawyers that are technical experts in aspects of it. So once we had examined the House 

bill, there were portions of it that inserted ambiguity and you—you 

slipped into it a moment ago. You said foreign-to-foreign. Many 

would like to say it is okay if it is foreign-to-foreign. What I keep 

trying to highlight for the committee is you—is you can only target 

one thing. You have no control over who the person at the other 

end of the phone is going to call or who is going to call that person. 

So the language that was in 3356 inserted ambiguity and uncertainty. We weren’t sure it would come out the way we needed it 

to come out to do what we thought to protect the nation. 

Mr. LANGEVIN. Did you in fact read the House passed bill? 

Director MCCONNELL. I personally skimmed it over. Did not read 

it in intimate detail. I said I had a team of 20 lawyers that know 

every piece of it, were examining the intended and unintended consequences. 

So any statement that I issued would have been a result of that 

process. 


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Mr. LANGEVIN. I just want to point out that both the House 

passed bill and the administration bill were each six pages long, so 

it is not a heavy lift to read through it thoroughly. 

Director MCCONNELL. I understand that, sir, but let me highlight 

the definition of electronic surveillance. What we were attempting 

to do is to get foreign—‘‘target foreign country’’ excluded from that 

definition. If you don’t exclude it, then it has consequences 

throughout. 

Mr. LANGEVIN. My time has expired, but I wanted to clarify that 

clearly my opinion both then and now, that is exactly what the 

House bill did, gave you the things that you needed to do to exclude foreign-to-foreign, and it was not an issue. 

Director MCCONNELL. I will be happy to go sit down and go 

through it and let you see our point of view and your point of view 

and see if we can agree on some language. 

Mr. LANGEVIN. I hope we can do that. 

I yield back. 

The CHAIRMAN. Ms. Wilson. 

Mrs. WILSON. There has been some discussion here about using 

common sense and that, particularly in cases of emergency, people 

should use common sense and that we should listen to people overseas particularly in a case where someone has kidnapped our soldiers. 

Mr. Wainstein, is there a common sense exception to the requirements under FISA? 

Mr. WAINSTEIN. No, ma’am. The requirements are pretty stark 

and clear, and there are criminal penalties if you violate them. 

Mrs. WILSON. So if someone said, look, this is a—this is an emergency with all reasonable people here, we know we have got to find 

these guys, let us go up on the number and we will take care of 

the paperwork later. Would that be a felony? 

Mr. WAINSTEIN. It would be. 

Mrs. WILSON. Are you willing to commit a felony? 

Mr. WAINSTEIN. No. As a public servant, I cannot violate the law. 

Though I understand the thought that it would be nice under those 

circumstances to do whatever is necessary to save American lives, 

the reality is that we can’t do that. 

Mrs. WILSON. In the case where you have got an analyst forward 

who perhaps is located in Baghdad who had—thinks that he had 

something. Thinks that he had something that might be able to 

help in an emergency situation, knows it is an emergency situation, 

can he pick up the phone and call you and say, hey, I have got 

something here, it is really important, this is why I think that? 

Can you sign off on it if that in reality happened? 

Mr. WAINSTEIN. It does happen. These calls go straight into the 

folks who work directly with me. They get right to me and get right 

to the Attorney General. That actually happens in a very short 

time. What happens is they have to have the information necessary 

to satisfy the probable cause standard. 

Mrs. WILSON. So they have to be able to show you that they have 

probable cause to believe that this guy in a foreign country is affiliated with a foreign power and so on and so forth, all of the requirements that are set out in the statute? 


ccoleman on PROD1PC77 with HEARING
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Mr. WAINSTEIN. Exactly. And if I played this out, if we go ahead 

and authorize emergency—grant emergency authorization to go 

ahead and go up on surveillance, and within 72 hours we are not 

able to satisfy the probable cause standard to the FISA court, that 

surveillance goes down. We lose that surveillance. 

There also are penalties in that statute to say that—there is a 

presumption that we have to notify the target that we have been 

surveilling him. 

Mrs. WILSON. Let me make sure I understand this. 

So if we move too fast, we didn’t meet the probable cause standard for a foreign person in a foreign country, it was probably an 

insurgent, and the FISA court here in Washington says, ‘‘No, you 

didn’t meet that probable cause standard,’’ we would actually have 

to go out and find the insurgent and tell them that we were trying 

to listen to them? 

Mr. WAINSTEIN. In theory, we would. There is a presumption 

that we actually notify the target of the fact of the surveillance 

which, if you can imagine, would really compromise our intelligence 

operation. 

So it is because of that and just because we have to adhere to 

the law, we take that responsibility very seriously to make sure we 

have the sufficient evidence, no more than bare sufficiency, but we 

have sufficient evidence to satisfy probable cause. 

Mrs. WILSON. And the Protect America Act fixes these problems? 

Mr. WAINSTEIN. Yes, for targeting people overseas it does, 

Mrs. WILSON. When was this committee first briefed on the particular case that we have been talking about? Do either of you remember? 

Director MCCONNELL. I can get back to you. I just don’t remember. It was actually briefed back to you by another group in our 

community, and I don’t remember the exact date. 

Mrs. WILSON. Do you remember about when? 

Director MCCONNELL. I would say probably—our people back 

here think it was May, but I will get you the specific date. 

Mrs. WILSON. I believe you are correct. 

I want to thank both of you gentlemen for your work on behalf 

of the country. 

I would ask one final question. The Attorney General is required 

to report on all electronic surveillance in the United States conducted under the Foreign Surveillance Intelligence Act as amended 

every 6 months to this committee. 

Will you provide that information and will you continue to provide that information to the committee as required by law, Mr. 

Wainstein? 

Mr. WAINSTEIN. Yes. Absolutely. And we will also do the additional reporting that we have agreed to do in regard to the Protect 

America Act. 

Mrs. WILSON. Could I continue to go out to the National Security 

Agency, as I have before, and be given open access to all of their 

cases with respect to satisfying for myself that you are following 

the law? 

Mr. WAINSTEIN. Absolutely. 

Director MCCONNELL. Yes, ma’am. 


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Mr. WAINSTEIN. If I may, Mr. Chairman, briefly correct one 

thing. 

When I told you about the provision that says we have to notify 

the target if we go up on emergency authorization and don’t end 

up getting court authorization, that request is limited to U.S. persons. 

So let us say we have a U.S. person who is an agent of a foreign 

power and we go up on that person overseas, we would have to notify him. I think because the hypothetical you posited was an insurgent, in the case it is not a U.S. person insurgent, we wouldn’t 

have to. 

Mrs. WILSON. But if it was a U.S. person overseas that we were 

tracking and we went up too quickly. 

Mr. WAINSTEIN. Yes. We would have to, and not only does that 

have practical consequences but it reflects the seriousness with 

which Congress and the court takes our assessment of the evidence 

of the front end to make sure there is probable cause. 

Mrs. WILSON. Thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you for clarifying that up because I was 

going to ask you that very same question. 

Mr. Holt. 

Mr. HOLT. Thank you, Mr. Chairman. 

Mr. Director, you said that emergency provisions under FISA 

still have to meet a probable cause standard. 

Director MCCONNELL. Earlier but not now. 

Mr. HOLT. So what standard do they have to meet? Is it the 

hunch of a political appointee? Is it the firm belief of a dedicated 

professional in the middle of the administrative change? I mean, 

who has the responsibility? 

Director MCCONNELL. For determining—— 

Mr. HOLT. If it is not a probable cause standard, what standard 

is it, and who applies that standard? 

Director MCCONNELL. For a foreign target in a foreign country, 

is that the question? 

Mr. HOLT. The standard that justifies intercepting and storing 

and maybe in the future analyzing a communication. 

Director MCCONNELL. For a foreign target in a foreign country—— 

Mr. HOLT. For any of that who is determining whether it is a foreign target to determining whether there is someone whose conversation should be intercepted. 

Director MCCONNELL. Since our mission is foreign intelligence, 

the standard would be enforced by the analyst working the problem 

against a foreign target in a foreign country. 

Mr. HOLT. And if this person who is responsible for it knows that 

there is no judicial oversight, not in 72 hours, not ever, do you 

think this person will make the decision differently under this law 

than the person would have made it under, say, FISA? 

Director MCCONNELL. No. I don’t think so. 

Mr. HOLT. So the FISA law would have been just fine because 

operationally the person wouldn’t make the decision any differently 

under this law. I believe that is what I just heard you say. 

Director MCCONNELL. That is not correct, sir. I would like to respond to that. 


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The issue we are discussing is, do you have to have probable 

cause submitted for an approval process for a court on a foreign 

person in a foreign country. That is what we are trying to highlight 

here. It is not the way you framed it. 

Mr. HOLT. What I was asking was, who makes the decision and 

who overseas that decision? Who provides protection against the 

kind of thing that we see in oppressive governments around the 

world, a knock on the door in the middle of the night, somebody 

barges in and searching the place? Now we are talking about figuratively, an electronic search, maybe not a physical search, although maybe we are talking about that in this legislation. 

The question is, who provides the kind of check and balance that 

Americans expect that will protect them against having their lives 

ruined by an overzealous government who is trying to protect the 

safety and security of the people? 

Director MCCONNELL. Three levels of protection—— 

Mr. HOLT. Or would protect them from a government who would 

have an enemies list which you might say that it never happens 

here, but it has. 

So the question is, who provides what standard, and you just 

said, I thought, that operationally the person would make the—the 

person who does make the decision that it is okay to tap this phone 

or to intercept that communication would not make a decision any 

differently if the court were not looking over his shoulder if they 

were not required to have a warrant either now or maybe 72 hours 

later. 

Director MCCONNELL. Three levels of protection. First of all, the 

initial judgment would be made the same way it has been made 

for almost 30 years. That is—that is the professional that is doing 

the mission. It would be then reviewed internal to that organization. It would be reviewed by the Department of Justice, and as 

passed in the law last month, the procedures for doing that would 

be reviewed by the court. 

The last level of oversight is this body, this committee. You can 

walk at any time out to NSA, look at anything you want to—— 

Mr. HOLT. But you just said you can’t give us that information. 

You said to Ms. Schakowsky, you said you don’t even really know 

whether—who we have intercepted. 

Director MCCONNELL. I said it might not be knowable. We can 

look at it and see if it is a knowable answer. 

Mr. HOLT. So that is not much reassurance to us so we have to 

exert that oversight that no one else along the way is exerting except a well-meaning political appointee, or maybe not so well-meaning political appointee, or well-meaning but perhaps mistaken bureaucrat. These people are trying to do their jobs. They are trying 

to protect us. But we have to give them the guidance. 

Now one of the things that concerns us is that, you know, the 

Intelligence Community, you are particularly, more than anyone 

else in the United States, supposed to speak truth to power. And 

that means you have to keep a certain distance from that power 

to whom you have to speak the truth. And that is why it concerns 

me that when you talked about the lawyers who were working to 

prepare this legislation back in August, when you made the—some 

of the statements that you made, they clearly seem to be influenced 


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by lawyers in power in the White House, in the Vice President’s Office. And that is troubling, actually. 

You, of course, are a Presidential appointee, but it is critically 

important that you keep a professional distance. That is why I 

asked these questions earlier today that I am afraid you might 

have thought were insulting. But your credibility as an independent person is so important to our safety and security, so important to our rights as humans. 

So, I mean, can you say that during those hours when this legislation was not—was being written that your team of lawyers was 

not consulting with, say, Mr. Addington and his team of lawyers? 

Director MCCONNELL. I would say it was not influenced by a political process. I spoke truth to power. There is a team of lawyers 

that worked this starting last year and a team worked it throughout the past year and up to including the period of time that we 

had the bill passed in August. 

Mr. HOLT. How much consultation was there between your lawyers and the Vice President’s lawyers? 

Director MCCONNELL. With the Vice President’s lawyers, there 

was extensive consultation with the lawyers working the problem. 

I don’t know who was working the problem in the Vice President’s 

Office. 

Mr. HOLT. Forgive me if this seems insulting, but you have to 

take a step back about what it means to be able to speak truth to 

power and to have an independence in what we say that is permissible to do with Americans’ lives. 

Director MCCONNELL. I did. 

The Chairman. Thank you, Mr. HOLT. Mr. Tiahrt. First round. 

Mr. TIAHRT. Thank you, Mr. Chairman. 

This year, in a bipartisan fashion, we passed the Protect America 

Act. It passed the House. It passed the Senate, signed into law by 

the President. 

Would you—what would the impact on the intelligence collection 

be if the Protect America Act were not renewed? 

Director MCCONNELL. We had lost half to two-thirds of our capabilities, specifically targeting terrorist groups because of the, not 

the court, but the language of the law that the court had to interpret, and within a few days after passing the act, we were brought 

back up in full coverage. 

Mr. TIAHRT. So the Protect America Act has helped enhance the 

speed and agility of the Intelligence Community? 

Director MCCONNELL. Significantly, yes, sir. 

Mr. TIAHRT. Okay. That is good news. 

Now we heard privacy advocates outside and inside the committee that have argued that the minimization processes are inadequate to protect Americans’ privacy interests. They take issue 

with the fact that the government may still capture and screen incidental communications as we just heard and even if no use is ultimately made of the contents of those communications. 

Do you feel that the procedures adequately limit the government’s intrusion into the protected communications of America? 

Director MCCONNELL. Sir, I do, because intrusion would be a violation of law. So the minimization procedures have been in effect 


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for almost 30 years. They work and work well. I had the pleasure 

and the privilege of serving as the director of NSA, so there is a 

whole training, oversight recertification program about how you 

would do that. And so it has worked well. It has been subject to 

the court and reviewed by the court and endorsed by the court. So 

it has worked for almost 30 years. 

Mr. TIAHRT. Is there a practical alternative to what you are 

doing now? 

Director MCCONNELL. No, sir. There isn’t. That is one of the reasons that we failed to communicate on one of these issues. Often 

someone would say, well, it is okay to do foreign-to-foreign, and 

what I keep attempting to highlight you can only target one end 

of the conversation. You can’t control who that person at the other 

end might call. An overwhelming majority, I don’t know the number, but it is almost always—it would be a foreign-to-foreign communication but can’t guarantee it is. 

So if you make it a condition in the law that you have to guarantee it ahead of time, it effectively shuts down your operation. So 

in the condition that a foreigner called in and there is incidental 

collection, then it would be minimized. If it is nothing of harm to 

the Nation, it would be minimized. If it was potential harm to the 

Nation, that might be our most important call, then we would take 

appropriate action. 

Mr. TIAHRT. If a terrorist is being monitored internationally outside of the United States and somebody from the United States 

calls into that terrorist’s phone number and there is, in the mind 

of the agent, a probable cause to investigate that contact, what is 

the—for that citizen inside America that has made the phone call, 

is that handled by your agency, or do you turn that over to the FBI 

to develop probable cause and complete the investigation? 

Director MCCONNELL. On the way you have described it, the target for my community would be the foreign person, foreign country. 

Once that call is made, as it was in the 9/11 situation, it would— 

subsequently reported on 9/11 and joint commission of Congress— 

that call was made, then Intelligence Community would realize 

U.S. person calling a terrorist, depends on the contents of the conversation. 

If it turns out it is a terrorist operation planning whatever, refer 

to the FBI. The FBI would get a warrant against the U.S. person, 

the person located in the United States and then do their normal 

surveillance mission. 

Mr. TIAHRT. So they would carry out the requirements of the 

Fourth Amendment of the Constitution as far as probable cause? 

Director MCCONNELL. Yes, sir. Under a warrant subjected to 

court review. 

Mr. TIAHRT. The committee received testimony earlier this week 

that the FISA court should have to make probable cause findings 

to protect every person who might potentially communicate with 

the target and not just the target itself. 

In other words, an incidental contact, that probable cause would 

have to be achieved. What is your reaction to that proposal? 

Director MCCONNELL. Effectively, sir, it shuts down our operation because it creates a condition we couldn’t satisfy in the eyes 

of the law. So that is why we are arguing for exclusion of where 


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is the target and the target overseas, and as I mentioned earlier, 

what we were—what we were caught in, in the old wording and the 

old law, is because of where you intercepted it in this country, this 

is what caused the problem. If it had been intercepted in the foreign country in a different mode, wireless, it wouldn’t be a question. 

Mr. TIAHRT. So a majority of the contacts of communications of 

the target—let me put it this way. Does foreign target communications mainly deal with foreigners and their contacts? 

Director MCCONNELL. Almost always. 

Mr. TIAHRT. Almost seldom that it isn’t? 

Director MCCONNELL. It is a very tiny fraction of the percent. 

Mr. TIAHRT. And when it does occur and there is probable cause, 

it is turned over to the FBI. 

Director MCCONNELL. And if it were incidental, meaning they 

call a pizza shop, that is of no intelligence value, you take it out 

of the database. 

Mr. WAINSTEIN. If I could add to that very briefly. 

In the argument that you have heard occasionally, when somebody we are surveilling appropriate under this statute called somebody in the United States, that should then trigger a requirement 

for the government to get some kind of court process against someone in the United States. 

While that sort of has some gut level appeal when you first look 

at it, you have got to recognize that that is not the requirement in 

any of the regimes. 

For instance, on the criminal side, title three warrants. You get 

a title three warrant against one person, that has the—that gives 

you court authority to surveil that person. That person talks to 

somebody else, another American, we don’t have to go back to court 

to get approval to listen to that person’s communications. So that 

is the way it is on the criminal side and on the foreign intelligence 

side. And as the director said, that is the only workable way to deal 

with it. We just deal with it with minimization instead. 

Director MCCONNELL. If you make that other person your target 

now, you are going to listen to him intentionally, that becomes subject to a warrant. 

Mr. TIAHRT. For the record, I would like to say that I think it 

is important that your lawyers communicate with those in the— 

other parts of the administration, and we should not limit free 

speech when we are developing policy or looking at how we apply 

current law. So to limit context in free speech in order to make us 

move forward in this process, I would be opposed to that limits on 

free speech. I think you should be in contact with other areas of 

the government and we shouldn’t restrict it. 

Thank you for your testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Mr. Tiahrt. 

Mr. Tierney. 

Mr. TIERNEY. I am glad you made that last caveat. Because if we 

have significant interception on a U.S. citizen or person in the 

United States, then, of course, you would need a warrant. And I 

think we should all understand that. 

Director MCCONNELL. If they are the target. 


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Mr. TIERNEY. It is determining when that cross-over point is. 

You also at one point in earlier testimony said that there were 

perhaps billions of data or records, transactions, being done. So 

when you talk about a small percentage, it is a small percentage 

of those billions that might sort of scoop in—— 

Director MCCONNELL. When I was talking about billions of transactions, we would have some subset of that; and when you work 

it down, it turns out to be a pretty small number. 

Mr. TIERNEY. So a small percentage of the billions in the subset, 

it still could be a substantial number. That is the problem. 

Earlier this week, we got a letter from Mr. Alex Joel. I understand he is your civil liberties protection officer in your office; is 

that correct? 

Director MCCONNELL. That is correct, and I think he is with us. 

Mr. TIERNEY. It lays out the civil liberty and privacy protections 

that he believes his office is charged with overseeing in the implementation of the new Act. 

I indicated earlier that one of my problems is I don’t think it 

ought to be the DNI’s office overseeing the DNI. But set that aside 

for a second. Mr. Joel’s letter states, among other things, that although he doesn’t read the PAA to require it, the NSA is still using 

the minimization procedures that were previously reviewed and approved by the FISA Court. Does that strike you as accurate? 

Director MCCONNELL. Let us ask Mr. Joel. 

Mr. TIERNEY. He works for you, so I am asking you. Or you 

didn’t know this. 

Director MCCONNELL. Restate the question. 

Mr. TIERNEY. He says the NSA is using minimization procedures 

previously reviewed and approved by the FISA Court. Even though 

he doesn’t read the PAA as requiring it, that is what is being done. 

Director MCCONNELL. That is my understanding of what is being 

done. 

The reason for that, sir, is the Court set the standard, and it has 

been tested in Court. It is a reasonable standard, and it is good for 

us to follow it. 

Mr. TIERNEY. Did that in any way impede the process of implementing any of the new authorities into the PAA? 

Director MCCONNELL. Not to my knowledge. 

Mr. TIERNEY. Do you have an objection to requiring the FISA 

Court to review minimization procedures in any future FISA legislation? 

Director MCCONNELL. Sir, I would be happy to take any recommendations, suggestions you have got. Remember, I tried to 

highlight several times, it is very complex. You want to keep asking me hypotheticals. Let us write it down—— 

Mr. TIERNEY. That is my point. My point is that—— 

Director MCCONNELL. I would be happy to look at anything you 

suggest, sir. 

Mr. TIERNEY. This is something that your office is suggesting because they are the ones that are doing it. Mr. Joel has made the 

suggestion that he is carrying out the fact that he is following 

those previous FISA procedures and you said that didn’t in any 

way impede the operation under the new PAA. So I assume that 


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you have no objection to that being written into the law. That that 

is what—— 

Director MCCONNELL. I have no objection to any recommendation 

that you want to make. I would be happy to examine it. 

Mr. TIERNEY. Are you opposed then to the FISA Court having authority written into the law to do exactly what Mr. Joel is now 

doing on his own? 

Director MCCONNELL. I would be happy to take the language and 

examine it, sir. 

The point I keep trying to highlight—— 

Mr. TIERNEY. Do you have objection to what Mr. Joel is doing, 

to what he is doing now? 

Director MCCONNELL. I have no objection to what he is doing 

now. 

What I am trying to make sure everybody understands is we 

can’t get ourselves in the situation where we were before where we 

are forced under a time constraint. You had a time constraint. I did 

not and—— 

Mr. TIERNEY. We have disagreement on how that time constraint 

came to be, and I—— 

Director MCCONNELL. It was your schedule, not mine. 

Mr. TIERNEY. It wasn’t anybody’s schedule. It was a political 

schedule. It is a very strong point of view, and I think everybody 

realizes it now. 

The fact of the matter is we are trying to find a way to get to 

a law—— 

Director MCCONNELL. We would be happy to look at—— 

Mr. TIERNEY. And apparently you now have no objection to the 

Court looking at those procedures for minimization and approving 

them. 

The letter also notes that the NSA Inspector General is conducting an audit of the implementation of the new Act and that the 

Inspector General regularly conducts audits, inspections and reviews of compliance of minimization procedures. Why was that decision made that the NSA IG would conduct an audit in the implementation of the new Act? Do you know? 

Director MCCONNELL. It has been part of the process since the 

beginning, to my knowledge. 

Mr. TIERNEY. So I can assume you would not object to a requiring in the statute that the Inspector General makes those reviews 

and makes those audits in the future with respect to any civil liberties inspections. Just put into law what you are already doing. 

Director MCCONNELL. Sir, I have no objection to anything you 

want to recommend. 

Mr. TIERNEY. I am not trying to recommend. I am talking about 

do you have an objection to writing into law—— 

Director MCCONNELL. I would be happy to consider it. 

Mr. TIERNEY. The function that Mr. Joel says is now happening, 

the Inspector General doing audits? 

Director MCCONNELL. I would say again, let us write it down and 

let us examine. 

Mr. TIERNEY. Do you have an objection to the Inspector General 

conducting audits? 


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Director MCCONNELL. I do not have an objection to the Inspector 

General conducting audits at the NSA. They have when I was 

there, and they are still there. I have no objection to that. 

Mr. TIERNEY. Fine. That was very easy to get to. We didn’t have 

to write it down. 

Now, earlier, you talked about there being a large data base and 

so making it improbable or difficult, sometimes almost impossible, 

to determine the number of times that United States persons’ communications were inadvertently intercepted when you were going 

after a target in a foreign country. 

Director MCCONNELL. That is not exactly what I said. 

I said we have no control over what foreign targets would talk 

about. Remember it is to, from, or about. So if a foreigner is talking 

about you and it is in the database, I may not know that. I may— 

could find it if I had a reason to go search for it. The database 

would age off in a period of time. No harm, no foul. 

Mr. TIERNEY. But when somebody asks you for the number of 

times when a U.S. person or a person in the United States was involved in that situation, I think you said that there was some degree of difficulty in getting that done. 

Director MCCONNELL. I don’t know how difficult, but we will look 

at it and see if we can answer your questions. 

Mr. TIERNEY. Would it be reasonable to have a sampling done? 

Director MCCONNELL. If we can give you the total, complete answer, we will. I don’t know that we can. But we will take the question and see what is doable. 

Mr. TIERNEY. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Ruppersberger. 

Mr. RUPPERSBERGER. We have had two hearings with you. I 

would like to review where I think we are. 

To begin with, I think it is clear that we all agree that wiretapping foreigners to obtain critical information to protect our 

country is allowed under the Constitution. I think we all agree to 

that. Do we agree to that? 

Director MCCONNELL. Foreign—say it again, sir. 

Mr. RUPPERSBERGER. Wiretapping foreigners to obtain critical information—— 

Director MCCONNELL. What we can’t allow, though, is when the 

wording in the bill would cause that to be in question or could be 

interpreted different ways. 

Mr. RUPPERSBERGER. That is what we are looking for, is clarity. 

And the one area I would get into, though, is I have heard this, 

and I want to clarify this, too. Why are you opposed to having court 

review procedures—this is procedures, not the individual cases— 

after surveillance has begun. That is a concern of mine. Not when 

there is an emergency situation. 

Director MCCONNELL. That is what we agreed to. That is in the 

law. 

Mr. RUPPERSBERGER. I think we are getting very close here. You 

know, these hearings, sometimes you wonder what you have accomplished. I think after these hearings we should be able to come 

together and resolve this issue. 


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I think the biggest area that we have is that we must have judicial oversight. Our country is a system of—we have a system of 

laws; and when in fact the checks and balances go the other way, 

we have problems, no matter who is present. And I think that what 

we object to is that there is not the independent judicial review, 

but we also understand that war against terror is a different war 

than we had years ago, and that is why we are attempting to resolve this. 

I think we have agreed on most of the issues, other than the judicial oversight. 

Now let me ask you this also, this question. The minimization 

issue. When in fact you have an American, where do you think the 

problem is that you see between certain members’ point of view 

here and your point of view on minimization? 

Mr. Wainstein. 

Mr. WAINSTEIN. I am not sure exactly which members you are 

referring to, but I think some of us have voiced some concern that 

minimization isn’t sufficient, that we need to get some kind of court 

approval before we listen in on communications appropriately 

intercepted against the person overseas but that are sent in to 

somebody in the United States. 

Mr. RUPPERSBERGER. What I understand from what I am hearing 

and what my concern would be on the issue of minimization is that 

when a court—what a court does, as far as the oversight, that 

minimization takes the place of that. I think that is something that 

we can work out. 

Director MCCONNELL. Frequently, what people slip into is everybody is in agreement a foreign-to-foreign communication shouldn’t 

be an issue. But if you make that a pre-condition, what we keep 

attempting to highlight is you can’t determine that ahead of time. 

So if you make a pre-condition in the law, you have effectively shut 

us down. 

Mr. RUPPERSBERGER. From what I understand and what we are 

talking about today and you said that what would happen if a 

FISA bill didn’t go forward, and I think we need to clarify that, too. 

We are not talking about not having a bill. We are so close on what 

we have negotiated, and you know that, and I know that. 

Director MCCONNELL. All I am looking for is keeping the minimization process intact. 

Mr. RUPPERSBERGER. If we didn’t have a FISA bill, that we 

would be put at risk, we are not talking about that. Neither side 

is. What we are talking about in the one issue is that we need to 

have a judicial review. But we understand there are emergency situations when America is at risk when somebody is contacted; and 

that has to do, I think, more with operations and giving people the 

resources. If we need to hire more judges and hire more people in 

CIA, NSA to do this, we will do what we have to do. 

Director MCCONNELL. And we now have judicial review. That 

process that Mr. Holt was making reference to about our dialogue 

and who we talk to, that is how the judicial review was proposed, 

agreed to and put in the bill. 

Mr. RUPPERSBERGER. What the law basically says today, the law 

that was passed that we have to look at, is that, basically, under 

the circumstances, I don’t think that you want this or we want 


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this, is that our government has a right to basically have the 

search and seizure of an American without a court order and without the Constitution being involved. We fight for liberties and freedom, and part of that—— 

Director MCCONNELL. I agree with that a hundred percent. 

Mr. RUPPERSBERGER. So, bottom line, if you agree with that, then 

I am not sure where our arguments are, but we are only asking 

for the court to come in and review the process. 

Director MCCONNELL. And that is where we are—— 

Mr. RUPPERSBERGER. Not even individual—that is not what it 

says in this law. This says that our government can have a search 

and seizure of American citizens. 

Director MCCONNELL. No, sir. It doesn’t say that at all. 

Mr. RUPPERSBERGER. I disagree with that interpretation. But, if 

it does, then we don’t have clarity, and we have to fix it, and that 

is our job as Members of Congress. 

Mr. WAINSTEIN. If I may briefly respond to that. Just keep in 

mind, as the Director said, when we target surveillance on a person, a person overseas, we target against that person. If that person calls in the United States, we subject any of the information 

we get of the U.S. person to minimization. That is actually the only 

practical option. 

And, in fact, that is what we do in the criminal side, too. As a 

prosecutor, I get a court authorization to do a title three wiretap 

against defendant A, he might talk to a thousand people. We don’t 

go get court process for every one of those thousand people. 

So as long as we have it against the target, we are allowed to 

collect and minimize that person’s communications with everybody 

else. That is the only way this works, because otherwise—— 

Mr. RUPPERSBERGER. It is not that it works. We are talking 

about what the law says and what you can do, and it is not about 

who you are, you are, we are gone, somebody else comes in. We 

need to clarify it. 

When the President comes to the district I represent and says 

that we need to go further than we are now, when we know—when 

I feel that we will be able to give you what you need to protect our 

country, that is where we are. 

But our Constitution is what we fight for in Iraq and in World 

War II and the Korean war, the Vietnam war, and we have to keep 

focused on that. Those is our jobs. 

Thank you. 

The CHAIRMAN. Thank you. 

The Director and Mr. Wainstein, I am told, have another hearing 

on the Senate side. 

So Mr. Tiahrt will be the last person to have an opportunity to 

ask questions for 5 minutes. 

Mr. Tiahrt. 

Mr. TIAHRT. Thank you, and God forbid we should hold up the 

Senate. 

Director MCCONNELL. Go ahead, sir. It is going to be an interesting hearing over there, too. 

Mr. TIAHRT. I read the law before we voted on it, and I failed to 

see anywhere where we allowed the search and seizure of American information or any of their communications without having 


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some kind of a—without having the methods that you use currently. And the Protect America Act provided for the update from 

the 1970s law, FISA, to allow us to move into the electronic age, 

basically. 

Director MCCONNELL. That is correct. 

Mr. Tiahrt. And so now I think we are taking—it sounds to me 

from what we have had in our discussions this morning that we are 

taking scenarios that may or may not exist and hoping to write 

some laws to involve more lawyers and judges in the process. And, 

so far, I haven’t found any evidence or heard of any incidents 

where you have violated the constitutional rights of American citizens. So I guess maybe we are extending beyond that and that we 

are looking at foreign citizens having the same constitutional rights 

that Americans have. 

And I think most Americans would say that those who intend to 

destroy this country should not have the same rights that we have 

fought for and paid for in blood, and it is embodied in our Constitution. 

If you follow your procedures and we are satisfied with your procedures, would you see a need for Congress to write a law for every 

procedure that you have that you are currently following? Is there 

a need for that that you see? 

Director MCCONNELL. No, sir. And in my opinion, no, and my 

worry is what might be captured to have unintended consequences. 

Right now, the negotiation we had in July and early August, the 

Court does now review all of those procedures. 

So I am satisfied that, based on our lessons learned from 1978 

to the current time frame, tried and tested, our minimization process and so on, I am satisfied that it works to protect American civil 

liberties, and it allows us to do our mission of overseas intelligence 

against foreigners. 

And the reason I hesitate to agree to any specific point is it could 

cause us to not be flexible and capable in our overseas mission if 

we don’t say it just right. And what is in the law today works well, 

and I am very hesitant to agree to any changes to that. 

Mr. TIAHRT. We are abiding by the Constitution with our Protect 

America Act, and we have judicial overview of minimization and of 

contacts with Americans, if they are contacted in the process of accumulating data. 

Director MCCONNELL. And we have reports to this body every 6 

months and, as you need to, you are welcome to look at any aspect 

or any part of it. 

Mr. TIAHRT. Is it fair to say that today’s proceedings are congressional oversight, or do you think we are avoiding our responsibility 

of congressional oversight? 

Director MCCONNELL. No, sir. I don’t think you are avoiding your 

responsibility. I would just like to get more of the Members to sit 

down and look at the data and have a feel for it, have an opportunity to meet the people that actually do this and their professionalism or commitment to also protecting civil liberties. They are 

very, very serious about it, so it gives you an opportunity to get 

some confidence in the process. 

Mr. TIAHRT. I would like you to pass along to all of those you are 

responsible for working here in the government for, thank you for 


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the last 6 years of safety. No attack on our homeland. And I know 

there has been many, many attempts. And I am glad that we were 

able to update the law to move ourselves as a country into the electronic age instead of trying to proceed into the old law that was 

written; and I, too, am very hesitant to inject more lawyers and judicial process into the system which appears to only slow things 

down and makes us, in essence, less safe. 

I mean, because of leaks, we have not been able to collect phone 

data as we have in the past before the Protect America Act. Now 

I think we have improved that significantly. We haven’t been able 

to contact and follow emails as we did because of leaks in the past. 

We haven’t been able to follow financial transactions because our 

allies do not cooperate back to leaks that occurred here in this 

country. All of those leaks I believe were intended to embarrass 

this Presidency, and all of them have made it more difficult for you 

to do your job to keep this country safe. 

So, in spite of all of that difficulty in overcoming all of those obstacles, I want to thank you and the people that work for you for 

keeping this country safe for the last 6 months. 

I yield back. 

The CHAIRMAN. Thank you, Mr. Tiahrt. 

And let me add my thanks for the work that you, Director 

McConnell and Mr. Wainstein, do for our great country. As evidenced today in our hearing, there are a variety of opinions, different concerns. 

One thing that we want to do is work together to give the tools 

necessary to those that are in charge of keeping us safe. 

So, gentlemen, thank you for being here. We appreciate your 

service to our Nation. 

[The information follows:] 

The CHAIRMAN. The hearing is adjourned. 

[Whereupon, at 12:30 p.m., the committee was adjourned.] 

Æ 


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