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38–877 2008

FISA HEARING 

HEARING 

BEFORE THE

PERMANENT SELECT 

COMMITTEE 

ON INTELLIGENCE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

Hearing held in Washington, DC, September 18, 2007 

( 


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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 

TUESDAY, SEPTEMBER 18, 2007 

HOUSE OF REPRESENTATIVES, 

PERMANENT SELECT COMMITTEE ON INTELLIGENCE, 

Washington, DC. 

The committee met, pursuant to call, at 10:05 a.m., in room 

2118, Rayburn House Office Building, the Honorable Silvestre 

Reyes (chairman of the committee) presiding. 

Present: Representatives Reyes, Hastings, Boswell, Cramer, 

Eshoo, Holt, Ruppersberger, Tierney, Thompson, Schakowsky, 

Langevin, Murphy, Hoekstra, Wilson, Thornberry, McHugh, Tiahrt, 

and Issa. 

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

Deputy Staff Director/General Counsel; Jeremy Bash, Chief Counsel; Don Campbell, Professional Staff; Stacey Dixon, Professional 

Staff; Mieke Eoyang, Professional Staff; Eric Greenwald, Professional Staff; Robert Minehart, 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; 

Chris Donesa, Deputy Minority Staff Director/Chief Counsel; Frank 

Garcia, Minority Professional Staff; John W. Heath, Minority Professional Staff; James Lewis, Minority Professional Staff; Jamal 

Ware, Minority Press Secretary. 

The CHAIRMAN. The committee will please come to order. 

Today the committee will receive testimony from four recognized 

experts on the Foreign Intelligence Surveillance Act, or FISA. 

Following the wire-tapping scandals of the 1970s, Congress enacted FISA in 1978 to regulate government surveillance of American citizens in national security cases. FISA instituted two important checks on the ability of the executive branch to conduct surveillance of Americans. First, the government would have to obtain 

an order from a specially designated court before tapping the 

phones of Americans on U.S. soil. Second, the government’s eavesdropping activities would have to be reported to Congress. 

Since 1978, much has changed. First, the threat has changed. 

Our focus is no longer the Soviet Union but rather a lose confederation of terrorist cells, WMD proliferators, and rogue nations. 

Second, the technology has changed. Today, our calls and e-mails 

fly over the Internet through cell phones, BlackBerries, blogs, and 

chat rooms. 

Third, FISA has also changed. The statute has been amended or 

updated by Congress in roughly 50 different ways since 1978. 


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And, last, Congress has made significant changes to the statute 

since the attacks of 9/11, including the use of John Doe roving 

wiretap authority, the expansion of the emergency period for obtaining court orders and authorization for targeting lone wolf suspected terrorists. Those are just a few that I wanted to mention 

this morning. 

One thing, however, has not changed: the Fourth Amendment. It 

is a cornerstone of our Nation and should not be set aside, suspended or amended, not under the threat of war, insurrection, rebellion or even terrorism. To do so would greatly undermine our 

cherished systems of checks and balances. Our Constitution has 

stood the test of time. It has protected the American people for 

more than 200 years. 

Two years ago, we were stunned to learn that, after 9/11, the 

Bush administration had been ignoring FISA. The NSA program 

involved not only targets overseas but also American citizens whose 

phone calls were listened to and e-mail read without a warrant. To 

this day, the administration refuses to share critical information 

about this program with Congress. 

More than 3 months ago, Ranking Member Pete Hoekstra and I 

sent a letter to the Attorney General and to the DNI requesting 

copies of the President’s authorizations and the DOJ legal opinions. 

We have yet to receive this information. 

And so today I would like to say publicly to Bush’s nominee for 

Attorney General, Judge Mukasey, one of your first tasks as Attorney General will be to repair DOJ’s relationship with Congress. 

You can start by turning over the documents that all members of 

this committee have long sought relating to the NSA surveillance 

program. 

In April, the DNI proposed some changes to FISA. The committee had planned a thorough review. In late July, in the midst 

of this review, the administration came rushing in with an urgent 

request to craft changes to FISA before the August district work 

period. Despite our misgivings over the rushed timing, we agreed 

to craft short-term legislation to ensure that our intelligence professionals had the tools that they needed to uncover plots against 

the U.S. 

The DNI asked for three things: first, no individual warrants for 

foreign targets; second, a mechanism to compel the telecommunication companies to cooperate with the government, and, third, individual warrants for targets inside the United States. 

We agreed to all of these things; and the leadership bill, H.R. 

3356, addressed all of these issues. Further, we agreed to the DNI’s 

request to expand this new authority from terrorism to all foreign 

intelligence and other changes that had been requested by the 

DNI. 

But our administration just couldn’t say yes and insisted on moving the goalposts even after striking an agreement with congressional leaders. The administration demanded its version of the legislation, even though our bill gave the Intelligence Community 100 

percent of what it had asked for. The result was that Congress 

passed what I believe was a very flawed bill, the so-called Protect 

America Act. 


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So I want to make clear this morning our concerns are not about 

protecting the rights of foreign individuals overseas. The question, 

I believe, is when communications involve Americans, as was the 

case in the NSA surveillance program, what should the rules be? 

I am concerned that, as drafted, the administration’s bill just 

went too far. It allows warrantless physical searches of Americans’ 

homes, offices and computers. It converts the FISA court into a 

rubber stamp, and it contains insufficient protections for Americans who will have their phone calls listened to and e-mails read 

under this broad new authority. 

I take small comfort that the legislation sunsets in 6 months, but 

we will not wait. In early October, at the Speaker’s request, we will 

mark up FISA legislation to address the needs of the Intelligence 

Community. 

We will legislate based on the full record in this committee. We 

have held four hearings in June and July. Committee members and 

staff have made several trips to NSA to review this new authority. 

We have held a closed hearing on September the 6th with the NSA 

and FBI directors; and, after today’s hearing, we will hold another 

open hearing on Thursday with DNI McConnell and Assistant Attorney General Kenneth Wainstein. 

Our first witness today is James Baker. Mr. Baker is one of the 

Nation’s foremost experts on FISA, having run FISA operations for 

the Department of Justice for the past 7 years. In 2006, Mr. Baker 

received the George H.W. Bush award for excellence in 

counterterrorism, the CIA’s highest award for counterterrorism 

achievements. He is currently on the faculty of Harvard Law 

School. 

Welcome, Mr. Baker. 

The committee is also pleased to welcome back Mr. Jim 

Dempsey. He is Policy Director of the Center for Democracy and 

Technology. He served for 9 years as counsel to the House Judiciary Committee and remains an important adviser to Congress. 

I also want to welcome Ms. Lisa Graves, Deputy Director of the 

Center for National Security Studies. Lisa previously served as 

Senior Counsel at the ACLU and as Chief Nomination’s Counsel on 

the Judiciary Committee. She also served as Deputy Assistant Attorney General in the Department of Justice. 

Welcome, Lisa. 

Finally, I want to welcome David Rivkin, who is a partner at the 

law firm of Baker Hostetler. He has written several articles on constitutional issues. He previously served in government, at the Department of Energy and as a Special Assistant to Vice President 

Dan Quayle. 

And now I would recognize our ranking member, Mr. Hoekstra, 

for any statement that he may wish to make. 

Mr. HOEKSTRA. Good morning, Mr. Chairman, and good morning 

to the witnesses. 

I have got a prepared statement which I will submit for the 

record. I just want to address some of the comments that the chairman made. 

To characterize the notification of the U.S. Congress by the New 

York Times as being ‘‘stunning’’ and perhaps implying that that is 


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the first time that Congress heard about a terrorist surveillance 

program is inaccurate. 

Mr. Chairman, I would like to submit—I don’t have it with me— 

but to get the document and submit for the record the listing of 

briefings to congressional leadership by the White House on the 

Terrorist Surveillance Program—— 

The CHAIRMAN. Without objection. 

[The information follows:] 


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Mr. HOEKSTRA. This would also identify—or when that is put 

into the record will identify that congressional leadership was 

brought in almost immediately after 9/11 to talk about what the 

threat was and how best collectively Congress and the President 

would respond to this threat and keep America safe at a time when 

America was concerned about additional attacks against the United 

States after 9/11 because we didn’t fully understand who was attacking, their capability, and what kind of sleeper cells they had. 

Matter of fact, that document will show that the current Speaker 

of the House was briefed three times and consulted three times 

within the first 11 months as this program started to take shape 

and that the White House consulted with congressional leaders 

about what the program should be, the possibility and the necessity whether legislation should be done to update FISA at that time 

or not and how we would implement the program. 

Once the program was implemented, Congress was continually 

briefed as to the extent of the surveillance, the types of people that 

were being surveilled, the protections that were being put into the 

process to make sure that American civil liberties were protected, 

the type of information that was being collected, the impact that 

we were having on minimizing the threats to the United States. 

Let us be clear about this. This is not the Bush terrorist surveillance program. This is the Bush/congressional terrorist surveillance 

program. Because congressional leadership was involved in this 

process from the beginning. 

I know when I became chairman of the committee, within the 

first 30 days I got the call to go over to the White House because 

they wanted to make sure that I was fully briefed into the program 

and understood exactly what the programs were and the parameters. And the last question in that meeting, in every meeting after 

that where I was briefed in on the program was very consistent: 

Do you have any concerns? Do you have any questions? Is there 

anything else that we need to do to address and make sure that 

you are comfortable with this program? 

And I have to assume that for the first 3 years while this program was under way, that is exactly what happened. 

And until the New York Times, in an irresponsible process and 

method, revealed the existence of this program, congressional leadership on the Republican and Democrat side, like I said, including 

the current Speaker of the House, was briefed on this program. 

And the reason that they went along with it for 4 years, and the 

parameters and under the ways that they did, was they recognized 

that American civil liberties were protected and they recognized 

that this program was having a significant impact in keeping 

America safe. 

Republican and Democrat leadership bought into this program as 

being necessary, essential, and appropriate to keep America safe. 

With that, I will yield back the balance of my time and submit 

my previous statement or the prepared statement for the record. 

Thank you, Mr. Chairman. 

[The statement of Mr. Hoekstra follows:] 


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The CHAIRMAN. Thank you, Mr. Hoekstra; and that is why it is 

imperative that we get the documents from the administration, so 

that we can verify the things that are true and the things that 

aren’t true about who said what and who did what under that program. 

I do remember that it was a hard issue to get the members of 

this committee fully read into that program. But, be that as it may, 

we will resolve those kinds of issues in due time, and now I want 

to first go down the list of the speaking order. 

We are going to have Mr. Jim Baker, then followed by Mr. Jim 

Dempsey, Ms. Lisa Graves and then Mr. David Rivkin. 

STATEMENTS OF JAMES BAKER, HARVARD LAW SCHOOL; 

JAMES DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY; LISA GRAVES, DEPUTY DIRECTOR, 

CENTER FOR NATIONAL SECURITY STUDIES; AND DAVID 

RIVKIN, PARTNER, BAKER HOSTETLER 

The CHAIRMAN. So now I want to recognize Mr. Jim Baker; and 

I want to alert the members that DOJ has not cleared Mr. Baker’s 

testimony, unfortunately, but we will, however, now have him 

present his oral remarks to the committee. 

So, with that, Mr. Baker, you are recognized. 

STATEMENT OF JAMES BAKER 

Mr. BAKER. Thank you. 

We have not been able to finish the clearance of the written 

statement, but I am able to give an oral statement today. 

Mr. Chairman, members of the committee, thank you for the opportunity to come here today to discuss the Foreign Intelligence 

Surveillance Act and the Protect America Act. The issues that we 

will discuss today are complex and important and the actions that 

you take based upon what we talk about today will have a significant impact on the safety and the freedom of all Americans. 

I would just like to make a brief statement about my background 

to amplify what the chairman said earlier. 

From 1998 until 2007, I was responsible for intelligence operations at the Department of Justice. Working with the very dedicated men and women at the Office of Intelligence Policy and Review, we were responsible for representing the United States before 

the Foreign Intelligence Surveillance Court. In my time at OIPR, 

I reviewed, prepared, supervised the preparation of thousands of 

FISA applications. 

The Department of Justice has specifically approved my testifying here today, but I would like to emphasize that I am appearing here in my personal capacity and that the views I express do 

not necessarily reflect those of the Department of Justice or the administration. 

I would like to focus on three areas in my opening remarks here 

today: 

First, I would like to talk about the productivity of the original 

FISA. FISA was extremely productive over the years. FISA permitted robust collection of foreign intelligence information, including actionable intelligence, and when I use the term ‘‘actionable intelligence’’ I mean information that the Intelligence Community 


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could use to take action to thwart the activities of our adversaries, 

including terrorist groups. We were able to disseminate information gained from FISA widely through the Intelligence Community 

where appropriate and to our foreign partners. We were also able 

to use evidence obtained from FISA in criminal prosecutions with 

the approval of the Attorney General. 

Furthermore, everyone in the system had the comfort of knowing 

that their actions were clearly lawful and that they would not be 

subject to lawsuits or criminal prosecution for having performed in 

conformance with an act of Congress and Federal court order. 

In many ways, it seems to me there is a paradox in that we are 

talking about amending Congress, and Congress amended FISA in 

the Protect America Act, in my view, as a result of the successes 

of FISA itself. 

Because FISA enabled collection of vital and timely foreign intelligence information, including information about the activities of 

overseas terrorists, the Intelligence Community came to regard 

FISA as a critically important collection platform and the Intelligence Community increasingly turned to FISA to obtain important foreign intelligence information. FISA, in my view, expanded 

the understanding by other elements of the Intelligence Community with respect to the value of certain types of collection. That 

then led to a growth in the targeting of foreign operatives, which 

in turn then led to the desire to change the law that we were talking about today and that you were talking about in the summer. 

What I would suggest is, before you decide whether to renew or 

modify FISA again or the Protect America Act, I would recommend 

asking the Intelligence Community for a thorough analysis of their 

assessment of the productivity of the original FISA. I believe that 

the record will show that FISA contributed significantly to our successes against al-Qa’ida and other terrorist groups post 9/11 and 

indeed that FISA worked during wartime. 

That is not to say that it was easy. The very dedicated men and 

women of OIPR worked very long hours under sometimes very adverse conditions to enforce the laws that Congress had enacted at 

the time. In my view, they exemplify what it means to be a dedicated public servant, and I think their actions are worthy of the review of historians in the years to come. 

A few comments about the scope of the original FISA. 

To be clear, as Congress said in the legislative history, no means 

of collection are barred by the original statute. In other words, all 

forms of modern communication were and are subject to collection 

under the original FISA. 

In addition, to clarify a point that has been discussed, FISA has 

never applied to foreign-to-foreign wire or radio communications. 

One of the problems we face today, given modern technology, is 

that you can’t always tell where the parties are at the time of 

interception. 

A frequent question that is also asked is whether FISA was intended to include or exclude foreign communications; and it seems 

to me that the analysis of that question requires a thorough understanding of several factors, including the state of technology in 

1978, what Congress understood about the state of technology at 

that time, the lengthy and complex and somewhat contradictory at 


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times legislative history that exists with respect to the original 

FISA and, finally, a careful examination of the text of the law that 

Congress ultimately enacted. 

With respect to the historical record, I have been looking at some 

documents lately just in a preliminary manner that seemed to indicate that transoceanic communications were made in relatively 

large quantities by both satellites and coaxial cables underneath 

the sea, that both kind of systems were expected to continue in 

service for many years and the use of fiber optics was already anticipated for undersea cables. As I suggest, the legislative history 

and the law can be read in a variety of ways; and it requires a 

careful analysis to decide what the state of play was in 1978. I suggest that if this is an important factor to you, that you task an entity such as the Congressional Research Service to do a thorough 

historical analysis. 

Mr. Chairman, at the end of the day, the real questions regarding whether or not or how to modernize FISA ultimately are not 

technological in nature. It seems to me that the real questions are, 

number one, who should the decision maker be with respect to authorizing collection? That is, who should approve the collection before it can begin? 

Second question is, what level of predication do you want to be 

required? That is, how much paperwork explanation is necessary to 

justify the collection and what standard of review should the decision maker apply? 

A third question is, how particular should the approvals be? In 

other words, how specific must the authorizations be with respect 

to the persons or the facilities at which the collection is directed? 

So, for example, the lower the level of approval and factual predication that is necessary and the less specific the authorizations 

need to be, the more quickly and more easily the Intelligence Community will be able to start collection and the greater the volume 

of collection they will be able to sustain over an extended period 

of time. 

At the end of the day, that is what I believe folks are talking 

about when they say that we need to make the system speedy or 

have a system that is—provides the Intelligence Community with 

the speed and agility necessary to obtain the foreign intelligence 

they need. 

A related question then is, with respect to the decision maker, 

what role should Federal judges play in this process? And as you 

can tell from the debate, this depends upon whether one or both 

of the targets—or the answer to that question depends on whether 

one or both of the targets is in the United States, whether you can 

actually tell where the parties who took the communication are located at the time of interception, and to what extent the government will need to review communications of the target—let me 

back up. 

To what extent does the government need to review or find the 

communications of the target in order to determine where the parties to the communication are located? 

Working closely with the Foreign Intelligence Surveillance Court 

for 10 years, I would be happy to provide the committee with the 


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benefit of my experience in answering that question and any other 

questions that the committee may have today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Mr. Baker. 


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The CHAIRMAN. Now, Mr. Dempsey, you are recognized for your 

opening statement. 

STATEMENT OF JAMES DEMPSEY 

Mr. DEMPSEY. Mr. Chairman, Ranking Member, members of the 

committee, good morning. Thank you for the opportunity to testify 

at this hearing. 

The issue before the committee today has nothing to do with terrorism suspects overseas talking to other people overseas. For a 

long time, there has been agreement among Members of Congress 

of both parties and even in the civil liberties community that a 

court order should not be required for interception of foreign-to-foreign communications. Instead, the debate over the past year has 

been about the rights of American citizens and others inside the 

United States when they are talking to people overseas. 

Of course, the NSA needs speed and agility collecting communications of persons overseas; and many of those persons overseas 

will communicate only with other overseas persons, not affecting 

the rights of Americans at all. 

However, it is also certain that some of those persons overseas 

will communicate with people in the United States. Some percentage, maybe a growing percentage, of NSA’s activities directed at 

persons overseas result in the acquisition and dissemination and 

use of communications to and from the U.S. 

Individuals in the U.S. retain their reasonable expectation of privacy in their communications even when they are communicating 

with people overseas. When the government listens to both ends of 

the communication, it infringes on the privacy rights of Americans. 

The administration would like us to think of this as just two 

issues: targeting people in the U.S., warrant required; targeting 

people overseas, warrant not required. 

I think there is a third category as well, which is when the government is targeting no one particular person at all and we have 

the NSA sifting and sorting and collecting communications to and 

from the United States. 

And minimization means not what we think it might mean. 

Minimization allows the government to use, collect, retain, share, 

and rely upon those communications of U.S. citizens. 

Mr. Chairman, I prepared a much longer memo on minimization 

and, with your permission and consent with the committee, I would 

like to enter that into the record. 

The CHAIRMAN. Without objection. 

[The information follows:] 


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Mr. DEMPSEY. Now how do we normally protect and overcome a 

person’s privacy interest? Of all of the millions of calls to and from 

the United States, how do we ensure that the government’s interception activity is not careless or misguided or based on unreasonable assumptions? 

The answer under our Constitution, normally, is we require a 

court order for that decision. It is the court order that protects and 

overcomes the privacy interests of persons on both ends of the call. 

When a judge issues a court order, she knows she is authorizing 

the government to infringe on the privacy of people on both ends 

of the communication. The warrant approves the interference with 

the privacy of both the target, so to speak, and all other persons 

on that targeted facility or communications channel. 

Even if one party has no fourth amendment rights, the other parties to the communication retain theirs; and it is the court order 

that is necessary to protect the interest of those persons, in this 

case the persons in the United States. 

The Protect America Act is completely without standards in this 

regard. It does not require that the person overseas be suspected 

of being an agent of a foreign power. It doesn’t require that the 

NSA have probable cause or any reasonable suspicion of anything 

except that the person be outside the United States. 

There is no limit on the scope or duration of the surveillance. 

There is no court approval of the minimization rules. There is no 

court supervision of how the calls of Americans are being treated, 

how they are being used. 

We can give the NSA the speed and agility it needs, while at the 

same time protecting rights of Americans. We can do that through 

a two-step process: A blanket order or program order—a basket 

order sometimes it is called—authorizing a program of electronic 

surveillance inside the United States intended to intercept the communications of persons overseas, plus a process for determining 

when individualized orders are necessary because the surveillance 

has shifted or the center of gravity has begun to interfere significantly with the rights of people in the United States. 

The court granting the initial blanket order would not have to 

approve and should not approve the specific targeting decisions. 

But by creating jurisdiction in the court and, by the way, giving the 

companies which we want to compel to cooperate the certainty of 

a court order and then creating the jurisdiction in the court to supervise and to review the periodic reports back to the court about 

how the surveillance is being carried out, I think we can strike the 

right balance here, provide the intelligence agencies with the speed 

and agility that they need and, at the same time, protect the rights 

of the Americans on the American end of these communications. 

Mr. Chairman, I would be happy to answer your questions and 

those of the other members of the committee. There are, obviously, 

a host of issues that we need to go through here. One could dig in 

on the question of exclusivity, the question of immunity for service 

providers, a host of other issues; and I look forward to questions 

on those issues. 

The CHAIRMAN. Thank you. 

[The statement of Mr. Dempsey follows:] 


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The CHAIRMAN. Now Ms. Graves, you are recognized. 

STATEMENT OF LISA GRAVES 

Ms. GRAVES. On behalf of the Center for National Security Studies, I want to thank the chairman and the ranking member for 

having this hearing today, for having the privilege to testify on 

FISA and the PAA. We appreciate very much your scheduling this 

hearing in public so quickly in the aftermath of the temporary revisions that were passed in August. 

We believe that the far-reaching changes written into FISA are 

unconstitutional and they are unnecessary because there are alternatives that provide additional flexibility to the Intelligence Community and increase its effectiveness while preserving Americans’ 

constitutional rights and the checks and balances. But every reasonable alternative was unreasonably rejected and the breadth of 

the PAA is, in a word, breathtaking. We fear that the PAA authorizes too much surveillance among Americans and fails to provide 

the kind of independent, individualized checks that are essential to 

protect civil liberties, and the requirements permitted by the PAA 

will undoubtedly sweep in increasing numbers of American communications with no independent protection for their rights. 

We need clear rules. There needs to be flexibility. But these rules 

are ambiguous and elastic; and history demonstrates that political 

leaders will, specially in times of fear, unilaterally and secretly 

read even narrow authorizations broadly. It is not clear exactly 

what kind of searches, whether electronic or physical, the PAA 

might allow. The kind of who, what, where, when, how often, how 

long required under FISA are missing under the PAA. 

It seems quite clear, however, that the intent was to eliminate 

the search warrant requirement for a substantial number of American communications. 

As Jim said, this is not about foreign-to-foreign communications, 

and I think as Mr. Baker said as well. And, in fact, the administration has taken this position publicly in various settings. But this 

isn’t about the Terrorist Surveillance Program. It is not about alQa’ida calling the U.S. It is not limited to terrorists. It is not limited to weapons of mass destruction proliferators. What it is about 

is getting access to the networks and nodes in the United States 

that involve the international calls and e-mails of Americans and 

foreigners. 

And what it changes dramatically is the access to those calls 

from the fiber optic networks here in the United States without a 

warrant, and doing that required a warrant until last month and 

for the last 30 years. The PAA eliminates that protection. 

I think it is important to remember the history of FISA in this 

regard, and I understand from Mr. Baker there has been a lot of 

talk back and forth about that history. But let me just explore for 

a moment one key point regarding Operation Shamrock. 

As the members of this committee know well, Congress intended 

to prohibit the NSA from restarting Operation Shamrock, which 

was an operation that had been in effect for decades in which the 

NSA obtained the electromagnetic tapes of nearly all telegrams 

going into and out of the United States to analyze them for foreign 


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intelligence information, for information to protect national security. 

When FISA was passed in 1801(f)(2), Congress barred acquisition—not targeting—acquisition of communications off the wires of 

the United States. That protection is eliminated plainly by this 

law. 

Now there are some who will say that the case law before FISA 

was passed was ambiguous or perhaps some courts had not ruled 

that such action was unconstitutional. But let me add a note about 

your power as Congress and your role, in my opinion. 

The courts in this area of national security are particularly weak 

in intervening when the executive branch asserts national security 

interests. Under the political question doctrine or other doctrines, 

they are hesitant to intercede; and the administration urges them 

not to. 

And the executive branch is not the sole organ, is not the best 

protector of individual liberties in this regard. It was Congress’s 

role. It was a necessity for Congress to make this judgment, and 

Congress made a judgment that the Constitution required there to 

be a warrant before the Intelligence Community has access to the 

telecommunications cables going into and out of the United States 

for Americans’ international communications. 

That was a correct judgment then, and it is a correct judgment 

to this day. 

Now the administration claims that there are some times when 

they don’t know who is calling into the United States, whether it 

is a foreigner or not. But it seems to us that the packet technology, 

the technology that makes a call actually go from point A to point 

B, that makes it reach its destination, includes information that 

relatively quickly someone can ascertain who the originator is and 

who the target is or who the caller is and who the recipient is. 

We think that in a large number of communications you can 

know where those communications are going or we wouldn’t receive 

calls or e-mails that we do, which we do most of the time. 

They also assert that there are some number of communications 

where they don’t know where a call is coming from or where an email is going to. But this is not a justification to sweep in all communications where they do know and can know particularly where 

American communications are involved. 

We think that it is critically important that this committee take 

a very hard look at the effect of the PAA, both the intended consequences and the unintended consequences. Because we believe 

this bill allows access to the facilities in the United States without 

any court oversight or meaningful oversight by the courts without 

any individual checks before the fact or after the fact, and basically 

it entrusts the Intelligence Community to take what they choose 

without any independent oversight. 

We fully support your efforts to get full disclosure of all of the 

documents you have requested, and we would request that significant amounts of those be made public to the extent possible. We 

believe it is essential for this committee to have a detailed report 

of the number of Americans who have been subject to surveillance 

without warrants already in the last 45 days. 


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We believe that individualized court orders are essential and also 

you need mandatory oversight. Apparently, optional oversight 

doesn’t work, as you can’t get documents you have been already 

seeking for months. 

We think it is critically important that you obtain the legal opinions and the court orders. And we believe that there has been ambiguity, to say the least, about the description of this program, as 

demonstrated by the statements by Chairman Rockefeller and 

former Ranking Member Harman of this committee. 

And let me just conclude on two points: First, there has been a 

tremendous globalization of American communications over the last 

30 years. Forty million Americans travel abroad every year. A half 

a million Americans work abroad or serve in the military abroad. 

A couple of million Americans live overseas. A quarter of a million 

students study abroad a year. And all of these Americans, and 

Americans here, are in closer contact than ever with friends, family 

and business associates abroad. 

We need adequate and perhaps increased protections for Americans in these circumstances. 

The networks that will be accessed through the blanket orders 

that are presumed under this Act are networks that contain all 

American communications and some foreign communications, all 

American communications. 

Second, Americans’ rights should not be reduced to the same as 

those people without constitutional rights. It shouldn’t go to the 

lowest common denominator of the foreigner on the call. The Americans still retain those rights. And, as we have said before, we believe that minimization is inadequate and constitutionally problematic as a policy matter to protect the privacy of Americans. 

In conclusion, the Center for National Security Studies believes 

that 30 years ago Congress made the right judgment with more information before it than any court has ever had before it about 

what happens when there isn’t a judicial check, and we would ask 

you to restore these protections and appropriate flexibility for the 

protection of our national security and for the protection of our constitutional rights. 

Thank you. 

The CHAIRMAN. Thank you, Ms. Graves. 

[The statement of Ms. Graves follows:] 


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The CHAIRMAN. Now, Mr. Rivkin, you are recognized for your 

opening statement. 

STATEMENT OF DAVID RIVKIN 

Mr. RIVKIN. I want to thank the Chairman and the Ranking 

Member and committee members who invited me to testify at what 

indeed is a very important hearing dealing with the legislation that 

is going to have some consequential and important impact. 

A little bit about the past, since we can’t understand where we 

are now unless we talk about the past. 

Before the August recess, Congress passed a 6-month fix to 

FISA. I happen to believe, at least based upon everything I have 

read in the media—we know that the New York Times and other 

newspapers do have a pretty good access to what is going on in the 

government—that the fix was urgently needed because you indeed 

had a serious truncation of a collection stream largely as a result 

of the fact that FISA, which was heretofore a warrantless surveillance program that we talked about a little bit earlier, was put 

under the FISA jurisdiction in January of this year and within a 

few months there were some orders by the FISA court that impaired important intelligence collection efforts. 

In response to these developments, Congress amended FISA specifically to permit surveillance of international communications of 

overseas targets without a court order, even if that interception occurs within the United States. 

Now we heard a number of my colleagues who are concerned 

about privacy—so am I, for that matter—who fear that this approach may entail the interception of communications by American 

citizens; and indeed that has emerged as the pivotal question in 

the FISA—long-term FISA operation. 

Again, a little bit about the past. I happen to think, in all candor, 

that today’s fears stem from a certain ignorance about the past. I 

happen to believe, with all due respect to Mr. Baker, having looked 

carefully at FISA history that the notion—and let us leave little 

things like the Shamrock program aside—but the notion that I 

think a lot of privacy advocates would have you believe, that Congress enacted FISA to provide a comprehensive regulation of all or 

nearly all surveillance activities, is just plain false. 

If you look at the statute itself, it outlines four fairly narrow scenarios. 

The Congress in 1978 chose to deal with a discrete portion, in my 

opinion—and the facts do show that—of government’s intelligence 

gathering. It really was focused on surveillance inside the United 

States. And, by the way, there is nothing particularly sacred about 

the distinctions made between wire and radio/satellite. Both distinctions were meant as a proxy to basically effectuate congressional desire to deal with surveillance inside the United States conducted in large part to get at Americans. And, let us be honest, 

there were some abuses in this area and not just by the Nixon administration but some of his predecessors, and that is what Congress primarily wanted to get at. 

So FISA generally required the executive branch to obtain judicial orders where the actual surveillance target was physically 

present in the United States. For targets located overseas, court orVerDate Aug 31 2005 05:40 Jan 29, 2008 Jkt 038877 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 E:\HR\OC\A877.XXX A877

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ders were not required before a President could authorize an overseas wiretap with regard to radio communications, were not required whether or not the intercept was here or in the United 

States. 

Now Congress knew that NSA was vacuum cleaning and indeed, 

not in any pejorative sense, as large of a data stream of foreign 

communications using its satellites and listening posts overseas. 

Did not bother anybody. 

Incidentally, apropos of all the points about American-generated 

data, voice information, whatnot, getting commingled in that 

stream, I wouldn’t deny it. But it has always been the case. I would 

kind of ask my colleagues rhetorically, what do you think happened 

in 1980 if we were targeting using the satellites, communications 

of somebody within Russia or China and that person called the 

United States 20 times? The communications, the American portion 

of the communication was not listened to? Did it require a warrant? No, it did not. Not at all. 

We all heard about the revolution of communications and the 

fiber optic systems today. It is indeed true that more of the truly 

global traffic foreign-to-foreign flows from American fiber optic networks. So we do have circumstances today with an individual in 

Pakistan calling someone in Afghanistan has that communication 

routed from American fiber optic systems. 

Incidentally, the parties to that call do not know how their call 

will be routed and are not in the best position, as I understand it— 

I am not an engineer—but not in the best position to determine 

what the path would be. Unlike my colleagues here, instead of 

being horrified by that, I think it is great. It gives NSA wonderful 

opportunities to tap into the global communications traffic that 

ought to be exploited. 

Now let me quickly get to the heart of this matter. 

What is the privacy concern about Americans? The concern is 

what I would call an innocent bystander scenario. We have a bad 

guy overseas calling somebody in the United States. This person is 

not an agent of al-Qa’ida, not a sympathizer. He is just an innocent 

bystander. I would stipulate that it happens. What puzzles me is 

that nobody seems to acknowledge that that scenario is not an unacceptable consequence of any particular FISA regime but it is endemic to all surveillance. 

Warrants result from a process—and my colleagues love warrants—but warrants result from a process that considers the rights 

of a particular target or targets, not those who come into contact 

with them. 

Let me tell you something. Under a Title 3 situation, which is 

the basic wiretap statute, when you get a warrant against a given 

criminal, be it a member of a Colombian mafia or an Italian mafia 

or just a downright criminal, that person comes into contact daily 

with dozens of innocent people. Could be his son’s teacher, could be 

his grocer, his tailor. All of those people get caught in a wireless 

surveillance net, and nobody seems to mind that. 

But the fact that the original decision to target that person is 

driven by a Title 3 warrant does absolutely nothing to protect the 

privacy of those other innocent Americans who, in a lexicon of my 

colleagues, are being spied at. I would rather be spied at in that 


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way in the context of a FISA-driven program because of the minimization requirement. To the best of my knowledge, there are no 

minimization procedures in the criminal justice system. 

So this situation is not new. It is not novel. It was the case before, and it is the case today every day. Nobody has invented a way 

of discerning that a target of surveillance culls an innocent person 

and turning off the tap. That does not exist. 

We heard a lot about law. We heard about the fourth amendment. If one reads the fourth amendment, the very language of the 

fourth amendment suggests that there can be ‘‘surveillance or 

searchings’’—is the language they use—to provide warrants. Otherwise, it makes no sense. Because, in the front part, they talk about 

unreasonable searches being banned; and, in the second part, it 

talks about what is the basic process, what are the predicates of 

a basic warrant. So the fourth amendment only prohibits only unreasonable searches and seizures. 

A lot of people claim that warrantless searches are inherently 

unreasonable, but that ain’t so. That is not what the Constitution 

says. That is not what the case law says. And the Supreme Court 

over years has approved numerous warrantless searches. There is 

a whole line of cases called the ‘‘special need’’ cases. When you get 

stopped driving on Christmas in a sobriety checkpoint, there is no 

warrant, there is no particular suspicion. In fact, apropos of the 

business about targeting, the cop who stops you doesn’t know who 

you are, does not know if you are a woman or man or Member of 

Congress. Has no idea. 

When people search lockers in—students’ lockers in high schools, 

they don’t have any particularized suspicion that there is some contraband in there. And Customs agents searched you long before 

September 11th when you crossed the broader thinking that maybe 

you didn’t declare everything that you bought in Paris. There are 

no warrants. 

Believe me, all of those cases, all of those procedures have been 

challenged; and all have been upheld. And, as a matter of fact, unlike the kind of surveillance we are talking about, the fruits of 

those searches actually get used in criminal prosecutions. 

I would challenge anybody who is stopped at a warrantless sobriety check and found to be legally drunk, I would challenge this person to successfully suppress this information in any prosecution for 

DWI. It is not going to work. 

I am tired of hearing this notion that the Constitution requires 

a warrant in all circumstances. 

Now the Constitution also requires reasonable expectation that 

privacy be protected, not all expectation of privacy. Again, there 

are lots of cases dealing with instances where somebody is growing 

a marijuana plant in fairly plain sight on a windowsill behind a 

picket fence and a police officer walking by, sees it. Well, gee, there 

is no warrant. No, if you are doing something in plain sight, if you 

are not acting in a way that gives rise to a reasonable expectation 

of privacy, it doesn’t work. 

I certainly don’t understand why any intelligent reader of newspapers—you heard about things like Echelon, which I am sure you 

know what it is, but for those who don’t it is a cooperative intelligence program that involves half a dozen of our allies that engage 


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in mobile surveillance. And there are dozens and dozens of intelligence services in charming places like Pakistan and Saudi Arabia. 

So if somebody calls Peshawar and that person does not understand that half a dozen of intelligence services on that side of the 

ocean are going to listen to him or her, that person does not have 

reasonable expectation for privacy; And the law and the Constitution does not require us to humor unreasonable expectations of privacy. 

And as to foreigners, again, forgive me, the notion that if the bad 

guys knew there were two compartments, two regimes, if you did 

purely foreign-to-foreign communication, if you called somebody 

from Pakistan to Afghanistan, you were enrolled in the warrantless 

surveillance, but if you called enough times the United States, you 

had, you know, whatever is the balancing test here. If you brought 

enough Americans into your circle, you would graduate into a warrant-driven program. Any bad guy, unless he is an idiot, would call. 

Every spymaster in the world, every terrorist would call the United 

States enough times to order pizza or something from Borders. 

So everybody would be in a warrant-driven surveillance program 

in a situation where none of those people have any reasonable expectation of privacy 

Now, look, I think we should be honest. Extending the warrant’s 

requirement—against whom are we going to get warrants here? We 

are not going to get warrants against innocent American bystanders. You couldn’t. There would be no predicate for getting warrants. 

Just because you get a call from a bad guy does not make you subject to a warrant. We are talking about getting warrants against 

foreigners. 

I happen to think the FISA court is not a rubber stamp. Nor 

should it be a rubber stamp. Because what would be the value of 

getting it? 

So we are going to get warrants against—we are going to have 

NSA get warrants against foreigners after they—whatever is the 

threshold—called the United States enough. We frequently don’t 

know who they are. We don’t know their age. We don’t know their 

real name. We may have a secondary or tertiary idea that the individual involved may be a cousin of somebody who knows an alQa’ida person. You are not going to get a warrant against such a 

person. I would be ashamed to ask a FISA court for a warrant 

against that person because there would be no basis for it. 

So, basically, what we are going to see is a serious truncation, 

a serious decrease in the number of foreign targets that could be 

serviced. 

Let us be honest. What would that do? It would not be great for 

our national security. Let us be honest. It would definitely diminish 

the number of innocent Americans whose conversations would be 

heard. That is actually the trade-off that some of my privacy focused colleagues are suggesting. 

The best way of making sure that fewer Americans get their 

communications, minimization and everything incidentally intercepted, is there are pure foreigners whom we are going to service 

as targets. Because that is really the reason. If the number of foreigners in that warrantless program is a million and the number 

of foreigners in a warrant-driven program is a million, you still are 


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going to have exactly the same number of Americans whom they 

are going to contact and the same quantity of American information. 

In order to protect a very incidental impact, in my opinion, and 

privacy—and again I don’t have time—but, to me, my privacy is 

violated when something bad happens to me, when I am confronted 

with something. Just because somebody heard my conversation or 

may have heard my conversation doesn’t bother me particularly, 

and I suspect that is true of most Americans. 

At the end of the day, privacy has to be balanced against other 

societal goals and expectations, and the very least I would urge you 

to do is to look at how Americans balance privacy in other spheres. 

Credit card companies know more about us than the NSA does. 

Every time we have an episode like the Virginia Tech shooting 

that are regrettable, there are proposals being floated for dissemination of truly private medical information without judicial involvement where you share this with school administrators and whatnot. And not to minimize what happened at Virginia Tech, but I 

would submit to you that the threat we face from al-Qa’ida is somewhat higher in terms of its consequences of this country than the 

threat of a deranged gunman. 

So we, as a society, can balance liberty/privacy and public safety. 

But let us be consistent. Let us not adopt the position that we 

should balance it one way in the context of external threats involving al-Qa’ida, where we push the pendulum towards the privacy 

side way beyond what it was in 1978. But then it comes to other 

issues like Virginia Tech or drunk driving or something like that, 

you know, we will do it differently because that is a fundamental 

sign of dysfunction and rationality. 

I look forward to the questions. 

Thank you. 

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

[The statement of Mr. Rivkin follows:] 


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The CHAIRMAN. In consultation with the ranking member and 

pursuant to Rule 11–2(j) of the House rules and Rule (d) of the Intelligence Committee’s Rules of Procedure, there will be 30 minutes 

divided equally between the majority and minority staff of questioning of the witness. Following staff questioning, the committee 

will proceed with witness questioning by members under the 5- 

minute rule, exclusive of the ranking member and the chairman. 

So I now yield 15 minutes under this section to Jeremy Bash, 

Chief Counsel of the committee. 

Mr. Bash, you are recognized. 

Mr. BASH. Mr. Baker, you started at the FISA office in 1996, and 

you were the seventh attorney supporting intelligence operations 

there, is that right? 

Mr. BAKER. That is correct. 

Mr. BASH. And you ran the FISA office as counsel for intelligence 

policy for nearly 7 years during the Bush administration. 

Mr. BAKER. Clinton and Bush administrations, that is correct. 

Mr. BASH. Did FISA provide the government with timely, actionable intelligence on terrorist targets after 9/11 during wartime? 

Mr. BAKER. Yes. As I suggested in my oral statement today, we 

obtained quite a bit of actionable foreign intelligence, which to me 

means timely, pursuant to the FISA process. 

Mr. BASH. The FISA office is sometimes characterized or 

caricatured as creaky, outdated, not keeping pace with technology. 

What is your response to that? 

Mr. BAKER. We have also been called a rusty gate, other things 

like that, too. 

I don’t think that was accurate, those types of characterizations. 

As I said in my oral remarks, we were able to construct a process 

that I think at the end of the day provided the Intelligence Community with a lot of actionable intelligence. 

At the same time, you can always do more if you have more resources. And so I think if you go back and look at the history of 

OIPR, we have grown over time, especially since 1996 until I got 

there, certainly until today; and the more folks you have, the more 

you can do. 

Mr. BASH. Some have suggested that the FISA operation is very 

slow to approve surveillance in ‘‘no kidding’’ emergencies. Under 

FISA, the Attorney General can authorize emergency approvals. 

Can you walk us through how fast that can happen? 

Mr. BAKER. Well, I think I have testified in this committee in 

closed session before about the process. We try to make it as quick 

as we possibly can. There are a number of different things going 

on. But let me back up. 

So the Attorney General can authorize—and Attorney General 

here means the Attorney General, the Acting Attorney General, the 

Deputy Attorney General or the Assistant Attorney General for national security. So any one of those folks can authorize an emergency FISA. 

The way it works is—I am sorry—and it goes for 72 hours, and 

if you want to use that material or continue the surveillance or the 

search, you have to go to the FISA court within that—or by that 

time. 


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So we work with the Intelligence Community to understand their 

needs and prioritize their requests. So often what will happen is we 

will work on dual tracks. So the Intelligence Community will notify 

us, hey, there is an emergency that we are working—we can see 

already that we want to do an emergency surveillance, let us say. 

We are working, in particular, let us say, the FBI. We, the FBI, 

are working to put our ducks in a row from a technical basis to implement the surveillance because it takes a little time. And while 

they are working on technical stuff, we are working on the legal 

stuff. The idea is that the trains cross the finish line at the same 

time, and when they are ready to go, we are ready to go, and we 

call the Attorney General, and that is it. 

Mr. BASH. How fast can it happen in an emergency? 

Mr. BAKER. It can happen extremely quickly. We have done it in 

a very short time, minutes sometimes. That is when you have everything ready, everybody has been working together, and they are 

not ready to go with the collection until they tell us. It is done in 

hours. It is done in the same day. It is done as fast as they tell 

us they need it. 

Mr. BASH. Directing your attention to the administration’s bill, 

which has been called the PAA, is there anything in the PAA that 

streamlines the FISA process or the traditional FISA process, anything that would accelerate the approval of FISAs in emergencies? 

Mr. BAKER. I don’t think that it—well, in terms of a traditional 

FISA emergency—I mean, there are emergency provisions built 

within the PAA for the PAA type of collection. For traditional 

emergencies, I don’t see anything in there to do that, no. 

Mr. BASH. In a letter to the chairman last week, September 14th, 

Assistant Attorney General Ken Wainstein, wrote that the language of the PAA does not authorize physical searches of the 

homes or effects of Americans without a court order. Do you agree 

with that reading of the statute? 

Mr. BAKER. Physical searches of the homes or effects of? 

Mr. BASH. Americans without a warrant. 

Mr. BAKER. Well, under the PAA, it is a somewhat complicated 

analysis to get to that question. 

Let me say first that—and I am aware that there has been a letter. I haven’t had time to study it, quite frankly. What I would say 

is a letter from the Assistant Attorney General for national security for the Department, while not an opinion from OLC or an opinion from the Attorney General himself, it is obviously within the 

executive branch, going to carry a lot of weight. So it would seem 

to me that it would be—were the administration to change its view 

on that, it would have to explain that, I guess, to the FISA court 

or—— 

Mr. BASH. In your reading of the statute, do you believe the statute, the plain meaning of the statute, could be read to authorize 

physical searches inside the United States without a warrant? 

Mr. BAKER. It is a complicated analysis; and if you want me to 

walk through it, I can. 

I think the short answer is that if you take an aggressive reading 

of the statute and you presume that you are going to be directing 

your surveillance at persons overseas and yet somehow looking for 

their communications in the United States on communication 


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equipment or related equipment and you can somehow work your 

way through the statute to obtain the assistance of a communication service provider or other person but you have got to go 

through all of these different steps, you can construct an argument 

that the statute allows something like that. 

But again, as I understand it, Mr. Wainstein has said that the 

executive branch is not going to interpret it that way, and that I 

think is binding on the executive branch right now. 

Mr. BASH. Have you been in a situation or a crisis where there 

is a strong push in the executive branch to push the law to its logical limits? 

Mr. BAKER. Over the years, I have been in situations—many 

years—where aggressive and well-meaning attorneys throughout 

the government push aggressive interpretations of the law. 

Mr. BASH. And have you argued matters in the FISA court? 

Mr. BAKER. Many times. 

Mr. BASH. In interpreting FISA, would they look first at the 

plain meaning of the statute or would it first look at a letter from 

Ken Wainstein for guidance on what the statute means? 

Mr. BAKER. Well, I guess if Mr. Wainstein is on record already, 

it is going to look at that in terms of his interpretation. 

Mr. BASH. Does his letter have the force of law in the eyes of the 

court? 

Mr. BAKER. In the eyes of the court, no. It is not an act of Congress. It is not a judicial decision. As I say, it has a binding effect 

on the law as it is implemented or enforced by the executive 

branch. 

Mr. BASH. You were counsel for intelligence policy on 9/11? 

Mr. BAKER. That is correct. I was acting counsel. 

Mr. BASH. And when the White House decided to establish a surveillance program outside of FISA, you were not consulted; is that 

right? 

Mr. BAKER. We are talking about the terrorist surveillance program? Well, the terrorist surveillance program was already—it was 

already in existence when I was informed of it. 

Mr. BASH. So you were informed of it after it was already in existence. 

Mr. BAKER. That is correct. 

Mr. BASH. So when it started, you were not briefed into it? 

Mr. BAKER. Well, it was our—I guess the only thing I can say 

in a hearing today, I was not aware of it. It was already in existence when I became aware of it. 

Mr. BASH. Do you think that those who established the NSA’s 

surveillance program on the grounds that FISA may not have been 

agile or fast enough might have benefited from the perspective of 

the person who had been running FISA operations within the government? 

Mr. BAKER. Well, I obviously had a lot of experience with FISA 

and knew what we were capable of at the time, I guess is the only 

way I can answer that question. 

Mr. BASH. Your former colleague, Jack Goldsmith, head of the 

Office of Counsel Legal, writes in a forthcoming book that Vice 

President Cheney’s Chief of Staff said, quote, we are one bomb 


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away from getting rid of that obnoxious FISA court. Is that quote 

accurate? 

Mr. BAKER. I don’t believe that today I can—that I am in a position to confirm or deny exact quotes about what people said. 

Mr. BASH. Do you have knowledge of the accuracy of that quote, 

but you cannot confirm or deny? Do you have knowledge of the accuracy of that quote? 

Mr. BAKER. I have knowledge of the accuracy of that quote, I 

guess. 

Mr. BASH. Goldsmith also says that the people in the administration treated the FISA the same way they handled the other laws: 

Quote, ‘‘They blew through them in secret based on flimsy legal 

opinions that they guarded closely so that no one would question 

the legal basis for the questions.’’ 

Were you one of those questions whom they guarded those flimsy 

legal opinions from at the outset of the program? 

Mr. BAKER. Well, as I said, the program was already in existence 

when I found out about it. Over time, over time I had access to 

legal opinions with respect to the program. 

Mr. BASH. Those would be the Office of Legal Counsel opinions? 

Mr. BAKER. Well, I think I would like to say I had access to legal 

opinions with respect to the program. 

Mr. BASH. If committee members wanted to understand the administration’s rationale for the program, would it be beneficial for 

the committee members to review those legal opinions? 

Mr. BAKER. Well, I mean, I am obviously in a difficult position 

here. I think the answer is that in order to understand what happened, it is helpful to understand the legal thinking behind it. 

Mr. BASH. Do you know if they had been provided to the Congress? 

Mr. BAKER. My understanding is from the Chairman’s remarks 

earlier that they had not been provided. 

Mr. BASH. Mr. Dempsey, in an interview in the El Paso Times, 

August 22, 2007, the DNI explained the three provisions that he 

sought in the legislation. He said, ‘‘I was after three points: first 

point, no warrant for foreign or overseas.’’ Let me stop there. 

Do both the Democratic leadership bill, H.R. 3356, and the administration bill eliminate the requirement for individual court orders for foreign targets overseas? 

Mr. DEMPSEY. Yes, they both did that. 

Mr. BASH. Second, the DNI says ‘‘liability protection for the private sector,’’ and by that I think he clearly meant lawful compulsion of the private sector. Do both the Democratic leadership bill, 

H.R. 3356, and the administration bill provide for lawful compulsion? 

Mr. DEMPSEY. The PAA doesn’t address the issue at all. The administration has pushed the bill that would provide both prospective immunity, which is in 3356, and the administration bill would 

also retroactively forgive the companies, give them immunity for 

their violation of FISA. 

Mr. BASH. But the PAA and the Democratic leadership both address the issue of compulsion? 


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Mr. DEMPSEY. They both address—well, PAA does it through an 

Attorney General order. The H.R. 3356 does it through a court 

order. 

Mr. BASH. In your view, is a court order a better mechanism for 

compulsion? 

Mr. DEMPSEY. I think it gives the companies greater certainty. 

One of the purposes of the exercise here is to provide clarity and 

certainty. 

Mr. BASH. Further, the DNI says there must be a requirement 

to have a warrant for surveillance against the U.S. person. Do both 

the Democratic leadership bill and the administration bill, provide 

for obtaining the warrant requirement for surveillance against U.S. 

persons? 

Mr. DEMPSEY. Well, the whole question turns on what you mean 

by ‘‘against a U.S. person.’’ The administration bill, the PAA, has 

a very narrow definition of what is surveillance against an American person. The 3356 bill has, I believe, a more balanced and appropriate view of when an individualized warrant should be required, and it has a mechanism for ensuring that those orders are 

sought appropriately. 

Mr. BASH. On balance, given those three criteria that the DNI 

laid out, which bill, the PAA or the Democratic leadership bill, did 

a better job at accomplishing those three objectives? 

Mr. DEMPSEY. I think by far the more balanced bill is what you 

referred to as the Democratic bill, H.R. 3356. 

Mr. BASH. Ms. Graves, let me just close with you. Under the 

PAA, can the executive branch monitor, without a warrant, telephone calls between an American citizen in, say, Florida, talking 

to his sister in Spain? 

Ms. GRAVES. Definitely. 

Mr. BASH. Can the executive branch read, without a warrant, the 

e-mails of a doctor in Chicago with his colleague in Toronto? 

Ms. GRAVES. Yes. 

Mr. BASH. Let me push the hypothetical a bit. Would the PAA 

authorize the government to monitor, without a warrant, all the 

communications between a city, say, in New York and another 

country, say, England without a warrant? 

Ms. GRAVES. All the communications between the U.S. and any 

other country. 

Mr. BASH. Could the PAA authorize physical searches of Americans’ homes? 

Ms. GRAVES. It certainly is ambiguous with respect to the term 

‘‘acquisition,’’ and we do not believe that ambiguity should be allowed to stand. 

Mr. BASH. What about with respect to offices and computer hard 

drives? 

Ms. GRAVES. It certainly seems to reach that. 

Mr. BASH. Medical records, library records or financial records, 

would the PAA authorize warrantless collection of those? 

Ms. GRAVES. Without limitation, they are not specified or carved 

out. 

Mr. BASH. In all those hypotheticals, who would make the determination as to who would be appropriate targets for surveillance? 


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Ms. GRAVES. Solely the executive branch, the Attorney General 

and the Director of National Intelligence. 

Mr. BASH. Would that determination be reviewed by a court? 

Ms. GRAVES. No. 

Mr. BASH. Would that determination be reviewed by Congress? 

Ms. GRAVES. No. 

Mr. BASH. The final question is, would that surveillance ever be 

reported to Congress? 

Ms. GRAVES. No, certainly not, if past history is any indication 

of the level of cooperation or information. 

The CHAIRMAN. Thank you, Mr. Bash. 

For the members, we have three votes that have been called. 

There is about 7 minutes left. The Journal is the first vote; the previous question on the FHA bill is the second vote. That is a 5- 

minute vote. And then the rule on H.R. 1852, the Expanding American Homeownership Act. That is also a 5-minute vote. 

I am going to recess the hearing for members to go vote, then 

welcome back and recognize Mr. Donesa. When we come back, we 

will recognize the minority side for their 15 minutes. With that, we 

recess the hearing for about 20 minutes. 

[Recess.] 

The CHAIRMAN. The committee will please come to order. The 

Ranking Member has requested that he be allowed to control the 

15 minutes of minority staff time. 

With that, I now yield 15 minutes to the Ranking Member, Mr. 

Hoekstra. 

Mr. HOEKSTRA. Thank you, Mr. Chairman. 

I just returned from a trip to Iraq and Afghanistan and talking 

to our intel folks and our military folks. It became clear—and this 

hearing bears it out—if this was a war that was going to be fought 

by the lawyers, we would have won a long time ago. We are fighting a war, and we are lawyering up the process. 

But just a few questions, Mr. Baker. On October 25 of 2001, were 

you briefed in on this program? 

Mr. BAKER. October 25, 2001, I don’t remember. I was briefed in 

the latter part of 2001. I don’t remember—— 

Mr. HOEKSTRA. I am just wondering—October 25, 2001 is when 

Porter Goss, Nancy Pelosi, Graham and Shelby were first briefed 

in and asked to participate and provide their feedback on the program. 

So the second time that they were briefed, November 14, 2001, 

Porter Goss, Nancy Pelosi, Graham and Shelby, would you have 

been read into the program at that point in time? 

Mr. BAKER. I believe it was in that time frame that I was read 

in, somewhere in that time frame, October, November. 

Mr. HOEKSTRA. These folks—I will correct the record—Speaker 

Pelosi was briefed at least four times within the first year of the 

program as this program was being designed. 

In your experience, is it unusual for—maybe you can’t answer it, 

but would it be unusual for the Chair and the Ranking Members 

of the House Intelligence Committees to be briefed on and to consult with the executive branch on national security issues that 

might not be extensively throughout either the Congress or 

throughout the executive branch? 


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Mr. BAKER. My understanding is there are regular briefings for 

the Chair and Ranking, and sometimes staff directors on both 

sides, and that takes place on a fairly regular basis. I have attended some of those. 

Mr. HOEKSTRA. Was that limited exposure in executive branch 

and in Congress? 

Mr. BAKER. There are very few people that attend those. 

Mr. HOEKSTRA. Thank you. You indicated that the Weinstein letter had a lot of merit and would have a lot of impact; is that correct? 

Mr. BAKER. Certainly within the Department of Justice, the executive branch, I think it would carry a lot of weight. As I said, it 

is not an Attorney General opinion or Pelosi opinion. 

Mr. HOEKSTRA. It wasn’t—— 

Mr. BAKER. It is not an act of Congress or a ruling. 

Mr. HOEKSTRA. Right. But the interpretation is there. 

Mr. BAKER. It is binding, certainly, on the Department of Justice 

and on the executive branch. 

Mr. HOEKSTRA. I think I would also like to submit for the record 

the letter that we just got on September 17 from the Office of Director of National Intelligence that responds to a letter, I think, or 

a request that we put in to him from Mr. Joel that talks about a 

number of issues, and he references the Weinstein letter a number 

of times. 

The CHAIRMAN. Without objection. 

[The information follows:] 


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Mr. HOEKSTRA. Thank you, Mr. Chairman. 

In the Weinstein letter, we ought to just be clear in the extent— 

you said you have not had an opportunity to study it or read it, 

correct? 

Mr. BAKER. Correct. 

Mr. HOEKSTRA. Here are parts of what that letter says. 

In his interpretation, the Protect America Act leaves in place 

FISA’s requirement for court orders to conduct electronic surveillance directed at persons in the United States. 

So it does leave in the FISA restrictions. The Protect America 

Act does not authorize so-called domestic wire-tapping without a 

court order. He asked, in the letter it says, again quoting, ‘‘Does 

the act authorize physical searches of domestic mail, without court 

order, of the homes or businesses of foreign intelligence targets located in the United States, of the personal computers or hard 

drives of individuals in the United States? The answer to each of 

these questions is, no, the statute does not authorize these activities.’’ 

It goes on to say, ‘‘It is therefore clear that the act does not authorize physical searches of the homes, mail, computers and personal effects of individuals in the United States, and the executive 

branch will not use it for such purposes.’’ 

I don’t think it came up in the testimony of any of the witnesses, 

but, you know, one of the discussions that has been taking place 

over the last 6 weeks, again, with what I think, people just saying, 

I think it was Mr. Baker, you said people could construct an argument, you know, that would lead people to a different conclusion 

than what Mr. Weinstein says, but I think others have described 

it to us as being a very tortured argument to get there. Obviously 

Weinstein is not making that. But in terms of reverse targeting, 

here is the position of the Department of Justice: ‘‘It would remain 

a violation of FISA. The government cannot and will not use this 

authority to engage in reverse targeting.’’ 

I think your point is right on, because if you take a look at the 

letter from the DNI’s office, is, they reference the judgments by the 

Department of Justice that they are putting in place the proper 

procedures and the rules to make sure that, you know, nobody in 

the Intelligence Community violates the interpretation. 

Now, for the letter to come out from Justice, does Weinstein just 

kind of look at it and write it out? How extensively does this get 

vetted before it comes back to go to Congress? 

Mr. BAKER. I would certainly hope, and it usually was the case 

in the past, that these kinds of letters are vetted very carefully 

within a variety of different offices inside the Department. 

Mr. HOEKSTRA. Yes, it gets extensively reviewed. I think that is 

one of the frustrations sometimes we have with the executive 

branch, that to get anything out of the executive branch, just about 

anybody who tangentially touches it has a say in it before it is completed. 

Mr. BAKER. I would also expect, I am sorry, that it would have 

been vetted through the Intelligence Community as well. 

Mr. HOEKSTRA. Would career staffers have reviewed this document as well, typically? 


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Mr. BAKER. I don’t want to overstate what I know about the 

provenance of this document. I just don’t know. Normally, at least 

when I was there, I was called upon to read a variety of different 

letters and statements over time; statements, people coming up to 

Congress and so on. I have been gone for the past 9 months, 

though, so I don’t want to overstate what I know personally. 

Mr. HOEKSTRA. You also testified that FISA provided timely and 

actual intelligence when requested. You also used some words that, 

you know, ‘‘it takes a little time,’’ I wrote down. I don’t know what 

exactly your words were, but I think it was something like it goes 

really fast when everything is ready. 

What does that mean, ‘‘everything ready’’? 

Mr. BAKER. Well, I have been thinking about that during the 

break, Mr. Hoekstra. As I testified, when you were Chairman, I 

testified about this process at length, and I think it took us a 

while, I think, actually to get through and for me to give a full and 

complete—what I believe at the time was a full and complete explanation of how the emergency process works. 

The emergency process, there are complications to it. I don’t 

mean to sit here today that you push a button, or it is not like click 

‘‘buy now’’ on the Internet. It does take time. 

So the Intelligence Community has to do their investigation, 

make a judgment about what targets they want to pursue. When 

they have done that, and when they have reached a point where 

they realize that they need to do collection immediately, they start 

talking to us. 

Then we work through the legal facts, the legal issues, the factual issues, at the same time that they are dealing with the technical stuff that they need to do. Then when all that is ready and 

they tell us we are ready to go, and they say, ‘‘Yes, we resolved all 

legal issues, we have no problem, call the Attorney General,’’ calling the Attorney General and getting an answer back, that is not 

like super time-intensive, unless it is a complicated case. 

Oftentimes we will go down and prebrief the Attorney General 

what the case is all about, what the request will be, so that when 

the call comes it can happen quickly. 

Mr. HOEKSTRA. I think that is the reason I came back to this is, 

I don’t specifically remember your testimony, but I agree, the Justice Department can put in approval processes that are very quick, 

because you have got a number of people that can approve these 

emergencies. It is a phone call, you can do the prebriefing, and so 

when you finally get the 1- or 2-inch packet of information that the 

Justice Department attorneys have worked on with the Intelligence 

Community, it is kind of like, yes, it is done, you know it is coming 

and those types of things, but there may be extensive work required to get to that point. 

Mr. BAKER. That is what I tried to suggest in my opening remarks, because none of this is easy, none of this is cost-free. There 

are lots of people working all the time, and have been for lots of 

years, on this stuff. We have done everything we can to expedite 

it. These things are posted on a secure Web site. We look at them. 

There is lots of things posted and back and forth on the Intelligence Community, so everybody on both sides, DOJ and the ComVerDate Aug 31 2005 05:40 Jan 29, 2008 Jkt 038877 PO 00000 Frm 00100 Fmt 6633 Sfmt 6602 E:\HR\OC\A877.XXX A877

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munity, worked really, really hard to cut out unnecessary steps 

and unnecessary delays. 

Mr. HOEKSTRA. When you go through that process, the first part 

takes some time. I think that is probably why the current Speaker 

and others in the congressional community, along with the folks in 

the executive branch, decided that with the threat that they faced 

in 2001, the threat that we continually face, speed is an option. 

And it is not always getting all of that information done—is not 

necessarily the most effective way in dealing with the issue. 

I think we have had someone who comes in with the FISA applications, who said that, you know, quite often, in the Intel Community, taking 2 weeks to prepare and get the package ready is not 

unheard of. It is probably more of what the time typically takes. 

Mr. BAKER. My answer to that is we are constantly prioritizing 

our work based on what the Intelligence Community needs. So the 

things that they need first and they tell us they need first we do 

those first. Or they did when I was there. 

Second, as I suggested, it is not unlimited resources, and what 

jumps in front of the line is going to push other things back. So 

sometimes the folks working on those other cases don’t understand 

exactly that other things have jumped ahead. They can get frustrated—we know that—and they can try to deal with it. 

Mr. HOEKSTRA. It can be difficult, because I am assuming you believe that the threat is not just Afghanistan-based, it is not just 

Pakistan-based, it is not just Iraq. There are other places out there. 

We just had the takedown of a threat in Germany; Denmark, a 

year ago. We had the threat out of the U.K. For a lot of these 

streams or threat streams, you don’t necessarily know which one 

is the priority, and there is a lot of uncertainty associated with 

each of these. 

You also testified, and I think you have helped clarify that, exactly how the FISA process worked, because obviously not everybody necessarily agreed that it was—I think you have just said the 

same thing—it is not necessarily fast and agile. 

Are you aware of any comments of General Hayden, who was at 

that time the head of NSA, any comments that he might have 

made about the FISA process and the statements that he would 

have made publicly? 

Mr. BAKER. I can’t remember specifically. I know General Hayden has spoken about these issues. I can’t remember a specific 

statement about that. It wouldn’t surprise me that he commented 

on that though. 

Mr. HOEKSTRA. There are others within the Intelligence Community, when they looked at the threat, when they looked at the kinds 

of folks we are facing in these types of things, that, you know, they 

reached the conclusion that the FISA process wasn’t working. 

I think that is the case that, you know, General Hayden made 

to the political leaders in the executive branch. But that is also the 

argument that he made to the congressional leadership back in 

2001, saying that, you know, with the kind of threat that we have 

out there, it just doesn’t work. I think that is why for 4 years, until 

The New York Times reported the existence of the program, the 

congressional leadership supported this. 


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Mr. Rivkin, during your experience in the executive branch, what 

was your experience with FISA? 

Mr. RIVKIN. Well, Congressman, I was like Peter, I have not been 

involved in individual applications, but I have been involved in the 

White House Counsel’s Office, my days at Justice, the general intelligence policy issues. My view, frankly, is the whole debate about 

how rapidly the system can move is not the biggest problem, because you can give more resources, you are going to have 20 emergency applications going forward. 

The problem is, in my opinion, quite different. The problem is, 

if you are going to go for warrants, you limit dramatically the 

range of circumstances where you wouldn’t even bother getting an 

application going. Because, look, I actually believe that war means 

something real; it is not just it is a good idea to go. 

There is a whole range of scenarios where you cannot get a warrant, because the individual involved is not guilty of anything. Not 

only the person, not a member of al-Qa’ida, or an al-Qa’ida sympathizer, he may just be an independent bystander who happens 

to have information about a person who is a relative of a member 

of al-Qa’ida that you might want to get. 

Remember, in all those emergency situations, you basically have 

to convince the Attorney General that he can attest that warrant— 

or, excuse me, warrant would be attainable. There are many circumstances where you just cannot do it. You are missing, you are 

really focusing, you are drilling down on a portion of the spectrum 

of warrants that can be issued, and you are overlooking the ones 

that cannot. 

Mr. HOEKSTRA. It is very similar to when I first joined the Intelligence Committee and started talking with the folks out in the 

field about the chilling effect of the Deutsche doctrine. I don’t know 

if you are familiar with the Deutsche doctrine, back in 1996, where 

then-President Clinton said we really don’t want to recruit people 

with criminal or human rights violations, and the end result is that 

it had a chilling effect on all types of collections. 

Mr. RIVKIN. That is a perfect analogy. You are arbitrarily, in a 

wholesale fashion, dismissing the whole range of collection, a portion of collection that could have been useful. 

Mr. HOEKSTRA. Thank you. 

The CHAIRMAN. Thank you, Mr. Hoekstra. 

I wanted to make a couple of points. 

Mr. Baker, the letter that Mr. Hoekstra was referring to, that 

with the new Attorney General coming in, could he have that letter 

pulled and substitute something else for you? 

Mr. BAKER. Since it is an interpretation of the Department, 

somebody at Mr. Weinstein’s level or higher is going to have to reverse it. It could be the next Attorney General, it could be anybody, 

but they are going to have to do it. They are going to have to then, 

it seems to me, explain—the new folks would have to explain why 

it is that they are not going along with the interpretation set forth 

in the letter that we are talking about. 

The CHAIRMAN. So it could be pulled? 

Mr. BAKER. I guess, Mr. Chairman, the way I read it is it is binding on the executive branch today. It is not binding for all time. 


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The CHAIRMAN. The other issue that I want to mention briefly, 

and then I want to ask a few questions as it relates to the Ranking 

Member’s comments, is that I just wanted the record to reflect that 

the case that was just made in Germany and Denmark was made 

under the old FISA law, in fact. So if anybody says that FISA 

doesn’t work, I would refer them to the latest case that was done 

by FISA. 

Thank you, Mr. Baker. 

Mr. Dempsey and Ms. Graves, what do you believe are the biggest flaws in the administration’s bill or the PAA? 

Mr. DEMPSEY. I think the biggest flaw is the lack of any reasonable checks and balances. We are trying to develop here a balanced 

system that provides the speed and agility that the intelligence 

agencies need, but at the same time provide some form of oversight. 

Under the Protect America Act, there really is no role for the judicial branch of government. 

There is a court order approving the procedures. It comes after 

the fact. It has no compulsory power, it is only on a clearly erroneous standard. 

There is no after-the-fact review even of how the order is then 

implemented, about how the program is implemented. 

I think that we can do a lot better to preserve the speed and agility to get the intelligence in a timely fashion, but also to make sure 

that the program is being properly implemented and the judicial 

branch under our system has a critical role in that, and that is 

lacking from the Protect America Act. 

Ms. GRAVES. I would add that it is very clear to us that it allows 

warrantless secret searches of American communications without 

any after-the-fact or meaningful review. It eliminates prior judicial 

authorization and subsequent judicial authorization. It requires no 

individualized determination of probable cause for the Americans 

involved. 

It requires no specification of the individuals or the phone lines 

that are to be surveilled. It also may have an impact on the use 

of this material in subsequent criminal prosecutions. It allows access, notwithstanding the statements of Mr. Weinstein, to stored 

communications records, which are the content of your e-mails and 

phone calls, that are stored by Internet search providers and telephone companies, with no court orders or judicial oversight. 

The pen register rules are affected as well, and in that regard 

it allows the government to secretly retain the call record information and other revealing data on thousands or millions of American 

communications, with no judicial oversight to conduct traffic analysis and create maps of the associations and contacts of untold 

numbers of Americans. 

It utterly lacks meaningful, independent oversight either for the 

courts or this body. 

The CHAIRMAN. If we revise the new act, what are the most important provisions for us to modify, Mr. Dempsey and Ms. Graves? 

Mr. DEMPSEY. I think that at the initial stage, the court review 

should be more probing than the review provided in the Protect 

America Act. That is not specific targeting. We are not talking here 

about giving the court, in the first instance, prior control or prior 


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approval over specific selection of targets overseas, but, instead, a 

review of the mechanism by which the government picks and 

chooses among which communications with Americans will be 

intercepted. And, then, secondly, a process of reporting back to the 

court, sort of like a traditional return on service or, like currently 

occurs under FISA, a report back to the court periodically about 

how the program is being implemented so that the court and the 

administration can determine when a particularized order is necessary, if it becomes clear that a particular American or an American is being affected. 

So it is both somewhat more stringent prior review and then ongoing monitoring by the court of the implementation of the program. Both of those are lacking from the PAA. 

Ms. GRAVES. I would suggest that the starting point would be 

H.R. 3356 with additional critical protection for Americans’ communications, including individualized court orders before the fact or 

after the fact, and additional mandatory oversight by Congress, not 

optional, of significant things, including the number of Americans 

affected. 

In addition, I would say that I think it is virtually impossible to 

fix the PAA, because it has utterly supplanted the structure of 

FISA and the definitions of electronic surveillance which are the 

key in FISA to when the warrant requirement kicks in. 

We believe that surveillance must be carried out within the FISA 

structure. There should not be any change to the definition of electronic surveillance. We believe that the carriers must have responsibility for sorting the communications and ensuring that the NSA 

is given access to what they are entitled to. Not everything. Initial 

individualized court authorization is essential to any access to U.S. 

switches. 

We believe that when the government intentionally acquires the 

communications of persons in the U.S., not targeting, intentionally 

acquiring communications of persons in the U.S., that they need to 

have court oversight; and that we believe that there must be limited exceptions, but more flexibility for true emergencies and additional resources that are utterly lacking in the PAA that are represented in previous versions that have been proposed by Democratic members of this committee. 

We also think that it is essential that there be meaningful, mandatory and frequent reports to Congress, and the courts with an IG 

audit required on a regular basis; in particular, with a focus on the 

number of Americans whose communications are being swept in, 

even under a revised regime. 

The CHAIRMAN. Also, Mr. Dempsey and Ms. Graves, do you believe that Congress should pass permanent changes to FISA before 

this current act sunsets next year? 

Mr. DEMPSEY. Mr. Chairman, I really think you are going to 

have to take your time on this. I am not saying that the PAA 

should expire. I think that the Speaker has put you on a very tight 

time frame. 

I think there are a lot of unanswered questions here. I don’t 

think that the PAA, the Protect America Act, is a good starting 

point. I think there are some fundamental flaws in the way the 

statute works, and you have to have a five-page letter from Mr. 


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Wainstein saying what it does and doesn’t mean: use of terms like 

‘‘directed at’’ that aren’t defined, and ‘‘concerning;’’ the whole notion 

of trying to do this by carving something out of the definition of 

‘‘electronic surveillance’’ and then creating a procedure for things 

that are not electronic surveillance. 

It is a very, very confusing statute, I think, to get this right, to 

respond to the technological changes that have occurred, to truly 

meet those core criteria of the DNI, also addressing the security 

problem. Now is this really a huge question: how is this being implemented in the telecommunications networks, and are we creating a certain risk of vulnerability by changes that might be made 

in the communications networks to cooperate with this? 

So there are a lot of issues that the committee is going to have 

to go through here. I am not sure that it is going to be possible to 

put a few little things on the PAA. 

I think that H.R. 3356 is a starting point for a proceeding here. 

At the end of the day, though, it may be that the issues can not 

be fully resolved in this Congress. Honestly, there may have to be 

an extension of the Protect America Act and not a permanent authorization of it to give it more time. 

We still don’t have those court orders, so we are still not really 

sure what is the problem that we are trying to fix. 

The CHAIRMAN. Ms. Graves. 

Ms. GRAVES. I would say that it definitely should not be made 

permanent. The PAA should not be made permanent. We believe 

that the Congress should start by obtaining the information of past 

surveillance activities that many Members of this Congress believe 

are in violation of the law; obtaining legal opinions, not just the letters, of current assistant attorney generals. And as a former deputy 

attorney general, I can certainly tell you that my AAG’s opinions 

didn’t stand in the next administration, and wouldn’t have stood, 

necessarily, for the next AAG. 

But I would say that it is critically important that not only Congress have key information that you are entitled to. If the Department of Justice can do a white paper on its legal views, it can certainly share it OLC opinions, thousands of which have been shared 

with Congress in history, including many legal opinions during the 

Reagan administration, I would point out. 

But beyond that, I would say that it is critically important that 

you and the American people have a certain amount of information 

about what happened and about the effect on Americans, because 

we don’t they think that it is possible to have this debate, and permanently change the structure of FISA, revisit or revise the fundamental determination of Congress about the constitutionality of requiring warrants in this area without that information. 

The CHAIRMAN. Thank you. Finally, what do you two think are 

the essential protections that we should have in any FISA legislation? 

Mr. DEMPSEY. I think the key standard has to be that of checks 

and balances and creating the system of flexibility, speed and agility, but at the same time having all three branches of government 

involved in the oversight of this. Minimization is part of the answer, but only part of the answer. 


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Minimization overseen by a court is far better than minimization 

in the sole discretion of the executive branch. The Protect America 

Act leaves the definition or the drafting of minimization rules and 

their implementation solely to the executive branch. 

I think the key guiding concept here is a workable system of 

checks and balances, starting with some kind of court approval for 

a program, and then followed by court supervision of that program. 

You clearly have to address the immunity issue. I think companies should have immunity for cooperating with lawful surveillance, but I think the statute is meaningless if it can be ignored 

and if people can expect retroactive immunity for activity outside 

of the structure of the legislation. 

Otherwise, what are we doing here? We are passing a law that 

can be ignored. Even if the Protect America Act were completely 

renewed in its splendor, if we then give the companies retroactive 

immunity, a future Attorney General can go outside even of the 

PAA, and the companies might expect that they would be granted 

retroactive immunity for that as well. 

I don’t think it should be ruinous liability. I think that needs to 

be addressed. We need to find some way to make sure there is a 

consequence, but clearly no one wants to put phone companies out 

of business. 

Ms. GRAVES. I would say that in addition to the points I mentioned about the structure of FISA and preserving individual warrants, that clarity is absolutely essential. We have great respect for 

the NSA linguists, analysts and technicians who are doing their job 

every day to keep the country safe. 

But their job is to collect against requirements. When those requirements are ambiguous and overly broad and increase the effect 

on American communications, we need tighter rules, better rules, 

with flexibility but not limitless elasticity, which is what the PAA 

involves. 

We think that the mandatory oversight by the courts, before the 

fact or after the fact, and mandatory reporting to every member of 

this committee—not selectively, not when the administration wants 

something and they need to give you something before they are 

going to testify, but mandatory and regular reporting of this committee—is essential. 

The CHAIRMAN. Very good, thank you. Mr. Hoekstra. 

Mr. HOEKSTRA. Thank you, Mr. Chairman. 

Mr. Rivkin, are you familiar with the case of the Supreme Court, 

the United States v. Verdugo? 

Mr. RIVKIN. Yes. 

Mr. HOEKSTRA. I find it interesting, I just want to pursue this 

a little closer. What I find here is that we have got people who are 

at least alluding to the fact that we ought to be extending fourth 

amendment protections to foreign individuals, non-U.S. citizens 

outside of the United States. What Verdugo says is we think that 

the text of the fourth amendment, its history and our cases, discussing the application of the Constitution to aliens and 

extraterritorials, requires rejection of the respondent’s claim. At 

the time of the search he was a citizen and resident of Mexico, with 

no voluntarily attachment to the United States, and the place 


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searched was located in Mexico. Under these circumstances, the 

fourth amendment has no application. 

It also goes on: Application of the fourth amendment to those circumstances could significantly disrupt the ability of the political 

branches to respond to foreign situations involving our national interest. I think the Supreme Court has pretty clearly identified that. 

If we take a look at where some want to go in applying the protections of the fourth amendment to foreign individuals, I think 

you alluded to this a little bit on targeting. In a criminal case, if 

I have been targeted in the United States, and there is a warrant 

against me, or a warrant enabling me to be surveilled, if my child’s 

teacher calls me today, is that going to be listened to? 

Mr. RIVKIN. Of course. And any number of individuals who call 

you, whom you contact. 

Mr. HOEKSTRA. Earlier today someone said, well, you know, we 

know who is calling, we ought to know. We have the opportunity 

to go through that. 

That is not true. You call a number, and it may be located—you 

are calling from Afghanistan, and you may be calling from what 

you think is a cell phone that at that point in time may be located 

in Germany, but you don’t know who is going to answer it. You 

don’t know who is going to be on the other end of the line, and you 

are not really sure, and you are not going to be positive as to where 

it is going to be located; so it is the same kind of thing. Isn’t that 

correct? 

Mr. RIVKIN. That is absolutely correct. I know a number of people, I have a good friend who used to be a foreign Ambassador. He 

got a mobile phone with area code 202 because enough people remember it. A person has been gone for 8 years and still uses the 

same area code. 

When I get a call from him, and it registers on my mobile phone, 

it says 202, I don’t know if he is calling from Germany or if he is 

in New York. All the notions about you know how to reach the 

phone number, I mean, unless we are in science fiction mode, you 

do know which phone number you are calling. But you have no 

idea, just by looking at that number, where that person is. You 

think frequently you have to look at the conversation’s content to 

realize that person is near Lake Cuomo and not Lake Wobegon. 

Mr. HOEKSTRA. So it is very difficult, it is impossible to design 

a fail-safe system. I am assuming that, you know, they say—for 

those that would argue and say, you know, get a FISA, under a 

FISA, there would be other Americans that would be listened to; 

is that correct? 

Mr. RIVKIN. That is absolutely correct. Quite frankly, again, it is 

difficult. We need to have somewhat more transparency, no pun intended, in this discussion. I suspect, I could be wrong, that the reason people are talking about putting most of the surveillance of 

overseas targets under warrant is because they know it would 

shrink the intelligence stream. 

As I said in my prepared remarks, let’s assume there is a relationship in the number of foreigners you surveil and number of 

Americans; what is the ratio. If you surveil 1 million foreigners, 

you are going to capture a big chunk of American communications. 


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If you surveil one-tenth of that, you would only capture one-tenth 

of a chunk. 

So I think when people who want to protect the privacy of innocent Americans, quote, unquote, are really talking about reducing 

the number of foreign targets, which is a stunning situation, the 

first time in the history of this type of a statute we are talking 

about deliberately limiting the quantity and quality of our collection. That is absolutely stunning. 

We have to be—because, look, if we do not diminish the number 

of foreigners we listen to, the fact that they are being listened to 

under warrant does precious little to protect the privacy of Americans who get caught by virtue of being communicated by that person. 

The privacy of persons is being affected by minimization, by oversight. What difference does it makes to you, Congressman, if you 

get a call from somebody who is being surveilled under warrant 

versus somebody who is not being surveilled under warrant, as 

long as their conversation is being listened to by virtue of the targeting being done by that person? Makes no difference. Wouldn’t 

make any difference to me. 

Mr. HOEKSTRA. The incidental collection of U.S. citizens, did this 

start under the terrorist surveillance program? 

Mr. RIVKIN. Of course not. 

Mr. HOEKSTRA. Did it start, you know, under FISA in 1978, 

1978, 1979 when that originally passed? 

Mr. RIVKIN. No, I don’t think—and as I mentioned in my prepared remarks, Congressman, incidental collection is an inevitable 

attribute of any kind of collection of information of guilty parties. 

Let’s face it, guilty parties don’t only call other guilty parties. Even 

gangsters don’t call only other gangsters. 

If you are going to surveil anybody or listen to anybody, using 

whatever technical means, you are going to capture a lot of innocent people. That goes—in my opinion, dates back to the dawn of 

times when you started surveilling people. 

Mr. HOEKSTRA. The terrorist surveillance program as it is developed, is this legislation that we passed a couple of months ago. 

When Speaker Pelosi is reviewing this process and deciding in 2001 

and in 2002 that this is something that we ought to be going ahead 

with, she is consulting with the administration they would have 

had in 2001. At least under FISA, they would have had 23 years 

of experience in review of the Intelligence Community as to how 

the Intelligence Community dealt with incidental collection of U.S. 

citizens; isn’t that correct? 

Mr. RIVKIN. That is absolutely correct. Not being involved in 

oversight from, certainly, a legislative perspective, it is difficult for 

me to be definitive as to what should be augmented. Let me put 

it generally, because this is an excellent question. We should have 

a serious debate about how to control the consequences of collection. There may be more that needs to be done to minimization. 

There may be need for more oversight. Again, if it were up to me, 

maybe you need to broaden it beyond the gang of eight. 

What is untenable in my opinion is deliberately limiting the collection because you worry about the consequence of collecting something. It is like the collective closing of your eyes and then plugging 


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your ears. That is an absolutely—in the world, when the 9/11 Commission talks about connecting the dots and removing the impediments, that is such a stunning reversal of policy that makes sense. 

Mr. DEMPSEY. Congressman, could I contribute to this? 

Mr. HOEKSTRA. You have had plenty of time, all right. I appreciate your input, but I would like to get the other side of the story 

on the record as we go through it as well today. 

I don’t believe that in the roughly 30 minutes of questioning by 

the other side of the aisle that Mr. Rivkin was ever allowed the opportunity to answer or provide any feedback or any response to 

that. At least I have had the opportunity to question both Mr. 

Baker and Mr. Rivkin on the issues that have been in front of us. 

I am going to go back to Mr. Baker. 

There were discussions earlier debating the legality of the terrorist surveillance program, citing a book by Mr. Goldsmith. The 

Attorney General has publicly stated that the activities previously 

conducted under the terrorist surveillance program have been 

moved under orders of the FISA court. 

In doing so, would Federal judges have found that the activities 

they authorize were lawful? 

Mr. BAKER. I am sorry, Congressman, can you repeat? 

Mr. HOEKSTRA. The Attorney General has publicly stated that 

the activities previously conducted under the terrorist surveillance 

program have been moved under orders of the FISA court. 

And doing so, Federal judges found the activities they authorized 

were lawful. 

Mr. BAKER. I don’t believe I can comment on the substance of the 

orders from January. I guess that is maybe all I can say right now. 

I mean, those haven’t been disclosed, so I don’t believe I can comment on what the court was doing in January. 

Mr. HOEKSTRA. Mr. Chairman, with that, I will yield back my 

time. 

Thank you. 

The CHAIRMAN. Thank you, Mr. Hoekstra. 

I don’t believe I heard anybody say that we wanted to extend 

Fourth Amendment rights to foreigners. I know I didn’t hear any 

of the panelists, but I wanted to now start the Members’ questions. 

We will have a second round, so I would ask all Members to 

please respect the 5-minute rule, and with that, we will start with 

Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman, for having this important 

hearing and to all of the witnesses. I think that this has really 

been enlightening and a very good forum. 

Having said that, Mr. Rivkin, I am not so sure I understand your 

point. What I am taking away from what you said is that privacy 

rights are really not all they are cracked up to be or that some 

should have them or when we say ‘‘all’’ we really don’t mean ‘‘all.’’ 

I don’t know what your succinct point is about the legislation that 

was passed on a hurried basis and that many of us have deep concerns about and so do the American people. 

So I will get back to you so maybe you want to think about a 

couple of sentences that might just kind of knock your position, the 

ball out of the park. I am saying it respectfully. I didn’t get what 

your point was. 


wwoods2 on PRODPC68 with HEARING
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Now I think that this is on the one hand, a somewhat complicated issue, FISA; it is complicated even more because there is 

secrecy involved. So when the American people hear any of us trying to explain not only what the law covers but how it functions 

or did function, they don’t really feel like they are getting all of it. 

But when it comes to our rights, to our liberties and our national 

security, they really insist on both and both they should. 

There isn’t any small reason why both of those are covered in the 

oath that every single one of us takes when we are sworn into the 

Congress, that we swear to uphold the Constitution of the United 

States and to protect our Nation against all enemies, foreign and 

domestic. 

And in my view, this is not a multiple choice test. We are obligated, the duties that we have and the oath that we take, to accomplish both. And I think that FISA is a very good example of this. 

Now what are we struggling over? We seem to be struggling over 

a legal framework, a framework that actually is workable so that 

the Intelligence Community can do what it needs to do, that it has 

the tools that it needs but that we have a legal framework and that 

we have checks and balances. 

In a secret undertaking, it is even that much more important to 

have checks and balances. And I think taking Harry Truman’s 

statements, I think when it comes to that, the buck stops with us. 

Is it any coincidence that the administration has refused to even 

hand over what the ranking member and the chairman of the committee have requested almost ad nauseam and they don’t give it to 

us? 

So how are the American people going to be protected and guaranteed not only of their liberties but also the absolute best on our 

part to secure our Nation? 

So it is in that context that I want to ask the following question: 

Oversight is a word that I think is batted around but not fully appreciated. It really represents a lot. 

So, to Mr. Dempsey and Ms. Graves, and if there is anybody else 

that wants to chime in, all four of you, what information do you 

think the administration should provide to Congress to ensure effective oversight? 

And relative to these new authorities, they are essentially saying, ‘‘trust us’’. And you know what? I am not going to trust anybody with that. I want the information and be able to verify, and 

then I will trust. I am not going to throw trust away and just assume that it is going to be regarded. 

Do you think that there should be an audit which includes a review of all of the directives that are issued pursuant to the new authority? 

We don’t have that now, and I would also like to hear, if we have 

time, about the information that you think that the administration 

is providing to Congress. Do you think it is effective enough today 

to allow us to do the oversight that I spoke of and not this, just 

this little word that seems to be cast about just because we are sitting here? You can’t do oversight unless you get effective information in my view. 

So we want to start with Mr. Dempsey. 


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The CHAIRMAN. Okay. Her time is up. So I will allow one of you 

to answer each one of the questions. I want to tell the Members, 

I have just been informed that we are going to have to give up the 

room at 1:25. So this will probably give us enough time for everybody that is here. But if you will quickly, each one of you, answer 

the questions. 

Mr. DEMPSEY. I think that Congress does need to have access to 

the legal interpretations of the administration, not just to be orally 

briefed on things but to actually see the details about how these 

interpretations are being spelled out. 

On the other hand, though, I don’t think Congress should be in 

a position of receiving information about targeting, and I am not 

sure that Congress should be in the position of receiving a lot of 

information about how the program is being implemented in terms 

of we are intercepting this person or that person. That is why I 

think that the court has to be a part of this. I think that the court 

is a smaller entity. It has, I think, somewhat tighter processes, 

even than Congress has. 

So you need both branches of government: Congress on the law; 

the court on some of these details. 

Ms. GRACE. I would say that you definitely need the legal opinions of the Office of Legal Counsel for the entirety of this program 

in its various iterations from the beginning, whether that is the 

Comey pieces, before or after all those pieces you are entitled to 

them. 

With respect to actual orders of the court, I think you are entitled to see some of those orders. And with regard to orders of the 

magnitude, what we believe was authorized earlier this year, you 

should see the applications because it is possible that the orders 

themselves may be very short and not allow you sufficient information to understand the arguments that were made, whether those 

arguments include the suggestion that FISA is not the exclusive 

means or that the President has the inherent ability to bypass 

FISA. You should know that before passing any permanent 

changes to FISA. 

Mr. RIVKIN. My view is almost exactly the reverse. 

The CHAIRMAN. If you can do it quickly. 

Mr. RIVKIN. I happen to think you have to take the courts as you 

find it. The judiciary role is very narrow. They can deal with warrants. They are certainly not Article III courts. You, on the other 

hand, have enormous opportunity and an obligation to participate 

in the most intrusive oversight. 

If it were to up to me to restore the sort of political sustainability 

of the program, I would be prepared to bring everybody in and 

have you do nothing but review applications on a daily basis as 

long as it is clear that you are doing it in your oversight capacity. 

And if you feel as a Member that something fundamentally 

flawed is being done, if somebody is being surveilled and you happen to believe that this is a witch hunt, you know, you have reason 

to weigh cause and come to a legal position where you can disclose 

a summation of law and survive criminal prosecution. It is a responsible way of doing things. Trying to throw it to the court does 

not work. 


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Briefly on the legal opinions, there is a variety of reasons why 

you do not have any reason to see legal opinions. So long as you 

understand what was done on a practical level, getting legal opinions impinges in a fundamental way on the President’s ability to 

receive confidential legal advice, particularly in the current atmosphere would do nothing more than chill a future President’s ability 

to get legal advice. And it is absolutely not essential to your ability 

to create new regulatory structure. 

Look at the actual behavior, not the legal opinions. 

The CHAIRMAN. Mr. McHugh. 

Ms. ESHOO. Mr. Baker had his hand up. He wanted to respond. 

Mr. MCHUGH. Thank you, Mr. Chairman. 

I will go to Mr. Baker. 

Mr. Baker, we have had in other sessions Assistant General 

Comey, former Attorney General Ashcroft, Gonzalez and others 

have spoken to this, so I want to make sure that I understand your 

testimony. 

When we are dealing with an emergency FISA application, is 

there a different standard that is employed as to the approval of 

that emergency application, one that is different from probable 

cause? Because that has not been my understanding. It is still the 

same standard, correct? 

Mr. BAKER. The same standard applies. 

Mr. MCHUGH. So if you were, whoever was in that acting role, 

you have to see an application that embodies in the basic tenants, 

all of the evidence, all of the record, all of the background that a 

FISA court would expect to see to create or to equal probable cause; 

is that true? 

Mr. BAKER. I wouldn’t agree with that. 

I mean, there is no application at that point in time because the 

emergencies come in and we can make these things—it can be done 

entirely orally. It is not usually done entirely orally. But it can be. 

You could get a phone call from an intelligence agency that makes 

its way through the process to you. You can explain what is going 

on and you call the attorney general. But there usually is paperwork in there somewhere, but it is not usually a full-blown FISA 

application. That is what we work on. 

Mr. MCHUGH. I didn’t use the words ‘‘full-blown FISA application.’’ What I said was it would have to embody much of the background, et cetera. That is what we have been told. Do you disagree 

with that? 

Mr. BAKER. It has to have probable cause. 

Mr. MCHUGH. Thank you. That is really the crux of the question. 

Mr. Rivkin, you made the comment to the ranking member that 

if he were a target under a surveillance order here in the United 

States and his child’s teacher called him, that that conversation 

would be subject to surveillance. 

Would you agree with that, Mr. Baker? 

Mr. BAKER. I thought you were asking Mr. Rivkin something. 

Could you repeat the question? 

Mr. MCHUGH. Yes. The question that the chairman posed or the 

former chairman posed to Mr. Rivkin said that if he, Mr. Hoekstra, 

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izen and his child’s teacher called him, that conversation from that 

teacher would be subject to surveillance. 

Mr. BAKER. It would be intercepted, yes. 

Mr. MCHUGH. Mr. Rivkin, Ms. Graves said in her comments that 

we perhaps should not lend too much deference to the judicial 

record that has traditionally found that the executive has pretty 

broad latitude in issues of foreign intelligence because, as she put 

it, the courts are weak. 

Would you argue the courts are weak or that the court cases 

have been pretty clear and consistent? 

Mr. RIVKIN. I would say two things, Congressman. I think that 

the courts have acted to appropriate constitutional humility in this 

area because the executive has a greet deal of powers relative to 

national security, and the courts’ powers are fairly narrow. But to 

the extent the courts have reached the merits of those issues—and 

probably the best summation of that case law is in the court of 

FISA, court of the review—they were very emphatic that the President, of course, has the power to gather intelligence in this field. 

I would say more so in the time of war. It is really a species of 

battlefield intelligence not just foreign intelligence. 

Mr. MCHUGH. Ms. Graves, one of the key issues here is a matter 

of what we are able to identify as a domestic call and what we are 

not. And you spoke to that in your testimony. 

The phrasing you used was that, quote, it seems to me, end 

quote, I take it meaning your organization, that you ought to be 

able to identify that. 

Testimony has been received previously that while in some cases 

it can be, in any number of cases it can’t be, I am just curious, do 

you have a technical, professional opinion that shows we can’t identify it in all cases because if we can, obviously that takes away a 

big part of the debate. 

Ms. GRAVES. I tried to be very careful about the fact that we believed that in most and many instances that information can be 

ascertained, particularly with regard to phone calls. 

But we do believe that it is important for this committee to hear 

from people with technology expertise beyond the government 

which has a particular perspective, and we also think that, to the 

extent that there are some calls where you don’t know, the assumption shouldn’t be, therefore, you get everything. There should be a 

way to categorize this that deals with the calls you do know and 

those that you don’t having different presumptions and different 

rules with court involvement. We think that is important. 

Mr. MCHUGH. But minimization procedure that deals directly 

with identifiable calls. 

Ms. GRAVES. I am not sure I agree—— 

Mr. MCHUGH. The minute I said that, I thought, she probably 

doesn’t like that phrase. 

Some process by which we accommodate more definitively those 

calls you can’t identify. 

Ms. GRAVES. I would say it is important to have more court oversight, especially because more American communications are in 

this communications stream. 

The CHAIRMAN. Thank you. 

Mr. Tierney. 


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Mr. TIERNEY. Mr. Dempsey, the Ranking Member seems to be laboring over some misconception that somebody is promoting the 

concept of getting a warrant for foreign-to-foreign conversations. 

Have you heard any of the witnesses today mention that that is 

something they put forward? 

Mr. DEMPSEY. No. There has long been agreement that foreignto-foreign should be exempted. I haven’t heard anybody say that 

foreigners should be entitled to Fourth Amendment rights either. 

I am not saying that. 

I think we are talking here about a situation. We used the hypothetical that the ranking member raised or Mr. Rivkin was discussing which was, if you have a target to—if you are targeting a 

person, you are targeting the school teacher and the school teacher 

calls you, should you care if your communications are intercepted? 

Well, if your communications are intercepted without a warrant, 

even if you are not the target, you still have a Fourth Amendment 

right and you have the right to object to that surveillance if the 

evidence is going to be used against you. 

There was an interesting Supreme Court case where the Government was targeting a suspected drug dealer. They searched his 

mother’s home. They weren’t trying to investigate or prosecute the 

mother. 

Well, it was held that even though the drug dealer was the target, his Fourth Amendment rights were not intruded upon. The 

Fourth Amendment rights that were at stake were the rights of the 

person who was being searched. 

And in this case here, where you have two people being searched, 

people on both ends of the communication, it makes a world of difference whether there is a court order or not. The fact that you are 

not the target, if you are being intercepted without a court order, 

the fact that you are not the target makes no difference to the 

Fourth Amendment analysis. Your rights are being violated, and 

you have a right to object. 

Mr. TIERNEY. Do you see a scenario where having the provision 

for a warrant somehow limits the amount of collection that could 

be done? I mean, can’t we both have a process that allows for a 

warrant when it is appropriate and allows for us to get the information when and if we need—when and as we need it? 

Mr. DEMPSEY. The government cannot listen to everything. It is 

selecting. It is collecting less than everything. 

The question here is, what are the standards by which they pick 

and choose? And when the rights of Americans are at stake, there 

should be some judicial oversight of that choice. 

At the end of the day, they will end up collecting however much 

they can process. 

The question is, how is that focused, and how are those decisions 

made? 

Mr. TIERNEY. Both of the statutes were really looking at the 

issue, not that you need a particularized warrant for a particular 

person or a particular place on that. They both sort of said in some 

instances maybe what you have to have is a process. 

And the question really is whether in choosing—when the government is out there choosing—for all of the foreigners from whom 

we are going to collect information here, do we have a process that 


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is reasonably designed to identify and collect the communications 

of those whose communications may have foreign intelligence content. So that is what they are looking at. I think you said something similar to that in your written report. 

So who should decide the reasonableness of that process? 

Shouldn’t it be the courts? If it is not the courts, if we leave that 

to the Director of National Intelligence and to the attorney general, 

don’t we have the fox watching the hen house? 

And isn’t it less likely that any executives—forget which party is 

in office now—are always going to be very lenient to themselves 

and see things as a rational way of what they are doing. Isn’t that 

why we have judicial prior review of the process and of this situation? 

Mr. DEMPSEY. I think that is right. And I think good people 

under pressure cut corners. Good people working under pressure 

make mistakes. And what we try to do in our democratic system 

is to create a set of checks and balances so that you don’t have to 

ascribe any bad will or any negative motive to the DNI and to the 

Attorney General and to the members of the Intelligence Community, but we certainly have seen plenty of evidence of cutting corners in the past 6 years. 

I think that we want to create that set of checks and balances 

and particularly this decision that we are talking about here of all 

of the communications that you collect and process, of all of the 

people that you are going to draw into the net, that process needs 

to be in some structure that has all three branches involved. 

The CHAIRMAN. Thank you. 

Mr. Tiahrt. 

Mr. TIAHRT. Michael Brohm wrote an article that was published 

yesterday across the Nation in several papers. He was referring in 

his article—his article was titled, ‘‘Lawyering the War to Death.’’ 

He references Jack Goldsmith, the Harvard law professor who 

wrote a book called, ‘‘The Terror Presidency.’’ And in that, he said, 

never in the history of the United States had lawyers had such extraordinary influence over war policy than they did after September 11, 2001. 

Mr. Goldsmith does not compliment the administration. In fact, 

he criticizes them in a couple of areas. He called a couple of interrogation techniques deeply flawed. But he does support the detention of unlawful combatants. He supports their confinement in 

Guantanamo. He supports trial by military commissions. He supports the Terrorist Surveillance Program. And he rejects the charge 

that the administration has disregarded the rule of law. He says, 

and I quote, the opposite is true. The administration has been 

strangled by the law. And since September 11th, this war has been 

lawyered to death. 

He cites 1942 when FDR ordered the military commissions to try 

eight Nazi saboteurs who landed on our shores and were apprehended; and within 6 weeks, six of them were executed. He says 

FDR acted in a permissive legal culture that is barely recognizable 

to us today. 

He says the criminalization of warfare is greatly concerned. And 

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terred the Clinton administration from gunning down Osama bin 

Laden. 

Now, this origination of lawyering of the war, he cites it back to 

the 1970s when FISA was written. 

And he cites that, since then, even the CIA is weary of possible 

criminal charges, and it urges its agents to buy insurance against 

possible prosecution. 

As we approach revising FISA, how do we avoid over lawyering 

the war against terrorism? How do we prevent ourselves from 

being bound up in legal morass and paperwork when the real job 

is to protect the country and keep it safe? 

Now I have heard talk, and Mr. Dempsey referred to the legal 

structure shouldn’t be centered on the protection of the targets of 

surveillance but more broadly to any person who might conceivably 

communicate with the target of surveillance. 

How is it that you proposed, Mr. Dempsey, that when a FISA 

order is issued and surveillance is conducted and someone picks up 

the phone call, how do you avoid not being part of that conversation or monitoring that conversation? 

Mr. DEMPSEY. I don’t think what you said there was a quote 

from anything that I wrote. I think that the thing you were talking 

about ‘‘conceivably’’—I don’t think I said that. 

Mr. TIAHRT. I believe it was in your testimony today. 

Mr. DEMPSEY. Anyhow, what I am talking about here is a process 

that would, in fact, allow those communications to be kept and recorded. 

Under the kind of blanket order or programatic order that I proposed and that appears in 3356 as well, the court would authorize 

a program of surveillance under procedures reasonably designed to 

focus on individuals overseas where there might be a foreign intelligence value in their communications. 

Under that order, it is lawful and appropriate and legal to collect 

communications to and from the United States and to keep those 

communications, to use those communications in defense of the Nation. 

At a certain point, though, some of those selection techniques 

and some of those filtering techniques may end up collecting a significant number of communications of Americans. And at that point 

there, the sort of center of gravity of the surveillance activity has 

now shifted so that it implicates significantly two people: the person overseas who has no rights, and the person in the United 

States who retains their rights. And then the question is, what do 

you do going forward from that point? 

I think a process could be designed in which you are not discarding information. People talk about minimization as if it means 

you throw things away. I don’t think the NSA ever throws much 

away, and I don’t think they should, under my proposal, ignore 

valid intelligence, but at a certain point, you have to say, this is 

getting pretty close to home here. This is pretty much affecting an 

individual American, and now we need to go back and see if there 

is really a good reason for—— 

Mr. TIAHRT. What makes you think it is not done that way 

today? 


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Mr. DEMPSEY. Under the PAA, there is no process for that. There 

is no court order, and the standard under the PAA—— 

Mr. TIAHRT. You are speculating that it is not being done that 

way today; that when an American citizen ends up being part of 

an investigation, that there isn’t some additional activity. 

Mr. DEMPSEY. Under the PAA and under the law as it now 

stands, the administration would be required to obtain a court 

order only if they are intentionally targeting a known particular 

person, a U.S. person in the United States. 

Mr. TIAHRT. But it is happening today. 

Mr. DEMPSEY. That is all, but I think the question of intentionally targeting the person, who you are intentionally targeting—— 

Mr. TIAHRT. I guess my time is up. 

Mr. DEMPSEY. I am happy to stay around—— 

Mr. TIAHRT. I believe that is already happening today. And I see 

no concern that you have raised in your study about additional— 

because when somebody is a citizen, he goes a completely different 

channel. There are procedures in place to go completely different 

channels. 

Mr. DEMPSEY. I think we need to talk about this some more, and 

I am happy to do it with you afterwards; but as I understand it, 

under the PAA, not unless the government is intentionally targeting a particular—— 

Mr. TIAHRT. You are advocating if it is an—inadvertently picked 

up a conversation of a citizen in the United States in a surveillance, that there has to be some additional action even though they 

do not pursue it further. 

Mr. DEMPSEY. Under the minimization rules, as I read them, the 

NSA is allowed to retain, analyze and disseminate the communication of that American and to use it for any number of intelligence 

purposes, to feed it into the criminal justice system, but also to use 

it in the intelligence system and so that information about the U.S. 

person—and in some cases, we want it to be used. It is not like we 

want to erect a new wall here. 

As the President says, if al-Qa’ida is talking to somebody in the 

United States, we want to know about it. Absolutely. 

The CHAIRMAN. Ms. Schakowsky. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 

I wanted to talk about some of the specific language—I know it 

has been touched on, the word ‘‘concerning’’ and the word ‘‘acquisition.’’ 

In the letter from Mr. Wainstein, he dismisses the concerns 

about these, and we also heard Mr. Baker testify that there are 

times when the limits are pushed as far as they can go. 

They are dismissed in his letter by saying, first, most of the 

hypotheticals we have heard are inconsistent with the plain language of the Protect America Act and the rest of the FISA statute. 

So I wanted to know, one, if the language, and I am asking Mr. 

Dempsey and Ms. Graves, if the language is as clear as he says, 

and second, we commit that we will not use the statute to undertake intelligence activities that extend beyond the clear purpose of 

the statute. 


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Again, I hear what you are saying—you said, Mr. Baker, about 

the promise, but it also—and its impact, but it also seems like a 

new letter could change that. 

And third, we will apply the statute in full view of congressional 

oversight as we intend to provide Congress with the consistent and 

comprehensive insight into our implementation and use this authority and what your felling is about that since we have not been 

able to get even the basic information about the formulation of this 

law. 

So how much confidence should we have in these assurances? 

Mr. DEMPSEY. One interesting thing to ask the administration, 

and to really put to the test what the PAA is all about, is to ask 

the administration, would it meet their needs if 105B card a program to authorize the acquisition of foreign intelligence by intentionally targeting the communications of a person reasonably believed to be ‘‘overseas’’? That is what they talk about, but that is 

not what it says. 

What is the gap between ‘‘a program of surveillance reasonably 

designed to collect the communications of persons believed to be 

overseas’’ versus ‘‘intelligence information concerning’’? 

Ms. SCHAKOWSKY. So you would suggest that language being 

preferable to—the one that it contains ‘‘concerning’’—that it would 

be clearer. 

Mr. DEMPSEY. Yes, I am not saying that that would be enough, 

but I think that certainly helps put to the test what we are talking 

about here. Are we targeting persons reasonably believed to be—— 

Ms. SCHAKOWSKY. So you are saying that it is not—the plain language isn’t clear enough. 

Mr. DEMPSEY. Absolutely not. We have all kinds of words here 

that appear nowhere else in the statute, and they are undefined. 

Ms. GRAVES. I think I can answer your questions very quickly. 

First of all, the language isn’t clear, and I think you can see that 

if you compare what was announced as the Rockefeller-Reyes proposal that subsequently became the proposal of the chairman and 

Mr. Conyers, they refused to confine their power to electronic surveillance. They insisted upon having acquisition, not electronic surveillance, even as in 3356. They insisted on instituting ‘‘notwithstanding any other law,’’ meaning it blows all of the other laws basically off the books, whether it is a pen register rule, whether it 

is ECPA on stored communication records. They insisted on it not 

being targeted or requiring that the orders that are involved be directed at a particular person or particular facility. 

I think the language is exceedingly broad and is unacceptable. I 

think that the commitment not to interpret it the way the law 

would permit, the plain language, while nice, is not sufficient, especially in the aftermath of Mr. Yoo’s memos, reinterpreting previous 

laws over a period at the Justice Department and certainly not in 

the aftermath—certainly not in the aftermath of assertions that 

you will have full view through congressional oversight when in 

fact you haven’t even received the documents that you have requested. 

And so I would say, notwithstanding the assertions in a letter by 

an assistant attorney general, the law is what matters, and the law 


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is what will stand in the coming years and tailoring that law to the 

particular problem is the responsibility of Congress. 

Ms. SCHAKOWSKY. Do you think that this collection of business 

records of individuals could be authorized by this law? 

Ms. GRAVES. I think that it is very clear the way they described 

‘‘stored records’’ whether records are—whether records as they are 

transmitted or stored, whether they are electronic in form, which 

includes a range of records, business records, phone records. 

I think it is very clear, the language is very clear on that point, 

that they intend to have access to them through orders issued unilaterally by the Government. 

Ms. SCHAKOWSKY. Do you feel comforted by the comment in the 

line in Mr. Wainstein’s letter that says we wish to make very clear 

that we will not use this provision to do so? 

Ms. GRAVES. I believe the paragraph before that talks about not 

using it for library records or financial records. It is not actually 

a global disavowal of that power. In fact, the language itself, the 

Stored Records Communications Act, people who have litigated and 

worked on it know that it reaches very broadly, and I think that 

his declaiming library records in the aftermath of the library controversy with the PATRIOT Act is insufficient. And regardless of 

its assertions, it is the law that matters, not his interpretation of 

it. 

Mr. DEMPSEY. I would be interested in his answer to the question, how did the Government under FISA deal with access to 

stored e-mail? 

Ms. SCHAKOWSKY. I will ask that. 

Mr. BAKER. How did we collect it? 

Ms. SCHAKOWSKY. Did you have access to stored records under 

FISA? Was it interpreted in that way? Stored e-mail. 

Mr. BAKER. You made a reference to the business records. There 

is a business records provision that allows you to obtain a variety 

of materials, any tangible thing, and then there is also FISA. We 

can conduct electronic surveillance and physical search of electronic 

mail. So we would do it depending upon the circumstances. You do 

one or the other. So you could conduct a search for certain types 

of stored e-mail, and you might do something that might be construed as electronic surveillance in other contexts. 

As I said in my testimony, there are no forms of modern communications that we couldn’t get to under the regular FISA. 

Mr. DEMPSEY. I think that what that means then is that access 

to stored e-mail through a physical search is not electronic surveillance. Therefore, it falls under 105B. And so in addition to the 

physical search authority, which requires a court order, 105B authorizes acquisition to stored e-mail without a court order. That is 

a major change. 

Mr. RIVKIN. I was just going to say that leaving aside the question of whether certain stored records can be accessed, to me, if you 

look at the language in its totality, particularly in subsection 3, 

that, and I quote, in laws obtaining the foreign intelligence information from—with the assistance of a communications service provider, custodian or other person who has access to communications, 

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ment and pretend that the super in that building is a custodian is 

silly. 

I am very aggressive when it comes to construing statutes both 

in my private sector days and my government days. But it just 

doesn’t get there. 

We are talking here—if you look at the language in subsection 

2, the acquisition does not actually constitute electronic surveillance; we are talking about electronic surveillance being accomplished by or with the assistance of the very same phone companies. Not bursting into somebody’s place of business. Not going and, 

you know, physically downloading data from somebody’s hard computer drive. That is not how it is written. I don’t see how it can 

be construed any other way. 

Ms. GRAVES. I think it is important to read the rest of that sentence, which is, ‘‘access to communications either as they are transmitted or while they are stored or equipment that is being stored 

or maybe used to transmit or store such communications.’’ ‘‘Such 

communications’’ are your e-mails, your phone calls, whether they 

are about business matters, health matters, intimate conversations 

with your loved ones. Those communications, that is an enormous 

universe of private communications of Americans. 

And I don’t think that saying that you are not directly going to 

go after a library’s records is sufficient. 

And also, in the aftermath of this ‘‘notwithstanding any other 

law’’ language, it is not clear how this affects the National Security 

Letter authorities that have been not adequately supervised. It is 

not clear how it affects other laws. They have carved out another 

opportunity to interpret it in a number of ways, and ‘‘communications’’ alone encompasses almost all of the things we do as we communicate to each other every day on laws or other matters. 

The CHAIRMAN. Mr. Holt. 

Mr. HOLT. Thank you, Mr. Chairman. 

Let me first ask consent to have put in the record a letter to me 

from Debra Jacobs, executive director of the New Jersey Civil Liberties Union, dated August 22nd. 

Let me begin with two rhetorical questions that I am not going 

to ask you to take time to answer. 

Would you say that a characteristic of regimes that we detest 

and condemn around the world is that they spy on their own people? And would you say these regimes often say they are doing so 

to preserve the safety and security of their people? 

I will let those stand as rhetorical questions. 

And rather than trying to pull at pieces of what I think is a seriously flawed piece of legislation, let me go back to the beginning. 

Mr. Dempsey, you say that the Director of National Intelligence 

laid out three basic requirements for FISA legislation or reformed 

FISA legislation. No particularized orders for surveillance designed 

to intercept the communications of foreigners overseas, a court 

order for surveillance of Americans and immunity for service providers. 

Do you believe that FISA as it existed before reformed a month 

or so ago provided that there were no particularized orders required for interception of foreigners’ communications? 


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Mr. DEMPSEY. There was no requirement for foreign-to-foreign. 

On foreign-to-domestic, the law had two different—— 

Mr. HOLT. So for foreign-to-foreign, you think it really required 

no change or even clarification; is that correct? 

Mr. DEMPSEY. A clarification may have been helpful. There 

seemed to be some concern and confusion and a lot of debate about 

it. I always thought that a clarification was desirable. 

Mr. HOLT. Would you say that it required reform or clarification 

for foreign-to-foreign communication, Mr. Baker? 

Mr. BAKER. The difficulty it seemed to me was not saying whether—let me back up. 

One of the toughest problems to deal with, I think, that you have 

to confront is the situations we have talked about a little bit today 

where you cannot tell where the communication is to or from or 

both. That is the hard question here. 

So foreign-to-foreign—— 

Mr. HOLT. So that was unclear you are saying? 

Mr. BAKER. No. I am saying it is clear. I thought it was clear 

with respect to foreign-to-foreign wire or radio communications. I 

think it is more difficult if you move outside those definitions. 

Mr. HOLT. And what kind of language, Mr. Dempsey, what kind 

of language change would you suggest or would you have suggested 

last July to incorporate foreign-to-foreign communications that 

might pass through the U.S.? 

Mr. DEMPSEY. Well, I think there is language in 3356 that is 

quite clear: A court order is not required for the acquisition of contents of any communications of persons located outside of the 

United States even if they pass through the U.S. 

Mr. HOLT. The DNI also says there should be court orders for 

surveillance of Americans. Do you think FISA, as it existed before, 

provided that? 

Mr. DEMPSEY. Yes, clearly. 

Mr. HOLT. And as for immunity for service providers that cooperate with the Government, let me ask, first of all, service providers 

have an obligation or a responsibility to comply with illegal surveillance requests? 

Mr. DEMPSEY. Yes, I think to be fair—— 

Mr. HOLT. I said with illegal service requests. 

Mr. DEMPSEY. That they wanted to have the ability to compel 

them to cooperate and to have immunity for a lawful cooperation, 

for cooperation for lawfully authorized orders. 

Ms. GRAVES. I think I heard your question correctly, and I think 

it is very clear under FISA. FISA was intended to prevent that scenario, prevent compliance and punish compliance with unauthorized orders for surveillance that did not involve either a court or 

an emergency permitted under the statute. 

Mr. HOLT. What I hear you saying, and I am sorry we don’t have 

more time to explore in depth all of these, is that the changes necessary in the FISA that we knew and some people loved and some 

people hated for years with all of its various revisions, needed rather minor modification to provide what the Director of National Intelligence said was needed. 

Now, let me explore a couple of other points. 


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Do you think, Mr. Dempsey, that it is important that any such 

legislation be identified as the exclusive means? 

Mr. DEMPSEY. I think it is critical. It is a critical element. 

Ms. GRAVES. If I could interject. 

I think that making the PAA exclusive would be really not useful 

because it creates such enormous exceptions. Reinforcing the exclusivity of FISA I am ambivalent about because I think it is extremely clear that it is the ‘‘exclusive means’’, and it should have 

been clear for any lawyer at the Justice Department that it was the 

exclusive means. 

Mr. HOLT. So many questions so little time. 

Let me ask, of course, what really concerns me is that, administratively, it is so easy to fall into the pursuit of enemies list or 

chasing hobgoblins with the best of intentions and with the most 

patriotic intentions even and without judicial review of determination of probable cause. I am really concerned about that. Who determines who is the bad guy? 

But my question is, does after-the-fact minimization take the 

place of judicial review? And let me ask Ms. Graves and Mr. 

Dempsey that. 

Ms. GRAVES. I would say that I don’t think it is adequate, and 

I think, as Mr. Dempsey wrote in his testimony, the courts, while 

there has been some discussion of what the courts did hold, one of 

the things they did hold was that minimization itself was not sufficient; and they also held, with respect to Americans, you needed to 

have some individualized determination even if there was some leeway before Congress passed FISA to do so without a warrant. 

And I would say that the minimization procedures are certainly 

not adequate. If we are talking about expanding the reach of the 

NSA into the global communication network in the United States, 

it is utterly inadequate to attach minimization to the PAA. 

Mr. DEMPSEY. I will stand on what the Supreme Court said in 

Katz in 1967. There the police did everything right. They fully 

minimized, they had probable cause, and the court still said that 

was an unconstitutional search because these decisions are not to 

be made solely by the executive branch. 

Mr. HOLT. And that decision has not been nibbled away at over 

the course of years. 

Mr. DEMPSEY. Not that one. 

The CHAIRMAN. Ms. Wilson. 

Mrs. WILSON. Mr. Baker, I had a couple of questions for clarification, if you would. 

When did you leave the Justice Department? In which year? 

Mr. BAKER. I am currently on leave from the Department. I have 

been on leave from the Department since January of this year. I 

am on leave without pay. I am sitting here uncompensated. 

Mrs. WILSON. So you have not been involved in the year 2006 in 

matters relating to the FISA court? 

Mr. DEMPSEY. 2006 I was. 

Mrs. WILSON. January 2007. 

So you were not aware of the problems that have occurred in 

2007 with respect to timeliness of warrants? 

Mr. BAKER. I am aware of the issues that have arisen in 2007 

because I have regular contact with folks at the Department. 


wwoods2 on PRODPC68 with HEARING
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Mrs. WILSON. Would you characterize those in unclassified session? 

Mr. BAKER. I don’t believe I can. 

Mrs. WILSON. But you are aware that problems exist this year 

that did not exist before? 

Mr. BAKER. I am aware of what happened in January, and I am 

aware of what happened subsequently, the event that lead up to 

the Protect America Act. I am not there every day, obviously, but 

I have had discussion with folks there. 

Mrs. WILSON. In some of your answers to previous questions, you 

talked about the timeliness in terms of emergency warrants and 

the reputation of your office as being the rusty gate and so forth. 

You responded that you do those as quick as you possibly can. 

And it can happen extremely quickly to get an emergency warrant. 

Have you ever been involved in an emergency warrant or an 

emergency application for a warrant that has taken more than an 

hour? 

Mr. BAKER. Yes. 

Mrs. WILSON. More than 6 hours? 

Mr. BAKER. I guess the question is, what do you mean it has 

taken more than 6 hours? From the time—what I assess that 

means is from the time that the intelligence agency—— 

Mrs. WILSON. From the time that the intelligence agency says, 

we have got a number, we need to get up on it, to the time they 

can turn on the switch, has it taken more than an hour? 

Mr. BAKER. I can’t answer that because all I can control is the 

time—— 

Mrs. WILSON. From the time you were first informed that one 

would be required to when it was—to when they were able to turn 

on the switch, were there any that took longer than 6 hours? 

Mr. BAKER. I am not trying to be cagey. We did lots of these 

things. We did them all the time. We tried not to over-lawyer the 

situation so we delegated authorities to folks within our organization to take prompt action on these things. 

Did some take more than 6 hours? Certainly possible. I don’t 

know. We didn’t keep track. We didn’t keep statistics on that. 

But what I am reporting to you, I believe, is that, overall, my assessment is that the system was successful. Could the system have 

done more with more resources? Of course. Could the system have 

done more if you didn’t involve all of these lawyers in it? Yes. I 

mean—— 

Mrs. WILSON. I am actually asking a more specific question 

which I think is a legitimate one. 

In your experience, your direct personal experience, did you ever 

have a case where it was more than 6 hours between the time you 

first became aware a warrant, an emergency warrant would be 

needed to when it was signed off on? 

Mr. BAKER. Yes, in that particular question. 

Mrs. WILSON. How about 12 hours? 

Mr. BAKER. I don’t remember. 

Mrs. WILSON. My point here is that time matters. If it was in a 

domestic circumstance—for example, we have Amber Alerts all the 

time in my community. If it was your kid whose life was at stake, 

is 6 hours fast enough? 


wwoods2 on PRODPC68 with HEARING
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Mr. BAKER. That is—6 hours is obviously not fast enough in that 

situation. But the question is—— 

Mrs. WILSON. Imagine a circumstance where it is a FISA warrant that is needed where 6 hours isn’t fast enough. 

Mr. BAKER. You are making the judgements about how you want 

the law constructed. I am trying to give you the benefit of my experience so that you can make an informed judgment. It is up to you 

to decide what the law is going to be. Having said that, we worked 

long and hard to make sure we gave the Intelligence Community 

what it needed when it needed it. 

Mrs. WILSON. Do you understand why there might be frustration? 

Mr. BAKER. I understand completely. I have heard it—you know, 

when you have lawyers involved in between the intelligence 

operatives and the thing that they want, there is going to be tension; there are going to be difficulties. 

My job was to enforce the law that this Congress—not this Congress but that Congress had enacted, and that is what I did in my 

level best to achieve. 

Mrs. WILSON. Let me ask you, Mr. Dempsey, about a Supreme 

Court decision in 1990, United States v. Verdugo. In that case, Justice Rehnquist said that, ‘‘At the time of the search, this particular 

individual was a citizen and resident of Mexico with no voluntary 

attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application. 

He further said that, ‘‘The result of accepting this Mexican individual’s claim would have significant and deleterious consequences 

for the United States in conducting activities beyond its borders. 

The rule would apply not only to law enforcement operations 

abroad but also to other foreign policy operations which might result in searches or seizures. Application of the Fourth Amendment 

to those circumstances could significantly disrupt the ability of the 

political branches to respond to foreign situations involving our national interests.’’ 

And in that case, they determined that the Fourth Amendment, 

that this gentleman had no Fourth Amendment protections. 

Are you familiar with that case? 

Mr. DEMPSEY. Yes, I am. There was no American involved in 

that case. 

Mrs. WILSON. Do you believe that warrants should be required 

for foreigners in foreign countries when we are targeting that person? 

Mr. DEMPSEY. No. Absolutely not. 

Mrs. WILSON. If that Mexican were talking to an American, 

would a warrant have been required? 

Mr. DEMPSEY. Then you have got two people on the conversation 

and you have got rights on the American side. 

Mrs. WILSON. Would a warrant have been required? 

Mr. DEMPSEY. I think if that is an ongoing surveillance that is 

collecting information about the American, yes. 

Mrs. WILSON. They were targeting a Mexican in Mexico. 

Would a warrant have been required? 


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Mr. DEMPSEY. As I said, I don’t think that the targeting question 

is the relevant question here. 

Two people’s interests are at stake. In the Verdugo case, only one 

person’s interest were at stake: a Mexican national in Mexico. He 

had no rights under the Constitution. When you switch to foreignto-domestic, and you are talking about two parties, we have to look 

at both sides of the equation. 

Mrs. WILSON. If a Mafia Don is under electronic surveillance in 

this country and he talks to his son’s teacher, is a warrant required 

for his son’s teacher? 

Mr. DEMPSEY. A warrant is required to intercept those communications. Not on the teacher. 

Mrs. WILSON. Does the son’s teacher have any rights—— 

Mr. DEMPSEY. Absolutely. 

Mrs. WILSON. That their rights under the constitution have been 

violated? 

Mr. DEMPSEY. Well, her rights haven’t been violated because 

there is a court order. On the other hand, if there was no court 

order and the teacher’s conversations were intercepted, that teacher has a constitutional violation, and the Government could not use 

that information against the teacher. 

When the judge issues the order against the Mafia Don, the 

judge is saying there is probable cause to believe that the Mafia 

Don is a criminal and there is probable cause to believe that the 

communications facilities that are going to be the target of the surveillance are being used. 

The CHAIRMAN. Can you wrap it up because we have to leave. 

Mrs. WILSON. If we are lawfully listening to someone overseas for 

a foreign intelligence purpose, how can you tell who they are going 

to call before they call? 

Mr. DEMPSEY. You can’t in advance—— 

Mrs. WILSON. Which means we need a warrant for every conversation. 

Mr. DEMPSEY. No, Congresswoman. Nobody has argued that. Nobody has said that the Government needs to know in advance what 

the person overseas is doing. The whole purpose of the program 

warrant is to allow the Government to be begin monitoring, not 

knowing who the target overseas—— 

Mr. RIVKIN. What Mr. Dempsey, with all due respect, is suggesting, if an individual overseas is communicating enough with 

the United States, in order to continue monitoring that individual’s 

communication, you need to get a warrant against him because you 

surely cannot get a warrant against an innocent American he is 

communicating with. 

Ms. GRAVES. I would disagree. That interpretation is not an accurate characterization of what we have suggested, and, in fact, if 

you look back at the original Rockefeller-Reyes proposal, there was 

a very sensible approach to the circumstance in which an American—you learn subsequently that an American’s communications 

are involved or there are significant communications or significant 

number of communications with an American. Our understanding 

is that the administration tried to deflect that approach by suggesting that if foreigners call the American Airlines, we will have 

to get a warrant for American Airlines. That, I think, is an absurd 


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interpretation of that language, and we think that it is important 

to protect the interest of Americans, and we think the Americans 

in your district and other districts do require that protection. 

Mrs. WILSON. I would agree that we need to protect the civil 

rights and liberties of Americans. We also need to be able to protect this country from terrorists communicating overseas. And I 

hope that in future public discussions and public testimony, we will 

have panels who are much more familiar with how these operations take place. 

Thank you, Mr. Chairman. 

The CHAIRMAN. And with that, let me finish up because we have 

to relinquish the room. I want to thank all of the panelists for their 

expertise and testimony here. As you can see, there are issues that 

we have to work out, but we must work them out because it is in 

our best interest to protect our national security. 

Thank you very much. The hearing is adjourned. 

[Whereupon, at 1:25 p.m., the committee was adjourned.] 

Æ 


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