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53–358 PDF 2009

S. HRG. 110–921 

STRENGTHENING FISA: DOES THE PROTECT AMERICA ACT PROTECT AMERICANS’ CIVIL LIBERTIES AND ENHANCE SECURITY? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 25, 2007 

Serial No. J–110–57 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 186 

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

statement .............................................................................................................. 188 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 190 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Baker, James A., Lecturer on Law, Harvard Law School, Formerly Counsel 

for Intelligence Policy Department of Justice, Washington, D.C. .................... 46 

Cunningham, Bryan, Principal, Morgan & Cunningham, LLC, Greenwood 

Village, Colorado .................................................................................................. 51 

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

San Francisco, California .................................................................................... 49 

McConnell, J. Michael, Director, Office of the National Intelligence, Washington, D.C. ........................................................................................................... 6 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C. ........................................................................................................................ 53

QUESTIONS AND ANSWERS 

Responses of James A. Baker to questions submitted by Senators Specter, 

Leahy, and Kennedy ............................................................................................ 64 

Responses of Bryan Cunningham to questions submitted by Senators Specter 

and Leahy ............................................................................................................. 83 

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

Specter and Kennedy ........................................................................................... 107 

Responses of J. Michael McConnell to questions submitted by Senator Specter 

(Note: Answers to Senators Durbin, Feingold, Kennedy and Schumer were 

not received at the time of printing, November 3, 2009) .................................. 119 

Responses of Suzanne Spaulding to questions submitted by Senator Kennedy . 140 

SUBMISSIONS FOR THE RECORD 

Baker, James A., Lecturer on Law, Harvard Law School, Formerly Counsel 

for Intelligence Policy Department of Justice, Washington, D.C., statement . 149 

Cunningham, Bryan, Principal, Morgan & Cunningham, LLC, Greenwood 

Village, Colorado, statement ............................................................................... 156 

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

San Francisco, California, statement ................................................................. 168 

McConnell, J. Michael, Director, Office of the National Intelligence, Washington, D.C., statement ........................................................................................ 192 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C., statement .................................................................................................... 211 

Sussmann, Michael A., Partner, Perkins Coie LLP, Washington, D.C., statement ...................................................................................................................... 225 

(1) 

STRENGTHENING FISA: DOES THE PROTECT 

AMERICA ACT PROTECT AMERICANS’ CIVIL 

LIBERTIES AND ENHANCE SECURITY? 

TUESDAY, SEPTEMBER 25, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:33 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kennedy, Feinstein, Feingold, Durbin, 

Cardin, Whitehouse, Specter, Hatch, Kyl, Sessions, and Coburn. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Before we start, just so everybody will understand, there seems to be, certainly more than I am 

used to, people having demonstrations in hearings. Now, just so everybody understands, I want everybody to be able to watch this 

hearing. I want everybody to be able to watch it comfortably. If 

people stand up and block the view of others who are here, they 

will be removed. 

If there are any demonstrations, whether they are for or against 

a position I might take, for or against a position Senator Specter 

might take, for or against a position anybody else or the witness 

might take, for or against it, they will be removed. I am sure that 

is not going to be necessary. I am sure everybody is going to treat 

this with the decorum expected. But if somebody is tempted otherwise, the police will be instructed to remove you. 

Now, this Committee holds this hearing today to consider the 

Protect America Act that was passed in haste in early August. 

Congressional leaders went to extraordinary lengths earlier this 

summer to provide the flexibility Director McConnell said was 

needed to fix a legal problem with surveillance of targets overseas. 

I supported a change to FISA, as I have done several times since 

9/11. In fact, I think I have supported some 30 changes to FISA 

since it was written. 

The Rockefeller-Levin legislative proposal that many of us voted 

for would have eliminated the need to get individual probable 

cause determinations for surveillance of overseas targets. That bill 

addressed the concerns that had been raised by an opinion of the 

FISA Court, and it satisfied what the administration said was 

needed in that time of heightened concern. Yet Director McConnell 

2 

and the administration rejected that legislation, and we need to 

find out why. 

I do not know who Director McConnell is referring to in his written testimony when he says that he has ‘‘heard a number of individuals . . . assert that there really was no substantial threat to 

our Nation.’’ I trust that he is not referring to any Senator serving 

on this Committee, but if he did, I hope he would feel free to say 

so. 

Let me be clear: I have talked to virtually every Senator in this 

body. Every single Senator understands the grave threats to our 

Nation. Every single Senator, Republican or Democratic or Independent, wants us to be able to conduct surveillance effectively. 

Every Senator on this Committee voted to give Director McConnell 

the flexibility he said he needed. So I hope we will not hear any 

more irresponsible rhetoric about congressional inquiries risking 

Americans’ safety. We all want Americans to be safe. Our job is to 

protect Americans’ security and Americans’ rights. We also take an 

oath of office, every one of us. 

The Protect America Act provides sweeping new powers to the 

Government to engage in surveillance, without a warrant, of international calls to and from the United States and potentially much 

more. It does this, in the view of many, without providing any 

meaningful check or protection for the privacy and civil liberties of 

the Americans who are on these calls. We are asked to trust that 

the Government will not misuse its authority. When the issue is 

giving significant new powers to Government, ‘‘Just trust us’’ is not 

quite enough. 

Fortunately, those temporary provisions contain a sunset. We 

meet today to consider real issues and concerns with this legislation. Let us not engage in the high-pitched rhetoric that plays on 

people’s fears, because that prevents real progress. 

The FISA Court has played an important role ever since the Foreign Intelligence Surveillance Act was passed. It provides a meaningful check on the actions of our Government as it is engaged in 

surveillance of Americans. Unfortunately, the FISA Court was cut 

out of any meaningful role in overseeing surveillance of Americans 

in the Protect America Act. 

The Rockefeller-Levin measure by contrast would have allowed 

the ‘‘basket’’ surveillance orders that the administration says are 

needed, and Director McConnell says are needed, with no individual probable cause determinations, but it at least had the FISA 

Court issuing those orders to communications carriers after reviewing the administration’s procedures. The Protect America Act, the 

one that was passed, requires U.S. telecommunications carriers to 

assist with surveillance just on the say-so of the Attorney General 

and the Director of National Intelligence. That is a mistake; it is 

an invitation to abuse. 

So I look forward to hearing from Director McConnell on what 

he believes the problems are with a role for the FISA Court in 

issuing orders, and how we can create the necessary authority to 

include the appropriate checks and balances. 

The problem facing our intelligence agencies is targeting communications overseas. We want them to be able to intercept calls between two people overseas with a minimum of difficulty. What 

3 

changes the equation and raises the stakes is that the people may 

be innocent Americans, or they may be talking to innocent people 

here in the United States. International communications include 

those of business people or tourists; they even include the families 

of our troops that are overseas. Now, we can give the Government 

the flexibility it needs to conduct surveillance of foreign targets, 

but we can do it while doing a better job protecting the privacy of 

individual Americans. 

The Protect America Act provides no meaningful check by the 

FISA Court, or by the Congress, for that matter. It does not even 

require the Government to have its own internal procedures for 

protecting the privacy of these Americans. As I said, it may be a 

spouse calling from here to a husband or a wife who is overseas 

protecting America. They may be talking about the children’s 

grades. They may be talking about a difficulty a child may be having with the separation. Now, the alternative bill would have required at least internal procedures and an Inspector General audit, 

and I would like to know why Director McConnell rejected that 

idea. 

In addition, the Protect America Act contains language that appears to go far beyond what the administration said it needed. It 

redefines ‘‘electronic surveillance’’ in a way that has expansive implications, but was not necessary to accomplish the administration’s stated objectives. It has language in many places that, at the 

very least, is inscrutable and could be read to allow much broader 

surveillance than the administration has acknowledged or, for that 

matter, I hope intends. And if this was unintentional, well, then, 

we can fix it. That is one of the things the sunset requires us to 

do, is look at it. If it was not, then we need to evaluate what was 

really intended and why. 

I know the skilled and dedicated employees of our intelligence 

agencies want to protect our country, as every one of us does. But 

if our history has taught us anything, it is that the Government 

cannot and should not be left to police itself when it comes to the 

secret surveillance of Americans. The Founders knew it. The Congress that passed the Foreign Intelligence Surveillance Act knew it. 

So I hope this hearing will help us institute the proper protections 

to safeguard our security and our valued freedoms. 

As I said, we have amended FISA about 30 different times since 

it was enacted. Many of us have served here long enough on this 

Committee to have voted for every one of those changes. 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

The Congress will soon be called upon to decide what to do on 

the application by the administration to have wiretapping surveillance overseas without warrants. We passed legislation in early 

August, at 11:59 at the last minute, relying really, Mr. Director, on 

your advice that there were dire threats to the United States at 

that time. 

And the congressional response to the administration’s request 

really depends largely on trust, and the sequence of these 

4 

warrantless wiretaps has strained that trust relationship because 

the administration put into effect a program for warrantless wiretaps different from the tradition of applying to a judge, showing 

probable cause to get judicial authorization for a wiretap, not disclosed to Congress until the newspapers broke the story in December of 2005, when we were in the middle of the final stages of debate on the PATRIOT Act. 

It delayed the passage of the PATRIOT Act, almost scuttled the 

PATRIOT Act. And my response at that time was that the administration could at least have confided in the Chairman of the Judiciary Committee and the Ranking Member—I was then Chair, Senator Leahy ranking—and similar ranking Chairs on other key 

Committees. But the administration chose not to do so, and that 

kind of a policy I think needs to be revisited. 

Then when you came forward, Mr. Director, in late July and advised the Congress about the threats which you posed, the chatter 

which was being undertaken, it was in reliance on your representations that the legislation was enacted. And it is really vital that we 

not wait until the last minute to make another hasty decision. 

We carefully sunsetted the provisions for warrantless wiretaps 

directed at people overseas for a 6-month period of time. When you 

talk about some public disclosure or some public understanding of 

threats to the Nation, it is obvious we are in a very difficult situation because you cannot—you are the Director of National Intelligence. You cannot say too much. And perhaps much of it has to 

be transmitted to the key committees in a closed session. 

But the business of warrantless wiretaps is a matter of enormous 

public concern, and I believe there has to be more consideration 

given to what can be disclosed publicly, as transparently as possible so the American people know what the intrusion is, they 

know what the reasons are, and we can undertake a balancing test 

to see if it is warranted. That is what I think we have to do. So 

to the extent you are talking about threats, to the maximum extent 

they can be disclosed consistent with national security, I think that 

is advisable. 

When we talk about targeting overseas and targeting foreigners 

overseas, there is a significant difference between targeting people 

in the United States for wiretaps. And I am glad to see the administration finally brought the issue for targeting Americans in the 

United States to the FISA Court. We struggled with many hearings 

in the 109th Congress and finally came to that conclusion. 

When you are targeting overseas, I think there has to be a sharp 

distinction between targeting U.S. citizens overseas and targeting 

others. Right now there is an Executive order which requires the 

Attorney General to find probable cause before a U.S. person is targeted overseas. And my thinking is that the statute ought to be 

modified to put that responsibility in the FISA Court, to establish 

probable cause, which is the equivalent of authority to issue a warrant, if targeting is being directed at U.S. persons. 

The administration has argued that the FISA Court ought to be 

limited just as to procedures, that the administration requires that 

flexibility. I believe we need more of a showing by you, Mr. Director, of the need for that flexibility, and the elimination of the suVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
5 

pervision of the FISA Court has to be justified by real necessity for 

your flexibility. 

And I believe it is not sufficient for the FISA Court to be taking 

a look at procedures every year. I am not sure how often it ought 

to be. Perhaps every few months. But I think when the renewal is 

made to the FISA Court, even as to procedures, there ought to be 

a showing as to what you have accomplished. This invasion of privacy, no matter whose privacy is involved, has produced some results. So we are going to be weighing these factors very carefully. 

One final comment. There has been discussion as to the participation of your counsel in this matter. You called me. I know you 

have discussed it with a number of members of the Committee, and 

Senator Leahy and I have discussed it. And if you have a legal 

issue and need the advice of counsel, my judgment would be that 

you ought to have significant latitude. You are not a lawyer. If you 

need an interjection by legal counsel, I think you ought to be able 

to do that, too. But we will have to make those judgments as the 

specific questions arise. 

You have some lawyers on the panel, including the Chairman, 

myself, Senator Hatch, Senator Kennedy, Senator Feinstein— 

smarter than most of the lawyers on legal issues because of her 

heavy study of the matter. She cites more sections of more codes 

than anybody else on the Committee. And the Senator from Maryland is also an attorney, so we will be watching very closely to 

make sure that you have an adequate opportunity to respond or get 

assistance on the very complex legal issues which are involved 

here. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. And as I told Senator Specter earlier this morning when we discussed this, I have written to Director McConnell and thanked him for his offer of having Government 

witnesses and lawyers here to testify, too. Of course, they have not 

submitted testimony, and so I declined. We are dealing with more 

with factual issues than legal issues. We will be going through 

those, among others, at the time of the Attorney General nomination hearing. 

I also explained to Senator Specter—and I should explain to you, 

Admiral—that should you have a legal question and you wish to 

consult, we have several of the best lawyers in the city behind you. 

Should you wish to consult, feel free to do so. That time that you 

take to do that will not come out of either your time or the Senator’s time asking you the question. Just so you know that. 

Of course, also, as I have explained for years and years on various committees I have chaired, I do not play ‘‘gotcha.’’ The record 

will stay open for a certain period of time to allow you a chance 

to look through it and make any corrections you wish. 

Senator HATCH. Mr. Chairman. 

Mr. Chairman, if there are technical legal questions, I think the 

Director is not an attorney and he ought to be able to call on his 

people to be able to help us with those direct legal questions. So 

I just— 

Chairman LEAHY. Well, we will have plenty of time for them to 

do that, and should the administration want them to come up and 

testify on the legal thing, we will try to find a time so they can do 

6 

just that, in the normal forum with their testimony provided to you 

and me and everybody else on the Committee ahead of time. 

Senator HATCH. My only point, Mr. Chairman, is that some of us 

would benefit from perhaps some legal answers from Government 

officials, because we will get some from other witnesses, and we 

ought to at least be able to judge that. 

Chairman LEAHY. If the administration wishes to have them 

come up and be sworn and testify, we can probably arrange that. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman LEAHY. Please stand and raise your right hand. Do 

you solemnly swear that the testimony you will give in this matter 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. MCCONNELL. I do. 

Chairman LEAHY. Thank you. Director McConnell, we have your 

full statement, and, of course, it will be made part of the record so 

that we can get into questions. Would you please summarize it as 

you see fit and we can get into questions. 

STATEMENT OF J. MICHAEL MCCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, WASHINGTON, D.C. 

Mr. MCCONNELL. Thank you, Chairman Leahy, Ranking Member 

Specter, and other members of the Committee. Thank you for inviting me to appear here today. I appreciate the opportunity to discuss the 2007 Protect America Act and the need for lasting modernization of the Foreign Intelligence Surveillance Act that we will 

refer to in the hearing, I am sure, as ‘‘FISA.’’ 

Before I begin, I need to note that some of the specifics that support my testimony cannot be discussed in open session. I understand, and I am sensitive to the fact, that FISA and the Protect 

America Act and the types of activities that these laws govern are 

of significant interest to Congress and to the public. 

And for that reason, I will be as open as possible, but much of 

this discussion comes with some degree of risk. This is because 

open discussion of specific foreign intelligence collection capabilities 

causes us to lose those very same capabilities. Therefore, on certain 

specific issues, I would be happy to discuss with members in a classified setting. 

I have previously appeared before the Intelligence Committee in 

closed sessions, which includes crossover members for this Committee. I would be happy to appear before this Committee in closed 

session as well so that you may avail yourselves of any additional 

information that would be helpful in considering these very important issues. 

Chairman LEAHY. If there are things that we should be doing in 

closed session, I will confer with Senator Specter, and I am sure 

he and I can arrange such a closed session. 

Mr. MCCONNELL. Thank you, sir. 

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

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

intelligence community, it is not only my desire, it is my duty to 

encourage changes to policies and procedures, and where needed, 

legislation, to improve our ability to provide warning of terrorist or 

7 

other threats to the country. On taking up this post, it became 

clear to me that our foreign intelligence collection capabilities were 

being degraded. 

I had learned that collection using the authorities provided by 

FISA continued to be not only instrumental but vital in protecting 

the Nation. However, due to changes in technology, the wording of 

the law as it was passed in 1978 was actually preventing us from 

collecting foreign intelligence information. 

I asked what we could do to correct the problem, and I learned 

that a number of my colleagues had already been working on the 

issue. In fact, in July of 2006, the Director of the NSA, General 

Keith Alexander, and the Director of CIA, General Mike Hayden, 

testified before this Committee regarding proposals to change and 

update FISA. That 2006 testimony contained significant information and insight into our capabilities and the need for changes to 

wording in the law. 

I also learned that Members of Congress in both chambers and 

both sides of the aisle, to include this Committee, had proposed legislation to modernize FISA in 2006. A bill passed the House last 

year, but it was not taken up by the Senate. Therefore, the dialog 

on FISA has been ongoing for some time. It has been a constructive 

dialog, and I hope it continues in furtherance of serving the Nation 

to protect our citizens, both their safety and their civil liberties. 

None of us wants a repeat of the 9/11 attacks, even though al 

Qaeda has stated their intention to conduct such attacks. 

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

for conducting electronic surveillance and physical search for foreign intelligence purposes. When passed in 1978, FISA was carefully crafted to balance the Nation’s need to collect foreign intelligence information with the need for the protection of civil liberties 

and privacy rights of our citizens. There were abuses of civil liberties from the 1940’s through the 1970’s that were galvanized by 

the abuses of Watergate that led to the action that caused the Congress to craft and pass the legislation that was signed by President 

Carter in 1978. 

This 1978 law created a special court, the Foreign Intelligence 

Surveillance Court, to provide judicial review of the process. The 

Court’s 11 members devote a considerable amount of time and effort to FISA matters, while at the same time fulfilling their district 

court responsibilities, and we are indeed grateful for their service. 

FISA is a very complex statute. It has a number of substantial 

requirements. Detailed applications contain extensive and factual 

information and require approval by several high-ranking officials 

in the executive branch before going to the court. The applications 

are carefully prepared, subject to multiple layers of review for legal 

and factual sufficiency to ensure that they meet the probable cause 

standard to the Court. 

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

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

community to conduct foreign intelligence while protecting American civil liberties. 

Why did we need the changes that the Congress passed this past 

August? FISA’s definition of ‘‘electronic surveillance’’ simply did not 

keep pace with technology and therein is the issue. The definition 

8 

of ‘‘electronic surveillance’’ from the 1978 law did not keep pace 

with technology. Let me explain what I mean. 

FISA was enacted before cell phones, before e-mail, and before 

the Internet. The Internet was not even envisioned in 1978. Today 

it is a tool used by hundreds of millions of people, to include terrorists for planning, training, and coordination of their operations. 

When the law was passed in 1978, almost all calls were on a 

wire in the United States, and almost all international calls were 

in the air, or known as ‘‘wireless’’ communications. Therefore, FISA 

was written in 1978 to distinguish between collection on a wire and 

collection out of the air. 

Today the situation is completely reversed. Most international 

communications are on a wire, fiber optics, and local calls are in 

the air. FISA originally placed a premium on the location of the 

collection, and that is a very important issue for us to consider. 

Therefore, collection against a foreign target located overseas, because of the wording in the law, from a wire located in the United 

States, required us to have probable cause standards to seek a warrant from the FISA Court to collect against terrorists located overseas. 

Chairman LEAHY. But, Director, you have emphasized over and 

over again the 1978 law. It has been amended about 30 times since 

then, around 7 or 8 times at the request of the administration with 

which you serve. And I think it is somewhat disingenuous to keep 

referring to the fact that we were dealing with a 1978 law. It has 

been dramatically changed since that time. 

Now, you have testified a number of times over the past few 

weeks. I know that it is difficult. We all appreciate the time you 

have taken. But just as I have concerns with you talking as though 

we are dealing with a 1978 law, I have concerns about some of the 

statements you made in those hearings. 

For example, 2 weeks ago in Senate testimony, you claimed that 

information obtained as a result of the Protect America Act, the 

latest change in the FISA Act, was important to the investigation 

of the recent German terror plot. You said it several times. But 

later, after press reports and Members of Congress questioning it, 

you issued a statement saying your testimony was not true. The information you spoke of was obtained before the latest law was enacted. It was obtained under the old FISA authority. 

In the same hearing, you warned that if we would lose the authority in the new legislation, you would lose 50 percent of our ability to track, understand, and know about these terrorists. A week 

later, when you testified before the House Judiciary Committee, 

that 50 percent had moved to two-thirds of our capability. And in 

that same hearing, you said you were concerned that losing the authority would shut us down. So you went from 50 percent to 100 

percent in no time whatsoever. 

Now, I am just wondering why did you testify to something that 

was false and give a misleading impression of the benefits of the 

legislation. Did you check with anyone before making those claims? 

Mr. MCCONNELL. Sir, when I was asked about FISA and the situation in Germany, the question that I understood was referring 

to FISA. This panel is making a differentiation between FISA and 

the Protect America Act. In my mind, that is all one act passed in 

9 

1978, as you have mentioned several times, updated any number 

of times. In my view, it was updated in August as the latest review. 

So the question I understood was did FISA make a difference, 

and FISA was absolutely vital for us to understand that threat and 

to assist in what happened in terms of removing terrorists whose 

intent was to kill Americans and/or Germans in Germany. 

Chairman LEAHY. And I appreciate your explanation of what did 

appear to be misleading to most people. But, you know, if a wellintentioned person like can make such mistakes, you can understand why we need to have some checks on this so that mistakes 

are not made. 

We all believe that conducting surveillance on terrorism is vital. 

I voted to give you greater flexibility, as did everybody on this 

Committee, when that matter came before us in early August. 

Some of us did not vote for the Protect America Act, but we voted 

for the Rockefeller-Levin amendment, the alternative. It would 

have given the same flexibility, but it would have had some oversight by the Court and more requirements for the executive branch 

to protect privacy. 

When you testified in the past few weeks-and it sounded like you 

were saying that here—you always warned about the dangers of 

going back to the old FISA process with individual probable cause 

determinations. Well, let us be honest. Neither the RockefellerLevin bill nor the similar House alterative would have required 

that. I discussed this with you many times. I said I am not asking 

for that. Nobody was asking for that. 

So I do not know why we keep hearing about legislation that few, 

if any, members have proposed or supported. I would like to keep 

our focus on the Protect America Act and those parts that concern 

this Committee. 

So assume that we do not propose going back to individual probable cause determinations by the FISA Court, as you seem to 

imply, and nobody—certainly I have never heard it from any Senator for overseas targets and not U.S. persons. If we are not going 

to back to individual probable cause determinations, wouldn’t that 

help you? 

Mr. MCCONNELL. That is exactly the point, Senator. Not having 

to be required to do probable cause justification to conduct surveillance against the known terrorist overseas is the whole point. 

That— 

Chairman LEAHY. But nobody has suggested that. We talk about 

programmatic; even with the emergency time, you have after-thefact determination. What I worry about when I hear you testify, 

when I hear the President give his Saturday morning speech, you 

always talk about this 1978 bill. I mean, that is like saying that 

if you go out with your brand new car and say, Boy, I remember 

the problems I had in my 1978 car. It is not the same one. It may 

be the same make of car, but it is a big difference. 

Mr. MCCONNELL. Senator, all I can respond is to say I wish some 

of those 30 changes that you are mentioning had, in fact, addressed 

this issue. Now, this is not a new issue to this Committee. 

Chairman LEAHY. But the Rockefeller-Levin did not require individual probable cause. 

10 

Senator HATCH. Mr. Chairman, can we let him finish his statement? I mean, I would really like to hear— 

Chairman LEAHY. Would you let the Chairman finish his question, please? 

Senator HATCH. Well, I thought we were going to let him finish 

his statement. 

Chairman LEAHY. We will give you plenty of time to— 

Senator HATCH. Well, let the man finish his statement. 

Chairman LEAHY.—give the administration’s position, but the 

Rockefeller-Levin did not require that individual probable cause, 

did it? 

Mr. MCCONNELL. Sir, the issue with the Rockefeller—Levin bill 

is—as I tried to highlight in my statement, this is an extremely, 

extremely complex bill. The issue was we exchanged between us, 

between the Hill and the administration, seven different drafts. I 

was provided a copy of that draft after debate had started on the 

floor of the Senate. Now, when I had a few minutes to look at the 

draft, what I looked to see was did it introduce things that would 

cause a limitation on the flexibility and effectiveness of this community to protect the country. And it did. 

The specific question you are asking about, quite frankly I have 

not found a member on the Hill that disagrees with what you are 

saying. I agree with it. You agree with it. The issue is we have to 

get it in legislation in a way that allows us to carry out our mission. 

Now, what happened in that bill, the draft of that bill, introduced 

uncertainty. It also addressed minimization and it addressed the 

issue called ‘‘reverse targeting.’’ And when you examine the full intent of that wording, what happens is it puts us in an untenable 

position of not having the flexibility that we need. 

Chairman LEAHY. You know, it is interesting. I was in many of 

those meetings with you and the White House when we talked 

about it, when we talked about what we were going to do. None 

of the concerns that you are talking about now were raised at that 

time. They were suddenly raised when it was on the floor, and that 

is when it creates the concern. 

Part of that we will have to go into classified session to talk 

about, but you can understand why people worry about this. We 

have a respected lawyer in Vermont, Robert Ginsburg. He and I 

served as prosecutors at the same time. He is representing a client 

being held in Guantanamo Bay. He is worried that his calls regarding his client are being monitored by the Government. He makes 

calls overseas, including to Afghanistan, on behalf of his client. 

Now, I am not going to ask you whether his telephone is being 

tapped because I would not expect you to answer that. But you can 

see why people worry, and I think whether it was Mr. Ginsburg, 

whom I happen to know, or anybody else, they would feel considerably more confident if they thought that the FISA Court at least 

had some oversight here. 

My time is up, and I will yield to—but you and I should probably 

discuss that matter in a classified— 

Mr. MCCONNELL. Sir, if I could respond, let me go back to our 

discussion. You and I had a one-on-one in a classified context. As 

I recall, it went for about an hour and a half. 

11 

Chairman LEAHY. And I am trying to avoid going into the specifics of what we did. 

Mr. MCCONNELL. And I do not intend to go there, but I need to 

make three points for this Committee so that everybody understands. 

When I entered back into active duty service and looked at this 

issue, it appeared to me we had to make some fundamental 

changes. Now, all the changes to FISA previously notwithstanding, 

the three points I tried to make—and I gathered the lawyers 

around me to say I do not know exactly the wording how we do 

this, but here are the three points: 

We are disadvantaged because we are currently being required 

to have a warrant against a foreign target located overseas and it 

inhibits our capability to do our job. So we have got to fix that, 

whatever the proper wording is. 

The second is we have to have a way to compel the private sector 

to assist us and to provide a reasonable level of liability protection 

for them. 

So first point, no warrant against a foreign terrorist overseas. 

Compel the private sector to help us. 

And the third point—and this is very important. It is very important to me; it is very important to members of this Committee. We 

should be required—we should be required in all cases to have a 

warrant anytime there is surveillance of a U.S. person located in 

the United States. I think that was the intent of the 1978 law. 

That is what was included in the Protect America Act passed in 

August. That is where we need to be, and anything else we do to 

that, we have to examine what the words mean to our effectiveness. And so that is where we are with regard to examining this 

law. 

So my point to the administration and the Congress is we need 

those three points, and we need to have them passed in a way that 

is effective for us to carry out our mission. 

Chairman LEAHY. Well, I might say parenthetically, as one who 

has been right into this program, I am picking my words very carefully, but when you talk about the question of immunity, you have 

got a warrant on actions that are going on, that pretty well immunizes anybody. I mean, if in a previous incarnation, Senator Specter and I got a search warrant to search somebody’s safe deposit 

box, and the bank opens it up for us, the bank is immunized because they have the warrant. 

I yield to Senator Specter. 

Senator SPECTER. Director McConnell, picking up on those three 

points— 

Senator SESSIONS. Mr. Chairman, just briefly, did the witness 

ever finish his statement? I do not know if he got to finish his 

statement. I know you interrupted him. You had something you 

were concerned about. But— 

Chairman LEAHY. Well, he was— 

Senator SESSIONS.—I do not think he got to finish. 

Chairman LEAHY. Well, he was at that time several minutes 

over, and I was trying to give him— 

Senator SESSIONS. His light was green. I noticed it was green 

when you were asking him— 

12 

Chairman LEAHY. No. His statement, which is part of the record, 

Senator Sessions, I was trying to give him a graceful way, rather 

than just saying, ‘‘You are way over time,’’ and cut him off. But 

thank you for raising that point. 

Senator HATCH. Well, Mr. Chairman, whether over or not, this 

is the Director of National Intelligence. We are all interested in 

what he had to say. I got the impression he was going through the 

history of this matter and was ultimately going to reach the points 

that you were concerned about and all of us are concerned about. 

Chairman LEAHY. I will give the— 

Senator HATCH. He ought to be able— 

Chairman LEAHY. The Senator from Utah will have as many 

rounds as he wants, if he wants to have 20 rounds, to ask the Director those questions, we will give him those. 

Senator HATCH. I would rather have him out watching over us 

from a security standpoint than here, to be honest with you. 

Chairman LEAHY. Senator Specter. 

Senator SPECTER. And now we return to Director McConnell. 

Going to the—if we could start the clock at 7 minutes, I would appreciate it. 

Going to the three issues that you have raised, the surveillance 

of U.S. persons in the United States is now governed by the warrant procedure— 

Mr. MCCONNELL. Yes, sir, it is. 

Senator SPECTER.—applications of the FISA Court, probable 

cause. 

Mr. MCCONNELL. Yes, sir. In all cases, yes. 

Senator SPECTER. Before there was wiretapping or surveillance 

on a person in the United States, correct? 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. You pick up the issue of compelling the private 

sector to help. We rejected the retroactivity of any such liability, 

but we have given you that assurance for the future, correct? 

Mr. MCCONNELL. That is correct. Yes, sir. 

Senator SPECTER. Satisfactory. I think on our revisiting the statute we will not call for your certification, Mr. Director, which we 

did because of our concern about the then-Attorney General, but 

can lodge that in the Attorney General, we had some criticism that 

giving the authority for certification to the Director of National Intelligence, we were letting the fox guard the chicken house. And we 

did that because we trusted you as the prime assurance that we 

could go back to the Attorney General. That will be acceptable to 

you, won’t it? 

Mr. MCCONNELL. Yes, sir. I would prefer that. 

Senator SPECTER. And when you pick up the issue of targeting 

foreigners overseas—I am going to get into some of the details, but 

first I want to be sure, Director McConnell, that we do not get into 

any areas which you think cross the line on secrecy which endangers our national security. Congresswoman Eshoo asked you in the 

House proceedings if you thought the congressional questioning of 

the administration’s surveillance program would lead to the killing 

of Americans. And according to the record, you responded, ‘‘Yes, 

ma’am, I do.’’ 

Is that an accurate quotation? 

13 

Mr. MCCONNELL. Yes, sir, it is. 

Senator SPECTER. Well, if we get into that territory, Director 

McConnell, tell us, and we will desist on a public session and undertake it in a private session to find out what we need to know. 

But as I said in my brief introductory remarks, there is great 

value in telling the American people, to the extent possible, consistent with national security, what the threat is. 

When you and I talked in July at length, there was public disclosure of the ‘‘chattering,’’ which was similar to what had occurred 

prior to 9/11/2001, correct? 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. To what extent can you say publicly the seriousness of the threat to U.S. national security? 

Mr. MCCONNELL. The level of dialog and chatter increased significantly. We released, as you recall, a National Intelligence Estimate about the same time to try to capture the threat from that 

point 3 years forward. 

Senator SPECTER. And what do you mean by ‘‘chatter’’? 

Mr. MCCONNELL. When we are observing activity of foreign targets, how they engage and what they are doing and what their 

planning might be and so on, we just refer to that as ‘‘chatter,’’ indicating volume. So that level of volume had increased, and it 

caused us to be concerned. 

We combined current activity with the assessment that I was 

about to mention that we completed after about a year of attempting to develop it and get it coordinated and so on. The timing of 

the assessment coming out is it was just ready in July; we did not 

speed it up or slow it down to meet any particular timeline. That 

is when it was ready. And what had happened is we had observed 

al Qaeda in the federally administered tribal area of Pakistan be 

able to re-establish a safe haven that allowed them to have the 

senior leadership recruit and middle-grade leadership recruit 

operatives and to train the operatives, and the operatives were 

being trained in things like commercially available components for 

explosives. And so that level of activity had increased significantly. 

The intent of al Qaeda’s leadership was to move those operatives 

from the training area into Europe and into the United States, and 

that was our concern, is our ability to recognize— 

Senator SPECTER. What did you say with respect to moving that 

activity into the United States? 

Mr. MCCONNELL. Operatives who were trained in a way to obtain 

commercially available explosives to then transit from the training 

region of—the border area between Afghanistan and Pakistan, to 

reposition. In some cases, they had recruited Europeans. Europeans in large part do not require a visa to come into this country. 

So purposefully recruiting an operative from Europe gives them an 

extra edge into getting an operative or two or three into the country with the ability to carry out an attack that might be reminiscent of 9/11. 

Senator SPECTER. Anything besides the chatter and the activity 

in Pakistan which led you to believe they had the capacity to come 

into the United States, perhaps through Europeans who did not 

need visas? Anything beyond that that you can disclosed publicly? 

14 

Mr. MCCONNELL. I would rather not go too much further, but to 

answer a question raised by Senator Leahy earlier, I made references to some numbers. I learned long ago never use a number, 

so I violated my own rule. But about 50 percent of what we even 

know comes out of the FISA program. Within that, in answer to 

the Senator’s question, when I said two-thirds, our ability within 

this 50 percent had been degraded by two-thirds because of the 

wording of the law, which had not been updated, leading up to this 

summer. 

So the point I was trying to highlight, about 50 percent of what 

we know comes from this process; about two-thirds of that had 

been degraded. So my push and emphasis over the summer was we 

have to get this wording changed so we can be more efficient and 

effective in targeting foreigners overseas. 

Senator SPECTER. Do the factors that were present in July which 

we discussed prevail today? 

Mr. MCCONNELL. They do. One of our concerns has been the 

level of public activity. I do not know if you follow it that closely, 

but Osama bin Laden personally has now put out a video and two 

audio pronouncements over the last months or 6 weeks, and that 

is unusual. He had been absent from the airwaves for well over a 

year. So when we see that much activity at one time, our concern 

is it is a signal, it is an indication of activity. So while chatter continues, training continues, recruitment continues, I think probably 

the easiest way to capture the most recent events was the takedown in Germany of what is referred to as IJU, the Islamic Jihad 

Union, which is an affiliate group that trained in Pakistan with al 

Qaeda and trained the operatives that were arrested in Germany 

in Pakistan. 

Senator SPECTER. I am going to come back in the second round 

to the question about giving the FISA Court authority when U.S. 

persons are targeted overseas instead of the Executive order, which 

now gives that to the Attorney General. I am going to come back 

to that to see if it would be acceptable. But I want to just close the 

loop on what you have just testified to by asking you how heavily 

do you weigh the Osama bin Laden public pronouncements where 

they disperse on video—how heavily do you weigh that as a threat 

and why do you weigh that as a threat? 

Mr. MCCONNELL. Sir, it is one of many factors, and I would say 

it is a concern. It just causes us to be concerned and vigilant. These 

other factors that I mentioned are the ones that cause me greater 

concern. So you can look over time and a statement may or may 

not mean something. There are some who put more credence in it. 

So I would say I am concerned. But when I can see with sufficient 

detail recruitment and training and explosives design and that sort 

of activity, and you follow it over time, you would understand why 

we are concerned. 

I would be happy to go into detail if we could go to a close session. 

Senator SPECTER. Thank you. 

Chairman LEAHY. Thank you, Senator Specter. 

Of course, after this, if there are members who want a closed session on the Republican side, please talk with Senator Specter about 

15 

that. On the Democratic side, talk with me. And Senator Specter 

and I will consult and come to an agreement on that. 

Senator Kennedy. 

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

thank you for having this hearing. Welcome. 

Just to review old ground for a moment, in 1976, in the wake of 

the fact that we had widespread wiretapping during the previous 

administration, during the Nixon administration, then-Attorney 

General Levi, a Republican, with a Republican administration, 

asked a number of the members of this Committee down to the 

Justice Department’ saying, ‘‘We have a real challenge to our national security.’’ The challenge involved enormously sensitive information, not only with regard to embassies but with regard to matters that were taking place overseas as well. Enormously sensitive. 

There was a sense that that Attorney General understood that 

the members of our Committee and the Members of Congress are 

as concerned about national security as anyone within the administration. And during that period of time, on four different occasions, 

members of this Committee went down to the Justice Department. 

And when the final legislation was enacted in 1978, there was one 

dissenting vote. One dissenting vote. We worked with a Republican 

administration and a Republican Attorney General to try and get 

the national security issues right. 

Up comes Mr. Gonzales. The members of this Committee said— 

many of us who had been through the 1978 experience—‘‘We want 

to work with you. We are as concerned about national security as 

you are.’’ He said, ‘‘We do not need your help. We do not need your 

assistance. We do not need your involvement. And as a matter of 

fact, we are not even going to tell you what is going on.’’ 

Now, I want to have some idea which tradition you follow. Are 

you willing to work with this Committee? Do you have sufficient 

confidence that the members of this Committee are as concerned 

about security as you are and also as concerned about the rights 

and liberties of the American people, and that when we get it right 

from an intelligence point of view, we are going to get it right with 

regard to protecting our rights? 

Mr. MCCONNELL. I do agree with that, Senator, absolutely. 

Senator KENNEDY. Well, are you going to be working with this 

Committee? 

Mr. MCCONNELL. Absolutely. 

Senator KENNEDY. And can you give us the assurance that whatever is passed by this Committee is going to be the one and only 

limit in terms of intelligence gathering, that it is going to be the 

sole means by which the executive branch can intercept communications in the United States? 

Mr. MCCONNELL. Sir, if we can get the law that we have just 

passed made permanent and address the other issues, then that is 

how I would intend to carry out this program. 

Senator KENNEDY. This is the issue because there are members 

of the Committee who are not sure what the law is. You are going 

to explain in detail what the law is and what it covers, either in 

open or in closed session? 

Mr. MCCONNELL. Yes, sir. I would be happy to do that. 

Senator KENNEDY. Wholly and completely? 

16 

Mr. MCCONNELL. Wholly and completely. 

Senator KENNEDY. Thank you. 

Could I ask you a question about Attorney General certification 

and immunity from liability for carriers? Isn’t it true that the carriers who act pursuant to a warrant or the Attorney General’s certification already have immunity from liability? 

Mr. MCCONNELL. I do not know the answer to that, sir. I could 

consult with counsel. I just do not know. 

Senator KENNEDY. It is my understanding—I see your counsel 

that the carriers that act pursuant to a warrant or Attorney General certification already have immunity from liability. 

Mr. MCCONNELL. Under the new law, that is correct. Yes, sir. 

Senator KENNEDY. Well, it is true under the old law, too. 

Mr. MCCONNELL. I do not know about the old law. What we 

asked for in the new one was to get— 

Senator KENNEDY. OK. Well, if the warrantless surveillance program was legal, as you have claimed, what do carriers need immunity from? 

Mr. MCCONNELL. I am not sure I understand your question, sir. 

Senator KENNEDY. Well, if they have been abiding by the law, 

they should not need immunity. If they have been abiding by the 

Attorney General’s certification, they should not need immunity. So 

why does the administration ask us to grant immunity for past activities when we have no idea what they were? At least I do not 

think any of the members of this Committee know what they were, 

but we are being asked to grant immunity, and that is what I am 

trying to drive at. 

Mr. MCCONNELL. Going forward, there is proscriptive liability for 

anyone that would assist us in this mission. In a retroactive sense, 

those who are alleged to have cooperated with us in the past are 

being sued, and so it is to seek liability protection from those suits. 

Senator KENNEDY. There is also a desire retroactively—to grant 

retroactive immunity. 

Mr. MCCONNELL. That is correct, sir. 

Senator KENNEDY. The point that is made is that this might 

bankrupt some of the companies if the lawsuits go ahead. It is a 

bad precedent, I think, if we finally have a law and then the carriers are able to violate the law and think that sometime in the future they can get immunity by talking about bankruptcy. There are 

alternative ways of preventing bankrupties. There are limits to 

damages, for example. But it is an important policy issue and question. 

Let me be in contact with you about this so you have a full idea 

of what I am driving at, because it is complicated and I know that 

you want to get the right position on this. 

Mr. Chairman, my time is just about up now. I will come back. 

Chairman LEAHY. Thank you. 

Senator Hatch. 

Senator HATCH. Well, Admiral McConnell, the problem here is 

that there were legal opinions that warrantless surveillance could 

be undertaken, and these companies patriotically cooperated with 

the Government based upon those opinions. Is that a fair statement? 

Mr. MCCONNELL. Yes, sir. 

17 

Senator HATCH. So the fact that there were no warrants because 

it was warrantless surveillance should not subject them to litigation. 

Mr. MCCONNELL. Those that were alleged to have helped us were 

responding to requests from the Government that was official. Yes, 

sir. 

Senator HATCH. Could you consider that response a patriotic response or— 

Mr. MCCONNELL. Certainly, sir. Coming out of 9/11, you know, 

a lot of things happened where people wanted to be helpful and 

supportive and so on. So that is the period when it is in question. 

How would we understand and be able to push back this threat 

after the heinous events of 9/11? 

Senator HATCH. Now, as you know, I am aware of what went on 

there because I was one of seven on the Intelligence Committee 

who were fully informed. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. Were those activities helpful in helping to protect the country? 

Mr. MCCONNELL. Yes, sir. They were essential. As I testified earlier, this process is a very, very significant part of our understanding of being able to warn—being able to see, understand, gain 

insight, and to be able to warn and prevent, move to cause things 

not to happen. 

Senator HATCH. And to protect us as citizens in this country. 

Mr. MCCONNELL. There have been a series of things that are not 

public. A few have become public, but there are many more that 

have not become public where we have been effective in shutting 

down something because of this program. 

Senator HATCH. That is what the Protect Act is all about, is to 

allow you the ability to protect America in reasonable ways. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. And we enacted it, and it passed somewhat overwhelmingly in the U.S. Senate. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. But you do not have any axes to grind, do you? 

I mean, you are not really a political person, as I understand it. 

Mr. MCCONNELL. No, sir, I am not. I mean, all I am attempting 

to do is to get the community positioned in the way that it can do 

its mission and then, consistent with the law, provide protection for 

citizens’ privacy and civil liberties in the way that was captured in 

the original law in 1978. 

Senator HATCH. Well, before the Protect Act, you were very concerned that you might not be able to protect the country. Is that 

correct? 

Mr. MCCONNELL. We had lost two-thirds of our ability because 

of the change in technology and the wording in the law. Some have 

said, ‘‘Well, McConnell is blaming it on the FISA Court.’’ I was not 

blaming it on any particular body. The wording in the law had not 

been changed. As has been noted, the law had been updated a 

number of times, but this problem had not been fixed. So what I 

was trying to flag is we need to fix that problem in the wording 

in the law so we can be effective in a foreign context. 

18 

Senator HATCH. In other words, before the Protect Act, the intelligence community tried to do what it could to protect our country, 

but there were issues raised up here and elsewhere, and a lot of 

complaining, and so we did the Protect Act to satisfy some of the 

criticisms and questions that were raised. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. Is that a fair statement? 

Mr. MCCONNELL. It is. Because of the change in technology, our 

access to communications, the place and the method because of the 

wording in the law would force us then to give Fourth Amendment 

protection to a foreign terrorist. 

Senator HATCH. So without giving any classified information, 

would it be your opinion that we are still under onslaught with regard to foreign people who want to destroy our country or want to 

attack our country? 

Mr. MCCONNELL. Sir, specifically they have al Qaeda and related—they have a program to acquire weapons of mass destruction, biological, chemical, radiological, or even nuclear. And if they 

obtain those materials, they intend to use them. 

Senator HATCH. But it is even more than that, even general espionage and abilities to hurt Americans are still in play, aren’t they? 

Mr. MCCONNELL. Yes, sir, and that goes far beyond just the terrorists. I was just referring to terrorists. 

Senator HATCH. So all you are asking for is the ability to be able 

to protect the people in this country. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. And you are aware of an ongoing onslaught of 

efforts to try and hurt this country. 

Mr. MCCONNELL. Indeed. 

Senator HATCH. And to try and hurt our people. In fact, kill our 

people. Is that correct? 

Mr. MCCONNELL. Yes. 

Senator HATCH. This is not just some little itty—bitty problem, 

is it? 

Mr. MCCONNELL. No, it is not. 

Senator HATCH. It is widespread? 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. Now, a reading of the Protect America Act as enacted without knowledge of the rest of FISA and applicable Executive orders could be read to permit the targeting of U.S. citizens 

reasonably believed to be outside of the United States. Is that correct? 

Mr. MCCONNELL. Sir, that assertion is made, but the mission of 

this community is foreign intelligence, and so if there was such targeting, it would have to be for a foreign intelligence purpose. 

Senator HATCH. That is right. However, the intelligence community is bound by Executive Order 12333. 

Mr. MCCONNELL. Yes, sir. 

Senator HATCH. It is critical for the public to understand that 

you are still bound by that Executive order, and nothing in the Protect Act changed this. Is that correct? 

Mr. MCCONNELL. That is correct. Yes, sir. 

Senator HATCH. Now, can you elaborate on the significant and 

necessary restrictions from Section 2.5 of this Executive order and 

19 

how they provide protection for the privacy of American citizens 

overseas? 

Mr. MCCONNELL. Under 2.5, you would be required to produce 

probable cause standard. In this case, it is reviewed and approved 

by the Attorney General, and— 

Senator HATCH. Well, that is a protection that you have. 

Mr. MCCONNELL. Yes, sir. And the situation—just to get perspective, I think in the past year that happened 55 times, maybe 56, 

but in the 50s. And the situation was such that someone is either— 

they have been determined to be an agent of a foreign power operating with a foreign power or a terrorist, or in some cases that 

might be a dual citizen. So while someone has U.S. citizenship, 

they had foreign citizenship, too, so it would put it in that category 

where we would have to develop probable cause. 

Senator HATCH. Other legislative proposals on this topic called 

for a narrow definition of ‘‘foreign intelligence information’’ applying only to international terrorism. Now, some have also called for 

a court order being required on foreign individuals overseas if a 

significant number of communications involve a person in the 

United States. 

Now, would you provide an explanation of the flaws in both of 

these suggestions and how terrorists could adapt their behavior to 

trigger protections? 

Mr. MCCONNELL. Yes, sir. As a practical matter, what you are 

able to do in this business is target one end of a conversation. You 

do that through a phone number or whatever. So the situation is 

we may be covering a foreign target in a foreign country. That person, we cannot control who calls them or who they call. If they call 

someone in the United States, now it sets up a situation where 

that could be the most important call, we intercept it because they 

could be activating a sleeper. It could be innocent. 

Senator HATCH. By a ‘‘sleeper,’’ you mean a sleeper cell of terrorists? 

Mr. MCCONNELL. Sleeper cell, yes, sir. And it could be totally innocent. In the FISA legislation of 1978, we had similar conditions. 

Someone overseas could call into the United States. So the process 

that was actually adapted from a criminal wiretapping program 

called minimization was established in FISA, reviewed and approved by the court, so there is a minimization procedure. So if it 

is totally incidental, it would be taken—expunged from the data 

base. If it were activating a sleeper or terrorist related, it would 

be something we would be required to report foreign intelligence 

on. And if I might, if I could just take a minute, I want to just read 

from the joint congressional inquiry into 9/11, and I will just read 

a couple of passages: 

‘‘There were gaps between NSA’s coverage of foreign communications and the FBI’s coverage of domestic communications that suggest a lack of attention to the domestic threat. Prior to 9/11, neither agency focused on the importance of identifying and ensuring 

coverage of communications between the United States and suspected terrorists located abroad.’’ That is exactly what happened 

with some of the terrorists here that were calling known terrorists 

overseas, and we missed that information. 

20 

The joint congressional inquiry concludes, ‘‘The Joint Inquiry has 

learned that one of the future hijackers communicated with a 

known terrorist facility in the Middle East while he was living in 

the United States. The intelligence community did not identify the 

domestic origin of this communication prior to 9/11 so that additional FBI investigative efforts could be coordinated.’’ 

So what we are describing here in this joint commission was a 

review after the fact of what we should have done, and the argument that I am making for the Committee today is preserving the 

legal foundation for us to target foreigners, foreigners that might 

call into the country to activate a cell, or a cell that is in the country reaching out to coordinate with a foreign terrorist cell located 

overseas. So our community is only targeting the foreigner overseas. 

Now, some will say, well, wait a minute, there is a situation 

where you could target overseas when your real target is in the 

United States. That is a violation of the Fourth Amendment. It is 

unlawful. So in that case, if we wanted to target or needed to target somebody in the United States, we get a warrant. 

And so from the way I think about it, it leaves the flexibility to 

our foreign intelligence mission. We have a situation under the law 

to deal with a foreign threat in the United States, and that is all 

warranted coverage. 

Senator HATCH. My time is up, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Feinstein. 

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

Welcome, Director McConnell. 

Mr. MCCONNELL. Thanks, ma’am. 

Senator FEINSTEIN. I have a series of questions. I believe that the 

FISA Act, since its passage in 1978, along the lines that Senator 

Kennedy was speaking, has been the exclusive legal means for conducting electronic surveillance for intelligence purposes. Do you 

agree that FISA, as presently written, includes language that it is 

the exclusive means to conduct surveillance for intelligence purposes? 

Mr. MCCONNELL. Senator, you and I have discussed this before. 

Senator FEINSTEIN. Right. I just want to go on the record with 

what you said to me. 

Mr. MCCONNELL. Yes, ma’am, and—this is how I would execute 

this authority under the authorities that I hold. But what you are 

addressing is a constitutional issue, the difference between Article 

I and Article II— 

Senator FEINSTEIN. What I am asking for is a yes or no— 

Mr. MCCONNELL. But I can’t—ma’am, I can’t commit one way or 

the other to a debate between the executive branch and the legislative branch. Under my authority, we get this law positioned right, 

that is how I would cause this community to execute our authorities. So I would be consistent with this law. But I can’t solve the 

constitutional debate that your question is addressing at a fundamental level. 

Senator FEINSTEIN. OK. Senator Hatch mentioned Executive 

Order 12333, Section 2.5, which we have talked about previously. 

This section applies to any time the intelligence community tries 

21 

to get information about a U.S. person overseas and requires that 

the Attorney General make a prior finding that there is probable 

cause to believe that the U.S. person is an agent of a foreign power. 

Would you agree to putting the language in Section 2.5 as currently written into statute? 

Mr. MCCONNELL. Ma’am, I wouldn’t object. What I would ask is 

we receive the language and examine it across the table from each 

other to understand its impact. And so long as it does not have unintended consequences, I would have no objection. 

Senator FEINSTEIN. For the subset of Section 2.5, operations 

where the collection is done inside the United States, would you 

support shifting the probable cause determination from the Attorney General to the FISA Court? 

Mr. MCCONNELL. It is inside the United States, ma’am. Even 

today it is under the FISA Court. 

Senator FEINSTEIN. Thank you very much. 

Now I would like to ask some questions of minimization. Do the 

minimization procedures prevent NSA from retaining communications that do not contain foreign intelligence information? 

Mr. MCCONNELL. If recognized, minimization would require them 

to expunge it from the data base. 

Senator FEINSTEIN. Do the minimization procedures require that 

U.S. person information is made anonymous before it is disseminated as intelligence reporting? 

Mr. MCCONNELL. Yes, ma’am, it does. 

Senator FEINSTEIN. Is it required that a warrant be obtained 

when the U.S. person themselves becomes the subject of interest? 

Mr. MCCONNELL. Yes, ma’am, and located inside the United 

States, yes, always. 

Senator FEINSTEIN. And the finding is of intelligence value. Is 

that correct? 

Mr. MCCONNELL. Back on the minimization procedures, let me 

give you an example, if I may. If two foreigners are discussing a 

member of this body, we would have—that is a U.S. person, so we 

would have to determine how we would deal with that. So if it had 

foreign intelligence value, you are being targeted or whatever, it is 

our obligation to report that. So we would report it as U.S. Person 

1, or say it was the second person involved, U.S. Person 2. So the 

attempt is to protect the identity of the U.S. person when it is done 

in a foreign intelligence context. 

Senator FEINSTEIN. All right. Let me just clarify that. When the 

pick-up is being analyzed and a determination is made that there 

is intelligence value by the analyst, exactly what happens? 

Mr. MCCONNELL. The report would be written, and the identity 

of a U.S. person would be, as I mentioned, listed as U.S. Person 

1, U.S. Person 2. 

Senator FEINSTEIN. And then what is the warrant? 

Mr. MCCONNELL. If for whatever reason the U.S. Person 1 or 2— 

say they were terrorists and they become a subject of a target or 

a subject of surveillance, then we would be required to get a warrant. 

Senator FEINSTEIN. And does that happen when the finding is by 

the analyst that the individual is of intelligence value? 

22 

Mr. MCCONNELL. It would always happen that way. Think of it 

this way— 

Senator FEINSTEIN. So that is the trigger. 

Mr. MCCONNELL. It is what do you target. If you target—think 

of it as a phone number. If you put that phone number in the data 

base as a target, you would have to have a warrant. 

Senator FEINSTEIN. All right. And that is determined, as I understood it previously, when the analyst makes a finding that there 

is intelligence value. 

Mr. MCCONNELL. That is a way to phrase it. Let’s just use a 

sleeper cell as an example. A foreign terrorist, which is your target, 

calls into the country and makes contact with somebody who is an 

accomplice or maybe a sleeper. At that point you would flag that 

information for the FBI so the FBI could get a warrant to conduct 

surveillance of that person. 

Now, let’s suppose that it is a foreign target, they call into the 

United States, and it is Al’s Pizza Shop, and it has nothing to do 

with anything. You would take that information out of the data 

base. You would expunge it from the data base. 

Senator FEINSTEIN. Would you support a provision that required 

the Government to submit the minimization procedures it uses for 

the Protect America Act collection for FISA Court review, not afterwards as in the Protect America Act, but before? 

Mr. MCCONNELL. They already have done that, and I wouldn’t 

have any objection to them looking at the process and— 

Senator FEINSTEIN. If that were written into the law. 

Mr. MCCONNELL. Yes, ma’am. But, now, I have to take it one 

step further because we get into unintended consequences. Depending on the phrasing and the way it is captured in the law, it could 

put us in a position that we couldn’t do foreign surveillance because we can’t tell who that person is going to call, we can’t control 

that until we got review beforehand. So if it is interpreted that way 

or could be interpreted that way, it would cause us great difficulty. 

So I am not objecting to how you phrased it, but we would have 

to look at it in the context of the bill and how might it be interpreted, because here is the thing I can’t recommend we do, and 

that is, introduce uncertainty or ambiguity that would cause us to 

lose effectiveness. Because we are talking about people who are 

planning and operating in minutes or hours as opposed to long lead 

times. 

Senator FEINSTEIN. Let me summarize it, and we have talked 

about this before. But it is my position that any collection against 

a U.S. person abroad with the minimization process, that that process should be approved by the court prior, and you have agreed to 

that, and that— 

Mr. MCCONNELL. Ma’am, you just mixed two things. That is why 

this gets so complex. 

Senator FEINSTEIN. How have I done that? 

Mr. MCCONNELL. All right. You went from targeting a U.S. person abroad to minimization. Two different issues. 

Senator FEINSTEIN. A U.S. person abroad is minimized. 

Mr. MCCONNELL. No, ma’am. Let’s say a U.S. person abroad is 

a dual citizen, agent of a foreign power. Currently, what the Executive order says is the community would have to produce probable 

23 

cause standards information, but you take that to the Attorney 

General for a warrant. 

Now, if you are— 

Senator FEINSTEIN. I am not talking about that part. I am talking about an innocent U.S. person abroad that gets caught up in 

one of these calls and how that call is minimized. 

Mr. MCCONNELL. All right. So we are talking about inadvertent 

collection. 

Senator FEINSTEIN. That is correct. 

Mr. MCCONNELL. Now, what is the question? Am I objecting to— 

Senator FEINSTEIN. So what is the minimization process and how 

does it function and what happens with that collection? 

Mr. MCCONNELL. First of all, you may not even realize it is in 

the data base, because if you do lots of collection you have to have 

a reason to look. You look at it. If it is foreign intelligence, then 

it is treated the way we discussed. If it is now recognized it is incidental, it would be expunged from the data base. 

Those procedures have been reviewed by the FISA Court. I would 

have no objection to them looking at them again. 

Chairman LEAHY. Senator. 

Senator FEINSTEIN. My time is up. Thank you. 

Chairman LEAHY. It is, and Senator Coburn is next. 

Senator COBURN. Thank you, Mr. Director, for being here, and 

thank you for your service. 

I just want to spend a little more time giving you a chance to 

outline for the American public the assurance that we have a minimization program that has been looked at, the procedures for that 

have been looked at by the FISA Court, agreed to by the FISA 

Court, and the assurance that you can give the American people 

that, in fact, there is not going to be a violation of that minimization process. Can you speak to that for a moment? 

Mr. MCCONNELL. Yes, sir, I can. We have been doing this for 29 

years. It is reviewed at four tiers, four different levels. The agency 

doing it, they have a training process inside, and it is looked at by 

their general counsel and their IG. My office, as the overseer of the 

community, we review it. The Department of Justice also reviews 

it. The FISA Court reviews it for the process and so on, and then 

it is subject to review by the Congress and the oversight committee. 

So if there is a question and they want to look at, you know, 

what we have done or what the procedure—or visit NSA or look at 

any of that, we would make it all available so people could see it 

and understand it. 

Senator COBURN. OK. So that brings me to my next question. 

You all do not operate without oversight, correct? 

Mr. MCCONNELL. No, sir, we don’t. 

Senator COBURN. There is oversight. And what are the committees of Congress that have oversight over what you do? 

Mr. MCCONNELL. Primarily, it is the House Permanent Select 

Committee on Intelligence and the Senate Select Committee on Intelligence. 

Senator COBURN. OK. Can you kind of give us a short summary 

of the oversight mechanisms of the Protect America Act that are 

in place today? 

24 

Mr. MCCONNELL. Yes, sir. The four tiers I just mentioned: internal, the agency; external, meaning my office and the Department 

of Justice; the FISA Court; and the Congress. Since the law was 

passed in August, and we put our—we came back up on our full 

coverage, there have been approximately ten visits out to NSA to 

sit down with the analysts and look at the data and the process 

and what is the training standard, what are the conditions, and 

what would you do with the information and track it through the 

process. 

So it has been extensively reviewed, and it is subject to that extensive review so long as there is a question, or if anybody wants 

to revisit on a periodic basis. 

Senator COBURN. OK. One of the questions—and I think legitimately raised, especially because of some of the past actions—is developing the trust of the American people. There is a certain paranoia out there because we are close to stepping on individual American rights. 

Do you as an agency have plans to try to communicate in a positive fashion both to the Congress and the American people about 

holding your responsibility for both minimization as well as the 

protection of individual rights in this country? 

Mr. MCCONNELL. Yes, sir. I personally have been very, very public on this issue, criticized in some cases for being so public. But 

if you will remember the three points that I started with—no warrant for a foreigner overseas, a foreign terrorist located overseas; 

a way to get assistance from the private sector. The third point is 

the one I believe very, very strongly in. Anytime there is surveillance of a U.S. person where that person is the target, I support, 

believe in, and would strongly endorse that we have a warrant. 

That warrant is given to us by a court, and that is not a menial 

process to go through because it is probable cause standard. Some 

would argue, well, you can go really fast because in an emergency 

you can get just a phone call, but you are still meeting a probable 

cause standard. 

So the Director of NSA, me, the Attorney General, we are not 

going to go fast until we have the facts in front of us, because it 

ultimately has to withstand the scrutiny of a court. 

Senator COBURN. So let me summarize, and you say if you agree 

with this. If you are an American citizen, you are not going to be 

targeted to any of this without the approval of a court. 

Mr. MCCONNELL. That is correct. 

Senator COBURN. All right. That needs to be said, loud and loud 

and loud. If you are an American citizen, you have the protection 

of a court before you are subject to this law. 

Mr. MCCONNELL. If you are an American citizen or even a noncitizen in the country, you have the protection of a warrant issued 

by a court before we could conduct any kind of a surveillance. 

Now, sir, so you are aware, some will argue that we are targeting 

overseas and the person overseas calls into the United States. That 

is where minimization starts. We cannot control what the overseas 

target does. We have to have a process to deal with that, and that 

is where minimization was introduced. It is an elegant solution. We 

have tried every way we can think of to make that different or 

stronger or more complete, and those who framed this law in 1978 

25 

and all of us that have looked at it since, we can’t find a better 

process. 

Senator COBURN. But those minimization procedures, like Senator Feinstein suggested, have been looked at by the FISA Court. 

Mr. MCCONNELL. They have. 

Senator COBURN. And you are suggesting and you would be 

happy to have those reviewed. 

Mr. MCCONNELL. Yes, sir. 

Senator COBURN. And those probably should be reviewed sequentially and annually. 

Mr. MCCONNELL. By not only the court, but by the Congress. 

Senator COBURN. Right. 

Mr. MCCONNELL. In whatever periodicity they need to review 

them to be comfortable we are doing it the right way. 

Senator COBURN. I have no other questions. 

Chairman LEAHY. Thank you very much, Senator Coburn. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. 

Admiral McConnell, I very much appreciate your service to our 

country, and I can tell you that we all agree that we need to make 

sure that our intelligence community can get the information they 

need for protecting the civil liberties of the people in our country. 

We also agree we need to modernize our laws and gather intelligence information. 

But let me just suggest that I have confidence in your administration of the agency, but the laws that we create today are going 

to go well beyond your term in office. So we need to make sure that 

we have the right laws in place. I agree with Senator Specter’s observations that some of the administrative decisions should be 

placed in statute in order that we have the protection, and I think 

that is a good suggestion that was made by Senator Specter. 

I appreciated also your analysis of the law in the 1970s. This is 

not paranoia. In the 1950s and 1960s, we had serious problems 

dealing with the civil liberties of the people in this country, and the 

FISA Court law was developed in order to provide the right balance. And as you point out in your testimony, you agreed with that 

law at its time, but it needs now to be modernized. 

Well, I think we still have concerns today, and I just really want 

you to focus a little bit more on the responsibilities for check and 

balance in our system. Traditionally, in criminal investigations, in 

the work of the Department of Justice, the courts have been the 

body that we look to as the check and balance. And yet the bill that 

was passed in August allows the FISA Court to look at the procedures used in gathering information, but it cannot be set aside unless it is clearly erroneous. 

Now, you do not need to be a lawyer to know that is a pretty 

difficult standard for the Court to use to set aside the procedures 

that have been developed. We are talking about the civil liberties 

of the people in this country. It seems to me that is a pretty tough 

standard for the entity, the branch of Government that is supposed 

to be our checks and balance. In order to get involved and suggest 

changes, they would have to find that your procedures are clearly 

erroneous. 

Your comments on that? 

26 

Mr. MCCONNELL. Sir, the target that you are describing is foreign. It is not a U.S. person. So the procedures we are talking 

about— 

Senator CARDIN. But it has been pointed out before that in that 

process there is very likely at times to be communications with 

U.S. citizens. So there is the information being gathered potentially 

involving U.S. citizens. 

Mr. MCCONNELL. The procedures in question you are describing 

are the procedures to determine foreign-ness—that is an odd term, 

but it is how do we know that the person being targeted is foreign. 

So it has a foreign context. 

Now, as we discussed with minimization, if you are targeting 

that foreign person in a foreign country, you cannot control who 

they might call. That is where minimization comes in. If the foreign terrorist calls into the United States, what do you do with that 

call? 

Since we cannot determine ahead of time who they might call, 

some say, well, it is easy, just make it foreign to foreign. You can 

only target one thing at a time, and while the vast majority—the 

vast majority—of the time it is foreign to foreign, in that isolated 

instance when it might be foreign to U.S., how do you deal with 

it? And that is the elegant solution that was captured in 1978, and 

all I am arguing is return us to 1978. 

We had this same debate and situation in 1978 when the means 

of communication was wireless. The only thing that has changed, 

it went from wireless to wire. So that is why we found ourselves 

in this box. 

Senator CARDIN. I guess my point is this: You make a very persuasive argument that to require an individual application to the 

FISA Court on a case involving a foreign person would be too onerous and be ineffective in getting the information. So Congress is 

looking at saying, OK, rather than the individual case, take the 

process that you are using to the FISA Court and have more involvement of the FISA Court in the process. 

I am not sure we got it right—in fact, I do not believe we got 

it right in the last bill we passed as to the appropriate balance between the FISA Court and your work on approving the procedures 

that are used. 

I guess my question to you is: Do you have any suggestions to 

us how we could set up a more effective involvement of the FISA 

Court on the procedures that you are using that will give more 

comfort that we have in place the appropriate checks and balances 

without compromising the ability of your agency to go after the individual that you believe you should? 

Mr. MCCONNELL. I have no objection to working out the best possible solution, so I would be happy to work in any way—and I 

would even suggest perhaps we ought to involve the FISA Court 

in that discussion so that we can get the right balance between 

being effective in the foreign intelligence mission and protecting 

civil liberties. 

What I am worried about is because we were in a time crunch 

before, we are in a situation where words were about to be put into 

law, which is very difficult to back away from, that would have inVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
27 

troduced uncertainty that I feel confident would have inhibited our 

effectiveness. 

So we are happy to look at anything, just let’s sit down and examine what do you think that means and the 20 lawyers I have 

working this that are expert in it, what do they think, and what 

is the right balance. 

Senator CARDIN. That is a fair enough challenge. I would just 

submit that we have a couple months now before the deadline approaches, and it would be useful if we have a meeting of the minds, 

if that is useful to try to improve the checks and balances through 

the FISA Court on process. Your suggestions or your attorney’s 

suggestions in that would certainly be a good starting point for us 

in doing that. And it would be helpful if we could get that information to our Committee. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Sessions. 

Senator SESSIONS. Thank you. 

Thank you, Admiral McConnell, for your work and service to 

America and for protecting America, and I know that every morning you get up and until you go to bed at night, you worry about 

how to preserve this country and to make sure that another 9/11 

does not happen. But the threat is out there. You have made that 

clear. 

There was a national consensus after the attack on 9/11—and 

the 9/11 Commission was part of that and concluded that intelligence is the critical thing to preserve the safety of the people of 

the United States. Isn’t that correct? 

Mr. MCCONNELL. Yes, sir, that is correct. 

Senator SESSIONS. That is your business, but there is no way 

that we can stop everybody coming into America, we can stop every 

dangerous act that occurs, but knowing who has a malicious intent, 

intelligence, is the key to protecting us. Would you not agree? 

Mr. MCCONNELL. Yes, sir. I do agree with that. 

Senator SESSIONS. Well, I have been frustrated because it seems 

to me the tenor and tone of hearing after hearing after hearing 

since 9/11 has been that somehow what you are doing is an attempt to constrict the great freedoms that Americans believe in, 

and we have forgotten the dangers that we face. And I would just 

note with regard to 1978, nobody denies that the people in 1978 

were striving as best they could to correct some abuses that had 

occurred. But they created a wall of separation between the CIA, 

foreign intelligence and domestic intelligence, and the 9/11 Commission concluded that was a disaster. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. And we reversed that, clearly, promptly, when 

we faced up to what the good-intentioned people did in 1978. 

Also, in 1978, through good intentions, they prohibited intelligence officers from undertaking operations and informant relationships with people around the world who may have had bad 

records. Do you remember that? 

Mr. MCCONNELL. Yes, sir, I do. 

Senator SESSIONS. The intelligence community was concerned 

about that at the time, but Congress did not listen, and we did 

that. And after 9/11, that wonderful idea was examined in the cold 

28 

light of day and promptly changed and eliminated. So our danger, 

I would submit to my colleagues, is that through good intentions 

we can create laws that, in fact, inhibit the legitimate ability of 

this Nation to protect itself. 

Now, having been through this, and having had, in 12 years as 

United States Attorney, I think one or two wiretaps, I know a little 

bit about that. And let me just ask you: You are not a lawyer, Admiral. 

Mr. MCCONNELL. No, sir. 

Senator SESSIONS. You are doing pretty well for a non-lawyer, I 

have to tell you. But when you obtain a wiretap in the United 

States on an American citizen, it takes a good deal of effort to do 

that. But once you obtain the ability through a court order at great 

effort, then you—you don’t just—a person doesn’t just talk to himself on the phone. You listen to who the person talks to. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. So once you have a lawful intercept, a lawful 

wiretap on an American citizen, you listen to who they call. Likewise, if you have a lawful intercept on a foreign person, you listen 

to who they talk to. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. Isn’t that right? 

Mr. MCCONNELL. That is correct. 

Senator SESSIONS. So if they happen to call not a foreign person 

but call somebody in the United States, then that is expected, to 

me, from the beginning that they might do that, and you would 

want to listen to that conversation. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. I do not see that fundamentally that is any 

different than the principle I have referred to about a lawful warranted wiretap here. 

So you listen to people who call, but if they call an American citizen and it appears that that conversation is unrelated to terrorism, or it appears to be innocent, then you even take steps to 

minimize that conversation. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. Is that right? 

Mr. MCCONNELL. That is correct. 

Senator SESSIONS. And how do you do that, again? 

Mr. MCCONNELL. It is just expunged from the database. 

Senator SESSIONS. Well, isn’t that a bit dangerous? What if they 

were using code? Are you taking some risk there? Because if they 

were using some innocent code and you even take the name of the 

person they called in the United States out of the system? 

Mr. MCCONNELL. Yes, sir. That is a judgment call. There would 

be some potential risk. 

Senator SESSIONS. But as an effort to avoid criticism from those 

who always seem to be unhappy with what you are doing, you have 

gone to the extent that you would minimize that call by removing 

the name from the system. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. Now, let me ask you, if a person has been 

identified to be associated with a terrorist organization, they are 

somewhere in the mountains of Afghanistan, and they are calling 

29 

someone in the United States talking about a meal or what kind 

of television set they have and it seems to be innocent, do you still 

minimize that call? 

Mr. MCCONNELL. We would. It would be a judgment call. We 

would hope we would have continuity on the person we are targeting, so if we had some reason to believe—and let’s suppose that 

a discussion about a meal could be interpreted about planning for 

an operation. At that point, one, you would report the information; 

and, two, if that person, the U.S. person in the United States, you 

would coordinate with the FBI then to get a warrant against that 

person to find out if it was, in fact, terrorism related. 

Senator SESSIONS. But you would not have a basis to get a warrant based on what appeared to be an innocent phone call, factually, and so the only connection you have is that somebody in the 

United States is talking to a terrorist. 

Mr. MCCONNELL. Yes, sir, that is correct. 

Senator SESSIONS. And you are minimizing that. 

Mr. MCCONNELL. Right. 

Senator SESSIONS. Unless it appears that the conversation had 

some relationship to what might be unlawful activity. 

With regard to Senator Leahy’s comment suggesting that you 

misstated the impact of the FISA law, I would like to give you a 

chance to explain that again. I thought your explanation made a 

lot of sense to me. Anybody can make a mistake. But I think your 

testimony was quite accurate as you understood it. Would you explain that? 

Mr. MCCONNELL. Yes, sir. I have used some numbers a couple 

times. Someone had asked me what is the significance of this program, and the point I was trying to make, it is probably somewhere 

in the neighborhood of 50 percent or more of our total collection to 

understand this threat. 

Once you take FISA as a stand-alone, people had asked me, well, 

what had happened with the wording under the old law based on 

subsequent reviews by the FISA Court, and the answer I gave is 

that we have been reduced by about two-thirds of what our capabilities were over that period of time. So we were getting into an 

extremist situation. Known terrorists overseas, we were unable to 

target without a probable cause level one. Probable cause is a hard 

standard to satisfy, and so it takes time. So working those off, we 

started in the spring to try to work them off, and, in fact, over the 

summer we were falling further and further behind, because there 

are lots of potential targets, and a single target, single human 

being, could use multiple avenues of communication. So you find 

yourself trying to catch up. That was the first problem. 

Second is the very people who can understand this, the ones who 

speak the language, that know the individuals in a terrorist cell, 

are the ones that have to stop and do the justification. And so we 

actually had a situation where management of the process would 

have to make a judgment: Do I stay on target with the one or two 

or three or four that I have warranted coverage of? Remembering 

this is a foreign target in a foreign place? Or do I stop and give 

up on that target while we spend time writing a justification? 

Senator SESSIONS. To get a probable cause for a warrant that 

probably takes a hundred or more pages chock-full of facts and figVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
30 

ures is very difficult to write, and if you are in error, the law officer 

will be accused of perjury. So they have to do it right, and it takes 

a lot of time. 

Mr. MCCONNELL. Yes, sir. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Thank you for coming before the Committee, Mr. Director. I 

would like to start by following up on Senator Kennedy’s questions 

about the retroactive immunity you are seeking. How can members 

of this Committee evaluate that request without facts about the alleged conduct in question? 

Mr. MCCONNELL. Sir, those facts should be available to you. 

What I am asking for in a broad context—there are those who are 

alleged to have cooperated with us, that could be and are being 

subjected to suits. So in this context of doing this mission, when 

you understand the technology of today and how the ebb and flow 

of what it is we have to use to do our mission, we can’t do it without the cooperation of the private sector. The United States intelligence community cannot do this mission without the cooperation 

of the private sector. 

So in the situation we found ourselves in, the law of last month 

talked of proscriptive protection. What I am asking for is we still 

have this situation to deal with retroactively. So I am asking for 

us to consider that in the deliberations you have. If there is information that you need to do that, I will make every effort to get you 

whatever I can— 

Senator FEINGOLD. You have refused to provide Presidential authorizations and DOJ opinions— 

Mr. MCCONNELL. No, sir, I haven’t refused. 

Senator FEINGOLD [continuing]. That I think are critical to understand this. 

Mr. MCCONNELL. I haven’t refused to provide the Committee 

with anything. I am in a position where I am attempting to conduct 

a mission. The administration that I work for, I have had some dialog about how that might play out. As I understand it, there is a 

negotiation between the Chairman and those in the White House 

about how this might play out. So I have made my recommendations, but I don’t control the process. 

Senator FEINGOLD. Well, I think that is critical, and I would say 

that— 

Chairman LEAHY. Without going into the Senator’s time, and 

your recommendation was what? 

Mr. MCCONNELL. We need to provide the appropriate level of insight and information for the Committee to get us to the place 

where we can get the right legislation for this mission going forward. 

Senator FEINGOLD. Does your recommendation include Presidential authorizations and DOJ opinions? 

Mr. MCCONNELL. Sir, I don’t want to go into that level of specificity. 

Senator FEINGOLD. I would really suggest that if you are serious 

about this immunity proposal, which you obviously are, you have 

to make sure that Congress has what it needs to evaluate it. That 

31 

is just a bare minimum for us to be able to do our job. You have 

a job to do, and you are trying to do it well. 

Mr. MCCONNELL. Yes, sir. 

Senator FEINGOLD. We want to be in the same position. 

Mr. MCCONNELL. I understand. 

Senator FEINGOLD. The only way we can be in that position is 

if we have the material so we can understand this. 

Let me ask you, as a general matter, do you think that private 

sector liability for unlawful surveillance plays any role in the enforcement of U.S. privacy laws and in providing disincentives to engage in lawful behavior? 

Mr. MCCONNELL. That is a pretty complex question. In there you 

have said ‘‘unlawful.’’ I am not suggesting anything, endorsing anything that is unlawful. So could you— 

Senator FEINGOLD. Well, I think it is pretty simple. Do you think 

there is a role for private sector liability to make sure that people’s 

privacy is protected in this country? Do you believe in that principle? 

Mr. MCCONNELL. I believe that the process should be subjected 

to the appropriate legal framework so that privacy is protected. 

Yes, sir, I do agree with that. 

Senator FEINGOLD. You and Mr. Wainstein have stated several 

times in hearings over the last couple of weeks, and I think you 

said it again here today, that you would be willing to look at language proposed by Members of Congress for changes to the Protect 

America Act, but that you, of course, want to be careful to ensure 

that there are not unintended consequences that result from what 

may seem like small changes in the language. 

Mr. MCCONNELL. That is correct. 

Senator FEINGOLD. I take your point. But the point I want to emphasize here is I think that obligation goes both ways. Congress 

has to be careful also not to unintentionally authorize activities 

that we do not want conducted. I know there has been some back 

and forth about this. You are very familiar with the controversy 

surrounding the language in the PAA authorizing acquisition of information ‘‘concerning’’ persons outside the United States. Why was 

this word ‘‘concerning’’ used? And why should Congress even consider reauthorizing such broad and ambiguous language? 

Mr. MCCONNELL. Sir, I talked to the keeper of the pen when that 

was drafted, and, quite frankly, we were not sure why the word 

‘‘concerning’’ was used. Different language—at one point it was ‘‘directed at,’’ at another it was ‘‘concerning.’’ 

So the message I would deliver today is let’s get the language 

that we can agree to, examine it from the responsibilities of the 

Congress and the responsibilities that I have to do this mission, 

and play it out to see what does it mean and how might it be interpreted so we can get to the right language. So if ‘‘concerning’’ is the 

wrong word, let’s agree to a better word. 

Senator FEINGOLD. The funny thing about this is we are not talking about a proposal. This is the law of the land. And this underscores the problem with this rush to judgment that we had in the 

last-minute push to get this bill passed, if you were not even comfortable with this language. And I have to say that we have to be 

a little worried about this sort of thing because this is the same 

32 

administration that claimed in one of the most absurd legal arguments I have ever heard that the authorization Congress passed to 

use military force in Afghanistan after 9/11 somehow allowed it to 

wiretap Americans in the United States without a warrant, and 

they did so for years in secret. So when members of the administration say that we should more or less trust them with something 

like this members of the public and the Congress have every right 

to be skeptical—and we have a duty to be skeptical. But I do appreciate the fact that you have acknowledged that there are concerns with the word ‘‘concerning’’ and that we have to take it seriously. 

Director McConnell, you stated that reverse targeting is a violation of the Fourth Amendment and grounds for criminal prosecution. In public testimony to the House Intelligence Committee last 

Thursday, Assistant Attorney General Wainstein stated that reverse targeting includes wiretapping an individual overseas when 

you really want to listen to the American with whom the target is 

communicating. Do you agree with that description? 

Mr. MCCONNELL. I do. 

Senator FEINGOLD. And is this something that is essentially selfpolicing? How does the executive branch ensure that this constitutional principle is not violated? 

Mr. MCCONNELL. As I tried to explain before, you can only target 

one thing, and so if the U.S. person in this country, for whatever 

reason—terrorists or whatever the issue is—becomes a target, then 

you would be required to have a warrant. 

Now, if you engaged in that process of reverse targeting where 

you are targeting someone overseas and your real target is in the 

United States, that would be a violation of the Fourth Amendment. 

That is unlawful. 

Senator FEINGOLD. Last Thursday, you told Congresswoman 

Schakowsky that while you do not know how much U.S. person information is in your databases, you could provide information 

about how much U.S. person information is looked at and how 

much is disseminated. Can you do that with regard to these new 

authorities? And when can you make that information available to 

this Committee? 

Mr. MCCONNELL. The information is being prepared now, and, 

yes, I can do it with regard to the new authorities. 

Senator FEINGOLD. And when can we receive that? 

Mr. MCCONNELL. I don’t know what—I have tasked it. I am waiting for a response back. I don’t know yet. As soon as I know, I will 

be happy to advise you. 

Senator FEINGOLD. Days? Weeks? 

Mr. MCCONNELL. I would say weeks. 

Senator FEINGOLD. During a hearing of the House Intelligence 

Committee, you stated that the bulk collection of all communications originating overseas ‘‘would certainly be desirable if it was 

physically possible to do so,’’ but that bulk collection of communications with Americans is not needed. 

Is bulk collection of all communications originating overseas, including communications of people in the United States, authorized 

by the Protect America Act? 

33 

Mr. MCCONNELL. It would be authorized if it were physically possible to do it. But the purpose of the authorization is for foreign 

intelligence. So when I say— 

Senator FEINGOLD. So there is nothing, there is no language actually prohibiting this? 

Mr. MCCONNELL. So long as it is foreign, in a foreign country for 

foreign intelligence purposes. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Before Senator Whitehouse starts, I am just curious. In listening 

to your answers to Senator Feingold’s questions, this retroactive 

immunity basically takes away rights of plaintiffs who have spent 

money on suits and so forth. They may not be successful if they 

went through the courts, but it is taking away all their rights. And 

I have heard so many speeches from my good friends on the other 

side of the aisle, everything from environmental laws on, as being 

illegal takings. Was this a taking? 

Mr. MCCONNELL. I don’t know what you mean by ‘‘taking.’’ 

Chairman LEAHY. Well, if we take away somebody’s rights to 

have a suit, we do it retroactively, we do it without any compensation. I just throw that out. Your lawyers may want—don’t you try 

to answer, but it is interesting if we are talking about environmental law, it is terrible that we would consider this because it is 

a taking. But if we want to remove somebody’s rights to a suit, it 

is not. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Admiral, good to see you again. 

Mr. MCCONNELL. Thank you, sir. 

Senator WHITEHOUSE. Some of what we are going to discuss will 

be well-plowed ground between the two of us because we have had 

these discussions in closed sessions. But I think it is important to 

go over it again in a public session because it is my very, very 

strong belief that the problems that we face in adapting the Protect 

America Act to protect American citizens are very solvable. And 

had it not been for the atmosphere of stampede that was created 

in the waning days of the session and had we had a little bit more 

time to talk coolly with one another, we could have solved it working off a very sensible template, which is Title III surveillance that 

takes place in the United States right now, such as the Senator 

from Alabama mentioned a moment ago. 

In that context, it is my understanding that there are basically 

two categories of surveillance of Americans that are of concern 

under the Protect America Act. One is the surveillance of an American when they are abroad, and the second is the surveillance that 

is incidental to the intercept of a target abroad when they happen 

to speak to an American. Can we talk about them in those general 

two categories? 

Mr. MCCONNELL. Yes, we could, in a foreign context. Of course, 

if it is in the United States, it is— 

Senator WHITEHOUSE. That is a different issue. That is covered 

by existing law. 

Mr. MCCONNELL. Right. 

34 

Senator WHITEHOUSE. Under the Protect America Act, there is no 

court warrant that is required for a person reasonably believed to 

be outside the United States. That is the magic phrase in the statute, correct? 

Mr. MCCONNELL. That is correct. 

Senator WHITEHOUSE. And if you look just at the language in the 

statute alone, a person reasonably believed to be outside the 

United States could be an American traveling on vacation, somebody visiting family in Ireland, somebody on a business trip. It 

could even mean troops serving in Iraq right now. Correct? 

Mr. MCCONNELL. You could interpret it that way. 

Senator WHITEHOUSE. And the protection against it being interpreted that way is an Executive order that requires the Attorney 

General to assure that the target is an agent of a foreign power. 

Correct? 

Mr. MCCONNELL. That is correct. 

Senator WHITEHOUSE. Now, the domestic model for this kind of 

surveillance requires, very consistently with the American system 

of Government and the separation of powers, that a court get involved and that the executive branch, the FBI, for instance, does 

not get to make that determination on its own. 

Mr. MCCONNELL. Yes, sir. But what you just shifted to was a domestic situation where you have a warrant. And what I would 

highlight is in the vast majority of the situations that would involve this community, we are targeting a foreigner for which there 

is no warrant. So it is a little bit— 

Senator WHITEHOUSE. I agree, but I am talking about where you 

are targeting an American who happens to be abroad. That is the 

category we are talking about here. 

Mr. MCCONNELL. OK. 

Senator WHITEHOUSE. In that category, as I understand it, you 

have agreed that the Executive order, assuming the language is all 

appropriate and does not create unintended consequences, could be 

codified in this statute. Would you also agree that the determination whether the person is an agent of a foreign power could be a 

FISA Court determination rather than a determination within the 

executive branch? 

Mr. MCCONNELL. Sir, that is a possibility, and as we discussed 

the last time we talked about this, it sounds reasonable here at the 

line of scrimmage. But let’s see the language and examine it, make 

sure it says what you want it to say and doesn’t impact us in some 

way that causes a loss of flexibility. And given it doesn’t have unintended consequences, I personally would have no objection to that. 

Senator WHITEHOUSE. And would you agree at least that by 

bringing in the FISA Court we are matching, in the context of an 

American who happens to be abroad, the type of procedural protection that an American enjoys when they happen to be in the 

United States? 

Mr. MCCONNELL. I would. 

Senator WHITEHOUSE. OK. The other issue is the incidental 

intercepts, and as Senator Sessions pointed out, those happen all 

the time. Like him, I have obtained wiretaps before, both as United 

States Attorney and Attorney General. In fact, as Attorney General 

I had to do it myself personally with the presiding judge of the suVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
35 

perior court because Rhode Island is careful about letting that authority loose. When it takes place in a Title III context, the restriction on what is overheard from those incidental interceptions of 

people who the target calls is protected by minimization procedures. Just the same way when somebody calls a target—when you 

are targeting somebody overseas and they call an American, that 

is also protected by minimization procedures. Correct? 

Mr. MCCONNELL. That is correct. 

Senator WHITEHOUSE. The difference, as I see it, is that in the 

domestic surveillance context, the enforcement of those procedures, 

whether the agency actually obeys the rules that they are under, 

is not only enforced by the agency itself, but consistent, again, with 

the separation of powers principles of the United States, the court 

that issued the original warrant has some oversight authority over 

whether or not the minimization procedures in its order are complied with. Correct? 

Mr. MCCONNELL. That is my understanding. 

Senator WHITEHOUSE. That does not follow into the foreign targeting situation, and so if we were to make an equivalent role for 

the FISA Court, to me it would require the FISA Court to do two 

things: one, approve the minimization procedures themselves— 

which, frankly, they do every time they issue a warrant, because 

they are right in the order. 

Mr. MCCONNELL. That is correct. 

Senator WHITEHOUSE. And, two, have a role in making sure that 

the procedures are, in fact, complied with by the agencies. Would 

you have any objection to the FISA Court having that role in a general way? 

Mr. MCCONNELL. You just introduced a level of complexity and 

uncertainty that I would say I would be happy to look at it. Now, 

what do I mean by that? In every case where there is Title III, in 

every case, a court has already agreed in advance that you are 

going to conduct this surveillance. And there are even—as I understand it, there are even some requirements for the Government to 

notify the party that you conducted surveillance against in a criminal situation. 

In the context of foreign intelligence, the mission is entirely different. It is foreign intelligence, foreign threat to the country. So 

the way you described it, while it can sound reasonable, might it 

put the court in a position of having to decide in advance what we 

could do with regard to foreign surveillance. So I would say— 

Senator WHITEHOUSE. No, that is not my intention either. My intention simply is to assure that if you got into a situation in which 

there was a renegade area in the intelligence community someplace 

in which they just simply were not complying with minimization— 

we have had unfortunate instances about the National Security 

Letters and the rules just were not complied with. It is helpful, I 

think, and it is salutary for the executive branch officials discharging a responsibility like that to know that a court can look in. 

And whether it is the Inspector General reporting to the court or 

whether there are some—but I do think that it is critical that there 

be a FISA Court role just as there would be for incidental intercepts on the U.S. side to oversee and make sure that the incidental 

intercepts are being minimized properly in the intelligence context. 

36 

Mr. MCCONNELL. Yes, sir, and when we discussed this before, 

the same answer. I am happy to sit down and take the language, 

look at it and have it examined, with some time—not like where 

we were before—so that we really understand what are the intended and the potentially unintended consequences, and so that 

we both satisfy ourselves that we are protecting Americans and we 

are not impacting our foreign intelligence mission. I would be 

happy to do that. 

Senator WHITEHOUSE. Mr. Chairman, I think if we are thoughtful about going about this the way the Admiral has suggested, we 

will find that a lot of the disagreement and concern and anxiety 

and, in some cases, anger and frustration that emerged in the August stampede can be easily worked through, and we can get to a 

bill that makes a lot of sense for Americans and is consistent with 

the expectations that are longstanding under Title III. 

Thank you very much. 

Chairman LEAHY. Well, the Senator from Rhode Island is right, 

and one of the reasons for having these hearings now well in advance of the time when the sunset provision comes is so we can do 

that. Of course, many of us thought we had worked out that, and 

we were quite surprised when apparently at what many of us felt 

was the last moment, it seemed the administration had a different 

idea. The Chairman of the Senate Intelligence Committee has written a significant letter, and I don’t know if that letter is classified 

or not, but I know the Senator from Rhode Island has seen it. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Admiral, you have made the point, I think, very clear that the 

intelligence collection at issue here is vital to our national security 

and that Americans’ rights are not being violated. But from a lot 

of the questions, I suspect to the average American this seems very 

complicated. And I would like to just have you explain two things 

for us using the most direct language you can in a non-classified 

context: to explain why this kind of collection is not suited to the 

usual court procedure for a criminal suspect, like we would see in 

a TV series, for example, and why it is not constitutionally necessary in any event. 

Mr. MCCONNELL. Sir, the situation we find ourselves with is literally there are billions of transactions, and the targets of foreign 

surveillance are very dynamic and they change, and they could 

change modes of communication and so on. So for us to have the 

inherent flexibility that we need to be responsive and to collect the 

information we need to protect the country, being encumbered by 

a court process to extend due process rights to a foreigner, a terrorist located overseas, puts us in a situation where we can’t be 

flexible, we can’t keep up. We started this process last winter, and 

because of the wording in the old law, it was requiring us, because 

communications completely flipped from 1978 until today, whereby 

international communications were on a wire, fiber optics, and they 

happened to flow through the United States, then we were in a situation to do foreign target, foreign country, we had to stop and get 

a warrant. 

It is so dynamic that we were losing ground. We had a level of 

capability. It was reviewed by the court. We started at that level. 

37 

And subsequent reviews—not because of the court, because of the 

wording in the law—we started reducing our capability. It was reduced in that review period about two-thirds. 

I thought, OK, we just add more resource, we go faster, whatever. The issue is there is a finite number of linguists and analysts 

that speak the languages, understand the problems, so you are 

forced into a situation of pulling people off position to write probable cause standard warrant requests for a foreigner overseas. And 

as a practical matter, we are falling further and further behind. 

So I felt a responsibility to identify that as an issue. The law captured it one way in the late 1970s. Technology changed, and we 

just need to recognize that and accommodate it to make it technology neutral. That is the sum and substance of what we are attempting to do. 

I mentioned earlier that what I was after was three points: no 

warrant for a foreign terrorist located overseas; a way to compel 

and cause protection of the carriers that would assist us, because 

we can’t do this without them; and then to require this community 

always, always, always, to get a warrant anytime it involves surveillance of a U.S. person. 

And so those were the principles, and we are where we are with 

this law that was passed, and we are going to review it again. That 

is what I am going to try to maintain consistency with regard to 

our capability so we can indeed protect the country. And all the 

things that are suggested—there were seven bills exchanged back 

and forth. Some of them attempting to fix A, in fact, shut us down 

at B or C or D. And that is why I say happy to look at it, but we 

have got to examine it in the cold light of day. 

Senator KYL. Never in the past—and, again, I hate to make it 

a matter of entertainment, but you see the spy movies and so on, 

when we send our spy abroad or James Bond is out looking to collect secrets. If you are abroad and you are collecting secrets against 

an enemy that is abroad, there has never been a requirement for 

a court warrant, has there? 

Mr. MCCONNELL. No, sir. 

Senator KYL. And it is arbitrary distinction, therefore, that in 

this particular case, just because a particular transaction happens 

to be routed through the United States but still involves foreigners, 

in terms of the reason for a change, there is no new reason for the 

change. 

Mr. MCCONNELL. No, sir. The attempt was to take what was captured in 1978, which in my view was right, and make it relevant 

to 2007. 

Senator KYL. And this is very important information in going 

after terrorists that we are fighting. 

Mr. MCCONNELL. Sir, it is vital. If we don’t have access to this, 

we are in most cases blind. 

Senator KYL. And when you finally identify an American as 

somebody that we want to target, then the procedures, the usual 

due process procedures that we see, then they apply. 

Mr. MCCONNELL. Yes, sir. 

Senator KYL. Now, some have said, well, but if you find that you 

are beginning to focus in on somebody because he is making quite 

a few domestic calls, calls that you cannot know when you first 

38 

look at what he is doing where those calls are going, but it turns 

out that some of them start being made domestically, first of all, 

might that be important for us to know? And if so, why? And—well, 

let me ask that first. 

Mr. MCCONNELL. It could be the most important call we would 

do in a long period of time because that may be activating a sleeper 

cell. So the only way we know that is when a targeted foreigner 

activates by calling in. So that is why it would be essential for us. 

Senator KYL. And if you had some kind of arbitrary number and 

they said, well, you have to have a warrant if the person has made 

more than 15 calls into the United States or something, it would 

be pretty obvious. What they would do is simply make 16 calls to 

a pizza parlor or something and then make another call. 

In other words, if we put statutory limitations—they are in statutes and, therefore, obviously are public—it could be possible for 

terrorists to get around the intent of what we are trying to accomplish here. 

Mr. MCCONNELL. Yes, sir. That would take away our inherent 

flexibility. I would also highlight that in the eyes of the law, a U.S. 

person could be not only a human being, it could be a corporation. 

So if terrorists are ordering parts or scheduling travel or whatever, 

that may be the vital interest to us to track the terrorist, not intending that we are tracking a travel organization or an airline or 

whatever. 

So the point you made is very, very important. It is the inherent 

flexibility to be responsive to the threat in a way that is useful, 

still respecting civil liberties by, if that person ever becomes a target, then you do a warranted process. 

Senator KYL. In terms of fighting these particular Islamic terrorists who have both attacked us here and also attacked us abroad, 

there is sometimes a debate about what is more important—fighting in a place like Afghanistan or Iraq, or having good intelligence. 

I have always had the view that ultimately the best way to protect 

our homeland involves two things: denying these terrorists a sanctuary, a free place to operate, but also, and perhaps even more importantly, having absolutely the best intelligence so that we can 

understand what they are up to and, therefore, better protect the 

homeland. 

How would you characterize the importance of this kind of intelligence gathering in this particular conflict? 

Mr. MCCONNELL. Sir, it is essential, and I would go further to 

say the terrorist group that we are all talking about, al Qaeda, is 

very resilient and adaptive. We know their intent, and they are 

going through a process now to figure out how to recruit, train, and 

prepare an operative and get them back into the country to have 

attacks similar to 9/11 or something of that nature. 

So the challenge for us becomes how do we see it, know it, understand it, and prevent it, and this process in large measure is how 

we do that. 

Senator KYL. In time. 

Mr. MCCONNELL. Yes, sir. In time. 

Senator KYL. Thank you. 

39 

Chairman LEAHY. Admiral, are you aware of any time that this 

administration has asked for a change in the FISA law when it has 

not gotten it? 

Mr. MCCONNELL. I think there was a request—yes, sir, last summer, I believe. Some of the members of this Committee introduced 

legislation that was passed on the House side, but I guess there 

was no agreement, so it did not pass. 

Chairman LEAHY. But was that requested by the administration? 

Mr. MCCONNELL. I don’t know the origin of the source. 

Chairman LEAHY. There were seven or eight during this administration. It seems we must have been answering some of their questions. 

Mr. MCCONNELL. The language originated on the Hill last year, 

sir, I have just been advised. I was not playing, sir. I just didn’t 

know. 

Chairman LEAHY. OK. Now, you have referred to the use of minimization procedures, and those of us who have been here since the 

beginning of this law are aware of those. But under the Protect 

America Act, minimized communications are not destroyed. They 

are maintained in a data base. Is that not correct? 

Mr. MCCONNELL. That is not correct. No, sir. 

Chairman LEAHY. It is not. 

Mr. MCCONNELL. If they are minimized, you would take them 

out of the data base. Minimization today is exactly as it was in 

1978. That was the agreement, the process that was agreed to 

then. 

Chairman LEAHY. So these minimized communications are not 

maintained in the data base? 

Mr. MCCONNELL. No, sir. If it is in the data base and recognized, 

it would be expunged from the data base. Now, what you are making reference to is this is the fourth hearing on this subject since 

last Tuesday, and in there what I talked—in a previous hearing I 

talked about data that may be collected in a data base that you 

don’t know it is there. 

Chairman LEAHY. All right. 

Mr. MCCONNELL. You wouldn’t know it is there until you had a 

reason to go search it. So it could be there. It just— 

Chairman LEAHY. Under the Protect America Act, the FISA 

Court has no role in the oversight of minimization, does it? 

Mr. MCCONNELL. It does if there is—anytime it involves a warrant and a U.S. person, the Court would in its ruling have available to it in the context of minimization— 

Chairman LEAHY. Are they shown the minimization procedures 

the Government uses? 

Mr. MCCONNELL. I am sorry, sir? 

Chairman LEAHY. Are they shown the minimization procedures— 

Mr. MCCONNELL. Yes, sir, they are. 

Chairman LEAHY. I will do a couple of followup questions on this 

for the record, and I hope you and your lawyers look at it very, 

very carefully. As I said, I am not trying to play ‘‘gotcha.’’ And if 

there are answers in here where, upon reflection, you think they 

should have been different, you have plenty of time to do that. 

Mr. MCCONNELL. I appreciate that, Mr. Chairman. 

40 

Chairman LEAHY. You have identified as one of your highest priorities giving the retroactive immunity—and we have touched on 

this, several of us have—to communication companies that may 

have broken the law in helping to carry out the Government’s secret surveillance program after 9/11. As you may know, the State 

of Vermont, along with a number of other States, is seeking to investigate some telecommunication carriers for disclosing consumer 

information to the NSA in that program. There is a lawsuit, I believe in the Ninth Circuit, that would be dismissed if the carrier 

is granted immunity. That is why I asked the question about taking. 

Now, this Committee has issued subpoenas, voted for by both 

Democrats and Republicans, seeking information on this. We have 

received no documents, no information about the legal justification 

for the warrantless surveillance program. We are in the dark about 

what the legal justification was, what communications took place 

between the administration and the communication companies to 

secure private sector cooperation for the program. For 2 years, we 

have been seeking the legal justification and the analysis and what 

the administration relied on to conduct the President’s program of 

warrantless surveillance. We are, however, asked to pass laws to 

immunize everybody and to wipe out of court any cases. And basically we are asked to do that on a total ‘‘trust me’’ basis. We will 

not tell you what we did or what we based it on or why, but please 

pass a law saying that you have made a studied conclusion that everything we did was OK and thus immunize us. I am not sure if 

you were presented with something like that you would be too 

eager to accept that. 

Do you have any objection from an operational or a national security perspective to having the Congress see these documents, 

legal documents on which this justification was based, on either a 

classified or unclassified basis? 

Mr. MCCONNELL. Sir, that is a call the White House will have 

to make. My personal philosophy in how to conduct this business 

is oversight is a good thing; it keeps the system honest. And so engaging with the Congress and providing the appropriate level of information for the oversight process is what we should do. 

Now, that said, there are going to be judgment calls about what 

is privileged or not, and there will be differences of opinion. The 

Constitution did say co-equal bodies, and a lot of this is at the constitutional level. So you are asking me if I can solve that. I cannot. 

Chairman LEAHY. No. I am saying as DNI, just simply as DNI. 

Obviously, the judgment call is going to be made by the administration. But as DNI, do you have any objection to these legal 

memoranda being shared, these historical legal memoranda being 

shared with this Committee? 

Mr. MCCONNELL. Sir, my history on this starts in January when 

I was nominated and February when I was confirmed. What I am 

trying to do in my role— 

Chairman LEAHY. But, obviously, you have seen historical legal— 

Mr. MCCONNELL. I have not. I have not. What I have attempted 

to do here is to take where we are today and put it wholly under 

the law and the FISA process for how we conduct our business. All 

of it. There is nothing extreme or—so anything that we do in the 

41 

nature of the business we are talking about would make it—I 

would be happy to— 

Chairman LEAHY. But, Admiral, you are up here lobbying to 

have us wipe out these cases retroactively by legislation. 

Mr. MCCONNELL. Sir, I would— 

Chairman LEAHY. I mean, isn’t this kind of asking us to buy a 

pig in a poke? 

Mr. MCCONNELL. No, sir, it isn’t. First of all, I would object to 

the word ‘‘lobbying.’’ I am here because you invited me here. And 

I am testifying, not lobbying. 

Chairman LEAHY. I am thinking of some of it during—I am going 

back to July and August in some of your meetings. You can call it 

whatever you want. You were advocating for retroactive legislation. 

Mr. MCCONNELL. I have a responsibility as the leader of the Nation’s intelligence community to make recommendations to this 

body and the administration about what it is we need to do our job, 

and that is how I saw my role, and that is what I hope to—in the 

final analysis, when it will be looked back on, that is what I was 

doing. 

Chairman LEAHY. Are you conducting, if you want to answer 

this, under the PAA or otherwise, are you conducting physical 

searches of homes or businesses of Americans or Americans’ mail 

without a warrant? 

Mr. MCCONNELL. That would not be the business that I represent. If that situation were to take place, it would be the responsibility of the FBI, and they would do it with a warranted process. 

Chairman LEAHY. But you are not? 

Mr. MCCONNELL. No, I am not. 

Chairman LEAHY. Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. Just a couple of 

questions, because we have another panel waiting to be heard. 

When I questioned you on the first round, I brought up the issue 

of the targeting of U.S. persons overseas and noted that there is 

an Executive Order which requires the Attorney General to certify 

that there is probable cause. My own view is that there ought to 

be that determination made by the FISA court. 

In response to a question of Senator Hatch, you said there are 

only about 50 to 55 of those a year, so it would not be a great administrative burden. Would you concur—or perhaps better stated, 

have any objection—to, in the next version of the statute, to give 

the FISA court the authority to authorize targeting U.S. persons 

overseas? 

Mr. MCCONNELL. Sir, as I indicated earlier, I would have no personal objection. What we would have to do is look at the language 

to examine any potential unintended consequences. The difference 

would be the authority for the warrant going from the Attorney 

General into the FISA court. So that seems to me, on the face of 

it, to be a manageable situation. 

There are reasons that we could go into in a closed session that 

it was set up the way it is, and I would be happy to share that 

with you. But let us examine that in closed session, make sure it 

does not have unintended consequences, and I would be happy to 

say, let’s examine it. 

42 

Senator SPECTER. Are you saying that there are reasons vested 

in the Attorney General, the determination of probable cause, instead of the FISA court—and when probable cause is established, 

that is the traditional basis for the issuance of a warrant. 

Mr. MCCONNELL. Yes, sir. Let me separate ‘‘U.S. citizen’’ from 

‘‘U.S. person’’. In ‘‘U.S. citizen’’, it is easy. ‘‘U.S. person’’, it may 

present us a situation where we would just need to make you 

aware of the full range of potential impact. 

Senator SPECTER. But it is ‘‘U.S. person’’ where you have to have 

a warrant for targeting in the United States. 

Mr. MCCONNELL. That’s correct, sir. 

Senator SPECTER. So if the classification is ‘‘U.S. person’’, what 

difference would it make whether it’s in the United States or outside the United States? 

Mr. MCCONNELL. I was just trying to highlight, in my view, a 

U.S. citizen shouldn’t be expected to give up their rights, regardless 

of where they’re located. So it’s a higher standard for ‘‘U.S. citizen’’ 

as opposed to ‘‘U.S. person’’. 

A U.S. person can be a foreigner, or could even be a terrorist that 

was located in the United States, say a foreigner here, a green 

card. In the legal context, you could consider that person a U.S. 

person, even though they traveled back overseas. So I’m just trying 

to say there’s an issue in there we need to examine. 

Senator SPECTER. Well, I don’t see the distinction between according the same degree of privacy to a U.S. person, whether 

they’re in the United States or outside the United States, but we’ll 

reserve judgment on that until we discuss it in closed session. 

With respect to the approval of the FISA court on targeting people outside the United States, the objection has been made by you 

and the administration that there would be insufficient flexibility 

to require that going before the FISA court. But you acknowledge 

that the FISA court should review, at a minimum, their procedures. Correct? 

Mr. MCCONNELL. Yes, sir. And you said ‘‘person’’. I would just 

highlight, make sure it’s ‘‘foreign person located overseas’’. That’s 

the part that they would— 

Senator SPECTER. Foreign person located overseas. 

Mr. MCCONNELL. Foreign person. Yes, sir. 

Senator SPECTER. OK. 

Now, you need the flexibility to do that without prior approval 

by the FISA court because of the numbers involved? 

Mr. MCCONNELL. Yes, sir. It’s a very dynamic situation. 

Senator SPECTER. Dynamic. You mean large in numbers? 

Mr. MCCONNELL. Large. Huge. Huge. Yes, sir. 

Senator SPECTER. Dynamic meaning too many to do, you say? 

Mr. MCCONNELL. Fast-changing. Yes, sir. 

Senator SPECTER. Explain why that is. 

Mr. MCCONNELL. The— 

Senator SPECTER. Let me finish the question. Why you can’t handle that administratively to submit those applications to the FISA 

court with a statement of probable cause. 

Mr. MCCONNELL. Well, first of all, it’s extending the probable 

cause standard and Fourth Amendment protection to a foreigner 

overseas. So my argument would be, to maintain the flexibility of 

43 

our community to do our mission, why would you insert that as a 

standard because it’s an additional burden on the community to be 

flexible now? 

Senator SPECTER. Well, it may be a burden, but that’s not the determinant as to whether you ought to have the burden. The question is whether the burden is unreasonable and precludes you from 

doing your job. Is that what you’re saying? 

Mr. MCCONNELL. Yes, sir. It is unreasonable on the face of it and 

it precludes us from being effective in our job. 

Senator SPECTER. OK. Now, the question is why? Just as a result 

of the sheer numbers? 

Mr. MCCONNELL. Numbers and the dynamic nature of it. Most 

of our conversation today— 

Senator SPECTER. That’s the second time you’ve used the word 

‘‘dynamic’’. Tell me what you mean by that. 

Mr. MCCONNELL. Fast-paced, rapidly changing. 

Senator SPECTER. OK. 

Mr. MCCONNELL. And most of our discussions have been around 

terrorists. That’s a reasonable number of people. But the foreign intelligence mission of the community is foreign, so by definition it’s 

anything that is not American. When we have taken great pains 

in a number of cases to prioritize who we target and so on, we inevitably get it wrong. In the previous administration, we did a 

tiering mechanism, like 1 through 5. Five was absolute targets, got 

to cover them, got to be very exhaustive in our coverage. 

As it turned out, where U.S. forces were asked to engage or in 

some way be committed, it was almost all in the tiered areas that 

we weren’t covering. Examples include Haiti, Somalia, and even as 

far back as Panama. Those situations that pop up in which you 

have to be responsive and dynamic to respond to so you understand 

who the threats are, how they’re changing, what are the intentions, 

what are the weapons systems, how might they engage, what 

might cause them to back down. All that is a very dynamic issue. 

Senator SPECTER. So you’re saying you have to respond immediately? 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. Have you gone back to the FISA court to go 

through the procedures which you’re now using in targeting foreign 

persons overseas? 

Mr. MCCONNELL. Yes, sir. We submitted all the procedures to the 

court and they’re reviewing them now. 

Senator SPECTER. They’re reviewing them? 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. Would it be too burdensome to ask you to submit those procedures to the court every three months? 

Mr. MCCONNELL. They wouldn’t change, but that would not be 

a great burden. No, sir. 

Senator SPECTER. OK. 

Mr. MCCONNELL. The only thing I want to highlight is, if I’m in 

a position where the court has to rule on something before I can 

conduct a mission, we could never turn fast enough to allow us the 

flexibility. 

44 

Senator SPECTER. My suggestion would not be to deal with specific warrants where you’d have to go back, but only the procedures. 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. But if you did it every three months, wouldn’t 

it be reasonable, on the reapplication, to show the court what you 

have accomplished so that they could then consider the value of the 

program in deciding whether the procedures are sound? 

Mr. MCCONNELL. Sir, I would object to that because in my view 

it would now start to insert into the process an evaluation by the 

court for which it is not trained or prepared with in regard to the 

effectiveness of the foreign intelligence mission. Let me use a couple of examples. 

Senator SPECTER. Well, now, wait a minute. Are they any less 

prepared for that than they are for determining the importance on 

targeting a U.S. person in the United States? 

Mr. MCCONNELL. The purpose, in my view, of targeting a U.S. 

person in the United States is to ensure that we have adequate 

protections for a person in the United States. They will examine— 

first of all, the numbers are small, very small. They would have the 

facts of the situation. They could make a judgment and they could 

do enough research to make an informed judgment. If you’re talking about thousands, tens of thousands, or hundreds of thousands 

of things that are transpiring in a foreign context, my view is that 

they just couldn’t keep up with that process. There are 11 judges. 

One sits at a time. 

This community is made up of tens of thousands of people that 

engage in a very dynamic process, issuing lots of reports, lots of coordination, and lots of cross-queuing. So something that seems relatively innocuous on the face of it might turn out to be the most 

important thing we’re chasing. 

Example. Movement of nuclear material on a foreign flagship of 

convenience that is moving from the Pacific into the Indian Ocean. 

We may not even know that ship is under way, but at some moment there is some clue and we have got to be very responsive in 

how we would try to track back, where did it originate, what might 

it have on board, where is it going, who are the players, and so on. 

That’s just the situation we find ourselves in on a regular basis. 

That’s just one tiny segment of the community. So that’s what I 

mean by very dynamic and very interactive. We’re trying to solve 

a foreign intelligence problem that someone in the administration 

has a need for, tracking nuclear material, preventing weapons of 

mass destruction, negotiating with a country that might receive it, 

whatever. You can go on and on and on. 

Senator SPECTER. I get your point, Director McConnell. I am over 

time, but this is important and I want to finish it. 

Mr. MCCONNELL. Yes, sir. 

Senator SPECTER. I get your point on the dynamism of being able 

to act without getting court approval. But I’m on a very different 

point. I’m on the point of going back for renewal, say, in 3 months 

as to procedures, and at that time saying to the court, we want to 

continue this under these procedures, and this is what we’ve accomplished. 

45 

Because without telling you you can’t do it, but we want to evaluate it, you are reaching some U.S. persons overseas, and we have 

elaborate minimization, it seems to me that there is a good basis 

for having the court take a look at what you’ve done to see the intrusiveness, even though there are a lot of foreign people involved, 

but there are some U.S. people involved, as to whether it’s worth 

the candle. 

Mr. MCCONNELL. Sir, the reason I would object to it is, at the 

99.99 percent level, it’s totally foreign. So by having the court make 

that judgment, you are introducing a level of ambiguity and uncertainty that I don’t know how it would come out. So now let’s go 

back to the U.S. persons situation. In that case, if the court chooses 

to look at it, they’ve issued a warrant and post facto they want to 

review, or as was suggested by Senator Whitehouse, they look at 

minimization after the fact. That’s more of a manageable problem. 

But to have the court in a position of saying what you collected 

is or is not of sufficient intelligence value, in my view that’s not 

the appropriate role for the court. My worry is a level of uncertainty and ambiguity that I don’t know how it will come out. We 

do the mission for foreign intelligence. There are oversight committees on the Hill that look at that, can evaluate it in any cross-cut 

or any dimension, and we’re responsive to the administration, who 

has given these targets for foreign intelligence collection purposes. 

Senator SPECTER. Well, I’m not satisfied with this answer, but 

we have to move on. You and I will talk about this further. Thank 

you. 

Chairman LEAHY. I think it’s a good issue. I also will follow-up. 

I think Senator Specter has raised a very valid question and we 

should talk about that more, certainly before we get to the time we 

have to reauthorize any part of this Act. 

Admiral, I know you are an extraordinarily busy man and I appreciate you being here. We will have some follow-up questions. 

Some may have to be answered in classified form. Of course, we 

have provisions to handle that, as you know. You should also feel 

free, on some of the questions I may have, if you have a question 

on it, just call me. 

Mr. MCCONNELL. All right, sir. Will do. Thank you. 

Chairman LEAHY. I’m easily reachable. 

So now, thank you very much. We’ll set up for the next panel. 

Senator Feingold has offered to preside in my absence, and I appreciate that. He is also a member of the Senate Intelligence Committee, which will make it twice as helpful. 

Senator FEINGOLD. We will now turn to the second panel of witnesses, if they would come forward, please. 

Will the witnesses please come to the witness table and stand to 

be sworn in? Would you all please raise your right hand to be 

sworn? 

[Whereupon, the witnesses were duly sworn.] 

Senator FEINGOLD. Thank you. You may be seated. 

I want to welcome all of you, and thank you for being here with 

us today, and for your great patience while the committee questioned Director McConnell. 

46 

I ask that you each limit your opening remarks to 5 minutes, as 

we do have a fair amount to go through. Of course, your full written statements will be included in the record. 

Our first panel begins with James Baker. Mr. Baker is a lecturer 

at Harvard Law School, currently on leave from the Justice Department. Until January of 2007, he served as the head of the Office 

of Intelligence Policy and Review at the Department of Justice, 

which is the office that represents the government before the Foreign Intelligence Surveillance Court. 

In 2006, Mr. Baker received the George H.W. Bush Award for 

Excellence and Counterterrorism, the CIA’s highest award for 

counterterrorism achievements. 

Mr. Baker, you are, of course, welcome. Thank you for being here 

today. You may proceed. 

STATEMENT OF JAMES A. BAKER, LECTURER ON LAW, HARVARD LAW SCHOOL, FORMERLY COUNSEL FOR INTELLIGENCE POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, 

DC 

Mr. BAKER. Mr. Chairman, thank you very much, and members 

of the committee. Thank you for the opportunity to appear here before you today to discuss possible changes to FISA and the Protect 

America Act. 

I would just comment on my background, that in addition to 

what you mentioned, Mr. Chairman, I have prepared, reviewed, or 

supervised the preparation of thousands of FISA applications over 

the time period that you’re talking about. 

The Department of Justice has specifically approved my appearing here before the committee today, but let me emphasize that I 

am appearing here strictly in my personal capacity and that the 

views that I express do not necessarily reflect those of the Department or the administration. 

In the short time that I have, I’d just like to focus on a couple 

of brief points, Mr. Chairman. First of all, FISA, as originally enacted by Congress in 1978 and as amended up until the Protect 

America Act in August of this year, was extremely productive over 

the years. It permitted robust collection of foreign intelligence information, including actionable intelligence information, which 

means that the Intelligence Committee could take action on it to 

thwart the plans and activities of foreign adversaries, including 

terrorist groups. As a result, in my opinion FISA has proven very 

valuable during wartime. 

We did this in part by making robust use of FISA’s emergency 

provisions. I am happy to discuss those provisions and the procedures with you in response to questions, but I just would note that 

it may take some time to do that in order to give a proper description of how the system actually worked. 

In addition, FISA also permits us to disseminate foreign intelligence information appropriately within the U.S. Government and 

to our foreign partners. It allows us to use information acquired as 

evidence from a FISA collection in criminal trials, with the approval of the Attorney General. 

In addition, everyone within the system had the comfort of knowing that their actions were lawful and that they would not be subVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
47 

ject to lawsuits or criminal prosecution as a result of an action that 

they were taking in accordance with an act of Congress and a Federal court order. 

Let me also state that it seems to me that there’s a bit of a paradox here in the discussion that we’re having because the calls for 

FISA to be amended—the original FISA to be amended—came ultimately from the success of FISA itself. 

Because FISA had enabled the collection of vital, timely intelligence, including information about the activities of overseas terrorists, the intelligence community came to regard FISA as a critically important collection platform and it increasingly turned to 

FISA to obtain important foreign intelligence. 

FISA also expanded the understanding by other intelligence community elements of the value of certain types of collection. Growth 

in the targeting of foreign operatives over time resulted in the desire to change the law that we are discussing today. 

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

FISA or the Protect America Act, or make other changes to FISA, 

I would recommend that you ask the intelligence community for a 

full assessment of the value of FISA as originally enacted, or at 

least as enacted prior to August of this year. 

Let me just make a few brief comments about the scope of the 

original FISA. No means of collection were barred by the 1978 statute. In other words, all modern forms of communication were subject to collection under FISA. 

My written statement discusses some of the questions that have 

arisen regarding the state of technology in 1978, what Congress 

understood about that technology, and what it intended to cover 

when it enacted FISA, and what the law actually says. For the 

sake of brevity I will not repeat those here, but I will just say that 

they are complex questions that require additional research to answer authoritatively. 

At the end of the day, though, the real questions, it seems to me, 

are not regarding whether, or how, to modernize FISA and are not 

technological in nature. The real question at the end of the day is 

whether the government’s collection activities comport with the 

Fourth Amendment. 

The answer to that question will depend on many factors, including, but not limited to, the following. First of all, what is the identity and the location of the person or persons whose communications are collected and reviewed? 

For example, where is the target, U.S. or abroad? Who is the target, a U.S. person or a non-U.S. person? Whose communications 

are intercepted in addition? We’ve talked about that before. The 

committee talked about that before with respect to incidental communications, but it’s broader than that as well. What is the identity of these people whose communications are being collected? 

The next thing is, with what degree of confidence can you answer 

the questions that I have just posed? Do you really know where 

these people are? Do you really know who they are? 

In addition to those questions, there is another set that have to 

do, it seems to me, with the collection procedures that are in place. 

So, for example, who is the decisionmaker? That is, who is making 

48 

the decision about foreign intelligence collection before it begins? 

Someone from the executive branch, a Federal judge, for example? 

What level of predication is required—that is, how much paperwork and explanation is necessary to justify collection—and what 

standard of review should apply? Should it be probable cause, 

something lower, no standard at all? What should it be? 

Further, how particular should the approvals be? Should they be 

specific with respect to a particular phone number? Can they be 

more programmatic? How exactly should it work? In addition, what 

are the standards for acquiring, retaining, and disseminating foreign intelligence information? These are the minimization procedures you’ve just discussed at length. Further, how long can the 

collection run without being reviewed? 

The lower the level of approval and the lower the level of factual 

predication and the less specific the authorizations need to be, obviously the more quickly and more easily the intelligence community 

can start collection and sustain a greater volume of collection. I 

think that is what is meant by when someone says we need to 

achieve greater speed and agility in foreign intelligence collection. 

Again, the Fourth Amendment lies at the foundation of all these 

questions. When the government— 

Senator FEINGOLD. Mr. Baker, I’m going to have to ask you to 

conclude. 

Mr. BAKER. I’ll sum up very quickly. Let me just focus on this. 

There are Fourth Amendment interests at issue. The Fourth 

Amendment is implicated during the following situations: when the 

government targets U.S. persons or people in the United States, 

when it acquires, listens to, or stores and later examines, a communication to which a United States person is a party, or when it 

intercepts and scans the content of such a communication in order 

to determine who it is to, from, or about. 

Let me just say that when I say the Fourth Amendment is implicated, I do not necessarily mean that a warrant is required in all 

those situations, but the collection has to be reasonable when 

you’re collecting information about people who are protected by the 

Constitution. 

Mr. Chairman, thank you for your time. 

Senator FEINGOLD. Thank you. I regret our time limitations and 

appreciate your testimony. 

[The prepared statement of Mr. Baker appears in the appendix.] 

Senator FEINGOLD. Our next witness will be James Dempsey. 

Mr. Dempsey is no stranger to testifying before Congress. We are 

pleased to have him with us today. He is currently the Policy Director at the Center for Democracy and Technology, where he has 

been on staff since 1997. 

Prior to joining CDT, Mr. Dempsey was Deputy Director of the 

Center for National Security Studies, and before that Mr. Dempsey 

was Assistant Counsel to the House Judiciary Committee on Civil 

and Constitutional Rights, where he concentrated on oversight of 

the FBI, privacy, civil liberties, national security, and constitutional rights. He is also the author of a number of articles on privacy and Internet policy. 

Thank you for being here, sir, and you may proceed. 

49 

STATEMENT OF JAMES X. DEMPSEY, POLICY DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY, SAN FRANCISCO, 

CALIFORNIA 

Mr. DEMPSEY. Senator Feingold, Senator Specter, Senator Whitehouse, good afternoon. Thank you for the opportunity to testify at 

this hearing. 

As the committee well knows, the issue before Congress has 

nothing to do with terrorism suspects overseas talking to other people overseas. The debate for the past year has been about the communications between people in the U.S. and people overseas. 

Here is the dilemma. The National Security Agency needs speed 

and agility when targeting persons overseas. It should not be required—not be required—to get individualized orders when targeting non-U.S. persons abroad. Many of NSA’s targets overseas 

will communicate only with other foreigners, never affecting the 

rights of Americans. 

In addition, NSA can often not tell in real time who a foreigner 

overseas is communicating with, and obviously it can certainly not 

predict in advance whether a targeted person overseas will communicate with an American or not sometime in the course of a coverage. 

We recognize these concerns. However, it is also certain that 

some of the persons of interest to NSA overseas will communicate 

with people in the U.S. Some percentage of NSA’s activities targeted at people overseas will result in the acquisition of communications to and from American citizens, and those will be retained, 

analyzed, and in some cases, disseminated. 

So how can we give the government the flexibility, the speed, and 

agility it needs while protecting the rights of Americans whose 

communications are being intercepted and disseminated? Now, at 

this hearing so far I’ve heard a lot of progress being made and I’ve 

heard the outlines of an approach that is better than the approach 

in the Protect America Act along the following lines. 

First, use plain English, not the ambiguous and confusing language found in the Protect America Act. The DNI said he can’t 

even remember now why the word ‘‘concerning’’ was used in the 

legislation. The issue at stake concerns—and here is where I would 

focus—the government’s authority to acquire communications to or 

from non-U.S. persons reasonably believed to be outside the United 

States when those communications are acquired, in real-time or in 

storage, with the assistance of a communications service provider. 

Say it that way, plain English. That would clear up a lot of the concerns about physical searches, mail openings, et cetera. The DNI, 

I think, agreed that better language is needed. 

Second, is to focus, as the DNI says, on the rights of Americans 

regardless of geography, require a particularized court order when 

the government is targeting a U.S. person regardless of where the 

U.S. person is. Again, I heard the DNI say, at least in principle, 

that he accepted that proposition. 

Third, establish a procedure for the FISA court to review and approve in advance the procedures for ensuring that the persons 

being targeted abroad are reasonably likely to be non-U.S. persons 

outside the United States. Now, it should be a real judicial review 

50 

and not the clearly erroneous standard that’s in the PPA, a genuinely effective standard. 

By prior review—and I think this is where Senator Specter and 

the Director of National Intelligence had a little disconnect—we 

don’t mean a prior individualized warrant. We would say, though, 

that the court should look at the procedures for how, generally 

speaking, the targeting is done and also should review in advance 

the minimization procedures. 

Again, the DNI said that he would submit the minimization procedures to the court for review, not in a way that would interrupt 

their individualized targeting, but in a way that would protect the 

rights of Americans. Bringing the surveillance under a court order 

has numerous advantages. 

It would make the surveillance more likely to be found constitutional. It would provide companies with the greater certainty that 

they would get from a court order compelling their cooperation 

rather than just a letter from the Attorney General, and it would 

give the court ongoing jurisdiction to supervise how the minimization rules are being applied. 

On that point, the fourth element that I heard some beginning 

of agreement on, the DNI said they have a procedure at the analysis and dissemination stage—not at the collection stage, but at the 

analysis and dissemination stage they have a procedure for determining who is a U.S. person. 

That should be noted, recorded, and reported to the court, and 

at a certain point the court will decide that the focus of this investigation or the focus of this activity has now implicated the rights 

of an American to the extent that an individualized order may be 

required. 

Finally, a balanced solution would address exclusivity and immunity. The issue of future exclusivity must be addressed and resolved first, since it has to be made clear that service providers will 

not get an ongoing series of free passes for violating the statute. 

This approach addresses all of the concerns of the administration, while still providing the court approval and ongoing supervision that were the cornerstones of FISA. The DNI talked about 

the importance of flexibility. What I heard today, urging from the 

questioning, was a system of supervised flexibility, and that is 

where I think we should go. Thank you. 

Senator FEINGOLD. Thank you for your useful testimony, Mr. 

Dempsey. 

[The prepared statement of Mr. Dempsey appears in the appendix.] 

Senator FEINGOLD. Our next witness is Bryan Cunningham. Mr. 

Cunningham is an information, security, and privacy lawyer and a 

principal at the law firm of Morgan & Cunningham in Denver, Colorado. Mr. Cunningham has held senior positions in both the Bush 

and Clinton administrations. He served for 2 years as Deputy 

Legal Advisor to then-National Security Advisor Condoleezza Rice. 

Mr. Cunningham, please proceed. 

51 

STATEMENT OF BRYAN CUNNINGHAM, PRINCIPAL, MORGAN & 

CUNNINGHAM, LLC, GREENWOOD VILLAGE, COLORADO 

Mr. CUNNINGHAM. Thank you, Mr. Chairman, Senator Specter, 

members of the committee, and thank you for the opportunity to 

again address the committee on this important issue. 

Just one other background bio note I would make, is that I 

served for 6 years under President Clinton and 2 years under 

President Bush. Shortly after the disclosure of the terrorist surveillance program, a Democratic colleague and I published an op-ed 

piece in which we suggested that the eavesdropping debate we 

should be having would have three touchstone elements: 1) it 

would maintain the balance between civil liberties and national security that was enshrined in the original 1978 statute, but in ways 

that caught up with technological change, which in our view had 

clearly made the statute unworkable; 2) in doing so it would ensure 

that, while perhaps the methods would not be the same, the same 

civil liberties interests would be protected; 3) specifically it would 

provide a meaningful role for the courts in that process. I believe, 

Mr. Chairman, that the Protect America Act has taken significant 

steps in that direction, although it could use improvement. I commend the committee for continuing to carry on a sober debate such 

as recommended. 

Just a little bit of recap of history from my point of view. The 

presidents of both political parties since at least 1946 had conducted significant programs of warrantless electronic surveillance 

for foreign intelligence purposes, including in this country. 

As you know better than I, in the late 1970s following revelations 

about what I would call ‘‘true domestic spying’’ as opposed to what 

in my view is going on today, which is foreign intelligence collection, the Congress and the administrations of two parties reached 

a very good, as the Director said, balance between those legitimate 

interests. 

The means they chose to effect that balance between privacy and 

civil liberties on the one hand and national security, perhaps were 

sensible and enforceable at the time, but I think now, because of 

changes in technology that have been publicly discussed, that balance needs to be struck in a new way. I think the Protect America 

Act starts to do that. 

But I think we need to be clear about what we’re doing in modernizing the Foreign Intelligence Surveillance Act. My understanding of the original statute was that it attempted to strike the 

balance principally by requiring, as has been said here today, a 

warrant for targeted surveillance of Americans inside the United 

States and no warrant for targeted surveillance of foreigners overseas. 

Even in 1978, it was well understood, as it has been by all Congresses and presidents since, that in the course of targeting nonU.S. persons overseas there would be significant amounts of what 

is called in the law ‘‘incidental collection’’, that is, a foreigner talks 

to someone in the United States. Some of that is completely innocent, not of foreign intelligence value, gets minimized. Some of it 

is of foreign intelligence value and gets treated in a protective way, 

but can be shared around the community. 

52 

If we want to maintain that same bargain if you will, that same 

balance that was struck then and has been carried out over the 

last three decades under executive orders for collection targeted 

against persons overseas, I think we need to recognize that there 

will be this significant amount of incidental collection. 

And when opponents of the Protect America Act talk about millions and billions of new collection activities against Americans, I 

can only guess that what they mean is that because we’ve removed 

the FISA restriction against collection inside the United States 

when targeted against foreigners overseas, the volume is simply 

going to go up by virtue of that. 

If that is the objection, that’s a point that we should recognize 

and debate. But we should be straightforward about it, that if we 

intend to now have courts regulate that incidental collection, we 

are now rewriting the bargain that was reached in 1978 and we’re 

doing that during war time. Now, there may be legitimate ways to 

do that, but I think we need to recognize that that’s what we’re 

doing. 

Now, I said the Protect America Act took significant steps in the 

right direction, and I believe that. I also believe we need a more 

proactive, earlier role for the Foreign Intelligence Surveillance 

Court in the process of approving procedures. I think it needs to 

be clear that they have access to more data, although I don’t believe that court to be shy about asking for data when it needs it. 

I think we should work to eliminate ambiguous terms and better 

define the terms that are in the statute, including specifically the 

issue of ‘‘concerning,’’ as was discussed by the Director, and Senator Feingold, in your questions, and others’, and also we do need 

to, I think, do something about protecting better the service providers who carry out lawful instructions by the government, and 

also to recognize that it is career civil servants who are carrying 

out these procedures, not politically elected officials, and we ought 

to make sure that we fully support them. 

Finally, I would just say that I believe that there’s technology 

that’s available today that can solve many of the problems we’re 

discussing here, including minimization, retention, collection, and 

use of information. Thank you. 

Senator FEINGOLD. Thank you so much, Mr. Cunningham. 

[The prepared statement of Mr. Cunningham appears in the appendix.] 

Senator FEINGOLD. Our last witness will be Suzanne Spaulding. 

Ms. Spaulding’s expertise on national security issues comes from 

20 years of experience in Congress and the executive branch. She 

has worked on both the House and Senate Intelligence Committees 

and has served as Legislative Director and Senior Counsel to Senator Specter, the Ranking Member of the committee. 

She has served as the Executive Director of two different congressionally mandated commissions focused on terrorism and weapons of mass destruction, and has worked at the CIA. She is currently a principal at Bingham Consulting Group, and the immediate past chair of the American Bar Association’s Standing Committee on Law and National Security. 

Senator SPECTER. Mr. Chairman, might I add— 

Senator FEINGOLD. Absolutely. 

53 

Senator SPECTER.—a note about her outstanding service on my 

staff and on the Commission on Weapons of Mass Destruction 

where I served as vice chairman. 

Ms. SPAULDING. Thank you, sir. 

Chairman LEAHY. We’re lucky to have her here. 

Senator FEINGOLD. I agree. You may proceed. 

STATEMENT OF SUZANNE E. SPAULDING PRINCIPAL, 

BINGHAM CONSULTING GROUP WASHINGTON, D.C. 

Ms. SPAULDING. Thank you very much. Thank you, Senator Feingold, thank you Ranking Member Specter, members of the committee. I very much appreciate this opportunity to testify on 

changes to the Foreign Intelligence Surveillance Act, or FISA. 

In the 20 years that I spent working on efforts to combat terrorism, starting in the early 1980’s working with Senator Arlen 

Specter, I developed a strong sense of the seriousness of the national security challenges that we face and a deep respect for the 

men and women in our national security agencies who work so 

hard to keep us safe. 

We all agree that we owe it to those professionals to ensure that 

they have the tools they need to do their job, tools that reflect the 

ways in which advances in technology have changed both the nature of the threat and our capacity to meet it. 

They also deserve to have clear guidance on just what it is that 

we want them to do on our behalf, and how we want them to do 

it. Unfortunately, the newly enacted changes to FISA do not provide clear guidance and instead appear to provide potentially very 

broad authority with inadequate safeguards. 

I will highlight just a few key concerns in this brief statement. 

First, avoid changing definitions, particularly if something as fundamental as electronic surveillance. Because Section 105(a) defines 

out of FISA the acquisition of any communication when it’s directed against someone reasonably believed to be outside the 

United States, it removes any statutory protection that FISA might 

otherwise afford Americans whose communications might fall in 

this category. 

This means there is no statutory minimization requirement, no 

court review of procedures, no reporting requirement. Any executive orders, directives, or other internal policies that might continue to apply can be changed unilaterally by the executive branch. 

Keep in mind that Section 105(b), which does require some minimization in reporting, is an optional process that the Attorney General and the DNI may use if they want to compel the assistance 

of a third party. If they can intercept the communication without 

any assistance of a third party or don’t need to compel that assistance, they do not need to use those procedures in 105(b). 

Second, the words ‘‘notwithstanding any other law’’, which is how 

the new Section 105(b) begins, should always raise a red flag. 

These words mean that all the laws that regulate collection of intelligence inside the United States no long apply to activities under 

105(b). 

Those activities are potentially extremely far-reaching. Section 

105(b) appears to provide statutory authorization for the government to gather information on any kind of communication inside 

54 

the United States from U.S. citizens, so long as it is about someone 

who happens to be outside the United States at the time. 

It would appear to include intercepting U.S. mail between U.S. 

persons and the physical search of a computer for stored e-mails 

without regard to the physical search provisions in FISA. None of 

this intelligence collection has to be related in any way to terrorism. It applies to ‘‘any foreign intelligence’’, a very broad term. 

The Protect Act does require minimization procedures under 

105(b), but only the relatively permissive procedures that currently 

apply when a FISA judge has approved an application against a 

foreign power or an agent of a foreign power. In the case of AGauthorized surveillance under 105(b), what should apply are far 

more stringent procedures that currently apply when the Attorney 

General unilaterally authorizes surveillance under existing Section 

102 of FISA. 

Changes to FISA should be the narrowest possible to remove 

whatever impediment has arisen to using FISA. My phone company always seems to be able to determine where I am when I use 

my cell phone. They charge me a lot more when I use it overseas. 

Technology experts, FISA judges, current and former, can provide 

insights into what the government and communications providers 

can and can’t do, as well as what safeguards are most important 

to prevent abuse. This provides a basis for a legal regime that is 

much more narrowly focused, with precise procedures and safeguards to govern surveillance that involves persons inside the 

United States 

In addition, the role of FISA judges should not be minimized. As 

Supreme Court Justice Powell wrote in the Keith case, ‘‘The Fourth 

Amendment does not contemplate the executive officers of the government as neutral and disinterested magistrates.’’ Finally, Congress should seek a stronger commitment from the administration 

that it will actually abide by the law. 

[The prepared statement of Ms. Spaulding appears in the appendix.] 

Senator FEINGOLD. Thank you very much, Ms. Spaulding. Thank 

you all. 

We will do 5-minute rounds, which I will now begin. 

Mr. Baker and Ms. Spaulding, as we have already demonstrated, 

you both have a great deal of experience in the intelligence community. Why is it advantageous for intelligence professionals to have 

clarity and certainty in the laws that govern their activities, particularly when those activities affect the rights of Americans? 

Mr. Baker. 

Mr. BAKER. Well, because, as the DNI explained, what they do 

on a daily basis is fast-moving, it’s dynamic, it’s difficult. You’re up 

against a very difficult target. The system is populated with folks 

who are not lawyers. They can seek legal advice, but they are generally not lawyers, so you need to have clear rules of the road that 

they can turn to when they do have a question. First of all, that 

they can understand and that they can turn to when they have a 

question, and then understand them. 

Have them be in plain English, as Mr. Dempsey suggested. I 

mean, that’s always a good idea. So the danger is that folks under 

pressure, acting quickly with limited time, will confuse what is set 

55 

forth in the standard, will be too aggressive, or the other danger 

is, they won’t be aggressive enough. They won’t go and do what it 

is that they should do. So you have both of those things. That’s 

why you need clarity. 

Senator FEINGOLD. Thank you. 

Ms. Spaulding. 

Ms. SPAULDING. I think that’s exactly right. In fact, it was one 

of the issues that the National Commission on Terrorism, in 2000, 

looked very carefully at. It looked very carefully at the implementation of FISA and other authorities that the government had to pursue international terrorism, and reached the same conclusion, that 

there was a real national security cost in not having very clear 

guidance and clear guidelines, in large part because oftentimes 

then officials would not exercise the full scope of their authority, 

fearing that they would not know where that line was and they 

would step over it. But there are national security costs. 

Senator FEINGOLD. Could you give a couple of examples of how 

that would happen? 

Ms. SPAULDING. Well, I know one of the contexts in which this 

arose was in looking at the investigation authorities. It was a particular problem for the FBI in the counterintelligence and foreign 

intelligence context, as well as in the provisions for criminal investigations, where there were several attempts to issue clearer guidance to officers in the field because it was not clear to them exactly 

where the lines were in terms of what they could and couldn’t do 

at the various stages of investigation. What we found was, there 

were many, many instances in which they thought the line was 

short of where it was and they were not stepping up and doing 

things that the law actually allowed them to do. 

Senator FEINGOLD. Thank you. 

Mr. Dempsey, the Protect America Act will clearly result in the 

warrantless interceptions of the communications of Americans with 

individuals overseas. What are the Fourth Amendment rights of 

the Americans whose communications are intercepted under the 

Protect America Act, and is the Protect America Act unconstitutional? 

Mr. DEMPSEY. Well, I think it’s fair to say that the Protect America Act is of dubious constitutionality I think in the national security arena, we cannot afford legislation or authorities that are of 

dubious constitutionality. We want the kind of certainty, we want 

to not have to make every case into a potential litigation or a potential court challenge. 

There is no doubt that an American in the United States talking 

to somebody overseas has Fourth Amendment rights. You have a 

reasonable expectation of privacy in your phone calls, and that is 

regardless of whether it is a domestic phone call or a domestic-toforeign call. 

What I think the issue here is, how can we protect that Fourth 

Amendment right of the American, that privacy interest of the 

American, without going the whole route of a particularized, individualized, probable cause-based order when the intelligence agencies are targeting a non—U.S. person overseas? I don’t think that 

the Protect America Act comes close to striking that balance. 

Senator FEINGOLD. Thank you for that answer. 

56 

Ms. Spaulding, what message would it send if Congress were to 

grant retroactive immunity to private entities that allegedly were 

involved in the President’s warrantless wiretapping program? 

Ms. SPAULDING. Senator, I think it would send a terrible message, both to the American public and to private companies that 

might be asked in the future to help their government. I think it 

would send a loud and clear message that we are not serious about 

respect for the rule of law, and I think that would be very damaging. 

In this area particularly there is not the kind of transparency 

even that you have in the criminal context where the collection of 

information will ultimately be challenged if it is to be introduced 

into court, for example, in this area where secrecy is so imperative, 

it is equally imperative that we have these safeguards in place and 

the telecommunication providers become our last line of defense 

against abuse by the government. Granting retroactive immunity, 

I think, would send the wrong signal about how corporations 

should react when they’re asking to do something. It’s not burdensome for them to ask the government to assure them that what 

they’re being asked to do is lawful. That’s all the law requires. 

Senator FEINGOLD. Thank you very much. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Ms. Spaulding, you have testified about the changeability of the 

executive order. Would you favor a statutory provision which would 

require the FISA court to review the targeting on probable cause 

for issuance of a warrant against a U.S. person overseas? 

Ms. SPAULDING. Senator, I certainly think there is value in putting the requirements that you want the government to follow in 

the statute. To the extent that that is currently a requirement in 

the executive order and the executive branch is following that and 

it has not presented any national security problems, I think it 

would be very wise to put it into statute. 

Senator SPECTER. So you would rely on the Attorney General, 

contrasted with putting it to the FISA court, to determine probable 

cause, and therefore a warrant? 

Ms. SPAULDING. I’m sorry. No. Right. Your question was rather 

than simply requiring the Attorney General, should we impose the 

FISA court. Again, it seems to me that there is an important role 

for the FISA court in protecting the Fourth Amendment rights of 

U.S. citizens. Clearly, we rely upon them to do that inside the 

United States. 

Senator SPECTER. Is that a ‘‘yes’’ answer? 

Ms. SPAULDING. I think it is a ‘‘yes’’ answer. Yes, Senator. The 

Fourth Amendment continues to protect Americans when they are 

overseas. 

Senator SPECTER. Would you take on a little staff assignment 

here and give us the language you’d like to see on minimization, 

and also to protect, without ambiguity, a U.S. person overseas for 

having collateral collection of private matters while in the United 

States? 

Ms. SPAULDING. Yes, Senator, I certainly will. 

Senator SPECTER. OK. 

Ms. SPAULDING. Always happy to be your staffer. 

57 

Senator SPECTER. Thank you. There will be some supplemental 

assignments, Ms. Spaulding. 

[Laughter.] 

Mr. Baker, you were quoted in The Hill today as saying that ‘‘in 

no kidding situations the FISA court can act very fast, on a very 

prompt basis.’’ That may undercut what Director McConnell has 

talked about, the dynamics which require executive action without 

court intervention. 

Do you see any way, based on the extensive experience you’ve 

had with the Federal Government, where there could be more FISA 

court involvement on targeting people overseas? 

Mr. BAKER. Absolutely. I think there is a way to work the FISA 

court into the system for dealing with folks overseas, targets overseas, and at the same time not cripple the ability of the intelligence 

community. 

Senator SPECTER. How would you do it? 

Mr. BAKER. Well, it’s complicated. I mean, there are a number 

of ideas that have been set forth today. For example, one thing 

could be to have the Attorney General make an application to the 

FISA court that is not talking about individualized, specific warrants, but that would be targeting non-U.S. persons overseas, and 

have the FISA court review the targeting decision as a general 

matter, review the means of collection. 

Senator SPECTER. Let me ask you, because I have got less than 

2 minutes left, to do a little drafting as to how you would suggest 

we get the FISA court more deeply involved. 

Mr. BAKER. I am also happy to take assignments. Yes, sir. 

Senator SPECTER. OK. Thank you. 

Mr. Dempsey—and I’m going to ask you the same question, Mr. 

Cunningham—on the issue of having the FISA court evaluate the 

success of the targeting overseas without judicial intervention in 

advance, do you agree with my thought, Senator, that it’s relevant 

to know how successful the administration has been, the Director 

of National Intelligence has been, in collecting valuable information 

without any judicial supervision, in evaluating the adequacy of the 

procedures employed by NSA? 

Mr. DEMPSEY. Well, I think what you were talking about was in 

a way a return on service, which is, we’ve given you this authority, 

and it may be a blanket authority to target at will, so to speak, 

with flexibility and speed, persons overseas. But then there should 

be a report back to the court on, how is it going? Are you primarily, 

in fact, collecting persons overseas? We know that it is probably 

going to be rare that they are talking to people in the U.S., but 

how often after analysis did you conclude— 

Senator SPECTER. Is that a ‘‘yes’’ or a ‘‘no’’ answer? 

Mr. DEMPSEY. That’s a ‘‘yes’’. That is a ‘‘yes’’. 

Senator SPECTER. Mr. Cunningham, do you think there ought to 

be some special reporting back to the court where there’s information gathered from people in the United States, even though the 

targeting might be outside the United States? 

Mr. CUNNINGHAM. Well, Senator, I think there are two aspects 

to that. 

Senator SPECTER. Take your time, because I will not ask any 

more questions. My red light is on. 

58 

Mr. CUNNINGHAM. I think there are two aspects to the answer. 

One, is the constitutional, legal one. As you know, courts have almost never been involved in supervising the collection of foreign intelligence overseas, so as a constitutional matter I think there is 

a question as to whether or not we want to initiate that. However, 

as a policy matter, as a good government matter, I do think that 

there should be, as I suggested in my opening statement, a more 

robust role for the court in overseeing the process. 

But where I would disagree with you, respectfully, Senator, is I 

don’t think the court can be in a position independently to evaluate 

the foreign intelligence value of the information. Was it helpful to 

conducting our foreign policy, did it stop attacks? What I think 

they could be, and should be, involved in is—and by the way, one 

way to maybe solve that problem would be to have the DNI submit 

an affidavit, much like in other FISA contexts, that just asserts 

that there is foreign intelligence value and then he’s held accountable for the accuracy of that. 

But the things I do think the court ought to be able to look at 

in reauthorizing these procedures and the collection is, for example, 

how has the scope of the intercepts really worked? Are they collecting an unexpected volume of communications of Americans in 

the United States versus the things they’re really targeting? How 

many errors have been made? What corrective procedures should 

there be in the process? I do think the court could meaningfully supervise that process. 

Senator SPECTER. Thank you very much, Mr. Baker, Mr. 

Dempsey, Mr. Cunningham, and Ms. Spaulding, for taking the time 

to prepare statements and for waiting all morning to testify. Thank 

you. 

Senator FEINGOLD. Thank you, Senator Specter. 

Senator Whitehouse. 

Senator WHITEHOUSE. I’d like to join Senator Specter in our 

thanks for the work that you’ve done. Ms. Spaulding, I thought 

your analysis was particularly thoughtful and helpful in tracking 

the actual plumbing, if you will, the legal, legislative language of 

the statute and where it overshot and where it missed. 

It strikes me, I know there are witnesses from different backgrounds and orientations here, and we’ve just had Democrats and 

Republicans alike ask questions, we’ve had the DNI here. What I’m 

a little bit surprised by is how everybody seems to have come into 

an accord about where we need to be. There really does seem here 

to be a fairly sensible path that is relatively well illuminated by 

the exchange that took place between the members and the DNI, 

and what we’ve heard from all of you here today. Does that come 

as a surprise? 

Mr. CUNNINGHAM. Well, Senator, just speaking for myself, all 

four of us have known each other in various capacities and worked 

together for a very long period of time, and I think have a lot of 

respect for each other. So I’m not terribly surprised. I would highlight one, I think, difference that I’m quite certain exists between 

folks on the panel, which the committee ought to think about for 

the future. 

That is, under the Fourth Amendment, when you’re talking 

about surveillance directed at targets overseas but which may—or 

59 

will, I guess—intercept certain communications of people in the 

United States, the difference between what I would call programmatic review and approval by the court, where the court supervises the kind of things I was talking about with Senator Specter, versus the requirement to get individual, particularized warrants in advance, I think that’s probably worth exploring because 

I think we may have some differences on that. 

Senator WHITEHOUSE. Although I suspect fewer than you imagine. 

You said that there was a question about the scope of the Fourth 

Amendment when an American travels outside the boundaries of 

the United States. I agree that the decisions, at least that I have 

read, leave that an unanswered proposition. 

Is that something that we should try to pin down or is it best 

to simply operate by analogy, create protections akin to those that 

are longstanding under Title 3, and then wait for the judicial process to eventually come through with decisions that further define 

the rights of an American traveling abroad? There are obviously 

less than at home, but it’s not clear how less, at least from the 

point of view of the judicial decisions. I was surprised at how vague 

the law is on that question. 

Mr. DEMPSEY. Well, Senator, I think that my reading of the current state of law is that at least an American citizen, and maybe 

a U.S. person abroad, has the protection of the Fourth Amendment 

in the sense that the reasonableness clause of the Fourth Amendment applies to an American abroad, but the warrant clause does 

not. 

Senator WHITEHOUSE. But the warrant requirement doesn’t. 

Mr. DEMPSEY. Which was the holdings of the cases so far. Now, 

that doesn’t mean, as Senator Specter and others were going, that 

Congress could not give a court jurisdiction to issue a warrant for 

surveillance abroad. In fact, at one point the Administrative Office 

of the U.S. Courts considered such a proposal for, I think, for a 

Rule 41— 

Senator WHITEHOUSE. It was actually my suggestion. 

Mr. DEMPSEY. That was your suggestion? 

Senator WHITEHOUSE. That is one of my suggestions in this process. 

Mr. DEMPSEY. I thought it had been previously floated and it 

hadn’t gone forward. But I think that I heard sort of consensus on 

that. The DNI said he wanted to obviously see the language. I 

think that’s the right direction to go. 

Senator WHITEHOUSE. Once we’ve gotten to the point of the court 

being the right direction to go, when I did surveillance in the law 

enforcement context, what we needed to prove was that there was 

probable cause to believe that the individual target was engaged in 

a specified violation of the laws of the United States or the State, 

depending on who you were doing. In this case, the standard is different. The Attorney General is required to opine that there is 

probable cause to believe that the target is an agent of a foreign 

power. Is that the correct standard, and where does it come from? 

Mr. DEMPSEY. Well, that’s the standard in Executive Order 

12333, and that’s the one that the administration is living by, with 

60 

the Attorney General making that decision. So in essence, all we 

do— 

Senator WHITEHOUSE. Does it have august history? Is that language that was crafted from other statutes and goes way back? 

Mr. DEMPSEY. Well, I think ‘‘agent of a foreign power’’ has origin 

in the Keith case. I think for now, I think it’s good enough. 

Senator WHITEHOUSE. Ms. Spaulding, you were nodding your 

head. 

Ms. SPAULDING. I was just saying it is. It’s in a footnote in the 

Keith case. Really, where the Keith opinion is noting what it is not 

covering in the case, because it was a case of purely domestic, no 

indication of any international or foreign connection, they said. So 

our decision here is not addressing one way or another how this 

would apply if we were dealing with foreign powers or agents of 

foreign powers. That’s where the language came from. 

Senator WHITEHOUSE. May I ask one final question, Mr. Chairman? I know I’m over my time. 

Senator FEINGOLD. Yes. Go ahead. 

Senator WHITEHOUSE. One of the things that has struck me, as 

I’ve been involved in this or other contexts than you all have been, 

as technology has changed, the intrusion that the search warrant 

effects into somebody’s privacy has expanded. Back when the 

founding fathers dreamed this up, the sheriff went into your house, 

he rummaged around, he grabbed the evidence that he needed. It 

was taken to the courthouse, it was used in the trial, and it was 

either disposed of or returned, end of story. 

Then comes the Xerox machine. Now the sheriff or the police officer goes into the house, he grabs the relevant information and 

makes a copy of it, returns it when everything is done. And still 

in the file someplace down in the dusty basement of a courthouse 

is the stuff that was taken from your house, hard to find. 

Now we get to the electronic age. Now they take it and they scan 

it and it goes into a data base, and the live intrusion into the house 

that was over and concluded back when the founding fathers wrote 

this, is actually preserved electronically forever, not only for those 

officers and the people in the case to look at, but for anybody who 

can have access to it to look at. 

I’m interested in any thoughts that you may have. I’m opening 

a large discussion right now. But if you wouldn’t mind, for the 

record, pointing me to things that you think discuss this issue intelligently and are things that we should consider as we continue 

to move into a more electronic age. 

I think that the people who wrote the warrant requirement into 

the U.S. Constitution would be surprised to see the preservation of 

data that now exists and the research that continues to be done, 

hyphen searches that can be done once that materially has been 

grabbed once properly, but then stored. And I don’t mean just in 

the intelligence context. This is just as true of an FBI, an ATF, Secret Service, or other search as it is in the intelligence context. A 

quick reaction, and then I’m holding everybody here. 

Mr. BAKER. If I could, just briefly, Senator. I think you’ve put 

your finger on a very important point. But what I’d say is, although 

technology presents us with certain problems with respect to privacy, certain issues and concerns, technology also presents us with 

61 

certain solutions, certain tools that we might use to be able to do 

this. I mean, this is going to be— 

Senator WHITEHOUSE. It’s our job here to create those, to require 

the implementation of those tools, I guess. 

Mr. BAKER. Tools. But I’m talking about technological tools that 

can be used to assist us in that way. What I would suggest or recommend is getting a briefing, perhaps, from the intelligence community on some of the minimization procedures that are in place 

now generally speaking and some of the changes that are afoot. 

You might find some of those interesting with respect to dealing 

with some of these issues. 

If I could just go back to the prior question just very briefly, I 

would just signal a note of caution with respect to changes that you 

might want to make with respect to activities vis-a-vis Americans 

overseas, because there you need to be very careful with what 

you’re doing and how you’re impacting the activities of our intelligence officers and employees overseas. The overseas environment 

is very different from the domestic environment, when you’re literally on the ground and doing things. There is legislative history 

on this. Congress has historically been concerned about this, but 

shied away from trying to legislate in this area because it is complicated. I’d be happy to provide— 

Senator WHITEHOUSE. Yes. But what is not complicated about it 

is the statute that says that it’s no longer electronic surveillance 

if it is a person reasonably believed to be outside the United States, 

and there’s no FISA court restriction on a group of people that is 

that broadly defined. 

As Admiral McConnell noted, that could include our troops serving in Iraq. I don’t think moms and dads who send their sons over 

to serve in Iraq have any expectation that their son can have their 

e-mails, their telephone calls listened in to by the U.S. Government, willy nilly, without a warrant, without any protection. Ditto 

a family that takes a vacation down to Mexico, or somebody who 

goes across the Canadian border, or somebody who goes to Italy or 

Ireland to visit their family. 

We have a strong expectation that when an American travels, 

there is a significant panoply of rights that comes with them, and 

that has not yet been well defined. Unfortunately, the definition in 

the Protect America Act is non-existent. I mean, it’s just, as soon 

as you step over the borders, you’re all done. We don’t care. You’ve 

got no rights, you’ve got nothing. 

So you have to look to other places to find those protections, like 

the executive order. But in this administration, who knows? It 

might be a secret executive order in somebody’s man-sized safe 

that we don’t even know about, you know. 

Senator FEINGOLD. I’m going to move into another round myself, 

here. 

Mr. Baker, as you’ve already indicated, many people are concerned with the potential breadth of the Protect America Act. I appreciate that Mr. Weinstein has sent a letter to Congress stating 

that the administration would not rely on some of these interpretations. But setting aside his letter for now, is it possible to read that 

law to permit a warrantless physical search or business records 

search in the United States? 

62 

Mr. BAKER. It’s possible. 

Senator FEINGOLD. And in your experience, do government lawyers ever read statutes aggressively? 

Mr. BAKER. Well, it depends on who you speak to. There are lawyers in the community that take very aggressive stances on particular legal questions. It is late in the day, it’s on a Friday 

evening, it’s 5:00, something has to happen right away. That goes 

back to my earlier point about clarity and simplicity in the law. 

You put the folks who have to make a decision in difficult situations, if the law can be read in a certain way, it becomes very hard 

to say no to that kind of suggestion. 

Senator FEINGOLD. As has been noted, the language in the PAA 

that has received a lot of criticism is where it authorizes the 

warrantless acquisition of information ‘‘concerning’’ people outside 

the United States. Do you see any justification for using the phrase 

‘‘concerning’’? 

Mr. BAKER. Well, it gives you more flexibility. It’s a term that 

gives more flexibility. But it implies more flexibility, maybe is a 

better way to say it. If they had used the word ‘‘targeting’’, which 

I think is probably a better word than either ‘‘concerning’’ or ‘‘directed at’’, quite frankly, but if you use the word ‘‘targeting’’, targeting is a word that has significance. It carries weight in the intelligence community. Folks generally know what that means. 

Senator FEINGOLD. So you would not recommend using the term 

‘‘concerning’’? 

Mr. BAKER. ‘‘Concerning’’ is a word that I think is perhaps of use. 

As I said earlier, is as a matter of concern. 

Senator FEINGOLD. And should be eliminated in any more permanent version of this law. 

Mr. BAKER. I think there are better and clearer words that could 

be chosen. 

Senator FEINGOLD. OK. 

Mr. Dempsey, your comment on that? 

Mr. DEMPSEY. I agree entirely. I think we have passed beyond— 

hopefully passed beyond—the language of the Protect America Act 

and are now working to come up with something that is clearer. 

Senator FEINGOLD. Ms. Spaulding, on that point? 

Ms. SPAULDING. Absolutely. I agree, Senator. 

Senator FEINGOLD. All right. 

Ms. Spaulding, earlier today Director McConnell acknowledged 

that the Protect America Act would authorize the bulk collection of 

all communications originating overseas, including communications 

with Americans, if it were technologically possible to do that. 

Should we be concerned about that? 

Ms. SPAULDING. Well, I thought it was interesting. The Director 

said two things. One, he seemed to say that it was not technologically feasible, but he also said that it would have to be within 

the definition of foreign intelligence or for foreign intelligence purposes. 

And certainly I think as a matter of resource dedication, that is 

very likely the case. However, again, as a matter of statutory interpretation, 105(a) does not require that it have anything to do with 

foreign intelligence or be for foreign intelligence purposes. It simply 

defines all of those communications out of those statutory protecVerDate Nov 24 2008 10:49 Nov 30, 2009 Jkt 053358 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53358.TXT SJUD1 PsN: CMORC
63 

tions. So, it certainly would enable or not put any restrictions on 

the bulk collection. 

I’m not sure that I have, necessarily, concerns with the bulk collection overseas of communications. I think where it really becomes 

important, obviously, is when you look at how you use that information. At what point do you dip into it? What kinds of searches 

can you conduct, when you start to conduct searches of all that information using U.S. person names, for example? What are the restrictions on your ability to retain that information, to disseminate 

that information? That’s where I think all of the safeguards and 

protections that we’ve talked about today and elsewhere are very 

important. 

Senator FEINGOLD. Thank you. 

Mr. Baker, as a general matter, when this committee undertakes 

an overhaul of the statute, members are likely to examine judicial 

opinions or government briefs to understand how courts and government lawyers have interpreted the law thus far. Do you think 

that it would be helpful to this committee, in its consideration of 

changes to FISA, to understand fully how the Foreign Intelligence 

Surveillance Court and the executive branch have interpreted that 

statute? 

Mr. BAKER. As a general matter, yes, consistent with the national security needs of the United States. 

Senator FEINGOLD. Well, then do you think as a matter of course 

that Congress should have access to any significant legal decisions 

made by the FISA court in any form, as well as associated pleadings, which as you know often contain important legal arguments? 

Mr. BAKER. I believe the significant legal opinion requirement is 

already in law. I believe that’s already in FISA. 

Senator FEINGOLD. Senator Whitehouse, do you have anything 

else? 

Senator WHITEHOUSE. That’s all. 

Senator FEINGOLD. OK. 

Well, I want to thank you all. You’ve been terribly patient. This 

has been an excellent hearing today. I thank you all. That concludes the hearing. 

[Whereupon, at 12:49 p.m. the hearing was concluded.] 

[Questions and answers and submissions for the record follow.] 

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