Hearing of the Senate Judiciary Committee - Strengthening FISA (Panel 1)
Statement
Hearing of the Senate Judiciary Committee - Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security? (Panel 1)
BREAK IN TRANSCRIPT
SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman.
Admiral, good to see you again.
ADM. MCCONNELL: Thank you, sir.
SEN. WHITEHOUSE: Some of what we're going to discuss will be well-plowed ground between the two of us because we've had these discussions in closed sessions, but I think it's important to go over it again in a public session because it's 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 we'd 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 3 surveillance that takes place in the United States right now, such as the senator from Alabama mentioned a moment ago.
In that context, it's 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?
ADM. MCCONNELL: Yes, we could, in a foreign context. Of course, if it's in the United States, it's -- (inaudible) -- warrant.
SEN. WHITEHOUSE: (Inaudible) -- that's covered by existing law.
ADM. MCCONNELL: Right.
SEN. 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's the magic phrase in the statute. Correct?
ADM. MCCONNELL: That's correct.
ADM. MCCONNELL: 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?
ADM. MCCONNELL: You could interpret it that way.
SEN. 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?
ADM. MCCONNELL: That's correct.
SEN. 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 -- doesn't get to make that determination on its own.
ADM. MCCONNELL: Yes, sir. But you -- what you just shifted to was a domestic situation where you have warrant. And what I would highlight is in the vast majority of the situations that would involve this community, we're targeting a foreigner for which there is no warrant, so it's a little bit --
SEN. WHITEHOUSE: I agree, but I'm talking about where you're targeting an American who happens to be abroad. That's the category we're talking about here.
ADM. MCCONNELL: Okay.
SEN. WHITEHOUSE: In that category, as I understand it, you have agreed that the executive order, assuming the language is all appropriate and doesn't 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?
ADM. MCCONNELL: Sir, that's a possibility, and as we've 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 if given it doesn't have any unintended consequences, I personally would have no objection to that.
SEN. 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?
ADM. MCCONNELL: I would.
SEN. WHITEHOUSE: Okay.
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 superior 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 the target -- when you're targeting somebody overseas and they call an American, that is also protected by minimization procedures. Correct?
ADM. MCCONNELL: That's correct.
SEN. 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're under, is not only enforced by the agency itself, but consistent again with the separation of powers of 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?
ADM. MCCONNELL: That's my understanding.
SEN. WHITEHOUSE: That doesn't 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 write in that order --
ADM. MCCONNELL: That's correct.
SEN. 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?
ADM. MCCONNELL: You just introduced a level of complexity and uncertainty that I would say, I'd be happy to look at it. Now, what do I mean by that? In every case where there's Title III, in every case, a court has already agreed in advance that you're going to conduct a 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's foreign intelligence, foreign threat to the country. So the way you described it, while it can sound reasonable, might have 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 --
SEN. WHITEHOUSE: That's 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 weren't complying with minimization -- we've had unfortunate incidents about the national security letters, and the rules just weren't complied with. It is helpful, I think, and it's salutary, for the executive branch officials discharging a responsibility like that to know that a court can look in. And whether it's the inspector general reporting to the court or whether there's some -- but I do think that it's 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.
ADM. MCCONNELL: Yes, sir, and when we discussed this before, the same answer -- happy to sit down, take the language, look at it, 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?
SEN. WHITEHOUSE: Yeah, thank you.
ADM. MCCONNELL: And so we both satisfy ourselves that we're protecting Americans and we're not impacting our foreign intelligence mission. And I'd be happy to do that.
SEN. WHITEHOUSE: Mr. Chairman, I think if we're thoughtful about going about this the way the admiral has suggested, we'll 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.
BREAK IN TRANSCRIPT
Source