Justice Department Briefing on FISA Authority of Electronic Surveillance

FOR IMMEDIATE RELEASE   OPA

WEDNESDAY, JANUARY 17, 2007     (202) 514-2007

WWW.USDOJ.GOV                                                            TDD (202) 514-1888

TRANSCRIPT OF BACKGROUND BRIEFING BY SENIOR JUSTICE DEPARTMENT OFFICIALS

ON FISA AUTHORITY OF ELECTRONIC SURVEILLANCE

WASHINGTON, D.C.

2:33 P.M. EST

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Hi. This is (Senior Department of Justice Official). We're speaking on background as senior Justice Department officials. I think everyone has the Attorney General letter he sent up to the Chair and Ranking Member of the Judiciary with copies to the Chair and Ranking Member of Intel.

And the Attorney General in the letter is informing these members of Congress that we've now obtained orders from -- approved by a judge of the FISA Court that will enable the government to target for collection international communications into or out of the United States, where there's probable cause to believe that a party to the communication is a member agent of al Qaeda or affiliated groups.

And as a result of receiving these orders approved by a FISA judge, electronic surveillance that was occurring as part of the terrorist surveillance program that the President has previously described, will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, the FISA Court.

And the President has determined based on advice from the Director of the National Security Agency and the Director of National Intelligence that with these orders, we are able effectively to undertake the surveillance that's necessary to protect the country from the terrorist threat.

These orders can provide the speed and agility that is needed and that was available under the terrorist surveillance program. And in these circumstances, as a result of the approval of these orders, the President has determined that he will not be reauthorizing the terrorist surveillance program when the current authorization expires.

So that is the news that the Attorney General has conveyed now to the Judiciary Committees and Intel Committees. And we're making it public obviously because, we wouldn't ordinarily do that. We don't ordinarily (audio gap) FISA orders, and we don't ordinarily talk about intelligence programs like this, but obviously, this is an issue that's been the subject of much public debate and debate on the Hill as the result of press reports, et cetera. So the President has determined that it's appropriate to make this announcement publicly.

So I'm happy and (Senior Department of Justice Official) here is happy to take any questions you may have.

QUESTION: Is the orders authorizing the government, is that a standing order, or does that mean you still have to seek a warrant every time you want to use the program?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I really can't get into the particulars of the orders, but just like any orders from the FISA court, they're for a period of time. These are orders for 90 days. There's more than one order. And these orders give us what we believe we need to effectively conduct the surveillance that's needed and that's described in the letter.

QUESTION: But they're orders sought for specific individuals, or are kind of standing -- standing permission to use this authority on whomever you deem it necessary?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I'm really not in a position to describe the classified details of the orders.

I will say that these are not -- these orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court.

I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court.

These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court.

QUESTION: Can we then interpret what you're saying as meaning that this is not a blanket authorization for the activities?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the letter describes, there's still the requirement that there's probable cause to believe that one of the parties of the communication is an agent or member of al Qaeda.

QUESTION: So does there have to therefore be some sort of finding in each specific like application to conduct some surveillance just so that there is al Qaeda connection?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Again, I'm really am not in a position to describe the mechanics of the orders and to get into the details about what is or isn't available under the FISA statute, because it really does say something about the intelligence activities involved.

But I will say that the probable cause determinations we're talking about are subject to review and approval by the (audio gap).

QUESTION: But (Senior Department of Justice Official) --

QUESTION: How do you make the determinations in the first place, please?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Again, the surveillance is approved by the FISA court. Beyond that, I'm not going to discuss the specifics of the order.

QUESTION: (Senior Department of Justice Official), if I can just try one more time, why is the -- I mean, we already know that the FISA court issues warrants in all kinds of other cases that are individualized. How is it a classified -- how is it a big secret as to whether these orders that you're talking about are individualized or broader than that?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let's just say I'm not in a position now to talk about the specifics of how things will happen under particular orders, because that really talks -- that really provides a lot of information about (audio gap) of what we're doing, the capabilities we have under the FISA statute.

I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General's letter. And I think beyond that, I'm not going to get into specifics.

QUESTION: I'm sorry. You --

QUESTION: What has changed here? What has changed that allows you now allows the FISA court to approve this on whatever basis?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don't know that anything has changed. First of all, let me say that we continue to believe as we've always said and as we've explained at length that the President has the authority to authorize the terrorist surveillance program, that he has that authority under the authorization for the use of military force and under Article II of the Constitution. That's not changing.

These orders, however, are orders that have taken a long time to put together, to work on. They're orders that take advantage of use of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court. But it's a process that began nearly two years ago, and it's just now that the court has approved these orders.

QUESTION: This is Peter Tomlin. How is this different than going to the court for the warrants before 9/11, which you had the authority to do? I mean, what is different than just the regular statute?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, I'm not, I'm really not going to talk about the particulars of how these orders may differ from prior orders.

I will emphasize that the FISA court, the judge of the FISA court who approved these orders, specifically found that they meet all the requirements of the FISA statute.

QUESTION: If it was necessary to go outside the FISA court for national security when the terrorist surveillance program began, why is no longer necessary?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as I think the President has made clear all along, the question is always how can you obtain the speed and agility that intelligence officers needed to detect without delay these critical communications coming in and out of the United States and to conduct the surveillance that was needed to protect the country. That was always the issue.

It's not a simple question of fitting that within the FISA statute. And this is a project, again, that we've been working on for some time.

QUESTION: I want you to back for a moment to when this process started. Can you give us an indication of whether the court approached you after learning about this process, or did you approach the court and say, hey, we're doing this, and did the court give any indication that it thought the program was appropriate or -- under the Constitution?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as indicated in the Attorney General's letter, we here in the Department of Justice began to look at it, and so, therefore, ultimately we approached the court with it, and the court has now approved it.

One thing I really don't want to do is talk about our process before the court or our communications with the court. And we don't -- we have a policy of not talking about the FISA process and the FISA court.

So I don't want to characterize communications with the court or the court's view on this or that. But it is fair to say that we initiated looking into this issue into the court, and it's been a long process, but last week --

QUESTION: I have a question. How many orders have been issued and how many U.S. citizens are subject to them?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: It's more than one order. That's all I will say.

QUESTION: How would you describe the --

QUESTION: What about the U.S. citizens, though?

QUESTION: How --

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the letter describes the communications that are the subject here, it's similar to what the terrorist surveillance program covered.

QUESTION: You seem to in the letter to the Intelligence committees, you seem to suggest that the speed with which they are able to approve warrants is a factor in what you have -- what you're announcing here today.

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, it certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we're achieving.

So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn't be any significant operational impact, continue to do everything we needed to do.

QUESTION: Just a moment. We're having trouble hearing what you're saying because somebody keeps breathing into the phone. Please don't make noise into the phone. It cuts the other people off. Sorry. Go ahead.

MODERATOR: Actually, Pete, real quick, I think maybe what would be helpful is if everybody could put their phone on mute. That might actually help cut down some of the static and you can hear Pete better. Also for those, it seems like we've had some join over the last 10 minutes. I just want to reiterate that this is a background call with Senior Department of Justice Officials.

QUESTION: Could you describe what the FISA court's continuing role over this program will be? Just without getting into specifics, what will their role be going forward? What will they actually do now?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, the orders are approved by a judge of the FISA court for a period of 90 days. As is usual with FISA orders, the judge will remain involved very closely in supervising the order, and everything that happens under the order is subject to the review and approval of the judge.

QUESTION: Who makes the determination of probable cause here? Is it the judge that has to approve that there is probable cause in each individual circumstance?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, there are probable cause requirements under the FISA statute that the FISA statute requires that the judge make findings as to the probable cause basis, in order to assert jurisdiction under the FISA statute, those findings have been made. Statutory probable cause findings have been made by the judge. And again, all surveillance, all collection of communications that may occur under these orders will be subject to the approval of the court.

QUESTION: So each individual case, the judge has to make a probable cause finding, it's not an executive branch official who can make that determination?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: There are probable cause findings required by the statute that the judge has to make, and he has made those findings.

QUESTION: You say the judge has already made essentially a blanket probable cause finding. Is that correct?

VOICES: No.

QUESTION: Well, that's what he seems to be saying.

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: That's not an accurate statement.

QUESTION: Okay.

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: But beyond what I'm saying, I'm not really going to get into the specifics of how the order is configured and how the operation under the orders --

QUESTION: Well, let me ask it this way. What are the substantial advantages referred to in the third paragraph of the letter?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, there are some advantages that I can't get into because they have to do with the order itself and operations under the order. But apart from that, I think they're just generally speaking clear advantages with -- provided it's consistent with the requirements of national security and the operational needs of the program -- to have a judge review and approve surveillance under the program.

There's obviously an advantage in having all three branches involved. As we've said all along, if it could be done (audio gap). Obviously this issue of the terrorist surveillance program is one that has been under intense public debate and scrutiny on the Hill. And just in all -- considering all these circumstances, the President determined that this was the appropriate course.

QUESTION: In your view, does this mean that the judiciary committees now should get out of this process and leave it between the FISA court, the Administration and the Intelligence Committee?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: No, I'm not going to tell the Judiciary committees how to conduct their oversight role. They clearly have an important role to play in terms of oversight of the FISA.

QUESTION: Well, your letter says that you've already briefed Senator Rockefeller's committee and that you intend to brief the Judiciary Committee, or at least Spector and Leahy. Are you going to be able to brief Leahy and Spector before tomorrow's testimony by the Attorney General?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: We hope to. In terms of the Intelligence committees, of course, as you know, the full Intelligence committees, both in the Senate and the House, are fully briefed into the terrorist surveillance program and have been involved in very extensive oversight of the program. So they are fully up to speed on the program. And so, very shortly after obtaining these orders from the FISA judge, we went up to the Hill and briefed both committees.

QUESTION: So are the judges now approving these wiretaps after the wiretap actually begins?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, again, let me just say that when a FISA judge approves a FISA application, at the time he approves the FISA application, he needs to make the determination of probable cause as provided for in the statute. That determination is made, and that's, like any FISA application, those requirements need to be made.

QUESTION: But that doesn't answer the question, though. Are you guys going back to a judge after you've started it and saying, here's our application; please approve what we've already started?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as you may be aware, there is -- the emergency authorization provision in FISA provides, already provides for that kind of approach.

QUESTION: Can I ask, is one of the factors that is an advantage to going through the process of getting a FISA warrant the use of that information as a predicate or as evidence in a future criminal prosecution?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I will say that there is well established authorities and patterns for the use of information obtained through FISA surveillance, and that is something that was designed to be part of the system and part of the statute. And so those authorities are there.

QUESTION: Just one question --

QUESTION: Hang on. Hang on. Just looking ahead, what happens after 90 days? Because you said that these orders now are in effect for 90 days. Are you guys going back and reviewing them every 90 days, or what happens?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, that's typical for FISA orders. They're not in perpetuity. They usually are in operation or approved for a 90-day period or a similar period. And so it would be our intent and our expectation to seek reauthorization of the order after that period. Of course, it's always, you know, dependent upon the intelligence community's determinations and advice to the President as to the need. But assuming that doesn't change, and I don't see that changing --

QUESTION: Let me just ask whether or not the orders are retroactive. I'm trying to figure out if they deal at all with prior activities that you've conducted under the TSP, and also, I mean, do you believe that these orders insulate you from all legal attack? I mean, do you expect that the case, the NSA case before the 6th Circuit is now moot, or what?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: You just asked a lot of questions. I mean, FISA orders are prospective in the sense that you're seeking authority under a FISA court approval to do X, Y or Z. So we're talking about a -- it's not unusual in that sense. This is an order to approve surveillance for this 90-day period covered by the order.

Now in terms of the litigation, some of the litigation -- and I'm not going to comment on the ongoing litigation, but as you know, some of it is retrospective in seeking damages, including against private parties. Some of it is forward-looking in terms of litigation seeking injunctive relief to try to stop something from happening, including challenging the terrorist surveillance program and the President's authority as we described it to take that.

So, an order like this will likely have a significant impact one way or the other. Obviously, it's up to the courts in those cases to decide what the significance of the order is. And they'll have an opportunity to do that.

QUESTION: Let me just go first. You're saying that this program now fully complies in every aspect with FISA and is no longer in any respect warrantless, is that correct?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Just as the AG's letter said, any surveillance, any electronic surveillance as defined in FISA that may have been occurring under the terrorist surveillance program will now, going forward, be subject to the approval of the FISA court and will comply in all respects with the requirements of the FISA statute.

And the President has determined that we have achieved a way of doing that that is consistent with the intelligence needs, and that will protect the country as he promised to do, and that in light of these circumstances, he's made the determination that he will not be reauthorizing the Terrorist Surveillance Program when the current authorization expires.

QUESTION: Which is when? When does that expire?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, as the President has said, each authorization is good for approximately only 45 days, and we're in the middle of one now. So I'm not going to tell you the date, but it's pretty soon.

QUESTION: Just to be clear though, you're saying that the program, once this new system kicks in, it will in no respect be warrantless, correct?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: It will be subject to court order and approval by court order.

QUESTION: Okay, but that's a 'yes,' right?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: That's a 'yes.'

QUESTION: Is it your view that this will now make it unnecessary for Congress to completely basically undermine any effort by Congress to impose further statutory limitations on this program or make such legislation unnecessary?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, certainly I don't believe, as we've always said, that there's any need for statutory limitations on the Terrorist Surveillance Program or the President's conduct of the program, and certainly this should remove or take away the heat for such a debate or the need for such a debate.

But let me say very quickly that we in the administration continue to believe that Congress should enact FISA reform legislation to modernize FISA statute to reestablish what we think is the proper, original focus of FISA on the domestic communications of U.S. persons. We believe that debate should continue to happen, that Congress should consider modernizing FISA very quickly in the new Congress. And frankly, I think that this development should make that debate because it should take some of the political heat off the debate and allow members of Congress and the President to focus on things that are needed.

QUESTION: Okay. Just one clarification here. Are you doing anything different than you were doing before or did you just work out a way for the FISA court to be involved at every stage and in every case?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I'm not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we've obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect -- there's no compromise in national security.

I think the President would not have allowed this to go forward if it were determined that it would compromise national security.

QUESTION: So you're saying you're not doing anything different, all you're doing is working out a way for this to be handled in a bureaucratic fashion that does not in any way impinge on what you thought needed to be done?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Let me just say it this way, the objectives of the program haven't changed and the capabilities of the intelligence agencies to operate such a program have not changed as a result of these orders.

QUESTION: You mentioned something about development of the FISA statute. Has there been an additional ruling from the FISA Appeals Court? Is there something that has actually happened in the case law regarding FISA?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I'm not talking about a court of review decision.

QUESTION: So there has not been one or there has been one?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: There's only been one court of review, FISA court review ever.

QUESTION: Okay. So nothing else has happened, because I'm wondering what you mean by the development of the statute, if anything has happened to actually cause it?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I guess the general statement that we take full advantage of all the relevant case law. That includes our own approach to the statute. That includes rulings from the FISA Court. That includes significant precedents from the FISA Court, other related things. But I'm obviously not in a position to discuss every significant ruling that deals with FISA.

QUESTION: Is there a redacted version of some opinion we can see so we can learn -- have some idea what is it you're talking about, because right now it's almost impossible to understand anything about what has changed?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Keep in mind, if I could jump in for a second, one thing that has changed -- and this goes back to speed and agility issues, not only did we need to make sure that the legal approach we're using provided the necessary speed and agility, we need to make sure that we over here at the Department of Justice have the infrastructure we need in place -- process. And one thing that did change was -- authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will -- be coordinating with the FISA Court on all kinds of matters including this one. So we're now equipped in a way we weren't before to handle this work.

QUESTION: Let me try to this for both of you if you can (BACKGROUND NOISE) but are you saying that the FISA Court in essence now has a 24-hour hotline that you can call in or that you can use the emergency authority to bridge the gap until your much faster process can take over?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Well, I'm not going to get into the specifics, but I will say that the FISA Court is always remarkably available to the needs of the intelligence community. And as my colleague can attest, the judges of the FISA court often make themselves available at all hours to approve emergency authorizations. So that's not something that's new. I mean -- but a major development here guys is that the FISA Court has approved these orders and that these orders enable us to do what we need to do. I mean that in and of itself is a major development in the law.

QUESTION: Well, can you help us understand what an order is and how that's different from a normal warrant application?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: That's -- the warrant terminology is a little bit misleading because we talk about warrantless surveillance. The FISA Court issues orders. You hear the warrant terminology typically in the -- under the federal rules of criminal procedure. But what they issue is, they issue warrants that provide authority for us to do electronic surveillance.

QUESTION: Well, now wait a minute. You just said 'warrants'. Do you mean 'orders'?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: Order, I'm sorry. I misspoke, orders that give us the authorization we need to conduct electronic surveillance under FISA, and that's exactly what was done here.

QUESTION: All right. So if they've issued orders here, that, again, just helping us with the term of art here, that means you've made an application in a specific case and they've issued an order allowing you to conduct the surveillance in that case, right? That's not some general thing; it applies to a specific case, it's like a warrant?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: We have, just as my colleague said, the Attorney General's letter explains we filed an application, we received orders authorizing electronic surveillance that covers what -- and that none of the electronic surveillance that was previously covered by the Terrorist Surveillance Program is going to be ongoing.

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: We've got time for one more question, guys. I got to wrap this up for time. Do we have one last question maybe?

QUESTION: Yes, about the time line, can you give any more -- a better fix on when you first went to the court?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I'm sorry. We're really not going to talk about interactions with the court.

QUESTION: Do you expect workload to increase? I mean already since 2001, FISA applications have doubled. What do you think this is going to do to the workload for the FISA Court?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: The workload for the FISA Court is increasing. There's no doubt about it. It's increasing all the time, and this is a very significant development that will likely very significantly increase the workload on the court. One of the things that was achieved by the FISA modernization legislation that Congress has been considering is that it would very significantly refine the scope of what the FISA Court needs to do in a way that will make it much more efficient and streamlined and will cut down significantly on the burden currently facing the FISA Court.

QUESTION: How many applications have been rejected in the last five years? Can you tell us that?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I don't know off the top of my head, but --

QUESTION: Can you guess?

QUESTION: Were any of these applications initially rejected?

QUESTION: Can we just answer the first question first?

QUESTION: Can you make a guess at how many have been rejected?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: You know, I know we report on that on a semi-annual basis, and it's a very small number, but I wouldn't want to commit to an exact number. Keep in mind that there is also a mechanism whereby the FISA Court will ask for modifications in an application that's presented to them.

QUESTION: Did that happen in this case?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: We can't really get into -- you said we don't want to get into our interaction with the court on this case.

QUESTION: There's a lot of discussion about the standard of truth, and an Attorney General long ago used the language of 'reasonable suspicion,' and that led some of us to think that that was different than 'probable cause.' I guess what we want to figure out is are you all compromising on the question of the legal standard at issue here. Are you having to provide more evidence than you had under the prior program?

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: I think maybe what you're talking about is early on we talked about reasonable belief and then we explained that under the law, under the Supreme Court precedents, 'reasonable belief' is functionally the equivalent legally of 'probable cause.' Obviously not -- in this context you're not talking about reasonable belief to belief or probable cause to believe that a crime has been committed so much as that a certain fact is involved. So probable cause is really equivalent to reasonable belief, but that's --

QUESTION: If I could ask a real quick question --

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: This call needs to end because my colleague is already late for another call.

QUESTION: Just one real quick question --

SENIOR DEPARTMENT OF JUSTICE OFFICIAL: This is the end of the call. Again, these are U.S. DOJ officials on background. If you have any other questions that you guys really feel you need to write your stories, please call the press office and we'll do the best we can to try to get you the answer. But we do appreciate your time today and we will have a transcript of this available later today. Thank you.

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