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                               BEFORE THE

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                               H.R. 5825


                           SEPTEMBER 12, 2006


                           Serial No. 109-131


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov


29-869                      WASHINGTON : 2006
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York

                     Michael Volkov, Chief Counsel

                          David Brink, Counsel

                        Caroline Lynch, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel

                            C O N T E N T S


                           SEPTEMBER 12, 2006

                           OPENING STATEMENT

The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member (acting Chair), 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2


Mr. John Eisenberg, Deputy Assistant Attorney General, Office of 
  Legal Counsel, U.S. Department of Justice
  Oral Testimony.................................................     5
  Joint Prepared Statement.......................................     7
Mr. Vito Potenza, Acting General Counsel, National Security 
  Oral Testimony.................................................    14
  Joint Prepared Statement.......................................     7
Ms. Kate Martin, Director, Center for National Security Studies
  Oral Testimony.................................................    14
  Prepared Statement.............................................    15
Mr. Bruce Fein, Principal, Bruce Fein & Associates
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    49
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    50



                      TUESDAY, SEPTEMBER 12, 2006

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 4:10 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Daniel 
E. Lungren (acting Chair) presiding.
    Mr. Lungren. The Subcommittee will come to order.
    Yesterday marked the fifth anniversary of the terrorist 
attacks that killed nearly 3,000 Americans. As we remember the 
loss of our fellow citizens, a recurring question is raised 
regarding whether America is safer today than it was on 
September 11, 2001.
    The fact that we have not had an attack since 2001 on U.S. 
soil is something we can all be thankful for. One commentator 
called it the best-blessed nonevent that we have seen in the 
last 10 years. Whatever, this is certainly more than just a 
matter of luck.
    Recent revelations in the press and by the Administration 
itself indicate the extent to which they have acted to protect 
the American people from another event of such cataclysmic 
proportion, and the Congress has acted in aid of the 
Administration over these last 5 years as well. However, this 
is not the sole question we should ask.
    Safer does not mean that there is any room for complacency 
as the events in Bali, Madrid, Oman others, including London on 
7/7, indicate we are still at war with an enemy that is fully 
devoted to one thing; that is the murder of innocent people.
    In this regard, it is a primary responsibility of 
Government to protect its citizens from violence. Understanding 
this, Congress must ensure that the law enforcement and the 
intelligence communities are equipped with the proper tools to 
fight a 21st century war against an enemy which operates by 
stealth and surreptitious means.
    This Congress has already acted to provide law enforcement 
and intelligence officers with enhanced capability through the 
enactment of important legislation like the USA PATRIOT Act, 
Homeland Security Act and Intelligence Reform Act. Now we need 
to streamline the FISA process and make it technology neutral.
    These are the express goals of H.R. 5852, the Electronic 
Surveillance Modernization Act. Today we will hear testimony on 
the bill and suggestions for possible improvements to the 
legislation in order to achieve these goals.
    Also I would mention that Members of the full Committee 
were able to attend a closed briefing earlier this afternoon on 
this subject. Many Members took advantage of that opportunity 
to participate and ask questions; and it is as a result of 
that, we are starting this hearing a little bit later than it 
was noticed for, and for that I apologize, but we needed to 
have an opportunity for Members to return and also for several 
members of our panel time to get here as well.
    I look forward to the constructive suggestions our 
witnesses will offer on how to improve FISA so that we may meet 
the new challenges posed to our Nation by the specter of 
terrorism and by the fact of advances in technology.
    With that, I am privileged to recognize the Ranking Member 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. And I appreciate your 
holding an additional hearing on this important issue affecting 
our traditional notions of rights, liberties and protections 
from Government intrusions into our private affairs in the 
context of secret surveillance without the benefit of court 
approval or review.
    One reason I feel that we need to hear more about the 
impact of the pending legislation is because I feel that we are 
in the absolute dark about what the legislative--about what the 
legislation affects.
    Let me be clear, the primary problem confronting Congress, 
in my view, is the issue of whether we are performing our 
constitutional oversight responsibilities when we do not hold 
the Administration accountable to following the process we set 
up for conducting surveillance involving American citizens in 
America. If there is some difficulty with the procedures, we 
would expect the President to bring those to our attention and 
work with us in our attempt to address them just as we have 
done with the USA PATRIOT Act bill and the 25 amendments to 
FISA that we have passed since 9/11/2001.
    We do not expect the President to ignore the laws that are 
passed and enacted because he considers them inconvenient or to 
set up his own secret process around the laws that he only 
reveals when he is caught, declaring that he is following his 
own set of laws and procedures he wrote pursuant to powers he 
declares upon himself under the Constitution. I find it 
insulting and disingenuous to our system of laws and procedures 
for someone to suggest that it is inconvenient for the 
President to comply with the laws when they require obtaining a 
warrant or court order.
    If he is doing what he has chosen and indicates he is 
doing, that is, surveilling only al-Qaeda members and those who 
act with them, then obviously a FISA court order could be 
obtained. Consequently, I am left to wonder whether the real 
reason the Administration does not submit the matter to the 
FISA court is because of concerns that the available 
information would not justify a warrant.
    The problem is, we don't know, and I believe our oversight 
requires us to know and ensure the American people that the 
President's surveillance activities are within the rule of law. 
If the rationale of the legislation, if it were amended, is the 
hope that the President will find them enough to his liking to 
actually use them, then he doesn't--and when he doesn't choose 
to keep his actions in complete secrecy, I am not clear on the 
need or the desirability of the legislation. In other words, if 
the legislation does not control the parts of the TSP affecting 
American citizens in America, then what is the point of this 
legislation? I think our Founding Fathers would be shocked to 
learn that we had created an unbridled power in the President 
to secretly conduct surveillance involving Americans in America 
without the approval of courts. And I do not believe the courts 
will find that he has that authority.
    So I certainly do not want to see legislation that would 
purport to establish or recognize such a power in the 
President, but I fear the bill before us does. And even if we 
were sure that the legislation required the President to 
conduct a domestic surveillance pursuant to it, I would be 
concerned about the broad loopholes it creates in taking 
currently covered surveillance activities outside of FISA 
through redefining what constitutes, quote, ``electronic 
    I would also be concerned with what we mean by provisions 
in the bill as to what constitutes an armed attack triggering a 
warrantless 60-day window. Was the attack on the American 
embassy in Syria this morning an armed attack that would 
provoke a 60-day warrantless period in this country?
    And I also want to know what is meant by a ``terrorist 
attack'' in the bill which invokes potentially endless renewed 
45-day warrantless periods. Would it include attempts or 
conspiracies to launch a terrorist attack? If not, why not? And 
was the recent plot discovered in Great Britain to blow up 
planes headed for the United States such a terrorist attack?
    Those are just a few of the problems I have with the bill 
in the context under which we are considering it. We do not 
have in any recommendations, specific recommendations, from the 
Administration one way or the other. And so we are left with 
the idea that if we take up the bill tomorrow, as we are 
presently scheduled to do, we can assume that we will pass 
something, not knowing what the implications would be. The bill 
would be rewritten at some point in the procedure, and we would 
be stuck--as we were with the PATRIOT bill, having reported a 
bill with unanimous vote in Committee and then, hot off the 
press, have to consider something else entirely different on 
the floor of the House.
    So, Mr. Chairman, I look forward to the testimony of the 
witnesses and hope they can at least let us know what is going 
on today, so we know what we are dealing with and how we can 
perhaps deal with the few glitches there may be without broad-
scale overhaul of the FISA in a way that we don't know what we 
are doing.
    Thank you, Mr. Chairman. I yield back.
    Mr. Lungren. I thank the gentleman from Virginia. I was not 
here when we passed the original PATRIOT Act, so I can't 
comment on that. But I think I will put you down on as 
undecided on the bill before us.
    It is the practice of the Subcommittee to swear in our 
witnesses appearing before it, so if you would please stand and 
raise your right hand.
    [Witnesses sworn.]
    Mr. Lungren. Please let the record show that each of the 
witnesses answered in the affirmative.
    I am sorry, Mr. Conyers, who is the Ranking Member of the 
full Committee, is recognized for any statement he would wish 
to make at this time.
    Mr. Conyers. I want to thank Chairman Lungren and just ask 
unanimous consent to put my statement in the record.
    Mr. Lungren. Without objection.
    Mr. Conyers. And I just want to make a point.
    It has not been--first of all, I want to subscribe to what 
Ranking Member Scott has said, particularly with reference to 
the lack of time that we are having to get this matter worked 
out. I think that the time line is going to be very difficult 
for us to make, and I will probably be seeking the Chairman of 
the Subcommittee and the full Committee's approval that we work 
out something different from a disposition within the next 24 
hours, which might be pretty hard to do.
    Now, the question is whether we can refine the Foreign 
Intelligence Surveillance Act or do we need to gut it in order 
to make the objectives that we most generally say that we want 
to make here?
    The Committee is handicapped by the fact that after 9 
months, when we learned of the warrantless surveillance 
program, that we haven't done much about inquiring into its 
appropriateness, legality or how we deal with it, so that 
coming into this as quickly as we are, it is a pretty difficult 
    And so, in conclusion, I think the lesson of the last 5 
years is that if we allow intelligence, military and law 
enforcement to do their work free of legislative oversight, if 
we give them requisite resources and modern technologies, we 
want them to connect the dots in a nonpartisan manner, we can 
protect our citizens.
    Let's fight terrorism. But we need to fight it the right 
way, consistent with our Constitution and in a manner that 
serves as a model for the rest of the world. And I am not sure 
that the major legislative proposal that we have before us 
meets that test.
    And I thank the Chairman for allowing me to intervene.
    Mr. Lungren. I thank the gentleman.
    [The prepared statement of Mr. Conyers is published in the 
    Mr. Lungren. All Members are informed that any opening 
statement they would like will be made a part of the record. 
And I welcome our witnesses to this legislative hearing on H.R. 
5825, the ``Electronic Surveillance Modernization Act.''
    We have four distinguished witnesses with us today. Our 
first witness is Mr. John Eisenberg, Deputy Assistant Attorney 
General with the United States Department of Justice's Office 
of Legal Counsel. Mr. Eisenberg was appointed to his current 
position this past March. Prior to joining the department, he 
clerked for the Honorable Judge Michael Luttig of the Fourth 
Circuit and for Supreme Court Justice Clarence Thomas in 2003. 
Mr. Eisenberg obtained his undergraduate degree from Stanford 
University in 1991, his law degree from Yale University Law 
School in 2001.
    Our second witness is Mr. Vito Potenza, the Acting General 
Counsel at the National Security Agency. Prior to joining NSA 
Mr. Potenza was staff attorney for the District of Columbia 
Public Defender Service. He began his career with the NSA in 
1980 as a principal litigation attorney, and until recently was 
assigned the position of Deputy General Counsel, a role he has 
filled since 1993; served as a key advisor to the Director and 
senior staff in the Agency's efforts to combat global 
terrorism. Mr. Potenza's contribution to the NSA and the 
Department of Defense have been recognized by Presidential Rank 
Award, and the Secretary of Defense Medal for Meritorious 
Civilian Service, graduated cum laude from Union College in New 
York with a degree in political science, and received his law 
degree from Georgetown University Law Center.
    Our third witness is Ms. Kate Martin, Director of the 
Center for National Security Studies. In addition to her 14 
years at the center, Ms. Martin has taught strategic 
intelligence public policy at the Georgetown University Law 
School, and also served as General Counsel to the National 
Security Archive Research Library at George Washington 
University. She is the author of numerous articles and was 
awarded the Eugene Pulliam First Amendment Award in 2005 by the 
Society for Professional Journalists.
    Ms. Martin graduated cum laude from Pomona College, and 
received her J.D. from the University of Virginia Law School.
    Our final witness is Bruce Fein, principal of Bruce Fein & 
Associates and The Litchfield Group. He has held several 
positions with the Department of Justice, served as Assistant 
Director of the Office of Legal Policy, Legal Adviser to the 
Assistant Attorney General For Antitrust and the Associate 
Deputy Attorney General. He has been a Scholar with the 
American Enterprise Institute, Heritage Foundation, a lecturer 
at the Brookings Institute, and Adjunct Professor at George 
Washington University. Additionally, he was Executive Editor of 
World and Intelligence Review, a periodical devoted to national 
security and intelligence issues. Mr. Fein graduated Phi Beta 
Kappa from the University of California at Berkeley and cum 
laude from Harvard Law School.
    As you may know, our procedures here in the Subcommittee 
are to have statements by our panelists of 5 minutes. I'll try 
and keep you close to that, and then Members will have 
opportunity for questions. Your prepared remarks will be, in 
their entirety, placed in the record, and we will ask you to 
make your statements in the order in which you received them 
with Mr. Eisenberg going first.
    Mr. Eisenberg.


    Mr. Eisenberg. Thank you, Chairman Lungren, Ranking Member 
Scott and Members of the Subcommittee. We appreciate the 
opportunity to appear before you today to discuss proposed 
revisions to the Foreign Intelligence Surveillance Act of 1978, 
or FISA.
    Yesterday, our Nation remembered the horrific attacks of 
just 5 years ago, the single deadliest foreign attacks on U.S. 
soil in our Nation's history. On that day 5 years ago, we 
recognized what our enemies had known long before 9/11: We were 
at war.
    Although we have done much to make America safer, our enemy 
is patiently waiting to strike again. We must never forget 
this, and together we must strive to do everything in our power 
and within the law to see that it never happens again. At the 
same time, of course, we must steadfastly safeguard the 
liberties we all cherish. We believe that we can reframe FISA 
to serve both of these goals better.
    We have been asked to return today to address the 
Committee's specific questions about H.R. 5825, and we are 
pleased to do so. We have outlined additional specific concerns 
in our written testimony, and in the interests of saving time, 
I will highlight a few of these points here.
    We think we can protect national security and civil 
liberties at the same time, and any FISA amendments should be 
geared to this end. Specifically, we think that we can redefine 
electronic surveillance to exclude certain categories that are 
currently within the statute and that this would streamline 
things. We think we can streamline applications so that the 
Foreign Intelligence Surveillance court receives the 
information it needs to make decisions, but that does not 
overly burden the executive branch in getting it that 
    We think that certain types of agents of a foreign power 
should be added to the list in FISA. We think that a provision 
such as section 8 modified for programs should be available. 
And we think that any package that addresses the problems we 
currently face should address litigation management because of 
the litigation we face today.
    We look forward to your questions.
    Mr. Lungren. Thank you very much.
    [The prepared statement of Mr. Eisenberg follows:]
   Joint Prepared Statement of John A. Eisenberg and Vito T. Potenza

    Mr. Lungren. Mr. Potenza.

                        SECURITY AGENCY

    Mr. Potenza. Congressman Lungren, Ranking Member Scott, 
Members, I do not offer a separate statement. We join the 
statement that was submitted by Mr. Eisenberg in the Department 
of Justice.
    I believe the comments offered last week by Mr. Deitz 
covered the groundwork, and I would be pleased to answer any 
additional questions.
    Mr. Lungren. And I understand you are here instead of Mr. 
Deitz because since he last testified before us and went under 
the grilling of Mr. Scott, he is no longer in that position; is 
that correct?
    Mr. Potenza. That's correct, sir.
    Mr. Lungren. Actually, he has moved on to another position 
working for General Hayden; is that correct?
    Mr. Potenza. Yes, sir.
    Mr. Lungren. All right.
    [See page 7 for joint prepared statement.)
    Mr. Lungren. Ms. Martin.


    Ms. Martin. Good afternoon, Chairman Lungren and Ranking 
Member Scott. I want to thank you for the opportunity to 
testify here today, and I confine my remarks to a couple of 
basic points.
    First, I would like to second the testimony that you heard 
last week from the Center for Democracy and Technology, but 
today talk specifically about H.R. 5825, the Wilson bill that 
is before you, and make the first point that the bill would 
radically amend the Foreign Intelligence Surveillance Act and 
eliminate the basic framework of that statute.
    The many changes in the bill are very complicated. It is 
difficult to understand them, and I don't think we have had an 
adequate explanation from the bill's sponsors or the 
Administration of how the changes would actually work and what 
they are intended to do.
    Nevertheless, it is clear that the bill would create such 
large loopholes in the current warrant requirements that 
judicial warrants for secret surveillance of Americans' 
conversations and e-mail would be the exception rather than the 
    First, I want to make clear that I don't think that we have 
heard yet any problems identified by Administration witnesses 
that would justify such a wholesale rewriting of the statute. 
The two basic problems that have been referred to are the 
timing issue that the Attorney General talked about when he was 
asked to testify and that can be addressed by streamlining 
extra resources, a much more narrow fix than is contained in 
this bill.
    And the second specific problem that was identified by Mr. 
Deitz last week was that foreign-to-foreign communications that 
happen to travel through switches or facilities in the United 
States and are intercepted in the United States are thereby 
subjected to the FISA warrants requirement.
    We agree that communications between foreigners located 
overseas are not subject to the fourth amendment, and if it 
should happen that they are available for interception in the 
United States, no FISA warrant should be required. That is a 
fix that can be easily drafted, we believe, and there is some 
language to that effect.
    That is not the fix that the Wilson bill is addressed to. 
Instead, it contains basically at least two radical changes to 
the FISA. The first is that it would radically expand the 
exception in the FISA that allows the Attorney General to 
wiretap individuals inside the United States without a warrant.
    The current law allows the Attorney General to wiretap what 
are basically foreign embassies without obtaining a warrant. 
That is an exception that we have always supported. The Wilson 
bill would expand that exception to allow the Attorney General 
to wiretap literally millions of individuals in the United 
States without a warrant and without any determination that 
they are suspected of terrorism, espionage or sabotage. And, 
obviously, in wiretapping those millions of individuals inside 
the United States, the NSA would be enabled to seize millions 
of conversations between those noncitizens and citizens and 
U.S. persons inside the United States.
    Secondly, the bill would enable the NSA and the Government 
to vacuum up conversations between Americans and individuals 
overseas as long as the interception was not targeted at a 
particular individual in the United States.
    So, for example, the bill specifically anticipates that if 
the NSA turned on its machines to seize an entire stream of 
communications between New York City and Israel, for example, 
that that interception would not be covered by the warrant 
requirement of FISA. It then permits the Government, after it 
has seized those millions of communications, to use a 
surveillance device, quote, unquote, to then select individual 
communications from that stream and target individual, named 
Americans who have been--over a part of that stream, and listen 
to their communications without a warrant.
    We believe that these amendments and this approach is 
unnecessary. It has not been justified as to why they can't go 
to the court; and most fundamentally, it violates the fourth 
amendment's requirements of both a judicial warrant and that 
there be individualized probable cause that individual that the 
United States Government wants to listen to is engaged in some 
kind of wrongdoing.
    Thank you.
    Mr. Lungren. Thank you very much.
    [The prepared statement of Ms. Martin follows:]

                   Prepared Statement of Kate Martin

    We would like to second the testimony that has previously been 
provided to you by the Center for Democracy and Technology on the NSA 
surveillance and FISA generally. Today, I would like to make four 
points about H.R. 5825, the ``Electronic Surveillance Modernization 
Act'' introduced by Reps. Wilson, Hoekstra and Sensenbrenner and 
    First, the bill is not focused on and is not a fix for those 
problems identified by the Attorney General and other administration 
officials in testimony before the Congress concerning the justification 
for the warrantless surveillance being conducted by the NSA.
    Second, the bill instead would radically amend the Foreign 
Intelligence Surveillance Act and eliminate the basic framework of 
FISA. The many changes in the bill are complex and it is especially 
difficult to understand how they all work together. Neither the 
administration's witnesses nor the bill's sponsors have explained its 
operation in any detail. Nevertheless, it is clear that the bill would 
create such large loopholes in the current warrant requirements, that 
judicial warrants for secret surveillance of Americans' conversations 
and e-mail would be the exception rather than the rule.
    Third, the changes in the bill would gravely threaten individual 
liberty and privacy and pose new risks to important counter-terrorism 
efforts. As described in more detail below, the warrantless 
surveillance of Americans' communications that would be authorized by 
the bill would clearly violate the Fourth Amendment and the data-mining 
that would be authorized by the bill would constitute an additional 
grave threat to everyone's privacy. Allowing broad surveillance diverts 
scarce counter-terrorism resources from focusing on individuals for 
whom there is reason to believe that they are engaged in terrorist 
plotting and instead encourages the government to spend valuable 
resources data-mining on millions of innocent Americans.
    In addition, the bill threatens to destroy the basic framework of 
FISA, which has been accepted by courts as an appropriate and 
constitutional method for conducting secret surveillance of Americans. 
FISA ``embodies a legislative judgment that court orders and other 
procedural safeguards are necessary to insure that electronic 
surveillance by the U.S. Government within this country conforms to the 
fundamental principles of the fourth amendment.'' S. Rep. No. 95-701, 
at 13 (1978). Before 9/11, FISA surveillance was universally upheld by 
the courts against legal challenges. Since the announcement of the 
President's decision to conduct surveillance outside the bounds of FISA 
and without judicial warrants, three district courts have rejected 
government claims defending the surveillance. Eliminating the 
constitutional grounding and certainty found in the FISA, by radically 
amending it, leaves government intelligence officers at personal risk 
and jeopardizes potential criminal convictions based on such 
    Fourth, as others have pointed out, Congress is being asked to 
legislate about Americans' most basic liberties, while being kept in 
the dark about the surveillance. While the administration swears that 
they are not listening to domestic-to-domestic calls without a warrant, 
we do not know whether they did do so for some period after 9/11. We do 
not know whether they still have those communications if they did. We 
do not know whether there are other programs, which involve listening 
to Americans' overseas communications without a warrant, where one of 
the parties to the calls is NOT an Al Qaeda suspect. Finally, we do not 
know--although there is every reason to suspect--whether the government 
is gathering all the addressing/to/from information on millions of 
communications, including domestic to domestic communications: who 
called whom, when, and for how long. We do not know how such 
information is being data-mined and collated with the vast amounts of 
information otherwise available to the government to create giant maps 
of Americans' associations as part of massive computerized dossiers on 
millions of individuals.

                       ADMINISTRATION OFFICIALS.

    Various administration spokesmen have referred to various problems 
in FISA that interfere with important intelligence-gathering. The 
Attorney General first claimed that the process of getting a warrant 
took too long; now there are references to technological developments 
and the use of disposable cell phones; Mr. Deitz spoke last week of the 
requirement to get a FISA warrant in certain circumstances even when 
the communications being intercepted involved a foreigner overseas 
talking to another foreigner overseas. Although he failed to explain 
why that was the case, it is clear that the FISA requires a warrant 
when the communication is seized in the US, no matter where the 
communication is traveling to and from. In recent years, more and more 
international to international communications may be randomly routed 
through switches in the US and if the NSA seizes the communications at 
those switches rather than off international satellites, the law 
technically requires a warrant.
    However, H.R. 5825 does not address these identified problems 
(except by eliminating most of the FISA warrant requirements for all 
communications.) If these are indeed real problems, each of them is 
fixable by targeted legislation that leaves the Fourth Amendment and 
its warrant requirement intact. The Harman-Conyers bill would 
streamline the FISA process and provide more time to obtain a warrant; 
the Congress just amended the FISA to address disposable cell phones in 
the Patriot Act; and the foreign-to-foreign problem could be fixed by 
narrowly targeted legislation addressing the interception of such 
communications in the United States.

                         EXISTING DIFFICULTIES.

    At the same time, it is clear that the administration is being less 
than forthcoming about the warrantless surveillance and what problems 
it may be encountering under FISA. When the Attorney General first 
testified, he did not mention the foreign-to-foreign problem. That 
problem has presumably been around since before 9/11 and no one has 
explained why the administration did not seek a fix for it in the 
Patriot Act. In addition, Representative Harman and Senator Feinstein, 
who according to the administration, have been fully briefed on the 
program, have both said that they believe the program could function 
under FISA. Indeed, if the President's description is accurate, the 
Attorney General could simply go to the FISA court and request the 
orders required by federal law.
    Perhaps most importantly, it seems clear, as I outlined at the 
beginning, that we do not know whether there are other programs, in 
addition to the Terrorist Surveillance Program described by the 
President, operating outside the law. The fact that administration 
witnesses keep mentioning new problems, which don't appear related to 
that program--like the foreign-to-foreign problem--while failing to 
submit draft legislation to fix any problems, raises serious questions.
    In this context, the breadth of the warrantless surveillance that 
would be authorized by both H.R 5825 and Senator Specter's bill, which 
has been endorsed by the Justice Department, raises disturbing 
questions about the breadth of the actual surveillance, that either was 
conducted in the past or is planned for the future, even if not ongoing 
at present.

                             THAN THE RULE.

    H.R. 5825 would radically amend the definition of ``electronic 
surveillance'' to eliminate surveillance of many communications of 
individuals in the United States from the protections of the Act. It 
would radically rewrite the provision giving the Attorney General 
authority to conduct warrantless surveillance of foreign embassies in 
order to allow warrantless surveillance of millions of individuals in 
the US. It would provide for unlimited and unchecked warrantless 
surveillance and secret physical searches after attacks on the United 
States. Finally, it would also eliminate the requirement that the 
government obtain a FISA court order before using pen register or trap 
and trace devices to capture real-time call information showing what 
numbers or addresses were called. It would allow the government to 
capture such information about virtually everyone in the US and use it 
to map their associations and contacts.


    While the President has claimed ``inherent authority'' to violate 
the existing prohibitions in FISA on warrantless surveillance, 
eliminating those statutory prohibitions will not cure the 
constitutional infirmity of such surveillance. The Fourth Amendment is 
clear that a judicial warrant is required for interception of 
Americans' communications and that such warrant must be based on 
individualized probable cause of wrong-doing. Such protections are of 
course even more critical, where as in the case of FISA surveillance, 
the individuals surveilled are likely never to know that the government 
has taped their telephone calls, e-mails, private conversations or 
searched their houses and copied the contents of their computer hard 
drives and photographed their papers.
    While the administration argues that surveillance is necessary to 
counter the threat from Al Qaeda, a claim with which we agree, it makes 
no showing why such surveillance need be conducted without a judicial 
warrant. Again, such a warrant is especially crucial, where there is 
unlikely to be any after-the-fact judicial review of the surveillance 
because it will be kept secret. The Department of Justice cites Courts 
of Appeals cases upholding warrantless surveillance, but all of those 
cases dealt with pre-FISA surveillance. See United States v. Truong, 
629 F.2d 908, 916 (4th Cir. 1980); United States v. Butenko, 494 F.2d 
593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th 
Cir. 1973). And in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) 
(en banc), a plurality of the D.C. Circuit rejected the notion that 
electronic surveillance for foreign intelligence activities can be 
conducted without a warrant.
    With the establishment of the FISA court and FISA's provisions for 
secret warrant application procedures and permanent secrecy, the 
rationale for allowing warrantless searches disappeared. Moreover, even 
the pre-FISA cases upholding warrantless surveillance did so only when 
the Attorney General had personally determined that there was probable 
cause that the target of the surveillance was an agent of a foreign 
power. See United States v. Truong, 629 F.2d 908, 916 (4th Cir. 1980). 
Where that determination had not been made by the Attorney General, the 
surveillance was held unconstitutional and the court suppressed 
evidence from a search that had not been so approved. In the case of 
the Terrorist Surveillance Program, the Attorney General has made no 
such determination. Likewise, H.R. 5825 would authorize massive 
surveillance with no warrant and not even any individualized 
determination of probable cause by the Attorney General.
    The NSA claims that the program is constitutional, because there is 
oversight through its Inspector General's office and notification to 
members of the Intelligence Committees. But the Fourth Amendment's 
requirements of probable cause and judicial approval are not optional 
protections to be replaced by Executive Branch procedures at the 
Executive Branch's option. The essence of the constitutional protection 
for individual liberties is the division of powers among all three 
branches of government, so that all power over an individual would not 
be concentrated in the hands of the Executive Branch. The requirement 
of probable cause for government intrusions into individual liberty 
found in the Bill of Rights may not be superceded by rules promulgated 
by the administration of the day. H.R. 5825 seeks to do away with these 
bedrock constitutional protections.

    Mr. Lungren. Mr. Fein, please.

                    BRUCE FEIN & ASSOCIATES

    Mr. Fein. Mr. Chairman and Members of the Committee, I am 
honored to testify here today.
    You mentioned at the outset, Mr. Chairman, the devastations 
of 9/11. And I think the proponents of the legislation today, 
representing the Justice Department, urge that we be alert to 
the need to defend ourselves against the al-Qaeda and other 
international terrorists that have no ground rules that would 
shield any of us from potential attack. But there is also, I 
think, something to be learned from a similar attack, December 
7, 1941, Pearl Harbor.
    In the aftermath of that devastation, which was then, I 
think, the most damaging to the United States, there was 
undertaken in response to the alarm the internment of 120,000 
Japanese Americans, all of them loyal, based upon nothing but 
fear and bigotry against persons of Japanese ancestry. It was 
an act that was ultimately apologized for by this Congress in 
the Civil Liberties Act of 1988.
    Now, I just suggest that analogy to remind the Committee 
that the executive branch can sometimes get it wrong, that 
unchecked power is inviting abuse.
    It can be said that today we don't have any clear evidence 
that the warrantless surveillance program of the NSA has 
produced anything like the massive violations of civil 
liberties after Pearl Harbor. But you all remember that the 
Church committee hearings in the 1970's revealed undisclosed, 
massive violations, that had been persistent for 20 years, by 
the FBI and the CIA intercepting international telegraphs, 
misuse of the NSA in diverting their mission from intelligence 
collection to law enforcement that had been concealed and 
unknown for decades.
    Just because we don't know there are abuses that are on the 
front pages of the New York Times and Washington Post doesn't 
assure us that they aren't ongoing; you don't know what is 
being done with the information collected, what the 
minimization procedures are. And I simply alert this Committee 
of these possible dangers to suggest that the Administration 
must shoulder, in my judgment, a very strong burden to suggest 
that we need extraordinary measures that depart from the 
customary rules that we have operated under with the Foreign 
Intelligence Surveillance Act ever since 1978.
    That is a long period of time. Over 30 years.
    The Wilson bill that you are examining today is tantamount 
to a repeal of FISA because of the exemptions of the warrant 
requirement every time the President certifies that there has 
been an attack, a terrorist attack, against the United States.
    Now, I would suggest, Mr. Chairman and Members, there will 
not be a day from now for at least 10 years where one of our 
soldiers in Iraq or Afghanistan or elsewhere around the world 
will not be the target of a terrorist attack. It occurs every 
day, and the President simply makes that certification every 45 
days and the warrant requirement is ended. It is the equivalent 
of ratifying the President's warrantless surveillance program 
that obtains at present.
    There is another element of the Administration's testimony 
that seems to me worrisome. As you well know, in earlier rounds 
that the Congress has held the Administration has taken the 
position that article 2 of the Constitution empowers the 
President to conduct a program irrespective of any statute that 
Congress enacts, including the Wilson bill. That particular 
theory of constitutional power has not been repudiated by the 
Administration before this Committee or any other. The gist of 
their position then is whether or not this Committee enacts the 
law. It doesn't have to obey it anyway because its article 2 
power supersedes whatever Congress can do.
    It seems to me, therefore, it would be grossly remiss for 
this Committee not to inject in any bill that regulates foreign 
intelligence collection a clear assertion that Congress does 
enjoy power under the necessary and proper clause to regulate--
not eliminate, but to regulate--the President's authority to 
gather foreign intelligence.
    Now let me quickly turn to the burden that the 
Administration says has been satisfied to show why we need to 
abandon the Foreign Intelligence Surveillance Act. It simply 
says, well, it doesn't do the job without giving any particular 
reasons. As recently as July 31, 2002, this same Justice 
Department told the Senate Intelligence Committee that FISA as 
amended by the PATRIOT Act and other statutes was nimble, 
flexible and didn't need any reform. Indeed, the Department 
opposed a relaxation of FISA, saying it would create 
constitutional problems in addressing a proposal by Senator 
Mike DeWine.
    Now, there has been no indication since July 31, 2002, in 
any public statements by the Administration, that anything has 
changed with regard to the operation of FISA. It seems to me 
obligatory on the Administration to show with specifics--it can 
be done in executive session or otherwise--that the warrantless 
surveillance program for 5 years has been able to gather 
critical intelligence that could not have been gathered under 
FISA; not only that, that it could not have in a secret session 
proposed amendments to FISA to address any shortcomings.
    In my judgment, the most dangerous element of this whole 
exercise is this insistence by the Administration that checks 
and balances can be abandoned, that we can simply resort to 
single executive branch Government in the war against 
international terrorism because there is fear out there that 
can be exploited politically to suggest anyone who would want 
any regulation that is weak on terrorists.
    That would set a precedent, as Justice Robert Jackson once 
said, that lies around like a loaded weapon ready to be used by 
any other future President who wants to violate a congressional 
statute. If there comes a sequel of 9/11 that happens here, the 
fear and alarm that will be created will invite a President to 
do just that.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Fein follows:]

                    Prepared Statement of Bruce Fein

    Mr. Chairman and Members of the Committee:
    I am grateful for the opportunity to testify in opposition to H.R. 
5825, a bill that would emasculate the scope and checks and balances of 
the Foreign Intelligence Surveillance Act of 1978 (FISA) without any 
benefit to the national security.
    The Bush administration has made no showing that FISA is deficient 
in gathering foreign intelligence to defeat international terrorism. 
Indeed, on July 31, 2002, Bush's Justice Department effused to the 
Senate Intelligence Committee that FISA was nimble, flexible, and 
optimal in thwarting terrorism in the bud. Neither the Bush 
administration nor the 9/11 Commission has adduced any evidence that 9/
11 might have been foiled if the President had then enjoyed unfettered 
power to spy on American citizens on American soil. And during the five 
years since President Bush's commenced the National Security Agency's 
warrantless domestic surveillance program in violation of FISA, no 
convincing evidence has been forthcoming that a single terrorist plot 
or incident was foiled but would have succeeded if FISA had been 
    Moreover, President Bush has continued to conceal from Congress 
intelligence programs that have not been leaked to the media. It would 
be irresponsible for Congress to legislate in an ocean of ignorance. 
Further, H.R. 5825 neglects to challenge President Bush's claim that he 
is crowned with inherent Article II authority to ignore any law enacted 
by Congress that purports to restrict in any way his ability to collect 
foreign intelligence, including restrictions on mail openings, breaking 
and entering homes, electronic surveillance, or torture. If Congress 
accepts that White House claim, then any FISA legislation, including 
H.R. 5825, will be meaningless.
    In lieu of H.R. 5825, Congress should prohibit the President from 
expending any monies of the United States to gather foreign 
intelligence except in conformity with FISA. Brandishing the power of 
the purse will concentrate the mind of President Bush wonderfully on 
disclosing to Congress facts and reasons that might demonstrate a 
genuine need to amend FISA for national security purposes as opposed to 
political optics in anticipation of November's elections.

                             I. BACKGROUND

    The history of unchecked power is a history of abuses and tyranny. 
Unchecked power occasioned the Magna Charta, the English Bill of Rights 
of 1688, the Declaration of Independence, the United States 
Constitution, and the Bill of Rights. The crown jewel of the 
Constitution--the separation of powers--confirms the Founding Fathers' 
belief, like Lord Action, that power corrupts, and absolute power 
corrupts absolutely.
    That conviction has been corroborated by the history of unchecked 
domestic and foreign intelligence spying by the President as disclosed 
by the Church Committee and sister congressional committees: two 
decades of illegal mail openings by the FBI and CIA; two decades of 
illegal interceptions of international telegrams by the twin spy 
agencies; seven years of misuse of the NSA for non-intelligence 
gathering purposes; COINTELPRO; OPERATION CHAOS; massive files on 
political dissidents. Nothing is more common in the history of spying 
than the ready conflation of political opposition with subversion or 
treason, and government attempts to suppress dissent by generating an 
aura of intimidation or fear of retaliation.
    FISA provided a measured response to the alarming abuses of 
unchecked spying by the executive branch. Its constitutionality was 
incontestable. FISA accepts that the President enjoys inherent power to 
gather foreign intelligence. But Article I, section 8, clause 18 
entrusts Congress with authority to regulate any power conferred on any 
branch of government--legislative, executive, or judicial. FISA 
circumspectly regulated the NSA's authority to target American citizens 
on American soil who were suspected of terrorist activities. But the 
statute by no means either eliminated or crippled the President's power 
to gather foreign intelligence. Indeed, FISA leaves all but a crumb of 
foreign intelligence collection outside its ambit.
    As Mr. Robert Deitz, General Counsel of the NSA, testified on 
September 6, 2006: ``[B]y far the bulk of the NSA's surveillance 
activities take place overseas, and these activities are directed 
entirely at foreign countries and foreign persons within those 
countries. All concerned agree, and to my knowledge have always agreed, 
that the FISA does not and should not apply to such activities . . . In 
addition, even as it engages in its overseas mission, in the course of 
targeting the communications of foreign persons overseas, NSA will 
sometimes encounter information to, from or about U.S. persons. Yet 
this fact does not, in itself, cause the FISA to apply to NSA's 
overseas intelligence activities, and to my knowledge no serious 
argument exists that it should.'' In other words, President Bush's 
signature hypothetical misrepresents FISA. If Al Qaeda is calling from 
abroad and an American picks up the phone in the United States, FISA 
does not require the NSA to stop listening.
    Generally speaking, FISA applies only to that sliver of the NSA's 
foreign intelligence activities that target American citizens on 
American soil. FISA does not prohibit such targeting, but simply 
requires the Attorney General to obtain a warrant from a FISA judge 
based on probable cause to believe the American citizen is a lone 
terrorist or acting as an agent for a foreign power or foreign 
terrorist organization. The warrant threshold is not troublesome. Since 
the enactment of FISA, approximately 20,000 warrants have been sought 
and all but a handful approved. Further, FISA provides a 15 day window 
for spying without a warrant in the aftermath of war and a 72 hour 
window in cases of emergencies. No evidence has been adducted 
indicating that in countries like Great Britain or France whose 
intelligence agencies are unrestricted by an equivalent of FISA are any 
safer or superior in foreign intelligence collection than is the United 
States. In sum, it would be preposterous to assert that FISA 
unconstitutionally compromises the President's ability to collect 
foreign intelligence and protect national security.

                   II. NO NEED TO FURTHER AMEND FISA

    FISA has been amended several times since 9/11, for example, to 
tear down the wall between intelligence and law enforcement, to extend 
the emergency exception to 72 hours, and to bring lone wolf terrorists 
within its scope. It speaks volumes that H.R. 5825 is naked of even one 
finding suggesting a need for additional amendments. In other words, 
the bill's sponsors have been unable to articulate any deficiencies in 
the existing statute.

                III. H.R. 5825 EFFECTIVELY REPEALS FISA

    As a practical matter, Section 8 of H.R. 5825 repeals FISA and 
endows the President with virtually untrammeled power to intercept the 
communications of every American on his say-so alone. Section 8 
eliminates FISA's warrant requirement for electronic surveillance 
whenever the President certifies that the United States has been the 
subject of a terrorist attack, and, identifies the terrorist 
organizations or their affiliates believed to be responsible. But for 
the indefinite future, the United States will daily be targeted by 
terrorists in Iraq and Afghanistan. Indeed, some American will be 
targeted by some terrorist somewhere in the world every day for the 
foreseeable future. Section 8 stipulates that the persons targeted by 
the warrantless electronic surveillance should be reasonably suspected 
of communicating with the responsible terrorist organization. But the 
executive branch will invariably find that its own suspicions meet that 
benchmark. For example, during the five years of the NSA's warrantless 
domestic surveillance program there is no evidence that any supervisor 
at the NSA or Department of Justice prevented a single electronic 
surveillance because of too weak a suspicion that the target was 
implicated in terrorism.
    H.R. 5825's attempt to limit spying on Americans is toothless. It 
declares that warrantless electronic surveillance must cease after 90 
days unless a four-fold presidential certification is made to Congress. 
The certification can be easily satisfied: that the surveillance is 
vital to national security; that it is too difficult or burdensome to 
seek a FISA warrant; the facts justifying the belief that the target is 
implicated in terrorism; and, the foreign intelligence collected by the 
warrantless surveillance.
    Other provisions in H.R. 5825 are troublesome, for example, 
relaxing minimization requirements and exempting emails almost entirely 
from FISA's reach. But they pale in comparison to the evisceration of 
FISA under the ``terrorist attack'' exception.

                     IV. WHY SHOULD CONGRESS CARE?

    Congress might ask why it should be worrisome that the President be 
given unchecked power to spy. A common refrain is that if you have 
nothing to hide you should welcome government spying on yourself.
    The answer is that the right to be left alone from government 
intermeddling is the one most cherished among civilized men, as Justice 
Louis Brandeis lectured in Olmstead v. United States (1928). Unchecked 
government spying leads to abuses. Non-public information is gathered 
and disclosed to embarrass or to destroy political opponents or 
personal enemies. Just ask Ambassador Joseph Wilson and Valerie Plame. 
And think of Dr. Martin Luther King. Further, the fear of ubiquitous 
government spying encourages citizen docility and discourages dissent 
or criticism to avoid the potential of government retaliation. An inert 
people are the death knell of democracy.

                      V. WHAT CONGRESS SHOULD KNOW

    Before Congress contemplates further amending FISA, it should 
demand to know the following from the President in executive session or 
    1. A description of every foreign intelligence program operating 
outside of FISA.
    2. With regard to each program identified in response to paragraph 
1, the number of Americans targeted, the selection criteria for the 
targeting, whether criticism of President Bush is a factor in targeting 
decisions, who makes the targeting decisions, the internal review 
process of the targeting decisions, a description of the instances 
where spying on a proposed target was denied, the performance standards 
used to evaluate the officials who select the targets, the Fourth 
Amendment training received by the officials who choose the targets, 
the foreign intelligence gained that could not have been acquired 
through FISA, minimization procedures for destroying non-foreign 
intelligence information, the usefulness of the foreign intelligence 
obtained compared with the usefulness of foreign intelligence assembled 
under FISA, a listing of the terrorist plots that have been foiled 
since 9/11 or terrorists captured in which foreign intelligence 
gathered in violation of FISA played a material role and could not have 
been gathered in compliance with FISA.
    As President Woodrow Wilson remarked, the informing function of 
Congress is its most important. But Congress has been grossly derelict 
in informing itself and the public about President Bush's multiplicity 
of foreign intelligence collection enterprises. The power of the purse 
is readily available to cure the dereliction: no information, no money. 
It has sat dormant for too long.

    Mr. Lungren. Thank you very much, Mr. Fein. And we will 
begin round of questioning 5 minutes apiece.
    Mr. Fein, I always enjoy your testimony. You always make 
references to historical facts. I happen to have been the Vice 
Chairman of the Commission that looked at the treatment of 
Japanese Americans and Japanese nationals back in the 1980's 
and made the recommendation for an apology.
    One of the historical facts we unearthed was that of all 
the top people in Government, there was only one notable who 
did not support the President's Executive order which resulted 
in the rounding up of loyal Americans who happened to be of 
Japanese descent, and that was J. Edgar Hoover. And J. Edgar 
Hoover did it based on the fact that he believed he had 
gathered sufficient intelligence to determine those for whom we 
had probable cause, who might be disloyal to the United States, 
and he felt that we didn't need to round up everybody, just 
those for whom there was probable cause.
    In that case, it was the intelligence that had been 
gathered by the FBI that would have preserved the privacy 
rights of most Japanese Americans, interestingly enough. Also 
the only place where his suggestion was carried out happened to 
be in Hawaii because they believed that if they rounded 
everybody up of Japanese descent or nationality in Hawaii they 
wouldn't have had a sufficient workforce.
    And his approach actually worked; and there is an 
interesting point that you had brought up where gathering of 
sufficient intelligence actually preserved civil liberties in 
this country as opposed to limiting them.
    Mr. Eisenberg, you said in your statement that one of the 
reasons the Administration is proposing this legislation, or 
proposing a fix and at least looking positively upon major 
elements of the Wilson bill, is that the executive branch is 
overly burdened at the present time; and I think those were 
your words, ``overly burdened'' in obtaining this information.
    When you are dealing with a question of civil liberties, 
when you are dealing with a question of the rights of American 
citizens, that probably doesn't sound sufficient to support 
legislation; and so I know you can elaborate on that, if called 
upon. I wish you would.
    Mr. Eisenberg. Yes, thank you for the opportunity.
    Currently, FISA applications call for, in many cases, a lot 
of information that has very little to do with anything that 
could be protective of civil liberties. Burdens like that don't 
have anything to do with protecting civil liberties. So to the 
extent that we can streamline the application process, that 
would remove a burden from the executive branch that would do 
nothing at all to civil liberties; in fact, it would protect 
civil liberties.
    In addition, to the extent that we can refocus the 
definition of electronic surveillance so that it depends 
basically on targeting individuals inside the United States who 
have fourth amendment rights, that allows the executive branch 
and the FISA court to focus those resources on those with 
fourth amendment interests; and then, as you just pointed out, 
sometimes adequate intelligence protects civil liberties for 
other reasons as well.
    Mr. Lungren. I would like to ask, Ms. Martin and Mr. Fein. 
And that is, would you object to a bill that would be 
technology neutral with respect to the ability of the NSA to 
operate in gathering information as it was done, let's say, 
prior to the 1980's when we had this expansion or explosion of 
technology advances?
    In other words, one of the arguments made by the 
Administration, specifically by NSA and the Justice Department, 
is that a fix is necessary because the definitions it obtained 
at that time did not anticipate the technology advances that we 
had; and what we have now is have some hampering of the ability 
of the executive branch to gather that information which was 
intended to be available to them at the time that FISA was 
passed, but because of new technology, actually either prevents 
it or, in many ways, places what would be considered undue 
burden on them without any requisite protection of civil 
    Ms. Martin and then Mr. Fein.
    Ms. Martin. Well, with all due respect, I am skeptical of 
the framing of the argument by the Government. What I 
understand is that while there are some exceptions to the 
warrant requirement written into the FISA, that it was always 
understood that the fourth amendment applied and protected 
individuals inside the United States when the Government sought 
to listen to their conversations, and that if a FISA warrant 
wasn't required in certain circumstances, for example, what was 
required at a minimum was a determination by the Attorney 
General that the person who was going to be listened to was 
suspected of being an agent of a foreign power, that there was 
some probable cause as to that individual, and that that 
probable cause determination was made by the Attorney General.
    I think that the issue before the Committee is not 
adequately analyzed in terms of technology neutrality and what 
happened then and what is happening now. I think the issue that 
you have to ask is, do the fourth amendment warrant requirement 
and particularity requirement apply when the Government listens 
to conversations of people in the United States, and if so--and 
I submit that it does--are there some insurmountable barriers 
to assist them where the FISA court issues a secret warrant 
authorizing that kind of surveillance based on an 
individualized determination of probable cause? And I don't 
think they have made that case.
    Mr. Lungren. Mr. Fein, my time is up, but if you could just 
    Mr. Fein. I think the standard can be technology neutral by 
referring to the fourth amendment standard of the Supreme Court 
which is incorporated in two of the three definitions of 
electronic surveillance and FISA, namely, a reasonable 
expectation of privacy. That is what triggers the protection of 
the fourth amendment and triggers worries when there is not a 
    So if you want to amend FISA to say, through whatever 
technology, when an American has a reasonable expectation of 
privacy in his conversations, they need a warrant, but when 
there is not a reasonable expectation of privacy, a warrant is 
not required, I think that is fully satisfactory.
    If I can amplify on the Pearl Harbor incident, what I think 
your example shows is the worry that politics will enter into 
the decision of how intelligence is used and result in abuse. 
Because J. Edgar Hoover's view didn't result in the protection 
of a civil liberty of any of those 120,000 Japanese Americans, 
who stayed there well after 1944, again for political reasons, 
so November elections wouldn't disturb the Democrats.
    Mr. Lungren. A historical argument for J Edgar Hoover not 
being political.
    Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Eisenberg, Mr. Potenza, Mr. Deitz would not tell us 
what the NSA wiretap program was in any detail. Could you tell 
us exactly what you are doing with that program? We have had 
little bits and pieces come out through the New York Times.
    We are changing the law to accommodate what you are doing. 
We would like to know what we are accommodating.
    Mr. Eisenberg. We actually cannot discuss the operational 
details of the terrorist surveillance program, but I think that 
there is enough on the public record. We have provided a 42-
page paper.
    Mr. Scott. Wait a minute. You mean enough has leaked out?
    Mr. Eisenberg. No. The Department of Justice has set forth 
a 42-page legal defense of the terrorist surveillance program 
on the assumption that FISA applies to it; and I think that the 
Committee can use that to the extent it needs to worry about 
the terrorist surveillance program.
    Mr. Potenza. If I may, I would just add to that that the 
other thing that is clear on the public record is that it is a 
narrowly focused program. It is not a vacuum cleaner.
    I think General Hayden testified on the public record that 
it is not a drift net, that it is focused to accomplish a very 
specific purpose, and that is to detect and prevent additional 
terrorist activities in the homeland.
    Mr. Scott. Well, you know, you just kind of draw those 
conclusions: You are fighting terrorism; therefore, we ought to 
accept everything we do. That is not consistent with our checks 
and balances.
    Let me ask you a couple of specific questions. If someone 
in a foreign country is calling someone in another foreign 
country, is that conversation subject to fourth amendment, 
entitled to fourth amendment protections in terms of search and 
    Mr. Potenza. A foreigner calling to a foreigner in a 
foreign country does not have fourth amendment protection.
    Mr. Scott. What about the foreign target generally? If you 
have identified someone in a foreign country, do they enjoy 
forth amendment protections?
    Mr. Potenza. I would think not.
    Mr. Scott. Now, Ms. Martin has indicated that there is 
language that allows this vacuum cleaner.
    Ms. Martin you want to point to the language in the bill 
that allows that?
    Ms. Martin. Yes, sir.
    The revision of the definition of electronic surveillance, 
which is contained on page 2 in the new (f)(1), makes the 
intentional collection of information relating to a particular 
person electronic surveillance, and therefore, subject to the 
FISA warrant requirements.
    But if you are simply acquiring contents of a communication 
where one person is in the United States and one person is 
overseas, now if you look at f)(2), that does not come within 
the protection of the FISA warrant requirement.
    Mr. Scott. If both are in the United States, you have to 
get a warrant, but if one is not in the United States and one 
is, then you are back into (f)(1) where nothing is covered.
    Mr. Eisenberg, Mr. Potenza, do you want to comment on that?
    Mr. Eisenberg. Could I actually respond to that?
    Mr. Scott. Wait a minute. Have you said all that they need 
to respond to?
    Ms. Martin. I just want to be clear that when it is not 
covered is if what they did was--instead of targeting an 
individual talking overseas that they seized a whole set of 
communications, say, between one locality and another, one 
locality in the United States and a locality overseas. I don't 
see that as covered by these definitions.
    Mr. Scott. And then once you have that information you 
certainly have it and can listen into it; is that not right, 
Mr. Eisenberg?
    Mr. Eisenberg. I take it with the premise I actually think 
(f)(1) in the Wilson bill would be satisfied by such a 
collection, because I think it would be very difficult for us 
to say we are not intentionally targeting a specific person 
when we are essentially targeting 270,000,000 people.
    Mr. Scott. Can we make that clear? Would it offend your 
sensibilities if we made it clear that any installation or use 
of a device to intentionally collect information was reasonably 
believed of anybody or any group of people reasonably believed 
to be in the United States?
    Mr. Eisenberg. I think it is clear in this definition and 
by the definition of ``group'' in FISA, as well, as ``person.''
    Mr. Scott. Okay.
    Mr. Fein. I would like to add the reason why I think, 
Congressman, that clarification is needed, because at least on 
the Senate side in debating this issue, it is precisely this 
authorization of a blanket warrant that is being considered to 
be given to the President to obtain a warrant says, as long as 
you have a program that collects conversations from everybody 
in the United States and not picking any particular person out 
for surveillance, then that satisfies the statute in the fourth 
    That is why this isn't simply an academic point; it is very 
much the provision in the Senate bill sponsored by Cheney and 
Specter, and it ought to be clarified in the House. If it is 
not endorsing, that concept repudiates it.
    Mr. Lungren. Thank you.
    Gentleman from Arizona, Mr. Flake, is recognized for 5 
    Mr. Flake. Thank the Chairman and the witnesses.
    I want to get to something I asked in the last hearing and 
I don't think I ever got a firm answer for it. It touches on 
something that Mr. Fein raised, that we are going through this 
exercise with the markup of the Wilson bill, but it hasn't been 
made clear to me what we will actually accomplish in the end.
    In the end, by amending FISA, by streamlining it, by 
expanding it, by giving the President authorization to do more 
than he could otherwise, are we replacing the TSP? Or will the 
TSP run parallel to the new authorized provisions of FISA?
    Mr. Eisenberg, can you clarify?
    Mr. Eisenberg. I think we should just view TSP as separate 
from Wilson, but I will say that from the 42-page paper that I 
described earlier, on the assumption that the TSP involves 
electronic surveillance, that the one-end foreign 
communications would not constitute electronic surveillance 
where you are targeting the terrorist suspect overseas. So even 
on the assumption that it is electronic surveillance, the need 
for TSP would be reduced.
    Mr. Flake. Reduced, but still there?
    Mr. Eisenberg. That is not for me to say.
    Mr. Flake. So what have we gained in terms of the Congress, 
the first branch of Government, in terms of oversight? Have we 
gained anything? And because if it becomes too difficult under 
the streamlined provisions of FISA, does it just get kicked 
over to the TSP?
    Mr. Eisenberg. As Mr. Potenza made clear, the terrorist 
surveillance program is an exceptionally narrowly focused 
program that depends on the fact that we are in a state of 
armed conflict with al-Qaeda and that the Congress authorized 
the use of military force against al-Qaeda. So this bill would 
seek to reframe FISA across the entirety of foreign 
intelligence collection and not just with al-Qaeda.
    Mr. Flake. With all due respect, that very narrow 
application becomes as broad as you want to make it if there is 
a declaration of armed attack. Or, really, we don't know 
because we can't be briefed on it here; and so that is--I just 
want to explain again the difficulty we are in in the Judiciary 
Committee in trying to mark up corrections or streamlining of 
FISA when there is always something else you can go to, and we 
will not know whether that program is being used or not. It is 
really difficult.
    Mr. Fein.
    Mr. Fein. Yes, I think that what needs to be done if you 
want to force the Administration's hand is, put in explicitly 
what was done in the 1978 Foreign Intelligence Surveillance 
Act; if the Heather Wilson bill passes, that it shall be the 
exclusive means, exclusive of any article 2 authority of the 
President or otherwise, to conduct foreign intelligence 
    And I would wager, Mr. Congressman, if you put that in, the 
Administration would oppose it and veto it or issue a signing 
statement saying we don't have to comply.
    Mr. Flake. You suggested language earlier, something to the 
effect that Congress retains the authority to regulate the 
President's authority to obtain intelligence.
    Mr. Eisenberg, would the Administration oppose that 
    Mr. Eisenberg. I think that in the context of an armed 
conflict we're all better served where the branches work 
together. I would note that the court of review, the very court 
that Congress set up to oversee the FISA process, recently 
explained that FISA, or any statute, could not encroach on the 
President's constitutional authority.
    Mr. Flake. Ms. Martin, do you have any comment?
    Ms. Martin. Well, I agree that this is a very important 
issue, and I think that the question is, what is the point of 
Congress legislating here if, one, it has not been fully 
briefed; and two, the President won't promise to follow the law 
even when it has been amended?
    And on the question of being fully briefed, I'd just like 
to say that, you know, we supported the creation of the 
Intelligence Committees to act as a proxy for the American 
people to conduct oversight of activities that have to be 
secret. But when you are talking about amending the fundamental 
law that protects the fundamental fourth amendment rights of 
American people, I think that the Congress has the 
responsibility to make a public record about what the changes 
mean and why the changes are necessary.
    And I think that if you go back and look both at the Church 
committee report, but more importantly, at the hearings and the 
record that was made about FISA, that we can have many more 
facts on the public record without interfering with any 
national security issues.
    We are not asking to know who was the target of the 
terrorist surveillance program. But I have yet to hear any 
justification for the Administration refusing to tell the 
American people, for example, are you going outside the pen 
register and trap and trace provisions of the FISA, and getting 
addressing information on hundreds of thousands of phone calls 
in order, you know, to draw a map or to do traffic survey?
    What is the justification for not telling the American 
people that and simply asking the Congress to authorize them to 
do that without any court order?
    Mr. Flake. I thank the Chair.
    Mr. Lungren. Time of the gentleman has expired.
    Gentleman from Michigan and the Ranking Member of the full 
Committee is recognized for 5 minutes.
    Mr. Conyers. Thank you, Chairman Lungren. I appreciate this 
hearing. The only thing I can conclude is that we need more of 
them to get to where we are going.
    Mr. Potenza, do you concede that we are basically altering 
the framework of FISA under the proposals in the Wilson bill?
    Mr. Potenza. I don't think we are. Our view is that the 
proposals on the table focus FISA on its original intent, that 
is, to protect persons in the United States and to protect 
communications both ends of which are in the United States. And 
that is what the redefinition of electronic surveillance in our 
view intends to achieve.
    Mr. Conyers. Do you think that there is at least a question 
of fourth amendment violations inside the Wilson bill?
    Mr. Potenza. No, sir.
    Mr. Conyers. Well, we have never had quite as diametrically 
opposed views by excellent lawyers in this panel in the history 
of the Judiciary Committee.
    Let me ask the same question, first of Mr. Fein and then of 
Ms. Martin.
    Mr. Fein. Well, I certainly think there are egregious 
fourth amendment violations in the bill because it empowers the 
President to discard every kind of protection against abuse of 
investigative authority every time he announces, on his say-so 
alone, that there has been a terrorist attack against the 
United States, which is going to occur. In Iraq or Afghanistan, 
in our lifetimes or thereafter, there is always going to be 
there the enemy, some remnant of al-Qaeda wanting to attack us. 
And that, under the statute, suspends the fourth amendment and 
any limitations.
    I know of nothing in any Supreme Court decision, including 
the Keith case, concerning domestic surveillance that suggests 
that the fourth amendment vanishes every time the President 
says a terrorist attacked one of our troops in Baghdad, which 
is what this does.
    Mr. Conyers. Let me get her first.
    Did you want to come in, Mr. Eisenberg?
    Mr. Eisenberg. I want to say that removing something from 
the coverage of FISA removes the requirement that you get a 
court order, and the Supreme Court has long made clear that a 
court order is not always necessary.
    There are special needs beyond the ordinary law enforcement 
where the test of fourth amendment is merely reasonableness; 
and we think that foreign intelligence surveillance, especially 
in the midst of an ongoing armed conflict, is certainly a 
special need.
    Ms. Martin. That actually leads to my point, which is that 
I think we are hearing--for the first time, perhaps--a very 
radical view from the Justice Department, which is that 
Americans' communications aren't entitled to any protection 
under the warrant clause unless you are calling somebody else 
inside the United States.
    As I understand, what they are saying is that every time 
they call overseas you don't need a warrant because that wasn't 
the original intent of FISA.
    I disagree with that reading of either the legislative 
history or the legislative text, but most of all, I know of no 
fourth amendment authority that says you can listen to an 
American's telephone calls when they call England, without a 
warrant. And that is what I hear the Justice Department 
    Mr. Fein. And if I could add, Mr. Congressman, the reason 
why the statute here is so pernicious is because it lends 
congressional authority to whatever inherent Presidential power 
there is to gather foreign intelligence after a clash with 
international terrorism. And as you all know--and I know the 
chairman of Youngstown Sheet & Tube says that the President's 
authority is at its zenith when Congress has specifically 
endorsed what he is doing without a warrant; and that is why 
this legislation, if it was enacted, would mean that the 
Presidential authority to gather foreign intelligence without a 
warrant is much lower, a low watermark, which would make it 
highly dubious.
    Mr. Conyers. I think what we may be doing is a couple of 
    First of all, we are rationalizing the President's and the 
NSA's activities and conduct, and we are simply making it okay, 
at least until it gets into the court to be tested. And so that 
leaves me quite disturbed. This is a sort of a fix-it approach.
    The second thing in the time remaining, I would like Martin 
and Fein to talk about the fact that this bill doesn't--the 
Wilson bill doesn't speak to the alleged problems that are 
being complained of. I mean, it is like we are going to get a 
secret operation from--can I get one-half minute more, Mr. 
    Mr. Lungren. Certainly.
    Mr. Conyers. Just so that you don't pick up that gavel as I 
thought I saw you reaching for.
    It looks like we are fixing--we are making it clear that 
the President can do this, and it doesn't meet the problems. We 
may be besieged in the Rules Committee with a new bill that 
comes in with all kinds of new things, and that was my big 
disappointment in the PATRIOT bill.
    Could you comment on that very briefly?
    Mr. Fein. I think, Mr. Conyers, what you pointed out is, 
there are some small problems that exist with regard to FISA.
    For example, the accident that a transit of a communication 
between two foreigners in the United States is covered, that 
could be fixed with minor changes; and they have used that as 
an excuse to basically repeal the whole statute by giving the 
President unfettered authority as long as there is a conflict 
with international terrorism to ignore FISA.
    If you want to have these small fixes--and maybe 5 days is 
better than 3 days for an emergency warrant--you can have that 
in stand-alone bills. But this particular Wilson bill as the 
exception gobbles up the entire statute and really makes the 
technical fixes irrelevant in anything.
    Mr. Lungren. The gentleman's extra half-minute has long 
    Mr. Conyers. I thank the Chairman and the witnesses.
    Mr. Lungren. Gentlelady from Texas is recognized for 5 
    Ms. Jackson Lee. I thank the distinguished Chairman and I 
thank the witnesses.
    We are in a dilemma, caught between the seriousness that I 
believe each of you is concerned with, which is the securing of 
America. And my line of questioning will pointedly try to break 
the schism that seems to taint those of us who are concerned 
about civil liberties in the Constitution as well.
    The take on this hearing will be that a particular view, of 
course, will undermine the securing of America, and I think 
that is the misrepresentation that blankets a reasonable 
discussion on this issue. And I think my distinguished Ranking 
Member has made a very valid point, along with the Ranking 
Member of the full Committee, Ranking Member of the 
Subcommittee. We need more time because the headlines or the 
political headlines that will carry the day, the election day, 
will be this schism or this divide between those of us who 
raise this point.
    So I am going to try to pull you out of the ashes and, of 
course, you say you're not there. But it is how it is 
    The other point that I want to make very clear is that we 
wrote right after 9/11 a bipartisan PATRIOT Act. I think many 
of you might have been engaged in that review from both sides 
of the aisle, and, of course, prospectives, political 
conservatives and liberals. Unfortunately it was derailed. And 
I think it's important for the American people to know that we 
can secure the homeland as Americans. And frankly, I think it's 
unfortunate that we have a bill that is a political bill. It is 
a bill of someone who is in a contested election. I don't know 
where it's coming from. The Administration hasn't suggested 
they're supporting it, and frankly, this is not the way to 
write legislation that really is going to be the cornerstone of 
America's security and survival over the decades.21So I do want 
to raise to both Mr. Eisenberg and Mr. Potenza and Ms. Martin 
and Mr. Fein the question again about how the Wilson Bill 
protects U.S. citizens from unreasonable search or seizure, for 
Mr. Eisenberg and Mr. Potenza. And how, for Ms. Martin and Mr. 
Fein, again, though it may have been crafted another way, how 
it interferes.
    And for Ms. Martin and Mr. Fein, and I'm going to ask, if 
you would, engage in the rebuttal that questioning this 
approach is unpatriotic or undermines the Nation's ability to 
secure itself, because I think any one of us that are sitting 
across this table would be the first in front, along with our 
fellow Americans, to defend this Nation. But that is not the 
interpretation that is given.
    And the last point of my questions is that, Mr. Fein, you 
have made a very good metaphor, analogy about the fact that an 
attack in Iraq could be interpreted as such. And I was 
listening, and so I went to section 112, and I think this is 
the language, and you're right. It's not now. It does not make 
a specific definition to suggest that the President would be 
talking about on our soil. Maybe that's what we need to talk 
about. Because in actuality, I wonder whether the British find 
with the individuals with the liquids could be considered a 
potential attack because they were entering the United States.
    So people are going to be concerned. Listen to these folks 
who are sitting here. They are not concerned about securing 
America. You know, we give away our rights. We only worry about 
that when we are indicted, but I ask quickly for Eisenberg and 
Mr. Potenza to answer me how the Wilson Bill protects. And 
quickly, I would like to ask the Chairman's indulgence so that 
Ms. Martin and Mr. Fein can answer the last two questions. Mr. 
Eisenberg, Mr. Potenza, how did it protect?
    Mr. Eisenberg. I would like to distinguish between the 
first two aspects of the Bill. The first is the sort of FISA 
modernization and the second is the programmatic issue. I'm 
going to focus my remarks----
    Ms. Jackson Lee. Just because I am under the gun 
specifically, I need you to just answer that question, how does 
it protect citizens from unreasonable search and seizure? And 
if I had more time----
    Mr. Eisenberg. Electronic surveillance would focus on U.S. 
persons, on people in the United States who have constitutional 
rights. That's how it would protect U.S. person rights. That 
would be the entire focus of the bill. We would take resources 
away from focusing on situations in which U.S. person rights, 
some people in the United States are not at stake and devote 
those resources and the attention of the FISA court to those 
situations that most directly implicate the rights of U.S. 
    Ms. Jackson Lee. Mr. Potenza?
    Mr. Potenza. Yes, ma'am. By focusing on the target, by 
causing the focus on the target of the collection, it puts us 
in a posture where we are today and many of our other 
collection sources where we protect U.S. citizens' rights, 
because we apply reasonableness standards, which is regulated 
by the executive branch minimization procedures that have been 
filed with and reviewed by the intelligence committees and 
subject to Intelligence Committee oversight. So focusing on the 
target protects U.S. persons' rights.
    Ms. Jackson Lee. Ms. Martin and Mr. Fein.
    Ms. Martin. Well, I want to say that I think that the 
framework of FISA has served our national security interests 
superbly. And it does it by focussing the limited 
counterterrorism resources that are available and forcing the 
intelligence community to make a determination before it 
surveils somebody that there is some good reason to surveil 
that person. Because every time they do a surveillance, it 
means they are not doing something else, and that the whole 
purpose of FISA is to say, look at the people who you have some 
basis to suspect are being terrorists, and that's what's being 
deleted from here. It has also served national security 
interests very well because the people charged with carrying 
out FISA have been secure, that they do not face any personal 
liability for eavesdropping. And if I could just add one final 
    Ms. Jackson Lee. Well, I want to get to Mr. Fein.
    Mr. Lungren. Well, the gentlelady's time was expired almost 
2 minutes ago, and I have other Members who want to talk. So if 
Mr. Fein could just shortly respond.
    Ms. Jackson Lee. Thank you, Ms. Martin.
    Mr. Fein. Civil liberties aren't protected at all, because 
you will notice the Administration still has not repudiated to 
you, indicated, nor everything in the bill anyway because 
there's inherent article 2 power to surveil without any 
warrants because we're in a class with international terrorism. 
Whether they call it narrow exception or broad exception, it's 
as wide as the President makes it.
    Now, with regard to how we characterize our defense of 
FISA, as protecting national security, I recall a statement by 
Justice Robert Jackson saying, checks and balances don't make 
for weak Government. They increase Government strength because 
it makes citizens confident that the Government is performing 
according to the rules and makes them more willing to yield 
liberties because they know their checks and balances. And that 
shows, in my judgment, that following FISA will strengthen 
rather than weaken the Government's internal ability to marshal 
that support to defeat terrorism.
    Mr. Lungren. Time of the gentlelady has expired. Now the 
gentlelady from California is recognized for 5 minutes.
    Ms. Waters. Thank you very much. Mr. Chairman and Members. 
I think it's been stated more than once that it's unreasonable 
to expect us to be able to mark up this legislation any time 
soon, given the fact that not only have we just recently 
received information from the Administration, but some of it is 
conflicting, I think. But let me just ask a few questions, some 
of which may have been raised already. I would like a clear 
definition of our--and distinctions that are being made between 
an agent of a foreign government and a suspected agent with 
information, relevant information who may not be an agent of 
the government. Would you please, Mr. Eisenberg, tell me what 
distinction--distinctions are being made between----
    Mr. Eisenberg. Well, I think the reason to add the agent of 
a foreign--as an agent of a foreign power, some non-U.S. person 
with significant foreign intelligence, which is a provision we 
would actually narrow is because it's not always clear there is 
an agency relationship.
    Ms. Waters. Would you speak a little slower and a little 
    Mr. Eisenberg. Sure. I think the point in Senator--in 
Representative Wilson's bill of adding that as an agent of a 
foreign power is that there are circumstances where non-U.S. 
persons possess significant foreign intelligence, and it's not 
clear whether they are or are not agents of foreign powers. We 
would actually narrow that a little bit.
    Ms. Waters. A little bit?
    Mr. Eisenberg. Well, we would----
    Ms. Waters. Somebody would decide that there's somebody who 
is not an agent of a foreign government. You have not been able 
to tie them to that government. You're not able to connect them 
to the government, but you think they may have information 
that's relevant or pertinent that you could then place them 
under surveillance, is that correct?
    Mr. Eisenberg. Essentially.
    Ms. Waters. So that could be anybody.
    Mr. Eisenberg. No. It would have to be a non-U.S. person 
who has, in our view, some significant foreign intelligence 
    Ms. Waters. Such as someone who works for a corporation 
    Mr. Eisenberg. I would comment on----
    Ms. Waters. I beg your pardon?
    Mr. Eisenberg. I would not want to comment here on what an 
example would be.
    Ms. Waters. Well, let me ask you, since you are explaining 
to us what it is, could this person be a person who works for a 
United States corporation in a legitimate job, performing a job 
for a U.S. corporation?
    Mr. Eisenberg. Under the proposal, as I understand it, if 
it's a non-U.S. person----
    Ms. Waters. Yeah. Non-U.S. persons do work for 
corporations. They are here on visas, they could be here, they 
could be in anyplace in the country--in the world, working for 
a U.S. corporation. These persons could be targeted because 
they have some trade secrets?
    Mr. Eisenberg. I think that we would not be using it for 
trade secrets. I think that we would be using it when that's 
the only way we could gather foreign intelligence that's 
valuable to the United States.
    Mr. Scott [continuing]. Foreign intelligence.
    Ms. Waters. Of course it could be. Absolutely. Do you 
recognize that we have cooperation with other countries where 
we trade information, usually it goes through some kind of 
process where it is the development of weapons or the kinds of 
things that we have decided to share information about that's 
legitimate, what if those persons or persons in these 
corporations could be considered a target because they have 
this information? Is that what you're telling me?
    Mr. Eisenberg. Conceivably. I mean, in addition----
    Ms. Waters. I didn't hear. Conceivably? Is that what you 
    Mr. Eisenberg. That's what I said.
    Ms. Waters. Okay. Go ahead. Continue to explain.
    Mr. Eisenberg. In addition, we would add another category 
which would be proliferators of weapons of mass destruction. 
Non-U.S. persons who are believed to be proliferators of 
weapons of mass destruction.
    Ms. Waters. Well, excuse me. Let me go to the gentleman.
    Mr. Fein. Number one, I think, Ms. Congresswoman, your 
question is pointed out the theory of the Bush administration, 
which is just, trust me, we only go after the bad guys with 
serious information. The answer here is suggested there is a 
word in the statute that isn't there, significant foreign 
intelligence information, and only if it's necessary to thwart 
some dangerous plot. That certainly isn't the language here. It 
says any foreign intelligence information they are targeting 
and foreign intelligence information is defined to include 
anything relating to national security or foreign policy, like 
whether they know the internal politics of the government in 
Iran or in Pakistan or something of that sort. This is an 
invitation to surveil anybody under this, this open-ended 
    Ms. Waters. Yes. Did you have something else you wanted to 
say? I think that's what I've concluded. Thank you.
    Mr. Eisenberg. Two additional points. Thank you.
    Ms. Waters. Yes, please.
    Mr. Eisenberg. First, I don't think significant is in the 
bill. We would recommend that it be put in the bill and second, 
this would be pursuant to a court order.
    Ms. Waters. All right. So--did you have something you 
wanted to say about that, sir?
    Mr. Potenza. No ma'am. I just wanted to emphasize that what 
we're talking about here is changing the definition to allow us 
to get a court order.
    Ms. Waters. All right. But you don't define words like 
significant. That's left to one's imagination, I suppose.
    Mr. Eisenberg. And the judge's.
    Ms. Waters. And the judge's imagination rather than the 
Constitution of the United States.
    Mr. Eisenberg. Well, no, no, no. Any surveillance would 
have to satisfy the fourth amendment, and here a judge would be 
deciding if it does.
    Ms. Waters. You don't set forth for us in this bill what 
the judge should consider in determining what is significant.
    Mr. Eisenberg. Well, FISA currently uses ``significant.'' 
we have to certify that a significant purpose of the 
surveillance is to gather foreign intelligence information 
already. So it's a term that is already well within FISA.
    Mr. Lungren. Okay. The gentlelady's time has expired.
    Ms. Waters. Thank you. Thank you very much.
    Mr. Lungren. The gentleman from Massachusetts I think is 
pensive and ready to take his 5 minutes.
    Mr. Delahunt. Thank you, Mr. Chairman. I'd like to just 
pose a question first to Mr. Fein and then to Mr. Eisenberg. I 
think it's important that the American people understand 
certain basics about the current state of the law. If al-
Qaeda--if an al-Qaeda operative is calling from overseas and an 
American picks up the phone here in this country, does the 
current statute require the NSA to stop listening?
    Mr. Fein. No. That's the hypothetical, that's spherous and 
is repeatedly used.
    Mr. Delahunt. Mr. Eisenberg, could you respond to that 
    Mr. Eisenberg. I would defer to Mr. Potenza, but I think it 
might depend on a whole lot of circumstances.
    Mr. Delahunt. Okay. Mr. Potenza.
    Mr. Potenza. If we were collecting it in the United States, 
we wouldn't be doing it without a court order.
    Mr. Delahunt. Mr. Fein.
    Mr. Fein. When the target is the foreign intelligence 
agency abroad, there's no reasonable expectation of privacy in 
the fourth amendment, as the Supreme Court has held, doesn't 
apply outside the continental United States. Now, there has 
been an advertence to a situation where if in an unusual way 
that there is a transit of a call into the United States so 
it's intercepted here, there could be a problem, but everyone 
agrees that's a fixed, that is acceptable. The basic fourth 
amendment doesn't apply----
    Mr. Delahunt. Right. The President keeps saying that 
repeatedly, repeatedly, and let me suggest that that is 
misleading to the American people. Mr. Eisenberg.
    Mr. Eisenberg. I'm not sure, but I think there may be a 
misunderstanding. Under current FISA, definition two, there 
doesn't have to be a reasonable expectation of privacy. All 
that matters is that there's a wire interception in the United 
States, and one of the communicants is in the United States.
    Mr. Delahunt. And the NSA would not have to stop listening.
    Mr. Eisenberg. Well, it would need a court order.
    Mr. Delahunt. It would need a court order or what would 
implicated would be the emergency exception, the 72 hours to go 
and get the court order?
    Mr. Eisenberg. Well that's actually not the way the 
emergency authorization provision works.
    Mr. Delahunt. Okay. Explain.
    Mr. Eisenberg. In order to go up in the emergency 
situation, we first have to assemble enough information so that 
the Attorney General can determine that the requirements of 
FISA are met, and only after the Attorney General makes that 
determination can the surveillance begin. And that's a process 
that could take as long as a normal application process to 
begin with.
    Mr. Delahunt. Okay. Mr. Fein, would you care to respond, or 
Kate Martin?
    Mr. Fein. Did you want to----
    Ms. Martin. Well, I just want to make an additional point. 
If the Government reads the FISA as requiring a court order to 
continue to listen to that conversation, they can go get a 
court order because, according to their description, there's no 
doubt but that there's probable cause that the person they're 
targeting is an agent of a foreign power.
    Mr. Delahunt. Because they're aware of the fact that it's 
an al-Qaeda operative that is making the call.
    Ms. Martin. That's right. And they can----
    Mr. Delahunt. Because that is the target.
    Ms. Martin. They go get a court order.
    Mr. Delahunt. Would that be sufficient to secure a court 
order, Mr. Eisenberg?
    Mr. Eisenberg. You would have to show to a court that there 
is probable cause to believe that the person is an agent.
    Mr. Delahunt. In your opinion, a call from an al-Qaeda 
operative, would that be----
    Mr. Eisenberg. Sure.
    Mr. Delahunt. Would that be sufficient PC?
    Mr. Eisenberg. Sure.
    Ms. Martin. If I might add, and as I understand on the 
public record, this--they must determine before the 
conversation is received who they consider to be the al-Qaeda 
agent of a foreign power overseas. There's nothing blocking 
them from going and getting a court order saying, every time 
Mr. Al Qaeda calls into the United States, we want an order to 
listen to any phone call he makes into the United States or any 
phone call he receives from the United States.
    Mr. Delahunt. Would you concur with the statement by Ms. 
Martin, Mr. Eisenberg?
    Mr. Eisenberg. Can you repeat that?
    Mr. Delahunt. No. We don't have time to repeat it. Let me 
just make an observation. It's been 5 years since 9/11. It's, I 
think, last December The New York Times reported the GSP, and 
it's 7 weeks to an election. And we're told that tomorrow we're 
having a mark-up of this bill. And to date, the Administration 
has not come forward with a draft proposal.
    People can draw their own inferences. I happen to concur 
with the observations by Mr.--by Mr. Fein. I believe that there 
are some issues that are worthy of significant discussion, but 
to ask this Committee and this Congress to operate after two 
hearings in the past week and one briefing I think is not good 
policy making, to begin with, and not genuine consultation. 
You've had years now to bring forward these problems as they've 
emerged and to consult with Members of the Judiciary Committee 
who are here, sworn to uphold the Constitution. I just find it 
stupefying why, you know, there appears to be a sense of 
urgency, particularly, as you refer, Mr. Eisenberg, to that 42-
page paper, where if you examine the rationale under article 2 
and the Iraq War Resolution, you really don't need this anyhow.
    You don't need the PATRIOT Act and you don't need FISA. You 
can do exactly what you want. I would request that you go back 
to your superiors and suggest that we enter a genuine 
consultative process that really works for the best interest of 
the United States and defends the Constitution. With that, I 
yield back.
    Mr. Lungren. I thank the gentleman for yielding. And 
because of the good faith and treatise of your Ranking Member, 
Mr. Scott, we'll go to a second round here, as long as we all 
stay within our 5 minutes, except for the Chairman.
    Let me give myself 5 minutes to start the second round. 
Both Eisenberg and Mr. Potenza, there's been the expression, 
vacuuming up of calls of U.S. persons, and that has sort of 
been just sitting out there. Can you tell us whether there are 
any protections outside of FISA that prevents the NSA from 
vacuuming up all calls of U.S. persons?
    Mr. Eisenberg. Yeah. I'll start, and then I'll----
    Everything that the United States has--all the activities 
of the intelligence community are under Executive Order 12333, 
or other like authorities, and they're all governed by 
procedures that are designed to protect the fourth amendment 
rights of U.S. persons. Information is minimized, that means 
whenever we acquire information, we always look to see what we 
can get rid of, what we don't need and we only retain what we 
actually need for the foreign intelligence mission. Congress 
serves an oversight function. There are plenty of oversights 
outside of FISA.
    Mr. Potenza. I would--I would just add that from the NSA 
perspective, the collection we do outside of FISA is--all of 
our--all of our collection, but particularly that outside of 
FISA is driven by specific intelligence requirements that are 
vetted and verified by the Director of National Intelligence. 
Our collection's then focused to try to identify the 
communications that will yield that information, information 
pertinent to that request. And we do that because in order for 
our activities to be constitutional, our searches must be 
reasonable, and they're reasonable because of the effort we 
make to select and filter communications.
    Mr. Lungren. Let me ask you, for how long has the 
minimization program, minimization policy been in effect? Did 
it start with this Administration, did it start with FISA, did 
it start prior to that?
    Mr. Potenza. I can speak only with certainty from the late 
1970's, and that's when they started. I got to NSA in 1980 and 
in the aftermath of the Church and Pike Committee 
investigations, the passage of FISA, and there were both 
statutory that the FISA minimization procedures, and then there 
were the minimization procedures required by each of the 
Executive orders that have been signed by the President, 
starting with the Ford Executive order.
    Mr. Lungren. Ms. Martin, just a yes or no answer. Do you 
think there's any reason to streamline the FISA process?
    Ms. Martin. I accept the Government's representation that 
the 45-pages are a problem for them. And that OIPR is a 
bottleneck and that OIPR perhaps needs streamlining.
    Mr. Lungren. So here's the conundrum that I find ourselves 
in, that I find us in, and that is, FISA is based on a 
proposition that we must go before a court to show probable 
cause in those various categories to grant the authority to the 
NSA to do their work. The details that we have established 
requiring the Attorney General to make that finding have at 
least, it seems to me, proven to be difficult in that the 
Attorney General really wants to make sure that he's got 
probable cause under those circumstances, and it takes a great 
deal of operation, great deal of time not only by lawyers, but 
by analysts to do this in order to be able to achieve that.
    If you would accept that, just--I know this might be a 
tough hypothetical for you, Mr. Fein, to accept, or Ms. Martin, 
if that be true, how would you suggest that we resolve that 
problem? If on the one hand we say, we want the attention of 
the Attorney General, not to delegate it to anybody else, we 
want this standard of proof, and that means we really have to--
to provide it, and that all takes time, energy, effort, etc., 
how do we work ourselves through that problem? If you accept 
that that is a problem.
    Mr. Fein. Well, it seems to me, you could expand the 72 
hours so that the Attorney General would not have to compile 
all of that information before beginning the surveillance, he 
would have then a time lay where then he would have an outside 
check by a judge. But I think you would need to remember, Mr. 
Chairman, that the purpose of FISA, the reason why we had it 
was because we had experience of 50 years of unchecked 
executive power to gather domestic and foreign intelligence, 
and that was 50 years of substantial abuses.
    As Brandeis said, sunshine is the best disinfectant, and 
that is part of the reason why you have at least the sunshine 
of a FISA court to look at these things. Everyone would agree 
if there's no possibility of abuse then surely it's silly to 
just impose administrative burdens and these standards that 
have to be shown to a court.
    But history is the opposite. There are abuses when you 
don't know what is going on, and you would just have one branch 
looking at itself. You may recall recently the fiasco of the 
NSA telling the Department of Justice, hey, you can't have 
security clearances to come and examine the authorization we 
had to begin this domestic surveillance problem. It wouldn't 
even trust its own Department of Justice.
    Mr. Lungren. Maybe I could ask Mr. Eisenberg and Mr. 
Potenza, as my time is about ready to run out.
    Mr. Delahunt. Mr. Chairman, I ask unanimous consent that 
the Chair grant itself as much time as it needs or wants.
    Mr. Lungren. I appreciate that. Well, now it's only two to 
one. It was four or five to one there for a while before. Mr. 
Eisenberg and Mr. Potenza, what is wrong with the 72-hour 
exception or expanding the 72-hour exception to 2 weeks, or 
whatever it is?
    Mr. Eisenberg. Ultimately, I don't think that that is the 
answer, although expanding the time could help in many ways, 
but as I explained earlier, before we can start surveillance, 
whether it's a 72-hour period, a 2-week period, whatever, the 
Attorney General has to, before that point, determine that the 
facts exist to satisfy the requirements of an application. We 
can't just flip a switch, go up for some amount of time and 
then make it okay later. We've got to go----
    Mr. Lungren. He has to make that determination before you 
actually begin the----
    Mr. Eisenberg. That's correct. And if, in the event we 
don't end up filing an application, or if the court were to 
deny it, there's a presumption in the statute that it's 
disclosed to a U.S. person. So there are tremendous incentives 
against doing this.
    Mr. Lungren. Mr. Potenza.
    Mr. Potenza. I would just like to add that--that in our--
the focus, as at least we understand it, is to not--is to focus 
on what we intend to protect, the rights of those persons 
entitled to privacy protection under the Constitution, and to 
refine the system, given modern telecommunication--the modern 
telecommunication world so that we're not affording those 
protections inadvertently to persons overseas who may pose a 
threat to the United States.
    Mr. Lungren. All right. I'll yield. I've gone over my time. 
Mr. Scott, you have 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. On page 2, line 5, it 
says ``D, possesses or reasonably expected to transmit or 
receive foreign intelligence information while in the United 
States.'' now who does that apply to? The way the bill is 
written, it's a little unclear.
    Mr. Eisenberg. I believe it would apply to a non-U.S. 
person who possesses intelligence.
    Mr. Scott. And so what happens--what is that amending?
    Mr. Eisenberg. The definition of an agent of a foreign 
power in FISA.
    Mr. Scott. Okay. So now anyone who possesses, or is 
reasonably expected to transmit or receive foreign intelligence 
information, we've already ascertained that foreign 
intelligence is not national security terrorism. It could mean 
anything that helps foreign policy along like a trade deal, 
digging up dirt on foreign--on public officials that might help 
us negotiate with them, anything on foreign intelligence, is 
that right?
    Mr. Eisenberg. Well, foreign intelligence is actually 
defined specifically in FISA.
    Mr. Scott. That's right. Anything that helps along the 
foreign policy, helps us negotiate a trade deal or anything 
else. Also terrorism.
    Mr. Eisenberg. No, no. It's actually far more narrow than 
    Mr. Scott. What does foreign intelligence mean?
    Mr. Eisenberg. It means----
    Mr. Scott. Go down to that catchall phrase down at the end, 
the last one.
    Mr. Eisenberg. Well, it's section 101(e) of FISA. And I 
would just recommend you to read it.
    Mr. Scott. Anything helping along the foreign policy.
    Mr. Eisenberg. No. 101(e) 1-A, for example, talks about 
actual or potential attack or other grave or harmful acts----
    Mr. Scott. Keep going.
    Mr. Eisenberg [continuing]. Of a foreign power.
    Mr. Scott. So you are scaring people to death with the 
terrorism, but keep going.
    Mr. Eisenberg. Next one. Sabotage or international 
    Mr. Scott. Keep going.
    Mr. Eisenberg. Clandestine or----
    Mr. Scott. Keep going.
    Mr. Eisenberg. That's it. Except for intelligence with 
respect to a foreign power or concerning a U.S. Person that is 
necessary to the security of the United States or the conduct 
of the foreign affairs.
    Mr. Scott. Ah! What's that last one? Say that last one 
again. You have been scaring people to death on the terrorism 
and now you finally get to the end that I've been trying to get 
you to. Foreign policy.
    Mr. Eisenberg. Necessary to the conduct of the foreign 
affairs. I mean, necessary.
    Mr. Scott. Necessary to the foreign--yeah, like negotiating 
a trade deal.
    Mr. Eisenberg. That's one heck of a trade deal.
    Mr. Potenza. It could be, but if the judge were persuaded 
that that was foreign intelligence information, the judge would 
approve the surveillance.
    Ms. Martin. Could I just----
    Mr. Scott. Ms. Martin.
    Ms. Martin. You know, it seems to me this is an example of 
how this complex bill could not be understood between now and 
tomorrow because I heard my colleague say that the amended 
definition of an agent of a foreign power applied to the 
situations where they get a court order but that's not how I 
read the bill. The bill in section 3 expands the situation when 
they can do warrantless surveillance on the certification of 
the Attorney General. And it refers to an agent of a foreign 
power as defined in section 101(b)(1). That's the section that 
Chairman--Mr. Scott, that you were just referring to, is 
amended by the statute to make it much more than a suspected 
terrorist. And it's this kind of confusion about what the bill 
actually accomplishes.
    Mr. Scott. Mr. Fein, what is foreign intelligence?
    Mr. Fein. It includes, as you pointed out, anything 
relating to our ability to conduct foreign relation.
    Mr. Scott. So when they scare you with the terrorism, it 
also includes----
    Mr. Fein. Well, things like what is the--what are the 
reserves that are being held in the Central Bank of Iran, what 
are the trade deficits in China? What would help us negotiate a 
free trade deal with Bahrain. All of those things are foreign 
intelligence within the meaning of the statute, all of them are 
open-ended and really place no serious limits on surveiling 
    Mr. Scott. Now Mr. Fein, Administration officials have gone 
to great lengths to show that their checks and balances and 
they have Executive orders and Attorney General and everybody 
within the executive branch checking and balancing on itself. 
What's wrong with that?
    Mr. Fein. Well, that's certainly not the envision of the 
Founding Fathers who didn't think checks and balances was 
checking yourself. Checks and balances is what they called 
making ambition to counteract ambition, having a different 
branch of Government with a different agenda, making that 
examination and survey. That's precisely why this branch in 
FISA required that a court examine the validity of the facts 
asserted to establish probable cause. And you can imagine that 
within the executive branch, in NSA, the professionals who 
single out people for surveillance aren't going to get punished 
for spying too little. They get promoted the more intelligence 
they gather.
    That's what their mission is. Their mission isn't to cease 
spying because they think the fourth amendment is a problem. 
That's precisely why you need a real check outside the 
executive branch if this is going to function. And I want to 
return to history. There were 50 years of unchecked electronic 
and other surveillance for foreign and domestic purposes where 
the Administration did just what they're saying. We all checked 
ourselves, the Attorney General checked what the CIA and FBI 
was doing, you can open mail without any violations of the law. 
That's why we had FISA. It didn't just fall from the sky by 
Congress wanting to be pestiferous and hamper the executive 
branch. We shouldn't forget that. Human nature doesn't change 
with regard to power.
    Mr. Lungren. Mr. Scott.
    Mr. Potenza. Mr. Chairman, may I just have a second? I must 
respond to that. I can't sit here and let someone suggest that 
the men and women at the National Security Agency are running 
amuck. That is simply false. We do, outside of FISA, the 
collection against foreign targets where we, incidentally, 
acquire information to, from or about U.S. persons every day. 
That process has been overseen for 25, 26 years by the 
Intelligence Committees, and it's been validated as lawful by 
the Department of Justice and compliant with the fourth 
    So it's simply false to suggest that the men and women of 
the Agency don't know what the rules are, don't follow the 
rules, and that we don't have mechanisms to comply with those 
rules and to check that compliance and that there are not 
external bodies to come in to check that.
    Ms. Martin. Mr. Chairman, if I might, we don't mean to 
suggest that the men and women of the NSA do anything other 
than operate within the rules and the orders that they are 
given by the political people in charge of the agencies and in 
charge of the White House. It has nothing to do--I am sure that 
Mr. Potenza and the rest of the career people follow the laws 
and follow the President's orders. We are talking about the 
President's orders here.
    Mr. Lungren. I thank the gentleman for his question. I 
would just say, I think Mr. Potenza also said there was 
oversight done by the intelligence Committees, of which I used 
to be a Member. And unless they're doing absolutely nothing, 
there is at least that check.
    Mr. Scott. I think there's a difference between telling the 
Intelligence Committee what you're doing under threat of 
imprisonment if they tell anybody, and a check and balance that 
can actually stop the proceedings from going forward.
    Mr. Lungren. I appreciate the gentleman's comments. If 
that's a problem, then maybe we in Congress ought to look at 
the laws that we set up with respect to how the intelligence 
Committees operate.
    Mr. Delahunt. Would the gentleman yield?
    Mr. Lungren. Like I pointed out before, the ultimate power 
we have under the Constitution is the power of the purse. Power 
of the purse I assume presumes that we are informed. The 
intelligence Committees have the responsibility to keep us 
informed. If they are not doing that, then we ought to be the 
    Mr. Delahunt. Would the Chair yield?
    Mr. Lungren. Well, it's on Mr. Scott's time, even though 
it's over time.
    Mr. Delahunt. I hear what you are saying, but the reality 
is, a short time ago my memory is that the Chairman of the 
Intel Committee, the Republican Chairman, Mr. Hoekstra, sent a 
letter or expressed publicly his concern about the lack of 
cooperation coming from the Administration. If we want to talk 
about oversight and congressional oversight, I think we've got 
to be honest with the American people. It is not happening.
    You and I both--well, the Department of Justice, for 
example, can you remember the last time that the director of 
the FBI appeared before either this Committee or the full 
Committee? How many appearances has Mr. Mueller made in front 
of this Committee?
    Mr. Lungren. Well, all I know, since I've been here, once.
    Mr. Delahunt. Once? I can't remember a single time since 
he's been appointed. My point is----
    Mr. Lungren. Well, I was here. And I appreciate the 
gentleman's comments. But we are----
    Mr. Delahunt. But we're talking about oversight as somehow 
that's going to be the remedy, and again,----
    Mr. Lungren. Maybe under the Constitution it is. The 
gentlelady from Texas is granted 5 minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman. And I want to 
echo I think the remarks even more strongly than Ms. Martin 
made to Mr. Potenza and to Mr. Eisenberg. It is not a question 
of the individual patriots that work for this Government. We 
recognize and respect your love and affection for this Nation, 
and your desire to secure her. But I think as I am reminded of 
the fledgling 13 Colonies, the basic anchor and message of 
those constitutional writers was the preservation of liberty, 
certainly the checks and balances that would be quite different 
from the structures of Government and what they perceived to be 
oppression that they fled.
    And that is, even today, equally important, that putting 
aside the personal integrity of any of those who work for any 
of the agencies that are now before this Committee, there are 
certain other intervening factors, and that is to the 
allegiance of the Commander in Chief of which you work for, and 
the call of that political office to give directions that may 
contravene the liberties of the people we have an obligation to 
protect. One of the--and I want to be redundant. You don't like 
to, but I do want to be redundant in that there is an 
unreadiness here, and I believe that we are moving in the wrong 
direction rapidly without further review of this legislation, 
without a more cooperative collaboration.
    I recall that I don't see a statement from the 
Administration. I've heard--both of you indicate we're going to 
do this or we're going to do that. So I assume you're either 
going to funnel amendments in, 24 hours, I guess you expect to 
have them in tomorrow. I don't believe that that's sufficient 
time for review. But let me now proceed with my line of 
questioning, and I am going to go back to the arguments of 
definition. I am going to start, Mr. Fein, this time because I 
went back to the language. I thought I was going to find 
terrorist attack in the Wilson bill.
    I don't know if I would find it in the FISA. I believe not. 
And I want to--again, whether or not it is seemingly political 
for me to try to analyze it from a political perspective, I am 
outraged when there is the smear or the taint that when you 
speak about civil liberties, all of a sudden you become a 
nonpatriot, and you are putting this Nation in jeopardy, and as 
a Member, as I said, of the Homeland Security Committee, I take 
the security issues and concerns of this Nation to heart, as I 
know that my colleagues do as well.
    But at the same time, we are looking at a bill, and the 
reason why I keep raising the Wilson Bill is it's before us 
tomorrow. And it does say simply that the President can declare 
this 45-day no constraints whatsoever, following a terrorist 
attack against the United States. Does not say on United States 
soil. Does not equate to the 9/11 horrific tragedy, which we 
frankly understand, but it says against the United States. So 
you know just recently, which I abhor, and we certainly 
appreciate what seems to be the fast action of the Syrian 
government, but as you well know, there was an attack on the 
Syrian U.S. Embassy that triggered, that was against the United 
States, and we're very grateful for the lack of loss of life of 
    But the question is, would that trigger a warrantless 
search for individuals who might have been calling their 
mother-in-law in the region? And let me just finish by 
suggesting--and I also notice that this allows a President to 
submit a notification to each Member of the congressional 
Intelligence Committee, and a judge having jurisdiction in the 
section would find and then it goes along those lines, but 
again, it's important to isolate this feature that we're 
talking about, that I don't think Americans know what they're 
getting themselves into.
    And if you could just be clearer on how we can secure the 
homeland and that by arguing against this randomness, that 
we're not undermining it.
    Mr. Fein. Well, first, with regard to the definition of a 
terrorist attack against the United States, because there's not 
a special definition in the statute, the ordinary plain meaning 
of the word. Attack against the United States would mean 
anytime our soldiers in Afghanistan are attacked by Taliban, 
which is every day, that's an attack against the United States.
    Ms. Jackson Lee. Because there's no limitations.
    Mr. Fein. There's no limitations at all. It doesn't say how 
large it has to be, it doesn't say if the attack succeeds. It 
just means that there is an attack. Every day in Iraq, our 
soldiers are attacked by terrorists.
    Mr. Lungren. Without objection, the gentlelady is given two 
extra minutes.
    Ms. Jackson Lee. You are very kind, Mr. Chairman. Thank you 
so very much.
    Mr. Fein. With regard to protecting the United States and 
the American people, certainly that has to be a very paramount 
concern. The Constitution is not a suicide pact but surely a 
free government has to take some modest risks in order to keep 
a democratic and free country alive. If we decided we would 
place security above all else, we would simply eliminate the 
fourth amendment with regard to everything. We would have a 
gestapo. We would policemen at every corner. We would let no 
one into the United States.
    We would say oh, you can't criticize the Government because 
that would embolden the enemy. We have heard if you voted 
against Joe Lieberman, that is emboldening the enemy, so that 
could be made a crime. If the sole purpose was just security, 
that's why you have to have some measured balance between the 
    And the history of the FISA has shown, even after the 
warrantless surveillance program began, that it has worked 
effectively as was amended by the PATRIOT Act. And I go back to 
the same Department of Justice, July 31, 2002, FISA is 
impeccable, it's flexible, it's nimble, it enables us to thwart 
terrorists in the bud. What has changed since that time? It 
doesn't seem to me there's any showing that these loopholes are 
necessary to increase our safety.
    Ms. Jackson Lee. Thank you. Mr. Eisenberg, we submitted to 
you a resolution from distinguished gentleman, Mr. Wexler, to 
get a number of documents. What is the status of that 
resolution? And do you have a sentence to tell me whether or 
not you were handcuffed before 9/11 because you did not have 
the Wilson bill?
    Mr. Eisenberg. I'm sorry. I actually don't know what the 
status of the Wexler----
    Ms. Jackson Lee. Was anyone--because this was unanimous out 
of this Committee, we've heard nothing to provide us with 
documents, and I am wondering why the act of a congressional 
Committee such as the Judiciary Committee has not been 
responded to.
    Mr. Eisenberg. All I can do is promise to get back to you.
    Ms. Jackson Lee. I hope that is the case. Did you hear if 
the Wilson bill would have helped you, didn't FISA provide all 
the documents necessary if it had been acted upon with respect 
to 9/11?
    Mr. Eisenberg. Would the Wilson Bill have helped us avert 
    Ms. Jackson Lee. Had any impact on it, yes.
    Mr. Eisenberg. It's obviously very difficult to make such a 
determination, and I will defer to Mr. Potenza, but my guess is 
that it would have. It would have gone a long way toward that 
by allowing surveillance in international communications and 
allowing NSA to be able to do its activities more easily.
    Ms. Jackson Lee. But you would have needed to have the 
intelligence and my understanding was the intelligence was 
already here on the ground, we just didn't connect the dots. We 
didn't get the two intelligence entities together, which is I 
think a totally different issue from surveillance. Mr. Potenza, 
do you have any insight on that?
    Mr. Potenza. I can't say a lot on the public record, but if 
we had had this authority, we do think there would--we would 
have been able to target some foreign targets that might very 
well have not prevented 9/11, but perhaps identified 
significant lead information.
    Ms. Jackson Lee. But you would have had to have had the 
intelligence to do so as well.
    Mr. Potenza. We did have--we did have intelligence about 
foreign information. What we lacked was a connection between 
that foreign information and the United States.
    Ms. Jackson Lee. Mr. Chairman----
    Mr. Lungren. Because of my inability to handle the light, 
I've actually given the lady an extra 5 minutes.
    Ms. Jackson Lee. Mr. Chairman, Mr. Chairman, let me yield 
back to you. And just say on the public record, there lies the 
basis of having more security briefings because Mr. Potenza has 
now just opened up another can of worms, and obviously we need 
to pursue that in a secured briefing.
    But I would officially like to mention on the record that 
we would like a response. I think it was out of the Committee, 
either unanimous or bipartisan, on the Wexler resolution, and I 
would appreciate some reference from the Committee going 
forward to the Department of Justice. I thank you very much and 
yield back.
    Mr. Lungren. I thank the gentlelady for yielding. I just--
before I recognize my friend from Massachusetts, just mention 
to the gentleman, Mr. Fein, that I recall the words of Whizzer 
White, when he was dealing with this issue, and from a fourth 
amendment analysis, and he suggested that the President does 
have some primacy in this area, and suggested that that had 
been recognized since the beginning of the Republic and 
suggested that the President ought to maintain hands-on in any 
such foreign surveillance activity and that he have his 
Attorney General involved in a hands-on capacity.
    So, I mean, there has been recognition of a certain unique 
status that the President of the United States has with looking 
at foreign intelligence. And what I am trying to find out is, 
how we in the Congress appropriately exercise our jurisdiction, 
and it seems to me that the power of the purse is essentially 
where our power lies, and that, therefore, it's a matter of 
proper information given to the Congress. Maybe that gets us 
out of this issue of how we can foreclose activity to the 
President given to him by the Constitution with statute. The 
gentleman from Massachusetts is recognized.
    Mr. Fein. If I could just respond to your general 
observation. Justice White was certainly correct, and no one 
has disputed that in the absence of any congressional action, 
the President has inherent authority to gather foreign 
intelligence. The issue is does Congress have any authority to 
regulate, not to limit that. And it's important to remember 
that FISA governs maybe a fraction of a percent of all the 
foreign intelligence that the President gathers outside of FISA 
because it's abroad. The NSA, in your last hearing, testified 
to that extent. So we are asking whether the Congress can 
regulate, not eliminate, the small slice of the President's 
authority to gather foreign intelligence, and surely the 
necessary and proper clause covers that if it covers anything.
    Just think of the implication, Mr. Chairman, if Congress 
lacks any authority to regulate this tiny ability of the 
President to conduct foreign intelligence, then what authority 
does it have over anything that applies to the President 
whether it relates to law enforcement or otherwise setting 
priorities. If you say it's an executive power, the Congress 
has nothing to do with it, then that really means we have one 
branch of Government.
    Mr. Lungren. The executive power is very limited to certain 
circumstances, and that is recognized from the beginning of 
this Republic of the gathering of foreign intelligence. Now, I 
think we could argue about whether or not that should be 
limited to areas of conflict as opposed to trade policy, and I 
would certainly look at that. But it just seems to me, you do 
have a Commander in Chief, you do have a recognition of sort of 
singular decision making. I mean, I recall that Benjamin 
Franklin even recognized that one of the reasons he wanted to 
restrict some information to a Committee of Congress is that 
Congress couldn't keep secrets, but that was then and we know 
things have changed since then. Gentleman from Massachusetts.
    Mr. Delahunt. Yeah. You know, I think, Mr. Fein--I want to 
just comment on Mr. Fein's answer because I think he's correct. 
There's a balance here, and I would suggest, Mr. Chairman, that 
the balance is tipped toward the executive to such an order of 
magnitude that it puts the constitutional order at risk. This 
debate, or this discourse that we're having here now, is truly 
about the role of judicial intervention, to serve as a check 
and balance, and what we see is arguments coming from the 
executive, you know, to sum it up, just trust us, we have all 
these controls, and I am confident that these men and women 
that sit here are complying with that.
    Mr. Scott. Would the gentleman yield?
    Mr. Delahunt. Of course.
    Mr. Scott. Gentleman suggested there's a balance. There's 
no balance at all when all you're asking the President to do is 
get a warrant. It's not a question of whether he listens in, 
it's a question of just whether he just goes through the 
routine of an ex parte proceeding where the other side has no 
ability to gather evidence, and you are--you just certify to a 
court in getting a warrant. I mean, you're not validating, 
you're not questioning whether he can listen. The question is 
whether you have the traditional checks and balances.
    Mr. Delahunt. That was, that was my observation about the 
role of the judiciary. And judicial intervention, and it 
concerns me to hear--and I know that, you know, these decisions 
are made at a different--at a different rate and that policy is 
established far beyond these men that are representing the 
Government here. But I concur with Mr. Fein and others that 
express a profound unease about what is happening. And what I 
further want to suggest is, that I am, that I am very disturbed 
and disappointed in the consultative process that has not 
existed between the Executive and this Committee specifically 
over the course of the past 6 years. This is not good 
legislating, doing this on the fly. We're winging it here 
today, going into this hearing tomorrow, and it does not serve 
the American people well.
    Mr. Lungren. Would the gentleman yield for just a moment?
    Mr. Delahunt. Of course.
    Mr. Lungren. That's why we talk about checks and balances. 
I understand what you're saying. It seems to me in this area, 
the checks and balance ought to be between the Executive and 
the legislative branch more than the judicial branch, and the 
reason I say that is when you're talking about matters of war, 
when you're talking about matters of defending yourself against 
a foreign enemy, it seems to me the Constitution would suggest 
that the two branches that ought to be--would have the prime 
responsibility in that would be the legislative and the 
Executive rather than the judicial.
    In that case, I would suggest that it's a question of us 
making sure that we get the proper information so that we can 
act with the power of the purse and that may require us to make 
some changes with how we operate our Intelligence Committees in 
the manner in which they are able to work with the other 
Committees of the Congress.
    Mr. Delahunt. I hear the Chair's concern, and I don't 
disagree, but there's another half to this. And this is the 
right of privacy and the fundamental civil liberties of all 
individual Americans. That's why we go to war.
    Ms. Martin. Mr. Chairman. Mr. Chairman, it if I might----
    Mr. Lungren. Let me just say, just remind the gentleman 
that we're going to break at 6. If he wants to direct any 
questions to our panelists because we promised----
    Mr. Delahunt. Ms. Martin, you go ahead and say what you 
want to say.
    Ms. Martin. I would just like to point out that the 
executive branch asked the Congress to establish the foreign 
intelligence surveillance court in order to facilitate the 
gathering of foreign intelligence in a way that advanced both 
its national security interests and the civil liberties, and 
that that was fundamentally what was envisioned by the 
Congress, and that this conversation about somehow, the Wilson 
bill and its allowance of warrantless surveillance would have 
been helpful before 9/11 seems to me off point.
    What the Wilson bill is not about is says no warrants. We 
all agree that terrorists should be surveilled and we all agree 
that they can surveil foreigners overseas without any court 
order. The question is, should they be able to surveil 
individuals inside the United States without a warrant? And 
they have given you no argument----
    Mr. Delahunt. Reclaiming my time, and the Chair knows, 
there's been 20,000 applications under FISA, and there is--I 
think in single digits, the number that have been rejected. 
With all due respect to the professionals and the career 
people, you know, maybe there is inconvenience. Maybe there is 
some burdens involved because of circumstances, but at the same 
time, I have to tell you, I have not heard of sufficient 
burdens that would lead me to support anything but the existing 
statute. If there are issues and if there are concerns, let's 
do it right. Let's do it in a way that's thoughtful.
    You know--and again, this is not directed at the career 
professionals. Everybody in this panel knows that this thing's 
going and it's going tomorrow, because we have a mid-term 
election up and the theme is, you know, national security 
because the majority party feels that's their strength. I would 
argue that it's--it is not good legislating. It's not good 
policy making because this is so important. Let me just end 
with one final question that has been given to me. Why does the 
Department of Justice and NSA feel that 102(a) needs amendment?
    Mr. Eisenberg. Well, I mean I think in part it needs to be 
amended because the current 102(a) basically has--as I 
understand it, and Mr. Potenza can correct me, has almost no 
    Mr. Potenza. I'm not--I'm not sure, Congressman. We could--
we could get back to you with a specific answer on that rather 
than try to----
    Mr. Lungren. He was just----
    Mr. Delahunt. I just want to--I'm ready to stay here until 
10 tonight.
    Mr. Lungren. Well, the wincing hour having arrived, we 
promised we would be finished by 6. I thank everyone for their 
attendance. I thank the witnesses for their testimony. The 
Subcommittee very much appreciates your contribution. In order 
to ensure a full record and adequate consideration of this 
issue, the record will be open for additional submissions for 7 
days. Any written questions that a Member wants to submit 
should be submitted within that same 7-day period. This 
concludes the legislative hearing on H.R. 5852, the Electronic 
Surveillance Modernization Act. Thank you for your cooperation. 
And without objection, Subcommittee stands adjourned.
    [Whereupon, at 6:01 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman. I appreciate your holding this additional 
hearing on this important issue affecting our traditional notions of 
rights, liberties and protections from government intrusion into our 
private affairs in a context of secret surveillance without the benefit 
of court approval, or review. One of the reason I felt we needed to 
hear more about the impact of the pending legislation is because I feel 
we are in the dark about what the legislation affects. Let me be clear, 
the primary problem confronting the Congress, in my view, is the issue 
of whether we are performing our constitutional oversight 
responsibilities when we do not hold the Administration accountable to 
following the process we set up for conducting surveillance involving 
American citizens in America.
    If there is some difficulty with the procedures, I expect the 
President to bring those to our attention and work with us in our 
attempt to address them, just as he has done with the USA PATRIOT bill 
and the 25 amendments to FISA we have passed since the 9/11 terrorist 
attacks. I do not expect the President to ignore the laws we passed 
because he considers them inconvenient, or to set up his own secret 
process around th laws that he only reveals when he is caught, 
declaring that he is following his own set of laws and procedures he 
wrote pursuant to powers he declares himself to have under the 
Constitution. I find it insulting and disingenuous to our system of 
laws and procedures for someone to suggest it is inconvenient for the 
President to comply with them by obtaining a warrant or a court order. 
If he is doing what he has chosen to indicate he is doing--surveilling 
only Al Qaeada members and those they are in contact with here, I am 
confident the FISA court would approve a warrant for that. 
Consequently, I am left to wonder whether the real reason the 
Administration does not submit the matter to the FISA court is because 
of concerns that the available information would not justify a warrant. 
The problem is we don't know and I believe our oversight responsibility 
requires us to know and assure the American people that the President's 
surveillance activities are within the rule of law.
    And if the rationale of the legislation is that we are amending 
FISA with the hope that the President will then find it enough to his 
liking to use it sometimes, when he doesn't chose to keep his actions 
in complete secrecy, I am not clear on the need or the desirability of 
such legislation. In other words, if this legislation does not control 
the parts of TSP affecting American citizens in America, what is the 
point of it? I think our Founding Fathers would be shocked to learn 
that they had created an unbridled power in the President to secretly 
conduct surveillance involving Americans in America without approval of 
the courts and I do not believe the courts will find that they did. So 
I certainly do not want to see legislation that would purport to 
establish or recognize such a power in the President, as I fear the 
bill before us does.
    And even if I were sure this legislation required the President to 
conduct domestic surveillance pursuant to it, I would be concerned 
about the broad loopholes it creates in taking currently covered 
surveillance activities outside of FISA through redefining what 
constitutes ``electronic surveillance.'' I would also be concerned with 
what we mean by provisions in the bill such as what constitutes and 
``armed attack'' against us triggering the warrantless 60-day window? 
Was the attack on the American Embassy in Syria this morning an armed 
attack that would invoke a 60-day warrantless period in this country?
    I would also want to know what is meant by ``terrorist attack'' in 
the bill which invokes potentially endlessly renewed 45-day warrantless 
periods. Does it include attempts or conspiracies to launch a terrorist 
attack? If not, why not? Was the recent plot discovered in Great 
Britain to blow up planes headed for America such a terrorist Attack?
    These are just a few of the problems I have with the bill in the 
context under which we are considering it. So, I look forward to the 
testimony of our witnesses, Mr. Chairman, with th hope they will be 
able to enlighten us on these and other issues and concerns with the 
legislation. Thank you.


Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Let me state at the outset that I strongly support intercepting 
each and every conversation involving al-Qaeda and its supporters--
whether in the United States or abroad. Having said that, I have 
serious concerns about this Committee taking up legislation that simply 
codifies an unlawful surveillance program and which further and 
unjustifiably expands the President's authority. My concerns include 
the following:
    First, it has yet to be explained why we need to gut the Foreign 
Intelligence Surveillance Act (FISA) and the Fourth Amendment in order 
to protect our citizens. The current law already allows for streamlined 
court approved wiretaps and includes an emergency exception which 
allows wiretapping without a court order for up to 72 hours. If the 
Attorney General needs more resources, additional time, or the ability 
to delegate this responsibility to other trusted officials, I am sure 
the Members of this Committee could come together to do that. However, 
there appears to be no cause to revamp FISA on the fly and permit the 
wholesale interception, storage, and unlimited usage of the contents of 
the communications of innocent Americans without a warrant.
    Second, this Committee continues to be handicapped by the fact that 
nearly nine months after we first learned of the warrantless 
surveillance program, there has been no attempt to conduct an 
independent inquiry into its legality. Not only has Congress failed to 
conduct any sort of investigation, but the Administration summarily 
rejected all requests for special counsels as well as reviews by the 
Department of Justice and Department of Defense Inspector Generals. 
When the DOJ Office of Professional Responsibility finally opened an 
investigation, the President himself squashed it by denying the 
investigators security clearances. Furthermore, the DOJ has completely 
ignored the numerous questions posed by this committee, the Wexler 
Resolution of Inquiry we previously adopted, as well as our request for 
a full classified briefing on the program.
    Third, we have not received a shred of evidence that the domestic 
spying program has led to actionable intelligence involving terrorism. 
FBI Director Mueller has stated that the warrantless surveillance 
program had not identified a single Al Qaeda representative in the 
United States since the September 11 attacks. A former prosecutor 
stated that ``[t]he information [from the program] was so thin, and the 
connections were so remote, that they never led to anything, and I 
never heard any follow-up.'' An FBI official said the leads were 
``unproductive, prompting agents to joke that a new bunch of tips meant 
more calls to Pizza Hut.''
    So, given that emergency wiretaps are permitted under FISA, there 
has yet to be an independent review of the facts surrounding the 
domestic spying program, and the program has not yielded meaningful 
intelligence, how is it possible that this Committee and this Congress 
appear to be on the verge of ratifying and enlarging an unlawful 
program two weeks before we adjourn? The GOP Leadership told The New 
York Times last week--they want to spend the next few weeks 
``concentrat[ing] on national security issues they believe play to 
their political strength.'' In other words, its politics, plain and 
    If Congress were really serious about fighting terrorism, we would 
fully implement the 9/11 Commission recommendations. If we were truly 
interested in airline security, we would have developed a system to 
identify liquid explosives and to screen and inspect commercial air 
cargo. If we really cared about port security, we would screen more 
than 3% of containers before they enter our country, and secure our 
chemical plants. If we really cared about nuclear proliferation, we 
would work with the members of the former Soviet Union to adequately 
secure their ``loose nukes.'' If we were serious about capturing or 
killing bin Laden, we wouldn't have outsourced the job to Afghanistan 
or broken up the CIA's bin Laden unit. And if we truly wanted to 
prevent terrorism, instead of spending $2 billion per week occupying 
Iraq, we would use those funds to protect our Nation and secure our 
    I believe that the lesson of the last five years is that if we 
allow intelligence, military and law enforcement to do their work free 
of political interference, if we give them requisite resources and 
modern technologies, if we allow them to ``connect the dots'' in a 
straight forward and non-partisan manner, we can protect our citizens. 
We all want to fight terrorism, but we need to fight it the right way, 
consistent with our Constitution, and in a manner that serves as a 
model for the rest of the world. This bill does not meet that test.