black, and we do too much of that here rather than working together, and so i realize there's a lot of people watching this hearing who go, well, they got a lot of nerve, but that aside, it is -- you have a choice as a leader. you can either lead making the other guy look bad, and, therefore, you look bedder, or lead by giving the other guy credit and communicating and then everyone does better. i think what you had is the former and not the latter. i think you've got -- i know you know you've got a ways to go. ..

if you would allow me, i am confused. you know, we began looking at these and it appears to me -- are you paying brokerage or the department of energy for these fellows? >> it is the armed department of energy so our funding goes through the department of energy. >> are they making money off of this? >> oris? there's an 18% overhead. our annual payment to doe to oris for fy 13 is overhead. >> so why don't you say directly the 18%?

>> i'm not sure this is a program that is started back in the 40's. the dod is the largest recipient to advance the scientific enterprise. we use them with great results. we use them for projects and research in the niche requirements in the laboratory. >> why don't we just hired a really good archaeologists and scientists? why are we paying an 18% overhead to another department of government? >> a. darden from the standpoint in the sense they don't receive a salary from us. >> who are they receiving a salary from? >> on average they pay about $80,000. >> but who is paying that, is it the department of defense? >> i believe it is oris. we just transfer the funding. >> you mean the department of energy. the tax payers are paying them. okay. we are going to take a close look at this.

since 1940 there's an assumption you're getting a bargain. i don't like the idea that one department of governor is paying another department of government and 18% hit on locating and hiring people who are doing work for the government. i need to see a cost-benefit analysis as to why we are getting value on that 18%. they are not working at the department of energy, right? they are working full time in hawaii, right? >> yes, ma'am to the estimate how many of the fellows have been extended past the five-year deadline? stickney i take that for the record? i have currently 41 right now. and it provides a great recruiting and retention opportunity for us as well because in addition to the fact that we don't have it in the long term, we can't evaluate whether or not they would perform admirably as a full-time forensic enter colleges or archaeologist.till

significantly less than what we would be paying them as a civil servant. >> okay. that is live on to get to the bottom of. you understand -- well, what is this? because i know that there is supposed to have been graduating within five years and 20 years and then there was all kind of issues about, you know, is this a way you can get people hired that you know as opposed to getting the best and brightest in this program. so i would appreciate those questions for the record. sorry, senator ayotte. >> on implementing the gao's findings, i know dr. miller is looking at this issue. have you briefed the secretary on this issue as well? because i do believe that this is an issue that needs an alert from the top to make sure that

we are driving this and we are not ending up in the same position. i don't know if you've had an opportunity, general, to brief the secretary on this. >> senator, i have weekly conversations with dr. miller but i would have to take for the record any conversation he may have had with the secretary. >> we will direct this up to the secretary level and obviously talked to dr. miller as well because i do believe this has to come from the top to make sure that we you resolve these issues. and, you know, i know that senator mccaskill had asked you, general, about the internal dr. cole report. one of the things that troubled me about it, i understand there was a lot of internal dispute about the validity and why some of the criticisms were in net and didn't people have other

motivations. but your predecessor, major general tom, his response to that report was telling to me. it really stuck out for me because he sent that memo saying it was here by disavowed and rejected in its entirety. but i don't find any merit in any of the conclusions or recommendations in that there would be no further copying or sharing of the report and concluded by saying the command will not consider any allegations from findings or recommendations from the report. and i believe that senator mccaskill had asked you about the report itself. do you agree with that that there is nothing valid in that report that we can take some lessons from putting aside the motivation of it? >> madam chairman, if i could clarify, the oris program was

1992. i was adding 50 years to that. but by all means, we will get you the information you require. to one of your questions, i believe that we have implemented recommendations, dr. call's report, 3i would like to highlight the i think are bearing fruit for us on the fact reestablished an investigation decision board to review the field investigations that come forward to review research for would come forward as to whether or not it should qualify for the field investigation. we also reorganize the command, and now we have most of our -- not most of all of our deploying personnel under one decision. they work investigations and recovery for the actual field mission. the last thing i think that was a positive from dr. cole's report is that we implemented outing is high and is either a forensic intermodal just order archaeologist to every team that

went out to look at the site and map the site. in addition we assigned a military leader to help with logistics. so those are three examples of things we have already implemented that were recommended within dr. cole's report. >> that was a fairly defensive response saying we are not going to consider anything so i do appreciate that you have looked at with the high of how we can improve. the one issue that was raised that stuck out with me as well is this idea of military tourism. one of the examples in the report identified -- i have no doubt that in order to recover the remains from world war ii you have to travel to italy and any other places in europe. but one had the highlight incident in which the team spent five nights and a luxury hotel, superior hotel in rome at $100 a

night. when it was combined with a per diem, it cost more than $18,000 for the taxpayers. so have you looked at that piece of it, too, as far as how the taxpayers' dollars are being used with the necessary travel that i do not dispute that the need to take in order to effectively recover the remains? >> i cannot speak to these incidents. i can tell you as part of dr. miller's review of the internal report the dod inspector general will be looking at all allegations of fraud, waste and abuse in the report. towards today if i could fast-forward we have strict controls in place by preventing that from happening. our operational planning function is led by the director of operations, a neutral party. they encounter the endeavor to have at least two operational

planning teams that are made of the representatives throughout the command to develop the commission said and there is then a decision briefed that goes in front of my deputy to look at country coordination and fiscal responsibility, to look at all issues regarding the permitting and then finally comes to me for a confirmation briefing. so i believe today we have multiple levels of control, whereby other aspects within jpac or in the decisionmaking process with or not we are spending taxpayer dollars to advance the mission whether it be an investigative one or recovery. >> is this process something you've been to place since you came in to command? >> a was by my predecessor and i just increased as we have gone along. it's a constant re-evaluation and a self assessment. we have after action report after the teams come back we determine what did we miss on the operational planning function and we then adjust on the continuing process.

>> i hope that you will review the examples, the one i just identify and others to do in after action report to make sure the taxpayer dollars were being used responsibly so that any corrections can be made, but those types of things don't happen again. and i wanted to also ask with regard to resources in for what you have received with regards to jpac and as i have seen at, certainly you've seen some pretty significant increases. in fact, let's put aside obviously where we are now with sequestration, but if you look from 2008 to 2012 it's been about a 26% increase. for jpac to 20 talbots the 90% increase and i think that reflects the commitment that congress has of wanting to make sure that there are adequate

resources for the recovery efforts here. but then if i look at the numbers of those remains that are recovered, there isn't a reflection of the increase in resource as i look in the number of remains recovered between 2008 and 2012, it ranges from 62, 71, 74, 94 and 82. but there really doesn't seem to be the consistent increase in in that peace with the increase in the resources. so i think this resource issue of what you need for the resources i know that my time is up and the chair is grant asked about this but i would like to get your perspective on what the additional resources be invested in this and how come we haven't already seen is that a result of some of the issues identified on the gao report and what are we going to need going forward i know that is a broad question and the chair will have a number e get ations in this area but iw

these fiscal issues. >> the baseline budget in 2012 when the resources mattered it was 71 million. today it is 89 million. there was additional growth built in through the appropriation from congress as endorsed by the department where over a five-year plan, we were going to be heading to under 53 personnel as well as 314 million additional dollars to our program. that is a speed bump because of the fiscal environment that we face but we are confident with the balance between smaller resources as well as what we need to do and how we need to optimize our efficiencies and effectiveness that we will be able to to do so. semidey essentially you haven't seen an increase in the resources? >> madam chairman, he alluded ee

they go off the average forensic anthropologist needs anywhere from nine to 12 months before they can go on the field mission. so there is a lead time for that and for the research and analysis. there is a lead time for the recovery and then obviously once the rains come into the laboratory it can range anywhere from several weeks to in some cases years or decades. last month we just identified a set of remains returned to us in the early 90's from north korea. >> let me ask you this, do you feel confident that you are going to be able to identify significantly more remains in the coming two or three years? will you get about 100, will you

get to 200? do you believe you can do that? >> a realistic goal would be 10% per year increase. if we were to do that we could be at 110 on dedications within five years. i believe that is a realistic goal and we would have the resources in the environment by which to achieve that. >> madame chair, in order to make a dedication, the numerous members of the committee will have to contribute to that effort. we have made several strides that will allow us to increase our effectiveness and efficiency to identify more individuals. for example, the identification laboratory has increased their technology where they need a smaller portions of remains to make a dna match. when we talk about our officers,

they have made improvements on how we look for the family members to get the family reference samples. in our organization you mentioned an increase. in 2010, we formerly were given the increase where it began and that's where we added some personnel. again we will be seeing the benefits from that very soon but it's impossible to put an exact time line on that. so i think there are a lot of things moving in the right direction to ensure we are working towards our goal as efficiently and effectively as we possibly can. >> i think you'll understand in this environment where if congress doesn't start seeing an increasing number of remains identified with the money will go away. it just is too hard to find the resources for what we need to be

giving in the federal government that we would substantially increase resources for a given problem that doesn't result in more productivity. let's talk about the reasonableness of the numbers and how honest and open we are being. this is difficult because no one wants to give up on anyone. and we feel very strongly about that as a nation. i know the current number of 83,000 my understanding is 80% of that, 73,000 as world war ii. it's my understanding preparing from this hearing that you all have estimated that as many as 58,000 may not be recovered with current technologies and 40,000 were oer deep water, of

that over 40,000 were lost over deepwater and will never be recovered. do you believe i stated that those numbers in an honest and forthright way? >> madam chairman, similar groups have attempted to determine exactly how many are going to be reasonably covered. what is important to note is we have a requirement from congress to create a case filed on each of the missing from world war ii. we've been working on that and we have about 20,000 at this point. once we have a case file on each individual, we will be allowed to make it a good assessment on exactly how many of those would be recoverable if you will. so the analysis would be done and we would be able to give you

an accurate figure in the near future. >> weather 40,000 lost over deepwater? >> to the best of my knowledge that is correct. >> do we know who the 40,000 or? >> we do have names. we have a list of everyone that was missing from world war ii. >> do we know which of those individuals were lost over deepwater? >> we do indeed. >> and do you believe honest and forthright with the families about the chance of recovering those remains the 40,000 over deepwater? >> we haven't released specific names. that is one of the recommendations is to create the case file. it's be able to cover those remains. >> why do you think that we have been reluctant as it appears that we have been to be reasonable and honest for the families.

senate if we know their names and we know it was over deep water and we know they are not recoverable, why wouldn't we rush to be honest and forthright with these families. >> as i start researching it but i was told was a lot of families feel they are holding out hope. if the ship went down, you know, the families would believe it was physically on the ship >> there is no way we will find your loved one or be able to bring the remains back home. i would tell you that -- >> that just seems cruel to me. i don't think the p.o.w. community is unwilling to

receive the factual information that you have to the best of your ability. at some point in time is it more cruel to be honest and forthright that the chances of recovering half of the number that you'll have been tasked with is somewhere close to none from slim? >> i disagree that you are doing these families in favor buy not being honest and forthright. >> we have to do is velte the information the was provided by the registration service. once we make that validation, we are certainly more than willing to provide information to the families. what we don't want to do is to say there is hope and then

return a year or two later and say no there is no hope. so what we want to do is be accurate in our assessment and that is what we are going to do. that is one of my main objectives is to do what you just described once we do the analysis and we've collected -- >> you're going to wait until you do all of them to tell the families? gannet absolutely not. as we start working the case files we will be in the position to be able to give families information about their loved ones. >> and when will that began? >> we've already started the process of accumulating the information. the charter that was given to us by congress was to collect all of the information we have from those missing in world war ii. the baseline, and we are looking all of the files from those that were lost and bringing all of that information together -- as we do an assessment of that we will start providing the information to families. >> senator mccain and i have discussed this and i'm going to meet with him when we returns of timber to talk abo

but i feel a sense of urgency about getting accurate information to these families as quickly as possible. and i have a feeling that sometimes the bureaucratic need to finish a task combined with pressure from congress has inadvertently put way too many families in a cruel limbo when we could fix that in short order. i am going to try to help with that to do what i can. you have a lot of work to do that needs to be done. and if we know that there is work that is impossible to do, the sooner we deal with that, the better. ischemic madam chairman, we do just that for the conflict in the vietnam war. we categorized them and are in

the process for the curry in war. it's just again as i mentioned earlier its 2010 that formerly had of world war ii. we are behind most mature of the efforts in vietnam this is where it all started. >> senator ayotte? >> so, right now. >> how do you get information on someone they've lost? to you contact them, how does that happen? >> there is a procedure in the kind of community effort in the entire process. the communication is done by the couch related officers. we would pass the information to the presentation to the families of the of questions, if the families of questions, information would be passed to the officers and as we do the research and back and forth is

the way that works. >> i would agree with senator mccaskill. i think the family should get whatever information you have. when you talk about world war ii veterans i know it was just added to your statutory duties in 2010 some of them obviously if you think about family members, the spouse's, getting the point where we are losing so many and i am sure that the urgency of providing the information to the families is becoming even greater so that they can now and obviously know what ever we know. >> i'm blessed because my grandfather is a world war ii veteran so many of them are not

going to be with us and sure they are widows as well. there is an urgency in mind and what ever you know they should know. i also wanted to follow-up on this issue. you clarify and set originally as a result of the 2010. one is from jpac and now to settle on the plan and you are on the same page as i understand it we haven't received anything to my knowledge of we? >> ultimately we were going to get the report. >> as an entity in integrated fully funded program, and the jpac plan and the plan that was being forwarded didn't include all of those elements.

>> we have created a plan. it is our capability plan. once the corydon mission is complete then we will be able to release it. >> when will we receive it? >> i can't put a time limit on how long it takes to get through the coordination. >> i don't know the coordination >> every time we produce a product has to go to record a nation of different services and staff. that is pretty much accurate. >> we need answers, and we need leadership on the sand here is the opportunity. and i see both of you

you've been there for about ten months a year. this is your opportunity. you have got great challenges, and we want to see it and we want to see it soon. so we are going to be following up on this with dr. miller and the secretary because it isn't clear to me. it was the congress that asking for the report so that we could get this right finally. so that's where our frustration comes from as you could imagine. >> it's important to note the agreement is that we witnessed the plan that was accepted and funded to the coordinated plan and we did exactly that and i think they would agree that if we didn't lose any elements of his plan. >> i wanted to follow-up while

you were here just to ask you about the surgeon to. as you know he was captured by the taliban in june of 2009. it's obviously for his family a very difficult and troubling and horrible situation. just wanted to see where things were. i know it's very challenging. senator, they have the department of defense highest priority and we are working diligently. what we are working on for the last year is to ensure there is a whole of government approach to kind of bring -- >> with the dod and i understand. >> yes, ma'am, that's happening now. >> the effort is there and the focus is there and we have the right people working to try to find information and to bring him to his mother and father.

>> i just wanted to raise it at today's hearing so people would understand he is very much on our mind and from the highest levels of government. thank you. >> i think the most important thing to remember is when you go back to your jobs and you have one of those moments where something is supposed to go through a process and the term coordination which really means lost in a deep black hole in the pentagon, when you are having those days that have gone somewhere for someone else i just want you to hear my voice ringing in your head. get it done. we are not going to be patient about this. this has been a problem for 20 years. we want the planning and the reorganization of the effort so that there's not so many cooks in the kitchen that are in charge, but there is one shaft

that we can blame. if the numbers aren't there -- and by the way, it's going to help you get the resources you need and when you speak with one unified voice, it makes your job so much easier because our voices will be together. >> it's going to be ridiculously hard because it's like a dog with a bone on this stuff so you have to get rid of this room -- get used to this room because you are going to be that back a lot if we don't get dates and plans and we don't get something that looks like a professor test on organizational ability how you do not do that. this would be a business class, this would be a case study how you make sure you don't get results on accountability. and then briefly before we close here i want to just ask about the loud in nebraska. what purpose is the lab is

serving and how much does it cost? >> we've just opened the laboratory and offered air force base in nebraska in june of this year. it provides us the additional capacity and capability that was identified within the congressional mandate. it cost us a little over 5.2 million. we ended up revitalizing and reusing the existing facility on the base and that laboratory is up and running as of june 1st. >> are they performing the identification? >> they have their first case in vietnam. it is a case of ten and dissenter mines from the cemetery in your home state and they are working on that case right now. >> that's terrific and i wanted to make sure they were up and running and i actually will tell you we are living on a positive note $5.2 million sounds like a reasonable number in this grand scheme of numbers that i look at constantly at the department of

defense. >> there's a renovation of the facility in the gannet provides a state of the art facility. a caveat because of a hiring freeze we only have 14 of the 49 laboratory personnel in the building but we are working with the pacific command and the dod on that high hearing initio. >> any other questions? >> i may have some questions for the record. but as the chair said we will meet again. thank you for being here. i know you are trying. our job is to do oversight and hold your feet to the fire. our job is to make you accountable and we are going to do that. i understand you do have a secret mission and you are dedicated public servants and we do not diminish that in any way, but we want to get this fixed so that our successors years from

now aren't saying why were they so lame they couldn't get it done when the tribeca and 2013. thank you. >> i think you have a great leadership opportunities here as well and your service records will bring -- we thank you for your distinguished service records to be the right leader needed at the right time to get this right for the american people. thank you.

>> 21 embassies and consulates in muslim countries will be closed this weekend and the state department issued a worldwide travel alert saying terrorists may elect to use a variety of means and weapons and target both official and private interest. u.s. citizens are reminded of the potential for terrorist attack public transportation system and other tourist infrastructure is. the state department recommends that u.s. citizens traveling abroad monitor their website for the latest information. also today in washington, the national park service testified about their firearms management program. the house natural resources and oversight subcommittee told a joint hearing to talk about the concerns of the inspector general. here is a look. >> you gave a nice spin but you didn't answer his question who is ultimately responsible, not what have you done but who is ultimately responsible? >> i am the director of the park service. >> so you are ultimately respsible. at cha

does she have in this reaction? >> she is the supervisor and is also responsible. >> there was a 2003 report to was given. 133 were missing and ended up in a pawnshop. a 2008 report showed problems, 2009 report showed problems. all of you were on the job then. what specifically did you do to implement the findings of the 2009 report? >> i was unaware of the report. >> but it came under your watch petraeus too i wasn't the director. what did you do about it? even if it came after the year you took office, what should you have done about it? >> i shall hold my line supervisors accountable to follow -- >> just the line supervisors? you are throwing everyone in your department under the bus. how much accountability should you have? that was the question to the of

how much accountability should you hold? >> for accountability. >> have you taken full accountability? >> yes i have. >> what is your action? >> the most immediate has been to elevate the position of the firearms manager. and at what about your response to devotee? >> so i have a direct line of communication. >> so you are blaming other people. i'm going to yield back to the gentleman from michigan. >> you can watch the entire hearing from the national park service at 8 p.m. eastern here that's going to be on our companion network c-span three. the obama administration released a document about the national and the justice department testified about the administration's use of the foreign intelligence surveillance act to gather information on u.s. citizens. from the senate judiciary committee, this is just under two and a half hours.

>> good morning. today the judiciary committee will scrutinize government surveillance programs connected on the foreign intelligence actor for fisa. congress has repeatedly expanded the scope of fisa and has given the power to collect information on the law-abiding americans. we must carefully consider whether they have gone too far. last month, they learned for the first time that one of these authorities, section 215 of the u.s. a patriot act has been

secretly interpreted to authorize unprecedented on scale. information was also leaked about the section 702 on fisa which authorizes the nsa to collect the communications of the forerunners -- foreigners overseas. i am concerned about the potential damage capabilities and national security. it's appropriate to hold people accountable for holding such a massive leak to occur. we need to examine how to prevent this kind of breach in the future. in the week the president said this is an opportunity to have an open and a thoughtful debate about these issues and i offer that statement because this is a debate several of us have been

trying to have for years. i will get the classified briefings but then you can't talk about them so what of the things that could be and should be discussed and where we are going to have the the date the president called for the executive branch has to be a full partner we need straightforward answers. i am concerned we are not getting them. recently the director of technology provided false testimony about the surveillance program during the senate hearing in march. his office had to remove a fact sheet for the web site after concerns were raised about its accuracy and i appreciate it's difficult to talk about classified public's in a public setting the the american people deserve honest answers. it's been difficult to get a strong answer about the effectiveness of the rickards program. whether the program is critical to national security is a question to congress as we consider possible changes in

law. some supporters of the program have repeatedly complained that the efficacy of the section of the medved data collection program. with section 702i see it entirely differently. i don't think that is coincidence when we have people in government make that comparison, but it needs to stop. i think the patients, the american people are beginning to wear down fin but what has to be of more concern is the democracy be a cost to the american people i asked general alexander, and i know he can't be here today because he's at a convention in las vegas. i asked general alexander about the effectiveness of the section 2154 and records program in the appropriations meeting last month he agreed to provide a classified list of terrorist events that section 215 and i

reviewed that last. although i agree to the content collections and punt on section 702 it does not do the same for section 215. or it simply does not have dozens or even several terrorist plots for section 215 kalona 54 as some are suggesting and these facts matter. the small collection program as massive privacy. i said repeatedly just because we haven't been doing the huge amounts of data doesn't mean that we should be doing so. they report the collection of the medved data was shut down because it failed to produce meaningful intelligence. we need to take an equally close look at the phone records program. this program is not effective

and it has to end. so far i'm not convinced by what might seem to but i'm sure we will hear from witnesses today to see the programs are critical. helping to identify and connect the so-called botts. there's always going to be dots to collect and connect. the government is already collecting data on millions of innocent americans on a daily basis. based on the secret legal interpretation it doesn't appear to authorize this kind of collection. so what's going to be next? when is enough enough? i think the congress has to carefully consider the powerful surveillance tools to be granted to the government and we have to ensure there is stringent oversight accountability and transparency. they shouldn't be limited to the surveillance programs about which information was leaked. that's why i've introduced a bill that addresses not only section 215 but section 702 and also the national security

letters in the wiretaps and other authorities on the patriot act. it's the case of the protection of americans privacy it isn't a piracy issue. i think senator early of utah and others for their support of my fisa bill and i hope other senators will join the effort for the testimony on the government witnesses and grateful for the pri dissipation of judge par current member of the judiciary and former judge of the fisa court. i hope this will give an opportunity for an open debate about ball and the policy on the court and the letters to this position. i yield to senator grassley and then we will call on the first panel of james cole. we will put the statement in the

record. it didn't arrive in time to be given so the statement will be made it part of the record and he will answer questions. senator grassley? >> mr. chairman, thank you for holding this hearing, and i think it's very important that congress do its oversight work which this hearing is part of, but it's even more important the more secret a program is the more oversight the congress has. and as you said, probably more about this program could be told to the public and the more that could be told, may be more understanding and less questioning on the part of the public. the foreign intelligence surveillance act requires the statutory framework for electronic surveillance and in the context of a foreign intelligence gathering investigating threats to the national security gives rise to the tension between the

citizens' privacy rights and the government legitimate national security interest. congress through the legislation has sought and i hope successfully to strike a balance in the sensitive area. but whether it is the right balance of course is one of the reasons we are having this hearing. the reports in the media have raised important questions regarding exactly what information about american citizens is being collected by the government, whether their programs are being conducted as congress intended, and whether there are sufficient safeguards to ensure they cannot be abused by this or any future administration. in short of the of raised questions about whether the proper balance has been struck. we need to look no further than the reason the irs scandal but see is what can happen when an unchecked executive branch

bureaucracy with immense power target's political opponents. these tramples the citizens' rights to fully participate in our space process. this kind of abuse cannot be permitted to occur in our national security agencies as well and maybe even more importantly. oversight by congress will play an important role as we move forward in evaluating the wisdom and value of the intelligence programs. however, congress needs accurate information in order to conduct oversight responsibilities that the constitution demands we do under our checks and balances of government. that is why it was especially disturbing to see that the director of national intelligence was forced to apologize for inaccurate statements that he made last month before the senate intelligence committee today that the statements can serve

one of the important programs that we will be hearing about this very day. nothing can excuse this kind of behavior from a senior administration official of any had administration especially on matters of such grave importance we have a constitutional duty to protect americans privacy. that's a given to the we also have an equal constitutional responsibility to ensure the government provides a strong national defense. that is a given. intelligence gathering is of course necessary and is a vital part of the defense. we have the duty to ensure that the men and women of our military the intelligence and counterterrorism communities have the tools they need to get the job done. i & they contend the programs also authorized fisa that we will discuss today a critical tool that have assisted them sheeran and abroad.

to the extent possible in this unclassified setting i look forward to hearing how these programs have made our nation safer. i want to emphasize this is an equally important part of the balance that we have to strike. and as we consider whether the reform of these intelligence programs as necessary or desirable, we must also make sure that we do not overreact and repeat the mistakes of the past. we know that before 9/11 who there was a wall elected under the clinton administration between intelligence gathering and law enforcement and that contributed to our failure to deal to connect the dots and prevent 9/11. none of the reforms reconsiders should have rebuilt the squall especially weigel the intelligence and law enforcement communities need to share information and in a lawful way anof

shouldn't confuse the differences between these two contexts. for example no reform should be based on the misguided legal pherae that foreign terrorists on foreign soil are entitled to the same constitutional rights that americans expect here at home. finally come increased transparency is a working goal in general and as i suggested before, whatever we can talk about on these programs i think there is less questions out there in the minds of people coming and we have probably created some public relations problems before us and for this program and for our national security committee because maybe we haven't made enough information available. i say that understanding that we can't tell our enemies what tools we use. but if we consider any reform that may bring more transparency to the process, we should keep in mind then that any piece of information we make available to

the public will be read by a determined adversary is coming and that adversary has already demonstrated the capacity to kill thousands of americans even on our own soil. i welcome the panel witnesses and look forward to engaging them as we seek to strike the difficult and the sensitive balance between privacy and security. thank you mr. chairman. >> our first witness will be james cole for joining the department of justice in 1979. he served for 13 years at the criminal division before becoming deputy chief of the public integrity section and private practice he was the deputy attorney general january 3rd. of course mr. kohl is no stranger to this county. please, go ahead sir. >> mr. ranking member, members of the committee for inviting us here today to speak about the to 15 business records program and section 702 let fisa to read with these programs and other

intelligence activities, we are constantly seeking to achieve the right balance between the protection of national security and the protection of privacy and civil liberties. we believe these two programs have achieved the right balance. first of all, both programs are conducted under public statutes passed and later reauthorize by congress. neither is a program that has been hidden away or off the books. in fact all three branches of government played a significant role in the oversight of these programs. the judiciary and the foreign intelligence court plays a role in authorizing. the executive branch has internal reviews to ensure compliance and congress passes balls and oversees the implementation and determines whether or not the current law should be free authorized and then what for to the collection

of me the delete command of data from tunnell on calls these are from calls maintained by the phone companies. they maintain the number to call it was donald trump and the number the call was donald to, the date and time of the call and a phalanx of the call. the records do not include the names or other personal identified information. they do not conclude a third location information coming and they do not include the content of any phone calls. these are the kind of records under longstanding supreme court precedent are not protected by the fourth amendment. it only allows the government to acquire the phone records. it doesn't allow the government to access or to use them. the terms under which the government may access or use the records is covered by another more detailed quarter order that the dni declassified information

released today. the other court order called the primary order provides the government can only search the data if it has reasonable articulate suspicion that the phone number being searched is associated with certain terrorist organizations. the order also imposes restrictions on nsa to ensure that only properly trained analysts may access the data and that they can only access it when the articulate suspicion predicate met and documented. the justification is important so that it can be reviewed by supervisors before the search and audited afterwards to ensure compliance. in the criminal context the government could obtain the same type of record with a grand jury subpoena without going to the court. but here we go to the court every 90 days to seek the court's authorization to collect the records to date in fact, since 2006 the court has authorized the program on 34

separate occasions involving 14 different judges. as part of that renewal process, we informed the court whether if that any compliance problems or the court to get very hard look to make sure that we have collected those problems. as we have explained before, the 11 judges on the fisa court are far from a rubber stamp. instead, they review all of the pleadings thoroughly and question us and they don't approve an order until they are satisfied that we have met all statutory and constitutional requirements. in addition to the judiciary, congress also plays a significant role in this program. the classified details of this program have been extensively briefed to both the judiciary and intelligence committees and their staffs on numerous occasions. if there are any significant issues that arise with the 215 programs, we would report those to the two committees right away to be any significant interpretation by the fisa court would likewise be reported to the committee under the statutory obligations including

opinions of any significant interpretation along with any of the court orders to go with that. in addition the congress plays a role in real rise in the provision under which the government carries of this program and has done so since 2006. section 215 of the patriot act has been renewed several times since the program was initiated in putting most recently for an additional four years in 2011. in connection with of those recent renewals, the government provided a classified briefing paper to the house and the senate intelligence committees to be made available to all members of congress. the briefing paper and a second updated version set up the operation of the programs in detail, explained that the government and the court had interpreted the section 215 authorization to offer, and the collection of telephone met the data and stated that the government was in fact collecting such information. the dni also released those

papers today. we also made offers to brief any member of the 215 program and the availability of the paper and the opportunity for all briefings communicated through the colleagues letters issued by the chair of the end of the joint committee's by all members of congress. we couldn't talk publicly about the program of the time since and was properly classified. the branch to call reasonable available steps to ensure that members of congress were appropriately informed of the programs when they renewed it. they were amending the authority to limit the collection of telephone medved data. as the president has said we welcome a public debate about how best to safeguard both the national security and privacy of our citizens. indeed, we will be considering in the coming days and weeks further steps to declassify information and help facilitate the debate just as we give them this morning and releasing the

primary order and a congressional briefing papers. in the meantime, however, we look forward to working with of the congress to determine a careful and a deliberate way the tools can be structured and secured for the nation and at the same time protect our privacy and civil liberty. >> it is starting now. the of fenestration did classified and of course it doesn't contain any real analysis or discussion is in the 215 relevant standards about would be part of the question but first i want to ask the deputy director a question before we even going to the legality and the usefulness. in the security breach i think we would all agree by edward snowden.

bradley downloaded thousands of documents on wikileaks. somebody would have been held accountable by now. it was a lot of material cut in the private sector trade if they have this kind boeing and most companies, somebody would be held accountable. who is taking response of the for allowing this incredibly damaging security breach to occur? ..

>> we extend special clearances to to a range of people and expect they exercise the trust as the american people intended, and we will make a full accounting of that. >> do -- i remember president reagan made up a statement used about trust, but verify. i mean, don't you have -- you have a certain amount of trust, but don't you have people double checking? >> we do.

>> who double checked mr. snowden. >> checks at multiple levels, checks at what an individual is doing at any moment in time. >> you obviously failed. >> in this case, we can say they failed, but we don't know well. >> you think you failed? over at the airport in russia with millions of items. >> with the benefit of what we know they did fail, but we don't know where they failed, and we may find it was in multiple points of the system in the exercise of individual responsibility and design of the system in the first place. >> anybody offered to resign? >> nobody has. everybody is working hard to understand what happened and put in place certain mechanisming -- >> how soon until we know who screwed up? >> over weeks and months what happened and who should be held accountable, and we will hold them accountable. >> are you taking steps now to make sure such a screwup doesn't happen again?

>> we are, sir. there's a range of mechanisms, not just one, to ensure that we would understand and immediately be able to catch someone who tried to repeat what mr. snowden did, but we have to be creative and thoughtful enough to understand there are many other ways somebody might try to beat the system. >> it -- you can understand why some people use that old expression, lock the door after the horse has been stolen? >> i can, sir. >> thank you. i appreciate your candor. i realize general alexander is in las vegas, but i'll ask you this question. last month, he promised to provide me with specific examples of terrorism cases where the phone records collections have been used, and i'm led to believe there's dozens of cases where they are critical to this discovery and disrumtion in plots reviewed all the classified material the nsa

sent, the documents classified, but the -- well, it was sitting open in testimony that section 215 helped to thwart or prevent 54 terrorist plots, not by any stretch 54 terrorist plots. how many cases of section 215, both phone records collection critical, to preventing a terrorist plot? >> sir, i might answer in open session and offer to provide follow-up details in a classified session. i would say the administration has disclosed that there were 54 plots that were disrupted over the life of these two programs. >> objection 215 is critical to preventing -- >> no, sir. >> 54 plots -- >> of the plots, 13 of those of a homeland nexus, and others had

plots that came to fruition in europe, asia, other places around the world, of the 13 -- >> how many 13 plots to harm americans? >> the 13 with a homeland nexus, 12 of those 215 made a contribution. the question you've asked though is more precise in the sense of, is there a but 4 case to be made, but for 215 the plots would have been disrupted, but that's not how the programs work. what happens is that you essentially have a range of tools at your disposal, one or more of the tools tip you to a plot, and others of the tools might therch give exposure to what the nature of the plot is, and, finally, the exercise of multiple instruments of power to include law enforcement power completes the picture and complete the plot. there is an example amongst the 13 that comes close to a but for example, and -- >> i read that. i've read the material on that.

safe to say that the target 54 but fors -- >> it is safe so say that, sir. this capability, 215 collection of data is focused on homeland, detecting the plots that cross foreign domain into the u.s. domain. >> 54 cases? >> it was not, sir. given only 313 plots had a home nexus with principle opportunity to make a contribution in 13 or less. in fact, it made a contribution to a plot disrun of thed overseas shows that this is looking -- not simply at the homeland, but the foreign homeland nexus. >> i hope we are not mixing up 215 with others. >> we try hard not to do that, sir. they are distinguished, but complimentary tools. >> if i could add some insight? >> my time is up, but go ahead,

mr. joyce. they are just here to help. go ahead. >> i just want to add, as you mentioned before, you know, how many ducks do we need? we have to frame this by understanding who the adversary is and what they are trying to do. they are trying to harm americans. they are trying to strike america. what we need is all these tools, so you mentioned the value of 702 # versus the value of business records 215. they are different. i make the analogy like a baseball team. you have your most valuable player, but you have players who hit singles every day. >> mr. joyce -- >> i just want to relate to the homeland plots. in the plot to bomb the new york subway system, business record 215 played a role. it identifies specifically a number we did not previously know -- >> it was a critical role? >> what i'm saying is what it plays -- >> undercover work that took place in there? >> yes, there was some undercover work, but what i'm

saying is that each tool plays a different role, mr. chairman. i'm not saying that it is the moes important tool. >> wasn't the fbi already aware of the individual in contact? >> yes, we were, but not of that specific telephone number nsa provided us. >> the only reason i go down this, i, you know, we did everything, for example, if we could have security, strip senched everybody, we're not going to do that, and more security if we close up borders completely to everybody. we're not going to do that. if we put a wiretap on everyone's cell phone in america if we sench everybody's home, but there are certain things, certain areas of our own privacy that we americans expect, and at some point, you have to know what the balance is. i've taken it to others.

>> clarify for me the process -- we had the testimony now, so we ask questions of all the people. >> that's right. well, we were having questions of mr. cole, but mr. joyce here to be able to add if necessary. >> sure. >> thank you. >> i'll start out with mr. cole, and by questions are to emphasize and to inform, even be repettive because i think the public needs a greater understanding of what we're up to here. there are two legal authorities that are dis-- that we're discussing here. one, section 702 authority, that one i'm going to lay aside. the other authority is section 215. many americans are concerned about the scope there. they fear that the government is spying on them and prying into their personal lives. i asked questions to make absolutely sure that i understand the scope of 215. first question, what information

does the government collect under this program, and specifically, is anyone's name, address, social security number, or location collected? >> senator grassley, first to answer the second part, name, address, location, social security number is not collected under the 215 program at all. >> okay. >> never has been, never will be. secondly, the nature of the collection is really very dependent on this reasonable articulate suspicion. while a lot of met a data exists in a data base, it cannot be accessed unless you go through the procedures of documents that there's reasonable or articulate suspension that the phone number you want to ask about is associated with terrorists. unless you get that step made, you cannot enter that data base and make a query and access any of those data. >> okay. again, for emphasis, is the

government listening in on any american phone calls through this program, and let me say that i just heard within the last week on some news media that somebody's declaring that any bureaucrat someplace in some intelligence agency can pick up the phone and listen to the conversation. >> nobody is listening to anybody's conversations through this program, and through this program, nobody could. no information like that is being collected through this program. >> section 215 contains the requirement that records collected under the program provision be quote-on-quote relevant to authorize investigation. as a legal matter, how can you justify the assertion that phone records of millions of americans who have nothing to do with terrorism are relevant to an authorized investigation under section 215? >> so i beginy notingthat a

repeatedly over the years found the records are, in fact, relevant. the reason is that the standard of relevance that we're talking about here is not the kind of relevance that you think about in the perry mason since of the criminal trial. it's a much broader standard of relevance, and in a number of circumstances in the law like grand jury, subpoenas, or civil discoveries, it's a well-accepted concept that if you need to get a large group of records in order to find a smaller group of records that actually provides the information you need to move forward, that the larger group of records can be relevant. that is particularly true in this case because of the kinds of controls that the deputy attorney general mentioned, the fact the queries are limited, access to the data base stay is limited, and for that case, they repeatedly found the records are relevant. >> is there any legal precedent that supports such a broad definition of relevance to an

investigation? >> i'd actually defer that to the deputy attorney general. >> okay. >> well, there's -- the legal precedent comes from the history of all the orders that have been issued. the courts having looked at this under the fisa law and under the provisions of 215, and making sure that under the provisions and the ability to get these records relevant to a criminal or rather a foreign intelligence investigation, they have gone through the law that mr. lit described. on, as i said, i believe 34 different occasions to do this analysis, so those are, that legal precedent is there. >> okay. mr. joyce, one part of the balance that we have to strike, protecting privacy of americans, and the other part, national security, thankfully until the boston bombing, we have prevented large scale terrorist attacks on american soil. i have a few questions about how valuable the role of section 215

and 702 programs play in predicting our national security, two questions, and then i have to stop and go to our colleagues. can you describe any specific situations where section 215 and section 702 # authorities helped disrupt a terrorist attack or identify individuals planning to attack, the number of times, and then, secondly, if you didn't have the authority to collect phone records in bulk, the way that they are now under section 215, how would you have affected those investigations? >> so your first question, senator, as far as a specific example of when we utilized both of the programs is when i first mentioned. the first al-qaeda directed plot since 9/11 in september of 2009, when others conspired to plot to bomb the new york subway system.

we initially found out about it through an nsa702 coverage, and it was actually talking 20 an al-qaeda courier who was -- he was asking for his help to perfect an explosives recipe, so but for that, we would not have known about the plot. we followed that up with legal process, and then had fisa coverage on him and others as we fully investigated the plot. business records 215 was also involved as i previously mentioned, where we also, through legal process, were submitting legal process for telephone numbers and other e-mail addresses, other selectors, but nsa also provided another number we are unaware of of a co-conspirator, so that is an instance where a very serious plot to attack america on u.s. soil, that we used both the

programs. i say is jim and leahy mentioned the difference in the utility of the programs, but what i say to you is that each and every program and tool is valuable. there were gaps prior to 9/11, and what we have collectively tried to do, the members of the committee, other members of the other oversight committees, the executive branch, and the intelligence community is we have tried to close those gaps and close the seams. in the business record 215 is one of those programs that we have closed those seams. i respectfully say to the chairman that the utility of that specific program, initially, is not as valuable. i say you are right, but what i say is it plays a crucial role in closing the gaps and seams that we fought hard to gain after the 9/11 aphaks. as you mentioned, another instance, when we used the business record 215 program, as chairman leahy mentioned, so

initially, the fbi opened a case in 2003, based on a tip. we investigated that tip. found no nexus to terrorism and closed the case. in 2007, the nsa advised us, through the business report 215 program, that a number in san diego was in contact with east al-qaeda -- al key data base east africa member in smoal ya. we served legal process to identify that unidentified phone number. we identified it. through further investigation, we identified additional co-conr individuals that have been convicted and some pled guilty to material support to terrorism. i go back to we need to remember what happened in 9/11, and everyone in the room remembers where they were and what happened. >> mr. joyce, you're stating the obvious there, but specifics

because we are going to have votes on the floor that will take us out of there. we want to be close to the time. >> all i said, mr. chairman, respectfully, you mentioned the dots. we must have the dots to connect the dots. >> thank you. one of the advantages of this committee on the members of both sides of aisle bring all a lot of different abilities and various areas of expertise. the next witness is part of the -- >> next witness? >> next questioner, the chair of the senate intelligence committee, senator feinstein, and we're at great advantage to have her on the committee. >> well, thank you very much, mr. chairman. i'd like to begin by putting a ouple

these have just been declassified. the first is a letter to myself and senator chambliss and february 2nd, 2011 before this program came up, before the senate, explaning it, making the information available. the second is that same letter to the house, so we have before 2010 and 2011. i'd also -- >> without objection, they will be made part of the record. >> thank you. i'd also like to -- i just realized that i believe the statement makes public for the first time a fact, and it's an important fact. it's on page 4 of his letter, and what he points out, i think mr. cole describes that the query, which is the search of the data base, can only be done on reasonable, articulateble sus

suspicion, and only two people have access to that, trained and vetted at the nsa. if the numbers are run, and it looks like there's a problem, the report is made to the fbi, and the fbi looks at it, and if they want to collect act can, they must get a probable cause warrant from the intelligence surveillance court. let me quote. in 2012, based on those fewer than 300 selectors, that's queries, which actually were 28 l 8 -- 288 for americans, we provided a total of 12 reports to the fbi. which all together is less than 500 numbers. what you're saying, if i understand it, is that maximum, there were 12 probably cause warrants; is that correct?

>> i think in truth any one of the numbers tipped could have led the fbi to develop probable cause on more than 12, but there were only 12 in 2012 and less than 500 numbers in the reports collectively tipped to the fbi in 2012. >> let me ask mr. joyce this question. can you tell us how many orders -- how many probable cause warrants were issued by the fbi in 2012? >> i can't off the top of my head, senator, but i can get you the numbers. >> well, i appreciate that. >> i add, though, it's a good point on whether it's the 702 program or the business record, 215, once the information is passed to us involving anyone in the united states, we must go to the foreign intelligence court, show probable cause on the warrant basically to provide

content, and what provides details for that specific individual. >> now, the nsa produced and declassified a chart, which i'd like to make available to all members. it has the 54 total events. it includes section 702 authority and section 215 authority, which essentially works together, and it showings events disrupted based on a combination of these two programs. 13 in the homeland, 25 in europe, and five in africa, and 11 # in asia. now, i remember, i was on the intelligence committee before 9/11, and i remember how little information we have, and the great criticism of the government because of these stove pipes, inability to share

intelligence, the inability to collect intelligence, we had no programs that could have possibly caught two people in san diego before the event took place. i support this program. i think based on what i know they will come after us. we have to prevent an attack from happening. that doesn't mean we can't make some changes. yesterday, at the intelligence committee, i outlined some changes we might consider as part of the authorization bill, and let me quickly run through them. the number of american phone numbers submitted as queries on a regular basis annually from the data base, the number of referrals made to the fbi each year based on those queries, and how many times the fbi obtains probable cause warrants to

collect the content of a call which we now know is very few times relatively. the number of times that a company, this is at their request from the high-tech companies, that any company is required to provide data pursuant to fisa's business record provision. as you know, the companies who provide information are seeking to be able to speak more publicly about this, and i think we should. there's some changes we can make to the business record section. we're looking at reducing the five-year retention period that nsa keeps phone records in its data base down to two or three years. it's my understanding that the usefulness of it tails off as the years go on. we have to determine that point and then consider it. requiring the nsa to send to the fisa court for its review, the records of each query of the

data base as soon as is practicalble so they can determine the importance of the query under the law. these are things that can be done to increase transparency, but not to stop the program. i believe, based on what i have seen and what i read intelligence regularly, that we would place this nation in jeopardy if we eliminated these two programs. thank you, mr. chairman. >> mr. chairman, may i offer a brief response to that -- >> just a moment, and i will. >> okay. >> would you also include reporting how often nsa or anybody else goes into the individual's browsing history or their e-mails? >> sure. >> social media activity. >> right. we could do that in the private sector too -- >> yeah, i know. i was just looking at the article in the "guardian" which

may or may not be accurate. you wanted to say something? >> yeah, i think that the administration is more or less in the same place that senator fine sign is. we are open to reevaluating this program in ways that can perhaps provide greater confidence and public trusts if this is, in fact, a program that achieves both privacy protections and national security and, in fact, the white house directed the director of national intelligence to make recommendations in that area, so we will be looking forward to working with your committee and this committee to see whether there are changes that can be made that are consistent with prereceiverring the essence of the program and yet provide greater public confidence. >> thank you. senator cornin. again, speaking of the diversity we have, he's the deputy republican leader, and we appreciate the time he spends in this committee. >> mr. chairman, thank you for having this hearing, and thanks

to each of the witnesses for your service to our country. those of us who have been here for a little while and through the evolution of these programs have, i think, learned more than the public generally knows about how they operate and, i think that's helped give us confidence in what is occurring with this, but i'm sensitive to senator fine stein, the chair the senate intelligence committee, her observations, and it was reiterated on maintaining public confidence in classified programs, which is a tough thing to do, but i think so i've also reminded of the fact that since 2007, we have 43 new members of the united states senate, and so there's been people who have come to the senate in recent years who perhaps have not been able to observe through their regular work, some of the

development of these programs, and so i think a hearing like this, the other hearings that you've participated in that i've attended have been very important to giving everyone a foundation of information where they can have confidence on behalf of the people we represent. i'd like to ask maybe starting with mr. cole and go down the line, to get your reaction to the criticism made of the operations of the foreign intelligence surveillance court made by former judge -- foreign intelligence surveillance court judge james robertson, and this really has to do with the nature of essentially ex parte proceedings before the court. i know that when it comes to individualized particular warrants, it's common in our system to have, essentially, ex parte proceedings, but here when the foreign intelligence court is authorizing a program, it is,

according to judge reportson, under this jurisdiction, it's turned the court into an administrative agency, and, of course, talking again about public confidence in the oversight of the court which i think is an important part of maintaining that confidence, whether you think there might be some advantage as senator bloomenthal and i discussed informally. i trust your experience with the adversary yal process in the courts is it produces more information that allows the judge to make a better decision. i want your reaction and go down the line. >> thank you, senator. first of all, i can tell you from the practice we have is more than an administrative agency.

they push hard and are the guardians of the law in the constitution. the topic of having an adversary, and there's one we're in the process of discussing and i know it discussed in the senate and in the house, and it's one of the areas that is part of the debate to have on how best to do this. there's, obviously, issues we have to work through as to clearances and classifications and who would be there and what the role would be and things of that nature if it's a practical way to do it, but those are the kinds of discussions that i think we do need to have. as you pointed out, it's not the usual course, and the criminal law context, we have many search warrants, title 3 surveillance warrants that come in that are not done in an adversary way, but this is certainly part of what we'd like to be talking about and see if this has some utility. >> mr. english, do you have anything to add? >> my background is largely operational, not in the training of the law, and with that said, more than mindful that these

things are done fully consistent with the constitution, we welcome in aall hard questions from the adversary process or the process we engine, we should be held accountable to answer the questions and ensure the authorities granted spormtings the whole of the constitution, not just the defense of national security, but the defense of civil liberties. >> thank you. >> the only point that i'd like to make from the perspective of the intelligence community is to note that we already -- this is an unusual process to have the court involved in essentially executive branch committee. i don't know of any other nation in the world ha has the degree of judicial supervision of intelligence activities that this country has already, and i think that to some extent people make a mistake in the analogy hearing the term "court" thinking of a criminal trial or civil trial. the question is, what is the best way to ensure that our

intelligence programs are conducted in compliance with the law and adequate protection for people's privacy and civil liberties. if it helps to have an adversary process built in that, that's appropriate, but we shouldn't be trying to make this mimic a criminal trial because it's a very different process. >> mr. joyce, do you have anything to add? >> no, i'm operational, so i defer to the lead attorney general. >> okay, thank you very much. thank you, mr. chairman. >> thank you. i don't -- i hope you are not saying that if we have something that is very unusual. we have something that can collect data base to on u.s. citizens that you're not saying the court should not be involved? >> i'm not saying that. >> just making sure. >> not saying that at all. >> thank you. >> senator klobuchar? >> thank you very much, mr. chairman, thank you to the witnesses. as a former prosecutor, i long believe the laws have to strike

the right balance between protecting civil liberties and national security. most americans didn't expect the sweeping nature of the surveillance programs, and for that reason, i think this opportunity to re-examine these programs to see if there are ways we can ensure that they are more transparent and accountable without sacrificing the benefits they provide to national security is very important, and i just got this order, the court order, just hot off the presses here, and you said in the earlier testimony, you talked about the meta data, which i assume is the collected data we heard about on domestic phone calls, not the phone conversation itself, and you go to category two, which must be when you invest gait parts of the meta data, based on this order, and then category three, this is how i'm thinking of it in terms of circle, would be when you would actual

investigating a person. is that a fair way to look at this? >> i think that's a very good way of looking at it, and the word you used, i think, is important here, the surveillance that's being done because the only thing we're actually involved in surveilling are these much smaller groups that we have reasonable articulateble suspicion for. you have to go through very specific requirements contained in the order before you surveil. >> you said it had to be of reasonable suspicion it's a terrorist. that's what you said earlier? >> reasonable suspicion it is relevant to an investigation of certain terrorist organizations. >> okay. and so is there a percentage of the data that's -- you look at at the big meta data, and down to the next category, which percentage is the next based on this order? >> i think it's it's hard to quantify. i he numbers from .0001% of

the data, it's a very, very tiny fraction of the data that is actually accessed and surveilled. >> down to the part where you actually investigate someone or have a court order to look into it, what percentage is that? >> even smaller because we then have to have probable cause to believe that those people are falling within the requirements of the foreign intelligence surveil los angeles. >> okay. given how small this is, is there no way of limiting the breadth of the data that would not have adverse effects on our ability to accurately monitor national security threats? >> this is what we are working on and trying to work through as senator fine stein noted. this are recommendations, we are looking through the process to see if there's other ways to do this to preserve the effectiveness of the operation and limit whatever kind of privacy and civil liberties

intrusions that come from that. very good. i know one idea that general alexander suggested is he's open to the idea of telecommunication companies holding the records rather than the nsa collect them. we have that issue with telephone immunity anyway as long as the government could get access. do you want to testify about that and answer that? do you think that's a viable alternative? seems to me we have to do more than that. >> yeah, i think there's multiple implementations that could work. we have to score all implementations against the set of criteria including they provide protections for privacy and civil liberties, but they have to have significantbredth to the question that if you have a question of this data base, say you have the situation where there's a number from east after -- easteast africa with reasonable suspicion, you want to see if there's a connection into the homeland.

you need significant breadth in the homeland to have the confidence if you come away with no response, you take that as confidence there is not a response, or if there is a response, you found it. whether it's in any particular location in the world, so the breadth is important, but i think that we can take a look at whether this is stored at the providers as long as you have confidence to do this in a timely way. we have to sometimes disrupt operations that's in play, in progress, and 10 seconds, hours matter. there could be other situations where you have the time to, perhaps, take more time, but we'll have to think our way through whether providers can meet the standard. i think there's technical architectures where they can. finally to the question that senator feinstein asked, a thoughtful question, do we have to hold records for five years? experience shows intelligence at large tends to have a significant tail off at five years, but there's a knee in the curve that might live two years or three years. we need to base upon data with a rearward look, look hard at it, and determine how long these

things really are necessary, and beyond that, how long they are valuable. >> one quick question at the interim. now that this court order is declassified, is there an effort to declassify the legal rationale behind it? >> we're working on trying to classify a number of things in the area. we're trying to gent as much as we can out. obviously, balancing the national security concerns with the releases, but our goal is to get out as much information as we can to provide transparency on this. >> thank you very much. >> thank you, all, very, very much, and let me ask this with regard to mr. joyce's comments, about a certain case that they were able to interdict and stop dealing with the subway matter, and he said that the collection of data under this program played a role in this successful culmination of the case. fundamentally, you are a --

you're a deputy attorney general under janet reno for six years, department of justice, aba's criminal justice committee, you studied the issues and required to make sure that laws are followed, but is there what was done in that case? is it violating the constitution in any way as defined by u.s. case law and the words of the constitution itself? >> so, fist, i thank you for the promotion, but i never served as deputy attorney general. i had a couple positions in the department. >> deputy assistant. >> get all these assistant deputies and deputy assistants right. >> we can all agree he's highly qualified. >> from your experience in the matters, and i think i just want to raise a certain point if you give me a brief answer on this. >> i think the answer is it's quite clear under the controlling case law that

collection of this kind of telephone data from the telephone companies is not a violation of anyone's constitutional rights. >> and when i was a federal probation report, mr. cole, you were a prosecutor, virtually every complex case resulted in a subpoena to phone companies to get people's phone records; is that correct? >> i'd say the vast majority involved getting phone records from a case. >> and when you do that, you ob obtain their name, and a lot of details about the call, but not the contents of the call. >> that's right. many times you can get subscriber information, who owns the phone, what the billing address is, things of that nature, which we don't get under this program. >> this this hay stack of information you have is only numbers? it doesn't even have the names of the person connected to that number, the subscriber of that number; is that correct? >> that's correct. if we find a chain that's important, we then have to do other investigation to find out

who actually belongs to the numbers. >> well, chairman lei lee and others, and we talked -- when the patriot act was passed, we went into great, great detail about all these issues, and i would say balancing the constitutional rights of dangerous versus constitutional rights is not the right way to phrase this. i believe everything in the patriot act that we passed was consistent in prings. to the very things done by law enforcement for years and decades in terms of the issues of subpoena and obtain records. maybe if a few new applications to it to new technologies, but, essentially, the prince. s were maintained, would you agree, mr. cole? >> yes, senator, i think we, as i said at the beginning, i think we've struck the balance

properly here, but there's always room for discussion and getting people's input and times sometimes do change, and it's good to come back and revisit these things and make sure we have the balance right. >> well, i agree with that. i think the questions raised required to look at that. now, the data, this hay stack of phone numbers, there's no ability to go back and listen to any of the conversations that occurred at a previous time, is there? >> no. we don't even capture through this any conversation so there's no ability, no possibility of listening to conversations through what we get in this program. >> and if mr. litt, an intelligence lawyer here, if you have the ability to tap a terrorist phone call in europe or yemen, let's say, and that person calls to the united

states, by definition of a lawful wiretap, you listen to the person that the individual calls; is that right? so i mean a wiretap by definition is to listen to the conversation that the bad guy has with whoever he calls. >> that's correct. under fisa, the court requires us to have minimization procedures that we don't retain or decimate conversations of americans unless those are valid foreign intelligence or evidence of a crime. >> but if you want to tap a terrorist you've identified in the united states, you have to have a warrant with probable cause; is that correct? >> that's correct. >> if you identify a person by surveilling a foreign terrorist, you identify phone calls to the united states, yd

to have information sufficient to get a court to give you a title 3 warrant to listen to that perp's phone calls. >> it could be a title 3 warrant, could be an individual warned under title 1 # of fisa, but either way, there's a probably cause standard. >> that requires court approval? >> yes. >> mr. chairman, i tried -- i know this committee worked hard on this, trying to make sure that every provision in the act was consistent with our constitutional and legal heritage, but we'll listen to the concerns that were being raised, and if we made a mistake, i'm willing to change it, but i'm inclined to think all of these actions are consistent with the constitution and laws of the united states. >> one of the means we're having the hearing is there are going to be proposals for changes in the law, and i want to make sure that we have as much information as possible for it. senator franken. >> thank you, mr. chairman.

i also want to thank all the witnesses here, mr. cole, mr. enlglis, mr. litt, mr. joyce, your service to the country. i want to be clear at the outset. i think the programs protect the country and have saved lives, but i do think there is a critical problem at the center of this debate, and that's the lack of transparency around these programs. the government has to give proper weight to both keeping america safe from terrorists and protecting americans' privacy, but when almost everything about these programs are secret, and when the companies involved on restrictive gag orders, the american public has no way of knowing whether we're getting that balance right. i think that's bad for privacy and democracy. tomorrow, i'm introducing a bill to address this, to fix this forcing the government to

disclose how many americans had their information collected under key authorities of sir vail lance act and also will force the government to disclose how many americans have had their information actually reviewed by federal agents. my bill would also allow private companies to disclose aggregate figuring about the number of fisa orders they are receiving, and the number of their users that these orders have affected. two weeks ago, a broad coalition of 63 internet companies and bipartisan civil liberties groups sent a letter to the president asking for the reforms that my bill would make law. i'm proud to say that i'm introducing my bill with the support of chairman leahy, senator bloomenthal, and a number of others not only the judiciary committee, and what i heard from senator feinstein, there may be some overlaps in our approaches, and i'd be happy

to work with her. i'd like to focus questions on the subject of transparency. mr. lit, in the weeks after mr. snowden's leaks, the officer of the director of national intelligence, the fisa, he classifies the fact that in 2012, only 300 queries were run on the data base of telephone records compiled under section 215 of the patriot act. can you tell me why the odni, decided to declassify that fact? >> so, first, to be clear, what was declassified was the fact that there were fewer than 300 telephone numbers approved for queries. there can be more than one query based on the same telephone number, if, for example, over time you want to check it and see whether there's been additional communication, so the number that was declassified was the number of selectors as to which reasonable articulateble

suspicion was established so they could be the basis of the query. >> why did you decide to declassify the fact? >> you know, what we're doing is we are looking at all information surrounding these programs, and what has already been revealed, because fundamentally they were classified in toto to begin with because we felt revealing our capabilities gave our adversaries an edge in how to avoid those capabilities. once the fact of the programs became public, we lookedded at the details surrounding the program like the orders released today and the number you mentioned there, and we're making an assessment to each one of them whether it's in the public interest to release that particular fact which is previously declassified. >> i think that i -- i don't want the public to take our word for it always, and i think there's a balance here an

transparency is part of the balance, and i don't want a situation where the government is transparent only when it's convenient for the government. >> i -- >> an hour ago, odni declassified a court order under 215. that's a good thing, but odni has known for weeks that this hearing was coming, and, yet, odni released the material just a few minutes before the hearing began. again, a step forward, but you get the feeling with the ad hoc transparency, that does not gender trust, i don't think. >> i couldn't agree with you more. i think we have an obligation to go through and look at the bad as well as the good, and declassify what can be declassified without danger. we had a discussion yesterday within the executive branch about whether we should release documents this morning or not because it's not a good idea to

release them, and we came to the conclusion once we make the determination once documents are declassified, there was no reason to hold them up any longer. >> did you just start thinking about that decision, like, yesterday? >> no. >> you've known this for a long time. it might have been -- you might have thought about this weeks ago and said, you know, maybe not the day of. >> we have been thinking about this for some time, and we've been processing these quickly as we can. there's redacss that remain classified, and it's an interagency process to release what can be released. >> my time is up. i think we should create a strong permanent set of public reporting requirements that empower the president public toh their own conclusion about the programs, and that's the bill i'm working on would complirn. again, i'd love to work with

senator fine stein and mr. litt, would love if you worked with me to get the reporting requirements right as we move forward with the bill. would you do that? >> absolutely, glad to do that, sir. >> thank you. mr. chairman? >> we're going to go next to senator -- but i comment all four witnesses here for their candor and single out mr.-- but i have been advised that you've always been very direct, very clear very straightforward, you've been the same way in open session, and i appreciate that. >> thank you, mr. chairman, and thank you, sorry i was not here to hear your testimony. i know you all noted in your written testimony this there are

significant checks in the fisa system. do you believe that there are insufficient checks to outweigh the concerns that some have about the appointment of the independent council? if you touched on this in earlier questions, i apologize, but general cole, can you mention that with regard to indpecht counsel, do you think in the second pam, mr. baker raises some issues and problems with independent counsel, can you give me your thoughts on whether you think that's needed or not? >> certainly, senator. this is a topic that's being discussed both in the administration and in the congress as one avenue that might be available, traditionally, when you issue search warrants, when you issue wiretaps and things like that. in the criminal law, there's nod an adversary process that takes place. there's not somebody on the other side so there's a legal tradition that the way we've

been doing it is certainly one done in other con terkses, and we have the court that's involved which is unusual as mr. litt pointed out, especially in a foreign intelligence context, to have the courts involved at all, but this is something that i think we're open to having discussions about as to what the utility would be, what the role would be, how it would work, and the devil can many times be in the details, but we think all the things are worth discussing to make this the best program it can be. >> if there were an independent counsel involved, can you see perceive problems in terms of timeliness with a lawyer, a staff cleared in time to review this sensitive information, somebody else -- anybody else who wants to address that as well. >> i'll just start. >> yeah. >> it may be a little bit, but the court pushes back a lot itself. there's an enormous proe tt

takes place with the court itself to satisfy all requirements under the law and constitution, so if there's somebody on the other side doing it, i would imagine they'd be doing the same thing on roughly the same schedule. >> if i could just add to that, there's a letter that the chief judge of the foreign intelligence surveillance court that wrote to the chairman available on the p internet that outlines the detail of the procedures the courts follow and gis a good sense for the care and thoroughness that the fisa courts exercise today. >> there's been some criticism that the process that we have for the election of the judges may lead to republican judges appointed than democratic or republican appointing judges than democrats appointing judges. do you sense or see any difference in your experience, all of you, with -- is that an issue to be concerned about, or have you seen a difference in the decisions rendered?

>> from my experience, i have not seen any decisions. the judges or our judges in their guided by the law, and not necessarily by politics, but that's certainly a topic we'd leave to the sound discretion of the congress. >> any other thoughts from anybody else? >> any problems with that process? selection of judges? >> all right. mr. litt? >> no, i was going to say it's hard to tell how another judge renders the decision because there's just one judge rendering the decision. >> right. all right, thank you, mr. chairman. >> thank you, mr. chairman. i'm a liberal arts lawyer, and i took some math courses, but it's been a long time ago, and so i'm going to ask the panelists, whoever, to help me do the math here. in 2012, there were queries

that resulted in the search of records, and we're told that there were three hops. in other words, if i was the subject matter of this search, and i called senator feinstein, they would accumulate all the records of my trch calls to her and others, and then all of the records the senator feinstein's telephone calls which may have included chairman leahy, and now you include all of his records as well. the aclu will testify, at least speculate later, that if i had an average of 40 contacts, that means for my name, my query, you accumulate 2 million phone records, 2 million for the one inquiry. multiply that in the year 2012 by 3 # 00. you're talking about 600 million

phone records. now multiply that times seven years. so what has been described as a discreet program to go after people who cause us harm, when you look at the reach of the program, is envelopes a standard number of americans. help me with the math if i missed something or minimize the number? >> sir, if i can start and apologizing for the format, the unclassify the format, discreet, but happy to follow up in any detail you prefer here or at nsa. first and foremost, analysts are charged to provide information truly useful to the federal driven investigation. in that regard, they are judicious about choosing when to do a second hop or a third hop. those are not always exercise the. they doacialt always exercise a second hop, and so while

theoretically 40 times 40 times 40 gets a large number, that's not typically what takes place. if you see, for example, at the second hop there are very significant numbers associated with one of those numbers, they would have to come to some deduction as to what that means. that could be what you have is a piece of the delivery man. you don't want to pursue that. that's not useful. if on the second hop, it hops to a foreign number known to the intelligence community because it's a known terrorist, you'd want to make the third hop to understand what's beyond that. >> i understand that part of it, you're trying not the waste the time or resources of the government and protecting our nation. >> yes, sir. >> the potential reach of this, when we say "300" is way beyond 300. >> it's a very important question. compare the theory to the practice. we try to be very, very judicious in the use of the very narrowly foe focused authority. the reason we declassified the numbers is to show we are, in fact, judicious. less than 3 # 00 times did we a

prove the selector of the query in 2012 and provided less than 500 numbers to the fbi in all of 2012. >> if i could add one thing to that, it's important to remember that all we're getting out of this is numbers. nobody's names, nobody's address, the contempt of to community cations. these are all -- this is nothing but a tool to try to identify telephone numbers that warrant further inquiries. >> i understand that. here's the point that i offered an amendment before the comet that garnered a grand total of four votes years ago on this very subject because the members were not aware of the 215 program and its details. i knew more than some, but issue obviously, i didn't know as much as what i'm learning today, and there was -- there's genuine concern today expressed at that time because of the limited knowledge of the members, i got four votes. he's the question i get down to asked over and over again. if my cell phone is an area code 217, which it is, and i'm a

suspect, i certainly think it's appropriate, and e encourage our government to find out who i'm talking to. that's important. i still caped get to the point -- can't get to the point of requiring every person with a 217 area code to have their records collected in terms of their telephone conversations. now multiply that across every area code across america, and look at the potential reach. what's described as a narrow program is a very broad program in terms of the meta data collection on the front end. ..

we knew a number we have reasonable suspicious was affiliated with a terrorist group not -- plot against the homeland. that was in somalia. we had reasonable suspicious in the united states. we have no idea what it might be associated with. we had to do a query we didn't know if it would be a 303 area code. what are the grand set of possibilities. in order to find the needle that matched up against the number. we needed hay stack. that's the premise nice in this case. in that point, if somebody -- this is going to connect to a number in san diego that would have been surprising if it connects to a place in yemen.