collin o'mara, all the way from i want to say san jose california. did you used to live in san jose? we stole him.

we stole him from san jose at the tender age of i think 29 or 30 to come all the way to the national association of environmental control. if i had half the energy of this guy, i would be president and vice president. he's an amazing guy. very proud of the work that you do. thank you for joining us today. our second witness is from a bigger state than ours new hampshire, and kelly ayotte can't with be us. dr. paul is it kirshen? dr. kirshen, research professor at the university of new hampshire. what is your mascot there? >> wildcats. >> wildcats, yes. we've had some rough football saturdays against the wildcats and the blue hens. we're all the happy to welcome you here. i understand your research focuses on engineering and management as well as climate change vulnerability assessment adaptation, planning. it's a mouth full but we're

happy you could join us. thanks so much for coming. lindene patton, my mother was a patton, chief climate product officer for zurich international group. in this role ms. patton, i'm told, is responsible for policy and risk management related to climate change. remember my staff said you might have a member of your family here or two? is that true? would you put down your mic? introduce your family. they'll stand up. >> my daughters amelia and zoe. >> amelia, would you raise your hand? >> hi, amelia. zoey, would you raise your hand? who's in the middle? >> a friend of hers, sharon. >> all right sharon. nice to come. >> and our aweupere, gosha. >> you've heard me say with the first group, about five minutes or so if you will and then we'll

ask some questions. delighted you're here and happy to be here along with senator jackson. colin, will you please proceed. >> thank you senator johnson. our thoughts go out to senator coburn. thank you for holding this hearing today. your timing is good and it's an important topic to delaware. senator carp spent a lot of time in helicopters. in delaware we spent a lot of time evaluating it. i'd like to talk about delaware's approach and i would like to offer common sense solutions that should be part of the conversation going forward about shifting the focus to preparedness and resilience and a little less on the money on the back end. in delaware our approach has been fairly simple. start with the science and economics, and make sure you have good science and economics and know your vulnerabilities and know the tradeoffs. it's easy in a political environment to move towards the

things that has the most attention but not the most economic imperative. we've looked at flood plains, sea level rise and i have a report that i'll introduce with the chairman's consent. we've looked at 75 different infrastructures and the vulnerability and then we took the data and made infrastructure impacts. we have that data drive our decision making in having the policy and it has the type of list that senator johnson is asking about to make sure that the money is going in places that will make the sense. we had tony pratt who's behind me who is our administrator of shoreline and coastal protection, and looking at the bay regions and looking at the economics and who gets the benefit? most of the benefit is the private owners and not the broader population which suggests that the private owner should play rather than the broader community. we'd like to see the economic contribution to the coast and if

i can out the economic benefits of having those protections. having that knowledge is important because it allows us to invest strategically. healthy dunes, healthy wetlands the coast. they turn out very well after the storms. we see time and time again communities that aren't as prepared don't do nearly as well. we're taking a lot of steps to build resiliency into going forward. modernizing stormwater. we want to stop the bleeding and make sure new development is resilient. now that we have this kind of data that we're not exacerbating the problems and costs. because of all of this the governor was invited to be on the president's climate task force with a focus on the natural structure and resources projects that we're doing across the state whether it's in wilmington or elsewhere we are piloting projects that we

believe are good. one, resiliency needs to be built into every single federal investment. we don't need a new bureaucracy. we are spending billions every year. if we build resiliency into the projects, then we're okay. you don't want to throw good money after bad. the second is we need to invest more in protection. we're spending $5 billion in the army corps line. that's 50 years worth of investments compared to what they normally get for their protection line. it's about 100 100 million. we're spending 5 million a year. it's become easier to pay for it after the fact as opposed to investing in it. we need to break the disaster

rebuild, it's so easy to rebuild to the old infrastructure standards. you can get money quickly as opposed to rebuilding to a new resiliency standard. there isn't a lot of conversation about this. great recommendations coming out of georgetown but we need to make sure rebuild to a higher standard. we also need to prioritize comprehensive projects. right now as we talked about with the border contacts, you can have the army corps that's taking a bunch of sediment out of the water way, but it's cheaper to put it in a landfill than it is the beach next door. the army corps will choose the lowest cost option. they won't put it on the beach they'll move it somewhere else. we need to combine those.

we could be saving tens of billions of dollars a year. we need to have the nfip regulations which haven't been updated since 1989. we've focused on the money side. the cost of the insurance becomes cheaper if the standards are higher. we need to prioritize the natural infrastructure. they work exceptionally well. they shouldn't be the exception or the pilot project enmore. they need to be the default. we need to reward communities that are prepared. right now delaware is paying a lot of development money and we don't receive a lot after the disasters. it's completely crazy. we need to make sure that there are incentives and priority given to states that have made their own investments and are doing the hard work to hold themselves accountable and not

relying on the federal government as senator johnson said. very two last points. we need to ensure that public expenditures can receive public benefit and really pryioritizeing things for a broader benefit to all people and we need a much greater community on hazardous sites. we have super fund sites. when those wash out, it's massive. we've been focusing on these more. there's not nearly as much attention. fema will help you acquire a parcel. if it's contaminated fema won't touch it for liability. these are things we can change. the senator is looking at these because i think our experience in delaware shows if you do prepare an ounce of prevention is worth a pound of cure. >> thank you so much. you got a lot in in 6:50, didn't

he? >> i apologize for going over. i always talk quick. >> that's all right. i was watching the body language of the co-panelists. dr. kirshen is nodding his head up and down. we'll find out now. dr. kirshen thanks so much. >> thank you very much. thank you, mr. chairman, senator johnson, for giving me the opportunity to talk before this committee. i do agree very enthuseiastically with everything that senator o'mara is proposing. we have long-term economic consequences on a northern city being impacted by first of all extreme amounts of precipitation and secretary of all coastal flooding from large coastal storm surges. here i'm going to talk about the long-term costs of not being prepared for these present and

future events and compare them to the benefits being prepared. because of the changing climate the climate change impacts have always been part of my analyses. also want to point out that the case studies to new england are relevant to the rest of the united states and the world. the first study i wanted to talk about is the impact on the eastern coast of massachusetts, stretching from north of boston through almost cape cod. it's an area of large cities like boston but also suburbs. when you look at the total damages of surge flooding from storms to residential, commercial industrial buildings over the next 100 years serving moderate scenarios -- if i were looking at the damages and look at where it would be reduced evaporation would be taking

place. adaptation is measured by damages avoided and measure the costs by cost of adaptation. we found better cost ratios. what that means for example, benefit-cost ratio is six to one. every dollar invested in adaptation reduces long-term damages six times. these are, again showing the true benefits of preparing for these present and future events. the second case study was the hansen seabrook falls area of new hampshire. coastal area of new hampshire with many second homes. typically on the barrier beaches. here we look at the cost of protecting privately owned buildings, in other words, homes and commercial facilities and also key public assets sewage treatment facilities, schools from present and future coastal storms by developing adaptation plans protected 20-50 under low

and high rise scenarios of approximately one to two feet. we found very large benefit cost ratios. ratios ranging from 11 to 16 for public assets. the stormwater in the winter hill section ofsommerville, massachusetts. this is located north of cambridge and boston on the mystic river. this is served by a combined sewer system. presently the storm system -- the sewer system only has the capacity to handle all the wastewater and a small amount of the stormwater whmpt a larger storm occurs, only one inch of rainfall some of the extra combined sewage is treated at the regional wastewater treatment plant but most of the combined waste is combined to the mystic river and is floating

in the streets as raw, untreated sewage. this will be increased by 10 to 30% higher rainfall in 2030. so again we did a benefit-costa analysis, the cost of adaptation to handle more waist with the benefits avoided by adaptation. we found benefit cost ratios 4-1. showing the advantages of dealing with these problems now rather than later. so to summarize. so i've talked about my recent research to the cost of damages. the costs are underestimated. i did not include such items as human death and injury damage to the ecosystems incorrect costs such as lost employment and community displacement and

disruption. but even with those costs not included and looking -- we found that we were looking at many scenarios of climate change and sea level rise, a dacht tags paid off in terms of damage avoided. no adaptation, no action in all cases was the worst thing to do. to keep benefit cost ratios high would indicate that these actions are useful even if we didn't have climate change so-called no regret actions. so i want to say a couple more comments. first of all one of the first steps we can take to control these threats from climate change, control our emission of greenhouse gases. that will make a big difference whether we have a three feet rise or six feet or 10% increase in extreme rainfall or 30%, but because we cannot reverse climate change we cannot stop climate change. it will continue for centuries.

we have to adapt, be prepared and like everyone else here, i really support we ought to take planning now to start dealing with these threats otherwise we're going to be suffering large, human social and environmental consequences. thank you for your time. >> thank you for coming all the way from new hampshire to be with us today. tell those wildcats we said hello. ms. patton, your whole statement will be made part of the record. please proceed. >> thank you very much. >> make sure your mic's on. >> i think so. chairman carper, ranking member johnson. i'm lindene patton. chief financial officer for zurich. we provide coverage for customers in the 170 countries. we've been serving customers in the united states since 1912. we have over 8,000 employees nationwide. i would like to thank you for holding this timely hearing and i am pleased to share with the committee an insurance

industry's perspective and the economic importance of investing today and improving resilience. zurich observes that the u.s. is increasingly reliant on disaster recovery funds and it's under invested in resilience. disasters have increased to over 1,000 per annum. it's risen to $400 per household. that is more than a four fold increase over the past 30 years. in other words the resilience gap is large and growing. how large? in cummings projected that unfunded response costs for weather-related disasters would grow to more than 1 trillion u.s. dollars and might be as much as 5 point poip 7 trillion u.s. dollars.

taxpayers are bearing the burden of this. without decisive risk reduction actions, economically unsustainable, accruing unbudgeted disaster costs can be expected to continue on an upward trajectory. insurance provides risk assessment, risk management and price stabilization. a study by the bank of national resilience says they're less likely to suffer from macro economic disasters. one of the many crystal differences is that disaster recovery funds typically are delivered more slowly than insurance payments resulting in slower recovery and even longer term negative economic impacts but assuring resilience to

negative weather events requires being there before during and after the weather event. should resilience be prioritized? absolutely. it provides greater protection to the public in the face of increasing extreme weather events reduces human suffering and creates jobs and builds more resilience to housing and infrastructure. cure zurich understands that and acts accordingly. we are very proud of our efforts. hear are but a few examples. zurich has had the world economic forum the business couldn't knew the at this institute, the institute for building and home safety. over the years we have worked with progressive customers like marriott and verizon to

demonstrate by design and implement stations that are cost beneficial. zurich has committed to buy 1 million u.s. green bonds to focus on resilience at a scale that really matters. what action might the government take in the short term medium term and long term to close this resilience gap? develop a national priority plan for resilience investment. promote increased government and private bonds. he educate the society and promote and enforce stronger building codes. two actions might include use the language over this to improve as a template. federal governments invest annually in water, pork highway, transit and af reation

infrastructure. they might include commercial applications and most importantly higher community resilience ratings. how much should be budgeted? it might be logical to take a portion of the predictable budget things. funding resilience is the wiser investment investment. funding resilience provides a 4 to 1 return on your investment. our co-panelists have talked about something in conclusion, zurich believes we have an opportunity to improve the resilience of our nation's homes businesses and infrastructure. we believe we can save annually while providing citizens a great

deal. we look forward to working with the committee in any way we can help. >> great. great testimony. thank you very much for that. i'm going to slip out of the room and take a phone call. john is going to read off the questions for this panel. i'll be right back. thanks. >> thank you mr. chairman. ms. patton, i'd like to begin with you. you mentioned a growing resilience gap. how much of that gap, especially the growth of it, would you contribute to the fact that we tend to build in readvice beingy areas in this country? >> i'm not in a position to identify the percentage but it's significant. we have a history and there's a lot of data and research that we have a migration to coasts and locations that have limited water supplies. under all of those circumstances you put more assets in harm's

way so the suggestion is that at least that's a portion of the driver that the climate is changing. there a knows question. >> when society is subsidizing that, that increases that type of danger? >> there is research which i've cited which does demonstrate that. in fact, if there is an interference and a subsidy was basically providing information to an individual that moving to this location is cheap and if there is a disaster, it will be paid for. >> we have that interference? >> we do. >> what would cause that interference? >> there are a multitude of things. some is funding and some is appearance. there are programs that come in and provide subsidies. there are also circumstances

where there are perceptions and there was a study done by a federal task force after sandy looking into what people understood about their insurance. people didn't understand what was insured or not insured. their understanding was that federal disaster funds would be dlifrd kind of like insurance. >> they were correct weren't they. >> the reality is the priorities for federal disaster floodings is to get critical areas up and running. they are not a 100% substitute and i have cited research in my testimony that cites that and demp mon straits that demographics have the same. you can have longer term macro

economic impacts. >> it does -- as necessary as federal help is in those circumstances, it creates more hazard doesn't it? >> it is very clear that in under circumstances the federal government must respond under disaster. it's a political imperative a social imperative. >> but. >> there are ways to structure programs in terms of prioritizing spreading information. there are some risk base price signals that may be add justed. there are other suggestions that exist in terms of prioritizing infrom strurk tur development. >> to you think people billion 1 million, $2 million right on the beach if they had to pay the

full cost of their risk on thir insurance? >> i don't think i'm in a position to know that. >> you come from the insurance business. is it a fantasy to think that overtime we could prioritize the flood insurance program? >> i would have to think about that. let the market work. >> that is not happening right now at the national flood insurance program. >> there is a team. >> which is suspended. >> which are designed to allow that. >> again that's not a good thing in terms of reduction of that moral hazard. >> the position is -- >> and you're really creating incentive for risk management and risk mitigation and resiliency creation, correct? >> absolutely. i couldn't agree with you more. it's very important that the

risk-based price signal and the insurance functionality be permitted to make sure that risks can be assessed. they want to be informed what the actual functional cost is and they need to make co gent decisions on before they invest, how much they invest. >> we're talking about private individuals, previous property. that's who they purchased insurance for -- whether you're talking about local state or federal government and in general the federal government is primarily a self insurer. >> does that reduce -- does that reduce their incentive to mitigate risk in your opinion? >> it's their money. if they were not self-insurance would that help mitigate risk? >> the only thing i can point

you to is that there is a long-standing comptroller general's opinion which dates back to the 1700s which indicates that the federal government is supposed to be a self--insurer by rule and there are policy reasons for that but the functionality of private insurance, you're exactly correct, is to send a risk base signal to encourage people to control the costs over time. >> the insurance industry has a unique capacity to try that discipline. either of you two gentlemen want to comment on that line of questioning? >> i think i would just add that the problem that we're seeing are people are libertarians until they need help. we are trying to figure out ways in delaware, in one of the counties, where they don't have some of the more protective policies in place not to have state government be the back stop because they're knocking

private insurance and they're coming to us and saying, you have the strange issues and erosion issue. they're trying to find out whether it's a local issue or national. >> okay. dr. kirshen? >> i'm not an expert on insurance. i know if water rights go up, people start to conserve. i think it's very important we send the rights for climate change as well. i also want to say that i think, you know, the engineering and the science community and the social science community, we know how to do adaptations. it will give us the opportunity to work with stakeholders. >> again, thank you all for your testimony. thank you, mr. chairman. >> thank you. i just asked my staff to double check to see if when we pass the omnibus appropriation bill if there's a one year stay on the effective implementation of the flood insurance changes to the

laws. that was waters legislation. my understanding is there's a one year stay but i think it expires at the end of this fiscal year. there's a great opportunity for us to take some of what you said here today and to work with the administration who is not wild about flood insurance and especially on this committee and see if we can't make sure that we're properly aligning the incentives to incentive advise folks to do what they need to do so it doesn't all fall on taxpayers. tony pratt, collin o'mara referenced my name. tony, thank you so much for all of the good you do for the people of our state and the example that i think you help set for folks in other states as well. you said something, ms. patton, in your testimony. i think you mentioned some action that congress could take. i'm just

so conducive to the testimony? >> right now there is a significant disconnect it's not just for that but other appropriation bills where the design standard cannot keep up with the risk. we saw this frankly in delaware at the union river bridge where we built a beautiful new bridge $150 million but we weren't successful with working with the army corps and protection with the cost sharing. we're happy to pay our share of a system to protect that asset.

so making sure the block grants are the life blood of many municipalities in terms of delivering projects. and having that especially with the cost share having more accountability can save a lot of money in the long run. >> thank you. dr. kitchensh kirshen? >> i'm not going to say much because i'm not an expert. >> it never stops us from weighing in. >> my observations working with communities, there are many institutional barriers from adaptations and we have to address them. this is an example of some of them. >> thanks. this will be a next question for i think secretary o'mara and dr. kirshen. mitigation can as we know, be very cost effective in reducing

lives lost and damages caused by natural disasters. we've had a lot of success with mitigation in delaware in part because of the fellas that are sitting here in front of us today. i think we've done it with a relatively small investment saving our state a lot of money and i would just ask a question if we could, dr. kirshen, and secretary o'mara. based, dr. kirshen on your research, how beneficial is extreme weather mitigation especially long-term plan when it comes to saving money? >> well, i think as i said earlier, we're getting extraordinary cost benefit ratios. if you look at the benefits of adaptation versus doing nothing, benefit cost ratios of 4 up to 30 in some cases. so it's extremely beneficial to do this. and i think communities realize this. when i'm working with quite a few local communities in massachusetts and new hampshire on adaptation. they do get it because they're

in charge of infrastructure and they are looking for nech how to do this. we're giving them the data and they need people to help them interpret the data and also think about how to use the data in planning for climate change. the problem with climate change is the uncertainty. we're not exactly sure what the future climate is. we know how to deal with uncertainties with scenario analysis and other analytical technique. i think we have to provide support from the communities to do planning. it's relatively cheap compared to the huge cost if we don't do good planning thank you. >> secretary o'mara just to follow up on that based on your experiences, what needs to be done to encourage and support state and really local governments, too to support individuals and businesses to adopt mitigation measures such as adopting -- adapting adopting updated building codes to better address the threats of

extreme weather? >> i think there's kind of two pieces to the equation. one deals with what senator johnson was racing about the economics. making sure that the economics in action are very, very clear to folks and also kind of toughening up a little bit and making sure that if people don't take those actions, government does not come in and bail them out which is obviously the easier political outcome. if we're able to do those things you'll see behavior change quickly. money will drive a lot of these investments. i do think there are significant opportunities for the federal government to incent people whether that's earlier consideration whether it's competitive grants or having a slightly higher percentage for either percentage allocations for match or other types of federal systems, where if you've done the hard work it will saif the federal government money. we don't have claims that met the fema threshold after sandy.

rehobath was intact. we didn't receive any from hud because our systems were successful. we should be rewarded or incentive advised in some way and the other states should be penalized. i think aligning those incentives is some work that this committee could lead on and find incentives and drive great incentives. >> ms. patton, if i could, a question for you. with the insurance companies having a long history of risk management when it comes to extreme weather events are there ways to create more public/private partnerships to help share the knowledge between federal and state and local governments? >> i believe that there are, and i think it's very important to continue those and to take those exemplars that you have, which are ongoing and expand them. as i mentioned earlier in my testimony, i'm very excited about the resilient star pilot at dhs. it provides a framework --

>> so am i. let the record show, so am i. >> it provides a framework in which we can actually and we are collaborating in a public/private partnership. we are at the beginning of this pilot but i can see it very easily extended to the commercial and infrastructure context. when that happens and you can actually create a resilient community, the -- it would enable other private sector opportunities. other types of incentives may present themselves if you have a resilient community, it may be obvious that it might be a really good place to invest. it might be obvious that the risks where loans are placed under those circumstances are reduced. it's not just about insurance it's about the long-term functionality and economic resilience of that community to be able to survive and thrive even before, during and after extreme weather events. that is just one example. i think that to the extent that some of the other

recommendations of the panel can be followed through in terms of providing opportunities with infrastructure investment and matching funds, that will provide other opportunities for private sector to inject themselves into the process. >> one final question. i'm going to ask you to make real brief answers. the votes have gun. it's as begun. >> we're trying to reduce our deficit to 550 billion, but as a result son of my colleagues have been critical because they cost the federal government money, such as beach replenishment for coastal communities but other things as well. what are the counter arguments to those who say taking the steps needed to build resilience are really too costly and therefore, should not be taken? if you have any parting advice on us, how can we better plan for extreme weather events and

reduce financial risks to our government? we have to wrap it up fairly briefly. secretary o'mara would you close us out with that? >> i think we'll let the economics speak for themselves. if we can say an extra dollar will save you $5 or $10 on the fema budget, that's a compelling argument. i'll take a five to one return any day. the same thing can be said for any other type of infrastructure investment today. there is a huge opportunity right now because we do have data that we could collect fairly easily in communities that were well prepared before sandy and the ones not well prepared. we should be collecting that data as we speak to make sure we know the costs to the federal government for communities that weren't prepared. you have two communities, one with healthy dunes, one without healthy dunes. they got more money. we should quantify that. >> thanks. very briefly dr. kirshen? >> i agree with secretary o'mara but again, that said

an ounce of cure is worth a pound of -- ounce of prevention is worth a pound of cure. >> you've got it. >> i think that's the solution. >> thank you. ms. patton? >> i would also agree that economics do speak for themselves. i think it is not just about the expense, it's about the potential interruption to the grows doemestic product for the regions and about the potential for communities to no longer exist or be severely interrupted for not just weeks but years. it has both direct economic value but it also has social value in the short term and long term. >> let me conclude first of all, thank you. thank you all. you've got a lot going on in your lives. grateful that you took some time to spend some time this morning with us. the only thing going back to what i said as we begin this hearing, mike enzy, senator from

wyoming, one of my favorite colleagues, everybody loves him. 80-20 rule. how do you get a lot done focus on the 80% we agree set aside the 20%. there's a lot we agree on. this is a fairly controversial hearing. senator johnson came and stayed and he stayed a lot longer than he anticipated staying because he thought it was worthwhile. there's a great deal we can agree on and work on. so i just thank you for helping us to find that 80% find the middle, and we are going to have some more questions. a couple more questions that folks will ask of you. some senators who were not here will submit questions. i think you have about 15 days to do that. if you receive any of those questions, if you could respond promptly we'd be most grateful. with that, this hearing is adjourned. thank you so much.

>> we'll begin this hearing of the senate judiciary committee on the report of the privacy and civil liberties oversight board on reforms to section 215 telephone records program and the foreign intelligence surveillance act. appreciate you being here today, all five members of the board are here and most important, your extraordinarily impressive report, which is all the more so because of the less

than ideal conditions which you did it with very few staff and high time pressure. i am struck by the thoughtful analysis, which is exceptional exceptional in its quality but also exceptional in the fact this issue has received so little thoughtful analysis over the time this surveillance and intelligence gathering program has proceeded and of course, for years the program has been hidden from the public and the legal justification of it was not available to anyone. in fact, the legal justification was not done, and that is more shocking even than the hiding and secrecy involved in the program. since the program was made public we've seen legal justifications from the executive branch and opinions from the judiciary, but none of

the publicly available analysis has addressed all of the crucial questions that you discuss in your report. so i thank you for that contribution, among others. i am absolutely shocked and deeply disturbed that eight years after this metadata program, the bulk collection program was authorized, the courts have still not carefully and thoroughly worked through the issues that surround the program. in our american legal system we expect there will be such analysis such legal issues before the executive branch acts and here there currently was none. even the two members of your board, who descended from the legal analysis, acknowledged that the board has raised significant legal issues, which could divide reasonable people, reasonable lawyers. the american people essentially

deserve better, and that's one of the reasons that we're here today. they deserve better than to have the executive branch engaging in conduct that even its defenders say might be illegal. the second major achievement of this report is that it sheds light on the history of the bulk telephony metadata program. we learned from your report that the judge asked the phone records on potentially every american without so much of writing a written opinion, which is incredible. absolutely shocking. in 2006, judge howard issued an extensive order allowing the government to collect phone records of law-abiding americans with no known connection to any crime. telephone records on every american who were not even

suspected of committing any crime, and he chose not even to provide a sentence explaining his legal reasoning. that's all the more disturbing when you consider the legal context. in 2006, the attorney general was required by law to pass along to congress any major ruling any major ruling from the fisa court, the foreign intelligence surveillance act, only when they wrote an opinion. so when judge howard decided he wasn't going to write an opinion, this prevented congress from learning the legal basis for a massive change in the government's claim to surveillance authority , which is important and in fact essential component. there may be some americans who agree that the fisa courts should have an adversaryial process, but they would allow it only if the fisa court judge

asked for it. and yet it seemed that the court who signed off on the bulk data program didn't think that the issue warranted an opinion. so i'm not blaming judge howard for that omission. judges really aren't expected to decide what's important. in fact, often can't do so without a lawyer raising an issue and highlighting it and arguing it and saying it's crucial. all the more reason that the sdversarial process needs to have a constitutional opinion and the legal basis for this order was only not conveyed but the lack of an opinion prevented congress from learning about it. there are also reasons in your report to question the

effectiveness of the bulk metadata program, and in fact we've learned more recently that perhaps only 30% actually of the phone calls were actually -- were collected. only a proportion of the supposedly comprehensive collection of phone calls was actually absorbed or collected by the government, which undercuts and contradicts representations made to the courts in justification of the program itself. representations made by the president. are undercut by that potential fact. so it appears that the effectiveness of the program may be in question also, which is an issue raised in your report and again highly significant. these kinds of issues deserve to be aired and analyzed more effectively and comprehensively

than they have been, and one of the reasons we are having this hearing is to give you an opportunity to continue your conversation with the american public about these critical issues. i want to again thank you, not only on my behalf, but also for chairman leahy, who has provided a written statement. i'm not going to read it, but if there's no objection i'll ask that it be made part of this record, and now turn to the ranking member senator grassley. >> i have a statement i'm going to read. before do i that i want to say i have the same concerns that senator blumenthal just expressed, but also want to make it very clear that -- and if i didn't have those same concerns i wouldn't be upholding my oath to the constitution and the fourth amendment but also i think i would take into consideration a balance between our number one responsibility, the federal government, which is national security, and the requirements

of our civil liberties. first of all, thank you for joining us and thank you, mr. chairman, for holding this hearing, and i welcome the board members that are with us. the entire board. it's good that the committee has held many hearings on these surveillance authorities. the committee will undoubtedly hold more. the most important responsibility of the federal government is to protect national security while at the same time preserving our civil liberties. the n.s.a. continues to be of great concern to my constituents in iowa and obviously across the country. over the last few months i've grown more concerned about why the department of justice hasn't prosecuted any of the few n.s.a. employees who willfully abuse their surveillance authority. which do have examples of where it's been abused and refer to the justice department. i haven't had an answer yet. did i write a letter to the

attorney general about this back in october. still, no response. few weeks ago at a hearing i pressed the attorney general for an answer. he didn't have one. he committed to get me a response, but i'm still waiting. it's good that these abuses have occurred only on a few occasions but the american people need to know if the department has taken these referrals seriously. a month ago the president finally weighed in on these important surveillance reform matters. it was past time for our commander in chief to become engaged on this issue. after all, surveillance authorities are critical to our national security. some of the reforms in his speech concern me, like the idea that we would recognize privacy rights of potential foreign terrorists. i don't quite understand that. on the other hand, other reforms the president announced seem very promising. for example, to the extent it

doesn't compromise national security increased transparency can help to restore the public's confidence in our intelligence community. indeed not long after his speech, the administration announced new rules that will permit companies to be far more transparent with their customers about fisa court orders and directives. the president also announced reforms to the government's handling and the use of telephone metadata that it collects under 215. the government is now required to obtain a separate court order every time it seeks to assess or research metadata except in emergency situations. this is a significant additional safeguard against potential abuses of metadata. additionally the president changed to the program that the metadata be held by the telephone companies. he apparently believes this can be done without compromising

the program's operational value. there are many questions about whether such an arrangement is desirable or even possible, but the administration is currently exploring options implementing this change, and it's my understanding they're supposed to have a report ready by march 28. it was against this landscape that this board before us issued its report a few weeks ago. the report contains a number of recommendations that i'm interested in hearing more about. for example, many of the recommendations in the report concerns increased transparency. a very worthy goal. all but one was adopted unanimously by the board reporting today to us. over -- moreover, they are similar to the reforms that the president proposed. additionally, the report recommends that the fisa court be able to call upon a pool of advocates from outside the government. these advocates would provide an independent perspective but only in cases that the judge

decides presents novel or significant issues. this recommendation was also adopted unanimously. it's also similar to the president's proposal as well as the approach in the committee that passed out of our senate intelligence committee. the board's remaining conclusions, however, was that section 215 metadata program is illegal and should be terminated. of course, this recommendation received the most media attention. it was adopted only by a bear majority of the board before us on a 3-2 party line vote. the board's conclusions on this point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfully of section 215 program. for instance, the board's conclusion is contrary to the opinion of the president of the united states who, as you know, proudly says and legitimately so that he's a formal

constitutional law professor as well as even the department of justice taking that same position. it's contrary to the position of prior administrations that initiated the program. it's contrary to the administration of -- position of 15 fisa court judges. it's contrary to the opinion of two of three district court judges who do not serve on the fisa court but have nonetheless considered the issue. and of course, it is contrary to the opinion of two of the board's plebs. nevertheless, as we -- members. nevertheless, as we consider these reforms, i welcome of hearing a wide range of views, and i thank the board for tony blair contribution to public service on this very -- board for their contribution to public service on this very important issue. >> don't know if senator franken would like to say any remarks. >> i'll wait until the questioning. >> very good. thanks. i'd like to ask the panel to please rise and be sworn as is the custom of our committee.

do you affirm that the testimony that you're about to give is the truth, the whole truth and nothing but the truth, so help you god? thank you. i understand you have a brief opening statement but before you do let me introduce the panel, if i may. david medine, chairman of the pclb, has been the board's chairman since may of 2013. before becoming the chair, he worked as an attorney fellow at the securities and exchange commission and special counsel at the consumer financial protection bureau. he was previously a partner focusing on privacy and data security at wilmer hale, senior advisor to the white house economic council and associate director for financial practices, focusing on privacy issues at the federal trade commission. and also was professor at indiana university and george

washington university law school. he has a b.a. from hampshire college and j.a. from the university of chicago. rachel brand is chief counsel for regulatory litigation for the united states chamber of commerce. ms. brand has held a number of positions at the department of justice during the president george w. bush administration, including assistant attorney general and principal assistant deputy attorney general for regulatory policy officer. she worked in the white house counsel's office and clerk for justice anthony kennedy and justice charles freese of the supreme court. supreme judicial court of massachusetts. she's also practiced law at wilmer hale. she has a b.a. from the university of minnesota and a j.d. from the harvard law school. elisabeth collins cook is counsel in the regulatory

controversy and regulatory and government affairs department in the washington, d.c., office of wilmer hale. ms. cook previously served as the republican chief counsel on the supreme court nominations for the senate judiciary committee and assistant attorney general for legal policy at the department of justice at the end of the bush administration. she served as a number of the board of governance at the terrorism screening center and law clerk to justice laurence silverman of the united states court of appeals for the d.c. circuit and judge lee rosenthal for the southern district of texas. she holds a b.a. from the university of chicago and a j.d. from harvard law school. james dempsey is vice president of public policy at the center for democracy and technology, a nonprofit focused on privacy

surveillance and other internet issues. mr. dempsey previously served as deputy director of the nonprofit center for national security studies and special counsel to the national security archive. prior to that, he was assistant counsel to the house judiciary committee subcommittee on civil and constitutional rights and an associate at arnold and porter. he, too, was a law clerk. in his instance for judge robert broucher of the massachusetts supreme judicial court. he served on -- as a member of several bodies addressing these issues, including the industry advisory board for the national counterterrorism center and the transportation security administration scurep flight working group, among others. he has a b.a. from yale university and a j.d. from harvard law school. and finally but certainly not

least, i'm particularly proud and pleased to welcome a native of connecticut judge wald, who has served with extraordinary distinction for 20 years on the united states court of appeals for the district of columbia, including five years as chief judge. she has also continued her public service as a judge on the international criminal tribunal for the former yugoslavia and a member of the president's commission on intelligence capabilities of the united states regarding weapons of mass destruction. she served in president carter's administration as the assistant attorney general for legislative affairs in the department of justice. she also previously worked as an attorney at the mental health law project, the center for law and social policy, the neighborhood legal services program the office of criminal justice at the department of justice and co-director of the ford foundation, drug abuse research project.

judge wald clerked for judge jerome frank of the united states court of appeals for the second circuit. she received her b.a. from connecticut college for women and her j.d. from yale law school. i might just say she's been inducted in the connecticut women's hall of fame. we welcome all of you. we thank you for being here. i understand you have a brief introductory statement that will be submitted by the chairman and please proceed. thank you. >> on behalf of my fellow privacy and civil liberties oversight committee, thank you, mr. chairman, senator grassley. this is an independent executive branch agency tasked with ensuring that our nation's counterterrorism efforts are balanced with the need to protect the privacy and civil liberties. before beginning my testimony, i want to state our respect and admiration for the men and women in the intelligence community who work tirelessly to protect this country while maintaining our values.

we have the highest regard for them. last june at the request of members of congress and the president, our board initiated a study of the bulk telephone records program conducted by the national security agency under section 215 of the u.s.a. patriot act. the study included classified briefings with officials from the n.s.a., the department of justice, the f.b.i. and the c.i.a. board members also met with white house staff, former presiding judge for the fisa court, academics private and civil liberties advocates technology and communications companies and trade associations. in addition, we received a demonstration of the operation and capabilities at the n.s.a. the board has been provided access to classified opinions by the fisa court and classified documents relating to the operation and effectiveness of the program. at every step of the way, the board has received the full cooperation of the intelligence agencies. consistent with our statutory mandate to operate publicly,

were possible, the board held two public forums and solicited public comments. in our january 23 report the board concluded that the section 215 bulk telephone program lacked viable need, implicates constitutional concerns under the first and fourth amendments, raises serious threats to privacy and civil liberties as a policy matter and is shown limited value. as a result, the board recommends that the government end the program. the majority concluded that particular live telephone record searches can be used with existing authority. two took that it's a reasonable reading, made in good faith by numerous officials in two administrations of different parties and constitutes a good faith effort to subject a potentially controversial program to both judicial and legislative oversight. the board unanimously recommends that the government immediately implement several additional privacy safeguards to mitigate the privacy impact of the present section 215

program. specifically the government should reduce the retention period for the bulk program from five years to three years, reduce the number of hops used in contact change from three to two, submit the n.s.a.'s reasonable sprigs determinations to the fisa court for review after they've been approved by the n.s.a. and use to query the database and have a r.a.z. determination to otherwise analyze the corporate store which results querys -- queries. the fisa court modified its primary order to require primary judicial approval before the database is queried. and consistent with the board's recommendations, the court reduced the permissible queries from three to two hops. the board's report also addressed the operation of the fisa court. the court's procedures have raised concerns it does not take adequate account of positions other than those of the government. the board believes that some reforms are appropriate that

would help bolster public confidence and the operation of the court, including creation of a panel of private attorneys or special advocates who can be brought into cases involving novel and significant issues by fisa court judges. development of a process facilitating aplate review of fisa court decisions and increased technical assistance and legal input from outside parties. we believe that our proposal successfully ensures the ability of the court to hear opposing views while not disrupting the court's operations or about the role of advocate. the board believes to the maximum extent possible consistent with national security, declassification of the fisa court with minimal reductions should be made publicly available. finally, the board believes that the scope of surveillance authorities affecting americans should be public while sensitive operational details regarding the conduct of government surveillance programs remain classified. two board members declined to join this recommendation. all of the board's recommendations regarding the operations of fisa court and

six of the seven regarding transparency are unanimous. the board thanks you for the opportunity to testify before the senate judiciary committee today regarding our report. we'd be happy to answer any questions any committee members may have. >> thank you. i'm happy to give other members of the panel an opportunity to speak separately by way of introduction, but if not, why don't i just begin with some questions. let me ask you as the chairman, mr. medine, would the apparent revelation that perhaps only a proportion of this telephone data was aptly collected, changed for your report? >> i don't think we can address in public session the pros and cons of that session but would be happy to meet in private session. even if the reports were true, it still means that hundreds of millions of telephone records are being collected, and so at least it's my view it would not change the recommendations of

the board. >> would it undercut the accuracy of representations made by the united states government to the courts to justify this program? >> again i don't want to comment on that. some of these matters remain classified. i think there's more to be said on that. i don't think it can be said in public session. >> let me put it different. wouldn't you agree with me that the united states government has misled the courts, whether purposely or inadvertently in justifying this program on the basis that all telephone records are collected? >> again i'm not prepared to confirm any of the reports that have been made. so i don't want to draw any conclusions about representations that were made in any court proceedings. >> let me then just move on to a separate line of questioning. is it fair to say from your report that the present bulk metadata collection program is unjustifiable under existing law?

>> that's the conclusion of the majority of the board, yes. >> it is illegal? >> yes. it's not consistent with section 215 authority. >> so in order to continue it if the congress chooses to do so, we would have to change the statute? >> that's the majority's view. although, again, the majority would also counsel that even if you change the statute and resolve the statutory issues, we still believe there are serious constitutional issues and very serious policy issues relating balancing national security with privacy and civil liberties. given there are alternative legal authorities to be used, the majority' view is to abandon 215 and use legal authorities. >> so in addition scrap 215 and rely on alternative authority? >> exactly yes. >> has the panel reached any conclusion in terms of timing as to whether our consideration and perhaps revision of 215 or other authorities should await

resolution by the united states supreme court of some of these issues that may come before it in cases that are now in the lower courts? >> the panel hasn't addressed that question specifically. given both the legal and policy concerns, i think the interest would be to move forward and try to resolve those issues sooner rather than later. >> because we have no assurance knowing the united states supreme court, whether it will in fact address those issues considered relevant for the congress to act, that's up to the court to do? >> yes. we only have the district court decisions now and have to work its way through the system. at least the majority believe that action should be taken on the program sooner rather than later. >> there's no telling whether or not the united states supreme court will resolve those critical issues and when it will do so? >> or how it will do so as well in terms of providing guidance. >> let me ask you and judge

wald. on the issue of the adversarial process, i understand that the conclusion of the panel was that the advocate -- i've called it a constitutional advocate -- should be enlisted only when the court thought there was a novel or important issue. my view is that the constitutional advocate should make that decision and be involved whenever she thought an important novel or issue was raised by a warrant. not necessarily or usually before the warrant was issued so as to not delay the process but at least afterwards and now it gets to what happens in the ordinary criminal process where there is the opportunity to challenge the legality of a

search or surveillance after the fact and the evidence can be excluded. isn't it often the case, let me ask you, judge wald, that judge sees important or novel issues without counsel saying in effect this issue is critical, it's decisive, it's unresolved by other courts or resolved badly, don't judges benefit by hearing that argument to be made by counsel? >> yes senator they certainly do. because i was forewarned that this might be a question, i did a very brief look at some of my own experience 20 years on the d.c. circuit, and i looked at only one year's opinions which i was involved in. there were 33 opinions.

particularly in the 1980's, and seven times out of the 33 opinions which i wrote that year, and i was only one of 10 judges. i don't know what the record would be of the other nine judges, but seven of those were sent back to the district court because the district court had not discussed what we considered to be an important legal matter. and i would say that that number might even be low because, as you well know, there is a doctrine in the regular courts that if you didn't raise it down below you can't raise it on appeal. so the questions involved tended to be ones that were of jurisdictional basis. but, yes, it was not totally infrequent occasion. also pointing out the obvious thing that all of our cases did

have counsel on both sides, and even with that kind of protection, i would say especially in the technological -- technologically regulatory complex cases which had a lot of different issues involving technology i don't want to take up the committee's time, but i just couldn't help copying one sentence from one of these monstrous e.p.a. cases in which the court of appeals said this is the first challenge to the new source performance standards since the passage of the 1977 amendments. therefore, the court was surprised that neither party raised during the discussion below the appropriate standard of law in that discussion. they did not even mention the fact of a new major legislative

effort. so even with the best kind of counsel it can happen. >> issues spotting is a challenging business. >> yes. >> even with counsel and without it reliance on a judge is often hazardous. i've never been a judge but i've litigated for a number of years and i've always been astonished at how cases that i've tried may raise issues on appeal that i thought were insignificant and sometimes decided by a ruling without an opinion but i think that the reason i propose a constitutional advocate be involved in every decision that she or he thought was significant was to give the court the benefit of that kind of additional insight and guidance and perspective. i'm going to turn to my

colleague, senator grassley, and then to senator franken for his questions. >> thank you. i'm going to ask ms. brand a question. but, ms. cook, if you want to follow-up with anything you're welcome to do that. ms. brand, you and ms. cook disagreed with the board's analysis and conclusion in a few key areas including the conclusion that the bulk metadata program isn't authorized under section 215. question, can you explain why you disagree with the board's analysis and conclusion on this point and why you believe that the program is lawful? >> sure. thank you, senator grassley. you know, i think the statutory question is difficult. it's not a simple question. certainly one which reasonable people can differ but at the end of the day i would agree with every single federal judge who has considered the statutory question all of whom have upheld the program under the statute. there's a lot to say about the board's 40 to 50-page legal analysis on the subject, but just one thing that concerns me

about their analysis. it seems to disregard the difference between national security investigations and criminal investigations. and one example of that is in the board's analysis of whether the relevance standard in the statute is met. part of that discussion the board says grand jury subpoena, as you know, also has a relevant standard, has never been used to collect the volume of data that's collected under the 215 program. and that's just not the right question to ask because relevance is contextual. you have to ask, relevant to what? and information has to be relevant to a criminal investigation which is retrospectively and comparatively narrow. in the fisa context under section 215 information has to be relevant ongoing to a fisa investigation. that's a long-term proactive preventive intelligence investigation into an entire terrorist organization. and so it shouldn't be surprising that a broader volume of data would be velarde vant to that that would be relevant to your typical criminal investigation. >> you and ms. cook also

disagreed with the board's conclusion that the program should be shut down as a policy matter. the board found that the program's risks outweighed its benefits, but in your written statement you appeared to challenge both sides of that equation. you wrote that the program's actual inclusion on prifere is i is small and that it benefits -- its benefits can be be measured solely on the terrorist plots it disrupted. question can you explain in more detail why you disagree with the board's policy decision and conclusion that the program should be terminated and why you believe that it's worth preserving? >> sure. i mean, the question boils down to whether the privacy comblicompations of the program outweighs the national security benefits and i board understates the benefits. on the privacy side, it's useful to stop for a minute and think about what the program is it's not collection of content of any communication. the government can't listen to you on phone calls with this program. it's literally a system -- series of phone numbers and the

times they called other phone numbers with no names or any other personally identifiable information attached to them. it's just a bunch of numbers. the uses of it is limited. the government can't look at the information on the database unless they have a particular phone number that they have evidence that's connected to terrorism and they can look in the data to see which phone numbers talk to that phone numbers. again, no names. that exercising connecting phone numbers to phone numbers is what this program is about. in addition, you have the numerous levels of oversight of the program, the use of the program is incredibly strictly limited. if you take all of that plus the additional restrictions that we recommend be impose, i any the intrusion on privacy is very low. on and looking at whether this program is -- you have to look longer term into whether the next time there's a large-scale terrorist threat against the united states, could this program prevent it and i think the answer is clearly yes. there's a potential for that. you also have to remember that

preventing a terrorist attack is not the only measure of value, because it's also valuable when the government can determine there is no terrorist attack. if you have, for example a situation where there was evidence of a terrorist plot abroad and the government is trying to figure out if there is a domestic threat. if the government can determine there is no domestic threat then they might not have to take an action like grounding all the airplanes in the united states. and that's also valuable, i think. >> ok. ms. cook, the board concluded unanimously that the balk metadata program is constitutional but neither you nor ms. brand joined the extended analysis contained in the report. did you find this a difficult or close constitutional question, number one, and number two could you explain why you didn't join the analysis of the three other members of the board? >> thank you for the opportunity to answer that question. as to the fourth amendment, the board was unanimous that the program does not violate the

fourth amendment. smith vs. maryland is the law of the land and the board was unanimous that the government is entitled to rely on that precedent. i declined to join the fourth amendment section as it was primarily an extended discussion of potential evolution in fourth amendment injuries prudence. i did -- jurisprudence. i did not find the prognostications particularly as depended very heavily on a sole concurrence in the jones decision. don't think that's an indicator necessarily of where the supreme court is going. as to the first amendment, i could not join that analysis as the first amendment analysis was of programs that simply do not exist. as ms. brand has explained, the program here is simply about numbers calling numbers. it's not associated with

individuals' information. the majority, nonetheless, talks about the n.s.a. painting complete pictures of every americans' associational activities. that is not the program we were analyzing, i could not join the first amendment analysis. >> mr. medine, i'll ask you my last question. the board's report recommends the creation and an advocate to participate in the fisa court process. the report recommends, one, that the advocate should come from a pool of attorneys outside the government two, that the fisa court should retain control over whether to call upon the advocate in a matter and three, the advocate should not participate in or review all applications filed by the government. two questions together. could you walk through why the board felt strongly about each of these issues? and second, did the board meet with any judicial representatives or did their

views play a role in shaping the board's recommendations? >> thank you, senator grassley for the opportunity to respond. just answering your last point first, the board held two public workshops, as i mentioned earlier and we took testimony from two fisa judges, judge robertson and judge karr and also judge beats. they helped form our views of the questions you raised. first, having advocacy outside the government. we thought they need to be independent and bring fresh views and seating them in the executive branch where the government is questioning the fisa court. we thought it made sense for them not to be made part of the executive branch. and having them part to be -- to be part of the judicial branch.

we thought a fresh perspective. have a panel of outside private lawyers chosen by the chief judge of the court with appropriate clearance or able to get clearance and work space to address these important questions in appropriate cases which i guess turns to the second question which is regard giving the judge control over cases. certainly in everyday routine cases there was not a need for special advocate. the judges have testified to us that they are very capable in handling much the way they handle search warrants, ex- parte, involving novel and technical issues where the judge's role takes place. so we wanted to give the judges' authority to invite the special advocates in where the judge deemed appropriate. we do want a reporting mechanism to make sure that the judges exercise that authority appropriately and so since the government is supposed to designate those significant cases in advance, we would like the court to report on how many

cases were designated in that fashion and those and in such cases how much was a special advocate appointed. likewise, there are cases on their face appear to be technical or novel issues but the judge knows they raise important questions and we want the judge to be free, even in those cases, to expand the pool and also discretion as to when it's appropriate to bring someone in. and again i think that answers your last question. not all applications because probablely a significant majority of the -- probably a significant majority of the role is routine. significant programatic approvals where the judge is almost acting like an administrative agency, the judges themselves said they would value an outside opinion being brought in. >> thank you, mr. chairman. thank you, panel. >> thank you, senator grassley. senator franken. >> thank you, mr. chairman. and i'd like to thank the oversight board for its work.

all my questions are basically on transparency. on page 190 of your report you say that, "transparency is one of the foundations of democratic governance." and i couldn't agree more. the american people hasn't given the american people even a rough estimate of how many people have had their information collected under section 215 or how many numbers have been collected. under current law the government doesn't have to. i have a bipartisan bill that would fix this. the surveillance transparency act. it would mean that we -- the government would have to say how many numbers, how many people's numbers have been collected and how much of -- how many have been queried how many people have been queried. recommendation 9 of your report

echos my bill. it says the government should give the american people more detailed report about section 215. what specific information should be included in these public reports, do you think? do you think this reporting should be required by law? anyone can take this. mr. dempsey mr. medine. >> senator i think the recent -- the recent, you know agreement by the justice department to allow companies to disclose more information didn't actually address sort of balk collection question. assuming i understand your question correctly, the -- sort of bulk collection question.

assuming i understand your question correctly, a million of the customers are affected, then that basically says there's a balk collection -- bulk collection against this entity and i believe that is sensitive information. i think a better way to address the -- >> wait a minute. when you say the entity, you mean the company? >> yeah. >> ok. but that's sensitive information in the sense, first of all, the companies would like to be able to say that. they would like to be more transparent. they've endorsed my bill. they support my bill. >> honestly, i think there may be a split between what the telephone companies want to do and what the internet companies would want to do. i'm not sure about that.

i do see -- i see a legitimate security concern about naming or identifying or singling out -- >> but you don't have to single out. the government can say -- all it can say -- it just say how many numbers are caught up in the bulk collection. it isn't signaling out a phone company. it isn't sing naling out -- -- singling out -- >> i think the best question on the bulk thing is to have a statute that either authorizes bulk collection or doesn't authorize bulk collection. the fundamental conclusion of the majority was the statute, as you read it, doesn't read like a bulk collection statute. and if we're going to authorize bulk collection, then we should have a statute, in my view,

designed for that purpose and explicitly setting out the parameters of what a bulk collection program would look like. to me that kind of legislative transparency is honestly more important than sort of operational transparency side. and here we're only -- i think we're only talking about the bulk collection which, again to my mind presents sort of a unique question about what the government says about when it's doing it. >> ok. let me talk to mr. medine. thank you. i'm asking what the government reporting should be. assuming that we keep the bulk collection i'm not necessarily assuming, but if we do to me it makes sense that the government says, how many numbers have been collected and

how many have been queried, what is your opinion on that, your thoughts? >> it has transparency of the government under programs authorized by congress. when you get down to the details of how many people's information is gathered, that's not always an easy thing to determine. i could have multiple phone numbers. so calculating how many -- >> well, you could say how many numbers have been caught up right? >> yeah. >> that's easy to do. >> i think the tradeoff in this program by program some cases there are national security concerns. if we reveal we're collecting a certain amount of information under a particular program we may have tipped off to potential terrorists how to not communicate under that program anymore because now the government is collecting. i think there is a balance to be struck. the government is just negotiated an agreement. >> can't you put a rough estimate on how am -- i mean,

if you say you know, this many numbers we're collecting data on in our bulk collection and americans -- my feeling is this. americans basically distrust executive power and if they are not given information to make a decision about themselves about the legitimatey of things, then i assume that the power is being abused. and to me, if -- it would make -- i don't think you'd be giving anything away if you said this many millions of numbers are having their -- or tens of millions or -- are having their numbers, data collected about them and this many thousands are being queried, do you really think that -- >> i think under some circumstances it could be and i think the recent -- >> give me a circumstance. >> well, if you have a

collection of some program of -- on the internet and we review -- >> i'm talking about the -- >> phone records? >> yeah. i'm talking about the bulk data. >> if we reveal how many phone records we're collecting it would indicate moum we're not collecting for instance, and that may tip peoples off from, say, methods of communication. >> you say we're collecting information on 80 million numbers, does that tell you anything about what we're not collecting? >> it might. >> really? >> depends on the number of companies offering those services and that number of customers they have. but we think there's -- transparency was clearly important. it was major part of our report. fisa court decisions should be made public. the government should reveal its surveillance efforts, and the laws that congress pass should clearly reveal the authorities under which those programs operate. which think there is some potentialal national security concerns. and say, for instance, not allow reporting for two years

after a new program is instituted might provide some guidance on how to balance those important -- both important concerns of transparency and national security. >> ok. hopefully we have a second round. thank you. sorry. i'm over my time. >> thank you, senator franken. we will have a second round assuming we can do it before the votes occur at 11:30. senator hatch. >> thank you, mr. chairman. welcome to all of you. good to see you all again. any of you could answer this question. i want to thank you for your board for contributing to this report. i'd like to start with an issue that received less attention than the n.s.a. surveillance program and that is the foreign intelligence surveillance act -- foreign intelligence surveillance court or the fisc. and they take full advantage from outside parties such as properly cleared outside lawyers. the court can do that now, in my opinion without any new

legislative authority. does the court take advantage of that assistance? any of you? >> i think the courts certainly have access to the government's technology experts in gathering information. beyond that, i can't really say what the court's done. >> anybody else? yes, judge wald. >> the former and current judges of the fisa court that we did talk to we had one judge tell us that he didn't think it was clear to all the judges how -- or to what extent they could take advantage of outside help. i believe few instances there was one in the review court of the fisc court and there's been a more recent situation in which they have allowed outside group that has petitioned to file a written presentation,

but it was not clear. and we know of -- i know of no examples where they did take advantage of outside technical -- >> well, the board unanimously recommended some reforms to make the work of the fisa court more transparent. i am skeptical however, about the recommendation that the scope of surveillance authority should be made public. the board was divided on that issue, as i recall, and i'm concerned that publicly outlining surveillance collection methods may compromise the investigative techniques employed by intelligence and law enforcement communities and pose a risk to national security. yesterday, the director of national intelligence issued, pursuant to presidential policy directive 28, the list of permissible uses of intelligence collected in bulk. now, it seems to me making public the purposes for which the government uses intelligence rather than the

methods it uses to collect data intelligence strikes a better balance. i'd like your comment. perhaps from someone on both sides of the issue if you could. >> i can start by explaining why i did not sign onto the 12th recommendation, which i think is what you're referring to. i agree with the majority in principle, but where programs can be or the outline of programs or the purposes of the programs can be revealed, they should be. but there's an important caveat to that which is consistent with the national security and i don't think that a program's legality depends on whether it's been disclosed to the public. i was concerned that that is what the board's recommendation implied. i think in our democracy where we rely on committees like this and on the intelligence committees to do oversight, there's necessarily going to be some things that occur in private and that's permissible. >> ok. >> i also would say i think

it's difficult to draw conclusions about what can safely be disclosed publicly from the section 215 disclosures given that they followed the wholesale leak of the program. so i think we need to address this prospectively and taking into serious account what the potential damage could be from disclosure of previously classified programs. >> ok. i'm happy to welcome you all here again. judge wald you and i have -- >> i think we go back 30 years. >> i think we do. just happy to have all of you here. >> i was just going to -- >> go ahead. >> on the transparency, we -- our recommendation -- the majority's recommendation i think was fully cognizant of the fact that we in no way

wanted the methods, operational or even the existence of a particular operation to be automatically disclosed. we did have testimony actually from a former ranking minority -- ranking majority, minority, member of the house intelligence committee that the so-called framework and purpose of many of the programs could be disclosed by carefully drawing these lines. . let me give an example. we are just about to begin or have begun our report on section 702 of the fisa act which deals with the collection of communications one side of which may be in the u.s. and one side of which is -- and that

amendment which allows this program back in 2008, i believe it was, was openly debated before this body and before other bodies. we have just begun the investigation. i'm not about to try to preview any of our conclusions, but i will say this that the fact that how the program would operate in terms of the courts approving a target or minimumization and what kinds of categories of material could be put in the targeting, many of these things are right in the statute or in the legislative history in the reports that accompany it. my belief is that, again we have only begun our investigation, but that the government itself has said that the 702 program has been very very valuable to

it, and has said certain ripives of the government much more valuable actually -- representatives of the government much more valuable actually -- >> let me just mention this. it has been suggested that you believe the metta data program -- metadata program might be illegal. now, is that a fair characterization of your position? each of you can speak. >> no. >> no. >> why not? >> i was explaining earlier to senator grassley some of my reasons for it thinking that the statute's language can support the program. i think what people are reading too much into my statement that reasonable lawyers can differ on this. it's not the clear-cut of questions, but at the end of the day i think the program is legal. that's my opinion. >> similarly i believe that the program is authorized.

a concern was noted with the majority's approach to relevance, i think there are a number of concerns that i have with the majority's legal analysis. for example the board has concluded that section 215 prohibits providers from producing documents to the n.s.a. instead of the f.b.i. sounds like a technical issue, but the board has concluded on that basis that the section 215 program is unlawful. if you read section 215 where it talks about production of tangible things, there is no requirement whatsoever that it be made to the f.b.i. the majority has, instead, cobbled together this prohibition and rested its legal analysis on this prohibition that does not appear on the face of the statute. >> if i could just ask one other question because i'm going to have to leave. let me just shift to the n.s.a.

television -- telephone metadata program, which received most of the attention in these hearings and in the media. ms. brand, it's my understanding that the board is unanimous that the metadata program is constitutional, but divided on whether it is authorized by statute. is that a fair characterization? >> that's correct. >> in addition to the board of substantive conclusion about whether the patriot act authorizes the metadata program, i wonder whether the board should have delved into that issue at all. ms. brand, please summarize why you think the board should not have ventured into that area. >> thank you, senator hatch. i would be happy to. a board like ours which performs primarily an advisory function and is not a court, does not have to address every legal argument that's available, has to pick and choose and consider the ramifications of what it decides to address. i think frankly on the legal question here, the statutory

question, it's not clear to me what -- it's not as we are addressing this as a matter of first impression. this program has been operating for years. it's been the subject of numerous judicial opinions. the legality of it will ultimately be resolved in cases currently pending in the courts. but more importantly i think where the board concluded also that there's a policy reason for shutting down the program, it just struck me as gratuitous and unnecessary to also say the program is illegal, because that has a very demoralizing and negative effect on the intelligence community. you want your intelligence agencies to aggressively protect the national security within the bounds of the law. you don't want them to be timid and be scared of the rug being pulled out from under them by being second-guessed years later when they did everything right by going to the court and operating under what they believe to be a legal program and so forth. i just thought it was a mistake to address the legality. >> senator, may i speak to that point just briefly. >> with the chairman's

permission, yes. >> senator when i first heard about this program and the fact that it was authorized by the court, i sort of felt, ok. it must be lawful, we'll look at it. maybe we'll find some additional tweaks that we can make to it and that will be it if it's been authorized by the court. that's the end of the story. and the more we looked at it, the more i came to the conclusion that a majority of the board came to the conclusion that the program just does not fit within the statute. that it was shoehorned into this statute. and i think nobody, with all respect to both the executive branch officials and the judicial officials, nobody looked at the statute as carefully as we did. and i think at the end of the day if we had come forward and

opined on some balancing task or some other aspect and hadn't looked at the statute carefully people would have criticized us, you didn't read the statute. so we -- i came to this conclusion slowly. i came to it a little bit to my own surprise but as you read the statute the words just don't add up for this program. on the constitutional point i want to be clear the board's majority report says under application of existing case law. smith vs. maryland and the other third party record cases, if those were to be applied to this program, then you would conclude zero constitutional privacy interest in the data therefore not unconstitutional.

the problem is there is no case ever addressing the program -- a program of this scope until the two most recent district court cases. there is no supreme court case that ever applied the smith vs. maryland doctrine, transactional records doctrine to such an extensive program. nobody knows. the bottom line is nobody knows what the supreme court would say when confronted with such an extensive program and an ongoing program of this kind. that's the bottom line actually, i believe. >> thank you. just ask ms. cook, welcome back to the committee. we have missed you. do you agree with ms. brand that the board should have stayed away from the issue of legality? and stuck to the policy questions regarding the n.s.a.

metadata program? >> i think the decision to spend such an amount of time and -- >> as you know more than a dozen federal judges most on the foreign intelligence surveillance court and u.s. district court concluded that the patriot act does provide authority for the metadata program. the president's review group who appeared before this committee came to that conclusion, and the attorney general who also was here just last month strongly holds that position. the board was split 3-2 on this. i just wanted to know why was the majority wrong on this issue? >> well, i -- >> in your view? >> i think t's twostions >> i think there's two questions there. first, whether we should have engaged in such an extensive legal analysis. as you've noted, this program subject to extensive judicial oversight and it's currently subject to ongoing litigation and three district courts.

we are a board of extraordinarily limited resources, particularly at the time we were considering this. the decision to do this both statutory analysis and also a fourth amendment analysis that really was prospect of only had costs we have not meaningfully begun our view of the section 702 program, nor have we begun to address any of the other priorities we have identified since the inception of our board. asked to the question of whether the legal analysis was incorrect, we discussed the relevance issue. we've discussed the majority's view that the records could not be produced directly to the nsa both of which i disagree with the majority's analysis. and i would also disagree with the majority's analysis on the expert issue. as you're aware from 2001 one

of the primary purposes of the amendment in 2001 the section 215 was to eliminate any notion that section 215 could be used for some types of records but not for other types of records. the majority and the legislative language uses the term, any tangible things. the majority nonetheless imports from a completely different title of the code a modifier of the term any. i could not join that type of analysis. i would also say that it's a pleasure to be back to the committee today. >> thank you, senator hatch. >> could i indulge upon a 30 relationship to address very briefly? >> assured. >> a few of the points spent i've watched you all of that time. >> it's been a be a mutual watch. >> i know. >> i have something i want to

point out, that are governing statute gives us or tells us to, it says, the board shall continually review actions by the executive branch related to efforts to protect the nation from terrorism to determine whether such actions are consistent with the governing laws. i think part of our mandate has been to look at the consistency of the statute with the laws. i would also point out that we've had requests from a number of senators and a number of men at -- members of the house to look at 215 and 702 and each of the letters it was mentioned that we should look at the statutory basis. the other point which i think is certainly worth thinking about is rachel brand's concern i think a very legitimately motivated concern that the few

say that the nsa people, whom we were all impressed with the good faith and their diligence, if we say that they were operating under a statute which didn't give them the authority to do what they are, this could be somewhat more row constructive. i only wish to point out again drawing upon my 20 years is that these, in which i would say the average the average percentage of time for which an appellate court or somebody says that the lower court, or the agency primarily the agencies in our cases that the agencies have operated outside the mandate of the statute were numerous. and i think it was never suggested that we were setting these were bad people or that they had done something that was

wrong. it was legal interpretations or difficult and public legislation, and the fact that another body may disagree with the agencies take something which i think these dedicated public servants are used to and that would be very surprised if it really decreased their sense of loyalty and dedication. >> senator whitehouse. >> thank you, chairman. let me just ask a timing question first. when did the exercise that led to the report that we have in front of us began? >> it began in june of last year spent after the disclosures? >> yes. after the disclosures but a number of members of congress and the president asked us to conduct a study of the 215 program and we embarked on an almost immediately. >> you were aware of the 215 program at the time?

>> prior to the unauthorized disclosures? i we joined the board in late may spent was the board of where before and? >> as i recall senator whitehouse we learned of the program shortly before that. i can give you an exact date but i would put it as a month or several weeks before. >> why do you suppose that is essential to the authority to continually review all of these programs? why was it that you are not aware of this until just shortly before the? >> go ahead. >> our agency consists, before mr. medine was confirmed, our agency consisted of four part-time members who would work on pclob what about one day a week with no staff. so we were struggling merely to get started up so we're beginning to learn about programs, but we were nowhere near i think the volume of

intake that we'll be at any future. i think that was part of it. >> so as far as you're concerned nothing was withheld from you. it was just they didn't have the aperture to grind through all the different programs speeded literally, senator. we had a briefing scheduled on 215 before the snowden leaks and literally the person was hit by a bus the weekend before he was due to brief us and had to cancel the briefing. he was not hit by a bus. he was in a car accident. >> we have seen no indication there was an effort to withhold information about this program either prior to the disclosures or subsequent to the disclosure. >> i think we learned -- >> the gap is actually on your end in terms of having the capacity to look into the breast of various programs. >> i think i would just add i think that during this fairly tumultuous year in which the four of us with no staff went

racing around trying to learn as much as we could about the variety, wide variety of programs by many different agencies, not just nsa. the one question, or the one thing i learnt most was that you have to know how to ask the right questions. if you ask the right questions, the information is forthcoming. we had no incidents what they said we we will tell you, or we absolutely refuse. you do have to know how to ask a second round of questions, so we're just getting i think to that point of sophistication. >> and you went into a operation the body when what they? >> we got, sometime in august we were confirmed in the prior

august. >> august 2012. >> and shortly thereafter we were sworn in. >> there is an idiosyncrasy. only the four part-time members were confirmed in august of 2012. only the chairman has the statutory authorization to hire staff or and executive director. and mr. medine was not confirmed until may of 2013. so we did not actually have the capacity, the statutory capacity to our staff or an executive director, to say nothing of our attempts to find office space internets, everything that needs to be done for a fledgling agency. >> so that takes me to the question of independent advocate who could appear in the foreign intelligence court representing a public interest. .. good

idea. when you get into the details of how that individual gets managed and supervised, i get more anxious. i think if the person is an appointee of the chief judge of the court or chief justice of the united states, they risk becoming the pet lawyer of that individual. i think if the court can call on them or not at its discretion there's the risk that they get completely marginalized when they may have something useful to say. if they are not supervised by somebody, there's the risk that you just created a sinny cure -- syncicur for a small group of individuals ans lo as