collection of intelligence information that had been ordered following the 9-11 attacks. however some gaping holes were left in what was required to protect the privacy of united states citizens. americans have a chance to field as well as be free and secure in the persons belonging in activities from unwarranted government intrusion and not concerned that they don't fully meet the standard. the fisa surveillance act was passed in 1978. to curb abuses occurring in the use of intelligence, foreign and domestic. it was not passed for the purpose of excluding all foreign intelligence from the u.s., but to regulate and separate foreign and domestic intelligence collection. collection of foreign intelligence requires that there is a collection of foreign intelligence that requires merely that there is probable cause to believe that an actor

is an agent of the foreign government and foreign intelligence is a significant purpose of the collection. foreign intelligence collection is only a significant purpose of the collection and we are left to wonder what is the primary purpose of information gathering? with the patriot act, we headed members of the organizations and terrorists to the low threshold for collecting intelligence. fisa recognizes that it falls under the requirements of fourth amendment when persons are implicated. such a low threshold for intelligence with a low threshold diligent oversight and reporting is required to ensure that the collection is not dpr a broader purpose than necessary it achieve the goals. we should not be surveilling americans by this low standard without some significant oversight. that's why we need clear

standards that are enforced. the court was created to oversee the operations of foreign intelligence and expect that the court is doing a good job and may be doing a good job opinion its authority, but operates in secrecy. i believe that the public has a right to know from laws and policies and reports on their implementation that the government is being held accountable for the constitution and the laws. i do not believe that the faa provides assurances to the public and neither are the areas. i do not believe they meet the needs of technology, but the likewise need to protect privacy when technology advances. the 1978, there is little american communication to and from foreign countries compared to the constant borage of e-mail, phone calls and other

electronic communications. what was rare is now common place. the faa processes a result in massive amounts of information with an untold amount affecting americans in america. when we talk about collection of data, it's not just computers, it's the government official. maybe your neighbors. when you spread it around to other agencies, you may be talking about other neighbors who are getting access to your private information. the primary requirements are the fourth amendment are probable cause, warrants and particularities and conduct and place. it is not clear that they are being met when required under the faa's current structure. we hear complaints that it is too burdensome to go through the

procedures require and we have to give up our privacy for greater safety. those who would give up the liberty to purchase temporary safety and neither the government's press for accomplish the authorized purchases or the ease by which you can get the information should lessen the protections and emergency procedures are provided under the constitution and under the faa, but the exception should not be the rule. i look forward to the testimony by witnesses and where they draw the lines between the insurances they are entitled to and the legitimate needs of the government to do its job. thank you. >> the chair recognizes the ranking member of the full committee, the gentlemen.

moore. >> the fourth amendment is critical and i don't think that the supreme court, the courts have not finally ruled on what's going on. how much we need to know and i'm glad we are going to have a close said door hearings. in terms of settling some of the lack of information that we have about this subject. and so i guess it's going to be

how much do we need to know and how much do we talk about publicly. how do we make sure that quite frankly fisa is not out of control. at this point we don't have any way of knowing that. one of the problems is the so-called minimization strategy. i think we need to strengthen minimization and to make sure that this is a very understandable fisa operation. that is constitutional. right now they hope they they

will support or lead and we need to talk to fisa officials. and the whole idea of pulling a hearing about fisa and nobody from fisa is here. we want to talk to the director publicly or privately. i haven't had that opportunity yet and i hope that the members of the committee share in my desire to do that. you will put the rest of my statement into the record. >> objection. >> i would hope that my dear

friend bobby scott will not support ben franklin's motto and take it too seriously. we will end up in a worse situation than we are now. i yield back the balance of my time. let me say for those who missed it, this is a rare chance to see bipartisanship and action. they have the republicans and the democrats criticizing the obama administration. i hope that everybody in the room duley notes that. i would point out that since the faa amendments of 2008, there has been no federal court to my knowledge that has declared any part of the faa amendments unconstitutional on fourth

amendment grounds. there is a case where the supreme court granted certiorari called a clapper versus amnesty international. but that is on the question of standing rather than on the question of alleged fourth amendment violations. that being said, it is now my pleasure to introduce today's witnesses. kenneth waynestein is on the staff where his practice focuses on the corporate internal investigations and he is a professor of georgetown law school. they served as an assistant attorney of the southern district of new york and columbia. later he served as u.s. attorney in d.c. and then was assistant attorney general for national security. he served as fbi director robert muller's chief of staff and as president bush's homeland security adviser. he received his under grad degree from university of

virginia and the law degree from the university of california at berkeley. mark is executive director of the electronic privacy communication center in washington, d.c. he is also an adjunct professor of law at the law center. he served down several national and international advisory panels and chairs the bar association on the information protection. he is a founding board member and chair of public interest registry that manages the dot org domain. he is a graduate of harvard and stanford. deputy legal director at the aclu and director of the aclu for democracy. he joined in 2002. before joining the staff of the aclu, he served as a law clerk on the court of appeals for the

second circuit and the judge the chief justice of the supreme court of canada. he is a graduate of williams college and cambridge and harvard law. without objection, the statement will be entered into the record in their entirety and i asked that you summarize your testimony in five minutes or less and to help you stay within the time limit there the green, yellow, and red lights before you. i think you all know what they mean. i now recognize mr. waynestein. >> is it on now? >> better. >> ranking member scott and ranking members and members of the subcommittee. i want to thank you. before getting into the fisa amendments act, i have to remind you about the threat from

international terrorism that the legislation was designed to address. since the attacks of 9/11, we have been at war since terrorist affiliates around the globe and we are making great progress. there many reasons, but one development that contributed to that progress is congress's decision to modernize the surveillance with the passage that defies the amendments act of 2008. in considering the faa's reauthorization, we need to know why it was that it was necessary to modernize the foreign intelligence act in the first place. as you know, fisa was passed in 1978, establishing the surveillance court or fisa court and requiring that any electronic surveillance of foreign powers must be approved by the court. in crafting this law, congress recognized it had to witness the need for review process for domestic surveillance against the government's need to freely cone duct surveillance overseas. it accomplished that by clearly

distinguishing between surveillance's directors within the united states where protections apply and those directed against persons outside the united states were fourth amendment does not apply. in identifying those targets that fall within the statute and could be surveilled only after the government puts together an application and obtains a court order, they laid out a number of factors and the fisa court and the government should look at, including the type of communications technology that the target was using that whether by wire, cable, or satellite transmission. the result was a carve out from the court approval for surveillances that targeted communications made from overseas locations. with the change in technology over the years since 1978, that carve out started to break down and the government found itself spending significant manpower generating applications for surveillances against persons

outside the united states. as a result the government was an unnecessarily expanding resources and increasingly forced to make tough choices regarding surveillance of targets. to the enduring credit, they recognized that this was untenable in a post 9/11 world and after a year of careful consideration, it passed the faa. first it authorized the fisa court to improve categories of nonperson intelligence targets overseas without providing the government to provide an individualized application that brought the operation of pfizer back in line with the original intent. second it established a system of oversight by the fisa court and congress and various actionors within the executive branch to ensure this would be exercised in compliance with the law and the constitution. third, significantly added to the protections by imposing the requirement for the first time that the government seek and obtain an individualized order

from the fisa court when it seeks to conduct intelligence on a u.s. person for that u.s. person who is outside the united states. the fisa amendments act was a well-calibrated piece of legislation. in supporting the administration's call, i asked congress to focus on the three considerations that have been the focus of my remarks here today. the vital importance of the faa authority to our counter terrorism efforts. two, the extreme care with which members considered, craft and limited that contract when they passed the faa and three, the representations that that authority has been implemented to great effect and with full compliance with the law and the constitution. in addition, we mist focus on one other important consideration which is the severity of the threat we face today. we have weakened them in many ways. the terrorist adversaries are

intent on inflicting damage and death. now is not the time to rest on our accomplishments and to weaken the defenses or scale back on the intelligence authority. to the contrary. now is the time to press the advantage that we gain and reauthorize the statute that has done so much to protect the liberties and the people. thank you for giving me the opportunity to speak on this and we look forward to answering the questions we may have. >> thank you. mr. rotten berg? >> mr. chairman and members of the committee, thank you very much for the opportunity to testify today. i'm director of the ex-elect ronnic privacy center where the research organization is. very much concerned about the electronic service authority. i am the chair that looked at the foreign intelligence surveillance act shortly after 9/11. the committee was fully aware of the threats to national security

and our country and considered certainly the essential purpose of the fisa to enable the collect of intelligence information. the committee made three recommendations to also ensure the protection of sprnt privacy interests in u.s. persons. suggesting first that congress had a critical oversight roll and grateful for the hearing today. the data collection be focused so as to protect interests and third, i think of particular interest to the committee this morning, there is a recommendation that the public reporting requirements for the use of the surveillance act be expanded so that information would be available to the public on the use of fisa similar to the information that is available for the use of title three criminal wire tap parents. my testimony this morning focuses on the need to promote this type of transparency and

accountability in the use of fisa authority. you may be aware that the administrative office at the u.s. courts publishes an annual report and runs almost 200 pages and details the use of wire tap authority for criminal investigations and provides a great deal of information about the cost and the effectiveness and the jurisdictions as well as the number of incriminating and non-incriminating communications gathered. the report for 30 years provides only statistical data. doesn't implicate any investigation or reveal any details about ongoing investigations. it does however provide a basis for the public and for the congress to evaluate the effectiveness and the use of electronic surveillance and criminal investigations. the aba recommended in 2003 and i bet very much supports the view that in your consideration

of the fisa amendments act, there should be greater public accountability. there simply too little known today by the american public about the circumstances under which fisa authorities are used. the problem has become somewhat worse. one of the key changes that was made in the amendments act of 2008 was to authorize the use of warrants for categories of targets rather than particular individuals, raising significant constitutional questions, but also calling into question the very minimal reporting that currently takes place under the foreign intelligence surveillance act. in our testimony we sthaug a number of internal procedures that have been established which provide from the attorney general and from the director of national intelligence reports to you about the use of section seven of the act could be presented in such a way that

they could be made available to the public with simply the statistical data about the use of the 702, 703, and 704 authorities. we think if this information were made available, the public would have more confidence about the use of fisa authority. mr. jofr is going to speak in a moment i know about the case clapper versus amnesty which was mentioned a moment ago. the question that arises is whether the american public has a well-founded fear and they might be subject to unlawful surveillance. we have to say at this point without better public reporting, we don't know. we don't know the s under which fisa authorities are used. we would recommend enhanced reporting and have additional suggestions as well we think would improve oversight and transparency o parnsy for the

review. there check there is and reporting to the public is inadequate. we would urge you to consider the changes before reauthorization. >> thank you very much. mr. jafr? >> could you please turn your mike on. got it now. >> thank you for inviting me to share the aclu's concerns about the fisa amendments act. we urge you not to reauthorize the act in its current form and not to reauthorize in any form until the government discloses more about how the act has been used. in essence this allows the surveillance of americans international communications and it bars the government from intentionally targeting people who are inside the united states, it places no restrictions on targeting people overseas. even if they are communicating

with u.s. citizens and residents. the act is to give unrestricted access to the international phone calls and e-mails. it permits them to require them to specify the people or facilities to be monitored without requireing it to comply on retention, use, and dissemination and requiring them to obtain paurnts and the targets of government agents are connected in any way to terrorism. the technology is more advanced now. but the act authorizes what the framers would have described as general warrants. a single order can be used to justify the monitoring of millions of communications. it can authorize all phone calls to or from party interest, russia or iran or mexico, for example. including phone calls to and from u.s. citizens inside the

u.s. to engage in that kind of surveillance, the government needs to target people outside of the united states, in targeting people outside of the united states, it would take private communications. the act also has dramatic implications for the freedoms of speech and association. the experience of other countries shows that these freedoms widthner an environment in which they are unrestrained. 35 years ago, they warranted unrestrained surveillance threatened to undermine and alter its nature. it would be irresponsible to disregard that warning. you should not reauthorize it without prohibiting the americans communications and more narrowly restricting the simples in which the communications can be retained, used and disseminated. you should not reauthorize the act without requiring the government to make more information about the interpretation and use of the

act. the government has not disclosed legal memos nor has it disclosed even in part any relevant opinions issued by the fisa court. it does not disclose the number of times that dni and the attorney general have invoked the act. the number of americans targeted or whose communications have been collected in the course of surveillance nominally directed at people overaccess. some of that information has been made available to some members of congress and the fisa court, but no reason why the information redacted to protect the sources if necessary should not be made available to the public and all members of congress. the public heads a right to know how the government interprets surveillance authorities and has a right to know in general terms how the authorities are being used. the implications for americans's privacy they refused to explain.

the little that we do know about the executives is troubling. records obtained show that the act has been violated repeat repeatedly. the "new york times" reported in 2009 that the nsa intercepted message fist phone calls of americans on a scale that went beyond the broad legal limits established by congress. we urge congress not to reauthorize the act in any form without requiring the government to disclose more information about how the act has been interpreted and used. thank you again for giving me this opportunity and i look forward to your questions. >> i want to thank all of the witnesses for staying within the five-minute time limit. the chair will withhold his questioning and will start by recognizing the gentlemen from california. five minutes. >> thank you very much, mr. chairman. do you have a problem with the fisa court's competence in reviewing on an annual basis the

procedures that are used by the intelligence to conduct these programs, the programs have an annual review. >> i don't think the question is one of competence. i think it's one of the court's jurisdiction and mandate. the question is, has the court been given the authority to actually ask the government why it's engaged in this surveillance and who the targets are. >> your question is you don't know whether that's the case or believe that is not the case? >> i don't think there is enough public information to know anything. the court has acted. >> the sthamt there is a fail tower have the auditing process with the procedures they use leads you to talk about this being a dragnet is based on lack of sufficient information in the public domain to make the judgment? >> there two things.

the statute itself which authorizes the dragnet surveillance and the obama administration has not disagreed with that. >> they didn't use that word, but they did say that this statute can be used. >> you said there is no auditing process. in fact, there is a requirement that the court must review these programs on an annual basis in addition to the applications suggested by the court in particular cases. could you reflect on that based on prior experience? >> the competence of the court? >> when and whether they ask these types of questions. i can tell you what i know from briefings and what we have seen, but your experience on that. >> thank you for the question,

sir. i was the assistant for national security. that's for the time i was there. i can tell you from personal experience, they are very active and they are federal judges and used to getting answers and asking questions and getting answers. they take the responsibility very seriously and the oversight responsibility. when you go in, there is routine orders that you apply for and get and that's like any federal judge that you use search warrants. they base the decision on the facts they present to them. they have the broader purchase of making sure the program is run responsibly and they ask the tough questions. i can't speak from personal experience about the oversight on the faa because that happened after i moved out, but i can say knowing the judges, they are being very aggressive in making sure that the target procedures are well design and well applied with instances that there might be mistakes.

>> it is a fact that those of us in congress who serve on the judiciary and intelligence committees have the ability to look at the documents and the decisions made by the court both in terms of the general review of programs and any decision made by the court that has a significant legal issue. is your problem that that is limited to just those members of congress although i believe if another member asked the congress, it would be up to the chairman to make that decision. is it your objection that that is too limited and that those of us on the committees either don't have the competence or it should be expanded or that the public should have that information as well? >> i think it's the latter. cly