and one of the problems is the so-called minimizization strategy. and so i think we need to strengthen minimization and to make sure that this is a very understandable fisa operation that is -- so i'm hoping that in addition -- and i hope the chair will support and even lead in this. we need to talk to fisa officials. this whole idea of us holding a hearing about fisa and nobody from fisa is here, it's part of

the problem. we want to talk to the director.

>> let me say for those who have missed it, this is a rare chance to see bipartisan ship in action, you have the republicans supporting the obama administration and the democrats criticizing the obama administration. and i hope that everybody in the room duly 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. called a clapper versus amnesty international but that is on the question of standing, rather than on the question of fourth amendment violations. it is now my pleasure to produce

today's witnesses. his practice focuses on corporate internal investigation. he is also anned a junkets procedure-. mr. winestein served in the southern district of new york and the district of columbia. the area served as u.s. attorney in d.c. anding then was assistant general for national security. he is served as fbi director robert muller's chief of staff. mr. waynestein got his law degree from the university of california at berkeley. mark rottenberg is the executive director of the electronity privacy information center, known as epic in washington, d.c. and is also an adjunct professor

of law. he chairs the american par association's on privacy and information protection is a founding board member and former chair of public interest registry which manages the dot org domain. director of t he joined the staff of the aclu in 2002. before joining the staff, he served as a law clerk on the court of appeals on the second circuit. he is a dpraj watt of williams college, cambridge university and harvard law school, without objection, the witness's statement will be entered into the record in their entirety, i ask that you summarize your

testimony in five minutes or less, and to help you stay within the time limit, there are the green, yellow and red lights before you. i now recognize mr. waynestein.

in considering the faa's reauthorization, we also need to remember 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, and requiring that any electronic surveillance had to be approved by that court. against the government's need to freely conduct surveillance overseas. it accomplished that objective by -- locate within the united states where constitutional protections apply and those outside the united states where surveilled only after the

government puts together a volume nice application. the fisa court and the government should look at, including the type of communications technology that the target was using, whether communicating by wire, or by satelli satellite -- with the change in technology through the intervening years, the government countdown itself expending significant manpower generating fisa court applications for surveillance against person outside the united states. in increase forced to make tough choices. to its enduring secret congress recognized this this situation was untenable.

it authorized the fisa court to approve -- overseas without providing the government to prevent a -- fisa back in line with its original attempt. second, he established a pull mully level of system by the fisa court, by congress and by various actors within the executive branch to approve that this authority would be exercise. and third, significantly added to the protections for u.s. persons by imposing the requirement for the very first time that the government seek -- intelligence collection on a u.s. person. with the faa set to expire again this year, the administration has strongly urged congress to

reauthorize the legislation. in supporting for the -- three considerations that have been the focus of my remarks here today. one the vital importance of the faa -- two, the extreme care with which members of congress -- when they passed the faa four years ago and three the representations of the the executive branch that that short has been impmented to great effect. we must also focus on one other consideration. we have certainly weakened them in many ways, our terrorist adversaries are -- given that raility, now is not the time to rest on our accomplishments, to weaken our defenses or to scale back on critical intelligence authority. to the contrary, now is the time to redouble our efforts, to press the advantage that we have gained and to authorize a status

that -- thank you for giving the opportunity to speak in this important matter. >> mr. rottenberg. mr. chairman, members of the committee, thank you very much for the opportunity to testify today. i'm director of the electronic privacy information center where nonpartisan research organization, and i'm very much concerned about the government's use of surveillance authority. the committee was fully aware of the threats to national security, to our country and considered certainly the essential purpose of the fisa to enable the collection of important foreign intelligence protection of important privacy breasts and congressional interests of u.s. persons,

subjecting that congress had an oversight role to play and in that spir rid, we're grateful for the hearing today. of particular interest to the committee this morning is the recommendation that the public reporting requirements for the use of the fisa act be expanded. similar to the information that is available for the use of title iii criminal wiretap warrants. so my testimony this morning really 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 of the u.s. courts publishes an annual report. it details the use of wiretap authorities for criminal investigation. it provides a great deal of information, about the cost, about the effectiveness, about

the jergss that are using wiretap authority as well as the number of incriminated and no-- provides only statistical data, doesn't implicate any particular investigation, doesn't reveal any details about ongoing -- it does provide a basis for the public and for the congress to evaluate the effectiveness and the use in criminal investigations. the aba recommended in 2003 and very much supports the view that in your consideration of the fisa amendments act, there should be great other -- there is simply too little known today by the american push lick, about the circumstances under which fisa authorities are used. one of the key changes that was

made in the fisa act of 2008 was to authorize the use of warrants rasing 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 suggest that a number of the internal procedures that have been -- presidents to you about the use of section 7 in the act, cowl 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

authority -- speak in a moment i know about the case clapper versus amnesty which the chairman mentioned a moment ago. the question that arideses in that case is whether the midwestern public has a well founded fear that the fisa authorities might be misused, that they might be subject surveillance 9 we simply don't know the circumstances under which fisa authorities are used. so we would recommend enhanced public reporting. we have addition -- there are checks there in the reporting to congress. but the reporting to the public. >> mr. jafer? could you please turn your bhik

on? got it now. . >> we urge you not to reauthorize the act in its current form and not to reauthorize the act in any form until the government discloses more about how the act has been used in essence this act allows the dragnet -- argumenting people who are -- -- it places virtually no restrictions on targeting people overseas, even if those targets are communicating with u.s. citizens and residents. it permits the government to acquire those communications without specifying the people or facilities to be honoreded, without requiring it to be and

without requiring it to obtain individualized warrants or even to make prior administrative surveillance to iism a -- a sine surveillance order can be used to justify the modification of mill -- all phone calls to or from a country of foreign policy interest, russia or iran or mexico, for example. including phone call inings -- government would need to target people outside the under the circumstances. but in targeting people outside the -- the act also has dramatic implications for the freedoms of speech and association. the experience of other countries shows that these

freedoms witter in an environment in which government -- unretrained government surveillance and fundamentally alter it's nature. it would be irresponsible to disregard that warning. you should not reauthorize the fisa act without pore-in which those communications can be retain and you should not reauthorize the act in any form without first requiring the government to make public more information about its interpretation and use of the act. the government has not disclosed its legal memos interpreting the acts or any relative opinions issued by the fisa court. it has not exposed the number of times that we have invoked the act or the number of americans whose communications have been

collected. now some of that information has been made available to some members of congress and the fisa court, but there is no reason why this same information, redacted to protect intelligence sources and methods if necessary should not be made available to the public and to all members of congress. the public surely has a right to know how the government interprets its surveillance authorities and,those authorities are being used. congress can't ---mile-per-hour indications for americans privacy, the executive refuses to excomplain. the little that we do know about the executives use of the act is troubling. >> records obtained by the aclu show that the act has been violated repeatedly. the "new york times" reported in 2009 that the nsa had intercepted private phone calls

of americans that went beyond the limit -- we strongly urge congress not to reauthorize the act in any form. 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 gentleman from california. >> mr. jafer, do you ha jafer, problem with -- procedures that are used by the intelligence conduct these programs, that is if the programs have an annual review? >> i don't think the question is one of competence, i think it's one of to the security's as the

court been given the authority to actually ask the government why it's been engaged in this kind of surveillance. >> so your question you don't know if that that's the case, or you believe that that is not the case. i. >> i don't think there's -- >> so your statement that the failure to have an auditing process of 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 that july, is that correct? >> there's two things t statute itself that authorizes this kind of dragnet surveillance. and the obama administration has not disagreed with that. >> i don't recall gne that wor but they did say that this staff yult can be used for nonindividuals. >> as you said, there is no auditing process.

in fact there is a requirement that the court must review these programs, these specific programs on an annual basis in addition to the specific applications that are requested by the court in particular cases. mr. -- could you reflect on that based on your prior experience? >> the competence of the court, sir? >> and whether they do in fact ask these kinds of questions. i can tell you what i know from classified briefings and what we have seen, but your experience on that. >> i was the assistant attorney general for national security so i was sort of enpoint with my folks for dealing with the fisa court for the time i was in that position. and i can tell you from personal experience, they are very active, they are used to asking questions and getting answers to those questions and they there's

routine orders that you apply for and get, and that's just sort of like any federal judge that issues sir ch warrants, but also have the broader purpose of making sure the program is being run responsibly and they ask tough questions. i can't speak about their oversight over the faa, but i can tell you that knowing those judges that they're being very aggressive in asking the questions about how target procedures are being applied. >> mr. rottenberg, it is a fact that those of us in congress who serve on the judiciary committee and the intelligence committee have the ibability to look at t documents and the decision 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 of congress -- it would be up to the chairman of oather of those committees to make that decision. but it is it your objection that that is too limited and that those of us on these committees either don't have the confidence or that it should be expanded that other members have it or that the public should have that information as well? >> i think it's the latter, mr. lund again. clearly it's a oversight mechanical anymore and we support that, but we also do think that the public could be provided with statistical reports. and going back to the history of the warrantless wiretapping program, part of the reason that the oversight mechanism broke down and the fisa court itself

was not informed about the activities that the government was engaged in.