the university of california at berkeley. mark is executive director of the electronic privacy information center in washington d.c. he is also an adjunct professor of law at georgetown university law center. he served on several national and international advisory panels and chairs the bar association committee's 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 law school. and we have 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 cambridge university and harvard law school. without objection, the witnesses' statement will be entered into the record in their entirety and i ask that you summarize your testimony in five minutes or less than 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. >> i thought i did. is it on now? j >> better. >> ranking member scott and ranking members and members of the subcommittee. i want to thank you. before getting into the fisa ammendments act, it's important to remind ourselves of the

threat from international terrorism that this legislation was designed to address. since the attacks of 9/11, we have been at war with al qaeda and with 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 of the fisa act in 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 or their agents must first be approved by that court. in crafting this law, congress recognized it had to balance the need for review for domestic surveillance against the government's need to freely conduct surveillance overseas.

it accomplished that objective by distinguishing by surveillance directed against person within the united states where constitutional protections apply and those directed at persons outside of the united states where the 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 from the fisa court, the court laid out a number of fact that 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 intervening years since 1978, that carve out has started to break down and the government found itself expending significant manpower generating applications for

surveillances against persons outside the united states. as a result the government was 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 non-u.s. persons 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 action or 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 overseas intelligence collection on a u.s. person for that u.s. person who is outside of the united states. the fisa amendments act was a well-calibrated piece of legislation. with the faa set to expire at the end of this year, the administration strongly urged congress to reauthorize the legislation. in supporting the administration's call for reauthorization, 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 authority when they passed the faa three years ago 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 on the united states and its people. given that reality, 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 press the advantage that we gain and reauthorize the statute that has done so much to protect the people and their liberties over the past four years. thank you for giving me the opportunity to speak about this important matter and i look forward to answering any questions you may have. >> thank you. >> mr. chairman and members of the committee, thank you very much for the opportunity to testify today. we're a nonpartisan research organization very much concerned about the government's use of electronic surveillance 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 collection of important foreign intelligence information. the committee made three recommendations to also ensure the protection of important privacy and certain interest of u.s. persons. suggesting first that congress had a critical oversight role and grateful for the hearing today. the data collection be focused so as to protect constitutional 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 3 criminal wiretap warrants. 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 wiretap 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. most critically, this report which has been produced every year for over 30 years, provides only statistical data. doesn't implicate any particular investigation. doesn't 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

very much supports the view that in your consideration of the fisa amendments act, there should be greater public accountability for the use of these wiretap authorities. there simply is 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 suggest that a number of the 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 7 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. now they will speak in a moment 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. i think we have to say at this point without better public reporting, we simply don't know. we simply don't know the circumstances under which fisa authorities are used. we would recommend enhanced public reporting and we have additional suggestions as well that we think would improve

oversight and transparency for the fisa court of review. there are checks there in the reporting to congress but the reporting to the public at this point is simply inadequate and we would urge you to consider those changes before reauthorization. thank you. >> thank you very much. could you please turn your mike on. >> 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 dragnet surveillance of americans international communications. although it bars the government from intentionally targeting people who are inside the united states, it places no restrictions on targeting people overseas.

even if those targets are communicating with u.s. citizens and residents. the act's effect is to give the government nearly unrestricted access to americans international phone calls and e-mails and permits the government to acquire those communications without requiring it to specify the people or facilities to be monitored without requiring it to comply with meaningful limitations on retention, use and disemnation and without requiring it to use individualize the warrants or make determinations that targets are foreign agents or 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 general surveillance order can be used to justify the monitor 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 collect countless americans private communications. the act also has dramatic implications for the freedoms of speech and association. the experience of other countries shows that these freedoms wither in an environment in which government surveillance is unrestrained. 35 years ago the church committee warraned that 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 circumstances in which those 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 interpreting the act or even disclosed 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 unlawfully targeted or the number of americans whose communication has been collected in the course of surveillance nominally corrected at people overseas. 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 surely has a right to know how the government interprets its surveillance authorities and has a right to know in general terms how those authorities are being used. congress can't reauthorize a surveillance statute whose

implication for americans privacy the executive refuses to explain. the little that we do know about the executives is troubling. records obtained show that the act has been violated repeatedly. "the new york times" reported in 2009, that the nsa intercepted private e-mail messages and 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 for five minutes. >> thank you very much, mr. chairman. mr. jaffer, 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 community to conduct these programs, that is 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 the court's mandate. the question is, has the court been given the authority to actually ask the government why it's engaged in this kind of surveillance and who its targets are. >> your question is you don't know whether that's the case or you believe that's not the case? >> i don't think there is enough public information to know anything. the court has acted. >> your statement that there's a failure to have an auditing process of the procedures they use, that then leads you to talk about this being a dragnet is based on lack of sufficient

information in the public domain make that judgment? >> there two things. the statute itself which authorizes the dragnet surveillance and the obama administration has not disagreed with that. >> they didn't call it dragnet but go ahead. >> they didn't use that word, but they did say that this statute can be used. >> what i'm trying to understand is 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 that are requested by the court in particular cases. could you reflect on that based on your prior experience? >> the competence of the court? >> yes and whether they do in fact ask these kind of questions. i can tell you what i know from classified briefings and what

we've seen but your experience on that. >> thank you for the question, sir. i was the assistant for national security. 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 to those questions. they take the responsibility very seriously and responsibility being oversight responsibility. when you go in, there is routine orders that you apply for and get and that's like any federal judge that issues a search warrant. they base the decision on the facts you 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 under the faa because that happened after i moved out of that position, but i can tell you knowing those judges, they are being very aggressive in asking the questions in making sure that the target procedures are well designed 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 chairman of intelligence or judiciary, it would be up to the chairman of either of those committees 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 that other members have it or that the public should have that information as well?

>> i think it's the latter. clearly it's an important oversight mechanism that you have access to this information and we support that, but we think the public could be provided with reports. warrant withless wiretapping program, part of the reason that the oversight mechanism broke down and the fisa court itself was not informed about the activities the government was engaged in because there weren't enough reports put in place so we're certainly not questioning the competence of the court or the oversight committees. we are saying that this additional safeguard that would give the public opportunity to have a general picture of this very important government function and would be helpful. >> i appreciate that, and i understand the different positions here, and i would just stress that this is an independent court and it is made up of sitting federal judges and there is a review court as well and those of us in the congress that serve on these committees

have access to any major decision made by the court as well as these annual reviews done by the court. >> the time of the gentleman has expired. >> thank you, mr. chairman. you indicated that you could target e-mails if they were overseas. you can pick up e-mails anywhere. how do you know that an e-mail has been sent overseas? >> i thank you for the question. so this is actually one of the questions that i think congress should try to get to the bottom of because it really is a concern that the act forecloses the government from targeting people who are known to be in the united states and a lot of instances you don't know. you don't know where a person is, you don't know where the communication is coming from or going to and under this statute, the government has the authority to pick upon those kinds of

communications and that's one of the concerns about the act. >> the technology allows you to get a whole lot of information. should there be a difference of getting the information and what to do after you get it with the select and search kind of things? >> absolutely. you have to divide this into two questions. there's a front-end question of what the government should be permitted to pick up and then the back end question of what the government can do if it's picked up and this goes on mr. lundgren's questions, too. it's important to recognize that the court's role is very important. this isn't like a traditional search warrant process in which the court is pressened with evidence about a particular target? some justification for wiretapping that target. this is a system in which the fisa court has wide programs and the only question that the fisa court asks is whether the program as a whole has a

significant purpose gathering foreign intelligence information and whether the targets are overseas and again, targets overseas very commonly speak to people inside of the united states and it's those communications that we're worried about here. >> you said the significant purpose, it's aing aive in kant purpose in response to the question i asked a former attorney general and it's just a significant purpose and not the primary purpose, what could the primary purpose do? we have some of these joint task forces where we may have an intelligence official sitting up there and others were restrained by criminal warrant standards where they need probable cause that the foreign intelligence standard which means it's relevant to foreign intelligence which could be about anything. in response to the question, what could the primary purpose be if it's not foreign intelligence andy hoo said it could be a criminal investigation which means you're doing a criminal investigation on a much different standard.

should we change a significant purpose back to the primary purpose that we had before the early 2000s? >> i think that would be a great thing to do. i think that there are a few other things that you should consider doing as well. one is foreclosing dragnet surveillance of american communications and there are a variety of ways to do that and proposals have already been made and the other and you were alluding to this, mr. scott is strengthening the minimization requirements, so even if congress decides that it is in the interest of the country to give the government unfettered access to americans' international communications in the first instance, there's still the question what can the government do to those communications and to ensure that americans' privacy is

protected. mr. winston, you indicated the comparison in fisa courts the search warrants and how the court has to go through a process. the different between search warrants in the criminal case is that search warrants become public so the public can see what's going on. >> what kind of information should be made available to the public so you can have confidence that the program is being run appropriately? >> that's a very good question and the transparency and public knowledge of any security program is of serious concern because the more knowledge the public have, the more authority they have of being exercised and that's a very important concern. i would say when it comes to fisa court operations that's the most sensitive of the sensitive operations in the national security apparatus and recognizing that, fisa, the statute itself decided

appropriately to give that insight to congress so congress gets reports on a regular basis about the orders that are issued by the fisa court could ask questions about the program and could bring members of the executive branch up and quiz them about enclosed session and about classified information and that's the balance and that's the balancing that provides the representativeses of the people and doesn't divulge important secrets. >> thank you very much. gentleman from michigan. mr. conyers. >> thank you, sir. i think our discussion this morning brings us to this issue, can and should we get more information in the process of reauthorizing fisa?

and with exception of the former attorney general of california on the committee, i think everybody that i've heard thinks that there is nothing wrong with getting a little bit more information so that we know what's happening. would you say that's a fair opinion to hold at this point, mr. weise? >> in theory as a matter of principle, more information that the public is better all things being, call, however, in this area where you're talking about intelligence officials coming into the fisa court laying out the most sensitive information about sources and methods -- >> we didn't say -- i don't want to do that, either. so i agree with you. we don't want to throw out sensitive information. that's why i said this is a somewhat tricky sensitive kind

of a discussion we're having. but let's agree that we don't want to do that, and i don't want to rationalize doing it. >> i think it's a very good approach and it would give us more information to evaluate the effectiveness of the program, certainly in looking at the annual wiretap report and we get useful information and shows us strengths and weaknesses and where government authorities need to be enhanced and that would help here. >> after all, we want to improve the laws. i know you were very generous in your compliments about the congress acting on this originally, but for goodness sake, just to okay it again because we did it before, couldn't we am prove it a little bit? what about minimize aith, mr.

jafer? doesn't that require a little more carefulness? >> i think it does, mr. conyers. the way minimization works right now, the government is required to minimize only in so far as the information obtained isn't foreign intelligence information, but foreign intelligence information is defined extremely broadly. any communication oforeign affairs is one that the government under the statute can disseminate and americans talk about foreign affairs all of the time over the phone and e-mails and i think it's unacceptable to say to americans that when you are communicating about foreign affairs in an e-mail, that is something that the government can have access to even if you've never done anything wrong and even if the person you're talking to isn't believed to have anything wrong. mr. conyers, if i could say one more thing about the transparency point that you raised