Transcripts For CSPAN Government Surveillance Programs 20140

Please let us know and whatever per whatever appropriate form we have and whether or not wouldnni arab countries follow soon. Could you get that pretty quickly . , we will try to provide a written assessment of that. If in fact enrichment of uranium spread throughout the , would you agree that that would be a very bad scenario for the National Security of the United States and israel if nations throughout the mid east turned to enriching uranium . Yes, particularly if it were for other than peaceful purposes. You think iranians are trying to hold a bomb before we get involved . Made theave not determination to go to that step. Aey have approached this from threshold capability. For the iranians the decision is a political one. They certainly have the expertise if they so chose. Would it take them if they made that decision . Them a that depends on a lot of factors and closed sessions. Gentlemen, we appreciate your testimony, your service. I joined a number of colleagues who have asked you your appreciation appreciation for their service. We will be in touch for closed meeting. If you missed any of these hearing you can watch it in its entirety online at cspan. Org. Syria was mentioned and npr reports on the ongoing talks between the Syrian Government and opposition leaders, which has stalled. Saysrab league mediator the Syrian Government refuses to deal with any other points of contention until the issue of combating terrorism has been settled. Used to describe the rebellion. Fighting in syria has killed 130,000 people. The talks were aimed to avoid a solution that to work to a and try to bring an end to the fighting. According to npr the only thing to come out of this most recent meeting was an agenda for another round of talks. The date has not been set. Records,sue of phone the Associated Press reports that Edward Snowden got some of his classified information from tricking a coworker so he could get an encrypted password. That employee has not been named but has reportedly said he did password,st noted his which enabled access to a number of classified data banks. The employee is a civilian employee. He resigned after the agency learned about his involvement. Edward snowden denies stealing any passwords. Members of the nsa testified before a Senate Committee about the recent report on the nsas collection of phone records. The board consists of five members. They called for the nsa to stop its Data Collection program. Well begin this hearing of the Senate Judiciary committee on the report of the privacy and Civil Liberties Oversight Board on reforms to section 215 elephone 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, weve 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 thats one of the reasons that were 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 metadata hony 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 lawabiding 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. Thats 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 wasnt going to write an opinion, this prevented congress from learning the legal basis for a massive change in the governments claim to Surveillance Authority 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 sked for it. And yet it seemed that the court who signed off on the bulk data program didnt think that the issue warranted an opinion. So im not blaming judge howard for that omission. Judges really arent expected to decide whats important. In fact, often cant do so without a lawyer raising an issue and highlighting it and arguing it and saying its crucial. L 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 weve 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 o 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. Im not going to read it, but if theres no objection ill ask that it be made part of this record, and now turn to the ranking member, senator grassley. I have a statement im 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 didnt have those same concerns i wouldnt 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. Its 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 ive grown more concerned about why the department of justice hasnt prosecuted any of the few n. S. A. Employees who willfully abuse their Surveillance Authority. Which do have examples of where its been abused and refer to the Justice Department. I havent 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 didnt have one. He committed to get me a response, but im still waiting. Its 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 dont quite understand that. On the other hand, other reforms the president announced seem very promising. For example, to the extent it doesnt compromise National Security, increased transparency can help to restore the publics 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 governments 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 programs 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 its my understanding theyre 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 im 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. Its also similar to the president s proposal as well as the approach in the committee that passed out of our Senate Intelligence committee. The boards 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 32 party line vote. The boards 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 boards conclusion is contrary to the opinion of the president of the United States who, as you know, proudly says and legitimately so that hes a formal constitutional law professor as well as even the department of justice taking that same position. Its contrary to the position of prior administrations that initiated the program. Its contrary to the administration of position of 15 fisa court judges. Its 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 boards 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. Dont know if senator franken would like to say any remarks. Ill wait until the questioning. Very good. Thanks. Id 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 youre 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 boards 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 Counsels Office and clerk for Justice Anthony kennedy and Justice Charles freese of the Supreme Court. Supreme Judicial Court of massachusetts. Shes 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, su