[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, SEPTEMBER 18, 2019
__________
Serial No. 116-47
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-884 WASHINGTON : 2021
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York MARTHA ROBY, Alabama
DAVID N. CICILLINE, Rhode Island MATT GAETZ, Florida
ERIC SWALWELL, California MIKE JOHNSON, Louisiana
TED LIEU, California ANDY BIGGS, Arizona
JAMIE RASKIN, Maryland TOM MCCLINTOCK, California
PRAMILA JAYAPAL, Washington DEBBIE LESKO, Arizona
VAL BUTLER DEMINGS, Florida GUY RESCHENTHALER, Pennsylvania
J. LUIS CORREA, California BEN CLINE, Virginia
SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota
JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida
LUCY MCBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief of Staff
BRENDAN BELAIR, Minority Staff Director
C O N T E N T S
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Wednesday, September 18, 2019
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 3
WITNESS
Brad Wiegmann, Deputy Assistant Attorney General, Department of
Justice, National Security Division............................ 6
Oral Testimony................................................. 6
Michael J. Orlando, Deputy Assistant Director, Federal Bureau of
Investigation, Counterterrorism Division....................... 7
Oral Testimony................................................. 7
Susan Morgan, National Security Agency........................... 9
Oral Testimony................................................. 9
Joint Written Statement of Brad Wiegmann, Michael J. Orlando, and
Susan Morgan................................................... 11
APPENDIX
A Letter from the ACLU to Chairman Nadler and Ranking Member
Collins submitted by the Honorable Chairman Jerrold Nadler..... 52
Questions for the Record submitted by the Honorable Ted Lieu..... 59
Response to question for the Record from Brad Wiegmann........... 60
Questions for the Record submitted by the Honorable Sylvia Garcia 62
OVERSIGHT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
----------
Wednesday, September 18, 2019
House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 10:13 a.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Cicilline, Lieu, Raskin, Jayapal,
Demings, Correa, Scanlon, Garcia, Stanton, Escobar, Collins,
Chabot, Gohmert, Jordan, Buck, Ratcliffe, Roby, Gaetz, Johnson
of Louisiana, Biggs, Lesko, Reschenthaler, Cline, Armstrong,
and Steube.
Staff Present: Aaron Hiller, Deputy Chief Counsel; Arya
Hari-haran, Deputy Chief Oversight Counsel; David Greengrass,
Senior Counsel; John Doty, Senior Adviser; Madeline Strasser,
Chief Clerk; Moh Sharma, Member Services and Outreach Adviser;
Susan Jensen, Parliamentarian/Senior Counsel; Sarah Istel,
Oversight Counsel; Julian Gerson, Staff Assistant; Priyanka
Mara, Professional Staff Member; Sophie Brill, Counsel; Brendan
Belair, Minority Staff Director; Bobby Parmiter, Minority
Deputy Staff Director/Chief Counsel; Jon Ferro, Minority
Parliamentarian/General Counsel; Ryan Breitenbach, Minority
Chief Counsel, National Security; and Erica Barker, Minority
Chief Legislative Clerk.
Chairman Nadler. The House Committee on the Judiciary will
come to order.
Without objection, the chair is authorized to declare
recesses of the Committee at any time.
We welcome everyone to this morning's hearing on Oversight
of the Foreign Intelligence Surveillance Act. I will now
recognize myself for an opening statement.
The Judiciary Committee is holding today's hearing to carry
out one of its most important tasks, to ensure that the tools
used by our Government to keep us safe are consistent with our
values and with the freedoms guaranteed by the Constitution.
This Committee has long exercised its responsibility to shape
the legal framework under which intelligence and law
enforcement agencies investigate threats and collect evidence
of crimes.
Although we do not conduct day-to-day oversight of
intelligence agencies, it falls to us in hearings like this to
conduct a broad review of how our Government exercises its
legal authorities and whether that conduct accords with our
values as Americans.
At the outset, I want to acknowledge two things. First, the
men and women in our Nation's law enforcement and intelligence
communities, including our witnesses today, work tirelessly to
keep us safe from attacks and other threats by hostile
adversaries. Those efforts include working rigorously to comply
with our laws.
Second, there are countless Americans in the privacy and
civil liberties communities who are dedicated to keeping us
safe from other kinds of threats--threats to privacy, freedom
of speech, and due process--that take hold when the
Government's surveillance authorities extend too far.
Those who criticize and question the laws we will be
discussing today are part of this Nation's proud and robust
tradition of holding our Government to account, questioning the
Government's reasons for its actions and jealously safeguarding
the freedoms guaranteed to us by the Constitution. It is in
that spirit that I hope to have a serious and substantive
discussion today about the Foreign Intelligence Surveillance
Act, or FISA, and the provisions that are set to expire at the
end of this year.
In response to substantial concerns that the intelligence
community had exceeded its authority under FISA, Congress, in
2015, enacted the USA FREEDOM Act, which contained several
important reforms. Notably, we put an end to the NSA's program
under which it collected the phone records of millions of law-
abiding Americans using a highly strained interpretation of a
provision in the 2001 USA PATRIOT Act.
We reformed that provision, known as section 215, to
prohibit both the collection of phone records and other types
of records. Instead, to collect certain kinds of phone records,
we required the NSA to apply to the FISA court for an order
based on individualized facts and on a specific selection term.
We also created an important mechanism to ensure that the
FISA court hears both sides of the legal arguments in cases
presenting novel and important issues. And we enacted several
measures to enhance transparency in the FISA court and in other
types of reporting.
At the end of this year, section 215 and two other FISA
authorities, known as the ``roving wiretap provision'' and the
``lone wolf provision,'' are set to expire unless they are
reauthorized by Congress. Because these three provisions give
the Government powerful and controversial intelligence
authorities, Congress attached them to sunsetting provisions
when they were first enacted and has reauthorized them for
limited periods of time ever since.
These periodic reauthorizations provide this Committee and
other committees an important opportunity to review how these
laws are used and to conduct the kind of oversight that we are
doing here today. Last month, however, former Director of
National Intelligence Daniel Coats sent a letter to the
leadership of this Committee and other committees in the House
and Senate asking that we reauthorize all three provisions
permanently.
At the same time, former Director Coats' letter
acknowledged that the NSA has dismantled the call records
program that it had been conducting under section 215, as
amended by the USA FREEDOM Act. Simply put, the NSA dismantled
the program because it was a serious failure.
The NSA used it to collect hundreds of millions of phone
records, but in 2018, it discovered that it had no authority to
collect some of the records it was receiving. Worse, it had no
way of separating out which records were wrongly acquired from
the ones that were collected lawfully. So, it started deleting
them all. This has all been publicly reported by the
intelligence community.
To be clear, it is not a bad thing that the NSA identified
a problem, told us about it, and tried to fix it. It is also
fine that they decided the program was not worth running. As
former Director Coats put it, the decision to end the program
was made after balancing its ``relative intelligence value,''
which was evidently minimal, against ``compliance and data
integrity concerns.''
The NSA decided that the costs outweighed the benefits, and
it pulled the plug. That kind of candor should be applauded. It
is baffling to me that the Administration announced that it had
shuttered the program and then, in the very same breath, asked
Congress to extend it permanently.
The Administration has offered almost no reason for this
striking position, except the vague suggestion that we might
need the program sometime in the future as technology changes
and as our adversaries' capabilities evolve and adapt.
When Congress enacted the USA FREEDOM Act, we made a good
faith effort to give the intelligence community the capability
that it said it needed to collect call records. That experiment
has run its course. If the Administration really wants to keep
this provision on the books, it is going to have to justify it
with more than a vague promise that it might come in handy one
day in the future somehow.
I look forward to discussing the other authorities that are
set to sunset, including aspects of section 215 and FISA's
roving wiretap and lone wolf provisions. I also look forward to
discussing, as well, the important reforms that we enacted in
the USA FREEDOM Act and whether any of those reforms should be
strengthened.
As I noted earlier, this Committee has an important and
long-running responsibility to have these candid and rigorous
discussions as we consider how best to ensure that our laws are
in line with our values.
I thank today's witnesses for being here today and for
their service to our Nation.
I now recognize the Ranking Member of the Judiciary
Committee, the gentleman from Georgia, Mr. Collins, for his
opening statement.
Mr. Collins. Last week, we once again commemorated the
lives of all the innocent victims lost on 9/11, the brave first
responders, and dedicated recovery workers. The 9/11
anniversary reminds us each year of the shock, sadness, and
anger we all felt that morning.
Our unity and strength following the attacks were palpable
and encouraging also. Nothing the terrorists inflicted could
defeat our Nation as a worldwide beacon of freedom and liberty.
As part of our resolve, it is critical that tools to defeat
terrorism remain available to the men and women of our national
security and intelligence community, who work tirelessly to
protect our country and to secure the freedoms that we cherish.
Several of these tools are set to expire on December the
15th. It is our duty to reauthorize these authorities.
Otherwise, the authorities revert back to our national security
posture before 9/11. I don't think anyone wants that.
I am actually kind of glad we are actually having this
hearing. It expires on December 15th, we could have been
working on this a long time. I guess we have been busy with
other things. We are at least having this hearing today.
The Foreign Intelligence Surveillance Act was originally
passed to protect Americans from surveillance abuses. Our
national security apparatus surveillance regime offers the
access to critical foreign intelligence that we need, but we
must ensure that there is a balance in both protecting our
security and our civil liberties. FISA was created to do that.
In 2016, during and after the Presidential election, this
balance appears to have broken down. While Democrats accused
Republicans of simply trying to divert attention for political
purposes, it is now clear that those at the pinnacle of our
national security community lost all the objectivity that they
were required by law to exercise. That is coming out now as we
see a FISA report coming out soon.
A necessary component for Americans' trust in the
intelligence community is the perception of fairness,
particularly when implementing surveillance against Americans.
Like many Americans, I await the Inspector General Horowitz's
report on potential FISA abuse from the Presidential election
period. However, it is a fact that multiple individuals at the
top of the FBI have either been fired, terminated, or even
referred for and reported to be under criminal investigation,
although that has seemed to escape the notice of the majority
on this committee.
Oversight and deterrence are clearly needed when the top-
level officials in our intelligence and law enforcement
community are officially criticized and potentially even
indicted for divulging sensitive information and lying. That
said, today we face the reauthorization of authorities passed
in 2015 as part of the USA FREEDOM Act focused on battling
terrorism. Three provisions--Sections 215, Business Records;
lone wolf; and roving wiretaps--must be reauthorized. It is
admittedly difficult to separate our concerns on FISA abuse
from reauthorization facing us, but we need to protect valuable
tools in combating violent extremists and their evil goals.
Two of the authorities are fairly straightforward, the lone
wolf and roving wiretap provisions. The lone wolf provision
essentially permits surveillance of terrorists seeking to harm
us, even if there is no proof of the terrorist being directly
connected to ISIS or al-Qaeda.
Why? We know this has been a trajectory of terrorist attack
where the perpetrators are not ``Members'' of these particular
terrorist organizations but are inspired by their medieval
ideologies.
The roving wiretap provision allows the intelligence
community to follow terrorists and spies who attempt to thwart
or evade surveillance by dumping and switching phones. If we
can do this for drug dealers, we should be able to do it for
suspected terrorists.
Regarding section 215, I look forward to hearing more from
the FBI on their use of this authority. The ability to obtain
business records, particularly in terrorist and foreign
intelligence investigations, but also of suspected spies, is
not something whose authority we can afford to let expire.
However, section 215, as used for collecting call data records,
however, has been significant and seemingly insurmountable
technical problems in its implementation.
We would like to hear from the NSA on their thoughts and
the continuing validity of 215 for collecting CDRs.
I would like to thank each of the agencies who are here
this morning. I wish that more had been able to come this
morning. I wish that we could do this, but in the spirit of 9-
1-1 and the countless other senseless terrorist attacks
illustrate the need for our Nation to always be on guard. The
authorities are set to expire in December. We have gotten to it
now, thankfully. Despite the apparent misuse and abuse of other
FISA authorities, are not the ones we should be removing from
our counterterrorism toolbelt.
I look forward to the witnesses' testimony, and I yield
back.
Chairman Nadler. I thank the gentleman.
I will now introduce today's witnesses. Brad Wiegmann--and
I pronounced that correctly? Brad Wiegmann is the Deputy
Assistant Attorney General at the Department of Justice,
National Security Division. Previously, he served in legal
positions at the Department of Defense and State and at the
National Security Council.
He also served as a law clerk for Judge Patrick
Higginbotham on the United States Court of Appeals for the
Fifth Circuit. Mr. Wiegmann received his B.A. from Duke
University and his J.D. from Harvard Law School.
Michael Orlando is the Deputy Assistant Director at the
Federal Bureau of Investigation's Counterterrorism Division. He
entered duty as a special agent in the Pittsburgh field office
in 2003 and has since worked on counterintelligence matters at
the Honolulu, Baltimore, and Washington field offices.
Previously, Mr. Orlando worked as the Assistant section Chief
of East Asia Counterintelligence Investigations.
Prior to working for the FBI, Mr. Orlando served in the
U.S. Army. He received his B.A. from the State University of
New York College at Cortland and received a Master's in
Leadership from Georgetown University's McDonough School of
Business.
Susan Morgan has worked in NSA operations for 18 years.
We welcome all our distinguished witnesses, and we thank
them for participating in today's hearing.
Now, if you would please rise, I will begin by swearing you
in. Raise your right hand unless you are a lefty.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
[Response.]
Chairman Nadler. Thank you.
Let the record show the witnesses answered in the
affirmative. Thank you, and please be seated.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in 5 minutes. To help you
stay within that time, there is a timing light on your table.
When the light switches from green to yellow, you have 1 minute
to conclude your testimony. When the light turns red, it
signals your 5 minutes have expired.
Mr. Wiegmann, you may begin.
TESTIMONY OF BRAD WIEGMANN
Mr. Wiegmann. Chairman Nadler, Ranking Member Collins,
Members of the committee, thank you for the opportunity to
testify today about four important provisions of the Foreign
Intelligence Surveillance Act, or FISA.
These are authorities that will expire at the end of this
year unless reauthorized by Congress. The Administration
strongly supports permanent reauthorization of these
provisions.
Three of the authorities--the roving wiretap, business
records, and lone wolf provisions--have been part of FISA for
well over a decade. They have been renewed by Congress multiple
times, most recently in the USA FREEDOM Act of 2015. Before
that, these same authorities were reauthorized multiple times
between 2005 and 2011, and each renewal gained bipartisan
support.
Today, I will give you a brief overview of these three
legal authorities and then turn it over to my colleague from
FBI to address how they have been used in practice and their
value to national security. Then my colleague from NSA will
address the fourth authority, the call detail records, or CDR
authority, under which NSA can engage in targeted collection of
telephony metadata in counterterrorism investigations.
First, the roving wiretap authority. This enables the
Government to continue surveilling a FISA court-approved
national security target when the target is taking affirmative
steps to thwart the surveillance. These are individuals who
rapidly and repeatedly change communication service providers
to evade Government monitoring.
The roving provision allows us to continue surveillance
without having to go back to the FISA court for a new order
each time the target switches his phone. The Government has
used this authority in a relatively small number of cases each
year. The cases tend to involve highly trained foreign
intelligence officers operating within the United States or
other important investigative targets, including terrorism
targets.
The Wiretap Act has for decades contained a similar roving
provision for ordinary criminal investigations of, say, drug
dealers or organized crime figures.
Second, the business records authority. This allows the
Government to apply to the FISA court for an order to collect
records, papers, and other tangible things that are relevant to
a national security investigation. It allows the Government to
obtain many of the same types of records that it can obtain
through a grand jury subpoena in an ordinary criminal case.
For example, it can be used to obtain driver's license
records, hotel records, car rental records, shipping records,
and the like. In most cases, these are records for the
Government can be obtain in ordinary criminal or civil
investigation without any court order.
A FISA business records order is typically sought because
national security interests preclude the use of the less secure
criminal authorities or because there may be no criminal
investigation underway in the intelligence context. This
authority has been used several dozen times a year, on average,
over the last several years.
Now, the business records provision is also the mechanism
for the targeted collection of CDRs from U.S. telecommunication
service providers. As my colleague from NSA will discuss in a
few minutes, this provision provides a way for the Government,
pursuant again to a FISA court order, to identify telephone
contacts of suspected terrorists who may be within the United
States.
Finally, the lone wolf provision. This enables the
Government to surveil a foreign person who is engaged in
international terrorism, but who lacks traditional connections
to a terrorist group. It also applies to foreign persons
engaged in international proliferation of weapons of mass
destruction.
Although the Government has not used the lone wolf
authority to date, it fills an important potential gap in
collection capabilities where isolated actors are concerned. It
allows for the surveillance of a foreign terrorist who might be
inspired by a foreign terrorist group, but who is not
technically an agent of that group.
So, for example, it would allow for surveillance of a
foreign person who has self-radicalized through viewing
propaganda of a foreign terrorist organization like ISIS or al-
Qaeda on the Internet or a known international terrorist who
severs his connection with a foreign terrorist group.
Use of any of these three authorities requires approval
from the FISA court under standards prescribed in law. Each
also requires strict rules governing how the Government must
handle any information that is obtained concerning U.S.
persons. Each also is subject to extensive executive branch
oversight, as well as congressional reporting requirements and
oversight. As I have said, each has been renewed by Congress
multiple times in the past.
With that, I will stop and turn it over to my colleagues.
TESTIMONY OF MICHAEL ORLANDO
Mr. Orlando. Good morning, Chairman Nadler, Ranking Member
Collins and Members of the committee.
Chairman Nadler. Good morning.
Mr. Orlando. Thank you for the opportunity to testify today
about important provisions of the USA FREEDOM Act that will
expire later this year unless reauthorized by Congress.
These provisions have been integral to the FBI's success in
many national security investigations. While I will likely not
be able to get into specific examples of our use of these
provisions in an open setting, I will do my best to provide you
with thorough hypothetical use situations.
I have seen these provisions throughout my time as both a
counterintelligence agent and a counterterrorism agent. I am
looking forward to answering your questions today.
National security threats have evolved significantly in the
last 20 years. From the proliferation of mobile smartphones to
the expanded use of end-to-end encryption, new technology has
allowed our threat actors to work increasingly in the shadows.
Today, we have nearly universal access to the Internet, and
anyone with a cell phone can view and become radicalized by
extremist content.
Our subjects are no longer forced to travel to other
countries to communicate with other extremists who threaten the
security of the United States. Instead, they can do this from
their home. Because of this, we are also witnessing a shift
toward individuals acting alone, with multiple ideologies and
without clear ties to any one foreign adversary.
Our window for identification and disruption is getting
smaller. Our subjects are quickly moving from radicalization to
mobilization.
As these threats have evolved, Congress has helped us
ensure we are prepared with the appropriate tools to continue
to protect the U.S. and its interests. I am here today to talk
about the expiring provisions, which the FBI uses with FISA
court approval and oversight.
As my colleague from the Department of Justice explained,
we use the business records provision to obtain records or
other tangible things for use in a national security
investigation. We often describe the business records provision
as a ``building block'' authority. That means we use it during
the early stages of an investigation to build our case against
national security threats.
It is important to note the responses to the business
records order do not contain content. If we see that the
suspect is communicating with a known bomb maker in another
country, for example, that is incredibly important information.
As in this case, the information we get from business
record orders often help us establish the legal threshold we
need to reach to get an order from the FISA court for more
advanced investigative techniques, such as a wiretap. For
example, once we receive the business record returns that the
suspected terrorist is communicating with a known bomb maker,
we would have relevant information to help establish probable
cause for a wiretap.
Similarly, if we received business record returns showing
that the suspect, the terrorist, is buying bomb-making
materials like nitrogen-based fertilizer and large amounts of
ball-bearings, that information can also help us establish
probable cause.
The roving authority detailed in the USA FREEDOM Act is
also an important provision that counteracts efforts by various
national security threats, including terrorists and
intelligence officers, to avoid court-authorized surveillance.
These individuals often employ tactics such as using multiple
burner phones or regularly creating new email accounts.
Without this roving authority, we would struggle to keep
awareness of our targets as they purposely take action to
thwart surveillance. We use this authority regularly in our
national security investigations as a tool to avoid missing
critical intelligence that would be lost if our ability to
initiate surveillance was delayed.
It is worth noting that the FBI only seeks roving authority
when the requirements of the statute are met. That means we
must provide information to show that the target's actions can
have the effect of thwarting surveillance.
The last authority the FBI requests you reauthorize is the
lone wolf provision. While it has not been used since
authorization, we believe it is important to have available.
Homegrown violent extremists are among the FBI's top
threats to the homeland. These individuals are, by definition,
not in direct collaboration with foreign terrorist
organizations. Homegrown violent extremists are often self-
radicalized online through terrorist propaganda and are
motivated to attack with no direction from individuals
associated with a foreign terrorist organization.
The lone wolf provision is narrowly tailored to only allow
use against non-U.S. persons, which gives the FBI an additional
tool without impacting the rights of any U.S. person.
These authorities are critically important in our fight to
keep the American public safe. The FBI urges Congress to
reauthorize these authorities because they will continue to
play an important role in the FBI's national security
investigations as our adversaries continue to advance.
Thank you for the opportunity to appear before you today. I
am happy to answer any questions related to these authorities.
Chairman Nadler. Thank you very much. Ms. Morgan?
TESTIMONY OF SUSAN MORGAN
Ms. Morgan. Good morning, Chairman, Ranking Member,
distinguished Members of the committee.
Thank you for the opportunity to testify today about the
National Security Agency's Call Detail Records Program.
The authority for the Call Detail Records, or CDR, Program
is among the important provisions of the Foreign Intelligence
Surveillance Act that will expire at the end of this year
unless reauthorized by Congress.
Congress added this authority to the Foreign Intelligence
Surveillance Act 4 years ago in the USA FREEDOM Act, as one of
several significant reforms designed to enhance privacy and
civil liberties. It replaced NSA's bulk telephony metadata
collection program with a new legal authority whereby the bulk
metadata would remain with the telecommunication service
providers.
As this committee's 2015 report described, the CDR
authority provides a ``narrowly tailored mechanism for the
targeted collection of telephone metadata for possible
connections between foreign powers or agents of foreign powers
and others as part of an authorized investigation to protect
against international terrorism.''
Critically, the provision authorizes the collection of
certain metadata associated with telephone calls, such as the
originating or terminating telephone number and date and time
of a call, but does not authorize collecting the content of any
communication, the name, address, or financial information of a
subscriber or customer, or locational information.
As this Committee is aware, the NSA recently discontinued
the CDR program and deleted the records acquired under the CDR
authority after balancing the program's intelligence value,
associated costs, and compliance and data integrity concerns.
NSA's decision to suspend the CDR program does not mean
that Congress should allow the CDR authority to expire. Rather,
that decision shows that the executive branch is a responsible
steward of the authority Congress affords it.
As technology changes, our adversaries' tradecraft and
communication habits continue to evolve and adapt. In light of
this dynamic environment, NSA supports reauthorization of the
CDR provision so that the Government will retain this
potentially valuable tool, should it prove useful in the
future.
Thank you again for the opportunity to testify today. I
look forward to your questions.
[The joint statement of Mr. Wiegmann, Mr. Orlando, and Ms.
Morgan follows:]
JOINT STATEMENT OF BRAD WIEGMANN, MICHAEL ORLANDO, AND SUSAN
MORGAN
Introduction
Chairman Nadler, Ranking Member Collins, distinguished
Members of the Committee, thank you for the opportunity to
testify today about four important provisions of the Foreign
Intelligence Surveillance Act (``FISA'') that will expire at
the end of this year unless reauthorized by Congress. As
indicated in the Director of National Intelligence's letter to
this Committee, the Administration strongly supports permanent
reauthorization of these provisions.
Three of the authorities--the roving wiretap, business
records, and lone wolf provisions--have been part of FISA for
well over a decade and have been renewed by Congress multiple
times, most recently in the USA FREEDOM Act of 2015 (``FREEDOM
Act''). Before that, these same authorities were reauthorized
multiple times between 2005 and 2011, each time following
extensive congressional review and deliberation. Each renewal
gained bipartisan support.
Two of the authorities, the ``roving wiretap'' and
``business records'' provisions, have been part of FISA since
2001. These provisions are important in national security
investigations and are comparable to provisions available in
ordinary criminal investigations. The roving wiretap authority
enables the Government to continue surveilling a court-approved
national security target when the target takes steps to thwart
the surveillance. The business records authority allows the
Government to collect records, papers, and other documents that
are relevant to a national security investigation. The
Government has used these important national security
authorities judiciously, with the approval of the Foreign
Intelligence Surveillance Court (``FISC''), and in the interest
of national security.
The ``lone wolf'' provision was added to FISA in 2004 to
close a gap in the Government's ability to surveil a foreign
person who is engaged in international terrorism or
international proliferation of weapons of mass destruction, but
who lacks traditional connections to a terrorist group or other
foreign power. Without the authority, the Government could not
rely on FISA to respond to those kinds of threats. Although the
Government has not used the lone wolf provision to date, it is
critical this authority remain in the Government's toolkit for
the future, as international terrorist groups increasingly seek
to inspire individuals to carry out attacks, without
necessarily providing the kind of coordination or support that
would authorize traditional FISA surveillance.
The fourth authority--the Call Detail Records (``CDR'')
provision--permits the targeted collection of telephony
metadata but not the content of any communications. Congress
added this authority to FISA four years ago in the FREEDOM Act
as one of several significant FISA reforms designed to enhance
privacy and civil liberties. It replaced the National Security
Agency's (``NSA'') bulk telephony metadata collection program
with a new legal authority whereby the bulk metadata would
remain with the telecommunications service providers. As this
Committee's 2015 report described, the CDR authority provides a
``narrowly-tailored mechanism for the targeted collection of
telephone metadata for possible connections between foreign
powers or agents of foreign powers and others as part of an
authorized investigation to protect against international
terrorism.'' H. Rep. 114-109, at 17 (2015). The FREEDOM Act
also permanently banned bulk collection under FISA's business
records and pen-trap provisions and under the National Security
Letter statutes. As this Committee is aware, the NSA recently
discontinued the CDR program for technical and operational
reasons. But the CDR program retains the potential to be a
source of valuable foreign intelligence information. The CDR
program may be needed again in the future, should circumstances
change. NSA's careful approach to the program, and the legal
obligations imposed by the FREEDOM Act in the form of judicial
oversight, legislative oversight, and transparency, support the
reauthorization of the CDR program.
We urge the Committee to consider permanently reauthorizing
these authorities based not only on the Government's
demonstrated record and the importance of the authorities to
national security, but also on the significant reforms
contained in the FREEDOM Act. These include authorizing the
FISC to appoint amici curiae to address privacy and civil
liberties concerns and enhancing public transparency and
reporting requirements under FISA. Four years ago, the FREEDOM
Act was passed after extensive oversight and comprehensive
hearings, and it was reported out of this Committee with
unanimous support. In the wake of repeated reviews and
bipartisan authorizations over nearly two decades, the
Administration's view is that the time has come for Congress to
extend these authorities permanently.
Roving Wiretap
First, Congress should permanently reauthorize the ``roving
wiretap'' provision. The authority outlined in this provision
is similar to the roving wiretap authority that has been
available since 1986 in criminal investigations, under the
Wiretap Act, and which has repeatedly been upheld in the
courts.
The ``roving wiretap'' provision provides the Government an
effective tool to use in response to adversaries attempting to
thwart detection. To understand the importance of this
authority, the Committee must consider how FISA functions in
ordinary, non-roving cases, and how roving authority is
necessary for targets who try to avoid surveillance. Under both
regular and roving FISA authority, the Government's application
for a court order must identify the target of the surveillance
with particularity and must establish probable cause that the
target is a foreign power or an agent of a foreign power. If
the Court approves the application, it issues one order to the
Government and a ``secondary'' order to a third-party--such as
a telephone company--directing it to assist the Government in
conducting the wiretap. See 50 U.S.C. 1805(c)(1-2). The
secondary order is necessary because, in most cases, the
Government needs the assistance of a company to implement the
surveillance. In an ordinary case, if the target switches to a
new communications service provider, the Government must submit
a new application and obtain a new set of FISA orders. However,
where the Government can demonstrate in advance to the FISA
Court that the target's actions may have the effect of
thwarting surveillance, such as by rapidly and repeatedly
changing providers, FISA's roving wiretap provision allows the
FISC to issue a generic secondary order that the Government can
serve on the new provider to commence surveillance without
first going back to the Court. See 50 U.S.C. 1805(c)(2)(B). The
Government's probable cause showing that the target is an agent
of a foreign power remains the same, and the Government must
also demonstrate to the FISC, normally within 10 days of
initiating surveillance of the new facility, probable cause
that the specific target is using, or is about to use, the new
facility. See 50 U.S.C. 1805(c)(3).
The roving wiretap authority has proven to be an important
intelligence-gathering tool. The Government has used the
authority in a relatively small number of cases each year.
Those cases tend to involve highly-trained foreign intelligence
officers operating within the United States, or other important
investigative targets, including terrorism-related targets, who
have shown a propensity to engage in activities deliberately
designed to thwart surveillance. Similar authority designed to
prevent suspects from thwarting surveillance has been a
permanent part of our criminal law for over thirty years, and
this provision has been renewed as part of FISA repeatedly
since 2001 without controversy or evidence of abuse. It remains
an important tool, and we strongly support permanent
reauthorization.
Business Records
Second, we also support permanent reauthorization of the
so-called ``business records'' provision, which was enacted as
section 215 of the USA PATRIOT Act in 2001. This provision
authorizes the Government to apply to the FISC for an order
directing the production of business records or other tangible
things that are relevant to an authorized national security
investigation. It allows the Government to obtain in a national
security investigation many of the same types of records and
other tangible things that the Government can obtain through a
grand jury subpoena in an ordinary criminal investigation. The
Government has used the business records provision to obtain,
for example, driver's license records, hotel records, car
rental records, apartment leasing records, and the like. An
application for such records, and other sensitive records, must
come from the FBI Director, Deputy Director, or Executive
Assistant Director. See 50 U.S.C. 1861(a)(3).
Importantly, the business records provision contains
several statutory safeguards. To obtain a FISC order approving
a business records application, the Government must make a
showing to the FISC that (1) it is seeking information in an
authorized national security investigation conducted pursuant
to guidelines approved by the Attorney General; (2) where the
investigative target is a U.S. person, the Government has
demonstrated that the investigation is not based solely on
activities protected by the First Amendment; and (3) the
Government must demonstrate that the information sought is
relevant to the authorized investigation. See 50 U.S.C. 1861(a)
(1-2). The Government must also adhere to Attorney General
guidelines and minimization procedures that limit the retention
and dissemination of any information collected concerning U.S.
persons. Id. 1861(a)(2)(A) & (g). Recipients of an order
seeking business records also have the opportunity to challenge
the legality of the order in court, although, to date, no
recipient has done so.
Some criticize the business records provisions as running
afoul of the Fourth amendment because business records orders
are not issued under a ``probable cause'' standard. But an
order issued under the business records provision does not
authorize the Government to enter premises, or to search for or
seize records or other tangible things. Thus, the Fourth
Amendment's probable cause standard generally does not apply.
Rather, the records the Government is authorized to obtain--
pursuant to a FISC order--are similar to those that the
Government could obtain in ordinary criminal or civil
investigations--without any court order in most instances--
pursuant to a grand jury subpoena in an ordinary criminal case,
or pursuant to an administrative subpoena in a civil case. Like
a grand jury subpoena or an administrative subpoena, a business
records order merely requires the recipient to identify and
produce responsive records or other tangible things.
Critics have also questioned the need for the business
records provision in view of the Government's ability to seek
similar records pursuant to a grand jury subpoena. But not
every national security investigation involves criminal
activity; thus, a grand jury subpoena is not always available
to the Government. Additionally, business records orders issued
by the FISC are often supported by classified information that
cannot be disclosed to the grand jury and cannot be
declassified without compromising important national security
interests. Thus, reauthorization of this provision remains
critically important.
To be sure, this authority has generated substantial
controversy because it was employed, with FISC approval, to
support NSA's bulk telephony metadata collection program.
However, that program has been terminated and replaced by the
more targeted collection of telephony metadata authorized under
the CDR provisions of the FREEDOM Act, as discussed below. The
FREEDOM Act permanently banned bulk collection altogether under
the business records authority and required the use of a
``specific selection term'' to justify an application for a
business records order. The law defines ``specific selection
term'' as a term that ``specifically identifies a person,
account, address, or personal device, or any other specific
identifier [that] is used to limit, to the greatest extent
reasonably practicable, the scope of tangible things sought,
consistent with the purpose for seeking the tangible things.''
50 U.S.C. 1861(k)(4)(A)(i). It does not include terms, or a
combination of terms, that are not so limited. See id.
1861(k)(4)(A)(ii). Moreover, the FREEDOM Act provided that the
FISC may evaluate the adequacy of minimization procedures
issued under the business records provisions, and may require
additional, particularized minimization procedures beyond those
otherwise required, with regard to the production, retention,
or dissemination of certain business records, including
requiring the destruction of such records within a reasonable
period of time. See id. 1861(g)(3).
The Government has used the business records authority
judiciously. On average, between 2015 and 2018, the Government
sought and obtained records under this provision less than 76
times per year. The number of business records applications
approved has decreased every year since 2012. Many of these
investigations seek records that are outside the scope of the
National Security Letter statutes, and often a business records
order is sought because national security interests preclude
the use of less secure criminal authorities, or because there
may be no criminal investigation underway. Given the importance
of the authority, the absence of any evidence of abuse, and the
additional safeguards Congress imposed in 2015, we urge the
Committee to support permanent reauthorization of this
provision.
Lone Wolf
The third expiring provision is the so-called ``lone wolf''
provision of FISA. It allows the FISC to authorize surveillance
of non-United States persons engaged in international terrorism
or the international proliferation of weapons of mass
destruction, without the need to show that the target is acting
on behalf of a particular terrorist group or other foreign
power.
The ``lone wolf'' provision is contained within the
definition of an ``agent of a foreign power'' in FISA.
Electronic surveillance under FISA can only be directed at a
``foreign power'' or ``agent of a foreign power,'' as defined
in the statute. See 50 U.S.C. 1804(a)(3)(A). A foreign power
under FISA is defined for counterterrorism purposes to include
a group engaged in international terrorism. Accordingly,
without the lone wolf provision, the Government would need to
establish that a terrorism-related surveillance target was an
agent of an international terrorist group. The lone wolf
provision specifies that a foreign individual is also
considered an ``agent of a foreign power'' under FISA if the
individual is engaged in international terrorism--even if the
individual is not directly connected to a foreign terrorist
group.
There are two key points to understand about this
provision. First, it applies only to non-U.S. persons (not to
American citizens or aliens lawfully admitted for permanent
residence), see 50 U.S.C. 1801(b)(1)(C), and second, only when
they engage or prepare to engage in ``international
terrorism,'' see id. 1801(c). In practice, to establish the
probable cause necessary to secure a FISC order under the lone
wolf provision, the Government must know a great deal about the
target, including the target's purpose and plans for terrorist
activity, to satisfy the definition of ``international
terrorism.''
Although the Government has not used the lone wolf
authority to date, it fills an important gap in the
Government's collection capabilities. The provision allows for
the surveillance of a foreign terrorist who might be inspired
by a foreign group, but who is not technically an agent of that
group. For example, the provision would allow for surveillance
of a foreign person who has self-radicalized through internet
propaganda of a foreign terrorist organization, or a known
international terrorist who severs his connection with a
terrorist group. The Government's decision not to employ this
authority to date does not mean that it should be abandoned. To
the contrary, it shows that the Government will use this
provision only where necessary and legally available. Terrorist
groups like ISIS and al-Qaida actively seek to encourage lone
wolf attacks. The continued availability of the lone wolf
provision ensures the Government retains the authority to
surveil isolated foreign terrorist actors who are inspired, but
not directed by, foreign terrorist groups.
Call Detail Records
Finally, as we have explained, in addition to reauthorizing
these longstanding provisions of FISA in 2015, the FREEDOM Act
banned bulk collection and established a new, narrowly-tailored
mechanism for the targeted collection of CDRs from U.S.
telecommunications service providers. The new provisions were
enacted after comprehensive oversight, including hearings
addressing recommendations of a presidentially-appointed group
of outside experts and the Privacy and Civil Liberties
Oversight Board, which weighed in on the privacy and civil
liberties effects of the authorities and their importance to
national security.
The CDR provision represents a carefully tailored balance
between the interest in individual privacy and the need to
protect against the activities of international terrorist
groups. In support of an authorized counterterrorism
investigation, the CDR authority provides a way for Government
investigators, pursuant to a FISC order, to identify contacts
of suspected terrorists who may be within the United States. It
permits the Government to seek an order from the FISC
compelling the production on an ongoing basis of CDR
information based on a specific selection term, such as a
telephone number. The Government must demonstrate to the FISC
that (1) there are reasonable grounds to believe that the data
sought is relevant to an authorized counterterrorism
investigation; and (2) there is a reasonable, articulable
suspicion that the specific selection term is associated with a
foreign power or an agent of a foreign power engaged in
international terrorism or activities in preparation of
international terrorism. See 50 U.S.C. 1861(b)(2)(C).
Critically, the provision authorizes the collection of certain
metadata associated with telephone calls, such as the
originating or terminating telephone number and date and time
of a call, but does not authorize collecting the content of any
communication, the name, address, or financial information of a
subscriber or customer, or cell site location or global
positioning system information. See id. 1861(k)(3). With FISC
approval, the Government may require the production of CDRs two
``hops'' from the seed term--i.e., the CDR's associated with
the initial specific selection term and those associated with
the CDRs identified in the initial ``hop.'' See id.
1861(c)(2)(F).
The Government has used this authority responsibly. In
2018, the NSA identified certain technical irregularities in
data it received from telecommunications service providers
under the CDR provision. Because it was not feasible for NSA to
resolve the issue technologically, in May of 2018, NSA began
the process of deleting all CDR data that it had received since
2015. Then, after balancing the program's intelligence value,
associated costs, and compliance and data integrity concerns
caused by the unique complexities of using these company-
generated business records for intelligence purposes, NSA
suspended the CDR program.
NSA's decision to suspend the CDR program does not mean
that Congress should allow the CDR authority to expire. Rather,
that decision shows that the Executive Branch is a responsible
steward of the authority Congress afforded it, and that the
numerous constraints on the Government imposed by the FREEDOM
Act, including oversight by the FISC, are demanding and
effective. As technology changes, our adversaries' tradecraft
and communications habits continue to evolve and adapt. In
light of this dynamic environment, the Administration supports
reauthorization of the CDR provision so that the Government
will retain this potentially valuable tool should it prove
useful in the future.
The Administration looks forward to working with this
Committee and the rest of the Congress to reauthorize on a
permanent basis these important national security provisions.
Chairman Nadler. Thank you very much for your testimony.
We will now proceed under the 5-minute Rule with questions.
I will begin by recognizing myself for 5 minutes.
Ms. Morgan, I want to ask you about the Call Detail Records
Program. In 2014, prior to the passage of the USA FREEDOM Act,
the Privacy and Civil Liberties Oversight Board reviewed the
efficacy of the NSA's use of section 215 to collect ``detail
records.''
The board concluded rather starkly, and I quote, ``We have
not identified a single instance involving a threat to the
United States in which the telephone records program made a
concrete difference in the outcome of a counterterrorism
investigation. Moreover, we are aware of no instance in which
the program directly contributed to the discovery of a
previously unknown terrorist plot or the disruption of a
terrorist attack.''
The board continued, ``Even in those instances where
telephone records collected under section 215 offered
additional information about the contacts of a known terrorism
suspect, in nearly all cases, the benefits provided have been
minimal, generally limited to corroborating information that
was obtained independently by the FBI.''
In short, the board found this very complicated program to
be of very little use to the intelligence community.
Ms. Morgan, is there any reason to doubt the accuracy of
the board's conclusions in 2014?
Ms. Morgan. Sir, thank you. Thank you for your question.
So, I just want to start out by saying I think a metric in
terms of determining the value of a particular intelligence
program, the number of attacks it has prevented, is but one
metric, or the number of attacks it has contributed to
identifying is but one metric that you could consider, but it
is certainly not the only metric.
I came into the agency in the summer of 2001 as an
intelligence analyst, and I could tell you that as an
intelligence analyst, you are typically dealing with disparate
pieces of information, and you are trying to pull them together
in different ways to create a picture to understand what your
target or adversary might be doing in response to a valid
foreign intelligence requirement.
So, when we looked at the CDR program, as it existed up
until we suspended it, we did look and evaluate the foreign
intelligence value that the program did provide. It did
certainly provide value.
However, you have to weigh that in the context of
everything else that we are doing, and you have to weigh that
against not only the data integrity and compliance concerns
that we face, but you also have to weigh that against the
resources and the costs that we are expending, as we want to be
a good steward of the taxpayers' dollars and resources.
So, I would say that it is very difficult to--it is not
ever a black-and-white answer when you are trying to analyze
the value of a particular activity. There is a lot of factors
that go into that, and I could get a piece of information today
that 7 or 10 or 11 steps down the line later might actually
prove to be really valuable.
Chairman Nadler. The CDR program was reconstituted under
the USA FREEDOM Act after its passage in 2015. Now please help
me update the board's findings. Sitting here today, can the NSA
cite any instance involving a threat to the United States in
which the CDR program made a concrete difference in the outcome
of a counterterrorist investigation?
Ms. Morgan. Sir, as I alluded to earlier, the measure of
value isn't necessarily--
Chairman Nadler. The--
Ms. Morgan. Yes, sir?
Chairman Nadler. I heard that. You don't have to repeat it.
My time is limited. So, the answer is no or yes?
Ms. Morgan. In an open setting, I am really leery to get
into specific examples of the value that the program--
Chairman Nadler. I asked you a specific question.
Ms. Morgan. Yes, sir.
Chairman Nadler. Can the NSA cite any instance involving a
threat to the U.S. in which the CDR program made a concrete
difference in the outcome of a counterterrorist investigation?
Ms. Morgan. Sir, respectfully, I would say that is a
complicated question that to effectively answer it, I need to
go into classified information.
Chairman Nadler. Okay. Is the NSA aware of any instance in
which the program directly contributed to the discovery of a
previously unknown terrorist plot or the disruption of a
terrorist attack? Same answer?
Ms. Morgan. Again, sir. I would like to, if I may?
Chairman Nadler. Go ahead.
Ms. Morgan. I would like to say that I don't think a metric
of a program in terms of its value should be really necessarily
focused on whether or not it prevented or stopped a terrorist
attack.
Chairman Nadler. Okay. After the CDR program was
reconstituted under the USA FREEDOM Act, the NSA realized it
had two problems on its hands. First, it was pulling in phone
records that it should not have received, and second, it had no
way of untangling the good data from the bad. Is that a fair
assessment of the problem?
Ms. Morgan. Yes, sir.
Chairman Nadler. On June 28th of last year, the NSA decided
to purge its entire database, nearly 3 years of call detail
records. Is that correct?
Ms. Morgan. Yes, sir.
Chairman Nadler. In the press release announcing the
destruction of those records, the NSA stated that it had
contacted the appropriate congressional committees of its
intent to do so. Do you happen to know if the NSA contacted the
House Judiciary Committee in advance of that press release?
Ms. Morgan. Sir, I apologize. I have to take that back. I
don't have those specifics.
Chairman Nadler. Okay. On August 16, 2019, the NSA
decommissioned the CDR program altogether. According to former
Director Coats, the intelligence community weighed the costs
against the benefits, saw that the benefits are minimal, and
decided to discontinue the program. Is that correct?
Ms. Morgan. Yes, sir.
Chairman Nadler. Okay. To sum up, the CDR program had its
origins in an extralegal, Bush-era spying program. From the
moment it was brought under FISA--from the moment it was
brought under FISA in 2006 to the moment it was discontinued in
2019, it did not once make a material difference to a single
counterterrorism investigation, at least that you can tell us
about.
One last question, Ms. Morgan. Why has the Trump
Administration asked us to reorganize--I am sorry. In light of
this record, why has the Administration asked us to reauthorize
this program?
Ms. Morgan. Sir, as an intelligence professional, I will
tell you that I want to have every tool available in my
toolbox. I am not able to, although I wish I could, predict
what the future situation is going to hold. Should I confront a
situation where this tool would valuable to protect
international security, protect us against terrorist
activities, I would like the tool to remain available.
Chairman Nadler. Okay. Let me just say that is a very good
effort, but I think the Administration will have to do a little
better than that, than to say that we have a perhaps useless
program, but we want to reauthorize it because maybe some day
it will do some good. Have to give it some more basis to
believe, in fact, that it has a future utility.
My time is expired. The gentleman from Georgia, Mr.
Collins.
Mr. Collins. Take as much time as you need there, Mr.
Chairman. You did yesterday.
One of the things I want to point out, Ms. Morgan, is
normally we have had the secure--or exec session or a
classified briefing after this. We don't have that today. So, I
understand your questions here. I don't know why we didn't, but
we are choosing not to do that today.
We have done this in the past, and it would have been good
to have. I think you would probably have been able to answer
questions in classified briefings much better.
I do appreciate Chairman actually acknowledging me for my 5
minutes today, and I appreciate that.
What the session--Ms. Morgan, what session-identifying
information collected under the Call Detail Records Program, if
we terminate that and allow the program to fast-forward expire,
a terrorist decides to communicate over encrypted app, is the
ability to collect session-identifying information lost with
respect to encrypted communications?
Ms. Morgan. Sir, I apologize. In an open hearing, I can't
get into capabilities--
Mr. Collins. Thus, the reason it would have been nice to
have had a classified hearing after this as well, which we
could have gotten into this.
Ms. Morgan. Sir, I am absolutely willing to arrange for a
time that is convenient for you and the rest of the Committee
to talk about this in a classified--
Mr. Collins. Now that is fine. We have had all year, and we
are here now. You know, I guess we just have to deal with it.
So that is fine.
Mr. Wiegmann, does the criminal Brady requirement imposed
on prosecutors to divulge exculpatory evidence favorable to the
defendant also apply when practicing before a FISA court? In
other words, even though the proceedings are ex parte, is there
any requirement from the Department to inform the court of
evidence favorable to the target of the FISA surveillance that
could Act to initiate a probable cause that the person is an
agent of a foreign power?
Mr. Wiegmann. I believe we do provide the full picture in
terms of what the information is available when we are applying
you are saying regular Title I FISA. For example, we provide
the full picture, and that would include it is not really Brady
as a principle. Because that is a principle of applicability in
a criminal case, not in a FISA application.
We do disclose, I think as an ordinary course, to the court
the information that would suggest the person is an agent and
any information that suggests the contrary. I believe that is
our practice.
Mr. Collins. So, if you didn't disclose exculpatory
information, you chose to keep it as beginning to be more, this
is a very real concern because that is lying to the court.
Correct?
Mr. Wiegmann. Really, you would have to know the facts of
that particular case to--
Mr. Collins. Well, if you had exculpatory information, you
didn't, as you just said, provide a full picture to the court.
If you don't provide a full picture, would that not be a
problem?
Mr. Wiegmann. I think the effort is to provide a full
picture to the court, but not to conceal any information from
the court.
Mr. Collins. Not my question. Not my question. Not the
effort. If it happened, is that a problem? Is that something
that you would not say should happen?
Mr. Wiegmann. In general, I think we would want to provide
all the information, all the relevant information to the court.
Absolutely, sir.
Mr. Collins. Okay. So, in general, you say it is okay. In
cases where you don't want to disclose it, you say it is okay?
Mr. Wiegmann. No, sir. No, sir. Maybe I misspoke in saying
in general. I do believe we should disclose all relevant
information to the court in applying for a FISA.
Mr. Collins. If that is not, that is abuse of the court
process?
Mr. Wiegmann. I don't know if I would use those exact
terms, but it is something that we work--
Mr. Collins. What would you call it?
Mr. Wiegmann. Well, it is something that we work hard to do
at DOJ, to provide all the information relevant to the court.
Mr. Collins. If it did not happen and to any court, even
this court as well, if it did not happen, that is a failure.
Correct?
Mr. Wiegmann. It is something that we don't want to happen.
Mr. Collins. A failure. The elephant in the room is the
Carter Page FISA, the surveillance sought and obtained by both
the FBI and DOJ on the Presidential campaign volunteer. Have
you conducted a Woods review of the Carter Page FISA to
determine whether each and every fact was verified by some
underlying evidence? And has anyone ever been held accountable
for unlawful disclosure of the Carter Page FISA application to
the media?
Mr. Wiegmann. Sir, I really can't comment on that in any
way. Among other reasons, I don't know anything about that
particular case. So, I can't comment on it today.
Mr. Collins. You are not saying that my question just prior
to this also hits at this very issue as well? This is an issue
that is now not a secret court issue. This is not some--this
has actually been put into the realm of the public and the
media, if you are not using the information completely in a
file.
Mr. Wiegmann. I am not sure what your question is.
Mr. Collins. I understand you are not going to answer it
either way. The problem is, though, and I think Chairman and I
both do agree on some things, and this is one of the areas we
agree, that there is a problem with the FISA. We have just not
talked about it this year because it is not in the political
narrative we are talking about.
There is a problem here that needs to be addressed. There
has to be all and complete evidence brought to the FISA court,
not just in general, as you said. I appreciate your concern of
misspeaking.
The issue here is that we have got to make sure that this
is a process which is open for everybody. Because there is not
a person listening to this hearing today, whether apolitical or
very political, this is not something we need to have the
probability at the highest level of our intelligence
communities and DOJ to have a political agenda or leave out
stuff when they go to a court in which there is ex parte
proceedings and not anybody available to correct that or to
correct the record.
Then to actually have it leaked later in a sense in which
no accountability has taken place so far. I think this is the
issue.
I will go back. Hopefully, at some point, we will get a
classified briefing, but my time has expired. I yield back.
Chairman Nadler. Let me just say that the minority staff
worked with the majority staff in setting up this hearing, and
the minority staff has been working with the majority staff in
setting up a classified briefing, which will be scheduled.
Mr. Collins. Again, Mr. Chairman, I appreciate that. Also
at a certain time, it has always been scheduled together, where
we could have all of our stuff together and the witnesses here.
I was just pointing out a simple fact.
I appreciate Chairman feeling he had the need to discuss
the bipartisanship, which was so evident on this, but so
lacking yesterday.
Chairman Nadler. Well, I have also commented I am not aware
of any terrible problem with the FISA court and specifically
not with the Carter Page application.
Mr. Collins. Because we have not talked about it until
today. I would move on.
Chairman Nadler. Yes. The gentlelady from California?
Ms. Lofgren. Thank you, Mr. Chairman.
You know, being in this room reminds me of after 9/11, and
we actually came in on the weekend, and we sat around the table
that you are--the witness table, and Mr. Sensenbrenner was
chair of the committee. It was a bipartisan group, trying to
figure out what are we going to put together.
I participated in that, and we came up with a bill. We
didn't know how it would work at the time, but we knew we
needed to do some things, and we did as a bipartisan group. It
is entirely appropriate that we review what we did so long ago
to make sure that it is working as we had hoped. It is
obviously an important balance.
I mean, we need to keep our country safe. Everyone agrees
with that. We also have strong incentive to make sure that the
rights of Americans are fully protected and respected. I know
that all of you would agree with that.
One of the questions that I have on these proceedings is
how the court rulings having to do with privacy are integrated,
if at all, into your proceedings. For example, the recent
Supreme Court decision in Carpenter really challenged and
overturned the predigital age notions of the kinds of
information that Americans have a Fourth amendment right to
privacy in.
Prior to Carpenter, law enforcement considered cell site
geolocation data to be a business record and stored under the
Communications Act. It didn't require a probable cause warrant.
Now Carpenter, you need a probable cause warrant.
Has that been translated into the same kind of records as
215 would allow? Do you need probable cause to get geolocation
records, as we do in the criminal matter? Who can answer that?
Mr. Wiegmann. Yes, I can take that. So, you are absolutely
right. The Carpenter decision, an important decision that in
the context of a criminal case held that you needed a warrant
in order to obtain historic cell site location information. So,
that is not the same as GPS.
Ms. Lofgren. Correct.
Mr. Wiegmann. Iformation concerning a cell tower and so
forth. So, they specifically in that Supreme Court case
distinguished the national security context and said the ruling
was only applicable in the context of a criminal case.
Ms. Lofgren. I understand that. I understand.
Mr. Wiegmann. We have given some thought to the issue of,
okay, how does the Carpenter case apply in, let us say, the
business records context? To really go into the detail,
unfortunately, as to how we are applying it in that context, I
would have to get into classified information, but I am happy
to do that and provide that information to you as to what our
policy is with respect to business records and how Carpenter
applies to it.
So, again, I am happy to do that for you, simply.
Ms. Lofgren. So, if I can just probe, what you are saying
is you are looking at it. It is not the belief of the
Department that Carpenter actually applies to what you are
doing, but that you are considering the Fourth amendment
implications for what--how you are proceeding. Would that be
accurate?
Mr. Wiegmann. I think it is a fair summary to say it is not
controlling, but certainly something that we are giving
serious--have given serious thought to in terms of how we apply
it to our national security authorities, even though it is not
controlling.
Ms. Lofgren. You know, one of the things that I have had
concern about is the collection of content under various
provisions of our FISA efforts, and I do think it is important
to note that if you get enough information, even if it is not
called content, it actually provides tremendous insight into
the details of privacy rights of Americans.
Can you, Ms. Morgan, talk about how much content that you
obtain through this program?
Ms. Morgan. Thank you for the question, ma'am.
So, I just want to emphasize that under NSA's program, the
Call Detail Records Program, we don't receive any content at
all. We receive things like ``Telephone number A called
telephone number B at this date and time for this duration.''
That is--we are not receiving any content, and we are not
receiving any locational information either.
Ms. Lofgren. Let me ask in terms of--and maybe you can't
answer this in a public session. In terms of text messages,
pictures, emails, and the like, what is the universe of what
you are collecting?
Ms. Morgan. So, ma'am, again, under the CDR program, under
the USA FREEDOM Act, we are not collecting any content. I am
happy in a closed session to give you more insight into--
Ms. Lofgren. Right. Under 215, none of that would be
collected?
Ms. Morgan. I will speak to NSA CDR provision. We are not
collecting any content.
Mr. Wiegmann. It is a little bit trickier in the context of
the traditional uses of 215 because whether you call something
content, like so is a driver's license record content or not?
It is certainly substantive information. It is a third-party
business record.
Ms. Lofgren. Yes.
Mr. Wiegmann. It has the information about the individual,
or that a terrorist or suspected terrorist stayed at particular
hotel on a particular night, that is the type of information
that we may get.
Ms. Lofgren. So under business records, you would get all
of that?
Mr. Wiegmann. That is right. We would get that information.
It is not that it is not communications content, if that is
what you are thinking.
Ms. Lofgren. I understand.
Mr. Wiegmann. We can't get substance of telephone calls or
anything like that.
Ms. Lofgren. My time has expired, Mr. Chairman. I thank
you.
Hopefully, as we will when we originally crafted these
measures, we all care about civil liberties. We will craft
together amendments to it.
I yield back.
Chairman Nadler. The gentlelady yields back. The gentleman
from Ohio?
Mr. Chabot. Thank you, Mr. Chairman. Thank you for holding
this oversight hearing so that we can get a better
understanding of FISA provisions and procedures, some of which
expire in a few months on December 15th.
For nearly a year since the start of this Congress, the
majority has had this Committee and the American public endure
their issuance of subpoena after subpoena, holding hearing
after hearing, and passing resolution after resolution
regarding an investigation that has long been completed by
Special Counsel Robert Mueller.
Yesterday, Corey Lewandowski appeared before our Committee
for several hours and again answered questions. He has already
testified before Congress a number of times, but the result
remains the same. The President neither conspired nor colluded
with the Russians to impact or influence the 2016 presidential
election.
Now the Russians did try to interfere. They set up fake
Facebook accounts, et cetera, but that was under the Obama
Administration's watch, not Trump's. So if there was
insufficient effort to protect America from the Russians, it
was Obama's fault, not Trump's.
Today, the American people might finally get some insight
on how the original FISA application that then-FBI Director Jim
Comey and other senior FBI officials obtained at the behest of
the Democratic Committee and the Hillary Clinton campaign, how
that began.
Mr. Orlando, let me begin with you. Could you please tell
us under what circumstances the FBI might seek a FISA warrant
to investigate an American citizen?
Mr. Orlando. Before an FBI can seek a FISA warrant on an
American person, we first need a case open on that individual,
where we need specific and articulable facts that person poses
a threat to national security, which he has to have some sort
of tie to a foreign power, generally as an agent of a foreign
power or tie to a foreign terrorist organization.
Mr. Chabot. Thank you.
And in order to initiate such a counterintelligence
investigation, senior FBI officials must apply for and obtain a
FISA warrant to collect the information related to these
allegations. Is that correct?
Mr. Orlando. You are seeking a FISA warrant. There is an
internal process of how we do that, and it elevates up to the
Department of Justice, then to go over to the court.
Mr. Chabot. Would it be proper for FBI agents to attempt to
obtain FISA warrants to investigate senior Trump campaign
advisers simply because they hated Donald Trump?
Mr. Orlando. That would not be appropriate. As I have
stated earlier, for us to open a case, there needs to be
specific and articulable facts that the person poses a threat
to national security.
Mr. Chabot. Would it be proper for FBI agents to open a
counterintelligence investigation based upon hyper-partisan
memos that were written by individuals linked to the opponent's
campaign, in this case, the Clinton campaign?
Mr. Orlando. Back to my same answer. Sure, we would have to
show that you are an agent of a foreign power.
Mr. Chabot. Thank you.
As far as you are aware, do the FBI and other intelligence
officials verify the truthfulness of the allegations in this
field dossier about then-candidate Donald Trump?
Mr. Orlando. Sir, this is outside my purview.
Mr. Chabot. Okay. Even though the information was never
verified, and most of it has been proven to be false, the intel
community relied on it to get a FISA application to spy on the
Trump campaign. Is that basically what happened?
Mr. Orlando. Again, sir, that is outside my purview.
Mr. Chabot. Thanks.
Mr. Orlando, tell me, what sort of information should an
agent use to open a counterintelligence investigation?
Mr. Orlando. Really, a wide variety of information that we
can use. There just simply needs to be some sort of allegation
that has specific and articulable facts that believes there is
a national security investigation. When an agent does that,
there is a supervisor that reviews that and approves that
opening of the case. In sensitive matters, it elevates the
approval.
Mr. Chabot. Thank you.
I have got a lot more questions, but you know, it appears
to me that faulty information was used to investigate the Trump
campaign officials' bipartisan agents. I just think it is
strange that just a few weeks ago, Inspector General Horowitz
issued a scathing report regarding the mishandling of sensitive
information by James Comey.
It appears that nothing will happen relative to Mr. Comey.
He won't be brought before this Committee to answer for the
allegations in his report, and Mr. Horowitz won't have an
opportunity to further testify as to what was really happening
at the FBI when senior officials decided to open the
investigation.
That is really a shame because the American people deserve
to learn the truth, the truth about how it was that the
Democratic National Committee and the Clinton campaign were
able to peddle a fake dossier to obtain a FISA warrant and turn
it into an unnecessary, expensive, time-consuming investigation
in order to undermine an American presidency. The American
people deserve better.
I yield to the gentleman.
Mr. Jordan. Mr. Chairman, could I actually ask a question?
I know the gentleman's time has expired.
Chairman Nadler. The gentleman's time has expired. The--
Mr. Jordan. Could I ask the chair a question, just on
something the gentleman just mentioned?
Chairman Nadler. Is it a parliamentary inquiry?
Mr. Jordan. It is a question for Chairman of the committee.
So, Mr. Chairman, the Ranking Members and the chairmen of the
Oversight and Judiciary Committees received a letter from Mr.
Horowitz last week, indicating that he has now turned the FISA
report over to Mr. Barr in the Justice Department.
Have you had any contact with Mr. Horowitz about when he
might be in front of this Committee to answer questions about
the very subject we are learning about today?
Chairman Nadler. We will review any such letter.
The gentleman from--the gentlelady from Texas?
Ms. Jackson Lee. Good morning to the witnesses, and thank
you very much.
Let me just ask a general question first, Mr. Wiegmann.
Having been here on the day, being here in the Congress on 9/
11/2001, just commemorating the aura of that day just about a
week ago, is the FISA process an important process for national
security, in your opinion?
Mr. Wiegmann. Yes, ma'am.
Ms. Jackson Lee. Mr. Orlando?
Mr. Orlando. Yes, ma'am. It is a critical tool for us to
disrupt threats to the United States.
Ms. Jackson Lee. Ms. Morgan?
Ms. Morgan. Yes, ma'am.
Ms. Jackson Lee. Now, let me start with Mr. Wiegmann on the
FISA opinions. The USA FREEDOM Act directed the Government to
make all significant or novel foreign intelligence surveillance
court opinions publicly available to the greatest extent
practical. It is clear from the written text and from
statements from Members during floor debate that this was to
include opinions written before the passage of the USA FREEDOM.
Nonetheless, only a handful of opinions from the court
released following passage of the bill have been published. How
does the ODNI or the DOJ determine which opinions are
significant or novel enough to be published?
Mr. Wiegmann. So, in terms of how we decide what is
significant and novel, the way I think about it is there are
plenty of opinions that are only going to be applying ordinary
legal principles to the facts, so let us say as to a particular
case, deciding whether a particular individual--whether there
is probable cause that they are an agent of a foreign power.
There is nothing particularly novel about that exercise. It is
just very fact intensive.
Not much would be released anyway if we were to release the
opinion because it would only be application of facts, which
are classified. So there is not much benefit to the public. So
that is the type of case where we would not consider it
significant or novel.
If it was, instead, some new interpretation of the act,
certainly anything that involved an amicus, something about how
the law applies more broadly, we would consider that to be
significant and novel. Those are the opinions that we provide
to this Committee and that we have an obligation under the
FREEDOM Act to review for declassification.
Ms. Jackson Lee. Do you know how many opinions have
remained completely secret because of the definitions you are
using?
Mr. Wiegmann. There are certainly opinions that we would
not consider significant and novel, and those opinions would
not have been declassified. That is right.
Ms. Jackson Lee. Would there be a way of securing that
inasmuch as they are not significant and novel for the
information of either the American people or Members of
Congress?
Mr. Wiegmann. I am sorry. I missed your question.
Ms. Jackson Lee. Would there be a way of releasing those,
even those not significant or novel for the American people or
Members of Congress?
Mr. Wiegmann. So, if they are neither significant or novel,
I think the judgment of the Congress was that those are ones
that we would not provide to the committees and would have no
obligation to review because there also would be limited public
interest, I think, in those opinions.
Ms. Jackson Lee. We could access them, if necessary, in a
classified setting?
Mr. Wiegmann. I imagine if there was a particular opinion
that the Committee wanted to see, I imagine we could have a
discussion about providing that to the committee. Absolutely.
Ms. Jackson Lee. In addition, the Government should
disclose Office of Legal Counsel opinions relevant to the
Government's interpreting of section 215 of USA FREEDOM Act. Is
that correct?
Mr. Wiegmann. The Government has done what with the OLC?
Ms. Jackson Lee. Disclose Office of Legal Counsel opinions
relevant to the Government's interpreting of section 215 of the
USA FREEDOM Act. Is that important?
Mr. Wiegmann. Whether they should be disclosed?
Ms. Jackson Lee. Yes.
Mr. Wiegmann. Again, OLC opinions, some of them are made
public. Others are not. It really depends on the facts of the
case and OLC's policy in a particular case as to whether it is
kind of privileged advice or whether it is something that they
feel they can make public. Some opinions are public, and others
are not.
Ms. Jackson Lee. Thank you.
May I go to Ms. Morgan? The NSA announced in 2018 that it
received large numbers of CDRs that it should not have and that
these technical irregularities began in 2015. In response, the
NSA deleted every single record it collected since 2015. The
agency claims it solved the problem going forward, but failed
to provide any evidence of any change.
As a result, NSA announced it would purge every single
record it had collected since 2015. In 2019, the New York Times
published a major story reporting that the NSA stopped using
this authority entirely.
What exactly were the technical irregularities, and has the
NSA actually stopped the CDR program at this time? If you could
answer both of those?
Finally, to Mr. Orlando, if you could--I know where we are
with respect to foreign operatives--explain the value of FISA
in your work, but also the necessity of some form of that with
respect to domestic terrorism.
Ms. Morgan?
Ms. Morgan. Thank you, ma'am. I will start with your second
question.
The CDR program has been stopped. Last month, all of the
equipment was decommissioned. We are not leveraging the CDR
authority and have currently no plans to leverage it.
In terms of the technical irregularities that we
experienced, we got some information, and it was still all
metadata. I would like to be really clear. It was still all
things like ``Phone number A called phone number B at this date
and time for this duration.''
Some of that information was inaccurate. As such, we
determined that the best course of action was to delete the
records we received from the telecommunication providers.
Ms. Jackson Lee. Mr. Orlando?
Mr. Orlando. Ma'am, if I understood your question
correctly--
Chairman Nadler. The time of the gentlelady is expired. The
witness may answer the question.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Orlando. Ma'am, if I understood you correctly, you
wanted to understand how FISA could be used on domestic
terrorism subjects?
Ms. Jackson Lee. Whether you need an expansion or a
recharacterization, let us put it that way.
Mr. Orlando. We can only use FISA when there is a proof of
agent of foreign--
Ms. Jackson Lee. I understand.
Mr. Orlando. So, if the subject is not tied to an agent of
foreign power, we could not use it on a domestic terrorism
subject.
Ms. Jackson Lee. I understand that, and I was just saying
you need some kind of similar, comparable situation.
Mr. Orlando. I couldn't comment on FBI policy, but we have
other tools on criminals matters like a title III for wire
surveillance that we could use. Oftentimes in domestic
terrorism cases, we look for the Act of Violence, already a
violation of Federal law, and some ideology about social or
hate.
Ms. Jackson Lee. Thank you.
Chairman Nadler. The time of the gentlelady has expired.
Ms. Jackson Lee. Thank you.
Chairman Nadler. The gentleman from Texas?
Mr. Gohmert. Thank you, Mr. Chairman.
Thank you all for being here. Thank you for your work
trying to keep America safe.
Did the DOJ, FBI, or NSA during the Obama Administration
consider the Russian Ambassador to be a terrorist or an agent
of a terrorist organization?
Mr. Wiegmann. I couldn't comment on that. I don't know.
Mr. Orlando. I can't comment on anything outside the scope
of the FREEDOM Act.
Mr. Gohmert. All right. Ms. Morgan?
Ms. Morgan. Sir, I don't have that information.
Mr. Gohmert. Wow. Wow. That is amazing. Because it puts us
in the position, having heard that Jeff Sessions was being
surveilled when he met as a Senator with an Ambassador, there
were reports that, gee, we have had the Israeli Ambassador
under surveillance, people that he met with.
I don't know any of these things firsthand. It is what I
read in here. It gives me great concern because in my freshman
term, when we debated section 206, 215, when we debated the
FISA court, and then recently seen massive abuses through the
FISA court, we kept being assured, no, no, no, especially in a
FISA court, things like 215, we are not abusing anybody. I
heard here at this hearing that 215 allows surveillance of
foreigners that are not normally associated with a terrorist
organization.
I just wondered if that included nations of Israel or other
folks like that, and your silence speaks volumes. Looking at
this provision to get access to certain business records for
foreign intelligence or international terrorism investigations,
I still am concerned, as I was originally, with some of the
language because it allows the pursuit--and this is normally
going to be in front of a FISA court, apparently--that you can
go after foreign intelligence information not concerning a U.S.
person.
We know that is not true because U.S. persons are
constantly caught up, masked, and then, as we saw in the Obama
Administration, unmasked for no good reason. Then, also--or to
protect against international terrorism. Okay, well, that is
subject to a term of art or clandestine intelligence
activities.
I asked years ago, what does that mean? Clandestine
intelligence activities. Is that like if my neighbor kind of
stands behind the curtains and watch what is going on in my
yard, is that clandestine gathering intelligence? I mean, how
broadly can this go?
I was never really assured by the part of the law that said
these things will be done under the guidelines approved by the
Attorney General. Gee, we may have the Acting Attorney General
indicted here soon. I would rather have those done under the
law instead of some guidelines we have nothing to do with.
Let me also mention with regard to FISA, I understand you
have abandoned the gathering of metadata, but as long as there
is a FISA court, there can be another application and affidavit
that violates the Fourth Amendment's requirement of probable
cause and supported by oath or affirmation, particularly
describing things to be seized. When I looked at what was
disclosed of the order regarding Verizon, apparently everybody
got one. Everybody complied except Qwest, and I understand the
head of Qwest may be in jail.
This just says give us everything you have got on an
ongoing daily basis, all the call details. There was no
probable cause of anything. There was no particularity.
So, even though we may have abandoned those programs, as
long as there is a FISA Court and we do not have proper
safeguards for people's civil rights in the United States, then
you could go right back, and we can get into a constitutional
discussion on meta data, pen registers, and that kind of thing.
Still, as long as we do not have reforms in the FISA Court or
do away with it and go back to the old way of protecting
national security, then we are going to have these kind of
things come up, and we will find out about them later, and then
the program can be abandoned. It sounds like we are just going
to keep reauthorizing.
So, I have significant concerns, and also, I am amazed
here, you get an order that allows--it says meta data between
U.S. and abroad and wholly within the United States, including
local telephone calls, but nothing to do with all of those in
foreign countries. So, in other words, the affidavit and
application must have said we are not after anything where
people aren't protected by our U.S. Constitution; we are only
after the stuff that is protected by the Fourth amendment of
our Constitution.
So that all causes me concern. I was delighted to hear my
friend from California say she wanted to work with both sides.
We definitely need reforms, so you don't have to be back here
and squirming because of the abuses that have occurred in the
system. I really do hope we will work together to have some
reforms.
I yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chair. I appreciate the work all
of you all are doing in your agencies. What the Department of
Justice does, what the FBI does, what our intelligence groups
does protects our country. It is sad that they have been
attacked on a regular basis over the last 2 years and people
have had to question the men and women who are doing such
outstanding work for us on our behalf. I think that most
Americans appreciate what you are doing, and I certainly do.
I am concerned about First amendment rights, and I just
want some assurances, Mr. Wiegmann, if you can help me with
this. The law makes clear that when the Government seeks
business records for investigations involving American citizens
or permanent residents, the investigation questions cannot be
conducted solely upon the basis of activities protected by the
First Amendment.
How does the Department look at this, the Justice
Department? Is there any kind of review conducted internally to
make sure that non-First amendment factors supporting the
investigations aren't just pretextual?
Mr. Wiegmann. Thank you for that question. So, absolutely,
that is a core provision in various provisions of FISA that we
cannot engage in investigative activity solely on the basis of
First Amendment-protected activity. Let me give you an idea of
what that means.
It is a First amendment right if you want to say, ``I
support terrorism'' or ``I support al Qaeda'' or ISIS, or ``I
think that''--
Mr. Cohen. Or ``I like beer.''
Mr. Wiegmann. Right, whatever. If you want to say those
things, if you want to think those things, that is your right.
So, we could not get a FISA warrant or use a business records
application when--solely on the basis of that type of speech.
However, if we have more than that, if the person is saying
those things and they are also in touch with people in ISIS in
Syria or in touch with people in al Qaeda in Afghanistan, and
they are having communications, we can still consider the fact
that they have made these other statements, because that gives
us context to evaluate whether this person is an agent of a
foreign power.
So, you can see how speech in and of itself that might be
First amendment protected can be combined with other speech or
other conduct and paint an entire picture in which you come up
with a conclusion that someone is an agent of a foreign power
or is a valid target.
Does that answer your question?
Mr. Cohen. Sufficiently. Thank you. Thank you.
A lot of people have issues or concerns about minority
communities being targeted. Have you or any of your colleagues
here analyzed whether section 215 has disproportionately been
used on specific minority groups, Muslims, in particular,
Hispanics, border communities? How would you go about assessing
that? Is anything being done to make sure there is not a
disproportionate impact?
Mr. Wiegmann. So, once again, it is very similar. We, the
FBI--and I will let Mike also address this--cannot initiate any
investigative activity, including under FISA, solely on the
basis of someone's race, religion, gender, national origin, et
cetera. It is the same kind of ``solely'' provision, though. So
if, let us say, we had information indicating that someone of
German nationality was coming to the United States to engage in
a terrorist attack and that may be a bit of information that we
consider together with other pieces of information to consider
whether someone was properly targetable, if that explains it.
Mr. Cohen. Thank you, sir. Can you commit, one of your
groups, that you will do a disproportionate impact audit for
us?
Mr. Wiegmann. I can certainly take that back.
Mr. Orlando. I could take that back to the FBI as well.
Just to echo some of his comments, we can't open a case on
anyone based on First Amendment-protected activity, race,
ethnicity, or religious groups. We look at the activities of
the individual, and that is how we make decisions about opening
cases, and then the probable cause to move towards a FISA.
Mr. Cohen. Thank you. Can you tell us, when FISA was first
passed, which I guess was right after 9/11, am I correct?
Mr. Wiegmann. It was actually--
Mr. Cohen. There were changes after 9/11.
Mr. Wiegmann. There were changes. It was enacted in 1978.
Mr. Cohen. Yeah, the changes were pretty strong. It had an
acronym about--Bush gave it, whatever.
Mr. Wiegmann. The PATRIOT Act.
Mr. Cohen. PATRIOT Act, yeah, thank you. A lot of people
reacted adversely to it. Can you assure me and some of my
liberal friends who had those concerns that there have been
quite a few amendments to take care of some of the concerns
that originally arose?
Mr. Wiegmann. There have been certainly, with respect to
the expiring authorities, a number of amendments over the
years. There has been a lot of oversight over the years, both
congressional oversight, the court, the executive branch. From
my perspective, we have a very robust system for making sure
these authorities are used properly.
Mr. Cohen. Thank you. Just let me close. It appears that
some on the other side have got a problem with a lot of things
that have gone on in law enforcement. I read all those FISA
applications in the Carter Page case and saw nothing wrong with
any of them. I think it was--all the information was given to
the Court concerning the fact that the dossier that was there
was not the Russian Government. It was a British official, so
it was not Russia. It was started by the Republicans, I think.
Regardless of that, that was only a small factor, and there was
lots of information there to protect our country from Russian
interference. I thank the Justice Department and the FBI for
their work, and the security folk. Too much has been put on
you, and the biggest threat to you is a President who does not
tell the truth and has access to information and the ability to
counteract the good work that you are doing. So keep doing your
good work.
I yield back the balance of my time.
Chairman Nadler. The gentleman yields back.
The gentleman from Texas is recognized.
Mr. Ratcliffe. Thank you, Chairman.
As a former U.S. Attorney, it was and still is my opinion
that FISA is an important tool in the fight against
international terrorism. I think it is estimated that 25
percent of our actionable intelligence on foreign terrorists
comes from FISA authorities like section 702, which isn't up
for reauthorization, but my point is that, properly used,
reauthorization of certain FISA authorities should be
noncontroversial and should be bipartisan.
The problem is that many of us, as has been pointed out,
including those of us with access to classified information,
have seen what appear to be egregious abuses and misuses of
FISA authorities and corresponding misrepresentations before
the Foreign Intelligence Surveillance Court itself,
specifically as it pertains to Obama Administration DOJ and FBI
officials in securing a FISA order on at least one U.S. citizen
back in October of 2016 named Carter Page.
Many of us do believe that the Obama Justice Department
verified an unverifiable dossier that was funded by the
Democratic Party to secure an order allowing for the
surveillance of that former Trump campaign associate, Mr. Page.
Many of us also believe that the Obama Justice Department had
exculpatory evidence on the issue of probable cause that was
not provided to the FISA Court, at least not provided to the
Court during the pendency of the FISA order itself.
Earlier this morning, Chairman said that he didn't see any
evidence of FISA abuse as it pertains to Carter Page. You just
heard Mr. Cohen say the same thing. Democrats generally have
expressed that opinion. The former FBI Director, former
Director Comey, says the idea of FISA abuse is nonsense as it
pertains to Carter Page. I and many of my colleagues disagree
with that. I will just leave it at the Inspector General has
written a report, and we will see who is right, and we will see
who is wrong. I am afraid, unfortunately, that the Inspector
General is going to find that folks on my side of the aisle are
right, that FISA procedures were abused and that they were not
followed and will offer recommendations to correct that. Again,
we will see.
So, I want to use my time to focus a little bit on process,
and let me start out by just asking: Do any special rules exist
when submitting a FISA application to surveil or spy upon a
political campaign or one of its associates? Anyone.
Mr. Orlando. As I have stated earlier, we open cases based
on specific and articulable facts that they are agents of
foreign powers. I can't comment on anything outside the scope
of the FREEDOM Act today.
Mr. Ratcliffe. Anyone? Special rules for surveiling a
political campaign?
Mr. Wiegmann. I am not familiar with it, to be honest with
you, sir. I can't say one way or the other.
Mr. Ratcliffe. Okay. So let us then use the existing
framework that we know of. When the Government is presenting a
case with respect to a U.S. person like Carter Page, the FBI is
required to verify to the Foreign Intelligence Surveillance
Court, or FISC, that that evidence is verified. Correct?
Mr. Orlando. When we draft an application, we have a Woods
file that contains supporting documents to back up the facts.
Mr. Ratcliffe. Does the Department of Justice--are they
required to disclose to the Foreign Intelligence Surveillance
Court any exculpatory evidence? In criminal cases, we have what
is called the ``Brady requirement'' to disclose exculpatory
information. Does that something Brady-like apply before the
FISA Court?
Mr. Wiegman. Again, as I was saying earlier, it is not
Brady because that is a principle in criminal law in that
context. But, yes, my understanding at least, and subject to
getting back to you on this question, but I think the answer
is, yes, we do try to provide the full picture to the Court
when applying for a FISA warrant. So that means evidence both
indicting that the person--that there is probable cause that
the person is an agent of a foreign power and information that
would suggest to the contrary.
Mr. Ratcliffe. Okay. So in the case of Carter Page, if all
the Court heard was the arguments of the Government seeking a
warrant, no counterarguments presented questioning the
motivations of the funders of the Steele dossier, no cross-
examination about the veracity of the dossier itself or about
the credibility of the dossier's author, Mr. Christopher
Steele, what safeguards are there in the FISA process currently
to make sure that those obligations are met? What as a
practical matter would prevent the appointment of an attorney
ad litem to represent the interests of a target of a FISA
application, provided you could meet the security clearance
requirements, maybe by taking someone from the Justice
Department's Civil Rights Division?
Mr. Wiegmann. So, if I understand your question, I guess
your question is whether we should--
Chairman Nadler. The gentleman's time has expired. The
witness may answer the question.
Mr. Wiegmann. Your question is whether we should have
something like an amicus or something like to represent the
targets of FISA applications? Is that the--is that your
question?
Mr. Ratcliffe. To be able to probe the arguments that the
Government is making to take the extraordinary measure of
surveiling a U.S. citizen.
Mr. Wiegmann. So, I guess one thing I would say is we have
to remember that FISA is really in the national security world
the same thing, as I am sure you are familiar with as an ex-
U.S. Attorney, as a title III wiretap, which is really the same
type of thing, and we don't have any amicus or any other
participation in that context. So, I am not sure why it would
be necessary or appropriate to have an additional lawyer in
this context. We do have ex parte proceedings in the ordinary
course when we are doing wiretaps of a drug dealer or an
organized crime figure, et cetera. I am not sure I see a need
for having an amicus in the same situation when it is a spy or
a terrorist.
Chairman Nadler. The time of the gentleman has expired.
The gentleman from Georgia.
Mr. Johnson of Georgia. Thank you, Mr. Chairman. I am
ashamed that in an oversight hearing you all have to be
subjected to political fake news that is being trafficked in by
Members of the Republican Caucus on this Committee.
Several days before President Trump was inaugurated, he
compared intelligence officials such as yourselves as
``Nazis.'' Then the day after he was inaugurated, he paid a
visit to CIA headquarters out in Langley, Virginia, and he
stood in front of the hallowed ground of the memorial wall
where the names of CIA operatives, men and women, American
citizens, have given--are commemorated. Those are people who
have given their lives, the untold numbers. We do not know how
many. That is what that wall commemorates, and it is hallowed
ground out there. Instead of, while he was there, speaking
about the sacrifice of those brave men and women who have given
their lives to protect us, the President talked about his crowd
size at the Inauguration, and he bragged about winning the
election. Since then, he has continued to do everything he can
to destabilize public opinion about our intelligence
professionals and the work that you do, and you have had to
work through that. So, I appreciate you coming here today. I
appreciate you continuing to do your work without political
bent of mind but strictly and single-mindedly for the
protection of the American people, and I thank you for that.
This hearing is about oversight and should not be about
politics. As a member of the legislative branch, I am sorry. I
want to apologize to all of you all, all of your professionals
who are here today, for having to sit through this tirade that
comes from the other side.
Now, Ms. Morgan, you mentioned that the CDR Program has
been suspended, and NSA is tasked with execution of the CDR
Program. Correct?
Ms. Morgan. NSA operated the CDR Program.
Mr. Johnson of Georgia. Has the CDR Program or that
authority under the program been used in any way, the meta data
collected under the program, has it been accessed for any
purpose since the program was suspended?
Ms. Morgan. Sir, we deleted the records associated--that we
got from the telecommunication providers, so those records no
longer are there to be accessed.
Mr. Johnson of Georgia. All right. Thank you. And while it
was being collected, was that information subject to being
shared with immigration enforcement authorities?
Ms. Morgan. Sir, the information that we collected under
the CDR provision was accessible to analysts who are trained in
how to handle that particular data and the rules associated
with that data. Those analysts would look at the data, and if
they had foreign intelligence insights to share based on that,
they would report it through authorized channels to authorize
personnel.
Mr. Johnson of Georgia. That would have been officials also
involved in immigration enforcement?
Ms. Morgan. Sir, I am not certain about that. They would
report it to an authorized distro, to individuals who were
authorized to receive that foreign intelligence information.
Mr. Johnson of Georgia. Thank you.
Now, Mr. Orlando, the call detail records provision says
that these records cannot include cell sites or GPS
information, but other parts of the law governing the types of
business record don't have that express prohibition. So what I
want to know is: Does the Government collect geolocation
information under section 215?
Mr. Orlando. I am going to defer that question over to my
colleague at DOJ. He is better suited to answer legal and
authority questions.
Mr. Johnson of Georgia. Yes, sir. Mr. Wiegmann?
Mr. Wiegmann. So, as I think I mentioned earlier, there are
some--there can be some Fourth amendment issues in that area,
and to really answer your question, I think I would prefer to
answer that in classified session.
Mr. Johnson of Georgia. Thank you. With that, I will yield
back.
Chairman Nadler. The gentleman yields back.
The gentleman from Arizona.
Mr. Biggs. Thank you, Mr. Chairman.
So, I know this has been discussed this morning to some
extent and I want to approach this maybe from a slightly
different angle. In light of Carpenter, do you believe you have
the authority under 215 to obtain cell site location
information from providers?
Mr. Wiegmann. So, again, I would prefer to get into that--I
am happy to give you that information, Congressman. I would
just like to do that in a classified briefing.
Mr. Biggs. Okay. This may elicit the same response, but has
NSA or DOJ issued any guidance interpreting section 215 in
light of Carpenter?
Mr. Wiegmann. No.
Mr. Biggs. No guidance, NSA?
Ms. Morgan. Not to my knowledge.
Mr. Biggs. Okay. Has DOJ ever notified a criminal defendant
that information in his or her case was obtained through a
section 215 order?
Mr. Wiegmann. No. It is not required by law. There is no
provision for that.
Mr. Biggs. Why is the number of accounts impacted so
substantial given the number of targets? In 2018, the
Government collected information, 214,816 unique accounts, if
it had only 60 surveillance targets?
Ms. Morgan. Sir, just to clarify, I assume you are
referring to the numbers that were reported in the--for the NSA
CDR?
Mr. Biggs. Yes.
Ms. Morgan. Okay, sir. So, I think it is--two things I
think are important when you think about those numbers. One is
putting those numbers into context. So, every day in the United
States, there is billions of telephone calls made a day, which
can generate multiple records. We had about 500 million over
the course of a year.
The other thing I would want to highlight is that when we
get data, when we were getting data under the program that is
now suspended, we were authorized to get historical data that
the telecommunication providers held in addition to ongoing
data for the period of the court order.
Additionally, I would like to highlight that under the CDR
Program, which, again, we are no longer using, we are
authorized to get up to two hops from the--
Mr. Biggs. Right.
Ms. Morgan. So that, as you would imagine, will expand your
numbers exponentially.
Mr. Biggs. So, does the NSA believe it has the authority to
restart the program?
Ms. Morgan. Sir, currently we believe that authority
exists.
Mr. Biggs. Okay. Do you have the authority, collection
authority that is replicated under any authorization or any
other authority? In other words, is there some other legal
authority that you think that allows you to get the same
information?
Ms. Morgan. We don't have another legal authority that
would allow us to reinstate this existing--the program as it
existed.
Mr. Biggs. I am not following that. So, let me get this
back. If I understand, the answer to the first question is you
believe that you do have the authority to restart the program;
you don't need new authority to restart.
Ms. Morgan. Yes, sir.
Mr. Biggs. If you don't restart that program, is there some
other legal authority that you can use to garner the same
information?
Ms. Morgan. There is no other legal authority whereby we
could establish the program that we recently shut down.
Mr. Biggs. Okay. Very good. Thank you.
So, a FISA order on a U.S. citizen, Carter Page, was
divulged to the Washington Post, and I think you answered this
earlier. Has anyone been held accountable for this illegal
disclosure? There has been no Woods review? You don't know
whether there has or not?
Mr. Wiegmann. I can't comment on that in any way. I don't
know the answer.
Mr. Biggs. Okay. So, I want to make sure I understand
something. Mr. Orlando, I thought you said--and I jotted it
down. I am not going to quote it because I am sure I messed it
up, and I am just asking for clarification here. I thought you
might have said something to the effect that you use FISA
authority to cultivate obtaining probable cause. Is that a fair
characterization, or did you say anything like that at all?
Mr. Orlando. We use some of the business records and other
authorities to develop probable cause to support a FISA.
Mr. Biggs. All right. So, you are using business record
authority, okay. We have indicated that you can't--you don't
know whether a Woods review was performed on the Carter Page
FISA application to determine whether each alleged fact was
substantiated. Can a regular news article server as--serve as
underlying evidence in a Woods file to verify the accuracy of a
FISA application?
Mr. Orlando. If I understand your question correctly, you
are asking is a news article appropriate to be used? If
information was pulled from the newspaper article, it would
have to be included in the Woods file.
Mr. Biggs. So, the answer is yes?
Mr. Orlando. Yes. There is often a lot of other facts that
are put into that file that builds up the totality of your
probable cause.
Mr. Biggs. Okay. With that, my time has expired. Thank you,
Mr. Chairman. Thank you, Members of the panel.
Chairman Nadler. The gentleman yields back.
The gentleman from Rhode Island.
Mr. Cicilline. Thank you, Mr. Chairman. Thank you to our
witnesses for your testimony and for your service to our
country.
I think we are all trying to balance the very important
constitutional values that are the bedrock of our democracy
with, of course, your important responsibilities to keep
Americans safe, and FISA attempts to strike that balance.
I would like to focus my questions on the role of an
adversarial process in that particular--and, Mr. Wiegmann, I
will begin with you. Significant reform in the USA FREEDOM Act
was a requirement that the FISA Court appoint an amicus curiae
to argue the other side of the case as presenting novel or
significant interpretations of law. The annual report on the
FISA Court's activities for 2018 issued by the Administrative
Office of U.S. Courts states that an amicus was appointed on
nine occasions last year. Is that right?
Mr. Wiegmann. I don't know that exact number, but it sounds
in the right ballpark anyway.
Mr. Cicilline. Then the report for 2017 states that no
amicus were appointed at all that year, but it also says
something kind of odd. It says on three occasions the FISA
Court told the Government that it was considering appointing an
amicus because the proposed application raised novel or
significant questions. Then the Government either withdrew the
applications or modified them in a way that apparently
convinced the Court not to appoint an amicus.
Understanding that this is an unclassified setting, can you
explain as best you can what happened in those three incidents?
Mr. Wiegmann. So, I don't know in those particular three
incidents, but I can tell you that there is a process where--it
is a little bit unusual, that you wouldn't see in a regular
criminal matter--where we provide read copies to the Court in
advance. So, this is essentially a draft application, and there
is a give-and-take sometimes between the judges and their
assistants, their staff, and attorneys. In light of the
exchanges that occur in that process, sometimes applications
are withdrawn altogether. Other times they can be modified in
ways that, again, may mean that the case is less significant or
novel and the Court might--
Mr. Cicilline. Can you share maybe in writing what the
particular circumstances were of those three? There was also, I
believe, in 2018 something similar happened. I am wondering if
you could give a little more context of what the actual
circumstances were?
Mr. Wiegmann. I can certainly take that back and see if we
can get you that information.
Mr. Cicilline. Thank you.
The law also requires the FISA Court and the Government to
give those who file amicus curiae access to all materials
deemed relevant to their duties, such as legal precedents,
applications, or other supporting materials. As far as you are
aware, have any amici ever been denied access to information
they thought was relevant to their duties?
Mr. Wiegmann. Not that I am aware of.
Mr. Cicilline. Have they ever been denied the ability to
consult with other individuals for assistance in preparing
their cases?
Mr. Wiegmann. Again, not that I am aware of.
Mr. Cicilline. If the amicus curiae believes the FISA Court
has made a decision in error, do they have the ability to
appeal or otherwise notify the FISA Court of review?
Mr. Wiegmann. You are asking a good question. I would have
to look back at the law on that. There is an appellate
mechanism. My only hesitation is I am not sure if the amicus,
the way that we constructed the law, actually has standing to
bring the appeal or whether it is done in a different fashion.
I could get you--it is written in--there is an appeal
mechanism, and so I would just have to get into that issue.
They certainly can participate in appeals when an appeal is
brought, so I would have to get back to you as to how it works
exactly. It is a slightly different mechanism than that, but
there is a mechanism--there is a mechanism for appeal.
Mr. Cicilline. It is my understanding that only a handful
of opinions from the Court have been published. How does the
NSA or the DOJ determine which opinions are significant or
novel enough to be published?
Mr. Wiegmann. Again, as I mentioned earlier, it is an
evaluation--it is a case-by-case evaluation. There are many--
the vast bulk of FISA matters are routine. You are applying the
law to the facts and determining whether there is probable
cause to target a particular individual. Those would be
routine. There is a much smaller number that raise new
significant issues of whether, let us say, a particular type of
data could be collected or new issues, new expansions of an
authority. And so we are evaluating that on a case-by-case
basis and determining which--
Mr. Cicilline. Yeah, what I am interested to know is how
many opinions that fit that definition of ``significant or
novel'' but are not published.
Mr. Wiegmann. Well, we have to provide all of those to the
committee. Under the FREEDOM Act, all of those must be
provided. Then we also have to undertake, I believe, a
declassification review to determine whether we can redact and
release any of those significant or novel opinions. So, that is
in the law since 2015 that we have to do that.
Mr. Cicilline. All of those declassification reviews are
current?
Mr. Wiegmann. Yeah, I mean, there may be some that are a
work in progress. In other words, there may be some that are
ongoing, that haven't been done yet, but that they would be
under review.
Mr. Cicilline. My final question, Mr. Wiegmann, is: Has the
Department of Justice notified all criminal defendants who are
being prosecuted based on evidence derived from the use of
section 215? You are required to do it, obviously, for
prosecutions with evidence from 702. But, I would like to know
whether you do it with respect to 215--if you do not, why not?
--and whether you will commit to such notification. Finally,
would there be a problem if Congress were to amend section 215
to require notice to a criminal defendant in the same way we do
under section 702?
Mr. Wiegmann. Yeah, so we don't provide notice to criminal
defendants but for use of information under 215. Other
provisions of FISA, title I, title III, 702, Congress has built
in a mechanism whereby we would give notice if we intend to use
information that is obtained or derived from that authority in
a criminal case against an aggrieved person. So, there is no
such provision currently in the law for section 215. The reason
for that, again, I think is that 215 is, again, essentially
like a grand jury subpoena. It is just an authority to allow us
to collect third-party business records in which there is no
Fourth amendment protected interest. Generally, we associate
notice and suppression mechanisms with your ability to
challenge, the invasion of a constitutionally protected privacy
interest. That is generally not done in the law in other
contexts with respect to third-party business records. There is
no ability, for example, to challenge information derived from
a grand jury subpoena either, and so that is the model that is
incorporated into FISA modeled on the criminal authorities.
Mr. Cicilline. Thank you. I yield back, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentleman from Louisiana.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman. Thanks
to each of you for being here and for your service to the
country.
Mr. Wiegmann, just a few questions for you regarding the
constitutional implications of all this. Does the Fourth
Amendment's protection against unreasonable search and seizure
apply to business records that could be obtained under section
215 of the PATRIOT Act?
Mr. Wiegmann. No.
Mr. Johnson of Louisiana. So, a person does not have a
reasonable expectation of privacy in third-party business
records then. Is that right?,
Mr. Wiegmann. Yes.
Mr. Johnson of Louisiana. Is it true that a 215 order
provides greater privacy protection than a grand jury or
administrative subpoena which can be used to obtain the same
types of business records in a criminal investigation without
prior court approval?
Mr. Wiegmann. That is correct. Insofar as, for example,
most grand jury subpoenas can be issued by an Assistant U.S.
Attorney, here we have to go through court and make a specific
showing and so forth, which we would not have to do in a
criminal case. So, it is more protection, not less.
Mr. Johnson of Louisiana. I got it. If the Fourth amendment
applies to foreign countries, do other American protections
under the Bill of Rights apply, like, for example, the Second
Amendment? Or what about the Due Process Clause?
Mr. Wiegmann. I am not sure if I understand your question.
Mr. Johnson of Louisiana. Well, strike that. Let me give
you some foundation for it.
In a domestic title III wiretap, an individual who is not
under suspicion may be monitored because they receive a phone
call from someone who is the target of the title II wiretap.
Traditionally, those calls are subject to minimization
procedures. Is the same true for the collection of content
under FISA?
Mr. Wiegmann. Yes. It operates differently under title III.
In the criminal context, it is real-time minimization, and by
that I mean they are turning on and off the wiretap during the
conversation, depending on whether they are collecting
information that is relevant to their investigation or not.
In FISA, it is done after the fact. Okay? So, if you
receive that U.S. person information, if it is a foreign
target, they are in communication with a U.S. person, then the
minimization process--there are procedures that are in place to
try to minimize the collection, retention, et cetera, of U.S.
person information. That process is done post hoc. When you are
thinking about the information that you have and you are
disseminating it within the intelligence community, that is the
stage at which they are doing the minimization in the FISA
context. So, that is the big difference between title III and
FISA in that regard.
Mr. Johnson of Louisiana. In that process, the on-off
procedure, as you describe it, there is obviously an inevitable
amount of subjectivity that goes into thate is the kind of
thing that makes people nervous, I guess. We have to at the end
of the day, trust that those who have that authority are
flipping the switch at the right times. But, I know that is an
impossible thing to--I do not how to speak to that.
Mr. Wiegmann. Again, just to be clear, that is in an
ordinary criminal wiretap. That is what they are doing every
day and have done for many years.
Mr. Johnson of Louisiana. Right. Is legally obtained
information eligible for use in other intelligence activities?
So, can evidence obtained through intelligence collection be
used in a criminal prosecution and under what circumstance?
Mr. Wiegmann. Yes, it can be, assuming that they get
approval from the Attorney General to use it, we get the
approval from the intelligence community. It can as a general
matter be used in a criminal case.
Mr. Johnson of Louisiana. All right. I am going to yield
back, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentleman from California, Mr. Lieu.
Mr. Lieu. Thank you, Mr. Chair. Thank you all for your
public service.
I am going to start by simply correcting some misstatements
of my Republican colleagues related to the FBI's
counterterrorism investigation and the Carter Page warrants.
Here are the facts.
The FBI's counterterrorism investigation included in part
the Carter Page FISA warrants. That entire investigation helped
lead to the Mueller Special Counsel investigation. Special
Counsel Mueller's investigation resulted in 34 individuals
being indicted or companies being indicted, of which 8 have
been convicted or pled guilty of violating American criminal
laws. Volume I of the Mueller report showed that the Russians
engaged in a sweeping and systematic attack on elections. It
showed that the Trump campaign knew about this attack. They
welcomed it. They gave internal polling data to the Russians,
and then they planned their campaign strategy around that
Russian attack. We should be thanking the FBI, not trashing
them for getting this information out to the American people.
Those are the facts.
Now, I have questions about the Call Detail Records
Program, and my first question is: Unlike FISA warrants and so
on, none of this goes through a warrant process. Is that
correct?
Ms. Morgan. Sir, if I might just explain how the program
worked when we--
Mr. Lieu. Sure.
Ms. Morgan. So just as an example, an NSA analyst, they
have a phone number, say, and they have a reasonable,
articulable suspicion that that phone number is used by a
foreign power engaged in international terrorism. We work at
the NSA with our DOJ and our FBI colleagues to draft an
application to the FISA Court or the Attorney General in an
emergency situation. The FISA Court reviews that information we
present to see if we have met the standard, reasonable,
articulable suspicion. If the FISA Court approves that
application, then the telecommunication providers are compelled
to provide us with the meta data associated with that phone
number.
So there is a court--
Mr. Lieu. Before that--before the purge, you had all these
records collected without a warrant. Correct?
Ms. Morgan. Sir, before the purge, the records that we did
collect were a result of going through that FISA process.
However, some of the records that we received had technical
irregularities with them which resulted in the purge.
Mr. Lieu. So, you had hundreds of thousands of records that
went through the FISA process?
Ms. Morgan. The FISA Court approved the specific selection
term. The records that we get that are associated with that
term come from the telecommunication providers.
Mr. Lieu. So, one term could result in a lot of records.
Ms. Morgan. Yes, sir, because as you likely know, we are
able to get historical records associated with that phone
number and prospective records for as long as the order is in
place. We are also authorized to get what we call ``two hops
out'' from that original phone number.
Mr. Lieu. Can you explain what that means to the American
people?
Ms. Morgan. Absolutely, sir. So, if the Court approves a
phone--say my phone number is associated with international
terrorism, and agent of a foreign power, going through the
court process, they are approved, I am authorized to get meta
data records of other phone numbers that have been in contact
with my phone number. So, for example, if I am in contact with
Mr. Orlando, I am authorized to get that. I am also authorized
to get the phone numbers that were in contact with Mr.
Orlando's phone number. So, if Mr. Orlando was in contact with
Mr. Wiegmann, I would be authorized to get that, and we call
that ``two hops.'' I am authorized to get retrospectively as
well as ongoing for the duration of the court order.
Mr. Lieu. All right. Thank you.
Earlier it was stated that part of that also would include
driver's license information?
Mr. Wiegmann. So, again, to be clear, that is traditional
use of 215. What was just being described is the CDR Program,
so the CDR Program has nothing to do with driver's licenses, et
cetera. So, there is a separate--the regular, ordinary uses of
business records allows you to get things like driver's license
records, hotel records. That is more targeted. That is based on
the relevance of those particular records in a particular
investigation.
Mr. Lieu. Would that also include images, like the picture
on the driver's license as well?
Mr. Orlando. I am not sure. We can go back and--
Mr. Lieu. You will let us know?
Mr. Orlando. We will let you know.
Mr. Wiegmann. I don't actually know.
Mr. Lieu. So, thank you for your answers. My personal view
is that this CDR Program, also known as the meta data program,
to me it does violate the privacy. The Government could tell,
for example, just from meta data whether a person called a
suicide prevention hotline or Alcoholics Anonymous or a sex
chat line or a bankruptcy lawyer or a divorce lawyer. So to me,
that is just too much information for the Government to have.
In addition, with the two hops, I think it captures too many
people. So, without a greater showing of why this system is
efficient or has resulted in actual, concrete advantage to the
Government, I am unlikely to support its reauthorization.
With that, I yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from North Dakota.
Mr. Armstrong. Thank you, Mr. Chairman. I just want to say
I have never worked with the NSA because I was a lawyer in
North Dakota, but I have worked with DOJ and FBI a lot in my
private career, and I appreciate everything you all do. What I
have always found is the very best agents, the very best
lawyers are very cognizant of where the line is and what they
can do and what they can't do. They also, the best and most
aggressive ones, particularly, I am assuming in this area, will
push the envelope in order to do something because that is your
job. I don't discount that. I think that is actually
appropriate. I think that is why it is our job and the Court's
job to set where that wall is. So you can keep running into
brick walls and doing what you are doing to keep our country
safe.
I do want to go back to something that Mr. Ratcliffe was
talking about, and we were doing the context between this
gathering--or this type of information and criminal cases, and
one of the things that was stated was that this happens a lot
in criminal cases, ex parte, wiretaps, all of that. I think one
of the fundamental differences that we have is eventually I get
it all as the defense attorney. In a straightforward criminal
case, I get it all. I get to go to Brady. I get to go to
Carpenter. I get to go to all of those things. That is what I
think we miss sometimes in this and how we deal with it.
I know the difference between Carpenter and essential real-
time tracking of your actual location versus business record
exceptions, and this is a perfect example of where we get to
that.
Do you know how many FISA-derived informations have been
used in criminal--or how many criminal prosecutions have come
out of FISA warrants?
Mr. Wiegmann. I am not sure what you mean by ``come out
of'' the FISA warrant. If you mean how many cases have we used
FISA information in a criminal case, including title I FISA,
title III FISA? So there have been many of those cases since
the late 1970s when FISA was first adopted. I mean, it is not a
massive number, but I couldn't--I wouldn't have an exact count
of how many there have been, but there have been over the years
many different cases.
Mr. Armstrong. I would just like--outside of everything, I
have never wanted a half-hour longer in my life to ask
questions, but so--and how do you transition the intelligence
gathering? I mean, we have talked about Brady, and it is not
the same, and I understand all of those things. When you get
into a criminal case--we always have a saying, right? Hard
cases make bad law. There is back-and-forth going on about the
Carter Page case and all of that. The problem with a lot of
this is we only hear about the hard cases. We don't hear about
a lot of other things. So, I am all over the place because I
have so many questions I want to ask.
How does the Woods review work?
Mr. Wiegmann. I will let Mike answer that.
Mr. Orlando. Sir, if I could go back to your original
question and answer that.
Mr. Armstrong. Yeah.
Mr. Orlando. So, an espionage case is a good example--
oftentimes we use FISA to build that case, and then we bring
that to a criminal conclusion. As we build that case, we make
sure that the FISA, the information that is there that we have
to turn over that is relevant to that case, gets declassified
to be turned over to the defendant.
Mr. Armstrong. I have a question. Have you ever found
existing criminal activity unrelated to what you were dealing
with that has been turned over to law enforcement?
Mr. Orlando. I don't recall.
Mr. Armstrong. A terrorist talking to a drug dealer would
be how I would--I mean, just that specific fact pattern.
Mr. Orlando. I don't have any specific background on that.
Mr. Wiegmann might have some on that.
Mr. Wiegmann. I would have to get back to you and see how
often that has come up.
Mr. Armstrong. That is where I think the conflict comes in
for people who are not naive and understand how we want to keep
our country safe but actually really do care about how the Due
Process Clause and civil liberties apply once we end up in
those situations.
Mr. Wiegmann. Just to be clear, again, if we are using that
FISA, the product of that FISA in a criminal case, we have an
obligation to give notice to the criminal defendant. They have
then the ability to challenge the use of that FISA information
in court. There is a process that is all set up in the statute,
and that has been done many times, again, in these cases,
typically terrorism cases, espionage cases, and the like.
Mr. Orlando. In regards to the Woods process, the agent
starts drafting an application. Once he is complete, he sits
down with the supervisor. They review it together, and every
fact he has to be able to show the supervisor where he got that
information from. All that material goes into a book for
review.
Mr. Armstrong. This goes back to what several people--Mr.
Cicilline and Mr. Ratcliffe were talking about. We had said the
amicus attorneys get all relevant legal information. I think
some of us would be more--I don't care if they have the top
classified clearance that exists in the world, but what would
be the problem with having somebody in--an amicus lawyer in all
of these hearings at their onset?
Mr. Wiegmann. So, this was something that was considered
back in 2015, and our judgment at that time, and I think it
remains our judgment today, is that that would really slow down
and bog down the process in the FISA Court. If you had an
amicus participating and every FISA application was an
adversary proceeding, certainly if we had that in the title III
context where we are doing ordinary criminal wiretaps, having
an adversary proceeding in every application would make the
process untenable.
Mr. Armstrong. A follow-up? Thank you. I don't necessarily
see the oversight part of this that I would be looking at is I
don't even--I don't want them to have all relevant information.
I want them to have it all and be able to review it and deal
with those. I don't necessarily think it would potentially have
to be adversarial in the hearing. I would just want them to be
able to deal with that, because the consequences for
withholding information on those types of issues really only
come to bear if somebody finds it out, which is typically very
challenging when there is only one part of this process being
presented. So, there are potential ways to do this that doesn't
slow it down, that also holds people accountable for making
sure it is being done correctly.
With that, I yield back.
Chairman Nadler. The gentleman yields back.
The gentlelady from Washington.
Ms. Jayapal. Thank you, Mr. Chairman. Thank you all for
being here.
You have heard on a bipartisan basis that we all have
concerns about how mass surveillance is used in the United
States, and particularly after the PATRIOT Act, we tried to
address some of those things. There are still issues that
remain on the table as we look at reauthorization.
So, I wanted to go to the CDRs, and just so that the
American people understand this, while the program has been
suspended, my understanding is that the Administration has
asked for that to continue to be part of the reauthorization.
Is that correct, Ms. Morgan?
Ms. Morgan. Yes, ma'am.
Ms. Jayapal. So, just so people understand how much
information is being collected, according to the Office of the
Director of National Intelligence 2019 Statistical Transparency
Report, the NSA collected call records based on 11 targets in
calendar year 2018. Is that correct?
Ms. Morgan. Ma'am, I don't have the report in front of me,
but--
Ms. Jayapal. It is page 28 of the report. According to that
same report, with just 11 targets--just 11 targets--the NSA
collected 434,238,500--excuse me, 434,238,543 call records.
Does that sound--I know you don't have the report in front of
you. It is quoted from the report.
Ms. Morgan. Ma'am, that sounds accurate to me.
Ms. Jayapal. Okay. So, I think the American people need to
understand that when one record is collected, one target is
collected, that means you are collecting enormous amounts of
call records with just that one target. It is a shocking amount
of records, and I don't think that the vast majority of the
American people understand that.
So now going to section 215, as part of the broader
surveillance authorized by section 215, can the NSA obtain
people's medical records?
Ms. Morgan. Ma'am, if I could just clarify.
Ms. Jayapal. Of course.
Ms. Morgan. So, the components that we use that we are
talking about today is really the CDR provision from an NSA
perspective. So, I would defer to my colleagues to speak to
traditional uses of the--
Ms. Jayapal. Sure. We are moving to broader 215, so, Mr.
Wiegmann, if you want to address that?
Mr. Wiegmann. I don't know if--I am not aware of it having
been used ever to get medical records. I mean--
Ms. Jayapal. But, it could be? The way the provision is
written, the way that section 215 is written, could it be used
to obtain medical records? It can be used to obtain driver's
licenses.
Mr. Orlando. I am not aware of us ever seeking it for
medical records. I would say the circumstances that I can think
of us wanting that would be very limited--
Ms. Jayapal. But, there is nothing in 215 currently that
prevents us from doing that. You are just saying it hasn't been
used before. It could be. Is that correct?
Mr. Orlando. I think we would have to look at the version
closely to give you a--
Ms. Jayapal. Okay. How about tax returns? Do you collect
tax returns from millions of--hundreds of millions of
Americans?
Mr. Wiegmann. We certainly couldn't get it for hundreds of
millions. You have to show in each case with the statement of
facts that these individual records are relevant to an
authorized investigation of counterterrorism or for
counterintelligence purposes for a U.S. person. So, that is
going to limit it dramatically. You are not going to be able to
do that. You also have to use a specific selection term now
because Congress put that in in 2015. So, you can't do bulk
collection under 2015 at this stage. There is no possibility of
collecting hundreds of millions of health records. Tax records,
I know, is--
Ms. Jayapal. Thank you. Thank you for that clarification.
You can collect--you could potentially collect it, though, but
perhaps not with the scale that I mentioned with--
Mr. Wiegmann. Right. So, the law specifically mentions tax
records and says in the case of an application for an order
requiring, let us say, book sale records, firearms sales, and
then tax return records--or medical records, so medical records
are also contemplated in the statute--then that application has
to go to a higher-level review. So, that is the Director of the
FBI, the Deputy Director, and I think the EAD, the Executive
Assistant Director.
So, to answer your question, the statute does contemplate
the possibility of getting medical records or tax records, but
recognizing the sensitivity, particularly of those types of
records, they are elevated for particularly senior review. I am
just saying that I personally am not aware of whether we have
ever done that in a--the connection of a medical or tax record
to a terrorism investigation or counterintelligence is, I
guess, unlikely, but it is possible.
Ms. Jayapal. Then you might be supportive of excluding
those kinds of records?
Mr. Wiegmann. I don't think that we like to exclude because
you never know whether--if those records meet the standard and
they are relevant in an authorized counterterrorism or
counterintelligence investigation, then--
Ms. Jayapal. Well, let me just say, I am hearing you, but I
am deeply concerned about the kinds of information that we
collect. And Ms. Morgan, you mentioned earlier that Chairman's
questions were not the right standard to assess whether or not
a program was effective. At some point, perhaps--I have another
question to get through, so--and I see my time has expired, but
maybe at some point you could provide us with what matrix are
reasonable, because I think the problem that we are dealing
with is we are trying to strike the right balance of
maintaining security, of course, but we have to respect these
bedrock values of privacy and civil liberties protections. When
we authorized this and we see what happened with the CDRs, I
think that is just an indication of the challenges that we
face.
Thank you, Mr. Chairman. I yield back.
Chairman Nadler. The gentlelady yields back.
The gentlelady from Florida.
Ms. Demings. Thank you so much, Mr. Chairman. And thank you
all for what you do every day to help to keep us safe.
If we could just go back a little bit to follow up on my
colleague's questions about whatever the information is, that
it would have to be relevant, I believe. Could you talk a
little bit about the checks and balances of the FISA Court
application system that would maybe relieve some of the
concerns there?
Mr. Orlando. To begin with, first we have to open a case,
which has to have supervisor approval. As we move forward to do
a business record and the agent drafts that up, it goes back to
a supervisor review, all the way up the chain, over to our
headquarters where there are a number of lawyers that look at
that application to make sure that we have the right relevancy
that is relevant to a national security investigation, and then
it moves over to the Department of Justice for another series
of attorneys who look at it before it goes over to the Court.
So, there are a number of individuals and supervisors that are
looking at these applications.
Ms. Demings. Mr. Wiegmann.
Mr. Wiegmann. You also have to have a statement of facts.
You can't just assert that it is relevant. You have to have the
factual showing that it is relevant to the investigation. Then
you also have to be able to show that it is not based on First
Amendment-protected activity. Then you have to present all of
that to the FISA Court, and the FISA Court has to agree. So,
there is a really elaborate process that Mike just described,
and then it ends up with a judicial approval.
Ms. Demings. Thank you. Moving on, Mr. Orlando, to roving
wiretaps, when the Government applies to conduct electronic
surveillance under FISA, it always--does not always necessarily
have to identify the person being targeted. The law requires
you to State the identity, if known, or a description of the
specific target.
At a general or hypothetical level, can you describe why
you might not know the identity of a particular target and
would instead provide a description of the target? Or in most
cases, do you know--
Mr. Orlando. I would say in all my experience, we have
always known who that individual is. The roving authority gives
us the ability, if they are using tradecraft to elude us so
that we get secondary orders so we can go to multiple
facilities. We still have to go back to the Court within 10
days to describe what we have done. The only circumstance
hypothetically that I can think of is if there is a pending
threat and we don't have a name, but we have a number of
identifiers of what that individual is. If we can possibly
present a case to the Court that we think it is this type of
person because it meets all the identifiers might be that
circumstance.
Mr. Wiegmann. If I could just add on that, without getting
into the classified detail, I think the cyber context is one in
which you can imagine you might have a lot of information to be
able to identify an individual that may not know that person's
name. So, I can give you more information about that, but I
think if that is what you are referring to, the cyber context
would be the context in which that would most be applicable.
Ms. Demings. So, with the roving wiretaps, could you just
briefly describe why you feel this provision is so needed and
why terrorists or national security threats have been detected
or prevented as a result of it, and if it is classified, just
please give us a hypothetical.
Mr. Orlando. Sure, I can talk about both counterterrorism
and counterintelligence hypothetical situations. On the
counterterrorism side, we have the threat of the homegrown
violent extremists who are radicalizing very quickly and
mobilizing very quickly. We have to disrupt them faster than we
have had to disrupt them in the past 20 years. They are
involving with their tradecraft. We have instances where they
change their cell phones and emails and online profiles pretty
quickly. That roving authority helps us keep pace with them. If
we did not have that authority, we would have to repeatedly go
back to the Court or seek emergency authority and get the order
thereafter, which would cause delay.
On the counterintelligence side, we have foreign
intelligence services that have highly trained intelligence
officers who are trained to evade FBI surveillance, who are
able to come into the country, change cell phones, change
emails, change rented vehicles. This gives us the capability to
keep pace with them.
Ms. Demings. I believe it was said earlier that the lone-
wolf provision has never been used.
Mr. Orlando. Yes.
Ms. Demings. Could you give me--well, I find that
surprising but--and the concern that just expressed, could you
give me some examples of how it could be used to help decrease
domestic terrorism?
Mr. Orlando. I don't believe it applies to domestic
terrorism. What I will say, for the lone-wolf statute, with the
homegrown violent extremists, these are individuals who are
here in the United States. For that statute, they would have to
be a non-U.S. person, but they have a global jihadist ideology.
Homegrown violent extremists are not taking direction from a
terrorist organization. To date, we have been able to thwart
those activities by finding other ways of getting FISAs or
making some sort of connection. With this evolution, I foresee
the possibility of using that statute, possibly coming through
with the way the threat is evolving, where people are using
mixed ideologies.
Ms. Demings. Okay. Thank you, Mr. Chairman. I yield back.
Chairman Nadler. The gentlelady yields back.
The gentleman from California.
Mr. Correa. Thank you, Mr. Chairman. I would like to add my
voice to the chorus of colleagues here that have expressed
appreciation for your work, protecting our country, our
citizens. I also wanted to add my concerns about civil
liberties and privacy.
We are not a police state. Our security to a great extent
relies on the trust of our population in our governmental
institutions and our police, so to speak.
In my district, we probably speak 100 different languages.
I think about my district as being the new Ellis Island of the
United States. I have people from all over the world, literally
from all over the world, living in my district. Trust in our
police agencies is paramount.
To give you an example, a few years ago we--I didn't but
neighbors arrested a rapist in the Act of raping a woman. He
was convicted of 20 rapes. We think there were more victims,
but yet those victims never presented themselves because they
feared the authorities and many of them were undocumented.
I wanted to follow up some of the questions Congressman
Cohen touched on, which was the impact of sections 215 on
minority communities. Specifically, your information that you
gather, is it shared with immigration enforcement authorities?
Mr. Orlando. There would have to be some crime that relates
to them before we would share any information with them.
Mr. Correa. So, let me help you clarify for me, it is not
shared with immigration authorities unless it is relevant to
some specific crime, some national interest of specific
criminal acts of terrorism or otherwise? Is that what I am
hearing?
Mr. Orlando. It would have to be done on a specific case by
case where there is relevancy for us to pass it to them.
Mr. Correa. So specifically wiretap, you suspect somebody
on one end or the other, the U.S. is--may have a question of
immigration status, that information is not automatically
turned over to immigration enforcement authorities?
Mr. Orlando. It would have to be relevant. For instance, if
we had determined that we have a terrorist threat that is
possibly coming through the border, we would turn it over to
our partners in CBP to assist us in neutralizing that threat.
Mr. Correa. That terrorist threat is not one defined as
merely immigration status but, rather, they are here to do
serious violent acts to our population?
Mr. Orlando. They would have to meet the definition of an
international terrorism case.
Mr. Correa. Ms. Morgan?
Ms. Morgan. Yes, sir, as I stated before, we have used the
CDR Program specifically to focus on mitigating threats from
international terrorism. If we find information related to
international terrorism, we will report it out to entities
authorized to get that information.
Mr. Correa. Mr. Wiegmann?
Mr. Wiegmann. Again, there are minimization procedures
under all FISA authorities that specify the rules for when you
can disseminate information. The general standard is it has to
be foreign intelligence information, necessary to understand
foreign intelligence information, or evidence of a crime. Those
are, generally speaking--
Mr. Correa. That crime would not be immigration status in
this country?
Mr. Wiegmann. That is a good question as to whether someone
had illegally entered. Would that be a crime? So, if you had
evidence that was bearing on that as a crime, I don't know.
Maybe that is possible if the actual information was evidence
of that crime.
Mr. Correa. Could you get me more information on that,
under what circumstances that may be possible or not?
Mr. Wiegmann. Sure, absolutely.
Mr. Correa. Again, my question is your information is
shared with immigration authorities on the fact that maybe
somebody here--their immigration status is not correct, so to
speak.
Mr. Wiegmann. I will get back to you on that.
Mr. Correa. I can envision a situation--you have a very
powerful tool at your disposal, information, wiretapping. You
could very easily turn that around and say we are going to use
this for immigration purposes. I hope you do not get that--
Mr. Orlando. That would not be correct, sir. We only use
these authorities to counter foreign intelligence services and
foreign terrorism organizations and international terrorists,
lone-wolf international terrorists.
Mr. Correa. I would like something in writing from each of
you on that specific. I don't want a treatise, but just
something clear.
Mr. Correa. Finally, the last 20 seconds, I also would like
to know what tools you need to fight domestic terrorism. You
mentioned that the lone-wolf provision has not been applied.
Maybe it can be--it only applies to maybe international, not
domestic. I want to know what tools you need to keep our
population safe in the U.S. from emerging domestic terrorism
threats.
With that, Mr. Chair, I yield.
Chairman Nadler. The gentleman yields.
The gentlelady from Texas.
Ms. Garcia. Thank you, Mr. Chairman. Thank you for holding
this very important hearing.
I, too, want to first start by thanking all of you for the
good work that you do in your respective agencies and to all
the people that work in your agencies, not only in your offices
here in DC, but obviously in the field, where the real work
happens.
I, too, have worked with at least the DOJ and the FBI on a
number of cases in my capacity as a judge and a lawyer, never
with NSA. So, I just want to make sure that you know that there
are many of us out there who do support you and do so without
shame. However, when we look at the whole picture, I know that
it is all about the balances, and the national security or
threats versus the privacy of individuals versus some of the
other things that we have got to balance.
I wanted to start with you, Ms. Morgan, to clarify even for
the audience that is watching at home perhaps. We get a letter
from your agency that says that NSA has suspended the Call
Detail Records Program and has deleted the call details record.
This decision was made after balancing the program's relative
intelligence value, associated costs and compliance.
If we have suspended it, and you keep saying you need the
tool in your toolbox, obviously in my toolbox, if I have a
broken hammer, I just throw it out. I mean, why is it that you
suspended it and now you think that you need it? I know you
said that emphatically as a professional, that you thought you
needed it. So, I want to be clear as to why we really do need
it.
Ms. Morgan. Thank you for your question, ma'am. I really do
appreciate it. So, as we have stated and as was stated in the
letter, we made the decision to suspend the program after we
balanced the intelligence value that did exist in the program
when it was--
Ms. Garcia. Yeah, but you said there was a lot of matrix,
but you only referenced two, the ones Chairman talked about.
Ms. Morgan. I am sorry?
Ms. Garcia. I said you talked about a lot matrix that go
into making that decision, but you only mentioned the two that
I believe Chairman mentioned. So, what other matrix do you all
consider?
Ms. Morgan. So, when we evaluate our intelligence programs,
we are going to look at them across the panoply of all the
different programs that we have.
Ms. Garcia. I know, but we talked about two. What others do
you look at?
Ms. Morgan. What others do I look at?
Ms. Garcia. Mm-hmm.
Ms. Morgan. In terms of making decisions as--on value. Is
that what you mean?
Ms. Garcia. Yeah, and why we should reinstate the program--
reauthorize it.
Ms. Morgan. So, what I would say is that, as I sit here as
an intelligence professional, and I started my career in 2001
as an intelligence analyst. I can tell you that you can't--you
never know what you are going to confront in the future--
Ms. Garcia. I know, but you have told us all that. I want
specific matrix that you all look at to determine whether or
not did you want the program reauthorized after you have
already suspended it.
Ms. Morgan. Ma'am, can you help me understand what you mean
by ``matrix''?
Ms. Garcia. Well, you used--I am using your own words.
Chairman Nadler. I think you mean ``metrics.''
Ms. Morgan. Oh, metrics.
Ms. Garcia. Metrics.
Ms. Morgan. I am sorry, ma'am. I thought you said--
Ms. Garcia. I did say ``matrix.'' I misspoke. I apologize.
Ms. Morgan. I apologize for that.
Ms. Garcia. It has been a rough week already.
Ms. Morgan. I am sorry?
Ms. Garcia. It has been a rough week already.
Ms. Morgan. It has been a long day. But metrics. So, what I
would say is a couple things. One is you are not always
necessarily going to have metrics because the intelligence
profession is not always something that can be specifically
measured, and you can't necessarily measure the information,
the lead information that I got over, ultimately, weeks,
months, years from now, actually led me to have this
significant picture that provides me with critical insights
from a foreign intelligence perspective. So, it is not always
that you are going to have like a data point, like this amount
of this particular thing happened to happen. You are not always
going to have a number.
In some instances, it is going to be intelligence
professionals, discussions with our colleagues, to say, ``Hey,
we reported this information out from this program. Has it been
of value to you? How has it been of value to you?'' Then you
are going to take that information and make a decision based on
different factors that you can consider. You are not
necessarily going to have, ``Well, this program I rate a 5 and
this program I rate a 3, and here is all my data.''
Ms. Garcia. Well, it sounds like you want to keep it just
in case you might want to use it, and I am not sure that I
agree with that. So, I am going to have to cut you off because
I quickly want to ask a question from the FBI folks. A number
of companies offer genetic testing services to test for
genealogical research, for detection of carrier status for
inherited conditions. Is any of that also subject to the FISA
215 activity?
Mr. Orlando. This might be one of those where we need to
refer back to the book again. I am not familiar of any time we
have asked for that type of information.
Ms. Garcia. Okay.
Mr. Wiegmann. So, again, the 215 authority is just a grand
jury subpoena. You can really request any type of tangible
thing, any type of record, provided you have established that
it is relevant to an authorized investigation and you have
specific facts that show that. It seems unlikely, again, as I
said earlier with respect to medical records that would be the
case--
Ms. Garcia. Well, there is a lot of--what about--
Mr. Wiegmann. It is not ruled out because it--I don't know
what the fact pattern might be, but could there be a fact
pattern in which that was relevant to an investigation? I don't
know.
Ms. Garcia. What about the videos from the new door bells
that you go to the door and there is a video camera or the
video surveillance at the front door that you are videoing--
Mr. Wiegmann. That most certainly could be relevant in an
investigation. I am sure that could be--I can easily envision
scenarios where that could be relevant to an investigation.
Mr. Orlando. Ma'am, if I could add on the business records
provision, mostly what we use it for is a building block. We
open a case; we identify a subject, his telephone numbers, his
email addresses. We will go to the Court for a business record
to identify the transactional records, not the content, to see
who he is talking to, to see if we can build a connection to
the terrorist organization to identify the network. And then we
have our analysts look at that, and then we use that to aid us
to building the probable cause to move to a FISA Court-
authorized surveillance.
Ms. Garcia. All right. Thank you, Mr. Chairman. My time has
run out, I believe. I yield back.
Chairman Nadler. The gentlelady yields back.
This concludes today's hearing. We thank all of our
witnesses for participating.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:21 p.m., the Committee was adjourned.]
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