tv House Judiciary Committee Hearing on the Foreign Intelligence Surveillance... CSPAN September 20, 2019 8:02am-10:17am EDT
morning's hearing, oversight of the federal intelligence surveillance act. i'll 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 boby our government to keep us safe are consistent are our values and the freedoms guaranteed by the constitution. this committee has long exercised its responsibility to shape the legal framework unto 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. 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 surveillance authorities extend too far. those who criticize and question the laws we'll 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 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, 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 contains several important reforms. notably, we put an end to the nsa's program unto 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 bulk 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 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 hearing, section 215 and t2 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 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 let tore 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 the nsa has dismantled the records program as they've 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. nsa used it to collect hundreds of millions of phone records. 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 decided the program was not worth running. as former director coats put it, the decision to end the program was made after balancing its, quote, relative intelligence value, unquote, which was evidently minimal against, quote, compliance and data integrity concerns, closed quote. the nsa decided that the cost outweighed the benefits and it pulled the plug. that kind of candor should be
appla applauded. it's baffling to me the administration announced they shuttered the program then in the very same breath asked congress to extend it permanently. the administration offered almost no reason for this striking position except the vague suggestion that we night need the program some time 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 records. that experiment has run its course. the administration really wants to keep this provision on the books, it's 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 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 important reforms 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 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. >> 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, the tools remain available -- work
tirelessly to protect our country and secure the freedoms we cherish. sempl of the tools are set to expire december the 15th. it's 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'm actually kind of glad we're actually having this hearing. expires on december 15th, we would have been working on this a long time. i guess we've been busy on other things. the act was originally passed to protect americans from surveillance abuses. our national security apparatus surveillance regime offers access to critical foreign intelligence that we need, but we must ensure that there's 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 accuse republicans of simply trying to divert attention for political purposes, it's now clear that for those at the pinnacle of our national security community lost on the objectivity that they're required by law to exercise.
and that is coming out now as we see a fisa report coming out soon. a necessary component for american's trust in the intelligence community is the perception of fairness particularly when implementing surveillance against americans. like many americans, i wait the inspector general who rihorowit report. it's a fact that multiple individuals at the top of the fbi have been fired, terminated, referred for or reported to be under criminal investigation, although that seems to have escaped the notice of the majority on this committee. oversight and deterrence is clearly needed when the top-level officials in our intelligence and law enforcement community are officially criticized and potentially even indicted for divulging sensitive and 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's admittedly difficult to separate our concerns on fisa abuse from reauthorization facing us but we need to protect
valuable tools in combatting violent extremist and their evil goals. two of the authorities are fairly straightforward. the lone wolf and roving wiretap provisions. the lone wolf provision, prev t prevents terrorists scheme s se harm us. we know this has been a trajectory of terrorist attack with a perpetrator or not, quote, members of -- these particular terrorist organizations but are inspired by their miedieval ideologies. the roving wiretap provision allows the intelligence community to follow terrorists and spies who attempt to thwart and 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 suspected spies, is not something whose authority we can afford to let expire, however, section 215 is used for collecting call data records has been significant and technical problems in its implementation.
we'd like to hear from the nsa on their thoughts and continuing validity for 215 for collecting cdrs. i'd like to thank each of the agencies here this morning. i wish more would have been able to come this morning. i wish we could do this. in the spirit of 9/11 and 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've 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 tool belt. i look forward to the witnesses' testimony. i yield back. >> thank the gentleman. i'll introduce today's witnesses. 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 higgenbatham on the united states court of appeals. he received his b.a. from duke university and jd from harvard
law school. michael orlando is the deputy assistant director at the federal bureau of investigations counterterrorism division. he entered duty as a special agent in the pittsburgh field office in 2003 and 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 mcdina school of business. susan morgan has worked in nsa o operations for 18 years. we welcome all of our distinguished witnesses and we thank them for participating in today's hearing. now, in you would please rise i'll begin by swearing you in. raise your right hand. unless you're a lefty. do you swear or affirm under penalty of perjury that the
testimony you're about to give is true and correct to the best of your knowledge, information and beliefs, so help you god? 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 e entered into the record in its entirely. accordingly, i ask you summarize your testimony in five minutes. to help you stay within that time, there's a timing light on your table. when the light switches from green to yellow, you have one minute to conclude your testimony. when the light turns red, it signals your five minutes have expired. mr. wiegmann, you may begin. >> 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've 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 then turn it over to my colleague from fdi to address how they've been use in practice and their value to national security. then my colleague from nsa will address the fourth authorityd i practice and their value to national security. then my colleague from nsa will address the fourth authority, call detail records, or cdr authority. nsa can engage in collection ofof telephony metadata. continue surveilling a fisa-court approved target, the target is taking affirmative steps to thwart the surveillance. these are individuals who rapidly and repeatedly change communication service providers in order 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 its phone. the government has used this authority in a relatively small number of cases each year. the case s tend to involve highy 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 rosheco
the government can obtain in ordinary criminal or civil investigation without any court order. a fisa business records order is typically sought because national security interests p s preclude the use of the less secure criminal authorities or because there may be no criminal investigation under way 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. telecommunications service providers. as my colleague from nsa will discuss in a few minutes, this provision provides a way for the government, first, 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's 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 foreign terrorist who might be inspired by a foreign terrorist group but who's not technically an agent of that group. so, for example, it would allow for surveillance of a foreign person who's self-radicalized through viewing propaganda of a foreign terrorist organization like isis or al qaeda on the internet or known international terrorist who severs his connection with a foreign terrorist group. use 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. and as i've said, each has been renewed by congress multiple times in the past. with that, i'll stop and turn it over to my colleagues.
>> good morning. good morning, chairman nadler, ranking member -- >> good morning. >> -- collins, members of the committee. 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'll do my best to provide you with thorough hypothetical-use situations. i've seen a necessity of these provisions throughout my time as both a counterintelligence agent and counterterrorism agent. i'm looking forward to answering your questions today. national security threats have evolved significantly in the last 20 years. on the proliferation of mobile smartphones, to the expanded use of end-to-end encryption, new technology has allowed 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're 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'm 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 for 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 but 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 receive business record returns showing that the suspect, the terrorist, is buying bomb-making materials like night jetrogen-based ferti and ball bearings, that can help us establish probable cause. the roving detail is also an
important provision that counteracts efforts by various national security threats including terrorist 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 mising critical intelligence that would be lost if our ability to initiate surveillance was delayed. it's worth noting the fbi only seeks roving authority when requirements of the statute are met. that means we must provide information to show the target's actions can have the effect of thwarting surveillance. the last authority the fbi request you reauthorize is the lone wolf provision. while it has not been used since authorization, we believe it is an important -- 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, gives the fbi an additional tool without impacting the rights of any u.s. person. these 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'm happy to answer any questions related to these authorities. >> thank you very much. 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 four 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, quote, 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, end quote. 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 the call but does not authorize collecting the content ofny communicati nany communica address, financial information of the 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 communications habits continue to evolve and adapt. in light of this dynamic environment, nsa support 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. >> thank you very much for your testimony. we'll now proceed under the five-minute rule with questions. i will begin by recognizing myself for five 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, quote, detailed 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, nearly all cases, benefits provided have been minimal. generally limited to corroborating information that was obtained independently by the fbi, closed quote. 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? >> sir, thank you for your question. so i just want to start out by saying that i think a metric in terms of determining the value of a particular intelligence program, the number of attacks it prevented is but one metric or the number of attacks it's, you know, contributed to identifying is but one metric that you could consider but certainly not the only metric. i've been in -- 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're typically dealing with pieces of information and you're 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. certainly provide value. but, however, you have to weigh that in the context of everything else that we're doing and you have to weigh that against not only the data integrity compliance concerns that we face, but you also have to weigh that against the resources and the costs that we're expending as we want to be a good steward of the taxpayers' dollars and resources. so i would say that it's very difficult to, you know, it's not ever a black-and-white answer when you're trying to analyze the value of a particular activity. there's a lot of factors that go into that. and i could get a piece of information today that 10, 11, steps down the line later might actually prove to be really valuable. >> 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? >> sir, as i alluded to earlier, the measure of value isn't necessarily -- yes, sir. >> i heard that. you don't have to repeat it. my time is limited. the answer is no or yes? >> so in an open setting, i'm really leery it get into specific examples that the value of the program -- >> did i ask you a specific question? >> yes, sir. >> 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? >> sir, respectfully, i'd say that's a complicated question, to effectively answer it, i need to go into classified information. >> is the nsa aware of any instance in which the program directly contributed to the discovery of an unknown
terrorist plot or disruption of a terrorist attack? same answer? >> again, sir, but i would like to, if i may, 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. >> after the program was reconstituted under the act, lts nsa realized it had two problems on its hands. first, it was pulling in phone records 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? >> yes, sir. >> june 28th of last year, the nsa decided to purchase an entire database, nearly three years of call detail records. is that correct? >> yes, sir. >> and in the press release announcing the destruction of those records, the nsa stated that it 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? >> sir, i apologize, i'd have to take that back. i don't have those specifics. >> on august 16th, 2019, the nsa
decommissioned the cdr program all together. according to former director coats, the intelligence community weighed the cost against the benefits, saw the benefits are minimal and decided to discontinue the program. is that correct? >> yes, sir. >> okay. to sum up, 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 disconti e 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 -- why is the trump administration asked us to reorganize -- i'm sorry, in light of this record, why has the administration asked us to reauthorize this program? >> sir, as an intelligence professional, i'll 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's going to hold.
and should i confront a situation where this tool would be valuable to protect international security, protect us against terrorist activities, i would like the tools to remain available. >> okay. let me just say that it's a very good effort, i think the administration will have to do a little better than that and to say that we have a, perhaps, useless program but, you know, we want to reauthorize it because maybe someday it will do some good. have to give us some more basis to believe that, in fact, that it has a future utility. my time is expired. the gentleman from georgia, 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 -- 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 were choosing not to do that today. we've done this in the past and it would have been good to have. i think you've probably been able to answer questions in
classified briefings much -- i do appreciate the chairman actually acknowledging me for my five minutes today. i appreciate that. what the session -- ms. morgan, what session identifying information collected under the call detail record programs, if we terminate that and allow the program to expire, a terrorist decides to communicate over an encrypted app, is the ability to collect session-identifying information lost with respect to encrypted communications? >> sir, i apologize, but in o n opening hearing i can't get into capabilities -- >> that's the reason it would have been nice to have had a classified hearing after this as well which we could have gotten into this. >> and, sir, i'm absolutely willing to make my, you know, arrange for a time that's convenient for you and the rest of the committee to talk about -- >> that's fine. we've had all year and we're here now and, you know, i guess we just have to deal with it, so that's fine. mr. wiegmann, does the criminal brady requirement imposed on prosecutors to divulge exculpatory evidence favorable
to the defendant also apply to 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, the fisa surveillance, act to mitigate a probable cause that the person san agent of a foreign power? >> i believe we do provide the full picture in terms of what the information is available when we're -- you're saying regular title 1 fisa, sectiofor example, we provide the full picture. that would encollide -- it's not brady as a principle. that's in a criminal case, not in a fisa -- >> i understand. >> we disclose to the court the information that would suggest a person is an agent and any information that suggests the contrary. i believe that's our practice. >> 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? >> i'd really -- you'd have to know the facts of the particular case. >> if you had exculpatory information, 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? >> i think the effort is to provide a full -- >> not my question. not the effort. if it happened. is that a problem? is that something that you would not say should happen? >> in general, i think we would want to provide all the information -- all the relevant information to the court, absolutely, sir. >> so in general, you say it's okay, but in cases where you don't want to disclose it, you say it's okay. >> 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 fisa -- >> if not, that's abuse for the court process? >> i don't know if i would use those exact terms -- >> what could ywould you call i? >> something we work hard to do at doj to provide -- >> if it did not happen, any court, even this court as well, if it did not happen, it's a failure, correct? >> it's something we don't want to happen. >> a failure. the elephant in the room -- fbi
and doj on the presidential campaign volunteer, have you conducted a review of the carter page -- to determine whether ne each and every fact was verified by underlying evidence, and has anyone been -- >> 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. >> not saying my previous -- my question just prior to this also hints 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're not using the information completely. >> i'm not sure what your question is. >> i understand you're not going to answer it either way. the problem is, though, i think the chairman and i both do afree on some things and this is one of the areas we agree that there is a problem at the fisa court. we have just not talked about it this year because it's not the political narrative we're talking about. but there is a problem here that needs to be addressed that 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, but the issue here is that we got to make sure that this is a process in which is open for everybody because there's 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 and 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'll get a classified briefing but my time's expired. i yield. >> 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. >> can, mr. chairman -- >> i appreciate that. at the same time, it's always
been scheduled together where we could have all our stuff together and witnesses here. i was pointing out a simple fact. i appreciate the chairman feeling he had a need to discuss the bipartisanship which was so evident on this but so lacking yesterday. >> well, i'll also comment that i'm not aware of any terrible problem with the fisa court, specifically not with the carter page application. >> because we've not talked about it until today. i'd move on. >> yeah. gentlelady from california. >> 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're -- the witness table, mr. sensenbrenner was chair of the committee and 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's entirely appropriate that we review what we did so long ago to make sure that test. test. test. test. test. test. test. test. test. test. test. yone agrees with that. but 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, you know, 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 pre-digital age notions of the kinds of information that americans have a 4th amendment right to privacy in. prior to carpenter, law enforcement considered cell site g geolocation record to be a business -- stored under the communications act. didn't require a probable cause warrant. carpenter, you need a probable cause warrant. has that been translated into the same kind of record s that 215 would allow? do you need probable cause to get geolocation records as we do in the criminal matter? who can answer that? >> i can take that. so you're absolutely right, the carpenter decision, an important decision in the context of a criminal case held that you needed a warrant in order to obtain historic cell site location information. so that's not the same as gps. >> correct. >> information 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 -- >> i understand that. >> -- we've given some thought to the issue of, okay, how does the carpenter case apply, in let's say, the business records context, to really go into the detail, unfortunately, as to how we are applying it in that context, i'd have to get into classified information. but i'm 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 i'm -- again, i'm happy to do that for you. >> so, if i can just probe, what you're saying is you're looking at it, it's not the belief of the department that carpenter actually applies to what you're doing but that you're considering the 4th amendment implications for what, how you are proceeding. would that be accurate? >> i think it's a fair summary to say it's not controlling but certainly something that we're giving serious -- have given serious thought to in terms of how we apply it to our national security authorities even though
it's not controlling. >> 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's important to note that if you get enough nfrgs, even informav it's not called content, it provides tremendous insight into the details, privacy rights of americans. can you, ms. morgan, talk about the -- how much content that you obtain through this program? >> 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 in time for this duration.
we're not receiving any content and not receiving any locational information, either. >> let me ask in terms -- maybe you can't answer this in a public session, but in terms of text messages, pictures, emails, and the like, what is the universe of what you are collecting? >> so, ma'am, again, under the cdr program, under the usa freedom act, we're not collecting any content. i'm happy in a closed session to give you more insight into -- >> under 215, none of that would be collected? >> i'll speak to nsa cdr provision, we're not collecting any content. >> it's a little bit trickier in the context of the traditional uses of 215 because when you call something content, like, so is a driver's license record content or not? certainly substantive information. it's a third-party business record. >> yes. >> it has the information about the individual or that a
terrorist or suspected terrorist stayed at a particular hotel on a particular night. that's the type of information that we -- >> so on your business records, you would get autoll of that. >> we would get that. it's not communications -- >> i understand. >> we can't get substance of phone calls or anything like that. >> my time has expired. hopefully we will when we originally crafted these origins we all craft civil liberties and we will craft things together. >> the gentle lady yields back. >> thank you, mr. chairman. thank you for holding the oversight hearing to get a better understanding of fisa provisions and procedures some of this expire on the 15th. for nearly a year sense the start of this congress the majority has had this committee and the public has issued subpoena after subpoena holding hearing after hearing and passing resolution after resolution regarding an
investigation that's long been completed by special council robert mueller. yesterday corey lewandowski appear bfrd our committee for several hours and again answered questions and he's testified before congress and the result remains the same. the president neither conspired nor colluded with the russians to impact or influence the 2016 presidential election. the russians did try to interfere. they set up the 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 have obtained at the behest of the democratic committee and the hillary clinton campaign, how all of that began. mr. orlando, can you please tell
us under what circumstances the fbi might seek a fisa warrant to investigate an american citizen? >> a fisa on an american person we first need a case opened on that individual where that person poses a threat to national security where he's had tied to a foreign powergen rally as an agent of a foreign power or tied to a foreign terrorist organization. >> in order to initiate such a counterintelligence investigation, senior fbi officials must obtain a fisa warrant to collect information related to the allegations, is that correct? >> if you're seeking a fisa warrant there is an internal process and it elevates to the department of justice and to go to the court. >> would it be proper for fbi agents to obtain fisa warrants to investigate senior trump campaign advisers simply because they hated donald trump. >> that would not be appropriate
and for us to open a case and the person poses a threat to national security. >> would it be proper for fbi agents based upon hyperpartisan memos that were written by individuals linked to the opponent's campaign, in this case, the clinton campaign. >> we would have to show that you're an agent of a foreign power. >> thank you. as far as you are aware, do the fbi and other intelligence officials verify the truthfulness of the allegations in the steele dossier about then-candidate donald trump? >> sir, this is outside my purview. >> even though the information was never verified and most of it has 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? >> again, sir. that is outside my purview. >> mr. orlando, what information should an agent use to open a counterintelligence investigation? >> really a wide variety of information that we can use.
there just simply needs to be some sort of allegation that has specific and articulatable facts to open an investigation. when an agent does that, there is a supervisor that reviews that. in sensitive matters it elevates the approval. >> thank you. i've got a lot more questions, but it appears to me that faulty information was used to investigate the trump campaign officials bipartisan agents, and i just think it's strange that just a few weeks ago inspector general horowitz issued a scathing report regarding the mishandling of sensitive information by james comey, but 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 taef to what is happening at the fbi to
open an investigation. 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 to undermine an american presidency. the american people deserve better. i yield to the gentleman. >> mr. chairman, can i actually ask a question? i know the gentleman's time has expired. >> the gentleman's time has expired. >> can i ask the chair a question just on something the gentleman just mentioned? >> is it a parliamentary inquiry? >> it's a question for the chairman of the committee. >> so, mr. chairman, the ranking members and the chairmen of the oversight committee has received a letter from mr. horowitz last week indicating that he has now turned the fisa report over to
mr. barr and 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? >> we will review any such letter. the gentle lady from texas. >> good morning to the witnesses and thank you very much. let me just ask a general question first, having been here on the day of being here in the congress on 9/11/2001, just commemorating the horror of that day just about a week ago. is the fisa process an important process for national security, in your opinion? >> yes, ma'am. >> mr. orlando? >> yes, ma'am. it is a critical tool for us to
disrupt threats to the united states. >> miss morgan? >> yes, ma'am. >> let me start with mr. wagman on the fisa opinions. the usa freedom act directed all significant or novel foreign intelligence surveillance court opinions possibly available to the greatest extent practical. it is clear from the statementses during floor debate that this was to include opinions written before the passage. nonetheless, only a handful of opinions from the court released the passage of the bill had been published and how does the odni or the doj determine what are significant or novel enough to be published? >> so in terms of how we define what's significant and novel, there are plenty of opinions that will be applying ordinary legal opinions to the facts and
deciding whether a particular individual will have probable cause and there's nothing particularly novel about that exercise and it's fact intensive and not much would be released anyway and if we were to release the opinion because it would be application of the facts and not open to the public. that is the type of case where we would not consider it significant or novel, but if it was instead some interpretation of the act or something involved in amicus, or something about how the law applies more broadly, we would consider that to be significant and novel and those are the opinions that we provide in this committee and we have an obligation under the freedom act for declassification. >> do you know how many opinions have remained completely secret because of the definitions you're using? >> there are certainly opinions that we would not consider significant and novel and those would not have been declassified. that's right. >> and would there be a way to securing that in a way that they're not significant and
novel for the information of the american people or members of congress? >> i'm sorry? >> would there be a way of releasing those not significant or novel if for the american people or members of congress? >> so if they are neither significant or novel i think the judgment of the congress are those that would not provide to the committees and would have no obligation to review and there would be limited public interests and opinions. >> we could answer that in a classified setting. >> if there was something that the committee wanted to see, we could have a discussion about providing that to the committee. >> in addition, the government should discuss office of legal opinion relative to the government's interpreting of section 215 of the usa freedom act, is that correct? >> the government has done what? >> the office of legal opinions relative to the government's interpreting of section 215 of the usa freedom act. is that important? >> whether they should be disclosed? >> yes. >> again, all opinions, some of
them are made public and others are not. it really depends on the facts of the case as to whether it's privileged advice or whether it's something they feel they can be made public and some are made public and others are not. >> miss morgan, the nsa received large numbers of cdrs it should ha not have and in response nsa deleted every single record in 2015 and the agency claims it failed to provide the evidence of any change. as a result, nsa announced it would purge every single record it had collected since 2015 and in 2019 "the new york times" published a major story requiring them to stop using this entirely. has the nsa actually stopped the program? this time, if you can answer both of those and finally, to mr. orlando, if you can know where we are with respect to foreign operatives, e plain the
value of fiegsa in your work, but also the necessity of some form of that with respect to domestic terrorism. miss morgan? >> thank you, ma'am. i'll start with your second question. the cdr program has been -- 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 meta data. i wanted to be very clear. it was still phone number a or phone number b and some of that information was inaccurate. as such, we determined that the best cows urse of action was to delete the records we received from the telecommunications providers. >> mr.a orlando. >> the time of the gentle lady has expired. the witness may answer the question. >> you want to understand how
fisa can be used on terrorism subjects? >> whether you need a recharacterization, let's put it that way. >> we can only use fisa. so if the subject is not tied to an agent of foreign power we can't use it on a domestic terrorism subject. >> understand that. >> similar comparable situation. >> i couldn't comment on fbi policy. we have other tools on criminal matters that we could use. oftentimes in cases we look for the act of violence, already a violation of federal law and some ideology about social or hate. >> thank you. >> the time has expired. the gentleman from texas. >> 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 russian ambassador to be a terrorist or an agent of a
terrorist organization? >> i couldn't comment on that. i don't know. >> i can't comment on anything outside the scope of the freedom act. >> morgan? >> sir, i don't have that information. >> wow. that's amazing. because it puts us in the position having heard that jeff sessions was being surveilled when he meant as a senator with an ambassador, there were reports that we've had the israeli ambassador under s surveillance. it gives me great concern because in my freshman term when we debated section 20 6, 215, the fisa court and then recently seen the massive abuses through the fisa court, we kept being assured, no, no, especially in
the fisa court, things like 215, we're not abusing anybody and i heard here at this hearing that 215 allows surveillance of foreigners. and your silence speaks volumes. but looking at this provision to get access to certain business records for foreign intelligence or international terrorism investigations, i still am concerned 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 a foreign intelligence information not concerning a u.s. person but we know that's not true because u.s. persons are constantly caught up, and then as we saw in the obama administration, unmasked for no
good reason. but then also, or to protect against international terrorism. okay, well, that's subject to a term of art or clandestine intelligence activities. and i asked years ago, what does that mean? is that like if my neighbor kind of stands behind the curtains and watches what's going on in any yard, is that clandestine? gathering intelligence? how broadly can this go. and 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 soon. i would rather have those done under the law instead of some guidelines we have nothing to do with. but let me also mentioned with regard to fisa, i understand
you've abandoned the gathering of meta data. but as long as there's a fisa court, there can be another application that violates the fourth amendment's requirement of probable cause and supported -- particularly describing things to be seized. and when i look at what was disclosed of the order regarding of verizon, apparently everybody got one, everybody complied except quest and i understand the head of quest may be in jail. but this says give us everything you got on an ongoing daily basis. there was no probable cause of anything. there was to particularly. so even though we may have abandoned those programs, as long as there's a fisa court and we don't have proper safeguards in the united states, then you could go right back and we could
get into a constitution discussion, but still as long as we don't have reforms in the fisa court then we're going to have these kind of things come up and we'll find out about them later and then the program can be abandoned. but it sounds like we're going to keep reauthorizing. so i have significant concerns and also i'm amazed here. you get an order that allows -- it says meta data between u.s. and aboard and wholly within the united states including local telephone calls but nothing to do with all of those countries. in other words, the affidavit and application must have said we're not after anything where people aren't protected by our
u.s. constitution, we're only after the stuff that's protected by the fourth amendment of our constitution. that causes me concern. i was delighted to hear my friend from california say she wanted to work with both sides. we need reforms so you don't have to be back here and squirming because of the abuses that have occurred in the system and i really do hope we'll work together to have some reforms. i yield back. >> the gentleman from tennessee. >> thank you, mr. chairman. and i appreciate you all of the work you all are doing in your agencies. what the department of justice does, what the fbi does, what our intelligence groups does, it protects our country and it's sad that they've been attacked on a regular basis over the last two years and people have had to question the men and women who are doing such outstanding work for us on our behalf and i think the most americans appreciate what you're doing and i certainly do.
i'm concerned about first amendment rights and i want some assurances. when the government seeks business records for investigations involving american peoples, the investigation in question cannot be conducted solely upon the basis of activities protected by the first amendment. how does the department look at this? is there any kind of review conducted internally to make sure that factors aren't just -- >> that's a good question. we cannot engage in investigate activity solely on the basis of first amendment protected activity. let me give you an idea of what that means. it's a first amendment right if you want to say i like -- i support terrorism or i al qaeda -- >> i like beer. >> if you want to think those things, that's your right. and so we could not open -- 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 thing and they're in touch with people in isis, in syria, or in touch with people at al qaeda and afghanistan, and they're having communications, we can still consider the fact that they've 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 can be combined with other speech or conduct and paint an entire picture in which you come up with a conclusion. does that answer your question? >> 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 been used on
specific minority groups, muslims in particular, hispanics, border communities and how would you go by assessing that and is anything being done to make sure there's not a disproportional impact. >> fbi -- and i'll let mike also address this -- cannot initiate any investigate activity based on race, rideligion, et cetera someone was germany was coming to the united states to perform a terrorist attack, that maybe something to consider if that explains it. >> can you commit one of your groups that you will do a disporti for us. >> i could take that back. >> i could take that back to the
fbi as well. we look at the activities of the individual and that's how we make decisions about opening cases and then the probable cause to move towards a fisa. >> when fisa was first passed right after 9/11, a lot of -- is that not correct? there were changes after 9/11. >> it was enacted in 1978. >> the changes were strong and it had an acronym. >> the patriot act. >> thank you. a lot of people reacted adversely to it. can you assure me and some of my friends who had those concerns that there have been quite a few amendments to take care of some of the concerns that originally arose. >> there have been with respect to the expiring authorities. there's been a lot of oversight over the years both congressional oversight, the court, the executive branch. we have a have robust system for
making sure these authorities are used properly. >> thank you. in 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 of those fisa applications in the carter page case and saw nothing wrong with any of them. all of 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. and it was started by the republicans, i think, regardless of that, that was only a small factor. and there was lots of information to protect our country from russian interference. and i thank the justice department and fbi for their work and security folk and too much has been put on you and the biggest threat to you is that a president who doesn't tell the truth and has access to information and the ability to counter act the good work that you're doing. keep doing your good work. >> gentleman yields back.
the gentleman from texas is recognized. >> 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's estimated that 25% of our actionable intelligence on foreign terrorists comes from fisa authorities like section 702. properly used, reauthorization of certain fisa authorities should be bipartisan. the problem that many of us as has been pointed out have seen what appear to be 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 the fisa order orientation at least one u.s. citizen named carter page. many of us do believe that the obama justice department verified an unverified 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, the chairman said that he didn't see any evidence of fisa abuse as it pertains to carter page. you heard mr. cohen say the same thing. democrats generally have expressed that opinion. the former fbi 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. the inspector general has written a report, and we'll see who's right and who's wrong and i'm 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 they were not followed and will offer recommendations to correct that. but we'll see. i want to use my time to focus a little bit on process and let me start off by 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? >> as i've stated earlier, we
open cases based on specific facts. i can't comment on anything outside of the scope of the freedom act today. >> anyone? special rules for surveilling a political campaign. >> i can't say one way or the other. >> let's 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 that that evidence is verified, correct? >> when we draft application we have a file that contains supporting files to back up the facts. >> does the department of justice, are they required to disclose to the foreign intelligence court any exculpatory evidence? in criminal cases we have what's called the brady requirement to disclose information.
is that applied before the fisa court? >> as i was saying earlier, it's not brady because that's a principle in criminal law, in that context, but 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 warrant. that means evidence both indicating that the person -- that there is probable cause and information that would suggest to the contrary. >> okay. in the case of carter page, if all the court heard was the arguments of the government seeking a warrant, no counter arguments presented questioning the motivations of the steel dossier, no cross examination or about the dossier's author, what safeguards are there in the fisa process currently to make sure that those obligations are met
and what as a practical matter would prevent the appointment of an attorney ato represent the 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? >> so if i answer your question, i guess your question is -- >> the witness may witness the question. >> whether we should have something like an amicus or something like that to represent the targets of fisa applications? is that your question? >> and to be able to probe the argument that is the government is making to take the extraordinary measure of surveilling a u.s. citizen? >> i guess one thing i would say, we have to remember that fisa is really in the national security world the same thing as a wiretap. we don't have any other participation in that context
i'm not sure why it would been needed to have an additional lawyer. when we're doing drug taps, i'm not sure i would see a need for having an amicus whether it's a spy or a terrorist. >> the time of the gentleman has expired. the gentleman from georgia -- from georgia. >> thank you, mr. chairman. i'm ashamed that at 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 and then the day after she was inaugurated, he paid a visit to
cia headquarters and he stood in front of the hallowed ground of the memorial wall where the names of cia operatives, men and women, american citizens having given -- are commemorated, those are people who have given their lives, the untold numbers, we don't know how many. but that's what that wall commemorates and it's 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. and sense 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've had to work through that. 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. and as a member of the legislative branch, i'm sorry, i want to apologize to all of you all -- all of you 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 the execution of the cdr program, correct? >> nsa operated the cdr program.
>> has the cdr 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? >> sir, we deleted the records associated that we got from the tell communication providers, so those records are no longer there to be accessed. >> all right. thank you. and while it was being collected, was that information subject to being shared with immigration enforcement authorities? >> sir, the information that we collected under the cdr provision was accessible to analysts who are trained on how
to handle that data. those analysts would look at the data and if they had foreign intelligence insights to share, they would report it through authorized channels to authorized personnel. >> that would have been officials also involved in immigration enforcement? >> sir, i'm not certain about that. they would report it to an authorized -- to individuals who are authorized to receive that foreign intelligence information. >> thank you. mr. orlando, the call detail records provision says these records cannot include cell sites or gps information, but other parts of the law don't have that expressed prohibition. what i want to know is, does the government collect geolocation information under section 215?
>> i want to defer that question over to my colleague at doj. he's better suited to answer legal and authority questions. >> yes, sir. >> as i think i mentioned earlier, there are some -- there can be some fourth amendment issues in that area. and i think i would prefer to answer your question in classified session. >> with that, i will yield back. >> gentleman yields back. the gentleman from arizona. >> thank you, mr. chairman. i know this has been discussed this morning to some extent, so i want to approach this may be from a slightly different angle. in light of carpenter, do you believe you have the authority to obtain cell site information from providers. >> i would prefer -- i'm happy to give you that information. i would like to do that in a classified briefing. >> okay. and so -- this may give me this same response, has the doj
issued any guidance in light of carpenter? >> no. >> no guidance, nsa? >> not to my knowledge. >> okay. has doj ever notified a criminal defendant that information was obtained through a section 215 order. >> no, it's not required by law. there's no provision for that. >> and why is the number of accounts impact so substantial given the number of targets? in 2018 the government collected information of unique accounts and it had only 60 targets. >> i assume you're referring to the numbers that were reported for the cdr division? >> yes. >> two things are important, one is putting those numbers into context. so every day in the united
states there's billions of telephone calls a day. 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's 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're no longer using, we're authorized to get up to two hops from the -- so that as you would imagine would expand your numbers. >> does nsa believe it has the authority to restart the program. >> currently, we believe that authority exists. >> okay. and do you have authority -- collection authority that's 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? >> we don't have another legal authority that would allow us to reinstate the program as it existed. >> i'm not following that. you believe -- let me get this back. if i understand the answer to the first question, you believe that you do have the authority to restart the program. you don't need new authority to restart? >> yes, sir. >> and if you don't restart that program, is there some other legal authority that you can use to garner the same information? >> there's no other legal authority where you could establish the program that we recently shut down. >> very good. thank you. a fisa order on a u.s. citizen was divulged to the washington
post. has anyone been held accountable for this illegal disclosure? there's be no woods review. you don't know whether there has or not? >> i can't comment on that anyway. i don't know the answer. >> okay. mr. orlando, i thought you said, i'm not going to quote it because i'm sure i messed it up, 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? >> we use business records and other authorities to develop probable cause to support a fisa. >> so you're using business record authority. okay. so we've indicated that you don't know whether a woods review was performed on the
carter page fisa, can a regular news article server -- serve as underlying evidence to verify the accuracy of a fisa application? >> if i understand your question correctly, is a news article appropriate to be used? if affirmation was pulled from that news article, it would have to be included in that file. >> so the answer is yes? >> yes. but there's a lot of other facts that builds out the totality of your probable cause. >> with that, my time is expired. thank you, mr. chairman. >> the gentleman yields back. the gentleman from rhode island. >> thank you, mr. chairman. and 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 any question on the role of an adversarial process in that. significant reform in the usa freedom act was a requirement that the fisa court appoint someone to argue the other side of the cases presenting novel or significant interpretations of law. the reports from 2018 states that the amicus was appointed on nine occasions last year, that is right? >> i don't know that exact number, but it sounds in the right ballpark. >> and the report for 2017 states that no amicus were appointed at all that year. it says on three occasions the fisa court told the government it was considering appointing an amicus because it raised significant questions, but the government withdraw it.
understanding this is an unclassified setting, can you explain as best you can what happens in those three incidents? >> i don't know in those particular three incidents, but i can tell you that there is a process where it's a little bit usual that you wouldn't see in a regular criminal matter where we provide read copies to the court in advance. this is a draft application, and there's a give and take between the judges and their assistants and staff and our attorneys. in light of the exchanges that occur in that process, sometimes applications are withdrawn all together. other times they can be modified in ways that, again, may mean that the case is less significant -- >> can you share maybe in writing what the particular circumstances were of those three and there was also i believe in 2018 something similar happened. i'm wondering if you could give a little more context of what the actual circumstances are? >> i can take that back and see if we can get you that
information. >> the law requires the fisa court to give those who file amicus access to all materials deemed relevant to their duties. as far as you're aware, have any any of that been denied? >> not that i'm aware of. >> if the amicus believes the fisa court has made the decision, they have the ability to appeal or notify the fisa court of review? >> you're asking a good question. there -- i would have to look back at the law. my other hesitation, i'm not sure if the amicus actually has standing to bring the appeal or whether it's done in a different fashion. but i could get you -- there is an appeal mechanism.
i'd have to get back to you as to how it works exactly. there's a mechanism for appeal. >> it's my understanding that only a handful of opinions from the court have been published. how does the nsa or doj determine which opinions are novel enough to be published. >> it's an investigation -- it's a case by case evaluation. many are routine, you're applying the law to the facts. those would be routine. there's a much smaller number that raised new significant issues whether a particular type of data can be collected or new issues and so we're evaluating that on a case by case basis -- >> i want to know how many opinions fit that definition of significant or novel but are not published? >> we have to provide all of those to the committee under the freedom act. and then we also have to
undertake, i believe, a declassification review to determine whether we can release any of those opinions. that's in the law since 2015 that we have to do that. >> and all of those declassification reviews are current? >> yeah. there may be some that are a work in progress. there may be some that are ongoing. that haven't been done yet. but they would be under review. >> the -- has the department of justice notified all criminal defendants who are being propertied based on evidence derived from the use of section 215, you're required to do it for prosecution from 702. if you do not, why not? and whether you'll commit to such notification and would there be a problem if congress were to amend section 215 to require notice in the same way we do under section 702.
>> other provisions of fisa, congress has built in a mechanism where we would give notice in a criminal case against an aggrieved person. there's no such provision in the law for section 215. the reason for that, again, is that 215 is like a grand jury subpoena and there's no fourth amendment protected interest. that's generally not done in the law in other contexts with respect to third party business records. there's no ability to challenge information derived from a grand jury subpoena either. and that's the model. >> thank you, i yield back, mr. chairman. >> the gentleman from louisiana. >> thank you, mr. chairman.
thanks to seeeach of you for be here. just a few questions for you. does the fourth amendment's protection against reasonable search and seizure apply under the patriot act? >> no. >> so a person does not have a reasonable expectation of privacy in third party business records then, that is right? >> yes. >> is it true that a 215 order provides greater privacy protection than a grand jury that can be used without prior court approval? >> that's correct. insofar, for example, most subpoenas can be given by a u.s. attorney. it's more protection, not less. >> got it. if the fourth amendment applies to foreign countries, do other american protections under the bill of rights apply, the second
amendment or what about the due process clause? >> not sure if i understand your question. >> well, strike that. let me give you some foundation for it. in a domestic title 3 wiretap, an individual who's not under suspicion maybe monitored. those calls are subject to minimumization procedures. is the same true for the collection of content under fisa? >> yes. it operates differently under title 3, under the criminal context, it's realtime minimumization and they are turning on and off the wiretap during a conversation depending on whether they're collecting information that's relevant to their investigation or not. in fisa, it's done after the fact. if you receive that information, if it's a foreign target, then the minimumization process, there are procedures in place.
that process is done post hoc and that's the stage in which they're doing the minimumization that's the big difference between title 3. >> in that process, there's obviously an amount of subjectivity that goes into that and that's the kind of thing that makes people nervous, i guess. they ha i know that's an impossible thing to speak to. >> that's in an ordinary criminal wiretap. that's what they're doing every day and have done for many years. >> is legally obtained information eligible for use in other intelligence activities? can evidence can be used in a criminal prosecution? >> 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 be used in a criminal case. >> got it. i'm going to yield back, mr. chairman. >> the gentleman yields back. the gentleman from california mr. lieu. >> thank you for your public service. i'm going to start by correcting some misstatements of my colleagues related to counter terrorism investigation. here are the facts. the fbi's investigation included the carter page fisa warrants. that entire investigation helped lead to the mueller, special counsel investigation. the investigation resulted in 34 individuals being indicted or companies being indicted of which eight have been convicted or pled guilty of violating american criminal laws. volume one of the mueller report
showed that there are russians engaged in a systemic attack on our elections. it showed that the trump campaign new about this attack. they welcomed it 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 record program. and my first question is, unlike fisa warrants and so on, none of this goes through a warrant process, is that correct? >> sir, if i might just explain how the program worked when we -- >> sure. >> so just as an example, an analyst, they have a phone number, say, and they have a reasonable suspicion that that phone number is used by a foreign power. 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. fisa court reviews that information we present to see if we've met the standard. if the fisa court proves 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 -- >> but before that, before the purge, you had all of these records collected without a warrant, correct? >> 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 has -- sir, had technical irregularities. >> you had hundreds of thousands of records that went through the fisa process. >> the fisa court approved the
specific term. the records that we get come from the telecommunication providers. >> so one term could result in a lot of records. >> yes, sir. because as you likely know, we're able to get historical records associated with that phone number and perspective records for as long as the order is in place and we're authorized to get what we call two hops out from that original phone number. >> can you explain what that means to the american people. >> if the court -- say my phone number is associated with international terrorism, going through the court process, they're approved, i'm authorized to get meta data records of other phone numbers that have been in contact with my phone number. if i'm in contact with mr. orlando, i'm authorized to get that. i'm also authorized to get the phone numbers that were in contact with mr. orlando's phone number. if mr. orlando was in contact with mr. wiegmann, i'm
authorized to get that. i'm authorized to get that retrospectively as well as the duration of the court order. >> that would include driver's license information? >> again, to be clear, that's -- that's traditional use of 215. what was being described is the cdr program. it has nothing to do with -- there's a -- the regular ordinary uses of business records allows you to get driver's license records, that's based on the relevance of those particular records in a particular investigation. >> would that include images? the picture on the driver's license as well? >> i -- i'm not sure we can go back -- >> let us know. >> we'll let you know. >> so thank you for your answers. my personal view is that this program, also known as meta data program, to me it does violate
the privacy, the government could tell, for example, just meta data whether a person called a suicide prevention hotline, or a sex chat line or a bankruptcy lawyer or a divorce lawyer. to me, that's too much information for the government to have. i think it captures too many people. without a greater showing of why this system is efficient or has resulted in actual concrete advantages to the government, i'm unlikely to support its reauthorization. with that, i yield back. >> the gentleman yields back, the gentleman from north dakota. >> thank you, mr. chairman. i have never worked with the nsa, but i've worked with doj and fbi a lot in my private career and i appreciate everything you all do. and what i've 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. the best and most aggressive ones, particularly, i'm assuming in this area, will push the envelope in order to do something because that's your job. i don't discount that. i think that is actually appropriate. i think that's why it's our job and the courts job to set where that wall is. you can keep running into brick wall and is doing what you're doing to keep our country safe. but i want to go back to something that mr. ratcliffe was talking about and we were doing the context between this gathering -- or these -- this type of information in criminal cases and one of the things that was stated was that this happens a lot in criminal cases, wiretaps, all of that. but i think one of the fundamental differences that we have is eventually i get it all as the defense attorney in a straight forward 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 and that's what i think we miss sometimes in this in how we deal with it.
i know the difference between carpenter and realtime 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 -- how many criminal prosecutions have come out of fisa warrants? >> if you mean -- i'm not sure what you mean by come out of the fisa warrant. how many cases have we used fisa information in a criminal case? including title one fisa, title three vise? there have been many of those cases since the late 1970s. but there are over the years many different cases. >> and i would just like -- i've never wanted a half-hour longer in my life to ask questions,
but -- how do you transition the intelligence gathering? we've talked about brady and it's not the same and i understand all of those things. but when you get into a criminal case, we always have a saying, right, hard cases make bad law and there's back and forth going on about the carter page case and all of that. but we only hear about the hard cases. there's -- so -- i'm all over the place because i have so many questions i want to ask. how does the woods review work? >> i'll let mike answer that. >> if i could go back to your original case. an espionage case is a good example of that. we bring that to a criminal conclusion. as we build that case, we make sure that fisa, the information that's there, we have to turn over that's relevant to that case gets declassified to be turned over to the defendant. >> have you ever found existing
criminal activity unrelated to what you were dealing with that's been turned over to law enforcement? >> i don't recall at this time. >> talking to a drug dealer, that specific fact pattern? >> i don't have any specific background on that. >> i would have to get back to you. >> that's where i think the conflict comes in for people you don't understand how we want to keep our country safe but do care about how the due process clause and civil liberties apply once we end up in those situations. >> if we are using that fisa in a criminal case, we have an obligation to give notice to the criminal defendant. they have the ability to challenge the use of that information in court. there's a process that's set up in the statute. terrorism cases, espionage cases, and the like. >> in regards to the woods process, an agent drafts an
application. once he's complete, it sits down with the supervisor. and he has to be able to show the supervisor where he got that information from. all of that material goes into a book for review. >> and this goes back to what several people were talking about. 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. what would be the problem with having somebody an amicus lawyer in all of these hearings at their on set? >> 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 it would bog down the process in the fisa court. if you had an amicus participating in every fisa application, if we had that in the title 3 context, having an
adversary proceeding would make the process untenable. >> thank you. and i don't necessarily -- i think the oversight part of this that i would be looking at, 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 think it would have to be as vadversarial in the heari. the consequences for with holding information really only come to bear if somebody finds it out which is challenging when there's only one part of this process being presented. i think there's potential ways to do this that doesn't slow it down that also holds people accountable for making sure it's been done correctly. with that, i yield back. >> the gentleman yields back. the gentle lady from washington. >> thank you, mr. chairman, and thank you all for being here. i think you've 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, but i think there's still issues that remain on the table as we look at reauthorization. just so the american people understand this, i think, you know, 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? >> yes, ma'am. >> and 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? >> ma'am, i don't have the report in front of me, but -- >> it's page 28 of the report. according to that same report with just 11 targets, just 11
targets, the nsa collected 434,238 -- excuse me 434,238,543 call records. it's quoted from the report. >> that sounds accurate to me. >> i think the american people need to understand that when one record is collected, one target is collected, that means you're collecting enormous amounts of call records with just that one target. it's a shocking amount of records. i don't think 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? >> ma'am, if i could just
clarify. the components that we use that we're talking about today is really the cdr provision from an nsa perspective. i would defer to my colleagues to speak to traditional uses. >> sure, we're moving to broader 215. if you want to address that. >> i don't know -- i'm not aware of it having been used ever to get medical records. >> but it could be, the way section 215 is written could it be used to obtain medical records? it be be used obtain driver's licenses. >> i would say the circumstances i could think of that would be very limited. >> there's nothing in 215 currently that prevents us from doing that, you're just saying it hasn't been used before. it could be? >> i think we'd have to look at the version closely. >> how about tax returns? do you collect tax returns from millions of -- hundreds of millions of americans?
>> certainly couldn't get it from hundreds of millions. you have to show in each case with a statement of facts these individual records are relevant to an authorized investigation of counterterrorism or for counterintelligence purposes for a u.s. person. so that's going to limit dramatically. we're not going to be able to do that. you have to use a selection term because congress put that in in 2015. you can't do bulk collection under 215 at this stage. there's no possibility of collecting hundreds of millions of health records. tax records -- >> clarification. you can collect -- you could potentially collect it though, perhaps not with the scale that i mentioned. >> right. so the law specifically mentioned tax records and says in the case of an application for an order requiring the book sale records, firearm sales and tax return records or medical records. medical records are contemplated. that has to go to level review. the director of the fbi, deputy
director and the executive director. to answer your question, the statute does contemplate the possibility of getting tax records, but recognizing the sensitivity of those records they're elevated. i'm personally not aware of whether we've done that in a connection of a medical record to a terrorism investigation or a counterintelligence is i guess, unlikely. it's possible. >> you might be supportive of excluding those kinds of records? >> we don't like to exclude because if those records meet the standard and they're relevant and authorized counterintelligence investigation, then -- >> let me just say, i'm hearing you, but i am deeply concerned about the kinds of information that we collect. you know, ms. morgan, you mentioned earlier the chairman's questions were not the right standard to assess whether or not a program was effective. and at some point perhaps, i have another question to get through. so i see my time has expired.
maybe at some point you could provide us with what metrics are reasonable. i think the problem we're dealing with is we're 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. and you know, when we authorize this and we see what happened with the cdrs, i think that's just an indication of the challenges we face. thank you, mr. chairman. i yield back. >> gentlelady yields back. the ge >> thank you all for what you do every day to help to keep us safe. if we could go back 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 from the fisa court application system that would maybe relieve some of the concerns here.
>> begin with -- we have to open a case that has to be supervisor approval. as we move forward to do a business record and the agent drafts that up he goes back to a supervisor, revealed all the way up the chain over to the headquarters where there are a number of laiwyers to make sure we have the relevancy and then it moves over to the department of justice for another series of attorneys who look it before it goes over to the court. there are a number of individual and supervisors who are looking at these applications. also have to have a statement of facts. can't assert it's relevant. you have to have the facts that's showing it's relevant to the investigation. you have to be able to show it's not based on protected activity. you have to present all of that to the fisa court and the niza court has to agree. there's a process that might describe -- and it ends up with a judicial approval. >> thank you. moving on, mr. orlando, to
roving wire taps. when the government conducts electronic surveillance under fisa it 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 provide a description of the target. in most cases do you know? >> i would say in all my experience we've always known who that vinyl is. the authority gives us the ability so we get secondary orders so we can go to multiple facilities. wite have to we have to go back to the court within ten days. the only circumstance i can think of is if there's a pending threat and we have a number of identifiers. if we can possibly present a case to the court that we think
it's this type of person because it meets all the identifiers, might be that circumstance. >> if i could add on that without getting into classified detail. i think the cyber context is is one you can imagine you might have a lot of information to be able to identify an individual but may not know that person's name. so i think giving you more information about that, if that's what you're referring to the cyber context would be the context that's applicable >> with the roving wiretaps could you 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's classified, give us a hypothetical. >> sure. i could talk about both counterterrorism and counterintelligence hypothetical situations. on the counterterrorism side, we have the threat of the extremests who are mobilizing very quickly. we have had to disrupt them faster than in the past 20
years. they're evolving with their trade craft. they have instances where's they trade their online identities quickly. if we didn't have that authority we'd have to repeatedly go back to the court and seek authority and get the order thereafter that would cause delay. on the counterintelligence side we have foreign intelligence services that have trained officer whose are trained to evade surveillance who are able to come into the country, change cell phones, e-mails, rental vehicles. this gives us the capability to keep pace with them. >> i believe it was said the lone wolf provision has never been used? could you give me -- i find that surprising. in the concern you just expressed, could you give me some examples of how it could be used to help decrease domestic
terrorism? >> i don't believe it applies to domestic terrorisms. these are individuals that are here in the united states and it would have to be non-use person who has an idealogy. we have been able to thwart those activities by finding ways of making some sort of connection. for this evolution, i see it as the possibility of using the statute, where people are using mixed idealogies. >> thank you, mr. chairman, i yield back. >> gentlelady yields back. the gentleman from california. >> thank you, mr. chairman. i'd like to add my voice to the chorus of colleagues that have expressed appreciation for your work, protecting our country, our citizens. but also wanted to add my concerns about civil liberties privacy.
we're not a police state. our security relies on the trust in our governmental institutions and our beliefs so to speak. in my district, we probably speak 100 different languages. i think about my district as being the new ellis islands 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 but those victims never presented themselves because there was fear of 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? >> there would have to be some crime that relates before we would share any information with them. >> so let me help you clarify for me. it is not shared with immigration authorities unless it's relevant to some specific crime, some national interest of specific criminalat acts of terrorism? >> there would have to be specific acts. >> wiretap, you suspect someone on one end or the other, the u.s. may have a question of immigration status. that information is not automatically turned over to immigration enforcement authorities? >> would have to be relevant, for instance, if we had
determined we have a terrorist threat we'd turn it over to our partners to assist us. >> in that terrorist threat, it's not one defined as merely immigration status, but rather they're here to do serious violent acts to our population. >> they would have to meet the definition of an international terrorism case. >> ms. morgan? >> yes, sir, as i stated before we've used the cdr program to focus on mitigating threats from international terrorism. if we find information related to international terrorism we report it to entities authorized to get that information. >> mr. redmond? >> the limitization procedures that specify the rules for when you can disseminate information. the general standard has to be foreign intelligence information necessary to understand foreign
intelligence information. >> and that crime would not be immigration status in this country? >> it's a good question as to whether someone had illegally entered. would it be a crime? if you had evidence that was bearing on that as a crime. i don't know, maybe that's possible. if the actual information was evidence of that crime. >> get me more information on that. under what circumstances that may be possible or not. >> absolutely. >> my question is your information shared with immigration authorities on the fact that maybe somebody here, the immigration status is not correct, so to speak. >> you bet. >> yeah, 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're going to use this for immigration
purposes. i hope you don't get that. >> that would not be correct, sir. we use these authorities to counter foreign intelligence services and foreign terrorism organizations and international terrorists lone wolves. >> i would like something in writing from each of you on that specific. i don't want to treatise, just something clear. finally, 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. it only applies to maybe international, not domestic. i want to know what tools we need to keep our population safe in the u.s. from emerging domestic threats. with that, mr. chair, i yield. >> the gentleman yields, the gentle lady from texas. >> thank you, mr. chairman and 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 aen agencies. i, too, have worked with at least doj and the fbi on a number of occasions as a judge and lawyer. never with nsa. so i just want to make sure that you know that there's many of us out there who do support you and do so without shame. however, when we look at the whole picture i know it's all about balance, isn't it? national security, our threat versus the privacy of individuals versus some of the other things we've got to balance. i wanted to start with you, ms , morgan. to clarify for the audience that's watching at home perhaps. we get a letter from your agency
that says nsa has suspended the call detail records program. call details record. this decision was made after balancing the intelligence values, associated cost and compliance. if we've suspended it, 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. why is it you suspended it and now you think you need it? i know you said that emphat emphatically as a professional you thought you needed it. i want to be clear as to why we really do need it. >> thank you for your question, ma'am. i really do appreciate it. so as we stated we made the decision to suspend the program after we found the value that did exist in the -- >> you said there was a lot of matrix but you only referenced the ones the chairman talked about. >> sorry?
>> you talked about a lot of matrix that go into making that decision but you only mentioned the two that i believe the chairman mentioned. what other matrix do you all consider? >> when we evaluate our intelligence programs we're going to look across all the different programs we have. >> i happen, but we talked about what others do you look at? >> what others do i look at? in terms of making decisions on value, is that what you mean? >> yeah, why we should reinstate the program. reauthorize it. >> so what i would say is that as i sit here as the intelligence professional and i started my career in 2001 as an intelligence analyst and i can tell you that you can't -- you never know what you're going to confront in the future -- >> but you've told us all that. i want specific matrix that you all look at to determine whether or not you want the program
reauthorized after you suspended. >> it you help me understand what you mean by matrix. >> i'm using your own words. >> i think you mean metrics. >> i'm sorry -- >> i did say matrix, i apologize. i apologize for that. been a rough week already. >> it's a long day. metrixes. what i would say is a couple things. one is you're not necessarily going to have metrics. the intelligence profession is not always something that can be specific and you can't necessarily measure the lead information i got over here, ultimately weeks, months, years from now, actually let me to have this significant picture that provides me with critical insights from a foreign intelligence perspective. it's not always that you're going to have like a data point like this amount of this particular thing happened to happen. you're not always going to have
a number. in some instances it's going to be intelligence professionals, discussionswise our colleagues to go has this been a value to you? you're going to take that and make a decision based on things you can consider. you're not necessarily going to have this program and this program i rate a three. >> it sounds like you want to keep it just in case you might want to use it. i'm not sure that i agree with that. i'm going to have to cut you off. i quickly want to ask a question from the fbi folks. a number of companies offer testing services to test for research, status and conditions. is any event also subject to the fisa 215 activity?
>> i'm not familiar of any time we've asked for that type of information. >> okay. again, the authorities is just like a grand jury, you can request any type of record provided you have established it's relevant to an authorized investigation. you have specific facts that show that. it seems unlikely as i said -- >> but -- >> it's not ruled out. i don't know what the fact pattern might be. could it be a fact pattern in which it would be relevant to an investigation? i don't know. >> what about the videos from the new doorbells and you go to the door and there's a video camera or the video surveillance at the front door -- >> that most certainly could be relevant. i'm sure i could envision scenarios where that could be relevant. >> if i can add on the business records. >> we use it for a building block. we open a case, identify a
subject. telephone numbers, e-mail addresses. we'll go for the business record to identify the transactional records, not the content to see if we can build a connection to the terrorist organization to identify the network. we have our analysts look at that and use that to build the probable cause to use to a fisa court authorized surveillance. >> thank you, mr. chairman. my time i yield back. >> this concludes today's hearing. we thank yall of our witnesses for participating. all witnesses will have five da days. without objection the hearing is adjourned.
president trump and first lady melania trump will host the second state dinner of his administration. as he welcomes australian prime minister scott morrison and his wife, jenny morrison. watch guest arrival and dinner. our live coverage begins today at 6:30 p.m. eastern on cspan online at cspan.org or listen on the free cspan radio app. this weekend on american history tv, saturday at 6:00 p.m. eastern on the civil war. the co-author of targeted tracks talks about the importance of the cumberland valley railroad during the civil war. at 8:00 on lectures in history,
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