tv House Judiciary Committee Hearing on the Foreign Intelligence Surveillance... CSPAN September 23, 2019 10:54am-1:11pm EDT
the house will be in order. >> for 40 years c-span has been providing america unfiltered coverage of congress, the white house, the supreme court, and public policy events from washington, d.c., and around the country so you can make up your own mind. created by cable in 1979. c-span is brought to you by your local cable or satellite provider. c-span, your unfiltered view of government. and now the house judiciary committee holds an oversight hearing on the foreign intelligence surveillance act known as fisa. the committee considers whether to renew several fisa provisions including the lone wolf provision set to expire at the end of the year. representatives from the justice department, fbi and national security agency talk about their agency's use of the provisions and urge lawmakers to
recesses of the committee at any time. we welcome everyone to this morning's hearing on oversight of the federal intelligence surveillance act. intean 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. ing todaou to ensure that the tools used bs our government to keep us safe n are consistent with our values g and the freedoms guaranteed by the constitution. this committee has long exercised its responsibility too shape the legal framework unto which intelligence and law ape enforcement agencies investigate threats and collect evidence of crimes.mes. although we do not conduct day-to-day oversight of intelligence agencies, it falls to us in hearings like this to n conduct a broad review of how w our government exercises its legal authorities and whether that conduct accords with our values as americans. authornd at the outset, i want to acknowledge two things.
first, the men and women in ourn nation's law enforcement and ntd intelligence communities including our witnesses today tness work tirelessly to keep us safem 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 d,e civil liberties communities who are dedicated to keeping us safi from other kinds of threats.hern threats to privacy, freedom of speech, and due process that wn take hold when the government surveillance authorities extend too far. those who criticize and question the laws we'll be discussing esn 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 nd jealously safeguarding the sa freedoms guaranteed to us by the constitution.oms it is in that spirit that i hope to have a serious and it substantive discussion today ust about the foreign intelligence surveillance act, fisa, and thel provisions that are set to expire at the end of this year.i in response to substantial concerns that the intelligence
community had exceeded its authority under fisa, congress e in 2015 enacted the usa freedom act which contains several ed te important reforms. notably, we put an end to the o nsa's program unto which it collected the phone records of millions of law-abiding lected t americans using a highly strained interpretation of a tee provision in the 2001 usa patriot act. we reformed that provision known as section 215 to prohibit bulk collection of phone records ando other types of records. phone r instead, to collect certain kinds of phone records, we restt required the nsa to apply to the fisa court for an order based on individualized facts and on a specific selection term.sp 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.s. and we enacted several measures to enhance transparency in the d fisa court and in other types oa reporting.rere
at the end of this hearing, isa section 215 and two other fisa authorities known as the roving wiretap provision and the lone wolf provision are set to expire unless they are reauthorized byv congress.ision 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 os periods of time ever since.of te these periodic reauthorizations provide this committee and othet committees an important othe opportunity to review how these laws are used and to conduct tht kind of oversight that we are he doing here today. usedre last month, however, former director of national intelligence daniel coats sent a letter to the leadership of this committee and other committees in the house and senate asking that we reauthorize all three provisions permanently.hree at the same time, former director coats' letter ts' acknowledged the nsa has dismantled the core records
program as they've been n 215 conducted under section 215 as amended by the usa freedom act. simply put the nsa dismantled the program because it was a serious failure.riousto col nsa used it to collect hundreds of millions of phone records.dse in 2018, it discovered that it i had no authority to collect some of the records it was receivingo worse, it had no way of ds separating out which records were wrongly acquired from the ones that were collected w lawfully. so it started deleting them allm this has all been publicly reported by the intelligence community. to be clear, it is not a bad is thing that the nsa identified aa problem, told us about it and tried to fix it.tr ied to fix it. it is a it is also fine that they decided the program was not worth running. as former director coats put it, the decision to end the program was made after balancing its, 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 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 might 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 core records. that experiment has run its course. if 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 to defeat terrorism remain available to those who work tirelessly to protect our country and secure the freedoms we cherish. some 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. if it expires on december 15th, we could have been working on this a long time. i guess we've been busy on other things. the foreign surveillance 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 horowitz's report on potential fisa abuse from the presidential' leaks period. 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 extremists and their evil goals. two of the authorities are fairly straightforward. the lone wolf and roving wiretap provisions. the lone wolf provision, prevents terrorists seeking to harm us even if there's no proof they are directly connected to isis or al qaeda. 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 medieval 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. >> i 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. for the fifth circuit. mr. wiegmann 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 mcdonough school of business. susan morgan has worked in nsa operations for 18 years. we welcome all of our distinguished witnesses and we thank them for participating in today's hearing. now, if 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 entered into the record in its entirety. 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 fbi to address how they've been used in 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 of telephony metadata. in counsellor counterterrorism investigations. 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 cases tend to involve highly trained foreign intelligence officers operating within the united states or other important investigative targets including terrorism targets. the wiretap act has for decades contained a similar roving provision for ordinary criminal investigations of, say, drug dealers or organized crime figures. second, the business records authority, this allows the government to apply to the fisa court for an order to collect records, papers, and other tangible things that are relevant to a national security investigation. it allows the government to obtain many of the same types of records that it can obtain through a grand jury subpoena in an ordinary criminal case. for example, it can be used to obtain driver's license records, hotel records, car rental
records, shipping records, and the like. in most cases these are records 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 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 nitrogen-based fertilizer 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 authorities are critically important in our fight to keep the american public safe. the fbi urges congress to reauthorize these authorities because they will continue to play an important role in the fbi's national security investigations as our adversaries continue to advance. thank you for the opportunity to appear before you today. i'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 of any communication, name, 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's 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, in nearly all cases, the 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 to 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 usa freedom act, the 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 alaltogether. 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, the cdr program had its origins in an extra legal bush-era spying program. from the moment it was brought under fisa, from the moment it was brought under fisa in 2006, to the moment it was discontinued in 2019, it did not once make a material difference to a single counterterrorism investigation. at least that you can tell us about. one last question, ms. morgan, why -- 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 an open 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 favorable to the target of 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, for example, we provide the full picture. that would include -- it's not brady as a principle. that's in a criminal case, not in a fisa application. >> 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 would you call it? >> something we work hard to do at doj to provide all the relevant information to the court. >> 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 fisa to determine whether each and every fact was verified by underlying evidence, and has anybody been held accountable for the carter page fisa application to the media? >> 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. in a file. >> 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 agree 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 it's working as we had hoped. it's obviously an important balance. i mean, we need to keep our country safe. everyone 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 geolocation record to be a business record 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 records 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 information, even if 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 all of that. >> we would get that information. it's not communications content. >> i understand. >> we can't get substantive phone calls or anything like that. >> my time has expired. hopefully we will when we originally crafted these measures, we call care about civil liberties. we will craft together amendments to it. i yield back. >> thank you for holding this hearing so we can get a better understanding of fisa procedures, some of which ex pieffer pire in a few months. since the start of this congress the majority has had this committee and the american public endure issuance of subpoena after subpoena.
that's long been completed by robert mueller. yesterday cory lewandowski answered questions. he's already testified a number of time but the result remains the same. the president neither conspired or colluded with the russians toen fluns tto influence the 2016 elections. 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? >> before an fbi can seek a fisa warrant 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 a tie to a foreign power or 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 of how we do that and it elevates up to the department of justice then 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 to open a counsellor intelligence operation based upon hyper partisan memos that were written by individuals linked to the opponent's campaign, in this kashgs 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 that believes there's a national security 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 testify as to what was really happening at the fbi when senior officials decided to open the investigation. and that's really a shame because the american people deserve to learn the truth. the truth about how it was that the democratic national committee and the clinton campaign were able to peddle a fake dossier to obtain a fisa warrant and turn it into an unnecessary, expensive, time consuming investigation 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. wiegmann on the fisa opinions. the usa freedom act directed all significant or novel foreign intelligence surveillance court opinions publicly 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 of the usa freedom. 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, the way i think about it
there are plenty of opinions that will be applying ordinary legal opinions to the facts and as to a particular case deciding whether a particular individual will have probable cause and there's nothing particularly novel about that er exercise. 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 review 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 opinions 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 interest in those opinions. >> we could access them 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 disclose 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? >> disclose office of legal counsel 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 make public. some opinions are public and others are not. >> thank you. miss morgan, the nsa announced in 2017 it received large numbers of cdrs it should not have and these technical irregularities began. the agency claims it saw the problem going forward but failed to provide any evidence of any change. as a result nsa announced it would purge every single record it had collected since 2017 and in 2019 "the new york times" published a major story requiring them to stop using this practice entirely. has the nsa actually stopped the cdr program? this fim if you can answer both
of those. finally, to mr. orlando, i know where we are with respect to foreign operatives, explain the value of fisa in your work but also the necessity of some form of that with respect to domestic terrorism. 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'd like to be really clear. it was still foeben in "a" or phone number "b" with some of that information and some information was inaccurate. as such, we determined that the best course of action was to delete the records we received from the telecommunications
provider. >> mr. orlando. >> the time of the gentle lady has expired. the witness may answer the question. >> if i understand correctly, you want to know how fisa could be used on domestic terrorism subjects? >> whether you need an expansion or recharacterization, let's put it that way. >> we can only use fisa -- if the subject is not tied to an agent of foreign power, we could not use it on a domestic terrorism subject. >> i understand that. you need some kind of similar, comparable situation? >> i couldn't comment on fbi policy. we have other tools on criminal matters like title 3 for wire surveillance that we can use. oftentimes in domestic terrorism cases we look for the act of violence already a violation of federal law and something about social or hate. >> thank you. >> the time of the gentle lady has expired. the gentleman from texas. >> thank you, mr. chairman. thank you all for being here and thank you for your work trying to keep america safe. did the doj, fbi or nsa during the obama administration
consider the russian ambassador to be a terrorist or an agent of a terrorist organization? >> i couldn't comment on that. i don't know. >> i can't comment on anything outside the scope of -- >> miss morgan? >> sir, i don't have that information. >> wow! wow! that's amazing because it puts us in the position having heard that jeff sessions was being surveilled when he met as a senator with an ambassador. there are reports that we've had the israeli ambassador under surveillance, people that he met with. i don't know any of these things firsthand. just what i read and hear. but it gives me great concern because in my freshman term when we debated section 206, 215, when we debated the fisa court and then recently seen the
massive abuses through the fisa court, we kept being assured, no, 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 that are not normally associated with a terrorist organization. i just wondered if that included nations like israel and other folks like that. 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, as i was originally, with some of the language because it allows the pursuit, and this is normally going to be in front of a fisa court, apparently, that you can go after foreign intelligence information not concerning a u.s. person, but we know that's
not true because u.s. persons are constantly caught up, masked, and then as we saw in the obama administration, unmasked for no good reason. 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, clandestine intelligence activities? is that like if my neighbor kind of stands behind the curtains and watches what's going on in my yard, it's certainly clandestine, gathering intelligence? i mean, how broadly can this go? i was never really assured by the part of the law that said, these things will be done under the guidelines approved by the attorney general. gee, we may have the acting attorney general indicted here soon. i'd rather have those done under the law instead of some guidelines we have nothing to do
with. but let me also mention with regard to fisa. i understand you have abandoned the gathering of metadata, but as long as there's a fisa court, there can be another application, an affidavit that violates the fourth amendment's requirement of probable cause and supported by particularly describing things to be seized. and when i looked at what was disclosed of the order regarding verizon, apparently everybody got one, everybody complied except quest, and i understand the head of quest may be in jail, but this just says, give us everything you've got on an ongoing daily basis with on-call details. there was no probable cause of anything. there was no particularity. so, even though we may have abandoned those programs, as long as there's a fisa court, and we don't have proper
safeguards for people's civil rights in the united states, then you could go back right back and we can get into a constitutional discussion on metadata, p.i.n. registers and things like that. as long as we don't have reforms in the fisa court or do away with it and go back to the old way of protecting national security, 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 just going to keep reauthorizing. so, i have significant concerns. and also, i'm amazed here. you get an order that allows -- it says, come -- metadata between u.s. and abroad and wholly within the united states, including local telephone calls, but nothing to do with all of those in foreign countries.
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. so, that all causes me concern. i was delighted to hear my friend from california say she wanted to work with both sides. we definitely need reforms so you don't have to be back here and squirmi ining because of th 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 yields back. the gentleman from tennessee. >> thank you, mr. chair. i appreciate all the work you've done in your agencies. what the department of justice does, what the fbi does and protects our country and it's sad 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 most americans appreciate what you're doing and i certainly do. i'm concerned about first amendment rights and i just want some assurances, mr. wiegmann, if you can help me with this. the law makes clear when the government seeks business records involving american citizens or permanent residents, the investigation questions cannot be conducted solely upon the basis of activities protected by the first amendm t amendment. how does the department look at this, the justice department, is there any review conducted internally to make sure that first nonamendment factors are objectionable? >> thank you for the question. that's a core provision and general provision of fisa that we cannot engage in investigative activity solely on the basis of first amendment protected activity. let me give you an idea of what that means. it's a first amendment right if you want to say, i support terrorism or i support al qaeda or -- >> i like beer. >> right, whatever. >> if you want to say those
things, think those things, that's your right. and so we could not -- we could not open -- get a fisa warrant or use business records application when -- solely on the basis of that type of speech. however, if we have more than that. if the person is saying those things and also in touch with people in isis, in syria, or in touch with people in al qaeda in afghanistan, and they're having communications, we can still consider the fact they've made these other statements because that gives us context to evaluate whether this person is an agent of a foreign power. you can see how speech in and of itself that might be first amendment protected could be combined with other speech or other conduct and paint an entire picture in which you come up with a conclusion that someone is an agent of a foreign power or a valid target. 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 analyzed whether section 215 has disproportionately been used on specific minority groups, muslims in particular, hispanics in border communities and how do you go about assessing that and what are you doing to make sure there's not a disproportionate impact? >> i'll let mike also address this. fbi cannot initiate any invest greattive activity, solely on race, religion, gender, nationality, et cetera. it's the same kind of provision solely. let's say we had information indicating someone of german nationality was coming to the united states to engage in a terrorist attack and is that may be a bit of information we can consider together with other pieces of information to determine if someone was targetable. if that answers it. >> thank you, sir. can you commit one of your groups that you'll do a disproportionate impact oaudit for us, just to -- >> i could certainly take that
back. >> i can take that back to the fbi as well and echo some comments, we can't open a case on anyone based on first amendment protected activity, race, ethnicity or religious groups. we look at the activities of the individual. that's how we make a decision about opening cases and then the probable cause to move forwards fisa. >> thank you. can you tell us when fisa was first passed, which i guess was right after 9/11, a lot of -- is that not correct? >> it was actually -- >> there were changes after 9/11. >> there were changes. it was enacted in 1978. >> right. the changes were pretty strong. and had an acronym about trump/bush -- >> the patriot act. >> thank you. >> a lot of people reacted adversely to it. can you assure me and some of my liberal friends who had those concerns that there have been quite a few amendments to take care of some of the concerns that originally arose? >> there have been with respect to the expiring authority and a number of amendments over the years. a lot of oversight over the
years. congressional oversight, the court, the executive branch. from my perspective we have i a robust system to make sure these authorities are used properly. >> thank you. just let me close. it appears that some on the other side have got a problem with a lot of things that have gone on in law enforcement. i read all those fisa applications in the carter page case and saw nothing wrong with any of them. all the information was given to the court concerning the fact that the dossier that was there was not the russian government. it was a british official. so it wasn't russia. and it was started by the republicans, i think. regardless of that, that was only a small factor. there was lots of information there to protect our country from russian interference. and i thank the justice department, the fbi for their work. and security folk. too much has been put on you. and the biggest threat to you is a president who doesn't tell the truth. and has access to information and the ability to counteract the good work that you're doing.
so, keep doing you're good work. i yield back the balance of my time. >> the gentleman yields back. the gentleman from texas is recognized. >> thank you, chairman. as a former u.s. attorney, was and still is my opinion that fisa is an important tool in the fight against international terrorism. it is estimated that 25% of our actionable intelligence on foreign terrorists comes from fisa authorities like section 702, which isn't up for reauthorization, but my point is that properly used, reauthorization of certain fisa authorities should be noncontroversial and should be bipartisan. the problem is that many of us, as has been point out, including those of us with access to classified information, have seen what appeared to be egregious abuses and misuses of fisa authorities and corresponding misrepresentations before the foreign intelligence
surveillance court itself, specifically as it pertains to obama administration doj and fbi officials in securing the fisa order on at least one u.s. citizen back in october of 2016 named carter page. many of us do believe that the obama justice department verified an unverifiable dossier that was funded by the democratic party to secure an order allowing for the surveillance of that former trump campaign associate, mr. page. many of us also believe the obama justice department had exculpatory evidence on the issue of probable cause that was not provided to it the fisa court, at least want 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 just heard mr. cohen say the same thing.
democrats generally have expressed that opinion. the former fbi director, former director comey, says the idea of fisa abuse is nonsense as it pertains to carter page. i and many of my colleagues disagree with that. i'll just leave it at, the inspector general has written a report and we'll see who's right and we'll see 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 that they were not followed. and will offer recommendations to correct that. but again, we'll see. so, i want to use my time to focus a little bit on mrosz. let me just start out 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 identify stated earlier, we open cases based on facts that they are agents of foreign powers. i can't comment on anything outside the scope of the freedom act today. >> anyone? special rules for surveilling political campaign? >> i'm not familiar with it, to be honest with you, sir. i can't say one way or the other. >> so let's then use the existing framework we know of. when the government is presenting a case with respect to u.s. person like carter page, the fbi is required to verify to the foreign intelligence surveillance quarter that that evidence is verified, correct? >> when we draft application, we have a woods file that contains supporting documents to back up the facts. >> does the department of justice, are they required to disclose to the foreign intelligence surveillance courtney exculpatory evidence? is there -- in criminal cases we
have what's called the brady requirement to disclose exculpatory information. does that something brady-like apply before the fisa court? >> as i said before that's not brady because that's a principle in criminal law in that context. yes, my understanding at least, subject to getting back to you on this question, but i think the answer is, yes, we do try to provide the full picture to the court when applying for a fisa court. that means evidence both indicating the person -- that there is probable cause that the person an agent of foreign power and information that would suggest to the contrary. >> so, in the case of carter page, if all the court heard was the arguments of the government seeking a warrant, no counterarguments presented, questioning the motivations of the funders of this deal dossier, no cross-examination about the veracity of the dossier itself or about the credibility of the dossier's author, mr. christopher steele, what safeguards are there in the
fisa process currently to make sure that those obligations are met? and what as a practical matter would prevent the appointment of an attorney ad litem provided you could meet the security clearance requirements, maybe taking someone from the justice department's civil rights division? >> so, if i answer your question, i guess your question is -- >> the gentleman's time has expired. you may answer the question. >> your question is whether we should have something like an amicus to represent the targets of fisa applications? is that the -- is that your question? >> and to be able to probe the arguments the government is making to take the extraordinary measure of surveilling a u.s. citizen. >> so, i guess one thing i would say is we have to remember that fisa is really in the national security world the same thing as i'm sure you're with an
ex-attorney with wire free tap. we don't have amicus or participation in that context. i'm not sure why it's necessary or appropriate to have an additional lawyer in this context. we do have ex-party proceedings in the ordinary course when we're doing wiretaps of a drug dealer or organized crimes. i'm not sure i would see the need to have an amicus when it's a spy or 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 he was inaugurated he paid a visit to cia headquarters out in langley, virginia, and he stood in front of the hollowed ground of the memorial wall where the names of cia operatives, men and women, american citizens, have given or 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. and 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 since then he has continued to do everything he can to
destabilize public opinion about our intelligence professionals and the work that you do. and you've had to work through that. and so i appreciate you coming here today. i appreciate you continuing to do your work without political bent of mind, but strictly and single-mindedly for the protection of the american people, and i thank you for that. this hearing is about oversight and should not be about politics. 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, miss morgan, you mentioned that the cdr program has been suspended and nsa is tasked with execution of the cdr program, correct?
>> nsa operated the cdr program. >> and has the cdr program or that authority under the program been used in any way, the metadata 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 telecommunication 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 in how to handle that particular data and the rules associated with that data. those analysts would look at the data and if they had foreign intelligence insights to share based on that, they would report it to authorized channels through 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. now, mr. orlando, the call detail records provision says that these records cannot include cell sites or gps information, but other parts of the law governing other types of business records don't have that express prohibition. so, what i want to know is, does
the government collect geolocation information under section 215? >> i'm going to defer that question over to my colleague at doj. he's better suited to answer legal and authority questions. >> yes, sir. mr. wiegmann? >> so, as i think i mentioned earlier, there are some -- there can be some fourth amendment issues in that area. to get to really answer your question, i prefer to answer that in classified session. >> thank you. 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 maybe from a slightly different angle, but in light of carpenter, do you believe you have the authority under 215 to obtain cell site location information from providers? >> sir, i'd prefer to get into that -- i'm happy to give you that information, congressman. i'd just like to do that in a classified briefing. >> okay.
and so -- this may elicit the same response but has nsa or doj received any guidance in light of carpenter? >> no. >> no guidance? nsa? >> not to my knowledge. >> okay. has doj ever notified a criminal defendant that information in his or her case was obtained through a section 215 order? >> no. it's not required by law. there's no provision for that. >> why is the number of accounts impact so substantial given the number of targets? in 2018 the government collected information 214,816 unique accounts yet only 60 surveillance targets. >> sir, just to clarify, i assume you're referring to the numbers reported in the annual cdr? >> yes. >> okay, sir. >> so, i think it's -- two
things i think are important when you think about those numbers. one is putting those numbers into context. so every day in the united states there are billions of telephone calls made a day which can generate multiple records. so 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 not -- no longer using, we're authorized to get up to two hops from the -- >> right. >> so that as you would imagine, will expand your numbers exponentially. >> does nsa believe it has the authority to restart the program? >> sir, currently we believe that already exists. >> okay.
do you have authority -- collection authority that's replicated under any authorization or any other authority? in other words, some -- 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 existing -- the program as it existed. >> i'm not following that. >> so if -- so let me get this back. if i understand the answer to the first question is, you do believe you 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 get -- garner the same information? >> there is no other legal authority whereby we could establish the program that we recently shut down. >> okay. very good.
thank you. so fisa order on a u.s. citizen carter page was divulged to "the washington post," and i think you answered this earlier. has anyone been held accountable for this illegal disclosure? there's been no woods review? you don't know whether there has or not? >> i can't comment on that in any way because i don't know the answer. >> okay. so, i want to make sure i understand something mr mr. orlando, i thought you said, and i jotted it down, i'm not going to quote it because i'm sure i messed it up. i'm just asking for clarification here. i thought you might have said something to the effect of you used fisa authority to cultivate obtaining probable cause. is that -- is that a fair characterization or did you say anything like that at all? >> no, we use some of the business records and other authorities to develop probable cause to support fisa. >> so the -- so you're using business record authority, okay.
so, we have indicated that you don't know whether woods review was on carter page fisa application to determine if each fact was substantiated. can a regular news article serve as underlying evidence to verify the accuracy of a fisa application? >> if i understood your question correctly, you are asking if a news article is appropriate to be used if the information in pulled from a news article it would have to be included in the woods file. >> so the answer is yes? >> yes, but there is often a lot of other facts that are put into the file for the probable cause. >> and with that my time has expired. >> 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're 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'd like to focus my questions on the role of an adversarial process in that particular way. mr. wiegmann, i'll begin with you. a significant reform in the usa freedom act was a requirement the fisa point ame cuss to other side of the cases presenting novel or significant interpretations of law. the annual report on the fisa court's activities for 2018 issued by the administrative office of u.s. courts states the amicus was appointed on nine occasions last year. is that right? >> i don't know that exact number but it sounds in the right ballpark anyway. >> and then the report for 2017 states that no amicus were appointed at all that year. but also something kind of odd. it says on three occasions the fisa court told the government it was considering appointing an amicus because the proposed application raised novel or significant yeses, but then the government either with drew the
applications or modified them in a way that apparently convinced the court not to appoint an amicus. understanding that this is an unclassified setting. can you explain, as best you can, what happened in those three incidents? >> so, i don't know in those particular three incidents but i can tell you there is a process where it's a little unusual that you wouldn't see in a regular criminal matter where we provide read copies to the court in advance. and so this is essentially a draft application. and there's a give and take sometimes between the judges and their assistants, their staff and our attorneys. and 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 or novel. >> 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 were. >> i could certainly take that back and see if we can get you that information. >> thank you. the law also requires the fisa court and government to give those who file amicus access to all materials deemed relevant to their duties including precedence or applications. as far as your information, have any amicus been denied information? >> not that i'm aware of. >> >> have they been denied to pete with other individuals to prepare their cases? >> not that i'm aware of. >> does the fisa court have the ability to appeal or notify the fisa court of review? >> you're asking a good question. there is -- i'd have to look back at the law. there is an apell atlanta mechanism. i'm not sure if they have the standing to bring an appeal or done in a different fashion.
there is an appeal mechanism. i just have to get into that issue. they certainly can participate in appeals when an appeal is brought. i'd have to get back to you as to how it works. it's a slightly different mechanism but there is a mechanism for appeal. >> it's my understanding only a handful of opinions from the court have been published. how does the doj determine which opinions are novel or significant enough to be published? >> it's an evaluation. case by case evaluation. there's many -- the bulk matter of fisa are routine. you're applying it is law to the facts and determining if there's probable cause to target a particular individual. those are routine. there is a smaller number that -- a particular type of data can be collected or new issues, new expansions of an authority. we're evaluating that on a case by case basis and determining -- >> what i'm interested in knowing, how many opinions of that definition fit significant or novel but are not published?
>> we have to provide all of those to the committee under the freedom act. all of those must be provided. and we also have to undertake, i believe, a declassification review to determine whether we can redact and release any of those significant or novel opinions. so, that's in the law since 2015 that we have to do that. >> and all of those declassification reviews are current? >> yeah, i mean, there may be some that are a work in progress. in other words, there may be some that are ongoing. but -- that haven't been done yet but they would be under review. >> my final question, mr. wiegmann, is -- has the department of justice notified all criminal defendants who are being prosecuted based on evidence derived from the use of section 215? you're required to do it, obviously, for prosecutions with evidence from 702. but whether -- i'd like to know whether you do it with respect to 215. ? you do not, why not? and whether you'll commit to such notification? finally, is there -- would there be a problem if congress were to amend section 215 to require
notice to a criminal defendant in the same way we do under section 702? >> so, we don't provide notice to criminal defendants for use of information under 215. other provisions of fisa, title 1, 2, 702, congress has not in a mechanism we give notice if you plan to use information derived from that person. there is no such provision currently in the law for section 215. the reason for that, again, i think is is that 215 is like a grand jury subpoena. it's an authority to allow us to collect third-party business records. generally we associate notice and suppression mechanisms with your ability to challenge, you know, the invasion of a constitutionally protected privacy interest. that's generally not done in the law in context with third-party business records. that's the model incorporated into fisa.
>> i yield back. >> the gentleman from louisiana. >> thank you, mr. chairman. thanks to each of you for being here. just a few questions about the constitutional. there's the fourth amendment protection against reasonable sxempb seizure apply under section 215 of the patriot act? >> no. so, a person does not have a reasonable expectation of privacy in third-party business records then, is that right? >> that's -- yes. >> is it true that a 215 order provides greater privacy protection than a grand jury or administrative subpoena, which can be used to obtain the same types of business records in a criminal investigation without prior court approval? >> that's correct. insofar as, for example, most grand jury subpoenas can be issued by assistant u.s. toe attorney. here we have to go through the court and make a specific showing which we would not have to do in a criminal case. it's more protection not less.
>> if the fourth amendment applies to foreign countries, do other american protections under the bill of rights apply? for example, the second amendment? what about the due process clause? >> i'm not sure 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 may be monitored because they receive a phone call from someone who's the target of the title 3 wiretap. traditionally those calls are subject to minimumization procedure. is the same true for collection of content under fisa? >> yes. it operates differently under title 3, under the criminal context. it's real-time minimumization. they're turning on and off the wiretap during the conversation depending on whether they're collecting information relevant to their investigation or not. in fisa it's done after the fact. so if you received that information, if it's a foreign target, they're in communication with a u.s. person, then the
minimumization process, there are procedures in place to try to minimize the collection, retention, et cetera, of u.s. person information. that is done post hoc that process is done post hoc and that's the stage in which they're doing the minimization 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. at the end of the day you have to have trust that those that have that authority are going to switch at the right times, but i know that's an impossible thing to speak it. >> just to be clear. 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? so, can evidence obtained through intelligence collection be used in a criminal prosecution? under what circumstances?
>> yes, it can be. assuming that they get approval from the attorney general to use it. we get the approval from the intelligence community. it can, as a general matter, be used in a criminal case. >> i'm going to yield back, mr. chairman. >> the gentleman yields back. the gentleman from california, mr. lieu. >> thank you, mr. chair. thank you, all, for your public service. i'm going to start by simply correcting some misstatements of my republican colleagues related to the counterterrorism investigation of carter page. here are the facts. the fbi's counterterrorism program included in part the carter page fisa warrants. that entire investigation helped lead to the mueller special counsel investigation. special counsel mueller's investigation resulted in 34 individuals being indicted or companies being indicted, of which eight have been convicted
or pled guilty of violating american criminal laws. the mueller report showed russians are engaged in a sweeping and systematic attack on our elections. it showed the trump campaign knew about this attack, they welcomed it, they gave internal polling data to russians and then they planned their campaign strategy around that russian attack. we should be thanking the fbi, not trashing them for getting this information out to the american people. those are the facts. now, i have questions today about the call of detail 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 nsa analyst have a phone number, say, and they have a reasonable suspicion that phone number is used by a foreign power engaged
in international terrorism. we work at the nsa with our doj and our fbi colleagues to draft an application to the fisa court or the attorney general in an emergency situation. fisa court reviews that information we present to see if we've met the standard, reasonable suspicion. if the fisa court proves that application, then the telecommunication providers are compelled to provide us with the metadata associated with that phone number. so, there is a court -- >> but before that you -- before the purge, you had all 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 had -- sir? had technical irregularities which resulted in the purge. >> so, you had hundreds of thousands of records that went
through the fisa process? >> the fisa court approves the specific selection term. the records that we get that are associated with that term 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 prospective records for as long as the order is in place. and we're also authorized to get what we call two hops out from that original phone. >> can you explain what that means to the american people? >> absolutely, sir. so, if the court approves a phone -- say, my phone number is associated with international terrorism, an agent of foreign power, going through the court process, they've approved. i'm authorized to get metadata records of other phone numbers that have been in contact with my phone number. so, for example, 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 am authorized to get that. two hops. i'm authorized to get that retrospectively as well as ongoing for the duration of the court order. >> thank you. earlier it was stated that part of that also would include driver's license information. >> to be clear, that's traditional use of 215. what was just being described is the cdr program. the cdr program has nothing to do with driver's license. there's a separate -- the regular, ordinary uses of business records allows you to get thins like driver's license records, hotel records. that's mortar getted. that's based on the relevance of those records in a particular investigation. >> would that also include images, like the picture on the driver's license as well? >> i -- >> i'm not certain. we can go back -- >> let us know. >> we can let you know. i don't actually know. >> so, thank you for your answers. my personal view is that this
cdr program, also known as metadata program, to me it does violate the privacy. the government could tell, for example, just metadata, whether a person called a suicide prevention hot line or a call that was anonymous or sex chat line or bankruptcy lawyer or a divorce lawyer. so, to me that's just too information for the government to have, in addition to the two hops, i think it captures too many people. without a greater showing of why this system is efficient or resulted in an actual concrete ee vanders to government, i'm unlikely to support it for reauthorization. with that i yield back. >> the gentleman yields back. the gentleman from north dakota. >> thank you, mr. chairman. i just want to say, i have never worked with the nsa because i was a lawyer in north dakota. but i'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 can't do. also the best and most aggressive ones, particularly i'm assuming in this area are -- 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 court's job to set where that wall is, so you can -- you can keep running into brick walls and doing what you're doing to keep our country safe. i do want to go back to something mr. ratcliff was talking about. we were doing the context between this gathering -- or these type -- this type of information in criminal cases. one of the things that was stated was that this happens a lot in criminal cases, ex parte wiretaps and all of that. i think one of the fundamental differences we have is eventually i get it all, as the defense, in hey straightforward criminal case. i get it all. i get to go to brady. i get to go to carpenter.
i get to go to all of those things. and that's what i think we miss sometimes in this in how we deal with it. i know the difference between carpenter and essential real-time tracking of your actual location versus business record exceptions. and i -- this is a perfect example, i think, of where we get to that. but do you know how many fisa-derived informations have been used in criminal -- or 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. if you mean have we -- how many cases have we used fisa information in a criminal case? including title 1 fisa, title 3 fisa? many of those cases since the -- since the late 1970s when fisa was first adopted. it's not a massive number but i wouldn't have an exact count how many it has been. there have been over the years many different cases.
>> and i would just -- outside of everything, i've never wanted a half hour longer in my life to ask questions, but so -- and how do you transition the intelligence-gathering? we 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. there's back and forth going on about the carter page case and all of that. the problem with a lot of this, we only hear about the hard cases. i mean, we don't hear about a lot of other things. there's -- so -- i'm all over the place because i have many questions i want to ask. so, how does the woods review work? >> i'll let mike answer that. >> sir, if i can go back to your original question and answer that. >> yeah. >> i think an espionage case is a good example of oftentimes we use fisa to build that case and then we bring that to a criminal conclusion. as we build that case, we make sure that that fisa, that information that's there that we have to turn over that's rel vanities to that case gets
declassified to turn over to the defendant. >> so, i have a question. 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. >> for instance, i was talking to a drug dealer, would be how -- just that specific fact pattern. >> i don't have any specific background on that, sir. >> i'd have to get back to you and see how often that has come up. >> that's where i think the conflict comes in for people who are not naive and want to keep our country safe but really do care about how the due process clause, civil liberties apply once we end up in those situations. >> just to be clear, again, if we are using that fisa, the product of that fisa in a criminal case, we have an obligation to give notice to the criminal defendant. they have then the ability to challenge the use of that fisa information in court. there's a process set up in the statute. that's been done many times again. typically terrorism cases,
espionage cases and the like. >> in regards to the woods process, agent starts drafting an application. once he's complete, he sits down with the supervisor. they review it together. and every fact he has to be able to show the supervisor where he got that information from. all that material goes into a book for review. >> and this goes back to, i think what several people -- mr. cicilline, mr. ratcliffe were talking about. we said the amicus attorneys get all relevant legal information. i think some of us would be more -- i don't care if they have the top classified clearance that we exist in the world. but what would be the problem with having somebody in -- an amicus lawyer in all of these hearings at their onset? >> so, this is something that was considered back in 2015. our judgment at that time, and i think it remains our judgment today, is that would really slow down and bog down the process in the fisa court. if you had an amicus participating in every fisa
application was an adversary proceeding -- certainly if we had that in title 3 context where we're doing ordinary criminal wiretaps, have an adversary proceeding would make the process untenable. >> thank you. and i don't necessarily see -- i think the oversight part of this that i would be looking at -- i mean, i don't want them to have all relevant information. i want them to have it all and be able to review it and deal with those. i don't necessarily think it would potentially have to be adversarial in the hearing. i would just want them to be able to deal with that. because the consequences of withholding information, those type of issues only come to bear if somebody finds it out which is typically very challenging when there's only one part of this process being presented. so, i think there's way -- 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 being done correctly. and with that i yield back. >> the gentleman yields back.
the gentleman lady from washington. >> thank you, mr. chairman. 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. particularly after the patriot act we tried to address those things. i think there's still issues that remain on the table as we look at reauthorization. so, i wanted to go to the -- to the cdrs 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, miss 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. does that sound -- i know you don't have the report in front of you. it's quoted from the report. >> ma'am, that sounds -- that sounds accurate to me. >> so, 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. and 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 -- >> of course. >> -- clarify? so, the components that we use, that we're talking about today, is really the cdr provision from an nsa perspective. i would defooer dedefer to my colleagues -- >> sure. we're moving to broader issues of 215. mr. wiegmann, if you want to address that. >> i'm not aware of it ever being used to get medical records. i mean, in the -- >> but it could be? i mean, the way the provision is written, the way that section 215 is written, could it be used to obtain medical records? it can be used to obtain driver's licenses. >> i'm not aware of us ever seeking us from medical records. i would say the circumstances i can think of us wanting that would be very limited. >> but 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 would have -- i think we'd have to look at the provision closely to give you an -- >> okay. how about tax returns?
do you collect tax returns from millions -- hundreds of millions of americans? >> we certainly couldn't get it from hundreds of millions. you have to show in each case with a statement of facts that these individual records are relevant to an authorized investigation of counterterrorism or for counterintelligence purposes for a u.s. person. so, that's going to limit dramatically. you're not going to be able to do that. you also have to use a specific term because congress put that in. you can't do bulk collection under 2015. there is no ability to collect hundreds of tax records. >> clarification. you could potentially collect it, though, but perhaps not with the scale that i mentioned with -- >> right. so it's the -- the law specifically mentions tax records and says in the case of an application for. an order requiring the -- let's say, book sale records, firearm sales and then tax return records or medical records, so medical records are also
contemplated in the statute, then that has -- that application has to go to a higher level review. so the director of the fbi, the deputy director, and i think the executive assistant director. to answer your question, the statute contemplates getting medical records or tax records but recognizing the sensitivity of those types of records they're elevated for senior review. i'm personally not aware if we've ever done that -- the connection of a medical or tax record to a terrorism investigation or counterintelligence is, i guess, unlikely but it's possible. >> then you might be supportive of excluding those kinds of records? >> i don't know that we would like to exclude because you never know -- if those records meet the standard and they're relevant in an authorized counterterrorism many, counterintelligence krefg investigation, then -- >> i'm hearing you but i am deeply concerned about the kinds of information we collect. miss morgan, you mentioned earlier that 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. 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. you know, when we authorize this and we see what happened with the cdrs, i think that's an indication of the challenges we face. thank you, mr. chairman. i yield back. >> gentleman lady yields back. gentleman lady from florida. >> thank you, mr. chairman. thank you all for what you do every day to keep us safe. if we could go back to follow up on my colleague's questions. whatever the information is, that it would have to be relevant, i believe. could you talk a little about the checks and balances of the fisa court application system
that would maybe relieve some of the concerns there? >> to begin with, first we have to open a case which has to have supervisor approval. as we move forward to do a business record, it goes back to supervisor review. all the way up the chain over to our headquarters where there are a number of lawyers that look at that application to make sure we have the right relevancy relevant to a national security investigation and then moves over to department of justice for another series of attorneys who look at it before it goes over to the court. so, there are a number of individuals and supervisors that are looking at these applications. >> you also have -- >> so would -- >> you also have to have a statement of facts. you can't assert it's relevant. you have to have the facts showingist relevant to the investigation. and then you also have to show it's not based on first amendment protected activity and present all of that to the fisa-e court and the fisa court has to agree. there's an elaborate process that i just describes and then
it ends up with a judicial approval. >> thank you. moving on, mr. orlando, to roving wiretaps. when the government applies to conduct electronic surveillance under fisa, it always -- does not always necessarily have to identify the person being targeted. the law requires you to state the identity if known or a description of the specific target. at a general or hypothetical level, can you describe why you might not know the identity of a particular target and would instead provide a description of the target? >> i think in -- >> or in most cases do you know? >> i would say in all my experience we've alleges known who that individual is. the roving authority gives us the ability if they're using trade craft to elude us to we get secondary orders so we can go to multiple facilities but we have to go back to the court in ten days to describe what we have done. the only circumstance hypothetically i can think of is if there's a pending threat and we don't have a name but we have
a number of identifiers of what that individual is, if we can possibly present a case to the court that we think it's this type of person because it he meets all the identifiers might be that might be that -- identifiers might be that. >> i think the cyber context is one in which you can imjun you might have a lot of information to identify an individual but may not know that person's name and so i can give you more information about that. i think if that's what you're referring to the cyber context would be the context that would be applicable. >> with the roving wiretaps could you describe why you feel this provision is so needed and terrorists or national security threats have been detected or prevented as a result of it and if it's classified give us a hypothetical. >> i can talk about counterterrorism hypothetical situations. on the counterterrorism side
those radicalizing and mobilizing very quickly. we have to disrupt them faster than we've had to disrupt them in the past 20 years. they are involving with their trade craft. instances where they change their cell phones and e-mails and on-line profiles quickly that roving authority helps us keep pace. if we didn't have that authority we would have to repeatedly go back to the court or seek emergency authority and get the order thereafter to cause delay. on the counter intelligence side, foreign intelligence sthafrsz have highly trained officers trained to evade fbi surveillance, able to come into the country, change cell phones, e-mails, rented vehicles, this gives us the capability to keep pace with them. >> i believe it was said earlier the lone wolfe provision has never been used? >> yes. >> i find that surprising, and what -- the concern you just expressed, could you give me some examples of how it could be
used to decrease domestic terrorism. >> i don't believe it applies to domestic terrorism. what i will say for the lone wolf statute with homegrown violent extremists these individuals are here in the united states, for that statute they have to be a non-u.s. person but have a global jihadist ideology. homegrown are not taking dprex a terrorist organization. to date we have been able to thwart those activities finding other ways of getting fisas or making some connection. with this evolution i foresee the possibility of using that statute where the threat is evolving and people are using mixed mixed ideologies. >> the gentleman from california. >> thank you, mr. chairman. i would like to add my voice to colleagues that express appreciation for your work protecting our country and our citizens, but also wanted to add my concerns about civil
liberties privacy. we're not a police state. our security to a great extent relies on the trust of a population in our governmental institutions and police so to speak. in my district we probably speak 100 different languages. i think about my district as being the new ellis island of the united states. i have people from all over the world literally from all over the world living in my district and trust in our police agencies is paramount. to give you an example, a few years ago we -- i didn't, but neighbors arrested a rapist in the act of raping a woman. he was convicted of 20 rapes. we think there were more victims but yet those victims never presented themselves because they were fear -- there was fear of the authorities and many of them were undocumented.
i wanted to follow up with some of the questions congressman cohen touched on, which was the impact of sections 215 nonminority communities, specifically, your information that you gather is it shared with immigration enforcement authorities? >> there would have to be some crime that relates them before we would share information with them. >> so let me help you clarify for me, it is not shared with immigration authorities unless it is relevant to some specific crime, some national interest of specific criminal acts of terrorism or otherwise? is that what i'm hearing? >> it would have to be done on a specific case by case where there's relevancy for us to pass it. >> specifically, wiretap, you suspect somebody in one end or the other of the u.s. may have a question of immigration status that information is not
automatically turned over to immigration enforcement authorities? >> it would have to be relevant. for instance, if we determined that we have a terrorist threat possibly coming through the border we would turn it over to our partners in cbp to assist us. >> in that terrorist threat is 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. >> miss morgan? >> yes, sir. as i stated before, we used the cdr program to focus on mitigating threats from international terrorism. if we find information related to international terrorism we'll report it out to entities authorized to get that information. >> mr. wiegmann. >> in their minimization procedures under all fisa authorities when you can
disseminate information. the general standard it has to be foreign intelligence information necessary to understand foreign intelligence information or evidence of a crime. generally speaking -- >> that crime would not be immigration status in this country? >> that's a good question as to whether someone illegally entered would that be a crime so if you had evidence bearing on that as a crime, i don't know, maybe that's possible if the information was evidence of that crime. >> could you get me more information on that, under what circumstances that may be possible or not? >> sure. >> my question is, your information shared with immigration authorities on the fact that maybe somebody here, their immigration status is not correct so to speak. >> i will get back to you on that. >> i would like -- i can envision a situation, you have a very powerful tool at your disposal. information, wiretapping.
you could very easily turp 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 only use these authorities to counter foreign intelligence services and foreign terrorism organizations and international terrorist lone wolf or international terrorists. >> i would like something in writing from each of you. i just want 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, maybe it only applies to maybe international, not domestic. i want to know what tools you need to keep our population safe in the u.s. from emerging domestic terrorism threats? with that i yield. >> the gentle lady from texas. >> thank you, mr. chairman, thank you for holding this very
important hearing and 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 working your agencies, not only in your offices in d.c. but in the field, where the real work happens. i, too, have worked with at least doj and the fbi and a number of occasions in my capacity as a judge and a 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. but however, when we look at the whole picture, i know that it's all about a balance, isn't it? the national security, our threats, versus the privacy of individuals versus some of the other things that we've got to balance. i wanted to start with you, miss
morgan, i was, you know, to clarify for the audience watching at home perhaps, we get a letter from your agency that says that nsa has suspended the call detail records program, deleted the call details record, this decision was made after balancing the program's relative intelligence value, associated cost and compliance, you know, if we've suspended it, and you keep saying you need the tool in your toolbox, obviously in my toolbox if i have a broken hammer i throw it out. i mean why is it that you suspended it and think you need it? i know you said that emphatically as a professional that 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. as we've stated and was stated in the letter we made the decision to suspend the program after we balanced the intelligence value that did exist in the program when it
was -- >> but you said there was a lot of matrix but only referenced the ones the chairman talked about. >> i'm sorry? >> you talked about a lot of matrix that go into that decision but only mentioned two i believe the chairman mentioned. what other matrix do you all consider? >> so we -- when we evaluate our intelligence programs we're going to look at them across all the different programs we have -- >> we talked about two. what others do you look at? >> what others do i look at? >> uh-huh. >> in terms of making decisions as -- on value, that is what you mean? >> yeah. why we should reinstate the program? authorize it? >> so what i would say is that as i sit here as an intelligence professional and i started my career in 2001 as an intelligence analyst, and i can tell you that you can't -- you never know what you're going to confront in the future -- >> you've told us all that. i want specific matrix that you all look at to determine whether
or not that you want the program reauthorized after you've already suspended it? >> ma'am, can you help me understand what you mean by matrix. >> i'm using your own words. >> i think you mean metrics. >> i'm sorry, ma'am. i thought you said -- >> i did say matrix. i apologize. >> i apologize for that. >> it's been a rough week already. >> it's been a long day. but metrics. so what i would -- what i would say is a couple things. so one is you're not always necessarily going to have metrics because the intelligence profession is not something that can be specifically measured and you can't necessarily measure the information, the lead information, that i got over here ultimately weeks, months, years from now actually led me to have this significant picture that provides me with critical insights from a foreign intelligence perspective. 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, discussions with our colleagues to say hey, we reported this information out from this program has it been of value to you, how has it been of value to you and then you're going to take that information and make a decision based on different factors that you can consider. but you're not necessarily going to have this program i rate a 5 and this program i rate a 3. >> if you want to keep it in case you might want to use it. i'm not sure i agree with that. i have to cut you off because i quickly want to ask a question from the fbi folks. a number of companies offered genetic testing services to test for genealogical research, detection of carrier status, inherited conditions. is any of that also subject to
the fisa, to 15 activity? >> this might be one of those we need to refer back to the book again. i'm not familiar of any time we have asked for that type of information. >> okay. >> so again, the 215 authority is like the grand jury subpoena. you can request any type of tangible thing or record provided you have established it's relevant to an authorized investigation and specific facts that show that. it seems unlikely again as i said earlier with respect to medical records that would be the case -- >> what about -- >> it's not ruled out because it -- i don't know what the fact pattern might be, could there be a fact pattern that was relevant to an investigation? i don't know. >> if i -- >> what about the videos, the new doorbells that you go to the door and there's a video camera or the video surveillance at the front door. >> that could be relevant in an investigation, i'm sure that would be -- i can envision
scenarios that would be relevant. >> if i can add on the business records, mostly what we use it for is a building block. we open a case, identify a subject, telephone numbers, e-mail addresses, we'll go to the court for a business record to identify the transactional records not the content to see who he is talking to and build a connection to the terrorist organization to identify the network end that have our analyst look at that and then use that to aid us to building the probable cause to move to a fisa court authorized surveillance. >> thank you. my time has run out. i yield back. >> the gentle lady yields back. we thank all of our witnesses for participating. without objection all members have five legislative days to submit additional questions for the witnesses or additional materials for the record. without objection the hearing is adjourne
team is traveling across the country visiting key battleground states in the 2020 presidential race. asking voters what issues they want presidential candidates to address during the campaign. >> and i wish washington and congress would work on infrastructure. every other generation of american leaders have funded airports or subways or roads and bridges and we're failing to do our part. this will be the first generation of elected leaders where we left our infrastructure if worse condition than we got
it in. we should demand our leaders invest in infrastructure and make sure we protect another generation of americans and put to people -- put people to work at the same time. that's the great thing about investing in infrastructure in is had country. >> one of the biggest issues dealing with all americans across all spans of economic and education is the use of credit scores being the deter nepts on automotive rates, life insurance and employment. most don't realize your insurance has more to do with your credit score than driving record. want to apply for a job your credit score is pulled, applied for apartment it's pulled. you're not asking for a loan. if you are a fresh graduate college student with zero credit and a lot of bills, your credit score is going to be low and your access to apartments because of your credit score, not because of your payment history or your job prospects and proof you can pay the rent your credit score determines
everything and that's putting everyone out. >> the issue that i would like to see discussed more in washington, d.c., is the importance of bipartisanship. i think we as americans have more in common than we probably have disagreements on. i would like to see us talking about the importance of reaching across the aisle and those points when we don't disagree finding common ground and working for that. because the only way we can really move the nation forward is to work together. >> voices from the campaign trail, part of c-span's battleground states tour. campaign 2020, make up your own mind, c-span's campaign 2020 your unfiltered view of politics. >> the student experience is really valuable to me. >> student cam had a huge effect on our life and it's really
helped us grow and learn as people going into our college years. >> for past winners of c-span's student cam video documentary competition the experience sparked their interests in documentary production. >> yes, i currently attend drake university in des moines, iowa. i get to be right in the middle of the caucus season and meet so many candidates and because of c-span i've had the experience in the equipment and the knowledge to be able to actually film some of them. >> and this year we're asking middle school and high school students to create a short video documentary answering the question, what issue do you most want presidential candidates to address during the campaign. include c-span video and reflect differing points of view. we're awarding $100,000 in total cash prizes, including a $5,000 grand prize. >> be passionate to express your view no matter how large or
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