Transcripts For CSPAN Government Surveillance Programs 20140215

Please let us know and whatever per whatever appropriate form we have and whether or not wouldnni arab countries follow soon. Could you get that pretty quickly . , we will try to provide a written assessment of that. If in fact enrichment of uranium spread throughout the , would you agree that that would be a very bad scenario for the National Security of the United States and israel if nations throughout the mid east turned to enriching uranium . Yes, particularly if it were for other than peaceful purposes. You think iranians are trying to hold a bomb before we get involved . Made theave not determination to go to that step. Aey have approached this from threshold capability. For the iranians the decision is a political one. They certainly have the expertise if they so chose. Would it take them if they made that decision . Them a that depends on a lot of factors and closed sessions. Gentlemen, we appreciate your testimony, your service. I joined a number of colleagues who have asked you your appreciation appreciation for their service. We will be in touch for closed meeting. If you missed any of these hearing you can watch it in its entirety online at cspan. Org. Syria was mentioned and npr reports on the ongoing talks between the Syrian Government and opposition leaders, which has stalled. Saysrab league mediator the Syrian Government refuses to deal with any other points of contention until the issue of combating terrorism has been settled. Used to describe the rebellion. Fighting in syria has killed 130,000 people. The talks were aimed to avoid a solution that to work to a and try to bring an end to the fighting. According to npr the only thing to come out of this most recent meeting was an agenda for another round of talks. The date has not been set. Records,sue of phone the Associated Press reports that Edward Snowden got some of his classified information from tricking a coworker so he could get an encrypted password. That employee has not been named but has reportedly said he did password,st noted his which enabled access to a number of classified data banks. The employee is a civilian employee. He resigned after the agency learned about his involvement. Edward snowden denies stealing any passwords. Members of the nsa testified before a Senate Committee about the recent report on the nsas collection of phone records. The board consists of five members. They called for the nsa to stop its Data Collection program. Well begin this hearing of the Senate Judiciary committee on the report of the privacy and Civil Liberties Oversight Board on reforms to section 215 elephone Records Program and the foreign Intelligence Surveillance act. Appreciate you being here today, all five members of the board are here and most important, your extraordinarily impressive report, which is all the more so because of the less than ideal conditions which you did it with very few staff and high time pressure. I am struck by the thoughtful analysis, which is exceptional, exceptional in its quality but also exceptional in the fact this issue has received so little thoughtful analysis over the time this surveillance and intelligence Gathering Program has proceeded and, of course, for years the program has been hidden from the public and the legal justification of it was not available to anyone. In fact, the legal justification was not done, and that is more shocking even than the hiding and secrecy involved in the program. Since the program was made public, weve seen legal justifications from the executive branch and opinions from the judiciary, but none of the publicly available analysis has addressed all of the crucial questions that you discuss in your report. So i thank you for that contribution, among others. I am absolutely shocked and deeply disturbed that eight years after this Metadata Program, the Bulk Collection Program was authorized, the courts have still not carefully and thoroughly worked through the issues that surround the program. In our american legal system we expect there will be such analysis, such legal issues before the executive branch acts and here there currently was none. Even the two members of your board, who descended from the legal analysis, acknowledged that the board has raised significant legal issues, which could divide reasonable people, reasonable lawyers. The American People essentially deserve better, and thats one of the reasons that were here today. They deserve better than to have the executive Branch Engaging in conduct that even its defenders say might be illegal. The second major achievement of this report is that it sheds light on the history of the metadata hony program. We learned from your report that the judge asked the phone records on potentially every american without so much of writing a written opinion, which is incredible. Absolutely shocking. In 2006, judge howard issued an extensive order allowing the government to collect phone records of lawabiding americans with no known connection to any crime. Telephone records on every american who were not even suspected of committing any crime, and he chose not even to provide a sentence explaining his legal reasoning. Thats all the more disturbing when you consider the legal context. In 2006, the attorney general was required by law to pass along to congress any major ruling, any major ruling from the fisa court, the foreign Intelligence Surveillance act, only when they wrote an opinion. So when judge howard decided he wasnt going to write an opinion, this prevented congress from learning the legal basis for a massive change in the governments claim to Surveillance Authority important and in fact essential component. There may be some americans who agree that the fisa courts should have an adversaryial process, but they would allow it only if the fisa court judge sked for it. And yet it seemed that the court who signed off on the bulk data program didnt think that the issue warranted an opinion. So im not blaming judge howard for that omission. Judges really arent expected to decide whats important. In fact, often cant do so without a lawyer raising an issue and highlighting it and arguing it and saying its crucial. L the more reason that the sdversarial process needs to have a constitutional opinion and the legal basis for this order was only not conveyed but the lack of an opinion prevented congress from learning about it. There are also reasons in your report to question the effectiveness of the bulk Metadata Program, and in fact weve learned more recently that perhaps only 30 actually of the phone calls were actually were collected. Only a proportion of the supposedly comprehensive collection of phone calls was actually absorbed or collected by the government, which undercuts and contradicts representations made to the courts in justification of the program itself. Representations made by the president. Are undercut by that potential fact. So it appears that the effectiveness of the program may be in question, also, which is an issue raised in your report and again highly significant. These kinds of issues deserve o be aired and analyzed more effectively and comprehensively than they have been, and one of the reasons we are having this hearing is to give you an opportunity to continue your conversation with the American Public about these Critical Issues. I want to, again, thank you, not only on my behalf, but also for chairman leahy, who has provided a written statement. Im not going to read it, but if theres no objection ill ask that it be made part of this record, and now turn to the ranking member, senator grassley. I have a statement im going to read. Before do i that i want to say i have the same concerns that senator blumenthal just expressed, but also want to make it very clear that and if i didnt have those same concerns i wouldnt be upholding my oath to the constitution and the Fourth Amendment but also i think i would take into consideration a balance between our number one responsibility, the federal government, which is National Security, and the requirements of our Civil Liberties. First of all, thank you for joining us and thank you, mr. Chairman, for holding this hearing, and i welcome the Board Members that are with us. The entire board. Its good that the committee has held many hearings on these surveillance authorities. The committee will undoubtedly hold more. The most important responsibility of the federal government is to protect National Security while at the same time preserving our Civil Liberties. The n. S. A. Continues to be of great concern to my constituents in iowa and obviously across the country. Over the last few months ive grown more concerned about why the department of justice hasnt prosecuted any of the few n. S. A. Employees who willfully abuse their Surveillance Authority. Which do have examples of where its been abused and refer to the Justice Department. I havent had an answer yet. Did i write a letter to the attorney general about this back in october. Still, no response. Few weeks ago at a hearing i pressed the attorney general for an answer. He didnt have one. He committed to get me a response, but im still waiting. Its good that these abuses have occurred only on a few occasions but the American People need to know if the department has taken these referrals seriously. A month ago the president finally weighed in on these important surveillance reform matters. It was past time for our commander in chief to become engaged on this issue. After all, surveillance authorities are critical to our National Security. Some of the reforms in his speech concern me, like the idea that we would recognize privacy rights of potential foreign terrorists. I dont quite understand that. On the other hand, other reforms the president announced seem very promising. For example, to the extent it doesnt compromise National Security, increased transparency can help to restore the publics confidence in our Intelligence Community. Indeed, not long after his speech, the administration announced new rules that will permit companies to be far more transparent with their customers about fisa court orders and directives. The president also announced reforms to the governments handling and the use of telephone metadata that it collects under 215. The government is now required to obtain a separate court order every time it seeks to assess or research metadata except in emergency situations. This is a significant additional safeguard against potential abuses of metadata. Additionally, the president changed to the program that the metadata be held by the Telephone Companies. He apparently believes this can be done without compromising the programs operational value. There are many questions about whether such an arrangement is desirable or even possible, but the administration is currently exploring options implementing this change, and its my understanding theyre supposed to have a report ready by march 28. It was against this landscape that this board before us issued its report a few weeks ago. The report contains a number of recommendations that im interested in hearing more about. For example, many of the recommendations in the report concerns increased transparency. A very worthy goal. All but one was adopted unanimously by the board reporting today to us. Over moreover, they are similar to the reforms that the president proposed. Additionally, the report recommends that the fisa court be able to call upon a pool of advocates from outside the government. These advocates would provide an independent perspective but only in cases that the judge decides presents novel or significant issues. This recommendation was also adopted unanimously. Its also similar to the president s proposal as well as the approach in the committee that passed out of our Senate Intelligence committee. The boards remaining conclusions, however, was that section 215 Metadata Program is illegal and should be terminated. Of course, this recommendation received the most media attention. It was adopted only by a bear majority of the board before us on a 32 party line vote. The boards conclusions on this point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfully of section 215 program. For instance, the boards conclusion is contrary to the opinion of the president of the United States who, as you know, proudly says and legitimately so that hes a formal constitutional law professor as well as even the department of justice taking that same position. Its contrary to the position of prior administrations that initiated the program. Its contrary to the administration of position of 15 fisa court judges. Its contrary to the opinion of two of three District Court judges who do not serve on the fisa court but have nonetheless considered the issue. And of course, it is contrary to the opinion of two of the boards plebs. Nevertheless, as we members. Nevertheless, as we consider these reforms, i welcome of hearing a wide range of views, and i thank the board for tony blair contribution to Public Service on this very board for their contribution to Public Service on this very important issue. Dont know if senator franken would like to say any remarks. Ill wait until the questioning. Very good. Thanks. Id like to ask the panel to please rise and be sworn as is the custom of our committee. Do you affirm that the testimony that youre about to give is the truth, the whole truth and nothing but the truth, so help you god . Thank you. I understand you have a brief Opening Statement but before you do, let me introduce the panel, if i may. David medine, chairman of the pclb, has been the boards chairman since may of 2013. Before becoming the chair, he worked as an attorney fellow at the securities and Exchange Commission and special counsel at the Consumer Financial protection bureau. He was previously a partner focusing on privacy and Data Security at wilmer hale, Senior Advisor to the White House Economic Council and associate director for financial practices, focusing on privacy issues at the federal trade commission. And also was professor at Indiana University and George Washington University Law school. He has a b. A. From Hampshire College and j. A. From the university of chicago. Rachel brand is chief counsel for regulatory litigation for the United States chamber of commerce. Ms. Brand has held a number of positions at the department of justice during the president george w. Bush administration, including assistant attorney general and Principal Assistant Deputy Attorney general for regulatory policy officer. She worked in the White House Counsels Office and clerk for Justice Anthony kennedy and Justice Charles freese of the Supreme Court. Supreme Judicial Court of massachusetts. Shes also practiced law at wilmer hale. She has a b. A. From the university of minnesota and a j. D. From the harvard law school. Elisabeth collins cook is counsel in the regulatory controversy and regulatory and Government Affairs department in the washington, d. C. , office of wilmer hale. Ms. Cook previously served as the republican chief counsel on the Supreme Court, nominations for the Senate Judiciary committee and assistant attorney general for legal policy at the department of justice at the end of the bush administration. She served as a number of the board of governance at the Terrorism Screening Center and law clerk to Justice Laurence silverman of the United States court of appeals for the d. C. Circuit and judge Lee Rosenthal for the Southern District of texas. She holds a b. A. From the university of chicago and a j. D. From harvard law school. James dempsey is Vice President of Public Policy at the center for democracy and technology, a nonprofit focused on privacy, surveillance and other internet issues. Mr. Dempsey previously served as Deputy Director of the Nonprofit Center for National Security studies and special counsel to the National Security archive. Prior to that, he was assistant counsel to the house Judiciary Committee subcommittee on civil and Constitutional Rights and an associate at arnold and porter. He, too, was a law clerk. In his instance for judge robert broucher of the massachusetts supreme Judicial Court. He served on as a member of several bodies addressing these issues, including the Industry Advisory Board for the National Counterterrorism center and the transportation, Security Administration scurep flight working group, among others. He has a b. A. From Yale University and a j. D. From harvard law school. And finally but certainly not least, im particularly proud and pleased to welcome a native of connecticut, judge wald, who has served with extraordinary distinction for 20 years on the United States court of appeals for the district of columbia, including five years as chief judge. She has also continued her Public Service as a judge on the International Criminal tribunal for the former yugoslavia and a member of the president s commission on intelligence capabilities of the United States regarding weapons of mass destruction. She served in president carters administration as the assistant attorney general for legislative affairs in the department of justice. She also previously worked as an attorney at the Mental Health law project, the center for law and social policy, the Neighborhood Legal services program, the office of criminal justice at the department of justice and codirector of the ford foundation, Drug Abuse Research project. Judge wald clerked for judge jerome frank of the United States court of appeals for the second circuit. She received her b. A. From Connecticut College for women and her j. D. From yale law school. I might just say shes been inducted in the connecticut womens hall of fame. We welcome all of you. We thank you for being here. I understand you have a brief introductory statement that will be submitted by the chairman and please proceed. Thank you. On behalf of my fellow privacy and Civil Liberties oversight committee, thank you, grassley. N, senator this is an independent executive Branch Agency tasked with ensuring that our nations counterterrorism efforts are balanced with the need to protect the privacy and Civil Liberties. Before beginning my testimony, i want to state our respect and admiration for the men and women in the Intelligence Community who work tirelessly to protect this country while maintaining our values. We have the highest regard for them. Last june at the request of members of congress and the president , our board initiated a study of the bulk telephone Records Program conducted by the National Security agency under section 215 of the u. S. A. Patriot act. The study included classified briefings with officials from the n. S. A. , the department of justice, the f. B. I. And the c. I. A. Board members also met with white house staff, former presiding judge for the fisa court, academics, private and Civil Liberties advocates, technology and Communications Companies and trade associations. In addition, we received a demonstration of the operation and capabilities at the n. S. A. The board has been provided access to classified opinions by the fisa court and classified documents relating to the operation and effectiveness of the program. At every step of the way, the board has received the full cooperation of the intelligence agencies. Consistent with our statutory mandate to operate publicly, were possible, the board held two Public Forums and solicited public comments. In our january 23 report, the board concluded that the section 215 bulk Telephone Program lacked viable need, implicates constitutional concerns under the first and Fourth Amendments, raises serious threats to privacy and Civil Liberties as a policy matter and is shown limited value. As a result, the Board Recommends that the government end the program. The majority concluded that particular live telephone record searches can be used with existing authority. Two took that its a reasonable reading, made in good faith by numerous officials in two administrations of different parties and constitutes a good faith effort to subject a potentially Controversial Program to both judicial and legislative oversight. The board unanimously recommends that the government immediately implement several additional privacy safeguards to mitigate the privacy impact of the present section 215 program. Specifically, the government should reduce the retention period for the bulk program from five years to three years, reduce the number of hops used in contact change from three to two, submit the n. S. A. s reasonable sprigs determinations to the fisa court for review after theyve been approved by the n. S. A. And use to query the database and have a r. A. Z. Determination to otherwise analyze the corporate e which results querys queries. The fisa court modified its primary order to require primary judicial approval before the database is queried. And consistent with the boards recommendations, the court reduced the permissible queries from three to two hops. The boards report also addressed the operation of the fisa court. The courts procedures have raised concerns it does not take adequate account of positions other than those of the government. The board believes that some reforms are appropriate that would help bolster Public Confidence and the operation of the court, including creation of a panel of private attorneys or special advocates who can be brought into cases involving novel and significant issues by fisa court judges. Development of a process facilitating aplate review of fisa Court Decisions and increased Technical Assistance and legal input from outside parties. We believe that our proposal successfully ensures the ability of the court to hear opposing views while not disrupting the courts operations or about the role of advocate. The board believes to the maximum extent possible consistent with National Security, declassification of the fisa court with minimal reductions should be made publicly available. Finally, the board believes that the scope of surveillance authorities affecting americans should be public while sensitive operational details regarding the conduct of government surveillance programs remain classified. Two Board Members declined to join this recommendation. All of the boards recommendations regarding the operations of fisa court and six of the seven regarding transparency are unanimous. The board thanks you for the opportunity to testify before the Senate Judiciary committee today regarding our report. Wed be happy to answer any questions any Committee Members may have. Thank you. Im happy to give other members of the panel an opportunity to speak separately by way of introduction, but if not, why dont i just begin with some questions. Let me ask you as the chairman,. Medine, would the apparent revelation that perhaps only a proportion of this telephone data was aptly collected, changed for your report . I dont think we can address in Public Session the pros and cons of that session but would be happy to meet in private session. Even if the reports were true, it still means that hundreds of millions of telephone records are being collected, and so at least its my view it would not change the recommendations of the board. Would it undercut the accuracy of representations made by the United States government to the courts to justify this program . Again, i dont want to comment on that. Some of these matters remain classified. I think theres more to be said on that. I dont think it can be said in Public Session. Let me put it different. Wouldnt you agree with me that the United States government has misled the courts, whether purposely or inadvertently in justifying this program on the basis that all telephone records are collected . Again, im not prepared to confirm any of the reports that have been made. So i dont want to draw any conclusions about representations that were made in any court proceedings. Let me then just move on to a separate line of questioning. Is it fair to say from your report that the present bulk metaData Collection program is unjustifiable under existing law . Thats the conclusion of the majority of the board, yes. It is illegal . Yes. Its not consistent with section 215 authority. So in order to continue it, if the congress chooses to do so, we would have to change the statute . Thats the majoritys view. Although, again, the majority would also counsel that even if you change the statute and resolve the statutory issues, we still believe there are serious constitutional issues and very serious policy issues relating balancing National Security with privacy and Civil Liberties. Given there are alternative legal authorities to be used, the majority view is to abandon 215 and use legal authorities. So in addition scrap 215 and rely on alternative authority . Exactly, yes. Has the panel reached any conclusion in terms of timing as to whether our consideration and perhaps revision of 215 or other authorities should await resolution by the United States Supreme Court of some of these issues that may come before it in cases that are now in the lower courts . The panel hasnt addressed that question specifically. Given both the legal and policy concerns, i think the interest would be to move forward and try to resolve those issues sooner rather than later. Because we have no assurance knowing the United States Supreme Court, whether it will in fact address those issues considered relevant for the congress to act, thats up to the court to do . Yes. We only have the District Court decisions now and have to work its way through the system. At least the majority believe that action should be taken on the program sooner rather than later. Theres no telling whether or not the United States Supreme Court will resolve those Critical Issues and when it will do so . Or how it will do so as well in terms of providing guidance. Let me ask you and judge wald. N the issue of the adversarial process, i understand that the conclusion of the panel was advocate ive called it a constitutional advocate should be enlisted only when the court thought there was a novel or important issue. My view is that the constitutional advocate should make that decision and be involved whenever she thought an important novel or issue was raised by a warrant. Not necessarily or usually before the warrant was issued so as to not delay the process ut at least afterwards and now it gets to what happens in the ordinary criminal process where there is the opportunity to challenge the legality of a search or surveillance after the fact and the evidence can be excluded. Isnt it often the case, let me ask you, judge wald, that judge sees important or novel issues without counsel saying in effect this issue is critical, its decisive, its unresolved by other courts or resolved badly, dont judges benefit by hearing that argument to be made by counsel . Yes, senator, they certainly do. Because i was forewarned that this might be a question, i did a very brief look at some of my own experience 20 years on the d. C. Circuit, and i looked at only one years opinions which i was involved in. There were 33 opinions. Particularly in the 1980s, and seven times out of the 33 opinions which i wrote that year, and i was only one of 10 judges. I dont know what the record would be of the other nine judges, but seven of those were sent back to the District Court because the District Court had not discussed what we considered to be an important legal matter. And i would say that that number might even be low because, as you well know, there is a doctrine in the regular courts that if you didnt raise it down below you cant raise it on appeal. So the questions involved tended to be ones that were of jurisdictional basis. But, yes, it was not totally infrequent occasion. Also pointing out the obvious thing that all of our cases did have counsel on both sides, and even with that kind of protection, i would say especially in the technological technologically regulatory complex cases which had a lot of different issues involving technology, i dont want to take up the committees time, but i just couldnt help copying one sentence from one of these monstrous e. P. A. Cases in which the court of appeals said this is the first challenge to the new Source Performance Standards since the passage of the 1977 amendments. Therefore, the court was rprised that Neither Party raised during the discussion below the appropriate standard of law in that discussion. They did not even mention the fact of a new major legislative effort. So even with the best kind of counsel it can happen. Issues spotting is a challenging business. Yes. Even with counsel and without it reliance on a judge is often hazardous. Ive never been a judge but ive litigated for a number of years and ive always been astonished at how cases that ive tried may raise issues on appeal that i thought were nsignificant and sometimes decided by a ruling without an opinion but i think that the reason i propose a constitutional advocate be involved in every decision that she or he thought was significant was to give the court the benefit of that kind of additional insight and guidance and perspective. Im going to turn to my colleague, senator grassley, and then to senator franken for his questions. Thank you. Im going to ask ms. Brand a question. But, ms. Cook, if you want to followup with anything youre welcome to do that. Ms. Brand, you and ms. Cook disagreed with the boards analysis and conclusion in a few key areas including the conclusion that the bulk Metadata Program isnt authorized under section 215. Question, can you explain why you disagree with the boards analysis and conclusion on this point and why you believe that the program is lawful . Sure. Thank you, senator grassley. You know, i think the statutory question is difficult. Its not a simple question. Certainly one which reasonable people can differ but at the end of the day i would agree with every single federal judge who has considered the statutory question, all of whom have upheld the program under the statute. Theres a lot to say about the boards 40 to 50page legal analysis on the subject, but just one thing that concerns me about their analysis. It seems to disregard the difference between National Security investigations and criminal investigations. And one example of that is in the boards analysis of whether the relevance standard in the statute is met. Part of that discussion, the board says grand jury subpoena, as you know, also has a relevant standard, has never been used to collect the volume of data thats collected under the 215 program. And thats just not the right question to ask because relevance is contextual. You have to ask, relevant to what . And information has to be relevant to a criminal investigation which is retrospectively and comparatively narrow. In the fisa context under section 215 information has to be relevant ongoing to a fisa investigation. Thats a longterm, proactive Preventive Intelligence investigation into an entire terrorist organization. And so it shouldnt be surprising that a broader volume of data would be velarde vant to that that would be relevant to your typical criminal investigation. You and ms. Cook also disagreed with the boards conclusion that the program should be shut down as a policy matter. The board found that the programs risks outweighed its benefits, but in your written statement you appeared to challenge both sides of that equation. You wrote that the programs actual inclusion on prifere is i is small and that it benefits its benefits can be be measured solely on the terrorist plots it disrupted. Question, can you explain in more detail why you disagree with the boards policy decision and conclusion that the program should be terminated and why you believe that its worth preserving . Sure. I mean, the question boils down to whether the privacy comblicompations of the program outweighs the National Security benefits and i board understates the benefits. On the privacy side, its useful to stop for a minute and think about what the program is its not collection of content of any communication. The government cant listen to you on phone calls with this program. Its literally a system series of phone numbers and the times they called other phone numbers with no names or any other personally identifiable information attached to them. Its just a bunch of numbers. The uses of it is limited. The government cant look at the information on the database unless they have a particular phone number that they have evidence thats connected to terrorism and they can look in the data to see which phone numbers talk to that phone numbers. Again, no names. That exercising connecting phone numbers to phone numbers is what this program is about. In addition, you have the numerous levels of oversight of the program, the use of the program is incredibly strictly limited. If you take all of that plus the additional restrictions that we recommend be impose, i any the intrusion on privacy is very low. On and looking at whether this program is you have to look longer term into whether the next time theres a largescale terrorist threat against the United States, could this program prevent it and i think the answer is clearly yes. Theres a potential for that. You also have to remember that preventing a terrorist attack is not the only measure of value, because its also valuable when the government can determine there is no terrorist attack. If you have, for example, a situation where there was evidence of a terrorist plot abroad and the government is trying to figure out if there is a domestic threat. If the government can determine there is no domestic threat, then they might not have to take an action like grounding all the airplanes in the United States. And thats also valuable, i think. Ok. Ms. Cook, the board concluded unanimously that the balk Metadata Program is constitutional but neither you nor ms. Brand joined the extended analysis contained in the report. Did you find this a difficult or close constitutional question, number one, and number two, could you explain why you didnt join the analysis of the three other members of the board . Thank you for the opportunity to answer that question. As to the Fourth Amendment, the board was unanimous that the program does not violate the Fourth Amendment. Smith vs. Maryland is the law of the land and the board was unanimous that the government is entitled to rely on that precedent. I declined to join the Fourth Amendment section as it was primarily an extended discussion of potential evolution in Fourth Amendment injuries prudence. I did jurisprudence. I did not find the prognostications particularly as depended very heavily on a sole concurrence in the jones decision. Dont think thats an indicator necessarily of where the Supreme Court is going. As to the First Amendment, i could not join that analysis as the First Amendment analysis was of programs that simply do not exist. As ms. Brand has explained, the program here is simply about numbers calling numbers. Its not associated with individuals information. The majority, nonetheless, talks about the n. S. A. Painting complete pictures of every americans associational activities. That is not the program we were analyzing, i could not join the First Amendment analysis. Mr. Medine, ill ask you my last question. The boards report recommends the creation and an advocate to participate in the fisa court process. The report recommends, one, that the advocate should come from a pool of attorneys outside the government, two, that the fisa court should retain control over whether to call upon the advocate in a matter and, three, the advocate should not participate in or review all applications filed by the government. Two questions together. Could you walk through why the board felt strongly about each of these issues . And second, did the board meet with any judicial representatives or did their views play a role in shaping the boards recommendations . Thank you, senator grassley, for the opportunity to respond. Just answering your last point first, the board held two public workshops, as i mentioned earlier, and we took testimony from two fisa judges, judge robertson and judge karr and also judge beats. Views of d form our the questions you raised. First, having advocacy outside the government. We thought they need to be independent and bring fresh views and seating them in the executive branch where the government is questioning the fisa court. We thought it made sense for them not to be made part of the executive branch. Nd having them part to be to be part of the judicial branch. We thought a fresh perspective. Have a panel of outside private lawyers chosen by the chief judge of the court with appropriate clearance or able to get clearance and work space to address these important questions in appropriate cases which i guess turns to the second question which is regard giving the judge control over cases. Certainly in everyday routine cases there was not a need for special advocate. The judges have testified to us that they are very capable in handling much the way they andle search warrants, ex parte, involving novel and technical issues where the judges role takes place. So we wanted to give the judges authority to invite the special advocates in where the judge deemed appropriate. We do want a reporting mechanism to make sure that the judges exercise that authority appropriately and so since the government is supposed to designate those significant cases in advance, we would like the court to report on how many cases were designated in that fashion and those and in such cases how much was a special advocate appointed. Likewise, there are cases on their face appear to be technical or novel issues but the judge knows they raise important questions and we want the judge to be free, even in those cases, to expand the pool and also discretion as to when its appropriate to bring someone in. And again i think that answers your last question. Not all applications because probablely a significant majority of the probably a significant majority of the role is routine. Significant programatic approvals where the judge is almost acting like an administrative agency, the judges themselves said they would value an outside opinion being brought in. Thank you, mr. Chairman. Thank you, panel. Thank you, senator grassley. Senator franken. Thank you, mr. Chairman. And id like to thank the versight board for its work. All my questions are basically on transparency. On page 190 of your report you say that, transparency is one of the foundations of ance. Tic govern and i couldnt agree more. The American People hasnt given the American People even a rough estimate of how many people have had their information collected under section 215 or how many numbers have been collected. Under current law the government doesnt have to. I have a bipartisan bill that would fix this. The surveillance transparency act. It would mean that we the government would have to say how many numbers, how many peoples numbers have been collected and how much of how many have been queried, how many people have been queried. Recommendation 9 of your report echos my bill. It says the government should give the American People more detailed report about section 215. What specific information should be included in these public reports, do you think . Do you think this reporting should be required by law . Anyone can take this. Mr. Dempsey, mr. Medine. Senator, i think the recent the recent, you know, agreement by the Justice Department to allow companies to disclose more information didnt actually address sort of alk collection question. Assuming i understand your question correctly, the sort of bulk collection question. Assuming i understand your question correctly, a million of the customers are affected, then that basically says s a balk collection bulk collection against this entity and i believe that is Sensitive Information. I think a better way to address the wait a minute. When you say the entity, you mean the company . Yeah. Ok. But thats Sensitive Information in the sense, first of all, the companies would like to be able to say that. They would like to be more transparent. Theyve endorsed my bill. They support my bill. Honestly, i think there may be a split between what the Telephone Companies want to do and what the internet companies. Uld want to do im not sure about that. I do see i see a legitimate naming concern about or identifying or singling out but you dont have to single out. The government can say all it can say it just say how many numbers are caught up in the bulk collection. It isnt signaling out a phone company. Isnt sing naling out singling out i think the best question on the bulk thing is to have a statute that either authorizes bulk collection or doesnt authorize bulk collection. The fundamental conclusion of the majority was the statute, as you read it, doesnt read like a bulk collection statute. And if were going to authorize bulk collection, then we should have a statute, in my view, designed for that purpose and explicitly setting out the parameters of what a Bulk Collection Program would look like. To me that kind of legislative transparency is honestly more important than sort of operational transparency side. And here were only i think were only talking about the bulk collection which, again to my mind presents sort of a unique question about what the government says about when its doing it. Ok. Let me talk to mr. Medine. Thank you. Im asking what the government reporting should be. Assuming that we keep the bulk collection, im not necessarily assuming, but if we do, to me it makes sense that the government says, how many numbers have been collected and how many have been queried, what is your opinion on that, your thoughts . It has transparency of the government under programs authorized by congress. When you get down to the details of how many peoples information is gathered, thats not always an easy thing to determine. I could have multiple phone numbers. So calculating how many well, you could say how many numbers have been caught up, right . Yeah. Thats easy to do. I think the tradeoff in this program by program some cases there are National Security concerns. If we reveal were collecting a certain amount of information under a particular program we may have tipped off to potential terrorists how to not communicate under that program anymore because now the government is collecting. I think there is a balance to be struck. The government is just negotiated an agreement. Cant you put a rough estimate on how am i mean, f you say, you know, this many numbers were collecting data on in our bulk collection and americans my feeling is this. Americans basically distrust executive power and if they are not given information to make a decision about themselves about the legitimatey of things, then i assume that the power is being abused. And to me, if it would make i dont think youd be giving anything away if you said this many millions of numbers are having their or tens of millions or are having their numbers, Data Collected about them and this many thousands are being queried, do you really think that i think under some circumstances it could be and i think the recent give me a circumstance. Well, if you have a collection of some program of on the internet and we review im talking about the phone records . Yeah. Im talking about the bulk data. If we reveal how many phone records were collecting it would indicate moum were not collecting, for instance, and that may tip peoples off from, say, methods of communication. You say were collecting information on 80 million numbers, does that tell you anything about what were not collecting . It might. Really . Depends on the number of Companies Offering those services and that number of customers they have. But we think theres transparency was clearly important. It was major part of our report. Fisa Court Decisions should be made public. The government should reveal its surveillance efforts, and the laws that Congress Pass should clearly reveal the authorities under which those programs operate. Which think there is some potentialal National Security concerns. And say, for instance, not allow reporting for two years after a new program is instituted might provide some guidance on how to balance those important both important concerns of transparency and National Security. Ok. Hopefully we have a second round. Thank you. Sorry. Im over my time. Thank you, senator franken. We will have a second round assuming we can do it before the votes occur at 11 30. Senator hatch. Thank you, mr. Chairman. Welcome to all of you. Good to see you all again. Any of you could answer this question. I want to thank you for your board for contributing to this report. Id like to start with an issue that received less attention than the n. S. A. Surveillance program and that is the foreign Intelligence Surveillance act foreign Intelligence Surveillance court or the fisc. And they take full advantage from outside parties such as properly cleared outside lawyers. The court can do that now, in my opinion, without any new legislative authority. Does the court take advantage of that assistance . Any of you . I think the courts certainly have access to the Governments Technology experts in gathering information. Beyond that, i cant really say what the courts done. Anybody else . Yes, judge wald. The former and current judges of the fisa court that we had one o, judge tell us that he didnt think it was clear to all the judges how or to what extent they could take advantage of outside help. I believe few instances, there was one in the review court of the fisc court and theres been a more recent situation in which they have allowed outside group that has petitioned to file a written presentation, but it was not clear. And we know of i know of no examples where they did take advantage of outside technical well, the board unanimously recommended some reforms to make the work of the fisa court more transparent. I am skeptical, however, about the recommendation that the scope of Surveillance Authority should be made public. The board was divided on that issue, as i recall, and im concerned that publicly outlining surveillance collection methods may compromise the investigative techniques employed by intelligence and Law Enforcement communities and pose a risk to National Security. Yesterday, the director of National Intelligence issued, pursuant to president ial policy directive 28, the list of permissible uses of intelligence collected in bulk. Now, it seems to me making public the purposes for which the government uses intelligence rather than the methods it uses to collect Data Intelligence strikes a better balance. Id like your comment. Perhaps from someone on both sides of the issue, if you could. I can start by explaining why i did not sign onto the 12th recommendation, which i think is what youre referring to. I agree with the majority in principle, but where programs can be or the outline of programs or the purposes of the programs can be revealed, they should be. But theres an important caveat to that which is consistent with the National Security and i dont think that a programs legality depends on whether its been disclosed to the public. I was concerned that that is what the boards recommendation implied. I think in our democracy where we rely on committees like this and on the intelligence committees to do oversight, theres necessarily going to be some things that occur in private and thats permissible. Ok. I also would say i think its difficult to draw conclusions about what can safely be disclosed publicly from the section 215 disclosures given that they followed the wholesale leak of the program. So i think we need to address this prospectively and taking into serious account what the potential damage could be from disclosure of previously classified programs. Ok. Im happy to welcome you all here again. Judge wald, you and i have i think we go back 30 years. I think we do. Just happy to have all of you here. I was just going to go ahead. On the transparency, we our recommendation the majoritys recommendation i think was fully cognizant of the fact that we in no way wanted the methods, operational or even the existence of a particular operation to be automatically disclosed. We did have testimony actually om a former ranking minority ranking majority, minority, member of the House Intelligence Committee that the socalled framework and purpose of many of the programs could be disclosed by carefully drawing these lines. Let me give an example. We are just about to begin or have begun our report on section deals the fisa act which th the collection of communications one side of which may be in the u. S. And one side f which is and that amendment which allows this program back in 2008, i believe it was, was openly debated before this body and before other bodies. We have just begun the investigation. Im not about to try to preview any of our conclusions, but i will say this that the fact that how the program would operate in terms of the courts approving a target or minimumization and what kinds of categories of material could be put in the targeting, many of these things are right in the statute or in the legislative history in the reports that accompany it. My belief is that, again we have only begun our investigation, but that the government itself has said that the 702 program has been very, very valuable to it, and has said certain ripives of the government much more valuable, actually representatives of the government much more valuable, actually let me just mention this. It has been suggested that you believe the metta data program Metadata Program might be illegal. Now, is that a fair characterization of your position . Each of you can speak. No. No. Why not . I was explaining earlier to senator grassley some of my reasons for it thinking that the statutes language can support the program. I think what people are reading too much into my statement that reasonable lawyers can differ on this. Its not the clearcut of questions, but at the end of the day i think the program is legal. Thats my opinion. Similarly i believe that the program is authorized. A concern was noted with the majoritys approach to relevance, i think there are a number of concerns that i have with the majoritys legal analysis. For example the board has concluded that section 215 prohibits providers from producing documents to the n. S. A. Instead of the f. B. I. Sounds like a technical issue, but the board has concluded on that basis that the section 215 program is unlawful. If you read section 215 where it talks about production of tangible things, there is no requirement whatsoever that it be made to the f. B. I. The majority has, instead, cobbled together this prohibition and rested its legal analysis on this prohibition that does not appear on the face of the statute. If i could just ask one other question because im going to have to leave. Let me just shift to the n. S. A. Television telephone Metadata Program, which received most of the attention in these hearings and in the media. Ms. Brand, its my understanding that the board is unanimous that the Metadata Program is constitutional, but divided on whether it is authorized by statute. Is that a fair characterization . Thats correct. In addition to the board of substantive conclusion about whether the patriot act authorizes the Metadata Program, i wonder whether the board should have delved into that issue at all. Ms. Brand, please summarize why you think the board should not have ventured into that area. Thank you, senator hatch. I would be happy to. A board like ours which performs primarily an advisory function and is not a court, does not have to address every legal argument thats available, has to pick and choose and consider the ramifications of what it decides to address. I think frankly on the legal question here, the statutory question, its not clear to me what its not as we are addressing this as a matter of first impression. This program has been operating for years. Its been the subject of numerous judicial opinions. The legality of it will ultimately be resolved in cases currently pending in the courts. But more importantly i think where the board concluded also that theres a policy reason for shutting down the program, it just struck me as gratuitous and unnecessary to also say the program is illegal, because that has a very demoralizing and negative effect on the Intelligence Community. You want your intelligence agencies to aggressively protect the National Security within the bounds of the law. You dont want them to be timid and be scared of the rug being pulled out from under them by being secondguessed years later when they did everything right by going to the court and operating under what they believe to be a Legal Program and so forth. I just thought it was a mistake to address the legality. Senator, may i speak to that point just briefly. With the chairmans permission, yes. Senator, when i first heard about this program and the fact that it was authorized by the court, i sort of felt, ok. It must be lawful, well look at it. Maybe well find some additional tweaks that we can make to it and that will be it if its been authorized by the court. Thats the end of the story. And the more we looked at it, the more i came to the conclusion that a majority of the board came to the conclusion that the program just does not fit within the statute. That it was shoehorned into this statute. And i think nobody, with all respect to both the executive Branch Officials and the judicial officials, nobody looked at the statute as carefully as we did. And i think at the end of the day if we had come forward and opined on some balancing task or some other aspect and hadnt looked at the statute carefully, people would have criticized us, you didnt read the statute. So we i came to this conclusion slowly. I came to it a little bit to my own surprise, but as you read the statute the words just dont add up for this program. On the constitutional point i want to be clear, the boards majority report says, under application of existing case law. Smith vs. Maryland and the other third party record cases, if those were to be applied to this program, then you would conclude zero constitutional privacy interest in the data, therefore not unconstitutional. The problem is there is no case ever addressing the program a program of this scope until the two most recent District Court cases. There is no Supreme Court case vs. Ever applied the smith maryland doctrine, transactional records doctrine to such an Extensive Program. Nobody knows. The bottom line is nobody knows what the Supreme Court would say when confronted with such an Extensive Program and an Ongoing Program of this kind. Thats the bottom line actually, i believe. Thank you. Just ask ms. Cook, welcome back to the committee. We have missed you. Do you agree with ms. Brand that the board should have stayed away from the issue of legality . And stuck to the policy questions regarding the n. S. A. Metadata program . I think the decision to spend such an amount of time and as you know more than a dozen federal judges, most on the foreign Intelligence Surveillance court and u. S. District court concluded that the patriot act does provide authority for the Metadata Program. The president s review group who appeared before this committee came to that conclusion, and the attorney general who also was here just last month strongly holds that position. The board was split 32 on this. I just wanted to know why was the majority wrong on this issue . Well, i in your view . I think theres two questions there. First, whether we should have engaged in such an extensive legal analysis. As you have noted this program is subject to extensive judicial oversight and its currently subject to ongoing litigation in three District Courts. We are a board of extraordinarily limited resources, particularly at the time we were considering this. The decision to do this both statutory analysis and also a Fourth Amendment analysis that really was prospective only had costs, we have not meaningfully begun our review of the section 702 program, nor have we begun to address any of the other priorities we had identified since the inception of our board. As to the question of whether the legal analysis was in craft, we discussed the relevance issue, we discussed the majoritys view that the records could not be produced directly to the n. S. A. , both of which i disagree with the majoritys analysis and i would also disagree with the majoritys analysis on the expa issue. As you are aware from 2001, one of the primary purposes of the amendments in 2001, section 215, was to eliminate any notion that section 215 could be used for some types of records but not for other types of records. The majority and the legislative language uses the term, any tangible things. The majority nonetheless imports from a completely different title of the code a modifier of the term any. I could not join that type of analysis. A ould also say thats pleasure to be back to the committee today. Senator hatch, could i indulge upon a 30year relationship to address very briefly a few of the points here. I have watched youall that time, by the way. Its been a mutual watch. I would simply like to point out that our governing statute gives us tells us to, it says, the board shall continually review actions by the executive branch related to efforts to protect the nation from terrorism to determine whether such actions are consistent with governing laws. I think part of our mandate has been to look at the consistency of the statute with the laws. I would also point out that we had requests from a number of senators and a number of members of the house to look at 215 and 702 and in each of the letters it was mentioned that we should look at the statutory basis. The other point which i think is certainly worth thinking about are chel brands concern very limitly motivated concern that if you say that the n. S. A. People who we were all impressed with their good faith and their diligence, if we say that they were operating under a statute which didnt give them the authority to do what they are, this could be somewhat morale destructive. I only wish to point out again drawing upon my 20 years is that which i would say the average percentage of times in which an Appellate Court or somebody said that the lower court or the agency, primarily the agencies in our cases, that the agencies had operated outside the mandate of the statute were numerous. And i think it was never suggested that we were saying these were bad people or that they had done something that was wrong. It was legal interpretations are difficult and complex legislation, and the fact that another body may disagree with the agencys take is something which i think these dedicated Public Servants are used to and i would be very surprised if it really decreased their sense of loyalty and dedication. Senator whitehouse. Thank you, chairman. Let me just ask a timing question to first. When did the exercise that led to the report that we have in front of us begin . It began in june of last year. After the disclosures . Yes, after the disclosures. A number of members of congress and the president asked us to conduct the study of the 215 program, and we embarked on it almost immediately. You were aware of the 215 program at the time . Prior to the unauthorized disclosures . I only joined the board in late may was the board aware of the 215 program beforehand . As i recall, senator whitehouse, we learned of the Program Shortly before that. I cant give you an exact date, month or d put it several weeks before. Put it at a month or several weeks before. Why was it that you were not aware of this until just shortly before that . Our agency consists, before mr. Madine was concerned, our agency consisted of four parttime members who could work about one day a week with no staff. We were struggleling merely to struggling merely to get it up. We were nowhere near the volume of intake well be at in the future. That was part of it. So as far as youre concerned, nothing was withheld from you. It was you didnt have the a perfect ture to grind through aperture to grind through all the different programs. Literally, senator, we had a beforeg scheduled on 215 the snoweden snowden leaks, and literally the person was hit by a bus the weekend before he was due to brief us and we had to cancel the briefing. He was in a car accident. We have seen no indication there was an effort to withhold information about this program either prior to the disclosures or subsequent to the disclosure. I think we learned the gap is actually on your end in terms of having the capacity to look into the breadth of various programs. I would just add that i think during this fairly tumultuous year in which the four of us with no staff went racing around trying to learn as much as we could about a variety, wide variety of programs by many different agencies, not just n. S. A. , the one question, or the one thing i learned most was that you have to know how to ask the right questions. If you ask the right questions, the information is forthcoming. We had no incidents where they said we wont tell you or we absolutely refuse. You do have to know how to ask a second round of questions. So we were just getting, i think, to that point of sophistication. As a body had you gone into operation on what date . We got sometime in august we were confirmed in the prior august. August, 2012. Shortly thereafter we were sworn in. Theres an idiosyncrasy to our statute i would point out. Only the four parttime members were confirmed in august of 2012. Only the chairman has the statutory authorization to hire staff or an executive director. And mr. Medine was not confirmed until may of 2013. We did not actually have the capacity to hire staff or executive director, to say nothing of our attempts to find office space, internets, everything that needs to be done for a fledgling agency. So, that takes me to the question of indpend advocate who could appear in independent advocate who could appear in the foreign intelligence court. Presenting a Public Interest i think there was pretty broad agreement that thats a good idea. When you get into the details of how that individual gets managed and supervised, i get more anxious. I think if the person is an appointee of the chief judge of the court or chief justice of the United States, they risk becoming the pet lawyer of that individual. I think if the court can call on hem or not at its discretion theres the risk that they get completely marginalized when they may have something useful to say. If they are not supervised by somebody, theres the risk that you just created a sinny cure syncicur for a small group of individuals and as long as they appeal to the political galleries that are watching their behavior adequately, they stay on even long after they have become ineffective and not noteworthy to the courtney longer because they are ineffective. There are all these dangers of how you keep that focus and how you keep that task properly done. Make the case for why you all should be the oversight in the context of those dangers. I think we have not suggested that we should be the oversight for the special advocate. I know some have suggested that we be the body to appoint the members, a pool of special advocates or appoint a special advocate. We intentionally did not recommend that in part because we have an oversight function of the agencies involved i misunderstood i thought that was your suggestion. We recommended that the court choose from private attorneys to act as a special advocate in appropriate cases, and that the reporting as to when the court exercised its jurisdiction to bring those parties in. How do you avoid the pet lawyer effect in that circumstance . We thought long and hard about where to put the special advocate. We thought first about the executive branch. We were concerned the executive branch thats approaching the fica court for the authority, it didnt make sense to have it arguing against it sefment we thought of a judiciary, and again the judiciary is supposed to be an independent arbiter. It didnt make sense to have them be the house special advocate. We thought having a private outside attorney who would have the independence to come in and make those arguments and hopefully with some transparency about who is chosen as an advocate so the public can know who is involved and transparency about when they are chosen to participate struck the right balance between independence and accountability. I confess i dont have an answer to it in mind myself, but when you dive into something that is so inherently private and classified as this kind of activity, a lot of the ordinary controls vanish. That leaves some sort of small political dynamics that can take over and i think every one of us at some pont in our lives have had the experience of seeing somebody move into a position akin to this and dine out on it wore the rest of their lives without producing much value. Thats where we hope the rotation of the judges will play a role in that. We have also tried to empower the special advocate to take cases on appeal. There is greater oversight of the process. There is certainly a challenge there, but again we tried to strike what we felt was the best balance between the competing concerns. And also i guess worth keeping in line, the cases which are the special advocate dont happen all that often. A you institutionalize person, they are trying to figure out how to get involved. I think what we tried to do is to create incremental improvement in the current structure, a relatively lightweight system, and to surround it with some of the reporting thats already inherent in the fisa oversight process, that is already the government is required to report to this committee and the intelligence committees on significant opinions issued by the court. We would say, well, supplement that by saying, was there the special advocate invoked in that case . We recommend that that reporting come to us as well. And we did think that the judges generally wanted this capability. In our discussions with the current and former judges of the court, former judges of court we talked to, it seemed that they genuinely wanted the ability to call upon a special advocate in certain cases. So i think our recommendations some that kind of internal checks and balances on the system. The government is currently required to notify the court when there is a significant issue posed in a case. Thats one sort of triggering point. The judges them selves themselves, we did conclude, are generally alert to those, they might not see all of them but alert to thefment then the reporting to this committee after the decisions are made and the question was the advocate, so you dont institutionalize it. I think you could have a good enough workable system that would significantly increase the credibility of the process, add to the credibility of the process without some kind of institutionalized weighty structure. I have gone well over my time and i have two distinguished colleagues here who im trespassing upon. I would be delighted to have another round to continue this discussion. I yield back. Thank you, senator whitehouse. I first of all want to come back to a point that mr. Medine made that we should be immensely grateful to our Intelligence Community nor the courageous and able contribution they make to protecting our National Security. And i said it yesterday when the Armed Services Committee Heard testimony from director clapper, we frequently emphasize the failings because we dont all see the successes. We should be mindful of the courage and dedication that they demonstrate day in and day out. Ome of them in harms way. I may be the only person on this committee who feels this way, that the ve disclosure that only 30 of these records are actually collected, and that the proportion has plummeted since 2006 is a real game changer. It calls into question the entire rational rationale for the metaData Collection program. As a matter of process it really raises the question of credibility for the United States government in the representations that it has made to the fisa court, its failure to correct a representation that evidently it made in 2006 that 100 of these records were going to be collected. Representations made to the District Courts that are currently considering this issue. To quote the Deputy Attorney general in testimony that he congress, Deputy Attorney general james cole said in justification for this program, if youre looking for the needle in the haystack, you have to find the you have to have the entire haystack to look through. End of quote. Im just a country lawyer from connecticut, but if i went to a judge as a prosecutor, i did, and i said we need a search warrant to look at the whole house because we believe there may be incriminating evidence in this house, and we need to search through every room, and thats why we are asking for the warrant to search the whole house. And then the police under my authority went to the house and only looked at maybe a few rooms and decided either they didnt have time or the rooms were dark or some were locked, i would feel an obligation to go back to the judge and say, your honor, we need to at least tell you about the search. And i could think of a number of analagous situations comparable to it. And the question of whether the whole house needs to be searched. Is in question. In this instance the rationale for this program is that all of the data has to be collected so that connections can be made, algorithms can be applied, analysis can disclose whether or not there are communication that may raise National Security concerns. So i guess my question to the panel and particularly to the dissenters, ms. Brand and ms. Cook, doesnt this disclosure that only 30 of these records were actually collected because of the explosion in cell phone use, a legitimate reason perhaps that the government wasnt able to collect all, raise questions not only about the efficacy of the program, but also about its Legal Foundation. I think for the reasons the chairman explained, its touchy for us to talk about this because im not clear exactly on whats classified and whats true. So we cant get into that here. I do think if there were on a perspective basis, if there were an institutional reason why the government would only be tible collect 30 of the records and thats it, forever, that would diminish the value of the program from what it would be if they collected 100 of the records. I agree with that. Another thing that i want to point out is something i said in my separate statement and i think others on the board agree is that for any program like this the government should be continually assessing the value of the program and whether it has diminished or could increase, whether its diminished over time because of changed circumstances, change of behavior of suspects or the public, additional legal tools available, or other changes in the law, everything and they should continue the program. I think they do that already on an informal basis, but i think a more formalized involvement would be good. We certainly all agree there should be ongoing assessment of the efficacy of these programs. If i could return to your first point with regard to the dedication of the workers in the Intelligence Community. Again just to restate that. We found them extraordinarily dedicated. I just want to make clear that our recommendations about the legality of the program has nothing to do with the good faith in which they have operated and the administrations operated and the courts have operated with regard to this program. Our effort is to take a look at our mandate is to look at privacy and Civil Liberties and what protections are available. Section 215 does have protections and we think on a prospective basis, even to the extent the Program Continues for a short period, it should be in place. We are not to impugn at all the good faith of anyone who has relied on constitutional issues or statutory issues. Because we are running out of time im going to cut short my questions but just make the observation that i believe the constitutional advocate far from being a lightweight institution has to be a real heavyweight to protection the constitution to protect the constitution, and i would err on the side of giving that person or office the resources, the authority, the personnel, and ultimately the credibility that will enhance the trust and confidence of the American People in the constitutionality of this process and its legality. Senator frank. Thank you, mr. Chairman. Im just a little confused from my first set of questions. It seems a little at odds with the report. Any of you can weigh in on this, please. Page 205 let me first go on the recommendation nine says the government should publicly disclose more details to provide a more complete picture of government surveillance operations. And then on page 205 you say if the statute such as section 215 continues to be used as the basis for individualized collection and bulk collection, the mere number of section 215 orders could be misleading. So when i asked about transparency before and putting out the number of right now this Washington Post article is speaking to the issue of how many numbers are how many phone calls are being collected, thats collected, it just seems to me, and since the number of orders is, as you say, misleading, i dont understand your answer. I dont understand why revealing numbers that are quite up in this collection isnt more transparency and doesnt give americans a better idea of the dimension of this so that americans can decide for themselves what this program is and whether its legitimate. Or whether its proper. Senator, you have been the leader on this issue and i dont lose sight oft to i think substantial agreement between us and probably between all the members of the board and you on a, the importance of transparency, and the value of numbers as a component of transparency. I think i would simply i was simply responding to what i think is an important but in some ways narrow question, which is how do we handle numerical reporting on Bulk Collection Programs . As opposed to numerical reporting on targeted programs, which i think everybody agrees and some progress has been made and more could be made on transparency of the numerical reporting, how many orders, how many accounts affected on the targeted side. So thats not what i think you and i are talking about now. We are talking about the bulk side. Right. Where obviously one order or three orders or five orders could be meaningless if millions and millions of people are affected. On the other hand, i think we were thinking here what about the next program and the next program and the next program . Nd how do we deal with, again, stays ys, as it is as it is, how do we deal with bulk reporting on the next program and the next program and the next program . What about the program that exists . The program that exists americans know about this program. And we still havent really given them Washington Post will put it on an article. Why cant the government tell us the number of telephones telephone numbers that are having their Data Collected, and queried . Many are being that would give people some idea of the scope of this program and what it is doing. And i think americans deserve to have that information in order to decide for them selves i think it would be very helpful. Listen, i agree with both the airman and mr. Medine on the intelligence people. I believe that they are doing the best job they can. But we have oversight, and part of the oversight to me is what you talk about, how important transparency is. And im very confused about what you write in your report and what your answer was to my first question in my first set of questions. Dont let me hog it here. I agree on the numbers of the queries. The reporting there has been disclosed and could be disclosed. It has been . 99 sure that the government has declassified at least for one year the queries made against the database. , actually, if i could speaking for myself, i agree their first primary question is going to be how big is this . How Many Americans are likely affected by this program . To the extent that this information can be disclosed without unless the government can show, i think that i would suggest this myself, the burden would be on the government to show why it would be a National Security it problem. But to approximate that as close as you can get to that number without there being any security problems, but as jim suggested, the socalled query of this entire databank which we dont know and there is some confusion from the newspaper accounts as to how big that is, and but they have disclosed that they ras ist with a socalled in the area of 300 or Something Like that. What we dont know from that is how many numbers on the first hop or second hop or even a third hop. Its difficult, you have to be careful in defining the number you want. As we learned the way the system operates, this is in the report, when you get the first hop as to which the suspicious number has been in contact with, what happens is the analysts look at all the numbers that prop up and they may look at several of them an annoyians to us. Well only look at one annoyance to us. Well only look at one or may look at them all or may look at some and discard them. Then you go to the second hop from all of those numbers and you get wider and wider swath. I do think your general notion that americans are most interested in some notion of the scope of people who have been affected is one that the government and the congress and all other people should work toward approximating. Unless the government can show that theres some National Security danger there. I wanted to add that one of the policy reasons why we recommend ending this program is that concern by americans that they are being surveiled and whether its 30 or 100 , knowing that the government is collecting your phone calls to your lawyer, to your political organization, to a journalist has a chilling effect. Thats why we think its preferable not having this government maintain this bulk data. And have the information held elsewhere. No matter where its held thats problematic. I know a vote has been called and we have to go. Senator whitehouse, did you have other questions . Perhaps an observation but you can respond and if our time runs out if you want to respond for the record, thats fine. This is probably the most overseen program in the history of the american Intelligence Community. It is setting aside the Intelligence Community is probably one of the most overseen Government Programs ever anywhere. It was managed by n. S. A. , overseen by the department of justice and the odni, with n. S. A. You have relatively independent bodies like the inspector general, office of director of compliance, general counsels office who had important roles in it, it was reported quartly quarterly to the president s intelligence Oversight Board. U had a fulltime court with multiple judges overseeing it. I think that they used to say there are more than 30 different congressional committees that had Oversight Authority of it, but certainly the intelligence committees, this committee, equivalent committees in the house all had oversight over it. Its hard to imagine how you could apply more oversight and have it make an incremental difference. If you add one more office to the wide array of authority engaged in oversight. So to the extent that there was an oversight problem, it raises to me the question more about the quality of the oversight and the organization of the oversight rather than the quantity of it. We certainly threw more oversight at this program than anything in history. Im interested in your reactions to that thought. One more patch i dont think is going to help when theres such a huge quilt of oversight patchwork there already. I think there are a number of things. One is, i dont want to overstate our capabilities, our board is now ainedpent agency with high level clearance was authority to see all the information regarding this programs and report our independent reviews without any revire prior by the white house or anyone else, to the congress, president , and public as we have done with regard to this program. We wont be able to be everywhere. We are very small and stay relatively small, those areas where we look general or in the same position. Right. But our focus is on National Security and balance of privacy and Civil Liberties. They have a much broader focus. I hope we can contribute in some way going forward. As we recommended let me not put you in the position of trying to defend you should have some role going forward. My point is when you got this vast array of oversight already, the most overseen program in history, adding one more thing i dont think is a convincing argument on its own. I think that we have got to take a look at the structure of this patchwork and array of oversight and see if in fact there were oversight problems what did they go back to. I dont mind adding you to the equation, thats not my point. My point is there is already so much oversight i cant believe adding you will make a huge marginal difference. It will make a good difference and i dont object to your further participation in this, but i really think to the extent that oversight is condemned in all of this, the solution is not adding more small elements of oversight to an already vastly overseen, multipli overseen, frankly hard to imagine how you could add more oversight to it other than yourselves. Every branch of government is covered, every house of congress is covered, executive branch has multiple redundant i think you are 100 right. I actually think thats why the value of our board and what needs to be done is, i think, what we did was we pulled backp and said wait a second. Wheres the Legal Foundation for this . Upon what structure has all of that oversight been created, and we concluded, the majority, that the foundation itself was inadequate and then i do believe we took remarkably, the m