Transcripts For CSPAN2 Senator Wyden On Intelligence Director Nomination 20170315

Will be a good fit for the director of National Intelligence community. Now as we consider senator coates as a nomination and recognize that his top priority by admission would be the reauthorization of the Foreign Intelligence Surveillance Act section 702, i want to begin that discussion today because it is because Intelligence Community has stonewalled democrats and republicans in both this body and the other body for six years. On the information that we need to do good oversight that i have come to the floor to outline what i think this central issue is all about. I will begin my remarks mr. President by way of saying that at a time when americans are demanding policies that give them more security and more liberty, increasingly we are seeing policies, from both this body and the other body that provide less of both. A good example would be a beginning strong encryption. Weakening strong encryption is bad my security standpoint and from a liberty standpoint. When government creates policy, it gives the American People less security and less liberty. Obviously the American People are not going to react well. My view is when the government particularly, intelligence agencies, do not level with the American People about largescale surveillance of lawabiding americans, our people are justifiably angry. And when the government tries to keep this information secret, as i have pointed out on this floor before, in america the truth always comes out. Leveling with the American People is the only way for agencies to have the credibility and legitimacy to effectively do their jobs. And they have critically important jobs and keeping our people safe from threats. Now, with respect to senator coates, it is confirmation hearing since he says the foreign Intelligence Surveillance would be his top priorities. I ask our former colleague, how Many Americans, innocent lawabiding americans have actually been swept up in the Surveillance Program known as section 702 of the Foreign Intelligence Surveillance Act . Under section 702, the government conducts warrantless surveillance of foreigners who are reasonably believed to be overseas. It does this work by compelling Telecommunications Companies and Internet Service providers to provide the content, phone calls and emails and other individual communications. There are several different ways that this happens. And i will get to that in the course of these remarks. What we are talking about, what i want people to understand is that this goes to the content of communications. This is not about metadata collection. And congress and the senate knows reforms that in the usa freedom act. This is surveillance without any warrants. Once they sign off on the overall program, the details are up to the government. Now this was not always the case. For decades, individual warrants were required when the government needed the assistance of the countrys telecommunications firms. Then the Bush Administration created in secret, illegal warrantless wiretapping program. After the program was revealed, the government then went to the Foreign Intelligence Surveillance Act court to get approval. But when the government ran into some trouble with the court, the Bush Administration argued that the congress should create the current program. It was surpassed in 2007 under the name protect america act. That became the foreign intelligence at amendment in 2008. Fortunately the congress included a sunset provision. Which is why it was up for reauthorization in 2012. And that is why it is up to reauthorization this year and this year, it is senator coates his top priority if confirmed. He will be the point person for this legislation. But i want it understood that the reason that i am going through this background is that i believe the American People deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate. You cannot ensure that the American People have security and liberty unless you know the impact of section 702 of that bill on the constitutional right of lawabiding for six years president , in this body democrats and republicans in the other body democrats and republicans have been asking the same question. How many lawabiding americans are having their communications swept up in all of this collection . Without even an estimate of this number, i do not think it is possible to judge what section 702 means for the poor liberties of lawabiding americans. Without this Information Congress cannot make an informed decision about whether to reauthorization section 7024 what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent americans. At the nomination hearing before the Senate Intelligence committee, i asked senator coates will that they would commit to providing congress and the public with this information. I say mr. President , because of my respect for senator coates and our longtime cooperation on issues like tax reform and a variety of others i hope that senator coates would be the one after six years of struggling, this information i hope that senator coates would make a commitment to deliver it to the Senate Intelligence committee before work on the reauthorization began. Instead senator coates said and i quote i will do everything i can to work with admiral rogers at the nsa to get you that number. If confirmed, i hope that happens. But after asking for the number of lawabiding americans, it gets swept up in the searches for years. And getting stonewalled by the executive branch hoping to get the information you need to do real oversight is just not good enough. The problem, the lack of information on the impact of this law on the privacy of americans goes all the way back to the origins of the authority. In december 2007, the Bush Administration and its statement of Administration Policy on the Amendment Act stated that it would likely be impossible to count the number of people located in the United States communications were reviewed by the government. In april 2011, a former colleague senator mark udall and i then asked the director of National Intelligence for an estimate. In july of that year the director wrote back and said and i quote, it was not reasonably possible to identify the number of people located in United States Communications May have been reviewed under the authority of the Foreign Intelligence Surveillance Act. He suggested reviewing the classified number of disseminating intelligence reports containing a reference to a us person but that is very different than the number of americans who communications have been collected in the first place. And that is what this is all about. Mr. President. How many lawabiding americans, innocent, lawabiding americans are getting swept up in these searches . And it will be an increasingly important issue as the nature of Telecommunications Companies continues to change. Because it is now a field that is globally interconnected. We do not have Telecommunications Systems just stopping the national borders. So getting the number of americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this and doing our job at a time when it is being reauthorized in the American People that they are not mutually exclusive. So the director then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of action 702 rate although the mistaken targeting of americans and the people in our country is another serious question. The question that democrats and republicans have been asking is about how Many Americans are being swept up by a program that according to the law, is supposed to only target foreigners overseas. So let me repeat that. That is what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. Democrats and republicans want to know how many lawabiding americans might reside in alaska or oregon or anywhere else that are getting swept up in these searches . So this Bipartisan Coalition has kept asking in july 2012 anticipating the first reauthorization of section 702 of the Foreign Intelligence Surveillance Act. I and 11 other senators wrote to the director. We wrote that we understand it might not be possible for the Intelligence Community to calculate this number with precision. But it is difficult for us to accept the assertion that it is not possible to come up with even a rough estimate of this number. When generating a size estimate, if it would require too much labor we would be willing to accept an imprecise one. So we asked about imprecise numbers. Lawabiding americans are getting swept up in these searches that the law says are designed to target foreigners. So we asked about orders of magnitude. Is the number closer to 100 or 100,000 or 100 million . We still got no answer. And section 702 was reauthorized without this necessary information. So last year, looking at the prospect of the law coming up, there was a renewed effort. To find out how many lawabiding americans are getting swept up in these searches. In april 2016 bipartisan letter from the House Judiciary Committee asked the director of National Intelligence for a public estimate of the number of communications of transactions involving United States persons are collected under section 702 on an annual basis. This letter coming from the House Democrats and republicans, again asked for a rough estimate. This Bipartisan Group suggested working with the director to determine the methodology to get this estimate. In december, there were attempts in the news media that something might be forthcoming. But now, we are here with a new administration considering the nomination of the next head of the Intelligence Community who has said that we are section 72 is his top legislative priority and there is no answer insight to the question democrats and republicans have been asking for over six years. How many innocent lawabiding americans are getting swept up in these searches under a law that targets foreigners overseas for having described this, i want to explain why this is so important. Starting with the many ways in which innocent americans can be swept up in section 702 surveillance. The first are targeting in which contrary to the law, the target turns out to be an american or someone in the United States. The full impact mistakes, americans is readily apparent. The most recent public report infections for two noted that there were complaints since involving surveillance of foreigners in the United States surveillance of americans. This is in violation of the law and it happens. The second way in which americans could be swept up in section 702 is when they communicate with and overseas target. This is usually called incidental collection and it is often mischaracterized. I have heard many times that the program is intended to find out when americans are communicating with quote bad guys. No i am not interested in a bad guys caucus. I know no one that is interested in protecting the country from those kind of threats. If a known terrorist overseas is communicating with someone in the United States, we ought to know about it. Section 702 is not just a counterterrorism program. The statute requires that the collection be conducted quote to acquire or intelligence information. As implemented, the standard for targeting individuals under the program is that the government has reason to believe these persons possess or are expected to receive or are likely to communicate foreign intelligence information. Obviously that is broad, it does not even require that a target is suspected of wrongdoing. So if someone tells you that your communications will only be collected if youre talking to al qaeda or isis, that is just factually wrong. It is also important to note that the government is prohibited from collecting communications only when the senator of an email and everyone receiving the email are in the United States. For an american in the United States to send an email to another american in the United States, but the email also goes to an overseas target, it is going to be collected. So that then brings us to the different kinds of collection under section 702. And how it affects the liberties of our people in different ways. In one form of collection not as prison, they order a Internet Service provider to provide information to and from the specific email address. Then there is something known as upstream collections. Which is when the communications are collected off the telecommunications and internet backbone. In other words, phone calls and email messages are collected in transit. This kind of collection raises a number of other concerns. A number of other reasons to be concerned about how many lawabiding americans are getting swept up. For one, it is through upstream collection that the government can collect emails that are needed to or from a target. The email merely has to be about the target. Meaning for example it includes the targets email, address and the contents. In other words the government can collect emails to and from americans. None of whom are of any interest to the government whatsoever. As long as the target email address is in the content of the email. The law only requires that one of the parties in the communication who again could be another american, is overseas and even that requirement is hard for the government to meet and practice. So the implications here ought to be pretty obvious. You dont even have to be communicating with one of the governments targets to be swept up in Foreign Intelligence Surveillance Act collection. You dont even have to communicant with a foreigner. You have someone emailing you just needs to reference a target email address. So i mentioned the target is not necessarily a terrorist because they allow for surveillance to require foreign information. That is to allow the targeting of individuals that the government has reason to believe they are expected to receive more likely to communicate foreign intelligence information. It is a broad standard in the government can then collect communications of all kinds of foreigners around the world. So think about how easy it would be for an American Business leader to be in contact with a broad set of potential targets of this program. Consider how easy it would be for erican communicating with other americans to forward the emails of these people. All of this could be collected. By the government. The upstream collection also look what are called multicommunications transactions. This in email that is too far from target but the email is embedded among multiple communications that are not. These Communications May have nothing to do with the target. But the government just kind of ends up with them. And some of them are sent and received entirely within United States. These are the ways in which lawabiding americans, innocent lawabiding americans who have done absolutely nothing wrong. Both overseas and in the United States can have their communications collected under the Foreign Intelligence Surveillance Act. These are lawabiding americans. Innocent americans and they are not necessarily suspected of anything. And it is their privacy and their constitutional right. This has caused democrats and republicans here in this body and in the other body to seek the actual numbers of how many lawabiding americans are getting swept up in these searches that are supposed to target foreigners overseas. Now the reason that this is important mr. President is the program is getting bigger and bigger. Size of the program, the extent to which Americans Communications are being collected raises obvious concerns about our fourth amendment. The question is not if the Program Raises constitutional concerns but when. And that gets to the heart of what our bipartisan exact numbers are classified bed the public reporting reports steady increases then net some point that the extent of thee communications it is not ifs of Program Raises constitutional concerns but when. Added that part of the Bipartisan Coalition. I if it is not possible to reauthorize this live then how Many Americans are being swept up by this program . Abo you cannot determine if itla has crossed a line. Of the Oversight Board this is an agency that the congress has passed that theso agency has raised the same concerns we are outliningal this morning in the 2014 report by the board. Ns passed by the congress they concluded the alack ofgr information of lawabiding americans under section seven 02. To to Balance National security interest with a private will premise of the u. S. Persons. To be close to the line of to much expansion of u. S. Persons communications or the use to push the program over the line. They recommended mr. President , with the Bipartisan Coalition has been calling for providing to the congress to the extent consistent with National Security to get data on the lawabiding americans the most frequently heard argumentheir with the Bipartisan Group of house and Senate Members that whatever number of communications are collected on law abiding americans is minimized that implies the information about americans in is hit in. Doe was is a particularly important issue. Rough th but the other side to talk frequently. He c live lawabiding americans are having their communications swept up we should not get all concerned about that because this array of Americans Communications is being minimized in somehow that means it is not necessarily what happens and to begin with all that collection does not stay at the National Security agency. That they are through the section seven o to go to other agencies including the cia and fbi then you have those three agencies would particular for all that datae. Communications to or from about americans the telephone number, email address, a key word or phrase. They can do that without any warrant. There doesnt even have to be a suspicion that the american is engaged in any type of wrongdoing. They could conduct searches for communications to seek evidence of a crime. In the Central Intelligence agency the fbi with how many searches for americans. With a number of searches using the metadata collected under section seven 02. So for americans to occasions but before 2011 the fisa court prohibited querys for u. S. Persons. Under the bush demonstration and the first two years of the Obama Administration with is a backdoor search of lawabiding americans then they sought to change the rules and in april 2014 thes director of National Intelligence in response to questions publicly knowledge and by june the house voted overwhelmingly the prohibition did not become law but it will be considered in the context of this reauthorization. So what is the privacy impact . And 2014 i managed to extract from the Intelligence Community about the subjects for the searches to are the subjects of these searches . Does not tell us how Many Americans are potentially the subject of the searches the potential for a abuseto would be smaller jesse opposite potential ised greater that the government can pull the communications there is no way of knowinged st. How easy it would be for the government to use this law as a means to read the males as a political activist. Or journalist. I know one to turn to the open for abuse ultimate form of abuse. G the purpose of the acquisition is to target a known person reasonably believed to be in the United States. This also applies to u. S. Persons how is this defined and how can the public be sure it isnt happening . If you look you can see why there is bipartisan concern is only prohibited if theat purpose is to get the communications of americans. The question has arisen if only one of the purposes what is actually acceptable . When the Foreign Intelligence Surveillance Act passed with a prohibition on reversed targeting but that was before the country knewht about the collection of females that are only about a foreign target that could be to and from americans that is before the Obama Administration sought and obtained to have a warrantless search out a section seven 02. T that makes an important point to me this Bipartisan Coalition that i have been a part of has fought back against executivebranch overreach whether Democratic Administration or republicangens and i have cited the fact are that president obama ise brought back something with a Great Potential that presidenpresiden t bush said he wanted no part of. So to understand exactly this go so all of these searches are identified so to develop an interest in Americans Communications are looking for these are the same agencies better in ahe position to encourage f ongoing collection by targeting the overseas party. Big so i believe the Bipartisan Group believes there isec substantial potential for abuse because of these decisions taking place in the executive branch is possible that no one wouldt ever know. To the privacys Oversight Board since it requires the communications is one of the biggest open questions as a continuing source of public concern. Executive branch has responded with any number of excuses why it could not provide a number of how many innocent lawabiding americans are swept up in h the search and. But as members of democrats and republicans have said repeatedly, an estimate is sufficient nobody is dictating how this be done. That they themselves would be invasive of privacy. Ernment this is something of a head scratcher and the value to know how many lawabiding americans are swept up the the privacy advocates call the farfetched excuse does not add up in terms of the benefit that Many Americans are swept up in amorphous searches. Of calculating have they have renewed this in the last few weeks if to have a discussion about the of methodology under consideration. In the months ahead the senate will be debating a number of issues relating to this topic such as u. S. Persons, reversed targeting real and the collection communications that our just about the target the senate will discuss how to strengthen oversight by the fis a court, congress court, congress, privacy board right at the center of the debate and there is more information that the American People need to carry out its responsibility to do real oversight so the center of these discussions t of vice of involves one question how many innocent lawabiding americans have spent swept up in this program that has been written and developed to target foreigners overseas . Congresss judgment about the impact of section seven 02 depends on the assessment constitutionalityht on the understanding with the impact on americans of full grasp that requires knowing how many Americans Communications are being searched. Callous questions related to the reauthorization and i will close by saying what those questions are so real oversight over a critically Important Program you have to have that information should there be safeguards . Should the Congress Legislate on the collection t of communications about targets because it raises unique concerns about the collection of lawabiding americans . Nforma relating to the dissemination with the non intelligence purposes. Think about that for a minute. Leer at what does that mean to them with the use of that information by the fbi for non intelligence purposes. Wis that is exactly the kind of question that people will ask and i admit heading homellsy today and those are exactly the kind of questions that oregonians ask for people understand this is a dangerous time. Are there is a lot of people out there that any politician who tells you you have toa give up your liberty to have security is not working in your interest because this what policy gives both that is what i talked about the benefits of strong encryption. In these questions are ones that i dont think are particularly partisan. Said to be seeking the information are caught up in in the efforts to target a foreigner overseas and we are now incredible moment of government Surveillance Program but the privacy and Constitutional Rights by the end of the year that maybe part of the answer that we have to have the best possible estimate to answer those questions that i just outlined. The American People Want Congress to get to their bottom of questions that go a that promote both the security tuned liberty it in public expects a full debate you cannot have a full debate over the bison act unless you have some sense sense, americans are swept up in the searches of foreigners. I believe the American People expect serious oversight with assurance that the representatives in congress have a sense of what is being voted on after years of secret Surveillance Programs revealed only in the news media the public is right the insistence on more transparency so getting the information that i have described today is a critical for step once theyal know the impact of thisve program on americans then you can have a fall in real discussion with the director of National Intelligence. To very much like dan coats h laugh of bipartisan cosponsor of what is still the only federal income tax reform proposal we have had t since the 1986 law was offered i cannot support any nominee to be the head of National Intelligence, if the nominee is brought before the Intelligence Committee to show American People to promote security and liberty for my friendship for senatoa nomination i know the absence of a quorum. This. My grandparents grew up and live their lives in the era of blatant segregation their sense of fairness was molded i watched as my grandfather was called boy i watched as my grant grandmother suffered the indignity the use of a bathroom but through all the remain fair and decent good people. Indeed in my lifetime, i expect to see three, four or even more women on the high court bench. Not shaped from the same old but of different complexions yes, there are miles in front but what a distance we have traveled from the day president Thomas Jefferson told his secretary of state the appointment of women to Public Office is innovation for which the public is not prepared. North jefferson added, and i