There once establishing this number from alshabaab, you can go after that persons telephone records and all of the contacts that person has made. The basic question where faced with, do you need to collect five years on data in everyone in america and their telephone records, so the hay stack, which is pretty big thats a fair question. The question would be is it enough to look prosphectively in the future right. It may be the plotting youre looking for occurred in the past. It if you dont have that persons record in the past you cant determine . If we required the phone companies to retain the records for five years. Thats a good point. Its not possible. It did [inaudible] retain it for the benefit of the government. How would it be . I think it would require a legal change. I dont think its hard. I dont think you can get there from here. You have to think about the rest of the attribute necessary to make it a useful adventure. Senator feinstein said ask him about the offense. I would say in a classified session i can give you chapter and verse on the expense. Its dpircht whether you choose the implementation or leave it with the provide piers. They should bear the expense. Thank you. Senator lee. Thank you, mr. Chairman, as i understand it, the nsas collection of ma tada that, the kind weve, discussing today is pursuant to 215 of the patriot act. Section 215 b2 a of the act places an important limitation on the collection, and it limit the governments ability to collect that meta data to where circumstances data in question is quote, relevant to an authorized investigate, closed quote. Its difficult to define in the abstract. Its somewhat fluid concept and one of those things that some might say i know it when i see it. But i struggle to define it. Yet regardless of how difficult it might be to twin in the abstract what relevance is. Continue dont you think we have left the station of relevance long before we get to the point of collecting meta data on potentially 300 million americans, and their cell phone usage . How can one get ones mind around the concept of that volume of information . Meta data or otherwise, all being relevant an Ongoing Investigation . Well, senator, he can chime in. Noted a little bit earlier, how broad, as you noted yourself, the concept of relevance in civil discovery and many different kind of legal contexts. It can be things that will lead you to things that you need. Right. As i understand, mr. Lynch, very broad conception of relevance, and as he recently explained in the comments at the brookings institution. I assure you, as a recovering lawyer myself, theres no con texas in civil discovery or otherwise in which one may define relevance broadly enough to take in information regarding each and every single american who owns a telephone. The answer i give you to that, senator, we are not really accessing or getting in to all that have meta data that is stored in the data base. We dont get to roam around in it. We dont get to look tat to our Hearts Content and say this and that is relevant. Lets take that. You have to look in the context of the primary order which was declassified and issued today. The only way you can access it is if you have reasonable suspicious that the number you are going query off of is in fact related to specific terrorist groups. And that has to be documented. If you dont have that, you cant get in to this. I think the surveillance cop accept, i think is very important here, you cannot surveil this without the gate being checked to. The gate is not controlled by a warrant, i mean, if you want to access that. You dont want to get a warrant to access it. Its controlled by internal procedure; corre . Thats correct. They are controlled by the court order. Ty arenrolled by compliance audit that are done both by the executive branch and the curt looks how its implemented on a periodic basis. Okay. Did you have something to add . Very briefly. I want to make clear that the standard of relevance that i articulated in the speech is not mine alone. Its been prove bid the judge of the fisa court and has been known to member of the committee and the Intelligence Committee at the time that the section 215 authority was renewed. As i understand that. As i understand that. Its been part of the problem weve had is that until recently most people didnt have any idea about those. We have had significant constraints that limited our ability to explain why some of us had concerns with the patriot act. Why some of us on both sides of the aisle voted against reauthorizing the patriot act. We were unable to speak about this publicly. We have secret procedures being undertaken pursuant to secret law. It has been a bit of a problem. Now what would you say then getting to you, mr. Cole. To my constituents, as i understand what youre saying, were collecting it but not looking tat. Were collecting it but not closing our eyes. Dont worry about that. What would you say to my constituents saying its not governments information. It doesnt make it relevant under the law. It still doesnt meet what many of my constituents believe to be well within the reasonable expectations of privacy for the government to collect that much information potentially information about 300 million americans. Well, i would say two things. First of all, weve had 34 separate times, the court said that meets it and have it all and meet the restriction. The further thing, what is important, its worth having a debate about a better way to do. Worth having a debate where were going strike the balance between security for the nation and making sure that peoples privacy and civil liberty rights are being honored. Its a tough balance to find. Its a balance worth talking about. Its the process we are welcoming and engaging in right now. Okay. Thank you. I see my time is expired. I want to comment i appreciate your insight on this. I think it is worth discussing publicly. I think its something we need to consider from a constitutional standpoint. We have been relying on a 34yearold Supreme Court case. Smith v. Maryland to get this idea that meta data is somehow beyond the reach of the Fourth Amendment. We have to remember that smith did not involve collection on hundred of millions of americans. It involved collection on a single target. It involved collection in a manner that is completely archaic by todays standards. And by todays standards would involve a minuscule amount of information. I think at some point when you collect that much data on that many people. Whether its one person, it might create some problem. That much data on hundreds of millions of people creates an even bigger problem. One that i think was not considered by the Supreme Court of the United States in maryland v. Smith. One we need to revisit. Thank you, senator lee. Senator white house. He served on this committee and the Intelligence Committee. I appreciate you being here. Thank you, mr. Chairman. One of the mr. Cole, you just said its worth having a debate on these issues. I think youre right about that. But i also hope that the executive branch takes a lesson from this experience about the value of classification, or what i would consider overclassification. Ive seen this over and over now. When we were fighting with the Bush Administration about the torture program, the executive branch got to tell its side of the story because the executive branch were the declassifiers, we were stuck with facts that we knew that blew up the argument that was being made by the executive branch, but we could not articulate because they were classified. Weve seen it on cyber, where so much of the American Public is unaware of the cyberthreat we are facing. Thankfully, we are becoming more aware. For a long time, we were just in the dark about what was going on because in the private sector, companies didnt want to talk about it for fear of aggravating their regulator, their consumers, their clients, even giving their competitors advantage. And the government just wildly overclassified everything. Now we have, i think, a terrific article that senator feinstein wrote, we have, i think, very good testimony by bob mueller. We have a lot of good information that helps the American Public that understands these programs. It all came out late. It all came out in response to a leaker. That there was no organized plan how we declassify it so the American People could participate in the debate. I think theres an executive branch reaction toward classification, i think that reaction is in part because of the advantage it gives the exec executive branch relative to the branch that cant declassify. I think over and over again looking back we are worse off for the effort in the first instance. I would urge do you take a look at this, you know, when it bursts theres an old saying im not going get exactly right. T something about the rumor is all the way across town, before the truth can get its boots on. You have lived that experience in the last couple of months. I hope this has an effect on you. Its a recurring problem. We really need to be balancing much more carefully the value of declassification against the value of classification. I think you guys are terribly onesided in favor of classification. And Something Like this comes and pow, you are still trying to get your boots on because you never took the appropriate steps to news out about the program that would have avoided, i think, a lot of this. I would like you to have a chance to react to that. I think you make very valid points, senator. These are all topics we need to debate. Theyre not easy topics. They involve the same balancing. The same balancing we are trying to do between National Security and Civil Liberties and what kinds of program we put in place to gain intelligence information. Its the same kind of debate we need to have about what is classified and what is not classified and what secrets we let out. If it was easy, we would be having these left and right. I dont think, at least from what ive seen the executive branch is doing it to disadvantage the legislative branch. I think it may be it has that effect. It may have that effect. Ly conceive that. I think its done because people are cautious. Its easier to overclassify than to underclassify. Its safer to overclassify than underclassify. And now were having to get in to the hard work of fiefnedding just where finding where that line is. Its a difficult job to do. Its worth doing. Senator, can i add or the torture program gets exposed. We have a significant cyberattack. Or something happens that shows the short term decision it was easier to classify was the wrong decision. I want to add on this. I know, you are youre familiar with what im about to say, but we are having a public debate now. Its not without cost. The information that has been leak is going to do damage to our ability to protect the nation. We are going lose capability. People are paying attention to this. The way that typical the congress, through the legislation passes the internal rule has historically thought to achieve the balance between appropriate oversight of intelligence activities, and the need to protect sources and method is through the primarily the Intelligence Committee, but also some other committee of congress. This committee, the Armed Service committee, the appropriations committee. And typically thats the forum in that has been used to strike this balance. I get that. My time is expired. Let me entrepreneur in and say we all get that. My point is the American Public is an important part of the debate. We would be better off if there was not a strong i instinct of classifying things and keeping things classified and develop information in for the American Public that minimized that intelligence collection loss and allowed us to have this debate. Thank you. Thank you, mr. Chairman. I want to join in thanking the chairman for the hearing, and for his legislative proposal, which i have joined. To each of you for your extraordinary contribution to our nation, but also to the thousand of others and the Intelligence Community and special operations who have thwarted and stopped terrorist threats to the country. Which too often i believe have been i think ignored because the effort to stop them have been successful. The debate is one that is very appropriate in a free society that is trying to protect itself from terrorism by using search and surveillance, which have a role, and and what we grappling to do here is define how to reconcile the secrecy of search and surveillance, which necessarily have to be so with privacy and Civil Liberties and all the constitutional guarantee that makes unique among the nation in the world and the greatest nation in the history of the world. You know, i have been a litigator for close to forty years. I never doubted that the scores of judges i litigated before have a commitment to rights and privacy and all the constitutional right. I have no doubt about the judges pushing back and having a commitment to the rule of law. But in appearance, the system is failing and failing fast to maintain the trust and credibility of the American People. Who want to be protected from terrorist threats, but at the same time also protected from the degradation of their constitutional right. So im introducing a bill that would change the appointment and selection procedure so that the appearance and the reality of diversity of view is maintained and enhanced. And ill be introdisusing that bill tomorrow that would involve this Circuit Court judges in the appointment process with the continued involvement of the chief justice and change, also, the fisa court of reviews selection process. I found in my years one of the judges Worst Nightmare is incompetent counsel. The reason is, especially in a criminal trial, incompetent or lack of counsel means that the record on appeal is weaker, that test the clash of information should be involved in some way in the fisa court. The second bill im enforcing is ad advocate not necessarily in the exparty proceedings on every single warrant or surveillance or search, but at some point where there are significant issues of law so that different side are presented. Challenges are made. And the judge or panel has the benefit of the contention that is at the core of our court process. Our courts, not only insist on but thrive on the clash and testing of different point of view which is debate on a legal issue or cross examination. Thats at the essence of our litigation process. So i think in appearance if not reality that the current design of the fisa court stack the deck against the protect of our Civil Liberties and can be improved and enhanced without sacrificing either speed or security because those special advocate can be cleared beforehand for security purposes, they can be involved after the fact, if necessary. On appeal on effect or the United StatesSupreme Court. And i hope, this is to lead to the question, i hope mr. Cole that you will join in this process of trying to improve the current fisa court structure, and i would like to know whether theres active consideration of changes in the selection procedure and the involvement of potentially a special advocate or independent counsel of some kind in this process. Senator, i think at this point theres active consideration of a range of issues. Just to get at the kinds of things youre talking about to make sure that the process works as well as it can to balance both of those important issues. And make sure that its transparent enough so we maintain credibility with the American People about this program. Those are difficult issues as we have discussed today for several hour to find the right place. Its with its definitely something under crossquestion and active discussion in the administration. Thank you, mr. Chairman. Mr. Cole, i have a question i i understand the government believes that every domestic phone record is relevant. It can be obtained using section 215, the patriot act. As i understand that fisa court agrees with that interpretation. But you then place restriction how it can be used once you collected it. But im going say limit on this theory. Couldnt you invoke under this section 215 to obtain virtually all of the commercial data americans phone records are relevant about our credit card records. What sides we go on on the internet. What we may bookmark our medical records that we have it on the computer. Firearm records. We keep firearms. All of those things available . Well, i think theres two point points here, mr. Chairman,. Number one, the way they find them relevant in the context the restriction and what citizens you are looking for. You center to take all of those feature of the phone record process in to account of how can it be done . How reasonably it can be done. What is the need for speed . What is the need integrate all the records that are coming together . And find only when you look at that entire mix that this kind of program and these restrictions. To your question. You would have to make that same showing for those other kinds of records as to the need for that. And the need for the restrictions. But if our phone records are why wouldnt our credit cards record . Wouldnt you like to know if somebody is buying fertilizing you use in bombs . I may not need to collect everybodys credit cards records in order do that. Because, again, these are were not collect their phone records so question wander them through. Its only the phone records being done look at the connection. It somebody is buying things that can be used to make bombs, of course, we would like to know that. We may not need to do it in this fashion. Director clapper said nsa would notify congress before it cell phone Location Information in the program. Is there any legal impediment to expanding the program for cell phone location . I dont believe there would be a legal impediment. Yesterday they issued a ruling that goes that issue. If the legal immedment are not the only issues you take in to account here. I understand. I want to put several items in the hearing reco