Rep. Reyes House Intel hearing -- opening salvos

By Carol Gee

Regarding the Protect America Act --
Section 1 --

House Select Committee on Intelligence Hearing, Thursday -- 9/20/07, chaired by Sylvestre Reyes (D-Texas), paraphrasing as best I can from my real-time notes taken during the C-SPAN rebroadcast. This is the first in a series of blog posts. I hope to let everyone know more about the Congressional process of fixing the Protect America Act (PAA) before it expires in February of next year. Both the Senate and House are holding hearings at which members of the Intelligence gathering community are giving testimony. I am telling you what "stuck out as significant" with me as I listened to this hearing twice. I admit at the outset to a Democratic/civil liberties advocate bias.

The opening salvos --

Chairman Reyes' opening statement made it clear that his intention includes "protecting liberty against unchecked power." He reviewed the legislative history of the new Protect America Act (PAA), including the rushed final hours of Congress and the administration's work. He asked the witness, Director of National Intelligence (DNI), Mike McConnell, what was it about House Bill 3356, "the result of good faith negotiations," that made it unacceptable. Reyes stated, "That bill protected the constitution, but the administration rejected it. Which of the checks and balances did the administration not like?" The Chairman discussed the bill the was finally passed, defining it as "the administration's bill. It contains vague and confusing language, and gives only rubber stamp authority to the court." Rep. Reyes reiterated the documentation request of 3 months ago, namely, the original Presidential authorization for the warrant less wiretaps, as well as the Department of Justice's opinion of the program. Chairman Reyes appeared to have lingering hard feelings because of Admiral McConnell's apparent inability to make a deal and hold to it during the bill's pre-passage period. The Chariman, while still soft-spoken, seems more confident as he gains experience at presiding. I believe he could be a civil-libertarian.

Ranking Member Peter Hoekstra (R-Mich.) opening statement -- He reminded people that Republicans were not in in on the August negotiations about the bill's terms. He said that the PAA "gave tools necessary, provided balance and met the need for speed and agility. He said "Cold war methods were not good enough to meet jihadist threat. The bill closed the gap. The PAA has made us safer," citing recent arrests in Germany and Denmark. Rep Hoekstra stated that, "The threat is real; we heard this on our trip to Middle East. And earlier this week we received testimony about no reverse targeting, no searches of homes, etc. . . Special interest groups want to extend civil liberties to foreign citizens and even terrorists." Hoekstra would much rather be the Committee Chairman. He has an occasional patronizing tone that can be irritating.

Rep. Darrell Issa (R- Cal.) interrupted, pointed out what he called "misstaments regarding spying on our soldiers in Iraq by way of their phone calls and e-mails home. . . In WWII and Korean wars, censorship was expected by the soldiers." Issa has an often nasty tone that is thoroughly irritating.

DNI Admiral Mike McConnell's opening statement -- The DNI began by emphasizing:

"the need for lasting modernization of the FISA laws. . . . My job as DNI is to achieve understanding, and to provide warnings." He explained that in the Foreign Intelligence Surveillance Act (FISA), "the definition of 'Electronic surveillance' did not keep pace with the technology. The original 1978 FISA law came about as a result of civil liberties abuses from the 1940's into the 1970's. The law was extremely complex. It required a warrant for United States electronic surveillance (through wires), but not for the surveillance of foreigners (through the air). Now, because of advances in technology, air and wire have reversed. Over time, due to the location in the U.S. of the actual intercept of foreign intelligence on wire (fiber optics), the FISA judges still required warrants to target foreigners. We had disagreement on this and called for the law to be changed. We just could not keep up if we had to get warrants. And warrants should not be required in order to give constitutional protections to foreign subjects.

Regarding disagreement at the end of the negotiations - what finally made bill 3356 unacceptable to me before the changes - was that we were unable to see the consequences of a word here and there in the several drafts. Left open was the possibility that a "probable cause" level of justification would still be needed. . . Threats are real and serious. Just look at the National Intelligence Estimate published in July. It is posted on our website. There will be a persistent threat for the next 3 years, primarily from al Qaeda. The threat is political and economic with a goal of mass casualties, and to instill fear in the population. The threats are chemical, radiological, biological, and nuclear. FISA is the biggest source of information about WMD's.

The pillars of the new law allow Electronic Surveillance without warrants of persons outside U.S., who we have reasonable reason to suspect, are a threat to the U.S. The process is overseen at 4 levels, including Congress. It allows us to direct telecommunication companies to cooperate and provide us the information giving those companies proscriptive immunity. It requires FISA court orders for surveillance of persons in U.S. and of U.S. citizens.

Three changes are still needed in the Protect America Act - the definition of Electronic Surveillance needs to be clarified, we need to give permanently retroactive liability to private sector, and the application process for FISA warrants needs to be streamlined.

The more I am exposed to Admiral McConnell, the less respect I have for him. Even though also served under President Clinton, he does not exhibit the level of accuracy I would like in a DNI. We cannot "just trust him" to have as much passion for speaking truth to power and protecting Americans' civil liberties as he does for being the Head Spook.

Assistant Attorney General for National Security, Kenneth Wainstein,* has been in office just under a year. He testified before a closed session of the committee last week and also sent a subsequent letter** to Chairman Reyes outlining "concerns won't become a reality in practice." (See next section for further explanation). The AG wants to "make the act permanent. . . It is the Executive branch that does overseas surveillance. . . . Telecommunications has seen a revolution during the last 29 years. What we wanted changed was the quaisi-constitutional protections to foreigners. . . . Now we want the PAA as is, plus the more comprehensive bill introduced in April that was not passed. . . Wainstein outlined a comprehensive "regime of internal review and Congressional oversight. Our actions prove we can be trusted. We do audits and internal reviews. We send comprehensive reports to Congress, beyond the requirements." For some unexplained reason, this AG is rather likable. He seems to be honest, even if clearly toeing the party line. We could do a lot worse here.

Section 2 - The White House Position on FISA
Press briefing by Dana Perino -- 9/19/07 -- transcript:

Kathleen --
Q Dana, the President today called for the Foreign Intelligence wiretap law to be made permanent, but what is the White House willing to do to address the concerns of Democrats that this law, as it's currently written, could be used to search Americans' homes, their mail, their business records?

MS. PERINO: I know that that has been one of the concerns that the Democrats have expressed. I do think it's unfounded. That is not how we interpret the legislation. It's not anything that we are utilizing. This is very specific parts of the law in order to gather foreign intelligence to make sure we close an intelligence gap that had opened up once the technology had changed, but the law hadn't since 1978.

To the extent that there are members of Congress -- I was going to say parliament -- members of Congress who want some changes in the law, and they have specific suggestions on how language could be clarified to suit their needs, to give them comfort with the law, but not weaken the act, we'd be willing to take a look at it. But as I said, we don't believe anything needs to be changed, but we're willing to listen to them if they can think of something that will help.

Q How do you explain then what the Assistant Attorney General Kenneth Wainstein said in a **letter Friday to Congress, where he said that Justice Department lawyers "do not think" that it authorizes collection of medical or library records? But he went on to say "to the extent provision could be read to authorize the collection of business records of individuals in the United States ... we wish to make it very clear we will not use this provision to do so." It sounds like you're saying, well, just trust us.

MS. PERINO: No, I don't see how that -- I think that's exactly what I just said, which is we don't interpret it that way. It's not being used that way, that the Democrats are accusing -- well, I shouldn't say they're accusing; they have concerns. And if they have ways that they can identify that will help clarify it for them that doesn't weaken the act, and still allows us to meet the goal of what the act is supposed to do, we're willing to take a look at it.

Mike --
Q Dana, why is the President talking about FISA today? Does he have very real concerns that the law will be allowed to expire?

MS. PERINO: Sure. Well, there's a few reasons he's talking about it today. Yesterday was the first hearings that Director McConnell attended up on Capitol Hill. There's more hearings tomorrow. In August 2007, the Congress passed legislation, but put a six-month sunset on it. We're already well into that six months, and Congress has a full slate; they also have recesses that are scheduled. And the President has to push the Congress to make sure that they understand that this law has to get taken up and finalized before the end of that six-month period. We'd like it to be done before.

The two basic things that we want in the legislation would be to make the law permanent, and then, secondly, to provide retroactive liability protection for any companies that may have been alleged to have helped the country in any possible way -- again, all alleged. We got the perspective liability protection in August, but we want to make that retroactive. So those are the basic things that we're looking at.
Now, as I said to Kathleen, I mean, if the Congress has areas where they think the law can be strengthened or clarified in a way that doesn't weaken it, we're willing to take a look at it. We don't think that anything else needs to be changed, but we have an open mind.

Section 3 --
Suggested background reading (with good links):

• White House seeks expanded domestic-spying powers (Christian Science Monitor - May 3, 2007).
• Beth Wellington Commentary: "The Protect America Act and Legislation Related to the Domestic Surveillance Program," Published on August 27, 2007. Wellington is an attorney who writes and explains a lot about the issues leading up to the current controversy.
• *Wainstein's written testimony (26 pgs-pdf) before this same committee on September 6, 2007.
  

To be continued.

(Cross-posted at South by Southwest.)