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In Re All Matters Submitted to the Foreign Intelligence Surveillance

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In Re All Matters Submitted to the Foreign Intelligence Surveillance UNITED STATES FOREIGN INTELLIGENCE COURT OF REVIEW Hearing on Docket No. 02-001 September 9, 2002 9:00 a.m. PRESIDING JUDGES: THE HONORABLE RALPH B. GUY, JR. United States Court of Appeals for the Sixth Circuit 200 East Liberty Street Room 226 Ann Arbor, Michigan 48104 THE HONORABLE EDWARD LEAVY United States Court of Appeals for the Ninth Circuit 232 Southwest Yamhill Street Portland, Oregon 97204 THE HONORABLE LAURENCE H. SILBERMAN United States Court of Appeals for the District of Columbia Circuit 3400 United States Courthouse 333 Constitution Avenue, N.W. Washington D.C. 20001-2866 APPEARANCES: LARRY D. THOMPSON Deputy Attorney General Department of Justice THEODORE B. OLSON Solicitor General Department of Justice DAVID S. KRIS Associate Deputy Attorney General Department of Justice MICHAEL R. DREEBEN Deputy Solicitor General Department of Justice JAMES A. FELDMAN Assistant to the Solicitor General Department of Justice JAMES A. BAKER Counsel for Intelligence Policy Office of Intelligence Policy and Review Department of Justice MARGARET A. SKELLY-NOLEN Deputy Counsel for Intelligence Operations Office of Intelligence Policy and Review Department of Justice JOHN C. YOO Deputy Assistant Attorney General Office of Legal Counsel Department of Justice JACK GEISE Principal Associate Director for Policy Office of Enforcement Operations Criminal Division Department of Justice JONATHAN MARCUS Attorney Appellate Section Criminal Division Department of Justice MARION E. "SPIKE" BOWMAN Deputy General Counsel Federal Bureau of Investigation DAVID S. ADDINGTON Counsel to the Vice President Office of the Vice President SANTA THERESA ZIZZO Official Court Reporter U.S. District Court Room 4800C 333 Constitution Avenue, N.W. Washington, D.C. 20001 Computer-Aided Transcription of Stenographic Notes Pages 1-104 [Page 3] 1 P R O C E E D I N G S 2 JUDGE GUY. Good morning, everyone, and welcome to 3 the first ever meeting of the Foreign Intelligence 4 Surveillance Court of Review. Unlike a normal appellate 5 procedure where we keep people to rigid time limits and 6 whatnot, we're prepared to spend as much time today as is 7 necessary for you to fully develop the presentation that you 8 want to make to us and for us to ask the questions that we 9 need to ask of you. So within those limitations, I think it 10 might be helpful to us if each of you would identify 11 yourselves and then we could proceed. 12 SOLICITOR GENERAL OLSON: Shall I start with me? 13 JUDGE GUY: I think so. 14 SOLICITOR GENERAL OLSON: Theodore Olson. Very 15 nice to have you here. 16 MR. KRIS: I'm David Kris from the Office of the 17 Deputy Attorney General. 18 MR. BAKER: Jim Baker from the office of 19 Intelligence Policy and Review. 20 MS. SKELLY-NOLEN: Peggy Skelly-Nolen from the 21 Office of Intelligence Policy and Review. 22 MR. THOMPSON: I'm Larry Thompson. I'm the Deputy 23 Attorney General. 24 MR. DAVID ADDINGTON: I'm David Addington. Counsel 25 to the Vice President. [Page 4] 1 MR. YOO: John Yoo from the Office of Legal 2 Counsel. 3 MR. MARCUS: Jonathan Marcus from the Appellate 4 Section, Criminal Division. 5 MR. GEISE: Jack Geise, Office of Enforcement 6 Operations, Criminal Division. 7 MR. BOWMAN: Spike Bowman, Deputy General Counsel. 8 MR. FELDMAN: James Feldman from the Office of the 9 Solicitor General. 10 MR. DREEBEN: Michael Dreeben, Deputy Solicitor 11 General. 12 JUDGE GUY: Thank you very much. Mr. Olson, are 13 you going to be the lead speaker for this group? 14 SOLICITOR GENERAL OLSON: I am, Your Honor. Thank 15 you very much. We have the other people here in this room 16 because there are questions that the Court may have that I 17 may not be able to answer, or areas in which additional 18 details or information concerning the procedures that the 19 Government operates under with respect to FISA may be more 20 fully explained by people who have actually done and been in 21 the process for a period of time. We're happy to proceed 22 under whatever procedure you want but it's certainly fine 23 with us if the members of the Court want to ask us any one of 24 us questions with respect to how this works. We want to make 25 sure that we address every part of it. [Page 5] 1 I have not prepared anything extensive to say at 2 the beginning because I understand the Court is familiar with 3 what the issues are and has spent time with the briefs and 4 the statutes and so forth. I will say this, we're here today 5 because the Foreign Intelligence Surveillance Court's May 6 17th Order as subsequently incorporated into and implemented 7 in connection with its July 19th, 2002 decision denying a 8 specific FISA application in Case Number 02-662 has 9 perpetuated a serious and increasingly destructive barrier 10 which has hamstrung the President and his subordinates in 11 utilizing the Foreign Intelligence Surveillance Act to 12 accomplish the vital and central purpose for which it was 13 created; that is to say, the protection of the United States 14 and its citizens from attack and from international 15 terrorism. 16 Unfortunately and sadly, two days from now the 17 entire nation will pause to reflect on how bad things can be 18 if our Government is not prepared with every lawful tool 19 available to protect our country and our people from the 20 immeasurable toll that international terrorism can inflict, 21 and to remember the 3000 lives that were taken from us that 22 day because the resources that we have been given to protect 23 us from such acts either did not work or were not being used 24 effectively. 25 To prevent this sort of thing from happening again, [Page 6] 1 which is why FISA was enacted in the first place, our 2 intelligence agencies and law enforcement personnel, the 3 President's principal agencies in the war against terrorism, 4 must be able to work together efficiently and effectively and 5 cooperatively. Sadly, that is not the condition in which 6 they operate today. 7 And the Foreign Intelligence Surveillance Court's 8 Order of May 17th is the most formidable, the most 9 inexplicable and the most easily removable obstacle to 10 achieving the goal for effective and efficient gathering of 11 intelligence to protect the people of this country and this 12 country itself from international terrorism. 13 The Foreign Intelligence Surveillance Act was 14 enacted for the central purpose of protecting against attacks 15 from foreign powers and terrorism. Its central purpose is to 16 enable the President to acquire foreign intelligence 17 information. It defines in the first section of the Act 18 itself foreign intelligence information and the terms of that 19 simple straightforward goal in language which is equally 20 simple, information from foreign agents or agents of foreign 21 powers which is necessary, and I'm speaking now in terms of 22 U.S. persons as opposed to foreign Governments themselves, 23 which is necessary to the ability of the United States to 24 protect against attack, hostile acts, terrorism from agents 25 of foreign powers. [Page 7] 1 The definition of foreign intelligence right there 2 in Section 1801 of the Act is defined in terms of getting 3 information necessary to protect against, and I'll speak in 4 terms of international terrorism, but I mean also those other 5 things that are specified in the Act. 6 The Act does not purport or attempt in any way to 7 constrain the methods by which the Executive will then use 8 that information to protect the citizens of this country and 9 the nation itself. It doesn't categorize different types of 10 uses. It says that FISA may be used to obtain information 11 which may be necessary to protect the people, but it doesn't 12 say or describe or limit the circumstances under which that 13 information will be used by the President or his subordinates 14 to accomplish those statutory objectives which are also 15 fundamental objectives for the President and his subordinates 16 under the Constitution, the protection of this country, its 17 sovereignty, its people from foreign attack, protect its 18 borders and faithfully to execute the laws. Those are all 19 part of the President's central mission. 20 FISA was enacted for the purpose of equipping the 21 President in a lawful way to use lawful means to accomplish 22 those constitutional objectives. 23 There are many many ways in which the information 24 that may be gathered under FISA may be used. The President 25 may use that, and his subordinates, when I refer to the [Page 8] 1 President I'm referring to the President and his subordinates 2 in the Justice Department or in the diplomatic community or 3 in the so-called intelligence community, they're all working 4 for the President to fulfill the President's objectives. 5 The President may use that information in 6 connection with communications with foreign Governments, to 7 elicit cooperation from other countries, to prevent people 8 who may be terrorists from moving place to place. The 9 President may use that information to install greater 10 security, to improve the nation's defenses, to put law 11 enforcement people in places where they may interdict someone 12 about to commit a crime. That information may be used to put 13 more guards in places to make them safer, to erect barriers 14 to protect public buildings, to put people in airports to 15 prevent airplanes from being hijacked.
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