S. HRG. 113–334 STRENGTHENING PRIVACY RIGHTS AND NA- TIONAL SECURITY: OVERSIGHT OF FISA SUR- VEILLANCE PROGRAMS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION JULY 31, 2013 Serial No. J–113–25 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 88–671 PDF WASHINGTON : 2014 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking Member CHUCK SCHUMER, New York ORRIN G. HATCH, Utah DICK DURBIN, Illinois JEFF SESSIONS, Alabama SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas AL FRANKEN, Minnesota MICHAEL S. LEE, Utah CHRISTOPHER A. COONS, Delaware TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut JEFF FLAKE, Arizona MAZIE HIRONO, Hawaii KRISTINE LUCIUS, Chief Staff Director KOLAN DAVIS, Republican Chief Staff Director (II) C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 prepared statement .......................................................................................... 47 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 WITNESSES Witness List ............................................................................................................. 45 Cole, Hon. James M., Deputy Attorney General, U.S. Department of Justice, Washington, DC [with adjunct testimony from John C. Inglis, Deputy Direc- tor, National Security Agency, Washington, DC; Robert S. Litt, General Counsel, Office of the Director of National Intelligence, Washington, DC; and Sean M. Joyce, Deputy Director, Federal Bureau of Investigation, Washington, DC] .................................................................................................. 5 prepared statement .......................................................................................... 49 Inglis, John C., Deputy Director, National Security Agency, Washington, DC, prepared statement .............................................................................................. 54 Carr, Hon. James G., Senior Judge, U.S. District Court for the Northern District of Ohio, Toledo, Ohio .............................................................................. 34 prepared statement .......................................................................................... 60 Jaffer, Jameel, Deputy Legal Director, American Civil Liberties Union Foun- dation, New York, New York .............................................................................. 36 prepared statement .......................................................................................... 62 Baker, Stewart A., Partner, Steptoe & Johnson LLP, Washington, DC ............. 37 prepared statement .......................................................................................... 85 QUESTIONS Questions submitted by Senator Leahy for James M. Cole ................................. 101 Questions submitted by Senator Leahy for John C. Inglis .................................. 102 Questions submitted by Senator Leahy for Jameel Jaffer ................................... 104 Questions submitted by Senator Grassley for James M. Cole ............................. 105 Questions submitted by Senator Grassley for John C. Inglis .............................. 107 Questions submitted by Senator Grassley for Robert S. Litt ............................... 109 Questions submitted by Senator Grassley for Sean M. Joyce .............................. 111 Questions submitted by Senator Grassley for James G. Carr ............................. 114 Questions submitted by Senator Grassley for Jameel Jaffer ............................... 115 Questions submitted by Senator Grassley for Stewart Baker ............................. 118 QUESTIONS AND ANSWERS Responses of James M. Cole to questions submitted by Senators Leahy and Grassley [NOTE: Some responses of James M. Cole are classified and therefore not printed as a part of this hearing.] ............................................... 121 Responses of John C. Inglis to questions submitted by Senators Leahy and Grassley [NOTE: The responses of John C. Inglis are classified and there- fore not printed as a part of this hearing.] ........................................................ 125 Responses of Robert S. Litt to questions submitted by Senator Grassley .......... 126 Responses of Sean M. Joyce to questions submitted by Senator Grassley ......... 127 Responses of James G. Carr to questions submitted by Senator Grassley ......... 131 Responses of Jameel Jaffer to questions submitted by Senators Leahy and Grassley ................................................................................................................ 137 Responses of Stewart Baker to questions submitted by Senator Grassley ......... 149 (III) IV Page MISCELLANEOUS SUBMISSIONS FOR THE RECORD Op Ed, ‘‘A Better Secret Court’’, New York Times, James G. Carr, July 22, 2013 ................................................................................................................. 159 Walton, Reggie B., Presiding Judge, U.S. Foreign Intelligence Surveillance Court, Washington, DC, July 29, 2013, letter ................................................... 162 Group Coalition letter, July 30, 2013 ..................................................................... 192 Joint transparency letter, July 16, 2013 ................................................................ 196 Zwillinger, Marc J., Founder, ZwillGen PLLC, statement ................................... 199 The Constitution Project, Virginia E. Sloan, President, July 30, 2013, letter .... 206 U.S. Department of Justice, February 2, 2011, letter .......................................... 208 U.S. Department of Justice, December 14, 2009, letter ....................................... 210 STRENGTHENING PRIVACY RIGHTS AND NA- TIONAL SECURITY: OVERSIGHT OF FISA SURVEILLANCE PROGRAMS WEDNESDAY, JULY 31, 2013 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 9 a.m., in Room SH– 216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feinstein, Durbin, Whitehouse, Klobuchar, Franken, Blumenthal, Grassley, Sessions, Cornyn, Lee, and Flake. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. Good morning. Today, the Judiciary Com- mittee will scrutinize Government surveillance programs conducted under the Foreign Intelligence Surveillance Act, or FISA. In the years since September 11th, Congress has repeatedly expanded the scope of FISA and has given the Government sweeping new powers to collect information on law-abiding Americans, and we must care- fully consider now whether those laws may have gone too far. Last month, many Americans learned for the first time that one of these authorities—Section 215 of the USA PATRIOT Act—has for years been secretly interpreted—secretly interpreted—to au- thorize the collection of Americans’ phone records on an unprece- dented scale. Information was also leaked about Section 702 of FISA, which authorizes the NSA to collect the communications of foreigners overseas. Now, first, let me make it very clear. I do not condone the way these and other highly classified programs were disclosed, and I am concerned about the potential damage to our intelligence-gathering capabilities and national security. It is appropriate to hold people accountable for allowing such a massive leak to occur. We need to examine how to prevent this type of breach in the future. In the wake of these leaks, the President said that this is an op- portunity to have an open and thoughtful debate about these issues. And I welcome that statement because this is a debate that several of us on this Committee in both parties have been trying to have for years. Like so many others, I will get the classified briefings, but then, of course, you cannot talk about them. There are a lot of these things that should be and can be discussed. And (1) 2 if we are going to have the debate that the President called for, the executive branch has to be a full partner. We need straightforward answers, and I am concerned that we are not getting them. Just recently, the Director of National Intelligence acknowledged that he provided false testimony about the NSA surveillance pro- grams during a Senate hearing in March, and his office had to re- move a fact sheet from its website after concerns were raised about its accuracy. And I appreciate that it is difficult to talk about clas- sified programs in public settings, but the American people expect and deserve honest answers. It also has been far too difficult to get a straight answer about the effectiveness of the Section 215 phone records program. Wheth- er this program is a critical national security tool is a key question for Congress as we consider possible changes to the law. Some sup- porters of this program have repeatedly conflated the efficacy of the Section 215 bulk metadata collection program with that of Section 702 of FISA, even though they are entirely different.