OVERSIGHT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION WEDNESDAY, SEPTEMBER 18, 2019 Serial No. 116–47 Printed for the use of the Committee on the Judiciary ( Available via: http://judiciary.house.gov U.S. GOVERNMENT PUBLISHING OFFICE 44–884 WASHINGTON : 2021 VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 C:\HSE JACKETS\44884.TXT FRAN JDEMLAPTOP22 with LOCATORS COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chair MARY GAY SCANLON, Pennsylvania, Vice-Chair ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking Member SHEILA JACKSON LEE, Texas F. JAMES SENSENBRENNER, JR., STEVE COHEN, Tennessee Wisconsin HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York MARTHA ROBY, Alabama DAVID N. CICILLINE, Rhode Island MATT GAETZ, Florida ERIC SWALWELL, California MIKE JOHNSON, Louisiana TED LIEU, California ANDY BIGGS, Arizona JAMIE RASKIN, Maryland TOM MCCLINTOCK, California PRAMILA JAYAPAL, Washington DEBBIE LESKO, Arizona VAL BUTLER DEMINGS, Florida GUY RESCHENTHALER, Pennsylvania J. LUIS CORREA, California BEN CLINE, Virginia SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff Director & Chief of Staff BRENDAN BELAIR, Minority Staff Director (II) VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 C:\HSE JACKETS\44884.TXT FRAN JDEMLAPTOP22 with LOCATORS CONTENTS WEDNESDAY, SEPTEMBER 18, 2019 Page OPENING STATEMENTS The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ............ 1 The Honorable Doug Collins, Ranking Member, Committee on the Judiciary .. 3 WITNESS Brad Wiegmann, Deputy Assistant Attorney General, Department of Justice, National Security Division .................................................................................. 6 Oral Testimony ..................................................................................................... 6 Michael J. Orlando, Deputy Assistant Director, Federal Bureau of Investiga- tion, Counterterrorism Division .......................................................................... 7 Oral Testimony ..................................................................................................... 7 Susan Morgan, National Security Agency ............................................................. 9 Oral Testimony ..................................................................................................... 9 Joint Written Statement of Brad Wiegmann, Michael J. Orlando, and Susan Morgan .................................................................................................................. 11 APPENDIX A Letter from the ACLU to Chairman Nadler and Ranking Member Collins submitted by the Honorable Chairman Jerrold Nadler .................................... 52 Questions for the Record submitted by the Honorable Ted Lieu ........................ 59 Response to question for the Record from Brad Wiegmann ................................. 60 Questions for the Record submitted by the Honorable Sylvia Garcia ................. 62 (III) VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 C:\HSE JACKETS\44884.TXT FRAN JDEMLAPTOP22 with LOCATORS VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 C:\HSE JACKETS\44884.TXT FRAN JDEMLAPTOP22 with LOCATORS OVERSIGHT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Wednesday, September 18, 2019 HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY Washington, DC The Committee met, pursuant to call, at 10:13 a.m., in Room 2141, Rayburn House Office Building, Hon. Jerrold Nadler [chair- man of the committee] presiding. Present: Representatives Nadler, Lofgren, Jackson Lee, Cohen, Johnson of Georgia, Cicilline, Lieu, Raskin, Jayapal, Demings, Correa, Scanlon, Garcia, Stanton, Escobar, Collins, Chabot, Goh- mert, Jordan, Buck, Ratcliffe, Roby, Gaetz, Johnson of Louisiana, Biggs, Lesko, Reschenthaler, Cline, Armstrong, and Steube. Staff Present: Aaron Hiller, Deputy Chief Counsel; Arya Hari- haran, Deputy Chief Oversight Counsel; David Greengrass, Senior Counsel; John Doty, Senior Adviser; Madeline Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach Adviser; Susan Jensen, Parliamentarian/Senior Counsel; Sarah Istel, Over- sight Counsel; Julian Gerson, Staff Assistant; Priyanka Mara, Pro- fessional Staff Member; Sophie Brill, Counsel; Brendan Belair, Mi- nority Staff Director; Bobby Parmiter, Minority Deputy Staff Direc- tor/Chief Counsel; Jon Ferro, Minority Parliamentarian/General Counsel; Ryan Breitenbach, Minority Chief Counsel, National Secu- rity; and Erica Barker, Minority Chief Legislative Clerk. Chairman NADLER. The House Committee on the Judiciary will come to order. Without objection, the chair is authorized to declare recesses of the Committee at any time. We welcome everyone to this morning’s hearing on Oversight of the Foreign Intelligence Surveillance Act. I will now recognize my- self for an opening statement. The Judiciary Committee is holding today’s hearing to carry out one of its most important tasks, to ensure that the tools used by our Government to keep us safe are consistent with our values and with the freedoms guaranteed by the Constitution. This Committee has long exercised its responsibility to shape the legal framework under which intelligence and law enforcement agencies investigate threats and collect evidence of crimes. Although we do not conduct day-to-day oversight of intelligence agencies, it falls to us in hearings like this to conduct a broad re- (1) VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 C:\HSE JACKETS\44884.TXT FRAN JDEMLAPTOP22 with LOCATORS 2 view of how our Government exercises its legal authorities and whether that conduct accords with our values as Americans. At the outset, I want to acknowledge two things. First, the men and women in our Nation’s law enforcement and intelligence com- munities, including our witnesses today, work tirelessly to keep us safe from attacks and other threats by hostile adversaries. Those efforts include working rigorously to comply with our laws. Second, there are countless Americans in the privacy and civil liberties communities who are dedicated to keeping us safe from other kinds of threats—threats to privacy, freedom of speech, and due process—that take hold when the Government’s surveillance authorities extend too far. Those who criticize and question the laws we will be discussing today are part of this Nation’s proud and robust tradition of hold- ing our Government to account, questioning the Government’s rea- sons for its actions and jealously safeguarding the freedoms guar- anteed to us by the Constitution. It is in that spirit that I hope to have a serious and substantive discussion today about the Foreign Intelligence Surveillance Act, or FISA, and the provisions that are set to expire at the end of this year. In response to substantial concerns that the intelligence commu- nity had exceeded its authority under FISA, Congress, in 2015, en- acted the USA FREEDOM Act, which contained several important reforms. Notably, we put an end to the NSA’s program under which it collected the phone records of millions of law-abiding Americans using a highly strained interpretation of a provision in the 2001 USA PATRIOT Act. We reformed that provision, known as section 215, to prohibit both the collection of phone records and other types of records. In- stead, to collect certain kinds of phone records, we required the NSA to apply to the FISA court for an order based on individual- ized facts and on a specific selection term. We also created an important mechanism to ensure that the FISA court hears both sides of the legal arguments in cases pre- senting novel and important issues. And we enacted several meas- ures to enhance transparency in the FISA court and in other types of reporting. At the end of this year, section 215 and two other FISA authori- ties, known as the ‘‘roving wiretap provision’’ and the ‘‘lone wolf provision,’’ are set to expire unless they are reauthorized by Con- gress. Because these three provisions give the Government power- ful and controversial intelligence authorities, Congress attached them to sunsetting provisions when they were first enacted and has reauthorized them for limited periods of time ever since. These periodic reauthorizations provide this Committee and other committees an important opportunity to review how these laws are used and to conduct the kind of oversight that we are doing here today. Last month, however, former Director of National Intelligence Daniel Coats sent a letter to the leadership of this Committee and other committees in the House and Senate asking that we reauthorize all three provisions permanently. At the same time, former Director Coats’ letter acknowledged that the NSA has dismantled the call records program that it had been conducting under section 215, as amended by the USA FREE- VerDate Sep 11 2014 09:35 Jul 16, 2021 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 C:\HSE JACKETS\44884.TXT