release of fisa kort opinions and the fisa court released an opinion about 2002 and the fisa quarter review released an opinion in 2003 about the same amendment. in 2008 the fisa quarter review released another opinion about the protect america act and so there is precedent for the release of legal reasoning in these opinions and with the redaction of legitimate sources and methodis and think everybody is in agreement that some information in these opinions is likely to be sensitive and the government has legitimate interest in keeping these secret. legal reasoning. >> professor, let me close with this observation. we've been told that we can't even tell how many people are

being subjected to this process located in the united states and we don't know and they can't tell us, and i think -- i think we could get a little bit closer and there could be -- this kind of vagueness that creates and those of us in the congress suspicions that are negative rather than suspicions in the positive. we don't know and we can't be told basic information like this. >> the gentleman's time hasec piered. >> do you mind if he responds. >> i think when you create authorities for the government and you need to create

counterbalance and in 2008 it went quite far with noe new surveillance authorities. >> miss chu. >> thank you, mr. chair. you mentioned the new york times article that they had intercepted private phone calls and e-mails of americans. you stated the aclu had obtained records that showed that agencies conducting the surveillance from faa had u.s. persons communications. can you talk more specifically on the kind of information the aclu obtained? >> sure. thank you for the question. >> the aclu freedom of information act to find out how the statute had been immremed and all of the records are now we've made them available on our website, but the records show, among other things, that the government has repeatedly

violated minimization and targeting rules. and at least some of those violations resulted in the collection of americans' communications. there have also been violations of the targeting restriction against directing surveillance from americans. in some cases, americans have been targeted inappropriately and unlawfully. there was also at least one occasion in which the fisa court apparently got so frustrated with the executives' repeated violations that the court ordered the justice department to provide reports every 90 days to explain compliance issues, and on the one hand i think that's the sign that the fisa court sometimes does have the authority to do what they want them to do, on the other hand it raises real concerns about whether we can trust the executive branch to police these limitations, and i think that we have at least enough information now to warrant congress' asking

more questions and to warrant pausing before reauth rising the statute in the current form. do you believe there's any legislative remedy to this, to address the fears that americans have that they're being subjected to warrantless surveillance? >> absolutely. i think that when this act was first proposed by the bush administration, the many problem that the bush administration identified was that they believed that they couldn't wiretap foreign to foreign communications so communications between non-u.s. persons without getting a warren because some of those were running throughout the united states and nobody is making the argument that we have to revert to a world where they have to make those communications. what we're talking about is something relatively narrow here and it's a fix to prevent the government from engaging in suspicionless dragnet surveillance and there are a variety of ways in which

congress can make that fix. >> mr. rothenberg, how rigorous is the certification process of the attorney general and the director of national intelligence regarding the authorization of a surveillance program under title 7 of fisa? has the fisa court ever rejected an application under title 7? >> well, that's a very good question, congresswoman, and i couldn't answer it because the information is not made available to the public. there are statutory provisions as to the contents of the report that are made available to your committee and here's the information made available to the public. it's a two-page letter and sent at the end of april every year from the attorney general to the speaker and to the president of the senate and this is what we use about the issue of fisa authority in recommending that more information be made available to the public about the use of fisa, we were suggesting's part that would

make it possible to evaluate the adequacy of the oversight techniques that may be working, by the way. i'm not suggesting that there is a competency or systemic problem here, but you see, it is a small number of people that have access to this information and takes time to evaluate. in circumstances, the faa allows the government to conduct electronic surveillance for seven days without making an application to the fisa court. what's the standard for the circumstances and who gets to decide when that standard applies? ? that is set out in statute and that's consistent with other provisions in similar surveillance authorities and there will be circumstances where the government needs to undertake a search. it believes that it doesn't have time to obtain a court authority. it can go forward with the search and it's quite important that the statute requires the government to come back later and make the application that's

required and if you can't get approval of the application then activity is suspended and again, the requirements are set out in statute. >> okay. thank you, i yield back. >> the gentleman from colorado, mr. polis. >> thank you, mr. chairman. my question is for mr. jafer. your concern is the administration conducting bulk collection of american communications. i was hoping you could explain that term and see if this is occurring? and they explained that one and meaning non-individualized collection. in that kind of situation the government doesn't go to the court ask say we want to target this specific person. instead they say we want to target people overseas, generally, and we of the to target everybody in this particular city and we want to

target everybody in this particular country. >> to be clear, they can be every e-mail from karachi or something like that, hypothetically or mexico or -- right, absolutely. and do you have any evidence that this is occurring? >> well, you know, this is something that came up in clapper versus amnesty and the case that we're litigating right now involving this act and the administration is asking this question and the obama administration issing can this question by the southern district and by the appeals court and the administration had an opportunity to say that this is not how it was being used and they declined to take this opportunity. >> presumably, if you use in bulk collection there would be enormous amounts of resulting data. or is there a safeguard in place for personal data unrelated to the threat from that data? >> we have a statute and the

statute does lay out in broad terms what safeguards have to be put in place and our concern is that those safeguards are too weak. one of the concerns is the definition of foreign intelligence information is so broad that minimization applies only to a sub-category of the most sensitive information and the result is that americans communications about things like foreign affairs can be disseminated and analyzed and retained forever without any other safeguard and that's a concern not only from a privacy stand point, but from a first amendment standpoint. this kind of surveillance has a chilling effect on activity that's not just protected and it's necessary toward a democracy. >> many proponents also say that any issues that arise can be dealt with by federal judges who actually approve the faa applications. i wanted to question you about how effective it has been. how effective the role of

federal uj jes have been during the faa and are there specific recommend daeggs fo s the faa >> one is the fisa court itself and has about rothenberg has pointed out, part of the problem is we don't know what's going on in the fisa court and we think it's important that some of the fisa court's opinions relateing to the faa be released at least in redacted form, but then, and this goes to something that chairman sensenbrenner said at the beginning. it's true that no other federal court has weighed in on the constitutionality of the faa and no court has found any provision of the faa to be unconstitutional and that's because the administration and first the bush administration and the obama administration has had the judicial review. the only people who can challenge which surveillance are people who can show their own

communications have been monitored because that's not information that the administration's released. so you're in this situation where this extremely far-reaching surveillance statute, definitely the most far reaching statute ever enacted by congress is essentially beyond the reach of the court. >> it sounds like one of the issues is there's insufficient standing to bring it to fed cal report and one legislative improvement might be to find that standing in such a way that you don't know about yourself so there might be others and some that therefore stand in the federal courts issue identified? >> i think that would be an improvement to the law. that said, we believe we have standing in the case that we are litigating before the supreme court and the second circuit agreed with us, but you believe that there's still this issue with regard to standing and as you said, it's something by the very nature people don't know

about themselves would be the ones who would have to object. thank you, and i yield back. >> the gentleman from georgia, mr. johnson. >> yes. thank you, mr. chairman. with respect to the director of national intelligence, what is the relationship between that office and the other -- i believe it's, what? 26 intelligence-gathering agencies within the u.s. government? what is the relationship, mr. weinstein? >> well the -- congressman johnson, the office of the director of national intelligence was established to be the quote, unquote, quarterback of the intelligence community. so the dni, the director of national intelligence sets the requirements and collection requirements and provides oversight in a number of ways

and in this particular process the dni plays a critical role because as you know the director of national intelligence will have to jointly certify to these checks and certify that they'll be done legally. >> certainly. it is the quarterback for the intelligence agencies for the federal government? how many are there? it's about 26 of them? >> 16, right? i'm forgetting, but i want to say 16. >> 16. okay, that might be good, but now the processes -- it's 16? >> i'm getting nods from the audience. it's 16. >> the process that the intelligence community uses or the tools that are used to conduct surveillance are products from defense contractors and intelligence agency contractors, is that

correct? >> well, the technology is by contractors as well as people in the intelligence community, yes. ? and i suppose there are some fire walls between the various intelligence agency, but perhaps not -- what do you think about that? fire walls for the conveying of information? >> yes. actually, one of the major efforts since 9/11 has been to take down the stovepipes and the walls between the different agencies and there are for sensitive information there are limitations on dissemination, et cetera, but the focus of the dni has been to try to make sure that everybody gets the information they need to do their job. >> certainly. tell me this now. does the intelligence community

have the technological capacity to identify americans based upon the content of their electronic communications? that's actually a very good question, and obviously i can't get into classified techniques that they use to -- and they do have that capability, would you agree? >> my understanding is they have the capability to an extent and keep in mind when you try to identify, and if you try to figure out if the person is american or not, you might look at the phone number. you might listen to content to determine of whether they're talking about being overseas or not. there's not sort of one set of -- that definitively identifies any communication as being overseas? >> yea. i have a hard time getting a good answer for that question. tell me, what i would assume

that we do have the ability to identify americans based upon the content of their electronic communications. i would assume that you would be able to do that, but i can't get anyone to admit that we do have that capability, not that we do it, but we have the capability and that that causes me a lot of suspicion, and i'll tell you about the chamber leaks problem that came out a couple of years ago with a couple of defense contractors were making a proposal to the and the u.s. chamber of commerce to use the information fwleend processes to

spy on and disrupt or destroy opponents of the u.s. chamber of commerce. and i'm concerned about the recent "usa today" situation where reporters reporting on a defense contractor engaged in propaganda actions and by persons in that company, in that defense company, subcontractor. mr. jaffer, how would you add to this? >> mr. johnson, i think you're absolutely right to be worried about the way that these powers will be used. if you look at the way that similar powers were used before fisa was enacted and there were all kinds of abuses and members of congress that were wiretapped and journalists who were

wiretapped and supreme court justices who were wiretapped and there was a member of congress who nsa sought to wiretap in 2006 and 2007 and in the same "new york times" story, and history shows us that these kinds of broad surveillance powers will be abused and that's part of the reason why you need to set up limits now to make sure that doesn't happen. >> the gentleman's time has expired and the gentleman from tennessee, mr. corn. >> thank you, sir. i want to follow up with an article. i must have missed that one. they had been listening in on the conversations of judges? >> the church committee report goes into some detail about that, but that was back in '70s. >> that's right. that's right. >> we don't have any knowledge of any current? >> no 40 years is a long time.

the current evidence is of wiretapping a member of congress and all i know about that is from the eric lichtblow story that several of us have referred to. >> who was the member? >> i don't know. >> what was -- what was revealed about the purpose of which they weir tapped the individual or what they learned or was anything revealed? >> all i know is from the story. the story report as it a member of congress was traveling overseas and somewhere in the middle east and the nsa sought the authority to wiretap the conversations of the member and i don't know if they got that authority and they're three or four sentences in the new york times story. how much is available for us to know about the dealings of the fisa court as far as applications denied, basis for denial. is any of that available? almost nothing is available. the only thing that's available

is this raw number. a number of applications filed with the fisa court and a number of applications, granted or denied and even that number doesn't break down between traditional fisa and the fisa amendments act and you don't know how many programs of surveillance have been authorized. you don't know how many have been approved by the court. you don't know how broad the programs have been and you don't know how many americans have been wiretapped as a result and you don't know what's been done and there are all sorts of crucial facts that have been withhell at least from the public and on top of that there is this question of the legal authority. so this is a complicated statute and there are legitimate questions about how it ought to be interpreted. we don't know how the obama administration is interpreting this statute because it hasn't disclosed even in redacted form the office of legal council

memos and we don't know how the fisa court has inch prettiterpr statute baz we don't have the fisa court opinions. there was a process put in place a couple of years ago by the obama administration to declassify other fisa court opinions and there was a recognition on the part of the obama administration at that time that more of the opinions needed to be released and that the public needed to know about how that court was interpreting the law. two or three years later the result of that process is the release of no fisa court opinions. we still don't have anything out of that process and it is not clear why nothing has come out of that process. it might be something that the committee could consider looking into. >> thank you, sir. >> i yield back the remainder of my time. >> before recognizing the gentleman from south carolina, i notice that the gentlewoman from texas, miss jackson-lee was in the room and stepped out. i will recognize her following

the conclusion the gentleman of south carolina's questioning and i intend to be the last questioner and i would ask to have her brought back in the room. >> thank you, mr. chairman. >> mr. jaffer, you made reference to the clapper case. i don't have my notes in front of me. what was the brakedown of on bank? >> it was 6-6, in total eight judges agree that our plaintiffs had standing and six disagreed. >> it threw me off when you said the second circuit agreed with you, and i thought it was 6-6 and some people claim the victory and some people don't. if you prevailed the three-judge panel and you are entitled to have 6-6. >> it was three on the panel and

the full court decided to not re-hear the case and there were eight judges who agreed with us and two of them didn't participate. >> let me see if you and i can agree on something? does it apply to foreign targets and foreign lands? >> i don't think that's the question. >> no, no, no. that's my question. i promise you it's the right question because that's my question. does it apply? >> i don't think it does. >> when you say you don't think it does -- >> well in the circumstance of the statute, i don't think it does. >> right. >> we certainly haven't made the argument that it does. >> does the fourth amendment, and i'm not talking about the statute. does the fourth amendment apply to foreign nationals in foreign lands? >> it does not. >> does the second amend am apply? >> i don't know the first -- >> no. the eighth? >> i think it would depend on the circumstance. >> women's suffrage.

does that apply? >> that's my point. i don't. we're not talking about surveillance of foreign nationals and foreign lands, right? >> you don't think -- >> that's my second point. if you'll let me get to it -- if you'll let me get to it. professor roddenberg was quoted and it would not be the first time a person was quoted incorrectly. there was a constitutional problem with monitoring foreign targets and i'm trying to understand what that con tushl problem might be of foreign targets in foreign land or the third alternative is that you were quoted incorrectly. >> congressman, i'm not quite sure of the context, but i'm sure the concern i have was the constitutional problem was in the targeting of a foreign target in a foreign land. you would also acquire the communication of the u.s.

person. >> which leads to my next question. in a domestic setting, title three, where there is an unintentional interceptee, does that interceptee have standing? >> probably not. there certainly wouldn't be a suppression motion if the person was not the target, however, and this goes to my recommendation before the committee and you would have a great deal of information about the investigation that were not incriminating and -- >> and how do we handle the unintentional interception of conversations with non-targets in the title three arena? >> you do it through the minimization and through the reporting of communications. >> but they don't have standing. if it's an american citizen who is intercepted unintentionally on a domestic wire, they don't have standing to challenge. >> i take the question. it's an interesting point, but you see, of course, if people in the united states became concerned that their government

was engaging in routine surveillance of the private communications they may well take steps to pry to protect themselves. i'm just asking what the law is. >> i think you're asking a standing question and your answer is no? they don't have standing? >> i'm not sure that the answer is no. >> has any court held that they have standing? >> i don't think the court has answered. the second court where they found that there was standing based on the possibility of injury and the steps that the plaintiffs have taken to try to protect their communications, i think in fact, they did find that. >> i thought in the white house case they found international interceptees do not have standi standing. the parties can't have that interception. the problem is the government engaging in the surveillance activity with neither you more me knowing if we were targets.

>> which mean, mr. weinstein, you've been there before. we can't make legislation by episode or anecdote. is the government routinely targeting american citizens in foreign lan and who protections are in place? the statute says if the government will target a u.s. person in a foreign land, based on the provision in the faa, for the first time the government has to be in fisa court and get an individualized fisa order. you can't reverse target which means you can't target somebody overseas with the purpose of trying to get the person inside the united states. >> the gentleman's time has expired. the chair, in the absence of the gentlewoman from texas, miss jackson lee will recognize as the last question. mr. weinstein, i think we've established that the arc mend am has not applied to foreign

targets overseas. do you agree with that? ? okay. what's the difference between probable cause is it applies to title one of fieza and the require withments of title 7 of the faa? >> well, under regular fisa, traditional fisa, you to establish probable cause that the target is a foreign power or an agent of a foreign power and you have to lay the evidence of that out and the fisa court has to find probable cause of that showing which is different from the probable cause that you have to show in title 3. >> okay. that was my next question and you said that it is different. professor roddenberg, i think as a goal we want to have more transparency in all of the laws that we have except when you're dealing with national security if we have too much transparen e transparency, and people wish to do our country and its citizens

harm and end up being able to connect the dots and be able to get away with the terrorist strike and this is something that this committee has had to wrestle with, really since fisa and more acutely since 9/11. now how are we able to make any sense if the law is amended to require the governments to release the people are are incidentally monitored without identifying individuals that you don't want identified? >> i think the statistical reporting based on the current statute in section 707, you do get numbers as to how many orders were under 702 and 703. none of that information would jeopardize any activity, and i think mr.