Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) delivered the following opening statement at today’s hearing considering legislative changes to the Foreign Intelligence Surveillance Act:
“The committee meets today in open session to discuss potential legislative changes to the Foreign Intelligence Surveillance Act, or FISA, as well as to hear testimony and question witnesses on the unauthorized disclosure of classified information throughout the summer, the impact of those disclosures, and to allow witnesses to address media reports about intelligence activities.
Let me begin by welcoming our witnesses. They are Director of National Intelligence James Clapper, Director of the National Security Agency General Keith Alexander and Deputy Attorney General, James Cole.
We will have a second panel as well, and I will introduce the witnesses at that panel then, but let me welcome as well Mr. Ben Wittes of the Brookings Institution and Mr. Tim Edgar of the Watson Institute for International Studies at Brown University.
This committee has been conducting oversight over the previously classified intelligence collection conducted under Sections 215 and 702 for several years. We have held numerous hearings dating back to 2007 on FISA authorities, and we have debated these provisions and amendments to them internally for several years.
This committee as well as the Judiciary Committee have reviewed the legality of these programs, been briefed on their operation, and been notified of problems with their implementation. Further, this committee has previously informed all senators of additional classified information regarding these programs available for their review prior to Senate consideration of these measures.
It is my opinion that the surveillance activities conducted under FISA, and other programs operated by the National Security Agency, are lawful, they are effective, and they are conducted under careful oversight within the NSA, by the Department of Justice and the Office of the Director of National Intelligence, and by the FISA Court and the Congress.
I also believe that collecting timely and actionable intelligence is critical to our national security, and that NSA’s surveillance programs have prevented dozens of terrorist attacks against the United States and numerous other countries around the world.
Just this past weekend, we were reminded that the terrorist threat remains. We watched in horror as a small group of determined gunmen mercilessly killed over 60 innocent men, women and children at the Westgate mall in Nairobi, Kenya.
The death and destruction we saw at the Westgate mall in Nairobi could have been at a mall in the United States.
We know that al-Shabaab—the terrorist group that has claimed credit for the attack—has successfully recruited young men from the United States to come to Somalia to train in their jihadist camps, and the group formally merged with al-Qa’ida in February 2012.
We know that al-Shabaab has claimed that some of the attackers it sent to the mall in Nairobi were from the United States and other Western countries, though the U.S. intelligence community hasn’t confirmed this information.
While al-Shabaab has primarily focused its past attacks on targets inside of Somalia, it has demonstrated a willingness and ability to conduct attacks outside of Somalia, such as the 2010 bombing in Uganda that killed 76 people.
It is no coincidence that one of the few specific cases to be declassified by the intelligence community to illustrate how it uses the NSA call records program involves the prosecution of a man for providing material support to al-Shabaab.
According to the intelligence community, in October 2007, NSA provided the FBI with information obtained from querying the call records that are collected under Section 215 of the PATRIOT Act. This information established a connection between a phone known to be used by an extremist overseas with ties to al Qaeda’s East Africa network, and a San Diego-based number.
That tip from NSA’s search of the call records ultimately led to an FBI investigation that resulted in a February 2013 conviction of Basaaly Moalin and three others for conspiring to provide material support to al Shabaab.
So this is just one of many examples of the need for this kind of intelligence collection.
Furthermore, I believe that the leaks of classified programs and the way that those leaks have been portrayed in the media—often inaccurately, or without appropriate context—has led to an unfortunate but very real amount of public skepticism and distrust of the intelligence community, and the National Security Agency in particular, among the American public and internationally.
Since Edward Snowden’s leaks began in June, the Intelligence Committee has conducted several hearings on FISA, on NSA’s intelligence programs, and on the oversight regime in place to review these programs. I have also initiated a review of all intelligence programs—beyond FISA—that have the potential of capturing information about American citizens and other people inside the United States.
Vice Chairman Chambliss and I have begun drafting bipartisan legislation to increase public transparency of FISA programs, strengthen Congressional and FISA Court oversight, and limit FISA authorities to add new protections for Americans’ privacy.
Among other things, we are considering provisions to do the following:
Place limits on the NSA’s phone metadata program to change, but preserve, this program. This program is constitutional and legal, and I invite people listening to review the legal analysis in the recent FISA Court opinion written by Judge Claire Eagan, which is available on the FISA Court’s website.
Our bill would:
- Strictly limit access to the Section 215 phone metadata records,
- Expressly prohibit collection of the content of phone calls, and
- Codify the requirement that analysts must have a “reasonable articulable suspicion” that a phone number is associated with terrorism in order to query the database.
In addition, we’re looking at reducing the length of time that records can be held and queried.
We will also add a requirement that every time the NSA determines that there is a “reasonable articulable suspicion” that a phone number is associated with terrorism, that determination will be sent promptly to the FISA Court so that it can be reviewed.
We will also require additional transparency by requiring annual reports on:
- The number of phone numbers determined to have met the “reasonable articulable suspicion” standard;
- The number of queries conducted;
- The number of times such queries result in FBI investigative leads; and
- The number of probable cause warrants or FISA Court orders obtained because of intelligence gathered from these queries.
Therefore, the whole process, at least in terms of the numbers involved in the use of phone records, would be made public.
For Section 702 of FISA, which authorizes the collection of electronic communications of non-Americans outside the country, we will place in statute a clear mandate that any query using a U.S. person’s name or email address can be done only for an articulable foreign intelligence purpose, and that a record explaining that foreign intelligence purpose will be provided to the FISA Court and to the Congress.
Through our reviews, we have identified a gap in the government’s collection. Today, if the government learns that an authorized, non-U.S. person target of Section 702 collection enters and remains in the United States, the NSA must cease collection on that target. These are known as “roaming incidents.” Of course, this collection is stopped just as the individual may be of greatest concern.
So we have drafted a provision in law to provide a limited period of seven days under which surveillance may continue while the government goes to the FISA Court to seek a traditional, individual probable cause warrant to continue the collection. If a court order is not issued, all collection after the time the target is known to have entered the U.S. must be deleted.
Let me note two other provisions.
One would require the Senate confirmation of the Director of the National Security Agency.
Secondly, although there has been substantial attention paid to FISA, other intelligence collection programs outside of FISA function under the guidelines of Executive Order 12333, which do not mandate the same protections for U.S. person privacy and oversight as does FISA. So I believe we need to ensure that protections governing intelligence collection outside of FISA are improved to adequately protect Americans’ communications in a similar way.
We are mandating in this bill that attorney general guidelines for these programs are updated and then reviewed on an ongoing basis by the attorney general at least every five years.
As I noted earlier, the Intelligence Committee has already begun reviewing all of these intelligence programs, and we will continue to do so this fall.
I know that witnesses may have comments about these proposals, and I will also welcome any additional suggestions you have for increasing transparency, making intelligence programs more effective, and adding to privacy protections and public confidence. I note that the administration’s statement for the record welcomes re-consideration of retention periods for phone records data and on “contact chaining,” otherwise known as the number of “hops,” which I support.
I also invite you to speak about the leaks initiated by Mr. Snowden that are now playing out on a weekly or even daily basis in newspapers around the world, as well as any other claims concerning various intelligence activities.
It is up to you, as the heads of the intelligence community, NSA and Department of Justice, to lay out the case and set the record straight about how intelligence programs are operated under FISA and the care that is taken to abide by the law. It is clear to me that the public has a misperception that must be corrected.
We will hopefully make prudent changes to increase privacy and transparency, but I believe a majority of this committee believes that these programs—215 and 702—are necessary for our nation’s security.”