Opening Statement of the Honorable John Conyers, Jr. for the Hearing on the Administration’s Use of FISA Authority Before the Committee on the Judiciary

Opening Statements

Statement of the Honorable John Conyers, Jr. for the
Hearing on the Administration’s Use of FISA Authority
Before the Committee on the Judiciary
Wednesday, July 17, 2013, at 10:00 a.m.
2141 Rayburn House Office Building

       The House Judiciary is the committee of primary jurisdiction for both of the authorities we are here to discuss today—Section 215 of the USA PATRIOT Act, and Section 702 of the FISA Amendments Act.

       Over the past decade—under the leadership of four chairmen with diverse political views—the members of this committee have vigorously debated the proper balance between our safety and our constitutional right to privacy. 

       We never—at any point during this debate—approved the type of unchecked, sweeping surveillance of United States citizens employed by our government in the name of fighting the war on terrorism.

       This is not and should not be a partisan issue.  Accordingly, I intend to work with Chairman Goodlatte to increase our oversight of these programs, and to increase the accountability of the government to the American people.

       As an initial step, we should work to make more information about government surveillance available to the public.

       Further, if the government cannot provide us with a clear explanation for its actions, I will urge President Obama to terminate these programs immediately.

       With the time I have left in my opening remarks, I want to address the administration’s arguments that it has given to justify these programs.

       Section 215 authorizes the government to obtain certain business records only if it can show to the FISA Court that the records are “relevant” to an ongoing national security investigation.

       Our committee added the “relevance” standard to Section 215 when we debated reauthorization of the PATRIOT Act in 2005.  The rationale for this requirement was explained in the committee’s report that accompanied this legislation:

“[Section 215] is similar to the widely-used grand jury subpoena authority in criminal investigations….  Under Section 215, only an Article III FISA judge can issue an order for business records; an investigation of a U.S. person cannot be based solely on activities protected by the First Amendment; the records must be for a foreign intelligence or international terrorism investigation; and minimization procedures must be used.”

       Unfortunately, nearly every one of these criteria has been violated by the programs we have read about in the Guardian and the Washington Post.

        For example, although we clearly intended Section 215 authority to resemble a grand jury subpoena—directed at a particular individual, and related to a specific investigation—the government instead collects records of every phone call made in the United States.

        Here’s another example:  grand jury subpoenas—indeed, most Article III court orders—are eventually satisfied.  Under Section 215, the government instead renews its demands for the production of phone records every 90 days, forcing companies to provide these records on an ongoing basis, apparently without end.

        And, here is yet another example: although Section 215 was reauthorized with specific, individual protections for First Amendment activities, those protections become meaningless when the government simply collects information on each of us, in bulk form, hoping to sort good citizens from bad citizens at a later date.

       In the present case, by the government’s own admission, there is no limit whatsoever on its collection of metadata under Section 215.

       I have therefore come to the conclusion that, if the government cannot provide a clear, public explanation for how its program is consistent with the statute, then it must stop collecting this information immediately.

       I want to distinguish this much-needed legal explanation from discussions about theeffectiveness of these programs.

       Various government officials have assured the public that these programs make us safer.  Those assurances have no bearing on the law.  Indeed, there are many unlawful steps the government could take to enhance our national security.

       I urge the witnesses to respond with substance, not anecdotes or theoretical cases. I do not want to hear the story about gathering “the haystack” today so that you can look for “the needle” later.

       Another concern that I have pertains to the administration’s track record of responding to criticisms of these programs.

       On March 12, Senator Wyden asked Director of National Intelligence James Clapper whether the government collects “information about millions of Americans.”  The answer, as we know, is yes.  Yet Director Clapper—incredulously—said no.

       Although he later apologized for his “erroneous” statement, he did so only after the scope of metadata collection was made known to the public.

       On June 26, National Security Agency Director General Keith Alexander retracted two public fact sheets related to electronic surveillance under Section 702.

       When pressed by Senators Wyden and Udall, he agreed that the document “could have more precisely described” the standards for collection.  But the public still does not know which misleading items led to the retraction.

       During his appearance before this committee last month, FBI Director Robert Mueller asserted that, had Section 215 surveillance been available in 2001, the attacks of September 11th might never have occurred.  Other senior administration officials have made similar statements.

       With all due respect to Director Mueller and his colleagues, none of us are empowered to rewrite history.

       The 9/11 Commission did, in fact, conclude that—had the government been able to identify certain suspects in time—we might have disrupted the plot.

       But the commission did not say that lack of surveillance capabilities prevented us from taking action.

        In fact, the 9/11 Commission came to the opposite conclusion: the government agencies in charge of tracking these suspects—the CIA, the NSA, and the FBI—failed to effectively communicate with each other and failed to draw conclusions from the evidence already available.

       President Obama has called for a “public discussion” about these authorities.  I agree.  But if we are to have that discussion, the people and their elected representatives need to know it is a frank, honest, and straightforward discussion.  Thus far, I am not able to say that is the case.

       Which leads me to my final point: our conversation should focus on improving both public scrutiny and congressional oversight of these programs.

       Over the past six weeks, the administration has asserted that it conducts this surveillance with congressional support—because they have briefed some members about these programs in the past.

       It seems that the government takes the position that the mere fact of briefing some members implies our unanimous endorsement of these activities.  I assure you it does not.

        Many of my colleagues have never had an opportunity to attend these briefings.  Others are critics of these surveillance programs precisely because of what we have learned about them in a classified setting.

       And we are all concerned about the “Catch-22” ramifications of a classified briefing.  If we receive classified information in a secure setting, we cannot discuss it with our constituents; if we skip the briefing, we risk being uninformed and unprepared.

       One simple solution to this problem would be to publicly release significant FISA court opinions or, at the very least, unclassified summaries of these opinions. 

       This solution would have the added benefit of subjecting the government’s legal claims to much-needed public scrutiny.

       Over the past decade, the court has developed a body of law that instructs the government about what it may do with the information it collects from U.S. citizens, even when it collects that information inadvertently.  There is no legitimate reason to keep this legal analysis from the public any longer.

       If we are to strike the right balance with these surveillance authorities, then we must bring the public into the conversation without delay.  Instead of simply asking our constituents to trust us, I am asking you, the executive branch, to trust them.

       I yield back.

Witnesses

Panel 1

Mr. James Cole, U.S. Dept. of Justice

Mr. John C. Inglis, National Security Agency

Mr. Robert S. Litt, Office of Director of National Intelligence

Ms. Stephanie Douglas, FBI National Security Branch

Panel 2

Mr. Stewart Baker, Steptoe & Johnson

Mr. Steven Bradbury, Dechert, LLP

Mr. Jameel Jaffer, American Civil Liberties Union

Mr. Kate Martin, Center for National Security Studies

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