Wyden Statement at Intelligence Committee Hearing: Why Hasn’t The Executive Branch Stopped Vacuuming Up Americans’ Phone Records?

Washington, D.C. – Sen. Ron Wyden, D-Ore., emphasized the need to pass a true reform bill that guarantees the end of overreaching mass surveillance programs, and asked why the executive branch hasn’t ended unnecessary and intrusive collection of American’s records, during a rare open session of the Senate Select Committee on Intelligence today.

Watch Sen. Wyden’s questions here.

A transcript of his questions is below:

First round:

WYDEN: Thank you Madam Chair, let me commend you on holding an open hearing today, I think that’s very constructive, and I appreciate all our witnesses being here.

Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans.  This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today.

I am particularly concerned about it because as global communications get increasingly interconnected, this loophole is going to grow and grow and grow as a threat to the privacy of law-abiding Americans.  So for purposes of getting on top of this and working with all of you, my question today, is how many of these warrantless searches for Americans’ communications have been conducted under section 702? For you, Mr. Ledgett?  

LEDGETT: Thank you, Senator Wyden. The searches under the provisions of the FISA Amendment Act section 702 are only collected on lawfully acquired data and under Foreign Intelligence Surveillance Court-approved procedures. The searches are not just conducted by NSA; they involve other agencies as well. We have provided, as you know, detailed information to the committee on the background on this, and we will work with the DNI and the rest of the IC to provide additional information to you.

WYDEN: So when would I get an answer to the question? It’s a very specific question. The director admitted to me in a letter that these warrantless searches are taking place. And I’m going the next step, and saying, ‘How many of them?’ When will I get a letter telling me how many of them have taken place? I’d like it within two weeks, because it is obviously relevant to making this part of the Senate bill, because it was omitted in the House.

LEDGETT: Yes, sir.

WYDEN: Can we have it within two weeks?

LEDGETT: We’ll work on that, sir. We’ll get you a response within two weeks.

WYDEN: Thank you. Making some progress. Now, the only other question I had for today is at this moment, your agencies continue to vacuum up the phone records of millions of law-abiding Americans.  This is because the Executive Branch has not taken any action to stop these practices. I and others consider this enormously intrusive and the inflated claims about its value have crumbled under scrutiny. But, yet, right now, the constitutional rights of Americans are needlessly being violated while in effect I guess the administration waits for the Congress to act. And I think this is a case of bureaucratic inertia at its worst.  So my question for all of you, in fact maybe we start with you, Mr. Cole, would be given that the government can use regular FISA orders and National Security Letters to quickly obtain the phone records of terrorists and their associates, something I support, why hasn’t the bulk collection of Americans’ phone records been ended?  

COLE: Well, I think this is the same question that Senator Udall had asked, which is that the authorities that we have under National Security Letters and under other authorities, absent the 215 orders that we’ve all been talking about, don’t really give us the tools that we need. The legislation, HR 3361 gives us those, including the two hops, it gives us the prospective collection, it gives us a wider range of information that we wouldn’t have under normal authorities. We’d only get a single entity and what it’s been in contact with, you then have to go back and do separate items for each additional terrorist and associate that’s there. It’s not the same tool that we would have under either the legislation or what we have now.

WYDEN: Mr. Cole I understand your agency’s desire for clear statutory authority, and the Chair of the committee has, I think, been constructive here in terms of urging some changes to the House proposal, but the reality is that current law gives the government broad authority right now, to obtain records quickly and the FISA court unquestionably has been inclined to give the government an enormous amount of latitude. So the fact that this dragnet surveillance is taking place right now is unacceptable to me, and I’m going to continue to keep working on this and I’ll have more to say about it down the road. Thank you, Madam Chair.
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Second Round:

WYDEN: Thank you, Madam Chair, and I’ll submit other questions for the record, but I need to ask your agencies a question for the record relevant to a matter that has taken a lot of our time. For each of you, just go right down the row, do you believe that it would be appropriate for your agency to secretly search Senate files without seeking an external authorization or approval?  Just go down the row. Mr. Ledgett?

LEDGETT: No, sir.

WYDEN: Ms. O’Sullivan?

O’SULLIVAN: No, sir, if I understand your question. By definition we are not permitted to conduct a search that is not properly authorized in some fashion.

WYDEN: Right answer.

COLE: The only thing I would limit it is that because my agency involves the attorney general, not every approval would have to be external, but you would have to have the appropriate legal approvals in every instance.  

GIULIANO: So would we.

WYDEN: Thank you very much Madam Chair.