House Judiciary Committee Seeks Information about Surveillance from Government, Telcos and ISPs

September 11, 2007. The House Judiciary Committee (HJC) announced that it will hold another hearing on surveillance and the Foreign Intelligence Surveillance Act (FISA). See, HJC notice.

This hearing, titled "Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights (Part II)", will begin at 11:00 AM on September 18, 2007.

Kenneth Wainstein, Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD), is scheduled to testify. See also, Wainstein's speech of September 10, 2007, and story titled "Wainstein Discusses FISA" in TLJ Daily E-Mail Alert No. 1,638, September 11, 2007.

Michael McConnell, the National Intelligence Director, is also scheduled to testify.

Rep. John Conyers (D-MI) sent a letter [PDF] on September 11, 2007, to McConnell, and a letter [8 pages in PDF] to Fred Fielding, the White House Counsel, regarding government surveillance, the FISA, and amending the FISA.

While some Senators, Representatives and Committees involved in surveillance and FISA related investigations and debates have attempted to avoid involving telecommunications companies and internet service providers, Rep. Conyers' letters focus on companies that are or have been clandestinely collaborating with the government.

Rep. Conyers' letter to McConnell pertains to the involvement of telecommunications companies in surveillance, the government's assertion of the state secrets doctrine in civil litigation regarding this surveillance, and the government's failure to provide information to the HJC regarding this surveillance.

Rep. Conyers' letter references an article by K. Shrader titled "Spy chief reveal classified details about surveillance", published in the El Paso Times on August 22, 2007, and a transcript of an interview of McConnell by the El Paso Times' Chris Roberts.

Rep. Silvestre Reyes (D-TX) represents the city of El Paso, in the state of Texas. He is the Chairman of the House Intelligence Committee.

McConnell first discussed why S 1927 [LOC | WW], the "Protect America Act", was needed, and should be made permanent.

He said in his El Paso Times interview that "the issue was the technology had changed and we had worked ourselves into a position that we were focusing on foreign terrorist communications, and this was a terrorist foreigner in a foreign country. The issue was international communications are on a wire so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that. So the most important thing to capture is that it's a foreigner in a foreign country, required to get a warrant. Now if it were wireless, we would not be required to get a warrant. Plus we were limited in what we were doing to terrorism only and the last time I checked we had a mission called foreign intelligence, which should be construed to mean anything of a foreign intelligence interest, North Korea, China, Russia, Syria, weapons of mass destruction proliferation, military development and it goes on and on and on".

Roberts asked McConnell, "How many calls?" McConnell responded, "Don't want to go there." However, he proceeded to volunteer answers to questions that Roberts had not asked. McConnell continued, "Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities."

McConnell, who was referring back to a meeting in June with Senators, added that "I was after three points, no warrant for a foreigner overseas, a foreign intelligence target located overseas, liability protection for the private sector and the third point was we must be required to have a warrant for surveillance against a U.S. person."

McConnell also said that under S 1927, "liability protection for the private sector now is proscriptive, meaning going forward. We've got a retroactive problem." He added, "the retroactive liability protection has got to be addressed" when the Congress reconvenes in September.

"Now, this is a very, very complex bill. I had a team of 20 lawyers working" for two years on this.

He also said that public disclosure and debate regarding FISA surveillance "means that some Americans are going to die".

He explained that "because we do this mission unknown to the bad guys because they're using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means". He stated this with other words: "So the more public it is, then they take it away from us".

He added that this surveillance pertains not just to threats to the U.S., but also to the "war in Afghanistan and Iraq".

McConnell also spoke about the under representation of Hispanics in the intelligence community, and current efforts to recruit more.

Rep. Conyers' letter focuses on McConnell's reference to private sector involvement in surveillance.

Rep. Conyers wrote that "in light of the Administration's previous refusal to provide such information to Congress, this selective disclosure of information raises troubling questions".

Rep. Conyers asked, "Was a specific decision made to declassify any previously-classified information contained in the El Paso Times interview and, if so, when, by whom, and under what authority?"

He also asked, "In light of your public confirmation of the involvement of ``private sector´´ telecommunications companies in the Administration's surveillance programs, what is the specific justification for your claim a few months earlier in litigation that confirmation of such involvement cannot be permitted under the state secrets doctrine?"

This letter was signed by Rep. Conyers, Rep. Jerrold Nadler (D-NY), the Chairman of the HJC's Subcommittee on the Constitution, and Rep. Bobby Scott (D-VA), the Chairman of the HJC's Subcommittee on Crime. However, it was not signed by their Republican counterparts.

Reps. Conyers, Nadler and Scott sent a second letter [8 pages in PDF] to Fred Fielding, the White House Counsel, that is in the nature of a request for production of documents (RPD) and written interrogatories, related to government surveillance, acquisition of records, the FISA, and amending the FISA.

One interrogatory asks: "Please identify all telecommunications companies or internet service providers that allowed the government to access communication streams in the US without warrants between September 2001 and January 10, 2007. Please identify all telecommunications companies or ISPs that have allowed access since January 10, 2007. Please break down by programs that obtained external and internal data."

Another asks: "During the time period in March 2004 in which the warrantless surveillance program did not have Attorney General certification, please identify all telecommunications companies that continued to allow surveillance without such certification. Please break down by programs that obtained external and internal data."

Another asks: "Please identify any telecommunications companies or internet service providers that refused to allow access to communication streams without court order or warrant. Please provide all letters or communications from telecommunications companies or internet service providers in which they refused to allow access to communications streams without court order or warrant. Please break down by programs that obtained external and internal data."

Another asks: "Please identify the precise legal authority that was asserted in any and all documents provided to telephone or internet service providers to obtain their cooperation between September 2001 and January 2007. Please break down by programs that obtained external and internal data. Please provide any certifications, letters, and any legal memoranda or opinions setting forth such authority."

Also, on September 18, at 10:00 AM, the House Intelligence Committee (HIC) will hold a hearing on the FISA. The witnesses will include Jim Dempsey (Center for Democracy and Technology), James Baker, and Kate Martin.