Transcript: Rep. Terri Sewell’s Q&A with DNI James Clapper & NSA Director Gen. Keith Alexander on surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Terri Sewell’s (D-Alabama) Q&A with Director of National Intelligence James Clapper and National Security Agency Director Gen. Keith Alexander on NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Terri Sewell (D-Alabama):
First, let me just say to Gen. Alexander and Director Clapper, I’m a new member of the committee, as you know, and I have learned so much in this small amount of time. I have the utmost respect for not only what you do each and everyday but the people and the teams of people that you direct each and everyday.

Having said that, I have to tell you that the American people have lost confidence in what we do, and I think that at some point, perception becomes reality even though reality may be something totally different and not based on the facts that as you know it or have laid out today.

So my comment is that we should err on transparency and to the extent that we can declassify information so that the American people can understand what you do, the better off, I think all of us will be.

Where I come from, I think we need to reform these programs, not just dismantle these programs. But I think there are ways that we can make them much more transparent. For example on the FISA court. Can you explain how one goes about getting a warrant and goes before the FISA court currently? And is that an adversarial process? And if not, which I know it’s not, how can we make it more transparent and not so much adversarial as it is not just a blank check that we’re just, you know, checking a box?

Deputy Attorney General James Cole:
Well, I think there’s a number of things that the FISA court does and it would depend on the function and the role, and you can compare it in many ways to the traditional criminal law in how we get warrants when we’re in criminal investigations for wiretap under Title III of the statutes that are involved. On a routine matter, I think it would be disruptive and would slow down the work of the FISA court and of the intelligence community to have an adversarial process going on – it’s never been done in criminal law – in order to obtain a FISA warrant for an individual. These are ones that are done on probable cause showing that the person is an agent of a foreign power or acting on behalf of a foreign power or is a foreign power. And there’s other requirements that need to be shown in that regard in order to allow us to get content in that regard because content really involves Fourth Amendment implications.

There are other things that the FISA court does where it interprets the law in novel and significant ways. And in that regard, we have in a couple of different settings and hearing said that there are times when the court may well benefit from appointing an amicus who would come in and give other viewpoints in that regard, and those could be beneficial and help the court in finding its way through novel and significant and difficult areas of the law.

We think there’s also an appropriate place when you’re dealing with very serious and significant privacy implications. For example, in some of the 215 bulk collection issues that there could be a place if the statutes provide for an amicus to come in and give the court a benefit of other points of view in order that the court to have benefit of that. But some of that is in the court’s power now, but some of it would require changes in the legislation in order to be able to do it. Right now, the statute says there should be ex parte hearings which involves only one party. There’s some constitutional issues of whether an amicus would have standing or someone coming in who’s not involved would have standing, and there are some other things of that nature that you’d have to work through.

Rep. Terri Sewell (D-Alabama):
Would DOJ be opposed to making those kinds of suggested reforms to the FISA court? I mean, you initially said that it would take more time so that the loss of time was a reason why an adversarial process would not work. But in listening to your explanation, there are cases in which having an adversarial process will lead to a better result and in that a more transparent process for the American people.

Deputy Attorney General James Cole:
I think there are some cases where that would be the case. Some of those I think still would need to be mindful of timeliness and be able to be nimble because when these authorities expire, they only go for 90 days at a time. You’d have to renew them, so you’d have to allow and make sure that you’re putting in enough time that you don’t create a gap where they expire and you have no coverage when we’ve determine that the coverage is in fact beneficial. So I think those are things that could be worked through.

Some of these are not just suggestions that the Department could make to the FISA court. They’re aspects of any legislative changes that the committee may want or the Congress may want to be considering that would have to be put in place.

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