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

Partial transcript of Rep. Jim Himes’s (D-Connecticut) 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. Jim Himes (D-Connecticut):
…I share your frustration with a lot of the misinformation that is out there and the rumors that get started and whatnot and have spent an awful lot of time playing the same game of whack-a-mole and I know you all have. And I get equally frustrated by the framing of these issues between patriotic or non-patriotic, sinister or non-sinister.

I know three things, and I think we’d all agree on these three things. One, you do essential life-saving work. Number two, you’ve got to do that work within a constitutional framework. And number three, like all institutions composed of mortals, sometimes you don’t get it right.

And what I’m really interested in is are you getting it right more as you think about, as you look at the results of what appears to me to be very solid compliance and other internal control systems?

I’ve given a lot of attention amidst all the rumors and information that’s out there in the media, I’ve given a lot of attention to some of the writings of the FISA judges. And I really have two questions, both of which are about the BR-215 metadata program. In 2009, the FISA judges had very strong language with respect to the program. Judge [Reggie] Walton at the time said that the court had no confidence – it was what he said about – “to approve such a program, the court must have every confidence the government is doing its utmost to ensure that those who are responsible for implementation fully comply with the court’s orders. The court no longer has such confidence.” This is 2009. This is not current, and it just sets up my question. And by the way, I would point out too that anybody who thinks that the FISA court is a patsy should read the language that Judge Walton and Judge [John] Bates used in 2009.

So my question is number one, if we were to look at the compliance reports – and some of them I have looked at – from 2009 – and there’s the famous 2,776 episodes – if we were to look at those up to the present, would we see improvement? Question number one.

Question number two is fairly strong language from Judge Walton and from Judge Bates in 2009. Would you characterize the IC’s relationship with the FISA judges as better – progress having made? Would we not see such language used today if we could get a look at the documents that are equivalent to the one that I quoted from?

NSA Director Gen. Keith Alexander:
On the second one first, we’re actually having the FISA judges up to NSA tomorrow. They will go through and see what our folks do.

On the first one, this is actually where this committee – you know, this was wirebrushing number 14 for me by the committee. We made a mistake. What we thought we had written in the way we meant for the information to go into was not the way that we had represented that to the court in multiple representations. And it was a mistake in translating a technical to a legal framework.

I’ll tell you what I told the committee 4 years ago: I think the people who made that mistake made an honest mistake. This was not somebody doing willful – they made a mistake. I had those people in my room. I talked to them, and I said, “Okay, that’s on me.” And so we carry that forward. We actually looked at it, and we decided at that time jointly with this committee and others that we need to set up a Director of Compliance. It gives us more rigor in looking at the court orders and the way that we’re technically implementing them.

Now, we’ve done that. Every one of these now are going through that rigorous process. All of our FISA applications are being wirebrushed to ensure they’re exactly right. And of course, as we’re doing that, we’re going to find mistakes and we’re rooting them out mistake by mistake.

So, as we finish this up, what you’re going to see then is that means you’re doing an IG level inspection on every page, everything that we’re doing, we’re trying to find every one of those. And our Director of Compliance is doing just that. We report every one to everybody – every one of those incidents, and so that’s what you’re seeing.

I think what you’re seeing coming out of this next year is all of a sudden they’re going to drop down significantly low, and I think this is a good thing. That’s what you’d want us to do.

Rep. Jim Himes (D-Connecticut):
Is that reflected in a change in the nature of the communications between the IC and the FISA judges?

NSA Director Gen. Keith Alexander:
I think it is. And you know, you read that language. I actually sat down with them. We actually went – I had some very, very uncomfortable meetings. We went with the Director of National Intelligence up there – at the time, Director Blair -with the entire court – all 11. Then we went to the White House, then we went to you all on multiple occasions, and everybody was walked through on that.

I think what the court – here’s my opinion from the court, if you’re asking me to give you that. I think what they see is we’re trying to do the right thing, that there is no malicious intent there, that we do make mistakes, as you pointed out in number three – we are human. And we are setting up a compliance and oversight apparatus that limits that to the maximum extent possible.

Rep. Jim Himes (D-Connecticut):
Thank you, General. I think that’s important…The judge [Walton] said something really important in his letter to Chairman [Patrick] Leahy and because it was on the 6th footnote on page 3, I think it was lost. I just want to highlight that right here. One of the many pieces of misinformation out there is that the FISA court doesn’t scrub these applications. Judge Walton in that footnote notes that the approval rate for Title III wiretap applications – that is to say domestic wiretap applications – is higher than the approval rate for FISA applications, and notes that almost a quarter of the applications before the court are substantively changed in this process. So I say all that just to say there seems to be an appreciation on the court’s part of their role as well…


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