Transcript: Sen. Mike Lee’s Q&A with Robert Litt and Brad Wiegmann on the Surveillance Transparency Act – Nov. 13, 2013

Partial transcript of Sen. Mike Lee’s (R-Utah) Q&A with Robert Litt, General Counsel at the Office of the Director of National Intelligence, and Brad Wiegmann, Deputy Assistant Attorney General, National Security Division, on the Surveillance Transparency Act of 2013. The Senate Judiciary Subcommittee on Privacy, Technology and the Law hearing was held on Nov. 13, 2013:

Sen. Mike Lee (R-Utah):
…Much of the testimonies that we’ve received today highlights the consequences of unchecked government intrusion into the private lives of citizens and their interaction with private businesses. Sen. [Al] Franken’s bill would take important steps to increase transparency of government requests for information, and I very much applaud those efforts.

In fact, Sen. [Patrick] Leahy and I have incorporated the vast majority of Sen. Franken’s provisions into our bill – S. 1215 the FISA Accountability, Privacy and Protection Act – which makes broader reforms to the privacy protections within the FISA program. Our bill would tighten statutory authorities governing surveillance, would increase oversight and accountability, and would ensure that Americans’ constitutional rights under the Fourth Amendment are protected. The reporting provisions in these bills guarantee that we have an accurate understanding of the scope of these information collection activities and allow businesses to regain the trust of the public through the reasonable disclosure of their interactions with government agencies as they provide information. It’s time we started requiring a little more sunlight in this fairly shadowy space.

Mr. Litt, in your written testimony, you expressed support for the majority of the disclosure requirements in this bill. I was wondering is your support a direct result of formerly covert collection programs having become public or do you think that nationwide aggregate disclosures are inherently beneficial and should be sought out?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
I think the answer to that is that aggregate disclosures are a good thing provided they don’t compromise our ability to collect important information. I think in the situation where we’re in right now, whatever the appropriate result might have been 6 months ago – in the situation where we’re in right now, the Director of National Intelligence has already declassified the fact of certain programs and how they operate that it’s entirely appropriate to have aggregate disclosures of these activities going forward. For other important activity – intelligence activities – I’m not sure that we’d reach the same balance, but to the extent that we’re talking about these particular disclosures, we believe that they do strike the right balance now.

If I could just – one thing – just – I know this is considered not the discreet thing to do. I do want to take issue with your suggestion that we’re talking about unchecked intrusions into privacy of Americans because in fact they’re very checked. We operate within the laws authorized by Congress. We operate with extensive oversight from all three branches of government, and they’re highly regulated and highly checked. Whether or not they are – whether or not they’re appropriate or not, I think, is a valid question. But nobody should be under the illusion that we’re operating without any checks on what we do.

Sen. Mike Lee (R-Utah):
And that is a fair point, and I understand your position there. One of the concerns is always, of course, that what might well be handled by responsible people today tomorrow might not be. We don’t know whether that might happen a week from now, a year from now, or 10 years from now. But in a sense, we’ve seen this movie before and we know how it ends. If you give too much power to the government with regard to domestic surveillance, eventually it will be abused. We need to put in place whatever procedures might be necessary.

If I understand your answer to my question correctly, part of what you’re saying is that prior to the declassification that occurred recently, this might have ran afoul of – this might have triggered your concerns – this kind of legislation might have triggered your concerns in the sense that it might have compromised ongoing activities. But those have now been declassified, there’s no reason not to do this. Am I understanding you correctly?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
Yes. I think that’s right.

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