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tv   Senators Seek Answers on Monitored Calls with Foreign Leaders at FISA...  CSPAN  June 30, 2017 12:29pm-2:24pm EDT

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historic mansion built in 1914 for the home belonged to the former owner and publisher of the oregonian newspaper. >> they worked there for a number of years and pretty much proved himself invaluable. he was the one that kept it going. the owner was rather distracted with politics to the point that he owed henry a lot of back wages. in 1860 they decided to give the paper to henry in return for back wages that he was owed. he turned it into exhibits us, invested in a lot of real estate as the town group and was able to build a house as grand as this one. >> watch c-span city tour of portland oregon saturday at noon eastern on c-span to book tv and sunday at 2:00 p.m. on american history tv on c-span three. working with our cable affiliates across the country. earlier this week the senate judiciary committee examine
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the foreign intelligence surveillance act. the prospect of reauthorizing section 702 which allows intelligence agencies to access to medications of foreign nationals outside the united states. : oversight hearing on section 702 in may 2016. since then, the drumbeat of terror attacks in the united states and other countries, particularly our allies, has
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continued. a month after our hearing, the terrorists attacked an orlando nightclub, killing three and wounding 53. that same night a terrorist detonated pipe bombs in new jersey and new york, injuring about 30. last month, great britain suffered its worst terror attack in over a decade. a suicide bomber killed 22 and seriously injured many more at a concert in manchester. many of the dead and wounded as you know were children and very young people. these attacks underscore that the first responsibility of government is to ensure that those who protect us every day have the tools to keep us safe. and when i said government, i should have said of the united states government
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under our constitution. these tools must adapt to the technological landscape and the evolving security threats that we face. but at the same time of course, the rights and liberties and enshrined in the constitution are fixed. they require other constant vigilance to maintain those. section 702 of fisa amendments provides the government the authority to collect the electronic communications of foreigners located outside the united states with a compelled assistance of american companies sits at the intersection of these responsibilities. under section 702, it's against the law to target anyone in the united states or any american citizen wherever that citizen is on this globe.
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the statute also prohibits reverse targeting. that term means targeting somebody outside the united states for the purpose of targeting somebody inside of the country. under the statute, the fisa court must approve targeting and minimization procedures to ensure that only appropriate individuals are subject to this surveillance. these procedures also limit the handling and use of any communications so collected and implementation of the statute is overseen by all three branches of the government, including the appropriate inspectors general. after much debate and after much discussion, this law was passed by congress and signed
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by president bush in 2008. the obama administration requested that it be reauthorized without any changes and congress did just that in 2012. now president trumps administration is making the same request. from all accounts, section 702 has proven highly valuable in helping protect the united states. the privacy and civil liberties oversight board found unequivocably that section 702 quote, has helped the united states learn more about the membership, the leadership structure,
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priorities, tactics and plans of international terrorist organizations and has enabled the discovery of previously unknown terrorist operatives as well as the locations and movement of suspects already known to the government, and the quote from that oversight board. the board concluded section 702 quote, has led to the discovery of previously unknown terrorist plots directed against the united states and foreign countries, enabling the disruption of these plots, end of quote. moreover, the board fisa court and other federal courts have found the implementation of section 702 lawful and consistent with the fourth amendment. in addition the board proposed a number of recommendations in its report to help improve the privacy and civil liberties on section 702 programs. according to the board's most
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recent assessment report, all of its recommendations have been implemented in full or in part for the relative agency has taken significant steps towards adopting these recommendations. in 2016, a heritage foundation report concluded that 702 is a quote, critical and valuable tool for american intelligence and officials so vital to america's national security that congress should reauthorized section 702 in its current form, end of quote. but as is always the case with policy issues and the congress, particularly between the freedom of the american people and our national security concerns, we do have questions of concerns persist for some
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about section 702's affect on the civil liberties. some of these concerns relate to communications incidentally when it turns out they targeted foreigner is in contact with somebody in the united states or with an american. but of course, there is often no way to know who has surveillance target may be in contact with beforehand. that's in part why they are under surveillance in the first place. and these are situations where the program can be highly valuable by letting our government know if a foreign terrorist plot might reach our shores. still, the unknown of this
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incidental collection is concerning to many. want to understand that. some are also concerned the way in which the fbi has committed the search already collected 702 material. however, it was precisely this kind of information sharing that was recommended by both the 9/11 commission and the webster commission that convened after the fort hood attacks. law enforcement needs to be able to connect the dots and do that to protect the american people. in addition, the recent fisa court opinion that the money the executive branch or failure to comply with the minimization procedures and some ways ought to be and is highly concerning as well. finally, there have been allegations that intelligence reports have been on man for
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partisan political purposes although these allegations have been directed at section 702 specifically. they are highly troubling and leaks of classified information that damage our national security seem to continue unabated. i understand that no internal or external review debate has found any evidence of intentional abuse on section 702 for any reason whatsoever. nonetheless, it's important that congress make sure it hasn't been so abused and it's equally important that we ensure that the justice department has all the tools that it needs to prosecute leaks of classified information. so taking all these things into consideration, this is one of the reasons and the main purpose for having this
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that national security has to be at the top of the list and so we welcome our witnesses and look forward to their testimony today and don't forget the classified briefing tomorrow with senator feinstein >> thanks very much mister chairman and i to welcome our witnesses. i know they are rather grim faced but i hope there will be a smile or two forthcoming. i want to say thank you for holding this hearing and let me begin by saying i fully support reauthorization of the fisa amendments act including section 702. earlier this month, the intelligence committee of which i am a longtime member along with senator cornyn of this committee held a hatchet meeting on section 702 of fisa. this would likely mean that intelligence will be passing the bill very shortly. in fact, senator, and a
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number of other republican senators on the intelligence committee have offered a bill which would permanently authorize the fisa amendments act including section 702 without the five year sunset. i would note however that senator cotton's bill was referred to this committee , the judiciary committee and there's a reason and that is because this committee has the jurisdiction over both fisa and 702, particularly given the impact on americans communications and privacy. so i think it's important that our committee get to work quickly on reauthorization of 702 which as we know is a very critical program in the collection of valid intelligence. let me state at the outset that i believe any reauthorization should
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include a sunset provision. >> and without it, it will not have my support. congress has an important oversight role to play in this measure. society changes, the world changes. technology and communications change. and the sunset allows us to review and revise such as may be necessary due to technology changes as well as other changes. >> it happens at such a rapid pace. >> currently the government is required to obtain approval from the fisa court every year for continuing its content collection under 702. >> congress should have the same ability to review and evaluate this program on a periodic basis. a sunset provision allows us to do just that. as a matter of fact, it's five years now i would urge that in six years because it
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takes it outside of an election year. let me restate that i fully support the 702 program. i believe it's a vital terrorism tour . the intelligence committee under both democratic and republican administrations have consistently stated the program produces critical foreign information to protect the nation against international terror and other threats. the privacy and civil liberties oversight board which we call the peak club board has conducted extensive independent review of the 702 program and concluded and i quote, the information the program collects has been valuable and effective in protecting the nation's security and producing useful foreign intelligence. >> the section 702 program also includes a number of
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safeguards to ensure the protection of privacy and civil liberties. under current law, for example, section 702 authorizes the targeted collection of the content of international internet and phone communications only and i underline that, of foreigners who are located outside of the united states. and only underlined, for the purpose of gathering foreign intelligence information. moreover, although there have been some compliance considerations over the years, there has never been a finding of intentional abuse of 702 authorities. now. in fact, the privacy and civil liberties oversight board found that i quote no trace of any such illegitimate activity associated with the program or any attempts to
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intentionally circumvent legal limits. in addition, the program is subject to extensive oversight by the foreign intelligence surveillance court, the fisa court, the relevant inspectors general and medicaid and internal oversight personnel at the justice department and the od and i. another reform we might take a look at is requiring the fisa court to appoint an outside counsel, known as an amicus each time the government seeks court approval of its annual certification that happens every year to continue the section 702 program, this was actually done on the last certification and i think it's helpful in reassuring people that there is an independent individual in the court reviewing these
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matters. mister chairman, i want to thank you once again for calling this hearing, particularly since we have the jurisdiction to play this role and i hope we can get our act together and take a look at the bill that is here that senator cotton has introduced. and that we can move it but with a sunset clause. so i want to thank the witnesses for being here today and thank you. >> in regard to your process, you and i have not talked about that process yet. but our staff is at the highest level have been talking about that and we will wait until they report to us. >> i assume nothing would change your jurisdiction, >> okay. thank you.
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the first panel, i'm going to introduce each of you and then you will speak to my left and my right. >> you will ask questions and we will have five minutes to run some questions. bradley brother serves as acting general counsel of the designated agency ethics individual for the office of director of national intelligence and previously worked as an attorney at an international law firm. esther porter is a graduate of arizona state university and american university of washington college of law. >> stuart evans serves as deputy assistant attorney general for intelligence at the united states department of justice. he previously served in a number of career positions within the department of justice as national security division including as both chief and deputy chief of the office of intelligence counterterrorism unit. we obtained his bachelor's degree from the university of
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pennsylvania and his law degree from columbia university. carl gaddis serves as the executive assistant director of the national security branch at the federal bureau of investigation. he leads the operations and intelligence efforts, national security matters ranging from terrorism to espionage, to weapons of mass destruction. in 2014 he was appointed special agent in charge of the washington field offices counterterrorism program and most recently served as assistant director of counterterrorism division . mister gaddis served, earned a bachelor of arts degree from two universities and a juris doctorate from washington university. paul morris is a deputy general counsel for operations at the nsa.
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he has served overseas as the agency's practice groups or legislation, intelligence law and information and cyber security. commissioner morris received a bachelor's degree from the university of maryland and his law degree from george washington university.would you please start, mister brooker and by the way, you can have longer statements that will be put in the record. i never wrap the gavel at exactly 5 minutes but when the rightred light comes on trying to summarize as best you can . proceed. >> chairman grassley, madame feinstein and members of the committee, we all want to thank you for holding this hearing. my colleagues in doj and fbi. as you know, intelligence collection under 702 has produced and continues to produce significant
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intelligence that is vital to protect the nation against international threats whether they be counterterrorism, weapons proliferation or cyber. at the same time it provides an incredibly strong protections for the privacy and civil liberties of our citizen. in permanent reauthorization of the fisa amendments act without further amendment is the intelligence community's top legislative priority. >> i want to begin today by giving a very recently classified example that impacts section 702. >> before rising to the ranks to become the second in command of the self-proclaimed ices, hygiene mom was a high school teacher . his transformation to a terrorist because the united states government to offer a $7 million reward for information leading to him. >> it also made him a leading focus of nsa's counterterrorism efforts. nsa along with its partners bent over two years looking for him. this was ultimately successful primarily because of section 702.
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indeed, based almost exclusively on intelligence activities under two, nsa collected a significant body of foreign intelligence about the activities of hygiene mom and his associates. beginning with non-section 702 collection. nsa learned of an individual closely associated with him. nsa venues collection emitted and authorized under 702 to collect intelligence on the closest system which allows nsa to develop a robust body of knowledge concerning the personal networks of hockey mom and his close associates. >> over twoyears using section 702 collection , and in close collaboration with our it partners, nsa produce more intelligence on hygiene mom associate including their locations. nsa and its tactical partners then combine this information with other intelligence assets to identify the reclusive hygiene mom and track his movements. this collaboration enabled us
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forces to apprehend him and his two associates on march 24 last year. during the attempted prevention, shots were fired at us forces from his location. us forces returned fire, killing hygiene and mom and his other associates at that location. 702 collection confirmed that. this is one example and although many excesses enabled by 702 arehighly classified and we'd like to discuss them tomorrow in more detail , the purpose of the authority is to give the us government the upper hand in trying toupper attacks against our citizens and allies . at the same time section 702 provides strong protections for the privacy of our citizens as mister abdul discuss both the legal framework and our oversight efforts. i want to briefly highlight two things.first, section 702 has several important legal protections that
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protect the privacy rights of our citizens and secondly the government section 702 program is subject to rigorous and frequent oversight all three branches of government and i want to stress what those ranking members stress earlier. we are particularly proud of our oversight records and both doj has shown extremely low rates and that not once have we had an intentional violation of the law. >> there have been mistakes but assistant with zero compliance incidents rightly is a broken compliance system because humans make mistakes. as a recent example of the oversight process and mister mooresville discussed nsa identified compliance incident involving a series of us persons in the second to upstream collection and in short the compliance was identified, it was reported, the interagency work together to find a solution , proposed a new set of procedures and we move forward. before i conclude i want to talk about one issue that i know has been the subject of much public discussion. there's been a push from
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congress and the advocacy community for nsa to attempt to count the number of united states persons indications are instantly acquired under section 702 collection. nsa has made significant efforts to devise accounting strategies that would be accurate and respond to the question asked. unfortunately we were unable to develop an accurate, meaningful and cost-effective methodology. i want to be clear, to determine if communities are us persons and they would be required to conduct additional sufficient research trying to determine whether individuals who may be of no foreign intelligence interest at all our us persons. this is raises concerns, first we would be asking training nsa analyst to conduct any verification research on potential us persons who are not a target of investigation. from a civil liberties perspective we find this unflappable. the analyst began to be shifted from intelligence focus areas.
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the dni has made clear it would not justify such a diverse of resources, particularly at a time when we face such a serious threat and even if we decide these were justified and even if we had the limited staff this problem , we still don't have the resources to come up with a measurable result because it would be impossible to determine the identity of every communicate on an email leaving us a significant number of unknown identities after substantial research. with that, i'd like to turn it over to mister adams. >> chairman grassley, members of the committee, thank you for the opportunity to be here today and you about this national security program. with mister brooker's introduction as a backdrop we want to turn to a discussion of why it became necessary or virus action 702. the intelligence surveillance act or fisa was passed in 1978, creating a way for the government to obtain individualized probably cost base court orders for electronic surveillance of suspected spies, terrorists and foreign officials located
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inside the united states. what was originally acting fisa congress largely carved out a fisa regime surveillance directed at foreigners located abroad. the reason for that course is foreigners located abroad are not protected by the fourth amendment while individuals located inside the united states are. congress accomplished this distinction in large part by defining electronic surveillance based on the technology in existence at the time. in the early 1970s, overseas communications were primarily carried by satellite. fisa originally passed in 1978 did not require a court order for the collection of overseas satellite communications. to give you an example, in 1980 nsa intercepted a satellite communication from a foreign terrorist abroad, no court order was required to intercept these communications. however, by 2008 technology has changed considerably. first, us-based services were
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now being used by people all over the world.and second, the overseas communications that in 1970s were carried by satellite were now more commonly carried by fiber-optic cable. to continue my earlier example, in 2008 that same terrorist was communicating by using a us-based email service, traditional fisa court order was required to compel a us-based company to assist in the collection. and under traditional fisa, the court order can only be obtained a study showing of probable cause the target is a foreignpower . this is a difficult, time-consuming and resource intensive process. in sum, because of changes in technology before section 702 is connected to the same research intensive legal process was being used to conduct surveillance of foreigners located abroad not protected by the fourth amendment as was being used with respect to individuals located inside the united states are protected by the fourth amendment.
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by acting section 702 in 2008 and renewing it in 2012, both times with open public debate and significant bipartisan support, congress directed this anomaly and restore the balance of protection established by the original statute. although i won't go into extensive detail in my remarks regarding the legal framework, i will note a few key items. first, the statute requires revocation from the attorney general and director of national intelligence authorizing the types of foreign intelligence information the intelligence community may acquire. second, the statute requires are called training procedures and minimization procedures. the charting procedures in the attorney general guidelines set forth the rules by which the intelligence community ensures only foreign persons abroad are targeted for collection and the
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minimization procedures protect us personal information that is incidentally acquired from the targeting of foreigners abroad. finally, the fisa court reviewed each certification to make sure the governance program is consistent with the statute and fourth amendment. we have the classified and publicly released redacted versions of all these documents including the most recent opinion to ensure the public good understanding of how we use this authority. and importantly, the government section 2 program object to rigorous and frequent oversight by all three branches of government. the first line of oversight and compliance is within the agency itself. the vast majority of incidents of noncompliance reported are self-reported by the participating agencies. in addition, the og and od and i induct reviews focusing on compliance with targeting procedures as well as on collected data and on dissemination of information under the minimization procedures.
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further, we have regular engagements with an extensive reporting to congress about section 702. for example the judiciary and intelligence committees seek relevant orders and opinions of the court associated with readings and descriptions and analysis of every compliance incidents. and importantly, the fisa court itself checks our work through the annual recertification process and regular interactions regarding instances of noncompliance. the members of the fisa court our regular district court judges appointed by the chief justice to serve on the court in addition to their regular district court responsibilities. as we've now seen from numerous declassified court opinions, their review of the governments compliance with section 702 is exacting and thorough. as director brooker indicated reviews of the program conducted by doj and od and i showed her rates are low, consistently less than one percent and we have never
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found intentional violation of the program and as the chair and ranking member indicated, this is in our own conclusions. in 2014 the bridal civil liberties board confirmed these findings, the board unanimously stated and i quote, and was impressed with the rigor of the government's efforts to ensure that it requires only those medications it is authorized to collect and that it targets only those persons is authorized target. you find errors in compliance but when that happens we ensure that they are reported and corrected. and with that background in the program i'll turn my colleagues from the fbi who will discuss the fbi's implementation. >> mister chair and ranking member, committee, good morning and thank you for this opportunity to discuss 702. it's an extremely valuable tool for the fbi. every fbi division conducting national security investigations benefits from information conducted pursuant to seven to whether
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that information is shared as a tip or whether the information is collected from a target relevant to an investigation. let me share with you an example which i exercised at my discretion as an original classification of authority that can be just classified and help the american people better understand the value of section 702, especially with respect to isis. in october 2013 the fbi started investigating sean parker, a foreign person trinidad and tobago done at after he posted comments online expressing his desire to commit an attack against western interests. as in any investigation we use the range of investigative tools and techniques including section 702 in the investigation. he did this in an effort to detect any attack planning that was underway and assess the extent of his influence. in november 2014, carson traveled from trinidad and tobago to syria and became increasingly vocal online.
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the fbi's investigation including information collected pursuant to section 702 revealed that was a trusted member of the prolific isis network. carson was a key player in the sport, the network uses the internet, more importantly social media to distribute or let the amounts of english language terrorist propaganda. they encourage their online followers to carry out attacks in the united states. they use social media daily and directly in communications with people rather fire to spread the message to encourage people to attack. carson was a native english speaker and he even appeared in an isis recruiting video. this isis network identified american military men and women, posted their names and addresses online. instructed their online followers to quote, kill them in their homelands, be had them in their ownhomes, stab them to death as they walked
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the streets . carson personally encouraged his followers to attack us police officers, us military bases located in colorado, ohio and soft targets in new york city, chicago and los angeles. information obtained through section 702 revealed not only parsons propaganda but also was instrumental in identifying additional members of persons network. the fbi share this information about parsons network with the rest of the us intelligence community, we also shared it with trusted international partners. >> sharing parsons contact with our international partners is critical as it led to the identification of additional isis facilitators and supporters in those countries. and it potentially prevented attacks in those countries as well. carson was eventually killed in syria september 2015. >> let me talk next about the fbi's practice in 702
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collection. in regards to that collection, the court remembers that the fbi received a small fraction of the total collection that nsa requires under this program. and in fact the fbi only receives a small percentage of nsa collections and none of the upstream collections. the reason for this is that the fbi can only request and receive section 702 collections if the selector, that is a unilateral social media handle for example is relevant to a pending full investigation. the fbi cannot receive section 702 collection during either preliminary inquiry or assessment. >> as a result all of the fbi conducts significantly more us security than an essay. those queries are running as a small fraction of the total 702 collections required by the us government. >> in other words when the fbi is a us person identified through our database, that theory is run against only fbi 702 collections and obtained during fbi full investigations and not the
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total collection maintained by nsa. >> i'd like to discuss the value of 702 us persons can help lay in helping the fbi combat threats of isis. the intelligence community and fbi utilize 702 to require communications of isis members located overseas. after those communications are collected, they are retained in our database and are available for authorized fbi agents and analysts to query just like any other information we gather over the course of previous investigations. later in the lead suggest a us person may pose a threat, one of the best investigative steps to search existing collection to determine what kind threat we are dealing with. this is what helps us connect the dots. >> finally i'm aware that subsequent 702 collection programs has suggested the fbi should obtain a warrant before carrying a us person
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identified under 702 collection. imposing a requirement would severely for operations creating an unnecessary barrier between the fbi and spread information that is already in our possession. >> this is in direct contradiction to the recommendations of both 9/11 and webster commissions. i'm happy to answer any further questions you may have about this particular subject in the course of this hearing. >> with this point for allowing me to make these remarks. and now i'll turn it over to mister morris. >>. >> mister chairman, ranking members. >> thank you for this opportunity to speak with you today about the amendments act of section 702. which as you heard is a critical national security authority. as you know section 702 it may only be used by the intelligence committee to target foreign persons located outside the united states. my name is paul morris, on the general counsel for operations at the
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intelligence community for almost 30 years and have been involved in the nsa communications section 702 since the law was passed in 2008. every day i have the opportunity to see the importance of 702 to the national security. i also participate in the robust oversight regime that governs section 702. those two subjects i would like to speak with you about today. section 702 is one of the most valuable operational authorities the intelligence community has, it's responsible for thousands of intelligence reports per year and terrorists recent examples of section 702 values. >> nsa's analysis of section 702 collection discovered the communications of a member of a major terrorist group in the middle east who is communicating with an extremist in europe who is sharing ideas on how to commit a terrorist attack. specifically nsa discovered communications where the individual in europe was discussing the purchase of material called a suicide
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note. nsa share the critical information with european partners in an attempt to disrupt further attacks against the us and allied countries. they also use 702 learn about section 702 collection provided information that was key to interdicting shipments of prohibited groups by the target country. the usefulness of section 702 goes beyond finding terrorists and stopping substantial goods. today i can share for the first time publicly an example of house section 702 protect the american public when they use their smart phone. in 2016, thanks in part to nsa section 702 collection the agency was able to obtain intelligence on a foreign government state-sponsored application that impacted cyber security and was not publicly known. because of this discovery, the was ultimately removed from the phone application marketplaces area this last
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example illustrates how all of us are better off because of section 702. the other aspect of section 702 i would like to discuss today is the robust internal oversight of the government program. the oversight makes the initial decision to nominate a foreign person for targeting. nsa analysts must conduct research to determine whether the proposed target, a foreign person located outside the united states is likely to communicate foreign intelligence information is relevant to a certification that has been executed by the attorney general and the director of national intelligence. after the analysts expect initial determination, two other nsa employees who are often trained in the proper part of section 702 must review the proposed targeting before the targeting occurs and finally a copy of the targeting sheet will be provided to the department of justice and od and i for
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external review. >> in addition to the targeting process, nsa general counsel works hand-in-hand with animals and operators in every stage of the product and targeting reporting to ensure compliance with the law in the court approved procedures. >> we also have a separate compliance which directly performs reviews of nsa personal access to and use of 702 information. the compliance group examines 702 action on a more problematic basis and looks for ways to further improve the agencies compliance posture. finally we have office of the inspector general a broad and independent authority to review 702 activities for compliance and procedures. this leads me to one very important and recently suspected finding that mister mentioned. nsa's inspector general identified a compliance matter that ultimately led to our announcing of the suspension of a belt collection.
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the committee will recall the communications while operationally valuable raised privacy concerns. we terminated the collection after a comprehensive review, waived the operational loss against suspected improvements in our ability to comply with procedure. ultimately we concluded we could stop collecting communications but retain the aspect of section 702 collection that is currently providing the most current operational value. in short, nsa extends significant resources examining its use of section 702 to ensure that the program is both operationally effective and is also protective of americans privacy. thank you and i look forward to your questions. >>. >> as i indicated, we will have five-minuterounds . mister evans, before i answer your question, this background because some
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people have suggested that the government should have to get judicial approval or even a warrant before searching lawfully. collecting, section 702 information using us persons information such as names, phone numbers or email addresses. particularly in non-national security investigations. so what is the administration's view about whether there is any legal or constitutional reason why this is necessary and what would be the impact if congress decided to add a warrant requirement for agents to conduct these database checks. >> thank you mister chairman. the executive branch has outlined in several filings and in court proceedings that are public what our position on this is as a legal matter, which is legally speaking under both the statute and fourth amendment of the
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constitution, a warrant is not required to conduct these so-called queries. and i think the first thing to understanding why that's the case is understanding what a query is. when we talk about a us person query of the 702 data, we are not acquiring any new information. we are not conducting any additional surveillance. simply a targeted review of information already in our possession that we gathered through the surveillance previously of a foreigner located overseas. and that matters for fourth amendment purposes because whether a warrant is required under the fourth amendment, it matters on how to acquire the information. here all the information was a targeting of foreigners located abroad and collected for foreign intelligence purposes and every court to consider this issue and that's not just the fisa court, that's also federal district court have reached the conclusion that as a legal matter, a warrant is required to collect that
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information in the first place and therefore is required to review it after we subsequently collected. as a policy matter, in imposing awards requirement would effectively as a practical matter prohibit these queries from being done for a wide range of reasons. first, probable cause is a very high threshold and a query is a baseline investigative technique that is used in the early stages of an investigation to rule someone in, rule someone out, tried to connect the dots. at that stage, it's often the case that probable cause wouldn't exist. that's one reason is problematic. the second reason is time and volume. because of the scene with which these queries need to be run to connect the dots in the volume with which they need to be run requiring a court order for them effect that we run the entire transport process to a halt. >> mister garrison mister morris, before i ask you a question, in a recently declassified april 2017
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decision, the fisa court revealed that it was concerned about an institutional and these are their words, lack of candor in nsa's part concerning its reporting and compliance with section 702 minimization procedures. in addition, the court seemed to have very harsh words for the fbi saying and i quote, the court was concerned about the fbi's apparent disregard of minimization rules and whether the fbi may be engaging in disclosure of raw section 702 information that had not been reported,end of quote . so my question, i think it's really important and assigned
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to some people, what are the nsa and fbi doing to address these specific concerns of the court? this will have to be my last question so answer that if you would. >> nsa thank you mr. chairman.. i'll go first. we take our duty of candor to the surveillance court as well as to all our overseers very seriously. obviously i cannot for judge collier what he meant specifically when she wrote that in the opinion. but my understanding actually of what happened was as follows.we had usually identified that we had made some errors of us person queries against our collection so since 2011 are minimization procedures have prohibited outright any us person queries running against upstream collection, largely because of the balance of communication. they reported the initial
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query, i believe in 2015 when we made our initial report that the office of the inspector general as well as our compliance group had several reviews on going to try to determine the scope and scale of the problem. so during the course of filing the renewal for those 702 certifications that were pending, the court held a hearing in early october 2016 when asked about various compliance measures to approve the improper queries and we reported on the status of those investigations as we knew them to be at that time. >> about two i think were three weeks later, the office of the inspector general completed its follow-up review of us person query to discover that the scope of the problem was larger than we originally reported. it is soon as we identified that the problem was harder than we thought it was, we notified the justice department and odie and i and in turn the court was
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notified and the court held a hearing on october 25 to go into further detail about the problem and that ultimately led to a couple of extensions of the certifications. and ultimately our decision determines the collection in order to remedy the compliance problem. my sense is that the institutional lack of candor of the court was referring to was really frustration that when we had the hearing on october 5, we did not know the full scope and scale of the problem until later which was reported again roughly october 24 which led to a hearing on october 25 what was the day before the court was supposed to rule on extending the certification so that was my take but certainly the agency believes it's absolutely essential to have full transparency with our overseers in terms of how we are using the authority, how it works and to report when we make errors. >> thank you senator. the fbi takes very seriously
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its reputation for candor whether it's before this committee or before the fisa court. additionally the fbi welcomes the oversight by the fisa court and we welcome the oversight by this and are other oversight committees, the inspector general doj and the end. it's critical to what we do to make sure that we have other eyes ensuring that we are compliant with the laws with the constitution. this particular opinion, they are sort of two general issues that were identified, first issue involved the evidence of a crime query that the court focused on. and it was an issue with respect to reporting that particular matter anytime or fashion. >> we had a situation where a national security analyst was conducting a query against 702 collection and during the course of the query identified a potential evidence of a crime involving child abuse. and following up in trying to
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determine if there was any other information with respect to that particular incident conducted a second query which could be considered a query urging for evidence of a crime. no additional information was found by the analyst but ultimately that information was passed to the appropriate authorities to ensure the victim was protected in that particular case. there was an issue with reporting that particular matter in a timely fashion so moving forward, we are going to ensure compliance with the policies already in place so that when we identify issues like this or whether we identify issues involving how we store our raw fisa or disseminate our raw fisa we will ensure our national security agents and analysts are educated with respect to those pitfalls and educated with respect to reporting requirements as well. >> thank you mr. chairman. i wanted to talk to you about the about issue in intelligence and i have my
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intelligence staff here today. we've been trying to look for the men that. let me see if i understand the issue correctly. apparently earlier this year the nsa decided to end its practice in gathering about upstream collection. in 702. if as i understand it, an example of an about is an email that includes the targeted email address in the body of the email. even though neither the sender or receiver are themselves targets. is that correct? >> yes senator feinstein that's correct. >> thank you. >> can i add is very important to remember that at least one of those centers or recipients is a non-us person outside the us. >> that's helpful, thank you. the nsa has noted the intent is, and i quote, to retain the upstream collection that
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provides the greatest value to national security. while reducing the likelihood that nsa will acquire communications of the us persons or others who are not in direct contact with one of the agencies of foreign intelligence targets. and nsa statement about upstream activities. now, comment on that approach . and would the nsa work with us on trying to work something out that covers this issue properly? i don't know that we can do that with legislatively but i like your comments. >> ma'am, from nsa's perspective, we would be very nervous about the legislative prohibition about the collection for a couple reasons. first off,the reason we terminated it , we did not have today technical means to make us comfortable that our
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analysts would be able to comply in all cases with the restriction on running us person queries. >> interruption: from that, what your statement is that nsa terminated it for that very reason. you believe that the only way to handle it is terminated overall? >> the agency has a lot of smart engineers and we think that given enough time we might be able to come up with a technical solution that addresses the court's concern and of course the other thing we would have to weigh is operationally what are we seeing in the operational environment because this is always a trade-off. there was definitely foreign intelligence lost when we made the decision. and so if we are able to recover ... >> is that notable for an intelligence lost?
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>> it's hard to say what you are not getting but using the example at the outset, certainly from a counterterrorism standpoint you would be very interested to know that two people we didn't know about already have the email address of a terrorist who practices really good communication and security, that's an interesting fact to us that we would be interested in so that while we have residents about a statutorymark . >> and if i could add one more thing, the other thing i think it's important to keep in mind is if nsa were to develop the technology for additional minimization procedures to address this issue, they would have to go back to the fisa court and seek approval so there is a check to make sure that if this is turned back on it at the appropriate time it's done so in a lawful and appropriate way what do you suggest we do about the bow, nothing? try to work with nsa on an amendment? >> we'd rather get it right than wrong, so everybody
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could comment because this is going to be a big issue. >> i think our position is we should not do an amendment and reauthorize it as is recognizing that congress and the court will weigh in again . >> and speaking for home? >> for the dni. >> i would say from the justice department's perspective, the fisa court has on numerous occasions found the collection to be lawful under the statute and under the constitution and so from our perspective, this isn't so much a legal issue as it is a technological issue as mister morris is indicating whether nsa can develop more robust technology and potentially more robust jobs. >> that the position of your agency. >> senator, obviously the more data we have the desire our disposal, the more efficient we are finding potential attackers in the united states so given the position of the fisa court, if there's a technological
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way to resolve the issue and if we would have a lawful manner with which to conduct our queries against that data sets, that would be helpful for us. >> mister morris ? >> the nsa opposes a statutory change of the point because that was the option and we would possibly have unintended consequences. >> are you saying you would opposes statutory? >> we don't think it would be a good idea at this time. >> .that answers my question. >> thank you, mister morris i've got numbers here and i want to make sure they come from nsa. in 2016 there were 3914 702 reports contained us persons identities. with that number have come from your agency? >> i believe that came from the dni transparency report but that number sounds like it was ours. >> it says that 1934 of the us persons identified were originally massed but later unmasked with specific
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requests. is it possible for this committee to find out who made those unmasking requests? >> i believe we have a request like that and i'd have to take that back but. >> if i'm talking to the russian ambassador of the united states and he's been nominated as a target, would my conversations be incidentally collected? >> on those facts, the russian ambassador in the united states could not be a target because he's inside the united states. >> with their be all work required? >> you would have to get a title i order. >> apparentlywe are following the russian ambassador if you read the newspapers . >> senator, from a legal perspective and i can't talk about specifics ... >> how can we follow the russian ambassador. >> a foreign official located inside the united states would have to be conducted
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pursuant to a probable cause based fisa order. surveillance directed. >> assume for a moment that the national security advisory and transition is talking to the russian ambassador. the russian ambassador is outside the united states, can you collect without a warrant? >> foreigners abroad. >> outside the united states, could you collect without a warrant? >> it before there was recently suspected to communicate foreign intelligence communication relevant, then yes. >> if he's in the united states, you can only collect if you have any traditional warrants, is that correct? >> a fisa court warrant. >> is it possible to find out if mister graham was incidentally collected talking to a foreign leader, is that possible? >> senator, we would have to comply with the terms about minimization procedures which restrict us from deliberately. >> am i entitled to that information?am i entitled as the center to know other
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or not the intelligence community monitor conversations i had with a foreign leader abroad?>> the minimization procedures. >> and i entitled as the united states senator to know if my conversations with a foreign person overseas was collected and if somebody made a request to unmask me? >> it as a member of congress you have, there's an intelligence report, that reports on activities that include you and a foreign minister, by default your identity is going to be massed. if there's a request to unmask a congressional identity, there's a process known as the gates procedure that would established in the 1980s by a former dci law brigade that requires it to seek approval from the dni before that . >> am i entitled to know if that happened to me? >> and there's a gates request, congress is notified . >> if nobody's notified me, i
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assume i wasn't collected upon. >> generally those notifications are going to go to the leadership and the leaders of the intelligence. >> i'm not asking about the leadership. i'm asking about me. i wantto know if i'm overseas , if i'm talking to the russian ambassador in the united states apparently you all are listening. if you believe the paper. i don't know how your listening i assume you've got a list, i don't mind if your listening. i do mind it's a conversation and use it against me politically, is that possible under the current system? >> i completely agree any political use of intelligence is wrong. >> if you agree whoever leaked the conversation between mister flynn and the russian ambassador did a lot of damage to mister flynn? >> i think we would agree at this table that any leak of classified information causes an insanity. >> let's get back to 702. i'm talking to a foreign leader, if they're collecting
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i want to know is it possible for somebody in the administration to get a hold of the conversation and unmask me, is that possible? >> yes, ... >> is it possible for me to know if that happened? >> as mister brooker explained, the notification that happened ... >> i'm talking about me, can i find that out, yes, sir no? do i have the legal right as the united states senator to find out if my government is monitoring conversations between me and a foreign leader? and if anybody had access to that conversation? >> we have worked with the chair and ranking member of the intelligence committee to support member requests for questions on gates. >> is it legal or not to make or me to make that, does the law allow me to get that information? >> it's my understanding we
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have that request from you and we are processing it. >> months ago. am i ever going to get it in my lifetime and if you're not going to get it to me, tell me why . >> i'm not stopping you, i just wish my colleagues would appreciate what he's trying to do here and get him a little extra time. proceed. >> what's the deal? >> i want you to proceed with an answer. >> yes sir. >> if there's anything in this country people will do, is entitled to at least an answer to the question. >> i'm violently agreeing with you. so if i were you i'd answer my question because he's mad. so what's the answer here? am i ever going to get to know the basic facts because if i'm going to be monitored overseas, maybe there's a good reason to monitor the person i'm talking to. i just want to know what consequence as a senator goes my way, if somebody in my own administration, the other administration outside my party doesn't like me, should
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i be worried about that conversation following in the hands of political people that may one half day be used against me. >> as a career intelligence professional idon't think you should be concerned. >> answer my question then . i'm concerned until i get an answer. >> we have your request and we are working on it. >> what is keeping you from answering that question?>> your request request and information about you which we tried to narrow with your staff. they said anything and everything which would require every news clip. >> i don't want every news clip, i want to know conversations with herand leaders that were monitored . >> so we specifically asked if working with your staff if we could narrow it to a gates request. and they said no. we are working with your staff to try to get you an answer as quickly as possible. >> is there a legal reason you can't answer that question? >> not a legal reason.
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>> are you satisfied? >> senator, i think senator franken ... >> senator klobuchar. >> whatever senator feinstein says, go ahead. >> the earlybird. >> senator klobuchar. >> thank you very much, thank you to the panel and along the lines of following up on what senator graham was talking about, and that is our oversight in two more general terms. i know that senator coates testified before the senate intelligence committee recently and he said that section 702 surveillance provides critical foreign intelligence that cannot properly be obtained throughout other methods and i agree that that is true and maybe i will get to some examples from you about that. but as you can see from the grams question, we still have a lot of reason to want to do
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oversight on the half of the public and notably your joint testimony urges congress to reauthorize the fisa amendment without a sunset provision. as you know, this would effectively mean that congress would not have to take a fisa reauthorization in future years, we would effectively, we could have hearings i guess but no leverage to get changes or to work on things. we wouldn't have the opportunity to discuss what is working and what is not working as we did today. so can you provide more context as to why the administration is requesting that congress reauthorize these fisa authorities without a sunset provision? and is that set in stone? >> i'll start. i think we have nearly a decade of fisa 702 experience under our belt. i think review after review
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has shown there have been mistakes but nothing intentional. i think the statute is built with a significant amount of both congressional and public transparency built into it. about whether or not there is a sunset, this body through public oversight and classified oversight has the ability to do the exact oversight you are talking about. we are required under law to produce opinions to this body through compliance and to come to requests so i think there are mechanisms built into the law to allow congress to do the oversight, whether there's a sunset were not. >> but as mister graham has pointed out we are dealing with important privacy issues and that balance between security and privacy and i think what we have decided over the years with bipartisan support is that we want to be able to have that leverage to be able to make changes and it's much harder when the law is in permanently and in fact a lot of our laws have sunset
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provisions so i guess i go back to is this set in stone that the administration doesn't want to have a sunset provision in here? >> if you are asking the question would you like a sunset or no bill at all i would say we would like a sunset x that is a very good answer. mister evan, do you want to add anything? >> i would reinforce one of the points that mister brooker made about the continual oversight of congress to the sunset.. we produce it as mister indicated not just significant opinions but detailed reports at least twice a year on every compliance incident under the section 702 program. those are then subject to briefings with the judiciary and intelligence community and staff has appropriate so from our perspective, it's a continual oversight process congress is engaged in and should there be something troubling or alarming that congress becomes aware of during any of those briefings or reports, it's always congress prerogative to act
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during that period with or without a sunset. >> you did hear senator feinstein's remarks that she would not support this without a sunset. okay, very good with many of us join you. >>. >> senator, i think we all agree that there needs to be a balance to strike between protecting the civil liberties of americans and protecting the american public from attacks as well. >> we have all stated very emphatically the value of this section. in terms of hoping us protect the american public from attacks, counterterrorism, cyber attacks and so forth. it is an absolutely critical toolfor us . at the same time we respect the privacy issues this community has raised. and just act a lot like holly has said, in addition to the congressional oversight, the oversight from doj, we all have our internal validation procedures we comply with every day. we have our monthly audits that are conducted. we have the training sessions that are conducted so there
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are a variety of compliance and oversight measures that are currently in place. and the lack of a sunset provision will not do away with those layers of oversight. norwill it do away with the authority of this committee or any intelligence committee . >> mister martin . >> one of the reasons we are seeking a permanent reauthorization instead of having a sunset provision is a sunset provision leads the status of the law somewhat unsettled so you don't know whether your provider that serves as a 702 directive, is this something i don't have to worry about the next year after that or after the next sunset provision so we want some sense of continuity for, because it's not just the government implementing this. the providers have requirements and it's also important for the intelligence professionals to do the work every day. they permanent reauthorization is a vote of confidence that they are doing the right thing and doing the work well and that
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the tool that they use to produce valuable foreign intelligence is going to be there come january that's another reason we are primary. >> i think it's pretty clear senator feinstein as the former chair of the intelligence committee and i'm someone from law enforcement. i have respect for the people doing this work and i tended to be someone that has cited more on the security side in terms of the necessity for the reauthorization support for the work but i do think when we have these unsettled issues still, i don't think everything is settled as you can see from the exchange with senator graham. which is why many of us do favor the sunset provision staying in place but i appreciate your good work, thank you. >> thank you mister chairman thank you to all of you for being here and for your testimony today. i want to be clear at the outset that there are good reasons for us to have concerns. about the application of this law. the american people have long understood the power of
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government can easily be abused area a special committee of the united states senate concluded a few years ago about 40 years ago that in every presidential administration from fdr all the way through next and, the administration immediately preceding the work of that special committee. the intelligence gathering agencies of the federal government have been used to engage in political espionage. this is of course significant. it's obvious concern to anyone who works in the city. or incarnate in any way. in addition to that, there is a reason why we have the fourth amendment. there are all kinds of implications that extend far beyond the political realm. the rights of the accused need to be protected and notwithstanding the fact that we want government to be able to do its job to protect us from those outside our country who would harm us. we also want to make sure those same authorities can't be used are individuals.
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the fourth amendment makes government less efficient. it makes it more difficult to be the government. but it's also very necessary and any in menstruation, regardless of which political party is at the habit. it's important that we not lose touch with the fourth amendment, either to the letter or spirit thereof. action 702 of the foreign intelligence surveillance act amendments authorizes the surveillance of foreign intelligence activities. that definition includes information that is directly related to things like national security and natural defense, things that are directly related for example to a potential terrorist attack but it also includes information that is relevant to the foreign affairs of the united states. this latter category is broad. it's much broader and it is broad enough, i think, to be used to target just about
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anyone abroad, including a political activist, a human rights volunteer, businesspeople, students, journalists, doctors, just about anyone traveling abroad. at a hearing before this committee earlier this year, the fbi director testified that it would not be problematic for the fbi to limit collection for foreign intelligence information to information that is itself limited much more to the national security universe. so let me start by asking mister evans and mister brooker, would this be problematic, is there any reason why we couldn't and shouldn't limit the use of section 702 two something that's related to a national security threat. >> thank you senator. i am familiar with the
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exchange you had with then director colby during that hearing and while i certainly can't speak for what he was thinking with his answer, as i understood his answer i think he was referring to the fbi's use of section 702 which has mister gaddis described, the fbi can only receive section 702 information when it's part of an authorized investigation that they are conducting as typically relates to the kind of threats that director me described. as you talking about potentially changing the definition of foreign intelligence information more broadly, i think that's something that would be difficult to do in an open session here without having the ability in a classified session wish we could get into tomorrow to describe or you the pacific types of collection that are ongoing now and how any potential changes to the definition of intelligence might affect that. >> if section 702 currently used abroad to target people or who are themselves not related to national security
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threats? >> action 702 and i will walk through the statute briefly, section 702 can be used to collect on foreign intelligence information as defined by statute. within that definition there are certifications executed by the attorney general and director of national intelligence that describe the specific types of foreign intelligence information appropriate for collection. those categories in the certifications are classified so i can't get into them but importantly as to your point about targeting any incident innocent for overseas, as mister morrison indicated if a foreigner overseas can only be targeted under section 702 if there's a reasonable belief that person is likely to communicate or possess foreign intelligence information as it results or relates to one of the specific certifications. that justification laying out why that person is likely to possess that information has to be documented by the analyst and is subject to
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backend auditing by the department of justice and director of national intelligence to ensure appropriate and related to the topic of the certification. >> my time is expired but mister brooker didn't have a chance to answer that. is it okay? >> thank you, like mister evans i think this is best a discussion for tomorrow where we can go into detail about the type of targets we are after under 702. >> thank you mister chairman and before beginning i like to thank you and the ranking member for holding today's hearing. the subject of today's hearing strikes very hard at the heart of the debate about how to safeguard national security without trampling americans fundamental right to privacy. as i've said before but i think it bears repeating, when the american people understand the scope and scale of our surveillance programs, are better able to judge for themselves whether the government is appropriately balancing
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privacy and public safety. that's why i focused on the issue of transparency most recently, back in 2015 when congress debated and passed the us a freedom act. >> usa freedom was a bipartisan bill to reform our surveillance programs and i was proud to join my friend senator dean heller in writing the bills transparencies provisions. when the public lacks even a rough sense of the scope of surveillance, they have no way of knowing if the government is writing the right balance. so we wrote the provisions that now require the government to issue a detailed annual reports about the information collected under our surveillance authority. for certain surveillance programs the government must also say how many times through that information the search for americans communications and that is important stuff.
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as a former general counsel for the office of the director of national intelligence said quote, with chrissy inevitably some suspicion and the possibility for abuse so in my view transparency is critical to gaining the public's trust and guarding against misuse. transparency was critical with respect to the reporting required by us safely and it is critical with respect to the number of americans inadvertently swept up in 702 collections. so i remain disappointed that despite bipartisan demand for this information, we still do not have even an estimate of how many americans have had their phone calls or emails collected under section 702. members of the senate intelligence committee have asked for an estimate.
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civil society groups have asked for an estimate. representatives simpson and brenner have asked for an estimate but no one has received a satisfying answer. mister rucker, do you agree with former od and i general counsel bob with that quote, it would have been less public outcry from the snowden lease if the government had been more transparent about its activities before hand. >>you agree that without some form of transparency, we risk suspicion and also the possibility for abuse ? >> i think we all agree that transparency is important. you can see in our transparency report that rereleased largely with your leadership that we went beyond what the law requires for the announced information and numbers we reported and that transparency is continued in its administration with the release for the first time of the targeting procedures used under these procedures. >> i want to sort of stress
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that our inability to release a number on the number of incidental usda's that have been collected is not for want to try. and we can discuss this in more detail from our own and nsa can walk through sort of the herculean efforts they taken over the last 18 months to try to find a way to do it that's responsive . coming to the conclusion that there's not a way to produce a transparent number that's meaningful to the debate, that is not something that's wrong and accurate. it's sort of predicated on, we're happy to get into more detail. >> for example director coats said it would be infeasible to come up with a way to count the number of americans whose communications are collected under 702 but help me understand this, is it your contention that our intelligence agencies while
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they are capable of collecting mass quantities of information, phone calls, text messages, emails and sifting through all that data for specific information name or phone number but the agencies are somehow not capable of counting how many americans are swept up in that surveillance? >> that's right senator, but if you look at an email, we know who are targets are and our targets are going to be in that email. we don't know necessarily who are targets are talking to and you can't tell whether you know, is a us person or not, they simply on an email address. we know our targets are foreigners overseas but we can't identify about significant additional research more. >> i'm out of time but i would ask if it's possible to come up with an estimate and not specific numbers and it seems to me that we are really already capable of coming up with an estimate. >> 2011 opinion the fisa
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court revealed that the nsa previously reviewed a random sample of quotes, internet transactions that determine how many of those communications were only domestic. and i think we can come up with anestimate. thank you mister chairman for your indulgence . >> center cornyn. >> thank you mister chairman and thank you for the witnesses being here to talk about the crown jewels of the intelligence community when it comes to keeping america safe. i can't help but just offer a thought mister brooker on questions my friend senator franken asked about wanting to identify the number of americans incidentally collected against. as i understand from the director of national intelligence coats, basically the reason why the intelligence community cannot produce that is because by structure design, by law and
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regulation, the intelligence community is prohibited from gathering intelligence against domestic targets. like american citizens, without a court order and a showing of probable cause that sometime has been committed. so it strikes me as not intentionally unfair but unfair in the sense of the design and structure of the intelligence oversight and regulatory framework to then ask you to produce the names of americans incidentally collected against when the whole law is designed to limit if not to prohibit that collection absent a court order so i know that on the intelligence committee which i had the pleasure of sitting on with senator feinstein i know senator wyman has been an ardent advocate of producing a number but i think it would create if it was possible which i agree that under the circumstances
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it's not possible to come up with a reliable number, for the reasons i mentioned, but i think it would also add fuel to the flame of some of the conspiracy theorists who seem to think that our intelligence community is doing things which it is legally prohibited from doing and thank goodness for that. and that would be targeting american citizens without observing the formalities of constitutional rights under the fourth amendment. so i think under the circumstances, the political environment we find ourselves in is how do we preserve the crown jewels of the intelligence community under 702 and reauthorize this important tool used by the fbi and by our intelligence community and also reassure the public that the oversight that takes place whether it's internal at the nsa or whether it's congressional oversight hearings here and in the intelligence committee or the judicial oversight that takes place before the foreign intelligence surveillance court, how do we reassure the american people
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that those oversight mechanisms, those checks and balances are working the way they should in order to protect civil liberties of american citizens while still empowering the intelligence community to do what you need to do and what we need to do in order to keep our country safe so the kinds of questions that senator graham was asking i think our if in fact warranted if the answer is not what i would hope it would be that there is some, that there are other inadvertent or intentional violations of the law and the regulations that would certainly help to undermine confidence and make it much easier for congress to do what i believe we have to do which is to reauthorize this very important statute. that would include any unauthorized unmasking of names under the previous obama administration, we need to find out what the facts are there and we need to if
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in fact it's not warranted by an investigation, we need to make that clear because that's the kind of thing that i think does undermine public confidence and we need to undermine congressional confidence which makes it harder for us to do what we need to do when it comes to reauthorizing this legislation. finally, let me say i know it's hard to debate these topics in public because so much of what you do is classified and necessarily so and based on a need to know. but i would ask mister gaddis and mister morris, would you add a little more color and context to some of the success stories if you can of how this tool has been so useful and protecting the country? >> yes sir, i'd be happy to. i spoke about an example in my opening statement regarding an individual overseas who was part of an
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ice's participation network. i can walk the committee through another example which occurred overseas and also impacted americans overseas. this occurred in december 31 of last year. it is central turkey. there was a particular individual who was targeting a nightclub in turkey and was going to conduct a terrorist attack at that particular nightclub. he did in fact conduct that attack as i'm sure you know by now. i was responsible for the deaths or injuries of 38 people from 14 different countries. one of those individuals was an american who was shot in the hip. and working together with our foreign service partners in turkey, we were able to identify the individual who conducted that attack. and we were able to go off on section 702 collection onthat person . >> based on that election. we were able to identify where the individual was located and pass that
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information to the appropriate turkish authorities who then apprehended him, took him into custody. so it was instrumental in helping us find an individual who perpetrated an attack in another country. does find an individual who had shot an american citizen and had helped us prevent that individual from acting anymore based on his own planning or ideology. >> i think my time is up to mister morris we will save that for another time but i would just encourage you all and i know that something that the ... go ahead, mister morris. >>
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we noticed that terrorist received an e-mail message from somebody indicating that it look like they were involved in imminent attack plan here in the united states. we took that information to the fbi. the fbi subsequently determined that the individual, chairwoman by the name of us ozzie, and his confederates are planning to do a bombing avenue city subway. that tip from 702 allowed us to avert a very credible and real threat against the new york city subway. part of the reason, it's a dated examples because we feel now that we're not going to reveal sources and methods that would help the adversary. but again it's a difficult process but we certainly appreciate the need for examples
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like this so you make people understand how we are actually using the authority. >> senator durbin. >> thank you, mr. chairman. first question, why are we here? i think we need to reflect a little bit on history. after the 9/11 terrorist attack the bush administration secretly began spying on american citizens in the united states without judicial approval required by the constitution and without the authorization from congress. years later this committee her dramatic testimony from former deputy attorney general jim comey about the efforts of white house chief of staff andrew card and white house counsel alberto gonzales to pressure attorney general john ashcroft into reauthorizing the surveillance while he was hospitalized. after the "new york times" revealed the existence of warrantless surveillance programs, the bush administration demanded that congress passed legislation authorizing the program. this led to the fisa amendments act in 2008. 2008.
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i opposed it. as well as the reauthorization intellectual. i still have serious concerns that it doesn't include adequate checks and balances to protect the constitutional rights of innocent americans. we all support during the intelligence community the tools they need to keep america safe we also live in a democracy. all of us have sworn to uphold and defend the constitution which limits the power of government as senator lee has said. so mr. morris said in defining 702 in the simplest terms, it is only used to target foreign persons living outside the united states. if that were all, we wouldn't be talking about it. i think most of us would agree. keep america safe from someone outside the united states plans to do us harm, we want to know about and stop them and we want to stop them further perhaps by arrest or even more. but we also know that caught up in information collected of the so-called foreign sources is
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information about americans. did you read the lindsey graham? did you note the emotion in his voice? as he thought about the possibility that his privacy was being invaded by his government, that someone might use that information through 702 against him as a united states senator? you just wait for something which is rare and the united states senate. this chairman royce said let's extend the time at the center to keep asking because we are all concerned about that because it's our privacy that senator graham has raised. but what about the privacy of the americans who are not in this room? now we run into another problem. senator franken asked to the most basic information, how many americans have been swept up into the 702? you can't tell us. how are we supposed to believe that transparency is really the guiding principle and that we have such great data collection if you can't even identify for us how many americans have been
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innocently swept up into this effort, and can't answer senator graham supposed basic question. so mr. brooker, how are we supposed to have confidence that you are being careful not to involve more people unnecessary to keep america safe, not to avoid the constitutional requirement of a warrant if you want to do something about durbin or grandpa frank a someone else? >> it's a hard question it. i think like you to gwen at this table is concerned about our privacy and the privacy of our families, my folks in arizona, my in-laws in alabama pick something we think about that unit that and take very seriously. i think that's why the oversight of this committee, the oversight done by the fisa court and the department justice is so critical to this process. i think while we are unable to provide an absolute metrics on the number of u.s. persons, we report a lot of information to this committee and classified forum and a lot of information
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publicly relating to the number of u.s. persons -- >> senator graham couldn't get the basic information about it himself. i've been with him on trips overseas and all of us, we are in conversation with foreign leaders on a regular basis, the notion that our government has captured the conversation is something we ought to know about. if you try to do in the united states you would need a warrant. if you did when we are overseas, apparently not. he's asked a basis russian which remindof months has gone unanswn this process. so i guess they comes down to the very basics. we have seen over time since the creation of these fisa act amendments a broadening of the power of the united states, the lifting of requirement for warrant from the fisa courts. we have given you more and more and more authority. all we're asking is how carefully are using it? how closely are you following the constitution as you use it? what efforts are you making to
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protect the innocent americans have done nothing wrong who just happen because of telecommunication or his name is mentioned in the communication and you tell us hard question, we'll get back to live. it is hard question but it's really fundamental. i think it raises questions about what we need to do if we truly want to uphold and defend this constitution and still keep us safe. thank you, mr. chairman. >> thank you, chairman,, thank you all for being here. to follow on the point that senator durbin was making, each one other agencies has internal administrative procedures that allow the agency to police the use and misuse of 702 information. we on the judiciary committee do not have a comprehensive or consolidated statement of what your own intro protection and safeguards are. i would ask you as a question
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for the record to get your heads together and create a document that explains for us all the different ways in which you, through privacy councils, inspectors general, procedures, police, the use and abuse of 702 information. i think part of what we are seeing here in terms of the frustration is we don't have a clear exposition of that and you ought to be able to give it to us. that's pretty straightforward stuff. so with the children's permission on point asked that as a question for the record. -- chairman enzi permission. there are concerns about the unmasking of individuals who turn up as, i'm a former prosecutor celibacy unindicted co-conspirator, not a real name, just subject and/or whatever in the intelligence. there's a specific allegation
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that has been floating around that the conversations between michael flynn and ambassador kislyak came into the white house with flynn masked, and that a decision was made in the widest to unmask him which then led to leaks to the newspapers and so forth. i think we can all agree that an unmasking request for a political motive that leads to a leak is not a good thing. but it's important to us to get the facts of that right. so tomorrow when we are in class i said i want to give you a preview of coming attractions. i would like you to be able to answer the question of whether or not that state a fact actually transpired. what happened? did the name come in mast or unmasked? wasn't mast or unmasked as the result of a request out of the white house and giving information about the leak? you don't need a internet now
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and a someone could want to go back at you because a lot of stuff you tell us is really classified but we hear of a classified cities would get talk about so we have to sort out which really classified and what isn't. but at least be prepared to answer that. and the last thing i wanted to mention is with respect to this question of how big does the 702 reach, penetrate into ordinary american's lives, and a lot of this i think boils down to a definition of what we mean when we say, to use again senator durbin sprays, swept up, who is swept up in this? as i understand the process, ad correct me if i'm wrong, yet identified overseas targets who you are allowed to collect on under 702, correct? >> correct. >> and you don't know who they are in touch with intel you query -- until you query that
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selector in your database, correct? >> there's a number of different ways that we can review collection. so for example, there may be a target where our analysts will review every -- >> but it takes an act of selection to pull up that review, right? spermatic correct. >> then once you have, you have your target. you have a great that's been asked however it is asked that calls of everybody who did been in touch with and then once you call that screen in, you still don't know the nationality or the location of an individual because all you have is electronic metadata and it takes individualized research to figure out the location and the identity of those people, is that also correct? >> that is also correct. >> so in order to figure out who is swept up, so-called swept up in all of this, what you would
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need to do is look at your roster of legitimate 702 targets, query every single one of them from everybody different in touch with, which would presumably be a fairly massive undertaking, and then do the address by address individual identification to figure out which ones were americans on american soil at the time. is that the problem with trying to get to this? >> i think that's right. and oftentimes there's not that electronic information to understand for the other communicants come nontargets come who they are or where they are. >> in terms of the privacy interests of individuals, the fact that their evil information is sitting in a data place, somewhere that no human being has ever looked at, it suddenly we went out and started pulling up that stuff to do this count, that is actually looking into their privacy in a different way. actually now human eyeballs on that whereas before they're just in an electronic database that made never, they may have never turned up to any human eyeball. >> correct. i would defer, would have to do
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additional research outset what innis would only do to try to figure that out. >> understood, okay. see you tomorrow. >> thank you, mr. chairman. on these questions, senator whitehouse, just destined to durbin was asking, but everybody has asked you. you can see kind of the concern on this panel. earlier this year the nsa terminated their about collection on a number of compliances relating to that data. they discovered these compliance issues. they did a broad overview of te seventh two program, and they decided about collection was too great a privacy.
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mr. ghattas, when was the last time the fbi took a comprehensive review about how to obtain searches and uses the 702 data? >> sir, we have measures in place through which we, first of all we treat our national secret agents and -- >> when was the last time you did it? like the nsa when was the last time you did a comprehensive search about how to use it? >> we have regular audits that we conduct internally and are also overseen by doj who conducts periodic audits as well. >> when was the last of? >> i believe the audits, in one of those instances, is monthly. >> and was at a complete audit of the whole program? >> it was not. it was an audit of a segment of -- >> when was the last time you had an audit of the whole program? >> i would have to get back to you. >> can you get back to me today?
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>> we can try to do that. >> please. it would be helpful before the meeting tomorrow. ask mr. brooker and mr. morris, we've heard that the intelligence community opposes the statutory restrictions on about collections. they say it's a technical issue not a fundamental privacy issue. so i ask you both come is the nsa, working to fix this technical issue or does congress get an indifferent license to engage in the future? >> senator, we are look at ways to improve the technical control so we have in place we do not have impressive a plan to try to reinstitute about, but the problem is to try to explain a
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bit earlier, is that if the operational environment changes, you know, our target start acting differently, we may determine that we need to come back up on about another statutory restriction would make that very difficult to do, whereas if we were able to come up with a technical fix that is satisfactory to the court, then being able to come back up which is be a matter of making sure that we get permission. >> went you think you would have a technical fix? >> i can't hazard a guess. i would have to get back to you, sir. >> did you want to add anything to that, mr. brooker? let me ask a question of mr. evans. director coats when he testified he said that complaints that instances like those that result in the termination of about
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collection are always reported and always corrected. well, not everybody feels that way. the fisa court recently said otherwise. in april the fisa court chastisechastising government fr failing to fulfill disclose compliances. this is their words, and institutional lack of candor on a quote, very serious fourth issue. that's kind of tough language from the fisa court. what reforms did the justice department undertake to make sure there is full and immediate disclosure of the government surveillance activities to fisa? >> thank you, senator. as to reforms and additional measures that i think mr. morris may want to comment on that because i know the nsa takes very seriously its obligations comply with the law and its
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relationship with the court. and i believe that the director of the nsa at that hearing you referenced also made some comments as additional measures that he was putting in place. i can say from a justice department perspective, as you noted and as we noted in our remarks, compliance accidents do happen. we have never found an attention one. i have been inadvertent come and can delete their frosting for us when the happen. they are frustrating for the nsa when you haven't and clearly they were frustrating for the judge. but i think the two points that also take with them it is the judge clearly indicated in her opinion are that this incident was actually self-identified and self-reported by the government to the court, much to our detriment. >> if you find one like that, immediate report to the court? >> it is routine to do so. candidly some of the issues on timing with these companies or complex matters, technologically, legally, sometimes it takes agencies time to wrap their hands around is there a problem, what is a problem and how to describe it
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to the court. we and the agencies look to do all of that as fast as possible but we also want to get right in the accurate about how we do it. >> and if i may, senator, if i may just expand on the answer slightly. in the particular query incident, the issue that led to the courts, about a station lack of candor, the timing was exactly come as you discover, is exactly correct. that was the primary issue. we initially reported the problem, i believe it was in 2015, and the report was filed with the court. the problem was we continue to do additional investigatory work, are inspector general roth office was to turn what was the scope of the problem. the full scope and scale of the query problem didn't become evident until about two and half weeks after the court had held a hearing in october about the renewal of the certification.
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when we went back to the court to say our ig finished its study, it's a bigger problem, the court naturally was unhappy because this was to information that was being presented with just before it had to rule on the certification. i certainly appreciate why -- >> the language of the court, they did not disguise their unhappiness. >> agreed. >> i wonder, i have one more, mr. chairman, if i may. unlike the nsa and the cia, the fbi can search for u.s. person communications obtained from section 702 for evidence of conventional crimes. totally unrelated to foreign intelligence. for national security. they can do that without a warrant.
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this raises some questions here. can you use that to go after things like drug offenses or tax fraud, or anything of that nature? >> senator, if i could address that from a legal perspective first and then mr. ghattas might have comments from an operational policy perspective. to the point you are raising and white is permissible in the first it's it from a legal perspective, although the collection we are doing is directed against foreigners abroad and must be for foreign intelligence purpose, congress recognized with section 702 just as with traditional fisa candidly that it's possible that national security surveillance might reveal evidence of a domestic criminal offense. that's why the fisa statute itself both for traditional fisa as well as for section 702 requires that there be minimization procedures that provide for the retention and dissemination of evidence of a crime for law enforcement
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purposes when we happen to come across it. and as judge hogan concluded in a declassified this opinion,, because the statute requires us to obtain evidence of a crime it would be perverse if we were not allowed to similarly to the queries about the information we have to see if we have evidence of a crime. so that's with respect to the doing of the queries themselves. with respect to the use of that information, if we're going to be using any information obtained or derived from other sections of of the two or traditional fisa in a criminal case against a communicant on that communication with the statute terms and aggrieved person, that person would be entitled to note it in a criminal case. as a policy matter we put in place a department policy that was put in place i believe back in 2015 that says we will not as a matter of policy use communications to from or about an american as evidence and a criminal proceeding unrelated to
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either national security or a significant list of enumerated crimes. so routine minor offense we've committed that we will not use that in a criminal case. >> thank you, mr. chairman. i may have a further question that i will go in classified on this but i appreciate that. thank you. >> one question and then we will call the second panel. this question is for mr. ghattas. mr. ghattas, and your answer can be brief, former fbi director james comey testified before the senate intelligence committee on june 8 about 1 and 1 conversation he had with president trump. two of these discussions took place in person. wondering a private dinner at the white house on january 27, and the following breaking in the oval office on february 14. the president also called him on the phone including calls on march 30 and april 11.
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director comey said that he discuss some of these conversations with his fbi leadership team without getting into what was said, were you involved in any discussions about president trump's interactions with director comey? a yes or no would be sufficient. >> yes, senator. >> i don't want to get into detail now, but the committee may want to talk more with you about this. will you commit to getting us the information that we need? >> will work with the committee, senator. >> thanthank you very much, mr. ghattas. thank you, mr. chairman. >> thanks to all of you. we will probably be using you for resources in the months ahead as we -- second panel, please, -- that i cut somebody off? okay. second panel then.


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