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Chairman Nadler Statement for Hearing on "Oversight of the Foreign Intelligence Surveillance Act"

Sep 18, 2019

Washington, D.C. –Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following opening statement for the hearing "Oversight of the Foreign Intelligence Surveillance Act:"

"The Judiciary Committee is holding today’s hearing to carry out one of its most important tasks: to ensure that the tools used by our government to keep us safe are consistent with our values and with the freedoms guaranteed by the Constitution. 

"This Committee has long exercised its responsibility to shape the legal framework under which intelligence and law enforcement agencies investigate threats and collect evidence of crimes.  Although we do not conduct day-to-day oversight of intelligence agencies, it falls to us, in hearings like this one, to conduct a broad review of how our government exercises its legal authorities and whether that conduct accords with our values as Americans. 

"At the outset, I want to acknowledge two things:  First, the men and women in our nation's law enforcement and intelligence communities, including our witnesses today, work tirelessly to keep us safe from attacks and other threats by hostile adversaries.  Those efforts include working rigorously to comply with our laws.  Second, there are countless Americans in the privacy and civil liberties communities who are dedicated to keeping us safe from other kinds of threats: threats to privacy, freedom of speech, and due process that take hold when the government’s surveillance authorities extend too far. 

"Those who criticize and question the laws we will be discussing today are part of this nation's proud and robust tradition of holding our government to account; questioning the government's reasons for its actions; and jealously safeguarding the freedoms guaranteed to us by the Constitution.  It is in that spirit that I hope to have a serious and substantive discussion today about the Foreign Intelligence Surveillance Act (or FISA) and the provisions that are set to expire at the end of this year.

"In response to substantial concerns that the intelligence community had exceeded its authority under FISA, Congress in 2015 enacted the USA FREEDOM Act, which contained several important reforms. 

"Notably, we put an end to the NSA’s program under which it collected the phone records of millions of law-abiding Americans using a highly strained interpretation of a provision in the 2001 USA PATRIOT Act.  We reformed that provision—known as "Section 215"—to prohibit bulk collection of phone records and other types of records.  Instead, to collect certain kinds of phone records, we required the NSA to apply to the FISA court for an order based on individualized facts and a specific selection term.

"We also created an important mechanism to ensure that the FISA court hears both sides of the legal arguments in cases presenting novel and important issues.  And, we enacted several measures to enhance transparency in the FISA court and in other types of reporting.

"At the end of this year, Section 215 and two other FISA authorities—known as the "roving wiretap" provision and the "lone wolf" provision—are set to expire unless they are reauthorized by Congress.  Because these three provisions give the government powerful and controversial intelligence authorities, Congress attached them to sunsetting provisions when they were first enacted and has reauthorized them for limited time periods ever since.  These periodic reauthorizations provide this Committee and other committees an important opportunity to review how these laws are used and to conduct the kind of oversight that we are doing here today.

"Last month, however, former Director of National Intelligence Daniel Coats sent a letter to the leadership of this Committee and other committees in the House and Senate asking that we reauthorize all three provisions permanently. 

"At the same time, former Director Coats’s letter acknowledged that the NSA has dismantled the call records program that it had been conducting under Section 215, as amended by the USA FREEDOM Act. 

"Simply put, the NSA dismantled the program because it was a serious failure.  The NSA used it to collect hundreds of millions of phone records.  But in 2018, it discovered that it had no authority to collect some of the records it was receiving.  Worse, it had no way of separating out which records were wrongly acquired from the ones that were collected lawfully.  So it started deleting them all.  This has all been publicly reported by the intelligence community.

"To be clear, it is not a bad thing that the NSA identified a problem, told us about it, and tried to fix it.  It is also fine that they decided the program was not worth running. 

"As former Director Coats put it, the decision to end the program was made after balancing its "relative intelligence value"—which was evidently minimal—against "compliance and data integrity concerns."  The NSA decided that the costs outweighed the benefits, and it pulled the plug.  That kind of candor should be applauded.

"But it is baffling to me for this Administration to announce that it has shuttered this program and then, in the very same breath, to ask Congress to extend it permanently.  The Administration has offered almost no reason for this striking position, except a vague suggestion that we might need the program sometime in the future "as technology changes" and as our adversaries' capabilities "evolve and adapt."

"When Congress enacted the USA FREEDOM Act, we made a good-faith effort to give the intelligence community a capability that it said it needed to collect call records. 

"That experiment has run its course.  If the Administration really wants to keep this provision on the books, it is going to have to justify it with more than a vague promise that it might come in handy one day in the future.

"I look forward to discussing the other authorities that are set to sunset, including aspects of Section 215 and FISA’s roving wiretap and lone wolf provisions.

"I also look forward to discussing, as well, the important reforms that we enacted in the USA FREEDOM Act and whether any of those reforms should be strengthened.  As I noted earlier, this Committee has an important and long-running responsibility to have these candid and rigorous discussions as we consider how best to ensure that our laws are in line with our values.

"I thank today’s witnesses for being here today and for their service to our nation."

116th Congress