Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Hearing on “The Report of the Privacy and Civil Liberties Oversight Board
on Reforms to the Section 215 Telephone Records Program
and the Foreign Intelligence Surveillance Court.”
Wednesday, February 12, 2014
Mr. Chairman, thank you for holding this hearing. I join you in welcoming the members of the Privacy and Civil Liberties Oversight Board here today.
It’s good that the Committee has held many hearings on these surveillance authorities. The committee will undoubtedly hold more. The most important responsibility of government is to protect our national security, while at the same time preserving our civil liberties. The NSA continues to be of great concern to my constituents and many across the country.
Over the last few months, I’ve grown more concerned about why the Department of Justice hasn’t prosecuted any of the few NSA employees who willfully abused their surveillance authorities. I wrote a letter to the Attorney General about this back in October. I didn’t get a response.
A few weeks ago at a hearing, I pressed the Attorney General for an answer. He didn’t have one. He committed to getting me a response, but I’m still waiting. It’s good that these abuses have occurred only on a few occasions. But the American people need to know if the department is taking these referrals seriously.
A month or so ago the President finally weighed in on these important surveillance reform matters. It was long past time for the Commander-in-Chief to become engaged on this issue. After all, surveillance authorities are critical to our national security.
Some of the reforms in his speech concerned me, like the idea that we would recognize privacy rights for potential foreign terrorists.
On the other hand, other reforms the President announced seem more promising. For example, to the extent that it doesn’t compromise national security, increased transparency can help restore the public’s confidence in the intelligence community.
Indeed, not long after his speech, the administration announced new rules that will permit companies to be far more transparent with their customers about FISA Court orders and directives.
The President also announced reforms to the government’s handling and use of the telephone metadata that it collects under Section 215.
The government is now required to obtain a separate court order every time it seeks to access or search the metadata, except in emergency situations. This is a significant additional safeguard against the potential abuse of the metadata.
Additionally, the President announced a change to the program that will require the metadata to be held by the telephone companies. He apparently believes that this can be done without compromising the program’s operational value. There are many questions about whether such an arrangement is desirable or even possible. But the administration is currently exploring options for implementing this change.
It was against this landscape that the board issued its report a few weeks ago. The report contains a number of recommendations that I’m interested in hearing more about.
For example, many of the recommendations in the report concern increased transparency. This is a worthy goal. All but one of these transparency recommendations was adopted unanimously by the board. Moreover, they are similar to the reforms the President proposed.
Additionally, the report recommends that the FISA Court be able to call upon a pool of advocates from outside the government. These advocates would provide an independent perspective, but only in cases that the judge decides present novel or significant issues. This recommendation was also adopted unanimously. It’s also similar to what the President proposed, as well as the approach in the bill that passed out of the Senate Intelligence Committee.
The board’s remaining conclusion was that the Section 215 metadata program is illegal and should be terminated. Of course, this recommendation received the most media attention. It was adopted by only a bare majority of the board, on a 3-2 party-line vote.
The board’s conclusion on this point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfulness of the Section 215 program.
The board’s conclusion is contrary to the opinion of the President of the United States, who likes to refer to himself as a former law professor, as well as the Department of Justice.
It is contrary to the opinion of the prior administration that initiated the program.
It is contrary to the opinion of the fifteen FISA Court judges who have reauthorized the program over the years.
It is contrary to the opinion of two of the three district court judges who do not serve on the FISA Court but who have nonetheless considered the issue.
And of course, it is contrary to the opinion of two of the board’s members.
Nevertheless, as we consider these various reforms, I welcome hearing a wide range of views. I thank the board for its contribution to the discussion as we continue to seek to find the right balance between protecting our individual liberties and our national security.
Thank you.