The House Judiciary Committee held a hearing on the Foreign Intelligence Surveillance Act on Tuesday; witnesses included Deputy Attorney General James Cole; Peter Swire, who was on the review group that recommended changes to President Obama in light of NSA revelations; and David Medine of the Privacy and Civil Liberties Oversight Board.
Rep. Darrell Issa (R-Calif.) questioned Cole on whether members of Congress’s phone records were collected.
REP. ISSA: You gather the logs of members of the House and Senate and their official calls, including calls to James Rosen. Is that right?
MR. COLE: We’re not allowed to look at any of those, however, unless we make a reasonable articulable suspicion finding that that number is associated with a terrorist organization. So while they may be in the database, we can’t look at any of those numbers under the court order without violating the court order.
REP. ISSA: Well, speaking of court orders, Mr. Rosen -- is he, in fact, a criminal?
MR. COLE: Is he, in fact, a criminal?
REP. ISSA: Well, the attorney general had said that James Rosen, a Fox reporter, you know, there was a wiretap placed on his family -- he and his family, correct? Not -- and this was --
MR. COLE: No, there was not a wiretap, sir.
REP. ISSA: There wasn’t? I’m sorry. You collected personal emails. Let me get it correct.
MR. COLE: There was a warrant for -- there was a warrant for personal emails but there was also the -- they wiretapped his family.
REP. ISSA: Let me rephrase that. Let me go on and I’ll come back to that because I want to make sure I get the terminology right. Do you screen executive branch numbers?
MR. COLE: We don’t screen any numbers as far as I know.
REP. ISSA: So you collect all numbers. The president’s phone call log record is in the NSA database?
MR. COLE: I believe every phone number that is with the providers that get those orders comes in under the scope of that order.
REP. COLE: Would you get back with us for the record as to whether all phone calls of the executive branch, including the president, are in those logs?
MR. COLE: I’d be happy to get that back to you, Congressman.
REP. ISSA: OK, especially if he calls Chancellor Merkel. It’d be good to know. The freedom of association is a basic constitutional right, wouldn’t you agree, Mr. Cole?
MR. COLE: Yes, it is.
REP. ISSA: And if you are looking at our associations and then if we have associations with somebody that you believe is, quote, “a terrorist,” then you take the next step, right?
MR. COLE: Well, we don’t look at your associations, Congressman.
REP. ISSA: What does the metadata -- what does the metadata do if it’s not look at --
MR. COLE: Well, we don’t look at the metadata unless we have reasonable, articulable suspicion that the specific phone number we want to query is associated with terrorists. That’s the only way we can get into that metadata.
REP. ISSA: Do you -- you collect the phone number metadata of all embassies in here in Washington, all the foreign embassies?
MR. COLE: I believe we would. Again, we don’t screen anything out to my knowledge. But that’s something that NSA would know. My understanding is we don’t screen anything.
REP. ISSA: And they have conversations with large amounts of numbers back in their home countries, right?
MR. COLE: All the telephone numbers have large amounts of conversations with lots of other telephone numbers. We don’t look at them unless we have that reasonable, articulable suspicion for a specific --
REP. ISSA: Well, isn’t it true that the reasonable, articulable suspicion goes a little like this. I talk to somebody in Lebanon who talks to somebody in Lebanon who talks to somebody in Lebanon who talks to somebody in Lebanon who talks to somebody in Lebanon. If you gather all that data, then I’ve talked to somebody who’s indirectly talked to a terrorist. Isn’t that right?
MR. COLE: That’s not how it would work, Congressman, no.
REP. ISSA: How do I know that? How do I know that a 12-step-removed somebody talked to somebody who talked to somebody who talked to somebody who talked to somebody who’s on the list wouldn’t occur? And I’ll just give you an example.
The deputy prime minister of Lebanon at one time gave $10,000 to a group associated with a Hezbollah element. If I called the deputy prime minister, which I did, from my office, wouldn’t I have talked to somebody who was under suspicion of being connected to a terrorist organization? The answer, by the way, is yes. But go ahead and give yours.
MR. COLE: Well, we wouldn’t be querying your phone number, Congressman, unless we had evidence that you were in fact involved with a terrorist organization. That’s the requirement --
REP. ISSA: But you would query the deputy prime minister who had made a contribution and was under suspicion, right?
MR. COLE: If we queried his phone number, we might find that connection.
REP. ISSA: And at that point, you would have a connection between somebody who you had a warrant for and me. So you could have a warrant for me. Is that right?
MR. COLE: Well, I don’t think we would necessarily have enough to have a warrant for you with just that one phone call, Congressman. That’s not how it works. Again, there’s a lot of restrictions in those court orders and in the rest of the law as to what we can do and what we can get warrants for and what we can’t get warrants for.