Top FBI, DOJ Officials Grilled About Biden Whistleblower, FISA Abuse In Senate Judiciary Committee

Senator Graham is on his way and sent word that we should start before he arrives today the Judiciary Committee will focus on two of our most critical responsibilities to the American people protecting our national security and our constitution at the end of this year an important and controversial surveillance Authority known as section 702 of the foreign intelligence surveillance act or fisa is set to expire it is worth taking a moment to recall the history of this program after 9 11 2001 the Bush Administration launched a warrantless surveillance program without authorization from the courts or congress years later the committee heard dramatic testimony about White House officials pressuring Attorney General John Ashcroft from his hospital bed to reauthorize this surveillance program he refused after the surveillance program came to light Congress retroactively authorized in the fisa Amendments Act of 2008 as a temporary temporary emergency tool to combat terrorism this that is what became of section seven of what became section 702 today nearly two decades later section 702 is touted as a critical for a range of purposes including countering China tracking Russian atrocities in Ukraine and even monitoring the distribution of fentanyl in the United States there is no doubt that section 702 is a valuable tool for collecting foreign intelligence but as I have said for years section 702 also raises serious constitutional concerns only foreigners abroad may be targeted under Section 02 let me repeat that only foreigners abroad may be targeted under Section 702 but in the course of gathering Intelligence on foreigners our government also collects the private Communications of Americans who communicate with these individuals abroad how many American Communications are collected under Section 702 the government cannot and will not say what we know is that hundreds of thousands of foreigners are targeted each year and likely billions of communications are collected and stored on government databases the government can then search these databases for Americans email phone calls and text messages all without a warrant just as a reminder the Fourth Amendment to the Constitution says the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supporting by oath or affirmation and particularly describing the place to be searched and the person or things to be seized it was my view when this program was first established first authorized by Congress in 2008 and it's my view now that section 702 does not sufficiently protect the privacy and civil liberties of Americans that's why I joined with Senator Lee in a bipartisan 2012 effort to offer an amendment to require a warrant for any backdoor search of American Communications the government can then search these databases for emails phone calls as I mentioned earlier in what is known as a backdoor search the FBI alone conducted more than 200 000 warrantless searches of Americans in 2022 since Senator Lee and I offered our amendment in 2012 the problems with Section 702 have continued the court charged with overseeing this program has found quote persistent and widespread close quote violations of the rules governing section 702. in just the latest example it was recently revealed that the FBI has used section 702 conduct to conduct backdoor searches on the communications of Americans who were arrested in the racial Justice protests following the murder of George Floyd as well as individuals who participated in the January 6 insurrection I understand that recently implemented remedial measures have already begun to reduce these egregious violations I understand additional compliance measures are under consideration these are good steps but Congress also has a constitutional responsibility so at the outset of today's hearing let me say this I will only support the reauthorization of section 702 if there are significant significant reforms and that means first and foremost addressing the warrantless surveillance of Americans in violation of the Fourth Amendment moreover the reforms must also include safeguards to prevent future abuses and ensure effective oversight by Congress and the courts some of our colleagues believe it will be best to let this Authority expire others argue that Congress should reauthorize section 702 with minimal reform as chair of this committee I will work on a bipartisan basis to bridge this divide over the coming months I understand the seriousness of this challenge we can protect America's national security and the constitutional rights of the American people at the same time Senator Graham has not arrived I will start with the introduction the witnesses he may be coming in shortly today we welcome five senior officials from the administration Chris fonzone I hope I pronounced the name correctly general counsel of the office of Director of National Intelligence next we will hear from George Barnes deputy director of the National Security Agency we will then hear from the deputy director of the CIA David Cohen following Mr Cohen we will hear from Paul abate the deputy director of the FBI and lastly we'll hear testimony from the Assistant Attorney General for National Security at the Department of Justice Matt Olson after we swear in the witnesses each witness will have five minutes to provide an opening statement then each Senator five minutes to ask I urge my colleagues to focus their question on today's hearing in particular I'd like to emphasize to everyone on both sides of the idea that everyone on both sides of the aisle has a responsibility not to interfere in the special counsel's ongoing criminal investigation of the former president Mr Trump is entitled to the presumption of innocence attempting to litigate the indictment against him has no place in today's hearings now I'd ask the witnesses to stand and be sworn please raise your right hand do you affirm the testimony you're about to give before the committee will be the truth and the whole truth so happy God the record reflected all of the witnesses answered in the affirmative we'll begin with opening statements from OD and I general counsel Chris fonzone Mr Funzone you may proceed chairman durman chairman chairman Durbin distinguished members of the committee thank you for the opportunity to speak to you today about section 702 of the foreign intelligence surveillance act an important intelligence Authority set to expire at the end of the year section 702 is an authority that enables the United States to collect critical foreign Intelligence on non-us Persons located outside the United States with the assistance of U.S Communications service providers it provides the United States with indispensable insight into a diverse range of issues from the conventional and cyber threats posed by China Russia Iran and North Korea to cyber security and terrorism threats to the proliferation of weapons of mass destruction to numerous other high priority National Security challenges and provides these insights while simultaneously requiring the government to comply with robust safeguards designed to protect the privacy and civil liberties of Americans that's why in a nutshell my intelligence community and doj colleagues and I believe the reauthorization of section 702 is so vital section 702's Origins lie in the rapid changes of the threat and Communications landscape that occurred early in the 21st century when Congress recognized that the den existing legal framework for collecting intelligence often referred to as traditional fisa had not kept pace with technology specifically when fisa was first enacted in 1978 it was primarily designed to regulate activities inside the United States Over time however the Advent of the internet and other technological changes meant that terrorists hackers spies and other adversaries operating overseas but using U.S communication Services were increasingly subject to traditional fisa's requirements requirements which included the government must obtain a court order based on probable cause to collect those adversaries Communications the operational burden of obtaining those individual Court odors was unworkable however and also legally unnecessary as foreign adversaries located overseas are not entitled to Fourth Amendment protections section 702 was congress's Elegance solution to the problem rather than requiring individual judicial approval to collect Intelligence on these non-us persons located overseas Congress decided to create an approach that a court would approve on a programic basis and that all three branches of our government would help oversee specifically for the government to collect intelligence using section 702 the foreign intelligence surveillance Court an article 3 Court must annually review and approve certifications submitted by the attorney general and Director of National Intelligence that described the categories of foreign intelligence the government plans to acquire alongside these certifications the court also reviews the detailed procedures containing privacy and civil liberties safeguards the government proposes to follow in collecting and using foreign intelligence under Section 702 and the court will only approve these certifications procedures if it concludes that they are consistent with both the Fourth Amendment and fisa including statutory protections that require the program to be properly aimed at non-us persons located outside the United States even after the court approves the program the government still cannot collect information on any specific Target until it complies with detailed rules that require among other things a documented basis for concluding that the target is a non-us person located overseas and that there is an appropriate foreign intelligence purpose for the collection furthermore even after the government starts collecting under 7 section 702 all three branches of our government engage in rigorous oversight of the program this includes oversight from internal components at each agency doj's review of the documentation for every targeting decision programmatic oversight from doj and odni regular reporting to the fisc and regular reporting and briefings the Congressional intelligence industry committees I think it is safe to say that my colleagues and I unanimously believe this program enacted by Congress in 2008 and subsequently improved over time is an essential Authority in particular well I will leave it to my colleagues to provide more detail on Section 702's intelligence value I'll just note that I think the attorney general and dni pretty much summed it up in a letter they sent to Congressional leadership earlier this year section 702 has proven invaluable again and again in protecting American lives and U.S national security they wrote Such that there is no way to replicate section 702's speed reliability specificity and insight likewise I believe the other half of section 702's equation its privacy and civil reduced safeguards have also proven their efficacy to be sure this does not mean the intelligence Community has been perfect to the contrary like any human endeavor we have made mistakes including some important ones but section 702 has required us to identify and confront those mistakes disclose them to our overseers in the public and take remedial actions that make us better this process also identifies areas for potential statutory Improvement and we are therefore committed to working with Congress on reforms so long as they fully preserve the critical intelligence section 702 provides I look forward to answering your questions today and working with you to renew this essential Authority with that I will turn it over to my colleague from the National Security thank you Mr fonzone we have next NSA deputy director Barnes you may proceed chairman durman thank you member Graham and distinguished committee members I'm honored to represent the National Security Agency here today and I'm grateful for the opportunity to speak with you about Visa section 702 this Authority is essential to nsa's foreign intelligence Mission without it our ability to preserve the nation's security would be significantly impaired the United States is the leader in internet technology and U.S communication services are globally distributed including by use by Myriad high priority intelligence targets when the intelligence Community compels the assistance of electronic Communication service providers under 702 Authority we quickly get access to Reliable detailed information that addresses key National Security information gaps affecting the Safety and Security of our nation the importance of this authority to our mission cannot be overstated data comprises section 702 helps us every day to understand the Strategic intentions of foreign governments and certain non-state actors who pose threats to our interests this source of intelligence is a big part of what keeps our leaders well informed about the threats we face 59 of the presidential Daily Brief articles include intelligence acquired by NSA under 702 Authority and the pdb plays a key role in keeping the leadership across the government cited on key threats countless intelligence Community successive successes would not have been possible without 702. we have spoken publicly many times about how 702 has supported our counterterrorism mission from preventing an attack on New York City's Subway in 2009 to supporting the operation that took down Aman zawahiri just last year but 702 has likewise become indispensable across nsa's other vital Mission areas let me offer some specifics 702 collection identified in Iranian ransomware attack against an American nonprofit and the data we acquired provided the US government with information needed to mitigate the damage and recover the victim organization's data without resorting to Ransom payments information acquired under 702 Authority was essential to the recovery of the cryptocurrency ransom paid by a colonial pipeline to the foreign hacker who perpetrated the attack in 21. section 702 was vital in warning the International Community the private sector and the public about dprk efforts to commit widespread fraud including against U.S businesses aimed at generating revenue for their nuclear weapons program 702 regularly provides intelligence community counterparts with critical insights into the fentanyl supply chain from Chinese origins of creep key precursor of chemicals to the efforts of four narcotic traffickers to smuggle Fentanyl and Other Drugs toward the United States 702 has also helped us to uncover despicable atrocities committed by Russia and Ukraine including the heinous murder of non-combatants and the forced relocation of Ukrainian children to Russia in every facet of our foreign intelligence foreign intelligence Mission 702 is critical and that's not just an exaggeration last year nearly every item in the presidential's intelligence priorities list was addressed in some way shape or form by 702. it's not replaceable NSA could not replicate intelligence from 702 using other authorities it's agile specific and efficient the compelled assistance of U.S electronic Communication service providers means that for certain key requirements we can avoid sending our officers into overseas hostile areas to mount risky collection operations it means that we can rapidly acquire information about Targets in remote and denied areas of the world where the intelligence Community has little or no accessibility means that when we see a Target changing their behavior we can adapt quickly ensuring that we do not miss critical leads and details and importantly it means that we get narrowly tailored information the data of specific foreign targets located overseas communicating information important intelligence significance in value all in a man are defined by the law guy by the National Intelligence priorities framework and scoped by the specific certifications approved annually by the fisc finally I'll talk a bit about compliance NSA has a deep culture of compliance I'm proud that our Workforce is so dedicated to compliance with all the laws and policies that we follow and those that govern our second mission including 702 the doj's review and assessment determined that NSA 702 targeting decisions have been over 99 compliant since the last reauthorization in large part because we have a robust compliance program including hundreds of dedicated compliance professionals working hand in hand with analysts our compliance team is part of each stage of the analytic process from the initial targeting decision to the review of the responsive content supporting the mission and ensuring that our culture of compliance is maintained day in and day out thank you for the opportunity to discuss 702 and what it means to NSA and I'd like to turn next to my colleague David Cohen from CIA the CIA deputy director Mr Cohen you may proceed good morning uh and thank you chairman Durbin ranking member Graham and members of the committee for inviting me to discuss this important topic and to represent the men and women of the Central Intelligence Agency the information the CIA derives from fisa 702 collection is quite simply indispensable for CIA to perform its mission it allows us with precision and with care for the rights of the American public that we serve to gain authoritative timely and actionable insights into the full range of National Security threats and foreign policy issues confronting our nation I thought it'd be most useful for the committee to focus my opening remarks on some of the ways that CIA uses fisa 702 collection every day to do our job our focus in particular on how we use 702 in our overseas clandestine collection and counter-intelligence operations in preparing all Source analysis for policy makers here in Congress and in the administration and as part of the government-wide response to the fentanyl crisis first starting with our operations as I'm sure you know one of ca's core missions is to operate clandestinely overseas to collect intelligence from individuals we've recruited these individuals our assets often risk their lives in the lives of their families to provide information to CAA officers to help the United States and my officers who spot assess develop recruit and meet with these individuals often put their lives their safety and their well-being at risk to do their job because human intelligence operations carry a great deal of risk we often think about human intelligence or humans as the collection of Last Resort the means of collection we turn to when no other source of collection can deliver the information we need to keep this country safe once we've reached that point once we know a human source is necessary we have to find exactly the right person among hundreds maybe thousands of potential candidates fisa section 702 helps us find many of these individuals these potential sources and it allows CA officers to do their jobs faster and with less risk once we have an operation underway 702 collection helps us keep those operations secure by allowing us to identify threats early and to provide real-time monitoring during our most dangerous operations CIA officers face unique challenges and threats from all sorts of Nefarious actors from hostile intelligence Services trying to identify our officers and our sources to terrorist groups who seek to harm or even kill them we take very seriously our responsibility to protect our officers and the people who put their lives on the line to work with us as sources 702 is quite simply a key tool in our Arsenal to help keep both our officers and our assets safe section 702 collection plays a critical role in our analytic Mission ensuring we can provide the best possible all Source analysis to policy makers in the administration and in Congress CAA analysts leverage intelligence from every Source available open source information human imagery signals intelligence and 702 to prepare this analysis information collected under 702 is a key piece of that all Source puzzle and a particularly important one because of its timeliness and precision the statistics experience beared this out as I'm sure you know one of our primary analytic Publications is the world intelligence review known by its acronym The Wire it is provided across the executive branch and to Congress in the last year nearly 40 percent of our daily wire articles contain at least one intelligence report derived from 702 collection in our other analytic products for Congress and the administration including the presidential Daily Brief the numbers are similar section 702 is put simply a critical component of much of ca's analytic product across the gamut of National Security and foreign policy issues the Third Way We leverage 702 is to support broader U.S government efforts against foreign-based drug trafficking organizations 702 collection illuminates the networks in Global Supply chains used by foreign-based drug trafficking organizations this includes how they manufacture and transport everything from precursor chemicals to their foreign labs to their distribution of their product into the United States as we gain this Insight we're able to support and partner with foreign governments to take action most recently 702 was proven critical in helping us counter the fentanyl threat which as I'm sure this committee is aware is responsible for the deaths of nearly a hundred thousand Americans every year without 702 we would be missing essential information on the dangerous groups and individuals behind overseas fentanyl production and distribution ncaa's ability working with and through our partners to stem the flow of fentanyl into our communities would be greatly diminished I hope these three examples illustrate some of the ways that we at CIA rely on fisa 702 collection every day it is as I said at the outset indispensable for our work I look forward to answering your questions thank you Mr Cohen next we have FBI deputy director Mr Abate I hope I pronounced your name correctly yes Senator please proceed thank you chair Durbin ranking member Graham and members of the committee it is a privilege to be here because of the immense importance of this topic and the discussion to follow and for the opportunity to have it in this public setting as this distinguished panel of colleagues has already done a thorough job of covering so much of what is vitally important about the collective fisa section 702 Authority I will try to provide insight into the FBI's use of the tool how we act based on the critical intelligence gleaned from it and the actions we have taken and continue to take to ensure strict compliance with its use with respect to the threats we face as you are all aware section 702 is invaluable within our cyber program as it counters malicious activity from adversaries such as China Russia Iran North Korea among others it is also a critical Authority for the counterintelligence program which relies on it to thwart the work of hostile foreign intelligence services including each of the Lawless authoritarian regimes just mentioned and our counterterrorism operators depend on it to stop foreign terrorists those who detest American values freedom and our way of life and who seek to attack our country take lives and cause harm as we've learned from the past if the 702 tool is lost and we have to rely on traditional fisa moving forward it would be next to impossible to keep Pace with the foreign threats we face today with that we know many very real and legitimate concerns have been raised about the bureau's use of 702 particularly as it relates to querying the limited subset of 702 data relating to the FBI's National Security investigations I want to be clear about my own views on the compliance incidents that were cited in the fisa Court's opinion from last year which was just recently Declassified they are holy and completely unacceptable and they do not reflect the high standards that we seek to hold ourselves to in the FBI I know director Ray in the entire leadership team feel the same way it is important to keep in mind that all the incidents cited in that 2022 fisa Court opinion predated a set of major reforms that the FBI instituted in 2021 and 2022 that were designed to address the root causes and eliminate incidents like these from changes in our I.T systems to our internal approval processes to training and to accountability these reforms have already had significant positive impacts we've seen a 94 percent drop in U.S person queries overall and our office of internal auditing found a 14 percentage Point increase in our compliance rate from before the reforms to after it is now at approximately 96 percent what is vital to remember is that there are incredibly important National Security and public safety reasons for the FBI to query U.S persons in fisa Holdings this was a fundamental lesson derived by both the 911 Commission and the Fort Hood commission we must share information across the intelligence community so that we can connect the dots and then we must be able to find the relevant pieces of information in our databases in time to be able to take action to neutralize the threat U.S person queries are used to identify those who are actively working with foreign terrorist organizations or hostile intelligence services with intent to harm U.S national security and threaten the lives of those who we serve and we also use these queries to determine if those U.S persons are current or potential victims targeted by those foreign powers and if they are victims we use U.S person queries to investigate the extent of that targeting and can use that information to protect and warn the US person or organization but it's not enough to say that queries like these are valuable to our mission to protect the Homeland the American people and Congress also need to have trust and confidence that these queries are being done lawfully and in a fully compliant manner it is Our obligation to rebuild and to earn that trust as the FBI official responsible for personally approving some of the most sensitive queries I take these compliance errors very seriously and find them entirely unacceptable it is difficult to express strongly enough in words how disappointed I am in these failures and so in response to these and other incidents I'm announcing today two additional new measures we will be taking to hold Personnel accountable for pfizer-related compliance incidents first I have issued new accountability procedures which establish a three-strike policy for query compliance incidents deemed to be unintentional with a range of rapidly escalating consequences and even stronger disciplinary action for those incidents deemed deliberate Reckless or particularly egregious penalties based on the facts range up to dismissal from the agency second the FBI has developed a new business Health measure to hold our leadership accountable for monitoring fisa compliance within their field offices and divisions this is one of the measures our leaders will be evaluated on when it comes time for performance ratings Awards and promotions because it is not enough to Simply hold the line level employees accountable we strive to ensure that we have accountability at every level throughout the organization you have an absolute and complete commitment from direct array and I that we will continue this progress and work within the bounds of legislative Authority because as crucial as 702 Authority is now it will only become more important over the next five years as foreign cyber attacks continue to escalate in sophistication and frequency as foreign terrorist organizations continue to reconstitute and pose resurgent threats to the Homeland and as we venture further into an era of heightened Global strategic competition so thank you again for inviting us to this important hearing and for your continued support of the FBI and our close Partners represented here thank you thank you very much Mr Abate Mr Olsen thank you chair Durbin ranking member Graham members of the committee as you've just heard section 702 is invaluable the reauthorization of 702 is perhaps the single most consequential national security decision that this Congress will make the stakes could not be higher Congress enacted section 702 as part of a number of fundamental legal reforms following 9 11. those attacks demonstrated that we must one share intelligence and two that we must eliminate walls between foreign intelligence collection and domestic law enforcement I was part of the team at the Department of Justice in 2008 that worked with Congress to pass section 702. Congress then recognized that fisa as written created a dangerous intelligence Gap and enacted 702 on a bipartisan basis and when Congress passed 702 it also included a number of critical safeguards for Americans the law for example prohibits targeting anyone inside the United States or a U.S person anywhere in the world the fisa court reviews section 702 procedures every year to ensure that they comply with the Constitution and with fisa and the National Security division which I lead reviews every single targeting decision that's made in my experience section 702 is a model piece of legislation an authority that both protects National Security and safeguards civil liberties so let me address one area of particular concern and that's the FBI's FBI's use of section 702 information to use the intelligence that the IC collects lawfully agents and analysts quote query the database of FBI information this is the small subset of 702 data that is relevant to open FBI National Security investigations a query simply means using a term to retrieve specific information that already is in the FBI's possession it's like searching for something in your email inbox you don't read every single email you probably enter a keyword to find what you're looking for quickly within what's already stored in your inbox and the FBI's ability to do this to conduct these queries is absolutely essential to its mission for example if the FBI learns that a spy working for the PRC has a list of U.S phone numbers on their phone FBI investigators May query FBI 702 data with those phone numbers some of them may be U.S phone numbers to help identify others working for the PRC or even potential victims of PRC Espionage and this is not just hypothetical the FBI in fact was able to disrupt able to disrupt ongoing assassination and kidnapping plots in part because FBI investigators searched their 702 data with U.S person identifiers and they were able to therefore quickly discover the nature and extent of the plotting in another case the FBI was investigating a Cyber attack against a critical infrastructure company here in the United States the FBI queried its section 702 data with U.S person identifiers and they found out that it was Chinese hackers that were behind the attack and that they had compromised the network and they figured out how they did it it was this information the FBI got from querying its data that allowed the FBI to alert the network operators and to mitigate the attack ultimately the FBI is the single organization represented here with the responsibility and the authority to take action inside the United States to protect our national security whether that's to identify and disrupt terrorism attacks Espionage or cyber threats and the FBI's ability to quickly review its section 702 data is an essential tool for that mission the FBI however must Safeguard the rights of Americans in recent years we have identified and reported serious compliance issues with FBI's U.S person queries and let me be clear I joined with deputy director of bait these compliance problems are not acceptable they have eroded public trust and I'm not here to defend them indeed when we identify these problems the Attorney General directed the FBI to make significant changes to their systems and their policies and their training changes that have already proven effective in improving compliance but this is an ongoing process and as the deputy director testified the FBI is imposing new measures for compliance and new measures for accountability and we're continuing to review the FBI's performance for ways to improve we are committed to working with you and with the rest of Congress on potential reforms as we work with you on this effort we must ensure that any changes we make also preserve section 702's essential Effectiveness as a national security tool in the end we must not forget the lessons of 9 11. unduly limiting the FBI's ability to access lawfully collected information and imposing artificial barriers between foreign intelligence and criminal investigations will set us back decades it will put our nation at grave risk section 702 has proven to be an Irreplaceable Authority that enables enables our entire intelligence Community to work together to collect and to share and to use the information that's necessary to protect our country thank you thank you Mr Olsen before I start the questioning I'll recognize Senator Graham for an opening statement thank you Mr chairman be very brief the committee has heard pretty jarring testimony from people and the intelligence and law enforcement space that if Congress fails to reauthorize 702 that the country would be much at risk and this program has been used to identify some pretty bad actors and take action on behalf of the United States the abuses that you talked about I'll talk to you about in a minute but I guess what I'm trying to tell my constituents back home the threats to the country are growing they're not lessening the Isis Al Qaeda footprint is coming back China's up to no good at every front the Iranians are threatening to kill former members of the Trump Administration and many of us have been briefed by the FBI based on pickups you've had regarding threats against us now I would imagine that came from 702. that's the need for it the downside is that it's been abused and there's a warrant requirement to investigate an American citizen for potential wrongdoing and we don't want this to be used to get around a warrant requirement so bottom line is let's reauthorize this program and build in some safeguards Senator Graham before I begin my questions I want to remind my colleagues that following this Open Session will have a closed session in SVC 217 at 12 pm today where you can pose questions that may not be able to be answered in Open Session I'd like to start with questioning by just noting the following I listened to how this program was described by our Witnesses Mr fonzone described it as an elegant program Mr Barnes described it as agile and specific Mr Cohen referred to precision Mr Olsen that it was Irreplaceable and invaluable and so forth but since the last reauthorization of section 702 in 2017 many violations of the Constitutional statutory and Court imposed restrictions on Section 702 have come to light last month an unsealed foreign intelligence surveillance court or Fisk opinion reveal that the FBI conducted improper searches of 702 databases for American Communications 278 000 times 278 000 times these searches have affected all manner of Americans such as individuals listed in police and homicide reports including victims next of kin and witnesses to the crime 133 people were arrested during the 2020 black lives matter protest when as justice department itself concluded quote there was no specific factual basis to think the searches would turn up foreign intelligence and nineteen thousand donors to Congressional campaigns when quote the only eight identifiers used in the query had sufficient ties to foreign influence activities to allow such a search eight out of nineteen thousand Mr Abate and Mr Olsen you both testified regarding the remedial measures that have been implemented or are underway but why should Congress are the American people trust the executive to comply with the law this time in light of this track record uh thank you chair Durbin I'll first take the question and then pass it off to um the deputy director as we both said that the problems that you've cited and that we've identified in our reviews of the FBI queries are not acceptable and I don't defend them I'm not here to do that what I can tell you is that those problems predate the critical remedial measures that were put in place in 2021 and 2022 in particular the FBI made a simple change to its system at the Attorney General's Direction instead of by default when there was a query conducted by an FBI analyst or agent searching all of its data including fisa rothfies and 702 data it simply switched that to a default opt-in so that from that point forward starting in 2021 the FBI agent or analyst had to actually affirmatively take the step of saying I'm going to conduct a search using a US person identifier and then Dem say why that was reasonably likely to return foreign intelligence information and it was that single change that has resulted primarily in the reduction of the number of U.S person queries by 93 percent from 2021 to 2022. so it was a it wasn't again these changes or these problems these mistakes were not intentional they were inadvertent they're not defensible but they were addressed largely by just simply requiring an affirmative step to search that data because most of those searches were inadvertent um deal and if I made one other point on the the 278 000 number within the court opinion that you cited obviously that's a huge number the one thing to put that in some context the one response to put that number in context that doesn't represent a sing each one of those a single wrongful query many of those queries were batch queries in other words multiple queries by one make it by one mistake One agent making a mistake in fact one of those errors accounts for over a hundred thousand of the 278 000. so I think it's important to put that number again in context again not to defend or or to excuse that mistake it's been a source of frustration since the creation of this program to get adequate accountability for the numbers uh either on the positive side or the negative side and you have to I hope understand why some of us are skeptical at this point that 278 000 doesn't mean 278 000. I'm not sure where you're going with that let me just ask the basic fundamental question in a few seconds I have left is the skill of our adversaries and the potential destruction that they could bring To Us by their malicious acts really made the Fourth Amendment uh something that we have to question whether we can follow it in the 21st century so again I the FBI's committed the Department of Justice is committed to ensuring the safeguards are followed in with regard to 702 there there is no diminution of the Fourth Amendment when we're talking about U.S person queries in other words the answer to your question is we do not need to dispense with the Fourth Amendment the fourth amendment applies fully to everything we do in fact it's it's the Hallmark of the work that we do and we investigate and prosecute cases is to follow the Fourth Amendment along with the rest of the Constitution the courts that have looked at this had looked at at fisa 702 and FBI queries no judge has said that there is a fourth amendment requirement to for the FBI to query the data that's already lawfully collected in fact the courts that have looked at it have said there is no Fourth Amendment violation or requirement there certainly are privacy implications here and that's why we've adopted the changes that we've talked about and that's why the FBI has today announced additional compliance measures which again are already proving to be effective I I can't go any further because I've run out of time but I will tell you that if the reforms that you've mentioned in 2021 and 2022 are the only reforms that you're bringing to this committee uh as we discuss the future of 702. uh I've got to see more I hope there is more that you can present Senator Graham thank you Mr chairman uh I'm just asked the panel to raise your hand if you agree with the following the United States is an Undeclared state of war against Isis and Al Qaeda you agree with that or not okay all right I think you raised your hands uh that the Communist Chinese party is hell-bent on infiltrating as many systems in America as possible okay so let's talk about I don't know if there's anybody named John Doe out there but I don't know why you would name your kid John Doe so let's talk about John Doe uh if John Doe is suspected of working with the Chinese or some terrorist organization do we all agree you'd have to get a warrant against John Doe if there were American citizen everybody nods her head right if you think some American is colluding or working with some foreign power that would be a crime and you'd have to get a warrant to investigate them do we all agree with that okay 702. this is about foreign persons outside the country is that correct we're surveilling foreign people outside the United States not to solve a crime but to find out if they're up to no good in terms of intelligence gathering threats to the country is that correct here's the rub you pick up a phone on the battlefield somewhere and there's a bunch of names in that phone or numbers in that phone I think you talked about this Mr body but let's just say you capture terrorists somewhere overseas and you have a mobile device and on that device there are names of Americans or numbers of Americans what happens next we're going to quickly take those numbers uh Senator we're going to run them against the Holdings without a warrant if we're talking about fisa 702 yes uh yes if it's obtained from foreign terrorists yeah absolutely so the idea of not looking at those numbers is absurd well what you want to look at those numbers doing it in a constitutionally sound manner is what we're talking about so what would you do you would ask the system what we would be looking connections around the world and specifically in the United States we would want to know if that terrorist is working with someone so if he called John Doe in Cleveland Ohio and you ping the system and there is Communications between the terrorist device and John Doe in Cleveland Ohio what would you do next we would do all the investigative steps that you would expect physical surveillance would you have to get a warrant if we were going to seek uh technical surveillance on the U.S person absolutely we would okay so if a terrorist is talking to someone inside the United States and we pick it up from 702. uh if you want to follow the American on the other end of the phone you potentially would have to get a warrant is that correct yes senator okay but just asking the question about whether or not there was a contact does not require warrant does that make sense yes okay so if an American is involved with a foreign person overseas and there's evidence of an American being involved we don't know what the nature of the involvement is we like to know more you can ask the system but if you're really focusing on the American as being up to no good you have to get a warrant is that fair to say that is correct Senator once the focus turns to the U.S person the person inside the United States the only reason I mention this is that 702 is not designed to avoid a warrant requirement against people you have to get warrants for is that correct the goal of 702 is to find out about what bad guys or bad girls may be up to overseas regarding us here at home or interest throughout the world and do something about it before it's too late is that the general nature of 702 yes Senator okay now you're gonna have to prove this committee that when you query about American systems in that system citizens in that system that you're not just being lazy getting around the law and these abuses need to stop so Count Me In with Senator Durbin I want to know more about have guard rails but to the members of this committee if we lose this tool we'll pay a heavy price Senator Whitehouse thank you very much thank you all for being here um Mr Olson you and I were both engaged in that 2008 initial process back when I was on the intelligence committee as well as Judiciary Committee so let me just join Mr Abate and his feelings of uh dismay that these errors have been allowed to take place I've been a constant supporter of 702 and it's very frustrating years into the process to have these errors continue um you've mentioned the panel has mentioned the role of 702 and finding out about atrocities committed by Russia in Ukraine can you tell me if that information has yet been shared with the international criminal court I'm I'm not sure I defer to my colleagues about whether it has or not the reason I'd like an answer to that is that this committee Senator Graham chairman Durbin saw to it that a law was passed lifting the ban on cooperation with the international criminal court as it regards specifically Russian atrocities in Ukraine and our understanding from the last conversation we had was that the Department of Defense was stopping the Executive Branch from complying with that law passed by Congress and if that is still the case then we'd like an answer to that so can we get an answer to that in a timely fashion for the committee yes it's the law of the country for the executive branch to cooperate with the international criminal court as regards the investigation into Russian crimes the failure of the executive branch to abide by that law I believe because of the recalcitrance of one agency just isn't consistent with the way things are supposed to work in our democracy so I hope that we've put an end to that problem or solved it but if not we're going to continue to press on that question um Mr Olsen there are three areas that we've talked about with regards to 702 um that are not presently in the 702 statute one is its use to pursue the International organizations that are responsible for bringing Fentanyl into the country and for thousands of American deaths you are currently using the program to Target those organizations correct the program is being used Senator uh for the purpose of gaining Intelligence on fentanyl distribution focusing on individuals and groups outside the United States who are not us persons so let me make a recommendation that you add to 702 a specific authorization for that purpose I think that would be welcome second you've announced a considerable number of uh repairs and reforms including the FBI unclassified Congressional notice that we received today those are all being accomplished administratively correct that's correct at this point I would strongly recommend that you take as many of those as you feasibly can and bake them into the law so work on an amendment that incorporates those reforms so that it now is part of the 702 law that we will be voting on the third is that you have mentioned the role of 702 in supporting American victims of foreign intelligence breaches very often it's a company that is having information stolen out of it Often by PRC related entities and the way you find out about it is that through 702 you pick up the contact with the American company now you have the ability to go to the American company and say hey you have a problem and help them defend themselves is that an accurate description of the way that transpires absolutely both through direct means as well as cyber means is the way we've seen those types of intrusions ever so I would also recommend that you add to 702 specific Authority related to the support for American victims there's no reason that should hide that aspect of the program under a bushel and once it's part of the program there's no doubt that that's a legitimate way for the executive branch to proceed with that my time is up I thank you all for your service and yield back to the chairman thanks Senator Whitehouse Senator Grassley Mr fonzone uh you can't have meaningful discussions about reauthorizing 702 When government reports and Court opinions are heavily redacted and hidden from the public will you commit to declassifying information about the fisa abuses and procedures before the 702 reauthorization deadline and if you can't say yes to that why not yes Senator thank you I think we we've recently released a fiscal opinion and that released that Declassified and really a bunch of information and the law already requires us to review fisc opinions for for classification and release them to the public and we're committed to making more information public about section 702 to assist Congress and then and the public in its consideration of renewing this Authority Mr Olson I heard you say in your opening uh statement about processes you're taking to make sure that people that are abused are are people that abuse this process are going to be uh held accountable you heard about the 278 000 times that it was violated what is the justice department doing to punish folks who have already abused fisa Senator thank you for that question and again compliance uh it includes rules and procedures but it only works if you have accountability um and that's why the FBI has instituted a comprehensive approach to accountability for the agents and analysts who use fisa but abuse the rules um it's on a spectrum for intentional misuse agents and analysts can be fired in fact one person was fired for wrongfully uh violating the rules intentionally with respect to fisa but the vast majority of the mistakes we've seen are not intentional and the FBI has announced today that deputy director bate talked about a three strikes approach of escalating penalties that include notes in a personnel file loss of access to fisa data and other measures to including retraining to ensure that individuals are tracked over time if they're repeat offenders so there's a again a range of of repercussions and discipline and and I know the deputy director and the director of the FBI take this very seriously okay Mr Abate I'd like to have you describe for me the process and procedure that the FBI should normally follow when receiving criminal allegations from a trusted FBI source that an office holder engaged in bribery for example if the allegations include reference to evidence that would prove or disprove the bribery scheme would standard procedure uh operating procedure require the FBA FBI to seek out that evidence senator in in any instance where we receive information and allegation or a complaint you know we apply the standards on the Attorney General guidelines and our uh our dialogue and determine whether the information received the allegation the complete or the complaint meets the threshold for the opening of an investigation we consult appropriately with our field office with our program management elements at headquarters with our office of general counsel and then we take it from there based on the information whether it meets the standard so that's the investigation process that should have been followed with respect to the 1023 apparently that process wasn't followed for the sake of restoring credibility the FBI must explain itself sooner rather than later Mr Olson this is my last question the Washington Post reported your involvement in Mara Lago raid it wrote that quote FBI agents on the case worried that prosecutors were being overly aggressive and further quote Olson appealed to senior officials in FBI headquarters to push their agents to conduct The Raid did you communicate with senior officials at FBI headquarters to push their agents to search marijuago Senator our solemn responsibility in every case is to follow the facts and the law and to do so without fear and favor or favor we are absolutely committed to the impartial administration of justice into upholding the rule of law which includes applying the law equally to everybody as I'm sure you can appreciate that matter is under the auspices of the office of the special counsel and I'm not going to comment further on it is the Washington Post right or wrong so that's a matter that's uh pending uh and it's an ongoing matter and it's being handled by the office of this special counsel so I'm sure you can understand that I'm not going to comment further thank you I yield Senator Klobuchar thank you very much Mr chairman thank you all of you uh for your good work I'll start uh with you uh deputy director Cohen I know Senator Whitehouse asks you asked um uh Mr Olsen about the use of 702 when it comes to drug trafficking and I wanted to kind of dig down on that just because we're seeing more and more fentanyl kill people and also more available on the internet sometimes many times unknowingly when people are purchasing other pills that shouldn't be on those platforms without getting into specifics how is data collected under Section 702 been used to disrupt track thinking networks and prevent Fentanyl and its precursor chemicals from entering our communities what work is being done uh thank you for that question Senator Klobuchar um so we use uh section 702 collection on foreign persons overseas query the database to identify uh individuals tied to uh to organizations that are involved in drug trafficking and in fence at all production in particular it helps us illuminate where the precursor chemicals are coming from often from China how those chemicals get uh to uh overseas oftentimes to Mexico not invariably but oftentimes in Mexico as well as how some of the pill presses that are used to to manufacture fentanyl are acquired again overseas and brought into uh into Mexico for use uh including by uh by organizations such as the Sinaloa cartel um I think that's really important to know for those just talking to families of lost kids who purchasing drugs on the internet that the platforms are being used by these cartels you don't have to go into that but these cartels are actually involved in this so it's not like they can get all their Justice in the U.S and in order to stop this we're going to have to stop it from coming in the ingredients and some of the other other substances is that correct that's correct Sandra okay um um deputy director Abate um the I I appreciated Senator Durbin's words about making sure that these reforms um continue and that they are I appreciated what you announced today and that uh there'll be changes um to the existing um 702 Authority um could you talk about how the reforms the FBI implemented resulted in measurable improvements in the FBI's compliance number one and then number two is there a lag in the publicly available data such that the most recent fisc section 702 certification does not accurately inform the public thank you Senator uh yes with respect to the uh reforms that we've already put in place as the Assistant Attorney General noted um we've seen significant progress uh just the the one that Mr Olson cited on having our Personnel opt-in uh year over year resulted in a 90-something percent uh decrease in overall U.S person query so we've seen significant progress there along with the other reforms that we've implemented on batch queries which are anything more than one we had put in place a requirement that for any batch queries over a hundred it would require attorney review from our office of general counsel I've taken that even further now because I saw some recent examples again where I was disappointed in the compliance error so we've actually cut that down now so that any batch query of any number is going to require a Turn review from our office of general counsel going forward we're also requiring written justifications for our Personnel when when they're endeavoring to make a U.S person query and we're going to continue to iterate on that as we view it as an ongoing process and we're open to any and all further reforms in working with the committee and members here and we're not going to stop until we've achieved 100 compliance okay I was going to ask Mr Olson if you wanted to have anything but before that quick how has the FBI used section 702 to critical uh infrastructure and businesses to protect them from ransomware and other cyber threats because we certainly have been seeing a surge in those uh yes Senator as we said it's a vital tool some examples have already been provided it's with regularity that we see that uh it's helped us literally identify potential victims and victims in the United States both individuals and companies who are either being targeted for Cyber attack or in the midst of an attack already have been it's allowed us to get in front of that particularly with regard to our critical infrastructure to warn victim companies uh before they're hit and prevent the harm from occurring from adversaries like China Russia Iran North Korea and it's been without it we not would not have been able to achieve that goal because you've had some major prosecutions can I just um with your just asked Mr Olsen it appeared he had something you wanted to add on the reform front if I made just two quick points Senator one on on your cyber question it one example is the notorious Colonial pipeline attack back where 702 collection helped us both identify the hacker and it enabled us to recover most of the ransom money that have been paid um secondly your question about the certification and and the fiscal opinions there is a 2020 uh three opinion that is now going through the declassification process that will come out shortly and which does identify some additional improvements in FBI compliance not 100 there are still problems and things that we're still working on that's part of the deal but it it does identify that the FBI has continued to improve its compliance over over the past year okay thank you very much senator cornyn thank you Mr chairman dub I haven't heard anyone say that uh 702 is not essential to our national security and um I believe that's it is essential to our national security so I'm delighted to hear that people are saying that not not claiming that we can do away with it but what you're also hearing is there's a lot of skepticism uh even distrust of the intelligence Community Based on abuses that have been well documented and as you know once that trust is lost it's hard to earn it back um so we're we're a little bit of a Crossroads here I'll remind you that we it was just a few years ago where we tried to reauthorize section 215 of the foreign intelligence surveillance act and we're unable to build a political consensus to do that so I do believe your testimony that this is important our national security so the question is how do we work together to regain the Public's trust and the confidence of members of Congress will be asked to vote in favor of some reforms Mr Abate just you've talked about the the work that's been done at the FBI and I had the I had the opportunity to go look at how the FBI's reforms not the ones you mentioned today but the others in terms of querying fisa information how those work would you have or the FBI director have any objection if those reforms that you've announced that the FBI's announced were codified and written into the law as opposed to just policies of the agency thank you Senator first for visiting with us at FAA headquarters on taking the time we would not have any objection at all from the FBI standpoint to codifying any and all the reforms that we put in place and future ones as well and Mr Bate the uh I was struck by the fact that when the FBI is doing an investigation um and agents not just sitting down and doing a query of foreign intelligence information lawfully collected you're actually engaged in querying more than 100 different databases is that correct yes Senator I don't know the exact number of databases but we do have quite a few and so this is this is not agent sitting down just looking at foreign intelligence surveillance they're looking for all the data points to be able to put together an investigation into a potential intelligence vulnerabilities or to pursue uh pursue protect perhaps crimes so there's been some suggestion and I'll throw this open maybe to Mr Olsen there's a something known as executive order 12 Triple Three which Again by definition is something that the president of the United States has done without Congressional input or interaction but there's been a question raised as whether if 702 were to go away does executive order 12 Triple Three provide the tools necessary to protect our country I I'll answer and and maybe Mr fonzone might have an answer to this as well in his role as general counsel for the dni but the the short answer Senator is no um and the reason the answer is no and and flatly no is that uh executive order 12 Triple Three does not allow for the critical piece that 702 does and that is compelling the the the support and compliance of uh of private uh electronic Communication service providers in other words the the Real Genius behind section 702 was yes it's focused outside the United States on non-us Persons but it also allows the the government to compel the the assistance of a of a provider inside the United States which are often the ones that are providing support or you know communication support to uh the individuals that we're targeting outside the U.S Mr Cohen the um obviously Congress is very much engaged on a bipartisan basis and supporting the Ukrainian people from um on the base after in light of the Russian invasion of their country and the other sort of major issue that seems to enjoy broad bipartisan census is defending our country against the aggression of the People's Republic of China could you speak to how 702 is important in terms of both of those matters the center Corner um I will say uh for both of those uh efforts 702 is involved I can go into more detail uh when we go into closed session but uh but we and with our colleagues in the intelligence Community rely on 702 to to identify foreign intelligence information um that is useful for our analytic work uh in providing uh products to Congress and the administration in the Ukraine context understanding what's happening there as well as a whole host of of products that we write with respect to the challenge that we're facing from the People's Republic of China but I'm happy to go into more detail in a closed session thank you thank you thanks Senator cornyn Senator Blumenthal thanks Mr chairman um I will be interested in hearing how 702 has been useful with respect to both Ukraine and China I can certainly understand as to China I wonder if you could give us a little bit more even in this public setting about how it's been important to our assistance to Ukraine and its fight against uh Russia's Criminal murderous aggression let me um let me take a shot at that uh but mindful that I do think that some of the the real substance would be better discussed in closed session and and so what I will say in and picking up a little bit on the the answer to the prior question is that our our adversaries whether they're Russians Chinese Iranians North Koreans terrorist organizations um make use of U.S Communications service providers um and if there is a reason for uh for believing that we have a uh some Foreigner operating overseas who is using the communication uh service that uh that is provided by a U.S service provider we more likely the NSA will Target uh that foreign person overseas to collect the intelligence that collect those Communications we can then query the the database of information that is collected on those foreign persons overseas we run queries NSA runs queries obviously FBI runs queries against this database of information that is collected uh when it is reasonably likely to retrieve foreign intelligence information and we do that in the Ukraine context we do that in the context of the People's Republic of China in another context where we have National Security and in the Ukraine context we can play a part in supporting Ukraine through sharing our intelligence correct there's a whole host of ways in which we're supporting the the Ukrainian governments with intelligence sharing uh and you know it involves you know the full swath of of collection that the United States is involved let me ask you um as you may know and I think we've talked about it in uh in our conversations in my office I've been a long time advocate of some more robust adversarial process within the section 702 fisa procedure uh in 2015 Congress took an important step in codifying the Amicus responsibility uh my numbers are from 2015 to 2020 there were 1 200 fisa applications but just 19 Amicus appointments and in 2017 the only Amicus at the time with significant criminal defense experience in the fisa context resigned because he hadn't been assigned to a single case those numbers tell me that the president Amicus process is not providing really robust or sufficient adversarial procedure when we all know as lawyers that our justice system thrives on the adversarial procedure this area is the one part of our justice system where we have no such adversarial process because the subjects of 702 collection likely will never learn that they've been the subject of this process so uh what is your position on on this issue um I think I know what it is but I'd like you to State it for the record if you would sir okay Senator is that a question for for Mr Olson or for me whoever would like to answer why don't I turn over Mr Olsen who uh who I'm happy to answer that question Senator we I represent that I mean lead the National Security division we represent the government before the foreign intelligence surveillance court so we're directly involved in in the process that you describe um first we are open to reforms as I said at the beginning that preserve the essential effectiveness of section 702 so if there are reforms for example uh to the fisa court process we're happy to engage with you and other members of Congress as we think through how those would work when it comes to the Amicus uh process the fisa court can ask for an amicus to be appointed in any case and they they do so in any case involving a novel uh or complex interpretation of fisa and that's the cases that are the hard cases where they do have an adversarial process through the Amicus appointment the vast majority of of fisa applications are basically the same as the ex parte process that occurs in a title III criminal uh application which is not an adversarial process but rather criminal it's not but eventually there is likely to be a challenge that's correct and in this instance there's likely to be no Challenge and so the the Privacy interests arise not only where there's some new major novel interpretation of law but as you well know you know a lot more than than I do at least uh the case by case decisions often turn on interpretations of law that are challengeable and that's why an adversarial process would provide a lot of reassurance I think to this committee and the American people again we're open to having this conversation and engaging with you on this I do it is my view that the vast majority of fives applications are basically facts against the probable cause standard they don't involve novel interpretations of the law and they are done on it on a level of on a with a degree of urgency you know multiple times a week that would does not lend itself to the sort of adversarial back and forth process that an amicus would introduce and it would so there's some serious risk to a having for example an amicus in every case thank you thank you Senator Blumenthal Senator Lee over the past 12 and a half years I've raised significant concerns in hearing after hearing after hearing about fisa and the FBI's shocking disregard for Americans constitutional rights and civil liberties I've been given basically the same answer by FBI directors and Attorneys General and other officials during free presidential administrations involving both major political parties the answer every time is a variation more or less of the following just trust us don't worry we've got good people law-abiding people running this and we've got lots and lots of procedural safeguards in place to prevent this type of abuse that you're facing here these aren't the droids you're looking for that's what we're told here again today just uh the last 24 hours we got a new policy this one this one's finally going to fix it you tell us this one's going to do it and meanwhile what's happened well in 2019 Inspector General Horowitz issued a shocking report confirming a lot of what I had feared over the years but had found it difficult to to prove a report regarding Crossfire hurricane the FBI's secret surveillance of Donald Trump's 2016 presidential campaign and then a subsequent memorandum dealing with the FBI's failure to maintain these so-called Woods files which Woods file is basically the evidentiary record underlying a fisa order request in violation of FBI policy year after year in hearing after hearing we hear of instances of non-compliance including the disclosure just last month that the FBI illegally surveilled 19 000 donors to a Congressional Campaign Americans participating in protests in the summer of 2020 Americans who were in Washington DC on January 6 2021 and even a sitting member of Congress hundreds of thousands of searches of Americans private Communications and information are conducted each and every year without a probable cause warrant frankly without any warrant if conducted under Section 702 now let me be very clear that number should not just be going down that number should be zero every quote unquote non-compliant search involving U.S persons violates an American Citizen's constitutional rights and get every gear the FBI claims that we should just trust the FBI to fix the problems internally well first they tell us there are no problems then they tell us we will fix them because we've got good people and we've got new policies at this time this time it's going to be different only later we find out that the FBI conducted more and more illegal searches in violation of Americans constitutional rights than the last time we addressed the issue so it's hard not to conclude that the only thing the FBI wishes it could fix here is the possibility of getting caught this is what I find so insufferable this is what I find so incredibly insulting look I I want to Echo Senator blumen's thaw's point a minute ago and I hope every American can can take note of this this feature of this this is unlike other court proceedings we call it a court and yet it doesn't have any of the trappings of an ordinary Court there is no adversarial process we're told a moment ago by Mr Olsen that it's okay it's okay because the fisa court has the ability to appoint an amicus anytime it feels necessary to do so well why not in every case and even if there is an amicus what interest does the Amicus have that's on par with the individuals affected the bottom line is you collect all this data and then after you store all that data some of it involving Communications the content of individual individual phone calls emails text messages whatever it is the content not just the metadata but the content you can do a backdoor search on that without a warrant predicated on probable cause that is itself an affront of the Constitution that is itself something that is always going to lead to constitutional violations and it must stop we've got an opportunity this year to make necessary reforms and we must do it but while we've got you here Mr Olsen uh and Mr Abate why should we ever trust the FBI and the doj when it comes to this issue uh uh whether under the current Administration or under a future leadership why should we ever trust the FBI and the doj again to police themselves under fisa when they've shown us repeatedly for more than a decade that they cannot be trusted to do so foreign thank you for the question obviously section 702 is an invaluable intelligence tool that's beyond dispute it's also one that's very powerful and it must be used responsibly and I I share the frustration that you express with the lack of compliance that we've seen in past years from the FBI I'm not here to defend those compliance problems what I can tell you is that those compliance problems predate some of the very significant changes that the FBI has put in place I will not say that compliance problems will be zero next year we are not saying it as I think you mentioned that we'd say we're done this is an ongoing process we will continue to try to improve we will work with you and your staff and other members of Congress to make sure that we're implementing procedures and policies training and other measures to continue to drive down these errors and compliance problems but in the end the tool itself is so incredibly important to our National Security that I believe that's its essential Effectiveness must be preserved Mr Robotic Senator thank you uh I share your concerns as well and I take this seriously and with regard to the fisa 702 since I've been in this role and under the leadership of director Ray we've made significant changes ones that have never been named before and there has been a lot of progress but we're not going to rest on our Laurels we're going to keep driving ahead continue to implement reforms as required taking guidance and counsel from the committee and other members with regard to Crossfire hurricane what happened there was wholly unacceptable uh we agree with the findings set forth by Inspector General Horowitz and special counsel Durham we've acknowledged that in the past and going that's 2017 and earlier that conduct occurred not under direct array's leadership or when I was in this position we have an entirely new leadership team we've implemented very strong corrective actions the poor decision making the grave errors of judgment the misconduct the lack of rigor investigatively that occurred there totally unacceptable we rejected we hold people accountable for that now and everything that we've done on the work on the mission since that time we've worked to avoid those mistakes and apply the Lessons Learned of the past and anyone we find who goes against that they are not going to work in the FBI and they will be held accountable for that period great to know Congress has got to fix this problem and stop trusting the surveillance state to fix it it can't it won't we know that because it thank you Senator Lee Senator hirona thank you Mr chairman Mr chairman I share your concerns about the regarding U.S person queries without warrants and the concerns expressed by a number of my other colleagues so this is one of the reasons that I have not been able to vote for reauthorizing 702 and when I'm thinking about a warrant in this context I am thinking about something much less involved than a typical fisc order and much more like the search warrants that are issued in countless courthouses in our country every day last year Federal magistrate judges considered over 140 000 search warrants probable cause is not a high bar and magistrate judges are used to evaluating it different provisions of faisa already allow Federal magistrate judges to issue certain fisa orders and i would support a discussion about expanding that authority to this context for Mr Olsen so you've had a chance to we've we have met to talk about why can't we have a warrant requirement the department opposes a warrant requirement because you argue that many of the queries are done before the FBI has probable cause which says to me that if you had to meet a probable cause requirement that would already decrease the number of applications so do you have any reaction to the idea of using Federal magistrate judges in a warrant requirement process thank you Senator and I appreciate the opportunity to meet with you uh and your staff um and to discuss these important issues um the the warrants requirement that has been discussed when it comes to section 702 I think is not workable and not legally required and let me explain why first every judge that's looked at this issue every federal judge including judges on the fisa court have concluded that a warrant is not required under the Fourth Amendment for searching the lawfully collected data that is in the FBI holding so there's no legal requirement but putting that aside because there are indeed privacy and civil liberties implications to the FBI searching for with the U.S person identifier the the fundamental problem is that such an approach would be unworkable and I go back to the hypothetical that Senator Graham described which is assume the military our military obtains a cell phone in Syria and that cell phone has a hundred phone numbers on on it 30 of them are U.S you know U.S phone numbers and the person that they get it from is suspected Isis member who's apply fighting against the United States there may not be in fact likely wouldn't be probable cause to search those phone numbers in the FBI database but with time being of the essence it's absolutely critical that the FBI along with other components within the intelligence Community take those phone numbers and determine whether or not we have an Isis operator inside the United States who's plotting an attack so we would not have probable costs we wouldn't be able to take that step it's not legally required and if we were required the sheer number of of such requests would simply overwhelm the system there's no number of fisa Court judges or even magistrates who would have clearances for example who could possibly manage the number of queries so it's both not legally required and it's not workable and it wouldn't protect us you mentioned that all of the courts that have address the issue of of a Fourth Amendment issue said they have all found that section 702 does not require such warrants but I have information that that is actually not the case I don't know what what specific questions were before particular course but several judges including a unanimous panel of the second Circuit Court of Appeals have raised constitutional concerns and you note that you would want a U.S person inquiry in the instance where there is a definite connection with the terrorist for example but how do you justify the querying of American protesters for example or people who have made contributions I think that the the 702 is way too broad it does raise constitutional questions and I'm just searching for some way that is not going to stop the legitimate reasons for for why we need 702 but also to address is the Constitutional questions and and it occurs to me that maybe having magistered judges who are very used to determining probable cause can be can be utilized in this regard so that you're we don't have the situation of protesters information being accessed or political con contributors that that has no connection to to terrorists for example so you know I I am hopeful that we can figure out a way to to find some way I think I heard you say that you're okay with some reforms and I know that the FBI recently put in a new procedure called well where you record the justification for all U.S person queries I would be interested to know what kind of record recordation is it and who determines whether justification was there so perhaps you could maybe you can give me a little bit of a Enlightenment as to what this record the justification is yes Senator yes within our system the automated system when the FBI employee who's seeking to do the query the written justification has to be input into the system and it's retained there uh in the records in recoverable uh forever with respect to that query um and we've we're making the system uh adaptations right now to fully put that into place and ensure that those records are retained and that they're reviewable and auditable my time is up but I would have a concern as to whether there is any kind of a third party independent third party per a person who reviews whether there was justification if I may just very briefly Senator that's in fact what the lawyers in the now security division do the lawyers who work for me do exactly those audits of the FBI queries about half the field offices each year uh we review all of the queries that were done and we review those justifications those written justifications to ensure that they meet the the legal standard for searching for searching the data so again I appreciate your interest in and look forward to working with with you further on this Senator Kennedy is recognized for five minutes thank you Mr chairman um I guess my comments will be directed to Mr Abate am I saying that right yes Senator and Mr Olsen perhaps to all of you um no fair-minded person can doubt the efficacy of the of section 702 but here's the problem you've got just when the FBI which I think um which I think is is is is is the most uh effective law enforcement agency in all of human history just when the but people are people and just when the FBI is has rebuilt itself after former director Hoover Along Comes Mr Ray's predecessor who clearly did not understand how to exercise power either intelligently or mercurily he decides to investigate in a public way not only one but both candidates for president of the United States and to do it publicly and the leak like the Titanic he and he investigates the Republican nominee with the flimsiest of evidence that has been manufactured that he the FBI director at that time didn't even bother to to examine and then he turns to the Democratic nominee with respect to her email servers investigates her calls a press conference says well I'm I I not we I am not going to prosecute her but but she needs to clean up her act she's been negligent and then a little time goes by and he opens up the investigation again in a public way on the Democratic nominee and says I'm opening this up and a few days later he closes it down might have cost her to the election and then we start having reports predictably come out after that the Durham report the Mueller report the Horowitz report and it did extraordinary damage to the FBI and frankly to the Department of Justice now Mr Ray um who I supported to replace Mr Comey has said he has reformed the FBI we just don't know how we have no idea I don't have any idea I do know stuff keeps happening I mean one of your agents that was involved in the Mr Hunter Biden's investigation um goes on social media apparently for a long period of time and trash is all Republicans he got fired only because Senator Grassley caught him and all this hurts you and it makes a fair-minded American look at this and go whoa you know this is enormous power you have and it can be used for the greater good but it also can hurt people and we've got to come up with a way to make sure that the right people are using this this this law enforcement tool and that's that's the problem you got you know if if I were you um I'm not I don't have your expertise and I thank you all for your service but if I were you I'd try to be coming up with a way to con to suggest to Congress how you can check this power that you have so that the FBI and the Department of Justice and the other agencies can can can can can regain their reputation and tell us what you think that doesn't mean we won't come with our own ideas you know uh Senators don't take orders most of them barely take suggestions but it would be helpful to me if you would come up with your own ideas to address these concerns not just our concerns but the concerns of the American people I don't want to live in a country where if the FBI knocks on your door the first thing you have to do is wonder whether the agent is a Republican or a Democrat and and thanks to Mr Ray's predecessor that's where we are folks I know that's a cold dish of truth but I think that's the truth so I'm gonna I'm gonna read your testimony I need to learn more about this but help us figure out this problem thank you gentlemen uh chair Durbin has stepped out and left me to chair in his stead and I'm also I'm like you better she's doing a hell of a job not in public Senator Kennedy please you're doing a hell of a job okay so uh I have the um the privilege of sitting on both the Judiciary and intelligence committees and let me just start by saying I think there's no serious doubt about the collection value of this overarching Authority and the most important question that we need to be focused on at this hearing is U.S person queries that is the principal source of concern for me and I think for many of my colleagues and Mr Olsen it's the case is it not that the FBI can query this database for U.S person Communications simply seeking evidence of a crime it does not have to be a national security investigation correct it is correct Senator thank you for the question that the FBI can search using a U.S person identifier for either foreign intelligence or evidence of a crime but there must be a reasonable basis to believe that there is information in the section 702 data that would be responsive to such a query yeah why should there not be a warrant requirement for these searches which are known as crime only searches whereby FBI agents are seeking the communications of Americans either considering opening a criminal investigation or in the midst of a predicated criminal investigation so why should there not be a warrant requirement for such a U.S person query so so stepping back for a moment if I may just to provide just for a moment very quickly section 702 is a foreign intelligence tool it's not a law enforcement rule so why is it used for domestic law enforcement purposes it has been used exceedingly rarely where a query using a U.S person identifier uh would have identified information that did not have a foreign intelligence purpose so outside of the Nash security realm not involving a terrorism or Espionage or cyber charge or investing yeah so it can be used for this purpose and it has been used for this purpose 2022 six it was 16 different times 14 of those times where it was used for evidence of a crime only were where the US government had an affirmative Discovery obligation to search well we'll get into those numbers in a second but it begs the question if it's so rare as you state why not go get a warrant I think I think the initial idea was that there would be occasions perhaps where an agent or an analyst would find evidence of crime only not National Security information in the 702 data and would want to be able to use that and it has happened that an agent found evidence of child abuse while looking at section 702 data so pure evidence of a crime we're talking about seeking evidence of a crime only we're not talking about encountering evidence of other crimes in the course of querying foreign intelligence information we're talking about U.S person queries whose sole purpose is investigating domestic crime why should that not require a warrant the the reason for not requiring a warrant is that this is lawfully collected information that is in the FBI Holdings and to Simply wall off the FBI for example in the child abuse context from seeing that information and using it would prevent them from being able to that's a different fact pattern that's encountering evidence of a crime in the course of conducting foreign intelligence investigations this is a question I think that the committee needs to look into I want to talk about this question of justification we got a document last night about 12 hours before this hearing announcing some new reforms I want to read back something that you said to chair Durbin in this hearing you said starting in 2021 the FBI agent or analyst had to actually affirmatively take the step that I'm going to conduct a search using a U.S person identifier and then say why that was reasonably likely to return foreign intelligence information this is the justification for the query but has to be entered into the system but it's the case isn't it that until 12 hours ago when we received this they only had to enter that justification if they actually looked at the results they did not have to enter that justification to enter the query correct that's correct it was only if there was responsive information from the query at that point there would be the obligation to right so they can they can enter the query and they're going to see substantive information before they view the full results aren't they going to see a number of results they may see some metadata they may even see some preview content correct I don't believe that there would be any opportunity to review any content of the of what was produced in response to the query before entering the justification no metadata I'm not sure about that well it's metadata either way isn't it because it reveals whether or not the U.S person being investigated has had contact with anyone in the FBI's portion of the underlying 702 database correct it may simply be sent I don't know the exact answer it may simply be a response that there is responsive information in the data but nothing further I'm out of time but let me just say so as I said at the beginning I don't have any doubt about the foreign intelligence value of this but the U.S person query aspect of this is really concerning to the Congress I don't think you've effectively made the case that there shouldn't be a warrant requirement whether or not it is constitutionally required for a U.S person search that is crime only and it just it it undermines the the feeling about transparency when you and your colleagues making the rounds for the last few months about you know touting the reforms you've implemented have been explaining to us that well ever since the reforms were made we have to State a justification for the query when it turns out that you only had to State the justification for the query if you actually decided to look at what the search revealed so U.S person queries is an area ripe for statutory changes Mr chairman thank you thanks Sandra Senator Cruz thank you Mr chairman gentlemen every day when I'm home in Texas I hear from Texans who are deeply dismayed about the growing politicization and weaponization of the Department of Justice and the FBI if you or not every one of you should be deeply concerned about the damage being done to the Integrity of the institutions in which you operate my office hears regularly from FBI agents and from assistant U.S attorneys who are likewise concerned about the politicization and weaponization of the Department of Justice and the FBI and this is profoundly damaging to the rule of law in our nation last month a whistleblower brought to life the existence in the FBI of a report in fd-1023 in which the informant alleges that President Biden and his family members engaged in a 5 million dollar bribery scheme during his time as vice president deputy director abadi is it true that the FBI has a report making those allegations I'm not going to comment on that Senator and why is that I'm just not going to comment on uh information we received investigations you have an obligation to the American people to be candid about evidence of corruption by the president of the United States this is a an area that I'm not going to get into with you Senator well I understand you don't want to and that's why people are mad at the FBI because you're stonewalling and covering up serious allegations of evidence of corruption from the President yesterday Senator Chuck Grassley stood on the senate floor and alleged that there are 17 recordings of this informant from barisma Ukrainian Natural Gas Company 15 of them are recordings voice recordings of him talking to Hunter Biden two of them are voice recordings of him talking to Joe Biden deputy director Abate does the FBI have 17 voice recordings laying out evidence of a bribery scheme Senator at all I would add also that we've worked with the house oversight committee yeah this is the Senate where the other side of the capital this is the Senate do you have those 17 recordings I'm not going to comment on any investigative matters Senator see that's the problem the FBI and I've had this conversation with Chris Ray too this is why you are damaging the institution the American people have a right to know whether there is serious credible evidence that the president of the United States took a 5 million dollar bribe and by the way if it's false chairman Durbin just rolled his eyes if chairman Durbin were interested in the rule of law we would have a hearing on these allegations but of course the Democrats don't want a hearing on these allegations and to be clear if the allegations are false you know who could disprove them Joe Biden he could call for this to be released publicly but the FBI is stonewalling my question I just answered your question okay so yes you have a 10 23 do you have the 17 recordings yes or no I'm not going to get further into that so you're stonewalling you can't say I'm not refusing to answer your question but I won't answer your question I'm going to answer within the parameters that we operate in that's the problem the FBI has right now an unlimited hubris that you believe you are unaccountable you don't believe you're accountable to the United States Congress and you don't believe you're accountable to the American people and you are doing damage the FBI is a great institution when I go home to Texas people ask me should we abolish the FBI now I tell them no because you have Heroes and Patriots working for you that are catching child predators that are catching terrorists but you're sitting there happily erecting a wall to protect Joe Biden will you provide to this committee not the house the Senate Judiciary Committee will you provide the fd-1023 and will you provide the 17 recordings so we can assess what is the evidence the specific credible evidence that Joe Biden personally took a five million dollar bribe from a foreign National Senator we will work with this committee you and other members to provide the information within the parameters of the process well you provide the fd-1023 yes or no I will take that back and we will work with her so you're not answering that will you provide the 17 recordings we will take that back and we'll work with you so you're not answering that either did you investigate in any way shape or form these allegations Center once again I'm not going to comment so you're not going to say whether you did your job we do our job to the very best of our ability well not here you're not answering a single question to the American people and you may think this is esoteric I promise you millions of Americans are concerned you know who isn't concerned not a single Senate Democrat we're going to go through this whole hearing not one Democrat will ask a question about this you know who else isn't concerned the corporate media who is joining with the Democrats in covering up this evidence if Joe Biden is innocent the evidence should be made public and demonstrate that he's innocent but if he is not is it true this informant who alleged that he personally took a bribe was an informant the FBI had relied upon previously in other investigations yes or no senator in each and every uh investigation that we have all the work that we do the expectation is that every logical Avenue investigation people I asked you a yes or no question are you going to answer it yeah I'm answering your question was the informant one you had relied on previously in other investigations yes or no Senator we run down every piece of information you're not answering it then so you're refusing to answer the question the fullest extent possible refusing to answer the question in small instances Senator it's disgraceful deputy director Abate disgraceful Senator your time has expired Senator tilts what's up chairman I think Senator Blackburn goes before me are Senator Welch I appreciate the opportunity but thank you Senator Tillis it's Senator Walsh is next uh thank you Mr chairman I want to thank all the witnesses uh I'm sitting in a seat that was uh previously occupied by Senator Leahy who is a champion of civil liberties and a strong supporter of law enforcement his own prosecution background but he uh and with the great support of vermonters very much was concerned about the civil liberty questions that are raised and I've heard from all of the witnesses you share that concern and I certainly do what chairman Durham said in his opening remarks in expressing his very serious concern about the extraordinary breaches I share that so A couple of things one uh Senator cornyn had asked about codifying in statute reforms that have been made in my understanding uh I think discussed you Mr Olsen is that you would be supportive of any of the reforms that are made to date being codified in statute so it wasn't another episode of trust me and we'll try to get it right and I think that's that's exactly as the deputy director said I mean the the fundamental point is we are open to engaging on reforms and implementing reforms that don't undermine the essential effectiveness of section 702 certainly but codifying and among those would be right uh putting in statute where it makes sense to do so uh some of the changes or the changes that the FBI has implemented on its own uh to ensure in compliance I just want to make certain that we're on the same page here because it's one thing to say trust us we've learned and will be good in the future it's another thing to have the force of law behind it I'm being a little I'm hesitant only because as the lawyer here next to Mr Abate I just want to make sure that we'd want to make sure that the language in any statute is well of course that goes without saying now another thing I know Senator Leahy and Senator Lee I'm sorry okay Senator Leahy and Senator Lee worked on dynamicus Amendment as I understand that Senator Lee and by the way he very much appreciated working with you on that he's told me uh my understanding is your resistant to that you're saying for practical reasons uh but keep in mind I think the motivation of Senator leahyad I'll speak for my conversation with him and I've heard Senator Lee express it uh the interest of maintaining Fourth Amendment protections for Citizens is constitutional and invalid so I would expect to advocate for that again I you've answered the question but I just want to bring that to your attention you know the heart of this is this question of whether there is an exception that on the warrant record the warrant protection when a U.S citizen gets swept into this and I know uh Mr Assaf asked in my absence about the warrant protection but I am wanting to go back on that why can't we have a warrant when it does involve a U.S citizen and can you make distinctions between a situation where there's imminent urgency and obviously that requires a different kind of action where versus those situations where information comes up my telephone number is on a a on a telephone that's been captured on the battlefield but there's no urgent matter that has to proceed with action what's the problem with providing a continuation of the warrant protection that is available to all U.S citizens outside of fisa maybe Mr fonzo might have more to add to this but let me just say stepping back so it's really important to us to make for me to be clear that when it comes to the targeting decision the initial decision to Target that is outside of the Fourth Amendment because the targeting decisions are focused on non-us Persons overseas it's only when the FBI I understand that yeah it's only three percent of the all of the 702 collection that FBI has access to where it's related to an open FBI investigation so they have three percent of the lawfully collected information and it's very common rather than rare that the need to search that data whether it's an ongoing Cyber attack for example um or or Espionage effort that it is not a degree of urgency to quickly be able to say at the very earliest stage of an investigation we need to understand does this technical identifier associated with this Cyber attack is this hitting other you know hospitals my time is coming up and we'll have to There's real practical questions here but I go back to this absolutely astonishing situation where folks who showed up here in Washington it was totally domestic or black lives matter totally domestic uh were searched and like how in the world did that happen somebody just felt like doing it or what I know my time is up so I might have to stop it I just want to convey my ongoing concerns which I think many of the committee members share Mr chairman thank you very much thanks Senator Welch Senator Blackburn um Mr abadi I want to come to you because tennesseans are incredibly concerned about the politicization of the FBI and they have watched the FBI Target parents people of Faith people with conservative values and I am often asked what group is going to be next and how did we get to this to this point because they have watched the FBI under your leadership draw their guns on a pro-life advocate that was stunning to them that was done in front of his wife and children they have labeled parents interested in education as domestic terrorists and all parents should be interested and are interested in their children's education they watched the raid on a former president and a political opponent on his home and these have confirmed their worth worse fears that there are indeed two tiers of justice and that there is a political cabal within the FBI that sees it that way because when Hillary Clinton mishandled information and she wiped her email server with a tool called bleach bit and then beat the mobile devices with a hammer and destroyed those SIM cards you all basically said there's nothing to see here there is nothing to question and when President Biden mishandled classified documents there was no raid on his home or on his offices but you see how president Trump has been handled with this so it looks like the old Playbook of distract and deflect and the American people have a right to be concerned about this now I want to talk about Senator grassley's information from yesterday because when the FBI produced the document that you refer to earlier relating to the Biden bribery allegations and you gave that to house oversight you all redacted any reference to the fact that the foreign National who allegedly bribed Joe and Hunter Biden had those 17 audio voice recordings so first of all why did you redact that part of the information Senator first um as I said before your assertion or anyone who makes the assertion that the FBI is politicized I reject it wholeheartedly it's wrong and it is not true the work we do okay I'll ask you this you said in your response to Senator Cruz that you and the FBI do your job to the best of your ability so why don't you tell me what your job is is it to defend and chill Joe Biden or is your job to protect this country and the Constitution of the United States which is it the job of the FBI is to protect the country keep people safe and uphold the constitution of our great country that's what we work to do every day objectively there are not two standards of Justice there is only one it's applied equally each and every person exception there are two standards very clear standards of Justice in this country we see it every single day the American people see this every single day they look at you and they see a politicized entity that is weaponizing an agency of the federal government against the American people that is not the FBI that I see Senator that is not the FBI you see there are a lot of good people that work for the FBI but you have a political cabal there so why side to conceal the information in that Revelation to the house oversight committee why did you redact all of that re pertaining to the phone calls we have exceptional people within the they're not answering the questions why did you redact that information they work relentlessly every day to keep this choice not to reveal that the calls were there and Senator Grassley found it out anyway is that accurate with regard to the challenge you chose to redact it yes or no we often redact documents to protect so we chose to redact the the fact that there are 17 voice recordings two of those with the noun president you chose to redact that and not to give that to house oversight is that idea if there are voice recordings are not what I will tell you with respect to the document no the document was redacted to protect the source as everyone knows well then this is a question of life my time has potentially inspired but I think it would be helpful if when you came before us if you were willing to answer the questions it would help to remove the perception that the American people have because this is what they see they see you do it every day and that is politicizing the FBI and using it against the American people who don't happen to be named Biden Clinton or one of the elites thank you Mr chair Senator holy thank you Mr chairman Mr body let me just stay with you you just started to answer Senator Blackburn's question that not releasing the 1023 or talking about it as a matter of life and death question of life and death you said explain it is potentially a question of life and death for whom with regard to the source of the information so okay so now we've confirmed that the document exists that's progress because the FBI director initially denied that it exists why did he do that we we have already and previously acknowledged the existence of the documents yeah after you first denied it now when a member of this committee read it right the FBI let's just get the record straight the FBI director initially said it doesn't exist then Senator Grassley said I've read it then he said oh okay well gotcha I guess it does exist now you're going back and forth with members of this committee what's in it why don't you just release it is it classified the document is not classified okay will you commit to releasing it Senator will take that back and we will work with you and this committee uh how about just say yes or no will you commit to releasing this unclassified document that alleges that the president of the United States the president of the United States has taken five million dollars or more in bribes from a foreign Nation the document has already been released pursuant to a subpoena to the house oversight committee has it been released to this work with this committee within the parameters that are established will you release the document to the public it's unclassified don't you think the American people have a right to see it uh Senator the document as you know contains sensitive information that has bearing on the life of the source of the information potentially you can redact the source's name we do this all the time in some instances Senator and I know you know this that is not sufficient to protect people and that's what we strive and work to do each and every day and I hope you would take that seriously too oh I take it very seriously but I also take seriously the fact that your institution has repeatedly abused its Authority has repeatedly targeted political opponents your institution is the one that went to the door of pro-life protesters with SWAT teams to try and intimidate people because of their speech your institution is the one that treated parents as domestic terrorists because of their speech your institution is the one that according to the court the fisa court ran 278 000 unwarranted probably illegal queries on Americans right that was your institution correct with respect to the compliance incidents yes some of the other things you cited we can take them one by one they are not compliance you you would characterize the unlawful querying 278 000 times of American citizens as compliance issues we've said before I've said that that totally unacceptable who's been fired for it individuals involved are handled through the disciplinary process who's been fired for it we have there will in the in the case of the uh unintentional instance where something similar happened we have fired people in the past well I'm sorry what what does that word salad mean the unintentional instance where some what does that mean who's been fired for the 278 000 times that you improperly or illegally query the database for American citizens anybody when we find intentional incidents well you're saying that the 278 000 queries were unintentional I believe that's correct wow 278 000 times American citizens information was queried by your agency unintentionally that's your testimony I would want to go back and check that Senator uh my understanding is that the vast majority of wait that's different you just said it was you just said it was unintentional now it's the vast majority which is it do you know I would want to go back and check it so you don't know my understanding is that likely all are were unintentional likely all so first it was all of them then it was vast majority now it's likely so you don't know is the answer to the question I don't know the answer as we sit here today but I will finish that probably who was fired for the lies to the fisa court for the Carter page Warren who who was fired for that anybody has anybody been held accountable for your institution deliberately lying to a fisa court to get a wiretap on an ongoing presidential campaign there is an ongoing disciplinary process with respect to individuals involved in that here's the deal you're back in front of us asking for the reauthorization of extraordinary authorities multiple courts have uncovered extraordinary abuses perpetrated by your agency you are at the same time concealing information about serious allegations made against the president of the United States even as your institution also targets his chief political opponent in an unprecedented way why would we ever give you the blank check that you want to continue surveilling American citizens in an improper manner why would we ever do that Senator we're here to talk about reforms today I did get confirmation that the query no we're not we're here to talk about the reauthorization of section 702 why would we reauthorize it given your track record of abuse and illegal and proper surveillance and political targeting why would we do that why would it be appropriate for this body to do that we've made significant reforms and implemented corrective measures we've seen significant progress as a result of that Senator the uh so worries that you mentioned earlier were in fact unintentional that's what I was just told by my counterpart so your testimony is the 280 000 queries of American citizens was unintentional that's your final answer that's how they were assessed by that team that did the review I'm not satisfied with that that's why I don't believe that implemented further measures as I announced earlier today yeah I I don't believe that at all and frankly we've heard from your agency a thousand times that you're going to do better we'll do better you promised after the abuses of Title One you do better and then we find out that in the meantime your illegal queer illegally querying 280 000 American citizens data it's just it's unbelievable frankly everything you say is unbelievable Senator Tillis thank you Mr chair thank you all for being here and thanks to all of the hard-working law and federal law enforcement officers that I believe are overwhelmingly majority good Patriots doing a great service and keeping our country safer um I appreciate the documents that you all sent over particularly we can talk about what it's doing a couple of months ago I went over to the FBI I saw a demonstration of many of the changes that you've implemented on the online query system I think they're very promising it also begs a question why did we have it before but we've corrected that mistake um Senator cornyn mentioned codification I had that discussion with the Department of the changes Mr Abate that you all have made I also would encourage every member to see this in action and go through the demonstration that I did I think it's positive progress but I had a question for you uh Mr Abate on the the three strikes I'm trying to figure out how we get to reauthorizing section 702 it would be irresponsible of us to figure not figure out a way to do it it's critically important very important tool um the three strikes thing though kind of struck me as uh why should anybody get past one strike I mean and to me uh there are whoops I just didn't know just finished training maybe that's a legitimate reason but three strikes against the controls that you're putting in place before what action occurs what what happens with strike three I'm assuming they're out but what are they out of it could include everything up to dismissal Center and I I think it's important to clarify here that this three strikes applicability refers to those that are deemed to be those compliance errors that are incidents that are deemed to be unintentional and it's an escalating approach with respect to this three strikes if someone was to unintentionally commit an error like this uh three times then they would be referred for a greater discipline in addition to the things that come into play their fisa access would be removed upon the occurrence of the first incident they would undergo a full mandatory uh retraining they would have to sit down and be counseled by one of the attorneys from our office of general counsel and it gives us the ability to you know evaluate the conduct and determine whether it is truly unintentional or whether it should be elevated to the category of Reckless or even intentional which would warrant more severe disciplinary action one of the things I've struggled with as I've looked at the compliance incident incidents and this gets back to the senator other senator's earlier question those that are unintentional given the measures we've put in place now with the system adaptations the prompts with regard to sensitive queries the written justification the parameters around batch queries and sensitive queries in the opt-in it's hard to imagine that it would be unintentional if someone pushes through all of those measures in order to run a query that is found to be non-compliant and that's part of the strength of the sort of regime of reforms that we've put in place now because prior and this was not satisfactory to any of us many of them were categorized as unintentional when they may not have otherwise been and they may have risen to the uh level of recklessness or even intentionality could you talk a little bit about I think that with Crossfire I mean people have raised some concerns and I think rightfully so about Crossfire hurricane we we all know it um that was mostly Title One I suppose section 702 do you agree with that and can you explain the differences I do agree with that Senator that was title one uh fisa that's the traditional fisa where we go to the fisa court it involves a U.S person and I'll defer to my colleague here to get in the legalities but we are in those instances we go to the fisa court we have to establish probable cause in order to get authorization to implement surveillance on the individual targeted uh Mr Ellison in response to I think one of Senator ossoff's questions about uh uh this information being used in an investigation you you I think you uh stated a relatively small number of people who are actually swept into that category can you elaborate a little bit more and over time are we seeing fewer of those is that because we're getting trained better or it's just because we're honing our investigations sure when we were talking about is the FBI's authority to conduct a query of the data it has access to for simply evidence of a crime that is not necessary related it's exceedingly rare and it's it's it's rare because there has to be uh we're talking about a database that is a foreign intelligence database so the odds of finding simply evidence of a non-national security crime online bank robbery public corruption in a foreign intelligence database is is just so unlikely um and that in in the last recording period there were 16 instances but actually 14 of those 16 instances was where the FBI had an affirmative obligation to search for evidence of a crime because of Discovery or Brady obligations in an ongoing case um so it is not obviously the main purpose it is I would consider sort of a backstop or Fail-Safe if there is evidence for non-nes security crime that the FBI would want to see or follow up on but it's just so exceedingly rare it's not the focus certainly of our our efforts well my time's expired but uh I would encourage as of as I said after that demonstration of the changes that you've made that we need to see a meaningful legislative proposal on the codification of all the measures that you put into place and I think probably based on the comments you have here this is not an ideological dispute for the most part you've got different people supportive other other people that want to go dark we need the department to fairly quickly get us some baseline texts that those of us who want to get it reauthorized can begin to explain how we're addressing the problems that are legit problems and every member here who's frustrated has a reason to be thank you all thank you Senator thanks Senator tell us pursuant to the procedures and traditions of the committee when it comes to the debate of 702 we have a session reserved in the skiff SVC 217 as soon as we adjourn today and I don't know we think several colleagues are going to come to that meeting to ask questions that couldn't be discussed in Open Session but I thank you for your cooperation your attendance today and I thank the members for their participation and the meeting of the Senate Judiciary Committee will stand in recess subject to reconvening and sv217 upon arrival thank you

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Published: Tue Jun 13 2023