STATEMENT FOR THE RECORD OF
NSA DIRECTOR LT GEN MICHAEL V. HAYDEN, USAF
HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE
12 April 2000
Thank you for this opportunity to provide an overview of the regulation and oversight of the National Security Agency’s electronic surveillance activities. It is a pleasure to be here today.
Introduction
The National Security Agency (NSA) performs electronic
surveillance to collect foreign intelligence information for the military
and policymakers.
As the
Director of Central Intelligence noted, NSA provides valuable intelligence
to U.S.
government consumers on a wide range of issues of concern to all Americans,
such
as international terrorism, narcotics trafficking, and proliferation of weapons
of
mass destruction. NSA’s electronic surveillance activities are subject
to strict
regulation by statute1 and Executive Order2 due to
the potential intrusiveness and
the implications for the privacy of U.S. persons3 of these activities.
NSA’s
electronic surveillance activities are also subject to oversight from multiple
bodies
within all three branches of the government. These safeguards have ensured
that
NSA is operating within its legal authority.
Background
The Seventies were a watershed for the Intelligence
Community.
Congressional investigating committees, led by Senator Frank Church and
Congressman Otis Pike, found that government agencies, including NSA,
conducted a number of improper intelligence activities directed against U.S.
citizens. The revelations of these committees resulted in new rules for U.S.
intelligence agencies, rules meant to inhibit abuses while preserving our
intelligence capabilities. In other words, a concerted effort was made to
balance the
country’s need for foreign intelligence information with the need
to protect core
individual privacy rights.
A wide-ranging, new intelligence oversight structure was built into U.S. law. A series of laws and Executive Orders established oversight procedures and substantive limitations on intelligence activities. In the aftermath of the Church and Pike committees’ revelations, Congress passed the Foreign Intelligence Surveillance Act (FISA) which created a procedural structure with a special court for considering and approving certain surveillances that occur in the U.S. and thus have the potential to affect rights guaranteed by the Constitution. The House and Senate each established intelligence oversight committees. President Ford issued an Executive Order that established for the first time a formal system of intelligence oversight in the Executive Branch. Oversight mechanisms were established within the Department of Justice and within each intelligence agency. The President also established an independent Intelligence Oversight Board.
The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and - - through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.
Recently, NSA has been the subject of media reports which suggest that NSA collects all electronic communications, spies on U.S. citizens, and provides intelligence information to U.S. companies. There also have been claims that NSA activities are not subject to regulation or oversight. All of these claims are false or misleading. Today, I will describe NSA’s electronic surveillance authority, the framework regulating that authority for the purpose of protecting privacy rights, and the oversight mechanisms in place to monitor NSA’s activities.
NSA’s Electronic Surveillance Authority
NSA’s electronic surveillance authority is
found in Executive Order 12333,
entitled “Intelligence Activities.” Executive Order 12333 authorizes
NSA to collect,
process, and disseminate signals intelligence information for national
foreign
intelligence (and counterintelligence) purposes and in support of U.S.
military
operations.4
NSA is not authorized to collect all electronic communications. NSA is authorized to collect information only for foreign intelligence purposes and to provide it only to authorized government recipients. This means that NSA is not authorized to provide signals intelligence information to private U.S. companies and we do not do so. Legal proscriptions notwithstanding, as a practical matter, it is not technically possible to collect all electronic communications everywhere in the world on an indiscriminate basis.
Regulation of NSA’s Electronic Surveillance
Authority
Electronic surveillance conducted for foreign intelligence purposes is
regulated by statutory restrictions flowing from the Foreign Intelligence
Surveillance Act, and restrictions flowing from Executive Order 12333,
which
manifest themselves in the form of restrictions applicable to all intelligence
collection activities and specific restrictions (Attorney General Procedures)
regulating NSA’s electronic surveillance activities.
Statutory Restriction on Electronic Surveillance in the US. -- Foreign
Intelligence
Surveillance Act (FISA)
Under FISA, NSA may only target communications of
a U.S. person in the
United States if a federal judge finds probable cause to believe that
the U.S. person is
an agent of a foreign power. Probable cause exists when facts and circumstances
within the applicant’s knowledge and of which he/she has reasonably
trustworthy
information are sufficient to warrant a person of reasonable caution to
believe that
the proposed target of the surveillance is an agent of a foreign power.
Under the statute, a judge may determine a U.S. person to be an agent
of a foreign power only if
there is information to support a finding that the individual is a spy,
terrorist,
saboteur, or someone who aids or abets them.
All FISA collection is regulated by special minimization procedures approved by the FISA Court and the Attorney General. Since the enactment of the FISA in 1978, there have been no more than a very few instances of NSA seeking FISA authorization to target a U.S. person in the United States. In those instances there was probable cause to believe that the individuals were involved in terrorism.
Executive Order 12333 - Restrictions Im-Dosed on All Intelligence
Collection Activities
There are certain restrictions imposed by E.O. 12333
upon all intelligence
collection activities engaged in by the Executive Branch agencies. Intelligence
collection must be conducted in a manner “consistent with the Constitution
and
applicable law and respectful of the principles upon which the United States
was
founded.” (Sec. 2.1). These include the Fourth Amendment’s
prohibition against
unreasonable searches and seizures. Intelligence collection must not be
undertaken
to acquire information concerning the domestic activities of U.S. persons.
(Sec. 2.3(b)).
The least intrusive collection techniques feasible must be used in the
United States
or against U.S. persons located abroad. (Sec. 2.4). Finally, agencies in
the Intelligence
Community are prohibited from having other parties engage in activities
forbidden
by the Executive Order on their behalf. (Sec. 2.12) This means that NSA
can not ask
another country to illegally spy on U.S. persons on our behalf, and we
do not.
Executive Order 12333 Procedures - Specific Restrictions
Imposed on NSA’s
Collection
Techniques
In delegating authority to the Director, NSA in
E.O. 12333, the President
recognized that certain intelligence gathering techniques, such as signals
intelligence, are particularly intrusive and must be conducted in a “reasonable” manner
to comport with Fourth Amendment and statutory requirements. The Executive
Order requires, therefore, that certain written procedures be
implemented
regulating such techniques. The procedures are designed to protect constitutional
and other legal rights and limit the use of information collected to lawful
governmental purposes. The Executive Order requires that the head of the
agency
(i.e., for NSA, the Secretary of Defense) and the Attorney General approve
the
procedures.
NSA has such procedures in place. They have
been approved by the Secretary
of Defense and the Attorney General. They are classified and are appended
to DoD
Directive 5240.1-R, the DoD regulation which implements E.O. 12333. Prior
to
implementing or revising these procedures, NSA provides them to the House
and
Senate intelligence committees, to the Assistant to the Secretary of Defense
for
Intelligence Oversight and the Intelligence Oversight Board of the President’s
Foreign Intelligence Advisory Board. The procedures are incorporated into
an NSA
Regulation and the substance of the procedures is promulgated throughout
the
signals intelligence system in a detailed directive, U.S. Signals Intelligence
Directive
18, signed by the Director, NSA. This Directive provides a single document
in which
all the restrictions, whether originating from constitutional, statutory,
executive
order, or regulatory provisions, may be found.
Executive Order 12333 Restrictions on Electronic Surveillance
Outside the US.
Under E.O. 12333 and implementing regulations signed
by the Secretary of
Defense and approved by the Attorney General, NSA must obtain the Attorney
General’s approval before conducting electronic surveillance directed
against a U.S.
person abroad. The Attorney General must have probable cause to believe
that the
person is an agent of a foreign power, either an officer or employee of
a foreign power,
or a spy, terrorist, saboteur, or someone who aides or abets them. Occasionally,
NSA
seeks Attorney General authorization to target a “U.S. person” overseas.
An
example of such a request would be one seeking authorization to target
a terrorist
overseas who is a U.S. permanent resident alien.
Executive Order 12333 Restrictions Relative to Retention and Dissemination
of
Unintentionally Acquired US. Person Information
NSA's collection of foreign intelligence from foreign
individuals and entities is
designed to minimize the incidental, or unintentional, collection of communications
to, from, or about U.S. persons. When NSA does acquire information about
a U.S.
person, NSA's reporting does not disclose that person's identity, and NSA
will only do
so upon a specific request that meets the standard derived from statute5
and
imposed by Executive Order regulation -- that is, the information is necessary
to
understand a particular piece of foreign intelligence or assess its importance.
Specifically, no information, to, from, or about a U.S. person may be retained
unless
the information is necessary to understand a particular piece of foreign
intelligence
or assess its importance. Similarly, no identities of U.S. persons may
be
disseminated (that is, transmitted to another government department or
agency) by
NSA unless doing so is necessary to understand a particular piece of foreign
intelligence or assess its importance. For example, if NSA intercepted
a
communication indicating that a terrorist was about to harm a U.S. person,
the
name of the U.S. person would be retained and disseminated to appropriate
law
enforcement officials.
Oversight of NSA's Electronic Surveillance Activities
Oversight of NSA's activities is conducted by organizations internal to NSA, external to NSA in the Executive Branch, and in the Legislative and Judicial Branches.
Legislative Oversight
As you are fully aware, the intelligence committees
conduct routine oversight
of NSA activities. The committees regularly call for detailed briefings
on NSA's
collection activities and the procedures in place designed to protect
the privacy
rights of U.S. persons, Committee staff routinely visits NSA Headquarters
and field sites as part of its oversight activities. The committees also
receive semi-annual
reports from the Department of Justice concerning NSA's activities under
the
Foreign Intelligence Surveillance Act. As discussed above, NSA has in place
procedures for our FISA and other activities to ensure that the Agency
acts in a
manner that protects the privacy rights of U.S. persons. These procedures,
as well as
any subsequent changes, are reported to the intelligence committees prior
to
implementation. Further, NSA is required to: keep the committees fully
and
currently informed of all intelligence activities, including any significant
anticipated
intelligence activity; furnish any information on intelligence activities
requested by
the committees to carry out their oversight responsibilities; and report
to the
committees any illegal intelligence activity. Recently, this Committee
requested
NSA documents on a number of legal topics related to NSA's collection
activities.
NSA has fully complied with that request and met with Committee staff on
several
occasions.
Section 309 of the Intelligence Authorization Act for FY2000 (Pub. L. No. 106-120) called for me to submit a report to Congress prepared jointly with the Attorney General and the Director of Central Intelligence providing a detailed analysis of the legal standards employed by elements of the Intelligence Community in conducting signals intelligence activities, including electronic surveillance. The report we submitted in February of this year clearly demonstrates that there are legal standards and procedures in place to protect the privacy rights of U.S. persons when NSA and other Intelligence Community entities conduct electronic surveillance.
Judicial Oversight
The Foreign Intelligence Surveillance Court (FISC)
is authorized by the Foreign
Intelligence Surveillance Act to issue court orders for electronic surveillance
directed
against foreign powers or their agents. In reviewing applications for court
orders,
the FISC judges scrutinize the targets, the methods of surveillance, and
the
procedures for handling the information collected.
Executive Branch Oversight
Within the Executive Office of the President, the
Intelligence Oversight Board
(IOB) conducts oversight of intelligence activities. The IOB reports to
the President
and the Attorney General on any intelligence activities the IOB believes
may be
unlawful. The IOB also reviews agency Inspector General and General Counsel
practices and procedures for discovering and reporting intelligence activities
that
may be unlawful, as well as conducts any investigations deemed necessary
to carry
out their functions.
In the Department of Justice, the Office of Intelligence
Policy and Review
(OIP&R) reviews compliance with the court-ordered minimization procedures
designed to protect the privacy rights of U.S. persons. This office also
files semi-annual reports with Congress on electronic surveillance conducted
under FISA and
is intimately involved with NSA's FISA applications. The Office of Legal
Counsel at
DoJ as well as OIP&R have been involved in setting the legal standards
under which
NSA's signals intelligence activities are conducted to ensure that these
activities
strike an appropriate balance between the country's intelligence needs
and
individual privacy rights.
In the Department of Defense, the Assistant to the
Secretary of Defense
(Intelligence Oversight) and the Office of General Counsel are engaged
in
intelligence oversight of NSA. Within NSA, the Operations Directorate's
Center for
Oversight and Compliance, the Inspector General, the General Counsel, and
NSA's
Intelligence Oversight Board also conduct oversight of NSA activities.
The NSA
Office of General Counsel conducts extensive privacy protection and intelligence
oversight training for all Agency employees who are involved in collection
that
implicates Fourth Amendment privacy rights. NSA also enforces a strict
set of audit
procedures to ensure compliance with the privacy rules.
Conclusion
In performing our mission, NSA constantly deals with
information that must
remain confidential so that we can continue to collect foreign intelligence
information on various subjects that are of vital interest to the nation.
Intelligence
functions are of necessity conducted in secret, yet the principles of our
democracy
require an informed populace and public debate on national issues. The
American
people must be confident that the power they have entrusted to us is not
being, and
will not be, abused. These opposing principles--secrecy on one hand, and
open
debate on the other--can be reconciled successfully through rigorous oversight.
The
current oversight framework reconciles these principles. It serves as a
needed check
on what otherwise has the potential to be an intrusive system. The regulatory
and
oversight structure, in place now for nearly a quarter of a century, has
ensured that
the imperatives of national security are balanced with democratic values.
Mr. Chairman, this is a complex and difficult issue,
one that involves an
intricate mix of technical and legal nuance. In the end, however, the concerns
expressed about NSA’s capabilities strike at very basic desires on
the part of our
citizens to be secure in their homes, in their persons, and in their communications.
My appearance here today is as the Director of NSA. But I’m also here
as a citizen
who believes that the careful and continuing oversight of NSA -- at many
levels,
internal and external -- represents a commitment to striking a balance
between the
government’s need for information against the privacy rights of U.S.
persons that my
fellow citizens and their elected representatives can endorse. I can assure
you, Mr.
Chairman, and all our citizens, that I consider the maintenance of that
balance one
of my highest priorities, as do the other men and women of NSA.
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1. The Foreign Intelligence Surveillance Act. SO U.S.C.$ I80 I et scq.
2. Exec. Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. S; 401 note.
3. “U.S. persons” i s a term which includes citizens, permanent resident aliens, groups substantially composed of either or both of thesc categories of individuals, and corporations incorporated in the United States. See 50 U.S.C. S; 1801(i) and E.O. 12331, 5 3.4 (i).
4. See Id. at 8 I . 12(b)(.?), (4), (S), (6) and (7). Signals intelligence is comprised of communications intelligence and electronics intelligence. Communications intelligence consists of foreign com munications passed by radio, wire, or other electromagnetic means and electronics intelligence consists of foreign electromagnetic radiations such as emissions from a radar system. National Security Council Intclligence Dircctive 6. “Signals Intelligcnce.”
5 . See 50 U.S.C. Q 1801(h).