UNITED STATES FOREIGN INTELLIGENCE COURT OF REVIEW
Hearing on Docket No. 02-001
September 9, 2002
9:00 a.m.

PRESIDING JUDGES:

APPEARANCES:

Computer-Aided Transcription of Stenographic Notes

Pages 1-104 

						   
[Page 3]

1                       P R O C E E D I N G S 

2            JUDGE GUY. Good morning, everyone, and welcome to 

3  the first ever meeting of the Foreign Intelligence 

4  Surveillance Court of Review. Unlike a normal appellate 

5  procedure where we keep people to rigid time limits and 

6  whatnot, we're prepared to spend as much time today as is 

7  necessary for you to fully develop the presentation that you 

8  want to make to us and for us to ask the questions that we 

9  need to ask of you. So within those limitations, I think it 

10   might be helpful to us if each of you would identify 

11   yourselves and then we could proceed. 

12             SOLICITOR GENERAL OLSON: Shall I start with me? 

13             JUDGE GUY: I think so. 

14             SOLICITOR GENERAL OLSON: Theodore Olson. Very 

15   nice to have you here.

16             MR. KRIS: I'm David Kris from the Office of the 

17   Deputy Attorney General. 

18             MR. BAKER: Jim Baker from the office of 

19   Intelligence Policy and Review. 

20             MS. SKELLY-NOLEN: Peggy Skelly-Nolen from the 

21   Office of Intelligence Policy and Review. 

22             MR. THOMPSON: I'm Larry Thompson. I'm the Deputy 

23   Attorney General. 

24             MR. DAVID ADDINGTON: I'm David Addington. Counsel 

25   to the Vice President. 


[Page 4]

1            MR. YOO: John Yoo from the Office of Legal 

2 Counsel. 

3            MR. MARCUS: Jonathan Marcus from the Appellate 

4 Section, Criminal Division. 

5            MR. GEISE: Jack Geise, Office of Enforcement 

6 Operations, Criminal Division. 

7            MR. BOWMAN: Spike  Bowman, Deputy General Counsel. 

8            MR. FELDMAN: James Feldman from the Office of the 

9 Solicitor  General. 

10             MR. DREEBEN: Michael Dreeben, Deputy Solicitor 

11  General. 

12             JUDGE GUY: Thank you very much. Mr. Olson, are 

13  you going to be the lead speaker for this group? 

14             SOLICITOR GENERAL OLSON: I am, Your Honor. Thank 

15  you very much. We have the other people here in this room 

16  because there are questions that the Court may have that I 

17  may not be able to answer, or areas in which additional 

18  details or information concerning the procedures that the 

19  Government operates under with respect to FISA may be more 

20  fully explained by people who have actually done and been in 

21  the process for a period of time. We're happy to proceed 

22  under whatever procedure you want but it's certainly fine 

23  with us if the members of the Court want to ask us any one of 

24  us questions with respect to how this works. We want to make 

25  sure that we address every part of it. 


[Page 5]

1            I have not prepared anything extensive to say at 

2 the beginning because I understand the Court is familiar with 

3 what the issues are and has spent time with the briefs and 

4 the statutes and so forth. I will say this, we're here today 

5 because the Foreign Intelligence Surveillance Court's May 

6 17th Order as subsequently incorporated into and implemented 

7 in connection with its July 19th, 2002 decision denying a 

8 specific FISA application in Case Number 02-662 has 

9 perpetuated a serious and increasingly destructive barrier 

10  which has hamstrung the President and his subordinates in 

11  utilizing the Foreign Intelligence Surveillance Act to 

12  accomplish the vital and central purpose for which it was 

13  created; that is to say, the protection of the United States 

14  and its citizens from attack and from international 

15  terrorism. 

16            Unfortunately and sadly, two days from now the 

17  entire nation will pause to reflect on how bad things can be 

18  if our Government is not prepared with every lawful tool 

19  available to protect our country and our people from the 

20  immeasurable toll that international terrorism can inflict, 

21  and to remember the 3000 lives that were taken from us that 

22  day because the resources that we have been given to protect 

23  us from such acts either did not work or were not being used 

24  effectively. 

25            To prevent this sort of thing from happening again, 


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1 which is why FISA was enacted in the first place, our 

2 intelligence agencies and law enforcement personnel, the 

3 President's principal agencies in the war against terrorism, 

4 must be able to work together efficiently and effectively and 

5 cooperatively. Sadly, that is not the condition in which 

6 they operate today. 

7           And the Foreign Intelligence Surveillance Court's 

8 Order of May 17th is the most formidable, the most 

9 inexplicable and the most easily removable obstacle to 

10  achieving the goal for effective and efficient gathering of 

11  intelligence to protect the people of this country and this 

12  country itself from international terrorism. 

13            The Foreign Intelligence Surveillance Act was 

14  enacted for the central purpose of protecting against attacks 

15  from foreign powers and terrorism. Its central purpose is to 

16  enable the President to acquire foreign intelligence 

17  information. It defines in the first section of the Act 

18  itself foreign intelligence information and the terms of that 

19  simple straightforward goal in language which is equally 

20  simple, information from foreign agents or agents of foreign 

21  powers which is necessary, and I'm speaking now in terms of 

22  U.S. persons as opposed to foreign Governments themselves, 

23  which is necessary to the ability of the United States to 

24  protect against attack, hostile acts, terrorism from agents 

25  of foreign powers. 


[Page 7]

1            The definition of foreign intelligence right there 

2  in Section 1801 of the Act is defined in terms of getting 

3  information necessary to protect against, and I'll speak in 

4  terms of international terrorism, but I mean also those other 

5  things that are specified in the Act. 

6            The Act does not purport or attempt in any way to 

7  constrain the methods by which the Executive will then use 

8  that information to protect the citizens of this country and 

9  the nation itself. It doesn't categorize different types of 

10   uses. It says that FISA may be used to obtain information 

11   which may be necessary to protect the people, but it doesn't 

12   say or describe or limit the circumstances under which that 

13   information will be used by the President or his subordinates 

14   to accomplish those statutory objectives which are also 

15   fundamental objectives for the President and his subordinates 

16   under the Constitution, the protection of this country, its 

17   sovereignty, its people from foreign attack, protect its 

18   borders and faithfully to execute the laws. Those are all 

19   part of the President's central mission. 

20            FISA was enacted for the purpose of equipping the 

21   President in a lawful way to use lawful means to accomplish 

22   those constitutional objectives. 

23            There are many many ways in which the information 

24   that may be gathered under FISA may be used. The President 

25   may use that, and his subordinates, when I refer to the 


[Page 8]

1  President I'm referring to the President and his subordinates 

2  in the Justice Department or in the diplomatic community or 

3  in the so-called intelligence community, they're all working 

4  for the President to fulfill the President's objectives. 

5            The President may use that information in 

6  connection with communications with foreign Governments, to 

7  elicit cooperation from other countries, to prevent people 

8  who may be terrorists from moving place to place. The 

9  President may use that information to install greater 

10   security, to improve the nation's defenses, to put law 

11   enforcement people in places where they may interdict someone 

12   about to commit a crime. That information may be used to put 

13   more guards in places to make them safer, to erect barriers 

14   to protect public buildings, to put people in airports to 

15   prevent airplanes from being hijacked. That information may 

16   be used to disseminate false or fictitious information to 

17   people who would do harm to this country. Misinformation. 

18   It may be used to freeze financial resources under the laws 

19   of the United States. It may be used to provide alerts at 

20   the borders, warnings to the citizens, and it may be used in 

21   the law enforcement realm to take potential terrorists or 

22   prevent terrorists from actually acting, take them off the 

23   streets. That is to say, the law enforcement or prosecution 

24   function. But when the information is sought the President 

25   doesn't need to decide and shouldn't need to decide how that 


[Page 9] 

1 information will be used. It may be used in one way, in 

2  another way or in a multiple or different ways, depending 

3  upon the circumstances at the time the President chooses to 

4  use it. 

5            So the applications that are required under FISA 

6  require the President and his subordinates to satisfy the 

7  Foreign Intelligence Surveillance Court that indeed foreign 

8  intelligence is being sought and the manner in which it's 

9  being sought fits the description of FISA, but doesn't 

10  require and should not require a description of how it's 

11  going to be used, or put limitations on how it's going to be 

12  used. 

13            To use the words of Senator Leahy in connection 

14  with the amendment to the Foreign Intelligence Surveillance 

15  Act, this information, once acquired, should be put to any 

16  lawful use necessary by the President to accomplish the 

17  objectives of FISA. 

18            Now, it is clear and it has been clear from the 

19  outset that the Foreign Intelligence Surveillance Act 

20  contemplated law enforcement and criminal prosecution as one 

21  of the things that the President might do with respect to the 

22  information acquired pursuant to FISA. The very definition 

23  of international terrorism in the statute refers to the 

24  criminal laws of the United States; as do other provisions in 

25  the statute, and the history of FISA, when it was enacted in 


[Page 10]

1 1978. There are many many references to the possibility of 

2  using law enforcement's criminal prosecution function to 

3  accomplish the President's objectives. 

4            Now, it may well be that in 1978 and indeed today, 

5  most of the uses to which this information would be put won't 

6  be -- won't involve criminal law enforcement or prosecutors 

7  in the process. That's because there are so many different 

8  types of information that will be acquired. Much of the 

9  foreign intelligence information may have to do with 

10   espionage and other activities that don't have anything to do 

11   or won't necessarily have anything to do with prosecution in 

12   many cases. And I should say before I go on that FISA 

13   provides that, before any information may be used with 

14   respect to a prosecution, the Attorney General, a precaution 

15   must be attached to the information that if it's going to be 

16   used by law enforcement officials in a criminal prosecution 

17   itself the Attorney General has to approve it. 

18            There are many reasons for that. One of which is 

19   to make sure that the implementation and operation of the 

20   statute is by the highest level of officials of the Executive 

21   Branch. That is to say, accountability. 

22            Another part of that is centralizing the 

23   responsibility so that decisions can be made that make the 

24   best possible sense with respect to the goals of the United 

25   States and the achievement of those goals. But finally it is 


[Page 11]

1 also the case that that is a necessary precaution to make 

2 sure that if a prosecution is going to be implemented, the 

3 Attorney General, hopefully with all of the information at 

4 his disposal will decide, yes, it makes sense to prosecute 

5 that particular individual. 

6          Even if an individual is prosecutable, even if the 

7 Attorney General or law enforcement officials or prosecutors 

8 may be convinced that a person can be taken off the street as 

9 a result of a prosecution and put in jail someplace as a 

10  result of a conviction, that may still not be the best answer 

11  to the global problem of terrorism. That individual might be 

12  turned into an agent of the United States Government. That 

13  individual may be surveilled so that he may lead them to 

14  other contacts or other agents. 

15            So the decision with respect to a prosecution is 

16  something that is part of the arsenal, so to speak, but is 

17  not one that is always used or invariably used or necessarily 

18  used to protect people of the United States from terrorism. 

19  But it is one important tool because we know from events that 

20  have occurred in the past, that disrupting a cell of 

21  terrorists or disrupting a potential conspiracy by taking 

22  people off the street, certain people off the street or some 

23  people off the street, taking them into custody, may 

24  interrupt or interfere with the contemplated act, thus 

25  sparing the nation-devastating consequences. 


[Page 12]

1            Now, what has happened since FISA was enacted as 

2  the brief I think describes in detail, is that over the 

3  period of time from 1978 up to the present period of time 

4  there developed as a result, and it's difficult to say 

5  exactly why it happened, I spent some time studying this and 

6  there could be a multitude of reasons like there always is in 

7  something having to do with Government, there are lots of 

8  things that happen, a course of conduct or a way of doing 

9  things that is set in motion and it becomes perpetuated, but 

10   at some point a dichotomy was developed and I say it's a 

11   false dichotomy, between the notion of foreign intelligence 

12   and law enforcement purposes. And the reason I spent so much 

13   time at the beginning about the purposes of protecting is 

14   because that's the purpose for FISA itself, it doesn't -- may 

15   include law enforcement and it may include other things; the 

16   reason I spent so much time with that is that dichotomy 

17   developed that somehow gave birth to the notion that if 

18   information is going to be used by law enforcement officials 

19   for prosecution purposes, it somehow is not what FISA is all 

20   about. 

21            Now, there are several things wrong with that, I 

22   submit. In the first place it's very difficult for me to 

23   describe who is a law enforcement official and who is 

24   something else in our Government. Yes, it's true that some 

25   people might sit in a room and simply collect information. 


[Page 13]

1 other people process that information in various different 

2  ways and use it. Other people go to Court and use grand 

3  juries or the other tools that are available to prosecutors 

4  to collect information, to put pieces together. Other people 

5  go into Court and actually try cases before Judges in an 

6  effort to achieve convictions. But law enforcement is the 

7  function of the President to take care that the laws are 

8  faithfully executed. That may include gathering information, 

9  that may include giving various different instructions, that 

10   may include, but is not limited to, prosecution. 

11             JUDGE GUY: Isn't it clear that the Justice -- 

12             JUDGE SILBERMAN: I would like to ask exactly what   
       
13 happened when? Maybe going back to Assistant Attorney 

14 General in past administrations, but at what point did this 

15   bifurcation, this false dichotomy that you described develop? 

16             SOLICITOR GENERAL OLSON: Well, as I said, it's not 

17   clear to me exactly, and I think that in the course of 

18   history -- there's not a lot of written record or yes, 

19   there's a decision here, it seems to me that the case that we 

20   cited in the briefs which I have trouble pronouncing, from 

21   the Fourth Circuit, Truong, T-R-U-0-N-G, I know there's two 

22   other names, it's a 1980 decision of the United States Court 

23   of Appeals for the Fourth Circuit, adopted that dichotomy 

24   with respect to the use, warrantless use, warrantless 

25   collection of intelligence information. 


[Page 14]
 
1            It's also true, Judge Silberman, that the United 

2  States Supreme Court and other Courts both earlier than that 

3  and subsequent to that, talk in terms of purposes with 

4  respect to the collection and use of information. But it 

5  is -- does seem to be that that decision, although it did not 

6  involve FISA and it did not involve the application of FISA, 

7  used -- because it came after FISA and because it used some 

8  of the terms of FISA, became somewhat accepted, yes, within 

9  the Judicial Branch but also within the Executive Branch, we 

10   obviously acknowledged that, as somehow providing a basis for 

11   this dichotomy. 

12             Part of the basis for that dichotomy, and it is 

13   contained in the Supreme Court's decisions and decisions of 

14   other Courts, is that when one is gathering information for 

15   the protection of the country one is less concerned, I guess, 

16   and one might say this up to a point with the civil 

17   libertarian implications of that Act. 

18             If there's a high level of threat, that is to say, 

19   terrorism or foreign attack, it's one thing for the Courts to 

20   accept that that information is being collected so that the 

21   President can do lawful things available to him. It's 

22   another -- it may be another way that information is used in 

23   a courtroom to take someone off the street. And so the 

24   Courts are properly sensitive to that. 

25            JUDGE SILBERMAN: Which Supreme Court cases are you 


[Page 15]
1  referring to? 

2            SOLICITOR GENERAL OLSON: Well, we're talking -- 

3  I'm talking part of the Supreme Court case that in the sense 

4  led to FISA, what we call the Keith case, but also recent 

5  Supreme Court decisions involving -- recent Supreme Court 

6  decisions involving use of drug-sniffing dogs by the City of 

7  Indianapolis, warrantless drug testing of hospital patients 

8  in the city of Charlotte in the Ferguson case, and there are 

9  several other cases that are antecedent to that in analyzing 

10   the use of information, mostly warrantless information, with 

11   respect to accomplishing some objectives, and the Court seems 

12   to be struggling with but not quite articulating completely, 

13   something along the lines of this dichotomy. 

14             If it is necessary to keep drunks off the street as 

15   opposed to arrest people, the Supreme Court feels more 

16   comfortable with it. If it is necessary to prevent students 

17   in high schools from engaging in extracurricular activities 

18   or athletic activities from injuring themselves or 

19   preventing -- presenting a danger to the school community, 

20   that may be one thing, but if it's going to be used for 

21   prosecutorial purposes, it may be another thing. 

22            Now, I submit, however, both in the context of FISA 

23   and in the real world it's not a terribly usable dichotomy 

24   when we're talking about -- especially when we're talking 

25   about the collection of information that may be used and it 


[Page 16]

1  may be used in a way subject to the approval of the Attorney 

2  General and subject to the review of an Article III Court, if 

3  it is actually going to be used in connection with a 

4  prosecution, a suppression motion and review of, subsequent 

5  review by an Article III Court, but it seems clear to me 

6  that, and we are talking, if I can say tangentially we are 

7  talking in an area in which the Supreme Court recognized in 

8  the Steel Seizure case where you have a coalescence of the 

9  Executive Branch and the Legislative Branch agreeing that 

10   this is authority that the Executive needs, and we're also in 

11   an area where the responsibility of the President is at its 

12   zenith, that is, to protect our citizens and our country from 

13   attack. And as we've seen, devastating attack. 

14            So we're talking in an area where the President's 

15   responsibility is at its greatest, the damage that can be 

16   done if the President is not able to act is at its greatest, 

17   and where both the Legislature -- and where under certain 

18   circumstances I'm sure the Courts would uphold the action by 

19   the Executive without warrant, but here in this situation to 

20   add additional level of protection, also, I submit, to 

21   regularize the process, to make it both transparent and to 

22   involve the judiciary at an early level so that there are 

23   certain regular procedures and I think perhaps to help the 

24   Executive to say, okay, here's what we're going to do, here's 

25   how we're going to carry this off. 


[Page 17]

1            Now, to continue with my answer to your question, 

2  Judge Silberman, yes, the Executive Branch when the FISA 

3  Court started implementing that dichotomy by identifying 

4  participation by law enforcement officials, and again I use 

5  that term very loosely because I'm not sure who that is, in 

6  the counter-intelligence section of the FBI, for example, 

7  people are both collecting information and acting to utilize 

8  it. So we can't make -- there's not -- as you know, there's 

9  not these compartments that are recognized, nor should they 

10   be recognized, that people are one thing or the other. 

11   They're all subordinates of the President acting to fulfill 

12   his various constitutional responsibilities which of course 

13   include law enforcement, which includes the question of 

14   information. 

15             JUDGE SILBERMAN: For many years I've had the 

16   impression that if a U.S. Attorney or his Assistants were 

17   involved in what they thought of as a potential criminal 

18   investigation rather than national security -- 

19             SOLICITOR GENERAL OLSON: Yes, and it's quite 

20   devastating for the prosecutors who are officers of the 

21.  United States, who take the oath to defend and protect and 

22   honor the laws of the United States, are regularly before 

23   Judges who understand probably more than if not much as 

24   anybody the limitations, constitutional limitations on the 

25   powers of the United States, that those individuals should 


[Page 18]

1 somehow be thought of as typhoid Marys in connection with the 

2 collection of information necessary to protect the United 

3  States. 

4            JUDGE LEAVY: I understand it was early on that the 

5  dichotomy that you speak of having been institutionalized was 

6  arrived at. Was that right off the bat? 

7            SOLICITOR GENERAL OLSON: I have not been able to 

8  assemble all the information necessary to answer that 

9  question as well I would like to answer it for you. We 

10   can -- in connection with preparation for this argument I 

11   tried to collect information about. Going back historically, 

12   not all of it is written, if you you'd like we can furnish a 

13   supplemental analysis of it. It reached its zenith in July 

14   of 1995 when Attorney General Reno formalized that so-called 

15   dichotomy and institutionalized in a very severe way the --

16   this wall, the FISA Court refers to it as a wall between law 

17   enforcement and foreign intelligence. And even uses words 

18   that suggest that the conduct engaged in by people trying to 

19   do this thing for the United States cannot either be actually 

20   or even perceived as controlling the acquisition of 

21   information by people on the prosecutorial side of the house. 

22            Now, this is, it seems to me on its face, 

23   unworkable, a recipe for disaster, inconsistent with the 

24   purpose of the FISA. 

25            JUDGE LEAVY: So I take it then that the Court 


[Page 19]

1 functioned and the Act was implemented for a number of years 

2  before anything was established formally. 

3            SOLICITOR-GENERAL OLSON: Yes, that's my 

4  understanding. 

5            JUDGE LEAVY: For what, almost ten years? 

6            SOLICITOR GENERAL OLSON: Well, it would be 17 

7  years or so. Of course there is the start-up time for FISA 

8  and there are Court decisions that sort of recognize this, 

9  but it becomes officially formalized as Department of Justice 

10   policy signed by the Attorney General in 1995. 

11             JUDGE LEAVY: Now, I want help. I know what you're 

12   here for is as an advocate and I appreciate that and I 

13   appreciate the brief, but I'm going to share with you some of 

14   the concerns I have with the hope that you'll kind of help me 

15   out or somebody here will. 

16             First of all, it sounds to me as if the Government 

17   is talking about issues of purpose, repeatedly, and the 

18   effect of the new Act as it deals with the purpose of the 

19   application. And that the Court decided this all on the 

20   proposition of minimization. And it seems to be a total 

21   disconnect between what the Government is talking about by 

22   way of what the new Act does and what the Court is talking 

23   about by way of need for minimization. And I want to pose a 

24   question with respect to minimization that probably is along 

25   the lines of what you believe, but I want some assurances 


[Page 20]

1 that you think it's accurate. Now, I understand from the 

2  legislative history that even Congress feels that the 

3  substance of this Act is in the definitions. 

4            SOLICITOR GENERAL OLSON: Yes. 

5            JUDGE LEAVY: Now, I don't know whether that's a 

6  fair view of it or not, but these definitions are rather 

7  precise and sometimes hard to understand, but, anyway, in 

8  minimization procedures under (h) -- under 1801(h), and then 

9  one, the first reference is "Specific procedures which shall 

10   be adopted by the Attorney General." Now, that almost sounds 

11   like it's self-executed, whatever the Attorney General 

12   adopts, that's it. By definition. The only thing that 

13   tempers that and would make it subject to some sort of review 

14   is the use of reasonably designed in light of purpose, the 

15   purpose, and techniques, to narrow the accumulation and 

16   narrow the storage and narrow the publication or 

17   dissemination. Now, what the Court is doing then is saying, 

18   as I understand it, that minimization means maintaining these 

19   compartments within the departments of Government. Am I, in 

20   your view, focused? 

21            SOLICITOR GENERAL OLSON: I believe that that is 

22   correct, that that's what the Foreign Intelligence 

23   Surveillance Court was thinking when it issued its May 17th 

24   opinion. I can't -- I have not for the life of me been able 

25   to extract that from the statute. The provision that you're 


[Page 21]

1 referring to goes on to say -- we also did another paper 

2 actually in preparation of this in case the Court would want 

3 that to compare the minimization procedures and other 

4 procedures under Title III with the procedures and operation 

5 of. I gather the Court would like us to submit that. 

6           JUDGE SILBERMAN: The Chief Judge. 

7           JUDGE GUY: I think that is something we would be 

8 very interested in receiving and we may want to talk about it 

9 some today also during this proceeding. 

10            SOLICITOR GENERAL OLSON: We will finish this, but 

11  I only mentioned that sort of in passing. The minimization 

12 procedures in my judgment are designed to assure the Court 

13 that the statute requires the Attorney General, in my 

14 judgment, to make sure that information is -- once it's 

15  collected, is not misused. 

16            When you, as you know, intercept communications 

17  they may include communications with people who have nothing 

18  to do with the purpose of the accomplishment of the statute. 

19  It may be -- and the Government and the Courts and the 

20  Congress and the Executive for that matter, too have always 

21  been concerned about abuse of information, storage of files 

22  about people. And that sort of thing. 

23            In my judgment the minimization procedures are 

24  intended to accomplish that purpose and the Attorney General 

25  is to make sure that record retention, record acquisition, 


[Page 22] 

1 record use is not -- does not go beyond the scope of the 

2  statute. 

3            Now, how the Court got from that point to imposing 

4  limitations on communications between Assistants to the 

5  President with respect to the implementation of the statute, 

6  I don't know. And the most important provision in that 

7  (h)(1) to which you were referring is the last clause that 

8  says, "Consistent with the need of the United States to 

9  obtain, produce and disseminate foreign intelligence 

10   information." Thus by which Congress was saying the number 

11   one goal is right here, it says it over and over again in the 

12   statute, but the acquisition of information necessary to 

13   protect the United States and citizens from attack, develop 

14   minimization procedures but keep that in mind. 

15             JUDGE LEAVY: I take it that it's your view that 

16   the Court in its opinion flipped that over and said, in 

17   effect, that all of the dissemination -- for example, the 

l8   dissemination -- well, that the results of surveillance could 

19   not be disseminated unless it was consistent with foreign 

20   intelligence. And I have a reading of that that says there 

21   would be no dissemination of it, that is, to law enforcement 

22   if it diminished its value as foreign intelligence. Now, I 

23   don't know whether I've put that very clearly or not but the 

24   Court focused on this, too. 

25             SOLICITOR GENERAL OLSON: The Court did, but I 


[Page 23] 

1 submit that that is not A), in my judgment, a rational 

2  reading of the minimization procedures. Once one takes -- as 

3  you say, it's all in the definitions and the definition is 

4  information necessary to protect. Now, we know now sadly 

5  that vhen you build this wall between the people that have 

6  information with respect to this terrorist group and -- the 

7  phrase that's become so popular now in discussing the events 

8  of September 11th and what went wrong, and I'm not saying 

9  that anything here could have changed the situation, but the 

10   one guarantee that if you keep the people that you're asking 

11   to protect you from those kinds of things and then 

12   compartmentalize their functions in such a way that they 

13   cannot communicate with one another, the people that are 

14   going to implement the procedures by which you're protected, 

15   that people over here who might have information about 

16   terrorists and people over here who might have information 

17   about these same terrorists or connections between or bank 

18   accounts that are being used or means by which they get into 

19   this country cannot speak to one another, that is a guarantee 

20   that you will have one or two hands tied behind your back 

21   with respect to accomplishing these things. And the phrase I 

22   was about to say that's been used so much in public and in 

23   debates about this is connecting the dots. Well, of course 

24   it's all connecting the dots because foreign intelligence is 

25   zillions of dots out there, pieces of information. If you 


[Page 24]

1  can 

2  connect -- the purpose of this statute and the purpose of the 

3  community that we ask to protect us is to put that universe 

4  of pieces of information together so that connected pieces 

5  make a picture that you can understand and maybe do something 

6  with. And we've prevented ourselves from doing that and I 

7  don't -- I think I wanted to stay with your question is that 

8  I don't think that there is anything implicit in any way in 

9  the statute, including minimization procedures, that would 

10  suggest that those minimization procedures are intended to 

11   accomplish this. 

12             One of the bases upon which I rely, I think I rely 

13   on the statute itself and its history and all of these other 

14   things and the common sense meaning of these words for that 

15   conclusion but also paragraph three of (h) speaks in terms of 

16   procedures, again minimization procedures that allow for the 

17   retention and dissemination of information that is evidence 

18   of a crime which has been or is about to be committed and 

19   that is to be retained and disseminated for law enforcement 

20   purposes. 

21            JUDGE SILBERMAN: Do you think that refers to 

22   non-foreign intelligence crimes? 

23            SOLICITOR GENERAL OLSON: Yes, and the 1978 House 

24   report which we've cited -- may I ask for the number of the 

25   report? 1283, House Report 1283, and I'm referring to page 


[Page 25]

1  62. 

2            JUDGE LEAVY: Now, that's on which Act? 

3            SOLICITOR GENERAL OLSON: That's FISA itself. 

4            JUDGE LEAVY: The original. 

5            SOLICITOR GENERAL OLSON: Yes. 

6            JUDGE LEAVY: Okay. 

7            SOLICITOR GENERAL OLSON: That refers to (h)(3) and 

8 why (h)(3) is in there. And there's a paragraph in the 

9 middle of the page of that report which I've marked up for my 

10  own purposes -- it's page 62. It's actually cited on page 

11  ten in a footnote, I think it's page ten of the FISA Court 

12  opinion itself as somehow supportive. It's either page ten 

13  or footnote ten in the FISA Court opinion itself. So I went 

14  to that provision to see what possible support the reference 

15  to that provision and that portion of the legislative history 

16  could have to what the Court was doing. And it seems to me, 

17  if anything, it illustrates the position that we're taking 

18  about here. That, Judge Silberman, makes it clear that to 

19  the extent a FISA-approved surveillance uncovers information 

20  that's totally unrelated -- let's say, that a person who is 

21  under surveillance has also engaged in some illegal conduct, 

22  cheating --

23             JUDGE LEAVY: Income tax. 

24             SOLICITOR GENERAL OLSON: Income tax. What we keep 

25 going back to is practically all of this information might in 


[Page 26] 

1 some ways relate to the planning of a terrorist act or 

2  facilitation of it. 

3             JUDGE SILBERMAN: Try rape. That's unlikely to 

4  have a foreign intelligence component. 

5            SOLICITOR GENERAL OLSON: It's unlikely, but you 

6  could go to that individual and say we've got this 

7  information and we're prosecuting and you might be able to 

8  help us. I don't want to foreclose that. 

9            JUDGE SILBERMAN: It's a stretch. 

10             SOLICITOR GENERAL OLSON: It is a stretch but it's 

11   not impossible either. And again, that's what we believe 

12   that provision is all about and allows that information to be 

13   retained again and turned over to law enforcement officials 

14   so that law enforcement officials might prosecute that 

15   individual. But in the course of explaining that, the House 

16   Report right in the middle says -- and you have to put this 

17   in context, I'll read this sentence, it says, "Similarly," 

18   referring to information that is not in that category that 

19   Judge Silberman just described, "Much information concerning 

20   international terrorism would likewise constitute evidence of 

21   crimes and also be foreign intelligence information'." So 

22   the legislature, the House Report here is acknowledging and 

23   recognizing and specifically articulating that information 

24   that is evidence of crimes relating to terrorism is foreign 

25   intelligence information. That is consistent -- I was going 


[Page 27]

1 to mention a point, I was going to go back to that Fourth 

2  Circuit case but I didn't want to interrupt. 

3            JUDGE LEAVY: Go ahead. 

4            SOLICITOR GENERAL OLSON: Judge Bell, then Attorney 

5  General Bell, testified in connection with that Truong case, 

6  and he said that, and it's cited in the Court opinion itself 

7  and I'm paraphrasing it somewhat, but it's on page 47 of our 

8  brief and note five of 629 F2d at page 916. It says, "Nearly 

9  every one of these counter-intelligence investigations that I 

10   have seen involves crime in an incidental way. You never 

11   know when you might turn up something you might want to 

12   prosecute." And so -- that's all consistent with the 

13   legislative history and the definition of the statutes. 

14   People who are planning to commit terrorism or attacks on 

15   this country are almost invariably going to involve 

16   themselves in the commission of some crime or another. They 

17   may enter the country illegally. They may acquire resources 

18   illegally. They may carry too much currency for a foreign 

19   national. 

20             JUDGE LEAVY: Well, I think that argument is 

21   fortified also by the provision that in the event that an 

22   emergency surveillance is authorized by the Attorney General, 

23   if a crime is determined and it can be reported to law 

24   enforcement, it can only be homicide or a threat -- a threat 

25   to safety, so there is a restriction on the dissemination 


[Page 28]

1 under that section that I don't see in the one with respect 

2   to dissemination of information acquired by Court Order. 

3             SOLICITOR GENERAL OLSON: I haven't focused on 

4   that. 

5             JUDGE GUY. Not to --

6             SOLICITOR GENERAL OLSON: I agree. 

7             JUDGE GUY: Not to change the topic we're 

8   discussing but to approach it from a slightly different 

9   angle, right at the beginning of your presentation you 

10   mentioned that you were here today in effect appealing from a 

11   denial of an application and you devote some time in your 

12   brief to that and those present on the FISA Court might say 

13   that you didn't get a denial of your application, you got a 

14   modification of it. 

15             Speaking only for myself to the degree that that 

16   raises a jurisdictional issue, I'm comfortable with the fact 

17   that you're properly here before us today as a result of that 

18   modification, however it is described. But the question that 

19   I'm leading up to is that for years, 20-some years after the 

20   FISA Court was established the Government operated with that 

21   Court without ever the necessity of an appeal. This is, as I 

22   said at the outset, our first appeal.  So along comes the 

23   Patriot Act which clearly and I think beyond peradventure 

24   expands Government's powers, not contracts it. And here we 

25   have the first appeal. So there's kind of a touch of irony 


[Page 29]

1 in that and that leads to my first question. The FISA Court 

2 in effect modified your, if you will, generic procedures for 

3 minimization. That was one approach. What Judge Baker could 

4 have done in this particular application without the Court 

5 doing that as a unit is simply saying I will only approve 

6 this application if in this particular case you modify your 

7 minimization procedures accordingly. 

8           So I guess my first question is do you challenge 

9 the right of the FISA Court to do anything with minimization 

10  procedures since nobody knows until the investigation 

11  proceeds exactly what you're going to run into. In other 

12  words, is it within the jurisdiction of the FISA Court to 

13  even lay down the perimeters of minimization. 

14            It strikes me it's a little bit like Brady material 

15  in a criminal case. The Court doesn't tell the Government 

16  what they have to do but if the Government doesn't do what 

17  they have to do, they proceed at their peril. And that 

18  traditionally in Title III applications was the way it was. 

19  We always assumed -- as a District Judge I assumed that the 

20  Government knew its minimization responsibilities and it was 

21  at their risk if they didn't proceed in accordance with them. 

22  It seems to me we have a fundamental question, should FISA be 

23  saying anything prospectively before minimization? 

24            SOLICITOR GENERAL OLSON: Well, I thought about 

25  that and I think that the right answer is most of what you've 


[Page 30]

1 said, but I think I have to concede, and I will think about 

2  this some more, but to the extent that FISA itself in 1805 -- 

3  this is the issuance of the Order, 1805(a), necessary 

4  findings, the Court, it seems to me, does have to make a -- 

5  part of (a)(4) of 1805, that the minimization procedures have 

6  to be part of the application, and then the Court has to find 

7  that the proposed minimization procedures might alter the 

8  definition of 1801. 

9            So it seems to me that the Court can say, well, the 

10   minimization procedures that you've set forth in your 

11   application are not sufficient under the definition. But 

12   having said that, when one looks at the definition and 

13   especially that last clause of the definition, and refers to 

14   consistent with the goals of obtaining foreign intelligence 

15   which I say then incorporates the need to protect the United 

16   States, that there's got to be a great deal of deference to 

17   the Attorney General's decision with respect to what must be 

18   kept, maintained and so forth with respect to these 

19   minimization procedures. But at minimum the Court went 

20   vastly beyond that in imposing limitations on how the -- it 

21   isn't just Judge Leavy, it isn't just what they do with the 

22   information, it's how they can collect the information, 

23   because the provision says in the order which was engrafted 

24   and I think had to be engrafted by Judge Baker in a 

25   subsequent application, because that's what the court sitting 


[Page 31]

1 en banc decided was a minimum requirement when it rejected 

2 what the Attorney General said it was going to do, said any 

3  communication, any suggestions, recommendations I think is 

4  the word of the order, with respect to the initiation, 

5  expansion, implementation or whatever, of a FISA application 

6  by a prosecutor is ipso facto controlled and ipso facto 

7  prohibited. 

8            JUDGE SILBERMAN: Excuse me. Perhaps I 

9  misunderstood, but I took that to be exactly Judge Guy's 

10   point. The minimization procedures deal with what you do 

11   with the information as you get it. And maybe it's case 

12   specific rather than how you develop it in the first place. 

13   That's what I thought you were getting at. 

14             JUDGE GUY: Absolutely. 

15             JUDGE SILBERMAN: You're quite right under 1805 

16   that the FISA Court has authority to approve it but you're, I 

17   think, answering yes to his question, it doesn't focus on how 

18   you develop the information, rather what you do with the 

19   information. 

20             SOLICITOR GENERAL OLSON: Well, it does say in 

21   (h)(1), procedures designed -- adopted by the Attorney 

22   General reasonably designed in light of the purpose blah blah 

23   blah, to minimize the acquisition and retention, and so 

24   forth. So it's there, but -- so that's why I sort of wanted 

25   to give a 95 percent yes to that question but then they took 


[Page 32]

1 it just totally to a different level. 

2            JUDGE GUY: But do you view -- isn't it partially 

3 your position that the FISA Court by, in effect, packaging 

4 its opinion in terms of minimization was indirectly 

5 reinserting the primary purpose standard back into the whole 

6 process? 

7           SOLICITOR GENERAL OLSON: Exactly. And they said 

8 so. On page -- the opinion -- I'll pull this out. on page 9 

22 of the FISA Court's opinion, the second full paragraph.  

10  The Court said, "Given our experience in FISA surveillance 

11  and search, we find that those provisions," the Attorney 

12  General's revised procedures which were then before the 

13 Court, "Sections (2)(b) and (3), particularly those which 

14  authorized criminal prosecutors to advise FBI intelligence 

15  officials on the initiation, operation, continuation or 

16  expansion of FISA-intrusive seizures are designed to enhance 

17  the acquisition, retention, dissemination for law enforcement 

18  purposes instead of being consistent with the ability of the 

19  United States to obtain, produce, and so forth, foreign 

20  intelligence information." So the Court actually said that 

21  that's what it was doing and basically said we liked what the 

22  Attorney General did in 1995. Not only do we like it, we're 

23  going to insist that this Attorney General follow those 

24  procedures even if this Attorney General finds that they 

25  don't make sense, even if the statute has been amended to 


[Page 33]

1  make it as Judge -- Chief Judge Guy said, more easy for the 

2  Executive to accomplish his responsibilities. And even for 

3  Congress in adopting 1806(k) specifically said that the 

4  intelligence-gathering people consult with and coordinate 

5  with law enforcement, and that such coordination would not 

6  undermine the certification by the people preparing these 

7  FISA applications, that it was for foreign intelligence 

8  purposes, nor shall it prevent the granting of the order. 

9           What the Court did here on May 17th and then in the 

10  subsequent rejection of the FISA application was ignore, read 

11  1806(k) out of existence and just override all of these other 

12  things. Now, this process he -- we got to this point in 

13  history because of the false start after the Truong case in 

14  19 --

15            JUDGE SILBERMAN: Let me stop you for a moment on 

16  the Truong case because you're absolutely right, that is the 

17  touchstone of the bifurcation that you described and it was 

18  as you correctly pointed out, a case which interestingly 

19  enough came up after FISA but dealt with facts before FISA. 

20  So it was not a FISA interpretation and the Court therefore 

21  doesn't deal with the question of seeking foreign 

22  intelligence information but deals instead with the notion of 

23  foreign intelligence reasons. It doesn't use the term at 

24  all. It has a premise which I wonder whether you are 

25  prepared to disagree with, the premise is that the Executive 


[Page 34] 

1   should be excused from securing a warrant in such a situation 

2   only when the surveillance is conducted primarily for foreign 

3   intelligence. It goes on to explain why and that is, 

4   "Because once surveillance becomes primarily a criminal 

5   investigation, the Courts are entirely competent to make the 

6   usual probable cause determination and because, importantly, 

7   individual privacy interests come to the fore and Government 

8   foreign policy concerns recede when the Government is 

9   primarily attempting to form the basis for a criminal 

10   prosecution." That's the premise. 

11             SOLICITOR GENERAL OLSON: And I douldn't disagree 

12   more and, in fact, what we've been talking about in terms of 

13  the definition by Congress of foreign intelligence 

14   information is inconsistent with that. It's also 

15   inconsistent with the ability of the Executive to use one of 

16   the -- however infrequently used in the foreign intelligence 

17   context -- one of the most potent and effective mechanisms, 

18   that is to say, and law enforcement can mean more than 

19   prosecution. 

20             JUDGE SILBERMAN: But remember, Truong is a 

21   constitutional case. 

22             SOLICITOR GENERAL OLSON: And it's a warrantless. 

23             JUDGE SILBERMAN: Yes. Do you think of FISA as 

24   warrantless or not? 

25             SOLICITOR GENERAL OLSON: No, I don't think of FISA 


[Page 35] 

1 as warrantless but I just simply mention that the Court there 

2 was talking about warrantless searches. 

3             JUDGE SILBERMAN: Well, insofar as the Justice 

4   Department sort of slid in over the years into this 

5   bifurcation, is not part of the reason constitutional 

6   concern? 

7             SOLICITOR GENERAL OLSON: I think that concerns 

8   about the constitutionality of the Government's behavior are, 

9   let's say, part of the atmosphere under which these issues 

10  are being considered. I would say that on the other side, 

11   and I'll come back to, if I can, to part of your question, is 

12   that we have very significant constitutional concerns when an 

13   Article III Court or FISA Court tells the President that it 

14   must have a unit within the Executive Branch through which 

15   all communications between people working for the President 

16   must operate. That they can't talk to one another. That you 

17   have to schedule meetings. 

18             One of the things that I also did, Judge Silberman, 

19   is look at a memorandum by the Assistant Attorney General for 

20   the Criminal Division a few months ago attempting to 

21   implement this wall and providing instructions as to how 

22   every communication must go through the office of 

23   Intelligence Policy and Review before people can talk to one 

24   another. And it is madness. It is like that chart that they 

25   made when it was being proposed that the health care system 


[Page 36]

1  be revamped, where all you have to do is look at it and 

2  realize that can't work. 

3           With respect to the part of your question about the 

4  competence of the judiciary to make these decisions, yes, I 

5  understand and I respect -- 

6           JUDGE SILBERMAN: I'm not raising the question of 

7  whether the FISA Court exceeded Article III limitations by 

8  seeking to administer the Justice Department, which is a 

9  separate question itself which I may very well come back to, 

10   but I'm now focusing on the primary purpose test in Truong. 

11   That is a constitutional opinion, you're quite correct, it's 

12   pre-FISA. We have to explore today how much FISA deviates 

13   from the classic warrantless crime. It certainly deviates in 

14   the particularity aspects and how significant that is 

15   constitutionally. 

16            Incidentally, although your brief is very useful it 

17   doesn't have an awful lot focusing on the constitutionality 

18   of the amendment to the statute which adopted the significant 

19   purpose test. 

20            SOLICITOR GENERAL OLSON: Well, in part I 

21   understand that's true. And we'll be happy to address in 

22   greater detail any aspect of that that the Court is 

23   interested in, but the reason -- 

24            JUDGE SILBERMAN: Don't we have to decide that 

25   incidentally? 


[Page 37]

1            SOLICITOR GENERAL OLSON: The FISA Court 

2  specifically articulated that it wasn't concerned with the 

3  constitutional question. It doesn't get into the 

4  constitutional question. It didn't address the 

5  constitutional question. It didn't think it needed to. I 

6  don't think that that issue is before the Court at this 

7  point, but -- 

8            JUDGE SILBERMAN- Wait a minute. Stop for a 

9  second. Remember this is a strange situation where we don't 

10  have an adversary. If we thought the District Court, the 

11  FISA Court, was in error, even posing through the guise of -- 

12  excuse me, guise is the wrong word, through the procedure 

13  of -- minimization procedures, the primary purpose test, and 

14  if we thought the primary purpose test was not consistent 

15  certainly with the Patriot Act, wouldn't it be necessary for 

16  us to consider the question whether the Patriot Act 

17  amendments were constitutional? 

18            Senator Leahy when he proposed this explained to 

19  the Senate that the Courts were going to have to decide 

20  whether the significant purpose test is constitutional. 

21            SOLICITOR GENERAL OLSON: I understand that if I 

22  were on that side of the table I would feel that it would be 

23  appropriate to consider the constitutionality of what I was 

24  being asked to do. I don't think that it's a close case at 

25  all. Because of the reasons that have been articulated by 


[Page 38]

1 the Supreme Court, for example, in the Keith case. 

2             JUDGE SILBERMAN: Keith has a footnote saying -- 

3   incidentally, you should know that the Chief Judge actually 

4   tried the Keith case as an Assistant U.S. Attorney. 

5             JUDGE GUY: Justice came in and took care of it, 

6   for better or worse. 

7             JUDGE SILBERMAN: Then lost it. 

8             SOLICITOR GENERAL OLSON: That sometimes happens. 

9   But there is a body of law that we're prepared to deal with 

10   in greater detail if it will assist the Court with respect to 

11   the issues that I was addressing before, that the paramount 

12   interest of the Executive in this area because of the degree 

13   of the threat, because of the nature of foreign in -- the 

14   foreign power, the foreign -- the powers of foreign powers, 

15   their ability to work in secret, their ability to frustrate 

16   normal law enforcement mechanisms, the responsibility of the 

17   President to the people, and all of those categories of 

18   reasons which might well justify warrantless activity in this 

19   area but which when combined with Congressional endorsement 

20   of these procedures, and I would say that --. 

21             JUDGE SILBERMAN: Is it your view the Government's 

22   motivation in constitutional terms, not statutory, but in 

23   constitutional terms the Government's motivation, the degree 

24   of interest in the Government seeking criminal prosecution is 

25   wholly irrelevant in constitutional terms? 


[Page 39]
 
1            SOLICITOR GENERAL OLSON: Well, I hate -- whenever 

2  I'm faced with that kind of a question, wholly irrelevant, I 

3  hate to say so because I don't know how we can conceive -- 

4            JUDGE SILBERMAN: Excuse me, Mr. Olson, your brief 

5  actually says that motivation is irrelevant. 

6            SOLICITOR GENERAL OLSON: And I believe that that 

7  is the case. Whether one could come up with a conceivable 

8  concept in which someone is out to get someone, or something 

9  like that, I don't know but I believe that with respect to 

10   FISA the motivation needs to be to collect information to 

11   protect the public and to protect the Republic. That's what 

12   the definition of foreign intelligence is. 

13             JUDGE SILBERMAN: I'm talking constitutional. 

14             SOLICITOR GENERAL OLSON: I understand that and I 

15 agree with what is said in the brief and I can't conceive of 

16 a situation in which, especially in this context --

17             JUDGE SILBERMAN: Suppose you had a case of a 

18   fireman going into a house and finding drugs. As I 

19   understand it, there's nothing to prevent the fireman from 

20   telling the police about the drugs even though the fireman 

21   didn't have a search warrant, assuming the fireman is 

22   proceeding under typical firefighter's modus operandi. But 

23   if the firefighter's motivation was to find the drugs, that 

24   would be unconstitutional, wouldn't it? 

25             SOLICITOR GENERAL OLSON: It may well be. What 


[Page 40]
 
1  we're talking about and what Senator Leahy to whom you 

2  referred, specifically said in addressing this issue or part 

3  of this issue, and this is on page 41 of our brief, and this 

4  is the position that we take here, is that the protection 

5  against these foreign-based threats by any lawful means is 

6  within the scope of the definition of foreign intelligence 

7  information and the use of FISA to gather evidence for the 

8  enforcement of these laws was contemplated by FISA. 

9            JUDGE SILBERMAN: You're responding to my 

10  constitutional questions by coming up with very good answers 

11  from FISA, but I'm raising the question whether I'm inclined 

12  to think it's necessary for us to address the constitutional 

13  arguments. It surely can be argued that the Congressional 

14  adoption of or even the original statute or its adoption of 

15  significant was unconstitutional. And I for one would like a 

16  brief on the constitutionality question. I don't see any way 

17  to avoid grappling with that issue. 

18            SOLICITOR GENERAL OLSON: We have no problem 

19  whatsoever in providing that brief. We would want a few days 

20  to put it together but I think it's entirely legitimate and 

21  of course it's legitimate and it's something that we'd be 

22  happy to address. We think that, and I think to answer here, 

23  that to the extent that a motivation for the gathering of 

24  information is -- to the Executive, the Attorney General, is 

25  contemplated for the use of this information is properly 


[Page 41]

1  acquired under the provision of the statute to prosecute that 

2  person and therefore take that terrorist off the street 

3  because he entered the country illegally, or let's say 

4  individual rather than terrorist, is using funds illegally or 

5  using the funds to blow up a building, to the extent that the 

6  Attorney General ultimately decides I want to use that 

7  information for that purpose because that's the most 

8  effective way and the most effective legitimate way to 

9  protect the public, then having that motive early on isn't a 

10  prohibitive motive and can't be a prohibitive motive and 

11  shouldn't be a prohibitive motive. 

12            JUDGE SILBERMAN.- I understand your argument. I 

13  would like to see it developed in terms of Supreme Court 

14  cases on the Fourth Amendment question. 

is            JUDGE GUY: Certainly we would welcome a brief on 

16  that. I would say this, however, that, and I would ask 

17  anyone present to disabuse me of this notion if I'm wrong on 

18  it, before the Keith case and after the Keith case the power 

19  of the Executive to use procedures outside the Fourth 

20  Amendment for the development of information involving 

21  foreign intelligence was never thought to implicate the 

22  Constitution. And that after the Keith case which sort of 

23  brought to light, to public light, some of the things that 

24  law enforcement was doing, in my view FISA was passed not as 

25  an implementation of the executive powers but as a 


[Page 42] 

1   restriction on the executive powers. And as a result of that 

2   it sort of makes the issue a little different because nobody 

3   ever maintained, that I know of, never successfully 

4   maintained, or there's a Court decision that challenged 

5   successfully the President's right, for example, to do this 

6   kind of warrantless activity in terms of true foreign 

7   intelligence. And the concern that the FISA Court I think is 

8   wrestling with is to keep FISA from swallowing Title III. 

9   That's the concern. And in that regard, and Mr. Kris is 

10   here, in the transcript of the hearing, near the end Judge 

11   Baker in the colloquy of Mr. Kris says, "But in brief and in 

12   summary, you do by these minimization procedures seek to 

13   allow the criminal division to direct, expand and initiate 

14   FISA procedures, FISA operations, right?" And Mr. Kris 

15   responds, "The answer is yes." And although I wasn't present 

16   to see the expression on Judge Baker's face my hunch is that 

17   he thought that that was the smoking gun in terms of your 

18  answer. 

19            Now my question is if the Attorney General sought 

20   to have as his chief implementer of FISA matters as far as 

21   proceeding to go before the FISA Court and whatnot the 

22   Assistant Attorney General in charge of the Criminal 

23   Division, would that violate anything? 

24            SOLICITOR GENERAL OLSON: Well, may I answer that 

25   and then Mr. Kris may want to expand on what he was thinking 


[Page 43] 

1  when he gave that answer, but my answer is that if the 

2  Attorney General decides that the Assistant Attorney General 

3  for the Criminal Division or the Deputy Attorney General or 

4  the General Counsel for the Federal Bureau of Investigation 

5  is the best one to coordinate all of these activities, to 

6  collect this information and determine the best way to use 

7  it, that is constitutional. And that the Courts, with all 

8  due respect, don't have the power or authority or expertise 

9  or constitutional legitimacy in making such decisions. And 

10   to the extent -- I don't think, I do not think that any 

11   decision at the application stage is going to necessarily 

12   result in a prosecution, even if there is someone that we, 

13   the Government, knows has done something, and we'd like to 

14   have, the Government would like to have the information 

15   necessary to implement a prosecution. 

16            At the end of the day the Attorney General, himself 

17   or herself, is going to have to approve that, and it may make 

18   sense at the time that particular trigger is pulled or not, 

19   but to the extent that that information and to the extent 

20   that we're talking about Title III, FISA itself says, 

21   specifically says notwithstanding any other provision of law. 

22   FISA was intended not to replace Title III but to provide the 

23   Executive with authority, aside from and in addition to Title 

24   III. Yes, it may have been to restrict but it was also meant 

25   to authorize. 


[Page 44] 

1            To the extent that Congress was imposing procedural 

2  constraints and a process which Congress at the time thought 

3  was beneficial, yes, there may have been -- there certainly 

4  are certain restrictions that if they -- but it doesn't mean 

5  that the Executive can't proceed, as you suggest, in a 

6  warrantless capacity entirely consistent with the Fourth 

7  Amendment if the exigencies exist to justify that. And it 

8  doesn't mean that an individual who is suggesting a 

9  particular FISA application may be in his or her mind 

10   paramount at the time we've got someone that we can prosecute 

11   and desperately need to do that to stop these terrible events 

12   from happening I don't think constitutionally undermines 

13   FISA, the application or the implementation of the statute. 

14            JUDGE GUY: Doesn't the statement by Judge Baker -- 

15   it at least suggests to me that's a conflating of origin with 

16   purpose. You don't determine purpose by origin. 

17            SOLICITOR GENERAL OLSON: No, I agree with you, and 

18   that is what is the problem fundamentally with the FISA 

19   Court's decision, that that -- there's two things. One, the 

20   purpose, the FISA Court felt if the purpose has to do with 

21   law enforcement it's a bad purpose or possibly potentially 

22   impermissible purpose. And then the next step is that 

23   anybody who has a hat that says prosecutor, plays on the 

24   prosecutors' softball team, is a bad person because that 

25   means that that person will have a bad objective. And that 


[Page 45] 

1 is why this wall, and the Court frankly talks about this wall 

2 as such an insidious thing because prosecutors often make 

3 decisions not to prosecute, prosecutors working with 

4  intelligence people may say, fine, we don't need to prosecute 

5  this person. 

6            But the one way to frustrate the effect is 

7  illustrated in this very application that was before Judge 

8  Baker, there are two efforts going on here. One was a 

9  prosecutorial effort, one was an intelligence-gathering 

10   effort, and somehow the Executive finds himself in the 

11   position that you have to pursue one and abandon the other, 

12   or pursue the other and abandon the other one when the two 

13   should work together. 

14            And the reason why we submitted last week the Los 

15   Alamos report, and I hope we got it to you, is that these 

16   pages of that report illustrate how this process broke down. 

17   It is a disaster, I submit, that these people attending -- 

18   intending to accomplish an objective of protecting our lives 

19   as required under the Constitution and the statute can't talk 

20   to one another, and this communication setup that we have is 

21   utterly dysfunctional. 

22            JUDGE SILBERMAN: 1804 says it requires the 

23   identity of the federal officer making the application. And 

24   that that person -- and also the approval of the Attorney 

25   General. At what level is the identity of the federal 


[Page 46]

1  officer making that application, how high is that? 

2            SOLICITOR GENERAL OLSON: I'd like Mr. Kris and Mr. 

3  Baker to help me answer that. 

4            JUDGE SILBERMAN: I'll tell you the reason I ask 

5  this question, it follows on Judge Guy's question, because if 

6  anybody's purpose is relevant it's the Attorney General, I 

7  would think. And I'm really troubled by the notion of the 

8  Court reaching down into the bowels of the Justice Department 

9  to determine who initiated what. But I was curious who is 

10   the -- at what level does the Attorney General assist? 

11            SOLICITOR GENERAL OLSON: May I? 

12             MR. KRIS: A FISA application that would go to the 

13 FISC would have an application document that would be signed 

14 by one of Jim Baker's lawyers from OIPR and it would have a 

15 declaration, an affidavit of facts signed by a supervisory 

16 special agent from FBI headquarters. It would have a 

17 certification under 1804(a)(7) in the case of electronic 

18 surveillance signed by typically the Director of the FBI but 

19 there are other officials designated to do so, and then a 

20 written approval and a signature from the Attorney General, 

21 the acting Attorney General or the Deputy. 

22             JUDGE SILBERMAN: It can be the Deputy. 

23             MR. KRIS: It can, yes. 

24             JUDGE SILBERMAN: So whose purpose is involved? 

25 When the Court -- the Court must determine whether the 


[Page 47]
 
1 purpose of a surveillance is dependent upon foreign 

2 intelligence information. 

3           SOLICITOR GENERAL OLSON: It must accept the 

4 certification that is provided with it unless it is clearly 

5 erroneous. 

6           JUDGE SILBERMAN: Yes, but my point in asking the 

7 question, whose purpose is relevant? Is it the line 

8 attorney? Is it the Deputy Attorney General? Is it the 

9 Attorney General, the FBI Director? 

10            SOLICITOR GENERAL OLSON: The Attorney General 

11  ultimately is certifying that the application and the 

12  components of the application are correct and meet the 

13  definitions of the statute. I would submit to you that under 

14  the statute it is therefore the Attorney General's ultimate 

15  authority, but of course from a constitutional standpoint the 

16  Attorney General is working under the auspices of the 

17  President of the United States. 

18            JUDGE LEAVY: The application has to be made by a 

19  federal officer. A postal inspector conceivably. It says, 

20  "Application for Court Order: A. Each application under 

21  this shall be made by a federal officer in writing under 

22  oath." Okay? Then the Attorney General, as I read it under 

23  1804-2 has to certify that it conforms to the Act. He's the 

24  lawyer that says this thing conforms to this Act. This thing 

25  is lawful under this Act. Then under (a)(7) you have to have 


[Page 48]

1 another certification by an Assistant to the President for 

2 national security affairs or some other executive officer who 

3 is appointed by the President and confirmed by the Senate. 

4 And that's where purpose comes in. We don't even have to 

5 talk about purpose until we get to this guy. And he's the 

6 one who tells us what the purpose is. If I understand it 

7 correctly. And the Attorney General has nothing to do with 

8 the decision on what the purpose is. It's the administrator. 

9 And in this case I take it it's the Director of the FBI. 

10  Now, it might be more healthy if that were another executive 

11  officer. Do you follow me? 

12            SOLICITOR GENERAL OLSON: Well, I'm not sure that I 

13  do but -- so let me ask you to 

14            JUDGE LEAVY: All right. Let's just walk through 

15  the application. 

16            SOLICITOR GENERAL OLSON: I understand what you 

17  said with respect to the identity of the persons in this 

18  package that goes to the Court. 

19            JUDGE LEAVY: Yes, but nothing do I see with 

20  respect to the certification of the Attorney General. 

21            JUDGE SILBERMAN: Actually to make your point, the 

22  Section Two, (a)(2) calls for the approval of the Attorney 

23  General to make the application. (7) calls for a 

24  certification. And then (7)(A) and (E) refer to the -- well, 

25  it's not clear whether (B) does, I guess. (E) is a little 


[Page 49] 

1  ambiguous. But (A) says the certifying official deems the 

2  information sought to be foreign intelligence information and 

3  the certifying official, as Judge Levy suggested, is in 

4  Section Seven. 

5           SOLICITOR GENERAL OLSON: Right. 

6           JUDGE LEAVY: And that's the one that was amended 

7  by the Patriot Act. 

8           JUDGE SILBERMAN: Yes, by adding (b). 

9           SOLICITOR GENERAL-OLSON: A significant, yes. 

10            JUDGE SILBERMAN. So his question is, and I think 

11   it's a good question, is it the certifying official, the 

12   Assistant to the President for national security affairs, or 

13   a person designed by the President? And my impression is 

14   that it's the FBI Director. So is it the FBI Director who 

15   certifies that the information sought is foreign intelligence 

16   information and a significant purpose is to obtain foreign 

17   intelligence? 

18            SOLICITOR GENERAL OLSON: That's my understanding. 

19   And I've seen that signed by the Director of Central 

20   Intelligence as opposed to the Director of the FBI, but I 

21   also understand and I will be corrected, I am sure, by my 

22   colleagues, as I understand it, the last person to look at 

23   this package who signs the approval, the Attorney General 

24   reads everything in that package and asks questions about any 

25   part of it because the Attorney General is taking 


[Page 50]
 
1 responsibility for that application and everything in it. 

2           JUDGE LEAVY. But he would have to have a 

3 certification of purpose from somebody else? 

4           SOLICITOR GENERAL OLSON: Yes, he would have to. 

5 Which as I read the statute the FISA Court, the FISC, then 

6 must accept unless it's clearly erroneous. 

7           JUDGE LEAVY: Oh, yes, I follow that. I'm just 

8 talking about the mechanism. We're talking about who can 

9 apply. You tell me why a postal inspector couldn't apply. 

10            SOLICITOR GENERAL OLSON: I'm not saying a postal 

11  inspector couldn't apply provided -- 

12            JUDGE LEAVY. He can get the Attorney General to 

13  say this conforms to the law and he can get somebody to say 

14  this has to do with national security, and he's home free. 

15            SOLICITOR GENERAL OLSON; I understand. And from a 

16  constitutional standpoint it would not make sense for a Court 

17  to say it has to be this official or that official. 

18            JUDGE LEAVY: Now, if you were writing on whole 

19  cloth you would simply repeal all the Attorney General's 

20  Order on this subject and just say we will tell you on each 

21  application as required that we have these minimization 

22  procedures, would you not? 

23            SOLICITOR GENERAL OLSON: Well, probably that's a 

24  good suggestion. However, I wouldn't foreclose the Attorney 

25  General giving guidance to his subordinates with respect to 


[Page 51]
 
1 how regularly these things are handled, assembled and so 

2 forth. There is value from the standpoint of the Attorney 

3 General of -- 

4           JUDGE LEAVY. For internal purposes. 

5           SOLICITOR GENERAL OLSON: For internal purposes of 

6 making sure that this I is dotted and this T is crossed and 

7 it presents itself in a certain format. 

8           Now, these applications -- again, I have limited 

9 experience, but my experience has been frequently if they're 

10  describing a particular so-called presumed-to-be terrorist 

11  organization or a nation or there are reapplications for -- 

12  or an application for an extension which contain some of the 

13  same language about some of the same organizations, but to 

14  regularize the process, and that's I think at least some of 

15  the Attorney General guidance, at least this Attorney 

16  General's guidance is intended to do. 

17            The 1995 -- I agree with you, that if I were 

18  writing --

19            JUDGE SILBERMAN: Well, may I go back to past 

20  history. For one, your brief argues the original FISA 

21  statutes never adopted the bifurcation between primary 

22  purpose and a criminal law purpose. However, it is fair to 

23  say, is it not, that the first time the Justice Department 

24  presents that argument it is before this Court. It never was 

25  presented before. 


[Page 52]
 
1            SOLICITOR GENERAL OLSON: That's correct. 

2            JUDGE SILBERMAN: And indeed the Justice Department 

3  went along with the bifurcation for many years. Not only 

4  went along but endorsed it in the letter to Congress asking 

5  for modifications of the FISA statute and the Patriot Act. 

6            SOLICITOR GENERAL OLSON: It endorsed it as a 

7  reality that the Department was dealing with. Whatever the 

8  words that were used, Judge Silberman. And I'm here to say 

9  that we do not -- we do believe today and after having 

10   studied this as intensely as I could possibly have done, I 

11   believe that it is correct that that bifurcation based upon 

12   purpose is inconsistent with FISA and it was accepted as a 

13   matter of accommodation by the Justice Department over the 

14   years. 

15            JUDGE SILBERMAN: You said flatly to the Congress 

16   and your Assistant Attorney General said, "On the other hand, 

17   it's also clear that while FISA states the purpose of a 

18   search is for foreign surveillance, that need not be the only 

19   purpose. Rather, law enforcement considerations can be taken 

20   into account, so long as the surveillance also has a 

21   legitimate foreign intelligence purpose." 

22            SOLICITOR GENERAL OLSON: I would have used 

23   different words to describe that for the reasons I described 

24   here, but I think what has to be understood in the context of 

25   this situation that the Justice Department was facing an 


[Page 53]

1  emergency and made an effort in a short period of time to 

2  obtain the best possible relief -- 

3            JUDGE SILBERMAN: I don't mean to be critical. All 

4  I mean to do is try to make sense out of the present 

5  legislation. Judge Guy is absolutely correct, that the 

6  Patriot Act was designed to loosen restraints, but one of the 

7  restraints which the Justice Department told Congress it was 

8  suffering was the primary purpose test which it told Congress 

9  came out of FISA. 

10             SOLICITOR GENERAL OLSON: Which it had been told in 

11   turn by the FISA Court that that's where it came from, and 

12   that was a reality that it was dealing with. 

13             JUDGE SILBERMAN: Well, that's true. Now I'm 

14   trying to figure out what it means when Congress adds the 

15   phrase in (B) that a significant purpose of the surveillance 

16   is obtain foreign intelligence information. Doesn't that 

17   necessarily mean -- and indeed that goes to the second 

18   argument, the alternative argument in your brief, does that 

19   mean that a primary purpose can be criminal prosecution? If 

20   you accept the bifurcation. 

21             SOLICITOR GENERAL OLSON: I only accept it in the 

22   context that those words are used in the context of the 

23   reality that had evolved as a result of the 1995 Attorney 

24   General decisions, decisions of the --

25             JUDGE SILBERMAN: I'm just trying to figure out 


[Page 54]

1 what is that significant purpose. 

2            SOLICITOR GENERAL OLSON: And I believe if you take 

3  a significant purpose and the two principal changes to the 

4  extent that they're before us today are that change and 

5  1.806 (k).

6            JUDGE SILBERMAN: Coordination. 

7            SOLICITOR GENERAL OLSON: Yes, coordination and 

8  consultation. If you take those together against the 

9  framework of the awful reality that the Department and the 

10   President was faced with as explained in the Los Alamos 

11   report and in the General Accounting Office report that we 

12   also submitted to this Court is that the Department was 

13   attempting to be free from the shackles of having to quantify 

14   what it was motivated by or who was interested in what 

15   information provided, that the information -- that a 

16   significant purpose was foreign intelligence as defined by 

17   the statute. That it wouldn't have to say that that was 80 

18   percent of the reasons or 60 percent of the reasons or 49 

19   percent of the reasons and two percent this and five percent 

20   this. It was intended to make it easier for the Justice 

21   Department if it said not a primary purpose but a purpose. 

22            JUDGE SILBERMAN: Isn't it clear as well though 

23   that Congress had to mean that the other purpose would be 

24   criminal when it said that if a significant purpose of 

25   surveillance is to obtain foreign intelligence information, 


[Page 55]

1 it had to mean that the other purpose would be criminal. 

2            SOLICITOR GENERAL OLSON: Well, I don't accept that 

3  because I don't accept the notion that -- well, you see, the 

4  problem with that, Judge Silberman, that I have, and I 

5  understand we're not dealing with perfect clarity here and 

6  we're dealing with legislation that was passed without the 

7  full panoply of hearings and reports and so on and so forth, 

8  and we're dealing with legislation that was designed to deal 

9  with the crisis that had become stark as a result of 9-11 and 

10   because of these reports, so it isn't perfect, but the idea 

11   that a criminal prosecution -- that law enforcement and 

12   prosecution are the same thing, I can't bring myself to 

13   accept. 

14            JUDGE SILBERMAN: Certainly because you studied the 

15   FISA statute, and it seems to me that's a perfectly 

16   legitimate reading, but unfortunately that was not the 

17   reading of the Justice Department and that's not what they 

18   told Congress. And what interpretation would you have us 

19   give to the language of (7)(B) now? 

20            SOLICITOR GENERAL OLSON: I would insist that 

21   (7)(B) simply means that a certification by the appropriate 

22   officials at the Department, that the acquisition of foreign 

23   intelligence as a significant motivation for what was being 

24   sought here is enough and that the Department need not negate 

25   law enforcement prosecution or any of the other reasons that 


[Page 56]

1 the Government may have to seek this information. 
2            JUDGE SILBERMAN: Suppose the FISA Court had before 

3  it a case in which the application makes clear that the only 

4  methodology that the Justice Department contemplates is 

5  criminal prosecution, they wish to get this target and 

6  criminally prosecute him, not to prevent something happening 

7 in the future because of something he or she did in the past. 

8  And they are adamant on that. Would the FISA Court be 

9  authorized to say since the only purpose suggested or 

10   indicated in the documents before us is criminal prosecution, 

11   under (B),(7)(B), we deny it? 

12             SOLICITOR GENERAL OLSON: Well, I think that that 

13   would be still a legitimate application because we cannot go 

14   away from the definition in the statute. I don't believe 

15   that there is enough history of significance that changed a 

16   significant purpose to repeal the central definition in the 

17   statute as enacted in 1978. 

18             JUDGE SILBERMAN: You would have us give no meaning 

19   to (B), it means nothing? 

20             SOLICITOR GENERAL OLSON: No, I do believe that it

21   does, provided that the certification by the appropriate 

22   officials which can only be reviewed on a clearly erroneous 

23   standard must be accepted and that the FISA Court does not 

24   have to start quantifying what the purpose is. You see, 

25   under the statute the Attorney General is not going -- this 


[Page 57]

1 information however it's acquired or whatever the motivation 

2   of that attorney, the Attorney General might be at the time 

3   the application is submitted to the Court, that motivation 

4   may change later on. The Attorney General has to decide 

5   later whether or not that information once acquired will be 

6   used for a prosecution. And it seems inconceivable -- you 

7   posit something that's theoretically possible but in the real 

8   world I do not think it's possible. I do not think it is 

9   possible that once this information is obtained if it has to 

10   do with terrorists and it has to do with agents of foreign 

11   powers who are deemed under the definitions of the statute to 

12   be violating or could be violating or might be violating the 

13  criminal laws of the United States, that that information 

14   would then be put in a box someplace that could only and 

15   exclusively and invariably be used for a criminal 

16   prosecution. The Attorney General might decide to go forward 

17   with that prosecution, but would that information be 

18   discarded? I don't think so. I think that information would 

19   still be a part of the information that is acquired with 

20   respect to a threat from people that want to violate the 

21   criminal laws who are agents of a foreign Government. 

22             In other words, I still don't buy the dichotomy, 

23   however persuasive it might be packaged in terms of, well, if 

24   you have only this in mind and only this and you can only do 

25   that, I don,t think that's realistic. And I think also that

 
[Page 58]

1 that -- the focus on that amendment to the statute has to be 

2  informed by the circumstances, the history and 1806(k) which 

3  means that the consultation is permissible and the 

4  consultation and coordination, whatever it might be, can't 

5  preclude -- cannot be used as Justification to preclude the 

6  issuance of the Order. 

7            JUDGE SILBERMAN: Isn't it a general proposition 

8  that you do not look to an existing Congress to interpret the 

9  language of a prior Congress except under one exception, when 

10  the new Congress amends a statute, and then its understanding 

11  of an old statute becomes relevant even if the understanding 

12  is incorrect? 

13            SOLICITOR GENERAL OLSON: Under certain 

14  circumstances, yes, but also that repeal or alteration by 

15  implication is disfavored, and we've got a statute where it 

16  is not by any means clear that Congress was A), doing that or 

17  B), making it more difficult. It is inconceivable to me that 

18  the Court would accept an explanation that Congress was 

19  intending to validate something that was creating a serious 

20  difficult problem for the Executive to do that job, the 

21  responsibility given to it by the statute in the 

22  circumstances which we're all facing at that particular 

23  point. 

24            JUDGE SILBERMAN: Did you testify before Congress? 

25            SOLICITOR GENERAL OLSON: No. 


[Page 59]

1             JUDGE SILBERMAN: Did Mr. Kris testify before 

2   Congress on this legislation? 

3             MR. KRIS: Yes, yes, I did. 

4             JUDGE SILBERMAN: May I ask him a question? 

5             SOLICITOR GENERAL OLSON: Yes, of course. 

6             JUDGE SILBERMAN: Mr. Kris, when you testified 

7   before Congress in support of the change to a significant 

8   purpose did you ever indicate to Congress the argument that's 

9   being presented to us, that the original FISA statute did not 

10   require a primary purpose? 

11             MR. KRIS: Only in passing. I was testifying, I 

12   think, on September 24th in the Senate Intelligence Committee 

13   about our proposal which at that time was "a purpose" which 

14   was later pushed back to "significant purpose." So I was 

15   focused on that and a number of other provisions in the bill. 

16   I do recall from my testimony and reviewing the transcript 

17   which is available on Westlaw, a very quick passing reference 

18   to this idea that prosecution of a spy and terrorist is also 

19   a protective method within the ambit of -- 

20             JUDGE SILBERMAN: Is it not fair to say that 

21   Congress was certainly under the impression that the primary 

22   purpose test stemmed from FISA, which is one of the reasons 

23   they amended it. That is the reason they amended it. 

24             MR. KRIS: I don't know if it stems from FISA. As 

25   Mr. Olson was saying, I am saying it is the reality of the 


[Page 60]

1 Court decisions. 

2            JUDGE SILBERMAN: No, Congress thought it stemmed 

3  from FISA, whether or not it's true. I read the statements 

4  of Senator Leahy, Senator Wellstone, Senator Feinstein. They 

5  all seemed to believe that the primary purpose test is in 

6  FISA. 

7            MR. KRIS: Yes, at least as interpreted by the 

8  courts, but I'm not sure, I think what Mr. Olson is saying is 

9  that when you have two legislative amendments to a statute, 

10  one of which comes from the Executive Branch, another one of 

11  which is proposed by Congress itself, I don't think it's 

12  correct to read them as nullifying each other the way you're 

13  suggesting. 

14            SOLICITOR GENERAL OLSON: Well, the other thing 

15  that I would add is that I don't think it is advisable to 

16  assume that this Congress was unfamiliar with the history and 

17  the reports and the ample explanation that was given by the 

18  1978 Congress and I will refer, if I may, to the House 

19  Report, I think it's the same one that I referred to earlier 

20  which is quoted on page 37 of our brief.  In 1978. Judge 

21  Silberman, the legislative history is replete with 

22  understanding as is -- as is the Patriot Act, understanding 

23  that foreign intelligence may be used in a variety of ways. 

24  The last sentence, the last two sentences of the quote on 

25  page 37 of our brief to which I'm referring which is from 


[Page 61]

1 page 49 of the House Report, 1978, the House said, "Obviously 

2  use of foreign intelligence information as evidence in a 

3  criminal trial is one way the Government can lawfully protect 

4  against clandestine intelligence activity, sabotage and 

5  international terrorism.    The bill therefore explicitly 

6  recognizes that information which is evidence of crimes 

7  involving those things can be sought, retained and used 

8  pursuant to this bill." 

9           JUDGE SILBERMAN: What about the Attorney General's 

10   own report? I have a copy of one of the reports going back 

11   to, I think, May, 2000, and Congress would have had this, I'm 

12   sure. The statute does not require the sole purpose of the 

13   FISA coverage is to obtain foreign intelligence information, 

14   although it seems clearly somebody obtaining foreign 

15   intelligence information cannot be "a purpose". Instead, the 

16   cases suggest that the primary purpose of FISA intelligence 

17   must be primary purposes information as opposed to criminal. 

18   Certainly the Justice Department seems to have accepted these 

19   judicial opinions and told Congress it did. 

20            SOLICITOR GENERAL OLSON: There's no question about 

21   that. And the Circuit Court decisions you referred, the 

22   Ninth Circuit Court decision goes in the other direction. 

23            JUDGE SILBERMAN:  They just reserved the issue. 

24            SOLICITOR GENERAL OLSON: Yes, none of those are 

25 conclusive one way or the other on this subject. So there is 


[Page 62]
 
1  no Federal Court of Appeals law that should guide you or 

2  constrain your decisions with respect to it. The Court -- 

3  yes, the Justice Department regrettably, in my opinion, went 

4  along with where the FISA Court was taking -- maybe they were 

5  hand in hand, there's no point in saying someone was wrong, 

6  where someone was responsible for this, but the outcome was 

7  wrong. The very report which you just referred to describes 

8  in tragic detail how an intelligence investigation can go 

9  wrong when the people who are working to accomplish these 

10   objectives do not talk to one another. 

11             At one point I was talking about -- in preparation 

12   for this argument, and I talked about the concept of a 

13   surgeon and the anesthesiologist not communicating with one 

14   another except through the hospital administrator about the 

15   condition on a moment-to-moment basis of a patient who is on 

16   the operating table. And someone said you've got it a lot 

17   more easy than it is, if that operation is taking place in 

18   Los Angeles and the person that has to be consulted and 

19   scheduled for a consultation is in Washington and there are 

20   only certain times during the week when that can happen. 

21   Instead of a manic exchange of information when people who 

22   are attempting to accomplish a result have in the way of 

23   communication, we have made it virtually impossible. 

24            As I said earlier in order to be able to connect 

25   the dots someone has got to have knowledge of those various 


[Page 63]

1  different dots. We can't say that the constraints under 

2  which we're operating now caused what happened or failed to 

3  prevent what happened or what happened on September l1th 

4  could have been prevented had we done this the right way, but 

5  we do know, I have no doubt whatsoever, if one would want to 

6  make it difficult for us to detect and prevent another 

7  September 11th, this is the way I'd go about doing it. I
 
8  would allow people that have intelligence from here not to 

9  talk with people who are experienced here. I would allow 

10  people that gather intelligence not talk to people who have 

11  the resources of a grand jury or immunity who can obtain 

12  other information. I would not allow knowledge with respect 

13  to a terrorist ring be brought to the attention of someone 

14  who can put legal pressure on someone to come over to the 

15  other side. All of these things, each of you know as Judges 

16  who have dealt with the criminal justice system, there are 

17  resources that are available to prosecutors that aren't just 

18  prosecutorial. That law enforcement, law enforcement, 

19  broadly speaking, the Federal Bureau of Investigation, is 

20  engaged in law enforcement and collects this information, law 

21  enforcement people are engaged in intelligence gathering. 

22  There is no rational bifurcation by which Government can 

23  operate in this fashion. It blinks reality to suggest that 

24  people can't communicate with one another. 

25            Therefore, yes, we have ourselves in this dilemma 


[Page 64]
 
1 that makes us ineffective and inefficient and unable to deal 

2 with threats against our people and our country because of 

3 the acceptance by the Court of this false dichotomy and the 

4 acceptance of the Executive Branch with it. 

5           When FISA was passed, the nature of the threat to 

6 this country was different than it is today. Most 

7 intelligence matters were Government to Government. We had 

8 people that were operating on behalf of a Government and 

9 prosecutions weren't maybe as often, although they were 

10  certainly contemplated by the statute. Because espionage and 

11  others acts could be dealt with Government to Government. 

12  People could have been sent out of the country. That sort of 

13  thing could take place. But yet the statute did contemplate 

14  international terrorism. I don't think it contemplated it 

15  quite the way we see it now, but it enacted the tools 

16  necessary for the Government to protect its citizens against 

17  that kind of threat. And because of the history that got us 

18  into this dreadful box that we're in today it was realized at 

19  the time this Patriot Act was being considered and amendments 

20  to FISA weren't the only things that were being considered, 

21  but because the terrible dilemma was recognized by Congress 

22  and to change "the purpose" to "a significant purpose" made 

23  it presumably easier for the Government to do what we know 

24  the Government needs to do and we know what the Government 

25  was intended to do when FISA was passed, and because the 


[Page 65]
 
1 Congress went on and enacted 1806(k) to make it clear that 

2  consultation and coordination was not something that could 

3  prevent the certification or the granting of the order. 

4            What the FISA Court did on May 17th is flatly 

5  inconsistent with 1806(k) and flatly inconsistent with the 

6  purpose. 

7            JUDGE GUY: Let me ask this, they did announce that 

8  no one is supposed to leave the room, but maybe this is a 

9  good time to give everybody an opportunity to leave the room 

10   and we'll take a ten-minute recess. 

11             (Recess) 

12                  JUDGE GUY: Now, let me just say that for the 

13   balance of the proceedings -- I just was talking to my two 

14   colleagues and we wanted to make sure that we did not 

15   discontinue this until the three of us had answered any 

16   questions that we might have but conversely we certainly 

17   don't want to discontinue it until you've had any opportunity 

18   to present anything to us that you haven't presented as yet. 

19   So does any of what has transpired to this point suggest to 

20   any of you that there's something that you need to say 

21   affirmatively and not in response to a specific question? 

22             SOLICITOR GENERAL OLSON: I may say thank you, Your 

23   Honor. Because we got you the so-called Los Alamos report 

24   which is also referred to as the Attorney General report, 

25   relatively late in the day, I would simply add that I believe 


[Page 66]

1  we supplied you with sufficient copies but to the extent that 

2  we can amplify that, we'd be happy to do that. We submitted 

3  those when we did because as I was preparing that I thought 

4  what additional information this Court would want to have as 

5  we perceived the magnitude of the problem. Those two 

6  documents we wanted you to have.

7           What has come up here so far is we can provide you 

8  with an additional discussion of constitutional questions at 

9  whatever schedule would be comfortable to you. We can 

10   probably do it within a week. And before you respond to 

11   that, I would say that the other thing we would supply is a 

12   comparison of FISA and Title III which is interesting, I 

13   thought, both with respect to the issue of probable cause and 

14   the minimization issue and then thirdly, I thought that it 

15   might be helpful which we've done in our brief but which we 

16   could amplify briefly, a brief comparison of the two 

17   principal changes, the 1806(k) and the "a significant 

18   purpose" change and the sense of how it could be reconciled. 

19   I would say if today is the 9th if we could have a week from 

20   tomorrow maybe to provide those. 

21            JUDGE GUY: That's fine. Really we don't need to 

22   set limits because you feel the sense of urgency of this, and 

23   so without us telling you we know you'll submit something 

24   that is only constrained in time, by your wanting to put the 

25   best product forward that would help us. 


[Page 67]
 
1             SOLICITOR GENERAL OLSON: Exactly. We very much 

2  are concerned that we get everything to you that we can as 

3  quickly as possible. 

4            JUDGE SILBERMAN: The memorandum on 

5 constitutionality should assume arguendo your second argument 

6  rather than your first, your second alternative argument that 

7  the significant test is relaxation of the primary purpose 

8  test. That's your second alternative argument in the brief. 

9  I recognize that you don't like to be driven back to the 

10    second argument but that's where the constitutional question 

11    would come. Otherwise it would be a question whether FISA as 

12    initially passed was constitutional. What you would view, I 

13    suppose, as a similar kind of issue insofar as it did not 

14    require a primary purpose. Insofar as it did not follow 

15    Truong. Either way. Or another way of putting it is Truong 

16    constitutionally compelled. 

17              Now, let me ask you this question. This is an 

18    ex-parte proceeding after all. If we conclude that it is 

19    constitutional, is it not fair to suggest that our opinion 

20    would be better for the Government if it specifically 

21    analyzed it and so concluded? 

22              SOLICITOR GENERAL OLSON: Yes. 

23              JUDGE SILBERMAN: Because it seems to me eventually 

24    as a parallel question or corollary we expect to get some 

25 amicus briefs. Do you have a view what we should do with 


[Page 68]

1  amicus briefs? 

2            SOLICITOR GENERAL OLSON: Our position is we have 

3  no objection to the Court receiving amicus briefs. In fact, 

4  I think it's probably good that the Court receive amicus 

5  briefs. 

6            JUDGE SILBERMAN: That sets a precedent for this 

7  process which worries me a little bit. 

8            SOLICITOR GENERAL OLSON: I understand that. I
 
9  think that this is an unusual situation because it would not 

10   typically have occurred that this opinion would become public 

11   or that this appeal would have been taken or that it was 

12   going to be scheduled on a schedule -- I don't think a Court 

13   deciding in a particular case to accept or not accept an 

14   amicus brief has ever been done as requiring the Court to 

15   always do that or invariably do that, but because this is a 

16   special issue and it is important and for the very reasons 

17   that you imply when you say that it might be good to address 

18   and resolve the constitutional questions, I think it's good 

19   for the process. 

20            We would like, again with the constraints that we 

21   want, to get this -- this is one of those cases where we can 

22   say it's a potential matter of life or death and so, 

23   therefore, we want to get it done, we want to make sure we 

24   get to you everything we can as quickly as we can but I would 

25   like to once we saw those amicus briefs have an option within 


[Page 69]

1 two days or so, again we'll go as fast as we can, to respond 

2 to those. 

3           JUDGE SILBERMAN: We have a letter that the ACLU is 

4 going to file a brief sometime around the 20th, is it? 

5           JUDGE GUY: I have not seen that. 

6           THE COURT: Have we seen it? 

7           MS. RYAN: Yes, it's the 20th. 

8           SOLICITOR GENERAL OLSON: If I had a preference, it 

9 would be that they would do it more quickly, but that's not 

10  for me to say. 

11            JUDGE SILBERMAN: That's ten days. Yours would be 

12  a week. About the same time. But then you would get a week 

13  and you would want time to respond if you thought there was 

14  something of importance. 

15            SOLICITOR GENERAL OLSON: We'll accept whatever the 

16  Court decides with respect the scheduling and we will work 

17  very very fast. We appreciate the fact that the Court 

18  scheduled this hearing so quickly, and because things are 

19  occurring that we know are occurring that concern us with 

20  respect to this subject we want -- 

21            JUDGE SILBERMAN: There are two areas that I'd like 

22  to ask questions on if the Chief would indulge me. The first 

23  of which is you did not specifically explicitly at any time 

24  in the brief make an argument that the relative intrusiveness 

25  of the District Court's -- FISA Court's opinion had itself 


[Page 70]

1 constitutional implications or even proprietary implications 

2  with respect to the limits of judicial power. I am familiar 

3  with a case, as you are, where Justice Rehnquist in the 

4  opinion once said in another context this would be a 

5  bureaucratic success story but in this context it has 

6  constitutional implications. Do you recall the case? 

7            SOLICITOR GENERAL OLSON: Yes. 

a            JUDGE SILBERMAN: We are an Article III Court. 

9  Insofar as the FISA Court set forth certain procedures for 

10   the Justice Department to follow in the gathering of 

11   information, set forth barriers to discussions between 

12   various divisions of the Department and went so far as to 

13  require a chaperone, does that have Article III implications. 

14             SOLICITOR GENERAL OLSON: Well, I -- yes, it has 

15   Article III implications and it has Article II implications. 

16   And the last two points on my notes are things that I wanted 

17   to say, although I touched on them earlier, address those two 

18   related points. That to the extent that the statute as it's 

19   being implemented hasn't invited the FISA Court into making 

20   substantive judgments about what's the right motivation or 

21   what are the right circumstances under which the President 

22   can or should or may seek to develop information necessary 

23   for the President to perform his function, that raises 

24   Article III implications and Article II implications, and to 

25   the extent that the FISC is purporting to reorganize the 


[Page 71]
 
1 Executive Branch, the so-called chaperone function, I don't 

2  think Congress could constitutionally tell the Executive or 

3  the Attorney General that he could not talk to this 

4  subordinate without involving that subordinate. And I 

5  certainly don't think the Court can do so. 

6            I think it is -- it was -- it originated in part 

7  with the Attorney General's I think misconceived 1995 

8  protocol, but I think the Court -- and the Court was 

9  certainly well intended because I think in one sense the 

10  Court is receiving applications, and a regular litigant 

11  before the Court is the office of Intelligence Policy and 

12  Review and that may be a matter of good Government as far as 

13  the Court is concerned and it may be a matter of good 

14  Government as far as the Executive Branch is concerned, but 

15  it does raise very serious constitutional questions in my 

16  judgment. 

17            We did not focus on that in the brief and we may 

18  include a discussion of that in our constitutional brief that 

19  we file, but Judge Silberman, the idea that the Court can 

20  interdict the free flow of information that the Attorney 

21  General or the President needs to save the lives of people in 

22  this country where there's no requirement in the statute or 

23  anyplace else that gives the Court the power to do that, I 

24  think is very very serious. 

25            JUDGE SILBERMAN: My next question has to do with 


[Page 72]
 
1 how we should look at the FISA application in constitutional 

2  terms. Should we look at it as a warrantless process? 

3  Should we look at it as a modified warrant? And how -- what 

4  are the differences that we should focus on between the FISA 

5  application and let us say, a Title III. It's fair to say, 

6  is it not, the biggest difference is that under Title III you 

7  have a particularity requirement of the Fourth Amendment 

8  which we do not have here. Is that correct? 

9            SOLICITOR GENERAL OLSON: Yes. 

10           JUDGE SILBERMAN: Does that mean that we should 

11   look at this as a non-Fourth Amendment warrant or a warrant, 

12   if you wish. 

13            SOLICITOR GENERAL OLSON: That's a very good 

14   question and perhaps we can include some of that in our 

15   constitutional issue because I think I can give a better 

16   answer in writing than spontaneously here, although I've 

17   given it some thought. It seems to me that the Fourth 

18   Amendment collectively in terms of its reasonableness 

19   requirement and its warrant requirement and what we have here 

20   with respect to the systems in advance based upon probable 

21   of --

22             JUDGE SILBERMAN: A different kind of probable 

23   cause. 

24             SOLICITOR GENERAL OLSON: A different kind of 

25   probable cause, but the Constitution doesn't specify any kind 


[Page 73]
 
1 of probable cause. 

2             JUDGE SILBERMAN: Precisely. 

3             SOLICITOR GENERAL OLSON: And it's a probable cause 

4   shaped by the need. And the reason why we wanted to give you 

5   this analysis of Title III and FISA side by side is that 

6   there is a great deal of ultimately similarity in the 

7   standard in that the definition of an agent of a foreign 

8   power includes references to violations that the individual 

9   not only has connections with the foreign Government or a 

10   foreign power but that is engaged in activities that involve, 

11   could involve or may involve the violation of the criminal 

12   statutes of the United States. So to that extent there's a 

13   lot of similarity here. The difference is that it is taking 

14   into consideration the nature of the threat that's being 

15   addressed by the President, the nature of the circumstances. 

16   That is to say, a foreign power engaged in criminal 

17   activities might be different, the level of threat might be 

18   different, the level of resistance to information and 

19   barriers to information since we're talking about -- 

20             JUDGE SILBERMAN: And the key to the reasonableness 

21   of any search is the exterior threat. 

22             SOLICITOR GENERAL OLSON: Yes. And so, therefore, 

23   I think those issues have to be looked at in that context, 

24   and I think that we will satisfy you that -- 

25             JUDGE SILBERMAN: There are two ways to look at 


[Page 74]

1    this. One can say this is not covered by the Constitution 

2    altogether because it's inherent executive power. The second 

3    way is to say, well, it's a reasonable search because the 

4    threat is so great even if it was constitutionally covered. 

5             The difference between -- is it fair to say the 

6    difference between a Fourth Amendment, classic Fourth 

7    Amendment search and a FISA application, on the one hand a 

8    FISA application is a little more searching because you have 

9    to establish the individual you're targeting but you don't 

10   have to under Title III if you know the facility is being 

11   used to commit a crime and you don't know who the individual 

12   is committing the crime and you don't have to identify him. 

13   You do have to identify the target here and you have to 

14   identify the agency of a foreign power. You do not have to 

15   identify the facility used. Therefore you don't have the 

16   particularity requirement of the Fourth Amendment. 

17            SOLICITOR GENERAL OLSON:- I agree with all that you 

18   said. There also is a certification with that application 

19   that's being filed and the means that are suggested to 

20   implement that application are reasonably calculated to 

21   obtain foreign intelligence, and that other methods are 

22   insufficient or inadequate, I can't remember the statutory 

23   term, to obtain that information. 

24            JUDGE SILBERMAN: But do you not have to show that 

25   it is likely the particular facility that you're searching, 


[Page 75]

1   phonetapping or whatever, is likely to produce anything? 

2             SOLICITOR GENERAL OLSON: I think that's correct. 

3   And I will be corrected immediately upon leaving the room if 

4   I'm not. 

5             JUDGE SILBERMAN: Now, if that were done on a 

6   domestic case, if this procedure was used domestically, it 

7   clearly would be unconstitutional. 

8             SOLICITOR GENERAL OLSON: Well, I haven't made that 

9   analysis. I'm not quarrelling with it. 

10            JUDGE SILBERMAN: Yes. I thought that would be an 

11  accepted proposition. So, therefore, you start with that and 

12  then you figure what do we have here? Do we have the 

13  President's inherent executive authority so it doesn't really 

14  matter what procedure you use, or are the procedures tailored 

15  to the threat and therefore it's a reasonable search even 

16  under the Fourth Amendment since the particularity of the 

17  Fourth Amendment would have to somehow be relaxed, given the 

18  nature of the threat. 

19            SOLICITOR GENERAL OLSON: Yes, I agree that both of 

20  those issues are informed by how the Court approaches it and 

21  how we approach it because we do have those characteristics. 

22  I don't want to put it as I sit here today in any particular 

23  box because I think that the Fourth Amendment to the extent 

24  it limits something, and the Court can say the Fourth 

25  Amendment doesn't apply and the Constitution doesn't apply, 


[Page 76]

1 yet the Constitution applies to everything that the Executive 

2 does. That's why I'm resisting that analytical framework. 

3           JUDGE SILBERMAN: I'm a little puzzled exactly how 

4 to look at that. 

5           SOLICITOR GENERAL OLSON: We'll address that. 

6           JUDGE SILBERMAN: Could we see some of the people 

7 who actually filed applications for FISA? What do they 

8 typically have that would not be in a Title III and what does 

9 a Title III have -- 

10            SOLICITOR GENERAL OLSON: We talked about that 

11  because we anticipated that. We're prepared to respond to 

12  that question. I can't remember who is the best person. 

13  It's a combination of people. 

14            JUDGE GUY: I thought you were submitting a 

15  document or had submitted it that does the comparison between 

16  Title III and -- 

17            SOLICITOR GENERAL OLSON: Yes, that's what we 

18  intend to do. 

19            JUDGE SILBERMAN: The documents will answer my 

20  question better than anyone? 

21            SOLICITOR GENERAL OLSON: I believe so. And what I 

22  did in connection with this is compile illustrative Title III 

23  applications and illustrative FISA applications which we 

24  could attach to that brief which I think would answer it 

25  better than anything that we could do here today. 


[Page 77] 

1             JUDGE SILBERMAN: That's fine. 

2             JUDGE LEAVY: Now, I'm -- the first one question I 

3   have is once again under 1802 I think it is, that's the one 

4   where surveillance is undertaken without a warrant. 

5             SOLICITOR GENERAL OLSON: Yes. 

6             JUDGE LEAVY: Or without an order of the Court. 

7   That (2) speaks of minimization procedures and under 

8   (a)(1)(c) requires an Attorney General report such 

9   minimization procedures and changes thereto to the House 

10  Permanent Select Subcommittee on intelligence. Has anything 

11  been done under that Section? 

12            SOLICITOR GENERAL OLSON: May I inquire? 

13            JUDGE LEAVY: Yes. Reporting minimization 

14  procedures to the House Permanent Select Subcommittee on 

15  Intelligence. 

16            MR. BAKER: There are standard minimization 

17  procedures both for the regular FISA surveillance that we've 

18  been talking about as well as the 1802 surveillance, and I 

19  believe those were submitted to Congress when they were 

20  adopted. 

21            JUDGE LEAVY. Okay. So not only has the Justice 

22  Department adopted the procedures that we are talking about 

23  and reported them to the Foreign Intelligence Surveillance 

24  Court but it has also adopted procedures and reported them to 

25  the Committee for the purposes of 1802. 


[Page 78]
 
1             MR. BAKER: I believe that's correct, Your Honor. 

2   I can check to verify for the record that we actually 

3   submitted those because they date back sometime.

4             JUDGE LEAVY: And do we know whether they are the 

5   same or different? 

6             MR. BAKER: They are different to some degree, 

7   Judge. I did not review those this morning before coming in 

8   but they are different to some degree because of the types of 

9   information that they focus on. 

10            JUDGE LEAVY: And do they go along the same lines 

11  of this attempt to isolate segments of the investigative arm 

12  of the Justice Department? 

13            MR. BAKER: They're different procedures and they 

14  break it down and they go through the acquisition, retention 

15  and dissemination. 

16            JUDGE LEAVY: But they're ostensibly minimization 

17  procedures and that's all I'm interested in. 

18            MR. BAKER: They're clearly minimization 

19  procedures. 

20            MR. KRIS: Both the 1802 minimization procedures 

21  and the ordinary minimization procedures really don't address 

22  coordination between intelligence and law enforcement. The 

23  coordination issue is addressed in the separate procedures 

24  that were adopted in July, 1995 and the ones adopted in 2002 

25  by the Attorney General. 


[Page 79]

1            JUDGE LEAVY: Under the banner of minimization. 

2            MR. BAKER: we do have provisions in there where 

3 you talk about dissemination of information that implement 

4 the minimization standard that we were talking about before. 

5            JUDGE LEAVY: Now   have some questions that may 

6 sound very basic, so bear with me. The Office of Policy 

7 Review --  
8            SOLICITOR GENERAL OLSON: The Office of 

9 Intelligence Policy and Review. 

10             JUDGE LEAVY: And Review is constituted to include 

11  lawyers only? 

12             SOLICITOR GENERAL OLSON: Let me ask Mr. Baker to 

13  address that. 

14             MR. BAKER: I'm Counsel for Intelligence Policy, so 

15  I'm the head of the Office ot Intelligence Policy and Review 

16  and we have approximately 30 attorneys on staff as well as 

17  support people, secretaries, paralegals and so on as you 

18  would in any sort of legal office. 

19             JUDGE LEAVY: And what role does that office play 

20  in each application?          1 

21             MR. BAKER: With respect to each application we 

22  both prepare the applications and then present them to the 

23  Court in this room. So we are the attorneys on behalf of the 

24  United States who appear before the FISA Court. 

25             JUDGE LEAVY: And what decisionmaking goes on at 


[Page 80]
 
1 that level with respect to minimizations? 

2            MR. BAKER: Well, we prepare the applications, we 

3  include in them a description of the minimization procedures. 

4  There are standard minimization procedures that have been in 

5  existence for some time that tell the FBI how to operate its 

6  business. So those are included by reference in every 

7  application by saying we will follow the standard 

8  minimization procedures. 

9            SOLICITOR GENERAL OLSON: If I might interject. 

10  Those procedures are intended to avoid the acquisition, 

11  retention, utilization of information that is beyond the 

12  purpose for which the FISA -- it isn't intended to do what 

13  the FISA Court was talking about in the May 17th Order. It's 

14  intended to limit the acquisition of intelligence in a manner 

15  which is inconsistent with the statute to avoid misuse of the 

16  information that is collected incidentally in connection with 

17  that.  

18            JMGE LEAVY: Has that office ever done in any 

19  case -- was the Court's Order a brand new thing to the 

20  office? Had you done anything that you would say conformed 

21  to that Order or anticipated it or anything like that? 

22            MR. BAKER: Normally we include in every 

23  application a statement that the procedures that would apply 

24  are the standard procedures. And the procedures I'm talking 

25  about go back to 1997, there are various versions of it, but 


[Page 81]

1 there are current standard minimization procedure is for 

2  U.S.-person FISAs, for non-U.S.-persons FISA, for 

3  foreign-power FISAS. 

4            I believe -- if you want to look historically, I 

5  believe that the first applications that we filed with the 

6  FISA Court after the enactment of the Patriot Act, the Court 

7  issued supplemental Orders saying that in addition to the 

8  standard minimization procedures we were to also follow the 

9  July, 1995 Attorney General procedures which were, in the 

10   Court's view, minimization procedures. So starting I believe 

11   back in about November of last year we were ordered to follow 

12   those as well. 

13             JUDGE SILBERMAN: Were the '95 regulations 

14   described as minimization procedures?

15             MR. BAKER: Yes,  Your Honor. 

16             SOLICITOR GENERAL OLSON: Described by the FISA 

17   Court. 

18             JUDGE SILBERMAN:  No, by Justice when they issued 

19   the '95 regulations which pursued the primary purpose 

20   demarcation, were they described as minimization procedures? 

21             MR. BAKER: No, I believe the first time they were 

22   described as minimization procedures was by the FISA Court. 

23   What happened was in the Orders in November we were told 

24   basically put those in all your standard Orders because 

25   that's what we want. 


[Page 82] 

1            MR. KRIS: Just so the Court is aware, those orders 

2  with the handwritten annotations by the FISA Court are part 

3  of the record in this case. They're tab eight in our 

4  appendix that we filed in the FISC with this application. 

5            JUDGE SILBERMAN: I have one question. 

6            JUDGE GUY: Excuse me, I wasn't sure you were done, 

7  Judge Leavy, in the sense that I thought you were asking 

8  about the so-called chaperone requirement. 

9            JUDGE LEAVY: That's what I was trying to get to. 

10   To what extent did this office have anything to do with 

11   assigning tasks within the FBI as to who should be 

12   investigating crime and who should be investigating foreign 

13   intelligence purpose? Did you do anything by way of 

14   administering, if you will, the collection of information? 

15             MR. BAKER: Well, the FBI is responsible for 

16   running its own show and we don't have authority to tell the 

17   FBI what to do in that sense. However, we have implemented 

18   the -- we have been part of implementing the 1995 procedures 

19   since they were set forth by the Attorney General, and so we 

20   have been involved in that en ire process of interactions 

21   between the FBI and the Criminal Division. 

22             JUDGE LEAVY. But no administrative authority. 

23             MR. BAKER: We're a separate component. 

24             JUDGE GUY: Before the FISA Order you never told 

25 anybody don't get together and talk about this unless one of 

[Page 83] 

1 my attorneys is present. Or did you? 

2            MR. BAKER: Judge, I'm trying to remember if in any 

3  particular case -- that may have come up. Because in 

4  implementing the 1995 procedures I think those kinds of 

5  conversations may have been had. The AGRT Bellows report has 

6  a lengthy discussion about the history of all this and the 

7  interaction and makes an assessment about the relationship 

8  between the various components. 

9            SOLICITOR GENERAL OLSON: What Mr. Baker is 

10  referring to is the document which I have been referring to 

11  as the Los Alamos report, it's volume four, the Attorney 

12  General Review Team. I think that's very illuminating on 

13  that point because it demonstrates the extent to which that 

14  was done and the extent to which, in my judgment, grave 

15  damage to the ability of anybody to accomplish anything was 

16  done as a result. 

17            JUDGE LEAVY: Okay. So my specific question will 

18  probably be answered when I get around to reading it. 

19            SOLICITOR GENERAL OLSON: At least in part. 

20            JUDGE LEAVY: All tight. 

21            JUDGE GUY: Judge Leavy, I'm still not sure what 

22  the answer to the question is and now I'm interested in it in 

23  the sense did the FISA Court institutionalize what you were 

24  already doing with the chaperone requirement, or did they 

25  superimpose that requirement out of thin air on you? 


[Page 84]
 
1            MR. BAKER: The trouble I'm having, Judge, is that 

2  we work on thousands of cases a year and I'm just trying to 

3  give you an honest answer, and maybe it's one that we need to 

4  reflect upon and come back and address it in writing as part 

5  of the other submissions. I'll just trying to remember in 

6  every case -- we've worked on a lot of cases over the years, 

7  I just don't remember. 

8            MR. KRIS: I think I can say something in the way 

9  of an answer. The July 1995 procedures do contemplate 

10   informing OIPR when there's going to be a consultation 

11   between the Criminal Division and the FBI intelligence 

12   section. And the August 6, 2001 memorandum from Mr. Thompson 

13   also contemplated that OIPR will be invited. 

14            Now, there's a certain amount of I guess what can 

15   be called inside baseball here in terms of our relationship 

16   with the FISC and indeed the August 6th memo was promulgated 

17   by the Deputy only following a conversation with the 

18   presiding Judge of FISC at that time, Judge Lamberth. And so 

19   there is a less rigid so-called chaperone requirement of 

20   sorts in predecessor documents but, number one, I think, and 

21   this is something that Mr. Olson has been talking about, 

22   sometimes the Department will propose something because we 

23   know what is needed in a particular instance to get past go 

24   with the Court. And because we understand what the law is as 

25   interpreted and implied by the Court. Also, the chaperone 


[Page 85]
 
1 requirement I think takes on much more significance once the 

2   range of consultations that are permitted is expanded. If 

3   they can't give advice anyway, the prosecutors can't give 

4   advice anyway because of the primary purpose, then fewer 

5   consultations will occur. As you have more of them it 

6   becomes more significant. 

7            JUDGE GUY: But anyway initially the requirement 

8   was self-imposed, albeit perhaps anticipating what would 

9   please the audience that you were presenting it to. 

10            SOLICITOR GENERAL OLSON: Well, I think the correct 

11   answer is that plus. I think that there was a substantial 

12   encouragement that was coming from the Court and concern by 

13   the Attorney General in 1995 that there was a slippage in 

14   terms of whether all that dialogue was taking place in the 

15   right context and concern, as again explained in this report, 

16   that possibly if there was too much communication between the 

17   intelligence gatherer and the potential prosecutor, that that 

18   might adversely affect the success of a criminal prosecution 

19   and so forth. So it evolved in that fashion, became 

20   formalized in July of 1995 with the Attorney General's Order, 

21   and then continued to evolve until we got to the May 17th 

22   Order of the Court which then made it even more 

23   institutionalized and added some very very severe 

24   restrictions which hadn't existed at least in prior concerns 

25   of it up to that point. So it kept getting worse up to May 


[Page 86]
 
1  17th. 

2            JUDGE LEAVY: When did the word chaperone come into 

3  use in connection with this arrangement 

4            MR. KRIS: I believe that that word came into use 

5  when the brief was being drafted. 

6            JUDGE LEAVY: So it's not something that -- and 

7  when did the -- 

8            SOLICITOR GENERAL OLSON: I would have used the 

9  word straightjacket. 

10             JUDGE LEAVY: All right. And when did this concept 

11   of a wall, the so-called wall, when was it visualized as 

12   that? 

13             MR. KRIS: Well, at least as far back as the 

14   millennium cases. 

15             MR. BAKER: I believe there were walls as such 

16   separating the intelligence investigators and criminal 

17   investigators in other cases dating back a number of years, 

18   at least to the early nineties. 

19             JUDGE LEAVY: All right. And in the mechanical 

20   aspects of presenting these applications to the Court what 

21   does Mr. Kornblum have to do with that? At what point is he 

22   involved in any of the decision making? 

23             MR. BAKER: Mr. Kornblum is currently the legal 

24   advisor to the FISA Court. He works for the judiciary.   He 

25   does not work for the Department of Justice. 


[Page 87]
 
1            JUDGE LEAVY: And for how long. 

2            MR. BAKER: For two years or so. He used to have 

3  Ms. Skelly-Nolen's job and then was Senior Counsel. 

4            JUDGE SILBERMAN: He was Deputy Counsel and then he 

5  was Senior Counsel. 

6            MR. BAKER: Yes, I replaced him as Deputy Counsel 

7  and I've now become the Counsel. 

8            JUDGE LEAVY: Back to the Office of Intelligence 

9  Policy and Review, now, is there some sort of group review of 

10   each application or is that done as lawyers would do it, one 

11   will take a look at an application and make judgments about 

12   what's needed, what's there, and you look at that or is there 

13   some sort of a consultation among all of the office as to 

14   whether or not all the motives are in place and all of that? 

15             MR. BAKER: I'll describe how it currently works. 

16   We assign one attorney to work with the FBI to prepare an 

17   application. 

18             JUDGE LEAVY: In a single case. 

19             MR. BAKER: in a single case such as the case you 

20   have in front of you. One attorney was assigned to that 

21   case. An application was drafted, the application, the 

22   declaration, certification, the proposed Orders. All that 

23   was put together. It was then reviewed within our office. 

24   We have an assistant counsel that reviews it and then Ms. 

25   Skelly-Nolen reviews it, and in most cases I review it as 


[Page 88]

1   well. And it is also reviewed across the street. We refer 

2   to the FBI as physically across the street. It's reviewed by 

3   the substantive case agents at headquarters and in the field 

4   offices to make sure that it's accurate and so on. And it's 

5   also reviewed by the FBI General Counsel's office. 

6             JUDGE LEAVY: Okay. And that's reviewed for 

7   legality as well as the policy that goes into the 

8   decisionmaking as to whether to ask for it in that case. 

9             MR. BAKER: It's reviewed in all its totality 

10   because at the end of the day our office makes a 

11   recommendation to the Attorney General whether or not to sign 

12   this application. 

13             JUDGE LEAVY. And at what point in all of this is 

14   the certification of purpose made? 

is             MR. BAKER: Those are prepared as part of the 

16   package and they're sort of prepared along with the other 

17   things that you're working on, and then the whole package is 

18   reviewed in its totality as it goes through the process by 

19   all these different players. 

20             JUDGE LEAVY: And that certification is always made 

21   by the Director of the FBI? 

22             MR. BAKER: It's made by the Director of the FBI or 

23   some other senior official. If it's not the FBI Director, 

24   it's the Secretary of State, the Deputy Secretary of State, 

25   the Director of Central Intelligence, the Deputy Director of 


[Page 89]

1  the CIA. 

2            SOLICITOR GENERAL OLSON: And that occurs 

3  immediately before or shortly before it then comes to the 

4  Attorney General. 

5            MR. BAKER: That's correct. 

6            JUDGE GUY. Not to interrupt Judge Leavy, he wasn't 

7  done, I'm sure, but in these applications over time a certain 

8  amount of boilerplate gets developed, doesn't it? 

9            MR. BAKER: Certainly. 

10             JUDGE LEAVY: And then typically how much 

11   interaction is there in presenting the application to the 

12   Judge? Is it typically a yes-no answer on that or tinkered 

13   with? 

14             MR. BAKER: Typically we now have a Court session 

15   scheduled every week and so what we will do, with all the 

16   different Judges coming in, one Judge per week, we will file 

17   the applications ahead of time so the Judge has time to read 

18   the materials. And sometimes the Judge will call us in and 

19   ask us questions or we'll wait until the session of the 

20   Court, and at that point the attorney from OIPR, the FBI 

21   agent will be present and then the Judge can ask them 

22   whatever questions he or she may have. 

23             JUDGE LEAVY: Does it frequently or very often 

24   focus on the question of purpose? That is, the certification 

25   of purpose? 


[Page 90]
 
1            MR. BAKER: Questions about purpose do come up. We 

2  include -- we try to present to the Court ahead of time 

3  obviously anything that we think the Court may ask about that 

4  or be concerned about. Obviously all the material facts, and 

5  so you will see in the applications, related criminal 

6  matters. A section that describes in the declaration all the 

7  related criminal matters and the certifications will refer to 

8  those. 

9            SOLICITOR GENERAL OLSON: If I may amplify in part, 

10  you know, the Order that was issued in connection with May 

11  17th has this new rule, Rule 11 which is part of the record 

12  that is before you which requires "All FISA applications 

13  shall include informative descriptions of any ongoing 

14  investigations of FISA targets, as well as the substance of 

15  any consultations between the FBI and criminal prosecutors at 

16  the Department of Justice or the United States Attorney's 

17  Office." That's part of what we're here objecting to, but 

18  that was added as a part of this process. 

19            JUDGE LEAVY: Now, I can't get my hands on it 

20  immediately but it's that portion of the decisionmaking by 

21  the FISA Court that goes to you and you must accept that 

22  unless you find it's clearly erroneous, am I right? 

23            MR. BAKER: That's correct. 

24            SOLICITOR GENERAL OLSON: If the purpose is for 

25 intelligence, foreign intelligence, that the Court, unless 


[Page 91]
 
1  I'm mistaken in reading the statute, must accept it, unless 

2  it's clearly erroneous. The certification of purpose being 

3  foreign intelligence. 

4           JUDGE LEAVY: So now my reading on that is that 

5  that is akin then to a purely factual finding, that here is a 

6  factual assertion by the person whose mind set -- is the only 

7  one who can tell us what the purpose is, right? And he says 

8  the purpose is foreign intelligence. The Court then has to 

9  simply decide whether or not he's telling the truth. Is that 

10   a fair characterization of it or have you viewed it as 

11   something else? 

12            SOLICITOR GENERAL OLSON: How they have viewed it 

13   in the field, I'll let them answer, it seems to me that 

14   because the definition requires a finding by that official 

15   that there's a foreign agency, and foreign agency in 

16   connection with terrorism or some of those other acts 

17   requires the concept of the possibility that the activity 

18   engaged in may involve or could involve federal criminal 

19   activities, that that sort of equation might conceivably 

20   contain some partial legal analysis as a part of them, but 

21   the clearly erroneous standard it seems to me -- 

22            JUDGE LEAVY: Refers only to purpose, does it not? 

23            SOLICITOR GENERAL OLSON: Yes, but purpose of 

24 obtaining  foreign intelligence information as defined. 

25            JUDGE LEAVY: Okay. 


[Page 92]

1             SOLICITOR GENERAL OLSON: Have I stated this 

2   correctly? 

3             MR. BAKER: Yes, I think that's right. 

4             JUDGE LEAVY: Those are all the questions I have. 

5   I hope that I haven't suggested a total misunderstanding of 

6   all of this but, anyway, that's as much as I have in mind. 
 
7             SOLICITOR GENERAL OLSON: The same sort of 

8   questions we've been asking. 

9             JUDGE SILBERMAN: I'm a little confused by the last 

10   answer to Judge Leavy's question. I understood the clearly 

11   erroneous test would also include whether there's probable 

12   cause to believe the target is an agent of a foreign power. 

13   Is that not true? 

14             MR. BAKER: No, the Court makes a finding that 

15   there's probable cause to believe that the person is an agent 

16   of a foreign power and reviews the certification, in the 

17   U.S.-person cases to determine whether or not the 

18   representation made is clearly erroneous. 

19             JUDGE SILBERMAN: I see, but in the determination 

20   of whether it's probable cause would there also be any of the 

21   facts asserted to suggest probable cause, are those facts 

22   reviewed under clearly erroneous? 

23             MR. KRIS: No. I'm sorry. I mean under 1805 the 

24   Judge enters an Order if he finds that under 1805(a)(3)(a) 

25   there is -- if he finds that there's probable cause to 


[Page 93]

1  believe that the target of the  surveillance is a foreign 

2  power or agent of a foreign power, and I think that 

3  determination of probable is made in the usual way, but under 

4  Subsection 1805(a)(5) that's where the clearly erroneous 

5  standard comes in with respect to reviewing not the assertion 

6  of facts going to probable cause but rather the certification 

7  in 1804(a)(7). 

8            SOLICITOR GENERAL OLSON: Which is, "Deems the 

9  information sought to be foreign intelligence information, 

10   that a significant purpose of the surveillance is to obtain 

11   foreign intelligence information that cannot be reasonably 

12   obtained by normal investigative techniques," et cetera. 

13             JUDGE SILBERMAN: So that includes the type of 

14   foreign information designated. That has to be judged under 

15   the clearly erroneous standard. 

16             MR. BAKER: If it's part of the -- yes. 

17             JUDGE LFAIN: The certifications are not clearly 

18   erroneous. And one of those certifications is for the 

19   purpose, that only the person who tells us his purpose can 

20   possibly know, unless -- and we would take his word unless we 

21   think he is lying, right? 

22             SOLICITOR GENERAL OLSON: Yes, unless it's clearly 

23   erroneous. I think that connotes on the face of it. 

24             JUDGE SILBERMAN: I have one more question. 

25             JUDGE GUY: Absolutely. 


[Page 94]
 
1            JUDGE SILBERMAN:   Mr. Olson, we'd like you to 

2  answer a question that assumes arguendo that which you do not 

3  wish to assume, that is to say, that you're reduced to your 

4  second alternative argument, that the amendment to the 

5  statute caused by the Patriot Act relaxed the primary purpose 

6  test to a significant purpos test. But that therefore 

7  implies that the other purpose would be criminal. If that's 

8  the reading of the statute and that's your second alternative 

9  argument, that's the appropriate reading of the statute, how 

10  does one go about -- how does the Court go about determining 

11  as part of the review that we've just been describing whether 

12  there is a significant purpose or not? You have made the 

13  argument that it is no longer a comparative question, but how 

14  does the Court go about determining whether this is 

15  significant purpose of seeking foreign intelligence 

16  information as opposed to criminal prosecution? 

17            SOLICITOR GENERAL OLSON: That goes back I think to 

18  Judge Leavy's question, is that the official who has the 

19  expertise and so forth and has reviewed the materials, 

20  certifies that that is indeed the case. And that unless that 

21  is clearly erroneous the Court must accept that. 

22            JUDGE SILBERMAN: Give me an example of a clearly 

23  erroneous certification? 

24            SOLICITOR GENERAL OLSON: Well, I think if the 

25  application itself disclosed that it involved a behavior by 


[Page 95]
 
1 the target of an investigation and someone who was manifestly 

2 not connected with any foreign agency or something like that. 

3            JUDGE SILBERMAN: A criminal prosecution that did 

4  not relate to foreign intelligence. 

5            SOLICITOR GENERAL OLSON: The problem I have with 

6  the premise is that -- I have to say that I think that the 

7  problem that we have with the premise informs the answer to 

8  that question because the range of information, and I don't 

9  know whether -- you used the words criminal alternative that 

10  appear throughout this is law enforcement which was even more 

11  generalized than the notion of criminal prosecutions that are 

12  in the statute, information that relates to the conduct, 

13  activity, behavior of a person who engages in a conspiracy to 

14  bomb a building, the Capitol or something like that, may very 

15  well be, however it might relate to a criminal prosecution, 

16  might also at the same time have very valuable significance 

17  aside from the prosecution. 

18            JUDGE SILBERMAN:  I understand. Help me out. Give 

19  me an example of one that would fall outside of the 

20  significant purpose, assuming Congress meant -- 

21            SOLICITOR GENERAL OLSON: Well, I have trouble with 

22  that, Judge Silberman -- 

23            JUDGE SILBERMAN: So do I. That's why I'm asking. 

24            SOLICITOR GENERAL OLSON: That's right. That's why 

25 I think a  construction of the statute that requires that box 


[Page 96]
 
1 is very difficult because the definition, even assuming what 

2  you're talking about to the extent we're talking about a 

3  United States person is that information necessary to 

4  protect -- necessary to the ability of the United States to 

5  protect against international terrorism. 

6             Now, if that information in a particular case, 

7  whether it involved a wife beater or a child pornographer or 

8  someone who cheated on their taxes 15 years before gave the 

9  President or those acting in his behalf the ability of 

10  walking in and  taking that person off the street because of 

11  the other activities of the person, would that be necessary 

12  to protect against the attack? It might be. 

13             So that's why it's difficult for me to come up with 

14  an illustration that accepts the premise which I think is 

15  such a unworkable premise, especially if one considers what 

16  the statute meant in the first  instance, what the language of 

17  the statute clearly means, and the desire of Congress to make 

18  it easier, certainly not more difficult, for the President to 

19  do the job which is the fundamental job, that is to say, to 

20  protect against the terrorists. 

21             JUDGE SILBERMAN: You can't think of any 

22  hypothetical? 

23             SOLICITOR GENERAL OLSON: What we will do, if we 

24  can collectively come up with something that will more -- 

25             JUDGE SILBERMAN: In your brief you suggested only 


[Page 97]

1   that the face of the application indicated something was 

2   wrong. I don't quite understand what would be wrong though. 

3   The face of the application, suppose the face of the 

4   application indicated a desire to use foreign surveillance to 

5   determine strictly a domestic crime, that would be -- but 

6   then you wouldn't have an agent, you wouldn't have an agency. 

7   You must have some substantive requirement here if 

8   significant purpose is given its literal meaning, you must 

9   have some logic to the interpretation of that section which 

10   falls outside of the interpretation of an agent of a foreign 

11   power. 

12             SOLICITOR GENERAL OLSON: And I suppose if the 

13   application itself revealed that there was a purpose to take 

14   personal advantage of someone who might be the subject of an 

15   investigation, to blackmail that person, or if that person 

16   had a domestic relationship and that person was seeing 

17   another person's spouse or something like that, if that would 

18   be the test on the face of things. 

19             In other words, I'm suggesting that the standard is 

20   relatively high for the very reason that it's difficult for 

21   the judiciary to evaluate and secondguess what a high level 

22   executive branch person attempting to fight terrorism is 

23   attempting to do. 

24             I thought the description of the process that Mr. 

25   Baker gave is quite illuminating because it requires -- not 


[Page 98]

1 only does the statute require, but the manner in which the 

2  statute is being implemented aside from these dysfunctional 

3  aspects of it, puts responsibility squarely on top-level 

4  Governmental officials to sign their name. 

5            JUDGE SILBERMAN: I'll try one more time and I'll 

6  give up. What other purpose is contemplated besides the 

7  purpose of obtaining foreign intelligence information? By 

8  stating significant purpose must to be obtain foreign 

9  intelligence information necessarily implies there's another 

10  kind of purpose. 

11            SOLICITOR GENERAL OLSON: It could be revenge, it 

12  could be extortion. It could be vindictiveness. 

13            JUDGE SILBERMAN: Under your alternative 

14  argument -- your alternative argument is you can have a 

15  primary purpose of seeking criminal prosecution. That's your 

16  alternative argument in the brief. Nonetheless, a 

17  significant purpose is to obtain foreign intelligence 

18  information. That's the alternative argument in the brief in 

19  which you accept the bifurcation. 

20            SOLICITOR GENERAL OLSON: For the purposes of 

21  dealing with it. 

22            JUDGE SILBERMAN: Exactly. That's my problem. So 

23  that if you had then a total purpose of criminal prosecution, 

24  does that mean you violate (B)? 

25            SOLICITOR. GENERAL OLSON: I don't think so, Judge 


[Page 99] 

1 Silberman, for the reason that I explained before. 

2            JUDGE SILBERMAN: We're going around in circles. 

3            SOLICITOR GENERAL OLSON: We're going around in 

4  circles but we're going around in circles because the real 

5  world, the use of that information even if it is used for a 

6  prosecution, it's impossible as I sit here for me in good 

7  faith to imagine a situation and I think it would be 

8  irresponsible for me to do so, imagine a situation where that 

9  might not also be useful in something that comes out in 

10   another FISA situation that might have come out six months 

11   ago, given that we're dealing with an agent of a foreign 

12   Government, to preclude that, that's something that won't 

13   have importance to the President in a purely intelligence 

14   context? 

15             JUDGE GUY: Don't you use the Timothy McVeigh 

16   situation as one that wouldn't allow you to get a FISA 

17   warrant? 

18             SOLICITOR GENERAL OLSON: But that's not 

19   necessarily for the purpose of being law enforcement. It's 

20   because it's purely domestic. To the extent that answers 

21   Judge Silberman's question, I was speaking of the law 

22   enforcement dichotomy as opposed to the domestic dichotomy 

23   which we do acknowledge exists. 

24             JUDGE GUY: Anything else? 

25             JUDGE LEAVY: No. 


[Page 100] 

1             JUDGE GUY: Let me just ask one last question or 

2  perhaps two questions. One, is there a third area that 

3  doesn't concern us that still is ongoing? For example, if 

4  the CIA wanted to search the apartment of an Iraqi diplomat 

5  stationed in Brazil, I take it they wouldn't go before the 

6  FISA Court to get an application. 

7            MR. KRIS: They would not. 

8            JUDGE GUY: That's the implication of U.S. person 

9  to some degree as one of the very significant portions of the 

10   FISA statute, is it not? 

11             SOLICITOR GENERAL OLSON: Yes. That's why I said 

12   at the very beginning I was focusing on that because I know 

13   this Court is concerned with the application of the statute 

14   as far as U.S. persons are concerned which is (b)(2) rather 

15   than (b)(1) which relates to ny person other than a United 

16   States person. 

17             JUDGE GUY: Then let me close, and -- unless my 

18   question triggers something on behalf of my colleagues. This 

19   is a strange proceeding because it is not adversarial. It is 

20   ex parte. And if one were to just read the transcript of 

21   this hearing today one might think that the adversary, if 

22   there was one, is what the insiders refer to as the FISC, the 

23   lower body in this matter. And I want to say, first of all, 

24   that to the degree that our questions have contributed to 

25   that, they're intended for the purpose of gathering 


[Page 101]

1 information and that's all. But in that same vein, I used to 

2  think as a District Judge that sometimes when a case of mine 

3  went to the Court of Appeals, that I'd love to be there as 

4  amicus and also be able to argue and in that vein putting 

5  just for the purposes of argument sort of an advocate for the 

6  FISA Court, if they were here today I suspect that they might 

7  say something like the difficulty with the change in the 

8  statute going to significant purpose is that the standard is 

9  no longer quantifiable in any reasonable means, that any fool 

10  who has done this for years can prepare an application that 

11  would set forth prima facie material to indicate that there's 

12  a significant purpose because significant purpose, like the 

13  substantial evidence standard, doesn't foreclose the fact 

14  that there is substantial evidence on the other side. 

15  Similarly, the fact that a significant purpose may be the 

16  gathering of foreign intelligence doesn't foreclose the fact 

17  that a significant purpose might also be a criminal 

18  prosecution. And given the fact, I'm now speaking, as you 

19  know, the FISC representative, given the fact that we have 

20  this situation and given the act that we see our charge 

21  partially to be to protect U.S. persons, to extend to them 

22  the same protections they would have under Title III and the 

23  Fourth Amendment except insofar as those protections would 

24  intrude on the foreign intelligence gathering ability, we 

25  feel that these procedures that we've put in place to the 


[Page 102]

1 best of our ability are the only things that we can think of 

2 to guarantee that there will still be some meaningful 

3  requirement that this really be a foreign intelligence 

4  matter, significant though it may be. 

5           SOLICITOR GENERAL OLSON: May I address that in 

6  this way? There are several protections and the Congress was 

7  aware of them. One, by making the Attorney General and a 

8  high level official, either a national security advisor level 

9  or someone who otherwise is appointed by the President, 

10   confirmed by the Senate, to sign their name. That is one 

11   assurance. Another one is that to the extent that this 

12   information is going to be used at all in a criminal 

13   procedure, the Attorney General must approve that. Number 

14   three, notification is appropriate at that point to an 

15   Article III Judge who is in charge of that. And there may be 

16   suppression motions and legitimate -- and proceedings with 

17   respect to the application of those individual rights under 

18   those circumstances, and then there can be a review up the 

19   line from the District Court's decision. But because they're 

20   dealing with national security and international terrorism, 

21   the Congress approved executive authority in an area where it 

22   is even without Congressional approval, at its zenith. And 

23   this process here by which the Court is going to regularly 

24   receive these applications, it's going to see how they're 

25   done, it's going to see the people that are applying them and 


[Page 103]

1  is going to see the Attorney General's signature, we submit 

2  both of them from a constitutional standpoint and from a 

3  statutory standpoint, that those protections exist. 

4            I would also say that with respect to this Court, 

5  we have great respect for the Judges on this Court. We 

6  respectfully disagree with where we have come and we think 

7  it's a very serious, very serious problem that the Executive 

8  is dealing with at this juncture to where we have come, but 

9  certainly the Court got to it because it was being 

10  conscientious and serious about both its responsibilities to 

11  the country and also for citizens, United States persons, who 

12  were the subject of surveillance. 

13            So I think that this process has been up to this 

14  point very very effective, and to the extent that those -- 

15  this may be an ex-parte procedure, but the Court and the 

16  members of this Court are asking very very difficult, hard 

17  questions, the same kind of questions I think that someone 

18  who was an adversary, if there were one, would be asking the 

19  Court to ask. 

20            JUDGE GUY: There being nothing further, the Court 

21  would thank all of the persons who appeared today. They've 

22  been very helpful. And we assure you that we recognize that 

23  there is some time urgency to all of this, and within the 

24  constraints of preparing something meaningful we will do our 

25  best to get a decision to you as soon as possible. 


[Page 104] 

1            SOLICITOR GENERAL OLSON: Thank you. 

2            JUDGE GUY: With that we're in recess on this 

3  matter. 

4            SOLICITOR GENERAL OLSON: Thank you. 

5            JUDGE GUY: You may be excused. 

6            SOLICITOR GENERAL OLSON: Thank you. 

7            (Proceedings concluded at 11:55 a.m.) 

8                 CERTIFICATE OF OFFICIAL REPORTER 

9            I hereby certify that the foregoing is a true and 

10   accurate transcript to the best of my ability. 

			[signed:] Santa Zizzo
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