S. Hrg. 106-993
COUNTERINTELLIGENCE REFORM ACT OF 2000
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
S. 2089
__________
MARCH 7, 2000
__________
Serial No. J-106-69
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce Cohen, Minority Chief Counsel
------
Subcommittee on Administrative Oversight and the Courts
CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York
Kolan Davis, Chief Counsel
Matt Tanielian, Minority Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 17
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Freeh, Hon. Louis J., Director, Federal Bureau of Investigation,
Washington, DC................................................. 8
Townsend, Frances Fragos, Counsel for Intelligence Policy, Office
of Intelligence Policy and Review, U.S. Department of Justice,
Washington, DC................................................. 24
SUBMISSIONS FOR THE RECORD
McArthur, Dobie, Staff Assistant to Senator Specter, memorandum.. 2
COUNTERINTELLIGENCE REFORM ACT OF 2000
----------
TUESDAY, MARCH 7, 2000
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter
presiding.
Also present: Senator Thurmond.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. The hour of 9:30 having arrived, the
Senate Judiciary Subcommittee on Administrative Oversight and
the Courts will now proceed.
We have two witnesses this morning, the distinguished
Director of the FBI, the Hon. Louis Freeh, and ranking
Department of Justice official with the Attorney General, Ms.
Frances Fragos Townsend. Director Freeh has another commitment
this morning to appear before the appropriations subcommittee
which funds the FBI which begins at 10 a.m., and we have made
arrangements with the chairman there for him to be a little bit
late, with Senator Judd Gregg, but we want to proceed now to
have as much time as possible on Director Freeh's time here.
This hearing involves Senate bill 2089, which is designed
to correct certain deficiencies in the Foreign Intelligence
Surveillance Act. This bill was introduced on February 24 and
has been cosponsored by every member of the subcommittee, by
Senator Grassley, Senator Thurmond, Senator Sessions, Senator
Torricelli, Senator Feingold, Senator Schumer, and also by
Senator Biden, who was one of the original authors of the
Foreign Intelligence Surveillance Act back in 1978, and also by
Senator Helms.
The subcommittee has proceeded with an interim report
because of the very important issues raised by the
investigation of Dr. Wen Ho Lee, and we have submitted this
legislation at an early date to try to correct some of the
deficiencies, so-called loopholes in that bill.
Dr. Lee was indicted on December 10 of last year on 59
counts which alleged that he downloaded and removed from the
Los Alamos National Laboratory classified nuclear weapons
design and testing files. In the bail hearing for Dr. Lee,
which was held on December 13, the seriousness of this matter
was characterized by Dr. Stephen Younger, Assistant Laboratory
Director for Nuclear Weapons at Los Alamos, as follows, ``These
codes and their associated databases and the input file,
combined with someone who knew how to use them, could, in my
opinion, in the wrong hands, change the global strategic
balance.'' It is hard to find any assessment which is more
onerous or more threatening than, ``change the global strategic
balance.''
Dr. Younger further testified about the codes, ``They
enable the possessor to design the only objects that could
result in the military defeat of America's conventional forces.
They represent the gravest possible security risk to the
supreme national interest.'' And, again, it is hard to find a
characterization more serious than, ``military defeat of
America's conventional forces,'' or ``the gravest possible
security risk to the supreme national interest.''
There has been prepared a lengthy report, running
approximately 65 pages, and it is my expectation that before
the end of the day we will be able to release that report. I
have had some comments from some of the committee members
expressing some concern about that and I want to be sure as a
matter of super-caution that we consider whatever anybody on
the subcommittee has to say, or anybody else for that matter.
Yesterday, we received a letter from Robert Raben,
Assistant Attorney General, Office of Legislative Affairs,
Department of Justice, saying, in part, ``The Department's
legal standing to object to the release of the draft report
rests solely on classification grounds, and we do not so object
because the draft of the report that we reviewed does not
divulge information that has been classified by the Department
or the Federal Bureau of Investigation.''
Mr. Raben goes on to raise a potential concern that the
Central Intelligence Agency may have some concern about
information that it has classified. But that has been reviewed
in detail with the Central Intelligence Agency as well, and
also with the Department of Energy.
Without objection, I will make a part of the record a memo
from Staff Assistant Dobie McArthur, who has done such
extraordinary and outstanding work on this report, which
specifies the clearances which have been obtained from CIA and
DoD, and summarizes the entire matter as to appropriateness for
release of the report.
[The memo referred to follows:]
Memorandum
To: Senator Specter
From: Dobie McArthur
Date: March 7, 2000
Re: Update on Classification Review of Interim Report
This memo summarizes the steps that have been taken to ensure that
the interim report of the subcommittee Task Force does not contain any
classified material.
The report was written based on unclassified information, with
particular emphasis on the Attorney General's June 8, 1999 testimony
before the Judiciary Committee; the information from the June 9, 1999
testimony before the Governmental Affairs Committee; the White House
press package released in response to the Cox Committee Report; the
Government's filings in the Wen Ho Lee case; and the Cox Committee
Report itself.
On January 20, 2000 I shared a copy of an earlier draft with
Senator Torricelli's staff, and then sent a copy to the FBI, the CIA
and the DOE at your direction. After your meeting with Senator
Torricelli on January 27, a newer version of the report that contained
some of the revisions suggested by Senator Torricelli's staff was sent
to the DOJ. That is the draft about which Assistant Attorney General
Robert Raben wrote his letter to Senator Hatch on March 6, 2000.
Although Mr. Raben did not directly address the issue of
classification, when you asked him on the phone to state more clearly
whether the Department of Justice had classification concerns or any
objection to the public release of the report he later did so in three
ways. First, I spoke with him after your call and he said that ``the
only legal grounds would be on classification, and we have no grounds
to object on classification.'' He made it clear that the statement
reflected the position of the Department of Justice, including the FBI,
a fact which was reaffirmed when you met with Director Freeh this
afternoon at FBI Headquarters. While we were at the FBI, Mr. Raben left
a voice mail (which I have preserved), reiterating the same point, but
adding that he had not spoken to the CIA and thought they might have
some concerns. Later in the day, Mr. Raben sent another letter, this
time to you, in which he explicitly stated that the Department of
Justice had no classification concerns with the report, but he again
noted that the CIA might have some.
I met with the CIA on February 7, 2000 and have addressed every
issue they raised in the meeting. Specifically, I met with Mr. Robert
Walpole, National Intelligence Officer for Strategic and Nuclear
Programs. The meeting took place at CIA Headquarters, and was attended
by Mr. Jack Dempsey, from CIA Congressional Affairs, and a
representative from the CIA's Directorate of Intelligence, and one from
the Directorate of Operations. The CIA raised several concerns about
matters that had come from news accounts. As I had never seen the
underlying CIA documents, I agreed to accept their assessment that,
although the information was already in the public domain and had, in
fact, been placed there by the White House, it should not be in the
report. Every issue that was raised by the CIA in that meeting was
addressed by revisions. Although asked to provide any additional
comments they had about the report in writing, they have said nothing
since February 7.
It should be noted that under Section 6 of Executive Order 12958
(April 17, 1995) which governs classified national security
information, the Attorney General upon request by the head of an agency
or the Director of the information Security Oversight Office, shall
render an interpretation of this order with respect to any question
arising in the course of its administration. If the CIA had any
concerns, they could have raised them at a number of points during
which this report was being reviewed, including directly with the
Attorney General before Mr. Raben sent his letter stating that DOJ had
no classification concerns.
The DOE has also reviewed the report because DOE information is
handled under separate procedures laid out in the Atomic Energy Act of
1954, as amended. On March 2, 2000 I met with Dr. Roger Heusser and Dr.
Andy Weston-Dawkes. As a result of the meeting, DOE certified that the
report does not contain any DOE classified data or any Restricted Data.
Mr. Weston-Dawkes left a copy of the report on which he indicated that
it contained no DOE classified material and no Restricted Data. He
signed the front page and initialed each page. As it was printed out
using the printer in room S407, the report was only 58 pages due to
differences in formatting, but the content is substantively identical
to the attached version of the report, which runs the full 65 pages you
have seen previously. After Mr. Weston-Dawkes signed the report, I
corrected a spelling error and removed the word DRAFT from the top of
each page, but made no substantive changes.
In sum, every agency with classification responsibility for issues
raised by the report has had possession of the report for more than a
month. Every issue that has been identified by an agency has been
addressed, so there are no outstanding concerns from any agency.
Senator Specter. The legislation which we are considering
today to amend the Foreign Intelligence Surveillance Act deals
with only a limited part of the investigation of Dr. Wen Ho
Lee, and it will pick up the sequence at the application for
the warrant under FISA, the abbreviation for Foreign
Intelligence Surveillance Act.
The subcommittee had scheduled hearings on Dr. Wen Ho Lee's
matter in December, and at the request of Director Freeh we
have postponed those hearings. Director Freeh met with the
ranking member, Senator Torricelli, and myself on December 14
and we agreed that we would not proceed with the hearing on the
factual information.
I did discuss the matter with Director Freeh as to
proceeding on the legislation several weeks ago, and again we
met at length yesterday afternoon to be sure that this hearing
on the legislation would not in any way interfere with Dr.
Lee's trial. It is a very important matter for both of the
parties, the United States of America, the prosecuting party,
and Dr. Wen Ho Lee, the defending party, that there be no
prejudice to that proceeding in any way, shape or form, and
this subcommittee will honor that objective. I discussed with
Director Freeh--and we will put it on the record formally when
he testifies--that the disclosure of the report would not be in
any way harmful to security matters or to that trial.
The essential facts which we are dealing with here,
focusing again on the FISA application, involves the request by
the FBI in June of 1997, which in regular procedure goes to the
Department of Justice for submission to a court, to authorize a
warrant which would permit surveillance of someone under the
Foreign Intelligence Surveillance Act. That request was
rejected by the Department of Justice on August 12, 1997, at
which point Director Freeh instructed top-level Assistant
Director John Lewis to confer personally with Attorney General
Reno, which Mr. Lewis did.
Attorney General Reno then assigned the matter to a
subordinate, Dan Seikaly, who was not experienced in these
matters. He, in turn, rejected it. Attorney General Reno did
not check on the matter after the delegation, and one of the
cardinal points of the proposed legislation is to provide that
when the Director of the FBI makes a personal request to the
Attorney General that the Attorney General must rule on it
personally, and that in order to be sure that the request has
been made by the Director that it be made in writing, and that
if the Attorney General rejects the request that the Attorney
General state why, in writing, the request has been rejected,
to give an opportunity, a road map, so to speak, to the FBI to
find out what to do.
The Department of Energy entered the matter by giving a
polygraph test to Dr. Lee on December 23, and the Department of
Energy announced that he had passed the polygraph when, in
fact, he had failed. The Secretary of Energy announced on
national television that he had failed, which threw the
investigation off.
This legislation provides that handling of the matter will
be limited to the Federal Bureau of Investigation and that only
the Federal Bureau of Investigation will be authorized to
handle matters like the polygraph, or to give authority if the
FBI chooses to do so.
The legislation further provides that the concept of
``currently engaged'' will not required an elevated standard as
to imminence as, for example, on seizure of drugs, but will be
taken by the totality of circumstances. The statute further
provides that if an individual has been an asset of a Federal
agency that that will be disclosed to the judge on the FISA
application.
That, in essence, is a very brief overview of the statute.
I might quote Senator Torricelli, who had expected to be in
town today but is not in town, I am advised. On his statement
cosponsoring the legislation, Senator Torricelli said this, on
February 24, at page S-801 of the Congressional Record, ``There
was a startling, almost unbelievable failure of coordination
and communication between the Department of Justice, the FBI
and the Department of Energy in dealing with this matter. And
only through that lack of coordination was an allegation of
possible espionage able to lead to 17 years of continued access
and the possibility that this information was compromised.''
Senator Leahy has submitted a statement for the record and
we will include that statement in the record at this point.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator from the
State of Vermont
I have joined as a cosponsor of the Counterintelligence Reform Act
of 2000, S. 2089, and look forward to working with my colleagues,
Senators Grassley, Specter, and Torricelli, on making any improvements
and refinements to the legislation which may become apparent as we hear
from expert witnesses both today and at future hearings. This is an
important issue with serious implications for the careful balance we
have struck between the need to protect our national security and our
obligation to defend the constitutional rights of American citizens.
This legislation was crafted in response to perceived problems in
the investigation of nuclear physicist Wen Ho Lee. Our review of that
matter is far from complete and, in view of the pending criminal case,
must be put in abeyance to avoid any prejudice to the parties or
suggest political influence on the proceedings. Based on the
Subcommittee's review to date, however, I do not share the views of
some of my colleagues who have harshly criticized the Justice
Department's handling of this matter. Notwithstanding my disagreement,
as explained below, with those criticisms of the Justice Department, I
support this legislation as a constructive step towards improving the
coordination and effectiveness of our counterintelligence efforts.
Senators Grassley, Specter, and Torricelli, have provided constructive
leadership in crafting this bill and bringing together Members who may
disagree about the conclusions to be drawn from the underlying facts of
the Wen Ho Lee investigation.
My view of the Justice Department's handling of the Wen Ho Lee
investigation differs in at least three significant respects from those
of the Department's critics in the Senate.
First, the Justice Department's demand in the summer of 1997 for
additional investigative work by the FBI has been misconstrued as a
``rejection'' of a FISA application for electronic surveillance. FBI
officials first consulted attorneys at DOJ on June 30, 1997, about
receiving authorization to conduct FISA surveillance against Lee.\1\
The request was assigned to a line attorney in the Office of
Intelligence and Policy Review (OIPR), who, appreciating the
seriousness of the matter, drafted an application for the court over
the holiday weekend.\2\ A supervisor in the OIPR unit then reviewed the
draft and decided that further work by the FBI would be needed ``to
complete the application and send it forward.'' \3\ further discussions
then ensued and two additional draft applications were prepared.
In August 1997, FBI agents met again with OIPR attorneys about the
FISA request. the OIPR supervisor testified at a Governmental Affairs
Committee hearing on June 9, 1999 that ``[f]ollowing that meeting, the
case was put back to the Bureau to further the investigation in order
to flesh out and eliminate some of the inconsistencies, to flesh out
some of the things that had not been done.'' \4\ He testified that the
primary concern with the FBI investigation ``had to do with the fact
that the DOE and Bureau had [multiple] suspects, and only two were
investigated . . . That is the principal flaw which ha[d] repercussions
like dominoes throughout all of the other probable cause.'' \5\
This was not a ``rejection.'' The OIPR attorneys expected the FBI
to develop their case against Lee further and to return with additional
information. This is normal, as most prosecutors know. Working with
agents on investigations is a dynamic process, that regularly involves
prosecutors pushing agents to get additional information and facts to
bolster the strength of a case. Yet, nearly a year and a half passed
before the attorneys at OIPR were again contacted by the FBI about
Lee.\6\
The report issued by the Governmental Affairs Committee on this
issue concludes that although the OIPR attorneys did not view their
request for additional investigation as a ``denial'' of the FISA
request, the FBI ``took it as such,'' \7\ Notwithstanding or even
mentioning these apparently differing views as to what had transpired,
some have criticized the Justice Department for rejecting the FISA
application in 1997. It is far from clear that an rejection took place,
and I credit the perspective of the OIPR attorneys that their request
to the FBI for additional investigative work was made in an effort to
complete--not kill--the FISA application.
Second, the Justice Department correctly concluded that the FBI's
initial FISA application failed to establish probable cause. Indeed,
even the chief of the FBI's National Security Division, John Lewis, who
worked on the FISA application, has admitted that he turned in the
application earlier than anticipated and without as much supporting
information as he would have liked.\8\
Determining whether probable cause exists is always a matter of
judgment and experience, with important individual rights, public
safety and law enforcement interests at stake if a mistake is made.
From the outset, prosecutors making such a determination must keep a
close eye on the applicable legal standard.
Pursuant to the terms of the FISA statute, intelligence
surveillance against a United States person may only be authorized upon
a showing that there is probable cause to believe: (1) that the
targeted United States person is an agent of a foreign power; and (2)
that each of the facilities or places to be surveilled is being used,
or about to be used by that target. 50 U.S.C. Sec. Sec. 1801(b)(2),
1804(a)(4). With regard to the first prong, the statute defines several
ways in which a United States person can be shown to be an agent of a
foreign power. Most relevant here, a United States person is considered
an agent of a foreign power if the person ``knowingly engages in
clandestine intelligence gathering activities, for or on behalf of a
foreign power, which activities involve or may involve a violation of
the criminal statutes of the United States.'' 50 U.S.C. 1801(b)(2)(A).
Without dissecting all of the allegations against Lee here, there
are several issues that undermined the FBI's evidence that Lee was an
``agent of a foreign power'' and, in 1997, engaged in ``clandestine
intelligence gathering activities.'' In the letterhead memorandum by
which the FBI first sought DOJ approval for the FISA warrant, the FBI
reported that an administrative inquiry conducted by DOE and FBI
investigators had identified Wen Ho Lee as a suspect in the loss of
information relating to the W-88 nuclear warhead.\9\ Most critically,
however, the FBI indicated that Lee was one of a group of laboratory
employees who: (1) had access to W-88 information; (2) had visited
China in the relevant time period; and (3) had contact with visiting
Chinese delegations.\10\
The problem with the FBI's reliance on this administrative inquiry
and corresponding narrow focus on Lee and his wife as suspects was that
the FBI ``did nothing to follow up on the others.'' \11\ The Attorney
General testified at the June 8, 1999 Judiciary Committee hearing that
``the elimination of other logical suspects, having the same access and
opportunity, did not occur.'' \12\ Similarly, the OIPR supervisor who
testified at the GAC hearing confirmed that ``the DOE and Bureau had
[multiple] suspects, and only two [meaning Lee and his wife] were
investigated.'' \13\ According to him, as noted above, ``[t]hat is the
principal flaw which ha[d] repercussions like dominoes throughout all
of the other probable cause.'' \14\ Quite simply, the failure of the
FBI to eliminate, or even investigate, the other potential suspects
identified by the DOE administrative inquiry undermined their case for
probable cause.
Indeed, this failure to investigate all potential leads identified
in the DOE administrative inquiry has prompted the FBI to conduct a
thorough re-examination, which is currently underway, of the factual
assumptions and investigative conclusions of that initial inquiry.
The other evidence that the FBI had gathered about Lee was stale,
inconclusive or speculative, at best and certainly did not tie him to
the loss of the W-88 nuclear warhead information. For example, the FBI
proffered evidence pertaining to a fifteen-year-old contract between
Lee and Taiwanese officials. The FBI's earlier investigation boiled
down to this: after the FBI learned in 1983 that Lee had been in
contact with a scientist at another nuclear laboratory who was under
investigation for espionage, Lee was questioned. He explained,
eventually, that he had contacted this scientist because he had thought
the scientist had been in trouble for doing similar unclassified
consulting work that Lee volunteered that he had been doing for
Taiwan.\15\ To confirm his veracity, the FBI gave Lee a polygraph
examination in January 1984, and he passed.\16\ This polygraph included
questions as to whether he had ever given classified information to any
foreign government.\17\ Shortly thereafter, the FBI closed its
investigation into Lee and this incident.
Even if viewed as suspicious, Lee's contacts fifteen years earlier
with Taiwanese officials did not give rise to probable cause to believe
that in 1997 he was currently engaged in intelligence gathering for
China.
As a further example, the FBI also relied on evidence that during a
trip by Lee to Hong Kong in 1992, there was an unexplained charge
incurred by Lee that the FBI speculated could be consistent with Lee
having taken a side trip to Beijing.\18\ As Attorney General Reno
testified at the hearing, the fact that Lee incurred an unexplained
travel charge in Hong Kong did not standing alone support an inference
that he went to Beijing. It therefore did nothing to support the FBI's
claim that Lee was an agent for China.
The OIPR attorneys who pushed the FBI for additional investigative
work to bolster the FISA application for electronic surveillance of Wen
Ho Lee were right--the evidence of probable cause proffered by the FBI
was simply insufficient for the warrant.
Third, the Justice Department was right not to forward a flawed and
insufficient FISA application to the FISA court. Some have suggested
that the Lee FISA application should have been forwarded to the court
even though the Attorney General (through her attorneys) did not
believe that was probable cause. To have done so would have violated
the law.
The FISA statute specifically states that ``[e]ach application
shall require the approval of the Attorney General based upon [her]
finding that it satisfies the criteria and requirements. . . .'' 50
U.S.C. Sec. 1804(a). The Attorney General is statutorily required to
find that the various requirements of the FISA statute have been met
before approving an application and submitting it to the court.
As a former prosecutor, I know that this screening function is very
important. Every day we rely on the sound judgment of experienced
prosecutors. They help protect against encroachments on our civil
liberties and constitutional rights. Any claim that the Attorney
General should submit a FISA application to the court when in her view
the statutory requirements have not been satisfied undermines
completely the FISA safeguards deliberately included in the statute in
the first place.
I appreciate that those who disagree with me that the evidence for
the Lee FISA application was insufficient to meet the FISA standard for
surveillance against a United States person may urge that this standard
be weakened. This would be wrong.
The handling of the Wen Ho Lee FISA application does not suggest a
flaw in the definition of probable cause in the FISA statute. Instead,
it is an example of how the probable cause standard is applied and
demonstrates that effective and complete investigative work is and
should be required before extremely invasive surveillance techniques
will be authorized against a United States person. The experienced
Justice Department prosecutors who reviewed the Lee FISA application
understood the law correctly and applied it effectively. They insisted
that the FBI do its job of investigating and uncovering evidence
sufficient to meet the governing legal standard.
The Counterintelligence Reform Act of 2000 correctly avoids
changing this governing probable cause standard. Instead, the bill
simply makes clear what is already the case--that a judge can consider
evidence of past activities if they are relevant to a finding that the
target currently ``engages'' in suspicious behavior. Indeed, the
problem in the Lee case was not any failure to consider evidence of
past acts. Rather, it was that the evidence of past acts presented
regarding, for instance Lee's connections to Taiwan, did not
persuasively bear on whether Lee, in 1997, was engaging in clandestine
intelligence gathering activities for another country, China.
Finally, some reforms are needed. The review of the Lee matter so
far suggests that internal procedures within the FBI, and between the
FBI and the Office of Intelligence Policy and Review, to ensure that
follow-up investigation is done to develop probable cause do not always
work. I share the concern expressed by some of my colleagues that it
took the FBI an inordinately long time to relay the Justice
Department's request for further investigation and to then follow up.
The FBI and the OIPR section within DOJ have already taken
important steps to ensure better communication, coordination and
follow-up investigation in counterintelligence investigations. The FBI
announced on November 11, 1999, that it has reorganized its
intelligence-related divisions to facilitate the sharing of appropriate
information and to coordinate international activities, the gathering
of its own intelligence and its work with the counter-espionage
agencies of other nations.
In addition, I understand that OIPR and the FBI are working to
implement a policy under which OIPR attorneys will work directly with
FBI field offices to develop probable cause and will maintain
relationships with investigating agents. This should ensure better and
more direct communication between the attorneys drafting the FISA
warrants and the agents conducting the investigation and avoid
information bottlenecks that apparently can occur when FBI Headquarters
stands in the way of such direct information flow. I encourage the
development of such a policy. In addition, the Attorney General advised
us at the June 8, 1999 hearing that she has instituted new procedures
within DOJ to ensure that she is personally advised if a FISA
application is denied or if there is disagreement with the FBI.\19\
Notwithstanding all of these wise changes, the FISA legislation
will require formal coordination between the Attorney General and the
Director of the FBI, or other head of agency, in those rare cases where
disagreements like those in the Lee case arise. I am confident that the
Directors of the FBI and CIA and the Secretaries of Defense and State,
and the Attorney General, are capable of communicating directly on
matters when they so choose, even without legislation. I am concerned
that certain of these new requirements will be unduly burdensome on our
high-ranking officials due to the clauses that prevent the delegation
of certain duties.
For instance, the bill requires that upon the written request of
the Director of the FBI or other head of agency, the Attorney General
``shall personally review'' a FISA application. If, upon this review,
the Attorney General declines to approve the application, she must
personally provide written notice to the head of agency and ``set forth
the modifications, if any, of the application that are necessary in
order for the Attorney General to approve the application.'' The head
of agency then has the option of adopting the proposed modifications,
but should he choose to do so he must ``supervise the making of any
modification'' personally.
I appreciate that these provisions of this bill are simply designed
to ensure that our highest ranking officials are involved when disputes
arise over the adequacy of a FISA application. However, we should
consider, as we hold hearings on the bill, whether imposing statutory
requirements personally on the Attorney General and others is the way
to go.
I also support provisions in this bill that require information
sharing and consultation between intelligence agencies, so that
counterintelligence investigations will be coordinated more effectively
in the future. In an area of such national importance, it is critical
that our law enforcement and intelligence agencies work together as
efficiently and cooperatively as possible. Certain provisions of this
bill will facilitate this result.
In addition, Section 5 of the bill would require the adoption of
regulations to govern when and under what circumstances information
secured pursuant to FISA authority ``shall be disclosed for law
enforcement purposes.'' I welcome attention to this important matter,
since OIPR attorneys had concerns in April 1999 about the FBI efforts
to us the FISA secret search and surveillance procedures as a proxy for
criminal search authority.\20\
Whatever our views about who is responsible for the
miscommunications and missteps that marred the Wen Ho Lee
investigation, the bill before us today stands on its own merits and I
commend Senators Grassley, Specter, and Torricelli for their leadership
and hard work in crafting this legislation.
endnotes
\1\ August 5, 1999 Statement of Senate Governmental Affairs
Committee Chairman Fred Thompson and Ranking Member Joseph Lieberman
(hereinafter ``GAC report'') at page 5.
\2\ Id.
\3\ Id.
\4\ Id. at 6.
\5\ Id.. at 8.
\6\ Id. at 6.
\7\ Id. at 9.
\8\ Id.
\9\ Redacted transcript of Attorney General Janet Reno's June 8,
1999 testimony before Senate Judiciary Committee (hereinafter ``Tr.'')
at pages 11-12.
\10\ Id. at 11-13.
\11\ Id. at 13.
\12\ Id.
\13\ GAC report at page 8.
\14\ Id.
\15\ Tr. at 15.
\16\ Id. at 15-16.
\17\ Id.
\18\ Id. at 113-14.
\19\ Id. at 41, 18.
\20\ GAC report at page 12.
Senator Specter. Director Freeh, thank you very much for
your availability today and for your cooperation. Your full
statement will be made a part of the record, and we are pleased
to turn the floor over to you.
STATEMENT OF HON. LOUIS J. FREEH, DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION, WASHINGTON, DC
Mr. Freeh. Thank you very much, Mr. Chairman, and as always
it is a pleasure to be before you. In the almost seven years
now that we have worked on these matters and other matters, it
has really been a privilege to work with you. I can't think of
anybody more uniquely prepared to undertake not only the
jurisdiction of your current subcommittee assignment but this
particular matter with respect to proposed amendments to the
FISA statute, a former chairman of the Intelligence Committee
and a former prosecutor, being able to balance both the
national security equities with the very important trial
equities.
I very much appreciate, as does the Attorney General, your
consideration and the committee's consideration of the
sensitivity of the pending criminal matter which, as you so
correctly point out, affects the interests not only of the
United States but Dr. Lee. And we very, very much appreciate
your addressing that matter as well as you have.
I thought I would just comment very, very briefly about the
legislation, and I will be delighted then to answer any of your
questions.
The FISA statute, which has been in use now for over 20
years, is an essential tool--in fact, a critical tool--in the
ability of the United States to protect national security
against not just agents of foreign powers who would commit
espionage, but terrorists and other groups as characterized in
the legislation.
The appropriate growth of the use of this tool, under full
court supervision, has been fairly dramatic. In 1994, there
were 597 FISA court orders signed; in 1999, approximately 830.
This reflects not only a broadening of counterintelligence
activities, but also counterterrorism activities. And the
statute, in my view, has been used very prudently. It has been
used consistent with the intent of Congress, and I believe that
it has been properly applied and continues to be properly
applied as a very potent, court-regulated tool with respect to
fighting terrorism and espionage.
I believe that the statute has a flexible standard which
permits the court to take into consideration the totality of
circumstances involved in a particular application, and that
that includes consideration of past activity relating to either
espionage or terrorism. In some past cases, I have had concerns
that the statute was being applied too restrictively. But on
the whole, I believe that the current application of the FISA
statute is consistent with the intent of Congress.
The Attorney General and I, as you know, both personally
review and give our attention to the FISA process. In fact,
each application to the court is reviewed and signed by the
Attorney General and myself.
I am also convinced by recent events that the statute is
being applied correctly. Over the millennial period, there were
an unprecedented number of FISA court applications made by the
Department of Justice. And having been directly involved along
with the Attorney General and Ms. Fragos in that process, I can
assure you, Mr. Chairman, that that was deliberative process,
as well as a very effective process, addressed solely to the
protection of our country, Americans both here as well as
overseas, and that there was exceptionally close cooperation
between the FBI and the Department of Justice, including the
joint drafting of applications, the amendment of applications,
and ensuring that the relevant information, facts and
circumstances got exactly where they were supposed to be on
time. I believe that the process deployed during that period
will continue to serve as an excellent model for the continued
use of FISA applications and operations.
As I mentioned, FISA is really only one tool in the whole
arsenal in counterintelligence and foreign counterintelligence
activities. We have done a number of other things recently to
ensure that this tool is used in the most effective manner,
including restructuring our FBI headquarters to give
counterintelligence a separate focus from counterterrorism. We
have increased the number of FBI agents, as well as personnel,
in the field dedicated to counterintelligence, particularly
with respect to national laboratories.
I believe the coordination between the FBI and the Office
of Intelligence which Ms. Fragos represents really is
excellent, and I applaud in public her leadership. She is a
former line prosecutor and brings to the very difficult and
complex task of OIPR both a prosecutor's sense of relevancy, as
well as a sound appreciation for the need with which these
activities must be addressed. We have much more coordination
with the Department of Energy. We are using, I think, more
analytical tools and more technology to bring all of our
efforts to bear.
So I very much pleased to be here, and the fact that this
legislation is cosponsored not only by you, Mr. Chairman, but
by Senator Biden, one of the authors of the 1978 statute, makes
this a very important and nationally sensitive discussion. I am
pleased to be here.
Senator Specter. Director Freeh, turning to the core
provisions, which in the statute are broader than a request
from the Director of the FBI encompassing a request from the
Secretary of State, the Secretary of Defense or the Director of
Central Intelligence, because those are the relevant
departments which may request a warrant under the Foreign
Intelligence Surveillance Act, what is your evaluation of the
statutory provision which would, in order to trigger the
personal review of the Attorney General, require that a request
be made in writing either by you as Director of the FBI or the
Secretary of State personally or the Secretary of Defense
personally or the Director of Central Intelligence?
Mr. Freeh. Senator, to the extent that the provision would
hold the FBI Director and the Attorney General personally
accountable for addressing and resolving such an issue, I
certainly have no objection to that. I do believe that, under
any circumstances, the FBI Director and the Attorney General
are personally accountable for not just the applications that
are made, but applications which are requested and for one
reason or the other are not made.
The only issue I would raise is whether that statutory
provision is too inflexible. For instance, should there be the
ability to delegate in emergency circumstances to a Deputy
Attorney General or a Deputy Director? The statute as written
would not really provide for that.
The other suggestion would be whether or not your bringing
the personal accountability of the Attorney General and the
Director to the fore, which I think is totally proper--whether
that would be better done in strong report language or whether
you actually want to put that into a statutory provision. I
don't have any objection to the latter, but I think if you do
that, you want to have some flexibility there and not lock us
into a situation where we couldn't delegate under any
circumstances.
Senator Specter. Well, when you talk about report language,
I have seen report language as often ignored as followed. When
you talk about a statute, it is binding. We frequently in the
appropriations process will put in very strong report language
as to congressional intent on expenditures. But the
interpretation by the executive branch has consistently been
that they can take it or leave it, really. But if it is a
statutory matter, it is different.
But I do think that the caveat about having it delegable
under some circumstances would be something we ought to refine.
Certainly, in case of disability, there ought to be the
opportunity for the next in line to handle it. We do not
envisage a situation where the Director has to handle every one
of them. We are really thinking only about the extraordinary
case where there is some reluctance on the part of the
Department of Justice, as there was in this case to issue the
FISA warrant.
And then when it becomes a matter of non-routine, if your
subordinates handle these matters in regular course and they
are approved, then it does not require the personal
intervention of either the Director of the FBI or the Attorney
General. But we are looking to the unusual case, and the real
issue is whether this is administratively burdensome. Does this
occur so often as to place an undue burden on you as Director?
Mr. Freeh. No, I don't think it would at all. I think this
would be a rare circumstance and would not administratively
burden either the Director or the Attorney General.
Senator Specter. Do you know, Director Freeh, how many
times there has been a declination, a refusal, by the
Department of Justice to forward the FBI's request to a court
for a FISA warrant?
Mr. Freeh. It has been a very rare occasion in my
experience.
Senator Specter. Has there been any occasion other than
this one with Dr. Wen Ho Lee, to your knowledge?
Mr. Freeh. There have been occasions where, you know, the
application has gone back and forth between the Department and
the FBI, which is exactly the way the process is designed as a
collaborative process. So the application is not rejected, but
it is sent back for additional work and review. In this
particular case, there was a rejection at the end of all the
deliberations and this was a very rare case, in my experience.
Senator Specter. Do you know of any other case where there
was a rejection at the end of the deliberations, the back-and-
forth process, as you describe it?
Mr. Freeh. Only one other case.
Senator Specter. The second provision of the statute we
have already talked about, and that is where the Attorney
General declines to forward a FISA application. The declination
must be communicated in writing to the requesting officials
with specific recommendations regarding additional
investigative steps that should be taken to establish the
requisite probable cause.
I think you have already answered the question about not
being administratively burdensome on the Attorney General, but
how about the desirability of that as a prospective road map to
tell the FBI where to go to fill out the picture to get the
request submitted and a warrant issued?
Mr. Freeh. Well, again, the accountability and the
specificity that this provision would require would clearly
contribute and enhance the process of collaborative work,
modification, supplementation to the original application. This
would certainly ensure that in a very, very rare case, you
wouldn't see something fall between the cracks or get lost in
the shuffle.
But, again, ideally the process does work this way, in my
experience, in the overwhelming number of cases that I have
been able to see and understand. So, again, I think it is a
provision that is not unduly burdensome. I think our process
does work that way and should work that way, and this certainly
would highlight the need for that specificity and a turn-around
responsibility.
Senator Specter. And the third statutory provision requires
that the requesting official--Director of the FBI, CIA,
Secretary of State or Defense--who makes the request and gets
the personal response of the Attorney General would then have
the obligation for personally reviewing the matter, again, to
avoid any kind of delay such as was present in the Dr. Wen Ho
Lee investigation.
Again, the question is is this unduly burdensome on the
requesting official?
Mr. Freeh. No, not at all.
Senator Specter. In the Dr. Wen Ho Lee case, there was an
objection raised on the concept that the suspect be,
``presently engaged,'' in the suspect activity. And the statute
has eliminated that consideration, but places the issuance of
the warrant on the totality of circumstances, which is the
general rule for probable cause.
What is your view of that provision?
Mr. Freeh. Mr. Chairman, as I said in my opening remarks, I
do believe that the current standard, if properly applied--and
I think it is properly applied now--allows within the totality
of the circumstances the past activity to be considered. In
fact, in the 1978 legislative history the report talks about
the situation where you have a foreign agent who is a sleeper,
who is sent into our country to do harm to our national
security but is not yet required or asked to become active. And
that fact, which would be past activity, not current activity,
is clearly a factor to be considered.
The legislation as you propose, I think, takes away that
interpretive aspect and makes very, very clear that the past
activity is considered. But, again, my view is that is
currently contemplated and that is, in fact, considered in
these applications.
Senator Specter. So this is really just a codification of
what you view the law to have been?
Mr. Freeh. I believe so.
Senator Specter. And any emphasis on being presently
engaged as a reason for declining a search warrant would,
without reference to any specific case, just be an erroneous
application of the existing law?
Mr. Freeh. Well, I think you could argue that current
participation and activity would be more probative of past
activity in the total accumulation of probable cause. But it is
clearly not to be considered to the exclusion of past activity
that is relevant to be considered.
Senator Specter. You make reference to the term
``sleeper,'' and by that you mean somebody who comes into an
espionage situation and is deliberately put on ice, so to
speak, or put in a background position to await events for an
opportune moment, which goes to the issue of you could have
somebody on a calculated wait on espionage who was holding back
and not presently engaged, but is waiting for the opportune
moment.
Could you amplify the concept of the sleeper?
Mr. Freeh. Surely. The technique of using a sleeper, which
would be someone obviously recruited and controlled by a
foreign power, sent into the United States with no specific
current assignment, the only assignment being to get into the
mainstream and become available and wait until a reactivation
or a command would come--it is a classic clandestine activity
used by services, particularly those who have worked
historically against the United States. In fact, we have made
cases, including one in Philadelphia, with respect to a
sleeper.
The design there is not to have that person engage in
activity until a given moment or a given command. So to say
that that person is a foreign agent but could not be surveiled
pursuant to a court order because they are not currently
involved in espionage would seem to defeat the intent of the
Congress. Indeed, the 1978 legislative history addresses this
particular phenomenon.
Senator Specter. So that there is a plan in some cases for
the spy to come into a community, establish themselves in a
business, make friends, social contacts, be a regular person,
et cetera, and wait for the opportune moment?
Mr. Freeh. Exactly.
Senator Specter. So that there could be justification for a
FISA warrant even though there was not any immediate current
activity on the part of that individual?
Mr. Freeh. Yes. Again, looking at all the circumstances
together, you could certainly make that case.
Senator Specter. Another provision in the bill requires the
disclosure of any relevant relationship between a suspect and a
Federal law enforcement or intelligence agency. What is your
view of that provision, Director Freeh?
Mr. Freeh. I think that the provision certainly addresses
what would be an absolute requirement to an application,
particularly one that is submitted for review and evaluation.
We would have to disclose in there that the subject, the
intended subject of the court order had some prior affiliation
with either the FBI, if that was the agency, or some other
agency. So I think that is a critical and necessary requirement
that that relationship be disclosed.
With respect to statutorily requiring that, this one,
unlike the prior provisions, could become administratively
burdensome in the sense that if the applying agency, in this
case the FBI, did not have such a relationship with that
individual, but another agency in the intelligence community
did, there may be difficulties in getting access to that
information in a timely manner and getting it disclosed.
So you may be creating some requirements which would be
administratively burdensome in the overall intelligence
community. In fact, we could get into situations where we would
be inquiring specifically to other agencies if they had a
current or past relationship with a particular individual. So I
would probably want to spend more time to deliberate on this
one. I think there are some aspects to it that could be
problematic. But, certainly, if the agency has that knowledge
or information, it has to be put in the application.
Senator Specter. Well, Director Freeh, that raises a very
basic and important question as to how much the various Federal
agencies know about what each other is doing, illustrated by
what does the FBI know about what the CIA is doing. And it
would seem to me that it would be very important to have in
place procedures where the FBI would know what the CIA knows
about a given individual to be most effective in dealing with
that individual.
What procedures are in place now so that you do a name
check if you have someone and want to know what is known by
some other Federal Agency--State, Defense, CIA, et cetera?
Mr. Freeh. There are a number of very well-established
procedures, as well as intelligence community structures that
address that. For instance, the counterintelligence center at
the CIA which is staffed jointly, in part, by FBI officers as
well as CIA officers, is a place where such a clearinghouse and
an exchange of information takes place. On a regular basis,
with all the agencies in the intelligence community, the FBI,
through its representatives and liaison to those agencies,
checks not only names but phone numbers and other information.
It is also reciprocal. Through our presence at these
intelligence agency stations, the intelligence agencies,
including the Department of Defense, have the ability to check,
again, names, places and things like that. So we have a good
index system. It is probably not universally perfect because of
the divergence of agencies and the different manners in which
they operate. So I think we have some very, very good
structures there. This is routine operating procedure before
applications are made, before cases are opened, and before
preliminary inquiries are made, and that organization works
very well.
Senator Specter. Well, to the extent that the system works
as you describe it, then the applying agency would know if some
other agency has used the suspect as an asset, and it would
call for the best efforts of checking and saying what you know.
If there is an oversight, you can't be held accountable for
that if you have used appropriate diligence in putting a system
into effect which is designed to disclose that fact.
Mr. Freeh. You are absolutely right and I agree with that.
Even in the criminal area, in the Title III applications,
before an application is made to a district court the
investigative agency has to do a thorough, comprehensive, best-
efforts, good-faith check of all the names, as well as the
phone numbers and addresses in the application, with all the
other agencies available to be indexed to make sure that the
person is not the prior subject of an electronic surveillance
order. So the same would apply here.
Senator Specter. Well, as a matter of basic fairness, I
think, for the suspect, this is a provision which we think
ought to be included.
The next provision in the law would require that when the
FBI desires for investigative reasons to leave in place a
suspect who has access to classified information, that decision
must be communicated in writing to the head of the affected
agency, along with a plan to minimize the potential harm to
national security.
What is your thought about that statutory provision?
Mr. Freeh. Senator, I don't have any objection to it at
all. It is the manner by which we generally operate. As the
investigative agency, we don't make, nor do we purport to ever
make a decision with respect to keeping someone in place at the
expense of national security or the compromise of the agency
where that person may work or have access to. That has to
always be, and should always be a decision by the host agency.
To put that in writing and to require a plan, I don't have any
objection to that. It certainly makes clear what our best
practice should be and what we strive to make it.
Senator Specter. And the affected agency must likewise
respond in writing with a plan within 30 days as to how to
handle the access of that suspect to classified information. Is
that provision satisfactory to you?
Mr. Freeh. Yes, sir.
Senator Specter. It is my hope that at tomorrow's hearing
that Mr. Edward Curran, Chief of Security for the Department of
Energy, will appear here to testify about these provisions as
well. Mr. Curran had been confirmed to appear tomorrow and we
received late word that he would not be here. We are still
trying to open up that channel, as we are trying to open up the
channel to bring in Secretary of Energy Richardson. I have
personally talked to him. He has a scheduling conflict on an
appropriations matter tomorrow, but we do expect Mr. Curran
tomorrow and we will be hearing from Secretary Richardson in
due course.
Director Freeh, as I mentioned to you in our meeting
yesterday afternoon, there are a couple of additional
provisions which are not in the bill which are under
consideration for inclusion at a later time, and that is to
codify the difference between a FISA warrant and a search
warrant in a criminal case where there is a necessity of
showing that the instrumentality is currently used in the
commission of a crime, contrasted with a FISA warrant where you
seek to have surveillance of a residence, for example, where
there may not be a current crime being committed, but it is an
effort over a long period of time to see what does happen, very
much on the sleeper concept. It may not be currently used in
the commission of a crime, but may be very relevant to have
that situation under surveillance.
Do you agree with that analysis on the distinction between
what must be put into a FISA warrant contrasted with a criminal
search warrant?
Mr. Freeh. Senator, I know we discussed this yesterday. We
have actually discussed it before, and it is a very good and I
think a very profound question and inquiry. I am not a
constitutional expert, so I think there are a lot of people----
Senator Specter. If you are not a constitutional expert,
Director, Judge, Special Agent Freeh, who is?
Mr. Freeh. I could actually name quite a few, including
some of the professors I had. In fact, one of them was the
advocate in the Camera case, which was one of the cases that we
discussed yesterday.
I have looked at these two cases; I have looked at them
before, but I read them again last night. The Camera case,
which is the 1967 Supreme Court case by Justice White, clearly
indicates that there may be a constitutional exception to
distinguishing a criminal probable cause standard and something
which would go to regulatory or in this particular case public
safety searches.
There is a dissent by Justice Douglas in the Frank v.
Maryland case which clearly says that the test of probable
cause required by the fourth amendment can take into account
the nature of the search that is being sought. A couple of
years later, in the U.S. District Court for the Eastern
District of Michigan case, which was a 1972 opinion by Chief
Justice Burger, the Court clearly contemplates some distinction
between probable cause as applied to a criminal case and
another case, in this case one involving domestic security.
And the Court wrote, if I just might read this portion,
``Given those potential distinctions between Title III criminal
surveillances and those involving the domestic security,
Congress may wish to consider protective standards for the
latter which differ from those already prescribed for specific
crimes.'' It goes on to talk about that it may be that
Congress, for example, would judge that the adjudication and
affidavit showing probable cause need not follow circumstances
more appropriate to domestic security cases.
So there is clearly language over several Supreme Court
cases that at least contemplate a distinction between probable
cause applying to a criminal case and other probable cause
applying to a warrant application for non-criminal matters. So
the basis is there. I think I would have to leave it to much
better and more competent experts to fashion that balance. But
we discussed this yesterday and I think there is a clear basis
to at least have this inquiry, and a very important one indeed.
Senator Specter. Before turning to our distinguished
President Pro Tempore who has just arrived, let me pursue that.
We are right in the middle of a fairly complex legal issue.
As you have articulated and referred to the cases--and
thanks for improving your status as a constitutional expert
with additional research last night--what you have just
commented on goes to another point that I was coming to next
about a potential difference in standard on national security
matters, which is really just an additional factor on the
customary totality of circumstances, but where there is a
balancing test of incursion into privacy contrasted with the
law enforcement interest.
Where you have national security, you have obviously have a
weightier matter than you have on a minor seller of narcotics.
So what you have just said, I think, goes to the point that
there is a national security factor on the weighing and the
balancing. Is that the essence of what those cases articulate?
Mr. Freeh. Yes, sir, I believe they do. Justice White in
Camera says that the reasonableness is really the ultimate
standard. So I think that being the guidepost, the balancing
that you have just alluded to is clearly an appropriate
exercise.
Senator Specter. Now, coming back to the specific point
about whether there has to be a crime currently in process,
which you have to do for a criminal warrant, my sense is that
we ought to codify, because there was a misunderstanding in the
Wen Ho Lee case. And this is in the report and I am not asking
you to comment about that, but just the generalized
desirability of writing it down in the statute and then you
don't have an argument as to what the rule is. Everybody who
works on these cases is not a constitutional expert; you don't
have them making out the warrants or passing on them.
So the question is, number one, do you agree with that
difference on probable cause so that when we have a criminal
warrant the instrumentality must be used in the commission of a
crime, contrasted with a FISA warrant where you do not have
that immediacy?
Mr. Freeh. Yes, I agree with that.
Senator Specter. And, secondly, the desirability of
codification so it is plain to someone who picks up the statute
and reads it and is in dialogue with an FBI agent who wants a
FISA warrant that this is the appropriate standard?
Mr. Freeh. Yes, I understand the reason for that, and if
you recall one of the past Congresses where you sponsored a
provision for the Intelligence Authorization Act, Section 811,
which put into statutory form the requirement which was the
practice then, hopefully a requirement that any and all
agencies who come up with information with respect to
counterintelligence or espionage activity must refer that
immediately. So there is no downside in codifying that.
Again, I think the current statute contemplates that, and a
fair reading of it would permit it and has permitted it and
does permit it. But I don't have any objection to your
suggestion.
Senator Specter. Let me interrupt my questioning of you,
Director Freeh, to turn to our distinguished President Pro
Tempore who had opened the Senate this morning, which is one of
his many duties. I know he has other commitments, so let's turn
to Senator Thurmond at this time.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Thank you very much, Mr. Chairman. Mr.
Chairman, I want to commend you for holding these hearings to
discuss the need for reform to the Foreign Intelligence
Surveillance Act, or FISA. We must make certain that this
critical law enforcement tool is fully utilized to protect
America's national security.
Recently, Senator Specter and Senator Torricelli introduced
the Counterintelligence Reform Act of 2000. This bill would
make important but modest changes in the law to help provide
for more accountability by the Justice Department regarding its
review of applications for FISA warrants from law enforcement.
I am pleased to be an original cosponsor of this timely
legislation.
Since early last year, I have been extremely concerned that
highly sensitive information regarding the design, construction
and testing of nuclear weapons may have been compromised from
our national laboratories. Some of the information that may
have been released goes to the heart of our national security.
Based on this subcommittee's investigation, it is clear
that apparent breaches of national security at Los Alamos
National Laboratory were not aggressively investigated by law
enforcement before the matter received widespread attention
last year. Even though national security was at stake, there
was no sense of urgency or priority, and the investigation was
poorly managed.
However, many of the problems that have been identified
regarding this investigation could have been avoided had the
Attorney General approved the FBI's request for the FISA
warrant in 1997. At the time, the Attorney General delegated
her review to an inexperienced subordinate, who concluded that
probable cause to proceed did not exist. This was a serious
mistake that resulted in significant delays to the
investigation.
We must make sure that the mistakes made in the past do not
happen again. The bill we are considering today would help
prevent future problems in many ways. First and foremost, it
imposes personal responsibility on the Attorney General. It
requires that, if requested by the FBI Director, the Secretary
of State, Secretary of Defense, or the CIA Director, the
Attorney General must personally decide whether the FISA
warrant request should be presented to the court.
If the Attorney General rejects the application, she must
do so in writing with an explanation, so that the agency will
have some guidance to help it perfect the warrant. I do not
believe this is an unreasonable burden because this personal
involvement is only triggered if requested by one of these
agency heads. Also, we hardly can be too careful when grave
matters of national security are at stake.
Further, the bill clarifies that when determining whether
probable cause exists for the warrant, the court may consider
past activities of the person under investigation. Obviously,
past conduct is critical to whether a warrant should be issued,
and this should be clear in the law.
Although the Wen Ho Lee case is the primary reason we are
considering this legislation, we must keep in mind that the
investigation of Lee is an ongoing matter. It is important that
we avoid the factual details of this or other active cases when
discussing this legislation because these hearings must not
interfere in any ongoing investigation. We must not do anything
that could be harmful to the legal process.
I believe this bill is an important step in helping to
protect our national security. We cannot prevent the mistakes
of the past, but we can take steps to help prevent history from
repeating itself. I welcome our distinguished witnesses to this
hearing. I look forward to discussing this important
legislation with them today.
Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Thurmond. The
concluding part of your statement emphasizes a point which I
had commented about earlier, and that is to honor Director
Freeh's request that we avoid the specifics of Dr. Wen Ho Lee's
case, both out of fairness for the prosecution and out of
fairness to the defendant. And I had discussed that again with
Director Freeh just yesterday.
I had said in my opening statement, Director Freeh, that I
was going to come to you for corroboration of our discussion,
but with Senator Thurmond here and his having just made the
point, this is as good a time as any. Let me begin by the basic
point as to whether to your satisfaction we have honored your
request that we not get into the facts of the Wen Ho Lee case
which could in any way prejudice the prosecution or prejudice
the defendant.
Mr. Freeh. Absolutely, Mr. Chairman. And, Senator Thurmond,
thank you. This is obviously, as we have all agreed, a critical
issue, and I think that the oversight you are exercising here
is directly on point. It is critical to preserving and
improving the use of this tool and you are doing it in a
fashion that certainly doesn't interfere with that pending
matter. So you have our appreciation and the appreciation of
the Attorney General.
Senator Specter. Director Freeh, let me just supplement one
other point about our conversation as to the report. Dobie
McArthur, who has done such an outstanding job for me, is
working with John Collingwood of your office, and it has been
cleared at the staff level. Of course, you and I have talked
about it personally, and I have already referred to the letter
from the Assistant Attorney General for Legislative Affairs,
Mr. Robert Raben, who said that there are no classification
problems.
Just to confirm for the record your review of that report,
is it correct that there is no problem for the FBI in the
release of that report?
Mr. Freeh. Yes, sir. We have no objection.
Senator Specter. Let me proceed now, Director Freeh, to the
subject of counterintelligence and its importance, a matter
which you and I talked about yesterday and thought this would
be a useful occasion for an amplification as to the scope of
the Bureau's work and the importance of counterintelligence.
Notwithstanding the demise of the Soviet Union, there are
still a great many threats in the world, and I appreciate your
having made available to me a copy of testimony which you
presented to the House Permanent Select Committee on
Intelligence, with a fair number of those items being in an
unclassified state which would apprise the public, I think, in
a very meaningful way as to the importance of
counterintelligence over and above the Wen Ho Lee case as to
what the FBI is currently engaged in.
Mr. Freeh. Mr. Chairman, as you well know, having had such
an extensive background in this area, the counterintelligence
programs in the United States have not only continued at their
pre-1989-1999 levels, but have actually increased in some
respects.
As you know by recently reported cases, we have been
continuing our efforts against the Russian Intelligence Service
and the Cuban Intelligence Service. Those cases recently made
which I won't comment on--one is a particular pending criminal
case also in the category that we have previously discussed,
but the cases and the allegations there indicate that these two
countries obviously are actively involved in espionage
activities against the United States.
If you take not only----
Senator Specter. Can you mention the countries, Director
Freeh?
Mr. Freeh. Yes; Cuba and Russia.
If you take the particular traditional adversaries of the
United States in areas of counterintelligence and you then add
to that the current threats and different threats, we know from
the hearings that the Senate had and the House had on the
Economic Espionage Act that there are several countries, over
20 in number, who use their clandestine services to plan to
acquire trade secrets which go directly to the economic
security of the United States, which today is tantamount to our
national security.
We have technology tools available to use in
counterintelligence. But, of course, the spies as well as the
terrorists also use counterintelligence tools. We saw over the
millennial period, for instance, that several well-documented
plans which were in motion to attack Americans inside the
United States as well as outside the United States were being
carried out in a manner that used technology with great
sophistication, using computers, using encrypted files on
computers, using telecommunications which are difficult to
intercept as well as to analyze on a real-time basis.
So we have not only the traditional threats and adversaries
against the United States, but we have a whole new genre of
threats which are augmented in terms of their dangerousness by
the technology which is available to be used against the United
States.
So our counterintelligence programs have been growing. We
have asked not only in the current 2001 budget, which I will
testify about later this morning, but in past budgets for
enhancements in not only personnel but tools and technology,
infrastructure, computer analysts. We are finding that more and
more of our work, particularly in complex counterintelligence
matters, relates to our competency to understand and extract
forensically from computers information, whether it is
encrypted or not.
All of the work that this committee and you personally have
done to make sure we preserve our tools to use court-authorized
electronic surveillance in the digital age--all of these
competencies are very, very much relevant when you have spies
and terrorists applying technology to the extent they are doing
so against the United States. So we are not in anything except
a growth mode with respect to both our capabilities and the
scope of the apparent abilities of these agencies to harm us.
Senator Specter. Director Freeh, I note from your written
testimony submitted to the House Intelligence Committee that
when you enumerate the intelligence services, you lead with the
PRC, the People's Republic of China. We are about to consider
permanent trade status with China, and one of the factors on
the minds of many in the Congress who will have to vote, and
the American people generally, involves what the People's
Republic of China may be doing on espionage.
I am not talking about any special case, although I think
it might be fair to comment about the case of Dr. Peter Lee
which this oversight committee is looking at, where there was a
plea bargain in the District Court for the Central District of
California. And Dr. Lee, no relation to Dr. Wen Ho Lee, but Dr.
Peter Lee received community service and a fine and no jail
sentence in what I consider to be a very egregious case
involving the disclosure of nuclear secrets in 1985 and the
disclosure of certain materials about detecting submarines in
1997.
We are taking a close look at whether the Department of the
Navy responded properly to the Department of Justice request
for a prosecution and whether the Department of Justice pressed
hard enough on some of the key spots. But that is a very
prominent illustration of People's Republic of China espionage.
And there are a great many factors on the trade issue.
There is the factor of threat to Taiwan, there is the factor of
sale of missiles to Pakistan, there is the factor of human
rights. We just went through a very tortuous process where a
librarian from Dickinson College in Carlisle, PA, was detained.
Finally, he was released, but an egregious violation, a man
held in detention for absolutely no reason from August until
late January, early February.
My question to you, to the extent that you can comment
about the threat posed by espionage from the People's Republic
of China, is how serious is it, Director Freeh?
Mr. Freeh. Mr. Chairman, as you can see from my opening
statement in the session that was before the House Intelligence
Committee, I extensively detailed by number as well as
particular cases the aspects of that threat, which we not only
in the FBI but our other security agencies treat with the
utmost seriousness. It is difficult to go into the scope of it
or the particulars of it in this session.
The reason for that testimony in front of the House
Intelligence Committee and testimony tomorrow by Mr. Tenant and
I in the Senate Intelligence Committee is to exactly lay out
the parameters of that threat so that can be considered
appropriately by the decisions which are made by the Congress.
Senator Specter. But you characterize it as very serious?
Mr. Freeh. Yes, sir, absolutely.
Senator Specter. Senator Thurmond.
Senator Thurmond. Thank you, Mr. Chairman.
Director Freeh, during significant investigations such as
alleged espionage, which management levels above the field
supervisor does FBI policy require to be involved on either a
daily, weekly, or monthly basis either to review the status of
the investigation or to be briefed as to the case status?
Mr. Freeh. Yes, sir. Our practice and the requirements of
the managers of the counterintelligence program, particularly
at the supervisory level in the field, the headquarters
supervisory level and the section chief, and then assistant
director level, is to be continuously advised of those
developments.
One of the reasons why we split our national security
division into a separate counterterrorism and
counterintelligence division is to give both of those programs
on a case-by-case basis more focus, more knowledge on a timely
basis to the chain of command, including the Director. So, that
is the regular practice and is a necessity in these types of
cases.
Senator Thurmond. Director Freeh, recently the FBI
completed a reorganization, creating two new divisions which
split the national security division into counterintelligence
and counterterrorism. How will this reorganization assist in
your efforts to address allegations of espionage?
Mr. Freeh. Again, it gives us a much more enhanced ability
in terms of command and control of both counterintelligence
cases and counterterrorism cases. We found in the national
security division that the phenomenal growth of the
counterterrorism programs was such between 1993 and 1999 that
they began to overshadow some of the counterintelligence
matters of equal importance. And the leadership in that
division was continuously pressed by the immediacy of the
terrorist threats and issues to sometimes not pay the attention
required to the counterintelligence cases, again, of equal and
maybe more importance. So this splitting gives us more command
and control, more hands-on attention, and more information
flowing up to the Director and the Attorney General.
Senator Thurmond. Director Freeh, will this reorganization
bring about greater supervisory involvement and more effective
FBI case management practices, in order that cases which
involve breaches of our national security are more likely to
proceed with some sense of urgency and priority?
Mr. Freeh. Yes, sir, I believe it will, and the addition of
counterintelligence personnel, both agents, analysts,
surveillance personnel, will all add to that focus and
distribute it evenly between the two divisions.
Senator Thurmond. Director Freeh, do you believe the
Counterintelligence Reform Act will enhance the FBI's ability
to pursue and to complete in an expeditious manner the
investigation of cases involving allegations of espionage?
Mr. Freeh. Yes; as I set forth before, all of those
elements in the statute certainly promote and enhance those
objectives. There is nothing in there that does otherwise,
except for the few qualifications that I made to the chairman.
Senator Thurmond. Director Freeh, what additional changes,
if any, to the Foreign Intelligence Surveillance Act would help
our counterintelligence efforts?
Mr. Freeh. Senator, I can't think of any now. I don't
propose any. I think the ones that are contemplated in the
jointly sponsored legislation address certainly the areas that
have occupied our concern recently.
Senator Thurmond. Director Freeh, this Act would require
the Attorney General to personally review FISA applications
when requested to do so. How often do you think that you would
need to contact the Attorney General to seek a personal review
and support for a warrant, or do you think it would generally
not be necessary to involve the Attorney General personally?
Mr. Freeh. I think it would be a rare occasion when we
would need to do that, but I think on those occasions you would
want to have involved both the Director and the Attorney
General personally, as is the case on these types of matters.
Senator Thurmond. Thank you.
Ms. Townsend, it appears to me, based on various testimony
and documentation, that the OIPR legal review function
regarding law enforcement requests for FISA warrants has
operated in an adversarial role with law enforcement. It
appears to be simply a review function when, in important
matters such as espionage, it should be assistance-oriented and
actively aid law enforcement in perfecting warrant applications
so they will be approved.
What needs to be done to improve your office's cooperation
with law enforcement regarding FISA applications?
Ms. Townsend. Senator, it is unfortunate if the impression
has been left that the process is an adversarial one. I view it
very much as a collaborative process where we work very closely
with the FBI and other requesting agencies. That has been the
case, that has been my experience.
The Director has heard me say often enough that I view the
FBI as my biggest client, and I think that speaks volumes about
the relationship. We do work cooperatively together. We work in
the best interests of the United States to promote the Nation's
security and to perfect the cases and the facts so that we can
obtain the warrants and the FBI can utilize those techniques
that they believe necessary.
Senator Thurmond. Ms. Townsend, in my view, it is critical
for the Department of Justice to assist the FBI and other
requesting agencies to correct any flaws in FISA applications
and not simply engage in a review function regarding
applications.
Do you believe the Counterintelligence Reform Act can be
implemented in a manner that will help promote a proactive,
assistance-oriented approach to FISA applications on the part
of the Department of Justice?
Ms. Townsend. Yes, sir, I do.
Senator Thurmond. Ms. Townsend, do you think this
legislation, combined with perhaps a change of attitude, will
make it possible for Department of Justice attorneys to work
more closely and more effectively with the FBI on important
matters such as FISA applications in a manner that will aid in
the expeditious completion of an investigation, especially one
that relates to our national security?
Ms. Townsend. Senator, I would hope that would be the case
in all cases, whether they were espionage- or terrorism-
related, that we would work together cooperatively to perfect
those applications and allow the Nation's security to be best
protected.
Senator Thurmond. Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Thurmond.
Director Freeh, thank you very much for joining us. We know
you have a commitment before the appropriations subcommittee.
This is an interim report on the issues raised on Dr. Wen Ho
Lee. This report goes to the legislation, as has your
testimony. It may well be--I don't want to make any firm
declarations----
Senator Thurmond. Mr. Chairman, I have another appointment,
if you will excuse me.
Senator Specter. Thank you very much, Senator Thurmond. It
is a great pleasure, as always.
As I say, I don't want to make a firm commitment, but we
probably will have further hearings on Dr. Wen Ho Lee's matter
on the substance as to what happened specifically. But we
appreciate your coming in today and your candid testimony on
the statute because it is our intention to move this very
promptly because these matters are of such great importance to
have these procedures in place.
So thank you.
Mr. Freeh. Thank you, Mr. Chairman. Thank you again for
your leadership, and again on behalf of the Attorney General
and I, thank you for your consideration of these matters.
Senator Specter. Thank you.
[The prepared statement of Mr. Freeh follows:]
Prepared Statement of Louis J. Freeh
Good morning Chairman Specter and Members of the Judiciary
Subcommittee. I am pleased to be with you this morning as you discuss
the Counterintelligence Reform Act of 2000.
Before we begin, I would like to take this opportunity to thank you
again for agreeing to forego hearings on the Wen Ho Lee matter at this
time. I appreciate your understanding of the sensitive circumstances
surrounding this matter and the concern that testimony on these issues
could interfere with the ongoing case.
I know that many of you have concerns as to whether the FBI's
counterintelligence legal authorities, particularly those contained in
the Foreign Intelligence Surveillance Act, remain effective tools in
the current environment. Likewise, many have asked whether the FISA
statute is being interpreted as Congress intended. Although I have
shared those concerns on some occasions in the past, I am pleased to
say that, today, I am confident that the FISA is being properly applied
and continues to be a potent weapon in our fight against terrorism and
espionage.
In my view, FISA is a flexible statute which permits the court to
take into account the totality of circumstances existing in each case.
I believe this includes consideration of past activity relating to
espionage or terrorism. In some past cases, I have had concerns that
the statute was being applied too restrictively, but, on the whole, I
think that the current application of FISA is consistent with
Congress's intent. The Attorney General and I have both given our
personal attention to the FISA process over the past several months. As
a result, we now are improving the procedures for generating FISA
orders, and we have clarified our joint understanding of the FISA
standards.
The events of the recent millennial crisis dramatically illustrate
the success of these efforts. During the crisis, DOJ and FBI worked
together to bring the full range of FISA techniques to bear on the
emerging terrorist threat. A large number of FISA requests were
prepared and presented to the court in record time. More importantly,
the decision-making process for these applications incorporated
exceptionally close cooperation between DOJ attorneys and both FBI
headquarters personnel and FBI agents in the field. Such discussions
allowed the decision-makers a more detailed picture of the
circumstances surrounding each FISA request. I believe the process
deployed in the millennial crisis will serve as an excellent model for
future FISA operations.
I appreciate the opportunity to speak with you today on this very
important subject. I would be happy to answer any questions the
Subcommittee might have relating to the proposed legislation.
Senator Specter. Ms. Townsend, let's proceed with your
testimony. Senator Thurmond has very appropriately started to
raise some of the key issues, but your statement is, of course,
a part of the record and we look forward to your testimony.
STATEMENT OF FRANCES FRAGOS TOWNSEND, COUNSEL FOR INTELLIGENCE
POLICY, OFFICE OF INTELLIGENCE POLICY AND REVIEW, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Townsend. Thank you, Mr. Chairman, for the opportunity
to appear today and to provide the views of the Department of
Justice on the Counterintelligence Reform Act of 2000. This
proposed legislation seeks to amend the Act of 1978 to modify
procedures relating to orders for surveillance and searches for
foreign intelligence purposes.
As the chairman is well aware from your own experience,
FISA was in large part a response to concerns in the 1970's
regarding the use of warrantless electronic surveillance in the
name of national security. In the crafting of the current FISA
statute, the drafters attempted to strike a balance between the
protection of national security and the protection of personal
liberties, providing the executive branch with statutory
authority in appropriate cases to acquire important foreign
intelligence information by surveillances and searches.
The balance that was struck in the original statute largely
has withstood the test of time, to include challenges both to
the constitutionality of the authority contained in FISA and
the demands placed upon the statutory mechanism to authorize
the collection of foreign intelligence and counterintelligence
information which is essential to our national security.
As the Attorney General has stated, the maintenance of U.S.
national security is one of the most crucial missions of the
U.S. Government. As Counsel for Intelligence Policy, assisting
in investigations to safeguard and protect our national
security is my primary and most important mission.
Everyday, my office works closely with FBI agents and
others to ensure that we make every effort to protect our
country from national security threats such as espionage and
international terrorism. At the same time, all of us involved
in the FISA process are keenly aware of the delicate balance
between the need to protect the constitutional rights of our
citizens on the one hand, and the need to protect the very
Nation that ensures those rights which has been struck by the
existing statute.
We appreciate very much the sensitivity reflected in the
subcommittee's approach to the amendment of FISA, as we believe
it retains the balance struck by the drafters of the current
statute, while providing those charged with implementing FISA--
that is, the Department, the Bureau and the court--with
additional guidance on the very real importance of certain
factors to be considered in the request.
While we might suggest minor changes regarding the
delegability of some of the provisions you and the Director
have already referred to, we support the current proposed
legislation. We are happy to work with the subcommittee on any
minor changes. We believe that the current FISA statute allows
us to consider all the factors and procedures contemplated by
the proposed amendment. However, we welcome the additional
guidance and clarity that the Counterintelligence Reform Act of
2000 provides. The Department supports the proposed legislation
as a helpful enunciation of these important factors in national
security cases.
Thank you.
Senator Specter. Thank you very much, Ms. Townsend. In your
statement, you refer to some amendments that you categorize as
minor on delegation of responsibility. What would your
suggestion be?
Ms. Townsend. I very much concur with the Director's
assessment that none of the provisions--for example, the
Attorney General's personal review or the Director's written
request for her to conduct a personal review--I do not believe
that they cause an administrative burden.
I think as a practical matter we all in Government wish to
have the maximum amount of accountability, and I think that the
statute goes a long way to ensuring that. I think that the rare
instance where this would come up will be in the most important
and sensitive cases. For that reason, I think that we want to
ensure that there is some flexibility allowed, while providing
for the type of accountability that Congress seeks, whether
that means that there can be delegation to an acting, if either
are unavailable or incapacitated.
But I think there needs to be some flexibility, if this is
going to be legislated, to provide--I mean, in the last two
weeks, the first week the Attorney General was out of the
country, the second week the Director was out of the country.
And I wouldn't want to see a situation where there was some
delay in the processing of an important case where there was a
disagreement. That would be my only concern.
Senator Specter. If there is disability, that would be an
occasion for delegation. Would you say being out of the country
would be another basis for delegation? Any time frame on that
or just out of the country for any time?
Ms. Townsend. I think it is difficult to say, Senator,
because I think, depending on the exigency of the case or the
circumstance, a day or two could be an unacceptable delay under
a particular set of facts. And because I think a statute if it
doesn't provide for some delegability can't anticipate those
circumstances, I think it is wise to provide for some
flexibility.
Senator Specter. Well, we could provide for disability,
unavailability, with an exigency provision, something very
important to get done. Is there any other situation which comes
to your mind where there ought to be delegation?
Ms. Townsend. No, sir.
Senator Specter. Director Freeh testified, as you heard,
that he knew of only one case other than Dr. Wen Ho Lee where
the Department of Justice turned down a request by the FBI for
submission of a FISA application to a judge. Do you know of any
cases?
Ms. Townsend. Senator, in fairness, I have been sitting
here since the Director said that racking my brain for what
that one case would have been. I am not aware of--and it may be
prior to my tenure, sir----
Senator Specter. How long have you been with the Department
of Justice?
Ms. Townsend. I have been with the Department of Justice
since January 1988, but I have only been in my current position
as counsel since March 1998.
Senator Specter. Since March 1998, and it is only in your
current position that you have dealt with FISA warrant
applications?
Ms. Townsend. Yes, sir.
Senator Specter. And in that period of time, do you know of
any declination besides the Dr. Wen Ho Lee matter?
Ms. Townsend. Honestly, Senator, none that come to mind. I
will certainly go back and check and immediately advise you if
there is one that I am unaware of.
Senator Specter. Was there any case other than Dr. Wen Ho
Lee where the matter was taken personally on a FISA application
to the Attorney General?
Ms. Townsend. Oh, yes. In my tenure, we have frequently--I
won't say frequently; it overstates it. We have on occasion,
where there has been some legal issue where there has been a
disagreement with the FBI on how to proceed, presented it to
the Attorney General. If there was a disagreement of some
nature between the FBI and myself, I would not presume to make
the final decision. I would take that to the Attorney General
and discuss it with her personally and, in fact, suggest to
her, as has been the case in every one of these, that we sit
down together with the Bureau to resolve it.
We have been able to work through every issue. None of
those involved the denial. When I say bring a matter to her
attention personally, there is not a single one of those that
involved a rejection or denial by the Department where I was
suggesting we should do that. It was on some implementation
issue, it was on some narrow issue about how to plead
something. It was not on is there probable cause or not.
Senator Specter. How frequently have those matters been
taken to the Attorney General during your tenure for the last
two years, since March 1998?
Ms. Townsend. Less than a handful. I mean, I would say less
than six.
Senator Specter. Less than five?
Ms. Townsend. Less than five or six.
Senator Specter. When they have been taken to the Attorney
General, has her practice been to delegate them to somebody, as
she did to Dan Seikaly?
Ms. Townsend. No, sir. She has decided each of them--that I
am aware of, she has decided each of them personally.
Senator Specter. I don't want to get into any of the
investigative matters, but I don't think it does, to inquire as
to why it was presented to Mr. Seikaly in this case.
Ms. Townsend. Senator, as I have said, I came into the
position in March 1998. I was not present in my current
position at that time. So why it was presented to Mr. Seikaly,
I don't know.
Senator Specter. Who held your position in August-September
1997?
Ms. Townsend. At the time, it was an acting counsel because
the position had not been selected. It was Gerald Schrader, who
is still a member of the Department of Justice.
Senator Specter. Would it have been customary to have the
matter go to him as opposed to somebody else like Mr. Seikaly?
Ms. Townsend. My understanding--and, again, I have tried to
learn these facts looking back--my understanding was that it
did come to him initially in terms of the decision before it
was ever raised with the Attorney General and before it went to
Mr. Seikaly.
Senator Specter. So it went to Mr. Seikaly after the person
in your position had ruled on it, then to the Attorney General
and she delegated to Mr. Seikaly?
Ms. Townsend. I don't know that Mr. Schrader ever raised
this matter with the Attorney General, Senator. I think he did
not.
Senator Specter. Do you know if Mr. Schrader passed on the
matter?
Ms. Townsend. Yes, I think he did.
Senator Specter. Do you know what he did?
Ms. Townsend. In detail, no, sir. Again, I was not present
and so I am reluctant only because I don't want to misstate it.
Senator Specter. All right. Well, having not been there
when this matter was handled by the Department of Justice, you
are obviously not in a position to say exactly what happened.
Well, we have asked for the Attorney General, as you know, on
March 21, so we will go into that with her at that time.
With respect to the provision to eliminate the requirement
of being, quote, ``presently engaged,'' close quote, does your
Department agree with that statutory change?
Ms. Townsend. You are talking about Section 2 where it may
consider past conduct?
Senator Specter. Yes.
Ms. Townsend. Yes, sir.
Senator Specter. And does not have the same standard which
might be described as a restrictive standard on being presently
engaged in the suspect activity?
Ms. Townsend. Senator, I believe that Section 2 as proposed
really codifies what is current practice; that is, in
evaluating the probable cause, we do consider and include, to
the extent it is relevant, any past conduct, and would include
it. So the Department supports this frankly as a codification
of what our current practices are.
Senator Specter. Well, there was an emphasis here on being
presently engaged. Do you think that that is now the
appropriate standard under existing law, so that this is just a
codification?
Ms. Townsend. The language of the statute is ``engages
in,'' and we have interpreted that in the past to be
``presently engaged in,'' which is where I think that language
comes from. That is not to the exclusion of past activity, and
frankly oftentimes where we see past activity, it has been my
experience that in looking back and working with the agents
what you will find is there is some indication either of
present activity or the intention of present activity.
Senator Specter. So you don't have to be presented engaged.
You could be a sleeper, as Director Freeh defined it, to
qualify?
Ms. Townsend. Yes, that is correct.
Senator Specter. So you think that is existing law, but the
Department has no objection to the codification to eliminate
any potential misunderstanding that someone must be presented
engaged?
Ms. Townsend. That is correct.
Senator Specter. With respect to the difference on standard
on a criminal warrant where the instrumentality has to be in
the use of a crime as opposed to a FISA warrant, you heard the
discussion which I had with Director Freeh. Do you agree with
Director Freeh's assessment that there is a difference on
probable cause for a criminal search warrant as opposed to a
FISA search warrant with respect to whether the instrumentality
is being used for a crime under a criminal warrant contrasted
with a FISA warrant, say, for a house where there does not have
to be a showing of present crime or violation?
Ms. Townsend. Yes. As it relates to the instrumentality and
the use of the instrumentality, I do agree with your analysis.
I do not believe it is the same as the criminal standard; that
is, use in commission of a crime. That is not the standard
under FISA, and the proposed codification of that the
Department has no objection to.
Senator Specter. And with respect to the balancing test on
national security, what is your view on that?
Ms. Townsend. It is interesting to me, Senator, because I
think that the cases, both Whren and Dunaway v. New York,
suggest that a balancing where a warrant is required and the
basis of the warrant is probable cause, we don't engage in a
balancing. This multifactor balancing test is not appropriate
in those cases.
I think that the Illinois v. Gates totality of
circumstances is, to the extent the Supreme Court has given us
guidance on the definition for probable cause, the best
definition. It is what is a reasonable inference based on all
of the facts presented before us. And I think to the extent
that the statute gives us guidance that that includes past
conduct, current conduct, what we know about an individual,
what we know about their actions on behalf of a foreign power.
All of that needs to be brought together in considering whether
or not it has met the standard.
I believe that the proposed legislation as it currently
exists and is before the Senate for consideration is the best
formulation which strikes a balance that is consistent with the
1978 statute.
Senator Specter. Well, would balancing include a factor of
some weight where there is a national security interest which
would be of some significance, distinguished from a regular
criminal case?
Ms. Townsend. Senator, I think that there is no question.
When these cases come in to us, the significance of the
national security interest absolutely affects how----
Senator Specter. No question that the national security is
a weighty factor?
Ms. Townsend. It is absolutely a factor that comes into
consideration. I think the national security interest is one
that we must be aware of and we must consider. But, again, I
think that the cases that suggest a balancing as opposed to
probable cause--I think those are different tests, and I think
that under a probable cause standard as defined by the statute,
we must look to the factors that are set forth in the statute
and take the entire circumstance of the presentation and the
facts that are before us.
Senator Specter. Including national security?
Ms. Townsend. Yes, sir.
Senator Specter. Well, in light of the fact, Ms. Townsend,
that you were not there until March 1998 and cannot shed any
additional light on some of the matters that I have asked you
about, we will limit the questioning to the statute which we
have covered.
We thank you for appearing here, and that concludes our
hearing.
Ms. Townsend. Senator, could I add one point?
Senator Specter. Sure.
Ms. Townsend. On section 3, you had asked the Director
about the importance of revealing in the context of an
application the asset relationship. I would like just to take a
moment of your time----
Senator Specter. That is fine, on that point or anything
else that you would care to add, sure.
Ms. Townsend. Thank you. I think it is critically
important--and I have no reason to disagree with the Director's
characterization that good-faith best efforts are made to bring
that information to the attention of the Department and the
court.
The current formulation suggests that that information
should be included where it is relevant to the determination of
probable cause. I would suggest to you that it is always
relevant. Where we have to make a pleading to the court that an
individual is an agent of a foreign power, whether or not we
have at some point in the past or currently have some
relationship with that target is essential to know in making a
determination as to whether or not someone is indeed acting on
behalf of a foreign power.
That is not to suggest if we find that we have had a
relationship or do have a relationship that that prohibits the
application from going forward. In fact, the legislative
history to the 1978 Act is quite the contrary. It allows us, in
spite of some relationship, to proceed with the application.
I just can't underscore enough I think it is very
important, and I think the court believes it important, that
that sort of information be included. I certainly would not
want to see an undue administrative burden put on the FBI, but
I think that that piece of the proposed legislation is very
important to retain.
Senator Specter. That is a provision you would attach a
little extra weight to, right?
Ms. Townsend. Yes, sir.
Senator Specter. OK; anything else, Ms. Townsend?
Ms. Townsend. No, sir. Thank you very much.
Senator Specter. Thank you very much for coming.
That concludes our hearing.
[Whereupon, at 11:00 a.m., the subcommittee was adjourned.]
