Testimony of Jeffrey H. Smith Mr. Chairman, it is an honor to appear before you this afternoon to discuss these issues of great national importance.
Senate Select Committee on Intelligence
September 24, 2001You have asked me to discuss my views on how the United States should respond to this attack, particularly from an intelligence and law enforcement perspective. You have also asked for my views on the legislation pending before the Senate, particularly on those issues for which this Committee has jurisdiction.
It is a special privilege for me to appear before this Committee, because I was honored to be a member of its staff for nearly five years. Mr. Chairman, Mr. Vice Chairman, I commend you for your leadership over the years, particularly in this extraordinarily difficult and demand time. I am sure this Committee and the Congress will play a great role in leading this nation to victory.
Let me also add, Mr. Chairman, a note of commendation to the truly extraordinary efforts being made by the men and women of the U.S. Intelligence Community. They are working around the clock in an unprecedented effort of dedication and determinination to find out who attacked us, prevent future attacks, and support the U.S. diplomatic, military, law enforcement and intelligence response that is forthcoming. In particular, I know that George Tenet has put his heart and soul in this effort, and he deserves the nation's thanks.
OVERVIEW
Not long ago, there was much talk that we were headed toward a borderless world. Many believed that such factors as the revolution in information technology would render borders meaningless. Some even questioned the future of state sovereignty, although others asserted that the state would survive and remain the principal actor in international politics.
The increased flow of capital, goods, people, technology, and ideas across borders has brought much to many of the world community. However, as the President has stated, those who stand to lose from such trends have lashed out in irrational fear at the freedom, progress and prosperity the rest of the world enjoys. These forces of fear have woven a network across many borders of like-minded individuals, organizations and governments to declare war on us and our allies.
The very nature of this international network presents us with unique challenges for which we must find new and innovative responses. This threat comes at us from many directions and in many guises, and we must be prepared to respond on an equally broad front.
The terrorists have created their own borderless world, and it is therefore ironic -- and most appropriate -- that President Bush has called upon all states to enforce the most basic rules of international law: namely, that states must exercise governmental authority within their defined borders. President Bush has rightly demanded that every state abide by the rule of law by rooting out terrorists on its territory or cooperating with us in doing so. Indeed, all states have a common interest in defeating these forces of terror and fear because these forces can turn on other states as surely as they have turned on us.
How then, should the United States respond? In my opinion, five principles should govern our response.
First, because this is a seamless, borderless attack we cannot have artificial seams or borders in our responses. In the past, we have approached terrorists acts by asking whether a particular act is a law enforcement, intelligence, or national security matter. That question must no longer be the first question. We must be able to collect and analyze information; then sort out later whether it's "evidence" or "intelligence."
We must see this as an integrated threat for which we must have a single, integrated response. There should be no artificial "stove pipes" in our responses. By that I mean we must have, as the armed services do, a "joint" response. For many years now, the Department of Defense has worked very hard to create joint organizations that will fight jointly. The same must be true not just within our military but across the government.
This is easier said than done, but the President took a major step in this direction by appointing Governor Ridge as the cabinet-level coordinator for homeland security. The contours of his responsibility are not entirely clear at this point, but consideration should be given to a "civilian CINC" who would be responsible for coordinating the U.S. war on terrorists. Much as the Goldwater-Nichols Defense Reorganization Act of 1986 gave increased authority to our CINCs overseas, a civilian CINC for counter-terrorism could pull together all of the various elements to respond to the war. Perhaps, like a military CINC, the various agencies should assign "forces" to him for the fight. President Bush may have intended that Governor Ridge function in this manner. In any event, I believe we need to continue to work very hard to resolve the organizational issues.
Second, our laws and regulations must be reviewed to assure that they do not foster the stovepipes that have caused so many problems in the past. For example, we know that government agencies do not share information as efficiently or as quickly as they should. In some instances, current law prevents such information-sharing. Those laws should be reviewed and changed as appropriate to foster effective information-sharing. I am pleased to see that many of the specific proposals before Congress make those changes.
In addition to legal requirements, attitudes and traditional rivalries continue to impair information-sharing. Nevertheless, it has been my experience that when U.S. officials are given a particular mission, they roll up their sleeves, share the information and get the job done. I am sure that is what has happened after this attack. It is now up to Congress to eliminate unnecessary impediments in the law that clog the machinery of government. The Executive Branch, too, must reduce or eliminate unnecessary constraints on the sharing of information.
At the same time, we must recognize that many of these rules, such as grand jury secrecy, were enacted to protect the rights of our citizens. We must find a way to accommodate the intelligence community's needs without impairing the rights of U.S. citizens.
Third, we must be as aggressive as our Constitution will permit. For example, we should examine whether the standards for conducting electronic surveillance of non-U.S.citizens within the United States to acquire foreign intelligence should be changed. Yesterday's Washington Post reports (p. A18) that the FBI wanted to initiate electronic surveillance against some of Osama Bin Laden's non-U.S. person associates in the United States prior to the attack but the Justice Department did not believe there was adequate authority under FISA to obtain a wiretap. If that's true, we should change the law.
The basic concept underlying FISA is that a warrant is required to approve electronic surveillance to collect foreign intelligence in the United States -- but that a somewhat lower standard is appropriate than for criminal purposes. FISA also distinguishes between U.S. persons and non-U.S. persons and it is, in theory, easier to obtain a warrant to collect against non-U.S. persons than U.S. persons.
I have not had time to review the recent case law on surveillance of non-U.S.persons. But I am generally aware that courts have, over time, extended more Fourth Amendment protections to non-U.S. persons. I suspect, however, that most if not all of those cases are criminal cases. I believe, therefore, that Congress should take a hard look at the standards in FISA for conducting surveillance of non-U.S. persons and consider easing the standards for obtaining warrants for electronic surveillance against non-U.S. persons for foreign intelligence purposes.
As Justice Arthur Goldberg said, the Constitution is not a suicide pact.
Consideration should also be given to changing the rules on "minimization" of information about U.S. citizens obtained in the course of electronic surveillance under FISA. It is my impression that intelligence analysts believe that valuable intelligence frequently is lost because of an overly cautious interpretation of the minimization rules.
Fourth, we will win this war -- but how we win it matters. We must not abuse the rule of law at home in seeking to enforce it overseas. We must be determined, and when necessary prepared to use lethal force. But that does not mean that we should, as somepeople have said, "throw out all the rules." The world has developed a body of law, the Law of War, governing the conduct of armed conflict. These rules are designed not only to reduce the horrors of war and to protect noncombatants, but also out of a recognition that the manner in which the war is fought should not cause future conflict by sowing the seeds of hatred.
In that respect, we need to examine each of our proposed actions with respect to the rule of law and how it will be seen by others. For example, we should not rescind the ban on assassinations. Americans are not assassins. Repealing the ban crosses a line that most Americans are uncomfortable crossing. In any event, we have been able to conduct military and intelligence activities, including some using lethal force, to accomplish our objectives in the past. Moreover, it is not an effective deterrent to terror. It often creates martyrs and heroes among the terrorists and exposes our own leaders to increased threats of assassination. Finally, when this war is over, I do not believe we want a world in which our actions have established the assassination of foreign leaders as an acceptable norm of international behavior.
Fifth, the U.S. response should mobilize all resources of the nation. In particular, the President should call upon American industry to put its genius to work to meet and defeat this threat. The President should support innovative, public/private cooperative efforts to ensure that the best minds in industry, academia and other elements of the private sector are marshaled against this national threat.
However, concerning the specific legislation currently under consideration, I believe that the Congress should make clear that with respect to increased electronic surveillance, the government will not adopt technical mandates requiring the information technology industry to build their systems in such a way as to facilitate interception, to enhance security or to control the dissemination of encryption. Instead, the government should reach out to industry and harness market forces to achieve the necessary results.
A national objective must be to assure that U.S. industry remains the world leader in these fields. Our security is much better enhanced by having American industry continue to lead rather than to face information technology and encryption produced overseas, which would happen if the United States exerts an overly heavy hand and interferes in the marketplace in the development of technology.
I also believe, Mr. Chairman, that this committee should carefully review the Administration's bill from the perspective of whether it takes into account all of the concerns raised by the intelligence community. I appreciate that the bill was very quickly pulled together and I value the need for speed. But we must be careful not only on the civil liberties side, but also on the govenunent's side. For example, I know there are concerns as to whether there has been adequate sharing of information from the law enforcement agencies to the intelligence community. There may also need to be minor adjustments to FISA to address recent or anticipated developments in technology.
For all of these reasons, it seems prudent to me to enact those provisions for which there is wide support and proceed more deliberately on other provisions.
PROPOSED LEGISLATION
Now let me turn to the specifies of the legislation.
You have asked me to consider those provisions of the bill as introduced on behalf of the Administration that are within the jurisdiction of this Committee. You have also asked me to comment on the bill introduced by the Chairman of this Committee. I have not had a great deal of time to study either bill, but I am happy to provide thefollowing preliminary comments.
ADMINISTRATION'S BILL
Turning first to the bill as introduced on behalf of the Administration, I note that Section 103 amends 18 U.S.C. 2510(7) to permit sharing of Title III wiretaps with any officer or employee of the Executive Branch of the Federal Government.
The proposed change in the statute includes no limitation as to whom it may be given. It seems prudent to limit the purposes for which such information may be disseminated within the Executive Branch, for example by limiting it to national security matters.
The analysis also says that it will harmonize Title III standards with those of FISA. However, intelligence officers have complained that too frequently the Department of Justice either refuses to share information collected under FISA or is very slow in providing it. I believe this is a more fundamental question and ought to be addressed along the lines I suggest above. I can see no reason why information collected by the Department of Justice under a FISA wiretap is not immediately made available to a relevant agency of the intelligence community. If it concerns a U.S. person, it seems to me that the Attorney General could require common minimization standards to be followed by all intelligence agencies.
Section 104 is characterized as a "savings provision," and the explanation says that it provides that collection of foreign intelligence is governed by foreign intelligence authorities rather than by criminal procedural statutes. That is a noteworthy objective, as I discuss above. However, it is not clear to me what this proposed change would accomplish. I believe more detailed explanation of the proposed changes and its consequences are needed.
Section 105 appears to codify the so-called "silver platter" doctrine; namely that when a foreign government provides information to the U.S. Government for which the U.S. Government has not asked nor had any role in collecting, the U.S. Government may use that information. However, I am troubled by the proposed language of the new Section 2514(l)(b). It would require that when a U.S. official participated in the electronic surveillance, the information collected may only be used when it "would have been lawful if executed within the United States." That may be entirely appropriate in the case of a criminal prosecution, but I do not believe such limitation should apply in acase of collection of foreign intelligence. There may also be reason to distinguish between information collected on a U.S. person - for which a higher standard might be appropriate - and a non-U.S. person.
Section 151 extends the duration of the time - to one year - that the FISA court may authorize search and surveillance in the U.S. of officers and employees of foreign powers and foreign members of international terrorist groups. This is the same provision as Section 202 of Senator Graham's bill and seems to be a sensible provision.
Section 152 expands the obligations of third parties to furnish assistance to the government under FISA, particularly when the target moves frequently to avoid detection. This is substantially the same as Section 203 of Senator Graham's bill and enhances the ability to monitor individuals who move rapidly to change the mode of their communication to avoid detection. It also seems sensible and should be adopted.
Section 153 would change the language of FISA so that it may be used where foreign intelligence is "a" purpose of the investigation, as opposed to current law which limits it to instances in which it is the sole or primary purpose of the investigation. Consistent with my views as outlined above, I believe this is an appropriate change. I believe the goveniment should have flexibility in deciding whether to initiate a FISA collection, particularly when foreign nationals are involved, as opposed to being forced into a Title III collection with its higher standards. However, the Committee should ask the Administration whether current law has limited its ability to conduct FISA in instances in which the Administration thinks it would have been appropriate. The Committee should be careful in endorsing this change because it holds out the potential that the government would seek FISA surveillance warrants - when it didn't have enough information to get a Title III order - but in which the foreign intelligence information to be obtained was remote or highly speculative.
Section 154 calls for greater sharing of foreign intelligence information held in the hands of the Department of Justice, whether in a grand jury proceeding or obtained under Title III. I believe this is an extremely important provision but note that it does not appear to be codified. I believe it should be. I also note that it is similar to Section 354 of the Administration's bill and Section 301 of Senator Graham's bill. My first impression is that this provision in the Administration's bill is the most clear. In particular, the Administration's proposal mentions Rule 6E of the Federal Rules of Criminal Procedure, which has been a significant bar to providing relevant information from Grand Jury investigations to the intelligence community.
Section 155 would eliminate the requirement that the government establish that a communications device has been used to contact "an agent of a foreign power" in order to obtain a FISA order for a pen register/trap and trace order. I believe this makes sense and should be adopted.
Section 156 would give the Attorney General the authority to seek information with an "Administrative Subpoena" for documents and records similar to the authority that he has in drug investigations. This seems to be a sensible provision.
Section 157 expands the authority of the FBI to issue National Security Letters to request certain information. Current law requires both a showing of relevance and a showing of links to "an agent of a foreign power." The elimination of this latter requirement would permit the FBI to seek information in the same fashion as with criminal subpoenas. It seems to me sensible and should be adopted.
Section 354 makes specific changes to the Federal Rules of Criminal Procedure, and in combination with Section 154 seems a sensible approach.
Although the Committee does not have jurisdiction over Section 110 of the Administration's bill, I have one comment that I believe the Committee should consider and perhaps recommend to the Judiciary Committee. That section amends Title 18 so that a provider of telecommunications and services, including ISPs, could provide information to a governmental entity, including the contents of the communication, if the company "reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." Companies ought to be encouraged to provide such information to the government in such circumstances. However, I note that there is no immunity for a company that makes such a disclosure. There is such proposed statutory immunity in Section 158, which provides for disclosure of educational records. That section provides "no person furnishing records or information pursuant to this subsection shall be liable to any other person for furnishing such information." I suggest that a similar provision be considered to protect those companies who voluntarily provide information on individuals to the government as provided under Section 110.
CHAIRMAN GRAHAM'S PROPOSAL
Turning to the bill suggested by the Chairman, I have the following comments.
Section 101 would add a new provision to the responsibilities of the DCI to "establish requirements and priorities for and manage the analysis and dissemination of all foreign intelligence collected under FISA." My inclination is that this is a good idea in that it would authorize the DCI to take a greater role in the use of FISA to collect and analyze foreign intelligence. However, I believe that the views of the DCI should be sought and carefully considered. It is important that the authority of the DCI be sufficient to assure that FISA collection is done in an efficient manner to support the collection of foreign intelligence but without giving the DCI excessive authority to direct the use of electronic surveillance in the United States.
Section 102 revises the National Security Act to make it clear that the DCI has particular responsibilities for international terrorism. Again, I believe this is a good change, as there has been considerable debate within the Executive Branch as to primacy for the collection, analysis and dissemination of information on international terrorism. This is a welcome change.
Section 103 would add a provision to the National Security Act stating that an officer of the intelligence community "may establish and maintain an intelligence relationship with any person for purposes of acquiring information" on a variety of terrorist targets. This is clearly aimed at assuring that case officers in the field will be encouraged to take the necessary risks associated with recruiting a human source in a terrorist organization, even when that individual may have committed murder or engaged in other serious human rights abuses or criminal activities.
The current guidelines were adopted by the CIA in 1995 because of concerns expressed widely in the press and the Congress that the Agency had dealt with such individuals. The guidelines adopted a simple test: Does the value of the intelligence that the individual could provide outweigh the risks to the United States that would be associated with dealing with this individual? The guidelines have two purposes. First, to assure that Headquarters make an informed decision to authorize the recruitment of such an individual. The view was that the balancing test should be done at Headquarters, not in the field. The second purpose is to protect the officer involved. Once approval had been granted from Headquarters, the officer has a "hunting license" and is free to proceed, knowing that he or she had the full backing of Headquarters. This latter point was particularly important because in the mid-90's several officers were under investigation by Congressional committees, the PFIAB, the CIA/IG, and, in some instances, criminal grand juries. Many officers, as this Committee well knows, felt it necessary to purchase personal liability insurance on their own to cover the costs of hiring outside counsel to defend themselves from the various investigations. I thought then, and think now, that no CIA case officer should ever have to purchase such insurance out of his or her own pocket.
I understand that many officers in the field believe that these guidelines are a hindrance to recruiting sources in terrorist organizations. I also understand that CIA Headquarters maintains that the guidelines do not hinder the recruiting of sources who could provide valuable intelligence in these organizations. It is therefore difficult to know where the truth is. However, it is clear that there is a perception in the field that these guidelines inhibit recruiting. CIA case officers must know that they are encouraged to take risks and that when they do so, they will be backed up by CIA Headquarters, the rest of the National Security establishment, and the Congress.
Therefore, these guidelines should be carefully reviewed by the DCI and his top leadership team, and if they are in fact inhibiting recruiting in the field, they should be changed.
I do have reservations about Section 103 of this bill. First, it provides that an officer may maintain a relationship only "for purposes of acquiring information." Thus, if an officer had a relationship with a source inside a terrorist organization, this language would limit our ability to direct that officer to use that relationship to disrupt a terrorist organization, for example by feeding misinformation to his source or by using his source to support a covert operation that would be designed to disrupt or destroy the terrorist organization. Second, it raises questions about CIA case officers dealing with persons inother groups, such as international organized crime or international narcotics organizations, that enjoy no similar provision.
On reflection, I think the Congress could usefully order the Director of Central Intelligence, perhaps in conjunction with PFIAB or some other outside organization, to conduct a careful review of these guidelines and, if they are in fact hindering the recruiting efforts in the field, they should be changed accordingly.
Section 104 defers submittal to Congress of certain reports and will surely be most welcome.
Section 201 amends FISA to exclude from the definition of interception an instruction or signal that is given to operate an electronic device. That seems a sensible provision and should be adopted.
Sections 202 and 203 are analogous to Sections 151 and 152 in the Administration's bill and, as noted above, should be adopted.
Section 204 seeks to clarify the relationship between Title III and FISA wiretaps. The consequences of this provision are not immediately clear but it does not seem sensible to me to have a situation in which two collections efforts are being mounted in parallel.
Section 301, as discussed above, is designed to assure that the intelligence community is given access to information held by the Department of Justice. This is a commendable objective but my inclination is to favor the provisions in the Administration's bill, as they seem more clear.
Sections 302, 303 and 304 also make reasonable and thoughtful changes to existing law and should be adopted.
Mr. Chairman, in conclusion let me repeat how honored I am to address these issues, and I look forward to answering the Committee's questions.