S. Hrg. 107-449
S. 1448, THE INTELLIGENCE TO PREVENT
TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE
SEPTEMBER 11, 2001 ATTACKS
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
S. 1448 THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS
__________
MONDAY, SEPTEMBER 24, 2001
__________
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SELECT COMMITTEE ON INTELLIGENCE
.........................................................
ONE HUNDRED SEVENTH CONGRESS
----------
BOB GRAHAM, Florida, Chairman
RICHARD C. SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan JON KYL, Arizona
JOHN D. ROCKEFELLER IV, West JAMES M. INHOFE, Oklahoma
Virginia ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California PAT ROBERTS, Kansas
RON WYDEN, Oregon MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois FRED THOMPSON, Tennessee
EVAN BAYH, Indiana RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
BARBARA A. MIKULSKI, Maryland
THOMAS A. DASCHLE, South Dakota, Ex Officio
TRENT LOTT, Mississippi, Ex Officio
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Alfred Cumming, Staff Director
Bill Duhnke, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
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Page
Hearing held in Washington, DC:
Monday, September 24, 2001................................... 1
STATEMENTS
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 1
Rockefeller IV, Hon. John D., a U.S. Senator from the State of
West Virginia, prepared statement.............................. 6
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama 4
WITNESSES
Berman, Jerry, executive director, Center for Democracy &
Technology..................................................... 54
Prepared statement........................................... 48
Divoll, Vicki, General Counsel, Select Committee on Intelligence;
accompanied by Steven Cash, Counsel, Select Committee on
Intelligence................................................... 6
Halperin, Morton H., chair, Advisory Board and Kate Martin,
director, on behalf of the Center for National Security
Studies, prepared statement.................................... 56
Kris, David, Associate Deputy Attorney General, Department of
Justice; accompanied by: Larry Parkinson, General Counsel,
Federal Bureau of Investigations............................... 16
Martin, Kate, director, Center for National Security Studies..... 63
McNamara, Jr., Robert, General Counsel, Central Intelligence
Agency......................................................... 17
Smith, Jeffrey H., partner, Arnold and Porter.................... 46
Prepared statement........................................... 41
S. 1448, THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS
----------
MONDAY, SEPTEMBER 24, 2001
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The committee met, pursuant to notice, at 3:05 p.m., in
room SH-216, Hart Senate Office Building, the Honorable Bob
Graham (Chairman of the Committee) presiding.
Committee Members Present: Senators Graham, Rockefeller,
Feinstein, Wyden, Durbin, Bayh, Edwards, Mikulski, Shelby, Kyl,
DeWine, Thompson, and Lugar.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE
STATE OF FLORIDA
Chairman Graham. I call the meeting to order.
This meeting of the Senate Select Committee on Intelligence
is for the purpose of hearing testimony on legislation that was
introduced on Friday relative to law changes as it relates to
American intelligence and counterterrorism.
The horrific events of September 11 demonstrate America's
vulnerability to international terrorism. But the warning signs
of our vulnerability have been evident for some time--the
bombing of the U.S. Embassy and the Marine Barracks in Beirut
as long ago as 1983; the 1993 bombing of the World Trade
Center; the 1996 bombing of Khobar Towers in Saudi Arabia; the
1998 bombing of the U.S. Embassies in Kenya and Tanzania; and
last year's terrorist attack against the U.S.S. COLE in Yemen.
These and other terrorist incidents have made it
increasingly important for the Senate Select Committee on
Intelligence to focus on the adequacy of the Intelligence
Community's response to the terrorist threat.
Our Committee has called this hearing today to discuss with
government officials and outside experts and civil libertarians
the provisions of S. 1448, The Intelligence to Prevent
Terrorism Act of 2001, which Senator Feinstein and I introduced
last Friday, along with co-sponsors Senators Rockefeller, Bayh
and Nelson of Florida. We will also address today selected
provisions of the proposal which was sent to the Congress by
Attorney General John Ashcroft on Wednesday, September 19. The
Attorney General provisions we will address today are those
that fall within the jurisdiction of the Intelligence
Committee.
A number of panels and commissions in recent years all have
made clear that any effort to improve the governmentwide
approach to terrorism must take into account every facet of the
issue--detection, prevention, consequence management, crisis
management, and law enforcement, diplomatic and military
responses. We, as a government, need to address these issues in
a coordinated fashion so that priorities may be set, resources
allocated, and government structures changed, if necessary, to
serve that overall strategy. A counterterrorism intelligence
program must be designed within that larger context of a
government counterterrorism program. We must have a centralized
authority for managing the intelligence components of that
counterterrorism policy. The Director of Central Intelligence
needs to perform that intelligence role for the U.S.
Government.
In the wake of the September 11 incidents, we must begin to
act on myriad aspects of this problem. Accordingly, last
Friday, in addition to the legislation I have already
referenced, I introduced another bill, S. 1449 which creates a
National Office for Combating Terrorism within the White House.
Senator Feinstein and I and others have been working on this
proposal for several months. We believe, along with the other
co-sponsors--Senators Rockefeller, Durbin, Mikulski, Bayh, and
Nelson of Florida--that for a coordinator of the forty-plus
Federal agencies that must play a role in counterterrorism that
the office should be with the following characteristics.
It should be created in statute so as to support the
Legislative and Executive branches. It should have a Senate-
confirmed director so that he will have the stature appropriate
for the position and should have budget authority over that
portion of the various agencies' budgets which relate to
counterterrorism so that the director can set priorities and
allocate the resources appropriately against those priorities.
And finally, the director should examine the overall structure
of the U.S. Government to deal with terrorism prevention and
response and, if necessary, recommend restructuring or merging
of agencies and functions.
We believe that the President's Executive order was a
significant step forward to achieve these objectives, and that
the President's selection of Governor Tom Ridge is an excellent
choice to coordinate this enormous and critical effort by the
U.S. Government. We want to give him the authority and the
tools he needs to be successful.
In this hearing today we will not be discussing the
National Office for Combating Terrorism. The Committee will
have hearings on that bill in the near future in conjunction
with the other committees of jurisdiction, such as the Senate
Committee on Governmental Affairs.
Today we want to focus on the issues that are most critical
for immediate resolution by the Congress. The Attorney General
has urged expedited attention to his series of proposals. Our
action today and the Judiciary Committee's hearing tomorrow,
which will focus on those matters in its jurisdiction, are
indicative of the close collaboration between the
Administration and the Congress on these critical issues.
The bill that we will discuss today includes a number of
statutory provisions relating to clarifying the authorities of
the Director of Central Intelligence to combat terrorism;
updating the laws governing electronic surveillance to collect
foreign intelligence so as to improve collection against
international terrorist targets; and enhancing the ability of
law enforcement and intelligence agencies to share critical
information relating to the plans and intentions of terrorists.
This legislation represents the culmination of months of
effort by many Members of this Committee and other Members of
the Senate. I would like to particularly recognize Senator
Feinstein and Senator Kyl for the effort that they have
invested in this legislation.
My colleagues and I are committed to the substance of these
provisions because we believe that they enhance intelligence
collection without unreasonably diminishing our civil
liberties. We welcome the comments from the witnesses today to
help us ensure that the language of these provisions will
accomplish both of those goals. We hope that the experts at the
Justice Department, FBI and CIA will work with our staff to
make certain that we have drafted these provisions in an
effective manner.
In addressing these issues, we must be mindful that the
terrorist threat to the United States is not a crisis; it is a
cancerous condition which we will have to deal with over an
extended period of time. Many people liken the war that we are
now commencing against terrorism to the war that we have been
waging over the past three-quarters of a century against
organized crime. Much of the progress we have made in the war
against organized crime is a direct result of changing laws to
enhance our abilities to deal effectively with this long- term
scourge. In a similar fashion, the legislation that we are
considering today would allow us to more effectively deal with
terrorism as a long-term threat.
Many of the proposals in our bill deal with electronic
surveillance to collect foreign intelligence inside the United
States, as authorized under the Foreign Intelligence
Surveillance Act of 1978. This bill will bring those collection
capabilities into the 21st century. Wiretapping laws relating
to criminal collection, as contrasted to foreign intelligence
collection, have already been updated in many respects. This
bill applies the same Constitutional and civil liberties
protections in the Foreign Intelligence Surveillance Act
context that we are currently applying in the criminal context.
Vicki Divoll, our Committee's General Counsel, will walk
through provisions of the bill in a moment.
Later we will be asking our witnesses for their views on
both the provisions of S. 1448, as well as select provisions of
Attorney General Ashcroft's proposed legislative program which
are relevant to the Intelligence Community.
After Ms. Divoll has completed her outline of the
provisions in S. 1448, we will turn to our first panel. But
first Vice Chairman Shelby.
OPENING STATEMENT OF HON. RICHARD C. SHELBY,
U.S. SENATOR FROM THE STATE OF ALABAMA
Vice Chairman Shelby. Thank you. Thank you, Mr. Chairman.
Thank you for calling this hearing. Mr. Chairman, Members of
the Committee, I have a few observations.
For many years, this Committee has been emphatic regarding
the critical importance of our intelligence apparatus. It is
our first line of defense in the war against terrorism and it
could be our first line of offense.
Granted, there are some things that we can do in the short
term to improve our ability to address this threat and I
believe we will do them. We have already provided additional
funds and we will grant, I believe, the executive branch new
legal authorities through legislation that we are discussing
today.
There is a more fundamental problem, however, that cannot
be fixed by quickly drafted legislation or emergency funding.
Our current national security structure is a legacy of the cold
war. The Department of Defense and the Intelligence Community
were organized to counter the Soviet threat and they remain in
essentially the same form today. The failure of our national
security institutions to transform and adapt is a direct result
of nearly a decade of inaction and neglect in light of a
dramatically changing world situation.
Changing circumstances, as we all know, demand a change in
strategy. If we fail to develop a comprehensive national
strategy to achieve clear objectives, there is no chance of us
organizing our Government to defeat successfully the terrorist
threat.
Our Nation derives its guiding principles from the
Declaration of Independence and the Constitution. Our Federal
Government, in accordance with these guiding principles,
develops its objectives and strategic plans in light of the
current world situation.
After World War II, the United States faced an entirely new
world situation. We went from a relatively isolated and
disengaged player on the world stage to the central figure in a
global clash between freedom and communist tyranny. Just as the
growing Soviet menace and its developing nuclear capability
gave rise to President Truman's reexamination of our national
objectives and national security strategy, so must the attacks
on New York and Washington give rise the to same type of
examination.
The result of Truman's reexamination was a document--NSC-
68--that formed the basis of our national security strategy and
our plans to achieve it for nearly the next half century. The
Soviet Union subsequently collapsed not only because it was
fundamentally corrupt, but because the United States had a
clear purpose and vision of its place in the world and a plan
to achieve it.
I believe we now need that same type of vision and a plan.
There have been many commissions, studies and reports on every
aspect of our national security policies and structure. But,
they all have operated in the same vacuum created by the lack
of any clear statement of our national purpose in the post cold
war world.
The President has already begun the reexamination and taken
some very important steps. Now, I believe, he needs to
memorialize his vision and assign responsibility and organize
the Federal Government to achieve our national objectives.
Why is this important for the Intelligence Community? We
all know very well the debilitating effects that turf battles
and parochialism can have on our ability to organize and
accomplish anything at all. These same maladies have often
paralyzed the Intelligence Community. The Intelligence
Community is still organized in tightly controlled ``stove-
piped'' organizations that often refuse or are unable to share
information with each other for any number of reasons.
The new threats that we face require an intelligence
organization that is organized and managed in a manner that
recognizes its fundamental purpose. That purpose is to collect,
analyze and disseminate information. Our intelligence apparatus
is first and foremost an information enterprise. Any effective
information enterprise by definition must be networked, be
interactive, agile, flexible and focused.
The agencies and elements of the Intelligence Community are
anything but agile. They are often paralyzed by their
bureaucratic structure. Perhaps the rigid structure was
appropriate for monitoring the Soviet Union, but I believe it
is antithetical to meeting today's threats. It is particularly
ill suited for using modern information technology.
The classic bureaucracy is designed to limit interaction
between its people. We will never be able to defeat the
terrorist threat without the ability to share rapidly all
sources of information on terrorist activities and then take
decisive action.
As we saw in the bombing of the U.S.S. COLE, we may not get
specific tactical warning. But, we may be able to formulate a
clearer picture of the threat if our analysts have access to
every available piece of information and are allowed to
synthesize and disseminate this information. This type of
interactive and dynamic community is possible if we have strong
leadership guided by a clear vision. But, it will take time,
and we don't have time.
I believe that we need to embrace an unconventional
approach. The terrorists think unconventionally. We need new
thinking and new people looking at this problem. We need our
country's most talented and capable people leading the effort.
The old ways, I would submit, have failed us time and again
in the new threat environment that we're in today. The examples
continue to grow. We all know we've had some successes, but
let's talk about the problems--the attack on Khobar Towers; the
first attack on the World Trade Center; the attack on the
U.S.S. Cole; the attacks on our embassies in Africa; and the
attacks on September 11.
We have shed enough blood and squandered enough treasure.
We need a rapid response. And, I'm afraid that the calcified
bureaucracies of our national security institutions are not
capable of rapid change. I believe we need to start over with a
national commitment of talent and resources much like
President's Kennedy's effort to take us to the moon. We need an
action-oriented approach where success is measured in the
amount of terrorist cells destroyed or disabled, not on how
many reports are issued.
I don't know if this new approach will spawn a new
organization, but we must begin to think, as we say, outside
the box. The answers to this problem are out there and we need
to bring them in, nurture and support them and let them
flourish undeterred by the stranglehold of government
bureaucracies. Our Intelligence Community, as presently
constituted, is virtually incapable of such an effort. As we
learned on September 11, the threats are immediate as must be
our response.
We can talk about legislative fixes and appropriating more
money to feed our failed institutions. I've done some of both.
What we cannot do is continue to ignore our limitations and our
vulnerabilities. If we fail to marshal our Nation's collective
talents and resources behind this effort, we are just waiting
for the next attack.
Thank you, Mr. Chairman.
Chairman Graham. Thank you, Mr. Vice Chairman.
[The prepared statement of Senator Rockefeller follows:]
Prepared Statement of Senator John D. Rockefeller IV, U.S. Senator
from West Virginia
Thank you Mr. Chairman. I am grateful for the leadership you have
shown over the past 2 weeks as the Congress and the American people
have struggled to come to grips with the consequences of the September
11 attacks. The legislative package you and Senator Feinstein
introduced on Friday is just one example of that leadership. You have
also provided the kind of measured, temperate analysis of the situation
that has helped reassure the American people that the Congress is not
only aware of the problems we face, but is working expeditiously to
implement meaningful and well thought out solutions.
Your legislation is an example of that forward looking, measured
approach. This Bill, S. 1448, is the product of several months of work.
I know you and your staff have reached out to other relevant Committees
in the Senate and have shared language and held discussions with the
Administration on all of these provisions. This effort, along with the
priorities you have set for the Intelligence Committee and the funding
included in the annual Intelligence Authorization Bill, provides the
groundwork to have a meaningful impact on intelligence collection
against terrorists.
The challenge we have now is to evaluate each of these proposed
changes, not as a response to recent events, but for how they will help
our intelligence and law enforcement communities deal with terrorism in
the long term. As we bolster those efforts to protect America from
terrorist attacks, we must make sure we do not sacrifice civil
liberties for short term security. Changes we make in the next few
weeks will be with us long after we have vanquished Osama bin Laden.
Therefore, those changes must be consistent with our underlying values.
Chairman Graham. Ms. Divoll.
STATEMENT OF VICKI DIVOLL, GENERAL COUNSEL, SENATE SELECT
COMMITTEE ON INTELLIGENCE; ACCOMPANIED BY: STEVEN CASH,
COUNSEL, SENATE SELECT COMMITTEE ON INTELLIGENCE
Ms. Divoll. Thank you, Mr. Chairman, Mr. Vice Chairman. I'd
like to introduce Steve Cash, who is also a counsel on the
Committee and works on counterterrorism issues for the
Committee.
I'm just going to walk through briefly the provisions in
the Graham-Feinstein bill, S. 1448. I'll start with title I,
Clarification of Authorities of the Director of Central
Intelligence.
Section 101. The purpose of that provision is to put the
DCI in his Intelligence Community hat, not his hat as head of
the CIA, this Intelligence Community role in a position to
manage the information collected under the Foreign Intelligence
Surveillance Act. Currently the DCI manages the strategies for
collecting using every other tool available to him. The FISA
tool is a critical tool used inside the United States, but it's
a critical tool for collecting foreign intelligence.
The provision is designed to put the DCI at the very front
end and the very back end of that process. Operational efforts
would still be conducted by the FBI, because this is a domestic
activity. The specific targeting would be done by the FBI. But
the DCI would perform with respect to FISA the same function he
performs in other areas, which is to set an overall strategy
for how this valuable resource should be used, how it should be
allocated, how it should be prioritized, and how it would fit
in with the rest of the collection--would it be redundant,
would it be in addition to the other types of collection that
we have.
So he would be responsible for setting those priorities and
providing a strategy to the FBI for them to use in implementing
that strategy.
He would also find himself at the end of the process. As a
Vice Chairman mentioned, all the information collected of
foreign intelligence value has to get to the analysts and has
to be analyzed as part of all the information coming in and has
to then be processed and make it to the policymaker/consumer so
they can act on it.
FISA needs to be part of that process, and this would put
the DCI in charge of making sure that the information is
tracked to the proper analysts, is analyzed and makes it into a
disseminated product to the community. We feel that that's an
important role for him to play.
The second provision is more of a technical change but also
important in the sense that in looking at the definitions of
the National Security Act of 1947 you see that the definition
of counterintelligence includes international terrorism, but
the definition of foreign intelligence does not. The purpose of
this provision is to clarify that. The purpose is not to
rearrange the responsibilities between the FBI and the CIA with
respect to collection and activities. The purpose is to clarify
in the law that of course the DCI has a role in international
terrorism overseas.
As you play out the National Security Act through its
provisions, we want to make sure that that is clarified in the
law.
Section 103 is an attempt to deal with the much-publicized
issue of recruitment of terrorists who have unsavory pasts,
whether it be violent crimes or human rights abuse. Everyone
seems to acknowledge that those are the types of people who
would be most helpful in this effort to collect information,
human source intelligence information. But there is a fear that
the regulations at the Agency, the CIA, have a chilling effect
on efforts in the field to recruit those types of people.
The effort here is to clarify in law, if the Congress
accepts this provision, wants to send a message to the field
that this is lawful, to recruit such people and establish
relationships with them. This provision does not attempt to
dictate to the DCI or the Executive branch what types of
approval processes they need to have to make sure the officers
do their work appropriately. It merely is designed to State in
law that this is a lawful activity.
Section 104 is an attempt to give a break to the
intelligence agencies who prepare so many reports for Congress
on intelligence matters. Given that they are busy with other
things now, we thought we would give them an extension until
February 1 and they can have an extension beyond that if they
certify to the Committee that the people who prepare those
reports are working on counterterrorist matters.
Title II deals with several aspects of electronic
surveillance. Section 201 is meant to deal with the definition
of communications under FISA. The purpose of this provision is
to carve out of that definition communications that aren't
really content-based, that wasn't intended when the provision
was enacted to be part of the FISA process.
These would be the types of communications where, for
example, a hacker tells his computer to tell another computer
to do something or not do something. One example we've given is
if a hacker in a foreign country communicated with the computer
of the Hoover Dam, for example, and told it to open the flood
gates, that type of communication is not content based and
really has no purpose in requiring a FISA order. So the FBI
would be able to collect that type of communication without
having to get a FISA order.
Sections 202 and 203 are both provisions that we've had in
this bill for some time but that are also part of Attorney
General Ashcroft's package. Section 202 speaks to the duration
of surveillance and physical search orders under FISA against
non-U.S. persons, including terrorists operating as agents of
foreign powers inside the United States. The current law
requires the Department of Justice to renew those applications
every 90 days for electronic surveillance and every 45 days for
physical searches. This provision would extend both of those to
1 year and would hopefully free up the lawyers at the
Department of Justice and the FBI also to work on new FISAs
rather than having to constantly go back and renew old FISAS.
Section 204 is a provision that clarifies in law that
Foreign Intelligence Surveillance Act collections can occur
simultaneously with title III collections in the criminal
arena. This would say that there are two courts that deal with
those. The prosecutors would have to make the showing required
under title III for a criminal wiretap, and the FISA lawyers
would have to make the showing to the FISA court that it meets
the standards of FISA.
In some cases it makes sense, if the lawyers decide that it
does, to do both, and as long as both standards are met, both
courts approve it, we felt it was useful to clarify that in the
law.
Title III is entitled----
Senator Feinstein. Mr. Chairman, excuse me. She skipped
section 203, which I think is an important section.
Ms. Divoll. Oh, thank you, Senator, yes.
That is a provision that is also in the Ashcroft proposal.
This is a provision that tries to get FISA up to date with the
criminal context. In criminal wiretap law there is something
called a roving wiretap that's been accepted as an appropriate
approach. This would allow that same type of targeting to be
done under FISA. If it's a situation where a terrorist target
is trying to defeat the collection against him by throwing away
a phone and picking up a new phone or moving or whatever method
he would use, this would allow that FISA to continue on to the
other technology rather than having to be re-applied to the
FISA court.
Thank you, Senator.
Section 301. In law currently there is a requirement that
officers in the intelligence community agencies in the course
of their duties, if they come across evidence of a crime, a
U.S. crime, they are required by law to report that to the
Attorney General. There's an elaborate process in the agencies
to do that. This would be in a sense a reverse crimes reporting
requirement.
This requires law enforcement officers in the course of
their duties, if they come across foreign intelligence
information, they would also have a duty to provide that to the
DCI, again so that all-source reporting, all of the information
available to the U.S. Government is used properly and
effectively to counter this threat and other threats.
Section 302, the Foreign Terrorist Asset Tracking Center.
This is a reporting requirement. It's not a mandatory
requirement. It asks the DCI, the Director of Central
Intelligence, and the Secretary of Treasury to work together
and by February 1 come up with a proposal to implement in the
Department of Treasury or wherever they see fit an operation
that would track terrorist financial
networks and transactions and provide that information to the
Intelligence Community, which would hopefully provide valuable
information about relationships within terrorist groups and the
communications among them and the transfers of money. So that's
required as a report by February 1.
Section 303 is the National Virtual Translation Center. One
of the key problems that's been highlighted by many is the fact
that we collect vast amounts of intelligence, both technically
and with human sources, and that we don't have the capabilities
to translate that quickly and efficiently get it to the
analysts and the operators in the field who need it.
This provision would require the establishment of a center
that really is not a bricks and mortar kind of thing. It's a
virtual center that would link up, through a secure data base,
the vast translation resources available in our country. People
who live in different parts of the country and have unusual
translation and language capabilities could be hooked up, the
information could be put in a data base after it's collected,
sent to them They would process it, put it back in the data
base. It gets to the analysts and ultimately to the consumer in
an efficient way.
Section 304 is a training provision that we think augments
many of the other provisions that I've spoken about. It
provides for training of Federal, State and local officials who
may come across in their duties foreign intelligence
information but wouldn't know how to recognize it. They would
be trained to know what to look out for and who to call to get
it into the Federal Government's hands.
It also would train them to be better consumers of
intelligence so in the event of a crisis such as the one we
just had, when the Federal Intelligence Community reaches out
to State and local they will have a point of contact and a
frame of reference and be speaking the same language. So that's
the purpose of that provision.
Thank you.
Chairman Graham. Are there any questions of Ms. Divoll?
Senator Shelby.
Vice Chairman Shelby. Ms. Divoll, did you go into section
103? You mentioned that, did you not?
Ms. Divoll. Yes.
Vice Chairman Shelby. This deals with the establishment and
maintenance of intelligence relationships to acquire
information on terrorists and terrorist organizations. With
respect to section 103 of this legislation, under applicable
law and current CIA guidelines who can our intelligence
officers recruit?
Ms. Divoll. The intelligence officers recruit those that
they feel are appropriate to meet the requirements they have
been given, and then there's an elaborate process within the
Agency to vet those recruitments and approve them up through
the chain of the Agency.
Vice Chairman Shelby. Does section 103 present any
separation of powers issue? If so, how do you resolve them in
favor of the legislative branch?
Ms. Divoll. Well, that's a good question.
Vice Chairman Shelby. I guess the first question is, do
they present any separation of powers issues?
Ms. Divoll. I don't think so, Senator. One approach
recommended by some to deal with these regulations within the
Agency--these are classified regulations but essentially
they're an approval process to make sure that those who would
be recruited who have difficult pasts, that there's enough
approval process up the chain to balance the risks of working
with someone like that against the gains.
To just rescind those regulations by statute I think would
present separation of powers problems because you are
essentially telling the Executive branch what to do in their
own internal approval processes.
Vice Chairman Shelby. We would be telling the Executive
branch what to do and how to do it.
Ms. Divoll. Yes, Senator. We thought that this didn't quite
go that far and this just states in law that this type of
recruitment is lawful and doesn't attempt to tell the Executive
branch what types of approvals they would need to make sure
that it's done properly.
Vice Chairman Shelby. But the Executive branch on their own
could change that as they changed it one time before.
Ms. Divoll. Yes, Senator.
Vice Chairman Shelby. I'd like to ask, Mr. Chairman, Mr.
Cash a question if I could on section 303, the National Virtual
Translation Center. My question concerns the establishment of
this center.
Mr. Cash, as a former intelligence officer, you know how
important language skills are in the gathering, analysis and
dissemination of intelligence. Could you elaborate on what this
center would do? In other words, how would it assist us in
preventing the next terrorist attack?
Mr. Cash. Mr. Vice Chairman, if I could answer that
question with an example, if an intelligence officer sitting at
Langley acquires, through whatever means, a document in a
language like Urdu, the only Urdu translator who may be
available right then, that day, may be living in Seattle. It's
going to be very hard to fly him to Washington and it's going
to be hard to take the document to Seattle.
The idea of the National Virtual Translation Center is that
these resources would be linked through an internet-like
mechanism, secure of course, which would allow the translation
to take place in Seattle, the intelligence officer in Langley
to read the results, perhaps share it with a colleague in
London or France or some other country, and then maybe with an
FBI agent in New York, all in near-real time, all without
moving any human beings anywhere.
So instead of having to wait days to translate and read
critical information, it could be minutes.
Vice Chairman Shelby. I like the idea and I could see how
it could work. Is there a projected cost for this center? As an
appropriator, I wondered if you had talked to Senator Inouye or
Senator Stevens about this.
Mr. Cash. The intention here is that, given the guidance
that this statute would contain, that the DCI in his community
role would take a look at this problem, with the general
guidance we've given him, which is we would like you to
establish such a center, and then would be able to come back to
the Congress in a relatively short amount of time and say this
is what it takes to get it done, this is how much money I will
need to get it done, and this is how long it will take.
Vice Chairman Shelby. What you'd be doing really, in a
sense, is utilizing the latest technology to take advantage of
any weapon deficiencies you might have.
Mr. Cash. That's exactly it--Napster for spies.
Vice Chairman Shelby. Thank you, Mr. Chairman.
Chairman Graham. Thank you.
Senator Edwards. Mr. Chairman.
Chairman Graham. Senator Edwards.
Senator Edwards. Ms. Divoll, I wonder if you would, for all
of our purposes, contrast the provisions in this legislation
with respect to information-sharing between the FBI and the CIA
with the Administration's proposals and comment on why your
legislation is different.
Ms. Divoll. Certainly, Senator. There are some differences
and there are some similarities. The Administration's package
includes express changes in title III and rule 6(e) of the
Federal Rules of Criminal Procedure to make certain that
information collected in those ways can make it to the
intelligence community. It's optional, but it would remove an
impediment in law that now exists and open that up to possible
sharing.
The Administration bill also has a provision that is a
catch-all that catches everything else other than 6(e) and
title III and says everything else also collected in the
criminal context can be passed.
Our provision, section 301, goes a little further in one
respect. In current form it says ``in accord with other
provisions of law'' this information may be shared. If the
title III and 6(e) provisions of the Ashcroft proposal are not
enacted, then that type of sharing would not happen under
section 301 because it would be otherwise prohibited by law.
If they are enacted, then this provision says that all such
information, all such foreign intelligence information, 6(e),
title III and all other--whether it be an FBI interview or
collected in some other way--must be shared. It doesn't give
them discretion.
Senator Edwards. One other question, Mr. Chairman.
Chairman Graham. Let me just mention that the first witness
on the first panel will be Mr. David Kris, Assistant Deputy
Attorney General at the Department of Justice, who will provide
us with the same analysis of the Attorney General's provisions
as they relate to the jurisdiction of this Committee, as Ms.
Divoll has just done for 1448.
Senator Edwards.
Senator Edwards. Thank you. This is another question for
Ms. Divoll. Under current law FISA procedures can only be used
when the primary purpose, ``the'' purpose, is foreign
intelligence gathering. The Administration has proposed that
``the'' be changed to ``a,'' as I understand it, which would
mean that it has to be a purpose, not the primary purpose.
That provision is not in this legislation; is that correct?
Ms. Divoll. It's not.
Senator Edwards. I wonder if you could comment on why it is
not included.
Ms. Divoll. Well, we've had the Ashcroft proposals just for
a few days now, and these proposals we've worked on for some
months. I think that it's fair to say that the Ashcroft
proposals, coming after September 11, have sought to really go
quite a bit further than we felt we would be able to go in this
provision, and we haven't looked at that provision with the
Chairman to determine whether it would be a good change or not.
We're still working on that.
Senator Edwards. Have you done any work yet on the question
of the constitutionality of making that change and broadening
the FISA procedures? As I understand it, one of the reasons
that they have withstood constitutional muster up until now is
because of the limitation to foreign intelligence gathering.
Ms. Divoll. Yes, Senator. I don't pretend to be an expert
in the courts that have reviewed FISA, but I think it is safe
to say that if you make a fundamental change in FISA it is
possible that the courts would feel they would need to take a
second look and make sure that it meets constitutional muster.
Senator Edwards. My only comment would be I think many of
us believe that the expansion of some of these authorities is a
very good idea, but I think we need to make certain that we're
doing it within the framework of what's constitutionally
permitted.
Thank you, Mr. Chairman.
Chairman Graham. Senator Durbin, then Senator Kyl, then
Senator Bayh.
Senator Durbin. Thank you very much. Thank you for the
presentation.
A lot of attention has been directed toward section 103 and
the so-called question of dirty assets and the regulations that
were issued by the CIA in 1995, as I understand it requiring
field officers to obtain prior CIA headquarters approval before
establishing a relationship with an individual who has
committed serious crimes, human rights abuses or other
repugnant acts.
If I recall our earlier conversation, the situation that
gave rise to this was in Guatemala, where some of the people
whom we were working with turned out to have been involved in
the assassination and killing of Catholic priests and nuns,
which gave rise to this new regulation requiring headquarters
approval.
If you can answer this, can you tell me, since the
enactment of these regulations in 1995, has the Agency ever
turned down a field request to recruit an individual in a
terrorist organization or in any way avoided contact with
individuals, regardless of their past, who may have had
information about terrorist activities?
Ms. Divoll. Senator, when the Bremer Commission on
Terrorism came out with their recommendation a few months ago
recommending rescinding of these internal CIA regulations, the
Agency came forward publicly and answered that question and
said that no proposal to recruit someone with human rights or
other problems who had valuable information on terrorism and
terrorist targets, none of those had been turned down.
The approval process can be very prompt and efficient,
particularly if there is a sense of urgency, and I think people
in the Agency believe that it has done a good job of balancing
the need to work with such people against the risks of working
with such people.
Senator Durbin. I don't know if you can answer the second
question, but it will be my last one. Is there a belief that
these regulations have had a chilling effect on people in the
field in terms of those that they seek to recruit for fear of
these regulations or a negative response from headquarters?
Ms. Divoll. I think some believe that the people in the
field feel that way. Some of the people in the field report
that to Senators when they are on trips. Others of them,
particularly those who work exclusively in the counterterrorist
area I think say ``no.'' I think they feel that this is their
mission, this is their duty, and that it would be career-
enhancing, if you will, to make such a recruitment. So there is
controversy on that.
The purpose of this provision was to make sure that, to the
extent anyone feared Congress's reaction to those types of
recruitments that we said clearly in law that it's appropriate
and desirable.
Senator Durbin. Thank you. Thanks, Mr. Chairman.
Chairman Graham. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I needed to ask this
question now. It may be appropriate for the next panel too, but
I have a commitment from 4 o'clock to 5 o'clock that was made
before this hearing was scheduled that I must honor.
So let me ask this panel first. This is really the reverse
side of what Senator Edwards asked earlier. Under domestic law,
law enforcement agencies can use pen registers and trap and
trace devices to capture so-called peripheral data associated
with a telephone call. The Supreme Court has ruled that that is
fine, that there is no reasonable expectation of privacy in
just the mere fact that one person called another. The actual
communication is all that's protected. In other words, the
telephone number or fact of the call is not.
My understanding under FISA is that the existence of the
call or the data exchange is termed a communication that must
be protected from electronic surveillance. Did you look at the
possibility of altering that to conform it to domestic law and,
if not, is there any reason that you know of why under FISA the
digital or peripheral data associated with a call has to be
considered as sensitive as the communication contained with the
call.
Ms. Divoll. Senator, I understand. The provisions in the
Graham-Feinstein bill, again as you know because you worked on
it, were put together before September 11, and I think that the
provision you're talking about, which is part of the Ashcroft
proposal, will be one that this Committee will look very
seriously at. We didn't include everything in this. We didn't
feel that we could push too far because we weren't in the State
we're in now. But I think people are going to look at that very
carefully through the Ashcroft provisions.
Chairman Graham. Thank you, Senator.
Senator Bayh.
Senator Bayh. Thank you, Ms. Divoll. Could you please
expound in a little greater detail on the asset tracking
center? It seems as if the provision focuses on the analysis
and dissemination of foreign intelligence related to financial
capabilities but doesn't really propose any additional action
based upon the information, such as extending the suspicious
activity reporting requirements or perhaps prohibiting a
foreign entity that had been identified as a primary money-
laundering concern from doing business in the United States.
Was there a reason for that?
Ms. Divoll. If it's all right, sir, I'll defer to Mr. Cash
to answer that.
Mr. Cash. The intention here was to direct the creation of
an entity that would allow the effective analysis of the vast
amount of data from all different sources related to finance
and financial transactions, analyze it, and make sure that it
gets to the consumers. One of the very consumers that we were
worried about are the kind of people in, for instance, the
Department of the Treasury who make exactly the policy
decisions or operational decisions you just referred to. So the
intent was not to try to change the standards for, for
instance, freezing assets or acting on a suspicious activity
report, but rather to ensure that those policymakers are
serviced as well as possible by the Intelligence Community.
It addresses the concern that that wasn't happening--a lot
of financial data not going to a central place, not getting out
to all of the right people.
Senator Bayh. The left hand not knowing what the right hand
was doing.
Mr. Cash. Exactly.
Senator Bayh. Thank you, Mr. Cash.
Chairman Graham. Thank you, Senator.
Senator Rockefeller.
Senator Rockefeller. It's possible that Senator Durbin
asked this question, but I didn't hear it. There's a follow-up
to his question. If one says that no requests have been turned
down from the field for approval at a higher level in so-called
less-than-savory assets, and then you come back and you say
``no,'' that's a very declarative answer. The other side I'm
looking at, of course, is that not many requests are made
because people don't want to be hung out to dry in case their
asset turns in some way to be nastier than anticipated.
So my question would be, in fact, in view of the need for
this kind of asset, have there been the numbers of requests for
these folks that would warrant the statement ``Oh, there really
isn't a problem because nobody's been turned down.''
Ms. Divoll. Senator, I think one way to answer that
question is to speak to the difficulty of this type of
recruitment in the first place. I think that people look at--
people who are involved in the intelligence business look at
this type of issue and they say we haven't succeeded, what's
the problem, maybe it's these regulations, when in fact the
target is a very difficult one and the officers are working
hard to recruit that type of person, but that type of person
often is not going to want to work for the U.S. Government.
So I think it's more a reflection of the difficulty of the
target than the procedures themselves would be my answer.
Senator Rockefeller. OK.
Chairman Graham. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman. I thank both of you
for your presentations.
I think what Senators are reflecting is a desire for some
balance. It's obvious that we want to have new tools out there
to protect our citizens from the threat of terrorism without
giving up the ages-old tradition of protection for freedom and
civil liberties. It seems to me what both bills are trying to
do--and maybe you can clarify this--is both them seem to give
the judiciary a pretty significant role with respect to most of
the areas where new power is authorized. Is that correct? Maybe
I'm missing something. I think the hacking provision may be one
that is different, but for the most part the judiciary is given
pretty significant powers with respect to reviewing all this.
Maybe you could comment on that with respect to both bills.
Ms. Divoll. Yes, Senator. The vast majority of the
provisions in both bills are designed to expand the situations
in which a court may order a FISA. It certainly doesn't require
the court to order a FISA in those situations. It would, as you
said, both in the criminal title III context and in the FISA
context, judicial officials--the FISA court and the criminal
courts--would be passing on these applications. They would just
have a little bit more clear guidance from the Congress and a
little bit more leeway on approving them, but they would still
be reviewed.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Graham. Are there any other questions? If not,
thank you very much, Ms. Divoll and Mr. Cash.
I'd like to ask our first panel if they would please come
forward. Mr. David Kris, Assistant Deputy Attorney General of
the Department of Justice, Mr. Larry Parkinson, General Counsel
of the Federal Bureau of Investigation, and Mr. Robert
McNamara, General Counsel of the CIA.
As they are settling in, Senator Feinstein would like to
make an introduction to the Committee.
Senator Feinstein. If I might, there is a gentleman in the
audience that I would like to introduce to the Committee. He is
the brother of the pilot of the American Airlines Flight 77
that crashed into the Pentagon on September 11. Of course all
58 passengers and five crew members perished. The pilot,
Charles Burlingame, was a graduate of Anaheim High School in
California. He attended and graduated from the U.S. Naval
Academy. He served in the Navy from 1971 to 1978, where he flew
F-4 Phantoms and retired with the rank of Commander. From 1979
to 1998 he served in the Naval Reserve, obtaining the rank of
Captain. He has had a 22-year career as a pilot with American
Airlines and he was a day short of his 52 birthday when this
happened. He leaves a wife, Sherry, and a 26-year-old daughter,
Wendy, as well as two brothers, Mark and Brad, and a sister,
Deborah.
Brad Burlingame is here today. He is the president of the
West Hollywood Convention and Visitors Bureau. Both Mr.
Burlingame's father and mother are buried in Arlington
Cemetery, and the family is very desirous that Mr. Burlingame
be buried there as well. I would like to ask Brad Burlingame if
he would stand so that the Committee might acknowledge his
presence.
Senator Mikulski. Thank you very much, Senator Feinstein.
His brother lived in Maryland, so we also wish to welcome you
as well.
Senator Feinstein. Thank you.
Chairman Graham. Thank you very much, Senators Feinstein
and Mikulski. We extend to you and through you to all of the
families of the victims of this horrible tragedy our deepest
sympathy.
As indicated, Mr. Kris is prepared to not only comment on
the proposals that are included in the introduced legislation
but also on those provisions within the Attorney General's
recommendation which relate to the jurisdiction of the
Intelligence Committee. Mr. Parkinson is not going to be making
formal testimony but will be here as a colleague of Mr. Kris.
Mr. Kris.
STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE; ACCOMPANIED BY: LARRY PARKINSON, GENERAL
COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. Kris. Thank you, Mr. Chairman, Mr. Vice Chairman and
Members of the Committee. Thank you for the opportunity to
discuss proposed legislative responses to the acts of terrorism
inflicted on our country on September 11.
My name is David Kris and I am an Associate Deputy Attorney
General at the Department of Justice. My portfolio there
includes national security policy and FISA, the Foreign
Intelligence Surveillance Act. This is my first appearance
before this Committee--actually before any Committee--and I
appreciate the opportunity to present the Department's views.
Chairman Graham. We appreciate this opportunity to be your
first exposure to the Congress and we will try to act with
appropriate respect.
Mr. Kris. Thank you.
The Attorney General and the Deputy Attorney General both
wanted to be here today. Unfortunately, a conflicting prior
commitment to testify before the House Judiciary Committee and
their operational duties in connection with this investigation
have made that impossible. But, Mr. Chairman and Mr. Vice
Chairman, they send their apologies and they hope that you and
other Members of the Committee will accept their heartfelt
appreciation for your extraordinary leadership at this critical
time.
In particular, Mr. Chairman, I want to thank you and the
Vice Chairman and the other Members for the Committee's
expeditious consideration of our request for a hearing today.
For that and for the collaborative spirit that you have shown
throughout this process we are deeply grateful. The Department
has long enjoyed a close working relationship with this
Committee and we look forward to its continuation.
We're also grateful that you have invited our views on the
bill that you and Senator Feinstein introduced 3 days ago. I
know you share our goal of giving the law enforcement and
intelligence communities the tools that they need to stop
terrorists before they can strike again.
Mr. Parkinson and I are prepared to discuss in detail the
specific provisions of the Administration's proposal that you
previously identified for us based on the Committee's
jurisdiction. That proposal obviously remains our top priority.
Due to the short timeframe and the operational and policy
duties that Mr. Parkinson and I must carry out, we have not had
an opportunity to fully review all of the provisions in your
bill, and while I believe we can endorse the substance of some
of your bill's provisions and I know that we share common
goals, we would like to reserve some of our comments on the
particulars of the language as the bill is currently drafted.
The Department looks forward to working with the Committee as
necessary to ensure that we achieve the goals that all of us
seek.
We are therefore prepared to answer general questions on
provisions of the Graham-Feinstein bill to the extent that
there is a cleared Administration position on them, and we
pledge to work with you on all of the bill's provisions to
achieve our common goals of finding those responsible for the
recent attacks and preventing future attacks.
Again, let me thank you for your outstanding leadership and
commitment in holding this hearing and for focusing the Nation
on the needs of the intelligence and law enforcement
communities to fight aggressively and consistent with the
protection of civil liberties the threat that terrorism poses
to us and to the world.
Thank you.
Mr. McNamara. Mr. Chairman, may I make a few opening
remarks, please?
Chairman Graham. Yes. Then, Mr. Kris, are you going to walk
us through the Attorney General's provisions?
Mr. Kris. Yes, sir, I will do that.
Chairman Graham. Mr. McNamara.
STATEMENT OF ROBERT McNAMARA, JR., GENERAL COUNSEL, CENTRAL
INTELLIGENCE AGENCY
Mr. McNamara. Thank you, Mr. Chairman, Vice Chairman
Shelby, Members of the Committee. I do not have a formal
statement for the record, but with the Chair's permission I
would like to make a few opening remarks.
Two weeks ago today the mood of the American people
actually was fairly upbeat and optimistic. Summer was over, the
fall looked promising, markets appeared to be recovering and
moving back to that 10,000 mark, unemployment figures were at
low levels, as were interest rates, parents were concerned
about the beginning of the school year and the students were
getting concerned about the beginning of football and soccer
season.
Less than 18 hours later, the world as we knew it changed
forever for all of us. Terror was forever redefined, and
September 11 became a date that none of us will ever forget.
Not only will we never forget the pictures we saw or the cries
that we heard or the devastation that took place. We will not
forget the overwhelming emotions of the moment--the fear, the
horror and the helplessness.
If we did not know it before, we learned how vicious
terrorists are and how vulnerable an open society can be. But
we also had occasion to see good among evil--extraordinary
courage and exceptional kindness. We saw clearly, perhaps as
never before, that we are neither black nor white, neither
Asian nor Hispanic. We are neither Jew nor Muslim or Christian.
We are Americans and we are proud of it.
In those first few horrible moments we may have been forced
to our knees, but only to pray for those who had fallen. Our
hearts may have been broken but not our spirit, and certainly
not our resolve. As we stood together that day and as we stand
together in the days ahead, we will take to heart the words of
our President. Our grief has turned to anger and anger to
resolution. Whether we bring our enemies to justice or justice
to our enemies, justice will be done.
To that end, the men and women of the Central Intelligence
Agency and of our entire Intelligence Community are working
around the clock to assist our partners in law enforcement, the
military and diplomacy to bring to justice the perpetrators of
these atrocities and to thwart others who would harm the
national security of the United States.
Mr. Chairman, I applaud your leadership and efforts to
respond quickly and vigorously to the current and continuing
threat of terrorism. I appreciate the opportunity to testify
today regarding two separate legislative proposals that in many
instances would provide needed enhancements to law enforcement
and the Intelligence Community authorities. These enhancements
have been carefully drafted to protect the civil liberties
guaranteed United States citizens by the Constitution and at
the same time to improve our ability to protect national
security.
The Intelligence Community's mission at its core is the
collection and dissemination of foreign intelligence and
counterintelligence information to those who chart our
country's course in the world. Without robust collection
authorities, however, the Intelligence Community cannot provide
the important information that our Nation's leaders need to
make the difficult decisions they face in times of peace and in
times of crisis. The statutes that control the manner in which
the intelligence community conducts electronic surveillance are
currently struggling to keep pace with the rapid expansion of
communication technologies. The Foreign Intelligence
Surveillance Act of 1978 was drafted well before communication
devices such as cell phones and e-mail had so permeated our
daily lives.
Both pieces of proposed legislation would make a number of
sensible enhancements and clarifications to existing law
enforcement and Intelligence Community authorities to deal
effectively with the communication technology explosion. These
enhancements and clarifications would also remove artificial
barriers to information-sharing between law enforcement and the
Intelligence Community.
The Intelligence Community supports in one form or another
a number of the provisions found in both pieces of legislation.
However, we also believe that these proposals provide an
excellent starting point for the Administration and Congress to
discuss other needed improvements to intelligence capabilities,
carefully balancing the interest of national security with the
privacy rights we all enjoy under the Constitution.
I welcome the opportunity to discuss these pieces of
legislation or other important proposals that would further the
ultimate goal of both Congress and the Administration, and that
is the protection of our fellow citizens.
Thank you, Mr. Chairman.
Chairman Graham. Thank you very much, Mr. McNamara. Mr.
Kris, if you could walk us through the Attorney General's
proposals, let me state a question which will relate to all of
the provisions. The Attorney General, when he made his
announcement, emphasized the sense of urgency. He talked about
trying to get this accomplished within a 2-week period. As you
discuss the specific provisions within your ability to do so,
if you could give us some sense of why the urgency to move
forward on these particular recommendations.
Mr. Kris. Yes, sir. What I would like to do, with your
permission, is actually begin with section 151 of the
Administration's proposal. I think as I go through I will be
able to come back to some of the earlier sections that you
identified--sections 103, 104 and 105--but it will ensure, I
think, a little more thematic coherence if I do it that way.
For each of these provisions I'll try to give a one-
sentence overview of what the amendment would do, explain the
current law, and then show what the amendment would do to
current law, and try to give you then finally a sense of the
reasons that we think these amendments are needed.
Section 151 would lengthen the period of court-authorized
electronic surveillance and physical searches under FISA. In
current law, electronic surveillance is authorized for 90-day
periods, physical searches for 45-day periods for most FISA
targets. However, for surveillance and searches of foreign
powers themselves, as opposed to their agents, authorization
periods for both physical search and electronic surveillance
are 1 year.
The amendment would change those timing provisions in two
ways. First, it would extend from 45 to 90 days the period of
court authorization for a physical search of an ordinary
target, a routine target. That would bring into accord the
period for electronic surveillance, which is currently 90 days,
and the period for a physical search.
The other thing that the amendment would do is it would
expand the category of targets to whom the 1-year authorization
periods apply. In particular, 1-year authorization periods
would be available against officers or employees of a foreign
power and foreign members of an international terrorist
organization. I think the critical point to make with respect
to that expansion of the 1-year provision is that none of the
targets that would be subject to it under the Administration's
proposal would be U.S. citizens or permanent resident aliens.
The reasons for these amendments are largely to deal with
difficulties we have had implementing the authority we got from
the court and to improve efficiency and streamline the process.
With respect to the 45- to 90-day expansion for physical
searches, FISA searches are unlike ordinary criminal law
searches in that they are conducted surreptitiously and it is
often difficult actually to execute the authority we have from
the court within a 45-day window. Enlarging the period to 90
days would double our chances of successfully implementing the
authority.
It would also help us in cases where we are seeking both
electronic surveillance and physical search authority
simultaneously because the similar period would keep the
applications in sync as we go down the line and renew them as
necessary.
The reason for the 1-year provision expansion is that the
targets that we would add to that category are often here for
long periods of time and it is difficult to continually renew
applications to maintain coverage. I want to emphasize it is
not a trivial thing to put together and file a FISA
application. As the Committee is aware, a FISA application
requires the personal certification of a high-ranking executive
official such as the Director of the FBI or the Director of
Central Intelligence. It also requires the personal approval
before filing of the Attorney General or the Deputy Attorney
General.
Finally, depending on where the search or surveillance may
take place, it will require an affidavit from a field agent in
the FBI, for example, and that will require transmission of
highly-classified material over great distances within this
country to ensure that what we file with the court is accurate.
It is a significant process and reducing the number of
applications that we need to file on these non-U.S. person
targets would aid us significantly.
Section 152 of the Administration's proposal is what is
commonly now referred to as a multi-point authority or roving
wiretap authority. Under current law, when we seek authority to
conduct electronic surveillance from the FISA court, the court
will issue an order of assistance to a particular
telecommunications provider to allow us to implement the
surveillance. The amendment would allow the court to issue
broader orders that we could use with any provider, if the
court found that the actions of the target may have the effect
of thwarting the surveillance.
The reason for that amendment is effectively tradecraft and
countermeasures that our adversaries can employ in this area.
The adversary in a FISA situation is often a very sophisticated
target--state-sponsored or otherwise. It is under current law
possible for a spy or a terrorist, let's say, to simply switch
cellphone providers just before a critical communication will
occur. In the time it takes us to go back, spin up a new
application, obtain the certification and approval from the
Attorney General and file the document with the court to get a
new secondary order, it may be too late.
This authority, as the Committee is aware, exists already
on the criminal side and we would like the same authority on
the FISA side.
Sections 153 and 154 of the Administration's proposal are
designed to foster and facilitate greater coordination between
the law enforcement and the intelligence sides of the
Government. Section 153 would amend the certification provision
in FISA to which I previously referred. Under current law, the
DCI or the Director of the FBI, as the case may be, will
certify that the purpose of the search or surveillance is to
collect foreign intelligence information. The amendment would
change that requirement from ``the'' purpose to ``a'' purpose.
Let me also describe section 154 before I come back to the
reasons for the amendments. Section 154 is designed to address
the other side of the coin, and that is it will allow all
foreign intelligence information developed in a criminal
investigation, regardless of the method used to collect the
information, to be passed over to intelligence and other
appropriate authorities within the Executive branch. That would
specifically deal with restrictions that are contained in title
III, the domestic criminal wiretap law, and rule 6 of the
Federal Rules of Criminal Procedure, which governs grand jury
secrecy.
The provision would say that notwithstanding any other law,
foreign intelligence information--and that is a defined term--
may be passed to intelligence authorities regardless of other
restrictions that exist. As I say, the basic animating purpose
here is to ensure that the two sides of the Government are
communicating well. I think this investigation is a
paradigmatic example of the need for that greater cohesion.
It's been reported in the press there are 4,000 FBI agents
out gathering information, and I have spent time in the FBI's
command center, SIOC, seeing that information being pulled in
by any lawful means that is available to us. It is less than
ideal, I can say, to have information coming in through a title
III wiretap, if there is one, and have it be the case that the
criminal investigators who are running that wiretap are simply
unable to pass the information over to the counterintelligence
investigators who may be performing FISA surveillance or doing
something else on the other side.
So the animating purpose here is to bring those two sides
together, allow for a single unified, cohesive response, and
avoid splintering and fragmentation.
Now there have been questions raised about the
constitutionality of the ``a purpose'' test. Let me say a word
about that. I do think that's a real issue.
We have had, as a procedural matter, our Office of Legal
Counsel, which is the component within the Department of
Justice whose job it is to evaluate the constitutionality of
this kind of legislation, review the proposal here before we
put it in our bill. They have approved its inclusion in the
bill. Indeed, I am told that a letter is being prepared that
will communicate the substance of our analysis on this, but let
me give you just the sort of short version of it now.
FISA articulates standards for electronic surveillance that
are different from and in some ways more lenient than those
that exist in ordinary criminal surveillance. The justification
under the Constitution for using those different standards has
historically in the case law been linked to the purpose of the
surveillance, in particular that the purpose of the
surveillance be to collect foreign intelligence information.
The question of exactly how much purpose and what degree of
purpose is constitutionally necessary is open to question.
There is not a vast amount of case law on this. Some cases have
adopted a primary purpose standard but have left open the
possibility that the floor may be lower.
What our amendment would do would be to eliminate any
artificially high statutory barrier and allow the
constitutional standard to be developed on a case-by-case
basis. OLC has concluded that an amendment of that kind would
not risk the statute being struck down on its face. What we
would have to deal with is a case-by-case evaluation in each
case of whether we have crossed the line. But that would allow
development of the law at the constitutional level and
eliminate the statutory barrier, and that is the gist of our
thinking that underlies section 153.
I want to emphasize this is a serious problem, and I think
the example I gave--that of being in the FBI SIOC--is one
illustration of that. We hope that this can be dealt with.
Let me, having spoken about sections 153 and 154, talk
about sections 103 and 104, two of the other provisions you
asked about. Section 103 and actually section 354 as well are
both sharing provisions that are designed to eliminate specific
barriers to sharing information obtained from a criminal
investigation. Section 103 deals with title III's limitations;
section 354 deals rule 6. Both of those are covered by our
section 154.
If you were to enact section 154, I think sections 103 and
354 would not be necessary because section 154 is the blanket
approach to this problem.
Section 105 is another provision that you identified for
us, and it would allow the use of wiretap information obtained
abroad from foreign governments. Effectively it provides that
if there is no U.S. law enforcement involvement or no U.S.
involvement at all in that electronic surveillance conducted by
a foreign government abroad, the information may be introduced
in an American court.
If there is U.S. involvement, then the basic U.S. legal
standards, such as the requirement of probable cause, would
apply to the surveillance and that would determine its
admissibility.
Let me go on to sections 155 through 157, which are the
last three provisions that the Committee asked about. Section
155 would change the FISA pen/trap standard. There's been a
discussion of pen registers and trap and trace devices. They
are devices that record both digits dialed but not the content
of a telephone communication or the routing and addressing
information of an electronic mail message, but again not the
content of the electronic mail.
What this provision would do, section 155, is make the FISA
pen/trap statute roughly analogous to the corresponding
criminal pen/trap statute. Under current law, to obtain a FISA
pen/trap order we must show almost as much as we have to show
in order to get a full content, a full-blown FISA order. The
result of that is, frankly, that we hardly ever use the FISA
pen/trap statute. Because if we're going to go to the lengths
required under the current law, we will go the extra 5 percent
and get the full content order.
Our basic position here is that it is at least ironic that
information that is available in a routine drug investigation
or some other routine criminal investigation is not available
under the same standard in an anti-terrorist or espionage
investigation. The requirement that we're proposing is a
relevance standard, which is what applies on the criminal side.
Here it would be relevance to a counterintelligence or
intelligence investigation; whether there is relevance to a
criminal investigation.
Section 156 of the Administration's bill would eliminate
the requirement for prior FISA court approval and expand the
scope of FISA subpoenas to make them roughly analogous again to
various criminal administrative subpoena provisions that
already exist. Under current law, we must go to a FISA court
judge or a specially designated magistrate and obtain an order
to issue a subpoena that would apply only to four categories of
recipients--a common carrier, a public accommodation, a
physical storage facility, or a vehicle rental facility.
The amendment would remove both the requirement of advance
court approval and would expand the scope of the subpoena
provision to include all records, not just those in the four
categories that I mentioned. The reason that we are seeking
that authority is effectively both speed and efficiency and
breadth.
Eliminating the requirement of advance court approval means
we can get what we need quickly, with less paperwork, and the
breadth would allow us to reach targets like schools, gyms--
you've seen some of the newspaper reporting--dry cleaners,
information that may well be critical in one of these
investigations. Again this would bring into parity with
existing criminal administrative subpoena authorities the FISA
subpoena provision. There is authority, for example, in a
routine drug case for the Attorney General not only to compel
the production of documents but to compel witness testimony
without any prior court involvement. He may simply issue the
subpoena. That statute is 21 USC 876.
Finally, section 157 changes the standards for issuing so-
called national security letters, and it changes it in two
basic ways. It would allow these letters to be issued by FBI
field offices rather than by headquarters officials, and it
would eliminate the nexus requirement to a foreign power to
make the national security letter authority more analogous to
corresponding criminal authorities.
Under current law national security letter authority--and a
national security letter is just what it sounds like. It's a
letter issued by the FBI to either a telephone or internet
service provider, a financial company or a credit company to
produce documents and to keep secret the fact that they have
been asked to produce documents in a foreign intelligence or
counterintelligence investigation.
What our amendment would do is allow special agents in
charge--that is, the top-ranking FBI field agent in each of the
FBI's 56 field offices--to issue one of these letters rather
than requiring the letter to be sent out by an Assistant
Director at headquarters. It would eliminate the requirement of
a nexus to a foreign power, leaving in place only a relevance
standard.
That is roughly analogous to the standard that applies in
the criminal context in a grand jury. Obviously we can't and
don't use grand juries in most foreign intelligence/
counterintelligence investigations, both because it is a
quintessentially criminal investigative tool and because it is
not really part of the grand jury's historic mission to look
into counterintelligence or intelligence issues. This would
give us an authority that roughly corresponds to grand jury
subpoena authority, although in a more narrow class of cases,
and I think would be an important contribution to our efforts
to gather information quickly, especially in a case like this
one.
I think that is the last of the amendments the Committee
specifically asked about, so I will stop.
Chairman Graham. Thank you very much, Mr. Kris.
For the information of the Committee members, questioning
will be on a first-arrival basis. After the Chairman and the
Vice Chair, the next questioners will be Senator Feinstein,
Senator Rockefeller, Senator Wyden, Senator DeWine, Senator
Edwards.
You emphasized in several areas such as sections 155 and
156 of the Attorney General's recommendations that you were
attempting to render more comparable the standards under the
Foreign Intelligence Surveillance Act with those that are
currently in place for criminal matters. Have the analogous
sections to those that you are proposing for FISA been
adjudicated in their criminal context and found to be
constitutional?
Mr. Kris. I think the answer to your question is yes, but
let me be more specific. With respect to pen/trap orders, the
Supreme Court has squarely held in a case called Smith v.
Maryland that there is no fourth amendment privacy interest in
the telephone numbers that you dial or the numbers from which
you receive a call. I think the reasoning of that opinion would
apply equally to other kinds of routing and addressing
information.
So I think with respect to pen/trap orders there is no
constitutional question and there would not need to be any
showing made at all to satisfy the fourth amendment.
I think administrative subpoenas have also been upheld
whenever challenged, and I don't think that there is any real
question about the Attorney General's ability to do that. There
are a number of such statutes on the books.
Chairman Graham. Recognizing that the answer to this
question may involve sensitive or classified information, are
you at liberty to select any of the provisions in the Attorney
General's recommendations and indicate why there is this
special sense of urgency that the Attorney General alluded to
when he presented these to the Congress last Wednesday?
Mr. Kris. It is difficult to answer that question in an
open hearing and, of course, we are all, I am sure, available
for a closed hearing where we could go into much greater
detail.
If I may, let me just say something generally. The current
investigation is really a sort of all-hands-on-deck approach
where we do have many, many agents out there and we are doing
everything that we can do under law to get the information we
need to protect the public from future attack, and to give the
President the information he needs to make the kinds of foreign
policy and other decisions that he will have to make.
As I say, having been in SIOC when information is just
coming in, the embargoes that currently exist in various places
in law make it very awkward for everybody to get together and
share the information. When you have an investigation this
size, you need to have coordination or things begin to fall
apart.
So I will say that it would be very helpful in an
investigation like this one to have the sharing provisions, and
I think beyond that I would defer to a closed session, with the
Committee's permission.
Chairman Graham. In the legislation that has been
introduced, 1448, one of the provisions clarifies that the
intelligence agencies would be authorized to retain so-called
dirty assets without specifically directing them to do so and
being sensitive to the separation of powers doctrine. Mr.
McNamara, would you have any comment on the way in which 1448
deals with the issue of the authority of the CIA to hire assets
with suspect backgrounds?
Mr. McNamara. I think Ms. Divoll has actually laid out
quite carefully and candidly what the issue is here. As you
heard earlier, the reason these guidelines are in place--and I
must caution that the guidelines are still classified and I'm
somewhat constrained about what I can say--the reason they were
put into place is because of a genuine and a serious concern
that Congress had in 1994 and 1995 about the way assets, CIA
assets overseas both were being recruited and were being used,
and whether or not there was, for lack of a better term, adult
supervision in the entire process.
What we have attempted to do or what the Agency attempted
to do 6 years ago was to put in place a structure whereby both
the Agency and the Committee and the Congress could be assured
that somebody had looked at this to see whether or not the gain
that we might be able to get offset whatever the person may
have done.
I'm a little concerned about the way the statute is
drafted, Mr. Chairman, although I'm sure it's unintended. It
appears in the first sentence to give a case officer, a first-
tour case officer, in wherever immunity from anything that may
happen as a result of taking on this action. I'm not sure the
intention, but the second part is it's also limited to only
acquiring information, which means the officer could not direct
the dirty asset, for lack of a better term, to engage in covert
action, which, although the President would have authorized it,
could have authorized it, to engage in any kind of disruptive
activity, although clearly that's one of the things that we do
should we be able to accomplish this objective.
Third, I've been the General Counsel now for almost 4
years. Either I or my senior deputy see all of these before
they go to the DDO and upward. The entire purpose is to make
sure that somebody else has gotten eyes on this, that people
who are responsible and accountable to Congress and the
American people are making a decision that does two things. It
weighs in the balance whether or not this is someone in fact
that we want to have our payroll, if that's what it is, or
working as an asset.
For instance, if the individual had killed Americans or if
the individual had been involved in an airline hijacking or if
an individual had been involved in some type of other terrorist
activity, somebody needs to think about that, and a first-tour
officer shouldn't be the one.
The second advantage is that it really protects the first-
tour officer, or the second- or third-tour officers. So there
is somebody who is saying to him, ``Yes, this can be done.''
You can go ahead and do this. I know there's been a lot of
discussion. I know former Director Woolsey firmly believes that
there has been a chilling effect that has had an adverse
impact. I know the Vice Chairman has been to a number of our
offices overseas, as have others, and talked to officers. I
have as well. I take a chance to talk to all of our first-tour
officers when I'm out of the country.
All I can say is our information is different. But the
bottom line, I think, is we're going to do whatever we have to
do and do it right to make sure that the American people are
protected. But at the same time we have to make sure we do it
smartly. I don't know whether or not this would have an
unintended consequence, and I'm sure that's one of the things
the Committee is concerned about.
Chairman Graham. Thank you, Mr. McNamara. When I read the
list of questioners, I apologize. I omitted Senator Mikulski,
who will come immediately after Senator DeWine.
Senator Mikulski. Mr. Chairman, I don't have any questions.
Those were answered in the discussion. Thank you.
Chairman Graham. Senator Shelby.
Vice Chairman Shelby. Mr. Kris, does the statutory
authority to conduct simultaneous title III and FISA
surveillances present the same questions that section 153 does
in the Attorney General's bill? In other words, isn't there a
question of purpose if we are conducting simultaneous taps?
Mr. Kris. I think the answer to that question is yes. The
question of whether there is a primary or other intelligence
purpose underlying FISA is a case-by-case and highly fact-
intensive determination. I think in many cases at least if we
were doing simultaneous title III surveillance of the same
target it might play into the primary purpose calculus, yes.
Vice Chairman Shelby. Mr. Kris, could you just briefly
address the separation of powers--we alluded to this earlier--
issues raised by section 103 of the Chairman's bill?
Mr. Kris. Yes. I will do so. However, I should say that we
have asked OLC again to render a more formal opinion on that.
What I will say that I think raises some separation of powers
concerns in my mind is something that Mr. McNamara mentioned
before, and that is the ``notwithstanding any other law''
provision.
That suggests that even if the DCI or the President were to
say to the first-year case officer don't recruit that
particular dirty asset, the case officer would be authorized to
do so anyway. Now I don't think--and based on what I heard
earlier, I'm more confident--that that is the intent. We may
have an ability to work with the staff to deal with drafting
issues that we have. But I think that is an area in which there
might be--and I don't want to say that there would be--
separation of powers concerns.
Vice Chairman Shelby. Mr. Kris, what specific provisions in
the Graham-Feinstein proposed legislation do you need right now
in the Justice Department in order to properly prosecute the
ongoing war on terrorism, from your perspective?
Mr. Kris. Well, we are very, very happy with sections 202
and 203. Indeed, those provisions may be an example of the
principle that great minds think alike, since they are quite
similar to provisions we have in sections 151 and 152 of our
bill. I think those are probably the two leading provisions
from our perspective.
Vice Chairman Shelby. OK. Mr. Parkinson, under section 101
of the Graham-Feinstein proposal, the DCI, I believe, would
``manage'' employees within the Bureau and other agencies
across the community. How would you envision this working in
light of their existing chains of command that we have today?
Mr. Parkinson. Well, let me say to begin with, Senator
Shelby----
Vice Chairman Shelby. ``Manage the analysis and
dissemination,'' it says.
Mr. Parkinson [continuing]. We do have some concern over
the language that appears on page 3 of that legislation, and we
would like to engage the Committee and staff in a discussion
about its intent. One appearance issue is that it appears that
it may--and we don't know whether this is advertent or
inadvertent--put the DCI and the Agency in the domestic
security arena. I think that's an important issue that we have
to focus on.
Assuming we work that out and the Congress makes the
judgment that an expanded role for the DCI is appropriate here
in terms of how it plays out I think I am quite confident that
we would work very well with the Agency, as we have, in
carrying out the authorities that are given.
Vice Chairman Shelby. Let me just share the language with
you as I see it on page 3.
Establish requirements and priorities for and manage the
analysis and dissemination of all foreign intelligence
collected under the Foreign Intelligence Surveillance Act of
1978, quoting the U.S. Code, including the provision of assistance
to the Attorney General in order to ensure that information derived
from surveillance or physical searches under that Act is used
efficiently and effectively for foreign intelligence purposes,
except that the Director shall have no authority to direct,
manage or undertake electronic surveillance operations pursuant
to that Act unless otherwise authorized by statute or Executive order.
That's what we're talking about here.
Mr. Parkinson. That's correct.
Vice Chairman Shelby. All right. Thank you, Mr. Chairman.
My time is up.
Chairman Graham. Thank you very much, Senator.
Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Kris, I think your testimony was very helpful and I
want to thank you. I also think it was very powerful in one way
because it really is the first time the Department has
officially admitted that the communication issue is truly an
issue and, as you just said, less than ideal.
One of the problems I think working in this area is people
will say to you one thing formally and they'll say another
thing informally, so how you really know becomes sometimes a
difficult task. But I think you have clarified what we believe,
based not on something people said, because it's always been
denied--oh, there's no problem in intelligence-sharing--when in
fact we believe there is. So I want to thank you for that.
I wanted to ask you a question on section 151, if I might.
This is the period of orders of electronic surveillance of non-
U.S. persons under foreign intelligence surveillance. Is that
there largely just because of the jurisdiction of this
Committee being that if you had U.S. citizens covered under
this it would come under the jurisdiction of another Committee?
Because I have a hard time knowing why. I mean, we know there
are cells operating in this country. It may even be that the
U.S. citizens are participating in those cells or people here
legally. As a matter of fact, it's very likely.
So the question is why not give this authority across the
board?
Mr. Kris. OK. Before I answer that question, let me just
respond to what you said earlier.
Senator Feinstein. You're not going to take it back, are
you?
Mr. Kris. I don't want to give myself more credit than I'm
due. If Senator Thompson were here he could tell you. He
recently commissioned a GAO report which does discuss some of
the long-term issues we've had with information-sharing, and we
then wrote a letter in response to the report. So I don't want
to give myself more than I deserve.
With respect to section 151, I don't think that--I mean, I
can tell you that the thinking behind section 151 has nothing
to do with which committee would evaluate it, and frankly
that's well beyond my ken. The concern, though, or the reason
for limiting the 1-year authorization period is part of our
overall approach here, which is to try to be balanced, to push
the envelope and give ourselves more authority where we really
need it, but to be sensitive also to the civil liberties and
privacy concerns that this kind of surveillance will go
against.
We are really trying to get the authority where we need it
most. This provision does not enlarge or change the targets
that we can surveil. It only allows for longer periods. That,
we have found, is a significant issue primarily for non-U.S.
persons, especially--and I want to be careful in an open
hearing of exactly what I say--for employees or agents of
foreign powers who are often here for long periods of time.
That's really the motivation here--respect for U.S. person
civil liberties, which we think are especially important, and
there is a difference between surveilling non-U.S. persons and
surveilling U.S. persons, but also to focus on exactly what our
need really is.
I think our need is greatest with respect to non-U.S.
persons. For U.S. persons we can still get the surveillance,
but we'll have to come back every 90 days and have a judge keep
looking at it.
Senator Feinstein. In this situation you want to do that.
Mr. Kris. Yes.
Senator Feinstein. OK. I would think about that. But, in
any event, let me go on to section 153. This section clarifies
that the certification of a FISA request is supportable where
foreign
intelligence-gathering is ``a purpose'' of the investigation.
It would eliminate the need continually to evaluate the
relative weight of criminal and intelligence purposes and would
facilitate the information-sharing between agencies.
Now, I am told that the primary purpose test has often been
cited as one of the reasons that FISA meets the constitutional
requirements under the fourth amendment. Would elimination of
this test place the entire FISA in danger of being struck down
by a court?
Mr. Kris. The answer to your question I think is no, and
again I'm relying here on the analysis of our experts in the
Office of Legal Counsel. Let me try to explain in particular
with respect to the risk to the whole statute.
Courts will occasionally evaluate constitutional challenges
on an as-applied basis, where you deal with only the particular
case, or on a facial basis, where you evaluate the statute in
general. What we would definitely not like to see is an
amendment to FISA that led to a facial attack and a successful
facial attack on the statute, which would throw the entire
statute out on constitutional grounds.
We are confident that changing ``the purpose'' to ``a
purpose'' will not permit a facial challenge to FISA. Because
of the way courts evaluate these things, we are confident that
under existing jurisprudence they will evaluate this on a case-
by-case basis. There is a case, United States v. Salerno, that
stands for the proposition that if a statute is valid in some
applications, as the ``a purpose'' standard clearly would be,
there is no justification for striking down the statute on its
face. Instead, courts deal with the challenges on a case-by-
case basis.
I think there is a possibility, if we go too far in a
particular case, that we would end up being suppressed in a
subsequent attempt to introduce the evidence in court. But we
think that's a risk that's worth taking in order to solve this
problem that we've discussed about information-sharing. But I
emphasize our experts--and I agree--think that the statute is
not in jeopardy on its face.
I've been reminded and I think I mentioned this before, we
will be sending a letter to Congress that sort of details at
great length our constitutional reasoning and the reason for
the statement I've just made to you.
Senator Feinstein. Thank you very much. Thanks, Mr.
Chairman.
Chairman Graham. Thank you, Senator.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I just want to go back to the so-called less-than-desirable
factor, the chilling effect, so to speak, of CIA and potential
human rights violations. If this were carried forward and it
were lifted, as I happen to favor, and there was not the high-
level approval every single time, is that done in part--does
that put in jeopardy in a way for the case officer, let's say,
on the ground in a country for the possibility of an asset
committing an act of terrorism on the United States, in other
words putting that person at risk?
I put that in this context. The answer that I got when I
previously put this forward was, ``Well, we really don't have
that many requests.'' That strikes me as a little bit of a pre-
September 11 type of answer and that if there's anything which
has been on the public airwaves in the last several weeks it's
been the need for a much greater body of human intelligence,
not all of which, I guess, can be of the most attractive sort.
So in a sense I'd like to know is the idea of not doing
this to protect the case officer, making the approval come from
a higher level in case the person turns nasty toward the United
States?
Mr. McNamara. Senator, I think it actually has multiple
purposes. One is to protect the officer. Especially a first-
tour officer shouldn't be going out there and making a
determination to bring on somebody and pay him and use him as
an asset without ever even telling the chief of station. But,
more importantly, many times the individual officers--and in
fact just for the record, the way this is drafted it's not just
a CIA case officer who actually knows tradecraft. It is anybody
who is a member of the Intelligence Community, the way it's
drafted now.
So somebody from NRO who has never done this could
actually, according to the way it's drafted, be running assets
that we wouldn't know anything about.
The purpose is multiple. No. 1, is to protect the case
officer. No. 2, is to make sure we're doing the right thing.
No. 3, is to bring it back and make sure we run it against our
data bases and traces. Is there something else we know about
him or her? Have they been involved in something we're looking
for? Is there an outstanding U.S. warrant for this individual?
There are a number of things where you just really need
headquarters to be aware of.
I think, more importantly, this Committee should be
insisting that we be accountable, the senior intelligence
officers at the CIA be accountable before somebody does
something like this. This is not slowing the process down, I
don't think. As I said, I've only been there 4 years and these
can be done very, very quickly.
PDD-35 comes out and lays out everything that we're
targeting. The chiefs of station are pushing at their people to
try and find people who can penetrate these. They are very,
very hard to do. Not only do they not like us, in many cases
they hate us and will not work with us. The opportunity to get
somebody who will do something for us, even to the extent of
giving us some information, would be a career-enhancing
opportunity and not a career-limiting event.
Senator Rockefeller. It's not a question of congressional
second-guessing which worries you on this. It's simply what you
spoke about?
Mr. McNamara. No, sir. I don't have any problem with
congressional oversight. In fact, I think in many cases this
would enhance congressional oversight. We have come to the
Committee to tell them what we are doing when we're bringing
dirty assets in. We wouldn't be able to do that. I think this
Committee should know what we're doing.
Senator Rockefeller. OK. The whole concept of the virtual
language capacity is a very, very interesting one to me and I
think is a very strong part of the Graham-Feinstein amendment.
Now as I think Senator Graham indicated in his press
conference, it's aimed at Arabic, Farsi, Urdu or maybe not
Farsi but Pashto. But it's for the whole panoply of languages.
That has been a concern of mine in any event in terms of
the capability, and I've frequently referred to the fact that
Mormons are doing many of our best language work. We are not
teaching any longer in our schools. America is in a sense
withdrawing from the world. Now that could have changed very
dramatically, probably will have since September 11 in terms of
things like teaching languages.
But it strikes me as a very, very powerful initiative and
one that I think we ought to undertake.
Mr. McNamara. Senator, I think you're right. What the
Chairman and Senator Feinstein have put together is a very
novel and intriguing idea. My only concern or our concern from
the Intelligence Community is there are a number of
counterintelligence issues this raises, No. 1. No. 2, there are
a lot of security problems. The issues of connectivity in and
of itself are something that we are trying to deal with within
the community, that we've already tried to approach.
The cost could be absolutely prohibitive. I'm just
wondering whether or not on a short-term basis we can actually
look at this with the Committee and study its ramifications to
see whether or not this is the framework you want to put into a
statutory construction. The difficulty is that once it's etched
in concrete as a statute and a requirement, we don't have the
flexibility that I think you and Mr. Cash were talking about
earlier on when he mentioned it in terms of what that
capability is.
But our translators are different than FBI translators. Our
requirements are different than the FBI translators. Protection
of classified information is different. The difficulty is it
should not be paralytic. On the other hand, what it should be
is something that is done in a way that both is effective and
efficient and quick and gets it turned around.
I don't know--and on behalf of the community--I don't know
if this is exactly the right paradigm, but what we'd like to do
is experiment and see what we can come up with and then maybe
come back to you and say, ``Here's some of the other options.''
Would this satisfy it?
Senator Rockefeller. That's fair enough. But you wouldn't
disagree that there has to be a sharp increase in our capacity.
Mr. McNamara. Absolutely agree.
Senator Rockefeller. Thank you, Mr. Chairman.
Chairman Graham. Thank you, Senator.
Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Kris, let me first say that I think the Attorney
General has come forward with some very, very positive
proposals. Some of these have been made in the past and
Congress has not acted upon them. I hope that now, with this
situation that we are in and the tragedy of September 11, we
will. I think also that the Chairman's proposal has many, many
very positive things in there, and I would congratulate you,
Mr. Chairman, on that as well.
I don't want to beat a horse that's going to be going
around a few more times beyond today, but I want to come back,
if I could, to section 153. I understand your explanation and
if we do pass this I guess I hope you're right that you are
lucky enough and we're all lucky enough to do it on a case-by-
case basis. I'm not sure you're right.
I'm not even sure, though, if it's on a case-by-case basis
that's what we want. It seems like to me that's going to be a
real mess and there are going to be some real problems for us
as a country.
As you know, the case that really is kind of the
intellectual underpinning of the FISA statute was United States
v. U.S. District Court, or the Keith case. When you read that,
as I know you have and the counsel has, it's very, very clear
that what the Supreme Court of the United States was saying is
there are apples and oranges, and when you're dealing with a
criminal it's one thing, and when you're dealing with national
security it's something else and we're going to treat them
differently and the standards are going to be different. The
Court elaborates in four or five different ways what the
differences are.
The statute today, as you know, talks about ``the
purpose.'' That I suppose, it seems to me, is pretty much
interpreted as ``the primary purpose.'' We might be able to get
by with ``a primary purpose,'' maybe. But I think when you get
to ``a purpose'' I just think what does that mean--2 percent of
what you're trying to do is national security and 98 percent is
criminal? Where do you draw the line?
I just think we're getting into some real, real problems.
I'm very sympathetic with what you're trying to do. I just
wanted to make that statement.
I want you to explain to me, though, one more time what
this gets you. What does it get us in national security? I'm
missing it. I really understand the problem about sharing
information. I understand about the artificial walls. I
understand the reason we have to have more cooperation. A lot
of what's in the Chairman's bill and a lot of what's in
Attorney General Ashcroft's bill goes to that. I have a couple
of provisions I want to add that I think will help in that
area, and I won't get into them today.
Explain to me, though, what the change in the statute does
to accomplish the breaking down of those walls and the sharing
of that information, because it seems like it's going the wrong
way to me on the information. But maybe I'm missing something.
Mr. Kris. Well, with respect to the purpose inquiry that is
conducted both by the FISA Court in the case of a U.S. person
when it evaluates the certification of the purpose of the
sought electronic surveillance or search and a District Court
if under FISA it evaluates a motion to suppress, I think the
analysis has focused concretely on two things--first the flow
of information from the intelligence side to the criminal side
and, second, the advice that goes back from the criminal side
to the intelligence side.
Senator DeWine. OK. I'm with you so far.
Mr. Kris. So, to give you a hypothetical example, if
prosecutors start telling counterintelligence investigators,
``Hey, you're up on Joe Jones'', you should probably go up on
his brother Fred because he's involved in money-laundering,
it's not a crime that affects national security but we would
really like to get some good surveillance on Fred, that advice-
giving can alter the perceived purpose of the surveillance of
Fred because it is being driven by or it is perceived to be
being driven by criminal equities and a criminal purpose.
The concern that we have, therefore, is to allow just the
right amount of information-sharing and advice-giving but not
too much, so that we don't cross the line, the purpose line,
and end up in a bad situation where we are either conducting or
attempting to conduct unauthorized surveillance or, if the FISA
Court agrees with us but a District Court later disagrees, we
end up suppressed in a criminal case.
Senator DeWine. OK. Give me another example, because I
really didn't understand that one, or do it again--if the
Chairman will indulge me just a minute--because I think this is
very important. We have to understand the situation. You're
going in to get a FISA and the factual case you have to create
is a case where it's not ``the purpose.'' It's much less than
that, because that's why you're making the change. You're going
from ``the'' purpose to ``a'' purpose.
So now we're down to you've got a lot of other reasons out
there that you want a FISA, but one of them is, ``a'' purpose,
national security.
Mr. Kris. OK.
Senator DeWine. Because that's the factual situation that
your change in the statute leads me to. With me so far?
Mr. Kris. I think I understand you.
Senator DeWine. OK. Now create the case. Tell me the case
where it's just a portion of really what I want to do.
Mr. Kris. OK. I think that issue comes up in a number of
both terrorism and espionage cases because terrorism and
espionage are, by their nature, both counterintelligence
concerns--we want to stop spies from stealing our secrets and
passing them to foreign governments--and, because of the way
the criminal law is today, they are Federal crimes. We see that
in the prosecution of Robert Hanssen or Brian Regan or Ana
Montes.
What you face inevitably in a case like that, both in
espionage cases and in terrorism cases, is an inquiry that's
being conducted by courts into sort of what is driving this
surveillance or search. Is it the desire to gather evidence so
that we can successfully prosecute this person and lock them
up, or is it instead the non-law enforcement concern about
stopping espionage and preventing further harm or what have
you.
Now there is an argument that prosecution of spies and
terrorists is just one more counterintelligence tool, one more
protective measure. By surveilling them we can recruit them,
double them, we can cut them off from access to classified
information, we can PNG their handlers, or possibly prosecute
them. But that argument would be, I think, new.
So the basic concern is that in these cases there is the
possibility of criminal prosecution and the concern is that
that not be the driving force behind the surveillance.
Senator DeWine. Mr. Chairman, I've gone too long and I
apologize. I thank the Chair for your indulgence.
Let me just say to our witnesses today I appreciate the
testimony very much. I'm going to explore this a little more
because I'm not, contrary maybe to what I said, I'm open. I'm
willing to listen. If there's a compelling reason to do this,
maybe we should do it. I guess I just don't get it yet. So I'm
going to explore it a little more. I appreciate it.
Mr. Kris. We're at your disposal.
Senator DeWine. Thank you.
Chairman Graham. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
I'd like to ask you, Mr. Kris, if I could, about electronic
surveillance and particularly how the Administration sees
drawing the line between what constitutes lawful online
activity and matters that we ought to be concerned about, such
as criminal hacking from abroad.
Section 201 is trying to define criminal hacking, and
clearly this is going to be an issue for the Congress. How
would you define it?
Mr. Kris. It's a difficult term to define. We take a run at
it on the criminal side in section 106 of our bill and, if
you'll permit me, I'll turn to that provision.
We define hacking in terms of trespass and if you are a
trespasser into a computer then effectively that is the core of
the hacking definition that we have in section 106. I want to
say that this is--and I'm happy to respond--I want to say that
this is not one of the sections identified and it is not really
within my personal area of expertise. This is a criminal law
provision here. But that is the gist of what we are doing in
section 106.
I think the section 201 provision, as I understand it, is
motivated by a similar concern. I think it's intriguing notion
on the FISA side to take out hacking from the definition of
FISA electronic surveillance. I think that's one that we would
like to sit down with not only our interagency process in the
Intelligence Community but also with the staff to sort of work
to see if we can ensure that we're doing exactly what we want
to do and nothing more.
Senator Wyden. Let me, if I might, change the subject to
the question of biological and chemical and radioactive
materials. Your bill has a provision that makes it unlawful to
possess a variety of materials--biological agents and a host of
other areas that are essentially health-related. What do you
think the major vulnerabilities are now in this area and how
would your bill address it?
Mr. Kris. Again I have to sort of apologize, Senator. That
is not one of the provisions that was identified to us by the
Chairman in advance of the hearing, and I am really very
reluctant to set out into an explanation of something that I am
not really prepared to discuss. We can certainly get back to
you with the right people on that, but I don't think I am.
Chairman Graham. Senator Wyden, I asked the General Counsel
to screen the Attorney General's recommendations for purposes
of identifying which of his recommendations were in the
jurisdiction of our Committee, and it was only those that we
submitted to Mr. Kris and asked him to be prepared to comment
on today.
Senator Wyden. So we can't get an answer out of any of the
people at the table.
Suffice it to say this is what my constituents are asking
about today, and this is in the Justice Department's bill. I
certainly respect you, Senator Graham, if they are not prepared
to talk about it, but clearly there are statutes and
regulations that apply to the possession of chemical agents and
toxins and biological agents, and I hope we'll talk about it
down the road.
Mr. Parkinson. Just quickly, Senator Wyden, I assume you're
referring to section 305 of the Administration's bill, and
while we didn't come necessarily prepared to talk about that,
that section does enhance the number of offenses in the
biological weapons arena. It adds subsections to existing
statute 175 to include additional offenses of possessing
biological agents and toxins, and then it has a section about
select agents within the jurisdiction of the Health and Human
Services Department.
The intent and the goal of those sections is to make sure
that biological agents or toxins are only in the hands of
authorized personnel, and it does two things. It establishes a
new regulatory regime within the purview of HHS and it also
adds a couple of new offenses to address it on the law
enforcement side.
Senator Wyden. Are there vulnerabilities that you can
discuss this afternoon that make the need for those
improvements necessary?
Mr. Parkinson. There certainly are vulnerabilities. I can't
comment about imminent vulnerabilities, but certainly at a
larger level we and the Department and the Intelligence
Community have been focused on biological and chemical weapons
as a priority for several years now. I think that there's no
question there are vulnerabil- ities, and this provision,
section 305, is one attempt to deal with it both on the law
enforcement side and the regulatory side.
Senator Wyden. Mr. Chairman, obviously this is not a day to
get into as much detail as we might in this area, but I hope we
will turn to it, because this is something I am getting asked a
great deal about, and it is in the Justice Department's bill
and we're going to be anxious to talk to you.
Thank you.
Chairman Graham. Senator Edwards and then Senator Kyl.
Senator Edwards. Thank you, Mr. Chairman.
Mr. Kris, you were probably here when I asked Ms. Divoll
some questions about the differences between the Administration
proposals and the provisions of the bill. Let me say first of
all that I spent part of Saturday in Charlotte with our FBI
officials in North Carolina, and their overwhelming message to
me was we have to bring these FISA procedures up to being able
to deal with what we're confronted with technologically today.
I understand the concern and I am with you. I want to make
this work. But I also share some of the concerns that others
have expressed and I expressed earlier. Let me just talk about
it briefly and then get you to respond if I can.
If I understand it correctly, the fundamental premise on
which FISA is based is that, unlike a title III wiretap,
because it's a foreign intelligence-gathering operation, it's
not required to meet some of the constitutional standards--for
example, probable cause requirements. At least that's not been
required in the statute. You can comment on that if you would.
But that of underlying premise has been critical in the
analysis of why this legislation has to date been
constitutional. Now the change from ``the'' to ``a'' of course
is a huge change in terms of the law. It may not sound like
much, but in terms of the law it's an enormous change. That
change means that the primary purpose of the investigation
could in fact be criminal, as long as a purpose was foreign
intelligence-gathering. So I have multiple concerns, one of
which you've already addressed.
I was concerned about the possibility that somewhere down
the road the U.S. Supreme Court may declare the statute
facially unconstitutional. You've talked about that some. I'd
like to hear more about that because I continue to have
concerns about that. But I understand your reasoning about
that.
Second, the possibility that a conviction may be overturned
or also that information gathered as a result of a FISA
application may not be allowed into evidence, suppressed by the
court, and, I might add, I think it goes further than that. It
seems to me that it creates the possibility that not only that
particular FISA would be suppressed but that others within the
same class would be found to be unconstitutional as applied.
Therefore you have a problem not just in the individual case,
which I know you've talked about some here today, but you could
have a declaration by a
Federal district court somewhere in the country that could have
implications for ongoing FISAs, for FISAs that are similar and
fall within the same class, and as a result would have much
broader implications. So I'd be concerned about that.
I might add I know from having looked at the Supreme Court
cases the Supreme Court has taken a particular interest, I
think, in the last couple of years in this specific issue, not
dealing with FISA but what the primary purpose of the search
was. So that's a concern I have.
Then finally I know that the U.S. Supreme Court has
historically--you've talked about the fact that we're going to
have the courts deal with this on a case-by-case basis. The
U.S. Supreme Court has traditionally, in issues of foreign
intelligence-gathering, showed deference to Congress, and
properly so. I agree with that. But they showed deference to
Congress. I just wonder from your perspective whether it would
not be some abdication of our responsibility to say, ``Well,
we're going to leave this issue to the courts on a case-by-case
basis, where the courts are very likely to say or very possibly
could say this is an area of foreign policy, this is an area of
foreign intelligence-gathering, this is an area traditionally
left to Congress.''
That being the case, who has the responsibility for
deciding whether in fact this is appropriate and
constitutional?
Just one last notion. Instead of changing the statute,
suppose we said--and this is nothing but an idea--you expressed
concern about having to constantly evaluate whether the primary
purpose was a criminal investigation or the primary purpose was
foreign intelligence-gathering. That makes sense to me. I can
see that.
But instead of changing the language of the statute, which
might potentially create more problems than it cures, suppose
we said that in your initial application you are required to
show that the primary purpose was the FISA requirement that
exists now--foreign intelligence-gathering--but at some point
down the road if it changed, when you come up for renewal you
wouldn't have to make that showing again. In other words, it
only has to be shown in the initial application.
I'm sorry. I went on too long. But if you could respond I
would appreciate it.
Mr. Kris. It's a tall order to cover all of that. I'll do
my best. First, with respect to the probable cause issue that
you raised, as a technical matter FISA does require a showing
of probable cause, but it is of a different thing. In the
criminal context it's probable cause that a crime has been
committed; here it is probable cause that the target is an
agent of a foreign power. But I take your larger point about
the difference in standards.
I guess, responding to the other point about how this would
play out in a suppression situation, the first thing I guess I
should say is I don't think that even under the current regime
and under any possible regime we can avoid making case-by-case
determinations. Whether it be a primary purpose inquiry, a
purpose inquiry, or any other inquiry, we are and have to
examine each one of these applications not only because I think
they are going to be evaluated on a case-by-case basis but
because the certification from the Director of the FBI and the
approval of the Attorney General is made on a specific case-by-
case basis. One of the safeguards of FISA is that it requires
that high-level involvement.
Also, I don't know if this has been made clear, but I think
the FISA Court, in evaluating FISA applications, would be
entitled, and OLC is of this view as well, to evaluate the
constitutionality of an application ex ante. So we would not
just be in a situation where we're rolling the dice and taking
our chances in district court.
Senator Edwards. The evaluation would take place on the
front end, is what you're saying.
Mr. Kris. Yes, exactly.
As to the sort of derivative suppression, that is a fairly
complex body of fourth amendment law about when, assuming an
initial constitutional violations, the fruits of that violation
taint subsequent searches. That has got to be evaluated also on
a case-by-case basis. But I acknowledge the issue.
With respect to the deference and the delegation issue, I
would like to think that the courts have recognized Executive
authority and have paid deference to Executive determinations
in the area of foreign intelligence, and indeed I think that's
reflected in FISA. When the DCI or the Director of the Bureau
makes a certification as to purpose, the FISA Court by statute
is required, even in the case of a U.S. person--and district
courts I think would operate under the same standard--to review
the certification only for clear error. So there is a built-in
deference mechanism where if the DCI or the Director of the
Bureau makes a certification, it is to be upheld unless it is
clearly erroneous, which is a fairly generous standard of
review.
I think that deference, even if not in that precise form,
would continue to apply regardless of how the statute is
amended and indeed even if there were no statute.
Finally, I guess with respect to the initial application
idea I guess I think that if we are going to allow a lower
standard than primary purpose in second and subsequent
applications I'm not sure that will do the trick for us. I'm
not sure it will solve the problem, I guess more importantly,
because we will be up on multiple renewals and if after the
second one we are dropping down I think we will face a lot of
the same concerns that you have. That's sort of a idea that I
would want to give a little more thought.
Senator Edwards. I've taken too much time already. Thank
you for that response. Let me just make clear I want to work
with you. I want to make this work. We appreciate the work
you're doing. I know first-hand from my folks that what you're
proposing is of critical importance. We just need to be sure
that it's going to do what we want it to do.
Mr. Kris. Yes, sir. Thank you.
Chairman Graham. Thank you, Senator Edwards.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I have three specific
questions, if I could.
The first is a situation in which at least it's my
understanding that FISA actually presents a tougher standard
than generally. This has to do with the--well, the best example
is the trap and trace or the pen registers that the U.S.
Supreme Court has held in the regular context do not present a
constitutional expectation of privacy or constitutional issue,
with respect to just the existence of the call or the numbers
themselves and so on. Yet under FISA the mere existence of the
call or the data exchange is termed a communication and must be
protected from electronic surveillance.
Why is that so? Why isn't that being suggested for change?
Question No. 1.
Question No. 2, is it the fact that FISA does only apply to
non-U.S. citizens? Once somebody is identified as meeting the
criteria agent of a foreign power or terrorist group and so on,
then why should citizenship constitutionally make a difference
here? Why should there be a higher standard?
Finally, I wasn't here when you answered Senator Shelby's
question, Mr. Kris, but I understand from staff that you
expressed a concern about section 204, and I just wondered
whether you could go into greater detail on the problems
associated with section 204 requiring the Government to meet
both title III and FISA standards.
Mr. Kris. Yes, sir. With respect to the first question
concerning pen/trap authority, there is a proposal in the
Administration's bill--section 155--that would lower the
standard for FISA pen/trap orders to make them roughly
analogous to the standard for criminal pen-trap orders. You are
right. Under Smith v. Maryland there is no fourth amendment
privacy interest in pen/trap information, and the standard in
criminal cases is a certification from the applicant that the
information sought is relevant to a criminal investigation.
We're seeking a standard in FISA that would require a
similar certification that the information sought is relevant
to a counterintelligence investigation. So that would be our
section 155.
With respect to FISA and U.S. citizens, U.S. citizens may
be FISA targets if they are agents of a foreign power as
defined by statute, and the statute contains two definitions of
agent of a foreign power. The first applies to any person other
than a U.S. person, and the statute defines a U.S. person to be
a citizen or a permanent resident alien. So that could apply
either to U.S. citizens or foreign persons. Then a second
provision that defines the term for U.S. persons. It has a
slightly higher standard--I may have misspoken. I want to make
sure I get it clearly.
There is a provision that applies to anyone other than a
U.S. person, so only to foreigners, and then another provision
that applies both to U.S. persons and foreigners. So a U.S.
person, a U.S. citizen, can be an agent of a foreign power if
they meet the statutory requirements.
Finally, with respect to----
Senator Kyl. On that, I mentioned the terrorist group. Does
a terrorist organization fit within the foreign power such as
to include for our purposes here today that definition?
Mr. Kris [continuing]. Yes. Under 1801(a) of title 50,
subsection (4), a group engaged in international terrorism--and
that is itself a defined term--is a foreign power, and a U.S.
person can be an agent of an international terrorist group just
as a non-U.S. person can under slightly different standards. So
it does cover a U.S. citizen who is a member of a terrorist
organization and acts to further the goals of that
organization.
With respect to section 204, as I understand it, I think
the gist of section 204 is to allow simultaneous title III and
FISA surveillance of the same target. I guess the concerns I
have about that provision--well, let me back up and just say
this. I think it is a good idea to make clear--and we have a
provision in here that does so--that FISA governs FISA, pen/
trap governs pen/trap, title III governs title III.
Doing them simultaneously I think raises two concerns for
us. The first is that under the purpose analysis that's been
discussed quite a bit today I think when we start using
criminal authorities to get surveillance on a FISA target we
muddy the water. We raise an issue there. I think second, and
this is maybe more pressing, title III does not contain the
special secrecy provisions that FISA contains. In a FISA case
if there is a motion to suppress it's handled ex parte and in
camera so that the defendant doesn't get access to the
application that led to the surveillance. That's critical to
protect our sources and methods. The same is not true in title
III.
So if we were to go up title III on some of these targets
we would risk exposing our sources and methods. That's why we
actually use FISA for most of these targets.
Senator Kyl. Thank you very much.
Chairman Graham. Senator Shelby.
Vice Chairman Shelby. Mr. Chairman, I'll try to follow up
on what Senator Kyl's talking about in a sense.
Mr. Kris, section 105 of the Ashcroft proposals, as I
understand it, would allow U.S. prosecutors to use against U.S.
persons, information obtained by foreign government wiretaps
overseas as long as U.S. intelligence or law enforcement
personnel were not involved in the surveillance. Is that right?
Mr. Kris. Yes, sir, that is correct.
Vice Chairman Shelby. How do you envision the government
establishing at trial that no employee of the U.S. Government
was involved in the foreign surveillance? That might be tough.
It might not be. I don't know.
Mr. Kris. I think it might depend on the case. I can, just
sitting here, sort--it's been a while since I was a trial
lawyer, but I can think of a couple ways. One is we might be
able to call or obtain evidence from the foreign official who
conducted the wire and have the appropriate official over
there, wherever it may be, make a certification, or I think
there are authorities for depositions of foreign witnesses. I
don't want to overstate it because I'm not intimately familiar
with those. But I think there is a mechanism for obtaining
evidence from a foreign government official.
The other way I guess would be to do it from the U.S. side.
The difficulty I guess I see there is it could be anybody.
Vice Chairman Shelby. Certification would be hearsay,
wouldn't it, in a sense, unless there's an exception to it.
Mr. Kris. I think--and Larry you may have more detail on
it--there is a method of getting information from foreign
government officials into evidence in an American court.
Vice Chairman Shelby. Could you furnish that for the
Committee?
Mr. Kris. I would be happy to do that.
Mr. Parkinson. I would say, Senator Shelby, an analogous
situation arose in the African bombing prosecutions in New
York. It was not electronic surveillance but the circumstances
surrounding a statement given by one of the defendants while in
foreign custody was a significant issue. At the end of the day
in pretrial suppression hearings the prosecutor, who was the
primary prosecutor on the case, actually testified about all
the circumstances and what kinds of contact we had with the
foreign government. So it was fully explored during pretrial
proceedings. It actually worked reasonably well.
Vice Chairman Shelby. And it came in?
Mr. Parkinson. Well, yes, eventually the statement came in.
The judge ruled that under the circumstances it was admissible.
Vice Chairman Shelby. I'm just raising the question. I
think it should be raised.
Thank you, Mr. Chairman.
Chairman Graham. Thank you very much, Senator. I wish to
extend my appreciation to this panel for an excellent and I
imagine not the last time that we'll be discussing these
matters with you. I appreciate the comments that I believe all
three of you have made that it would probably be an appropriate
next step for your offices and our staff to continue to pursue
some of the issues raised here.
My goal is to achieve a blending of what the Attorney
General has recommended and what we had been developing prior
to September 11 so that we can present as the intelligence
component of what is likely to be a larger piece of legislation
a piece of legislation, multiple sections, that had as high a
degree of consensus as possible.
I think the question that Senator Wyden raised underscores
that we aren't the only place that this issue is going on. As
you mentioned, Mr. Kris, the reason that maybe you're here
instead of the Attorney General is that he's testifying before
a Judiciary Committee, which has jurisdiction over a number of
other of the Attorney General's proposals, particularly those
that are more of a criminal rather than an intelligence
orientation.
So we've got a lot of work to do, with a sense of urgency
to get on with it. I appreciate your contributions to our
progress in understanding and appreciating the Attorney
General's proposals as well as your comments on those that we
have made.
Mr. McNamara. Thank you again for your leadership, Mr.
Chairman.
Mr. Kris. Thank you, Mr. Chairman.
Chairman Graham. The second panel--and I appreciate your
patience and perseverance--is comprised of Mr. Jeff Smith,
former General Counsel to the Senate Armed Services Committee
and former General Counsel to the CIA, and now a partner of the
law firm of Arnold and Porter; Ms. Kate Martin, director of the
Center for National Security Studies; and Mr. Jerry Berman,
executive director, Center for Democracy and Technology.
Thank you very much to all three of you. Again, I
appreciate your willingness to testify on short notice and
about this important and complex set of legislative proposals.
Mr. Smith.
[The prepared statement of Mr. Smith follows:]
Prepared Statement of Jeffrey H. Smith
Mr. Chairman, it is an honor to appear before you this afternoon to
discuss these issues of great national importance.
You 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 5 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 determination 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 l986 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 some people 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 government'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 specifics 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 the
following 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(1)(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 a
case 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 1 year--that the
FISA court may authorize search and surveillance in the United States
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 government 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 in other 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.
STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD
AND PORTER
Mr. Smith. Thank you, Mr. Chairman. I will be brief. The
hour is late. I have submitted a statement which I will try to
summarize here in just two or three moments.
It's clearly an honor to be here and to be back in front of
this Committee. I was Senator Nunn's designee to this Committee
for many years, and it's an honor to be back.
Also, on behalf of my former colleagues at CIA and in the
Intelligence Community, they are putting forward an
unprecedented level of dedication as we speak, and I think we
all owe them a vote of thanks. George Tenet, also a former
alumni of this great Committee, has put his heart and soul into
this effort and he deserves the Nation's thanks.
As I think about the issues you've asked me to address, it
seems to me there are five principles that we ought to
approach. I have taken a somewhat broader approach than just
some of the specific questions you've asked me. This is a
seamless attack on the United States across international
borders, and in our response we need to have a seamless
response as well. We need to, as you are trying to do, Mr.
Chairman, try to create an integrated response to an integrated
threat. There should be no stovepipes in the U.S. Intelligence
Community that would impair our ability to respond.
Senator Shelby mentioned that in his opening statement. We
don't want any stovepipes. We need to get rid of those.
Much as the Goldwater-Nichols Defense Reorganization Act of
1986 gave increased authority to our CINCS overseas--
commanders-in-chief overseas--I'm rather attracted to the idea
of a civilian CINC to attack counterterrorism, perhaps even
adopting the model where forces from various U.S. agencies are
assigned to this individual much as they are assigned an
overseas CINC so that he or she can accomplish his mission.
Second, our laws and regulations must be reviewed to make
sure that they do not foster the stovepipes that have caused so
many problems in the past, and I am pleased to see that many of
the proposals you've put forward address those changes.
Clearly we have to recognize that many of these rules--such
as grand jury secrecy and so on--were enacted to protect the
rights of our citizens, but we have to find a way to make our
government work more effectively.
Third, I think we should be as aggressive as our
Constitution will permit, particularly with respect to non-U.S.
persons. Yesterday's Washington Post reports on page A18 that
the FBI wanted to initiate electronic surveillance against
Osama bin Ladin's non-U.S. person associates in the United
States prior to the attack, but the Justice Department did not
believe that there was adequate authority, given the
information available to them, to get a FISA tap. If that's the
case, I think we ought to look at the law and see whether it's
working adequately. As Mr. Justice Goldberg said, the
Constitution is not a suicide pact.
Fourth, we will win this war against terrorism, but how we
win it matters. We must not abuse the rule of law at home in
seeking to enforce it overseas. We need to examine each of our
proposal actions with respect to the rule of law and see how it
would be seen by others. It's beyond the scope of what you've
asked me to think about, but, Mr. Chairman, I don't think it's
a good idea to rescind the ban on assassinations. Americans are
not assassins. We've been able to do everything we need to do
without crossing that line. When this war is over, I do not
believe we want a world in which the actions of the United
States have established that the assassination of foreign
leaders is an acceptable norm of international behavior.
Fifth, I think we should mobilize all resources of the
Nation. In particular, I think the Government ought to reach
out to industry and harness some of the genius of our industry
to assist in the war on terrorism. The national objective must
be to assure that our industry remains the world leader in all
of the fields at play here, from aviation to information
technology.
Finally, Mr. Chairman, I know you asked the Administration
witnesses this, but I think particularly from this Committee's
point of view as you move forward I urge you to consult closely
with the Intelligence Community. To be perfectly candid about
it, the Administration's bill was put together in a great rush,
and I think we want to make certain that the issues that
concern the Intelligence Community are adequately reflected in
the Administration's bill or clearly in any bill that the
Congress passes.
I've given the Committee extended comments on details of
the legislation. I'm pretty rusty in many of the ins and outs
of how these laws work, so please forgive my conclusions if
they are inadequate. I won't go through them at any length. Two
or three things I want to mention very briefly.
The first is again beyond the scope of this Committee but
section 110 of the Administration's bill says that companies
are encouraged to provide information to the Government even
including the content of U.S. person communications when in an
emergency it would risk life and limb. I think that's an
honorable provision, but I notice that there's no immunity for
the companies should they do that.
The Administration has also made a proposal that
educational universities have to turn over educational records
of individuals, and in that instance they are proposing to give
the educational institutions immunity. I think a similar grant
of immunity should be considered in the case of U.S. companies
who give to the Government information on U.S. persons
voluntarily.
I'm happy to talk about section 103 of your bill, Mr.
Chairman, that would deal with the question of dirty assets. I
do want to commend you for section 102, which gives the DCI
increased authority over counterterrorism. When I was general
counsel of the CIA we spent an unconscionable amount of time
arguing with the FBI over who was going to issue the report
prior to the 1996 Atlanta Olympics, whether that was the FBI's
responsibility or our responsibility. Those sorts of arguments
ought not take place.
Mr. Chairman, I'm happy to answer your questions.
Chairman Graham. Good. Thank you very much, Mr. Smith. I'm
going to call in your two brethren on this panel and then we
will ask questions to all of you together.
Mr. Berman. We talked and tried to say could we split the
baby in half.
Chairman Graham. I will call on both of you collectively
and you can allocate the time as you wish.
[The prepared statement of Mr. Berman follows:]
Jerry Berman, Executive Director, Center for Democracy & Technology
Mr. Chairman, Mr. Vice-Chairman, members of the Committee, thank
you for the opportunity to testify at this hearing on the momentous
question of improving our nation's defenses against terrorism in a
manner consistent with our fundamental Constitutional liberties.
The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Our core
goals include enhancing privacy protections and preserving the open
architecture of the Internet. Among other activities, CDT coordinates
the Digital Privacy and Security Working Group (DPSWG), a forum for
more than 50 computer, communications, and public interest
organizations, companies and associations working on information
privacy and security issues.
CDT joins the Nation in grief and anger over the devastating loss
of life resulting from the September 11 terrorist hijackings and
attacks against the World Trade Center and the Pentagon. Like many, our
relatively small staff had friends and acquaintances killed in those
heinous acts. We fervently support the efforts of our Government to
hold accountable those who direct and support such atrocities.
It is clear that improvements need to be made in America's counter-
terrorism procedures, and it appears there are many things that can be
done without harming civil liberties. But we know from history that
measures hastily undertaken in times of peril--particularly measures
that weaken controls on government exercise of coercive or intrusive
powers--often infringe civil liberties without enhancing security. In
the current climate, it is all the more important to act deliberately
and ensure that our response is balanced and properly targeted. If we
give up the constitutional freedoms fundamental to our democratic way
of life, then the terrorists will have won.
In that regard, Mr. Chairman, we commend you and the Committee for
holding this hearing, and taking the time to consider the legislative
proposals put forth by the Administration and those you have developed.
Only through the hearing process can you and the American public
understand what is being proposed, how it would change current law, and
whether the changes are responsive to any deficiencies that the
September 11 attack may have revealed. Just as President Bush and his
military advisers are taking their time in planning their response, to
ensure that they hit the terrorist targets with a minimum of collateral
damage, so it is incumbent upon this Congress to avoid collateral
damage to the Constitution.
comments on chairman graham's ``intelligence to prevent terrorism act''
My testimony will focus on the electronic surveillance provisions
in both Chairman Graham's ``Intelligence to Prevent Terrorism Act'' and
the Administration's proposed ``Anti-Terrorism Act of 2001.'' My
colleague Kate Martin will focus on several other provisions in the
bills that need clarification. Many provisions of the Chairman's bill
appear narrowly and approximately crafted to carefully provide desired
intelligence capabilities; however I will also highlight at least one
provision of the bill--Section 201--that may have broad implications
for the Internet.
As you well know, this Committee--and the current legal structure
of the Intelligence Community--were established after Watergate both to
improve intelligence and to ensure that the rights of Americans were
not eroded by the vast and sometimes vague intelligence authorities
that had previously existed. The legal and oversight system for
intelligence sprang not just from a concern about civil liberties, but
also from a concern about improving the efficacy of intelligence
gathering. As such, the Committee mission demands a careful vetting of
any new proposed intelligence authorities and we applaud the committee
for holding these public hearings to do so.
A number of the provisions of both the Chairman's bill and the
Attorney General's bill would change provision of the Foreign
Intelligence Surveillance Act of 1978 (FISA). As the Committee is also
well aware, FISA gave extensive authority to the Intelligence
Community. Under it the FBI and CIA have considerable capability to
conduct electronic surveillance without the high standards (such as a
showing of probable cause of criminal conduct, notice, and eventual
adversarial scrutiny) demanded under our domestic criminal law for
wiretapping. In exchange for these significantly lowered standards
allowing much greater intelligence surveillance, FISA demanded a clear
separation--a wall--between electronic surveillance conducted for
intelligence purposes and electronic surveillance conducted for
criminal law purposes. FISA was based on a clear understanding that it
would not become a back door for use of foreign intelligence
surveillance in domestic criminal investigations. FISA information that
was incidentally collected regarding criminal matters could be shared
across this wall but the purpose of a FISA surveillance had to be
intelligence. This was intended to avoid a major erosion of our
constitutional rights through the lower standards of FISA surveillance.
As we read the Chairman's bill, we applaud what appears to be the
committee's intent to maintain that distinction between intelligence
authorities and domestic law enforcement provisions. We are
particularly pleased to see that the Chairman's bill does not appear to
intended a rewriting of the FISA authorities. As described below,
however, we believe that the Attorney General's bill does not reflect
this deeper understanding and would eviscerate the FISA principles,
allowing foreign intelligence surveillance standards to be used in
criminal investigations. (See, e.g., Administration bill, Sections 151-
157) Thus, while we have concerns about some specific provisions, we
believe the Chairman's bill is far more narrowly crafted, and more
appropriately targeted to the situation at hand.
First and foremost, we note with approval Section 204's attempt to
make it clear that the FBI could conduct both a Title III criminal
wiretap and a FISA wiretap, intercepting the same communications for
different purposes. If done properly, this is a more direct and
appropriate approach to allow criminal investigations and intelligence
investigations to go forward side-by-side. We need to explore with the
committee the specific language of the section, but if it tracks the
intent expressed in the section-by-section analysis, we believe it is
an appropriate approach.
Section 202, regarding the duration of certain FISA surveillance
authorities, raises some concerns. FISA electronic surveillances of
persons are already granted for periods three times longer than Title
III surveillances. Under 202, the duration of surveillance before any
judicial oversight would be extended from 90 days to 1 year. In the
case of physical searches, the period would be extended from 45 days to
1 year. Courts have only turned down one FISA application in the 22-
year history of the statute's use. Judicial review, after 45 or 90
days, hardly seems overly burdensome; if surveillance should continue a
judge will surely--given the history of discretion in these matters--
renew the order. The risk of this provision is that unproductive
surveillance could continue for long periods of time without any
judicial oversight.
Section 203, the assistance section, may also merit more careful
drafting. To the extent, as indicated in the section-by-section
analysis, it is only requiring additional assistance from service
providers that cannot be identified in advance, we believe it is a
measured response. However, we believe the language should be reviewed
with staff to ensure that it is not granting new surveillance
authorities.
Section 201 raises concerns and is one area where we should not
legislate quickly in this complex field of electronic surveillance law.
Frankly, we find the language to be very ambiguous and potentially very
broad. It must undergo further discussion and more careful drafting.
As drafted, the provision would exclude from the definition of
``electronic surveillance'' any ``instruction or signal'' sent to a
computer--if it was not a communication to another person, or was not
for lawful information retrieval--thereby exempting such information
from the reduced standards of FISA. As we read the interaction of Title
III and FISA, this would allow the interception of such signals with no
judicial oversight.
While apparently intended to allow interception of communications
``from a hacker, located abroad'' the provision also sweeps in a broad
class of otherwise protected communications. It would appear to
include, for example:
commands sent remotely to a home security system;
reminders being sent to an online calendar or alarm clock
system;
stock trade commands sent to an electronic trading system;
programs or files being sent (not retrieved) to a computer
system;
or any other commands one sends to one's own computer, Palm Pilot, or
wireless phone. All of these sensitive communications, in which there
is both a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, could now be obtained under FISA
and without judicial oversight.
It is also unclear how the provision could be applied in practice.
In a packet-switched data interception environment like the Internet,
it is difficult if not impossible to know in many cases which packets
to be intercepted contain an ``instruction or signal'' for a computer
and are not for information retrieval, and which contain information
that should require a judicial order. In many, if not in most, cases it
will only be possible to see whether this provision applied after the
communication is intercepted, read, and analyzed. Thus, if this
provision is to be used it would appear to create a license for
interception of numerous communications that would ultimately be
discarded after they are read and analyzed.
Section 201 would appear to create a giant hole in the FISA
electronic surveillance requirements and would allow the interception
of numerous personal communication without judicial oversight. It is in
serious need of redrafting at the very least; if its goal is to allow
interception of hackers attacking a computer, it seems better addressed
by provisions that would allow target computer owners to consent to the
interception of attacks on their computers.
We recommend that this section be deleted or substantially
clarified.
COMMENTS ON ADMINISTRATION PROPOSALS
The Administration's Anti-Terrorism Act of 2001 goes far beyond the
measured response of this committee. It would expand Federal Government
authorities, including the authorities of the intelligence agencies, to
conduct electronic surveillance and otherwise collect information on
U.S. citizens. Some of the changes are quite fundamental. The bill
includes numerous, complex provisions extending the surveillance laws
(while raising many questions about how they will be implemented) and
altering the long-standing distinction between criminal investigations
and foreign intelligence investigations. Many of the changes are not
related to security concerns raised by the September 11 terrorist
attacks. Many are not limited to terrorism cases, but relate to
criminal investigations. Some have been proposed by the Justice
Department before, and some have even been rejected by Congressional
committees.
In terms of the issues within the jurisdiction of this Committee,
these are our top concerns:
Section 153. Foreign Intelligence Information. Allows the
FBI to collect evidence for criminal cases under the looser standards
of foreign intelligence investigations--an end-run around the
relatively stringent requirements for wiretaps in criminal cases and a
breach of the understanding that led to enactment of FISA.
Section 155. Pen Register and Trap and Trace Authority.
Eliminates the only meaningful statutory control that exists on use of
pen registers ant trap and trace devices in intelligence cases.
Section 156. Business records. Allows access to any
business records upon the demand of an FBI agent, with no judicial
review or oversight.
Sec. 157. Miscellaneous national-security authorities--
Amends several key privacy laws, allowing much greater access to
banking, credit, and other consumer records in counter-intelligence
investigations, with no judicial review at all.
A more detailed analysis of the Administration's bill follows
below. Once again, we appreciate and commend this Committee's efforts
to gather public input and to hold this hearing today. We hope the
Committee will move forward with those provisions of its bill and the
Administration's bill that are non-controversial and responsive to the
tragic attacks of September 11, but will defer on the other more
complex and divisive provisions that we have identified. We look
forward to working with the Committee and staff to craft an appropriate
response at this perilous moment in our country's history, and to avoid
a rush to judgment on legislation that could ultimately imperil both
freedom and security.
EXTENDED ANALYSIS OF THE ADMINISTRATION BILL
The Administration's bill has two kinds of provisions that give
rise to concerns: those that would lower the standards for government
surveillance and those that address the difficult question of
information sharing.
In terms of collection standards, our law enforcement and
intelligence agencies already have broad authority to monitor all kinds
of communications, including e-mail. Both the criminal wiretap statute
and the Foreign Intelligence Surveillance Act already cover terrorism.
For some time, it has been recognized that those standards need to
strengthen the standards for government surveillance. We see no
justification for the changes proposed in the Administration bill that
weaken those standards. We are particularly opposed to changes that
would eliminate the judicial review that can be the most important
protection against abuse.
The Foreign Intelligence Surveillance Act allows the FBI to conduct
electronic surveillance and secret physical searches in the United
States, including surveillance of U.S. citizens, in international
terrorism investigations. FISA also authorizes court orders for access
to certain business records. As you know, the standards under FISA are
much lower than the standards for criminal wiretaps, and in return, the
surveillance is supposed to be focused on the collection of
intelligence, not criminal evidence. The FISA court, which last year
approved more than 1000 surveillance requests, has denied only one
request in its 22 year history.
Distinct from the Administration's unsupportable desire to avoid
judicial controls on its authority, perhaps the central and most
important problem facing the Congress is the question of information
sharing. For many years, this has been recognized as a very difficult
question; it is one that will be especially difficult to resolve
satisfactorily given the pressure-cooker atmosphere of this time. We
want to work out a balanced solution. But it cannot be done by wiping
away all rules and barriers. Any solution needs to preserve the
fundamental proposition that the CIA and other intelligence agencies
should not collect information on U.S. citizens in the United States.
Sec. 103. Authorized Disclosure
Allows disclosure of information obtained from wiretaps with any
executive branch official.--This is clearly too broad, especially in
light of the vague language in 18 USC 2517 that allows sharing when
appropriate to the proper performance of the duties of the official
making or receiving the disclosure. The issue of greatest concern to us
is that the CIA and other intelligence agencies would begin compiling
files on U.S. persons. This provision should be narrowed, so that it
authorizes disclosures to personnel with intelligence, protective,
public health or safety, or immigration duties, to the extent that such
disclosure is related to proper performance of the official duties of
the officer receiving the disclosure, and with the proviso that nothing
therein authorizes any change in the existing authorities of any
intelligence agency. (Rather than amending the definition section of
Title III, it might be better to build these concepts directly into
section 2517.)
Sec. 105. Use of Wiretap Information from Foreign Governments
Allows use of surveillance information from foreign governments,
even if it was seized in a manner that would have violated the fourth
amendment.--Section 105 makes surveillance information collected about
Americans by foreign governments (so long as U.S. officials did not
participate in the interception) admissible in U.S. courts even if such
interceptions would have been illegal in the United States. Such a
provision is ripe for abuse and provides unhealthy incentives for more
widespread foreign surveillance of U.S. individuals.
Sec. 151. Period of Orders of Electronic Surveillance of Non-United
States Persons Under Foreign Intelligence Surveillance
Allows secret searches and electronic surveillance for up to 1 year
without judicial supervision.--Under current law, the FISA Court can
order a wiretap of a ``non-U.S. person'' for a period of 90 days, after
which the Government must report to the court on the progress of the
surveillance and justify the need for further surveillance. The court
can authorize physical searches for up to 45 days. The amendment would
extend both timeframes to 1 year, meaning that after the Government's
initial ex parte showing there would be no judicial review for 1 year.
We think this is too long. We recommend that the current timeframes be
retained for the initial approval. (After all, they are already far
longer than the 30 days for which criminal wiretaps, including criminal
wiretaps in terrorism cases, can be approved.) If, after 90-days of
electronic surveillance or 45 days of physical searches, the Government
can show a continuing justification for the surveillance or search
authority, then we would agree that the court could authorize a longer
surveillance. We would recommend 1 year for electronic surveillance,
180 days for physical searches (thus preserving the current law's
recognition that physical searches are more problematic than electronic
searches and need to be authorized for shorter periods of time).
Section 152 Multi-Point Authority
Allows roving taps, including against U.S. citizens, in foreign
intelligence cases with no limits--ignoring the Constitution's
requirement that the place to be searched must be ``particularly
described.''--This section purports to afford the FBI ``roving tap''
authority for intelligence investigations similar to what already
exists for criminal investigations. See 18 USC 2518(11). A roving tap
allows the Government to intercept whatever phone or e-mail account a
suspect uses, even if the Government cannot specify it in advance.
Roving tap authority is constitutionally suspect, at best, since it
runs counter to the Fourth Amendment's requirement that any search
order ``particularly describe the place to be searched.'' However, the
proposed language places no limitation on the exercise of the roving
tap authority and offers the FBI no guidance for its exercise. The
proposed change merely authorizes the court to issue to any ``person''
an order commanding them to cooperate with a surveillance request by
the Government. If roving tap authority is supposed to focus on the
targeted person, not on the telephone instrument, then the intercept
authority should be limited to the target--it should only allow
interception of communications to which the target of the surveillance
is a party. Such limitations are absent from this proposal.
Section 153. Foreign Intelligence Information
Allows the FBI to collect evidence for criminal cases under the
looser standards of foreign intelligence investigations--an end-run
around the relatively stringent requirements for wiretaps in Title
III.--This section, which merely changes the word ``the'' to ``a,''
would actually make a fundamental change in the structure of the
wiretap laws. It would permit the Government to use the more lenient
FISA procedures in criminal investigations which have any counter-
intelligence purposes and would destroy the distinctions which
justified granting different standards under FISA in the first place.
Under existing law, FISA can be used only if foreign intelligence
gathering is ``the'' purpose of the surveillance. The proposed
provision would permit FISA's use if this is ``a'' purpose, even if the
primary purpose was to gather evidence for a criminal prosecution. This
is an extraordinary change in the law which has no justification.
Section 154. Foreign Intelligence Information Sharing
With no standards, permits the sharing of grand jury information,
Title III wiretap information, and any other ``foreign intelligence
information'' acquired in a criminal case with many different Federal
officials not involved in law enforcement.--This is a sweeping change
in the law. ``Foreign intelligence information'' is not defined. The
provision places no limits on the purpose for which the information may
be shared, and no limit on its reuse or redisclosure. It requires no
showing of need and includes no standard of supervisory review or
approval. As written, a criminal investigator could share with White
House staff information collected about foreign policy critics of the
Administration. The provision, at the very least, should be drastically
curtailed.
Section 155. Pen Register and Trap and Trace Authority
Eliminates the only meaningful statutory control that exists on use
of pen register and trap and trace devices in intelligence cases.--The
law currently requires a showing that the person being surveilled is a
foreign power, an agent of a foreign power or an individual engaged in
international terrorism or clandestine intelligence activities. This
amendment would eliminate that standard and permit the use of FISA for
pen registers whenever the Government claimed that it was relevant to
an ongoing intelligence investigation. Contrary to the DOJ's assertion
in its section-by-
section, this is not the same as the standard for pen registers in
criminal cases. There, the surveillance must be relevant to an ongoing
criminal investigation, which is moored to the criminal law. There is
no similar constraint on foreign intelligence investigations, since
they can be opened in the absence of any suspicion of criminal conduct.
This provision ignores the fact that the Government was granted the
special rules of FISA only for situations that involved intelligence
gathering about foreign powers.
Section 156. Business Records
Allows access to any business records upon the demand of an FBI
agent, with no judicial review or oversight. Traditionally, the FBI had
no ability to compel disclosure of information in intelligence
investigations. The compulsory authorities were limited to criminal
cases, where the open, adversarial nature of the system offered
protections against abuse. For example, in criminal cases, including
international terrorism cases, the FBI can obtain grand jury subpoenas,
under the supervision of the prosecutor and the court, where the
information is relevant to a criminal investigation. The FBI has no
ability to invoke the power of the grand jury in intelligence
investigations, since those investigations are conducted without regard
to any suspicion of criminal activity. In 1998, in an expansion of
intelligence powers, FISA was amended to give the FBI a new means to
compel disclosure of records from airlines, bus companies, car rental
companies and hotels: Congress created a procedure allowing the FBI to
go to any FISA judge or to a magistrate. The FBI had only to specify
that the records sought were for a foreign intelligence or
international terrorism investigation and that there were specific and
articulable facts giving reason to believe that the person to whom the
records pertain is an agent of a foreign power. This is not a
burdensome procedure, but it brought the compulsory process under some
judicial control. The Administration's bill would repeal the 1998
changes and permit the use of ``administrative subpoenas'' rather than
an application to a court to get any business records under FISA. An
administrative subpoena is a piece of paper signed by an FBI agent.
There is no judicial review, no standard of justification, no
oversight. Particularly in intelligence investigations, which are not
even limited by the scope of the criminal law and in which there is no
involvement of the U.S. Attorney's Office, FBI agents should not have
such unreviewable discretion to compel disclosure of personal
information.
See. 157. Miscellaneous National-Security Authorities
Allows much greater access to banking, credit, and other consumer
records in counter-intelligence investigations.--Current provisions of
law allow the Federal Government to obtain sensitive banking, credit,
and other consumer records under the relaxed and secretive oversight of
FISA--but only when there are ``specific and articulable'' facts
showing that the target consumer is ``a foreign power or the agent of a
foreign power.'' Section 157 would eliminate these essential
requirement, mandating disclosure of this sensitive consumer data
simply if an FBI official certifies that they are needed for a
counterintelligence investigation (and with an ex parte court order for
access to credit reports). Section 157 would eliminate the ``agent of a
foreign power'' standard in:
The Fair Credit Reporting Act, allowing access to records
from consumer reporting agencies (including the names of all financial
institutions where accounts are held, all past addresses and employers,
and credit reports);
The Financial Right to Privacy Act, broadly allowing
access to financial records; and
The Electronic Communications Privacy Act, allowing access
to telephone and toll billing records, and, newly added, all
``electronic communication transactional records.''
As such, the Section would greatly increase access to the personal
information of consumers or groups who are not agents of foreign
powers. And in each case access the institutions granting access to
consumer information would be prohibited from disclosing that
information or records had been obtained.
Section 158. Disclosure of Educational Records
Amends the law protecting education records to permit access to
them.--While this might be justified in terrorism cases, the provision
covers all cases involving ``national security'' and is far too
sweeping.
Section 159. Presidential Authority
Does not appear to permit judicial challenge to seizure of
property. At the very least, there must be such opportunity. A second
provision allows the use of secret evidence. Use of such evidence, if
ever permitted, must be on a much higher standard than that the
information is properly classified, as provided here. The Government
must be required to persuade a court that the disclosure to the party
would result in imminent and serious harm and the court must require
the Government to provide sanitized information to the party.
STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Berman. I am the executive director of the Center for
Democracy and Technology, which specializes in communications
and internet privacy and freedom issues. But I've been around a
long time, and in prior incarnations I was part of the lobbying
effort to create this Committee in 1976 and also to pass and
help draft the Foreign Intelligence Surveillance Act of 1978
and the Electronic Communications Privacy Act of 1986, working
closely as a civil libertarian with Administration and Hill
people to try and strike a careful balance between national
security and civil liberties. I think the effort proved
successful.
We have to go back and remember that this Committee was set
up after Watergate for two purposes--first, to improve our
intelligence capabilities and monitor that and keep track of
that; and second to make sure that the CIA and FBI and other
intelligence agencies do not go off the rails again, as they
had done during the Watergate era, where they were
investigating domestic dissent and Martin Luther King.
So we must be careful, and what we learned in that period
is that emergency powers passed very quickly during World War
II eventually spread out and eventually, instead of going after
our foreign foes, which we need to do in this critical crisis,
began to go after domestic dissent and it was not a happy
period.
So, learning from that lesson, I think the Chairman asked
the right question. Why are we in a race for a multi-multi-
section bill covering the waterfront, which has provisions on
law enforcement, intelligence and so forth? What needs to pass
now and what needs to pass later?
The key issue that's been discussed here deals with the
wall that was built on electronic surveillance--let me focus on
that--the wall between electronic surveillance for intelligence
purposes and electronic surveillance for law enforcement. The
standards for intelligence are lower, and we're not just
talking about electronic surveillance; we're talking about
black bag jobs. We're talking about secret searches which never
get turned over to the target of the investigation. The
standards are important to give national security a leg up, but
they need to be carefully reviewed, they need judicial
supervision, and they need to be carefully thought out.
We applaud the Committee in your statute proposal. That
wall is preserved, or at least the intent appears to preserve
that wall by requiring that if you're conducting an
intelligence investigation conduct it there, under FISA. If you
also have a criminal investigation or information that leads to
a criminal investigation, open a title III warrant. That dual
authority maintains that wall.
If there is a problem between our intelligence agencies, it
is not by eliminating the primary purpose test, which may be
unconstitutional--Mr. DeWine raised that question and a number
of the Committee--but surgically dealing with information-
sharing that may be barred in criminal cases where you find out
information that's of intelligence--and I would say
investigation related to terrorism and international terrorism,
which in a criminal wiretap ought to be turned over to
appropriate agencies under proper circumstances.
That's a sharing issue, not a standard issue. That's why
the unwillingness to share and clarifying that is an important
thing we can work on. It requires some surgery. So you preserve
that standard.
There are issues. You try to extend the length of a
surveillance to a year, where foreign persons are concerned,
and 90 days for physical surveillance. The issue there is that
we're talking about secret searches again which never get
disclosed. The judicial supervision is to ensure that there are
not fishing expeditions, and the question is, since no FISA
wiretap or extension except one has been turned down in the 22-
year history of the statute, what is the bureaucratic problem
of continuing that supervision?
I did not hear an explanation of why that's necessary.
That's one section we have a concern.
I do have a concern in your bill with the gathering of
machine instructions to a computer. I don't know how you pick
those bits and bytes out of the air. Dealing with the computer,
bits are bits, and instructions that may look like maybe a non-
human communication to a computer also may contain packets
which are communications. We need to figure out how to sort
that out. That takes a little time.
But still, you're on the track of trying to maintain the
demarcation. You need to look carefully at the Justice
Department bill because it has vast implications for your
mission, both intelligence and protecting our civil liberties.
It breaks down that purpose, the primary purpose test. It
allows roving wiretap authority, which is available in law
enforcement, but under much broader discretion. It's not tied
to any device. You're not just following telephones, you're
following a person. Does that mean that you can follow the
person to any computer they are using, or can you follow them
to a park and use electronic surveillance with a spike mike on
whoever they are talking to?
These need to be examined. So there are expansions that
need. Again, in terms of maintaining your intelligence mission,
turning over grand jury information to the White House for
intelligence purposes and not just to intelligence agencies is
a very serious question. Maybe it should occur in an
intelligence investigation, but you need to look at
compromising sources and methods, the implications of having
that information turned over. A grand jury investigation, from
law enforcement investigation, wiretaps, not only to the
intelligence but the other people in the Administration, what
is the implications of those standards being taken down.
I want to emphasize that they are not only breaching the
wall on the intelligence side but on the law enforcement side
lowering authorities in the name of going after international
terrorism which apply across all criminal investigations, not
just terrorism investigations and then not just using
information-sharing from the criminal side for terrorism
investigations but in a wide range for any intelligence
purpose. That is a very broad, sweeping change in our law.
I could go on to business records and privacy issues that
it raises. There is a lot to examine, and since I cannot on the
public record find any of the sweeping authority that they
already have having interfered with this investigation in any
way, that it was an intelligence failure and not a restrictions
failure, why can't we take the time and go through this in a
careful way, maybe a couple months, but to try and have a
statute on the President's desk in 2 weeks without floor action
is not the appropriate way to strike the balance between
national security and civil liberties.
Thank you.
Chairman Graham. Ms. Martin.
[The prepared statement of Ms. Martin follows:]
Statement of Morton H. Halperin, Chair, Advisory Board, and Kate
Martin, Director, on Behalf of the Center for National Security Studies
Thank you Mr. Chairman and Vice Chairman for the opportunity to
testify today on behalf of the Center for National Security Studies.
The Center is a civil liberties organization, which for 30 years has
worked to ensure that civil liberties and human rights are not eroded
in the name of national security. The Center is guided by the
conviction that our national security must and can be protected without
undermining the fundamental rights of individuals guaranteed by the
Bill of Rights. In its work over the years on legislation from the
Foreign Intelligence Surveillance Act to the Intelligence Oversight
Act, the Center has begun with the premise that both national security
interests and civil liberties protections must be taken seriously and
that by doing so, solutions to apparent conflicts can often be found
without compromising either.
We appear before you today at a time of great mourning, when it is
difficult to turn our thoughts and attention from anything but our
grief and trouble. And we appreciate the enormous efforts of those
individuals who have put their own grief aside to concentrate on
searching for survivors, comforting those who have suffered most
directly and finding and holding accountable the perpetrators of these
crimes.
It is not too soon to begin thinking about how we can improve our
ability to prevent such unspeakable events from occurring again.
However, as we do so we must resolve to act in a way that protects our
liberties as well as our security and which recalls the lessons of the
past from times when we permitted our concerns for security to accept
erosions of our liberty that we now regret. The Alien and Sedition
Acts, the Internment of Japanese Americans, McCarthyism, and the
efforts of intelligence agencies and the FBI to disrupt the civil
rights and anti-war movements were not our proudest moments. We must
not repeat them or lay the seeds for future abuses.
We owe it to all those innocent people who were murdered to reflect
upon those basic principles and values which should inform our
discussion today. What distinguishes us as a people from our fellow
human beings who committed these terrible acts is our commitment to law
and to individual freedom. It is a commitment to law made deliberately,
with calm reflection and an opportunity for public debate. The genius
of democracy is the understanding that in the noisy and seemingly
inefficient marketplace of ideas, the wisest decisions will be made.
And certainly there is no more important subject than how to protect
both our liberty and security most especially at a time like this when
both may be so at risk. The American people look to the Members of this
Committee to make law as the founders of the Constitution envisaged
when they set up this legislative body, after a full public debate
informed by facts, analysis and the chance for reflection. We owe
nothing less to those who have been killed and to our children born and
to be born.
We commend the Chair and the Vice Chair for their hard work and
quick action to outline proposals intended to help prevent such
horrific acts in the future and to focus on needed structural reforms
in the Intelligence Community. We are grateful to this committee for
holding public hearings and for inviting the Center for National
Security Studies to testify. At the same time, we call upon this
committee not to precipitously make changes to long-standing rules on
some of the most technically complicated and difficult issues before
the Congress.
In urging you to proceed calmly and deliberately we speak on behalf
of a coalition of more than 140 organizations from all ends of the
political spectrum who last week all agreed on a Statement, which reads
in part:
In Defense of Freedom
This tragedy requires all Americans to examine carefully the
steps our country may now take to reduce the risk of future
terrorist attacks. We need to consider proposals calmly and
deliberately with a determination not to erode the liberties
and freedoms that are at the core of the American way of life.
We need to ensure that actions by our government uphold the
principles of a democratic society, accountable government and
international law, and that all decisions are taken in a manner
consistent with the Constitution. We can, as we have in the
past, in times of war and of peace, reconcile the requirements
of security with the demands of liberty. We should resist the
temptation to enact proposals in the mistaken belief that
anything that may be called anti-terrorist will necessarily
provide greater security. We must have faith in our democratic
system and our Constitution, and in our ability to protect at
the same time both the freedom and the security of all
Americans.
I ask permission, Mr. Chairman to submit for the record as an
attachment to my statement the full statement of the In Defense of
Freedom coalition and a list of the organizational and individual
signers of the statement. The danger of haste is not just to our civil
liberties but equally to our security. We face an equal danger that in
the understandable rush to do something, what is done will not be
effective in making us any safer, that it will substitute for the
difficult analysis and work that is needed to figure out just how to
prevent such attacks in the future. This is particularly true with
regard to widening surveillance of Americans, where extending the net
of surveillance, rather than doing the difficult work of trying to
figure out who should be targeted, may well lead to information
overload, where it will not be possible for the government to
distinguish the important from the insignificant.
We have had the Chairman's bill since Saturday morning and the
administration's proposals being considered by this committee for 2
days more than that. We have done our best to provide the Committee
with our preliminary analysis of the proposals.
But most significantly, we urge you before acting, to hold
additional hearings, to obtain in writing the careful analyses needed
of what the current authorities are and what changes would be effected
by these proposals, why such changes would be useful and what the risks
will be. These are very technical and complicated issues, with enormous
implications for both civil liberties and our security and we need to
act carefully.
If there are specific authorities immediately needed by the current
investigators into last week's acts, those authorities could be
separated from the rest of the proposals and considered as quickly as
possible. But those proposals designed to prevent such intelligence
failures in the future, can only be done wisely and effectively after
more is known about the cause of the failure and a public discussion
about how to fix them.
On the subject of haste, we welcome the provision that would undo
the hasty action of the Senate 10 days ago in repealing the DCI
guidelines on recruitment of assets involved in terrorism or other
human rights violations. That provision (sec. 815 in the September 13
amendment to H.R. 2500) was apparently based on the misunderstanding
that the existing guidelines had prevented the CIA from recruiting
terrorist informants, when the guidelines in fact simply required
procedures intended to insure that the appropriate high level officials
at the agency approved the use of any such informants. They were
adopted in response to the report by the President's Intelligence
Oversight Board that the CIA had not kept this committee informed as
required by law of serious human rights violations. We understand that
Section 103 of S. 1448, the Graham-Feinstein bill is intended to
override section 815 passed September 13 by specifically authorizing
what is already the case, that the CIA may use terrorist informants. We
would suggest that the section 103 simply be amended to add that agency
officers may do so ``pursuant to guidelines or directives issued by the
agency.''
We have organized our discussion of the proposals before the
Committee into three categories:
Changes to the Foreign Intelligence Surveillance Act.
Proposal to allow wiretap evidence obtained overseas in
violation of Fourth Amendment standards to be introduced against
Americans in U.S. courts; and
Changes to the current authorities of the Director of
Central Intelligence and rules regarding sharing of information
gathered on Americans with the Intelligence Community.
I. PROPOSED CHANGE TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
We have attempted to coordinate our testimony with that being
presented by the Center for Democracy and Technology. Mr. Berman will
provide you with detailed comments on the specific provisions, but
since one of us was intimately involved in the lengthy negotiations
which led to the enactment of FISA, we wanted to provide you with some
general remarks relating to the structures and purposes of FISA and of
the efforts to protect civil liberties while giving the government the
authority it needed to conduct electronic surveillance to gather
foreign intelligence.
It is important to remember that FISA was a grant of authority to
the government to conduct surveillance, which the Supreme Court had
held was clearly within the ambit covered by the Fourth Amendment. The
Court had suggested that the warrant requirements of the Fourth
Amendment might be different in national security matters and Congress
and the Administration worked together, with the active involvement of
outside groups and scholars, over a period of several years to craft
the careful compromise incorporated in FISA.
At the heart of FISA was this trade. Congress would authorize
electronic surveillance of foreign powers and their agents within the
United States under a standard different and less stringent than
required for national security wiretaps and it would authorize the
government never to tell the targets that their conversations were
intercepted. In return the government accepted greater judicial
involvement and oversight of the process (carried out in an ex parte
rather than adversarial manner however) and a wall to insure that it
did not use these procedures to gather information for criminal
prosecutions.
Proposals to alter FISA need to be understood in this context. It
is not an anomaly that the government has to go back to court more
often than under Title III to get authority to continue surveillance of
a private person lawfully resident in the United States. Since the
person will never be told of the surveillance nor have an opportunity
to move to have the surveillance records purged, it is important that a
judge check regularly, at least as a surveillance begins, to be sure
that the government's suspicion that the person was acting as the agent
of a foreign power was correct and that the surveillance was producing
foreign intelligence information while minimizing the collection of
other information.
We urge you to keep this basic structure in mind as you consider
objections to specific provisions. We urge also that you remember the
care with which FISA was enacted and maintain the same spirit of
skepticism and openness as this committee considers the proposed
amendments.
In this connection, it is also important to remember that
investigations of terrorism pose particularly difficult problems
because of the intersection of First Amendment, Fourth Amendment and
national security concerns. Unlike international narcotics
investigations, it is important to distinguish between those engaged in
criminal terrorist activity and those who may share in the religious or
political beliefs of the terrorists, or even their ethnic background,
without engaging in any unlawful acts.
Regarding specific proposals on both FISA and changes to other
statues permitting national security investigations of financial
records and other information, we refer you to Mr. Berman's testimony
in addition to our comments below.
Elimination of the Primary Purpose Requirement, Administration Bill
Sec. 153
We want to stress our concern, as spelled out by Mr. Berman, about
the administration's proposal to eviscerate the original premise of the
FISA, that its procedures would only be employed when the primary
purpose of the surveillance was to gather foreign intelligence. The
administration's proposal in section 153 would turn the statutory
scheme on its head by allowing the use of FISA surveillance when the
government's primary purpose is to bring criminal charges against an
individual, a change which we believe would violate basic Fourth
Amendment guarantees.
Duration of Authority to Conduct Surveillance and Searches of Non-U.S.
Persons Under FISA. Graham-Feinstein Bill, Sec. 202,
Administration Bill, Sec. 151
These sections would extend the period allowed for the conduct of
FISA surveillance and searches of non-U.S. persons from 90 days and 45
days respectively, to 1 year for both surveillance and searches. For
the reasons outlined above, the current limitations are an integral
part of the balance intended to provide judicial supervision of the use
of secret wiretaps and secret searches targeted against individuals,
who, while not permanent residents or U.S. citizens may well be long-
time legal residents and are protected by the Fourth Amendment. The
statute currently provides 1-year authorization for surveillance and
searches of embassies and similar establishments, because the Fourth
Amendment does not apply to foreign embassies. If there is some
necessity, other than to avoid inconvenience, for longer authorizations
for individuals, we would suggest considering an amendment that would
allow extended authorizations on a second application if the government
made a showing that the initial surveillance or search did in fact
obtain foreign government information. In such a case, the second order
could authorize electronic surveillance for an additional 6 months,
rather than the current 90 days, and authorize physical searches for 90
days rather than the currently allowed 45 days.
II. PROPOSAL TO ALLOW WIRETAP EVIDENCE OBTAINED OVERSEAS IN VIOLATION
OF FOURTH AMENDMENT STANDARDS TO BE USED AGAINST AMERICANS IN U.S.
COURTS, ADMINISTRATION BILL, SECTION 105
As described by the administration, section 105 of its bill would
provide that United States prosecutors may use against American
citizens information collected by a foreign government even if the
collection would have violated the Fourth Amendment. As the
administration points out, as criminal law enforcement becomes more of
a global effort, such information will come to play a larger role in
Federal prosecutions and indeed other provisions of the administration
bill would extend the extraterritorial reach of U.S. criminal law to
even more crimes than are currently covered today.
Section 105 would for the first time codify the extraordinary view
that as the United States works to promote the rule of law throughout
the world and to extend the reach of U.S. criminal law, it should leave
the Bill of Rights behind. Implicit in this approach is the view that
the Constitution is merely an inconvenience to law enforcement rather
than acknowledging it as the best instrument yet written to govern the
relations of a government to the governed.
Certainly, it is not obvious how to implement the protections of
the Fourth Amendment against unreasonable searches and seizures in a
new era of global law enforcement. It is an issue that has just begun
to be examined by the courts. While a bare majority of the Supreme
Court has held that the Fourth Amendment does not apply to the search
and seizure of property owned by a nonresident alien and located in a
foreign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it
has affirmed that the Fifth and Sixth Amendments do protect Americans
overseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be
considered under international human rights law, as it is quite likely
that unreasonable searches and seizures that don't meet Fourth
Amendment standards also violate existing human rights treaties signed
by the United States. The question of how to implement Fourth Amendment
protections for overseas searches will probably at some point require
congressional action, but it is a difficult and complicated issue that
cannot be adequately addressed in the context of an emergency response
to last week's terror attack.
III. CHANGES TO CURRENT LAW CONCERNING SHARING OF INFORMATION ON
AMERICANS WITH THE INTELLIGENCE COMMUNITY
Several provisions of both bills would significantly change current
statutory authorities and responsibilities for conducting terrorism
investigations involving Americans or other U.S. persons inside the
United States. The problem of effective coordination between such
investigations and overseas intelligence activities is certainly one of
the most important ones before this Committee. It is also one of the
most difficult, both in terms of actually insuring effective
investigations and making sure that the unintended consequences are not
to repeal crucial protections for individual rights.
Since the creation of the CIA in the 1947 National Security Act,
there has been an attempt to distinguish between law enforcement, the
collection of information on Americans and others to be used in
criminal prosecutions of individuals, and foreign intelligence, the
collection of information about the plans, intentions and capabilities
of foreign governments and organizations. When the CIA was created, its
charter specifically prohibited the agency from any ``law enforcement
or internal security functions'' 50 U.S.C. 403-3(d)(1). As was
documented in the Church committee report, it was the blurring of the
distinction between law enforcement and foreign intelligence national
security investigations that led to the abuses by the intelligence
agencies outlined in that report. Many of the reforms intended to
prevent such abuses from happening again, were explicitly predicated
upon recognizing the differences between law enforcement and
intelligence, they have different objectives and require different
means and different rules should apply in order to protect individual
liberties. The most obvious examples are the different rules for
criminal wiretaps set out in Title III and for foreign intelligence
wiretaps in the Foreign Intelligence Surveillance Act, as well as the
two sets of Attorney General guidelines governing FBI investigations,
one for General Crimes, including domestic terrorism, and a different
set for Foreign Counter-Intelligence investigations.
At the same time, it has always been recognized that some matters,
most particularly internationally-sponsored terrorism and espionage on
behalf of foreign powers implicate both law enforcement and foreign
intelligence concerns. In the past few years, there has been an
increasing number of situations where intelligence and law enforcement
interests coincide and there are a substantial number of executive
branch regulations, directives, working groups and practices that have
been developed to address the myriad specific issues that are involved;
for example reconciling the need for intelligence agencies to keep the
identities of their human sources a secret with due process
requirements that a criminal defendant be informed of the evidence
against him and allowed to cross-examine his accusers.
The threat of terrorism obviously requires effective and close
coordination between the Intelligence Community and law enforcement. We
welcome these proposals as the first step toward examining whether
statutory changes are now needed. However, we urge the Committee to
take the time to examine the issue in depth beginning with an analysis
of existing rules and practices. Nothing is more central to the
protection of the liberties of Americans from the abuses of the past
than the distinction between law enforcement and intelligence. The
current proposals would be a sea change in laws that have been on the
books for 30 years. Before that is done, we urge the Committee to act
slowly and deliberately. We would welcome the opportunity to sit down
with you and the Judiciary Committee together to work on solutions that
will ensure an effective anti-terrorism effort without sacrificing
individual liberties.
The specific provisions at issue include the following sections in
the Department of Justice draft:
Section 103, repealing the present prohibition on disclosing Title
III intercepts of Americans' conversations to the Intelligence
Community, other than the FBI.
Sections 154 and 354, repealing the present prohibitions on sharing
grand jury information and other criminal investigation information
with the Intelligence Community, other than the F1BI.
The provisions in the Graham-Feinstein bill on this subject, are
much narrower. However, they would also effect an important shift in
current responsibilities that needs much more extensive discussion and
analysis, before being acted upon. Specifically, Section 101 would
shift from the Attorney General to the Director of Central Intelligence
the responsibility for determining which Americans should be targeted
for FISA surveillance.
Section 102 of the Graham-Feinstein bill would also change the
foreign intelligence definitions in the National Security Act of 1947.
This provision would change the definitions in the National
Security Act of 1947 so that ``international terrorism'' is included in
the definition of ``foreign intelligence'' rather than
``counterintelligence.'' While, this may be a wise idea, it requires an
extensive reading of the many and various laws and regulations which
incorporate the current definitions in the Act to determine what the
effect of the change would be, which we have not had an opportunity to
do.
MISCELLANEOUS. SEC. 104 TEMPORARY AUTHORITY TO DEFER REPORTS TO
CONGRESS
This seems like a good way to insure that adequate resources may be
directed to the September 11 attack while also insuring that the
Congress continue to receive the information required by the
Intelligence Oversight Act on all intelligence activities. In this
connection, we note that paragraph (c) entitled ``Exception for Certain
Reports'' should refer to section 501 of the National Security Act (50
U.S.C. 413) as well as to sections 502 and 503 (50 U.S.C. secs 413a and
413b).
______
In Defense of Freedom at a Time of Crisis
1. On September 11, 2001 thousands of people lost their lives in a
brutal assault on the American people and the American form of
government. We mourn the loss of these innocent lives and insist that
those who perpetrated these acts be held accountable.
2. This tragedy requires all Americans to examine carefully the
steps our country may now take to reduce the risk of future terrorist
attacks.
3. We need to consider proposals calmly and deliberately with a
determination not to erode the liberties and freedoms that are at the
core of the American way of life.
4. We need to ensure that actions by our government uphold the
principles of a democratic society, accountable government and
international law, and that all decisions are taken in a manner
consistent with the Constitution.
5. We can, as we have in the past, in times of war and of peace,
reconcile the requirements of security with the demands of liberty.
6. We should resist the temptation to enact proposals in the
mistaken belief that anything that may be called anti-terrorist will
necessarily provide greater security.
7. We should resist efforts to target people because of their race,
religion, ethnic background or appearance, including immigrants in
general, Arab Americans and Muslims.
8. We affirm the right of peaceful dissent, protected by the First
Amendment, now, when it is most at risk.
9. We should applaud our political leaders in the days ahead who
have the courage to say that our freedoms should not be limited.
10. We must have faith in our democratic system and our
Constitution, and in our ability to protect at the same time both the
freedom and the security of all Americans.
Endorsed by:
Al-Fatiha Foundation, Washington, DC
Alliance for Justice, Washington, DC
American-Arab Anti-Discrimination Committee, Washington, DC
American Association of Law Libraries, Washington, DC
American Association of University Women, Washington, DC
American Civil Liberties Union, Washington, DC
American Conservative Union, Alexandria, VA
American Federation of State, County and Municipal Employees,
Washington, DC
American Friends Service Committee--Washington Office, Washington, DC
American Humanist Association, Washington, DC
American Immigration Lawyers Association, Washington, DC
American Liberty Foundation, Alexandria, VA
American Muslim Alliance, Newark, CA
American Muslim Council, Washington, DC
American Policy Center, Warrenton, VA
Americans for Democratic Action, Washington, DC
Americans for Religious Liberty, Silver Spring, MD
Americans for Tax Reform, Washington, DC
Amnesty International--USA, Washington, DC
Arab American Institute, Washington, DC
Asian American Legal Defense and Education Fund, New York, NY
Asian Pacific American Labor Alliance, Washington, DC
Association for Competitive Technology, Washington, DC
Association of American Physicians and Surgeons, Tucson, AZ
Baptist Joint Committee on Public Affairs, Washington, DC
Benton Foundation, Washington, DC
California First Amendment Coalition, Sacramento, CA
Campaign for America, Washington, DC
Catholic Vote.org, Washington, DC
Center for Democracy and Technology, Washington, DC
Center for Digital Democracy, Washington, DC
Center for Economic and Social Rights, Brooklyn, NY
Center for Media Education, Washington, DC
Center for National Security Studies, Washington, DC
Chinese for Affirmative Action, San Francisco, CA
Citizens and Immigrants for Equal Justice, Mesquite, TX
Citizens Committee for the Right to Keep and Bear Arms, Bellevue, WA
Citizens' Commission on Civil Rights, Washington, DC
Civil Rights Forum on Communications Policy, Washington, DC
Common Cause, Washington, DC
Common Sense for Drug Policy Legislative Group, Washington, DC
Competitive Enterprise Institute, Washington, DC
Consumer Action, San Francisco, CA
Council on American Islamic Relations, Washington, DC
Criminal Justice Policy Foundation, Washington, DC
Democracy Foundation, Ballwin, MO
Doctors for Disaster Preparedness, Tucson, AZ
Drug Reform Coordination Network, Washington, DC
Eagle Forum Washington, DC
Eagle Forum of Alabama, Birmingham, AL
Electronic Privacy Information Center (EPIC), Washington, DC
Ethics & Religious Liberty Commission of the Southern Baptist
Convention, Nashville, TN
Families Against Mandatory Minimums Foundation, Washington, DC
Family Violence Clinic, Columbia, MO
Federation of American Scientists, Washington, DC
First Amendment Foundation, Washington, DC
Free Congress Foundation, Washington, DC
Free the Eagle, Fairfax, VA
Freedom of Information Center, Columbia, MO
Friends Committee on National Legislation, Washington, DC
Fund for New Priorities in America, New York, NY
Fund for the Fourth Amendment, Washington, DC
Global Strategic Management, Annapolis, MD
God Bless America, http://myweb.ecomplanet.com/GOBA1953/defauft.htm
Government Accountability Project, Washington, DC
Gun Owners of America, Springfield, VA
Harvard Information Infrastructure Project at Harvard University,
Cambridge, MA
Health Privacy Project, Georgetown University, Washington, DC
Human Rights Watch, Washington, DC
International Religious Liberty Association, www.irla.org
Independent Institute, Oakland, CA
Islamic Institute, Washington, DC
James Madison Project, Washington, DC
Japanese American Citizens League, San Francisco, CA
Latina and Latino Critical Legal Theory, Inc., Coral Gables, FL
Lawyers Committee for Human Rights, Washington, DC
Leadership Conference on Civil Rights, Washington, DC
Lindesmith Center--Drug Policy Foundation, New York, NY
MoveOn.org, Washington, DC
Multiracial Activist & Abolitionist Examiner, Alexandria, VA
Muslim Public Affairs Council, Washington, DC
National Asian Pacific American Bar Association, Washington, DC
National Asian Pacific American Legal Consortium, Washington, DC
National Association for the Advancement of Colored People, Board of
Directors, Washington, DC
National Association of Criminal Defense Lawyers, Washington, DC
National Black Police Association, Washington, DC
National Coalition to Protect Political Freedom, Washington, DC
National Committee Against Repressive Legislation, Washington, DC
National Consumers League, Washington, DC
National Council of Churches of Christ, Washington, DC
National Council of La Raza, Washington, DC
National Gay and Lesbian Task Force, Washington, DC
National Lawyers Guild, New York, NY
National Legal Aid and Defender Association, Washington, DC
National Native American Bar Association, Birmingham, AL
National Youth Advocacy Coalition, Washington, DC
Net Action, San Francisco, CA
Network: A National Catholic Social Justice Lobby, Washington, DC
Nuremberg Legacy Project, Washington, DC
North American Council for Muslim Women, Great Falls, VA
OMB Watch, Washington, DC
Patrick Henry Center for Individual Liberty, Fairfax, VA
People for the American Way, Washington, DC
Philadelphia II, Washington, DC
Physicians for Human Rights, Washington, DC
Privacilla.org, http://www.privacilla.org
Privacyactivism.org, Bellevue, WA
Privacy International, Washington, DC
Privacy Rights Clearinghouse, San Diego, CA
Privacy Times, Washington, DC
Project On Government Oversight, Washington, DC
Research & Policy Reform Center, Washington, DC
Rutherford Institute, Charlottesville, VA
Second Amendment Foundation, Bellevue, WA
Sentencing Project, Washington, DC
Seventh-Day Adventist Church, World Headquarters, Silver Spring, MD
Sixty Plus Association, Arlington, VA
Society of American Law Teachers, Minneapolis, MN
Sovereign Society, Ltd., Baltimore, MD
Square One Media Network, Seattle, WA
Strategic Issues Research Institute, Arlington, VA
Unitarian Universalist Association of Congregations, Washington, DC
United Church of Christ, Justice & Witness Ministries
United States Committee for Refugees & Immigration and Refugee
Services, Washington, DC
USAction, Washington, DC
Washington Lawyers' Committee for Civil Rights and Urban Affairs,
Washington, DC
WILD for Human Rights, San Francisco, CA
Women's International League for Peace and Freedom, U.S. Section,
Washington, DC
STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL
SECURITY STUDIES
Ms. Martin. Thank you, Mr. Chairman and Mr. Vice Chairman,
for the opportunity to testify here today on behalf of the
Center for National Security Studies, an organization which has
for 30 years worked to protect civil liberties from being
eroded in the name of national security.
We appear today before you at a time of deep mourning, when
it is in fact quite difficult to turn our attention to this
kind of issue and to anything other than our grief and sorrow
at the losses that we all suffered. At the same time, we
recognize that it is not too soon to begin thinking about how
we can improve our ability to prevent such unspeakable events
from occurring again. However, as we do so we must resolve to
act in a way that protects our liberties as well as our
security and which recalls the lessons of the past from times
when we were permitting our concerns for security to accept
erosions of our liberties that we now regret.
What distinguishes us as a people from our fellow human
beings who committed these terrible acts is our commitment to
law and individual freedom. It is a commitment to law made
deliberately, with calm reflection and with opportunity for
public debate. Certainly there is no more important subject
than how to protect both our liberty and our security. The
American people look to the Members of this Committee to make
law as the founders of the Constitution envisioned when they
set up this legislative body, after a full public debate
informed by facts, analysis and the chance for reflection.
We commend the Committee for its hard work and quick action
to outline proposals intended to help prevent such horrific
acts in the future and to focus on needed structural reforms in
the Intelligence Community. We are grateful to the Committee
for holding these public hearings and for inviting
representatives of our community to testify.
At the same time, we call upon this Committee not to
precipitously make changes to longstanding rules on some of the
most technically complicated and difficult issues before the
Congress, with enormous implications for civil liberties. In
urging reflection and time for calm deliberation, we speak on
behalf of a coalition of more than 140 organizations from all
ends of the political spectrum who last week agreed upon a
joint statement to the Congress urging such calmness. That
statement I have attached to my prepared remarks.
I want to mention that the danger of haste of course is not
just to civil liberties but equally to our security. We face an
equal danger that in the understandable rush to do something
what is done will not be effective in making us any safer, that
it will substitute for the difficult analysis and work that is
needed to figure out just how to prevent such attacks in the
future. This is particularly true with regard to widening
surveillance of Americans where extending the net of
surveillance rather than doing the difficult work of trying to
figure out who should be targeted may well lead to information
overload where it will not be possible for the Government to
distinguish the important from the insignificant.
We have had the Chairman's bill since Saturday morning and
the Administration's proposals being considered by this
Committee for 2 days longer than that. We have done our best to
provide the Committee with our preliminary analysis of the
proposals and it is attached in our written statement. But most
significantly, we urge you before acting to hold additional
hearings to obtain in writing the careful analyses needed of
what the current authorities are and what changes would be
effected by these proposals, why such changes would be useful,
and what the risks will be.
If there are specific authorities immediately needed by the
current investigators into last week's acts, those authorities
could be separated from the rest of the proposals and
considered as quickly as possible. But those proposals designed
to prevent such intelligence failures in the future, as Senator
Shelby mentioned, can only be done wisely and effectively after
more is known about the cause of the failure and we have a
public discussion about how to fix them.
I just wanted to mention on the subject of haste we applaud
the Chairman's bill in undoing what the Senate did on September
13 when it overruled the DCI guidelines on the recruitment of
assets and we suggest that the provision about the recruitment
of assets that's contained in the Chairman's bill is the
appropriate way to deal with that issue, and we would only
suggest that, in line with some of the comments made by earlier
witnesses, that the section could be amended to add that Agency
officers may recruit terrorist informants ``pursuant to
guidelines or directives issued by the Agency.''
I want to basically, I think, second Mr. Berman's remarks
about particular changes to the Foreign Intelligence
Surveillance Act and to the information-sharing authorities and
just make a couple of brief comments about those.
I think it's important to keep in mind that what the
Foreign Intelligence Surveillance Act does is authorizes secret
surveillance and secret searches of the houses of Americans,
and it does so in the context of a carefully drafted statute
which many individuals in this room spent some number of months
and years working out. We urge you to keep this in mind as you
consider amending the statute and that you remember the care
with which FISA was enacted. We especially urge you to remember
that investigations of terrorism, while perhaps the most
important undertaking for the Intelligence Community in the
near or perhaps long-term future, at the same time pose the
most difficult constitutional problems with regard to
collection of information and investigations of Americans.
That is because of the unique intersection of first
amendment, fourth amendment, and national security concerns
involved in the investigation of Americans for terrorist
activity. Unlike international narcotics investigations, for
example, it is important to distinguish between those engaged
in criminal terrorist activity and those who may share in the
religious or political beliefs of the terrorists and even their
ethnic background without, however, engaging in any unlawful
acts. For 30 years we have had on the books a set of statutes
and an even more extensive set of Agency guidelines, some
classified and some public, all of which are designed to
address the problem of effective investigation of terrorist
activity while not infringing on first amendment rights and not
targeting individuals based on their ethnic background.
Before those provisions are changed, we urge the Committee
to take the time to sit down and look at what the perhaps
unintended consequences might be of basic statutory changes.
I think I won't talk at the moment about the primary
purpose requirement. I do believe, however, that this Committee
has a constitutional responsibility itself to determine whether
or not in your view the lower standards of FISA authorizing
secret searches and secret surveillance would be constitutional
if the primary purpose requirement were to be eliminated. I do
not think it is an answer to say that the court will not
address that question except on a case-by-case basis. I think
this Committee and this body has a constitutional obligation to
make that determination, not only in terms of its national
security responsibilities but even more so in terms of its
responsibility to protect individual liberties.
I want to just mention that we have serious concerns about
the proposal that would allow wiretap evidence obtained
overseas in violation of fourth amendment standards to be used
against Americans in the U.S. courts. This is also a new and
very difficult legal issue that comes about as part of the
ever-increasing globalization of U.S. law enforcement. Without,
I believe, adequate thought or adequate development of the law
in the court, the Administration proposal would for the first
time codify the extraordinary view that as the United States
works to promote the rule of law throughout the world and to
extend the reach of our criminal law it should leave the Bill
of Rights behind.
Implicit in this approach is the view that the Constitution
is merely an inconvenience to law enforcement rather than an
acknowledgment of it as the best instrument yet written by
human beings to govern the relations of a government to the
governed. Certainly it is not an easy question as to how to
apply fourth amendment standards to searches and seizures of
evidence gathered overseas to be used in the U.S. court. We
suggest that it is an issue that at some time will most likely
require congressional action and congressional determination.
We suggest that in the terrible days following last week's
tragedy is not the time to address that problem.
Finally, there is the question of the changes to the
authorities and the responsibilities for information-sharing
between the Intelligence Community and the law enforcement
community about terrorism. This is, I believe, one of the most
serious and difficult problems facing this Committee and this
country at this moment. There is no doubt about it that the
threat of terrorism requires effective and close coordination
between the Intelligence Community and law enforcement. It is
also true, though, that since the creation of CIA, when the
National Security Act provided explicitly that the CIA would
have no law enforcement or internal security functions, that we
have recognized that the division and the distinction between
law enforcement and intelligence is very important in
protecting civil liberties.
At the same time, of course, we have recognized that there
are areas like terrorism and espionage which overlap both
intelligence and law enforcement. Nevertheless, we have a whole
series of both statutes and present guidelines and directives
on the books that recognize the distinction and in fact are
premised on that distinction--for example, the FISA and Title
III or the Attorney General guidelines for the conduct of FBI
investigations, one of which is classified and covers foreign
intelligence matters and one of which covers general crimes.
Before we change the authorities set forth in the National
Security Act we believe it's important to have a careful and
cautious examination of what the effect would be of changing
those longstanding authorities, with an eye again, let me
stress, to improving the needed coordination between the two
communities to provide the most effective kind of both law
enforcement and intelligence against terrorist organizations,
but to do that in a way that is respectful and protects the
liberties in this country.
Thank you.
Chairman Graham. Thank you very much, Ms. Martin, and thank
you to each of the panelists.
In your three comments the importance of our appreciation
of the wall, as you described it, Mr. Berman, between using
intrusive surveillance for foreign intelligence purposes and
using intrusive surveillance for criminal purposes is a caution
that is well placed and that we do need to keep very much in
the forefront.
One of the areas in which this is raised with particular
stark impact would be if we were to amend the law to say that
you could get a FISA wiretap with something less than foreign
intelligence being the primary purpose. As I gather, the
recommendation of the Attorney General is that we eliminate
that standard and then leave it up to the FISA court on a case-
by-case basis to make judgments of if it's not the primary
purposes, if it's 50/50 or if it's 40/60, where do you reach
the point where you do lose the constitutional basis for a FISA
tap.
To put that into its context, and if you feel, Mr. Smith,
based on your previous background and current understanding,
especially your role at the CIA, what is the problem that is
raised by using the primary purpose standard as the basis of
getting a FISA wiretap? What are the kind of cases that are
compromised or threats to our security that are tolerated
because we use this high standard for getting a FISA wiretap?
Mr. Smith. In my experience, Mr. Chairman, what happens is
that oftentimes it's not clear at the outset of an
investigation whether this should be pursued as a law
enforcement matter and ultimately possibly prosecution or
simply to collect foreign intelligence and take action later
on. Oftentimes you'll start down one road and find that you
have to shift to another.
The question as I understand it with respect to ``a''
versus ``the'' is whether or not, particularly in the case of a
U.S. person, the courts would ultimately hold that the test had
been met under the fourth amendment to engage in this intrusive
surveillance.
I'm not sure I know what the right answer is. My guess is
that the folks in OLC at the Justice Department are right,
namely that, depending on the facts of the cases as they come
along, the courts would be willing to give a considerable
deference if, for example, the first criminal cases that go to
court are foreign nationals who presumably have fewer fourth
amendment rights than Americans. They might not be so troubled
if it's just ``a'' purpose and it then turns into a
prosecution. In the case of a U.S. person, it may come out
quite differently.
I think my colleagues on the panel are right. This is a
hard issue and needs a lot of careful thought, and I think the
Administration ought to be asked quite directly why do you need
this. Why can you not proceed under the current procedures? I
don't know the answer to that one.
Mr. Berman. I think the record is they haven't had
difficulty here, and if you turn up in your intelligence
investigation that you've got a money-laundering case, your
bill says go get a title III warrant. Again I come back and say
that if there is a wall between a criminal investigation with
wiretapping, sharing relevant information in the middle of an
investigation of money laundering it turns out that someone's
laundering money for bin Ladin and that comes up in a criminal
wiretap, there's the grounds for a FISA tap, which I think is
probably already on, but there ought to be some way to turn
that information over to an intelligence agency.
There's an information-sharing issue which may be a
restriction in both statutes that could be worked on. But it's
not the standard; it's the sharing of the data.
I also think that if you went on a fast-track/slow-track
that you could take the most troubling issues of when you might
get information about a terrorist investigation in a grand
jury. I think that the Justice Department and the CIA will make
strong cases that there are circumstances when use of illegal
wiretap information may be critical in such a case. But rather
than amending the criminal statutes across the board to provide
that kind of information for any intelligence purpose, why
don't we try and craft a terrorism section that deals with this
crisis and the special circumstances of a new kind of enemy,
one that we've got to be careful. Kate's absolutely right that
this is an intersection between national security, law
enforcement and civil liberties.
The new terrorist target is someone who drinks Bud, has a
college education, goes to work at some company that Jeff may
be representing, and lives in Laurel. How do we do that kind of
targeting and not be over broad and at the same time, while
we're worrying about collateral damage in Afghanistan, so we
don't prevent our ability to penetrate those organizations by
making everyone hate us across the whole Islamic world, you
don't want the same thing to happen here.
Over-surveillance, the sense that there is an agent behind
every bush, will make innocent people of that community stop
talking to our agents. That's what happened in Watergate and
you don't want it to happen here. It will be counterproductive
not just to civil liberties but to your intelligence mission.
Vice Chairman Shelby. Mr. Chairman.
Chairman Graham. Yes, Senator.
Vice Chairman Shelby. I appreciate all of your testimony,
and, Jeff, we welcome you back here.
As I understand it--and I'll direct this to all of you, my
observation first and then a question--under the criminal
investigations you have today do the statutes afford the FBI
roving tap authority for intelligence investigations? In other
words, they would like what they now have for criminal
investigations; is that right, Mr. Berman?
Mr. Berman. They have it for criminal investigations. It's
always with a shudder. I'm not saying we like it, because you
particularize things. I think that following telephones under
FISA may make sense, but the way that it's drafted it's not
clear that it's tied to devices any more; it's tied to the
person and wherever that person is. We need some explanation of
what they mean by that.
Vice Chairman Shelby. As we discuss this matter, we're
mindful of the Constitution, which grants us our rights. But we
are also mindful here today of a heck of a challenge to our way
of life, and what we want to do is have some balance. We do not
want to destroy our constitutional rights for our citizens, but
at the same time we want to give, if we can, under the auspices
of the Constitution, the tools to the Justice Department and
the FBI to fight this and win this without doing damage to the
rest of us. Isn't this what we're trying to achieve?
Mr. Berman. I think we can do that. It doesn't require
meeting the content standard. It can be a lower standard. But
it needs to be more carefully drafted.
Vice Chairman Shelby. The precision of language is very
important, as we all know, and words have meanings, and
whatever we do we ought to do carefully. But I believe we've
got to do something to help the FBI, to help the Justice
Department, because we cannot sit back and do nothing. None of
us would want to do that. But we can be wise in what we do, if
we're careful in what we do, can't we, Jeff? Isn't that your
basic message here today?
Ms. Martin. Definitely.
Vice Chairman Shelby. Thank you, Mr. Chairman.
Chairman Graham. To follow on with what Senator Shelby was
just saying, it seems to me prior to September 11 we had been
aware of the fact that many of our previous laws had been
developed with a certain expectation of what the technology was
going to be. It was that telephone that sat on your desk or
your night table, and that was how you communicated. Now, if we
could step back and say what was the philosophical context,
rationale, and constitutionally acceptable basis for allowing
that telephone sitting on your desk to be wiretapped, then ask
the question, now, in the new technology, where the same act,
communication from human being to human being, is being carried
out but the technology is substantially different, how do we
adapt the laws to be consistent with the philosophy that
allowed the static telephone to be wiretapped to now allow the
computer or the cellular phone or the other forms of
communication to be similarly accessed under the same
circumstances that we tolerated before.
Mr. Berman. As I work a lot on the internet I've been
talking to a lot of staffs about on a pen register all you're
saying is, ``Well, all we want from the internet is the same
information from a computer that we get from a telephone, the
pen register,'' which is the dialed digits. There is no
equivalent on the internet. The transactional information that
follows an e-mail has a name, it has a subject line, often with
the subject line having the whole content of the message in it,
which is, ``Hey, Joe, join the meeting,'' and several messages
like that tell you as much as what's in the content of the
message.
I'm not saying that you don't provide pen register
authority for advanced technologies and give the computers a
pass, but you have to look at what's the equivalent. You've got
a very low standard because you think you're only getting
telephone numbers. If you're getting the content of the
communications in many cases, shouldn't we be more circumspect
and have a higher review. So that's the kind of technology
issue we're prepared to address, but we need some dialog.
Chairman Graham. I'm going to recognize Senator Shelby, but
maybe I'm expressing a personal frustration. I thank you for
your comments about having this open hearing and I look forward
to having more as we focus on these issues. On the other hand,
sometimes the factual predicate for needing these changes is
stated to be classified. So we then have to go behind closed
doors to hear what it is that is making it necessary to propose
these changes.
Then we come back in a public hearing and we can't be as
candid as we are being today in terms of a discourse between
different points of view.
Mr. Berman. Just back on the process of FISA, this dialog
between public and private, there was all classified
information that we were dealing with in trying to craft the
warrant requirement for FISA. It was done with dialog between
the Justice Department and industry and civil liberties. All
they did was they would present us, instead of classified
documents, hypotheticals that were not related to and would not
blow a source and method, and we would try and wrestle with
what they thought were problems and see whether we could fit
them into statutes. And you can do that. You have to do that
because not everyone's going to be under a clearance.
But there is a lot that can be discussed in an open session
or not in a classified room, where people can be brought
together to explore these issues and work toward solutions.
Ms. Martin. I just want to second that. I think that this
Committee has over the years many examples of crafting very
complicated law in a public manner, with lots of public
hearings, and that it's important to do so for another reason
that hasn't really been talked about at great length, which is
the public confidence in the process.
I think that while on the one hand the American public is
very eager for you to do what's necessary to protect it, I
think that we have to not forget that the suspicion of the
secret intelligence agencies is just below the surface and
that, as Jerry mentioned, it is important that that not become
a cancer, especially in our minority communities in the United
States and that if you're talking about expanding intelligence
authorities that that be done in a way that people come to
understand why it's necessary and what built-in protections are
in there against abuses. That is very important.
That's the role I think this Committee has played over the
years with us in having these dialogs.
Mr. Berman. I also point out that there are many
authorities in the Justice Department bill where the authority
is being delegated down, to a magistrate in any town. They are
making decisions about nationwide searches involving terrorist
activity. That is a prescription for real mischief because it
ought to go to people who have some understanding. That's the
same argument the Intelligence Community would make if we said
why don't we just let any District Court judge approve these
FISA taps. There's a special court sitting there.
Maybe it ought to have more appointees than just made by
the Chief Justice of the United States, but there is expertise
that ought to be involved and you've got to worry about how
that process is played out. I don't think the bill that's on a
fast track has been drafted carefully.
Vice Chairman Shelby. Mr. Chairman, just a few
observations. I think we all believe--I hope we do--that the
security of our people, our Nation is very, very important.
That's one of our highest priorities. We also believe strongly
in the Bill of Rights, as well as in our constitutional rights
apart from the Bill of Rights.
Now, I think one of the problems is going to be to make
sure that we move but that we move wisely and that whatever we
craft and whatever we pass and the President signs into law,
one, will give the tools to the Justice Department to do its
job. I think that's paramount. Also, we should be careful in
our language because if we pass something that's
constitutionally questionable or suspect, it will be
challenged. If we use all of this and develop great cases and
prosecute the terrorists, if we find them--and I hope we will--
and then ultimately the courts throw out some of this because
of some laws that we haven't thought out, we're back to square
one, if not in a hole, aren't we?
Mr. Berman. Yes.
Vice Chairman Shelby. Jeff, you've been the General
Counsel.
Mr. Smith. You are absolutely right, Senator. You're very
wise to do this.
I want to pick up on something that Jerry said that fits
right here. We need to be very careful about this. Drafting
FISA, I was involved on the Government side at the time. It
was, I think, a very good exercise where we all sat down at the
staff level in what seemed endless meetings to hammer this out.
Jerry mentioned the role of industry. Let me encourage you and
others to bring in industry, particularly the high tech
industry whose equipment and technology is involved here. They
were very much involved in 1978 when we were working on FISA,
and I think they can bring a lot to the table because they
understand precisely in ways that I certainly don't as to how
the technology works, No. 1, and No. 2, perhaps equally
important, they can tell you where it's headed.
Because a year from now we may be facing new technology and
new challenges that we cannot now anticipate, and this is an
opportunity to legislate and get it right. The old carpenter's
adage of measure twice and cut once seems to be appropriate
here.
Vice Chairman Shelby. Thank you.
Mr. Berman. We did receive a letter from Senator Leahy to
CDT's Digital Privacy and Security Working Group, in which Jeff
has participated many times. It has civil liberties
organizations, but it has a very broad cross-section of
communications industry--telephone companies, Microsoft, AOL--
working and asked to give advice on the communications
infrastructure impacts of these proposals. I think that's worth
having. We'd be glad to provide it to this Committee also.
Vice Chairman Shelby. Well, let's win this war against
terrorism.
Mr. Berman. Absolutely.
Vice Chairman Shelby. Protect our liberties too.
Chairman Graham. If I could close with a reference to
American history, I have almost finished the biography of John
Adams, and clearly the low point in John Adams' personal and
political life was his signing the alien and sedition laws,
which were a response early in our Nation's history to what was
perceived to be a serious security attack.
Those laws proved to be not only unacceptable legally but
they turned out to be unacceptable politically, as John Adams
became the first incumbent President in our Nation's history to
be defeated, in large part because of his role in the alien and
sedition laws. Then they were subsequently repealed by his
successor, Thomas Jefferson.
So the American people also have a history of concern about
precipitous actions and there is a potential political price to
be paid as well as the other concerns that you've discussed. So
I would hope that we would be cognizant of all of those warning
signals. Yes, we want to give to our security agencies the
powers that they need to protect our citizens. We also want to
do it in a way that does not cause the United States to become
like those very people that we are trying to protect our
citizens against. It would be the ultimate victory of the
terrorists if they were to force us to become like them by our
surrendering of our individual freedoms and liberties, which so
distinguish us as Americans.
So, with those thoughts, I want to extend again my thanks
and appreciation. Please be receptive if and, I expect, as we
call upon you over the next few days and weeks for your further
counsel on these issues.
Mr. Berman. We applaud you for holding this hearing.
Chairman Graham. Thank you.
[Whereupon, at 6:17 p.m., the Committee adjourned.]
