Congressional Record: September 24, 2002 (Senate)
Page S9109-S9110
U.S.A. PATRIOT ACT
Mr. HATCH. Mr. President, I ask unanimous consent that on behalf of
the listed Senators, a joint statement of myself, Senator Thurmond,
Senator Kyl, Senator DeWine, Senator Sessions, and Senator McConnell
regarding the Committee on the Judiciary, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The U.S.A. Patriot Act in Practice: Shedding Light on the FISA Process
Prior to the U.S.A. PATRIOT Act of 2001, the Foreign
Intelligence Surveillance Act of 1978 authorized the
government to gather intelligence on agents of foreign powers
with less stringent requirements than those required for
surveillance of domestic criminals. The courts interpreted
FISA as requiring that gathering foreign intelligence be the
"primary purpose" of the surveillance of the foreign agent.
See United States v. Duggan, 743 F.2d 59, 77 (2nd Cir. 1984);
United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.
1980), cert. denied, 454 U.S. 1154 (1982).
This statutory regime worked well during the cold war for
conducting surveillance on spies who were either foreign
nationals employed by foreign government working under
diplomatic cover at foreign embassies in the United States,
or United States persons in this country who had been
recruited to spy by foreign intelligence agencies. Both were
clearly "agents of a foreign power," and gathering foreign
intelligence on the activities of these targets was generally
the "primary purpose," if not the only purpose, of the
surveillance.
The statutory regime did not work as well with respect to
terrorists, who did not work for a foreign government, who
often financed their operations with criminal activities,
such as drug dealing, and who began to target American
interests. It was more difficult to determine if such
terrorists were "agents of a foreign power" and it was
difficult for the government to keep the appropriate types of
investigators, intelligence or criminal, involved in the
operation.
To determine what the "primary purpose" of a surveillance
was, courts looked to what type of federal investigators were
managing and directing the surveillance operation. If
intelligence investigators managed and directed the
surveillance, courts interpreted the primary purpose of the
surveillance to be gathering foreign intelligence, thus
requiring the government to comply with the less stringent
FISA surveillance procedures. On the other hand, if criminal
investigators managed and directed the surveillance, courts
interpreted the primary purpose of the surveillance to be
gathering criminal evidence, thus requiring the government to
comply with the more stringent Title III wiretap procedures
or to exclude the evidence from court. In short, the courts
held that there could be only one primary purpose, and it was
either gathering foreign intelligence or gathering criminal
evidence. See, e.g., Truong, 629 F.2d at 912-13.
The attacks on September 11, 2001, appeared to be
orchestrated by the Al Qaeda, an international terrorist
organization, with no embassies or diplomats, and whose
operatives were loosely associated small groups who often
engaged in criminal activities. The intelligence agencies and
criminal investigators were unable to analyze and disseminate
information needed to detect and prevent the September 11th
attacks partly because of restrictions on their ability to
share information and coordinate tactical strategies in order
to disrupt foreign terrorist activities. It was apparent that
the existing court interpretation of the FISA requirement of
"primary purpose" impeded the sharing and coordination of
information between criminal and intelligence investigators
on foreign terrorists.
Accordingly, Congress enacted the USA Patriot Act, in part,
to replace the "primary purpose" requirement with a less
stringent requirement, and to increase consultation and
coordination efforts between intelligence and federal law
enforcement officers to investigate and protect against
foreign terrorist threats. See Sections 218 and 504. Three
replacement standards were discussed for determining how
large a purpose gathering foreign intelligence must be in
order for a FISA warrant to issue: (1) a substantial purpose;
(2) a significant purpose; and (3) a purpose. With multiple
purposes in an investigation of an international terrorist,
there could be only one "primary" purpose, but more than
one "substantial", "significant," or "a" purposes. A
"substantial" purpose of gathering foreign intelligence
was viewed to be less than primary, but more than a de
[[Page S9110]]
minimis purpose. A "significant" purpose of gathering
foreign intelligence was deemed to be less than
"significant," but more than a de minimis purpose. And
"a purpose" of gathering foreign intelligence was deemed
to include a de minimis purpose.
Congress chose the word "significant" purpose to replace
the existing FISA requirement of a "primary" purpose. By
this we intended that the purpose to gather intelligence
could be less than the main or dominant purpose, but
nonetheless important and not de minimis. Because a
significant purpose of gathering foreign intelligence was not
the primary or dominant purpose, it was clear to us that in a
FISA search or surveillance involving multiple purposes,
gathering criminal evidence could be the primary purpose as
long as gathering foreign intelligence was a significant
purpose in the investigation. See generally, e.g., United
States v. Soto-Silva, 129 F.3d 340, 347 (5th Cir. 1997)
(holding that a defendant who maintained a house for the
"primary purpose" of taking care of a family member also
maintained the house for a "significant purpose" of
distributing marijuana).
The Department of Justice confirmed the meaning of the
change from primary purpose to significant purpose in a
letter supporting the amendment sent on October 1, 2001, to
the Chairmen and Ranking Members of the House and Senate
Judiciary and Intelligence Committees. The Department stated
that the amendment would recognize that "the courts should
not deny [the President] the authority to conduct
intelligence searches even when the national security purpose
is secondary to criminal prosecution."
The understanding of increased cooperation between
intelligence and law enforcement was confirmed by voices in
the House and the Senate in the days and weeks immediately
following the new FISA standard. "This legislation
authorizes the sharing of information between criminal
investigators and those engaged in foreign intelligence-
gathering. It provides for enhanced wiretap and surveillance
authority. It brings the basis building blocks of a criminal
investigation, pen registers and trap and trace provisions,
into the 21st century to deal with e-mails and Internet
communications." 147 Cong. Rec. H7196 (daily ed. Oct. 23,
2001) (statement of Rep. Sensenbrenner). "The core
provisions of the legislation we passed in the Senate 2 weeks
ago remain firmly in place. For instance, in the future, our
law enforcement and intelligence communities will be able to
share information and cooperate fully in protecting our
Nation against terrorist attacks." 147 Cong. Rec. S11016
(daily ed. Oct. 25, 2001) (statement of Sen. Hatch).
In addition, a news publication confirmed the general
understanding on Capitol Hill during the consideration of the
U.S.A. PATRIOT Act. The Congressional Quarterly reported
separately on October 8, 9, and 23, 2001: "Under the
measure, for example, law enforcement could carry out a FISA
operation even of the primary purpose was a criminal
investigation." Congr. Q., House Action Reports, Fact Sheet
No. 107-33, at p. 3 (Oct. 9, 2001); see Cong. Q., House
Action Reports, Legislative Week, at p. 3 (Oct. 23, 2001);
Cong. Q., House Action Reports, Legislative Week, a p. 13
(Oct. 8, 2001). FISA may not be used "even if the primary
purpose is a criminal investigation." Cong. Q. Billwatch
Brief, H.R. 3162 (Oct. 23, 2001).
It was our intent when we included the plain language of
Section 218 of the U.S.A. PATRIOT Act and when we voted for
the Act as a whole to change FISA to allow a foreign
intelligence surveillance warrant to be obtained when "a
significant" purpose of the surveillance was to gather
foreign intelligence, even when the primary purpose of the
surveillance was the gathering of criminal evidence.
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