S. Hrg. 107-1013
S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
=======================================================================
HEARING
Before the
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
__________
SECOND SESSION
__________
HEARING ON S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
__________
JULY 31, 2002
90-301 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
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SELECT COMMITTEE ON INTELLIGENCE
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
THOMAS A. DASCHLE, South Dakota, Ex Officio
TRENT LOTT, Mississippi, Ex Officio
------
Alfred Cumming, Staff Director
Bill Duhnke, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
Page
Hearing held in Washington, D.C., July 31, 2002
Statement of:
Baker, James A., Counsel for Intelligence Policy, Department
of Justice................................................. 22
Berman, Jerry, Executive Director, Center for Democracy and
Technology................................................. 41
Bowman, Marion E., Deputy General Counsel, Federal Bureau of
Investigation.............................................. 14
Fishman, Charles S., Professor of Law, the Catholic
University of America...................................... 47
Manget, Frederic F., Deputy General Counsel, Central
Intelligence Agency........................................ 28
Schumer, The Hon. Charles E., United States Senator from the
State of New York.......................................... 7
Shelby, The Hon. Richard C., United States Senator from the
State of Alabama........................................... 4
Supplemental Materials:
Letter dated August 1, 2002 from Philip Heymann.............. 59
Letter dated July 30, 2002 from National Association of
Police Organizations, Inc.................................. 63
HEARING ON S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
----------
WEDNESDAY, JULY 31, 2002
U.S. Senate,
Select Committee on Intelligence,
Washington, DC
The Committee met, pursuant to notice, at 2:35 p.m., in
Room SDG-50, Dirksen Senate Office Building, the Honorable Bob
Graham (chairman of the committee), presiding.
Committee members present: Senators Graham, Feinstein, Kyl,
and DeWine.
Chairman Graham. I call the meeting to order.
Today we will discuss two important legislative proposals
to amend the Foreign Intelligence Surveillance Act of 1978. We
will hear in a few moments from the Senators who have co-
sponsored the bill, Senators Kyl and DeWine, who are members of
our committee, and Senator Schumer, whom we are fortunate to
have joining us today to discuss the bill which he has co-
sponsored with Senator Kyl.
I note that some of the questions the Senators may ask the
witnesses might require the witnesses to discuss classified
information. We are prepared, if necessary, to have a closed
session in Hart-219 at the conclusion of the open hearing,
should the line of questioning require.
The Foreign Intelligence Surveillance Act, or FISA,
provides a statutory framework by which the United States
government can secure court orders permitting an electronic
surveillance or a physical search of a person inside the United
States for purposes of collecting foreign intelligence. Last
year, the USA Patriot Act made several changes to FISA to make
it more efficient and effective as a tool in the fight against
terrorism.
These changes included: permitting an order to issue on a
showing by the government that the collection of foreign
intelligence is a significant purpose of the surveillance or
search--the previous law had required foreign intelligence
collection to be the primary purpose; second, permitting roving
wiretaps under FISA as they have been available in criminal
surveillance context--this change was designed to thwart the
ability of a target to evade surveillance by changing hotel
rooms or discarding a cellular phone; and finally, extending
the duration of FISA orders against targets who are not U.S.
persons.
The two bills that we are here to discuss today will
provide additional changes to FISA for the purpose of reducing
both the nature and scope of the showing the government must
make to obtain a surveillance order against suspected
terrorists inside the United States who are neither citizens
nor legal resident aliens. As we did with the changes made in
FISA last year, the Congress must examine revisions of this
nature to assure that they strike the proper balance between
enhancing our ability to fight terrorism while protecting our
privacy and liberties. That is the purpose of the hearing
today.
S. 286 was introduced by Senators Schumer and Kyl to
provide an additional modification to the FISA application
process. Under current law the government has to show the court
that the person suspected of engaging in international
terrorism is a, quote, ``agent of a foreign power''--in other
words, if the target is affiliated with a terrorist group which
operates overseas. The Schumer-Kyl bill would eliminate the
requirement of showing that nexus, but only for potential
targets who are neither U.S. citizens or green card holders.
Accordingly, under the Schumer-Kyl approach, the government
would have to show that the target of the surveillance is,
quote, ``engaged in international terrorism or activities in
preparation therefore.''
S. 2659, introduced by Senator DeWine, would change the
level of proof that has to be made in a FISA application from
the current probable cause to reasonable suspicion. Our
witnesses today will explain the difference in the evidentiary
standard required. As with the Schumer-Kyl provision, the
DeWine amendment would retain the existing higher evidentiary
standard of probable cause for U.S. citizens and legal
permanent resident aliens. I understand that Senator DeWine has
made some modifications to his language and will explain those
today.
After the Vice Chairman, who will join us shortly, has made
his remarks, I will ask Senators Kyl, DeWine and Schumer to
speak about their provisions. After the Senators have completed
their comments, I will turn to the first panel, which is
comprised of two witnesses from the Department of Justice and
the CIA. These will be Mr. Jim Baker who is Chief of the Office
of Intelligence Policy and Review at the Department of Justice,
and Mr. Marion Spike Bowman, Deputy General Counsel of the FBI.
Representing the Director of Central Intelligence is Mr. Fred
Manget, Deputy General Counsel of the CIA.
The second panel will provide the perspective of experts
from outside the United States government--Mr. Jerry Berman,
the Executive Director of the Center for Democracy and
Technology, and Professor Clifford Fishman, Professor of Law at
the Catholic University Law School.
Senator Shelby has indicated that he will be slightly
detained in his arrival. Unless there are other opening
statements from Members, I would suggest we turn to Senator
Schumer and then Senator Kyl. After the completion of their
comments on the legislation they have introduced, then Senator
DeWine to comment on his legislation.
Senator Schumer.
[The prepared statements of Vice Chairman Shelby and
Senator Schumer follow:]
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STATEMENT OF THE HONORABLE CHARLES E. SCHUMER, UNITED STATES
SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. And before I
begin, I just want to thank you and the entire Committee. Your
Committee is so important to all of us and I think I don't
speak only for myself but for the vast majority of the Senate.
You, Mr. Chairman, have done an outstanding job in leading this
Committee, as has the membership of the Committee. And I think
we and the American people are thankful for that.
Chairman Graham. Thank you very much.
Senator Schumer. Now, to address the legislation. I'll be
brief, and I would ask unanimous consent that my entire
statement be placed in the record.
Chairman Graham. Without objection, it is so ordered.
Senator Schumer. Mr. Chairman, as we undergo a review of
our intelligence failures leading up to September 11th, we
should not, must not, and will not forget we're at war and that
we have enemies who are intent on doing us harm. We have to
remain ever vigilant in our efforts to protect America from
future attacks.
That means acting quickly, not just to ensure that the
military has the means to fight the war on terrorism, but also
to plug the holes in homeland security.
We've learned from the disclosures regarding Zacarias
Moussaoui, the so-called 20th hijacker, that even though the
FBI had abundant reason to be suspicious of him before 9/11, it
didn't act. It didn't seek a warrant to dig up the evidence
that may--may--have been the thread which, if pulled, would
have unraveled the terrorists' plans. And one reason the FBI
didn't seek the warrant is that the bar for getting those
warrants is simply set too high.
That's why Senator Kyl and I introduced the legislation to
amend the FISA Act. And I want to thank Senator Kyl for his
leadership on this and so many other issues. In fact, a couple
of the changes to FISA that you mentioned that were done in the
Patriot Act were Kyl-Schumer endeavors. We've worked together
on many law enforcement issues with at least some measure of
success, and I thank him for his partnership on this one and on
so many others.
Now, Senator Kyl's and my goal, quite simply, is to make it
easier for law enforcement to get warrants against non-U.S.
citizens who are preparing to commit acts of terrorism. Right
now the government is required to show three things before it
can get a warrant for national security surveillance.
First, it must show that the target of the surveillance is
engaging in, or preparing to engage in, international
terrorism. We keep that requirement in place. Second, it must
show that a significant purpose of the surveillance is foreign
intelligence-gathering. As you mentioned that was changed a bit
by the Patriot Act, as it should have been. We don't change it
any further. That one is working just fine.
But, third, it must show that the target is an agent of a
foreign power like Iraq, or a foreign terrorist group like
Hamas or al-Qa'ida. And that's the hurdle we're removing.
If that last requirement hadn't been in place, there would
have been no question within the FBI about whether it could
have gotten a warrant to do electronic surveillance on
Moussaoui. It could have searched his computer files and
perhaps--perhaps is underlined--come up with information needed
to foil the hijackers' plans. And that may--underline may--have
been enough to force someone to put two and two together to add
the Moussaoui information with the Phoenix memo and realize
that something truly horrible was afoot.
I believe the Vice President, the FBI Director, and the
Secretary of Defense when they say other attacks are planned.
Right now there may well be terrorists plotting on American
soil. We may have all kinds of reasons to believe that specific
individuals in our communities are preparing to commit acts of
terrorism, but we can't do the surveillance we need to do
because we can't tie them to a foreign power.
The simple fact is that in a world where the gravest
threats to our freedom can come from a single person, or small
group of people, our ability to tie a terrorism suspect to a
foreign power cannot and should not be allowed to determine
whether we can do surveillance. There may be known wolves out
there acting without the support of Iraq or Hamas. There may be
terrorists who we just can't link to a foreign power, and that
shouldn't matter. If they are meeting the first two standards,
if it's possible that they're about to engage in acts of
terrorism, it shouldn't matter whether we can link them or not.
In some cases they might not be linked, in some cases it
may be a new group that we don't know of, in some cases they
may be linked to the group but we can't prove it. But we don't
believe that that should really matter. If you're not an
American citizen and you don't have a green card, and we have
reason to believe that you're plotting terrorism, the FBI
should be able to do surveillance.
It's important to note that if our bill becomes law it will
immeasurably aid law enforcement without exposing American
citizens and permanent legal resident aliens to the slightest
additional surveillance. This law will only affect non-citizens
and non-green card holders. And the language we're proposing is
the same language the Administration sent up here during the
debate over the Intelligence Authorization Bill. Attorney
General Ashcroft has given his stamp of approval. And I look
forward to working with Senator Kyl and perhaps Senator DeWine,
if we end up collaborating a little further--Senator Kyl
mentioned to me in the subway yesterday that we might be--to
help this bill become law.
I just want to reiterate one point, Mr. Chairman. We're
still at war, and we're still at risk. We live in funny times
where we are at risk but our lifestyle doesn't change a jot.
And sometimes we forget the risk that we all face. So we must
not only take a critical look at our intelligence failures, but
we have to take a constructive approach immediately towards
making this a safer America.
And some of the proposals for expanding powers that I've
heard floated give me some reason to pause. They may go too
far. But in my judgment at least, Mr. Chairman, this one's a
no-brainer. This is a fair, reasonable and smart fix to a
serious problem. And I want to thank you, Vice Chairman Shelby,
as well as my partner in this endeavor, Senator Kyl, for all
their help.
Chairman Graham. Thank you very much, Senator. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
I am aware that Senator Schumer may have to leave here
fairly quickly, but before he does I want to say thank you to
him. We have worked together on a variety of issues that have
helped us to deal with criminal elements and most recently with
terrorists. And what we find as we gain experience with the
terrorists and work through our legal process is that, here and
there, there are some deficiencies. Things change.
Circumstances change.
And last century's FISA--it seems odd now to refer to a law
in that context--FISA and other laws were developed in the
circumstances in which there were known identifiable enemies.
And it was fairly easy, therefore, to conceive of a statute in
which you would tie the suspect to a foreign power, a specific
country, or a terrorist organization by name.
What we've learned, especially in this Committee, is that
these terrorists, as Senator Schumer said, are very shadowy
figures. They don't have a membership card in a terrorist
organization and go to their meeting every Friday night. They
are very shadowy folks who move in and out of the United
States, who may or may not have affiliation with different
terrorist groups who change those affiliations, or who may
simply be working with people who would be considered members
of those terrorist organizations. And as Senator Schumer said,
there are even new organizations beginning.
And so what seemed like a reasonable requirement in the
past that you would tie one of these individuals to a specific
foreign government--well, very few terrorists now work for a
specific foreign government--or to an international terrorist
group when they are so shadowy now and they are so
compartmentalized in the way that they work and deal even with
members of their own group, that we find that those kinds of
requirements are now outmoded, don't serve the interests of
justice, don't permit us to protect American people. And we can
change the requirement very slightly and remain very easily
within constitutional limits.
And we have assurances from the Department of Justice,
which we'll get later, to this effect, and which would--as both
the FBI Director and, I would also note, Agent Colleen Rowley
from Minnesota, testified before the Judiciary Committee--would
be a very helpful way to amend the statute so that we could
deal with this problem of the individual who we have reason to
believe, have probable cause to believe, is engaged in some
kind of international terrorist activity or planning, but who
we can't at this moment connect up to a specific country or
terrorist group.
Maybe it's a new group, maybe they don't really have a
connection, and they are acting or that individual is acting
literally by himself or herself. Or maybe what we'll find is
that there is a connection but we won't know it until we
actually secure the warrant to do the search that leads us to
that kind of evidence.
So this is what we're trying to achieve here. It's very
straightforward, very narrow. And I would hope that we could
act on it quickly.
We could work with our friends in the Judiciary Committee,
of which both Senator Schumer and I are members, and we could
get it in--and Senator DeWine, I might add--and that we can
move quickly to get the support of our colleagues and put this
important tool into the hands of law enforcement and
intelligence agencies here in this country so that we can add
one more element to the protection of the American people.
Thank you, Mr. Chairman.
Chairman Graham. Thank you, Senator.
Senator DeWine.
Senator Schumer. Mr. Chairman, might I excuse myself, if
there are no questions?
Chairman Graham. Thank you very much, Senator.
Senator Schumer. I will apologize to Senator DeWine. When
they moved the schedule back a little bit, it bumped into
something. Thank you.
Chairman Graham. Senator Schumer, thank you very much for
your and Senator Kyl's efforts that brought us this legislation
to consider this afternoon. And we will try to treat your young
child with nurturing care.
Senator Schumer. I've met your triplet young grandchildren.
If you treat this legislation one-hundredth as well, we'll do
just fine.
Chairman Graham. Thank you. But you only have one piece of
legislation here.
Senator DeWine.
Senator DeWine. Mr. Chairman, thank you very much. Let me
first congratulate Senator Kyl, Senator Schumer for the
legislation that they have introduced. As they indicated, this
is really legislation that brings the law up to date to deal
with the realities of the danger facing the United States, and
the current law really does not do that. And so I congratulate
them and I look forward to working with them on this bill.
Let me take a moment, Mr. Chairman, if I could, to discuss
a separate bill that I have introduced which is S. 2659. This
is a bill to modify the standard of proof required for a FISA
order for non-U.S. persons. As we all know, the FISA statute
has come under increasing scrutiny in the months since
September 11 as citizens and the general public have struggled
to make sense out of the terrorist attacks. My FISA reform bill
would offer us a chance to improve our intelligence gathering
and a chance to improve our ability to prevent future attacks.
It would make it more likely that we could use FISA
surveillance more often to gather the data that we need to
fight terrorism.
And it would address one of the concerns voiced about the
FISA problem, and that is that its use has sometimes been
encumbered by an overly cautious culture that had grown over
the years and that officials responsible for implementing it
have been, in certain circumstances, too slow to request the
FISA order from the court.
We have talked about the Moussaoui case. Quite frankly, no
one knows at this point whether or not the change in the law
would have, as I have indicated, would have had any impact on
Moussaoui, if that case ultimately would have been moved up the
chain as it should have been, and all of the facts are not
publicly known. But it is that type of case at least that it
would be helpful, I believe, if we saw this change in the law.
In order to enhance the usefulness of FISA and attempt to
protect ourselves as much as possible from future attacks, we
must take steps to limit the possibility of such future FISA
disputes. S. 2659 would do just that. Specifically, this bill
would change the burden of proof which must be met by the
government from probable cause to reasonable suspicion, but
only in very specific and limited circumstances. That change
would only apply for terrorism investigations of non-U.S.
persons. This change would be effective for both electronic
surveillance and physical searches.
From an operational point of view, this would aid in
obtaining FISA orders earlier in the investigation than might
be possible otherwise. And, in certain circumstances, it may
allow the government to obtain orders they might not get at
all. By lowering the standard we hope to avoid situations such
as we found in Moussaoui and encourage the OIPR to request FISA
orders earlier in the process. The Supreme Court has held that
the underlying cause requirement to authorize searches is
dictated by the balance of governmental and privacy interests
and the governmental interest in protecting national security
and preventing terrorist attacks. That is obviously compelling.
It's obvious that this is a compelling need to protect United
States citizens from this type of attack.
Further, there is case law indicating that the privacy
expectation and interest of a non-U.S. person is, in fact, less
than of a U.S. person. Lowering the standard will, of course,
not remove all disputes. It won't make every case an easy case.
No matter what the standard, officials will have good faith
disputes over when it is reached. There will always be a case
that lands right on the line. However, this legislation
decision, like most, requires a careful balancing of the gains
from the new standard with the possible problems.
While the new standard will no doubt result in speedier and
increased surveillance of potential dangerous non-U.S. persons,
we must be cautious not to endorse an overly permissive use of
the surveillance powers of FISA. That's why we have been very
careful in drafting this bill. The reasonable suspicion
standard is, Mr. Chairman, a widely recognized legal threshold
with a great deal of history and case law behind it and one
that makes sense under the current circumstances. I believe
that we have an opportunity to make a change in the law that
will improve our odds of preventing future terrorist attacks. I
hope the members of this Committee will join me in supporting
it.
Thank you very much.
Chairman Graham. Thank you, Senator.
We can now turn to our first panel with representatives of
the Department of Justice and the CIA--Mr. Jim Baker, Chief of
the Office of Intelligence Policy and Review of the Department
of Justice; Mr. Marion Bowman, Deputy General Counsel of the
FBI. Representing the Director of CIA is Mr. Fred Manget,
Deputy General Counsel.
Gentlemen, do you have opening statements? Mr. Bowman.
[The prepared statement of Mr. Bowman follows:]
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STATEMENT OF MARION E. ``SPIKE'' BOWMAN, DEPUTY GENERAL
COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. Bowman. I'm from the FBI, sir. I have a prepared
statement which has been furnished to your staff. So in the
interest of economy of time, I'd like to pick up on some brief
comments that explain some of the operational problems that the
FBI sees in terrorism investigations these days.
Chairman Graham. Mr. Bowman, could you pull the
microphone--yes, thank you.
Mr. Bowman. I'd like to thank Senator Kyl because he's said
a number of the things that I was planning to say. So I'll pick
up briefly from some of the things where Senator Kyl left off.
Senator Kyl is quite correct in saying that things have changed
over the last couple of decades and the phenomenon that we see
today in terrorism is not the same phenomenon that we saw 20-
some years ago. It's absolutely correct to say that we focused
FISA and our investigations around individuals who belong to
groups, identifiable groups. Usually they were larger ones that
we could name.
Through the years we started seeing smaller and smaller
groups of individuals. But about three or four years ago we
began to increasingly notice that we were focused on
individuals who were doing suspicious things, who looked to us
as if they had the makings of terrorists but who did not seem
to have any particular allegiance to a group. And we sort of
looked at this and traced it back and with your permission,
Senator, I'd like to explain where we think some of this is
coming from.
We believe that a lot of the problem that we see today
stems from the Afghan-Soviet war when anywhere from 10,000 to
25,000 Muslims from 43 different countries went to Afghanistan
to fight against a vastly superior--technologically superior--
force there. And the training that they received there was
primarily guerilla training, terrorist type tactics. They also
received a lot of religious instruction and terrorist training
camps that we're familiar with today were begun at that time.
The war, of course, did end and when those thousands of
Muslims returned to their home countries they went back with a
lot of training they hadn't had before and with a lot of
understanding of a Muslim brotherhood--a community that went
beyond the idea of nationalism--that they took back with them.
They also took back with them some of the successes that they
had in Afghanistan in fighting a vastly superior force and
those successes came about through guerilla and terrorist
tactics. It wasn't too hard to convince or to explain how
successful those tactics were to a number of other dissatisfied
persons in the countries they went back to, people who began to
believe that that kind of tactic would be a better way for them
to develop a better life, to avoid the Western sentiments and
so forth that they thought were invading their countries.
If I fast forward now to the year 2002 or actually back
around 1999 or 2000, we began to see this spreading out at the
edges and we began to see it spreading into the United States
as well, to the point that what we had was very much a--I
hesitate to say a ``movement''--probably a better description
is a ``network'' of individuals who had learned to work
together, who had learned terrorist tactics together, who had
traveled together, some were educated together, and they began
to spread their ideas throughout an extremist community.
That extremist community eventually made its way into the
United States and whereas not too many years ago virtually all
of the terrorists that we looked at were affiliated with known
organizations or smaller organizations that we could identify,
that has begun to change, to the point that today we see
essentially three categories of individual that we look at as a
terrorist suspect.
The first and still probably the largest is the individual
who is associated with some kind of group that we can identify,
that we can see. The second is the individual who seems to have
connections to a number of groups that we understand, but who
owes allegiance to none of them that we can see. And the third
is the individual who does not seem to have any allegiance to
anyone or at least none that we can spot.
As to the first category of individual, FISA works very
well. As to the second category, we have a great deal of
trouble trying to understand if the person actually is
affiliated with one of the groups that he seems to have contact
with, or whether he is just one of the persons who is part of a
network of dissatisfied extremists. And as to the third
individual, we have no possibility at the moment under the
current FISA statute of effectively targeting him because we
don't have any kind of affiliation for a foreign power.
That's the situation that the FBI sees today in
investigating terrorists. I will leave the rest of my comments
for you in the record, you have that now, and I would be happy
to take any questions that anybody has. But I think first you
probably want to hear from the Department of Justice.
Chairman Graham. Mr. Baker.
[The prepared statement of Mr. Baker follows:]
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STATEMENT OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY,
DEPARTMENT OF JUSTICE
Mr. Baker. Thank you, Senator. I also have submitted a
written statement for the record and I would just like to
briefly summarize a few of the points that are set forth in the
written statement that I have submitted.
I am the counsel for intelligence policy at the Department
of Justice and head of the Office of Intelligence Policy and
Review, which is the office that prepares and presents to the
Foreign Intelligence Surveillance Court, the FISA Court, all
the applications under the FISA Act for electronic surveillance
and physical search of foreign powers and their agents. We are
operating under a statute and in a system created and modified
by Congress and we execute the laws as they have been set forth
by Congress.
Let me just make a comment generally with respect to the
changes that Congress made in the Patriot Act and the
Intelligence Authorization Act for 2002. The administration has
made full and effective use, I believe, of those changes and
the changes set forth in those statutes have affected every
application that has gone to the FISA Court since the Act
became effective.
In my view, the changes have allowed us to move more
quickly and more effectively and to also be more focused in our
approach in dealing with the kinds of threats that Mr. Bowman
made reference to. So we at the Department are grateful for the
changes that Congress made in the statute, because I believe
they've been important and have been employed effectively.
I'd now like to turn briefly to the two proposals that are
before the Committee, S. 2586 and S. 2659. Those have been
summarized already by others and I won't seek to repeat that,
Senator. My statement makes more extensive comments on that,
but let me just make a few comments, at least starting with
respect to S. 2586, the Kyl-Schumer bill that amends the
definition of a foreign power to include foreign individuals,
non-U.S. persons who are engaged in international terrorism or
activities in preparation therefor.
In our view, this a change that is warranted by the facts
that Mr. Bowman set forth and it is a relatively modest change
that affects who would be subject to electronic surveillance
under FISA, the Patroit Act and the Intelligence Authorization
Act, affect how we go about obtaining FISA orders and the
procedures for that. And this is really the first change in who
is covered under FISA.
As Mr. Bowman discussed and I think is fairly self-evident
in these times, a single terrorist can present a huge threat to
the United States' national security and can do things such as
attack an airplane with a bomb or put anthrax in the mail, both
of which represent great threats to the national security of
the United States.
The Department has reviewed the proposed bill and has
concluded that it is constitutional, that the extension of FISA
to include individual non-U.S. person targets is within the
Constitution and is a relatively modest extension of the
already existing provisions of the Act which could cover and
were initially intended to cover groups as small as two or
three people, so this is an extension from two or three people
to one person and for the reasons Mr. Bowman set forth we think
it is a legitimate and important and useful reform of FISA.
With respect to the provisions in S. 2659, this is the
provision that would change the standard with respect to non-
U.S. persons from probable cause to reasonable suspicion and
the Department has been studying Senator DeWine's proposal. But
because the proposed change raises both significant legal and
practical issues, the Administration is still in the process of
evaluating the legislation.
In the meantime, I'd like to thank the Committee for the
opportunity to be here today and to do whatever I can to
support your efforts in the nation's war against terrorism. And
I would be pleased to answer any questions to the extent I can
in an open session or, if necessary, in a closed session. Thank
you, Senator.
Chairman Graham. Thank you very much, Mr. Baker.
Mr. Manget.
[The prepared statement of Mr. Manget follows:]
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[GRAPHIC] [TIFF OMITTED] T0301A.018
STATEMENT OF FREDERIC F. MANGET, DEPUTY GENERAL COUNSEL,
CENTRAL INTELLIGENCE AGENCY
Mr. Manget. Thank you, Mr. Chairman.
For over 20 years, the Foreign Intelligence Surveillance
Act has defined how the intelligence community conducts
electronic surveillance and, for nearly a decade, physical
searches that target spies, terrorists and other individuals of
foreign intelligence interest operating within the United
States. Since FISA enactment, however, these targets and their
means of communication have changed. Intelligence community
collection efforts are increasingly challenged by the shifting
nature of intelligence targets. Sensible amendments to FISA
will forward intelligence community efforts to collect crucial
foreign intelligence against these nimble targets.
Mr. Chairman, I would like to thank the Committee for a
swift legislative action in the wake of the terrorist attacks
of September 11th. Legislation introduced by the chairman,
considered by this Committee and ultimately included in the USA
Patriot Act, removes artificial statutory barriers to law
enforcement information-sharing within the intelligence
community and clarifies the authorities of the DCI with respect
to FISA. The Patriot Act enhanced the ability of the
intelligence community to coordinate with law enforcement and,
consistent with the protection of civil liberties of U.S.
persons, improved the ability to collect foreign intelligence
under FISA.
I appreciate the opportunity to represent the DCI as this
Committee considers two pending bills that also propose
sensible amendments to FISA. Both these bills would increase
the ability of the U.S. government to collect information
concerning foreign nationals of foreign intelligence interests
within the United States. Through access to the intelligence
collected under these proposed authorities, the intelligence
community will be better able to inform the decisions of
policymakers and warfighters. The DCI generally supports
statutory changes that, consistent with the Constitution, would
enhance our ability to use FISA as a collection tool and to
prevent potential terrorist attacks.
We have reviewed and support the changes proposed in
S.2586. We understand the Administration is still studying
S.2659 and is not prepared to take a final position on that
bill. In addition, we would defer to our colleagues in the
Department of Justice about the final constitutional analysis
but, in general, we agree with the current review. Terrorists
who would harm this nation should not be able to conduct their
activities under the protective cloak of unnecessarily
restrictive FISA requirements that have not kept pace with the
change in the nature of our enemies.
Balancing the civil liberties of U.S. persons against the
President's constitutional authority to protect national
security was the overriding concern of Congress when FISA was
passed. These amendments would refine this delicate balance to
better account for current operational realities without
damaging important privacy equities of Americans. It's my
understanding that the Department of Justice believes the
amendment proposed by S.2586 conforms to constitutional
principles and we certainly agree with that.
Thank you again for the opportunity to testify regarding
these proposals and we look forward to working with the
Administration and the Committee and the Congress to discuss
these and other needed improvements to intelligence
capabilities, carefully balancing the interests of national
security with the privacy rights guaranteed by the
Constitution.
Thank you, Mr. Chairman. I'll be glad to discuss any
further questions or information.
Chairman Graham. Thank you very much. I have a few
questions. We will follow the five-minute question round using
the first to question being the first to arrive and so that
will be Senator Kyl, Senator DeWine and Senator Feinstein, in
that order.
With the foreign power requirement eliminated from the FISA
legislation and with the two remaining requirements being
engaged in international terrorism or preparing to engage in
international terrorism, could a standard criminal wiretap be
used to collect information against these persons without the
use of FISA? I would ask that question of Mr. Baker and Mr.
Bowman.
Mr. Bowman. Well, what you are looking for, what you need
as a predicate for FISA and for a Title III are two different
things. In the Title III, you have to have a criminal act or a
preparation for a criminal act.
Chairman Graham. Is not international terrorism a criminal
act?
Mr. Bowman. Yes, sir. It would be a criminal act if it's
carried out. So if you have enough information to show that you
have an individual who is preparing to engage in a criminal
act, then a criminal wiretap would most likely be available to
you.
Chairman Graham. What are the implications of proceeding
against the same person on the same set of facts through FISA
as opposed to Article III?
Mr. Bowman. Well, that's a very interesting question,
Senator. The purpose for Title III is to get a prosecution. The
purpose for FISA is to gain information. And the implications
are historically, from a case law perspective, are that you
have to be careful that you are not using an intelligence
technique in order to gain criminal information for
prosecution. It's not necessarily the case, in my opinion--and
this is my opinion, sir--that you really have to separate them
because your purposes may be entirely different. You may have a
purpose of foreign intelligence and a purpose of criminal law
in looking at any particular individual or circumstance, and
they can both stand, I think, on their own merits.
Chairman Graham. Any other comments on that question?
Mr. Baker. Senator, I guess would say in my experience when
you're trying to prevent terrorist acts, that is really what
FISA was intended to do and it was written with that in mind.
The standards that are set forth in there and the practical
realities of how you operate a FISA are better suited, in my
view, to being able to understand the nature of a particular
threat and then to be able to try to prevent it. FISA, in my
experience, in practice is a highly flexible statute and has
proven effective in this area. And so to my mind it is a better
tool to use in these cases, it seems to me.
Chairman Graham. Mr. Manget, I'd like to ask a general
question which affects the context in which the two bills we're
considering today will be evaluated. In the USA Patriot Act,
section 901 strengthened the role of the DCI--not in his
capacity as Director of the Central Intelligence Agency but,
rather, in his community-wide responsibilities--giving him some
additional authority in terms of prioritizing the uses of FISA
and then disseminating the information which was gathered from
a FISA wiretap. Could you describe what progress has been made
by the DCI in terms of implementing these provisions?
Mr. Manget. Yes, Mr. Chairman. In fact, I believe we have a
classified staff briefing set up for tomorrow to go into
further detail. But I can certainly say that the vigor with
which the FISA tool is being used and coordinated most
effectively, and most especially with the FBI, is
unprecedented, higher than anyone can remember, driven
certainly by the events of September 11th, but also by the new
authorities.
The Director has, in effect, ordered the coordination
through the centers which are organized at the agency with a
DCI authority to bring in people from different parts of the
agency and different parts of the community to, in effect,
direct all resources and targeting decisions, and FISA is an
important part of that.
As you know, Mr. Chairman, we have extensive
crossassignments of FBI special agents with agency officers in
the two counterterrorist operations, and they communicate on a
daily basis. We have received, I can say--and probably tomorrow
you'll get the exact number--a great deal of disseminations
already from the FBI from FISA operations. And certainly the
consensus at the center, which is the action arm directed by
the DCI to carry this out for terrorism purposes, they're very
happy with the progress being made to coordinate FISA
direction, collection and dissemination.
Chairman Graham. Thank you.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. Just to follow up one
more aspect of the question the Chairman asked, is it true that
another reason or one of the main reasons to use FISA is the
fact that you can protect classified information?
Mr. Bowman. Yes sir.
Senator Kyl. Much more easily than in a Title III
situation?
Mr. Bowman. Yes, sir. And a terrorism investigation
historically leads to--it's fairly broad because normally it
leads from one person to another, one organization to another.
And so it's imperative that, first of all, what we are doing be
kept confidential.
Secondly, a lot of the information that we receive for this
does come from other classified sources, so the ability to
handle the classified aspects of information in FISA is
absolutely critical to effective investigations of terrorism.
Senator Kyl. And just to reiterate, it is still necessary--
instead of showing that there is a crime or the planning of a
crime that justifies going to the court to get a warrant here,
you're telling the court that you are looking at a situation of
international terrorism and that is what opens the door in
effect to ask the court for a FISA warrant . Is that correct?
Mr. Bowman. That's correct, sir.
Senator Kyl. And let me--and this is another question for
Mr. Bowman--there has been a criticism that changing this FISA
standard will exacerbate the FBI's analysis problem by flooding
an overloaded system with lower quality information. How do you
respond to that criticism?
Mr. Bowman. Well, sir, the fact of the matter is that we
have, as everybody knows, struggled with an analytical problem
because our investigations are more or less crisis driven. We
are looking at individuals in the United States and our efforts
have gone primarily into the investigative part of the Bureau
rather than the analytical part. Director Mueller is changing
that very rapidly. We are beefing up substantially our ability
to analyze what we are getting. We're getting substantial help
from the DCI on that, not only with personnel but with training
and they're lending their expertise on to how to analyze it. I
guess my response to that, sir, is that I can't change the past
but I think what we're doing now is the right way for the
future.
Senator Kyl. Obviously my question was misunderstood or
wasn't articulated accurately. What I was trying to say is, are
we changing the law by this bill to an extent that it's going
to all of a sudden open the floodgates to information flooding
into the FBI, to the point that you're not going to be able to
handle all of this new information----
Mr. Bowman. My apologies.
Senator Kyl [continuing]. Given the fact that there was
deficiency in the analytical capability in the past?
Mr. Bowman. My apologies for misunderstanding you, sir. No,
I actually think the answer is no. At this point in time, we're
talking about a discrete grouping of people. We're not looking
at thousands of people out there. Right now I can't even tell
you we're looking at hundreds that fit into the category. But
certainly, whatever it is, it's not going to substantially
overload the FBI.
Senator Kyl. Okay. And a final question and I think, Mr.
Baker, probably primarily directed to you, but all three of you
certainly can respond. It's actually a two-part question. First
of all, do you see any negative or any particular negative
impact on civil liberties--and I don't limit it to American
citizens, but also to non-Americans who are here in the United
States--sufficient to justify a criticism of the bill that the
benefits to intelligence interests are not sufficient to
justify a negative impact on civil liberties? It's really two
part: one, is there really a negative impact on civil
liberties; and, second, on balance, is the change that we're
making here warranted?
Mr. Baker. As Mr. Bowman suggested, if we expect that there
are cases out there that would fit within this new category,
then you would invariably have surveillances of additional
targets. So you would be, you know, connecting electronic
surveillance and potentially physical search of those targets
and that raises all the same kinds of civil liberties questions
that FISA does to begin with.
But nevertheless, you would have had--before you get to
that point, you would have had a finding by a neutral and
detached magistrate, and indeed in this case a sitting federal
judge, district court judge, that all of the requirements of
the statute are met and that there's probable cause to believe
that this individual is engaged in international terrorism
activities, or activities in preparation therefor. You also
have certifications by the Director of the FBI that this is
legitimate for an intelligence purpose and approval by the
Attorney General that the application meets the requirements of
the Act. So you would have more surveillances perhaps but they
would be done in accordance with all the other provisions of
FISA. And FISA, as you know, when it was enacted was designed
to carefully balance national security versus individual
liberties.
Senator Kyl. And--I'm sorry.
Mr. Baker. I'm sorry. I was going to say the effect is
probably not that much greater than already exists. And on
balance, given the kinds of threats that we face, it would seem
to me that the balance tilts in favor of going forward with the
provision.
Senator Kyl. And since Senator Feinstein was not here for
the statement that you made with respect to constitutionality
of the Schumer-Kyl legislation, would you reiterate what you
said for her benefit?
Mr. Baker. Just very briefly and right to the point, the
Department's looked at this and it's our determination that the
statute is fully constitutional and the Administration supports
it.
Senator Kyl. Thank you.
Chairman Graham. Thank you.
Senator DeWine.
Senator DeWine. Mr. Chairman, thank you very much.
Gentlemen, I realize that the Administration is not yet
prepared to take a position in regard to the constitutionality
of the bill that I have introduced. But in that analysis, don't
you start with the proposition that all presidents have in fact
asserted that foreign intelligence searches do not actually
require a warrant at all? Isn't that the underpinning basis of
the law? All presidents have maintained that.
Mr. Bowman. Yes, sir. That's accurate.
Senator DeWine. And so when you analyze this issue, it
seems to me, from the Administration's point of view, unless
the Administration is going to change its mind on that
position--and that's been a position held by Democrat and
Republican administrations--a proper analysis of this, as you
looked at the warrant requirement of the Fourth Amendment, that
you would at least start with that, would you not?
Mr. Bowman. We'd certainly start, I think, with the history
of national security surveillance under the authority of the
executive, yes, sir.
Senator DeWine. Let me ask maybe a general question and
then I can get into a specific question, because I think one of
the things that this Committee needs to know and Congress needs
to know is what practical effect the two bills would have on
the activity that you gentlemen are engaged in every day for
this country. Can you tell whether or not there have been cases
that were close cases in regard to the probable cause
threshold?
Mr. Bowman. Yes, sir, there have been.
Senator DeWine. I assume some come down on one side and
some come down on the other.
Mr. Bowman. Yes, sir. Under the current statute, some of
them are simply too hard. We can't get there. Some of them we
have been able with investigation to push it over. Again, it's
been one of those things where we take it to the Department of
Justice. An Article III judge looks at it and the ones we've
managed to push over, an Article III judge has determined
they're okay.
Senator DeWine. And you'd also agree that reasonable
suspicion is a standard that is a somewhat lower standard
although it's a standard that has been defined by law. Do you
agree with that?
Mr. Bowman. Yes, sir.
Senator DeWine. Let me give you a couple of hypotheticals,
if I could and we'll see if you want to tackle these in regard
to the Kyl-Schumer amendment and in regard to the DeWine
amendment.
Let me start with this one. A philosophy student from Japan
comes to the United States and begins purchasing quantities of
ammonium nitrate and fuel oil and he also belongs to an obscure
religious cult not known to have been involved in terrorist
activities before. I think it's pretty clear that Kyl's
amendment would change how you approach it. Any comment about
how our amendment would? Or maybe those are not enough facts,
Mr. Baker, I don't know.
Mr. Baker. I was going to say, Senator, I think I would be
generally reluctant in an open session to discuss
hypotheticals, just for concern of what it might reveal. So
that would be my sort of gut reaction to dealing with
hypotheticals in general, sir.
Senator DeWine. You and I have had these discussions in
closed sessions and we will continue that discussion.
Thank you, Mr. Chairman.
Senator Feinstein [presiding]. I think it's my turn next.
I'm inclined to support the Kyl-Schumer bill but as I
understand it, gentlemen, in some cases the government can show
probable cause that an individual is in fact engaged in
international terrorism or preparation for acts of terrorism.
But the government may be unable to show that the individual is
affiliated with a particular foreign power. And as I understand
the bill, the need to show this is reduced. Now, the question
is, this solution may well eliminate a fundamental
justification for the original FISA legislation that the United
States government as a sovereign state should be able to probe
the secrets of nations, groups and organizations who are
dangerous to its security.
Can we accomplish the same end without impacting the
philosophy behind FISA by building into the law the same
presumption that we adopt in everyday life for ourselves--that
individuals who are planning or engaged in acts of terrorism
are almost certainly working with or on behalf of a group, an
organization or a nation, no matter how small that group might
be. If you have two or three, it is a group. That presumption
is in accord with all the open source and classified
intelligence I'm familiar with. What would your views be of
such a compromise solution?
Mr. Baker. One thing that leaps to mind, Senator, is I
think I would be concerned that still the FBI might be faced
with cases where all the evidence seems to indicate in fact
that the person was not connected. We might have affirmative
evidence indicating that the person was not connected to any
group and was a true, quote/unquote, ``lone wolf.'' And even
with the presumption in those cases--and they would probably
few in number but they would still exist--we would still have
the same problem and still perhaps be stymied from being able
to go forward on those kinds of cases.
Senator Feinstein. Let me put it a little differently.
We're taking two steps here. One, we're eliminating the need to
establish the link with a foreign government and, second, we're
reducing the burden of proof for the warrant. I wonder, do you
all believe that both of those are necessary, or that just the
first might work?
Mr. Baker. Well, the Administration, as I mentioned
earlier, has determined that it supports the first bill, the
Kyl-Schumer amendment to decouple or delink the requirement
that the person be engaged in or be connected to an
international terrorist group. But we are still evaluating the
second provision in terms of lowering the standard with respect
to a non-U.S. person. So for right now we are only prepared to
support the first part.
Senator Feinstein. Mr. Chairman, the question that I had
was it might be well to do the first and hold up on the second
and see how the first functions, and that is the first being
the Kyl-Schumer bill, and wait before we lower the burden of
proof for the warrant. I don't know if you have a view on that.
But how soon will the Administration have a position on the
second?
Mr. Baker. I'm not sure, Senator. We're moving forward with
it. We believe it requires a thorough analysis of all the legal
and practical implications of the amendment. So I would hope it
would be as soon as possible, Senator.
Senator Feinstein. Thank you. Thank you, Mr. Chairman.
Chairman Graham [presiding]. Senator Kyl.
Senator Kyl. Mr. Chairman, since Senator Feinstein still
has a green light, would it be appropriate for me to ask the
witnesses a follow-up question to Senator Feinstein's question?
I might have misunderstood. But Senator Feinstein may have
implied in the question that even the Kyl-Schumer bill was
moving away from the underlying philosophy of FISA of a
connection to a foreign situation. You do have to have the
foreign situation. It is the Foreign Intelligence Surveillance
Act. Is it not true that we still retain--in fact, you have to
have by probable cause the elements of non-U.S. or foreign
persons, number one, and, two, international terrorism, even
with the Kyl-Schumer legislation? So that the underlying
philosophy of foreign intelligence is still maintained with our
amendment; is that not correct?
Mr. Baker. I think that's right, Senator. If you go back
and look at some of the considerations that went into the
enactment of FISA in the first place, trying to deal with
foreign threats from outside the United States, where the
ability of the government to investigate things that are
happening outside are more difficult. The types of information
that you want to obtain with a foreign intelligence
surveillance are different from, say, law enforcement. You are
going to be longer range in your scope to try and obtain
information to really understand what's going on here and
understand the nature of the threat, the focus on prevention,
as I mentioned earlier, and the need to protect the sources and
methods as you mentioned. All those still exist with respect to
your bill and I think those were the same kinds of
considerations that were in play when FISA was first enacted.
Chairman Graham. Thank you. I'd like to ask just a couple
of concluding questions. In reference to particularly Senator
DeWine's bill, it's been my understanding that a very high
percentage of the applications for FISA warrants are in fact
granted by the FISA court. Is that correct, and can one of you
provide me with what is the statistical level of approval of
FISA applications by the court?
Mr. Baker. Senator, the FISA court has approved all of the
applications that the government has submitted to it. There was
one exception for sort of a technical reason many years ago but
they've all been approved.
Chairman Graham. I don't want to nag about perfection, but
one of the concerns is that whenever you are hitting a
thousand, that may mean that you're only coming to bat when you
have a relatively inept pitcher. And I'm concerned as to
whether we're being aggressive enough under the current law in
pushing for FISA applications--and the Moussaoui case may be a
good example of that--where we might lose one occasionally but
we are pushing what we think are the legal limits of what is
available under FISA. A, is that a legitimate criticism? Are we
being risk-averse. in the requests that are being made? Is
Moussaoui an example of that risk averseness, and how would the
two pieces of legislation that are being considered today
affect that?
Mr. Baker. Senator, if I could comment on some part of that
and then defer to my colleagues, first of all, I see all the
FISA applications before they go to the Attorney General and I
would submit to you that we are being appropriately aggressive
in our use of FISA. I can't say any more in an open session
with respect to that but I submit that that is the case.
Secondly, I believe Judge Lamberth, the former presiding
judge of the FISA court, has spoken on a couple of occasions in
public with respect to the interaction between the court and
the Department and I believe, as he said, that they ask
questions, they probe, they try to get the nitty gritty of
what's going on with the case and ask us for additional
information. So there is an interchange between the court and
the Department during the process of which additional
information is provided to the court to satisfy the court that
we are, you know, justified in seeking the coverage that we
are.
With respect to the Moussaoui case, I'll defer on that
because the Moussaoui matter never made it across the street to
my office. So I'd leave my comments at that then, Senator.
Mr. Bowman. Senator, I think that one of the things that we
have to keep in mind is--well, two things really.
One is when FISA was passed the Congress told us that we
should be scrubbing these things very carefully before it ever
gets to the Article III judge. And I think that between the
intelligence agencies and the Office of Intelligence Policy and
Review we have done that. It is not always easy to get an
application up to a standard for the court, but we work at
them. And we don't just walk away from something because we
think we might have a problem. Frankly, it would not bother me
a bit to lose a case in front of the FISA court.
But we do work them extremely hard and sometimes, working
with Mr. Baker's office and mine, it takes us a fair amount of
time to put together a FISA that meets the standard. We are,
after all, dealing with persons who are trying to hide their
activities and hide their associations and so forth and
sometimes it just takes a little extra gumshoe work on the part
of special agents to dig up the information that's necessary.
But I don't think it would be fair to say we are risk averse.
Senator DeWine. Mr. Chairman.
Chairman Graham. Are there any other questions?
Senator DeWine.
Senator DeWine. Mr. Chairman, I would just like to follow
up on that, not with a question but maybe just an additional
comment. First of all let me just say, gentlemen, that I
appreciate the work that all of you do. This is very, very
difficult work. I can't think of anything more important in
government that is being done than the work that you are doing,
and all of us I know on this Committee appreciate it very much.
The subject of this hearing, though, really is whether or
not the law that we have been operating now for better than two
decades does in fact need to be changed. Congress on several
occasions has made some changes, generally at the request of
the Administration, at the request of the Justice Department.
For Congress to exercise its obligation to determine
whether or not the law should be changed presents in the case
of FISA a unique problem. The problem is that we have, as a
country and Congress, created a court that is by definition a
secret court. And it's a situation where what you do every day
is not done in public. What you do every day is in private. It
is unique in our jurisprudence, this ex parte relationship, a
relationship that you and the court are going back and forth,
you are supplying them information, they are supplying you with
direction.
I share Senator Graham's questioning at least about whether
or not if you bat 100 percent you are taking enough cases
there. I appreciate your answer that you were getting guidance
from the court. That does not though answer the question that
we have to answer to the American people, and that is whether
or not the current law, as it is being interpreted by the
court, is protecting the American people. Is it doing what it
should be doing? I have no doubt you are following the
direction of the court and I have no doubt the court is trying
to follow the direction of Congress as they think Congress laid
down the law over 20 years ago. But the question that I have is
whether or not the court has strayed from that, whether the
court is interpreting it differently than we presently today
think it should be interpreted, because we have the obligation
under our system of justice and our checks and balances to
write the law.
So that's the only reason that we are looking very closely
at this. It's the reason that I am looking at it and I'm going
to continue to do that and continue to try within the confines
that we have, where it is difficult to get answers,
understandably, in open session, but where it's even difficult
to get answers in closed session to find out exactly what is
going on inside that court.
And I think it is a matter of national security. And this
is one member of this Committee and one Member of Congress that
is going to continue to try to get answers because I don't
think we can ask our colleagues to vote on any proposed
changes, to determine whether any changes are needed at all,
unless we have really the opportunity to know what is going on,
better than we do today, inside that court.
Thank you, Mr. Chairman.
Chairman Graham. Are there any other questions of this
panel?
Yes, Senator Kyl.
Senator Kyl. Mr. Chairman, just not a question but if I
think I take one thing from this hearing it kind of started
with what Mr. Bowman testified. We have a statute that talks
about foreign power and foreign intelligence organizations. And
that just isn't the way the world operates any more. We now
have a sort of amorphous cause, a philosophical/religious cause
out there in the world today with a lot of people of different
affiliations supporting to one degree or another that cause and
acting in furtherance of that cause. Some of them are tied to
each other in different ways, some are not.
But because that's the new circumstance, at a minimum we
need to make the change that Senator Schumer and I have
suggested to recognize that reality. They no longer get their
membership card in an organization and pay their dues, so
that's an exaggeration, of course. But they're really not
acting, necessarily, on behalf of an organization to which
they've ever affiliated or a country but rather on behalf of an
idea. And they're probably dealing with some people in
connection with that.
But to try to tie all of that up into an organization in
some cases simply isn't--not only is it difficult and not
possible but it may not be actually the fact, it may not be the
case. And that, I think, more than anything, is what really
justifies the change that Senator Schumer and I are seeking to
make here. And since it clearly, I believe, does fall within
the constitutional parameters here, as I said, I hope we can
move our legislation quickly.
And I, by the way, am very intrigued by the question that
Senator DeWine asked here as well, and I think we need to
pursue that as well.
Chairman Graham. Thank you very much, gentlemen. We
appreciate your information, your experience and your insights
and sharing those with us this afternoon. Thank you.
Panel number two will be Mr. Jerry Berman and Professor
Clifford Fishman of Catholic University.
Mr. Berman is currently the Director for the Center for
Democracy and Technology. He formerly was chief legislative
counsel for the ACLU and helped draft the FISA legislation. He
currently serves as the chair of the Advisory Committee to the
Internet Caucus.
Professor Fishman is Professor of Law at the Catholic
University's Columbus School of Law, where he teaches criminal
law, criminal procedure and evidence. A graduate of Columbia
University Law School, his professional career includes service
as an assistant district attorney in New York, and as chief
investigating assistant district attorney in the Special
Narcotics Prosecutor's Office of the city of New York. He has
extensive trial experience and is a published author on issues
of evidence and wire-tapping.
Mr. Berman.
[The prepared statement of Mr. Berman follows:]
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STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Berman. Thank you. I appreciate again the opportunity
to testify before the Senate Select Committee on Intelligence.
After many, many hearings 20 years ago or so, I did not expect
to be back reviewing and revising and thinking about FISA. But
I think it's necessary given our new circumstances and our new
war on terrorism and the threats that confront us.
But it is important that we understand the context of how
FISA came about and that when we consider changes to it that
they be carefully thought about and deliberated and be done
with great care. I believe that the two statutes, both the
statute proposed by Senator DeWine and the statute proposed by
Senator Schumer and Mr. Kyl, we've worked together on many
issues, and however well meaning I believe that both statutes
raise significant constitutional questions and significant
questions about whether they will improve or hinder or make any
difference in our intelligence mission as we go forward.
We must understand that even if the courts upheld these
proposals that FISA was a major departure from our traditional
probable cause law. It was a special court. It's a secret
court.
The nine judges are not picked by the 9th Circuit in a
lottery; they're picked by the chief justice of the United
States Supreme Court. I considered him a conservative jurist,
and concerned about national security. So when that court, and
how it works, it's very important that we look at it. It's a
departure already from probable cause. It's probable cause that
you're an agent or a foreign power and you may be engaged in
criminal activities, so it's already a reasonable suspicion
standard.
I understand that it only covers aliens, and an attempt to
limit it to aliens. But there are many aliens in this country,
and most of us began as aliens in this country. And it's
important that that is a community, that you want to make sure
that you're both wanting to make sure to catch the terrorists
within it, but you're also asking for a great deal of
cooperation from it. And you want to make sure that they don't
feel they're under a great and unjustified intelligence net.
The changes are being proposed to deal with--I think we are
talking about all across America, and all across the Congress,
with the creation of a new Department of Homeland Security,
that we need better intelligence analysis. The FBI Director sat
up here and said we're three years behind in our information
technology, and that we need better analysis, better means and
smarter intelligence.
The question is whether the FISA standards, as enacted 25
years ago, are in our way. And my argument is I have--of
course, I'm not privileged to the investigation that you're
conducting, and I would very much hope that we wait to pass
legislation to get the results of that investigation. But there
are several factors which would argue that the current, the
FISA as existed prior to 9/11 may have been sufficient, but
that there are problems elsewhere.
Inspector Rowley came, said they had a guy trying to fly an
airplane, you know the facts, without trying to land it. But no
one put it together with the facts in Phoenix where 12 Arab
foreigners were trying to learn to fly, or with the President's
briefing in August that they were going to use airplanes for
sabotage or hijacking purposes, or a memo that was out there
from Mr. Kenneth Williams from the radical fundamentalist unit
that airplanes and hijackings might be used.
And there was also information from the French, how
reliable I do not know, but that Moussaoui was a part of a
terrorist organization. If that information existed and had
been brought together, why wasn't an application tried? And I
have talked to people who say that the problem wasn't the
standards, the problem was the failure to bring that
information together. And that there was a second problem which
is a committee factor running around within the Justice
Department, partly brought on by filing false affidavits in a
prior case, wanting to have a 1,000 batting average, not liking
terrorist cases. Nothing that you change in terms of standards
is going to do anything about that.
Let's come back quickly, and I know time is limited, to the
standard changes. Creating a lone wolf or individual foreign
power turns FISA upside down. It was to study foreign
governments, foreign threats, major threats, and it added
terrorist organizations because they were a new kind of threat.
But they're in there and if you're an agent or connected to
them, you're covered.
But to say that an individual is a foreign power turns
intelligence upside down, which is trying to connect the dots
between organizations and within organizations. I think that if
you have information on Moussaoui that doesn't meet a FISA
court warrant, you might have met a Title III warrant. But to
try and change FISA and lower it by changing that standard I
don't think may help you. You still have to prove, as Mr. Kyl
pointed out, that the person is engaged in international
terrorism activities. And I believe that in 99 percent of the
circumstances you are going to have to say that he's a member
of a group. So the court is, in looking at an order under the
Kyl-Schumer bill, I think, is back in the same place with the
Justice Department saying we ain't got the evidence, not
without the connections.
And the second point that I would make is that if we put
the two together and lowered the standard to reasonable
suspicion, as Mr. DeWine proposes, I believe that is clearly
unconstitutional. One: the Abel case says the Constitution
applies to aliens. The Keith case, which ruled that
intelligence--that wiretaps--can be applied to domestic cases
said lower standards can be used. But we are talking about a
new mixed statute, which is not only intelligence but criminal
and can be used for criminal prosecution purposes.
And if the court finds that you're using FISA to get
criminal prosecutions, there will be great questioning of the
basis on which you gather that information and the
Constitution, Fourth Amendment, says ``probable cause'' and I
agree, in final, with the Attorney General said it is the
Constitution is getting in our way and that's the point. And
that's the point--the Constitution here--and it is in your way.
Thank you very much.
Chairman Graham. Thank you very much, Mr. Berman.
Professor Fishman.
[The prepared statement of Mr. Fishman follows:]
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STATEMENT OF CLIFFORD S. FISHMAN, PROFESSOR OF LAW, THE
CATHOLIC UNIVERSITY OF AMERICA
Mr. Fishman. Thank you, Mr. Chairman.
I thank the committee for giving me the opportunity to
testify today about these two bills. S. 2586 is a useful
proposal which closes a gap in FISA by permitting surveillance
of an individual whom the government can show came to this
country to commit an act of terrorism even if it lacks evidence
connecting him to a foreign country, terrorist organization or
other group. Even a lone wolf might use his computer or
telephone, for example, to obtain from innocent people the
information or materials he needs to be able to kill, destroy
or disrupt. S. 2586 would make it easier for the government to
find out whether the suspect is in fact a terrorist and, if so,
to stop him and to identify his accomplices, if any.
As to its constitutionality, I can think of no theory why
surveillance that would be lawful where two or more people are
suspected should be unlawful when an evil man is acting alone.
And if the committee wishes later, I could spell out the
differences in a situation like that between FISA and Title III
and why FISA might be necessary even though Title III is
available.
S. 2659 is a bit more problematic. Currently FISA
surveillance is permissible only if the government has probable
cause--the same quality of information required for a search
warrant or to make an arrest--that the target is an agent of a
foreign power or international terrorist organization or group.
U.S. persons would continue to be protected by the probable
cause requirement but only reasonable suspicion, the same
quality of information needed to stop someone temporarily,
question and frisk him for weapons, would be needed to tap or
bug or search a non-U.S. person.
The bill appears to address the Zacarias Moussaoui case. As
we now know, FBI agents in the field believed they had what was
necessary for a FISA warrant. They were turned down by FBI
headquarters. If the legal standard had been reasonable
suspicion, perhaps the FBI would have gotten the order and the
outrage of September 11 might have been prevented. And that is
the first and main reason why, despite my qualms, I am in favor
of S. 2569 because it could significantly help the government
interdict terrorism. Still, I acknowledge the potential for
substantial intrusion into privacy that bill presents and that
some doubts exist about its constitutionality.
It is a well established principle that people who are in
the United States illegally or only temporarily enjoy somewhat
less legal protection than citizens and green card holders.
This supports the constitutionality of requiring less
information--that is, only reasonable suspicion--to authorize
surveillance of such people than is required to surveil U.S.
persons. But I would want to study the question further. I've
been studying and practicing and writing about the Fourth
Amendment for 30 years. My gut reaction is that S. 2659 would
be constitutional but I'd be much more comfortable if I could
study it more extensively before expressing a final opinion.
We must remember moreover that such electronic surveillance
and physical searches inevitably would intrude into the privacy
not only of the non-U.S. person who was the target but of many
U.S. persons as well--anyone the target talks to on his
telephone or shares space with or communicates with by
computer, depending upon the type of surveillance. Until now
the law has not permitted that degree of intrusion into anyone
without a search warrant or interception order based on
probable cause. Thus, this proposal boldly goes where no law
has gone before.
I support S. 2659 for a second reason. It reduces the
likelihood that courts will be tempted to define probable cause
down to help fight terrorism. Theoretically, probable cause
means the same thing--a ``fair probability'' that evidence of
wrongdoing will be uncovered--regardless of what the
authorities are looking for--a single marijuana cigarette, a
videocassette shoplifted from a local store or evidence of a
conspiracy to blow up buildings or poison an entire city.
But it is simple common sense that a judge will view the
government's showing more liberally in the latter situation. If
there is anyone here in the room who volunteers to be the judge
who turns down a warrant that could prevent the next September
11, please raise your hand. But if judges take a more liberal
approach to finding probable cause in terrorism investigations,
this could spill over into probable cause determinations in the
normal law enforcement context, which might have a more serious
impact on privacy than the creation of the narrow, tightly
tailored exception to probable cause requirements proposed in
S. 2659.
I support S. 2659 for a third reason. I am confident that
existing legal protections and practical pragmatic
considerations provide sufficient guarantees against excessive
wide-ranging invasions of privacy. The primary legal protection
is FISA's minimization provision. Investigators are required to
minimize the interception, retention or distribution of
evidence that does not reveal foreign intelligence information
or evidence of crime. And from a pragmatic and practical
perspective, the government lacks the resources or the desire
to engage in broad wholesale surveillance of non-U.S. persons.
In sum, despite my reservations, I believe S. 2659 is a
sound proposal and will ultimately be upheld as constitutional
because it is narrowly tailored to fill a compelling need and
because it passes the ultimate constitutional test: the
surveillance authorized by the proposal is reasonable under the
circumstances.
Thank you.
Chairman Graham. Thank you, Professor.
Mr. Berman, if it could be shown to the FISA's court
satisfaction under either the current standard or the standard
suggested by Senator DeWine that a non-U.S. person is engaging
in international terrorist activities or is preparing to do so,
what, in your opinion, does the additional requirement in the
current FISA law that the person must also be an agent of a
foreign tourist group add to the protection of the civil
liberties of the potential target?
Mr. Berman. What it adds to is, first of all, there is a
limitation on whether preparation can be merely First Amendment
activity. There is--the question I think is whether we are
going to change our intelligence investigative authority away
from surveillance of organizations and into surveillance of
individuals. And I think that is a major change and it is
actually the beginnings of creating a domestic intelligence
agency. We've never had one. It is the potential use of the
lower standards for criminal investigative purposes that I am
concerned about.
Chairman Graham. Professor Fishman, could you give us your
opinion on that question?
Mr. Fishman. I don't see any significant deterioration of
civil liberties by allowing security officials to go after a
lone wolf the way they are now allowed to go after a group of
two people.
Mr. Berman. Excuse me. Under our----
Chairman Graham. Excuse me.
Mr. Berman. I'm sorry.
Chairman Graham. Professor, did you have any further
comment?
Mr. Fishman. No.
Chairman Graham. Mr. Berman.
Mr. Berman. If there's a lone wolf and he's engaged in
terrorist activities in the United States, he should be a Title
III warrant and he should be investigated by a criminal
investigative authority so he can be brought to justice and
arrested and stopped from doing a terrorist act. That is what
should happen when it's an individual. That is well within the
authority of the FBI. It's well within their
counterintelligence mission and it's what I think the American
public wants to see happen. Why are we changing this into an
intelligence focus? What is wrong with the authority of our
criminal laws to bring someone to justice and get them off the
streets and prosecute them? If you have probable cause of a
crime, arrest them.
Chairman Graham. Yes. Mr. Fishman.
Mr. Fishman. Quite often, I think Title III would be the
way to go in this case. But there are many circumstances in
which Title III might not be appropriate. Title III
applications and orders are processed in the normal court
system. In matters concerning foreign intelligence and
antiterrorism, greater security is called for. The FISA court
provides that.
FISA and Title III have very different minimization
procedures. Under FISA, it is lawful to capture everything and
then weed out what is to be retained. Title III, by contrast,
generally requires minimizing at the time the communication
occurs. If we're talking about national security, the more
inclusive approach authorized by FISA is appropriate.
Finally, Title III requires eventual disclosure of the
suspect of the fact that an order was obtained and that
surveillance was conducted, whether or not any criminal charges
are filed against him. Normally, that is as it should be.
Under FISA, by contrast, unless the surveillance results in
criminal charges, the target does not have to be notified about
the surveillance; and even if charges are brought, the target
is entitled to much less information under FISA than under
Title III. S. 2586 gives national security officials the option
of avoiding any disclosure to the target where national
security interests outweigh the importance of bringing criminal
charges.
Now, wholesale wiretapping without ever disclosing what's
going on clearly does impinge or threaten civil liberties. But
I don't think there's any record of that being done regularly
under FISA now, nor do I think that is likely to occur if the
Kyl-Schumer bill is enacted.
Mr. Berman. May I respond for just one moment? I think it's
interesting that you propose this in extraordinary
circumstances, there may be cases where might what proceed
under Title III is of such importance to national security that
we ought to track it under FISA when an individual is
concerned. That might be an--that's not part of legislation
that's pending. It's interesting.
What is also interesting is you don't want to--I think you
said, you do not want a routine use of FISA where the normal
due process rules of disclosure to an attorney in a case if a
prosecution is brought, rules of evidence that apply,
minimization is--doesn't apply under FISA--those are
extraordinary circumstances and they ought to apply. And
particularly if you're beginning to use FISA as a criminal
investigative standard, which has happened under the Patriot
Act. It now has a dual purpose. And we civil libertarians and I
think many of you and the Congress are worried about are we
helping our intelligence agencies but also creating a back door
around our due process requirements in our criminal justice
system.
Chairman Graham. Thank you, Mr. Berman.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
This is a good discussion; I appreciate both of you being
here. I especially appreciate Professor Fishman's response to
your concern, Mr. Berman, about--I mean, it seemed to me you
were kind of attacking the fundamental premise of FISA
altogether, that you prefer we just not even have it, if you
had your druthers.
Mr. Berman. I honestly didn't say that. I helped to draft
it and I was very much in support of it.
Senator Kyl. So you still think FISA is a good idea then?
Mr. Berman. FISA?
Senator Kyl. Yes.
Mr. Berman. Absolutely.
Senator Kyl. Okay. I was beginning to wonder.
Mr. Berman. Go back, I got a pen.
Senator Kyl. I accept what you say. [Laughter.]
But out by saying that we need better intelligence analysis
and that the problem, as Agent Rowley pointed out was a problem
of follow-up and so on and the change in statute won't help
that, and that's all true. There are many problems, one of
which is a substantial change in circumstances about how
terrorists operate. So all of the other red herrings, I would
assert, are not really relevant to our inquiry here. We have to
solve those problems too. But this is another problem we have
to solve.
Mr. Berman. Let me--may I make----
Senator Kyl. Let me just finish because I have a question
for you here. You said that the lone wolf aspect of Kyl-Schumer
turns FISA upside down, and it changes from a look at an
organization to an individual and that's why it changes it
upside down. You know, if we said we have to look at the KKK or
organizations and we could never look at a Timothy McVeigh, for
example, then I think we'd have the analogy in the Title III
situation.
But taking it right back to FISA situation, you've got this
shoe bomber, Richard Reed. I don't know all the circumstances,
we can't discuss them in this situation. But here's a guy who
appeared--he was a non-U.S. person coming from a foreign
country, he was obviously intending to blow up an international
flight--in other words conducting terrorism, internationally--
but I'm not sure that we can connect him up to an organization,
a terrorist organization. He attended a mosque in London with a
bunch of other shady characters; doesn't necessarily mean that
he's connected to a specific organization. Should we be
precluded because of those facts from looking at him, where, if
we could prove that he was talking to one other guy, then we
could look at him? You see, it didn't seem to me that that
rationale is a valid one.
Mr. Berman. I'm sorry. It doesn't mean when you can't open
a FISA investigation or an intelligence investigation that you
don't open an investigation. Presumably, our criminal law
enforcement people are following around, collecting
information.
Senator Kyl. Let me be more precise about my question,
then. If we are warranted, where there are two or more.
Mr. Berman. Yes.
Senator Kyl. Under FISA, which you helped to write and
support.
Mr. Berman. Yes.
Senator Kyl. Then why wouldn't we be warranted as long as
there has to be probable cause of the international terrorism
connection with an individual, not using the FISA process to
further investigate him?
Mr. Berman. I just think again, it was meant to--the
purpose of giving broad search and secret search and very broad
authority was to allow intelligence agents to make very serious
connections between the members, the purposes of organizations,
so it's like organized crime. And it's a very different, far
more intrusive investigation and that's why it applies to
groups.
And I'm just going to insist on that line, that maybe two
or more people, and I might want it to be 10 or more people,
but it has a justification in that--because of the leeway that
we give to that--those investigations. And I don't think that
we're talking about not investigating. We're talking about----
Senator Kyl. Using the FISA process.
Mr. Berman. We're also talking about the lower you make
that process, I think the more you rely on wiretapping.
Senator Kyl. What's the rationale for distinguishing
between the individual who is doing something just as heinous
as the individual talking to a buddy of his about doing that
same act?
Mr. Berman. I'm making no distinction except in which
investigative bucket do you put that.
Senator Kyl. I don't think you can make--in other words, if
FISA is warranted in the first, I don't understand why FISA is
not warranted in the second. Professor Fishman, what's your
view on that?
Mr. Fishman. As I've said, I think that what the law says
is lawful for two or more people ought to be lawful in
investigating one person.
Mr. Berman. Well, then, we shouldn't have a criminal
investigative rule at all. I mean, we just ought to have just a
large intelligence investigative operation operating under less
than probable cause or evidentiary rules.
Senator Kyl. In matters other than in international
terrorism?
Mr. Berman. The discussion about----
Senator Kyl. You don't really believe that, do you? I mean,
you are being facetious.
Mr. Berman. Excuse me?
Senator Kyl. Are you being facetious? Or do you really
believe that?
Mr. Berman. Believe what?
Senator Kyl. That we shouldn't have a Title III situation
then.
Mr. Berman. No, I believe we should have a Title III
situation. But I do believe that the intelligence authority and
the intelligence investigations should belong to group
organizations. And you can't--I think when people hear that
you've defined an individual, that Moussaoui is now a foreign
government or a foreign power, that there will be a lot of head
scratching by many people who try to think about intelligence
investigations and what they're about.
Senator Kyl. Professor Fishman.
Mr. Fishman. In a safer world I would agree with Mr.
Berman. Unfortunately, that's not the world we live in now. We
have to take reasonable measures to protect ourselves and our
institutions. I think this is a reasonable measure.
Senator Kyl. Thank you.
Chairman Graham. Thank you, Senator.
Senator Kyl.
Senator DeWine. Thank you, Mr. Chairman.
Chairman Graham. I'm sorry, Senator DeWine, I apologize.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Chairman, I think we've had a very enlightening and
very good discussion with two scholars. I'm not sure that I can
add a lot. I think that their willingness to engage each other,
which always livens things up a little bit and makes our job a
lot easier, was very good.
Let me just say that I have been in touch, Mr. Chairman,
with Professor Phillip Heymann, a former Deputy Attorney
General, who would like to submit testimony for the record in
support of S. 2659. That testimony is forthcoming. I would now
ask the Chairman to keep the record for a few days so we can
accept that testimony.
Chairman Graham. Without objection, so ordered.
[The statement for the record of Mr. Heymann follows:]
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Senator DeWine. In addition, Mr. Chairman, I would like to
submit at this time a letter of support from the National
Association of Police Organizations for S. 2659.
Chairman Graham. Without objection, so ordered.
[The statement for the record of the National Association
of Police Organizations follows:]
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Senator DeWine. Thank you very much, Mr. Chairman.
Chairman Graham. Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman.
I agree this has been very interesting. Let me just kind of
informally talk with you for a couple of minutes because it
seems to me that when FISA was written the world was very
different. The Berlin Wall wasn't down. We were talking about
Soviet spies. We were talking about KGB. And the entire
intelligence apparatus was extraordinarily different because
there there was a direct connection to a government. Senator
Kyl, I think, spoke correctly. The world is very different now.
Let me ask you this question, Mr. Berman. Right now--and
this is hypothetical--right now in flight schools we learn that
there are people who fit the definition of foreign, that one or
two of them have visited al-Qa'ida facilities, another might
have been a product of a radical madrassa in Peshawar. Should
the United States government be able to get a FISA warrant?
Mr. Berman. I have a proposal, which is----
Senator Feinstein. No, no, answer my question.
Mr. Berman. It's too--give me your example again.
Senator Feinstein. I just gave you the example.
Mr. Berman. It's two are at a flight school--I'm sorry, I--
--
Senator Feinstein. All right, you have a couple of
foreigners at a flight school today, and we learn or the
government learns about them that one or two of them have
visited or been part of an al-Qa'ida training camp.
Mr. Berman. Yes.
Senator Feinstein. Should the government be able to get a
FISA warrant?
Mr. Berman. They should be able to get a FISA warrant.
Senator Feinstein. Supposing you have an individual that's
been schooled in a radical fundamentalist madrassa who is in
this country trying to buy a precursor chemical, should you be
able to get a FISA warrant?
Mr. Berman. You may not have enough probable cause because
you can't connect him to a group. You may--but you can
investigate them. But I don't know whether you'd have enough
for probable cause.
Senator Feinstein. See, that's where I think the world has
changed, because these are the very threats. You can't prevent
it from happening if you can't get enough ahead of it. And
that's what the FISA warrant allows you to do that the civil
side does not.
Mr. Berman. But if we bring the standard down to reasonable
suspicion so that we can take care of cases like this----
Senator Feinstein. I'm not talking about that. I'm just
talking about the one bill. I'm just talking about the Kyl-
Schumer bill, which takes out foreign power, because none of
these people are connected to a foreign power.
Mr. Berman. But if you look at the definition, this is one
of the things that I've been trying to talk over with your
experts on your Committee. The definition of a foreign power in
this section is someone engaged in international terrorism. And
since it falls under the probable cause that someone is a
foreign power do you have to show probable cause that they are
engaged in terrorist activity.
Senator Feinstein. Well, of course, isn't that probable
cause right then and there? I mean, I think, it's interesting
to me that with Moussaoui the Department did not pursue a FISA
warrant.
Mr. Berman. I'm just saying that----
Senator Feinstein. So they didn't take this step----
Mr. Berman [continuing]. If it's probable cause----
Senator Feinstein [continuing]. Because they didn't believe
they could satisfy it. It's also very interesting to me that
their batting average is so high. I'm amazed at that, which
indicates to me they haven't brought all that many warrants,
frankly. And I mean if you believe there's a problem out there,
and I happen to believe there is a problem out there, I happen
to believe there are people that want to----
Mr. Berman. Let me just----
Senator Feinstein [continuing]. Wreak terrible damage on
American citizens.
Mr. Berman. I'm now going to play on the lone wolf side for
a second. But what I want to understand is why that changes the
analysis that the Justice Department applied to it, which is
they needed probable cause that Moussaoui was engaged in
international terrorist activities. They said, we didn't have--
there's two different stories. And you have the facts. We had
probable cause to believe that he was engaged in terrorist
activity, but we couldn't tie him to a specific foreign power
on our list. There's another side which is that, hey, we just
didn't have probable cause, but he was engaged in terrorist
activity. All we knew is that he was at a flying school, and we
didn't have more.
Why would, if they had to have the evidence of a crime and
not just that they could name the group, what evidence--the
Schumer-Kyl bill is still requiring evidence that the Justice
Department may not have granted--may have said, we don't have
the evidence to grant this warrant, even with their change. So
would the change change the situation? That's my question to
you.
Senator Feinstein. Appreciate that. Mr. Fishman, do you
have a comment?
Mr. Fishman. I think in a limited number of cases the Kyl-
Schumer bill would, in fact, give the government the
opportunity to do what it otherwise could not. Take for example
the situation of a foreigner who looks like he's trying to put
together the same materials as Terry McNichols used to blow up
the building in Oklahoma City. He's a foreigner. He's from,
let's say, the Mideast. But no evidence connects him to any
organization. In that situation one currently now could not use
FISA to obtain a surveillance order against him.
And there may be reasons why Title III simply would not be
the way to go for the reasons I discussed earlier. So I think
that's the sort of rare situation that Kyl-Schumer would, in
fact, give the government the opportunity to do what needs to
be done that under current law it could not.
Senator Feinstein. Thank you. Thank you, Mr. Chairman.
Mr. Berman. May I ask one more question for your Committee
to ask the powers that be?
Senator Feinstein. Sure.
Mr. Berman. The standard is agent of a foreign, which is
where changing the law in this area--so an agent is now an
individual or a foreign power is now an individual is engaged
in international terrorism or activities in preparation
thereof. In the U.S. section, it says, provided solely that
none of that should involve simply First Amendment activities.
The question is, does this pick up a visitor who makes a
speech, you know, I hate the United States, in London or in
Palestine. They come to the United States. Are they now engaged
in international terrorism or activities in preparation thereof
and therefore every American that may talk to them on the
telephone is now under surveillance or potentially on a watch
list?
Senator Feinstein. I don't know if in preparation--I don't
think so but I don't know that ``in preparation of'' means
raising money for. If it does, my answer would be, I think,
yes. If you're doing that to raise money to commit a terrorist
act, I think that's a bona fide issue.
Mr. Berman. One thing that was, when FISA was enacted,
however it was done, there was--it's a very complicated statute
and there was a complicated legislative history to support it.
One of the things I found most troubling, not about the changes
that have been made in Patriot and so on, although I've got
some problems, but the unwillingness where there are hard
questions of this Justice Department to be willing to state in
legislative history what they mean about certain things so that
courts and reviewers can look at it. This opposition to
legislative history leaves you with a plain text definition,
which is very unsatisfying in very complicated policy areas
like this.
I would urge a legislative history accompanying any
legislation that you mark.
Senator Feinstein. Thank you. Thank you, Mr. Chairman.
Chairman Graham. I'd like to ask another question relative
to Senator DeWine's bill. What is the practical difference in
what the requesting agency, the FBI for instance, would have to
show in order to be able to meet the current standard of
probable cause or the standard that's being suggested, which is
reasonable suspicion?
Mr. Fishman. We're talking about shades of gray, Senator.
It's difficult to define other than if you've studied the cases
enough, you develop an instinct for what satisfies which
standard and which does not. That's not a satisfactory answer,
I realize. Probable cause is a darker shade of gray than
reasonable suspicion. That's the best answer I can give. It's
not a good answer at all.
Chairman Graham. Let's say if this were a 100-yard track
and probable cause to get to the end would require you to get
to 80, where would reasonable suspicion--how close is
reasonable suspicion? Is it a 60 or is it a 78?
Mr. Fishman. I'd say it's probably closer to 30 or 35.
Chairman Graham. It's that far below probable cause?
Mr. Fishman. We're talking abstractions but all that
reasonable suspicion requires is the officer has to be able to
say, this is what I've seen, this is what I've learned.
Applying my experience and expertise, this is why I suspect
this person might be about to do something wrong. Probable
cause requires a fair probability that something illegal is
being done or incriminating evidence will be found. ``Fair
probability'' sounds like it means ``more probable than not.''
But it does not mean that. It means less than preponderance of
the evidence. That's the difficulty.
It's fascinating. Probable cause, that phrase, is in the
Constitution. Several Supreme Court decisions and tens of
thousands of lower court decisions have focused on probable
cause since the Fourth Amendment was ratified. Yet we still
don't know for sure what it means. The best the Supreme Court
has come up with is, based on all the circumstances, is there a
fair probability of criminality or that incriminating evidence
will be found. That's the best the courts have come up with.
Mr. Berman. It has a kind of Stevens talking about
pornography quality to it. We know it when we see it, but I
think it's--Terry or reasonable suspicion has been we have
enough to make a Fourth Amendment intrusion, which means we
stop, frisk, look around. But that's based a lot on appearances
and informant information and so on. In order to conduct a more
intrusive search--home, telephone--we want something more
concrete and articulable than just the facts and circumstances
which say, I think a crime is happening. We think that it has
to be facts which say, we are reasonably not certain, but we
have reasonable grounds to believe that if we keep pursuing, we
are going to find the crime is real.
Mr. Fishman. The reason the Supreme Court more or less
invented the reasonable suspicion test in Terry is because the
police procedure involved in Terry, ``stop and frisk,'' is much
less intrusive than the types of procedures normally requiring
probable cause. A stop or a frisk, a brief questioning, a
patdown, however upsetting it is to the individual, is nowhere
as intrusive as a search of the home or an arrest, or a search
of a person's pockets and so on.
What's unusual, perhaps even radical, about Senator
DeWine's proposal is that it would take the reasonable
suspicion standard and apply it to an extremely intrusive form
of surveillance. There's nothing more intrusive than
surreptitious electronic surveillance of communications. It
would be a radical change from the current state of the law. I
think it would nonetheless be upheld as constitutional because
it is very tightly drawn and because of necessity in which we
find ourselves, given the sick and dangerous world that we
exist in. But it clearly is a significant departure from the
entire range of reasonable suspicion jurisprudence the Supreme
Court has given us to date.
Mr. Berman. And my last comment, if it's the last comment,
is that I don't think a case has been made how this standard if
applied, would put us in any real different factual
circumstances than we were in the cases that we're looking at.
And if you can't show a major pay-off, why risk the
constitutional uncertainty and increase the pool of people that
may end up on a watch list, and we don't know where we're going
with all of this, how far the intrusion is going to be, whether
you're going to be stopped, whether you're going to be
searched, whether you're going to be followed. I understand our
country is under a serious threat but the pressure on civil
liberties is also going to be serious and we want to maintain
that balance.
Chairman Graham. Senator Kyl.
Senator DeWine.
Senator DeWine. Just a follow-up, if I could. Mr. Fishman,
you have pointed out in your testimony that under our bill we
are talking about non-U.S. persons. We're not talking about
U.S. citizens. We're not talking about resident aliens, legal
resident aliens. We are talking about non-U.S. persons. And
you've also in your testimony--Mr. Berman disagrees with you in
his written testimony--have said that the courts have made some
distinction between the way non-U.S. persons and U.S. persons
can be treated. Is that correct?
Mr. Fishman. Particularly non-U.S. persons who are here
unlawfully. Yes.
Senator DeWine. Unlawfully. Let me, if I could, quote from
Terry and ask you if this is--not if it's a correct quote, I'm
reading directly from the Supreme Court, but is this the
essence of it. If it's not, then you can add something to it.
Mr. Chairman, I think when we look at reasonable suspicion,
it is helpful to look at this part of Terry. The court says,
``In justifying the particular intrusion, the police officer
must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant intrusion.''
Is that basically the essence of it?
Mr. Fishman. Yes, Senator. That's the standard that the
Court enunciated in Terry and has stuck to ever since. It's not
enough to have a hunch. It's not enough to have an
inarticulable feeling. There has to be some evidence put
together with other circumstances and experience which justify
the reasonable suspicion. That's correct.
Senator DeWine. Then it goes on to say, ``It is imperative
that the facts be judged against an objective standard. Would
the facts available to the officer at the moment of the seizure
or the search warrant a man of reasonable caution to believe
the action taken was appropriate?''
Mr. Fishman. Precisely, Senator.
Senator DeWine. That it is in fact an objective standard as
well?
Mr. Fishman. Yes, it is. The Court has insisted on that
throughout, yes.
Senator DeWine. We've finally found, Mr. Chairman,
something that both our witnesses can agree on as far as what
the law is.
Mr. Fishman. Absolutely.
Mr. Berman. We agree on that.
Senator Kyl. Mr. Chairman, could I just ask one more
question.
Chairman Graham. Okay.
Senator Kyl. One of the ideas that I originally had--and
I'm not proposing this right now because it would require
Senator DeWine's concurrence and we haven't had a chance to
visit about it--but one possibility here is to take the Kyl-
Schumer as one change to reduce the requirement of the
organizational connection but maintaining the probable cause
requirement to international terrorism. And then flip the coin
over and say, however, if you have reasonable suspicion--if you
can prove--if there is probable cause to believe that the
individual is acting in concert with known terrorists as part
of an international terrorist organization or is an agent of a
foreign power--in other words, you've got a probable cause
requirement to establish that, which is the existing law--then
you could reduce the evidence of the planning to commit or is
in the process of committing an act of terrorism to the
reasonable standard test that Senator DeWine has suggested.
The idea behind that being that, if you can demonstrate the
connection to an agent of a foreign power or to a terrorist
organization, then it would warrant a lower standard to get in
and find out what's on this person's computer or what's in his
home. But if you can't establish by probable cause the
connection to the foreign government or terrorist organization,
then you're going to have to have the existing probable cause
standard.
Mr. Fishman. In other words, probable cause of the
connection to the group would be enough, plus reasonable
suspicion that this particular individual is engaged in
terrorist activities?
Senator Kyl. Correct.
Mr. Berman. There's another formulation of that which if
you want to drop the--if you lower the probable cause prong of
whether someone is an agent of a foreign power. In other words,
we're not sure, rather than playing with the individual versus
is a foreign power, then you might raise the evidentiary prong
of the second part which is if we don't know, that we don't
have probable cause that it's a terrorist group, we have to
have something more like probable cause of a crime as a second
prong of the test.
Senator Kyl. Well, that's exactly what I was saying though.
I mean that's the Kyle-Schumer provision. You still have to
have the probable cause of the crime or the terrorism, you
know, but you don't have to have the probable cause with the
connection of the foreign country because maybe there isn't
one. But there is still--and I understand the confusion because
of the way we're doing this. We're changing a definition and I
would agree with you, Mr. Berman, about one thing. It's not
done in the most clearcut way. You know, you're your own agent,
but you're a foreign person and therefore you could be
connected to an act of international terrorism if we can prove
that you're engaged in a terrorist activity.
Mr. Berman. Right.
Senator Kyl. So you get there but you have to connect the
dots to get there and I understand that that does make it a
little bit more confusing. But, if there is no probable cause
nexus to foreign government or terrorist organization, then it
seems to me that our bill is warranted, that you can focus on
the individual but would have to have probable cause of the act
of terrorism. Whereas, if you can make that connection to the
foreign country or terrorist organization, then that would
warrant you in applying a lesser standard--the DeWine
standard--with respect to the terrorist activity that you're
focused on. Wouldn't that be a possible way to approach this?
Mr. Berman. I'd like to meet and talk about what we mean
here because I've always read the second prong of the statute
as a quasi-reasonable suspicion standard already. It is
probable cause to believe that you are an agent of a foreign
power and then it is who may be engaging in terrorism or
activities. It's not who is--where we have probable cause to
believe that he is engaged.
Senator Kyl. See, I think you're correct and that's why I
don't think that Senator DeWine's change really does that much
damage to the intent of FISA to begin with. Do you have any
comment on that, Mr. Fishman?
Mr. Berman. You don't want to say it that--you want to make
sure that it does some--if it doesn't affect the statute then--
--
Senator Kyl. Then why proceed, is what you're saying, yes?
Mr. Fishman. I hate to come on like a law professor but
what can I do? That's what I am. I'd feel much more comfortable
looking at the language rather than giving an off-the-cuff
reaction, although it's an intriguing idea.
Senator Kyl. That's fair. Thank you, Mr. Chairman.
Chairman Graham. Are there any further questions?
Again, I want to thank both of you. I share the opinion
that's been expressed by the Members of the value of having two
thoughtful, knowledgeable individuals give us the benefit of
their evaluation of the other's comments. That helps to sharpen
the issue, for which we are both appreciative and the
beneficiary.
If there's no further discussion or questions, this hearing
is closed.
[Whereupon, at 4:33 p.m., the hearing was adjourned.]
.