United States Senate Committee on the Judiciary
The USA PATRIOT Act In Practice: Shedding Light on the FISA Process.
September 10, 2002

The Honorable Strom Thurmond
United States Senator , South Carolina

Mr. Chairman:

Thank you for holding this important hearing regarding the implementation of the USA PATRIOT Act. As we approach the anniversary of September 11, it is entirely appropriate that we examine the effectiveness of the reforms made by this historic piece of legislation. By conducting oversight, this Committee will be better able to assist the Attorney General in his efforts to keep our Nation safe from terrorism.

In the wake of last year’s terrorist attacks, Congress worked in a bipartisan manner to improve our abilities to fight terrorism. The Senate, by an overwhelming margin of 98 to 1, approved the package of reforms that comprise the PATRIOT Act. The PATRIOT Act was designed to make America safer while at the same time preserving our cherished liberties. I strongly supported its passage last year, and I continue to support the reforms made by this important piece of legislation.

In the aftermath of the attacks, Congress determined that amendment of the Foreign Intelligence Surveillance Act (FISA) was necessary in order to provide for increased cooperation between intelligence officials and law enforcement. Under FISA, intelligence officials are able to secure warrants to search or conduct surveillance on individuals who are associated with foreign powers. FISA warrants enable the Government to conduct searches or surveillance if there is probable cause to believe that the target is the agent of a foreign power. This standard is more relaxed than the standard used for criminal warrants. For example, the Government does not need to show evidence of criminal activity. It is only necessary to show a target’s connection with a foreign power. This standard is more lenient because the purpose of the surveillance is associated with matters of national security.

The PATRIOT Act implemented two important reforms with respect to FISA. First of all, the Act made it easier for the Government to conduct surveillance. Previously, in order to secure a FISA warrant, the government had to show that foreign intelligence was the primary purpose of the surveillance. The PATRIOT Act amended the law by requiring that foreign intelligence be a “significant” purpose of the surveillance. The PATRIOT Act also allowed for more extensive coordination between intelligence and law enforcement officers in order to protect against acts of international terrorism.

In response to the changes in the law, the Department of Justice issued new rules governing FISA warrant applications and the sharing of information between intelligence and law enforcement officers. On May 17, 2002, the Foreign Intelligence Surveillance Court rejected portions of these new procedures as they applied to U.S. citizens and resident aliens. The case is now on appeal to the FISA Court of Review.

I have reviewed the Attorney General’s interpretation of current law and the actions taken by the Department of Justice, and I find the Department’s positions to be consistent with the reforms made by the PATRIOT Act. The Department has properly construed the changes that Congress made to FISA. For example, the Department has correctly noted that it is now appropriate to secure a FISA warrant if an important purpose of the surveillance is related to a criminal investigation, as long as foreign intelligence remains a significant purpose of the overall investigation. The Department has also appropriately implemented the provisions of the PATRIOT Act that allow for the coordination of intelligence and law enforcement investigations. When this Committee considered the PATRIOT Act, we meant to enhance information sharing. We concluded that it is dangerous to the safety of our Nation to erect artificial walls between intelligence officers and law enforcement officers. The PATRIOT Act provided for the proper coordination and sharing of information, so that our Government does not fight the war on terrorism with one hand tied behind its back.

Unfortunately, the Foreign Intelligence Surveillance Court held that these new procedures result in an end-run around the strict requirements of a criminal search warrant. By allowing criminal prosecutors to advise intelligence officials on the initiation, operation, or continuation of FISA searches, the Court found a blurring of the line between law enforcement purposes and intelligence purposes.

However, this analysis fails to account for the protections that are still provided for in the FISA regime. First of all, in order to obtain a FISA warrant, the Government must show that there is probable cause to believe that the target is the agent of a foreign power. Law enforcement officers cannot avoid the stricter requirements of criminal warrants unless they can show a suspect’s connection to a foreign power. Second, foreign intelligence must be a significant purpose of the investigation. Therefore, unless foreign intelligence makes up a critical component of the overall investigation, the more lenient standards of FISA are not available to the Government.

With these protections available, there is no need to curtail the changes made by Congress in the PATRIOT Act. Congress did not create a massive loophole in FISA through which all criminal investigations could go. Rather, Congress made reasonable changes that provide the Department with the tools necessary to fight terrorists who reside in our country and who are associated with foreign powers.

Mr. Chairman, I am pleased that we are discussing these important issues relating to FISA and the changes made by the PATRIOT Act. At the end of the day, the courts will decide many of these issues. However, I think it is important for members of this Committee to make known their views about the intent and purpose of the PATRIOT Act. The Department of Justice has done a commendable job in adjusting FISA procedures according to the changes that Congress made to the law. I would like to welcome our witnesses here today, and I look forward to hearing their testimony.