<DOC> S. Hrg. 107-947 THE USA PATRIOT ACT IN PRACTICE: SHEDDING LIGHT ON THE FISA PROCESS ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SEVENTH CONGRESS SECOND SESSION __________ SEPTEMBER 10, 2002 __________ Serial No. J-107-102 __________ Printed for the use of the Committee on the Judiciary 87-866 U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2003 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 Committee ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama MARIA CANTWELL, Washington SAM BROWNBACK, Kansas JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky Bruce A. Cohen, Majority Chief Counsel and Staff Director Sharon Prost, Minority Chief Counsel Makan Delrahim, Minority Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 11 Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois....................................................... 14 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 10 Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 7 Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 24 prepared statement........................................... 104 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 5 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 129 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 Schumer, Hon. Charles E., a U.S. Senator from the State of New York........................................................... 16 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 8 Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, prepared statement................................... 136 WITNESSES Banks, William C., Professor of Law, Syracuse University, Syracuse, New York............................................. 19 Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein and Fox, Washington, D.C....................................... 21 Halperin, Morton H., Director, Washington Office, Open Society Institute, Washington, D.C..................................... 22 Kris, David, Associate Deputy Attorney General, Department of Justice, Washington, D.C....................................... 17 QUESTIONS AND ANSWERS Responses of William C. Banks to questions submitted by Senator Leahy.......................................................... 66 Responses of Kenneth Bass to questions submitted by Senator Leahy 69 Responses of David Kris to questions submitted by Senator Leahy.. 48 SUBMISSIONS FOR THE RECORD Banks, William C., Professor of Law, Syracuse University, Syracuse, New York, prepared statement......................... 72 Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein and Fox, Washington, D.C., prepared statement.................. 84 Department of Justice, Daniel J. Bryant, Assistant Attorney General, Washington, D.C., letter.............................. 99 Halperin, Morton H., Director, Washington Office, Open Society Institute, Washington, D.C., prepared statement................ 112 Hatch, Hon. Orrin G., Hon. Strom Thurmond, Hon. Jon Kyl, Hon. Mike DeWine, Hon. Jeff Sessions, Hon. Mitch McConnell, joint statement...................................................... 116 Kris, David, Associate Deputy Attorney General, U.S. Department of Justice, Washington, D.C., prepared statement............... 120 Specter, Hon. Arlen, letter to Hon. Robert Mueller............... 134 U.S. Foreign Intelligence Surveillance Court, Hon. Colleen Kollar-Kotelly, Presiding Judge, letter and attachments........ 142 THE USA PATRIOT ACT IN PRACTICE: SHEDDING LIGHT ON THE FISA PROCESS ---------- TUESDAY, SEPTEMBER 10, 2002 United States Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 9:38 a.m., in Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feinstein, Feingold, Schumer, Durbin, Hatch, Grassley, Specter, and DeWine. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. We will begin. I understand Senator Hatch has been delayed in traffic but is coming in, but Senator DeWine, Senator Specter, and Senator Feingold are here. Before we begin, I want to commend Senator Specter for not only this year but for as long as I can remember, he has highlighted this whole issue of FISA and the importance of it, as have Senators Grassley, DeWine, and Feingold. I appreciate this, and I mention this, Mr. Kris, because I know you have worked so very hard on this subject. Today in Vermont, my own State, and also in Arizona, North Carolina, New York, Wisconsin, Maryland, and a number of other States, Americans are making our democracy work by casting votes in primary ballots. This Committee meets today as part of its role in that same democratic process, focusing oversight on one of the most important but least understood functions of our government. We are examining how the Foreign Intelligence Surveillance Act is working, and we are asking how it works not just in theory but in practice. We had begun our oversight hearings last summer, as soon as the Senate majority shifted. After the terrorist attacks on September 11, we focused on expedited consideration of what became the USA PATRIOT Act, providing legal tools and resources to better protect our nation's security. We continue our efforts to ensure that the law is being implemented effectively and in ways that are consistent with preserving the liberties enshrined in the Constitution. Much of our focus today will be on process issues in a secret system. In a nation of equal justice under law, process is important. In a nation whose Constitution is the bulwark of our liberty, process is essential. In administering a system that rightfully must operate under a shroud of secrecy, Congressional oversight of that process is crucial. The USA PATRIOT Act made important changes to the Foreign Intelligence Surveillance Act, which is called ``FISA'' for short. This law set up a secret court to review government applications to conduct secret wiretaps and searches inside the United States for the purpose of collecting foreign intelligence information to help protect this nation's national security. FISA was originally enacted in the 1970s to curb widespread abuses by both Presidents and former FBI officials of bugging and wiretapping Americans without any judicial warrant--based on the Executive Branch's unilateral determination that national security justified that surveillance. The targets of those wiretaps included a Member and staff of the United States Congress, White House domestic affairs advisors, journalists, and many individuals and organizations engaged in no criminal activity but, like Dr. Martin Luther King, who expressed political views threatening to those in power. Indeed, on our panel today is one of the victims of those abuses, Dr. Morton Halperin, whose telephone was illegally tapped by high-level officials in the Nixon Administration. I point this out because I don't want anybody to think all this is ancient history. It has happened more recently than we would like to think. In the USA PATRIOT Act, we sought to make FISA a more effective tool to protect our national security, but the abuses of the past are far too fresh simply to surrender to the Executive Branch unfettered discretion to determine the scope of those changes. The checks and balances of oversight and scrutiny of how these new powers are being used are indispensable. Oversight of a secret system is especially difficult, but in a democracy it is especially important. Over the last two decades, the FISA process has occurred largely in secret. Clearly, specific investigations must be kept secret, but even the basic facts about the FISA process have been resistant to sunlight. The law interpreting FISA has been developed largely behind closed doors. The Justice Department and FBI personnel who prepare the FISA applications work behind closed doors. When the FISA process hits snags, such as during the year immediately before the September 11 attacks, and adversely affects the processing of FISA surveillance applications and orders, the oversight Committees of the Congress should find out a lot sooner than the summer after the September 11 attacks. Even the most general information on FISA surveillance, including how often FISA surveillance targets American citizens, or how often FISA surveillance is used in a criminal case, is unknown to the public. In matters of national security, we must give the Executive Branch the power it needs to do its job. But we must also have public oversight of its performance. When the Founding Fathers said ``if men were all angels, we would need no laws,'' they did not mean secret laws. Our oversight has already contributed to the public's understanding of this process. We have brought to light the FISA Court's unanimous opinion rejecting the Justice Department's interpretation of the USA PATRIOT Act's amendments. That was because of requests from this Committee. If it had not been for the prolonged efforts of the Committee-- and I want to note especially Senator Specter and Senator Grassley--one of the most important legal opinions in the last 20 years of national security law, even though it was unclassified, would have remained totally in secret. This is an unclassified government document remaining secret. We brought it out into the open. As it is, this unclassified opinion was issued in May, but it was not released until three months later, on August 20, in response to a letter that I sent, along with Senator Specter and Senator Grassley, to the court. The May 17 opinion is the first window opened to the public and the Congress about today's FISA and about how the changes authorized by the USA PATRIOT Act are being used. Without this pressure to see the opinion, the Senators who wrote and voted on the very law in dispute would not have known how the Justice Department and the FISA Court were interpreting it. The glimpses offered by this unclassified opinion raise policy, process, and constitutional issues about the implementation of the new law. The first-ever appeal to the FISA Court of Review, which the Solicitor General of the United States argued yesterday, was transcribed and, yesterday, with Senator Specter and Senator Grassley, I sent a letter asking the court to provide an unclassified version of the oral argument and their decision to this Committee. We need to know how the law is being interpreted and applied. Many of the FISA provisions are subject to a sunset. Because of that, it is particularly important that this Committee monitor how the Justice Department is interpreting them, because if we don't know how they are interpreting them, I am one Senator who would not agree to continuing the Act once the sunset is there. Now, let's be very clear about that. This Act has to be renewed. If we are not going to know how it is being used, I think there are going to be an awful lot of Senators, Republican and Democrat alike, who will not vote to continue the Act. The Department of Justice brief makes a sweeping claim regarding the USA PATRIOT Act amendments. The Department asserts that the longstanding ``purpose'' analysis adopted by numerous courts for more than 20 years is simply wrong. Specifically, the Department claims that using FISA for the sole and exclusive purpose of pursing a criminal prosecution, as opposed to collecting intelligence, is allowed. The Department contends that changing the FISA test from requiring ``the purpose'' of collecting foreign intelligence to a ``significant purpose'' allows the use of FISA by prosecutors as a tool for a case even when they know from the outset that the case will be criminally prosecuted. They claim that criminal prosecutors can now initiate and direct secret FISA wiretaps, without normal probable cause requirements and discovery protections, as another tool in criminal investigations, even though they know that the strictures of Title III of the Fourth Amendment cannot be met. In short, the Department is arguing that the normal rules for Title III and criminal search warrants no longer apply in terrorism or espionage cases, even for U.S. persons. I was surprised to learn that, as the ``drafter of the coordination amendment'' in the USA PATRIOT Act, the Department cites my statement to support its arguments that there is no longer a distinction between using FISA for a criminal prosecution and using it to collect foreign intelligence. Well, had the Department of Justice taken the time to pick up a phone and call me, I would have told them that was not and is not my belief. Let me state that again. Even though the Justice Department's brief cites what is my belief, let me tell you right now they are wrong. It is not my belief. When they cite me, they ought to talk to me first. We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool. We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so. Indeed, if we wanted to make a sweeping change in FISA, it would have required changes in far more parts of the statute than were affected by the USA PATRIOT Act. In addition, as Professor Banks points out in his testimony, such changes would present serious constitutional concerns. The issues relating to FISA implementation are not just legal issues, however. Our Committee has also held closed sessions and briefings. We have heard from many of the FBI and Justice Department officials responsible for processing and approving FISA applications. We cannot go over all of this in an unclassified forum, but I can say this: before the 9/11 attacks, we discovered the FISA process was strapped by unnecessary layers of bureaucracy and riddled with inefficiencies. Some of these inefficiencies had to do with legal issues that we addressed in the USA PATRIOT Act, but many did not. They related to the same problems that this Committee has seen time and time again at the FBI: poor communication, inadequate training, a turf mentality, and cumbersome information management and computer systems that date back to the Dark Ages. Even a cursory read of the unanimous FISA Court opinion bears that out. The FISA Court was not frustrated with the state of the law. Instead, all seven Federal judges were concerned about a track record marred by a series of inaccurate affidavits that even caused them to take the extraordinary step of banning an agent from appearing before the court in the future. I continue to support Director Mueller's efforts to address these problems, but the going will not be easy. As we conduct oversight of the FBI and the Justice Department, I have become more convinced there is no magic elixir to fix these problems. It is tempting to suggest further weakening of the FISA statute to respond to specific cases, but the truth is that the more difficult systemic problems must be properly addressed in order to combat terrorism effectively. Furthermore, given the secrecy of the FISA process and the law relating to the FISA, it is impossible to intelligently address the problems that do exist without risking doing more harm than good. As this week's mostly secret appeal before the FISA review court demonstrates, the consequences of amending that statute can be far-reaching and perhaps unintended. FISA was enacted for a reason. It is even more important to the nation today than it was a year ago, before September 11th, and we need it to work well. It ensures that our domestic surveillance is aimed at true national security targets and does not simply serve as an excuse to violate the constitutional rights of our own citizens. We must first exercise the utmost care and diligence in understanding and overseeing its use. I believe it was the Los Angeles Times, in an editorial shortly after September 11th, that said the buildings may have come down, our Constitution did not. And if we want to protect ourselves, we should make sure that both the buildings and Constitution have not come down. Senator Hatch? STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Well, thank you, Mr. Chairman. I want to commend you for holding a hearing on this important issue--the Foreign Intelligence Surveillance Act, or FISA, process. The intelligence community and the law enforcement agencies rely on FISA to conduct critical intelligence gathering in order to protect our country and prevent further terrorist attacks. And let nobody miss the point. We have to be very vigilant and we will have to continue to be very vigilant in order to prevent any future terrorist attacks in this country. And we are very concerned when people are willing to give their own lives in suicide bombings. We know that that is a matter of even greater concern to many people. Now, I look forward to examining this important issue relating to the FISA process today and am hopeful that we can do this in a spirit of bipartisanship. These are complex issues, and the Committee's constructive role is important. The timing of this hearing--one day before the first-year anniversary of the attack on our country--could not be more telling. Our joint session last Friday in New York City helped to emphasize to everyone the horrible tragedy that our country suffered on September 11th. It reminded us of our continuing need to be vigilant in protecting our country from further terrorist attacks. After last year's tragic attack on September 11th, the administration and Congress worked together to enact the PATRIOT Act. This is a broad package of measures that provided law enforcement and the intelligence communities with the necessary tools to fight terrorism worldwide and, of course, protect our country. These reforms were critical to enhance our government's ability to detect and prevent terrorist attacks from occurring again. We worked together on these reforms and passed them in the full Senate on a vote of 99 to 1. One of the most significant issues addressed by the PATRIOT Act was the lack of effective coordination between intelligence and criminal investigations. This was not a new issue. The Bellows report relating to the Wen Ho Lee investigation, as well as the GAO Report on the subject, clearly identified the problem of intelligence sharing and the need to address the issue even before the September 11th attack. The issue was also identified by the Hart-Rudman Commission and dated back to the 1990s. The PATRIOT Act addressed the issue in two significant ways: First, Congress, with Section 218 of the Act, modified the ``primary purpose'' requirement for FISA surveillance and searches to allow FISA to be used where a significant, but not necessarily primary, purpose is to gather foreign intelligence information. Second, Section 504 of the PATRIOT Act specifically authorized intelligence officers who are using FISA to consult with Federal law enforcement officers to ``coordinate efforts to investigate or protect against'' foreign threats to national security including international terrorism. Based on these two provisions, it is clear that Congress intended to allow greater use of FISA for criminal purposes, and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers. At issue now is a very difficult but critical issue, and that is, where to draw the line between intelligence gathering and criminal investigations to ensure that our intelligence community and law enforcement agencies are fully capable of detecting and preventing future terrorist attacks while at the same time ensuring that Americans' civil liberties are preserved. The Justice Department's interpretation of the PATRIOT Act modifications to the FISA process is currently at issue before the FISA Court. And I commend the Justice Department for bringing this issue to the FISA Court for its review. In March of this year, the Justice Department adopted revised guidelines governing intelligence sharing and criminal prosecutions, and then sought FISA Court approval for these revisions. The FISA Court approved most of these modifications but rejected a portion dealing with the role of criminal prosecutors in providing advice and direction to the intelligence investigations. The matter is now pending on appeal before the Foreign Intelligence Court of Review. We all expected the courts to review this matter, but we cannot deny that Congress specifically intended such enhanced information sharing to take place. We must not revert back in this process and again risk a culture that would fail to pursue aggressively the investigation of terrorist threats. In reviewing the FISA process, we need to consider the fact that there has been a dramatic change in the terrorist landscape since 1978 when FISA was enacted. There is no question that in response to our country's efforts to fight terrorism worldwide, terrorists are increasingly operating in a more decentralized manner, far different from the terrorist threat that existed in 1978. The threat posed by a small group--even a lone terrorist--may be very real and may involve devastating consequences, even beyond those suffered by our country on September 11th. Given this increasing threat, we have to ensure that intelligence and law enforcement agencies have sufficient tools to meet this new--and even more dangerous--challenge. Being now aware of the evolving terrorist threat, we also may need to examine carefully proposals to modify the FISA statute. This Committee's inquiry should be forward-looking and done without exaggeration of past missteps and miscues which have since been corrected. The stakes are simply too high for anyone to inject politics into an area which requires careful and studied deliberation. Today's witnesses will help us to consider these critical issues, and I look forward to hearing each of our witnesses today, and I welcome you all to the Committee. We appreciate the effort and time that you have put in to present your views to us here today. Chairman Leahy. Thank you, Senator Hatch. Normally we would go right to the witnesses now, but Senator Feinstein has asked to make a brief statement, as have Senators Specter, Feingold, and DeWine, each one of whom has had an interest in this subject. And so we will not follow the normal routine, but I would ask Senators if they might be brief. STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Well, thank you, Mr. Chairman, very much for holding the hearing, and I appreciated the opening statements of both yourself and the ranking member. I was present at the hearing when the Attorney General brought forward his concern and took an interest in it, and I think I actually suggested the word ``significant.'' So I want to make a couple of comments. I have read the Attorney General's opinion of March 6, and I have read the FISA opinion, I think it is April 17th. And I want to go back, to the best of my recollection, to the hearing when we made the decision. We knew about the problems FBI agents in the Minneapolis field office had in getting a FISA order in the Moussaoui case. However, I do not believe any of us ever thought that the answer to the problem was to merge Title III and FISA purposes. Now, we felt--or I felt that that was what the administration originally proposed when they sent legislation to us to change the words ``primary purpose'' in the FISA statute to ``a purpose.'' And many of us believe that such a change would have eliminated the distinction between Title III and FISA. Any purpose, if it was done, even a stupid or a silly one, would have passed muster and allowed a FISA application to proceed. When I questioned Attorney General Ashcroft at this Judiciary Committee hearing, he agreed that ``significant purpose'' would represent a compromise. Now, Webster's defines the word ``significant'' as ``having or likely to have influence or effect: important; a significant piece of legislation''; also, ``of a noticeably or measurably large amount; a significant number of layoffs, for example, producing significant profits.'' So that was the definition that we then selected, to lower the bar slightly but not entirely, and to provide that when one went for a FISA warrant, there had to be a significant relationship to foreign intelligence. And the bill that ultimately passed both House and Senate and became law included this compromise ``significant purpose'' standard. Now, in the Attorney General's brief in the FISA Appellate Court, this brief argues against the balancing compromise language that Attorney General Ashcroft accepted, I thought, at the hearing. Under the administration's primary argument in its brief, the administration need not show any purpose of gathering foreign intelligence in any investigation involving national security. The administration seems to contend that a Federal prosecutor can direct the FISA process in a case that is 100 percent law enforcement. I don't agree with that. As a backup alternative argument, the administration seems to contend that any foreign intelligence purpose need not only be insignificant and, in any event, can still be fully directed by law enforcement. I disagree on that. Apparently, they believe they can get a FISA order even if a case is 80 or 90 percent law enforcement. I disagree with that. In my view, there has been a skewing, Mr. Chairman, of what we set up in utilizing a ``significant purpose'' must be foreign intelligence---- Chairman Leahy. I tend to agree, and that is why I got very concerned when I saw them quote me and what my position was on that, which is totally different than what my position is. Senator Feinstein. So that is my recollection of the matter and the discussion that took place, because I think in my Q and A with the Attorney General, we talked about various words, and I thought it was the intend of the Committee that we wanted to maintain the primary purpose being the gathering of foreign intelligence, not Title III, but we wanted to slightly lower the bar because of the particular nature of the circumstances we were in and, therefore, came up with the words ``significant purpose,'' meaning important, significant, noticeably, measurably large amount. Thank you, Mr. Chairman. Chairman Leahy. Thank you, Senator Feinstein. Senator Specter? STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. The application of the Foreign Intelligence Surveillance Act, the proper application, is of enormous importance as we are trying to deal with homeland security and at the same time there are major challenges to what the Department of Justice is doing with civil rights. And the Department's actions leave a lot to be desired on both scores. It would have seemed logical that, after the extensive examination of the Foreign Intelligence Surveillance Act in the Wen Ho Lee case, there would have been an understanding of its application. And there was a miscommunication at the highest levels between the Director of the FBI and the Attorney General, which we corrected by statute, and without going into the many ramifications of Wen Ho Lee, suffice it to say that the Department of Justice was on notice as to what FISA required. The failure to obtain a warrant under the Foreign Intelligence Surveillance Act for Zacarias Moussaoui was a matter of enormous importance, and it is my view that if we had gotten into Zacarias Moussaoui's computer, a treasure trove of connections to Al-Qaeda, in combination with the FBI report from Phoenix where the young man with Osama bin Laden's picture seeking flight training, added to that Kuala Lumpur where the CIA knew about two men who turned out to be terrorist pilots on 9/11, plus the NSA advisory a day before 9/11, which wasn't interpreted until September 12th, that there was a veritable blueprint and 9/11 might well have been prevented. And as we are working now to prevent another 9/11, there is a continuing question as to whether the FBI is properly applying a probable cause standard in seeking a FISA warrant. We had a very important hearing where Special Agent Coleen Rowley from the Minneapolis field office came in on June the 6th, and it was revealing because Agent Rowley pointed out that the U.S. Attorney in Minneapolis looked for a 75- to 80-percent probability before getting a FISA warrant. And Agent Rowley herself thought that the standard was more probable than not. And at that hearing on June 6th, there was considerable conversation about the standard for probable cause set forth by then-Associate Justice Rehnquist in the Gates case, which said, in critical part, as early as Locke, which is an 1813 decision, Chief Justice Marshall observed in a closely related context the ``probable cause,'' according to its usual accepted definition means ``less than evidence which would justify condemnation...it imports a seizure made under circumstances which warrant suspicion.'' And then the opinion goes on to say that ``more probable than not'' has no application. We had a closed session with FBI agents on July 9th, and it would have been thought that when the public hearing occurred on June 6th, with a lot of publicity, the FBI agents would have picked up the Gates standard or that the Director of the FBI at the hearing would have told the FBI agents the Gates standard. But in a way which was really incredulous, the FBI agents didn't know the standard. They didn't know it when they were dealing with the Moussaoui case, and they didn't know it almost a year later when we had the closed-door hearing. And I wrote to Director Mueller the very next day--and I ask, Mr. Chairman, that this letter be made a part of the record--setting forth the Gates standard again and asked him to implement it. Again, in an incredulous way, 2 months have passed and no response. So as of this moment, without oversight function, we do not know whether, notwithstanding all of our pressure, they are using a proper standard for probable cause. Now, there have been other matters which have been of enormous importance, such as the FISA Court disqualifying an FBI agent. And on this state of the record, I am not sure why. And we are trying to find out. But I believe that there has been an inevitable effect that the FBI is gun-shy. The testimony that we had on Moussaoui suggested that the agents felt their best course was to do nothing because they would get into no trouble if they did nothing. But if they did something, they might turn up like the FBI agent who was disqualified. And then in our closed hearings, Senator Leahy, Senator Grassley, and I tried to find out what was going on, and we found out that there was an opinion of the FISA Court. But, inexplicably, the Department of Justice wouldn't give it to us, something that just can't be understood. So we went to the FISA Court, and at first the FISA Court entered a plea of separation of powers. And we said that won't wash here, Judges. We are the Judiciary Committee. We have a right to oversight to see what is going on. And, finally, we got the opinion, and then we understood why the Department of Justice wouldn't give it to us: because it was highly critical of the Department of Justice. And then in that opinion, the court goes into some detail about rejecting the Attorney General's request for a regulation which would take the PATRIOT Act and turn the Foreign Intelligence Surveillance Act on its head. It has already been discussed, and I think very well, this morning. But just one brief comment. When the purpose of the FISA Act was foreign intelligence and the court interpreted ``purpose'' as ``primary purpose,'' the change was made to ``significant purpose.'' But then the Department of Justice came in with its regulation and said that since the PATRIOT Act said a significant purpose was foreign intelligence, then the primary purpose must be law enforcement--which is just, simply stated, ridiculous. The word ``significant'' was added to make it a little easier for law enforcement to have access to FISA material, but not to make law enforcement the primary purpose. So here, Mr. Chairman, we are dealing with a situation where, by all indications, the FBI and the Department of Justice are not being as aggressive as they should be and can be with an appropriate standard for probable cause, and at the same time they are subverting the purpose of the Foreign Intelligence Act by trying to make it much, much broader than it was originally intended or that we made the modification under the PATRIOT Act. And I think it is appropriate to put DOJ and FBI on notice that we are not going to let this matter drop. We are going to pursue it. And we are going to find out why the agent was disqualified, and we are going to find out what the FBI is doing on these matters, because this is a matter of enormous importance. Nothing is going on in Washington today, Mr. Chairman, and I thank you for convening this hearing and getting a proper application of the Foreign Intelligence Surveillance Act. Thank you. Chairman Leahy. I appreciate it. As I said earlier, I also appreciate the fact that you have for years been pushing this issue in both Democratic and Republican Administrations. You have been very consistent in that. I do want more answers. I do feel that we have asked legitimate questions and not gotten the answers. Again, I am urging the Department of Justice to come back with those answers. Otherwise, we are going to have to consider subpoenaing answers to our questions, and I know that the Republican chairman of the House Judiciary Committee has expressed similar concerns at the failure to get answers, I do not want to see a case where the House and Senate Judiciary Committees have to issue subpoenas to get answers to legitimate questions. And I would hope that it would not come to that, but if it does, it does. Senator Feingold? STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Feingold. Thank you, Mr. Chairman. Chairman Leahy. And be sure and turn your microphone on. Senator Feingold. It is on. Thank you, Mr. Chairman, for holding this extremely important hearing on the implementation of the PATRIOT Act and FISA. I want to especially compliment Senator Feinstein and Senator Specter for their very well-informed and precise analysis of the question that is before us today. Frankly, this abuse, in my view, by the Department of Justice of the language of the bill and unreasonable interpretation of the language of the bill is just the reason why I could not in the end vote for the USA PATRIOT Act as I feared that this kind of attempt would be made, and this is one of several examples where I think the language, as troubling as the language was to me in many cases, is strained even beyond a reasonable interpretation in a way that does not comport with the intent of even those who supported the legislation. One year ago today, none of us anticipated, obviously, the terrible events of September 11th. And since then I have watched America come together in many wonderful ways, communities uniting, people taking the time to help others, and a Congress that is committed to protecting our country. But I believe that in our haste to develop legislation to help America, we went too far in some areas. Now, the courts have played a significant role in exercising their role of oversight. There have been important recent court decisions prohibiting holding immigration proceedings in secret, requiring the disclosure of the identities of the hundreds of individuals rounded up since 9/ 11, and questioning the designation and indefinite detention of U.S. citizens as enemy combatants. Even the most recent FISA decision we have been discussing today, it is the court and not the Department of Justice that has called out for appropriate restraint in our anti-terrorism efforts. Last fall, as the Senate debated the PATRIOT Act, there were very few voices advocating a slower gait as we raced towards passing some of the most radical changes to law enforcement in a generation. And so I think that makes this hearing even more important. Chairman Leahy did the right thing in holding this hearing. Congress has an important oversight responsibility and it has to exercise that responsibility. We must carefully examine what we have done in the battle against terrorism and also what this Department of Justice will ask us to do in the future. Thank you, Mr. Chairman. Chairman Leahy. Senator DeWine? STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO Senator DeWine. Thank you, Mr. Chairman. I want to thank you, Mr. Chairman, for holding this hearing today to discuss the Foreign Intelligence Surveillance Act. As my colleagues have pointed out, FISA is one of the most important investigative tools available to us in our fight against terrorism. Bluntly, unless we effectively use the powers of FISA, we will not be safe from terrorism. It is just that simple. Now, today the congressional spotlight is on homeland security and defense, and that is a very good thing. That is all well and good. And when I go home to Ohio, Mr. Chairman, people ask me about the homeland security bill. But I must say that at the end of the day, we can make all sorts of improvements in our homeland defense reorganization. We can move agencies around, departments around, box to box. We can improve our security at airports. And we can work to tighten our borders. But I truly believe that our success in defeating terrorism begins and ends with effective intelligence. And FISA is an absolutely critical part of this intelligence-gathering operation. So I am hopeful that today's hearing will be the beginning--the beginning of a period of increased emphasis and focus on the FISA process as a whole. It deserves and I believe requires a great deal of attention from this Committee, and I congratulate you for this hearing. It requires attention from the Intelligence Committee and from the entire Congress. Mr. Chairman, we simply cannot overstate the importance of FISA warrants and the contribution that FISA surveillance makes to the preservation of our national security. After the attacks a year ago tomorrow, it became clear to all of us that now, more than ever before, our intelligence-gathering agencies and law enforcement personnel must be able to communicate and share critical information about their investigations. We all know that. We know that our ability to protect the Nation from future terrorist attacks will be compromised unless we are able to fully and effectively combine the resources of our intelligence and law enforcement efforts. And the push, candidly, for the PATRIOT Act was based on that understanding. FISA, of course, does pose some challenges, and it does create some risks, and we should not underestimate those. The FISA statute as amended by the PATRIOT Act creates a system of surveillance that is very powerful and, for the most part, completely secret. Accordingly, it is vital that we effectively balance the power of this statute and the need for intelligence information with clear, rational, and coherent boundaries around the government's ability to conduct these secret surveillances. My belief is that the PATRIOT Act brings us closer to the proper balance. I am not as convinced as some of my colleagues that the government's position is wrong in regard to this. What I do think is important, though, is that this matter be resolved so that this Congress can find out and so that everyone who is charged with the safety and security of this country can understand what guidelines they are operating under. Mr. Chairman, I do believe that we need to consider whether current law provides for sufficient congressional oversight, and we need to consider how we on this Committee and the Intelligence Committee can conduct this oversight. Because unless we fully understand how the FISA law is being interpreted by the court, this Congress cannot fulfill its constitutional duty--its constitutional duty of oversight and its constitutional duty after we pass a law to see how it is working, to see how the courts are interpreting it, and then to make a rational public policy decision as to whether or not that law should be changed. With only two written FISA decisions--that I am aware of, at least--in 24 years, that is impossible to know. It is impossible for this Congress to know how the law is being interpreted, and that has been true for previous Congresses. Now, some of us believe, although we certainly cannot prove it because of the fact of the secrecy involved, that the interpretation of the original FISA law has become tighter and tighter and more burdensome and more burdensome over the years and that the relationship between the Justice Department and the courts, meaning that relationship whereby the Justice Department by definition has to, of course, follow what the court says, has resulted in an interpretation of a law that has been very strict. I believe that this interpretation may have been stricter than Congress may have intended it or that maybe Congress would have allowed to continue. The fact is Congress did not know that. Congress did not know. We will never know, frankly. I believe that that interpretation very well could have threatened our security. This country, candidly, no matter what your belief about that issue, was not well served by the lack of effective oversight for the past 24 years. I happen to believe it has helped to create a risk-averse culture at the FBI. But, again, that is something because of lack of information that no one will ever know for sure. So, Mr. Chairman, I thank you for holding this hearing. The legal issues that have been raised and that we will discuss are important. I am anxious to hear from our panel of experts, including what the Justice Department believes. But I believe, frankly, that our look at FISA must go beyond this. And what really is important is Congress' ability to, over time, monitor what is, in fact, happening with FISA because our national security and liberties are at stake. We have to devise a method to do this while at the same time protecting the secrecy that we know is so very, very important in regard to the FISA Court. No one should misinterpret my comments in regard to FISA. I think FISA is and can be a very, very effective tool, and what is going on in FISA today is being very, very helpful in our war against terrorism. I just believe that we can do a better job, and the only way that we can fulfill our obligation here in Congress to make sure that the FISA law is finely tuned and is, in fact, serving the needs of this country in the year 2002 and beyond is for us to somehow develop the ability to get more information about what is going on. Thank you, Mr. Chairman. Chairman Leahy. Thank you. As the Senator perhaps knows, we have some draft legislation circulating on changes, and I would encourage him to take a look at it. Senator Durbin will be the last person to speak--Senator Durbin will be the penultimate Senator to speak. [Laughter.] Chairman Leahy. We will then go to Senator Schumer. There will be no other Senators who will speak. This is such an extremely important issue, and every member here has worked very closely on the whole issue of the USA PATRIOT Act. Senator Durbin? STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLNOIS Senator Durbin. Thank you, Mr. Chairman. Mr. Chairman, let me thank you and Senator Specter, Senator Grassley, Senator Feinstein, and others for your leadership on this issue and for calling this hearing today. I think this hearing is of historic importance. Behind closed doors, with the highest level of secrecy, there is a battle that is being waged in our country. It is a battle over an issue as basic as the origin of our Nation: the power of a government, the rights of an individual. The release of the May 17th opinion by the court that oversees the Foreign Intelligence Surveillance Act was sobering. It was our first insight into that battle. It was our first view behind those closed doors. And what we found as a result of that May 17th opinion troubles me, because what we found is that the court said that the Government has misused the FISA law. The Government has misled the court dozens of times. The FBI had supplied erroneous information in more than 75 applications of the FISA law. The FBI had improperly shared intelligence information with Government prosecutors handling criminal cases. The FBI Director himself had submitted a false statement to the court. And one FBI agent proved so unreliable that the court barred him from ever submitting affidavits again. What is particularly troubling about this May 17th opinion is that a reflection on a decision, another historic decision made by this Congress, after last September 11th. We were told by our Government that the FISA law as written was inadequate to protect America. We were asked to show faith in this Government and to invest it with new authority to protect America from its enemies. And so many of us decided to make that leap of faith. But, as we reflect now, we know that it was a faith born of fear--fear for the security of our Nation, a legitimate fear after September 11th. It was also an expression of faith that our Government would not abuse its new authority under the changes in the FISA law. We felt confident that, given these new tools and these new resources, our Government would defend America but not at the cost of our basic liberties. Sadly, this May 17th opinion from the court has told us that this administration, this Department of Justice has abused the faith entrusted them with this change in the FISA law. In light of these disclosures, I am troubled by those who would use the intelligence failures of September 11th as a justification for even expanding the powers that Government has to monitor individuals within the United States, but not expand meaningful oversight of those powers. What have we learned? We need many more opinions from this court. This Congress and the American people need to review the progress that is being made to make certain that the rights of individuals and the liberties that are so central to America are not abused in the name of national security. We have known for some time that FBI officials were reluctant to seek a FISA search warrant for Zacarias Moussaoui, the so-called 20th hijacker, who was detained a month before the terrorist attack. That fact has prompted calls from the Justice Department and from Members of Congress for additional government authority to obtain warrants beyond the significant expansion of authority already granted by Congress in the USA PATRIOT Act, which I voted for. We now know why the FBI had its doubts about the FISA process. Its credibility and the credibility of the attorneys at the Department of Justice who appear before the FISA Court have been repeatedly called into question, as the May 17th opinion tells us so graphically. Before we make additional changes to the law, before we give additional authority to the Government over the rights and liberties of individuals, before we vastly expand the power of investigations further, we should require a full and complete accounting of these past mistakes. Mr. Chairman, thanks for your leadership on this issue. Chairman Leahy. I do appreciate the fact that some of the inadequacies were brought to the attention of the court by some within the Department of Justice. I agree so much with the Senator from Illinois, the problems that have come to light are problems that can only be affected if we do have adequate oversight. I remember the great flap over Wen Ho Lee and whether there was adequate probable cause to get a computer search just went on and on until after he had downloaded everything from the computer and left. Somebody forgot the obvious thing they should have done, and that was simply have gone to the administrator of computers at the Lab and said, Did he sign a waiver, a blanket waiver to go into his computer? Of course, he had. They didn't need the search warrant in the first place. If somebody had just done what any 15-year-old would have known who was computer savvy to do, what any one of our systems administrators here in the Congress would have known to do, they would have just gone and said, By the way, is there a blanket release to go into computers that are used for company business? And it was there, and they could have gotten it all. Senator Schumer, you get the very last---- Senator Hatch. If I could just make a little short statement? Chairman Leahy. Well, except, of course, for Senator Hatch. Senator Hatch. Sorry to interrupt you, Senator Schumer. Senator Schumer. That is okay. Any time. Senator Hatch. I look forward to your remarks. But I think that these points have been well raised by my colleagues, but errors in FISA applications occurred in 2000. That was under the Clinton administration--that was one of them--and then in 2001 under this administration. Both occurred before Director Mueller assumed his position. And the FBI has since adopted new procedures for processing, and I think the record just needs to show that in April 2002, Judge Royce Lamberth, who was then the presiding judge of the FISA Court, publicly stated, ``We consistently find the FISA applications well scrubbed by the Attorney General and his staff before they are presented to us.'' He also stated that the process is working. It is working in part because the Attorney General was conscientiously doing his job, as is his staff. So I just wanted to make sure that record is clarified. Chairman Leahy. Senator Schumer? STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Thank you, Mr. Chairman. I, too, join the rest of the Committee in thanking you for this much needed hearing. Now, we all know that in times of war and certainly in this post-9/11 world, one of the most difficult questions we face is how to balance security and liberty. It is an age-old struggle. It is one that goes back to the Founding Fathers in their debates about freedom and democracy. And traditionally, when we face threats such as those we face today, security waxes and liberty wanes. Now, I believe there has to be some give and take to deal with the particular threats of the times. The key word is ``balance.'' It is easy to say we face security needs and let's get rid of the Constitution. It is also easy to say we shouldn't change a thing. You know, the Constitution is being thrown away. Those on the hard left and hard right are good at doing each of those, and those are clear and simple, easy ways to go. But the real trick is the balance, and that is what is so difficult to find. It has never been more difficult than today. Now, it is made difficult, more difficult by another phenomenon. We are on all the front lines. We don't know where or when a terrorist is going to strike. We know that some could be American citizens who are here or non-citizens who are here, legally or illegally, but we know that American soil is a new battleground. And that certainly invokes, should invoke new discussion and probably some kinds of changes. So when it comes to FISA, we need to give the Government, I believe, some expanded powers to strike the right balance. For example, it doesn't make sense to handcuff ourselves by requiring that DOJ show that a suspected terrorist is a member of a terrorist group. There may be lone wolves out there. There may be groups that we don't know, and if this person or group of people is acting to promote terrorism, linking them to a known group is not necessary. There may be non-U.S. citizens who we can't prove are part of a known terrorist group, and that shouldn't stop us from getting a warrant. Senator Kyl and I have a bill that would fix that problem. But at the same time, of course, DOJ's powers shouldn't be unfettered. If we blur the line too much between criminal investigations and foreign intelligence gathering, the Fourth Amendment may get tossed out with the bath water. It is about finding the right balance. And one of the reasons that we struggle here particularly to find middle ground is we know so little about the FISA Court. I am a big believer in the Brandeisian admonition that sunlight is the best disinfectant. There is less sunlight on the FISA Court than you would find in most photographers' darkrooms, and that is why this hearing is so critical. We are not going to come to balance until we actually know what is going on. In conclusion, Mr. Chairman, I have been struggling to come up with some way to make the FISA process more open without endangering security. I have spoken with a lot of people about the problem and, frankly, no one yet I have spoken to has any really good ideas. That is why I eagerly await the panel's testimony. Thank you, Mr. Chairman. Chairman Leahy. Thank you. And we will begin with that. Mr. Kris, you have been very patient. You are the Associate Deputy Attorney General. This Committee appreciates both your professionalism and your help in the past, and please feel free to go ahead. STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Kris. Thank you. Mr. Chairman, Senator Hatch, and members of the Committee, thank you for the opportunity to testify this morning about the Government's first appeal to the Foreign Intelligence Surveillance Court of Review. At the request of your staff, I have focused my preparation on three main issues that relate to the appeal: first, and most importantly, a description concretely of exactly what is at stake in the appeal; second, a description of the legal issues that are raised in the appeal; and, third, and finally, a discussion of some of the accuracy concerns that are raised in the opinion of the Foreign Intelligence Surveillance Court, the FISC, from May 17th that have already been adverted to. I know that there are many, many other FISA-related issues in the air today, but I must say that I have not specially prepared to address those issues this morning. At least from where I am sitting, the appeal seems like more than enough to tackle in one hearing. My written statement lays out in more detail---- Chairman Leahy. A lot of the other questions have been sent to the Attorney General. He just has been otherwise preoccupied in being able to answer them, either to me or to the chairman in the House. Let's hope. But we will let you keep within your area of expertise. Mr. Kris. Well, my statement, my written statement which has been submitted, sort of lays out in more detail the points that I would hope to make. Let me try to give a more sort of user-friendly summary here. In fact, before I turn to a discussion of what the PATRIOT Act did change in FISA, because I think there were very important changes, let me start just by quickly reviewing three areas of FISA that were not changed by the USA PATRIOT Act. First, as always, FISA requires advanced judicial approval for almost all electronic surveillances and physical searches. That was not changed by the USA PATRIOT Act. Second, every FISA application must be certified in writing by a high-ranking and politically accountable Executive Branch official, such as the Director of the FBI or the Director of Central Intelligence, and every FISA application must be personally approved in writing either by the Attorney General or the Deputy Attorney General. Again, the USA PATRIOT Act did not change that. And, third, the USA PATRIOT Act did not change the kinds of persons whom we are permitted under FISA to search or surveil. Today, as always, a FISA target must be an agent of a foreign power, as defined by FISA, a term that, when it comes to United States persons--that is, U.S. citizens or permanent resident aliens--requires not only a connection to a foreign government or a foreign terrorist group or other foreign power, but also probable cause that the target is engaged in espionage, terrorism, sabotage, or related activities. Now, to be sure, the USA PATRIOT Act did change the allowable purpose of a FISA search or surveillance, the sort of reasons why FISA may be used. But while the USA PATRIOT Act changed the ``why'' of FISA, I think it is also accurate to say, although perhaps in need of some elaboration, that it did not change the who, what, where, when, or how of FISA. Now, let me turn to the three specific issues that you identified for me, beginning with what is at stake in the appeal. What is at stake here really is the Government's ability effectively to protect this Nation against foreign terrorists and espionage threats. And I don't sort of mean to be melodramatic about it, but the truth is that when we confront one of these threats, whether it be a terrorist or an espionage threat, we have to pursue an integrated, coherent, cohesive response to the threat. We need all of our best people, whether they be law enforcement personnel or intelligence personnel, sitting down together in the same room and discussing, well, what is the best way to neutralize this threat? In some cases, the best way to neutralize or deal with a threat is a criminal prosecution or some other law enforcement approach, and the recent prosecution of Robert Hanssen for espionage is a good example of that. In other cases--and I think even probably in most cases-- law enforcement is not the best way to deal with the threat, and some other approach, such as recruitment as a double agent or something like that, is called for. And, of course, in some cases, you are going to need use both law enforcement and non- law enforcement techniques. What is important, what is critical to us, and what is at stake in this appeal is our ability to sit down and have a rational discussion in any given case about what the best way to deal with the problem is. And let me sort of offer quickly a medical analogy, because I think this is pretty technical stuff not only just legally but operationally. Imagine that a patient walks into a hospital somewhere in the United States--let's just say California--and he is discovered to have cancer, and that cancer represents a threat to his survival. In some cases, the best solution to curing the cancer and saving the patient is surgery to cut the tumor out. And in other cases, it will be some other technique like chemotherapy. And in some cases, it is going to be both surgery and chemotherapy together. But who would go to a hospital in which the surgeons are not permitted to sit down and coordinate and talk to the oncologists and figure out in this case, for this patient, what rationally is the best way to stop the cancer, to cure the cancer and keep him alive? That would be bad medicine, and that, in effect, is exactly what we are litigating against in the context of this appeal. Now, I guess I see that the red light is on, and so I think I may have breached protocol by going over my time. I can continue or I can stop, at your preference. Chairman Leahy. Do you want to get back to the very specific cause? I appreciate your medical analogy, but this is a different case. Mr. Kris. Well, I can talk about the legal issues, which is a little bit more technical, if you would like. Chairman Leahy. Well, we do have your statement. We have it in the record. I think it might be easier if we go to questions with you, but I want to let Professor Banks get a chance to testify first. But let's go with Professor Banks, and then I do have a number of questions. I do want to come back to you, Mr. Kris. [The prepared statement of Mr. Kris appears as a submission for the record.] Chairman Leahy. Professor Banks? STATEMENT OF WILLIAM C. BANKS, PROFESSOR OF LAW, SYRACUSE UNIVERSITY, SYRACUSE, NEW YORK Mr. Banks. Thank you. Good morning, Senator Leahy, Senator Hatch, members of the Judiciary Committee. Thanks very much for inviting me to participate in this morning's hearing. In 1978, the drafters of FISA understood that intelligence gathering and law enforcement would overlap in practice. In the years since 1978, the reality of terrorism and the resulting confluence of intelligence gathering and law enforcement as elements of counterterrorism strategy has strained the FISA- inspired wall between intelligence and law enforcement. In addition, the enactment of dozens of criminal prohibitions on terrorist activities and espionage has added to the context in which surveillance may be simultaneously contemplated for intelligence-gathering and law enforcement purposes. In the weeks after September 11th, the Justice Department pressed for greater authorities to conduct surveillance of would-be terrorists. Officials reasonably maintained that counterterrorism investigations are now expected to be simultaneously concerned with the prevention of terrorist activities and the apprehension of criminal terrorists. Surveillance of such targets for overlapping purposes is of critical national security importance. In the USA PATRIOT Act, Congress agreed to lower the barrier between law enforcement and intelligence gathering in seeking FISA surveillance. Instead of intelligence collection being the primary purpose of surveillance, it must now be a significant purpose of the search or wiretap. The statutory change may not have been necessary. Whatever its wisdom, however, this language does not mean that prosecutors can now run the FISA show. The essential fabric of FISA was left untouched by the USA PATRIOT Act. Its essence remains foreign intelligence collection. Greater information sharing and consultation was permitted between intelligence and law enforcement officials, but law enforcement officials are not permitted under ``significant purpose'' or any other part of FISA to direct or manage intelligence gathering for law enforcement purposes. The concern expressed in the May 17 opinion by the FISC is easy to envision stripping away the technical questions of statutory interpretation. Prosecutors may seek to use FISA to end-run the traditional law enforcement warrant procedures. They gain flexibility that way, but they also become less accountable. The May 17 opinion, signed by all seven judges, is nuanced but firm in its partial repudiation of the proposed 2002 minimization procedures. The Department would effectively permit placement of supervision and control over FISA surveillance in the hands of law enforcement teams. The Department based its proposed revision on the USA PATRIOT Act amendments to FISA, which they say would permit FISA to be used primarily for a law enforcement purpose. As the court noted, portions of the Department's procedures would permit the coordination among intelligence and law enforcement agencies to become subordinated, the former to the latter officials. It is impossible for any academic or, indeed, any outsider to opine intelligently about what goes on in working with FISA. Its proceedings are secret, little reporting is done, and only rarely does any FISA surveillance reach the public eye. We outsiders simply don't know enough to offer a detailed critique of the procedures for implementing FISA pre- or post-USA PATRIOT Act. Our ignorance can be remedied in part by providing more information about the implementation of FISA. Now that some of the guidelines have been disclosed during this dispute, why not assure that all such guidelines are publicly reported, redacted as necessary to protect classified information or sources and methods. The reporting that now occurs is bare bones, limited to simple aggregate numbers of applications each year, with no further detail. Why not report with appropriate breakdowns for electronic surveillance and searches, numbers of targets, numbers of roving wiretaps, how many targets of FISA were prosecuted, how many were U.S. persons? The report should also be available to all of us more often than annually. In addition, among the reforms that the Committee could consider would be a formal role for the FISC in reviewing and approving FISA guidelines. FISC is, of course, an Article III court. The Judiciary Committee is, thus, centrally responsible for its oversight, even if its work concerns intelligence. I will close now and await your questions. Thank you. [The prepared statement of Mr. Banks appears as a submission for the record.] Chairman Leahy. I appreciate that, and obviously, from my earlier comments, there are a number of things I find myself in total agreement with. We have begun the roll call vote. If any Senators wish to go and vote, feel free. But we will hear Mr. Bass and Dr. Halperin, and then I will leave for the vote and come right back and begin the questions. Go ahead, Mr. Bass. STATEMENT OF KENNETH C. BASS, III, SENIOR COUNSEL, STERNE, KESSLER, GOLDSTEIN AND FOX, WASHINGTON, D.C. Mr. Bass. Thank you. Mr. Chairman, members of the Committee, I appreciate the opportunity to testify before you today. I have submitted a lengthy written statement, but I want to address some comments to remarks that the various Senators have made that are not fully addressed in the written testimony. I have the perspective of having been there with Senator Leahy, Senator Hatch, and Senator Specter at the foundation of FISA. I was in the Department of Justice when the legislation was moved through Congress and worked also with Mr. Halperin, of course, in that process. What I want to share with the Committee today is the perspective of the views of someone who was at one time within the tent, was responsible for implementing FISA in the 1978 to 1981 period. And I have tried to stay in touch with the process since returning to private practice as much as possible. As we all know, despite security classifications, there are some leakages around the edge of the tent, and I have been the beneficiary of some of those leakages over the years, so I think I have a relatively informed perspective on what has happened. On the critical issue of the role of FISA with respect to intelligence versus law enforcement, let me confess in the beginning that I am a moderate. I firmly believe that the ``primary purpose'' test, as it developed and evolved in the 1995 procedures and in the wall, was absolutely wrong, fundamentally inconsistent with the basic purpose of FISA, and reflects a careless misreading of cases that had tangentially commented in dicta about the so-called ``primary purpose'' test. My testimony examines that thesis at some length. I won't repeat it here. But the second proposition I think is equally true. The chairman stated that the department's view of FISA post-PATRIOT is that FISA can be used for a surveillance if the ``sole and exclusive purpose is a criminal investigation.'' If that is indeed the Department's position--I am not sure it is, but if that is the Department's position--they are in my view flatly wrong. But they are wrong not because of anything in FISA that deals with purpose. They are wrong because of a misunderstanding of the penumbra of FISA, the context in which it was developed, the Keith decision that laid the constitutional groundwork before FISA was enacted, and, most specifically, the little noticed provision in Section 1823(a)(7). Why do I focus on that? Very simply, because Section 1823(a)(7) requires that the certification which lies at the heart of every FISA application must be made by an Executive Branch official with responsibilities in the area of national security. No one except national security officials can certify FISA applications. To me, intentionally or not, that provision reflects Congress' plain and unambivalent intention that FISA was never to be used for a purely criminal investigation. It was only to be used where there was a national security/foreign affairs aspect to the investigation. At the same time I am equally clear that the balance of criminal versus traditional counterintelligence and intelligence aspects was not a part of the original understanding and should never have crept into the act to create a wall of separation. The inherent nature of counterintelligence, and obviously the inherent nature of terrorism is that they always will share mixed purposes. The plan will sometimes be a roll-up operation. It will sometimes be a dangle. It will sometimes be a false flag operation in the intelligence community. It will sometimes be a prosecution. And you cannot, as I think the Committee unanimously feels, effectively function in today's world with a wall of separation between law enforcement and intelligence. But there is no doubt in my mind that neither the original FISA nor this Committee's action in the PATRIOT Act was intended to provide an alternative to Title III for a purely criminal investigation. That would pervert the entire purpose of FISA and in my view be a very unfaithful service to the Supreme Court's decision in the Keith case when it laid down what the very distinction was between what they call domestic matters and national security matters in a different time, but with many similarities. I would like to just briefly point out that in the prepared remarks I have suggested a number of improvements and changes that I think could be made and comments on some proposed changes that I do not think should be made to the FISA situation, but I could not agree more with Senator Schumer's remark about the Brandeisian element of sunlight. This process has got to be opened up. In my judgment there is absolutely no reason why the FISA Court of Review proceeding yesterday could not have been a public proceeding or at least mostly a public proceeding, and I certainly believe that the proceeding needs to be adversarial. The ex parte nature of both the application process and the appeal yesterday leads to poor judicial decisions, uninformed decisions, and an aura of secrecy that undermines public confidence in the entire process. And I have advocated for years that counsel can be appointed in certain cases to represent the target without any compromise whatsoever for national security. At that point I will cease. Thank you very much. [The prepared statement of Mr. Bass appears as a submission for the record.] Chairman Leahy. Thank you, Mr. Bass, and I know you have taken that position for years. I happen to agree with you. I feel that it is something that will be helpful. I do not care who the administration has--I am thinking of it not only for consistency, but also to make sure the statute is followed the way it should be. Dr. Halperin, please go ahead, sir. STATEMENT OF MORTON H. HALPERIN, DIRECTOR, WASHINGTON OFFICE, OPEN SOCIETY INSTITUTE, WASHINGTON, D.C. Mr. Halperin. Thank you, Mr. Chairman. It is a great pleasure for me to testify again on FISA. As you know, I was deeply involved in the process that led to the enactment of it. I urged the Congress to support it. I still think it is in the national interest and plays a vital role. I do think we need to open up the adversarial process, and I want to associate myself with the comments of the previous witnesses, and particularly the last comments of Ken Bass. As you know, the fundamental starting point to FISA was that there was a requirement to gather national security information, and that this could not be accommodated within the Title III procedures, and therefore we needed different procedures. But these could be made consistent with the Constitution, because the Government's purpose was not to gather evidence of a crime. Congress, of course, recognized that inevitably you would be gathering evidence of a crime and provided procedures to use that evidence, both in national security cases and for common crimes. But as the FISA Court's opinion reminds us forcefully, the due process requirements in FISA are very different, and therefore can be used only where the Government's purpose is a different one. And I think none of the Government's arguments, as members of this Committee have said, can get around that fundamental logic. It cannot be the purpose to gather evidence for the crime and still be constitutional. Now, I agree that 9-11 changed things, and that threats required different balances, but I think the way to deal with that is to focus on the new threat and to limit whatever changes are made in FISA procedures to dealing with international terrorist threats. Because where you have terrorists operating at home and abroad, seeking to kill innocent Americans, the barrier between intelligence and law enforcement makes no sense, and the barrier between gathering information at home or abroad makes no sense. Now, I see nothing in the FISA legislation, either the previous one or the PATRIOT Act, that requires those barriers, but if there is any, I think Congress ought to make it clear that there is nothing that prevents that intimate cooperation up to the limit proposed by the FISA Court. That is, the direction and control of the tap cannot be in the hands of law enforcement officials. I think that is clear from a number of provisions in the statute, including the one that Ken Bass points to. But there can be intimate conversations that can be close cooperation that can be the securing of advice, everything the Justice Department says that it wants, while adhering to the view that the purpose has to be to deal with foreign intelligence purposes. Indeed, my view is that when you are dealing with international terrorism, the primary purpose is, as the Attorney General has said, to prevent further terrorist attacks. You do that by gathering foreign intelligence information about international terrorism and then you use that information in a variety of ways, one of which might be criminal prosecutions. But if you take that approach, you want to break down all the barriers, but make sure that the people in charge are the people who are dealing with this primary purpose of preventing future terrorist attacks. And as I say, it surely should be possible to devise procedures to do that which are consistent with the Court's decision and with the purposes of the statute. I think the same is true of Senator Schumer's proposal. While I have great sympathy with what he wants to do, I think his proposal does not work, first because since he has not changed the definition of either international terrorism or of foreign intelligence information, in fact you do not accomplish your purpose, because the Government would still have to certify that it was gathering international terrorism information, and that includes certifying that it is gathering information of an international terrorist group. I think there are other ways to deal with that problem, either by permitting a warrant until you know which purpose it is, and then moving it in one of two directions in the courts, or by creating a presumption, as the Congress did, about agents of foreign powers engaging in clandestine intelligence, when we had a similar problem with Russian citizens within the United States. And, Senator, I would be pleased to work with you on that. I think this is a problem. I think it can be solved. And I think the solution you have is neither the right one, nor one that works. Now, I would say more generally, Mr. Chairman, I think if you look back at the FISA process, we then arrived at a bill which properly balanced national security and civil liberties, not only because there were extensive hearings, but there were extensive conversations among staffs and Senators with the administration and private citizens who cared about these issues. And at the end of the day, we arrived at solutions that properly balanced national security and civil liberties. That has been lacking since last September 11th. And I think it is time we reverted back to that process, and I think if we do, we can find solutions to Senator Schumer's concerns, to the Justice Department concerns about being able to have all the people in the room and get all their advice, but do so in way that remains faithful to the fundamental principles of FISA and of the Constitution. Thank you. [The prepared statement of Mr. Halperin appears as a submission for the record.] Chairman Leahy. What I want to do, I want to go and vote. Senator Grassley has voted. As an accommodation to him, I suggest he begin questions. Do not forget to turn your microphone on. Also, in accommodation to the panel, which has been very patient, when his questions are finished, if I am not back, we will then stand in recess until I get back. I should be here shortly. Thank you. STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you very much, and I do not think I will take all the time allotted. I am going to ask Mr. Kris to listen to some preliminary comments I have leading up to four questions I would like to ask him. This Committee, during the course of its oversight hearings and investigative briefings and interviews, has learned that there exists a wide variety of interpretations of key provisions of the FISA statute among critical personnel at the Department of Justice. We have found, for instance, that FBI agents and attorneys on the one hand, Department of Justice attorneys and their managers on the other, all have different and sometimes conflicting definitions of what are key elements of the law. These very people are occupying positions in their organizations that are crucial to the success of the Foreign Surveillance Intelligence Act as a meaningful tool in America's war against terrorism. Those people charged with moving FISA applications forward from FBI investigative units through the Department of Justice, it seems to me must have a uniform and correct idea of what it takes to meet the statutory minimums required. So I would like to ask four questions before you answer any, so you kind of see them in a context. First, what oversight, review, training or inspection procedures has the Department of Justice put in place to guarantee that employees administering the FISA application process are doing so correctly, and effectively? Secondly, when did the Department of Justice put these procedures in place? Thirdly, has the Department of Justice arrived at a consensus definition of probable cause as it now applies to FISA applications and shared that definition with all the agents and attorneys involved in the FISA process? And lastly, what other reforms to the FISA process has the Department of Justice proposed or implemented under the direction of Attorney General Ashcroft that will prevent the abuses of the prior administration from occurring again? And in regard to the prior administration, I am thinking about the opinion that referred to 75 violations, 74 under the previous administration, 1 that presumably was admitted to under this administration. Mr. Kris. Right. Okay. I think I can answer sort of those questions together. There have been a number of unclassified Department of Justice or FBI guidelines issued addressing any number of FISA issues and procedures. Many of those were provided to the Committee in connection with our appeal. I am thinking of the July 1995 procedures, the April 6, 2001 Woods Procedures governing accuracy--and I will actually return to focus on that in a moment in response to your fourth question-- the Attorney General's memorandum of May 18th, 2001 on the FISA process, the memorandum from the Deputy Attorney General on August 6th, 2001 on the FISA process, and in particular on coordination between intelligence and law enforcement officials, the March 6, 2002 procedures, which are at issue in the appeal which the Attorney General approved, but we obviously were not able to implement in full because of the litigation. There is also a memorandum concerning file review in terrorism cases. There are also many classified guidelines that I should not talk about here, but that have been at least averted to with the intelligence Committees. So there is actually quite a lot of internal guidance that has been issued over the years. With respect particularly to the probably cause question that you raised, I know that there is in the process right now some FBI guidance on that. I looked at a draft of that recently--I cannot say exactly when--and actually gave some comments on it. I expect that it will be coming out fairly soon. I think one of the things that was clear to me in looking at that document is that abstract and general statements about probable cause are not always very helpful and indeed is in my view the central holding of Illinois v. Gates, that it is a practical common sense conception and so one of my comments was we need to have some examples of particular cases in this guidance where there were facts asserted, and the Court then found yes or no probable cause, so there is that document with respect to that issue that is in the works. And finally, on the question of accuracy, which I did not cover in my opening--it is in my written statement, but let me say some words about that because I think it is very important--there were two groups of unrelated FISA cases. The first group arose in the summer of 2000 and the second group in March of 2001, in which there were inaccurate statements made in FISA applications, and that is discussed in the FISC's May 17th opinion. We basically adopted both a short term and a long term response to those accuracy problems, and let me try quickly to lay out what those responses were, and I will get at the end to the most important point, which is what procedures we now have in place, in direct answer to your question. In the short term, of course, the first thing we did was correct the mistakes with the FISC, with the FISA Court. Indeed that is how the Court learned of the mistakes, because we informed the Court. We also contemporaneously informed Congress of the problems that had arisen, and that is in keeping with our statutory obligation to keep both the Senate Intelligence Committee and the House Intelligence Committee fully informed about our use of FISA. Third, we opened an internal OPR investigation. That is OPR, Office of Professional Responsibility, not to be confused with OIPR, the Office of Intelligence Policy and Review, which is the office that represents the Department in front of the FISA Court. And that OPR investigation is still pending. It is mentioned in the FISA Court opinion. In keeping with normal DOJ policy, I will not comment on that investigation except to acknowledge its existence. For the long run--those are the three short run--correct the record in the Court, inform Congress, and open an internal investigation. Senator Grassley. This is in answer to my fourth question? Mr. Kris. Yes. Yes, sir. And then the most important thing that I think we did for the long run was in April of 2001, the FBI adopted these so-called Woods Procedures, named after the attorney who is their principal architect, and they were provided to the Court, also provided to the Committee by Director Mueller, I believe in connection with his June 6th testimony of this year. Those procedures are complex and they are quite detailed. The Committee has them. I will not go through sort of a technical rundown of the entire thing, but the critical aspect of the Woods Procedures is that they require FBI field agents, who are actually engaged in these counterintelligence investigations, to review and approve for accuracy the FISA application, which purports to describe those investigations to the Court. And that is a critical improvement, and I think it actually has been helpful in improving accuracy. And Senator Hatch earlier quoted from the speech that Judge Lamberth gave in April of this year, a year after those procedures were adopted, in which he made some very complimentary statements about the way things were going. The reason that this coordination and that the procedures are so vital is that a counterintelligence investigation is fundamentally unlike most criminal investigations. A criminal investigation is typically local or at most regional in scope. Somebody robs a bank in Boston, Massachusetts, the FBI in Boston will investigate. The U.S. Attorney's Office in Boston will be involved. The Court, if there is going to be a wiretap, would be in Boston, and everybody is right there. In a FISA case, in a counterintelligence investigation, we are talking by definition about cases that are both national and international in scope because the adversary is an agent of a foreign power or a foreign power, and they target this country as a whole. So you may have related investigative activity occurring simultaneously in Portland, Oregon, Los Angeles, California, Denver, Colorado, Miami, Florida and so forth, and they are all part of a larger investigation of a particular foreign power and its efforts to target us in some way. The FISA application, in any FISA that relates to that investigation, is of course filed here in Washington, D.C., because that is where the FISC is located, that is where the Attorney General is located, that is where the Director is located and that is where OIPR is located. And the affiant in a FISA application is a Headquarters agent, because that is the agent who is overseeing and coordinating the overall investigation because these investigations need that coordination, but the problem is, he is not, this Headquarters agent, actually at ground level out in the field and actually doing the investigation. He is one step removed. And no individual field agent knows absolutely everything about up to the minute of what the others are doing, and that is where inaccuracies can creep in, when the Headquarters agent talks about what happens in the investigation that is being conducted by others, and the Woods Procedures then are designed to deal with that problem by requiring coordination and sign-off by the actual field agents with respect to the affidavit being filed in the FISC in Washington. So that is the key innovation, I think, of the Woods Procedures. The May 18th memo of the Attorney General from 2001 goes further in the same direction by requiring additional coordination by OIPR and the field. That is a long answer, but I hope a---- Senator Grassley. Well, as a way of summary and not for further discussion of this issue, but just so I think you are saying in answers to my first, second and fourth questions, that you have procedures in place covering oversight, review, training and inspection, and that this administration has put in place further procedures to prevent abuses from occurring again. But am I right in saying then that we are still in the process of--if that is accurate, then additionally then we still have hanging in the balance here, an understanding throughout all of the Department of Justice as well as FBI, of what probable cause is. That is not settled yet from the standpoint of its application to the FISA process. Mr. Kris. Well, I think there is--I mean the consciousness has certainly been raised. I think there is a common understanding. The procedures, as far as I know, have not yet gone out on that though, so that is right. Senator Grassley. Okay. Not the definition of probable cause, but the procedures to follow in regard to what is probable cause. Mr. Kris. That is right, yes, sir. Senator Grassley. Then my last point would be putting the legal issues to the side, but I would like to ask about how the Department of Justice plans will affect FISA investigations. Prosecutors and criminal investigators certainly have a place in FISA investigations, and I believe prosecution is one way and sometimes a good way to disrupt and stop terrorist attacks. But we have to recognize that these are intelligence operations first and foremost, and decisions should be made based on national security and intelligence concerns. The Justice Department wields an enormous amount of influence over the FBI and individual investigations. So I want to say what I worry about down the road is that some prosecutors who do not have experience dealing with terrorists and spies may be tempted to order an arrest for reasons other than national security. That prosecutor may, for instance, want a convicted terrorist on his record, even though it is smarter to watch the suspect and learn about his plans and conspirators. The intelligence agencies on the case may still be looking for other terrorists in the cells, but they get overruled by the prosecutor. I know that if there is disagreement, the dispute can go through a chain of command, but FBI agents know that prosecutors decide what FBI cases to prosecute or decline day in and day out, and they may be hesitant to protest a bad decision. What you have described as advice for prosecutors to intelligence agency agents could end up being direct orders. I have no problem with FISA information being used in a prosecution as long as all rules are followed. I am worried that prosecution is not always the best decision in terms of national security. So, first, is the intention of the March regulations to have prosecutors be in charge of FISA investigations, and who do you think should run those investigations? And second and lastly, what assurance can you give the Committee that prosecutors will not end up running these cases and how will we be able to verify that through our oversight? Mr. Kris. I think that is actually a very fair question. I mean one of the main limits on--well, let me say first, I completely agree with the premise of your question, which is that in some cases prosecution is a good way to protect, and in other cases it is a very bad way and then you can mess it up. And there are costs associated with the prosecution of somebody using FISA information. Chief among them, you have to reveal publicly the fact that there has been FISA surveillance, and that if there are others out there who are not being prosecuted, they are then alerted to the fact that the Government is on to the conspiracy or whatever, and that can obviously be very, very damaging, and there are also other concerns that arise when you prosecute an intelligence case involving protection of source and method information, and a variety of other concerns. And just as a tactical matter, sometimes prosecution is not the right way to go. Other times you just want to monitor these people or do something else. You try to recruit one of them as a double agent. You feed them false information. You disrupt them using some other technique. In some cases you do want to prosecute. Under FISA already there is a protection against a line attorney, line prosecutor somewhere going off and deciding that he is in charge and he is going to bring this case to trial, and that is because the statute already provides that before information can be used in a law enforcement proceeding, the Attorney General has to approve that use. That has been in the statute since 1978, and that is only one part of a sort of a general centralized control that exists in these cases. So before some renegade AUSA, if that is what you are talking about, could sort of return an indictment, he would have the get approval from the Attorney General. So there is a centralized mechanism in the statute I think that deals with that. Senator Grassley. Thank you very much. I should probably let Senator Feingold decide what he wants to do, but I was told when I was done that we could stand at ease if nobody else was here. So I thank you very much, and I thank the Chairman for allowing me to question during the time that the vote was going on. Thank you all very much. Senator Feingold. [Presiding] Thank you very much, Senator Grassley, and I will begin my round of questions at this point, and I appreciate of course the panel being here today. Let me first ask Dr. Halperin and Professor Banks and Mr. Bass. It seems to me that Congress was not as clear as perhaps it could have been or needed to be when the new FISA rules were rapidly drafted and then passed after September 11th as part of the PATRIOT Act. So my question is, should Congress essentially try again, and codify the FISA Court's May 17th decision? Mr. Halperin? Mr. Halperin. Well, I think if that can be done effectively and efficiently without opening up a great many other issues, I think that might be the way to go. I think a little bit depends on whether the Appeals Court and ultimately the Supreme Court, if the Government goes there, upholds the FISA Court's decision. If it does, then it seems to me that the solution to the problem is simply to make it clear to the Government that nothing in the FISA statute and nothing in the Constitution prevents the kind of consultation that the Justice Department witness talked about of getting everybody in the room who is knowledgeable and getting their advice as long as the control of the FISA investigation is in the hands of intelligence officials who are using it for the foreign intelligence purpose of preventing further terrorist attacks. I do not think there is any reason, if that is done, to change the statute. If the Government prevails on its appeal and therefore is in a position to use FISA to run a criminal investigation, then I think the Congress does need to act and act consistent with what every member of the Committee who has spoken has said you intended to do. And I think, frankly, the way to do that is to legislate the ``primary purpose'' standard, which of course was not in the statute--it was brought in by the courts--accompanied by clear legislative findings that that does not in any way prevent the full cooperation of law enforcement and intelligence in dealing with the problem. I think it is clear that that is what Congress thought it had done. If the Court accepts the Government's view that you did something much more radical, and in my view, unconstitutional, then I think you should fix it, and I think the legislative fix is pretty clear. Senator Feingold. I appreciate that answer, Dr. Halperin. Mr. Bass? Mr. Bass. Senator Feingold, first let me say that I do not think the pending case is the right vehicle for answering the questions that are really the focus of the Committee's concern. I have indicated in my remarks that are more extensive, that one thing that is wrong with the case is it is unilateral, it is ex parte, there is no adversary on the other side, and it is secret, but more importantly, as the FISA Court pointed out, they did not rule on when it was proper to come to the Court for a FISA surveillance. They only ruled on an aspect of approving minimization procedures, which only apply in cases of U.S. persons to begin with. And jurisprudentially, the issue in the case and the issue on appeal is far too narrow to address the issues of concern to this Committee. In response to the first part of your question, yes, if Congress could act, it should, but if Congress were to act as it did in the PATRIOT Act, I am frank to say, no, please do not do that again. Senator Feingold. Well, you know I agree with that. Mr. Bass. That Act was so hastily prepared, and at least as far as I know, nobody ever knew what it did in many of its provisions because of its haste. The legislative history is too sparse. And to cram congressional intent into a change from ``the purpose'' to ``a significant purpose'' to deal with all these questions we are dealing with today is intellectually impossible. So if you are going to do it, do it right, and come up with something that is not the product of the usual sort of political compromise, but in fact gives clear guidance as to when you transition from a FISA surveillance to a Title III surveillance. I am cynically suspicious that that cannot be done very easily, and certainly cannot be done in today's climate. But I am also equally convinced that the courts will make a mess of it if they continue to proceed the way this process has proceeded to date, and that is with these secret unilateral proceedings in which the FISA judges talk to the Executive Branch both in court proceedings and in nonproceeding meetings, but they refuse to talk to Congress, and that cannot be the way to run the ship. Senator Feingold. I thank you for that answer. Professor Banks. Mr. Banks. Senator Feingold, I agree with Mr. Halperin and Mr. Bass, and Mr. Bass in particular about the inappropriateness of using this case as a vehicle for restating what FISA is about. I do have mixed feelings about the ``significant purpose'' standard, but I doubt that it would be wise at this time to revisit that question. I think the ``significant purpose'' rule is not as good a rule as was in place before, but I think it only lowered the barrier somewhat for reviewing courts in trying to sort out the relative role of law enforcement and intelligence in a joint or some kind of parallel investigation. I think if Congress wished to be more clear about the limits that were imposed in the PATRIOT Act on the information sharing and consultation, that it is in that provision that some attention should be paid. I think that we have all sort of danced around the difference this morning between consultation and information sharing on the one hand and direction and control on the other. That is where the cleavage appears to exist, and if there is some legislative attention, I would devote it there. Senator Feingold. Thank you for that answer, Professor. Mr. Kris, the Justice Department claims that a broad interpretation of FISA is necessary to protect our country from terrorism. Yet this Committee has not heard an example of how more appropriate and narrow a construction of FISA, like the one proposed by the FISA Court would actually impair our national security. Could you please tell us what hurdles a reasonable construction of FISA would place in front of our desire for safety, and if the Justice Department prevails in their appeal, what role the established intelligence community will have in FISA matters when the primary purpose of using FISA is law enforcement? Mr. Kris. Yes, I think I can do that even in this open forum, although perhaps not with any real case examples for you. Let me focus on just one aspect of the FISA Court's opinion that I think is troubling in a--in a relatively clear way. In addition to accepting our information sharing provisions and rejecting in part our advice giving provisions, the Court imposed a third element in the coordination process, requiring what I have called, and what are brief refers to as a ``chaperone requirement.'' The essence of that requirement is that before intelligence officials can talk to or engage in a consultation with a prosecutor, they must first notify OIPR, the Office of Intelligence Policy and Review, which is located in Washington, schedule the consultation and invite OIPR to attend or participate if it is by telephone or in person. And for its part, OIPR is required by the Court's order to participate in the consultation unless it is unable to do so. And, obviously, I mean that really means unable because OIPR has to stand up in front of that court on a daily basis, and it cannot sort of start playing ``cutesie'' when it is unavailable. Well, I think the impact of that should be clear for anybody who has experienced running sort of a complex criminal investigation. The agents and the lawyers are talking to each other, and should be talking to each other, all the time, by phone or in person, many, many, many times a day, because something occurs to you, you call up the agent, you say, ``Oh, you have got to look into this.'' The agent calls you back, ``Oh, here is what I found.'' And there is a very dynamic process that ought to be going forward, especially in these very, very sensitive investigations. If every time a prosecutor wants to talk to an intelligence agent about a case, he has to call OIPR, and if he wants to meet in person he has to wait for OIPR to send a lawyer to fly out there. And as I said, OIPR is in Washington. The FISC is in Washington. These investigations are going on all over the place. I mean I guess I would say it is very unworkable to have to wait for an in-person meeting for somebody to fly out. And what that means is that really in effect it is very difficult to have the coordination that is necessary. Senator Feingold. Mr. Bass? Mr. Bass. Senator, if I could be so bold as to say I am shocked at the Department's position with respect to the role of OIPR. This is 2002. If the Department does not yet have in place secure, contemporaneous communication facilities for voice or e-mail, then it is light years behind my law firm, and that is abysmal. They have presented no justification for objecting to the, quote, ``chaperon provision'' except administrative inconvenience. I cannot believe that that actually is a problem. And if it is, it is one to be solved by allocation of resources. OIPR provides an important role, in my view, in performing a contemporaneous oversight function in a very difficult area that no other institution of Government can provide. And to me the biggest problem with the AG's proposal is taking OIPR out of the loop and allowing criminal prosecutors and intelligence agents to communicate directly without a third party being there. Call it pejoratively a chaperone, if you will. I call it a protector of liberty. Senator Feingold. Dr. Halperin, and then I will give my time---- Mr. Halperin. Senator, what troubles me most about this is the judges on those courts, we all know many of them have experience inside the Executive Branch. None of them are people who are insensitive to the requirements of law enforcement and national security, and that they felt obliged to impose that kind of specific requirement on the Justice Department, suggests to me a level of concern not to say mistrust of what the process would be like that I find deeply troubling. So I think it is very important for this Committee, in its oversight role, to try to get to understand what it is that led the Court to decide that that was the only way it could be confident that the rules it was laying out were being enforced. On the face of it, it seems extraordinary that the judges would have the right to do that, and as the Government points out, it is hard to see in FISA where they get that authority, but it comes from their right as overseers of this process to say what they have said in effect, ``We do not have any confidence in this unless that happens,'' and I think that has got to be fixed, whether by implementing this requirement or in some other way. Senator Feingold. I thank you all. This is an excellent panel. I thank you, Mr. Chairman. Chairman Leahy. I thank you. Senator Hatch, and then I will take my questions. Senator Hatch. Mr. Kris, after having listened to your colleagues here, do you have any additional comments you would care to make? Mr. Kris. Well, I mean I guess I agree with Dr. Halperin that I do find it difficult to find anywhere in the FISA statute or in Article III, authority for a Court to impose that kind of close management of Executive Branch functions, and to dictate who must be in the room when a consultation is going on. I think I am inclined to agree with him that it is really not supportable, and indeed that is our position on appeal. I must say I disagree with Mr. Bass about the practical limitations that such a requirement poses. Even if one can do secure conference calls, which the technology--well, I should not get into that. But even if one can do that, there is really no substitute for an in-person meeting, and a free and dynamic exchange of ideas, which is not to say that OIPR should not be there or that the intelligence lawyer's perspective is not valuable. But it is one thing to say as a matter of Executive Branch management for the Attorney General to say, ``well, it is a good idea, though not a ironclad requirement for OIPR to be there.'' It is another thing for a Court to say that they must be there before you can have a meeting, and I think that is the central legal argument anyway that we are raising. Senator Hatch. Let me focus your attention on one particular argument the Government has made on appeal. Specifically you argue that the primary purpose of FISA surveillance may be law enforcement as long as ``significant,'' foreign intelligence purpose is also present. Now, what evidence do you have that Congress understood that possibility when it enacted the ``significant purpose'' amendment in Section 218 of the PATRIOT Act? Was there any discussion of the FISA surveillance being used primarily for law enforcement purpose and only secondarily for foreign intelligence purposes? Maybe I will go a little bit further. As you can tell, I am asking a question that I know the answer to, but I want you to answer it anyway. In fact, several Senators made specific comments during the PATRIOT Act debate, indicating their understanding that this specific change would increase criminal use of FISA. And let me just cite with particularity. A statement by senator Feingold. Quote: ``The Government now will only have to show that intelligence is a 'significant purpose' of the investigation. So even if the primary purpose is a criminal investigation, the heightened protections of the Fourth Amendment will not apply.'' Mr. Kris. That is correct. Senator Hatch. Senator Wellstone said, quote: ``The bill broadens the Foreign Intelligence Surveillance Act, FISA, by extending FISA surveillance authority to criminal investigations, even when the primary purpose is not intelligence gathering.'' That was on the floor on October 25th, both of them on October 25th. On October 11th Senator Cantwell said, ``Although the language has been improved from the administration's original proposal, now it would require that a significant rather than simply a purpose of the wiretap must be the gathering of foreign intelligence. The possibility remains that the primary purpose of the wiretap would be a criminal investigation without the safeguards of Title III wiretap law and the protections under the Fourth Amendment that those will fill. I would like to ask the Chairman of the Judiciary Committee whether he interprets this language in the same way.'' Senator Leahy said, ``Yes, the Senator from Washington is correct. While improved, the USA PATRIOT Act would make it easier for the FBI to use a FISA wiretap to obtain information, where the Government's most important motivation for the wiretap is for use in a criminal prosecution.'' Well, you know, I do not think there is any question that that is what we intended to do, but give us your take on it. Mr. Kris. Well, I mean, I agree with you, Senator Hatch, and those citations to those statements are collected in our brief. I guess I would also say for the Department's part, that on October 1st of 2001 we sent a rather long letter to Congress, and to both the Chairmen and ranking members of the House and Senate Intelligence and Judiciary Committees, describing and defending the ``significant purpose'' amendment that we had proposed. And that letter said, and I will quote from that, quote, ``The Courts should not deny the President the authority to conduct intelligence searches even when the national security purpose is secondary to criminal prosecution.'' So I do think that--I mean we have in our brief, and I do rely on this evidence to say that not only is that the inevitable consequence of the plain language of the provision, which I think it is as a simple matter of grammar, but also that at least some members of Congress and the Department, in presenting the amendment, understood that that was what was at stake whether they supported it or not. Senator Hatch. The Chairman has been kind enough to allow me to ask one more question. Mr. Kris, in your written testimony you outline the Government's argument that with the modifications of the PATRIOT Act, and specifically Sections 218 and 504, FISA may now be used primarily to obtain evidence for a prosecution of foreign terrorists or spies. Now, in support of that position, you suggest that criminal prosecution is a ``lawful'' means to protect our country from spies and foreign terrorists. And would you elaborate on this argument, citing the specific provisions in the PATRIOT Act relating to the definition of ``foreign intelligence information'' in the FISA statute, and explain how criminal prosecution is one of the several legitimate means to protect our country from foreign spies and terrorist attack. Mr. Kris. Sure. Senator Hatch. You made that point earlier, but I would like you to elaborate on it. Mr. Kris. Yes, sir. FISA, as enacted in 1978 said that the Executive Branch must certify, and in the case of a U.S. person, the Court must find that the certification is not clearly erroneous, that the purpose of the search of surveillance is to obtain this category of information known as foreign intelligence information, and ``the purpose'' was read as the primary purpose and then later changed to a ``significant purpose.'' But what your question goes to is exactly what is this thing that we are having some purpose to obtain? What is foreign intelligence information? Well, it is defined in 50 U.S.C. 1801 (e)(1), to include information that is necessary to the ability of the United States to protect against a list of specified foreign threats to national security, including both espionage and international terrorism. The basic thrust of our argument on appeal is that information can be used to protect against these threats in a variety of different ways. There are diplomatic methods that can be used. There are military, paramilitary, economic sanctions, intelligence methods, and there is also law enforcement methods. It is back to that analogy, you can do chemotherapy to stop cancer, or you can do surgery to stop cancer, and there are a lot of different ways to go about it. Sometimes prosecution is the good way. Sometimes it is not. But there is nothing in that definition in 1801(e)(1) that discriminates between law enforcement methods of protecting against these threats and other methods of doing so. The only thing that FISA says about the use of information is that it be lawful. And that would mean, for example, you could not use the information say for some unlawful blackmail or for some other thing that would be unlawful. Prosecution is actually a lawful thing to do. And that really is the center of our argument on appeal,and it is based not only, as I say, on the plain language of the 1978 version of FISA, but also on Section 504 of the USA PATRIOT Act which is now codified at 50 U.S.C. 1806(k) and 1825(k) for physical searches, which in our view reaffirms this original idea that foreign intelligence information includes information that will be needed to protect regardless of the method, law enforcement or otherwise, that is used to achieve that protection. Senator Hatch. Thank you so much. Chairman Leahy. Mr. Kris, you keep using the analogy of treating a cancer patient. I have a feeling you are probably a far better lawyer than you are a doctor. Mr. Kris. That is probably correct. Chairman Leahy. And another way you could use the analogy in making the kind of choices the Department of Justice would want it to be, would be that the cancer patient were told, ``Well, you have a choice of going to this team of oncologists at Johns Hopkins or to the law firm of Smith, Smith and Smith.'' I mean, frankly, that is about what is happening, because what you have done, you have had to stretch the language of the FISA statute to reach a position that criminal prosecution is a type of foreign intelligence purpose. Congress never intended criminal prosecutors to be able to choose to use FISA as their first choice. In your written testimony, you cite a single sentence from a lengthy letter that the Department wrote during consideration of the USA PATRIOT Act in the Senate. The one sentence you quote is in the section discussing Court-imposed constitutional limits in FISA. What you did not cite in your testimony today was a section of the same letter in which DOJ addressed a meeting of the new proposed statutory language which says, ``In light of this case law and FISA statutory structure, we do not believe that an amendment of FISA for 'the purpose' to 'a significant purpose' would be unconstitutional as long as the Government has a legitimate objective in obtaining foreign intelligence information. It should not matter whether it also has collateral interest in obtaining information for a criminal prosecution. As courts have observed, the criminal law interest of the government did not taint a FISA search when its foreign intelligence objective is primary.'' Now, how do you square that with the view you have advocated that the amendment was intended to allow the use of FISA for cases where the criminal interest was not collateral but primary? Mr. Kris. Well, as I understand what you just read, it is a description of the primary purpose case law, which such as it was, certainly did hold or at least indicated--the case law is somewhat more ambiguous than maybe I am saying--but in any event, assume that it did indicate, if it did not hold, that the primary purpose must be something other than law enforcement. I think that is, for example, the holding of the Troung decision from 1980 in the Fourth Circuit. But the idea was actually to change that, and--so I think the one part of the letter is describing the law and the other is describing what the amendment would do to the law, and I think really it is quite inevitable as just a matter of common English. Chairman Leahy. Is this a new argument for the Department of Justice? Mr. Kris. No, it is an old argument, Senator. I mean it is in our brief. Chairman Leahy. But has it been advanced before in the courts? Mr. Kris. Oh. No. In that respect, yes, it is a new argument. This is not an argument---- Chairman Leahy. Is this saying that for 20 years the courts have been deciding these things wrongly? Mr. Kris. Well, in effect, yes, it is saying that. I mean, I think as I said, you can quibble and reasonable minds can differ about exactly to what extent the courts actually held this rather than just assuming it, and there is not that much published case law here. Chairman Leahy. Well, we have a hard time finding much published because probably Justice does not want to answer our questions. I read in CQ, I think it was today, that the Republicans for the House Judiciary Committee wants to start subpoenaing these answers. If the Department is correct, if criminal investigators and prosecutors may actually direct or control a FISA wiretap, does that mean that the information sharing consultation provisions that we wrote into the USA PATRIOT Act that are directed at intelligence officials are sort of moot or superfluous? Mr. Kris. I am not sure I follow your question. I mean---- Chairman Leahy. Well, you cannot share with yourself. See, this is what I do not understand. I mean basically what you are trying to do is change 20 years of a way of doing things. Mr. Kris. Yes. Chairman Leahy. And we find from the courts that some of the mistakes made by the Department of Justice coming before them, I guess even to the extent that one person was probably Justice has been banned from the courts. Are you trying a new interpretation to cover your mistakes, or a new interpretation because you think that is what the law is? Senator Hatch. The law has changed. Mr. Kris. Well, yes. I mean---- Chairman Leahy. Well, that is why I am asking the question. Mr. Kris. Senator Leahy, I do think we are trying to change, and I think we are pretty overt about it, 20 plus years of practice, and I do think that is what the PATRIOT Act represented, was a paradigm shift in this area. And you have cited---- Chairman Leahy. Then you would say the court is wrong in a unanimous opinion when they say the Attorney General's proposed procedures for the FISA, quote, ``appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances and Rule 41 searches. This may be because the Government is unable to meet the substantive requirements of these law enforcement tools or because the administrative burdens are too onerous. In either case these procedures cannot be used by Government to amend the Act in ways Congress has not.'' You disagree with the court? Mr. Kris. Yes, I disagree. Chairman Leahy. You disagree with the unanimous opinion of the court? Mr. Kris. Yes. I mean we disagree respectfully, and we have a lot of respect for that Court, but I mean that is what it means when you--I mean we are appealing because we think they got it wrong. Chairman Leahy. I have argued a few appeals myself. I understand what appeals are. Thank you. Although I have never been in a case where I could argue the appeal in secret and be the only person appealing even when I represented the Government, I was never able to argue in a secret hearing before a court that meets in secret and where the other side cannot be heard. From a government attorney's point of view, it must be a lot of fun. [Laughter.] Mr. Kris. That is not the word I would use to describe the process, and I have--I want to apologize. I did not mean to be--I know that you have law enforcement experience as a prosecutor, and I do not mean to be disrespectful. Chairman Leahy. No, and you were not, Mr. Kris. Mr. Kris. I mean we do disagree with the Court and we are-- we will see what happens in the appeal. If we are right on the law, then I guess the Court will tell us, and if we are wrong on the law, then I am sure the Court will tell us that too, and we will have to see. Chairman Leahy. Well, if the Justice Department is now wanting to use FISA as a tool in matters brought primarily for law enforcement purposes, should we consider importing some of the procedural protections applied at criminal wiretaps to FISA wiretaps? Mr. Kris. Actually, that issue did come up in one of the briefings I did for the staff. I think that we would be prepared to discuss some other reforms in FISA. I think some of the requirements at least that existed on the Title III side are not a good fit for FISA. There may be some things that we can do. I guess what I would say is an intelligent discussion of additional changes in this area I think ought to await the implementation of--well, first the decision of the Court of Review. We will have to see. We may be all mooted out by a decision that affirms, in which case none of this will be in play. If we prevail in the appeal, then I think there will be a period of the mandate going to the FISC and the FISC and us interpreting the Court of Review's decision, and then a period of education of our people because if our arguments are accepted, it is a big change. And we are certainly not hiding from that. It would be a big change, but that is going to take some time to get the word out and educate our line attorneys and agents. And then I think what you will see is as that happens, cases developing in a different way, and one might see public prosecutions that occur using FISA under a different pattern. And I think it would be useful to see what happens in that respect. Chairman Leahy. Let me ask this last question, and I ask it of the whole panel. We were talking about development of the secret body of laws without public scrutiny, and that is very unusual, not only in our democracy but any democracy. The Department is urging broader use of the FISA in criminal cases. And you are going to lose, ultimately lose public confidence both in the Department and in the courts, unless you can, by public reporting or otherwise show this is being used appropriately. Right at the moment, as we worry about terrorist attacks, there is a certain amount of freedom given you, but people are beginning to worry more and more from across the political spectrum. So, do you see any problem with public reporting of the number of times FISA is used on U.S. persons, the legal reasoning used by the FISA Court, or the number of times FISA information is used in criminal cases? I ask that question because the answer and what happens is certainly going to reflect the debate which is coming up actually, in congressional terms, fairly soon, about whether we sunset all these provisions. So what would you say, Mr. Kris? Then we will go to the other members. Mr. Kris. Yes. I mean they do sunset at the end of 2005. We are very acutely aware of that. I think that part of what you said might be possible, part I think is not a good idea. Chairman Leahy. Tell me what part is possible and what part is not. Mr. Kris. I think, for example, disclosure of the number of ``U.S. person'' cases involving FISA to the public could pose some operational risks for us. I do not want to--not in this hearing anyway--get into them. We do report that kind of data and more to the intelligence Committees on a twice-annual basis, and it is quite an extensive written document that is produced to them, and I know that--well, there are members of this Committee that are also on the other Committee, so they know what I am talking about. I worry about disclosure of certain operational information that might be useful to the adversaries in avoiding coverage. We do not want to give them too much of a road map of how we go about doing this. Chairman Leahy. How about reporting the number of times that FISA information is used in criminal cases? I would assume these criminal cases are open and public. Mr. Kris. Yes. Indeed we already report, under a relatively recent amendment to FISA, we already report exactly that information to the intelligence Committees. Chairman Leahy. You do a classified report about what was done in an open public court. I am asking what do you think about reporting the number of times this information is used in criminal cases, assuming those criminal cases have been in an open court with the press and everybody else available? Mr. Kris. Well, I will say that I agree with you that the information that reveals the use of FISA in a criminal trial is public. The trial is public and notice is given to the target or any aggrieved person against whom the information is used. So at that point you are not hiding the fact any longer of the existence of a FISA. And I will--I am not authorized to commit the Department, obviously, but I will take it back and we will, I think, look forward to working with you as the--I mean we will be---- Chairman Leahy. But I might not be following what happened in the Western District of Pennsylvania or the Southern District of New York on all these hundreds of cases, but you certainly have to know. And it has been publicly disclosed, and it would be interesting to know, because obviously, if you have a huge increase in the number of criminal cases that turn out to be things like mail fraud and so on, then we might want to know. And we all want to think that our priorities are counterintelligence and protecting us, but we also now that investigations go on in such things as, as was brought out in one of these hearings: the amazing discovery by the Department of Justice that there were some prostitutes in New Orleans, something that nobody ever would have known about if they had not done that. [Laughter.] Chairman Leahy. Professor Banks. Mr. Banks. As you said, Senator, the secrecy in the process is ultimately corrosive, and anything that the Department and the Congress can do to reduce the amount of secrecy that attends a necessarily secret process is a good idea. I think your two specific suggestions are good ones. I do understand the operational sensitivity of a ``U.S. persons'' disclosure, and perhaps there is a middle ground there. I made several other specific suggestions in my written remarks about oversight mechanisms that could open up the process to some degree. Chairman Leahy. Thank you. Mr. Bass? Mr. Bass. Senator, the specific proposals would only enhance national security if they were enacted. The only legitimate security concern about disclosing publicly the number of U.S. persons was theoretically in the early years when that number may have been two that we would disclose, having prosecuted two, people that we weren't targeting. I can't believe the number is that small in the present circumstances, but at the same time I am absolutely confident that the number of U.S.-person-targeted surveillances in the FISA environment is so small compared to the total volume that the United States public and this Committee could only feel more comfortable about our national security, which for me includes liberty as well as counter-intelligence and counter- terrorism, if that number were publicly known. If I could briefly comment, though, on one point about the statement that was made about the Department understanding the PATRIOT Act as trying to reverse 20 years of judicial history, that is not the way I viewed what the Congress did. I won't elaborate on it because it is in my prepared testimony, but in the early days the original understanding of the Act did not include a primary purpose test and did not include a wall. The primary purpose test and the wall developed largely in 1995 as a result of things this Committee knows better than I do, but can certainly find out about. I read the PATRIOT Act as saying tear down the wall. I read the PATRIOT Act as saying go back to the original understanding, not to go beyond the original understanding and to transform FISA into an alternative Title III, which is what I hear the Department saying today. Chairman Leahy. Thank you. Mr. Halperin? Mr. Halperin. Well, first, if I can comment on that very briefly, the fact is that the paragraph that you read, Mr. Chairman, is not in the section of the letter that Mr. Kris said it is in. It is in the section of the letter precisely interpreting what would be the meaning of the new ``significant purpose'' section. So I think the Justice Department has created a legislative history for itself which supports the Committee's interpretation, and the letter speaks for itself and where it is in the letter speaks for itself. On the issue of how to make it more open, I do want to say that I find it somewhat strange that this is always referred to as a secret court issuing secret warrants, because, of course, all search warrants are done ex parte in secret just with the government. So in that sense, this isn't any different. But I do think that nobody contemplated that decisions of law which were unclassified would not be made public, and I think nobody contemplated that appeals which dealt with legal issues would be non-adversarial and in secret. And I do think that Congress needs to make it clear that if the court issues unclassified opinions, they need to be published. You don't have to wait until you somehow find out about them and ask for them. I also think that what happened yesterday was disgraceful: a hearing on legal issues in which there was no adversarial process, in which the public was not allowed to be present. If the Government thought it needed an additional session in camera to present some information, as it did in its brief, that could have been decided by the court and would have been appropriate. But the notion that you have a public opinion, you have a public Government brief, and you have a secret non-adversarial hearing goes against, I think, every fundamental element of what we understand to be the way to protect individual rights in a constitutional process. And I think if the court doesn't correct that, Congress needs to do so. Chairman Leahy. Thank you. Senator DeWine. Have you asked questions? Senator Specter. No. Chairman Leahy. I am sorry. I thought you had asked questions. I apologize. Senator Specter. No, I have not. Chairman Leahy. Senator Specter. I do apologize. Senator Specter. Mr. Kris, taking up the issue of standards for probable cause on warrants under the Foreign Intelligence Surveillance Act, I know you have the case of Illinois v. Gates because you showed it to me when I walked by to greet you before the hearing started. I had thought that the Gates case was prohibited reading for the Department of Justice and the FBI. Is there any doubt in your mind that the appropriate standard for the issuance of a warrant under the Foreign Intelligence Surveillance Act? It does not require preponderance of the evidence? Mr. Kris. There is no doubt in my mind on that score. Senator Specter. Or any higher standard? Mr. Kris. Certainly not higher. Senator Specter. And the definition which then-Associate Justice Rehnquist articulated, going back to the opinion by Chief Justice Marshall all the way back to the Cranch case in 1813, turns essentially on suspicion and a totality of the circumstances? Mr. Kris. I completely agree. Senator Specter. Do you know if there has been any effort since the June 6 hearing with Special Agent Rowley and FBI Director Mueller where this Committee took up in great detail that question--whether there has been any effort to educate the agents of the FBI about that standard? Mr. Kris. Yes, sir, there has been, and indeed I think this came up in my earlier answers to Senator Grassley's questions. I know the Bureau is preparing some guidance on the probable cause. Senator Specter. Who is preparing it? Mr. Kris. The FBI, and I myself actually reviewed a draft of that guidance, I don't know, a week or two ago. Senator Specter. Well, had that been done before we had the closed session with the FBI agents on July 10? Mr. Kris. I don't know the answer to that. I certainly don't think I reviewed a draft until after July 10. I couldn't tell you whether it was---- Senator Specter. Why does it take so long, when these warrants are so important to find out what is going on with possible subversion or possible terrorism? Mr. Kris. I really can't answer that fully. I can say that when I saw the draft, the suggestion I had was because probable cause is such a fact-intensive inquiry, because it is a pragmatic, fluid concept, you can't actually say much that is meaningful and actually helpful in the abstract. What you need to focus on are some examples of real cases with real facts in which the facts are such and such, and the court rules yes or no, there is or is not probable cause. So I think maybe the crafting of the guidance has taken some time. They want to get it right, they want it to be helpful, they want it to be useful and good. So sometimes that takes some time, but I am not really intimately part of that process. I just reviewed this draft recently. Senator Specter. Well, I do not agree with you that definitions in the abstract are not helpful. They may not be conclusive, but when the court articulates a standard for probable cause, they cannot start to run out a whole string of examples; they have to generalize. When you have Associate Justice Rehnquist, now Chief Justice, articulating that standard, isn't it minimal that the FBI agents would know the case? It may not provide all the answers, but it is a start, isn't it? Mr. Kris. I mean, I maybe overstated in my prior answer. I don't mean to say that there is nothing useful to be said in the abstract, but saying something like it is not a preponderance or a ``more likely than not'' standard is a good start--I will take your point on that, but I think that good guidance here would actually trot out a series of examples because, at ground level, I think the central teaching of Gates is that it is such a fact-intensive question and it is such a pragmatic standard that at least you can't just describe these things in abstract terms. You need to get down in the weeds and dig in. So maybe I will retract my statement to the extent I said abstract is no good. It is just not the whole picture. Senator Specter. Well, would you find out for this Committee when the standards were propounded and would you furnish this Committee with a copy of the standards, and would you seek to provide an answer as to why it has taken so long? The generalizations that you have given I consider inadequate if it wasn't done by July 10. We will find out when it was done, and I would prefer to ask Director Mueller these questions, but he is not here and he hasn't responded to correspondence. We had a lengthy session with Attorney General Ashcroft on this matter during the oversight hearing and it got me a luncheon invitation to meet with him and his top deputies at the Department of Justice. Frankly, I wasn't interested in lunch, but I was interested in an answer. So I went to lunch and then I finally got an answer. But to say that it is disquieting is an understatement. To say that it is disrespectful to the Judiciary Committee is an understatement. But the real point is that it puts Americans at peril if the Department of Justice and the FBI don't know what the standard is, if they are applying a standard which is too high. So we have the converse here of the FBI and the Department of Justice being uninformed about the standard and applying the wrong standard. And you have a public hearing on June 6, widely publicized. Agent Rowley was all over the newspapers, all over television, and by July 10 the FBI agents still don't know what the standard is, and then my letter to the Director the very next day to try to get some motion. So let us know the specifics as to when they acted and the specific instructions which were given and an explanation, if you can provide one. And just for a moment, having not been as vigorous as the Department ought to be, is there some effect on being gunshy by the FBI as a result of one agent being disqualified from applying for warrants to the FISA Court? Mr. Kris. I don't--and I have said this before in briefings--I don't see a connection between concerns about the accuracy of FISA applications and the facts reported in them and the adequacy of those facts to establish probable cause. The accuracy principle requires us to tell the truth to the court and give the facts, good, bad and ugly, such as they are, and not to omit material facts and not to misstate material facts. That is an obligation the Government always has in dealing with any court, but it is particularly potent with respect to this court, in part because of the nature of the proceedings. Senator Specter. So your answer is no? Mr. Kris. I don't see a connection between that and what you call being gunshy about facing up to the facts such as they are and then pushing them to probable cause. Senator Specter. My red light is on, so I want to conclude this. The Committee intends to go into detail as to why the agent was disqualified. I think that is a very severe consequence for the court to disqualify an agent and we intend to look at it. If the court disqualifies him from being an agent, he still is an agent. He appeared in our closed session. Mr. Kris. Yes. Senator Specter. Then there is a question about whether he ought to be an agent. Speaking for myself, I don't think the FBI ought to sit back and let an agent be disqualified unless there is really a basis for it. They ought to protect the agent, but that is an oversight function for this Committee. We will take a look at what the court has done and what the FBI has done. Mr. Halperin, just one question for you. You are a veteran of this line and have special insights, having been the subject of illegal eavesdropping over wiretaps yourself. Do you have any reason to challenge what the FBI or the Department of Justice is doing under the Foreign Intelligence Surveillance Act or Title III wiretaps at the present time? Mr. Halperin. Well, of course, the problem is that we don't really know because we don't learn until much later. I was frankly very disturbed by the court's decision. That is, as I have said, a group of very distinguished judges. Many of us have worked with Royce Lamberth when he was in the Justice Department, know of his decisions on the court. Senator Specter. Why were you disturbed with the decision? I would have thought you would have liked it. Mr. Halperin. I liked the outcome. What I was disturbed by was the clear indication that the judges, not only on the issue of the incorrect facts, but in their view that the Justice Department had misinterpreted the intent of Congress in the statute--that the Government was, in fact, doing things that it should not be doing. I was pleased that the judges ruled the way they did. I think their decision was correct. But I think it underscores the fact that oversight by this Committee, by the Congress as a whole, making the court procedure more open to the degree that we can and more adversarial is necessary because otherwise there is no way to find out what is to be done. It is also, I think, a problem, in my view, that the courts have misinterpreted the provisions of the statute that deal with what happens when the Government uses FISA information in a criminal prosecution. As I understand it, there has not been a single case in which the defendant has been given the justification for the wiretap so that there could be an adversarial confrontation as to whether there was, in fact, probable cause. The statute says that needs to be done when due process requires it, and I think the courts have misinterpreted it to say that a non-adversarial, in camera hearing is always sufficient. That increases the sense that we can't really know what is going on because even people, where it is used against them in a criminal trial, don't have what I think is the necessary opportunity to challenge that. Senator Specter. Well, I would like to go further, but Senator DeWine has been waiting a long time. In conclusion, I would just say we intend to pursue it. This oversight is going to be pursued, but I have to tell you it is like pulling teeth, with all due respect, Mr. Kris, dealing with the Department of Justice, like pulling bicuspids dealing with the FBI. And it is pretty hard to deal with the court, telling us separation of powers, when we are looking for an opinion. That is not separation of powers, to read an opinion. Thank you, gentlemen, for being here. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you, Senator. Senator DeWine. Senator DeWine. Well, Mr. Chairman, let me just reiterate what I said earlier in my opening statement, to follow up on what Senator Specter just said, that it is impossible for this Judiciary Committee and for the Intelligence Committee and for Congress to have proper oversight because we don't know what the court has been doing. It is one of the only times that we have passed a law that we don't have any really good indication of its effectiveness. You know, it is obvious from this panel and this Committee that we are probably divided on how we look at this and which way we should be going. But without the ability to get the information, it is just very, very difficult. Mr. Kris, let me get back to you one more time. I know you are having a great day today. Thank you for being with us, and all the panelists. It has been a good panel. Mr. Bass said a few minutes ago that he believes that you at the Justice Department look at FISA as an alternative to Title III, and I want to kind of explore that with you because I am still not clear and I don't think it is clear how far you all think the law does, in fact, go. The PATRIOT Act, in Section K, talks about coordination with law enforcement and I will read part of it. ``Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with federal law enforcement officers to coordinate efforts, to investigate or protect against,'' and three things are listed. Then it concludes: ``Coordination authorized under paragraph (1) shall not preclude the certification which is required by section,'' et cetera. How far does this go and what is your position? I mean, do you believe that the correct interpretation of the law is that Justice can, in fact, direct FISA investigations, or that law enforcement can? It is not clear how far that goes. I know what the statute says. I have looked at your guidelines. ``Consultations may include the exchange of advice and recommendations on all issues necessary to the ability of the United States to investigate or protect against foreign attack.'' And then it goes on later on: ``initiation, operation, continuation, or expansion of FISA searches or surveillance.'' Mr. Kris. There is a very long answer to your question which I will avoid for now, and then there is a shorter answer. So let me start with the shorter one, and that is I think that direction or control by law enforcement---- Senator DeWine. Well, let's start with my first question, though, whether or not you really think that this is an alternative to Title III and you can just kind of pick and choose, which is the inference from Mr. Bass. Mr. Kris. Yes, I mean I guess I would say that is right at least to a certain extent, or at least to the following extent. If we are faced with a case in which we satisfy the standards of Title III and we also satisfy the standards of FISA, then it would be a matter of choice which avenue---- Senator DeWine. Okay. I would interpret that as a ``no, but,'' but you can say it however you want to. Mr. Kris. I mean, I do think it is an alternative. Senator DeWine. You are saying you have to meet the requirements of FISA? Mr. Kris. Yes. So in that sense, of course, it is an alternative. I mean, I think maybe what Mr. Bass is getting at is that our interpretation of FISA makes it available even when prosecution is the purpose of the surveillance, and with that I certainly do agree. Our fundamental---- Senator DeWine. Agree in what way? Mr. Kris. I agree that prosecution--when you are dealing with spies and terrorists and those listed threats that you mentioned that are cited not only in the definition of foreign intelligence, but also in the---- Senator DeWine. Which the law says you can cooperate with. Mr. Kris. Right. When you are talking about those threats, I say that FISA does not discriminate among law enforcement methods and other methods of protecting against them. So it doesn't matter for purposes of FISA whether the goal is to protect against espionage by prosecuting Robert Hanssen or whether the goal is to protect against espionage by flipping him and turning him into a triple agent and running him back against his handlers. That difference is not a difference that has traction in FISA. That is the Government's position. Senator DeWine. But you would qualify that, I guess, by what you said a moment ago that if you are proceeding under that, you still have to qualify under both. Is that right? Mr. Kris. Under--I am sorry--both what? Senator DeWine. Title III and FISA. Mr. Kris. No. If you file a FISA application, you need only satisfy FISA. You don't need to worry about Title III, and vice versa. One other point I should make is it is easy to take these ``purpose'' provisions in isolation from the rest of the statute. I think it is important to point out one very key difference between Title III and FISA which does make a difference about their availability apart from the law enforcement purpose, and that is who can be a target. Title III can basically apply to any felon in the case of electronic communications and to anybody who commits a long list of predicate felonies set forth in Section 2516 for wire and oral communications. It doesn't say anything about who the target is, other than that it be somebody who is committing these list of crimes. FISA, by contrast, is confined to persons who qualify as agents of foreign powers. So if there is an investigation of Bonnie and Clyde for bank robbery, or even John Gotti, that is not a FISA--you can't do that under FISA. Senator DeWine. My time is up, but let me just close, with the chairman's permission. In the Attorney General's guidelines, the term ``direct'' is not used, and so I would like to understand whether Justice intended to have prosecutors direct FISA investigations. Mr. Kris. Well, I would say that the term ``direction and control'' is not in our procedures, nor is it anywhere to be found in FISA. Direction and control--I mean, I don't even know exactly what that is. If it means advice-giving, I think there is a lot of advice-giving. If, however, direction and control were exercised by prosecutors, if they started bossing around the intelligence agents to the point that there was no significant foreign intelligence purpose for the surveillance, then, of course, we would be over the line. There must be a significant foreign intelligence purpose for the surveillance. I think direction and control is just a proxy that has no textual anchor in FISA, and it is a bad proxy. The test that matters always is, is there a significant foreign intelligence purpose for this surveillance. In some cases, there will be direction and control and there still will be a significant foreign intelligence purpose. In others, there wouldn't be. It would depend on the facts, but I think we need to focus on what the statute actually says and not some formula that was created as a proxy. And it appears in the 1995 guidelines--I don't mean to cast aspersions on others, but I don't think it is rooted in the text of the statute. So I don't think it ought to be used instead of the actual text of the statute. Senator DeWine. Thank you. Thank you, Mr. Chairman. Chairman Leahy. Thank you. Well, I thank you gentlemen for this. Mr. Bass, you know, I couldn't help but think when Mr. Kris was answering that that your eyebrow went up a bit. Mr. Bass. It did. Chairman Leahy. Was I reading that correctly? Mr. Bass. You did. Let me put a specific hypothetical to the Committee and to Mr. Kris that I think highlights the concern at least that I have. If we had in the beginning been presented with an FBI agent from the Southern District of New York who came in and said we have uncovered evidence of securities fraud being engaged in by this U.S. citizen who is an employee of Deutschebank and we want to do a FISA surveillance, it would not have taken us two minutes to say go down to the Criminal Division, don't come to us, despite the fact that I think legally we could have worked that surveillance into the text of FISA. But the critical difference would have been that in that sort of case, there was absolutely no intention in anybody's mind of using it as part of a national security policy concern. It would not have gone to the NSC, it would not have gone to State, it would not have gone to the White House. It would have remained a purely domestic law enforcement matter. I haven't heard the Department of Justice publicly confront that sort of hypothetical and tell us what they think the PATRIOT Act did to that calculus. I hear some overtones that say, well, we think if we could squeeze it under the language of the Act and make that a matter of statutorily defined foreign intelligence, we could do that surveillance even if we had no intention from day one of ever doing anything except to conduct a criminal investigation. If that is their view, I think they are dead wrong with respect to congressional intent, to the extent I can divine some intent from the PATRIOT Act, and I think they are dead wrong as a matter of public policy. But that is the issue for me that we are still waltzing around. Senator DeWine. Mr. Chairman, just one last comment. The chairman has been very indulgent. Chairman Leahy. Always. Senator DeWine. I know. I appreciate it, Mr. Chairman. We are going to have this debate, and I am glad we are having this debate. I think it is very proper and I think a lot of good points have been made, but it seems to me that the bottom line is going to come down to a common-sense approach, however we craft it, and that is the question why are we after this guy, why do we want him? It seems to me that is what Mr. Bass was saying, and I think it was frankly what Mr. Kris was saying. The public would pretty much understand that. Why do we really want this guy? Is it a national security issue or is it because he is a no-good bum and he is violating the law and we have to go get him? It seems to me that is what it is going to boil down to. Chairman Leahy. Yes, but we should never forget the history of how this all got put into place. Senator DeWine. Well, we are not going to forget that. Chairman Leahy. No. I mean, in a society like ours we do have these checks and balances. The Senator from Ohio is a former prosecutor. We both used to hear people say, boy, we have got to get rid of all these technicalities so we can get at the criminals. We tended to be able to work pretty well with the technicalities, from Miranda to search and seizure, because we knew it did give a check and balance. I don't want to go back to the days in the past when we started going into these investigations because we didn't like somebody's political views or religious views, because that is a sword that can cut too many ways. Somebody had answered about the Woods Procedures. We got those declassified and released at our June 6 hearing. I believe it was you, Mr. Kris, who mentioned it. I am glad they are working to increase the accuracy of affidavits given to the FISA Court. I think we are going to have to have a lot more hearings on this. I would urge the Department of Justice to listen--this is not a partisan call to the concerns being expressed by both Republicans and Democrats of both the House and Senate Judiciary Committees. Obviously, on this Committee, and I have been on it for nearly a quarter of a century, we try to work with whatever administration there is and to try to get things cooperatively. We also have subpoena power. Cooperation is always more satisfactory to everybody. Subpoena power is always there. Senator Thurmond has submitted a statement and it will be included in the record. [The prepared statement of Senator Thurmond appears as a submission for the record.] Chairman Leahy. We also have a FISC opinion, of May 17, 2002; a letter from myself, Senator Grassley, and Senator Specter to the FISC; and a chart that we will include in the record at this point. Thank you, gentlemen, for taking the time. [Whereupon, at 12:22 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHIC] [TIFF OMITTED] T7866.001 [GRAPHIC] [TIFF OMITTED] T7866.002 [GRAPHIC] [TIFF OMITTED] T7866.003 [GRAPHIC] [TIFF OMITTED] T7866.004 [GRAPHIC] [TIFF OMITTED] T7866.005 [GRAPHIC] [TIFF OMITTED] T7866.006 [GRAPHIC] [TIFF OMITTED] T7866.007 [GRAPHIC] [TIFF OMITTED] T7866.008 [GRAPHIC] [TIFF OMITTED] T7866.009 [GRAPHIC] [TIFF OMITTED] T7866.010 [GRAPHIC] [TIFF OMITTED] T7866.011 [GRAPHIC] [TIFF OMITTED] T7866.012 [GRAPHIC] [TIFF OMITTED] T7866.013 [GRAPHIC] [TIFF OMITTED] T7866.014 [GRAPHIC] [TIFF OMITTED] T7866.015 [GRAPHIC] [TIFF OMITTED] T7866.016 [GRAPHIC] [TIFF OMITTED] T7866.017 [GRAPHIC] [TIFF OMITTED] T7866.018 [GRAPHIC] [TIFF OMITTED] T7866.019 [GRAPHIC] [TIFF OMITTED] T7866.020 [GRAPHIC] [TIFF OMITTED] T7866.021 [GRAPHIC] [TIFF OMITTED] T7866.022 [GRAPHIC] [TIFF OMITTED] T7866.023 [GRAPHIC] [TIFF OMITTED] T7866.024 [GRAPHIC] [TIFF OMITTED] T7866.025 [GRAPHIC] [TIFF OMITTED] T7866.026 [GRAPHIC] [TIFF OMITTED] T7866.027 [GRAPHIC] [TIFF OMITTED] T7866.028 [GRAPHIC] [TIFF OMITTED] T7866.029 [GRAPHIC] [TIFF OMITTED] T7866.030 [GRAPHIC] [TIFF OMITTED] T7866.031 [GRAPHIC] [TIFF OMITTED] T7866.032 [GRAPHIC] [TIFF OMITTED] T7866.033 [GRAPHIC] [TIFF OMITTED] T7866.034 [GRAPHIC] [TIFF OMITTED] T7866.035 [GRAPHIC] [TIFF OMITTED] T7866.036 [GRAPHIC] [TIFF OMITTED] T7866.037 [GRAPHIC] [TIFF OMITTED] T7866.038 [GRAPHIC] [TIFF OMITTED] T7866.039 [GRAPHIC] [TIFF OMITTED] T7866.040 [GRAPHIC] [TIFF OMITTED] T7866.041 [GRAPHIC] [TIFF OMITTED] T7866.043 [GRAPHIC] [TIFF OMITTED] T7866.044 [GRAPHIC] [TIFF OMITTED] T7866.045 [GRAPHIC] [TIFF OMITTED] T7866.046 [GRAPHIC] [TIFF OMITTED] T7866.047 [GRAPHIC] [TIFF OMITTED] T7866.048 [GRAPHIC] [TIFF OMITTED] T7866.049 [GRAPHIC] [TIFF OMITTED] T7866.050 [GRAPHIC] [TIFF OMITTED] T7866.051 [GRAPHIC] [TIFF OMITTED] T7866.052 [GRAPHIC] [TIFF OMITTED] T7866.053 [GRAPHIC] [TIFF OMITTED] T7866.054 [GRAPHIC] [TIFF OMITTED] T7866.055 [GRAPHIC] [TIFF OMITTED] T7866.056 [GRAPHIC] [TIFF OMITTED] T7866.057 [GRAPHIC] [TIFF OMITTED] T7866.058 [GRAPHIC] [TIFF OMITTED] T7866.059 [GRAPHIC] [TIFF OMITTED] T7866.060 [GRAPHIC] [TIFF OMITTED] T7866.061 [GRAPHIC] [TIFF OMITTED] T7866.062 [GRAPHIC] [TIFF OMITTED] T7866.063 [GRAPHIC] [TIFF OMITTED] T7866.064 [GRAPHIC] [TIFF OMITTED] T7866.065 [GRAPHIC] [TIFF OMITTED] T7866.066 [GRAPHIC] [TIFF OMITTED] T7866.067 [GRAPHIC] [TIFF OMITTED] T7866.068 [GRAPHIC] [TIFF OMITTED] T7866.069 [GRAPHIC] [TIFF OMITTED] T7866.070 [GRAPHIC] [TIFF OMITTED] T7866.071 [GRAPHIC] [TIFF OMITTED] T7866.072 [GRAPHIC] [TIFF OMITTED] T7866.073 [GRAPHIC] [TIFF OMITTED] T7866.074 [GRAPHIC] [TIFF OMITTED] T7866.075 [GRAPHIC] [TIFF OMITTED] T7866.076 [GRAPHIC] [TIFF OMITTED] T7866.077 [GRAPHIC] [TIFF OMITTED] T7866.078 [GRAPHIC] [TIFF OMITTED] T7866.079 [GRAPHIC] [TIFF OMITTED] T7866.080 [GRAPHIC] [TIFF OMITTED] T7866.081 [GRAPHIC] [TIFF OMITTED] T7866.082 [GRAPHIC] [TIFF OMITTED] T7866.083 [GRAPHIC] [TIFF OMITTED] T7866.084 [GRAPHIC] [TIFF OMITTED] T7866.085 [GRAPHIC] [TIFF OMITTED] T7866.086 [GRAPHIC] [TIFF OMITTED] T7866.087 [GRAPHIC] [TIFF OMITTED] T7866.088 [GRAPHIC] [TIFF OMITTED] T7866.089 [GRAPHIC] [TIFF OMITTED] T7866.090 [GRAPHIC] [TIFF OMITTED] T7866.091 [GRAPHIC] [TIFF OMITTED] T7866.092 [GRAPHIC] [TIFF OMITTED] T7866.093 [GRAPHIC] [TIFF OMITTED] T7866.094 [GRAPHIC] [TIFF OMITTED] T7866.095 [GRAPHIC] [TIFF OMITTED] T7866.096 [GRAPHIC] [TIFF OMITTED] T7866.097 [GRAPHIC] [TIFF OMITTED] T7866.098 [GRAPHIC] [TIFF OMITTED] T7866.099 [GRAPHIC] [TIFF OMITTED] T7866.100 [GRAPHIC] [TIFF OMITTED] T7866.101 [GRAPHIC] [TIFF OMITTED] T7866.102 [GRAPHIC] [TIFF OMITTED] T7866.103 [GRAPHIC] [TIFF OMITTED] T7866.104 [GRAPHIC] [TIFF OMITTED] T7866.105 [GRAPHIC] [TIFF OMITTED] T7866.106 [GRAPHIC] [TIFF OMITTED] T7866.107 [GRAPHIC] [TIFF OMITTED] T7866.108 [GRAPHIC] [TIFF OMITTED] T7866.109 [GRAPHIC] [TIFF OMITTED] T7866.110 [GRAPHIC] [TIFF OMITTED] T7866.111 [GRAPHIC] [TIFF OMITTED] T7866.112 [GRAPHIC] [TIFF OMITTED] T7866.113 [GRAPHIC] [TIFF OMITTED] T7866.114 [GRAPHIC] [TIFF OMITTED] T7866.115 [GRAPHIC] [TIFF OMITTED] T7866.116 [GRAPHIC] [TIFF OMITTED] T7866.117 [GRAPHIC] [TIFF OMITTED] T7866.118 [GRAPHIC] [TIFF OMITTED] T7866.119 [GRAPHIC] [TIFF OMITTED] T7866.120 [GRAPHIC] [TIFF OMITTED] T7866.121 [GRAPHIC] [TIFF OMITTED] T7866.122 [GRAPHIC] [TIFF OMITTED] T7866.123 [GRAPHIC] [TIFF OMITTED] T7866.124 [GRAPHIC] [TIFF OMITTED] T7866.125 [GRAPHIC] [TIFF OMITTED] T7866.126 [GRAPHIC] [TIFF OMITTED] T7866.127 [GRAPHIC] [TIFF OMITTED] T7866.128 [GRAPHIC] [TIFF OMITTED] T7866.129 [GRAPHIC] [TIFF OMITTED] T7866.130 [GRAPHIC] [TIFF OMITTED] T7866.131 [GRAPHIC] [TIFF OMITTED] T7866.132 [GRAPHIC] [TIFF OMITTED] T7866.133 [GRAPHIC] [TIFF OMITTED] T7866.134 [GRAPHIC] [TIFF OMITTED] T7866.135 [GRAPHIC] [TIFF OMITTED] T7866.136 [GRAPHIC] [TIFF OMITTED] T7866.137 [GRAPHIC] [TIFF OMITTED] T7866.138 [GRAPHIC] [TIFF OMITTED] T7866.139 [GRAPHIC] [TIFF OMITTED] T7866.140 [GRAPHIC] [TIFF OMITTED] T7866.141 [GRAPHIC] [TIFF OMITTED] T7866.142 [GRAPHIC] [TIFF OMITTED] T7866.143 [GRAPHIC] [TIFF OMITTED] T7866.144 [GRAPHIC] [TIFF OMITTED] T7866.145 [GRAPHIC] [TIFF OMITTED] T7866.146 [GRAPHIC] [TIFF OMITTED] T7866.147 [GRAPHIC] [TIFF OMITTED] T7866.148 [GRAPHIC] [TIFF OMITTED] T7866.149 [GRAPHIC] [TIFF OMITTED] T7866.150