Congressional Record: February 26, 2003 (Senate)
Page S2724-S2767
EXECUTIVE SESSION
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. [...]
Mr. President, I intend to talk on another subject. I have gotten the
acquiescence of the chairman of the committee, Senator Hatch. This is
not about the Estrada nomination that we are generally talking about,
although Senators have talked about other subjects. The subject I am
now going to discuss is a matter of great national importance. It
relates to a report that was issued yesterday by Senator Leahy, Senator
Grassley, and myself. It is in reference to the issue of terrorism.
The Judiciary Committee is scheduled to have a hearing next Tuesday,
and there are matters that require discussion so that we are in a
position to get responses from the Director of the FBI and move ahead
with the Judiciary Committee hearings scheduled, as I said, for next
Tuesday.
Yesterday, as a matter of senatorial oversight, Senator Leahy,
Senator Grassley, and I released a 37-page report that deals with the
issue of the FBI's activities under the Foreign Intelligence
Surveillance Act (``FISA'') and the ability of the Federal Bureau of
Investigation and the Department of Justice to handle counterterrorism.
The report can be found on my office's internet website at
specter.senate.gov.
It is my view that there is a critical issue of the FBI's competence
to handle terrorism, in light of the clear-cut failures of the FBI
prior to 9/11, and the FBI's failure to answer important questions
about what the FBI has done to correct the current failures.
The report we released yesterday refers to the FBI's handling of the
famous Phoenix memorandum, where there was a suspicious person who was
taking flight training in the Phoenix area, and he had a big picture of
Osama bin Laden on his wall. A detailed FBI report was submitted to
Washington and was lost in the shuffle at FBI headquarters.
At pages 31-32 of the report that we filed yesterday, there is a
reference to the Phoenix memo. Had it been forwarded to the right
personnel and understood at FBI headquarters, the Foreign Intelligence
Surveillance Act request in the Moussaoui case from the Justice
Department's Office of Intelligence Policy and Review would have been
handled in a different manner. With that Phoenix report, coupled with
the information from Zacarias Moussaoui's computer, and coupled with
other information, 9/11 might well have been prevented.
There was information in the hands of the Central Intelligence Agency
about individuals in Kuala Lampur, Malaysia, who later turned out to be
among the hijackers on 9/11--information that was not turned over to
the Immigration and Naturalization Service. Had it been turned over,
those individuals would have been kept out of the United States and
would not have been hijackers on 9/11.
There had been information as early as 1996 from a Pakistani named
Abdul Hakim Murad, an al-Qaida member, who had plans to fly an airplane
into the White House or CIA headquarters.
Had the information on Zacarias Moussaoui been properly handled, it
could have led to a FISA search authorization for Moussaoui's computer
and the information contained on that computer, and might well have
prevented 9/11.
The Zacarias Moussaoui case received national prominence when a
conscientious FBI agent named Coleen Rowley wrote a 13-page, single-
spaced letter to the FBI Director, which the Judiciary Committee
ultimately saw and was the subject of a very important Judiciary
Committee hearing last June 6. FBI Agent Rowley was honored on the
cover of Time Magazine as one of the persons of the year--three so-
called whistleblowers, which is a categorization that doesn't sound too
complimentary on its face, but it is very important when somebody knows
what is going on within the Government that is wrong and has the
courage to stand up and expose it and subject himself or herself to
retaliation.
But in the course of what Agent Rowley wrote to FBI Director Mueller,
it was apparent the FBI was applying the wrong standard for a warrant
under the Foreign Intelligence Surveillance Act.
The letter from Agent Rowley pointed out that they were being held to
a standard of preponderance of the evidence--meaning more likely or
more probable than not--meaning 51 percent or more. In the course of
that hearing, I raised with Director Mueller and with Agent Rowley the
case of Illinois v. Gates, 462 U.S. 213, 1983, which appears at pages
23-24 of the report that Senators Leahy, Grassley, and I released
yesterday, which defined probable cause as ``circumstances which
warrant suspicion'' under the ``totality of the circumstances
analysis.''
This case was decided in 1983 and it referred back to an opinion of
Chief Justice Marshall in 1813. So this had been the law for a long
time. But at the hearing, Agent Rowley testified that was not the
standard that was used, and there is a real question which has yet to
be answered as to whether FBI Director Mueller knew what the right
standard was.
In light of the fact that a warrant was not obtained under the
Foreign Intelligence Surveillance Act, Moussaoui, a key participant in
the 9/11 planning, developed into a burgeoning, very major case in the
United States in the intervening months. We then proceeded to have a
closed-door session, where we brought in attorneys and personnel from
the FBI who were in charge of handling warrants under the Foreign
Intelligence Surveillance Act. This appears at page 27.
My questioning:
What is the legal standard for probable cause for a
warrant?
FBI attorney:
A reasonable belief that the facts you are trying to prove
are accurate.
Question by me:
Reason to believe?
Answer by the attorney:
Reasonable belief.
Question by me:
Reasonable belief?
Answer by the attorney:
More probable than not.
My question:
More probable than not?
Mr. President, that is not the standard. The standard is suspicion
under the totality of the circumstances. Here is the key attorney who
is supposed to pass on applications for warrants under the Foreign
Intelligence Surveillance Act, and he doesn't know the standard.
My question was:
Are you familiar with Gates v. Illinois?
Answer:
No, sir.
He doesn't know the baseline case for deciding what the standard is
for probable cause, and he is the man who is supposed to approve
warrants under the Foreign Intelligence Surveillance Act so that we can
find out what men like Zacarias Moussaoui are doing and protect the
American people.
I was absolutely astounded at what I heard. I was astounded because
the June 6 hearings, more than a month before we had this closed-door
session on July 9, were widely publicized. They were on C-SPAN. Maybe
nobody watches C-SPAN. Maybe nobody is watching C-SPAN now. Maybe
nobody ever watches C-SPAN. But beyond being publicized on C-SPAN,
there was extensive newspaper coverage about it. One would have
expected that the agents who deal with the Foreign Intelligence
Surveillance Act would be looking at a hearing which was squarely on
their subject. Or one would also expect that the Director of the FBI,
who was at the hearing, and found that key FBI personnel had applied
the wrong standard in the Zacarias Moussaoui case--causing them not to
apply for a search warrant--that the
[[Page S2737]]
FBI Director would take specific steps to see to it that the people in
charge of handling those warrant applications would have known what was
going on.
From June 6 to July 9 is 33 days. The world could turn in 33 days.
People could be doing highly suspicious things, people could be
planning terrorist attacks, and no action was taken by the Director of
the FBI to see to it that the people who were charged with the
responsibility of applying for these warrants did so.
The very next day, I wrote to the Director of the FBI:
Dear Bob, In a hearing before the Judiciary Committee on
June 6 . . . I called your attention to the standard on
probable cause in the opinion of then-Associate Justice
Rehnquist in Illinois v. Gates. . . .
I go through the business about suspicion and totality of the
circumstances. My letter continues:
In a closed door hearing yesterday, seven FBI personnel
handling FISA warrant applications were questioned, including
four attorneys.
A fair summary of their testimony demonstrated that no one
was familiar with Justice Rehnquist's definition from Gates
and no one articulated an accurate standard for probable
cause.
I would have thought that the FBI personnel handling FISA
applications would have noted this issue from the June 6th
hearing; or, in the alternative, that you or other
supervisory personnel would have called it to their
attention.
It is obvious that these applications, which are frequently
made, are of the utmost importance to our national security
and your personnel should not be applying such a high
standard that precludes submission of FISA applications to
the Foreign Intelligence Surveillance Court.
I believe the Judiciary Committee will have more to say on
this subject but I wanted to call this to your attention
immediately so that you could personally take appropriate
corrective action.
Days followed, weeks followed, and no response from Director Mueller.
Then on September 10, I again raised these issues with a
representative of the Department of Justice who appeared before the
Judiciary Committee. On September 12, I received an undated letter
signed by the Assistant Director for the Office of Public and
Congressional Affairs. It is very unusual to get undated letters. The
representation has been made that the letter was sent on July 25, but
it was received in my office on September 12.
Mr. President, I ask unanimous consent that my letter to Director
Mueller dated July 10 and the undated response from John E. Collingwood
be printed in the Congressional Record at the conclusion of my remarks.
Mr. SCHUMER. Reserving the right to object--and I am not going to
object--I want to get a time line. My friend has important things to
say. How much longer does my colleague from Pennsylvania--if he will
yield for a question--expect to hold the floor?
Mr. SPECTER. I will not say regular order, but there is no basis for
the inquiry, but I will respond. I expect to be about 15 minutes more.
Mr. SCHUMER. I thank my colleague. I am trying to work out our
schedule. I have no objection, of course. I am very interested in what
my colleague has to say.
The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. Mr. President, the FBI then put out a memorandum dated
September 16. That was in response to my questioning the Department of
Justice representative at the Judiciary Committee hearings on September
10. Again, Mr. President, I ask unanimous consent that this memorandum
be printed in the Congressional Record following my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. SPECTER. Mr. President, I will not read the memo or analyze it in
detail, but I invite readers of the Congressional Record to do so. This
is a virtually unintelligible memorandum, if agents are supposed to
read this and know what to do about applications for warrants under the
Foreign Intelligence Surveillance Act.
In paragraph 3, it talks about ``which deal with probabilities.'' It
makes a reference to ``it requires more than unfounded suspicion,'' but
it is not probabilities that involve the standards, it is suspicion.
Obviously, not unfounded suspicion, but suspicion based on a totality
of the circumstances.
At that stage, I again wrote to Director Mueller noting the questions
which I had propounded to him and Special Agent Coleen Rowley on June 6
and the July 10 letter which I wrote to him which had still not been
answered. This undated letter from John E. Collingwood provides no
answer at all. I will not read it in detail, but it will be in the
Record.
The closest the letter from John E. Collingwood, the Assistant
Director for the Office of Public and Congressional Affairs, comes is:
This guidance will also address the concerns raised in your
letter in your meeting with FBI personnel on July 9, 2002. We
anticipate approval of the guidance shortly and will
immediately disseminate it to field offices for
implementation.
That is as close as they come to an answer which, obviously, on its
face is no answer at all.
So I again wrote Director Mueller on September 24, 2002. I referenced
the July 10 letter, and I referenced the fact that on September 12, my
office received an undated letter from Assistant Director Collingwood
which was totally unresponsive. I referenced the September 16 FBI memo,
and concluded by saying I would like an explanation from him as to why
it took the FBI so long to disseminate information on the standard for
probable cause under Illinois v. Gates for a Foreign Intelligence
Surveillance Act warrant. As yet, I have not received an answer from
FBI Director Mueller to that important question as to why it took so
long.
Then I supplemented that letter on October 1, inquiring what were the
specifics on the standard of probable cause used by the FBI for
warrants under the Foreign Intelligence Surveillance Act from June 6,
the date of our Judiciary Committee hearing, until September 16, when
the memorandum went out. As yet, I have not gotten an answer to that
letter.
I ask unanimous consent that both of those letters be printed at the
conclusion of my remarks.
In the sequence of events, we next sent over to the FBI the report
which we issued yesterday to give them an opportunity to review it and
an opportunity to make comments. Finally, last Friday, February 21,
2003, we received another letter dated February 20 from the Department
of Justice which referenced the outstanding questions--not sent to me,
the person who had raised the questions, but sent to Senator Hatch,
with a copy to me--and ending with the statement of what standard had
been applied. The letter is signed by Acting Assistant Attorney General
Jamie E. Brown:
The standard they employed was consistent with ``Illinois
v. Gates'' both before and after they received the
memorandum.
That is patently false. The standard which had been employed before
the memorandum was more probable than not, 51 percent, as testified by
Special Agent Coleen Rowley, and it is undetermined as to what standard
was used thereafter.
The issues under the Foreign Intelligence Surveillance Act have been
raised in other oversight hearings relating to Wen Ho Lee, when the
Department of Justice, on a matter handled by Attorney General Janet
Reno personally, declined to request a warrant under the Foreign
Intelligence Surveillance Act where there was ample probable cause, a
matter which was reviewed in depth by the subcommittee which I chaired
on Department of Justice oversight.
The Attorney General designated Assistant U.S. Attorney Randy Bellows
to review the Wen Ho Lee case. Mister Bellows filed an extensive report
on May 12, 2000, saying that Attorney General Reno was wrong and the
subcommittee of the Judiciary Committee was correct that a warrant
should have been issued.
Just in the last few weeks, an indictment has been returned, charging
Mr. Sami Al-Arian for gathering funds for terrorist organizations since
the early 1990s, an indictment based on extensive evidence collected
pursuant to the Foreign Intelligence Surveillance Act, raising a real
question as to the interpretation by the FBI and the Department of
Justice of the Foreign Intelligence Surveillance Act, going back to Wen
Ho Lee, going back to the 1990s, and surviving up until very recently,
when they failed to utilize the provisions of the Foreign Intelligence
Surveillance Act for criminal prosecutions.
[[Page S2738]]
Prior to the enactment of the PATRIOT Act in the fall of 2001, the
standard for Foreign Intelligence Surveillance Act surveillance had
been interpreted by the courts to be that the primary purpose for the
surveillance had to be for intelligence gathering, but saying ``primary
purpose'' left latitude for some law enforcement purpose.
Then the PATRIOT Act amended the Foreign Intelligence Surveillance
Act standards to say ``significant purpose,'' broadening to some extent
the issue of using Foreign Intelligence Surveillance Act warrants for
law enforcement purposes. So in that substance, there is a persistent
question as to the activities of the Department of Justice in
implementing the Foreign Intelligence Surveillance Act, passed in 1978,
at a time when gathering information and evidence against terrorists is
of the utmost importance for the security of the American people.
In our oversight hearing which we conducted last July 9, and in
subsequent hearings and correspondence, we asked the Department of
Justice for an opinion written by the Foreign Intelligence Surveillance
Court, which the Department of Justice declined to give us. We finally
had to get it from the court itself. In that matter, the Foreign
Intelligence Surveillance Court criticized the Department of Justice
and the FBI for some 75 cases where, as the court put it, the
applications for search warrants had contained substantial
inaccuracies. Then there was an appeal taken, the first such appeal,
where the Court of Appeals for the Foreign Intelligence Surveillance
Act found that there was broader discretion for law enforcement, which
was very important in the war against terrorism.
All of this is very complicated, and I have gone to some length to
put this into the Record.
I ask unanimous consent, on behalf of Senator Leahy, Senator
Grassley, and myself, that the full text of the report issued yesterday
be printed in the Record. As I noted earlier, the report can also be
found on my office's website at specter.senate.gov.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Interim Report on FBI Oversight: FISA Implementation Failures
I. EXECUTIVE SUMMARY AND CONCLUSIONS
Working in a bipartisan manner in the 107th Congress, the
Senate Judiciary Committee conducted the first comprehensive
oversight of the FBI in nearly two decades. That oversight
was aimed not at tearing down the FBI but at identifying any
problem areas as a necessary first step to finding
constructive solutions and marshaling the attention and
resources to implement improvements. The overarching goal of
this oversight was to restore confidence in the FBI and make
the FBI as strong and as great as it must be to fulfill this
agency's multiple and critical missions of protecting the
United States against crime, international terrorism, and
foreign clandestine intelligence activity, within
constitutional and statutory boundaries.
Shortly after the Committee initiated oversight hearings
and had confirmed the new Director of the FBI, the Nation
suffered the terrorist attacks of September 11, 2001, the
most serious attacks on these shores since Pearl Harbor.
While it is impossible to say what could have been done to
stop these attacks from occurring, it is certainly possible
in hindsight to say that the FBI, and therefore the Nation,
would have benefitted from earlier close scrutiny by this
Committee of the problems the agency faced, particularly as
those problems affected the Foreign Intelligence Surveillance
Act (``FISA'') process. Such oversight might have led to
corrective actions, as that is an important purpose of
oversight.
In the immediate aftermath of the attacks, the Congress
and, in particular, the Senate Judiciary Committee responded
to demands by the Department of Justice (DOJ) and the FBI for
greater powers to meet the security challenges posed by
international terrorism. We worked together to craft the USA
PATRIOT Act to provide such powers. With those enhanced
powers comes an increased potential for abuse and the
necessity of enhanced congressional oversight.
Our oversight has been multi-faceted. We have held public
hearings, conducted informal briefings, convened closed
hearings on matters of a classified nature, and posed written
questions in letters in connection with hearings to the DOJ
and FBI. Although our oversight has focused primarily on the
FBI, the Attorney General and the DOJ have ultimate
responsibility for the performance of the FBI. Without both
accountability and support on the part of the Attorney
General and senior officials of the DOJ, the FBI cannot make
necessary improvements or garner the resources to implement
reforms.
At times, the DOJ and FBI have been cooperative in our
oversight efforts. Unfortunately, however, at times the DOJ
and FBI have either delayed answering or refused to answer
fully legitimate oversight questions. Such reticence only
further underscores the need for continued aggressive
congressional oversight. Our constitutional system of checks
and balances and our vital national security concerns demand
no less. In the future, we urge the DOJ and FBI to embrace,
rather than resist, the healthy scrutiny that legitimate
congressional oversight brings.
One particular focus of our oversight efforts has been the
Foreign Intelligence Surveillance Act (FISA). This report is
focused on our FISA oversight for three reasons. First, the
FISA is the law governing the exercise of the DOJ's and FBI's
surveillance powers inside the United States to collect
foreign intelligence information in the fight against
terrorism and, as such, is vitally important to our national
security. Second, the concerns revealed by our FISA oversight
highlight the more systemic problems facing the FBI and the
importance of close congressional oversight and scrutiny in
helping to provide the resources and attention to correct
such problems before they worsen. Third, members of this
Committee led the effort to amend key provisions of the FISA
in the USA PATRIOT Act, and the sunset or termination of
those amendments in four years makes it imperative that the
Committee carefully monitor how the FISA changes are being
implemented.
This report is in no way intended to be a comprehensive
study of what did, or did not, ``go wrong'' before the 9/11
attacks. That important work was commenced by the Joint
Intelligence Committee in the 107th Congress and will be
continued by the National Commission on Terrorist Attacks
(the ``9/11 Commission'') established by an act of Congress
at the end of the last session. The focus of this report is
different than these other important inquiries. We have not
attempted to analyze each and every piece of intelligence or
the performance of each and every member of the Intelligence
Community prior to the 9/11 attacks. Nor have we limited our
inquiry to matters relating only to the 9/11 attacks. Rather,
we have attempted, based upon an array of oversight
activities related to the performance of the FBI over an
extended period of time, to highlight broader and more
systemic problems within the DOJ and FBI and to ascertain
whether these systemic shortcomings played a role in the
implementation of the FISA prior to the 9/11 attacks.
The FISA provides a statutory framework for electronic and
other forms of surveillance in the context of foreign
intelligence gathering. These types of investigations give
rise to a tension between the government's legitimate
national security interests, on the one hand, and, on the
other hand, constitutional safeguards against unreasonable
government searches and seizures and excessive government
intrusion into the exercise of free speech, associational,
and privacy rights. Congress, through legislation, has sought
to strike a delicate balance between national security and
constitutionally protected interests in this sensitive
arena.
The oversight review this Committee has conducted during
the 107th Congress has uncovered a number of problems in the
FISA process: a misunderstanding of the rules governing the
application procedure, varying interpretations of the law
among key participants, and a break-down of communication
among all those involved in the FISA application process.
Most disturbing is the lack of accountability that has
permeated the entire application procedure.
Our FISA oversight--especially oversight dealing with the
time leading up to the 9/11 attacks--has reinforced the
conclusion that the FBI must improve in the most basic
aspects of its operations. Following is a list of our most
important conclusions:
FBI Headquarters did not properly support the efforts of
its field offices in foreign intelligence matters. The role
of FBI Headquarters in national security investigations is to
``add value'' in two ways: by applying legal and practical
expertise in the processing of FISA surveillance applications
and by integrating relevant information from all available
intelligence sources to evaluate the significance of
particular information and to supplement information from the
field. In short, Headquarters' role is to know the law and
``connect the dots'' from multiple sources both inside and
outside the FBI. The FBI failed in this role before the 9/11
attacks. In fact, the bureaucratic hurdles erected by
Headquarters (and DOJ) not only hindered investigations but
contributed to inaccurate information being presented to the
FISA Court, eroding the trust in the FBI of the special court
that is key to the government's enforcement efforts in
national security investigations.
Key FBI agents and officials were inadequately trained in
important aspects of not only FISA, but also fundamental
aspects of criminal law.
In the time leading up to the 9/11 attacks, the FBI and DOJ
had not devoted sufficient resources to implementing the
FISA, so that long delays both crippled enforcement efforts
and demoralized line agents.
The secrecy of individual FISA cases is certainly
necessary, but this secrecy has been extended to the most
basic legal and procedural aspects of the FISA, which should
not be secret. This unnecessary secrecy contributed to the
deficiencies that have hamstrung the implementation of the
FISA.
[[Page S2739]]
Much more information, including all unclassified opinions
and operating rules of the FISA Court and Court of Review,
should be made public and/or provided to the Congress.
The FBI's failure to analyze and disseminate properly the
intelligence data in the agency's possession rendered useless
important work of some of its best field agents. In short,
the FBI did not know what it knew. While we are encouraged by
the steps commenced by Director Mueller to address this
problem, there is more work to be done.
The FBI's information technology was, and remains,
inadequate to meet the challenges facing the FBI, and FBI
personnel are not adequately trained to use the technology
that they do possess. We appreciate that Director Mueller is
trying to address this endemic problem, but past performance
indicates that close congressional scrutiny is necessary to
ensure that improvements continue to be made swiftly and
effectively.
A deep-rooted culture of ignoring problems and discouraging
employees from criticizing the FBI contributes to the FBI's
repetition of its past mistakes in the foreign intelligence
field. There has been little or no progress at the FBI in
addressing this culture.
It is important to note that our oversight and conclusions
in no way reflect on the fine and important work being done
by the vast majority of line agents in the FBI. We want to
commend the hard-working special agents and supervisory
agents in the Phoenix and Minneapolis field offices for their
dedication, professionalism, and initiative in serving the
American people in the finest traditions of the FBI and law
enforcement. Indeed, one of our most basic conclusions, both
with respect to FISA and the FBI generally, is that
institutional and management flaws prevent the FBI's field
agents from operating to their full potential.
Although the DOJ and FBI have acknowledged shortcomings in
some of these areas and begun efforts to reform, we cannot
stress strongly enough the urgency of this situation. The
pace of improvement and reform must quicken.
We are issuing this interim public report now so that this
information is available to the American people and Members
of Congress as we evaluate the implementation of the USA
PATRIOT Act amendments to the FISA and additional pending
legislation, including the FBI Reform Act. We also note that
many of the same concerns set forth in this report have
already led to legislative reforms. Included in these was the
bipartisan proposal, first made in the Senate, to establish a
cabinet level Department of Homeland Security, a proposal
that is already a legislative reality. Our oversight also
helped us to craft and pass, for the first time in 20
years, the 21st Century Department of Justice
Appropriations Authorization Act, P.L. 107-296, designed
to support important reforms at the Department of Justice
and the FBI. In addition, concerns raised by this
Committee about the need for training on basic legal
concepts, such as probable cause, spurred the FBI to issue
an electronic communication on September 16, 2002, from
the FBI's Office of the General Counsel to all field
offices explaining this critical legal standard.
Additionally, this report may assist the senior leadership
of the DOJ and FBI, and other persons responsible for
ensuring that FISA is used properly in defending against
international terrorists.
II. OVERVIEW OF FBI OVERSIGHT IN THE 107th CONGRESS
A. The Purposes of FBI Oversight: Enhancing Both Security and Liberty
Beginning in the summer of 2001 and continuing through the
remainder of the 107th Congress, the Senate Judiciary
Committee conducted intensive, bipartisan oversight of the
FBI. The purpose of this comprehensive oversight effort was
to reverse the trend of the prior decades, during which the
FBI operated with only sporadic congressional oversight
focused on its handling of specific incidents, such as the
standoffs at Ruby Ridge, Idaho, or Waco, Texas, and the
handling of the Peter Lee and Wen Ho Lee espionage cases. It
was the view of both Democrats and Republicans on the
Judiciary Committee that the FBI would benefit from a more
hands-on approach and that congressional oversight would help
identify problems within the FBI as a first step to ensuring
that appropriate resources and attention were focused on
constructive solutions. In short, the goal of this oversight
was to ensure that the FBI would perform at its full
potential. Strong and bipartisan oversight, while at times
potentially embarrassing to any law enforcement agency,
strengthens an agency in the long run. It helps inform the
crafting of legislation to improve an agency's performance,
and it casts light on both successes and problems in order to
spur agencies to institute administrative reforms of their
own accord. In short, the primary goal of FBI oversight is to
help the FBI be as great and effective as it can be.
So, too, is oversight important in order to protect the
basic liberties upon which our country is founded. Past
oversight efforts, such as the Church Committee in the 1970s,
have exposed abuses by law enforcement agencies such as the
FBI. It is no coincidence that these abuses have come after
extended periods when the public and the Congress did not
diligently monitor the FBI's activities. Even when agencies
such as the FBI operate with the best of intentions (such as
protecting our nation from foreign threats such as Communism
in the 1950s and 1960s and fighting terrorism now), if left
unchecked, the immense power wielded by such government
agencies can lead them astray. Public scrutiny and debate
regarding the actions of government agencies as powerful as
the DOJ and the FBI are critical to explaining actions to the
citizens to whom these agencies are ultimately accountable.
In this way, congressional oversight plays a critical role in
our democracy.
The importance of the dual goals of congressional
oversight--improving FBI performance and protecting liberty--
have been driven home since the 9/11 attacks. Even prior to
the terrorist attacks, the Judiciary Committee had begun
oversight and held hearings that had exposed several
longstanding problems at the FBI, such as the double standard
in discipline between line agents and senior executive
officials. The 9/11 attacks on our country have forever
redefined the stakes riding upon the FBI's success in
fulfilling its mission to fight terrorism. It is no luxury
that the FBI perform at its peak level--it is now a
necessity.
At the same time, the increased powers granted to the FBI
and other law enforcement agencies after the 9/11 attacks, in
the USA PATRIOT Act, which Members of this Committee helped
to craft, and through the actions of the Attorney General and
the President, have made it more important than ever that
Congress fulfills its role in protecting the liberty of our
nation. Everyone would agree that winning the war on
terrorism would be a hollow victory indeed if it came only at
the cost of the very liberties we are fighting to preserve.
By carefully overseeing the DOJ's and FBI's use of its broad
powers, Congress can help to ensure that the false choice
between fundamental liberty and basic security is one that
our government never takes upon itself to make. For these
reasons, in the post-9/11 world, FBI oversight has been, and
will continue to be, more important than ever.
B. Judiciary Committee FBI Oversight Activities in the 107th Congress
1. Full Committee FBI Oversight Hearings
Beginning in July 2001, after Senator Leahy became
chairman, the Senate Judiciary Committee held hearings that
focused on certain longstanding and systemic problems at the
FBI. These included hearings concerning: (1) the FBI's
antiquated computer systems and its belated upgrade program;
(2) the FBI's ``circle the wagons'' mentality, wherein those
who report flaws in the FBI are punished for their frankness;
and (3) the FBI's flawed internal disciplinary procedures and
``double standard'' in discipline, in which line FBI agents
can be seriously punished for the same misconduct that only
earns senior FBI executives a slap on the wrist. Such flaws
were exemplified by the disciplinary actions taken (and not
taken) by the FBI and DOJ after the incidents at Waco, Texas,
and Ruby Ridge, Idaho, and the apparent adverse career
effects experienced by FBI agents participating in those
investigations who answered the duty call to police their
own.
The Committee's pre-9/11 FBI oversight efforts culminated
with the confirmation hearings of the new FBI Director,
Robert S. Mueller, III. Beginning on July 30, 2001, the
Committee held two days of extensive hearings on Director
Mueller's confirmation and closely questioned Director
Mueller about the need to correct the information technology
and other problems within the FBI. In conducting these
hearings, Committee Members understood the critical role of
the FBI Director in protecting our country from criminal,
terrorist, and clandestine intelligence activities and
recognized the many challenges facing the new Director.
Director Mueller was questioned very closely on the issue
of congressional oversight, engaging in four rounds of
questioning over two days. In response to one of Senator
Specter's early questions, Director Mueller stated ``I
understand, firmly believe in the right and the power of
Congress to engage in its oversight function. It is not only
a right, but it is a duty.''
In response to a later question, Director Mueller stated:
``I absolutely agree that Congress is entitled to oversight
of the ongoing responsibilities of the FBI and the Department
of Justice. You mentioned at the outset the problems that you
have had over a period of getting documents in ongoing
investigations. And as I stated before and I'll state again,
I think it is incumbent upon the FBI and the Department of
Justice to attempt to accommodate every request from Congress
swiftly and, where it cannot accommodate or believes that
there are confidential issues that have to be raised, to
bring to your attention and articulate with some specificity,
not just the fact that there's ongoing investigation, not
just the fact that there is an ongoing or an upcoming trial,
but with specificity why producing the documents would
interfere with either that trial or for some other reason or
we believed covered by some issue of confidentiality.''
Incoming Director Mueller, at that time, frankly
acknowledged that there was room for improvement in these
areas at the FBI and vowed to cooperate with efforts to
conduct congressional oversight of the FBI in the future.
Director Mueller assumed his duties on September 4, 2001,
just one week before the terrorist attacks. After the
terrorist attacks, there was a brief break from FBI
oversight, as the Members of the Judiciary Committee worked
with the White House to craft
[[Page S2740]]
and pass the USA PATRIOT Act. In that new law, the Congress
responded to the DOJ's and FBI's demands for increased powers
but granted many of those powers only on a temporary basis,
making them subject to termination at the end of 2005. The
``sunset'' of the increased FISA surveillance powers
reflected the promise that the Congress would conduct
vigilant oversight to evaluate the FBI's performance both
before and after 9/11. Only in that way could Congress and
the public be assured that the DOJ and FBI needed the
increased powers in the first place, and were effectively and
properly using these new powers to warrant extension of the
sunset.
Passage of the USA PATRIOT Act did not solve the
longstanding and acknowledged problems at the FBI. Rather,
the 9/11 attacks created a new imperative to remedy systemic
shortcomings at the FBI. Review of the FBI's pre-9/11
performance is not conducted to assess blame. The blame lies
with the terrorists. Rather, such review is conducted to help
the FBI prevent future attacks by not repeating the mistakes
of the past. Thus, the enactment of the USA PATRIOT Act did
not obviate the need to oversee the FBI; it augmented that
need.
Within weeks of passage of the USA PATRIOT Act, the Senate
Judiciary Committee held hearings with senior DOJ officials
on implementation of the new law and other steps that were
being taken by the Administration to combat terrorism. The
Committee heard testimony on November 28, 2001, from
Assistant Attorney General Michael Chertoff and, on December
6, 2001, from Attorney General Ashcroft. In response to
written questions submitted in connection with the latter
hearing, DOJ confirmed that shortly after the USA PATRIOT Act
had been signed by the President on October 26, 2001, DOJ
began to press the Congress for additional changes to relax
FISA requirements, including expansion of the definition of
``foreign power'' to include individual, non-U.S. persons
engaged in international terrorism. DOJ explained that this
proposal was to address the threat posed by a single foreign
terrorist without an obvious tie to another person, group, or
state overseas. Yet, when asked to ``provide this Committee
with information about specific cases that support your claim
to need such broad new powers,'' DOJ was silent in its
response and named no specific cases showing such a need, nor
did it say that it could provide such specificity even in a
classified setting. In short, DOJ sought more power but was
either unwilling or unable to provide an example as to why.
Beginning in March 2002, the Committee convened another
series of hearings monitoring the FBI's performance and its
efforts to reform itself. On March 21, 2002, the Judiciary
Committee held a hearing on the DOJ Inspector General's
report on the belated production of documents in the Oklahoma
City bombing case. That hearing highlighted longstanding
problems in the FBI's information technology and training
regarding the use of, and access to, records. It also
highlighted the persistence of a ``head-in-the-sand''
approach to problems, where shortcomings are ignored rather
than addressed and the reporting of problems is
discouraged rather than encouraged.
On April 9, 2002, the Committee held a hearing on the
Webster Commission's report regarding former FBI Agent and
Russian spy Robert Hanssen's activities. That hearing exposed
a deep-seated cultural bias against the importance of
security at the FBI. One important finding brought to light
at that hearing was the highly inappropriate handling of
sensitive FISA materials in the time after the 9/11 attacks.
In short, massive amounts of the most sensitive and highly
classified materials in the FBI's possession were made
available on an unrestricted basis to nearly all FBI
employees. Even more disturbing, this action was taken
without proper consultation with the FBI's own security
officials.
On May 8, 2002, the Judiciary Committee held an oversight
hearing at which FBI Director Mueller and Deputy Attorney
General Thompson testified regarding their efforts to reshape
the FBI and the DOJ to address the threat of terrorism. It
was at this hearing that the so-called ``Phoenix Memorandum''
was publicly discussed for the first time. Director Mueller
explained in response to one question:
``[T]he Phoenix electronic communication contains
suggestions from the agent as to steps that should be taken,
or he suggested taking to look at other flight schools . . .
. He made a recommendation that we initiate a program to look
at flight schools. That was received at Headquarters. It was
not acted on by September 11. I should say in passing that
even if we had followed those suggestions at that time, it
would not, given what we know since September 11, have
enabled us to prevent the attacks of September 11. But in the
same breath I should say that what we learned from instances
such as that is much about the weaknesses of our approach to
counterterrorism prior to September 11.''
In addition, Director Mueller first discussed at this
hearing that FBI agents in Minnesota had been frustrated by
Headquarters officials in obtaining a FISA warrant in the
Zacharias Moussaoui investigation before the 9/11 attacks,
and that one agent seeking the warrant had said that he was
worried that Moussaoui would hijack an airplane and fly it
into the World Trade Center.
On June 6, 2002, the Committee held another hearing at
which Director Mueller testified further regarding the
restructuring underway at the FBI. Significantly, that
hearing also provided the first public forum for FBI Chief
Division Counsel Coleen Rowley of the Minneapolis Division to
voice constructive criticism about the FBI. Her criticisms,
the subject of a lengthy letter sent to Director Mueller on
May 21, 2002, which was also sent to Members of Congress,
echoed many of the issues raised in this Committee's
oversight hearings. Special Agent Rowley testified about
``careerism'' at the FBI and a mentality at FBI Headquarters
that led Headquarters agents to more often stand in the way
of field agents than to support them. She cited the Moussaoui
case as only the most high profile instance of such an
attitude. Special Agent Rowley also described a FBI computer
system that prevented agents from accessing their own records
and conducting even the most basic types of searches. In
short, Special Agent Rowley's testimony reemphasized the
importance of addressing the FBI's longstanding problems, not
hiding from them, in the post-9/11 era.
As the head of the Department of Justice as a whole, the
Attorney General has ultimate responsibility for the
performance of the FBI. On July 25, 2002, the Judiciary
Committee held an oversight hearing at which Attorney General
Ashcroft testified. The Committee and the Attorney General
engaged in a dialogue regarding the performance of the DOJ on
many areas of interest, including the fight against
terrorism. Among other things discussed at this hearing were
the Attorney General's plans to implement the Terrorism
Information and Prevention System (TIPS), which would have
enlisted private citizens to monitor ``suspicious''
activities of other Americans. After questioning on the
subject, Attorney General Ashcroft testified that he would
seek restrictions on whether and how information generated
through TIPS would be retained. Later, as part of the
Homeland Security legislation, TIPS was prohibited
altogether.
On September 10, 2002, the Committee held an oversight
hearing specifically focusing on issues related to the FISA.
Leading experts from the DOJ, from academia, and from the
civil liberties and national security legal communities
participated in a rare public debate on the FISA. That
hearing brought before the public an important discussion
about the reaches of domestic surveillance using FISA and the
meaning of the USA PATRIOT Act. In addition, through the
efforts of the Judiciary Committee, the public learned that
this same debate was already raging in private. The FISA
Court (FISC) had rejected the DOJ's proposed procedure for
implementing the USA PATRIOT Act, and the FISA Court of
Review was hearing its first appeal in its 20-year-plus
existence to address important issues regarding these USA
PATRIOT Act amendments to the FISA. The Committee requested
that the FISA Court of Review publicly release an
unclassified version of the transcript of the oral argument
and its opinion, which the Court agreed to do and furnished
to the Committee. Thus, only through the bipartisan oversight
work of the Judiciary Committee was the public first informed
of the landmark legal opinion interpreting the FISA and the
USA PATRIOT Act amendments overruling the FISC's position,
accepting some of the DOJ's legal arguments, but rejecting
others.
These are only the full Judiciary Committee hearings
related to FBI oversight issues in the 107th Congress. The
Judiciary Committee's subcommittees also convened numerous,
bipartisan oversight hearings relating to the FBI's
performance both before and after 9/11.
2. Other oversight activities: classified hearings, written requests,
and informal briefings
The Judiciary Committee and its Members have fulfilled
their oversight responsibilities through methods other than
public hearings as well. Particularly with respect to FISA
oversight, Members of the Judiciary Committee and its staff
conducted a series of closed hearings and briefings, and made
numerous written inquiries on the issues surrounding both the
application for a FISA search warrant of accused
international terrorist Zacharias Moussaoui's personal
property before the 9/11 attacks and the post-9/11
implementation of the USA PATRIOT Act. As with all of our FBI
oversight, these inquiries were intended to review the
performance of the FBI and DOJ in order to improve that
performance in the future.
The Judiciary Committee and its Members also exercised
their oversight responsibilities over the DOJ and the FBI
implementation of the FISA through written inquiries, written
hearing questions, and other informal requests. These efforts
included letters to the Attorney General and the FBI Director
from Senator Leahy on November 1, 2001, and May 23, 2002, and
from Senators Leahy, Specter, and Grassley on June 4, June
13, July 3, and July 31, 2002. In addition, these Members
sent letters requesting information from the FISA Court and
FISA Court of Review on July 16, July 31, and September 9,
2002. Such oversight efforts are important on a day-to-day
basis because they are often the most efficient means of
monitoring the activities of the FBI and DOJ.
3. DOJ and FBI non-responsiveness
Particularly with respect to our FISA oversight efforts, we
are disappointed with the non-responsiveness of the DOJ and
FBI. Although the FBI and the DOJ have sometimes cooperated
with our oversight efforts, often, legitimate requests went
unanswered
[[Page S2741]]
or the DOJ answers were delayed for so long or were so
incomplete that they were of minimal use in the oversight
efforts of this Committee. The difficulty in obtaining
responses from DOJ prompted Senator Specter to ask the
Attorney General directly, ``how do we communicate with you
and are you really too busy to respond?''
Two clear examples of such reticence on the part of the DOJ
and the FBI relate directly to our FISA oversight efforts.
First, Chairman Sensenbrenner and Ranking Member Conyers of
the House Judiciary Committee issued a set of 50 questions on
June 13, 2002, in order to fulfill the House Judiciary
Committee's oversight responsibilities to monitor the
implementation of the USA PATRIOT Act, including its
amendments to FISA. In connection with the July 25, 2002,
oversight hearing with the Attorney General, Chairman Leahy
posed the same questions to the Department on behalf of the
Senate Judiciary Committee. Unfortunately, the Department
refused to respond to the Judiciary Committee with answers to
many of these legitimate questions. Indeed, it was only after
Chairman Sensenbrenner publicly stated that he would subpoena
the material that the Department provided any response at all
to many of the questions posed, and to date some questions
remain unanswered. Senator Leahy posed a total of 93
questions, including the 50 questions posed by the leadership
of the House Judiciary Committee. While the DOJ responded to
56 of those questions in a series of letters on July 29,
August 26, and December 23, 2002, thirty-seven questions
remain unanswered. In addition, the DOJ attempted to respond
to some of these requests by providing information not to the
Judiciary Committees, which had made the request, but to the
Intelligence Committees. Such attempts at forum shopping by
the Executive Branch are not a productive means of
facilitating legitimate oversight.
Second, the FBI and DOJ repeatedly refused to provide
Members of the Judiciary Committee with a copy of the FISA
Court's May 17, 2002, opinion rejecting the DOJ's proposed
implementation of the USA PATRIOT Act's FISA amendments. This
refusal was made despite the fact that the opinion, which was
highly critical of aspects of the FBI's past performance on
FISA warrants, was not classified and bore directly upon the
meaning of provisions in the USA PATRIOT Act authored by
Members of the Judiciary Committee. Indeed, the Committee
eventually had to obtain the opinion not from the DOJ but
directly from the FISA Court, and it was only through these
efforts that the public was first made aware of the important
appeal being pursued by the DOJ and the legal positions being
taken by the Department on the FISA Amendments.
In both of these instances, and in others, the DOJ and FBI
have made exercise of our oversight responsibilities
difficult.
It is our sincere hope that the FBI and DOJ will
reconsider their approach to congressional oversight in
the future. The Congress and the American people deserve
to know what their government is doing. Certainly, the
Department should not expect Congress to be a ``rubber
stamp'' on its requests for new or expanded powers if
requests for information about how the Department has
handled its existing powers have been either ignored or
summarily paid lip service.
III. FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS PLAGUING THE
FBI
A. Overview and Conclusions
The Judiciary Committee held a series of classified
briefings for the purpose of reviewing the processing of FISA
applications before the terrorist attacks on September 11,
2001. The Judiciary Committee sought to determine whether any
problems at the FBI in the processing of FISA applications
contributed to intelligence failures before September 11th;
to evaluate the implementation of the changes to FISA enacted
pursuant to the USA PATRIOT Act; and to determine whether
additional legislation is necessary to improve this process
and facilitate congressional oversight and public confidence
in the FISA and the FBI.
We specifically sought to determine whether the systemic
problems uncovered in our FBI oversight hearings commenced in
the summer of 2001 contributed to any shortcomings that may
have affected the FBI counterterrorism efforts prior to the
9/11 attacks. Not surprisingly, we conclude that they did.
Indeed, in many ways the DOJ and FBI's shortcomings in
implementing the FISA--including but not limited to the time
period before the 9/11 attacks--present a compelling case for
both comprehensive FBI reform and close congressional
oversight and scrutiny of the justification for any further
relaxation of FISA requirements. FISA applications are of the
utmost importance to our national security. Our review
suggests that the same fundamental problems within the FBI
that have plagued the agency in other contexts also prevented
both the FBI and DOJ from aggressively pursuing FISA
applications in the period before the 9/11 attacks. Such
problems caused the submission of key FISA applications to
the FISA Court to have been significantly delayed or not
made. More specifically, our concerns that the FBI and DOJ
did not make effective use of FISA before making demands on
the Congress for expanded FISA powers in the USA PATRIOT Act
are bolstered by the following findings:
(1) The FBI and Justice Department were setting too high a
standard to establish that there is ``probable cause'' that a
person may be an ``agent of a foreign power'' and, therefore,
may be subject to surveillance pursuant to FISA;
(2) FBI agents and key Headquarters officials were not
sufficiently trained to understand the meanings of crucial
legal terms and standards in the FISA process;
(3) Prior problems between the FBI and the FISA Court that
resulted in the Court barring one FBI agent from appearing
before it for allegedly filing inaccurate affidavits may have
``chilled'' the FBI and DOJ from aggressively seeking FISA
warrants (although there is some contradictory information on
this matter, we will seek to do additional oversight on this
question);
(4) FBI Headquarters fostered a culture that stifled rather
than supported aggressive and creative investigative
initiatives from agents in the field; and
(5) The FBI's difficulties in properly analyzing and
disseminating information in its possession caused it not to
seek FISA warrants that it should have sought. These
difficulties are due to:
(a) a lack of proper resources dedicated to intelligence
analysis;
(b) a ``stove pipe'' mentality where crucial intelligence
is pigeonholed into a particular unit and may not be shared
with other units;
(c) High turnover of senior agents at FBI Headquarters
within critical counterterrorism and foreign intelligence
units;
(d) Outmoded information technology that hinders access to,
and dissemination of, important intelligence; and
(e) A lack of training for FBI agents to know how to use,
and a lack of requirements that they do use, the technology
available to search for and access relevant information.
We have found that, in combination, all of these factors
contributed to the intelligence failures at the FBI prior to
the 9/11 attacks.
We are also conscious of the extraordinary power FISA
confers on the Executive branch. FISA contains safeguards,
including judicial review by the FISA Court and certain
limited reporting requirements to congressional intelligence
committees, to ensure that this power is not abused. Such
safeguards are no substitute, however, for the watchful
eye of the public and the Judiciary Committees, which have
broader oversight responsibilities for DOJ and the FBI. In
addition to reviewing the effectiveness of the FBI's use
of its FISA power, this Committee carries the important
responsibility of checking that the FBI does not abuse its
power to conduct surveillance within our borders.
Increased congressional oversight is important in
achieving that goal.
From the outset, we note that our discussion will not
address any of the specific facts of the case against
Zacharias Moussaoui that we have reviewed in our closed
inquiries. That case is still pending trial, and, no matter
how it is resolved, this Committee is not the appropriate
forum for adjudicating the allegations in that case. Any of
the facts recited in this report that bear on the substance
of the Moussaoui case are already in the public record. To
the extent that this report contains information we received
in closed sessions, that information bears on abstract,
procedural issues, and not any substantive issues relating to
any criminal or national security investigation or
proceeding. This is an interim report of what we have
discovered to date. We hope to and should continue this
important oversight in the 108th Congress.
B. Allegations Raised by Special Agent Rowley's Letter
The Judiciary Committee had initiated its FISA oversight
inquiry several months before the revelations in the dramatic
letter sent on May 21, 2002, to FBI Director Mueller by
Special Agent Coleen Rowley. Indeed, it was this Committee's
oversight about the FBI's counterintelligence operations
before the 9/11 attacks that in part helped motivate SA
Rowley to write this letter to the Director.
The observations and critiques of the FBI's FISA process in
this letter only corroborated problems that the Judiciary
Committee was uncovering. In her letter, SA Rowley detailed
the problems the Minneapolis agents had in dealing with FBI
Headquarters in their unsuccessful attempts to seek a FISA
warrant for the search of Moussaoui's lap top computer and
other personal belongings. These attempts proved fruitless,
and Moussaoui's computer and personal belongings were not
searched until September 11th, 2001, when the Minneapolis
agents were able to obtain a criminal search warrant after
the attacks of that date. According to SA Rowley, with the
exception of the fact of those attacks, the information
presented in the warrant application establishing probable
cause for the criminal search warrant was exactly the same as
the facts that FBI Headquarters earlier had deemed inadequate
to obtain a FISA search warrant.
In her letter, SA Rowley raised many issues concerning the
efforts by the agents assigned to the Minneapolis Field
Office to obtain a FISA search warrant for Moussaoui's
personal belongings. Two of the issues she raised were
notable. First, SA Rowley corroborated that many of the
cultural and management problems within the FBI (including
what she referred to as ``careerism'') have significant
effects on the FBI's law enforcement and intelligence
gathering activities. This led to a perception among the
Minneapolis agents that FBI Headquarters personnel had
frustrated their efforts to obtain a FISA warrant by raising
[[Page S2742]]
unnecessary objections to the information submitted by
Minneapolis, modifying and removing that information, and
limiting the efforts by the Minneapolis Field Office to
contact other agencies for relevant information to bolster
the probable cause for the warrant. These concerns echoed
criticisms that this Committee has heard in other contexts
about the culture of FBI management and the effect of the
bureaucracy in stifling initiative by FBI agents in the
field.
In making this point, SA Rowley provided specific examples
of the frustrating delays and roadblocks erected by
Headquarters agents in the Moussaoui investigation:
``For example at one point, the Supervisory Special Agent
at FBIHQ posited that the French information could be
worthless because it only identified Zacharias Moussaoui by
name and he, the SSA, didn't know how many people by that
name existed in France. A Minneapolis agent attempted to
surmount that problem by quickly phoning the FBI's Legal
Attache (Legat) in Paris, France, so that a check could be
made of the French telephone directories. Although the Legat
in France did not have access to all of the French telephone
directories, he was able to quickly ascertain that there was
only one listed in the Paris directory. It is not known if
this sufficiently answered the question, for the SSA
continued to find new reasons to stall.
``Eventually, on August 28, 2001, after a series of e-mails
between Minneapolis and FBIHQ, which suggest that the FBIHQ
SSA deliberately further undercut the FISA effort by not
adding the further intelligence information which he had
promised to add that supported Moussaoui's foreign power
connection and making several changes in the wording of the
information that had been provided by the Minneapolis agent,
the Minneapolis agents were notified that the NSLU Unit Chief
did not think there was sufficient evidence of Moussaoui's
connection to a foreign power. Minneapolis personnel are, to
this date, unaware of the specifics of the verbal
presentations by the FBIHQ SSA to NSLU or whether anyone in
NSLU ever was afforded the opportunity to actually read for
him/herself all of the information on Moussaoui that had been
gathered by the Minneapolis Division and [redacted;
classified]. Obviously[,] verbal presentations are far
more susceptible to mis-characterization and error.''
Even after the attacks had commenced, FBI Headquarters
discouraged Minneapolis from securing a criminal search
warrant to examine Moussaoui's belongings, dismissing the
coordinated attack on the World Trade Center and Pentagon as
a coincidence.
Second, SA Rowley's letter highlighted the issue of the
apparent lack of understanding of the applicable legal
standards for establishing ``probable cause'' and the
requisite statutory FISA requirements by FBI personnel in the
Minneapolis Division and at FBI Headquarters. This issue will
be discussed in more detail below.
C. Results of Investigation
1. The Mishandling of the Moussaoui FISA Application
Apart from SA Rowley's letter and her public testimony, the
Judiciary Committee and its staff found additional
corroboration that many of her concerns about the handling of
the Moussaoui FISA application for a search warrant were
justified.
At the outset, it is helpful to review how Headquarters
``adds value'' to field offices in national security
investigations using FISA surveillance tools. Headquarters
has three functions in such investigations. The first
function is the ministerial function of actually assembling
the FISA application in the proper format for review by the
DOJ's Office of Intelligence Policy and Review OIPR and the
FISA Court. The other two functions are more substantive and
add ``value'' to the FISA application. The first substantive
function is to assist the field by being experts on the legal
aspects of FISA, and to provide guidance to the field as to
the information needed to meet the statutory requirements of
FISA. The second function is to supplement the information
from the field in order to establish or strengthen the
showing that there is ``probable cause'' that the FISA target
was an ``agent of a foreign power,'' by integrating
additional relevant intelligence information both from within
the FBI and from other intelligence or law enforcement
organizations outside the FBI. It is with respect to the
latter, substantive functions that Headquarters fell short in
the Moussaoui FISA application and, as a consequence, never
got to the first, more ministerial, function.
Our investigation revealed that the following events
occurred in connection with this FISA application. We
discovered that the Supervisory Special Agent (SSA) involved
in reviewing the Moussaoui FISA request was assigned to the
Radical Fundamentalist Unit (RFU) of the International
Terrorism Operations Section of the FBI's Counterterrorism
Division. The Unit Chief of the RFU was the SSA's immediate
supervisor. When the Minneapolis Division submitted its
application for the FISA search warrant for Moussaoui's
laptop computer and other property, the SSA was assigned the
responsibility of processing the application for approval.
Minneapolis submitted its application for the FISA warrant in
the form of a 26-page Electronic Communication (EC), which
contained all of the information that the Minneapolis agents
had collected to establish that Moussaoui was an agent of a
foreign power at the time. The SSA's responsibilities
included integrating this information submitted by the
Minneapolis division with information from other sources that
the Minneapolis agents were not privy to, in order to
establish there was probable cause that Moussaoui was an
agent of a foreign power. In performing this fairly
straightforward task, FBI Headquarters personnel failed
miserably in at least two ways.
First, most surprisingly, the SSA never presented the
information submitted by Minneapolis and from other sources
in its written, original format to any of the FBI's attorneys
in the National Security Law Unit (NSLU). The Minneapolis
agents had submitted their information in the 26-page EC and
a subsequent letterhead memorandum (LHM), but neither was
shown to the attorneys. Instead, the SSA relied on short,
verbal briefings to the attorneys, who opined that based on
the information provided verbally by the SSA they could not
establish that there was probable cause that Moussaoui was an
agent of a foreign power. Each of the attorneys in the NSLU
stated they did not receive documents on the Moussaoui FISA,
but instead only received a short, verbal briefing from the
SSA. As SA Rowley noted, however, ``verbal presentations are
far more susceptible to mis-characterization and error.''
The failure of the SSA to provide the 26-page Minneapolis
EC and the LHM to the attorneys, and the failure of the
attorneys to review those documents, meant that the
consideration by Headquarters officials of the evidence
developed by the Minneapolis agents was truncated. The
Committee has requested, but not yet received, the full 26-
page Minneapolis EC (even, inexplicably, in a classified
setting).
Second, the SSA's task was to help bolster the work of the
Minneapolis agents and collect information that would
establish probable cause that a ``foreign power'' existed,
and that Moussaoui was its ``agent.'' Indeed, sitting in the
FBI computer system was the Phoenix memorandum, which senior
FBI officials have conceded would have provided sufficient
additional context to Moussaoui's conduct to have established
probable cause. (Joint Inquiry Hearing, Testimony of Eleanor
Hill, Staff Director, September 24, 2002, p. 19: ``The [FBI]
attorneys also told the Staff that, if they had been aware of
the Phoenix memo, they would have forwarded the FISA request
to the Justice Department's Office of Intelligence Policy
Review (OIPR). They reasoned that the particulars of the
Phoenix memo changed the context of the Moussaoui
investigation and made a stronger case for the FISA warrant.
None of them saw the Phoenix memo before September 11.'')
Yet, neither the SSA nor anyone else at Headquarters
consulted about the Moussaoui application ever conducted any
computer searches for electronic or other information
relevant to the application. Even the much touted ``Woods
Procedures'' governing the procedures to be followed by FBI
personnel in preparing FISA applications do not require
Headquarters personnel to conduct even the most basic subject
matter computer searches or checks as part of the preparation
and review of FISA applications.
2. General Findings.
We found that key FBI personnel involved in the FISA
process were not properly trained to carry out their
important duties. In addition, we found that the structural,
management, and resource problems plaguing the FBI in general
contributed to the intelligence failures prior to the 9/11
attacks. (The Joint Inquiry by the Senate and House Select
Committee on Intelligence similarly concluded that the FBI
needs to ``establish and sustain independent career tracks
within the FBI that recognize and provide incentives for
demonstrated skills and performance of counterterrorism
agents and analysts; . . . implement training for agents in
the effective use of analysts and analysis in their
work;?improve national security law training of FBI
personnel;?and finally solve the FBI's persistent and
incapacitating information technology problems.'' (Final
Report, Recommendations, p. 6).) Following are some of the
most salient facts supporting these conclusions.
First, key FBI personnel responsible for protecting our
country against terrorism did not understand the law. The SSA
at FBI Headquarters responsible for assembling the facts in
support of the Moussaoui FISA application testified before
the Committee in a closed hearing that he did not know that
``probable cause'' was the applicable legal standard for
obtaining a FISA warrant. In addition, he did not have a
clear understanding of what the probable cause standard
meant. The SSA was not a lawyer, and he was relying on FBI
lawyers for their expertise on what constituted probable
cause. In addition to not understanding the probable cause
standard, the SSA's supervisor (the Unit Chief)
responsible for reviewing FISA applications did not have a
proper understanding of the legal definition of the
``agent of a foreign power'' requirement. Specifically, he
was under the incorrect impression that the statute
required a link to an already identified or ``recognized''
terrorist organization, an interpretation that the FBI and
the supervisor himself admitted was incorrect. Thus, key
FBI officials did not have a proper understanding of
either the relevant burden of proof (probable cause) or
the substantive element of proof (agent of a foreign
power). This fundamental breakdown in training on an
important intelligence matter is of serious concern to
this Committee.
[[Page S2743]]
Second, the complaints contained in the Rowley letter about
problems in the working relationship between field offices
and FBI Headquarters are more widespread. There must be a
dynamic relationship between Headquarters and field offices
with Headquarters providing direction to the efforts of
agents in the field when required. At the same time,
Headquarters personnel should serve to support field agents,
not to stifle initiative by field agents and hinder the
progress of significant cases. The FBI's Minneapolis office
was not alone in this complaint. Our oversight also confirmed
that agents from the FBI's Phoenix office, whose
investigation and initiative resulted in the so-called
``Phoenix Memorandum,'' warning about suspicious activity in
U.S. aviation schools, also found their initiative dampened
by a non-responsive FBI Headquarters.
So deficient was the FISA process that, according to at
least one FBI supervisor, not only were new applications not
acted upon in a timely manner, but the surveillance of
existing targets of interest was often terminated, not
because the facts no longer warranted surveillance, but
because the application for extending FISA surveillance could
not be completed in a timely manner. Thus, targets that
represented a sufficient threat to national security that the
Department had sought, and a FISA Court judge had approved, a
FISA warrant were allowed to break free of surveillance for
no reason other than the FBI and DOJ's failure to complete
and submit the proper paper work. This failure is
inexcusable.
Third, systemic management problems at FBI Headquarters led
to a lack of accountability among senior FBI officials. A
revolving door at FBI Headquarters resulted in agents who
held key supervisory positions not having the required
specialized knowledge to perform their jobs competently. A
lack of proper communication produced a system where no
single person was held accountable for mistakes. Therefore,
there was little or no incentive to improve performance.
Fourth, the layers of FBI and DOJ bureaucracy also helped
lead to breakdowns in communication and serious errors in the
materials presented to the FISA Court. The Committee learned
that in the year before the Moussaoui case, one FBI
supervisor was barred from appearing before the FISC due to
inaccurate information presented in sworn affidavits to the
Court. DOJ explained in a December 23, 2002, response to
written questions from the July 25, 2002, oversight hearing
that:
``One FBI supervisory special agent has been barred from
appearing before the Court. In March of 2001, the government
informed the Court of an error contained in a series of FISA
applications. This error arose in the description of a
``wall'' procedure. The Presiding Judge of the Court at the
time, Royce Lamberth, wrote to the Attorney General
expressing concern over this error and barred one
specifically-named FBI agent from appearing before the Court
as a FISA affiant. . . . FBI Director Freeh personally met
twice with then-Presiding Judge Lamberth to discuss the
accuracy problems and necessary solutions.''
As the Committee later learned from review of the FISA
Court's May 17, 2002, opinion, that Court had complained of
75 inaccuracies in FISA affidavits submitted by the FBI, and
the DOJ and FBI had to develop new procedures to ensure
accuracy in presentations to that Court. These so-called
``Woods Procedures'' were declassified at the request of the
authors and were made publicly available at the Committee's
hearing on June 6, 2002. As DOJ further explained in its
December 23, 2002, answers to written questions submitted on
July 25, 2002:
``On April 6, 2001, the FBI disseminated to all field
divisions and relevant Headquarters divisions a set of new
mandatory procedures to be applied to all FISAs within the
FBI. These procedures known as the ``Woods procedures,'' are
designed to help minimize errors in and ensure that the
information provided to the Court is accurate. . . They have
been declassified at the request of your Committee.''
DOJ describes the inaccuracies cited in the FISA Court
opinion as related to ``errors in the `wall' procedure'' to
keep separate information used for criminal prosecution and
information collected under FISA and used for foreign
intelligence. However, this does not appear to be the only
problem the FBI and DOJ were having in the use of FISA.
An FBI document obtained under the Freedom of Information
Act, which is attached to this report as Exhibit D, suggests
that the errors committed were far broader. The document is a
memorandum dated April 21, 2000, from the FBI's
Counterterrorism Division, that details a series of
inaccuracies and errors in handling FISA applications and
wiretaps that have nothing whatsoever to do with the
``wall.'' Such mistakes included videotaping a meeting when
videotaping was not allowed under the relevant FISA Court
order, continuing to intercept a person's email after there
was no authorization to do so, and continuing a wiretap on a
cell phone even after the phone number had changed to a new
subscriber who spoke a different language from the target.
This document highlights the fact apart from the problems
with applications made to the FISC, that the FBI was
experiencing more systemic problems related to the
implementation of FISA orders. These issues were unrelated to
the legal questions surrounding the ``wall,'' which was in
effect long before 1999. The document notes that the number
of inaccuracies grew by three-and-one-half times from 1999 to
2000. We recommend that additional efforts to correct the
procedural, structural, and training problems in the FISA
process would go further toward ensuring accuracy in the FISA
process than simply criticizing the state of the law.
One legitimate question is whether the problems inside the
FBI and between the FBI and the FISA Court either caused FBI
Headquarters to be unduly cautious in proposing FISA warrants
or eroded the FISA Court's confidence in the DOJ and the FBI
to the point that it affected the FBI's ability to conduct
terrorism and intelligence investigations effectively. SA
Rowley opines in her letter that in the year before ``the
September 11th acts of terrorism, numerous alleged IOB
[Intelligence Oversight Board] violations on the part of FBI
personnel had to be submitted to the FBI's Office of
Professional Responsibility (OPR) as well as the IOB. I
believe the chilling effect upon all levels of FBI agents
assigned to intelligence matters and their managers hampered
us from aggressive investigation of terrorists.'' (Rowley
letter, pp. 7-8, fn. 7). Although the belated release of the
FISA Court's opinion of May 17, 2002, provided additional
insight into this issue, further inquiry is needed.
Fifth, the FBI's inability to properly analyze and
disseminate information (even from and between its own
agents) rendered key information that it collected relatively
useless. Had the FBI put together the disparate strands of
information that agents from around the country had furnished
to Headquarters before September 11, 2001, additional steps
could certainly have been taken to prevent the 9/11 attacks.
So, while no one can say with certainty that the 9/11 attacks
could have been prevented, in our view, it is also beyond
reasonable dispute that more could have been done in the
weeks before the attacks to try to prevent them.
Certain of our findings merit additional discussion, and
such discussion follows.
3. FBI's Misunderstanding of Legal Standards Applicable to the FISA
a. The FISA Statutory Standard: ``Agent of a Foreign Power''
In order to obtain either a search warrant or an
authorization to conduct electronic surveillance pursuant to
FISA, the FBI and Justice Department must establish before
the FISA Court probable cause that the targeted person is an
``agent of a foreign power.'' An agent of a foreign power is
defined as ``any person who . . . knowingly aids or abets any
person in the conduct of [certain] activities.'' Those
certain activities include ``international terrorism,'' and
one definition of ``foreign power'' includes groups that
engage in international terrorism. Accordingly, in the
Moussaoui case, to obtain a FISA warrant the FBI had to
collect only enough evidence to establish that there was
``probable cause'' to believe that Moussaoui was the
``agent'' of an ``international terrorist group'' as defined
by FISA.
However, even the FBI agents who dealt most with FISA did
not correctly understand this requirement. During a briefing
with Judiciary Committee staff in February 2002, the
Headquarters counterterrorism Unit Chief of the unit
responsible for handling the Moussaoui FISA application
stated that with respect to international terrorism cases,
FISA warrants could only be obtained for ``recognized''
terrorist groups (presumably those identified by the
Department of State or by the FBI itself or some other
government agency). The Unit Chief later admitted that he
knew that this was an incorrect understanding of the law, but
it was his understanding at the time the application was
pending. Additionally, during a closed hearing on July 9,
2002, the Supervisory Special Agent (``SSA'') who actually
handled the Moussaoui FISA application at Headquarters also
mentioned that he was trying to establish whether Moussaoui
was an ``agent of a recognized foreign power''.
Nowhere, however, does the statutory definition require
that the terrorist group be an identified organization that
is already recognized (such as by the United States
Department of State) as engaging in terrorist activities.
Indeed, even the FBI concedes this point. Thus, there was no
support whatsoever for key FBI officials' incorrect
understanding that the target of FISA surveillance must be
linked to such an identified group in the time before 9/
11. This misunderstanding colored the handling of requests
from the field to conduct FISA surveillance in the crucial
weeks before the 9/11 attacks. Instead of supporting such
an application, key Headquarters personnel asked the field
agents working on this investigation to develop additional
evidence to prove a fact that was unnecessary to gain
judicial approval under FISA. It is difficult to
understand how the agents whose job included such a heavy
FISA component could not have understood that statute. It
is difficult to understand how the FBI could have so
failed its own agents in such a crucial aspect of their
training.
The Headquarters personnel misapplied the FISA
requirements. In the context of this case, the foreign power
would be an international terrorist group, that is, ``a group
engaged in international terrorism or activities in
preparation therefore.'' A ``group'' is not defined in the
FISA, but in common parlance, and using other legal
principles, including criminal conspiracy, a group consists
of two or more persons whether identified or not. It is our
opinion that such a ``group''
[[Page S2744]]
may exist, even if not a group ``recognized'' by the
Department of State.
The SSA's other task would be to help marshal evidence
showing probable cause that Moussaoui was an agent of that
group. In applying the ``totality of the circumstances,'' as
defined in the case of Illinois v. Gates, 462 U.S. 213
(1983), any information available about Moussaoui's ``actual
contacts'' with the group should have been considered in
light of other information the FBI had in order to understand
and establish the true probable nature of those contacts.
(The Supreme Court's leading case on probable cause; it is
discussed in more detail in the next section of this report.)
It is only with consideration of all the information known to
the FBI that Moussaoui's contacts with any group could be
properly characterized in determining whether he was an agent
of such a group.
In making this evaluation, the fact, as recited in the
public indictment, that Moussaoui ``paid $6,800 in cash'' to
the Minneapolis flight school, without adequate explanation
for the source of this funding, would have been a highly
probative fact bearing on his connections to foreign groups.
Yet, it does not appear that this was a fact that the FBI
Headquarters agents considered in analyzing the totality of
the circumstances. The probable source of that cash should
have been a factor that was considered in analyzing the
totality of the circumstances. So too would the information
in the Phoenix memorandum have been helpful. It also was not
considered, as discussed further below. In our view, the FBI
applied too cramped an interpretation of probable cause and
``agent of a foreign power'' in making the determination of
whether Moussaoui was an agent of a foreign power. FBI
Headquarters personnel in charge of reviewing this
application focused too much on establishing a nexus between
Moussaoui and a ``recognized'' group, which is not legally
required. Without going into the actual evidence in the
Moussaoui case, there appears to have been sufficient
evidence in the possession of the FBI which satisfied the
FISA requirements for the Moussaoui application. Given this
conclusion, our primary task is not to assess blame on
particular agents, the overwhelming majority of whom are to
be commended for devoting their lives to protecting the
public, but to discuss the systemic problems at the FBI that
contributed to their inability to succeed in that endeavor.
b. The Probable Cause Standard
i. Supreme Court's Definition of ``Probable Cause''.--
During the course of our investigation, the evidence we have
evaluated thus far indicates that both FBI agents and FBI
attorneys do not have a clear understanding of the legal
standard for probable cause, as defined by the Supreme Court
in the case of Illinois v. Gates, 462 U.S. 213 (1983). This
is such a basic legal principle that, again, it is impossible
to justify the FBI's lack of complete and proper training on
it. In Gates, then-Associate Justice Rehnquist wrote for the
Court:
``Standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have
no place in the magistrate's decision. While an effort to fix
some general, numerically precise degree of certainty
corresponding to ``probable cause'' may not be helpful, it is
clear that ``only the probability, and not a prima facie
showing, of criminal activity is the standard of probable
cause.'' (462 U.S. at 236 (citations omitted.)
The Court further stated:
For all these reasons, we conclude that it is wiser to
abandon the ``twopronged test'' established by our decisions
in Aguilar and Spinelli. In its place we reaffirm the
totality of the circumstances analysis that traditionally has
informed probable cause determinations. The task of the
issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set
forth in the affidavit before him, including the
``veracity'' and ``basis of knowledge'' of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a ``substantial
basis for . . . conclud[ing]'' that probable cause
existed. We are convinced that this flexible, easily
applied standard will better achieve the accommodation of
public and private interests that the Fourth Amendment
requires than does the approach that has developed from
Aguilar and Spinelli.''
Accordingly, it is clear that the Court rejected
``preponderance of the evidence'' as the standard for
probable cause and established a standard of ``probability''
based on the ``totality of the circumstances.''
ii. The FBI's Unnecessarily High Standard for Probable
Cause.--Unfortunately, our review has revealed that many
agents and lawyers at the FBI did not properly understand the
definition of probable cause and that they also possessed
inconsistent understandings of that term. In the portion of
her letter to Director Mueller discussing the quantum of
evidence needed to reach the standard of probable cause, SA
Rowley wrote that ``although I thought probable cause existed
(`probable cause' meaning that the proposition has to be more
likely than not, or if quantified, a 51% likelihood), I
thought our United States Attorney's Office, (for a lot of
reasons including just to play it safe), in regularly
requiring much more than probable cause before approving
affidavits, (maybe, if quantified, 75%-80% probability and
sometimes even higher), and depending upon the actual AUSA
who would be assigned, might turn us down.'' The Gates case
and its progeny do not require an exacting standard of proof.
Probable cause does not mean more likely than not, but only a
probability or substantial chance of the prohibited conduct
taking place. Moreover, ``[t]he fact that an innocent
explanation may be consistent with the facts alleged . . .
does not negate probable cause.''
On June 6, 2002, the Judiciary Committee held an open
hearing on the FBI's conduct of counterterrorism
investigations. The Committee heard from Director Mueller and
DOJ Inspector General Glenn Fine on the first panel and from
SA Rowley on the second panel. The issue of the probable
cause standard was specifically raised with Director Mueller,
citing the case of Illinois v. Gates, and Director Mueller
was asked to comment in writing on the proper standard was
asked for establishing probable cause. The FBI responded in
an undated letter to Senator Specter and with the subsequent
transmission of an electronic communication (E.C.) dated
September 16, 2002. In the E.C., the FBI's General Counsel
reviewed the case law defining ``probable cause,'' in order
to clarify the definition of probable cause for FBI personnel
handling both criminal investigations and FISA applications.
At the June 6th hearing, SA Rowley reviewed her discussion
of the probable cause standard in her letter. During that
testimony three issues arose. First, by focusing on the
prosecution of a potential case, versus investigating a case,
law enforcement personnel, both investigators and
prosecutors, may impose on themselves a higher standard than
necessary to secure a warrant. This prosecution focus is one
of the largest hurdles that the FBI is facing as it tries to
change its focus from crime fighting to the prevention of
terrorist attacks. It is symptomatic of a challenge facing
the FBI and DOJ in nearly every aspect of their new mission
in preventing terrorism. Secondly, prosecutors, in gauging
what amount of evidence reaches the probable cause standard,
may calibrate their decision to meet the de facto standard
imposed by the judges, who may be imposing a higher standard
than is required by law. Finally, SA Rowley opined that some
prosecutors and senior FBI officials may set a higher
standard due to risk-averseness, which is caused by
``careerism.''
SA Rowley's testimony was corroborated in our other
hearings. During a closed hearing, in response to the
following questions, a key Headquarters SSA assigned to
terrorism matters stated that he did not know the legal
standard for obtaining a warrant under FISA.
``Sen. Specter: . . . [SSA], what is your understanding of
the legal standard for a FISA warrant?
[SSA]: I am not an attorney, so I would turn all of those
types of questions over to one of the attorneys that I work
with in the National Security Law Unit.
Question: Well, did you make the preliminary determination
that there was not sufficient facts to get a FISA warrant
issued?
[SSA]: That is the way I saw it.
Question: Well, assuming you would have to prove there was
an agent and there was a foreign power, do you have to prove
it beyond a reasonable doubt? Do you have to have a
suspicion? Where in between?
[SSA]: I would ask my attorney in the National Security Law
Unit that question.
Question: Did anybody give you any instruction as to what
the legal standard for probable cause was?
[SSA]: In this particular instance, no.''
The SSA explained that he had instruction on probable cause
in the past, but could not recall that training. It became
clear to us that the SSA was collecting information without
knowing when he had enough and, more importantly, making
``preliminary'' decisions and directing field agents to take
investigating steps without knowing the applicable legal
standards. While we agree that FBI agents and supervisory
personnel should consult regularly with legal experts at the
National Security Law Unit, and with the DOJ and U.S.
Attorneys Offices, supervisory agents must also have
sufficient facility for evaluating probable cause in order to
provide support and guidance to the field.
Unfortunately, our oversight revealed a similar confusion
as to the proper standard among other FBI officials. On July
9, 2002, the Committee held a closed session on this issue,
and heard from the following FBI personnel: Special Agent
``G,'' who had been a counterterrorism supervisor in the
Minneapolis Division of the FBI and worked with SA Rowley;
the Supervisory Special Agent (``the SSA'') from FBI
Headquarters referred to in SA Rowley's letter (and referred
to the discussion above); the SSA's Unit Chief (``the Unit
Chief''); a very senior attorney from the FBI's Office of
General Counsel with national security responsibilities
(``Attorney #1''); and three attorneys assigned to the FBI's
Office of General Counsel's National Security Law Unit
(``Attorney #2,'' ``Attorney #3,'' and ``Attorney #4''). The
purpose of the session was to determine how the Moussaoui
FISA application had been processed by FBI Headquarters
personnel. None of the personnel present, including the
attorneys, appeared to be familiar with the standard for
probable cause articulated in Illinois v. Gates, and none had
reviewed the case prior to the hearing, despite its
importance having been highlighted at the June 6th hearing
with the FBI Director. To wit:
[[Page S2745]]
Sen. Specter: . . . [Attorney #1] what is the legal
standard for probable cause for a warrant?
[Attorney #1]: A reasonable belief that the facts you are
trying to prove are accurate.
Question: Reason to believe?
[Attorney #1]: Reasonable belief.
Question: Reasonable belief?
[Attorney #1]: More probable than not.
Question: More probable than not?
[Attorney #1]: Yes, sir. Not a preponderance of the
evidence.
Question: Are you familiar with ``Gates v. Illinois''?
[Attorney #1]: No, sir.
However, ``more probable than not'' is not the standard;
rather, ``only the probability, and not a prima facie
showing, of criminal activity is the standard of probable
cause.'' (Gates, 462 U.S. at 36 (citations omitted). )
Similarly, Attorneys #2, #3, and #4 were also not familiar
with Gates. Under further questioning, Attorney #1 conceded
that the FBI, at that time, did not have written procedures
concerning the definition of ``probable cause'' in FISA
cases: ``On the FISA side of the house I don't think we have
any written guidelines on that.'' Additionally, Attorney #1
stated that ``[w]e need to have some kinds of facts that an
agent can swear to a reasonable belief that they are true,''
to establish that a person is an agent of a foreign power.
Giving a precise definition of probable cause is not an easy
task, as whether probable cause exists rests on factual and
practical considerations in a particular context. Yet, even
with the inherent difficulty in this standard we are
concerned that senior FBI officials offered definitions that
imposed heightened proof requirements. The issue of what is
required for ``probable cause'' is especially troubling
because it is not the first time that the issue had arisen
specifically in the FISA context. Indeed, the Judiciary
Committee confronted the issue of ``probable cause'' in the
FISA context in 1999, when the Committee initiated oversight
hearings of the espionage investigation of Dr. Wen Ho Lee.
Among the many issues examined was whether there was probable
cause to obtain FISA surveillance of Dr. Lee. In that case,
there was a disagreement as to whether probable cause existed
between the FBI and the DOJ, within the DOJ, and among
ourselves.
In 1999, Attorney General Janet Reno commissioned an
internal DOJ review of the Wen Ho Lee investigation. The
Attorney General's Review Team on the Handling of the Los
Alamos National Laboratory Investigation was headed by
Assistant United States Attorney Randy I. Bellows, a Senior
Litigation Counsel in the Office of the United States
Attorney for the Eastern District of Virginia. Mr. Bellows
submitted his exhaustive report on May 12, 2000 (the
``Bellows Report''), and made numerous findings of fact and
recommendations. With respect to the issue of probable cause,
Mr. Bellows concluded that:
``The final draft FISA application (Draft #3), on its face,
established probable cause to believe that Wen Ho Lee was an
agent of a foreign power, that is to say, a United States
person currently engaged in clandestine intelligence
gathering activities for or on behalf of the PRC which
activities involved or might involve violations of the
criminal laws of the United States . . . . Given what the FBI
and OIPR knew at the time, it should have resulted in the
submission of a FISA application, and the issuance of a FISA
order.''
The Bellows team concluded that OIPR had been too
conservative with the Wen Ho Lee FISA application, a
conservatism that may continue to affect the FBI's and DOJ's
handling of FISA applications. The team found that with
respect to OIPR's near-``perfect record'' before the FISA
Court (only one FISA rejection), ``[w]hile there is something
almost unseemly in the use of such a remarkable track record
as proof of error, rather than proof of excellence, it is
nevertheless true that this record suggests the use of `PC+,'
an insistence on a bit more than the law requires.''
The Bellows team made another finding of particular
pertinence to the instant issue. It found that ``[t]he
Attorney General should have been apprised of any rejection
of a FISA request . . . .'' In effect, FBI Headquarters
rejected the Minneapolis Division's request for a FISA
application, a decision that was not reported to then Acting
Director Thomas Pickard. Director Mueller has adopted a new
policy, not formally recorded in writing, that he be informed
of the denial within the FBI of any request for a FISA
application. However, in an informal briefing the weekend
after this new policy was publicly announced, the FBI lawyer
whom it most directly affected claimed to know nothing of the
new ``policy'' beyond what he had read in the newspaper. From
an oversight perspective, it is striking that the FBI and DOJ
were effectively on notice regarding precisely this issue:
that the probable cause test being applied in FISA
investigations was more stringent than legally required. We
appreciate the carefulness and diligence with which the
professionals at OIPR and the FBI exercise their duties in
processing FISA applications, which normally remain secret
and immune from the adversarial scrutiny to which criminal
warrants are subject. Yet, this persistent problem has two
serious repercussions. First, the FBI and DOJ appear to be
failing to take decisive action to provide in-depth training
to agents and lawyers on an issue of the utmost national
importance. We simply cannot continue to deny or ignore such
training flaws only to see them repeated in the future.
Second, when the DOJ and FBI do not apply or use the FISA
as fully or comprehensively as the law allows, pressure is
brought on the Congress to change the statute in ways that
may not be at all necessary. From a civil liberties
perspective, the high-profile investigations and cases in
which the FISA process appears to have broken down is too
easily blamed on the state of the law rather than on
inadequacies in the training of those responsible for
implementing the law. The reaction on the part of the DOJ and
FBI has been to call upon the Congress to relax FISA
standards rather than engage in the more time-consuming
remedial task of reforming the management and process to make
it work better. Many times such ``quick legislative fixes''
are attractive on the surface, but only operate as an excuse
to avoid correcting more fundamental problems.
4. The Working Relationship Between FBI Headquarters and Field Offices
Our oversight revealed that on more than one occasion FBI
Headquarters was not sufficiently supportive of agents in the
field who were exercising their initiative in an attempt to
carry out the FBI's mission. While at least some of this is
due to resource and staffing shortages, which the current
Director is taking action to address, there are broader
issues involved as well. Included in these is a deep-rooted
culture at the FBI that makes an assignment to Headquarters
unattractive to aggressive field agents and results in an
attitude among many who do work at Headquarters that is not
supportive of the field.
In addition to these cultural problems at the FBI, we
conclude that there are also structural and management
problems that contribute to the FBI's shortcomings as
exemplified in the implementation of the FISA. Personnel are
transferred in and out of key Headquarters jobs too quickly,
so that they do not possess the expertise necessary to carry
out their vital functions. In addition, the multiple layers
of supervision at Headquarters have created a bureaucratic
FBI that either will not or cannot respond quickly enough to
time-sensitive initiatives from the field. We appreciate that
the FBI has taken steps to cut through some of this
bureaucracy by requiring OIPR attorneys to have direct
contact with field agents working on particular cases.
In addition to hampering the implementation of FISA, these
are problems that the Judiciary Committee has witnessed
replayed in other contexts within the FBI. These root causes
must be addressed head on, so that Headquarters personnel at
the FBI view their jobs as supporting talented and aggressive
field agents.
The FBI has a key role in the FISA process. Under the
system designed by the FBI, a field agent and his field
supervisors must negotiate a series of bureaucratic levels in
order to even ask for a FISA warrant. The initial
consideration of a FISA application and evaluation of whether
statutory requirements are met is made by Supervisory Special
Agents who staff the numerous Headquarters investigative
units. These positions are critical and sensitive by their
very nature. No application can move forward to the attorneys
in the FBI's National Security Law Unit (NSLU) for further
consideration unless the unit SSA says so. In addition, no
matter may be forwarded to the DOJ lawyers at the OIPR
without the approval of the NSLU. These multiple layers of
review are necessary and prudent but take time.
The purpose of having SSAs in the various counterterrorism
units is so that those personnel may bring their experience
and skill to bear to bolster and enhance the substance of
applications sent by field offices. A responsible SSA will
provide strategic guidance to the requesting field division
and coordinate the investigative activities and efforts
between FBI Headquarters and that office, in addition to the
other field divisions and outside agencies involved in the
investigation. This process did not work well in the
Moussaoui case.
Under the FBI's system, an effective SSA should thoroughly
brief the NSLU and solicit its determination on the adequacy
of any application within a reasonable time after receipt. In
``close call'' investigations, we would expect the NSLU
attorneys to seek to review all written information forwarded
by the field office rather than rely on brief oral briefings.
In the case of the Moussaoui application forwarded from
Minneapolis, the RFU SSA merely provided brief, oral
briefings to NSLU attorneys and did not once provide that
office with a copy of the extensive written application for
their review. An SSA should also facilitate communication
between the OIPR, the NSLU, and those in the field doing the
investigation and constructing the application. That also did
not occur in this case.
By its very nature, having so many players involved in the
process allows internal FBI finger-pointing with little or no
accountability for mistakes. The NSLU can claim, as it does
here, to have acquiesced to the factual judgment of the SSAs
in the investigative unit. The SSAs, in turn, claim that they
have received no legal training or guidance and rely on the
lawyers at the NSLU to make what they term as legal
decisions. The judgment of the agents in the field, who are
closest to the facts of the case, is almost completely
disregarded.
Stuck in this confusing, bureaucratic maze, the seemingly
simple and routine business practices within key Headquarters
units
[[Page S2746]]
were flawed. As we note above, even routine renewals on
already existing FISA warrants were delayed or not obtained
due to the lengthy delays in processing FISA applications.
5. The Mishandling of the Phoenix Electronic Communication
The handling of the Phoenix EC represents another prime
example of the problems with the FBI's FISA system as well as
its faulty use of information technology. The EC contained
information that was material to the decision whether or not
to seek a FISA warrant in the Moussaoui case, but it was
never considered by the proper people. Even though the RFU
Unit Chief himself was listed as a direct addressee on the
Phoenix EC (in addition to others within the RFU and other
counterterrorism Units at FBI Headquarters), he claims that
he never even knew of the existence of such an EC until the
FBI's Office of Professional Responsibility (OPR) contacted
him months after the 9/11 attacks. Even after this
revelation, the Unit Chief never made any attempt to notify
the Phoenix Division (or any other field Division) that he
had not read the EC addressed to him. He issued no clarifying
instructions from his Unit to the field, which very naturally
must believe to this day that this Unit Chief is actually
reading and assessing the reports that are submitted to his
attention and for his consideration. The Unit Chief in
question here has claimed to be ``at a loss'' as to why he
did not receive a copy of the Phoenix EC at the time it was
assigned, as was the practice in the Unit at that time.
Apparently, it was routine in the Unit for analytic support
personnel to assess and close leads assigned to them without
any supervisory agent personnel reviewing their activities.
In the RFU, the two individuals in the support capacity
entered into service at the FBI in 1996 and 1998. The Phoenix
memo was assigned to one of these analysts as a ``lead'' by
the Unit's Investigative Assistant (IA) on or about July
30th, 2001. The IA would then accordingly give the Unit Chief
a copy of each EC assigned to personnel in the Unit for
investigation. The RFU Unit Chief claims to have never seen
this one. In short, the crucial information being collected
by FBI agents in the field was disappearing into a black hole
at Headquarters. To the extent the information was reviewed,
it was not reviewed by the appropriate people.
More disturbingly, this is a recurrent problem at the FBI.
The handling of the Minneapolis LHM and the Phoenix memo,
neither of which were reviewed by the correct people in the
FBI, are not the first times that the FBI has experienced
such a problem in a major case. The delayed production of
documents in the Oklahoma City bombing trial, for example,
resulted in significant embarrassment for the FBI in a case
of national importance. The Judiciary Committee held a
hearing during which the DOJ's own Inspector General
testified that the inability of the FBI to access its own
information base did and will have serious negative
consequences. Although the FBI is undertaking to update its
information technology to assist in addressing this problem,
the Oklahoma City case demonstrates that the issue is broader
than antiquated computer systems. As the report concluded,
``human error, not the inadequate computer system, was the
chief cause of the failure. . . .'' The report concluded that
problems of training and FBI culture were the primary causes
of the embarrassing mishaps in that case. Once again, the
FBI's and DOJ's failures to address such broad based problems
seem to have caused their recurrence in another context.
6. The FBI's Poor Information Technology Capabilities
On June 6, 2002, Director Mueller and SA Rowley testified
before the Senate Judiciary Committee on the search
capabilities of the FBI's Automated Case Support (ACS)
system. ACS is the FBI's centralized case management system,
and serves as the central electronic repository for the FBI's
official investigative textual documents. Director Mueller,
who was presumably briefed by senior FBI officials regarding
the abilities of the FBI's computers, testified that,
although the Phoenix memorandum had been uploaded to the ACS,
it was not used by agents who were investigating the
Moussaoui case in Minnesota or at Headquarters. According to
Director Mueller, the Phoenix memorandum was not accessible
to the Minneapolis field office or any other offices around
the country; it was only accessible to the places where it
had been sent: Headquarters and perhaps two other offices.
Director Mueller also testified that no one in the FBI had
searched the ACS for relevant terms such as ``aviation
schools'' or ``pilot training.'' According to Director
Mueller, he hoped to have in the future the technology in the
computer system to do that type of search (e.g., to pull out
any electronic communication relating to aviation), as it was
very cumbersome to do that type of search as of June 6, 2002.
SA Rowley testified that FBI personnel could only perform
one-word searches in the ACS system, which results in too
many results to review.
Within two weeks of the hearing, on June 14, 2002, both
Director Mueller (through John E. Collingwood, AD Office of
Public and Congressional Affairs) and SA Rowley submitted to
the Committee written corrections of their June 6, 2002,
testimony. The FBI corrected the record by stating that ACS
was implemented in all FBI field offices, resident agencies,
legal attache offices, and Headquarters on October 16, 1995.
In addition, it was, in fact, possible to search for multiple
terms in the ACS system, using Boolean connectors (e.g.,
hijacker or terrorist and flight adj school), and to refine
searches with other fields (e.g., document type). Rowley
confirmed the multiple search-term capabilities of ACS and
added that the specifics of ACS's search capabilities are not
widely known within the FBI.
We commend Director Mueller and SA Rowley for promptly
correcting their testimony as they became aware of the
incorrect description of the FBI's ACS system during the
hearing. Nevertheless, their corrections and statements
regarding FBI personnel's lack of knowledge of the ACS system
highlights a longstanding problem within the Bureau. An OIG
report, issued in July 1999, states that FBI personnel were
not well-versed in the ACS system or other FBI databases. An
OIG report of March 2002, which analyzed the causes for the
belated production of many documents in the Oklahoma City
bombing case, also concluded that the inefficient and complex
ACS system was a contributing factor in the FBI's failure to
provide hundreds of investigative documents to the defendants
in the Oklahoma City Bombing Case. In short, this Committee's
oversight has confirmed, yet again, that not only are the
FBI's computer systems inadequate but that the FBI does not
adequately train its own personnel in how to use their
technology.
7. The ``Revolving Door'' at FBI Headquarters
Compounding information technology problems at the FBI are
both the inexperience and attitude of ``careerist'' senior
FBI agents who rapidly move through sensitive supervisory
positions at FBI Headquarters. This ``ticket punching'' is
routinely allowed to take place with the acquiescence of
senior FBI management at the expense of maintaining critical
institutional knowledge in key investigative and analytical
units. FBI agents occupying key Headquarters positions have
complained to members of the Senate Judiciary Committee that
relocating to Washington, DC, is akin to a ``hardship''
transfer in the minds of many field agents. More often than
not, however, the move is a career enhancement, as the agent
is almost always promoted to a higher pay grade during or
upon the completion of the assignment. The tour at
Headquarters is usually relatively short in duration and the
agent is allowed to leave and return to the field.
To his credit, Director Mueller tasked the Executive Board
of the Special Agents Advisory Committee (SAAC) to report to
him on disincentives for Special Agents seeking
administrative advancement. They reported on July 1, 2002,
with the following results of an earlier survey:
``Less than 5% of the Agents surveyed indicated an interest
in promotion if relocation to FBIHQ was required. Of 35 field
supervisors queried, 31 said they would `step down' rather
than accept an assignment in Washington, D.C. All groups of
Agents (those with and without FBIHQ experience) viewed as
assignment at FBIHQ as very negative. Only 6% of those who
had previously been assigned there believed that the
experience was positive--the work was clerical, void of
supervisory responsibility critical to future field or other
assignments. Additionally, the FBIHQ supervisors were
generally powerless to make decisions while working in an
environment which was full of negativity, intimidation, fear
and anxiousness to leave.''
The SAAC report also contained serious criticism of FBI
management, stating:
``Agents across the board expressed reluctance to become
involved in a management system which they believe to [be]
hypocritical, lacking ethics, and one in which we lead by
what we say and not by example. Most subordinates believe and
most managers agreed that the FBI is too often concerned with
appearance over substance. Agents believed that management
decisions are often based on promoting one's self interest
versus the best interests of the FBI.''
There is a dire need for the FBI to reconsider and reform a
personnel system and a management structure that do not
create the proper incentives for its most capable and
talented agents to occupy its most important posts. The SAAC
recommended a number of steps to reduce or eliminate
``disincentives for attaining leadership within the Bureau.''
Congress must also step up to the plate and assess the
location pay differential for Headquarters transfers compared
to other transfers and other financial rewards for
administrative advancement to ensure that those agents with
relevant field experience and accomplishment are in critical
Headquarters positions.
Indeed, in the time period both before and after the
Moussaoui application was processed at Headquarters (and
continuing for months after the 9/11 attacks), most of the
agents in the pertinent Headquarters terrorism unit had less
than two years of experience working on such cases. In the
spring and summer of 2001, when Administration officials have
publicly acknowledged increased ``chatter'' internationally
about potential terrorist attacks, the Radical Fundamentalist
Unit at FBI Headquarters experienced the routinely high rate
of turnover in agent personnel as other units regularly did.
Not only was the Unit Chief replaced, but also one or more of
the four SSAs who reported to the Unit Chief was a recent
transfer into the Unit. These key personnel were to have
immediate and direct control over the fate of
[[Page S2747]]
the ``Phoenix memo'' and the Minneapolis Division's
submission of a FISA application for the personal belongings
of Moussaoui. While these supervisory agents certainly had
distinguished and even outstanding professional experience
within the FBI before being assigned to Headquarters, their
short tours in the specialized counterterrorism units raises
questions about the depth and scope of their training and
experience to handle these requests properly and, more
importantly, about the FBI's decision to allow such a key
unit to be staffed in such a manner.
Rather than staffing counterterrorism units with
Supervisory Special Agents on a revolving door basis, these
positions should be filled with a cadre of senior agents who
can provide continuity in investigations and guidance to the
field.
A related deficiency in FBI management practices was that
those SSAs making the decisions on whether any FISA
application moved out of an operational unit were not given
adequate training, guidance, or instruction on the practical
application of key elements of the FISA statute. As we stated
earlier, it seems incomprehensible that those very
individuals responsible for taking a FISA application past
the first step were allowed to apply their own individual
interpretations of critical elements of the law relating to
what constitutes a ``foreign power,'' ``acting as an agent of
a foreign power,'' ``probable cause,'' and the meaning of
``totality of the circumstances,'' before presenting an
application to the attorneys in the NSLU. We learned at the
Committee's hearing this past September 10th, a full year
after the terrorist attacks, that the FBI drafted
administrative guidelines that will provide for Unit Chiefs
and SSAs at Headquarters a uniform interpretation of how--and
just as importantly--when to apply probable cause or other
standards in FISA warrant applications.
All of these problems demonstrate that there is a dire need
for a thorough review of procedural and substantive practices
regarding FISA at the FBI and the DOJ. The Senate Judiciary
Committee needs to be even more vigilant in its oversight
responsibilities regarding the entire FISA process and the
FISA Court itself. The FISA process is not fatally flawed,
but rather its administration and coordination needs swift
review and improvement if it is to continue to be an
effective tool in America's war on terrorism.
IV. The Importance of Enhanced Congressional Oversight
An undeniable and distinguishing feature of the flawed FISA
implementation system that has developed at the DOJ and FBI
over the last 23 years is its secrecy. Both at the legal and
operational level, the most generalized aspects of the DOJ's
FISA activities have not only been kept secret from the
general public but from the Congress as well. As we stated
above, much of this secrecy has been due to a lack of
diligence on the part of Congress exercising its oversight
responsibility. Equally disturbing, however, is the
difficulty that a properly constituted Senate Committee,
including a bipartisan group of senior senators, had in
conducting effective oversight of the FISA process when we
did attempt to perform our constitutional duties.
The Judiciary Committee's ability to conduct its inquiry
was seriously hampered by the initial failure of the DOJ and
the Administrative Office of the United States Courts to
provide to the Committee an unclassified opinion of the FISA
Court relevant to these matters. As noted above, we only
received this opinion on August 22, 2002, in the middle of
the August recess.
Under current law there is no requirement that FISA Court
opinions be made available to Congressional committees or the
public. The only statutory FISA reporting requirement is for
an unclassified annual report of the Attorney General to the
Administrative Office of the United States Courts and to
Congress setting forth with respect to the preceding calendar
year (a) the total number of applications made for orders and
extensions of orders approving electronic surveillance under
Title I, and (b) the total number of such orders and
extensions either granted, modified, or denied. These reports
do not disclose or identify unclassified FISA Court opinions
or disclose the number of individuals or entities targeted
for surveillance, nor do they cover FISA Court orders for
physical searches, pen registers, or records access.
Current law also requires various reports from the Attorney
General to the Intelligence and Judiciary Committees that are
not made public. These reports are used for Congressional
oversight purposes, but do not include FISA Court opinions.
When the Act was passed in 1978, it required the Intelligence
Committees for the first five years after enactment to report
respectively to the House of Representatives and the Senate
concerning the implementation of the Act and whether the Act
should be amended, repealed, or permitted to continue in
effect without amendment. Those public reports were issued in
1979-1984 and discussed one FISA Court opinion issued in
1981, which related to the Court's authority to issue search
warrants without express statutory jurisdiction.
The USA PATRIOT Act of 2001 made substantial amendments to
FISA, and those changes are subject to a sunset clause under
which they shall generally cease to have effect on December
31, 2005. That Act did not provide for any additional
reporting to the Congress or the public regarding
implementation of these amendments or FISA Court opinions
interpreting them.
Oversight of the entire FISA process is hampered not just
because the Committee was initially denied access to a single
unclassified opinion but because the Congress and the public
get no access to any work of the FISA Court, even work that
is unclassified. This secrecy is unnecessary, and allows
problems in applying the law to fester. There needs to be a
healthy dialogue on unclassified FISA issues within Congress
and the Executive branch and among informed professionals and
interested groups. Even classified legal memoranda submitted
by the DOJ to, and classified opinions by, the FISA Court can
reasonably be redacted to allow some scrutiny of the issues
that are being considered. This highly important body of FISA
law is being developed in secret, and, because they are ex
parte proceedings, without the benefit of opposing sides
fleshing out the arguments as in other judicial contexts, and
without even the scrutiny of the public or the Congress.
Resolution of this problem requires considering legislation
that would mandate that the Attorney General submit annual
public reports on the number of targets of FISA surveillance,
search, and investigative measures who are United States
persons, the number of criminal prosecutions where FISA
information is used and approved for use, and the
unclassified opinions and legal reasoning adopted by the FISA
Court and submitted by the DOJ.
As the recent litigation before the FISA Court of Review
demonstrated, oversight also bears directly on the protection
of important civil liberties. Due process means that the
justice system has to be fair and accountable when the system
breaks down.
Many things are different now since the tragic events of
last September, but one thing that has not changed is the
United States Constitution. Congress must work to guarantee
the civil liberties of our people while at the same time meet
our obligations to America's national security. Excessive
secrecy and unilateral decision making by a single branch of
government is not the proper method of striking that all
important balance. We hope that, joining together, the
Congress and the Executive Branch can work in a bipartisan
manner to best serve the American people on these important
issues. The stakes are too high for any other approach.
Patrick Leahy,
U.S. Senator.
Arlen Specter,
U.S. Senator.
Charles E. Grassley,
U.S. Senator.
Mr. SPECTER. I ask unanimous consent that the response of the
Department of Justice dated February 20, 2003 be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of Justice,
Office of Legislative Affairs,
Washington, DC, February 20, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This is to follow up on outstanding
questions from the Committee's hearings on June 6, 2002, at
which FBI Director Mueller testified, a closed hearing on
July 9, 2002, at which seven FBI personnel testified, and a
September 10, 2002, hearing at which an Associate Deputy
Attorney General testified on the FISA process. During this
latter hearing, and in follow-up letters, dated September 24,
2002 and October 1, 2002, Senator Specter asked for
additional information about the circumstances leading up to
the FBI's issuance of guidance on the probable cause standard
and the number of FBI requests for FISA warrants between June
6, 2002 and September 16, 2002.
In July 2002, the General Counsel's Office undertook to
draft a comprehensive memorandum to provide FBI field and
headquarters personnel with a practitioner's guide to the
FISA process and the changes resulting from the USA PATRIOT
Act. A section of that guidance was to be devoted to a
refresher discussion of the probable cause standard. Near the
end of that month, however, a new General Counsel reported to
the FBI and reviewed the initial draft. After discussions
with attorneys in the FBI's National Security Law Unit and
the Justice Department, it was determined that the guidance
would be issued in three separate memoranda. One would
provide a broad overview of the FISA process; one would cover
recent revisions to the limitations on the sharing of FISA-
derived information; and one would clarify the probable cause
standard.
These three memoranda were issued in September 2002 and
copies are enclosed for your convenience. The 15-page
overview of the FISA process was finalized and posted on the
FBI intranet on September 12, 2002. The 11-page guidance on
the new information sharing procedures was issued on
September 18, 2002, and later superceded by the November 18,
2002 decision of the Foreign Intelligence Surveillance Court
of Review which approved the Attorney General's March 6, 2002
Intelligence Sharing Procedures for Foreign Intelligence and
Foreign Counterintelligence Investigations Conducted by the
FBI. The clarification memorandum on the probable cause
standard was released on September 16, 2002 and I am advised
that, as a
[[Page S2748]]
matter of courtesy, a copy was delivered to Senator Specter's
office on that date.
In light of the November 18, 2002, decision of the Foreign
Intelligence Surveillance Court of Review, the Department
issued ``field guidance'' on intelligence sharing and FISA
issues on December 24, 2002, which was sent to all United
States Attorneys, all Anti-Terrorism Task Force coordinators
and all Special Agents of the FBI. It consisted of three
documents: (1) a memorandum jointly issued by the Deputy
Attorney General and the Director of the FBI discussing the
intelligence sharing procedures for foreign intelligence and
foreign counterintelligence investigations, including a chart
summarizing the March 6, 2002 Intelligence Sharing
Procedures; (2) the Attorney General's March 6, 2002
memorandum on Intelligence Sharing Procedures for Foreign
Intelligence and Counterintelligence Investigations conducted
by the FBI; and (3) a memorandum from the Deputy Attorney
General summarizing the November 18, 2002, decision of
Foreign Intelligence Surveillance Court of Review. An
electronic copy of the field guidance was provided to the
Judiciary Committee on January 17, 2003 (an additional
courtesy copy is enclosed).
Also on December 24, 2002, the Deputy Attorney General
issued a memorandum instructing the Counsel for Intelligence
Policy, the Assistant Attorney General for the Criminal
Division, and the Director of the FBI to ``jointly establish
and implement a training curriculum for all Department
lawyers and FBI agents who work on foreign intelligence or
counterintelligence investigations, both in Washington, DC
and in the field, including Assistant United States Attorneys
designated under the Department's March 6, 2002 Intelligence
Sharing Procedures. At a minimum, the training shall address
the FISA process, the importance of accuracy in FISA
applications, the legal standards (including probable cause)
set by FISA, coordination with law enforcement and with the
Intelligence Community, and the proper storing and handling
of classified information.'' A copy of the December 24, 2002,
training memorandum is enclosed.
Senator Specter's letter of October 1, 2002, asked as an
additional follow-up question about the number of FBI
requests for FISA warrants between Colleen Rowley's June 6,
2002, appearance before the Judiciary Committee and the
September 16, 2002, issuance of the probable cause
memorandum. The number of FBI applications to the Foreign
Intelligence Surveillance Court (FISC) for FISA searches and
surveillances during this time period is classified at the
SECRET level and is being delivered to the Committee through
the Office of Senate Security under separate cover and in
accordance with the longstanding Executive branch practices
on the sharing of classified intelligence information with
Congress. Please note that the total annual number of FISA
applications for orders authorizing electronic surveillance
filed by the government and the total annual number of such
applications either granted, modified, or denied by the FISC
are not classified and are provided annually to the
Administrative Office of the United States Court and to
Congress under section 1807 of FISA.
The question of what probable cause standard was used on
FISA applications for warrants during that time was posed to
supervisors in the National Security Law Unit and in the
Office of Intelligence Policy and Review. They responded that
the applications--and their discussions about those
applications--reflect that the agents and attorneys involved
in the FISA process understood and applied the correct
probable cause standard in their analyses of the relevant
evidence. Based on their observations, the staff's
understanding of probable cause--whether based on a reading
of Illinois v. Gates, 462 U.S. 213 (1983), or of any of the
other numerous authoritative judicial statements of the
probable cause standard--did not change with the issuance of
the probable cause memorandum. The standard they employed was
consistent with Illinois v. Gates both before and after they
received the memorandum.
I hope that this information is helpful. If you would like
further assistance on this or on any other matter, please do
not hesitate to contact me.
Sincerely,
Jamie E. Brown,
Acting Assistant Attorney General.
Mr. SPECTER. The oversight is going to continue on this matter. We
are dealing with a constitutional responsibility of the Congress, that
is the Senate and the Judiciary Committee, to conduct oversight on the
Department of Justice and on the Federal Bureau of Investigation. This
inquiry has demonstrated to this Senator that such oversight is sorely
needed.
When I was District Attorney of Philadelphia and an assistant
district attorney before that time, I had occasion to deal with a great
many applications for search warrants. To find now that the key FBI
personnel entrusted with the responsibility to apply for warrants under
the Foreign Intelligence Surveillance Act, to get information on agents
of foreign powers, at a time when the United States is threatened by
terrorism, and they do not know what the right standard is, is just
scandalous.
It has already been detailed on the public record that had they
followed the right standard, and had the FBI gotten the computer of
Zacarias Moussaoui, that 9/11 might have been prevented.
Then when the Judiciary Committee pursues the issue more than a month
later at a subsequent hearing, and finds that the key FBI personnel,
including their attorneys, do not know the right standard, it is just
incredible. Then when the FBI Director does not respond to inquiries as
to what the standards are, and days, weeks, and months follow, I wonder
what has happened with many matters where terrorists may be plotting
other attacks and our law enforcement officials are not doing the job.
This does raise the very fundamental question of whether the FBI is
capable of handling counterterrorism in the United States, and what
standards are being applied. Senator Leahy, Senator Grassley, and I
have introduced further legislation requiring more reporting. There is
a very important issue about civil liberties, but it all turns on
appropriate application of the law, and that certainly has not been
followed.
I will be sending a copy of this statement to FBI Director Mueller
tomorrow when it is in print, and these issues will be raised at the
hearing which is scheduled for next Tuesday. We have a hearing
scheduled which will include Attorney General Ashcroft, FBI Director
Robert Mueller, CIA Director George Tenet, and Secretary of Homeland
Defense Tom Ridge. I am urging Chairman Hatch to break it up and to
have only one of those individuals appear. If we have all four of them
at one time, we will only be hearing opening statements from the
Senators and opening statements from the individuals, and along about
1:15, when nobody has gone to lunch, is when we will really get to
serious questioning, and the hearing will not exactly be fruitful. So
we really need to take these very important individuals one at a time.
So stay tuned on some questions for FBI Director Mueller.
I ask unanimous consent to print the letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, September 24, 2002.
Hon. Robert Mueller,
Director, Federal Bureau of Investigation,
Washington, DC.
Dear Director Mueller: In a hearing before the Judiciary
Committee on June 6, 2002, I questioned you and Special Agent
Colleen Rowley about the erroneous standards being applied by
the FBI on applications for warrants under the Foreign
Intelligence Surveillance Act. I specifically called your
attention to the appropriate standards in Illinois v. Gates.
On July 10, 2002, I wrote to you concerning a closed door
hearing on July 9, 2002 where seven FBI personnel including
four attorneys were still unfamiliar with the appropriate
standard for probable cause of a FISA warrant under Gates.
At a Judiciary Committee hearing on September 10, 2002, I
again raised these issues with a representative of the
Department of Justice asking why I had not heard about any
action taken by the FBI on these issues.
On September 12, 2002, my office received an undated letter
from Assistant Director John E. Collingwood (copy enclosed)
which was a totally inadequate response. My office has since
been furnished with a copy of a memorandum from the Federal
Bureau of Investigation dated September 16, 2002, entitled
``Probable Cause'' which references the Gates case.
I would like an explanation from you as to why it took the
FBI so long to disseminate information on the standard for
probable cause under Gates for a FISA warrant.
Sincerely,
Arlen Specter.
____
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, September 12, 2002.
Hon. Arlen Specter,
Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Specter: I am writing in response to your
letter to Director Mueller dated July 10, 2002 regarding the
standards applied to applications under the Foreign
Intelligence Surveillance Act (FISA).
As you know, the events of September 11, 2001 caused the
entire Government to review all of its programs to identify
any revisions which may help to prevent another terrorist
attack. The FISA review process is critical to our
counterterrorism mission and, even before September 11th, we
were working with the Department of Justice (DOJ), as well as
the FISA Court, to simplify and expedite the FISA procedures.
We have made significant progress including implementation of
the
[[Page S2749]]
FISA procedures to ensure accuracy (known as the ``Woods
Procedures''), a copy of which has been provided to the
Committee.
In addition, we have been crafting new guidance, in
consultation with DOJ, to address the FISA process as
modified by the USA PATRIOT Act. This guidance will also
address the concerns raised in your letter and your meeting
with FBI personnel on July 9, 2002. We anticipate approval of
the guidance shortly and will immediately disseminate it to
field offices for implementation. A copy will be provided to
the Committee as well.
I appreciate your concerns and your support in these
critical matters. Please contact me if you have any
questions.
Sincerely,
John E. Collingwood,
Assistant Director, Office of
Public and Congressional Affairs.
____
U.S. Senate,
Washington, DC, October 1, 2002.
Hon. Robert Mueller,
Director, Federal Bureau of Investigation,
Washington, DC.
Dear Director Mueller: Supplementing my letter of September
24, 2002, I would like to know how many requests the FBI made
for warrants under the Foreign Intelligence Surveillance Act
from June 10, 2002, the date of the Judiciary Committee
hearing with you and Special Agent Colleen Rowley, and
September 16, 2002, the date on the FBI memorandum citing the
Gates case.
I would also like to know the specifics on what standard of
probable cause was used on the applications for warrants
under FISA during that period.
Sincerely,
Arlen Specter.
____
Exhibit 1
U.S. Senate,
Washington, DC, July 10, 2002.
Hon. Robert Mueller,
Director, Federal Bureau of Investigation,
Washington, DC.
Dear Director: In a hearing before the Judiciary Committee
on June 6, 2002, I called your attention to the standard on
probable cause in the opinion of then-Associate Justice
Rehnquist in Illinois v. Gates, 462 U.S. 213, 236 (1983)
(citations omitted) as follows:
As early as Locke v. United States, 7 Cranch. 339, 348, 3
L.Ed. 364 (1813), Chief Justice Marshall observed, in a
closely related context, that ``the term `probable cause,'
according to its usual acceptation, means less than evidence
which would justify condemnation. . . . It imports a seizure
made under circumstances which warrant suspicion.'' More
recently, we said that ``the quanta . . . of proof''
appropriate in ordinary judicial proceedings are inapplicable
to the decision to issue a warrant. Finely-tuned standards
such as proof beyond a reasonable doubt or by a preponderance
of the evidence, useful in formal trials, have no place in
the magistrate's decision. While an effort to fix some
general, numerically precise degree of certainty
corresponding to ``probable cause'' may not be helpful, it is
clear that ``only the probability, and not a prima facie
showing, of criminal activity is the standard of probable
cause.''
In a closed door hearing yesterday, seven FBI personnel
handling FISA warrant applications were questioned, including
four attorneys.
A fair summary of their testimony demonstrated that no one
was familiar with Justice Rehnquist's definition from Gates
and no one articulated an accurate standard for probable
cause.
I would have thought that the FBI personnel handling FISA
applications would have noted that issue from the June 6th
hearing; or, in the alternative, that you are other
supervisory personnel would have called it to their
attention.
It is obvious that these applications, which are frequently
made, are of the utmost importance to our national security
and your personnel should not be applying such a high
standard that precludes submission of FISA applications to
the Foreign Intelligence Surveillance Court.
I believe the Judiciary Committee will have more to say on
this subject but I wanted to call this to your attention
immediately so that you could personally take appropriate
corrective action.
Sincerely,
Arlen Specter.
____
Department of Justice,
Federal Bureau of Investigation,
Washington, DC.
Hon. Arlen Specter,
Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Specter: I am writing in response to your
letter to Director Mueller dated July 10, 2002 regarding the
standards applied to applications under the Foreign
Intelligence Surveillance Act (FISA).
As you know, the events of September 11, 2001 caused the
entire Government to review all of its programs to identify
any revisions which may help to prevent another terrorist
attack. The FISA review process is critical to our
counterterrorism mission and, even before September 11th, we
were working with the Department of Justice (DOJ), as well as
the FISA Court, to simplify and expedite the FISA procedures.
We have made significant progress including implementation of
the FISA procedures to ensure accuracy (known as the ``Woods
Procedures''), a copy of which has been provided to the
Committee.
In addition, we have been crafting new guidance, in
consultation with DOJ, to address the FISA process as
modified by the USA PATRIOT Act. This guidance will also
address the concerns raised in your letter and your meeting
with FBI personnel on July 9, 2002. We anticipate approval of
the guidance shortly and will immediately disseminate it to
field offices for implementation. A copy will be provided to
the Committee as well.
I appreciate your concerns and your support in these
critical matters. Please contact me if you have any
questions.
Sincerely,
John E. Collingwood,
Assistant Director, Office of
Public and Congressional Affairs.
____
Exhibit 2
Federal Bureau of Investigation
To: All Divisions.
From: Office of the General Counsel.
probable cause
Synopsis: The purpose of this Electronic Communication is
to clarify the meaning of probable cause.
Details: In recent legislative hearings, questions have
been raised about the concept of probable cause as it applies
to the Foreign Intelligence Surveillance Act (FISA). While
FBI Agents receive substantial legal training and have ample
experience applying the concept in their daily work, it is
nonetheless helpful to review the case law defining probable
cause. Accordingly, the Office of the General Counsel
prepared the following summary for the benefit of all FBI
Agents.
In Illinois versus Gates, 462 U.S. 213 (1983, the Supreme
Court explained that the probable cause standard is a
practical, nontechnical concept which deals with
probabilities--not hard certainties--derived from the
totality of the circumstances in a factual situation.
Probable cause to believe a particular contention is
determined by evaluating ``the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act;'' it is a ``fluid
concept . . . not readily, or even usefully, reduced to a
neat set of legal rules.'' 462 U.S. at 231-32.
The courts have broadly defined the parameters of probable
cause. While it requires more than an unfounded suspicion,
courts have repeatedly explained that probable cause requires
a lesser showing than the rigorous evidentiary standards
employed in trial proceedings. In Gates, 462 U.S. at 235, the
Supreme Court explained that probable cause is less demanding
than the evidentiary standards of beyond a reasonable doubt,
preponderance of the evidence or even a prima facie case--all
that is required to establish probable cause is a ``fair
probability'' that the asserted contention is true. It is
particularly important to note that probable cause is a lower
standard than ``preponderance of the evidence,'' which is
defined as the amount of evidence that makes a contention
more likely true than not true. See, e.g., United States
versus Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997)
(preponderance standards means ``more likley than not'');
United States versus Montague, 40 F.3d 1251, 1255 (D.C. Cir.
1994) (``more probable than not''), BLACK'S LAW DICTIONARY
1064 (5th ed. 1979) (``[e]vidence which is of greater weight
or more convincing than the evidence which is offered in
opposition to it''). Since probable cause is a lower standard
than preponderance of the evidence, an Agent can demonstrate
probable cause to believe a factual contention without
proving that contention even to a 51 percent certainty, as
required under the preponderance of the evidence standard.
See, e.g., United States versus Cruz, 834 F.2d 47, 50 (2d
Cir. 1987) (probable cause does not require a showing that it
is more probable than not that a crime has been committed);
Paff versus Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000)
(probable cause is a lesser showing than preponderance of the
evidence); United States versus Limares, 269 F.3d 794, 798
(7th Cir. 2001) (same); United States versus Mounts, 248 F.3d
712, 715 (7th Cir. 2001) (probable cause does not require a
showing that it is more likely than not that the suspected
committed a crime).
Courts have instructed judges to apply no higher standard
when they review warrants for probable cause. The magistrate
reviewing an application for a criminal search warrant ``is
simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before
him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.''
Gates, 462 U.S. at 238. As to arrest warrants, the question
for the magistrate is whether the totality of the facts and
circumstances set forth in the affidavit are ``sufficient to
warrant a prudent man in believing that the [suspect] had
committed'' the alleged offense--an evaluation that ``does
not require the fine resolution of conflicting evidence that
a reasonable-doubt or even a preponderance standard
demands.'' Gerstin versus Pugh, 420 U.S. 103, 111-12, 121
(1975).
Similarly, a judge of the Foreign Intelligence Surveillance
Court reviewing an application for a FISA electronic
surveillance order or search warrant must make a probable
cause determination based on a practical, common-sense
assessment of the circumstances set forth in the declaration.
The judge must first find probable cause that the target of
the surveillance or search is a foreign power or an agent of
a foreign power. While certain non-U.S. persons can qualify
[[Page S2750]]
as agents of a foreign power merely by acting in the United
States as an officer or employee of a foreign power, a U.S.
person can be found to be an agent of a foreign power only if
the judge finds probable cause to believe that he or she is
engaged in activities that involve (or in the case of
clandestine intelligence gathering activities ``may
involve'') certain criminal conduct. 50 U.S.C. 1801(b). For
an electronic surveillance order to issue under FISA, the
judge must additionally find that there is probable cause to
believe that each of the facilities or places to be
electronically surveilled is being used, or is about to be
used, by a foreign power or an agent of a foreign power. 50
U.S.C. 1805(a)(3). For a FISA search warrant, the judge must
find probable cause to believe that the premises or property
to be searched is owned, used, possessed by or in transit to
or from a foreign power or an agent of a foreign power. 50
U.S.C. 1824(a)(3).
We hope this summary clarifies the meaning of probable
cause. Agents with questions about probable cause in a case
should consult with their Chief Division Counsel, the Office
of the General Counsel, or the Assistant United States
Attorney or Justice Department attorney assigned to the case.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I think Members on both sides of the
aisle greatly respect the work of our colleague on the FBI and we
appreciate his work.
Mr. SPECTER. I thank my colleague from New York for the generous
comments.
Mr. SCHUMER. Well deserved, not just in my opinion but in the opinion
of many Members.
Mr. SPECTER. I thank the Senator.
[...]
