Calendar No. 32
108th Congress Report
SENATE
1st Session 108-40
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AMENDMENT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 TO ALLOW
SURVEILLANCE OF NON-UNITED STATES PERSONS WHO ENGAGE IN OR PREPARE FOR
INTERNATIONAL TERRORISM WITHOUT AFFILIATION WITH A FOREIGN GOVERNMENT
OR INTERNATIONAL TERRORIST GROUP
_______
April 29, 2003.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 113]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 113) to exclude United States persons from the
definition of ``foreign power'' under the Foreign Intelligence
Surveillance Act of 1978 relating to international terrorism,
having considered the same, reports favorably thereon with
amendment, and recommends that the bill as amended do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Background on the Legislation....................................2
III. Need for the Legislation.........................................2
IV. Hearings.........................................................6
V. Committee Consideration..........................................6
VI. Section-by-Section Analysis and Discussion.......................8
VII. Congressional Budget Office Cost Estimate........................8
VIII.Regulatory Impact Statement......................................9
IX. Additional Views................................................10
X. Appendix A--Excerpts from Joint Inquiry Briefing by Staff on
United States Government Counterterrorism Organizations and on the
Evolution of the Terrorist Threat and United States Response:
1986-2001, September 24, 2002...................................76
XI. Appendix B--Letter from Judiciary Committee Chairman Hatch to
Senators Leahy, Grassley and Specter, dated February 27, 2003...79
XII. Appendix C--Letter from the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman
Shelby, dated August 6, 2002....................................86
XIII.Appendix D--Letter from the Department of Justice to Judiciary
Committee Chairman Leahy, dated December 23, 2002...............89
XIV. Appendix E--Letter from the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman
Shelby, dated July 31, 2002.....................................98
XV. Changes in Existing Law........................................103
I. Purpose
The purpose of S. 113 is to amend the Foreign Intelligence
Surveillance Act of 1978 (FISA), title 50, United States Code,
to permit surveillance of so-called ``lone wolf'' foreign
terrorists. S. 113 would allow a FISA warrant to issue upon
probable cause that a non-United States person is engaged in or
preparing for international terrorism, without requiring a
specific showing that the non-United States person also is
affiliated with a foreign power. By eliminating the requirement
of a foreign-power link for FISA warrants in such cases, S. 113
would allow U.S. intelligence agencies to monitor foreign
terrorists who, though not affiliated with a group or
government, pose a serious threat to the people of the United
States. In light of the significant risk of devastating attacks
that can be carried out by non-United States persons acting
alone, individual terrorists must be monitored and stopped,
regardless of whether they operate in coordination with other
individuals or organizations.
II. Background on the Legislation
THE 107TH CONGRESS
In the 107th Congress, S. 2586 was introduced on June 5,
2002 by Senators Schumer and Kyl. S. 2586 was identical to S.
113 as introduced in the 108th Congress.
THE 108TH CONGRESS
In the 108th Congress, Senator Kyl introduced S. 113 on
January 9, 2003. Senate Judiciary Committee Chairman Hatch,
Senator DeWine, and Senator Schumer were original co-sponsors
of S. 113. Senator Chambliss and Senator Sessions became co-
sponsors of S. 113, on January 28, and February 6, 2003,
respectively.
III. Need for the Legislation
S. 113 expands the Foreign Intelligence Surveillance Act of
1978 to permit surveillance or physical searches relating to
non-United States persons where there is probable cause to
believe that such individual is involved in international
terrorism, without regard to whether such persons are
affiliated with a foreign government or terrorist group.
The September 11, 2001 terrorist attacks on the people of
the United States underscored the need for this legislation.
Several weeks before those attacks, federal law enforcement
agents identified one of the participants in that conspiracy as
a suspected international terrorist. These agents sought to
obtain a FISA warrant to search his belongings. One of the
principal factors that prevented the issuance of such a warrant
was FISA's requirement that the target be an agent of a foreign
power. Even if federal agents had been able to demonstrate that
this person was preparing to commit an act of international
terrorism, based on the suspicious conduct that had first
brought him to the attention of authorities, the agents would
not have been able to obtain a warrant to search him absent a
link to a foreign power. As a result, these federal agents
spent three critical weeks before September 11 seeking to
establish this terrorist's tenuous connection to groups of
Chechen rebels--groups for whom we now know this terrorist was
not working.
It is not certain that a search of this terrorist would
necessarily have led to the discovery of the September 11
conspiracy. We do know, however, that information in this
terrorist's effects would have linked him to two of the actual
September 11 hijackers, and to a high-level organizer of the
attacks who was captured in 2002 in Pakistan. And we do know
that suspending the requirement of a foreign-power link for
lone-wolf terrorists would have eliminated the major obstacle
to federal agents' investigation of this terrorist--the need to
fit this square peg into the round hole of the current FISA
statute.\1\
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\1\ In their joint additional views, Senators Leahy and Feingold
express some confusion as to why the investigation of the suspected
20th September 11 hijacker was impeded by FISA's current requirement
that every suspected international terrorist also be shown to be an
agent of a foreign power. Senators Leahy and Feingold suggest that the
F.B.I. had ``all the evidence it needed to procure'' a warrant for this
individual. To the extent that Senators Leahy and Feingold refer to a
FISA warrant, it would appear that they do not appreciate the meaning
of the term ``agent'' as employed by FISA. The current FISA's ``agent''
requirement, and its effect on the investigation of the September 11
conspiracy, were described by the FBI in a September 24, 2002 joint
hearing before the Intelligence Committees. The relevant passages from
that hearing are attached as Appendix A to this report.
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FISA allows a specially designated court to issue an order
authorizing electronic surveillance or a physical search upon
probable cause that the target of the warrant is ``a foreign
power or an agent of a foreign power.'' 50 U.S.C.
Sec. 1805(a)(3)(A), Sec. 1824(a)(3)(A). The words ``foreign
power'' and ``agent of a foreign power'' are defined in
Sec. 1801 of FISA. ``Foreign power'' includes ``a group engaged
in international terrorism or activities in preparation
therefor,'' Sec. 1801(a)(4), and ``agent of a foreign power''
includes any person who ``knowingly engages in sabotage or
international terrorism, or activities that are in preparation
therefor, for or on behalf of a foreign power.''
Sec. 1801(b)(2)(C).
Requiring that targets of a FISA warrant be linked to a
foreign government or international terrorist organization may
have made sense when FISA was enacted in 1978; in that year,
the typical FISA target was a Soviet spy or a member of one of
the hierarchical, military-style terror groups of that era.
Today, however, the United States faces a much different
threat. The United States is confronted not only by specific
groups or governments, but by a movement of Islamist
extremists. This movement does not maintain a fixed structure
or membership list, and its adherents do not always advertise
their affiliation with this cause. Moreover, in response to the
United States' efforts to fight terrorism around the world,
this movement increasingly has begun operating in a more
decentralized manner.\2\
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\2\ Senator Leahy has included with his additional views an
appendix with a 37-page report prepared by Senators Leahy, Grassley and
Specter critiquing the FBI's pre-September 11 intelligence activities
and the FBI in general, which itself is accompanied by a substantial
appendix of exhibits. Senator Leahy previously has introduced the same
document into the Congressional Record. On February 27, 2003, Chairman
Hatch presented to Senator Leahy a letter identifying numerous
inaccuracies, errors, and apparent misunderstandings in Senator Leahy's
personal report. We include Chairman Hatch's letter as Appendix B to
this report.
Senators Leahy and Feingold also suggest that more information
about U.S. intelligence agencies' surveillance of suspected terrorists
and other counterintelligence activities should be made public. The
Department of Justice previously has indicated to Senator Leahy that
the disclosures that he recommends would reveal sensitive information
about U.S. anti-terrorism efforts to terrorist organizations. A copy of
the Department's letter to Senator Leahy is included in Appendix C to
this report.
Senators Leahy and Feingold also question the propriety of FISA
investigations that extend to public libraries, raising the specter of
J. Edgar Hoover. The Department of Justice previously has explained to
Senator Leahy in responses to written questions the relevant legal
standards governing FISA investigations, and why some investigations
lead to public libraries. The Department has indicated, for example,
that some FBI offices ``followed up on leads concerning e-mail and
Internet use information about specific [September 11] hijackers from
computers in public libraries.'' We include the relevant Department of
Justice responses to written questions in Appendix D to this report.
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The origins and evolution of the Islamist terrorist threat,
and the difficulties posed by FISA's current framework, were
described in detail by Spike Bowman, the Deputy General Counsel
of the FBI, at a Senate Select Committee on Intelligence
hearing on the predecessor to S. 113. Mr. Bowman testified:
When FISA was enacted, terrorism was very different from
what we see today. In the 1970s, terrorism more often targeted
individuals, often carefully selected. This was the usual
pattern of the Japanese Red Army, the Red Brigades and similar
organizations listed by name in the legislative history of
FISA. Today we see terrorism far more lethal and far more
indiscriminate than could have been imagined in 1978. It takes
only the events of September 11, 2001, to fully comprehend the
difference of a couple of decades. But there is another
difference as well. Where we once saw terrorism formed solely
around organized groups, today we often see individuals willing
to commit indiscriminate acts of terror. It may be that these
individuals are affiliated with groups we do not see, but it
may be that they are simply radicals who desire to bring about
destruction.
* * * * * * *
[W]e are increasingly seeing terrorist suspects who appear
to operate at a distance from these [terrorists] organizations.
In perhaps an oversimplification, but illustrative
nevertheless, what we see today are (1) agents of foreign
powers in the traditional sense who are associated with some
organization or discernible group (2) individuals who appear to
have connections with multiple terrorist organizations but who
do not appear to owe allegiance to any one of them, but rather
owe allegiance to the International Jihad movement and (3)
individuals who appear to be personally oriented toward
terrorism but with whom there is no known connection to a
foreign power.
This phenomenon, which we have seen * * * growing for the
past two or three years, appears to stem from a social movement
that began at some imprecise time, but certainly more than a
decade ago. It is a global phenomenon which the FBI refers to
as the International Jihad Movement. By way of background we
believe we can see the contemporary development of this
movement, and its focus on terrorism, rooted in the Soviet
invasion of Afghanistan.
* * * * * * *
During the decade-long Soviet/Afghan conflict, anywhere
from 10,000 to 25,000 Muslim fighters representing some forty-
three countries put aside substantial cultural differences to
fight alongside each other in Afghanistan. The force drawing
them together was the Islamic concept of ``umma'' or Muslim
community. In this concept, nationalism is secondary to the
Muslim community as a whole. As a result, Muslims from
disparate cultures trained together, formed relationships,
sometimes assembled in groups that otherwise would have been at
odds with one another[,] and acquired common ideologies. * * *
Following the withdrawal of the Soviet forces in
Afghanistan, many of these fighters returned to their
homelands, but they returned with new skills and dangerous
ideas. They now had newly acquired terrorist training as
guerrilla warfare [had been] the only way they could combat the
more advanced Soviet forces.
* * * * * * *
Information from a variety of sources repeatedly carries
the theme from Islamic radicals that expresses the opinion that
we just don't get it. Terrorists world-wide speak of jihad and
wonder why the western world is focused on groups rather than
on concepts that make them a community.
* * * * * * *
The lesson to be taken from [how Islamist terrorists share
information] is that al-Qaida is far less a large organization
than a facilitator, sometimes orchestrator of Islamic militants
around the globe. These militants are linked by ideas and
goals, not by organizational structure.
* * * * * * *
The United States and its allies, to include law
enforcement and intelligence components worldwide[,] have had
an impact on the terrorists, but [the terrorists] are adapting
to changing circumstances. Speaking solely from an operational
perspective, investigation of these individuals who have no
clear connection to organized terrorism, or tenuous ties to
multiple organizations, is becoming increasingly difficult.
The current FISA statute has served the nation well, but
the International Jihad Movement demonstrates the need to
consider whether a different formulation is needed to address
the contemporary terrorist problem.
The Committee notes that when FISA was enacted in 1978, the
Soviet invasion of Afghanistan had not yet occurred and both
Iran and Iraq were considered allies of the United States. The
world has changed. It is the responsibility of Congress to
adapt our laws to these changes, and to ensure that law
enforcement and intelligence agencies have at their disposal
all of the tools they need to combat the terrorist threat
currently facing the United States. The Committee concludes
that enactment of S. 113's modification of FISA to facilitate
surveillance of lone-wolf terrorists would further Congress's
fulfillment of this responsibility.\3\
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\3\ In a separate statement of additional views on S. 113, Senator
Feingold expresses concerns about the constitutionality of allowing
surveillance of lone-wolf terrorists pursuant to FISA. He suggests that
by allowing searches of persons involved in international terrorism
without regard to whether such persons are affiliated with foreign
powers, S. 113 ``writes out of the statute a key requirement necessary
to the lawfulness of such searches.'' In order to address Senator
Feingold's concerns, the Committee attaches as Appendix E to this
report a letter presenting the views of the U.S. Department of Justice
on S. 2586, the predecessor bill to S. 113.
The Department of Justice's letter provides a detailed analysis of
the relevant Fourth Amendment jurisprudence, concluding that the bill's
authorization of lone-wolf surveillance would ``satisfy constitutional
requirements.'' The Department emphasizes that anyone monitored
pursuant to the lone-wolf authority would be someone who, at the very
least, is involved in terrorist acts that ``transcend national
boundaries in terms of the means by which they are accomplished, the
persons they appear intended to coerce or intimidate, or the locale in
which their perpetrators operate or seek asylum.'' (Quoting 50 U.S.C.
Sec. 1801(c)(3).) Therefore, a FISA warrant obtained pursuant to this
authority necessarily would ``be limited to collecting foreign
intelligence for the `international responsibilities of the United
States, and the duties of the Federal Government to the States in
matters involving foreign terrorism.' '' (Quoting United States v.
Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The Department concludes ``the
same interests and considerations that support the constitutionality of
FISA as it now stands would provide the constitutional justification
for S. 2568.'' The Department additionally notes that when FISA was
enacted it was understood to allow surveillance of groups as small as
two or three persons. The Department concludes that ``[t]he interests
that the courts have found to justify the procedures of FISA are not
likely to differ appreciably as between a case involving such a group *
* * and a case involving a single terrorist.''
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IV. Hearings
S. 2586 was originally referred to the Senate Select
Committee on Intelligence. It held one hearing on S. 2586 on
July 31, 2002, and then referred the matter to the Judiciary
Committee for consideration.
Testimony at the July 31, 2002 hearing was received from
six witnesses: Senator Charles E. Schumer of New York; Mr.
James Baker, Counsel for Intelligence Policy, Officer of
Intelligence and Policy Review, Department of Justice; Mr.
Marion E. (Spike) Bowman, Deputy General Counsel, Federal
Bureau of Investigation; Mr. Fred Manget, Deputy General
Counsel, Office of General Counsel, Central Intelligence
Agency; Mr. Jerry Berman, Executive Director, Center for
Democracy and Technology; and Professor Clifford Fishman,
Columbus School of Law, Catholic University of America.
V. Committee Consideration
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 107TH CONGRESS
The Committee on the Judiciary did not consider S. 2586 in
executive session during the 107th Congress.
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 108TH CONGRESS
The Committee on the Judiciary, with a quorum present, met
in open and executive session on March 6, 2003, to consider S.
113.
Senator Kyl offered a substitute amendment on behalf of
himself, Senator Schumer, Senator Biden, and Senator DeWine,
which the Committee adopted by unanimous consent. The
substitute amendment made three changes to S. 113. First, the
amendment changed the location within FISA of S. 113's
authorization of surveillance and searches of lone-wolf
terrorists. As originally introduced, S. 113 would have amended
50 U.S.C. Sec. 1801(a), which defines the term ``foreign
power'' for purposes of FISA. The Kyl-Schumer-Biden-DeWine
amendment modified S. 113 so that it amends Sec. 1801(b), which
defines the term ``agent of a foreign power'' for purposes of
FISA. Placing the authorization to monitor lone-wolf terrorists
in subsection 1801(b) does not alter the substance of S. 113.
The second change made by the substitute amendment was to
subject the lone-wolf authorization to the same sunset
provision that applies to the USA PATRIOT Act of 2001 (Public
Law 107-56; 115 Stat. 295).
The third change made by the substitute amendment was to
change the stated purpose of the bill. The original stated
purpose of both S. 113 and its predecessor, S. 2586--``to
exclude United States persons from the definition of `foreign
power' under the Foreign Intelligence Surveillance Act of 1978
related to international terrorism''--does not accurately
describe the purpose of the bill, and appears to reflect a
misunderstanding of its effect. The new stated purpose supplied
by the substitute amendment--``to expand the Foreign
Intelligence Surveillance Act of 1978 (`FISA') to reach
individuals other than United States persons who engage in
international terrorism without affiliation with an
international terrorist group''--is that suggested by the
Department of Justice in its July 31, 2002 Statement of
Administration Policy on S. 2586.
The only other amendment to S. 113 that was considered by
the Judiciary Committee was an amendment offered by Senator
Feingold. This proposal would have amended FISA to allow
discovery of applications and affidavits filed in support of a
FISA warrant under the standards and procedures of the
Classified Information Procedures Act of 1980 (18 U.S.C. App.).
The Committee, on a 11-4 rollcall vote, defeated the
Feingold amendment. The vote on the amendment was as follows:
Tally: 4 Yes, 11 No, 4 Not Voting
Republicans (10)
N Hatch (R-Utah)
N Grassley (R-Iowa)
N Specter (R-Pa.)
N Kyl (R-Ariz.)
N DeWine (R-Ohio)
N Sessions (R-Ala.)
N Graham (R-S.C.)
N Craig (R-ID )
N Chambliss (R-Ga.)
N Cornyn (R-Tex.)
Democrats (9)
Y Leahy (D-Vt.)
Y Kennedy (D-Mass.)
NV Biden (D-Del.)
NV Kohl (D-Wis.)
NV Feinstein (D-Calif.)
Y Feingold (D-Wis.)
N Schumer (D-N.Y.)
Y Durbin (D-Ill.)
NV Edwards (D-N.C.)
The Committee then voted 19-0 to report favorably S. 113 to
the full Senate with a recommendation that the bill do pass.
VI. Section-by-Section Analysis and Discussion
Section 1. Treatment as agent of a foreign power under Foreign
Intelligence Surveillance Act of 1978 of non-United States
persons who engage in international terrorism without
affiliation with international terrorist groups
Section 1 includes two paragraphs. Paragraph (a) amends the
definition of an ``agent of a foreign power,'' 50 U.S.C.
Sec. 1801(b)(1), to include in a new subparagraph (C) a non-
United States person who ``engages in international terrorism
or activities in preparation therefor.'' Paragraph (b) subjects
this new authority to the sunset provision in section 224 of
the USA PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295),
which terminates the authority on December 31, 2005.
VII. Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
standing rules of the Senate, the Committee sets forth, with
respect to the bill, S. 113, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 403 of the Congressional Budget Act of
1974.
S. 113--A bill to amend the Foreign Intelligence Surveillance Act of
1978 to cover individuals, other than United States persons,
who engage in international terrorism without affiliation with
an international terrorist group
CBO estimates that implementing S. 113 would not result in
any significant cost to the federal government. Enacting S. 113
could affect direct spending and receipts, but CBO estimates
that any such effects would not be significant. S. 113 contains
no intergovernmental or private-sector mandates as defined in
the Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 113 would amend the Foreign Intelligence Surveillance
Act of 1978 to expand the definition of ``agent of a foreign
power.'' Under the bill, this designation would include persons
(other than U.S. persons) who engage in or prepare for
international terrorist acts on their own. This would enable
the Attorney General to use electronic surveillance to acquire
information on such individuals. The provisions of S. 113 would
expire on December 31, 2005.
Implementing the bill could result in more successful
investigations and prosecutions in certain cases involving
terrorist acts. CBO expects that any increase in costs for law
enforcement, court proceedings, or prison operations would not
be significant because of the small number of cases likely to
be affected. Any such additional costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under S. 113 could
be subject to criminal fines, the federal government might
collect additional fines if the bill is enacted. Collections of
such fines are recorded in the budget as governmental receipts
(revenues), which are deposited in the Crime Victims Fund and
later spent. CBO expects that any additional receipts and
direct spending would be negligible because of the small number
of cases involved.
VIII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 113 will not have a
significant regulatory impact.
IX. Additional Views
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ADDITIONAL VIEWS OF SENATOR LEAHY AND SENATOR FEINGOLD
In times of national stress there is an understandable
impulse for the government to seek more power. Sometimes more
power is needed, and sometimes it is not. Appropriate checks on
new grants of power to government, and meaningful oversight of
how that power is used, are always warranted however. While we
supported reporting S. 113 from the Judiciary Committee because
of the sunset provision that was added at the markup, we remain
concerned that this measure will not ensure that the
government's FISA power is being used as effectively or
appropriately as is necessary.
Sunset provisions, such as the one that we and other
Democratic Senators helped add during our markup, allow us to
adopt such measures as S. 113 on a temporary basis. Without
strong means to conduct oversight, however, there is no way to
determine whether those tools are working, and whether they are
being properly used. We hope that we can consider such
important oversight mechanisms as are contained in the Leahy-
Grassley-Specter-Feingold Domestic Surveillance Oversight Act
of 2003, S. 436, in order to reinforce and make more meaningful
a system of checks and balances for expansions of power such as
those in S. 113.
After the September 11 attacks, many from both sides of the
aisle worked together in a bipartisan fashion and with
unprecedented speed to craft and enact the USA PATRIOT Act,
which enhanced the government's surveillance powers. Since that
time, however, we have had a difficult time in gaining
cooperation from the Department of Justice in our bipartisan
oversight efforts to evaluate how those powers are being used.
Now, as we consider S. 113--and as we hear of
Administration plans to unveil a proposed sequel to the USA
PATRIOT Act, which is being developed without bipartisan
consultation--it is vital for us also to examine and understand
how federal agencies are using the power that they already
have. We must answer two questions:
First, is that power being used effectively? The
American people want to feel safer, but, more than
that, they want to be safer; they want and need
results, not rhetoric.
Second, is that power being used appropriately, so
that our liberties are not sacrificed, so that the
openness of our society and our government are
preserved, and so that our tax dollars are not
squandered?
Unfortunately, the FBI and the Department of Justice have
either been unwilling or unable to help us to answer these
basic questions. Moreover, the information that we have gleaned
on our own through our bipartisan oversight efforts has not
inspired confidence.
Last month, Senators Grassley, Specter and Leahy released a
detailed report based on the oversight that the Judiciary
Committee conducted in the 107th Congress (``FISA
Implementation Failures Report,'' or ``FIF Report''). While it
is not a report of the Committee because it was released after
Senator Hatch had assumed the chair, the FIF report distills
our bipartisan findings and conclusions from numerous hearings,
classified briefings and other oversight activities in the
107th Congress.
The Committee's oversight work demonstrated the pressing
need for reform of the FBI. In particular, the FIF Report
focused on the FBI's failures in implementing FISA, the very
law that S. 113 seeks to further amend. That FIF Report is
being included as Attachment A to these views, because it bears
so directly on some of the claims made about the urgency of
passing S. 113, and the continuing need for proper oversight
checks to balance such proposals. (See Attachment A).
The Administration's response to our bipartisan oversight
report has been to dismiss it as ``old news'' relating to
problems that are all already fixed. In short, ``everything is
fine'' at the FBI and they plan to do nothing to respond to the
systemic problems identified and described in the Specter-
Grassley-Leahy report. Despite the need for Congress to
understand how today's FISA statute, as amended by the USA
PATRIOT Act, is being used and interpreted by federal agencies,
Congress, while being kept in the dark, is being asked instead
to expand the FISA statute still further.
This bill, S. 113, adopts a ``quick fix'' approach. With
catchy monikers like the ``Moussaoui fix'' and the ``lone
wolf'' bill, it is aimed at making Americans feel safer, but it
does not address the chronic problems that actually plague the
effectiveness of our intelligence gatherers. The rationales
justifying this bill have shifted over time as well.
In many ways, S. 113 seems to be a legislative change in
search of a rationale. First, we were told that this amendment
to FISA would have allowed the FBI to obtain a warrant before
9-11 to search the computer and belongings of Zacarias
Moussaoui. Then, after it became clear from the Joint
Intelligence Committee investigation and our bipartisan
Judiciary Committee oversight, spearheaded by Senators Specter
and Grassley, that the FBI had all the evidence it needed to
procure such a warrant had they only understood the proper
legal standard and properly analyzed that information, the
rationale changed. Next, we were told that the bill was
necessary to conduct surveillance of ``lone wolf terrorists,''
who purportedly operate in isolation. Next, after it became
clear that few, if any, international terrorists work alone and
that existing criminal tools such as Title III were sufficient
to handle those rare cases, we were told that the measure was
necessary because it was hard to prove the connection between
terrorists.
Now, in this report, the implication is revived that the
FBI's pre-9/11 failures were due in large part to problems with
the law, but in a vague manner.\1\ The Committee Report even
goes so far as to opaquely offer that ``Iran and Iraq were
considered allies of the United States'' in 1978 as yet another
rational supporting passage of S. 113. It is difficult to
understand precisely what relevance such facts might have to a
FISA change dealing exclusively with persons who have no ties
whatsoever to any foreign government. It appears, however, that
the search for a rationale to support this bill--and one that
can be put forth without any meaningful oversight of FISA's
actual implementation--continues in full force. When the sunset
on this measure arrives we will need stronger rationales than
this to justify its extension.
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\1\ In another section, however, the Committee Report all but
concedes that this measure is no ``Moussaoui fix,'' when it states,
``It is not certain that it would have been possible to obtain a FISA
warrant to search [Moussaoui] even if S. 113 had been enacted prior to
the September 11 attacks.'' One also wonders, if this was indeed the
true reason for the FBI's pre 9/11 woes, why the Administration did not
request this FISA amendment as part of our USA PATRIOT Act legislation
after the attacks.
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The evidence outlined in the FIF Report, accompanying these
views as Attachment A, and coauthored by Senators Specter,
Grassley and Leahy, persuasively and completely rebuts that
claim. The FBI was not properly trained, manned, or equipped to
fight organized terrorism before 9/11. We do not know the scope
of S. 113, which is why the addition of the sunset provision is
so important. What we do know about S. 113 is that it will not
fix the real problems that plagued the FBI before 9/11 and that
continue at the FBI now--poor training, inadequate information
analysis, headquarters bottlenecks, and a culture that punishes
internal dissent.\2\ In private briefings, even FBI
representatives have said that they do not need this change in
the law in order to protect against terrorism. They are getting
all the warrants they want under the current law.
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\2\ Indeed, only recently the FBI Director followed the
recommendation of a DOJ Inspector General report and disciplined the
FBI's most senior internal affairs officer, the Assistant Director for
the Office of Professional Responsibility, for his mishandling of a
whistleblower matter involving John Roberts, who gave important
testimony to this Committee criticizing the FBI in the last Congress.
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What is needed more than S. 113 is internal reform spurred
by the kind of increased oversight structure set forth in the
Domestic Surveillance Oversight Act of 2003, S. 436. That bill,
which Senator Leahy introduced with Senators Grassley and
Specter, would provide for increased reporting on how the
government is using its domestic surveillance powers. It would
allow us to monitor trends so we can know whether more
surveillance is being focused on Americans than on non-U.S.
persons. It would end the secret case law that has hampered the
implementation of FISA over the last 24 years. It would allow
us to follow up on reports that the FBI is reviving the long
discredited practice from the Hoover days of monitoring public
and school libraries. This is the type of information that we
will need in order to assess whether further changes in the law
are required, and also whether renewal or modification of the
provisions already enacted is warranted.
We are all against terrorism. The unanswered question is
whether the Congress will take real steps to ensure that the
FBI and DOJ are not underusing, overusing or misusing the power
that they already have and which we expanded in the USA PATRIOT
Act. We must write fewer blank checks to the Executive Branch
and instead focus more on ensuring that our constitutional
system of checks and balances is enforced.
Another issue that must be closely examined is resource
allocation. We need to know whether the continued expansion of
FISA into the criminal arena will dilute its effectiveness as a
foreign intelligence tool. The Senate Select Committee on
Intelligence, through a letter written by the Chairman, had
earlier asserted concurrent jurisdiction over this bill. Now,
however, there is some move towards that Committee ceding
exclusive jurisdiction over this FISA measure to the Judiciary
Committee.
Whatever committee considers these matters, however, must
carefully consider whether the changes proposed in S. 113,
which remove FISA totally from its link to foreign powers, will
result in the diversion of scarce counter terrorism resources
away from intelligence gathering and into cases that could just
as easily be prosecuted using the ample tools existing
resources available in the criminal justice system. We must
ensure that while we allow more flexibility in FISA's use
(subject to a sunset), FISA continues in practice to be used
for gathering foreign intelligence, not as merely another tool
in exclusively criminal cases. A mechanism to protect that link
to foreign intelligence would be a welcome addition to this
proposal, and worth serious consideration.
If the Administration does insist on increasing its use of
FISA for cases traditionally prosecuted as criminal matters, we
should reconsider whether more of the basic due process
protections of our criminal justice system should also be made
applicable. For instance, Senator Leahy and others supported an
amendment offered in Committee by Senator Feingold that would
have required that the criminal discovery rules used for
classified material under the Classified Information Procedures
Act (CIPA) also be used for FISA materials. In the first 24
years of its existence, no FISA application of even a portion
of such an application has been provided to a criminal
defendant in discovery. While that rule may be defensible when
criminal prosecution is an unintended byproduct of FISA
surveillance, it is neither fair nor appropriate when criminal
prosecution is the goal from the outset. It is especially
difficult to defend in cases where the alleged terrorist is
working alone, the very cases that S. 113 seeks to bring under
the FISA rubric. More discussion by the Judiciary Committee of
this and other aspects of FISA is merited. Without more fulsome
oversight protections, measures such as S. 113 provide the
illusion of security without actually making Americans safer.
------
Attachment A
FBI Oversight in the 107th Congress by the Senate Judiciary Committee:
FISA Implementation Failures--An Interim Report by Senators Patrick
Leahy, Charles Grassley, and Arlen Specter, February 2003
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.\1\ 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.
---------------------------------------------------------------------------
\1\ This report is limited to non-classified information and has
been submitted to the Department of Justice and FBI for a security
review prior to its release and they have agreed that it contains no
classified information.
---------------------------------------------------------------------------
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. 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 time, the increased powers granted to the FBI and
other law enforcement agencies after 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.'' \2\
---------------------------------------------------------------------------
\2\ Hearing before the Senate Committee on the Judiciary,
``Confirmation Hearing on the Nomination of Robert S. Mueller, III to
be Director of the Federal Bureau of Investigation,'' 107th Congress,
2nd Session 69 (July 30-31, 2001) (emphasis added).
---------------------------------------------------------------------------
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.\3\
---------------------------------------------------------------------------
\3\ Id., at p. 89.
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 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.\4\ In short, DOJ
sought more power but was neither unwilling or unable to
provide an example as to why.
---------------------------------------------------------------------------
\4\ Transcript, pp. 31-32 (emphasis added).
---------------------------------------------------------------------------
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 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 problem, 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 Hansen'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.\5\
---------------------------------------------------------------------------
\5\ Transcript, pp. 31-32 (emphasis added).
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.\6\
---------------------------------------------------------------------------
\6\ Transcript, May 8, 2002, pp. 61-62.
---------------------------------------------------------------------------
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 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 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 Spector to ask the Attorney
General directly, ``how do we communicate with you and are you
really too busy to respond?'' \7\
---------------------------------------------------------------------------
\7\ Hearing of the Senate Judiciary Committee: Oversight of the
Department of Justice, July 25, 2002, Transcript, p. 86.
---------------------------------------------------------------------------
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 PARIOT 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 taken by the
Department on the FISA Amendments.\8\
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\8\ The Final Report, dated December 10, 2002, of the Joint Inquiry
of the House and Senate Intelligence Committees (hereafter ``Final
Report'') noted a related issue of ``excessive classification'' and
urged the Attorney General, and other Federal offices, to report to the
Intelligence Committees on ``a new and more realistic approach'' to
designating sensitive and classified information and ``include
proposals to protect against the use of the classification process as a
shield to protect agency self-interest.'' (Recommendations, p. 13).
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In both of these instances, and in others, the DOJ and FBI
have made exercise of our oversight responsibilities
difficult.\9\ 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
that 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.
---------------------------------------------------------------------------
\9\ Another example in which DOJ and FBI have resisted responding
to the Committee's questions related to press reports that the Attorney
General, on September 10, 2001, rejected the FBI's request for an
additional $58 million increase in counterterrorism programs. In order
to assess the accuracy of these reports, Senator Leahy requested
information in written questions in connection with the July 25, 2002
oversight hearing, asking, in pertinent part: ``The FBI had previously
submitted a request to the Department for increases for (a) language
services ($8,852,000); (b) field counterterrorism investigations
($28,066,000); (c) intelligence production (Field and HQ IRSs)
($20,894,000); (d) security ($137,566,000); (e) counterintelligence
initiative ($30,355,000); and (f) secure telephone equipment
($6,501,000). Did the September 10th, request to OMB include any of
these increases that the FBI had requested and, if so, which ones?''
DOJ has not provided answers to this or related questions.
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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); \10\
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\10\ The Joint Inquiry's finding on this point is particularly apt:
``During the summer of 2001, when the Intelligence Community was
bracing for an imminent al-Qa'ida attack, difficulties with FBI
applications for Foreign Intelligence Surveillance Act (FISA)
surveillance and the FISA process led to a diminished level of coverage
of suspected al-Qa'ida operatives in the United States. The effect of
these difficulties was compounded by the perception that spread among
FBI personnel at Headquarters and the field offices that the FISA
process was lengthy and fraught with peril.'' (Final Report, Findings,
p. 8).
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(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 Directory.\11\
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\11\ SA Rowley notes in the first paragraphs of the letter, ``I
have deep concerns that a delicate and subtle shading/skewing of facts
by you and others at the highest levels of FBI management has occurred
and is occurring. * * * I base my concerns on * * * your congressional
testimony and public comments.'' However, we wish to be clear that we
do not believe that Director Mueller knowingly provided inaccurate or
incomplete information to the Committee.
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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.\12\
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\12\ Letter from Special Agent Coleen Rowley to FBI Director Robert
S. Mueller, III, dated May 21, 2002, p. 3 (Rowley Letter). All
citations to SA Rowley's letter are from a version of the letter that
was released to the Judiciary Committee on June 6, 2002, by the DOJ and
with classified or otherwise protected information redacted. This
letter is attached as Exhibit A.
---------------------------------------------------------------------------
In her letter, SA Rowley raised many issued 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 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 criticism 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 on the Paris directory. It is
not known if this sufficiently answered the question,
for the SSA continued to find new reasons to stall.\13\
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\13\ Rowley Letter, p. 6, fn. 6.
---------------------------------------------------------------------------
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.\14\
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\14\ Rowley Letter, p. 7.
Even after the attacks had commenced, FBI Headquarters
discouraged Minneapolis from securing a criminal search warrant
to examine Moussaoui's belongs, dismissing the coordinated
attack on the World Trade Center and Pentagon as a
coincidence.\15\
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\15\ Rowley Letter, p. 4.
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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 probably 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
has 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 probably 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, in explicably, in a classified
setting).\16\
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\16\ Rowley Letter, p. 7. This is yet another example of a hurdle
being erected to effective congressional oversight.
---------------------------------------------------------------------------
Second, the SSA's task was to help bolster the work of the
Minneapolis agents and collect information that would establish
probably 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
probably cause.\17\ 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.
---------------------------------------------------------------------------
\17\ 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 contest of the Moussaoui investigation
and made a stronger case for the FISA warrant. None of them saw the
Phoenix memo before September 11.''
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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.\18\
Following are some of the most salient facts supporting these
conclusions.
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\18\ 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).
---------------------------------------------------------------------------
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.\19\
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.\20\
---------------------------------------------------------------------------
\19\ This finding was echoed by the Joint intelligence Committee:
``In August 2001, the FBI's Minneapolis field office, in conjunction
with the INS, detained Zacharias Moussaoui, a French national who had
enrolled in flight training in Minnesota because FBI agents there
suspected that Moussaoui was involved in a hijacking plot. FBI
Headquarters attorneys determined that there was not probable cause to
obtain a court order to search Moussaoui's belongings under the Foreign
Intelligence Surveillance Act (FISA). However, personnel at FBI
Headquarters, including the Radical Fundamentalist Unit and the
National Security Law Unit, as well as agents in the Minneapolis field
office, misunderstood the legal standard for obtaining an order under
FISA.'' (Final Report, Findings, pp. 3-4).
\20\ The Joint Intelligence Committee reached a similar conclusion
and urged the Attorney General and the Director of the FBI to ``take
action necessary to ensure that: the Office of Intelligence Policy and
Review and other Department of Justice components provide in-depth
training to the FBI and other members of the Intelligence Community
regarding the use of the Foreign Intelligence Surveillance Act (FISA)
to address terrorist threats to the United States.'' (Final Report,
Recommendations, p. 8).
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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 FISA 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 E, suggests
that the errors committed were far broader. The document is a
memorandum dated April 21, 2002, 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 include 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.\21\ 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.
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\21\ We did hear testimony indicating that there may have been a
``chilling effect.'' Special Agent G (of the Minneapolis office)
testified that ``it seemed to [Special Agent G] that the changes [the
SSA] had made'' to the facts supplied by Minneapolis in a memorandum
``were designated to undersell what we had seen Moussaoui preparing to
do.'' Additionally, at an earlier closed briefing for committee staff,
a senior headquarters FBI agent stated that he had advised his
subordinates to be particularly careful with the handling of FISA
applications. However, we also heard testimony from senior FBI and
Justice Department attorneys that they did not perceive a ``chilling
effect'' or drop in the number of FISA applications. We believe further
inquiry as to this issue is warranted.
---------------------------------------------------------------------------
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 (``FISC'') probable cause that the targeted person
is an ``agent of a foreign power.'' \22\ An agent of a foreign
power is defined as ``any person who * * * knowingly aids or
abets any person in the conduct of [certain] activities.'' \23\
Those certain activities include ``international terrorism,''
and one definition of ``foreign power'' includes groups that
engage in international terrorism.\24\
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\22\ ``[O]n the basis of the facts submitted by the applicant there
is probable cause to believe that--* * * the target of the [electronic
surveillance or physical search] is a foreign power or an agent of a
foreign power * * *'' 50 U.S.C. Section 1805 (electronic surveillance);
Section 1824 (physical search).
\23\ (b) ``Agent of a foreign power'' means--
---------------------------------------------------------------------------
(2) any person who--
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation
therefore, or on behalf of a foreign power;
(E) knowingly aids or abets any person in the conduct
of activities described in subparagraph (A), (B), or
(C) or knowingly conspires with any person to engage in
activities described in subparagraph (A), (B), or (C).
50 U.S.C. App. Section 1801(b) (a ``non-U.S. person'' is, in effect, a
non-resident alien) (emphasis added).
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\24\ (a) ``Foreign power'' means--* * *
---------------------------------------------------------------------------
(4) a group engaged in international terrorism or activities
in preparation therefor;
(c) ``International terrorism'' means activities that--
(1) involve violent acts of acts dangerous to human life that
are a violation of the criminal laws of the Untied States or of
any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by
intimidation or coercion; or
(C) to affect the conduct of a government by
assassination or kidnapping; and
(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.
50 U.S.C. Sec. App. 1801. The standard for obtaining FISA orders
differs from the requirements in the criminal context. See Fed. R. Cr.
P. 41 (criminal search warrant); 18 U.S.C. Sec. 2518 (electronic
surveillance).
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'' (emphasis added).
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'' 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.\25\ 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.
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\25\ The Supreme Court's leading case on probable cause; it is
discussed in more detail in the next section of this report.
---------------------------------------------------------------------------
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
Moussauoi 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. \26\
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.
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\26\ Senator Specter. * * * [I]s an Islam fundamentalist who
advocates ``jihad'' a terrorist?
[Attorney #1]. On that description alone, I would say I could not
say so, Senator. I would have my suspicions, I would be concerned, but
I need to see what a person is doing. I need to see some indicia that
they are willing to commit violence and not just talk about it.
Question. But you would have your suspicions.
[Attorney #1]. Yes, sir.
---------------------------------------------------------------------------
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:
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 basis
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.'' \27\
---------------------------------------------------------------------------
\27\ 462 U.S. at 236 (citations omitted; emphasis added).
---------------------------------------------------------------------------
The Court further stated:
For all these reasons, we conclude that it is wiser
to abandon the ``two-pronged 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. \28\
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\28\ 462 U.S. at 238 (footnote and citations omitted) (emphasis
added). The relevance of Illinois v. Gates to defining probable cause
is implicit in the Senate's report when FISA was first enacted (albeit,
when first enacted it covered only electronic surveillance): ``In
determining whether probable cause exists under this section, the court
must consider the same requisite elements which govern such
determinations in the criminal context.'' S. Rep. 95-604, p. 47. ``The
FISA statute does not define `probable cause,' although it is clear
from the legislative history that Congress intended for this term to
have a meaning analogous to that typically used in criminal contexts.''
Final Report of the Attorney General's Review Team on the Handling of
the Los Alamos National Laboratory Investigation (May 2000) (``The
Bellows Report''), p. 494.
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 percent 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 percent-80 percent probability and sometimes
even higher), and depending upon the actual AUSA who would be
assigned, might turn us down.'' \29\ The Gates case and its
progeny do not require an exacting standard of proof. Probable
case 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.'' \30\
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\29\ Rowley Letter, pp. 4-5.
\30\ United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)
(citations omitted).
---------------------------------------------------------------------------
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 for establishing
probable cause.\31\ 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.\32\
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.
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\31\ Judiciary Committee ``Oversight Hearing on Counterterrorism,''
Transcript, June 6, 2002, pp. 78-79, 87 (hereinafter, Tr. 6/6/02). Sen.
Specter's letter is at Exhibit B.
\32\ These documents are attached as Exhibits C and D.
---------------------------------------------------------------------------
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. \33\ 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.\34\ 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.'' \35\
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\33\ Tr., 6/6/02, pp. 224.
\34\ Tr., 6/6/02, pp. 226-27.
\35\ Tr., 6/6/02, pp 226-27.
---------------------------------------------------------------------------
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.
Senator 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. \36\
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\36\ Tr., 7/9/02, pp. 35-36.
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 in 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:
Senator 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.'' \37\
---------------------------------------------------------------------------
\37\ Gates, 462 U.S. at 36 (citations omitted).
---------------------------------------------------------------------------
Similarly, Attorneys #2, #3, and #4 were also not familiar
with Gates.\38\ 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. * * *'' \39\ 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.
---------------------------------------------------------------------------
\38\ Tr., 7/9/02, pp. 37-38, 53.
\39\ Tr., 7/9/02, pp. 39-40.
---------------------------------------------------------------------------
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.\40\
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\40\ Bellows Report, p. 482.
The Bellows team concluded that OIPR has 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.'' \41\
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\41\ Bellows Report, p. 493. The Bellows team was not the only
group to reach this conclusion. The National Commission on Terrorism,
headed by former Ambassador L. Paul Bremer, III, found the following:
The Commission heard testimony that, under ordinary
circumstances, the FISA process can be slow and burdensome,
requiring information beyond the minimum required by the
statute. For example, to obtain a FISA order, the statute
requires only probable cause to believe that someone who is
not a citizen or legal permanent resident of the United
States is a member of an international terrorist
organization. In practice, however, OIPR requires evidence
of wrongdoing or specific knowledge of the group's
terrorist intentions in addition to the person's membership
in the organization before forwarding the application to
the FISA Court. Also, OIPR does not generally consider the
past activities of the surveillance target relevant in
determining whether the FISA probable cause test is met.
During the period leading up to the millennium, the FISA
application process was streamlined. Without lowering the
FISA standards, applications were submitted to the FISA
Court by DOJ promptly and with enough information to
establish probable cause.
Report of the National Commission on Terrorism at p. 11.
The Commission recommended that:
--The Attorney General should direct that the Office of
Intelligence Policy and Review not require information in
excess of that actually mandated by the probable cause
standard in the Foreign Intelligence Surveillance Act
statute.
--To ensure timely review of the Foreign Intelligence
Surveillance Act applications, the Attorney General should
substantially expand the Office of Intelligence Policy and
Review staff and direct it to cooperate with the Federal
Bureau of Investigation.
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. * * *'' \42\ 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.\43\
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.
---------------------------------------------------------------------------
\42\ Bellows Report, p. 484 (emphasis in original).
\43\ Tr., 6/6/02, p. 91.
---------------------------------------------------------------------------
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, there
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 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.\44\ 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.
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\44\ The Joint Inquiry similarly concluded that ``the FBI
headquarters personnel did not take the action requested by the Phoenix
agent prior to September 11, 2001. The communication generated little
or no interest at either FBI Headquarters or the FBI's New York field
office.'' (Final Report, Findings, p. 3).
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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 disturbing, 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.\45\ 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 * * *''
\46\ 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.
---------------------------------------------------------------------------
\45\ An Investigation of the Belated Production of Documents in the
Oklahoma City Bombing Case, Office of the Inspector General, March 19,
2002 (Oklahoma City Report).
\46\ Oklahoma City Report, p.2.
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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
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. (bold
emphasis in original).
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. (bold emphasis in
original).
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 others 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 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 a 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 shift 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 in 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 Court 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.\47\ 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.
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\47\ 50 U.S.C. 1807.
---------------------------------------------------------------------------
Current law also requires various reports from the Attorney
General to the Intelligence and Judiciary Committees that are
not made public.\48\ 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.
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\48\ 50 U.S.C. Sections 1808, 1826, 1846, 1863.
---------------------------------------------------------------------------
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.
Arlen Specter.
Chuck Grassley.
ADDITIONAL VIEWS OF SENATOR RUSSELL FEINGOLD
As the title states, the purpose of S. 113 is to amend
``the Foreign Intelligence Surveillance Act of 1978 to allow
surveillance of non-United States persons who engage in or
prepare for international terrorism without affiliation with a
foreign government or international terrorist group.'' In other
words, as the Majority describes it, the intent of S. 113 is to
permit FISA warrants to be obtained against the so-called
``lone wolf'' foreign terrorist. The lone-wolf terrorist is
envisioned as an individual who has no identifiable ties to any
foreign power, including any terrorist group.
I voted for this bill in committee because I want to engage
in further discussions concerning proposed amendments to the
bill and help improve it before it is taken up on the floor. I
have doubts, however, about the constitutionality and the
wisdom of the bill as reported by the Committee.
The approach taken in S. 113 would eliminate the current
requirement in FISA that the individual who is the target of a
warrant must be an agent of a foreign power. This means that S.
113 may very well result in FISA serving as a substitute for
some of our most important criminal laws. I am concerned that
S. 113 goes further than necessary to address the concern over
the ability of law enforcement to identify, investigate and
apprehend the true lone-wolf terrorist.
Like all Senators, I am extremely committed to taking every
step necessary to protect our nation against terrorist attacks.
But, I am troubled with the approach S. 113 takes to expand the
use of Foreign Intelligence Surveillance Act. FISA represents
an important exception to traditional constitutional restraints
on criminal investigations, allowing the government to gather
foreign intelligence information without having probable cause
that a crime has been or is going to be committed. The courts
have permitted the government to proceed with surveillance in
this country under FISA's lesser standard of suspicion because
the power is limited to investigations of foreign powers and
their agents. S. 113 writes out of the statute a key
requirement necessary to the lawfulness of intrusive
surveillance powers that would otherwise be unconstitutional.
See In re Sealed Case No. 02-001, slip op. at 42 (Foreign
Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while
FISA requires no showing of probable cause of criminal
activity, it is constitutional in part because it provides
``another safeguard * * * that is, the requirement that there
be probable cause to believe the target is acting `for or on
behalf of a foreign power.' '')
Even if S. 113 survives constitutional challenge, it would
mean that non-U.S. persons could have electronic surveillance
authorized against them using the lesser standards of FISA even
though there is no conceivable foreign intelligence aspect to
their cases. Judges would not even be able to use their
discretion in reviewing a FISA warrant application to determine
if a non-U.S. person is connected to any foreign power or
terrorist group. This elimination of a foreign intelligence
element of the warrant is contrary to the very purpose of FISA
and the justification for its reduced standards.
We should all recall the last time that Congress attempted
to fix the rules for the use of FISA warrants in the USA
PATRIOT Act. At that time, the expectation of most Senators was
that the changes they were making to FISA would be used in a
limited and reasonable manner. One change Congress authorized
made it easier for FISA to be used in cases where the purpose
of the investigation was primarily criminal prosecution rather
than foreign intelligence gathering. Under USA PATRIOT Act,
foreign intelligence gathering need only be a ``significant''
purpose of obtaining the warrant rather than the ``primary''
purpose.
The decision of the Attorney General to use FISA warrants
more aggressively in criminal cases after the USA PATRIOT Act
was passed demonstrates the impact that changing a single word
in the statute can have. Not surprisingly, there has been a
significant increase in the use of FISA warrants in criminal
cases since enactment of the USA PATRIOT Act. We could very
well be looking at a similar result if S. 113 passes in its
current form. Eliminating the agent of a foreign power
requirement could lead to an even more dramatic increase in the
use of FISA warrants in situations that do not justify such
extraordinary government power.
We are told that one of the inspirations for this bill was
the case of Zacharias Moussaoui, the alleged 20th hijacker. One
of the FBI's excuses for not seeking a warrant to search Mr.
Moussaoui's computer prior to September 11th was that because
it could not identify a foreign power or group with which
Moussaoui was associated, it could not meet the ``agent of a
foreign power'' requirement to get a FISA warrant. In the case
of Moussaoui, a warrant application was never even submitted to
the FISA court. As Senator Specter has pointed out, many legal
observers believe that the FBI simply misread the law and that
it could and should have obtained a FISA warrant against Mr.
Moussaoui if it had tried.
It is somewhat difficult to envision a foreigner in the
U.S. planning an international terrorist attack who is not an
agent of a foreign power, which includes a terrorist
organization. But it is certainly possible that at a time a
FISA warrant is sought good evidence of that connection might
not be available. I support the effort to make sure that a
request for a warrant in such cases is not denied. On the other
hand, it is also very possible that at the time a request for a
reauthorization of the FISA warrant is made, the government
will have determined that the suspect is truly not an agent of
a foreign power. In those situations, FISA should not apply,
and the government should be required to use the investigative
tools available under our criminal laws. The foreign
intelligence rationale for FISA's lesser standard no longer
exists. I believe that the bill should include safeguards to
make sure that the new powers included in this bill are not
abused. Without such safeguards, we risk having this bill
thrown out by the courts.
FISA must not be allowed to become the exception that
swallowed the Fourth Amendment. There are ways to address the
lone wolf terrorist that do not write the concept of ``foreign
intelligence'' out of the Foreign Intelligence Surveillance
Act. I hope that the full Senate will reduce the dangers that
this bill poses to our constitutional freedoms.
Russ Feingold.
X. Appendix A--Excerpts From Joint Inquiry Briefing by Staff on
United States Government Counterterrorism Organizations and on
the Evolution of the Terrorist Threat and United States
Response: 1986-2001, September 24, 2002
The committees met, pursuant to notice, at 10:10 a.m., in
Room 216, Hart Senate Office Building, the Honorable Porter
Goss, Chairman of the House Permanent Select Committee on
Intelligence, presiding.
Senate Select Committee on Intelligence Members Present:
Senators Graham, Shelby, Levin, Rockefeller, Feinstein, Bayh,
Edwards, Mikulski, Kyl, Inhofe, Hatch, Roberts, and DeWine.
House Permanent Select Committee on Intelligence Members
Present: Representatives Goss, Bereuter, Castle, Boehlert,
Gibbons, Hoekstra, Burr, Chambliss, Pelosi, Harman, Roemer,
Boswell, Peterson, and Cramer.
Senate Select Committee Staff Members Present: Alfred
Cumming, Staff Director; William Duhnke, Minority Staff
Director; Vicki Divoll, General Counsel; Kathleen McGhee, Chief
Clerk; James Barnett, Randy Bookout, Steve Cash, Pete Dorn,
Melvin Dubee, Bob Filippone, Chris Ford, Lorenzo Goco, James
Hensler, Chris Jackson, Andrew Johnson, Ken Johnson, Hyon Kim,
Don Mitchell, Matt Pollard, Don Stone, Tawanda Sullivan, Linda
Taylor, Tracye Winfrey, and Jim Wolfe.
House Permanent Select Committee on Intelligence Staff
Members Present: Timothy R. Sample, Staff Director; Chrisopher
Barton, Acting Chief Counsel; Michael W. Sheehy, Minority
Counsel; Michael Meermans, James Lewis, L. Christine Healey,
Carolyn Bartholomew, T. Kirk McConnell, Wyndee Parker, Bob
Emmett, and William P. McFarland.
Joint Inquiry Staff Members Present: Rick Cinquegrana,
Michael Davidson, Eleanor Hill, Kay Holt, Michael Jacobson,
Everett Jordan, Miles Kara, Thomas Kelley, Dana Lesemann, Lewis
Moon, Patricia and Ravalgi.
Also Present: Mr. Bowman, Deputy General Counsel, FBI; Mr.
Rolince, Special Agent in Charge, FBI Washington Field Office;
and David Nahmias, Department of Justice.
FBI Headquarters Agent. A foreign power with regard to a
FISA in a terrorism case would be a terrorist organization.
Senator Levin. Exactly right. You don't need a foreign
power. The terrorist organization is enough. Yet, this was not
pursued because you were told that you had to prove that there
was a foreign power connection.
FBI Headquarters Agent. No, that is not true.
Senator Levin. If that is not correct, fine, I will let
Senator Edward's Q and A answer that.
My question is this: Apparently there was an acknowledgment
that there was a misinterpretation of the law. Okay. How much
FISA requests were not made based on that misinterpretation of
law, in addition to the one that we are talking about here?
That is a very specific, numerical question. How many requests
were not made based on the misinterpretation which was
acknowledged or explored by Senator Edwards?
Mr. Bowman. May I briefly answer that, if I may, Mr.
Chairman? I don't know of any other instance in which something
like this came up. But I don't think, Senator, that Senator
Edwards' questions got quite to what you were focused on there.
The fact of the matter is, that the agent of a foreign power is
something that is not defined in the statute, but is addressed
in the legislative history, which we have to follow, because
that is where we get an explanation of it.
An agent of a foreign power in the legislative history
describes a knowing member of a group or organization, and puts
an onus on the government to prove that there is a nexus which
exists between that individual and the organization which would
make it likely that that individual would do the bidding of the
foreign power. That is the stretch that we weren't able to get
to.
Mr. Rolince. Mr. Chairman, I think that is absolutely
essential, because there seems to be a disconnect between
whether or not we did not get the FISA because we could not
connect him to a foreign power.
We did not get the FISA because the decision came out, in
consultation with OGC, that we could not plead him as an agent
of that foreign power.
Senator Levin. If I could put in the record the definitions
of foreign power in 50 U.S. Code Section 1801(A). And foreign
power is defined as, including in Subsection 4, a group engaged
in international terrorism, or activities in preparation
therefore.
Mr. Rolince. No disagreement, but we have to prove that he
is an agent of that foreign power.
Senator Levin. Of that group?
Mr. Rolince. Right. That is where we were lacking. That he
was an agent of that group.
FBI Headquarters Agent. If I could, this is a very
significant issue, and one that we should probably take up a
closed session. And it needs to be explored, because this is a
problem that we are going to face many times now in the future.
And this issue of how to get at these so-called lone wolves
needs to be addressed.
But I wanted to ask you, Mr. Bowman, if I might, this
question: Just quickly following up on Senator Levin's as I
understand it, then, the FBI's national security lawyers
essentially used the wrong standard of designated group, ergo
Chechen, not on the list, ergo not designated, rather than any
group. And some 3 weeks was taken in that endeavor.
Then I think Senator Levin asked the question: Well, how
much other FISA requests went through the same thing? Is the
answer there was no other FISA--this was the only FISA request
that happened to encounter that kind of false standard?
Mr. Bowman. Two different parts of your question, Senator.
First of all, no one in the national security law arena said
that the Chechens were not a power that could be--that could
qualify as a foreign power under the FISA statute.
The issue that came to us was whether there was any foreign
power to which you could attach Moussaoui. And we did not see
that.
The second part of your question was whether there are
others who have been given an erroneous standard, whether there
were other FISAS that did not come to us because there was an
erroneous standard. I don't know what I don't know.
This is the only time that I have heard that advice was
actually given that you don't have--you don't have a foreign
power, because there isn't a recognized one. That is certainly
not what we train them to.
XI. Appendix B--Letter from Judiciary Committee Chairman Hatch to
Senators Leahy, Grassley and Specter, Dated February 27, 2003
U.S. Senate,
Committee on the Judiciary,
Washington, DC, February 27, 2003.
Senator Patrick J. Leahy,
Ranking Minority Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Senator Charles E. Grassley,
U.S. Senate, Washington, DC.
Senator Arlen Specter,
U.S. Senate, Washington, DC.
Dear Senators Leahy, Grassley and Specter: I have reviewed
your Interim Report on FISA Implementation Failures which you
released Tuesday. Examining the performance of the FBI, and
specifically, the FBI's investigative efforts prior to the
September 11th attack is an important function of the Committee
and I commend your interest and efforts in assisting with this
matter.
At the outset, I am deeply concerned about the manner in
which the Interim Report was issued as a report of the
Committee's investigation at your press conference. This report
does not represent my view as Chairman of the Judiciary
Committee, nor does it represent the views of the Judiciary
Committee. Rather, the Interim Report represents the views of
you as three Senators on the Judiciary Committee. Indeed, you
have a right to express your individual views as provided in
the Interim Report, however, as described below, there is much
in the report that I, and probably other Members, find
objectionable, stale or incomplete. For these reasons, I object
to any suggestion in the Interim Report that it is a Judiciary
Committee report and advise that you ensure that the public
does not mistakenly view this as such.
Like each of you, I am committed to ensuring that the FBI
performs its functions in the highest manner to protect the
safety of Americans and the Judiciary Committee has an
important role in conducting appropriate oversight of the
Bureau. I have not refrained from pointing out FBI deficiencies
in the past, and will do so again, if warranted. Given the
obvious dangers in the world today, it is even more important
that the Committee continue oversight of the FBI to ensure that
it fulfills its important mission of investigating, detecting
and preventing further terrorist attacks on our country,
without threatening or undermining our country's cherished
freedoms. But, as I have said before, I will not support
oversight efforts, which could be viewed by the public as
misleading or incomplete, rather than objectively addressing
real problems and identifying solutions to those problems.
Congressional oversight must have an eye towards reforming the
FBI, protecting the American public, and making sure that our
country never again has to suffer a devastating attack on its
soil.
I fully understand that many so-called ``civil liberties''
groups have complained to the Committee in the past, and will
continue to complain in the future, that our law enforcement
communities must perform under additional super-constitutional
constraints. Despite court cases to the contrary, many continue
to argue for requirements beyond what our Constitution demands.
I do believe that they have the right to express their
positions to Congress. I also agree that we must ensure that
our law enforcement authorities do not violate any provisions
of the Constitution, whether under the 4th Amendment, the 1st
Amendment or any other provisions of our laws. However, I
simply don't share their views, especially since September 11,
2001, that we limit out intelligence and law enforcement
abilities with requirements that go above and beyond those
required by our Constitution, which will tend to have the
effect of protecting terrorists and criminals while endangering
the lives of Americans.
It is important that we remember the events surrounding the
September 11th attack. FBI Director Robert Mueller was sworn in
as Director one week before the September 11th attack. When he
took over the FBI, he took the reins of an organization which
had been subjected to intense criticism and media coverage due
to the handling of the McVeigh documents, the Hanssen spy case,
and the Wen Ho Lee investigation. All of us worked together in
a bi-partisan manner and conducted meaningful oversight to each
of these important issues. Director Mueller accepted the
difficult task of leading the FBI during this turbulent time as
the agency. On September 11th, his challenge increased by
several orders of magnitude.
The Senate Judiciary Committee and the bi-cameral Joint
Intelligence Inquiry raised significant issues concerning the
FBI's pre-9/11 investigation, particularly in Minneapolis and
Phoenix. The Joint Intelligence Inquiry reviewed these issues
in great detail. Moreover, Congress created the bipartisan
National Commission to Prevent Terrorist Attacks, which is
conducting yet another review of this issue. Given these
numerous inquiries, our focus today, however, should not be on
identifying miscues with 20-20 hindsight in order to simply
embarrass the FBI. Rather, our inquiry should be tailored to
reforming the FBI with a forward-looking approach aimed at
giving Director Mueller the support and resources he needs to
change the direction of the FBI, where needed. The FBI needs to
be ready to meet the challenges of the future, and in my
opinion, based on my recent experience both on this Committee
and on the Intelligence Committee, on which I also serve, I
believe FBI Director Mueller is willing, able and meeting this
challenge.
Director Mueller's recent reforms which he initiated after
a full review, including those that Congress required are being
implemented. As we have been briefed, Director Mueller's
reorganization plan at FBI headquarters and in the field will
improve the FBI's analytic capability; enhance its ability to
gather, analyze and disseminate intelligence concerning
terrorists and racketeers; further its ability to share
information internally and with other law enforcement and
intelligence agencies; and decentralize those functions that
need to be reallocated to the field while centralizing critical
intelligence functions.
Much of the criticism you cite relates to some of the
previous administration's shortcomings as well as problems
caused by our laws which the PATRIOT Act that the Senate passed
with only one dissenting vote last year have resolved.
Moreover, President Bush's recent order instructing the
Directors of the Federal Bureau of Investigation, and the
Central Intelligence Agency, the Secretary of Homeland Security
and the Secretary of Defense to develop a Terrorist Threat
Integration Center builds on the FBI reforms, and will ensure
that the FBI is fully integrated into the analysis and
dissemination of all terrorist-related information. As you well
know, the Terrorist Threat Integration Center will ensure that
law enforcement and intelligence agencies work together to
share information, to make sure that connections are made, and
identify and assess all significant threats to our country.
It is in this context that I now turn to the Interim
Report. While I appreciate your oversight efforts and the
preparation of the Interim Report, I have several significant
concerns which are outlined below. In my view, the Interim
Report contains several errors and omissions. I will identify
what I consider to be some of the more significant issues. I
offer these observations in the hope that you may re-examine
your analysis of your reported ``oversight,'' as well as some
of the more significant conclusions contained in the Interim
Report. Again, it is my hope that working together we can find
objective and responsible common ground for a proper oversight.
A. IMPROVEMENTS IN THE FISA PROCESS
I would hope you agree with me on the importance of the
FISA process to the intelligence community and law enforcement
agencies in order to conduct critical intelligence gathering
needed to protect our country and prevent further terrorist
attacks. Importantly, contrary to the suggestions contained in
the Interim Report, over the last 18 months the Department and
the FBI have made great progress in improving the FISA process.
Your Interim Report does not discuss any of these improvements,
and offers only a restatement of complaints that were fully
analyzed and, I believe, corrected by the Justice Department
and the FBI. I suggest this only to correct the record so that
the public is not left with the impression that the FBI has not
corrected past problems, which I believe your Report might well
do in parts.
In addition, the Interim Report significantly omits any
discussion of perhaps the most significant improvement in the
FISA process--which was the direct result of the Justice
Department's successful appeal to the Foreign Intelligence
Surveillance Review Court. On November 18, 2002, the Review
Court issued a unanimous decision which largely adopted the
Justice Department's interpretation of FISA that: (1) the use
of foreign intelligence electronic surveillance for criminal
purposes is appropriate, particularly in light of Congress'
passage of the PATRIOT Act in 2001, which passed with only one
dissenting vote in the Senate and which relaxed the prior
restrictions on the government's use of foreign intelligence
electronic surveillance; and (2) the restrictions imposed by
the Clinton Administration on the sharing of information
between intelligence and law enforcement agencies were
unnecessary and not required by a 1978 statute authorizing such
electronic surveillance nor mandated by the Constitution. This
was a very significant point, in my opinion.
1. FISA Application Inaccuracies. Instead of focusing on
issues arising from implementation of the November 18, 2002
Review Court decision, the interim Report repeats and re-hashes
issues relating to inaccuracies in past-filed FISA
applications, occurring nearly two years ago. This issue was
addressed fully in prior hearings and oversight inquiries and
correspondence. While the FBI has acknowledged that there were
accuracy problems with the submission of two sets of FISA
applications submitted in late 2000 and early 2001,\1\ the
Interim Report ignores the fact that the FBI and the Justice
Department instituted procedural changes to make sure that such
errors do not occur again. Specifically, as you know, on April
5, 2001, the FBI adopted the so-called ``Woods Procedures'' to
ensure the accuracy of FISA applications. Among other things,
the procedures require FBI field offices to review draft FISA
applications for accuracy. On May 18, 2001, the Attorney
General issued a memorandum, copies of which were submitted to
the Committee, that requires, among other things, direct
contact between the Justice Department's Office of Intelligence
and Policy Review and FBI field offices and additional FISA
training for FBI agents.
---------------------------------------------------------------------------
\1\ These incidents are under review by the FBI's and Justice
Department's Offices of Professional Responsibility. The Justice
Department briefed the Senate Judiciary Committee staff and the
Intelligence Committees of these accuracy issues.
---------------------------------------------------------------------------
It is also significant to note--which is nowhere mentioned
in the Interim Report--that since September 11th, the Justice
Department has filed more than twice as many emergency FISA
applications as it did in the previous 22 years, and it has
done so without a significant accuracy problem. In April 2002,
Judge Royce Lamberth, who was then the Presiding Judge of the
FISA Court, publicly stated, ``we consistently find the [FISA]
applications `well scrubbed' by the Attorney general and his
staff before they are presented to us.'' He also stated that
``the process is working. It is working in part because the
Attorney General is conscientiously doing his job, as is his
staff.''
2. FISA Application Processing Time. The Interim Report
suggests that processing of FISA applications is slow. In my
opinion, the Interim Report omits, however, any mention of one
vital index of timeliness--the number of emergency FISAs (cases
in which there is an emergency requiring a search of
surveillance to be conducted before a court order ``can with
due diligence be obtained'')--has increased dramatically. As
the Justice department reported in an October 7, 2002 letter to
Senator Biden, it conducted 113 emergency FISA searches and
surveillances in the one-year period between September 11,
2001, and September 19, 2002, compared to a total of only 46
emergency FISAs in the preceding 23 years of the statute's
existence. This information, which reflects truly commendable
efforts by FBI and Justice Department personnel, is a necessary
part of any balanced account of the timeliness of the FISA
process, and is not acknowledged in the Interim Report.
3. Training. The Interim Report suggests that there is a
need for increased training of FBI and Justice Department
personnel, but does not acknowledge existing training programs
which were established in the latter part of 2002. The Interim
report correctly identifies deficiencies in the legal training
of FBI personnel handling FISA applications prior to the
September 11th attack, and specifically outlines how these
deficiencies may have contributed to the mishandling of a
possible FISA search warrant for Zacarias Moussaoui's personal
effects before the September 11th attack. On this issue, I
agree with your analysis and concern, and we have heard about
this. These allegations were fully discussed and vetted during
Judiciary Committee and Intelligence Joint Inquiry Hearings in
2002, and I believe have now been addressed by Attorney General
Ashcroft and FBI Director Mueller.
Moreover, the Interim Report completely ignores recent and
significant steps taken by the Justice Department and the FBI
to ensure proper training of FBI personnel. This training
program is even more critical given the FISC decision of
November 18, 2002. Specifically, on December 24, 2002, the
deputy Attorney General instructed 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.''
B. COOPERATION OF THE JUSTICE DEPARTMENT
Throughout the Interim Report, you have suggested that the
Department of Justice has not cooperated with the Committee's
oversight requests for information. As Chairman of the
Committee, I disagree with this criticism for the following
reasons stated below.
I am aware of the Justice Department's letter to you dated
September 13, 2002, which describes in detail all of the
information made available to you in response to specific
oversight requests. As noted in the letter, the Justice
Department provided access to: (1) FBI supervisors, including a
Supervisory Special Agent, a Headquarters Unit Chief, and a
Deputy General Counsel, who briefed Judiciary Committee staff
on 7 separate occasions (February 24, April 17, April 24, June
3, June 4, June 27 and July 9, 2002); (2) senior Justice
Department officials, including the Counsel for Intelligence
Policy and Associate Deputy Attorney General, who briefed
Judiciary Committee staff on 8 separate occasions (June 3, June
27, July 27, August 23, August 28, August 29, September 3 and
September 6, 2002), and testified at open hearings on September
10, 2002; (3) numerous documents which were submitted in
response to requests from your staff; and (4) written responses
to over 300 questions for the record, with hundreds of
additional questions set forth in sub-parts, totaling over 300
pages, in response to oversight requests from the House and
Senate Judiciary.
In addressing this issue, you ignore the extensive and
vigorous oversight which occurred with the full cooperation of
the Justice Department. In particular, the Interim Report
describes, and even quotes from, a number of full Committee
hearings with senior Justice Department and FBI officials on
July 31, 2001; November 28, 2001; December 6, 2001; March 21,
2002; April 9, 2002; May 8, 2002; June 6, 2002; July 25, 2002;
and September 10, 2002. Further, as the Interim Report
acknowledges (page 16), ``these are only the full Judiciary
Committee hearings related to the 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.'' The Interim
Report also notes that members and staff ``conducted a series
of closed hearings, briefings and made numerous written
inquiries'' on FISA issues, and submitted ``written inquiries,
written hearing questions and other informal requests,''
including letters to the Attorney General and the FBI Director
dated November 1, 2001; May 23, 2002; June 4, 2002; June 13,
2002; July 3, 2002; and July 31, 2002. Thus, contrary to your
general claims of lack of cooperation, your Interim Report
demonstrates unequivocally that the Justice Department has
cooperated by providing access to numerous senior officials,
responsible personnel, and volumes of documents. This
cooperation should be commended not condemned if we are to have
constructive oversight.
The Interim Report also criticizes, and in my opinion
unfairly, the Justice Department for refusing to release the
May 17, 2002 opinion of the Foreign Intelligence Surveillance
Court--the Department informed the Committee of the existence
of the opinion in early June 2002--without the permission of
the FISC. As the Justice Department explained, however, it
generally must respect the prerogative of courts to control the
release of their own opinions, particularly where, as here, the
opinion in question was unprecedented. The Justice Department,
the FISA, concluded that it was the FISA's decision whether or
not to release publicly the May 17 opinion; ultimately, the
FISA's opinion and order was made available to Congress and the
public by the FISA itself in response to a request from the
Committee. The FISA also advised the Committee in writing of
its intent to make public unclassified opinions in the future.
C. EXISTING CONGRESSIONAL FISA OVERSIGHT
The Interim Report calls for more oversight of the FISA
process. However, the Interim Report fails to describe
accurately existing Congressional oversight of the FISA
process. The Justice Department already provides significant
information--classified and unclassified--to the Intelligence
Committees, consistent with long-established practices for the
disclosure and handling of classified information. In reporting
to the Intelligence Committees, the Justice Department is
required to ``fully inform'' the Intelligence Committees
concerning FISA electronic surveillance, physical searches, pen
registers and trap and traces, and requests for records (50
U.S.C. Sections 1808(a)(1), 1826, 1846(a), and 1862(b)); while
the FISA reporting obligations to the Judiciary Committees are
much more generic. 50 U.S.C. Sections 1826, 1846(b), 1862(b).
As you may be aware, the ``fully inform'' standard that
governs FISA oversight is the same standard that governs
Congressional oversight of the intelligence community in
general. See S. Rep. No. 95-604, 95th Cong., 1st Sess. 60-61
(1977); S. Rep. No. 95-701, 95th Cong., 2d Sess. 67-68 (1978);
see also, H.R. Rep. No. 95-1283, pt. 1, 95th Cong., 2d Sess. 96
(1978). Such a requirement reflects a careful balance between
the need for meaningful oversight and the need for secrecy and
information security in the government's efforts to protect
this country from foreign enemies. Under the ``fully inform''
standard, the Justice Department submits lengthy and detailed
classified semi-annual reports to the Intelligence Committees,
including specific information on ``each criminal case in which
information acquired [from a FISA electronic surveillance] has
been authorized for use at trial, 1150 U.S.C. Section
1808(a)(2)(B), and ``the number of physical searches which
involved searches of the residences, offices or personal
property of United States persons,'' 50 U.S.C. Section 1826(3).
Moreover, under current law, the Attorney General makes public
``the total number of applications made for orders and
extensions of orders'' approving electronic surveillance and
physical searches under FISA, and ``the total number of such
orders and extensions either granted, modified or denied.'' 50
U.S.C. Section 1807, 1826.
In addition to my service on the Senate Judiciary
Committee, I have served for the past six years on the Senate
Select Committee on Intelligence, where I have participated in
vigorous oversight of the FISA process. Based on my experience,
I can assure you that the Congress exercises appropriate,
vigorous, robust and detailed oversight of the FISA process.
Again, I thought that this is important to note, as I did not
want your Report to leave the impression with the public that
the FISA process is somehow unchecked by Congress.
I want to reiterate my hope and insistence that we engage
in proper and constructive oversight to provide the American
public the most important check on the most important functions
of our government, our law enforcement and intelligence
functions. Meaningful oversight requires a fair and balanced
approach if we are to be obtain useful reforms where needed. As
you fully appreciate, after September 11, 2001, we are in a new
era as Congress realized in passing the Patriot Act with near
unanimous approval, and with only one dissenting Senate vote.
The security of our country is at stake, and we owe American
people our full cooperation in discharging our Constitutional
functions in addressing these critical issues.
Sincerely,
Orrin G. Hatch,
Chairman.
XII. Appendix C--Letter From the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman Shelby,
Dated August 6, 2002
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, August 6, 2002.
Hon. Bob Graham,
Chairman,
Hon. Richard C. Shelby,
Vice-Chairman,
Select Committee on Intelligence, U.S. Senate, Washington, DC
Dear Chairman Graham and Vice-Chairman Shelby: We
appreciate the care shown by Senator Edwards and the staff of
the Senate Select Committee on Intelligence (``SSCI'') in the
drafting of the proposed bill to require additional public
disclosures regarding the use of the Foreign Intelligence
Surveillance Act of 1978 (``FISA''), 50 U.S.C. Sec. 1801 et
seq. We also appreciate the underlying concern of Senator
Edwards that data on the use of FISA, to the extent prudent, be
made available to the public.
We must nonetheless state our opposition, on policy
grounds, to the draft bill. Section 107 of FISA, 50 U.S.C.
Sec. 1807, already requires that the Attorney General provide,
on an annual basis, data on the use of FISA to the
Administrative Office of the United States Courts and to
Congress. Under this section, the Attorney General must report
the total number of applications made for orders and extensions
of orders approving electronic surveillance under FISA, and the
total number of such orders and extensions either granted,
modified, or denied. Though not required under the Act, the
Attorney General also reports such data on physical searches
applied for under FISA. These data and reports are made in
unclassified form and are therefore available to the public.
Under section 108 of FISA, 50 U.S.C. Sec. 1808, the
Attorney General also provides the SSCI and the House Permanent
Select Committee on Intelligence (``HPSCI'') with classified
semi-annual reports containing much more extensive data on the
use of FISA and a review of any significant legal and
operational developments that have occurred during the previous
6 months. These are long and detailed reports that are
painstakingly prepared in the Justice Department and are
obviously, from the questions and comments they generate,
closely scrutinized by the intelligence committees. We have
appreciated the engagement of the Members and staff of SSCI and
HPSCI in responding to these reports and in helping to make
them a better tool for congressional oversight of the Justice
Department's use of FISA. Under FISA, 50 U.S.C. Sec. 1826, the
Attorney General also makes a separate, semi-annual classified
report to SSCI and HPSCI and to the Judiciary Committee of each
House on the use of physical searches under FISA and, in
particular, on the use of physical searches under the Act
against United States persons. In addition to these reports,
the Attorney General and the Department of Justice have
responded informally and formally, at all times during the
year, to questions and issues that arise in these committees on
the use of FISA.
Senator Edwards' draft legislation would amend sections
1807 and 1826 to require additional public disclosures of:
(1) the number of U.S. persons targeted for
electronic surveillance and physical search under FISA;
and
(2) in a manner consistent with the protection of
national security, ``significant interpretations'' of
FISA by the Foreign Intelligence Surveillance Court
(``FISC''), including, as appropriate, redacted
portions of opinions and orders of the FISC.
Under sections 1808 and 1826, the Justice Department currently
provides the SSCI and HPSCI with these numbers and with a
summary of significant legal and operational developments in
FISA in its classified semi-annual reports. The FISC also has,
on a very few occasions, issued procedural rules or rulings
that are unclassified and therefore available at the Court's
initiative to Congress and the public.
However, except for those few rules and rulings, there is
very little in the decisions of the FISC that does not discuss
the facts, the techniques, or the pleading of specific and
highly classified operations under FISA. There is even less in
those decisions and in the numbers that would be disclosed in
the proposed legislation that would not reveal patterns of
practice under FISA that would help our adversaries elude the
eyes and ears of United States intelligence. For example, the
numbers of United States persons targeted under FISA might
reveal the extent to which status as a United States person, as
a practical or operational matter, provides refuge from
scrutiny under FISA. An interpretation by the FISC of the
applicability of FISA to a technique or circumstance, no matter
how conceptually drawn, could provide our adversaries with
clues to relative safe harbors from the reach of FISA. The
terrorists who remain at large in the United States (and likely
the ones who will follow) are sophisticated in their
communications tradecraft and sensitive to the possible use of
FISA against them. They, more than may be apparent to Congress
or to the public, may learn from any further disclosures of
FISA practice and interpretations how better to defeat the
tools of scrutiny under that Act.
Section 107 of FISA and 50 U.S.C. Sec. 1826, which this
bill would alter, have not been amended since their original
enactments in 1978 and 1994, respectively. This suggests to us
that Congress and its constituents believe, as we do, that the
proper forum for the disclosure of FISA operations remains in
the secure rooms of the intelligence committees and not, any
more than is currently provided for in section 107, in the
public domain, which is available to our adversaries. In our
view, the centrality and sensitivity of FISA to our ongoing
national effort against terrorism makes this a particularly
inappropriate time to provide our adversaries with any more
data on the tools we are using so effectively against them.
The Administration strongly believes that our use of the
necessarily secret tool of FISA must, as set forth by the
framers of the Act, be made subject to the keen and diligent
scrutiny of the intelligence committees. But we believe just as
strongly that it is there, rather than in any forum accessible
to our adversaries, that the data on FISA operations described
in this proposed legislation should be disclosed.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of additional
assistance. The Office of Management and Budget has advised us
that from the perspective of the Administration's program,
there is no objection to submission of this letter.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
XIII. Appendix D--Letter From the Department of Justice to Judiciary
Committee Chairman Leahy, Dated December 23, 2002
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, December 23, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Enclosed please find a response to your
written question submitted to the Deputy Attorney General at
the hearing before the Senate Judiciary Committee on May 8,
2002. We are providing a response to question 19 relating to
the changes section 215 of the USA PATRIOT Act made to
provisions of the Foreign Intelligence Surveillance Act (FISA).
The Department is continuing to gather information to answer
the remaining questions posed to the Deputy Attorney General
and the Director of the Federal Bureau of Investigation, and we
will forward those responses as soon as possible.
Please note that the response to question 19 requires the
Department to provide information that is classified at the
SECRET level. That classified information is being delivered to
the Committee under separate cover and in accordance with the
longstanding Executive branch practices on the sharing of
operational intelligence information with Congress.
We appreciate your oversight interest in the Department's
activities pursuant to the USA PATRIOT Act. We look forward to
continuing to work with the Committee as the Department
implements these important new tools for law enforcement in the
fight against terrorism. If we can be of further assistance on
this, or any other matter, please do not hesitate to contact
this office.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
Enclosure.
Questions Submitted by Chairman Leahy
Questions for Director Mueller and Deputy Attorney General Thompson
19. Section 215 of the Patriot Act allows all FBI Special
Agents in Charge to obtain court orders requiring the
production of ``any tangible things (including books, records,
papers, documents, and other items)'' in connection with
terrorism investigations. There have been reports that this
authority is being used to obtain records, without showing
probable cause that a crime has been committed, from a library
or bookstore about what books a person has signed our or
purchased.
(a) Has the FBI, in fact, requested such records in any
investigation of terrorism?
Answer. Section 215 amended the business records authority
found in Title V of the Foreign Intelligence Surveillance Act
(FISA). Under the old language, the FISA Court would issue an
order compelling the production of certain defined categories
of business records upon a showing of relevance and ``specific
and articulable facts'' giving reason to believe that the
person to whom the records related was an agent of a foreign
power. The USA PATRIOT Act changed the standard to simple
relevance and gives the FISA Court the authority to compel
production in relation to an authorized investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a
U.S. person is not conducted solely upon the basis of
activities protected by the First Amendment to the
Constitution.
The classified semi-annual report discussing the use of
sections 1861-1863 of FISA for the period June 30, 2001 through
December 31, 2001 was provided to the Intelligence and
Judiciary committees of both houses of Congress on April 29,
2002. That report was provided under cover letter to each
committee chairman. Although not specified in the statute, the
Department's practice has been to submit the reports covering
January 1 through June 30 of a given year, by the end of
December of that year. The Department of Justice is currently
preparing the semi-annual report covering the period January 1,
2002 through June 30, 2002.
The Department is able at this time to provide information
pertaining to the implementation of section 215 of the USA
PATRIOT Act from January 1, 2002 to the present (December 23,
2002). That information is classified at the SECRET level and,
accordingly, is being delivered to the Committee under separate
cover.
(b) Can such an order be served on a public library to
require the library to produce records about where a library
patron has surfed on the Internet? Has such an order been
sought by the Department or the FBI?
Answer. Such an order could conceivably be served on a
public library although it is unlikely that public libraries
maintain those types of records. If the FBI were authorized to
obtain the information the more appropriate tool for requesting
electronic communication transactional records would be a
National Security Letter (NSL). NSLs can be served on Internet
Service Providers to obtain information such as subscriber
name, screen name or other on-line names, records identifying
addresses of electronic mail sent to and from the account,
records relating to merchandise orders/shipping information,
and so on but not including message content and/or subject
fields.
(c) Do you think that library and bookstore patrons have a
``reasonable expectation of privacy'' in the titles of the
books they have purchased from a bookstore or borrowed from a
library?
Answer. Any right of privacy possessed by library and
bookstore patrons in such information is necessarily and
inherently limited since, by the nature of these transactions,
the patron is reposing that information in the library or
bookstore and assumes the risk that the entity may disclose it
to another. Whatever privacy interests a patron may have are
outweighed by the Government's interest in obtaining the
information in cases where the FBI can show the patron's
relevance to an authorized full investigation to protect
against international terrorism or clandestine intelligence
activities, provided that such investigation of a United States
person is not conducted solely upon the basis of activities
protected by the First Amendment to the Constitution.
------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, December 23, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Enclosed please find responses to
written questions to the Attorney General at the hearing before
the Committee on the Judiciary entitled ``Oversight Hearing of
the Department of Justice'' on July 25, 2002. We are providing
responses to questions 14, 15, 31, 32, 33 and 34, all of which
relate to the implementation of the USA PATRIOT Act, the
changes the Act made to provisions of the Foreign Intelligence
Surveillance Act (FISA), and the FISA process itself. The
Department is continuing to gather information to answer the
remaining questions posed to the Attorney General and we will
forward those responses as soon as possible.
Please note that the response to question 14(b) requires
the Department to provide information that is classified at the
SECRET level. That classified information is being delivered to
the Committee under separate cover and under the longstanding
Executive branch practices on the sharing of operational
intelligence information with Congress.
We appreciate your oversight interest in the Department's
activities pursuant to the USA PATRIOT Act. We look forward to
continuing to work with the Committee as the Department
implements these important new tools for law enforcement in the
fight against terrorism. If we can be of further assistance on
this, or any other matter, please do not hesitate to contact
this office.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
Enclosure.
Written Questions of Senator Patrick Leahy, Chairman of the Senate
Judiciary Committee to the Honorable John Ashcroft
USA PATRIOT Act and Libraries
14. The Committee has learned of growing concern among
professional librarians that the USA PATRIOT Act is leading to
a greater number of federal law enforcement demands for records
of the use of library services, as well as orders to librarians
to keep those requests secret. There is confusion over whether
the orders allow the librarians to disclose the fact of a
request, without disclosing any substance such as the name of
the person involved. It is also not clear whether these secrecy
orders are being issued for general law enforcement purposes
beyond the scope of the Foreign Intelligence Surveillance Act.
(A) Please clarify what the Department is doing to impose
secrecy on its demands for information from libraries.
A Court order issued pursuant to section 1861 of FISA
(amended by section 215 of the USA PATRIOT Act) to compel the
production of certain defined categories of business records
would contain language which prohibits officers, employees or
agents of companies or institutions receiving such an order
from disclosing to the target or to persons outside the company
or institution the fact that the FBI has sought or obtained
access to those defined categories of business records.
An FBI National Security Letter served upon an
establishment, such as a library, for the purpose of obtaining
electronic communications transactional records, contains
language invoking Title 18, United States Code, Section
2709(c), which prohibits any officer, employee, or agent of the
establishment from disclosing to any person that the FBI has
sought or obtained access to that information or records.
(B) How many demands for library information has the
Department made since enactment of the USA PATRIOT Act, as well
as the legal authority that was used to require secrecy?
Section 215 of the USA PATRIOT Act amended the business
records authority found in Title V of the Foreign Intelligence
Surveillance Act (FISA). This authority can be used to obtain
certain types of records from libraries that relate to FBI
foreign intelligence investigations. Under the old language,
the Foreign Intelligence Surveillance Court (FISC) would issue
an order compelling the production of certain defined
categories of business records upon a showing of relevance and
``specific and articulable facts'' giving reason to believe
that the person to whom the records related was an agent of a
foreign power. The USA PATRIOT Act changed the standards to
simple relevance and gives the FISC the authority to compel
production in relation to an authorized investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a
U.S. person is not conducted solely upon the basis of
activities protected by the First Amendment to the
Constitution.
The classified semi-annual report discussing the use of
sections 1861-1863 of FISA for the period June 30, 2001 through
December 31, 2001 was provided to the Intelligence and
Judiciary committees of both houses of Congress on April 29,
2002. That report was provided under cover letter to each
committee chairman. Although not specified in the statute, the
Department's practice has been to submit the reports covering
January 1 through June 30 of a given year, by the end of
December of that year. The Department of Justice is currently
preparing the semi-annual report covering the period January 1,
2002 through June 30, 2002.
The Department is able at this time to provide information
pertaining to the implementation of section 215 of the USA
PATRIOT Act from January 1, 2002 to the present (December 23,
2002). That information is classified at the SECRET level and,
accordingly, is being delivered to the Committee under separate
cover.
(C) How many libraries has the FBI visited (as opposed to
presented with court orders) since passage of USA Patriot Act?
Information has been sought from libraries on a voluntary
basis and under traditional law enforcement authorities not
related to the Foreign Intelligence Survelliance Act or the
changes brought about by the USA PATRIOT Act. While the FBI
does not maintain statistics on the number of libraries visited
by FBI Agents in the course of its investigations, an informal
survey conducted by the FBI indicated that field offices had
sought information from libraries. For example, various offices
followed up on leads concerning e-mail and Internet use
information about specific hijackers from computers in public
libraries.
(D) Is the decision to engage in such surveillance subject
to any determination that the surveillance is essential to
gather evidence on a suspect which the Attorney General has
reason to believe may be engaged in terrorism-related
activities and that it could not be obtained through any other
means?
The authority to compel the production of business records
from libraries does not permit any type of ``surveillance.''
Under the Foreign Intelligence Surveillance Act (FISA),
electronic surveillance authority is permissible upon a showing
of probable cause that the target of the surveillance is a
foreign power or any agent of a foreign power and each of the
facilities or places at which the surveillance is being
directed is being used or is about to be used by a foreign
power or an agent of a foreign power.
As stated above, section 215 of the USA PATRIOT Act amended
the business records authority found in Title V of FISA. This
authority can be used for obtaining certain types of records
from libraries that relate to FBI foreign intelligence
investigations. Under the old language, the FISC would issue an
order compelling the production of certain defined categories
of business records upon a showing of relevance and ``specific
and articulable facts'' giving reason to believe that the
person to whom the records related was an agent of a foreign
power. The PATRIOT Act changed the standards to simple
relevance and gives the FISC the authority to compel production
in relation to an authorized investigation to protect against
international terrorism or clandestine intelligence activities,
provide that such investigation of a U.S. person is not
conducted solely upon the basis of activities protected by the
First Amendment to the Constitution.
15. Sec. 215 of the Act expands the range of records that
can be requested from a library or educational institution to
include ``business records'' which may include information
about individuals beyond the target of an investigation. What
precautions is the Attorney General taking to isolate out only
those records related to a specific target? How is the Attorney
General ensuring the security and confidentiality of the
records of others? How promptly have those records been
returned to the institutions from which they were obtained?
The current standard for obtaining business records is
``relevance'' but it requires more than just the Special
Agent's belief that the records may be related to an ongoing
investigation. Use of this technique is authorized only in full
investigations properly opened in accordance with the Attorney
General Guidelines for FBI Foreign Intelligence Collection and
Foreign Counterintelligence Investigations (FCIG). The FISA
business records authority stipulates that no investigation of
a U.S. person may be conducted solely on the basis of
activities protected by the First Amendment to the
Constitution. The FISA Court will not order the production of
business records unless it can be shown that the individual for
whom the records are being sought is related to an authorized
investigation.
The security and confidentiality of records is guaranteed
by the FISA law which prohibits officers, employees or agents
of companies or institutions receiving orders from disclosing
to the target or to persons outside the company or institution
the fact that the FBI has sought or obtained access to
information or records. The FBI obtains copies, not originals,
of records from companies and institutions. Thus, there is no
need to return records.
FBI Headquarters has charged field offices with the
responsibility for establishing and enforcing appropriate
review and approval processes for use of these expanded
authorities. Compliance with these and other requirements is
monitored through inspections and audits conducted by the FBI
Inspection Division, the Intelligence Oversight Board, and the
Department's Office of Intelligence Policy and Review.
------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, December 23, 2002.
Hon. Russell D. Feingold,
Chairman, Subcommittee on the Constitution,
Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Mr. Chairman: Enclosed please find responses to two
questions posed to the Attorney General on implementation of
the USA PATRIOT Act in your letter of July 24, 2002. We are
providing responses to questions 2 and 4 relating to the
changes the USA PATRIOT Act made to provisions of the Foreign
Intelligence Surveillance Act.
Please note that the responses to both questions 2 and 4
require the Department to provide information classified at the
SECRET level. That classified information is being delivered
under separate cover and under the longstanding Executive
branch practices on the sharing of operational intelligence
information with Congress.
The Department is continuing to gather information
responsive to the remaining questions posed in your letter and
we will forward the responses to you as soon as possible. We
note that in response to question 7 of your letter, copies of
the Department's responses to the House Judiciary Committee's
letter of June 13, 2002 on USA PATRIOT Act implementation were
forwarded to your staff on July 29, 2002 and August 26, 2002.
We appreciate your oversight interest in the Department's
activities pursuant to the USA PATRIOT Act. We look forward to
continuing to work with the Committee as the Department
implements these important new tools for law enforcement in the
fight against terrorism.
If we can be of further assistance on this, or any other
matter, please do not hesitate to contact this office.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
Enclosure.
Feingold PATRIOT Act Question #2 and #4 (from letter dtd July 24, 2002)
2. Section 215 of the Act grants the FBI broad new power to
subpoena business records for investigations to protect against
international terrorism.
a. Please (i) provide the number of instances in which the
FBI or other federal agencies have invoked this subpoena power
and (ii) indicate the type of businesses served with the
subpoena (e.g., libraries, bookstores, internet booksellers,
etc.).
b. How many entities have challenged the subpoena and the
information sought? If any institutions have objected to or
challenged the validity or scope of the subpoena, what has been
the nature of the objection?
c. How many of these subpoenas have resulted in the
collection of information that would otherwise be protected by
state or federal privacy protection laws (e.g., medical,
financial, educational or library records)?
d. How many of these subpoenas have directly led to the
prosecution of terrorists or the prevention of acts of
terrorism? For each subpoena that has led to the prosecution of
terrorists or the prevention of acts of terrorism, please
describe the prosecution or act of terrorism that was
prevented.
e. How many subpoenas have been sought and granted to
obtain the records of persons not the target of an
investigation? For each such subpoena, please explain why the
Department sought the subpoena.
f. Please provide copies of all policy directives or
guidance issued to law enforcement officials about requesting
subpoenas pursuant to Section 215.
Answer. Section 215 of the USA PATRIOT ACT amended FISA (50
U.S.C. Sec. Sec. 1861-1862) (access to certain business records
for foreign intelligence and international terrorism
investigations), and repeals section 1863. This provision of
FISA concerns the ability of the FBI to make an application to
the Court ``for an order requiring the production of any
tangible things (including books, records, papers, documents,
and other items)'' as long as the information is requested for
the appropriate reasons as defined in that section of FISA.
Under the old language, the FISA Court would issue an order
compelling the production of certain defined categories of
business records upon a showing of relevance and ``specific and
articulable facts'' giving reason to believe that the person to
whom the records related was an agent of a foreign power. The
USA PATRIOT Act changed the standard to simple relevance and
gives the FISA Court the authority to compel production in
relation to an authorized investigation to obtain foreign
intelligence information to protect against international
terrorism or clandestine intelligence activities, provided that
such investigation of a U.S. person is not the conducted solely
upon the basis of activities protected by the First Amendment
to the Constitution.
The classified semi-annual report discussing the use of
sections 1861-1863 of FISA for the period June 30, 2001 through
December 31, 2001 was provided to the Intelligence and
Judiciary committees of both houses of Congress on April 29,
2002. That report was provided under cover letter to each
committee chairman. Although not specified in the statute, the
Department's practice has been to submit the reports covering
January 1 through June 30 of a given year, by the end of
December of that year. The Department of Justice is currently
preparing the semi-annual report covering the period January 1,
2002 through June 30, 2002.
The Department is able at this time to provide information
pertaining to the implementation of section 215 of the USA
PATRIOT Act from January 1, 2002 to the present (December 23,
2002). That information is classified at the SECRET level and,
accordingly, is being delivered to the Committee under separate
cover.
It should be noted that information has been sought from
libraries on a voluntary basis and under traditional law
enforcement authorities not related to the Foreign Intelligence
Surveillance Act or the changes brought about by the USA
PATRIOT Act. While the FBI does not maintain statistics on the
number of libraries visited by FBI Agents in the course of its
investigations, an informal survey conducted by the FBI
indicated that field offices have sought information from
libraries. For example, various offices followed up on leads
concerning e-mail and Internet use information about specific
hijackers from computers in public libraries.
Policy guidance or directives to law enforcement on Section
215: On October 26, 2001, the FBI's Office of General Counsel,
National Security Law Unit, issued guidance to all FBI
Divisions, including all FBI Headquarters and field offices,
that summarized the changes made by the USA PATRIOT Act,
including the changes made by section 215 of the Act. A copy of
that memorandum is provided herewith.
4. Section 206 of the Act provides federal law enforcement
with authority to conduct roving surveillance of targets.
a. How many FISA warrants have been issued pursuant to
Section 206?
The number of times the Department has obtained authority
for the ``roving'' surveillance provided under section 206 of
the USA PATRIOT Act is classified at the SECRET level. Pursuant
to the longstanding Executive Branch practice on sharing
operational intelligence information with Congress, the
Department will provide that number to the Senate Select
Committee on Intelligence (``SSCI''), which is the committee
responsible for receiving and handling sensitive intelligence
information. This number will be provided to the SSCI under
separate cover and with the expectation that it will be handled
in a manner deemed appropriate under longstanding applicable
Senate procedures.
We can, in this unclassified format, make the assurance
that the Department's request for use of such authority, based
upon a determination by the Foreign Intelligence Surveillance
Court that there is probable cause to believe that the actions
of the target of surveillance may have the effect of thwarting
the identification of those carriers whose assistance will be
necessary to carrying out the Court's orders, has been limited
to those cases where the surveillance ordered by the Court
would otherwise be, or would otherwise likely be, in jeopardy.
b. What percentage of surveillance conducted pursuant to
Section 206 has included surveillance of persons other than the
target individual against whom the warrant was issued?
The intercepted communications of individuals other than
the targets of Court-authorized surveillance are minimized
according to procedures established in Attorney General
guidelines and approved by the Foreign Intelligence
Surveillance Court. The same standard minimization procedures
apply to the communications intercepted under the surveillance
authority granted pursuant to section 206 of the USA PATRIOT
Act as apply to communications intercepted under any other
Court-authorized surveillance under FISA. The percentage of the
minimized communications of individuals other than the target
individual conducted pursuant to section 206 of the USA PATRIOT
Act is a statistic that is not maintained by the FBI and is
therefore not readily retrievable.
c. For each surveillance conducted under this section, how
many non-target persons were included in the surveillance?
As stated above, the intercepted communications of
individuals other than the targets of Court-authorized
surveillance are minimized according to procedures established
in Attorney General guidelines and approved by the Foreign
Intelligence Surveillance Court. The same standard minimization
procedures apply to the communications intercepted under the
surveillance authority granted pursuant to section 206 of the
USA PATRIOT Act as apply to communications intercepted under
any other Court-authorized surveillance under FISA. The number
of minimized communications of non-target individuals for each
surveillance conducted pursuant to section 206 of the USA
PATRIOT Act is a statistic that is not maintained by the FBI
and is therefore not readily retrievable.
d. Please disclose all policy directives or guidelines
issued to law enforcement officials who request and conduct
this type of surveillance authority.
On October 26, 2001, the FBI's Office of General Counsel,
National Security Law Unit, issued guidance to all FBI
Divisions, including all FBI Headquarters and field offices,
that summarized the changes made by the USA PATRIOT Act,
including the changes made by section 206 of the Act. A copy of
that memorandum is provided herewith.
XIV. Appendix E--Letter From the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman Shelby,
Dated July 31, 2002
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 31, 2002.
Hon. Bob Graham,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Hon. Richard C. Shelby,
Vice-Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Dear Mr. Chairman and Mr. Vice Chairman: The letter
presents the views of the Justice Department on S. 2586, a bill
``[t]o exclude United States persons from the definition of
`foreign power' under the Foreign Intelligence Surveillance Act
of 1978 relating to international terrorism.'' The bill would
extend the coverage of the Foreign Intelligence Surveillance
Act (``FISA'') to individuals who engage in international
terrorism or activities in preparation therefor without a
showing of membership in or affiliation with an international
terrorist group. The bill would limit this type of coverage to
non-United States persons. The Department of Justice supports
S. 2586.
We note that the proposed title of the bill is potentially
misleading. The current title is ``To exclude United States
persons from the definition of `foreign power' under the
Foreign Intelligence Surveillance Act of 1978 relating to
international terrorism.'' A better title, in keeping with the
function of the bill, would be something along the following
lines: ``To expand the Foreign Intelligence Surveillance Act of
1978 (`FISA') to reach individuals other than United States
persons who engage in international terrorism without
affiliation with an international terrorist group.''
Additionally, we understand that a question has arisen as
to whether S. 2586 would satisfy constitutional requirements.
We believe that it would.
FISA allows a specially designated court to issue an order
approving an electronic surveillance or physical search, where
a significant purpose of the surveillance or search is ``to
obtain foreign intelligence information.'' Id.
Sec. Sec. 1804(a)(7)(B), 1805(a). Given this purpose, the court
makes a determination about probable cause that differs in some
respects from the determination ordinarily underlying a search
warrant. The court need not find that there is probable cause
to believe that the surveillance or search, in fact, will lead
to foreign intelligence information, let alone evidence of a
crime, and in many instances need not find probable cause to
believe that the target has committed a criminal act. The court
instead determines, in the case of electronic surveillance,
whether there is probable cause to believe that ``the target of
the electronic surveillance is a foreign power or an agent of a
foreign power,'' id. Sec. 1805(a)(3)(A), and that each of the
places at which the surveillance is directed ``is being used,
or about to be used, by a foreign power or an agent of a
foreign power,'' id. Sec. 1805(a)(3)(B). The court makes
parallel determinations in the case of a physical search. Id.
Sec. 1842(a)(3)(A), (B).
The terms ``foreign power'' and ``agent of a foreign
power'' are defined at some length, id. Sec. 1801(a), (b), and
specific parts of the definitions are especially applicable to
surveillances or searches aimed at collecting intelligence
about terrorism. As currently defined, ``foreign power''
includes ``a group engaged in international terrorism or
activities in preparation therefor,'' id. Sec. 1801(a)(4)
(emphasis added), and an ``agent of a foreign power'' includes
any person who ``knowingly engages in sabotage or international
terrorism or activities that are in preparation therefor, for
or on behalf of a foreign power,'' id. Sec. 1801(b)(2)(C).
``International terrorism'' is defined to mean activities that
(1) involve violent acts or acts dangerous to human
life that are a violation of the criminal laws of the
United States or of any State, or that would be a
criminal violation if committed within the jurisdiction
of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian
population;
(B) to influence the policy of a government
by intimidation or coercion; or
(C) to affect the conduct of a government by
assassination or kidnapping; and
(3) occur totally outside the United States, or
transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in
which their perpetrators operate or seek asylum.
Id. Sec. 1801(c).
S. 2586 would expand the definition of ``foreign power'' to
reach persons who are involved in activities defined as
``international terrorism,'' even if these persons cannot be
shown to be agents of a ``group'' engaged in international
terrorism. To achieve this expansion, the bill would add the
following italicized words to the current definition of
``foreign power'': ``any person other than a United States
person who is, or a group that is, engaged in international
terrorism or activities in preparation therefor.''
The courts repeatedly have upheld the constitutionality,
under the Fourth Amendment, of the FISA provisions that permit
issuance of an order based on probable cause to believe that
the target of a surveillance or search is a foreign power or
agent of a foreign power. The question posed by S. 2586 would
be whether the reasoning of those cases precludes expansion of
the term ``foreign power'' to include individual international
terrorists who are unconnected to a terrorist group.
The Second Circuit's decision in United States v. Duggan,
743 F.2d 59 (2d Cir. 1984), sets out the fullest explanation of
the ``governmental concerns'' that had led to the enactment of
the procedures in FISA. To identify these concerns, the court
first quoted from the Supreme Court's decision in United States
v. United States District Court, 407 U.S. 297, 308 (1972)
(``Keith''), which addressed ``domestic national security
surveillance'' rather than surveillance of foreign powers and
their agents, but which specified the particular difficulties
in gathering security intelligence'' that might justify
departures from the usual standards for warrants: ``[Such
intelligence gathering] is often long range and involves the
interrelation of various sources and types of information. The
exact targets of such surveillance may be more difficult to
identify than in surveillance operations against many types of
crime specified in Title III [dealing with electronic
surveillance in ordinary criminal cases]. Often, too, the
emphasis of domestic intelligence gathering is on the
prevention of unlawful activity or the enhancement of the
government's preparedness for some possible future crisis or
emergency. Thus the focus of domestic surveillance may be less
precise than that directed against more conventional types of
crime.'' Duggan, 743 F.2d at 72 (quoting Keith, 407 U.S. at
322). The Second Circuit then quoted a portion of the Senate
Committee Report on FISA. ``[The] reasonableness [of FISA
procedures] depends, in part, upon an assessment of the
difficulties of investigating activities planned, directed, and
supported from abroad by foreign intelligence services and
foreign-based terrorist groups. * * * Other factors include the
international responsibilities of the United States, the duties
of the Federal Government to the States in matters involving
foreign terrorism, and the need to maintain the secrecy of
lawful counterintelligence sources and methods.'' Id. at 73
(quoting S. Rep. No. 95-701, at 14-15, reprinted in 1978
U.S.C.C.A.N. 3973, 3983) (``Senate Report''). The court
concluded:
Against this background, [FISA] requires that the
FISA Judge find probable cause to believe that the
target is a foreign power or an agent of a foreign
power, and that the place at which the surveillance is
to be directed is being used or is about to be used by
a foreign power or an agent of a foreign power; and it
requires him to find that the application meets the
requirements of [FISA]. These requirements make it
reasonable to dispense with a requirement that the FISA
Judge find probable cause to believe that surveillance
will in fact lead to the gathering of foreign
intelligence information.
Id. at 73. The court added that, a fortiori, it ``reject[ed]
defendants' argument that a FISA order may not be issued
consistent with the requirements of the Fourth Amendment unless
there is a showing of probable cause to believe the target has
committed a crime.'' Id. at n.5. See also, e.g., United States
v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987); United States
v. Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (per then-
Circuit Judge Kennedy); United States v. Nicholson, 955 F.
Supp. 588, 590-91 (E.D. Va. 1997).
We can conceive of a possible argument for distinguishing,
under the Fourth Amendment, the proposed definition of
``foreign power'' from the definition approved by the courts as
the basis for a determination of probable cause under FISA as
now written. According to this argument, because the proposed
definition would require no tie to a terrorist group, it would
improperly allow the use of FISA where an ordinary probable
cause determination would be feasible and appropriate--where a
court could look at the activities of a single individual
without having to assess ``the interrelation of various sources
and types of information,'' see Keith, 407 U.S. at 322, or
relationships with foreign-based groups, see Duggan, 743 F.2d
at 73; where there need be no inexactitude in the target or
focus of the surveillance, see Keith, 407 U.S. at 322; and
where the international activities of the United States are
less likely to be implicated, see Duggan, 743 F.2d at 73.
However, we believe that this argument would not be well-
founded.
The expanded definition still would be limited to
collecting foreign intelligence for the ``international
responsibilities of the United States, [and] the duties of the
Federal Government to the States in matters involving foreign
terrorism.'' Id. at 73 (quoting Senate Report at 14). The
individuals covered by S. 2586 would not be United States
persons, and the ``international terrorism'' in which they
would be involved would continue to ``occur totally outside the
United States, or transcend national boundaries in terms of the
means by which they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in which their
perpetrators operate or seek asylum.'' 50 U.S.C.
Sec. 1801(c)(3). These circumstances would implicate the
``difficulties of investigating activities planned, directed,
and supported from abroad,'' just as current law implicates
such difficulties in the case of foreign intelligence services
and foreign-based terrorist groups. Duggan, 743 F.2d at 73
(quoting Senate Report at 14). To overcome those difficulties,
a foreign intelligence investigation ``often [will be] long
range and involve[ ] the interrelation of various sources and
types of information.'' Id. at 72 (quoting Keith, 407 U.S. at
322). This information frequently will require special
handling, as under the procedures of the FISA court, because of
``the need to maintain the secrecy of lawful
counterintelligence sources and methods.'' Id. at 73 (quoting
Keith, 407 U.S. at 322). Furthermore, because in foreign
intelligence investigations under the expanded definition
``[o]ften * * * the emphasis * * * [will be] on the prevention
of unlawful activity or the enhancement of the government's
preparedness for some possible future crisis or emergency,''
the ``focus of * * * surveillance may be less precise than that
directed against more conventional types of crime.'' Id. at 73
(quoting Keith, 407 U.S. at 322). Therefore, the same interests
and considerations that support the constitutionality of FISA
as it now stands would provide the constitutional justification
for the S. 2586.
Indeed, S. 2586 would add only a modest increment to the
existing coverage of the statute. As the House Committee Report
on FISA suggested, a ``group'' of terrorists covered by current
law might be as small as two or three persons. H.R. Rep. No.
95-1283, at pt. 1, 74 and n.38 (1978). The interests that the
courts have found to justify the procedures of FISA are not
likely to differ appreciably as between a case involving such a
group of two or three persons and a case involving a single
terrorist.
The events of the past few months point to one other
consideration on which courts have not relied previously in
upholding FISA procedures--the extraordinary level of harm that
an international terrorist can do to our Nation. The touchstone
for the constitutionality of searches under the Fourth
Amendment is whether they are ``reasonable.'' As the Supreme
Court has discussed in the context of ``special needs cases,''
whether a search is reasonable depends on whether the
government's interests outweigh any intrusion into individual
privacy interests. In light of the efforts of international
terrorists to obtain weapons of mass destruction, it does not
seem debatable that we could suffer terrible injury at the
hands of a terrorist whose ties to an identified ``group''
remained obscure. Even in the criminal context, the Court has
recognized the need for flexibility in cases of terrorism. See
Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (``the Fourth
Amendment would almost certainly permit an appropriately
tailored roadblock set up to thwart an imminent terrorist
attack''). Congress could legitimately judge that even a single
international terrorist, who intends ``to intimidate or coerce
a civilian population'' or ``to influence the policy of a
government by intimidation or coercion'' or ``to affect the
conduct of a government by assassination or kidnapping,'' 50
U.S.C. Sec. 1801(c)(2), acts with the power of a full terrorist
group or foreign nation and should be treated as a ``foreign
power'' subject to the procedures of FISA rather than those
applicable to warrants in criminal cases.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of additional
assistance. The Office of Management and Budget has advised us
that from the perspective of the Administration's program,
there is no objection to submission of this letter.
Sincerely,
Patrick M. O'Brien
(For Daniel J. Bryant, Assistant Attorney General).
XV. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 113, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
DEFINITIONS
Sec. 101. As used in this title:
(a) ``Foreign power'' means--
(1) a foreign government or any component thereof,
whether or not recognized by the United States;
* * * * * * *
(6) an entity that is directed and controlled by a
foreign government or governments.
(b) ``Agent of a foreign power'' means--
(1) any person other than a United States person,
who--
(A) acts in the United States as an officer
or employee of a foreign power, or as a member
of a foreign power as defined in subsection
(a)(4);
(B) acts for or on behalf of a foreign power
which engages in clandestine intelligence
activities in the United States contrary to the
interests of the United States, when the
circumstances of such person's presence in the
United States indicate that such person may
engage in such activities in the United States,
or when such person knowingly aids or abets any
person in the conduct of such activities or
knowingly conspires with any person to engage
in such activities; [or]
(C) engages in international terrorism or
activities in preparation therefor; or
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