Testimony of Joseph Onek

Senior Policy Analyst, Open Society Institute

Senior Counsel, Constitution Project

Senate Select Committee on Intelligence

May 24th, 2005




Mr. Chairman, Senator Rockefeller, Members of the Committee.  I greatly appreciate this opportunity to testify on the pending proposals to extend and amend provisions of the Patriot Act and the Foreign Intelligence Surveillance Act.  The Patriot Act and FISA are important tools in the fight against terrorism, but both raise significant civil liberties issues.   We therefore need to subject them to careful and continuing scrutiny.

Administrative Subpoenas

The draft legislation proposes to amend FISA by providing for administrative subpoenas in national security investigations. Administrative subpoenas are now used in many types of investigations, and the government asks why they shouldn't also be used by the FBI in the fight against terrorism.  But the government ignores some very crucial facts.

      First, administrative subpoenas are typically used for discrete purposes and to obtain limited types of records.  But here the subpoenas would be seeking records relating to foreign intelligence and terrorism.  The range of activities that relate foreign intelligence and terrorism is enormous and, therefore, there is virtually no limit to the type of records the FBI will be able to subpoena. The FBI will seek financial records, employment records, transportation records, medical records and yes, sometimes, library records. The collection of this massive array of records creates special problems.  Inevitably, FBI investigations will sweep up sensitive information about innocent, law-abiding people. How do we assure this information is not abused?   The FBI will also sweep up information about people who have nothing whatsoever to do with terrorism but who may have committed other infractions, both minor and major.  What will the FBI do with this information?  Should it use the information in criminal prosecutions or other proceedings unrelated to terrorism?  Does it make any difference that a highly disproportionate amount of this information will be collected about people who (quite naturally and innocently) happen to write, visit and send money to places such as Pakistan and Iraq?    

      I am not suggesting that the Committee now address these complex privacy and profiling issues.   But I do believe the Committee should keep these issues in mind as it considers whether to give the FBI essentially unlimited subpoena authority.

      There is a second crucial difference between the ordinary use of administrative subpoenas and proposal before the Committee.   As set forth in the draft, the FBI's subpoenas must be kept completely secret whenever the FBI says that national security requires non-disclosure.  This means that a record holder who receives a subpoena that is overbroad or impinges on first amendment rights will not be able to complain to the press, the Congress or the public.

      This is not an insignificant disadvantage.  Just last year, a federal prosecutor in Iowa served grand jury subpoenas on Drake University and members of the university community in connection with a peaceful antiwar forum.  The university community protested loudly, the press took up the controversy, and the subpoenas were promptly withdrawn.  This cannot happen when the subpoenas are secret.

      If subpoenas covering a vast array of records are going to be served in secret, there must be additional safeguards.  The most obvious safeguard is prior judicial approval, such as is provided, however inadequately, in Section 215 of the Patriot Act.  We should not permit, for the first time in our history, the massive use of secret subpoenas that have not been approved by a judge.

      I recognize that the proposed draft provides record holders with the opportunity to challenge any subpoena in federal court. But this opportunity is no substitute for prior judicial approval. Third party record holders will generally have no incentive to undertake the burdens of a federal court challenge, and the secrecy provisions further reduce the likelihood of a challenge.   If, for example, a hospital receives a subpoena for a massive number of medical records and the subpoena is made public, the medical staff and patient groups might pressure the hospital to file a challenge.  There will be no such pressure with a secret subpoena. Thus, there will be little judicial supervision of the FBI's use of secret subpoenas.

      The FBI should be required to obtain a court order when it seeks access to business records. I believe the current standards for issuing such orders, as set forth in Section 215 of the Patriot Act, should be tightened along the lines suggested by the SAFE Act. Subpoena power should be limited to records involving or pertaining to an “agent of a foreign power” as defined in FISA.  But in any event there must be a requirement for judicial approval. Such a requirement imposes a salutary discipline on the government.   It forces the government to think through and describe, in the words of Deputy Attorney General Comey, the “meaningful, logical connection between the record sought and the subject of the investigation.”  If the government believes that obtaining a court order is too slow in certain circumstances, it should propose procedures for the prompter handling of urgent requests.

      In sum, I believe the Committee should not go forward with the proposal for new subpoena authority for the FBI.    But if the Committee does go forward, it should clarify and improve certain provisions. 

      Section 808(a)(3)(b), providing for judicial review,  states that upon the government's request the court "shall" receive government submissions ex parte and in camera.  Of course, there may be a need for the government to submit classified information to the court ex parte and in camera.  But under the section as written the government could make a submission to the court without even notifying the opposing party of that fact and without disclosing those portions of its submission, such as
discussions of legal precedents, that do not require special protection. This section should be modified to grant the court discretion to assure that, as in the Classified Information Procedures Act, both the government's interest in protecting national security and the private party's interest in a fair hearing are appropriately accommodated.  

    Section 808(d), Standard of Review, is ambiguously worded.  The standard for court modification of a subpoena is whether compliance would be "unreasonable or oppressive", while the standard for setting aside a subpoena is "abuse of discretion." What is the relationship between the two standards?  Can there be an unreasonable or oppressive subpoena that does not constitute an abuse of discretion?  Can there be an abuse of discretion based on other factors?    


Mail Covers


     In addition to granting the FBI new subpoena power, the draft legislation proposes to amend FISA to authorize the FBI to request mail covers from the Postal Service.   As with the subpoena power, it is not clear why this new authority is necessary.  The FBI already has the ability to request mail covers under Postal Service regulations.


     Perhaps, however, this is an opportunity to make the laws regulating FBI investigations more coherent.   Mail covers are conceptually similar to the pen registers and trap and trace devices that are presently regulated by Title IV of FISA.     Why shouldn’t they be treated in a similar fashion under FISA?   This would require the FBI to obtain a court order for mail covers.  As you know from previous Committee hearings, there is some dispute about the standards for the issuance of pen register and trap and trace orders.  I will not go into that here.  The crucial point is that there should be some judicial supervision and some coherence in the law.    


Lone Wolf


      The Committee draft repeals the sunset of the "lone wolf" provision that was enacted just a few months ago.   I believe the "lone wolf” provision may well be unconstitutional and that, in light of criminal surveillance authorities, it is unnecessary.  The Committee has not yet received the government’s first report on the provision and cannot have an adequate record as to how the provision has been used and whether alternative surveillance authorities were available.  I suggest, therefore, that the current sunset requirement be extended until December 31, 2007. This will give Committee and the Congress a better opportunity to assess the need for the provision.  


Other FISA Issues

      Section 203 of the Committee's draft amends FISA by stating that "foreign intelligence information" includes information relating to national security criminal prosecutions.  Once again, I am not sure why this amendment is necessary, since there is widespread agreement that the “wall” no longer exists.  But the amendment does underscore the very significant fact that today an increasing number of criminal cases involve the use of FISA evidence.  This requires a reexamination of whether current procedures for the use of FISA evidence in criminal cases are fair.   


      As Jim Dempsey testified before this Committee in April, criminal defendants in most cases can obtain access to the affidavit that served as the basis for the wiretap order or search warrant and thus can challenge the basis for the wiretap or search in an adversarial proceeding.   By contrast, defendants in FISA cases have never been granted such access and have never had a meaningful opportunity to challenge the basis for the search.   Congress should assure that normal criminal adversary procedures apply when FISA evidence is used against individuals, with appropriate use of the Classified Information Procedures Act to protect government interests.   

      There is another problem with FISA that has not been adequately addressed.  Under FISA, the government can obtain an order to conduct secret searches of any home or office.  Unlike the "sneak and peek" searches authorized in Section 213 of the Patriot Act, these searches remain secret forever unless the government chooses to disclose them or there is a criminal trial involving evidence seized during the search. This means that innocent Americans have had, and will have, their most intimate records and belongings searched by the government without ever being informed of the search. Similarly, although Title III wiretaps are ultimately disclosed, FISA wiretaps are not.

     I believe that FISA should be amended to assure that individuals are informed they have been subject to a secret FISA search or wiretap unless there are valid national security grounds to continue the secrecy.   In cases where there has been a secret search or wiretap but no disclosure of that fact in a criminal trial the government should be required to periodically file a motion with the FISA court requesting and justifying continued non-disclosure.




      In concluding, I would like to commend the Committee for its attention to congressional oversight, including the reporting requirements contained in the draft legislation.  Congressional oversight is crucial and must be pursued vigorously.  But executive branch accountability requires more than congressional oversight; it requires judicial oversight and as much openness as is consistent with national security.   When, as in terrorism investigations, a high degree of secrecy is warranted, a meaningful role for the judiciary becomes all the more important. The Committee should not eviscerate that role by granting broad subpoena power to the FBI.