S. Hrg. 109-341
USA PATRIOT ACT
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HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
USA PATRIOT ACT
APRIL 19, 2005
APRIL 27, 2005
MAY 24, 2005
__________
Printed for the use of the Select Committee on Intelligence
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
PAT ROBERTS, Kansas, Chairman
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
ORRIN G. HATCH, Utah CARL LEVIN, Michigan
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri RON WYDEN, Oregon
TRENT LOTT, Mississippi RICHARD J. DURBIN, Illinois
OLYMPIA J. SNOWE, Maine EVAN BAYH, Indiana
CHUCK HAGEL, Nebraska JOHN EDWARDS, North Carolina
SAXBY CHAMBLISS, Georgia BARBARA A. MIKULSKI, Maryland
JOHN W. WARNER, Virginia
BILL FRIST, Tennessee, Ex Officio
HARRY REID, Nevada, Ex Officio
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Bill Duhnke, Staff Director
Andrew W. Johnson, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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Day One
Hearing held in Washington, DC:
April 19, 2005............................................... 1
Statements of :
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas... 1
Prepared statement....................................... 2
Rockefeller, Hon. John D. IV, a U.S. Senator from the State
of West Virginia, prepared statement....................... 29
Nojeim, Gregory T., Associate Director and Chief Legislative
Counsel, ACLU, prepared statement.......................... 29
Dempsey, James X., Executive Director, Center for Democracy &
Technology, prepared statement............................. 45
MacDonald, Heather, Senior Fellow at the Manhattan Institute
for Policy Research, prepared statement.................... 57
Supplemental Materials:
Testimony on the USA PATRIOT Act by Bob Barr................. 4
Letter from Edwin Meese III and Paul Rosenzweig.............. 10
Testimony of Orin S. Kerr.................................... 23
Statement for the Record by Kate Martin...................... 26
Chart on the USA PATRIOT Act................................. 42
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Day Two
Hearing held in Washington, DC:
April 27, 2005............................................... 87
Statements of:
Gonzales, Hon. Alberto R., Attorney General, Department of
Justice.................................................... 97
Prepared statement....................................... 90
Mueller, Hon. Robert S. III, Director, Federal Bureau of
Investigation.............................................. 100
Goss, Hon. Porter J., Director, Central Intelligence Agency.. 104
Prepared statement....................................... 102
Supplemental Materials:
April 4, 2005 Letter from William E. Moschella, Assistant
Attorney General to Senator Arlen Specter.................. 130
April 26, 2005 Letter from William E. Moschella, Assistant
Attorney General to Senator Dianne Feinstein............... 137
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Day Three
Hearing held in Washington, DC:
May 24, 2005................................................. 153
Statements of:
Caproni, Ms. Valerie, General Counsel, Federal Bureau of
Investigation.............................................. 168
Prepared statement....................................... 166
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement............................. 176
Kris, David S., former Associate Deputy Attorney General,
U.S. Department of Justice, prepared statement............. 188
Onek, Joseph, Senior Policy Analyst, Open Society Institute,
prepared statement......................................... 208
Collins, Daniel P., former Associate Deputy Attorney General,
U.S. Department of Justice, prepared statement............. 212
Dempsey, James X., Executive Director, Center for Democracy
and Technology, prepared statement......................... 221
Supplemental Materials:
May 23, 2005 Letter from Richard A. Seamon, University of
Idaho...................................................... 155
THE USA PATRIOT ACT OF 2001
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DAY ONE
TUESDAY, APRIL 19, 2005
United States Senate,
Senate Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 3:05 p.m., in
room SH-216, Hart Senate Office Building, Hon. Pat Roberts
(Chairman of the Committee) presiding.
Committee Members Present: Senators Roberts, Bond, Lott,
Snowe, Chambliss, Warner, Rockefeller, Feinstein, Wyden, and
Corzine.
OPENING STATEMENT OF HON. PAT ROBERTS
Chairman Roberts. The Committee will come to order.
I would like to apologize to our witnesses for the 40-
minute delay due to the procedural votes that we had on the
floor of the Senate. I guess the good news is that, at least
for the time being, we have completed those votes. The
challenge that we face is that at 5 o'clock we will have
additional votes. We're down already to 1 hour and 45 minutes.
Now I have a marvelous opening statement that deals with
the PATRIOT Act and all of the varied concerns and positives
that are involved with that Act and your concerns as well. But,
I am going to simply submit that for the record in an attempt
to hear from you.
Can we keep the applause down a little bit?
[Laughter.]
Chairman Roberts. I think the Vice Chairman is going to do
likewise, although he will seek his own counsel.
We've invited a panel of outside experts to provide their
views of the USA PATRIOT Act and their opinions on those
provisions of the Act which will expire later this year.
Our witnesses are Mr. Gregory T. Nojeim, the Associate
Director and Chief Legislative Counsel for the American Civil
Liberties Union; Mr. Jim Dempsey, Executive Director of the
Center for Democracy and Technology; and Ms. Heather MacDonald,
a John M. Olen fellow at the Manhattan Institute. The Committee
thanks all of our witnesses for being here today.
[The prepared statement of Chairman Roberts follows:]
Prepared Statement of Hon. Pat Roberts
The Committee will come to order.
On September 11, 2001, 19 terrorists hijacked four flights over the
United States. We all remember the events of that day. The images of
the collapse of the World Trade Center, the burning Pentagon, and the
crash site of United Flight 93 in Shanksville, Pennsylvania should
never be forgotten.
But, the story of that day was written well before September 11th,
and it was written by the terrorists that lived and trained within the
United States. They rented apartments, bought cars, made telephone
calls, sent e-mails, surfed the Internet, received wire transfers, and
attended flight schools.
The terrorists hid in the open--their sinister plans and intentions
camouflaged by millions of innocent, lawful transactions that occur
every day in the United States.
The activities of the hijackers went largely unnoticed by our
intelligence and law enforcement agencies. As this Committee and the 9/
11 Commission have pointed out, systemic flaws in our national security
agencies prevented full cooperation that might have stopped these
attacks.
But, in addition to these systemic flaws, our national security
agencies were operating under obsolete authorities. Their hands were
tied by inaccurate interpretations of existing law that restricted
common-sense sharing of intelligence information.
The USA PATRIOT Act was the first legislative effort by Congress
and the President to reform our national security apparatus in response
to the attacks of September 11th. The Act brought intelligence tools
into the information age. Collection authorities that had been enacted
during the era of the rotary phone had not kept pace with the new world
of e-mail, the Internet, and mobile phones. The Act also tore down
``walls'' erected by overly cautious lawyers that had prevented
information sharing and coordination between law enforcement and
intelligence officials.
The USA PATRIOT Act was drafted and passed by overwhelming
majorities in both the Senate and the House and signed by the President
on October 26, 2001. But, to describe the Act as a rash response to a
horrific attack would be a mistake. Many of the provisions in the Act
had been the subject of deliberation for years. The provisions were
enacted with an acute awareness of rights guaranteed by the
Constitution and applicable judicial precedents. The USA PATRIOT Act
reflected a careful balancing of national security and the privacy
rights of U.S. persons.
Nonetheless, some of the more important provisions in the Act were
passed subject to a ``sunset'' provision. Sixteen provisions in the
Act--and the recently enacted ``lone wolf '' amendment to the Foreign
Intelligence Surveillance Act--will expire on December 31, 2005.
The danger posed by terrorism and other national security threats,
however, will not expire on that date.
Today, the Senate Select Committee on Intelligence continues its
on-going oversight of the USA PATRIOT Act. This open hearing will be
the first in a series of three hearings designed to educate Members and
the public as the Senate considers the repeal of the ``sunset''
provision and modifications to other intelligence authorities. On
Thursday, the Committee will hold a closed hearing on operational
matters relating to the Act. Next Wednesday, we will hear from the
Attorney General, Director of the Federal Bureau of Investigation, and
the Director of Central Intelligence.
This is not the Committee's first review of the USA PATRIOT Act or
the Foreign Intelligence Surveillance Act, also known as FISA. The
Committee regularly holds hearings, conducts briefings, and receives
information regarding the activities of the Intelligence Community. The
Committee conducted a closed hearing on the USA PATRIOT Act during the
last Congress. We receive detailed reports from the Department of
Justice every 6 months regarding FISA collection and annual reports on
the use of other surveillance tools.
The Committee is also in the final stages of completing its second
audit of the procedures, practices, and use of FISA. This
comprehensive, classified analysis will represent one of the most
thorough reviews of Executive branch activities under FISA since the
USA PATRIOT Act was enacted.
Today, we have invited a panel of outside experts to provide their
views of the USA PATRIOT Act and their opinions on those provisions of
the Act that will expire later this year.
Our witnesses are: Mr. Gregory T. Nojeim, Associate Director and
Chief Legislative Counsel for the American Civil Liberties Union; Mr.
Jim Dempsey, Executive Director of the Center for Democracy and
Technology; and Ms. Heather Mac Donald, a John M. Olin fellow at the
Manhattan Institute. The Committee thanks all of our witnesses for
being here today.
We have also received testimony and submissions for the record
from: The Honorable Bob Barr, former Congressman from Georgia; Former
Attorney General Edwin Meese III, and Paul Rosenszweig (RO-zen-swayg)
of the Heritage Foundation; Associate Professor Orin S. Kerr of the
George Washington University Law School; and Ms. Kate Martin, Director
of the Center for National Security Studies.
Without objection, the submissions from these commentators will be
entered into the record.
Before I recognize the Vice Chairman, I want to set out some
fundamental principles that will inform my consideration of the USA
PATRIOT Act reauthorization and any other modifications to law or
policy governing intelligence activities.
First, our intelligence agencies need flexible authorities to
confront terrorists, spies, proliferators, and other national security
threats.
Second, as we seek to protect national security, we must also
ensure that civil liberties and privacy are not sacrificed in the
process. This is not a zero-sum game, however. As former Supreme Court
Justice Arthur Goldberg noted, ``While the Constitution protects
against invasions of individual rights, it is not a suicide pact.''
Third, these are not matters of ``first impression.'' Interpreting
the Constitution and the President's responsibility to protect national
security, Federal courts have wrestled with many of these issues
before. They have recognized the authority of the President to conduct
warrantless electronic surveillance of foreign powers and their agents.
Well-established judicial precedents also make clear that certain
records--even of the most private information--lose their
Constitutional protection when voluntarily exposed publicly or to a
business or other third party.
Finally, I will support reasonable modifications to USA PATRIOT Act
provisions or other authorities that clarify legal uncertainties, but I
will oppose modifications that place unnecessary hurdles in the path of
lawful intelligence investigations.
I would like to note one particular example of an authority that
has been questioned by some in the context of the USA PATRIOT Act.
Everyday, we expose our personal information to businesses--when we
buy milk from the grocery store with a credit card; when we open an e-
mail account over the Internet; when we apply for a mortgage. This
information we have voluntarily exposed to others is no longer private.
Federal courts have clearly established that this record trail is not
``protected'' by the warrant requirement of the Fourth Amendment.
I have said before, that the 9/11 hijackers conducted numerous
transactions while living within the United States. It should not be
surprising that the records of these transactions would have been
useful to the Intelligence Community before the attacks. Records from
flight schools, cell phone companies, rental car dealers, or internet
service providers might have revealed crucial information about the
activities of these terrorists.
To gain access to these types of transactional records, the FBI
uses a FISA ``business records'' order. A FISA ``business records''
order allows the FBI to access records for investigations of
international terrorists and spies.
Before the USA PATRIOT Act, the authority to access ``business
records'' under FISA was limited to certain types of business--like
storage facilities, rental car companies, airlines, hotels, and the
like. Section 215 of the USA PATRIOT Act expanded the types of entities
that were subject to a FISA ``business records'' order and the types of
items that could be sought with such an order.
Armed with a FISA ``business records'' order, the FBI can now go to
a flight school to ask for records about a student they believe to be a
terrorist. They can ask an internet service provider for the subscriber
information of a possible spy. They can ask for transactional records
from a fertilizer company, a chemical company, and a car dealership if
those records will support an investigation to stop a car bomb attack
by al Qaeda.
Libraries, booksellers, and others have raised great concern about
this provision.
In law enforcement investigations, the government can obtain the
same types of records--from all types of businesses, including
libraries and bookstores--with a grand jury subpoena. These subpoenas
are issued without a court order and are subject to judicial review
only after they are issued.
A FISA ``business records'' order--on the other hand--can be issued
only upon the approval of a Federal Judge serving on the Foreign
Intelligence Surveillance Court. The judge can direct the FBI to modify
the scope of the order. No similar pre-issuance review exists in the
context of grand jury subpoenas.
Still, there is concern that the provision infringes privacy
interests.
A FISA ``business records'' order also CANNOT be sought if the
investigation is based solely on activities protected by the First
Amendment. This prohibition dovetails with existing restrictions in
Executive Order 12333 on the collection of foreign intelligence
concerning the domestic activities of U.S. persons.
Finally, I note that the FISA ``business records'' provision is a
relatively non-intrusive means of collecting intelligence for a
national security investigation. Analysis of these business records can
help solidify investigative leads or clear innocent names before more
intrusive FISA techniques such as electronic surveillance or physical
search are ever employed.
And, there are limitations in the USA PATRIOT Act, along with
requirements for judicial review, the Congressional reporting
obligations, and the prohibitions in Executive Order 12333.
While I recognize that some clarifying modifications to Section 215
may be necessary, I will oppose modifications that increase the
standard for an order above ``relevance'' or place unreasonable
barriers between these business records and intelligence officials.
Section 215 is just one example of the numerous tools that the USA
PATRIOT Act provided to the men and women protecting us from further
attack. These tools are currently helping our intelligence agencies
identify terrorists, track their movements, and disrupt their plots.
The provisions are subject to review by courts and the oversight of
Congress.
Those provisions of the USA PATRIOT Act subject to expiration at
the end of the year must be reauthorized. The alternative is a return
to failed, outdated, and illogical limits on national security
investigations that tied our hands prior to the 9/11 attacks. The
dangers are real, and we should give our people every Constitutional
tool available to fight and defeat terrorism.
I now recognize the Vice Chairman for any remarks he might wish to
make.
Chairman Roberts. We also received testimony and
submissions for the record from the Honorable Bob Barr, the
former Congressman from Georgia; former Attorney General Ed
Meese and Paul Rosenzweig of the Heritage Foundation; Associate
Professor Orin S. Kerr of the George Washington University Law
School; and Ms. Kate Martin, the Director of the Center for
National Security Studies.
Without objection, the submissions from these commentators
will be entered into the record.
[The prepared statements referred to follow:]
Prepared Statement of Bob Barr
Chairman Roberts, Ranking Member Rockefeller, distinguished members
of the Select Committee, I thank you for the invitation to present my
views in this written statement on the debate over the PATRIOT Act
``sunset'' provisions, and I applaud your oversight on this crucial
matter.
My name is Bob Barr. From 1995 to 2003, I had the honor to
represent Georgia's Seventh District in the U.S. House of
Representatives, serving that entire period on the House Judiciary
Committee. From 1986 to 1990, I served as the United States Attorney
for the Northern District of Georgia after being nominated by President
Ronald Reagan, and was thereafter the president of the Southeastern
Legal Foundation. For much of the 1970's, I was an official with the
CIA.
I currently serve as CEO and President of Liberty Strategies, LLC,
and Of Counsel with the Law Offices of Edwin Marger. I also hold the
21st Century Liberties Chair for Freedom and Privacy at the American
Conservative Union, consult on privacy issues with the American Civil
Liberties Union, and am a board member of the National Rifle
Association.
Finally, I am the Chairman of a new network of primarily
conservative organizations called Patriots to Restore Checks and
Balances, which includes the American Conservative Union, Eagle Forum,
Americans for Tax Reform, the American Civil Liberties Union, Gun
Owners of America, the Second Amendment Foundation, the Libertarian
Party, the Association of American Physicians and Surgeons, and the
Free Congress Foundation.
We strongly urge Congress to resist calls to summarily remove the
sunset provisions in the PATRIOT Act. This reflects our philosophy in
support of all necessary and constitutional powers with which to fight
acts of terrorism, but against the centralization of undue authority in
any one aim or agency of government.
As I have said many times before, I believe the current struggle to
properly integrate our shared constitutional heritage into our efforts
to provide for the common defense, is the defining debate of our time.
If we fail to strike the appropriate balance, we will do irreparable
harm to our most elemental principles as a nation.
To that end, I urge this Committee to carefully examine the current
language of the 2001 USA PATRIOT Act, and to make modest modifications
to a handful of its provisions. In particular, I strongly urge
individual members to co-sponsor Senator Larry Craig's Security and
Freedom Enhancement Act of 2005, known as the SAFE Act. Although in
many respects, this legislation does not address all of our concerns
with the USA PATRIOT Act, it is an essential first step.
Even though I voted for the USA PATRIOT Act in October 2001, as did
many of my colleagues, I did so with the understanding it was an
extraordinary measure for an extraordinary threat; that it would be
used exclusively, or at least primarily, in the context of important
antiterrorism cases; and that the Department of Justice would be
cautious in its implementation and forthcoming in providing information
on its use to the Congress and the American people.
I have become skeptical on all of these fronts.
First, the Justice Department has been quite frank in its use and
desire to use the USA PATRIOT Act in non-terrorism contexts. Second,
the administration has repeatedly stated its intention to expand the
USA PATRIOT Act, and has floated various pieces of legislation that
would do so.
And, third, although this Committee would be in the best position
to judge, the Justice Department has not produced any compelling
evidence that the USA PATRIOT Act has been essential in preventing al
Qaeda-style terrorist plots. Although I grant we have not suffered
another major terrorist attack since 9/11, as Homeland Security
Secretary Michael Chertoff put it, ``[i]t's like sprinkling powder to
keep away elephants. If no elephants show up, how do you prove it's
because of the powder, rather than because there were never any
elephants?'' \1\
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\1\ Stephen Brill, After: How America Confronted the September 12
Era 348 (2003).
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Before I specifically discuss those provisions of the USA PATRIOT
Act most pertinent to this Committee's jurisdiction, I would like to
bring two new developments in the ``sunsets'' debate to the Committee's
attention. Namely, we learned earlier this month that both the USA
PATRIOT Act appears to have been used in the Brandon Mayfield affair,
and that the Administration is increasingly turning to it for its
surveillance needs.
The Mayfield revelation is particularly disturbing. Mayfield--the
Oregon lawyer turned prime suspect in the Madrid bombing investigation
because of faulty fingerprint analysis at the FBI--was subjected to a
highly intrusive Federal investigation and then detained as a
``material witness'' for 2 weeks before finally being exonerated.
According to Attorney General Gonzales, the FBI used the USA
PATRIOT Act when it executed a covert search of Mayfield's home.
Specifically, the attorney general said that Section 207 was used to
extend the duration of Mayfield's surveillance, and that ``in some
sense'' Section 218, which made it easier to use intelligence
authorities in criminal contexts, was used.
We all fully understand the FBI is not perfect and generally
support the bureau even when it makes honest mistakes.
However, the Mayfield case shows how the USA PATRIOT Act, by
lessening meaningful judicial oversight, reduces the ability of the FBI
and Justice Department to avoid such mistakes. In particular, it shows
how--through the increased use of classified and less exacting foreign
intelligence surveillance authority in place of traditional criminal
warrants based on probable cause and executed in the open--the USA
PATRIOT Act can compound mistakes and amplify them into serious
deprivations of an innocent person's personal liberty.
In Mayfield's case, not only was a U.S. citizen detained, but his
home was subjected to a ``black bag'' intelligence search even though
the Justice Departillent was arguably conducting this search primarily
for criminal purposes; in other words, in order to apprehend a suspect
in a terrorist bombing that had already taken place. Such a foreign
intelligence search is even more intrusive than the criminal ``sneak
and peek'' search warrants available under section 213 of the USA
PATRIOT Act, because notice is not simply delayed, it is never
provided. The Washington Post reported that in a March 24th letter to
Mayfield, the Justice Department acknowledged that during a covert
search of his home, agents copied computer and paper files, took 355
digital photographs, seized six cigarette butts for DNA analysis, and
used cotton swabs to obtain other DNA evidence.
In short, the Mayfield case should serve as a cautionary tale of
how the USA PATRIOT Act can seriously exacerbate any ``broken
telephone'' effect in an ongoing investigation.
I would also say, especially to Senators Hatch and Feinstein, that
this is the type of problem that supporters of increased checks and
balances refer to when discussing so-called ``PATRIOT Act abuses.'' No
one is of the mind that the FBI would deliberately seek to infringe on
the rights of loyal, law-abiding Americans. But there need be no malice
aforethought for something to constitute an ``abuse.'' The fact is,
procedural deficiencies in the law's implementation likely led to
Mayfield's predicament, and Mayfield was an innocent man.
Put another way, sometimes the road to abuse is paved with good
intentions. Take, for instance, the Racketeer Influenced and Corrupt
Organizations, or RICO, Act, which was passed to provide tools to fight
organized crime, but was then used against pro-life groups. Overbroad
laws are necessarily subject to overbroad application, if not now, then
under future administrations, including those with less regard for
civil liberties. That in itself can be deemed ``abusive.''
The second consideration--that the USA PATRIOT Act is becoming an
ever more popular tool for the Justice Department--should be of
particular concern to limited government conservatives like myself. As
with taxes, unduly expanded government authority is next to impossible
to retract.
As an illustration, I would point the Committee to the Attorney
General's statement that, to date, Section 215 of the USA PATRIOT Act
has been used 35 times. Note, however, that former Attorney General
John Ashcroft declassified a memorandum to FBI Director Robert Mueller
in September 2003 saying that Section 215 had never been used, meaning
that those 35 court orders have all been issued in just the last year-
and-a-half.
Granted, three dozen court orders may be considered by some to be a
drop in the ocean of foreign intelligence document-production orders.
Clearly, however, the trend is toward increased, not decreased, use of
the USA PATRIOT Act; and, given the reach of the statute, the increased
enthusiasm for its use ought to sound alarms.
Similarly, on the eve of the recent, April 6th Senate Judiciary
Committee hearing, the Justice Department released statistics
disclosing the use to date of Section 213 of the PATRIOT Act--the so-
called ``sneak and peek'' provision that grants statutory authorization
for the indefinite delay of criminal search warrant notification.
Apparently, the department sought and received the authority to
delay notice 108 times between April 2003 and January 2005, a period of
approximately 22 months. By contrast, it sought and received this
authority 47 times between November 2001, when the PATRIOT Act was
enacted, and April 2003, a period of about 17 months. The 5-month
difference in timeframe aside, these numbers clearly reveal a
substantial increase in use.
Moreover, Senator Arlen Specter at the April 6th Judiciary
Committee hearing also revealed that 92--or approximately 60 percent--
of those 155 requests were granted under the broad justification that
notice would have the result of ``seriously jeopardizing an
investigation,'' rather than under the more specific criteria that
notice would endanger a person's life, imperil evidence, induce flight
from prosecution or lead to witness tampering.
While I understand the jurisdiction of this Committee is concerned
primarily with foreign intelligence authorities, not with criminal
``sneak and peek'' warrants, I respectfully submit that you should be
concerned when criminal investigative powers are made so broad that
they come to resemble powers associated with foreign intelligence
investigations. As Attorney General Gonzales informed Representative
Flake at an April 7th hearing of the House Judiciary Committee, six
criminal delayed-
notice warrants under section 213 of the PATRIOT Act were approved with
an indefinite delay (just as we had feared), and one had a delay that
lasted fully half a year.
Lengthy, secret surveillance, including secret ``black bag'' jobs
(all undertaken, since 1978, with the proper approval of the Foreign
Intelligence Surveillance Court, of course) have long been the hallmark
of a specialized, but crucial, type of investigation--the foreign
intelligence investigation of suspected spies and international
terrorists--the members of this Committee understand better than
anyone. When these intrusive powers, such as the power to enter a home
without notifying the owner, become more common in criminal or other
types of investigations, the American people become alarmed. The
resulting furor risks more draconian limits on all such secret
surveillance powers--even in the investigations where they may actually
be needed.
Although I acknowledge the Justice Departtnent's argument that
Section 213 and 215 searches and surveillance represent only a fraction
of the searches and surveillance conducted by the FBI and other
security agencies, I remain concerned. These are extraordinary
authorities and they are being used more frequently, and more and more
outside their proper context of foreign intelligence and terrorism
investigations. Any hint of such a trend should be very worrisome.
Furthermore, I would point the committee's attention to an April 1,
2005 Associated Press story on a recent report to Congress by the
Assistant Attorney General for Legislative Affairs, William E.
Moschella, disclosing the record number of Foreign Intelligence
Surveillance Act, or FISA, wiretaps in 2004. The department requested
and won approval of 1,754 FISA wiretaps in 2004, up from 1,724 in 2003.
Although the marginal increase between 2003 and 2004 is small, the
numbers still represent a 70 percent jump over the number obtained in
2000. In 2003, moreover, the use of intelligence wiretaps outstripped
that of normal criminal wiretaps for the first time in history. One can
only presume that the same trend continued in 2004.
The USA PATRIOT Act is directly relevant to the increased use of
these intelligence wiretaps, as a number of provisions in the law made
these wiretaps more intrusive and much easier to obtain outside of
terrorism or espionage investigations. Section 218, for instance, which
is set to sunset this year, now requires the investigation of foreign
intelligence or terrorism to be a ``significant purpose,'' rather than
the primary purpose, of the intelligence wiretap.
Bearing these two new developments--the Mayfield revelations and
the increased use of the PATRIOT Act--in mind, I urge the Intelligence
Committee to look at three provisions that are of particular importance
to your oversight mandate.
These are Sections 206, 215 and 505, which, respectively, created
``roving wiretap'' authority under FISA, expanded the government's
ability to seize personal records and other materials under foreign
intelligence authorities, and finally removed the required ``nexus'' to
foreign powers for the specific targets of FBI ``National Security
letter'' subpoenas.
First, when Congress created foreign intelligence roving wiretap
authority in the USA PATRIOT Act, it failed to include the checks
against abuse present in the analogous criminal statute. This is
troubling because, as roving wiretaps attach to the target of the
surveillance and not to the individual communications device, they
provide a far more extensive and intrusive record of a person's
communications.
Accordingly, criminal roving wiretaps require agents to
``ascertain'' that the target, rather than a third-party, is in fact
using the telephone before they begin recording. They also require
that, if the FBI does not actually know the identity (or an alias) of
the target, but knows that he or she will be using a particular phone,
the wiretap can attach to a single phone and all its users.
In creating roving wiretap authority under FISA, the USA PATRIOT
Act did away with this ascertainment requirement. Then, shortly
thereafter, the intelligence authorization bill for FY 2002 took away
the requirement that the applicant specify either the identity of the
target or the particular communications device.
The result, today, is a ``John Doe'' general warrant, issued
secretly under FISA, that permits electronic surveillance irrespective
of the communications device being tapped or the person being
eavesdropped on.
The Justice Department has defended the open-ended nature of these
``John Doe'' wiretaps, by pointing to the requirement that they provide
the FISA court with a physical description of the target if it cannot
identify the communications device or target. Critics question how much
of a safeguard this description requirement is in practice, given the
paucity of identifying information it requires. In recognition of the
oversight authority and security clearance of this Committee, I would
urge its members to inquire on this point at length.
In addition, I would urge the Committee to tighten the roving
wiretap authority to prevent anonymous or dragnet wiretapping, and to
use the internal safeguards in the criminal roving wiretap statute as a
model. At the very least, a judge authorizing a roving wiretap should
have some assurance that (a) an innocent bystander's sensitive
communications are protected, and (b) the court order is not an
effective general warrant to be filled in later.
To that end, Senator Craig's SAFE Act would restore the
ascertainment requirement and mandate that an FBI applicant for a
national security roving wiretap specify either the actual target (or
an alias) or the communications device to be tapped. This would, I
believe, reserve for the government power that is more than
sufficiently flexible to meet the demands of modern anti-terrorism and
other anti-criminal investigations, over and above that of pre-PATRIOT
Act authorities.
Next, I would urge the committee to carefully review the use and
utility of Section 215, the USA PATRIOT Act's amendment to what was
special authority under FISA to seize rental car, self-storage and
airline records for national security investigations.
Prior to the USA PATRIOT Act, the underlying statute applied to
only a limited subset of businesses, and it required a showing of
``specific and articulable facts'' that the target was an agent of a
foreign power. The 2001 Act removed both these limitations, thereby
greatly expanding the power of the government to reach to all
``tangible things'' (including books, records, papers, documents and
other items), and lowering the evidentiary standard below that of
standard, grand jury subpoenas which are pegged to at least some
showing of relevance to criminal action by a particular person in an
ongoing international terrorism or foreign intelligence investigation.
Some have questioned why the section 215 power has become known as
the ``library provision,'' when libraries were not mentioned and given
that it covers so much beyond library records or other information
maintained by libraries. The answer is simple. Prior to the USA PATRIOT
Act, library and bookseller records were not covered by this power,
which then only permitted an order for the records of certain business.
Now, library records are covered--as are all other records and tangible
items, including membership lists of political organizations, gun
purchase records, medical records, genetic information, and the list
goes on.
Section 215 also comes with a sweeping gag order, without any
explicit provision for a recipient to even consult with counsel; and if
certification is made that the records are sought for any intelligence
or terrorism inquiry, the judge has no power under the law to challenge
that certification. Finally, and crucially, this is not like a grand
jury subpoena, because a recipient has no explicit right to move to
have it quashed in court, and failure to comply with a 215 order is
presumably a serious offense.
Accordingly, critics of this section rightly charge that its open-
ended scope and lack of meaningful judicial review open the door to
abuses, and I agree. At the very least, Congress must restore the
particularity requirement for the target of a Section 215 order, and
should institute additional reporting requirements (subject, of course,
to appropriate classification measures). Here again, such a modest
limitation, consistent with traditional Fourth Amendment principles,
would pose no significant hardship to Federal agents. Federal judges
would, as they have for ages past, continue to approve virtually all
such applications properly supported and applied for by government
agents.
The SAFE Act, among other new procedural safeguards, would restore
the specific and articulable facts standard and provide a recipient
with at least some outlet to challenge an unreasonable order. It would
also require notice before any information seized pursuant to Section
215 of the USA PATRIOT Act is introduced as evidence in any subsequent
proceeding. These are ``burdens'' the government has always been able
to meet and which have never been seen as any real impediment to the
government's ability to secure necessary evidence.
I welcome the Attorney General's recent statements, agreeing to
some changes to Section 215 that would make explicit a recipient's
right to challenge the order and the secrecy provision, and would make
explicit a recipient's right to consult an attorney. The Attorney
General is certainly right to agree to changes in this poorly drafted
provision, but, unfortunately, it remains unclear that the
Administration will agree to a standard for a Section 215 order
(individual suspicion) that will truly protect privacy. I strongly urge
you to adopt the SAFE Act's standard in this regard.
Finally, I would urge the Committee to review Section 505 of the
USA PATRIOT Act, which removed the requirement that the FBI self-
certify that it has ``specific and articulable facts'' that the
individual target of an administrative subpoena or ``national security
letter'' (NSL), is an agent of a foreign power.
Prior to the USA PATRIOT Act, the FBI could use NSLs, which serve
as non-judicial subpoenas issued at the sole discretion of the FBI, to
demand business, Internet, credit and telephony records, among other
things. Before doing so, agents had to at least certify internally that
the NSL pertained to a particular individual, who was acting on behalf
of a foreign power.
The USA PATRIOT Act effectively allows the FBI to issue NSLs for
certain financial, transactional, electronic communications and credit
records without any individualized suspicion. It changed the standard
again to relevance to any investigation. The SAFE Act treats NSLs much
like it does Section 215 orders--it maintains the expansive scope of
the law, but includes the appropriate, minimal standard of individual
suspicion; provides an explicit right to challenge the order; and
retains the secrecy requirement, all of which take into account the
sensitivity of national security investigations without taking away any
necessary government powers.
In short, the SAFE Act simply modifies the powers expanded by the
USA PATRIOT Act, by making the government's exercise thereof subject to
the basic Fourth Amendment notion that before the government
``pierces'' an individual's right to privacy of information that can be
used as evidence against them, it must have a reasonable suspicion that
the person has either violated the law or is serving as an agent of a
foreign power. The government has not shown any reason why it cannot
meet such a nominal burden, and the Fourth Amendment requires it do so.
I believe, especially given that NSLs currently have no judge in
the picture at all, that the SAFE Act's approach is entirely
appropriate.
The committee should also note that Section 505(a) of the USA
PATRIOT Act has been at the center of an ongoing bit of confusion about
a 2004 court decision dealing with NSLs and whether that court decision
involved the 2001 Act or some other law. If I may, I would like to take
this opportunity to make sure the record is accurate.
In September 2004, Judge Victor Marrero of the United States
District Court for the Southern District of New York issued a 50-page
ruling in the case of Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
2004). In it, he struck down 18 U.S.C. Sec. 2709, the statute
permitting the issuance of NSLs for customer records from Internet,
telephone and other electronic service providers.
The judge struck the provision in its entirety, including the
amendments made by Section 505(a) of the PATRIOT Act. Accordingly, the
judge's decision struck down all of Section 505(a) of the PATRIOT Act,
but also struck down the rest of the NSL statute with it.\2\
---------------------------------------------------------------------------
\2\ Judge Marrero's decision did not affect the rest of Section
505, which amended a number of different statutes that permit the FBI
to issue NSLs for the production of other kinds of records.
---------------------------------------------------------------------------
The judge ruled on two primary grounds--that the Section 2709 NSL
is unreviewable, and that the attached gag order forever barred a
recipient from telling anyone anything about the NSL. As the judge
noted repeatedly in his opinion, the USA PATRIOT Act did remove the
requirement of individual suspicion from the statute. For instance, he
rests a large part of his First Amendment findings on the FBI's post-
PATRIOT Act ability to suppress anonymous speech using an NSL.
Judge Marrero proffers two hypotheticals on that score, neither of
which would have been possible prior to the USA PATRIOT Act unless the
FBI had specific facts that the individual target was an agent of a
foreign power. The FBI could use an NSL, the judge notes, to disclose
the identity of an anonymous ``blogger'' critical of the government, or
to discover the identity of everyone who has an e-mail account through
a political campaign.
A number of lawmakers and other interested parties continue to
claim, however, that Doe v. Ashcroft did not strike down a provision of
the USA PATRIOT Act because Section 2709, prior to the Act, did not
contain a right to challenge and contained a gag order. This is simply
not true. First, whenever a statute is struck down in its entirety any
then-operative amendments are also rendered unconstitutional. It is
hard to see how a decision that strikes down every word of one section
of a law can be said not to ``involve'' that law. Second, the USA
PATRIOT Act is the 800-pound gorilla in the Marrero opinion, and
clearly factored into his reasoning.
In sum, then, I urge the Committee to take into account the recent
developments in the USA PATRIOT Act debate, most notably the Mayfield
revelations and the indications that the Justice Department is turning
to the PATRIOT Act more and more.
I also respectfully ask that the Committee look closely at the
three most contentious PATRIOT Act amendments to foreign intelligence
law--Sections 206, 215 and 505--and urge individual members to co-
sponsor S. 737, the Security and Freedom Enhancement Act of 2005, which
already enjoys bipartisan support.
As evidenced by the circumstances surrounding the founding of this
very Committee, foreign intelligence law, especially as it applies
domestically, poses serious risks to basic constitutional freedoms.
While some hail the provisions in the USA PATRIOT Act as breaking down
an artificial ``wall'' or a ``technicality'' between the gathering and
use of evidence in criminal cases--matters necessarily subject to the
Bill of Rights--and the gathering of foreign intelligence--
appropriately not subject in its gathering to the limitations in the
Bill of Rights--the fact is the artificial ``wall'' that applied
different standards to the gathering and use of each category of
information, is neither artificial nor a technicality: it is the
Constitution of the United States of America. In treating them as one
and the same in the name of fighting ``terrorism'' or any other threat
posed to the good order and safety of our society, we show disdain for
the fundamental underpinning of our constitutional form of government
and the freedoms it enshrines.
Doing otherwise will result in an historical pattern where such
laws are made ever more secret, ever more unchecked and ever more
susceptible to abuse; and each subsequent national ``crisis'' forces
the shades drawn tighter. It is a slippery slope, down which this
Committee, this year in consideration of whether to sunset certain
provisions in the USA PATRIOT Act and in deciding whether to place very
modest and limited--but fundamentally important--restraints on some of
the law's provisions, can help avoid.
Thank you again for this opportunity to comment on the vitally
important deliberations of this Committee. I remain available to
provide whatever further information the Committee might request.
The Heritage Foundation,
Washington, DC, April 18, 2005.
Hon. Pat Roberts, Chairman,
Senate Select Committee on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.
Hon. John D. Rockefeller IV, Vice Chairman,
Senate Select Committee on on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.
Dear Chairman Roberts and Vice Chairman Rockefeller: We understand
that the Senate Select Committee on Intelligence will be conducting an
oversight hearing on April 19th concerning the reauthorization of
certain provisions of the Patriot Act. We write to provide you with our
views concerning that question.
In general, our view is that too much of the debate has focused on
the Act not as it truly is but as people perceive it to be. Most of the
proposals for reform mistake the appearance of potential problems and
abuse (the myth) with the reality of no abuse at all. To take but one
example, the Inspector General for the Department of Justice has
consistently reported that there have been no instances in which the
Patriot Act has been invoked to infringe on civil rights or civil
liberties. See Report to Congress on Implementation of Section 1001 of
the USA Patriot Act (March 2005); see also ``Report Finds No Abuses of
Patriot Act,'' Wa. Post at A2 (Jan. 28, 2004).
Thus, while we acknowledge that any expansion of governmental power
comes with the potential for abuse, that potential does not, in our
judgment warrant hesitancy absent some evidence of real abuse. In
short, the case for change has not been made.
The Heritage Foundation has conducted extensive research on the
Patriot Act that provides greater detail on this subject. All of our
research is summarized
in a memorandum we published entitled ``The Patriot Act and Related
Provisions: The Heritage Foundation's Research'' (http://
www.heritage.org/Research/HomelandDefense/wm612.cfm).
Most saliently for the Committee's consideration we would
respectfully call your attention to two separate publications that
contain much of our substantive analysis (copies of which we enclose
with this letter):
Rosenzweig, Carafano & Kochems, eds. ``The Patriot Act
Reader,'' (also available at http://www.heritage.org/Research/
HomelandDefense/The-Patriot-Act-Reader.
cfm)
Meese & Rosenzweig, ``The SAFE Act Will Not Make Us
Safer,'' (also avail-
able at http://www.heritage.org/Research/HomelandDefense/lm10.cfm)
We would ask that you make this letter and our publications a part
of the record of the Committee's hearing. We thank you for the
opportunity to share with you our views.
Sincerely yours,
Edwin Meese III,
Ronald Reagan Distinguished Fellow.
Paul Rosenzweig,
Senior Legal Research Fellow.
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Prepared Statement of Orin S. Kerr
Mr Chairman, Members of the Committee:
My name is Orin Kerr, and I am an Associate Professor at George
Washington University Law School. It is my pleasure to submit this
written testimony concerning the USA Patriot Act. My testimony will
contain three parts: first, a brief explanation of my view that the
public debate over the Patriot Act largely has misunderstood the Act;
second, an overview of the legal issues raised by foreign intelligence
surveillance; and third, an analysis of the constitutional issues
raised by orders to compel information such as library records,
bookstore records, and Internet communications.
I. THE DEBATE OVER THE USA PATRIOT ACT
The public debate over the USA Patriot Act has been based on a
number of major misunderstandings about the scope and effect of the
law. Millions of Americans believe that the Patriot Act profoundly
reshaped the balance between privacy and security in a post-9/11 world.
That is simply wrong. The truth is that the law is much more modest:
Most of the Patriot Act consists of minor adjustments to a set of
preexisting laws, such as the Foreign Intelligence Surveillance Act and
the Electronic Communications Privacy Act. The Patriot Act left the
basic framework of preexisting law intact, offering mostly minor
changes to the set of statutory privacy laws Congress first enacted in
the 1970's and 1980's. I explained this in greater depth in a law
review article published in January 2003, and stand by that view today.
See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act:
The Big Brother That Isn't, 97 Northwestern University Law Review 607
(2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract--
id=317501.
Fortunately, the gap between the perception and the reality of the
Patriot Act is beginning to narrow. In recent months, critics of the
Patriot Act have come to acknowledge that most of the Act is consensus
legislation that does not raise civil liberties concerns. For example,
in an April 5, 2005 press release the American Civil Liberties Union
acknowledged that:
Most of the voluminous Patriot Act is actually unobjectionable
from a civil liberties point of view and . . . the law makes
important changes that give law enforcement agents the tools
they need to protect against terrorist attacks. A few
provisions . . . must be revised. . . .
See Bipartisan Legislation Would Fix Worst Parts of Patriot Act
While Maintaining Key Law Enforcement Powers, available at http://
www.aclu.org/SafeandFree/SafeandFree.cfm? ID=17935&c=206.
Although it is unfortunate that this acknowledgment appeared as
late as it did, the ACLU's recognition that the Patriot Act debate is
actually quite narrow is an important step to understanding Patriot Act
reform. It reveals that the differences among pre-Patriot Act law, the
law under the Patriot Act, and proposals to reform the Patriot Act tend
to be relatively small. Of course, any legislative proposals that
impact government power to conduct criminal or intelligence
surveillance must be treated with the greatest consideration and care.
Finding the right balance that both gives the government the power it
needs to investigate terrorist threats and preserves our precious civil
liberties is a very difficult task. At the same time, the effect of the
Patriot Act and the scope of proposed amendments to it are much
narrower than press accounts would lead one to believe.
II. OVERVIEW OF THE ISSUES RAISED BY THE USA PATRIOT ACT AND FOREIGN
INTELLIGENCE SURVEILLANCE
I will now turn to an overview of the issues raised by the law of
intelligence surveillance to help put the debate in better perspective.
At the most basic level, any modern legal regime that allows the
government to investigate crime or terrorism must address a number of
basic methods for acquiring information. In particular, the law must
cover three basic types of authorities:
(1) Authority to conduct physical searches to retrieve physical
evidence or collect information.
(2) Authority to compel third parties to produce physical evidence
or disclose information.
(3) Authority to conduct real-time monitoring over communications
networks.
In the case of criminal investigations, the legal regime that
covers these authorities is well- established. The first authority is
governed by the traditional Fourth Amendment warrant requirement. The
police must have a search warrant based on probable cause to enter a
home or business unless a person with apparent or actual authority over
the place consents, exigent circumstances exist, or another exception
to the warrant requirement applies. The second authority is governed by
the Fourth Amendment rules governing subpoenas. Although many different
types of subpoenas exist, and the rules can vary slightly depending on
the type of subpoena, the general rule is that the police can compel
third parties to disclose information in their possession using a
subpoena. A subpoena can be issued under a wide range of circumstances:
the information need only be relevant to the government's
investigation, and compliance with the subpoena cannot be overly
burdensome to the subpoena recipient. Finally, the third authority is
regulated primarily by statutory law. Two different laws apply: the
interception of contents such as phone calls and
e-mails is regulated by the Wiretap Act, 18 U.S.C. Sec. Sec. 2510-22,
and the collection of non-content information such as phone numbers
dialed and e-mail addresses is governed by the Pen Register statute, 18
U.S.C. Sec. Sec. 3121-27. The former requires the law enforcement to
obtain a ``super warrant'' based on probable cause unless an exception
applies, while the latter permits law enforcement monitoring of non-
content information under a relevance court order something like a
subpoena.
The law governing monitoring for intelligence purposes is somewhat
different than the law governing evidence collection for criminal
cases. The Fourth Amendment's requirements are much less clear--and
generally less strong--than in the routine criminal context. As a
general matter, the few courts that have confronted how the Fourth
Amendment applies to intelligence collection have held that the rules
are somewhat similar to the rules for criminal investigations but also
more flexible. When the Fourth Amendment applies, information and
evidence collection must be reasonable in light of the countervailing
demands and interest of intelligence collection. See United States v.
United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed
Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This
legal framework appears to place Congress in the primary role of
generating the law governing intelligence collection, with the Fourth
Amendment serving as a backstop that reviews Congress's approach to
ensure that it is constitutionally reasonable.
Congress has responded to the challenge by passing the Foreign
Intelligence Surveillance Act, also known as ``FISA.'' FISA attempts to
create a statutory regime for intelligence monitoring that largely
parallels analogous rules for gathering evidence in criminal cases.
FISA covers the three basic authorities as follows: First, 18 U.S.C.
Sec. Sec. 1821-29 covers the authority to conduct physical searches, a
parallel to the provision of the Federal Rules of Criminal Procedure
that allows investigators to obtain a search warrant in criminal cases.
Second, 18 U.S.C. Sec. Sec. 1861-62 and 18 U.S.C. Sec. 2709 covers
authority to compel third-parties to disclose records and physical
evidence, a parallel to the provision of the Federal Rules of Criminal
Procedure that allows the issuance of subpoenas in criminal
investigations. Third, 18 U.S.C. Sec. Sec. 1801-22 and 18 U.S.C.
Sec. Sec. 1841-45 cover the authority to conduct real-time monitoring
over communications networks. Specifically, Sec. Sec. 1801-22 cover the
authority to obtain the contents of communications, a parallel to the
Wiretap Act used in criminal cases, and Sec. Sec. 1841-45 cover the
authority to obtain non-content information, a parallel to the Pen
Register Statute used in crime investigations.
The debates over the FISA-related provisions of the Patriot Act
focus primarily on the second type of authority: powers to compel third
parties to produce physical evidence or disclose information.
Specifically, critics object to the weak privacy regulations found in
provisions such as Section 215 of the Patriot Act that address the
government's power to compel third parties to produce physical evidence
or disclose information in intelligence cases. For the most part, these
weak privacy regulations match the standards applied in the analogous
criminal context. For example, the Supreme Court has held that a grand
jury subpoena can be issued if the order to compel seeks information
that may be relevant to a criminal investigation. See United States v.
R. Enterprises, Inc., 498 U.S. 292 (1991). This authority ``paints with
a broad brush'' by design, permitting subpoenas to be issued ordering
third parties to disclose physical evidence and information ``merely on
suspicion that the law is being violated, or even just because . . .
assurance [is sought] that it is not.'' Id. at 297 (quoting United
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Supreme
Court has justified this low standard on the ground that orders to
compel evidence from third parties are preliminary investigative tools
designed to determine if more invasive forms of surveillance are
necessary. ``[T]he Government cannot be required to justify the
issuance of a grand jury subpoena by presenting evidence sufficient to
establish probable cause because the very purpose of requesting the
information is to ascertain whether probable cause exists.'' See R.
Enterprises, Inc., 498 U.S. at 297.
The key question that the Committee must consider is whether a
higher standard is appropriate for orders to compel in the context of
intelligence investigations. The environment of intelligence
investigations is somewhat different than the environment of criminal
investigations. For example, subpoenas can be easily challenged and can
be complied with under few time pressures, both of which are important
explanations for the light legal regulations of subpoenas. See United
States v. Dionisio, 410 U.S. 1, 10 (1973). At the same time, the harm
that intelligence investigations seek to avoid is on average greater
than the harm a typical criminal investigation seeks to deter. In
addition, it is worth noting that Congress has opted to provide special
privacy protections to protect some types of Internet communications
and stored e-mails, raising the privacy protection beyond that provided
by subpoenas. See 18 U.S.C. Sec. 2703. Perhaps Congress should consider
a similar approach in the intelligence context, permitting subpoena-
equivalents to be used in some contexts but higher-threshold court
orders to be used in other contexts that raise more substantial privacy
concerns.
III. CONSTITUTIONALITY OF ORDERS TO COMPEL LIBRARY RECORDS AND INTERNET
COMMUNICATIONS
The statutory regulation of orders to compel evidence from third
parties is particularly important because the Fourth Amendment offers
little in the way of regulation of such orders. In this final section,
I wish to explain the constitutionality of orders to compel,
specifically in the context of library records and Internet
communications obtained from third party providers. My conclusion is
that orders to compel the disclosure of evidence from third parties
ordinarily do not require probable cause. Under current law, for
example, probable cause is not required to compel libraries to compel
library records.
The constitutionality of orders to compel evidence without probable
cause can be justified on two alternative grounds. The first is that
the disclosure of information to third parties has been held to
eliminate Fourth Amendment protection in that information. As the
Supreme Court stated in United States v. Miller, 425 U.S. 435, 443
(1976):
This Court has held repeatedly that the Fourth Amendment does
not prohibit the obtaining of information revealed to a third
party and conveyed by him to Government authorities, even if
the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in
the third party will not be betrayed.
Under the disclosure rationale of Miller, third parties normally
can be ordered to disclose records held by them without implicating the
Fourth Amendment on the theory that the information was disclosed to
them in the course of their coming into possession of the information.
Applying this rationale, courts have uniformly held that an
individual does not retain Fourth Amendment rights in non-content
records that reveal how that individual used an account or service
provided by a third party. A person may reasonably believe that the
third party will not disclose the information to the police, but this
alone does not create a Fourth Amendment ``legitimate'' or
``reasonable'' expectation of privacy in the information. For example,
a person does not retain a reasonable expectation of privacy in the
information the telephone company retains about how a particular
telephone account was used. See United States v. Fregoso, 60 F.3d 1314,
1321 (8th Cir. 1995). Similarly, a customer does not retain a
reasonable expectation of privacy in the information that Western Union
retains about how a particular Western Union account was used. See In
re Grand Jury Proceedings, 827 F.2d 301, 302-03 (8th Cir. 1987).
The rationale also applies to library records. For example, in
Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), a library challenged a
subpoena obtained by a State investigator who wanted to gather library
circulation records to see if anyone had checked out books relating to
cattle mutilation. The Iowa Supreme Court rejected the argument that an
ordinary subpoena could not be used to collect library records:
It is true the State's investigation was only preliminary;
and as Brown and the library board argue, no suspects were
identified nor was the search for information limited to any
named library patrons. This does not diminish the need for the
information, however, as we assume the whole purpose in
examining the record was to gain enough information so that the
investigation could be narrowed.
The State's interest in well-founded criminal charges and the
fair administration of criminal justice must be held to
override the claim of privilege here. Brown and the library
board have cited no cases to us which have reached a contrary
conclusion under similar facts, and we have found none. Id. at
513.
Although I have been unable to find any cases applying the Fourth
Amendment to bookstore records, the same analysis would seem to apply
to sales records kept by bookstores. To be sure, some State courts have
interpreted their own State constitutional provisions to create greater
privacy protections to regulate State police officers in the context of
bookstores. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44
P.3d 1044 (Colo. 2002). But as far as I am aware, no court has held
that a person retains a reasonable expectation of privacy in their
bookstore customer records under the Fourth Amendment. As a general
matter, the Fourth Amendment rules that apply to bookstores are the
same as the Fourth Amendment rules that apply to other spaces. See,
e.g., Maryland v. Macon, 472 U.S. 463 (1985).
Finally, the same rationale applies to non-content Internet account
records. Non-content Internet account records are disclosed to the ISP,
and are not protected under the Fourth Amendment. See United States v.
Hambrick, 55 F. Supp. 2d 504, 508 (W.D. Va. 1999), aff 'd, 225 F.3d 656
(4th Cir. 2000) (unpublished opinion); United States v. Kennedy, 81 F.
Supp. 2d 1103, 1110) (D. Kan. 2000) (same).
This does not mean an individual can never have a reasonable
expectation of privacy in information held by third parties. Existing
caselaw focuses on whether the information transferred to the third-
party is disclosed to the third party or is sealed away from them. If a
person gives third party a sealed container to hold on their behalf,
then that person retains a reasonable expectation of privacy in the
unexposed contents of that sealed container. See, e.g., United States
v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989); United States v. Barry,
853 F.2d 1479, 1481-83 (8th Cir. 1988). For that reason, a person
retains a reasonable expectation of privacy in the contents of sealed
postal letters or packages sent via UPS or FedEx until the point that
the letters and packages arrive at their destination. See Ex Parte
Jackson, 96 U.S. (6 Otto) 727, 733 (1877); Walter v. United States, 447
U.S. 649, 651 (1980).
It is unclear under current law how the sealed/unsealed distinction
applies to disclosed information such as Internet communications,
particularly in the context of the contents of Internet communications.
Courts may conclude that by sending an e-mail, the user discloses that
e-mail to an ISP under Miller. On the other hand, courts may conclude
that the contents of e-mail can be analogized to the contents of a
sealed letter, and thus retain Fourth Amendment protection. At the
current time, all we know is that the Fourth Amendment does not protect
non-content information held by ISPs, and may or may not protect
content information held by ISPs. Notably, this uncertainty is part of
what led Congress to impose greater statutory protections in the case
of e-mail contents sought in criminal investigations under 18 U.S.C.
Sec. 2703(a).
Finally, existing cases suggest that a subpoena or equivalent order
to compel without probable cause may be constitutionally sufficient
even if a suspect retains a reasonable expectation of privacy in the
information. The case here are sparse, as the courts have decided few
cases in which the government ordered a third party to disclose sealed
packages. But the few cases on this question suggest that the
government can subpoena information even if that information is
protected by a reasonable expectation of privacy; no probable cause
warrant is required. See United States v. Barr, 605 F. Supp. 114, 119
(S.D.N.Y. 1985) (permitting subpoena served on third-party mail service
for undelivered mail); United States v. Schwimmer, 232 F.2d 855, 861-63
(8th Cir. 1956) (permitting subpoena served on third-party storage
facility for private papers in facility's possession); Newfield v.
Ryan, 91 F.2d 700, 702-05 (5th Cir. 1937) (permitting subpoena served
on telegraph company for copies of defendants' telegrams).
In light of these cases, current law points to the use of orders to
compel evidence as being constitutional in the Fourth Amendment in most
if not all cases without a requirement of probable case. The most
difficult and least clear cases are orders to compel content records,
such as the contents of e-mails and sealed letters. In most
circumstances, however--and clearly in the case of non-content records
such as library records--orders to compel evidence do not require
probable cause under the Fourth Amendment.
__________
Prepared Statement of Kate Martin, Director, Center for
National Security Studies
While effective counterterrorism and counterintelligence require
that agencies share relevant information, sections 203 and 905 of the
USA Patriot Act fail to address the real difficulties in such sharing:
How to determine what information is useful for counterterrorism and
counterintelligence; how to determine what information would be useful
if shared; how to identify whom it would be useful to share it with;
and how to ensure that useful and relevant information is timely
recognized and acted upon. To the contrary, the approach of the Patriot
Act--which can fairly be summarized as share everything with everyone--
can be counted on to obscure and make more difficult the real challenge
of information sharing.
Widespread and indiscriminate warehousing of information about
individuals violates basic privacy principles. Amending the Patriot Act
to require targeted rather than indiscriminate information sharing
would restore at least minimal privacy protections and substantially
increase the likelihood that the government could identify and obtain
the specific information needed to prevent terrorist acts.
Section 203 of the USA Patriot Act allows unrestricted sharing of
sensitive information gathered by law enforcement agencies with the
CIA, the NSA, immigration authorities, the Secret Service, and White
House officials. Such sharing is not limited to officials with
responsibility for terrorism matters, nor are there any safeguards
regarding the subsequent use or dissemination of such information by
such officials (so long as the use is within the official duties of the
recipient). Section 203 allows the sharing of all information that is
in any way related to any American's contacts with or activities
involving any foreign government, group, or individual. (Section 203
allows the sharing of ``foreign intelligence information,'' ``foreign
intelligence'' and ``counterintelligence.'' The definition of ``foreign
intelligence information'' included in section 203 is tied to threats
and potential threats of terrorism, sabotage and clandestine
intelligence-gathering, the national defense and foreign affairs,
Sec. 203(a)(1)(iv), 203(b)(2)(C), and 203(d)(2). However, the
definitions of ``foreign intelligence'' and ``counterintelligence'' are
not even that limited.) Section 203 applies to all intercepts of
telephone conversations. It applies to all confidential information
obtained by a grand jury, which has the power to subpoena virtually any
records or testimony from any person merely at the request of a
prosecutor.
Section 905 overlaps with section 203, but makes such sharing
mandatory. It requires the Attorney General and the head of any other
law enforcement agency to ``expeditiously disclose'' to the Director of
Central Intelligence (and now the new Director of National
Intelligence) all ``foreign intelligence'' acquired during a law
enforcement investigation. The Attorney General may exempt only those
classes of foreign intelligence whose disclosure ``would jeopardize an
ongoing law enforcement investigation or impair other significant law
enforcement interests.'' Section 905 suffers from the same defects as
section 203: it covers the most sensitive grand jury information and
wiretap intercepts regardless of relevance, and contains no limits on
the use or redisclosure of the information by intelligence agency
staff. ``Foreign intelligence'' includes anything related to any
American's contacts with a foreign government, group or person.
The Act sets no standards or safeguards for use of this
information. While it requires the Attorney General to issue rules,
those rules simply require that information concerning citizens and
legal permanent residents be marked as such. Existing intelligence
agency protocols are so broad as to allow intelligence agencies to keep
all information obtained under section 203 or 905. See EO 12333 section
2.3.
Two and a half years after the passage of the Patriot Act, the 9/11
Commission staff confirmed that ``there is no national strategy for
sharing information to counter terrorism.'' The Department of Justice
has yet to explain how these Patriot Act provisions will focus the
bureaucracies on identifying what information is useful to locate
actual terrorists, analyzing that information, and determining what
actions to take based on the information. To the contrary, the
provisions essentially direct agencies simply to dump massive volumes
of unanalyzed information on other agencies. They facilitate the
construction of a vast intelligence data base on Americans. And they
effect an extraordinary change in the capability and authority of the
foreign intelligence agencies, including the CIA, to keep information
on Americans.
Congress should amend both sections 203 and 905 to provide some
simple privacy safeguards, which will also ensure that information
sharing is done in a more effective way.
Current law offers no protections against abuse. Too much
information may be turned over to the CIA and others, including
virtually all information about any American's contacts with any
foreigner or foreign group, including humanitarian organizations, for
example. Existing rules provide virtually no protection against
authorized government compilation of dossiers on millions of Americans
and use of those dossiers in intelligence operations.
Congress could provide some modest protections. The amendments
proposed below--limiting shared information to information relating to
terrorism or counterintelligence, limiting its dissemination to
officials working on those matters, requiring judicial approval, and
requiring marking to prevent redissemination--would not interfere with
the needs of counterterrorism or counterintelligence.
While the Justice Department claims that any modifications to the
information-sharing provisions would mean that agencies ``would be
required to identify proper legal authority prior to sharing or
disseminating information outside of the collecting agency or
community,'' such objection misses the point. See Justice Department,
USA Patriot Act: Sunsets Report, April 2005. The proposed amendments
would not change the legal authorities for sharing information, they
would simply help ensure that information is actually analyzed and
determined to be useful to counterterrorism and counterintelligence.
None of the uses of information outlined by the Justice Depaitinent in
its Patriot Act report would be prohibited because all of them relate
to terrorism.
But Congress should act to ensure that those agencies which first
obtain information and are best positioned to understand its context do
the work necessary to determine whether the information may be useful
or relevant to other agencies. When in doubt, they should of course err
on the side of transferring the information, but they should exercise
some judgment in doing so. Ideally, they should describe the potential
usefulness of the information when distributing it to other agencies.
We note that intelligence officials are already reporting that under
the current regime there is too much indiscriminate sharing of useless
information.
Specifically Congress should consider the following modifications.
1. When information is gathered pursuant to judicial power, the
court's approval should be required before transferring the information
to intelligence agencies, White House personnel, or other law
enforcement agencies in order to ensure that there is some real need
for more widely distributing the information. Accordingly, court
approval for sharing criminal wiretap intercepts of conversations and
e-mail and secret grand jury information should be obtained, except
when there is no time to obtain such approval in order to prevent an
imminent terrorist act or the flight of a suspect.
2. The information that should be shared with the intelligence
agencies, the White House, etc., should be limited to information
relevant to terrorism or counterintelligence, rather than all
information concerning any foreign contacts, the vast majority of which
have nothing to do with terrorism. If the information transferred by
law enforcement to the intelligence community were limited to ``foreign
intelligence information'' as that term is defined in the Foreign
Intelligence Surveillance Act, it would offer some protection against
the CIA and others constructing a data base on the domestic activities
of Americans. This safeguard was included in the Patriot Act, H.R. 2975
(107 Cong.), as approved by the House Committee on the Judiciary in
October 2001.\1\
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\1\ See, H.R. REP. No. 236, 107th Cong., 1st Sess., pt. 1(2001), at
8, available at http://judiciary.house.gov/legacy/107-236p1.pdf.
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3. The information should be shared only with those officials who
are directly involved in terrorism or counterintelligence.
4. There should be procedures for marking and safeguarding the
shared information so these limits can be enforced and to protect
against the redissemination of the information beyond these limits,
much as classified information is marked and stored. Confidential grand
jury information should be marked as such and intercepts of Americans'
conversations and e-mails should be marked to prohibit indiscriminate
circulation.
CONCLUSION
One of the most basic protections against government abuses has
been the principle that a government agency should only collect
information about individuals that it needs for a specific and
articulated purpose, should use it only for the purposes for which it
was collected, should not keep it any longer than necessary, and should
not share it with other government agencies except for very good
reasons. The Patriot Act violates that principle by adopting the
approach that myriad government agencies should collect, share and
maintain forever as much information on as many people as possible.
Requiring the minimal protection that the government articulate why
specific information could be useful for counterterrorism or
counterintelligence before widely distributing it would help keep the
government focused on the information needed to locate the next
attackers, instead of ware-
housing personal information about millions of Americans.
Chairman Roberts. I now recognize the distinguished Vice
Chairman.
Vice Chairman Rockefeller. Thank you, Mr. Chairman. I will
follow the same procedure you have. I think it's a wise one.
I'm ready to hear the witnesses.
[The prepared statement of Vice Chairman Rockefeller
follows:]
Prepared Statement of Hon. John D. Rockefeller III, Vice Chairman
This week and next the Committee will hold two open hearings on the
Patriot Act.
The Patriot Act, which was enacted soon after the attacks of
September 11, 2001, contains 10 titles. Nine of those titles are
permanent law.
One title of the Patriot Act--Title II on Enhanced Surveillance
Procedures--has 16 provisions that will cease to have effect, or
sunset, on December 31, 2005. In addition, the recently enacted
Intelligence Reform Act authorizes the use of the Foreign Intelligence
Surveillance Act in the case of so-called ``lone wolf '' terrorists.
That new authority is also subject to sunset at the end of this year.
Congress should resolve two questions this year: first, on the
basis of experience or further reflection since September 11, 2001,
should any of the expiring authorities be amended; and second, as
originally enacted or as amended, should they be made permanent?
The process of evaluation of the expiring provisions is under way.
In response to a request from Senator Feinstein, the Department of
Justice has submitted to Congress a lengthy ``Sunsets Report'' which
sets forth a case for each of the 16 provisions of the Patriot Act that
will sunset at the end of this year.
The Judiciary Committee has begun a series of Patriot Act hearings.
It heard 2 weeks ago from the Attorney General and the FBI Director,
something our Committee will do next week on April 27th. We have been
informed that the Judiciary Committee plans to hold an additional
hearing in May.
Members of the Senate have introduced bills that propose amendments
to expiring Patriot Act provisions. There are also proposals to amend
other provisions of the Act. On our Committee, Senator Corzine has
joined a bipartisan group of 11 Members in cosponsoring S. 737, the
``Security and Freedom Enhancement Act,'' a bill introduced by Senator
Craig to amend several authorities in the Patriot Act. Senators Wyden
and Corzine are cosponsors of S. 317, the ``Library, Bookseller, and
Personal Records Privacy Act.''
In short, Congress has begun a serious effort to examine the
expiring provisions of the Patriot Act. There were good reasons to act
quickly after the September 11 attacks. Because of the need for speed
then, it was wise to require, through a sunset provision, that there be
a further evaluation of portions of the Act after several years of
experience.
We now have an opportunity to assess carefully what surveillance
and search powers are needed in gathering intelligence about terrorism
and other threats. I look forward to hearing testimony and working with
colleagues on our Committee and on the Judiciary Committee. Our goal,
of course, should be to ensure that there is a sound, long-term basis
for the effective gathering of intelligence in a manner consistent with
our Constitution and values.
Our panel today will assist us in beginning that effort. The
members of the panel--Jim Dempsey of the Center for Democracy and
Technology, Heather Mac Donald of the Manhattan Institute for Policy
Research, and Gregory Nojeim of the ACLU are all distinguished
participants in the public debate about the Patriot Act. I look forward
to their testimony today and to next week's testimony from the
Administration.
In addition, the Committee has received four statements for the
record: (1) from former Attorney General Edwin Meese and Paul
Rosenzweig of the Heritage Foundation; (2) from former Congressman Bob
Barr, chairman of a recently created coalition named Patriots to
Restore Checks and Balances; (3) from Kate Martin, Director of the
Center for National Security Studies; and (4) Orin Kerr, Associate
Professor of Law at the George Washington University Law School.
I am pleased that the Chairman has asked for and obtained unanimous
consent to place these additional statements on our record of this
hearing. The statements will make an important contribution to the
Committee's understanding of the issues before us. I thank the authors
of each and the witnesses who are here today for their assistance to
the Committee.
Chairman Roberts. We will go in the order of introduction.
Mr. Nojeim, would you like to open up, please?
[The prepared statement of Mr. Nojeim follows:]
Prepared Statement of Gregory T. Nojeim
Chairman Roberts, Vice Chairman Rockefeller and Members of the
Committee:
I am pleased to appear before you today on behalf of the American
Civil Liberties Union and its more than 400,000 members, dedicated to
preserving the principles of the Constitution and Bill of Rights at
this rare, and crucial, public oversight hearing on USA PATRIOT Act of
2001.\1\
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\1\ Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
---------------------------------------------------------------------------
The Patriot Act was passed by Congress in 2001 just 6 weeks after
the terrorist attacks of September 11. Although the act passed by wide
margins, members on both sides of the aisle expressed reservations
about its impact on fundamental freedoms and civil liberties. As a
result, Congress included a ``sunset clause'' providing that over a
dozen provisions will expire on December 31, 2005, if Congress does not
act to renew them.
A number of the provisions that will expire are within the
jurisdiction of this committee, including some of the most
controversial provisions. This statement's main focus is on those
Patriot Act intelligence provisions that pose the greatest risk for
civil liberties.\2\
---------------------------------------------------------------------------
\2\ This statement is adapted from a longer memorandum that
examines a number of other Patriot Act and related issues in greater
depth, including immigration, material witness and ``enemy combatant''
detentions, criminal ``sneak and peek'' search warrants, the crime of
material support of terrorism and the definition of domestic terrorism.
See Memo to Interested Persons Outlining What Congress Should Do About
the Patriot Act Sunsets, March 28, 2005, available at: http://
www.aclu.org/news/NewsPrint.cfm?ID=17846&c=206.
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Congress should use the upcoming debate over the renewal of parts
of the Patriot Act as an opportunity to reassert its rightful role in
determining law enforcement and national security policy in the post-9/
11 context, which has waned as the power of the executive branch has
waxed. Before re-authorizing any intelligence power, this committee
should require the executive branch to meet the standard articulated by
the bipartisan 9-11 Commission.
First, Congress should re-examine the specific provisions
that sunset, taking care not to renew any provision unless the
government can show ``(a) that the power actually materially enhances
security and (b) that there is adequate supervision of the executive's
use of the powers to ensure protection of civil liberties.'' \3\
---------------------------------------------------------------------------
\3\ Final Report of the National Commission on Terrorist Attacks
Upon the United States (``The 9/11 Commission Report'') 294-95 (2004)
(boldfaced recommendation)
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Second, ``[i]f the power is granted, there must be
adequate guidelines and oversight to properly confine its use.'' \4\
---------------------------------------------------------------------------
\4\ Id.
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Third, because the issues of national security and civil
liberties posed by anti-terrorism powers that are not part of the
Patriot Act sunset are at least as serious as any posed by those
provisions that do sunset, Congress should undertake a broader review
of anti-terrorism powers, both within and outside of the Patriot Act,
using the same standard of review.
Finally, Congress should resist efforts by the executive
branch to evade searching review of its existing powers, both under the
Patriot Act and under other legal authorities, by shifting the debate
to new anti-terrorism legislation, such as proposals for administrative
subpoenas or new death penalties.
Congress may not be able to fully review or assess the
effectiveness, and impact on civil liberties, of some anti-terrorism
powers that the executive branch was granted in the Patriot Act. The
lack of meaningful information about the use of many powers is
sometimes a direct result of excessive secrecy in the executive branch,
and sometimes the result of necessary secrecy. In any case where
sufficient information is not available to undertake a thorough review,
Congress should set a new sunset date and impose additional reporting
requirements to facilitate a proper review, rather than cede those
powers permanently to the executive branch.
Because many domestic intelligence authorities operate in complete
secrecy, this committee plays a particularly critical role in
determining whether specific intelligence powers ``actually materially
enhance security.'' Only an intensive and painstaking process of
examining the facts regarding the use of these powers can answer that
question.
This committee was created in large part to perform just that
function. It should not be content with general statements of the
Patriot Act's usefulness or selective accounts of how certain sections
have been used. Rather, we hope it will aggressively and thoroughly
examine whether administration claims that certain powers are vital to
the prevention of terrorism are born out by specific facts.
Until now, the government has fallen short. Just last week,
Judiciary Chairman Arlen Specter expressed frustration at the Justice
Department's inability to provide such facts even in a classified
setting. ``This closed-door briefing was for specifics,'' Senator
Specter explained. ``They didn't have specifics.'' \5\
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\5\ Eric Lichtblau, Specter Voices Frustration Over Briefing on
Patriot Act, N.Y. Times, Apr. 13, 2005.
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CLEAR EVIDENCE OF PATRIOT ACT ABUSES, BUT EXTENT OF PROBLEM STILL
SECRET
In its three and one-half years, the government has abused and
misused the Patriot Act while seeking significant expansions of powers
granted under the Patriot Act.
Secrecy permeates the Patriot Act, particularly in its expansions
of intelligence authorities. Many powers are accompanied by statutory
gag orders. Moreover, the administration has taken the posture that
information that is embarrassing to it must be kept secret for reasons
of national security. For these reasons, it has been extremely
difficult to uncover information about how the Patriot Act has been
used, and even information about whether particular sections have been
used at all. The ACLU has repeatedly sought this information in
letters, requests under the Freedom of Information Act (FOIA) and in
FOIA litigation.
Despite the efforts of the executive branch to cover up information
about how controversial provisions of the Patriot Act have been used,
some information has become public. This information is disturbing in
and of itself, and may be emblematic of other abuses that have not yet
become public. Appended to this testimony are some examples of abuses
of intelligence powers expanded under the Patriot Act, and of the chill
on the exercise of First Amendment rights that such powers can create.
PATRIOT ACT INTELLIGENCE POWERS: GREATER SECRECY, LESS MEANINGFUL
REVIEW
In the debate over the Patriot Act, we ask the committee to pay
particular attention to the most intrusive expanded intelligence
surveillance techniques.
Secret Records Searches Without Probable Cause or an Ability to
Challenge: Library Records, Other ``Tangible Things,'' and
National Security Letters
Perhaps no sections of the Patriot Act have become more
controversial than the sections allowing the government secretly to
obtain confidential records in national security investigations--
investigations ``to protect against international terrorism or
clandestine intelligence activities.''
National security investigations are not limited to gathering
information about criminal activity. Instead, they are intelligence
investigations designed to collect infounation the government decides
is needed to prevent--``to protect against''--the threat of terrorism
or espionage. They pose greater risks for civil liberties because they
potentially involve the secret gathering of information about lawful
political or religious activities that Federal agents believe may be
relevant to the actions of a foreign government or foreign political
organization (including a terrorist group).
The traditional limit on national security investigations is the
focus on investigating foreign powers or agents of foreign powers.
Indeed, the ``foreign power'' standard is really the only meaningful
substantive limit for non-criminal investigations given the astonishing
breadth of information a government agent might decide is needed for
intelligence reasons. The Patriot Act eliminated this basic limit for
records searches, including the power under the Foreign Intelligence
Surveillance Act (FISA) to obtain with a FISA court order any records
or other ``tangible things,'' and the FBI's power to obtain some
records without any court review at all.
Section 215 of the Patriot Act allows the government to
obtain any records, e.g., library and bookseller records, medical
records, genetic information, membership lists of organizations, and
confidential records of refugee service organizations, as well as any
other ``tangible things'' with an order from the FISC. The order is
based merely on a certification by the government that the records are
``sought for'' a national security investigation and the judge is
required to issue the order. The order contains an automatic and
permanent gag order. Section 215 is subject to the sunset clause. Two
weeks ago, the government acknowledged for the first time that Section
215 has been used, that it has been used 35 times, and that it was used
to obtain credit, apartment, ISP and other records, but not library or
medical records.
Section 505 of the Patriot Act expanded the FBI's power to
obtain some records in national security investigations without any
court review at all. These ``national security letters'' can be used to
obtain financial records, credit reports, and telephone, Internet and
other communications billing or transactional records. The letters can
be issued simply on the FBI's own assertion that they are needed for an
investigation, and also contain an automatic and permanent
nondisclosure requirement. Section 505 does not sunset.
Although such demands never required probable cause, they did
require, prior to the Patriot Act, ``specific and articulable facts
giving reason to believe'' the records pertain to an ``agent of a
foreign power.'' The Patriot Act removed that standard for issuing
records demands in national security investigations.
As a result, a previously obscure and rarely used power can now be
used far more widely to obtain many more records of American citizens
and lawful residents. Because the requirement of individual suspicion
has been repealed, records powers can now be used to obtain entire data
bases of private information for ``data mining'' purposes--using
computer software to tag law abiding Americans as terrorist suspects
based on a computer algorithm.
These records search provisions are the subject of two court
challenges by the ACLU. In Muslim Community Association of Ann Arbor v.
Ashcroft, No. 03-72913 (E.D. Mich.), the ACLU has challenged section
215 of the Patriot Act First and Fourth Amendment grounds. As explained
in the case example, the ACLU's challenge has uncovered serious and
unconstitutional chilling effects of section 215 on the exercise of
basic freedoms. The district court has not yet ruled in this case.
In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a Federal
district court struck down a ``national security letter'' records power
expanded by the Patriot Act, agreeing with the ACLU that the failure to
provide any explicit right for a recipient to challenge a national
security letter search order violated the Fourth Amendment and that the
automatic secrecy rule violated the First Amendment. The case is now on
appeal before the United States Court of Appeals for the Second
Circuit.
There has been some confusion about whether Doe v. Ashcroft struck
down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck
down, in its entirety, 18 U.S.C. Sec. 2709(b), the national security
letter authority for customer records of communications service
providers, as amended by section 505(a) of the Patriot Act. The court
referred repeatedly to the Patriot Act in its opinion. To be clear, the
court invalidated all of section 505(a) of the Patriot Act. It is
simply inaccurate to imply that the court's decision was unrelated to
the Patriot Act, or that it did not strike down a provision of the
Patriot Act. If the court's decision is sustained on appeal, section
505(a) of the Patriot Act will no longer have any force or effect.\6\
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\6\ While the use of national security letters are secret, the
press has reported a dramatic increase in the number of letters issued,
and in the scope of such requests. For example, over the 2003-04
holiday period, the FBI reportedly obtained the names of over 300,000
travelers to Las Vegas, despite casinos' deep reluctance to share such
confidential customer information with the government. It is not clear
whether the records were obtained in part with a national security
letter, with the threat of such a letter, or whether the information
was instead turned over voluntarily or to comply with a subpoena.
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Both FISA records demands and national security letters can be used
to obtain sensitive records relating to the exercise of First Amendment
rights. A FISA record demand could be used to obtain a list of the
books or magazines someone purchases or borrows from the library. A
FISA record demand could be used to obtain the membership list of a
controversial political or religious organization. A national security
letter could be used to monitor use of a computer at a library or
Internet cafe under the government's theory that providing Internet
access (even for free) makes an institution a ``communications service
provider'' under the law.
While both national security letters and FISA records demands
cannot be issued in an investigation of a United States citizen or
lawful permanent resident if the investigation is based ``solely'' on
First Amendment activities, this provides little protection. An
investigation is rarely, if ever, based ``solely'' on any one factor;
investigations based in large part, but not solely, on constitutionally
protected speech or association are implicitly allowed. An
investigation of a temporary resident can be based ``solely'' on First
Amendment activities, and such an investigation of a foreign visitor
may involve obtaining records pertaining to a United States citizen.
For example, an investigation based solely on the First Amendment
activities of an international student could involve a demand for the
confidential records of a student political group that includes United
States citizens or permanent residents.
The expanded scope and broader use of both FISA records demands and
national security letters has exacerbated other constitutional problems
with the statute under both the First Amendment and the Fourth
Amendment. Unlike almost every other type of subpoena or records
demand, neither statute contains any explicit right to file a motion to
quash the demand before a court on the ground that the demand is
unreasonable or seeks privileged information. Similarly, both types of
records demands bar the recipient from disclosing that the demand has
been issued. This permanent secrecy order is imposed automatically, in
every case, without any review by a judge, without any right to
challenge. The district court ruling in Doe v. Ashcroft makes clear
these problems are severe enough to invalidate the entire national
security letter statute--not just the portions amended by the Patriot
Act.
A power to secretly obtain records of ordinary Americans--i.e.,
Americans who are not suspected of involvement with any foreign
government or terrorist organization--outside of a criminal
investigation is a vast power. The government bears the burden in
showing such a power ``actually materially enhances security.'' If the
government sustains this burden, it is clear, as even Attorney General
Gonzales has acknowledged, that additional safeguards must be added.
Recommendation: Congress should bring intelligence records powers
(national security letters and FISA records search orders) back into
line with basic constitutional freedoms. Congress should enact the SAFE
Act, which restores the requirement of individual suspicion, provides a
right to challenge records demands, limits the secrecy order and
provides for a right to challenge the secrecy order.
The SAFE Act (``Security and Freedom Enhancement Act,'' S. 737)
restores the requirement of ``specific and articulable facts giving
reason to believe'' the records involve an ``agent of a foreign power''
for both FISA records demands and national security letters. In
addition, the SAFE Act makes explicit the right to file a motion to
quash the records demands because they are unreasonable, contrary to
law, or seek privileged information. The SAFE Act also sets standards
for a judicially imposed, temporary secrecy order that can be
challenged by the recipient of a records demand. Finally, the SAFE Act
provides a right to notice, and an opportunity to challenge, before
information from a FISA records search or national security letter
search can be used in a court proceeding.
As the Attorney General concedes is necessary, Congress should
certainly make clear what the government has now conceded should be the
law--that the secrecy order does not prevent recipients from discussing
records demands internally or obtaining legal advice. Without public
scrutiny, the potential for unreasonable ``fishing expeditions'' using
a secret, unreviewable records power is simply too great.
Secret Searches and Surveillance of Homes and Offices
A government search or electronic surveillance of a home or office
generally requires a warrant based on probable cause of crime under the
Fourth Amendment. As a general rule, the owner of the home or office is
entitled to notice of the search. Foreign intelligence searches have
been an exception to this rule. They do not require criminal probable
cause and forbid notice to the owner.
The special power to secretly search a home or office, without ever
notifying the owner, is among the most intrusive domestic surveillance
powers available to the Federal Government. Such ``black bag jobs''
were the hallmark of national security investigations run amok,
including COINTELPRO and other investigations of civil rights
activists, anti-war activists, and other Americans who in the end were
guilty of nothing more than peacefully opposing government policies.
The inappropriate use of a secret search power, without court
oversight, led directly to warrantless wiretaps of civil rights leaders
and, eventually, an unauthorized ``black bag job'' at the Watergate,
sending a shock wave through the Nation and prompting thorough and
searching reviews of the intelligence community. These reviews led
Congress to enact important reforms of intelligence powers, including
the passage of the Foreign Intelligence Surveillance Act (FISA) and the
creation of this committee.
While FISA secret searches and wiretaps pre-date the Patriot Act,
two vital protections that cabined such searches until 2001 have been
seriously eroded by amendments that are subject to the December 31,
2005 sunset. First, section 218 of the Patriot Act allowed the
government to obtain a FISA secret search order even where the
``primary purpose'' of the search was not foreign intelligence. Second,
for searches of so-called ``lone wolf '' terror suspects, section 6001
of the Intelligence Reform and Terrorism Prevention Act of 2004\7\
eliminated, for the first time, the basic requirement applied by the
Foreign Intelligence Surveillance Court for all FISA secret searches
and surveillance: that probable causes exists that the target of the
search is a foreign power or agent of foreign power.
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\7\ Pub. L. No. 108-458, 118 Stat. 3638.
---------------------------------------------------------------------------
Section 218 of the Patriot Act. This provision of the Patriot Act
takes aim at a provision of FISA designed to ensure against the
government using FISA improperly as an end-run around the Fourth
Amendment for criminal suspects. Prior to the Patriot Act, government
officials had to certify that the primary purpose of a secret FISA
search was to obtain foreign intelligence.\8\ Section 218 of the
Patriot Act weakened this standard, allowing agents to obtain these
warrants so long as they certify that ``a significant purpose'' of the
search is foreign intelligence.
---------------------------------------------------------------------------
\8\ The pre-Patriot Act statute required the government to certify
that foreign intelligence was ``the purpose'' of the search. Where the
government had both foreign intelligence and criminal investigation
purposes, courts interpreted this language to mean that foreign
intelligence purpose had to be the ``primary purpose'' of the search;
otherwise, the government should use its criminal powers. See In Re
Sealed Case, 310 F.3d 717, 726 (For. Intel. Surv. Ct. Rev. 2002)
(collecting pre-Patriot Act cases).
---------------------------------------------------------------------------
The danger of section 218's lower standard is that the government
will cut corners in criminal cases. Because foreign intelligence no
longer must be the primary purpose of the search, the government can
use FISA as a substitute for traditional criminal powers. As a result,
now the government can--for what are primarily criminal searches--evade
the Fourth Amendment's constraints of probable cause of crime and
notice to the person whose property is being searched.
Brandon Mayfield is a case where such corners may have been cut. As
described in more detail in the appendix, Mr. Mayfield is a Portland,
Oregon resident who is a convert to Islam and a civil rights advocate.
Mr. Mayfield was wrongly accused by the government of involvement in
the Madrid bombing as a result of a evidence, including a mistaken
fingerprint identification, that fell apart after the FBI
re-examined its case following its arrest and detention of Mr. Mayfield
on a material witness warrant.
As Attorney General Gonzales acknowledged at a hearing before the
Senate Judiciary Committee, Section 218 of the Patriot Act was
implicated in the secret search of Mr. Mayfield's home. The FBI
secretly entered the home of an innocent man it wrongly suspected of a
crime without a warrant based on criminal probable cause. It did so
because the Patriot Act had made it easier to conduct such a search
with a FISA search order. While there, agents took hundreds of
photographs, copied four computer hard drives and seized 10 DNA
samples. Prior to the Patriot Act, it is doubtful the search could have
taken place under FISA, and instead would likely have been governed by
normal search warrant procedures and the exacting standard of criminal
probable cause.
Recommendation: Congress should permit limited access to FISA
applications, consistent with national security, where FISA-gathered
information is used in a criminal case. Congress can do so by enacting
legislation applying CIPA to FISA surveillance. It should also ensure
that prosecutors do not direct intelligence surveillance.
If the government is able to meet the burden of showing section 218
``actually materially enhances security,'' the Mayfield case and the
danger of future abuses shows the need for additional safeguards.
Without re-building the much-maligned ``wall'' between foreign
intelligence and criminal investigations, Congress should follow the
approach of the Foreign Intelligence Surveillance Court (FISC),
restoring its power to serve its proper supervisory function to prevent
the misuse of FISA. Congress should empower the court to make sure
foreign intelligence investigations are not directed by Federal
prosecutors, although prosecutors and criminal investigators should be
allowed full briefings on such investigations.
In its first (and, so far, only) public opinion, the FISC, in an
opinion by Judge Lamberth, expressed alarm at the fact that ``criminal
prosecutors will tell the FBI when to use FISA (perhaps when they lack
probable cause)'' of crime, and noting its highly intrusive aspects,
including:
a foreign intelligence standard instead of a criminal
standard of probable cause;
use of the most advanced and highly intrusive techniques
for intelligence gathering; and
surveillances and searches for extensive periods of time;
based on a standard that the U.S. person is only using or about to use
the places to be surveilled and searched, without any notice to the
target unless arrested and prosecuted, and, if prosecuted, no
adversarial discovery of the FISA applications and warrants.'' \9\
---------------------------------------------------------------------------
\9\ In re All Matters Submitted to the Foreign Intelligence
Surveillance Court, 218 F. Supp. 2d 611, 624 (For. Intel. Surv. Ct.
2002).
---------------------------------------------------------------------------
Judge Lamberth observed that the FISC's members had ``specialized
knowledge,'' had reviewed ``several thousand FISA applications,'' and
were ``mindful of the FISA's pre-eminent role in preserving our
national security, not only in the present national emergency, but for
the long term as a constitutional democracy under the rule of law.''
\10\ It reasoned that, as a result, it retained supervisory powers to
protect against the misuse of FISA for criminal investigative purposes.
---------------------------------------------------------------------------
\10\ Id. at 615.
---------------------------------------------------------------------------
The Foreign Intelligence Surveillance Court of Review reversed this
opinion, reasoning that section 218 of the Patriot Act had stripped the
FISC of this role.\11\ If Congress reauthorizes section 218, it should
amend it to make clear that the provision does not prohibit the FISC
from adopting guidelines to prevent the direction and control of
foreign intelligence investigations by prosecutors for law enforcement
ends.
---------------------------------------------------------------------------
\11\ See In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct.
Rev. 2002).
---------------------------------------------------------------------------
Congress should also explore a remedy for one of the serious
problems inherent in making FISA searches more available in what are
primarily criminal investigations: the lack of ``adversarial discovery
for FISA applications and warrants.'' This is in marked contrast to the
extensive discovery available to criminal defendants, enabling the
court to hold government officials accountable for unlawful searches
and surveillance.
Congress should enact legislation making available to the defense
such ``adversarial discovery of FISA applications and warrants'' using
the carefully crafted Classified Information Procedures Act (CIPA).
Last Congress, the ACLU strongly supported S. 1552, the Protecting the
Rights of Individuals Act, sponsored by Senators Lisa Murkowsky (R-AK)
and Ron Wyden (D-OR), which included this provision at section 9. An
identical provision was also included as section 401 of S. 2528, the
Civil Liberties Restoration Act, sponsored by Senators Kennedy (D-MA),
Corzine (D-NJ) and Leahy (D-VT), among others.
Section 6001 of the Intelligence Reform and Terrorism Prevention
Act of 2004. Section 6001 further eroded the basic safeguards included
in FISA by authorizing, for the first time, secret searches and
surveillance of homes and businesses where there is neither criminal
probable cause nor probable case that the person is acting on behalf of
any foreign power.
FISA rests what would otherwise plainly be unconstitutional
searches (because they are not based on probable cause of crime) on an
alternate showing: probable cause that those individuals are acting on
behalf of a foreign power. By eliminating this alternate showing for
non-citizen visitors to the United States suspected of being ``lone
wolf '' terrorists, we believe section 6001 violates the Fourth
Amendment.
Moreover, section 6001 was not needed to address deficiencies in
the use of FISA search powers uncovered after September 11, its
original rationale. The National Commission on Terrorist Attacks Upon
the United States (``9-11 Commission'') uncovered a number of serious,
structural breakdowns in the intelligence community prior to September
11. A lack of legal authority to collect intelligence information was
not among its findings.
Section 6001 has erroneously been described as necessary to respond
to the government's failure to seek a warrant to search the laptop
computer of suspected terrorist Zacarias Moussaoui. The 9-11 Commission
rejected that conclusion, finding that government agents
``misunderstood and misapplied'' guidelines regarding FISA search
warrants, and that these mistakes contributed to their failure to seek
either a criminal or FISA warrant in the Moussaoui case.\12\ The 9-11
Commission did not recommend any change to existing legal authorities,
including FISA.
---------------------------------------------------------------------------
\12\ Final Report of the National Commission on Terrorist Attacks
Upon the United States 79, 540 n.94 (2004).
---------------------------------------------------------------------------
In a February 2003 report on FISA oversight, Senators Leahy,
Grassley and Specter noted, with respect to this proposed change, that
the Department of Justice was unable to provide even a single case,
even in a classified setting, that explained why what became section
6001 was needed. As the report states, ``In short, DOJ sought more
power but was either unwilling or unable to provide an example as to
why.''
Section 6001 could do serious harm to the government's anti-
terrorism efforts if a court concludes that the surveillance it
authorizes violates the Fourth Amendment, making the evidence obtained
by such surveillance inadmissible. The ``foreign power'' standard--
which section 6001 eliminates for non-citizens--is integral to the
rationale given by the Foreign Intelligence Surveillance Court of
Review in its opinion upholding FISA surveillance against a
constitutional challenge.\13\
---------------------------------------------------------------------------
\13\ See In re Sealed Case, supra, at 738 (relying on ``foreign
power'' probable cause to hold that FISA secret searches and
surveillance satisfy Fourth Amendment standards of reasonableness).
---------------------------------------------------------------------------
This committee should review carefully actual applications for
secret searches or surveillances under the new power provided by
section 6001 to determine whether such searches or surveillance could
have been undertaken using traditional criminal powers, and whether
section 6001 ``actually materially enhances security.'' If the
government satisfies this test and Congress decides to re-authorize
section 6001, Congress should consider additional safeguards.
Recommendation: Congress should modify section 6001 to provide a
presumption that an individual who is involved in international
terrorism is acting for a foreign power. This compromise, offered by
Senator Dianne Feinstein (D-CA) to legislation that became section
6001, would give the Foreign Intelligence Surveillance Court more
discretion to ensure against misuse of FISA.
When S. 113, the legislation that became section 6001, was being
debated in the Senate, Senator Dianne Feinstein offered a compromise
that the ACLU supported. The Feinstein amendment would have formally
preserved the FISA requirement that the FISA court determines that the
target of a surveillance order is an agent of a foreign power before a
surveillance order is authorized, but it allowed the court to presume
such agency based on conduct that does not necessarily show such
agency. Because the amendment would preserve some discretion on the
part of the FISA court to determine that an individual should not be
subject to surveillance because they are not, in fact, an agent of a
foreign power, the ACLU urges Congress to adopt the Feinstein amendment
if it decides to reauthorize section 6001.
Wiretapping and Electronic Surveillance Without Judicial Safeguards
Limiting
Orders to the Targets of an Investigation
``General warrants''--blank warrants that do not describe what may
be searched--were among those oppressive powers used by the British
crown that led directly to the American Revolution. As a result, the
framers required all warrants to ``particularly describ[e] the place to
be searched, and the persons or things to be seized.''
The same ``particularity'' requirements apply to wiretap orders. In
the landmark case United States v. Donovan, 429 U.S. 413 (1977), a
majority upheld the Federal criminal wiretap law, noting that Congress
had redrafted the law to include safeguards regarding, among other
things, the need to identify targets of surveillance in response to the
``constitutional command of particularization.''\14\
---------------------------------------------------------------------------
\14\ Id. at 426-27 (quoting S. Rep. No. 1097, 90th Cong., 2nd
Sess., at 66 (1968), reprinted in U.S. Code Cong. and Admin. News 1968,
at 2190).
---------------------------------------------------------------------------
Congress has also authorized Federal judges to issue electronic
surveillance orders in foreign intelligence cases, including wiretaps
of telephone conversations and intercepts of the content of other
electronic communications (faxes, e-mail, etc.).
The Patriot Act erodes the basic constitutional rule of
particularization:
Section 206 creates ``roving wiretaps'' in foreign
intelligence cases. As amended by later legislation, these wiretaps do
more than allow the government to get a single order that follows the
target of surveillance from telephone to telephone. The government can
now issue ``John Doe'' roving wiretaps that fail to specify a target or
a telephone, and can use wiretaps without checking that the
conversations they are intercepting actually involve a target of the
investigation. Section 206 is subject to the Patriot Act's sunset
clause.
Section 207 greatly increases the length of time that
foreign intelligence wiretaps may be used without any judicial
oversight--from 90 days to 6 months for the initial order, with
renewals allowing surveillance to continue for a year before require
judicial approval. Section 207 is subject to the Patriot Act's sunset
clause.
Section 206 of the Patriot Act: Foreign intelligence ``roving
wiretaps.'' ``Roving wiretaps'' are a particularly potent form of
electronic surveillance, allowing the government to obtain a single
wiretap order that follows a target as the target uses different
telephones or devices to communicate. Prior to the passage of the
Patriot Act, roving wiretaps were available in criminal investigations
(including criminal investigations of terrorists), but were not
available in foreign intelligence investigations.
Because roving wiretaps contain more potential for abuse than
traditional wiretaps, which apply to a single telephone or other
device, when Congress enacted roving wiretaps for criminal
investigations, it insisted on important privacy safeguards. First, a
criminal wiretap must specify either the identity of the target or the
communications device being used. In other words, a surveillance order
may specify only the target, or only the phone, but it must specify one
or the other. Second, a criminal wiretap that jumps from phone to phone
or other device may not be used unless the government ``ascertains''
that the target identified by the order is actually using that device.
When Congress enacted the Patriot Act, it extended ``roving
wiretap'' authority to FISA investigations, but did not include the
common sense ``ascertainment'' safeguard. Shortly thereafter, the newly
enacted roving wiretap authority was broadened by the Intelligence Act
for fiscal year 2002, which authorized wiretaps where neither the
target nor the device was specified. As a result, FISA now allows
``John Doe'' roving wiretaps--wiretaps that can follow an unknown
suspect from telephone to telephone based only on a potentially vague
physical description, opening the door to surveillance of anyone who
fits that description, or anyone else who might be using that
telephone.
Because of this danger, if Congress is satisfied the government has
met its burden to show FISA roving surveillance authority ``actually
materially enhances security'' and should be renewed, it should include
additional privacy safeguards.
Recommendation: Congress should include an ascertainment
requirement and should require electronic surveillance orders to
specify either a target or a telephone or other device, by enacting the
bipartisan SAFE Act of 2005.
Congress should tighten the FISA roving wiretap so that it has the
same safeguards for privacy as criminal roving wiretaps. Supporters of
the Patriot Act often argue that changes to the law were needed to give
the government the same powers in foreign intelligence investigations
that it already had in criminal investigations. To the extent that is
appropriate, it is fair to insist that the same safeguards apply as
well.
Section 2 of S. 737, the SAFE Act, would provide just such
safeguards. While it preserves FISA roving surveillance authority, it
also makes sure that these privacy safeguards, which apply to criminal
roving wiretaps, would also apply to FISA roving wiretaps.
Section 207 of the Patriot Act. The time periods for foreign
intelligence surveillance orders were already much longer than for
criminal surveillance orders even before the passage of the Patriot
Act. Permitting surveillance to continue for a year with no judicial
review opens the door for abuse. The Justice Department's main
justification for allowing review to continue for such a long period
has been the ability to conserve attorney time and other resources
needed to process renewal applications.
If the administration can show the sharp increases in FISA secret
searches and surveillance enabled by this and other provisions
``actually materially enhances security,'' Congress should consider the
cost in lost oversight of highly intrusive powers. It may be possible
to get the benefits while preserving oversight.
Recommendation: Congress should extend the sunset provision on this
section and conduct an investigation to determine whether it should
shorten the periods for FISA surveillance, and it should consider
providing additional resources to the Justice Department and the FISC.
Congress should consider whether it can shorten these periods by
conducting a searching review of FISA surveillance conducted under the
lengthened periods. Was it productive for the entire period it was
authorized? If the problem is a lack of resources, the solution should
not be to shortchange judicial oversight. Precisely because there is
increased pressure to engage in surveillance early to prevent terrorism
before it happens, there is an increased danger of abuse and an
increased need for judicial oversight. Congress should provide
sufficient funds both to the Department of Justice and to the Foreign
Intelligence Surveillance Court to handle the important work of
reviewing surveillance orders.
Internet Surveillance Without Probable Cause: Web Browsers, E-Mail, and
``Pen/Trap'' Devices
While the ``probable cause'' standard has long applied both to
physical searches and electronic intercepts of the content of
conversations, surveillance techniques that monitor only who is sending
or receiving information (often called ``routing information''), but do
not intercept the content of communications, do not require probable
cause.
For telephones, pen registers and ``trap and trace'' devices have
long been available to track the telephone numbers dialed, and the
telephone numbers of incoming calls. These numbers could then be cross-
referenced, through a reverse telephone directory, to identify to whom
a target of a pen/trap device is calling. A similar technique, ``mail
covers,'' is used to track the outside cover of an envelope sent
through the mail. Neither technique requires probable cause, although a
court order may be needed.
Prior to the passage of the Patriot Act, it was unclear how the law
allowing pen/trap devices for telephone communications applied to
communications over the Internet. Federal agents argued they should be
allowed, without showing probable cause or obtaining a surveillance
order, to monitor the ``header'' information of an e-mail and the URL
of a web page.
Privacy advocates urged caution, noting that Internet
communications operate very differently than traditional mail or
telephone communications. For example, the ``header'' information of an
e-mail contains a wealth of information, such as a subject line or an
entire list of thousands or even hundreds of thousands of addressees. A
monitoring order would allow the government to obtain, without probable
cause, a political, charitable or religious organization's electronic
mailing list. In short, e-mail headers provide far more content than is
typical on the outside of an envelope.
Likewise, the ``link'' at the top of a web browser contains not
only the website visited, but also the precise pages viewed, or the
search terms or other information entered by the user on a web-based
form. For example, in the popular search engine ``google,'' a user
looking for information about a drug such as ``viagra'' generates the
web address http://www.google.com/search?hl=en&lr=&q=viagra.
Section 214 of the Patriot Act broadens the use of Internet
surveillance, without probable cause, by extending the pen/trap
surveillance technique from a relatively narrow arena of facilities
used by agents of foreign powers or those involved in international
terrorism to include any facility. Pen/trap surveillance can now be
used far more widely to monitor the Internet use of ordinary Americans.
Pen/trap for the Internet suffers from a basic flaw: in extending
this intrusive surveillance authority to the Internet, Congress did not
adequately take account the differences between the Internet and
traditional communications that make intercept of Internet ``routing
information'' far more intrusive as applied to Internet communications.
If the administration can show that section 214 of the Patriot Act
``actually materially enhances security'' and should be renewed,
Congress should insist on additional protections to take into account
the differences between Internet and traditional telecommunications.
Recommendation: Congress should insist on rules that clearly define
content and prohibit the use of techniques that acquire content without
a surveillance order based on probable cause. In addition, because
obtaining ``routing information'' in the Internet world is even more
intrusive than pen registers and trap and trace devices applied to
traditional telecommunications. Congress should enact the SAFE Act,
which provides that pen/trap orders require more specific
justification.
Congress should insist on rules that:
Clearly define content for Internet communications.
Congress should be specific. For e-mails, at the very least, the
subject line and any private (i.e., ``bcc'') list of addresses should
be off limits without a surveillance order based on probable cause. For
Internet browsing, obtaining any information behind the top level
domain name should likewise be barred without probable cause. For
example, an agent could obtain a list of websites visited (like
www.aclu.org) but not of webpages visited (like www.aclu.org/
patriotact) or search tetras entered (like http://www.google.com/
search?hl=en&q=aclu+craig+durbin+safe+act).
Prevent techniques that acquire content from being used in
the absence of an order based on probable cause. The Internet does not
work like traditional telephones or the mail. The constitutionally
protected content of communications may be difficult, or even
impossible, to separate from the ``routing information.'' For example,
e-mail may be sent through the Internet in discrete ``packets,'' rather
than as a single file, to permit the information to be sent along the
most efficient route, then reassembled at the destination, using codes
that are attached to the packets of information. The burden should be
on the government to develop techniques that do not incidentally
acquire content. In the absence of those techniques, a surveillance
order based on probable cause should be required. Federal agents should
not be put in the untenable position of incidentally gathering
constitutionally protected content in the course of obtaining ``routing
information,'' and then being forced to delete or ignore the content
information.
The debate over extending pen/trap authority, which is not based on
probable cause, to Internet communications, is not about whether
criminals or terrorists use the Internet. Of course they do. The
question is how to ensure that Congress does not erode the privacy of
everyone by authorizing surveillance techniques, not based on probable
cause, that fail to account for the differences between traditional
communications and Internet communications.
Because pen/trap authority as applied to the Internet is
particularly intrusive, even with rules that define content more
properly, Congress should insist that pen/trap orders require more
specific justification. The ACLU urges adoption of the SAFE Act.
Section 6(b) of the act would require, for FISA pen/trap authority,
more than a simple certification that the information is relevant to a
foreign intelligence investigation.
While the SAFE Act would not require probable cause for FISA pen/
trap authority it adds teeth to the relevance test. The SAFE Act would
require the government to provide a ``statement by the applicant of
specific and articulable facts showing there is reason to believe'' the
information obtained by the pen/trap device is relevant to the
investigation.
conclusion: restoring checks and balances
The Patriot Act provisions that pose the greatest challenges share
certain common themes. As a result of gag orders, or delayed
notification, they permit surveillance with a far greater degree of
secrecy than is common in most government investigations. They do not
allow affected parties the opportunity to challenge government orders
before a judge. Finally, because the substantive standards for some
forms of surveillance have been modified, weakened, or even eliminated,
the role of the Foreign Intelligence Surveillance Court in checking
government abuse has been made less meaningful.
This committee's review of the Patriot Act and related legal
measures in the ongoing effort to combat terrorism is needed to ensure
continued public support for the government's efforts to safeguard
national security. The controversy over the Patriot Act reflects the
concerns of millions of Americans for preserving our fundamental
freedoms while safeguarding national security. To date, resolutions in
opposition to parts of the Patriot Act and other actions that infringe
on fundamental rights have been passed in in 377 communities in 43
states including five state-wide resolutions.
Such widespread concern, across ideological lines, reflects the
strong belief of Americans that security and liberty need not be
competing values. Congress included a ``sunset provision'' precisely
because of the dangers represented by passing such far-reaching changes
in American law in the aftermath of the worst terrorist attack in
American history. Now is the time for Congress to complete the work it
began when it passed the Patriot Act, by bringing the Patriot Act back
in line with the Constitution.
______
Example of Patriot Act Abuse--Brandon Mayfield
On March 11, 2004 a bomb exploded in Madrid killing hundreds of
people. The government obtained from Spanish authorities fingerprint
images from a blue bag found at the scene containing seven detonators
thought to be of the same type used in the bombing. The FBI concluded
that the fingerprints matched those of a Portland attorney, Brandon
Mayfield. He was arrested on May 6 on a material witness warrant.
Court documents show that Brandon Mayfield, a convert to Islam, was
investigated at least in part because of his religion. For example, the
material witness warrant alleged, among other things, that Mayfield, a
Muslim, was seen driving from his home to the Bilal mosque, where he
worshipped.
On March 24, 2005, the FBI admitted to Mayfield's attorney that his
home had been secretly searched under the Foreign Intelligence
Surveillance Act (FISA), which the Patriot Act amended. The FBI
admitted that it copied four computer hard drives, digitally
photographed several documents, seized 10 DNA samples and took
approximately 335 digital photographs of the residence and Mr.
Mayfield's property. At an April 5 hearing before the Senate Judiciary
Committee, Attorney General Gonzales specified that Sections 207 and
218 of the Patriot Act had been used. Section 207 lengthened the
allowable time allotted to the FBI to secretly search Mayfield's home.
Section 218 makes it easier to use intelligence authorities in criminal
cases.
The Patriot Act facilitated FISA search of Mayfield's home. Before
the law's passage, the government could conduct a FISA search only if
the ``primary purpose'' of the search was to gather foreign
intelligence information. Under Section 218 of the Patriot Act,
gathering such information need only be a ``significant purpose'' of a
FISA search. The Mayfield search occurred directly after the Madrid
bombing as part of the FBI's investigation. This suggests strongly that
the ``primary purpose'' of the search was not to gather foreign
intelligence information, but to uncover incriminating evidence.
Prior to the Patriot Act, authorities would not have been able to
use FISA to conduct absolutely secret ``black bag'' intelligence
searches where the primary purpose of the search was criminal
investigation.
Example of Patriot Act Abuse--Unconstitutional National Security
Letters
Section 505 of the Patriot Act expanded the government's authority
to use National Security Letters (NSL's) to seize information from
businesses and others, with no judicial approval. Prior to the Patriot
Act, the government could use NSL's to obtain records about alleged
terrorists or spies--people who were thought to be ``foreign powers''
or their agents. Financial, travel and certain Internet Service
Provider (ISP) records are accessible under the NSL authority. Section
505 changed the law to allow the use of NSL's to obtain such records
about anyone without the limitation that they be agents of foreign
powers. In the Intelligence Authorization Act of 2004\15\ Congress
further expanded the NSL letter authority to permit seizure of casino
and other records.
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\15\ Pub. L. No. 108-177, Section 374 (Dec. 13, 2003).
---------------------------------------------------------------------------
On a date that the government maintains must be kept secret for
reasons of national security, the FBI served an NSL on an ISP the
identity of which the government also claims must be kept secret for
reasons of national security. Through its NSL authority at 18 U.S.C.
Section 2709, the government can seek certain sensitive customer
records from ISPs--including information that may be protected by the
First Amendment--but the ISP can never reveal that it has been served
with an NSL, and nothing in the statute suggests that the NSL can be
challenged in court. On behalf of the ISP and itself, the ACLU
challenged the statute as amended by the Patriot Act, as a violation of
the First and Fourth Amendments because it does not impose adequate
safeguards on the FBI's authority to force disclosure of sensitive and
constitutionally protected information and because its gag provision
prohibits anyone who receives an NSL from disclosing in perpetuity and
to any person even the mere fact that the FBI has sought information.
On September 28, 2004, Judge Victor Marrero of the Southern
District of New York issued a landmark decision striking down as
unconstitutional the NSL statute and its gag provision. The court
struck down the entire statute as violative of Fourth and First
Amendment rights, thus rendering any use of the statute an abuse of
those rights. The court found that there have been hundreds of such
uses.\16\ It found that the statute was abusive in practice because it
sanctioned NSL's that coerced immediate compliance without effective
access to court review or an opportunity to consult with counsel:
---------------------------------------------------------------------------
\16\ Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at
63-64. The court concluded that hundreds of NSL's had been requested by
the FBI from October 2001 through January 2003, and hundreds must have
been issued during the life of the statute. The government takes the
position that even the number of NSL's it issues cannot be disclosed
for reasons of national security, though it has disclosed publicly to
Congress a number of such uses. See, e.g. ``H.R. 3179, The ``Anti-
Terrorism Intelligence Tools Improvement Act of 2003,'' Hearings Before
the Subcomm. on Crime, Terrorism, and Homeland Security of the House
Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J.
Harrington, Deputy Assistant Director of the FBI Counterterrorism
Division).
The form language of the NSL served upon [plaintiff ISP] Doe,
preceded by an FBI phone call, directed him to personally
provide the information to the FBI, prohibited him, his
officers, agents and employees from disclosing the existence of
the NSL to anyone, and made no mention of the availability of
judicial review to quash or otherwise modify the NSL or the
secrecy mandated by the letter. Nor did the FBI inform Doe
personally that such judicial review of the issuance of the NSL
or the secrecy attaching to it was available. The court
concludes that, when combined, these provisions and practices
essentially force the reasonable NSL recipient to immediately
comply with the request.\17\
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\17\ Id. at pp. 44-45.
In finding the statute unconstitutional under the Fourth Amendment,
Judge Marrero referred repeatedly to the amendments made by Section
505. He noted as an example of the kind of abuse now authorized by the
statute that it could be used to issue a NSL to obtain the name of a
person who has posted a blog critical of the government, or to obtain a
list of the people who have e-mail accounts with a given political
organization.\18\ The government could not have obtained this
information with an NSL prior to the Patriot Act amendment in Section
505, unless the blogger or the people with such accounts were thought
to be foreign powers or agents of foreign powers. The court also cited
Patriot Act Section 505 as a reason it struck down the statute on First
Amendment grounds. The court determined that the tie to foreign
powers--eliminated by Section 505--``limits the potential abuse'' of
the statute\19\ and distinguishes it from other intelligence search
provisions that retain the requirement of such a tie and include a
statutory gag provision.
---------------------------------------------------------------------------
\18\ Id. at p. 75.
\19\ Id. at p. 93.
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Because of the gag in 18 U.S.C. Section 2709(c), the government
obtained a sealing order it has consistently used to suppress wholly
innocuous information in the litigation. Until the court struck down
the statute, the government prevented the ACLU from disclosing that it
represented someone that had been served with an NSL, and from even
acknowledging that the government had used a statutory power. The
government has demanded that the ACLU redact a sentence that described
its anonymous client's business as ``provid[ing] clients with the
ability to access the Internet.'' Ironically, the government even
insisted that the ACLU black out a direct quote from a Supreme Court
case in an ACLU brief:
``The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the
power to protect `domestic security.' Given the difficulty of
defining the domestic security interest, the danger of abuse in
acting to protect that interest becomes apparent.''
The gag in Section 2709 would effectively prevent an ISP (or its
lawyers) from disclosing other abuses of Section 2709. For example, if
the government was targeting someone because of their First Amendment
activity, or if the ISP was being forced to turn over First Amendment
protected information about associational activities, the gag would bar
disclosure of this abuse.
examples of the chilling effects of patriot act section 215
In July 2003, the ACLU filed suit on behalf of six community and
non-profit organizations because it had learned of a serious chilling
effect that resulted from Section 215 of the Patriot Act.\20\ Excerpts
from some plaintiffs' declarations highlight how Section 215 chills
political speech and hinder privacy rights:
---------------------------------------------------------------------------
\20\ Muslim Community Association of Ann Arbor v. Ashcroft, Civil
Action No. 03-72913 (E.D. Mich., filed July 30, 2003).
---------------------------------------------------------------------------
The president of a community association: ``The enactment of
Section 215 has significantly changed the way members of [the Muslim
Community Association of Ann Arbor, or MCA] participate in the
organization. Many previously active members have become passive ones.
Attendance at daily prayer services, educational forums, and social
events has dropped. Some members have totally withdrawn their
membership from MCA. Charitable donations to MCA have decreased.'' \21\
---------------------------------------------------------------------------
\21\ Nazih Hassan Decl. para. 22.
---------------------------------------------------------------------------
A prominent member of the association: ``Although I had been very
outspoken politically before passage of the Patriot Act, I became
afraid after the Patriot Act was passed that if I continued to remain a
vocal and visible Muslim, the government would target me for
investigation and seek private records about me even though I had not
done anything wrong.
``While I was upset by several policies of the U.S. and would have
ordinarily taken a leadership role in protesting these policies, I
decided to step out of the limelight to lessen the chances that the
government would target me for an investigation under the Patriot
Act.'' \22\
---------------------------------------------------------------------------
\22\ John Doe (Member of MCA) Decl. para.para. 8-9.
---------------------------------------------------------------------------
The administrator of a Christian refugee aid organization:
``Section 215 has harmed our ability to serve our clients in a number
of different ways.
``Section 215 has caused Bridge to redirect resources from client
assistance. Resources that we otherwise would have used to help clients
are instead being used to re-evaluate our recordkeeping and record
retention policies.
``Because we would not have an opportunity to challenge a Section
215 order before complying with it, we have had no choice but to act
now to ensure that our records do not contain personal or other
sensitive information that we could be forced to disclose to the
government. Accordingly, my staff and I have been deciding on a case-
by-case basis to exclude some sensitive information from our files.
``While we believe that we have no practical choice but to adopt
this policy, there is no question that the practice compromises the
level of services we can provide to our clients.'' \23\
---------------------------------------------------------------------------
\23\ Mary Lieberman Decl. para.para. 23-27.
Patriot Act Intelligence Authorities: Recommended Safeguards
----------------------------------------------------------------------------------------------------------------
Recommended
Intelligence Surveillance Power Before 9/11 Now Sunsets? safeguard (if
power is retained)
----------------------------------------------------------------------------------------------------------------
FISA records FISA search orders. FISA search orders Now these orders Yes............... Congress should
Patriot Act Sec. 215 were available are available for enact legislation
only for certain any and all limiting such
travel-related ``tangible orders to where
``business'' things,'' the FBI has
records on basis including library ``specific and
of individualized records, medical articulable
suspicion records, and facts''
connecting other highly connecting
records to personal records, records to
foreign agent.. without foreign agent. In
individual addition,
suspicion.. Congress should
provide a right
to challenge the
order, limits on
the secrecy order
and a right to
challenge that
order, and notice
and an
opportunity to
challenge the use
of such
information in
court.
SAFE Sec. 4 (S.
737, 109th Cong.)
National security letters (no Were available Now available No................ Congress shouild
court order required) for only where FBI without enact legislation
financial records, telephone could show individual that restores the
and ISP bills, consumer credit ``specific and suspicion; requirement of
reports.. articulable definition of individual
Patriot Act Sec. 505 facts'' ``financial suspicion,
Intelligence Act for FY 2004 connecting records'' greatly provides a right
Sec. 334 records to expanded.. to challenge
foreign agent.. records demands,
limits the
secrecy order and
provides for a
right to
challenge the
secrecy order,
and providing
notice to persons
when the
governmennt seeks
to use
information from
such demands
against them in
court.
SAFE Sec. 5
FISA secret searches and Available only if Permitted when Yes............... Congress should
wiretaps in criinal ``primary ``primary clarify that FISC
investigations. purpose'' is to purpose'' is retains
Patriot Act Sec. 218 obtain foreign criminal supervisory power
intelligence. investigation, as to ensure FISA
long as ``a searches are not
significant directed or
purpose'' is controlled by
foreign criminal
intelligence. prosecutors
codify In re All
Matters, 218 F.
Supp. 2d 611
(FISC 2002)
................ ................ ................ Congress should
enact legislation
to give the
defense access to
FISA applications
and warrants,
subject to the
national security
protections in
the Classified
Information
Procedures Act
S. 1552 Sec. 9
(108th Cong.);
Sec. 2528 Sec.
401 (108th Cong.)
Extended duration of FISA secret Electronic Initial electronic Yes............... Congress should
searches and wiretaps. surveillance surveillance for extend the sunset
Patriot Act Sec. 207 orders for 90 6 months, of this provision
days, renewal for renewals for 1 and investigate
90 days; physical year; physical whether shorter
search orders search orders time periods to
last 45 days. last 90 days for ensure continued
U.S. persons and court oversight
6 months for are appropriate,
foreign visitors and should
and temporary increase
residents. appropriations to
Justice
Department and
FISC to provide
sufficient
resources to
process
applications.
FISA secret searches and All secret search For non-U.S. Yes............... Congress should
wiretaps without connection to and surveillance persons, FISA allow the FISC to
foreign power. orders required secret search or presume that a
Intelligence Reform Act of probable cause of surveillance non-U.S. person
2004 Sec. 6001 connection to allowed for involved in
foreign power. persons international
``involved in terrorism is
international acting for a
terrorism'' or foreign
``preparations government or
therefore'' organization, but
without any should not make
foreign power such a
connection. presumption
mandatory or
eliminate
altogether the
``foreign power''
requirement
Feinstein Amdt.
to S. 113 (108th
Cong.)
FISA roving wiretaps............ No roving wiretaps Now there are FISA Yes............... Congress should
Patriot Act Sec. 206 under FISA, but roving wiretaps, enact legislation
Intelligence Act for FY 2002 were available but unlike that would
Sec. 314 for criminal criminal roving require FISA
investigations. wiretaps, FISA roving wiretaps
roving wiretaps to observe same
do not need to requirements as
specify target criminal roving
and agents need wiretaps, i.e.,
not ascertain they must (1)
target is using specify a target,
that telephone. and (2) would
have to ascertain
target is using
that facility.
Safe Act Sec. 2
FISA surveillance of the Available only for Can be used for Yes............... Congress should
Internet, other communications facilities used more broadly, require rules
without probable cause with pen/ by agents of including for that define
trap authority. foreign power or U.S. persons, and content for the
Patriot Act Sec. 214 those involved in regardless of Internet more
international what facility is clearly and
terrorism being monitored. prohibit
activities. techniques that
acquire content
without probable
cause.
(no legislatove
language)
.................. .................. .................. Congress should
require
determination of
relevance to be
based on a
statement of
``specific and
articulable
facts,'' not on
mere
certification
SAFE Act Sec. 6
----------------------------------------------------------------------------------------------------------------
STATEMENT OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR AND CHIEF
LEGISLATIVE COUNSEL, WASHINGTON LEGISLATIVE OFFICE, AMERICAN
CIVIL LIBERTIES UNION
Mr. Nojeim. Thank you, Chairman Roberts.
Chairman Roberts. Please understand that virtually every
word of your very valuable testimony will be in the record and
feel free to summarize and/or do what you deem appropriate
under the circumstances.
Mr. Nojeim. Thank you very much.
It's a pleasure to testify before you today on behalf of
the ACLU about the intelligence-related provisions of the USA
PATRIOT Act. I come before you mindful that today marks the 10-
year anniversary of the Murrah Building in Oklahoma City. That
crime and the attacks of September 11, 2001, underscore a
sobering truth--terrorism has been with us for a long time; it
will likely be with us for generations to come. The decisions
that you make in the coming months about the PATRIOT Act will
be taken with an eye toward that reality.
The PATRIOT Act became law only 45 days after the September
11 attacks. Though it acted swiftly, Congress in its wisdom
included approximately 12 provisions of the Act that sunset on
December 31, 2005. I would focus your attention on just three
PATRIOT Act provisions. Two of them deal with records requests
under FISA and the other with roving wiretaps.
The PATRIOT Act expanded two existing sections of law that
allow the FBI to compel people in businesses to produce
documents. Section 505 of the PATRIOT Act expanded the National
Security Letter authority to allow the FBI to issue a letter
compelling Internet service providers, financial institutions
and consumer credit reporting agencies to produce records about
people who use or benefit from their services. This power was
later expanded to include records of car dealers, boat dealers,
jewelers, real estate professionals, pawn brokers, and others.
Section 215 of the PATRIOT Act expanded a different
provision of law to authorize the FBI to more easily obtain a
court order requiring a person or business to turn over
documents or things ``sought for'' an investigation to protect
against international terrorism or clandestine intelligence
activities.
In both cases, the PATRIOT Act removed from the law the
requirement that the records produced pertain to an agent of a
foreign power--that is, foreign countries, businesses, and
terrorist organizations. This significantly expanded law
enforcement access to records pertaining to Americans. In these
days of data mining, one cannot ignore this stark fact: under
these provisions the government can easily obtain records
pertaining to thousands of Americans who have nothing to do
with terrorism, so long as the records are sought for or are
allegedly relevant to one of these investigations.
Neither of these statutes signals the recipient of a letter
or order that the recipient can challenge in court. Both
statutes indicate that the recipient can tell no one that the
recipient has received the order or letter, and that includes
any attorney with whom they might want to consult. In common
parlance, the recipient is gagged, and under the statutory
language the gag stays in place forever.
We do not ask that you repeal either of these sections of
the law. Rather, we ask that you restore the agent of a foreign
power requirement and that you amend the statute to time-limit
the gag, exempt attorney-client communications from it, and
allow for court challenges. If these changes are made to the
NSL statute, they would satisfy the court that struck down that
statute as a violation of the First and the Fourth Amendment.
In addition, we ask that you conform the multi-point or
roving wiretap authority that was created in the PATRIOT Act
for intelligence wiretaps to the corresponding authority for
roving wiretaps that appears in the criminal code. Doing this
would entail borrowing from the criminal code the ascertainment
requirement that ensures that law enforcement agents listen in
only on the conversations to which the target is a party. It
also entails requiring the government to specify in its
application for a wiretap either identity of the person whose
phone or computer would be tapped or to specify the facility
that would be tapped.
In short, we're not asking that law enforcement tools be
taken away, rather that they be made subject to reasonable
checks and balances, such as meaningful judicial oversight and
appropriate disclosure to the public of the use of the power.
Congress could easily adopt all of the reforms that I have
mentioned and most of the reforms that I have mentioned in my
written testimony by enacting the Security and Freedom
Enhancement Act or SAFE Act, S. 737. This bipartisan
legislation, co-sponsored by Senators Craig and Durbin,
contains a series of carefully calibrated adjustments to the
PATRIOT Act that would go a long way toward bringing it more
into line with the Constitution and advancing the goal of
keeping America both safe and free.
Thank you.
Chairman Roberts. We thank you. Mr. Dempsey, please.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey, Executive Director,
Center for Democracy & Technology\1\
Mr. Chairman, Sen. Rockefeller, Members of the Committee, thank you
for the opportunity to testify at this important hearing. In CDT's
view, there are few if any provisions in the PATRIOT Act that are per
se unreasonable. We see not a single power in the Act that should
sunset. The question before us--and it is one of the most important
questions in a democratic society--is what checks and balances should
apply to those powers. In our view, the investigative powers of the
PATRIOT Act would be just as effective, maybe even more so, if subject
to some basic checks and balances--
---------------------------------------------------------------------------
\1\ The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Among our
priorities is preserving the balance between security and freedom after
9/11. CDT coordinates the Digital Privacy and Security Working Group
(DPSWG), a forum for computer, communications, and public interest
organizations, companies and associations interested in information
privacy and security issues.
---------------------------------------------------------------------------
particularized suspicion,
a minimal factual showing,
judicial approval,
eventual notice to targets in a wider range of
circumstances, and
more detailed unclassified reporting to Congress.
In particular, we urge the Committee to enhance the role of the
judiciary. We fully recognize that intelligence investigations must
sometimes proceed with speed and that they often require secrecy. But
in this age of cell phones, ubiquitous Internet access, encryption,
BlackBerries and other communications technologies, it seems
unnecessary to vest domestic intelligence agencies with extra-judicial
powers. FBI agents and others operating domestically in intelligence
matters--who have to seek supervisory approval for exercise of PATRIOT
Act powers in almost all cases anyhow--could electronically prepare
minimal fact-based applications for access to information, submit them
to judges electronically, and receive approval electronically,
promptly, efficiently, but with the crucial check provided by a neutral
and detached magistrate.
CDT supports the Security and Freedom Enhancement (SAFE) Act, a
narrowly tailored bipartisan bill that would revise several provisions
of the PATRIOT Act. It would retain all of the expanded authorities
created by the Act but place important limits on them. It would protect
the constitutional rights of American citizens while preserving the
powers law enforcement needs to fight terrorism.
PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS
AND OVERSIGHT
At the outset, let me stress some basic points on which I hope
there is widespread agreement:
Terrorism poses a grave and imminent threat to our nation.
There are people--almost certainly some in the United States--today
planning additional terrorist attacks, perhaps involving biological,
chemical or nuclear materials.
The government must have strong investigative authorities
to collect information to prevent terrorism. These authorities must
include the ability to conduct electronic surveillance, carry out
physical searches effectively, and obtain transactional records or
business records pertaining to suspected terrorists.
These authorities, however, must be guided by the Fourth
Amendment, and subject to Executive and judicial controls as well as
legislative oversight and a measure of public transparency.
SINCE 9/11, THERE HAVE BEEN EGREGIOUS AND COUNTERPRODUCTIVE ABUSES OF
CIVIL LIBERTIES AND HUMAN RIGHTS OUTSIDE THE PATRIOT ACT
Since 9/11, the Federal Government has engaged in serious abuses of
constitutional and human rights, some now documented in official
reports. The most egregious of these abuses have taken place outside of
the PATRIOT Act or any other Congressional authorization. These
include:
The torture at Abu Ghraib and other locations.
The detention of US citizens in military jails without
criminal charges.
The detention of foreign nationals in Guantanamo and other
locations, under what the executive branch claimed was unreviewable
authority, and the continuing detention of those individuals after the
Supreme Court rejected the Administration's claims.
The rendition of detainees to other governments known to
engage in torture.
Haphazard and prolonged post 9/11 detentions of foreign
nationals in the U.S., the physical abuse of some and the blanket
closing of deportation hearings.
Abuse of the material witness law to hold individuals in
jail without charges.
CONCERNS WITH THE PATRIOT ACT: INTELLIGENCE SEARCHES--BROADER SCOPE AND
GREATER SECRECY CALL FOR COMPENSATING CONTROLS
In the PATRIOT Act, not surprisingly given the pressures under
which that law was enacted and the lack of considered deliberation, the
pendulum swung too far, and Congress eliminated important checks and
balances that should now be restored in the interest of both freedom
and security. One of the most fundamental themes of the PATRIOT Act was
the elimination of checks and balances on intelligence access to
financial, communications and other records.
As this Committee well knows, the FBI operates under two sets of
authorities when investigating international terrorism: criminal and
foreign intelligence/counterintelligence. Over the past 25 years, a
series of intelligence authorities have grown up giving investigators
the ability to conduct electronic surveillance and obtain access to
stored records.
Constitutionally speaking, there are two concerns with national
security authorities:
The scope of intelligence investigations is broader than
criminal investigations. Intelligence investigations cover both legal
and illegal activities. In criminal investigations, the criminal code
provides an outer boundary, and a prosecutor is often involved to guide
and control the investigation. An intelligence investigation is driven
not by a desire to arrest and convict, but by a range of foreign policy
interests. The breadth of disclosure of information is greater,
including intelligence, military, diplomacy, policy development,
protective, immigration, and law enforcement.
Intelligence investigations require a greater degree of
secrecy than criminal investigations. In criminal cases, an important
protection is afforded by notice to the target and other affected
parties as the government collects information and the notice and right
to confront when a matter reaches trial. Under the intelligence rules,
persons whose records are accessed by the government are never provided
notice unless the evidence is introduced against them in court. While
recipients of grand jury subpoenas can publicly complain about
overbreadth and often can even notify the target, recipients of
intelligence disclosure orders are barred from disclosing their
existence.
The PATRIOT Act failed to include protections that can respond to
these difference and provide appropriate protection of Fourth Amendment
principles.
Particularized Suspicion and a Factual Basis for Disclosure Demands
In the PATRIOT Act, Sections 214 (relating to pen registers under
FISA), 215 (relating to travel records and other business records) and
505 (relating to National Security Letters for credit reports,
financial records and communications transactional data) all pose the
same set of issues. Prior to the PATRIOT Act, the FBI was able to
obtain access to certain key categories of information upon a showing
that the information pertained to a foreign power or an agent of a
foreign power:
Real time interception of transactional data concerning
electronic communications was available with a pen register or trap and
trace order issued by the FISA court.
Records regarding airline travel, vehicle rental, hotels
and motels and storage facilities were available with a court order
issued by the FISA court.
Financial records, credit reports, and stored
transactional records regarding telephone or Internet communications
were available with a National Security Letter issued by a senior FBI
official.
In all cases, prior to PATRIOT, these records were available upon a
certification or showing that there were ``specific and articulable
facts'' giving reason to believe that the person whose records were
being sought was a foreign power or an agent of a foreign power, or had
been in contact with a foreign power or its agent. The FBI complained
that this standard was too narrow. Rather than come up with a focused
standard, the PATRIOT Act eliminated both prongs of this standard: It
eliminated the particularity requirement; and it eliminated the
requirement that the FBI have any factual basis for its interest in
certain records.
FBI and DOJ descriptions of these changes in guidance to the field
and in statements to Congress suggest that the government does not
interpret them as going as far as they seem to on their face. The FBI
indicates that it still names particular subjects in its applications,
and both DOJ and FBI indicate that there is some factual basis for
every request.
The fact that records must be relevant to an open investigation is
not any real protection at all. Consider the following: there is
undoubtedly a properly authorized FCI investigation of al Qaeda (or
UBL). Under sections 214, 215 and 505, the FBI could get any records
from any entity by claiming that they were relevant to that
investigation. Even though 215 requires a court order, the statute
requires the judge to grant the governments request in whole or part so
long as the government makes the proper assertion--that the records are
sought for an existing investigation, however broad that investigation.
There is no requirement that the application or the court order or NSL
name the person or account for which information is sought.
Both the particularity requirement and the factual showing
requirement should be made explicit in statute, in order to prevent
overbroad or ill-focused searches and to provide clear guidance to the
field and the FISA court.
At the same time, the concept of a National Security Letter should
be revisited. in this age of cell phones, ubiquitous Internet access,
encryption, BlackBerries and other communications technologies, it
seems unnecessary to vest domestic intelligence agencies with extra-
judicial powers. FBI agents and others operating domestically in
intelligence matters--who have to seek supervisory approval for
exercise of PATRIOT Act powers in almost all cases anyhow--could
electronically prepare minimal fact-based applications for access to
information, submit them to judges electronically, and receive approval
electronically, promptly, efficiently, but with the crucial check
provided by a neutral and detached magistrate.
Notice
A second area in which the PATRIOT Act lacks adequate protections
is in the area of notice. Under the PATRIOT Act, as in the past,
intelligence authorities are exercised under a cloak of perpetual
secrecy. In the world of spy versus spy, surveillances could go on for
many years, the same techniques could be used in the same context for
decades, and known spies would be allowed to operate with no overt
action ever taken against them. To a certain extent, these secrecy
interests remain paramount in counter-terrorism investigations. But the
wall between intelligence and criminal has now been brought down, and
information collected in intelligence investigations is now being ever
more widely shared and used. The question of when and how individuals
are provided notice needs to be reexamined. Especially individuals
whose records were obtained by the government but who were later
determined not to be of any interest to the government should be told
of what happened to them.
In ordinary criminal investigations, the PATRIOT Act created what
might be called ``off the books surveillance.'' Section 212 authorizes
an ISP to disclose e-mail, stored voicemail, draft documents and other
stored information to law enforcement when government states that there
is an emergency involving a threat to life. Section 217 authorizes the
government to carry out real-time surveillance when an ISP, a
university, or another system operator authorizes the surveillance on
the grounds that there is a ``trespasser'' within the operator's
computer network. Under both sections 212 and 217:
There is never a report to a judge. (In contrast, under
both Title III and FISA, when electronic surveillance is carried out on
an emergency basis, an application must be filed after the fact.)
There is no time limit placed on the disclosures or
interceptions. (A Title III wiretap cannot continue for more than 30
days without new approval.)
There is never notice to the person whose communications
are intercepted or disclosed.
The interceptions and disclosures are not reported to
Congress.
DOJ, in its defense of Section 217 claims that the privacy of law-
abiding computer users is protected because only the communications of
the computer trespasser can be intercepted. But what if the system
operator is wrong? What if there is a legitimate emergency, but law
enforcement targets the wrong person. Under Sections 212 and 217, a
guilty person gets more notice than an innocent person--the guilty
person is told of the surveillance or disclosure but the innocent
person need never be notified. That should be rectified.
Congressional Oversight and Public Reporting
Currently, the Justice Department is required to report to Congress
on its use of some sections of the PATRIOT Act, such as its use of
Section 215, but it is not required statutorily to report on its use of
other sections. Although the Justice Department, under the pressure of
the sunsets and with considerable prodding from Congress, has
voluntarily reported some information on its use of other PATRIOT Act
powers, like delayed notice warrants under Section 213, routine and
more detailed reporting would increase both Congressional oversight and
public transparency. Congress should codify reporting requirements,
enabling Congress and the public to assess the efficacy of these
provisions and to gauge the likelihood of their misuse.
SPECIFIC PROVISIONS OF THE PATRIOT ACT
In this section, we will comment on specific provisions of the
PATRIOT Act.
Sneak and Peek Searches
Section 213, which does not sunset but nevertheless should be re-
examined, is a good idea gone too far. It is also a perfect example of
how the PATRIOT Act was used to expand government powers, without
suitable checks and balances, in areas having nothing to do with
terrorism. Finally, it illustrates how, when rhetoric is left behind,
it is possible to frame appropriate checks and balances for what, by
any definition, are some especially intrusive powers.
As a starting point, of course, in serious investigations of
international terrorists, the government should be able to act with
secrecy. But guess what proponents of Section 213 never mention? In
international terrorism investigations, even before the PATRIOT Act,
the government already had the authority to carry out secret searches.
The Foreign Intelligence Surveillance Act was amended in 1994 to allow
secret searches in intelligence investigations, including international
terrorism cases; before 1994, the Attorney General authorized secret
searches in intelligence investigations of terrorist groups without any
judicial scrutiny. And during the limited debate over the PATRIOT Act,
reasonable voices proposed that secret searches be statutorily
authorized in criminal investigations of terrorism.
As enacted, however, Section 213 was not limited to terrorism
cases. It would astound most Americans that government agents could
enter their homes while they are asleep or their places of business
while they are away and carry out a secret search or seizure and not
tell them until weeks or months later. It would especially astound them
that this authority is available for all Federal offenses, ranging from
weapons of mass destruction investigations to student loan cases. That
is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice
Department has admitted that it has used Section 213 sneak and peek
authority in nonviolent cases having nothing to do with terrorism.
These include, according to the Justice Department's October 24, 2003
letter to Senator Stevens, an investigation of judicial corruption,
where agents carried out a sneak and peek search of a judge's chambers,
a fraudulent checks case, and a health care fraud investigation, which
involved a sneak and peek of a home nursing care business.
Section 213 fails in its stated purpose of establishing a uniform
statutory standard applicable to sneak and peek searches throughout the
United States. For a number of years, under various standards, courts
had allowed delayed notice of sneak and peek searches. The term ``sneak
and peek,'' by the way, was not contrived by opponents of the PATRIOT
Act--before the PATRIOT Act, it was used by FBI agents, DOJ officials,
and judicial opinions. Rather than ``codifying existing case law under
a single national standard to streamline detective work,'' Section 213
confuses the law. Rather than trying to devise a standard suitable to
breaking and entering into homes and offices for delayed notice
searches, Congress, in the haste of the PATRIOT Act, merely
incorporated by reference a definition of ``adverse result'' adopted in
1986 for completely unrelated purposes, concerning access to e-mail
stored on the computer of an ISP. Under that standard, not only can
secret searches of homes and offices be allowed in cases that could
result in endangering the life of a person or destruction of evidence,
but also in any case that might involve ``intimidation of potential
witnesses'' or ``seriously jeopardizing an investigation'' or ``unduly
delaying a trial.'' These broad concepts offer little guidance to
judges and will bring about no national uniformity in sneak and peek
cases.
Section 213 also leaves judges guessing as to how long notice may
be delayed. The Second and Ninth Circuits had adopted, as a basic
presumption, a 7-day rule for the initial delay. Section 213 says that
notice may be delayed for ``a reasonable period.'' Does this mean that
lower courts in the Ninth Circuit and the Second Circuit no longer have
to adhere to the 7-day rule? At the least, it suggests that courts
outside those Circuits could make up their own rules. ``Reasonable
period'' affords judges considering sneak and peek sneak and peek
searches no uniform standard.
If, as Section 213 supporters claim, sneak and peek searches are a
``time-honored tool,'' and if courts ``around the country have been
issuing them for decades,'' as DOJ claims, why did the Justice
Department push so hard in the PATRIOT Act for a Section 213 applicable
to all cases? The answer, I believe, is that the sneak and peek concept
stands on shaky constitutional ground, and the Justice Department was
trying to bolster it with Congressional action--even action by a
Congress that thought it was voting on an antiterrorism bill, not a
general crimes bill.
The fact is, there is a constitutional problem with Section 213:
The sneak and peek cases rest on an interpretation of the Fourth
Amendment that is no longer valid. The major Circuit Court opinions
allowing sneak and peek searches date from the 1986, United States v.
Freitas, 800 F.2d 1451 (9th Cir.), and 1990, United States v. Villegas,
899 F.2d 1324 (2d Cir.). These cases were premised on the assumption
that notice was not an element of the Fourth Amendment. United States
v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1993) starts its discussion of
sneak and peek searches stating: ``No provision specifically requiring
notice of the execution of a search warrant is included in the Fourth
Amendment.'' Pangburn goes on to state ``The Fourth Amendment does not
deal with notice of any kind. . . .''
Yet in Wilson v. Arkansas, 514 U.S. 927 (1995), in a unanimous
opinion by Justice Thomas, the Supreme Court held that the knock and
notice requirement of common law was incorporated in the Fourth
Amendment as part of the constitutional inquiry into reasonableness.
Notice is part of the Fourth Amendment, the court held, directly
repudiating the premise of the sneak and peek cases. Wilson v. Arkansas
makes it clear that a search without notice is not always unreasonable,
but surely the case requires a different analysis of the issue than was
given it by those courts that assumed that notice was not a part of the
constitutional framework for searches at all. A much more carefully
crafted set of standards for sneak and peek searches, including both
stricter limits of the circumstances under which they can be approved
and a 7-day time limit, is called for.
Section 213's attempted codification of the sneak and peek
authority went too far. To fix it, Congress should leave the statutory
authority in place but add several limitations:
Congress should narrow the circumstances in which
notification may be delayed so that Section 213 does not apply to
virtually every search. Under Section 213, the government need only
show that providing notice would seriously jeopardize an investigation
or unduly delay a trial. This ``catch-all'' standard could apply in
almost every case and therefore is simply too broad for this uniquely
intrusive type of search. Congress should allow sneak and peek searches
only if giving notice would likely result in: danger to the life or
physical safety of an individual; flight from prosecution; destruction
of or tampering with evidence; or intimidation of potential witnesses.
Congress should require that any delay in notification not
extend for more than 7 days without additional judicial authorization.
Section 213 permits delay for a ``reasonable time'' period, which is
undefined in the statute. Pre-PATRIOT Act case law in the Ninth and
Second Circuits stated that 7 days was an appropriate time period.
Indeed, DOJ' s internal guidance recognizes that 7 days is the most
common period, but also suggests that it may seek much longer delays.
Congress should set a basic 7 day rule, while permitting the Justice
Department to obtain additional 7-day extensions of the delay if it can
continue to meet one of the requirements for authorizing delay in the
first instance.
Section 213 only requires a judge to find ``reasonable
cause'' to believe that an adverse result will happen if notice is not
delayed. The Supreme Court has allowed a limited exception to the
notice rule upon ``reasonable suspicion,'' by allowing police to enter
and provide notice as they were entering when they faced a life-
threatening situation in executing a warrant. Richards v. Wisconsin,
520 U.S. 385 (1997). If ``reasonable suspicion'' is the standard for
delaying notice by minutes, probable cause would be a more appropriate
standard when notice is delayed for days or weeks.
Finally, Congress should require the Justice Department to
continue to report on its use of the ``sneak and peek'' power. Congress
should codify a requirement that the Attorney General report the number
of requests for delayed notification, the number of those requests
granted or denied, the number of extensions requested, granted and
denied, and the prong of the statutory test used for each case, so that
Congress and the public can determine if this technique is being
narrowly applied.
Even with these changes, sneak and peek searches, especially of
homes, stand on shaky constitutional ground except in investigations of
the most serious crimes. Judicial caution is necessary. The reasonable
changes outlined above would leave the statutory authority in place but
bring it under more appropriate limitations and oversight.
Section 215--Business Records
As noted above, Section 215 amended the Foreign Intelligence
Surveillance Act to authorize the government to obtain a court order
from the FISA court or designated magistrates to seize ``any tangible
things (including books, records, papers, documents, and other items)''
that an FBI agent claims are ``sought for'' an authorized investigation
``to protect against international terrorism or clandestine
intelligence activities.'' The subject of the order need not be
suspected of any involvement in terrorism whatsoever; indeed, if the
statute is read literally, the order need not name any particular
person but may encompass entire collections of data related to many
individuals. The Justice Department often says that the order can be
issued only after a court determines that the records being sought are
``relevant'' to a terrorism investigation, but the PATRIOT Act
provision says only that the application must specify that the records
concerned are ``sought for'' an authorized investigation. And the judge
does not determine that the records are in fact ``sought for'' the
investigation--the judge only can determine whether the FBI agent has
said that they are sought for an investigation. The PATRIOT Act does
not require that applications must be under oath. It doesn't even
require that the application must be in writing. It doesn't require, as
for example the pen register law does, that the application must
indicate what agency is conducting the investigation. Section 505 of
the PATRIOT Act similarly expanded the government's power to obtain
telephone and e-mail transactional records, credit reports and
financial data with the use of a document called the National Security
Letter (NSL), which is issued by FBI officials without judicial
approval.
The Justice Department argues that Section 215 merely gives to
intelligence agents the same powers available in criminal cases, since
investigators in criminal cases can obtain anything with a subpoena
issued on a relevance standard. First of all, as noted, a criminal case
is at least cabined by the criminal code--something is relevant only if
it relates to the commission of a crime. But on the intelligence side,
the government need not be investigating crimes--at least for non-U.S.
persons, it can investigate purely legal activities by those suspected
of being agents of foreign powers.
There are other protections applicable to criminal subpoenas that
are not available under Section 215 and the NSLs. For one, third party
recipients of criminal subpoenas can notify the record subject, either
immediately or after a required delay. Section 215 and the NSLs
prohibit the recipient of a disclosure order from ever telling the
record subject, which means that the person whose privacy has been
invaded never has a chance to rectify any mistake or seek redress for
any abuse. Second, the protections of the criminal justice system
provide an opportunity for persons to assert their rights and protect
their privacy, but those adversarial processes are not available in
intelligence investigations that do not end up in criminal charges.
Use of FISA evidence in criminal cases without full due process
Before the PATRIOT Act, there was no legal barrier to using FISA
information in criminal cases. The wall between prosecutors and
intelligence officers, as it evolved over the years, was a secret
invention of the FISA court, the Department's Office of Intelligence
Policy and Review, and the FBI, with little basis in FISA itself. It
did not serve either civil liberties or national security interests.
The primary purpose standard did not have to be changed to promote
coordination and information sharing.
As a result of the PATRIOT Act and the decision of the FISA Review
Court, criminal investigators are now able to initiate and control FISA
surveillances. The number of FISA has gone up dramatically. The FISA
court now issues more surveillance orders in national security cases
than all the other Federal judges issue in all other criminal cases. In
the past, when FISA evidence has been introduced in criminal cases, it
has not been subject to the normal adversarial process. Unlike ordinary
criminal defendants in Title III cases, criminal defendants in FISA
cases have not gotten access to the affidavit serving as the basis for
the interception order. They have therefore been unable to meaningfully
challenge the basis for the search. Defendants have also been
constrained in getting access to any portions of the tapes other than
those introduced against them or meeting the government's strict
interpretation of what is exculpatory. If FISA evidence is to be used
more widely in criminal cases, and if criminal prosecutors are able to
initiate and control surveillances using the FISA standard, then those
surveillances should be subject to the normal criminal adversarial
process. Congress should make the use of FISA evidence in criminal
cases subject to the Classified Information Procedures Act. Congress
should also require more extensive public reporting on the use of FISA,
to allow better public oversight, more like the useful reports issued
for other criminal wiretap orders.
Definition of ``domestic terrorism''
The PATRIOT Act's definition of domestic terrorism is a looming
problem. Section 802 of the Act defines domestic terrorism as acts
dangerous to human life that violate any State or Federal criminal law
and appear to be intended to intimidate civilians or influence
government policy. 18 USC 2331(5). Under the PATRIOT Act, this
definition has three consequences--the definition is used as the basis
for:
Seizure of assets (Sec. 806)
Disclosure of educational records (Secs. 507 and 508)
Nationwide search warrants (Sec. 219)
The definition appears many more times in Patriot II, where it
essentially becomes an excuse for analysis and consideration. Congress
should either amend the definition or refrain from using it. It
essentially amounts as a transfer of discretion to the executive
branch, which can pick and choose what it will treat as terrorism, not
only in charging decisions but also in the selection of investigative
techniques and in the questioning of individuals.
SAFE ACT
CDT strongly supports that the Security and Freedom Enhancement
(SAFE) Act is a narrowly tailored bipartisan bill that would revise
several provisions of the USA PATRIOT Act. It would retain all of the
expanded authorities created by the PATRIOT Act but place important
limits on these authorities. It would protect the constitutional rights
of American citizens while preserving the powers law enforcement needs
to fight terrorism.
Section 2--FISA Roving Wiretaps (Section 206 of the PATRIOT Act)
The SAFE Act would retain the PATRIOT Act's authorization of roving
wiretaps and ``John Doe'' wiretaps under the Foreign Intelligence
Surveillance Act (FISA), but would eliminate ``John Doe'' roving
wiretaps, a sweeping power never before authorized by Congress. A
``John Doe'' roving wiretap does not identify the person or the phone
to be wiretapped. The SAFE Act would also require law enforcement to
ascertain the presence of the target of the wiretap before beginning
surveillance. This would protect innocent Americans from unnecessary
surveillance.
Section 3--``Sneak & Peek'' Searches (Section 213)
The SAFE Act would retain the PATRIOT Act's authorization of
delayed notification or ``sneak and peek'' searches when one of an
enumerated list of specific, compelling reasons to delay notice is
satisfied. However, it would eliminate the catch-all provision that
allows sneak and peek searches in any circumstances seriously
jeopardizing an investigation or unduly delaying a trial. The SAFE Act
would require notification of a covert search within 7 days, instead of
the undefined delay that is currently permitted by the PATRIOT Act. A
court could allow unlimited additional 21-day delays of notice in
specific, compelling circumstances.
Section 4--FISA Orders for Library and Other Personal Records (Section
215)
The SAFE Act would retain the PATRIOT Act's expansion of the FISA
records provision, which allowed the FBI to obtain ``any tangible
things'' from any entity. However, it would restore a standard of
individualized suspicion for obtaining a FISA order and create
procedural protections to prevent abuses. The government would be able
to obtain an order if they could show facts indicating a reason to
believe the tangible things sought relate to a suspected terrorist or
spy. As is required for grand jury subpoenas, the SAFE Act would give
the recipient of a FISA order the right to challenge the order, require
a showing by the government that a gag order is necessary, place a time
limit on the gag order (which could be extended by the court), and give
a recipient the right to challenge the gag order. The SAFE Act would
require notice to the target of a FISA order if the government seeks to
use the things obtained from the order in a subsequent proceeding, and
give the target an opportunity to challenge the use of those things.
Such notice and challenge provisions are required for other FISA
authorities (wiretaps, physical searches, pen registers, and trap and
trace devices).
Section 5--National Security Letters (Section 505)
The SAFE Act would restore a standard of individualized suspicion
for using an NSL, requiring that the government have reason to believe
the records sought relate to a suspected terrorist or spy: As is the
case for grand jury subpoenas, the SAFE Act would give the recipient of
an NSL the right to challenge the letter and the nondisclosure
requirement, and place a time limit on the nondisclosure requirement
(which could be extended by the court). As is the case for FISA
authorities, the SAFE Act would give notice to the target of an NSL if
the government seeks to use the records obtained from the NSL in a
subsequent proceeding, and give the target an opportunity to challenge
the use of those records.
Section 6--Pen Registers and Trap and Trace Devices (Section 216)
The SAFE Act would retain the PATRIOT Act's expansion of the pen/
trap authority to electronic communications. In recognition of the vast
amount of sensitive information that law enforcement can now access,
the SAFE Act would create modest safeguards allowing increased
Congressional, public, and judicial oversight of pen/trap usage. The
SAFE Act would require additional Congressional reporting, require
delayed notice to individuals who are targets of pen/traps (pen/trap
targets currently receive no notice, unlike the targets of wiretaps),
and slightly raise the burden of proof for obtaining pen/trap orders.
Under the current standard, the government need only to certify that
the information sought is relevant, a certification that a judge has no
power to question. Under the revised standard, the government would
have to show facts indicating a reason to believe that the information
sought is relevant.
Section 7--Domestic Terrorism Definition (Section 802)
The PATRIOT Act's overbroad definition of domestic terrorism could
include acts of civil disobedience by political organizations. While
civil disobedience is and should be illegal, it is not necessarily
terrorism. The SAFE Act would limit the qualifying offenses for
domestic terrorism to those that constitute a Federal crime of
terrorism, instead of any Federal or State crime, as is currently the
case.
Section 8--FISA Public Reporting
The PATRIOT Act made it much easier for law enforcement to use FISA
to conduct secret surveillance on American citizens regardless of
whether they are suspected of involvement in terrorism or espionage and
whether the primary purpose of the underlying investigation is
intelligence gathering. In 2003, the most recent year for which
statistics are available, the number of FISA wiretaps exceeded the
number of criminal wiretaps for the first time since FISA became law.
It is important for Congress and the American people to learn more
about how the FBI is using FISA since the passage of the PATRIOT Act.
Therefore, the SAFE Act would require increased public reporting on the
use of FISA.
CONCLUSION
In the debate over the PATRIOT Act, civil libertarians did not
argue that the government should be denied the tools it needs to
monitor terrorists' communications or otherwise carry out effective
investigations. Instead, privacy advocates urged that those powers be
focused and subject to clear standards and judicial review. The tragedy
of the response to September 11 is not that the government has been
given new powers--it is that those new powers have been granted without
standards or checks and balances.
Of course, the FBI should be able to carry out roving taps
during intelligence investigations of terrorism, just as it has long
been able to do in criminal investigations of terrorism. But the
PATRIOT Act standard for roving taps in intelligence cases lacks
important procedural protections applicable in criminal cases.
Of course, the law should clearly allow the government to
intercept transactional data about Internet communications (something
the government was doing before the PATRIOT Act anyhow). But the pen
register/trap and trace standard for both Internet communications and
telephones, under both the criminal wiretap law and under FISA, is so
low that judges are reduced to mere rubber stamps, with no authority to
even consider the factual basis for a surveillance application.
Of course, prosecutors should be allowed to use FISA
evidence in criminal cases (they did so on many occasions before the
PATRIOT Act) and to coordinate intelligence and criminal investigations
(there was no legal bar to doing so before the PATRIOT Act). But FISA
evidence in criminal cases should not be shielded from the adversarial
process (as it has been in every case to date).
We need limits on government surveillance and guidelines for the
use of information not merely to protect individual rights but to focus
government activity on those planning violence. The criminal standard
and the principle of particularized suspicion keep the government from
being diverted into investigations guided by politics, religion or
ethnicity. Meaningful judicial controls do not tie the government's
hands--they ensure that the guilty are identified and that the innocent
are promptly exonerated.
______
Appendix--Overview of PATRIOT Sunsets
Of over 150 provisions in the PATRIOT Act, only 16 provisions are
covered by the sunset. Some of those covered are uncontroversial, while
some of the most controversial provisions in the Act are not slated to
sunset. The sunset does not apply to pending investigations.
Here's what the sunset covers--bold indicates those that are
controversial in CDT's view--we have no objections to the others:
Sec. 201--certain terrorism crimes as wiretap predicates
Sec. 202--computer fraud as wiretap predicate
Sec. 203(b)--sharing criminal wiretap information w/intelligence
agencies
Sec. 204--technical clarification of no conflict between Title III
and FISA
Sec. 206--roving taps under FISA
Sec. 207--extending duration of FISA taps of non-us persons
Sec. 209--seizure of voice mail pursuant to warrant
Sec. 212--emergency disclosures of e-mail w/o a court order
Sec. 214-- lowering standard for pen registers and trap and trace
devices under FISA
Sec. 215-- access to business records under FISA (the ``library
records'' provision)
Sec. 217-- interception of computer trespasser communications w/o a
court order
Sec. 218--the ``significant purpose'' provision
Sec. 220--nationwide service of search warrant for electronic
evidence
Sec. 223--civil liability for unauthorized disclosures of wiretap
info
Sec. 224--the sunset provision itself
Sec. 225--immunity for compliance with FISA wiretap
A number of highly controversial PATRIOT provisions are not covered
by the sunset, and deserve to be reconsidered by Congress, including:
Sec 203(a)--sharing grand jury information
Sec. 213--sneak and peek searches
Sec. 216--pen registers for the Internet
Sec. 358--exceptions to the financial privacy laws
Sec. 505--``National Security Letter'' exceptions to privacy laws
Sec. 802--definition of domestic terrorism
STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Dempsey. Mr. Chairman, Vice Chairman Rockefeller,
Senators, good afternoon. Thank you for the opportunity to
testify at this important hearing.
Let me start out by stressing that, in the view of the
Center for Democracy and Technology, as a civil liberties
advocacy organization, we see few, if any, provisions in the
PATRIOT Act that are per se unjustified. We see not a single
power in the Act that needs to sunset or go away entirely.
However, there are serious and legitimate concerns with some of
the provisions. That is understandable, given the haste with
which the law was enacted.
In 2001, in response to some legitimate complaints of the
Administration that the prior rules for counterterrorism
investigations were unreasonable or were out of date or ill-
suited to the threat of terrorism, Congress adopted the PATRIOT
Act, but it really didn't come up with better rules. In the
anxiety of those weeks after
9/11, Congress eliminated the old rules but didn't replace them
with any new ones, giving the Executive branch too much
latitude, in some cases almost carte blanche.
The question before this Committee and before the Congress
between now and December is what checks and balances should
apply to these powers. As I will explain later, the bipartisan
SAFE Act introduced in the Senate offers a set of modest but
significant reforms that will leave all the PATRIOT Act powers
in place but add the checks and balances that were left behind
in October 2001.
Unless reasonable checks and balances are added, I think
there are some provisions of the PATRIOT Act that should
continue to be subject to a sunset, perhaps another 5 years,
until we can get those rules right. I think we have in front of
us an opportunity to adopt those checks and balances.
Now, what do I mean by ``checks and balances?'' Experience
shows that in both criminal and intelligence investigations
governmental powers are most effectively exercised and civil
liberties are best protected if the intrusive data-gathering
powers of the government are subject to certain principles.
First among these is particularized suspicion, by which I mean
that the government should focus its effort on individuals that
it has some reason to believe are involved in planning
terrorist activities or are members of a terrorist group or
have some connection with a terrorist group or have some
information that might lead to a terrorist group. This isn't
about the government waiting for the crime to occur. This is in
the context of preventive action, but to have some
particularized focus, some particularized suspicion.
Secondly, the factual basis that the government has to have
to collect information doesn't have to be very detailed. We're
not talking about anything close to probable cause. It can be
as little as a shared address or the fact that someone received
a phone call from or made a phone call to a suspected
terrorist. There has to be some minimum specificity based on
some documentable fact. This is what the FBI sometimes refers
to as the predicate.
Third, whenever feasible, intrusive data gathering or
surveillance should have the prior approval of a judicial
officer. I'll expand upon this a little bit more in a second.
There may be emergency exceptions. Under the wiretap law, under
FISA, there are emergency exceptions. By and large, the rule
for access to both stored records and real-time communications
should involve judicial approval.
Fourth, while secrecy is important and especially important
in intelligence investigations, as a general rule individuals
should eventually receive notice of what has happened to them,
when information has been collected about them, at least when
the information is used to make decisions about them, not in
the intelligence context but in the criminal justice context,
in the immigration context. This is the concept of notice.
Finally, of course, there needs to be congressional
oversight, which I know this Committee takes very, very
seriously, and the process that you are in the midst of now is
certainly part of that, and you are to be congratulated on
taking the care with looking at these laws. I also think there
could be and needs to be some greater public oversight and
accountability. I think it might actually to some extent
increase trust in what the government is doing to actually have
some more information about at least how often and to what
extent these authorities are being used.
We have the broader scope of intelligence investigations
that are not only focused on criminal activity, are not
cabined-in by the definitions of the criminal law, can clearly
be used to collect information about legal activities. They
don't lead up to that crucible of the trial, with the checks
and balances and the adversarial process that that affords. We
have the greater degree of secrecy and necessity. The question
is, what compensating controls can be adopted?
In considering specifically some of the investigative
techniques of the PATRIOT Act, I think that there are five
questions that you should ask. First of all, should the
government have access to the information at issue? In almost
every case, indeed I would say in every case covered by the
PATRIOT Act, I don't question that the government should have
the right to the information under certain circumstances.
Secondly, does the investigation require speed? Obviously,
yes, sometimes it does. Does it require secrecy? Usually, but
maybe not forever, but certainly secrecy. Saying that the
government needs the information, and it needs it quickly
sometimes and it has to operate within secrecy, doesn't answer
the final two questions.
Who should be the approving officer for the technique, and
what should be the standard of proof or the standard of
justification for access to certain information?
As I said, in our view, the judicial officer is very
important. In this age of cell phones and Blackberries and
encryption and almost ubiquitous Internet access, it seems
unnecessary to vest domestic intelligence agencies with
extrajudicial powers. FBI agents and others operating
domestically in intelligence matters, who have to seek
supervisory approval for exercise of PATRIOT Act authorities
anyhow, could electronically prepare a minimal fact-based
application, submit it electronically to judges, get the
approval electronically.
We allow search warrants to be obtained by telephone,
orally, the FBI agent on one end--in criminal cases--the judge
on the other end. The FBI agent can write it down by hand on
his end and just signify the judge's approval. That's
considered to be a sufficient warrant under the Fourth
Amendment. We can have the speed, with that neutral magistrate
in there asking, ``What is the factual basis for this? Explain
to me a little bit why you think this particular information is
relevant or necessary to an intelligence investigation.''
The mere fact that there is an investigation is not
sufficient, obviously, because we have some very broad
investigations. There's clearly an ongoing investigation of
Usama bin Ladin or UBL that's clearly a properly justified
investigation. The mere fact of the investigation is not
enough. Yet the PATRIOT Act says that the government can obtain
pen registers, business records, and the transactional data
available under National Security Letters just by saying,
either to a judge or to itself, ``We have an investigation and
the information is sought for that investigation.''
That really does not give the kind of focus and the kind of
minimal check and balance that is appropriate for intruding
upon privacy by conducting a pen register, accessing business
records, et cetera.
We have concerns under the legislation as well with the
roving tap authority. Clearly, there should be roving tap
authority in intelligence cases of terrorist groups, just as
there are criminal investigations of terrorist groups. As Mr.
Nojeim pointed out, in trying to carry over the criminal
concept of roving surveillance into the FISA--and they are
somewhat different statutes, of course, that use different
terminology--the roving tap concept was sort of pasted in,
almost sort of shoe-horned into FISA, and I think a mistake was
made in that process and some of the checks and balances were
left out, and some of that may have been unintentional but
certainly now is the time to go back and correct that. I would
be happy to discuss in more length what I have in mind there.
Sneak and peek searches has been another controversial
provision. This one is unrelated to intelligence
investigations. The sneak and peek authority has existed for a
number of years under FISA, so intelligence investigations have
always had the sneak and peek authority. We're talking here
about criminal investigations. The sneak and peek authority in
the PATRIOT Act is not limited to terrorism investigations. It
applies to all Federal criminal investigations.
The FBI used that to break into a judge's chambers about a
year ago, using the PATRIOT Act to break into a judge's
chambers and do a sneak and peek search. They went into an
office of a health care provider in a Medicare investigation,
sneak and peek. These are nonviolent crimes, and yet they were
using PATRIOT Act authority, again without, in our view,
adequate checks and balances.
Mr. Chairman, with that I will conclude. I'm happy to go
into greater depth on some of the individual provisions--the
use of FISA in criminal proceedings, et cetera. Thank you, Mr.
Chairman.
Chairman Roberts. Mr. Dempsey, we thank you for your
comprehensive statement. I am sure that some of those matters
will be taken up by the questions. Let me just say that this
open hearing is the first in a series of three that are
designed to educate Members as the Senate considers the repeal
of the sunset provisions and modifications to other
intelligence authorities.
On Thursday, the Committee will hold a closed hearing on
operational matters relating to the Act. Next Wednesday, we
will hear from the Attorney General and the Director of the FBI
and the Director of Central Intelligence.
Ms. MacDonald.
[The prepared statement of Ms. MacDonald follows:]
Prepared Statement of Heather MacDonald, Senior Fellow,
Manhattan Institute for Policy Research, New York, NY
Thank you, Mr. Chairman and members of the Committee. My name is
Heather Mac Donald. I am a senior fellow at the Manhattan Institute for
Policy Research, a think tank in New York City. I have written
extensively on homeland security for the Washington Post, the Wall
Street Journal, the Los Angeles Times, and City Journal, among other
publications. I appreciate the opportunity to testify today on this
important topic.
The most powerful weapon against terrorism is intelligence. The
United States is too big a country to rely on physical barriers against
attack; the most certain defense is advanced knowledge of terrorist
plans.
In recognition of this fact, Congress amended existing surveillance
powers after 9/11 to ready them for the terrorist challenge. The signal
achievement of these amendments, known as the Patriot Act, was to tear
down the regulatory ``wall'' that had prevented anti-terrorism
intelligence agents and anti-terrorism criminal agents from sharing
information. That wall was neither constitutionally nor statutorily
mandated, but its effect was dire: it torpedoed what was probably the
last chance to foil the 9/11 plot in August 2001. Thanks to the Patriot
Act, all members of the anti-terrorism community can now collaborate to
prevent the next tertoristrike before it happens.
Besides dismantling the wall, the Patriot Act made other necessary
changes to surveillance law: it extended to terrorism investigators
powers long enjoyed by criminal investigators, and it brought
surveillance law into the 21st century of cell phones and e-mail. Where
the act modestly expands the government's authority, it does so for one
reason only: to make sure that the government can gather enough
information to prevent terrorism, not just prosecute it after the fact.
Each modest expansion of government power in the Patriot Act is
accompanied by the most effective restraint in our constitutional
system: judicial review. The act carefully preserves the traditional
checks and balances that safeguard civil liberties; 4 years after its
enactment, after constant monitoring by the Justice Department's
Inspector General and a host of hostile advocacy groups, not a single
abuse of government power has been found or even alleged.
This record of restraint is not the picture of the act most often
presented in the media or by government critics, however. The Patriot
Act has been the target of the most successful disinformation campaign
in recent memory. From the day of its passage, law enforcement critics
have portrayed it as an unprecedented power grab by an administration
intent on trampling civil rights.
As lie after lie accumulated, the administration failed utterly to
respond. As a result, the public is wholly ignorant about what the law
actually does. Hundreds of city councils have passed resolutions
against the act; it is a safe bet that none of them know what is in it.
The Committee is to be congratulated for taking the time to get the
truth out.
Though the charges against the Patriot Act have been dazzling in
their number, they boil down to four main strategies. This afternoon I
would like to dissect those strategies, with particular reference to
the most controversial sections of the act: sections 215 and 213.
Discredit the anti-Patriot Act strategies in those contexts, and you
have the key for discrediting them in every other context.
STRATEGY #1: HIDE THE JUDGE
The most pervasive tactic used against the Patriot Act is to
conceal its judicial review provisions, as witnessed in the campaign
against section 215. Section 215 allows anti-terror investigators
access to business records in third party hands. The section may also
be called the librarian's hysteria provision. The American Library
Association has declared section 215 a ``present danger to the
constitutional rights and privacy of library users,'' though the
section says not a word about libraries. Such hyperbole is standard,
and completely unwarranted.
The section works as follows: Under Section 215, the FBI may ask
the Foreign Intelligence Surveillance Court for permission to seek
business records--the enrollment application of a Saudi national in an
American flight school, say--while investigating terrorism. The section
broadens the categories of institutions whose records the government
may seek, on the post-9/11 recognition that lawmakers cannot anticipate
what sorts of organizations terrorists may exploit. In the past, to
trace the steps of a Soviet spy, it may have been enough to get hotel
bills or storage-locker contracts (two of the four categories of
records covered in the previous section of the Foreign Intelligence
Surveillance Act that Section 215 amended); today, however, gumshoes
may find they need receipts from scuba-diving schools or farm-supply
stores to piece together a plot to blow up the Golden Gate Bridge.
Section 215 removed the previous requirement in FISA that the
records concern an ``agent of a foreign power,'' since the scope of an
anti-terror investigation is hard to predict in advance. An unwitting
bystander may have purchased fertilizer for a terrorist posing as an
aspiring farmer; finding out whether and how much fertilizer was
purchased may be an essential link in the investigative chain.
These commonsensical reforms of existing investigative power have
called forth a crescendo of hysteria. The ACLU warns that with section
215, ``the FBI could spy on a person because they don't like the books
she reads, or because they don't like the websites she visits. They
could spy on her because she wrote a letter to the editor that
criticized government policy.'' Librarians, certain that the section is
all about them, are scaring library users with signs warning that the
government may spy on their reading habits.
The force of these charges rests on the strategy of hiding the
judge. Critics of section 215 conceal the fact that any request for
items under the section requires judicial approval. An FBI agent cannot
simply walk into a flight school or a library and demand records. The
bureau must first convince the Foreign Intelligence Surveillance Court
that the documents are relevant to protecting against international
terrorism. The chance that the FISA court will approve a 215 order
because the FBI ``doesn't like the books [a person] reads . . . or
because she wrote a letter to the editor that criticized government
policy'' is zero. If the bureau can show, on the other hand, that
someone using a library's computers was seen with other terror suspects
in Lahore, Pakistan, and has traveled regularly to Afghanistan under a
false passport, then the court may well grant an order to get the
library's Internet logs. As Andrew McCarthy has pointed out, literature
evidence was a staple of terrorism prosecutions throughout the 1990's.
Terrorists read bomb manuals, and often leave fingerprints on pages
spelling out explosive recipes that match the forensics of particular
bombings (like the 1993 attack on the World Trade Center).
Before the FBI can even approach the FISA court, agents must have
gone through multiple levels of bureaucratic review just to open an
anti-terror investigation. And to get to the court itself, intelligence
agents must first persuade the Justice Department's Office of
Intelligence and Policy Review that a section 215 order is warranted, a
process of persuasion that traditionally has taken months of vetting
and voluminous documentation.
STRATEGY #2: INVENT NEW RIGHTS
Besides concealing judicial review requirements, anti-Patriot Act
demagogues also invent new rights. A running theme of the campaign
against section 215 is that it violates the Fourth Amendment right to
privacy. But there is no Fourth Amendment privacy right in records or
other items disclosed to third parties. A credit-card user, for
example, reveals his purchases to the seller and to the credit-card
company. He therefore has no privacy expectations in the record of
those purchases that the Fourth Amendment would protect. As a result,
the government, whether in a criminal case or a terror investigation,
may seek his credit-card receipts without a warrant or ``probable
cause'' to believe that a crime has been or is about to be committed.
Despite librarians' fervent belief to the contrary, this analysis
applies equally to library patrons' book borrowing or Internet use. The
government may obtain those records without violating anyone's Fourth
Amendment rights, because the patron has already revealed his borrowing
and web browsing to library staff, other readers (in the days of
handwritten book checkout cards), and Internet service providers. It is
worth noting, however, that after all the furor raised about library
users' privacy rights, section 215 has not once been used to obtain
library or book store records.
It is the lack of a Fourth Amendment privacy interest in third
party records that has allowed prosecutors for decades to seek business
and library records without any judicial review whatsoever. Section
215, by requiring judicial review, is far more protective of privacy
than longstanding subpoena power in ordinary criminal investigations.
Patriot critics have provided no evidence that the subpoena power has
been abused to spy on Americans' reading habits; there is no reason to
believe that section 215 will be any more susceptible to abuse.
Recipients of a section 215 production order may challenge the
order in court, as Attorney General Alberto Gonzales recently
testified, but they may not disclose the order in public. This is
perfectly appropriate. Pre-emptive terror investigations cannot be
conducted in the news media. The government would seek a terror
suspect's airplane itineraries, for example, not in order to prosecute
a hijacking after it happens, but to pre-empt a hijacking before the
fact. The battleground is not the courtroom but the world beyond, where
speed and secrecy can mean life or death.
STRATEGY #3: CONCEAL LEGAL PRECEDENT
Attacks on the other most controversial section of the Patriot Act,
section 213, illustrate the key ruse of concealing the act's legal
precedents. Section 213 allows the government to delay notice of a
search, something criminal investigators have been allowed to do for
decades.
Say the FBI wants to plumb Mohammad Atta's hard drive for evidence
of a nascent terror attack. If a Federal agent shows up at his door and
says: ``Mr. Atta, we have a search warrant for your hard drive, which
we suspect contains information about the structure and purpose of your
cell,'' Atta will tell his cronies back in Hamburg and Afghanistan:
``They're on to us; destroy your files--and the infidel who sold us
out.'' The government's ability to plot out that branch of Al Qaeda is
finished.
To avoid torpedoing pre-emptive investigations, Section 213 lets
the government ask a judge for permission to delay notice of a search.
The judge can grant the request only if he finds ``reasonable cause''
to believe that notice would result in death or physical harm to an
individual, flight from prosecution, evidence tampering, witness
intimidation, or other serious jeopardy to an investigation. In the
case of Mohammad Atta's hard drive, the judge will likely allow a
delay, since notice could seriously jeopardize the investigation, and
would likely result in evidence tampering or witness intimidation.
The government can delay notifying the subject only for a
``reasonable'' period of time; eventually officials must tell Atta that
they inspected his hard drive.
Section 213 carefully balances traditional expectations of notice
and the imperatives of pre-emptive terror and crime investigations.
That's not how left- and right-wing libertarians have portrayed it,
however. They present Section 213, which they have dubbed ``sneak-and-
peek,'' as one of the most outrageous new powers seized by former
Attorney General John Ashcroft. The ACLU's fund-raising pitches warn:
``Now, the government can secretly enter your home while
you're away . . . rifle through your personal belongings . . .
download your computer files . . . and seize any items at will.
. . . And, because of the Patriot Act, you may never know what
the government has done.''
Notice the ACLU's ``Now.'' Like every anti-213 crusader, the ACLU
implies that section 213 is a radical new power. This charge is a rank
fabrication. For decades, Federal courts have allowed investigators to
delay notice of a search in drug cases, organized crime, and child
pornography, for the same reasons as in section 213. Indeed, the
ability to delay notice of a search is an almost inevitable concomitant
of investigations that seek to stop a crime before it happens. But the
lack of precise uniformity in the court rulings on delayed notice
slowed down complex national terror cases. Section 213 codified
existing case law under a single national standard to streamline
detective work; it did not create new authority regarding searches.
Those critics who believe that the target of a search should always be
notified prior to the search, regardless of the risks, should have
raised their complaints decades ago--to the Supreme Court and the many
other courts who have recognized the necessity of a delay option.
Critics of Section 213 raise the spectre of widespread surveillance
abuse should the government be allowed to delay notice. FBI agents will
be rummaging around the effects of law-abiding citizens on mere whim,
even stealing from them, allege the anti-Patriot propagandists. But the
government has had the delayed notice power for decades, and the anti-
Patriot demagogues have not brought forward a single case of abuse
under delayed notice case law. Their argument against Section 213
remains purely speculative: It could be abused. But there's no need to
speculate; the historical record refutes the claim.
Moreover, such wild charges against Section 213 ``hide the judge.''
It is a Federal judge who decides whether a delay is reasonable, not
law enforcement officials. And before a government agent can even seek
to delay notice of a search, he must already have proven to a judge
that he has probable cause to conduct the search in the first place.
This is hardly a recipe for lawless executive behavior--unless the
anti-Patriot forces are also alleging that the Federal judiciary is
determined to violate citizens rights. If that's what they mean, they
should come out and say it.
In fact, the recent history of government intelligence-gathering
belies the notion that any government surveillance power sets us on a
slippery slope to tyranny. There is a slippery-slope problem in terror
investigations--but it runs the other way. Since the 1970's,
libertarians of all political stripes have piled restriction after
restriction on intelligence-gathering, even preventing two anti-terror
FBI agents in the same office from collaborating on a case if one was
an ``intelligence'' investigator and the other a ``criminal''
investigator. By the late 1990's, the bureau worried more about
avoiding a pseudo-civil liberties scandal than about preventing a
terror attack. No one demanding the ever-more Byzantine protections
against hypothetical abuse asked whether they were exacting a cost in
public safety. We know now that they were.
The libertarian certainty about looming government abuse is a
healthy instinct; it animates the Constitution. But critics of the
Patriot Act and other anti-terror authorities ignore the sea change in
law enforcement culture over the last several decades. For privacy
fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously
surveilling political activists with no check on its power. That FBI is
dead and gone. In its place arose a risk-averse and overwhelmingly law-
abiding Bureau, that has internalized the norms of restraint and
respect for privacy.
This respect for the law now characterizes intelligence agencies
across the board. Lieutenant General Michael V. Hayden, the nominee for
Principal Deputy Director of National Intelligence, told this committee
last week that the challenge for supervisors in the National Security
Agency was persuading analysts to use all of their legal powers, not to
pull analysts back from an abuse of those powers.
It is because of this sea-change in law enforcement culture that
Patriot Act critics cannot point to a single abuse of the act over the
last 4 years, and why they are always left to argue in the
hypothetical.
STRATEGY #4: REJECT SECRECY
A subtext of many Patriot Act critiques is a refusal to grant any
legitimacy to government secrecy. Recipients of document production
orders in terror investigations--whether Section 215 orders or national
security letters under the 1986 Electronic Communications Privacy Act--
should be able to publicize the government's request, say the critics;
targets of searches should be notified at the time of the search. Time
and again, law enforcement critics disparage the Foreign Intelligence
Surveillance Court, because its proceedings are closed to the public.
The ACLU, for example, opposes the roving wiretap authority for
terrorism investigations in the Patriot Act (Section 206), even though
criminal investigators have long had the roving wiretap option, because
Section 206 wiretaps ``are authorized secretly without a showing of
probable cause of crime.'' (Section 206 requests must demonstrate
probable cause that the wiretap target is an agent of a foreign power
and that he will be using the tapped communications devices.)
This transparent approach may satisfy those on the left and right
who believe that the American people have no greater enemy than their
own government, but it fails to answer the major question: how would it
possibly be effective in protecting the country? The Patriot Act
critics fail to grasp the distinction between the prosecution of an
already committed crime, for which probable cause and publicity
requirements were crafted, and the effort to pre-empt a catastrophic
attack on American soil before it happens. For pre-emptive
investigations, secrecy is of the essence. Opponents of the Patriot Act
have never explained how they think the government can track down the
web of Islamist activity in public.
These four strategies, in various combinations--hide the judge,
invent new rights, conceal legal precedent, and reject secrecy--lie
behind nearly all of the Patriot Act attacks. The crusade against
Section 214, for example, which allows the government to record the
numbers dialed from a phone if relevant to a terrorism investigation
(the so-called pen register power), uses all four strategies. (A
related section, Section 216, extends the longstanding rules on pen
registers, to the 21st century technologies of e-mail. Section 216
allows the government to capture only an e-mail's routing and
addressing information, not its content.)
Section 214 merely allows the agents investigating a terrorism case
the same power that criminal investigators have. But the Electronic
Frontier Foundation calls the section ``a serious threat to privacy.''
This charge rests on inventing new rights. In fact, pen registers
threaten no privacy rigths, as the Supreme Court has held, because
there is no legitimate expectation of privacy in the numbers dialed
from a phone, which are recorded already by telephone companies. Even
though judicial authorization for a pen register is not
constitutionally required, section 214 nevertheless mandates that the
government obtain an order from the FISA court for their use. EFF
dismisses the value of the court, however, because it ``operates in
total secrecy.''
In conclusion, the Patriot Act is a balanced updating of
surveillance authority in light of the new reality of catastrophic
terrorism. It corrects anachronisms in law enforcement powers, whereby
health care fraud investigators, for example, enjoyed greater ability
to gather evidence than Al Qaeda intelligence squads. It created no
novel powers, but built on existing authorities within the context of
constitutional checks and balances. It protects civil liberties while
making sure that intelligence analysts can get the information they
need to protect the country. The law should be re-enacted.
STATEMENT OF HEATHER MacDONALD, SENIOR FELLOW, MANHATTAN
INSTITUTE FOR POLICY RESEARCH
Ms. MacDonald. Mr. Chairman, thank you very much. I'm
honored to be here today and I hope both you and the Vice
Chairman will eventually share your wonderful opening
statements with us. I would look forward to reading them.
The PATRIOT Act has been subject to the most successful
misinformation campaign in recent memory. From the day of its
passage it was portrayed as an unprincipled power grab by an
administration intent on trampling civil rights. As I've
debated the Act across the country, I've been amazed by the
universal ignorance about what the Act actually contains. I
applaud the Committee for taking the time to finally get the
facts out.
The PATRIOT Act recognizes the fundamental truth about
terrorism. Our only weapon against it is intelligence.
Accordingly, Congress, in passing the Act, amended existing
surveillance powers to ready them for the terrorist challenge.
Its most important contribution was tearing down the wall that
prevented information-sharing among all terror investigators.
Today, thanks to Congress, all members of the anti-terror
community can collaborate to try to prevent the next strike
before it happens.
The PATRIOT Act made other necessary changes to
surveillance law as well. It extended to terrorism
investigators powers long enjoyed by criminal investigators,
and it brought our laws into the 21st century of cell phones
and e-mail. Each of those changes was accompanied by the most
powerful restraint we have in our Constitution, judicial
review. The Act carefully preserves traditional checks and
balances that safeguard civil liberties.
For that reason, after 4 years of constant review by the
Justice Department's Inspector General and a host of hostile
advocacy groups, not a single abuse of power has been found or
even alleged.
Now I've observed four rhetorical strategies used to
discredit the Act. I call them hide the judge, invent new
rights, conceal legal precedents and oppose secrecy. I want to
review these strategies
in the context of the two most controversial provisions of the
PATRIOT Act--section 215, the business records provision, and
213, delayed notice.
215 allows the government to get records in third party
hands for terrorist investigations. It's been attacked as a
massive violation of free speech. It's the librarians' hysteria
provision. The librians are all convinced that the section is
all about them, even though the Act doesn't mention libraries.
What you never hear in the attacks on 215 is that the
government cannot get any records without prior approval of the
FISA Court. These are Article III judges who have pledged to
protect our civil rights. They are not going to approve a
search of somebody's records simply because the FBI doesn't
like your reading habits, as the ACLU has alleged.
It's also been blasted as a violation of Fourth Amendment
privacy rights. Now we're getting into my second strategy,
which is to invent new rights. Courts have long held there is
no Fourth Amendment privacy rights in records held by third
parties. For that reason, prosecutors or grand juries--your
fellow citizens--can get those same records without any
judicial review whatsoever. Section 215 is actually more
protective of rights than the criminal powers that pre-existed
it.
Now the furor over section 213, the delayed notice
provision, illustrates my third rhetorical strategy, which is
concealing legal precedent. 213 allows the government to delay
notice of a search--delay, not permanently put it off--if
notice would have an adverse result such as witness
intimidation, evidence tampering or jeopardizing an
investigation.
This has been portrayed by the ACLU and other groups as a
radical new power that's going to unleash government tyranny.
The gall of this claim, frankly, astounds me, because 213
merely codifies two decades of existing judicial precedent. If
delayed notice was the threat that its critics have made it out
to be, we would have already heard about abuses that such a
power leads to.
As with every other provision of the Act, the critics have
not been able to bring forth a single example of abuse over the
last 20 years of the delayed notice authority.
213 attacks also take advantage of the hide the judge
strategy. You'll never hear that in order to even delay notice
of a search first you need to go through your traditional
probable cause hearing to justify a warrant and you need to
persuade the judge that there is a necessity to delay notice.
Ultimately what drives much of the criticism is a deep
suspicion of government secrecy, the fourth strategy--deny the
need for secrecy. I constantly hear the FISA Court disparaged
as a mere rubber stamp because its proceedings are closed to
the public. Opponents of 213 and other provisions apparently
believe that if the government is investigating Mohammad Atta,
for example, he should be notified in advance that the
government wants to search his hard drive. This line of attack
shows a complete obliviousness to the fact that what we're
doing here is not a criminal investigation after the fact but
we're trying to pre-empt a terrorist attack before it happens.
Speed and secrecy are of the essence in preventing an attack.
In conclusion, the PATRIOT Act is balanced. It's a
reasonable response to the new threat of catastrophic
terrorism. It has not led to a single abuse of civil rights.
And it should be renewed.
Thank you very much for your attention.
Chairman Roberts. Ms. MacDonald, thank you very much for
your statement.
Members will have 5 minutes in the first round and we will
go to a second round if necessary.
I have a question in reference to section 218 and
``significant purpose.'' I think everybody seems to agree with
the Foreign Intelligence Surveillance Court review that the
``significant purpose'' certification standard was not really
needed to tear down the information-sharing walls--and that's
my word--created by the Department of Justice and adopted by
the Foreign Intelligence Surveillance Court.
Nonetheless, the provision was the catalyst for policy
changes that have greatly improved the FBI's ability to consult
with prosecutors in national security investigations and share
information both within the FBI and among other members of the
intelligence community.
Now, Mr. Nojeim, as I read your recommendations, it appears
that you want to--this are my words, probably not your
description--rebuild the walls between the FBI and national
security investigators and prosecutors and restore the Foreign
Intelligence Surveillance Court, what I think is a
misinterpretation of the law. Why do you think it's a bad idea
for the FBI agents conducting national security investigations
to be able to consult with prosecutors to the same extent as
the FBI agents who are conducting the domestic criminal
investigation? How is it an end run around the Fourth Amendment
to use FISA to pursue a terrorist group like the al-Qa'ida or
spies like Robert Hansen?
Mr. Nojeim. I never said in my testimony that they
shouldn't be allowed to consult. What I did say was that the
risk to the Fourth Amendment is this: FBI agents believe that
such-and-such a person has committed a terrible crime. They
want to search the person's home and they want to wiretap the
person to get evidence of that crime, and to put him behind
bars.
Normally they would have to go in front of a judge and show
probable cause of crime. Under the ``significant purpose''
test, if they also have an intelligence rationale they no
longer have to do that. Eventhough they are looking for
evidence of a crime, they never have to show probable cause of
crime because they can go around that requirement, search the
home or eavesdrop on the telephone conversation if they meet
the intelligence rationale under the PATRIOT Act and that
intelligence gathering is a significant purpose of the
surveillance.
There is a problem. We have to admit that there is a
problem about going around the Fourth Amendment. The issue is
how do we deal with that problem. We suggest three things. The
first I hope is easy. It's increased public reporting. We're
not asking for the FBI to disclose sources and methods of
intelligence gathering. Even the raw numbers of searches that
involve the use of this power is not disclosed. Even whether
the person who is being surveilled is a U.S. person, a citizen,
or a lawful permanent resident, that's not disclosed either. So
disclosure is one thing that needs to happen.
Another thing that needs to happen----
Chairman Roberts. If you can do the two real quickly, I've
got a yellow light and I want to turn to Ms. MacDonald.
Mr. Nojeim. Another thing that needs to happen is making it
so that the person who is accused of a crime based on that
information that's gathered in that intelligence surveillance
can get access to the application that was used to gather that
information. There's a ready process under the Classified
Information Procedures Act that could be grafted onto the
statute to make it work better.
Ms. MacDonald. Can I just respond?
Chairman Roberts. Ms. MacDonald.
Ms. MacDonald. Mary Jo White, who before 9/11 was the most
seasoned al-Qa'ida prosecutor, told me that there was no
greater barrier to fighting terrorism than the wall. She said
it was something that they beat their heads against all the
time. The idea that the process of going before the FISA Court
is some flippant, easy way to have a run around the Fourth
Amendment is absurd.
You need massive clearance within the FBI. Then you have to
persuade the Office of Intelligence and Policy Review to bring
your case before the FISA Court. I believe it was the Senate
Select Committee itself that, several years before 9/11, was
extremely concerned with the hurdles that were being placed by
OIPR on FISA requests from the field.
I think we also forget that there has been a massive sea
change in law enforcement culture. For the civil liberties
advocates, it's always 1968. We always have J. Edgar Hoover
trampling civil rights. In fact, let's be honest. Law
enforcement, the FBI, has internalized norms of restraint. As
General Hayden told you last week, his challenge within the NSA
was to try and persuade his agents to use their powers, not to
pull them back from an abuse of power.
The FISA process is basically, as the first head of OIPR,
Mr. Bass, Kenneth Bass, said, it's basically a probable cause
warrant.
Chairman Roberts. Senator Rockefeller. Thank you, Ms.
MacDonald.
Vice Chairman Rockefeller. Thank you, Mr. Chairman.
Perhaps I could ask this question of each of you and then
have you rebut each other, all in 5 minutes. The liveliest part
of this controversy is what we've just been talking about, and
that's 215 on access to records. It's about the librarians,
named, unnamed. Booksellers have been concerned about it. It's
not limited to libraries and books.
Now we have read and we have heard your separate arguments
about that section. It would be helpful to each of us to hear
those arguments side by side. Would you each take a minute to
state your main point about section 215 and then a half minute
to rebut what others say about that--a side-by-side approach.
Ms. MacDonald. 215 gives the government access to business
records that a criminal prosecutor already had access to for
the mere after-the-fact investigation of a crime. This allows
terrorism investigators to have access to those same records.
It requires FISA Court approval. The fact that it removed the
four narrow categories merely acknowledges the fact that we
cannot predict the next terror attack.
Who would have known that it would have been nice to have
had flight school records before 9/11? Under 215 the government
can get flight school records and it's not confined to storage
lockers.
Mr. Nojeim. Prior to the PATRIOT Act and after the PATRIOT
Act the government had the power to, when it was investigating
a crime, get a criminal subpoena. It could do that for
terrorism crimes; it could do that for other crimes. It's
inaccurate to imply that it couldn't do it for terrorism
crimes.
What we would like to see on section 215 is an increase in
the standard of review. In particular, the notion that when the
records are ``sought for'' an investigation is a very, very low
standard. In addition, we suggest that these records requests
be limited to records that pertain to an agent of a foreign
power. We say that we want to restore the ``agent of a foreign
power'' standard, and again this has nothing to do with
information-sharing, which we do not oppose, when we say
restore the ``agent of a foreign power'' standard, we say that
because it protects records about people who have nothing to do
with terrorism, and they are mostly Americans.
Vice Chairman Rockefeller. Mr. Dempsey.
Mr. Dempsey. Senators, as I said in my opening remarks,
there's not a category of records that I can think of that the
FBI shouldn't have access to in intelligence investigations.
The expansion of 215 from some limited categories of records to
any records, including library records, was appropriate.
Libraries aren't really the issue, as we all know, and if there
is something at a library that's valid and useful, the
government should have access to that as well.
The question is, shouldn't there be some factual basis for
the government's request. I think the one-to-one comparison
between the criminal side, where there are lots and lots of
checks and balances all the way to right to counsel and the
adversarial process, you get a subpoena, you can scream bloody
murder about it, but these are secret. We have to have
something compensating for that.
The judge right now is a rubber stamp. If the government
says we want them and signs a piece of paper, the judge has to
approve it and does approve it, and there's----
Vice Chairman Rockefeller. Do you disagree with that, Ms.
MacDonald?
Ms. MacDonald. I disagree. The language in 215 is identical
to the pre-PATRIOT language on the standard of review. Under
that standard pre-PATRIOT, there was still the months-long
vetting on OIPR. In fact, there is basically, in practice, a
factual predicate. That certification language is no different.
Either there was the same problem pre-PATRIOT and we didn't
know about it, or it's not a problem at all.
As for restoring the ``agent of a foreign power'' standard,
I think that would be a great mistake, for the same reason that
I mentioned why we're expanding the documents. We can't predict
in advance what the contours of a terror investigation are
going to be. Somebody may have unwittingly bought fertilizer
for a suspected terrorist. Under the agent of a foreign power
standard, you're not going to be able to get those records of a
farm supply store because it's not his records that you're
looking for. It's a third party that's bought them.
Finally, again there's no Fourth Amendment interest in
records in third party hands. A prosecutor can already get
them. They are no more available under the PATRIOT Act than
they were before the PATRIOT Act.
Vice Chairman Rockefeller. My time is up, Mr. Nojeim, but I
will come back to you on the second round because I excluded
you and I didn't mean to.
Mr. Dempsey. Senator, could I have just one quick
clarification?
Vice Chairman Rockefeller. No, because we're being very
strict about time. We will have a second round.
Mr. Dempsey. Of course.
Chairman Roberts. See, I was going to grant that, but this
man is just an absolute tyrant with time, as you can see.
[Laughter.]
Chairman Roberts. Actually, he's a heavy-handed despot, but
I'm not going to get into that any further.
Senator Lott.
Senator Lott. Thank you, Mr. Chairman. Thank you for your
restraint that you've been exercising throughout this hearing.
I thank the panel for being here.
I must say to you, Ms. MacDonald, how impressed I am with
your credentials and your resume and your testimony here today.
I'm glad to hear somebody take the position that I agree with
very strongly.
The PATRIOT Act is coming up for reauthorization. We need
to listen to complaints. We need to review how it has worked. I
found it completely telling when you note, for instance, after
constant monitoring by the Justice Department Inspector General
and all kind of hostile advocacy groups horrified at what might
happen, not a single abuse has occurred or been seriously
alleged.
That is what you're saying.
Ms. MacDonald. That is what I'm saying. We've heard none
today either. It's not just under the PATRIOT Act. Again, the
most interesting issue for me is the delayed notice provision.
We've had 20 years of delayed notice power that is now causing
the public to fear that the FBI's going to be rummaging around
their underwear drawer and not a single abuse has occurred for
the last 20 years.
Again, I think what this speaks to is the sea change in law
enforcement culture and the fact that the checks and balances
that exist before the PATRIOT Act and certainly exist after the
PATRIOT Act are working.
Senator Lott. Let me ask you to do this, then. As we look
at this Act, let's not just look at some of the complaints
about it. Let's look at are there some ways that maybe we could
strengthen it even further, that would be helpful in trying to
provide additional surveillance or investigative authorities
that might help us to combat terrorism.
Have you thought about that?
Ms. MacDonald. I'm not going to take that on, Mr. Lott.
It's hard enough to defend what exists. I know that the FBI has
been asking for administrative subpoena power. I'm basically
agnostic on that.
Senator Lott. Well, with your presentation and with your
credentials, I hope you'll meditate about that and think about
it and see how maybe we can make it even better by making it
stronger in some areas where maybe there are some weaknesses.
Ms. MacDonald. I would say probably what would be more
important is the political branches sending a message to law
enforcement that they will be supported, if they are acting in
good faith, that they don't need to worry about the
hypothetical trumping up of civil liberties concerns, that the
government, people like yourself, will support them in the full
exercise of their power.
Senator Lott. You know, you cannot be agnostic about
privacy issues and protecting individual citizens' privacy
rights. My question is, I guess, are there sufficient
safeguards in this Act as it now exists?
Ms. MacDonald. We have no stronger safeguard in our
Constitutional system than judicial review. The FISA Court
operates in secret, that's true, as it must. There is simply no
way that you can conduct a pre-emptive terror investigation in
public. You cannot have C-SPAN and CNN covering the proceedings
before the FISA court and think that we're going to be able to
beat this enemy.
There is judicial review throughout the PATRIOT Act,
whether it's before the FISA Court or before a regular Article
III court. Again the results speak for themselves.
Mr. Dempsey. Senator, may I respond?
Senator Lott. Mr. Dempsey, I was going to ask if you have
any comment on either of my two questions.
Mr. Dempsey. Yes, sir. First of all, in terms of the
abuses, when a provision says that the government gets anything
they want just for asking for it, I don't see how that can be
abused. I honestly don't. A standardless law, it's hard to say
there's an abuse, and that is some of what we're talking about
here.
Now I think there have been what I would call abuses. I
think using the PATRIOT Act to break into a judge's chambers
and conduct a secret search in a non-terrorism case involving
no threat of life and no intimidation or likelihood of
intimidating witnesses, I don't think that that's what members
of this body thought they were voting for when they approved
the PATRIOT Act. I think that's an abuse.
It's within the four corners of the law, but I think that's
an abuse of the concept of this emergency legislation that was
passed to address a compelling national security threat. I
think that other of these provisions are so broadly written
that they cannot be abused. I think they should be narrowed.
Ms. MacDonald was referring to the judges. This law says
that if an FBI agent comes in with a signed piece of paper
saying--actually, it's interesting. It doesn't even say it has
to be in writing. It doesn't even say that the officer has to
name himself. If you compare this to some of the other laws on
our books, some of the subpoena laws or the pen register
statute for criminal cases, it has to be in writing. This
doesn't even say it has to be in writing. It doesn't say he has
to even name the case.
All he has to do is come in and say, ``I want these records
for an intelligence investigation,'' and the law says upon
application, oral application probably, the judge shall enter
an ex parte order as requested or as modified, period. Why even
have the judge in that case? That's a rubber stamp.
Now one thing that's interesting--and Ms. MacDonald
referred to this earlier--if you actually look at the FBI's
guidance on how to interpret this, it's actually better than
the text of the law. The FBI guidance on this does say that
they always have, internally at least, a factual basis and they
always have, it seems, some particularized suspicion.
Chairman Roberts. Mr. Dempsey, I'm going to have to
interrupt at this point, and I do appreciate your point of
view.
Could you clarify for the Committee which judge we're
talking about in terms of the chambers?
Mr. Dempsey. I honestly don't know. It was in a letter that
the FBI sent to Senator Stevens describing the use of the sneak
and peek legislation.
Chairman Roberts. All right. We can find that.
Senator Bond.
Senator Bond. Thank you very much, Mr. Chairman. I thank
the panel. I think we've had a very good discussion of what has
been widely abused and misused and misrepresented, as we now
hear people with differing points of view agreeing that there
is justification for this. I happen to be a strong supporter of
the PATRIOT Act. For better or for worse, I, with my colleague
from Maine, Senator Snowe, authored the Visa Integrity and
Security Act provisions which have caused a lot of heartburn.
We understand that any law like this should be reviewed and we
very much appreciate the thoughtful comments.
I go back to Mr. Dempsey and ask him briefly, you say on
section 213 it was used to expand government powers with
respect to delayed notice searches and that the section lacks
suitable checks and balances. It was my understanding the
PATRIOT Act merely codified pre-existing judicial precedent
that allowed investigators to execute delayed notice criminal
search warrants under certain limited circumstances.
To what extent was 213 an expansion of authority? Why
aren't the current limits unreasonable? If you have to have
approval of a judge, why isn't it appropriate to delay notice
in certain circumstances?
Mr. Dempsey. Senator, a good question. Let me give you an
example of how the provision failed in its stated goal of
codifying existing practice.
Senator Bond. All right.
Mr. Dempsey. Two circuit courts had specifically ruled on
the question of delayed notice. Each of them had come down in
favor of a 7-day delay rule as the basic timeframe for which
delay could be permitted, renewable for successive 7-day
periods upon a good showing.
The PATRIOT Act, rather than codifying that case law, says
the delay can be for any reasonable period. Well, what are the
judges of the Ninth Circuit supposed to do now? They had come
up with a 7-day rule. The Congress has not taken up the 7-day
rule and adopted a reasonable period rule.
If you look at the Justice Department guidance, they say
that up to 90 days would be a reasonable delay. That's an
example of where we could have given specificity and clear
standards and in fact failed to do so.
Senator Bond. Maybe Congress thought that the judges should
determine in the particular circumstances what is reasonable
and that if you are looking at a multi-faceted investigation,
as some of the ones that we have heard about here, there's no
way you're going to get it finished in 7 days. I would think
that the judge would have to be presented. They've said seven.
Time's up. I want Ms. MacDonald to comment on that.
Mr. Dempsey. If I could, Senator, just 1 second.
Senator Bond. I want Ms. MacDonald to comment when Mr.
Dempsey finishes his thought before we yellow light goes off.
Chairman Roberts. Mr. Dempsey, please proceed.
Mr. Dempsey. If we were going to leave it to the judges, we
should have left it to the judges. We didn't need 213 at all. I
think that the reason why the Justice Department pushed for 213
is because they had come to the conclusion that that legal
authority that everybody cites was on shaky ground, because if
you look at those cases, there are some older cases that said
that the Fourth Amendment has nothing to do with notice or says
nothing about notice. Then the Supreme Court later came along
and said that notice is part of the Fourth Amendment
determination.
Ms. MacDonald. Subsequent to that case itself, there's been
a Seventh Circuit case that said that you can delay notice for
reasonable periods of time. To my mind, reading the case law,
there is no question that delayed notice is fully
constitutional.
I think it was wise of Congress to give judges and
investigators the leeway to determine what a reasonable period
of delay is. One of the problems that we had pre-PATRIOT Act
was short time limits on warrants that were creating an
enormous amount of paperwork.
You know, again, we're fighting terrorism here. We're not
trying to prosecute----
Mr. Dempsey. Then let's limit this one to terrorism.
Ms. MacDonald. OK. I want to respond as well to Mr.
Dempsey's point about 215 when he asks, ``Why have a judge?''
Again, let's remember that these documents are available
without a judge. A prosecutor can get them on his own request.
Why 215 is more problematic is a mystery to me. The standard by
which the FISA Court decides a 215 request under the PATRIOT
Act is the same standard as under FISA. It required a factual
showing before the PATRIOT Act and it still requires it now.
Chairman Roberts. Senator Wyden.
Senator Wyden. Thank you, and thank all of you. We've got a
good cross-section of views at this table.
This Act is going to be renewed. There's just no question
about that. I would be interested in just going right down the
row--and we can start with you, Mr. Dempsey--and have each of
you say what you think the most important areas are with
respect to what the Congress should require in the way of
reporting. In other words, take two items each, the two most
important areas to you in terms of what is most important for
reporting so as to strike this balance between protecting the
public good and individual liberties.
Mr. Dempsey.
Mr. Dempsey. Recognizing that reporting is one aspect of
the sort of checks and balances we're talking about.
Senator Wyden. Right. I think one of the most important
ones.
Mr. Dempsey. I think reporting should apply to a couple of
the sections that we haven't talked about yet, which are the
emergency disclosure of e-mail section, which is section 212,
again a relatively uncontroversial provision in some ways. I've
been hearing that there have been a lot of requests. Again,
these are non-terrorism cases. These are by and large criminal
matters, and there's absolutely no reporting now for those
extrajudicial disclosures where the government goes to the
service provider, says there's an emergency, the service
provider, without a court order, turns over the e-mail. We
really don't have any kind of a handle on how often that's
happening.
In terms of FISA reporting, both on the electronic
surveillance, physical surveillance and on 215, I think the
issue there is to find a way to bring some of that more
detailed information into the public light. I know this
Committee receives the classified information. I would
certainly urge you to look carefully at the applications,
particularly the U.S. person ones. You may do that.
If you do do that, it would be useful to have a report
about that. In the early years of FISA there was a 5-year
report on its application which was an unclassified, public
report. I think that would be helpful. I think that could be
done without compromising any classified information and could
talk about what this Committee is doing behind the scenes as an
oversight matter.
I think there could be some more public reporting on FISA.
Mr. Nojeim. To summarize, sections 215 and 505, the FISA
records provisions, there ought to be reports under those
provisions. In fact, AG Gonzales revealed for the first time
just a couple weeks ago that section 215 had been used 35
times. A year before that Attorney General Ashcroft had said it
had never been used. It seems to me that if they can disclose
selectively the number of times it's been used that an annual
reporting requirement probably wouldn't damage national
security.
The section 215 reporting notion should be extended to
section 505, National Security Letters, as well.
In addition, sections 203(b) and 203(d) about information-
sharing, they could be beefed up with additional notice to the
court and to Congress about how information is being shared,
because right now there aren't sufficient requirements about
that.
Then I'd like to follow up for just a second on what
Senator Bond was saying earlier about sneak and peek warrants.
Senator Wyden. My time is short and I want to get Ms.
MacDonald in. If you could give us that a little bit later,
that would be great.
Ms. MacDonald. Thank you, Senator Wyden. I'll yield my time
back to Mr. Nojeim because I don't feel qualified to answer
that question. It's not something that I'd looked at on a
section-by-section basis. My impression is, given the past
reporting to the Judiciary Committee in the House, that the
reporting requirements are very extensive.
I'm not aware, really, of any gaps in reporting
requirements that exist.
Senator Wyden. I may have time for one additional question.
I was going to ask about National Security Letters, because I
have been troubled by the fact that there really isn't any
court review on it. What I'm most interested in to start with
is, do any of you know how frequently they've been used?
Because if this is not a frequently used tool, that makes it a
matter of lesser importance.
Do any of you three know about how frequently they've been
used?
Mr. Dempsey. Not currently. The staff knows; it's reported,
I think, to the Committee.
Mr. Nojeim. It ought to be something that's reported to the
public, the frequency of the use of those.
Senator Wyden. Are they widely used? Ms. MacDonald, do you
know?
Mr. Dempsey. Oh, they are very widely used. It's a classic
investigative technique.
Senator Wyden. My time is up. I would only ask, if that's
the case--and I was not aware of that, Mr. Chairman--I would
like to work with both of you on that.
Chairman Roberts. Senator Wyden, we do have that
information that you requested. We will share that with you.
Senator Wyden. My understanding, then, is, Mr. Chairman,
that there are very few rules with respect to National Security
Letters and if it's a widely used tool I would like to work
with both of you and see if we can flesh out a bipartisan
change there that would strike the right balance between
security and individual rights, because as far as I can tell
there's no standard for it.
I thank you.
Ms. MacDonald. Can I just make one response? The National
Security Letter law was 1986 law, and it was Patrick Leahy that
believed that they should be secret. Again, this is something
we've had a very long time to look at whether it's a power
that's been abused. Again, I'm not aware of abuses.
Senator Wyden. Well, there are a variety of statutes that
mandate National Security Letters. Other letters are
permissive, Ms. MacDonald. That's why I think we're going to
take a look at it.
Thank you, Mr. Chairman.
Chairman Roberts. Let the record show that we had a witness
before the Committee who actually said that she didn't know
about a question. I think that's remarkable.
I want to let my colleagues and everybody be aware of the
fact--I know Mr. Dempsey mentioned records and what the
Committee might do--this is not our first review of the PATRIOT
Act or the Foreign Intelligence Surveillance Act. We regularly
hold hearings and conduct briefings and receive information in
regard to the activities of the intelligence community.
We conducted a closed hearing on the PATRIOT Act during the
last Congress. We receive detailed reports from the Department
of Justice every 6 months in regard to FISA, annual reports on
the use of other surveillance tools. We're also in the final
stages of completing our second audit of the procedures and
practices and use of FISA. This comprehensive and classified
analysis I think will represent one of the most thorough
reviews of the Executive branch activities under FISA since the
Act was enacted.
That was in my opening statement and I wanted to make sure
that everybody here understood that we are aggressively active.
Senator Feinstein I think is next.
Senator Feinstein. Thank you very much, Mr. Chairman.
As a member of both this Committee and the Judiciary
Committee, in our hearings on the PATRIOT Act I have really
been hard-pressed to find any signs of bad use or overuse. I
have pressed the Attorney General to provide a specific report.
He has provided it. I've been though it. I have a hard time
finding any instance of misuse of this Act.
I would like the two people--Mr. Dempsey and Mr. Nojeim--to
take their best shot and give me what the misuse has been or
bad use and how it should be repaired.
Mr. Nojeim. We wrote a letter to you about this.
Senator Feinstein. I got that letter, a 12-page letter, I
think.
Mr. Nojeim. Let me just run through some of the points that
we made. First, the PATRIOT Act was used to search the home of
Brandon Mayfield. He's the Portland, Oregon, attorney who was a
suspect in a crime, and that was the Madrid train bombing. It
turned out that he was completely innocent and the PATRIOT Act,
the ``significant purpose'' test of the PATRIOT Act was used to
get the intelligence warrant to search his home. I could go
into that case in a little bit more detail.
Senator Feinstein. Let me stop you there, because I moved
the amendment in Judiciary for the ``significant purpose.'' If
you were to change it, how would you change it? Because I agree
with Ms. MacDonald. I think in this world that we live in, the
breaking down of that wall from ``primary purpose'' to
``significant purpose'' was really important to do.
Mr. Nojeim. As we wrote in the letter to you, we're not
asking that you support repeal of the ``significant purpose''
test. We're asking that you increase reporting. We're asking
that you----
Senator Feinstein. You mean periodic reporting?
Mr. Nojeim. Reporting, for example, of how many U.S.
persons are searched under FISA. Brandon Mayfield is a native-
born American.
Senator Feinstein. I understand that.
Mr. Nojeim. That's what we're asking for.
Another thing that we're asking is that you put the Brandon
Mayfields of the world--and there will be more of them--in a
better position if the government doesn't come forward with the
evidence showing that it wrongly accused them. Brandon Mayfield
could have gone to trial accused of one of the worst crimes in
history without getting access to the information that was used
to search his home.
What we're suggesting is that the Classified Information
Procedures Act provides a good model that the Committee could
adopt for giving a person like that, who is accused of a
terrible crime, if it actually goes to trial, access to that
information.
Another thing that we mentioned, in our letter to you, as
an abuse was the use of an unconstitutional statute. The
National Security Letter statute has been struck down by a
Federal district court. The statute was broadened
substantially, rewritten by the PATRIOT Act, and one can't say
that repeated use of an unconstitutional power is not a
problem. It is a problem.
We suggested a number of changes to the National Security
Letter statute that we think would satisfy that court. For
example, making it so that a person who gets one of those
National Security Letters can talk to a lawyer, making it so
that the gag that prevents them from saying they ever got a
letter is time-limited, and putting in a meaningful standard of
review for that letter.
The other cases that we mentioned in our letter to you
include the exclusion of a Muslim scholar under section 411 of
the PATRIOT Act that appears to be based on the person's
political opinion; in another one, the prosecution of a
gentleman, Sammy L. Hussein, for, among other things, posting
material to the Internet that he didn't even write. He posted
things to the Internet that were links to what other people
wrote. He was charged for providing material support for
terrorism for doing that and for some other things.
These are problems. We're suggesting that this Committee
can deal with those.
Senator Feinstein. Mr. Dempsey, quickly.
Mr. Dempsey. I think the cases cited by Mr. Nojeim are real
cases of abuse. I had cited in my dialog with Senator Lott
others that I thought were not what Congress had intended,
although they are within the four corners of the legislation--
use of PATRIOT Act authority for nonviolent crimes having
nothing to do with terrorism.
I also think, looking at the Justice Department report on
the PATRIOT Act sunsets, there's no evidence of abuse; also,
for many of the provisions there's no evidence of use, not that
they aren't used, but there's nothing one way or the other in
this report saying good or bad about how those cases have been
used.
I'm not sure that the standards, particularly for
intelligence authorities, should be documented abuses. I think
we can now take the time, look at the authority, ask does the
authority meaningfully advance the national security. I think
in almost every case, if not every case, there is an argument
that it does. Then ask ourselves what should be the
circumstances surrounding that.
Clearly Congress thought it was retaining some limits.
Witnesses today have emphasized the role of the judiciary, for
example. The fact that the government needs information doesn't
mean that all the rules are off. We now have the time to go
back. We've made what I think are significant proposals,
relatively modest, but they would help focus the FBI and other
intelligence agencies.
Ms. MacDonald. Can I quickly respond?
Senator Feinstein. My time is up, but could Ms. MacDonald
comment?
Chairman Roberts. Well, I certainly would like to recognize
Ms. MacDonald for her quick-draw best shot.
Ms. MacDonald. OK. Thank you.
I think we've had a case of bait and switch here. I'm
really perplexed by the Brandon Mayfield example. What we were
hearing, the doom and gloom scenarios about getting rid of the
``primary purpose'' test was that you would have a sneaky
prosecutor who wants to get some guy for drugs and he uses FISA
because it's a lower standard of review.
Brandon Mayfield was being investigated for terrorism. I
don't see how that is a misuse of the PATRIOT Act. The problem
was the fingerprinting was inaccurate. That was not a PATRIOT
Act abuse. The system worked. He was exonerated. He was not
prosecuted. I'm very perplexed by the Mayfield example.
If that's all they've got, it's not much. The National
Security Letter statute that Mr. Nojeim says was stuck down as
unconstitutional, that's true, but they did not strike down the
PATRIOT Act provision. They struck down the 1986 Electronic
Communications Privacy Act and Senator Leahy's idea that there
should be a gag order. Let's not way that the PATRIOT Act has
been struck down as unconstitutional.
The exclusion of a Muslim scholar because of his political
opinion, I'd need to know the facts about that. Obviously if
somebody is preaching jihad, in the worst case scenario, I do
not think that we want to admit. There's no constitutional
right of a foreigner to be admitted to this country. He has no
First Amendment rights. Without knowing more about the case,
that would be my initial reaction.
Chairman Roberts. Senator Corzine.
Senator Corzine. Thank you, Mr. Chairman, and I appreciate
the hearing.
I'd like to actually continue on this. I come at this by
citing a quote in the 9/11 Commission.
``The burden of proof for retaining a particular governmental
power should be on the Executive to explain that the power
actually materially enhances security and that there's adequate
supervision of the Executive's use of the power to ensure
protection of civil liberties.''
It goes on.
I embrace that concept, and I think this discussion of
abuses actually is one of those elements that maybe some of
this needs to be done privately where you delve into it. The
idea of a judge's quarters being interdicted into without any
kind of authori-
zation----
Mr. Dempsey. There was a court order, just to be clear,
Senator. There was a court order, but it was a secret search.
Senator Corzine [continuing]. Strikes me as somewhat
overreaching. I'd like to hear the response to Ms. MacDonald's
comments about the Mayfield situation, which, if you were Mr.
Mayfield, an American citizen, you'd wonder why you were being
subjected outside of extraordinary causes, why you were being
subject to an investigation without the kinds of checks and
balances that American citizens believe that they have under
the Constitution.
Mr. Nojeim. A couple points in response to Ms. MacDonald.
First, in the Mayfield case, the government never had to
show probable cause of crime in order to break into his home.
It's just a different standard. It's a lower standard. They
used the PATRIOT Act to break into his home. They didn't give
notice. They wouldn't have to give notice--I'm sorry. Pre-
PATRIOT Act, they would have had to give notice. They would
have had to, when they broke in and downloaded the computer
hard drives, took 355 digital photographs, took 10 samples of
DNA, they'd have to leave a notice saying this is what we took
from your apartment.
You know what Mayfield's most concerned about now? All this
information that was gathered has now been shared. It's been
shared under the information-sharing provisions of the PATRIOT
Act. There's not a Rule 41 A-type procedure for Mayfield to get
it all back, to get back what was downloaded from his computer.
That's one of his concerns.
The other point that Ms. MacDonald made was about the
National Security Letter statute. This I need to illustrate.
The PATRIOT Act rewrote the National Security Letter statute.
This is 18 USC section 2709, before the PATRIOT Act.
This is what the PATRIOT Act did to the National Security
Letter statute. The parts that are in yellow were added by the
PATRIOT Act. The parts that are crossed out were deleted by the
PATRIOT Act.
Chairman Roberts. If you can, Mr. Nojeim, speak up. I
apologize that we don't have a rolling mike.
Mr. Nojeim. This is what the Court did to 18 USC section
2709. It struck the parts that were added by the PATRIOT Act
and it struck the parts that were in the statute before the
PATRIOT Act amended it that were not deleted by the PATRIOT
Act. It struck every single sentence, every phrase, every comma
of section 505(a) of the PATRIOT Act. It is simply not accurate
to say that it didn't strike a section of the PATRIOT Act.
[The chart referred to follows:]
[GRAPHIC] [TIFF OMITTED] T4983.001
[GRAPHIC] [TIFF OMITTED] T4983.002
[GRAPHIC] [TIFF OMITTED] T4983.003
Mr. Nojeim. In his opinion striking this National Security
Letter statute, Judge Morero repeatedly, repeatedly referred to
amendments made by section 505(a) of the PATRIOT Act. He noted
as examples of abuses conduct that could not have been
conducted prior to the PATRIOT Act changes. In particular with
respect to the gag in section 505(a), he said that the
requirement of the tie to an agent of a foreign power limits
the potential for abuse and cited that as one of the reasons he
was striking down this statute.
Ms. MacDonald. I read that opinion very differently. The
ACLU was challenging the 1986 law on the fact that there was a
gag order in the National Security Letter 1986 law that was put
there by Patrick Leahy. The PATRIOT Act changed the 1986 law to
this extent: it removed the agent of a foreign power
requirement. That is not the issue that was before the Court.
The issue before the Court was the constitutionality of the
gag order which was in 1986. Yes, it struck down the entire
section because the PATRIOT Act merely amended that section.
The PATRIOT Act changes were not what was at stake. It really
is more accurate to say it struck down the 1986 law.
On the Mayfield case, again they were breaking into his
house because he was under investigation for terrorism, not for
a garden variety crime. Pre-PATRIOT Act they would have had to
have given notice. Do we want to be giving notice to suspects
in terrorism cases? I don't think so. Now, are there going to
be cases in the future, perhaps, where other American citizens
are suspected of terrorism. Could be. I wish we knew that no
American is ever going to be tempted to join into a terrorist
plot.
We don't have a rule to that effect. I think that the power
to investigate terror suspects is properly limited by the
PATRIOT Act. That was a terrorism investigation, not a criminal
investigation.
Chairman Roberts. Senator Rockefeller.
Vice Chairman Rockefeller. Thank you, Mr. Chairman. I just
have one question. Over the months, years of its history, it
seems to me to have always been the core question. That is, I'm
not sure which one said it, but one of you said that the FISA
judges are nothing more than a rubber stamp.
I think that there are those who oppose the PATRIOT Act or
want to see it changed because they accept that. I'm not a
lawyer and I would wish to hear each of you say why you think
or what you think about that statement.
Mr. Dempsey. Senator, that was my statement, so if I could
first--let me make it clear. I don't think that the FISA judges
are rubber stamps in reviewing the content interception orders
or the physical search orders, and they have proven that
because they have clearly pushed back against the FBI and
against the Office of Intelligence Policy Review, which
presents the orders to them. Absolutely, I don't think that
they are rubber stamps.
I think under 215 they don't want to be rubber stamps, but
as I read the statute it sort of makes them function as rubber
stamps. It basically says, there will be no facts in front of
you and you cannot ask for facts or asking for facts is outside
the scope of the statute. I think that court is an important
institution. I think they may ultimately, as we go forward, be
given additional responsibilities.
I don't want them to be rubber stamps. The PATRIOT Act, at
least 215, as adopted, and probably the pen register changes,
if adopted, do pretty much make them into that.
Vice Chairman Rockefeller. How would you respond to that,
Ms. MacDonald?
Ms. MacDonald. That was actually my statement. I said that
in my impression I hear critics accusing the FISA court of
being a rubber stamp because it's in secret. I think that is an
insult to Article III judges who rotate in and out of that
court. I have to assume that they are taking their
responsibilities extraordinarily seriously.
Let's not forget that FISA, the original law, was already a
radical civil libertarian idea that a judge should be involved
in foreign intelligence investigations in the first place. The
whole wisdom of constitutional assumptions up to that point was
that anything involving foreign espionage, foreign terrorism,
was within the Executive branch's discretion, because judges
don't have the knowledge to pass on such matters. The very fact
that we have a court at all basically issuing warrants for
foreign intelligence investigations I think is already a
significant check on executive power.
The idea that anything should be public about that court to
me is preposterous.
Vice Chairman Rockefeller. That I'm not questioning.
Mr. Dempsey said that they have no facts before them. When
you say that to the average American they say, ``Well, they
must just be operating automatically or on automatic pilot.''
Ms. MacDonald. They have the record that is presented to
take a request before the FISA court.
Vice Chairman Rockefeller. The facts that they do have
reflect on the decision that they will proceed to make.
Ms. MacDonald. That the records are relevant to a terrorism
investigation.
Vice Chairman Rockefeller. And, Mr. Dempsey, you would say?
Mr. Dempsey. Well, I guess I have to say, Mr. Chairman, at
some level I don't know, since I haven't seen a 215 or post-
PATRIOT pen register application to the FISA court. As I read
the statute, it says nothing about the factual determination.
If there is one and if there is a factual showing--and, by the
way, internally the FBI does prepare, internally, a factual
basis for both the National Security Letters and 215, and I
assume for the pen registers--if they do, I think that should
be part of the statute.
If they don't, then I think they are operating on
autopilot, and that's where it would be good if this Committee
could say something publicly about what it has seen, that 215
and pen register applications do or do not have a factual
predicate to them, and it is or is not something that would
show relevance in the particularity of that request.
National Security Letters, of course, never are presented
to a judge. I think they should be. I think everything should
be rolled into 215.
Ms. MacDonald. if you have a judge, it's not enough, and if
you don't have a judge, then it's not enough. The identical
language was what was governing the FBI before 9/11 when this
Committee raised the alarm that the FISA process was taking
months and that the OIPR was putting probable cause standards
that were completely unjustified by the statute.
The practice is clearly to develop a substantial record to
take to the court.
Vice Chairman Rockefeller. You think that the necessity of
getting--as you pointed out, I think very effectively, this is
about terrorism and our Nation's security--that there is a
certain rush to get decisions made for purposes of looking or
not looking or whatever, and that some then would interpret
that as, in and of itself, being avoiding their particular
practices, which would not apply to a national security type
situation, an ordinary law situation. Shakespeare could have
said that better.
Ms. MacDonald. Again let's just remember that your peers
can get those records. A grand jury can subpoena those records
with no judge involved at all. The PATRIOT Act gives you a
judge. FISA gives you a judge. Those records are not protected
by the Fourth Amendment. You do not need a probable cause
warrant to get them. A prosecutor can say give me those records
right now.
Vice Chairman Rockefeller. Would you disagree with that,
Mr. Nojeim?
Mr. Nojeim. I would say that she's gone a little too far in
saying that the records are completely unprotected by the
Fourth Amendment because they're in the hands of a third party.
For example, when I send an e-mail to you, that e-mail is in
the hands of an Internet service provider. The content of that
e-mail, I believe, is protected by the Fourth Amendment. So
this notion that everything that's in the hands of a third
party is unprotected I don't know that I would go that far.
Ms. MacDonald. The PATRIOT Act does not make the content of
that e-mail available. That is protected First Amendment
information. Third party records----
Mr. Nojeim. Actually, if I could just follow up on that,
what happened in the PATRIOT Act was the pen register and trap
and trace language that used to apply only to telephone records
and was interpreted to apply to Internet records was explicitly
applied to Internet records. It wasn't clarified that that
language doesn't include, for example, content type information
that might be in a person's search request when they make a
search request under Google, for example.
One of the things that we're suggesting that this Committee
or Congress do is to clarify that that kind of information,
which is content, would not be available under pen registers
and trap and trace devices.
Ms. MacDonald. That's fine. This is minutiae. The fact is,
U.S. v. Miller, a Supreme Court case of 1976, said no Fourth
Amendment privacy interest in records in third party hands.
That's why a prosecutor can subpoena them.
Vice Chairman Rockefeller. This has been enlightening and
helpful. I thank you all.
Chairman Roberts. Senator Corzine.
Senator Corzine. I really just need to ask for the facts in
the Mayfield case. Can someone give me the chronology about
what authorizations occurred, didn't occur, and how soon the
individual was made aware? What was the flow. I apologize if I
didn't get through all my briefings, but actually looking at
some of these individual cases----
Chairman Roberts. Senator, could I make a suggestion, that
we go into that in a closed session, as to chronological order
that you requested? I want the witnesses to respond, if in fact
you have something to say, but let me just say that I think you
should raise that question again during the closed session so
we can get a better answer.
I would only say that at the time, I think it was Ms.
MacDonald, indicated that it was a fingerprint mistake. We
thought this gentlemen had the same fingerprint as was located
on a bomb in Madrid. As you remember, we were going through
quite a time here in regard to a consensus threat analysis
that, as it turned out--I'll just stop right there.
We did a lot in terms of security measures and everybody
was very intense at that particular time, very concerned. As it
turned out, that was not the case in regard to the level that
perhaps was acted upon. I probably ought to quit talking about
it.
At any rate, it was at that particular time. We had
officers around here, as you well remember, with gas masks and
automatic weapons and security moved away, and parents of my
staffers calling. One Senator just left. It was all based on
the Madrid syndrome. You had a situation where you had a
fingerprint mistake.
I don't think that that's an abuse of the PATRIOT Act. That
was a mistake by the FBI and the fingerprint. Now that didn't
answer your question, and I apologize. At least I wanted to
bring that up.
If you would like to pursue that.
Senator Corzine. I respect the idea that we ought to parse
this, if we were to parse this, in private. What is in the
public domain, if someone had a comment on it.
I have a simple question. Was there a FISA request.
Mr. Nojeim. Yes. There was a FISA request. The simple two-
sentence explanation is, Mayfield enlisted in the Army and
submitted a fingerprint. It was that fingerprint that was
mistakenly matched with a fingerprint on some detonators of
undetonated bombs that were found in Madrid. The government
used that match to detain Mayfield on a material witness
warrant, but prior to that it had secretly broken into his
home, apparently a number of times, and also conducted
electronic surveillance using the Foreign Intelligence
Surveillance Act, as amended by the PATRIOT Act.
Mr. Dempsey. Mr. Chairman.
Chairman Roberts. Yes, Mr. Dempsey.
Mr. Dempsey. Could I just make one brief comment, not on
the Mayfield question but going back to the discussion of abuse
and sort of what's the burden of proof, so to speak, on the
PATRIOT Act. In November 2001 the National Security Law unit at
the FBI sent a field memo out to agents explaining the National
Security Letter provisions, pointing out that the National
Security Letters are powerful investigative tools. However,
they just be used judiciously. It said that the USA PATRIOT Act
greatly broadened the FBI's authority to gather this
information; however, the provisions in the Act relating to the
NSLs are subject to a sunset provision that calls for the
expiration of those provisions in 4 years. In deciding whether
or not to reauthorize the broadened authority, Congress
certainly will examine the manner in which the FBI exercised
it.
Now in that sense I think that the sunsets worked. The
sunsets have required the government to be careful. There may
be abuses, either in the Mayfield case or in some of the cases
I cited, abuses may yet come to light, but because of the
sunsets we did have this exercise of caution implicitly
recommended by FBI headquarters.
I think we need to either have another sunset or we need to
find some checks and balances that will serve the same purpose
and ensure that these are exercised carefully. Because if the
sunsets go away, then I'm not sure what there is left.
Chairman Roberts. Senator Chambliss. You are like Shane;
you come back.
Senator Chambliss. When you page me, Mr. Chairman, I come.
I apologize for having to come and go, but this is too
interesting a subject and too important a subject to not come
back and dialog on a couple of issues.
First of all, Mr. Dempsey, in your opening comments you
talked about sneak and peek and the use of it relative to a
couple of instances that you pointed out, one going into a
judge's chamber to look for whatever I guess the FBI in that
case was looking for and, second, in the office of a health
care provider. In both those cases they used the PATRIOT Act.
How could you use the PATRIOT Act in a non-terrorist
situation in the two examples that you gave?
Mr. Dempsey. Isn't that a fascinating question? That would
perplex most people, Senator. The fact is that there are
provisions in the PATRIOT Act that have nothing to do with
terrorism. Sneak and peek is No. 1. Remember, for terrorism
investigations the FBI has sneak and peek authority under FISA.
If sneak and peek authority were needed for criminal
investigations of terrorism, some Senators, including Senator
Leahy, said, ``Well, OK, let's have a sneak and peek for
terrorism cases.''
``Uh-uh'', said the Justice Department. We want it for all
cases. We want it for student loan cases. We want it for
Medicare fraud cases. We want it for judicial corruption cases.
We want it for check-kiting cases. That's what was enacted and
that's how it's being used. I think most people would be
astonished to realize that the PATRIOT Act is being used for
sneak and peek searches in non-
terrorism, non-violent cases.
Senator Chambliss. Is there a specific authorization for
sneak and peek to be used in non-terrorist cases within the
PATRIOT Act?
Mr. Dempsey. Well, the section was generic in nature. It
was a generic exception to the rule which generally requires
notice in the execution of warrants. It was sort of shoehorned
in there. It's a little bit of an odd provision.
Senator Chambliss. Of course, sneak and peeks have been
used, particularly in organized crime cases, drug cases, I know
for years. Are you telling me that this was something
different, that there was some additional authority given in
the PATRIOT Act that allowed them to use this versus the
previous sneak and peek authority?
Mr. Dempsey. My own view is that the Justice Department was
trying to bootstrap the existing authority, which I think was a
little bit shaky, it couldn't be pushed too far, it had to be
used with care, in my view it had to be confined to cases where
there was risk of destruction of the evidence or risk of
intimidation of witnesses or flight from prosecution or risk of
loss of life or some violent act.
What happened in the PATRIOT Act was that basically the
Justice Department invoked the authority of the Congress to
bolster that authority, expand the kind of cases in which it
could be used, and in essence give a green light to the judges,
backed up by Congress. Judges have allowed sneak and peeks in
criminal cases before the PATRIOT Act.
I think the Justice Department was a little worried about
what ground that stood upon. Some Supreme Court cases had said
that notice is more important than we had thought when the
original sneak and peek cases were decided, and I think the
Justice Department was trying to get Congress to sort of
bolster that authority and expand it in the sense of putting it
on what seemed to be a firmer foundation, although, of course,
it's the Constitution that's the final test.
I think that there was an effort by the Justice Department
to take some somewhat uncertain, often used but still uncertain
and cautiously exercised, judicial common law authority and
bolster that with this emergency legislation. I think they
shouldn't have done it for cases, non-terrorism-related. I
think that is somewhat surprising, that it turned out that way.
I think that now the judges, if anything, are probably more
confused about what are the standards for sneak and peek
searches. It looks a little bit like the constraints are off.
Senator Chambliss. Ms. MacDonald, according to your opening
comments, I don't think you agree with that. Am I right?
Ms. MacDonald. That's a good supposition. The theory that
somehow the authority to delay notice of a search was in any
constitutional jeopardy before the PATRIOT Act I disagree with
100 percent. The cases had upheld sneak and peek authority. In
fact, I don't see how you can conduct any kind of pre-emptive
investigation, be it criminal or terrorism, with notice. You
can't.
If sneak and peek hadn't existed, somebody would have had
to invent it, because if you are trying to limn out the extent
of a criminal conspiracy, you need secrecy up until the point
when you have evidence. You need secrecy. Remember, the other
point about this authority, which pre-existed the PATRIOT Act
and which the PATRIOT Act merely codified, is that notice is
only delayed.
There is no authority to withhold notice for eternity. All
that the PATRIOT Act did was change, in one case, a 7-day rule
of thumb to the phrase ``reasonable period of delay.'' Courts
all the time operate under that type of language, and we don't
have a problem with it. It is in fact, in case law, quite rare
to have specific numerical barriers on anything. This is why we
have the common law system, because courts like to look at
facts and use their own judgment.
As far as getting rid of the limits that Mr. Dempsey said,
that's not true. The PATRIOT Act points to the exact set of
circumstances that he just enumerated--witness intimidation,
destruction of evidence, jeopardizing a trial or unduly
delaying a trial, putting somebody's life in jeopardy. Those
existed pre-PATRIOT Act, they exist post-PATRIOT Act.
I don't think the Justice Department was in any fear of the
power being taken away from them. I think what they wanted was
a uniform national standard for complex criminal or terror
investigations so they didn't have to worry about what the
Second Circuit's specific details were versus the Ninth
Circuit's. Because we have national investigations, be they
criminal or terror.
Mr. Dempsey. Then let's write those standards. What the
Congress did in the PATRIOT Act was to refer to a list of
circumstances not drawn up for sneak and peek searches, not
drafted for the PATRIOT Act but drafted a number of years ago
in a law having to do with delayed notice of access to stored
e-mail. The PATRIOT Act simply references those circumstances
by referral--the risk of loss of life, absolutely, intimidation
of witnesses, destruction of evidence, flight from prosecution.
They also include otherwise unduly jeopardizing an
investigation or delaying a trial.
It turns out that the Attorney General report just last
week that the majority of the sneak and peeks that have been
approved under the PATRIOT Act in non-terrorism cases since it
was adopted have been in that catch-all category of unduly
delaying a trial or otherwise jeopardizing an investigation.
If we want to give standards, if we want to give
uniformity, if we want to give guidance to the courts, let's
give them guidance. Let's think about what are the
circumstances in which this technique is appropriate and write
them and not reference some other circumstances developed for
another purpose.
I think it would be useful to actually look back at the
cases. I'm not sure that any case has ever said that a delay in
a trial is a reason to break secretly into somebody's house. I
don't think there is a case on that.
Chairman Roberts. I want to thank all the witnesses for a
very challenging and intellectually stimulating hearing and for
your advice and counsel as we go through the reauthorization of
the Act. You have been most helpful and been patient and you
have persevered, and we thank you very much for your
attendance.
The hearing is concluded.
[Whereupon, at 4:44 p.m., the hearing adjourned.]
THE HISTORY AND APPLICATION OF THE USA PATRIOT ACT AND THE IMPORTANCE
OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 (FISA)
----------
DAY TWO
WEDNESDAY, APRIL 27, 2005
United States Senate,
Senate Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 9:37 a.m., in
room SH-216, Hart Senate Office Building, Hon. Pat Roberts
(Chairman of the Committee) presiding.
Committee Members Present: Senators Roberts, DeWine, Snowe,
Rockefeller, Levin, Wyden and Mikulski.
OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN
Chairman Roberts. The Committee will come to order.
The Senate Select Committee on Intelligence today continues
its ongoing oversight of the USA PATRIOT Act. This is the third
in a series of three hearings designed to educate Members and
the public as the Senate considers the repeal of the sunset
provision, and modification to other intelligence authorities.
Last week, the Committee heard from a panel of outside
experts with regard to the authorities contained in the PATRIOT
Act. Later in the week, the Committee held a very informative
closed hearing on the use by the intelligence community field
operatives of the tools provided by the PATRIOT Act, and today
it is my opinion that I have heard nothing to substantiate the
allegations that abuses of the tools that are provided by the
USA PATRIOT Act have led to violations of the civil rights of
American citizens. I have, however, heard testimony and
received other information that clearly demonstrates how the
PATRIOT Act has been instrumental in helping our intelligence
community agencies, in particular the FBI, identify and
interdict terrorists and other national security threats.
The purpose of today's hearing is to receive testimony
concerning the Administration's position on the authorities
provided in the PATRIOT Act, including those provisions subject
to sunset. We have a distinguished panel--the Honorable Alberto
Gonzales, Attorney General of the United States; the Honorable
Robert Mueller, the Director of the Federal Bureau of
Investigation; and the Honorable Porter Goss, the Director of
the Central Intelligence Agency. The Committee thanks all of
our witnesses for being here today, and for taking time out of
your very valuable schedule.
This series of hearings is not the Committee's first review
of the USA PATRIOT Act or the Foreign Intelligence Surveillance
Act, also known as FISA. The Committee regularly holds hearings
and conducts briefings and receives information in regard to
activities of the intelligence community. The Committee
conducted a closed hearing on the PATRIOT Act during the last
Congress. We receive detailed reports from the Department of
Justice every 6 months in regard to FISA collection, and annual
reports on the use of other surveillance tools.
The Committee is also in the final stages of completing its
second audit of the procedures and practices in the use of
FISA. This comprehensive classified analysis will represent one
of the most thorough reviews of the executive branch activities
under FISA since the USA PATRIOT Act was enacted.
Now, before I recognize the Vice Chairman, I want to
reiterate some fundamental principles that will inform our
consideration of the USA PATRIOT Act reauthorization and any
other modifications to law or policy governing intelligence
activities. First, our intelligence agencies need flexible
authorities to confront terrorists, spies, and proliferators
and other national security threats.
Second, as we seek to protect the national security, we
must also ensure that civil liberties and privacy are not
sacrificed in the process. This is not a zero sum game,
however. As former Supreme Court Justice Arthur Goldberg noted,
while the Constitution does protect against invasions of
individual rights, it is not a suicide pact.
Third, these are not matters of first impression. During
their interpretation of the Constitution and the President's
responsibility to protect national security, Federal courts
have wrestled with many of these issues before. And the courts
have recognized the authority of the President to conduct
warrantless electronic surveillance of foreign powers and their
agents. Well established judicial precedents also make clear
that certain records, even of the most private information,
lose their constitutional protection when voluntarily exposed
publicly or to a business or to a third party.
Finally, I will support reasonable modifications to the USA
PATRIOT Act provisions or other authorities that clarify legal
uncertainties, but I will oppose modifications that place
unnecessary hurdles in the path of lawful intelligence
investigations.
Now, the Senate's consideration of modifications to section
215 of the US PATRIOT Act will serve as a good example of how I
intend to apply these fundamental principles. I had previously
expressed my support for the modifications made to FISA by
section 215. The ``business records'' that our investigators
now have access to, following a review by a Federal judge, are
very important pieces of the intelligence puzzle. They form the
basis for further investigation of national security threats.
Despite all of the talk that has been directed at section
215, and obvious concern, I have heard of no substantial
allegation of abuse or misuse. There may have been some
mistakes, but it certainly didn't have anything to do with the
PATRIOT Act. In fact, I believe the FBI's use of the authority
may have been a little bit too judicious. While I recognize
that some clarifying modifications to section 215 may be
necessary, I will oppose any modification that increased the
standard for a business record order above ``relevance'' or
alterations that place unreasonable barriers between these
records and the intelligence officials.
Those provisions of the USA PATRIOT Act, including section
215, that will expire at the end of the year must be
reauthorized. The alternative is a return to a failed,
outdated, and illogical limit on national security
investigations that tied our hands prior to the 9/11 attacks.
The dangers are real, and we should give our people every
constitutional tool available to fight and defeat terrorism.
I now recognize the distinguished Vice Chairman for any
remarks he might wish to make.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV
Vice Chairman Rockefeller. Thank you, Mr. Chairman.
I greet all three of you distinguished leaders of your
agencies and express embarrassment that there are only four
Members of our Committee here. If there are any that choose to
listen to this on in-Senate television, we would welcome their
coming in and participating in this Committee meeting. This is
not an impressive display of government oversight.
I do welcome you. Our principle focus has been on one title
of the PATRIOT Act, which is Title II on enhanced surveillance
procedures. That has, as we discussed before, 16 provisions
that will cease to have effect or sunset on December 31st of
this year. In addition, the recently enacted Intelligence
Reform Act authorizes the use of the FISA, the Foreign
Intelligence Surveillance Act, in the case of so-called lone
wolf terrorists. That new authority is also subject to sunset
at the end of this year.
So these hearings and related hearing before the Senate
Judiciary Committee and in the House also will help Congress to
resolve two basic questions. First, on the basis of experience
and further reflection since September 11, 2001, should any of
the expiring authorities be amended? And second, as originally
enacted or as amended, should the expiring provisions be made,
in fact, permanent?
From last week's hearings it appears that there is broad
support for the proposition. Even a critic of parts of the
PATRIOT Act conceded that, ``we see not a single power in the
Act that needs to sunset or go away entirely.'' Rather, the
issue is whether several sections of the Act should be amended
to provide additional checks and balances. It's my hope that we
can now begin to focus on the suggestions for improving several
of the provisions that are now scheduled to expire at the end
of this year.
In the Senate there is a bipartisan bill, S. 737, the
Security and Freedom Enhancement Act, or SAFE Act, introduced
by Senator Craig. Senator Corzine of our Committee is one of
the 10 bipartisan cosponsors of this Act. The SAFE Act would
make permanent most of the PATRIOT Act's investigative tools
without change and amend several other PATRIOT Act tools to
provide additional safeguards. I have reached no conclusions
myself about the particulars of the SAFE Act, or I choose not
to at this point, which has been referred to the Judiciary
Committee and also will be studied by our colleagues very
carefully in that body.
I do believe on the basis of the breadth of its sponsorship
and the supporting testimony that we have heard that the
legislation merits our serious consideration. I look forward to
hearing from our witnesses today about the proposals in the
SAFE Act, including any objections or alternative suggestions
that you may have for ensuring both sufficient focus on
suspected terrorists and sufficient judicial and congressional
oversight.
We need effective investigative tools against terrorism.
Nobody can argue that. We need to be mindful of our
Constitution and our values. And we need to build a broad
public consensus that sustains our efforts against a war on
terrorism which I think will last for decades, in those years
to come. This will require intensive effort by the executive
and legislative branches, to give the American public
additional confidence that powerful investigative tools will be
used effectively and that they will be used judiciously. I
think this can be done, but the American public is not easily
sold on such matters. On the other hand, fighting a war on
terrorism has its own requirements by themselves.
Today's witnesses head the three organizations that are
responsible, along with the Department of Defense, for
developing, issuing and carrying out the legal and operational
guidance at the heart of our interrogation program, and that is
another matter for another day.
Mr. Chairman, I thank you, and again I welcome the
witnesses.
Chairman Roberts. We are pleased to have the Attorney
General and the Director of the FBI and the Director of the CIA
with us. And in the following order they will be recognized--
the Attorney General, and the FBI Director, and the CIA
Director. So General Gonzales, if you would like to proceed,
sir, you are most welcome to do so at this time.
[The prepared statement of Attorney General Gonzales and
Director Mueller follows:]
Prepared Statement of Alberto R. Gonzales and Robert S. Mueller III
Chairman Roberts, Vice Chairman Rockefeller, and Members of the
Committee:
We are pleased to be here today to discuss the government's use of
authorities granted to it by Congress under the Foreign Intelligence
Surveillance Act of 1978 (FISA). In particular, we appreciate the
opportunity to have a candid discussion about the impact of the
amendments to FISA made by the USA PATRIOT Act and how critical they
are to the government's ability to successfully prosecute the war on
terrorism and prevent another attack like that of September 11 from
ever happening again.
As we stated in our testimony to the Senate Judiciary Committee, we
are open to suggestions for strengthening and clarifying the USA
PATRIOT Act, and we look forward to meeting with people both inside and
outside of Congress who have expressed views about the Act. However, we
will not support any proposal that would undermine our ability to
combat terror ism effect ively.
I. FISA STATISTICS
First, we would like to talk with you about the use of FISA
generally. Since September 11, the volume of applications to the
Foreign Intelligence Surveillance Court (FISA court) has dramatically
increased.
In 2000, 1,012 applications for surveillance or search
were filed under FISA. As the Department's public annual FISA report
sent to Congress on April 1, 2005 states, in 2004 we filed 1,758
applications, a 74 percent increase in 4 years.
Of the 1,758 applications made in 2004, none were denied,
although 94 were modified by the FISA court in some substantive way.
ii. key uses of fisa authorities in the war on terrorism
In enacting the USA PATRIOT Act, the Intelligence Authorization Act
for Fiscal Year 2002, and the Intelligence Reform and Terrorism
Prevention Act of 2004, Congress provided the government with vital
tools that it has used regularly and effectively in its war on
terrorism. The reforms contained in those measures affect every single
application made by the Department for electronic surveillance or
physical search of suspected terrorists and have enabled the government
to become quicker and more flexible in gathering critical intelligence
information on suspected terrorists. It is because of the key
importance of these tools to the war on terror that we ask you to
reauthorize the provisions of the USA PATRIOT Act scheduled to expire
at the end of this year. Of particular concern is section 206's
authorization of multipoint or ``roving'' wiretaps, section 207's
expansion of FISA' s authorization periods for certain cases, section
214's revision of the legal standard for installing and using pen
register/trap and trace devices, and section 215's grant of the ability
to obtain a Court order requesting the production of business records
related to national security investigations.
In addition, the Intelligence Reform and Terrorism Prevention Act
of 2004 includes a ``lone wolf' provision that expands the definition
of ``agent of a foreign power'' to include a non-United States person,
who acts alone or is believed to be acting alone and who engages in
international terrorism or in activities in preparation therefor. This
provision is also scheduled to sunset at the end of this year, and we
ask that it be made permanent as well.
A. Roving Wiretaps
Section 206 of the USA PATRIOT Act extends to FISA the ability to
``follow the target'' for purposes of surveillance rather than tie the
surveillance to a particular facility and provider when the target's
actions may have the effect of thwarting that surveillance. In the
Attorney General's testimony at the beginning of this month before the
Senate Judiciary Committee, he declassified the fact that the FISA
court issued 49 orders authorizing the use of roving surveillance
authority under section 206 as of March 30, 2005. Use of roving
surveillance has been available to law enforcement for many years and
has been upheld as constitutional by several Federal courts, including
the Second, Fifth, and Ninth Circuits. Some object that this provision
gives the FBI discretion to conduct surveillance of persons who are not
approved targets of court-authorized surveillance. This is wrong.
Section 206 did not change the requirement that before approving
electronic surveillance, the FISA court must find that there is
probable cause to believe that the target of the surveillance is either
a foreign power or an agent of a foreign power, such as a terrorist or
spy. Without section 206, investigators will once again have to
struggle to catch up to sophisticated terrorists trained to constantly
change phones in order to avoid surveillance.
Critics of section 206 also contend that it allows intelligence
investigators to conduct ``John Doe'' roving surveillance that permits
the FBI to wiretap every single phone line, mobile communications
device, or Internet connection the suspect may use without having to
identify the suspect by name. As a result, they fear that the FBI may
violate the communications privacy of innocent Americans. Let me
respond to this criticism in the following way. First, even when the
government is unsure of the name of a target of such a wiretap, FISA
requires the government to provide ``the identity, if known, or a
description of the target of the electronic surveillance'' to the FISA
Court prior to obtaining the surveillance order. 50 U.S.C.
Sec. Sec. 1804(a)(3) and 1805(c)(l)(A). As a result, each roving
wiretap order is tied to a particular target whom the FISA Court must
find probable cause to believe is a foreign power or an agent of a
foreign power. In addition, the FISA Court must find ``that the actions
of the target of the application may have the effect of thwarting'' the
surveillance, thereby requiring an analysis of the activities of a
foreign power or an agent of a foreign power that can be identified or
described. 50 U.S.C. Sec. 1805 (c)(2)(B). Finally, it is important to
remember that FISA has always required that the government conduct
every surveillance pursuant to appropriate minimization procedures that
limit the government's acquisition, retention, arid dissemination of
irrelevant communications of innocent Americans. Both the Attorney
General and the FISA Court must approve those minimization procedures.
Taken together, we believe that these provisions adequately protect
against unwarranted governmental intrusions into the privacy of
Americans. Section 206 sunsets at the end of this year.
B. Authorized Periods for FISA Collection
Section 207 of the USA PATRIOT Act has been essential to protecting
the national security of the United States and protecting the civil
liberties of Americans. It changed the time periods for which
electronic surveillance and physical searches are authorized under FISA
and, in doing so, conserved limited OIPR and FBI resources. Instead of
devoting time to the mechanics of repeatedly renewing FISA applications
in certain cases--which are considerable--those resources can be
devoted instead to other investigative activity as well as conducting
appropriate oversight of the use of intelligence collection authorities
by the FBI and other intelligence agencies. A few examples of how
section 207 has helped arc set forth below.
Since its inception, FISA has permitted electronic surveillance of
an individual who is an agent of foreign power based upon his status as
a non-United States person who acts in the United States as ``an
officer or employee of a foreign power, or as a member'' of an
international terrorist group. As originally enacted, FISA permitted
electronic surveillance of such targets for initial periods of 90 days,
with extensions for additional periods of up to 90 days based upon
subsequent applications by the government. In addition, FISA originally
allowed the government to conduct physical searches of any agent of a
foreign power (including United States persons) for initial periods of
45 days, with extensions for additional 45-day periods.
Section 207 of the USA PATRIOT Act changed the law as to permit the
government to conduct electronic surveillance and physical search of
certain agents of foreign powers and nonresident alien members of
international groups for initial periods of 120 days, with extensions
for periods of up to 1 year. It also allows the government to obtain
authorization to conduct a physical search of any agent of a foreign
power for periods of up to 90 days. Section 207 did not change the time
periods applicable for electronic surveillance of United States
persons, which remain at 90 days. By making these time periods
equivalent, it has enabled the Department to file streamlined combined
electronic surveillance and physical search applications that, in the
past, were tried but abandoned as too cumbersome to do effectively.
As the Attorney General testified before the Senate Judiciary
Committee, we estimate that the amendments in section 207 have saved
OIPR approximately 60,000 hours of attorney time in the processing of
applications. Because of section 207's success, we have proposed
additional amendments to increase the efficiency of the FISA process.
Among these would be to allow coverage of all non-U.S. person agents
for foreign powers for 120 days initially with each renewal of such
authority allowing continued coverage for 1 year. Had this and other
proposals been included in the USA PATRIOT Act, the Department
estimates that an additional 25,000 attorney hours would have been
saved in the interim. Most of these ideas were specifically endorsed in
the recent report of the WMD Commission. The WMD Commission agreed that
these changes would allow the Department to focus its attention where
it is most needed and to ensure adequate attention is given to cases
implicating the civil liberties of Americans. Section 207 is scheduled
to sunset at the end of this year.
C. Pen Registers and Trap and Trace Devices
Some of the most useful, and least intrusive, investigative tools
available to both intelligence and law enforcement investigators are
pen registers and trap and trace devices. These devices record data
regarding incoming and outgoing communications, such as all of the
telephone numbers that call, or are called by, certain phone numbers
associated with a suspected terrorist or spy. These devices, however,
do not record the substantive content of the communications, such as
the words spoken in a telephone conversation. For that reason, the
Supreme Court has held that there is no Fourth Amendment protected
privacy interest in information acquired from telephone calls by a pen
register. Nevertheless, information obtained by pen registers or trap
and trace devices can be extremely useful in an investigation by
revealing the nature and extent of the contacts between a subject and
his confederates. The data provides important leads for investigators,
and may assist them in building the facts necessary to obtain probable
cause to support a full content wiretap.
Under chapter 206 of title 18, which--has been in place since 1986,
if an FBI agent and prosecutor in a criminal investigation of a bank
robber or an organized crime figure want to install and use pen
registers or trap and trace devices, the prosecutor must file an
application to do so with a Federal court. The application they must
file, however, is exceedingly simple: it need only specify the identity
of the applicant and the law enforcement agency conducting the
investigation, as well as ``a certification by the applicant that the
information likely to be obtained is relevant to an ongoing criminal
investigation being conducted--by that agency.'' Such applications, of
course, include other information about the facility that will be
targeted and details about the implementation of the collection, as
well as ``a statement of the offense to which the information likely to
be obtained . . . relates,'' but chapter 206 does not require an
extended recitation of the facts of the case.
In contrast, prior to the USA PATRIOT Act, in order for an FBI
agent conducting an intelligence investigation to obtain FISA authority
to use the same pen register and trap and trace device to investigate a
spy or a terrorist, the government was required to file a complicated
application under title IV of FISA. Not only was the government's
application required to include ``a certification by the applicant that
the information likely to be obtained is relevant to an ongoing foreign
intelligence or international terrorism investigation being conducted
by the Federal Bureau of Investigation under guidelines approved by the
Attorney General,'' it also had to include the following: information
which demonstrates that there is reason to believe that the telephone
line to which the pen register or trap and trace device is to be
attached, or the communication instrument or device to be covered by
the pen register or trap and trace device, has been or is about to be
used in communication with:
(A) an individual who is engaging or has engaged in
international terrorism or clandestine intelligence activities
that involve or may involve a violation of the criminal laws of
the United States; or
(B) a foreign power or agent of foreign power under
circumstances giving reason to believe that the communication
concerns or concerned international terrorism or clandestine
intelligence activities that involve or may involve a violation
of the criminal laws of the United States.
Thus, the government had to make a much different showing in order
obtain a pen register or trap and trace authorization to find out
information about a spy or a terrorist than is required to obtain the
very same information about a drug dealer or other ordinary criminal.
Sensibly, section 214 of the USA PATRIOT Act simplified the standard
that the government mast meet in order to obtain pen/trap data in
national security cases. Now, in order to obtain a national security
pen/trap order, the applicant must certify ``that the information lkely
to be obtained is foreign intelligence information not concerning a
United States person, or is relevant to an investigation to protect
against international terrorism or clandestine intelligence
activities.'' Importantly, the law requires that such an investigation
of a United States person may not be conducted solely upon the basis of
activities protected by the First Amendment to the Constitution.
Section 214 should not be permitted to expire and return us to the
days when it was mare difficult to obtain pen/trap authority in
important national security cases than in normal criminal cases. This
is especially true when the law already includes provisions that
adequately protect the civil liberties of Americans. I urge you to re-
authorize section 214.
D. Access to Tangible Things
Section 215 of the USA PATRIOT Act allows the FBI to obtain an
order from the FISA Court requesting production of any tangible thing,
such as business records, if the items are relevant to an ongoing
authorized national security investigation, which, in the case of a
United States person, cannot be based solely upon activities protected
by the First Amendment to the Constitution. The Attorney General also
declassified earlier this month the fact that the FISA Court has issued
35 orders requiring the production of tangible things under section 215
from the date of the effective date of the Act through March 30th of
this year. None of those orders was issued to libraries and/or
booksellers, and none was for medical or gun records. The provision to
date has been used only to order the production of driver's license
records, public accommodation records, apartment leasing records,
credit card records, and subscriber information, such as names and
addresses, for telephone numbers captured through court-authorized pen
register devices.
Similar to a prosecutor in a criminal case, issuing a grand jury
subpoena for an item relevant to his investigation, so too may the FISA
Court issue an order requiring the production of records or items that
are relevant to an investigation to protect against international
terrorism or clandestine intelligence activities. Section 215 orders,
however, are subject to judicial oversight before they are issued--
unlike grand jury subpoenas. The FISA Court must explicitly authorize
the use of section 215 to obtain business records before the government
may serve the order on a recipient. In contrast, grand jury subpoenas
are subject to judicial review only if they arc challenged by the
recipient. Section 215 orders arc also subject to the same standard as
grand jury subpoenas--a relevance standard.
Section 215 has been criticized because it does not exempt
libraries and booksellers. The absence of such an exemption is
consistent with criminal investigative practice. Prosecutors have
always been able to obtain records from libraries and bookstores
through grand jury subpoenas. Libraries and booksellers should not
become safe havens for terrorists and spies. Last year, a member of a
terrorist group closely affiliated with al Qaeda used Internet service
provided by a public library to communicate with his confederates.
Furthermore, we know that spies have used public library computers to
do research to further their espionage and to communicate with their
co-conspirators. For example, Brian Regan, a former TRW employee
working at the National Reconnaissance Office, who was convicted of
espionage, extensively used computers at five public libraries in
Northern Virginia and Maryland to access addresses for the embassies of
certain foreign governments.
Concerns that section 215 allows the government to target Americans
because of the books they read or websites they visit are misplaced.
The provision explicitly prohibits the government from conducting, an
investigation of a U.S. person based solely upon protected First
Amendment activity. 50 U.S.C. Sec. 1861(a)(2)(B). However, some
criticisms of section 215 have apparently been based on possible
ambiguity in the law. The Department has already stated in litigation
that the recipient of a section 215 order may consult with his attorney
and may challenge that order in court. The Department has also stated
that the government may seek, and a court may require, only the
production of records that are relevant to a national security
investigation, a standard similar to the relevance standard that
applies to grand jury subpoenas in criminal cases. The text of section
215, however, is not as clear as it could be in these respects. The
Department, therefore, is willing to support amendments to Section 215
to clarify these points. Section 215 also is scheduled to sunset at the
end of this year.
E. The ``Wall''
Before the USA PATRIOT Act, applications for orders authorizing
electronic surveillance or physical searches under F1SA had to include
a certification from a high-ranking Executive Branch official that
``the purpose'' of the surveillance or search was to gather foreign
intelligence information. As interpreted by the courts and the Justice
Department, this requirement meant that the ``primary purpose'' of the
collection had to be to obtain foreign intelligence information rather
than evidence of a crime. Over the years, the prevailing interpretation
and implementation of the ``primary purpose'' standard had the effect
of sharply limiting coordination and information sharing between
intelligence and law enforcement personnel. Because the courts
evaluated the government's purpose for using FISA at least in part by
examining the nature and extent of such coordination, the more
coordination that occurred, the more likely courts would find that law
enforcement, rather than foreign intelligence collection, had become
the primary purpose of the surveillance or search.
During the 1980's, the Department operated under a set of largely
unwritten rules that limited to some degree information sharing between
intelligence and law enforcement officials. In 1995, however, the
Department established formal procedures that more clearly separated
law enforcement and intelligence investigations and limited the sharing
of information between intelligence and law enforcement personnel even
more than the law required. The promulgation of these procedures was
motivated in part by the concern that the use of FISA authorities would
not be allowed to continue in particular investigations if criminal
prosecution began to overcome intelligence gathering as an
investigation's primary purpose. The procedures were intended to permit
a degree of interaction and information sharing between prosecutors and
intelligence officers while at the same time ensuring that the FBI
would be able to obtain or continue FISA coverage and later use the
fruits of that coverage in a criminal prosecution. Over time, however,
coordination and information sharing between intelligence and law
enforcement personnel became more limited in practice than was allowed
in reality. A perception arose that improper information sharing could
end a career, and a culture developed within the Department sharply
limiting the exchange of information between intelligence and law
enforcement officials.
Sections 218 and 504 of the USA PATRIOT Act helped to bring down
this ``wall'' separating intelligence and law enforcement officials.
They erased the perceived statutory impediment to more robust
information sharing between intelligence and law enforcement personnel.
They also provided the necessary impetus for the removal of the formal
administrative restrictions as well as the informal cultural
restrictions on information sharing.
Section 218 of the USA PATRIOT Act eliminated the ``primary
purpose'' requirement. Under section 218, the government may conduct
FISA surveillance or searches if foreign intelligence gathering is a
``significant'' purpose of the surveillance or search. This eliminated
the need for courts to compare the relative weight of the ``foreign
intelligence'' and ``law enforcement'' purposes of the surveillance or
search, and allows increased coordination and sharing of information
between intelligence and law enforcement personnel. Section 218 was
upheld as constitutional in 2002 by the FISA court of Review. This
change, significantly, did not affect the government's obligation to
demonstrate that there is probable cause to beliew that the target is a
foreign power or an agent of a foreign power. Section 504--which is not
subject to sunset--buttressed section 218 by specifically amending FISA
to allow intelligence officials conducting FISA surveillances or
searches to ``consult'' with Federal law enforcement officials to
``coordinate'' efforts to investigate or protect against international
terrorism, espionage, and other foreign threats to national security,
and to clarify that such coordination ``shall not'' preclude the
certification of a ``significant'' foreign intelligence purpose or the
issuance of an authorization order by the FISA court.
The Department moved aggressively to implement sections 218 and
504. Following passage of the Act, the Attorney General adopted new
procedures designed to increase information sharing between
intelligence and law enforcement officials, which were affirmed by the
FISA court of Review on November 18, 2002. The Attorney General has
also issued other directives to further enhance information sharing and
coordination between intelligence and law enforcement officials. In
practical terms, a prosecutor may now consult freely with the FBI about
what, if any, investigative tools should be used to best prevent
terrorist attacks and protect the national security. Unlike section
504, section 218 is scheduled to sunset at the end of this year.
The increased information sharing facilitated by the USA PATRIOT
Act has led to tangible results in the war against terrorism: plots
have been disrupted; terrorists have been apprehended; and convictions
have been obtained in terrorism cases. Information sharing between
intelligence and law enforcement personnel, for example, was critical
in successfully dismantling a terror cell in Portland, Oregon,
popularly known as the ``Portland Seven'' as well as a terror cell in
Lackawanna, New York. Such information sharing has also been used in
the prosecution of several persons involved in al Qaeda drugs-for-
weapons plot in San Diego, two of whom have pleaded guilty; nine
associates in Northern Virginia of a violent extremist group known as
Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and
sentenced to prison terms ranging from 4 years to life imprisonment;
two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and Molishen Yahya
Zayed, who were charged and convicted for conspiring to provide
material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who
was convicted by a jury in January 2004 of illegally acting as an agent
of the former government of Iraq as well as two counts of perjury; and
Enaam Arnaout, the Executive Director of the Illinois-based Benevolence
International Foundation, who had a long-standing relationship with
Osama Bin Laden and pleaded guilty to a racketeering charge, admitting
that he diverted thousands of dollars from his charity organization to
support Islamic militant groups in Bosnia and Chechnya. Information
sharing between intelligence and law enforcement personnel has also
been extremely valuable in a number of other ongoing or otherwise
sensitive investigations that we arc not at liberty to discuss today.
While the ``wall'' primarily hindered the flow of information from
intelligence investigators to law enforcement investigators, another
set of barriers, before the passage of the USA PATRIOT Act, often
hampered law enforcement officials from sharing information with
intelligence personnel and others in the government responsible for
protecting the national security. Federal law, for example, was
interpreted generally to prohibit Federal prosecutors from disclosing
information from grand jury testimony and criminal investigative
wiretaps to intelligence and national defense officials even if that
information indicated that terrorists were planning a future attack,
unless such officials were actually assisting with the criminal
investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however,
eliminated these obstacles to information sharing by allowing for the
dissemination of that information to assist Federal law enforcement,
intelligence, protective, immigration, national defense, and national
security officials in the performance of their official duties, even if
their duties arc unrelated to the criminal investigation. (Section
203(a) covers grand jury information, and section 203(b) covers wiretap
information.) Section 203(d), likewise, ensures that important
information that is obtained by law enforcement means may be shared
with intelligence and other national security officials. This provision
does so by creating a generic exception to any other law purporting to
bar Federal law enforcement, intelligence, immigration, national
defense, or national security officials from receiving, for official
use, information regarding foreign intelligence or counterintelligence
obtained as part of a criminal investigation. Indeed, section 905 of
the USA PATRIOT Act requires the Attorney General to expeditiously
disclose to the Director of Central Intelligence foreign intelligence
acquired by the Department of Justice in the course of a criminal
investigation unless disclosure of such information would jeopardize an
ongoing investigation or impair other significant law enforcement
interests.
The Department has relied on section 203 in disclosing vital
information to the intelligence community and other Federal officials
on many occasions. Such disclosures, for instance, have been used to
assist in the dismantling of terror cells in Portland, Oregon and
Lackawanna, New York and to support the revocation of suspected
terrorists' visas.
Because two provisions in section 203: sections 203(b) and 203(d)
are scheduled to sunset at the end of the year, we provide below
specific examples of the utility of those provisions. Examples of cases
where intelligence information from a criminal investigation was
appropriately shared with the Intelligence Community under Section
203(d) include:
Information about the organization of a violent jihad
training camp including training in basic military skills, explosives,
weapons and plane hijackings, as well as a plot to bomb soft targets
abroad, resulted from the investigation and criminal prosecution of a
naturalized United States citizen who was associated with an al-Qaeda
related group;
Travel information and the manner that monies were
channeled to members of a seditious conspiracy who traveled from the
United States to fight alongside the Taliban against U.S. and allied
forces;
Information about an assassination plot, including the use
of false travel documents and transporting monies to a designated State
sponsor of terrorism resulted from the investigation and prosecution of
a naturalized United States citizen who had been the founder of a well-
known United States organization;
Information about the use of fraudulent travel documents
by a high-ranking member of a designated foreign terrorist organization
emanating from his criminal investigation and prosecution revealed
intelligence information about the manner and means of the terrorist
group's logistical support network which was shared in order to assist
in protecting the lives of U.S. citizens;
The criminal prosecution of individuals who traveled to,
and participated in, a military-style training camp abroad yielded
intelligence information in a number of areas including details
regarding the application forms which permitted attendance at the
training camp; after being convicted, one defendant has testified in a
recent separate Federal criminal trial about this application practice,
which assisted in the admissibility of the form and conviction of the
defendants; and
The criminal prosecution of a naturalized U.S. citizen who
had traveled to an Al-Qaeda training camp in Afghanistan revealed
information about the group's practices, logistical support and
targeting information.
Title Ill information has similarly been shared with the
Intelligence Community through section 203(b). The potential utility of
such information to the intelligence and national security communities
is obvious: suspects whose conversations arc being monitored without
their knowledge may reveal all sorts of information about terrorists,
terrorist plots, or other activities with national security
implications. Furthermore, the utility of this provision is not
theoretical: the Department has made disclosures of vital information
to the intelligence community and other Federal officials under section
203(b) on many occasions, such as:
Wiretap interceptions involving a scheme to defraud donors
and the Internal Revenue Service and illegally transfer monies to Iraq
generated not only criminal charges but information concerning the
manner and means by which monies were funneled to Iraq; and
Intercepted communications, in conjunction with a sting
operation, led to criminal charges and intelligence information
relating to money laundering, receiving and attempting to transport
night-vision goggles, infrared army lights and other sensitive military
equipment relating to a foreign terrorist organization.
Section 203 is also critical to the operation of the National
Counterterrorism Center. The FBI relies upon section 203(d) to provide
information obtained in criminal investigations to analysts in the new
National Counterterrorism Center, thus assisting the Center in carrying
out its vital counterterrorism missions. The National Counterterrorism
Center represents a strong example of section 203 information sharing,
as the Center uses information provided by law enforcement agencies to
produce comprehensive terrorism analysis; to add to the list of
suspected terrorists on the TIPOFF watchlist; and to distribute
terrorism-related information across the Federal Government.
In addition, last year, during a series of high-profile events--the
G-8 Summit in Georgia, the Democratic Convention in Boston and the
Republican Convention in New York, the November 2004 Presidential
election, and other events--a task force used the information sharing
provisions under Section 203(d) as part and parcel of performing its
critical duties. The 2004 Threat Task Force was a successful inter-
agency effort where there was a robust sharing of information at all
levels of government.
F. Protecting Those Complying with FISA Orders
Often, to conduct electronic surveillance and physical searches,
the United States requires the assistance of private communications
providers to carry out such court orders. In the criminal context,
those who assist the government in carrying out wiretaps arc provided
with immunity from civil liability. Section 225, which is set to
sunset, provides immunity from civil liability to communication service
providers and others who assist the United States in the execution of
FISA orders. Prior to the passage of the USA PATRIOT Act, those
assisting in the carrying out of FISA orders enjoyed no such immunity.
Section 225 simply extends the same immunity that has long existed in
the criminal context to those who assist the United States in carrying
out orders issued by the FISA court. Providing this protection to
communication service providers for fulfilling their legal obligations
helps to ensure prompt compliance with FISA orders.
CONCLUSION
It is critical that the elements of the USA PATRIOT Act subject to
sunset in a matter of months be renewed. Failure to do so would take
the Intelligence Community and law enforcement back to a time when a
full exchange of information was not possible and the tools available
to defend against terrorists were inadequate. This is unacceptable. The
need for constant vigilance against terrorists wishing to attack our
Nation is real, and allowing USA PATRIOT Act provisions to sunset would
damage our ability to prevent such attacks.
We thank the Committee for the opportunity to discuss the
importance of the USA PATRIOT Act to this nation's ongoing war against
terrorism. This Act has a proven record of success in protecting the
American people. Provisions subject to sunset must be renewed. We look
forward to working with the Committee in the weeks ahead. We appreciate
the Committee's close attention to this important issue. We would be
pleased to answer any questions you may have. Thank you.
STATEMENT OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY
GENERAL OF THE UNITED STATES
Attorney General Gonzales. Thank you, Mr. Chairman.
Chairman Roberts, Vice Chairman Rockefeller, Members of
this Committee, I am pleased to be here to talk about
reauthorization of the PATRIOT Act. I really appreciate this
opportunity to come before Congress to discuss our successes in
the war on terror and to find new ways to fight for freedom
more effectively and consistent with the values that we all
cherish as Americans.
As the distinguished Members of this Committee know, the
threat of terrorism remains very serious and it is critical
that Congress continues to provide tools that enable
prosecutors and law enforcement to both confront terrorism and
investigate and prosecute other serious crimes.
I believe the authorities in the PATRIOT Act have enabled
us to better protect America. But, the exercise of government
authority is always worthy of respectful and accurate
discussion. I'm open to suggestions for strengthening and
clarifying the Act, but I cannot support amendments that will
weaken our ability to protect our nation.
The PATRIOT Act, as we know, has helped dismantle the wall
that used to separate law enforcement from intelligence
officials. Prior law, as interpreted and implemented, sharply
limited the ability of law enforcement and intelligence
officers to share information and connect the dots in terrorism
and espionage investigations.
As we know, section 203 and section 218 of the PATRIOT Act,
which are scheduled to sunset at the end of this year, brought
down this wall. And together these provisions have reduced the
statutory and cultural barriers to information sharing. And it
is information sharing, as the 9/11 Commission and the WMD
Commission made clear, and as this Committee knows full well,
that will make the difference in our ongoing efforts to prevent
terrorism.
This Committee is familiar with the successful use of
section 218, including investigation of the Portland Seven and
the Virginia Jihad. Section 203 along with section 218 was used
extensively during the investigation of the Holy Land
Foundation in 2004. Law enforcement professionals tell me that
allowing sections 203 and 218 to expire would discourage
information sharing, making it more difficult for us to disrupt
terrorist plots.
There are other similar commonsense PATRIOT Act provisions
that also will expire if Congress does not take action. Section
206, which provides national security investigators with an
authority long possessed by criminal investigators, authorizes
the use of multi-point or roving wiretaps, tied to a specific
target rather than a specific communications facility. Before
the PATRIOT Act these orders were not available for a national
security investigation under FISA, a gap in the law that we
believe sophisticated terrorists or spies could easily exploit.
Although specific examples of the use of multi-point wiretaps
under section 206 remain classified, I can represent in this
open hearing that this authority has been very valuable.
As of March 30 this year we have used this authority 49
times. Importantly, 206 contains numerous safeguards to protect
civil liberties. The FISA court can only issue a roving wiretap
order upon a finding of probable cause, the order must always
be connected to a particular target, and minimization
procedures must be followed concerning the collection, the
retention and dissemination of information about U.S. persons.
Section 215 also filled a gap in the law. It granted
national security investigators authority to seek a court order
for the production of records relevant to a foreign
intelligence investigation, similar to a prosecutor's authority
to use grand jury subpoenas as the building blocks of criminal
investigations. Use of this provision has been judicious. We
have used this authority 35 times as of March 30 of this year.
Moreover, we have not sought a Section 215 order to obtain
library or bookstore records, medical records, or gun sale
records. Let me be clear, the reading habits of ordinary
Americans are of no interest to those investigating terrorists
or spies.
Section 213, although not scheduled to sunset is another
valuable provision of the PATRIOT Act. Section 213 codified one
consistent process and standard for delayed notice search
warrants, which can be used in limited circumstances, with
judicial approval, to avoid tipping off criminals who otherwise
might flee, destroy evidence, intimidate or kill witnesses,
cutoff contact with associates, or take other action to evade
arrest.
Now the portion of Section 213 that has received the most
attention is the provision allowing a court to authorize
delayed notice if immediate notice would ``seriously
jeopardize'' an investigation. I would like to describe one
actual case where immediate notice would have seriously
jeopardized an investigation.
In this case, the Justice Department obtained a delayed
notice search warrant for a Federal Express package that
contained counterfeit credit cards. At the time of the search
it was very important not to disclose the existence of a
Federal investigation, as this would have exposed a related
Title III wiretap that was ongoing for major drug trafficking
activities. An organized crime drug enforcement task force,
which included agents from the DEA, the IRS, the Pittsburgh
police department and other State and local agencies was
engaged in a multi-year investigation that resulted in the
indictment of the largest drug trafficking organization ever
prosecuted in the western district of Pennsylvania.
While the drug trafficking investigation was ongoing it
became clear that several leaders of the drug trafficking
conspiracy had ties to an ongoing credit card fraud operation.
An investigation into the credit card fraud was undertaken and
a search was made of a Federal Express package that contained
fraudulent credit cards. Had notice of the Federal Express
search tied to the credit card fraud investigation been
immediately given, it could have revealed the ongoing drug
trafficking investigation prematurely and the drug trafficking
investigation might have been seriously jeopardized. Even
modest delay would not have been available if this provision of
section 213 were deleted. It is critical that law enforcement
continue to have this vital tool for those limited
circumstances where a court finds good cause to permit the
temporary delay of notification of a search.
Finally, I'd like to close by addressing a common question
that must be answered by this Committee and this Congress--the
issue of whether we should continue to impose sunset provisions
on critical sections of the PATRIOT Act. The PATRIOT Act was a
swift and decisive response to the attacks of September 11. In
the weeks and months following the attacks in Washington,
Pennsylvania, and New York, Democrats and Republicans came
together to address the vulnerabilities in our nation's
defenses.
Both Congress and the administration worked with
experienced law enforcement, intelligence and national security
personnel to design legislation to better protect the American
people. Although there was extensive consideration in 2001, and
although it is unusual to impose sunsets on statutory
investigative tools, Congress included sunsets for certain
provisions of the PATRIOT Act because Members wanted to ensure
that we were not risking the very liberties we were setting out
to defend. And I think today we can all be proud.
The track record established over the past 3 years has
demonstrated the effectiveness of the safeguards of civil
liberties put in place when the Act was passed. There has not
been one verified case of civil liberties abuse. Our Nation is
stronger and safer; our bipartisan work has been a success.
The Department of Justice has exercised care and restraint
in the use of these important authorities because we are
committed to the rule of law. We have followed the law because
it is the law, not because it is scheduled to sunset. With or
without sunsets, our dedication to the rule of law will
continue. The Department will strive to continue to carry out
its work lawfully and appropriately, and as a citizen I expect
Congress will continue its active oversight over our use of the
PATRIOT Act, not because it sunsets but because oversight is a
constitutional responsibility of Congress.
So, given the Department's record in using these
authorities, the obvious effectiveness of these tools in
stopping violent crimes and protecting our nation, and the
authority of Congress to re-examine these provisions at any
time to correct abuses, the sunset provisions are, in my
judgment, no longer necessary and should be repealed.
The authorities in the PATRIOT Act are critical to our
nation's efforts in the war against terrorism. The Act has a
proven record of success in protecting the security of the
American people while simultaneously respecting civil
liberties. And I question how we can afford to allow its most
important provisions to sunset. The efforts of the terrorists
to strike our country surely will not sunset.
I look forward to continuing to work with this Committee in
the period ahead, listening to and responding to your concerns,
and joining together again to protect the security of the
American people.
Thank you, Mr. Chairman.
Chairman Roberts. Thank you, General.
We now recognize Director Mueller. Welcome back to the
Committee, Bob.
STATEMENT OF THE HONORABLE ROBERT S. MUELLER, III, DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION
Director Mueller. Thank you, and good morning, Mr.
Chairman. Senator Rockefeller, and other Members of the
Committee, good morning. I'm also pleased to be here today to
talk about the PATRIOT Act and how it has assisted us in the
war on terror.
Indeed, the PATRIOT Act has changed the way the FBI
operates, and I will say that many of our operational
counterterrorism successes since September 11 are the direct
result of the changes incorporated in the PATRIOT Act. The
formal statement that was submitted by the Attorney General and
myself focuses on the key areas and the key uses of the FISA
authorities in the war on terrorism. And as is set forth in
that statement, I share the Attorney General's belief that
these vital tools that have been used regularly and effectively
in our efforts to prevent another attack should be renewed.
This morning I would like to emphasize the importance of a
portion of the PATRIOT Act, that portion that relates to
information-sharing, and address the fundamental manner in
which those provisions have changed the way we do business.
Last week I know this Committee heard directly from our
operational personnel, who provided in a classified setting
specific examples of how the PATRIOT Act information-sharing
provisions have altered the landscape for conducting terrorism
investigations. The Committee heard not only from FBI
headquarters and FBI field office personnel but also from our
partners in the CIA and our partners at the NSA about the
coordinated teamwork approach that has guided our operations
over the past 3 years.
Such interagency teamwork has successfully foiled
terrorist-related operations and cells from Seattle to Detroit
to Lackawanna, New York. And while the law prior to the PATRIOT
Act provided for some exchange of information, that law was
complex and, as a result, agents often erred on the side of
caution and refrained from sharing information.
Our current integrated approach, which grew from the
PATRIOT Act's information-sharing provisions, eliminated that
hesitation and now allows agents to more openly work with other
governmental agencies, whether they be at the Federal, the
State or the local level.
Prior to the PATRIOT Act, the Federal law was interpreted
to limit the ability of our criminal investigators to disclose
criminal wiretap or grand jury information to counterparts
working on intelligence investigations. Sections 203(a) and (b)
of the PATRIOT Act eliminated these barriers to information
sharing, allowing for the routine sharing of information
derived from these important criminal tools. And section 203(b)
ensures that information developed through law enforcement
methods other than grand jury subpoenas or criminal wiretaps
can also be shared with our intelligence partners at the
Federal, State and local levels, as well as our partners
overseas.
Although information does not flow between agencies with a
PATRIOT Act label on it, it is quite clear that information
derived from the FBI's investigations is now assisting other
agencies in performing their missions, principally overseas. As
an example, an FBI field office obtained information of
intelligence value while conducting a criminal investigation
and shared this information with the CIA and other intelligence
entities. In this particular investigation, a Title III
intercept showed that the subject of the investigation was in
contact with an overseas number.
Taking that number, investigation undertaken by the CIA and
others determined links between this number and a number
associated with a subject of a terrorism investigation who had
been captured. This sharing of information permitted additional
investigation by each of the intelligence community components,
integrating information that had been found and put together in
the United States with information that had been found and put
together overseas.
This sharing of information is absolutely fundamental to
the safety of the American public in the future. And while
section 203 removed barriers to sharing criminally-derived
information with our intelligence community partners, section
218 of the PATRIOT Act was the first step in dismantling the
wall between the criminal and our intelligence investigators.
It eliminated the primary purpose requirement that arose from
statutory interpretation by the FISA court and replaced it with
a ``significant purpose'' test. As a result, FBI agents working
on intelligence and counterintelligence matters now have
greater latitude to consult criminal investigators or
prosecutors without putting their investigations at risk.
The increased coordination and information sharing between
intelligence and law enforcement agents facilitated by the
PATRIOT Act has allowed us, the FBI, to approach our cases as a
single integrated investigation using all of its tools, both
criminal and intelligence, as long as the requirements for each
of those tools are properly met. The successes of these cases
are entirely dependent on the free flow of information between
respective investigators and analysts.
Mr. Chairman, I would like to close with making one point
that I do think has been not fully amplified in the debate, in
the public debate, on the PATRIOT Act and its tools, and that
is the role of the Federal judiciary. For example, the FBI must
seek authority from a Federal judge to utilize a roving wiretap
and that judge must find that there is probable cause to
believe that the target of the surveillance is either a foreign
power or an agent of a foreign power, such as a terrorist or a
spy.
If the name of the individual on whom we are seeking roving
surveillance is not known to us, we must provide a description
of the individual and that person's activities to satisfy a
Federal judge that, again, there is probable cause to believe
that this person is a terrorist or a spy and that his actions
may have the effect of thwarting surveillance.
Similarly, under 215, the FBI does not write a warrant
authorizing access to business records; rather, it is a Federal
judge that issues the order upon a certification by the
government that the items requested are relevant to an ongoing
national security investigation. And finally a judge authorizes
the government to conduct a search, and only the Federal judge
can then authorize the government to delay notification, upon
making of a showing--delay notification to the subject of that
search.
Mr. Chairman, the role of the Federal judiciary is vital to
protecting the rights of individuals, particularly where more
intrusive means of investigation are utilized. In addition to
the oversight by Federal judges, the activities of the FBI and
DOJ prosecutors are always tethered to the Constitution, and we
take our responsibility exceptionally seriously.
As the Attorney General has already noted, I as well am
unaware of any substantiated allegation that the government has
abused its authority under the PATRIOT Act. This is a tribute
to the men and women in Federal law enforcement and the men and
women in the intelligence community as well as the Federal
prosecutors, all of whom are committed to responsibly using the
statutes provided by Congress. In renewing these provisions
scheduled to sunset at the end of this year, Congress will
ensure that the FBI will continue to have the tools we need to
combat the very real threat to America posed by terrorists and
their supporters.
Thank you for the opportunity to appear here today. I'm
happy to answer any questions.
Chairman Roberts. Mr. Director, we thank you very much for
a comprehensive statement.
We now recognize Director Goss.
[The prepared statement of Director Goss follows:]
Prepared Statement of Porter J. Goss
Good morning, Mr. Chairman, Mr. Vice Chairman, and Members of the
Committee.
I appreciate the opportunity to appear before you today to discuss
the important role the USA PATRIOT Act has played in improving the
ability of the Intelligence Community to fight the global war on
terrorism. As you recall, in October 2001, Members of Congress worked
together in a united effort to create legislation that would give
Federal law enforcement and intelligence officials the additional legal
authorities needed to combat the terrorist threat to our country. I can
assure you that the tools you provided in the PATRIOT Act have greatly
assisted intelligence officials in the on-going effort to interdict and
disrupt terrorist groups and individuals who seek to do harm to our
country and our citizens. I will now briefly discuss how the PATRIOT
Act has been most helpful to intelligence officers, and, along with my
colleagues, the Attorney General, and the Director, FBI, urge you to
renew permanently those provisions of the Act due to expire at the end
of this year.
INFORMATION SHARING
The PATRIOT Act has played a large role in an information-sharing
transformation throughout the Federal law enforcement and intelligence
communities, permitting a cultural shift in previously unshakeable
paradigms. Today, intelligence officers have the ability to receive
foreign intelligence information from Federal law enforcement officials
that has been obtained during the course of criminal investigations,
and the PATRIOT Act makes it clear that this information may include
information obtained from grand jury proceedings and criminal
investigative wiretaps. If the various provisions of the PATRIOT Act
that authorize this foreign intelligence information sharing are
permitted to sunset, we will lose some of the essential weapons used to
counter the grave threats posed by al-Qaeda and other terrorist groups.
Now is not the time to engage in unilateral disarmament.
Of particular concern is the ``wall'' that served to limit the
sharing of information between intelligence and law enforcement
officers. The wall was a barrier against full and discerning dialog and
greatly impinged on the effective use of critical tools necessary to
fight terrorism. Continuation of the PATRIOT Act information sharing
provisions ensures while we do not hamstring ourselves in this vital
area of intelligence and law enforcement collaboration we will also
take the appropriate steps to protect the privacy rights and civil
liberties of Americans.
If the information sharing provisions of the PATRIOT Act are
permitted to expire, currently robust information sharing relationships
may be adversely impacted as officials seek guidance on what
information sharing is permitted absent the PATRIOT Act authorities,
because the clarifying and instructive benefits of the PATRIOT Act will
be lost. As any war-fighter will tell you, a necessary tool in fighting
the battle is the ability to share information freely to get the job
done expeditiously and effectively. Constructs that otherwise preclude
information sharing had to be torn down, and the PATRIOT Act provisions
accomplished that end. Resurrection of these obstacles will
significantly impede the war effort.
If, however, the provisions scheduled to sunset are renewed,
ongoing efforts by government officials to use the PATRIOT Act
authorities to improve information sharing, to utilize highly valuable
limited resources most effectively, and to continue the cooperation
between agencies, will continue. One of the most positive illustrations
of this collaborative environment may be found in the National
Counterterrorism Center (NCTC).
NCTC is a specific example of how the information-sharing
authorities of the PATRIOT Act have been leveraged to benefit the
Federal Government as a whole.
NCTC personnel assigned from multiple Federal law
enforcement and intelligence community entities receive foreign
intelligence information from the FBI that is obtained by the
Bureau during criminal investigations and disseminated to NCTC
under authorities granted by the PATRIOT Act.
This information is compiled with other foreign
intelligence information obtained through traditional
intelligence collection methods and is used to produce all-
source terrorism analysis that is subsequently disseminated
throughout the Intelligence Community and to officers within
the Department of Homeland Security and the FBI.
NCTC officials also use terrorist identity
information disseminated by Federal law enforcement officials
under PATRIOT Act authorities to maintain TIPOFF, a data base
used to prevent known and suspected terrorists from entering
the United States. NCTC officials estimate that the number of
known or suspected terrorists that have been intercepted at US
borders, based on FBI reporting alone, has increased due to the
information sharing provisions of the PATRIOT Act.
In addition to talking about the information sharing provisions
that are due to expire in a few months, I wanted to also highlight the
importance of another information sharing authority in the PATRIOT Act.
This provision, section 905 of the Act, not only permits, but also
generally requires the Attorney General to expeditiously disclose to
the DCI, and now to the DNI under the Intelligence Reform Act of 2004,
foreign intelligence information acquired by the Department of Justice
during the course of criminal investigations. This provision, like the
expiring information sharing provisions, encourages the free flow of
intelligence information by removing any doubt from the minds of
Federal law enforcement officials that sharing is authorized.
FISA PRIORITIZATION
My colleagues from the Department of Justice will discuss with you
how Federal law enforcement officials have benefited from amendments
made to the Foreign Intelligence Surveillance Act (FISA) by the PATRIOT
Act. I would like to advise you how authority granted by the PATRIOT
Act has enabled the DCI to improve the process for submitting FISA
requests to the Attorney General and the Foreign Intelligence
Surveillance Court.
The PATRIOT Act called upon the DCI to establish requirements and
priorities for foreign intelligence information to be collected under
the FISA and to assist the Attorney General with the dissemination of
FISA-derived intelligence. The DNI is now charged with these
responsibilities under the Intelligence Reform and Terrorism Prevention
Act of 2004.
In June 2003, the DCI implemented this provision of the PATRIOT Act
by creating an interagency panel to prioritize requests seeking
authorization to engage in foreign intelligence collection operations
under the FISA. The panel, coordinated by the ADCI for Collection,
includes representatives from the CIA, DOJ, FBI, and NSA. The
prioritization mechanisms established by the panel are working well and
have enabled intelligence officials to carefully weigh and accommodate
competing priorities for FISA-authorized collection operations, making
the best use of the limited resources of the FBI, NSA, CIA, and the
Department of Justice, and most specifically, the FISA Court.
CONCLUSION
Let me conclude my comments today by saying that the PATRIOT Act
has improved the ability of intelligence officials to fight the war on
terrorism by removing legal and cultural impediments that previously
prohibited or discouraged the sharing of foreign intelligence obtained
by Federal law enforcement officials during the course of criminal
investigations, and by enhancing the ability of the intelligence and
law enforcement communities to collect and analyze vital information to
wage an effective and continuing effort to disrupt international
terrorist activities. Failure to renew the provisions due to sunset
will ill-serve the national security of the United States.
I thank you for inviting me to speak with you today, and for your
continued support.
STATEMENT OF THE HONORABLE PORTER J. GOSS, DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
Director Goss. Thank you, Mr. Chairman. Good morning. Good
morning, Mr. Vice Chairman, Members of the Committee.
I would propose that I ask, in the interest of time and not
to repeat some things that I would like to say that have
already been said, that you would accept my full statement and
allow me to abbreviate it.
Chairman Roberts. Without object it is so ordered, and your
request is gladly approved.
Director Goss. I thank you.
I do associate myself very much with the statements made by
the Attorney General and the Director of the FBI. There are a
couple points I would like to make as the Director of the
Central Intelligence Agency, although I would also be very
happy to answer questions as the DCI, which I was when some of
this material was going on, and I have had the responsibility
of signing FISA requests and a somewhat different role in that
position, which now Ambassador Negroponte, of course, has
assumed.
I would simply say that it is extremely important for us
not to under-emphasize the information sharing, the
coordination, cooperation, change of cultures, breaking down of
walls, breaking of stovepipes, if you will. Remember how much
time was spent by Members of Congress and various Committees,
oversight boards, specially set-up commissions, independent
commissions, and so forth, after 9/11 that said we must work
better together.
And there is no question that the manifestation of that has
been made possible by the PATRIOT Act in enterprises such as
TTIC, the Terrorist Threat Integration Center, which has now
graduated into the National Counterterrorism Center, which is
probably a showcase of where we can point out how we bring
information together and how it works well for the safety of
our country in dealing with the terrorist threat.
Obviously I am here today representing the national foreign
intelligence program as seen through the CIA's eyes and there
is a lot I will not be able to say in open session but I am
very happy to talk about in closed session.
Certainly, sources and methods are involved in the PATRIOT
Act, in our programs, but authorities are appropriate for us to
discuss. These authorities are particularly essential for the
intelligence community, in particular 203(d) and 214. These
represent areas in sharing, breaking down the ``wall'' that has
been referred to already--and talk a little bit about
modernization, of being able to keep up with the advantages we
have to deal with terrorists using technology as it exists
today, which, of course, the terrorists are taking advantage
of. We need to be able to deal with that, counter that, and get
ahead of it for our own purposes.
I think those two provisions, from our perspective, are
critically important, although I would suggest that the PATRIOT
Act has served this country extremely well across the board.
And I also am not aware of any serious problems with it in
terms of invasion of rights or liberties.
I do admire the safeguards that Director Mueller has
referred to. I have spent some time coming in and signing FISA
requests as the DCI. There is a clear need to prioritize and
understand each request, understand what is going on. I think
that process works well. I'm not sure what other testimony has
been on that, but my testimony on it is that it works timely;
it works well. It deals with the crush of business, as it were,
on a prioritization basis, which is very important. And it does
provide fresh eyes.
In my case, I must have looked at a couple of dozen things
that I hadn't seen before because somebody else had signed them
or they had come in under a different channel, and I was very
satisfied that this process was working exactly the way any
American would want it, which would be to stay out of their
business but to be applied to people who are trying to infringe
our liberties and damage our people, innocent people, from far
shores--people we call terrorists.
So I think this is a very good use of time, Mr. Chairman,
to be reviewing this matter and being suggestive of the
position that we've got a success here; perhaps we could make
it a little better. But I certainly don't want to give away the
tools that, I can assure you, the intelligence community is
using well.
Thank you, sir.
Chairman Roberts. Senators will be recognized for 5 minutes
in the order of their arrival and there will be a second round,
if needed.
I have a question in regards to administrative subpoenas.
In the past, the President and Director Mueller have asked
Congress to authorize the FBI to issue what's called an
administrative subpoena in international terrorism
investigations. If the government can use administrative
subpoenas in health care fraud investigations and in drug
cases, then the obvious question is why can't we use them in
the international terrorism investigations. It seems to me that
the administrative subpoena tool should be available for all
authorized national security investigations that are conducted
in accordance with the Attorney General guidelines, not just
terrorism cases.
I was surprised, however, that the prepared statement by
the Department of Justice and the FBI does not echo these
earlier requests for administrative subpoenas. Has the
President changed his mind on this issue? That's my first
question.
Attorney General Gonzales, are you in favor of Congress
authorizing the administrative subpoena in national security
investigations? And I would also pose the same question to
Director Mueller.
General.
Attorney General Gonzales. Mr. Chairman, the President has
not changed his position. We believe administrative subpoenas
would be an additional valuable tool to deal with the terrorist
threat. And so I want to reassure the Committee that we
continue to believe that that is a necessary tool and would
respectfully request a serious consideration of that request.
Chairman Roberts. Director Mueller.
Director Mueller. Certainly, yes, we believe that it would
be an exceptionally helpful tool in filling the gaps in getting
us the information we need in our national security
investigations. I will say that I spent a substantial amount of
time on that in our prepared statement before the Judiciary
Committee. It was in looking at a sense of brevity that I did
not mention it in my opening remarks.
But yes, we continue to press for administrative subpoenas.
We think it is a very useful tool. As you have pointed out, Mr.
Chairman, if it is available in health care fraud cases, child
pornography cases, narcotics cases--I think there are
approximately 300 separate statutes to provide for the utility
or the use of administrative subpoenas--it makes very good
sense for us to have that tool available when it comes to
national security investigations.
Chairman Roberts. I thank you both for your responses.
We're in the process of finishing up our audit report on
the FISA process. One of the things that we have found out was
that the Department of Justice and the FBI--I don't know what
grade I would give it, but it's not a 92; it doesn't rate that
high; maybe 70, passing, I'm not quite sure--of implementing
the FISA business records provisions, section 215 of the
PATRIOT Act, took more than 2\1/2\ years to issue the first
application.
Regardless, your joint statement indicates that
approximately 35 FISA--I think maybe you said 39--business
record court orders have been issued since then, and most of
these were issued for telephone numbers captured through the
court-authorized pen registers. My question to you is, why
isn't this technique being used more?
Director Mueller. Well, we have the possibility in some
areas of using National Security Letters, as you're well aware.
Chairman Roberts. Yes.
Director Mueller. We have, in those cases where it's being
handled jointly as an intelligence as well as perhaps a grand
jury investigation, it may well be that we're using grand jury
subpoenas. But in those areas where 215 fills the void, we have
gone through the 215 process.
If you're comparing on the one hand the use of the 215
process and the administrative subpoena process, they're night
and day. The fact of the matter is, the 215 process is somewhat
burdensome. Nonetheless, that is the way the PATRIOT Act
established it. It does go before a judge. So we have had,
particularly in the last couple of years, occasions where we
have utilized that tool.
Attorney General Gonzales. Mr. Chairman, I think one
message that we would like to leave with the Committee today is
that we take all these authorities very seriously and we try to
act responsibly and judiciously in exercising these
authorities. If we need to exercise a 215 authority, it will be
exercised. If we don't need to exercise it, because there are
other ways of getting information, we'll pursue other avenues.
Chairman Roberts. I have a yellow light here, but I'm going
to try to sneak the last question in, with apologies to my
colleagues.
Mr. Attorney General and Director Mueller, at a hearing we
held last week, the FBI's investigation of Brandon Mayfield was
cited as an abuse of the PATRIOT Act. I know that your answer
might be circumscribed somewhat by the fact that there's a
pending lawsuit over this case. But could you please respond to
that allegation?
Attorney General Gonzales. I'd be happy to, Mr. Chairman.
You're right; I am limited in what I can say. We have done
an exhaustive review of the allegations made by communication
from the ACLU to Senator Feinstein specifically about Brandon
Mayfield. I am told there was not an abuse of the PATRIOT Act.
There are misimpressions about what authorities were in fact
used in connection with that investigation. People have the
mistaken belief that the section 213 authority, delayed
notification search warrant, was used there, but that's not the
case. It was a straightforward FISA application in connection
with that case.
I think we all need to understand, though, when people ask
the question, was the PATRIOT Act implicated or used at all in
connection with that investigation, sure it was, to the extent
that FISA was amended by the PATRIOT Act in areas of
information sharing like 218.
And so to the extent that the PATRIOT Act caused changes in
FISA, then clearly it was implicated. But from what we can
tell, there was no abuse or misuse of the PATRIOT Act in
connection with that investigation.
Chairman Roberts. So if somebody makes a mistake on a
fingerprint, that isn't the fault of the PATRIOT Act?
Attorney General Gonzales. That was not the fault of the
PATRIOT Act, that's correct, sir.
Chairman Roberts. Senator Rockefeller.
Vice Chairman Rockefeller. Thank you, Mr. Chairman.
In section 206--I address this to both of you in that you
gave joint testimony--section 206 of the PATRIOT Act authorizes
roving wiretaps under the Foreign Intelligence Surveillance
Act. As it has been explained to us, the SAFE Act would retain
roving wiretaps, allowing surveillance where the target, for
example, uses multiple cell phones in order to evade detection.
And the SAFE Act would retain John Doe wiretaps where the
target cannot be named. But the SAFE Act would eliminate the
combination of the two--John Doe, roving wiretaps--where
neither the location of the surveillance nor the identity of
the target is known.
So my question is, what would be the impact of this
provision on the activities of the Bureau? And second, would
the elimination of the John Doe roving wiretaps increase the
protection of innocent Americans from unnecessary surveillance?
And third, what protection against unnecessary surveillance
exists in the statute as written?
Attorney General Gonzales. Senator, let me begin by
emphasizing that we have to go before a Federal judge in order
to get a search warrant under 206. There has to be probable
cause that the target is in fact a foreign power or an agent of
a foreign power. In addition, 206 does include extensive
minimization procedures so that we do ensure that steps are
taken to protect the rights of innocent Americans.
I believe that under 206 we have to go to a Federal judge
and provide sufficient information to identify a specific
target. There may be instances where we don't know the exact
identity of someone we believe is a terrorist. Nonetheless, we
have to provide sufficient information for the judge to
identify that person. If we discover later on that we've made a
mistake, that in fact we should be conducting surveillance on
Person B as opposed to Person A because we were wrong in our
identification, we'd have to go back to a Federal judge and get
a new court order.
Additionally, I'd like to add that we also have to have
probable cause that the facility that we want to target or
place that we want to target, that the terrorist is either
using or about to use. And so we believe that 206 contains an
abundant number of safeguards to ensure that we've got a
limited search under the supervision of a Federal judge and
that there are adequate safeguards to protect the privacy
interests of Americans.
Director Mueller. The recommended change does not make much
sense to me. As was pointed out by the Attorney General, if we
have an individual whom we accurately can describe, to
differentiate that individual from everybody else, and the
person is an individual which would satisfy the requisite
specificity so that a judge can issue the order allowing us to
intercept his conversations, and the person is roving--in other
words, utilizing a number of cell phones over a period of
days--what this statute would mean is that we would have to go
back when we identify another device that he's using and get
another court order.
If we satisfy the prerequisites of 206 as it is written
now, in my mind that is certainly an adequate safeguard to
protect the innocent. Again, I'd emphasize, it goes before a
judge; you have to be specific in terms of the individual, and
you have to be specific in terms of the usage of that
individual of various devices. And persuading a judge that you
have probable cause to satisfy those prerequisites in my mind
satisfies the need to protect the innocent.
Vice Chairman Rockefeller. OK. I'll save my next questions
for the next round.
Thank you very much.
Chairman Roberts. Senator Levin.
OPENING STATEMENT OF HON. CARL LEVIN
Senator Levin. Thank you, Mr. Chairman. Let me add my
welcome to all three of you and my thanks for your service.
The morning paper tells us that the State Department has
decided to drop from its annual report the number of serious
international terrorist incidents that occurred during the
previous year. It's a very disturbing report to us.
This law requiring an annual report on terrorist incidents
has been on the books for a long time, long before 9/11. But
suddenly we read the State Department has decided they're no
longer going to tell the American people what the numbers of
those incidents were in the previous year; they're going to
drop that information.
I'm wondering whether--and I'll ask each of you--whether or
not you were consulted by the State Department prior to this
important information being dropped, or at least the decision
being made by them to drop it and to suppress information which
is really significant in many people's eyes to understanding
whether or not we are making progress.
So General, let me start with you. Were you consulted by
the State Department on that issue?
Attorney General Gonzales. Senator, I was not personally
consulted; whether or not the department was consulted, I'd
have to find out. But I was not personally consulted.
Senator Levin. Fair enough.
Director Mueller.
Director Mueller. I was not. I was not involved in the
issue. But I'm not certain I would agree with the predicate of
the question.
Senator Levin. I understand.
Director Goss.
Director Goss. I believe my role was pretty much limited to
making sure that whatever the NCTC had was made available to
the State Department.
Senator Levin. Thank you.
Let me first thank you, General Gonzales, for your strong
statement of support for oversight by Congress, calling it a
constitutional responsibility. You disagree on whether or not
sunset was needed. But nonetheless, in terms of the importance
of oversight, you made a very ringing endorsement of that and
we appreciate that.
And Director Mueller, let me thank you for your endorsement
of the role of the courts.
Both of those endorsements are significant. We appreciate
them.
On section 206, let me ask you, Mr. Attorney General, about
the roving wiretaps issue. I understand that, under existing
criminal law, in addition to identifying the target and the
location so that a court is satisfied to grant a roving
wiretap, before the wiretap is triggered that there must be an
authentication that the person involved in the conversation is
the subject of the authorized wiretap, but that that
requirement of authentication is not present in the Act that
we're reviewing. Is that accurate?
Attorney General Gonzales. If I understand your question as
to whether or not there is an ascertainment requirement in the
criminal context, my understanding, Senator, is that the
ascertainment requirement in the criminal context only applies
or only is there with respect to oral communications, like
bugging. It does not exist in a criminal context in connection
with electronic surveillance. And so I think that in that
respect 206 would be consistent with the current requirements
in the criminal context.
Senator Levin. In terms of bugging, is it consistent?
Attorney General Gonzales. I do not--it's my understanding
that with respect to oral communications there is an
ascertainment requirement in the criminal code.
Senator Levin. What about in the PATRIOT Act?
Attorney General Gonzales. There is no ascertainment
requirement per se. But again, let me emphasize that we do have
to show probable cause as to two very important facts--No. 1,
that the target is a foreign power or agent of a foreign power,
and No. 2, probable cause that the facility or place which
you're targeting, that the target is in fact using or about to
use that facility.
Senator Levin. No, I got that. But why should there not be
the same ascertainment requirement in the PATRIOT Act that
there is in criminal law, just the way there is for electronic
communications?
Attorney General Gonzales. I don't believe that there is
such a similar requirement.
Senator Levin. Should there not be?
Attorney General Gonzales. I don't know if I can answer
that question, Senator.
Senator Levin. Let me ask Director Mueller.
Is there any reason why we shouldn't have that same
ascertainment to protect privacy of American citizens to make
sure that in fact the ascertainment occurs, to make sure that
it's not somebody who should not be the subject who in fact is
being bugged?
Director Mueller. I would have to go and check the statute
more clearly, more carefully on that particular proviso and
look at the import.
I will say generally, though, that the FISA statute relates
to finding probable cause that we're dealing with a foreign
power and we're dealing and looking at and undertaking
investigative techniques of a foreign power or an agent of a
foreign power. And that, in my mind, is a different set of
concerns than one would have when we are investigating
individuals for their possible breaking of the criminal laws.
There are a number of areas that are different because of
the different subjects we're looking at under the FISA statute
than those subjects we're looking at under Title III of the
criminal statutes.
Senator Levin. My time's up. So why don't you just expand
for the record, after reviewing the law, as to whether we
should not have that same ascertainment requirement for the
bugging as we do in criminal law when it comes to the PATRIOT
Act?
Thank you.
Chairman Roberts. Senator Wyden. Let's try Senator
Mikulski.
OPENING STATEMENT OF HON. BARBARA A. MIKULSKI
Senator Mikulski. Thank you very much, Mr. Chairman, and
good morning to our panelists.
I think we all remember what it was like in October 2001
after America had been attacked and we knew that 19--or maybe
even more--people had come into our own country and had planned
the most despicable and dastardly deeds against us. And out of
that came the PATRIOT Act, because we knew we needed to get
more information and that we had old rules based on old
thinking about old technology.
So out of this came the PATRIOT Act, but yet the great idea
of sunset, because I think we were all concerned that in our
zeal to protect the country we would not be overzealous and
then create a set of rules we either found dysfunctional or not
in keeping with our Constitution. So I think this is why this
debate is important now.
Let me get to my questions.
There are a lot of concerns, as you know, among the
American people about jealously guarding their right of
privacy. There's a built-in tension between the right of
privacy and our national security. This is what we're trying to
resolve--how to protect both.
One of the questions that people have when they talk to me
is they think anybody in the Federal Government, under the
PATRIOT Act, can now spy on them. So I'm going to ask a series
of questions, and perhaps, Mr. Gonzales, you can answer this.
No. 1: What agencies within the Federal Government
can,''spy'' or place American citizens under surveillance--
Federal agencies?
Attorney General Gonzales. I mean, the FBI. The Department
of Justice is the agency that has----
Senator Mikulski. So can the CIA spy on the American
people?
Attorney General Gonzales. The primary responsibility falls
upon the Department of Justice, not the CIA.
Senator Mikulski. Can the CIA spy on the American--I'll get
to another question about the so-called wall.
Attorney General Gonzales. No.
Senator Mikulski. Can the National Security Agency, the
great electronic snooper, spy on the American people?
Attorney General Gonzales. There are limits upon the NSA in
terms of what they can do in spying upon the American people.
Let me just emphasize one additional thing, Senator. Even
with respect to the authorities that are granted, many of the
authorities----
Senator Mikulski. These are not hostile questions.
Attorney General Gonzales. No. And I understand----
Senator Mikulski. These are clarifying. Clarify after I ask
my next question.
Then let's go to the wall that Mr. Goss talked about in his
written statement. That was the whole issue. And then it goes
into the information sharing that Director Mueller talked
about. Everybody's working together; let's say it's in the
Counterterrorism Center. The NSA picks up something--say a
foreign agent.
They're a person of interest, even a person of suspicion.
They're coming into the United States. They're mingling with
people who are already in the United States. They're
communicating. NSA has picked all of this up. They're following
these people with their computer, their cell phone, whatever
techno stuff they have.
Then when they're there, do they stop and hand it over to
the FBI, and the FBI keeps on doing it? Or do they keep on
following these persons of interest or suspicion? And what are
they allowed to do under the law?
Attorney General Gonzales. Well, they are always----
Senator Mikulski. And clarify anything you want. But see,
these are the questions, which is, who does what, when?
Attorney General Gonzales. There are minimization
requirements under law on Federal agencies that engage in
surveillance to ensure that the privacy interests of all
Americans are protected. In addition to requirements under the
statute, there are additional guidelines within the Department
of Justice to ensure that the privacy interests of Americans
are protected.
Senator Mikulski. Well, Mr. Mueller, how would this work
from a practical standpoint? Do you see what I'm getting at?
Because people really worry that everybody can spy on them--the
DOD, et cetera--and that they can come in carte blanche.
Director Mueller. Surveillance of American citizens for
national security matters is in the hands generally of the FBI.
The investigation or development of intelligence overseas is in
the hands of the CIA and NSA. And I would say generally they
are not allowed to spy or to gather information on American
citizens, but there are limited exceptions to that. Depending
on the type of investigation, there would be, thanks to the
PATRIOT Act and additional rulings of the FISA court, we would
now have the ability to share the information that may have
been, pursuant to its authorities, obtained by the NSA, maybe
overseas, maybe between somebody overseas and somebody in the
United States, or obtained by the CIA overseas, and now be able
to use it in the United States.
Senator Mikulski. Did you need the PATRIOT Act to be able
to do that?
Director Mueller. The PATRIOT Act and changes to the FISA
statute--not changes to the FISA statute, but a
reinterpretation of the FISA statute by the FISA appellate
court in order to do that, yes.
Senator Mikulski. And had those changes not occurred, would
you or your agents have felt shackled in some way or
discouraged from pursuing certain things?
Director Mueller. Absolutely. I think if you look at the--
go back and read the report of the 9/11 commission, it was well
pointed out there the constraints under which we were operating
prior to September 11 that stymied, cutoff the flow of
information between the agencies whose responsibility is
protecting the security within the United States and those
agencies whose responsibility of protecting the security of the
United States outside the United States. And the PATRIOT Act
and the interpretation of the FISA statute has broken down that
wall.
Senator Mikulski. Mr. Gonzales, you wanted to clarify, and
then I have another question I just want to put in, which is,
has the PATRIOT Act had any constitutional challenges directed
at it through the court system? And have any parts of the
PATRIOT Act been struck down as unconstitutional?
Attorney General Gonzales. The only clarification I wanted
to make, Senator, was to repeat one thing that Director Mueller
said in his opening statement. And that is, of course, that
many of the authorities exercised by the Federal Government in
the area of surveillance are done oftentimes under the
supervision of a Federal judge, and also that there are strong
minimization requirements imposed by statute and by regulation
to protect the privacy interests of Americans.
There have been numerous challenges to the PATRIOT Act, and
to my knowledge they have all withstood challenge--successful
challenges in the courts.
Senator Mikulski. Mr. Chairman, I think I'll wait for my
next round of questions to go to another set. Thank you.
Chairman Roberts. The questions you had were follow-on
questions, which is why the Chairman thought it would be
perhaps a good thing to let you get to the end of that chain of
questions in regards to the understandability of the answers
and the questions. But we will have a second round.
Senator Mikulski. Well, and, Mr. Chairman, I think some of
those questions, knowing the colleagues before us, have to
almost go into a closed session to get more detail and get more
of the mechanics of how it works and so on that, again, we have
privacy concerns here.
But I appreciate the answers.
Chairman Roberts. Senator Snowe will be now recognized.
Let me point out the Committee did hold a closed hearing on
the use by the intelligence community field operatives in
regard to the tools provided by the PATRIOT Act. These same
questions were brought up at that particular time, and their
responses were very helpful in regards to the questions that
the Senator has asked.
Senator Snowe.
OPENING STATEMENT OF HON. OLYMPIA S. SNOWE
Senator Snowe. Thank you, Mr. Chairman. And I thank all of
you for being here today.
I think one of the fundamental issues surrounding the
PATRIOT Act as we consider its reauthorization is a lack of
public reporting with respect to the way in which it's applied.
And I'd really like to hear from all of you, given your
perspectives and the different positions that you represent, as
to how we could do a better job, how you could do a better job
in informing the public in which instances the PATRIOT Act is
applied because I think so often now what I hear from my
constituents is a concern that it's used for domestic
investigations, that there is excessive secrecy with respect to
how it's used.
And I think we need to have more public disclosure in
examining and assessing its impact. I think it would enhance
the public's confidence in the way in which this additional and
broader authority is being used.
So could you give us some ideas as to how we could improve
upon the public reporting dimensions without compromising,
obviously, valuable investigations concerning terrorists and
terrorism?
Mr. Gonzales, proceed.
Attorney General Gonzales. Well, I agree with you. I think
that we have a responsibility to not only use these tools
wisely, but to reassure the American people that we're using
these tools wisely, and to provide as much information as we
can without compromising our ability to effectively deal with
this threat, to do the best we can to provide information not
only to the Congress but to the American people.
In the past few weeks we have tried to be more open about
providing additional numbers about how many times these
authorities have been used. As you know, some of these
provisions do impose reporting requirements upon the Executive
branch as to how these authorities are being used.
I must tell you, Senator, based on my very short stint at
the Department of Justice, there are a lot of folks at the
department who spend a great deal of time gathering up
information to provide to Congress. And I understand that
sometimes it takes a little longer than some Senators like. We
want to be very careful. We want to be very accurate in
providing good information to the Congress.
And so there already is a lot of information that's being
provided to the Congress. We provide reports twice a year
regarding the use of FISA, and I'm beginning to learn that
sometimes some Members of Congress don't take advantage of the
opportunity to review that report, and they don't understand
what information is already being provided to the Congress.
So we're always happy to see what we can do more, but I
would just emphasize that I think there is a lot of information
that is currently being shared about how these authorities are
being used.
Senator Snowe. You don't think we should do anything
further than those additional reports? I mean, I think you
provide them biannually.
Attorney General Gonzales. Senator, I'm happy to sit down
with you and your staff and consider additional ways that we
could better educate the Congress and the American people. I'm
happy to do that.
I just want to--I don't need to remind you, but there is in
my judgment a lot of information that is currently being
provided already by the Executive branch.
Senator Snowe. Well, somehow I think that we really have to
do a better job in conveying that to the American people so
that it doesn't undermine the integrity of the process and how
it's being applied, I think, in the final analysis, and its
impact. I mean, we understand to what extent you--you know,
obviously, certain activities have to remain secret. We
understand that. But on the other hand, I think we have to go
the extra mile whenever we can to convey to the public that
this is being used in the most appropriate way and we're not
encroaching on people's civil liberties.
Attorney General Gonzales. I couldn't agree more, Senator.
Senator Snowe. Mr. Mueller.
Director Mueller. Following up on what the Attorney General
said, the information that's been provided I think should be
helpful in allaying some of the concerns, particularly of
individual groups, about the abuse of the PATRIOT Act. For
instance, the fact that we have not used the PATRIOT Act 215 to
obtain records from a library should allay some of the
concerns.
We have provided a great deal of information to Congress. I
have here a letter of October 24, 2003, to the Honorable Ted
Stevens, as chairman of the Committee on Appropriations. In it,
it lists something like 15 instances where we've utilized the
delayed notification in various of our cases, indicating how
important that particular provision is and how it has not been
abused.
Part of the problem that we have is the fact that to
disclose our successes, we have to do it in closed session. The
closed session I believe you had a couple of weeks ago, I
believe was informative in showing you exactly how we're using
those provisions, but to disclose much of that material would
educate the terrorists, would educate those whom we're
investigating. But my hope is that through hearings such as
this, continued scrutiny from Congress, that much of the
concern will be allayed.
Director Goss. Senator, I have a great deal of empathy for
your question because I have participated from the situation
you find yourself in as responsible to a constituency. And I
think it's very important that we reassure the constituency
that we have safeguards in place in our government.
I certainly think that the Oversight Committee role is
very, very important in that. And I think, therefore, a
frequent, very candid exchange on matters of concern needs to
be undertaken just to make sure that we do assuage those
concerns that might be out there, so that people who are
respected in their communities can get up and say, I've
examined this, I'm on top of this, and I can understand your
concerns, but I think everything is working OK and, on balance,
in fact, this is helping us catch terrorists or prevent
terrorist acts from happening.
I think that is the system that we have embraced in our
form of representative government for dealing with these kinds
of problems, and it's one that I think does work pretty darn
well, but I certainly am aware of the balance problem.
I know right now that there are people who have terrorist
concerns, terrorist thoughts, may be associated with
terrorists, actually people maybe in terrorist organizations,
who are probably watching this discussion. I am very concerned
that we understand that in the audience these days, because of
technology, we have not only the people we're trying to
reassure and we want to go out there and tell them how wisely
we're employing these tools, it would be not helpful to tell
the terrorists that.
There is a huge amount of denial and deception and
cleverness going on in the terrorist community, as loosely as
it is organized. But it is good. They are smart, clever people.
They take benign things like aircraft that we use to fly around
for our commerce and our comfort in this country and they turn
them into weapons of doom and tragedy. They can do that with
other simple things that we count on every day, like going to
the store and buying aspirin or things like that. It doesn't
take much imagination.
So I am very concerned that we draw a line with all the
American people to understand we may have to be looking into
things from time to time that terrorists are trying to take
advantage of and use against us, things that we consider benign
in our daily life. And those explanations have to be credible
and they have to be accurate. And we need all the partners in
our great enterprise to do that, both legislative, executive,
and I would add the media would help too, if we could have
accuracy in what's actually going on.
I do think we have the things in place. The last thing any
of us want in the intelligence community--and again, we are
overseas, so I speak from that point of view--is a feeding
frenzy over a poster child because we abused the authority.
This authority is too important. We don't want to lose it. We
are very careful not to abuse it.
Senator Snowe. Thank you. Thank you, Mr. Chairman. Thank
you all.
Chairman Roberts. Senator Rockefeller. I'm sorry, Senator
Wyden is next, and he has returned.
OPENING STATEMENT OF HON. RON WYDEN
Senator Wyden. Thank you very much, Mr. Chairman, and thank
all of you for your cooperation.
I want to begin with you, Director Mueller, and also
express my thanks to you. You've always been responsive
whenever I've called and whenever I've had concerns, and I'm
very appreciative of that.
I want to start with the library provision of the PATRIOT
Act and the debate about 215. You all constantly say there has
never been a case where you forced a library to turn over
records. I've heard that again and again and again. But my
understanding is that you get cooperation from libraries by
using what you call--these are your words, not mine--a
``discreet inquiry'' by a member of the Bureau. And I'd like to
know, No. 1, what a discreet inquiry of a library is and, No.
2, how many of them have there been since the PATRIOT Act?
Because I constantly hear from my libraries, you know, about
this.
I think Porter Goss is absolutely right. We need to strike
a balance here. We ought to be fighting terrorism ferociously
without gutting civil liberties. And I really want to get on
top of this library issue. So tell me what you mean when you
say you get cooperation from libraries through discreet
inquiries.
Director Mueller. Let me start off by saying that I have
not, I don't believe, ever said that we have never forced
libraries to give records. We have never used 215 as a vehicle
to get records from libraries. In the past, in criminal
investigations we have used grand jury subpoenas. So I want to
make certain that we're clear that I was talking about 215 we
have not used to ask libraries to provide records to us.
In terms of discreet inquiries, and I'm not certain of the
context in which I may have----
Senator Wyden. You said it to the Judiciary Committee.
Director Mueller [continuing]. Said that. But I think what
was in my mind is we've had a couple of occasions at least in
which we have been contacted by persons who believe that they
have information that needs to come in the hands of the FBI,
and these are librarians. And in colloquy with these
individuals, they've decided to provide us records. Now, it may
have been with some paper. But when I'm talking about discreet
inquiries, it has been triggered--in my mind it's been
triggered on those occasions by librarians themselves that have
come forward to us and said this is something you ought to look
into.
Senator Wyden. So, since the PATRIOT Act was enacted, there
has not been an increase in discreet inquiries that the
department has initiated with libraries?
Director Mueller. Not to my knowledge, no.
Senator Wyden. All right. Would you----
Director Mueller. Now let me just make one----
Senator Wyden. Would you check on that and give me the
numbers with respect to times when the department initiated
what you all call this discreet inquiry?
Director Mueller. Well, I wouldn't put a tag on discreet
inquiries. I may have used the word ``discreet inquiries'' to
describe what I believe were two situations in which librarians
had come to us and we had a colloquy with the librarians. It
never got to the point of 215s because the librarians believed
we needed the information.
I would be happy to try to go back and look at the number
of occasions where we have utilized--we have not used 215--the
number of occasions that we have utilized process on libraries.
But it would be very difficult for me to go back and say, ``OK,
when has one of our agents talked to a librarian?''
Senator Wyden. I understand. I think you get my point as
well. These librarians are very fearful. They're patriotic
Americans. They want to assist their government and at the same
time, like the rest of us, they're concerned about fishing
expeditions. And I want to make sure I understand what these
issues are all about. And why don't we say I intend to go into
this more in the closed session as well to make sure I'm on top
of that.
Director Mueller. Can I make one last point in this regard?
Senator Wyden. Of course.
Director Mueller. I am quite certain that had we engaged in
fishing expeditions with libraries that it would have come--
attention would have been brought to that fishing expedition by
either the librarian society or the ACLU. And we have not had
brought to our attention an abuse of our role in interacting
with libraries.
Senator Wyden. Director, what I'm concerned about is that
it may not be getting to that point because essentially people
show up from the Bureau, ask these kinds of questions, and
these librarians say, ``Look, we don't want to be seen as
disloyal; we're just going to cooperate.'' I want to know more
about this. I'm not making any allegations here. All I know is
I saw you say the words ``discreet inquiry,'' and I'm hearing
from these librarians. I want to get on top of this.
Question for you, if I might ask, General Gonzales. You
said that there had not been an instance where a court has
found any abuses under the PATRIOT Act. Are you aware of Doe v.
Ashcroft? That was the case where the Federal judge struck down
the authority for National Security Letters for customer
records of communication service providers which had been
expanded by the PATRIOT Act.
Now the court held that the government had failed to
provide any explicit right for a recipient to challenge the
letter, a search order, and that violated the Fourth Amendment,
and that the automatic secrecy rule violated the First
Amendment, and the department has appealed the decision to the
2nd Circuit. Are you aware of that, or----
Attorney General Gonzales. I am generally aware of that
case. You are correct; the courts had indicated that there were
problems under the First and Fourth Amendment, even though the
Department of Justice conceded that this request by the
government could be disclosed and could in fact be challenged
in the courts. Nonetheless, the court chose to disregard our
concession and issue its ruling.
My understanding of that case, Senator, is that the court
specifically, though, focused on a provision that predated the
PATRIOT Act, and that was the provision that was in fact struck
down. And it did not reflect a decision by a Federal judge to
strike down a particular provision created by the PATRIOT Act.
But I will confirm that and get back to you.
Senator Wyden. Why not require a judge to approve these
National Security Letters? I mean, that could be done
electronically, it could be done quickly. My concern about
these National Security Letters is that there would be a way to
strike the balance that Porter Goss has talked about, a view
that I share, relatively simply--that, you know, you could have
judges approve the National Security Letters electronically and
quickly. I'm concerned that a lot of these recipients aren't
given notice of their right to challenge search orders. And it
would seem to me that this would be something consistent with
this balance that we've been talking about that we could do.
Do you have any concern about what I've just described?
Attorney General Gonzales. My understanding, Senator, with
respect to the use of National Security Letters, I mean, one of
the benefits of it is speed. There may be instances where you
need to get them so quickly that you might lose valuable
information if, in fact, you have to track down a Federal
judge.
I would also emphasize that the use of National Security
Letters is limited to certain types of entities that you can
gather information from, and it's limited as to certain types
of information you can try to get under National Security
Letters.
Senator Wyden. Well, again, what is hard for us to address
here is that we're to some extent doing oversight in the dark.
We are trying to figure out how to strike this balance.
Director Mueller and I are going to talk a bit more in closed
session about the library provisions.
The Department of Justice is required to report to this
Committee on the use of National Security Letters by the FBI.
We haven't gotten the report for 2004. We haven't gotten it. So
that makes it hard for us to do oversight, which is why Members
of this Committee show up and ask these questions.
So I hope that all of you will work with us on this because
in an area like this, National Security Letter, I sort of
operate under the Ronald Reagan theory, ``trust but verify.''
And what I do know is that we haven't gotten the report that
was supposed to be filed on these National Security Letters, so
we come here and ask these questions.
And if we have a second round, Mr. Chairman, I'll ask some
more. Thank you.
Chairman Roberts. Senator Rockefeller.
Vice Chairman Rockefeller. Thank you, Mr. Chairman.
This is a specific question about FISA orders for business
records, ``any tangible things.'' In 215 in the PATRIOT Act it
authorizes FISA orders issued by the FISA court for ``any
tangible things'' from any entity. Under section 215 the
government only needs to make, with respect to terrorism
investigations, a showing that the records in question are for
``an authorized international terrorism investigation.'' In
your joint statement you indicated that the department would
support an amendment that requires that the records be
``relevant'' to a national security investigation.
Section 215 also provides that no person shall disclose to
any other person that the FBI has sought or obtained records
except for persons necessary to producing, obviously, the
records. In your statement you indicated that the department
would support an amendment that the recipient of a section 215
order may consult with an attorney and may challenge the order
in court. The questions I have are twofold.
Would you support limiting the scope of section 215 to
those records for which there was at least some specific
information for believing that the records related to a
suspected terrorist or other agent of a foreign power, No. 1,
yes/no?
Secondly, your statement indicates that you support
modification of section 215 to give the recipient of the FISA
order the right to consult an attorney and to challenge the
order in court. Do you support the provisions of the SAFE Act
that would require the government to show why nondisclosure is
necessary and place a time limit on a nondisclosure
requirement? Why or why not?
Attorney General Gonzales. I think that the ``relevant''
standard is the appropriate standard with respect to 215
business order requests. We have indicated that we believe that
it is a relevant standard. The words are not used in the
statute, but we believe it is implicit. But nonetheless, we
would support making it clear that the appropriate standard is
a relevance standard.
I think to go above that to require a higher standard would
make the use of 215 sort of a dead letter. I don't think
investigators would use 215.
We look at 215 orders as a search for--not a search, but a
request for information, much like a grand jury subpoena, where
the standard there is also relevance. It's part of the building
block of the case in order to get information to see whether or
not there is sufficient information to develop probable cause
that would support a search. And my own judgment is that if the
standard were changed, that 215 would no longer continue to be
useful.
And I'm sorry, sir, I don't remember the second part of
your question.
Vice Chairman Rockefeller. That was the SAFE Act would
require government to show why nondisclosure is necessary and
place a time limit on nondisclosure requirements.
Attorney General Gonzales. Well, I think in this case we'd
be talking about information that is classified. And it just
sort of turns the presumption on its head that classified
information--the presumption is is that it would become public
unless you showed certain things. I mean, it is classified
information, and I think there's a reason it is classified
information and should remain classified information.
Vice Chairman Rockefeller. Well, then help me understand.
You would say, then, that a nondisclosure requirement is not
desirable?
Attorney General Gonzales. I would not support it. I mean,
I think we all understand that these investigations involve
very sensitive matters. Talking about in the FISA context, this
is the most sensitive information. And to disclose information
to a target or someone who's not a target of an investigation
but someone who then shares the information unknowingly to the
target may jeopardize a very important, serious investigation.
And so we would have concerns about such a requirement.
Vice Chairman Rockefeller. OK. One more. This is on
``significant purpose,'' about those requirements.
Section 218 of the PATRIOT Act amended the certification
requirement of FISA such that the collection of foreign
intelligence must be ``a significant purpose'' of the
surveillance or the search. Prior to the PATRIOT Act, the
certification requirement had to be interpreted to require that
foreign intelligence collection be, quote, ``the primary
purpose'' of a surveillance or search. Section 218 has been
credited with ``helping to bring down the wall separating
intelligence agencies from law enforcement agencies.''
Other provisions of the PATRIOT Act such as section 203
allow information to flow from law enforcement officials to
national security officials and to members of the intelligence
community, as we know.
The question is, in terms of protecting the United States
from another attack, what difference have these information-
sharing acts made, in your judgment? Second, can you describe
the relative use and importance of, first, a provision allowing
the sharing of criminal investigative information with
intelligence officials, the importance of that, and second, in
the other direction, provisions allowing the sharing of
intelligence information with law enforcement agencies at a
lower level?
Attorney General Gonzales. Well, I think it is probably one
of the most important aspects of the PATRIOT Act, provisions
like sections 218 and 203, which have made it clear for law
enforcement and the intelligence community that it is OK to
share information. And, as the 9/11 commission and the WMD
commission, the reports from those commissions, both indicated,
part of the reasons for the attack on September 11 and the
problems we've had is the fact that the government has been
unwilling because of a perception that they're unable to share
information. And section 218 and other provisions like 203 have
made it clear that it's OK to share information.
So, it's very, very important. I think sharing of
information, to be successful in that, is so important in
winning the war on terror.
Vice Chairman Rockefeller. General, I'm in agreement with
that, but the question was, has it made a difference?
Attorney General Gonzales. It has made a difference. Yes,
sir.
Director Mueller. If I could speak to that just for a
second, it has made a tremendous difference in our ability to
conduct what has been called by the 9/11 commission
``transnational intelligence investigations.'' Terrorists
operate, as we saw on September 11--they developed their plans
in Afghanistan; they habituate Hamburg, Germany; and launched
their plans in the United States.
We've had a number of occasions since September 11 in which
we have discovered information in the course of criminal
proceedings here that has been passed on to the CIA and enabled
the CIA to wrap up persons overseas with the help of their
counterparts. That would not be possible without the provisions
of the PATRIOT Act.
We had convicted yesterday, in Northern Virginia, an
individual by name of Tamimi, who in the wake of September 11
had encouraged a number of individuals to go to Pakistan to
obtain training in order to fight against the troops in
Afghanistan. He was convicted as a result of the ability to
share information that may have come from the intelligence side
of the house but can be used in the criminal side of the house.
Last year, in the spring of last year, I believe it was,
there was an individual by the name of al-Hindi, who was
arrested by the British authorities. He is the individual who
had undertaken surveillance of The Prudential and a number of
financial institutions in the United States. If we had not been
able to look at some of his co-conspirators, both criminally as
well as from the intelligence perspective, we would not have
been successful in obtaining the plea of a principal member
here in the United States, nor would we have been half as
successful in coordinating and cooperating with our
counterparts overseas in terms of exchanging information with
them that enabled them to wrap up and prosecute al-Hindi.
One can talk about the successes due to breaking down the
walls for a good several hours. I'm sure you heard in the
closed session last week a number of instances where breaking
down the wall by the PATRIOT Act and the rulings of the FISA
court has made a tremendous difference in our ability to
protect the American public.
Vice Chairman Rockefeller. I happen to agree with that, and
I think it's important that the public hear that clearly.
Chairman Roberts. Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
Director Goss, I welcome--I think all of us do--your strong
support for congressional oversight which you have made in your
testimony. I think we've fallen short in Congress of carrying
out those responsibilities and I very much welcome your
statement of support.
And, more importantly, I welcome your following through
with documents which you have supplied to me, which I have been
waiting for from the former CIA Director for a year. You came
to office, said you would be cooperative. You have come
through, followed through with the actual documents I've been
waiting for. I can only say I wish the Department of Defense
were as forthcoming with documents as you have been, but I
don't expect you to comment on that.
[Laughter.]
Senator Levin. Thank you.
The money-laundering provisions in the PATRIOT Act. Title
III contains provisions that Congress enacted to strengthen our
laws against money laundering and terrorist financing. They're
not subject to sunset, but nonetheless we should be reviewing
these provisions, whether they're sunsetted or not, as you
said, General. I agree with that.
Have they been useful to you, the anti-money laundering
provisions in the PATRIOT Act?
Attorney General Gonzales. I'm told that they've been very
useful to the department. I don't have specific examples.
Perhaps Direct Mueller does. But money laundering and those
kinds of schemes to finance terrorist activities is so very
important in our ability to deal with this threat. Without
financing, it's very difficult for terrorists to attack this
country. But, to respond, yes, it's been very important.
Senator Levin. And, Director Mueller, have the provisions
of the PATRIOT Act relative to anti-money laundering in general
been useful to you, without getting into too many specifics
because of the time limit on our questions?
Director Mueller. Yes. Let me just mention a couple of
provisions that were incorporated in the PATRIOT Act that were
tremendously important.
Money transmitting businesses, which have become a
mechanism for exchanging funds around the world, the PATRIOT
Act gave us provisions helping us to address those. The
provisions relating to treasuries, the rules and regulations
with regard to banks, so that banks, not only in the United
States but around the world, adopt ``know-your-customer'' rules
are tremendously important.
So just to mention two of those provisions, I'm sure we
have other examples from Treasury in which the ability to
forfeit funds in interbank accounts has been useful, but I'd
have to get you details on that.
Senator Levin. That's fine. That's very helpful, thank you.
General, section 214 is the subject of the next question.
You've made reference to the fact that there's got to be a
certification of the information that you seek authority to
obtain being relevant to an ongoing investigation. And my
question is, do you think it is appropriate in that request for
that judicial authority that the way in which the information
is expected to be relevant should be set forth?
Attorney General Gonzales. Senator, I'm not sure I
understand your question.
Senator Levin. Well, you said that there's a requirement in
section 214 that when agencies install pen registers, tap and
trace devices through FISA procedures, that there's a
requirement that you allege, you certify, that what you are
seeking authority to do is relevant to an ongoing
counterterrorism or counterespionage investigation.
My question to you is, do you think it would unreasonable
to require that you state in that request how it is relevant to
your investigation--not just the conclusion that it is
relevant, but how it is relevant. If you could just give me a
yes or no, or expand for the record, I'd appreciate it.
Attorney General Gonzales. Senator, it's hard for me to
plead ignorance, but it may be the fact that we do have to
explain how it's done. I don't know that.
Senator Levin. If not, I would hope you would consider
supporting an amendment to the statute which would require that
you state how it's relevant, if it's not already required.
Could you give us that for the record?
Attorney General Gonzales. I will look at that.
Senator Levin. Now, in section 215, we've got a situation
where the application--this is on the records we've been
talking about, including library records--the application to
the court goes, as I understand it, to the institution, the
business, or whatever. Is that correct?
Attorney General Gonzales. No, it's the order. The
application goes to the court and then an order is issued, and
then we seek the records pursuant to that order.
Senator Levin. To an institution or an entity?
Attorney General Gonzales. The entity holding the record
that is being pursued.
Senator Levin. My question is, do you think it's reasonable
that when the entity is ordered to provide records, that the
specific target of the investigation be the subject of the
records being sought rather than a general ``we want all your
records'' relating to some subject? Is there any reason why the
law should not require you, if you're not already required, to
identify whose records it is that you seek and that it is not
an American's record, and that the records are not connected to
First Amendment rights?
Attorney General Gonzales. Well, there is, of course, a
requirement under 215 that the information sought is relevant
to an intelligence investigation.
Senator Levin. Right.
Attorney General Gonzales. I worry about the additional
requirement that you have suggested. I'd have to look at it,
but I'd worry about going beyond what's already within 215.
Senator Levin. All right.
Director Mueller. Can I add something on that? I would be
opposed to that.
Senator Levin. All right.
Director Mueller. I think the court should review the
application. The court issues the order. If it's overly broad,
the court can make a finding and require additional
information. There will be occasions where to, as you say,
specify in the order the individual who is the target of the
investigation where that would be akin to alerting the person
and risking the investigation as a whole.
Senator Levin. How would that be alerting the person?
Director Mueller. Well, if it goes to an institution, the
institution can well turn around and alert the person if they
know a particular target. There may be circumstances where we
look for discreet groups of records. In those records may be
records we want on a particular target or targets. And I
believe we ought to have the ability and capability to present
to the judge the circumstances where we want a broader order
for those records from a particular institution.
Senator Levin. Thank you. Thank you, Mr. Chairman.
Chairman Roberts. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
I want to follow up on an area that Senator Levin was
touching on and see if I can go at it a different way, and I'll
do this with you, Director Mueller.
The PATRIOT Act, of course, eliminated, with respect to the
National Security Letters and the FISA warrants, the
requirement that you meet what was called the specific
articulable fact test. And what was put in place was a
requirement that when you want records, it has to be relevant
to an open investigation. That's, I think, where we are in
terms of the law.
What I am interested in knowing is, what is necessary at
this point, Director Mueller, to initiate an investigation
within the FBI?
Director Mueller. Well, it can be an allegation. It could
be information provided to us by another agency, and we will
generally open what's called a preliminary investigation. And
the preliminary investigation enables us to do some limited
work in terms of verifying the information, following up on the
information before we can go to a full investigation. And the
full investigation enables us to use a variety of additional
tools.
So it is a staged development of information where we have
to make a showing in our files of what is warranting the use of
additional investigative techniques. It is based on
predication. In other words, the initial predication for
opening an investigation can come anywhere from an e-mail from
an anonymous source saying that somebody's going to commit an
attack in New York tomorrow, and then we'll do whatever is
necessary to either corroborate that information or disprove
that information.
Senator Wyden. Is it fair to say then, Director, that this
staged development of information, as you describe it, is in
fact the new standard of proof for issuing a FISA warrant and a
National Security Letter?
Director Mueller. No.
Senator Wyden. All right, then tell me why not, because you
just said that to initiate an investigation within the FBI, you
can do it, essentially, with an allegation. Then you said that
there is this--I guess you call it the process of proof, sort
of a ladder kind of arrangement. And that, based on an absence
of any other information, strikes me as something pretty close
to the new standard of proof, and I'm just trying to find out
what the standard of proof is.
Director Mueller. It's not a standard of proof. The
evaluation of information has a number of purposes. One is, is
it worth opening a file? Is it worth documenting the allegation
that's come in? We have a number of allegations that come in we
don't open a case on because it may be an anonymous e-mail
message that comes in to our website. But for our practical
purposes in terms of what we need to do to further the
investigation, we are limited at the preliminary stage to
documenting and furthering----
Senator Wyden. But what is the standard of proof, then?
Director Mueller. There is no particular standard of proof.
We don't have to prove to anybody. It's not probable cause.
It's is there information that leads us to believe--if you want
to say, leads us to believe--that further investigation is
warranted in a particular case?
Senator Wyden. I think that's a pretty sweeping comment
that there really isn't any standard of proof, that there isn't
any, to your terminology, no particular standard of proof.
And I'm going to want to follow up with you on this,
Director, because I think we used to have one. It was, you
know, the specific, articulable fact requirement. Then we said
that it's got to be relevant to an open investigation. Then you
told me you can do an investigation on the basis of an
allegation. I'd like now to know what the standard of proof is
for these warrants and National Security Letters, and you said
there really isn't any particular standard.
Director Mueller. Well, there's a standard for issuance of
a grand jury subpoena, for instance: it's relevance. There's a
standard for issuance of a National Security Letter. In order
to get a particular process there is a standard. But for us to
conduct investigations internally, we don't have to meet any
particular standard of proof. What I'm saying is, this is the
process we have adopted over the years to assure that we have
predication for each step of an investigation.
Senator Wyden. With all due respect, Mr. Director, as I've
said, you've worked very well with me. This is not what we've
done over the years. Over the years, we had this specific
articulable fact standard. We don't have it anymore, and that's
why I'm pursuing this.
Director Mueller. Happy to pursue with it you, Senator.
Senator Wyden. Good. I want to ask this. Could I ask an
additional question? Are we on the third round?
Chairman Roberts. Well, of course.
Senator Wyden. Third round, or do you want me to proceed
now, Mr. Chairman?
Chairman Roberts. No, right now.
Senator Wyden. Thank you.
I want to ask this of General Gonzales, and it involves the
privacy and the Civil Liberties Oversight Board with respect to
domestic intelligence. The Senate had a different view with
respect to how the board would work than ended up in the final
law. And the board, by the Senate version, would be in a
position to issue subpoenas. That's not how the law came out.
I'm curious whether you would be supportive of a request,
General Gonzales, from the board, to issue a subpoena? It seems
to me that if they, right from the get-go, don't have that kind
of authority, the kind of authority that was envisioned by the
Senate, that you limit some of their powers. And I'm just
interested in how you would view a request from them.
Attorney General Gonzales. Well, if we got such a request,
then obviously we would seriously consider it. But there are
certain standards that the department would feel would have to
be met in connection with the issuance of any subpoena. And
simply because this privacy board requested a subpoena, no one
should walk away from this hearing----
Senator Wyden. If the privacy board met the constitutional
standards, what you're telling me is you would not rule out
giving them a subpoena.
Attorney General Gonzales. If we believe that a subpoena
should be issued, we would issue a subpoena.
Senator Wyden. Very good.
One last question, if I might, for you, Director Goss, on
an area I think that involves a matter we both have a great
interest in.
When you were here the last time, I asked about information
sharing between the Counterterrorism Center and various
intelligence agencies. It was based on my understanding that
while information can be shared among the analysts assigned to
the terrorism center, analysts have to seek special approval to
share this information with their home agencies.
And this approval is required, despite the fact that there
is this finite number of people working on terrorism in the
intelligence community. All of them have a need to know, all
are trained to handle sensitive data on persons and foreign
nationals. How do you think this ought to be addressed? And
since we talked about it a bit the last time, I thought it made
sense to follow it up.
I still think something along the lines of a special
terrorism analyst, you know, program, so as to allow all the
analysts access to the same data would make sense. But since we
talked about it the last time, I just wanted to follow up and
get your sense of where we were.
Director Goss. My sense of where we are is that we are
beginning to work better as a team. I don't think it's what I
would call a finished product yet. I think it's still a work in
progress. Obviously, as you know, I want to be very circumspect
in what I respond because Ambassador Negroponte has been given
the responsibility for that in his role as DNI, and I no longer
have those responsibilities. But when I left the ship, the
direction was for more sharing and more compatibility in
systems so that the goals that we both have ascribed to about
getting information where you need it, when you need it, to the
right analyst, would be available.
I cannot assure you that's going to be accomplished
immediately. There are still a lot of different systems
involved, a lot of different procedures, a lot of concerns
about a need to know because need-to-know still is a principle
that comes into the business. The trick is sharing with the
people who need to know and not having a gratuitous release of
information that could be harmful otherwise.
A lot of that is going to have to be worked out on a sort
of experiential basis as we go along building the NCTC. We're
still a little bit in the dark about what strategic planning
actually will entail in the NCTC. As I say, I've left those
matters in very good hands with Ambassador Negroponte and we've
already had some conversations about some of the efforts that
will be necessary out there and that's within the scope of what
we've talked about.
Senator Wyden. My concern is, and I'll wrap up with this
Mr. Chairman, that the pre-9/11 set of walls has been replaced
with a new set of walls preventing information sharing. And,
for the life of me, when we have this limited number of people,
all with the need to know, all who are trained to handle
sensitive data, it just seems putting them through this kind of
water torture exercise to share information is pointless and
doesn't serve any of the interests that you three have talked
about.
I thank you very much, Mr. Chairman, for the extra time.
Chairman Roberts. Senator Levin.
Senator Levin. Thank you, Mr. Chairman. I just have one
additional question.
Sections 214 and 215 protect American citizens from being
investigated, having their phone calls traced, who they're
calling, who's calling them, as well as having their records
obtained ``solely on the basis of activities that are protected
by the First Amendment.''
So, you cannot be investigated as an American citizen under
either 214 or 215 solely on that basis. That's a word which is
deeply troubling to me because let's say part of the motivation
is your First Amendment activities for being investigated. And
I know this isn't your intent. I'm talking about what the law
permits. I'm not talking about what you in your practice do.
Why should we suggest in the law, in any way, that if an
investigation of an American citizen is based significantly or
partly on their First Amendment activities that that would be
OK? Or should we?
Attorney General Gonzales. Well, I think that provision was
included by Congress to provide additional protections for the
lawful activities of American citizens. But if American
citizens are involved or have information or are in any way
affiliated with terrorist activities, we should have the right
to gather additional information through 214 and 215.
Senator Levin. Sure. But then the motivation is that
participation. The motivation is not, even in part, their First
Amendment activities.
Attorney General Gonzales. That would be correct, as far as
I'm concerned.
Senator Levin. Yeah. Director.
Director Mueller. Well, I mean, you can take Eric Rudolph,
who may claim First Amendment protection for his acts against
abortion clinics. It may have some First Amendment motive--
protected beliefs. But the fact that he engaged in--we ought to
be able to investigate an Eric Rudolph.
Senator Levin. Of course.
Director Mueller. He can sit there and say, ``Look, I'm
against abortion clinics, but that doesn't mean he has a right
to bomb them.''
Senator Levin. Of course.
Director Mueller. And so, I think it makes some sense that
we cannot investigate someone solely on, but if they're engaged
in someway in exercising their First Amendment rights but there
is the possibility or the actuality of violence, it makes some
sense to me, quite obviously, that we should.
Senator Levin. Of course. But the purpose of the
investigation is not to investigate his exercise of First
Amendments rights, is it?
Director Mueller. No.
Senator Levin. That's what I'm driving at. And I think
Americans are concerned about their rights. And we ought to be
sensitive to that and you indicate you want to be sensitive to
that. We ought to go after any acts of terrorism or support of
acts of terrorism with all of our might. But we have to be very
clear, as you were in your testimony, I think, that we're not
after people for exercise of their constitutional rights. We're
after them if they participate, encourage, in any way
contribute to terrorist acts in some knowing way. Then we're
going to go after them with the full weight of the law.
But the word ``solely'' in there has been troubling to a
lot of people. It is to me and I think you ought to give some
thought to eliminating that suggestion that we're not--our
motivation is not to go after people's exercise of their
rights, period. That's not the motivation. It's to go after any
illegal activity.
Would you agree with that?
Attorney General Gonzales. I agree with that sir.
Director Mueller. Yes.
Senator Levin. Thanks. Thank you, Mr. Chairman.
Chairman Roberts. Thank you, Senator. I have one question
but I'm going to opine. I don't know if that's a verb or not
but I'll use it.
Attorney General Gonzales, we're going to call you Jericho
in terms of these walls. And I noted the discussion of walls in
your written testimony. The views of your lawyers, including
the lawyers in the Office of Intelligence Policy and Review,
basically laid the foundation for and ultimately constructed
the walls between law enforcement and intelligence officials
which were then adopted by the Foreign Intelligence
Surveillance court.
Some would say that these views were overly cautious--and
I'm being generous. However, as the Foreign Intelligence
Surveillance court, in their view, made clear, these ``walls''
were not mandated by the Constitution case law or the plain
language of the FISA statute. Now that's an opinion upon which
I do agree.
Nonetheless, my concern is with the current implementation
of FISA. General Hayden testified before this Committee. He
indicated the problem was not really preventing NSA employees
from stepping over the line. It was getting NSA employees to
even come close to the line. It took the FBI and the DOJ more
than 2\1/2\ years after the passage of the PATRIOT Act to
obtain the first FISA business record court order. We've gone
over that.
And so the question that I was going to ask, but I'm just
going to make it as a statement, is hopefully your attorneys
are not still shying away from the line and hopefully they are
doing what it takes to fully use the tools we gave you in the
PATRIOT Act.
Now the FISA has become one of the nation's most important
tools in protecting national security and the Department of
Justice, as you know, plays a key role in supporting the
intelligence community's use of the Act. The OIPR is at the
forefront of this support, whether submitting applications to
the Foreign Intelligence Surveillance court or reviewing the
Attorney General-approved implementing guidelines. The
attorneys at OIPR should be fully cognizant of the important
role they play in the intelligence activities of the United
States. I think it's extremely important that the OIPR be
considered and that they consider themselves to be a full
partner with the intelligence community.
The question I had was to you, sir, and for Director
Mueller and for Director Goss, do you agree with that
statement? Let the record show that you all three said yes.
[Laughter.]
Chairman Roberts. While we recognize the role that the OIPR
plays in ensuring the integrity of the process, too many times
in this Committee's oversight OIPR has shown itself--this is my
words, about 6 months ago during hearings--a rusty gate, if you
will, that prevents the full use of intelligence authorities. I
think OIPR should focus on enabling collection and ensuring
compliance with the applicable laws.
Now, Senator Wyden's pointed out that we have not received
your required semi-annual reports--I'm talking to the Attorney
General--on the usage of National Security Letters for 2004 and
we're here at the last of April. Mr. Gonzales, could you please
look into why we haven't received those reports in a timely
fashion? I know you will do so, sir.
Finally, I have a copy of the letter from the Attorney
General which responds to a number of allegations from the ACLU
about the Patriot Act abuses. Without objection, I want to
enter this letter in the record.
[The information referred to follows:]
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Chairman Roberts. That concludes the hearing, and we thank
you for your time.
[Whereupon, at 11:28 a.m., the Committee adjourned.]
PROPOSED CHANGES TO THE UNITING AND STRENGTHENING AMERICA BY PROVIDING
APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA
PATRIOT) ACT OF 2001
----------
DAY THREE
TUESDAY, MAY 24, 2005
United States Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 9:41 a.m., in
room SD-106, Dirksen Senate Office Building, Hon. Pat Roberts
(Chairman of the Committee) presiding.
Committee Members Present: Senators Roberts, Hatch, Bond,
Lott, Snowe, Chambliss, Rockefeller, Levin, Feinstein, Wyden
and Bayh.
OPENING STATEMENT OF HON. PAT ROBERTS
Chairman Roberts. The Committee will come to order. I
apologize for the lateness of the arrival of the Chair. We are
operating under a 2-hour rule, which I think everybody
understands.
This morning, the Senate Select Committee on Intelligence
continues its series of hearings on the USA PATRIOT Act. Over
the past 4 weeks, the Committee has conducted three hearings--
two open and one closed--concerning the use and reauthorization
of the PATRIOT Act. Those hearings, our oversight activities,
and the Committees comprehensive classified analysis of
Executive branch activities under the Foreign Intelligence
Surveillance Act form the basis of our legislative actions.
The purpose of our hearing this morning is to receive
testimony on specific legislative proposals prior to the
Committee's mark-up of PATRIOT Act legislation. This morning we
will hear from two distinguished panels. First, the Committee
will hear from Ms. Valerie Caproni, the General Counsel of the
Federal Bureau of Investigation.
Our second panel will consist of Mr. David Kris, a former
Associate Deputy Attorney General in the Department of Justice;
Mr. Joe Onek, Senior Counsel and Director of the Liberty and
Security Initiative at the Constitution Project; Mr. Daniel
Collins, also a former Associate Deputy Attorney General and
Chief Privacy Officer at the Department of Justice; and Mr.
James Dempsey, Executive Director of the Center for Democracy
and Technology.
I want to thank you all and the Committee thanks you all
for being here today.
The Committee also has received the views of Professor
Richard Seamon of the University of Idaho College of Law with
regard to section 203 of the draft legislation. Without
objection, Mr. Seamon's letter will be included in the record.
[The information referred to follows:]
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Chairman Roberts. Before recognizing the distinguished Vice
Chairman for any comments he might have, I want to comment
briefly on the draft bill we provided to our witnesses.
This draft bill does reflect, I think, a balanced approach,
addressing both concerns about the use of existing authorities
and identified gaps in investigative tools that are needed. The
draft legislation accomplishes three simple goals.
First, it permanently authorizes nine intelligence-related
provisions set to expire at the end of the year. I believe
there is strong bipartisan support for these provisions.
Second, it extends to national security investigators tools
already used in Federal criminal cases. It does not create new
authority.
And, third, it addresses some of the concerns expressed by
critics of the PATRIOT Act by establishing new reporting
requirements and standards for use of certain tools under the
Act.
Let me emphasize that the investigative tools that this
bill extends to FBI national security investigators are the
same tools that have been used by Federal criminal
investigators for years to access information relevant to their
investigations. For example, the mail cover provision is simply
the statutory authorization of an authority which the FBI has
had under Postal Service regulations for 30 years.
Additionally, the administrative subpoena provision is
similar to 335 other legislatively enacted administrative
subpoenas currently being used by the Executive branch. Such
administrative subpoenas have been upheld against
Constitutional challenges for over 50 years.
In fact, the Secretary of Labor can use administrative
subpoenas to enforce the Fair Labor Standards Act. The Federal
Maritime Commission can issue administrative subpoenas to
support its investigations. And Federal criminal investigators
can use administrative subpoenas in health care fraud, child
pornography, and also any case dealing with drugs or narcotics.
Federal investigators, however, cannot use them to
investigate spies and international terrorists. The Secret
Service can issue an administrative subpoena to investigate
threats against the President, but the President can not use an
administrative subpoena to investigate threats against America
posed by terrorists and spies.
I have yet to hear any reasonable reason to deprive
national security investigators of well-established and long-
used investigative tools. We expect the men and women of the
FBI to protect us and yet some advocate constraints that would
tie their hands, I think unnecessarily. I believe that national
security investigators should be able to use every
Constitutional tool at their disposal to protect the United
States.
This is the Committee's fourth hearing on the USA PATRIOT
Act this year. In prior hearings, the Committee has received
testimony from panels of outside experts, law enforcement and
intelligence officials who have used PATRIOT Act tools in the
field, and the Attorney General, the Director of the FBI, and
the Director of the CIA.
Moreover, with regard to the specific provisions that are
being discussed and considered by this Committee, we have tried
to go out of our way to ensure that every member has had the
opportunity to be fully informed of the provisions included in
the draft legislation. Our General Counsel has briefed the
Members' designated staff and has been available to meet with
any Member to discuss any concern about any provision of the
bill.
Additionally, last week, the Committee held a briefing for
all Members at which counsel from both sides of the aisle went
through the legislation and were available for questions.
Finally, at my direction, the Committee staff has worked
very diligently with those who have concerns about provisions
in the bill in an effort to resolve those concerns. As a
result, the staff has been able to reach a number of agreements
that may be presented at markup as amendments are considered or
as part of a managers' amendment.
More than 3\1/2\ years have passed since enactment of the
PATRIOT Act. Members of Congress have had ample opportunity to
inquire into the implementation of these authorities and to
debate and consider the reauthorization of the expiring
provisions. While fundamental differences will, no doubt,
remain, I am committed to working with any Member of this
Committee in an effort to address his or her concerns prior to
markup.
At this time, I'd like to recognize the distinguished Vice
Chairman, Senator Rockefeller, for any statement he would like
to make.
Vice Chairman Rockefeller. Thank you, Mr. Chairman, very
much, and I welcome our witnesses, all of them. I want to make
just a couple of comments to set my sense of the perspective of
the hearing.
We meet, obviously, to hear testimony on a draft bill,
which makes permanent certain PATRIOT Act authorities, and some
of them are amended and others are added, like the
investigative powers.
I support reauthorizing the PATRIOT Act and I am inclined
to support adding investigative authorities, but only if it can
be shown that these new authorities are necessary and would not
infringe on the constitutional rights of Americans, which is a
subjective subject.
I would like to identify several questions that the
Committee, in my opinion, must address and that I hope the
witnesses will before reporting the bill. The views of the
witnesses, as I indicated, will be greatly appreciated.
The first question concerns the renewal of expiring
authorities.
In its May 18 letter to the Committee last week, the
Department of Justice quoted the President's statement of
earlier this year, in which he said that ``to protect the
American people, the Congress must promptly renew all
provisions of the PATRIOT Act this year.''
Congress, most certainly, will--to use the President's
word--``renew'' all expiring provisions of the PATRIOT Act. In
most cases, I believe that Congress will do that by making
those provisions permanent. But should a new sunset date, such
as in 4 years, be set for a few expiring provisions, much as we
did on earlier ones, in order to ensure they are examined again
before deciding whether they should be permanent? Does one go
from zero to permanency or does one put in a time of review?
For example, the draft bill contains proposals to amend the
FISA title on orders for business records and other tangible
things. In light of this, I think Congress extend rather than
repeal the sunset of Section 215 of the PATRIOT Act on FISA
Court orders for records and revisit this title in a few years
to see how these amendments and others in the draft bill have
worked out.
The second area I raise is the proposed changes to Section
215. The Attorney General has told this Committee and the
Judiciary Committee that the Department of Justice is willing
to support amendments that clarify Section 215 of the PATRIOT
Act on several points. One of those matters is judicial review.
The draft bill that you have is silent on judicial review
of Section 215 orders for business records and other tangible
things. There are discussions within the Committee about an
amendment to carry out the Attorney General's commitment.
I welcome the views of the witnesses about what is required
to make the review meaningful. It will be essential to have
rules that protect national security information. But should
the statute also ensure that the applicant has access to the
nonclassified parts of the Government's case and argument or to
declassified summaries of classified information?
And what statutory language will be necessary to ensure
that the applicant is able to raise, and the Court has the
authority to decide, all appropriate questions of privilege and
unreasonableness?
The third area deserving careful attention, in my judgment,
is that of administrative subpoenas. The draft bill proposes to
give to the Director of the FBI, or designees down to special
agents in charge, the power to issue subpoenas for records in
national security investigations. The Congress frequently
grants subpoena authority to various agencies, boards, and
officials who exercise economic or health and safety regulatory
functions. This is not new. On several recent occasions it has
given subpoena authority to the Attorney General in law
enforcement circumstances. I am not aware of any time in which
Congress has given, directly to the FBI, subpoena authority.
That doesn't make it right or wrong, but I think that needs
to be thought about. I would like to know the views of the
witnesses on a number of questions as we consider providing
this expanded investigative authority:
What is the problem with the Department of Justice's and
the FBI's current authority? The FBI is able to obtain records
through National Security Letters, which are not subpoenas. If
subpoenas or orders for records are needed, the FBI is able to
obtain them--from the FISA Court or by way of grand jury
subpoenas--through the Department of Justice. Has the
Department of Justice demonstrated to the Committee that any
investigations have faltered, even for one critical moment,
because of the lack of administrative subpoena authority? I
don't prejudge this; I raise this question for discussion.
If additional authority is needed, does the draft bill
provide the right authority and the right protections?
As with judicial review of Section 215 orders, do the
provisions on judicial review provide subpoenaed parties with a
fair opportunity, and provide courts with sufficient authority,
to challenge and prevent abuse?
Finally, the Committee would benefit from the views of the
witnesses on two other notable changes contained in the
proposed legislation.
The draft bill calls for an amendment to the definition of
foreign intelligence information. The amendment has the
potential to change the scope of FISA surveillance, search, and
record production authorities. The draft bill also would
provide for a new title in FISA on mail covers, an
investigative power currently set forth in regulations but not
statute.
I will be interested in the views of our witnesses, and I
thank the Chairman.
Chairman Roberts. Our first witness is Ms. Valerie Caproni,
the General Counsel of the Federal Bureau of Investigation. Ms.
Caproni, please proceed.
[The prepared statement of Ms. Caproni follows:]
Prepared Statement of Valerie Caproni
Chairman Roberts, Vice Chaiiman Rockefeller, and Members of the
Committee, it is my pleasure to appear before you this morning to
discuss legislation that would reauthorize many important provisions of
the USA PATRIOT Act and provide important new tools to national
security investigators. Over the course of the last 7 weeks, the
Department of Justice has made its case for why each one of the 16 USA
PATRIOT Act provisions scheduled to sunset at the end of 2005 must be
made permanent. In numerous hearings as well as classified and
unclassified briefings for Members of Congress, we have explained how
the Department has used those authorities contained in the USA PATRIOT
Act to safeguard the safety and security of the American people. Thanks
to the Act, we have been able to identify terrorist operatives,
dismantle terrorist cells, disrupt terrorist plots, and capture
terrorists before they have been able to strike. Moreover, the record
demonstrates that we have done this while protecting the privacy rights
and civil liberties of the American people.
Many of the most important provisions of the USA PATRIOT Act,
however, are scheduled to sunset at the end of this year, and the
Department therefore applauds this Committee for taking up legislation
that would make permanent those provisions of the Act falling under
this Committee's jurisdiction. We are also heartened that this
Committee has come forward with novel and worthwhile ideas for
strengthening the Department's counterterrorism capabilities. Prior to
this Committee's April 27, 2005, oversight hearing on the USA PATRIOT
Act, Attorney General Gonzales and Director Mueller submitted detailed
written testimony on utility of the provisions of the Act that are
scheduled to expire at the end of the year, and I will not repeat that
testimony today.
Rather, I will simply reiterate the Department's strong support for
making permanent those USA PATRIOT Act provisions covered by section
101 of this Committee's draft legislation: sections 203(b), 203(d), and
218, which toppled the wall separating intelligence investigators from
law enforcement investigators and have allowed vital information
sharing of immeasurable value in the war against terrorism; section
206, which provided national security investigators with the ability to
obtain certain court-approved roving surveillance orders that had
previously been available exclusively to criminal investigators;
section 207, which has increased the efficiency of the Foreign
Intelligence Surveillance Act (FISA) application process by lengthening
the maximum duration of FISA electronic surveillance and physical
search orders targeting certain non-United States persons; section 214,
which allows national security investigators to utilize court-approved
pen register or trap and trace devices to obtain information relevant
to international terrorism or espionage investigations; Section 215,
which allows national security investigators to obtain court orders
requesting the production of records relevant to international
terrorism or espionage investigations; and section 225, which provides
those individuals and companies assisting in the implementations of
FISA surveillance orders the same legal immunity granted to those
assisting in the implementation of criminal investigative wiretaps.\1\
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\1\ As called for in section 101 of the Committee's draft
legislation, the Department also supports making permanent section 204,
which is essentially a technical amendment.
---------------------------------------------------------------------------
The Department also supports making permanent section 6001(a) of
the Intelligence Reform and Terrorism Prevention Act of 2004. This
provision, which has come to be known as the ``Lone Wolf '' provision,
allows the government to gain court approval for FISA surveillance of a
non-United States person when there is probable cause to believe that
he or she is engaged in or preparing to engage in international
terrorism, whether or not he or she is known to be affiliated with a
larger terrorist group. While this provision is currently scheduled to
sunset at the end of this year, unfortunately, the threat to the United
States posed by known or apparent Lone Wolf terrorists will not
similarly cease on December 31, 2005. Therefore, the Department
strongly endorses the enactment of section 102 of the Committee's draft
legislation, which would remove the sunset on the Lone Wolf provision.
Besides reauthorizing important counterterrorism authorities that
are scheduled to expire at the end of this year, the Committee's draft
legislation also contains other vital provisions that will enhance the
Department's ability to safeguard the American people from our Nation's
terrorist enemies. Section 216, for example, would extend the maximum
duration for certain FISA surveillance, search, and pen register orders
targeting non-United States persons, thus allowing the Department to
take resources currently devoted to the mechanics of repeatedly
renewing FISA applications in certain cases--which are considerable--
and instead allow them to be focused on other investigative activities
as well as conducting additional oversight of the use of intelligence
collection authorities by the FBI. Indeed, as the Attorney General
testified before the Committee, the Department estimates that, had
these amendments been included in the USA PATRIOT Act, 25,000 attorney
hours that were devoted by personnel in the Department's Office of
Intelligence Policy and Review to processing FISA applications would
already have been saved. That figure, moreover, does not include the
time that would have been saved by agents and attorneys at the FBI. The
bipartisan WMD Commission recently agreed that many of the changes
contained in section 216 would allow the Department to focus its
attention where it is most needed, and to ensure that adequate
attention is given to cases implicating the civil liberties of
Americans. The Department therefore commends the Committee for
including this important provision in its draft legislation.
The Department also supports section 212 of the Committee's draft
legislation, which relates the availability of mail covers in national
security investigations. Mail covers are concerned with recording
information appearing on the outside of mail and thus do not implicate
the reasonable expectation of privacy that exists with respect to the
contents of sealed mail. Notwithstanding the relatively non-intrusive
nature of mail covers, however, the ability to obtain the type of
information they provide promptly and effectively can be of great
importance in the national security context. For example, if there is
information indicating that a person may be involved in terrorist or
terrorism-support activities, information showing that he has been in
contact by mail with other persons who are known to be involved in
international terrorism can be critical to advancing and determining
the priority of the investigation.
As part of reforms made by Congress following the attacks of
September 11, 2001, Congress has already acted to strengthen the legal
procedures for obtaining comparable sender/receiver information in
relation to electronic mail and telephone communications. Specifically,
18 U.S.C. Sec. 2709 provides access to electronic communication
transactional records and telephone toll billing records information,
on certification by FBI officials at appropriately high supervisory
levels that the information is relevant to an authorized investigation
to protect against international terrorism or espionage. But there is
no comparable statutory specification concerning national security mail
covers. The current standards governing their availability are defined
by United States Postal Service regulations, and the determination
whether they will be conducted in particular cases ultimately depends
on decisions by Postal Service personnel.
The FBI is, however, in the best position to assess whether
investigative activity is needed in particular circumstances to protect
against international terrorism or espionage, and whether the use of a
mail cover is warranted in the context of such an investigation. As
noted, Congress has recognized this point in relation to the
corresponding information for electronic mail in existing statutory
provisions. Section 212 would simply extend the same principle and
similar procedures to information observable on the outside of physical
mail and would thus enable the FBI to carry out more effectively its
central mission of protecting Americans from terrorist attacks.
The Department also welcomes section 213 of the Committee's draft
legislation, which responds to the President's call to provide for
administrative subpoena authority in terrorism investigations. In
combating terrorism, prevention is key: we cannot wait to disrupt
terrorist acts or to prosecute terrorist crimes after they occur. To
stay a step ahead of the terrorists, investigators need tools allowing
them to obtain relevant infollnation as quickly as possible.
An administrative subpoena is one such tool. An administrative
subpoena is a request from a government official instructing the
recipient to provide information relevant to the investigation. This
type of subpoena authority would allow investigators to obtain relevant
information quickly in terrorism investigations, where time is often of
the essence.
Like any subpoena, administrative subpoenas are subject to judicial
review. If a recipient refuses to comply with a request for the
production of records, investigators may not simply seize those
records; rather, they are required to ask a court to enforce it.
Furthermore, recipients of administrative subpoenas need not wait for
investigators to go to court. Instead, they may file their own
challenges to the legality of the subpoena. But for those recipients
who wish to assist investigators, administrative subpoenas provide a
mechanism allowing them to quickly turn over relevant records while at
the same time shielding themselves from civil liability.
The constitutionality of such subpoenas is well established, and
executive branch agencies now have the authority to issue
administrative subpoenas in more than 300 other areas. Such subpoenas,
for example, may be issued by the Appalachian Regional Commission,
Chemical Standard and Hazard Investigation Board, Commodity Futures
Trading Commission, Consumer Product Safety Commission, and Corporation
for National Community Service, just to name those departments and
agencies whose names begin with a letter from A to C. These subpoenas
are not, however, currently available in terrorism investigations, even
though the consequences of a terrorist attack could be far more severe
than those of the many other areas in which Congress has permitted the
use of administrative subpoenas. Simply put, the Department believes
that terrorism investigators should have at least the same
investigative tools currently available to the Department in
investigations ranging from health care fraud to child abuse. In 2001,
for example, the Department issued 2,102 administrative subpoenas in
Federal health care investigations and 1,783 in child abuse and
exploitation investigations. Administrative subpoenas are a time-tested
tool, and the Department looks forward to working with the Members of
the Committee on this important proposal.
Before concluding my testimony, three other provisions in the
Committee's draft legislation deserve mention. First, as the Attorney
General recently disclosed, the Department has recently obtained
Section 215 orders from the FISA Court to obtain subscriber information
related to phone numbers captured through court-approved FISA pen
register devices, just as such information is routinely obtained in
criminal investigations through 18 U.S.C. Sec. 2703(d) or a grand jury
subpoena. Section 215 of the Committee's draft legislation, however,
would allow the Department to instead obtain this information simply
through a pen register order issued by the FISA Court. The Department
believes that this proposal would reduce unnecessary paperwork and
increase the efficiency of the FISA application process without
impacting the privacy or civil liberties of the American people, and
the Department is eager to work with the Committee on this initiative.
Second, the Department supports section 214 of the Committee's
draft legislation, which would simplify reporting requirements under
section 108 of FISA. And third, the Department backs the amendment to
FISA's definition of the term ``agent of a foreign power'' contained in
section 201 of the draft legislation.
In closing, the Department welcomes the Committee's effort to
reauthorize critical intelligence tools contained in the USA PATRIOT
Act and to provide terrorism investigators with additional tools
necessary to protect the safety and security of the American people. We
look forward to working with you closely as this bill makes its way
through legislative process, and I would be happy to answer any
questions you may have.
STATEMENT OF VALERIE CAPRONI, GENERAL COUNSEL, FEDERAL BUREAU
OF INVESTIGATION
Ms. Caproni. Chairman Roberts, Vice Chairman Rockefeller,
members of the Committee, it's my pleasure to appear before you
this morning to discuss legislation that would reauthorize many
important provisions of the USA PATRIOT Act and provide
important new tools to national security investigators.
Over the course of the last 7 weeks the Department of
Justice has made its case for why each one of the 16 USA
PATRIOT Act provisions scheduled to sunset at the end of 2005
should be made permanent. I know that time is short this
morning, so I will keep my oral statement very brief, since
written testimony has been submitted.
The Department applauds this Committee for taking up
legislation that would make permanent those provisions of the
PATRIOT Act that fall under this Committee's jurisdiction, as
well as the Lone Wolf provision enacted in section 6001(a) of
the Intelligence Reform and Terrorism Prevention Act of 2004.
We are also heartened that this Committee has taken the
time during these hearings to gain a good understanding of how
the authorities provided for in the PATRIOT Act work in real
life. Additionally, you have advanced new ideas for
strengthening the Department's counterterrorism capabilities,
for which we are appreciative.
We look forward to working with you closely on this bill as
it makes its way through the legislative process, and I would
be happy to answer any questions that you may have this
morning.
Chairman Roberts. Members will be recognized for 5 minutes
in order of their appearance.
Ms. Caproni, in June 2004, before the Senate Judiciary
Committee, Principal Deputy Attorney General Rachel Brand said
this--and I'm quoting.
``In combating terrorism, prevention is key. It is not good
enough to prosecute terrorist crimes after they occur. For the
law enforcement officers, responsibility for staying a step
ahead of the terrorists in these investigations, time is very
critical. Even a brief delay can be disastrous.''
Obviously everybody on this committee understands that.
``These officers need tools that allow them to obtain
information and act as quickly as possible. Administrative
subpoenas are the one tool that will enable investigators to
avoid any costly delays.''
Ms. Caproni, is there any real question in regard to the
constitutionality of administrative subpoenas?
Ms. Caproni. As a general matter, Chairman, no, there's no
question that administrative subpoenas as an instrument are
constitutional. The key is that there needs to be the
opportunity for meaningful judicial review. So long as there is
an opportunity for meaningful judicial review, the courts have
typically upheld the administrative subpoena power.
Chairman Roberts. We need some examples, if you will. Can
you give us some examples of how the FBI might use an
administrative subpoena in an international terrorist
investigation?
Ms. Caproni. Sure. I'll give you two. One actually happened
and the other would be a hypothetical, and I think the one that
actually happened has been discussed previously in hearings.
But shortly after 9/11, investigators were attempting to
run down all leads, and one of their leads took them to a hotel
somewhere--I think it was in Virginia. They wanted and needed,
in connection with the investigation, records of who was
staying at the hotel on a particular night. The hotel was not
being cooperative. I'm not criticizing the hotel, but they were
not being cooperative in this regard.
At that point, they didn't have an AUSA available to issue
a grand jury subpoena, and even if they had, there wasn't a
grand jury sitting the next day that the records could be
returned to. That would be an example where an administrative
subpoena would have been an excellent tool in order to get the
hotel to provide the records that the investigators needed.
To use a hypothetical example, suppose that the
investigators are aware of a particular individual and they
have information that the person is about to do something bad--
commit a terrorist act. And through the course of their
investigation they know that this person has an EZ Pass device
on their car, but they don't know where the person is right
now.
One set of documents that we would want to investigate
would be the records of the EZ Pass device, because that may
well give us a very good lead as to where the car is and where
the car is going. We could use an administrative subpoena to
the EZ Pass organization in order to get those records and to
get them very quickly for purposes of our investigation.
So those are just two examples. I could probably sit here
and come up with lots of hypothetical examples of where the
need to get a record quickly exists and where needing to go to
an AUSA to get a grand jury subpoena may not be the best way to
go, and where an NSL is not available. In neither the EZ Pass
sample nor the hotel example is an NSL an available tool.
And then the other alternative would be to go for a 215
order, and that is not going to be done in a matter of hours.
Chairman Roberts. Now, when Mrs. Brand testified regarding
terrorism, she said we know that terrorism may be the No. 1
threat facing the nation, but espionage certainly remains a
serious concern of the FBI. My question is, would the ability
to use a constitutionally valid administrative subpoena in
espionage investigations also provide the same kind of timely
access that you are asking for to this kind of very crucial
information?
Ms. Caproni. Administrative subpoenas are always going to
be able to provide us with quick access to information. It at
least is a tool that we can use to serve on the party that
holds the records. It may not get us the records because there
could be resistance, but it is at least the tool to start the
process for getting the records.
As this Committee knows probably beyond all other
committees in Congress, certainly in the Senate, espionage
cases are extremely important. Through our history we have seen
incredible damage done to the national security through
espionage, both by virtue of our assets overseas being
compromised as well as secrets that we hold within the
government being compromised to other countries.
And for those reasons espionage cases are extremely
important. So anything that we can do in order to get records
in connection with those investigations quickly is important to
the FBI.
Chairman Roberts. I have one other observation, but in the
interest of time and with my time running out, I recognize
Senator Rockefeller.
Vice Chairman Rockefeller. I'm going to continue a little
bit on the same track but put it differently. Do you have any
examples of where FBI investigations in fact faltered even for
a moment because of the lack of administrative subpoena
authority? Can you give an example?
Ms. Caproni. I think the example with the hotel was one
where it faltered for a while. We ultimately were able to get
the records, and in that case it did not result in harm to the
national security.
But it could have. And that's the problem with a lot of
these tools; is we need the records, we need them quickly. Can
we show you that because we didn't get the record a bomb went
off? We cannot.
Vice Chairman Rockefeller. And was that a period of several
hours?
Ms. Caproni. I think it was several hours; that's correct.
Vice Chairman Rockefeller. That can make a difference.
Ms. Caproni. It certainly can make a difference. It doesn't
always, but it certainly can make a difference.
Vice Chairman Rockefeller. Again, how many statutes--and,
if you can, name some of them--confer administrative subpoena
authority on the FBI Director.
Ms. Caproni. There are a number of them. The ones that
immediately come to mind and the ones that are probably used
most often are the ones that provide administrative subpoena in
narcotics cases and administrative subpoenas in health care
fraud and child pornography cases. Those are the ones that are
used the most.
Vice Chairman Rockefeller. And that we've discussed in the
committee. I thank you for that.
The draft bill provides for administrative subpoenas for
records. It does not provide to administrative subpoenas for
testimony. Does the administration agree that the
administrative subpoena authority should be limited to records
and should not include testimony?
Ms. Caproni. I think we're prepared to discuss that. I
think as a realistic matter during the course of national
security investigations and terrorism investigations the
likelihood for needing testimony is low. Whether it's
nonexistent, I'm not prepared to say that. But it is unlikely.
Again, the real need for speed typically resolves around
the need for documents. If the FBI agents need to talk to
someone, they will make efforts to talk to them. If they need
to compel them to come forward, which an administrative
subpoena for testimony would, that would be a different issue.
And up to now I have not heard a lot of complaints that that's
what the agents need in order to further the investigation and
they don't have that authority.
Again, there's always the possibility and the available,
though not immediately, to get a grand jury subpoena and to
compel the person to appear before the grand jury to provide
testimony.
Vice Chairman Rockefeller. I'm right, aren't I, in
suggesting that National Security Letters do not have anything
attached to them that gets you a subpoena?
Ms. Caproni. That's correct. The National Security Letter
is a request for documents.
Vice Chairman Rockefeller. So it would have to be the
administrative subpoena authority or else it wouldn't work.
Ms. Caproni. To get the documents through compulsion, the
administrative subpoena compels the party who receives the
subpoena to provide us with the documents. The National
Security Letter requests the documents.
Vice Chairman Rockefeller. My final question is, what
current problems exist for the FBI and the Postal Service in
the requesting, receiving and carrying out of mail cover
authorities, and how would establishing these authorities in
statute rectify those problems?
Ms. Caproni. I don't want to say that there are problems
between us and the Postal Service. We have a long history with
the Postal Service which is a warm and cooperative
relationship. Postal Inspectors sit on the Joint Terrorism Task
Forces and we work very well together with the postal
authorities.
However, the current regime for mail covers, as you've
noted, is a regulatory regime. And under the current regs the
requirement is that a request for a national security mail
cover has to come from a high FBI headquarters official, and
there are a limited number of individuals within the Postal
Inspection Service that are then authorized to actually execute
the mail cover.
Further, as it is written, it gives to the Postal Service
discretion to decide whether or not to actually execute the
mail cover. As a philosophical or jurisprudential matter, it is
odd, to say the least, that the FBI is the agency that is
charged with protecting the country from terrorist attacks and
from spies, and yet our ability to use this very basic tool of
a mail cover is charged to the discretion of another agency.
Vice Chairman Rockefeller. Thank you. In my remaining 14
seconds, in the last year how many National Security Letter
requests have not been complied with, that you can think of?
Ms. Caproni. Well, one ended up in litigation, and that
National Security Letter has not been complied with.
Vice Chairman Rockefeller. So one?
Ms. Caproni. I know of one. I do not know the number of how
many have not been complied with. I know that there are times
when we have less than quick compliance from the party on whom
have served the National Security Letter on.
Vice Chairman Rockefeller. I thank you, and I thank the
Chairman.
Chairman Roberts. So basically your answer is that it is
more subjective in terms of the time required. I don't know as
we could put a criteria on that in terms of a timeframe, but
you might want to get back to the committee with a further
statement on that, as opposed to a particular incident or the
number from the timeframe. Of course you already spoke to that
prior to that, but it might be a little difficult to say 6 or 7
of 27, for that matter, in regards to the time.
Ms. Caproni. We will try to get the Committee information
in terms of the speed with which we get compliance with
National Security Letters.
Chairman Roberts. I think that would be helpful to Senator
Rockefeller's question.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Mr. Chairman, first a little bit of business. I would hope,
Mr. Chairman, that Thursday's markup would be held in an open
session. It seems to me that there is so much that we have to
do in closed session because of the implications for national
security that that's appropriate, but I don't think that's the
case here.
I think this is a matter of great public concern, and I
just wanted to weigh in and say I hope that Thursday's session
can be done in public.
Also, Mr. Chairman, we still have not heard from the FBI on
the matter of the so-called discrete inquiries that are made of
libraries. I've asked for this information more than a month
ago, and it certainly causes me to wonder exactly how many of
these so-called discrete inquiries are made. And I've been told
that we can't even get a timetable when the department will get
us that information. I just want to say I remain concerned on
it.
Chairman Roberts. Well, as the Senator knows, we are
backing him up on his questions for the record, and I will take
his suggestion for an open meeting under advisement.
We have had now three open meetings, but I intend to ask
questions, event-oriented, that deal with classified
information from the intelligence community on how the PATRIOT
Act actually works. So we're going to have to go through that
and make a determination. My off-the-cuff commentary is that
that might be very difficult to do.
But I thank the Senator for his suggestion and he is
recognized for 5 minutes.
Senator Wyden. I thank the Chair for his thoughtfulness,
and I do appreciate your consideration.
It seems to me, Ms. Caproni, the heart of your case is that
you feel that it is now time to intertwine the criminal justice
system and the intelligence system. In effect, what's used for
criminal investigations should be used for foreign intelligence
operations. And you are certainly blurring the lines here in a
way that concerns me.
Foreign intelligence investigations have to be much more
secretive. They don't require evidence that a crime has been
committed. They are broader. Tell me what the argument is for
making this dramatic shift now in public policy and sort of
intertwining these two areas the way you do and essentially
giving us the argument that what you use in a criminal
investigation now should be used in a foreign intelligence
investigation.
Ms. Caproni. Senator, I think I have a couple of different
answers to that. First off, I don't think there's ever been a
bright line nor should there have ever been a bright line
between criminal on the one side and foreign intelligence/
national security investigations on the other side. That to
some extent, as the FISA Court of Review said, is a false
dichotomy.
The reality is that many of the things that we investigate
as foreign intelligence matters are also criminal conduct.
Furthermore, individuals who are agents of a foreign power
commit crimes. So there is inevitably a cross-over between the
two notions of a foreign intelligence investigation and a
criminal investigation.
The second relates to the use of tools. I don't think we're
suggesting that there should be a cross-over of the tools. I
think what we're suggesting is that administrative subpoena
power has been available in criminal investigations for a long
time, and it's available in lots of different sorts of criminal
investigation. It is a great tool for investigators. It has not
supplanted other tools. The reality is that grand jury
subpoenas are still used in narcotics cases, in health care
fraud cases, and in child pornography cases, though
administrative subpoenas are also used in the same
investigations.
Criminal investigators have the opportunity to decide what
is the best tool in this particular incident to get the
materials that I need for this investigation. It's anomalous
and odd that in national security investigations, where we're
trying to protect the national security of the country, that
same tool and that same ability for the investigators to look
at the situation and say what's the best tool for me to use
here--is the best tool for me to use to walk down the street to
my friendly AUSA and say, ``Hey, let's open a grand jury
investigation on this,'' or is the best tool to use is to come
to headquarters and say we need a 215 order, or is another tool
a better tool.
We believe--and we have been saying this now for several
years--that an administrative subpoena is a tool that we need
in national security investigations.
Senator Wyden. As I read the administrative subpoena
proposal that you've made, essentially without going to a
judge, an FBI field office head can basically go and ask
anybody for anything, just asserting that it's constitutional
and relevant to an investigation. Tell me how you would differ
in terms of your assessment of it?
I mean, I can see somebody in a regional office showing up
at a hospital, saying I want all the records of the patients.
The hospital administrator could hand them over unless later on
he wanted to challenge it in court. Tell me where the checks
are in this kind of process.
Ms. Caproni. The checks, Senator, are the same checks that
exist in other processes.
Senator Wyden. After the fact.
Ms. Caproni. Well, with an administrative subpoena the
check is both after the fact from a judicial standpoint but
there is a before-the-fact check as well, which is agents are
bound by the Attorney General guidelines in conducting their
investigations. There is an attorney in every field office in
this country who is responsible for making sure that agents
don't go off on wild tears.
To legislate, respectfully, from the position of some agent
somewhere may screw up is not how we would like to see you
legislate. We put checks in place. There are judicial checks in
place. This committee exercises oversight and gets to see how
the FBI uses the tools that we have been provided.
We believe that from an internal perspective it would be--I
can assure you that the Director would have some harsh words
for the SAC who authorized an agent to serve an administrative
subpoena for all records of a hospital in connection with a
national security investigation. I'm not saying it's not
possible that that would be the correct way to go, but I can
assure you that we would have wanted to hear about it at
headquarters and talked through those issues.
So I think that from the standpoint of the FBI as an
organization that is steeped in the need to comply with the
Constitution, we need to respect the privacy rights of
individuals, I don't think an administrative subpoena from this
standpoint for those investigations is any more subject to
abuse than the administrative subpoenas in the other fields
where we have the ability to serve administrative subpoenas.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Roberts. Senator Bond.
Senator Bond. Thank you, Mr. Chairman.
Ms. Caproni, I agree with you that certainly while
narcotics violations, health care fraud and child pornography
are critically important issues, national security should at
least be treated with the same degree of power for the FBI
agents.
You have said that the agents are bound by the Attorney
General's guidelines and if somebody screws up there will be
harsh words. Now I'm not sure harsh words will satisfy people.
What other remedies are offending agents, who get off the
reservation, likely to face and what is the sanction against
some agent who may go on an unwarrantedly broad fishing
expedition?
Ms. Caproni. Well, again I think in the first instance we
try to prevent those unwarranted fishing expeditions.
Senator Bond. Right.
Ms. Caproni. Along those lines, though, to the extent we
gathered up a bunch of information on individuals that had
nothing to do with the national security investigation, that
information would be clamped down. It wouldn't be generally
available to the agents to simply go pawing through.
An agent who intentionally engages in misconduct is subject
to discipline. They are subject to being investigated. They are
subject to being suspended and being fired if they
intentionally engage in misconduct during the course of an
investigation.
Senator Bond. That's the point I wanted to raise.
With respect to administrative procedures, you've touched
on it. Can you go through for us the other safeguards that are
in place to protect affected U.S. citizens and legal aliens in
the issuance? What are the panoply of protections to safeguard
their constitutional rights?
Ms. Caproni. We'll start with the way the bill works right
now. An administrative subpoena would have to be authorized by
the special agent in charge of the individual office. That
means, as a practical matter, it has to come up the chain of
the FBI within the field office, which means that an attorney
would look at it, and they would review it to determine whether
or not it is in compliance with the Attorney General guidelines
for national security investigations. That would be the first
check.
The second check would be on the individual who receives
the subpoena. A hospital who receives a subpoena for all of
their health records is likely to move to quash it.
Senator Bond. So there is a judicial remedy before they
comply? They do have access to the courts to challenge the
subpoena if the recipient of the subpoena views it as unduly
broad?
Ms. Caproni. Correct. Under the bill that this Committee is
considering, the recipient could move to quash or move to
modify.
Senator Bond. How frequently does that happen in other
settings? In what percentage of the cases are those
administrative subpoenas which the FBI is now empowered to
issue challenged in court and what is the success rate of the
challenge?
Ms. Caproni. Senator, I don't have those statistics, but it
is a rare motion to quash. But that's not surprising. Motions
to quash grand jury subpoenas are also rare. The reality is,
these tools are typically served on third party custodians.
They will move to quash if you are going to shut them down in
order for them to comply with the subpoena.
But as a general matter, investigators narrowly tailor
their requests. Investigators don't like to have to paw through
lots of irrelevant documents. So with a narrowly tailored
request to a third party document custodian, the percentage of
custodians who move to quash is very low.
Senator Bond. Do they succeed very often?
Ms. Caproni. Generally not.
Senator Bond. All right. You have mentioned the hotel
example. Are there other examples that you can tell us in an
open hearing or are there examples that you can describe to us
in a closed hearing where the enhanced authorities, the broader
enhanced authorities, would have been useful in the post-9/11
terrorist investigation? Any other things that come to mind or
are there things that you can share with us with a different
setting?
Ms. Caproni. I don't think there are any others that I can
share in this setting. Certainly any time the materials that we
need were stuff that was not available through a National
Security Letter, so that we had to resort to other tools, any
of those examples would be good examples of where an
administrative subpoena would have been helpful.
Senator Bond. And we may have the opportunity to learn more
about that in another setting.
Just very quickly, the modification in Title II, section
211, the addition of the explicit relevance requirement, how
could that enhance your authorities?
Ms. Caproni. Senator, I don't think it enhances our
authority, but it certainly clarifies the law in a way that
some have objected to. So we would support the notion of
clarifying that the standard to be used in a 215 order is that
the materials are relevant to a national security
investigation.
Senator Bond. Thank you, Mr. Chairman.
Chairman Roberts. Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
I'd ask that my full statement be incorporated in the
record.
Chairman Roberts. Without objection, it is so order.
Senator Feinstein. Thank you, Mr. Chairman.
[The prepared statement of Senator Feinstein follows:]
Prepared Statement of Hon. Dianne Feinstein
I thank you for holding this open hearing to discuss the
Committee's draft legislation to reauthorize and amend the PATRIOT Act
and to provide the executive branch with new authorities to use in the
war on terror. It would be my preference to hold our mark-up on this
legislation in an open forum as well and urge you to consider that
course of action.
The PATRIOT Act was enacted just 45 days after the September 11,
2001 attacks after less than 1 month of Congressional debate. Congress
moved quickly to provide new tools for prosecuting the war on terror,
fearing that more attacks might come at any moment. As a safeguard, we
built in a mechanism to force review and reconsideration of several
sunset provisions.
After careful review on this Committee and on the Judiciary
Committee, I am now prepared to support the reauthorization of the
intelligence-related PATRIOT Act provisions. In reaching this position,
I have reviewed both the implementation of the authorities by the
Department of Justice and the FBI and the allegations of misuse. I have
found that the implementation has been reasonable in scope and tailored
to the needs of our intelligence and law enforcement communities. Some
have stated that it is only because of the sunsets placed in the
PATRIOT Act that the FBI has tread lightly for now, and that abuses are
more likely to occur in the future. For this reason, continued
Congressional oversight will remain critically important.
I also support several provisions included in Title II of today's
legislation, such as the ones extending the duration of surveillance
orders and reporting requirements to Congress in order to reduce
bureaucratic hurdles at the Department of Justice. It is my hope that
this will allow Justice and FBI employees to spend more time conducting
intelligence investigations than passing papers through the
bureaucracy. Perhaps that can be a first step in much larger changes
that are needed to turn the FBI into a true intelligence agency, and
not a place recently described by the Inspector General as one where
professional analysts are treated like clerical staff.
Finally, I support the legislation's language to add protections to
Section 215 of the PATRIOT Act (the Business Records section). This
section adds an explicit ``relevance'' standard to the law; provides
useful relief from the nondisclosure provision without risking
intelligence operations; requires minimization procedures to protect US
Persons; and recognizes the sensitivity of library and bookseller
records, gun purchases, health information, and tax forms.
I thank you, Mr. Chairman, for including these changes to the
Business Records section. They respond to the concerns this committee
has heard that the language was too broad, but they won't get in the
way of conducting effective counterterrorism investigations. I believe
this is the model that the Congress should follow: reviewing the
implementation of existing law, addressing legitimate concerns, and
reviewing requests for additional authorities.
In this light, I am concerned with two sections of this legislation
and hope they will be removed or modified at mark-up.
Section 203 adds criminal prosecution to the definition of foreign
intelligence. Supporters of this section say this language is necessary
to remove forever the so-called ``wall'' between intelligence and law
enforcement. In fact, this provision goes much further than that. This
language would, in effect, eliminate the much-needed distinction
between intelligence conducted under FISA and traditional law
enforcement, by making law enforcement a subset of foreign
intelligence.
We have heard time and time again that information sought for
either intelligence or law enforcement purposes have to be shared
quickly and fully to the other. Removing the wall between the two, both
when requesting investigative authorities under FISA and in sharing
information so gathered, was the most important achievement of the
PATRIOT Act, particularly under Section 203.
The Act, however, recognized that FISA needs to remain rooted in
the intelligence world and should not be used exclusively as a law
enforcement tool. Intelligence is a prospective effort where any
information possibly available is collected and analyzed to enhance our
understanding of possible future actions. Criminal prosecution is, by
definition, a backwards-looking action, where law enforcement seeks
information in connection with one or more specific events. In
hindsight, it is possible to say what is and what is not relevant to an
investigation. Despite arguments to the contrary, there is no abiding
reason why law enforcement and intelligence investigations should
proceed under the same governing authorities. There is no need to lump
``criminal prosecution'' into the definition of foreign intelligence as
this legislation would do.
In 2001, Congress struggled with the right formulation to
specifically allow intelligence and law enforcement personnel to be
involved in the same investigation. To that end, I worked with Attorney
General Ashcroft to write the ``significant standard'' language,
incorporated in the PATRIOT Act as Section 218. This language replaced
the ``primary standard'' that the Justice Department had used in
practice for so long. The new standard allows the FBI to use FISA
authorities for law enforcement, including prosecution, so long as
there is a ``significant'' intelligence purpose of the investigation.
The FISA Court of Review commented on this specific point and found
that this language is the only thing stopping the FBI from pursuing
FISA warrants solely for law enforcement matters involving
international terrorism. I believe this is a good thing, and thus
oppose section 203 of today's legislation, which would remove this
boundary between intelligence and law enforcement.
Since enactment of the ``significant purpose'' test I have heard
not a single argument from either our law enforcement or intelligence
elements that this fix did not solve the problem. In fact, Attorney
General Gonzales, in his April 5, 2005 remarks on the Patriot Act had
this to say about the current law: ``Section 218 of the Act, in
particular, helped to tear down the ``wall'' by eliminating the
``primary purpose'' requirement under FISA and replacing it with a
``significant purpose'' test. Under section 218, the Department may now
conduct FISA surveillance or searches if foreign-intelligence gathering
is a ``significant purpose'' of the surveillance or search. As a
result, courts no longer need to compare the relative weight of the
``foreign intelligence'' and ``law enforcement'' purposes of a proposed
surveillance or search and determine which is the primary purpose; they
simply need to determine whether a significant purpose of the
surveillance is to obtain foreign intelligence. The consequence is that
intelligence and law enforcement personnel may share information much
more freely without fear that such coordination will undermine the
Department's ability to continue to gain authorization for surveillance
under FISA.''
I note that in its recent statement on the pending legislation, the
Department of Justice supported several provisions, but provided no
support for this section.
Second, I am troubled by the addition of administrative subpoenas
in this legislation. I want to make clear that I am not opposed to
providing the FBI and the rest of the Intelligence Community with new
tools. But we should do so only where there is a clear and compelling
need and suitable checks on investigative authority.
To be sure, the Bush Administration has requested administrative
subpoena authority for counterterrorism many times. But that request
has been for subpoena authority for the law enforcement side of the
FBI, not under FISA. In fact, Director Mueller has repeatedly told me,
and the Judiciary Committee, that his highest priority legislation was
a Title 18 administrative subpoena for terrorism cases. I have heard no
similar requests, and certainly neither the Director of Central
Intelligence or his successor, the Director of National Intelligence,
for this remarkable expansion of the intelligence powers granted to the
FBI.
It is one thing to have administrative subpoena in the criminal or
regulatory context--in fact, supporters of the criminal administrative
subpoena have often argued that there are more than 300 other such
subpoena now authorized by law. It is entirely different to add a
sweeping new power to the intelligence arsenal.
Let me be clear--if this provision is passed into law, all of our
discussion about Section 215 will be rendered superfluous, as the
administrative subpoena--with no judicial supervision of its issuance--
would replace the FISA business records. When the Attorney General
recently told this Committee that he supported adding the ``relevance''
language to Section 215, I cannot imagine that he took this position
with the knowledge or expectation that we would soon pass a separate
law making Section 215 obsolete.
Section 213 of this bill would allow FBI officials at the field
office level the authority to subpoena any ``records or other materials
that are relevant to an authorized investigation. . . .'' This
authority could be delegated to a Special Agent in Charge, with no
prior approvals from any subordinate to the Attorney General, from any
court, or even by a prosecutor as is done under a grand jury subpoena
arrangement.
The only case where such a sweeping authority could be justified is
where a field agent needs intelligence information so quickly that a
FISA Court order, National Security Letter, or grand jury subpoena were
impossible to obtain. Yet this legislation does not limit the use of
administrative subpoenas to such exigent circumstances. Indeed, as I
have said, this authority would have the effect of making FISA business
records requests obsolete.
The idea of replacing the most controversial authority in the
PATRIOT Act with one that doesn't even contain prior approval and can
be used in basically any national security investigation is not
responsible lawmaking. I urge that this committee use the mark-up to
address some of these concerns.
Senator Feinstein. Thank you, Mr. Chairman. The reason is
because I express my concern with two sections. One of them is
what is happening today on the administrative subpoena. And I'd
like to speak as a member of the Judiciary Committee.
We had a hearing last year in my subcommittee, Technology
and Terrorism, on Senator Kyl's bill. At that time Mr. Mueller
asked for an administrative subpoena under Title 18, a criminal
administrative subpoena, not under Title 50. As I understand
it, the FBI has always maintained that the Title 18 criminal
subpoena, not a FISA administrative subpoena, was its top
legislative priority in this area. Am I correct?
Ms. Caproni. Senator, I believe the FBI's priority is for
an administrative subpoena. The issue of whether it's under
Title 50 or Title 18 I have not personally discussed with
Director Mueller, but I believe we would like administrative
subpoena authority.
Senator Feinstein. Well, let me just say that's my
recollection as a member of the Judiciary Committee, that it
has always been Title 18. And I'm very concerned about this, so
I just want to say I'm drafting an amendment which would
replace section 213 of Senator Roberts' bill with a provision
to give the FBI the criminal administrative subpoena authority
it requested, with two limitations. The first is a requirement
that the FBI only use this new power in circumstances for which
it is needed, where there are emergency circumstances which
prevent the use of existing mechanisms, such as the one you
just described, and the existing mechanism, of course, would be
a grand jury subpoena.
And second, a requirement that a Department of Justice
Assistant U.S. Attorney sign off on this subpoena, perhaps only
via telephone, but at least there is some check and balance on
the use of that subpoena.
I'd like you to take that back to the FBI. I'd like to get
an opinion of it. But I'm very concerned. This is the first
time I have ever heard the request for a Title 50
administrative subpoena, and if there is such a request
anywhere in writing by the FBI, I'd like to have it, if I
might.
Ms. Caproni. Senator, again the FBI has been very
consistent that we would like administrative subpoena
authority. The issue of whether it's in Title 18 or Title 50 I
don't express any opinion on.
I am prepared to address the issue of whether there should
be an emergency requirement or the requirement of an AUSA
signoff on it.
Senator Feinstein. If you would, that would be great.
Ms. Caproni. As you know, those requirements do not exist
in any other administrative subpoena that we currently have.
And the reality is that--again to go back to my answer I
believe to Senator Wyden--it's anomalous to have different
standards that are applied when the FBI is conducting national
security investigations, the most important investigations that
we conduct, that are not present in routine criminal
investigations.
In terms of an AUSA signoff, I love AUSAs--some of my best
friends are AUSAs, I'm a former AUSA. So I'm not denigrating
AUSAs. They are great people. However, it seems to me that
asking for an AUSA to sign off takes us back to the world where
the answer to terrorism was criminal prosecution. That's how
you need to think. You need to think about criminal
prosecution. I think it subtly sends the message to the agents
who are conducting these investigations that a criminal
prosecution is necessarily part of the answer here.
Again, AUSAs are great people, but it's sort of like going
to a surgeon for a tummy ache. They're going to take out your
appendix. They cut. AUSAs prosecute.
Senator Feinstein. My time is almost up. Let me just
indicate, Mr. Chairman, what my concern is.
This is a very broad power. When used directly, the
individual would know about it. In this case, they would have
no recourse to court. If it's used in a secondary way, not
affecting the individual, such as you go to somewhere to
collect data that the individual would not know, there really
is no check on the power.
So you're really giving this subpoena carte blanche to go
out on any kind of fishing expedition, with no necessary
stricture that determines exactly how it can be used. And
that's why I think some form of signoff, just as judges are
duty judges and they sign off on certain things, it seems to me
that the U.S. Attorney should provide that kind of a signoff,
just as a guarantee. Because this is a new area.
Chairman Roberts. I thank the Senator for her views. We are
under a rather strict time limit.
Senator Hagel.
Senator Hagel. Mr. Chairman, thank you.
Ms. Caproni, as you have noted generally this morning,
administrative subpoenas have been used and are being used. And
I'd like to ask a question regarding how the administrative
subpoena function in the PATRIOT Act differs, if it does, from
what the FBI has used in the past regarding using the
administrative subpoenas for drug enforcement.
Ms. Caproni. I'm sorry, you mean the administrative
subpoena proposal that's in this bill?
Senator Hagel. Yes, is there a difference? Would there be a
difference?
Ms. Caproni. I think it would work essentially the same
way, depending on how it gets delegated down into the field.
Senator Hagel. How far down into the field--special agent
in charge? Do you think that's appropriate, to push it down
that far?
Ms. Caproni. Yes, I think it is appropriate to push it down
that far, and in fact, if it wasn't pushed down to the special
agents in charge of the field offices, its benefit to the
Bureau will be limited. The advantage of having it pushed to
the field office level is that you have, one, a high-level FBI
agent, the special agent in charge, who has to sign off on it.
So you have accountability and you have someone who's charged
with running an office and is a member of the senior executive
service. They have come a long way within the Bureau and they
are charged with making sure that we conduct our investigations
appropriately.
If it's not delegated down to the special agent in charge
and everybody has to come back to headquarters, that again will
slow things down and it will make the tool not nearly as
effective to the agent in the field as it is in the other sorts
of investigations--again, narcotics, health care and child
pornography.
Senator Hagel. In order to issue these subpoenas, the
desired information must be relevant to the investigation. Can
you explain why the relevance standard is particularly
appropriate in regard to the subpoenas that we're talking about
today and how that works? What are the limitations and
difficulties you've had in the past, in drug enforcement, for
example?
Ms. Caproni. Well, in drug enforcement that would be the
same standard. Are the materials that you're seeking relevant
to the investigation you are conducting? Relevance is a
standard that agents understand. They are taught from the time
they come into Quantico that they need evidence that is
relevant, that it tends to prove something that's important to
the investigation. So it's a concept that's familiar to them.
In certain prior provisions that were modified as part of
the PATRIOT Act there was a higher standard that had to be met
for certain tools. National Security Letters, for example. It
used to be that you had to show specific and articulable facts
that the records were relevant to an agent of a foreign power.
That essentially meant that you needed to know where you were
going before you got the basic tools to determine whether or
not the person was an agent of a foreign power.
The PATRIOT Act reduced that to a relevance standard across
all the tools, which we think is appropriate. Again, it's a
standard that everyone understands. It means that you cannot
simply go on a wild fishing expedition for matters that have
nothing to do with the investigation that you're conducting.
Senator Hagel. If I could go back to a general question on
administrative subpoenas, you have provided this Committee here
in the last few minutes with some specific examples of uses.
Focus on the potential use of this administrative subpoena
for dealing with terrorists. Give the Committee a couple of
examples of how you could see this would be particularly
important in dealing with terrorists.
Ms. Caproni. The example I started with would be, we know
the terrorist or we believe the terrorist is about to do
something bad. We don't know exactly where he is. We want his
Easy Pass records. That would be a record that is not
obtainable by an NSL and to get it through a 215 order would
require coming to Washington, writing up fairly detailed papers
in order to get it.
Senator Hagel. So timeliness would be one dynamic of this.
Ms. Caproni. Timeliness is a huge dynamic. I think the
other dynamic is that as investigators work there is something
to be said about being able to stand in front of the person,
ask for the records. When the person says no, either I can't
give them to you or I won't give them to you, to be able to
come back promptly and say here's the instrument that requires
you to give them to me, if you still don't want to give them to
me, you have to go to court.
But that dynamic of being able to keep the investigation
moving forward and get the documents and the materials that the
investigator needs to continue the investigation are important.
Those are important aspects of an administrative subpoena.
Senator Hagel. Mr. Chairman, thank you.
Chairman Roberts. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman. Welcome to
the Committee. We're happy to have you here again, and we
appreciate the testimony you give because of your experience
and background, just to mention a few things.
Now, as I understand it, as one who worked very strongly on
the PATRIOT Act, it's been used very efficiently and well by
the FBI, the Justice Department and other law enforcement
personnel in protecting us ever since 9/11. Isn't it true that
before the PATRIOT Act we were not up to speed with regard to
the laws regarding international terrorism?
Ms. Caproni. Senator, it's certainly the case that there
were many of our tools that were used in national security
investigations that had not been updated to recognize the
reality of a world where Internet communication was a very
common way that individuals communicate, that tradecraft
required agents of foreign powers to move and change telephones
very quickly. Those sorts of tools were definitely in need of
update, and the PATRIOT Act did that.
Senator Hatch. How many layers of FBI hierarchy look at the
use of administrative subpoenas before agents in the field use
them?
Ms. Caproni. If this bill passes, as it's laid out, it
would certainly go from a line agent to a supervisor, probably
to an assistant special agent in charge, through the chief
division counsel, who is a lawyer, to the special agent in
charge.
Senator Hatch. So there are lots of checks.
Ms. Caproni. There are lots of checks.
Senator Hatch. A lot more checks then you have in general
anticrime laws where the administrative subpoena is in use,
right?
Ms. Caproni. That's correct. It is quite easy for an agent
to issue an administrative subpoena. Again, this bill requires
it to go up to the special agent in charge. And I would note
that that is more review certainly in some offices than a grand
jury subpoena gets.
When I was a brand new AUSA, I could issue a grand jury
subpoena by reaching in my drawer and typing it up, and I was
still wet behind the ears.
Senator Hatch. In section 211 and 213 of the proposed bill
there are significant provisions for congressional oversight,
including specific reporting for libraries, book sellers and
others. Are there examples of terrorists using libraries for
these activities?
Ms. Caproni. There are certainly examples of where spies
have used computers that are located within libraries in order
to engage in communication activities. I think we've probably
provided another example of where an individual, who I guess
could be considered a terrorist, posted a bomb threat on an FBI
web site. That individual did that from a library computer.
So libraries are certainly used in the course of terrorist
conduct.
Senator Hatch. And, of course, that illustration of the
Uni-
bomber is one that's often used as well.
Ms. Caproni. That's correct. The Unibomber, the book that
he received through his local library was certainly a valuable
piece of evidence tending to point to him as being the
Unibomber during the period of time when they were trying to
put together a search warrant.
Senator Hatch. So looking in libraries is not a relatively
new thing.
Ms. Caproni. It's definitely not relatively new, but I
would also say that the FBI going to libraries to get records
is an extremely rare thing. It is not something we do every
day. It is not common. We've tried, in response to questions
from this committee as well as from other committees, to try to
figure out how often and what were the circumstances that we
received materials from libraries. I know Senator Wyden has an
outstanding question for the record concerning the FBI's
appearance in libraries to get materials.
We don't track records that way. We don't track conduct
that way, although if this bill was passed and we issue
subpoenas to libraries it will certainly be something that we
would have to keep track of. But it's not something that we do
every day--very different from a phone company or an ISP, where
we regularly receive records from them.
Senator Hatch. In fact, you've hardly used that power so
far.
Ms. Caproni. The 215 power?
Senator Hatch. Right.
Ms. Caproni. That's correct. The AG declassified the
numbers, and it was less than 40.
Senator Hatch. OK. I want the FBI to get the information
they need. I also want people to feel secure in conducting
legal business in the country. Now, how do you assure us that
administrative subpoena powers will stay in check?
Ms. Caproni. Again, as this bill has set out, there are
several things that would keep this power in check. One is that
we are still bound by the Attorney General guidelines. The
subpoenas can only be issued if they are relevant to an
investigation. The party receiving the subpoena, just like the
recipient of any other administrative subpoena that the
government has the power to issue, has the power to go to court
to move to quash it. That is, the ultimate power lies in the
hand of the recipient. So there's the possibility of judicial
review.
This bill asks for extensive reporting of the use of it. So
this committee and the other intelligence committee, if this
bill passes, would have the ability to provide oversight.
Senator Hatch. Thank you. Thank you, Mr. Chairman.
Chairman Roberts. Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
You indicated in response to Senator Rockefeller that there
was only one case known to you where a National Security Letter
was challenged in court. Can you tell us approximately how many
of those NSLs have been issued? Is it in the hundreds a year?
Ms. Caproni. That number is classified; I'm sorry. It's a
classified number. It's provided to this Committee as part of
our regular reporting.
Senator Levin. I see. But it's not classified that you only
know of one that's been challenged? That's not classified?
Ms. Caproni. That case is a public case. It's a public
case. It's DOE versus Department of Justice or Ashcroft. I
don't remember.
Senator Levin. Are you able to tell us in an unclassified
setting whether the number of NSLs is in the hundreds or
thousands a year? Can you give us a range in a public setting?
Ms. Caproni. I can't, but it is a very rare action to have
an NSL challenged.
Senator Levin. No. How many are issued is the question.
Ms. Caproni. I can't give you that number in open session.
Senator Levin. Not even a range or an estimate? So we don't
know if it's a hundred, a thousand, ten thousand a year?
Ms. Caproni. I'm sorry. I'll provide you the exact number
in a classified setting.
Senator Levin. No problem.
On the administrative subpoena issue, currently, as I
understand your testimony, there are three places where
administrative subpoenas can be issued. Is that correct?
There's three areas--drug enforcement----
Ms. Caproni. I think there are like more than 300 different
types of administrative subpoenas. The ones that intersect most
commonly with the FBI are in narcotics, health care fraud and
child pornography cases. There are many other administrative
subpoenas.
Senator Levin. And in those cases, in those three types of
cases, where there is common intersect, right now nobody below
the agent in charge, special agent in charge, inside the FBI
can authorize it, but there are people in the Justice
Department that can authorize it. Is that accurate, in those
areas?
Ms. Caproni. I don't think that's accurate.
Senator Levin. Can anyone below a special agent in the FBI
authorize it?
Ms. Caproni. I believe they can in narcotics cases and also
in child pornography cases. I'm not positive, but I believe
they can.
Senator Levin. In the bill that you support, nobody below
the special agent in charge in the FBI could authorize it, or
somebody in the Justice Department; is that correct?
Ms. Caproni. That's how this bill is written.
Senator Levin. Is that what you support?
Ms. Caproni. We support the notion of administrative
subpoenas.
Senator Levin. I got that, but do you support authorizing
people below the special agent in charge in the FBI to
authorize an administrative subpoena?
Ms. Caproni. I think that under the current circumstances,
where this would be a new power in a national security
investigation, and where there is significant concern that the
power could be misused, it is not unreasonable at this time to
have the delegation go to the special agent in charge of the
office.
Senator Levin. And nobody below?
Ms. Caproni. That's correct.
Senator Levin. Thank you.
Under FISA, is there the ability to challenge in court an
order for access to records?
Ms. Caproni. Under Section 215 of the PATRIOT Act? It
doesn't clearly state that. I think the AG has made it clear
that he would support an amendment that clearly provides that a
recipient of a 215 order could move to set aside or to modify
the order.
Senator Levin. And that would be under FISA or the PATRIOT
Act. You would support that?
Ms. Caproni. Correct.
Senator Levin. There's a provision--if I can find it--under
section 214 of the Act--and this is the application for a trap
and trace or pen register under FISA--it says there that the
reason for requesting that authority cannot be solely based on
First Amendment protected activity. Are we together so far,
under section 214?
Ms. Caproni. Is it 214 of the PATRIOT Act? Yes.
Senator Levin. OK. Let's assume that one of the purposes
violates the First Amendment rights of somebody. Would that be
allowed? You've got two purposes. One is legitimate and one
would violate the First Amendment rights of a citizen. Do you
think we ought to tolerate that, if one of the purposes of
seeking an order is to trap and trace phone calls?
Ms. Caproni. No agent should have, as a purpose, to violate
someone's First Amendment rights. I don't think that's what
that provision is driving at. The provision provides that we
can't investigate a U.S. person--we can't investigate them--
based solely on their First Amendment activities.
On the other hand----
Senator Levin. The word ``solely'' is what troubles me,
because, given your answer of 10 seconds ago, even partly, if
that's the partial motive, it would be deeply troubling.
Ms. Caproni. What I'm concerned about is the suggestion
that the agent would be, part of his goal would be to violate
the First Amendment rights of a person. That's not what this is
getting at. I think what this is getting at is, if all you know
about the person is First Amendment protected activity, you
cannot investigate them for those reasons. You have to have
something else. You have to have some other reason to believe
they are engaged in this conduct.
Senator Levin. But if one of the reasons for investigating
that person is to violate his First Amendment rights or would
impinge on his First Amendment rights illegally, under the
wording ``solely'' that would seem to be permitted. I don't
think it should be, and I don't think you think it should be.
And you don't think that's the purpose of the language.
Ms. Caproni. That's correct. I think the notion is you
could have someone who is engaging in oral conduct, who,
sitting by itself--if that's all you know about the person--
everyone would say that's First Amendment conduct.
But if you put in other stuff that you know, then it ceases
to be protected First Amendment conduct but is part of criminal
conduct. Just because you are speaking doesn't mean that it's
not criminal. If that's all you know, it could be First
Amendment conduct that we would not use solely to conduct an
investigation.
But if we know other things about them, that may color what
their oral conduct is, which might otherwise be viewed as First
Amendment activity. I think that's the reason that the statute
is written that way--that if all you know about the person is
their protected activity, you can't open an investigation on
them.
Senator Levin. Thank you.
Chairman Roberts. The Senator's time has expired.
Chairman Roberts. Senator Bayh.
Senator Bayh. Ms. Caproni, thank you for your time and for
your service to our country.
Several of my colleagues have asked questions along the
lines that I'd like to pursue, so if some of this is redundant,
I apologize in advance. I think we're all trying to get our
hands around just how significant an impediment this has been
to your ability to conduct national security investigations.
So my first question is, how many investigations have been
adversely impacted by not having the advisory subpoena
authority?
Ms. Caproni. Senator, I can't give you those numbers. It's
not a number that we would collect.
Senator Bayh. How are we supposed to decide this issue if
we don't have any idea whether this has been material to your
ability to carry out your responsibilities? Is this all
hypothetical or are there actual cases? I understand we can't
discuss the specific cases, but has this hampered you 1 percent
of the time, 50 percent of the time, or has it never hampered
you?
Ms. Caproni. It definitely does hamper us. The inability to
promptly get information that we need. As I think I indicated
in response to Senator Roberts, I'm not sure that we can show--
and I know we can't--that because our investigation was delayed
for a day or 2 days or a month or 2 months----
Senator Bayh. Well, then I guess the nature of my question
would be what percentage of the investigations that you've
conducted have been delayed because you don't have this
authority?
Ms. Caproni. I can't give you percentage. I can tell you
there are circumstances where, because we don't have
administrative subpoena authorities and have to resort to other
methods to get materials, that those investigations have been
delayed.
Senator Bayh. So we have no way of knowing whether these
delays are extraordinarily unlikely or whether they happen all
the time. I'm just trying to get my hands around how material
this is. Is this something that has just occurred once where
it's been an inconvenience or a delay, or is this something
that repeatedly comes up that is really hampering you in your
ability to conduct these investigations frequently.
Ms. Caproni. The think about national security
investigations and terrorism investigations is that even if it
only happens once, if that once is in the wrong case, then it
would have a catastrophic effect.
Senator Bayh. Well, then that's something I'd like to
pursue in closed session, if in fact that's happened.
Ms. Caproni. Again, I'm not saying it has happened, but I'm
saying that these tools are available in other circumstances
where the possibility of the detrimental effect of delay are
less than in a terrorism case. Again, can we show you a precise
example of where, because of delay, a bomb went off? We cannot.
But could it happen tomorrow? It could.
This is a tool that is readily available in other contexts.
It again is an anomaly that it's not available in a national
security investigation, where I think the American public would
like the FBI to have the broadest range of tools available,
recognizing that they need to use them responsibly.
Senator Bayh. The best I can tell here today, this is
something that you are prospectively concerned about, that
there may be cases crop up where this might materially hamper
you. You can't really say it's happened yet, but it might, and
therefore we ought to err on the side of doing more rather than
less.
Ms. Caproni. There are examples where, because we didn't
have the administrative subpoena authority, we had to go in
other ways to get the material and it took longer.
Senator Bayh. How often is the administrative subpoena
authority used in the criminal context, these 300-some areas
where you're allowed to use it now? Is this the kind of thing
that happens all the time or is it kind of a rare occurrence?
Ms. Caproni. It depends. I thought I saw the statistic last
night, like on a year-in/year-out basis maybe 3,000 are issued
a year. I'm not sure if those numbers are right, but we'll get
back to you on the numbers of administrative subpoenas that are
issued.
Senator Bayh. I'm just trying to get my hands around how
material this is, how often this crops up and therefore how big
an issue it is for you.
Ms. Caproni. Within a national security investigation,
anytime we need a record and we don't have a willing
custodian--sometimes we have willing custodians, but if we
don't have a willing custodian, we need some mechanism to get
the documents.
Senator Bayh. I've only got a few seconds left, so in rapid
fire I'd like to follow up on something my colleagues, Senator
Wyden, asked you about, where he spoke about the criminal
context and now we're getting into the security/intelligence
realm. And you pointed out that very often potential terrorism
suspects are committing criminal acts, that kind of thing.
But then there's going to be a subset where in fact they've
not committed a crime or are suspected of committing a crime.
Can you give us any idea about those percentages in terms of
how many are actually suspected of criminal activity and how
many would be investigated for intelligence reasons that are
not suspected of criminal activity?
Ms. Caproni. I think we may be able to get you some at
least approximate numbers on that, but it would be classified.
Senator Bayh. Well, let me ask you about the mail covers.
As I understand it, this is currently in the hands of the
Postal Service; is that correct?
Ms. Caproni. That's correct.
Senator Bayh. And there's a somewhat different threshold
for approving this than would be embodied in the legislation
we're considering here; is that correct?
Ms. Caproni. I think that's right, and I think this
legislation would make it mandatory, if we request it, as
opposed to the current regulatory scheme, which puts it in the
discretion of the Postal Inspector.
Senator Bayh. And do you have any sense about the checks
that the Postal Inspector has in place to ensure that the use
of this kind of authority is not misused versus the kind of
checks that you would have in place to make sure that it's not
misused?
Ms. Caproni. Well, the checks that are in place by the
Postal Inspector is that they review our requests, and this to
some extent varies between postal inspector and postal
inspector.
Senator Bayh. Do they kind of grant your request routinely,
or is it the kind of thing they really scrutinize and sort of
agonize over and say, ``Gee, should we really do this or not?''
Ms. Caproni. I have to say it varies and it also depends to
some extent on postal inspector to postal inspector. They are
not a rubber stamp. They believe that they have the discretion
to decide, yes or no, whether they're going to proceed with the
mail cover.
Senator Bayh. My time is up. I believe the courts have
already ruled, have they not, that you have the ability to, for
example, if someone puts their trash out on the curb, the
courts have ruled you've got no privacy expectation on that; is
that correct?
Ms. Caproni. That's correct.
Senator Bayh. Other things that you put out in the public
domain are already kind of out there for private investigators
and others to kind of access.
Ms. Caproni. You run the risk that someone's going to steal
your garbage and go through it.
Senator Bayh. And that may not be the kind of thing I think
is right, but that's the way it is.
Ms. Caproni. That's what the courts have held, that once
you abandon the property to the garbage man, you've abandoned
your expectation of privacy in it.
Senator Bayh. So one of the things here is whether mail
should be treated as other things that are put out and once it
leaves your zone of privacy.
Ms. Caproni. Again, there are court cases on this.
Senator Bayh. Whether you should have access to that kind
of information, just as anybody else can have access to it, in
some ways.
Ms. Caproni. Again, the courts have considered the
constitutionality of mail covers, and the rationale is that
mail covers are constitutional. You don't need a search warrant
for them. And it's for the same general idea, that this
information, which is only what's on the exterior of the
envelope----
Senator Bayh. You're not going inside the mail.
Ms. Caproni. We're not opening the mail, no. We would need
court approval to open the mail.
Senator Bayh. Thank you, ma'am.
Chairman Roberts. I had one other observation before we
have the next panel come up, and Senator Snowe was next but she
has indicated she will pass.
If administrative subpoenas are constitutional
investigative tools that provide timely access to crucial
information necessary to protect national security, with the
significant checks and balances of the judicial review,
minimization procedures and congressional oversight, I see no
reason why investigations of terrorists and spies should not
have the same tool provided to the investigators that they now
have in regard to health care fraud, child pornography and
narcotics trafficking.
Using the logic in regard to some of the questions that
have been raised, you could call for more hoops--well, hoops is
probably a bad word--more safeguards in those cases as well in
terms of the time involved that it takes to investigate health
care fraud, a child pornography case or narcotics trafficking
or 335 other instances where the Federal Government does use
this tool.
So, with that, we thank you for your testimony and we now
ask the second panel to please come forward.
We would like to welcome the second panel: Mr. David Kris,
Mr. Joe Onek, Mr. Daniel Collins, Mr. James Dempsey.
Mr. Kris, would you please proceed?
[The prepared statement of Mr. Kris follows:]
Prepared Statement of David S. Kris
Chairman Roberts, Vice Chairman Rockefeller, and Members of the
Committee: Thank you for the opportunity to testify about the Foreign
Intelligence Surveillance Act (FISA) and related provisions in the
Committee's draft bill. I join the Department of Justice (DOJ) in
applauding the bill for addressing several difficult and important
issues. Having first seen it less than a week ago, however, I have not
yet mastered all of its policy implications or technical aspects. This
is a very complicated area of law. Accordingly, while I pledge my
continuing availability, this morning I can offer only tentative views
based on a few days' consideration. Subject to that caveat, set forth
below are a few general comments, and several specific comments, on the
bill. In appearing before you today, I speak only for myself, and not
for any former or current employer, including DOJ and Time Warner.
In general, the Committee's draft bill authorizes and regulates
several vitally important investigative tools, and I am therefore not
surprised that DOJ has expressed its support. For example, Sections 101
and 203 will prevent any resurgence of the FISA ``wall'' separating
intelligence and law enforcement. As I testified in the House last
month,\1\ the wall is extremely dangerous; this bill will help keep it
down. Section 101 of the bill will also help ensure the government's
continuing authority to conduct ``roving'' FISA surveillance, a tool
that appears to be very valuable, and that already contains strong
protections for civil liberties. Section 102 makes permanent the lone-
wolf provision of FISA, which I understand DOJ strongly supports. Two
other provisions of the bill, Sections 201 and 216, will likely ease
administrative burdens on the FBI and DOJ by extending the duration of
FISA authorization orders involving non-U.S. persons (Sections 214 and
215 may have similarly helpful effects). In an era of increasing FISA
activity, this helps focus resources on cases involving U.S. persons,
where civil liberties concerns are preeminent.
This bill should also enjoy substantial support from civil
libertarians. For example, Section 213 would authorize administrative
subpoenas that are similar to existing national security letters, but
with an express provision for motions to quash. Another part of the
bill, Section 211, would expand the disclosure rights of persons who
receive a FISA tangible things order, and permit them to consult with
counsel. Section 211 would also require special minimization procedures
governing the retention and dissemination of information obtained from
a tangible things order. And it would expand the government's reporting
obligations.
I do have questions about certain provisions in the bill. In
Sections 202 and 212, for example, I wonder whether it offers
legislative solutions to problems that the executive branch ought to be
able to resolve internally. I believe that Congress should change FISA
only to address specific shortcomings not amenable to other remedies.
However, I also think that law and policy should reflect operational
experience. My own operational experience in this area, once extensive,
is now 2 years out of date. I may not recognize or understand all of
the problems facing government today. The Department of Justice, and
you and your staff, are the real experts in this area, and I hasten to
defer to your expertise. In any event, I do not think that Sections 202
and 212 threaten civil liberties.
Finally, in evaluating this bill, particularly Section 213, I urge
you to consider not only whether ``the government''--meaning the
executive branch as a whole--should have certain investigative power,
but also which parts of government should have power. Although I have
no doubts about the constitutionality or importance of Section 213, I
believe strongly that government is more effective, and civil liberties
are better protected, when FBI agents and DOJ lawyers work as closely
and cooperatively in national security investigations as they do in
traditional criminal investigations. Until late 2002, of course, the
FISA wall effectively prohibited this. As we emerge from the shadow of
the wall, broad structural changes, such as the creation of a DOJ
National Security Division, may be necessary to foster the cooperative
model. But substantive bills like the Committee's draft should also do
so where they can.
Thank you again for the opportunity to be here. The balance of this
submission presents a section-by-section review of the Committee's
draft bill. Again, in light of the complexity of the legal issues and
the speed with which I have prepared this testimony, I emphasize the
tentative nature of my comments.
SECTIONS 101, 102 AND 203
Sections 101 and 102 of the Committee's draft bill are designed to
eliminate the upcoming sunset for several provisions of the USA Patriot
Act,\2\ and for the lone-wolf provision of last year's Intelligence
Reform and Terrorism Prevention Act.\3\ You and your counterparts in
the House of Representatives have already heard from many witnesses on
both sides of the sunset debate. By and large, I support renewal of the
Patriot Act, but I would like to focus today on two important
provisions: Section 218 of the Patriot Act, the ``significant purpose''
amendment to FISA (in connection with which I also discuss Section 203
of the Committee's bill); and Section 206 of the Patriot Act, the
``roving surveillance'' amendment to FISA.
1. Patriot Act Section 218: Significant Purpose
On April 28, 2005, I testified about Section 218 before the
Subcommittee on Crime, Terrorism, and Homeland Security of the House
Judiciary Committee.\4\ My position then (as now) was that Congress
should renew Section 218. I also urged the Subcommittee explicitly to
endorse the reasoning and decision of the Foreign Intelligence
Surveillance Court of Review (FISCR or Court of Review) interpreting
Section 218 and other provisions of FISA.\5\ I testified:
Whether or not you agree with its outcome, the Court of
Review's opinion is a very sophisticated and technically sound
interpretation of a complex statute. If Congress were to adopt
its reasoning, it would provide guidance that is equally
sophisticated and sound. That, above all, is what the country
needs in this area.\6\
I maintain that view today, and I therefore renew my recommendation
that Congress adopt the Court of Review's reasoning, either through
explicit legislative history or a specific provision of public law.\7\
Repealing the sunset for Patriot Act Section 218 intersects with
another provision of the Committee's bill, Section 203. Section 203
would amend the definition of ``foreign intelligence information'' to
make explicit that information is ``foreign intelligence information''
even if it is sought for use in law enforcement efforts (such as
criminal prosecution) to protect against terrorism and other foreign
intelligence threats.\8\ As a technical matter, I believe that Section
203 will accomplish what it is evidently meant to accomplish--that is,
it will make clear Congress's intent to allow FISA searches or
surveillance for the primary purpose, or even the exclusive purpose, of
obtaining evidence for the prosecution of a foreign spy or
terrorist.\9\
As a policy matter, however, you know from my House testimony that
I do not support such an amendment for two reasons.\10\ First, Section
203 of the Committee's bill would further expand governmental power at
a time when the Department of Justice itself has not asked for broader
authority. Second, a related point, I fear that any operational benefit
from the amendment would not justify the resulting cost in uncertainty
about the state of the law. As I stated at the outset, I believe that
FISA should not be amended except where the amendment is genuinely
necessary.\11\
If you disagree, and decide to enact Section 203 of your bill, you
should consider how it will interact with Patriot Act Section 218. That
is because, when read together, the two provisions could produce
strange results. As explained above, Section 203 would allow the
government to use FISA exclusively, not just primarily, to gather
evidence for the prosecution of a foreign spy or terrorist--because
Section 203 defines ``foreign intelligence information'' to include
evidence sought for such a prosecution. Under Patriot Act Section 218,
however, acquisition of ``foreign intelligence information'' need only
be a ``significant purpose'' of a FISA search or surveillance. Thus,
with both provisions on the books, the government might have authority
to use FISA for a significant purpose of prosecuting a spy or
terrorist, but with the primary purpose of something else--ranging from
ordinary law enforcement, to civil debt collection, to (maybe) sheer
voyeurism.\12\ I myself support the status quo through renewal of
Patriot Act Section 218 and adoption of the Court of Review's decision.
A reasonable person might disagree and prefer Section 203 of your bill.
If you both renew Section 218 and enact Section 203, I recommend that
you include strong legislative history to guard against any misreading.
2. Patriot Act Section 206: Roving Surveillance
I believe the current debate over roving FISA surveillance has gone
awry. Some have claimed that under Patriot Act Section 206, ``[t]he
government can now issue `John Doe' roving wiretaps that fail to
specify a target or a telephone, and can use wiretaps without checking
that the conversations they are intercepting actually involve a target
of the investigation.'' \13\ I disagree. As I try to demonstrate below
by analyzing the two statutes, FISA's rules on roving surveillance
compare favorably with those in Title III,\14\ its counterpart in
conventional criminal law.
a. Title III
The conduct that fundamentally justifies and underlies all Title
III electronic surveillance is the commission of a specified criminal
offense.\15\ To obtain a normal (non-roving) surveillance order under
Title III, the government must identify the offense.\16\ However, it
need not identify or describe the person suspected of committing the
offense,\17\ and it need not establish a nexus between any person and
the location, telephone, or other facility to be monitored. Instead,
under Title III, the government establishes a nexus between the offense
and the location, telephone or other facility to be monitored.\18\
By contrast, when the government obtains a roving surveillance
order under Title III, these requirements are effectively reversed. For
obvious reasons, in such cases, the government must identify the person
committing the specified offense and whose communications are to be
intercepted.\19\ However, the government need not identify the
facilities from which or the place where the communications are to be
intercepted, and it need not establish a nexus between those facilities
or places and the specified offense.\20\ Unlike ordinary Title III
surveillance, roving Title III surveillance focuses on the target, not
the facility being used in connection with a crime.\21\
To use Title III's roving surveillance provisions, the government
must also make certain additional showings. To obtain a roving
surveillance order with respect to what Title III defines as ``oral
communications,'' \22\ the government must persuade the court that it
is not ``practical'' to establish a nexus between the underlying
conduct and the location to be monitored,\23\ and may not begin the
monitoring until ``the place where the communication is to be
intercepted is ascertained.'' \24\ With respect to what Title III
defines as ``wire communications'' \25\ or ``electronic
communications'' \26\ the government must establish probable cause that
the actions of the person committing the underlying conduct ``could
have the effect of thwarting interception from a specified facility,''
\27\ and the roving surveillance order must be ``limited to
interception only for such time as it is reasonable to presume that the
person * * * is or was reasonably proximate to the instrument through
which such communication will be or was transmitted.'' \28\
b. FISA
FISA establishes a different regime. In a normal (non-roving) FISA
case, the government must identify or describe the target of the
surveillance,\29\ and must also show that the target is engaged in the
underlying conduct that justifies the surveillance.\30\ Under FISA, of
course, that underlying conduct is whatever makes the target a foreign
power or an agent of a foreign power, which may (but need not always
be) criminal conduct--e.g., for a U.S. person, knowing engagement in
international terrorism, or for a non-U.S. person, serving as a foreign
country's diplomat in the United States.\31\ The government must also
establish a nexus between the target and the facility to be monitored,
by showing that the target is using, or about to use, the facility.\32\
However, the government need not establish a nexus between the target's
underlying conduct and the facility--e.g., it need not show that the
facility is being used in connection with international terrorism.\33\
All of the foregoing requirements apply equally to roving FISA
surveillance. The only difference between ordinary and roving FISA
surveillance is that in a roving case, where the FISC ``finds that the
actions of the target * * * may have the effect of thwarting the
identification of a specified person'' who can assist the government in
accomplishing the electronic surveillance, the FISC may order such
assistance from ``other persons'' as well as the specified persons
normally included in a secondary order.\34\ Thus, for example, rather
than issuing a secondary order directing assistance from a particular
telecommunications company, the FISC can issue a generic order
directing any telecommunications company to assist the government. The
government can use this order to follow the target wherever he goes.
Or can it? As discussed above, in normal surveillance cases, both
Title III and FISA require some showing of a nexus between the
telephone or other facility that will be wiretapped, and either the
target (under FISA) \35\ or the specified criminal offense (under Title
III \36\ Title III eliminates that nexus requirement in roving cases--
On the theory that in such cases the government cannot make the showing
because it ``may not know, until shortly before the communication,
which telephone line will be used by the person under surveillance.''
\37\ FISA seems to recognize this same theory, because (as amended in
2002) it requires the FISC's authorization order to specify the nature
and location of each facility to be surveilled only ``if known.'' \38\
Nonetheless, FISA does not eliminate the nexus requirement: In roving
cases as well as ordinary cases, it demands probable cause that ``each
of the facilities or places at which the electronic surveillance is
directed is being used, or is about to be used, by a foreign power or
an agent of a foreign power.'' \39\ How can the government make that
showing in a roving case, where--by definition--it cannot even identify
the facilities or places at the time the FISC enters its order?
In my view, the best answer lies in FISA's minimization provisions.
As you know, those provisions require the Attorney General to propose,
and the FISC to approve (as proposed or as modified), specific
procedures ``that are reasonably designed in light of the purpose and
technique of the particular surveillance, to minimize the acquisition *
* * of nonpublicly available information concerning unconsenting United
States persons consistent with the need of the United States to obtain
* * * foreign intelligence information.'' \40\ If the minimization
procedures require a nexus before the government commences roving
surveillance on a new facility--e.g., through observation of the target
using the facility, or some other method--they ought to satisfy the
requirement that each facility ``is'' being used or about to be used by
the target before the surveillance begins.\41\
In practical effect, instead of finding probable cause with respect
to particular facilities not yet known, the FISC finds that there
necessarily will be probable cause under the minimization procedures it
imposes as part of its authorization order. This is roughly equivalent
to Title III's provisions eschewing a formal nexus requirement to any
particular facility but requiring that roving surveillance of wire or
electronic communications be ``limited to interception only for such
time as it is reasonable to presume that the [target] * * * is or was
reasonably proximate to the instrument through which such communication
will be or was transmitted.'' \42\ It is broader than Title III in that
it could be satisfied by something other than proximity to a
communications instrument (e.g., where the target uses one facility to
communicate through another, remote facility), but it is narrower in
that mere proximity is not necessarily sufficient (e.g., where the
target walks past a pay phone but does not use it).
c. Conclusion
In light of the foregoing, if I am reading the statute correctly,
it is ironic that civil libertarians have raised concerns about ``John
Doe'' roving FISA orders. Every provision in FISA that applies to
ordinary surveillance applies to roving surveillance; there are no
exceptions. One of those FISA provisions requires probable cause that
the target is using, or is about to use, ``each'' facility subjected to
surveillance. As a question of roving surveillance compared to ordinary
surveillance, you literally could not ask for more (other than,
perhaps, what I describe in the next paragraph).\43\
There is one amendment to FISA that might address some of the
concerns raised by civil libertarians without unduly inhibiting the
government. In essence, FISA roving surveillance resembles a highly
circumscribed form of emergency surveillance. In a typical emergency
surveillance case, the government determines unilaterally whether it
can satisfy all of the provisions of FISA (subject to later
ratification by the FISC).\44\ In a roving case, the government
determines unilaterally only whether it can satisfy the nexus
requirement (the FISC determines in advance all other issues, such as
whether the target is an agent of a foreign power). As in emergency
cases, therefore, it may be worth considering whether the government
should be required to submit to the FISC, within some reasonable time
after commencing roving surveillance on a new facility, a description
of the information upon which it relied to do so. Such a provision
would read something like this:
Sec. XXX. Report in Roving Surveillance Cases
Subsection 105(c)(2) of the Foreign Intelligence Surveillance Act
(50 U.S.C. Sec. 1805(c)(2)) is amended by adding the following new
subsection (E):
that, in any case in which the Court finds that the actions of
the target of the application may have the effect of thwarting
the identification of a specified person as described in
subsection (c)(2)(B) of this section, and in which the
electronic surveillance is directed against any facility or
place the nature and location of which is not specified in the
Court's order under subsection (c)(1)(B) of this section, the
applicant or another Federal officer promptly report to the
Court the information relied upon determine that the target of
the surveillance was using, or was about to use, such facility
or place.
This amendment should assuage fears about FISA roving surveillance
by requiring judicial review, albeit shortly after the fact. Obviously,
if the FISC found the government's submission unsatisfactory, it could
terminate surveillance on the new facility (on the theory that the
government had not complied with the minimization procedures).
I do not know what the Department of Justice will say in response
to this amendment, but it seems reasonable to me in concept. If the
word ``promptly'' is unsatisfactory for any reason--I borrowed it from
50 U.S.C. Sec. 1824(c)(2)(E), the provision requiring the government to
file a return following execution of a physical search--a fixed period
(3 days, 7 days, 10 days), or a ``reasonable period to be determined by
the Court,'' could be used instead.
SECTIONS 201 & 216
Section 201 of the Committee's bill would amend FISA's definition
of ``agent of a foreign power'' in 50 U.S.C. Sec. 1801(b)(1)(A). As you
know, 50 U.S.C. Sec. 1801(b)(1)(A) currently applies to any non-U.S.
person who ``acts in the United States as * * * a member of '' a group
engaged in international terrorism or activities in preparation
therefor.\45\ Another provision, 50 U.S.C. Sec. 1801(b)(2)(E),
currently applies to any person (including a U.S. person) who
``knowingly aids or abets any person in the conduct of,'' or
``knowingly conspires with any person to engage in,'' sabotage or
international terrorism, or activities that are in preparation
therefor, for or on behalf of a foreign power.\46\ Section 201 of the
bill would add to 50 U.S.C. Sec. 1801(b)(1)(A) the aiding-and-abetting
and conspiracy language from 50 U.S.C. Sec. 1801(b)(2)(E).
This proposal would not change FISA's definitions in any
substantive way. It would neither expand nor contract the reach of
FISA, because anyone who would fall under Section 201 of the bill is
already covered by 50 U.S.C. Sec. 1801(b)(2)(E). The principal effect
of Section 201 would be to extend the duration of FISA search or
surveillance orders applicable to such persons (if they are not U.S.
persons), from 90 days, to an initial order of 120 days and renewal
orders of 1 year each.\47\ A subsidiary effect would be to eliminate
FISA's civil damages remedy for such persons.\48\
As a policy matter, Section 201 seems reasonable. If longer periods
of surveillance and search authority are appropriate for non-U.S.
persons who are ``members'' of groups engaged in international
terrorism or activities in preparation therefor,\49\ then they seem
tolerable for non-U.S. persons who knowingly aid and abet or conspire
to engage in sabotage, international terrorism, or activities in
preparation therefor. In keeping with my basic view that FISA should be
amended only when necessary, however, I would defer to the Department
of Justice on whether Section 201 of the bill would in fact ease a
burden--by reducing the number of applications that must be filed--or
otherwise solve a real problem in the administration of the statute.
Section 216 is a related provision that specifically amends the
duration provisions of FISA. Under Section 216, FISA electronic
surveillance and physical searches targeting non-U.S. persons who are
agents of foreign powers could be conducted for an initial period of
120 days and for renewal periods of 1 year. This would change current
law, under which those longer authorization periods apply only to
officers or employees of foreign powers, and to members of
international terrorist groups.\50\ If Section 216 is enacted, Section
201 becomes superfluous (except for its effect on FISA's civil damages
remedy as discussed above). (Of course, there is nothing wrong with
including both provisions in the bill at this stage of the legislative
process.) Section 216 would also extend from 90 days to 1 year the
initial and renewal authorization periods for FISA pen-trap
surveillance where the applicant certifies that the ``information
likely to be obtained is foreign intelligence information not
concerning a United States person.''
SECTION 202
Section 202 of the bill would amend FISA's definition of
``contents'' \51\ essentially to conform to the definition of the same
term in Title III.\52\ I think I understand the motivation for this
amendment, but I question the need for it.
Since its enactment in 1978, FISA has allowed the government to
seek, and the FISC to issue, orders authorizing pen-trap surveillance.
For the first 20 years of the statute's existence, however, the
government could do so under FISA only by satisfying the requirements
for a full-content ``electronic surveillance'' order.\53\ In 1998,
Congress amended FISA to allow the government to obtain pen-trap orders
under a different, and less demanding, set of standards.\54\
FISA's 1998 provisions define the terms ``pen register'' and ``trap
and trace device'' by reference to the pen-trap provisions applicable
in criminal investigations.\55\ Under the criminal provisions, a pen
register is a device or process which records or decodes dialing,
routing, addressing, or signaling information transmitted by an
instrument or facility from which a wire or electronic communication is
transmitted, provided, however, that such information shall not include
the contents of any communication, but such term does not include any
device or process used by a provider or customer of a wire or
electronic communication service for billing, or recording as an
incident to billing, for communications services provided by such
provider or any device or process used by a provider or customer of a
wire communication service for cost accounting or other like purposes
in the ordinary course of its business.\56\
Reduced to its essentials, this definition means that a pen
register is supposed to detect the destination of outbound
communications from a monitored telephone or other facility, without
detecting the contents of the communication being sent.\57\ A pen
register on your telephone can identify whose number you call, but not
what you say if someone answers.
A trap and trace device is the reciprocal of a pen register: It is
supposed to detect the source of inbound communications to a monitored
facility. Thus, a trap and trace on your telephone can identify whose
telephone number called you, but not what you say. As a technical
matter, a trap and trace device defined to be a device or process which
captures the incoming electronic or other impulses which identify the
originating number or other dialing, routing, addressing, and signaling
information reasonably likely to identify the source of a wire or
electronic communication, provided, however, that such information
shall not include the contents of any communication.\58\ Since 2001, a
pen register and a trap and trace device may either be a ``device'' or
a ``process,'' which includes software as well as hardware methods of
gathering information.\59\
Typically, pen register orders are used to obtain the numbers being
dialed from a targeted telephone number, and trap and trace orders
obtain the numbers of telephones making calls to a targeted number.\60\
Under amendments enacted in the Patriot Act, however, neither FISA nor
the criminal pen-trap statute is limited to telephone numbers. Those
statutes may now be used to obtain any ``dialing, routing, addressing,
or signaling information'' that identifies the destination or source of
an electronic communication, including email and Internet
communications.\61\ But a pen-trap order may not be used to obtain the
``contents of any communication.'' \62\
Although FISA itself defines the term ``contents,'' that definition
does not govern FISA pen-trap surveillance.\63\ Indeed, if it did
apply, the statute would effectively forbid what it authorizes, because
FISA defines ``contents'' to include ``any information concerning the
identity of the parties to [a] communication or the existence * * * of
that communication'' \64\--a standard that clearly includes the routing
and addressing information acquired by a pen-trap.
This, I believe, is the concern that underlies Section 202 of the
Committee's bill: A concern that FISA's broad definition of
``contents'' somehow calls into question the validity of FISA pen-trap
surveillance.\65\ I believe the concern is misplaced for two
reasons.\66\
First, FISA's pen-trap provisions clearly take their definition of
``contents'' from Title III \67\ which (as noted above) defines the
term more narrowly than FISA to mean ``any information concerning the
substance, purport, or meaning of [a] communication,'' \68\ but does
not include information concerning the identity of the parties or the
existence of the communication. Thus, a FISA pen-trap order allows
acquisition of routing and addressing information that is not
``contents'' as defined by Title III, even if such information is
``contents'' as defined by FISA. Put another way, having narrowed Title
III's definition of ``contents'' in 1986,\69\ and cross-referenced the
narrower definition in FISA's pen-trap provisions, you need not amend
FISA's definition of ``contents'' today.
Second, FISA's pen-trap provisions, and their incorporation of
Title III's narrow definition of ``contents,'' do not conflict with
FISA's electronic surveillance provisions and their broad definition of
``contents.'' On the contrary, FISA authorizes pen-trap surveillance
``[n]otwithstanding any other provision of law'' and ``in addition to
the authority'' granted to conduct electronic surveillance.\70\ Thus,
FISA pen-trap surveillance remains lawful, and there is no need for any
change to FISA's definition of ``contents.''
In sum, FISA seems clearly to authorize pen-trap surveillance
without a full-blown ``electronic surveillance'' order issued under 50
U.S.C. Sec. 1805. The government has in fact been conducting FISA pen-
trap surveillance for many years. If agents or others in the executive
branch remain concerned, perhaps it highlights the need for more
training and outreach efforts. But I am not aware of any statutory
problem in need of repair.
SECTION 211
Section 211 amends FISA's ``tangible things'' provisions in four
ways. First, it makes two changes to the language of 50 U.S.C.
Sec. 1861(a)(1). As amended by Section 211, 50 U.S.C. Sec. 1861(a)(1)
would provide (with deleted text in strikeout and added text in
redline):
The Director of the Federal Bureau of Investigation or a
designee of the Director (whose rank shall be no lower than
Assistant Special Agent in Charge) may make an application for
an order requiring the production of any tangible things
(including books, records, papers, documents, and other items)
for relevant to an investigation to obtain foreign intelligence
information not concerning a United States person or 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.
I have no objection to the first change--replacing ``for'' with
``relevant to.'' \71\ And in view of the First Amendment provision that
remains in 50 U.S.C. Sec. 1861(2)(B),\72\ I have no objection to the
Committee's deletion of what amounts to a redundant First Amendment
provision from Section 1861(a)(1).
Second, Section 211 would change the non-disclosure provision in
the tangible things statute. Today, that provision states simply that
``[n]o person shall disclose to any other person (other than those
persons necessary to produce the tangible things under this section)
that the Federal Bureau of Investigation has sought or obtained
tangible things under this section.'' \73\ Section 211 would add
several exceptions to this general prohibition, including disclosure to
``an attorney to obtain legal advice with respect to the production of
things in response to the order,'' and ``other persons as permitted
by'' the FBI Director or his designee. Recipients of disclosure are
subject to the same general non-disclosure obligations and must be so
advised by the person making the disclosure to them.
These changes seem to be motivated by (and reasonable in light of)
Doe v. Ashcroft,\74\ which struck down on First Amendment grounds a
similar non-disclosure provision in one of the national security letter
statutes.\75\ The court in Doe recognized that ``the Government's
interest in protecting the integrity and efficacy of international
terrorism and counterintelligence investigations is a compelling one,''
and that non-disclosure rules further that interest.\76\ But the court
found that the ``categorical, perpetual, and automatic ban on
disclosure is not a narrowly tailored means to advance those legitimate
public interests.'' \77\
I don't know whether Doe was correctly decided--I believe the
government has appealed--but it seems reasonable in any event to
consider additional exceptions to the non-disclosure rules in FISA's
tangible things provisions. Of course, any exception creates some
risk--disclosure to a lawyer could be dangerous, as illustrated by the
recent prosecution of Lynne Stewart--but there is no way to keep the
orders absolutely secret. More importantly, I am very sympathetic to
persons who receive these strange-looking papers from the FISA Court by
way of the FBI. I know the FISA statute pretty well, but if I someone
handed me a tangible things order, I'd want to consult with a lawyer
before responding.\78\
An additional disclosure exception, not presently in Section 211 of
the Committee's bill, may be worth considering. One of the concerns in
Doe was the unlimited duration of the ban on disclosure. That may seem
a marginal concern, but under the First Amendment, concerns at the
margin of a statute's application can have far-reaching
consequences.\79\ I think the problem is solved, however, if the ban on
disclosure endures only so long as the underlying application and order
remain properly classified under the ordinary rules governing
classification.\80\ There should be no First Amendment problem with
requiring recipients of properly classified information generally to
keep it secret.\81\
Third, Section 211 would direct the Attorney General to adopt
``minimization procedures governing the [FBI's] retention and
dissemination'' of tangible things. As a policy matter, this
requirement is unobjectionable--indeed, I support the use of
minimization procedures as important safeguards for civil liberties. I
do, however, have a few, minor technical concerns. First of all, as far
as I can tell, the ``minimization procedures'' mentioned here would not
be reviewed and approved by the FISC. Thus, they are not ``minimization
procedures'' as that term is used elsewhere in FISA.\82\ If that is
correct, the provision may not be necessary, at least as far as U.S.
persons are concerned. Under Executive Order 12333, ``[a]gencies within
the Intelligence Community are authorized to collect, retain or
disseminate information concerning United States persons only in
accordance with procedures established by the head of the agency
involved and approved by the Attorney General.'' \83\ If the provision
is to remain in the statute, and these ``minimization procedures'' are
not meant to be reviewed by the FISC, a different term should be used
to avoid confusion.
Fourth and finally, Section 211 would expand the government's
reporting obligations to include the total number of tangible things
orders granted, and the total number of them directed at libraries and
certain other specified establishments. This seems reasonable enough,
and I defer to the Department of Justice, which has recently revealed
similar statistics in public testimony.\84\
SECTION 212
Section 212 amends FISA to direct the United States Postal Service
to comply with a request for a mail cover from a designated official of
the FBI. As far as I can tell, Section 212 codifies many of the
provisions now set out at 39 CFR Sec. 233.3, and changes certain of
them.\85\ Normally, I would say that Section 212 presents a legislative
solution to a sub-legislative problem, and that concerns about the mail
cover regulations should be taken up by the FBI with the Postal
Service. However, if--as I understand may be the case--sub-legislative
remedies have been exhausted,\86\ a statutory fix becomes more
plausible. From a civil liberties perspective, Section 212 also has the
advantage of requiring Congressional oversight of the use of national
security mail covers.
Under the current postal regulations, the FBI can get a mail cover
by asking the Postal Service. A mail cover is available to ``[p]rotect
national security,'' a term that is defined to include most of the
threats specified in the first half of FISA's definition of ``foreign
intelligence information.'' \87\ To obtain a mail cover, a ``law
enforcement agency,'' which is defined to include ``any authority of
the Federal Government * * * one of whose functions is to * * * protect
the national security,'' \88\ submits a written request (or when time
is of the essence, an oral request\89\) to the Chief Postal Inspector
or his designee with ``reasonable grounds to demonstrate the mail cover
is necessary to * * * Protect the national security.'' \90\ In national
security cases, a mail cover can remain in effect for 120 days, and
longer with the approval of certain Postal Service officials.\91\ A
national security mail cover must be approved personally by the head of
the agency requesting it, or by a single designee at the requesting
agency's headquarters.\92\
I can understand why the FBI might chafe at certain of these
requirements--particularly the one concerning high-level approval of
any national security request, and the fact that compliance with a
request is not mandatory. In my view, this sort of inter-agency dispute
is usually best resolved within the Executive Branch.\93\ Were it not
for the fact that the Attorney General had personally raised this issue
with the Postmaster General more than 6 months ago, I would be very
skeptical of Section 212. As it is, I can understand DOJ's desire to
seek the Committee's aid. I note with interest the Department's views
letter of May 18, 2005, in which it expresses support for Section 212,
and I assume (in accord with OMB Circular A-19) that the Administration
does not object to that expression of support. Perhaps the possibility
of a legislative amendment will concentrate the Postal Service's mind
and cause it to reconsider.
SECTION 213
Section 213 of the Committee's bill would allow certain designated
FBI officials to issue administrative subpoenas in the context of
national security investigations authorized under Executive Order 12333
\94\ and not premised solely on First Amendment activities. It allows
enforcement of such a subpoena by the Attorney General through the
FISC, and also provides for motions to quash filed in the FISC or in
the recipient's local United States District Court. Proceedings in
courts other than the FISC are to be closed and subject to
nondisclosure rules, and the government may submit materials to such
courts ex parte and in camera. The Director of the FBI is directed to
establish regulations for the implementation of the subpoena
provisions, and the Attorney General is directed to establish
minimization procedures governing retention and dissemination of
information obtained by subpoena. There is a provision for
congressional oversight through the Intelligence Committees.
The government needs the power to compel production of documents
and other materials in national security investigations, and
administrative subpoenas are one important way to grant such power.
From a civil liberties standpoint, Section 213 is, if anything, an
improvement over current law. Unlike the current version of FISA's
tangible things provisions,\95\ Section 213 provides expressly for
disclosure to an attorney. Moreover, unlike even the version of the
tangible things provisions proposed by Section 211 of the Committee's
bill, Section 213 provides for judicial review of a subpoena upon a
motion to quash filed by the recipient. It allows private litigants
access to the FISC, which may be viewed by civil libertarians as a good
thing regardless of what is litigated. There are now several
administrative subpoena provisions on the books for use in
investigations pertaining to such things as health care fraud, child
sexual abuse, and threats against protected persons,\96\ as well as
drug cases.\97\ Thousands of administrative subpoenas have been issued
in these kinds of cases.\98\ Administrative subpoenas in national
security cases, with the same or similar protections--including
authorization for motions to quash--seem unob-
jectionable by comparison.
I have two other observations about Section 213. First, I am
concerned about the invitation to private litigants to file motions in
the FISC. This is not so much a philosophical concern as a pragmatic
one. If thousands of subpoenas are issued, several motions to quash may
be filed.\99\ As far as I know, the FISC is simply not equipped to
handle that kind of litigation. Indeed, the FISC is not really equipped
to handle any litigation involving private parties--it has no publicly
accessible space, and a relatively small staff. To be sure, these
logistical obstacles could be overcome, but only by changing the FISC's
nature and focus. With the dramatic increases in FISA activity over the
past few years, I think the FISC should remain centered on its core
function of reviewing applications. If the recent statistics revealing
substantial numbers of denials and modifications of FISA applications
are any guide, the FISC has been doing a careful job. I would not
lightly open the FISC to adversary proceedings, particularly over
something like an administrative subpoena. But I have no similar
objection to motions to quash filed in ordinary district courts, as
long as the government is prepared to assume the risk of a leak. And
ultimately, I largely defer to the Department of Justice with respect
to what is workable here, at least in the first instance.
My second concern arises because Section 213 grants administrative
subpoena power to the Director of the FBI, and orders the Director to
establish regulations for the use of such subpoenas. I think the
authority should be granted to the Attorney General, who may delegate
(and in some other cases has delegated\100\) the authority to the
Director. This may seem a trivial point--and in many respects it is--
but I believe it relates to a broader and vitally important concern. I
think it may be helpful to the Committee if I lay out that broader
concern, using Section 213 as an illustration.
As the Committee is aware, the executive branch is now considering
whether and how to restructure the government to deal with domestic
counterintelligence matters. Spurred by the 9-11 Commission Report, and
the more recent WMD Commission Report, some have suggested splitting
the FBI to create an American version of MI-5--that is, a domestic
counterintelligence agency separate from Federal law enforcement. The
FBI obviously opposes that idea. I also oppose creating an American MI-
5, primarily because I think such a major change would take years to
bear fruit, and would create chaos in the interim. Unfortunately, our
adversaries will not let us call a time-out while we restructure.
In my view, the more promising approach is to mandate significantly
increased coordination between the FBI and DOJ prosecutors and other
lawyers. Such coordination should, in my view, be required in
individual cases and investigations, in national-level programs, and
also in policymaking (both intra- and inter-agency). As I explained
last month in my testimony before the House,\101\ bringing agents and
lawyers together would make the Department and the FBI more efficient
and effective, and would also enhance protection of civil liberties. It
would do this by taking advantage of the DOJ/FBI culture and training
that have been in effect for many years in all investigative areas
except national security. Agents and lawyers working together produce
better results than either group working alone.
In keeping with this view, I support legislative measures that tend
to unite agents and lawyers in national security investigations.
Section 213 will not do that because, like the current national
security letter statutes, it allows the FBI to take investigative
action unilaterally. It thus stands in contrast to grand jury
subpoenas, which cannot be issued without the involvement of
prosecutors. I believe Section 213 should encourage cooperation between
agents and lawyers by requiring lawyers' involvement, or at least by
giving the Attorney General the option to do so. The Attorney General
controls both DOJ proper and the FBI, and he may therefore decide to
delegate administrative subpoena power directly to the FBI. On the
other hand, particularly if DOJ creates a National Security Division,
he might delegate the power to the head of that division, and/or to
specially designated Assistant U.S. Attorneys in the field. I recommend
that Section 213 be changed to grant administrative subpoena authority
to the Attorney General.
SECTION 214
Section 214 would eliminate the current requirement that the
Department of Justice report to Congress on the number of cases in
which FISA information has been authorized for use in criminal
cases.\102\ The obligation to report authorizations for use of FISA
information at trial would remain.\103\ If, as I hope, this provision
reflects a vastly expanded administrative burden arising from vastly
expanded sharing of intelligence information with law enforcement
officials, then I take it as a very promising sign that dots are being
connected.
SECTION 215
Section 215 would allow the government to obtain subscriber
information, of the sort normally acquired by a FISA tangible things
order, as part of FISA pen-trap surveillance. Thus, for example,
instead of obtaining only the telephone numbers called by a monitored
telephone, the government could get the telephone numbers and the
names, addresses, length of service, and other information about the
subscribers to those telephone numbers. This appears to be patterned
after 18 U.S.C. Sec. 2703(c)(2). This seems like a reasonable effort to
spare the government the need to file two applications instead of one,
but again I would defer in the first instance to the Department of
Justice on the question whether Section 215 would in fact remove a real
burden. If Section 215 is desirable, I would also consider whether DOJ
wants similar authority for FISA ``electronic surveillance'' orders
issued under 50 U.S.C. Sec. 1805.
Endnotes
1. Written Testimony of David S. Kris before the House Committee on
the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security
(April 28, 2005) (hereinafter Kris House Testimony). I have, of course,
made that testimony available to your staff. As of this writing, it is
also available at http://judiciary.house.gov/media/pdfs/kris042805.pdf.
2. Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot
Act or Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
Section 224 of the Patriot Act provides:
(a) IN GENERAL.--Except as provided in subsection (b), this
title and the amendments made by this title (other than
sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219,
221, and 222, and the amendments made by those sections) shall
cease to have effect on December 31, 2005.
(b) EXCEPTION.--With respect to any particular foreign
intelligence investigation that began before the date on which
the provisions referred to in subsection (a) cease to have
effect, or with respect to any particular offense or potential
offense that began or occurred before the date on which such
provisions cease to have effect, such provisions shall continue
in effect.
115 Stat. 295.
3. Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA), Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). Section
6001 of the IRTPA provides:
(a) IN GENERAL.--Section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
Sec. 1801(b)(1)) is amended by adding at the end the following
new subparagraph:
``(C) engages in international terrorism or activities in
preparation therefore; or''.
(b) SUNSET.--The amendment made by subsection (a) shall be
subject to the sunset provision in section 224 of Public Law
107-56 (115 Stat. 295), including the exception provided in
subsection (b) of such section 224.
118 Stat. 3742.
4. See Kris House Testimony.
5. In re Sealed Case, 310 F.3d 717 (FISCR 2002).
6. Kris House Testimony at 13.
7. Your legislative staff and the Department of Justice's Offices
of Legislative Affairs and Legal Counsel would be better equipped than
I am to determine the best way for Congress to express its endorsement
of the Court of Review's decision. With some Justices and judges
increasingly wary of legislative history, however, an enacted provision
of public law may be more authoritative than even the clearest
committee report or floor statement. See, e.g., Shannon v. United
States, 512 U.S. 573, 583 (1994) (citing cases and noting that
``Members of this Court have expressed differing views regarding the
role that legislative history should play in statutory
interpretation'').
8. Under 50 U.S.C. Sec. 1801(e), as amended by Section 203 of the
Committee's bill, the term ``foreign intelligence information'' would
be defined as follows (with Section 203's proposed language in
redline):
(1) information that relates to, and if concerning a United
States person is necessary to, the ability of the United States
to protect (including protection by use of law enforcement
methods such, as criminal prosecution) against--
(A) actual or potential attack or other grave hostile acts
of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power
or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a
foreign power; or
(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to--
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.
9. In my House testimony last month, I stated:
If you decide that you want to expand DOD's authority along
these lines, and remove any statutory doubt, you should amend
the definition of ``foreign intelligence information'' by
adding the phrase ``including protection against the foregoing
using law enforcement methods, such as criminal prosecution,''
immediately after 50 U.S.C. Sec. 1801(e)(1)(C).
Kris House Testimony at note 91 (emphasis in original). Section 203
of the bill uses almost 18 identical language in a slightly different
place in the definition. Professor Richard Seamon, a thoughtful
academic commentator in this area, has recommended a similar approach.
See Richard Seamon and William Gardner, The Patriot Act and the Wall
Between Intelligence and Law Enforcement, 28 Harv. Journal on Law and
Pub. Policy 319, 458-459 (Spring 2005) (recommending an amendment to 50
U.S.C. Sec. 1801(e)(1) to provide that foreign intelligence information
means ``information that relates to, and if concerning a United States
person is necessary to, the ability of the United States, by law-
enforcement or other lawful means, to protect against'' specified
threats).
For a detailed explanation of why and how this sort of amendment
would function, see Kris House Testimony at 1-4, 9-12.
10. See Kris House Testimony at 12-14 & n.90.
11. I know at least one very intelligent person who disagrees. See
Letter from Professor Richard Seamon to Chairman Howard Coble, House
Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland
Security (May 4, 2005).
12. A full explanation for why this is the case appears on pages 9-
12 of my House testimony last month. Here is an abbreviated
explanation: The Court of Review interpreted Section 218 as codifying
the ``false dichotomy'' between law enforcement methods and all other
methods of protecting national security. It explained: ``The government
heroically tries to give [Section 218] a wholly benign interpretation.
It concedes that `the significant purpose amendment recognizes the
existence of the dichotomy between foreign intelligence and law
enforcement,' but it contends that `it cannot be said to recognize (or
approve) its legitimacy.' Supp. Br. of U.S. at 25 (emphasis in
original). We are not persuaded.'' In re Sealed Case, 310 F.3d at 734-
735. On that basis, the Court of Review read Section 218 to permit FISA
searches and surveillance primarily for law enforcement methods of
protecting national security (id. at 734):
as a matter of straightforward logic, if a FISA application can
be granted even if `foreign intelligence' is only a
significant--not a primary--purpose, another purpose can be
primary. One other legitimate purpose that could exist is to
prosecute a target for a foreign intelligence crime.
Section 203 of the Committee's bill would eliminate the false
dichotomy, and so also the premise of the Court of Review's
interpretation of Section 218. To paraphrase from the block quote
above, if the ``foreign intelligence'' purpose now includes the purpose
to prosecute a target for a foreign intelligence crime (because of
Section 203), then the ``other purpose'' that can be primary under
Patriot Act Section 218 would have to be something different than
prosecuting a target for a foreign intelligence crime--and indeed,
different than anything that protects national security. Allowing FISA
to be used primarily for something other than a ``foreign
intelligence'' purpose (once ``foreign intelligence'' has been defined
to include prosecution) seems unnecessary and unwise.
13. Testimony of Gregory T. Nojeim, Associate Director and Chief
Legislative Counsel Washington Legislative Office, American Civil
Liberties Union, before the Subcommittee on Crime, Terrorism and
Homeland Security of the House Judiciary Committee (April 28, 2005)
(available at http://judiciary.house.gov/media/pdfs/nojeim042805.pdf)
14. 18 U.S.C. Sec. Sec. 2510-2522.
15. A Title III application must contain ``details as to the
particular offense that has been, is being, or is about to be
committed.'' 18 U.S.C. Sec. 2518(1)(b)(i). To grant the application,
the court must find ``probable cause for belief that an individual is
committing, has committed, or is about to commit a particular offense
enumerated in section 2516 of this chapter.'' 18 U.S.C.
Sec. 2518(3)(a). These provisions apply to all Title III cases, roving
and non-roving.
16. See note 15, supra.
17. A Title III application must include ``the identity of the
person, if known, committing the [specified] offense and whose
communications are to be intercepted.'' 18 U.S.C. Sec. 2518(1)(b)(iv)
(emphasis added). To grant the application, the court must find
probable cause that ``an individual is committing, has committed, or is
about to commit a particular [specified] offense.'' 18 U.S.C.
Sec. 2518(3)(a) (emphasis added). In keeping with these provisions, the
Supreme Court has held that ``when there is probable cause to believe
that a particular telephone is being used to commit an offense but no
particular person is identifiable, a [non-roving] wire interception
order may, nevertheless, properly issue under the statute.'' United
States v. Kahn, 415 U.S. 143, 157 (1974).
18. A Title III application in a non-roving case must include ``a
particular description of the nature and location of the facilities
from which or the place where the communication is to be intercepted.''
18 U.S.C. Sec. 2518(1)(b)(ii). To grant the application, the court must
find probable cause either (1) that ``the facilities from which, or the
place where, the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in connection with
the commission of [the specified] offense,'' or (2) that those
facilities or places are ``leased to, listed in the name of, or
commonly used by [the] person'' committing the specified offense. 18
U.S.C. Sec. 2518(3)(d). However, the Department of Justice has publicly
revealed that ``[for prudential reasons,'' it is ``often cautious about
using the 'listed, leased, or commonly used' provision of Title III
absent evidence that the facility is in fact being used in connection
with the predicate offense.'' Supplemental Brief for the United States
in In re Sealed Case, 310 F.3d 717 (FISCR 2002), at 18 n.6.
19. To obtain Title III roving surveillance authority for oral
communications, the government must ``identif[y] the person committing
the offense and whose communications are to be intercepted.'' 18 U.S.C.
Sec. 2518(11)(a)(ii). To obtain Title III roving surveillance authority
for wire and electronic communications, the government must
``identif[y] the person believed to be committing the offense and whose
communications are to be intercepted.'' 18 U.S.C. Sec. 2518(11)(b)(ii).
20. Under 18 U.S.C. Sec. 2518(11), the requirements of 18 U.S.C.
Sec. Sec. 2518(1)(b)(ii) and (3)(d), discussed in note 18, supra, ``do
not apply'' if the government meets the other requirements for Title
III roving surveillance of oral, wire, or electronic communications.
21. Here is the description of roving Title III surveillance
authority from the United States Attorneys' Manual (Sec. 9-7.111):
Pursuant to 18 U.S.C. Sec. 2518(11)(a) and (b), the
government may obtain authorization to intercept wire, oral,
and electronic communications of specifically named subjects
without specifying with particularity the premises within, or
the facilities over which, the communications will be
intercepted. (Such authorization is commonly referred to as
``roving'' authorization.) As to the interception of oral
communications, the government may seek authorization without
specifying the location(s) of the interception when it can be
shown that it is not practical to do so. See United States v.
Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct.
1644 (1994); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y.
1995). An application for the interception of wire and
electronic communications of specifically named subjects may be
made without specifying the facility or facilities over which
the communications will be intercepted when it can be shown
that the subject or subjects of the interception have
demonstrated a purpose to thwart interception by changing
facilities. See United States v. Gaytan, 74 F.3d 545 (5th Cir.
1996); United States v. Petti, 973 F.2d 1441 (9th Cir. 1992),
cert. denied, 113 S. Ct. 1859 (1993); United States v.
Villegas, 1993 WL 535013 (S.D.N.Y. December 22, 1993).
22. Under Title III, the term ``oral communication'' means ``any
oral communication uttered by a person exhibiting an expectation that
such communication is not subject to interception under circumstances
justifying such expectation, but such term does not include any
electronic communication.'' 18 U.S.C. Sec. 2510(4). Oral communications
would be intercepted by, e. g. , a concealed microphone.
23. 18 U.S.C. Sec. 2518(11)(a). Section 2518(11)(a) provides:
The requirements of subsections (1)(b)(ii) and (3)(d) of this
section relating to the specification of the facilities from which, or
the place where, the communication is to be intercepted do not apply
if--
(a) in the case of an application with respect to the interception
of an oral communication--
(i) the application is by a Federal investigative or law
enforcement officer and is approved by the Attorney General, the Deputy
Attorney General, the Associate Attorney General, an Assistant Attorney
General, or an acting Assistant Attorney General;
(ii) the application contains a full and complete statement as to
why such specification is not practical and identifies the person
committing the offense and whose communications are to be intercepted;
and
(iii) the judge finds that such specification is not practical.
24. 18 U.S.C. Sec. 2518(12). The legislative history of this
provision explains with respect to this ``ascertainment'' language:
Proposed subsection 2518(12) of title 18 provides * * * that
where the Federal Government has been successful in obtaining a
relaxed specificity order, it cannot begin the interception
until the facilities or place from which the communication is
to be intercepted is ascertained by the person implementing the
interception order. In other words, the actual interception
could not begin until the suspect begins or evidences an
intention to begin a conversation. * * * This provision puts
the burden on the investigation agency to ascertain when the
interception is to take place.
S. Rep. No. 99-541, 99th Cong., 2d Sess. 32 (Oct. 17, 1986)
(hereinafter ECPA Senate Report).
25. Under Title III, the term ``wire communication'' means ``any
aural transfer made in whole or in part through the use of facilities
for the transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the point of
reception (including the use of such connection in a switching station)
furnished or operated by any person engaged in providing or operating
such facilities for the transmission of interstate or foreign
communications or communications affecting interstate or foreign
commerce.'' 18 U.S.C. Sec. 2510(1). Under Title III, a telephone call
is a wire communication.
26. Under Title III, the term ``electronic communication'' means
``any transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by a wire,
radio, electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include--(A) any
wire or oral communication; (B) any communication made through a tone-
only paging device; (C) any communication from a tracking device (as
defined in section 3117 of this title); or (D) electronic funds
transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of
funds.'' 18 U.S.C. Sec. 2510(12). Under Title III, an electronic mail
message is an electronic communication.
22 27. 18 U.S.C. Sec. 2518(11)(b)(ii)-(iii). Section 2518(11)
provides:
The requirements of subsections (1)(b)(ii) and (3)(d) of this
section relating to the specification of the facilities from which, or
the place where, the communication is to be intercepted do not apply
if--
* * * *
(b) in the case of an application with respect to a wire or
electronic communication--
(i) the application is by a Federal investigative or law
enforcement officer and is approved by the Attorney General; the Deputy
Attorney General, the Associate Attorney General, an Assistant Attorney
General, or an acting Assistant Attorney General;
(ii) the application identifies the person believed to be
committing the offense and whose communications are to be intercepted
and the applicant makes a showing that there is probable cause to
believe that the person's actions could have the effect of thwarting
interception from a specified facility;
(iii) the judge finds that such showing has been adequately made;
and
(iv) the order authorizing or approving the interception is limited
to interception only for such time as it is reasonable to presume that
the person identified in the application is or was reasonably proximate
to the instrument through which such communication will be or was
transmitted.
28. 18 U.S.C. Sec. 2518(11)(b)(iv). Under 18 U.S.C. Sec. 2518(12),
``[a] provider of wire or electronic communications service that has
received [a roving surveillance order] may move the court to modify or
quash the order on the ground that its assistance with respect to the
interception cannot be performed in a timely or reasonable fashion.''
29. A FISA application for electronic surveillance must include
``the identity, if known, or a description of the target of the
electronic surveillance.'' 50 U.S.C. Sec. 1804(a)(3).
30. A FISA application for electronic surveillance must include ``a
statement of the facts and circumstances relied upon by the applicant
to justify his belief that--(A) the target of the electronic
surveillance is a foreign power or an agent of a foreign power.'' 50
U.S.C. Sec. 1804(a)(4)(A). To grant the FISA application, the Foreign
Intelligence Surveillance Court (FISC) must find, ``on the basis of the
facts submitted by the applicant,'' that ``there is probable cause to
believe that--(A) the target of the surveillance is a foreign power or
an agent of a foreign power.'' 50 U.S.C. Sec. 1804(a)(4)(A).
31. See 50 U.S.C. Sec. 1801(a)-(b) (defining ``foreign power'' and
``agent of a foreign power'').
32. A FISA application for electronic surveillance must include ``a
statement of the facts and circumstances relied upon by the applicant
to justify his belief that * * * (B) each of the facilities or places
at which the electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a foreign power.''
50 U.S.C. Sec. 1804(a)(4)(B). To grant the FISA application, the FISC
must find, ``on the basis of the facts submitted by the applicant,''
that ``there is probable cause to believe that * * * (B) each of the
facilities or places at which the electronic surveillance is directed
is being used, or is about to be used, by a foreign power or an agent
of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). See note 32, supra.
33. The certification that is part of every FISA application must
designate the type of foreign intelligence information being sought by
the electronic surveillance, and explain the basis for the designation.
50 U.S.C. Sec. 1804(a)(7)(D) and (E)(i).
34. 50 U.S.C. Sec. 1805(c)(2)(B).
35. See note 32, supra.
36. As discussed in notes 18 and 32, supra, the government normally
satisfies Title III by establishing probable cause that ``the
facilities from which, or the place where, the wire, oral, or
electronic communications are to be intercepted are being used, or are
about to be used, in connection with the commission of [the underlying]
offense,'' 18 U.S.C. Sec. 2518(3)(d), and FISA requires probable cause
that ``each of the facilities or places at which the electronic
surveillance is directed is being used, or is about to be used, by a
foreign power or an agent of a foreign power.'' 50 U.S.C.
Sec. 1805(a)(3)(B).
37. ECPA Senate Report at 31.
38. 50 U.S.C. Sec. 1805(c)(1)(B).
39. 50 U.S.C. Sec. 1805(a)(3)(B)
40. 50 U.S.C. Sec. 1801(h)(1).
41. The nexus requirement applies only to each facility at which
surveillance ``is'' directed, but the use of the present tense plainly
would not support an argument that roving surveillance--which occurs in
the future--is exempt from the requirement. On the contrary, even in an
ordinary (non-roving) FISA case, the surveillance commences in the
future--i.e., after the FISC has issued its order.
42. 18 U.S.C. Sec. 2518(11)(b)(iv).
43. Roving FISA surveillance is in fact being done. The Department
of Justice revealed that there had been 49 roving FISA surveillance
orders issued as of March 30, 2005. Testimony of James A. Baker,
Counsel for Intelligence Policy, before the Subcommittee on Crime,
Terrorism, and Homeland Security, Committee on the Judiciary, U.S.
House of Representatives, April 28, 2005 (available at http://
judiciary.house.gov/media/pdfs/baker042805.pdf) (hereinafter Baker
House Testimony).
The Department supports roving FISA surveillance with arguments
similar to, but not identical to, the ones I advance here. As James
Baker, the Counsel for Intelligence Policy, testified on April 28,
2005:
Let me respond to this criticism [concerning ``John Doe''
warrants] in the following way. First, even when the government
is unsure of the name of a target of such a wiretap, FISA
requires the government to provide ``the identity, if known, or
a description of the target of the electronic surveillance'' to
the FISA Court prior to obtaining the surveillance order. 50
U.S.C. Sec. Sec. 1804(a)(3) and 1805(c)(1)(A). As a result,
each roving wiretap order is tied to a particular target whom
the FISA Court must find probable cause to believe is a foreign
power or an agent of a foreign power. In addition, the FISA
Court must find ``that the actions of the target of the
application may have the effect of thwarting'' the
surveillance, thereby requiring an analysis of the activities
of a foreign power or an agent of a foreign power that can be
identified or described. 50 U.S.C. Sec. 1805(c)(2)(B). Finally,
it is important to remember that FISA has always required that
the government conduct every surveillance pursuant to
appropriate minimization procedures that limit the government's
acquisition, retention, and dissemination of irrelevant
communications of innocent Americans. Both the Attorney General
and the FISA Court must approve those minimization procedures.
Taken together, we believe that these provisions adequately
protect against unwarranted governmental intrusions into the
privacy of Americans.
Baker House Testimony at 2 (emphasis in original).
44. See 50 U.S.C. Sec. 1805(f).
45. Under 50 U.S.C. Sec. 1801(b)(1)(A), an ``agent of a foreign
power'' is defined to include:
(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) of this section.
Under 50 U.S.C. Sec. 1801(a)(4), a ``foreign power'' is defined to
include ``a group engaged in international terrorism or activities in
preparation therefor.''
Under 50 U.S.C. Sec. 1801(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.
46. Under 50 U.S.C. Sec. 1801(b)(2), an ``agent of a foreign
power'' is defined to include: any person who--
(A) knowingly engages in clandestine intelligence gathering
activities for or on behalf of a foreign power, which activities
involve or may involve a violation of the criminal statutes of the
United States;
(B) pursuant to the direction of an intelligence service or network
of a foreign power, knowingly engages in any other clandestine
intelligence activities for or on behalf of such foreign power, which
activities involve or are about to involve a violation of the criminal
statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a
foreign power;
(D) knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power or, while in the United
States, knowingly assumes a false or fraudulent identity for or on
behalf of a foreign power; or
(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).
47. See 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (e)(2)(B) (electronic
surveillance), 1824(d)(1)(B), (d)(2)(B) (physical searches).
48. See 50 U.S.C. Sec. Sec. 1810 (``An aggrieved person, other than
a foreign power or an agent of a foreign power, as defined in section
1801(a) or (b)(1)(A) of this title, respectively, who has been
subjected to an electronic surveillance or about whom information
obtained by electronic surveillance of such person has been disclosed
or used in violation of section 1809 of this title shall have a cause
of action against any person who committed such violation and shall be
entitled to recover'' money damages); 1828 (``An aggrieved person,
other than a foreign power or an agent of a foreign power, as defined
in section 1801(a) or (b)(1)(A), respectively, of this title, whose
premises, property, information, or material has been subjected to a
physical search within the United States or about whom information
obtained by such a physical search has been disclosed or used in
violation of section 1827 of this title shall have a cause of action
against any person who committed such violation and shall be entitled
to recover'' money damages).
49. See 50 U.S.C. Sec. Sec. 1801(b)(1)(A), 1805(e)(1)(B). FISA's
legislative history explains that the ``term `member' means an active,
knowing member of the group or organization which is a foreign power.
It does not include mere sympathizers, fellow-travelers, or persons who
may have merely attended meetings of the group or organization.'' H.R.
Rep. No. 1283, Part I, 95th Cong., 2d Sess. 34 (1978) (hereinafter
House Report) This is, of course, a fact-intensive inquiry.
50. 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (2)(B), 1824(d)(1)(B),
(d)(2)(B); see 50 U.S.C. Sec. Sec. 1801(b)(1)(A).
51. 50 U.S.C. Sec. Sec. 1801(n) (``Contents', when used with
respect to a communication, includes any information concerning the
identity of the parties to such communication or the existence,
substance, purport, or meaning of that communication'').
52. 18 U.S.C. Sec. 2510(8) (``contents', when used with respect to
any wire, oral, or electronic communication, includes any information
concerning the substance, purport, or meaning of that communication'').
53. See House Report at 51 (stating that pen registers were
intended to be included in the definition of ``electronic
surveillance'' in 50 U.S.C. Sec. 1801(f)(2)), 67 (``devices such as pen
registers are included''); see also S. Rep. No. 185, 105th Cong., 2d
Sess. 27 (1998) (noting that pen registers were considered electronic
surveillance under the original version of FISA) (hereinafter Senate
Intelligence Pen-Trap Report).
54. Pub. L. No. 105-272, Sec. 601, 112 Stat. 2396 (Oct. 20, 1998),
codified at 50 U.S.C. Sec. Sec. 1841-1846. Pen-trap orders may be
obtained on a lesser showing than would be necessary for electronic
surveillance or a physical search because the Supreme Court has held
that limited information concerning the source or destination of a
communication is not protected by the Fourth Amendment. See Smith v.
Maryland, 442 U.S. 735 (1979). The Court in Smith reasoned that a
person does not have a reasonable expectation of privacy in the numbers
dialed from a telephone and therefore that a pen register does not
constitute a ``search'' within the meaning of the Fourth Amendment. Id.
at 742-46. Absent the statutory requirements to obtain a court order,
therefore, the government could employ pen-trap devices without any
judicial authorization.
55. See 50 U.S.C. Sec. 1841(2) (defining pen register and trap and
trace by reference to 18 U.S.C. Sec. 3127).
56. 18 U.S.C. Sec. 3127(3).
57. See note 62, infra.
58. 18 U.S.C. Sec. 3127(4).
59. See www.usdoj.gov/criminal/cybercrime/PatriotAct.htm. A trap
and trace device is still defined in the statute as a trap and trace
``device'' even if it is in fact a process, rather than a device.
60. See United States v. New York Tel. Co., 434 U.S. 159, 161 n.1
(1977) (``A pen register is a mechanical device that records the
numbers dialed on a telephone by monitoring the electronic impulses
caused when the dial on the phone is released. It does not overhear
oral communications and does not indicate whether calls are actually
completed.'').
61. See U.S. Internet Service Provider Association, Electronic
Evidence Compliance--A Guide for Internet Service Providers, 18
Berkeley Tech. L. J. 945, 956 (2003) (``Law enforcement may also use
pen register and trap and trace orders to trace communications on the
Internet and other computer networks.''). Prior to the Patriot Act, pen
registers had been used to obtain computer routing and addressing
information, but it was not well settled that this was the correct
interpretation of the statute. See www.usdoj.gov/criminal/cybercrime/
PatriotAct.htm.
62. 18 U.S.C. Sec. 3127(3) & (4). FISA does not incorporate a
provision of the criminal code that requires the government to use
``technology reasonably available to it that restricts'' pen-trap
interceptions ``so as not to include the contents of any wire or
electronic communications.'' 18 U.S.C. Sec. 3121(c). However, Section
2.4 of Executive Order 12333 imposes similar restrictions, requiring
Intelligence Community agencies, which include the intelligence
elements of the FBI, to ``use the least intrusive collection techniques
feasible within the United States or directed against United States
persons abroad.''
63. It applies only to the subchapter of FISA regulating electronic
surveillance. Under the first sentence of 50 U.S.C. Sec. 1801, the
definitions in that section apply only to ``this title,'' or Title I of
FISA. The pen-trap provisions are in Title IV of FISA. Although
Congress chose to incorporate by reference into the FISA pen-trap
provisions many of the definitions applicable to electronic
surveillance, it did not incorporate FISA's definition of ``contents.''
See 50 U.S.C. Sec. 1841.
64. 50 U.S.C. Sec. 1801(n).
65. There may, of course, be another reason for Section 202, but if
so I am unaware of it.
66. One other concern might arise from 18 U.S.C. Sec. 2511(2)(f),
which provides in relevant part that ``procedures in [Title III] or
[the Stored Communications Act, 18 U.S.C. Sec. Sec. 2701-2712] and the
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as described in [50 U.S.C.
Sec. 1801], and the interception of domestic wire, oral, and electronic
communications may be conducted.'' FISA's broad definition of
``contents'' means that its definition of ``electronic surveillance''
is correspondingly broad, see 50 U.S.C. Sec. 1801(f)(1)-(3), and
includes pen-trap surveillance. This might give rise to the concern
that Section 2511(2)(f) forbids criminal pen-trap surveillance because
it provides that FISA and Title III are the ``exclusive means'' for
conducting such surveillance. In other contexts, however, the courts of
appeals have rejected arguments that Section 2511(2)(f) forbids
domestic law enforcement investigative conduct that is ``electronic
surveillance'' under FISA but not under Title III. See, e.g., United
States v. Koyomejian, 970 F.2d 536. 540-541 (9th Cir. 1992) (en banc)
(silent video surveillance, which is ``electronic surveillance'' as
defined by FISA but is not regulated by Title III, may be conducted
against domestic, criminal targets without following either FISA or
Title III). This is a very complex area, in which I may not know all
the relevant facts, but in any event, my sense is that if an amendment
is needed, the provision to be amended should be 18 U.S.C.
Sec. 2511(2)(f), not FISA.
67. See 50 U.S.C. Sec. 1841(2) (FISA pen-trap devices defined by
cross-reference to criminal pen-trap statute), 18 U.S.C. Sec. 3127(3)-
(4) (criminal pen-trap surveillance may not intercept ``contents''), 18
U.S.C. Sec. 3127(1) (defining ``contents'' for criminal pen-trap
statute by cross-reference to Title III), 18 U.S.C. Sec. 2510(8)
(defining ``contents'' in Title III as ``any information concerning the
substance, purport, or meaning of [a] communication'').
68. 18 U.S.C. Sec. 2510(8).
69. See Electronic Communications Privacy Act (ECPA), Pub. L. 99-
508, Sec. 101(a)(5), 100 Stat. 1848, amending 18 U.S.C. Sec. 2510(8);
see also ECPA Senate Report at 13-14.
70. 50 U.S.C. Sec. Sec. 1842(a)(1), (a)(2).
71. As a technical drafting matter, the bill should specify that
the change pertains to the second use of the word ``for'' in the
provision.
72. There are similar First Amendment provisions in other parts of
FISA. See 50 U.S.C. Sec. Sec. 1805(a)(3)(A), 1824(a)(3)(A) (``no United
States person may be considered * * * an agent of a foreign power
solely upon the basis of activities protected by the first amendment to
the Constitution of the United States''). (The electronic surveillance
version of this standard applies to foreign powers and agents of
foreign powers; the physical search version applies only to agents of
foreign powers. I doubt the omission was intentional.) See also 50
U.S.C. Sec. 1842(a)(1), (c)(2), 1843(a), (b)(1) (similar provisions for
pen-trap surveillance).
73. 50 U.S.C. Sec. 1861(d).
74. 334 F. Supp.2d 471 (S.D.N.Y. 2004).
75. 18 U.S.C. Sec. 2709. Section 2709 provides that ``[a] wire or
electronic communication service provider shall comply with a request
for subscriber information and toll billing records information, or
electronic communication transactional records in its custody or
possession made by the Director of the Federal Bureau of
Investigation.'' 18 U.S.C. Sec. 2709(a). It also provides that ``[n]o
wire or electronic communication service provider, or officer,
employee, or agent thereof, shall disclose to any person that the
Federal Bureau of Investigation has sought or obtained access to
information or records under this section.'' 18 U.S.C. Sec. 2709(c).
76. 334 F. Supp.2d at 514.
77. Id.
78. The Department of Justice is apparently of the same view. See
Baker House Testimony at 3-4 (``some criticisms of section 215 have
apparently been based on possible ambiguity in the law. The Department
has already stated in litigation that the recipient of a section 215
order may consult with his attorney and may challenge that order in
court. The Department has also stated that the government may seek, and
a court may require, only the production of records that are relevant
to a national security investigation, a standard similar to the
relevance standard that applies to grand jury subpoenas in criminal
cases. The text of section 215, however, is not as clear as it could be
in these respects. The Department, therefore, is willing to support
amendments to Section 215 to clarify these points.'').
79. See, e.g., Los Angeles Police Dep't v. United Reporting
Publishing Co., 528 U.S. 32, 37-39 (1999) (explaining First Amendment
overbreadth doctrine); cf. United States v. Salerno, 481 U.S. 739, 745
(1987) (``The fact that [a statute] might operate unconstitutionally
under some conceivable set of circumstances is insufficient to render
it wholly invalid, since we have not recognized an `overbreadth'
doctrine outside the limited context of the First Amendment'').
80. See, e.g., Executive Order 12958 (as amended).
81. See, e.g., Snepp v. United States, 444 U.S. 507, 510 n.3
(1980).
82. 50 U.S.C. Sec. Sec. 1801(h), 1805(a), 1805(c)(2)(A), 1821(4),
1824(a), 1824(c)(2)(A).
83. Executive Order 12333 Sec. 2.3; see also id. Sec. 1.14. The
intelligence elements of the FBI are in the intelligence community. Id.
Sec. 3.4(f)(6).
84. Baker House Testimony at 3 (``The Attorney General also
recently declassified the fact that the FISA Court has issued 35 orders
under section 215 from the effective date of the Act through March 30th
of this year. The Attorney General also declassified the types of
business records sought by these orders. They include driver's license
records, public accommodation records, apartment leasing records,
credit card records, and subscriber information, such as names and
addresses, for telephone numbers captured through court-authorized pen
register devices. None of those orders were issued to libraries and/or
booksellers, or were for medical or gun records.'').
85. I have not reviewed Section 212 word-by-word against the
current postal regulations.
86. I was recently made aware of a November 19, 2004 letter from
Attorney General Ashcroft to the Postmaster General, in which the
Attorney General asked the Postmaster General to amend the mail
regulations. The requested changes were not made.
87. Compare 39 C.F.R. Sec. 233.3(c)(1)(i) and (9)(i)-(iii), with 50
U.S.C. Sec. 1801(e)(1).
88. 39 C.F.R. Sec. 233.3(c)(3)(8).
89. 39 C.F.R. Sec. 233.3(e)(3).
90. 39 C.F.R. Sec. 233.3(e)(2)(i).
91. 39 C.F.R. Sec. 233.3(g)(5)-(6).
92. 39 C.F.R. Sec. 233.3(g)(8).
93. Under 39 U.S.C. Sec. 201, the Postal Service is ``an
independent establishment of the executive branch.'' For a discussion
of the status and corporate governance structure of the Postal Service,
see United States Postal Service v. Flamingo Industries (USA) Ltd., 540
U.S. 736, 740 (2004).
94. The current guidelines for national security investigations
issued under Executive Order 12333 are classified in part. See
www.usdoj.gov/olp/nsiguidelines.pdf and www.usdoj.gov/olp/
nsifactsheet.pdf. An earlier version of these guidelines, issued in May
1995, is also classified in part. See www.usdoj.gov/ag/readingroom/
terrorismintel2.pdf.
95. 50 U.S.C. Sec. Sec. 1861-1862.
96. 18 U.S.C. Sec. 3486.
97. 21 U.S.C. Sec. 876 (``In any investigation relating to his
functions under this subchapter with respect to controlled substances,
listed chemicals, tableting machines, or encapsulating machines, the
Attorney General may subpoena witnesses, compel the attendance and
testimony of witnesses, and require the production of any records
(including books, papers, documents, and other tangible things which
constitute or contain evidence) which the Attorney General finds
relevant or material to the investigation.''). For what appears to be a
truly comprehensive list of administrative subpoena authorities held by
Executive Branch entities, see United States Department of Justice,
Office of Legal Policy, Appendices A, B & C Accompanying Report to
Congress on the Use of Administrative Subpoena Authorities by Executive
Branch Agencies and Entities Pursuant to Public Law 106-544, available
at www.usdoj.gov/olp/appendixal.pdf, www.usdoj.gov/olp/appendixa2.pdf,
www.usdoj
.gov/olp/appendixb.pdf, and www.usdoj.gov/olp/appendixc.pdf.
98. See United States Department of Justice, Office of Legal
Policy, Report to Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities Pursuant to
Public Law 106-544, Table I at 40-41, available at http://
www.usdoj.gov/olp/intro.pdf (hereinafter DOJ Administrative Subpoena
Report).
99. Between October 26, 2001, and January 21, 2003, the FBI issued
what appears to be several hundred national security letters, although
the precise number is apparently classified. See www.aclu.org/patriot
foia/FOIA/NSLLists.pdf.
100. DOJ Administrative Subpoena Report at 41 (noting delegation
from Attorney General to FBI Director of authority to issue subpoenas
under 18 U.S.C. Sec. 3486 in investigations of child sex abuse).
101. See Kris House Testimony at 16-18.
102. See 50 U.S.C. Sec. 1808(a)(2)(A) (semi-annual report shall
describe ``each criminal case in which information acquired under this
Act has been passed for law enforcement purposes during the period
covered by such report''). See also 50 U.S.C. Sec. 1806(b) (``No
information acquired pursuant to this subchapter shall be disclosed for
law enforcement purposes unless such disclosure is accompanied by a
statement that such information, or any information derived therefrom,
may only be used in a criminal proceeding with the advance
authorization of the Attorney General.'').
103. Under 50 U.S.C. Sec. 1808(a)(2)(B), the semi-annual report
must include a description of ``each criminal case in which information
acquired under this chapter has been authorized for use at trial during
such reporting period.''
STATEMENT OF DAVID S. KRIS, FORMER ASSOCIATE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
Mr. Kris. Yes. Chairman Roberts, Vice Chairman Rockefeller,
thank you very much for the opportunity to testify about your
draft bill. I am speaking this morning as a private citizen and
for myself only. But as a former government lawyer I would like
to begin by joining the Department of Justice in applauding the
bill. I think several provisions of it will help to keep us
safe.
For example, the renewal of several provisions from the
Patriot Act is, in my view, a good idea about which I know
you've heard a lot.
My written testimony singles out two PATRIOT Act
provisions, the ones pertaining to the FISA wall, Section 218,
and the one pertaining to FISA roving surveillance, where I
think I've made some observations that may not be obvious and
may be helpful to you.
I also applaud the bill as a private citizen and one who
cares about and values privacy and civil liberties. There are a
couple of provisions in the bill worthy of mention in that
regard--section 211 which expands the disclosure rights and the
reporting obligations for FISA tangible things orders; and
section 213, which, in authorizing administrative subpoenas,
also specifically provides for motions to quash such subpoenas
filed by the recipients either in their local U.S District
Courts or even in the Foreign Intelligence Surveillance Court.
Actually, I have to say that that, in my view, is a
questionable provision although it is protective of civil
liberties, I think.
At some sort of basic level it seems to me pretty clear
that the Department and the FBI need to have the authority to
compel the production of documents and other things in national
security investigations, whether it be by National Security
Letters or tangible things orders or administrative subpoenas,
just as they have corresponding authority by administrative
subpoena or grand jury subpoena in criminal cases.
The question, it seems to me, is under what circumstances
and what conditions will that authority be exercised? And just
in sitting here listening to the dialog I sort of sketched out
what I think are five or six factors that might or might not be
applied to the exercise of administrative subpoena power.
There is first the requirement for high level executive
branch approval before such a subpoena could be issued; a
requirement for a submission or a certification by an applicant
in front of a judicial officer; advance judicial review, either
substantive--looking at the certification and questioning it or
procedural--making sure that the certification has all the
required elements. There would be consultation rights and
nondisclosure rules governing recipients. And then finally
there would be the possibility of after-the-fact judicial
review, either in a motion to quash by the recipient or maybe
in some kind of ratification by a court of the administrative
subpoena in the same way that FISA emergency orders are
ratified after the fact.
So those it seems to me are the factors. And this bill it
seems to me is aiming for a balanced approach to the question
of granting authority but also conditioning it in appropriate
ways. At a minimum, it strikes me as a good place to begin the
dialog.
One other thing that I think is worth thinking about in
considering the administrative subpoena provisions and the
other provisions in this bill: it is not just a question of
whether the government as a whole should have this power or
should not have this power under certain conditions. I think
it's also a question of which parts of the government have the
power, because in a bureaucracy as big as the executive branch,
every time you grant power to one part you change the way it
relates to the others.
And in my view, it is important to grant the authority here
to the Attorney General, for two reasons--first to reaffirm
once again that the Attorney General is, in fact, in charge
both of DOJ proper and of the FBI, and also because I think it
is important as we go forward, sort of emerging from the shadow
of the FISA wall, to encourage wherever possible the
interaction of agents and lawyers, whether they be prosecutors
or other lawyers, within the Department of Justice.
And so I think the Attorney General ought to have the
authority to delegate this power of administrative subpoenas,
if it's granted, to whomever he or she believes is the
appropriate recipient, maybe with some floor set by statute.
For example, right now there is a discussion I believe,
according to the New York Times, about whether to create a
national security division within the Department of Justice.
And if such a division were created the Attorney General might
well choose to delegate this power to the assistant attorney
general for that division rather than to the Director. So I
think the statute should give the Attorney General that
authority.
And now I would obviously be happy to answer any of your
questions.
Chairman Roberts. We thank you for your testimony, Mr.
Kris.
Mr. Onek.
[The prepared statement of Mr. Onek follows:]
Prepared Statement of Joseph Onek
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 the 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 re-examination 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.
CONCLUSION
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.
STATEMENT OF JOSEPH ONEK, SENIOR POLICY ANALYST, OPEN SOCIETY
INSTITUTE, AND SENIOR COUNSEL, CONSTITUTION PROJECT
Mr. Onek. Thank you, Chairman Roberts, Vice Chairman
Rockefeller, members of the committee.
I'd like to begin, if I may, by talking about the Lone Wolf
provision because I think it may get lost in the shuffle. This
provision was not passed 3\1/2\ years ago; it was passed just a
few months ago. Yet the draft legislation would repeal the
sunset for it. And I think this may be a good example of what
Senator Rockefeller had described earlier of a provision where
the sunset should clearly be extended.
I happen to believe that the Lone Wolf provision may be
unconstitutional and that, in light of other criminal
surveillance authorities, it's unnecessary.
But the crucial point is that this Committee has not yet
received the government's first report, because the 6-month
period isn't up yet, on this provision. The Committee can't
have an adequate record as to how often or when the provision
has been used and whether alternative surveillance authorities
are available.
So I think this is the perfect occasion, certainly, to take
up Senator Rockefeller's suggestion about these provisions. And
in this case I think it's clear the sunset provision should be
extended for 3 or 4 years. This would give the Committee and
the Congress a better opportunity to assess the need for the
Lone Wolf provision.
I'd like to turn to administrative subpoenas. There's been
a discussion of how often they've been used in other contexts.
There's also already been a discussion about the fact that here
we're dealing with a much, much broader array of records.
Indeed, because we're investigating foreign intelligence and
terrorism, there's essentially no limit on the kinds of records
that can be subpoenaed. And I think this raises all sorts of
privacy and profiling issues, which I'd be glad to discuss in
the questioning.
But there's another difference between these subpoenas and
the other uses of administrative subpoenas. These are going to
be largely secret. That means that the recipient can't complain
to the press, can't complain to the public, can't complain to
the Congress.
And this isn't insignificant. Just last year in Iowa, a
Federal prosecutor requested records from Drake University and
members of the community in connection with a peaceful antiwar
forum. The university community got up in arms and protested.
The press took up the controversy. And the subpoenas were
withdrawn 3 days later. Now, that just can't happen when the
subpoenas are secret.
So if you're going to have secret subpoenas, I think there
have to be additional safeguards. And the obvious and best
safeguard is prior judicial approval, as is provided, for
example, in Section 215. Now there can be an exception for
emergency cases, as Senator Feinstein suggested, and FISA
already has exceptions in Title I and Title III for
emergencies.
But never in our history, I don't believe, has there ever
been a situation where there's been massive use of secret
subpoenas without prior judicial approval. This is a totally
new thing. All the other subpoenas they're talking about are
not secret, and the people who get them have a chance to
complain about them.
This is a very different situation. You'd be creating, for
the first time in our history, a regime of mass secret
subpoenas, because I'm sure this is going to be used a great
deal. Most of the time they will be secret. And under those
circumstances I think prior judicial approval is required.
Post-judicial approval won't work. Ms. Caproni was very
candid with this Committee when she pointed out that very few
third-party record-holders ever move to quash a subpoena. She
was very clear on that. So I don't think that post-hoc judicial
review is going to take place. It just ain't going to happen.
And by the way, it's going to happen even less because of
the secrecy. For example, if you subpoena hospital records and
was public, maybe the patient groups and the medical staff
would pressure the hospital into challenging the subpoena. But
if it's a secret subpoena and, as in this legislation, the
hospital has immunity from giving the records over, its just
going to give them over.
So after-the-fact judicial review is not going to happen.
This is a classic case where we should have judicial approval.
If you're going to have vast numbers of secret subpoenas, the
real safeguard you must have is prior judicial approval as in
Section 215. I happen to believe that the standard in Section
215 should be tightened. We can, of course, discuss that in the
question-and-answer period.
Thank you.
Chairman Roberts. We thank you for your testimony, sir.
Mr. Collins.
[The prepared statement of Mr. Collins follows:]
Prepared Statement of Daniel P. Collins
Chairman Roberts, Vice-Chairnian Rockefeller, and Members of the
Committee, I am grateful for the opportunity to testify before you
today. Three and one-half years ago, the USA PATRIOT Act was signed
into law by President Bush with overwhelming support in both Houses of
Congress. See Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). That
strong bipartisan consensus reflected the gravity and importance of the
chief objective of that legislation, which was set forth right in the
title: ``providing appropriate tools required to intercept and obstruct
terrorism.'' As the horrific events of September 11 demonstrated, there
are few priorities more pressing than detecting and preventing
terrorist attacks. It is critical that the men and women whose job it
is to protect us have the tools they need to get that job done, and to
get it done in a manner that both enhances security and respects
liberty.
However, as the Committee is well aware, several provisions of
Title II of the PATRIOT Act are scheduled to expire on December 31,
2005, absent action by Congress. Id., Sec. 224(a), 115 Stat. at 295.
Under Section 101 of the draft legislation that is the subject of this
hearing, nine of the PATRIOT Act provisions that are currently subject
to sunset would be made peiivanent. See Section 101 (repealing the
sunset of sections 203(b), 203(d), 204, 206, 207, 214, 215, 218, and
225 of the PATRIOT Act). I agree that these nine provisions should be
made permanent. Today, as in 2001, they are ``appropriate tools'' in
the war on terror.
My perspective on these matters is informed by my service over the
years in various capacities in the Justice Department. Most recently, I
served from June 2001 until September 2003 as an Associate Deputy
Attorney General (``ADAG'') in the office of Deputy Attorney General
Larry Thompson. During the same period, I also served as the
Department's Chief Privacy Officer, and in that capacity, I had the
responsibility for coordinating the Department's policies on privacy
issues. I also served, from 1992 to 1996, as an Assistant United States
Attorney in the Criminal Division of the U.S. Attorney's Office for the
Central District of California in Los Angeles. And prior to that, I had
served from 1989 to 1991 as an Attorney-Advisor in the Office of Legal
Counsel in Washington, D.C. I am now back in private practice in Los
Angeles, and I emphasize that the views I offer today are solely my
own.
Before turning to the nine relevant PATRIOT Act provisions that are
up for ``sunset'' review by this Committee, I think it is useful to
outline some of the basic principles that should guide an analysis of
these provisions. The overarching question whether a particular
surveillance authority is an ``appropriate tool'' ultimately turns on
whether that tool assists in detecting and preventing terrorism, and
whether it does so in a manner that preserves and enhances privacy. In
making that judgment, it is important not to fall into the fallacy of
``zero-sum'' thinking, whereby every expansion of government
surveillance authority is somehow deemed inherently to represent a loss
of privacy. This sort of thinking does not make much sense either from
a national security perspective or from a civil liberties perspective.
The question instead is whether the conditions placed on the
availability and use of a particular tool are sufficient to permit it
to be deployed effectively when warranted, but only in a manner that is
respectful of privacy and basic civil liberties.
Beyond that very general statement, there is, I think, general
agreement on a number of more specific principles that help to inform
any judgment about the propriety and adequacy of the conditions place
upon the use of a particular tool:
Unwavering fidelity to the Constitution. Privacy is a
cherished American right. Among the various ways in which the
Constitution protects that right, the Fourth Amendment specifically
reaffirms the right of the people to be free from unreasonable searches
of their ``houses, papers, and effects.'' Our laws must scrupulously
respect the limits established by the Constitution. As many have said,
we have to think outside the box, but not outside the Constitution. But
while the Constitution sets the minimum, our laws have long properly
reflected the judgment that, from a policy perspective, there should be
additional statutory protections for privacy. I do not question that
judgment.
Not all privacy interests are the same. Not all privacy
interests are of the same magnitude, and it makes no policy sense to
act as if they were. For example, some categories of information are
more important and more sensitive than others. The fact that the
supermarket club could maintain a computerized stockpile of information
about my personal buying habits may raise a privacy concern, but it is
not on the same level as someone eavesdropping on my phone
conversations or reading my medical records. The nature and severity of
the privacy intrusion at issue are certainly important factors to
consider.
Privacy is not always the most important value. It is
essential to keep in mind that, while privacy is an important right, it
is by no means the only important value. Human society, by its very
nature, involves some loss of personal privacy. Competing concerns
raised by new technology may also justify particular intrusions on
privacy: no one can deny that airport inspections are essential to
public safety, regardless of the cost to privacy.
If it's good enough for fighting the mob, it's good enough
for fighting terrorism. Any tool that is already available to fight any
other type of crime--be it racketeering, drug trafficking, child
pornography, or health care fraud--should be available for fighting
terrorism, and should have an appropriate analog in the foreign
intelligence context. If the judgment has already been made that the
tool is appropriate for fighting these other crimes, and that any
privacy interests at stake must yield to that effort, then surely the
tool should also be available to fight terrorism.
The law of inertia must not be a principle of privacy
policy. It does not make much sense to perpetuate outmoded ways of
doing things simply because it has always been done that way. As times
and technologies change, the judgments that are reflected in existing
statutory rules may need to be re-evaluated.
The importance of technological neutrality. In applying
privacy principles to new and emerging technologies, an important
benchmark is the concept of ``technological neutrality.'' The idea is
that, just because a transaction is conducted using a new technology,
there should not have to be a loss of privacy when compared to similar
transactions using older technologies. To use an example, the privacy
protection for ordinary email should be roughly equivalent to that of
an ordinary postal letter. Conversely, the emergence of new
technologies should not provide foreign agents with new ways to thwart
legitimate and legally authorized foreign intelligence activities. The
notion of technological neutrality takes into account both sides of the
coin.
With these basic principles in mind, let me explain why I think
each of the nine pertinent sections of the PATRIOT Act that would be
made permanent by Section 101 of the proposed legislation are ones that
properly enhance the abilities of intelligence officials in a manner
that respects and preserves our freedoms.
(1)-(2) SECTIONS 203(B) AND 203(D)
These provisions, which authorize certain forms of information
sharing between law enforcement officers and intelligence officials,
are among the most important in the PATRIOT Act.
Specifically, section 203(b) authorizes the sharing of Title III
wiretap information with intelligence and national security officials,
subject to several conditions: (1) the information must have been
obtained ``by any means authorized by this chapter,'' i.e., in
accordance with the strict requirements of Title III; (2) the
information to be shared must ``include foreign intelligence or
counterintelligence'' or ``foreign intelligence information'' as those
terms are specifically defined by the relevant statutes; (3) the
information may only be used by such official ``as necessary in the
conduct of that person's official duties''; (4) any such official must
also comply with ``any limitations on the unauthorized disclosure of
such information''; and (5) to the extent the information ``identifies
a United States person,'' the disclosure must comply with statutorily
mandated guidelines issued by the Attorney General. See Pub. L. No.
107-56, Sec. 203(b), (c), 115 Stat. at 280-81.
Section 203(d) more generally authorizes sharing of information
``obtained as part of a criminal investigation,'' subject to the
following restrictions: (1) the information to be shared must comprise
``foreign intelligence or counterintelligence'' or ``foreign
intelligence information'' as those terms are specifically defined by
the relevant statutes; (2) the information may only be used by such
official ``as necessary in the conduct of that person's official
duties''; and (3) any such official must also comply with ``any
limitations on the unauthorized disclosure of such information.'' See
Pub. L. No. 107-56, Sec. 203(d), 115 Stat. at 281.
As the 9/11 Commission and others have noted, the need for
appropriate sharing of information between law enforcement and
intelligence officials is absolutely critical to detecting and
preventing terrorism. Moreover, the safeguards imposed by section
203(b) and section 203(d) seem properly tailored to ensure that law
enforcement officials will only share information that qualifies as ``
foreign intelligence or counterintelligence'' or ``foreign intelligence
information'' and will do so only subject to appropriate restrictions.
It must be emphasized that these modest provisions do not, as some
critics have wrongly claimed, put the CIA in the business of ``spying
on Americans.'' By definition, all information subject to sharing under
sections 203(b) and 203(d) has been obtained by the lawful
investigative activities of law enforcement officials either under
Title III or ``as part of a criminal investigation.''
(3) SECTION 204
Section 204 is a largely technical amendment that clarifies the
relationship between the authorities under the criminal statute
governing ``pen registers'' and ``trap-and-trace'' devices and the
authorities under otherwise applicable Federal law concerning certain
foreign intelligence activities. Pub. L. No. 107-56, Sec. 204, 115
Stat. at 281. I am not aware of an substantial reason why this
provision should not be made permanent.
(4) SECTION 206
Section 206 of the PATRIOT Act addresses the subject of so-called
``roving wiretaps'' under the Foreign Intelligence Surveillance Act of
1978 (``FISA''). In my view, section 206 strikes an appropriate balance
on this subject and should be preserved.
Under the current version of Section 105(c)(1)(B) of FISA, a FISA
order authorizing electronic surveillance only needs to specify the
nature and location of each such facility or place ``if known.'' 50
U.S.C. Sec. 1805(c)(1)(B). Notably, the addition of the phrase ``if
known'' was not made by the PATRIOT Act, but rather by the Intelligence
Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108,
Sec. 314(a)(2)(A), 115 Stat. 1394, 1402 (2001); that amendment is
therefore not subject to the PATRIOT Act's sunset provision. Although
current law thus dispenses with a specification requirement when the
exact nature and location of the facilities or places are not known in
advance, the existing version of Section 105(a)(3)(B) continues
unambiguously to State that an authorizing order may only be issued if,
inter alia, ``there is probable cause to believe that . . . each of the
facilities or places at which the electronic surveillance is directed
is being used, or is about to be used, by a foreign power or an agent
of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). Reading these
provisions together, it would seem clear that, even when it cannot be
specified in advance what are the particular facilities and places that
will be surveilled, the Government must nonetheless provide a
sufficient description of the categories of facilities and places that
will be surveilled (presumably by describing their connection to the
target) so as to permit the court to make the finding that remains
required by Section 105(a)(3)(B).
The pertinent change made by Section 206 of the PATRIOT Act was
merely to eliminate the requirement that the authorizing order in all
cases specify in advance those third parties (e.g., wire carriers) who
were directed to supply assistance in carrying out the order. See Pub.
L. No. 107-56, Sec. 206, 115 Stat. at 282 (amending 50 U.S.C.
Sec. 1805(c)(2)(B)). Instead, the PATRIOT Act states that, if the court
finds that ``the actions of the target of the application may have the
effect of thwarting the identification of a specified person,'' the
order may require the cooperation of other such persons who have not
been specified. Id. This modest change makes perfect sense: the prior
third-party-assistance specification requirement had the obvious
potential to allow targets to defeat surveillance simply by changing,
for example, from one cell phone to another. Indeed, it is hard to see
why one would want to allow this specific amendment to sunset: there is
no apparent advantage to requiring the Government to go back to the
FISA Court merely because the target has shifted from one wire service
provider to another.
Some have called for making the roving wiretap provisions of FISA
more analogous to those for ordinary criminal roving wiretaps in Title
III. Under 18 U.S.C. Sec. 2518(11), the requirement in ' 2518(1)(b)(ii)
to provide a ``particular description of the nature and location of the
facilities from which or the place where the communication is to be
intercepted'' does not apply if, inter alia, the application
``identifies the person believed to be committing the offense.''
Setting aside the issue about what the ``identification'' requirement
thus imposed by Title III requires here, the apparent intent of these
critics of Section 206 is that FISA should mimic Sec. 2518(11) by
imposing an identification requirement in any case in which the
requirement to specify particular places has been waived. The analogy,
however, is flawed, because of a crucial difference between ' 2518(11)
and Section 105 of FISA.
In addition to waiving the specification-of-places requirement in
Sec. 2518(1)(b)(ii), the roving wiretap provision of Title III also
waives the requirement in Sec. 2518(3)(d) that the court must first
find probable cause to believe that ``the facilities from which, or the
place where, the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in connection with
the commission of such offense, or are leased to, listed in the name
of, or common used by [the target].'' See 18 U.S.C. Sec. 2518(11)
(stating that the ``requirements of subsections (1)(b)(ii) and 3(d) of
this section relating to the specification of the facilities from
which, or the place where, the communication is to be intercepted do
not apply'' to roving wiretaps authorized under Title III). As I
explained above, FISA's analog to Sec. 2518(3)(d) of Title III is
contained in Section 105(a)(3)(B) of FISA, which states that an
authorizing order may only be issued if, inter alia, ``there is
probable cause to believe that . . . each of the facilities or places
at which the electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a foreign power.''
50 U.S.C. Sec. 1805(a)(3)(B). It is important to note that nothing in
the roving wiretap provisions of FISA waives this requirement. The
apparent effect of that difference is that unlike Title III, a FISA
roving wiretap application must still provide, as I explained earlier,
a sufficient description of the categories of facilities and places
that will be surveilled (presumably by describing their connection to
the target) so as to permit the court to make the additional probable
cause finding that remains required by Section 105(a)(3)(B). This
additional safeguard strikes a different balance from Title III, but an
appropriate one, and it makes any analogy to Title III inapt. That is,
in light of FISA's preservation of this requirement, the need for a
requirement to ``identify'' the target is doubtful. Indeed, because it
overlooks this crucial additional requirement that only FISA imposes,
the clear effect of incorporating Title III's restrictions would be to
make FISA roving wiretaps harder to obtain that Title III wiretaps.
(5) SECTION 207
Section 207 extends the time periods for which the FISA Court can
initially authorize, and later extend, electronic surveillance and
physical searches. See Pub. L. No. 107-56, Sec. 207, 115 Stat. at 282.
Notably, Section 207 only peimits these more generous time periods to
be used with respect to a FISA target who is not ``a United States
person.'' 50 U.S.C. Sec. 1805(e)(1)(B), (e)(2)(B) (limiting this
authority to ``an agent of a foreign power, as defined in section
1801(b)(1)(A) of this title''); id., Sec. 1801(b)(1) (stating that the
definition in that paragraph applies only to a ``person other than a
United States person'') (emphasis added). Pre-existing law had already
permitted more generous authorization periods for FISA orders directed
at entities, organizations, and groups that constitute ``foreign
powers,'' 50 U.S.C. Sec. 1805(e)(1)(A),(e)(2)(A), and Section 207
properly permits longer authorization periods to also be used only for
that subset of agents of foreign powers who are not United States
persons. There seems to be little advantage to allowing this provision
to sunset; the net effect would merely be more paperwork and a
diversion of scarce resources that would be more appropriately deployed
on other matters.
(6) SECTION 214
Section 214 is one of several provisions of the PATRIOT Act that
properly endeavor to ensure that there will be appropriate analogs, in
foreign intelligence investigations, for the various tools that are
available to assist law enforcement in criminal investigations. In
particular, Section 214 addresses the use of ``pen registers'' and
``trap and trace devices,'' i.e., instruments for collecting
information about the address or routing of a communication (e.g., the
telephone numbers of outgoing calls dialed on a telephone and the
telephone numbers of incoming calls), but not the content of the
communication.
The Supreme Court held long ago that the proper use of a pen
register does not implicate the Fourth Amendment, because there is no
reasonable expectation of privacy in the numbers dialed on a
telephone--numbers that, by definition, the dialer has voluntarily
turned over to a third party (i.e., the telephone company). Smith v.
Maryland, 442 U.S. 735, 744 (1979). Since 1986, however, Congress has
appropriately regulated the use of such devices, requiring (inter alia)
an attorney for the Government to make an application to a court in
which the attorney certifies that the information to be collected is
relevant to an ongoing criminal investigation. 18 U.S.C.
Sec. 3122(b)(2). Prior to Section 214, FISA analogously allowed the use
of pen registers and trap and trace devices in foreign intelligence
investigations, but the limitations imposed by FISA on such devices
were much more restrictive than in the criminal context. Specifically,
in contrast to the more generous ``relevance'' standard imposed in
criminal cases, FISA limited the use of such devices to situations
where the facilities in question have been or are about to be used in
communication with ``an individual who is engaging or has engaged in
international terrorism or clandestine intelligence activities'' or a
``foreign power or an agent of a foreign power.'' 50 U.S.C.
Sec. 1842(c)(3) (2000 ed.). Section 214 amended FISA's standards to
permit appropriate use of such devices upon a certification that the
device is likely to obtain (1) ``foreign intelligence information not
concerning a United States person'' or (2) information that is
``relevant to an ongoing investigation to protect against international
terrorism or clandestine intelligence activities.'' See Pub. L. No.
107-56, Sec. 214(a)(2), 115 Stat. at 286. In the latter context,
Section 214 provides explicit protection for the First Amendment rights
of United States persons. Id.
Under Section 214, the ability to use pen registers and trap and
trace devices under FISA is thus rendered more analogous in scope to
its criminal counterpart. With respect to information concerning a
United States person, Section 214 imposes the same standard of
``relevance'' to an ongoing investigation, but it also specifies that
the investigation must be one to protect against ``international
terrorism'' or ``clandestine intelligence activities.'' Given that 18
U.S.C. Sec. 3122 imposes a relevance standard in all ordinary criminal
cases, it is hard to see why that standard is not sufficient in an
intelligence investigation to protect against international terrorism
and clandestine intelligence activities. That is, if relevance to an
ongoing investigation is a sufficient basis for authorizing a pen
register in, say, a fraud case or a drug case, why would it not be a
sufficient basis for permitting the use of such a device to investigate
international terrorism?
(7) SECTION 215
Section 215 of the PATRIOT Act is another provision designed to
ensure that a tool available to assist law enforcement in ordinary
criminal investigations will have an appropriate counterpart in foreign
intelligence investigations. For a very long time, grand juries have
had very broad authority to obtain, by subpoena, records and other
tangible items that may be needed during the course of a criminal
investigation. Section 215 provides a narrow analog to such subpoenas
in the context of certain intelligence investigations under FISA.
Indeed, in many respects, Section 215 contains more protections than
the rules governing grand jury subpoenas:
A court order is required. 50 U.S.C. Sec. 1861(c).
The court is not merely a rubber-stamp, because the
statute explicitly recognizes the court's authority to ``modif[y]'' the
requested order. Id., Sec. 1861(c)(1).
The section has a narrow scope, and can be used in an
investigation of a U.S. person only ``to protect against international
terrorism or clandestine intelligence activities.'' Id.,
Sec. 1861(a)(1), (b)(2). It cannot be used to investigate domestic
terrorism.
The section provides explicit protection for First
Amendment rights. Id., Sec. 1861(a)(1), (a)(2)(B).
The draft bill would make the important clarification that the
records may only be obtained if they are ``relevant'' to an
investigation to protect against international terrorism or clandestine
intelligence activities. See Section 211(a)(1)(A), (2). As I understand
it, this amendment would not alter the current understanding of the
provision, but would merely eliminate any doubt about whether the
relevance standard is applicable here.
Some have called for a standard that is higher than ``relevance''
to an investigation, and have instead suggested that a Section 215
order should be granted only upon a showing of specific and articulable
facts giving reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power. This is much
too narrow a standard. Suppose that FBI agents suspected that an as-
yet-unidentified individual foreign agent may have consulted certain
specific technical titles on bomb-making or on nuclear power
facilities, and they are informed that 5 persons have checked out those
specific titles from public libraries in the relevant area and time
period. Because it cannot be said that there are ``specific and
articulable facts'' to suspect all 5 persons who checked out the books
as all being foreign agents (the most that can be said is that one of
them may be), application of such a high standard would seemingly
require more evidence before any of the records could be obtained. Even
if one were to agree that the general business records authority in
Section 215 might benefit from greater reticulation in the contexts of
particular types of records, this particular requirement seems too
strict. Given the various safeguards already in place in Section 215,
which adequately take account of the difference between investigations
under FISA and ordinary criminal investigations, there is insufficient
justification for a standard that is so much more demanding than the
ordinary ``relevance'' standard that has long governed grand jury
subpoenas in criminal investigations (some of which, like the Versace
murder and Zodiac gunman investigations, did consult library records).
Despite what some of its critics seem to imply, the narrowly
drafted business records provision in Section 215 has no special focus
on authorizing the obtaining of ``library records.'' On the contrary,
because the provision specifically forbids the use of its authority to
investigate U.S. persons ``solely upon the basis of activities
protected by the first amendment to the Constitution,'' the provision
explicitly does not authorize Federal agents to rummage through the
library records of ordinary citizens. Because I think this language
properly addresses a concern that has been raised about Section 215's
sweep, I would recommend against retaining Section 211(a)(1)(B) of the
draft legislation, which would appear to eliminate this clause of
Section 215, i.e., the clause that provides specific protection for
first amendment rights. That is, while I disagree with those who
recommend imposing additional significant substantive limitations on
Section 215, I would also recommend against eliminating the substantive
safeguards that are currently contained in the provision.
The draft legislation properly declines to create any sort of
carve-out for libraries from the otherwise applicable scope of Section
215: that would simply establish libraries and library computers as a
``safe harbor'' for international terrorists. Indeed, over the years,
grand juries have, on appropriate occasions, issued subpoenas for
library records in connection with ordinary criminal investigations. In
my view, a sensible privacy policy should allow an appropriately
limited analog in the FISA context, and Section 215 is just that.
Section 211(b) of the draft bill would make appropriate and
necessary clarifying changes to Section 215 by specifying that the
prohibition on nondisclosure of Section 215 orders is not intended to
preclude the recipient of such an order from consulting with counsel or
from requesting permission from the FBI to make other appropriate
consultations (e.g., perhaps consulting an accountant with respect to
an order requesting financial records).
Section 211(c) properly establishes additional procedural
protections by requiring the Attorney General to adopt ``minimization
procedures governing the retention and dissemination'' of any items
obtained under a Section 215 order.
The Attorney General, in his testimony before this Committee on
April 27, 2005, indicated that the Department of Justice agreed that a
recipient of a Section 215 order could bring a challenge to such an
order in court. Section 215 is silent as to where and how such a review
might be carried out, as is the draft bill. I would recommend that
specific provisions establishing the proper venue and procedures for
such challenges be set forth in legislation.
(8) SECTION 218
Despite being only one sentence long, Section 218 is one of the
most important provisions in the PATRIOT Act. Prior to Section 218, an
application for electronic surveillance under FISA had to contain a
certification that ``the purpose'' of the surveillance ``is to obtain
foreign intelligence information.'' 50 U.S.C. Sec. 1804(a)(7)(B) (2000
ed.). Section 218 changed the phrase ``the purpose'' to ``a
significance purpose,'' thus clarifying that the presence of other
purposes (such as a possible criminal prosecution) did not preclude a
FISA application. In doing so, Section 218 disapproved the ``primary
purpose'' test that had been engrafted onto the pre-PATRIOT Act
language. In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. of
Rev. 2002). This amendment, as many have noted, was important in
tearing down the ``wall'' between intelligence personnel and law
enforcement personnel. It should not be permitted to lapse. Moreover,
allowing Section 218 to expire could potentially put the law in a state
of confusion, because the Foreign Intelligence Surveillance Court of
Review has cast doubt on whether the ``primary purpose'' test was a
correct reading of the pre-PATRIOT Act statutory language. In re Sealed
Case, supra. As a result, there is considerable room for argument over
what exactly would be the effect of allowing this provision to lapse.
The Congress should ensure clarity in this important area of the law by
making Section 218 permanent. Section 101 of the draft legislation does
that, and Section 203 also includes a further, appropriate amendment
confirming the correctness of the Court of Review's conclusion that
FISA Section 101(e)(1)'s reference to c, protect[ing]'' against
international terrorism, etc., includes protecting by means of a
criminal prosecution that disables the foreign agents involved.
(9) SECTION 225
This section extends to the FISA statute the same immunity from
civil liability that exists under Title III for wire or electronic
communications service providers who assist in carrying out a court
order or an emergency request for assistance under FISA. Pub. L. No.
107-56, Sec. 225, 115 Stat. at 295-96. There is no good reason the
immunity of a service provider for carrying out court orders for
surveillance should depend upon whether the order was issued under
Title III or under FISA. This provision should be made permanent.
ADDITIONAL PROVISIONS OF THE DRAFT LEGISLATION
The draft bill also contains detailed provisions providing for the
use of ``administrative subpoenas'' in certain intelligence
investigations, and codifying (with changes) the use of so-called
``mail covers'' in such investigations. See Sections 213 and 212. The
authorization of administrative subpoenas by Section 213 would appear
to be an appropriate invocation of the principle that, if a tool is
available to fight other crimes, it should be available to fight
terrorism. Under 18 U.S.C. Sec. 3486(a), administrative subpoenas are
currently authorized in the investigation of, inter alia, a ``Federal
health care offense'' and ``a Federal offense involving the sexual
exploitation or abuse of children.'' As I said before, if the judgment
has already been made that this tool is appropriate for fighting these
other crimes, and that any privacy interests at stake must yield to
that effort, then surely the tool should also be available to fight
terrorism, and should have an analog in the foreign intelligence
context. The appropriate questions should, in my view, instead focus on
the technical issues concerning how such authority would be granted in
the FISA context. Thus, for example, to the extent that the procedures
specified in Section 213 differs from those in 18 U.S.C. Sec. 3486, are
those differences warranted by differential factors unique to the FISA
context? Moreover, what should be the relation between the scope of the
administrative subpoena authority in Section 213 of the draft bill and
the business records provision in Section 215 of the PATRIOT Act? These
are questions that I think warrant careful study and consideration. But
I find it very hard to say that administrative subpoena authority is
just fine when it comes to health care fraud, but is somehow a grave
threat to liberty when it comes to fighting terrorism.
The ``mail cover'' provisions in Section 212 relate solely to
information on the exterior of mail that is not subject to any
reasonable expectation of privacy, such as addressing information. The
provision appears to be fairly narrowly drafted in terms of the scope
of the authority it confers, the high-level approval it requires, and
the requirement for ``minimization'' with respect to retention and
dissemination of records obtained by a mail cover under this section.
Notably, the provision only applies to requests made to the ``United
States Postal Service.'' The apparent intent of the provision is to
ensure appropriate cooperation from the Postal Service, while leaving
the judgment whether to request the mail cover with the FBI. That
formal allocation of authority seems sensible (since only the FBI will
be privy to the full context of the intelligence investigation that
leads to the request). The Committee should evaluate whether it is
needed as a practical matter in light of the history on this issue
between the FBI and the Postal Service.
I would also like to make a brief comment about Section 202 of the
draft bill. This section would amend FISA's definition of ``content''
so that it more closely conforms with the definition of ``content''
under the Title III wiretap statute, 18 U.S.C. Sec. 2510(8). This
appears to be a sensible change. By defining ``any information
concerning the identity of the parties to [a] communication'' as
``contents,'' FISA's current definition could be misconstrued as
casting doubt on whether mere addressing information, not derived from
the substance of the communication, is ``contents.'' As the pen
register statutes reflect, mere addressing information is not
ordinarily considered to be ``contents,'' and there is no harm in
eliminating a perceived potential ambiguity in FISA on this score.
I would be pleased to answer any questions the Committee might have
on this subject.
STATEMENT OF DANIEL P. COLLINS, FORMER ASSOCIATE DEPUTY
ATTORNEY GENERAL AND CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF
JUSTICE
Mr. Collins. Chairman Roberts, Vice Chairman Rockefeller,
members of the Committee, I'm pleased to testify before you
today on the important bill and the important subject that
you've taken up.
The title of the PATRIOT Act, we're used to calling it the
PATRIOT Act but that stands for Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism. And part of this
Committee's work is evaluating whether, in light of the
opportunity since enactment of the PATRIOT Act to review those
tools, whether they are still judged to be appropriate.
The draft bill before the Committee would make nine of
those tools permanent, and I agree with that assessment. Today,
as in 2001, they remain appropriate tools in the war on terror.
I've addressed all nine of those in my written statement. I'd
like to focus on two of them and then make a few comments on
administrative subpoenas.
Section 206 on roving wiretaps has been a subject of
significant controversy--section 206 of the PATRIOT Act. As
I've set forth in my written statement, I think that it's based
on a misunderstanding of the differences between FISA and Title
III, because the primary criticism toward section 206 is that
it does not incorporate all of the restrictions that are
contained on roving wiretaps in Title III on the criminal side.
But that is because Title III, on the other hand, waives
certain other restrictions that are present in FISA.
So you have actually a different set of restrictions on
each side of the ledger. It's a different balance struck on
each side. But I think in both cases it's an adequate balance
that is struck, and that therefore that provision should be
made permanent without modification.
Section 215 of the PATRIOT Act is another provision that's
designed to ensure that on the intelligence and national
security side, there are counterparts in terms of investigative
tools to the tools that are present on the criminal side. And
that is the provision that allows for access with a court order
to business records.
And the current version of Section 215 contains a number of
protections. A court order is required. The court is not merely
a rubber stamp, because the statute explicitly recognizes the
right of the court to modify the requested order. It has a
narrow scope that is specified in the statute. It can't be used
to investigate, for example, domestic terrorism. And it
provides explicit protection for First Amendment rights, a
provision that I think should be retained in that statute.
The draft bill that's before the Committee would make this
permanent, would make, I think, an important clarification that
the relevance standard, which is actually not reflected on the
text of the current provision, is meant to be in the provision
and that is made explicit in the provision as modified by the
bill before this Committee.
Also, the bill properly establishes additional procedural
protections by requiring the Attorney General to adopt
minimization procedures governing the retention and
dissemination of any items obtained under a Section 215 order.
There's been reference this morning to the fact that the
Attorney General, in his testimony before this Committee on
April 27, indicated that judicial review should be available to
challenge 215 orders. That is not a subject that is currently
addressed in Section 215 and I would respectfully submit would
be profitably addressed in draft legislation.
The draft bill also contains a provision which has been the
subject of much discussion concerning administrative subpoenas.
With respect to that provision, my basic approach to that is
that with respect to terrorism--which is essentially one of our
most important priorities, is fighting terrorism--there should
be something equivalent to a most-favored-nations clause.
If we have a tool that is available for some other crime,
for some lesser harm, and we have presumably already made the
choice that privacy interests that are at stake with respect to
that tool must yield in those other circumstances, then I think
the burden is on those to say why that tool should not be
extended to terrorism. It would seem that without more, it
should be applied terrorism. And I think that is the basic
logic behind the extension of the administrative subpoena here.
The placement of the administrative subpoena authority on
the FISA side does raise, I think, a number of questions that
need to be addressed. First and foremost is, what is the
relationship between that authority and the authority that
exists within Section 215, because there's certainly a
significant overlap between the business records authority, and
indeed the standards are described similarly in the two
devices.
Senator Feinstein suggested that the administrative
subpoena should apply only in emergency situations, and
presumably would leave the Section 215 authority to be the
authority that is invoked in the non-emergency situations.
Another possibility would be, in crafting the regime of
judicial review for Section 215, to make the standards more
lenient--in other words, that the judicial review would be less
searching on the Section 215 side than it might be on the
administrative subpoena side if the Department went to the
trouble of getting judicial review of the order before it was
actually issued. There are a number of possibilities the
Committee could consider in that regard.
Mr. Kris has raised the issue of delegation, that if
there's concern about whether it should be placed with the
Director or particular officials within the Bureau, that it
could be raised to the Attorney General and leave the Attorney
General with flexibility to change the designation.
There's also the issue of the court that should conduct the
review. The current provision on administrative subpoenas here
would give any district court in the United States the
authority to hear the challenges. Another possibility would be
to model the judicial review after, in a sense, the pen/trap
provision that's in FISA, which allows the FISA court or, in
that case, its magistrate judges, a list of magistrate judges
publicly designated by the Chief Justice.
You could have a similar model apply to the districts
across the country so that we would know that you were
selecting venues that would have the capacity to act quickly in
terms of the facilities, et cetera, to handle something that
would involve in-camera review of sensitive material.
I would be pleased to answer any questions the committee
may have.
Chairman Roberts. We thank you very much for your
testimony, Mr. Collins. Mr. Dempsey, you're next. And I would
like to put a bug in your ears. I'm not asking for a rendition
of Capital Gang or anything that's on television, but if each
of you would have a comment on any of the others' comments in
terms of a suggestion, why, we would be interested in that
after Mr. Dempsey finishes his testimony.
And so we will now ask Mr. Dempsey for his commentary,
please.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey, Executive Director,
Center for Democracy & Technology*
Chairman Roberts, Vice Chairman Rockefeller, Members of the
Committee, thank you for the opportunity to testify this morning. I
previously testified before the Committee on April 19, at which time I
urged the Committee to preserve the PATRIOT Act powers but to adopt
checks and balances to make them more effective and less subject to
abuse. In particular, I stressed the role of prior judicial review
based upon a factual showing and particularized suspicion. The draft
bill before the Committee takes some small steps in the right
direction, but overall the draft shifts radically in exactly the wrong
direction.
---------------------------------------------------------------------------
* The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Among our
priorities is preserving the balance between security and freedom after
9/11. CDT coordinates the Digital Privacy and Security Working Group
(DPSWG), a forum for computer, communications, and public interest
organizations, companies and associations interested in information
privacy and security issues.
---------------------------------------------------------------------------
In particular, I will focus on the proposal for administrative
subpoenas in national security investigations. This is a big deal. The
first, threshold question of need has not been addressed. And contrary
to what has been said by some, there is no precedent in existing law
for the grant of administrative subpoena power to the FBI in national
security cases. Given the unique nature of intelligence investigations,
which call for greater not lower standards, we urge the Committee to
reconsider and reject this proposal.
At the outset, let me re-emphasize some basic points on which I
hope there is widespread agreement:
Terrorism poses a grave and imminent threat to our nation.
There are people--almost certainly some in the United States--today
planning additional terrorist attacks, perhaps involving biological,
chemical or nuclear materials.
The government must have strong investigative authorities
to collect information to prevent terrorism. These authorities must
include the ability to conduct electronic surveillance, carry out
physical searches effectively, and obtain transactional records or
business records pertaining to suspected terrorists.
These authorities, however, must be guided by the Fourth
Amendment, and subject to meaningful judicial controls as well as
executive and legislative oversight and a measure of public
transparency.
INTELLIGENCE INVESTIGATIONS ARE MORE DANGEROUS TO LIBERTY THAN CRIMINAL
INVESTIGATIONS--THEY ARE BROADER, CAN ENCOMPASS FIRST AMENDMENT
ACTIVITIES AND ARE MORE SECRETIVE AND LESS SUBJECT TO AFTER-THE-FACT
SCRUTINY--AND THEREFORE INTELLIGENCE POWERS REQUIRE STRONGER
COMPENSATING PROTECTIONS
Throughout the PATRIOT Act debate, and now in the context of
administrative subpoenas, the government has argued that it should have
the same powers subject to the same standards in intelligence
investigations that it has in criminal investigations. As we will
explain below, administrative subpoenas are not normally available in
criminal investigations, but even if they were, there are strong
reasons not to extend criminal justice norms (like ``relevance'') to
intelligence investigations.
Intelligence investigations are special, in ways that make them
preferable to the government, but also in ways that make them more
dangerous to liberty than criminal investigations. First, intelligence
investigations are broader. They are not limited by the criminal code.
They can investigate legal activity. In the case of foreign nationals
in the United States, they can focus solely on First Amendment
activities. Even in the case of U.S. persons, they can collect
information about First Amendment activities. In this context, the
concept of ``relevance'' has little meaning. Look at Section 215 and
the proposed administrative subpoena authority. They refer to ``an
investigation to protect against international terrorism.'' The
standard does not say ``an investigation into international terrorism
activities''--that would at least mean that there was some specific
terrorism activity being investigated. Instead, it says ``an
investigation to protect against international terrorism.'' Think about
an investigation to ``protect against'' tax fraud. Or an investigation
to ``protect against'' bank robbery. How broad would that be?\1\
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\1\ This point was articulated by Suzanne Spaulding in her May 10,
2005 testimony before the Senate Judiciary Committee.
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Second, intelligence investigations are conducted in much greater
secret than criminal cases, even perpetual secret. When a person
receives a grand jury subpoena or an administrative subpoena in an
administrative proceeding, normally he can publicly complain about it.
In a criminal case, even the target is often notified while the
investigation is underway. Most searches in criminal cases are carried
out with simultaneous notice to the target. Even though wiretaps are
conducted in secret, the target is notified afterwards. Notice is an
important element of Fourth Amendment norms, but most searches and
wiretaps in intelligence investigations are secret forever. Under the
proposed administrative subpoena authority, the FBI can compel the
recipient to perpetual secrecy.
Third, the big show in a criminal investigation is the trial. A
prosecutor knows that, at the end of the process, his actions will all
come out in public. If he is overreaching, if he went on a fishing
expedition, that will all be aired, and he will face public scrutiny
and even ridicule. That's a powerful constraint. Similarly, an
administrative agency like the SEC or the FTC must ultimately account
in public for its actions, its successes and its failures. But most
intelligence investigations never result in a trial or other public
proceeding. The evidence is used clandestinely. Sometimes the desired
result is the mere sense that the government is watching.
Since intelligence investigations are broader, more secret and
there is no after the fact scrutiny, protections must be built in at
the beginning. That is where the PATRIOT Act fell short and where the
proposal for administrative subpoenas falls short.
THE DIGITAL REVOLUTION IS PLACING MORE AND MORE INFORMATION IN THE
HANDS OF THIRD PARTIES
Section 215 of the PATRIOT Act and to an even greater degree the
administrative subpoena authority are of especially grave concern
because they exploit trends in technology that threaten to almost
eliminate privacy. More and more information about our lives is
collected in daily transactions by those with whom we transact
business. Grocery stores, other merchants, hotels, travel agents,
insurance companies, and banks all collect computerized information
about our actions. Credit cards, EZ passes, cell phones, and the
Internet generate digital fingerprints giving a broad picture of our
interests and associations. Congress has tried to keep pace, with laws
on financial privacy and medical privacy, but the administrative
subpoena provisions of the draft bill would wipe those protections
away.
Moreover, a storage revolution is sweeping the field of information
and communications technology. ISPs, websites and other online service
providers are offering very large quantities of online storage, for
email, calendars, photographs and even voicemail. Increasingly,
ordinary citizens are storing information not in their homes or even on
portable devices but on networks, under the control of service
providers who can be served with compulsory process and never have to
tell the subscribers that their privacy has been invaded.
THE THRESHOLD QUESTION--THERE HAS BEEN NO SHOWING OF NEED
The 9/11 Commission concluded that the burden of proof for
retaining--and equally so for adding--a particular governmental power
should be on the executive to explain that the power actually
materially enhances security. To show that a power is needed, the
government must show that current powers are inadequate. With respect
to administrative subpoenas, the government has not met that burden.
As the Justice Department itself has noted, the rationale behind
administrative subpoenas is that ``Without sufficient investigatory
powers, including some authority to issue administrative subpoena
requests, Federal governmental entities would be unable to fulfill
their statutorily imposed responsibility to implement regulatory or
fiscal policies.'' U.S. Department of Justice, Office of Legal Policy,
``Report to Congress on the Use of Administrative Subpoena Authorities
by Executive Branch Agencies and Entities, pursuant to Public Law 06-
544'' (2002) at p. 6. As the DOJ goes on to note, limiting this
authority ``would leave administrative entities unable to execute their
respective statutory authorities.'' Id at 7.
Under current law, the FBI already has far-reaching and sufficient
compulsory powers to obtain any relevant information when it is
investigating terrorism, under both its criminal and intelligence
authorities:
Search Warrants. In any criminal investigation of
international terrorism, the FBI can obtain a search warrant for
documents or other materials if there is a judicial finding of probable
cause that a crime is being planned. Search warrants can be issued not
only to search a suspect's home, but also to obtain documents from any
other third party if they constitute evidence of a crime.
Grand Jury Subpoenas. The FBI also can use grand jury
subpoenas in any criminal investigation of international terrorism to
obtain any documents or other materials.
FISA Orders and NSLs. In internatiional terrorism cases,
the FBI has sweeping authority to obtain business records and any other
tangible things under the Foreign Intelligence Surveillance Act, as
amended by the PATRIOT Act. This authority exists not only in Section
215, but also in the five National Security Letter authorities for
those categories of records considered especially pertinent to
intelligence investigations.
The government has made no showing that these powers are
insufficient. To the contrary, it has repeatedly praised the PATRIOT
Act as providing the necessary tools to prevent terrorism and to
prosecute a host of terrorism-related cases. Given these broad existing
powers, and given the widespread public and Congressional concern that
some of the existing PATRIOT Act powers are not subject to sufficient
checks and balances, there is no justification for going even further
down the path of unchecked authority.
THERE IS NO PRECEDENT FOR GIVING THE FBI ADMINISTRATIVE SUBPOENA
POWER--WHAT WE DO WITH ``CROOKED DOCTORS'' HAS NO BEARING ON NATIONAL
SECURITY INVESTIGATIONS
Contrary to what has been said by some, there is no precedent for
giving the FBI administrative subpoena power. The FBI has long sought,
and Congress has long rejected granting it, the authority to issue its
own orders compelling disclosure of records. This is an issue that goes
back to the momentous debates around the ``FBI Charter'' in the late
1970s and early 1980s, when administrative demand authority was one of
the most contentious issues. More recently, in July 1996, after the
Oklahoma City bombing, the Administration sought administrative
subpoena authority and Congress rejected it. In 2001, in the original
PATRIOT Act proposal, the Administration again sought administrative
subpoena power and again Congress rejected it.
Congress has repeatedly denied the FBI the power to write its own
compulsory orders for good reason. An administrative subpoena is an
extraordinary device. In this case, it is essentially a piece of paper
signed by an FBI official that requires any recipient to disclose any
documents or any other materials. (We note that the proposed
administrative subpoena in the Committee draft would not convey the
power to compel a person to give testimony to the FBI. This, at least,
is an important line to draw.)
In a 2002 study, the Department of Justice identified approximately
335 administrative subpoena authorities existing in the law.\2\ Of
those, 330 are for administrative agencies and not really relevant
here, since, to say the least, the FBI's intelligence division is not
an administrative agency. The 330 are in the context of administrative,
regulatory programs--such as OSHA and the SEC. They are subject to
various checks and balances. They often issue directly to the subjects
of investigations. They are generally not subject to secrecy rules.
Only 5 are for use primarily in criminal investigations and even those
have histories and limitations that make them unsuitable as analogies
for what the FBI is seeking:
---------------------------------------------------------------------------
\2\ U.S. Department of Justice, Office of Legal Policy, ``Report to
Congress on the Use of Administrative Subpoena Authorities by Executive
Branch Agencies and Entities, pursuant to Public Law 06-544'' (2002).
See also Charles Doyle, Congressional Research Service,
``Administrative Subpoenas and National Security Letters in Criminal
And Foreign Intelligence Investigations: Background and Proposed
Adjustments'' (April 15, 2005).
---------------------------------------------------------------------------
21 USC 876--Controlled Substances Act. When the FBI in
1982 was given joint jurisdiction with the DEA over drug enforcement,
it got for drug cases the administrative subpoena authority that went
with the enforcement of the regulatory system for controlled
substances. The subpoenas are served, for example, on pharmacies and
doctors suspected of engaging in the diversion of controlled substances
to the black market. According to CRS, ``The earliest of the three
Federal statutes used extensively for criminal investigative purposes
appeared with little fanfare as part of the 1970 Controlled Substances
Act. . . . [T]he legislative history of section 876 emphasizes the
value of the subpoena power for administrative purposes--its utility in
assigning and reassigning substances to the acct's various schedules
and in regulating the activities of physicians, pharmacists and the
pharmaceutical industry. . . .''
5 U.S.C. App. (III)--Inspectors General Act. The Inspector
General system is unique, because it is largely focused inward, toward
the conduct of Federal agencies and programs. The Inspectors General
seek to achieve systemic reform, and their powers are quasi-regulatory.
They oversee the administration of Federal procurements, the use of
Federal resources and the administration of Federal procurements.
U.S.C. 3486(a)(1)(A)(i)(I)--In a little-noticed provision
in the Health Insurance Portability and Accountability Act (HIPAA), the
massive medical insurance law of 1996, the Department of Justice was
given administrative subpoena authority for investigation of Medicare
and Medicaid fraud. Notably, the Attorney General has not delegated his
administrative subpoena power to the FBI in health care fraud
investigations. The medical care sector is highly regulated. Medicare
and Medicaid involve Federal tax dollars. Generally, in these cases,
the government serves the subpoena on the entity it is investigating,
not some third party. Thus, when the Justice Department demands records
from a hospital or insurance company as part of a health care fraud
investigation, it is investigating that hospital or insurance company--
not the customers of those entities. That creates some built-in checks
on the administrative subpoena process. Indeed, the HIPAA rules for
administrative subpoenas require that individuals' health information
contained in those records can be depersonalized whenever possible.
18 U.S.C. 3486(a)(1)(A)(i)(II)--The administrative
subpoena provision for child abuse cases was also adopted without much
debate and is used mainly to obtain subscriber account information from
Internet Service Providers. See 18 U.S.C. 3486(a)(1)(C).
18 U.S.C. 3486(a)(1)(A)(ii)--The Secret Service has
authority to issue administrative subpoenas, but only in cases
involving an ``imminent'' threat to one of its protectees. According to
the Department of Justice, ``Where a finding of ``imminence'' is not
appropriate, the Secret Service does not seek an administrative
subpoena but proceeds, instead, through the process of procuring a
grand jury subpoena through a local United States Attorney's office.''
DOJ report, p. 39. The provision was adopted in 2000, but the authority
was not delegated to the Secret Service until November 2001, and in
calendar 2001, neither the Secretary of the Treasury nor the Secret
Service issued a single administrative subpoena.
It is apparent from the foregoing that the FBI's administrative
subpoena authority is limited to only two situations, drug matters and
child abuse cases. The former is largely related to the administration
of a regulatory scheme and is often subject to the accountability that
comes from serving the subpoena on the target (a drug company or
pharmacy), rather than secretly on a third party. By contrast, the
administrative subpoena proposal in the Committee draft is designed to
allow the FBI to obtain information, in secret, from entities that are
not under investigation themselves but have customers whose records the
FBI is seeking. The person under investigation never knows that the FBI
has sought or obtained those records. With no other external check like
a court or grand jury, the FBI would have almost limitless power to
collect sensitive personal information.
JUDICIAL CHALLENGE IS A LIMITED PROTECTION, INSUFFICIENT TO OVERCOME
CONCERNS WITH THE AUTHORITY
The Committee bill would allow the recipient of an administrative
subpoena to challenge it, and consideration is being given to providing
some form of judicial challenge for Section 215 orders. While judicial
challenge is appropriate, it does not resolve our concerns, for two
reasons:
First, few recipients of Section 215 orders or administrative
sybpoenas would be likely to challenge them. These disclosure orders
are not served on individuals. They are served on businesses--airlines,
hotel chains, and other third parties. These businesses are provided
immunity for complying. They never have to tell their customers that
there records have been soought and the customers never receive notice.
So why would such a business go to the expense of challenging a Section
215 order or administrative subpoena? A business has little incentive
to spend its money challenging a subpoena for records that pertain to
someone else. And since the business is prohibited from notifying its
customer of the existence of the subpoena, the customer has no right to
challenge the subpoena.
Second, the rules for administrative subpoenas require the courts
to be extremely deferential to executive branch agencies. Courts must
defer to an agency's determination of relevancy ``so long as it is not
`obviously wrong.' '' United States v. Hunton & Williams, 952 F. 2d.
843, 845 (3rd Cir. 1995). The Third Circuit noted that the
``reasonableness'' inquiry in such cases is even more deferential than
the Administrative Procedure Act's ``arbitrary and capricious''
standard for review of agency action. Id. As the Justice Department
admits, ``the burden of proof imposed on a challenger to an
administrative subpoena is steep.'' DOJ Report. For example, a
challenge based on bad faith will be successful only upon a showing of
``institutionalized bad faith, not mere bad faith on the part of the
official issuing the subpoena.'' United States v. LaSalle Nat'l Bank,
437 U.S. 298, 316 (1978).
INTELLIGENCE INVESTIGATIONS POSE UNIQUE RISKS AND REQUIRE SPECIAL
PROTECTIONS
The argument is made, if over 300 agencies have administrative
subpoena power, why shouldn't the FBI in intelligence investogations.
The answer is that no doctor will be deatined and deported in a secret
proceeding following use of the HIPAA administrative subpoena power, no
pharmacist will be held in a military prison as an illegal enemy
combatant based on information provided under the Controlled Substances
Act, no subject of an administrative subpoena will be sent to Egypt via
``rendition'' in a child abuse investigation. The governemnt has
claimed an extraordinarily broad range of powers in intelligence
investigation, especially against foreign nationals but also against
citizens. Given the secrecy with which these investigations are
conducted, their breadth, and the lack of after-the-fact checks and
balances, protections of liberty must come up front, in the form of
meaningful judicial review based on a factual premise and
particularized suspicion.
MAIL COVERS
We will say only a few words on the provisions related to mail
covers. First, we know of no justification for this provision. We
suspect that the problems the FBI has encountered with the Postal
Service are minor and could be resolved by negotiation, perhaps
mediated by this Committee.
Second, though, we fear that the proposal is not merely a
codification of existing practice but rather than shift of power from
the Postal Service to the FBI. We note that the Postal Services
regulations start with an affirmation of the policy that the ``U.S.
Postal Service maintains rigid control and supervision with respect to
the use of mail covers.'' 39 CFR 233.3. We are concerned that the FBI
may not be as careful.
Finally, we note a fundamental question: Is the concept of a mail
cover, whether administered by the Postal Service or the FBI, outdated?
Congress has moved to bring a variety of intelligence processes under
the supervision of the FISA court. Section 215 applies to business
records, and FISA also requires court approval for use of pen registers
and trap and trace devices. The mail cover is a little like a
transactional record, although it requires effort to create it. The
mail cover is also comparable to a pen register or trap and trace
device: A mail cover collects to and from information on surface mail,
a pen register collects to and from information on a telephone call or
email. The records provision of FISA and the pen/trap are both subject
to judicial approval. If the Committee really found a need to codify
mail cover authorities, then it should consider making all
transactional record provisions subject to the same standard: judicial
approval, based on a factual showing and particularity.
CONCLUSION
Twenty-five public interest organizations from across the political
spectrum have written to oppose the administrative subpoena provision.
Their letter states:
At the very time when there seems to be an emerging consensus
around adding meaningful checks and balances to PATRIOT Act
powers to protect against government abuse, ``administrative
subpoenas'' would represent a new, unchecked power. At the very
time when the Attorney General is supporting amendments to
strengthen judicial oversight of orders under Section 215 of
the PATRIOT Act, authorization of ``administrative subpoenas''
would move radically in the opposite direction.
Indeed, Attorney General Gonzales has repeatedly emphasized
that the prior judicial approval required for Section 215
orders is a safeguard against abuse. The Attorney General's
assurances would be meaningless, however, if the FBI could
issue disclosure orders with no judicial approval.
The Center for Democracy and Technology looks forward to working
with you to strike the right balance, to ensure that the government has
the tools it needs to prevent terrorism, and that those tools are
subject to appropriate checks and balances.
STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Dempsey. Chairman Roberts, Vice Chairman Rockefeller,
good morning. Thank you for the opportunity to testify at this
hearing.
The premise of my testimony, Mr. Chairman, is that
terrorism poses a grave and urgent threat to our Nation and
that the government must have strong investigative powers to
collect information to prevent terrorism, and that these
authorities must be subject to clear standards and meaningful
judicial controls, as well as executive and legislative
oversight.
Although we have serious concerns about the mail-cover
proposal--and I'll be happy to address some of the other
questions that Vice Chairman Rockefeller raised--I will focus
on the proposal for administrative subpoenas.
What the bill proposes is a very big step. The first
threshold question of need has not been addressed adequately.
And, contrary to what has been said, administrative subpoena
power is not generally available in criminal cases. Even if it
were, the argument that the government should have the same
powers, subject to the same standards, in intelligence
investigations that it has in other investigations is off
track.
The fact is, the government is seeking the tools of
administrative or criminal investigations without the checks
and balances. Intelligence investigations are different from
criminal investigations in ways that make them preferable to
the government but also in ways that make them more dangerous
to liberty.
First, intelligence investigations are broader. They're not
limited by the criminal code. They can investigate legal
activity. Even in the case of U.S. persons, they can collect
information about First Amendment activities.
Terrorism is uniquely ideological. By definition, it
involves political views. In this context, the concept of
relevance has little meaning.
Second, intelligence investigations are conducted in much
greater secrecy than criminal or administrative cases, even
perpetual secrecy. When a person receives a grand jury subpoena
or an administrative subpoena, often he can complain about it
at the time, and any secrecy imposed is limited. Intelligence
investigations, of course, are generally kept secret forever.
Third, the big show in a criminal investigation is the
trial. The prosecutor knows that at the end of the process, his
actions will all come out in public. If he was on a fishing
expedition, that will come out. He could be subject to
ridicule. That's a powerful constraint.
Now, if the government really wanted the same powers in
intelligence investigations that they have in criminal
investigations, I would be inclined to say, ``Fine, let them
issue subpoenas publicly without secrecy. Let them inform the
target. Let them be focused and limited only to investigating
crimes.'' But that's not what intelligence investigations are
about. And that's why they need special protections.
Now, on the threshold question, there's been no showing of
need. The government has failed to show need, with the one
exception of speed--and I'll address the question of urgency or
emergencies. Other than that, they have not shown that their
current counter-
terrorism powers are inadequate.
Senator, why do 330 administrative agencies have
administrative subpoena power? Because otherwise they could not
do their jobs. They have no grand jury power. They have no
National Security Letter authority. They have no orders under
Section 215 of the PATRIOT Act and FISA. The justification for
the administrative subpoenas is that those are non-criminal
agencies.
In the absence of a showing of need, one argument for
administrative subpoenas has been that, well, everybody else
has it. But, if you look at the record closely, you will see
that there is no precedent for granting the FBI administrative
subpoena power in national security cases. This is an issue
that goes back decades. I always tell people I have in my files
on this mimeographed documents. Back in the momentous debate
over the FBI charter in the seventies and eighties, the FBI
sought administrative subpoena power, Congress declined to give
it.
More recently, in 1996 after the Oklahoma City bombing and
the African embassy bombings, the administration sought
administrative subpoena power and Congress rejected it. In
2001, in the original PATRIOT Act proposal, the administration
sought administrative subpoena power, and the Congress rejected
it.
In 2002, the Justice Department completed a study in which
they identified approximately 335 administrative subpoena
authorities existing in law. Of those, 330 are for
administrative agencies and not really relevant here since, to
say the least, the FBI national security division is not an
administrative agency. Only five of the administrative subpoena
powers on the books are primarily used in criminal
investigations and, of those, only two are available to the
FBI.
Everybody talks about crooked doctors. The administrative
subpoena power for health care investigations grows out of a
regulatory scheme for Medicare and Medicaid and the
administration of those systems. And as far as I know, that
administrative subpoena power resides in the Justice Department
and has not been delegated by the Attorney General to the FBI.
If anybody has any information to the contrary, I'd welcome it,
but, as far as I know, that is not an FBI power for health care
investigations.
Second, is Inspectors General but they largely look inward.
They administer government programs. There's no inspector
general for the FBI, and there's no inspector general
administrative subpoena power at the FBI. The Secret Service
has administrative subpoenas, but only for imminent threats to
protectees. Otherwise, the Secret Service has to go the grand
jury route as well.
So, we come down to two--one for drugs, which also grows
out of an administrative process; the whole scheduling of
prescription drugs and narcotics, and the regulation of
pharmacies to make sure drugs aren't diverted into the illegal
market. And then one for child abuse cases, which is largely
limited, if you look at the statute, to obtaining customer
identifying information in the case of communications, which
for national security investigations, the FBI already has with
the National Security Letter.
So the issue seems to boil down to the question of speed
and, if so, then the solution is clear. And I think Senator
Feinstein has offered it--an emergency exception to Section
215, the business records provision. Title III, the criminal
wiretap law, the criminal pen register law, FISA for electronic
surveillance, FISA for physical searches, all have emergency
exceptions.
You have to go get a court order, generally, to do a
wiretap or to get a pen register, but there's an emergency
exception. Section 215 could have--maybe should have--an
emergency exception, not as a matter of course, not as a
general rule, but in those situations where speed is of the
issue.
Intelligence investigations pose unique risks, and they
require special protections. No doctor will be detained and
deported in secret proceedings based upon an administrative
subpoena issued in a healthcare investigation. No subject of an
administrative subpoena will be sent to Egypt via rendition in
a child abuse case. The Inspectors General are not worried
about the use of political demonstrations as a cover for
terrorism, but the FBI is.
The government has claimed an extraordinarily wide range of
powers in intelligence investigations. Given the secrecy with
which these investigations are conducted, their breadth, and
the fact that most of them never come to light, that the
subjects never know that they were being conducted, protections
of liberty must come up front in the form of meaningful
judicial review based on a factual premise and particularized
suspicion.
I'll be happy to discuss mail covers and some of the other
issues posed by both the Committee draft bill as well as the
PATRIOT Act.
Thank you, Mr. Chairman. I look forward to your questions.
Chairman Roberts. We thank you Mr. Dempsey.
As I indicated, if any member of the panel has any comment
to make at this particular time, hearing the summation of the
total panel, now would be the time to offer any commentary. And
we already have a hand raised with Mr. Onek.
Mr. Onek. I'd like to take off on two comments by Mr.
Collins. The first is when he talked about the most-favored
nation rules. As I think my testimony and Mr. Dempsey's
testimony suggest, we'll live by that rule, because there is no
comparable subpoena power anywhere else. There is no subpoena
power that's as broad and there is no subpoena power that's as
secret. So, the most-favored nation rule is fine because
there's nothing equivalent, and what is being suggested here is
absolutely new.
Second, Mr. Collins was discussing Section 215, and
definitely, and he said the court order is not a rubber stamp.
And this is interesting because the administration, throughout
the debate on the PATRIOT Act, as been going around the country
saying how wonderful Section 215 is. Now, we tend to disagree,
although we like the fact that Section 215 does have a court
order, but now, after going around the country and saying how
wonderful Section 215 is, they're eviscerating it. Section 215
will become unnecessary, because the FBI will simply be able to
use administrative subpoenas.
So it's just inconsistent. You can't go around defending
Section 215 and saying it's good because the judge is not a
rubber stamp and the judge can do this and the judge can do
that, and he can modify the order, et cetera, et cetera, and
then propose something which just wipes Section 215 off the
map. It's just totally inconsistent.
Chairman Roberts. Mr. Collins, I presume you would like to
say something.
Mr. Collins. Yes I would, Mr. Chairman.
I think it is not accurate to say that there's no
precedent. I think Mr. Dempsey has incorrectly described the
scope of the administrative subpoena authority, for example, in
child porn cases. He indicated that it was limited to the NSL-
type information that can be requested under 2709.
If you look at 18 USC 3486, which describes the scope of
the administrative subpoena authority in child porn cases,
there is a specific provision that governs subpoenas in those
cases to providers of electronic communications. That's in
subparagraph C, but in the paragraph before, it says, except as
provided in subparagraph C--so we treat electronic service
providers differently--a subpoena issued under subparagraph A
may require ``the production of any records or other things
relevant to the investigation'' and ``testimony by the
custodian of the things required to be produced concerning the
production and authenticity of those things.''
It is as broad; it is indeed the model, so far as I can
tell, for the draft bill that is before the Committee, where
relevance is the operative standard. Indeed the draft bill
before the Committee is in one respect narrower in that it does
not authorize the actual taking of physical testimony. It does
not require anyone to actually show up, but merely requires
production of the documents and a certification. So in one
respect, actually, it's even narrower than the child porn model
that's already in existing law on the criminal side.
Chairman Roberts. Mr. Dempsey, do you have any response to
that?
Mr. Dempsey. All I'll say, Mr. Chairman, is that the most
important evidence in a child porn investigation is what's
stored on the computer, or what's with the service provider.
Chairman Roberts. Or the child.
Mr. Dempsey. Well, you're trying to find the child, which
means you're trying to find the person who might have him, and
the administrative subpoena power is limited to subscriber
identifying information.
Chairman Roberts. The distinguished vice chairman has a
question.
Vice Chairman Rockefeller. What interests me about all of
this--neither the Chairman nor myself are lawyers, which is----
Chairman Roberts. A good thing.
[Laughter.]
Vice Chairman Rockefeller. Which is a good thing. But it
also causes us to look at the way people who are lawyers,
whether they're from the FBI or formerly associated with other
administrations, look at things. And it occurs to me that
people get very hung up on precedents or the possibility of
something going wrong and that somebody's rights might get
violated.
I think we look at that, and without being conclusive in
our thinking, as I indicated in my opening statement, this is
kind of a new era. Now, we put into place the PATRIOT Act
shortly after 9/11. There were a lot of new things in that, and
some of them have--I would say for the most part, I have been
impressed at how little criticism it has received except in
some quarters, and there it's very, very hard, hard shell.
What is wrong in taking ideas, like an administrative
procedures approach--subpoenas approach--and not making the
conclusion that the government will set out to violate rights,
but understanding that in a new world--and when I say that, I
say that with the fullest, deepest concern about the future of
our country--and homeland security is not only the great weak
link, but homeland security also affects this conversation. So,
it's a form of homeland security, security of the American
people, also the rights of the American people.
What is wrong in taking something which could do good and
which could very well pick up that person at the hotel more
quickly that the DOJ witness referred to, and saying, as I
think you did Mr. Kris--you just nodded, so I just picked on
you--that you go with that.
You worry about it, but you don't make it permanent. You do
what we did in fact with the original PATRIOT Act, which is to
say we are introducing new concepts here, because 9/11 was
extraordinary, and by the way, the situation in Iraq and across
the world, in my judgment, generally speaking and not of
interest to this panel, is that the world is getting worse
quickly and that there will be results from that, and that you
go with something with which you can nail down somebody who
would do substantial damage to the country through a dirty bomb
or something of that sort, but you don't let it be permanent.
You say, let's come back and look at it in 4 years, just as we
have done on the original parts of the PATRIOT Act. What is
wrong with that?
Mr. Onek. Senator, I was originally skeptical--I have to
admit--of the sunsets, but in retrospect they were brilliant.
They have worked. I think I cited to this Committee--but if I
didn't, I think it's highly relevant--that the FBI's own
internal memos on the PATRIOT Act talk about the fact that the
sunsets are there, that these authorities will be subject to
scrutiny, and therefore the FBI general counsel's office
advised the field, be careful how you use these authorities
because you're going to be subject to that sunset scrutiny.
Now, if we remove the sunsets entirely, where do the
countervailing checks and balances come from? I would suggest
that they should come from meaningful judicial review before
the fact in all but emergency cases. I think the after-the-fact
review is limited, as Ms. Caproni recognized. But if we remove
the sunsets entirely, such as on Lone Wolf, which hasn't even
been in effect for 6 months now, and on some of these other
provisions that we may not be sure of, then where does the
constraint come from?
Chairman Roberts. If I might, I think some of that review
comes from the Congress. As Chairman of the Committee, and as
Vice Chairman of the Committee, I know that both of us feel
very strongly, as do all members of the Committee, if it were a
sunset of 4 years that means that we would have reviewed it
eight times if it's on the 6-month basis; if it were more
frequent than that, that would be the case.
And let me assure everyone here that while much of this is
closed because of the classified nature of the operations, we
do take this very, very seriously. I don't mean that you
implied anything otherwise, but I did want to point out that
this doesn't happen in a vacuum, that we do take it very
seriously, we do review it very seriously, and I interrupted
somebody.
Yes, Mr. Onek.
Mr. Onek. Senator, we are in a new world, but as we just
heard from the FBI spokesperson, all they've said is there may
be emergency situations. So if that's the case, then I don't
see why the Committee should do more than create some sort of
new emergency provision. The ideal one, from our standpoint,
would be a new emergency provision under FISA, just as you
already have under FISA for searches and for wiretaps. Why do
they need the total package--administrative subpoenas for
everything when the only reason they really cite to is an
emergency.
So, give them that, and if they feel somehow that that's
not enough, or the emergency provision that the Congress writes
is inadequate, they, of course, can come back and tell us. But
they have not given any justification here or anywhere else for
the broad sweeping power that they ask for.
The 9/11 Commission, which was certainly concerned with
security, as are we all, said when the government asks for a
new authority, it has to justify why it needs it. And the most
we have heard here today is that there may be some emergency
situations like the hotel situation. Fine, let's deal with that
situation, but they're going way, way beyond it. They're
asking--remember, what they are asking for is the ability to
circumvent Section 215 altogether.
The Congress spent a lot of time on that provision in the
PATRIOT Act. But the proposed legislation will do away with it.
Why would anybody ever have to use Section 215 for anything,
whether it's a library record, a medical record, if they can
just issue a subpoena?
You're throwing away Section 215 of the PATRIOT Act. Why?
The witness was right here. The most she could say was, ``Gee,
we sometimes have emergencies.'' I don't want to make light of
that because obviously one emergency can obviously mean saving
thousands of lives, so let's have an emergency exception. But
why have this general, sweeping legislation way beyond anything
that the government has ever seen before?
Don't kid yourself. Mr. Collins says, ``Gee, there's broad
authority under child porn.'' Well, yes, but it's about child
porn only. There's only a narrow set of records you can get.
The FBI, when it's investigating foreign intelligence, can
potentially get every record about everything. And, of course,
there's secrecy here that doesn't exist in these other
situations. Why do you want to go down that road? It doesn't
make any sense. What makes sense, if there is any emergency
need, is an emergency exception, and as Jim Dempsey has pointed
out, there are several models. There are emergency exceptions
in Title III and in FISA, and there may be other models you can
use. Sit down and work that out.
But there's no justification for something beyond an
emergency provision. I just don't see it.
Vice Chairman Rockefeller. I hear what you're saying, all
of you, and I will need to decide what makes sense to me. Thank
you.
Chairman Roberts. Mr. Kris, I think you have something to
say.
Mr. Kris. Yes, I guess I just wanted to sort of follow up.
I was struck in listening to the testimony that both Mr.
Dempsey and Mr. Onek both favor ex-ante judicial review over
ex-post in a motion to quash.
And I don't speak for the government any longer, but if I
were the government, I would happily trade motions to quash,
particularly motions to quash filed in the Foreign Intelligence
Surveillance Court, in exchange for a requirement for ex-ante
judicial review before a magistrate, particularly if we want to
spread the authority out into the field with an emergency
exception.
I don't know if DOJ would make that trade, but once we get
into the horse trading part of legislative deliberations it
seems to be that that's a good bargain for the government, and
I'm interested in the fact that the sort of civil libertarians
are more focused on and think there is more value in ex-ante
than ex-post judicial review.
Chairman Roberts. Yes, Mr. Collins.
Mr. Collins. Let me make one brief comment. The existing
HIPAA and child porn administrative subpoena provision doesn't
have a sunset and isn't limited to emergencies. If it were a
choice between those two, I would probably lean in favor of a
sunset over an emergency, because at least the sunset allows
you to see it in operation and then make the informed choice at
the end in light of the data actually received.
Because at that point you may have the same reaction that
Mr. Dempsey had to the child porn, which is that, well, that
hasn't turned out to be a problem because they actually look
only at a narrow set of records. You could make that judgment
rather than speculate about it.
Mr. Dempsey. Why not both? Why not emergency only and
sunset? A sunset would certainly be better than no sunset, but
when there's no justification for going beyond emergency, I
think it would be extraordinary for this Committee to do that,
truly extraordinary, sunset or not.
Chairman Roberts. I'm just having a little trouble
subscribing to the notion that if you have something that would
be an infrequent use of the constitutional investigative tool,
that that means it should not be provided. Nor do I think, at
least at this juncture, that we shouldn't provide or extend
authority because another tool may be used less.
I don't know. Maybe it's because every week in this place,
in the hallowed halls of Congress, we find ourselves in the
park or someplace, the train station, some other area allegedly
that is safe, and I think most people are getting a little
tired of it, and I know my staff is and I know their parents
are back in Kansas.
Maybe that's not analogous to the statements that have been
made, but it just seems to me that we need more tools, not
less, when it comes to terrorism and espionage, and by saying
that, don't misunderstand me. I appreciate all of your
suggestions, more especially in regards to privacy and civil
rights.
Mr. Dempsey, I was a bit struck, although it's not being
fair because I was in the back and I heard you--I wasn't here
but I was here; I was sort of in-camera, so to speak. But I
think you asserted that the concept of relevance has no meaning
in a terrorism investigation. What does that mean?
Mr. Dempsey. Well, Senator, look at Section 215 of the
PATRIOT Act, the business records provision, or Section 214.
They talk about investigations ``to protect against''
international terrorism--not investigations of international
terrorism, not investigations of terrorist activities, but
investigations ``to protect against'' international terrorism.
Think about an investigation to protect against tax fraud
or an investigation to protect against bank robbery. How broad
would that be? In the terrorism area, the intelligence area,
the standard is foreign power and agent of a foreign power,
which applies to organizations that engage in legal as well as
illegal activity, and the scope of those investigations can
encompass legal activity. In the case of non-U.S. persons,
those investigations can be predicated solely on the basis of
legal activity.
So, in an investigation to protect against international
terrorism, I think the agent may think he knows what he's
doing, but I think there should be some factual premise for
that. The reason I have a problem with Section 215 is that it
involves a judge, but the government comes in and says this
information is relevant to an investigation to protect against
international terrorism. They don't have to say which
investigation, they don't have to say who they are looking for,
they don't have to provide any factual evidence.
And the statute says the judge ``shall'' issue the order,
as requested or modified. He can't even ask, tell me where this
is going, why do you need these particular records? I agree
with you entirely, Mr. Chairman, and with the Vice Chairman as
well, the government needs access to information to prevent
terrorism. But we know people under pressure--and absolutely
the FBI and the other homeland security and intelligence
agencies are under pressure--people under pressure cut corners.
They do the easy thing rather than the hard thing. They go off
on false tangents.
I don't think that it's incompatible with our national
security to have checks and balances. I don't think that we're
only talking here about privacy or civil liberties, although
definitely we are. I think we're also talking about guidance,
focus, effectiveness, ensuring that investigations are going
somewhere, because the threats are pouring in every day, as you
suggested--fleeing the Capitol here in response to what turned
out to be in two cases false alarms.
There are a lot of false alarms out there and the agencies
are drowning in information. They need more focus, not less.
They need more standards and guidelines, not fewer. Sure, give
them the tools, but make sure those tools are subject to
controls.
And this Committee takes very seriously its oversight role,
but given all the rest that this Committee has to deal with and
that the members of this Committee have to deal with, it's very
hard to look at those individual FISA applications. I don't
know, I would hesitate to wonder how many people here have
actually read a pen register/trap and trace FISA application.
There are thousands of them. There's a thousand FISA orders.
So, Committee is important. You know, Germany has a purely
parliamentary approach to the approval of national security
wiretaps. But that's not the route we've chosen to go here.
We've chosen to combine judicial oversight. The U.K. has, of
course, just ministerial, AG-type approval, but we've chosen to
go with both judicial approval and with legislative and
executive oversight based upon our system of checks and
balances. And I think that should apply throughout, including
to the mail covers.
Chairman Roberts. I think I've opened up Pandora's Box
here.
Mr. Kris.
Mr. Kris. Let me just make a very brief and pretty narrow
technical response to that. It's true that under section 1861
of FISA you can get records and tangible things if you certify
that they're sought for an investigation against terrorism.
What I'm about to say, I don't know if it will make people
feel better or worse, but if you compare that to the standards
that govern a routine criminal grand jury investigation, I
don't think they're very different. The Supreme Court has held
in a case called The United States against R. Enterprises that
a grand jury can issue a subpoena, which means effectively,
that a grand jury, through an Assistant U.S. Attorney, can
issue a subpoena to investigate even rank hearsay and gossip
suggesting the possibility of a crime or even just to satisfy
itself that no crime is being committed at all.
And the standards for trying to quash a grand jury subpoena
are extremely difficult to meet. So, again, I don't know if
that makes you feel better or worse, but I do think that
standard in FISA is not all that different conceptually from
the standard that governs a grand jury investigation. Those
standards have to be low, because the acquisition of records
occurs very early in an investigation when the government
doesn't have all of the information that it has at the end.
Chairman Roberts. Well, I want to thank all of you members
for your testimony. I think it's been very helpful and we will
consider all of your suggestions and comments as we continue
the markup of this legislation. As I've indicated before, this
is an open process in which all members concerned will be
seriously considered.
I would just say that I would hope that after the many
incidents that we have seen happen not only in the United
States but also throughout the world, that we do have an
international problem and that we do want to stop terrorism
before it counts, to detect and deter it as opposed to getting
into the tragedy of consequence management.
I don't think it's a good idea to go back and to try to
investigate it as a crime, and I don't mean that to perjure
anything that anybody has said here in regard to this panel. I
think you've offered some very fine advice and suggestions and
I thank you for coming.
And since I'm the only person here that you would be
testifying to, perhaps it's a good time to say the Committee
stands adjourned.
[Whereupon, at 11:47 a.m., the Committee adjourned.]
.