NATIONAL SECURITY LETTERS REFORM ACT
OF 2007
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 3189
__________
APRIL 15, 2008
__________
Serial No. 110-96
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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APRIL 15, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 3
WITNESSES
Mr. Glenn A. Fine, Inspector General, Office of the Inspector
General, U.S. Department of Justice
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Ms. Valerie E. Caproni, General Counsel, Office of the General
Counsel, Federal Bureau of Investigation
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Jameel Jaffer, Director, American Civil Liberties Union's
National Security Project
Oral Testimony................................................. 30
Prepared Statement............................................. 32
Mr. Bruce Fein, Chairman of the American Freedon Agenda, former
Assistant Deputy Attorney General, U.S. Department of Justice
Oral Testimony................................................. 44
Prepared Statement............................................. 45
Mr. Michael J. Woods, former Chief, FBI National Security Law
Unit
Oral Testimony................................................. 47
Prepared Statement............................................. 49
Mr. David Kris, former Associate Deputy Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 91
Prepared Statement............................................. 92
APPENDIX
Material Submitted for the Hearing Record
H.R. 3189, the ``National Security Letters Reform Act of 2007''.. 132
NATIONAL SECURITY LETTERS REFORM ACT OF 2007
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TUESDAY, APRIL 15, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:12 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Wasserman
Schultz, Ellison, Scott, Watt, and Franks.
Staff present: David Lachmann, Subcommittee Chief of Staff;
Robert Reed, Majority Counsel; Carole Angel, Majority
Legislative Assistant; Caroline Mays, Majority Professional
Staff Member; Paul B. Taylor, Minority Counsel; and Jennifer
Burba, Minority Staff Assistant.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order.
Welcome, everyone.
Without objection, the Chair is authorized to declare a
recess, which the Chair will do when they call votes on the
floor.
The Chair will recognize himself now for 5 minutes for an
opening statement.
Today's hearing focuses on the law governing National
Security Letters, the widespread abuses of the authority given
to the FBI to issue NSLs is documented in two reports by the
Department of Justice's Inspector General, and proposed
legislation to address these threats to the liberty and privacy
of law-abiding Americans.
A National Security Letter can be issued to a third party,
such as a health insurance company or an Internet service
provider, ordering it to reveal all the information in its
possession about you and your communications, your transactions
or the books you read. The third party is prohibited from
telling you or anyone else, aside from the attorney or those
processing the information, about the order.
So, you cannot object to the NSL in court, as you could to
a subpoena, because you do not know about it. And the third
party may have no interest in going to court to protect your
rights.
In fact, we invited many of these third parties here today
to testify, but they were gagged from disclosing that they had
received NSL requests and were chilled from engaging in this
important debate, which directly impacts both them and the
general public.
When we debated the reauthorization of the PATRIOT Act a
few years ago, Congress and the public was not yet aware of the
extent of the abuses brought about by the FBI's overuse of NSLs
outside the bounds of their proper authority.
Indeed, even the changes made to the NSL provisions by the
2005 PATRIOT Act Reauthorization Act were, for all practical
purposes, meaningless. For example, the court is authorized by
the 2005 amendment to modify or set aside the gag order, if it
finds there is no reason to believe that disclosure would
endanger national security, diplomatic relations or anyone's
life or safety.
But the court must accept the government's assertion of
such harm as conclusive and cannot use its own judgment as to
whether, in fact, such harm would result. Since the
government's assertion is conclusive, there is no room for the
court at all, and the provision is meaningless.
In addition, the burden remains on the recipient of the NSL
to challenge the order. This would seem to violate the first
amendment's heavy burden of proof against prior restraints of
publication.
When these provisions were first debated, some of us had
predicted that the unrestricted authority of the FBI to issue
NSLs would be abused. Unfortunately, these fears have been
realized. The I.G.'s audit (INAUDIBLE) the NSLs have been used
by the FBI to collect and retain private information about
American citizens who are not reasonably suspected of being
involved in terrorism.
That is why I have introduced, along with a number of
others, the bipartisan National Security Letters Reform Act of
2007. This legislation will protect Americans against
unnecessary and unsupported intrusions into their private lives
and, more importantly, should prevent abuse of power by the
government. We need to fix the law to bring it in line with the
Constitution, to enhance checks and balances, and in doing so,
to better protect our national security.
Already, courts have found parts of the NSL authority to be
too broad and unconstitutional. The provisions that state the
NSL recipients are forbidden from disclosing the demand to the
targeted individual or to almost anyone else but their
attorney, has already been struck down as a prior restraint,
repugnant to the first amendment. Another Federal court found
the NSL authority to be unconstitutional, because it violates
the fourth amendment's protection against unreasonable searches
and seizures.
The bipartisan bill that I am the lead co-sponsor of would
lawfully authorize intelligence agencies to use NSLs with
proper safeguards.
Specifically, it:
Would restore the standard that the records sought pertain
to a suspected terrorist or spy;
Would give an NSL recipient the right to challenge the
letter and its non-disclosure requirement--a real right to
challenge, not one in which the government's assertion is
dispositive--to place a time limit on the gag order and allow
for court-approved extensions of that time limit;
Would provide a course of action to any person aggrieved by
the illegal provision of records pertaining to that person as
the result of an NSL issued contrary to law, or of an NSL
issued, based on the certification made without factual
foundation;
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;
Would give the target an opportunity to receive legal
counsel and challenge the use of those records in such a
subsequent proceeding;
Would provide for minimization procedures to ensure that
information obtained pursuant to an NSL regarding persons that
are no longer of interest in an authorized investigation is
destroyed; and
Would address the voluntary disclosure of customer
communications or records that had been obtained through so-
called ``exigent'' letters.
I do not think it is too much to ask the FBI to follow the
Constitution and the rule of law while it goes about its job of
protecting us. The abuses of power by the DOJ and the FBI show
that legislative fixes are needed to check the over-broad and
unchecked investigatory power.
By requiring that NSLs be issued only if the FBI has made a
factual, individualized showing that the directive sought to
obtain to a suspected terrorist or spy, we will help keep our
law enforcement focused on real threats.
The time for this over-broad power to be curtailed is now,
and I am hopeful that we will be successful. The abuses by the
DOJ and the FBI have proven that these legislative fixes are a
necessary check on the investigatory power.
Just today, the Electronic Frontier Foundation, EFF,
disclosed that documents obtained by the EFF through a Freedom
of Information Act request showed a misuse of the FBI's
National Security Letter authority, issued at the direction of
FBI headquarters went unreported to the Intelligence Oversight
Board for almost 3 years.
Self-policing has proven time and again to be both
undemocratic and ineffective. It is not enough to mandate that
the FBI fix internal management problems and record keeping,
because the statute itself authorizes the unchecked collection
of information of innocent Americans. Congress should act now
to fix the underlying statutes authorizing this
unconstitutional and unchecked authority, which has led to the
abuses revealed in the I.G. report, and to hold those
responsible for these violations accountable.
We must have intelligence gathering. We need our safety.
But we must do our intelligence gathering under constitutional
and legal checks to protect our privacy and our liberties, as
well as our safety.
I want to welcome our witnesses. I look forward to their
testimony.
I yield back the balance of my time, and I now recognize
the distinguished Ranking minority Member of the Committee, the
gentleman from Arizona, Mr. Franks, for 5 minutes for an
opening statement.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, the bill that we address today at this
hearing, H.R. 3189, would, in my sincere judgment, render
National Security Letters as ineffective as they were prior to
9/11, and would further squelch the initiation of vital
terrorism investigations. By changing the standards for such
terrorism investigations, the bill would preclude many
investigations that would otherwise be able to go forward, and
would do so in a manner directly contrary to the findings of
two recent Inspector General's reports and the 9/11 Commission,
which counseled against returning to the investigative model
that failed before the 9/11 attack.
H.R. 3189 would also provide the subjects of terrorism
investigations with more protections than they enjoy by even
ordinary domestic American criminals under the clear Supreme
Court precedents, such as the United States v. Miller, that
hold that no fourth amendment protections apply to business
records handed over to a third party.
The FBI has testified as follows: ``National security
letters generally permit us to obtain the same sort of
documents from third party businesses that prosecutors and
agents obtain in a criminal investigation with grand jury
subpoenas. National security letters have been instrumental in
breaking up cells like the Lackawanna Six and the Northern
Virginia Jihad, through the use of NSLs, the FBI has traced
sources of terrorist funding, established telephone linkages
that resulted in further investigations and arrests, and
arrests of suspicious associates with deadly weapons and
explosives. NSLs also allow the FBI to link terrorists together
financially and pinpoint cells and operatives by following the
money.''
According to the Inspector General's first report on NSLs,
issued in March 2007, NSLs were not an effective means of
preventing terrorist attacks before the 9/11 attacks, because
``prior to the PATRIOT Act, agents could seek National Security
Letters for telephone and electronic communication
transactional records from telephone companies and Internet
service providers, records from financial institutions and
information from credit bureaus, only upon demonstrating
`specific and articulable facts' giving reason to believe that
the subject was `an agent of a foreign power.' FBI agents told
us that this prediction standard limited the utility of NSLs as
an investigative tool. FBI field and headquarters personnel who
have worked with National Security Letters before and after the
PATRIOT Act believe that their use and effectiveness has
significantly increased after the PATRIOT Act was enacted.''
FBI headquarters and field personnel told the Inspector
General that they found National Security Letters to be
indispensable for ``our bread and butter.''
Mr. Chairman, H.R. 3189 would dramatically stem the flow of
information throughout the investigative process by effectively
precluding their availability before the very first steps can
be taken down an investigatory trail.
On the video screens right now, there is a diagram from the
Inspector General's report that shows all of us the
investigative process that would be halted, were National
Security Letters' authorizations limited, from requests for
FISA warrants to the general intelligence reports to be shared
with other agencies.
The Inspector General report that information derived from
National Security Letters ``most often is used for intelligence
purposes rather than for criminal investigation.'' Yet H.R.
3189 would impose the failed model based on criminal
prosecutions alone that failed to prevent the 9/11 attacks.
As the 9/11 Commission itself concluded, ``The law
enforcement process is concerned with proving the guilt of
persons apprehended and charged. It was not designed to ask if
the events might be harbingers of worse things to come. Nor did
it allow for aggregating and analyzing facts to see if they
could provide clues to terrorist tactics more generally.''
Mr. Chairman, the Inspector General's report issued in
March 2008 concluded that, while some irregularities remained
in the administration of National Security Letters, the FBI had
made great progress in implementing procedures that will
correct errors before they are made. So, oversight has been
successful.
And I just want to add, it is commonplace to hear critics
of national security programs to quote Benjamin Franklin as
saying, ``If we surrender our liberties in the name of
security, we shall have neither.''
Mr. Chairman, those are not Mr. Franklin's actual words.
Accurately quoted, Mr. Franklin's words are much more
revealing. Ben Franklin wrote these words. He said, ``Those who
would give up essential liberty to purchase a little temporary
safety, deserve neither liberty nor safety.''
H.R. 3189 would protect no essential liberties, and it
would significantly weaken national security. And I am hoping,
Mr. Chairman, that along with several other bills that have
been before this Committee that seem to protect terrorists more
than American citizens, that we can somehow get past this.
And with that, I yield back.
Mr. Nadler. The gentleman yields back, and I thank the
gentleman.
Without objection, other Members' opening statements will
be included in the record.
We have two distinguished panels of witnesses today.
Our first witness is Glenn Fine, the Inspector General for
the Department of Justice, since December 15, 2000. Mr. Fine
has worked at the Department of Justice of the Inspector
General since--or the Inspector General of the Department of
Justice--since January 1995. Initially, he was special counsel
to the I.G. In 1996, he became the director of the Office of
Inspector General, Special Investigations and Review Unit.
Before joining the Office of Inspector General, Mr. Fine
was an attorney specializing in labor and employment law at a
law firm in Washington, D.C. Prior to that, from 1986 to 1989,
Mr. Fine served as assistant U.S. attorney in the Washington,
D.C., U.S. Attorney's Office.
He holds an A.B. from Harvard College, a B.A. and M.A.
degrees from Oxford University--I think the first person I have
seen with two B.A. degrees, an A.B. and a B.A.--and a law
degree from Harvard Law School.
Valerie Caproni has served as the general counsel for the
Federal Bureau of Investigation since August of 2003. She holds
a B.A. from Newcomb College at Tulane University and a law
degree from the University of Georgia.
Ms. Caproni clerked for the Honorable Phyllis Kravitch,
United States Court of Appeals, 11th Circuit; was an assistant
U.S. attorney in the Criminal Division of the U.S. Attorney's
Office, Eastern District of New York; and a general counsel to
the New York State Urban Development Corporation--a very
challenging job.
She served as Chief of Special Prosecutions and Chief of
the Organized Crime and Racketeering Section before becoming
Chief of the Criminal Division in 1994. As chief of the
Criminal Division, she supervised approximately 100 assistant
U.S. attorneys.
Ms. Caproni remained chief of the Criminal Division until
she departed in 1998, to become the regional director of the
Pacific regional office of the Securities and Exchange
Commission.
I would note with some regret that we did not receive Ms.
Caproni's testimony prior to the hearing. We do try to show
some flexibility to our witnesses in recognition of the fact
that their assistance to the Committee is work--but the rule
that we should get the testimony in advance exists for a
reason. Members do read the testimony ahead of time to prepare
for these hearings. It is especially important, because the
witnesses make only a 5-minute statement summarizing their
written testimony.
This is not a new issue for the Bureau or for the
Administration. The Bureau has commented on the I.G.'s findings
and provided testimony in the past. I am at a loss to
understand why the Bureau was unable to provide the testimony
in advance.
In view of the importance of the issue and the importance
of Ms. Caproni's testimony, I will allow her to proceed. But I
must say that the Administration has too often refused to
provide this Committee with answers to appropriate questions,
documents necessary to our work, and in many instances refused
to provide a legal basis for doing so.
I do not take this conduct lightly. I hope that Ms. Caproni
will take back to the Bureau and to the Administration the
Committee's frustration with the seeming inability or
unwillingness to cooperate in our work.
The rights of all Americans at stake in this matter are
great, and I do not appreciate the investigation being treated
in a cavalier manner.
Without objection, the written statements of the witnesses
will be made part of the record in their entirety.
We would ask each of you to summarize your testimony in 5
minutes or less. To help you keep time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow, and then to red when the 5 minutes are
up.
Before we begin, it is customary for the Committee to swear
in its witnesses.
If you could please stand and raise your right hand to take
the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct, to the
best of your knowledge, information and belief?
Thank you.
Let the record reflect that the witnesses answered in the
affirmative, and you may be seated.
I will now recognize Mr. Fine for 5 minutes.
TESTIMONY OF GLENN A. FINE, INSPECTOR GENERAL, OFFICE OF THE
INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Fine. Mr. Chairman, Ranking Member Franks and Members
of the Subcommittee, thank you for inviting me to testify about
the Office of the Inspector General's recent reports on the
FBI's use of National Security Letters and Section 215 orders.
Over the last 2 years, the OIG has issued two sets of
reports on these subjects. Our first two reports, issued in
March 2007, found widespread and serious misuse of National
Security Letters. Last month, as required by the PATRIOT
Reauthorization Act, we completed two follow-up reports, which
assessed the use of National Security Letters in 2006, the
FBI's response to our first report and the FBI's use of Section
215 orders.
First, however, I would like to thank the OIG staff who
worked on these reports for their outstanding efforts. The
three leaders of the team--Roslyn Mazer, Mara Lee, and Michael
Gulledge--are with me here today, and I would like to thank
them for their work.
My written statement details the findings of our two recent
reports. In my oral statement today, I will briefly highlight
some of these findings.
First, our recent report on National Security Letters,
NSLs, concluded that the FBI and the department have made
significant progress in implementing the recommendations
contained in our first report and in adopting other corrective
actions. We found that the FBI has devoted substantial time,
energy and resources toward seeking to ensure that its field
managers and agents understand the seriousness of the FBI's
shortcomings and their responsibility for correcting these
deficiencies.
Among the actions that the FBI has taken include:
developing a new data system to facilitate issuance and
tracking of NSLs and to improve the accuracy of required data
in congressional and public reports; issuing numerous guidance
memoranda and providing mandatory training to FBI employees on
the proper use of NSLs; and prohibiting the use of exigent
letters.
The FBI also has created a new Office of Integrity and
Compliance, modeled after private sector compliance programs.
In addition, the department's National Security Division is
conducting reviews to examine whether the FBI is using various
intelligence techniques, including NSLs, in accordance with
applicable laws, guidelines and policies.
Yet, while the FBI and the department have taken positive
steps, we also concluded that additional work remains to be
done. For example, a department working group was directed to
examine how NSL-derived information is used and retained by the
FBI. We concluded that the working group's initial proposal did
not adequately address measures to label or tag NSL-derived
information or to minimize the retention and dissemination of
such information.
Our report also notes that the FBI still needs to address
or fully implement several other key recommendations, such as
reevaluating the reporting structure for the chief division
counsel in each FBI field office.
As required by the PATRIOT Reauthorization Act, our recent
report also reviewed the FBI's use of NSLs in 2006, which, it
is important to note, is a period before our first NSL report
was issued in 2007.
Our recent report found a continued upward trend in the use
of NSLs, with 49,000 requests in 2006--a 4.7 percent increase
from the previous year. The percentage of NSL requests that
related to investigations of U.S. persons also continued to
increase, to approximately 60 percent.
We also examined the FBI's own reviews of field case files,
which found a rate of NSL violations, 9.4 percent, that was
even higher than what we found, 7.5 percent.
The number of possible intelligence violations identified
by the field reviews was 640, which is a substantial number.
Moreover, in 2006, the number of violations reported by FBI
field offices was significantly higher than the number of
reported violations in prior years.
Our recent review also found that 97 percent of the NSLs in
2006 imposed non-disclosure and confidentiality requirements.
It is also important to note that the most serious
violations involving the use of NSL authorities in 2006 relate
to the FBI's use of so-called exigent letters, a practice by
which the FBI improperly obtained telephone toll billing
records from three communication service providers without
first issuing NSLs.
The OIG is in the process of completing a separate
investigation examining the use of these exigent letters, as
well as the use of ``blanket NSLs'' and other improper requests
for telephone records. Among other things, our upcoming report
will assess the accountability of FBI personnel for these
practices.
As to our follow-up report on Section 215 orders, we found
that FBI agents continued to encounter processing delays for
obtaining these orders. The average processing time for such
orders was 147 days.
We did not identify any illegal use of Section 215 orders
in 2006. However, our report discusses one case in which the
FISA Court twice refused to authorize a Section 215 order,
because of concerns that the investigation was based on
protected first amendment activity. However, we found that the
FBI subsequently issued NSLs to obtain information about the
subject based on the same factual predicate.
In conclusion, we believe the FBI has evidenced a
commitment to correcting the serious problems we found in our
first report on National Security Letters and has made
significant progress in addressing the need to improve
compliance in the FBI's use of NSLs. However, the FBI and the
department's corrective measures are not yet fully implemented,
and we believe it is too early to determine whether these
measures will fully eliminate the problems we found with the
use of these authorities.
That concludes my prepared statement, and I would be
pleased to answer any questions.
[The prepared statement of Mr. Fine follows:]
Prepared Statement of Glenn A. Fine
Mr. Chairman, Ranking Member Franks, and Subcommittee Members:
Thank you for inviting me to testify about the Office of the
Inspector General's (OIG) recent reports on the Federal Bureau of
Investigation's (FBI) use of national security letters (NSL) and
Section 215 orders to obtain business records.
The Patriot Reauthorization Act of 2005 (Reauthorization Act)
directed the OIG to review the FBI's use of NSLs and Section 215 orders
in two separate time periods. The OIG's first reports, issued in March
2007, examined the FBI's use of NSLs from 2003 through 2005, and its
use of 215 orders from 2002 through 2005.
As required by the Reauthorization Act, last month the OIG issued
two follow-up reports that examined the use of these authorities in
2006. In addition, our follow-up report on national security letters
examined the measures taken or proposed by the FBI and the Department
of Justice (Department) to address the serious misuse of national
security letters that our first NSL report detailed.
In this written statement, I summarize the findings of the two
reports that we issued last month. I first discuss the findings
regarding the FBI's and the Department's corrective actions to address
the serious deficiencies we described in last year's NSL report. I then
summarize the findings regarding the FBI's use of NSLs in 2006.
Finally, I summarize our report on the FBI's use of Section 215 orders
in 2006.
i. national security letters
To conduct the follow-up review on the FBI's use of NSLs that we
issued last month, the OIG interviewed FBI personnel at Headquarters
and in FBI field offices, and Department personnel in the National
Security Division and the Office of the Chief Privacy and Civil
Liberties Officer. We analyzed more than 18,000 documents, including
NSL-related guidance and training materials developed by the FBI since
our first NSL report. OIG personnel also observed the FBI's new data
system designed to manage and track NSLs, and they visited three FBI
field offices to assess the accuracy of the FBI's review of NSLs issued
by those offices. In particular, the OIG re-examined case files that
had been reviewed by FBI inspectors and compared our findings to the
FBI's findings. We also analyzed data in the FBI's NSL tracking
database and examined the Department's annual public reports and the
Department's semiannual classified reports to Congress to evaluate NSL
requests in 2006 and trends in NSL usage. The following sections
summarize the findings in our follow-up report based on this work.
A. Corrective Actions Implemented or Proposed Since our March 2007 NSL
Report
Our review concluded that the FBI and the Department have made
significant progress in implementing the recommendations contained in
our first NSL report and in adopting other corrective actions to
address the serious problems we identified in the FBI's use of NSLs. We
also found that the FBI has devoted substantial time, energy, and
resources toward ensuring that its field managers and agents understand
the seriousness of the FBI's shortcomings in its use of NSLs and their
responsibility for correcting these deficiencies.
Our interviews of senior FBI officials found that the FBI's
leadership is committed to correcting the serious deficiencies in the
FBI's use of NSLs identified in our first report. In addition, the
FBI's leadership has attempted to reinforce throughout the FBI the
necessity for adhering to the rules governing the use of NSL
authorities.
We determined that the FBI has taken a variety of actions to
address the deficiencies in its use and oversight of NSLs since
issuance of our March 2007 report. The actions include:
Developing a new NSL data system to facilitate
issuance and tracking of NSLs and improve the accuracy of data
on NSL usage in required congressional and public reports;
Issuing numerous NSL policies and guidance memoranda
and providing mandatory training to FBI employees on the proper
use of NSLs; and
Prohibiting the use of exigent letters.
The FBI has also created a new Office of Integrity and Compliance
(OIC), modeled after private sector compliance programs, to seek to
ensure that national security investigations and other FBI activities
are conducted in a manner consistent with appropriate laws, guidelines,
regulations, and policies. We believe this office can perform a
valuable function by providing a process for identifying compliance
requirements and risks, assessing existing FBI control mechanisms, and
developing and implementing better controls to ensure proper use of
NSLs. However, we recommend that the FBI consider providing the OIC
with a larger permanent staffing level so that the OIC can develop the
skills, knowledge, and independence to lead or directly carry out the
critical elements of this new compliance program.
Our report also noted that the Department's National Security
Division has implemented additional measures to promote better
compliance with NSL authorities and to address other issues raised by
our first report. For example, in 2007 the National Security Division
began reviews to examine whether the FBI is using various intelligence
techniques--including NSLs--in accordance with applicable laws,
guidelines, and policies.
Yet, while the FBI and the Department have taken positive steps to
address the issues that contributed to the serious misuse of NSL
authorities we described in our March 2007 report, we concluded that
additional work remains to be done. For example, in response to the
recommendations in our 2007 NSL report, the Department's Office of the
Chief Privacy and Civil Liberties Officer convened a working group to
examine how NSL-derived information is used and retained by the FBI,
with special emphasis on the protection of privacy interests. Our
assessment of the working group's initial proposal that was completed
in August 2007 but subsequently withdrawn is that the proposal did not
adequately address measures to label or tag NSL-derived information or
to minimize the retention and dissemination of such information. In our
recent report, we recommended that the working group consider further
whether and how to provide additional privacy safeguards and measures
for minimizing the retention of NSL-derived information.
In addition, our report notes that the FBI still needs to address
or fully implement several of the key recommendations in our March 2007
report. For example, we recommended that the FBI address our concern
about the reporting chain of Chief Division Counsels (CDCs), the chief
lawyers in each FBI field office. Based on our concerns that some CDCs
were reluctant to provide an independent legal review of NSLs for fear
of second-guessing or antagonizing the Special Agents in Charge to whom
they report, our recommendation was designed to ensure that CDCs
provide close and independent review of NSL requests. While we
recognize that the reporting chain of CDCs is an issue that affects
many aspects of the CDCs' role and not just their approval of NSLs, we
believe the FBI should address and resolve this important issue in a
timely manner.
Our report also analyzed three NSL reviews conducted by the FBI
following release of our first NSL report in March 2007. One of the FBI
reviews examined the use of NSLs in a random sample of 10 percent of
counterterrorism, counterintelligence, and foreign computer intrusion
cyber investigation case files active in FBI field offices between 2003
and 2006. The FBI's 10 percent review confirmed the types of
deficiencies and possible intelligence violations in the FBI's use of
NSLs that we identified in our first report. In fact, the FBI's
statistically valid sample of field case files found a rate of NSL
violations (9.43 percent) higher than what we found (7.5 percent) in
the non-statistical sample of NSLs we examined in our first report.
Moreover, when we independently examined the FBI's 10-percent field
review in detail, we determined that it did not identify all NSL-
related possible intelligence violations and therefore does not provide
a fully reliable baseline from which to measure future FBI compliance
with NSL authorities. In addition, because the FBI was unable to locate
information provided in response to a significant number of NSLs chosen
for review in its sample, the results of the FBI field review likely
understated the rate of possible intelligence violations.
The FBI's reviews also confirmed two of the most significant
findings in our first NSL report. First, the reviews confirmed that the
FBI's use of NSLs resulted in many intelligence violations. For
example, the FBI's 10 percent review of field office NSLs found at
least 640 potential intelligence violations from 2003 through 2006.
Extrapolating the results of the FBI's 10 percent statistical sample to
the full number of NSLs means that the total number of possible
intelligence violations among all NSLs issued over the 4-year period
could be as high as 6,400.
Second, the FBI's reviews confirmed that the FBI's internal
policies requiring reports to FBI Headquarters of possible NSL-related
intelligence violations had not been effective. For example, less than
2 percent of the possible intelligence violations identified by FBI
inspectors in the 2007 field review previously had been reported to FBI
Headquarters as required.
In short, our review of the FBI's corrective actions concluded that
the FBI and the Department have evidenced a commitment to correcting
the serious problems we found in our first NSL report and have made
significant progress in addressing the need to improve compliance in
the FBI's use of the NSLs. However, because only 1 year has passed
since our first NSL report in March 2007, and because some measures are
not fully implemented or tested, we believe it is too early to
definitively state whether the new systems and controls developed by
the FBI and the Department will eliminate fully the problems with NSLs
that we identified. We believe the FBI must implement all of our
recommendations in our first NSL report, demonstrate sustained
commitment to the steps it has taken and committed to take to improve
compliance, implement the additional recommendations described in our
follow-up report, consider additional measures to enhance privacy
protections for NSL-derived information, and remain vigilant in holding
FBI personnel accountable for properly using and approving NSLs and for
handling responsive records appropriately.
B. Use of National Security Letters in 2006
As required by the Patriot Reauthorization Act, we also reviewed
the FBI's use of NSLs in 2006. As discussed in our report, under five
statutory provisions the FBI can use NSLs to obtain records such as
toll billing records and subscriber information from communication
service providers, transactional records from Internet service
providers, bank records from financial institutions, and full or
limited consumer credit information from credit reporting agencies. The
Patriot Act broadened the FBI's authority to use NSLs by lowering the
threshold standard for issuing NSLs, allowing FBI field office Special
Agents in Charge to sign NSLs, and permitting the FBI to use NSLs to
obtain full credit reports in international terrorism investigations.
First, it is important to note that the FBI's use of NSLs in 2006
occurred before we issued our first NSL report in March 2007, which
identified the serious deficiencies in the FBI's use of and oversight
of NSLs, and before the FBI began to implement its corrective actions.
Therefore, not surprisingly, our follow-up report on the use of NSLs in
2006 contains findings similar to our March 2007 report regarding
deficiencies in the FBI's use of NSLs.
Our review of the FBI's use of NSLs in 2006 found a continued
upward trend in the use of NSLs, with 49,425 NSL requests issued in
2006, a 4.7 percent increase from the previous year. For the 4-year
period 2003-2006, the FBI issued more than 192,000 NSL requests.
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FBI data showed that, on average, approximately one-third of all
FBI counterterrorism, counterintelligence, and cyber investigations
that were open at any time during 2006 used NSLs. Our review also found
that the percentage of NSL requests that related to investigations of
U.S. persons (as opposed to non-U.S. persons) continued to increase,
rising from about 39 percent of all NSL requests in 2003 to
approximately 60 percent of all NSL requests in 2006.
Similar to findings in our first report on the effectiveness of
NSLs, our follow-up report found that FBI personnel continued to
believe that NSLs were indispensable tools in national security
investigations in 2006. They reported that NSLs were used to identify
the financial dealing of investigative subjects, confirm the identity
of subjects, support the use of enhanced intelligence techniques, and
establish predication for the initiation of preliminary and full
counterterrorism and counterintelligence investigations.
As required by the Reauthorization Act, our review also examined
whether NSLs issued after the effective date of the Reauthorization Act
contained the required certifications to impose non-disclosure and
confidentially requirements on NSL recipients. In the random sample of
NSLs we reviewed, we found that 97 percent of the NSLs imposed non-
disclosure and confidentiality requirements, and almost all contained
the required certifications. We found that a small percentage of the
justifications for imposing this requirement were perfunctory and
conclusory, and a small number of the NSL approval memoranda failed to
comply with internal FBI policy.
We also determined that 17 NSL approval memoranda (5 percent of the
random sample) contained insufficient explanations to justify
imposition of these obligations. We also identified eight NSLs in our
sample that contained recitals about non-disclosure that were
inconsistent with the corresponding approval memoranda, signifying that
case agents, their supervisors, and Chief Division Counsels were not
careful in reviewing and approving these documents to ensure
consistency. In addition to these non-compliant NSLs that were part of
the random sample, we identified eight ``blanket'' NSLs issued by
senior Counterterrorism Division officials in 2006 that did not contain
the required certifications.
With regard to intelligence violations arising from the use of NSLs
in 2006, our report's findings were consistent with the findings in our
first report on NSL usage from 2003 through 2006 and with the results
of the FBI's 10 percent review of field office NSLs, which identified
at least 640 potential intelligence violations over the 4-year period.
In addition, in our review we determined that FBI personnel self-
reported 84 possible intelligence violations involving the use of NSLs
in 2006 to FBI Headquarters. Of these 84 possible violations, the FBI
concluded that 34 needed to be reported to the President's Intelligence
Oversight Board (IOB) in 2006. The 34 matters reported to the IOB
included errors such as issuing NSLs without proper authorization,
improper requests, and unauthorized collection of telephone or Internet
e-mail records. We found that 20 of these violations were attributable
to mistakes made by the FBI, while 14 resulted initially from mistakes
by recipients of NSLs.
We found that of the 84 possible intelligence violations identified
and reported to the FBI Office of the General Counsel in 2006, the FBI
received information it was not entitled to receive in 14 matters. In
one of the matters the FBI requested information it was not entitled to
under the applicable NSL statute. In the other 13 matters, the FBI made
proper requests but, due initially to third party errors, obtained
information it was not entitled to receive under the pertinent NSL
statutes.
We noted that the number of possible NSL-related intelligence
violations identified by FBI personnel in 2006 was significantly higher
than the number of reported violations in prior years. From 2003
through 2005, the FBI had self-identified only 26 possible intelligence
violations, of which 19 were reported to the IOB. We believe that the
increase in 2006 may be explained in large part by the attention that
our first NSL review, which was ongoing in 2006, focused on these
issues and also to increased training, guidance, and oversight by the
FBI.
Our follow-up report also noted that a large number of possible
intelligence violations were initially attributable to mistakes made by
NSL recipients. However, we believe the FBI may have compounded these
errors by not recognizing the overproductions and using or uploading
the inappropriately obtained information. The FBI Office of the General
Counsel is in the process of determining whether the FBI will report
these matters to the IOB.
It is important to note that the most serious violations involving
the use of NSL authorities in 2006 related to the FBI's use of exigent
letters. Our first NSL report generally described this practice by
which the FBI improperly obtained telephone toll billing records from
three communication service providers pursuant to more than 700 exigent
letters without first issuing NSLs. We found that these exigent letters
contained inaccurate statements, circumvented the requirements of the
Electronic Communications Privacy Act NSL statute, and violated
Attorney General Guidelines and internal FBI policy. The OIG is in the
process of completing a separate investigation examining the use of
exigent letters, as well as the use of ``blanket NSLs'' and other
improper requests for telephone records. Among other things, our
upcoming report will assess the accountability of FBI personnel for
these practices.
Our NSL report also contains 17 additional recommendations to help
improve the FBI's use and oversight of this important intelligence
tool. These include recommendations that the FBI provide additional
guidance and training for FBI agents on the proper use of NSLs and on
the review, filing, and retention of NSL-derived information; reinforce
the need for FBI agents and supervisors to determine whether there is
adequate justification for imposing non-disclosure and confidentiality
requirements on NSL recipients; regularly monitor the preparation and
handling of NSLs; and provide timely reports of possible intelligence
violations to FBI Headquarters. We also recommended that the
Department's working group consider further measures for minimizing the
retention of NSL-derived information. In its response to our report,
the FBI agreed with all of these recommendations and stated that it
would implement additional actions to address our findings.
ii. section 215 orders
As also required by the Patriot Reauthorization Act, in a second
follow-up report issued along with the NSL report the OIG examined the
FBI's use of Section 215 orders to obtain business records in 2006.
Section 215 of the Patriot Act allows the FBI to seek an order from the
FISA Court to obtain ``any tangible thing,'' including books, records,
and other items, from any business, organization, or entity, provided
the item or items are for an authorized investigation to protect
against international terrorism or clandestine intelligence activities.
Examples of the types of business records that can be obtained through
Section 215 orders include driver's license records, public
accommodations records, apartment records, and credit card records.
The OIG's first Section 215 report in March 2007 examined the FBI's
use of this authority in calendars years 2002 through 2005. Our recent
follow-up report examined the FBI's use of Section 215 authorities in
2006 and, as required by the Patriot Reauthorization Act, also assessed
the minimization procedures for business records that the Attorney
General was required to adopt in 2006.
Our follow-up review found that, similar to the findings in our
first report, the FBI and the Department's Office of Intelligence
Policy and Review (OIPR) processed FBI requests submitted to the FISA
Court for two different kinds of applications for Section 215 orders in
2006: ``pure'' Section 215 applications and ``combination'' Section 215
applications. A ``pure'' Section 215 application is a term used to
refer to a Section 215 application for any tangible item, and it is not
associated with any other FISA authority. A ``combination'' Section 215
application is a term used to refer to a Section 215 request that is
added to a FISA application for pen register/trap and trace orders,
which identify incoming and outgoing telephone numbers called on a
particular line.
In 2006, the FBI and OIPR processed 15 pure Section 215
applications and 32 combination Section 215 applications that were
formally submitted to the FISA Court. All 47 applications were approved
by the FISA Court. Six additional Section 215 applications were
withdrawn by the FBI before they were formally submitted to the FISA
Court.
The OIG's follow-up report found that FBI agents encountered
similar processing delays for Section 215 applications as those
identified in our previous report. Overall, the average processing time
for Section 215 orders in 2006 was 147 days, which was similar to the
processing time in 2005. However, the FBI and OIPR were able to
expedite certain Section 215 requests in 2006, and when the FBI
identified two emergency requests the FBI and OIPR processed both
requests quickly.
Our follow-up report did not identify any illegal use of Section
215 orders in 2006. However, we identified two instances in 2006 when
the FBI received more information than it had requested in the Section
215 orders. In one of the cases, approximately 2 months passed before
the FBI recognized it was receiving additional information that was
beyond the scope of the FISA Court order. The FBI reported this
incident to the IOB, and the additional information was sequestered
with the FISA Court.
In the other case, the FBI quickly determined that it had
inadvertently received information not authorized by the Section 215
order and isolated the records. However, the FBI subsequently concluded
that the matter was not reportable to the IOB and that the FBI should
be able to use the material as if it were ``voluntarily produced''
because the information was not statutorily protected. We disagreed
with the FBI's conclusion, and our report recommended that the FBI
develop procedures for identifying and handling information that is
produced in response to, but outside the scope of, a Section 215 order.
The Reauthorization Act also directed the OIG to identify any
``noteworthy facts or circumstances'' related to the use of Section 215
orders. Our report discussed another case in which the FISA Court twice
refused to authorize a Section 215 order based on concerns that the
investigation was based on protected First Amendment activity. The FBI
subsequently issued NSLs to obtain information about the subject based
on the same factual predicate and without a review to ensure the
investigation did not violate the subject's First Amendment rights. We
questioned the appropriateness of the FBI's actions because the NSL
statute contains the same First Amendment caveat as the Section 215
statute.
As noted throughout the report, the FBI determined that much of the
information about this and other cases described in the Section 215
report was classified and therefore had to be redacted from the public
report. However, the full classified report contains the details about
this case and other cases, and describes other uses of Section 215
authority. The full classified report has been provided to the
Department and Congress.
Finally, as directed by the Reauthorization Act, we examined the
interim minimization procedures adopted by the Department in 2006 for
Section 215 orders. Such procedures are intended to minimize the
retention and prohibit the dissemination of non-publicly available
information about U.S. persons. We concluded that the interim
minimization procedures adopted in September 2006 do not provide
specific guidance for minimization procedures that the Reauthorization
Act appears to contemplate. Consequently, our report recommends that
the Department develop specific minimization procedures relating to
Section 215 orders.
iii. conclusion
In sum, we believe that the FBI has devoted significant time,
energy, and resources to ensuring that its employees understand the
seriousness of the FBI's shortcomings with respect to use of national
security letters and the FBI's responsibility for correcting these
deficiencies. However, the FBI's and the Department's corrective
measures are not yet fully implemented, and it is too early to
determine whether these measures will eliminate the problems we found
with use of these authorities. Ensuring full compliance with the proper
use of these authorities will require continual attention, vigilance,
and reinforcement by the FBI, the Department, the OIG, and the
Congress.
That concludes my prepared statement. I would be pleased to answer
any questions.
Mr. Nadler. I thank the gentleman.
Ms. Caproni is recognized for 5 minutes.
TESTIMONY OF VALERIE E. CAPRONI, GENERAL COUNSEL, OFFICE OF THE
GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Ms. Caproni. Good afternoon, Chairman Nadler, Ranking
Member Franks and Members of the Committee.
Thank you for inviting me to testify today concerning
National Security Letters.
First, let me apologize to Chairman Nadler for the late
submission of my written statement. As you know, as a component
of the department, my statement has to be cleared by OMB and
the Department of Justice before submission, and that took
longer than expected. But I will certainly take back to the
department your concerns and your objections to the late
submission.
The Inspector General has now issued two reports regarding
the FBI's use of National Security Letters. Although those
reports revealed a number of ways in which the FBI fell short
of what is expected, today I would like to address three of his
findings.
First, the I.G. found no deliberate or intentional misuse
of NSLs, although there were clearly failures of internal
controls, as well as instances in which we had inadequate
controls and training. The I.G. did not find any evidence of
the FBI seeking records without a legitimate investigative
purpose.
With the exception of the exigent letter problem that I
will come back to, the vast majority of errors involved third
party errors, that is, the recipient of the NSL giving us more
information than we asked for, or inattention to detail--
shortcomings that are not to be excused, but which are far
different from intentionally obtaining records that we are not
entitled to.
Second, the recent I.G. report provides numerous examples
of cases in which NSLs were critical to investigations of
individuals who wished to do the United States harm, either
through terrorist acts or counterintelligence activities. FBI
personnel told the I.G. that NSLs are critical tools.
Put in the current vernacular, NSLs are needed to connect
the dots that the American people and Congress have told us,
loudly and clearly, that they expect us to connect.
Finally, the I.G. has acknowledged that the FBI has made
substantial strides forward in correcting the lapses previously
identified, and we appreciate him acknowledging that. We agree
with him that it is too early to know for sure whether these
actions will solve everything. But we fervently hope and
believe that, with sustained efforts, the controls, policies,
procedures and training that we have implemented should
eliminate the sorts of errors identified by the Inspector
General.
Before I end, I would like to address briefly exigent
letters, which was, in my view, the single most troubling
discovery by the Inspector General.
As your staffers have been briefed, we are in the process
of cleaning up the exigent letter problem, including unraveling
the so-called ``blanket NSLs'' that were mentioned in the
I.G.'s recent report. We are looking at every telephone number
that appears on a so-called blanket NSL or on an exigent letter
that we are aware of. In some instances we have found that
appropriate process has previously been issued.
In other instances we have found that, although a number
appears on an exigent letter or one of the blanket NSLs, we
have no records at all regarding that telephone number. If we
have records and no evidence that appropriate legal process has
previously been issued for the records, we are evaluating
whether the number is relevant to any investigation currently
open.
If so, a corrective National Security Letter or grand jury
subpoena will be issued. But the phone company will be directed
to give us no further records, since we already have the
record.
If there is no open investigation because of the passage of
time between getting the records and now--and you will recall
that the exigent letter problem has been going on for some
period of time--at that point, we will evaluate whether, at the
time we received the records, there was a true emergency that
would have justified disclosure of those records without legal
process under 18 U.S.C. 2702. If so, the emergency that existed
at that time is documented, and the records are retained.
One example of such a situation would be the emergency that
existed, and the phone records that we retained, in the
immediate wake of the disrupted plot to blow up jetliners as
they flew over the Atlantic Ocean.
If there is no currently open investigation, and there was
no emergency at the time we received the records, the records
are removed from our files and destroyed. This has been a
laborious, time-consuming process.
And I can assure this Committee that our efforts have been
designed to ensure that the FBI does not retain any record that
it should not have, while maintaining those records that could
be a dot that needs to be connected, in order to keep the
country safe.
In conclusion, the FBI believes that National Security
Letters are important tools in our national security arsenal,
and we are committed to using them effectively and legally.
I am happy to answer any questions the Committee may have.
[The prepared statement of Ms. Caproni follows:]
Prepared Statement of Valerie E. Caproni
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Mr. Nadler. I thank the witnesses, and we will now have a
round of questioning for the witnesses.
I will grant myself 5 minutes for questioning.
I will start with Ms. Caproni.
Ms. Caproni, you testified that the FBI has done a
sufficient job of self-reporting and does not need any
statutory remedies to address the abuses uncovered by the
I.G.'s report. Just today, however, the Electronic Frontier
Foundation disclosed that documents obtained by the EFF to a
Freedom of Information Act request show that a misuse of the
FBI's National Security Letter authority--issued at the
direction of FBI headquarters, not a field office--went
unreported to the Intelligence Oversight Board for almost 2
years.
Given that, and the numerous reports of abuse, how is
Congress and the public supposed to trust that the department
is capable of self-policing? Don't we need to restore the trust
in our intelligence community and checks on our process? And
why didn't anyone formally report this matter to the OIG until
February of last year?
Ms. Caproni. The incident that you are referring to that
was reflected in documents that the EFF recently released was,
first off, well before the reforms that we put into place
subsequent to the I.G.'s March 2007 report.
Mr. Nadler. Subsequent to what? I am sorry?
Ms. Caproni. The events occurred prior to the actions that
we have taken following the I.G.'s earlier report. That is, we
have put into place a number of controls now, that I believe
would have first resulted in that NSL not being issued. Or
second, if it was issued, being reported much more promptly.
In terms of why there was such a delay between the time
that there was public knowledge of that NSL--and there was
public knowledge, because it was reported in the press--and
March of 2007, is unclear to me. There was a direction made to
report the incident. It did not get reported. When we
discovered it had not been reported, it was directed to be
reported, and it then was reported.
Mr. Nadler. Thank you.
Now, both you and the Inspector General have expressed the
lack of intentional misuse of the NSL authority, all due to
improper--I should not say ``improper''--insufficient training,
and so forth. But the ``Washington Post'' has reported that
there was at least one IOB report of willful and intentional
misconduct.
Does the FBI consider the use of an NSL to seek records
beyond the scope of this statute at the specific direction of
FBI headquarters not deliberate or intentional?
Ms. Caproni. Chairman Nadler, again, I am not quite sure
why the direction was given to issue an NSL in that case. As I
look at what I believe they were seeking from the university,
an NSL was not the appropriate way to go.
It was unclear to me whether this was simply a
miscommunication. I find it hard to believe that the intent,
since we were entitled to the records, and we obtained the
records, pursuant to a grand jury subpoena, with the approval
of a court.
This was not an issue of we were seeking records that we
were not entitled to. An NSL was the wrong tool to use.
So it is unclear to me why headquarters directed that an
NSL be used.
Again, I think my--what I am stressing is, there is no
evidence of the Bureau using these NSLs to get documents----
Mr. Nadler. That they were not----
Ms. Caproni. They were simply irrelevant to our
investigative mission.
Mr. Nadler. Now, you stated that the majority of abuses
were made by third parties, not by the FBI.
Now, when a third party gives you too much improper
information, what do you do with it? Can you look at it and
issue another NSL to get that very information or more? And
wouldn't that be along the line of using evidence that is the
fruit of the poisonous tree?
Ms. Caproni. Let me address both issues.
First let me say that we now have in place policies and
procedures that require the case agents to review the returns
to make sure there is no overproduction. They cannot know
whether they have got an overproduction unless they actually
look at what they received.
If they have received information that is in excess of what
the NSL has called for, they have to sequester the information.
They can then make a decision. If what has happened is the
provider has provided us 2 extra weeks of bank records--so
those records are still relevant to the investigation, it would
be unusual that they would not be relevant--they can issue a
new NSL for that additional information.
If it is totally irrelevant--that is, maybe they
inadvertently provided us the wrong customer--that information
is not relevant to the investigation, so it cannot be used in
any way, nor can they issue another NSL for it. That will be
sequestered, and eventually be returned to the provider or
destroyed.
Mr. Nadler. Okay.
Ms. Caproni. More generally, though, your question about
fruit of the poisonous tree, I would like to address.
Fruit of the poisonous tree is a constitutional doctrine
that derives from a constitutional violation. It is important
to stress that these are not constitutional violations.
These are third party records held by third parties. There
is no violation of the customer's fourth amendment rights. When
we obtain the records that may be in excess of----
Mr. Nadler. But wait a minute. If the third party violated,
you could very well have a violation of the customer's fourth
amendment rights.
Ms. Caproni. With all due respect, sir, that would not be
correct under current Supreme Court precedents.
Mr. Nadler. Because it is not the government doing it
directly.
Ms. Caproni. No. It is because the records--the customer,
the customer's privacy interests in the records is not
constitutionally protected. Under existing Supreme Court
precedent, once they share the information with a third party,
the third party is free to disclose that information.
Mr. Nadler. And doesn't that argue that, in order to
protect those privacy records, there have got to be some checks
on the third party?
Ms. Caproni. There are checks on the third party. Congress
has passed a number of different privacy statutes that provide
statutory protection for the documents.
Mr. Nadler. And given the fact that everything here is
secret, how are those protections guaranteed or enforced?
Ms. Caproni. The issue of the secrecy versus the protection
are kind of two separate things.
Mr. Nadler. Well, but they interact with each other.
Ms. Caproni. The provider is still subject to a statutory
requirement that they not release the records without
appropriate process. That is their obligation.
Whether they comply, or even if they violate the statute,
there is not a constitutional violation. There is a statutory
violation.
Mr. Nadler. My time has expired, and I recognize the
gentleman from Arizona for 5 minutes.
Mr. Franks. Well, Mr. Chairman, thank you.
Ms. Caproni, you have testified that National Security
Letters generally permit us to obtain the same sort of
documents from third party businesses and prosecutors that
agents obtain in criminal investigations with grand jury
subpoenas, essentially all the time. But these are, of course,
domestic criminal investigations.
NSLs have been instrumental in breaking up cells like the
Lackawanna Six and the Northern Virginia Jihad. Through the use
of NSLs, the FBI has traced sources of terrorist funding,
established telephone linkages that resulted in further
investigations and arrests, and allow the FBI to link
terrorists together financially and pinpoint cells and
operatives by following the money.
In other words, it gives us some dots to connect. It is not
just a line. We do not just get a few triangles. We get a
picture that helps us solve or prevent some of these very
serious potential acts of terrorism against Americans.
Can you elaborate on what the loss of such a tool would be?
And perhaps even answer first, are we somehow thwarting the
constitutional rights of American citizens here?
Ms. Caproni. Again, absolutely not. These are records that
are being held by third parties. There is not a fourth
amendment constitutional protection for those vis-a-vis the
customer of the record.
In terms of the importance of National Security Letters,
they are critically important to our ability to do our job. By
getting records with National Security Letters, things like
phone records and bank records, those are the basic building
blocks of any investigations.
In a criminal investigation, they are critical. They are
there, kind of grand jury subpoenas, or, depending on the type
of case, with an administrative subpoena.
In the national security context, when we are looking at
terrorists, or intelligence officers for spies, where the risk
to the country is much higher, we use National Security Letters
to get the documents.
But the same underlying need exists, which is to build
enough information about the person, about the subject of our
investigation, to know whether or not this is someone who
intends to do us harm, and therefore, we need to follow them,
figure out who their compatriots are, so that we can disrupt
and dismantle their organization, or whether in fact they
intend no harm, in which case we close the investigation and
move on.
Without the ability to get these sorts of records, we will
be stopped in our tracks before we ever begin.
Mr. Franks. Well, you know, many FBI personnel have told us
that the NSLs are an essential and indispensable intelligence
tool.
And I guess, Ms. Caproni, I do not want to put words in
your mouth. I mean, from my perspective, this seems that
through the use of these NSLs, that we are doing everything
that we can to get at terrorists, while at the same time doing
everything we possibly can to observe the constitutional rights
of anyone in America, whether they be citizen or otherwise,
that the effort here is to truly protect American citizens and
to defend ourselves in a preventative capacity from being
attacked in this country.
So, I will just ask a couple of basic questions, put it in
your words. Do you think, once again, that we are thwarting the
Constitution here, that somehow we are subjecting people on
American soil to unconstitutional search and seizure, or
somehow thwarting their civil rights?
Ms. Caproni. Absolutely not.
Mr. Franks. And yet you are saying to me that this is a
vital tool in being able to help prevent--identify, prevent and
defend this country against terrorism?
Ms. Caproni. Absolutely. I do not believe that we could do
the job that Congress and the American people expect us to do,
in terms of keeping us safe from terrorism and from spies and
those who would steal our secrets, without National Security
Letters.
Mr. Franks. Well, Ms. Caproni, I could probably elaborate,
but I just wish that those basic points could be put forward.
Because sometimes there is a lot of noise that goes around here
and a lot of political grandstanding. But the reality is here
that the desire of this country is to protect its citizens, to
protect their constitutional rights. And unfortunately,
terrorists have other ideas, and they have to be dealt with in
ways that we really have little alternative.
It is about an intelligence gain. If we knew where every
terrorist was in the world today and what they were up to, the
war on terror would be over in 2 months. But unfortunately, we
do not.
So, I just thank you for your service to the country and
for doing everything you can to protect the citizens of this
country.
Mr. Nadler. I thank the gentleman.
I now recognize the gentleman from Virginia for 5 minutes.
Mr. Scott. Thank you.
Ms. Caproni, I am sure some of the letters are necessary.
Are all of these NSLs necessary?
Ms. Caproni. I am sorry. Are all of these----
Mr. Scott. Are all of them absolutely necessary for the
protection of the national security?
Ms. Caproni. Well, I believe they are. I do not think
agents issue National Security Letters to get records that are
not relevant to their investigations and needed, in order
either to close out a lead, you know, to--for us to ascertain
that the person does not pose a risk to the country, or, in
fact, to disclose that the person does pose a risk.
Mr. Scott. Now, exactly where is the oversight in all of
this?
Ms. Caproni. The oversight comes in a number of different
ways. First off, there are congressionally mandated juries. And
the Inspector General's reports obviously provided a great deal
of oversight.
Subsequent to the March 2007 report, we have mandated that
there are--there must be legal review of any NSL before it is
issued. I think that is one----
Mr. Scott. Say that again?
Ms. Caproni. Subsequent to the March 2007 Inspector
General's report, as a matter of internal policy, the FBI has
mandated that there must be legal review of any NSL before it
is issued.
Mr. Scott. And so, the check and balance is within the same
agency that is doing the issuing of the NSL?
See, some of us think check and balance means you check
with another branch of government. And we have another concept
of check and balance. You check with your co-workers. And if
your co-worker says what you are doing is okay, then it is
okay. That is not what some of us thought really was a check
and balance.
Ms. Caproni. If I could just continue on the other
controls.
And might I also say that I think the lawyers in the
Bureau, many of whom work directly for me, take their
responsibility relative to reviewing National Security Letters
very seriously. And if the material that is laid out in the
document supporting the NSL does not support the issuance of an
NSL, the lawyer will not sign off on it.
Mr. Scott. And these are all people who are hired by the
same attorney general. I mean, it is all within the same
agency.
Ms. Caproni. That is correct.
Mr. Scott. So, when that person says, this is what I want,
all of his employees are checking and balancing themselves.
Ms. Caproni. Again, the director of the FBI has made it
very clear that he wants to achieve the mission of the FBI, but
to achieve it lawfully. So, the mission of the employees of the
FBI is to achieve these goals consistent with the law.
Mr. Scott. But what happens if they--what happens if he
decides that he wants to do a little political shenanigan? What
happens then? What are the checks and balances?
Ms. Caproni. There is absolutely no evidence that this
director of the FBI would ever engage in political shenanigans.
Mr. Scott. Okay. Well, you know, the attorney----
Ms. Caproni. If I could get to the third----
Mr. Scott. Well, let me just say this. As part of--when I
listen to this, we are also listening and trying to get an
answer out of the Department of Justice as to whether or not
U.S. attorneys were fired because they did not indict Democrats
in time affect the next election. And so, we have not had a
credible response to that.
So, sometimes we suspect that there may be some political
shenanigans going on. And we are just asking where the checks
and balances are.
Ms. Caproni. Well again, I would say, Mr. Fine works for
the Department of Justice, too. And it seems to me he has
provided very vigorous oversight. So I think, merely because
your paycheck comes from the Department of Justice does not
mean that you are not capable or desirous of obeying the law
and providing the appropriate legal advice to your client.
Mr. Scott. Under the----
Ms. Caproni. If I could just--I cannot answer for the
Department of Justice in why they are not providing the
documents. That is not within the scope of my responsibilities.
But the third element of oversight that I think is
important for this Committee to recognize is, again, subsequent
to the March 2007 report and subsequent to Congress
establishing the National Security Division within the
Department of Justice, the National Security Division has set
up an oversight within the National Security Division.
Those attorneys go out to field offices and do what are
called national security reviews. They have access to
everything in the file. They can go through it from soup to
nuts.
Mr. Scott. And this is the same agency, though. They are
employed by the same agency.
Ms. Caproni. Well, they are Department of Justice
attorneys.
Mr. Scott. Okay.
What happened with this--what did the Supreme Court decide
in--decided it was unconstitutional in September 6, 2007?
Ms. Caproni. I am sorry. Say again?
Mr. Scott. Excuse me. The district court in 2007, what did
the court strike down, and what is the status of those----
Ms. Caproni. Is that the Southern District case?
Mr. Scott. Yes.
Ms. Caproni. I do not know the date----
Mr. Scott. Southern District of New York, yes.
Ms. Caproni. That case is pending on appeal. I believe it
has been fully briefed in the Second Circuit, but it might not
quite be fully briefed. So I would anticipate argument in the
next few months.
That case did, as Chairman Nadler pointed out, hold that
there was, even after the PATRIOT Act Reauthorization Act,
which changed the rules on disclosure and nondisclosure of
National Security Letters by the recipient, Judge Marrero
found, nonetheless, that the new statute continues to be
unconstitutional under the first amendment. That is what is
pending on appeal, is whether, in fact, the structures that the
Congress passed in the PATRIOT Reauthorization Act was
constitutional under the first amendment.
There is also an issue about whether the gag provisions of
that bill are severable. That is, would Congress prefer there
to be no national security statute, that there is not a
requirement, or can we sever the requirement as being
unconstitutional and keep the balance of the statute?
Those are the two primary issues that are pending on appeal
before the Second Circuit.
Mr. Nadler. The gentleman's time has expired.
I believe the court, the lower court has decided it was not
severable. Correct?
Ms. Caproni. That is correct.
Mr. Nadler. Thank you.
We thank the witnesses from the first panel.
We ask that the members of the second panel come forward
and take their seats.
And while they are taking their seats, let me perform the
introductions.
Jameel Jaffer is the director of the American Civil
Liberties Union's National Security Project. The project
litigates civil liberties and human rights cases related to
detention, torture, surveillance, censorship and secrecy. Mr.
Jaffer's own litigation docket includes Doe v. Mukasey, a
challenge to the FBI's National Security Letter authority.
Before joining the staff of the ACLU, Mr. Jaffer served as
law clerk to the Honorable Amelia First, U.S. Court of Appeals
to the Second Circuit, and then to the Right Honorable Beverly
McLaughlin, Chief Justice of Canada. He is a graduate of
Williams College, Cambridge University, and Harvard Law School.
Bruce Fein needs no introduction, but I will introduce him
anyway. He is a graduate of Harvard Law School. He joined the
U.S. Department of Justice, where he served as assistant
director of the Office of Legal Policy, legal adviser to the
assistant attorney general for antitrust, and the associate
deputy attorney general.
Mr. Fein then was appointed general counsel of the Federal
Communications Commission, followed by an appointment as
research director for the Joint Congressional Committee on
Covert Arms Sales to Iran.
Mr. Fein is an adjunct scholar with the American Enterprise
Institute, a resident scholar at the Heritage Foundation, a
lecturer at the Brookings Institution and an adjutant professor
at George Washington University.
Michael J. Woods served as chief of the FBI's National
Security Law Unit from 1997 to 2002, as counsel to the National
Counterintelligence Executive in 2002, and as a Department of
Justice prosecutor from 1993 to 1997.
During his time at the FBI, Mr. Woods and the lawyers under
his supervision were responsible for providing legal advice to
agents and analysts involved in counterintelligence and
counterterrorism operations, and for the production and review
of National Security Letters. Mr. Woods is a graduate of
Harvard Law School and of Oxford University.
David Kris is a graduate of Haverford College and Harvard
Law School. He clerked for Judge Stephen Trott of the Ninth
Circuit, joined the Department of Justice through its honors
program. He worked as a prosecutor for 8 years from 1992 to
2000, conducting several trials and arguing appeals across the
country.
From 2000 to 2003, he was associate deputy attorney
general. In that role, his unclassified responsibilities
included supervising the government's use of the Foreign
Intelligence Surveillance Act, or FISA, which has been somewhat
in the news lately, representing the Justice Department to the
National Security Council and in other interagency settings,
briefing and testifying before Congress and assisting the
attorney general in conducting oversight of the U.S.
intelligence community. He is an adjunct professor at
Georgetown University Law Center.
Without objection, your written statements will be made
part of the record in their entirety. We would ask each of you
to summarize your testimony in 5 minutes or less.
As a reminder, there is a timing light at your table. When
1 minute remains, the light will switch from green to yellow,
and then to red when the 5 minutes are up.
Before we begin, it is customary for the Committee to swear
in its witnesses.
If you would please stand and raise your right hand to take
the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information and belief?
Thank you.
Let the record reflect that the witnesses answered in the
affirmative.
You may be seated.
We will now call upon the first witness for 5 minutes.
Mr. Jaffer?
TESTIMONY OF JAMEEL JAFFER, DIRECTOR, AMERICAN CIVIL LIBERTIES
UNION'S NATIONAL SECURITY PROJECT
Mr. Jaffer. Chairman Nadler, Ranking Member Franks, thank
you for inviting me to testify today about National Security
Letters and H.R. 3189, the National Security Letter Reform Act.
The NSL statutes invest the FBI with sweeping power to
collect information about innocent people, and they allow the
agency to impose unconstitutional gag orders on NSL recipients.
Mr. Nadler's bill would introduce much needed safeguards
for civil liberties, while preserving the executive's ability
to collect information about people who actually pose threats.
I want to highlight two serious problems with the NSL
statutes: their impact on wholly innocent people and their
authorization of unconstitutional gag orders.
The statutes permit the government to obtain records about
people who are not known, or even suspected, to have done
anything wrong. Because of changes made by the PATRIOT Act, the
FBI can compile vast dossiers about innocent people--dossiers
that could include financial information, credit information
and even information that is protected by the first amendment.
The Inspector General's audits confirm that the FBI is
collecting information about people two and three times removed
from actual suspects. Roughly 50,000 NSLs are being issued
every year--most seeking information about U.S. persons.
The FBI stresses that NSLs are used only to collect
transactional or non-content information. But NSLs reach
information that is extremely sensitive.
The FBI can compel an Internet service provider to disclose
the identities of people who have visited a particular Web
site, a list of e-mail addresses with which a particular person
has corresponded, or even the identity of a person who has
posted anonymous speech on a political Web site.
Privacy concerns aside, Congress must ask whether it serves
national security to create vast databases of information about
innocent people. Post-9/11 investigations found that over-
collection can divert resources away from the most important
investigations and bury the most important information.
Mr. Nadler's bill will protect the privacy of innocent
people, while at the same time refocusing the government's
antiterrorism resources on actual terror.
Mr. Nadler's bill will also address a second problem with
the NSL statutes. The problem is that each of the NSL statutes
allows the government to impose gag orders on NSL recipients.
These gag orders are not subject to prior judicial review; the
FBI imposes them unilaterally.
NSL recipients can challenge the gag orders in court, but
the judicial review is toothless. It is the FBI that decides
whether secrecy is necessary, and the courts are required to
defer to the FBI's decision.
Now, obviously, secrecy is necessary in some national
security investigations. But the FBI's power to impose gag
orders should be subject to meaningful judicial review. Without
that review, the power is easily abused.
The ACLU currently represents someone--I will call him John
Doe--who was served with an NSL. Doe believes that the NSL was
illegal, but a gag order bars him from explaining why he holds
that opinion, or even from disclosing his own identity. For 4
years now, Mr. Doe has been prohibited from telling the public
why he believes the FBI is abusing its power. And the FBI
continues to enforce the gag order today, even though it
abandoned its demand for records more than a year ago.
The Chairman's bill would prevent this sort of abuse.
This past September, a Federal court struck down one of the
NSL's statutes in its entirety. The court held that gag orders
must be subject to prompt judicial review, and the courts must
be permitted to invalidate gag orders that are not narrowly
tailored to a compelling government interest. As long as the
NSL statutes foreclose a sign of judicial review, the statutes
are unconstitutional, and the government risks losing the NSL
authority altogether.
Mr. Nadler's bill will align the NSL statutes with the
first amendment. Gag orders will not be barred under the bill
when secrecy is truly necessary, but rather, they will be
limited to those circumstances. Moreover, the bill will ensure
that gag orders are no broader than absolutely necessary.
Absent an actual need for secrecy, an Internet service
provider should be able to tell the public if it receives an
NSL that seeks information about thousands of people. And
absent an actual need for secrecy, a library should be able to
tell the public if it receives an NSL that seeks information
about first amendment activities.
Mr. Nadler's bill would protect first amendment rights,
while at the same time allowing for secrecy where legitimate
national security concerns compel it. The ACLU commends Mr.
Nadler for introducing the bill.
Thank you again for the opportunity to appear today.
[The prepared statement of Mr. Jaffer follows:]
Prepared Statement of Jamel Jaffer
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the gentleman.
And I now recognize Mr. Fein for 5 minutes.
TESTIMONY OF BRUCE FEIN, CHAIRMAN OF THE AMERICAN FREEDON
AGENDA, FORMER ASSISTANT DEPUTY ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Fein. Thank you, Mr. Chairman and Members of the
Subcommittee.
I would like to begin with some cardinal principles about
the United States Constitution and the theory of government
itself, that I think should inform the relative balance between
law enforcement and privacy that is at issue in discussing
National Security Letters.
John Adams remarked that the fuel of the American
Revolution was James Otis' protest against King George III's
customs collectors invading every home in search of contraband
or otherwise. It was a privacy issue that was the heart of the
American Revolution.
And the idea that was descendent was that the right to be
left alone from government intrusions, as Justice Louis
Brandeis explained, is the most cherished amongst civilized
people--the right to be left alone. It did not mean the
government could never intercede--there are obviously problems
with many mischievous people in the community--but that the
government had to make a very powerful case to show why that
right to be left alone should be disturbed.
Moreover, the Founding Fathers believed not that government
should be weak, but that in exerting aggressive powers, there
should be checks and balances. This is an idea that was
explained by Justice Robert Jackson in United States v.
Johnson.
Now, Jackson spoke from some experience. He was the
Nuremberg prosecutor. He had seen the Nazis first hand.
And he explained that, what the police often fail to
remember is not that the law is against detecting criminals,
but that the decisions to make intrusions on privacy need to be
checked and supervised by an outside party--there, a judge
issuing a judicial warrant--drawing inferences based from a
neutral perspective, rather than from the perspective, as
Justice Jackson put it, the competitive enterprise of seeking
to punish and capture criminals.
That is the background in which we come to approach the
National Security Letters. The right to be left alone is
cherished. The burden is on the government to show why these
rights should be invaded; and moreover, if so, why there should
not be customary checks and balances.
Let me outline what are the ways in which traditionally we
try to check aggressiveness or needless intrusion on the right
to privacy.
First, with a grand jury, those are citizens who decide
whether to issue a subpoena for records that are the type that
are sought in National Security Letters. And the grand jury is
overseen by a judge, an Article III judge.
Moreover, as pointed out, typically the subpoena is subject
to disclosure in the sunshine. We know, as Louis Brandeis said,
sunshine is the best disinfectant. So, that publicity is an
additional deterrent to wrongdoing or misuse.
Now, the National Security Letters fall outside that
customary framework that balances privacy against law
enforcement. There is no outside party that reviews the
issuance of National Security Letters. It is the FBI deciding
on its own. Moreover, with the non-disclosure rule, you do not
have the sunshine that can act as a deterrent, as well.
Now, it has been observed correctly, I think, by
Congressman Franks in the previous exchanges, that certainly,
National Security Letters, if you look, have they produced
useful information? Certainly, they have.
But the decisive issue, I think, for the Committee is, why
couldn't that information have been obtained through a
customary grand jury proceeding or gathering intelligence under
FISA, where typically you have a judge decide whether or not
there is sufficient reason to intrude upon that cherished right
to be left alone?
And I do not think the FBI has been able to explain what it
is that they got with National Security Letters that they could
not possibly have gotten, had they used the regular way that
the Founding Fathers thought was sufficient.
I think that, when you ask about internal reviews, let us
remember FISA. That was a warrantless national security program
which had internal reviews every 45 days. And mirabile dictu,
every 45 days it was approved.
These kinds of internal checks do not work. I worked in the
Department of Justice. You do not need to have an explicit
order in the bureaucracy to know which way it will come out.
And we have seen that in some respects, I think, between the
lines, if you read John Yoo's unclassified document relating to
what was torture and what was not, whether the President had
supreme commander-in-chief authority to flout any law this body
enacted in the name of national security.
And that is what the Founding Fathers understood. If men
were angels, we would not need separation of powers. But they
relied upon checks and balances. As President Reagan put it,
``Trust, but verify.''
And I think that is the spirit of Congressman Nadler's
bill, and I highly support it and commend it.
Thank you.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
Mr. Chairman and Members of the Subcommittee:
I welcome the opportunity to share my views on H.R. 3189, the
National Security Letters Reform Act of 2007. I support the bill. It
strikes a balance between privacy and law enforcement vastly superior
to existing law in honoring the charter principles of the American
Revolution and the Constitution.
The Declaration of Independence sets forth the purpose of the
United States government: to secure the unalienable rights to life,
liberty, and the pursuit of happiness enjoyed by ever y American
citizen. The signature creed of the United States has been that
individual freedom is the rule. Government intrusions are the exception
that can be justified only by clear and substantial community
interests. Justice Louis D. Brandeis lectured in Olmstead v. United
States (1928) that the right to be left alone is the most cherished
freedom among civilized people. Privacy is not only a good in itself;
it also nurtures a sense of assertiveness, robust independence, and
even rebelliousness which are the lifeblood of democracy. The greatest
danger to freedom is an inert or docile people fearful that the
government has access to every detail of their private lives.
In the typical federal criminal investigation, a grand jury
composed of ordinary citizens, supervised by an independent and neutral
federal judge, issues subpoenas for records relevant to determining
whether an indictment should be voted. The prosecutor cannot act as a
surrogate for the collective view of the grand jury because of the
temptation to overreach in a quest for fame, vindictiveness or
otherwise. Supreme Court Justice Robert Jackson captured the idea in
Johnson v. United States (1948) in addressing the Fourth Amendment's
protection against unreasonable searches and seizures and the customary
requirement of a judicial warrant based on probable cause: ``Its
protection consists in requiring inferences [of crime] be drawn by a
neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime.''
The recipient of a grand jury demand may move to quash the subpoena
as unconstitutional or otherwise in violation of law. The target may
also publicize the subpoena to expose possible abuse or overreaching or
the need for remedial legislation. Sunshine is frequently the best
disinfectant.
Of course, there are exceptions to every rule. The Constitution is
not a suicide pact. It seems worth noting, however, that the United
States Supreme Court has refused to carve out a Fourth Amendment
exception for murder investigations despite the alarming annual number
of murders. (The FBI estimated the murder toll in 2006 at more than
17,000, or approximately six times 9/11 fatalities). National security
letters (NSLs), which deviate sharply from customary law enforcement
methods, might be justified in principle if there were a substantial
showing that espionage or international terrorism crimes were eluding
detection because available investigatory tools were insufficiently
muscular; and, that NSLs would provide the necessary muscle to thwart
national security crimes. (The Patriot Act's elimination of the wall
between intelligence collection and law enforcement makes NSL requests
indistinguishable from grand jury subpoenas for documents), NSLs should
are presumptively disfavored because they may be issued by the
government without any citizen or judicial supervision and lack the
transparency that is a cornerstone deterrent to abuses.
I do not believe either benchmark for NSLs has ever been satisfied
to overcome the presumption. Before their enshrinement in the Patriot
Act, Congress was not presented with a roster of international
terrorist incidents that probably would have been foiled if NSLs had
been available. The 9/11 Commission did not find that the terrorist
abominations might have been forestalled with NSLs. After years of
intensive use, this Committee has not been presented with a list of
espionage or international terrorism crimes that were prevented or
solved because of NSLs and could not have been prevented or solved
otherwise. NSLs are the twin of the quest to emasculate the individual
warrant protection of the Foreign Intelligence Surveillance Act with
general warrants rubber stamped after the fact by a FISA judge.
H.R. 3189 should be supported because it diminishes (although it
does not eliminate) the gratuitous encroachments on citizen privacy
under the existing laws governing NSLs. There is not a crumb of hard
evidence that enactment of the bill would cause a single act of planned
espionage or international terrorism to go undetected.
The bill would confine NSLs to investigations where there are
specific and articulable facts indicating the target is a foreign agent
or foreign power. The former standard was simple relevancy to an
espionage or international terrorism investigation. The bill also
saddles NSLs with the same standards of reasonableness as would obtain
if a grand jury subpoena had been issued in conjunction with an
espionage or international terrorism investigation. It also places
reasonable limits on the secrecy of NSLs. The democratic values
advanced by transparency cannot be overstated. Secret government wars
with self-government and deterring misconduct. The Constitution does
not permit secret detentions and trials of suspected international
terrorists even if public knowledge might clue Al Qaeda where its
network might be vulnerable. Of course, a disclosure of an NSL to
assist obstruction or evasion of justice is itself a crime.
The bill would require minimization procedures to diminish the
volume of private information unrelated to foreign intelligence or
crime in government files. The standards for retention, however, are
inescapably nebulous, and will easily blunt the purpose of minimization
as they have regarding FISA. Deterrence of government wrongdoing is
buttressed by creating a criminal justice suppression remedy for
violations and a civil cause of action for the target. Regarding the
latter, I would bring the suit within the universe of civil rights
claims subject to the Civil Rights Attorneys' Fees Award Act of 1988.
The recipients of NSLs have little or no incentive to challenge their
legality because compliance with an administrative subpoena ordinarily
shields the recipient from liability to the target. See e.g., 18 U.S.C.
2703(e).
Freedom requires a certain level of risk that tyrannies might find
unacceptable. The risk of international terrorism in China may be less
than in the United States, but who among us would prefer the former to
the latter? We should never forget that the revolutionary idea of
America was that government exists to secure the unalienable individual
rights of every citizen period, with no commas, semi-colons or question
marks. There can be no doubt that NSLs have been fueled by post-9/11
fears. But we should be steeled against capitulation by James Madison's
admonition: ``If Tyranny and Oppression come to this land, it will be
in the guise of fighting a foreign enemy.''
Mr. Nadler. I thank the gentleman.
I recognize Mr. Woods for 5 minutes.
TESTIMONY OF MICHAEL J. WOODS, FORMER CHIEF,
FBI NATIONAL SECURITY LAW UNIT
Mr. Woods. Thank you, Mr. Chairman, Mr. Franks and Members
of the Committee.
I am very pleased to have been invited to this hearing this
afternoon to assist you.
My interest in this area is really twofold.
First, I was, as chief of national security law in the FBI
prior to the PATRIOT Act and shortly thereafter, supervising
the lawyers, who at that time prepared National Security
Letters. I have calculated roughly that 75 to 80 percent of
them were prepared within 10 or 15 feet of my office where I
sat. So, I am happy to give the Committee the benefit of that
experience.
I was also part of the discussion and part of the process,
at least in the FBI, of making proposals at the time for the
PATRIOT Act. And so, I can explain, if the Committee is
interested, the background and the change in legal standard.
But I am also fascinated from an academic perspective
since, with the idea of transactional information. We all
generate enormous amounts of this. And technology and the
changes in our society are increasing the amount of that
information. And although it does not contain the content of
private communication, it is revealing a steadily more detailed
picture of what we do every day.
That information--unlike our content, unlike things that we
have a more direct privacy interest in--resides in the hands of
third parties in quantities, formats and conditions of which
most of us remain unaware. The constant expansion in the
capacity of storage systems and in the power of search engine
technology makes this transactional information more
permanent--and more easily accessible--than ever before.
So, the question is: Under what circumstances do we want
the government in its intelligence gathering function to have
access to that information? How should they use it? How should
they store it?
How can their use of it be challenged? How can their
acquisition of it be challenged? And I am hoping that I can
contribute something to the Committee's discussion of that
today.
It is an enormous challenge. On the one hand, the explosion
of transactional information has opened a new front in the
fight against terrorism and foreign intelligence services. Our
very sophisticated adversaries have long since learned to
conceal their direct communications from us, but now may be
detected in their digital footprint.
After 9/11, transactional information was key to
reconstructing the terrorists' operations, and it is probably
one of our best hopes, one of our most effective means of
detecting another imminent attack.
Yet, this information, as I say, is revealing more than
just the transaction, just the outside nature. Its quantity and
quality are raising the amount that it tells us about a
subject.
And so, I believe that the tool that the FBI has to acquire
that information, though it must be flexible and it must be
efficient, and it must, as it does now, allow the acquisition
of information relevant to an investigation, it needs to be
controlled. It needs to have effective minimization rules,
effective retention rules.
And beyond the sort of legal effectiveness or legal
elegance of them, they have to be rules that inspire confidence
in the American public, confidence that this authority is under
control, confidence that it is being used correctly.
My hope is to contribute to that discussion today with the
Committee, and I am very happy to answer any questions.
[The prepared statement of Mr. Woods follows:]
Prepared Statement of Michael J. Woods
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the gentleman.
I now recognize Mr. Kris for 5 minutes.
TESTIMONY OF DAVID KRIS, FORMER ASSOCIATE DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Kris. Chairman Nadler and Ranking Member Franks,
Members of the Subcommittee, thank you for inviting me to
testify today.
I support new legislation in this area, and I believe that
H.R. 3189 is an excellent vehicle for further discussion
leading to reform. And I have submitted a few comments on the
bill to your staff.
But I must say that I would go further. I believe that
Congress should enact a single statute providing for national
security subpoenas to replace all of the current NSL
provisions.
And the principal reason for this recommendation is that it
would streamline and simplify current law, which is both
intricate and idiosyncratic, to the detriment of both our
liberty and our security.
A single statute would also allow a well considered and
global resolution of the difficult policy questions that
necessarily attend the enactment of any national security
subpoena or related power.
Now, I believe any new statute should satisfy 10 essential
elements that are discussed in my written submission. But let
me just outline three of the most important, many of which are
in H.R. 3189 in one form or another.
First, I think national security subpoenas, like grand jury
subpoenas, should be issued by DOJ lawyers.
Second, the subpoenas should be limited to acquiring
certain specified types of foreign intelligence or other
protective information.
And third and finally--and this is critically important in
my view--use of the subpoenas should be governed by rigorous
minimization procedures concerning acquisition, retention and
dissemination of information. The absence of such procedures in
current law, I think, is a very notable omission. H.R. 3189
would deal with this problem, as well, and I think it is
vitally important.
So, again, I appreciate the invitation to testify, and I
look forward to answering any questions.
Thank you.
[The prepared statement of Mr. Kris follows:]
Prepared Statement of David Kris
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you very much.
We will now have a round of questions, and I will recognize
myself for 5 minutes to begin the questioning.
Let me ask first. We have heard that we should not go back,
as the bill that I have introduced would do, to a specific and
articulable fact indicating that somebody is an agent of a
foreign power, because that would cut off investigations at the
outset. I believe someone has testified--maybe Mr. Woods
testified to that effect.
Mr. Fein, why is it safe to do that?
Mr. Fein. Well, first of all, it does not cut off the
investigation at the outset. You can have a grand jury, which
has a broader mandate, because there are checks.
And specific and articulable facts are the customary way in
which we conduct stop and frisk. Those situations where, short
of probable cause, it is thought that an immediate danger to
safety required something less than probable cause.
And there has been no showing that the stop and frisk
standard, the reasonable and particularized suspicion standard,
in that context has proved insufficient to protect the national
security. There is no reason to think that the same standard
applied, when you are trying to gather information that is
important to the safety of the American people, that it should
be any less effective.
Now, it is certainly to be--it is self-evident that, say,
if you have no restraints on gathering information, then you
can gather more information, and it is less likely anything
will slip through the cracks.
Mr. Nadler. But we do not need a broad fishing expedition.
Thank you.
Mr. Woods, would you comment on that?
Mr. Woods. Yes. I think the example of a stop and frisk
illustrates the difference. Stop and frisk is a physical
environment. I see someone walking down the street. I am a
police officer, and I decide to stop that person. I have a
target, who is a known individual.
In the case of National Security Letters, and particularly
in the intelligence gathering case, that is not the dominant
situation. The dominant situation is, we have unknown subjects.
We have generalized threat information that we need to pin
down.
And when this standard was selected for National Security
Letters, it very much reflected the sort of traditional, spy-
catching counterintelligence that was going on at the time.
And I think, my own experience was that that did not serve
as appropriate as we moved into more counterterrorism
operations toward--through the end of the 1990's. And that that
is what justified the change----
Mr. Nadler. Thank you.
Mr. Kris, would you comment on that?
Mr. Kris. Well, I guess two things.
First, the grand jury standard, which has been referred to
by analogy here, is actually quite broad. And a grand jury is
entitled to investigate on something far less than reasonable
suspicion or a specific and articulable fact. It can
investigate on any kind of suspicion that the law is being
broken, or even just to assure itself that the law is not being
broken.
Second, my own view is somewhere in between these two
positions. I do not necessarily support the reversion to the
pre-PATRIOT Act standard.
But I think it would be useful to focus the information
sought by the subpoena on the definition of foreign
intelligence information in FISA, which essentially is
information that is either relevant or necessary to the ability
of the United States to protect against these various specified
foreign threats.
Mr. Nadler. Is that so general that you could not apply it
to a specific case, what you just said?
Mr. Kris. No, I think you could--I mean, you could apply
that standard to a specific case. But the value of it, I think,
is that it would keep the agents focused on the ultimate goal,
which is to keep us safe, unmediated by the sort of more
nebulous contours of their investigation, which may expand in
one direction or another.
Mr. Nadler. Thank you.
Mr. Fein, courts have ruled that the fourth amendment does
not protect records held by third parties.
Do you agree with this? And what is the interest in
protecting these records, if the fourth aendment does not
demand a warrant?
Mr. Fein. Well, the fourth amendment protects reasonable
expectations of privacy. And whether you agree with the Smith
case and some of the others, that suggest people do not have
any expectation of privacy in the phone numbers they dial or in
bank records, can disagree. But that is the standard they have
used.
They can reverse themselves, based upon the fact that this
kind of information more and more is able to be utilized to
develop a footprint, if you will, a signature of someone, that
was not a danger years ago before you had the Internet.
Mr. Nadler. So, would you say, in other words, that with,
as Mr. Woods put it, more and more transactional information
being made available, simply by the way we live our lives these
days, that in fact, people, without thinking about it, do
expect privacy, where perhaps the court----
Mr. Fein. Perhaps they would, yes.
Mr. Nadler [continuing]. Didn't think about it before?
Mr. Fein. And it is also quite clear, Mr. Chairman, that
the Congress is not prohibited by the Constitution from
providing greater privacy. And soon after some of these
decisions on bank records, Congress did enact the Right of
Financial Privacy Act that went beyond the particular fourth
amendment. And I think that is the spirit of the United States
Constitution.
The right to be left alone is the rule. The government has
to make a strong showing for an exception.
Mr. Nadler. Thank you.
Without objection, I am going to ask one more question to
Mr. Jaffer.
Can you elaborate on why it is particularly important that
the gag provision be tailored? Why doesn't the first
amendment--the bill tailors the gag provision. It does not
eliminate it, but it tailors it in various ways.
And why doesn't the first amendment allow the government to
gag an NSL recipient without any court review? Which, in
effect, is what you have now, because the court review--any
court review where the court has to take whatever the
government says as dispositive, is not a real review,
obviously, because it leaves no discretion of the court.
So, why doesn't the first amendment allow the government to
gag an NSL recipient without any court review, when it is a
matter of national security?
Mr. Jaffer. Well, a couple of things. Let me speak to it
from my own experience representing entities or individuals
that were served with National Security Letters.
In some cases, the entities that are served with National
Security Letters have information about government abuse. They
would like to disclose that information to the public. They
would like to disclose it to Congress.
We represent one client that wanted to disclose information
to Congress during the PATRIOT Act reauthorization debate, and
was not permitted to do that.
So, the gag orders have a very serious effect, not just on
the first amendment rights of NSL recipients, but on the public
access to information about the government's use of these
surveillance authorities.
But just as a matter of protecting against abuse, it is
very important that there be this kind of public oversight.
And if I could just underscore a distinction that was made
by one of the other panelists, between the grand jury subpoena
context and the National Security Letter context, the
recipients of grand jury subpoenas are ordinarily not
foreclosed from disclosing to other people that they received a
subpoena. And the fact that they can disclose that information
serves as a kind of check against abuse. And that check is
missing in the National Security Letter context.
So, it would not make sense just to take the standards that
apply in the grand jury context and export them wholesale to
the National Security Letter context. The contexts are quite
different, because there is no check. Exactly.
Mr. Fein. If I could just add a footnote, Mr. Chairman. You
may recall in the Pentagon Papers case, the government
unilaterally said you cannot--the courts have to suppress any
disclosure of the Pentagon Papers, because there would be
national security danger. And the Supreme Court said no. They
were published, and the sky did not fall.
Mr. Nadler. Well, that is very true. Thank you.
With the indulgence of the Committee, I must note that, at
a hearing of this Subcommittee, I think a week or two ago, on
the state secrets issue, we had a witness here who testified
that, in the--who was the brother of the plaintiff in a Supreme
Court case 50 years ago, 55 years ago, that established the
state secrets doctrine--that the accident report which the
courts upheld as a state secret, because they revealed state
secrets, she found in the incident a couple of years ago, and
declassified, and there were no state secrets in it.
In fact, it was just self-serving on the part of the
Administration 55 years ago to use that excuse. So, we know
that that happens.
Thank you very much.
I will now recognize the gentleman from Arizona for a very
flexible five minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, Mr. Woods wrote in his testimony that a clear
goal of counterintelligence is to identify spies and
international terrorists.
If an investigator has specific and articulable facts that
a target is an international terrorist, then essentially, they
have already achieved that goal. And I think that was extremely
insightful.
One of the things we have to separate here, in my judgment,
in Mr. Fein's case, he has pointed out some things that I
respect very deeply, that we need to leave our citizens alone.
And I believe that. But we also have a responsibility to leave
them alive.
And we want to make sure that we separate those things that
are directly having to do with their privacy, and these things
that are just kind of--that are not fourth amendment-protected
things--the information that would give us the ability to
identify whether someone is a potential terrorist that then we
can take to the court in the first place.
Without some of this information, we would not be able to
go to a judge, because we do not have enough information even
to suggest that there is any issue. The police officer cannot
go to the judge before he takes a blindfold off to look at the
neighborhood. We have to kind of try to get a little bit
commonsense and reasonable here, in my opinion.
Mr. Woods, in your written testimony, you criticize the
idea of returning to the pre-9/11 standard of specific and
articulable facts. You write that the FBI counterterrorism
operations will suffer if the FBI cannot expeditiously obtain
relevant information in these settings, and that you think that
the need for the harmonization of criminal and national
security legal standards for the acquisition of transactional
information remains as vital now as it was at the time of the
PATRIOT Act.
Can you elaborate on that a little bit? You are very
articulate, and talk to us about that.
Mr. Woods. The reasoning behind that is reflected in your
question, which is--and I tried to lay out in my testimony, and
I have laid out in truly mind-numbing, fully annotated detail
in my law review article attached to it--how these authorities
developed. And they--the specific and articulable fact
standard, as I said, worked very well in the traditional
counterintelligence environment when we often worked from known
individuals, intelligence officers that we had under
surveillance, that we were sort of moving outward from.
It, however, began to run into difficulty in the
counterterrorism environment, when you are working sort of the
other direction, from INCOINT threat information, from threats
that point you toward perhaps a large number of people that you
need to sort through and focus very quickly on the people who
are going to be relevant to the investigation.
And the problem is, when you address that sort of situation
under specific and articulable facts, you did not have specific
and articulable facts with reference to all of the people in
that group. The information was relevant, but you were short of
that standard, just as you would be short of the probable cause
standard in FISA.
And so, this is the reason why the FBI came to Congress
asking for the standard to be made relevant, in my view, the
principal reason.
The second reason was simply the--as has been pointed out
in other parts of the testimony--to make these authorities
roughly equivalent to the criminal authorities, recognizing,
though, that we have to do something.
And I agree with everyone that has been testifying. We have
to do something about the secrecy provisions. We have to do
something about retention and dissemination. But the general
intent was to make these authorities roughly equivalent to
criminal authorities, and make them appropriate to the threat.
And I do not think that rolling back to the old standard
addresses--neither does it address the problems that were
brought up in the I.G. reports, nor does it leave us well
positioned to address the threat in the environment that we are
encountering.
Mr. Franks. Mr. Chairman, I will try to squeeze one more
quick question here.
Mr. Woods, in your written testimony, you also expressed
deep concerns with the provision in H.R. 3189 that would
prevent the use of National Security Letter information for
intelligence purposes. You wrote that the sections of the bill
that address the dissemination of NSL enforcement to law
enforcement--information to law enforcement--would be a
thoroughly unwarranted revival of the wall separating
intelligence and law enforcement that operated to such a
crippling effect prior to 9/11. And this is not justified by
the significant--interests at stake here.
And I think that is obviously, again, an articulate point
of view. And I wonder if you could elaborate on that.
Mr. Woods. I will try to do so briefly.
The wall situation was a very complicated one. Mr. Kris and
I and others could talk about it for hours.
But the difficulty I have with that provision of 3189, I
think it mirrors provisions in the FISA statute, which are
there for a little bit different reason. But when we did have
that requirement, when we had to track FISA-derived information
that might get into law enforcement channels, we very quickly
got ourselves into a very complex situation that had very
negative effects on counterterrorism operations prior to 9/11.
And this is all documented in the 9/11 Commission Report.
I think proposing to take the same approach now in National
Security Letters, which are 10 times, 20 times the number of
FISAs, is essentially asking for trouble. And we are going down
a road that was proven to have difficulty. And it is
inconsistent with our counterterrorism strategy at the moment.
If we obtain useful information through a National Security
Letter, we should be sharing it with law enforcement, with
homeland security. The idea that we would hold back
intelligence reports, trying to figure out if there was
National Security Letter information in it, that we would slow
down the sharing of information among Homeland Security and
other protective services, State and local law enforcement, is
not going to help us.
And so, I think that provision needs to be looked at. And
in fact, I would advocate taking it out and having--sort of
defaulting to the dissemination guidelines in the attorney
general's guidelines. That would make it far easier to
disseminate to those entities.
Mr. Franks. Thank you, Mr. Chairman, and thank all of you.
Mr. Nadler. Thank you.
I now yield 5 minutes for questioning to the distinguished
Chairman of the full Committee, the gentleman from Michigan.
Mr. Conyers. Thank you, Chairman Nadler. Welcome, all
witnesses.
Let us see if during my in-and-out during this hearing,
Jaffer for the Nadler--and recently added Member to the bill,
Conyers--proposal. Fein, for the proposal. Woods, partially for
it. Kris, somewhat for it. Is that unfair characterization? Or
am I giving you too much support for it than you deserve?
Mr. Woods. I think the part of it that I do not support may
well be very significant to the legislation's author. So,
perhaps I am a little bit more in the----
Mr. Conyers. I am over-complimentary this afternoon.
Mr. Woods. But I certainly support the idea of legislation.
Mr. Conyers. How can we get it fixed so that you could go
along with Nadler, Conyers and the Chairman of the Crime
Subcommittee? I mean, what would we have to do to make it, that
you would say, okay? Tell me.
Mr. Woods. I am primarily concerned with the standards. My
experience with the specific and articulable fact standard
showed that, to me, to be a very frustrating, clumsy standard,
which was outmoded by the time I encountered it in the 1990's.
So, my principal objection is the standard. And as I said,
I think the sharing with law enforcement and Homeland Security
needs to be fixed, as well.
But certainly, what is--many of the other provisions of the
legislation are quite good and the direction we need to go. And
I am not trying to do--you know, I am certainly not here to
defend the FBI over the last 3 years and what you saw in the
I.G. report. I think what is in the legislation addresses that.
And so, but there's a lot of it I do support.
Mr. Conyers. Mr. Fein, how can we help him sleep more
comfortably in his bed at night? How can we help Mr. Woods? How
can we fix this thing up?
Mr. Fein. Well, I think what is needed to try to test
whether or not Mr. Woods' anxieties are justified is, maybe in
executive session, you need people to say we could not have
gotten this NSL, if there was a specific and articulable facts
standard, and to show whether that is more a theoretical or a
practical problem.
Because remember, this element, there is a backup here. If
you want to go just for the relevant standard, which was the
situation before, have a grand jury do it. Grand juries can
investigate, as Mr. Kris pointed out, on virtually anything.
But you have the check, one, it is more in the sunshine, and
second, it is an independent branch of government that does
that.
And this is the reason why you would want to keep the
specific and articulable standard in, is because then you
create an incentive to use more of the checks-and-balances
approach than the unilateral approach. That is why the Supreme
Court has explained the rule is a warrant rather than any
exceptions, because you want to have an incentive to the police
to use the checks and balances where at all feasible.
That is what I would suggest.
Mr. Conyers. Thank you.
Mr. Jaffer. Mr. Conyers, could I add something to that?
Mr. Conyers. Of course.
Mr. Jaffer. I think that the reasonable and articulable
grounds standard is actually--it is a very low standard. And it
just asks the FBI to provide some sort of basis for its demand
for the records. It just asks the FBI to explain to somebody
why it needs the records it is asking for.
And I think that if the FBI cannot articulate why it needs
the records, then there is a very good question about why the
FBI needs the records, or whether it should be collecting the
records in the first place.
Mr. Conyers. How do you feel about that, Mr. Fein?
Mr. Fein. I think that is accurate. And I think there is a
similar situation that arose in the U.S. Supreme Court, the
case out of Michigan, U.S. v. U.S. District Court case. I was
there at the Department of Justice at the time. It was a claim
made by then-Attorney General John Mitchell, that in domestic
national security situations, you did not need any judicial
warrant, because it was too complex to explain national
security issues to judges.
And the court unanimously said, that is nonsense. Maybe the
reason you cannot articulate a national security dimension is
because it is not there. And the court ruled no, if you have
some genuine belief that something mischievous is afoot, you
should be able to articulate it.
And I think that is exactly applicable to this standard
here.
Mr. Conyers. Now, Mr. Kris, it is your turn.
What is the reluctance, the genuine reserve that you hold
back on the Nadler-Conyers-Scott approach?
Mr. Kris. Well, I think I am somewhere in the middle here
between these various witnesses.
Mr. Conyers. Well, that is a good place to start.
Mr. Kris. Yes, you know, just consider me the lukewarm
water inbetween the fire and the ice.
First, I agree with Mr. Fein that an executive session
might be helpful here, because I think these kinds of
discussions in the abstract can devolve rapidly into angels on
the head of a pin. These words in a vacuum are very hard to
sort of get a feel for.
I, based on my now substantially outdated operational
experience, have some doubts about the specific and articulable
facts relating the records to a foreign power or an agent of a
foreign power. I am not sure I would go quite as far in opening
it up as Mr. Woods.
Again, I think here the standard that ought to apply is the
same standard, essentially, that applies under FISA. The
information should be essentially a subset of foreign
intelligence information--information that is relevant to our
ability to protect against these threats. I think that is where
the agents ought to be focused at all times.
And so, I think that is probably the right way to go. But
again, I would want to have this discussion where you could
really get some hard facts and some concrete examples going
around.
Mr. Conyers. Absolutely. Then you might go from lukewarm to
warm. Yes. All right.
Thank you very much, Mr. Chairman.
Mr. Nadler. Thank you.
I now recognize the gentleman from Virginia for 5 minutes.
Mr. Scott. Thank you.
Mr. Fein, I was intrigued when you said that the judge will
decide when you have a warrant. Well, the judge, really, does
not really decide, because that assumes he has got both sides
of the forum. It is an ex parte decision. He makes a decision
based on only one side presented, but I guess that is a
decision.
But let me ask you about checks and balances generally.
You know, I always thought checks and balances, as I
indicated to the previous panel, checking with another branch
of government. What is wrong with checking with just
subordinates to see if you are doing a good job?
Mr. Fein. Like putting the fox in charge of the chicken
house.
The problem is that everyone knows that you are on a team.
As part of the executive branch, I was. And you are expected to
fulfill the mission of the team. And there are a thousand ways
that are undetectable that someone can lose promotions, can be
otherwise marginalized in their jobs, given the equivalent of a
transfer to Butte, Montana, if they come up with an opinion
that is not liked.
And that is just what human nature is about. That is why we
do not let people be judges in their own case. Why do you have
the executive branch being the judge in its own case here?
And we know the problems that can be created. You know
that, because the issues concerning a device, as to the
legality of waterboarding, now the department takes the
position, we told the CIA interrogators this was legal. Then,
if they follow it, we cannot get at them, because we are the
final say on this.
And it is a very incestuous, what I would call an
intellectually endogamous situation. And that is not the way
you get reliable judgments. No one is infallible.
And the situation with regard to a judge ex parte deciding
on warrants, it is true. He only hears one side, but he does
not have a benefit like someone in law enforcement, that he
gets promoted if there is an arrest made or not.
That is why, even though it is not a perfect system, it is
superior to the unilateral action.
Mr. Scott. And why is the necessity for an outside check
and balance even more important in this case, when you have the
relevance to an investigation--what is the standard on these
NSL--what standard are you using?
Mr. Fein. Sir, with the current statute it is the relevance
to a terrorist investigation, which is rather broad.
Mr. Scott. Well, you know it covers some stuff that needs
to be covered. Where is the limitation?
I mean, you could almost investigate anything using that
standard, it seems to me.
Is there any limitation? I mean, what is terrorist? What is
relevant? Whose records?
Mr. Fein. Well, I think you are pointing out the
elusiveness of a relevance standard with regard to terrorism.
You can try to connect dots all around the world. It is
conceivable that something that looks innocuous 99,000 out of
99,001 times maybe turns up something, so maybe you are looking
for something that is relevant. That is why it is so open-
ended.
And if it is going to be that broad, the way in which we
traditionally have a check is through grand jury and then the
sunshine aspect after the fact, where abuses could be exposed.
Mr. Scott. Any definition of what a terrorist investigation
is?
Mr. Woods?
Mr. Woods. Don't forget, these National Security Letter
statutes were intended and make explicit reference to the
attorney general guidelines, which are now called the
guidelines for national security investigations, which define
in great detail--unfortunately, classified detail--the
standards for opening investigations, the definitions
applicable to----
Mr. Scott. Well, you know, that is kind of--the attorney
general makes up his own guidelines, and he can investigate
what he wants.
I mean, we have in the back of our minds the fact that we
have not gotten a good answer to the allegations that they
fired U.S. attorneys for failing to indict Democrats in time to
affect an upcoming election. And these are the people who are
writing their little guidelines to get at things they want.
You are getting information on people who are not charged
with a crime.
Mr. Woods. Well, the guidelines are intended to cover the
collection of intelligence, which often does involve that.
Intelligence officers, for example, working in this country,
often go out of their way not to commit crimes, but yet, need
to be surveilled, terrorist cells----
Mr. Scott. Now, if it is relevant to the investigation, you
are getting information on the secrets of people who are not
even charged with a crime, if you say that information might be
relevant to somebody else's criminal activity.
Mr. Woods. As you would in a criminal investigation, yes.
Mr. Scott. With a warrant.
Mr. Woods. With a National Security Letter, as you would
use a grand jury subpoena----
Mr. Scott. A grand jury, you have got two different
branches of government working at that point.
Mr. Woods. In theory.
Mr. Scott. And see, this is why we like a little oversight
from somebody other than the one doing the chasing.
Mr. Woods. I am not disagreeing on the point about
oversight. I think there does need to be oversight outside the
executive branch. And we have struggled with this. Congress has
struggled with this for years in regulating intelligence
operations. And it is difficult to do that.
But we do need it ultimately in the statute. I would favor
it.
Mr. Scott. Well, if just I could comment, Mr. Chairman,
that is why we have a FISA Court kind of in secret, at least
looking over the proceedings. That is all ex parte. But at
least you have got somebody in another branch of government
watching what is done with these vague standards, and somebody
that has the authority to put an end to it, if they are going
into areas that are more shenanigans than investigation.
Mr. Jaffer. Mr. Scott, could I just add to that?
I actually think we have direct--we have direct evidence
that judicial oversight in this area would be effective in a
way that internal executive branch oversight is not. And I am
thinking of the two cases that the ACLU brought challenging
National Security Letters, one served on a library organization
and the other one served on a John Doe organization.
In both of those cases, the FBI served an NSL, and then
once we brought the challenge, the FBI made the decision,
rather than defend the NSL before a judge, to drop the NSL. So,
the FBI made the decision initially that the information was
necessary. But when there was the threat of judicial review,
the FBI backed down.
I think that shows that judicial oversight is effective in
a way that executive branch oversight alone is not.
Mr. Fein. Can I also add, Mr. Scott, that the need for an
outside check of the National Security Letters is greater now
than it would have been earlier, because Congress, given the
status of the claims of executive privilege and state secrets,
is not and cannot exercise oversight, because you repeatedly
encounter the claim, ``Can't show you this. Executive
privilege.'' That is why the FISA oversight is a joke.
And if this body cannot, through the customary hearing
process and oversight, impose a check after the fact, all the
more need at the outset to have some other branch--here, the
third branch of government--be involved in some way.
And I want to underscore, this is not an effort to handcuff
investigations. It is saying, be muscular, but do it with
checks and balances, because abuse is what happens with
unilateral, unchecked power.
Mr. Nadler. The gentleman's time is well expired. We are
going to have a second round of questioning, however, so he
will be able to come back to these gentlemen, if he wishes.
I will now yield myself 5 minutes for further questioning.
Mr. Woods, I wanted to explore some of the distinctions you
were drawing. On the one hand, you said that the particular--
what was that--particularly the articulable fact standard is a
two----
Mr. Woods. Significant and articulable fact.
Mr. Nadler [continuing]. Significant and articulable--
whatever it is, it is too--specific and articulable facts--it
is too specific. So, I think it is too difficult.
Mr. Woods. Yes.
Mr. Nadler. Okay. On the other hand, the relevance
standard, especially when you are talking about a preliminary
investigation where there is basically nothing there, seems to
be completely and totally open-ended.
Could you think of some standard that might meet your
practical problems, that would give us some protections that
the relevance standard does not? Might we look for some other
standard?
Mr. Woods. Yes. Sure. I actually think that what Mr. Kris
is talking about in terms of foreign intelligence information,
and by importing that language from the FISA, is quite a
reasonable requirement.
Mr. Nadler. What language is that?
Mr. Woods. Well, what he is citing is the definition of
foreign intelligence information drawn from the FISA statute.
And it basically says, this is the kind of information that is
relevant----
Mr. Nadler. Okay.
Mr. Woods [continuing]. To the section of the national----
Mr. Nadler. Thank you.
Mr. Fein, you look as though----
Mr. Fein. I cannot sustain that. Number one, if you look at
the definition of national security or foreign intelligence
information, it includes everything under the sun. The bank
reserves in Hong Kong, you know, trade flows--that sort of
thing. It is very open-ended.
And the second thing that is clearly different in FISA is
that, under the standard before the Protect America Act, and I
guess which has been expired, you still need probable cause to
believe that your target was a foreign agent or----
Mr. Nadler. Whereas you do not need probable cause here.
Mr. Fein [continuing]. Some lone ranger terrorist.
And there is not any such limitation with regard to the
NSL.
Mr. Nadler. Mr. Jaffer, do you think there is any validity,
first of all, to Mr. Woods' being upset with the significant
and particular standard? And if there is, do you think we could
come up with some other standard without going all the way over
to relevancy, which seems to be no standard at all?
Mr. Jaffer. I think that, again, that the reasonable and
articulable grounds standard is a very low standard. It is not
probable cause. It just requires an articulation of a reason
why the records are necessary.
And again, I think if the FBI cannot articulate that, it
should not be collecting the information.
Mr. Nadler. Very good.
Mr. Jaffer. I think that the fact that it is issuing
200,000 NSLs over a 4-year period shows you how widely that
power will be used, unless there is a real limit placed on it.
Mr. Nadler. Thank you.
Mr. Woods, I want to explore something else you said. You
mentioned with respect to a different provision of the bill,
that essentially says, if I recall correctly, that you cannot
use material--information, I should say--gathered under the
foreign intelligence provisions in a prosecution. You separate
the law enforcement. You said that that was--what we have done
pre-9/11 is a real problem.
My question is the following. The fourth amendment says you
cannot wiretap or get certain information without a warrant and
probable cause. Now we come along and say, but wait a minute.
The fourth amendment was dealing with criminal prosecutions,
but we now have a problem with foreign spies, or with
terrorists, or whatever.
In order to fight the war against terrorism, or against
Soviet spies, or whoever, we will have a lower standard that
does not meet the fourth amendment. But we will not use this
for criminal prosecutions. We will only use it to protect
ourselves. And that is how we have FISA and some of the
provisions here.
If you then said, but we certainly cannot use that
information, that we gathered by a lower standard than the
fourth amendment standards and the probable cause standard, we
cannot use that in prosecutions.
Two questions. One, has that compromised national security,
because we can use it in national security investigations? And
two, even if it did compromise national security, how could we
use it in criminal prosecutions without violating the fourth
amendment by definition?
Mr. Woods. And your question reveals the reason for it.
Mr. Nadler. Well, let me just say, because it seems to me
we have it backwards. That to say that we could not use
criminal investigation-derived information for national
security would endanger national security. But to say that we
cannot use national security information in a criminal
prosecution, I do not see how that would endanger national
security.
Mr. Woods. We have to start with FISA, as you sort of laid
it out. And this prohibition of sharing FISA-derived
information freely with criminal prosecution derives from the
fact that the standards are different.
The standards on FISA are actually not lower than the
criminal standards, they are different. They comply with the
fourth amendment, the reasonableness standard of the fourth
amendment. That is the whole, you know, line of court cases
that come from (INAUDIBLE).
But it is not probable cause that a crime has been
committed. It is probable cause that a person is an agent of a
foreign power.
And so, if you want to construe that as lower, it is very
vital, then, that that is not sort of fed wholesale into the
criminal process. That is why the distinction is there in FISA.
The difference here is, FISA is dealing with full-blown,
fourth amendment-protected content. Okay. It is stuff that is
surveillance----
Mr. Nadler. NSLs, or not.
Mr. Woods. NSLs, or not. We are talking--it seems to me
that one of the problems with the discussion is, you know, the
level of protection and the complexity of the protection will
vary, depending on the level of intrusion involved and what is
being protected.
Now, where you have content, the government entering your
house and searching your papers, the government----
Mr. Nadler. Transactional is not as protected as content.
Mr. Woods. Correct. And this is, if I could tell you the
whole history of National Security Letter legislation, it is
kind of the neglected stepchild of FISA. No one paid much
attention to it. That is why the statute----
Mr. Nadler. We are trying to remedy that now.
Mr. Woods. And so, there is a lot of work that needs to be
done to this. But I do not think we need to build it into a
replica of FISA for us to achieve----
Mr. Nadler. But you still did not answer my key question.
Mr. Woods. Okay.
Mr. Nadler. How does saying that information gleaned from
National Security Letters, issued under whatever standards they
are issued, can be used for national security, but cannot be
used for criminal prosecution? How does that endanger national
security?
Mr. Woods. Well, for one thing, you need to do something
with that information--I mean, we need to prosecute the
terrorist, or the spy, in some situations. So we need to
transfer it from the national security environment into the
terrorism--sorry--into the criminal environment, if there is a
prosecution.
But second, if I, through the use of National Security
Letters, develop, say, information about a terrorist threat,
and I want to disseminate that to the people who are the first
responders, the State and local law enforcement, is that
dissemination to law enforcement?
Well, it is, even though it might not--you know, could that
information find its way into a criminal prosecution? That is
the issue that is raised.
Mr. Nadler. Thank you.
Would Mr. Fein and Mr. Jaffer comment on that?
Mr. Fein. Number one, at least at present, oftentimes
people are detained without trial. Just go to Guantanamo Bay.
And the President can detain U.S. citizens as enemy combatants,
and they never have a trial.
So, the idea that you have to have a trial to do something
certainly is not the standard that this Administration
employes.
Secondly, what is it that you can do with that national
security information? You can thwart the plot. You do not have
to have a criminal prosecution. It is oftentimes said by this
Administration, especially, you do not want law enforcement to
be backward looking. You want it to be forward looking.
So, you can foil the plot in ways that do not require----
Mr. Nadler. So, you are agreeing that, if you can use that
information to foil the plot, then not giving it to law
enforcement for prosecution is not a problem.
Mr. Fein. It does not prevent the safety to the Americans
that comes from preventing the terrorist act.
Now, we could call it a problem in the sense that, if you
want to have and ease their way to publicize how well you are
doing in criminal prosecutions, that would be useful. And
moreover, there may be a difficulty, if you thwart a plot and
you do not have them in prison, that they could then return to
that particular fray----
So I do not want to say there is no difference. But
certainly, the main idea that is promoted, that you need the
intelligence to prevent the crime, not prosecute it, certainly
is not disturbed.
Mr. Nadler. Thank you very much.
Once again, I have gone over my 5 minutes, and the
gentleman from Arizona is recognized for a very flexible 5
minutes.
Mr. Franks. Well, thank you, Mr. Chairman. You are always
kind in that regard. I wish we could figure out a way to bring
that into philosophical terms here.
Mr. Chairman, I guess, first of all, when we are gathering
information that law enforcement--it is just information that
is out there--I think it is very important to make this
distinction. We know that, like Pseudofed and some of these
other kinds of over-the-counter drugs can be purchased and then
used to make other kinds of drugs that are very, very
dangerous.
If someone goes into the drugstore, they have a right to
have privacy about what kind of drugs they buy. But if they buy
400 boxes of Pseudofed, that might cause law enforcement
eyebrows to go up.
And if we make that to where that the law enforcement--
before he can even gather that information to even look at it--
to be something that would go through the standard process of
probable cause, I mean, we would never get anything done. The
policemen would have to go around with their eyes closed.
And I just think it is very important, as someone who
believes so strongly in the foundational, constitutional
principles, to make sure that we apply them in the correct way.
And Mr. Fein, in all due respect, I do not think there are
any American citizens at Guantanamo. And, you know, we have got
to be careful how we throw these things around.
If we apply constitutional rights to terrorists that we
fight in the, say, the outland of Afghanistan, and we have got
to read them their rights before we arrest them, that would
pretty much do away with any ability for us to fight a war on
terror. And so, we have to be somewhat practical minded here,
while in keeping with the basic foundations of justice.
With that said, you know, there was a time when Congress
was trying to do this in the PATRIOT Act. And when this PATRIOT
Act was debated in Congress, and they changed the standard for
NSLs from requiring a government statement of specific and
articulable facts to one of relevance, they did so after
carefully considering the FBI supplies of examples from actual
operations.
And even Senator Patrick Leahy, the Democratic Chairman of
the Senate Judiciary Committee, found that--this is Patrick
Leahy that said, ``And the FBI has made a clear case that a
relevant standard is appropriate for counterintelligence and
counterintelligence investigations, as well as for criminal
investigations.''
Now, Mr. Leahy is not my mentor, so I do not suggest that
you all go out and follow his perspective in every case, but it
should be something maybe for the Democrats on the Committee to
consider.
So, with that, let me ask Mr. Kris, if I could. H.R. 3189
provides that, ``No information acquired by a National Security
Letter 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 advanced authorization
of the attorney general.''
Do you support that provision? And if you do not, why not?
Mr. Kris. I mean, first of all, let me just say that that
is not a prohibition on the use of NSL-derived information in a
criminal prosecution. I sympathize with what I understand to be
the rationale behind that, which is the same as the rationale
behind the corresponding language in FISA, which is that you do
not want accidental disclosure through localized criminal
prosecution of information that reveals a national security
investigation, which has to be kept secret for longer than
might otherwise occur.
And I am in favor, I think, within the context of these, by
definition, national and international investigations of some
kind of centralized monitoring, because they are not just local
problems the way some street crime, for example, is.
Having said that, given the volume of National Security
Letters--some 50,000 a year--it might be a bit steep to ask the
attorney general each time to approve the way he does, or she
does, in respect to FISA applications, where there are only
about 2,000 a year.
So, I mean, I sympathize with the idea behind it. I am not
sure that it would be administrable. And it may be better to
get at the same issue through minimization procedures, which
are also part of 3189, and which I do strongly support.
Mr. Franks. The bill would also raise the standard for the
government's access to business records in terrorism
investigations by requiring that the government show ``specific
and articulable facts, giving reason to believe that the
information or records sought by that NSL would pertain to a
foreign power or an agent of a foreign power.''
Mr. Kris. Yes, as I say, I think I am sort of the lukewarm
water on that. I have some concerns about that language. And I
do think that the use of the definition of foreign intelligence
information is right.
And I just want to point out, foreign intelligence
information has two separate subsections. The one that Mr. Fein
referred to with respect to Hong Kong banking information is in
a second and different subsection than the one we have been
talking about, which is, I think, rather rigorously defined to
be information that relates to the ability of the United States
to protect against sabotage, international terrorism,
espionage, attack and other array of hostile acts, carried out
by foreign powers or agents of foreign powers.
I mean, this is a standard that has some meat on the bones.
And I think it would be a reasonable way to go. And it has the
advantage--as compared, say, to the current reference to the
A.G. Guidelines, which are classified--that it refers to
statutory language with definitional subsections that are
pretty well known and could be discussed and debated publicly,
at least in the abstract.
Mr. Franks. Mr. Chairman, I do not know if there is time
for Mr. Woods to say a word on that.
Mr. Woods. I think the point I would make about sharing
with law enforcement information--and Mr. Kris makes some
excellent points on the relationship to FISA. But we have to
also consider this in the context of our homeland security and
counterterrorism strategy.
If I have information, threat information about something
that would occur in New York City, criminal prosecution is not
the first thing on my mind. The first thing I want to do is
tell the NYPD.
Now, if I have to worry about, you know, is this piece of
paper or e-mail that I am sending to the NYPD, does that
contain National Security Letter information? If so, do we need
to go to the attorney general first?
I would just say, on the basis of practical experience,
that backs up the system, and you get the situation in which
that stuff is not disseminated the way I think all of us would
want it to be disseminated.
And I think that is not the intent of the statute, but that
is an effect. That is what I am concerned about.
Mr. Nadler. Would the gentleman yield to me for a----
Mr. Franks. I would. Yes, sir.
Mr. Nadler. Thank you.
Mr. Woods, following up on what you were just saying, if
you have information about a plot in New York, and you want to
disseminate that information to the NYPD for helping prevent
it, is that for law enforcement purposes?
Mr. Woods. Well, in one sense it is not. And you would say,
well, that is not a problem. But our experience with FISA
information was, if you are disseminating it to a law
enforcement organization, that is dissemination to law
enforcement.
It is dissemination that, once it is in that organization,
it could come back in the form of--it could be used in an
affidavit somewhere. It could go into the process. So, the
position always was that, before you give it to the law
enforcement organization, you have to clear it for law
enforcement purposes.
Mr. Nadler. So, would you be happier if the provision said
essentially the same thing, that you cannot disclose it for law
enforcement purposes, except for antiterrorism prevention
purposes, or something like that?
Mr. Woods. I think you could craft some language to deal
with the threat dissemination--the dissemination of threat
information, that would probably solve this problem. I think
that would be a very wise thing to consider.
Mr. Nadler. Thank you. I yield back, and I thank the
gentleman.
Thank you.
I now recognize the gentleman from Virginia.
Mr. Scott. Thank you.
I think all the witnesses have indicated that the term
``foreign intelligence'' includes fights against terrorism. Mr.
Fein has also suggested that it includes a lot more than that.
Let me just ask on terrorism, Mr. Kris, you indicated that
terrorism--does it have to be related to a State-supported
terrorist? Or can you have a free, kind of a loosely organized
group of terrorists that are not State supported? Would they be
included in all of this?
Mr. Kris. Yes. Non-state-supported terrorism would be
included. FISA's legislative history is pretty clear in saying
you could have the Larry, Moe and Curly terrorist organization.
I mean, three guys who are actually engaged in terrorism would
be a terrorist group.
Mr. Scott. Okay. Now, you indicated two sections. When we
talk about foreign intelligence for the purpose of National
Security Letters, are both sections of the foreign
intelligence, the terrorism part and the trade deal part, are
both of them subject to National Security Letters?
Mr. Kris. Well, you mean currently, or what I think should
be?
Mr. Scott. Both.
Mr. Kris. Well, currently, it depends on--you know, there
are several different NSL statutes. And it depends on which
statute. But most of them are focused on international
terrorism, most of the broad ones. So, they would not include
the so-called affirmative foreign intelligence, the banking
sort, if you want, or the foreign trade stuff.
My own view is--but then there are some statutes that do
refer to the foreign trade, as long as it does not concern a
U.S. person. So that basically, what some of the----
Mr. Scott. But what is concerning, if it is relevant to a
foreign intelligence investigation, you are getting information
relevant to that investigation, can you not get information,
records pertaining to an innocent United States citizen?
Mr. Kris. Well, you may, but----
Mr. Scott. That is what the whole NSL letter is about,
isn't it?
Mr. Kris. I may be messing this up by causing more
confusion than I am resolving.
But in current law, there is a distinction between this
protective information, the information you need to fight
against terrorism and all these other threats, and affirmative
foreign intelligence information, the sort you want to get when
we are spying on them, for example, trying to get trade-related
information, or what have you.
And by and large--there are a number of different laws, so
I do not want to make an absolute blanket statement--by and
large, the second category of affirmative foreign intelligence
information in this context has to be information that does not
concern a U.S. person. So, it might be, for example----
Mr. Scott. So, using that section, where you--the trade
deal section----
Mr. Kris. Yes.
Mr. Scott [continuing]. You cannot get information
pertaining to an innocent United States citizen.
Mr. Kris. Or any, guilty or innocent.
Mr. Scott. With an NSL.
Mr. Kris. I mean, at least under the standard that I am
talking about, I----
Mr. Scott. Is this should be, or is?
Mr. Kris. Well, it is what I propose, yes. And it also has
a basis in current law. But there are several different
provisions of current law that have different standards, so I
want to be careful----
Mr. Scott. Is there any provision in present law where you
can get information, records of an innocent United States
citizen, pertaining to an investigation--a trade deal type
investigation, foreign intelligence--where you can get
information on an innocent United States citizen?
Mr. Kris. I don't think so, sir, but I mean, I----
Mr. Scott. Does anybody want to comment?
Mr. Fein. I think at least under FISA--now, that is not a
national security----
Mr. Scott. Right. Well, FISA, you have got a judge looking
at it, which you have some protection.
Mr. Fein. Yes.
Mr. Jaffer. Mr. Scott, could I just jump in on this whole
discussion?
I may be misunderstanding Mr. Kris' proposal, and if I am,
I apologize in advance. But if the proposal is simply to
replace the current--or effectively to replace--the current
relevance language in the NSL statutes with the language that
is in the foreign intelligence definition, which uses the
phrase ``relates to,'' I am not sure that actually solves any
of the problem that at least the ACLU is concerned about.
It does not solve the problem that the FBI can go on
fishing expeditions and collect information about innocent
people, many degrees removed from actual suspects. And it does
not in itself solve the oversight problem, either.
Mr. Scott. Well, let me try to get in another question.
Is there any difference of the information you can get
under FISA--anything you can get under FISA that you cannot get
under--with a National Security Letter, or vice versa?
Mr. Jaffer. Yes.
Mr. Scott. What can you get----
Mr. Jaffer. Well, under FISA you can get all kinds of
information. You can get records relating to fourth amendment
activity. You can get phone calls. You can get the content of
phone calls. You can get e-mails.
But National Security Letters, you can get a narrower class
of information.
Now, the fact that it is a narrower class does not mean
that it is a non-sensitive class or a not constitutionally
protective class. But it is nonetheless a narrower class of
information than is available to the FBI through FISA.
Mr. Nadler. Has the gentleman concluded?
Mr. Scott. Not really. But if you insist, let me ask
another question. [Laughter.]
Mr. Nadler. Without objection.
Mr. Scott. If you find information on an innocent United
States citizen in one of these investigations, what happens to
that information if it turns out not to be relevant to the
investigation?
Do you keep that information? Do you turn it over to--if it
turns out not to be relevant, can you have a collateral
criminal case?
Mr. Jaffer. I think that the OIG has documented that the
information--at least the practice has been--to keep some of
that information. That is one of the problems that the
Inspector General identified.
Mr. Scott. But let me say, if you have got somebody with a
terrorist trying to bomb something, and you find out somebody
unrelated--that you thought might have been related was
unrelated, but you tripped over some drug use, can you have a
criminal investigation of that drug use?
And can you backdoor investigate drug use with these NSLs
using foreign intelligence as a pretext? Can you run a criminal
investigation without probable cause, just out of suspicion,
not probable cause, then you know he is dirty. And so, let us
do a little pretext and call it one of these foreign
intelligence investigations, and see what we trip over?
Mr. Fein. Well, that would seem to me to violate the act,
if you could ever get inside someone's head and be able to
prove that this was a pretense all along. Other than
confessions, I doubt whether that is something that would ever
be detected. Certainly, it is a possibility.
Mr. Scott. Well, we changed the standard from primary
purpose to----
Mr. Fein. Significant purpose.
Mr. Scott [continuing]. To a significant purpose, which
suggests that if it is significant, not primary, it invites the
question, well, what was the primary purpose. And in fact, the
attorney general, in one answer to the question, blurted out
criminal investigation without probable cause--he did not say
without probable cause, but that is what he meant.
Mr. Fein. That is exactly what the danger is of lowering
the standard, is you get the criminal investigation to
piggyback on an intelligence investigation, and not subject to
the same constraints.
Mr. Scott. Without the burdensome requirement of having
probable cause before you start delving into people's personal
papers.
Mr. Fein. Exactly.
Mr. Woods. A criminal investigation can be initiated
without probable cause. Criminal investigation can obtain
materials that we have been talking about--transactional
materials--without probable cause through the use of the grand
jury subpoena.
The requirement of probable cause only attaches when I
would execute a search warrant or do electronic surveillance in
a criminal investigation to get to that level.
The same hierarchy applies in intelligence investigations.
You know, I would use a National Security Letter, which is not
a probable cause instrument, to get transactional information.
I would use the FISA to conduct a search warrant or use
electronic surveillance for these purposes.
It is very hard--and part of the definition that Mr. Kris
has been talking about of foreign intelligence information, the
purpose of that definition is to prevent FISA, the surveillance
and search authority, to be used as a subterfuge for criminal
investigations.
So, regardless of whether it is significant purpose or
primary purpose in FISA, it still has to be for the collection
of foreign intelligence.
Mr. Scott. Yes, but if it is a significant purpose, but the
primary purpose is really trying to catch somebody that you
knew was dirty, but you could not initiate a criminal
investigation, because you did not have probable cause to start
searching his house, but can--with an NSL and all of these
other things--can do a foreign intelligence investigation and
backdoor, because you do not have the probable cause problem,
get subpoenas and warrants to start searching somebody's house.
Mr. Woods. But I cannot. I cannot under FISA. I have to
convince a judge to get a warrant that I am--that this person
is an agent of a foreign power.
Now, if the question is, can I use the NSLs, because that
does not require a judge, then I--you know, the restraint
there--and this is something we have already----
Mr. Nadler. The time of the gentleman has expired. All time
has expired.
I want to thank you, and I want to thank our witnesses for
their testimony.
Without objection, Members will have 5 legislative days to
submit any additional written questions for the witnesses,
which we will forward, and ask that you answer as promptly as
you can, to be made part of the record.
Without objection, the record will remain open for 5
legislative days for the submission of any other additional
materials.
And again, thanking our witnesses, the hearing is
adjourned.
[Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]
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