PDF Version

                                OF 2007



                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                               H.R. 3189


                             APRIL 15, 2008


                           Serial No. 110-96


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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
MAXINE WATERS, California            DANIEL E. LUNGREN, California
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

            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
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
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


                             APRIL 15, 2008


                           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


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 
  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


               Material Submitted for the Hearing Record

H.R. 3189, the ``National Security Letters Reform Act of 2007''..   132



                        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 
    Welcome, everyone.
    Without objection, the Chair is authorized to declare a 
recess, which the Chair will do when they call votes on the 
    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 
    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 
    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 
    Would give notice to the target of an NSL if the government 
seeks to use the records obtained from the NSL in a subsequent 
    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 
    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Scott. And this is the same agency, though. They are 
employed by the same agency.
    Ms. Caproni. Well, they are Department of Justice 
    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 
    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 
    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 
    You may be seated.
    We will now call upon the first witness for 5 minutes.
    Mr. Jaffer?


    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


    Mr. Nadler. I thank the gentleman.
    And I now recognize Mr. Fein for 5 minutes.

                     DEPARTMENT OF JUSTICE

    Mr. Fein. Thank you, Mr. Chairman and Members of the 
    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. 
    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 
    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. 
    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.


    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 
    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 
    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 
    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




    Mr. Nadler. I thank the gentleman.
    I now recognize Mr. Kris for 5 minutes.


    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 
    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


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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-
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    And again, thanking our witnesses, the hearing is 
    [Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


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