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                            USA PATRIOT ACT



                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                           SEPTEMBER 22, 2009


                           Serial No. 111-35


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California

       Perry Apelbaum, Majority 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

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel

                            C O N T E N T S


                           SEPTEMBER 22, 2009


                           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 F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     5


Mr. Todd M. Hinnen, Deputy Assistant Attorney General, National 
  Security Division, U.S. Department of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Ms. Suzanne E. Spaulding, former Staff Director, House Permanent 
  Select Committee on Intelligence
  Oral Testimony.................................................    28
  Prepared Statement.............................................    31
The Honorable Thomas B. Evans, Jr., a former Representative in 
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49
Mr. Kenneth L. Wainstein, former Assistant Attorney General, 
  National Security Division, Department of Justice
  Oral Testimony.................................................    53
  Prepared Statement.............................................    56
Mr. Michael German, Policy Counsel, American Civil Liberties 
  Oral Testimony.................................................    62
  Prepared Statement.............................................    64


Material Submitted for the Hearing Record........................   113

                            USA PATRIOT ACT


                      TUESDAY, SEPTEMBER 22, 2009

              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 11:15 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Johnson, 
Sensenbrenner, Rooney, King, Gohmert, and Smith.
    Staff Present: David Lachmann, Majority Subcommittee Chief 
of Staff; Stephanie Pell, Detailee (DOJ); Caroline Lynch, 
Minority Counsel; and Turner Letter, Staff for Ranking Member 
    Mr. Nadler. The hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. We will begin with--I will recognize myself for an 
opening statement.
    Today's hearing gives the Members of the Committee the 
opportunity to review the USA PATRIOT Act, three provisions of 
which are scheduled to expire later this year. These three 
provisions--dealing with roving wiretap authority; expansion of 
definition of an agent of a foreign power to include so-called 
lone wolfs; and section 215, which allows the government to 
obtain business records using an order from the Foreign 
Intelligence Surveillance, or FISA, Court--have aroused a great 
deal of controversy and concern.
    While some have argued that each of these authorities 
remain necessary tools in the fight against terrorism and that 
they must be extended without any modifications, others have 
counseled careful review and modification. Some have even urged 
that we allow some or all of these authorities to sunset.
    Additionally, I believe that we should not miss the 
opportunity to review the act in its entirety: to examine how 
it is working, where it has been successful, and where it may 
need improvement.
    For example, I have introduced for the last few years the 
National Security Letters Reform Act, which would make some 
vital improvements to the current law in order better to 
protect civil liberties while ensuring that NSLs remain a 
useful tool in national security investigations. And section 
215 must be amended to conform to the changes we seek to make 
to the NSL provisions.
    I have long believed that civil liberties and national 
security need not be in conflict, and I hope to work with my 
colleagues to strike that balance in a responsible and 
effective manner.
    We have some outstanding witnesses today with a great deal 
of experience and knowledge in this area. I am especially 
pleased that the Administration has sent a witness to assist 
the Committee in its work and to explain the Administration's 
    I would note that Mr. Hinnen's testimony states at the very 
outset, and I think it merits repeating, that the 
Administration is, quote, ``ready and willing to work with 
Members on any specific proposals we may have to craft 
legislation that both provides effective investigative 
authorities and protects privacy and civil liberties,'' close 
    Whatever disagreements we may have on any particular 
provision or approach, I want to note that this attitude is a 
refreshing break with recent practice. We take the 
Administration at its word, and I, for one, intend to hold it 
to that. I look forward to working with the Administration and 
with my colleagues to craft legislation that protects our 
national security and our fundamental values.
    I look forward to the testimony, and I thank our witnesses 
for being here today.
    I yield back. And I now recognize the distinguished Ranking 
Member of the Subcommittee for 5 minutes for an opening 
    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    Two weeks ago, this country honored the 3,000 innocent 
people killed in the 9/11 terrorist attacks. In 100 days, the 
tools to prevent another horrific attack on America will 
expire. While I appreciate the Chairman holding this hearing 
today, it is long overdue. Congress must reauthorize the 
expiring provisions of the PATRIOT Act before December 31st of 
this year, and the clock is ticking.
    In 2001, the USA PATRIOT Act was passed with wide 
bipartisan support. And in this Committee, I would remind the 
Members and everybody else that we spent a month considering 
it. We had two hearings, and we had a markup.
    In 2005, I again spearheaded the effort to reauthorize the 
PATRIOT Act. Recognizing the significance of the act to 
America's counterterrorism operations and the need for thorough 
oversight, this Committee held 9 Subcommittee hearings, 3 days 
of full Committee hearings, and completed its markup of the 
reauthorization all before the August recess--hardly a 
procedural rush job.
    I am deeply concerned that we are weeks away from 
adjourning this legislative session and we are now only 
beginning the process of reviewing the act.
    During a Senate confirmation hearing in January, Attorney 
General Holder said he wanted to examine the expiring 
provisions of the PATRIOT Act, talk to investigators and 
lawyers and get a sense of what has worked and what needs to be 
changed. In May, General Holder appeared before this Committee, 
and I asked him about the Department's position on 
reauthorizing the act. Again he said he needed to examine how 
the expiring provisions had been used and to gather more 
empirical information. He assured me that the Department would 
express its views with sufficient time to reauthorize the act.
    Just last week, the Obama administration finally made 
public its views on the three expiring provisions. I am 
dismayed as to why it took 9 months to assess just three 
measures, but I commend the Administration for recognizing the 
value of these important national security tools and rightly 
encouraging Congress to reauthorize each of them.
    The Administration has also promised to reject any changes 
to these or other PATRIOT Act provisions that would undermine 
their effectiveness.
    Of particular importance to me is the lone wolf provision, 
which closes a gap in the Foreign Intelligence Surveillance 
Act, that, if allowed to expire, could permit an individual 
terrorist to slip through the cracks and endanger thousands of 
innocent lives.
    When FISA was originally enacted in the 1970's, terrorists 
were believed to be members of an identified group. This is not 
the case today. Many modern-day terrorists may subscribe to a 
movement or certain beliefs, but they don't belong to or 
identify themselves with a specific terrorist group. Allowing 
the lone wolf provision to expire could impede our ability to 
gather intelligence about perhaps the most dangerous terrorists 
operating today.
    Section 206 of the PATRIOT Act authorizes the use of roving 
wiretaps for national security and intelligence investigations. 
The roving wiretap allows the government to use a single 
wiretap order to cover any communications device that the 
target uses or may use. Without roving wiretap authority, 
investigators would be forced to seek a new court order each 
time they need to change the location, phone, or computer that 
needs to be monitored. Director Mueller testified before the 
Committee in May that this provision has been used over 140 
times and is exceptionally useful for facilitating FBI 
    Section 215 of the act allows the FBI to apply to the FISA 
Court to issue orders granting the government access to any 
tangible items in foreign intelligence, international 
terrorism, or clandestine intelligence cases. The PATRIOT 
Improvement and Reauthorization Act of 2005 significantly 
expanded the safeguards against potential abuse of section 215 
authority, including additional congressional oversight, 
procedural protections, application requirements, and judicial 
review. According to Director Mueller, this provision has been 
used over 230 times.
    The terrorist threat did not end on September 11, 2001. 
Just last week, Federal authorities disrupted a potential al-
Qaeda bombing plot that stretched from New York City to Denver 
and beyond. It is time for this Committee to act. We must not 
allow these critical counterintelligence tools to expire.
    And I look forward to hearing from today's witnesses and 
yield back the balance of my time.
    Mr. Nadler. Thank you.
    I must say, I wish I was as confident as the gentleman from 
Wisconsin that this session has only weeks to go.
    I now recognize the distinguished Chairman of the full 
Committee, Mr. Conyers, for an opening statement.
    Mr. Conyers. Thank you, Chairman Nadler.
    And I wanted to thank Jim Sensenbrenner for his 
recapitulation of those days in the Judiciary Committee, where 
so much happened.
    I also am pleased to see Tom Evans, our former colleague 
from Delaware, back on the Hill.
    Now, the PATRIOT Act is nearly 8 years old. After many 
hearings and multiple inspector general reports of the use and 
abuse of this law, and after much work by scholars in the 
field, we have learned that, since this law was rushed through 
Congress in the weeks after the 9/11 attack--we have to recall 
this with some specificity.
    The hearings that then-Chairman Sensenbrenner referred to 
were leading up to a bill that was sent to Rules Committee that 
never got out of Rules Committee. And that bill that the 
Chairman and me, the Ranking Member, worked on so carefully was 
unanimously reported out of the House Judiciary Committee--
record vote. And then the bill went to the Rules Committee. And 
then-Chairman Dreier, under Lord knows whose instructions, 
substituted that bill for another bill that we in Judiciary had 
never seen.
    And so we come here today now to consider what we do with 
those parts that are expiring. And so I wanted to make a couple 
ideas, give you a couple ideas about what might have happened 
if the bill that we debated and voted out--and Chairman Nadler 
was there; Ranking Member Lamar Smith was there.
    And the bill that we voted out required that targets of so-
called roving wiretaps be identified in a FISA Court order to 
prevent the John Doe roving wiretaps that some experts and many 
commentators consider abusive. That was our bill--bipartisan, 
100 percent.
    Another feature of that bill required extensive and robust 
oversight of the executive branch's use of surveillance powers, 
which might have headed off the 2004 crisis at the Department 
of Justice caused by then-President Bush's warrantless domestic 
surveillance program.
    Also in the bill was a requirement for extensive reporting 
and certification requirements, and created clear avenues for 
people affected by PATRIOT Act violations to claim redress, 
which may have eliminated, or certainly simplified, the 
extensive litigation about the PATRIOT abuses that continue to 
this day.
    And, finally, the current Administration has recommended 
reviewing these provisions that are expiring, and they have 
supported their simple extension. I disagree. And I want to 
hear some more detail about these, especially the infamous lone 
wolf statute, which has never been used and which there is some 
question as to whether it is necessary at all.
    Now, the Administration has stated that the protection of 
privacy and civil liberties is of deep and abiding concern. And 
they are willing to work on legislation that provides effective 
investigative authorities the power they need but, at the same 
time, protects the rights and civil liberties and privacy of 
the people that are under investigation. And so I think it is 
critical that every Member of this Committee has accepted this 
invitation to work with the Administration.
    So now is the time to consider improving the PATRIOT Act, 
not to simply extend the three expiring provisions, which is a 
point of view that is no less valid than any other. But, 
please, Judiciary Committee, let's consider what we have done, 
let's consider what was done to us, and let's consider where we 
go from here.
    And I thank you for your time, Chairman Nadler.
    Mr. Nadler. I thank the Chairman.
    I now recognize for an opening statement the distinguished 
Ranking Member of the full Committee, the gentleman from Texas, 
Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    America is fortunate not to have experienced a terrorist 
attack since 2001, but we must not be lulled into a false sense 
of security. The threat from terrorists and others who wish to 
kill Americans remains high.
    In the 8 years since the attacks of September 11, 2001, al-
Qaeda and other terrorist organizations have continued their 
war against innocent civilians worldwide. In 2004, 191 people 
were killed in the Madrid train bombings. In 2005, 52 innocent 
civilians were killed when suicide bombers attacked the London 
subway. And last year, 164 people were killed in Mumbai by a 
Pakistan-based terrorist organization.
    Counterterrorism tools helped British and American 
authorities foil the 2006 plot to attack as many as 10 
airplanes flying from Great Britain to the U.S. Two weeks ago, 
three of the plotters were convicted of planning to blow up 
passenger planes using liquid explosives. According to British 
prosecutors, if the terrorists had been successful, they would 
have killed thousands of innocent passengers.
    In 2007, Federal authorities thwarted two terrorist 
attempts on U.S. soil: a plot to kill U.S. soldiers at the Fort 
Dix Army base and a plot to bomb JFK International Airport by 
planting explosives around fuel tanks and a fuel pipeline. 
Again, surveillance and investigative techniques saved lives.
    Many of these plots would not have been thwarted, the 
terrorists would not have been convicted, and thousands of 
lives would not have been saved without the PATRIOT Act. The 
PATRIOT Act gives intelligence officials the ability to 
investigate terrorists and prevent attacks. We cannot afford to 
let these life-saving provisions expire.
    Last March, I introduced the Safe and Secure America Act of 
2009 to extend for 10 years sections 206 and 215 of the U.S. 
PATRIOT Act and section 6001 of the Intelligence Reform and 
Terrorism Prevention Act of 2004, which were scheduled to 
sunset on December 31st.
    For years the PATRIOT Act has been subject to 
misinformation, rumors, and innuendos about how intelligence 
officials can use its provisions. As Congress once again 
considers these provisions, we must ensure that the debate is 
about facts, not fiction. The expiring provisions we are 
considering today are designed to be used only by intelligence 
officials investigating terrorists and spies in cases involving 
national security.
    Despite allegations that the PATRIOT Act is 
unconstitutional, these provisions have been upheld in court 
and are similar to those used in criminal investigations. The 
PATRIOT Act simply applies the same provisions to intelligence 
gathering and national security investigations.
    The director of the FBI, Robert Mueller, in testimony 
before the House and Senate Judiciary Committees earlier this 
year, urged Congress to renew what he called ``exceptional 
intelligence-gathering tools.'' The Obama administration 
decided last week that it agrees with Director Mueller and 
finally called for reauthorization of the three expiring 
PATRIOT Act provisions.
    America is safe today not because terrorists and spies have 
given up trying to destroy us and our freedoms. Just this past 
week, three individuals with links to al-Qaeda were arrested in 
connection with a plot to set off bombs in New York City. 
America is safe today because the men and women of the 
intelligence community use the PATRIOT Act to protect us.
    The threat to America from terrorists, spies, and enemy 
countries will not sunset at the end of this year, and neither 
should America's anti-terrorism laws. The PATRIOT Act works 
exceedingly well. If the PATRIOT Act expires or is weakened, 
American lives will be put at risk.
    Thank you, Mr. Chairman. I will yield back.
    Mr. Nadler. Thank you.
    [Disturbance in the hearing room.]
    Mr. Nadler. If you insist on talking, you will be escorted 
from the room. Sit down, please.
    Escort him from the room, please. Do we have a Sergeant at 
Arms here?
    [Disturbance in the hearing room.]
    Mr. Nadler. In the interest of proceeding to our witnesses 
and mindful of our busy schedules, I ask that other Members 
submit their statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing.
    We will now turn to our first panel of witnesses.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on the 
Subcommittee, alternating between majority and minority, 
provided that the Member is present when his or her turn 
arrives. Members who are not present when their turns begin 
will be recognized after the other Members have had the 
opportunity to ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    Our first panel consists of one witness. Todd Hinnen is the 
Deputy Assistant Attorney General for law and policy in the 
Department of Justice's National Security Division. Prior to 
rejoining the Justice Department, Mr. Hinnen was the chief 
counsel to then-Senator Joseph Biden, now Vice President, of 
    Mr. Hinnen served from 2005 to 2007 as the director for 
combatting terrorism at the National Security Council, where 
his responsibilities included coordinating and directing the 
United States Government's response to terrorist finance and 
terrorist use of the Internet.
    Prior to serving on the NSC, Mr. Hinnen was a prosecutor in 
the Department of Justice's computer crimes section and a clerk 
for the Honorable Richard Tallman, United States Court of 
Appeals for the Ninth Circuit.
    Mr. Hinnen is a graduate of Amherst College and Harvard Law 
    Welcome. Your written statement in its entirety will be 
made part of the record. I would ask you to summarize your 
testimony in 5 minutes or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow, and then 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.
    [Witness sworn.]
    Mr. Nadler. Let the record reflect that the witness 
answered in the affirmative.
    We will now hear your statement, sir.
    Mr. Hinnen. Thank you.
    [Disturbance in the hearing room.]
    Mr. Nadler. The gentleman will be removed.
    The witness will proceed.


    Mr. Hinnen. Thank you.
    Chairman Nadler, Ranking Member Sensenbrenner, full 
Committee Chairman Conyers, full Committee Chairman Smith, and 
Members of the House Judiciary Committee's Subcommittee on 
Constitution, Civil Rights, and Civil Liberties, thank you for 
inviting me to speak to you today on behalf of the Justice 
Department about the three intelligence authorities scheduled 
to expire this December.
    My written testimony sets forth the affirmative case for 
renewal for each of these three important authorities. Mindful 
of the Subcommittee's time and of the importance of discussion, 
my remarks today will touch briefly on the importance of each 
    At the outset, it is important to recognize that these 
authorities exist as part of a broader statutory scheme, 
authorized by Congress and overseen by the FISA Court, that 
supports foreign intelligence collection and thereby protects 
national security.
    The lone wolf provision allows the government to conduct 
surveillance pursuant to a FISA Court order on a non-U.S. 
person if the government demonstrates probable cause that the 
individual is engaged in international terrorism activities or 
preparation therefor.
    Although this provision has never been used, it is 
essential to the government's ability to thwart an 
international terrorist plotting to attack the United States 
who has no established connection to a recognized terrorist 
organization, either because he has broken ties with such an 
organization or because he has been recruited and trained via 
information posted to the Internet.
    Analysis suggests that, as the international coalition 
dedicated to combatting terrorism puts increasing pressure on 
terrorist groups and safe havens diminish, individuals who 
share the destructive goals of these groups but have no formal 
connection to them will pose an increasing threat.
    The roving wiretap authority allows the government to 
maintain surveillance of a target who has been identified or 
specifically described and who attempts to thwart surveillance 
by rapidly changing cell phones or other facilities. The 
government must demonstrate probable cause that the target is 
an agent of a foreign power and that that target is using or 
will use the cell phone. The government must also make a 
specific showing that the target will attempt to thwart 
surveillance. And if the government uses a roving wiretap 
order, it must notify the court within 10 days of that use and 
demonstrate the specific facts that demonstrate that the target 
is using the new cell phone.
    This authority is critical to efforts to collect 
intelligence on and protect against terrorists and foreign 
intelligence officers who have received countersurveillance 
training--our most sophisticated adversaries. The government 
has sought and been granted the authority in an average of 22 
cases per year. The government has had occasion to use that 
authority granted by the court far more seldom than that.
    The business records provision allows the government to 
obtain any tangible thing it demonstrates to the FISA Court is 
relevant to a counterterrorism or counterintelligence 
investigation. This provision is used to obtain critical 
information from the businesses unwittingly used by terrorists 
in their travel, plotting, preparation for, communication 
regarding, and execution of attacks. It also supports an 
important sensitive collection program, about which many 
Members of the Subcommittee or their staffs have been briefed.
    All applications of this authority are subject to FISA 
Court approval, minimization procedures, and robust oversight. 
Each of these authorities meets an important investigative 
need. The Department and the Administration are firmly 
committed to ensuring that they are used with due respect for 
the privacy and civil liberties of Americans.
    We welcome discussion with the Subcommittee directed toward 
ensuring that these authorities are renewed in a form that 
maintains their operational effectiveness and protects privacy 
and civil liberties.
    Finally, I would like to address national security letters. 
A number of bills have recently been introduced, on both sides 
of the Hill, that amend the five statutes governing this 
investigative authority. I appreciate the careful thought and 
hard work that went into those legislative proposals.
    The Department looks forward to engaging regarding them 
with Members of the Subcommittee. The Administration has not 
taken an official position on any particular provision on NSLs, 
so my ability to respond to questions regarding them today will 
be limited.
    I appreciate the Subcommittee's understanding in this 
regard and its recognition that today's hearing is only the 
beginning of a process of working closely together to create 
legislation that maintains the operational effectiveness of 
these important investigative tools and protects the privacy 
and civil liberties of Americans.
    Thank you.
    [The prepared statement of Mr. Hinnen follows:]

                  Prepared Statement of Todd M. Hinnen


    Mr. Nadler. I thank the gentleman.
    I will begin the questions by recognizing myself for 5 
    Mr. Hinnen, with respect to the so-called lone wolf 
authority, since terrorism is obviously a crime, why do we need 
this provision? Why not use ordinary Article 3 warrants? What 
additional powers does this provision give beyond the normal 
Article 3 warrant, and why are those powers necessary?
    Mr. Hinnen. Thank you, Mr. Chairman.
    The distinction, I think, between Article 3 powers and FISA 
powers are the factors recognized by Congress when enacting 
FISA in the first place, the needs of the government in 
conducting intelligence investigations.
    Whereas when using Article 3 authorities you are 
investigating the violation of one of the criminal laws, in an 
intelligence investigation or a counterterrorism investigation 
the government is often not intending to investigate a 
violation of the criminal law and often doesn't have 
prosecution as its end goal.
    Mr. Nadler. Regardless, can you get a lone wolf warrant in 
a circumstance where you couldn't get an Article 3 warrant?
    Mr. Hinnen. I think it is the conditions under which you 
can get the authority that are important. The additional 
secrecy that it provides that protects an ongoing intelligence 
    Mr. Nadler. The additional secrecy? Aren't Article 3 
warrants under seal?
    Mr. Hinnen. They may be under seal, but those orders are 
eventually unsealed, as are the applications that underlie 
them. And often the predicate facts that support the issuance 
of such an order are of sufficient sensitivity that the 
government does not want them----
    Mr. Nadler. So if Article 3 warrants had the authority to 
keep certain things, what you are talking about, secret, then 
that would be an adequate substitute for that?
    Mr. Hinnen. I think still the important distinction between 
the requirement under FISA that the government demonstrate that 
the individual is an agent of a foreign power and the 
requirement under Title III that the government demonstrate----
    Mr. Nadler. In the roving wiretap they don't have to 
demonstrate that--I am sorry, in the lone wolf they don't have 
    Mr. Hinnen. Under the lone wolf, the government still has 
to demonstrate that the target is an agent of a foreign power 
under the definitions in----
    Mr. Nadler. So you are telling me it is harder to get 
because they have to demonstrate something that they don't have 
to demonstrate for an Article 3.
    So my question then is, assuming you took care of the 
problem of potentially unsealing records eventually, because 
you wanted to keep certain things secret, what advantage is 
there to the government, in terms of an investigation, aside 
from having to jump through additional hoops to get the warrant 
in the first place, which is not an advantage, to using this as 
opposed to an Article 3 warrant?
    Mr. Hinnen. Mr. Chairman, I didn't mean to imply that it 
was more difficult to get a FISA Court order, simply that the 
government had to make a different showing.
    Mr. Nadler. Fine. But let's assume--never mind that. Why is 
it to the government's advantage, other than the question of 
declassifying information eventually--let's assuming we amended 
that--what is the advantage of a roving wiretap as opposed to 
an Article 4 wiretap?
    Mr. Hinnen. That the showing that the government has to 
make in order to get a FISA wiretap is more closely tailored to 
an intelligence investigation, that it focuses on an agent of a 
foreign power rather than a violation of the criminal laws.
    Mr. Nadler. So you could get it under certain circumstances 
when you couldn't get an Article 3 wiretap?
    Mr. Hinnen. The government gets it by making a different 
    Mr. Nadler. And the facts are such that there are cases in 
which you could make the showing necessary for a roving wiretap 
but couldn't make the showing in the same case necessary for an 
Article 3 wiretap warrant?
    Mr. Hinnen. I believe that there is some overlap but not 
    Mr. Nadler. I would ask then that you, after today--because 
I want to go to two other questions in the minute I have left--
give us specific information on how it would be advantageous to 
the government and, assuming we plug that secrecy problem, why 
Article 3 warrants wouldn't suffice. I mean, how does it really 
    The Administration has noted in its support for the 
reauthorization that it is willing to consider proposals to 
better protect privacy as well as efficacy. Given their 
position in the context of section 215 orders, would the 
Administration support returning to a standard that required 
specific facts showing that the records sought are related to a 
foreign power rather than the current ``relevant'' standard? 
And, if not, why not?
    Mr. Hinnen. Thank you, Mr. Chairman. That is an interesting 
question, whether the Administration would support a return to 
this ``specific and articulable'' standard which existed before 
the PATRIOT Act, as opposed to the ``relevant'' standard. This, 
of course, is something that Congress changed in the original 
    The Administration has not taken an official position on 
this yet. I would say, sitting here today, that it is not 
entirely clear to me that there is a substantive difference 
between the ``specific and articulable'' standard and the 
``relevant'' standard.
    If there is, in fact, not, then I would suggest that 
settled expectations militate in favor----
    Mr. Nadler. Clearly, if there is no difference, it doesn't 
matter. But everybody seems to have said for the last 10 years 
that there is a big difference.
    Mr. Hinnen. If, in fact, there is a difference, I think the 
presumption would be against change.
    Mr. Nadler. Say it again? I am sorry.
    Mr. Hinnen. The presumption would be against change, 
against returning----
    Mr. Nadler. Because?
    Mr. Hinnen. In part because Congress recently made the 
change to the relevance factor; in part because a practice has 
developed around the current standard; and in part because 
Congress has added additional safeguards, including judicial 
review of orders, in 2006.
    Mr. Nadler. Well, again, I would simply say this, and then 
my time will have expired: Saying that we shouldn't change 
something because Congress did it is never a good argument, 
because we are always changing something.
    I would ask you, again, after today, to supply us, if you 
think we shouldn't change that, with specific reasons other 
than ``we are already doing it this way,'' but specific reasons 
and illustrations of how that would affect intelligence 
gathering and why it would not be a good idea to change it.
    Mr. Hinnen. Certainly.
    Mr. Nadler. Thank you.
    My time has expired. I now recognize the distinguished 
Ranking Member of the Subcommittee, Mr. Sensenbrenner.
    Mr. Sensenbrenner. Thanks very much, Mr. Hinnen. You are a 
breath of fresh air. And I would say that, in many cases, you 
have vindicated many of the assertions that I made, both as the 
author of the PATRIOT Act in 2001 as well as the author of the 
PATRIOT Act reauthorization, which was signed by the President 
in March of 2006.
    The PATRIOT Act has been extensively litigated, and, in 
most cases, it has been held constitutional. Where there has 
been the biggest problems is relative to the national security 
letters issue.
    And I would point out that if you look at the legislative 
history behind national security letters, that was not one of 
the expanded powers given to law enforcement by the PATRIOT 
Act, but was merely changing the position of another statute 
that was authored by one of the PATRIOT Act's biggest critics, 
Senator Leahy of Vermont, from one part of the criminal code to 
the other. And I can say that the reauthorization put 
significant additional civil-liberties protections into the use 
of national security letters that were not there in the 
original Leahy-Kastenmeier legislation of 1986.
    Now, you know, all of that being said, given the debate 
over the PATRIOT Act, could you kind of give somewhat of an 
argument over why the Administration has come down in favor of 
extending the three expiring provisions of the PATRIOT Act 
without amendment?
    Mr. Hinnen. Thank you, Mr. Ranking Member.
    Just to clarify, the Administration's position is to 
reauthorize the three expiring provisions. And the 
Administration has indicated that it is open to discussion of 
amendments so long as those amendments both maintain the 
operational effectiveness of the authorities and protect 
privacy and civil liberties.
    And I think the reason that has been the position of the 
Administration is because we recognize the need to strike this 
continuing balance between effective intelligence investigative 
authorities on the one hand and the privacy and civil liberties 
of Americans on the other. And we are anxious to work 
collaboratively with Congress to strike that balance.
    Mr. Sensenbrenner. Will the Administration put the heat on 
Congress? Because I fear what would happen if December 31st 
comes and goes and the three expiring provisions effectively do 
expire. What would be the consequence of Congress letting this 
slip through the cracks, in your opinion?
    Mr. Hinnen. As I mentioned in my opening statement, Mr. 
Ranking Member, we feel that these are very important 
investigative authorities and that it would be very unfortunate 
to allow them to lapse. The Administration firmly supports 
renewal before December 31 so that there is no gap in the 
investigative capabilities of the government.
    Mr. Sensenbrenner. Thank you.
    I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes the distinguished Chairman of 
the full Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Welcome, Mr. Hinnen. Is this the first time you have 
testified before Judiciary?
    Mr. Hinnen. Yes, it is.
    Mr. Conyers. How long have you been in the Department of 
    Mr. Hinnen. Since January 21, 2009, Mr. Chairman.
    Mr. Conyers. January 21. You know, you sound like a lot of 
people from DOJ that have come over here before, and yet you 
have only been there a few months. Do you think that is a good 
thing or a bad thing?
    No, okay, you don't have to respond to that.
    Let me ask you something. Do you know how many times the 
PATRIOT Act has been challenged in the Federal courts?
    Mr. Hinnen. I have not counted, Mr. Chairman. I know that 
various provisions of it have been challenged a number of 
    Mr. Conyers. Uh-huh. How about five?
    Mr. Hinnen. I will take the Chairman's word for it.
    Mr. Conyers. All right. Thank you.
    Now, I refer now to something I think you know about. The 
inspector general described an incident in which the Foreign 
Intelligence Surveillance Act Court refused to issue a 215 
order because the request intruded on first amendment rights. 
Do you remember that case?
    Mr. Hinnen. With due respect, Mr. Chairman, unless we are 
discussing one of the declassified opinions of the FISA Court, 
that is not something I am at liberty to discuss here in this 
    Mr. Conyers. You are not at liberty to discuss it? It has 
been in the newspapers. We are discussing it. I have had a 
secret clearance before you, longer than you.
    Mr. Hinnen. I can readily believe that, Mr. Chairman. 
However, the fact that it has been published in the newspapers 
does not mean that it has been declassified and does not mean 
that it is appropriate for discussion in an open hearing here 
    Mr. Conyers. Well, just a minute. Let me turn to the chief 
of staff of the House Judiciary Committee.
    Well, would you say that the inspector general, who 
oversights intelligence, can refer to matters like this and 
have them published and made public without violating secrecy 
    Mr. Hinnen. When the inspector general for the Department 
of Justice or another part of the intelligence community 
desires to make part of a report public, he works closely with 
the intelligence community to ensure that the information is 
appropriately declassified before it is publicly released.
    Mr. Conyers. Well, the inspector general has had it 
redacted. Are you questioning the inspector general's knowledge 
of the law since January 21----
    Mr. Hinnen. Certainly not.
    Mr. Conyers [continuing]. Of 2009?
    Mr. Hinnen. Certainly not, Mr. Chairman. Merely proceeding 
out of an abundance of caution in light of the fact that 
inspectors general often issue both classified and unclassified 
versions of reports. And I don't have----
    Mr. Conyers. Well, have you ever seen the unclassified 
version of the inspector general's criticism of the fact that 
these orders were being issued and he refused to let it--you 
never heard of this ever happening before? There were several 
cases--there were several instances in the same case which this 
    Mr. Hinnen. I am familiar with the inspector general's 
report on 215 orders and familiar with the fact that the 
business records provision, like other parts of FISA, contain 
express protections for first amendment rights.
    Mr. Conyers. Okay. Now, what about the FBI? How do you 
consider their ability to handle classified, unclassified, and 
redacted information? Pretty good?
    Mr. Hinnen. I think the FBI----
    Mr. Conyers. Okay. The FBI went and issued a national 
security letter for the same information, and the inspector 
general described it as ``inappropriate.'' And I consider it 
much worse than that.
    Here is the problem. It is very simple. What the court, the 
intelligence court, and what the inspector general were 
complaining about is that you could get around the court's 
refusal to issue an order in a terrorist investigation by 
merely going to the FBI, getting around them, and they issue a 
national security letter for the very same information. 
Problem: That means that the court and the inspector general 
found that there was an abuse of process in handling this 
terrorist investigation.
    And I am going to have my staff supply you or your staff 
with all of this information, all of which is public.
    Mr. Hinnen. Thank you, Mr. Chairman.
    Now that I am clear on which reports we are referring to, 
if you will give me a moment to respond.
    Mr. Conyers. All right.
    Mr. Hinnen. In 2007, the inspector general published its 
first report on national security letters, which found some 
sloppy record-keeping and administrative errors by the Federal 
Bureau of Investigation, in part because of the Byzantine 
nature and interaction of the five governing statutes.
    In 2008, the inspector general issued a follow-up report 
that indicated that many of those issues had been fixed and 
provided recommendations for the government to make further 
    Since that time, the Federal Bureau of Investigation has 
put into place a new data subsystem governing NSLs that 
prevents many of the administrative errors and ensures much of 
the record-keeping that the inspector general found was in 
error in the 2007 report.
    In addition, the National Security Division, where I work, 
has increased its oversight efforts and now does national 
security reviews of FBI field offices on an annual basis. And, 
of course, Congress and the inspector general maintain their 
oversight authority.
    Mr. Conyers. Well, I am glad your memory has been 
refreshed. That is wonderful.
    What we have here are a whole series of problems. This is 
just one case that we have been discussing all this time. There 
are great privacy problems.
    Have you ever examined, in the course of your official 
duties, the American Civil Liberties Union's comments about our 
discussion about privacy?
    Mr. Hinnen. I am certainly familiar with many of their 
comments and with their testimony today, yes.
    Mr. Conyers. And do you find any serious disagreements with 
any parts of it?
    Mr. Hinnen. I do find myself in disagreement with some 
parts of their testimony, yes, Mr. Chairman.
    Mr. Conyers. And some parts you find agreement with?
    Mr. Hinnen. Certainly.
    Mr. Conyers. If I could indulge the Chairman's generosity 
for sufficient time----
    Mr. Nadler. Without objection.
    Mr. Conyers [continuing]. To just identify the parts that 
you find yourself in agreement with and the parts that you may 
not be so enthusiastic about.
    Mr. Hinnen. With due respect, Mr. Chairman, you have asked 
me about the ACLU's positions in general. I would----
    Mr. Conyers. No, not in general. No.
    Mr. Hinnen. With respect to these provisions and with 
respect to the PATRIOT Act.
    Mr. Conyers. Yes.
    Mr. Hinnen. I would note that their testimony on that 
subject today is 35 single-spaced pages. I would be happy to--I 
simply don't think that the Committee has----
    Mr. Conyers. No, I wouldn't want to do that. But, well, 
let's use numbers. Let's indicate to me how many things you 
agree with in that 35 single-spaced closed printing that you 
found agreement with and how many issues that you found some 
disagreement with.
    Mr. Hinnen. Mr. Chairman, I didn't investigate the 
testimony with a mind to try and determine what percentage I 
agreed with and what I didn't.
    Mr. Conyers. Probably not. I can understand that.
    Mr. Hinnen. The best that I can say is that I agree with 
some parts of it and disagree with others.
    Mr. Conyers. Uh-huh. And how will we find out which parts 
you agreed with and which parts you didn't?
    Mr. Hinnen. Hopefully, Mr. Chairman, through the dialogue 
that the Subcommittee is embarking upon today----
    Mr. Conyers. Well, how about you sending us a memo 
identifying it in some detail, or as much or as little as you 
want since I will write you back if we need more?
    Mr. Hinnen. I would be happy to take that back to the 
Department, Mr. Chairman.
    Mr. Conyers. Well, I am going to take it back to the 
Department with you. And thank you very much for your 
    Mr. Hinnen. Thank you for your questions.
    Mr. Nadler. Thank you.
    The gentleman from Florida is recognized for 5 minutes.
    Mr. Rooney. Thank you, Mr. Chairman.
    Mr. Hinnen, I also started my current employment in 
January, so hopefully this question is fairly simple.
    Last week, Senator Feingold introduced legislation that, 
amongst other things, repeals Title VIII of FISA, which 
provided civil liability protections to telecommunication 
carriers who assisted the government following the 9/11 
terrorist attacks, a provision that President Obama voted for.
    To your knowledge, does the Administration support this 
    Mr. Hinnen. Congressman Rooney, the Administration has 
taken no official position on this or any other provision of 
Senator Feingold's bill.
    As you noted in your question, the President did vote for 
the FISA Amendments Act as a Senator, and DOJ has defended the 
immunity provision in litigation. So, without forecasting an 
official position, as the President has suggested, it may be 
more productive to look forward to meet the challenges still 
before us than to reopen debates resolved in the past.
    Mr. Rooney. Thank you.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now recognize the gentleman from Georgia for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    And I think this issue clearly draws a distinction between 
the two basic philosophies that the Supreme Court would use in 
solving the case. Would it be a strict construction kind of 
analysis, or would it be by chance the acknowledgment that the 
Constitution is a living and breathing document and has to be 
interpreted in accordance with the realities of the time?
    And so it would be interesting to see how the United States 
Supreme Court handles this, whether or not it will be a strict 
construction or whether or not we will have Supreme Court 
justices legislating from the bench, as they like to call it.
    But, at any rate, the issue on roving wiretaps enables the 
government to target persons rather than places. And ``places'' 
is the term used in the fourth amendment. Search warrants must, 
quote, ``particularly describe the place to be searched,'' end 
    Are there any other provisions of the United States 
Constitution or the Bill of Rights upon which the 
Administration would depend on for justifying the extension of 
the act with respect to roving wiretaps?
    Mr. Hinnen. If I understand the question correctly, the 
Administration feels that the roving surveillance authority is 
fully constitutional. Although the fourth amendment text speaks 
specifically of places, the Supreme Court has recognized, going 
back to the Katz decision in which an individual using a 
telephone booth was found to be protected by the fourth 
amendment, that the fourth amendment protects persons as well 
as places.
    And so, I think it is against that constitutional backdrop 
that consideration of the roving authority has to be 
undertaken. Having said that, I think that the provision 
readily meets constitutional scrutiny.
    Mr. Johnson. Well, have there been any court decisions that 
have extended the definition, if you will, of place to be 
searched to be described in particularity?
    Mr. Hinnen. I think the fourth amendment jurisprudence has 
applied the fourth amendment in a wide variety of places and 
    Mr. Johnson. Has it ever extended that particular provision 
of the fourth amendment?
    Mr. Hinnen. I am not sure I understand how----
    Mr. Johnson. In other words, have there been any cases 
where the issue was whether or not an extension of--this is not 
a very artfully posed question.
    In other words, we have the fourth amendment that says 
search warrants must, quote, ``particularly describe the place 
to be searched.'' Have there been any court rulings that you 
know of which have extended the plain intent of the Founders in 
that situation?
    Mr. Hinnen. I think I understand, and I apologize. I think 
my answers have been inartful.
    The FISA Court in the past has recognized that, given the 
specific needs of intelligence investigations, a probable-cause 
showing with respect to the fact that the individual is an 
agent of a foreign power is sufficient, regardless of the place 
to be searched or that kind of thing.
    In the roving authority, it is important that the 
government has to demonstrate to the court probable cause that 
the identified or specifically described individual is an agent 
of a foreign power.
    And I think it is that provision, together with the 
probable cause requirement that the government show that the 
cell phone or facility will be used by that target, that 
renders the roving authority constitutional. In other words, it 
is the specific description or identification of the target 
that renders it constitutional.
    Mr. Johnson. One last question, if I may, Mr. Chairman.
    Does the roving wiretap provision of the PATRIOT Act, does 
it allow U.S. citizens to be subject thereto?
    Mr. Hinnen. The statutory definition that roving relies 
upon refers to both parts of the ``foreign power'' definition 
in the Foreign Intelligence Surveillance Act. So it can apply, 
if the other conditions of the statute are met, to a United 
States person who has demonstrated to be acting on or behalf of 
a foreign power; it can also apply in a circumstance where the 
target is a non-U.S. person but meets one of the other 
statutory definitions.
    Mr. Johnson. And who would determine whether or not there 
is probable cause--that would be the standard that would 
apply--probable cause to believe that a United States citizen 
was cooperating or being a tool of a foreign power or terrorist 
    Mr. Hinnen. The FISA Court--under the 1978 legislation that 
Congress passed, the FISA Court would exercise independent 
oversight of the government's showing with respect to whether 
there is probable cause that an individual is an agent of a 
foreign power.
    Mr. Johnson. And that would take place before or after the 
wiretap, if you will, were instituted?
    Mr. Hinnen. With respect to the fact that the individual is 
an agent of a foreign power, that probable-cause showing is 
made before the wiretap order is granted by the court.
    Mr. Johnson. Say that again?
    Mr. Hinnen. With respect to the probable-cause requirement 
that the individual targeted is an agent of a foreign power, 
that determination is made by the FISA Court before 
surveillance is authorized.
    Mr. Johnson. Is that just limited to U.S. citizens, or does 
it also have to be shown by probable cause with respect to a 
non-U.S. citizen?
    Mr. Hinnen. That is with respect to any target of 
surveillance under the Foreign Intelligence Surveillance Act.
    And I should drop a footnote to that and mention that there 
is emergency authority provided by the statute pursuant to 
which the Attorney General can begin surveillance and 
demonstrate probable cause within 7 days afterwards.
    But, in the vast majority of cases, in the standard FISA 
case, the government must always demonstrate probable cause to 
the FISA Court before surveillance begins that the individual 
is an agent of a foreign power.
    Mr. Johnson. Thank you, sir.
    Mr. Nadler. The gentleman's time has expired.
    I now recognize the gentleman from Iowa.
    Mr. King. I thank you, Mr. Chairman.
    And I am plenty happy with the latitude given my friend, 
Mr. Johnson, because he doesn't have to speak as quickly as I 
have to in the environment that I originate in. Neither would 
it be the case for the New Yorkers, who can get it out pretty 
quickly as well.
    Mr. Nadler. Nobody speaks as quickly as the gentleman from 
    Mr. King. That is well made.
    And I thank the witness for his testimony here.
    And I just ask if you are familiar with the case that has 
unfolded in New York, the plot against Grand Central Terminal, 
and the transfer of information and people from Denver to New 
York, the communications that are the background of that, and 
if the gentleman can advise this Committee as to whether the 
PATRIOT Act was utilized in any of that investigation.
    Mr. Hinnen. Thank you for the question.
    I am familiar, obviously, with the case. As we have 
discussed today, and as the Supreme Court, the FISA Court, and 
Congress have repeatedly emphasized, secrecy is often critical 
to the success of national security investigations. And it is 
unfortunate when those investigations are jeopardized by a 
leak, as was the case, and has resulted in those articles.
    I am afraid that, because the authorities used to 
investigate that case or that may have been used to investigate 
that case are authorities before the FISA Court, I am not at 
liberty to discuss them in an open hearing here today.
    Mr. King. Would you care to reclarify that statement, ``was 
or may have been used''?
    Mr. Hinnen. May have been used, yes.
    Mr. King. I thought you might want to reiterate----
    Mr. Hinnen. Thank you, Congressman.
    Mr. King [continuing]. That, Mr. Hinnen.
    And nothing prevents me from speculating or speaking in 
terms of hypotheticals. And I will just ask you to go to 
wherever your limit is, and we will accept that.
    As I read the news on this particular case, and I can only 
contemplate as to what might have happened if the case hadn't 
been broken, and that then we can imagine that there may have 
been an attack that took place already or one that was 
unfolding that we would have no knowledge of that could have 
detonated one or more devices at Grand Central Terminal or 
around the various locations in New York City. I am very 
grateful that there have been a significant number of plots 
that have been, that have been broken open on the part of our 
security personnel all the way across the spectrum of our law 
enforcement from top to bottom, and sometimes we got lucky when 
we got a regular American citizen that weighed in on it, that 
little tip was handled well, we have been safe for a long time.
    But if one were to try to imagine a case that would have 
similarities to this one, or maybe one that you can testify on, 
can you paint a scenario by which we would have not have been 
able to gather the data necessary to break a terrorist plot 
without the PATRIOT Act?
    Mr. Hinnen. If I understand the question correctly, yes, I 
think there are circumstances that are not difficult to 
imagine, some of which I referred to in my opening testimony in 
which the absence of any of the three investigative authorities 
that are up for renewal this year would hamper the government's 
ability to effectively investigate an imminent plot.
    Mr. King. Let me pose the question this way, as I listened 
to Chairman Conyers talk about it and ask you to go on record 
as to parts of the report that you agree and the ones you 
disagree with, is it possible for you to present to this 
Committee as a matter of a formal request, a list of the plots 
that have been broken since the PATRIOT Act was passed and the 
successes of the PATRIOT Act, and then, point to the sections 
in the code that were utilized among those that are not 
currently under investigation so that you could divulge that 
information in a public fashion?
    As this Committee weighs the idea of reauthorizing the 
PATRIOT Act, I would think that we should be able to weigh the 
successes of the PATRIOT Act, as well as be able to point to 
the calamities that might have taken place had we not had the 
PATRIOT Act? Would that be possible, Mr. Hinnen?
    Mr. Hinnen. I certainly think that something along those 
lines would be possible and I'll take that request back to the 
    *The expiring USA PATRIOT Act provisions are all Foreign 
Intelligence Surveillance Act (FISA) tools designed to collect foreign 
intelligence information and as such are not commonly used to build 
criminal cases. If information obtained through FISA is used in a 
criminal proceeding, it is acknowledged and handled under the rules of 
discovery and statutory requirements. However, because the protection 
of sources and methods is paramount, any specific surveillance 
techniques (such as roving wire taps) used to obtain such information 
would not ordinarily be revealed. See generally 50 U.S.C. Sec. 1806. 
Thus, even if there were cases where these techniques were used, such 
techniques would not have been publicly disclosed and the Department 
cannot provide unclassified examples.
    Mr. King. I expect that given their interest in this 
reauthorization, that they'll be eager to provide that 
information. And without belaboring the point, but watching the 
clock, I would just, I would point out that as I sit here and 
listen to the cross examination and the discussion that's taken 
place, I can't help but think what if this hearing were taking 
place in the middle of smoke and dust coming out of the ground 
at Grand Central Terminal? Wouldn't there be an entirely 
different tone to this discussion today? If the PATRIOT Act has 
saved at this point hypothetically but uncountable American 
lives. We have been able to avoid a domestic attack of any 
significant success in the United States since September 11, 
2001, and so I'd just ask when you contemplate if they had been 
successful, how the tone of this discussion might have changed.
    Mr. Hinnen. Well, I would hope, Congressman, that the tone 
of the discussion would be careful and deliberative and 
designed to ensure that the intelligence investigative 
authorities that resulted were effective and gave intelligence 
officers the tools that they need to do their jobs, while, at 
the same time, protecting American's privacy and civil 
liberties. So I hope that, although we would all have reason to 
grieve or mourn if that were the case, that the tone of the 
debate and the substance of the debate would be very similar to 
the one that we are having right now, and that I expect the 
other witnesses will have when they have an opportunity to 
testify as well.
    Mr. King. And then in conclusion, and I thank the witness. 
I'd just point out that because we don't have a calamity to 
discuss this, we need to make sure that we evaluate it within 
the light of what might have happened. I urge that 
consideration to the panel. And I would thank the witness and 
yield back the balance of my time.
    Mr. Nadler. The gentleman's time has expired. I thank the 
gentleman, and I thank the witness. We look forward to your 
providing us with the information that you have said you would. 
I thank you. We will now proceed with our second panel. And I 
would ask the witnesses to take their places. In the interest 
of time, I will introduce them while they are taking their 
seats. Suzanne Spaulding is currently a principal in Bingham 
Consulting Group and of counsel to Bingham McCutchen, where she 
advises clients on issues related to national security. Ms. 
Spaulding was Democratic Staff Director for the U.S. House of 
Representatives Permanent Select Committee on Intelligence. She 
had started working on terrorism and other national security 
issues 20 years earlier in 1983 as Senior Counsel, and later 
Legislative Director for Senator Arlen Specter. After 6 years 
at the Central Intelligence Agency where she was Assistant 
General Counsel and the Legal Adviser to the Director of 
Central Intelligence's Nonproliferation Center, she returned to 
the Hill as general counsel for the Select Committee on 
    She served as the executive director of two 
Congressionally-mandated commissions: The National Commission 
on Terrorism, chaired by Ambassador L. Paul Bremer, III, and 
the Commission to Assess the Organization of the Federal 
Government to Combat the Proliferation of Weapons of Mass 
Destruction, chaired by former Secretary of Defense and CIA 
Director John Deutch. She advised both the Advisory Panel to 
assess Domestic Response Capabilities for Terrorism Involving 
Weapons of Mass Destruction, the Gilmore Commission, and 
President George W. Bush's Commission on the Intelligence of 
the United States regarding weapons of mass destruction, the 
Robb/Silberman commission.
    She is currently a member of the CSIS Commission on 
cybersecurity for the 44th presidency. In 2002, she was 
appointed by then-Virginia Governor Mark Warner to the Secure 
Commonwealth Panel established after the attacks of September 
11 to advise the governor and the legislature regarding 
preparedness and response issues in the Commonwealth of 
Virginia. She received her undergraduate and law degrees from 
the University of Virginia.
    Tom Evans represented Delaware in the House of 
Representatives from 1977 to 1983. He served as co-Chairman and 
operating head of the Republican National Committee, Deputy 
Chairman of the Republican National Finance Committee and the 
Republican National Committeemen from Delaware. He was also 
Chairman of the Congressional Steering Committee of the Reagan 
for President Committee, served on the executive committee of 
the Reagan Bush campaign and was vice chairman of the 
congressional campaign committee with responsibility for White 
House liaison. Tom Evans also served as a member of an informal 
group known as the Reagan kitchen cabinet that directly and 
regularly advised the President on a broad range of issues.
    In Congress he was a Member of the House Banking Committee 
and the Merchant Marines and Fisheries Committee. He has a BA 
and an LLD from the University of Virginia.
    Ken Wainstein, and I hope I pronounced that correctly, is a 
partner in O'Melveny's Washington, D.C. Office and a member of 
the White Collar Defense and Corporate Investigations Practice. 
He focuses his practice on handling civil and criminal trials 
and corporate internal investigations. Mr. Wainstein spent 19 
years in the Department of Justice, from 1989 to 2001. He 
served as Assistant U.S. attorney in both the Southern district 
of New York and the District of Columbia. In 2001, Mr. 
Wainstein was appointed director of the executive office for 
U.S. attorneys. The next year, Mr. Wainstein joined the Federal 
Bureau of Investigation to serve as general counsel and later 
as Chief of Staff to Director Robert S. Mueller. Two years 
later he was appointed and later confirmed as U.S. Attorney for 
the District of Colombia.
    In 2006, he became the first Assistant Attorney General 
forNationaal security at the Justice Department. In 2008, Mr. 
Wainstein was named President Bush's homeland security adviser, 
with a portfolio covering the coordination of the Nation's 
counterterrorism, homeland security, infrastructure protection 
and disaster response and recovery efforts. He has a BA from 
the University of Virginia and a JD from the University of 
California at Berkeley.
    Mike German is a policy counsel for the American Civil 
Liberties Union's Washington legislative office. Prior to 
joining the ACLU, Mr. German served 16 years as a special agent 
with the FBI, where he specialized in domestic terrorism and 
covert operations. Mr. German served as an adjunct professor 
for law enforcement and terrorism at the National Defense 
University and is senior fellow of globalsecurity.org. He has a 
BA in Philosophy from Wake Forest University and a JD from 
Northwestern University law school.
    I am pleased to welcome all of you. Your written statements 
will be made part of the record in their entirety. I would ask 
each of you to summarize your testimony in 5 minutes or less. 
To help you stay within that time, there is a timing light at 
your table. When 1 minute remains the light will switch from 
green to yellow and then red when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect that the witnesses 
answered in the affirmative. You may be seated. Our first 
witness is Susan Spaulding who is recognized for 5 minutes.


    Ms. Spaulding. Thank you, Subcommittee Chairman Nadler, 
full Committee Chairman Conyers, and Members of the Committee. 
Thank you for inviting me to participate in today's hearing on 
the USA PATRIOT Act and related provisions. Earlier this month, 
we marked another anniversary of the attacks of September 11. 
In the 8 years since that indelible manifestation of the 
terrorist threat, we've come to better understand that respect 
for the Constitution and the rule of law is a source of 
strength and can be a powerful antidote to the twisted lure of 
the terrorist's narrative. In fact, after spending 20 years 
working terrorism and national security issues for the 
government, I am convinced that this approach is essential to 
defeating the terrorist threat. Given this national security 
imperative, Congress should use this opportunity to more 
broadly examine ways to improve our overall domestic 
intelligence framework, including a comprehensive review of the 
FISA, National Security Letters, attorney general guidelines 
and applicable criminal investigative authorities, and I would 
encourage the Administration to do the same.
    This morning, however, I will focus on the sunsetting 
provisions that are the focus of this hearing. Sections 215 and 
206 both have corollaries in the criminal code. Unfortunately, 
important safeguards were lost in the translation as these 
moved into the intelligence context. Section 206, for example, 
was intended to make available in intelligence surveillance the 
roving wire tap authority that criminal investigators had. This 
was an essential update.
    However, there are specific safeguards in the criminal 
title three provisions that were not carried over to FISA, 
requirements that provided significant safeguards designed to 
protect fourth amendment rights of innocent people. Their 
absence in section 206 increases the likelihood of mistakes and 
the possibility of misuse. In addition, in the criminal context 
where the focus is on successful prosecution, the exclusionary 
rule serves as an essential deterrent against abuse, one that 
is largely absent in intelligence investigations where 
prosecution may not be the primary goal. This highlights the 
care that must be taken when importing criminal authorities 
into the intelligence context and why it may be necessary to 
include more vigorous standards or safeguards, and I have 
suggested some in my written testimony.
    Similarly, section 215, governing orders for tangible 
things, attempted to mimic the use of grand jury or 
administrative subpoenas in the criminal context. However, 
criminal subpoenas require some criminal nexus. FISA's section 
215 does not. Moreover, the PATRIOT Act amendments broadened 
this authority well beyond business records to allow these 
orders to be used to obtain any tangible things from any 
    This could include an order compelling you to hand over 
your personal notes, your daughter's diary or your computer, 
things to which the fourth amendment clearly applies. Again, in 
my written testimony I have tried to suggest ways to tighten 
the safe guards for section 215 without impairing the national 
security value of this provision. In the interest of time, 
however, I will move to the lone wolf provision.
    Four years ago, I urged Congress to let this provision 
sunset and I reiterate that plea today. The Administration 
admits that the lone wolf authority has never been used, but 
pleads for its continuation just in case. The problem is that 
this unnecessary provision comes at a significant cost, the 
cost of undermining the policy and constitutional justification 
for the entire FISA statute, a statute that is an extremely 
important tool for intelligence investigations. The legislative 
history in court cases before and after the enactment of FISA, 
including two cases from the FISA court itself make clear that 
this extraordinary departure from the normal fourth amendment 
warrant standards is justified only by the unique complications 
inherent in investigating foreign powers and their agents.
    Unfortunately, instead of repealing or fixing the lone wolf 
provision, Congress expanded it by adding a person engaged in 
the international proliferation of weapons of mass destruction. 
There's no requirement that this person even knows that they 
are contributing to proliferation. A non U.S. person working 
for an American company whose involved in completely legal 
sales of dual use goods that unbeknownst to her are being sold 
to a front company for use in the development of chemical 
weapons, for example, could be considered to be engaged in the 
proliferation of WMD and thereby have all of her communications 
intercepted and home secretly searched by the U.S. Government. 
As the former legal adviser for Intelligence Community's 
nonproliferation center and executive director of a 
congressionally mandated WMD Commission, I fully understand the 
imperative to stop the spread of these dangerous technologies. 
However, there are many tools available to investigate these 
activities without permitting the most intrusive techniques to 
be used against people who are unwittingly involved and whose 
activity is perfectly legal.
    Let me close by commending the Committee for its commitment 
to ensuring that the government has all appropriate and 
necessary tools at its disposal in this vitally important 
effort to counter today's threats, and that these authorities 
are crafted and implemented in a way that meets our strategic 
goals as well as our tactical needs. With a new Administration 
that provokes less fear of the misuse of authority, it may be 
tempting to be less insistent upon statutory safeguards. On the 
contrary, this is precisely the time to seize the opportunity 
to work with the Administration to institutionalize appropriate 
safeguards in ways that will mitigate the prospect of abuse by 
future Administrations or by this Administration in the 
aftermath of an event. Thank you very much.
    Mr. Nadler. Thank you.
    [The prepared statement of Ms. Spaulding follows:]

               Prepared Statement of Suzanne E. Spaulding

    Mr. Nadler. Congressman Evans, you are recognized for 5 


    Mr. Evans. Thank you, Mr. Chairman, for inviting me today. 
It's a pleasure to be here. It's always good to be back, and 
it's good to see my friend, the Chairman of the Judiciary 
Committee, the gentleman from Michigan, Mr. Conyers. And ladies 
and gentlemen of the Committee, it's a privilege to----
    Mr. Nadler. Could you pull the mike a little closer, 
    Mr. Evans. I still have 5 minutes?
    Mr. Nadler. Yes, we're resetting the clock as we speak.
    Mr. Evans. Well, anyway, it a privilege to be here. I'm 
delighted to be invited. I'm delighted to see my friend, the 
Chairman of the Committee, the gentleman from Michigan, Mr. 
Conyers. And I'm honored to represent the Liberty and Security 
Committee of the Constitution Project today. You have my 
previously prepared statement, and attached to it is the 
Liberty and Security Committee's statement on reforming the 
PATRIOT Act. One word about the makeup of our Committee. It is 
truly bipartisan, bipartisan in nature. We address issues, not 
as Republicans or Democrats, but we need more of that, I think, 
in this country and here in Washington.
    Our membership is broad based, and it includes a number of 
former U.S. attorneys, some distinguished judges, former 
judges, professors of law, a few deans of law schools, even a 
publisher, Mr. Conyers, who is a publisher of the Detroit Free 
Press, Mr. Lawrence. And I might add, foundation chairman and 
senior members of the Administration. And I also want you to 
know that there are a number of conservative Republicans. I am 
a moderate Republican, but there are a number of conservative 
Republicans on this Committee, including, several who were 
Members of this body, constitutional scholars both.
    In the wake of the terrible tragedy it's been pointed out 
of the September 11, 2001, our Nation clearly needed to 
mobilize in order to respond with a new and powerful counter-
terrorism strategy. However, our bipartisan committee believes 
that there was an over reaction, an over reaction in the super 
heated fear surrounding Washington and our country at that 
time, and we should strive never to let our fears lead us to 
over reaction. And whenever we grant powers to the executive 
branch of government, we must incorporate proper safeguards to 
protect individual rights and ensure proper oversight.
    That's why I am especially heartened to see this Committee 
exercising its oversight responsibility which is such a 
critically important element in our system of checks and 
balances. The members of the Liberty and Security Committee of 
the Constitution project have all joined together in the 
statement on reforming the PATRIOT Act which is attached to my 
statement for the record. Broadly speaking, we are urging the 
Congress to initiate some important changes if you proceed with 
the reauthorization of three provisions that are sunsetted in 
the PATRIOT Act. Briefly, we believe the business records or 
library records provision provides largely unchecked powers. We 
believe they should be tightened, and the inclusion of a gag 
order should be limited to 30 days. The lone wolf provision 
permits the government to use the Foreign Intelligence 
Surveillance Act for the surveillance of a non U.S. person with 
no ties to any group or entity. And that's important to 
remember. Suspects would still be subject to surveillance and 
search under traditional and well established standards of 
criminal conduct. The roving wiretap provision concerns us 
because innocent civilians may become inadvertent targets of 
surveillance. Two provisions, not scheduled to be sunsetted, 
are the ideological exclusion provision and the national 
security letter provision, section 505 of the PATRIOT Act. Let 
me focus for a minute on the NSLs. That provision does not even 
require a court order, and creates even greater potential for 
serious abuse.
    Section 505 enabled agents to seek information without any 
demonstrated factual basis, and it vastly expanded the types of 
financial institutions that can receive demands through an NSL 
letter, to include such businesses as travel agencies, real 
estate firms, insurance companies, automobile dealers. 
Unfortunately, and sadly, these overly broad powers did not 
just create the potential for abuse. You pointed those out, Mr. 
Chairman. Audits by the Inspector General released in 2007 and 
2008 have revealed numerous actual abuses in the issuance of 
NSLs. Let me be clear. The Liberty and Security Committee 
believes that the FBI should have the tools necessary to 
protect our citizens. And let me say from a personal 
standpoint, I strongly believe that. My son could have died. My 
oldest son could have died in the attack on 9/11. But we 
strongly believe we need to protect the liberties of Americans. 
The integrity of our Constitution is critically important. We 
believe we've struck the proper balance in our recommendations. 
And I sincerely hope you will consider them carefully as you 
move forward. Thank you again for asking me to be here.
    Mr. Nadler. I thank the gentleman.
    [The prepared statement of Mr. Evans follows:]

        Prepared Statement of the Honorable Thomas B. Evans, Jr.


    Mr. Nadler. Mr. Wainstein, you are recognized for 5 


    Mr. Wainstein. Thank you Mr. Chairman. Chairman Nadler, 
Chairman Conyers, Members of the Subcommittee, thank you for 
holding this important hearing and thank you for soliciting our 
views about the PATRIOT Act. My name is Ken Wainstein. I am a 
partner at the law firm of O'Melveny & Myers. But prior to my 
leaving government in January of this year, I served in a 
variety of positions and had the honor to work alongside the 
fine men and women who defend our country day in and day out. I 
also had the honor to participate along with my co-panelists in 
what has been I think a very constructive national discussion 
over the past 8 years over the limits of government 
investigative powers in this country's fight against 
international terrorism.
    Today, I want to discuss the three provisions of the 
Foreign Intelligence Surveillance Act that are scheduled to 
expire at the end of this year and explain my position that all 
three of these authorities are important to our national 
security and should be reauthorized. The PATRIOT Act was 
originally passed within 45 days after 9/11 in response to the 
tragic attacks of that day.
    In 2005, Congress, to its enduring credit, undertook a 
lengthy process of carefully scrutinizing each and every 
provision of that statute, a process that resulted in the 
reauthorization act that provided significant new safeguards 
for many of the original provisions. The authorities in the 
PATRIOT Act are now woven into the fabric of our 
counterterrorism operations and have now become a critical part 
of our defenses against what President Obama has aptly 
described as al-Qaeda's quote, far reaching network of violence 
and hatred. And this is particularly true of the three 
provisions that are subject to reauthorization this year.
    The first authority I'd like to address is the roving 
wiretap authority in section 206 which allows agents to 
maintain continuous surveillance of a target as that target 
moves from one communication device to another, which is 
standard trade craft for many surveillance conscious terrorists 
and spies. This is an absolutely critical investigative tool, 
especially given the proliferation of inexpensive cell phones, 
calling cards and other innovations that make it easy to dodge 
surveillance by rotating communication devices. While law 
enforcement personnel investigating regular crimes have had 
this authority since 1986, national security agents trying to 
prevent terrorist attacks only received it in 2001.
    While some have raised privacy concerns about this 
authority, a fair review of section 206 shows that Congress 
incorporated a number of safeguards to ensure its judicious and 
responsible use. This new provision did nothing to affect the 
touchstone government burden of demonstrating probable cause 
that a target is a foreign power or an agent of a foreign 
    Second, the statute ensures that the FISA court will 
closely monitor and receive reports from the government 
regarding any roving surveillance. And finally, the statute 
specifies that the government can use this authority only if 
the government can show specific facts demonstrating that a 
target is taking action such as switching cell phones that 
thwart the government's ability to conduct surveillance. Given 
these requirements, given these safeguards and given the clear 
operational need to surveil terrorists and spies as they rotate 
their phones and communications devices, there is a very strong 
case for reauthorizing this authority.
    Section 215 authorizes the FISA court to issue orders for 
the production of records that law enforcement prosecutors have 
historically been able to acquire through grand jury subpoenas. 
Prior to the enactment of section 215, our national security 
personnel were hamstrung in their effort to obtain business 
records because the operative statute at the time required a 
higher showing of proof and limited those orders to only 
certainly types of businesses. Section 215 addressed these 
weaknesses by adopting a regular relevance standard for the 
issuance of the order and expanding the reach of the authority 
to any entity or any business. And like the roving wiretap 
authority, Congress built into this provision a number of 
safeguards that made section 215 orders significantly more 
protective of civil liberties than the grand jury subpoenas 
that are issued every day around this country by Federal and 
State prosecutors. Unlike grand jury subpoenas that a 
prosecutor can issue on his or own, a 215 order must be 
approved by a court. Unlike subpoenas, section 215 specifically 
bars issuance of an order if the investigation is focused only 
on someone's first amendment activities.
    And unlike grand jury subpoenas, section 215 requires 
regular reporting to Congress and imposes a higher standard for 
particularly sensitive records like library records. With these 
safeguards in place, there is absolutely no reason to return to 
the days when it was easier for prosecutors to secure records 
in a simple assault prosecution than for national security 
investigators to obtain records to help defend our country 
against terrorist attacks.
    Lastly, the lone wolf provision. That allows the government 
to conduct surveillance on a non U.S. person who engages in 
international terrorism without demonstrating his affiliation 
to a particular international terrorist organization. As 
Ranking Member Sensenbrenner indicated, back in 1978 when this 
statute was passed the contemplated terrorist target was a 
member of an organization like the Red Brigades. Today our 
terrorist adversary or our main adversary is al-Qaeda which is 
a network of like minded terrorists around the world whose 
membership shifts and fluctuates with changing alliances. Given 
this increasing fluidity in the organization and membership of 
our adversaries, there is greater likelihood today that we will 
encounter a foreign terrorist and not be able to identify that 
person's terrorist organization.
    And to ensure the government can surveil that person, the 
lone wolf provision is absolutely critical to make sure that we 
can keep an eye on that person and prevent that person from 
undertaking a terrorist attack. Although, as was reported, the 
lone wolf provision has not been used, given the threat posed 
by foreign terrorists regardless of affiliation and the obvious 
need to keep them under surveillance, there is an ample case 
for maintaining this authority for the day when the government 
may need to use it. Thank you again, Mr. Chairman, for the 
opportunity to discuss the sunsetting PATRIOT Act provisions 
and the reasons for my belief that they should all be 
    [The prepared statement of Mr. Wainstein follows:]

               Prepared Statement of Kenneth L. Wainstein


    Mr. Nadler. I thank you. And I now recognize Mr. German for 
5 minutes.

                        LIBERTIES UNION

    Mr. German. Chairman Nadler, Chairman Conyers, Ranking 
Member Sensenbrenner, thank you for the opportunity to testify 
on behalf of the American Civil Liberties Union as Congress 
revisits the USA PATRIOT Act. The PATRIOT Act vastly and 
unconstitutionally expanded the government's authority to pry 
into people's private lives with little or no evidence of 
wrongdoing, violating the fourth amendment protections against 
unreasonable searches and seizures and first amendment 
protections against free speech and association. Worse, it 
allows this expanded spying to take place in secret, with few 
protections to ensure these powers are not abused, and little 
opportunity for Congress determine whether these authorities 
are doing anything to make America safer. The three expiring 
provisions give Congress the opportunity, as the Department of 
Justice's September 14 letter suggested, to carefully examine 
how these expired authorities, expanded authorities impact 
American's privacy.
    We urge Congress to broaden its review to include all post-
9/11 domestic intelligence programs, including the Foreign 
Intelligence Surveillance Act amendments and the new Attorney 
General guidelines for FBI domestic operations, and rescind, 
repeal or modify any provisions that are unused, ineffective or 
prone to abuse. When several PATRIOT Act provisions came up for 
renewal in 2005 there was little in the public record for 
Congress to evaluate. Today Congress is not completely in the 
dark. Inspector general audits ordered in the PATRIOT Act 
reauthorization revealed significant abuse of National Security 
Letters, and courts have found several PATRIOT Act provisions 
unconstitutional, including NSL gag orders, certain material 
support provisions, ideological exclusion provisions, and the 
FISA significant purpose test.
    There is also evidence that the government abused even the 
broadly expanded wire tapping authorities that Congress 
approved under the FISA Amendments Act. Congress needs to 
address all of these provisions and, indeed, this work is 
beginning. The ACLU fully supports both the National Security 
Letter Reform Act of 2009, sponsored by Chairman Nadler, and 
the Justice Act, a comprehensive reform bill introduced by 
Senators Russ Feingold and Richard Durbin last week. They 
should be acted upon promptly. Regarding the expiring 
provisions, the government's arguments for extending these 
authorities without amendment are simply unpersuasive. Unlike 
its criminal law counterpart, the John Doe roving wire tape 
provision of the PATRIOT Act authorizes the government to 
obtain secret FISA court orders to intercept communications 
without naming the target or making sure the wiretaps intercept 
only the targets communications. The government offers no 
explanation for why the roving wiretap authorities the FBI has 
used successfully in criminal cases since 1986, which better 
protect the rights of innocent persons, are insufficient for 
national security cases.
    This provision should be narrowed to bring it in line with 
the criminal wiretap authorities or be allowed to expire. As 
for the lone wolf provision, which authorizes government 
agencies to obtain secret surveillance orders against 
individuals who are not connected to international terrorist 
group or foreign nation, we now know it has never been used. 
The government justified this provision by imagining a 
hypothetical international terrorist who operates independently 
of any foreign power or terrorist organization, but there is 
little evidence to suggest this imaginary figure exists. This 
provision is overbroad and unnecessary, and should be allowed 
to expire. The third expiring provision, section 215 or the 
library records provision is also rarely used. Only 13 section 
215 applications were made in 2008. But that doesn't mean there 
isn't abuse. The IG reported that in 2006 the FBI twice asked 
the FISA Court for a section 215 order seeking tangible things 
as part of a counterterrorism case. The Court denied the 
request both times because ``the facts were too thin and the 
request implicated the target's first amendment rights.''
    Rather than re-evaluating the underlying investigation 
based on the court's first amendment concerns, the FBI 
circumvented the court's oversight and pursued the 
investigation using national security letters that were 
predicated on the same information contained in the section 215 
application. This incident reveals the danger of looking at 
these separate authorities piecemeal. Narrowing one authority 
might simply lead to abuse of another. There have been many 
significant changes to our national security laws over the past 
8 years, and addressing the excesses of the PATRIOT Act without 
examining the larger surveillance picture may not be enough to 
rein in an abusive intelligence gathering regime. Congress 
should conduct a comprehensive examination of all the laws, 
regulations and guidelines that prevent government surveillance 
of Americans without suspicion of wrongdoing.
    The American Civil Liberties Union encourages Congress to 
exercise its oversight powers fully, to restore effective 
checks on these executive branch surveillance powers, and to 
prohibit unreasonable searches and seizures of private 
information without probable cause based on particularized 
suspicion. Thank you.
    [The prepared statement of Mr. German follows:]

                  Prepared Statement of Michael German

    Mr. Nadler. I thank the witnesses. I will recognize myself 
to begin the questioning for 5 minutes. Mr. German, will you 
restate briefly, you said that section 206, roving wiretaps, 
had broader authority and less safeguards than the criminal 
roving wiretaps. And what was the specific one you cited?
    Mr. German. That it doesn't compel the identification of 
the person or require the government to determine that the 
person is actually using the communication device.
    Mr. Nadler. And therefore it can be used pretty widely. Mr. 
Wainstein, why should not the section 206 contain that 
protection or that requirement that's in the criminal version 
of the roving wiretaps?
    Mr. Wainstein. Well, as to the authorization to issue an 
order based on a description as opposed to the identity of the 
person, that particular issue, that's just, that's a 
recognition of the reality of what we're dealing with when 
we're dealing with people, foreign spies and terrorists. These 
are people who we often don't know the name of.
    Mr. Nadler. And you don't have the same situation in the 
criminal context?
    Mr. Wainstein. Less frequently. It's less frequently a 
problem because sometimes we do have people who come in--let's 
take it outside the context of foreign terrorism, foreign 
espionage, which are crimes, and look at drug trafficking. 
Yeah. Sometimes there are people whose names we don't know. But 
in the foreign intelligence context, the people who come in 
here who are spies and operatives of foreign intelligence 
services go to great lengths to hide their identities. So we 
often will not know. But we'll know darn sure that they are a--
    Mr. Nadler. In other words, you'll know his appearance but 
you won't know his name?
    Mr. Wainstein. Well, we'll have watched him. We'll have 
seen him with physical surveillance. We might have gotten a pen 
register and seen that he's got contacts with other people who 
are known operatives. And keep in mind, we can only get the 
FISA court order if we show sufficient specificity in our 
description of the person to satisfy the court.
    Mr. Nadler. Okay. Mr. German, why would you disagree with 
    Mr. German. Well, I don't think there's been a sufficient 
showing. I mean, I would love for government to publish how 
this authority has actually been used and then we can have a 
debate based on the facts.
    Mr. Nadler. Ms. Spaulding, you alluded to the same thing in 
your testimony. Could you comment on this little dialogue here?
    Ms. Spaulding. Yeah. I am sympathetic with the challenges 
that the government might face in knowing the name of the 
target of the surveillance. I think then that it is very 
important that the statute explicitly require that this target 
be identified with sufficient specificity to eliminate or 
significantly reduce the risk that the wrong person is going to 
be targeted. And the risk is enhanced when you come to a roving 
wiretap where you're changing facilities and instruments that 
you're tapping. So to require great specificity in the 
description of the target, and also a showing by the government 
that there are reasonable grounds to believe that that 
particular individual is going to be proximate to and using 
that instruments, becomes very important.
    Mr. Nadler. And the great specificity would be the same as 
or similar to what we have in the criminal code?
    Ms. Spaulding. It would be similar to. But, again, I'm 
comfortable with having the government not knowing the name of 
the target if they are able to describe that individual with 
sufficient specificity.
    Mr. Nadler. Thank you. Now, Ms. Spaulding, you noted in 
your written statement that Congress should consider requiring 
the government to set forth in the initial application the 
grounds upon which it believes the disclosure of a section 215 
order would be harmful. Why do you believe that this 
consideration is important? And when you answer the question, 
talk also about the NSL, with a similar question.
    Mr. Evans. Can you ask that question again? I don't have a 
hearing aid with me.
    Mr. Nadler. I'm sorry. I said I asked--Ms. Spaulding had 
said in her testimony that it is important that we should 
consider requiring the government to set forth in the initial 
application the grounds upon which it believes the disclosure 
of a section 215 order would be harmful; in other words, why do 
we need the gag order? I am asking Ms. Spaulding, why do you 
believe that this consideration is important. And when you 
answer the question, comment on the NSL context as well as the 
section 215 context, please.
    Ms. Spaulding. Thank you, Mr. Chairman. I think it's 
important for a number of reasons. And it is particularly 
relevant in the section 215 and NSL letters when they are 
delivered to third party record holders, when it's delivered to 
a business asking for the records of a third party, of another 
individual, because they really have very little incentive to 
challenge the gag order, to challenge the underlying order 
itself or to challenge the gag order. It is not in their best 
interest to have it publicized that they are handing over to 
the government customer information. And so putting the burden 
on the recipient of the order to challenge that requirement not 
to disclose really dramatically reduces the likelihood that 
it's going to be challenged and, in fact, with regard to 
challenging underlying orders, the Department of Justice letter 
acknowledges that no recipient, no business recipient of a 215 
request has ever challenged the order, which I think is pretty 
compelling evidence----
    Mr. Nadler. So the whole debate that we had last time 
during the reauthorization of the grounds for challenge might 
be a little irrelevant?
    Ms. Spaulding. And the Second Circuit recently ruled in the 
context of national security letters that, in fact, putting the 
burden on the recipient as opposed to on the government raises 
some real serious constitutional issues.
    Mr. Nadler. Thank you. I just have one more question. Mr. 
German, the 2008 IG report on the FBI's use of section 215 
orders noted that the FBI issued national security letters, and 
the Chairman alluded to this, after the FISA court denied 
requests for section 215 orders to get the same information. 
The FISA court said this implicates first amendment concerns. 
You can't get the order so they just went and issued NSLs to 
themselves. The Court based its denial on first amendment 
    In your opinion, as a former FBI agent, do you believe the 
FBI is using NSLs to evade the requirements of section 215 
orders, especially given the relative low number of section 215 
orders that are issued in contrast to the very large number of 
NSLs; and if so, what should we do about this problem?
    Mr. German. I don't know if I can say in the context of my 
experience as a FBI agent because I didn't work with that----
    Mr. Nadler. In the context of all your experience.
    Mr. German. But certainly, the facts that were related in 
that Inspector General report reflected that there was a great 
concern about the first amendment violations that were 
occurring in this request for documents. So the fact that the 
FBI continued and ignored the Court's advice, I think, does 
show abuse and, you know, clearly the report details 
considerable abuse of national security letters.
    Mr. Nadler. But that also would show, would it not, that if 
the FISA court refused to grant a 215 order because it said the 
facts implicated first amendment concerns that should prohibit 
it, the NSLs should also not have been issued because of the 
same first amendment concerns, but that there was no check on 
the power of the FBI to make sure of that.
    Mr. German. Exactly right, that there was no outside check 
allowed the abuse to happen.
    Mr. Nadler. My last question. Mr. Wainstein, how should we 
fix that? In other words, how do we ensure that FBI or the 
Justice Department, which doesn't have to go to court to get an 
NSL order, that the proper safeguards are there so that you 
can't implicate the first amendment the way the Court said you 
couldn't do it in the 215?
    Mr. Wainstein. Well, I think you'd have to take a sort of 
broader view of it first. This is not the only administrative 
subpoena authority out there. There are 300 some administrative 
subpoena authorities on the criminal side used every day every 
minute of every day around this country by Federal authorities, 
and they have different requirements but essentially the same 
idea, that they're issued directly by the Agency to people who 
possess third party records.
    So this is not an anomaly here. The NSLs are not an 
anomaly. They're actually a tried and true part of the tool kit 
that law enforcement and intel have used for years. Secondly, 
keep in mind this is one incident that was highlighted by this 
IG report that otherwise--there was one other, but this is the 
one that sort of got the most attention, that looked at, you 
know, a lot of activity and they found this one concern. I 
don't believe that this is symptomatic of a broader problem 
that the FBI is going out to try to subvert the first 
    Keep in mind, these are different investigative 
authorities. 215 has a different standard it has to meet. The 
FISA court found that the information was thin and didn't want 
to issue the order and said that they thought it might--I can't 
remember the language but the investigation might be based on 
first amendment activities. I'm quite confident that the 
general counsel's office did not just lightly blow off the FISA 
court opinion; that they did go back and look at this and 
decide that under the different standards for NSLs that it was 
    Mr. Nadler. Thank you. My time is well expired. I will now 
recognize the gentleman from Wisconsin.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman. I'm 
very curious at the fact that most of the discussion of the 
questions and answers has been on national security letters. 
And I want to make it clear, again, that national security 
letter authority was not one of the expanded authorities given 
to law enforcement by the PATRIOT Act. The national security 
letter law was passed in 1986, 15 years before the PATRIOT Act, 
under legislation sponsored by Senator Leahy of Vermont. And 
much of the adverse legal decisions on this entire issue have 
been relative to the Leahy national security letter law, rather 
than the Sensenbrenner PATRIOT Act.
    And I do take a little bit of a pride of authorship in the 
fact that with the Sensenbrenner PATRIOT Act, 15 of the 17 
expanded law enforcement provisions either went unchallenged as 
to their constitutionality in almost 8 years, or in one case, 
there was a constitutional challenge that was withdrawn. The 
two sections of the PATRIOT Act that were held unconstitutional 
in the Mayfield case by the District Court of Oregon, which is 
currently on appeal, involved whether FISA orders violated 
fourth amendment. And there is a string of cases from other 
courts that have reached the opposite conclusion that FISA 
orders do not violate the fourth amendment.
    And I think the Supreme Court is going to end up deciding 
that issue definitively when the case gets up there. So all of 
this hyperbole that the PATRIOT Act has been a blatantly 
unconstitutional enactment of Congress that tramples on civil 
rights is simply not born out by the litigation that has 
occurred in the almost 8 years that the PATRIOT Act has been 
law. And I really would admonish people, both in this room and 
out of this room, to look at the fact that 15 of those 17 
expanded authorities of law enforcement, nobody has bothered to 
    Now, if it isn't unconstitutional, and it's working, then 
really, I don't think that we should break something that 
doesn't need fixing. And I'm afraid that that's where we're at. 
So I would like to, at this time, ask unanimous consent to 
include in the record a lengthy letter from Robert F. Turner, 
Associate Director of the Center for National Security Law at 
the University of Virginia law school that talks about the 
three expiring provisions of the PATRIOT Act, which is what we 
ought to be talking about here, none of which have been even 
    Mr. Nadler. Without objection.
    Mr. Sensenbrenner. I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman. I now recognize the 
distinguished Chairman of the full Committee, the gentleman 
from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman. I want to commend all 
of our witnesses here today, including Mr. Wainstein, who's 
been very forthcoming. And I want to commend former Chairman 
Sensenbrenner too. He mentioned the Sensenbrenner PATRIOT Act. 
Of course, I mentioned the Sensenbrenner/Conyers PATRIOT Act 
that got doused in the Rules Committee.
    That was a very mysterious activity in which nobody ever 
found out--there were no fingerprints on the new bill, that the 
Sensenbrenner PATRIOT Act, which I suppose Mr. Sensenbrenner 
wrote that night and got it up there, because nobody ever saw 
it in the Judiciary Committee. But it's one of those mysteries 
in the legislative process that have not been fully examined. 
And maybe some day we'll get a Judiciary Committee Chairman or 
maybe even a constitutional Subcommittee Chairman that will 
step up to the plate and find out how a several hundred page 
bill could be substituted for another in the middle of the 
    The Rules Committee was meeting after midnight when this 
was acted upon. And I only digress to show you that there's 
been bipartisanship on the Judiciary Committee. There are very 
few important bills in which every Republican and every 
Democrat votes in its favor, and that's what happened to the 
Sensenbrenner/Conyers. But then whatever else happened to it is 
one of those problems that need further investigation. Now, the 
witnesses have raised, I think I stopped counting at about 11, 
there are a number of small problems that need to be cleared up 
about reissuing the three provisions that have an expiration 
    Now, I set that aside from the reconsideration of the rest 
of the PATRIOT Act that doesn't have any expiration date. And 
I'm sure our Chairman is going to be--has got a fix or a feel 
for that. I will yield to him if he wants to tell me what it 
is. But I go along with him.
    Mr. Nadler. Well, we're going to be looking at all the 
sections of the PATRIOT Act as we look at this. We're going to 
use the opportunity provided by the expiration of these three 
sections to look at all the other sections as well as section 
505 which is the national security letter, which although as 
Mr. Sensenbrenner said, did predate the PATRIOT Act, was 
considerably amended by the PATRIOT Act.
    Mr. Conyers. Could I ask the witnesses what further, after 
having heard each others' testimony here, what else would you 
add to any of each others' comments or what would you want this 
Committee to know about everything--here is our former 
colleague heading a bipartisan committee. Here is probably the 
most experienced lawyer on the intelligence law before the 
Committee. We have the American Civil Liberties Union, which 
has participated in more privacy cases, civil liberties cases, 
civil rights cases than anybody else. And also a distinguished 
member of the Bar who has some very profound experience 
himself. What do each of you think about--I don't want to put 
it this way--each others' testimony?
    Mr. Evans. I think it's a great thing to have this 
oversight responsibility that you've accepted on this 
Committee. And I would like to make one point, and that is the 
challenges, the limited number of challenges to the various 
provisions. It would take, if you're an innocent person, it 
would take a very courageous man or woman to make that 
challenge because of the image that's created. And so I think 
that's the reason there have not been more challenges.
    Mr. Conyers. Also, the bill they'd get from their lawyers 
too would be another preventive, would dissuade a lot of 
people. You know, taking on the United States government is not 
something that you can walk into any law office and say, well, 
I think they're totally wrong here. I'm innocent. Or at least--
and I want to handle that, and I can tell you what the average 
law firm would say. And I want to have Mr. Wainstein comment on 
that. They would say, do you have about $150,000 to continue 
this conversation? What about it Wainstein? You're a partner, 
full fledged.
    Mr. Wainstein. We're just looking for a righteous case, 
sir. That's all. Give us a righteous case. That's all we want.
    Mr. Conyers. Well, I know your law firm is good on pro bono 
work. But when you get one of these walking into the office and 
you decide to take it, without consideration of the legal cost 
that may be incurred, it's a pretty heavy duty. Mr. German?
    Mr. German. You know, as I mentioned in my testimony, one 
of the problems with these authorities is that they are 
exercised in secret. And I think having more facts in the 
debate would be very helpful to everybody, especially members 
of the public in trying to understand the arguments on both 
sides. And I commend the Department of Justice for their letter 
where they actually revealed the number of times these 
authorities were use. But I think how they are used and when 
they are used is also very important. And you know, obviously 
there is a need to protect some national security interests. 
But I think the excessive secrecy is really harming the public 
debate on this issue.
    Mr. Nadler. I thank the gentleman. The gentleman from Iowa 
is recognized.
    Mr. King. Mr. Chairman, I thank the witnesses. This has 
been interesting testimony, interesting dialogue. And I was 
unaware of the Sensenbrenner/Conyers bill until I heard the 
testimony here. And I would trust that that came out of a very 
serious effort to try to provide safety and security for the 
American people in the immediate aftermath of September 11. And 
I listened to the Chairman's lament that that bill didn't 
arrive to the floor in the same condition that it left his 
oversight. I understand the sentiment, Mr. Chairman.
    Mr. Conyers. Would the gentleman, distinguished gentleman 
from Iowa yield?
    Mr. King. Of course I'd yield to the Chairman.
    Mr. Conyers. This was before your time, sir. You weren't 
even here.
    Mr. King. And that would be why I don't remember it.
    Mr. Conyers. Well, apparently.
    Mr. King. Thank you, Mr. Chairman. Now I don't feel so 
badly for not being completely tuned in to the history. It, 
however, did trigger my memory of how the bankruptcy cram down 
bill came out of the Committee with the King amendment and 
didn't arrive at the floor with the King amendment on it. So I 
thought it would be useful to bring the subject up so we could 
both be refreshed on the history of this Judiciary Committee, 
Mr. Chairman.
    Mr. Nadler. Will the gentleman yield?
    Mr. King. I'd yield.
    Mr. Nadler. I'd point out that whatever the merits of that 
situation, that was one amendment. We held in this Committee, I 
think, 5 days of markup on the PATRIOT Act and achieved 
unanimity, with many amendments from both sides of the aisle 
being approved, not on party line votes. We achieved a 
unanimous vote. And then the bill just disappeared, completely 
disappeared, and we had a new, several 100-page bill. The 
PATRIOT Act we have today was a new, several 100-page bill that 
appeared fresh from the head of Zeus or the Rules Committee, 
and voted on literally the next day, hot from the printer that 
nobody had a chance to read. That was unfortunate.
    Mr. King. Reclaiming my time, and perhaps even resetting 
the clock, I would wonder if maybe the Chairman of the 
Subcommittee and the full Committee might wish to join me in my 
endeavor to move the Rules Committee to the floor of the full 
House, because the business of this Congress takes place up 
there in the hole in the wall rather than in front of the light 
of the public eye. Anybody care to respond to that while we are 
having this dialogue?
    Mr. Nadler. I will simply respond by saying I am not sure 
what you mean by move the Rules Committee to the floor of the 
House, and it is not before this Committee anyway, but we 
should certainly discuss it, whatever it is.
    Mr. King. I appreciate that response. And maybe we could 
just move the light of day up to the hole in the wall. And now 
I will turn my attention to the panel who is here to testify 
and enlighten all of us, and by the way, everybody that is 
watching these proceedings. And I am curious, as we look back 
on the history, and I would direct my first question to Mr. 
German, I am curious about the position of the ACLU during that 
period of history in the immediate aftermath of September 11, 
as the bill that was crafted in this Committee and the long 
markup that was had and the one that came to the floor, did you 
have a position on the overall base bill, on the amendments, 
and a position on the bill as it came to the floor for a vote 
in support or opposition, Mr. German?
    Mr. German. And I also wasn't at the ACLU then, I was in 
the FBI then. So my recollection maybe isn't perfect. But I 
understand that they did offer statements that are in the 
record urging that there be caution and moderation in 
responding, and trying to discover the facts before 
    Mr. King. But perhaps not in opposition to the PATRIOT Act 
as it came to the floor for final passage?
    Mr. Nadler. Would the gentleman yield?
    Mr. King. I would yield.
    Mr. Nadler. I don't remember what the ACLU said about the 
bill that came out of this Committee, but they were most 
certainly in opposition to the bill on the floor.
    Mr. King. On the floor.
    Mr. Nadler. Yes.
    Mr. King. Thank you. I appreciate that clarification. Those 
little tumblers of analyzing history are helpful to me. And the 
discussion that we have on the reauthorization of these three 
particular sections of the PATRIOT Act that I would ask Mr. 
German, have you or your organization been involved in drafting 
alternative legislation that you have put together that is 
useful for this Committee to be aware of?
    Mr. German. Have we been involved in--we have been offering 
suggestions, yes.
    Mr. King. Conceptually or specific language?
    Mr. German. I am sure over time specific language often.
    Mr. King. Well, thanks for that clarification, too. That is 
not a zone that I work in very much. I didn't have a feel for 
that. Do you have examples of individuals whose constitutional 
rights have been, you believe, violated under any of the three 
sections that we are considering reauthorizing?
    Mr. German. No, because we don't know who they have been 
used against.
    Mr. King. And even though some of them are bound to 
confidentiality, doesn't it happen, from time to time, that 
people will breach that confidentiality if they believe that 
their constitutional rights have been breached?
    Mr. German. I am not sure they would know that these--the 
FISA authorities usually don't alert the target of their 
    Mr. King. Let me submit that we have had as a subject of 
the various Subcommittees of this Judiciary Committee subjects 
who were before us anonymously because of certain allegations 
that were made about their history. And I am going to keep them 
anonymous, so I won't define them any further. And it would 
strike me that if there were some significant constitutional 
violations that it would take individuals to bring those kind 
of cases, we could go beyond the hypothetical and then just 
simply deal with a defined personality, whether it be an 
individual or not. Why don't I hear about that? Why don't I 
hear about even a hypothetical individual beyond the 
generalities that we have discussed here? Why isn't it more 
specific if there are constitutional rights that are at play 
    Mr. German. Well, any use of an unconstitutional authority 
is an abuse. It is unconstitutional.
    Mr. King. But a person has to have standing.
    Mr. German. Because the person doesn't know. And nobody in 
the public knows. Only the government knows who these 
authorities are being used against.
    Mr. King. Then how, if no one knows, aren't we back to if a 
tree falls in the forest?
    Mr. German. Well, when it revolves around the 
constitutional rights of Americans. I think we have to make 
sure that we are protecting those rights. And that is the 
obligation, is to protect the Constitution and the rights of 
    Mr. King. One of those obligations----
    Mr. Nadler. Would the gentleman yield for a second?
    Mr. King. I would yield.
    Mr. Nadler. Just to clarify, I think what is being said is 
that if you are being wiretapped unconstitutionally, without 
any proper evidence, et cetera, you won't know about that, and 
therefore you can't bring the case. And it may be that nobody 
knows about it, but still your rights are being violated.
    Mr. King. And I understand that explanation. I just don't 
quite accept how, if constitutional rights have been violated 
and no one knows it, if there has actually been an effect of a 
violation if it can't be identified. And I will take you off 
this hypothetical path, and I would turn then to Mr. Wainstein. 
Are you aware of any individuals whose rights have been 
violated? And are you aware of cases that have been resolved 
and American people that have been protected because of the 
utilization of the PATRIOT Act? And I will just leave that 
there and open the question to your response.
    Mr. Wainstein. Well, sure, the PATRIOT Act has been 
tremendously helpful, and Director Mueller has testified on 
countless occasions how it has really----
    Mr. King. And within these three sections, if you could.
    Mr. Wainstein. Within these three sections I know that it 
has been used, I watched it--two of the three sections, one has 
not been used but two of the provisions, I watched them get 
used, watched how the information was then integrated into the 
investigation, how important it was. And without getting into 
specifics, I mean, you can see just the roving wiretap, you can 
see how critical that is. Because nowadays, you know, you can 
get cell phones for pennies almost, throw them away, and start 
a new one an hour later. And if the government has to go back 
to the FISA court with a 70-page document every time someone 
throws away a cell phone, they are going to be stymied in their 
ability to surveil somebody. So that just on its face it is 
clear how critical that is both in criminal investigations as 
well as----
    Mr. King. But isn't there a constitutional distinction 
between a roving wiretap and the previous FISA law that was 
designed for land lines? A constitutional distinction?
    Mr. Wainstein. Well, there is constitutional debate over 
whether that is constitutional, but the courts that have looked 
at the roving wiretap authority in the criminal context have 
found it constitutional.
    Mr. King. That is my point next. I thank the gentleman and 
the witnesses and appreciate the dialogue, Mr. Chairman. I 
yield back.
    Mr. Nadler. Thank you. The gentleman from Georgia is 
recognized for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman. If the appropriate 
Committee were to look at the proceedings of the Rules 
Committee and decide to require that those Committee meetings 
be held on the floor of the House, as has been suggested, I 
believe the number one, smoking gun piece of evidence would be 
the Sensenbrenner PATRIOT Act bill, the 700-page one. That is 
an intriguing issue as to how that occurred. That is one of the 
big mysteries of our time. Kind of like the beginning of the 
earth and how big is the solar system, or are there any other 
solar systems, you know, those kinds of things. But let me ask 
this question. With respect to section 215, wherein the FISA 
order can also require or contain a gag order, how long does 
the gag order last? Is there any limits on how long it lasts or 
the scope of the gag order?
    Mr. Wainstein. Sir, I am not sure if that question is to 
me, but----
    Mr. Johnson. Sure.
    Mr. Wainstein.--I will take a crack at it. There is a 
nondisclosure order that comes along with a 215 order, similar 
to the NSL context. And it does say that the person who 
receives that order is not to disclose it to anybody else. But 
then there are exceptions. You are allowed to disclose the fact 
of the order to your attorney if you are seeking counsel from a 
lawyer. You are allowed to disclose to somebody, you know, if 
you are a bank and you need to go to a clerk to try get 
assistance to get records the government wants, you can 
disclose the fact of the order to that person. But then you are 
allowed to challenge it. There is also a process that was put 
in place and was carefully crafted in the context of the FISA 
reauthorization--I am sorry, PATRIOT Act reauthorization back 
in 2005, 2006, Congress put in place an elaborate mechanism for 
challenging not only the validity of the order itself as to 
whether the 215 order is oppressive or otherwise unlawful----
    Mr. Johnson. Let me stop you here. And I appreciate those 
answers. Does the Act itself put any limitations on the length 
of time that the gag order would be in effect? Assuming there 
would be no challenge by the third party to it?
    Mr. Wainstein. A recipient can challenge it after a year. 
So after it is in place for a year a person who has received 
the order----
    Mr. Johnson. If he or she or it does not challenge it, then 
it just goes on for year after year after year?
    Mr. Wainstein. You know, I believe that is the case. I am 
not aware of it expiring at any time.
    Mr. Johnson. And what happens if a FISA order is not 
responded to by the third party, a third party from whom 
tangible evidence, if you will, tangible things has been 
requested from? Suppose they just turn their nose up--suppose 
it was, let's say, the ACLU and, you know, the ACLU receives a 
FISA order. So first of all, they would be on the hook if they 
did not challenge it for an indefinite time. And secondly, what 
would happen if they decided to not respond or refused to turn 
over some information based on, say, a privilege? What would 
happen there?
    Mr. Evans. That is why our Liberty and Security Committee, 
that is a bipartisan group--by the way all of us act on a pro 
bono basis, and I do everything on a pro bono basis, but we 
believe that there should be some reasonable limitation, like 
30 days, so that you could then go out publicly and talk about 
it. But I go back to what the Chairman had initially said and 
what I had added, you know, you got to have awful deep pockets 
these days to bring challenges.
    Mr. Johnson. Suppose there is a non-deep pocketed third 
party from whom tangible documentation has been ordered under a 
FISA order, and that third party decides to violate the gag 
order? What happens in that kind of scenario?
    Mr. Evans. I would refer to the former Assistant Attorney 
    Mr. Wainstein. These orders can be enforced. They are 
orders of the Court. So if you defy the order----
    Mr. Johnson. Would they be enforced in the secret FISA 
    Mr. Wainstein. For the 215 orders, yes. In the NSL context 
or grand jury subpoena context, it would be a regular district 
court. That is my understanding.
    Mr. Johnson. So it is possible a person can be locked up 
secretly for violating the FISA order. It can be an indefinite 
detention, if you will.
    Mr. Wainstein. You know, I am not sure about that, sir. The 
FISA statute, as amended by the PATRIOT Act reauthorization, 
lays out a process by which you can challenge, you as a 
recipient can challenge that FISA court order. You go to court 
and you challenge it and say I don't think I should have to 
turn these being documents over, and here are the reasons. And 
if it is, as you said, a privilege, and it is a legitimate 
privilege, then the court would I think say okay, fine, you 
have got a privilege and craft a resolution. But if you do not 
have a basis for challenging the subpoena or the 215 order 
other than the fact that you just don't want to turn the 
documents over, it is a legitimate court order and the court 
has the authority to enforce it, just as with----
    Mr. Johnson. Can you appeal that FISA order ruling by the 
FISA court?
    Mr. Wainstein. Yes. You can appeal FISA court rulings to 
the FISA Court of Review.
    Mr. Johnson. Who would it be appealed to?
    Mr. Wainstein. It is a court, an appellate court that 
issues opinions. It is I think three judges sit, I believe, on 
each hearing. And I think it has only issued two opinions, 
right? But it would be appealed to them. So you do have the 
full process.
    Mr. Johnson. Thank you, sir. And thank you, Mr. Chairman.
    Mr. Nadler. Thank you. And finally, the gentleman from 
    Mr. Gohmert. Thank you, Mr. Chairman. And I appreciate the 
panelists and your input. It is a tough issue. And it was back 
apparently when it first passed as a bill. And then 5 years ago 
when we took it up, I was one of the, I guess, couple of people 
on the day that we passed out of Committee on the Republican 
side that was adamant about the need for sunsets so we would 
have people come in and talk to us about how these powers had 
been used. The one provision regarding cell phones, and you 
make great points, how do you use conventional methods when we 
have throwaway cell phones?
    Those were never anticipated in the original methods of 
pursuing the bad guys. And in looking at the September 21 story 
about, the headline here is Terror Probe Prompts Mass Transit 
Warning, but I see the word cell phones mentioned a number of 
times in the story. Do we know if any of the powers granted 
under the PATRIOT Act were utilized in bringing to light this 
alleged terror plot? Anybody know?
    Mr. Wainstein. I don't believe there has been a reference 
in the press to any specific tools.
    Mr. Gohmert. That were used.
    Mr. Wainstein. Not that I have seen.
    Mr. Gohmert. Okay.
    Ms. Spaulding. And in fact, the earlier witness, Mr. Hinnen 
from the Justice Department, was careful with his words not to 
suggest whether they were or were not.
    Mr. Gohmert. Okay. I will wait to read how we did that in 
The New York Times. I am wondering, in the last year there was 
information that came out about a wiretap conversation with one 
of our Members, Jane Harman. Was that wiretapped under this 
provision of the PATRIOT Act? Does anybody know? I am just 
curious. Apparently I take it by your silence nobody knows. I 
see the need there, and it being critical to proper law 
enforcement. And it was apparently such an important tool to us 
not being attacked again during the Bush administration. But 
coming forward to the NSLs, you know, in the PATRIOT Act, the 
power was expanded to allow field offices to make NSL requests 
as opposed to the FBI headquarters. I think at the time the 
PATRIOT Act passed, most of us here on this Committee were not 
aware of just how profound the effect of Director Mueller's 5-
year up or out policy would be and had been that we have lost 
thousands of years of experience because of that. Policy 
basically being if you are in charge, in a supervisory position 
for 5 years in the field, then you have to either move to 
headquarters here in Washington or take a demotion or get out.
    So 5-year up or out. So I am wondering, in view of Director 
Mueller's policy, having lost thousands and thousands of years 
of experience, and recalling Director Mueller saying after the 
vast abuses of the NSLs came to light saying that he took 
responsibility for not having the experience and training in 
the field to properly monitor those NSLs, if maybe we should 
pull back the NSL authority to the FBI headquarters, where the 
Director has pulled so much of the remaining experience.
    I just know that when this passed, that was not really an 
issue on the radar screen. But it does seem to make sense that 
that could be a reason there were so many abuses reported by 
the inspector general. You just didn't have the experience. You 
know, some office is going from 25 years experience in charge 
to six, good people all, but experience does make a difference. 
So I would be interested in comments from our panelists on that 
issue, as to whether that might be something we need to look at 
as far as pulling the power back to FBI headquarters. I would 
really like to hear from everybody, if you have got a comment.
    Ms. Spaulding. Congressman, I think that is a very 
interesting suggestion. And clearly, since the inspector 
general came out with its report, the FBI has tightened its 
procedures and has taken steps to try to ensure that they 
reduce the number of mistaken uses and abuses of national 
security letters. But I think----
    Mr. Gohmert. I think I recall the Director saying we 
wouldn't find any evidence in the rest of the offices of that 
kind of abuse.
    Ms. Spaulding. Another possibility that you might consider 
is enhancing the role of the National Security Division at the 
Department of Justice in terms of oversight and managing the 
national security letter process.
    Mr. Evans. I think it is a very important issue that should 
quite appropriately be addressed.
    Mr. Wainstein. If I can, Congressman Gohmert, I don't know 
the quote you referenced just now about how Director Mueller 
said you would not find those abuses in any field offices.
    Mr. Gohmert. After it came to light, he said they had done 
a full audit of all the other offices that the IG had not had a 
chance to inspect, and we wouldn't find abuses like that again.
    Mr. Wainstein. They did do a full audit. And actually, I 
was in the National Security Division at the time, and it was a 
huge deployment of people. They went out and audited all the 
field offices. And they found the incidence of mistakes which 
was basically consistent with the incidence level that Glenn 
Fine had found, the IG report had found.
    Mr. Gohmert. Right.
    Mr. Wainstein. But I think what he might have been 
referring to, I am guessing here, but the exigent letters, 
which were sort of the more abusive aspect of it. He might have 
been saying that was probably not something that migrated out 
to the field offices, because that was, I believe, primarily in 
headquarters. That might have been what he was talking about. 
The mistakes, though, were found in the field offices as well. 
My concern about your suggestion that maybe we pull the NSL 
authorizing authority back to FBI headquarters is that it would 
reduce--really it would add cumbersome bureaucratic 
requirements to getting an NSL out. And in the course of a fast 
moving threat investigation, you need to be able to get records 
quickly. And just the extra time and complication of having to 
go to FBI headquarters to get their approval would slow things 
down and could, you know, in the wrong situation be the 
difference between catching a terrorist and not catching a 
    I believe that the sort of better way of doing it is, as 
Suzanne said, make sure that you have the necessary systems in 
place and the oversight. I think you heard from Mr. Hinnen 
earlier, and as Ms. Spaulding said, you know, since the Glenn 
Fine report, a lot of procedures have been put in place both in 
the FBI as well as in the National Security Division to make 
sure those kind of problems don't arise again. And it is sort 
of interesting, as a side line, you look at let's say the SEC 
right now in the aftermath of what happened last fall and the 
questions about how they should change their operations. What 
is one of the first things that has come to the fore is 
suggestions to delegate the authority to take certain 
investigative steps lower down, to make the investigators more 
nimble, to be able to build cases more quickly. Same kind of 
thing that we saw in the FBI. And that is the natural reaction 
when you have an overly complicated system in place.
    Mr. Gohmert. All right. An example of the SEC, is that how 
Goldman Sachs was able to have their biggest profit in the 
second quarter, and someone supposedly overseeing that is also 
on their board, but our Treasury Secretary gave him a waiver, I 
believe, of that conflict?
    Mr. Nadler. The gentleman, I think that is a little afield. 
The gentleman's time has expired.
    Mr. Gohmert. Could I have the last panelist comment on 
    Mr. Nadler. Mr. German, you can respond briefly.
    Mr. German. Thank you. I agree that stronger internal 
oversight mechanisms are very important. But I would also argue 
that outside oversight is critical. And the strongest internal 
oversight mechanisms aren't going to be as effective as outside 
    Mr. Gohmert. By outside what do you mean?
    Mr. German. By this body, where it is applicable by the 
courts, whether that is the FISA court or the criminal courts. 
But also, I think the problem with the national security 
letters is that the scope was so broad, that that allowed the 
records of innocent people to be collected, and that was 
perfectly legal. And that is really where I believe the abuse--
    Mr. Gohmert. With the Chairman's indulgence, do you have a 
recommendation for how that broad scope could be tightened up?
    Mr. German. Sure. To bring it back into the pre-PATRIOT Act 
authority where you are using it against a suspected agent of a 
foreign power or a member of a terrorist group rather than just 
against, as the IG found, people two and three times removed 
from the subject of the investigation.
    Mr. Nadler. And that would be by restoring the language of 
    Mr. German. Right.
    Mr. Gohmert. Okay. Thank you.
    Mr. Nadler. I thank you. I thank all the witnesses. Without 
objection, all Members will have 5 legislative days to submit 
to the Chair additional written questions for the witnesses, 
which we will forward and ask the witnesses to respond as 
promptly as they can so that their answers may be made part of 
the record. Without objection, all Members will have 5 
legislative days to submit any additional materials for 
inclusion in the record. Again, I thank the witnesses. And with 
that, this hearing is adjourned.
    [Whereupon, at 1:35 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


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