USA PATRIOT ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 22, 2009
__________
Serial No. 111-35
__________
Printed for the use of the Committee on the Judiciary
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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
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
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
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
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
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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SEPTEMBER 22, 2009
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable 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
WITNESSES
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
Congress
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
Union
Oral Testimony................................................. 62
Prepared Statement............................................. 64
APPENDIX
Material Submitted for the Hearing Record........................ 113
USA PATRIOT ACT
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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
Sensenbrenner.
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
views.
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
quote.
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
statement.
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
investigations.
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
course.
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
School.
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.
TESTIMONY OF TODD M. HINNEN, DEPUTY ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE
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
authority.
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
minutes.
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
investigation----
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
to----
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
showing.
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
complete----
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
differ?
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
PATRIOT Act.
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
Justice?
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
times.
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
setting.
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
today.
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
requirements?
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
occurred.
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
improvements.
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
testimony.
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
proposal?
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
quote.
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
contexts.
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
organization?
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
Massachusetts.
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
Department.*
---------------------------------------------------------------------------
*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
Intelligence.
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.
TESTIMONY OF SUZANNE E. SPAULDING, FORMER STAFF DIRECTOR, HOUSE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
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
person.
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
minutes.
TESTIMONY OF THE HONORABLE THOMAS B. EVANS, JR.,
A FORMER REPRESENTATIVE IN CONGRESS
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,
please.
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
minutes.
TESTIMONY OF KENNETH L. WAINSTEIN, FORMER ASSISTANT ATTORNEY
GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE
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
power.
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
reauthorized.
[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.
TESTIMONY OF MICHAEL GERMAN, POLICY COUNSEL, AMERICAN CIVIL
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
that?
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
concerns.
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
amendment.
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
appropriate.
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
challenge.
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
challenged.
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
night.
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
date.
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
legislating.
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
surveillance.
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
here?
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
Americans.
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
General.
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
court?
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
Texas.
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
terrorist.
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
that?
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
oversight.
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
particularity?
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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Material Submitted for the Hearing Record
