Senate Judiciary Committtee
hearing on

Oversight of the Justice Department

July 25, 2002

[excerpt on FISA]

[...]

SEN. SPECTER: One other -- one other brief comment. The committee is considering the standards for issuance of warrants under the Foreign Intelligence Surveillance Act, and I've taken that up in detail with FBI Director Mueller, and I'm awaiting a response. But from the testimony of Agent Rowley and from what we have heard in our inquiry, this is something which I think you ought to look at, Attorney General Ashcroft because I believe that the FBI, and in turn the Department of Justice are not imposing the appropriate standard. They've got too high a standard. The standard that Chief Justice Rehnquist articulate in Gates going back to an 1813 decision by Chief Justice Marshall turns on suspicion. And I know the frustration you had with me on the Wen Ho Lee matter on the FISA. And we're going to be continuing our -- our inquiry there, but I think that's something, as soon as you've given me a standard on the issues I raised today that you might want to take a look at.

SEN. LEAHY: And -- and note the fact that both Senator Specter and I have signed letters on this and we have not gotten answers. I share the senator from Pennsylvania's concern that unnecessary hurdles are being put up by the justice -- the Department of Justice in seeking FISA warrants. I think a better job could be done. The senator from Pennsylvania has spent more time on this than any other member of this committee, and I hope those questions will be answered. And we -- we should go to Senator Schumer.

SEN. SCHUMER: Thank you, Mr. Chairman. And thank you --

ATTY GEN. ASHCROFT: May I just -- you know, the --

SEN. LEAHY: Yes.

ATTY GEN. ASHCROFT: -- we would like to work with you on this. The Constitution provides that no warrant shall issue absent probable cause, I believe is the -- is the language. And I know the concern that this committee has for observing the Constitution. Now, there's where the difficulty comes in reducing the standard for the issuance of warrants. Now, maybe there's a way to categorize things, not a warrant, and I don't know all this case law thoroughly, but that's been our sticking point. We'll be happy to work with you because we want to make sure we're doing what we can to make available every investigational tool to curtail terrorism.

SEN. LEAHY: General, the first thing you might do, though, is look very carefully at the questions that Senator Specter and I have sent you and we have not gotten answers to.

SEN. SPECTER: Just one final comment. I agree with you on the necessity for constitutional precision, but the Supreme Court has spoken on it in Cranch in 1813, Chief Justice Marshall, and then repeated in Illinois in Gates, picked up on the opinion of judge -- then Justice Rehnquist, that probable cause does not require a preponderance of the evidence more likely than not, and the opinions talk about suspicion, and that would pass constitutional muster. And when you deal with a warrant under the Foreign Intelligence Surveillance Act, as we know, without getting into the specific cases, we're just talking about the most deadly perils --

SEN. LEAHY: My -- eventually we're going to have to have a hearing specifically on this, probably it will have to be in a classified session, but we will have it. Again, the reason why we want you to answer the questions we have sent you.

[...]