this sharing of the subcommittee on the constitution civil rights and civil liberties will come to order welcome everyone without objection the chair is authorized to declare recess which the chair will do when they call votes on the floor detail recognize myself now for five minutes for an opening statement today sharing focuses on the law governing national security letters the widespread abuses of the authority given to the f b i to issue n s l s as documented in two reports by the department of justice's inspector general and propose legislation to address these threats to the liberty and privacy of law abiding americans a national security letter can be issued to a third party such as a health insurance company or an internet service provider ordering it to reveal all the information in its possession about you and your communications your transactions or the books you read the third parties prohibited from telling you or anyone else aside from the attorney or those processing the information about the order so you can object to the n f l in court as you could to a subpoena because you don't know about it and the third party may have no interest in going to court to protect your rights in fact we invited many of these third parties here today to testify that they were jackson disclosing that they had received and i shall request they were children engaging in this important debate which directly two thousand five amendments to modify a set aside the gag order if it finds there is no reason to believe that disclosure would endanger national security diplomatic relations or anyone's life or limb or safety but the court must accept the government's assertion of such harm as conclusive and cannot use its own judgement as to whether in fact such i would result since the government's assertion is conclusive there's no room for the court at all and the provision is meaningless addition the burden remains on the recipient of the about american citizens who are not reasonably suspected of being involved in terrorism that's why i have introduced along with a number of others the bipartisan national security letters reform act of two thousand and seven this legislation will protect americans against a necessary unsupported intrusions into their private lives and more importantly should prevent abuse of power by the government we need to fix the law to bring in line with the constitution to enhance checks and balances and in doing so to better protect the national security  found part of the n f l authority to be too bright and unconstitutional the provisions of state the n f l recipients are forbidden from disclosing the demand to target individuals or to almost anyone else but their attorney has already been struck down as a pre as a prior restraint repugnant to the first amendment another federal court found the n s o authority to be unconstitutional because it violates the fourth amendment protection against unreasonable searches and seizures the bipartisan bill that i  sponsor of would last authorize intelligence agencies to use and the cells with proper safeguards specifically it would restore the standards of the record so it pertained to a suspected terrorist or spy would give an n f l recipient the right to challenge the letter and its nondisclosure requirements a real right to challenge not with the not one to which the government assertion is dispositive we place a time limit on the gag order and allow for a court approved extensions of that time what it would provide a course of action to any person agreed by the illegal provision of records pertaining to that person as a result of an n f l issued contrary to law or of an n f l issued based on a show vacation made without factual foundation would give notice to the target of an n f l if the government seeks to use the records obtained from the n f l in a subsequent proceeding would give the target an opportunity to receive legal counsel and challenge the use of those records in such a subsequent proceeding would devise a minimisation procedures to ensure that information obtained pursuant to an n f l regarding persons that are no longer of interest in an authorized investigation is destroyed and would address the voluntary disclosure of customer communications or records that have been obtained through so called exit letters i do not think it's too much to ask the f b i to follow the constitution and the rule of has made a factual individual a showing that directive so it pertains to a suspected terrorist or spy we will help keep our law enforcement focused on real threats the type of this overbroad power to be curtailed is now and i am hopeful that we will be successful the abuses by self is proven time and again to be both undemocratic and ineffective it is not enough to mandate that the f b i fix internal management problems in recordkeeping because the statute itself on north i'm sorry the statute itself authorizes the unchecked collection of information must have intelligence gathering we need our safety but we must do our intelligence gathering the constitutional and legal checks to protect our privacy and our liberties as well as i say i want to welcome our witnesses i look forward to the testimony  this hearing h r thirty one eighty nine would in my sincere judgment render national security letters as ineffective as they were prior to nine one one and would further squelch the initial the initiation of vital terrorism investigations by changing the standards for such terror and terrorism investigations a bill would preclude many investigations that would otherwise be able to go forward and would do so in a manner directly contrary to the findings of two recent inspector general's reports and the nine one one commission which counseled against returning to the investigative models that failed to thwart the nine one one attacks h r thirty one eighty nine would also provide the subjects of terrorism investigations with more protections than they enjoyed by even larry domestic american criminals under the clear supreme court precedent such as united states versus miller that up polls that hold that no fourth amendment protections applied to business records handed over to third parties the f b i has testified as follows quote national security letters generally permit us to obtain the same sort of documents from third party businesses that prosecutors and agents obtain in a criminal investigation with grand jury subpoenas national security letters have been instrumental in breaking up cells like the local want to six and the northern virginia associates with deadly weapons and explosives in the cells also allow the f b i to link terrorists together financially and pinpoint pinpoint cells and operatives by following the money unquote according inspectors general's first report on s l's issued in march two seven two thousand and seven and ourselves were not an effective means of preventing terrorist attacks before the nine one attacks because quote prior to the patriot act agents national security letters for telephone and electronic communication transactional records from telephone companies and internet service providers records from financial institutions and information from credit bureaus only upon demonstrating quote specific and articulable facts giving reason to believe that the subject was quote an agent of a foreign power f b i agents told us that this prediction standard limited to the limited the utility of n s l s as an investigative tool f b i field and headquarters personnel who have worked with national secure letters before and after the patriot act believe that their use and effectiveness has significantly increased after the patriot act was enacted close quote i headquarters and feel personnel told the inspector general that they found national security letters to be instant indispensable for quote our bread and butter mr chairman h r thirty one eighty nine would dramatically stem the flow of information throughout the investigative process by effectively precluding their availability before the very first step can be taken down and investigate and of is in the investigatory would take a trail on the video screens right now so you can see that there is a diagram from the inspector general's report that shows all of us the investigative process that would be halted were national security letters authorizations limited from requests to fire so warrants for fires or warrants to the general intelligence reports to be shared with other agencies inspector general the inspector general report that information derived from national security letters quote most often is used for intelligence purposes rather than for criminal investigations close quote are three one eight nine would impose the failed model based on criminal prosecutions alone that failed to prevent the nine one one attacks as the nine one one commission itself concluded quote the law enforcement process is concerned with proving the guilt of persons apprehended in charged it was not designed to ask if the events might be harbinger of worse things to come nor it allow for aggregating and allies in fact to see if they could provide clues to terrorist attacks tactics more generally close quote mr chairman the inspector general's report issued in march two thousand and eight concluded that while  some regulators remained in the administration of national security letters the f b i had great progress in implementing procedures that will correct errors before they're made so oversight has been successful and i just want to add you know it's it's commonplace for to he critics of national security programs to quote benjamin franklin as saying quote if we surrender our liberties in the name of security we shall have neither close quote mr chairman those are not mr franklin's actual words accurately quoted mr franklin's words are much more revealing ben franklin wrote these words he said quote those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety close quote h r s thirty one eighty nine would protect no essential liberties and it would significantly weaken national security and i'm hoping mr chairman that long with the several other bills that have been before this committee that seem to protect terrorists more than american citizens that we can somehow get past this and with that i the back and i thank the gentleman without objection other members opening statements will be included in the record we have two distinguished panels of witnesses today our first witness is glenn fine the counsel to the i g in one thousand nine hundred sixty became the director of the office of inspector general special investigations and review unit before joining the office of inspector general mr pyne was attorney specializing in labor and employment law the law firm in washington  repair these hearings especially important because the witnesses make only a five minute statement summarizing their written testimony this is not a new issue for the bureau of the administration the bureau has commented on the ideas findings have provided testimony in the past a loss to understand why the bureau was unable to provide testimony events in view of the in view of the importance of the issue and the importance of mr pro nice testimony i will allow it to proceed but i must say the administration is too often refused to provide this committee with answers to appropriate cooperate in our work the rights of all americans at stake in this matter are great and i do not appreciate the investigation being treated in a cavalier manner without objection the written statements of the witnesses will be made part of the wreck in their entirety through the ask each of you to summarize your testimony in five minutes or less you keep there is a timing light to your table when one minute remains the light will switch from green to yellow and then to red in the five minutes are up before we begin it's customary for the committee to swear in its witnesses if you could p stand and raise your right hand to take the oath do you swear or affirm of the penalty of perjury that testimony about to give is true and correct to the best of your knowledge information and belief thank you let the record reflect th witnesses answered in the affirmative and you may be seated with that i will now ask that recognize mr fine for five minutes to find mr chairman ranking member franks and members of the  subcommittee thank you for inviting me to testify about the office of the inspector general's recent reports on the f b i s use of national security letters in section two fifteen orders over the last two years ago i g s issued two sets of reports on these subjects our first two reports issued in march two thousand and seven found widespread and serious misuse of national security letters last month as required by the patriot reauthorization act we completed two follow up reports which assess the use of national security letters in two thousand and six the f b i s response to our first report and the f b i s use of section two fifteen orders first however i would like to thank the o i g staff who worked on these reports for their outstanding efforts the three leaders of the team roslyn maser marley and michael gallager with me here today and i'd like to thank them for their work my written statement details the findings of our two recent reports in my oral statement today our briefly highlights some of these findings first a recent report on national security letters and a cell's concluded that the f b i and the department have made significant progress in implementing the recommendations contained in our first report and in adopting other corrective actions we found that the f has voted as devoted substantial time energy and resources toward seeking to ensure that his field managers and agents understand the seriousness of the f b i shortcomings and their responsibility for correcting these deficiencies among the actions that the f b i has taken include developing a new data system to facilitate the issuance and tracking of n s l s and to improve the accuracy of required data in congressional and public reports issuing numerous guidance memoranda and mandatory training to f b i employees on the proper use of venice cells and prohibiting the use of existent letters the f b i also has created a new office of integrity in compliance modeled after private sector compliance programs in addition the department's national security division is conducting reviews to examine whether the f b i is using various intelligence techniques including n s l s in accordance with a political laws guidelines and policies yet while the f department have taken positive steps we also concluded that additional work remains to be done for example a department working group was directed to examine how n f l derived information is used and retained by the f b i we concluded that the working groups an issue or proposal did not adequately address measures to label or tag n f l derived information or to minimize the retention and dissemination of such information a report also notes that the f b i still needs to address or fully implement several other key recommendations such as reevaluating the reporting structure for the chief division counsel in each f b i field office as required by the patriot reauthorization act a recent report also reviewed the f b i s use of n s l s in two thousand and six which it is important to note is a period before our first n f l report was issued in two thousand and seven a recent report found a continued upward trend in the use of n s l s with forty nine thousand requests in two thousand and six a four point seven percent increase from the previous year the percentage of n f l requests that related to investigations of u s persons also continue to increase to approximately sixty percent we also examine the f b i s own reviews of field case files which found a rate of n f l violations nine point four percent was even higher than what we found seven point five percent the number of possible intelligence violations identified by the field reviews was six hundred forty which is a substantial number more over two thousand and six the number of violations reported by f b i field offices was significantly higher than the number of reported violations in prior years a recent review also found that ninety seven percent of the n f l s in two thousand and six imposed nondisclosure and confidentiality requirements is also important to note that the most serious violations involving the use of n f l authorities in two thousand and six relate to the f b i s use of so called existent letters a practice by which the f b i improperly obtained telephone toll billing records from three communication service providers without first issuing n s l s the o r g is in the process of completing a separate investigation examining the use of these accident letters as well as the use of blanket and s l's and other improper requests for telephone records among other things our upcoming report will assess the accountability of f b i personnel for these practices as to our follow up report to section two fifteen orders we found that f b i agents continued to a can encounter processing delays for obtaining these orders the average processing time for such orders was hundred forty seven days we did not identify any illegal use section two fifteen orders in two thousand and six however our report discusses one in which the process has previously been issued for the records we're evaluating whether the number is relevant to any investigation currently open a corrective national security letter or a grand jury subpoena will be issued but the existed at that time is documented and the records are retained one example of such a situation would be in the phone records that we retained in the immediate wake of the disrupted plot to blow up jetliners  flew over the atlantic ocean if there is no currently open investigation and there was no emergency at the time we receive the records records from our files and destroyed and this has been a laborious time consuming process and i can sure can assure the efforts have been designed to ensure that the f b i does not retain any records that it should not have while maintaining those records that could be a dot that needs to be connected in order to keep the country safe in conclusion the f b i believes the national security letters are important tools in our national security arsenal and we're committed to using them effectively and i'm happy to answer any questions th permit us to obtain the same sort of documents from third party businesses and prosecutors that agents obtained in criminal investigations with the grand jury subpoenas essentially all the time but these are of course  domestic criminal investigations and have been instrumental in breaking up cells like the lackawanna six and the northern virginia jihad through the use of inner cells the f b i has traced sources of terrorist funding established telephone linkages that resulted in further investigations and arrests and allow the f b i to link terrorist together financially and pinpoint cells and operatives by following the money in other words it gives us dots to connect it's not just a line we don't just get a few triangles we get a picture that helps us solve or prevent some of these very serious potential acts of terrorism against americans same time doing everything we possibly can to observe the constitutional rights of anyone in america where they are otherwise that the effort here is truly tect american citizens and to defend ourselves in people on american soil to unconstitutional search and seizure or or are somehow forcing their civil rights and yet your are saying to me that this is a vital tool in being able to help noise that goes around around here and a lot of political grandstanding but the reality is here that the desire of this country is to protect its citizens to protect their constitutional rights and unfortunately terrorists have other ideas and they have to be dealt with in ways that we you know really have little alternative it's it's about an intelligence game if we knew where every television terrorist was in the world today and what they were up to their war on terror would be over in two months but unfortunately we don't so i just thank you for your service to the country and for doing everything you can to protect the citizens of this country that's correct thank you we thank the witnesses from the first panel we ask that the members of the second panel come forward and take their seats canada he's a graduate of williams college cambridge university and harvard law school bruce fine needs no introduction but i will introduce him anyway he's a graduate of harvard law school and joined us the point of justice was served as assistant director of the office of legal policy legal advisor to the assistant attorney general friend a trust and the associate deputy attorney general mr fein then was appointed general counsel of the federal communications commission followed by an appointment as research director for the joint congressional committee and covert arms sales to the words of the lawyers under supervision were responsible for providing legal advice to agents and analysts involved in counterintelligence and counterterrorism operations and for the production review of national security letters mr graduate harvard law school and and of oxford several trials and arguing appeals across the country from two thousand two thousand and three was associate deputy attorney general in that role as unclassified responsibilities included supervising the government's use of the foreign intelligence surveillance act of pfizer which has been somewhat the news lately representing the justice department to the national security council and in other interagency settings rethinking testifying before congress and assessing the attorney general is in conducting oversight of the u s intelligence community is an adjective fessor at georgetown university law center without objection written would be made part of the record their entirety we would ask each of you to summarize your testimony in five minutes to us as a reminder is a timing light at your table one minute remains the light was switching green to yellow and then to re when the five minutes are up before we begin it's customary for the committee to swear its witnesses if you would please stand in raise your right hand to take the oath do you swear or affirm of the penalty of perjury that the testimony you are about to give is true first witness for five minutes mr jaffer chairman now the ranking member franks thank you for inviting me to testify today about national security letters and h r three one hundred nine the national security letter reform act the n f l statutes invest the f b i with sweeping power to collect information about innocent people and they allow the agency to impose unconstitutional gag orders on n f l recipients mr nethers bill would introduce much needed safeguards for civil liberties while preserving the executives ability to collect information about people who actually pose threats i want to highlight two serious problems with the n f l statutes their impact on wholly innocent people and their authorization of unconstitutional gag orders the statutes permit the government to obtain records about people who are not known or even suspected to have done anything wrong because of changes made by the patriot act the f b i can compile vast dossiers about innocent people dossiers that can include information credit information and even information that's protected by the first amendment the inspector general's audit to confirm that the f b i is collecting information about people two and three times removed from actual suspects roughly fifty information that is extremely sensitive the f b i can compel an internet service provider to disclose the identities of people who have visited a particular web site a list of e mail addresses with which a particular person is corresponded or even the identity of a person who has posted anonymous speech on a political web site privacy current concerns aside congress must ask whether it serves national security to create vast databases of information about innocent people post nine eleven investigations found that over collection can divert resources away from the most important investigations and bury the most important information mr nethers bill will protect the the of innocent people while at the same time refocusing the government's anti terrorism resources on actual terrorists mr nabbous bill will also address a second problem with the n f l statutes the problem is that each of the n f l statutes allows the government to impose gag orders on n f l recipients these gag orders aren't subject to prior judicial review the f b i imposes them unilaterally and it's all recipients can challenge the gag orders in court but the judicial review is toothless it's the f b i that decides whether secrecy is necessary and the courts are required to defer to the f b i s decision now obviously secrecy is necessary and some national security investigations but the f b i has power to impose gag orders should be subject to meaningful judicial review without that review the power is easily abused the a c l u currently represents someone i'll call him john doe who was served with an n f l doe believes that the n f l was illegal but a gag order bars him from explaining why he holds that opinion or even from disclosing his own identity for four years now mr doe is been prohibited from telling the public why he believes the f b i is abusing its power and the f b i continues to enforce the gag order today even though it abandoned its demand for records more than a year ago the chairman's bill would prevent this sort of abuse this past september a federal court struck down one of the n f l statutes in its entirety the court held that gag orders must be subject to prompt additional review and that courts must be permitted to invalidate gag orders that are not narrowly tailored to a compelling government interest as long as the n f l statutes for close this kind of judicial review the statutes are unconstitutional and the government risks losing the n f l authority altogether mr now there's bill will align the n f l statutes with the first amendment gag orders will not be barred under the bill when secrecy is truly necessary but rather they'll be limited to those circumstances moreover the bill will ensure that gag orders are no broader than absolutely necessary absent an actual need for secrecy an internet service provider should be able to tell the public if it receives an n f l that seeks information about thousands of people and absent an actual need for secrecy a library should be able to tell the public if it receives an n f l that seeks information about first amendment activity mr nablas bill would protect first amendment rights while at the same time allowing for secrecy were legitimate national security concerns compelling the a c l u commencements are now there for introducing the bill thank you again for the opportunity to appear today mr chairman and just say that into the mike i thank the gentleman and now recognize mr fine for five minutes thank you mr chairman and members of the subcommittee i'd like to begin with some cardinal principles about the united states constitution in theory of government itself that i think should inform the relative balance between law enforcement privacy that's at issue when discussing national security letters john adams remarked that the fuel of the american revolution was james o disses protest against king george the third customs collectors invading every home in search of contraband or otherwise it was a privacy issue that was the heart of the american revolution and the idea that was ascendant was that the right to be left alone from government intrusions as justice louis brandeis explained is the most cherished amongst civilized people the right to be left alone it didn't mean that government could never intercede there obviously problems with many mischievous people in the community but that the government had to make a very powerful case to show why that right to be left alone should be disturbed moreover the founding fathers believe not that government should be weak but in exerting aggressive powers there should be checks and balances not this is an idea that was explained by justice robert jackson the united states v johnson now jackson spoke from some experience he was the nuremburg prosecutor he had seen the nazis firsthand and he explained that what the police often fail to remember is not that the law is against protecting criminals but that the decisions to make intrusions on privacy need to be checked and supervised by an outside party there a judge issuing a judicial warrant drawing inferences based from a neutral perspective rather than from the perspective as justice jackson put it the competitive enterprise of seeking to punish and capture criminals that is the background in which we come to approach the national security letters the right to be left alone is cherished the burden is on the government to show why this right should be invaded and moreover if so why there should be customary checks and balances let me outline what are the ways in which traditionally we try to check aggressiveness or needless intrusion on the right to privacy first with a grand jury with those our citizens who decide whether to issue a subpoena for records that are the type that are sought national security letters and the grand jur overseen by a judge and article three judge moreover as pointed out typically the subpoena is subject to disclosure and the sunshine we know as louis brandeis said sunshine is the best disinfectant so that published it is an additional deterrent to wrongdoing or misuse now the national security letters fall outside that customary framework that balances privacy against law enforcement there is no outside party that reviews the issuances national security letters it's the f b i deciding on its own moreover with a non disclosure rule you don't have the sunshine that can act as a deterrent as well now it's been observed correctly i think by congressman franks in the previous exchanges that certainly national security letters if you look have they produced useful information certainly they have but the decisive issue i think for the committee is why couldn't that information have been obtained through a customary grand jury proceeding or gathering intelligence under fire where typically you have a judge decide whether or not there is sufficient reason to intrude upon that cherished right to be left alone and i don't think the f b i has been able to explain what it is that they got with national security letters that they couldn't possibly have gotten if they used the regular way the founding fathers thought was sufficient i think that when you ask about internal reviews let's internal checks don't work i worked in the department of justice you don't need to have an explicit order in the bureaucracy to know which way to come out and we've seen that in some respects i think between the lines if you read john hughes an classified document relating to what was torture and what was not whether the president had supreme commander in chief at the ready to flout any law this body enacted in the name of national security and that's what the founding fathers understood if men were angels we would need separation of powers but they relied upon checks and balances as president reagan put it trust but verify and i think that's the spirit of congressman adler's and i highly supported and commended thank you but i thank the i was as chief of national security law on the f b i prior to the patriot act and shortly thereafter supervising the lawyers who at that time prepared national security letters i've calculated roughly that seventy five to eighty percent of them were prepared within ten or fifteen feet of my office so i'm happy to give the committee the benefit of that experience i was also part of the discussion and part of the the process at least in the f b i of making proposals of the time patriot act and so i can explain  if the committee is interested in the background in changing legal standards but i'm also fascinated from an academic perspective since with the idea of transactional information we all generate enormous amounts of it  technology and the changes in our society are increasing the amount of that information and although it doesn't contain the content of private communications it is revealing sadly more detailed picture of what we do every day that information unlike our our content unlike things that we have a more direct privacy interest in resides in the hands of third parties in quantities for maps and conditions of which most of us remain unaware the constant expansion in the capacity of storage systems and in the power of search engine technology makes this transactional information more permanent and more easily accessible than ever before so the question is under what circumstances do we want the government in it intelligence gathering function to have access to that information how should they use it how should they store it how can their use of it be challenge how can their acquisition of it be challenged and i'm hoping that i can contribute something  to the committee's discussion about today it's an enormous challenge on the one hand the explosion of transactional information is opened a new front in the fight against terrorists and for intelligence services our very sophisticated adversaries  long since learned to conceal their direct communications from us but now may be detected in their digital footprints after nine eleven transactional information was key to reconstructing the terrorists operation and it is probably one of our best hopes  one of our most effective means of detecting another imminent attack yet this information as i say is revealing more than just the transaction just the outside nature its quantity and quality are  raising the amount of it tells us about its subjects and so i believe that the tool that the f b i has to acquire that information though it must be flexible and it must be efficient and it must as it does now allow the acquisition of information relevant to an investigation it needs to be controlled it needs to have effective minimisation rules effective retention rules and and beyond the sort of legal effect of mr legal elegance of them they have to be rules that inspire confidence in the american public confidence that this is already is under control confidence that's being used correctly and that is my my hope is to contribute that discussion today with the committee and i am very happy to answer any adler and ranking member frank members of the subcommittee thank you for inviting me to testify today i support new legislation in this area and i believe that h r thirty one eighty nine is an excellent vehicle for furthe discussion leading to reform and i've submitted a few comments on the bill to your staff but i must say that i would go further and i believe congress should enact a single statute providing for national security subpoenas to replace all of the current in a cell provision and the principal reason for this recommendation is that it would streamline and simplify current law which is both intricate and idiosyncratic  to the detriment of both our liberty and our security a single statute would also allow a well considered and global resolution of the difficult policy questions that necessarily attend the enac of any national security subpoena or related power now i believe any new statute should satisfy ten essential elements that are discussed in my written submission but let me just outline three of the most important many of which are in h r thirty one eighty nine in one form or another first i think national security subpoenas like grand jury subpoenas should be issued by d o j lawyers second the subpoenas should be limited to acquiring certain specified types of foreign intelligence or other protective information and third and finally and this is critically important my view use of the subpoenas should be governed by rigorous minimisation procedures concerning acquisition retention and dissemination of information in the absence of such procedures in current law i think is a very notable omission h r thirty one eighty nine i would deal with this problem as well and i think it's vitally important so again i appreciate the invitation to testify and i look forward to answering any questions thank you thank you very much will  maybe mr wood says that by that fact mr fein why is it safe to do that well first of all it doesn't cut off the investigation the outset you can have a grand jury which has a broader immediate danger to safety required something less than probable cause and there has been no showing that the stop and frisk standard the reasonable in particular i suspicion standard and that context has proved insufficient to protect the national security and there's no reason to think that the same standard applied when you're trying to gather information that's important to the safety of the american people that it should be any less effective now it certainly beach itself evident that the if you have no restraints on gathering information then you can gather more information and less like the anything will slip cracks but we don't need a broad fishing expedition thank you mr woods with the comment that yes i think the  example of the stop and frisk is a illustrates the difference stop and frisk is a physical environment i see someone walking down the street i'm a police officer and i decide to stop that person i have a target it's  known individual in the in the case of national security letters particularly in the intelligence gathering case that is not the dominant situation dominant situation is we have unknown subjects we have generalized threat information that we need to pin down and when this standard was selected our national security letters it very much reflected the sort of traditional spy catching counterintelligence that was going on at the time and i think my own experience that well i guess two things first the grand jury standard which has been referred to by analogy here is actually quite broad and the grand jury is entitled to investigate on something far less than reasonable suspicion or specific and articulable facts that can investigate on any kind of suspicion that the laws being broken or even just to assure itself that the law is not being broken second my own view is  somewhere in between these two positions i don't necessarily support reversion to the pre patriot act standard but i think it would be useful to focus the information sought by th subpoena on the definition of foreign intelligence information in five which essentially is information that is either relevant or necessary to the ability of the united states to protect against these various specified foreign threat is that so general that you couldn't apply to a specific case where you just said no i think you could i mean you could apply that standard to a specific case but the value of it i think is that it would keep the agents focused on the ultimate goal which is to keep us safe unmediate ok of more nebulous contours of their investigation with me expand in one direction or another thank you mr fine courts have ruled that the fourth amendment does not protect records held by third parties do you agree with this and what is the interest in protecting these records of the fourth amendment doesn't that mean the war for the fourth amendment x reasonable expectations of privacy and whether you agree with the smith case and some of the others that suggest people don't have any expectation of privacy in phone numbers they dialed in bank records can disagree but that's the standard they've used they can reverse themselves based upon the fact that this kind of information more and more is able to be utilized to develop a footprint if you will the signature of someone that wasn't  years ago before you had the interview so when you say in the other words that with with this mr woods put it more and more transactional information being made available simply by the way we live our lives these days that in fact people without thinking about do expect privacy where they were yes and it was also quite clear mr chairman that the congress is not prohibited by the constitution from providing greater privacy and soon after some of the decisions on bank records congress didn't act the right to financial privacy act that went beyond the particular fourth amendment and i think that's the spirit of the united states constitution chairman right on the left alone is the rule the government has to make a strong showing for any thank you without objection with us one more question to mr  allow the government to get in the solar city without any court review when it's a matter of national security well a couple things i'll let me speak to it from my own experience representing entities or individuals who are served with national security matters in some cases the entities that are service national security letters have information about government s they would like to disclose that information to the public they would like to disclose it to congress we represent one client that wanted to disclose information to congress during the patriot act reauthorization debate and wasn't permitted to do that so the gag orders have a very serious effect not just on the first amendment rights of n f l recipients but on the public access to information about the government's use of the surveillance authorit so just as a matter of protecting against abuse it's very important that there be this kind of public oversight and if i could just underscore a distinction that was made by one of the other panelist between the grand jury subpoena contest and the national security letter context grand jury is the recipients of grand jury subpoenas are ordinarily not for close from disclosing to other people that they received a subpoena and the fact that they can disclose that information serves as a kind of check against abuse and that check is missing in the national security letter context so it wouldn't make sense just to take the standards that apply in the grand jury context and export them wholesale to the national security letter context the context are quite different because there's no check exactly i could just add a footnote mr chairman you may recall in the pentagon papers case the government unilaterally said you can't think that the courts have to suppress any disclosure of the pentagon papers because there'd be national security danger in the supreme court said no they were the state secrets the state secrets issue we had a witness who testified that in the who is the daughter of the plaintiffs in the supreme court case fifty years ago fifty five years ago this  that the the the accident report which the courts upheld as as is a state secret because they reveal state secrets she found on the internet a couple years ago and the classified and there were no state secrets and in fact it was just self serving on the part of the administration fifty five years ago to use that excuse oh we know that that happens thank you very much are now recognize the gentleman from arizona who are very flexible well thank you mr chairman mr chairman mr in his testimony that the clear goal of counterintelligence is to identify spies in international terrorists if an investigator has specific and articulable facts that a target is an intel international terrorist then essentially they've already achieved that goal and i think that was extremely insightful one of the things we have to separate here in my judgment is you know one must find casey has pointed out some things and i respect very deeply that we need to leave our citizens alone and i believe that we also have responsibility leave them alive and we want to make sure that we separate those things that are are directly having to do with their privacy and these things that are just kind of that are not fourth amendment protected things are information that give us the ability to identify whether someone is a potential terrorist that we can take to the court in the first place we without some of this information we wouldn't be able to go to a judge  because we we don't have enough information even to suggest that there's any issue the police officer can't go to the judge before he takes a blindfold off to to to look at the neighborhood we have to kind of try to get a little bit common sense and reasonable here in my opinion mr woods in your written testimony you criticize the idea of returning to the pre nine one one standard of specific and articulable facts you write that the f of transactional information remains as vital now as it was at the time of the patriot act and can you elaborate on that little bit and you very particular talk to us about that the the reasoning behind reflected in your question which is and i've tried to lay out in my testimony and i've laid out in in truly mind numbing fully annotated detail in my law review article attached to it how these authorities developed and they  article fact standard as i said worked very well in the traditional counterintelligence environment when we often work from known individuals intelligence officers that we had under surveillance that we were sort of moving outwards from it however began to run into difficulty in the counterterrorism environment when you're working in sort of the other direction from in kohut threat information from from threats that point you toward perhaps a large number of people that you need to sort through and focus very quickly on on the people who are going to be relevant to the investigation and the problem is when you address that sort of situation under specific and articulable facts you did not have specific and articulable facts with reference to all of the people in that group the information was relevant but you were short of that standard just as you would be short of the probable cause standard and so because this is the reason why the f b i came to congress asking for the standard to be made relevant in my view the principal reason the second reason was simply be as as a point on other parts of the testimony to make this these authorities roughly equivalent to the criminal court he's recognizing that we have to do something i agree with with everyone that has been testifying we have to do something about the secrecy provisions we have to do something about retention and dissemination but the general intent was make these authorities roughly equivalent to criminals already and make them appropriate to the threat and i don't think that rolling back to the old standard addresses neither does address the problems that were that were brought up in the i g report nor does it leave us well positioned to to address the threat in the environment that we're encountering mr chairman i will try to squeeze one more quick question here mr was in your written testimony you also expressed deep concerns with the provision that nature thirty one eighty nine that would prevent the use of national security letter information for intelligence purposes he wrote that the sections of the bill that address the dissemination of an s l enforcement to law enforcement information to law enforcement would be a thoroughly unwarranted revival of the wall separating intelligence and law enforcement that operated to such a crippling effect prior to nine one one and this is not justified by the specific interests at stake here and i think that's obviously again an articulate point of view and i wonder if you could elaborate on that and then i'll try to do so briefly the wall situation was a very complicated one mr kris and i and others could talk about it for hours but the the difficulty i have with that pr ovision of thirty one eighty nine i think it it mirrors provisions in the pfizer statute which are there for a little bit different reasons but it's when we did have that requirement when we had to track pfizer derived information that might get into law enforcement channels very quickly got ourselves into very complex situation that had very negative effects on counterterrorism operations prior to nine eleven this is all documented in the  eleven commission report i think proposing to take the same approach now in national security letters which are ten times twenty times the number of is essentially asking for trouble and we're going down a road that was very proven to have difficulty and is inconsistent with our our counterterrorism strategy at the moment i mean if we obtain useful information through a national security letter we should be sharing it with law enforcement homeland security the idea that we would hold back intelligence reports trying to figure out if there was a national security letter information in it that we would we would slow down the sharing of information among homeland security and other protective services and local law enforcement is not going to help us and so i think that provision needs to be looked at and in fact i would i would advocate taking it out and having defaulting to the dissemination guidelines in michigan thank you it i think the part of it that i don't support may well be very significant to the legislation's author so perhaps i'm a little bit more in the i'm over complimentary this afternoon  standard my experience with the specific and articulable facts standard showed that to me to be a very frustrating clumsy standard which is what outmoded by the time i encountered it in the one nine hundred ninety s by principle objection is the standard and as i said i think the sharing with law enforcement and homeland security needs to be fixed as well but certainly what is there are many other provisions of the legislation are quite good and quite in the direction we need to go and i'm not trying to do you know i'm certainly not here to defend the f b i over the last three years or what you saw the reports i think what's in the legislation addresses we fix this thing well i think what's needed to try to test whether or not mr wood's anxieties are justified is maybe an executive session you need people to say we couldn't have gotten this s l if there was a specific and articulable facts standard and show whether that is more a theoretical or a practical problem is because remember this element there's a backup here if you want to go just to the relevant standard which was the situation before have a grand jury doing grand juries can investigate as mr chris pointed out on virtually anything but you have to check one it's more in the sunshine and second it's an independent branch of government that does that and this is the reason why you would want to keep this specific and articulable standards in it because you then you create an incentive to use more of the checks and balances approach than the unilateral approach that's why the supreme court is explain the rule is a warrant rather than any exception because you want to have an incentive to the police to use the checks and balances where it's all feasible that's what i would suggest but could i add something to the chorus i think that the reasonable and articulable grounds standard is actually it's a very low standard and it just asked the f b i to provide some sort of basis for its demand for the records it just asked the f b i to explain to somebody why it needs the records it's asking for and i think that if the i can't articulate why it needs the records then there's a very good question about why the f b i needs the records or whether it should be collecting the records in the first place how do you feel about the i think that accurate and i think there's a similar situation arose in the u s supreme court the case out of michigan u s versus u s district court case i was there at the department of justice at the time it was the claim made by then attorney general john mitchell that in domestic security situations you didn't need any judicial warrant because it was too complex to explain national security issues to judges and the court unanimously said that's nonsense maybe the reason you can't articulate a national security dimension is not there and the somewhere in the middle here between these various witnesses well that's a good place to start you know just consider me the lukewarm water in which i mean a fire in the i first i agree with mr fein that an executive session might be helpful here because i think these kinds of discussions in the abstract can devolve rapidly into angels on the head of a pin these words in a vacuum are very hard to sort of get a feel for  i based on my now substantially outdated operational experience i have some doubts about the specific and articulable facts relating the records to a foreign power an agent of a foreign power  not sure i would go quite as far in opening it up as mr woods i think here the standard that ought to apply is the same standard essentially that applies under fire the information should be essentially a subset of foreign intelligence information information that's relevant to our ability to protect against these threats i think that's where the agents ought to be focused at all times and so i think that's probably the right way to go but again i would want to have this discussion where you could really get some hard but i guess that's a decision but let me ask you about checks and balances generally you know i always thought checks and balances as i indicated the previous panel checking with another branch of government what's wrong with checking with your subordinates to see if you're doing a good job like putting the fox and charge of the chicken house with a problem is that everyone knows that you're on a team is part of the executive branch i was and you're expected to see it fulfill the mission the team and there are a thousand ways that are undetectible that someone can lose promotions can be otherwise marginalized in their job given the equivalent of a transfer to butte montana if they come up with an opinion that's not like and that's just what human nature is about that's why we don't let people be judges in their own case why do you have the executive branch being the judge in its own case here and we know the problems that can be created you know that because the issues concerning advice to the legality of waterboarding now the department takes the business we told the cia interrogators this was legal then if they follow but we can't get at them because we are the final say on this and it's a very incestuous what i call intellectually in dogma situation and that's not the way you get reliable judgments no one's infallible and the situation with regard to a judge x party deciding on warrants it's true you'd only hears one side but he doesn't have a benefit like someone in law enforcement that he gets promoted if there's a you know underestimate or not that's why even though it's not a perfect system it's appeared to the unilateral action and was the necessity for an outside check and balance  investigation which is rather broad you know would cover some stuff that needs to be covered to where the limitation i mean you could almost investigate anything using that standard it seems to me is there any limitation that terrorists what is relevant whose records well i think you're pointing out the elusiveness of a relevant standard with regard to terrorism you can try to connect dots all around the world maybe something out conceivable something that looks innocuous ninety nine thousand out of ninety nine thousand one times maybe turns up something so maybe you're looking for something that's relevant that's why it's so open ended and that if it's going to be that broad the way in which we traditionally national security letter statutes were intended and make explicit reference to the attorney general guidelines which are now called the guidelines for national security investigations which define in great detail unfortunately classified detail a good answer to the allegation they fired u s attorneys for failing to indict democrats to affect an upcoming election and these are the people writing their little guidelines to get it things they want you getting information on people who are charged with a crime well it isn't in the guidelines are intended to cover the collection of intelligence which often doesn't solve intelligence officers for example working in this country often go out of their way not to commit crimes but yet need need to be surveilled terrorists no doubt if it's relevant to the investigation you're getting information on the secret of people who are not even charged with a crime if you say that information might be relevant to somebody else's criminal activity as you would in a criminal investigation with a warrant with with a national security letter as you would use a grand jury subpoena the grand jury you've got two different branches of government working to that point in theory say this is why we like a little oversight from somebody other than the ones doing the chasing but i'm not disagreeing on the point about oversight i think there does need to be oversight outside the executive branch and we struggled with this congress chairman that's why we have a five court in secret at least looking over the proceedings that's all but at least you've got somebody in another branch of government watching what's none with these vague standards and somebody that has the authority to put an end to it if they're going into areas that are more shenanigans that investigation mr scott could i just add to that i actually think we have directed that we have direct evidence that judicial oversight in this area would be effective in a a that internal executive branch oversight is not and i'm thinking of the two cases that the a c l u brought challenging national security letters one served on a library organization and the other one served john doe organization in both of those cases the f b i served in the n f l and then once we brought the challenge the f b i made the decision rather than defend the n f l before a judge to drop the n f l so the the f b i made a decision and then surely that the information was necessary but when there was a threat of judicial review the f b i back down i think that shows that judicial oversight is effective in a way that executive branch oversight alone is not  also add mr scott that the need for an outside check the national security letters is greater now than it would have been earlier because congress given the status of the claims of executive privilege and state secrets is not and cannot exercise oversight because you repeatedly encounter the claim can show you this executive privilege that's why the fight oversight is a joke and  that this body cannot through the customary hearing process and oversight impose a check after the fact all the more need at the outset to have some other branch here the third branch of government be involved in some way and i want to underscore this is not an effort to handcuff investigations it's saying be muscular but do what checks and balances because abuse is what happens with unilateral unchecked power the gentlemens time is well expired we're going to have a second round of questioning however so be able to come back to the gentleman if he wishes i will now you have myself five minutes for further questioning mr woods i wanted to explore some of the distinctions you were drawing on the one hand you said that the particular was at the  especially talking about a preliminary investigation with this basically nothing there seems to be completely totally open ended could you think of a standard that might meet your practical problems but that would give us some a is quite a reasonable quite a reasonable require what language is that it's what are you citing is the definition of foreign intelligence information drawn from the files a statute and it basically says this is the this is the kind of information that is relevant ok action of the national thank you mr fine you look at that idea i can't sustain that number one if you look at the definition of national security or foreign intelligence information it includes everything under the sun the bank reserves in hong kong you know trade flows and that sort of thing it's very open ended and the second thing that clearly different faces is that under the standard before the protect america act and i guess which has been expired you still need probable cause to believe that your target was a foreign agent or where you don't need a lot on reindeer harris and there isn't any such limitation with regard to the n f l mr jaffer do you think there's any all i think that again that the reasonable article well ground standard is a very low standard it's not a probable cause it just requires an articulation of a reason why the records are necessary and again i think if the f b i can't articulate that it shouldn't be collecting the information very great that the fact that it's it's issuing two hundred thousand n s l s over a four year period shows you how widely that power will be used unless there is a real limit placed on it thank you mr woods i want to explore something else you said you mentioned with respect to a different vision of the bill that that essentially says if i recall correctly that you can't use material information as you say gathered under the foreign intelligence provisions in the prosecution you have separate the law enforcement you said that that was what was done three hundred eleven is a real problem my question is the following the fourth amendment says you can't wiretap or get certain  information without a warrant or probable cause now we come along and say wait a minute forget for the men was the only criminal prosecutions but we now have a problem with foreign spies or with terrorism whatever they want to fight the war against terrorism against soviet spies or whoever will have a lower standard that doesn't meet the fourth amendment but we won't use this for criminal prosecutions only use it to protect ourselves and that's why we have some of the provisions here if you then say but we certainly can't use that information that we gathered by a lower standard than the fourth amendment standard and then the problem was that we can't use that in prosecutions two questions one how does that compromise national security because we can use it national security  investigations and two even if it did compromise our security how could we use it in criminal prosecutions without violating the fourth amendment by definition and your question  don't see how that would they do that here do we have to start with pfizer as you've sort of laid it out and this prohibition of sharing pfizer derived information with freely with criminal prosecutions derives from the fact that the standards are different the standards on pfizer are actually not lower than the criminal standards they're different they comply with the fourth amendment the reasonableness standard of the fourth man that's the whole line of court cases that come from keith and that that  but the it's not probable cause that crime has been committed it's probable cause the person's age of a foreign power and so if you want to construe that as lower it's it is very vital then but that's not sort of that wholesale into the criminal process that's why the not we're talking to seems to me that one of the problems of the discussion is you know the level of protection and the complexity of the protection will vary depending on the the level of intrusion involved in what's being protected now where you have contents you know the government entering your house and searching your papers the government lives transactional is not is as as protect and this is you know if i could cite the whole history of national security le gislation it's kind of the neglected stepchild of pfizer no one paid much attention to it that's why the statutes are trying to remedy that now there are bones and then and so there's a lot of work that needs to be done to this but i don't think we need to build it into a issue can be used for the national security because obviously criminal prosecutions how does that endangered national security well for one thing you need to do something with that information we need to prosecute the terrorists or the spy in some situations so we need to transfer it from the national security environment into the terrorism into the criminal environment there's a prosecution but second if through the use of national security letters develop information about a terrorist threat and i want to disseminate that to the people who are the first responders the state and local law enforcement is that dissemination to law enforcement will it is even though it might not you know could that information find its way into a criminal prosecution that's the issue  president can detain u s citizens as enemy combatants and they never have a trial so the idea that you know you have to have a trial to do something certainly is not the standard that this administration employs and secondly what is it that you can do with that national security information you can work the plot you don't have to have a criminal prosecution it's oftentimes said by this administration especially you don't want law enforcement to be backward looking you want to be forward looking so you're able you c a plot in ways that you're agreeing that if you can use that information to foiled a plot then not giving it to law enforcement for prosecutions is not a problem it's not  doesn't prevent the safety of the americans it comes from preventing the terrorist act now we could call it a problem in the sense that if you want to have an easier way to publicize how well you're doing criminal prosecutions are useful and moreover there may be a difficulty of youth or to plot and you don't have them in prison that they could then return to that particular phrase so i don't want to say there's no difference but certainly the main idea that promoted that you need the intelligence to prevent the crime not prosecuted certainly not thank you very much once again i've gone over my five minutes of the gentleman from arizona is recognized very flexible well thank you mr chairman you're always kind in that regard i wish we could figure out a way to bring that in the philosophical terms here mr chairman i guess first of all you know when we're gathering information that law enforcement you know is just is just information that's out there i think it's very important to make this distinction  right to have privacy about what kind of drugs they buy but if they if they buy four hundred boxes of sudafed that might cause a law enforcement to eyebrow to go up and if we make that  aware that the law enforcement for you can even gather that information even look at it to to be something that would go through the standard process of probable cause i mean we'd never get anything done the policeman would have to go around with their eyes closed and i know we got to be careful how we throw these things around if if we apply constitutional rights to that we fight in the in the say the out lands of afghanistan and we've got to read them their rights before we arrest them that would pretty much do away with any ability for us to fight a war on terror and so we have to be somewhat practical minded here while keeping with the basic foundations of justice with that said you know there was a time when congress was trying to do this in the patriot act and when this patriot act was debated in congress and they changed the standard for an n f l from requiring a government statement of quote specific and articula facts to one of relevance they did so after carefully considering the f b i supplies of examples from actual operations and even senator patrick leahy the democratic chairman of the senate judiciary committee  found that quote this is patrick leahy that quote and he the f b i has made a clear case that a relevant standard is appropriate for counterintelligence and counter to intelligence investigations as well as for criminal investigations that mr leahy is not my mentor so i don't suggest that to you all go out and follow his perspective in every case but it should be something maybe for the democrats on the committee to consider so with that let me ask m r chris if i could h r thirty one eighty nine provides that quote no information acquired by a national security letter shall be disclosed for law enforcement purposes you know less such disclosure is accompanied by a statement that such information or any information derived therefrom may only be used in a criminal proceeding with the advanced authorization of the attorney general do you support that provision and if you don't want to sorry i mean first of all  just say that that is not a prohibition on the use of n f l derived information in a criminal prosecution i sympathize with what i ended than to be the rationale behind that which is the same as the rationale behind the corresponding language in five which is that you don't want accidental disclosure through localized criminal prosecution of information that reveals a national security investigation which has to be kept secret for longer than might otherwise occur and i'm in favor i think with within the context of these by definition national and international investigations of some kind of centralized monitoring because they aren't just local problems the way some street crime for example is having said that given the volume of national security letters some fifty thousand a year it might be a bit steep to ask the attorney general each time to approve the way he does or she does in respect of applications where there are only about two thousand a year so i mean i sympathize with the idea behind it i'm not sure that it would be administered well and it may be better to get at the same issue through minimization procedures which are also part of thirty one eighty nine which i do strongly support  you the the bill would also raise the standard for the government's access to business records in terrorism investigations by requiring that the that the government show quote specific and articulable facts giving reason to believe that the information or records sought information is right and i just want to point out foreign intelligence information has two separate subsections the one that mr fein referred to with respect to hong kong banking information is in a second and different subsection than the one we've been talking about which is i think rather rigorously defined to be information that relates to the ability of the united states to protect against sabotage international terrorism espionage attack and other grave hostile acts carried out by foreign powers or agents of foreign powers this is a standard that that has some meat on the bones and i think it would be a reasonable way to go and it it has the advantage as compared say to the current reference to the a g guidelines which are classified that it refers to statutory language with definitional subsections that are pretty well known and could be discussed and debated publicly at least in the abstract mr chairman i don't know if there's time for m woods to say a word on that is we have to also consider this in the context of our homeland security and counterterrorism strategy if if if if i have information threat information about something to that would occur in new york  city criminal prosecution is not the first thing on my mind the first thing i want to do is tell the n y p d now if i have to worry about you know is this piece of paper or e mail that i'm sending to the n y p d does that contain national security information letter information is so do we need to go to the attorney general first i just say at the basis of practical experience that backs up the system and you get to a situation in which that stuff is not disseminated the way i think all of us would want it to be  and you want to disseminate that information to the n y p d for prevented is that for law enforcement purposes well in one sense it is not and you would you would say well that's not a problem but our experience with  information was if you're disseminating it to a law enforcement organization that is dissemination to law enforcement it is dissemination that once it's in that organization it could come back in the form of could be used in an affidavit somewhere could go into the process of the position always was that before you give it to the law enforcement organization you have to clear it for law enforcement purposes so would you be happier if the provision said essentially the same thing that you can't disclose it to law enforcement purposes except for anti terrorism prevention purposes or something like that you could craft some language to deal with the threat dissemination the dissemination of threat information that would probably solve this problem i think that that would be a very very wise thing to consider thank you back and i thank the gentleman thank you i now recognize the gentleman from virginia thank you i think all of the witnesses have  indicated that the foreign intelligence includes fights against terrorism misfiled as also suggested it includes a lot more than that let me just ask on terrorism this chris you indicated that terrorism doesn't have to be related to a state supported terrorists or can you have a free kind of loosely organized group of terrorists that are not state supported would they be included in all of this yes non state non state supported terrorism would be included you find his legislative history is pretty clear in saying you could have the larry moe and curly terrorist organization i mean three guys who are actually engaged in terrorism would be a terrorist group ok that you indicated two sections where you talk about foreign intelligence for the purpose of national security letters or both sections of know there's several different and it's all statutes and it depends on which statute but most of them are focused on international terrorism most of the broad ones so they wouldn't include the so called affirmative foreign intelligence of the banking sort if you want to the foreign trade stuff  my own view is but then there are some statutes that do refer to the foreign trade as long as it doesn't concern a u s person so that basically what i'm concerned if it's relevant to a foreign intelligence protective information the information you need to fight against terrorism and all these other threats and affirmative foreign intelligence information the sort you want to get when we're spying on them for example trying to get trade related information or what have you and by and large there's a number of different laws so i don't want to make an absolute blanket statement by and large the second category of affirmative foreign intelligence information in this context has to be information that doesn't concern a u s person so it might be using those l i mean it least under the standard that i'm talking about i this should be or is well it's what i proposed yes and it also has a basis in current law but there are several different provisions of current law that have different standards so i want to enter any provision and present a law where you can get information records of an innocent united states citizen pertaining to an investigation trade did i may be misunderstanding mr chris's proposal and if i am i apologize in advance but but if the proposal is simply to replace the current relevant are effectively to replace the current relevance language in the n f l statutes with with the language it's in the foreign intelligence definition which uses the phrase relates to i'm i'm not sure that actually solves any of the problems that at least the a c l u is concerned about it doesn't solve the problem that the f b i can go fishing expeditions and collect information about innocent people many degrees removed from actual suspects and it doesn't in itself solve well over another another another question is there any difference of information you can get records relating to for at the moment activity you can get phone calls you get the content of phone calls you get e mails with national security letters you can get a narrower class of information the fact that it's a narrower class doesn't mean that it's a non sensitive class or you keep the information do you turn it over to it turns out not to be relevant can you have a collateral criminal i think that the documented of the information at least the practice has been to keep some of that information that's one of the problems that the  hierarchy apply intelligence investigation i would use a national security letter which is not a probable cause instrument to get transactional information i would use to conduct a search warrant for survey intelligence foreign intelligence investigation and back door because you don't have the probable cause problems subpoenas and warrants to start searching somebody's house but i can't i can't under five i have to convince a judge to get a warrant under that i am that this person is an agent of a foreign power not the question is can i use the n f l because that doesn't require a judge you know the restraint there and this is something we've all read the time of the gentleman has probably as you can to be made part of the record without objection the record will remain open for five legislative days for the submission of any other additional materials and again witnesses the hearing is a