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PERMANENT PROVISIONS OF THE PATRIOT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MARCH 30, 2011 

Serial No. 112–15 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

DEBBIE WASSERMAN SCHULTZ, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 30, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

WITNESSES 

Todd M. Hinnen, Acting Assistant Attorney General for National Security, 

Department of Justice 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Kenneth L. Wainstein, Partner, O’Melveny & Myers LLP 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 25 

Michael German, Senior Policy Counsel, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

(1) 

PERMANENT PROVISIONS OF 

THE PATRIOT ACT 

WEDNESDAY, MARCH 30, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:01 a.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 

Lungren, Poe, Griffin, Gowdy, Quayle, Scott, Conyers, Johnson, 

Deutch, Jackson Lee, and Quigley. 

Staff present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Saran Allen, Counsel; Arthur 

Radford Baker, Counsel; Anthony Angeli, Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, Subcommittee Chief Counsel; 

Joe Graupensberger, Counsel; Ron LeGrand, Counsel; Liliana 

Coranado, Counsel; Sam Sokol, Counsel; and Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee on Crime will be in 

order. 

Today’s hearing is on the permanent provisions of the PATRIOT 

Act which are the 14 provisions that were made permanent in the 

2006 authorization. 

And I would like to especially thank our witness for coming and 

thank you for joining us today. 

I am joined today by my colleague from Virginia, the Ranking 

Member of the Subcommittee, Bobby Scott, and the junior Chairman emeritus, John Conyers of Michigan. 

I recognize myself for 5 minutes. 

Today’s hearing will examine the permanent provisions of the 

PATRIOT Act. As Chairman of the Judiciary Committee in 2005, 

I spearheaded the reauthorization of the Act which made permanent 14 of the 16 temporary provisions. These 14 provisions provide a variety of law enforcement and intelligence gathering tools 

to identify and prevent terrorist threats of the 21st century. 

Perhaps the most significant of those provisions is designed to remove the information sharing wall that existed prior to the 9/11 

terrorist attacks. The 9/11 Commission report provided a detailed 

description of the evolution of the wall which prevented information sharing between law enforcement and intelligence agencies. As 

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the report notes, the wall was not erected by a single act of Congress, court ruling, or administrative order. Rather, it was built 

slowly over time based upon the interpretation and often misinterpretation of Federal law and Justice Department procedural 

memos. 

Sections 203 and 208 of the Act helped tear down the wall by implementing important changes to FISA and the Federal Criminal 

Procedures. As the Department noted in 2005, the new ability to 

share critical information has significantly altered the entire manner in which terrorism investigations are conducted, allowing for a 

much more coordinated and effective approach than was possible 

prior to the passage of the USA PATRIOT Act. 

The need for information sharing is perhaps even more critical 

today as America continues to encounter isolated plots carried out 

by individual terrorists. The preemption of these plots is often dependent upon the timely ability of our intelligence and law enforcement agencies to work together to connect those dots. 

The 2005 reauthorization also made permanent laws that designate terrorism-related offenses wiretap predicates, authorize 

emergency disclosure of electronic surveillance, modernize search 

warrant authorities, and authorize law enforcement assistance to 

victims of cyber attacks. 

Many will agree that these provisions are common sense and 

largely noncontroversial, including civil liberties organizations such 

as the Center for Democracy and Technology. Their permanence 

has neither diminished Congress’ ability to oversee their use nor 

increased the potential for misuse by the Government. 

The other investigative tools, including National Security Letters 

and delayed notice search warrants, are often thought to be products of the 2001 PATRIOT Act. That is not true. National security 

letters were first authorized by Congress 15 years before the PATRIOT Act in legislation sponsored by Senator Leahy and former 

Wisconsin Congressman Robert Kastenmeier. NSL’s are similar to 

administrative or grand jury subpoenas but can only be used to acquire specific categories of third party records such as telephone 

toll records, credit reports, and bank records. The 2001 PATRIOT 

Act confirmed the NSL standard to bring it in line with the over 

300 other Federal administrative subpoena authorities. The 2005 

reauthorization added several additional NSL procedures, including 

the express authorization for NSL recipients to consult their attorneys and judicial review of NSL’s and nondisclosure orders. 

Current legislation in the Senate would revert the NSL’s back to 

the original Leahy-Kastenmeier pre-9/11 standard. 2 weeks ago, 

the FBI Director Mueller testified before the Committee that he opposes this change, explaining that National Security Letters are 

the building blocks which enable the FBI to collect information. 

Changing the standard or sunsetting NSL’s would undercut the 

FBI’s authority to undertake the kinds of investigations that led to 

the disruptions in the last 9 years. 

Delayed notice search authority also predates the PATRIOT Act. 

In 1979, the Supreme Court found that the Fourth Amendment 

does not require law enforcement to give immediate notice of the 

execution of a search warrant. Three Federal courts of appeals 

have considered and upheld the constitutionality of delayed notice 

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search warrants since 1979. Section 213 of the PATRIOT Act codified the courts’ ability to delay notice to a target of a search under 

a certain set of circumstances. The notice may not be delayed indefinitely. Initial delay may extend for up to 30 days and the delay 

may only be extended by the court for an additional 90 days based 

upon a showing of good cause. 

The Senate proposal would reduce the 30-day time frame to 7 

days and Director Mueller testified against this change, notifying 

that the 30-day time frame works well and he sees no advantage 

to drawing it back to 7 days. 

Congress must be careful not to undermine the tools we have in 

place that have helped the FBI and other agencies prevent another 

9/11 attack and preempt the increasing number of smaller individualized terrorist plots. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of the Subcommittee, the gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman, and thank you for holding 

this hearing following on the Subcommittee’s recent hearing about 

the three expiring provisions of the U.S. PATRIOT Act. So I am 

glad that now we are examining the rest of the law and we will 

have additional hearings. 

In the wake of the attacks on September 11th, we rushed to enlarge the power of Government with respect to privacy and other 

fundamental rights. Whatever we say about the PATRIOT Act, I do 

not think that we are any more free today because of it. In my 

mind a major cause of concern is that these extensions of Government powers created greater incentives for Government to use 

them even in contexts most of us would agree were not appropriate. 

A good example of this is the documented abuse of the National 

Security Letters. The PATRIOT Act significantly loosened the 

standards for the FBI to issue those demands for certain types of 

personal information, and two Inspector General reports found significant abuses of NSL’s. While the Justice Department and FBI 

have taken steps to address the abuses, the abuses themselves underscore the danger in hastily expanding such powers that do not 

involve oversight by an individual magistrate or judge. 

Also, the PATRIOT Act allows greater use in criminal cases of 

information gathered in intelligence investigations. We generally 

allow intelligence information to be obtained under different rules 

and standards than those applied to criminal law. Once again, we 

need to be concerned about the incentives we give to Government 

when we loosen these restrictions. The use of intelligence gathering 

tools to avoid otherwise applicable constitutional constraints on law 

enforcement poses a grave threat to the fundamental protections 

our Founders established. We saw this from the abuses in 

COINTELPRO and other abuses exposed by the Church Commission hearings led by then Senator Frank Church. While we should 

provide for appropriate sharing of information between the CIA 

and the FBI in instances such as preventing terrorism, I believe 

that the PATRIOT Act went too far in authorizing information 

gathering and sharing of intelligence by law enforcement. 

4 

Finally, I mentioned the PATRIOT Act’s relaxation of standards 

by which FISA orders may be obtained. Previously the requirement 

was that the primary purpose of such order was to gather foreign 

intelligence. That was exchanged to now the Government must 

only show a significant purpose, not the primary purpose of the 

order is to gain intelligence information. This, of course, gives law 

enforcement not only the authority but incentive to seek FISA orders in what are largely criminal investigations rather than having 

to meet the higher standards required for criminal warrants. 

To make matters worse, targets of an inappropriate FISA order 

may never find out that their privacy was breached and may never 

have an opportunity to challenge it. It is difficult to uncover abuses 

in such cases, and it makes it hard for us to conduct appropriate 

oversight. 

Ultimately I don’t believe we need to choose between being safe 

and being free. We can reasonably achieve both and we should constantly strive to assure both. But there is good reason to provide 

the probable cause and other things for criminal warrants. They 

may not be appropriate for intel, but the information sharing gives 

the incentive to get the warrants through the intelligence approach 

with the lesser standard. 

Ben Franklin famously said to those who would give up essential 

liberty to purchase a little temporary safety, deserve neither liberty 

nor safety. And that is why I am pleased that we are having this 

hearing today to further examine the USA PATRIOT Act and look 

forward to the testimony of our witnesses. 

And I yield back. 

Mr. SENSENBRENNER. I thank the gentleman from Virginia. 

Now, would the junior Chairman emeritus want an opening 

statement? 

Mr. CONYERS. Well, after considerable deliberation, my answer is 

yes, Mr. Senior Chairman Emeritus. 

Mr. SENSENBRENNER. This is just like the Senate with senior and 

junior Senators. The gentleman is recognized for 5 minutes. 

Mr. CONYERS. I want to begin by commending you, Chairman 

Sensenbrenner, in terms of the work that you have done on this 

Committee that starts with the Voting Rights Act of 1981, the 

amendments of 2006, the Americans with Disabilities legislation 

that you have championed throughout your career, and the original 

PATRIOT Act that came out of this Committee unanimously in 

2001. 

Because of that, we come here today to request of you that we 

have another meeting on this subject without the distinguished 

witnesses that are here where we can discuss some of the unclassified and classified materials that would be the subject of such a 

meeting. I am fully aware that the month after next we are going 

to have to dispose of this matter, and I think that this would be 

a very important meeting in terms of reaching some kind of consensus about where we are. 

Now, I guess the problem that bothers me most is the fact that 

we have now allowed the Government to legally secretly enter anybody’s home in the United States to search and to keep secret that 

they broke into someone’s home for the purposes of any criminal 

investigation. And it can be kept secret for longer than 90 days by 

5 

merely getting an extension. I would like this discussed here today, 

of course, but I would like us to meet with the Committee in a nonpublic hearing on that issue. 

In addition, we have National Security Letters which first started off outside of the PATRIOT Act and now have been included and 

extended inside of the PATRIOT Act. The FBI issues tens of thousands of such letters every year. It has been determined by the Inspector General that there is widespread abuse of this power, and 

to me this is not acceptable. We need to decide what we are going 

to do on this or this whole bill is going to be, I can predict, in some 

serious difficulty. 

Frequently national security powers are brought to ordinary 

cases. Section 218 of this act allows the executive to use full national security powers in ordinary criminal investigations so long 

as it claims a significant purpose of gathering foreign intelligence. 

And so I look forward to our discussion this morning. I thank you 

for the extension of time. 

Mr. SENSENBRENNER. I thank the gentleman from Michigan. 

It is now my pleasure to introduce today’s witnesses. 

Todd Hinnen is the Acting Assistant Attorney General for National Security at the Department of Justice. Prior to assuming this 

position, Mr. Hinnen was the Deputy Assistant Attorney General 

for Law and Policy at the National Security Division of DOJ. He 

also previously served as chief counsel to then Senator Joseph R. 

Biden, Jr., as a director in the National Security Council’s Combating Terrorism Directorate and as a trial attorney in the Department of Justice’s Computer Crime and Intellectual Property Section. He clerked for Judge Richard Tallman of the Ninth Circuit 

Court of Appeals and is a graduate of Amherst College and Harvard Law School. 

Ken Wainstein is a partner at O’Melveny & Myers in Washington, D.C. and a member of the white collar defense and corporate investigations practice. Prior to his work at O’Melveny, Mr. 

Wainstein spent 19 years with the Department of Justice. From 

1989 to 2001, he served as an assistant U.S. Attorney both in New 

York and Washington. In 2001, he was appointed Director of the 

Executive Office of U.S. Attorneys where he provided oversight and 

support to the 94 U.S. attorneys offices. The next year he joined 

the FBI to serve first as general counsel and then as chief of staff 

to Director Robert S. Mueller. In 2004, Mr. Wainstein was appointed and later confirmed as the U.S. Attorney for Washington, 

D.C. He was confirmed again by the Senate in 2006 after being 

nominated as the first Assistant Attorney General for National Security in the Justice Department. He established and led the new 

division which consolidated DOJ’s law enforcement and intelligence 

activities on counterterrorism and counterintelligence matters. In 

2008, he was named Homeland Security Advisor to then President 

Bush. In that position he advised the President and oversaw the 

interagency coordination process for our homeland security and 

counterterrorism programs. He received his bachelor of arts in government and international relations from the University of Virginia 

and his juris doctor from the University of California-Berkeley in 

1988. 

6 

Mike German is the Policy Counsel for National Security and 

Privacy for the American Civil Liberties Union, Washington Legislative Office. Prior to his work at the ACLU, he served as a special 

agent for the FBI for 16 years. Mr. German’s final assignment with 

the FBI was as a counterterrorism instructor at the FBI National 

Academy. There he taught courses on extremism in democratic societies and developed a graduate level training program for State, 

local, and international law enforcement officers. He left the FBI 

in 2004 and joined the ACLU in 2006. He received his bachelor of 

arts in philosophy from Wake Forest University and his juris doctor from Northwestern University Law School. 

Without objection, all Members’ opening statements will appear 

in the record in their entirety. 

Without objection, the witnesses’ statements will appear in the 

record in their entirety. 

Each witness will be recognized for 5 minutes to summarize their 

written statement. 

And without objection, the Chair will be authorized to declare recesses during roll call votes in the House if they happen. 

The Chair now recognizes Mr. Hinnen for 5 minutes. 

TESTIMONY OF TODD M. HINNEN, ACTING ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY, DEPARTMENT OF 

JUSTICE 

Mr. HINNEN. Mr. Chairman, Ranking Member Scott, Ranking 

Member Conyers, and Members of the Subcommittee, thank you for 

inviting me to testify again on behalf of the Department of Justice 

as you consider reauthorization of the USA PATRIOT Act. 3 weeks 

ago, I addressed the three FISA provisions that are due to expire 

in May. Today you have asked me to discuss other PATRIOT Act 

provisions. 

As you know, the PATRIOT Act contained provisions amending 

a wide variety of laws, including those affecting immigration, border protection, victim’s rights, criminal investigations and prosecutions, and foreign intelligence. I understand that the Subcommittee 

would like us to focus today on the criminal and intelligence investigative authorities affected by the PATRIOT Act. 

The PATRIOT Act amendments to these authorities achieved 

several objectives. First, the Act provided national security officers 

with tools similar to those commonly used in routine criminal investigations. It permitted the Government to apply for roving FISA 

surveillance orders and business records orders, each of which has 

a well established criminal analog as we discussed 3 weeks ago. 

It also amended existing National Security Letter authorities so 

that they operated more like grand jury subpoenas. In particular, 

it allowed NSL’s to be issued out of field offices, not just FBI headquarters, and it permitted the FBI to issue an NSL if the records 

sought were relevant to an authorized national security investigation, a standard similar to but still more demanding than that for 

grand jury subpoenas. 

Second, the Act modernized a number of criminal investigative 

authorities. For instance, it permitted the Government to use the 

criminal pen trap statute to intercept email data in addition to 

phone numbers. 

7 

Third, the Act streamlined the use of investigative authorities, 

reducing administrative burdens so that the Government could 

focus its finite resources on identifying and disrupting terrorist 

plots and bringing the perpetrators to justice. For instance, it extended the duration of FISA surveillance orders against non-Americans so that agents, attorneys, and judges do not have to undertake 

the labor-intensive process of renewing them as often. It also allowed the Government in criminal investigations to obtain pen register and stored communications orders from any court that had jurisdiction over the crime rather than forcing investigators in one 

State to go before a court in another State just because that is 

where the Internet service provider happened to be. 

Fourth, the Act permitted intelligence and law enforcement officers to share information and work together to protect Americans 

from national security threats. It removed the so-called ‘‘FISA 

wall,’’ clarifying that intelligence collected through FISA surveillance could be shared with criminal investigators and support 

criminal prosecutions. It also permitted information obtained 

through criminal wiretaps and grand jury investigations to be 

shared with intelligence officials. 

Many of these changes proved uncontroversial. Those that were 

set to expire were renewed, some with amendments. They are now 

a permanent part of the authorities we use to protect the country 

against terrorism and other national security threats. 

I understand that the Subcommittee would also like me to address the authorities governing National Security Letters. Like 

grand jury subpoenas in routine criminal investigations, NSL’s 

allow the FBI during predicated national security investigations to 

obtain certain basic information that forms the building blocks of 

most investigations. For example, NSL’s are used to obtain telephone calling records and email transaction records. These records 

can help the FBI identify co-conspirators. NSL’s can also be used 

to obtain information regarding bank accounts being used to fund 

terrorist activities. NSL’s were used to obtain substantial information regarding the 11 Russian deep-cover spies caught last year, including information about payments they received in financial accounts. In short, NSL’s are a critical tool in the national security 

toolbox and their absence would significantly hamstring the FBI in 

its ability to protect the country. 

Although NSL’s are used in much the same way as grand jury 

subpoenas, they are subject to far greater statutory constraints and 

much more rigorous oversight. Additionally, NSL’s are subject to 

congressional reporting requirements. 

As the Subcommittee is no doubt aware, in 2007 DOJ’s Inspector 

General issued a report that was critical of how the FBI had used 

NSL’s from 2003 to 2005. As he testified before the House Judiciary Committee, the IG did not—and I quote—‘‘find evidence of deliberate or intentional violations of the NSL statutes, Attorney 

General guidelines, or FBI policy.’’ The Department and the FBI 

worked hard to address the issues raised in the 2007 IG report, 

and in 2008, the IG issued a follow-on report praising the substantial progress the FBI had made in tightening the internal controls 

and processes involved in the issuance of NSL’s. That progress has 

continued. 

8 

As many of your staffers have seen, the FBI now issues NSL’s 

using a centralized computer system that minimizes errors. The 

system ensures that before an NSL can be issued, the agent must 

articulate how the information sought is relevant to an authorized 

national security investigation, an FBI attorney must review the 

request, and a high level signatory must approve it. 

Mr. Chairman, I see I am out of time. I can address some additional safeguards during the question and answer period. Thank 

you. I look forward to your questions. 

[The prepared statement of Mr. Hinnen follows:] 

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Mr. SENSENBRENNER. Thank you, Mr. Hinnen. 

Mr. Wainstein? 

TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, 

O’MELVENY & MYERS LLP 

Mr. WAINSTEIN. Thank you, Mr. Chairman, Ranking Member 

Scott, Members of the Subcommittee. Thank you for inviting me to 

this important hearing. I am honored to join my two distinguished 


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co-panelists in the continued national dialogue about the PATRIOT 

Act. 

In assessing the PATRIOT Act, it is important that we first recognize the historical context in which it was passed. Before the 

morning of September 11th, 2001, the Nation had not fully awakened to the deadly threat that we faced from international terrorists. That all changed with the attacks of September 11th. Our Nation immediately put itself on a war footing, a war that the Government is vigorously pursuing to this day, and undertook to mobilize the Nation’s resources toward the goal of preventing another 

9/11 attack. 

A crucial part of that mobilization took place up here on Capitol 

Hill when Congress took stock of our national security authorities, 

found them inadequate, and acted quickly passing the original PATRIOT Act on October 25th, 2001. The passage of this legislation 

marked a sea change in our approach to international terrorism in 

a number of ways. 

For one, it gave our national security professionals a number of 

important tools that had long been available to criminal investigators, tools like the roving surveillance authority. 

Second, the PATRIOT Act enhanced the Government’s ability to 

anticipate and prevent terrorism by, for example, reducing the evidentiary threshold for issuance of Section 215 orders and National 

Security Letters for third party records about a person, allowing 

agents to use these tools to investigate leads and connect the dots 

at the first indication that that person might somehow be relevant 

to a national security investigation. 

Third, the PATRIOT Act reduced a number of administrative 

burdens that had previously complicated and slowed the pace of 

our national security investigations. 

And finally and arguably most significantly, the PATRIOT Act 

lowered the perceived wall between our law enforcement and intelligence community personnel—that set of procedures that had 

grown out of the rules of practice in the FISA Court and that prevented our law enforcement officers and our intelligence agents 

from coordinating operations and sharing information about terrorist suspects, thereby bifurcating our counterterrorism operations 

just when we needed them to be fully integrated to meet the growing threat from international terrorism. 

Congress lowered this procedural wall in the PATRIOT Act, and 

with these changes we now have the ability to deploy all of our national counterterrorism personnel and assets in a coordinated, 

worldwide campaign against what the President has aptly described as al Qaeda’s far-reaching network of violence and hatred. 

It is worth noting that all of these significant legislative improvements were drafted, considered, and enacted within a mere 45 days 

of the 9/11 attacks. Congress is to be commended for moving with 

such urgency but also for taking the hurried enactment into account and building into the law the sunset provisions that required 

a future examination of these authorities and their implementation. 

In 2005, Congress went through a lengthy process of carefully 

scrutinizing each and every provision and identifying those where 

additional limitations or oversight could provide valuable protecVerDate Aug 31 2005 10:06 Apr 27, 2011 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\033011\65486.000 HJUD1 PsN: 65486
24 

tion against misuse without reducing their operational effectiveness. This process resulted in the 2006 reauthorization act which 

added significant new safeguards for many of the PATRIOT Act authorities. 

In addition to these new safeguards, the executive branch has 

substantially increased its own internal national security oversight 

in the years since 9/11. That effort can be seen in a number of initiatives that have been pursued by the FBI and the National Security Division at main Justice, especially in the aftermath of the Inspector General’s 2007 report finding serious flaws in the FBI’s use 

of the NSL authority. 

In 2007, the FBI established its Office of Integrity and Compliance which is tasked with establishing and implementing compliance policy throughout the bureau, and that same year, the National Security Division in main Justice established a new section 

devoted to oversight of the FBI’s national security operations. This 

was actually an historic development. While DOJ attorneys had 

previously had a role in conducting oversight into certain areas of 

national security operations, that role was limited. It was only 

upon the stand-up of the Oversight Section that Justice Department attorneys were given the complete mandate to examine all 

aspects of the FBI’s national security program. These two new offices reflect the Justice Department’s commitment to compliance 

and have gone a long way toward institutionalizing and embedding 

effective oversight within the operations of our national security 

program. 

Over this past decade, the executive branch and Congress have 

succeeded in building investigative infrastructure and capabilities 

that are necessary to protect our national security. Thanks to the 

determined efforts of our law enforcement and intelligence leadership and personnel, we now have a formidable counterterrorism 

program that has succeeded in preventing another 9/11 attack and 

keeping al Qaeda off balance. And thanks to Congress’ forceful but 

careful effort to bring our national security authorities into line 

with today’s threat from international terrorism, we now have a 

well balanced legislative framework governing our 

counterterrorism operations. In light of this history, we have every 

reason to approach the 10-year anniversary of the PATRIOT Act 

with confidence that its authorities and safeguards will continue to 

contribute both to the defense of our national security and to the 

protection of our civil liberties. 

Thank you, Mr. Chairman. I would be happy to answer any questions you may have. 

[The prepared statement of Mr. Wainstein follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

The Chair recognizes Mr. German for 5 minutes. 


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TESTIMONY OF MICHAEL GERMAN, SENIOR POLICY COUNSEL, 

AMERICAN CIVIL LIBERTIES UNION 

Mr. GERMAN. Good morning, Chairman Sensenbrenner, Ranking 

Member Scott, and Members of the Subcommittee. 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 Fourth Amendment protections against unreasonable searches and seizures and First Amendment protections of 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 to determine whether these authorities are 

actually making America safer. 

There has not been a full public accounting about how all the 

powerful tools of the PATRIOT Act have been used against Americans. But the little information that has been made public points 

to repeated abuse. 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 the NSL gag orders, certain material support provisions, ideological exclusion provisions, and the 

FISA ‘‘significant purpose’’ standard. 

One of the most abused provisions of the PATRIOT Act is the 

National Security Letter authority. These requests for communication, financial and credit information are issued by the FBI without 

review by a court or Department of Justice attorney. And because 

of the PATRIOT Act provisions to the NSL statutes, they may be 

used to gather records about anyone the FBI deems relevant to an 

investigation, even if they are not suspected of wrongdoing. 

The Department of Justice Inspector General confirmed that the 

FBI issues upwards of 50,000 NSL’s a year, often against people 

two and three times removed from the suspected terrorist or agent 

of foreign power under investigation. The majority of NSL’s are 

used against U.S. persons. The FBI reported that it has addressed 

a number of mismanagement issues identified in the Inspector 

General report, but the NSL’s fundamental flaw, its use to collect 

sensitive information on people who are not suspected of doing anything wrong, and the indefinite retention and use of that information, must be addressed by Congress. 

The ACLU has endorsed a number of proposals to amend the 

NSL statute short of repealing the PATRIOT Act NSL provision, 

including Ranking Member Conyers’ reauthorization bill from last 

year and the Justice Act that was introduced in the House and 

Senate in the 111th Congress. Those bills would limit the use of 

NSL’s to the collection of information that pertains to a foreign 

power, an agent of a foreign power’s activities, or someone in contact with an agent of a foreign power. Requiring such a nexus 

would permit the Government to collect information, pertinent information, while protecting wholly innocent information from being 

caught in a massive Government dragnet. The NSL gag provisions, 

which have been deemed unconstitutional, should also be remedied 

by statute. 

32 

Congress should also amend the material support statute. While 

the statute has been in existence for some time, the PATRIOT Act 

and subsequent reauthorization legislation has expanded and redefined what material support means. We all acknowledge the Government’s legitimate and compelling interest in protecting the Nation from terrorism and in stemming material support that furthers the unlawful violent acts of terrorist groups. But this 

overbroad statute does not make an exception for associational or 

humanitarian activity that does not in fact further an organization’s illegal activities, and it therefore chills charitable efforts that 

the Government should be encouraging. The generosity of the 

American people toward those in need around the world is an asset 

to U.S. counterterrorism efforts, and Congress should remedy this 

unintended chill on legitimate humanitarian efforts by revising the 

statute. 

In addition to these sections, there are other permanent provisions of the PATRIOT Act that violate the Constitution and civil 

liberties and they are addressed in my written testimony. For example, the so-called ‘‘sneak and peek’’ authority, ideological exclusion provisions, and amendments to the Foreign Intelligence Surveillance Act. Surveillance authorities outside the PATRIOT Act 

should be reviewed as well so Congress can get a comprehensive 

picture of how these authorities work together. 

Despite some claims to the contrary, much of the PATRIOT Act 

was not controversial and the provisions that do not infringe on 

privacy need not necessarily be repealed. Overwhelmingly common 

sense amendments can be adopted to protect privacy while permitting the Government to gather information about those it actually 

suspects are probable terrorists or spies. We urge the Committee 

to include such protections in any legislation it reports. 

Thank you very much. 

[The prepared statement of Mr. German follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

We now get to questions. I am going to call on people alternatively by side in the approximate order in which they appeared, 

and the Chair is going to defer his questions until the end. So the 

gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you. 

Mr. Hinnen, you mentioned the importance of National Security 

Letters because of national security. Can they be used for things— 

one of the things that has occurred to me is sometimes we get into 

a discussion where you have a process that works for mass murderers, weapons of mass destruction, and shoplifting. What else can 

you use the National Security Letters for other than national security terrorism-related investigations? 

Mr. HINNEN. Mr. Ranking Member, National Security Letters 

can only be used in a predicated national security investigation, 

and they can only be used to collect information that is relevant 

to an authorized investigation that is investigating international 

terrorism or counterintelligence activities. They could not be used 

for ordinary crimes such as shoplifting. 

Mr. SCOTT. Why are the NSL processes inappropriate for criminal investigations? 

Mr. HINNEN. I think that, as I mentioned in my opening statement, part of what the PATRIOT Act did is bring the NSL requirements closer to criminal investigative statutes, and I think the one 

large remaining difference is the secrecy that NSL’s provide in investigating national security crimes, the kind of secrecy that is necessary when the evidence that the Government relies upon to make 

its showing is classified and where it needs to protect classified 

sources and methods in an ongoing national security investigation. 

So I think it is the extra secrecy that is so uniquely suited to national security investigations. 

Mr. SCOTT. Why is that inappropriate for a criminal investigation? 

Mr. HINNEN. Well, Congressman, I think there are a number of 

statutes that authorize delayed notice in criminal investigations 

where it is deemed appropriate by the court. I think the determination that Congress made is that national security investigations are 

a type of investigation in which that kind of secrecy is almost always authorized. And so it simply switched the default. The Government still has to certify that nondisclosure is important, but the 

default is, in that sense, in favor of nondisclosure. 

Mr. SCOTT. If it is a case where the primary purpose is a criminal investigation but a significant purpose may be national security, you get the more streamlined approach without the protections. Is that right? 

Mr. HINNEN. Well, under FISA and under the change made to 

the FISA standard, the Government now can demonstrate that a 

significant purpose is foreign intelligence collection rather than the 

primary purpose, I think reflecting what the courts had found before the amendment—— 

Mr. SCOTT. If you are using the national security purpose, what 

could be the primary purpose if it is not national security? When 

Attorney General Gonzales was asked that question, he said you 

could be running a criminal investigation. 

65 

Mr. HINNEN. Well, Congressman, I think the courts did recognize 

that there is no mutual exclusivity between collecting foreign intelligence and prosecuting national security crimes. It just stands to 

reason that if one is collecting foreign intelligence on a foreign spy, 

that one may ultimately prosecute him under criminal provisions 

that are intended to outlaw spying. 

Mr. SCOTT. NSL’s have gag orders. How would a target find out 

that he was the subject to an abusive NSL search? 

Mr. HINNEN. The way the mechanism works in NSL’s is the recipient of the NSL, the third party that holds the records, is required to assert any problem that that individual sees with the 

NSL. 

Mr. SCOTT. And why would someone who has no interest in revealing someone’s private information have an incentive to hire 

lawyers to protect somebody else’s rights? 

Mr. HINNEN. Well, I think the recipients often do have an interest in protecting the privacy of their customers or subscribers. For 

instance, telecommunication providers and Internet service provides take the privacy of their customers and subscribers very seriously and I think are often an effective proxy for defending those 

rights. 

Mr. SCOTT. Mr. German, what is wrong with that? 

Mr. GERMAN. Well, the evidence shows that in the case of the exigent letters that the telecommunications companies were not looking out for the privacy of their customers and instead were engaged 

with FBI agents in circumventing the law by allowing information 

about their customers to pass over to the FBI with post-it notes 

and other informal mechanisms. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from South Carolina, Mr. Gowdy, is recognized 

for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. German, I noted in your written testimony there are many 

unfortunate examples that the Government abused these authorities in ways that both violate the rights of innocent people and 

squander precious national security resources. Can you cite me to 

courts of record, courts of appeals preferably, where panels have 

held that agents have intentionally violated constitutional rights? 

Mr. GERMAN. When you say courts of appeals, you know, there 

were a number of cases, including the NSL gag order which was 

found to be unconstitutional. 

Mr. GOWDY. No, no, no. You talked about abuses by bureau 

agents or others. I want to know if there are reported cases by 

courts of appeals where there have been findings by a district court 

judge, upheld by a court of appeals, of intentional abuses by bureau 

agents. 

Mr. GERMAN. There is ample evidence in the record. The Inspector General reports had—— 

Mr. GOWDY. Mr. German, I did not—— 

Mr. GERMAN [continuing]. You are limiting it—— 

Mr. GOWDY [continuing]. I did not ask about Inspector Generals. 

I asked about courts of record, courts of appeals. I will settle for 

district court judges. Can you name me a district court judge that 

has found a bureau agent intentionally abusive? 

66 

Mr. GERMAN. Certainly in the Brandon Mayfield case, there were 

courts that determined that it was unconstitutional the way they 

used FISA’s significant purpose test instead of the criminal Title 

III authority. So, yes, there are cases. 

Mr. GOWDY. Well, you cited one. 

Mr. GERMAN. I can go through. Doe v. Holder is the NSL gag 

order. Library—— 

Mr. GOWDY. Are they in higher percentages than bureau agents 

who are acting outside of PATRIOT Act who are just, in your judgment, violating other constitutional provisions? 

Mr. GERMAN. I don’t know that there has been an examination 

to determine that, and I think that is something important to find 

out whether these authorities are abused more often than other authorities and what would cause that. 

Mr. GOWDY. But so far, there is no evidence to support that. 

Mr. GERMAN. Well, that is part of our concern. Most of these authorities are exercised under such secrecy that it is really very difficult for us to know what is happening, and that is why it takes 

an Inspector General report to reveal these abuses. 

You know, out of well over 200,000 National Security Letters 

that went out from the FBI, there were only a handful of third 

party holders of information that actually challenged—— 

Mr. GOWDY. What can the bureau get from an NSL that an 

AUSA can’t get from the grand jury subpoena? 

Mr. GERMAN. But there are checks with the grand jury—— 

Mr. GOWDY. What? What? I was one. What check was there? 

Mr. GERMAN. Number one, you, the U.S. attorney. 

Mr. GOWDY. So you trust Federal prosecutors more than you do 

bureau agents. 

Mr. GERMAN. Certainly having an independent prosecutor determine whether that request for information was appropriate and the 

grand jury authorizes—— 

Mr. GOWDY. So if an NSL had to go through a Federal prosecutor, you would support it. 

Mr. GERMAN. We support a number of reforms short of—— 

Mr. GOWDY. Would you support the permanency of NSL’s in their 

current form if a Federal prosecutor had to review it before a bureau agent issued the letter? 

Mr. GERMAN. That would certainly be an important reform. I 

haven’t seen that proposal on the table, so we haven’t evaluated 

how that would be. We think narrowing—— 

Mr. GOWDY. You can propose it today. 

Mr. GERMAN. Well, I wish I had that authority at the ACLU. 

Mr. GOWDY. Me too. 

Mr. GERMAN. But we would support narrowing the scope of the 

NSL’s in the way that it has been proposed in the Justice Act and 

in Chairman Conyers’ bill—or I am sorry—Ranking Member Conyers’ bill. 

Mr. GOWDY. All right. You also said 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. 

Mr. GERMAN. Right. 

Mr. GOWDY. I have never seen wrongdoing as the standard by 

which an investigation is started. You have got articulable susVerDate Aug 31 2005 10:06 Apr 27, 2011 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\033011\65486.000 HJUD1 PsN: 65486
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picion. You got probable cause. You got a hunch. What evidentiary 

standard do you think the bureau should have to reach before they 

can start investigating someone when the crime has not been committed yet. 

Mr. GERMAN. I think they need articulable suspicion in the FISA 

context, which most of the PATRIOT Act refers to, that somebody 

is an agent of a foreign power, which was the original NSL authority, in order for them to use this tool. The use of this tool against 

people who are not even suspected—I mean, one of the interesting 

things as a former FBI agent that I found interesting about the IG 

report on NSL’s was that they were being used on people two and 

three times removed from the subject of the investigation and were 

being used—— 

Mr. GOWDY. My time is almost up. I don’t have enough time to 

ask Mr. Hinnen what punishments were meted out for bureau 

agents that intentionally violated bureau guidelines or the law. I 

would be very interested in knowing that. I share your concern for 

that. 

I have run out of time. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers, is recognized for 5 

minutes. 

Mr. CONYERS. Thank you very much. 

Mike German, can you tell us what seems to be in dispute and 

maybe not in agreement with the two other witnesses here on the 

panel with you? In other words, did you hear anything that you 

would like us to know about that we should be checking up on? 

Mr. GERMAN. I think there was the discussion of the finite resources that the Government has and how we want those focused 

on real threats. I think that is an important part of this discussion, 

and that is what some of your review of this should be. If what 

these powers are being used for is to collect information about innocent people that is then retained and clogs these important databases with innocuous or irrelevant information, that is a problem. 

I agree that information sharing is a very important goal, but if the 

information we are sharing is irrelevant or erroneous, that doesn’t 

help national security. 

By protecting the privacy of innocent people, you are actually 

making the Government more effective in focusing on people who 

are real threats to the community, and certainly the excessive secrecy not only harms our ability to protect civil rights but actually 

harms the Government. And we have seen that with Senator 

Lieberman and Collins’ Fort Hood report where there is still the 

problem of excessively classified information that even agents doing 

investigations don’t have access to certain databases. 

Mr. CONYERS. Well, we know about the wars between the agencies in which—well, isn’t that how we got into 9/11? One agency 

was keeping information from another and a third agency was 

keeping information from the other two. 

What else? I mean, can’t we all get along here? I mean, if you 

only had one thing that you are in disagreement with—what else 

did they say that you didn’t agree with, Mr. German? 

Mr. GERMAN. Well, I would disagree that the internal mechanisms that the FBI created and the Department of Justice created 

68 

to address the National Security Letter abuse are sufficient. I think 

those are insufficient. I think the Inspector General’s 2008 report 

indicated there were problems with fulfilling the recommendations 

that he suggested. I think his 2010 report on exigent letters was 

even more troubling where the FBI has created a novel approach 

or legal opinion about what transactional information they can collect from telephone company providers, and that was supported by 

the Department of Justice, and the Inspector General asked Congress to review that. So I think there are outstanding issues about 

those abuses that need to be addressed. 

Mr. CONYERS. I will give you one more observation, if you want 

it. 

Mr. GERMAN. I have highlighted in my oral statement the material support provision. I mean, clearly Congress did not pass the 

material support provision and amend it under the PATRIOT Act 

to impair legitimate humanitarian aid to crisis and conflict areas, 

but that is having that effect and I would hope that the Congress 

would address that and make sure that people providing legitimate 

humanitarian aid aren’t impeded by a possibly overbroad law. 

Mr. CONYERS. All right. Mr. Hinnen, you can stop shaking your 

head now. I will recognize you. 

Mr. HINNEN. Thank you, Mr. Ranking Member. I think there are 

a number of things that we agree upon. Even many of the things 

that Mr. German was asserting that we disagree upon in his response I think we agree upon. 

The Government would wholeheartedly agree that it is not in our 

interest to collect information that is irrelevant to national security. I think the fact that the standard for national security is that 

we demonstrate that it is relevant to national security addresses 

that issue. 

The Government also agrees that excessive secrecy is not necessary, and the showings that the Government is required to make 

in order to keep many of these processes secret are, I think, appropriate to make sure that happens. 

And finally, I would just say that the Government appreciates 

and agrees with the sentiment that it is important to protect privacy and civil liberties and that in doing that, we often make Government more efficient. So I think there is a great deal that we 

agree on. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for 5 

minutes. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate your 

holding this hearing, and I appreciate the participation of all these 

witnesses. 

I would like to direct my first question to Mr. Hinnen, and it is 

a follow-up, sort of, to the discussion we have just had with Mr. 

German about the NSL’s. Can you explain the automated system 

that is used to process NSL’s and does this system increase or decrease the time to process an NSL and does it minimize errors? 

Mr. HINNEN. Yes, Congressman, I can do that. The system that 

was imposed is a centralized computer system that requires agents 

to walk through the NSL process step by step. It populates the document with appropriate legal language. It then requires that the 

69 

document go to an FBI lawyer for legal review before it is then 

passed on to a high-level signatory special agent in charge for approval prior to issuance. 

That process does not significantly increase the time that is required to issue an NSL, and the limited increase in time I think 

is appropriate to ensure that some of the concerns that the IG 

rightly pointed out in his 2007 report are addressed. And it has 

had an effect of limiting and minimizing errors. 

Mr. GOODLATTE. And are there some proposed enhancements to 

the system that would track voluntary disclosures under title 18- 

2702, and does this system assist the FBI with their congressional 

reporting requirements in the law? 

Mr. HINNEN. My understanding is that the FBI is, in fact, developing a similar system that would facilitate the issuance of 2702 

requests, requests for customer and subscriber information, when 

the provider has a good faith belief that there is an emergency involving risk of death or serious bodily injury. Because the subsystem centralizes data with respect to NSL requests, yes, it does 

address many of the issues and facilitate the collecting of information to allow us to meet our congressional reporting requirements. 

Mr. GOODLATTE. Thank you. 

Mr. Wainstein, do you support reducing the time frame for delayed notice from 30 to 7 days, and will this afford any benefit to 

the target of an investigation? 

Mr. WAINSTEIN. I don’t support that, Congressman. I think just 

to step back for a second and look at this in an historical context, 

delayed search warrant notification has been around for a long 

time, as the Chairman mentioned. It was authorized by courts of 

appeals and the Supreme Court. And it has been used in the criminal context for years in drug cases and the like. And it was codified 

in the PATRIOT Act and has been used very effectively in both 

criminal and national security cases. 

Mr. GOODLATTE. So it is not just used in intelligence gathering. 

Mr. WAINSTEIN. No. It actually has been used primarily in criminal cases. It has been tremendously effective, especially in drug 

cases where you know there is a stash of drugs but you want to 

leave it there until you find out who the bad guys are who actually 

you can associate with those drugs. 

Mr. GOODLATTE. Mr. Gowdy challenged Mr. German’s comment 

about the PATRIOT Act vastly and unconstitutionally expanding 

the Government’s authority to pry into people’s private lives with 

little or no evidence of wrongdoing. I am quoting Mr. German 

there. Do you agree with his statement? 

Mr. WAINSTEIN. I would put it a little differently. I would say 

that the PATRIOT Act authorized tools to be used in an earlier 

stage in the investigation such as 215 orders and National Security 

Letters. It allows investigators to find out about individuals before 

they have probable cause or proof beyond a reasonable doubt that 

those individuals are involved in terrorism. The importance of that 

is it is often too late once you get to the point of having probable 

cause or proof beyond a reasonable doubt. You need to find out 

early on if a particular suspect is a bad guy, then find out if that 

person is associated with a plot, unwind the plot and neutralize it. 

70 

Mr. GOODLATTE. I take it from your comment that you don’t believe it was done unconstitutionally. 

Mr. WAINSTEIN. No. I think it was done for the very practical 

reason that we needed to prevent the next 9/11 attack. 

Mr. GOODLATTE. And do you think it was constitutional? 

Mr. WAINSTEIN. Yes. 

Mr. GOODLATTE. And he also claims that those provisions have 

few, if any, built-in protections and little opportunity for Congress 

to review. Do you agree with that? 

Mr. WAINSTEIN. No. I mean, there are a number of protections. 

We have talked about them here today. A number of them were 

added as safeguards in 2005 after Congress did a very careful 

scrub of all the authorities. And as you know, there are very comprehensive reporting requirements to Congress so that Congress 

can exercise as much oversight as it wishes as to the use of NSL’s 

by the FBI. 

Mr. GOODLATTE. Mr. German, National Security Letters are similar to administrative subpoenas which almost universally require 

only a showing of relevance to the particular investigation. There 

are hundreds of instances of administrative subpoenas currently in 

law. For example, the recent health care law authorized administrative subpoenas. 

Do you oppose administrative subpoenas, and if so, why? If not, 

why should the Government be able to investigate health care matters by subpoena but not international terrorists and foreign powers that wish to do us harm? 

Mr. SENSENBRENNER. The gentleman’s time has expired but the 

witness may answer the question. 

Mr. GERMAN. Yes, we oppose the expansion of any administrative 

subpoena authority. The IG report on exigent letters indicated that 

there was—National Security Letters and section 215 authorities. 

It actually pointed out that there was some abuse of administrative 

subpoenas in the audit that he was conducting. So we are concerned about any unchecked use of authority—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentlewoman from Texas, Ms. Jackson 

Lee, is recognized for 5 minutes. 

Ms. JACKSON LEE. I thank the Chairman very much, and I appreciate the comments and associate myself with the comments of 

the Ranking Member of the full Committee, Mr. Conyers, that we 

reflect on 9/11. We know that a large part of our problem was the 

lack of communication, the sort of silo-type security measures that 

were occurring. For that reason, I am glad we have gotten better, 

and I want to thank the Department of Justice and many of our 

security agencies for finding ways of cooperating. I sit on the 

Homeland Security Committee and intelligence gathering is enormously important for the work that we do. 

But let me just cite as an example—lay a premise on something 

that is not related but gets the crux of some of the concerns. The 

IRS is busy and in many instances it gets its hands around individuals who are well intentioned, want to pay their taxes. They wait 

too long and, as you well know, it kicks into the Department of 

Justice. These are Americans who have committed no real crime 

71 

other than they have delayed and thought they had paid or argued 

that they had paid or were trying to pay. But certainly as the Department of Justice gets it, they really want to pay. 

But the interesting thing is that as they want to pay, the harder 

it gets to pay because the Department of Justice will not allow discussion, will not allow, if you will, the release of information, will 

not allow that taxpayer just to write a check. It gets into the claws 

of the system and there is no engagement. There is no constituency 

engagement. It is secret. You are subject to criminal penalties yourself if you were to engage trying to help a taxpayer who wants to 

write a check. 

Sometimes secrecy is, if you will, the undermining of getting 

something done, either saving a Nation or getting tax dollars back 

to the Nation as needed. 

So I ask this question about the national security investigation 

that requires a certain amount of secrecy, Mr. Hinnen, often a very 

significant amount. But I worry that once you start down the path 

of secrecy, it simply becomes a default position and more and more 

information is kept secret that doesn’t really need such tight control. 

What steps have you or other leaders at the DOJ taken to ensure 

that information is not overclassified and that information that can 

safely be made public is released, somewhat similar to why can’t 

people settle their IRS once it gets to the DOJ? Do you think there 

is more that could be done? And what is the purpose of the FBI’s 

NSL subsystem? 

Mr. HINNEN. Thank you, Congresswoman. I will try and address 

those questions in order. 

I would also note that my mind turns naturally to the IRS this 

time of year too, and I will communicate your concerns back to my 

colleagues in the Tax Division. 

Ms. JACKSON LEE. I appreciate it very much. 

Mr. HINNEN. With respect to secrecy and the effect that secrecy 

has on our investigations, I think some of the information sharing 

mechanisms you referred to in your comments within the Government ensure that information is shared adequately, that we are 

able to use it to effectively protect national security. I think beginning with the PATRIOT Act, removing the wall, we have made 

great steps to make sure that that information is shared. 

I understand part of your question also to be about transparency 

and sharing of information with the American public. I think 

we—— 

Ms. JACKSON LEE. And the NSL subsystem. 

Mr. HINNEN. Subsystem, yes. 

We are also involved in a review of much of the information that 

relates to these authorities. We have worked with Senator Wyden 

on the other side of the Hill to ensure that we have a review process for FISA opinions and orders to determine whether any of that 

information can be declassified so that it can be shared with the 

public. And so I think we are making steps in that regard as well. 

With respect to the NSL subsystem, it is an effort to both ensure 

that every step that we deem necessary in order to issue an NSL 

consistent with law, policy, and practice of the FBI is taken and to 

ensure that that happens efficiently. 

72 

Ms. JACKSON LEE. Let me get Mr. German. Thank you very 

much. 

Mr. German, what is your concern about an NSL subsystem, and 

can an FBI agent abuse the National Security Letters, say, to spy 

on their wife? And if you could quickly talk about the gag orders, 

nondisclosure orders. 

Mr. GERMAN. Certainly. We are concerned. The system again is 

simply internal checks. They don’t have an outside, independent 

party checking, and that creates concerns about oversight and particularly the use of FBI lawyers. I mean, the IG reports are very 

clear that FBI lawyers were intimately involved in the misuse of 

NSL’s and the Section 215 authority. So it is very clear that FBI 

lawyers aren’t necessarily the best check on potential abuse within 

the FBI. The FBI lawyers were intimately involved in the exigent 

letters. So that is a concern for us. 

With the gag orders, obviously, the ACLU has successfully sued 

to find the gag orders unconstitutional, and those reforms, reportedly by the FBI, have been put into practice, but we believe it is 

important to put them into statute and also to look at the Section 

215 gag order as well which is framed in the same way so that the 

reform there wouldn’t require additional legislation but actually 

would be implemented by Congress. 

Mr. SENSENBRENNER. The time of the gentlewoman has expired. 

The gentleman from California, Mr. Lungren, is recognized for 5 

minutes. 

Mr. LUNGREN. Mr. German, I would like to sort of focus in on 

the general overall criticism or misgivings the ACLU has about the 

issues before us. And the first is that in answer to a couple questions ago, there was mention of the fact why there is a distinction 

between the way we go about it in a criminal context and the way 

we go about it here in an anti-terrorism context and the idea that 

you need to sort of frontload the system a little bit, if you understand. And my question is, does the ACLU have a problem with 

that? That is, are we constricted by the protections in the Constitution such that we are not able to frontload the system, that is, to 

try and do investigations with these techniques prior to the time 

that you would actually be able to do some things in the criminal 

context? 

Mr. GERMAN. First of all, I disagree with the idea that criminal 

law enforcement techniques can’t be used proactively because I 

used them proactively in terrorism cases as an FBI agent in undercover investigations. So, number one, the distinction between 

proactive and post hoc I think is not—— 

Mr. LUNGREN. Precisely my question is do you say we do not 

need these in the way that was articulated, or even though they 

may be needed, the Constitution’s protections would not allow us 

to do that? That is what I am trying to find out, where your problem is. 

Mr. GERMAN. And I am not sure I am answering your question 

directly, but what we are concerned about is in the criminal system 

there are back-loaded protections, as I think you are referring to 

that don’t exist in the intelligence system. So if some law enforcement officer engaged in unconstitutional misconduct, the chances of 

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lic exposure, right to counsel, those things gets caught. In the intelligence system, it remains secret, so it is impossible for the person 

who is harmed to ever find out or very difficult to have those violations of rights addressed. So in authorizing the FBI to have powers, 

we want to make sure that those powers are narrowly circumscribed so that those possible Constitution—— 

Mr. LUNGREN. Right, and so I guess my question is, are you saying if we vary in any significant degree from the protections that 

are placed in the criminal justice context for the anti-terrorism context, that goes too far because those protections aren’t there, number one, and number two, it is unnecessary for us to do that? 

Mr. GERMAN. I don’t think we would go that far as you are suggesting. We have supported legislation that just makes very minor 

changes. 

Mr. LUNGREN. Okay. One of the criticisms you have lodged—and 

I don’t know if anybody talked about this beforehand, but in your 

prepared testimony you describe the FISA judges in not so endearing terms, suggesting that—well, you contrasted them with neutral 

and disinterested magistrates. Are you suggesting that the FISA 

Court construct is somehow inappropriate, that the FISA judges 

are not disinterested, that somehow that kind of a system is not 

working? They are not thoroughly independent enough to be able 

to protect the rights of Americans as contemplated by Congress in 

its legislation? 

Mr. GERMAN. I intended to cast no aspersions on FISA Court 

judges. 

Mr. LUNGREN. Well, you seem to contrast FISA Courts with neutral and disinterested magistrates. I am I misreading your testimony, or are you suggesting otherwise? 

Mr. GERMAN. I am suggesting that in an open court process, that 

is a much more effective check against any abuse. 

Mr. LUNGREN. Well, I understand that, but are you suggesting 

that because it is not an open court system, we can’t trust the 

FISA Court judges to be neutral and disinterested magistrates? Because that, it seems to me, would be the claim. 

Mr. GERMAN. That was not my intent to say that they weren’t 

neutral—— 

Mr. LUNGREN. I mean, they are Article III judges. Right? 

Mr. GERMAN. Yes. 

Mr. LUNGREN. And they serve pursuant to a term of service. 

They don’t give up the Constitution, as I understand it, when they 

serve there. So what I am trying to find out is why do you feel that 

that does not give the protections? We cannot trust these judges because they are not in open court? 

Mr. GERMAN. Well, we can’t trust a system that is closed. 

Mr. LUNGREN. Well, the system is the people—no, no, no, the 

judges. 

Mr. GERMAN. But the people have no—oh, you mean the actual 

individuals involved. 

Mr. LUNGREN. Yes. 

Mr. GERMAN. They have no access to the information, and in a 

closed system, it is difficult for them to get the information that is 

necessary to determine the entire—— 

Mr. LUNGREN. You understand in camera proceedings. Right? 

74 

Mr. GERMAN. Certainly. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Georgia, Mr. Johnson, is recognized for 5 

minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

We have got—what—thousands of FBI agents in the United 

States. Is that correct? 

Mr. HINNEN. Yes, Congressman. 

Mr. JOHNSON. And of those thousands, are each of them authorized to issue National Security Letters? 

Mr. HINNEN. Only those FBI agents who are working on an authorized national security investigation would be able to issue a 

National Security Letter. 

Mr. JOHNSON. Approximately how many FBI agents would have 

that authority theoretically? 

Mr. HINNEN. I don’t have that number here today but my colleague from the FBI is pointing out that the authority to actually 

issue a National Security Letter is only the special agent in charge 

of each field office or FBI officer of a similar level. 

Mr. JOHNSON. How many field offices? 

Mr. HINNEN. Fifty-six. 

Mr. JOHNSON. Fifty-six. So you are saying it would be about 56 

individuals authorized to issue a National Security Letter. 

Mr. HINNEN. Plus a few individuals at headquarters, yes, Congressman. 

Mr. JOHNSON. Now, when those National Security Letters are 

issued, records are kept. 

Mr. HINNEN. Correct. That is one of the benefits of the new subsystem. They are kept in a centralized database. 

Mr. JOHNSON. And they are kept there forever? Are they ever 

purged? The requests and the responses to the requests and narratives, reports, things like that, those things are kept for how 

long? 

Mr. HINNEN. Well, Congressman, I am not clear whether you are 

asking about the applications themselves or whether you are asking about the documents produced in response to them. 

Mr. JOHNSON. Both. 

Mr. HINNEN. Both. The applications themselves are kept in accordance with the FBI’s document retention policies. 

Mr. JOHNSON. Is that forever or is it at some point the documents are purged? 

Mr. HINNEN. I believe they are purged at some point, Congressman, but I would need to check and get back to you on that. 

Mr. JOHNSON. How many people would have access to those 

records? 

Mr. HINNEN. Well, Congressman, that depends on what has been 

produced and what has been provided in response. Documents can 

only be widely shared if they are determined to be within the scope 

of an NSL, in other words, not an overproduction, and if they are 

determined to have investigative value. 

Mr. JOHNSON. And these records that are kept, they just simply 

need to be denoted as relevant to national security investigations. 

Mr. HINNEN. Yes, Congressman. 

75 

Mr. JOHNSON. It doesn’t have to be information that pertains to 

a foreign power or an agent of a foreign power. 

Mr. HINNEN. The records themselves don’t have to pertain specifically to an agent of a foreign power and they have to be relevant 

to a national security investigation. That is correct. 

Mr. JOHNSON. And that national security investigation can be focused on an American citizen who happens to have an incidental 

conduct or contact with someone who a National Security Letter 

has been issued for in the past, and their name comes up in some 

kind of a database. 

Mr. HINNEN. No, Congressman. If we determined that the only 

basis that we had with respect to an individual was incidental conduct, we would not be conducting a national security investigation 

of that individual. 

Mr. JOHNSON. Well, you know, I have great respect for members 

of the law enforcement community, FBI, but I am concerned about 

the secrecy involved, the fact that abuse can never be uncovered or 

discovered, and the number of persons with access to information 

that may or may not have been purged that gets put into some 

other context and used for an investigation that may have an illicit 

purpose. These instances are created when we have a culture of secrecy that I think was legislatively imposed by the hastily passed 

PATRIOT Act. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The Chair recognizes himself for 5 minutes. 

I have a few questions to ask of you, Mr. Hinnen, that I don’t 

think need much elaboration, just a yes or no answer. 

Mr. HINNEN. I will try to be very brief. 

Mr. SENSENBRENNER. Okay. 

Relative to NSL gag orders, that was litigated in Doe v. Mukasey 

that went to the Second Circuit. And isn’t it true that the Second 

Circuit said that any infirmity could be corrected by the Government amending their procedures? 

Mr. HINNEN. That is correct. 

Mr. SENSENBRENNER. Okay. Did the FBI do so and when? 

Mr. HINNEN. Yes, it did, Mr. Chairman, shortly after the Second 

Circuit’s decision in Doe v. Mukasey. 

Mr. SENSENBRENNER. Now, has anyone exercised that authority 

since the procedures were put in place? 

Mr. HINNEN. It has been exercised once. 

Mr. SENSENBRENNER. Just once. And how long was that over 

what period of time? 

Mr. HINNEN. Well, since I believe 2008. 

Mr. SENSENBRENNER. It is just once since 2008. So 2-plus years. 

Now, the Mayfield case which was brought up. Wasn’t that case 

reversed by the appellate court? 

Mr. HINNEN. Yes, Congressman. The district court’s decision is 

no longer standing. 

Mr. SENSENBRENNER. Now, in Doe v. Mukasey, was that a finding 

of a defect in the statute, not agent abuse? 

Mr. HINNEN. In Doe v. Mukasey, yes, that was the finding of a 

defect in the statute. Correct. 

76 

Mr. SENSENBRENNER. Now, isn’t it true that FBI agents face investigation by the Office of Professional Responsibility and ultimately dismissal for neglect of duty or misconduct? 

Mr. HINNEN. That is correct. 

Mr. SENSENBRENNER. Now, have there been any cases on FBI 

overreach brought before the OPR to your knowledge since the PATRIOT Act was passed? 

Mr. HINNEN. There have been matters associated with the errors 

the IG identified in his reports referred to OPR and, in addition, 

referred to the Public Integrity Section of the Department of Justice. 

Mr. SENSENBRENNER. And was anybody either prosecuted or dismissed as a result of what the Inspector General had identified? 

Mr. HINNEN. My understanding is that no one was. 

Mr. SENSENBRENNER. Now, Mr. German. You know, you keep on 

talking about the necessity of intelligence activity, litigation, application for FISA orders or warrants or anything like that being 

open. How are we able to get the information we need if all of this 

is in open court and the people who are being investigated or proposed to be investigated know that law enforcement is on to them 

relative to the possible commission of a terrorist act? 

Mr. GERMAN. I did not suggest that there should be no secrecy 

involved in the process. I mean, clearly even in the criminal system, there is secrecy involved in the process as the investigation 

proceeds. But where there is a system that is set up that is a closed 

system that doesn’t allow an adversarial process to challenge the 

Government’s position or facts, you have to put in strong guidelines 

on the front end to make sure that that authority isn’t being—— 

Mr. SENSENBRENNER. Well, with respect to National Security 

Letters, didn’t we put those guidelines in in the 2005 PATRIOT Act 

reauthorization so much so that the plaintiff in a case, as a result 

of the amendment of the law, ended up dropping the case? 

Mr. GERMAN. That was an ACLU case on section 215 I think you 

are referring to. 

Mr. SENSENBRENNER. Yes. 

Mr. GERMAN. And while we appreciate that the gag was narrowed a bit, the reason we dropped the case wasn’t because we 

don’t still have problems with the gag. We do. We were actually 

litigating that same issue with regard to NSL’s, and so that was 

just a—— 

Mr. SENSENBRENNER. But didn’t the Justice Department and the 

FBI change their NSL procedure in response to complaints? 

Mr. GERMAN. Yes, reportedly they did. And all we—— 

Mr. SENSENBRENNER. Well, I appreciate the fact the ACLU is an 

advocate, but there has got to be some balance involved in this because you might be protecting a couple of people who would be receiving these court orders or are under investigation, but I think 

the whole purpose of treating terrorism different than criminal acts 

is to protect maybe tens of thousands of people who would be 

placed at risk if there was a terrorist attack on the Super Bowl or 

the World Series or some other place where people congregated. 

This Subcommittee Chair when he was the full Committee Chair 

really made an effort to do that, but I guess what I am hearing 

from you, Mr. German, is that it is never good enough. 

77 

Thank you very much. My time has expired. 

The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. German, I think you would acknowledge that despite the 

public concerns over section 215 and business records, the real 

problem where we have had reports of problems has been with the 

National Security Letters. Correct? That has been the main—— 

Mr. GERMAN. There were problems with the Section 215 authority that were identified in the IG report, but the number of 215 orders is vastly smaller. 

Mr. GOHMERT. Compared to the NSL’s. Correct? Yes. 

Now, you have talked about narrowing the scope of the NSL’s before. How specifically would you recommend the scope be narrowed? 

Mr. GERMAN. Well, we have supported legislation that has been 

proposed in the House that would narrow it to use against an 

agent of a foreign power, information about a foreign power’s activities, or someone in contact with an agent of a foreign power. So 

we support that legislation. 

Mr. GOHMERT. So that is the only proposal you have as far as 

narrowing the scope. It has to be an agent of a foreign power? 

Mr. GERMAN. Well, that is not what it says. It has to be an agent 

of a foreign power. There is a three-pronged test. Agent of a foreign 

power, information about an agent of a foreign power’s activities, 

or someone in contact with an agent of a foreign power. 

Mr. GOHMERT. And that is your proposal for narrowing the scope. 

Mr. GERMAN. Well, that is not our proposal. That is what has 

been proposed—— 

Mr. GOHMERT. Well, see, my question was to you. What would 

you personally—you are here testifying and you went into what has 

been proposed by somebody else. I am asking you the question. 

What would you propose personally as a way to narrow the scope 

specifically? 

Mr. GERMAN. You know, we have called for in the past bringing 

it back to the pre-9/11—— 

Mr. GOHMERT. Now, you say ‘‘we.’’ 

Mr. GERMAN. The ACLU has—— 

Mr. GOHMERT. I know, but I am asking what you think would 

be the best way to narrow the scope, you, Mr. German. 

Mr. GERMAN. Well, I am here representing the American Civil 

Liberties Union, so—— 

Mr. GOHMERT. So you don’t have an opinion. All right. 

Mr. GERMAN. Well, my opinion is in line with the American Civil 

Liberties Union. 

Mr. GOHMERT. Oh, okay. All right. And their opinion is specifically to narrow the scope how? Those things you just mentioned or 

is there something else? 

Mr. GERMAN. Right. I mean, you could narrow the scope in a 

number of different ways, but what I am saying is we have supported the legislation that has narrowed it in that way. So that 

would be an effective way of doing it. 

Mr. GOHMERT. Is there some other way specifically you would 

recommend? 

78 

Mr. GERMAN. Sure. You could make it just an agent of a foreign 

power, I mean, just the way it was pre-9/11. So there are a number 

of ways you can do it, but we are supporting legislation that does 

it in that way. 

Mr. GOHMERT. That way being the three prongs? 

Mr. GERMAN. The three-pronged test. 

Mr. GOHMERT. All right. Thank you. 

Do you believe that the NSL’s could be adequately served by 

using the 215 power? 

Mr. GERMAN. I am sorry? 

Mr. GOHMERT. Do you think that the information that would be 

pursued by NSL’s could be adequately addressed by Section 215 requests? 

Mr. GERMAN. You know, certainly the Section 215 authority has 

an independent view that would be a very effective way of adding 

some oversight to the use of NSL’s. We are concerned still about 

the low relevance standard of the Section 215 authority and we 

would ask that that authority also be raised to the three-pronged 

test that is in the legislation regarding the NSL’s. 

Mr. GOHMERT. And for our other two witnesses, I know that the 

suggestion continues to be or the argument continues to be, well, 

gee, there is nothing that 215 does that a grand jury subpoena 

can’t do. But you would each surely acknowledge that in the grand 

jury process, even though a great prosecutor could arguably indict 

a ham sandwich, that nonetheless you have independent people 

who are not associated with law enforcement, with the Justice Department who are on a grand jury who actually bring in an independent view to reviewing those subpoenas before they are made. 

You all would surely acknowledge that. Correct? I mean, that is a 

difference that a grand jury subpoena has that an NSL does not 

have since it is all interagency. Correct? 

Mr. HINNEN. I thought your question initially was going to business records orders, in which case—— 

Mr. GOHMERT. Well, 215 and NSL’s. 

Mr. HINNEN. With respect to business records orders, there is actually an independent Article III judge who reviews it. 

Mr. GOHMERT. Right. You are right. Correct. So it really goes to 

NSL’s. 

Mr. HINNEN. With respect to National Security Letters, they 

aren’t submitted to a grand jury prior to their issuance, but they 

are reviewed by the recipients and their lawyers when they receive 

them. So there is independent review. 

Mr. GOHMERT. Well, I am talking about before they are sent out. 

I see my time has expired. Thank you. 

Mr. SENSENBRENNER. Yes, it is. Thank you very much, gentleman from Texas. 

I would like to thank all of our witnesses for their testimony and 

answers to Committee Members’ questions today. 

Without objection, all Members will have 5 legislative days in 

which 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. 

79 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

And without objection, this hearing stands adjourned. 

[Whereupon, at 11:24 a.m., the Subcommittee was adjourned.] 

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