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IMPLEMENTATION OF THE USA PATRIOT ACT:

SECTIONS OF THE ACT THAT ADDRESS THE

FOREIGN INTELLIGENCE SURVEILLANCE ACT

(FISA)

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 26 AND APRIL 28, 2005

Serial No. 109–17

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel on Intelligence 

and Homeland Security 

JASON CERVENAK, Full Committee Counsel 

MICHAEL VOLKOV, Deputy Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

HEARING DATES 

Page 

Tuesday, April 26, 2005

PART I .................................................................................................................... 1

Thursday, April 28, 2005

PART II .................................................................................................................. 39

OPENING STATEMENT 

APRIL 26, 2005

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3

APRIL 28, 2005

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 39

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 40

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 41

WITNESSES 

APRIL 26, 2005

The Honorable Mary Beth Buchanan, United States Attorney, Western District of Pennsylvania, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. James A. Baker, Counsel for Intelligence Policy, U.S. Department of 

Justice 

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 15

Ms. Suzanne Spaulding, Managing Director, The Harbour Group, LLC 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 20

APRIL 28, 2005

Mr. Kenneth L. Wainstein, interim U.S. Attorney, District of Columbia 

Oral Testimony ..................................................................................................... 43

Prepared Statement ............................................................................................. 46

Page

IV

Mr. James A. Baker, Counsel for Intelligence Policy, U.S. Department of 

Justice 

Oral Testimony ..................................................................................................... 55

Prepared Statement ............................................................................................. 57

Mr. Robert S. Khuzami, former Assistant U.S. Attorney, Southern District 

of New York 

Oral Testimony ..................................................................................................... 61

Prepared Statement ............................................................................................. 63

Mr. Gregory T. Nojeim, Associate Director/Chief Legislative Counsel, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 67

Prepared Statement ............................................................................................. 69

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

APRIL 26, 2005

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 109

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 109

Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. Department of Justice, dated April 30, 2003, to the Honorable Orrin Hatch, 

Chairman, Committee on the Judiciary, United States Senate ....................... 111

Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. Department of Justice, dated March 5, 2003, to the Honorable Orrin Hatch, 

Chairman, Committee on the Judiciary, United States Senate ....................... 120

Letter from Daniel J. Bryant, Assistant Attorney General, U.S. Department 

of Justice, dated July 31, 2002, to the Honorable Bob Graham, Chairman, 

Select Committee on Intelligence, United States Senate, and the Honorable 

Richard C. Shelby, Vice-Chairman, Select Committee on Intelligence, 

United States Senate ........................................................................................... 121

APRIL 28, 2005

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 126

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 126

Redacted document ACLU received in response to a request under the Freedom of Information Act to disclose activity related to Transactional Records 

National Security Letters issued since October 26, 2001 ................................. 128

Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Richard B. Cheney, President of the 

Senate, United States Senate ............................................................................. 134

Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to L. Ralph Mecham, Director, Administrative Office of 

the United States Courts ..................................................................................... 136

Form National Security letter from the U.S. Department of Justice .................. 138

Illustrations to show the implications of the PATRIOT Act and Doe v. 

Ashcroft on Section 2709 of the Electronic Privacy Act .................................... 140

(1)

IMPLEMENTATION OF THE USA PATRIOT 

ACT: SECTIONS OF THE ACT THAT ADDRESS 

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

Part I 

TUESDAY, APRIL 26, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to call, at 10 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. This week the 

Subcommittee on Crime, Terrorism, and Homeland Security will 

continue to review its review of the USA PATRIOT Act by conducting three hearings. 

These hearings will examine the provisions that affected the Foreign Intelligence Surveillance Act of 1978, popularly known as 

FISA. Today we will hear testimony on sections 204, 207, 214, and 

225 of the PATRIOT Act. 

Additionally, we have asked the witnesses to address sections 

6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2001, which amended FISA. These sections are similarly 

set to expire on December 31 of this year. 

The witnesses will discuss each provision in depth. With that in 

mind I will keep my comments brief and just mention the history 

of the Foreign Intelligence Surveillance Act of 1978. The Congress 

enacted the first Federal wiretap statute to prevent disclosures of 

Government secrets during World War I. Today, except under limited circumstances, it is unlawful to intercept oral, wire and electronic communications, access stored electronic communications, or 

use a pen register or trap and trace device. 

It is furthermore unlawful to abuse electronic surveillance authority under the FISA. Today the U.S. Courts tend to use a twopronged expectation of privacy analysis to determine whether the 

fourth amendment has, in fact, been violated. 

This language is from Justice Harlan’s concurrence in Silverman

v. United States, in which he stated, and I quote, my understanding of the rule that has emerged from prior decisions is that 

there is a twofold requirement, first, that a person have exhibited 

2

an actual or subjective expectation of privacy, and second, that the 

expectation be one that society is prepared to recognize as reasonable, close quote. 

Consistent with the fourth amendment, the Congress created 

statutory procedures to allow limited law enforcement access to private communications and communication records. Today under title 

III of the Omnibus Crime Control and Safe Streets Act of 1968, it 

is a Federal crime to intercept wire, oral, or electronic communications of another without court approval, unless one of the parties 

consents. 

It is also a Federal crime to disclose any information illegally obtained. The Crime Control Act did not cover national security 

cases, however. In 1978, the Foreign Intelligence Surveillance Act 

was enacted to set standards for foreign intelligence investigations. 

FISA authorized the Government to collect intelligence within 

the United States on foreign powers and agents of foreign powers. 

FISA also established a special court to review and authorize or 

deny wiretapping and other forms of electronic eavesdropping for 

purposes of foreign intelligence gathering in domestic intelligence 

cases. 

While the PATRIOT Act updated the FISA, it did not change the 

procedures against abuse. Before and after the enactment of the 

PATRIOT Act, FISA still requires advanced judicial approval for 

electronic surveillance and physical searches with limited exceptions. 

FISA still requires a high-ranking Government official to sign 

and certify each FISA application. FISA still requires the Attorney 

General or his or her deputy to personally sign and approve every 

FISA application. FISA still requires that the Government must 

have probable cause to believe that a FISA target is an agent of 

a foreign power as defined by the statute. 

And, if the target is also a U.S. Citizen, FISA still requires the 

Government to show that the target is engaged in criminal activity, 

such as international terrorism, sabotage or espionage, in addition 

to being an agent of a foreign power. 

With this background on FISA, I look forward to hearing the testimony from the witnesses, and now recognize the distinguished 

gentlemen from Virginia, the Ranking Member, Mr. Bobby Scott, 

for his statement. 

Mr. SCOTT. Thank you, Mr. Chairman, for holding this hearing 

on the issues before us today, in the context where we have actually broken down the wall that existed between foreign intelligence 

gathering, particularly foreign intelligence, and criminal proceedings, to give the Government broad authority to collect and 

share information, mostly secret. 

I am concerned that we have also blurred the traditional line of 

protection for freedoms and privacy. While I agree that some lifting 

of traditional restrictions in this area may be justified in order to 

induce Government to better use the authorities it already has, I 

am also mindful that those restrictions were placed there for good 

reason. 

We have seen in the past the COINTELPRO, Watergate, FBI 

spying on Martin Luther King, Jr., and other incidents as an examVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042605A\20875.000 HJUD1 PsN: 20875
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ple of what can occur if we do not keep tight enough rein on Government’s use of extraordinary power. 

We should not have to experience those problems again in order 

to ensure that such abuses do not occur. Some of the provisions 

today reflect a trend that is troubling, the trend of Government to 

justify an ever-increasing extension of extraordinary powers based 

on convenience. We are considering time frames for surveillance operations that have been extended even more since the PATRIOT 

Act extensions, all because the Government says it is too costly for 

it to have to justify extensions in court, even under the low burden 

of the FISA court. 

If we can commit to speed to spend billions of dollars in prisons 

and other law enforcement costs just to codify sound bites urged by 

the Department, we can certainly spend time and expense that it 

takes to ensure our privacy and freedoms are not unduly abridged. 

And, Mr. Chairman, I believe it is important that we be safe and 

maintain our privacy and freedoms, and I don’t think we should 

have to operate under the premise that we have to give up one in 

order to get the other. 

So, Mr. Chairman, I look forward to the testimony by witnesses 

on the provisions before us today, to learn how they are being used 

and how these extraordinary powers can be authorized, whether or 

not the sufficient oversight is being undertaken, and whether the 

powers are used in a way to protect our safety as well as privacy 

and freedoms. And I thank you again for calling the hearing. 

Mr. COBLE. I thank the gentleman from Virginia. We have been 

joined by the distinguished gentleman from Michigan, the Ranking 

Member of the full Committee. Mr. Conyers, do you have an opening statement? 

Mr. CONYERS. Just a comment. Thank you, Chairman Coble. We 

have three Members and three witnesses, so we all get a chance 

to make a comment. 

I come here in support of expiration. There are three areas that 

I would like to see expire and not be renewed. One is section 207, 

one is section 214, and the other is the Lone Wolf provision, and 

I would like everybody to try to make it as clear as they can why 

they agree with me, hopefully. 

Section 207 allows secret surveillance up to a year. The justification for allowing the extraordinary intrusions under the Foreign Intelligence Surveillance Act is the extensive judicial oversight by the 

FISA court. This section takes that reasonable oversight away and 

gives the Justice Department authority to surveil suspects long 

after the relevant issues, the facts have expired, and I think that 

is not good. 

I look forward to hearing why section 214 should be reauthorized. Pen register and trap and trace orders no longer are needed 

to be aimed at an agent of a foreign power under this provision and 

are available under the vague standard of relevance. This is even 

more troublesome in light of how the PATRIOT Act has permanently expanded these orders to allow the Government to record 

the websites a person visits, and addresses and subject headings of 

the e-mails that are sent and received. 

4

And, finally, I hope that we examine the Lone Wolf provision, 

also set to expire this year, where a person need not be required 

to be connected with a terrorist organization. 

FISA allows the secret surveillance, search and seizure, only because it is necessary to protect us from foreign powers. To expand 

FISA to apply to those who by definition have no connection to a 

foreign power starts law enforcement down a very obvious slippery 

slope. 

And those are my comments, Chairman Coble. I thank you for 

this opportunity. 

Mr. COBLE. I thank the gentleman from Michigan. 

Ladies and gentleman, it is the practice of the Subcommittee to 

swear in all witnesses appearing before us. So if you would please 

stand and raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. 

You may be seated. Today we have three distinguished witnesses. Our first witness is Mary Beth Buchanan, United States 

Attorney for the Western District of Pennsylvania. 

Ms. Buchanan has this distinction of being the first woman in 

Pennsylvania’s history for this presidentially appointed position. 

Prior to her appointment as U.S. Attorney, Ms. Buchanan was an 

Assistant U.S. Attorney. 

From 1992 to 2001, Ms. Buchanan served in the Criminal Division representing the United States in the prosecution of both financial and violent crimes. Ms. Buchanan is a graduate of the California University of Pennsylvania and the University of Pittsburgh 

School of Law. 

Our second witness is Mr. James A. Baker. Mr. Baker has been 

a Counsel For Intelligence Policy in the Office of Intelligence Policy 

and Review at the Department of Justice since 2002. 

He served as Acting Counsel from May 2001 until January of 

2002. Prior to that he was OIPR’s Deputy Counsel for Intelligence 

Operations. Prior to joining OIPR, he served as a Federal prosecutor handling numerous international white collar crimes for the 

Criminal Division of the Department of Justice. 

Mr. Baker was awarded his undergraduate degree from the University of Notre Dame and his J.D. And M.A. From the University 

of Michigan. 

Our final witness today is Ms. Suzanne Spaulding, the Managing 

Director at the Harbour Group. Recently Ms. Spaulding worked as 

the Executive Director of the two Congressionally mandated Commissions, the National Commission on Terrorism and the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction. 

Ms. Spaulding received her undergraduate and law degrees from 

the University of Virginia. 

Now, ladies and gentlemen, as you all have previously been told, 

we operate by the 5-minute rule here. Your testimony has been reviewed and will be rereviewed. So if you could comply with that 5-

minute rule. We impose the same 5-minute rule against us when 

questioning you all. So when we examine you, if you can be as 

5

terse as possible that will speed matters along. I do not mean to 

hold a stopwatch on you, but we have things to do today. 

So, Ms. Buchanan, you will start off. When the amber light appears that will advise you that you have a minute to go, and when 

the red light appears that indicates that the ice on which you are 

skating has become very thin. 

Just a minute. If you will suspend, Ms. Buchanan, we have been 

joined by our friend from Massachusetts, Mr. Delahunt. 

Ms. Buchanan, you are recognized for 5 minutes. 

TESTIMONY OF THE HONORABLE MARY BETH BUCHANAN, 

UNITED STATES ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA, U.S. DEPARTMENT OF JUSTICE 

Ms. BUCHANAN. Thank you, Mr. Chairman, Ranking Member 

Scott, Members of the Subcommittee. I am Mary Beth Buchanan, 

the United States Attorney for the Western District of Pennsylvania, and also the Director of the Executive Office for United 

States Attorneys. 

It is an honor to appear before you today to discuss the necessary 

provisions of the USA PATRIOT Act. As you know, there are three 

main themes of the PATRIOT Act: First, to facilitate the sharing 

of information between law enforcement and the intelligence communities; second, to modernize our legal tools to keep pace with 

technology; and, third, to create parity between the criminal law 

and the national security laws. 

My remarks today will focus primarily on this third theme. Section 214 of the PATRIOT Act deals with the use of pen registers 

and trap and trace devices under FISA. A pen register is a device 

that can track dialing, routing, addressing, and signaling information about a telephone or Internet communication. 

For example, which numbers are dialed from a particular telephone. A trap and trace device gathers the telephone numbers 

which call a particular telephone. In neither situation is content information collected. These devices are commonly used in the early 

stages of a criminal investigation to reveal who is talking to whom, 

and they can only be used upon certification to a judge that the information is relevant to an ongoing criminal investigation. 

The information obtained often forms the building blocks supporting the issuance of search warrants and wiretap orders, and 

may also be very valuable at trial to show the connection between 

coconspirators. 

The process for obtaining authorization for pen register or trap 

and trace from the FISA court is similar under section 214. The 

Government must show that the FISA court—or must show the 

FISA court that the information sought is relevant to an intelligence investigation. The FISA law, however, prohibits investigations of United States persons which are based solely upon activities that are protected by the first amendment. 

Let me give you two examples of how pen registers have been 

used in criminal cases in my district. The first example is a domestic terrorism case in which David Wayne Hull, a self-declared imperial wizard of the Ku Klux Klan was convicted and sentenced to 12 

years in prison for illegal possession of firearms and destructive devices. 

6

In that case, the use of pen registers and trap and trace devices 

showed that Hull was in frequent telephone contact with other 

members of a white supremacist organization, not only in Pennsylvania but in four other States. These tools eventually helped to obtain search warrants and title III orders and to convict Hull for 

those offenses. 

Pen register information was also very essential to develop probable cause for a wiretap in a large multi-year drug investigation. 

Fifty-one defendants, responsible for bringing thousands of kilograms of cocaine and heroin into the Western District of Pennsylvania were convicted on money laundering, drug and firearm 

charges. 

The pen registers helped to develop the probable cause to establish that these individuals were communicating with one another 

in order to transact their drug trafficking business. This information led to wiretaps and ultimately resulted in the conviction of all 

51 defendants. In fact, most of the defendants pled guilty because 

they realized they had no defense to the charges. 

More importantly, this case had a substantial impact upon the 

Western District of Pennsylvania. The availability of heroin and cocaine was dramatically reduced. In fact, the heroin overdose deaths 

declined from 138 in 2001 to 46 in 2003. 

These are just a few examples to show how important these tools 

can be in criminal investigations. The same tools must be available 

in national security investigations. Prior to the passage of the PATRIOT Act, FISA required the Government to certify that the facilities to be monitored had been used or were about to be used to 

contact a foreign agent or an agent of a foreign power. 

Thus, this was a much higher standard and a much higher showing than was ever required under the criminal law to obtain a pen 

register or a trap and trace order. I hope that you will agree that 

terrorism investigations should be on equal footing with criminal 

investigations. 

Section 214 of the PATRIOT Act does just that. We must continue to pursue the terrorists with every legal means available. We 

need the important tools of the PATRIOT Act to keep our Nation 

safe from terror attack. 

I thank the Committee for its continued leadership and support, 

and I would be glad to answer your questions. Thank you. 

[The prepared statement of Ms. Buchanan follows:]

7

PREPARED STATEMENT OF MARY BETH BUCHANAN


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Mr. COBLE. Thank you, Ms. Buchanan. Mr. Baker, you are recognized for 5 minutes. 

TESTIMONY OF JAMES A. BAKER, COUNSEL FOR 

INTELLIGENCE POLICY, U.S. DEPARTMENT OF JUSTICE 

Mr. BAKER. Thank you, Mr. Chairman. Chairman Coble, Ranking 

Member Scott and Members of the Committee, I am pleased to be 

here today to discuss the Government’s use—— Mr. COBLE. Mr. Baker, if you will suspend just a minute. We 

have been joined by the distinguished gentleman from Ohio, Mr. 

Chabot. 

Go ahead, Mr. Baker. I won’t penalize you for those 10 seconds, 

Mr. Baker. 

Mr. BAKER. Thank you, sir. 

I am pleased to be here today to discuss the Government’s use 

of the authorities granted to it by Congress under FISA, including 

the amendments to FISA under the USA PATRIOT Act and the Intelligence Reform Act of 2004. Those provisions have made a critical contribution to our ability to protect the national security of 

the United States consistent with the need to protect the privacy 

of Americans. 

They affect nearly every FISA application that we file, and we 

ask you to renew them. As the Chairman mentioned, I am the 

Counsel for Intelligence Policy and the head of Office of Intelligence Policy and Review at the Department of Justice. 

OIPR, as we are known, conducts oversight of the intelligence 

and counterintelligence activities of the executive branch agencies, 

including the FBI, and my office prepares and presents to the FISA 

court all FISA applications, and we represent the United States before the FISA court. 

I report directly to the Deputy Attorney General. I am a career 

member of the Senior Executive Service and not a political appointee. 

Rather than reading my written statement into the record today, 

I would just like to make a few observations about FISA that I 

think will be helpful to our discussion generally today. First, I 

would just like to mention the overall purpose of FISA. As the 

Chairman discussed, FISA was enacted in 1978 to provide legislative authorization for and regulation of all electronic surveillance 

conducted in the United States for foreign intelligence purposes. 

FISA was not intended to prohibit the collection of important foreign intelligence information, but rather to subject such collection 

to statutory procedures. 

Over the years, Congress has expanded the scope of FISA. In 

1994 it was expanded to cover physical searches, in 1998 to provide 

for separate authorization for pen registers and access to certain 

business records. In 2001, of course, we have the PATRIOT Act 

that we are all familiar with and why we are here today. 

In addition to that purpose of FISA, I would like to make clear, 

to describe that FISA established clear standards for who could be 

a target under FISA. Since 1978, the only authorized targets of full 

content FISA collection have been foreign powers and agents of foreign powers. Those terms are defined terms under the act. The PATRIOT Act did not change the definition of those terms. 

14

As you know, section 6001 of the Intelligence Reform Act did 

change one of the definitions of an agent of foreign power to include a non-U.S. Person who engages in international terrorism or 

activities in preparation therefor. This is the so-called Lone Wolf 

provision that we will discuss today. 

Similarly, FISA only permits the use of other collection activities, 

such as pen registers, when there is a sufficient nexus between the 

information that will be collected and a legitimate intelligence investigation. And when the investigation involves a U.S. Person, it 

cannot be based solely on first amendment activities. 

In addition, FISA includes various provisions to ensure accountability for the authorizations that are approved under FISA. It includes mechanisms, several mechanisms to ensure written accountability within the executive branch for the decision to engage in 

foreign intelligence collection. This serves as a check on executive 

branch arbitrariness. For example, each full content FISA application must have a certification from a high ranking official and must 

be signed by the—personally signed by the Attorney General or his 

Deputy. And FISA’s other provisions also include mechanisms to 

ensure accountability. 

In addition, there is judicial oversight of our activities under 

FISA. Whenever a surveillance or a search for foreign intelligence 

purposes may involve the fourth amendment rights of any U.S. 

Person, approval for such collection must come from a neutral and 

detached Federal judge. 

Moreover, even when such fourth amendment rights are not implicated, such as for pen register data, FISA still requires approval 

by a Federal judge or magistrate before the Government can engage in such collection. 

Finally, I would like to highlight some additional privacy protections that are in FISA, and they are known as minimization requirements. The Government may only conduct a full content surveillance or search when there are adequate procedures in place to 

minimize the intrusion into the privacy of U.S. Persons. Each application that we file for full content collection must include specific 

minimization procedures that are approved by the Attorney General, are reasonable in their design, and minimize the acquisition, 

retention and dissemination of information about U.S. Persons, 

consistent with the need of the Government to obtain, produce, and 

disseminate foreign intelligence. In each case, the Federal judge orders the Government to follow those procedures. 

With these principles in mind, I am happy to answer any questions the Committee may have on our use of FISA and the authorities granted to us by Congress in the PATRIOT Act and the Intelligence Reform Act. 

[The prepared statement of Mr. Baker follows:]

15

PREPARED STATEMENT OF JAMES A. BAKER


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Mr. COBLE. Thank you, Mr. Baker. Ms. Spaulding. 

TESTIMONY OF SUZANNE SPAULDING, MANAGING DIRECTOR, 

THE HARBOUR GROUP, LLC 

Ms. SPAULDING. Chairman Coble, Ranking Member Conyers, and 

Subcommittee Ranking Member Scott and Members of the Committee, thank you for inviting me to participate in today’s hearing. 

I understand that this is just one of many hearings the Committee will be holding on the implementation of the USA PATRIOT 

Act. I commend you for your commitment to undertaking a thorough examination of these significant provisions. 

I would like to begin my testimony by emphasizing that I have 

spent over 20 years working on efforts to combat terrorism, starting in 1984 as Senior Counsel to Senator Arlen Specter of Pennsylvania, who introduced and guided to enactment the first law to provide extraterritorial jurisdiction over terrorist attacks against 

Americans abroad. 

Over the last 2 decades in my work at the Central Intelligence 

Agency, at Congressional intelligence oversight Committees, and as 

Executive Director of two independent commissions, I have seen 

how the terrorist threat changed, from one aptly described in the 

mid-1980’s by Brian Jenkins’famous remark that, quote, terrorists 

want a lot of people watching, not a lot of people dead, to one that 

is now more aptly described by former DCI Jim Woolsey’s observation that the terrorists of today don’t want a seat at the table, they 

want to destroy the table and everyone sitting at it. 

There is no question that today we face a determined set of adversaries bent on destroying American lives and America’s way of 

life. The counterterrorism imperative is to deny the terrorists both 

of these objectives. 

My testimony this morning attempts to assess how well two key 

provisions, in particular the Lone Wolf amendment and section 

214, satisfy this counterterrorism imperative. Let me start with the 

Lone Wolf amendment to FISA. 

The Foreign Intelligence Surveillance Act is an extremely important national security tool. The problem with the Lone Wolf provision is that it needlessly undermines the policy and constitutional 

justification for this essential authority. The Lone Wolf provision is 

often referred to as the Moussaoui fix. But, in fact, no fix was needed in the Moussaoui case, because it was not FISA’s requirements 

that prevented the FBI from gaining access to his computer back 

in August of 2001. The problem was the FBI’s misunderstanding 

of FISA’s requirements. 

This conclusion is supported by the findings of the Joint Congressional Intelligence Committee inquiry into the 9/11 attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission. 

As the Senate Judiciary Committee report explained, the FBI did 

not have a proper understanding of either the probable cause 

standard or the legal definition of the agent of a foreign power requirement. Specifically, the Bureau was under the incorrect impression that the statute required a link to an already identified 

or recognized terrorist organization. 

20

The Senate Judiciary Committee report explains that while a 

group is not defined in FISA, in common parlance and using other 

legal principles, including criminal conspiracy, a group consists of 

two or more persons whether identified or not. And the probable 

cause standard does not mean more likely than not or an over 51 

percent chance, but only the probability and not a prima facie 

showing. 

The report concluded that the Government did have sufficient information to meet the FISA standard and gain access to 

Moussaoui’s computer. 

Some would argue that we ought to include the Lone Wolf 

amendment to FISA anyway, just in case. The problem with this 

reasoning is that it comes at a high cost. In addition to being unnecessary, the Lone Wolf provision, by extending FISA’s application 

to an individual acting entirely on their own, undermines the policy 

and constitutional justification for the entire FISA statute. 

When Congress enacted FISA, according to the Senate report, it 

carefully limited its application in order to, quote, ‘‘ensure that procedures established in FISA are reasonable and in relation to legitimate foreign counterintelligence requirements and the protective rights of individuals. Their reasonableness depends, in part, 

upon an assessment of the difficulties of investigating activities 

planned, directed and supported from abroad by foreign intelligence services and foreign-based international terrorist groups.’’ The Congressional debate and the court cases that informed and 

followed it clearly reflect the sense that this limited exception from 

normal criminal warrant requirements is justified only when dealing with foreign powers or their agents, and was further enforced 

in the FISA court of review opinion. 

Congress should let the Lone Wolf provision sunset. If the Government can make a compelling case that targets have escaped 

necessary surveillance because the Government has been unable to 

meet the relatively low probable cause standard for showing that 

at least one other person is involved, Congress could consider creating a permissive presumption that if there is probable cause to 

believe that a non-U.S. Person is engaged in or preparing for international terrorist activities they can be considered an agent of a 

foreign power. However, if it ultimately becomes clear that the target is acting alone a criminal warrant should be sought. 

And I would be happy to address sections 214 and 207 in the 

question and answer period. 

[The prepared statement of Ms. Spaulding follows:]

PREPARED STATEMENT OF SUZANNE E. SPAULDING

Mr. Chairman, Ranking Member, and members of the committee, thank you for 

inviting me to participate in today’s oversight hearing on the implementation of certain sections of the USA PATRIOT Act and the Lone Wolf provision, all of which 

are subject to sunset provisions. I understand that this is just one of many hearings 

that the committee will be holding on the implementation of USA PATRIOT Act and 

I commend the committee for its commitment to undertaking a thorough examination of these significant provisions. 

I would like to begin my testimony today by emphasizing that I have spent over 

twenty years working on efforts to combat terrorism, starting in 1984 as Senior 

Counsel to Senator Arlen Specter of Pennsylvania, who introduced and guided to enactment the first law to provide extraterritorial jurisdiction over terrorist attacks 

against Americans abroad. Over the last two decades, in my work at the Central 

Intelligence Agency, at congressional intelligence committees, and as Executive DiVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\042605A\20875.000 HJUD1 PsN: 20875
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rector of two different commissions on terrorism and weapons of mass destruction, 

I have seen how the terrorist threat changed from one aptly characterized by Brian 

Jenkins famous remark that ‘‘terrorists want a lot of people watching, not a lot of 

people dead,’’ to one better described by former DCI Jim Woolsey’s observation that ‘‘the terrorists of today don’t want a seat at the table, they want to destroy the table 

and everyone sitting at it.’’ There is no question that today we face a determined 

set of adversaries bent on destroying American lives and our way of life. The 

counterterrorism imperative is to deny the terrorists both of these objectives. 

My testimony this morning attempts to assess how two key provisions, the Lone 

Wolf amendment and section 214, satisfy this counterterrorism imperative. 

LONE WOLF

The Foreign Intelligence Surveillance Act (FISA) is an extremely important national security tool. The problem with the Lone Wolf provision is that it needlessly 

undermines the policy and constitutional justification for this essential authority. 

The common wisdom—‘‘if it ain’t broke, don’t fix it’’—was ignored when Congress 

enacted the ‘‘lone wolf’’ amendment to the Foreign Intelligence Surveillance Act 

(FISA), allowing its use against an individual acting totally alone, with no connection to any foreign power, so long as they are ‘‘engaged in international terrorism 

or activities in preparation therefor.’’ I think it’s important for the committee to separate the true lone wolf from the 

case of someone who’s connection to a terrorist group is simply unclear. If there is 

a legitimate concern about the ability of the government to show the necessary connection to an international terrorist group—and I am not convinced there is—then 

there are better ways to address this concern than to extend FISA to someone that 

we know is acting entirely alone. 

Let’s start with the case of someone who’s connection to an international terrorist 

group may be unclear. I would urge the committee to carefully consider whether the 

government has made a compelling case that they need the lone wolf provision to 

address this concern. 

The lone wolf provision is often referred to as the ‘‘Moussaoui fix.’’ In fact, no ‘‘fix’’ was needed in the Moussaui case because it was not FISA’s requirements that prevented the FBI from gaining access to his computer back in August of 2001. The 

problem was the FBI’s misunderstanding of FISA. This conclusion is supported by 

the findings of the Joint Congressional Intelligence Committee Inquiry into the 9/

11 Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission. 

In order to obtain a FISA order authorizing access to Moussaoui’s computer, the 

FBI needed to show probable cause to believe that Moussaoui was acting ‘‘for or on 

behalf of a foreign power.’’ A foreign power is defined to include a group engaged 

in international terrorism. As the Senate Judiciary Committee Report explained, the 

FBI misunderstood the FISA requirement:

In addition to not understanding the probable cause standard, the (the Unit 

Chief) did not have a proper understanding of the legal definition of the ‘‘agent 

of a foreign power’’ requirement. Specifically, he was under the incorrect impression that the statute required a link to an already identified or ‘‘recognized’’

terrorist organization, an interpretation that the FBI and the supervisor himself 

admitted was incorrect.

FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, An Interim Report by Senators Patrick Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.

The Judiciary Committee Report, echoing the House Report accompanying FISA 

in 1978, explained that while ‘‘a group’’ is not defined in FISA, ‘‘in common parlance, and using other legal principles, including criminal conspiracy, a group consists of two or more person whether identified or not.’’ Moreover, remember that the 

FBI does not have to ‘‘prove’’ the target’s connection to a terrorist group. They must 

merely meet the ‘‘probable cause’’ standard, which, as the Judiciary Committee Report points out, does not mean ‘‘more likely than not’’ or ‘‘an over 51% chance,’’ but 

‘‘only the probability and not a prima facie showing.’’ The Report concluded that 

‘‘there appears to have been sufficient evidence in the possession of the FBI which 

satisfied the FISA requirements for the Moussaoui application’’ (p. 23). Thus, no 

‘‘fix’’ was required to search Moussaoui’s computer. 

Even if the FBI had not been able to meet the relatively low ‘‘probable cause’’

standard for showing that Moussaoui was working with at least one other person, 

the FBI could very likely have obtained a criminal warrant to search Moussaoui’s 

computer. They did not pursue that because they were concerned that doing so 

22

would preclude them from getting a FISA warrant later if they were turned down 

for the criminal warrant or ultimately did develop what they thought was sufficient 

information linking him to a terrorist group. This concern was based on the ‘‘primary purpose’’ test—viewed as precluding the use of FISA if the primary purpose 

was criminal prosecution rather than intelligence collection—which was subsequently changed in the USA PATRIOT Act. 

Now that this ‘‘primary purpose’’ test has been eliminated, and particularly in 

light of a subsequent opinion by the Foreign Intelligence Surveillance Court of Review, this would no longer be a concern and the government today could seek a 

criminal warrant without concern of precluding future use of FISA. 

Nor would the need to use sensitive information in the criminal warrant application be a compelling concern, since the criminal wiretap statute already imposes security requirements upon the judiciary in connection with crimes such as espionage, 

sabotage, and treason. In addition, classified information already is shared with 

judges in the context of the Classified Intelligence Procedures Act. 

One might argue that we should include the Lone Wolf option in FISA ‘‘just in case.’’ The problem with this reasoning is that it comes at a high cost. In addition 

to being unnecessary, the lone wolf provision—by extending FISA’s application to 

an individual acting entirely on their own—undermines the policy and constitutional justification for the entire FISA statute. 

When Congress enacted FISA, according to the Senate Report, it carefully limited 

its application in order ‘‘to ensure that the procedures established in [FISA] are reasonable in relation to legitimate foreign counterintelligence requirements and the 

protected rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist 

groups.’’ Senate Report 95–701, at 14–15 (emphasis added). 

The Congressional debate, and the court cases that informed and followed it, 

clearly reflect the sense that this limited exception from the normal criminal warrant requirements was justified only when dealing with foreign powers or their 

agents. Most recently, the FISA Court of Review (FISCR) cited the statute’s purpose, ‘‘to protect the nation against terrorists and espionage threats directed by foreign powers,’’ to conclude that FISA searches, while not clearly meeting ‘‘minimum 

Fourth Amendment warrant standards,’’ are nevertheless reasonable. 

The FISA exception to the Fourth Amendment warrant requirement was not 

based simply on a foreign nexus; it did not apply to every non-US person whose potentially dangerous activity transcended US borders. It was specifically limited to 

activities involving foreign powers. 

Individuals acting entirely on their own simply do not implicate the level of ‘‘foreign and military affairs’’ that justify the use of this extraordinary foreign intelligence tool. 

The requirement that the lone wolf must be ‘‘engaged in international terrorism 

or acts in preparation therefore’’ does not solve this problem. Nowhere in FISA’s definition of ‘‘international terrorism’’ is there any requirement for a connection to a 

foreign government or terrorist group. The definition of international terrorism 

merely requires a violent act intended to intimidate a civilian population or government that occurs totally outside the United States, or transcends national boundaries in terms of the means by which it is accomplished, the persons it appears intended to coerce or intimidate, or the locale in which the perpetrators operate or 

seek asylum. This would cover an individual inside the US who uses a gun that was 

purchased in Mexico to threaten a teacher in a misguided attempt to get the government to change its policies on mandatory testing in schools. 

Nor should we rely upon FISA judges to ensure that an overly broad standard 

is only applied in ways that are sensible, since the law makes clear that they must 

approve an application if the standards set forth in the statute are met. 

Congress should let the lone wolf provision sunset. If the government can make 

a compelling case that targets have escaped necessary surveillance because the government has been unable to meet the relatively low ‘‘probable cause’’ standard for 

showing that at least one other person is involved, then Congress could consider creating a permissive presumption that if there is probable cause to believe that a nonUS person is engaged in or preparing for international terrorist activities, they can 

be considered an agent of a foreign power. If it ultimately becomes clear that the 

target is acting alone, a criminal warrant should be sought. 

If nothing else, Congress should seriously reconsider its decision to ‘‘fix’’ FISA by 

slipping the ‘‘lone wolf’’ into the definition of an ‘‘agent of a foreign power.’’ By defining an individual acting totally alone, with no connection to any other individual, 

group, or government, as ‘‘an agent of a foreign power,’’ Congress adopted the logic 

of Humpty Dumpty, who declared: ‘‘When I use a word, it means just what I choose 

23

it to mean.’’ Unfortunately, this legislative legerdemain stretched the logic of this 

important statutory tool to a point that threatens its legitimacy. If its use against 

a true lone wolf is ever challenged in court, FISA, too, may have a great fall. 

SECTION 214

Section 214 expands the pen register and trap and trace authority under FISA. 

Prior to this expansion, these orders could be issued only if there was reason to believe that the telephone line or other communication device had been or was about 

to be used to communicate with an individual involved in international terrorism 

or spying that may violate US criminal laws or, in the case of an agent of a foreign 

power, communications that may concern international terrorism or spying that violate criminal laws. The new standard is significantly lower. Now these orders must 

be issued if it is merely ‘‘relevant’’ to ongoing investigation to protect against international terrorism or spying. This is justified as being consistent with the standard 

for pen registers and trap and trace authority in the criminal context, which requires that the communications be relevant to an ongoing criminal investigation. 

Without addressing the appropriateness of the criminal standard, let me try to 

explain why I am uncomfortable with the government’s argument that whatever 

powers it has in the ordinary criminal context, it should have for international terrorism investigations—an argument it has made to justify many post-9/11 expansions of power. 

The rules that apply in the criminal context require some kind of criminal predicate. Not necessarily that a crime has already been committed, but that the activity 

that is targeted would violate a criminal statute. Under our constitution, criminal 

activity must be well defined so that individuals are clearly on notice with regard 

to whether their actions may violate the law and thus justify government scrutiny. 

The language in section 214 and elsewhere drops all references to any criminal 

predicate, referring instead to ‘‘an investigation to protect against international terrorism.’’ These investigations can be based merely on ‘‘suspicious activity’’—something that has not yet been defined and which any one of us might engage in without even knowing it. The implications of this distinction are potentially profound 

and have not, I believe, been fully considered. 

Beyond this concern, it is also troubling that the only caveat in section 214 with 

respect to US persons is that the investigation cannot be based ‘‘solely’’ upon activities protected by the First Amendment to the Constitution. Doesn’t this mean that 

the non-First Amendment activity could be extremely minor or insignificant, since 

even that would take it out of the realm of relying ‘‘solely’’ on First Amendment activity? 

Concerns about the new standard in section 214 are similar to concerns expressed 

about the nearly identical standard provided for Section 215 of the PATRIOT Act, 

which provides authority for the FBI to compel anyone to produce any tangible 

thing in their possession as part of a terrorism investigation. I am certain that the 

committee will spend a great deal of time considering the range of concerns raised 

by section 215. Thus, I will not go into these concerns in detail but would urge the 

committee to keep section 214 in mind when it considers the standard in section 

215. 

The concerns with section 214 are often downplayed because it does not provide 

authority to intercept the ‘‘content’’ of the communications and, thus, the assumption is that there is no reasonable expectation of privacy. However, as you know, 

section 216 of the PATRIOT Act, which is not subject the sunset provisions, expanded pen register and trap and trace authority to activity on the Internet, where 

it is far more difficult to separate content from routing and addressing information. 

If a pen register served on an ISP requires disclosure of the URL, for example, that 

will almost always reveal the subject matter. Furthermore, if the government simply looks up the URL on the Internet, they can view the entire content of the page 

that you visited. This makes it more analogous to section 215’s authority for the FBI 

to find out what books you are reading, and this is another reason that the committee should reconsider section 214 when it considers section 215. 

CONCLUSION

Let me close by again commending the committee for its commitment to ensuring 

that the government has all appropriate and necessary tools at its disposal in this 

vitally important effort to counter the terrorist threat. We often say that Democracy 

is our strength. The unique relationship between government and the governed in 

a democracy is a key source of that strength. These hearings, and your willingness 

to carefully consider whether these provisions adopted in haste in a time of great 

fear should be renewed or modified, will contribute significantly to restoring the necVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\042605A\20875.000 HJUD1 PsN: 20875
24

essary public confidence that the government is protecting both American lives and 

America’s way of life. Thank you.

Mr. COBLE. Thank you. I commend each of you for not having 

violated the red light rule. You all came in under the wire. 

Folks, our Subcommittee has been blessed, generally, with the 

appearance of excellent witnesses. Today is no exception. I think 

we have a very fine panel before us. Mr. Baker, let me start with 

you. 

Why was it necessary to extend the surveillance from 90 days to 

120 days and the period of physical searches from 45 to 90 days? 

Mr. BAKER. Mr. Chairman, this was an effort to be reasonable in 

the sense that we were after—especially after 9/11, we were 

crushed, my office was crushed with the number of FISA applications that were going through. And so we were looking for ways to 

try to enable us to use our resources more effectively and more efficiently to protect the privacy of Americans. 

So what we did by proposing this was to focus, with respect to 

the 90-day to 120-day and 1-year provisions, to focus on cases involving non-U.S. Persons. And these non-U.S. Persons are individuals who act in the United States as officers or employees of a foreign power or act as a member of an international terrorist group. 

So it was our assessment that this was an area where the privacy 

interests at issue for Americans were lower, and, therefore, by allowing us to use resources on the cases where Americans were targeted, that was a better use of our resources. That was where the 

civil liberties issues were more focused and was a better use of our 

resources in general there. 

Mr. COBLE. So, now, assuming this extension is in fact enacted, 

could the Government go back to court and request an extension 

of the orders upon expiration of the time frame; that is, the 120 

or the 90 days? 

Mr. BAKER. Yes. The expiration—we would obtain authorization 

for one of these individuals in the first instance, for 120 days, and 

then the expiration—at the expiration of 120 days, we would seek 

an extension for 1 year. 

Mr. COBLE. Thank you, sir. 

Ms. Spaulding, you said you might want to talk about the other 

sections you did not allude to. So fire away. 

Ms. SPAULDING. Thank you, Mr. Chairman. With regard to section 207 and the duration of FISA orders, if the Government is indeed able to make a compelling case to the Committee that it is 

overly burdensome to file for extensions more frequently, my suggestion would be that at a minimum the Committee consider 

broadening the discretion of the FISA judge to enter an order for 

a shorter period of time under certain circumstances. 

There are undoubtedly situations which you might consider a 

slam dunk, to use an unfortunate term, where it is quite clear that 

you are going to be getting valuable information from a FISA surveillance. 

There are other circumstances in which it maybe is not quite so 

clear, in which a FISA judge ought to have the discretion, as they 

do apparently, in the extensions of an order, to enter it for up to 

the period of time. But, in the initial order, the language is not 

clear as to whether the FISA judge has this discretion to ask the 

25

Government to come in at an earlier point in time, and that would 

be my suggestion on 207. 

Mr. COBLE. I thank you. Ms. Buchanan, let me put a multifaceted question to you. How are pen registers typically used in 

criminal investigations, A, and does 214 authorize pen registers for 

intelligence investigations to obtain the content of a conversation, 

e-mail or phone call? And, finally, what kind of information does 

section 214 allow the Government to obtain? 

Ms. BUCHANAN. Pen registers are obtained in order to collect the 

information that is dialed from a telephone, the numbers that are 

dialed, the routing information. This is not content information. 

This type of information is collected by the Government to show 

connections between individuals, to develop probable cause, to further develop a case. 

These procedures are utilized early in an investigation. Section 

214 permits the Government to obtain this information in intelligence investigations as well as the criminal law. Neither under 

the criminal law or under section 214 can the Government collect 

content information. So that is not permissible under either statute. 

Mr. COBLE. Well, I think we will probably have a second round 

because we do not have that many Members here, and this is indeed important. So I will suspend, waiting for the second round. 

I recognize the gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on 

that. On the pen register, trap and trace warrants, you say you 

cannot get content. That is on the telephone conversations. How do 

e-mail and websites fare under that standard? 

Ms. BUCHANAN. It is really no different, Congressman Scott. Content information is not collected either under a pen register for a 

telephone or under a pen register of e-mail. Content is not collected. The statute——

Mr. SCOTT. What do you get on e-mail or websites? 

Ms. BUCHANAN. The statute is designed to collect just the routing 

information, who is talking to whom, not the content. The statute 

specifically deals——

Mr. SCOTT. What do you get on an e-mail? 

Ms. BUCHANAN. With an e-mail you just get the routing information, where the e-mail went, who the e-mail was addressed to, not 

the subject or not any of the content. The statute——

Mr. SCOTT. No subject line. 

Ms. BUCHANAN. No subject line. The statute anticipates that in 

some circumstances there could be inadvertent collection. The statute requires the Government to use the latest technology to prevent that from happening, and in the inadvertent situation when 

it does happen the Government is required to minimize this information and not to use it. 

Mr. SCOTT. What about websites? 

Ms. BUCHANAN. The same would apply to a website. This information——

Mr. SCOTT. Do you get to know which website was looked at? 

Ms. BUCHANAN. The information that is sought is where the email traffic was routed to. 

26

Mr. SCOTT. What about—website is not an e-mail. Can you find 

out what websites I have looked at? 

Ms. BUCHANAN. I think I am going to defer to Mr. Baker. 

Mr. BAKER. Well, this is the——

Mr. SCOTT. I just say that because a website, if you know what 

website it was you know what I was looking at. If there were dirty 

pictures that would be embarrassing. Can you find out whether or 

not I was looking at dirty pictures, or whether or not I just 

accessed AOL? 

Mr. BAKER. There are two issues here. The one issue is what 

does the technology allow us to do, and then what does the law 

allow us to do? 

In situations where the technology would not sort of by default 

restrict the—looking down at particular web pages at a particular 

website, there are internal Department of Justice procedures as 

recognized by the statute that are in place to try to address the situation that you are describing. 

So the law indicates that we are not allowed to collect the content, technology sometimes is not able to do that, to sort of defeat 

the content, and there are provisions in place in terms of policies 

to, in effect, minimize that kind of collection for—in other 

words——

Mr. SCOTT. Well, you recognize the fact that if you have—the 

website you look at has content implications, if there are certain 

health care websites, other kinds of websites, you can get some content just because you know what I have been reading. 

Mr. BAKER. Yes. But these are communications—well——

Mr. SCOTT. Or what books I bought off of amazon.com. When I 

go to a website and look at those books, the website, page by page, 

you can see what I have been doing, what I have been buying. 

Mr. BAKER. Well, I mean, business records, books that you purchased from a company, that is not something that is protected by 

the fourth amendment. And so different standards apply when the 

Government wants to obtain that kind of information. 

So the statute is written a particular way to prohibit the use of 

a pen register to get content. But, nevertheless, those materials 

and that example might not be protected by the fourth amendment. 

Mr. SCOTT. These FISA warrants, there is reference to not a U.S. 

Citizen. Can a U.S. Citizen be the target of a FISA wiretap? 

Mr. BAKER. Absolutely, yes. The law distinguishes and has different standards for when you want to—when your target is a nonU.S. Person or a foreign power and when your target is a U.S. Person. 

Mr. SCOTT. Well, target of the investigation and target of the 

wiretap——

Mr. BAKER. I am talking about the target of the surveillance in 

terms of a full content FISA. 

Mr. SCOTT. Okay. Well, the target of the wiretap, does that have 

to be the target of the investigation? Suppose you find that somebody has a lot of information about your target. Can you wiretap 

that phone to get information about the target? 

Mr. BAKER. The target is the person or the entity about whom 

you want to obtain information. So——

27

Mr. SCOTT. Suppose a U.S. Citizen has information, and would 

be—you find out that they are going to be talking about your target, and you can find out where they are going to be, get good information about your target. Can you wiretap—as part of the investigation of the target, can you wiretap somebody else to get information about your target? 

Mr. BAKER. No. Only if I could show that that person was an 

agent of a foreign power. I would have to separately show, or that 

the other person is using or about—that my target—what I have—

two things I have to show under FISA: that the target is an agent 

of a foreign power, and I have to establish that by probable cause, 

and the second thing, that the target is going to use the facilities 

or places of which the surveillance is going to be directed. So a telephone used by an innocent person that is not being used by the target is off limits unless I can make the statutory showing. 

Mr. SCOTT. So you can only listen into conversations that involve 

the target? 

Mr. BAKER. It depends what facility I am targeting. If I am 

surveilling the target’s home phone, let’s say, and the target—and 

that is my target, and I can be up on that telephone, if other individuals use that phone, then I can continue my collection, and I 

deal with that through court authorized and approved minimization procedures. 

This is exactly what happens in the title III arena as well. You 

come up on the telephone——

Mr. SCOTT. Well, that is the home phone. If you got this roving 

kind of thing and the bug is actually placed at his place where he 

volunteers a lot, like the National Democratic Headquarters, how 

do you listen in on other people’s conversations there? 

Mr. BAKER. Well, again, I am going to have to—I know that the 

roving positions are going to be the subject of a hearing on Thursday. But succinctly, all of the FISA provisions have within them 

these minimization procedures that I mentioned earlier, that minimize, that require the Government to minimize the acquisition, retention, and dissemination of the information that is collected. 

And those are—and the court orders us to follow those procedures. The court reviews those procedures and orders us to follow 

them. 

Mr. COBLE. I thank the gentleman. The gentlemen from Ohio is 

recognized for 5 minutes. 

Mr. CHABOT. Thank you, Mr. Chairman. Mr. Baker, prior to the 

enactment of the Lone Wolf amendment, how difficult was it for intelligence agencies to obtain wiretap orders for foreign terrorists 

who do not belong to any identified terrorist organizations? 

Mr. BAKER. Well, it was not authorized by the statute for us to 

be able to do that. So the answer is we could not do that. We had 

to find a connection between the target and a foreign power, an 

international terrorist group or a foreign government, so on. 

But it is worth mentioning that from the beginning, from 1978, 

an international terrorist group could consist of as few as two people. So the difference here really is going, at the minimum, or at 

the base level, I guess, from a group of two people to a group, if 

you will, of one person. 

28

Mr. CHABOT. And what must the FISA court find before issuing 

a surveillance order under the Lone Wolf provision? 

Mr. BAKER. That the Lone Wolf, that the target is an agent of 

a foreign power, meaning in this context that they are a non-U.S. 

Person, that is critical to remember, non-U.S. Person, who engages 

in international terrorism or activities in preparation therefor. So 

this is the Lone Wolf who—an individual who could, I mean, in sort 

of the doomsday scenario, the things that we are most worried 

about, an individual who might have access to some kind of a 

weapon of mass destruction, chemical, biological, nuclear, or radiological weapon, attempt to use a device such as that in the United 

States, but have no known or apparent connection to another individual or a group or a foreign government. 

Mr. CHABOT. And do you believe that real or apparent Lone Wolf 

terrorists could threaten the safety and security of the American 

people? 

Mr. BAKER. Absolutely. As I have just described, that is what we 

are very worried about. And it seems to me that, I mean, as the 

FISA court of review said back in 2002, FISA is constitutional because the searches it authorizes are reasonable. 

And it seems to me that targeting an individual such as the one 

I just described, bringing in a weapon of mass destruction into the 

United States, under the fourth amendment that is reasonable, and 

I think therefore that this provision of FISA is certainly constitutional. 

Mr. CHABOT. Now, critics of the Lone Wolf provision argue it is 

a dangerous expansion of authority allowing the application of 

FISA to individuals lacking any connection to foreign powers. 

Do you agree with Mr. Woods who counters this claim on 

patriotdebates.com when he says, quote, the language actually enacted, however, integrates a definition of international terrorism 

that preserves a sufficiently strong foreign nexus requirement, unquote? 

And if so, could you explain that nexus and why it is important. 

Mr. BAKER. Yes, I agree with that comment. Again, to be an 

agent of a foreign power under this provision, you have to first be 

a non-U.S. Person and you have to be engaged in international terrorism activities. International terrorism is a defined term under 

the statute. It includes or covers or applies only to, said differently, 

violent acts or acts dangerous to human life that are a violation of 

the criminal laws of the United States or would be if committed 

here, that have a coercive or intimidation factor associated with 

them, and occur outside the United States or transcend national 

boundaries, and the perpetrators, the locale that they are going to 

be taking place in, or the places where the target is going to seek 

asylum. 

And so there is a nexus to international terrorism. You cannot 

use the Lone Wolf provision to conduct electronic surveillance of a 

U.S. Person who is engaged in domestic terrorism in the United 

States. It doesn’t apply to that kind of situation. 

Mr. CHABOT. Okay. And who determines whether an individual 

will be classified as a Lone Wolf and what are the criteria used in 

making such a determination? 

29

Mr. BAKER. Well, at the end of the day it is the FISA court. We 

have to go before the FISA court before we can get one of those approvals. Prior to that, the Attorney General must sign every application that would use the Lone Wolf provision. Before that, you 

would have to have a certification from someone, such as the Director of the FBI or another high ranking Government official with 

national security responsibilities. And my office reviews that, the 

FBI reviews that and so on. 

And, again, the legal foundation is that there is probable cause 

to believe that the target is an agent of a foreign power under the 

standard I just articulated, and that they are using or are about 

to use the facilities at which the surveillance will be directed. 

Mr. CHABOT. Finally, has provision alone resulted in a dramatic 

increase in the use of FISA warrants in situations that do not justify such extraordinary Government power? 

Mr. BAKER. Well, I would—I mean I would say, first of all, the 

number of times that we have used this I believe is still classified, 

so I can’t discuss that today. 

But I would say that, I mean certainly, whenever—if we can 

meet this standard, I think that surveillance of such a person 

would be justified and would be warranted. 

Mr. CHABOT. Thank you. I know that the light is ready to come 

on. So I yield back the balance of my time. 

Mr. COBLE. The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I remember Attorney 

Buchanan pointing out how helpful some of the provisions here in 

the PATRIOT Act were. But the convictions were only criminal convictions. They had nothing to do with terrorism. 

Ms. BUCHANAN. That is correct, Mr. Conyers. I was demonstrating how the pen register is used in a criminal case, because, 

of course, those cases are not classified and the pen register is used 

in the same manner under FISA. 

So I was demonstrating how it can collect noncontent information to show connections between individuals and how that information can be used to later build upon the investigation and ultimately result in convictions. 

Mr. CONYERS. Have there ever been any terrorist convictions in 

the United States? 

Ms. BUCHANAN. Well, we just had one last week. 

Mr. CONYERS. Well, you had a plea of guilty. 

Ms. BUCHANAN. Well, that is a conviction. 

Mr. CONYERS. Congratulations. Any others? 

Mr. BAKER. Well, I think——

Mr. CONYERS. Can you think of any others, Counsel? 

Ms. SPAULDING. No. 

Mr. CONYERS. Can you? I am just inquiring. 

Mr. BAKER. Mr. Congressman, you are looking for trials, actually 

where someone was convicted following a trial is what I am gathering from your question. 

Mr. CONYERS. Well, there has only been one plea of guilty, and 

no trials, according to what I know. 

Mr. BAKER. Well, I can’t remember off the top of my head every 

conviction. But we have the cases up in Buffalo, the Lackawanna 

cases, we have the cases in Portland, we have the cases in Virginia 

30

as well, I think the Virginia cases, the so-called Virginia Jihad 

Group. Those I believe were convictions following a trial before a 

jury. So I think the answer is yes. 

Mr. CONYERS. All right. Let me ask Attorney Spaulding. I am 

trying to shape this notion, the feeling that I have is that the way 

these things are written and interpreted that the intelligence community can do just about anything they want anyway. 

Can you make me feel better about that and get that out of my 

system, and really believe that—I mean, I would like to imagine a 

situation where they are only looking for the phone numbers that 

you are calling and who you are calling, but they don’t want to 

hear the substance, and they are sitting up there, and I am trying 

to really keep a straight face and believe that they are not going 

to listen to substance—I mean, what—this whole area is so general 

and vague. I remember the former Attorney General refusing court 

orders flat out. They asked him, I think, to produce something. He 

said no, he is just not doing it. They can do whatever they want. 

Ms. SPAULDING. My sense, from working in the intelligence community and on the staff of the oversight Committees, is that the 

intelligence community takes its legal obligations very seriously, 

that in fact they endeavor to stay on the right side of U.S. Law. 

Needless to say, espionage is a violation of laws of virtually every 

country in the world. So they are violating law when they operate 

overseas. But they take very seriously their obligation to follow 

U.S. Law. 

But it is also the case that law enforcement and intelligence communities will use all of the authority that the law gives them, and 

they will use it to its fullest to accomplish their mission, which is 

why it is so important to make sure that the law is clear and appropriate, not overly broad and not vague. 

The concern with respect to the potential for section 214 to provide access to content that was illustrated by Mr. Scott’s questions, 

particularly most acute in the Internet context, is a legitimate concern. And it is why I think that it ought to be, that section 214 

ought to be reconsidered by this Committee when it looks at section 

215. The standards are very similar, and I would hope that 215 

will be discussed in that same context. 

Attorney Buchanan talked about the standard is parallel to that 

in the criminal context, ‘‘relevant to a criminal investigation for 

criminal context, and relevant to an international terrorism’’ or investigation to protect against terrorism in the FISA context, and I 

would simply urge the Committee to carefully consider the import 

of that distinction. 

Mr. CONYERS. Last question. If Chairman Coble in his usual fairness were to allow us to drop one of these three, Lone Wolf, 214, 

207, and we had a quick conference, wouldn’t you agree that the 

Lone Wolf provision is the most troublesome? 

Ms. SPAULDING. I would, yes. 

Mr. CONYERS. Thank you. 

Mr. COBLE. The gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. Ms. Spaulding, could 

you comment on the testimony by Mr. Baker, Mr. Baker and his 

analysis of the necessity of the Lone Wolf provision? 

Ms. SPAULDING. Yes. 

31

Mr. DELAHUNT. I sense a nuanced disagreement. And then I will 

ask you, Mr. Baker, to comment on her response. 

Ms. SPAULDING. I think it’s important. I believe that FISA—the 

justification for FISA is not based on the dangerousness of the 

threat. Clearly a domestic terrorist can wreak just as much havoc 

as an individual who has transcended international borders in the 

means by which they carry out their act. So I don’t think FISA is 

just based on that ground. In fact, what the courts and the Congress have said is that FISA is based on a compelling Government 

need that exists in the context of an international group; that exists in the context where you’ve got more than one player so that 

you’re likely to get something out of listening to this conversation, 

and because there is more than one player and it involves an international group, the challenges for the collection of that intelligence 

and the need for continued secrecy because there are other players 

involved are what provide the justification of FISA, and this is totally lacking in the context of an individual acting solely on their 

own. And I think that is a very important distinction because you 

get caught up in the nature of the threat. 

Mr. BAKER. Again, Congressman, I think that the basic answer 

is that the searches and surveillances that FISA authorizes are 

constitutional because they are reasonable. And it’s our assessment 

that focusing on somebody like a lone wolf, somebody——

Mr. DELAHUNT. Let me interrupt you for a moment. You use the 

hypothetical of an individual coming in with weapons of mass destruction. I’m talking about, you know,—I understand the concerns. 

But by implication, doesn’t that qualify as—by inference, isn’t there 

a reasonable inference that there is a group, that there is a conspiracy of some sort just simply because of the acquisition, if you 

will, the transmission? I’m sure that a weapon of mass destruction 

just doesn’t appear out of thin air on someone’s door. 

Again, I think, you know, that was the point that I think I heard 

earlier from Ms. Spaulding. You know, I think there are other 

means, other than the provision itself to achieve the result you’re 

looking for. 

Mr. BAKER. In a situation such as we’re describing here, time 

will be—if we are faced with that, time will be of the essence. 

Mr. DELAHUNT. You know, this whole time issue continues rising 

like there is an immediacy to it. If there is in the possession of the 

Government and investigatory agencies, I can’t imagine a scenario 

where there is not implicated a co-conspirator. I simply can’t. 

Mr. BAKER. You might not be able to imagine that, but we have 

to have some evidence to establish that before the FISA court. 

Mr. DELAHUNT. I understand that. But I would think a FISA 

judge sitting on, you know, being presented an affidavit—included 

in the affidavit would be some reference to another individual. I 

mean, there has to be a minimal level of evidence there. 

Mr. BAKER. Whether or not I could come up with as a creative 

lawyer and explain to the FISA court reasonable instances and so 

on in a particular factual situation is one thing. But the question 

is, doesn’t it make more sense to have a clear standard already in 

the law that doesn’t force us when we are under the gun in terms 

of time pressure to try to concoct something that may not fly. 

32

Mr. DELAHUNT. This is always going to be the balancing act that, 

you know, is implicated in our Constitution. 

Ms. Spaulding. 

Ms. SPAULDING. And there is always the option of going for a 

title III criminal warrant if ultimately you are unable to show a 

connection with any other person. The hardest thing about frustrating a lone wolf terrorist attack is not accessing their communications but finding the lone wolf. 

Mr. BAKER. FISA is a good tool to use in these situations because 

the information we have about this target, this lone wolf may be 

from a sensitive source. And we don’t want to necessarily put that 

source at issue in a criminal proceeding. We want to use the protections that FISA has which are constitutional. 

Mr. DELAHUNT. Under a title III proceeding, you could still, I 

presume, request the necessary protections to protect that source. 

I mean that is not unheard of. 

Mr. BAKER. There are mechanisms, but they’re not as good. And 

Congress, in 1978, assessed that there was a better way to try to 

protect the national security sources as well as the methods we are 

going to use against this type of individual. If we have somebody——

Mr. DELAHUNT. There’s always—the burden always has to be 

placed on the Government if we are going to protect the liberty and 

our freedoms. And I guess the question is, is the measure, is the 

quantum of the burden sufficient to make it so difficult that we 

can’t achieve the goal of protecting our national security. 

Mr. BAKER. We live with that issue in terms of balancing security versus liberty every single day in my office. And the folks who 

work for me diligently try to achieve both of those goals at the 

same time, and it is a difficult job. But what I would urge you is 

to give us the tools where there is clarity, where there is sufficient 

protection on both sides of that. 

And again, as I went through, the difference between a group 

of—international terrorist group of two people versus one person is 

not that great, and I don’t think it is of constitutional significance. 

And so I think you should feel comfortable in allowing this provision to continue. 

Mr. COBLE. We will start a second round now. Mr. Baker and 

Ms. Spaulding have been examined more thoroughly, Ms. Buchanan. I don’t want to ignore you, so I’m going to start with you. 

How does providing immunity to those who assist law enforcement 

with a FISA order help intelligence investigations and the war on 

terrorism? 

Ms. BUCHANAN. Under the criminal law, we have had a provision 

in the law which provides immunity to those who assist law enforcement with obtaining pen registers and trap and trace orders. 

What I mean by assist, those individuals who are working with the 

communications company who installed the equipment and those 

individuals are immune from civil suit as a result of their participation. We ought to have that same immunity in the FISA statute 

to protect individuals who assist in the installation and application 

for pen register or trap and trace. That is what the PATRIOT Act 

gives us. 

33

Mr. COBLE. Some are now arguing that a higher standard should 

be used for pen registers. Are you familiar with any of these proposals and do you agree with them, A? And if you would, Ms. Buchanan, explain what the relevant standard requires and why it is 

applied to a pen register or trap and trace order rather than probable cause standard. 

Ms. BUCHANAN. The standard is and should be relevance with respect to this type of information. This information that is collected 

is not a search under the fourth amendment. Individuals have no 

expectation of privacy in this information. And that is why the 

standard is set at a lower standard, which is relevance. I think 

there has been a little confusion in the questioning this morning 

about what is collected with the pen register versus a wiretap. 

With the pen register, the device is simply collecting the telephone numbers, the routing information, it is not collecting the 

substance of any of the communications. In fact, the equipment 

doesn’t have that capability. So that is not what is the subject of 

collection. And that is why the standard is set at relevance. With 

the relevance standard, the Government simply alleges that the information would be related or connected to an ongoing investigation, that it is likely to produce other information. That is the 

standard. And it is much lower than probable cause. 

When you look at a probable cause standard under the criminal 

law, you are dealing with information that has a higher expectation 

of privacy and that is why the law requires a probable cause standard to collect information where there is a greater expectation of 

privacy. And because they are very different, that is why there are 

different standards recognized under our law today. 

Mr. COBLE. Reverting to content, Mr. Baker, if the court determines that content was collected and used by the Government 

under 214, what would the court likely do? 

Mr. BAKER. In that case, you would have a situation where we 

would have disobeyed a court order, and I would gather they would 

want to know was this an intentional violation? Was it inadvertent? How did it happen, what procedures were in place to make 

sure it doesn’t happen again, who’s responsible, what part of the 

Government is going to conduct an investigation. We have, in the 

Department of Justice, an inspector general. We have an Office of 

Professional Responsibility, both at main Justice and at the FBI. 

You’ve got an inspections division at the FBI and multiple entities 

within the Government that the court could look to to find out the 

facts and take steps to address it. 

I mean, there is this one case from several years ago where the 

court had concerns about representations by an agent in some 

pleadings and the court barred that person from appearing before 

the court again. The court is quite vigilant about ensuring that 

what’s happening is consistent with the law. 

Mr. COBLE. Ms. Spaulding, do you want to visit the sections you 

have not had a chance to emphasize? 

Ms. SPAULDING. Thank you, Mr. Chairman. I would like to talk 

about section 214 and this relevancy standard. The question is relevant to what. In the criminal context, it is relevant to a criminal 

investigation. In section 214, it’s relevant to an investigation to 

protect against international terrorism. It drops all references to 

34

any criminal predicate. Under our Constitution, crimes must be 

very clearly defined so that Americans are clearly on notice whether their activities might violate the law and thereby invite Government scrutiny. 

Investigations to protect against terrorism can be based merely 

on suspicious activity, which is undefined, and any one of us might 

be engaging in it without even knowing it. The implications of this, 

I think, are very profound and have not been thoroughly examined. 

Mr. COBLE. Ms. Buchanan, I will end with you. 

Ms. BUCHANAN. The American people have every right to be protected against international terrorism as they do against criminal 

violations. The standard is the same and should be the same because the dangers are equal if not greater in the terrorism arena. 

Mr. COBLE. Mr. Baker, very quickly. 

Mr. BAKER. The definition of international terrorism includes a 

nexus to criminal law. So that is in there when you are dealing 

with an international terrorism investigation. 

Mr. COBLE. I thank you. The gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. One of the problems we 

have had with some of these provisions is that people when they 

talk about them say loudly and clearly terrorism and then mumble 

something about foreign intelligence. Foreign intelligence doesn’t 

have anything to do with crimes. It is just spying on people. You 

could be talking about anything involving conduct of foreign affairs, 

which may not have any criminal connection. Now am I right on 

the lone wolf provision, you have to have a terrorism connection 

not just vague foreign policy? 

Mr. BAKER. You have to have a terrorism connection. You could 

not be an agent of a foreign power unless you were engaging in 

international terrorism or activities in preparation therefor. 

Mr. SCOTT. For the purpose of a lone wolf? 

Mr. BAKER. Correct. 

Mr. SCOTT. For the other purposes, you could be the agent of a 

foreign government having nothing to do with terrorism or crimes, 

you could just be negotiating trade deals and stuff like that? 

Mr. BAKER. Without commenting on the specifics what we would 

be acquiring, you could be an agent of a foreign power if you are 

a non-U.S. person who acts as such in the United States and you’re 

an officer or employee of a foreign government. 

Mr. SCOTT. And have foreign affairs type information nothing to 

do with criminal activity? 

Mr. BAKER. That’s correct. 

Mr. SCOTT. That’s what I said. People will loudly and clearly say 

terrorism and then mumble something about foreign intelligence, 

suggesting that we are talking about terrorism. We are talking 

about many of these circumstances, things that have nothing to do 

with crimes, terrorism or anything else, just foreign intelligence. 

Mr. BAKER. That’s correct. 

Mr. SCOTT. But for the lone wolf, it has to be terrorism connected. What about the pen and trap and trace? 

Mr. BAKER. You have to have a showing—make a showing in the 

application that the information that’s likely to be obtained is either foreign intelligence information not concerning a U.S. person 

35

or is relevant to an investigation to protect against international 

terrorism or clandestine intelligence activities. 

Mr. SCOTT. You can get this pen and trap and trace with things 

that are not criminally related or crime or terrorism-related? It can 

be foreign intelligence related? 

Mr. BAKER. Foreign intelligence is a defined term in the statute. 

Mr. SCOTT. Which includes terrorism and weapons of mass destruction and conduct of foreign affairs, which could be about anything. So I’m talking about it can involve just about anything part 

of it. We know the terrorism is in there. What else is in there? 

Mr. BAKER. As you suggested, definitely includes foreign affairs. 

That’s one of the prongs of foreign intelligence. 

Mr. SCOTT. We’re talking about getting this trap and trace on 

foreign intelligence? 

Mr. BAKER. Not concerning a U.S. person. 

Mr. SCOTT. And not concerning any crimes and not concerning 

any terrorism? 

Mr. BAKER. Potentially. That’s correct. Because Congress wanted 

to regulate all of the Government’s——

Mr. SCOTT. The reason I say this is we scare people to death, and 

think we are talking only weapons of mass destruction when, in 

fact, we are talking about information that could have nothing to 

do with any criminal law at all. 

Mr. BAKER. In a situation not involving a U.S. person. 

Mr. SCOTT. In the United States? 

Mr. BAKER. That’s correct. 

Mr. SCOTT. The predicate for this FISA wiretap and this FISA 

trap and trace could be the desire to get information about negotiating with another country on conduct of foreign affairs that have 

nothing to do with the terrorism or crimes or anything else that 

would endanger people in the United States? 

Mr. BAKER. Well, it’s always focused on the foreign relations of 

the United States vis-a`-vis——

Mr. SCOTT. Which could include things that are not terrorism or 

crime related? You can start these wire taps off with ‘‘foreign intelligence,’’ which is conduct of foreign affairs, but with the lone wolf, 

you have to be in terrorism. For the other, trap and trace, it could 

be any other thing. What about wire tapping outside of the United 

States proper? Can CIA agents and all that wiretap outside of the 

United States? Are we even talking about that? 

Mr. BAKER. FISA governs surveillance and physical searches inside the United States. 

Mr. SCOTT. Is it quicker to get a FISA wiretap than a criminal 

wiretap? 

Mr. BAKER. I don’t know the statistics on the criminal wiretaps. 

But there are provisions in FISA that allow us for start to collection in an emergency situation based upon the authorization of the 

Attorney General. In an emergency circumstances, there are mechanisms to address that. There is a mechanism similar to that in 

the title III area. 

Mr. SCOTT. And if you are in Colorado, it’s quicker to come to 

Washington, D.C. To go before a FISA court than it is a magistrate 

in Colorado? 

36

Mr. BAKER. I don’t know about that. Faced with a situation like 

that, we obviously have secure telephones. The FBI field office in 

Colorado would call headquarters and they would call us at the 

main justice. 

Mr. SCOTT. Rather than just running over to the magistrate and 

get a quick warrant? If you have probable cause that a crime is 

being committed and can get information from a wiretap, why 

wouldn’t you get a criminal warrant? 

Mr. BAKER. It depends on what you are investigating and what 

you’re focused on and what tools you want to use that are at issue 

and what sources of information you have and what protections you 

think that the various statutes are going to give you with respect 

to these various areas. And so the FBI agents look at the investigation they’ve got and make an assessment about the various tools 

they have available to them and try to decide what to use. 

Mr. SCOTT. We’ve heard about people for whom you have evidence that they are gathering up explosives about to blow something up. What’s the barrier to getting a title III wiretap? 

Mr. BAKER. Again, these are very fact specific situations. But 

FISA was built by Congress to address these kinds of threats to the 

national security. And it includes definitions, time periods, protections against disclosure of information, and other provisions, including minimization procedures that fit better in these situations 

than title III does necessarily. That’s why it would be used in a 

particular situation versus a title III. 

Mr. COBLE. Gentleman’s time has expired. The gentleman from 

Massachusetts. 

Mr. DELAHUNT. Just an observation to the Chair, Mr. Coble. We 

have been having some excellent hearings. And all of the panels, 

I think, have been very helpful. I guess my question to you my 

friend. We are going at a fairly accelerated pace. And much of the 

information that we’re getting, I would suggest, needs some reflection. I understand we’re having another hearing this week—two 

more. Does the Chair have a time table for when we might consider 

a resolution or a bill? Could you give us some guidance? 

Mr. COBLE. If the gentleman would yield. I say to the gentleman, 

this accelerated schedule is not determined by me. 

Mr. DELAHUNT. I suspected that. If the Chair knows, do we 

have—is there a calendar for when the Subcommittee itself might 

consider a proposal? 

Mr. COBLE. If the gentleman would yield further to me. Not 

known to me. 

Mr. DELAHUNT. Not known to you. 

Mr. COBLE. No fixed calendar. 

Mr. DELAHUNT. Because we are really rolling along here and I 

would make a request to the Chair and I know you’re a diligent 

worker, but many of us do not, you know, have your experience. 

And maybe if we could slow the pace down in terms of the calendar 

itself, it might provide us an opportunity to consult with many of 

the witnesses that have already appeared before us just to provide 

us with an opportunity to become even more informed. The Chair 

might consider passing that request on up wherever it may go, but 

I would hope that that the Chair would consider that. 

37

Mr. COBLE. If the gentleman would yield again. I would convey 

that and thank the gentleman from Massachusetts. 

Mr. DELAHUNT. I don’t think I have—I do have another question. 

I’m reading one of these Hill papers here about the nominee for the 

United Nations, and there appears to be a question regarding his 

inquiry about the names of American citizens on 10 different intercepts. And I’m not going to ask you specifically about that, but I 

guess this goes along with the question that was posed by Mr. 

Scott. 

In terms of protection of non-U.S. persons who are referenced in 

the course of a surveillance, who has access to that information? 

Would somebody from the Department of State have access to that 

information under a FISA order or would that simply—only designated officials have access to that information? 

Mr. Baker? 

Mr. BAKER. Again, you have to keep in mind that every court 

order is different—they are all different, but they all include minimization procedures. So there are restrictions on the acquisition, 

retention, and dissemination of U.S. person communications. And 

that’s the focus, to protect the privacy of Americans. With respect 

to who has access, if you have an FBI surveillance, the FBI in the 

field office conducts a review of the material and decides what information is foreign intelligence information, what information is 

not. And then it can write summaries or do other transcripts. 

Mr. DELAHUNT. I understand that. But let me—if an official, let’s 

say hypothetically, Mr. Bowl was the deputy Under Secretary for 

whatever in the Department of State or the Department of Defense, whatever, and he communicated—presumably the Attorney 

General of the United States has access to this information under 

a FISA court order, because presumably it’s written in a way that 

would allow that, the Attorney General of the United States and/

or his designee, would a high ranking official in another department have access to that information, i.e., the name of the American citizen? 

Mr. BAKER. Not directly. If they had some reason to believe there 

was some information out there and had a basis to ask for it, they 

would submit a request to the agency they think has the information and the agency would have to make an assessment whether 

disclosure of that information to that person would be consistent 

with the minimization procedures. And there are statutory restrictions on the use of FISA information as well. 

Mr. DELAHUNT. I understand statutory restrictions. This is simply accessing information, however. Would there be, for example, 

the need to return before the FISA court to seek a—if such a request was made, would the—there has been any history of this, 

would one of—if there was doubt as to whether the request fell 

within the ambit of the minimization that was issued pursuant to 

the court order, would it be reasonable to infer that there would 

be an additional appearance before the FISA court to clarify? 

Mr. BAKER. It could be. The FISA court carefully monitors the 

minimization of U.S. Person communications. 

Mr. DELAHUNT. In the report back to FISA, would that information be disclosed, the individuals who did have—who had access to 

that information? 

38

Mr. BAKER. Not on a regular basis. Not necessarily, no. But there 

are other mechanisms for that. And what would happen, the agency that requested, if they didn’t think it fell squarely within the 

minimization procedures, would seek advice from our office, and we 

would make a decision as to whether we felt comfortable or not 

doing it. 

Mr. DELAHUNT. Have you ever had those kind of requests? 

Mr. BAKER. I can’t think of one off the top of my head. It’s an 

expectation that sometimes people will read a report that might 

reference a U.S. person and might want to know the name of that 

person and there are established procedures to deal with that situation and approval levels and so on that you go through. 

Mr. COBLE. I thank the gentleman. Thank you all for being here 

and thank you for those in the audience. We live in a chaotic time, 

as you all know, folks. I don’t think we ever want to see a repeat 

of 9/11 when those bastards came over here, pardon my 

vernacular—referring to the murderers, of course. On the other 

hand, I don’t think any one of us wants to compromise our liberties. It’s a delicate line we’re negotiating. And Mr. Baker, since 

you are in my direct line of fire, let me go to you. Again, thinking 

aloud, the President has the authority grounded in the Constitution to protect our Nation’s security. Based on that responsibility, 

what did the Government do prior to 1978, prior to FISA, A? And 

why was FISA enacted? 

Mr. BAKER. Prior to the enactment of FISA, as I understand it, 

sort of the beginning of electronic communications, collection of 

those kinds of communications for national security purposes was 

done pursuant to the President’s inherent authority under the Constitution to collect foreign intelligence without a warrant. It was 

done from the beginning up until 1978 for those purposes without 

a warrant. 

And it was, as a result of, frankly, abuses of that authority by 

the executive branch that came to light in the 1970’s that resulted 

in, among other things, the enactment of FISA in 1978. It takes us 

from a regime where there was no congressional legislation to a regime that Congress, as I said earlier, puts into place, clear standards for who can be a legitimate target of this kind of collection, 

requirements to protect the privacy of Americans and the minimization procedures and accountability for the individuals who decide to engage in one of these surveillances and to make sure it is 

done for a legitimate national security purpose. 

Mr. COBLE. We are going to visit this PATRIOT Act time and 

again, and as Mr. Delahunt said probably in an accelerated mode. 

Thank you, Mr. Scott, Mr. Delahunt, Mr. Conyers and Mr. Chabot, 

for attending as well. The Subcommittee very much appreciates 

your contribution. In order to ensure a full record and adequate 

consideration of this important issue, the record will be left open 

for additional submissions for 7 days. Also, any written questions 

that a Member wants to submit should be submitted within this 

same 7-day period. This concludes the oversight hearing on the Implementation of the USA PATRIOT Act: Foreign Intelligence Surveillance Act (FISA), part one. Thank you for your cooperation and 

the Subcommittee stands adjourned. 

[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.] 

(39)

IMPLEMENTATION OF THE USA PATRIOT 

ACT: SECTIONS OF THE ACT THAT ADDRESS 

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

Part II 

THURSDAY, APRIL 28, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met pursuant to call, at 9:30 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. Good to have 

all of you with us today. 

The Subcommittee on Crime, Terrorism, and Homeland Security 

will conduct two hearings on the USA PATRIOT Act. At this morning’s hearings, the Subcommittee will examine section 206, the roving wiretap provision, and section 215, the business records provision. Both section 206 and 215 amend the Foreign Intelligence Surveillance Act of 1978, known as FISA, and both expire on December 31, 2005. These two sections are among the most controversial. 

I believe much of the controversy is due to misinformation about 

the provisions, and I hope this hearing will clarify exactly what the 

law does. 

While I expect an in-depth and lively discussion on these issues, 

I would like to point out a few things we’ve recently learned 

through our hearings and oversight. 

We know, though I am not sure the public is aware of this, that 

section 215, the so-called library provision, does not even mention 

the word ‘‘library.’’ It covers business records. 

And yes, section 215 could be used to obtain business records 

from a library, but we also know from the Attorney General’s oral 

testimony to this committee on April 6, that section 215 has never 

been used to obtain business records from a library. Nor has section 215 been used to obtain bookstore records, medical records, or 

gun sale records. In fact, no evidence has been presented to this 

Subcommittee or to the Department of Justice’s Inspector General 

of any abuse of 215 for any use. 

We also know from the Department of Justice response to questions from this Subcommittee and full committee that terrorists are 

40

indeed using our libraries so that at some point section 215 may 

be needed there. 

Section 206 amends the wiretap provision under the Foreign Intelligence Surveillance Act to allow the wiretap order to follow the 

person instead of covering a communication facility. Thus, when a 

terrorist uses a cell phone, then throws it away, uses another 

phone, throws it away, law enforcement does not have to get a new 

order each time. 

We also know that this section has been used 49 times, and, according to the Attorney General, has been effective in monitoring 

international terrorists and spies. 

Now, folks when I said there’s a lot of misinformation surrounding these provisions, a lot people—well, strike that. Maybe I 

shouldn’t say a lot people—some people. In fact, some have even 

talked to me. 

They portray it in this manner: A couple FBI agents riding 

around town. Well, let’s go get a couple burgers and a milkshake, 

and then maybe stop by the FISA Court. Pick up a couple roving 

wiretaps and maybe a couple 215 orders and—now, folks, I don’t 

mean this to be cute, because folks back home have said this to me, 

and then maybe go to the library. See what we can come up with. 

Maybe share with our friends and neighbors some of the information we’ve found. Folks, that’s far a field from what happens. It’s 

difficult to obtain this, and I want the public to know that. 

Having said that, I will now—I now look forward to hearing from 

my good friend, the Ranking Member, the gentleman from—the 

distinguished gentleman from Virginia, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Don’t give them any 

ideas. 

Thank you for holding this hearing on section 216 and 215 of the 

USA PATRIOT Act. These are some of the most controversial sections of the bill that will come up for renewal. 

They’re controversial because of the extraordinary powers of virtually—virtually unchecked powers that allow Government to use 

the—to allow the Government to use to invade the privacy of individuals. Section 215 is particularly disturbing, given its breadth of 

authority, especially because it allows law enforcement officers to 

obtain private records with no more than a representation that it 

is relevant to foreign intelligence. 

And even though section 505 of the PATRIOT Act is not under 

sunset, you really can’t talk about 215 without discussing the same 

problems with 505. 505 allows a host of private records and information to be obtained through the issuance by line level officers of 

National Security Letters on mere representation that they are relevant to an investigation of foreign intelligence. 

There need to be no crime, no probable cause of a crime, no reason to believe that there’s a crime, no credible or particular facts, 

just representation in the case of a 215 and the FISA Court has 

no choice but to issue the order for the production of records. 

In the case of the National Security Letters, there’s no court 

issuance or oversight, just a line officer’s issuance of the letter in 

terms of the requirements of law. 

Now, all of this is done in secret, and no explicit right to challenge the orders with a permanent gag order on the keepers’ of the 

41

records, even to the extent apparently of consulting with an attorney. With our liberalized information sharing rules, this information can be distributed all over town to various agencies and this 

means your neighbors who may be law enforcement agents or Defense Department officials, may know a lot more about you private 

medical, organizational affiliation, reading or video viewing habits 

than you ever imagined. 

Now, with respect to section 206, the FISA roving wiretaps, I’ve 

often noted the difficulties that I see. Again, under the law no 

crime need even be alleged, and under the John Doe wiretap no 

person or particular device need to be shown, and in either case, 

no effort has been made to ascertain whether or not the target is 

actually using the device before communications are actually intercepted. 

And again, all of this is in secret; secret court with limited oversight and reporting requirements when compared to the criminal 

wiretap process. And the Department of Justice witnesses often use 

the powers extended on the criminal side to justify the same powers on the FISA side. 

However, they don’t call for the same oversight and reporting requirements as a criminal warrant, and I think we need to pay a 

lot more attention to as we consider renewing these powers. 

So, Mr. Chairman, I look forward to the testimony of our witnesses for enlightenment on why we should consider renewing 

these extraordinary powers and, if so, under what circumstances 

and conditions, and I look forward to working with you as we try 

to implement those recommendations. 

Mr. COBLE. I thank the gentleman. We’ve been joined by the 

Ranking Member of the Full Committee, the distinguished gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Good morning, Chairman Coble. 

Mr. COBLE. Good morning, sir. 

Mr. CONYERS. And Members of the Committee welcome the 

panel. And this is one of the important Subcommittee hearings in 

which this review of the PATRIOT Act is so important, and I’m 

glad we have the witnesses here. 

I just want to say one word about the executive director of the 

American Civil Liberties Union Chief Legislative Council because 

that organization has done so much important work, not alone. 

There are plenty of other organizations with them, but I single 

them out this morning. 

But there are three considerations here. One is whether we need 

John Doe taps and roving taps. To me, that’s a critical consideration. And what are the safeguards we need to put around it. The 

thing of while National Security Letters have been left off the oversight list of the committee. I hope that some of our witnesses today 

will tell us about their use. It appears from a redacted Freedom of 

Information Request that this provision has been used lots of 

times, hundreds of times. 

The less famous part of section 215, National Security Letters, 

are dangerous because in addition to adding a complete gag order 

on the recipient, they’re issued without any oversight, even from 

the FISA Court. 

42

And because DOJ admits getting information from libraries, I 

suspect that these letters may be the source and we must have 

more information about them. 

And finally, section 215, allowing the Government to secretly get 

anything from any business only upon showing a—the showing of 

relevance to a terror or intelligence information—only on showing 

of relevance to terror information or intelligence information. And 

as super secret as usual, DOJ refuses to explain how this section 

has been used. We’re the lawmakers. It seems like the courtesy 

should be given to us, and if for any reason, it can’t be done public, 

we’re all cleared for the most secret information that’s in our Government. It does confirm it has been used 35 times. The information comes on the eve of the sunset. After 3 years of pressing national security that required a secret classification. 

So these are the areas that I’m concerned with and I reiterate 

my concern that the committee has left, in my judgment many important terror-related policies off its oversight schedule—the practice of rendition to the abuse of the material witness statute, to unsuccessful racial profiling. This committee is, in my view—and I 

want to work on trying to get this corrected before this series of 

hearings ends—is ignoring the most pressing matters within its jurisdiction. We can’t limit our oversight to a few sections of the code 

that are due to expire. There’s plenty of things to examine that 

don’t have any expiration date, and so the Department has shifted 

the weight of its terror pursuit to other authorities, and or even in 

the absence of lawful authority at all. So, if we’re truly to do our 

constitutional duty of overseeing the Executive’s use of criminal 

and intelligence laws, I beg this committee to look at all of these 

issues, and I thank you for this opportunity, Chairman Coble. 

Mr. COBLE. I thank the gentleman. We’ve been joined by the distinguished gentleman from Arizona, Mr. Flake, and the distinguished gentleman from Massachusetts, Mr. Delahunt. 

It’s the practice, I say to the panel of the Subcommittee to swear 

in all witnesses appearing before it. So, if you all would please 

stand and raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses has 

answered in the affirmative, and you all may be seated. 

Our first witness today is Mr. Kenneth Wainstein—is that correct, Mr.?—United States Attorney for the District of Columbia. 

Prior to joining the U.S. Attorney’s Office, Mr. Wainstein served as 

general counsel of the FBI and as director of the Justice Department’s Executive Office for the U.S. Attorney. He is a graduate of 

the University of Virginia, and the Boalt Hall School of Law at the 

University of California at Berkeley. 

Our second witness is Mr. James A. Baker, who’s been with us 

before. Mr. Baker, good to have you back. I thank Mr. Baker for 

graciously agreeing to return as a witness for a second time during 

this series of oversight hearings on the USA PATRIOT Act. Mr. 

Baker has been in the Council for Intelligence Policy in the Office 

of Intelligence Policy and Review at the Department of Justice 

since 2002. He served as acting counsel from May 2001 until January 2002. 

43

Prior to that, he was OIPR’s Deputy Counsel for Intelligence Operations. Prior to joining OIPR, he served as a Federal prosecutor, 

handling numerous international white collar crimes for the Criminal Division of the Department of Justice. Mr. Baker was awarded 

his undergraduate degree from the University of Notre Dame, and 

his J.D. and M.A. from the University of Michigan. 

Our next witness is Mr. Robert Khuzami, former Assistant 

United States Attorney in the U.S. Attorney’s Office for the Southern District of New York. While in that office, he served in the office’s terrorism unit. Mr. Khuzami clerked for the Honorable John 

R. Gibson of the U.S. Court of Appeals for the 8th Circuit in Kansas City, Missouri. Mr. Khuzami attended the University of Rochester and the Boston University School of Law. 

Our final witness today is Mr. Gregory T. Nojeim, the Associate 

Director and Chief Legislative Counsel of the American Civil Liberties Union’s Washington National Office. And at this time, on behalf of the Subcommittee, I would like to congratulate Mr. Nojeim 

in advance because I am told that next you will become the acting 

director of that office, so we congratulate you, Mr. Nojeim. 

Prior to joining the ACLU, Mr. Nojeim served as Director of 

Legal Services of the American-Arab Anti-Discrimination Committee. He was graduated from the University of Rochester and the 

University of Virginia’s School of Law. 

Now, as we have told you all previously, we like to practice the 

5-minute rule here. We have examined your written testimony that 

will be reexamined. So the panels that appear before you all on 

your desks there, when the amber light appears, you will have 1 

minute to wrap up, and no one is going to be keel hauled if you 

violate the 5-minute rule, but if you could stay within—when the 

red light appears that indicates the 5 minutes have expired. 

Mr. Wainstein, we will start with you, sir. 

TESTIMONY OF KENNETH L. WAINSTEIN,

INTERIM U.S. ATTORNEY, DISTRICT OF COLUMBIA 

Mr. WAINSTEIN. Thank you, and good morning. My name is Ken 

Wainstein. I’m the U.S. Attorney here in the District of Columbia. 

Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee, thank you very much for inviting me here today to discuss two provisions of the USA PATRIOT Act, sections 206 and 215 

that are critical to our counter terrorism and counter intelligence 

efforts. 

These two sections are scheduled to sunset at the end of this 

year. If this is allowed to happen, we will find ourselves in the position where tools available to law enforcement in the fight against 

drugs, organized crime, and child pornography would be denied our 

national security investigators who are striving to protect our country against terrorism and espionage. Such an outcome would be a 

serious mistake, and, therefore, I am here today to ask you to make 

permanent sections 206 and 215 of the USA PATRIOT Act. 

Section 206 allows the FISA Court to authorize roving quote unquote ‘‘roving surveillance’’ of a foreign power or an agent of a foreign power, such as a terrorist or spy. 

Since 1986, we’ve had the authority to use roving wiretaps to investigate regular crimes, and this tool has proved critical to our efVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00047 Fmt 6601 Sfmt 6601 G:\WORK\CRIME\042605A\20875.001 HJUD1 PsN: 20875
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forts against sophisticated criminals who regularly switch phones 

to avoid electronic surveillance. 

In a case out of Florida, for example, our prosecutors and agents 

investigating a dangerous cell of Colombian drug dealers had gotten 23 separate wiretaps against cell members and leaders, but 

were failing to make a strong case because of the cell’s practice of 

constantly cycling through cell phones. 

Our people ultimately cracked the case when they got a roving 

wiretap that allowed them to continue surveillance as the cell 

members changed phones, and the suspects were ultimately arrested and convicted of distributing over a thousand kilograms of 

cocaine in our country. 

In another drug investigation, in Chicago, investigators obtained 

roving surveillance authority after establishing that the drug lord 

target was purchasing blocks of prepaid cell phones and throwing 

each phone after a short period of use. In the course of about 7 

months, this target went through at least 25 cell phones, thereby 

justifying the use of a roving wiretap under the criminal electronic 

surveillance statute. 

Before the USA PATRIOT Act, however, national security investigators couldn’t utilize such wiretaps in international terrorism or 

espionage investigations. Experience shows that terrorists and 

spies are every bit as crafty at avoiding surveillance as common 

criminals. 

To see that, we need look no further than the Al-Qaeda training 

manual that warns members that quote, ‘‘communication can be a 

knife dug into our back if we do not take the necessary security 

measures.’’ Close quote. And that manual directs Al-Qaeda members to undertake a variety of measures to counter our electronic 

surveillance efforts. 

With no roving authority for national security investigators, the 

terrorists and spies used to have the advantage, and they could 

stay one or two steps ahead of our investigators by switching 

phones. 

Thankfully, section 206 balanced the playing field by authorizing 

the use of roving wiretap authority in national security investigations. Some have expressed concerns that wiretaps, roving wiretaps, somehow open the door to unconstitutional intrusion into our 

privacy. 

This concern is best addressed by looking at the various safeguards in the statute that protect against abuse and overreaching. 

First, we can only get a roving wiretap if we show probable cause 

to believe that the target of a roving surveillance order is either a 

foreign power or an agent of a foreign power, such as a terrorist 

or spy. To make that showing, we must know the target’s name or 

else describe the target with sufficient specificity to convince the 

FISA Court that there’s probable cause to believe that that target 

is a foreign power and agent of a foreign power. 

We have to show that that target is taking action, such as 

switching phones, that may have the effect of thwarting surveillance. And finally, roving surveillance under 206 carries all the 

court approved minimization procedures that limit all FISA surveillance. 

45

Because of these procedures and safeguards, all appellate courts 

that have heard challenges to roving wiretaps have upheld their 

constitutionality. 

Section 215. This section provides national security investigators 

with the authority to ask the FISA Court to order the production 

of the same kind of tangible things, such as business records, that 

prosecutors have long been able to acquire through grand jury subpoenas and criminal investigations. 

As a prosecutor, I can tell you from first hand experience that 

the ability to obtain records with grand jury subpoenas is an essential tool for law enforcement. Investigating crime without subpoena 

power would be like Tiger Woods playing the Masters without a 

putter. 

Before the USA PATRIOT Act, however, it was difficult for national security investigators to obtain business records, as the FISA 

Court could only authorize orders for certain categories of records. 

For example, an agent prior to the PATRIOT Act who was investigating a terrorism suspect would not have been able to get a 

FISA Court order to obtain records showing that that suspect purchased bulk quantities of fertilizer to produce a bomb because a 

feed store is not a quote ‘‘common carrier, public accommodation facility, physical storage, or rental facility,’’ the entities for which the 

old law authorized the use of FISA Court orders. 

Section 215 remedied that glaring problem by authorizing investigators to request the production of any tangible things that are 

relevant to the investigation. In my experience as a prosecutor, I 

view section 215 as a commonsense investigative tool. I recognize, 

however, that the provision has been subject—the subject of concern by many across the country. 

Once again, I believe part of the problem here is that people 

don’t understand the safeguards that are in the statute. 215 has 

a number of these safeguards, which we’ll discuss today. 

Unlike grand jury subpoenas, it requires prior court approval. It 

protects against the use of 215 orders to investigate activities based 

solely on the exercise of first amendment rights. They have a narrow scope, and they are subject to congressional oversight. 

Like 206, section 215 fully safeguards privacy while providing us 

the tools we need to protect our country against international terrorists and spies. 

Given the threat these individuals pose to our nation, I urge 

Congress to allow us the continued use of these vital tools. 

[The prepared statement of Mr. Wainstein follows:]

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PREPARED STATEMENT OF KENNETH L. WAINSTEIN


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Mr. COBLE. Thank you, Mr. Wainstein. Mr. Baker. 

TESTIMONY OF JAMES BAKER, COUNSEL FOR INTELLIGENCE 

POLICY, U.S. DEPARTMENT OF JUSTICE 

Mr. BAKER. Thank you, Chairman Coble, Ranking Member Scot, 

and Members of this Subcommittee. 

I am pleased to be again before you to discuss the Government’s 

use of the authorities granted to it by Congress under FISA, including amendments to FISA and the USA PATRIOT Act. 

As I mentioned on Tuesday, these provisions have made a critical 

contribution to our ability to protect the national security of the 

United States. 

For the benefit of Members who were unable to attend on Tuesday, my office conducts oversight of the intelligence and counter intelligence activities of executive branch agencies, including the FBI. 

We prepare all FISA applications and represent the United 

States before the FISA Court. 

I report directly to the Deputy Attorney General. I’m a career 

member of the senior executive service, and not a political appointee. 

Again, rather than simply read my written statement into the 

record, I’d like to make a few general points about FISA, and amplify on some of my prior comments from the other day. 

As I mentioned the other day, the purpose of FISA was to—as 

enacted in 1978—was to provide legislative authorization for and 

regulation of electronic surveillance conducted within the United 

States for foreign intelligence purposes. FISA was not intended to 

prohibit collection of important intelligence information, but to subject such collection to statutory procedures. 

Over the years, Congress has expanded the scope of FISA to create mechanisms for the Government to obtain separate authorizations for pen registers, searches, and to obtain access to business 

records and other tangible things. 

Prior to the enactment of FISA, the Executive Branch conducted 

electronic surveillance to collect foreign intelligence information 

without a warrant, based upon the President’s inherent constitutional authority to do so. 

In the 1970’s, however, abuses of domestic national security surveillance were disclosed. As a result, Congress looked for an appropriate mechanism to safeguard civil liberties, consistent with the 

needs of national security. 

Since the enactment of FISA, 27 years ago, I submit that there 

has been no repeat of the abuses of the past. I believe this is so 

for several reasons. 

First, there are now clear standards for determining who may be 

a legitimate target of a FISA surveillance or search. The only authorized targets of FISA full content collection are foreign powers 

and agents of foreign powers, both of which are defined terms in 

the act. 

Similarly, FISA only permits the use of other collection activities, 

such as orders for tangible things, when there is a sufficient nexus 

between the information that will be collected and a legitimate intelligence investigation. 

56

When such an investigation involves a U.S. person, it cannot be 

based solely upon protected first amendment activities. 

Second, there is accountability for authorizations for national security collection. FISA includes several mechanisms to ensure written accountability within the Executive Branch for the decision to 

engage in foreign intelligence collection, including a requirement 

that the Attorney General or his deputy personally sign each full 

content application. This serves as a check on Executive Branch arbitrariness. 

In addition, the Attorney General must fully inform the intelligence committees of both Houses of Congress on our use of FISA 

on a regular basis. 

Third, there is judicial oversight of our actions. Whenever a surveillance or search for foreign intelligence purposes may involve 

the fourth amendment rights of any U.S. person, approvals for such 

collection must come from a neutral and detached Federal judge. 

Moreover, even when fourth amendment rights are not implicated, 

such as for third party business records, FISA still requires approval by a Federal judge or a magistrate before the Government 

may engage in such collection. 

Finally, FISA contains other provisions to protect the privacy of 

Americans, most notably including court-ordered minimization procedures. The Government may only conduct a full content surveillance or search when there are adequate procedures in place to 

minimize the intrusion into the privacy of Americans. This includes 

minimization of the acquisition, retention, and dissemination of information about U.S. persons obtained pursuant to full content collection under FISA. 

In conclusion, as we proceed with our discussion today, we must 

remember that it’s our collective fundamental task to determine 

how best to protect the national security of the United States in 

a manner consistent with the Constitution. We must be mindful, as 

the Supreme Court stated in the Keith case in 1972, that unless 

Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. 

I am proud to be here today to represent the dedicated men and 

women OIPR who work diligently everyday to do their part to protect both the national security and the Constitution of the United 

States, and to enforce the laws as enacted by Congress, especially 

FISA. With these principles in mind, I’m happy to answer any 

questions that the committee may have. 

[The prepared statement of Mr. Baker follows:]

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PREPARED STATEMENT OF JAMES A. BAKER


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Mr. COBLE. Mr. Baker, you’ve been on the Hill several times. You 

know how to beat that red light. You did it again. 

Mr. BAKER. Thank you, sir. 

Mr. COBLE. Mr. Khuzami, good to have you with us, sir. 

TESTIMONY OF ROBERT KHUZAMI, FORMER ASSISTANT

U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK 

Mr. KHUZAMI. Thank you. Chairman Coble, Ranking Member 

Scott, Members of the Subcommittee, it’s an honor to testify before 

you today in a matter of such importance to our national security. 

For nearly 12 years, I was an Assistant United States Attorney 

in the U.S. Attorney’s Office in the Southern District of New York, 

and spent a significant amount of time working on terrorism cases. 

I was a member of the team that in 1995 prosecuted Sheik Omar 

Abdel-Rahman, the blind cleric and head of the Egyptian Islamic 

Group, and 11 others for conducting a war of urban terrorism 

against the United States. The acts of that group included among 

other things the 1993 bombing of the World Trade Center; the murder in 1990 of Rabbi Meir Kahane, the head of the Jewish Defense 

League; and a conspiracy to carry out a day of terror in New York, 

the planned simultaneous bombing of various New York City landmarks, including the United Nations complex, the Lincoln and Holland Tunnels, and the FBI’s New York headquarters. 

I was also involved in assisting in the supervision of the U.S. Attorney’s Command Post in lower Manhattan following the events of 

9/11. 

I am here today to support reauthorization of sections 215 and 

206 of PATRIOT Act. 

I’ll confine my remarks this morning to section 215. 

Some view it as a radical extension of Government authority that 

permits unprecedented snooping into the private reading habits of 

Americans and threatens to sweep innocent Americans into secret 

terrorism investigations. 

My experience teaches me otherwise. 

Section 215 simply and modestly is designed to permit the Government to collect standard business records from third parties relevant to foreign intelligence or terrorism investigations. These are 

the same records that prosecutors across the country every day 

routinely obtain in drug, and larceny, and fraud, and corruption investigations. 

They’re credit card receipts. They’re bank statements. They’re 

hotel bills. They’re leases, and so on. There is nothing unusual or 

nothing accusatory of asking innocent third parties to produce such 

records in terrorism investigations. 

Second, terrorists use libraries. The 9/11 Commission found that 

to be case that some had used Internet access in a Hamburg, Germany library. A recent espionage prosecution revealed that a spy 

had used computer terminals at various public libraries to send 

classified information. An Al-Qaeda terrorist used library computer 

terminals to send electronic messages. 

The Unabomber, Ted Kaczynski, in a criminal investigation, was 

captured in part when the police obtained his library records and 

learned that he had borrowed from his local library obscure books 

that were cited in his widely distributed Manifesto. 

62

Third, section 215 neither targets nor exempts library records. 

Nor has it been used for that purpose, as the Chairman has pointed out. 

This doesn’t mean that section 215, however, should be amended 

to exempt libraries and bookstores, for their records could be critical in a terrorism investigation. Lack of use is not the same thing 

as lack of importance. In a terrorism case, even a single missed opportunity or misstep can have catastrophic consequences. That is 

simply not the case in criminal investigations. 

Fourth, section 215 provisions do protect the privacy and civil 

liberties of Americans. It can’t be used to investigate a U.S. person 

based solely on first amendment activities and not at all to investigate domestic terrorism. The Foreign Intelligence Surveillance 

Court must approve section 215 applications. 

Fifth, section 215 properly expanded the type of records obtainable in terrorism investigations beyond what had been the law—

simple lodging or vehicle rental or storage facilities. 

This corrected the anomaly that allowed the Government to obtain a would-be terrorist’s motel records, but not receipts evidencing purchases of explosives or precursor chemicals or books on how 

to manufacture explosives. 

Sixth, section 215 also eliminated the previous requirement that 

the Government provide specific articulable facts that are the subject—that the subject of the investigation was an agent of a foreign 

power. As a legal matter, this standard only applies where there 

exists some legally recognized privacy interest, and there is no such 

interest in section 215 records. 

There may be some circumstances where such a strict standard 

should apply even though there’s no privacy interest at stake, but 

national security is not one of those instances. It is where the public interest in Government access, in my view, is most urgent. 

Next, the Department of Justice interprets and has endorsed 

amendments that would allow those getting section 215 orders to 

consult with attorneys and challenge the order and its scope before 

the FISA Court. That change protects citizens against improper use 

of section 215. 

Lastly, there has been some concern expressed about rogue 

agents, agents who may be inclined to violate the civil liberties of 

Americans by looking for ways to circumvent the law in order to 

learn what we read and what organizations we belong to. The 

agents and translators and surveillance specialists and analysts 

that I worked with were dedicated, talented, and law abiding. And 

there are many procedures designed to prevent that from happening. 

But even if you can’t eliminate the occasional rogue, the empirical evidence from the Department of Justice Inspector General establishes that not a single case of abuse of civil rights or liberties 

from the PATRIOT Act has been documented. 

I strongly urge the committee to reauthorize section 215. I’d be 

happy to answer any questions. 

[The prepared statement of Mr. Khuzami follows:]

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PREPARED STATEMENT OF ROBERT S. KHUZAMI

Chairman Coble, Representative Scott, and members of the Subcommittee on 

Crime, Terrorism and Homeland Security, thank you for inviting me here this morning. It is an honor to testify before you, particularly on a matter of such importance 

to our national security. 

I am currently a lawyer in private practice in the New York area. For nearly 12 

years, I was an Assistant United States Attorney in the United States Attorney’s 

Office for the Southern District of New York, and spent a significant amount of time 

working on counterterrorism cases. From shortly after the February 26, 1993 bombing of the World Trade Center through early 1996, I was a member of the team that 

prosecuted Sheik Omar Abdel Rahman—the blind cleric who led the Egyptian-based 

Islamic Group and played a key role in the 1981 assassination of President Sadat—

and eleven others for conducting a war of urban terrorism against the United 

States. Their acts included, among other things, the WTC bombing, the 1990 murder of Rabbi Meir Kahane (the founder of the Jewish Defense League), plots to murder various political and judicial leaders, and a conspiracy to carry out a ‘‘Day of 

Terror’’—the simultaneous bombing of various New York City landmarks, including 

the United Nations complex, the Lincoln and Holland Tunnels (through which thousands of commuters travel daily between lower Manhattan and New Jersey), and 

the Jacob K. Javits Federal Building that houses the FBI’s New York Headquarters. 

Following the events of 9/11, I assisted in supervising the U.S. Attorney’s Command Post in lower Manhattan, where hundreds of law enforcement and intelligence 

personnel worked tirelessly to investigate that attack and to prevent another. 

The changes set forth in the PATRIOT Act, as well as the events of 9/11 in general, have brought about significant public debate about the appropriate balance of 

civil liberties, privacy and security. That debate is undeniably healthy, a fact which 

Congress recognized when it sunsetted certain PATRIOT Act provisions in order to 

provide an opportunity for an informed evaluation of their impact. 

Two PATRIOT Act provisions are being considered this morning—Section 206, the 

so-called ‘‘roving wiretap’’ provision and Section 215, the access to records provision. 

I approach my analysis from two perspectives. The first is that of an ex-prosecutor 

of terrorism crimes, who believes firmly that we must fully identify and utilize every 

lawful tool to prevent terrorist attacks and capture those involved. The second is 

as an American citizen who recognizes the fundamental importance of the privacy 

rights and civil liberties of all Americans. Balancing these two perspectives, I conclude that, with two amendments recently embraced by the Department of Justice 

(‘‘DOJ’’), Sections 215 and 206 should be reauthorized. 

SECTION 215

Section 215 authorizes the Foreign Intelligence Surveillance Court to order the 

production of ‘‘tangible things (including books, records, papers, documents and 

other items)’’ as long as they are ‘‘sought for’’ an ‘‘authorized investigation to obtain 

foreign intelligence information not concerning a United States person or to protect 

against international terrorism or clandestine intelligence activities.’’ In its most 

common application, Section 215 permits the government in terrorism investigations 

to obtain business records held by third parties, including those held by banks, hotels, landlords, credit card companies and, yes, libraries and bookstores. Somewhat 

surprisingly, Section 215 is viewed by many Americans as a radical extension of 

government authority that permits unprecedented snooping into the library records 

and private reading habits of Americans, and threatens to sweep up innocent Americans into secret investigations of terrorist activity. It has caused such angst 

amongst librarians that it has been labeled the ‘‘Angry Librarians Provision.’’

Four points need to be made. First, Section 215 permits a court to order the production of standard business records from third parties. These are the same records 

that prosecutors across the country routinely obtain every day in drug, larceny, 

fraud, corruption and all manner of standard criminal investigations. They include 

credit card receipts, bank statements, hotel bills, leases, subscriber information for 

phones, and the list goes on and on. There is nothing unusual or accusatory about 

requiring third parties possessing these records—innocent third parties all of 

them—to produce them in a terrorism investigation of another person. That is all 

Section 215 does. 

Second, Section 215 is agnostic about libraries and bookstores—it neither targets 

nor exempts them, and the word ‘‘library’’ is nowhere mentioned in its text. In fact, 

rather than aggressively use Section 215 to collect information about library patrons, as some have feared, the government recently reported that it has obtained 

Section 215 orders on 35 occasions, but never once for library records. Presumably, 

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this reflects the fact that library records are rarely relevant to terrorism investigations, a fact that should assuage its critics. 

Third, terrorists use libraries. The 9/11 Commission found that some of the 9/11 

conspirators used Internet access through a Hamburg, Germany library. A recent 

espionage prosecution revealed that a spy used computer terminals at various public 

libraries to send classified information. An Al Qaeda terrorist used library computer 

terminals to send electronic messages. Terrorists and their sympathizers also create, 

collect and disseminate writings and speeches that train, recruit and incite others 

to participate in terrorist acts. In the Blind Sheik prosecution, for example, evidence 

consisting of bomb-making manuals, including pages containing the fingerprints of 

co-conspirators, was introduced at trial. In his written sermons, the Blind Sheik 

extolled the virtues of violent jihad against the United States with ‘‘the sword, with 

the cannon, with the grenades and with the missile,’’ and urged his followers to embrace the terrorist label:

Why do we fear the word ‘‘terrorist?’’ If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who 

struggles for the sake of God, then we are terrorists. . . . They may say ‘‘he is a terrorist, he uses violence, he uses force.’’ Let them say that.

It is for this reason that library records, writings and other literature have long 

been available to criminal investigators through the use of a grand jury subpoena. 

The ‘‘Unabomber,’’ Ted Kaczynski, was captured based on a tip from his brother, 

who thought he recognized the writing in the Unabomber’s ‘‘manifesto’’ as that of 

his brother. Law enforcement corroborated the brother’s suspicion in part by examining library records, from which they learned that Kaczynski had checked out little-known books referenced in the manifesto. Section 215 simply extends to terrorism investigations the same authority available to criminal investigators. 

Fourth, it does not follow that because the government’s has not to date used Section 215 authority to obtain library records, that Section 215 should sunset, or be 

amended to exempt libraries and bookstores. This would turn libraries into sanctuaries, where would-be terrorists could communicate with their cohorts without 

fear of detection. This is not mere speculation—an Al Qaeda terrorist reportedly 

used library computer terminals to send messages to his associates around the 

world specifically because he knew the digital records were deleted nightly, thus 

concealing his activity. Unfortunately, some library representatives are creating de 

facto sanctuaries by ordering daily shredding of library log-in and other records, in 

response to misplaced fears about Section 215. 

This ‘‘use it or lose it’’ argument is also specious because it equates lack of usage 

with lack of importance. The mere fact that Section 215 has not been ‘‘used’’ historically to obtain information from libraries or bookstores does not mean that such authority could not be critically important in the next case. More so than criminal 

prosecutions, terrorism plots, however speculative or nascent, must be zealously 

pursued by investigators armed with the option of using the fullest arsenal of lawful 

investigative tools. That is because even a single missed investigative opportunity 

or misstep can have catastrophic consequences. In contrast, in criminal investigations, for example, it is unfortunate but not fatal if before a stockbroker is arrested, 

he executes one more stock purchase using inside information. That is not being 

falsely alarmist; the horrific consequences of the detonation of a dirty bomb over a 

major urban center, or the Blind Sheik’s plan to bomb multiple New York City landmarks simultaneously, are undeniable. 

In sum, the four points establish a compelling case for Section 215 reauthorization. They show that Section 215 is not about libraries, but provides for routine document collection in terrorism cases; that as far as libraries are concerned, terrorists 

use them and library records can provide evidence of that; and that the catastrophic 

consequences of a successful terrorist attack demand that we have available all lawful investigative tools. 

In addition to these points, the provisions of Section 215 should mollify critics, 

since they set forth a sensible framework to permit intelligence agents to obtain 

business records. Section 215 requires the government to certify that the records are 

‘‘sought for an authorized investigation to obtain foreign intelligence information 

[not against a United States person] . . . to protect against international terrorism 

or clandestine intelligence activities.’’ The DOJ interprets this provision as requiring 

that the records be ‘‘relevant’’ to such investigations, and has endorsed an amendment to that effect. In recognition of First Amendment concerns, Section 215 cannot 

be used to conduct an investigation based solely on the activities protected by the 

First Amendment. 

The Foreign Intelligence Surveillance Court must approve Section 215 applications. While the level of that judicial review is not high, it is appropriate given the 

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type of records under consideration in Section 215 proceedings. Business and library 

records are preexisting documents that belong, will be given, or are available, to 

third parties—banks, landlords, rental car agencies and even librarians—and thus 

persons lack a reasonable expectation of privacy in them. For that reason, they are 

obtainable in a criminal investigation with a grand jury subpoena alone, which is 

issued without judicial review or supervision. From the perspective of judicial review, Section 215 provides more protection, not less, for library patrons than they 

enjoy in parallel criminal proceedings involving the same records. 

To be sure, Section 215 expanded the government’s pre-PATRIOT Act authority 

to obtain records in terrorism cases. This change was overdue, since the prior law 

was unnecessarily restrictive. Whereas Section 215 now permits the government to 

obtain with court approval all ‘‘tangible things (including books, records, papers, 

documents and other items),’’ the prior provision limited the government to obtaining records from lodging and vehicle rental and storage facilities. Again, criminal 

investigators have long been permitted to obtain the broader range of records now 

provided for in Section 215. Comparisons with criminal investigations aside, the expansion of authority under Section 215 makes sense in its own right, since it would 

be irrational, for example, to permit the government in a terrorism investigation to 

obtain under Section 215 a would-be terrorist’s motel records, but deny it the ability 

to obtain receipts evidencing purchases of fertilizer or precursor chemicals, or to 

learn that he obtained books on how to manufacture explosive devices or detect surveillance. 

Another expansion of authority in Section 215 was the elimination of the requirement that the government provide ‘‘specific articulable facts’’ that the subject of the 

investigation was an ‘‘agent of a foreign power.’’ Critics assert that elimination of 

this particularized showing allows the government to use Section 215 to obtain 

records from persons without showing that they relate to a real terrorist or spy. Of 

course, as noted above, the third-party records at issue here do not implicate a recognized expectation of privacy. The government should generally be required to 

make a particularized showing only in circumstances where this is necessary to 

overcome some legally recognized privacy interest. There may be some instances 

where a departure from that general rule is warranted, but national security is not 

one of them—it is where the public interest in government access is most urgent. 

Leaving that aside, this change recognizes the reality that targets of terrorism investigations are trained to operate through multiple aliases and identities. It would 

serve no purpose to delay obtaining what might be records critical to uncovering a 

terrorist plot simply because the target’s real name, or associational connections, 

has not yet been ascertained. Evidence of the purchase of detonators is equally relevant to preventing a terrorist plot, regardless of whether the government yet 

knows that the purchaser has ties to Al Qaeda. Once again, elimination of the requirement that a particularized showing be made places terrorism investigations on 

the same footing as criminal investigations, where no such showing is required to 

obtain the exact same records. 

Critics cite excessive confidentiality—a ‘‘gag order’’—as another flaw in Section 

215. It prohibits persons receiving Section 215 orders from disclosing to third parties those orders or that the FBI has sought or obtained them. Section 215 detractors suggest that the threat of government overreaching in Section 215 would be 

less troubling if the statute allowed for more transparency, such that the public 

could understood what records the government sought and why. Critics also contrast 

Section 215’s confidentiality provision with the grand jury process, where they claim 

the recipient receives notice of the subpoena and can move to quash it in court. 

It is unassailable that real and potentially catastrophic harm can result from the 

premature disclosure of a terrorism investigation. I agree, however, that this risk 

does not justify barring recipients of Section 215 orders from consulting with attorneys, and from challenging the order before the Foreign Intelligence Surveillance 

Court. The DOJ has publicly agreed with this position. If such consultation and 

challenge were permitted, it would place Section 215 proceedings on a par with 

grand jury proceedings, where the subpoena recipient obviously knows of its existence and can challenge it in court, but at the same time may be prohibited from 

disclosing its existence to others. 

Beyond this amendment, however, the confidentiality provisions of Section 215 

should not be disturbed. You do not want potential terrorists to know you are investigating them or are aware of their plans. A leak could cause conspirators to accelerate the plot to a point where authorities are less prepared to prevent it or protect 

American lives. Or terrorists might abandon the plot, destroying evidence and taking flight, which would hinder prevention, capture and prosecution. The plot might 

later resurface, at a point when we are less prepared and more vulnerable. Each 

and all of these scenarios present a missed opportunity to protect innocent AmeriVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00069 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\042605A\20875.001 HJUD1 PsN: 20875
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1Patriot Debates: A Sourceblog for the USA PATRIOT Debate (available at http://

www.patriotdebates.com/214-and-215) 

cans from harm. Premature disclosure also risks harm to agents, witnesses and undercover operatives. Against this risk of harm must be weighed the interests that 

are served from permitting the recipient of a Section 215 order to disclose it to persons other than an attorney. Whatever that interest is, it does not in my view outweigh the risk that flows from wrongful disclosure. 

Some Section 215 criticisms assume the existence of large numbers of ‘‘rogue 

agents,’’ who are characterized as inclined, given the opportunity, to violate the civil 

liberties and privacy rights of Americans by searching for and exploiting legal and 

administrative loopholes to browse through their reading materials and subscription 

and membership lists. This hypothetical rogue agent then becomes, so the argument 

goes, the justification for additional Section 215 restrictions. It is not apparent to 

what extent, if at all, such rogue agents exist. As Andy McCarthy wrote, agents 

‘‘generally lack voyeuristic interest in the public’s reading and viewing habits . . . 

and voluminous information streams and finite resources leave no time for this sort 

of malfeasance.’’ 1 The agents, analysts, translators and surveillance specialists with 

whom I worked were dedicated, talented and law-abiding. And the gauntlet of administrative guidelines, directives, policies, laws and committees applicable to the 

FBI and DOJ, as well as congressional and judicial oversight, all deter rogues by 

providing training, oversight, and a mechanism for redress and discipline. 

Even assuming rogues present the threat identified by Section 215 critics, it hardly follows that the restrictions they suggest would have the desired effect. Those determined to break rules are not easily deterred, and the real impact of such restrictions may be to unnecessarily burden the conscientious, law-abiding agent trying to 

do his job effectively. In the end, the best response to the ‘‘rogue agent’’ concern is 

the empirical evidence—according to the DOJ’s Inspector General, who was required 

under Section 1001 of the PATRIOT Act to investigate complaints of abuse of civil 

rights and liberties under the Act, there have been no documented cases of abuse 

of civil rights or liberties from the PATRIOT Act in the more than three and onehalf years since its passage. 

In sum, Section 215 orders are useful investigative tools in combating terrorism. 

Most of what the statute permits is already available in criminal investigations, and 

any differences either make good investigative sense and, given the DOJ’s willingness to consider two amendments, do not threaten the legitimate privacy and civil 

liberty interests of Americans. 

SECTION 206

Section 206 of the PATRIOT Act provides for so-called ‘‘roving’’ wiretaps and other 

electronic surveillance in foreign intelligence and counterterrorism investigations. 

Prior to PATRIOT, once having obtained the approval of the Foreign Intelligence 

Surveillance Court for a wiretap, agents had to return to that Court each time the 

subject of that surveillance switched phones, in order to amend the order to direct 

the new electronic communications provider to give the technical assistance necessary to install and maintain the new wiretap. Due to concerns that targets were 

rapidly changing phones to avoid detection, including prior to important conversations and meetings, Section 206 eliminated the need for agents to return to the 

Court each time a target switched devices. It accomplished this by permitting the 

government, upon a showing that the subject is taking steps to thwart surveillance, 

to include in the original order a general directive that any electronic communications provider extending services to the target in the future must provide the necessary technical assistance. 

In part because authority for ‘‘roving’’ wiretaps has long been available in criminal 

cases, the only serious criticism of section 206 is that it allows intelligence investigators to conduct ‘‘John Doe’’ roving surveillance that permits the FBI to wiretap every 

single phone line, mobile communications device, or Internet connection the suspect 

may use without having to identify the suspect by name. This criticism ignores hurdles that guard against overly-broad wiretapping. First, ‘‘roving’’ wiretaps are available only upon a showing that the subject is taking steps to avoid surveillance. Second, where agents cannot identify by name the target of a proposed wiretap, they 

must describe the subject with sufficient particularity to convince the FISA Court 

that there is probable cause to believe the subject is a ‘‘foreign power’’ or an ‘‘agent 

of a foreign power.’’ That is, the wiretap order applies only to a specific person, even 

if the government has not yet ascertained his or her identity. The alternative—to 

make wiretaps unavailable until the target is identified—is a highly risky restriction, since valuable intelligence may be lost while a person’s identity is investigated, 

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especially given that terrorists operate in a clandestine world and are trained to use 

multiple aliases and identities. Third, if the government wants to conduct a wiretap 

of a new target, it must return to the Court with a new application. Finally, agents 

conducting wiretap investigations must abide by ‘‘minimization’’ requirements, 

which strictly control the monitoring and retention of conversations by innocent persons not involved in the wrongful conduct. 

These provisions provide adequate safeguards to protect the civil liberties and privacy interests of Americans. 

CONCLUSION

I strongly urge the Committee to reauthorize Sections 206 and 215 of the PATRIOT Act. These provisions strike the correct balance between homeland security 

and civil liberties. 

I thank the Committee for its time and attention, and would be happy to answer 

any questions.

Mr. COBLE. Thank you, Mr. Khuzami. Mr. Nojeim. 

TESTIMONY OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR/

CHIEF LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES 

UNION 

Mr. NOJEIM. Thank you, Chairman Coble, Ranking Member 

Scott, Members of the Subcommittee. 

It’s a pleasure to testify before you today on behalf of the ACLU 

about certain sunsetting provisions of the USA PATRIOT Act. I 

will focus your attention on one of them—section 215, which deals 

with FISA records requests. 

I’ll also focus your attention on a related provision, section 505 

of the PATRIOT Act that does not sunset, but that raises many of 

the same concerns as does section 215. 

The PATRIOT Act expanded two existing sections of law that 

allow the FBI to compel people in businesses to produce documents 

and things. 

Section 215 of the PATRIOT Act expanded a provision of law to 

authorize the FBI to more easily obtain a court order from the secret FISA Intelligence Court requiring a person or business to turn 

over documents or things ‘‘sought for’’ an investigation to protect 

against international terrorism or clandestine intelligence activities. 

This ‘‘sought for’’ standard minimizes the role of the FISA Judge 

in controlling abuse, because it does not require any assessment of 

whether the records sought pertain to an agent of a foreign power 

or whether specific facts support a particular conclusion. 

Section 505 of the PATRIOT Act expanded National Security Letter authority to allow the FBI to issue a letter compelling Internet 

Service Providers, financial institutions, and consumer credit reporting agencies to produce records about people who use or benefit 

from their services. 

This power was later expanded to include records of car dealers, 

boat dealers, jewelers, real estate professionals, pawn brokers, and 

others. 

In both section 215 and 505, the PATRIOT Act removed from the 

law the requirements that the records being produced pertain to an 

agent of a foreign power; that is, a foreign country, a foreign business, or a foreign terrorist organization. This significantly expanded law enforcement access to records pertaining to Americans. 

In these days of data mining, one cannot ignore this stark fact: 

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under these provisions, the Government can easily obtain records 

pertaining to thousands of Americans who have nothing to do with 

terrorism, so long as the records are ‘‘sought for’’ or are allegedly 

relevant to one of these investigations. 

Neither of these statutes signals the recipient of a letter or order 

that the recipient can challenge it in court. Both statutes indicate 

that the recipient can tell no one that the recipient has received 

the order or letter, including an attorney with whom the person 

might like to consult. 

In common parlance, the recipient is gagged, and under the statutory language the gag stays in place forever. 

We do not ask that you repeal either of these sections of law. 

Rather, we ask that you restore the ‘‘agent of a foreign power’’ requirement and that you amend the statute to time limit the gag, 

exempt attorney-client communications from it, and allow for court 

challenges. 

If these changes are made to the NSL statutes, they would satisfy the court that struck down as unconstitutional the NSL statute 

that applies National Security Letters to Internet Service Providers. 

We also recommend that you require the Government to report 

publicly about the number of times it uses these powers. 

Mr. Chairman, this could be one of the most productive hearings 

that you’ve conducted to date on the PATRIOT Act, and I say that 

because the Government has conceded that many of these changes 

need to be made. The Attorney General conceded that the gag to 

which I refer shouldn’t cover attorney-client communications. Let’s 

put it in the statute. 

The Government has conceded that—the Attorney General has 

conceded that the statute has a relevance requirement. Let’s put a 

standard into the statute instead of this very loose ‘‘sought for’’

standard. 

The Attorney General has conceded that a court challenge ought 

to be allowed. Let’s put that in the statute. The Department of Justice in its sunsets report has indicated that evidence must be presented to the judge who is evaluating an application for a section 

215 order. Let’s put that in the statute. 

And finally, the Department of Justice has implicitly conceded 

that the number of times section 215 has been used can be disclosed without any damage to national security, and it did that because it has twice disclosed the number of times section 215 has 

been used. 

Mr. Chairman, I’d be happy to discuss roving wiretaps during 

the question and answer period, but let me sum up by saying this: 

We’re not asking that law enforcement tools be taken away. Rather, we’re asking that they be made subject to reasonable checks 

and balances, such as meaningful judicial oversight and appropriate disclosure to the public of the use of the power. Congress 

could adopt many of the reforms that I have mentioned by enacting 

the Security and Freedom Ensured Act, H.R. 1526. This bipartisan 

legislation, co-sponsored by Representative Otter, Representative 

Flake, Mr. Conyers, and others, contains a series of carefully calibrated adjustments to the PATRIOT Act that would go a long way 

69

toward bringing it more into line with the Constitution and advancing the goal of keeping America both safe and free. Thank you. 

[The prepared statement of Mr. Nojeim follows:]

PREPARED STATEMENT OF GREGORY T. NOJEIM


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Mr. COBLE. Thank you, Mr. Nojeim. We have been joined by the 

distinguished gentleman from Florida, Mr. Feeney, and the distinguished gentleman from Texas, Mr. Gohmert. But don’t start me 

yet. 

Gentlemen, we apply the 5-minute rule to ourselves, as well. So 

if you all could keep your responses as terse as possible and yet 

address the point, that would enable us to move along. 

Now, what I’m about to say has nothing to do with 206 or 216. 

Mr.—I want to advise the Members of the Subcommittee and those 

in the hearing room that effective today, Mr. Bobby Vassar, who 

is the counsel to Mr. Scott, has become a granddaddy, a grandfather. And I told him earlier, I said, Bobby you look too young to 

be a grandfather, but congratulations to you, Bobby. 

Mr. VASSAR. Thank you, Mr. Chairman. 

Mr. COBLE. And incidentally, I had received Mr. Scott’s permission before I did that, Bobby. 

He said you would not approve. 

Mr. Baker, what type of library records are covered under 215 

and how do these records assist or help in terrorism investigation, 

A; and B—and I think you touched on this—if we exempt library 

and book records from a 215 order, does that create a sanctuary for 

terrorists? 

Mr. BAKER. Well, as I think you mentioned in your opening remarks, Mr. Chairman, the section 215 of the PATRIOT Act, does 

not discuss any particular holder of records at all. It doesn’t mention libraries at all. It doesn’t mention anyone else. And that’s why 

it’s an important provision. It allows the Government to go after 

what it needs with respect to each investigation. But it does not 

single out libraries or bookstores or anything else. That’s point 

number one. 

Point number two is the effect would be it would create—it would 

put everybody on notice, if you exempted libraries or booksellers 

somehow, it would put people on notice that there was a, you know, 

a Government free zone where investigations could not go, and conduct could be conducted there, including, for example, use of computers or, you know, checking out other types of materials that 

might in some instances, as it has in the past and actual investigations provided important information for investigators. So we don’t 

support that singling out or creating a sanctuary for any type of 

documents at all. 

Mr. COBLE. I thank you, sir. Mr. Wainstein, some have suggested 

that since 215 has not been used to obtain library records, it’s not 

needed, although I think maybe Mr. Baker probably will answer 

this as well. A recent commentary indicated that the 9/11 hijackers 

used libraries in the United States in the period leading up to September 11. Do you know whether or not, in fact, this is true? 

Mr. WAINSTEIN. Yes. Some 9/11 hijackers did use libraries in the 

United States. Investigators have received information that individuals believed that 9/11 hijackers Wail Alshehri, Waleed 

Alshehri, and Marwan Al-Shehhi visited the Del Ray Beach Public 

Library in Del Ray Beach, Florida. 

Wail Alshehri and Waleed Alshehri entered the library one afternoon in July of 2001, and asked to use the library’s computers to 

access the Internet. After about an hour a third man, Marwan AlVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00088 Fmt 6601 Sfmt 6601 G:\WORK\CRIME\042605A\20875.001 HJUD1 PsN: 20875
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Shehhi, joined the two. Waleed and Wail Alshehri were hijackers 

aboard American Airlines Flight 11, while Al-Shehhi was the pilot 

who took control of United Airlines Flight 175, both of those flights 

crashed into the World Trade Center on September 11th. 

A witness, who recognized photos of the three individuals that 

ran the newspaper articles after September 11th, provided the information about the Del Ray Beach library visit. While no records 

exist to confirm the hijackers’ visit to the Del Ray Beach Library, 

the timing, location, and behavior described by the witness are consistent with other information gathered in the course of the investigation. 

In addition, investigators tracing the activities of the hijackers 

determined that on four occasions in August of 2001, individuals 

using Internet accounts registered to Nawaf Alhazmi and Khalid 

Almihdhar, 9/11 hijackers, used public access computers in the library of a State college in New Jersey. The computers in the library were used to review and order airline tickets on an Internet 

travel reservations site. Alhazmi and Almihdhar were hijackers 

aboard American Airlines Flight 77, which took off from Dulles Airport and crashed into the Pentagon. The last documented visit to 

the library occurred on August 30, 2001. On that occasion, records 

indicate that a person using Alhazmi’s account used the library’s 

computer to review September 11th reservations that had been previously booked. 

Mr. NOJEIM. Mr. Chairman, may I respond to that? May I respond to that? 

Mr. COBLE. Well, I’ll get to you in just a minute, Mr. Nojeim. I 

want to ask Mr. Khuzami a question. We’re going to probably have 

a second round here as well. Comparing the process for obtaining 

records through a grand jury subpoena, Mr. Khuzami, with the 

process for obtaining records through section 215, which process in 

your opinion contains more safeguards to ensure the privacy of 

Americans? 

Mr. KHUZAMI. Mr. Chairman, I believe that section 215 does for 

a host of reasons. 

First, it has a much narrower scope. It only applies in foreign intelligence investigations or investigations designed to protect 

against international terrorism or espionage activities. 

Whereas, in the grand jury process, you can investigate anything 

in the entire Federal criminal code, as well as terrorism and espionage cases. So the scope is much narrower in section 215. 

Two, you cannot use section 215 authority to investigate a U.S. 

person based solely on their first amendment activities. There is no 

such similar restriction in the grand jury process. 

Third, and most importantly, there is judicial review of the section 215 order before it is issued. Agents can’t just go out and grab 

your records. They have to present an application to the court and 

the court has to review it. It is an independent check on law enforcement that does not exist in the grand jury process. 

Next, there’s congressional oversight, as you well know, for section 215 orders and the Department of Justice has to report on its 

use of that provision. 

86

And lastly, the Inspector General has to report on abuses in general under the PATRIOT Act. Neither of those two oversight functions exist in the grand jury process. 

Mr. COBLE. Well, my time has expired. The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on 

that. On the grand jury you’re actually investigating a crime; is 

that right? 

Mr. KHUZAMI. That’s correct. 

Mr. SCOTT. And in 215, you can be investigating—you said terrorism. But you can also be investigating—is 215 limited to terrorism or crimes? 

Mr. KHUZAMI. No, it can be used to collect foreign intelligence information or to investigate espionage. 

Mr. SCOTT. Whoa. Whoa. Whoa. Wait a minute. What is foreign 

intelligence information mean? 

Mr. KHUZAMI. That is information designed to determine if there 

are foreign intelligence agents collecting information or acting 

within the United States who may pose a threat. 

Mr. SCOTT. A threat? Does it have to be a threat? 

Mr. KHUZAMI. Does it have to be a threat? 

Mr. SCOTT. Right. 

Mr. KHUZAMI. No, it doesn’t have to be a threat. But you have 

to be very careful to make sure that you are collecting this information so that you can prevent an attack rather than prosecuting it 

after it happens. And that’s the critical difference in 215. 

Mr. SCOTT. How about getting information on trade deal negotiations in helping you conduct foreign affairs? 

Mr. KHUZAMI. I’m not aware that it’s ever been used for that purpose. 

Mr. SCOTT. I didn’t ask you—it says the code—does the code say 

conduct of foreign affairs, Mr. Baker. Is that what it says? 

Mr. BAKER. Yes, sir. It does. 

Mr. SCOTT. Okay. Well, conduct of foreign affairs—a trade deal. 

Where is the threat if we don’t get their low price on steel? 

Mr. KHUZAMI. I’m not aware that there is a threat for those purposes? 

Mr. SCOTT. Okay. But you can get 215 information if it’s helping 

you conduct your foreign affairs; is that right? 

Mr. KHUZAMI. I’m not aware that it has ever been used for that 

purpose. 

Mr. SCOTT. Well, do you want to—can we strike it—well, how 

would you like us to limit this to just crimes and terrorism so we 

don’t have to ask these questions every time we have a hearing 

about you getting a roving wiretap for things that have nothing to 

do with criminal activity or any national security of the American 

public? 

Mr. BAKER. May I respond to that, Congressman? 

Mr. SCOTT. Sure. 

Mr. BAKER. We discussed this briefly the other day, and I mean 

one of the purposes of FISA is to provide the President of the 

United States with timely and accurate information about the capabilities, plans, and intentions of foreign powers and their agents 

across the board. And the President of the United States has broad 

87

responsibilities to protect the national security, but also to conduct 

the foreign affairs of the United States. 

So as in my prior dealings with the Congressman, he always 

challenges me, and I always have to go do my homework to make 

sure I know exactly what we’re talking about here. So after we discussed this the other day, I went off and looked up the legislative 

history on this particular point, and I believe it provides some comfort in this area, because it says that the provision we’re talking 

about here requires that the information sought involves information with respect to foreign powers or territories and would, therefore, not include information solely about the views or planned 

statements or activities of Members of Congress, Executive Branch 

officials, or private citizens concerning the foreign affairs or national defense of the United States. 

Mr. SCOTT. If you have the agent of a foreign government that 

you’re discussing a trade deal with, can you get a 215 information 

and can you get the roving wiretap? 

Mr. BAKER. In? 

Mr. SCOTT. And that’s all the probable cause you got. The probable cause he’s a foreign agent, and the probable cause he’s going 

to talk about with his people back home what the low price on steel 

is. Can you get a roving wiretap? 

Mr. BAKER. Under the statute, the answer is yes. 

Mr. SCOTT. Okay. 

Mr. BAKER. But there’s a limitation in that the information 

sought must be with respect to foreign powers or their territories, 

so it’s different. It’s not information about that U.S. person. It’s information about what the foreign power. 

Mr. SCOTT. Okay. Well, let’s talk about this U.S. person where 

you say you can’t get it solely for protected first amendment activities. 

Mr. BAKER. Yes. That’s correct. 

Mr. SCOTT. And that solely invites a question. Suppose it’s mostly for first amendment activities? A war protester? 

Mr. BAKER. I am quite confident that my office, the Attorney 

General, and the FISA Court would be very concerned about any 

requests to conduct a FISA that was not done for a proper purpose; 

that was done apparently for a purpose to collect information about 

somebody who was merely protesting against the Government. 

There’s—— Mr. SCOTT. What does ‘‘solely’’ mean? 

Mr. BAKER. Solely means, in my mind, solely—the only reason. 

Mr. SCOTT. And if it’s mostly because of war protesting, but you 

got a little smidgeon of something else, it would be okay to get the 

information? 

Mr. BAKER. In theory, that’s what the language says. But——

Mr. SCOTT. Well, I mean in theory. I’m talking about the English 

language. Is that what the words say? 

Mr. BAKER. Yes, it does. 

Mr. SCOTT. Okay. 

Mr. BAKER. But, as I said, there are mechanisms in place and 

individuals in place to enforce the law, and it seems to me that the 

rule of law does not depend merely on writing down laws on paper. 

You have to have people——

88

Mr. SCOTT. What information do you present to the court to get 

a 215, to get 215 information? 

Mr. BAKER. We would present to the court information—because 

of the restriction that it can’t be based solely on first amendment 

activities. We would provide to the court in that situation and the 

pen register situation, where you have similar restriction, information to assure the court, as well as our office, that it is not based 

solely on protected first amendment activities, and we would also 

explain to the court why it’s relevant to the investigation. 

Mr. SCOTT. Are we coming back? Okay. 

Mr. COBLE. The gentleman’s time has expired. In order of appearance, the gentleman from Arizona, Mr. Flake. You’re recognized for 5 minutes. 

Mr. FLAKE. Thank you, Mr. Chairman. I thank the witnesses. 

Let me just follow up. Have any—with Mr. Wainstein, if you could. 

Have any 215 applications been denied by a judge? By a FISA 

Court? 

Mr. WAINSTEIN. I think actually the best person to speak to that 

would be Jim Baker because he actually appears before the FISA 

Court. 

Mr. BAKER. The answer is no. 

Mr. FLAKE. No? 

Mr. BAKER. The answer is no. 

Mr. FLAKE. Under what scenario could you see one actually being 

denied, given that the language actually says the judge shall issue 

the order. 

Mr. BAKER. In my experience, I mean if the court was not obviously what we were just discussing with Mr. Scott. If the court was 

not satisfied that there was a legitimate basis for this investigation, a legitimate foreign intelligence or protective basis, then it 

would deny it, and should deny it, if we filed such an application. 

Mr. FLAKE. But it says—the words used there are ‘‘shall.’’ Do you 

see a problem with that, and do you think that we in Congress 

ought to be concerned that we would have to rely, as you put it on 

individuals and their discretion at the Department of Justice or 

prosecutors? 

Mr. BAKER. Well, it’s not just the Department of Justice, it’s the 

court. It’s Federal district court judges sitting especially designated 

as FISA Court judges, but who are appointed for life——

Mr. FLAKE. But who are told by statute shall issue an order. 

Shall instead of should, might, use your discretion. Rather, it says 

shall. 

Mr. BAKER. In my dealings as a lawyer, I have never met a judge 

who’s just going to look at a blank request from the Government 

and not assure himself or herself that it’s consistent with the law 

and ask commonsensical questions about what it is the Government is trying to do, especially in FISA and especially with the history that we have with respect to how national security authorities 

have been misused in the past. We’re all very cognizant of that, 

and we all work very hard to make sure that doesn’t happen again. 

Mr. FLAKE. But shouldn’t we—I mean you’re then saying that 

you’re confident that a judge would ignore the statute that says he 

shall issue it, and actually defy it? 

89

Mr. BAKER. Well, shall—I mean let me just be clear. The word 

shall is not just found in 215 and in no other creature of Federal 

law. It is found in other provisions as well, and when the Government meets the statutory requirements of that statute or other 

statues, it directs the court to issue the order. 

Now, having said that, my experience again with Federal judges 

is that they look hard at any requests from the Government to do 

anything, especially intrusive activities. And the court is going to 

look at that. That’s why Congress put Federal judges into this process when they enacted FISA. 

Mr. FLAKE. Mr. Nojeim, would you comment on that? 

Mr. NOJEIM. What the statute says is that when the Government 

applies for 215 order, it must specify that the records that it seeks 

are sought for an authorized investigation. Once it makes that 

specification, the statute requires that the judge issue the order 

giving them access to those records. The debate ought to be about 

what the Government should have to prove to the FISA Court, 

not—and that you shouldn’t allow the statute to stay in its current 

condition that allows the Government to get these records merely 

when it makes the specification. Remember what’s happening here. 

There’s one party in front of the judge. And that one party need 

only specify. That’s it. 

Mr. FLAKE. Moving on just a bit. In testimony the other day at 

a hearing, it seemed as if—and I want to get your opinion on this— that an individual who is not the target of probe, who is on the periphery somehow could have information on a Internet server, for 

example, that he could be surveilled for a long period of time without knowledge that he was under surveillance; that the notice simply has to go to the Internet provider or the server and not the individual. Is that accurate, Mr. Nojeim, first? 

Mr. NOJEIM. Say it again? That the notice? 

Mr. FLAKE. That notice that surveillance is being conducted need 

not ever go to the individual? 

Mr. NOJEIM. Oh, no. No. The individual who is being surveilled? 

Mr. FLAKE. Yes. 

Mr. NOJEIM. Never knows. 

Mr. FLAKE. Never knows? 

Mr. NOJEIM. Right. 

Mr. FLAKE. And that could happen for a long period of time, over 

a couple of years, and under the current law, they need not be ever 

notified that they are under surveillance? 

Mr. NOJEIM. That’s right. They would never be notified. 

Mr. FLAKE. Okay. 

Mr. NOJEIM. And if I could just follow up on part of the discussion earlier? This notion about exempting libraries from the coverage of section 215. 

Mr. FLAKE. I was going to get to that. 

Mr. NOJEIM. We have to remember that 215 and National Security Letters also apply to Internet Service Providers. The Government says that the library is an Internet Service Provider. But it 

can use its Internet Service Provider authority to get those records 

without having to go through section 215. In other words, if you exempted libraries from section 215, the FBI could still serve a National Security Letter on the Internet Service Pprovider that is 

90

serving the library and get those records using that authority, and 

it wouldn’t even matter that the library had been exempted from 

section 215. 

Mr. FLAKE. But you have not—just to clarify—you or your organization has not asked for an exemption for libraries? You simply 

asked for a more rigorous standard that’s applied before appearing 

before a judge? 

Mr. NOJEIM. That’s right. 

Mr. COBLE. The gentleman’s time has expired. And, as I said, 

we’ll have a second round. The distinguished gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I appreciate the witnesses’ testimony. 

How many convictions based on terrorist activity have we had in 

the United States since 9/11? I’ll start with Mr. Wainstein? 

Mr. WAINSTEIN. Yes, sir. Thank you. I don’t have——

Mr. CONYERS. I understand. 

Mr. WAINSTEIN.—off the tip of my tongue an exact number, but 

I have actually—I know this question has come up, so I had a listing of various—— Mr. CONYERS. Sure. What number? 

Mr. WAINSTEIN. I came up with about a dozen or so. 

Mr. CONYERS. Okay. I’d like to see you afterward to find out how 

your list compares to mine. 

Mr. WAINSTEIN. And keep in mind, that’s not a total list. 

Mr. CONYERS. No. It’s not. 

Mr. WAINSTEIN. It’s just the cases that occurred to me as being 

terrorism cases that I—— Mr. CONYERS. Well, I’m in the process of trying to find this out. 

This is probably the most elemental question that we could be talking about. 

I asked you this already once, Mr. Baker, didn’t I? 

Mr. BAKER. Yes, sir, last time. 

Mr. CONYERS. What number do you have? 

Mr. BAKER. I don’t—I didn’t count. 

Mr. CONYERS. You didn’t count. 

Mr. BAKER. I was just able to come up with—you asked—I think 

if we—if there had been any convictions, and I think—— Mr. CONYERS. All right. 

Mr. BAKER.—the answer was yes. But I believe that the Department, the Criminal Division, of the Department, would be the most 

likely place to have that kind of information. 

Mr. CONYERS. Thank you. Mr. Khuzami, what number do you 

have? 

Mr. KHUZAMI. I’ll defer to my Department of Justice colleagues. 

Mr. CONYERS. Okay. 

Mr. KHUZAMI. I do not have a number. 

Mr. CONYERS. All right. Director Nojeim, how many do you have? 

Mr. NOJEIM. I’d be happy to get back to you, Congressman. 

Mr. CONYERS. Okay. All right. 

Mr. NOJEIM. But let me just point out that it’s important that 

when we’re reporting numbers of convictions that we actually look 

at what the person was convicted of. 

Mr. CONYERS. Well, exactly. 

91

Mr. NOJEIM. Often the Department says that somebody was convicted of terrorism in connection with a terrorism investigation, 

when really the conviction is about a very minor crime. 

Mr. CONYERS. Precisely. Well, I want to tell everybody and put 

it on the record that I’ve got four that I would be willing to—that’s 

a number I would stand behind. But somewhere in our Government, and I’ll take your suggestion, Mr. Baker, to check with who 

you referred us to. 

Now, let me ask if there’s any witness here that has any objection—well, I don’t—I guess I know the answer to this question already. All of the witnesses except one wants to make section 206 

permanent; is that right? Right? 

Mr. BAKER. Yes. 

Mr. WAINSTEIN. Yes, sir. 

Mr. CONYERS. Okay. Then I have to ask Mr. Nojeim what’s the 

case for more safeguards and what would they be and why 

shouldn’t we have, and why should we discontinue the use of simultaneously both John Doe wiretaps and roving wiretaps? 

Mr. NOJEIM. We’re not asking that you repeal section 206, the 

roving wiretap provision of the PATRIOT Act. What we ask is that 

you conform it to the corresponding provision in the criminal code. 

Doing this would entail requiring that the Government specify in 

its application for a wiretap either the identity of the person who’s 

phone or computer would be tapped or to specify the facility that 

would be tapped. 

It would also entail borrowing from the criminal code the ascertainment requirement that helps focus law enforcement eavesdropping on conversations to which the target is really a party. 

Doing these two things would conform the intelligence roving wiretaps to the criminal roving wiretaps and would go a long way toward protecting the privacy of Americans engaging in innocent 

telephone conversations. 

Mr. CONYERS. Finally, we’ve been trying to get information about 

these numbers. The only time we get cooperation from the Government, namely DOJ and the FISA people, is when there’s an expiration of a provision, and then we get some numbers. Other than that 

we get stiffed for—what is it—three years we’ve been trying to engage in a discussion, and it was off the charts, and I just want to 

put on the record that this amounts to me to misclassification, because there’s been no accounting for the wiretaps, the National Security Letters, and then all of a sudden when seeking reauthorization, we can get the numbers. 

And I think, Mr. Chairman, that’s an abuse of power on the part 

of the Executive Branch that handles this kind of activity. Does 

anybody want to defend the Government on that score? Mr. Baker? 

Mr. BAKER. Yes, sir. I’d be happy to. On a regular, on semi-annual basis, we provide to the intelligence committees of both 

Houses of Congress a very lengthy report full of all the numbers 

you could want quite frankly. It’s a very, very long report, with a 

lot of data in it that is available at the committees’, the intelligence 

committees, and, as I understand it, Members of Congress and 

cleared staff can have access to that. So we provide those numbers. 

We also provide less highly classified reports, with admittedly less 

92

information in them to, I think, both the Judiciary and Intelligence 

Committees of both Houses of Congress. 

Mr. CONYERS. Well, all somebody had to do was put it in a letter 

to us saying go see the right agency. We’re loaded with. You got 

more information than you could ever use, but we get stiffed. 

Now, I’ll take it up with the staff and the Subcommittee as well 

but I’m glad you’re telling us that it’s really available if we can get 

cleared. 

Mr. BAKER. And I come up regularly. I was up I think last week 

in front of the House Intelligence Committee to come up and do 

staff briefings and explain the numbers and provide additional details. So I’m happy to do that at any point in time. 

Mr. NOJEIM. Mr. Conyers? Mr. Conyers, the Department reports 

every year the number of full FISA wiretaps and physical searches 

that it does. And it does that without any risk to national security. 

It could—and those are much more intrusive searches than our—

than the searches under section 215 and than our National Security Letter requests as well. 

This is what we got when we filed a Federal Freedom of Information Act request for information about the use of National Security 

Letters. It is page after page after page of blanked out information 

that seems to suggest that National Security Letters are being 

used, but that you can’t really tell that they are or how often they 

are being used. 

We would suggest that more reporting could be done on National 

Security Letters. 

And I’d like to submit this for the record, and the letters that the 

Attorney General—I’m sorry that the Department of Justice—has 

provided over the last 2 years about even more intrusive surveillance. 

Mr. COBLE. Without objection. 

The gentleman’s time has expired. 

Mr. CONYERS. Thank you. 

Mr. COBLE. The gentleman—the distinguished gentleman from 

Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and once again I appreciate the opportunity for these hearings. It’s very helpful. 

I was a little surprised, and I want to be sure about this, but did 

I understand that you know the U.S. Attorney’ office knows or intelligence knows that the hijackers actually did use the library of 

the State college in New Jersey to make airline reservations for 

flight 77? Did I understand that correctly? 

Mr. WAINSTEIN. Sir, the—what I stated earlier is that two of the 

hijackers used computers at that New Jersey library. They did review and order airline tickets. The airline tickets they ordered were 

not the airline tickets for the flight on September 11th. Those were 

ordered on some other computer somewhere else. They did review 

their reservations——

Mr. GOHMERT. I see. 

Mr. WAINSTEIN. The September 11 reservations on that computer 

in that library on August 30 of 2001, 11 days before the attacks. 

Mr. GOHMERT. There had been discussion about the gag order. 

Would it be appropriate to have at least a one-sided gag order 

where the Government does not reveal, but if the individual target 

93

wishes to reveal that he or she could do so? I’m interested in each 

of your responses? 

Mr. BAKER. Well, I believe what the Department has supported 

in general is an amendment to the section 215 that would allow the 

recipient of the order, which remember is most likely a third party. 

We’re unlikely to serve a 215 order on the target of the investigation, but that—we would serve it on a third party and that third 

party then could consult with their attorney to discuss whatever 

legal action they want to take or compliance of whatever other 

matters they want to discuss. 

So we would support some kind of an amendment to address 

what’s been referred to as a gag order in that regard. 

Mr. GOHMERT. So that would basically be a one-sided gag order, 

where the Government would not reveal, but the recipient could; 

is that correct? 

Mr. BAKER. The recipient could reveal to his or her attorney or 

to the company’s attorney, whatever it is. They could have a meaningful discussion with their attorney to get legal advice on this 

issue. 

Mr. GOHMERT. So it is currently the law you’re telling me that 

somebody gets this order. They can not even talk with an attorney 

about it? 

Mr. BAKER. On its face, that’s what it says. The Department has 

already taken the position that they could talk to their lawyers 

with respect to this—with respect to receiving one of these items, 

but that is what the law says. And that’s why we would support 

clarifying that specifically. 

Mr. GOHMERT. But your position is only that it be extended to 

consultation with an attorney or someone of that nature, not that 

they could go public with it? 

Mr. BAKER. No. Certainly, I mean we don’t want the target of the 

investigation, who is a spy or terrorist, to find out we’re looking for 

documents about them. 

Mr. NOJEIM. Mr. Gohmert, we agree with that. We would add 

one more thing and that is that to satisfy the court that struck 

down the National Security Letter statute that applies to Internet 

Service Providers, to satisfy that court, you would also need to time 

limit the gag. It would have to expire after a time certain. And I 

think that that could be done; that the time could be a lengthy one. 

In the Senate version of the SAFE Act, to which I referred earlier, 

has I believe a 6-month time limit on the gag. 

I’d also like to submit for the record a copy of the form of a National Security Letter so that people can see exactly what these 

look like. They have very compelling language. You get the letter. 

You must turn over the documents, and you can’t tell anyone that 

you got the letter, and we would support the amendment that was 

discussed earlier. 

Mr. BAKER. Congressman, if I could just on this——

Mr. GOHMERT. Certainly. 

Mr. BAKER. On the time limit, I mean, to me I think that’s a very 

dangerous and bad idea quite frankly, because I mean some of the 

targets of our investigations, let’s be quite clear, are agents of a foreign power. What does that mean? That means in some instances, 

they are foreign government officials who we are investigating, and 

94

we want to obtain information about them, and I don’t think that 

anybody here thinks that they should deserve notice about what 

the United States Government is doing to investigate their activities. I just think that doesn’t make any sense. 

Mr. NOJEIM. Should the Government concede—— Mr. GOHMERT. Excuse me. Just a moment. 

Mr. NOJEIM. By the agency? 

Mr. GOHMERT. Just a moment. Let me follow up on that. What 

if there were a time limit, some might call it a sunset provision, 

where you’d have to come back in and re-justify the need to extent 

it further? 

Mr. BAKER. Well, I mean off the top of my head, that kind of—

come back to the FISA Court and try to justify it—that kind of idea 

makes more sense because there are some times when even if 

you’re investigating a United States person where the Government 

assesses that it makes more sense; we’re getting more intelligence 

information by leaving this person in place than by trying to take 

them out or arrest them or something like that. And so sometimes 

intelligence investigations can go on for a considerable period of 

time, and that’s appropriate and done under the scrutiny of the 

FISA Court. 

So I think that is an idea that I’m sure the Department would 

be willing to work with the committee on. 

Mr. GOHMERT. Mr. Nojeim, does that address your concern? 

Mr. NOJEIM. It does, and it is the approach that the Senate took 

in its version of the Safe Act, and we would support it. 

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

Mr. GOHMERT. Okay. I’m sorry. 

Mr. COBLE. We’ll have a second round, Mr. Gohmert. 

Mr. COBLE. The distinguished gentlelady from California, Ms. 

Waters. 

The distinguished gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate 

these hearings continuing on the oversight responsibility of the Judiciary Committee and if anybody doesn’t believe that we’re reviewing the PATRIOT Act, they ought to just look at the schedule of 

the committee and the Subcommittee. 

I’d like to get one thing, though, at least my response on the 

record. There was a use of a phrase a little while ago about abuse 

of power. And the suggestion was made that you in the Justice Department have failed in your responsibility to report to us. But, Mr. 

Baker, you’ve made it clear that you on a regular basis have to do 

those detailed reports to the House and the Senate Intelligence 

Committees; is that correct? 

Mr. BAKER. That’s correct. 

Mr. LUNGREN. Have you discharged that responsibility in the last 

4 years? 

Mr. BAKER. Absolutely. I have. When I first came to OIPR as an 

attorney assigned to do those reports—it’s very painstaking—and 

since then I’ve supervised the preparation. 

Mr. LUNGREN. Has there been a time in which those reports were 

not done to the relevant committees as required by law, both the 

House and the Senate. 

Mr. BAKER. No. We comply with the law in that regard. 

95

Now, I’m going to be frank. There are times—on the big semiannual report that I talked about that has all the details in it, we 

provide those on a timely basis. There’s times when on some of the 

other reports we’re slower than we should be. And we know that. 

We’re trying to address that, and it’s a question of resources within 

our office quite frankly. 

Mr. LUNGREN. I appreciate that. It’s just been experience when 

I served on the House Intelligence Committee that generally speaking—I’m not talking about any single member, but generally speaking the other Members of Congress don’t take advantage of the opportunity they have to look at that information. So I just want to 

make it clear that you have reported as required in the detail as 

required? 

Mr. BAKER. Yes, sir. 

Mr. LUNGREN. Secondly, have you ever heard of sleeper cells that 

they sometimes sleep longer than 6 months? 

Mr. BAKER. Sleeper. Well, without going into specifics about 

what we know about sleeper cells, I mean that’s the whole idea. 

They sit there until such time as, you know, the authority that has 

control of them activates them. 

Mr. LUNGREN. I understand. See here’s what I don’t understand. 

We passed these laws in response to a specific attack on the United 

States by those who wish to do us harm. A fatwa that issued in 

1999 that said it is the obligation of everybody who is the subject 

of the fatwa, the recipient of the fatwa, it is their obligation to kill 

every American anywhere in the world—man, woman, or child; belligerent or non-belligerent. That’s what we’re up against. We 

passed the law in that context, and sometimes I think we forget in 

what context we passed that law. 

Now, the claim was made that a judge has no discretion whatsoever, at least the impression was made that the judge has no discretion whatsoever under section 215 in the application, because it 

says shall. It says upon application made pursuant to this section, 

the judge shall enter a next party order as requested or as modified, approving the release of records. Followed by this language if 

the judge finds that the application meets the requirements of this 

section. And what are the requirements of this section? That there 

be an investigation quote ‘‘to obtain foreign intelligence information 

not concerning a United States person.’’ Correct? 

Mr. BAKER. Yes. 

Mr. LUNGREN. The judge has to make that finding. Correct? He 

has to check and make sure that what you say is in there? 

Mr. BAKER. That’s correct. 

Mr. LUNGREN. Or to protect against international terrorism or 

clandestine intelligence activities? 

Mr. BAKER. That’s right. 

Mr. LUNGREN. Provided that such investigation of a United 

States person is not conducted solely on the basis of activities protected by the first amendment of the Constitution. The judge is required to look at that, is he not? 

Mr. BAKER. Yes. 

Mr. LUNGREN. And you have to prove to his satisfaction that, in 

fact, that is the basis for the request; correct? 

96

Mr. BAKER. Under the law, the judge has to see and assure himself or herself that the certification is there. 

Mr. GOHMERT. Right. 

Mr. BAKER. But in my experience, this court, going back many 

years is very active in looking at and looking behind what the Government is presenting to it, and so I can assure you that that’s 

what happens, and as we’ve reported publicly in the report that 

was mentioned earlier, last year on the full content FISAs, the 

FISA Court made modifications, substantive modifications in 94 

applications. It’s a very active court. They look at what we’re doing. 

They’re very conscientious. 

Mr. LUNGREN. Now, as I understand the testimony, library 

records have not been accessed by resort to section 215? 

Mr. BAKER. That’s correct. 

Mr. LUNGREN. Even though we know now in retrospect that 

the—some of the hijackers in 9/11 utilized public libraries, their 

computers, for the various reasons you’ve talked about? 

Mr. WAINSTEIN. That’s true. We have not issued any 215 orders 

directed at libraries. Keep in mind, however, and there has been 

testimony over the last week or two about this, that we have had 

contact with libraries, and many libraries have actually voluntarily 

provided information to us over the years since 9/11 in relation to 

terrorism and criminal investigations. 

So we haven’t had to resort to 215 order. 

Mr. LUNGREN. See if some of the discussion I’ve seen in the public has suggested that somehow the Federal Government is so interested in going after libraries as if there’s no context in this. And 

I think a lot of American citizens would be surprised to know that 

9/11 hijackers utilize the libraries, and in retrospect, we wish we 

knew about that. In retrospect, we wish we’d been able to connect 

dots. Thank you. 

Mr. COBLE. I thank the gentleman from California. The gentleman from Massachusetts, Mr. Delahunt. 

Ms. Waters, did you want to reclaim your time? 

Ms. WATERS. Yes, I would like very much, Mr. Chairman. 

Mr. COBLE. The gentlelady from California. 

Ms. WATERS. I appreciate and thank you. I think we should continue on the discussion about the libraries. I just heard our witness 

say that you have not had to access information about people using 

the library. You have not had to resort to that, and you have not 

had to resort to informing a librarian that they cannot share that 

information or tell the party that maybe is being investigated. Is 

that true? 

Mr. BAKER. That is correct. We have not used this provision, section 215 for the purpose of obtaining information from libraries. 

Ms. WATERS. I see. I’m sorry. That’s not my understanding, and 

I have to go back and do a little research about the information 

that was—that alarmed us when we first learned about your ability 

to identify individuals who use a library and the materials that 

they seek in that library. My friend from California, my colleague 

on the opposite side of the aisle, indicated that he could not understand Americans who would be concerned about that. And he 

thought perhaps Americans may not have heard that some of the 

97

hijackers may have used the libraries in order to access information that may have been used in the attack. 

I think that many Americans heard that that was a possibility. 

I am one who’s adamantly opposed to librarians having to give information to law enforcement of any kind about who uses the library, when they use the library, and what subject matter they researched or read or had access to in the library. And it’s not because we’re not concerned about safety, and we’re not concerned 

about terrorism. America is a very special country, with a constitution that guarantees us privacy, and to think that you would be— your privacy would be invaded in the way that this section allows 

is alarming to some of us. 

And so I wish not to have the moment pass by having my colleague from California describe his understanding of this section 

and his lack of appreciation for why Americans would be concerned 

about this, and I wish to just share with you that I’m glad you 

have not had to use it. I’m going to research the information that 

I thought I had seen about your having used that, and I would oppose this continuously and forever because I think it is one of the 

most egregious violations of privacy to be targeted in the library. 

Mr. CONYERS. Would the gentlelady yield? 

Ms. WATERS. Yes, I will certainly yield to the gentleman. 

Mr. CONYERS. One of our problems, and I’m glad you’ve re-raised 

this subject is that you don’t need to use what is it—215?—to get 

to the libraries. You can get to the libraries through a National Security Letter, which is an administrative subpoena. And guess 

what? They won’t tell us how many of those letters they’ve used. 

And what we think has been happening is that they’ve been getting 

to libraries, not through 215, but through this other route. 

I have not raised that. I didn’t raise that question yet, and that’s 

why I praise you reclaiming your time. 

Mr. NOJEIM. If I could just put a little fine point on that? The 

Government could use a National Security Letter to get the records 

of a person’s use of the library computer, but they couldn’t use the 

National Security Letter to get records about what books the person checked out. So they could find out where the person went on 

the Internet, but not use it to get records about what they checked 

out of the library. 

Here’s where the real debate ought to be on this section. If the 

Government believes that Mohammad Atta has gone into a library, 

checked out a book, and that he’s an agent of a foreign power or 

foreign terrorist organization, they ought to be able to get records 

about that if they can show that they’re relevant to an investigation. They ought to be able to do that. 

The real debate is about whether they can go to the library and 

say, ‘‘Give us the records about what everybody checked out, because in that—inside of those many records will be information 

that’s relevant to our investigation.’’ And what we’re saying is focus 

on the agent of the foreign power, but leave the records that pertain to innocent people alone. 

Mr. COBLE. The gentlelady’s time has expired. 

Ms. WATERS. All right. All right. 

Mr. COBLE. The gentleman from——

Ms. WATERS. Thank you. Thank you very much. 

98

Mr. COBLE. Mr. Wainstein may respond if you wanted to very—

do you want to respond? 

Mr. WAINSTEIN. I just wanted to point out that the Department 

has taken the position that the recipient of a 215 order can, in fact, 

challenge it if they think that it’s overly broad and oppressive, and, 

in that case, a library, if they really thought that we were overly 

broadly asking for all the records—the records of all of the readers 

in the library could, in fact, consult with their attorney and then 

challenge it in court. 

Mr. COBLE. Very well. The gentleman from Ohio is recognized for 

5 minutes. 

Mr. CHABOT. I thank the gentleman for his recognition. I’d just 

like to start out by reiterating something that my colleague from 

California, Mr. Lungren, mentioned before, and that’s that I sometimes read articles and hear my colleagues sort of loosely state that 

after we passed the PATRIOT Act, there has been essentially no 

oversight; that we’ve kind of turned the Federal law enforcement 

forces loose on the American public and all kinds of kind of wild 

allegations, but clearly Congress has been getting the reports. Now, 

who’s been reading these reports and whether we’ve been following 

up with our responsibilities in doing that is another matter. 

But we were pretty careful in crafting this legislation. We also 

put in that legislation the requirement that we come back and revisit this to see how this has actually been carried out over the 

past 3, 4, 5 years, and that’s what we’re doing now. And I want 

to commend the Chairman for holding these hearings, and we’ve 

had a significant number of these hearings; and I think the attendance has been pretty good on both sides of the aisle. Both Republicans and Democrats who have been here I want to commend them 

for doing that. 

But this is part of that oversight process, and I think when we 

passed the PATRIOT Act, we were very serious about exercising 

this oversight, and this is all part of that procedure and process. 

Mr. Nojeim, let me start with you. In your testimony, you point 

out that prior to the passage of the USA PATRIOT Act, roving 

wiretaps were available in criminal investigations, but not, of 

course, in FISA investigations. 

Leaving aside for a moment the two particular criticisms of section 206 contained in your testimony, do you agree with the other 

witnesses on the panel that roving wiretap authority should be 

available in FISA investigations? 

Mr. NOJEIM. We believe that roving wiretaps are potentially particularly intrusive and that for that reason, if Congress decides to 

make them available in intelligence investigations, it ought to include the same kinds of protections that it put for roving wiretaps 

in criminal investigations. 

Mr. CHABOT. Okay. Thank you. 

Mr. Baker, let me go to you next. In Mr. Nojeim’s testimony, he 

alleges that the Government can now issue John Doe roving wiretaps that fails to specify a target or a telephone. It’s my understanding, however, that a roving wiretap order issued be the FISA 

Court must specify a particular target, and that this target must 

either be identified or described. 

99

And furthermore, I’ve been told that the FISA Court must find 

that there is probable cause to believe that the identified or described target is a foreign power, agent of a foreign power, and may 

take action to thwart surveillance. Am I accurately describing the 

requirements set forth in FISA or is Mr. Nojeim’s allegation correct? 

Mr. BAKER. No. You’re actually—you’re accurately describing the 

requirements of FISA. We must provide the identity, if known, of 

the target or a description of the target, and then—and we have 

to establish probable cause to believe that that target is a foreign 

power or an agent of a foreign power. 

As I said earlier, those two terms are defined. It’s not—we don’t 

just make it up. They’re specifically defined in the statute, and 

when you come to a U.S. person, all of those definitions have a link 

to the criminal law of the United States. 

And in addition to that, then the court has to make the specific 

finding, as you suggest, that that target, that target, is engaging 

in activities that may have the effect of thwarting surveillance. 

Mr. CHABOT. And in Mr. Nojeim’s testimony, he also suggests 

that the section 206 of the USA PATRIOT Act lacks sufficient privacy safeguards, but he doesn’t mention the statutory requirement 

that each roving wiretap order issued by the FISA Court contains 

specific minimization procedures in order to limit the Government’s 

acquisition and retention and dissemination of information about 

Americans. 

Could you please discuss what minimization procedures are, and 

why they’re important, and whether you feel that these procedures 

adequately protect the privacy of our citizens? 

Mr. BAKER. In order to obtain a FISA Order in the first place, 

each application must include within it minimization procedures 

that are specifically approved by the Attorney General and that are 

reasonably designed in light of the purpose and technique that’s 

going to be used to protect against the acquisition, retention, and 

dissemination of non-pertinent communications by Americans. And 

these procedures have to be specific. They have to be reasonably 

designed in light of the need for the Government to obtain, collect, 

and disseminate foreign intelligence information, and then the 

court makes a finding, when it’s reviewing our application, that 

those minimization procedures meet the definition set forth in the 

statute by Congress. 

Once the court has made that assessment and the other assessments under the statute and determines that the order can be lawfully issued, the court grants us the authority and then it orders 

us to follow the minimization procedures. 

The minimization procedures are—there are standard procedures 

that exist that we use in just about every case. And then for particular circumstances, the court or the Government or both will 

craft specialized minimization procedures to address situations that 

come up where the intrusion in privacy might be higher, and you 

have to adjust accordingly. And so the court is very active in assuring itself before it issues an order that the minimization procedures 

are appropriate. 

Mr. COBLE. And the gentleman’s time has expired. And consistent with what the gentleman—Mr. Delahunt, I’ll give you just 

100

a minute. I just want to follow up on what the gentleman from 

Ohio said regarding our oversight. 

And the other day, at our hearing, Mr. Delahunt, you commented 

about the accelerated path that we are now pursuing. I hope that 

if any of these provisions are subsequently sunsetted, I would like 

to see the sunset occur at the conclusion of the calendar year of the 

second year of the Congress rather than the first year. That might, 

Mr. Delahunt, preclude our having to do this exercise again. 

The distinguished gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Thank you, Mr. Chairman. Just to follow up on 

that point. I think it was you, Mr. Wainstein, that said you encouraged this committee to make these provisions permanent. This 

really does go to the issue of oversight. I don’t want to get into the 

details of the various provisions at this point. 

But, Mr. Chairman, you know, as I participate in these various 

hearings, I’m becoming—I’m reaching the conclusion that if they’re 

not to be sunsetted, if they’re to be modified, if there are to be 

changes, or if there are—if they are just reauthorized as is, I think 

it’s very important that they not be made permanent; that these 

kind of hearings are positive and are absolutely integral in terms 

of our role as far as oversight is concerned. It gives us—I can—I 

dare say the gentleman from Justice would not be here but for the 

fact that there is a sunset provision. And maybe, just maybe, we 

ought to expand the sunset aspect of the PATRIOT Act to other 

provisions to give us a more—how shall I say—leverage in terms 

of our oversight function, and that is if nothing with that act 

changes. 

But the reality is, with all due respect, you know, dealing with 

the Department in terms of securing information without the leverage of the sunset is extremely difficult. It isn’t easy. And I think 

that is a sentiment that is shared on both sides and in other committees. And I have no doubt, Mr. Baker, that, you know, you take 

your role very seriously, and I’m sure that the career people that 

are working under your direction are people who act in good faith. 

But the system itself requires more than just checks and balances 

within the Executive Branch. 

And that’s why I put this idea out about as we reauthorize or as 

we address the sunset provisions to expand the sunset to the entire 

PATRIOT Act, to allow us to have a more significant role in terms 

of our responsibility and our review. 

Mr. BAKER. May I just respond briefly to that? 

Mr. DELAHUNT. Sure. 

Mr. BAKER. And I thank you for your comments. We do take our 

jobs very seriously. 

Mr. DELAHUNT. I know that. 

Mr. BAKER. And we do conduct—ourselves we conduct oversight 

of the activities of the FBI and the——

Mr. DELAHUNT. I understand. 

Mr. BAKER.—the intelligence committees. I mean intelligence 

community. And oversight it seems to me—effective oversight to do 

it—it’s a hard job—it’s a really hard job. You really got to roll up 

your sleeves and dig in and do a lot of work——

Mr. DELAHUNT. Right. 

101

Mr. BAKER.—and push, and get the information you need to satisfy yourself that what’s being done is appropriate and consistent 

with the law. 

I will tell you that even though I don’t agree with all their conclusions, the Senate Intelligence Committee audit staff conducted 

a very lengthy oversight or audit of the FISA process, and they’re 

finishing the report, and it was referenced yesterday, and that, I 

mean, I myself spent many, many, many hours with them discussing the process and so on. 

Mr. DELAHUNT. Right. 

Mr. BAKER. And they had access to everything. And that——

Mr. DELAHUNT. I’m running out of time. Here’s part of my problem, too, Mr. Baker, is that you reference the, you know, the reports to the Intelligence Committee. I don’t know, but does the Judiciary Committee that has, you know, jurisdiction over the Department of Justice—do we get those same reports? 

Mr. BAKER. I don’t pretend to understand all the rules of Congress, but——

Mr. DELAHUNT. Neither do I. 

Mr. BAKER.—as I understand it, those kinds of reports are available to Members of other committees. You go up and read it in the 

secure space of the Intelligence Committee, and then staff members 

who have appropriate clearances——

Mr. DELAHUNT. Okay. 

Mr. BAKER.—can go——

Mr. DELAHUNT. Well, again, another suggestion would be, Mr. 

Chairman, is when the time comes to have—that Justice report directly to this committee as well as the Intelligence Committee since 

we do have oversight. 

Part of the problem, Mr. Baker, is that the FISA Court—and I’m 

sure again—that these judges—you know, they’re really title III 

judges I understand that move over to the FISA Court—but there 

again everything is done in secret, obviously by necessity. But, as 

I said earlier in the week, part of the problem here is balancing the 

need for transparency versus the need for secrecy because of national security and the concerns that people have expressed about 

privacy and libraries, et cetera are part of that balance. And, you 

know, let me just ask one more question. 

I think the suggestions and the recommendations by Mr.—is it 

Nojeim? 

Mr. NOJEIM. Nojeim. Thank you. 

Mr. DELAHUNT. Nojeim. Are really reasonable. I don’t see the 

heavy burden that the adoption of those recommendations would 

put on the Government, and yet would, you know, accrue to the 

benefit of the American people in terms of their concerns about 

what’s happening behind closed doors, because it is happening all 

behind closed doors. We’ve got to provide more information and become more transparent. That’s difficult. I understand. But that’s 

the—I think the role of this committee working with the—you 

know, with the Department, and really thinking this thing through 

in a responsible way. Thank you. 

Mr. COBLE. The gentleman’s time has expired. We’ll get back on 

the second round, Mr. Baker. We’re going to have a second round. 

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The gentlelady from Texas has joined us. Ms. Jackson Lee, you’re 

recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and, 

Mr. Nojeim, I’m going to pose a series of questions for you, so ask 

mine, and then you can weave in your commentary. 

Let me first of all thank both the Chairman and Ranking Member of the Subcommittee. I know this is leading to the potential of 

the reauthorization of certain aspects of PATRIOT Act One, and, 

of course, also moving into PATRIOT Act Two. 

I am on record—I might as well as they say share it all for opposing PATRIOT Act One, and considering where we are today, on 

any aspects that are now being called to be reauthorized. 

As it relates to the next step, I’m on record for being enormously 

skeptical to the extent of moving past the 90 percent radar screen. 

It’s fair to make that acknowledgement. 

Let me share with you just a few comments and if you can point 

right back to libraries and access and the clear equation of invasion 

of privacy equals excellent security or absolute security. 

My recollection is that one of the reasons of the Founding Fathers fleeing from their previous nation site was this question of 

freedom. We did not devise the Bill of Rights in the 20th century. 

It was devised by early founders of this nation. And so it must 

have been something keenly part of the cornerstone of America. 

And that is unfortunately other than the recognition of the dignity 

and the humanity of slaves and women, freedom was a very, very 

serious in-depth infrastructure or fabric of our society. And we 

were willing to die for it. 

I recall after 9/11, one of the tools of so-called freedom or security 

was the registration of Pakistani males and others. My knowledge 

is that not one or barely one terrorist was found during that registration period, and quietly we ended it. So the question is, as we 

look toward our security, I happen to focus more on technology, security of the borders, preventing people who have untoward desires 

from coming into the United States, and also giving law enforcement the appropriate tools. 

Would you answer for me the fact of whether or not the complete 

invasion of one’s private e-mails, technology, library usage, et 

cetera is preventative of terrorism or is it simply a tool to make 

a case that you have the intent or the inclination or the background or the previous thought processes that might make you a 

terrorist? 

Mr. NOJEIM. We believe that when the Government has strong 

evidence that a person is up to no good, that they’re a terrorist, 

that they can get access to very private information about that person to help prove their case. 

Ms. JACKSON LEE. Already? Now? 

Mr. NOJEIM. That then can do it now and that they ought to be 

able to do it. When the Government has, for example, probable 

cause of crime that there’s—that a person is involved in crime and 

that in their house is evidence of that crime, they should be able 

to get a warrant and go into their house and find that evidence. 

The important thing to remember is that there are safeguards, and 

what the PATRIOT Act did was erode the safeguards. 

103

Our advocacy today and our advocacy throughout this debate has 

been about restoring some of those safeguards. One of the safeguards that we want to restore, besides judicial review and meaningful judicial review, is openness to the public about how particular powers are being used. And Mr. Delahunt was asking 

whether the committee gets reports about section 215. Indeed, the 

statute requires that the Attorney General provide to the Judiciary 

Committee a report setting forth the total number of section 215 

orders that it has applied for and the total number of such orders 

either granted, modified, or denied. 

It also has to provide similar information to the general public 

about FISA Orders—those full probable cause ‘‘that-the-person-isan-agent-of-a-foreign-power’’ orders that allow them to wiretap or 

break into a person’s home. It has to provide that same information 

about much more intrusive searches to the entire public, and we 

see no reason why the Government couldn’t provide that same information about the less intrusive section 215 searches to the entire public, especially given that the Attorney General has twice 

disclosed exactly that same information. 

Ms. JACKSON LEE. Mr. Baker, if I might just get an answer. 

What about those safeguards? Can you not live with the safeguards 

that the witness has just spoken about? 

Mr. COBLE. Would the gentlelady suspend just for a moment, Ms. 

Jackson Lee? Mr. Baker, if you would answer that very quickly. We 

have a vote on the floor, and we will come back, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. COBLE. We will come back for—Mr. Baker, if you will respond very quickly. 

Mr. BAKER. FISA—excuse me—FISA includes a number of reporting provisions, and I think that the Department has expressed 

a willingness to work with the committee to discuss whatever additional requirements might be appropriate, but we need to remember that we’re dealing with the national security, and so we have 

to always be consistent with that. 

Ms. JACKSON LEE. We’ll carry that on further. 

Mr. COBLE. The gentlelady’s time has expired. 

Ms. JACKSON LEE. Thank you very much. 

Mr. COBLE. And the panelists, if you all will just rest ways. 

Hopefully, we’ll be back imminently. I’m thinking 10 minutes probably at the most. Thank you. 

[Recess.] 

Mr. COBLE. I apologize to the panelists. Sometimes these best 

laid plans of mice and men, you know, sometimes go awry. And to 

compound the confusion, as I told you all earlier, this—we must 

make this hearing room available to the Courts and Intellectual 

Properties Subcommittee. So we’re going to have to adjourn about 

quarter ’til twelve to let them wrap up. So but for everyone’s information, we will keep the record open for 7 days. And we can communicate with you all. You all can communicate with us. 

So we’ll start our second round, and maybe try to make the 5-

minute rule, maybe a 2-minute rule just to get around. 

Mr. Nojeim, you wanted to respond to Mr. Wainstein. Did you 

ever do that after the first round? If you did not, I’ll let you do that 

now. 

104

Mr. SCOTT. I think he did. He did. 

Mr. COBLE. All right. Bob—Mr. Scott says that he thinks that 

you did. 

Mr. NOJEIM. Okay. 

Mr. COBLE. Did you want to respond to what he said, Mr. 

Wainstein. I don’t remember. 

Mr. WAINSTEIN. I don’t remember what he responded to—— Mr. COBLE. Okay. 

Mr. WAINSTEIN.—to whatever I said. 

Mr. COBLE. Well, we’re being fair and balanced here in any 

event. Let’s see what we do here. 

Mr. Baker, even if the Government is not sure of the actual identity of the target—I’m talking roving now—does FISA, nonetheless, 

require the Government to provide a description of the target of the 

electronic surveillance to the FISA Court, A. And, B, how difficult 

is it to identify international terrorists and foreign intelligence 

agents by name? 

Mr. BAKER. Yes. The statute requires us to either provide the 

identity or a description of the target, and based on whatever we 

provide, on that factual basis, the court has to be able to make the 

other findings that the statute requires, including probable cause 

to believe that the target is an agent of a foreign power. So the answer is there has to be a target, and the court has to be able to 

make some findings with respect to that target. 

Mr. COBLE. I want to thank you, sir. Mr. Khuzami, do you believe that with section 206 of the USA PATRIOT Act, foreign intelligence investigations can be more—can more effectively gather 

critical information with the purpose of preventing a massive disaster not unlike September 11th, and how would the antiquated requirement of 1986 impede the successful prevention of terrorist attacks today? 

Mr. KHUZAMI. Well, I think it’s——

Mr. COBLE. Your mike is not on, Mr. Khuzami. 

Mr. KHUZAMI. Sorry. Yes. I—you know, the roving wiretap authority is critical because you don’t always have the ability to identify in advance what communications facility the target might use, 

and you can lose very valuable intelligence and information in that 

interim period, either before you know what facility is going to be 

used or before you can ascertain their identity. And I frankly think 

that given the remainder of the protections in that statute that not 

making those requirements is an entirely proper balance of individual rights, but at the same time ensures that we protect national security. 

Mr. COBLE. I thank the gentleman. Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. First, did somebody say 

that no part of the PATRIOT Act has been found unconstitutional? 

Let me ask it another way. Has any part of the PATRIOT Act 

been found unconstitutional. 

Mr. BAKER. I believe the answer to that question is no. I—specifically a provision of the PATRIOT Act. Material support. I take that 

back. There’s a material support provision. 

Mr. SCOTT. That’s been found unconstitutional? 

Mr. BAKER. Mr. Wainstein can speak on that. Yeah. 

Mr. SCOTT. Any other part? 

105

Mr. NOJEIM. There are two provisions. 

Mr. SCOTT. Wasn’t 505(a)? 

Mr. NOJEIM. There are two provisions that have been found unconstitutional. The first is the material support provision as it relates to expert advice and assistance. And the second is section 

505(a), National Security Letter provision, as it applies to Internet 

Service Providers. 

And I’d like to illustrate that if I could. Section—what the PATRIOT Act did was to amend section 505(a), and the first poster 

that I’ll show here shows what—I’m sorry. What the PATRIOT Act 

did in section 505(a) was amend 18 U.S.C., section 2709, which is 

the National Security Letter provision that applies to Internet 

Service Providers. This is 18 U.S.C., section 2709 before the PATRIOT Act. 

This is how section 505(a) of the PATRIOT Act amended section 

2709. That which is in yellow was added. That which is crossed out 

was deleted. 

As you can see, it rewrote this statute. And the last poster shows 

what’s left of this statute after the court in Doe v. Ashcroft struck 

it down. It stuck down not only what was in the statute before the 

PATRIOT Act, but it struck down every single word of section 

505(a) of the PATRIOT Act. 

So we believe that this illustrates how that particular section of 

the PATRIOT Act was ruled unconstitutional. And I should add the 

changes that we’re advocating to section 505 of the PATRIOT Act 

would bring into line with that court decision so that it could—National Security Letters could again be used. 

Mr. SCOTT. Okay. Now, we—on section 215 you’ve got to get a 

warrant, but we’ve ascertained that this is not limited to crimes or 

terrorism. It includes foreign intelligence as well as terrorism and 

everything else so that you don’t need probable cause of a crime. 

When you get the records—a suggestion has been that if it’s overly 

broad, somebody can challenge it, but the target doesn’t know 

you’re going after, and there’s no real challenge from the recipient 

of the warrant because after there’s a specification—I think we’ve 

ascertained that the judge doesn’t have a whole lot of discretion—

doesn’t have any discretion. Once the specification has been made, 

the judge shall enter the warrant. The person who gets the warrant is gagged, so they can’t—I mean there’s not a whole lot they 

can do. 

So is there any meaningful challenge that a recipient, the one 

that gets the warrant and has to turn over the records, is there any 

meaningful challenge that they can muster up? 

Mr. WAINSTEIN. Yes, sir. As has been stated here and in other 

hearings with Department witnesses, the Department has acknowledged that the recipient of a 215 order can consult with an attorney despite the non-disclosure requirement, and can challenge that 

order——

Mr. SCOTT. Wait a minute 

Mr. WAINSTEIN. Order and process. 

Mr. SCOTT. You mean you’re not enforcing that part of what’s 

written in the law? 

Mr. WAINSTEIN. The non-disclosure requirement? 

Mr. SCOTT. Right. 

106

Mr. WAINSTEIN. We—the Department has taken the position in 

litigation that as written that means that a person, though he or 

she cannot disclose it to anybody else, can disclose the fact of the 

order to an attorney. 

Mr. SCOTT. It’s not written that way. We’re just interpreting it 

that way. 

Mr. WAINSTEIN. Yes. And the Department has stated that it 

would agree with the clarification to that effect. But that person 

can, in fact, challenge. The recipient of that order can challenge it 

before an article III judge. 

Mr. SCOTT. Now——

Mr. COBLE. Mr. Scott, would you suspend just a minute? Since 

the gentleman from Texas and the gentleman from California have 

gone to the trouble to come back, if you could wrap up, Bobby, then 

we’ll recognize them. We’re going to have to blow out of here at 

quarter ’til twelve. 

Mr. SCOTT. Okay. Let me just stop right there. 

Mr. COBLE. I appreciate that. Since you all came to the trouble, 

I want to recognize Mr. Gohmert. 

Mr. GOHMERT. Okay. Thank you, Mr. Chairman. I’ll be quick, as 

quick as I can be. 

Let’s see——

Mr. COBLE. Thank you, Bobby. 

Mr. GOHMERT. Mr. Wainstein, I believe you were the one that indicated earlier the Department has taken a position that a recipient under 215 order could challenge, I believe, the breadth of the 

request or the scope of the request; is that correct? 

Mr. WAINSTEIN. Yes, sir. 

Mr. GOHMERT. Well, and it left me wondering. You said that’s 

the Department’s position because of the language. In your opinion 

could the next Department of Justice take a different position? 

Mr. WAINSTEIN. Well, my understanding is the Department has 

taken that position consistent with all the witnesses who have appeared over the last few weeks, and I believe we’ve stated on the 

record that we would be supportive of a clarification of the law to 

that effect. 

Mr. GOHMERT. Okay. That’s what I wanted to be sure of. It was 

my concern that that might not be the case with another Administration if we did not clarify, and having signed orders or had hearings myself as a judge, when people came back and you saw that 

the scope was going too far a field, it seems to me pretty important 

that that be there for future Justice Departments that we may be 

concerned about. So you don’t have a problem with that, either—

clarifying the scope—that the scope could be challenged? 

Mr. WAINSTEIN. The—It could be challenged. Yes, I think there’s 

a variety of different challenges they could bring—it could be challenged in terms of the actual language. I don’t know that that’s 

been determined yet. 

Mr. GOHMERT. Okay. Do you have anything further on that? 

Mr. NOJEIM. Just that I think we should codify the person’s right 

to challenge, and I should also add that the Department of Justice 

didn’t always take the position that a person could consult with the 

attorney. They took that position after we sued them because peoVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00110 Fmt 6601 Sfmt 6601 G:\WORK\CRIME\042605A\20875.001 HJUD1 PsN: 20875
107

ple were wanting to consult with ACLU attorneys about a National 

Security Letter that was received. 

Mr. COBLE. The gentleman——

Mr. GOHMERT. Okay. 

Mr. COBLE. Well, very quickly, Mr. Gohmert, and then I want 

to——

Mr. GOHMERT. All right. So——

Mr. COBLE.—and then I want to recognize Mr. Lungren. 

Mr. GOHMERT. It sounds like Catch-22. They consult you about 

getting an order that they were not supposed to consult you about 

so it could be challenged. 

Mr. NOJEIM. That was the issue. I mean they didn’t know whether they could talk to anybody about it, and it was only after the 

litigation started that the Department of Justice started publicly 

taking this position. 

Mr. GOHMERT. So obviously, they did let somebody know, even 

though that was a concern. But I understand your position. Thank 

you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. Mr. Lungren, we have to vacate this room in about 3 minutes, and you’re recognized as the 

final examiner. 

Mr. LUNGREN. Well, that’s a lot of pressure, Mr. Chairman. I just 

wanted to mention for the record that when we were talking about 

libraries, not only are we talking about those that use libraries 

that have already been mentioned, but the 9/11 Commission Report 

talked about Marwan Al-Shehhi and other members of the group 

that quote ‘‘used to frequent a library in Hamburg, Germany, to 

use the Internet.’’ A Washington Post article, September 30, 2001, 

explained that another hijacker came from a poor Saudi family, but 

said quote ‘‘was facile enough with computers so he could use the 

Internet at a Del Ray Beach public library.’’ I mean there is testimony that Deputy Attorney General James Comey before the Senate Judiciary Committee indicated the use of the New York Public 

Library by one of the hijackers. 

So the only point I’m trying to make is that we didn’t create this 

out of whole cloth. We have utilized investigative techniques for the 

purpose of trying to respond to the threat that is out there. And 

while we may tweak this law with respect to some of the suggestions that have been made here, the underlying law it seems to me 

is appropriate. So long as Congress continues with oversight, it is 

something that is necessary for the protection of this country. And 

I just hope that some of the—sort of the general gloom and doom 

that I see surrounding some of this is out there, and also some of 

the hyperbole utilized by some of the people in the library profession I don’t believe is very helpful. 

And when I read something such as a comment by Cindy Czesak, 

the director of New Jersey’s Paterson Free Public Library, where 

she told Fox News that her institution collects every complete computer sign-up sheet. After that, it’s removed and destroyed. We 

bought a new shredder. We’re quite rebels. 

Rebels from what? Thank you, Mr. Chairman. 

Mr. COBLE. I thank you. And, Mr. Scott says he wants to be the 

final examiner, so I’ll let him put a couple——

108

Mr. SCOTT. Well, I think since we’re pressed for time, let me just 

articulate some concerns—back to the 215. 

One of the problems we have is information obtained is not, as 

Mr. Nojeim indicated, not just information on the target. You go 

into the library. If Mohammad Atta had used the library, you can 

go and get everybody’s library records as I understand it. You can 

get massive amounts of information. I understand in one situation 

somebody got—I don’t know whether it was under 215 or some 

other—you got 300,000 records of people visiting Las Vegas. 

Now, some of this kind of information may be relevant. If you got 

certain cities somebody’s been in, it would be nice to know who has 

been in these five cities, on these specific dates, that could be a 

fairly small list, if you get millions of pieces of data. What happens 

to the information after you’ve used it? After you’ve run the tape, 

what happens to the information, and particularly when you have 

in here that it could be mostly in violation of first amendment 

rights? If it’s not solely because of first amendment violations. 

So if you got a list of the war protesters, you want to—that’s a 

bit troublesome. 

On the roving wiretap, we know that you can start this thing out 

without probable cause of a crime. There’s no ascertainment requirement, and the Attorney General didn’t want to agree to ascertain that the target was actually in the place where your listening 

in. And I think we’re hearing that there is some judicial discretion 

as to whether or not the roving wiretap can be issued. I’m not sure 

how much of that discretion is related to the minimization, but 

that might be something we would look to. 

But, Mr. Chairman, because we—and I keep harping on this— these—foreign intelligence is not just criminal terrorism activity. It 

can be anything that will help us in the conduct of our foreign affairs, which doesn’t have to be anything relating to crimes at all. 

So we still have some concerns, and we’ll pursue this in our additional hearings. 

Mr. COBLE. I thank the gentleman. Folks, the bad news is that 

we are irregular in our scheduling today because of the next meeting. The good news is the record will be open for 7 days, and you 

all feel free to communicate with us as we will with you all. 

We thank the witnesses for their testimony today. In order to ensure a full record and adequate consideration of this important 

issue, the record will, as I said, be left open for additional submissions for 7 days. Written questions that any Member wants to submit should also be submitted within that same 7-day period. 

This concludes the oversight hearing on the implementation of 

the USA PATRIOT Act, Foreign Surveillance Intelligence Act 

(FISA) Part II. Thank you for your attendance, and this Subcommittee stands adjourned. 

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman, for holding this hearing on the issues before us today. 

In a context where we have broken down the traditional wall that existence foreign 

intelligence gathering, particularly foreign intelligence, and criminal proceedings, to 

give the government broad authority to collect and share information, mostly secretly, I am concerned that we have also blurred the traditional line of protection 

for our privacy and freedoms. 

While I agree that some lifting of the traditional restrictions in this area were 

justified, to induce the government to better use the authorities it already had in 

many instances, I am also mindful that those restrictions were placed there for a 

very good reason. We have seen with ‘‘COINTELPRO,’’ Watergate, the FBI spying 

on Dr. Martin Luther King, Jr., and with other incidents, what abuse can occur 

when we do not keep a tight enough reign on the government’s use of extraordinary 

powers. We shouldn’t have to experience those problems again to ensure that such 

abuses do not occur. 

Some of the provisions today reflect a trend that is troubling to me—the trend 

of the government to justify an ever increasing extension of extraordinary powers 

based on its convenience. We are considering time frames for surveillance operations 

that we have been extended even more since their PATRIOT Act extensions, all because the government says it is too costly for it to have to justify extensions to a 

court, even under the low burden of the FISA Court. If we can commit to speed billions of dollars in prison and other law enforcement costs just to codify sound bytes 

urged by the Department, we can certainly spend the time and expense it takes to 

assure that our privacy and freedoms are not unduly abridged. 

Mr. Chairman, I believe that it is important that we be AND maintain our privacy and freedoms. I don’t believe we should operate under the premise that we 

have to give up or balance one against the other. So, Mr. Chairman, look forward 

to the testimony of our witnesses on the provisions before us to learn more about 

what use is being made of the extraordinary powers authorized and whether sufficient oversight is being undertaken such that the powers are used in a way to protect our safety as well as our privacy and freedoms. Again, I thank you for putting 

together this hearing on these important matters. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

The provisions we’re discussing today, like the PATRIOT Act itself, range from 

nonpolitical technical amendments to questionable infringements on court authority. 

I look forward to hearing from the witnesses about all of them. 

I look forward to hearing from the Justice Department about why Section 207 

should be reauthorized and allow secret surveillance for up to a year. Part of the 

justification for allowing the extraordinary intrusions under the Foreign Intelligence 

Surveillance Act is the extensive judicial oversight by the FISA court. This section 

takes that reasonable oversight away and gives the Justice Department authority 

to surveil suspects long after the relevant facts have expired. While the paperwork 

may be burdensome, a violation of a person’s very privacy is more so. 

I also look forward to hearing why Section 214 should be reauthorized. Pen register and trap and trace orders no longer need to be aimed at a agent of a foreign 

110

power under this provision, and are available under the vague standard of ‘‘relevance.’’ This is even more troublesome in light of how the PATRIOT Act has permanently expanded these orders to allow the government to record the websites a 

person visits and addresses and subject headings of the emails he sends and receives. 

Also, I hope this hearing thoroughly discusses the lone wolf provision, also set to 

expire this year. FISA allows the secret surveillance, search and seizure only because it is necessary to protect us from foreign powers. To expand FISA to apply 

to those who by definition have no connection to foreign powers starts our law enforcement down a slippery slope. There is no telling where it might end.

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LETTER FROM JAMIE E. BROWN, ACTING ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, DATED APRIL 30, 2003, TO THE HONORABLE ORRIN HATCH, 

CHAIRMAN, COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE


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LETTER FROM JAMIE E. BROWN, ACTING ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, DATED MARCH 5, 2003, TO THE HONORABLE ORRIN HATCH, 

CHAIRMAN, COMMITTEE ON THE JUDICIARY, UNITED STATES SENATE


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LETTER FROM DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT

OF JUSTICE, DATED JULY 31, 2002, TO THE HONORABLE BOB GRAHAM, CHAIRMAN, 

SELECT COMMITTEE ON INTELLIGENCE, UNITED STATES SENATE, AND THE HONORABLE RICHARD C. SHELBY, VICE-CHAIRMAN, SELECT COMMITTEE ON INTELLIGENCE, 

UNITED STATES SENATE


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PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman, for holding this hearing on Sections 206 and 215 of 

the USA PATRIOT Act. These are some of the more controversial sections of the 

bill that up for renewal consideration. They are controversial because of the extraordinary extent of virtually unchecked powers they allow the government to use to 

invade the privacy of individuals. Section 215 is particularly disturbing, given its 

breadth of authority it allows for law enforcement officers to obtain private records 

on no more that representation that it is relevant to foreign intelligence or international terrorism for espionage. 

And even though section 505 of the PATRIOT Act is not under a sunset, you really can’t talk about the problems with 215 without discussing the same problems 

with 505. Section 505 allows a host of private records and information to be obtained through the issuance by line level officers of National Security Letters 

(NSL’s)on the mere representation they are relevant to an investigation of foreign 

intelligence, international terrorism, or espionage. There need be no crime, no probable cause, no reason to believe, no credible or particular facts—just a representation in the case of 215, and the FISA court has no choice but to issue the order 

for the production of the records. And in the case of NSL’s, there is no court 

issuance or oversight—just the line officer’s issuance, in terms of the requirements 

of the law. 

For both 215 and 505, all of this is done in secrecy with no explicit right to challenge the orders and with permanent gag orders on the keepers of the records 

sought, even to the extent of consulting with an attorney. And with our liberalized 

information sharing rules, the information obtained can be distributed all over town. 

This means your neighbors who are law enforcement agents may know a lot more 

about your private medical, organizational affiliation, reading and video viewing activities than you ever imagined. 

With respect to section 206, FISA roving wiretaps, I have often noted the difficulties I see. Again, under the law, no crime need even be alleged, and under the ‘‘John 

Doe’’ wiretap, no person or particular device need be shown, and in either case, no 

effort has to be made to ascertain whether the target is actually using the device 

before communications can be intercepted. And, again, all of this is in secret in a 

secret court with limited oversight and reporting requirements when compared to 

criminal wiretap processes. Department of Justice witnesses often use the powers 

extended on the criminal court side to justify the same powers on the FISA side. 

However, they don’t call for the same oversight and reporting requirements as on 

the criminal side, and I think that’s where we need to pay a lot more attention in 

considering renewal of these powers. 

So, Mr. Chairman, I look forward to the testimony of our witnesses for enlightenment on why we should consider renewing these extraordinary powers and under 

what circumstances and conditions. And I look forward to working with you on implementing their recommendations. Thank you. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

Today we will hear testimony on two of the most controversial sections of the PATRIOT Act. I look forward to hearing why the Justice Department must have these 

provisions reauthorized wholesale without any safeguards put in place to make sure 

that rights of suspects are not abused. 

Section 206 creates roving ‘‘John Doe’’ wire taps. We will most likely hear testimony today that this provision is already widely used in criminal investigations. 

However, I am unaware of a court sanctioning a roving wiretap without a clearly 

identified target. I hope to hear where exactly this authority is coming from to better understand how the Justice Department is using its new authority. I also expect 

the Justice Department to explain why it believes it should be able to use criminal 

investigation techniques in intelligence investigations, without supplying the parcel 

of rights and procedures that have always gone along with those techniques. 

Section 215 allows the government to secretly get any thing from any business 

only upon the showing of relevance to a terror or intelligence information. The Justice Department, in its usual shroud of secrecy, refuses to explain how this section 

has been used. It will only confirm that it has been used 35 times, and not against 

libraries. This information comes on the eve of the sunset, after three years of pressVerDate 0ct 09 2002 15:52 Jun 24, 2005 Jkt 000000 PO 00000 Frm 00130 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\042605A\20875.001 HJUD1 PsN: 20875
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ing national security that required a secret classification. Without more information, 

I say: too little, too late. 

While National Security Letters have been suspiciously left off this Committee’s 

oversight list, I hope to hear from our panelists today about their use. It appears 

from a redacted FOIA request that this provision has been used hundreds of times. 

The less-famous brother of Section 215, national security letters are unusually dangerous because in addition to adding a complete gag order on the recipient, they are 

issued without any oversight from even the FISA court. Because the Justice Department admits to getting information from libraries, I suspect that National Security 

Letters may be the source, and must have more information about their use as we 

look at the PATRIOT Act. 

Finally, I would like to publicly reiterate my concern that the Judiciary Committee has left many important terror-related policies off its oversight schedule this 

year. From the practice of rendition, to the abuse of the material witness statute, 

to unsuccessful racial profiling, this Committee is ignoring the most pressing matters within its jurisdiction. We cannot limit our oversight to the few sections of the 

U.S. code that will expire at the end of the year. Clearly, the Justice Department 

has shifted the weight of its terror pursuit to other authorities, or even in the absence of lawful authority at all. If we are truly going to do our constitutional duty 

of overseeing the executive’s use of criminal and intelligence laws, we must look at 

these issues.

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REDACTED DOCUMENT ACLU RECEIVED IN RESPONSE TO A REQUEST UNDER THE FREEDOM OF INFORMATION ACT TO DISCLOSE ACTIVITY RELATED TO TRANSACTIONAL

RECORDS NATIONAL SECURITY LETTERS ISSUED SINCE OCTOBER 26, 2001


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LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE RICHARD B. CHENEY, PRESIDENT OF

THE SENATE, UNITED STATES SENATE


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LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE TO L. RALPH MECHAM, DIRECTOR, ADMINISTRATIVE OFFICE

OF THE UNITED STATES COURTS


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FORM NATIONAL SECURITY LETTER FROM THE U.S. DEPARTMENT OF JUSTICE


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ILLUSTRATIONS TO SHOW THE IMPLICATIONS OF THE PATRIOT ACT AND Doe v. 

Ashcroft on Section 2709 of the Electronic Privacy Act


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Æ


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