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IMPLEMENTATION OF THE USA PATRIOT ACT:

SECTION 218—FOREIGN INTELLIGENCE INFORMATION (‘‘THE WALL’’)

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 28, 2005

Serial No. 109–16

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 

APRIL 28, 2005

OPENING STATEMENT 

Page 

The Honorable Steve Chabot (presiding), a Representative in Congress from 

the State of Ohio, and Member, 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

WITNESSES 

Mr. Patrick J. Fitzgerald, United States Attorney for the Northern District 

of Illinois, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 6

Mr. David S. Kris, Vice President for Corporate Compliance, Time Warner 

Corporation 

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 17

Ms. Kate Martin, Director, Center for National Security Studies 

Oral Testimony ..................................................................................................... 51

Prepared Statement ............................................................................................. 52

Mr. Peter Swire, Professor of Law, Ohio State University 

Oral Testimony ..................................................................................................... 60

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

APPENDIX 

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 ................................................... 91

Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Dianne Feinstein ......................................... 92

Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Arlen Spencer ............................................... 102

The Use of Section 218 in Terrorism Investigations ............................................ 109

Submission by Peter Swire entitled ‘‘The System of Foreign Intelligence Surveillance Law,’’ 72 George Washington Law Review 1306 (2004), available 

at http://papers.ssrn.com/sol3/papers.cfm?abstractlid=586616 .................. 115

(1)

IMPLEMENTATION OF THE USA PATRIOT 

ACT: SECTION 218—FOREIGN INTELLIGENCE 

INFORMATION (‘‘THE WALL’’) 

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 notice, at 2:30 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

presiding. 

Mr. CHABOT This is the Subcommittee on the Constitution. We’ll 

come to order. 

[Discussion off the record.] 

Mr. CHABOT. Subcommittee on Crime, I’ve been informed. 

[Laughter.] 

I’m the Chair of the Subcommittee on the Constitution. I’m so 

used to saying that. I apologize. 

This is the Subcommittee on Crime, Terrorism, and Homeland 

Security. And the Chair of the Committee, Howard Coble, is unable 

to attend this afternoon; so he asked me to stand in his place. And 

I’ll try to remember which Committee this is for the rest of the 

afternoon. So I apologize for that. 

This is this Committee’s second hearing today on the USA PATRIOT Act. This hearing focuses on section 218 and its effect on 

‘‘The Wall’’ that prevented our law enforcement agencies and intelligence community from communicating. 

The Foreign Intelligence Surveillance Act limited surveillance 

and physical search orders to instances where authorities certified 

that ‘‘the purpose’’ of the order was for foreign intelligence gathering. Subsequent case law and agency guidance interpreted the 

‘‘purpose’’ requirement to mean that foreign intelligence gathering 

had to be the primary purpose. As a result, law enforcement and 

the intelligence community came to believe that sharing information or coordinating efforts would preclude the ability to obtain 

court approval for appropriate surveillance. 

The effect of this interpretation was that the metaphorical ‘‘wall’’ was built; which prevented vital communications, that some argue 

contributed to the failure of Government officials to share vital information that could possibly have prevented the 9/11 attacks. 

The witnesses this afternoon will examine the effects of section 

218 on the Foreign Intelligence Surveillance Act and ‘‘The Wall.’’

2

With this background on FISA, I look forward to hearing testimony 

from the witnesses; and now turn to the distinguished Ranking 

Member of this Committee, Bobby Scott, for his opening statement. 

Mr. SCOTT. Thank you. And I thank you for chairing the hearing, 

and for holding this hearing on the issue that has been foreshadowing much of our discussion about the PATRIOT Act: the extent to which we have dismantled the so-called ‘‘wall.’’ We’ve broken down the traditional wall between foreign intelligence gathering—particularly foreign intelligence—and criminal 

proceedings, in order to give Government broad authority to collect 

and share information, mostly secretly. And so I’m concerned that 

we have blurred the traditional line between protecting our privacy 

and freedoms. 

While I agree that some lifting of traditional restrictions in this 

area may be justified for Government to better use the authorities 

it already has in many instances, I’m also mindful that those restrictions were placed there for a good reason. We have seen, with 

COINTELPRO, Watergate, FBI spying on Martin Luther King, Jr., 

and other incidents, what abuses can occur when we do not keep 

tight enough rein on the Government’s use of extraordinary powers. We shouldn’t have to experience those problems again to ensure that the abuses do not occur. 

When we operate in the foreign intelligence area, we have traditionally given broad latitude for the use of extraordinary investigatory tools abroad, particularly involving non-U.S. persons. But 

when we turn those tools inward, we run the risk of including U.S. 

persons in some of the investigative sweeps that occur, unless we 

have sufficient barriers to prevent unwarranted extensions. 

Now, since much of the foreign intelligence side is secretive and 

ex-parte, with only Government participation, and with no public 

oversight or review, we don’t have the traditional notice, challenge, 

and public scrutiny oversight that we have on the criminal side. So 

we’ve used ‘‘The Wall’’ as protection. That is, if you get something 

on the foreign intelligence side, you can’t use it on the criminal 

side. 

With ‘‘The Wall’’ gone, I believe we should focus on establishing 

sufficient notice, challenge, and public reporting requirements, to 

ensure that foreign intelligence operations do not unduly creep into 

the domestic activities of U.S. persons. 

Now, some of our law enforcement officials seem to feel that the 

mere inclusion of information regarding uninvolved, innocent persons amounts to ‘‘no harm, no foul,’’ if they’re not arrested or subjected to having to challenge the inclusion—excuse me, the incursion or other process; a sort of ‘‘What they don’t know won’t hurt 

them’’ philosophy. Yet if overly broad information is collected, it 

can also be spread all over town, greatly increasing the likelihood 

that any of your neighbors, who may happen to be law enforcement, military, or intelligence employees, will know private things 

about you that you thought were private and known only to those 

whom you knowingly gave the information. 

So the problem with ‘‘The Wall’’ being broken down isn’t just the 

improper acquisition and use of the information; but it’s also preventing people from having it in the first place, other than those 

you gave it to with an expectation of privacy. 

3

So Mr. Chairman, I look forward to the testimony of our witnesses on the extent to which our privacies and freedoms are being 

protected despite the dismantling of ‘‘The Wall’’ through the USA 

PATRIOT Act and other measures, and what safeguards are needed to prevent the creep of overly intrusive foreign intelligence operations and powers into the privacy of our homes. Thank you, Mr. 

Chairman. 

Mr. CHABOT. Thank you very much. And it’s the practice of the 

Subcommittee to swear in witnesses who are appearing before it. 

So if you would, all please rise and raise your right hands. 

[Witnesses sworn.] 

Mr. CHABOT. Thank you. Let the record show that each of the 

witnesses answered in the affirmative. 

And at this time, I’d like to introduce this afternoon’s very distinguished panel. Our first witness is Patrick J. Fitzgerald, United 

States Attorney for the Northern District of Illinois. Prior to his appointment to this position by President George W. Bush, Mr. Fitzgerald served for 13 years as an Assistant U.S. Attorney in the 

United States Attorney’s Office for the Southern District of New 

York, General, of the United States. He graduated from Amherst 

College, Phi Beta Kappa, with a bachelor’s degree in economics and 

mathematics, and from Harvard Law School. We welcome you here 

this afternoon, Mr. Fitzgerald. 

Our second witness is David Kris. David Kris joined the Department of Justice after clerking for U.S. Court of Appeals Judge Stephen S. Strott. For 8 years, he served in the criminal division in 

the U.S. Attorney’s Office for the District of Columbia. In 2000, Mr. 

Kris was named Associate Deputy Attorney General, with responsibilities for managing the Justice Department’s national security 

programs. He attended Haverford College, and Harvard Law 

School. In June 2003, Mr. Kris joined Time Warner Inc., as vice 

president in the legal department. And we welcome you here this 

afternoon, Mr. Kris. 

Our third witness would be Kate Martin. Ms. Martin has been 

Director of the Center for the National Security Studies since 1992. 

And prior to assuming her current role, she served as litigation director for the center. She graduated from the University of Virginia 

Law School, and from Pomona College, with a B.A. in philosophy. 

And we welcome you here this afternoon, Ms. Martin. 

And our fourth and final witness this afternoon will be Peter 

Swire, a professor of law at the Ohio State University’s Morris College of Law. I thank Professor Swire for returning. He has graciously agreed to testify for a second time in this series of PATRIOT Act hearings. 

And also, coming from Ohio State, we ought to give you a special 

recognition for that, as well. Cincinnati’s not too far from there. 

Prior to joining the faculty at Ohio State University, Mr. Swire 

served in the Clinton Administration as chief counselor for privacy 

in the Office of Management and Budget. Professor Swire is a graduate of Princeton University, and Yale Law School. After graduating from law school, he clerked for Judge Ralph K. Winter, Jr., 

of the United States Court of Appeals for the Second Circuit. 

And so we have a very distinguished panel here this afternoon. 

And as I’m sure you’re all aware of, we have a lighting system 

4

here. We’d ask each witness to stay within the 5-minute time 

frame, if at all possible. There’ll be a green light that’ll stay on for 

4 minutes; a yellow light will tell you you’ve got about a minute 

to wrap up; and then, the red light will come on. And we’ll give you 

a little leeway, but if you could stay within that we’d really appreciate it. 

And we’ll begin this afternoon with you, Mr. Fitzgerald. 

TESTIMONY OF PATRICK J. FITZGERALD, UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF ILLINOIS, DEPARTMENT OF JUSTICE 

Mr. FITZGERALD. Thank you, Mr. Chairman and Ranking Member Scott. I sit here now, having been working on terrorism cases 

in the field for about 11 years. And seven of those years, I worked 

as a terrorism prosecutor while ‘‘The Wall’’ was up; and four I’ve 

worked since it has been down. And I can tell you, then, 4 years 

ago, when ‘‘The Wall’’ was taken down, I could tell you my firm belief that that was the single most important change made, not just 

in the PATRIOT Act, but in any law that affected our national security. It is extremely valuable. Four years later, I believe that 

even more. 

Let me give you a practical example of how ‘‘The Wall’’ worked. 

in 1996, when we had an investigation of Osama Bin Laden, there 

were limits on certain people who we could talk to about certain 

topics. When we talked to private citizens, New York City police officers, law enforcement generally, even the CIA, there were basically no limits on what we could ask and what we could learn, if 

we had the clearance. 

When we went overseas, we could talk to foreign citizens, foreign 

police, foreign spies. We could ask whatever we wanted. And if they 

gave us the answers, we could take it. 

When we dealt with Al-Qaeda members, and we did—both overseas and in the United States, as part of our investigation, we 

talked to Al-Qaeda members and made them witnesses—we not 

only could ask everything we wanted to, we did. And whatever information we got, we could use. 

The people we had limits on speaking to were the FBI agents 

working the intelligence investigation of Osama Bin Laden right 

across the street from us in New York, because of ‘‘The Wall’’: the 

fear we might learn what they had learned from FISA. 

In other cases in many other districts, there were prosecutors 

who did not even know there were intelligence investigations going 

on, because the people who did those investigations did not even 

know who the prosecutors were, or never talked to them. 

And let me give you a concrete example of how dangerous that 

could be. After the 1998 bombings of two embassies, American embassies, in Kenya and Tanzania, we had in the grand jury—and it’s 

now public—a person by the name of ‘‘Ali Mohamed,’’ a U.S. citizen 

from California who used to be in the American military and the 

Egyptian military. At the time, we suspected he had a role in the 

embassy bombings. 

He went into the grand jury; he lied. We believed he lied. We had 

no link then to the bombings. And we knew from him that if we 

did not arrest him that day, he was flying overseas. And we were 

5

afraid that we would never see him again. We also knew that a 

search had happened, under the FISA statute, of Ali Mohamed 

prior to that. We had no idea what was taken. We didn’t know the 

contents, the results of that search. 

We had to make a decision whether to arrest him or not—that 

night, with many of the cards in our hand unknown to us, although 

known to the FBI. And my prior boss, Mary Jo White, made the 

right decision. We arrested Ali Mohamed. He would later plead 

guilty and admit to us that he had been around for the training 

of the top Al-Qaeda leadership, including Bin Laden and Ayman 

Zawahiri. He had trained some of the people who would later be 

involved in the World Trade Center bombing. He had done the surveillance, the casings, of the American embassies in Tanzania and 

Kenya. He had shown photographs and sketches of the embassies 

to Osama Bin Laden himself. And he told us that if we had not arrested him that evening, he would have left the country and rejoined Osama Bin Laden in Afghanistan. 

Because of ‘‘The Wall,’’ we made a decision only knowing half the 

facts we needed to know. And we could easily have let him rejoin 

Osama Bin Laden in a cave, fighting our troops; rather than being 

in an American prison facility. That, to me, illustrates how crazy 

‘‘The Wall’’ was. We could know what Al-Qaeda knew; we couldn’t 

know what the FBI knew. 

When the PATRIOT Act included section 218, that wall changed. 

And now, when we sit down in my district, the Northern District 

of Illinois, and work together with the FBI, we sit down and talk 

about our criminal investigations; we talk about the intelligence investigations. And we try to make sure that we’re doing the right 

thing; that we’re coordinated. And we move forward. 

I, too, am concerned about civil liberties and privacy. In my view, 

the way we’re working, we’re doing things coordinated. We’re talking things through. We’re making sure the law is followed. I do not 

see abuses of privacy or civil liberties. What I do see is that the 

right hand knows what the left hand is doing. And I think we do 

a much better job. Thank you. 

[The prepared statement of Mr. Fitzgerald follows:]

6

PREPARED STATEMENT OF PATRICK J. FITZGERALD


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Mr. CHABOT. Thank you very much. 

Mr. Kris, you’re recognized for 5 minutes. 

TESTIMONY OF DAVID S. KRIS, VICE PRESIDENT FOR 

CORPORATE COMPLIANCE, TIME WARNER CORPORATION 

Mr. KRIS. Mr. Chairman, Ranking Member Scott, thank you for 

the opportunity to testify about the FISA ‘‘wall’’ and the role of the 

PATRIOT Act in tearing it down. 

As you know, I worked on these matters when I was at the Department of Justice. And although I’ve been out of Government 

since May of 2003, I have maintained an interest in national security issues. And I need to emphasize at the very outset that, in appearing before you today, I’m doing so only as an individual, and 

not as a representative of any former or current employer, including the Department and Time Warner. 

My written testimony lays out in detail the legal background and 

the history of the FISA ‘‘wall.’’ And subject to your questions, I 

don’t intend to repeat any of that material here. Instead, in keeping with the 5-minute rule, I would like to make two brief points. 

The first is that, regardless of your views on ‘‘The Wall’’ or the 

PATRIOT Act, whether you think it’s a good thing or a bad thing, 

you should do something about the upcoming sunset of section 218. 

[Sound of buzzer.] 

Mr. CHABOT. Go ahead. 

Mr. KRIS. I thought maybe my time had run out. 

Mr. CHABOT. No. That just means that the House is going back 

into session. So there could be votes at some point from here on. 

Mr. KRIS. Right. 

Mr. CHABOT. But don’t worry about it. 

Mr. KRIS. The reason that you should do something is because, 

if you do nothing and just allow the sun to set, I predict that you 

will thereby expand, rather than contract, Governmental power in 

this area. And the reasons for that are laid out in detail in my 

written testimony. 

Mr. SCOTT. Say that again. 

Mr. KRIS. I predict that, if you allow the sun to set on section 

218, you will thereby expand the Government’s power in this area, 

for the reasons that are in my testimony. And I don’t hear Mr. 

Fitzgerald asking for any broader authority. And indeed, even if he 

were, I don’t think that the gains from that would be—— [Repeated sounds of buzzer.] 

Mr. KRIS. This is——

Mr. CHABOT. Now they’re just doing that to annoy us. So go 

ahead. 

Mr. KRIS. I don’t think the gains would be worth the attendant 

confusion. So my first point is that you should do something. And 

I guess that’s why you’re holding these hearings. 

My second point is one that I think will strike you as perhaps 

a little strange, because it, I think, flies in the face of conventional 

wisdom. But nonetheless, I believe there is substantial reason to 

think that civil liberties are better protected with ‘‘The Wall’’ down, 

than they are with ‘‘The Wall’’ up. 

And here’s why: With ‘‘The Wall’’ down, DOJ prosecutors—and 

there are a lot of them; like Mr. Fitzgerald, they’re smart and enerVerDate 0ct 09 2002 07:50 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042805B\20877.000 HJUD1 PsN: DOUGA
16

getic—enjoy full legal access to domestic national security investigations and matters. And from that lawyer access, if it’s done 

right, comes lawyer oversight of these investigations. And lawyer 

oversight is how this country has protected civil liberties in the 

area of national security since at least the Church Commission report in the 1970’s. And obviously, it is today the civil liberties backbone of Executive Order 12333. 

So tearing down ‘‘The Wall’’ has the effect of opening up these 

investigations to a substantially larger pool of lawyers. And I think 

that is a good thing for civil liberties. 

On the other hand, if ‘‘The Wall’’ is up, DOJ prosecutors lose a 

substantial amount of that access and, in particular, their ability 

to recommend law enforcement solutions to national security problems. That, after all, is the very essence of ‘‘The Wall.’’

And yet, I think there will always be some cases in which a national security threat must be dealt with through incarceration or 

detention of one or more individuals. That is just the nature of the 

business: Sometimes you have to lock somebody up. And in those 

cases, ‘‘The Wall’’ has a tendency to channel the Government toward methods of achieving that kind of detention and incarceration 

that do not require the involvement of civilian law enforcement 

personnel. 

And regardless of what the alternatives to civilian prosecution 

were in 1978, today, obviously, one of the alternatives is military 

detention, or tribunals. Now, I hasten to state that I am not saying 

there’s anything wrong with military justice, one way or the other. 

I’m not taking any position on that matter. But I am saying, I 

think, that from a pure civil liberties perspective, at least after the 

Supreme Court’s decision in Hamdi, it’s clear that military justice 

need not involve all of the same due process protections as civilian 

justice. And so I think for that reason as well, there is a good basis 

for expecting that civil libertarians should prefer ‘‘The Wall’’ to be 

down. 

One last caveat. I see my time has almost expired. I don’t mean 

to raise the specter of mass enemy combatant designations if ‘‘The 

Wall’’ is rebuilt. That would be silly. But I do mean to say this. 

‘‘The Wall’’ has a tendency to deprive prosecutors of their seat at 

the table when the Government comes together in an inter-agency 

forum to decide what to do in a case—let’s say, the Moussaoui case 

or something like it. And anyone who has ever been through a contentious inter-agency meeting in the Executive Branch, as I have, 

knows one iron-clad rule of the bureaucracy. And that is that the 

absent agency rarely prevails. Thank you very much. 

[The prepared statement of Mr. Kris follows:]

17

PREPARED STATEMENT OF DAVID S. KRIS


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Mr. CHABOT. Thank you. 

Ms. Martin, you’re recognized for 5 minutes. 

TESTIMONY OF KATE MARTIN, DIRECTOR,

CENTER FOR NATIONAL SECURITY STUDIES 

Ms. MARTIN. Thank you, Mr. Chairman and Ranking Member 

Scott, for the opportunity to testify here before you today. I first 

of all want to make clear that, as civil libertarians, we’re not in 

favor of ‘‘The Wall’’; and indeed, have never been in favor of ‘‘The 

Wall.’’ In the 2 weeks after September 11th, we testified before the 

Congress in favor of more and better information sharing between 

intelligence and law enforcement communities. 

I do think, though, it’s important to note that the effect of section 

218 is slightly more complicated, I think, than simply to say that 

it tore down ‘‘The Wall.’’ Section 218—I’m sorry, the purpose requirement, which was changed by section 218, was interpreted by 

the Justice Department before September 11th as prohibiting contact between prosecutors and the FBI; an interpretation, by the 

way, which the FISA Court of Appeals after September 11th said 

was wrong. 

The PATRIOT Act contains another section, 504, which explicitly 

provides that all FISA information may be shared with all law enforcement. And one of the things that I think is necessary in the 

current effort to find out about the use of the PATRIOT Act is to 

ask the question of the Justice Department about why section 218 

is necessary, given section 504. What is it that section 218 adds in 

dismantling ‘‘The Wall’’ that 504 doesn’t already give? 

And the reason why it’s important to ask that question is that 

section 218 doesn’t simply tear down ‘‘The Wall.’’ It makes FISA 

surveillance much more broadly available than it was before the 

passage of the PATRIOT Act. And it is that aspect of section 218 

that I’d like to briefly focus on today. 

Section 218—before September 11, it was understood that if the 

Government started out with the primary purpose of making a 

criminal case against an individual, it must use the criminal surveillance authorities; not the Foreign Intelligence Surveillance Act. 

Section 218 changed that, and allows the Government to now use 

the broad and secret authorities of the FISA when its primary purpose is not to obtain foreign intelligence information. 

I suggest that one of the questions we don’t yet have the answer 

to is how and why and when the Justice Department and the FBI 

decide to use the secret FISA authorities instead of the regular 

criminal authorities. And that’s an important question to obtain 

the answer to. 

Most importantly, I think that in looking at section 218 it’s important for this Committee to look more broadly at the use, and 

possible abuse, of the FISA authorities; especially given the recent 

revelations about the secret FISA search of Brandon Mayfield, the 

Muslim lawyer in Portland, Oregon. 

As the Committee knows, the FISA authorizes secret searches 

and secret wiretaps, not delayed-notice searches of the kind that 

are authorized under section 213 of the PATRIOT Act. It authorizes such secret searches and secret wiretaps with less probable 

52

cause of criminal activity than is authorized in the fourth amendment in criminal investigations. 

But there are two additional key features of FISA surveillance. 

The first is that in most instances, when Americans are targeted 

for secret searches and secret wiretaps under the FISA, they are 

never informed by the Government that the FBI has been inside 

their house, has copied their computer drives or, in some instances, 

seized their DNA. They are never informed that the FBI has been 

listening to their telephone conversations. 

The second key difference between FISA surveillance and criminal surveillance is that when individuals are indicted, after having 

been targeted by FISA surveillance, then they are in fact informed. 

That’s the only time they are informed of FISA surveillance. But 

even then, they are never provided with any kind of opportunity to 

look at any portion of the original application for the FISA warrant. 

And the effect of that means that there is no adversarial judicial 

review of the propriety of a FISA search. It is true, of course, that 

a FISA judge initially approves a FISA surveillance. But on the 

criminal side, what we rely on to make sure that the fourth amendment was in fact complied with is after-the-fact judicial review of 

the search and the probable cause, in which the target of the 

search has a fair chance to participate and challenge whether or 

not there was in fact probable cause to begin with. That opportunity is missing in the FISA context. 

And I would suggest that this Committee look into two possible 

amendments to address the problem of the searches being secret 

forever, and the second problem of no adequate chance to challenge 

the legality of the search when someone is indicted using FISA evidence. 

[The prepared statement of Ms. Martin follows:]

PREPARED STATEMENT OF KATE MARTIN

Thank you, Mr. Chairman, for the honor and opportunity to testify today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to insure that civil liberties and human 

rights are not eroded in the name of national security. The Center is guided by the 

conviction that our national security can and must be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In 

our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either. The Center has 

worked for more than twenty years to protect the Fourth Amendment rights of 

Americans to be free of unreasonable searches and seizures, especially when conducted in the name of national security. For example, the Center, then affiliated 

with the American Civil Liberties Union, was asked to testify before Congress when 

the Foreign Intelligence Surveillance Act was first enacted. In 1994, when Congress 

amended the Act to include physical searches, we were again asked to testify about 

the civil liberties and constitutional implications of that legislation. 

We appreciate the role this Committee has taken in connection with the USA Patriot Act, beginning with the work that was done before its enactment to build in 

protections for civil liberties while the government’s surveillance powers were increased. Since its enactment, the Committee has vigorously pursued information 

from the Justice Department concerning the use of the Act, and we commend the 

Committee for now holding this series of oversight hearings. 

However, we do not believe that the Congress yet has enough information to make 

permanent certain key provisions of the Patriot Act, particularly section 218 and 

those relating to information-sharing. (My testimony today does not address the speVerDate 0ct 09 2002 07:50 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\042805B\20877.000 HJUD1 PsN: DOUGA
53

1Oversight of the USA Patriot Act, Hearings Before the Senate Comm. On the Judiciary, 109 

Cong. (Apr. 5, 2005). 2Parts of this testimony were adopted from my article on ‘‘Domestic Intelligence and Civil Liberties,’’ SAIS Review of International Affairs Winter-Spring 2004, Volume 24, No. 1, available 

at http://www.saisreview.org/PDF/24.1martin.pdf. 

cific provisions of the Patriot Act relating to information-sharing, sections 203 and 

905, as that is the subject of another hearing. However, we do not believe that the 

Congress yet has adequate information about how the law enforcement community, 

including the FBI, determines what information about Americans should be shared 

with the CIA and other intelligence agencies, what specific safeguards exist against 

abuse, or how the agencies insure that they recognize and act appropriately on important information. For further information, please see the article on section 203 

of the Act at www.patriotdebates.com.) 

The subject of today’s hearing is section 218 of the Patriot Act which amended 

the purpose requirement of the Foreign Intelligence Surveillance Act (FISA) and is 

sometimes described as having dismantled the ‘‘wall’’ between law enforcement and 

intelligence. While it is clear that more and better coordination is needed between 

law enforcement and intelligence on counterterrorism, it is not clear that amending 

the purpose requirement of the FISA was necessary to achieve that. More importantly, it is not clear whether the government is now using the extraordinary secret 

search and seizure powers under the FISA in ways that are both effective and consistent with constitutional requirements. The recent case of Brandon Mayfield, the 

innocent lawyer in Oregon jailed for two weeks, apparently because of his religion, 

raises serious and unanswered questions. The Committee should demand more information concerning the use of the FISA search and seizure authorities before extending section 218. If section 218 is extended, Congress should amend FISA to protect due process and Fourth Amendment rights. 

My testimony today will also discuss the separate but related issue of the relationship between law enforcement and intelligence in investigating Americans and 

others inside the United States, and the so-called ‘‘wall.’’ The Center has long advocated the necessity of tying domestic intelligence authorities to law enforcement to 

insure that government surveillance is targeted against actual wrong-doers and not 

against political or religious minorities. As FBI Director Mueller said, ‘‘there are no 

clear dividing lines that distinguish criminal, terrorist and foreign intelligence activity. Criminal, terrorist and foreign intelligence organizations and their activities are 

often inter-related or interdependent.’’ 1 However, the most recent proposal for further intelligence reorganization recommends consideration of establishing a new 

MI5-like domestic intelligence agency presumably divorced from law enforcement. 

The recommendation made by the Commission on the Intelligence Capabilities of 

the United States Regarding Weapons of Mass Destruction to move the FBI’s counterterrorism and counterintelligence operations under the new Director of National Intelligence raises serious questions about moving control of domestic intelligence away from the Attorney General to the DNI. We believe that doing so would 

be a mistake from the standpoint of both civil liberties and effective 

counterterrorism. 

THE ‘‘WALL’’ BETWEEN LAW ENFORCEMENT AND INTELLIGENCE

The existence of a legal ‘‘wall’’ preventing law enforcement and intelligence agencies from sharing vital information about suspected terrorists is often cited by government officials as the main reason the CIA and FBI didn’t discover and stop the 

September 11 hijackers.2 The Justice Department made this argument when it 

sought to amend the purpose requirement of the Foreign Intelligence Surveillance 

Act in the Patriot Act and Attorney General Ashcroft repeated it when defending 

the pre-9/11 intelligence failures before the 9/11 Commission. But the existence of 

legal barriers to sharing information before 9/11 was highly exaggerated, and even 

the Justice Department has come to recognize that the real problems were bureaucratic failures of coordination and communication between and within the FBI and 

CIA. 

The term ‘‘wall’’ was used as shorthand for the understanding that the fundamental principles limiting government surveillance of Americans apply differently 

in the case of law enforcement or intelligence. Such principles include the recognition that there are important consequences for individuals depending on the government’s purpose in initiating surveillance; in particular whether it intends to use the 

fruits of its surveillance against an individual to prosecute and jail him. They include the teaching of the Fourth Amendment that the best protection against abuse 

of surveillance powers is to require the government to have some evidence of criminal activity before investigating an individual. Requiring some criminal predicate for 

54

3See, for example, Kate Martin’s September 24, 2001 testimony before the Senate Select Committee on Intelligence on the Legislative Proposals in the Wake of September 11, 2001 Attacks, 

including the Intelligence to Prevent Terrorism Act of 2001, available at www.cnss.org/

kmtestimony0924.pdf. 4 But see In re: Sealed Case No. 02–001, Foreign Intelligence Surveillance Court of Review, 

18 November 2002. 

government investigations in turn helps protect citizens from being targeted based 

on dissent, religion, or ethnicity, and helps to insure that surveillance and intelligence powers are not used for political purposes. 

The classic understanding of foreign intelligence gathering—the collection of information that policymakers need concerning the capabilities and intentions of foreign 

governments and groups—is not, however, linked to a criminal predicate. The distinction between the two—investigating possible wrong-doing by individuals and 

spying on foreign powers—was the fundamental rationale for separating the functions of law enforcement and intelligence agencies. It was also understood that 

Fourth Amendment rules governing searches and seizures in the United States 

should be most protective when criminal sanctions against an individual are possible. 

Thus, there were separate authorities written to govern law enforcement and foreign intelligence investigations inside the United States. In particular, since 1978, 

wiretapping to investigate crimes has been governed by one federal statute, while 

the Foreign Intelligence Surveillance Act (FISA) governs wiretapping ‘‘agents of a 

foreign power’’ inside the United States for the purpose of gathering foreign intelligence. Similarly, the Attorney General’s Guidelines governing FBI activities, written by Attorney General Levi in 1976 and since amended, provided one set of rules 

for criminal investigations and another for gathering foreign intelligence relating to 

espionage or international terrorism inside the United States. These authorities allowed the government much wider latitude in gathering information about Americans and keeping it secret for foreign intelligence purposes than that which is allowed for law enforcement purposes. They also provided much less judicial oversight 

of the gathering of information for foreign intelligence purposes than for criminal 

investigations. 

While the pre-September 11 framework assumed differences between law enforcement and intelligence, everyone, including the civil liberties community, always recognized the necessity of effective coordination between the intelligence community 

and law enforcement to fight terrorism.3 Indeed, for all the talk of a ‘‘wall,’’ the preSeptember 11 legal regime acknowledged that terrorism-like espionage, and to a 

lesser extent international narcotics trafficking—is both a law enforcement and intelligence matter. Indeed, no statutory ‘‘wall’’ prohibited sharing information between the law enforcement and intelligence communities; to the contrary, the law 

expressly provided for such sharing. While the Foreign Intelligence Surveillance Act 

was interpreted to mean that prosecutors could not direct foreign intelligence wiretaps, as opposed to criminal wiretaps, the text of FISA expressly contemplated that 

FISA surveillance may uncover evidence of a crime. Before September 11, FISA information had been used in many criminal cases. 

Moreover, none of the 9/11 failures were caused by the inability of prosecutors to 

direct FISA surveillance. The reports of the Congressional Joint Inquiry and 9/11 

Commission describe many missed opportunities in detail. Although there were 

widespread bureaucratic misunderstandings about legal restrictions on information 

sharing, nowhere do the reports identify any statutory prohibition on information 

sharing as at fault. Instead, the failures resulted from the FBI and CIA failing to 

know what they knew. For example, while lower level FBI agents had important 

information about Al Qaeda associates in the United States that they shared with 

Headquarters, the higher-ups failed to understand the significance of the information, much less act on it. Similarly, the CIA knew for almost two years about the 

U.S. visa issued to an Al Qaeda suspect who would hijack a plane on September 

11, but failed to inform the FBI or appreciate the importance of the information. 

This was a failure of analysis and coordination; it was not caused by legal restrictions on access to information. 

THE PATRIOT ACT AND SECTION 218. 

Before September 11, it was understood that if the government started out with 

the primary purpose of making a criminal case against an individual, it must use 

the criminal surveillance authorities, not FISA.4 In the Patriot Act, the Justice Department asked Congress to repeal the fundamental requirement in FISA that its 

secret and extraordinary procedures be used only when the government’s primary 

purpose is to collect foreign intelligence. Through section 218 of the Patriot Act, the 

55

5See Justice Department, USA Patriot Act: Sunsets Report, April 2005, in particular concerning the case of Sami Al-Arian. 

Justice Department sought to allow the use of FISA’s extraordinary powers when 

the government targets an individual for criminal prosecution or otherwise as long 

as foreign intelligence gathering was a significant purpose of the surveillance. Of 

course, since FISA only applies when there is probable cause that the target is an 

‘‘agent of a foreign power’’ or foreign power, the significant purpose requirement will 

always be met when the other statutory requirements are met. (FISA authorizes 

surveillance of all individuals in the United States, both U.S. persons and non U.S. 

persons who meet the definition of ‘‘agent of a foreign power.’’) 

In seeking section 218, the Department complained that FISA barred the sharing 

of information with prosecutors and law enforcement investigators. However, even 

if legal rather than bureaucratic obstacles existed to sharing information, Congress 

could have adequately addressed the problem simply by providing that FISA information could be shared with law enforcement personnel, as it did explicitly in section 504 of the Patriot Act. This provision alone—proposed by Senator Leahy, not 

the Justice Department—would have addressed whatever confusion existed about 

the FISA requirements at the FBI and elsewhere. 

But the Patriot Act goes much further. Section 218 repeals the requirement that 

foreign intelligence gathering be the primary purpose when initiating FISA surveillance. Thus, the government is now free to use the broad powers in FISA to conduct 

secret surveillance on Americans with the intention of bringing criminal charges 

against them, or simply to collect information about them as long as there is probable cause that the individual is an agent of a foreign power. 

In evaluating the effect of section 218, it is important to begin with a description 

of FISA authorities. The FISA statute authorizes secret surveillance on less probable cause of criminal activity than is authorized by the Fourth Amendment in 

criminal investigations. Moreover, FISA contains many fewer safeguards against 

abuse because there is no post surveillance check on either the legality of the initial 

warrant or on how the surveillance was conducted. While the Justice Department 

claims that there are judicial oversight and probable cause requirements built into 

FISA, there is no dispute that in most instances the government will never have 

to inform an American that his conversations were overheard, his house searched 

or his DNA seized pursuant to FISA. The statute only requires the government to 

inform Americans targeted by FISA wiretaps or searches of those searches if they 

are subsequently criminally indicted and the government tries to use the fruits of 

the searches against them. The statute also permits, but does not require the Attorney General to determine that there is no national security interest in continuing 

secrecy about the search of a U.S. person’s home and then to inform that individual 

that his house was searched. 50 U.S.C. sec. 1825(b). 

Even in those few cases where an individual is informed that he or she has been 

the target of FISA searches and seizures, the Attorney General always blocks access 

to the original application for the FISA warrant. See 50 U.S.C. secs. 1806(f) and 

1825(g). Thus, there is no opportunity for a target to challenge the search and obtain adversarial, rather than ex parte, judicial review of the adequacy and legality 

of the search, because the original application for a FISA warrant, unlike a criminal 

warrant application, is always withheld from the target. 

Unanswered questions concerning the use of FISA. 

While the Justice Department continues to claim that the change in FISA’s purpose requirement in section 218 is necessary to allow it to use FISA information in 

criminal prosecutions, its claims raise more questions than they answer. For example, the Department cites prosecutions of individuals based on FISA information obtained from surveillance conducted before the Patriot Act as evidence of the usefulness of section 218.5 The Department, however, has provided no explanation about 

why section 504 is not sufficient to provide full authority for sharing all FISA information with prosecutors. Section 218’s change to the purpose requirement would 

seem irrelevant to such sharing. This would seem especially true, of course as to 

the sharing of FISA surveillance conducted before section 218 changed the purpose 

requirement. 

The second unanswered question concerns the effect of section 218 to allow the 

government to use the secret authorities in FISA in criminal cases instead of the 

usual Fourth Amendment warrants which contain greater protections. The Justice 

Department has offered no public explanation for why and when it decides to use 

the secret authorities of FISA, rather than the usual criminal authorities. This 

question is especially important as the extraordinary procedures of FISA are available not just for matters involving international terrorism. The statute also allows 

56

the use of secret searches and seizures against Americans in investigations of ‘‘clandestine intelligence gathering’’ on behalf of a foreign government, which might well 

include legal activities such as preparing non-public reports for foreign governments 

or groups. 

Similarly, the Department’s description of its use of FISA surveillance pursuant 

to section 218 in the case of the ‘‘Portland Seven’’ again raises more questions than 

it answers. While the Department claims that section 218 allowed it to postpone arresting one individual in order to continue the investigation and arrest six more 

people, it provides no explanation about how the law worked to effect that result. 

To the contrary, missing from this explanation is any acknowledgement that the Department has the authority to postpone notice of criminal wiretap surveillance and 

physical searches and seizures until it is able to identify and arrest other conspirators. Indeed section 213 of the Patriot Act—the so-called sneak and peak authority—explicitly codifies that authority to delay notification of criminal searches and 

seizures. The Justice Department has said nothing about why they could not have 

used the delayed notice authority in section 213 and Title III of the wiretap statute 

to accomplish the same result in the Portland Seven case. 

Moreover, in order to fully evaluate section 218, it is important to consider the 

broader context of the secret wiretap and surveillance authority in the FISA. The 

recent revelations concerning the secret search of Brandon Mayfield’s home raise serious unanswered questions about possible abuse of the FISA authorities. Mayfield, 

a Muslim lawyer in Portland, Oregon was jailed for two weeks, without charges, on 

what turned out to be the false claim that he had material information concerning 

the March 11, 2004 terrorist bombing in Madrid. After he was released the FBI 

apologized for jailing an innocent person. In the course of investigating Mr. 

Mayfield, the FBI apparently obtained a warrant under the FISA to secretly search 

his home and seize copies of his documents, computer files and his DNA. Apparently, the FBI also secretly wiretapped his phone and e-mail. There is ample evidence that the FBI carried out the searches and seizures with the intention of 

jailing and prosecuting Mr. Mayfield. While the Inspector General is now investigating the case, including presumably how the FBI came up with a suspect who 

was Muslim based on a misread fingerprint, the Congress needs to undertake its 

own investigation, in particular on the use or abuse of the FISA authorities. There 

is no way to know how many other innocent Americans have had their houses 

searched or their phones tapped based on allegations resting on their religion. The 

search of Mr. Mayfield’s home is an example of the dangers of FISA. Those dangers 

are increased by section 218 (regardless whether that section played a role in that 

particular search) because by making FISA surveillance more easily obtainable, section 218 makes it likely that a lot more people will be secretly searched. And the 

attendant secrecy raises the specter that the government will as it did in the 

Mayfield case—go after an innocent American. Under current law, there is no way 

to know how many Americans have been subject to such surveillance, or how many 

more will be. 

At a minimum, Congress should obtain the answers to all these questions before 

extending section 218. The Committee should make arrangements to review the 

FISA applications—at least for U.S. persons—under secure circumstances. The 

Committee should investigate the use of FISA searches and seizures when the purpose of the investigation is to target individuals for criminal prosecution or deportation. The Committee should also investigate what protections exist against using 

protected First Amendment activities, including religious beliefs and political activities, as the basis for FISA surveillance. While the details of particular FISA applications are of course classified and cannot be publicly disclosed, there is much information concerning the law and its application which can be disclosed and needs to 

be publicly discussed before Congress extends section 218. 

Needed Amendments. 

Should the Congress determine to extend section 218 for an additional period of 

time, it should consider adopting two amendments to provide some minimal safeguards. The amendments are needed to protect the Fourth Amendment rights of individuals whose homes are secretly searched, and whose papers and DNA are secretly seized, but who turn out not be spies and terrorists and to protect the due 

process right of those the government seeks to prosecute and imprison based on the 

results of such secret searches and seizures. 

Under current law, the government is required to notify an individual that he has 

been targeted under FISA only when it seeks to use the information against him. 

Mr. Mayfield is apparently the only individual ever notified by the government that 

he had been the target of a FISA search, who the government was not seeking to 

prosecute or deport. While it is not clear why he was informed, it is likely that the 

57

government did so only because it had wrongly imprisoned him and is now being 

sued for that act. While the FISA refers to the Attorney General determining that 

there is no national security interest in continuing secrecy about the search of a 

U.S. person’s home, the Justice Department claims that no court may compel it to 

inform an individual of a search in those circumstances. See Mar. 24, 2005 letter 

from Justice Department to Mr. Elden Rosenthal, referring to 50 U.S.C. § 1825(b). 

Even when an individual is notified because he has been indicted, the government 

is not required to disclose anything more than the existence of the FISA surveillance unless it either seeks to introduce FISA information into evidence or the information is required to be disclosed to the defendant under the Brady exculpatory evidence rule. And then, all the government provides to the defendant is a record of 

his own telephone conversations or a copy of his own papers. See FISA, 50 U.S.C. 

§§ 1806(c), 1825(d). (Even these minimal protections are only available to individuals 

not alleged to be ‘‘alien terrorists.’’ See 8 U.S.C. § 1534(e). ) 

The government is not required to disclose and, it appears, has never disclosed 

the application for a FISA warrant to anyone. Indeed, information obtained under 

FISA is accorded much greater secrecy than any other kind of classified information 

is accorded under the Classified Information Procedures Act or, in our view, than 

is consistent with constitutional due process requirements. 

If Congress extends section 218, allowing secret surveillance when the government’s primary purpose is not foreign intelligence gathering, but rather making a 

criminal case against an individual, Congress should consider how to bring the use 

of FISA information in line with basic due process requirements. One way to do this 

would be to treat FISA information like all other kinds of classified information by 

making it subject to the provisions of the Classified Information Procedures Act. 

Such a provision is included in the Civil Liberties Restoration Act, H.R.1502, sec. 

401. Under current law, it is nearly impossible for a defendant to contest the introduction of FISA evidence against him because the government’s application for the 

FISA search and related materials are automatically kept secret. That should be 

changed so that when FISA evidence is used in criminal cases, the court may disclose the application and related materials to the defendant or his counsel, with any 

necessary redactions, in accordance with the Classified Information Procedures Act. 

(Sources and methods information for example, might be withheld.) Such an amendment would offer a balanced and effective way to protect both sensitive national security information and the due process rights of individuals. 

Congress should also consider amending the FISA to protect the Fourth Amendment rights of those whose homes are searched and conversations are overheard, 

but who turn out not to be terrorists or spies. There is no requirement under current law that the government inform innocent persons whose conversations are 

overheard, houses are searched and belongings are seized that the FBI was in their 

home and listening to their conversations. There is no after-the-fact check on the 

propriety of the search. An innocent individual never gets a chance to challenge the 

search, only one who is subsequently indicted. And with the repeal of the purpose 

requirement in section 218, the number of FISA searches has been steadily increasing. 

A fundamental requirement of the Fourth Amendment is that an individual be 

notified of the government’s search and seizure and Congress should take one small 

step to restore this constitutional protection to those who are targeted for secret 

searches and turn out to be innocent. Congress should consider amending the FISA 

so that, if it turns out that the person whose house was searched (and whose conversations or e-mail were intercepted) was not a terrorist or a spy, the individual 

would be told after some reasonable period of time that the government had 

searched his belongings and be given an inventory of what was taken. This could 

be done by amending 50 U.S.C. § 1825(b) to require the Attorney General when certain criteria are met to notify all those who were subject to FISA searches or seizures. Those criteria should include the passage of a definite time period and the 

determination that there is no current probable cause that the target is in fact an 

‘‘agent of a foreign power.’’ Doing so would restore Fourth Amendment protections 

and provide some measure of accountability for secret searches of Americans’ homes. 

DOMESTIC INTELLIGENCE REORGANIZATION PROPOSALS

In enacting the recommendations of the 9/11 Commission regarding the reorganization of U.S. intelligence agencies, the Congress accepted its conclusion that a 

new domestic MI5 or CIA should not be created. There has been a broad consensus 

among both civil libertarians and intelligence officials that the responsibility for intelligence activities inside the United States should ultimately remain with the Attorney General as the chief law enforcement officer rather than with an intelligence 

58

6 Center for Strategic and International Studies, Guiding Principles for Intelligence Reform,

at 2 (Sept. 21, 2004), at http://www.csis.org/0409—intelreformprinciples.pdf. 7Testimony of William H. Webster before the Senate Committee on Governmental Affairs, Reorganizing America’s Intelligence Community: A View From the Inside (Aug. 16, 2004), at 8, 

available at http://hsgac.senate.gov/—files/081604webster9934.pdf. 

official. As former intelligence and national security officials, including former DCI 

Robert Gates, John Hamre and Sam Nunn urged, ‘‘[e]ven as we merge the domestic 

and foreign intelligence we collect, we should not merge responsibility for collecting 

it . . . exclusive responsibility for authorizing and overseeing the act of domestic intelligence collection should remain with the Attorney General. This is the only way 

to protect the rights of the American people upon whose support a strong intelligence community depends.’’ 6

In the Intelligence Reform and Terrorism Prevention Act of 2004, the Congress 

set up a National Counterterrorism Center to insure sharing of information and coordination of plans, but agreed that ultimate responsibility for domestic operations 

should remain with the Attorney General. However, the most recent review done 

by the Silberman-Robb Commission has recommended that the counterterrorism 

and counterintelligence operations of the FBI be moved under the direct supervision 

of the new Director National Intelligence. Such a recommendation, if adopted, would 

make use of counterterrorism’s most effective domestic tool—the ability to prosecute 

and jail terrorists more difficult. By separating domestic terrorism and counterintelligence from law enforcement, it could create new and more difficult coordination 

problems. Indeed the Commission also recommends the reorganization of national 

security responsibilities at the Justice Department, but does not explain how those 

prosecutorial efforts under the supervision of the Attorney General would be coordinated with a reorganized FBI carrying out the intelligence and investigations necessary to bring prosecutions under the supervision of the new NDI rather than the 

Attorney General. In making its recommendation, the Commission also overlooks 

the fundamental differences in intelligence at home and abroad and risks resurrecting all the bureaucratic difficulties attributed to the ‘‘wall’’ that law enforcement 

and intelligence agencies have been working to dismantle since September 11. Such 

a change is likely to threaten civil liberties. 

Differences between intelligence at home and abroad. The Attorney General, unlike 

an intelligence director, has an institutional responsibility to protect constitutional 

rights and is subject to closer and more transparent congressional scrutiny. As William Webster, former director of both the FBI and CIA, testified last August concerning proposals to transfer the FBI’s domestic intelligence authorities from the Attorney General to an intelligence official, ‘‘the FBI should take its guidance from the 

Attorney General on its dealings with U.S. persons and the manner in which it collects information in the United States. This has been an important safeguard for 

the American people, should not be destructive of effective operations, and avoids 

the risks of receiving vigilante-type instructions, whether from the intelligence community or the White House.’’ 7

Historically, overseas intelligence was largely carried out by the CIA (and Defense 

Department agencies) while the FBI was largely responsible for domestic intelligence because there are important differences between the missions and methods 

that are necessary and appropriate abroad and at home. These differences should 

not be disregarded by the simplistic device of labeling these different activities in 

the U.S. and abroad as ‘‘intelligence.’’ Generally, the CIA has been confined largely 

to gathering foreign intelligence abroad for policymakers regarding the intentions 

and capabilities of foreign powers or groups. The FBI has had both law enforcement 

and intelligence responsibilities inside the United States, for both counter-espionage 

and international terrorism matters. While both involve intelligence, the difference 

in functions is important from the standpoint of civil liberties. 

The CIA acts overseas, in secret, and its mission includes violating the laws of 

the country in which it is operating when necessary. It is charged with collecting 

information overseas without regard to individual privacy, rights against self-incrimination, or requirements for admissibility of evidence. It is also tasked with carrying out covert actions to influence events by whatever means the President authorizes. The agency gives the highest priority to protection of its sources and methods. 

In contrast, the FBI, as an agency with both intelligence and law enforcement responsibilities, must always operate within the law of the jurisdiction in which it is 

operating, even when outside the U.S. It must respect the constitutional limits set 

by the First Amendment, the Fourth Amendment and due process on government 

activities inside U.S. borders, which limits have not (yet) been extended to aliens 

59

8While international human rights law provides many of the protections recognized in the Bill 

of Rights and is not limited by national borders, its applicability to intelligence activities in 

times of emergency or war is less developed. 9 As the 9/11 Commission recognized: ‘‘Counterterrorism investigations in the United States 

very quickly become matters that involve violations of criminal law and possible law enforcement action. Because the FBI can have agents working criminal matters and agents working 

intelligence investigations concerning the same international terrorism target, the full range of 

investigative tools against a suspected terrorist can be considered within one agency.’’ NATIONAL

COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT

424 (2004). 

overseas.8 While the task of foreign intelligence is to learn as much as possible to 

provide analyses to policymakers, deepseated notions of privacy rooted in the Constitution limit the information the government may collect and keep about Americans. There is much greater transparency of the FBI’s operations, in part because 

they affect Americans and in part because they are likely to lead to prosecutions, 

with the result that information which is collected must generally be admissible as 

evidence at trial and the methods and informants used are quite likely to be publicly identified. 

Examining how intelligence information is actually used in counterterrorism demonstrates the necessity of tying intelligence activities inside the U.S. to a law enforcement agency. The first use of ‘‘intelligence’’ information is to identify and locate 

individuals involved in planning terrorist acts. This information must then be used 

to prevent the attack, in ways that are legally permissible. Potential terrorists found 

in the United States may be placed under intensive surveillance. They may be apprehended if there is probable cause that they are engaged in criminal activity or 

are in the United States in violation of the immigration laws. They may be arrested 

not only for plotting terrorism, including attempt or conspiracy, but for any crime 

or visa violation. The government may also attempt to turn them into informants 

on their associates (with or without arresting them), but may not blackmail them 

to do so. Ultimately, in order to disable individuals from future terrorist activity, 

they have to be arrested and prosecuted. (They may also be deported.) Such ‘‘prevention’’ through prosecution has remained one of the government’s major anti-terrorism tools even since September 11. Such an approach focuses on individuals involved in planning criminal activities and ultimately relies on law enforcement authorities.9

Whereas the FBI must arrest and charge individuals in the U.S. consistent with 

due process, the CIA and DoD intelligence agencies operating overseas are free to 

employ methods such as disinformation campaigns, secret kidnappings, and interrogations. The methods used by the CIA and foreign intelligence agencies to ‘‘disable’’ terrorists—predator drones shooting missiles at a car crossing the desert; turning 

individuals over without any legal proceedings to intelligence services infamous for 

coercive interrogations; or indefinitely detaining individuals incommunicado without 

any legal process—have never been deemed constitutional or appropriate to use 

against individuals in the United States. Even absent military hostilities, overseas 

intelligence methods include disruption of groups and harassment of individuals 

using agent provocateurs, blackmail or other means, which have not been allowed 

in the United States. 

Moreover, counterterrorism intelligence inside the United States poses special 

risks to civil liberties. It is always difficult to investigate planned terrorist activity 

without targeting those who may share the religious or political beliefs or the ethnic 

backgrounds of the terrorists, but do not engage in criminal activity. It is easier for 

an agency to identify those who share the political goals or religious fanaticism of 

terrorists than to identify and locate those actually plotting harm. It is therefore 

crucial to structure bureaucratic rules and incentives to discourage investigations 

based on political and religious activities and to require focusing on finding actual 

terrorists. An important means for doing this is to require agencies to focus on 

criminal activity, which encompasses all terrorist plotting and financing, rather 

than authorizing an intelligence approach that absorbs all available information 

about thousands of individuals in the hope of finding something useful. A second 

important safeguard is the transparency inherent in a law enforcement agency ultimately answerable to the courts—transparency to which the CIA, as an intelligence 

agency, has never been subjected. 

While questions have been raised concerning the effectiveness of various FBI efforts, those issues do not undercut the importance of tying domestic intelligence efforts to a law enforcement agency. Similarly, the fact that it is important to assure 

effective coordination between intelligence activities overseas and those in the U.S. 

does not argue for any separation of domestic intelligence activities from related law 

enforcement activities. Indeed, even as the 9/11 Commission recommended new 

60

10 9/11 COMMISSION REPORT, at 423. 1The information referred to is located in the Appendix. 

structures to insure coordination, it agreed that the FBI, not the CIA, should retain 

domestic intelligence responsibilities. ‘‘The FBI’s job in the streets of the United 

States would thus be a domestic equivalent, operating under the U.S. Constitution 

and quite different laws and rules, to the job of the CIA’s operations officers 

abroad.’’ 10

Given the importance of maintaining different laws and rules for the collection of 

intelligence on Americans than for the collection of intelligence overseas, the Attorney General should remain ultimately responsible for the FBI’s operations. Putting 

an Intelligence Director or Office in charge of domestic intelligence will exacerbate 

the difficulties in reconciling the different approaches that are required in the U.S. 

and overseas. We note that the Silberman-Robb Commission did recommend that 

the rules for domestic intelligence should still be written by the Attorney General, 

but we suggest that such a division of responsibility—between an Attorney General 

who writes rules for intelligence and counterterrorism operations, but has no responsibility for how those rules are carried out and a Director of National Intelligence who has responsibility for how operations are carried out, but no responsibility for writing the rules—makes no sense. We respectfully suggest that the DNI 

should have responsibility for insuring coordination between domestic and foreign 

collection and for setting overall strategic priorities for domestic intelligence collection, while domestic intelligence operations should remain operationally tied to law 

enforcement. 

In conclusion, let me reiterate our appreciation for the Committee’s hard work on 

these difficult problems that are important for both our liberty and our security. We 

look forward to working with you in the future and stand ready to provide whatever 

assistance we can.

Mr. CHABOT. Thank you very much. 

And Mr. Swire, you’re recognized for 5 minutes. 

TESTIMONY OF PETER SWIRE, PROFESSOR OF LAW,

OHIO STATE UNIVERSITY 

Mr. SWIRE. Thank you, Mr. Chairman, and thank you for the 

kind words from Ohio. Thank you, Mr. Ranking Member, for being 

here today and for you inviting me back to testify this week. Your 

Committee is doing an exemplary job, I believe, of developing a 

record for what to do next on the PATRIOT Act. 

The topic of today’s hearing, FISA and ‘‘The Wall,’’ has been the 

focus of my biggest single research project since I left the Government 5 years ago. My testimony today is drawn from a Law Review 

article 1 that has been placed in the hearing record and is available 

online. Research for that article included many interviews, often on 

background, with Government officials who have worked with FISA 

over the decades. 

I have one over-arching point today, as well as four specific 

points. The over-arching point is this: ‘‘The Wall’’ has been our 

chief protection against a slippery slope, against permitting secret 

FISA surveillance from expanding deep into normal law enforcement activities. If ‘‘The Wall’’ stays down, then it is the job of this 

Committee and the Congress to create a new set of checks and balances against abuse. 

These hearings are the single biggest reexamination of FISA 

since it was passed in 1978. I therefore attached to the testimony 

a set of oversight questions, to try to clarify law and practice. I’ve 

also attached a list of concrete possible reforms that can, taken together, I hope, create the checks and balances needed to replace 

‘‘The Wall.’’ In 2001, a wall was taken out of the structure of FISA. 

It’s up to Congress to build a sound structure for the future. 

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My four specific points: First, supporting Kate Martin’s proposals 

in her written testimony; second, talking about ‘‘agent of a foreign 

power’’ definition; third, talking about the words in section 218, 

itself; and fourth, a brief comment on one other provision. 

Turning to the next point, the definition of ‘‘agent of a foreign 

power,’’ this is absolutely crucial to defining the scope of FISA. For 

law enforcement investigations, a wiretap means probable cause of 

a crime. For FISA, it’s just probable cause the person is an agent 

of a foreign power. 

Think about an individual who works in the United States for 

the Cali drug cartel. Is that person an agent of a foreign power? 

The Cali cartel is very organized. It physically controls a lot of land 

in Colombia. It may well be more of a foreign power than Al-Qaeda 

is, that doesn’t own a big territory. So if one accepts that the Cali 

cartel is a foreign power, and a major smuggler is an agent of a 

foreign power, what about a street-level cocaine dealer? Is that an 

agent of a foreign power? Is that a FISA wiretap because that person is part of narco-terrorism? 

To take another example, what about the activities of the socalled ‘‘Russian mafia’’? Many organized crime groups have links to 

overseas operations. How small can the links back home be to still 

qualify that group’s actions as part of a foreign power’s operations? 

My second specific point concerns a proposal for partially mending ‘‘The Wall.’’ The Law Review article explores in detail the reasons for and against having ‘‘The Wall.’’ Based on my research, the 

greatest problem with the old ‘‘primary purpose’’ test is that investigators genuinely don’t know in the early stages of an investigation whether the case will primarily end up being for intelligence 

or law enforcement. The early wiretap order is a dual-use technology. It’s for both intelligence and law enforcement, depending 

how things turn out. 

My article argues that the missing legislative piece is a requirement within FISA that the surveillance, one, be important enough 

and, two, be justifiable on foreign intelligence grounds alone. It has 

to really be a foreign intelligence wiretap. 

One way to go could be to say that a principal purpose, ‘‘a principal purpose,’’ is foreign intelligence. Another way would be to 

amend FISA to include a new certification in the FISA application. 

The certification would say that, ‘‘The information sought is expected to be sufficiently important for foreign intelligence purposes 

to justify the order.’’ It really has to be for foreign intelligence; 

maybe also it turns out to be for criminal. 

In concluding, I note that the article goes piece by piece through 

FISA, suggesting ways to update many of its provisions in light of 

our experience since 1978 and since 2001. A special focus of the article is the so-called ‘‘gag rule’’ that applies to section 215 orders 

and national security letters. The Senate version of the SAFE Act 

has included one of my recommendations, which is to put a 6-

month limit on the gag. You can’t talk about the search; but 6 

months later, ordinary people can. That limit would be extendable 

by order of the FISA court. I hope very much this Committee will 

follow along with the Senate, and include the same limit in the bill 

this year. 

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To return to my over-arching point, ‘‘The Wall’’ probably deserves 

to be lowered somewhat in our globalized world, where information 

sharing is vital to fast-moving interrogations—investigations. ‘‘The 

Wall,’’ however, was our chief bulwark against the creep of the 

FISA system into ordinary law enforcement. If ‘‘The Wall’’ comes 

down, this Committee should erect new safeguards against the 

abuses that do come from secret surveillance. Thank you. 

[The prepared statement of Mr. Swire follows:]

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PREPARED STATEMENT OF PETER P. SWIRE


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Mr. CHABOT. Thank you very much. And the Members now will 

have 5 minutes to ask questions of the witnesses, and I’ll recognize 

myself for that purpose at this time. 

Mr. Fitzgerald, let me refer to you first. Mr. Swire referred to the 

Mayfield case. And is the Mayfield case evidence of abuse of FISA, 

or is it evidence of abuse due to the PATRIOT Act? Or wasn’t the 

Mayfield case a result of erroneously read fingerprints by the FBI 

and Mr. Mayfield—or Mr. Mayfield’s own expert? 

Mr. FITZGERALD. I’m not handling the Mayfield case, but from 

my understanding of the public record, that was a situation—a terrible situation that arose out of mis-identification of fingerprints, 

both by the FBI mis-identifying Mr. Mayfield’s fingerprint as 

matching the exemplar they had, and by an expert selected by the 

defense and paid for by the court—made that same mistake. And 

I think the lesson of the Mayfield case is we have concerns about 

the fingerprint science. 

With or without the amendments to the PATRIOT Act, the actions taken under FISA could have been done, and should be done 

if you thought that the person’s fingerprint actually matched the 

materials involved in a bombing. So the problem we have is not 

with the PATRIOT Act, which didn’t facilitate what happened. The 

law provided for it anyway. It was bad information on the fingerprints. And I don’t see how the Brandon Mayfield situation casts 

section 218 in doubt. The Brandon Mayfield situation casts fingerprint science as something we ought to examine, but not the PATRIOT Act. 

Mr. CHABOT. Thank you. Mr. Kris, let me follow up with you 

here. In Mrs.—in Ms. Martin’s written testimony, she suggests that 

we amend FISA so that, if it turns out that the person who was 

under surveillance was not a terrorist or spy, the individual would 

be notified of the surveillance after some reasonable period of time. 

I’m concerned, however, that such a requirement could jeopardize 

sensitive investigations. For example, were the associate of a terrorist notified that he’d been under investigation, that associate 

would almost certainly tip off the terrorist that the Government 

was probably onto him as well. Do you share that concern? Or 

what comment might you like to make on that? 

Mr. KRIS. Well, I share your concern about the case you just described. If they mistakenly go up on someone who is connected 

with, but not himself, a terrorist, and then he tips off the other target, I think that would be very dangerous. 

I guess my basic sense of this is that notification is acceptable, 

except when it’s not. And right now, FISA has a provision under 

which—I think it’s 1825(b), under which, if there’s a search of a 

U.S. person home, and the Attorney General determines that there 

is no national security basis for maintaining the secrecy, then he 

shall inform the target. And I believe that provision——

[Sound of buzzer.] 

Mr. KRIS. Every time I talk. And I believe that provision is involved in the Mayfield case; although I’m not absolutely sure. To 

expand it to reach all forms of searches or surveillance, not just 

U.S. person house searches, I think conceptually would be okay, if 

you could figure out what the right standard was. Maybe it would 

73

be when probable cause is found to be lacking under Franks v. 

Delaware. 

But administratively, it would impose a pretty significant burden. I think there were some 15, 17 hundred FISAs last year. And 

it would, I guess, mean that the Government would need to review 

each and every one of those to determine whether it met the standard. So I have some concerns about that, on that theory, as well. 

Mr. CHABOT. Thank you. Professor Swire, do you agree with 

those you interviewed at the Department of Justice, that the greatest problem with the ‘‘primary purpose’’ test is that investigators 

generally don’t know in the early stages of an investigation whether the case will be primarily for intelligence or instead for law enforcement? And do you agree that ‘‘The Wall’’ did prevent sharing 

of vital information? 

Mr. SWIRE. Yes. 

Mr. CHABOT. Okay. 

Mr. SWIRE. I mean, I think that one of the questions comes up 

later on. So you’ve done your first wiretap. You didn’t know which 

way it was going to go; but now it’s up for renewal, and you really 

know it’s turning into a law enforcement investigation. And I think 

it makes sense for the law to push things toward law enforcement 

at that point, if that’s what’s really happened. Among other things, 

that means that it will get notice to people after the fact of the 

wiretap. 

Mr. CHABOT. Okay. And finally, Mr. Kris, in your written testimony, you suggest that keeping ‘‘The Wall’’ down will enhance the 

protection of civil liberties. And you stated this and described it to 

some degree in your opening statement. 

Could you say again why you believe that coordination between 

law enforcement and intelligence officials helps to safeguard constitutional rights? And I know you went into that, but I’d like to 

hear about it again. 

Mr. KRIS. Sure. I mean, I think there are two reasons to believe 

that it will be helpful in protecting civil liberties. The first is that 

it opens up these cases, these investigations, to a large number of 

energetic lawyers inside the Department of Justice, who previously 

really were limited in their access. And lawyers, I mean, for all 

their faults, you know, do have an awareness of and a respect for 

rules and laws. And it is for that reason, I think, that this country 

uses lawyer oversight to safeguard civil liberties in the area of national security. 

And so, if it’s done right, I think the opening up of these cases 

to many, many more lawyers will be a good thing, because they 

will be able to spot potential abuses early on and maybe put a stop 

to them. 

The other reason that I articulated—and I say it with some hesitation, because I’m afraid it will be misconstrued and misused—but 

there are cases, and I think there always will be, where somebody 

needs to get locked up, if you’re going to keep the country safe from 

terrorism. And today, if you can’t do it using traditional law enforcement because of ‘‘The Wall,’’ then I think you have to go to the 

alternatives. And one of those alternatives is military detention; 

which I believe, after Hamdi, civil libertarians do not smile upon. 

74

And so, for that reason as well, I think, if compared to the alternatives, prosecution in an open court, with a jury of 12, court-appointed lawyer, public access, and so forth, is not something that 

we need to be afraid of. 

Mr. CHABOT. Thank you. My time’s expired. The gentleman from 

Virginia is recognized. 

Mr. SCOTT. I think Ms. Martin and Mr. Swire pointed out that 

when you run these investigations where the primary purpose is 

something other than—when you get a FISA wiretap with the diminished—with no probable cause of a crime even required, you’re 

running a criminal investigation without probable cause. And when 

we changed ‘‘primary purpose’’ to ‘‘significant purpose,’’ it invited 

the question: What is the purpose of the wiretap, if the primary 

purpose wasn’t foreign intelligence? What was the purpose of the 

wiretap? 

And the Attorney General answered the question for us. He said 

it’s a criminal investigation, and then you kind of put in parentheses, ‘‘without having to fool with the probable cause.’’ Now, I 

suppose—is ‘‘probable cause’’ the problem, Mr. Fitzgerald? I mean, 

is the requirement that we get probable cause the problem? I 

mean, if we didn’t have to fool with probable cause—if we could 

start listening in and searching without probable cause, we could 

probably do a better job for law enforcement. 

Mr. FITZGERALD. I’d love to answer that question. It’s not the 

problem. There’s two misconceptions, I think, that are going on in 

the public debate. The first is that there’s no probable cause requirement in FISA. Let me speak from the perspective of a terrorism investigation. 

To get a probable—to get a FISA for a terrorism investigation, 

you have to have probable cause that the person is the agent of a 

foreign power; which means that they knowingly engage in activity—in sabotage or international terrorism, or activities that are in 

preparation thereof, on behalf of a foreign power—— Mr. SCOTT. Wait a minute. Keep reading. 

Mr. FITZGERALD. Okay. Or they knowingly aid or abet any person 

in the conduct of activities, or they knowingly conspire. 

Mr. SCOTT. Keep reading. 

Mr. FITZGERALD. That’s the end—Or as described in Subparagraph (a), (b), and (c). I’m talking about terrorism. 

Mr. SCOTT. Oh, oh. Oh, you’re talking about terrorism——

Mr. FITZGERALD. That’s what I said. 

Mr. SCOTT. —as far as the FISA. 

Mr. FITZGERALD. I said ‘‘terrorism.’’

Mr. SCOTT. Well, what about the foreign—foreign intelligence? 

You have probable cause you can get some foreign intelligence. 

What about foreign affairs? 

Mr. FITZGERALD. Okay, it’s not probable cause you can get foreign intelligence. It’s probable cause that the person is an agent of 

a foreign power. 

Mr. SCOTT. Right. 

Mr. FITZGERALD. You have to certify, in addition, that you’re 

going to gain foreign intelligence, my point being—— Mr. SCOTT. Wait, wait, wait. Whoa, whoa. What is foreign intelligence? 

75

Mr. FITZGERALD. Foreign intelligence, that’s one of the things you 

have to get. But before you can even certify that you’re getting foreign intelligence, you have to establish that the person is an agent 

of a foreign power. Under the terrorism statute, there is no—— Mr. SCOTT. Well, wait, wait a minute. Wait a minute—— Mr. FITZGERALD. Let me just—— Mr. SCOTT. Well, no, no, because people keep coming here, time 

and time again—this isn’t the first hearing we’ve had. 

Mr. FITZGERALD. I know. 

Mr. SCOTT. They come and say you need a FISA to protect from 

terrorism. 

Mr. FITZGERALD. Yes. 

Mr. SCOTT. And then you point out that you can get a FISA warrant for things—have nothing to do with crimes, have nothing to 

do with terrorism, if you can get foreign affairs. The example I’ve 

used is——

Mr. FITZGERALD. And I disagree with that. And if you could let 

me explain, because you do need——

Mr. SCOTT. Okay, okay, well, let me make my point——

Mr. FITZGERALD. Okay. 

Mr. SCOTT. —so you know what you’re disagreeing with. 

Mr. FITZGERALD. Okay. 

Mr. SCOTT. If I’ve got probable cause that somebody’s an agent 

of a foreign government, and we’re about to negotiate a trade deal, 

and I can get their bottom price on steel, can I get a FISA wiretap? 

Mr. FITZGERALD. That answer? I’ll be blunt. I don’t know. 

Mr. SCOTT. Okay. 

Mr. FITZGERALD. Because I—what I’m saying is I don’t—— Mr. SCOTT. The answer everybody else has given is ‘‘Yes.’’ And 

that’s how easy it is, and how unrelated to crime and terrorism 

these FISA wiretaps are. And if you can—if that’s all you’ve got to 

get, to get into somebody’s home, to get a wiretap and all this, then 

it’s a lot easier to run a criminal investigation without having to 

fool around with whether a crime is actually being committed. 

Mr. FITZGERALD. Except that, if that’s what you are doing, you’d 

be lying and making a false statement when you certified that the 

purpose of the investigation was to gather foreign intelligence. And 

when you try to bring that person into court for some drug crime 

and say, ‘‘We had a FISA wiretap,’’ and show it to the judge, for 

something else, it would be out of it. Let me make this point—— Mr. SCOTT. A significant purpose was getting the bottom price on 

steel, and you tripped over a drug deal. Or you knew the drug deal 

was happening, and you knew he was negotiating a trade deal. 

Mr. FITZGERALD. Sir, all I can tell you is this. In Chicago, we 

spend—I spend a lot of my time prosecuting drug cases and gang 

cases. We have never contemplated, much less done, anyone going 

near a FISA court to get a drug wire. We’ve got plenty of other——

Mr. SCOTT. Then what was the Attorney General talking about 

when he said, if the primary purpose of the FISA wiretap wasn’t 

foreign intelligence, what was it? Why did he say ‘‘criminal investigation’’? 

Mr. FITZGERALD. And if I could get to the second part of what 

I wanted to say, it’s most of those predicates require probable cause 

of activities which themselves are crimes when people commit terVerDate 0ct 09 2002 07:50 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042805B\20877.000 HJUD1 PsN: DOUGA
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rorist acts. The point being, I think that the primary purpose itself 

is a fiction. And I’d like to explain that, because I think it’s important. 

It may be that people say early on you don’t know what the primary purpose is. Let me give you an example. If a CIA officer came 

into my office tomorrow and said, ‘‘We have sensitive information 

coming from overseas that someone’s going to put a bomb in the 

middle of Chicago next week, and take lives,’’ we would have the 

CIA in the room sharing their information. We would put the FBI 

in charge. We’d have several—lots of agents in Chicago. We’d have 

the Chicago Police Department. And we’d say, ‘‘Let’s stop this 

bombing. Let’s get the information, and let’s go prevent it.’’

If you ask the CIA officer under truth serum what is the primary 

purpose in what he’s doing, I have no doubt that he or she would 

say, ‘‘This is an intelligence operation to stop a bombing.’’ If you 

ask the Chicago Police Department, ‘‘What is the primary purpose 

of this operation?’’ he no doubt, or she no doubt, would say, ‘‘We 

are trying to prevent the crime of a bombing that—’’

Mr. SCOTT. You can’t get a criminal warrant on something like 

that? 

Mr. FITZGERALD. If it’s coming from overseas, it might be a FISA. 

It may not be a criminal warrant, if it was classified information 

that we could not use. If it was an Al-Qaeda operation doing this 

bombing on behalf of a terrorist group, that is appropriate for a 

FISA. 

My point being, different people involved in the same operation 

may have—one may have an intelligence purpose; one may have a 

criminal purpose. And if I, as the prosecutor, have to sit there and 

figure out, ‘‘How will a court review this later?’’ if there’s a bombing prevented and people are arrested, and have to decide, ‘‘I can’t 

use FISA, I can’t use title III, I’m paralyzed’’—we need to know 

that there’s a legitimate intelligence purpose in trying to prevent 

a terrorist group from bombing a major metropolitan city, and we 

go forward. 

We can’t sit around having a philosophical discussion, saying, 

‘‘Who thinks it’s intelligence? Who thinks it’s law enforcement? 

Where does the balance go?’’ We can’t do that. And that’s what we 

used to do. 

The fellow in the back who testified this morning, Rob Khuzami, 

and I worked a case together in New York in 1994, where people 

were plotting to blow up the bridges and tunnels in New York. And 

no one wanted to bring the prosecutors in until the end because 

they were afraid that, by talking to prosecutors, it would look like 

a law enforcement matter, and the FISA may later be thrown out. 

We can’t go through a world where we don’t bring in the cops 

and the prosecutors to decide what to do because we’re afraid the 

consultation will color how a court looks at it later. So I think it’s 

a fiction that a primary purpose exists. There are purposes. And 

if you have a legitimate intelligence purpose, I think we need to be 

able to proceed. 

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

The gentleman from Indiana, Mr. Pence, is recognized for 5 minutes. 

77

Mr. PENCE. Thank you, Mr. Chairman. And thank you for holding this hearing. I had—and I want to thank the panel. This is an 

extraordinary panel of experts and public servants. And I’m most 

especially pleased to have the opportunity to hear from and to meet 

Mr. Fitzgerald, whose reputation in law enforcement is highly regarded in this nation. And I’m grateful for your insights. 

Two questions specifically for the panel. I’m very intrigued in 

reading your statement, Mr. Fitzgerald. I was literally added to the 

Judiciary Committee a week before we wrote the PATRIOT Act. I 

haven’t crammed like that since law school. But I’ve been a defender of this act, believing that it has balanced our civil liberties 

in this country with positive advances in our ability to confront the 

enemies in our midst. 

And I’m struck in your testimony by a variety of examples that 

you use; even one, I believe, that had to do with the ’93 bombing 

of the World Trade Center and one Sheikh Omar Abdel Rahman 

who there were—according to your testimony, that there were 

criminal and intelligence investigations, but that prosecutors—because of ‘‘The Wall’’ that we’re talking about in this hearing, prosecutors didn’t have that information. 

And it is—is it accurate to say in that case that prosecutors were 

in the dark about the details of a plot that our intelligence officials 

knew about by Sheikh Rahman to bomb the Holland and Lincoln 

Tunnels, the FBI Building, the UN, the George Washington Bridge, 

until very late in—very late in that investigation; and that that’s 

materially changed by the section of the PATRIOT Act we’re here 

to debate? 

Mr. FITZGERALD. Yes. My understanding is that the first time a 

prosecutor was told about it, they were told very little, other than 

that it was an operation going on. And because FISAs were up, 

they were very concerned about contacts with prosecutors making 

it look like it was a primarily criminal purpose. And so they were 

brought in very late in the day, and decided when things had to 

be taken down, so to speak. 

And a similar experience happened around the millennium, when 

there were threats to our country. And myself and my partner, another lawyer, sat by the phone for many days going up to the millennium eve, waiting for a phone call, if there was anything we 

could be told; while people on the intelligence side dealt with the 

case. 

After the PATRIOT Act, if there were a threat like that, we’d be 

sitting down at meetings with the FBI, CIA, and exchanging information and deciding what we ought to be doing appropriately that 

is lawful and that will best protect our country. 

Mr. PENCE. Thank you. It’s just amazing to me. I think any 

Americans looking in on television at this hearing would be astounded at what used to be the practice—the left hand not knowing 

what the right hand is doing—between intelligence and domestic 

law enforcement. 

Mr. Kris, you testified that you thought that if section 218 sunsets, that law enforcement would have greater authority. 

Mr. KRIS. Yes. 

Mr. PENCE. Which flies in the face of many of the critics of ‘‘The 

Wall.’’ Now, I know you discussed this in your written testimony. 

78

I’m looking at page 12 of your written testimony and—but I’d love 

for you to elaborate on that, because I think it’s an intriguing 

point. Because as a limited-Government conservative, I’m always 

interested in how do we advance national security—— Mr. KRIS. Right. 

Mr. PENCE. —and do that in a way that’s consistent with limiting Government intrusion. 

Mr. KRIS. Right. Well, I think the answer to your question really 

depends on an understanding of the decision of the Foreign Intelligence Surveillance Court of Review. 

Mr. PENCE. Uh-huh. 

Mr. KRIS. What that court held was that, as enacted in 1978, 

FISA did not discriminate between law enforcement methods of 

dealing with or protecting against terrorism and espionage and 

other foreign threats to national security, and any other method—

a traditional intelligence method, diplomatic method, and so 

forth—of dealing with those threats. 

So, the court basically held that, as enacted in 1978, FISA would 

have allowed surveillance even where the sole purpose was to prosecute a terrorist or a spy. The distinction, the court said, was not 

the nature of the method used to address the threat—law enforcement methods or some other method—but rather, the nature of the 

threat that was being addressed—a terrorist threat, as opposed to, 

say, a routine domestic crime, bank robbery or what have you. 

But the court recognized that for 23 years everybody misread the 

statute in all three branches of Government. And until the Department figured it out and advanced the argument in the appeal, and 

the court agreed, nobody knew. Which meant that at the time the 

PATRIOT Act and section 218 in particular was enacted, the misunderstanding prevailed. And so the court held, section 218, in effect, codified that misunderstanding and created this false distinction between law enforcement methods of dealing with these 

threats and all other methods. 

Now, if 218 were to sunset, I think the misunderstanding would 

sunset, too. Or at least there’s a substantial argument to that effect. 

Mr. PENCE. Well, you would lose that element of the statute that 

would clarify what the significant non-law enforcement purpose 

standard. 

Mr. KRIS. And so I think you would probably—and again, I 

haven’t done the really heavy lifting that would be necessary to determine this authoritatively. But I think you can see the logic of 

the argument that if 218 sunsets, you revert to the original—albeit 

newly discovered—meaning of the statute. 

Mr. PENCE. Uh-huh. 

Mr. KRIS. And that is why I believe if 218 sunsets without more, 

the Government may have more power than it does today. 

Mr. PENCE. So——

Mr. CHABOT. The gentleman’s time—— Mr. PENCE. —Americans’ privacy rights were strengthened by 

the PATRIOT Act, in that regard. 

Mr. KRIS. The PATRIOT Act cut back on Government power. 

That is what the court of review said. 

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

79

The gentleman from Ohio seems to be chomping at the bit there, 

so go ahead, if you have a quick point. 

Mr. SWIRE. Well, I think another way to look at it is there’s a 

circuit split between the five or six circuits that went one way, and 

the FISA Court of Review that went the other way. Because there 

were numerous circuit court judges that had what the Justice Department found was a misunderstanding. 

Mr. CHABOT. Thank you. We were just getting ready to go to a 

second round. Two Members have just gotten here. Did you want 

to get in on the second, or you still want to get in on the first? 

Ms. JACKSON LEE. First. 

Mr. CHABOT. You want to get in on the first. Okay. The 

gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. We have seemingly been patriotic now for a couple of days, and we’ve lived with 

the PATRIOT Act for a longer period than that. I want to thank 

the witnesses for their testimony, and the Ranking and Chairman 

for this hearing. 

I was just meeting with some constituents, and one of their chief 

issues was the question of civil liberties. Isn’t it interesting, in 

2005, that that doubt of having civil liberties is being raised by 

Americans really across the land. 

I think the important point to be made possibly—or for those of 

us who sit on this side of the panel is that there is not a divide 

in wanting to make sure that the homeland is secure; or, frankly, 

that there are not the basic and enhanced resources for law enforcement. But we have to be, in essence, the wall, the divide, the 

protector of excessiveness, and the representation that the present 

state of the law is not adequate. 

So I simply—I appreciate the U.S. Attorney in his deciphering 

‘‘primary’’ and ‘‘significant’’ and I will—Mr. Fitzgerald, I want to 

raise some questions with you. But Mr. Swire, if you could let me 

know, I know that there have been mistakes that the Department 

of Justice has made—some 70 of them, as I understand it—about 

information sharing, unauthorized dissemination of information. In 

fact, I think Attorney General Janet Reno first interjected into trying to give guidelines of where the FBI could begin to share information with the U.S. attorneys. 

My question to you is to pick up where my colleague, Congressman Scott, was as I was listening to his inquiry about this ‘‘significant’’ and ‘‘primary’’ question. But also, have we even fixed some 

of the problems that are generated from the misrepresentations of 

information sharing, unauthorized dissemination of information? 

And how do we know that the Department has any knowledge of 

these misrepresentations and has any ability to account for them? 

And let me make this other point. We learned in an earlier hearing today that we have the right to get certain information, the 

Congress does, under FISA. And I’m wondering whether we are 

even getting that information. Not only do we have the right to get 

information, but the public has a right to have pronouncements 

being made. 

In your profession, or as you have traveled the highways and byways, are we fulfilling our responsibility? Are you getting pronouncements from the DOJ, or local DOJ, about anything dealing 

80

with FISA? I yield to the gentleman. And I may interrupt you because my green light may go and I may want to deal with Ms. Martin or Mr. Kris and Mr. Fitzgerald. 

Mr. SWIRE. Thank you, Congresswoman—— Ms. JACKSON LEE. Yes, sir. 

Mr. CHABOT. The green light just went so—— Ms. JACKSON LEE. I’m on a beige light now, but that’s all right. 

Mr. SWIRE. A couple of points. One is attached to my testimony 

are possible oversight questions, to try to ask some questions that 

maybe the Committee would find useful to ask the Department of 

Justice. I think that having a greater oversight by the Judiciary 

Committees going forward—if this turns out to be really a criminal 

statute so often, maybe the Judiciary Committee should get the 

same oversight information that the Intelligence Committee—— Ms. JACKSON LEE. But do you know if they’ve answered any of 

the problems dealing with the question of 70 misrepresentations? 

Mr. SWIRE. Well, it points out that there’s no adversary process 

in the FISC court—in the FISA court. And the court there was able 

to discover that more or less on its own. And so we need to figure 

out how that oversight is going to happen in the future. 

Ms. JACKSON LEE. Ms. Martin? 

Ms. MARTIN. Well, I’d like to make the point that I think there 

are really two separate issues being talked about here. One is sharing and the failure to be able to share before September 11th, described by Mr. Fitzgerald. And I think we all recognize that that 

was a mistake and that it shouldn’t happen again; that we don’t 

want to write in a legal prohibition on that kind of sharing. 

But the question I think that the Committee faces in connection 

with 218 is not a sharing question, but is the question of when are 

the FISA authorities going to be allowed to be used? The FISA authorities allow the Government to secretly search Americans’ homes and secretly wiretap their telephones. 

And those are extraordinary powers, going to the core of the 

fourth amendment. One of the core fourth amendment protections 

has been that when a person’s home is searched and their telephone conversations are tapped, after the fact they’re told about it. 

FISA is—the whole point of FISA is that you don’t have to tell the 

person that that happened. 

Section 218 broadens the circumstances under which the Government can use those extraordinary powers. And I think that the 

question the Committee needs to focus on is, given that we are 

going to have those extraordinary powers, given that we of course 

want the information collected by FISA to be freely available to law 

enforcement and prosecutors, what kinds of protections are we 

going to have against abuse of those secret powers? And the 

Mayfield case is an example, I think, of that problem; which I’d be 

glad to talk about. 

Mr. CHABOT. The gentlelady’s time has expired. I think the gentleman on his time is going to ask for a follow-up, because we’re 

already on 7 minutes on yours. 

Ms. JACKSON LEE. If Mr. Kris and Mr. Fitzgerald can answer, I’d 

appreciate it. 

Mr. CHABOT. Well, they will, but I don’t want to drag this out 

too long. The gentleman from California is recognized at this time. 

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Mr. LUNGREN. Thank you, Mr. Chairman. And I would ask Mr. 

Fitzgerald and Mr. Kris to please respond to the last comments 

made by Ms. Martin with respect to the fact that the—that 218 expanded in these areas these kinds of searches, and does not give 

adequate notice; and seemed to suggest that therefore it is inappropriate. 

Mr. KRIS. I’ll speak to the 218 question, because I’m actually prepared to say that it is essentially the case that 218 and the provisions that tear down ‘‘The Wall’’ don’t affect the ‘‘who,’’ the ‘‘what,’’ the ‘‘where,’’ the ‘‘when,’’ or the ‘‘how’’ of FISA surveillance. What 

they really do is permit the two hands of the Government—law enforcement and intelligence—to talk and communicate in a normal 

way, one to the other. 

When ‘‘The Wall’’ is up, the Government is free to do any surveillance that it can do when ‘‘The Wall’’ is down, with one condition; 

and that is, the prosecutors have to be kicked out. And there is no 

change connected to ‘‘The Wall’’ in the probable cause standards or 

the definitions of ‘‘agent of foreign power’’ or ‘‘foreign power.’’ And 

so the same people can be targeted to the same extent on the same 

facilities. 

The difference is that law enforcement officials can be involved 

and coordinate with the intelligence officials. The Government is 

essentially no longer put to that very difficult choice between either, A, coordinating or, B, conducting the surveillance. They can 

now do both. So I guess that’s my basic response on that. 

Mr. LUNGREN. Mr. Fitzgerald? 

Mr. FITZGERALD. He said it better than I would have, so I agree. 

Mr. LUNGREN. All right, you’re not going to get off that early. Mr. 

Fitzgerald, in Ms. Martin’s testimony, her written testimony, she 

suggests that Congress should take the opportunity to bring the 

FISA information in criminal proceedings ‘‘in line with basic due 

process requirements.’’ It’s my understanding that the current procedures governing FISA in criminal cases have been upheld as constitutional in Federal courts across the country. Are you aware of 

any Federal court that has held that the current procedures are 

unconstitutional? 

Mr. FITZGERALD. No, and in the several times it’s been litigated 

in cases I’ve participated in, it’s always been held to be constitutional and to comport with due process. 

Mr. LUNGREN. Even in the event that no courts have found it unconstitutional, do you see any reason for reforms? And if so, what 

reforms would you suggest? 

Mr. FITZGERALD. I, personally, don’t. I think that when judges review these materials they do review them to make sure that they’re 

in order. And I think that—I think it’s appropriate, given the sensitive nature of the material that goes into applications, often 

which can come from very sensitive sources or foreign governments 

who do not wish what they contribute to be exposed and the 

sources and methods. 

Mr. LUNGREN. You talked in your testimony about the investigation of Osama Bin Laden in the 1990’s. Based on that experience, 

how damaging do you think ‘‘The Wall’’ was to our nation’s 

counterterrorism efforts during that time? 

Mr. FITZGERALD. I think it was extremely damaging and——

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Mr. LUNGREN. Why? 

Mr. FITZGERALD. I would describe it this way. National security 

and civil liberties are both extremely important, so I’m going to 

make an analogy to a game; not because I don’t think life and liberty and privacy aren’t serious. But if you played football and you 

were on defense, and your job was to make sure no one attacked 

you, and where the risk were lives, you would not tell the defense 

that they have to separate into two huddles and can’t talk to each 

other; which is what ‘‘The Wall’’ did. 

And if you went and played a game like that, where two separate 

huddles couldn’t collaborate, and one day they finally said, ‘‘You 

know what, you could actually talk before the other team tries to 

score a touchdown,’’ where the price of a touchdown is lives, you 

would recognize that there’s no way we should go through a dysfunctional system where we’re not talking to each other, trying to 

defend against a lethal threat. 

Mr. LUNGREN. Do you understand the concerns that some people 

have, that tearing down ‘‘The Wall’’ would in some way jeopardize 

our protections of individuals’ privacy rights? 

Mr. FITZGERALD. I do. I absolutely understand that, for two reasons. I understand privacy rights are very important. I want my 

privacy rights protected, so I don’t at all cast any doubt on why 

people would be concerned about their privacy rights. And I understand the history from the ’60’s and ’70’s, why people would be concerned about that. 

From a pragmatic point of view, I agree with David Kris. I think 

we do our best job, not just of protecting national security, but protecting privacy rights and civil liberties, if we have the law clear, 

and we put lawyers and others in the room and say, ‘‘These are the 

rules of the road,’’ and we work together and make sure people 

don’t make mistakes. 

So I think that ‘‘The Wall,’’ while it protects national security, 

doesn’t jeopardize civil liberties—we want a system where we’re all 

operating on the same set of laws and rules, and follow them, and 

make sure that people who are responsible, and have law degrees 

that they want to keep and jobs they want to keep, follow the rules 

and make sure that everyone around them follows the rules. 

Mr. CHABOT. The gentleman’s time has expired. We are going to 

go to a second round at this time, so I recognize myself for 5 minutes. 

Mr. Kris or Mr. Fitzgerald, let me ask you this question. Do terrorist organizations work with other criminal elements, such as 

drug dealers and street gangs and other violent criminals of that 

nature? And if so, can you give some specific examples of that? And 

how common is this cooperation or association between terrorists 

or terrorist organizations and other criminal elements? 

And prior to enactment of 218, how would the law enforcement 

agency in charge of the criminal investigation coordinate with the 

foreign intelligence agency in charge of the terrorist investigation? 

And how cumbersome was that process? And again, some of these 

things we’ve already touched on time and time again. 

Mr. FITZGERALD. I will give you my limited perspective. I do 

know there have been occasions in the past where gangs and terrorists have linked up. I think going back to the late ’80’s, there 

83

was a Chicago gang that tried to get shoulder-fired missiles for a 

foreign country—I think Libya—and that was exposed and later 

prosecuted. So that has happened. 

In my personal experience, I’ve more seen more incidental involvement of gang members or street criminals. For example, the 

plot where they were trying to blow up the bridges and tunnels in 

New York City: they had to get stolen cars; they had to get guns; 

they had to get things like that; where in the course of an investigation they were dealing with street-level criminals, just because 

they needed fake passports; they needed cars; they wanted to get 

detonators. So they got into this with the criminal underworld because they needed to get logistics. But it was more of a—the plan 

was being done by the terror ring, and they were reaching out to 

other people just to get logistics. 

I don’t see us using FISA to go after a gang problem, at all. What 

I do see is if FISA’s going after a terrorist problem, we may incidentally pick up someone if they turn to a gang member or street 

criminal as part of their effort to get a, you know, weapon or a detonator, that sort of thing. But I haven’t seen yet a situation where 

we haven’t been able to just deal with it as a terrorism issue where 

you might incidentally come across street-level criminals. And I 

hope it stays that way. 

Mr. CHABOT. Thank you. Mr. Kris, anything you want to add to 

that? 

Mr. KRIS. I’m not going to say anything about any particular 

cases, I don’t think, in an open hearing; and as a former Government lawyer, not a current one. 

I will say that there are cases that I know of that are public, in 

which terrorist organizations or other national security threats 

have used what would otherwise be sort of more traditional kinds 

of crime, to finance or facilitate their terrorist acts. We had cigarette smugglers, for example, who were raising money to buy weapons. And that can happen. 

I think, legally, those kinds of crimes are treated like foreign intelligence crimes, under the new law tearing down ‘‘The Wall.’’ And 

FISA could be used to gather evidence of those kinds of crimes. It 

can’t be used to gather evidence—or primarily to gather evidence 

of ordinary crimes that are not being committed to facilitate those 

kinds of national security threats. 

Mr. CHABOT. Thank you. Ms. Martin, you stated in your written 

testimony, and I think today orally as well, that the FISA statute 

authorizes secret surveillance on less probable cause of criminal activity than is authorized by the fourth amendment in criminal investigations. Some have claimed that FISA has no probable cause 

requirement. Is it your opinion that FISA has a probable cause requirement, or not? Would you comment on that, please? 

Ms. MARTIN. Yes. It’s clear that it does have a probable cause requirement, and the probable cause requirement is, as Mr. Fitzgerald stated, that someone be an agent of a foreign power. There 

are then paragraphs defining what an agent of a foreign power is. 

In the terrorist context, it’s pretty clear that that would be the 

equivalent of probable cause of criminal activity. But in the clandestine intelligence gathering context, which also applies to FISA, 

it’s also clear that—if you read the FBI’s own memo on the use of 

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FISA, that the probable cause required is less than the probable 

cause required for a purely criminal warrant in that context. Which 

is not to say there’s no probable cause and that there is a criminal 

nexus, but the—And I see Mr. Kris agreeing with me, so I’ll just 

end——

Mr. CHABOT. Okay. 

Ms. MARTIN. —before I say anything else. 

Mr. CHABOT. Okay. My time is about ready to expire. Let me ask 

one more question, if I could. Either Mr. Kris or Mr. Fitzgerald, 

would you explain why the FISA Court of Review concluded back 

in 2002 that section 218 of the USA PATRIOT Act is constitutional? And as the Chairman of the Constitution Subcommittee, I’m 

particularly interested in that. 

Mr. KRIS. I’ll try to—I’ll try to tackle that. The court basically 

held that FISA is constitutional because it is reasonable, and reasonableness is the touchstone of analysis under the fourth amendment. 

The court specifically relied, I think, on two prior Supreme Court 

decisions. First, the Keith case, United States against the United 

States District Court, from the 1970’s; and the more recent decision 

of City of Indianapolis v. Edmond. 

Keith held that in the case of surveillance involving domestic terrorists, standards different than and lower than those in title III 

would be permissible, because of the special nature of the threat 

that those kinds of domestic terrorist cases present. And I think 

that reasoning applies, a fortiori, to FISA, which involves foreign 

threats to national security, which are even more dangerous and 

more difficult to investigate. 

In Edmond, the Supreme Court drew a distinction between ordinary and special kinds of law enforcement in its analysis and discussion of a checkpoint. And so I think the basic reason that the 

Court upheld FISA is that, like the statute which distinguishes between kinds of threats, rather than kinds of responses to threats, 

so, too, the fourth amendment ultimately draws that distinction. 

And surveillance is lawful under FISA if it is addressing the kind 

of threat that the statute deals with, regardless of the kind of 

method being used to deal with the threat. 

Mr. CHABOT. Thank you very much. My time has expired. 

The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Kris, did I understand you to say that domestic—investigation of domestic terrorism 

did not require the same level of probable cause as other criminal 

warrants would require? 

Mr. KRIS. Under current statutory law, that is not correct. Those 

would proceed under title III, the conventional criminal statute. 

But under the Constitution, the Supreme Court held in Keith, 

standards lower than title 3 maybe—or maybe not, in the probable 

cause area—would be tolerable. 

Congress has never taken up the Court on that invitation in 

Keith, and has not enacted a special statute governing domestic 

terrorism. But Keith indicates that it could do so. 

Mr. SCOTT. But the present state of the law is that domestic terrorism cannot be investigated with a lower probable cause standard 

than other crimes? That’s the state of the law today? 

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Mr. KRIS. Yes. 

Mr. SCOTT. Ms. Martin, you indicated about a criminal nexus to 

title—to FISA once. Did you say you needed a criminal nexus, or 

could have a criminal nexus? 

Ms. MARTIN. Well, when you’re investigating ‘‘clandestine intelligence gathering,’’ as opposed to terrorism, it’s not defined to equal 

criminal activity. It’s defined to include activity that might be 

criminal. So you could say——

Mr. SCOTT. And it could——

Ms. MARTIN. —that it’s connected to, but it’s not a criminal probable cause standard. 

Mr. SCOTT. It could be connected to the conduct of foreign affairs 

of the United States. 

Let me ask Mr. Fitzgerald. Your reading—What code section 

were you reading off of when you were responding to the other 

question? 

Mr. FITZGERALD. Fifty—Title 50, United States Code, Section 

1801. When I talked about the agent of a foreign power, I was 

reading from section ‘‘b,’’ and when I read from international terrorism, I think I read ‘‘b,’’ and the terrorism parts were subsection 

‘‘c’’ and ‘‘e.’’ They also have in there the sections about clandestine 

intelligence activity. 

Mr. SCOTT. Okay. Because I’m reading Title 1, section 101. When 

you talk about getting a FISA warrant, you can get it if you’re getting foreign intelligence. And foreign intelligence information includes the conduct of foreign affairs of the United States; which 

may or may not have anything to do with a criminal activity. 

Mr. FITZGERALD. And you’re reading from subsection ‘‘e.’’ And my 

point being, you have to satisfy the standard earlier that the person is an agent of a foreign power. If you satisfy that—and to be 

an agent of a foreign power, to engage in clandestine intelligence 

activity, that is a crime. To be an unregistered agent of a foreign 

power is a crime in itself. 

Mr. SCOTT. Well, if you are a registered agent of a foreign power. 

Mr. FITZGERALD. If you are a registered agent? Okay. 

Mr. SCOTT. Yes. 

Mr. FITZGERALD. Okay. Then if you’re a registered agent of a foreign power, then that may not be a crime, because you’re obviously 

not—you’ve registered. But if you’re engaged in clandestine intelligence activities, you’re a spy. 

Mr. SCOTT. Well, if you are a registered agent of a foreign 

power——

Mr. FITZGERALD. Engaging in clandestine intelligence activity. 

Mr. SCOTT. No. No, we’re going to get some information from 

you. And the idea—your bottom price on a steel deal we’re going 

to negotiate tomorrow afternoon. If I know you’re going to be talking to people back home, I can wiretap your phone and listen in 

to get that information. And that’s a FISA wiretap. No crime; just 

getting information. Right? 

Mr. FITZGERALD. And as I told you before——

Mr. SCOTT. You don’t know. 

Mr. FITZGERALD. That part of it, I’m less familiar with. I could 

just read the statute——

86

Mr. SCOTT. Okay, well, see, we’ve got to deal with the whole 

thing. You’re dealing with terrorism, and we’re dealing with the 

code and determining whether we’re going to allow this to continue. 

And the idea is, since we changed that primary purpose to a significant purpose, the Attorney General told us that you can run 

criminal investigations out of FISA on these lower standards. 

Mr. FITZGERALD. And I could just add that the PATRIOT Act did 

not change that definition. The FISA statute, it didn’t change 

the——

Mr. SCOTT. That it changed to say ‘‘primary purpose’’ to ‘‘significant purpose’’; which invites the question, if it’s not the primary 

purpose, what is? 

Mr. FITZGERALD. And my only point being that if it’s lawful to 

listen in on those trade negotiations, it was lawful before the PATRIOT Act, and afterwards. 

Mr. SCOTT. Yes, but you can’t run a criminal investigation. You 

can’t use it as an excuse to running a criminal investigation if that 

wasn’t your purpose. 

Mr. FITZGERALD. And you can’t do it here, if your primary purpose isn’t to gain foreign intelligence. You have to certify that. That 

would be false if your——

Mr. SCOTT. Well, that’s why we changed the law, so you could 

run a criminal investigation without probable cause. Let me ask a 

quick question, before all my time runs out. How do you challenge 

a FISA wiretap that was inappropriate? In criminal investigation, 

you challenge it using the exclusionary rule. How do you challenge—if they shouldn’t have gotten the wiretap to begin with, if 

it was really a ruse, how do you challenge it? 

Ms. MARTIN. It’s impossible. Not only would you not be able to 

challenge it, you would never know about it. And that’s the whole 

difficulty. And that’s what Brandon Mayfield’s case illustrates. 

There they got a secret FISA search of his home, and it turns out 

he’s innocent. There’s nothing in the statute that required the Attorney General or the Justice Department to inform him that the 

FBI had been inside his house. And the Justice Department made 

that clear when they did inform him, because they said, ‘‘We’re 

going to tell you that, but we didn’t have to tell you we were inside 

the house.’’ And the reason, apparently, they told him that they had been inside the house was only because he had been mistakenly jailed. So 

if he hadn’t been jailed, he never would have been told that they 

had a wiretap or a physical search of his house, when it turned out 

it was a mistake. 

And that’s the problem that I think this Committee needs to look 

at. And that problem did pre-exist section 218 of the PATRIOT Act. 

There’s no doubt about that. But it’s been exacerbated. 

Mr. CHABOT. The gentleman’s time has expired, but if you want 

to follow up just for a minute——

Mr. SCOTT. I do want to follow up. I wanted Mr. Swire to comment. 

Mr. SWIRE. The simple point I wanted to make is that in Kate 

Martin’s testimony, she proposes legislative fix that’s based on 

CIPA, classified procedures act, which came after 1978, and is a 

better way for handling those challenges than the ’78 law had. BaVerDate 0ct 09 2002 07:50 Jun 27, 2005 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\042805B\20877.000 HJUD1 PsN: DOUGA
87

sically, we should update our 1978 version of FISA to the things 

we learned over time for how to handle the classified information 

and have those challenges done better. 

Mr. SCOTT. Okay. 

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

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

minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman. Mr. Kris, I’d like to direct this to you, because listening to the comments and the questions of the gentleman from Virginia prompts this question; which 

is when we’re talking about FISA and he’s talking—and we’re talking about a non-criminal act—we’re talking about the position another country may have on trade—FISA can only come into effect 

if the individual involved is a foreign agent—an agent of a foreign 

government; is that not correct? 

Mr. KRIS. Yeah. I mean, I think there’s two separate legal requirements here that may be getting a little bit mixed. 

Mr. LUNGREN. Yes. 

Mr. KRIS. And maybe I can try to differentiate. To be a FISA target, you have to be an agent of a foreign power, or a foreign power, 

and the Government has to establish probable cause, the court has 

to find probable cause. And that’s a requirement that, just as Ms. 

Martin says, in some cases, particularly where it’s a terrorism case 

involving a U.S. person, it’s essentially the same probable cause 

standard as in a criminal case, plus some additional requirements. 

But in the espionage context, it’s a slightly different standard. It 

is activities that involve, or may involve, or are about to involve a 

crime; which is—and the legislative history is very clear on this—

somewhat lower than the traditional criminal probable cause 

standard. That is what the statute says. 

The other requirement in a FISA application is a certification 

from some high-ranking Executive Branch official, like the FBI Director, that now a significant purpose is to obtain foreign intelligence information. There are two kinds of foreign intelligence information. There’s the kind that is normally at issue in these kinds 

of ‘‘Wall’’-related cases, what I will call counter-intelligence, or protective intelligence, information that is relevant or necessary to 

protect against a series of specified threats—terrorism, attack, so 

forth. 

There is also a second definition in foreign intelligence information, and I’ll call that affirmative, or positive foreign intelligence. 

And that is information with respect to a foreign power or foreign 

territory that relates to or, if concerning a U.S. person, is necessary 

to the defense or security of the United States or the conduct of foreign affairs. 

And it is absolutely correct that information that is relevant to 

a trade negotiation would be, I think, or could be foreign intelligence information, under this second definition. However, I will 

also say that information is foreign intelligence information under 

that second definition only if it is with respect to a foreign power 

or a foreign territory. 

And if you read the legislative history there, they contrast that 

‘‘with respect to’’ language. On the one hand, with respect to a foreign territory or power; on the other hand, not about a U.S. person. 

88

And so it really is, I think, if you read the legislative history, the 

kind of information that you would get from monitoring visiting 

foreign trade delegations, if that’s what you were going to do. And 

I’m not saying we do it or not. 

Mr. LUNGREN. As opposed to an American citizen. 

Mr. KRIS. Right. And the two requirements are, in any event, 

independent. Because even if—it would be a very strange case, I 

must say, in which the Government would assert, on the one hand, 

there is probable cause that this U.S. person is a terrorist, or is 

knowingly engaged in international terrorism or activities in preparation therefor; and yet, our primary purpose is to gather information about a trade negotiation. That would be a very odd 

disjunction. 

And I think—I don’t say you should rely on the good faith of the 

Government officials involved. Having been one, I know better than 

that. But it would certainly be a difficult articulation for the FBI 

Director to make. 

Mr. LUNGREN. Well, see, what I’m trying to do is figure out if 

we’ve been hearing about a straw man for quite a bit of time in 

various questions, or whether this is a serious problem. I mean, I’m 

aware of no abuse in this area. But is it a serious problem, where 

an American citizen has to worry about somehow FISA being used 

to invade their privacy under some tortured version of these terms? 

I’m just asking—— Mr. KRIS. Yes. 

Mr. LUNGREN. —for your help on this, looking at this statute. 

Mr. KRIS. I think my basic answer to that question is ‘‘No,’’ because the probable cause requirements in 1801 of Title 50 remain 

the same, both before and after the PATRIOT Act, and still require 

the Government to make a substantial showing of criminality in 

clandestine intelligence cases, and what amounts to a full-blown 

traditional criminal showing of probable cause in a terrorism case, 

regardless of what prong of the foreign intelligence definition they 

are proceeding under. 

Mr. LUNGREN. Thank you. 

Mr. CHABOT. Does the gentleman yield back? The gentleman’s 

time has expired. 

The gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. I’d like to go back to Ms. Martin. But before 

I briefly turn to you, I just want to state for the record, to make 

it very clear, you were delineating two very horns of the dilemma 

that Members of this Committee and Congress have. And that is, 

of course, to recognize the vitality of information sharing, i.e., the— for lack of a better word, the sort of ‘‘Three Stooges’’ approach pre9/11. And I don’t say it unkindly. But I think many of us were sort 

of aghast about the lack of sharing that we thought might have 

been helpful. And of course, that was a combination of domestic 

and international only because the individuals came into the country. But there were some that were there in the country doing activities that did not seem to funnel in one place. So I don’t disagree 

with you. And I think I don’t even glean that we would not be concerned that we can’t do a better job at information sharing. 

I think there’s some question of whether or not—we have this 

national intelligence director, which we now have, and, you know, 

89

whether that bridges any necessary intelligence necessities because 

of the CIA, because of the FBI and other elements, that need to cooperate. 

But the other part of it is—and these are my words—the broadness, the depth, of the power of the Government in utilizing FISA, 

and when to use this broad-based power; which is what my concern 

is. I’ve seen some looking maybe aghast or shocking from Mr. Kris 

when I mentioned the ‘‘Three Stooges,’’ but this is—we’re all big 

boys and girls up here and we can face conversation that may be 

somewhat pointed. 

Again, it’s not a personal commentary. It is just a commentary 

of what we’ve found ourselves. And when I say that, let me put everybody in the same boat together. Everybody was equally shocked 

that maybe there were not procedures in place. 

As I look at your testimonies—so my interest is really to do as 

you’ve noted. In fact, I’ve noted in your testimony that the national 

security study deals with the question of protecting us and civil liberties. And I assume you’re consistent in your work. And I think 

that’s a fair balance. Maybe we’re not—we probably won’t agree on 

many issues. I happen to be on Homeland Security. I say that— I’ve said that before. But I think that you wouldn’t ask a Member 

of Congress that they are not interested in that part of security— of securing the homeland. But it’s the use of this power that concerns me. 

And I circled something here: ‘‘The center has long advocated the 

necessity of tying domestic intelligence authorities to law enforcement to ensure that Government surveillance is targeted against 

actual wrongdoers, and not against political or religious minorities.’’ However, if, for example—and I’m on the domestic side—a religious minority had as its philosophy and also its action the bombing of abortion clinics; its faith or its views were that they are absolutely abhorrent—abhor them, but then the next step was that 

they planned bombing—bombings. You don’t include that in protections of civil liberties; is that correct? 

Ms. MARTIN. No. That’s actually an issue that we worked on to 

a great deal before September 11. Because we were concerned 

about two things: that the Government adequately investigate and 

stop abortion clinic violence; but that it not target groups who opposed abortion, or conduct surveillance of groups who opposed abortion, simply on the excuse that it was trying to stop abortion clinic 

violence. 

And that line—between investigating and targeting politically 

motivated violence, while being careful to respect the first amendment rights of those who might share the political views of the violent actors—is an extremely important and difficult problem. 

Ms. JACKSON LEE. Right. Let me take you up on that. Lights go 

out quickly here. Let’s take that on the international basis, or at 

least the basis of groups that have gotten profiled: Muslims who 

gather in a mosque here in the United States; Pakistanis; people 

from Iran who live in the United States. Then how would the center expand on where you’re going with the protection of the civil 

liberties and to avoid this expansive use of this procedure and 

still—where would we begin, or where would we take this hearing 

to really respond to that? 

90

Because that, I think, as much as this is such a wonderful panel 

that talks about the necessity of security, and the U.S. Attorney, 

but we have in here the makings of the broad use of this procedure. 

How would you answer, a good way of providing that protection? 

Mr. CHABOT. And the gentlelady’s time has expired, but you can 

answer the question. 

Ms. JACKSON LEE. You can answer the question, thank you. 

Thank you, Mr Chairman. 

Ms. MARTIN. Well, I think it’s an extremely important and extremely difficult question to answer, that has to be answered in 

many different specifics. But I think that, given where we are, that 

we are going to continue to have the use of what are basically completely secret surveillance authorities; and which we tried to write 

in all of these detailed protections so that people wouldn’t be spied 

on because they were Muslim. But as you can tell from all of the 

lawyers sitting here, it’s a complicated statute. And whether or not 

those details in the statute in the end are going to be sufficient to 

protect people is not—no longer clear to me. 

I think that we have to come up with some new ways to look at 

what the Government is actually doing. And it’s a hard problem because, of course, they have to operate in secret here. But I think 

I’ve made a couple of suggestions. 

I think another suggestion we haven’t talked about is that this 

Committee go look at the actual FISA applications, the warrants, 

and the returns, especially of U.S. persons, and see who’s being 

surveilled and what they found when they’ve done the surveillance, 

and actually look at that. And that’s another way to look at this 

problem. 

Ms. JACKSON LEE. I thank the gentlelady. We’ll take you up on 

that. At least, I will. Thank you. 

Mr. CHABOT. Thank you. The gentlelady’s time has expired. That 

concludes the second round of questioning. 

And at this time, I’d like to ask unanimous consent to include in 

the record the Department of Justice’s response to a letter from 

Senator Feinstein alleging abuses under the PATRIOT Act. And I 

understand that this indicates the absence of those abuses. 

I’d also like to thank the witnesses for their testimony here this 

afternoon, which I really thought was excellent. The Subcommittee 

very much appreciates your contribution to this important effort. 

And in order to ensure a full record and adequate consideration of 

this important issue, the record will remain open for additional 

submissions for 7 days. Also, any written questions that a Member 

wants to submit should be submitted within the same 7-day period. 

That concludes the Oversight Hearing on the ‘‘Implementation of 

the USA PATRIOT Act: Section 218—Foreign Intelligence Information. (‘The Wall’)’’ I want to thank all the Members for their attendance and their participation this afternoon. We want to especially 

thank the witness panel for being here and answering our questions. And if there’s no further business to come before the Subcommittee, we’re adjourned. Thank you. 

[Whereupon, at 4 p.m., the Subcommittee was adjourned.] 

(91)

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 issue that has been 

foreshadowing much of our discussion about the PATRIOT Act—the extent to which 

it dismantled ‘‘the wall.’’ Given that where we have broken down the traditional 

wall between 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 for 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 abuses 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. 

When we operate in the foreign intelligence arena, we have traditionally given 

fairly broad latitude for use of extraordinary investigative tools abroad, particularly 

involving non-U.S. persons. But when we turn those tools inward, we run a greater 

risk of including U.S. persons in some of the investigative sweeps that occur, unless 

we have sufficient barriers to prevent unwarranted extensions. Since much of the 

foreign intelligence side is secretive and ex parte for the government with no public 

oversight and review, we don’t have the traditional notice, challenge and public 

scrutiny on the criminal side. We used to have the ‘‘wall’’ as a protection. With the 

wall gone, I believe w should focus on establishing sufficient notice, challenge and 

public reporting requirements to assure that foreign intelligence operations do not 

unduly creep into domestic activities of U.S. persons. 

Some of our law enforcement officials seem to feel that the mere inclusion of information regarding uninvolved, innocent persons amounts to ‘‘no harm, no foul’’ if 

they are not arrested or subjected to having to challenge the incursion or other process—a sort of ‘‘what they don’t know won’t hurt them’’ philosophy. Yet, if overly 

broad information is collected, it can be spread all over town, greatly increasing the 

likelihood that your law enforcement, military or intelligence agency neighbor will 

know private things about you that you thought were private and known only by 

those to whom you knowingly gave the information. So, the problem with the ‘‘wall’’

being broken down isn’t just improper acquisition and use of private information, 

but one of preventing people from having it the first place, other than those you 

gave it to with an expectation of privacy. 

So Mr, Mr. Chairman, I look forward to the testimony of our witnesses on the 

extent to which our privacies and freedoms are being protected despite the dismantling of the ‘‘wall’’ through USA PATRIOT and other measures, and what safeguards 

are needed to prevent the creep of overly intrusive foreign intelligence operations 

and powers into the privacy of U.S. persons.

92

LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL,

U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE DIANNE FEINSTEIN


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LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL,

U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE ARLEN SPENCER


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THE USE OF SECTION 218 IN TERRORISM INVESTIGATIONS


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SUBMISSION BY PETER SWIRE ENTITLED ‘‘THE SYSTEM OF FOREIGN

INTELLIGENCE SURVEILLANCE LAW’’


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Æ


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