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S. HRG. 107–947

THE USA PATRIOT ACT IN PRACTICE: SHEDDING

LIGHT ON THE FISA PROCESS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

SEPTEMBER 10, 2002

Serial No. J–107–102

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 11

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 14

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 10

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 7

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 24

prepared statement .......................................................................................... 104

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 5

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 129

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 16

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 8

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, 

prepared statement .............................................................................................. 136

WITNESSES 

Banks, William C., Professor of Law, Syracuse University, Syracuse, New 

York ....................................................................................................................... 19

Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein and Fox, 

Washington, D.C. ................................................................................................. 21

Halperin, Morton H., Director, Washington Office, Open Society Institute, 

Washington, D.C. ................................................................................................. 22

Kris, David, Associate Deputy Attorney General, Department of Justice, 

Washington, D.C. ................................................................................................. 17

QUESTIONS AND ANSWERS 

Responses of William C. Banks to questions submitted by Senator Leahy ........ 66

Responses of Kenneth Bass to questions submitted by Senator Leahy .............. 69

Responses of David Kris to questions submitted by Senator Leahy ................... 48

SUBMISSIONS FOR THE RECORD 

Banks, William C., Professor of Law, Syracuse University, Syracuse, New 

York, prepared statement .................................................................................... 72

Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein and Fox, 

Washington, D.C., prepared statement .............................................................. 84

Department of Justice, Daniel J. Bryant, Assistant Attorney General, Washington, D.C., letter ............................................................................................... 99

Halperin, Morton H., Director, Washington Office, Open Society Institute, 

Washington, D.C., prepared statement .............................................................. 112

Hatch, Hon. Orrin G., Hon. Strom Thurmond, Hon. Jon Kyl, Hon. Mike 

DeWine, Hon. Jeff Sessions, Hon. Mitch McConnell, joint statement ............. 116

Kris, David, Associate Deputy Attorney General, U.S. Department of Justice, 

Washington, D.C., prepared statement .............................................................. 120

Specter, Hon. Arlen, letter to Hon. Robert Mueller .............................................. 134

U.S. Foreign Intelligence Surveillance Court, Hon. Colleen Kollar-Kotelly, 

Presiding Judge, letter and attachments ........................................................... 142

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THE USA PATRIOT ACT IN PRACTICE: 

SHEDDING LIGHT ON THE FISA PROCESS 

TUESDAY, SEPTEMBER 10, 2002

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:38 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Feingold, Schumer, Durbin, 

Hatch, Grassley, Specter, and DeWine. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. We will begin. I understand Senator Hatch 

has been delayed in traffic but is coming in, but Senator DeWine, 

Senator Specter, and Senator Feingold are here. 

Before we begin, I want to commend Senator Specter for not only 

this year but for as long as I can remember, he has highlighted this 

whole issue of FISA and the importance of it, as have Senators 

Grassley, DeWine, and Feingold. I appreciate this, and I mention 

this, Mr. Kris, because I know you have worked so very hard on 

this subject. 

Today in Vermont, my own State, and also in Arizona, North 

Carolina, New York, Wisconsin, Maryland, and a number of other 

States, Americans are making our democracy work by casting votes 

in primary ballots. This Committee meets today as part of its role 

in that same democratic process, focusing oversight on one of the 

most important but least understood functions of our government. 

We are examining how the Foreign Intelligence Surveillance Act is 

working, and we are asking how it works not just in theory but in 

practice. 

We had begun our oversight hearings last summer, as soon as 

the Senate majority shifted. After the terrorist attacks on September 11, we focused on expedited consideration of what became 

the USA PATRIOT Act, providing legal tools and resources to better protect our nation’s security. We continue our efforts to ensure 

that the law is being implemented effectively and in ways that are 

consistent with preserving the liberties enshrined in the Constitution. 

Much of our focus today will be on process issues in a secret system. In a nation of equal justice under law, process is important. 

In a nation whose Constitution is the bulwark of our liberty, process is essential. In administering a system that rightfully must opVerDate Mar 21 2002 14:55 Jul 08, 2003 Jkt 087732 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\HEARINGS\87866.TXT SJUD4 PsN: CMORC
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erate under a shroud of secrecy, Congressional oversight of that 

process is crucial. 

The USA PATRIOT Act made important changes to the Foreign 

Intelligence Surveillance Act, which is called ‘‘FISA’’ for short. This 

law set up a secret court to review government applications to conduct secret wiretaps and searches inside the United States for the 

purpose of collecting foreign intelligence information to help protect 

this nation’s national security. FISA was originally enacted in the 

1970s to curb widespread abuses by both Presidents and former 

FBI officials of bugging and wiretapping Americans without any judicial warrant—based on the Executive Branch’s unilateral determination that national security justified that surveillance. 

The targets of those wiretaps included a Member and staff of the 

United States Congress, White House domestic affairs advisors, 

journalists, and many individuals and organizations engaged in no 

criminal activity but, like Dr. Martin Luther King, who expressed 

political views threatening to those in power. 

Indeed, on our panel today is one of the victims of those abuses, 

Dr. Morton Halperin, whose telephone was illegally tapped by highlevel officials in the Nixon Administration. I point this out because 

I don’t want anybody to think all this is ancient history. It has happened more recently than we would like to think. 

In the USA PATRIOT Act, we sought to make FISA a more effective tool to protect our national security, but the abuses of the past 

are far too fresh simply to surrender to the Executive Branch unfettered discretion to determine the scope of those changes. The 

checks and balances of oversight and scrutiny of how these new 

powers are being used are indispensable. Oversight of a secret system is especially difficult, but in a democracy it is especially important. 

Over the last two decades, the FISA process has occurred largely 

in secret. Clearly, specific investigations must be kept secret, but 

even the basic facts about the FISA process have been resistant to 

sunlight. The law interpreting FISA has been developed largely behind closed doors. The Justice Department and FBI personnel who 

prepare the FISA applications work behind closed doors. When the 

FISA process hits snags, such as during the year immediately before the September 11 attacks, and adversely affects the processing 

of FISA surveillance applications and orders, the oversight Committees of the Congress should find out a lot sooner than the summer after the September 11 attacks. Even the most general information on FISA surveillance, including how often FISA surveillance targets American citizens, or how often FISA surveillance is 

used in a criminal case, is unknown to the public. 

In matters of national security, we must give the Executive 

Branch the power it needs to do its job. But we must also have 

public oversight of its performance. When the Founding Fathers 

said ‘‘if men were all angels, we would need no laws,’’ they did not 

mean secret laws. 

Our oversight has already contributed to the public’s understanding of this process. We have brought to light the FISA Court’s 

unanimous opinion rejecting the Justice Department’s interpretation of the USA PATRIOT Act’s amendments. That was because of 

requests from this Committee. If it had not been for the prolonged 

3

efforts of the Committee—and I want to note especially Senator 

Specter and Senator Grassley—one of the most important legal 

opinions in the last 20 years of national security law, even though 

it was unclassified, would have remained totally in secret. This is 

an unclassified government document remaining secret. We 

brought it out into the open. 

As it is, this unclassified opinion was issued in May, but it was 

not released until three months later, on August 20, in response to 

a letter that I sent, along with Senator Specter and Senator Grassley, to the court. The May 17 opinion is the first window opened 

to the public and the Congress about today’s FISA and about how 

the changes authorized by the USA PATRIOT Act are being used. 

Without this pressure to see the opinion, the Senators who wrote 

and voted on the very law in dispute would not have known how 

the Justice Department and the FISA Court were interpreting it. 

The glimpses offered by this unclassified opinion raise policy, process, and constitutional issues about the implementation of the new 

law. 

The first-ever appeal to the FISA Court of Review, which the Solicitor General of the United States argued yesterday, was transcribed and, yesterday, with Senator Specter and Senator Grassley, 

I sent a letter asking the court to provide an unclassified version 

of the oral argument and their decision to this Committee. We need 

to know how the law is being interpreted and applied. 

Many of the FISA provisions are subject to a sunset. Because of 

that, it is particularly important that this Committee monitor how 

the Justice Department is interpreting them, because if we don’t 

know how they are interpreting them, I am one Senator who would 

not agree to continuing the Act once the sunset is there. 

Now, let’s be very clear about that. This Act has to be renewed. 

If we are not going to know how it is being used, I think there are 

going to be an awful lot of Senators, Republican and Democrat 

alike, who will not vote to continue the Act. The Department of 

Justice brief makes a sweeping claim regarding the USA PATRIOT 

Act amendments. The Department asserts that the longstanding 

‘‘purpose’’ analysis adopted by numerous courts for more than 20 

years is simply wrong. Specifically, the Department claims that 

using FISA for the sole and exclusive purpose of pursing a criminal 

prosecution, as opposed to collecting intelligence, is allowed. 

The Department contends that changing the FISA test from requiring ‘‘the purpose’’ of collecting foreign intelligence to a ‘‘significant purpose’’ allows the use of FISA by prosecutors as a tool for 

a case even when they know from the outset that the case will be 

criminally prosecuted. They claim that criminal prosecutors can 

now initiate and direct secret FISA wiretaps, without normal probable cause requirements and discovery protections, as another tool 

in criminal investigations, even though they know that the strictures of Title III of the Fourth Amendment cannot be met. In short, 

the Department is arguing that the normal rules for Title III and 

criminal search warrants no longer apply in terrorism or espionage 

cases, even for U.S. persons. 

I was surprised to learn that, as the ‘‘drafter of the coordination 

amendment’’ in the USA PATRIOT Act, the Department cites my 

statement to support its arguments that there is no longer a disVerDate Mar 21 2002 14:55 Jul 08, 2003 Jkt 087732 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\HEARINGS\87866.TXT SJUD4 PsN: CMORC
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tinction between using FISA for a criminal prosecution and using 

it to collect foreign intelligence. Well, had the Department of Justice taken the time to pick up a phone and call me, I would have 

told them that was not and is not my belief. Let me state that 

again. Even though the Justice Department’s brief cites what is my 

belief, let me tell you right now they are wrong. It is not my belief. 

When they cite me, they ought to talk to me first. 

We sought to amend FISA to make it a better foreign intelligence 

tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal 

law enforcement tool. We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did 

not intend to obliterate the distinction between the two, and we did 

not do so. Indeed, if we wanted to make a sweeping change in 

FISA, it would have required changes in far more parts of the statute than were affected by the USA PATRIOT Act. 

In addition, as Professor Banks points out in his testimony, such 

changes would present serious constitutional concerns. The issues 

relating to FISA implementation are not just legal issues, however. 

Our Committee has also held closed sessions and briefings. We 

have heard from many of the FBI and Justice Department officials 

responsible for processing and approving FISA applications. We 

cannot go over all of this in an unclassified forum, but I can say 

this: before the 9/11 attacks, we discovered the FISA process was 

strapped by unnecessary layers of bureaucracy and riddled with inefficiencies. Some of these inefficiencies had to do with legal issues 

that we addressed in the USA PATRIOT Act, but many did not. 

They related to the same problems that this Committee has seen 

time and time again at the FBI: poor communication, inadequate 

training, a turf mentality, and cumbersome information management and computer systems that date back to the Dark Ages. Even 

a cursory read of the unanimous FISA Court opinion bears that 

out. The FISA Court was not frustrated with the state of the law. 

Instead, all seven Federal judges were concerned about a track 

record marred by a series of inaccurate affidavits that even caused 

them to take the extraordinary step of banning an agent from appearing before the court in the future. I continue to support Director Mueller’s efforts to address these problems, but the going will 

not be easy. 

As we conduct oversight of the FBI and the Justice Department, 

I have become more convinced there is no magic elixir to fix these 

problems. It is tempting to suggest further weakening of the FISA 

statute to respond to specific cases, but the truth is that the more 

difficult systemic problems must be properly addressed in order to 

combat terrorism effectively. Furthermore, given the secrecy of the 

FISA process and the law relating to the FISA, it is impossible to 

intelligently address the problems that do exist without risking 

doing more harm than good. As this week’s mostly secret appeal 

before the FISA review court demonstrates, the consequences of 

amending that statute can be far-reaching and perhaps unintended. FISA was enacted for a reason. It is even more important 

to the nation today than it was a year ago, before September 11th, 

and we need it to work well. It ensures that our domestic surveillance is aimed at true national security targets and does not simply 

5

serve as an excuse to violate the constitutional rights of our own 

citizens. We must first exercise the utmost care and diligence in 

understanding and overseeing its use. 

I believe it was the Los Angeles Times, in an editorial shortly 

after September 11th, that said the buildings may have come down, 

our Constitution did not. And if we want to protect ourselves, we 

should make sure that both the buildings and Constitution have 

not come down. 

Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I want to commend you for holding a hearing on this important issue—the Foreign Intelligence Surveillance Act, or FISA, process. The intelligence community and the law enforcement agencies rely on FISA 

to conduct critical intelligence gathering in order to protect our 

country and prevent further terrorist attacks. And let nobody miss 

the point. We have to be very vigilant and we will have to continue 

to be very vigilant in order to prevent any future terrorist attacks 

in this country. And we are very concerned when people are willing 

to give their own lives in suicide bombings. We know that that is 

a matter of even greater concern to many people. 

Now, I look forward to examining this important issue relating 

to the FISA process today and am hopeful that we can do this in 

a spirit of bipartisanship. These are complex issues, and the Committee’s constructive role is important. 

The timing of this hearing—one day before the first-year anniversary of the attack on our country—could not be more telling. 

Our joint session last Friday in New York City helped to emphasize 

to everyone the horrible tragedy that our country suffered on September 11th. It reminded us of our continuing need to be vigilant 

in protecting our country from further terrorist attacks. 

After last year’s tragic attack on September 11th, the administration and Congress worked together to enact the PATRIOT Act. 

This is a broad package of measures that provided law enforcement 

and the intelligence communities with the necessary tools to fight 

terrorism worldwide and, of course, protect our country. These reforms were critical to enhance our government’s ability to detect 

and prevent terrorist attacks from occurring again. We worked together on these reforms and passed them in the full Senate on a 

vote of 99 to 1. 

One of the most significant issues addressed by the PATRIOT 

Act was the lack of effective coordination between intelligence and 

criminal investigations. This was not a new issue. The Bellows report relating to the Wen Ho Lee investigation, as well as the GAO 

Report on the subject, clearly identified the problem of intelligence 

sharing and the need to address the issue even before the September 11th attack. The issue was also identified by the Hart–Rudman Commission and dated back to the 1990s. 

The PATRIOT Act addressed the issue in two significant ways: 

First, Congress, with Section 218 of the Act, modified the ‘‘primary purpose’’ requirement for FISA surveillance and searches to 

6

allow FISA to be used where a significant, but not necessarily primary, purpose is to gather foreign intelligence information. 

Second, Section 504 of the PATRIOT Act specifically authorized 

intelligence officers who are using FISA to consult with Federal 

law enforcement officers to ‘‘coordinate efforts to investigate or protect against’’ foreign threats to national security including international terrorism. 

Based on these two provisions, it is clear that Congress intended 

to allow greater use of FISA for criminal purposes, and to increase 

the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers. 

At issue now is a very difficult but critical issue, and that is, 

where to draw the line between intelligence gathering and criminal 

investigations to ensure that our intelligence community and law 

enforcement agencies are fully capable of detecting and preventing 

future terrorist attacks while at the same time ensuring that 

Americans’ civil liberties are preserved. 

The Justice Department’s interpretation of the PATRIOT Act 

modifications to the FISA process is currently at issue before the 

FISA Court. And I commend the Justice Department for bringing 

this issue to the FISA Court for its review. In March of this year, 

the Justice Department adopted revised guidelines governing intelligence sharing and criminal prosecutions, and then sought FISA 

Court approval for these revisions. The FISA Court approved most 

of these modifications but rejected a portion dealing with the role 

of criminal prosecutors in providing advice and direction to the intelligence investigations. The matter is now pending on appeal before the Foreign Intelligence Court of Review. 

We all expected the courts to review this matter, but we cannot 

deny that Congress specifically intended such enhanced information sharing to take place. We must not revert back in this process 

and again risk a culture that would fail to pursue aggressively the 

investigation of terrorist threats. 

In reviewing the FISA process, we need to consider the fact that 

there has been a dramatic change in the terrorist landscape since 

1978 when FISA was enacted. There is no question that in response to our country’s efforts to fight terrorism worldwide, terrorists are increasingly operating in a more decentralized manner, far 

different from the terrorist threat that existed in 1978. The threat 

posed by a small group—even a lone terrorist—may be very real 

and may involve devastating consequences, even beyond those suffered by our country on September 11th. Given this increasing 

threat, we have to ensure that intelligence and law enforcement 

agencies have sufficient tools to meet this new—and even more 

dangerous—challenge. 

Being now aware of the evolving terrorist threat, we also may 

need to examine carefully proposals to modify the FISA statute. 

This Committee’s inquiry should be forward-looking and done without exaggeration of past missteps and miscues which have since 

been corrected. The stakes are simply too high for anyone to inject 

politics into an area which requires careful and studied deliberation. 

Today’s witnesses will help us to consider these critical issues, 

and I look forward to hearing each of our witnesses today, and I 

7

welcome you all to the Committee. We appreciate the effort and 

time that you have put in to present your views to us here today. 

Chairman LEAHY. Thank you, Senator Hatch. 

Normally we would go right to the witnesses now, but Senator 

Feinstein has asked to make a brief statement, as have Senators 

Specter, Feingold, and DeWine, each one of whom has had an interest in this subject. And so we will not follow the normal routine, 

but I would ask Senators if they might be brief. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Well, thank you, Mr. Chairman, very much 

for holding the hearing, and I appreciated the opening statements 

of both yourself and the ranking member. 

I was present at the hearing when the Attorney General brought 

forward his concern and took an interest in it, and I think I actually suggested the word ‘‘significant.’’ So I want to make a couple 

of comments. 

I have read the Attorney General’s opinion of March 6, and I 

have read the FISA opinion, I think it is April 17th. And I want 

to go back, to the best of my recollection, to the hearing when we 

made the decision. 

We knew about the problems FBI agents in the Minneapolis field 

office had in getting a FISA order in the Moussaoui case. However, 

I do not believe any of us ever thought that the answer to the problem was to merge Title III and FISA purposes. 

Now, we felt—or I felt that that was what the administration 

originally proposed when they sent legislation to us to change the 

words ‘‘primary purpose’’ in the FISA statute to ‘‘a purpose.’’ And 

many of us believe that such a change would have eliminated the 

distinction between Title III and FISA. Any purpose, if it was done, 

even a stupid or a silly one, would have passed muster and allowed 

a FISA application to proceed. 

When I questioned Attorney General Ashcroft at this Judiciary 

Committee hearing, he agreed that ‘‘significant purpose’’ would represent a compromise. 

Now, Webster’s defines the word ‘‘significant’’ as ‘‘having or likely 

to have influence or effect: important; a significant piece of legislation’’; also, ‘‘of a noticeably or measurably large amount; a significant number of layoffs, for example, producing significant profits.’’

So that was the definition that we then selected, to lower the bar 

slightly but not entirely, and to provide that when one went for a 

FISA warrant, there had to be a significant relationship to foreign 

intelligence. And the bill that ultimately passed both House and 

Senate and became law included this compromise ‘‘significant purpose’’ standard. 

Now, in the Attorney General’s brief in the FISA Appellate 

Court, this brief argues against the balancing compromise language 

that Attorney General Ashcroft accepted, I thought, at the hearing. 

Under the administration’s primary argument in its brief, the administration need not show any purpose of gathering foreign intelligence in any investigation involving national security. The administration seems to contend that a Federal prosecutor can direct the 

8

FISA process in a case that is 100 percent law enforcement. I don’t 

agree with that. 

As a backup alternative argument, the administration seems to 

contend that any foreign intelligence purpose need not only be insignificant and, in any event, can still be fully directed by law enforcement. I disagree on that. Apparently, they believe they can get 

a FISA order even if a case is 80 or 90 percent law enforcement. 

I disagree with that. 

In my view, there has been a skewing, Mr. Chairman, of what 

we set up in utilizing a ‘‘significant purpose’’ must be foreign intelligence——

Chairman LEAHY. I tend to agree, and that is why I got very concerned when I saw them quote me and what my position was on 

that, which is totally different than what my position is. 

Senator FEINSTEIN. So that is my recollection of the matter and 

the discussion that took place, because I think in my Q and A with 

the Attorney General, we talked about various words, and I 

thought it was the intend of the Committee that we wanted to 

maintain the primary purpose being the gathering of foreign intelligence, not Title III, but we wanted to slightly lower the bar because of the particular nature of the circumstances we were in and, 

therefore, came up with the words ‘‘significant purpose,’’ meaning 

important, significant, noticeably, measurably large amount. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Feinstein. 

Senator Specter? 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. The application of the Foreign Intelligence 

Surveillance Act, the proper application, is of enormous importance 

as we are trying to deal with homeland security and at the same 

time there are major challenges to what the Department of Justice 

is doing with civil rights. And the Department’s actions leave a lot 

to be desired on both scores. 

It would have seemed logical that, after the extensive examination of the Foreign Intelligence Surveillance Act in the Wen Ho Lee 

case, there would have been an understanding of its application. 

And there was a miscommunication at the highest levels between 

the Director of the FBI and the Attorney General, which we corrected by statute, and without going into the many ramifications 

of Wen Ho Lee, suffice it to say that the Department of Justice was 

on notice as to what FISA required. 

The failure to obtain a warrant under the Foreign Intelligence 

Surveillance Act for Zacarias Moussaoui was a matter of enormous 

importance, and it is my view that if we had gotten into Zacarias 

Moussaoui’s computer, a treasure trove of connections to Al–Qaeda, 

in combination with the FBI report from Phoenix where the young 

man with Osama bin Laden’s picture seeking flight training, added 

to that Kuala Lumpur where the CIA knew about two men who 

turned out to be terrorist pilots on 9/11, plus the NSA advisory a 

day before 9/11, which wasn’t interpreted until September 12th, 

that there was a veritable blueprint and 9/11 might well have been 

prevented. 

9

And as we are working now to prevent another 9/11, there is a 

continuing question as to whether the FBI is properly applying a 

probable cause standard in seeking a FISA warrant. 

We had a very important hearing where Special Agent Coleen 

Rowley from the Minneapolis field office came in on June the 6th, 

and it was revealing because Agent Rowley pointed out that the 

U.S. Attorney in Minneapolis looked for a 75- to 80-percent probability before getting a FISA warrant. And Agent Rowley herself 

thought that the standard was more probable than not. 

And at that hearing on June 6th, there was considerable conversation about the standard for probable cause set forth by then–

Associate Justice Rehnquist in the Gates case, which said, in critical part, as early as Locke, which is an 1813 decision, Chief Justice 

Marshall observed in a closely related context the ‘‘probable cause,’’ 

according to its usual accepted definition means ‘‘less than evidence 

which would justify condemnation...it imports a seizure made 

under circumstances which warrant suspicion.’’ And then the opinion goes on to say that ‘‘more probable than not’’ has no application. 

We had a closed session with FBI agents on July 9th, and it 

would have been thought that when the public hearing occurred on 

June 6th, with a lot of publicity, the FBI agents would have picked 

up the Gates standard or that the Director of the FBI at the hearing would have told the FBI agents the Gates standard. But in a 

way which was really incredulous, the FBI agents didn’t know the 

standard. They didn’t know it when they were dealing with the 

Moussaoui case, and they didn’t know it almost a year later when 

we had the closed-door hearing. 

And I wrote to Director Mueller the very next day—and I ask, 

Mr. Chairman, that this letter be made a part of the record—setting forth the Gates standard again and asked him to implement 

it. 

Again, in an incredulous way, 2 months have passed and no response. So as of this moment, without oversight function, we do not 

know whether, notwithstanding all of our pressure, they are using 

a proper standard for probable cause. 

Now, there have been other matters which have been of enormous importance, such as the FISA Court disqualifying an FBI 

agent. And on this state of the record, I am not sure why. And we 

are trying to find out. But I believe that there has been an inevitable effect that the FBI is gun-shy. The testimony that we had on 

Moussaoui suggested that the agents felt their best course was to 

do nothing because they would get into no trouble if they did nothing. But if they did something, they might turn up like the FBI 

agent who was disqualified. 

And then in our closed hearings, Senator Leahy, Senator Grassley, and I tried to find out what was going on, and we found out 

that there was an opinion of the FISA Court. But, inexplicably, the 

Department of Justice wouldn’t give it to us, something that just 

can’t be understood. 

So we went to the FISA Court, and at first the FISA Court entered a plea of separation of powers. And we said that won’t wash 

here, Judges. We are the Judiciary Committee. We have a right to 

oversight to see what is going on. And, finally, we got the opinion, 

10

and then we understood why the Department of Justice wouldn’t 

give it to us: because it was highly critical of the Department of 

Justice. 

And then in that opinion, the court goes into some detail about 

rejecting the Attorney General’s request for a regulation which 

would take the PATRIOT Act and turn the Foreign Intelligence 

Surveillance Act on its head. It has already been discussed, and I 

think very well, this morning. But just one brief comment. 

When the purpose of the FISA Act was foreign intelligence and 

the court interpreted ‘‘purpose’’ as ‘‘primary purpose,’’ the change 

was made to ‘‘significant purpose.’’ But then the Department of 

Justice came in with its regulation and said that since the PATRIOT Act said a significant purpose was foreign intelligence, then 

the primary purpose must be law enforcement—which is just, simply stated, ridiculous. 

The word ‘‘significant’’ was added to make it a little easier for 

law enforcement to have access to FISA material, but not to make 

law enforcement the primary purpose. 

So here, Mr. Chairman, we are dealing with a situation where, 

by all indications, the FBI and the Department of Justice are not 

being as aggressive as they should be and can be with an appropriate standard for probable cause, and at the same time they are 

subverting the purpose of the Foreign Intelligence Act by trying to 

make it much, much broader than it was originally intended or 

that we made the modification under the PATRIOT Act. 

And I think it is appropriate to put DOJ and FBI on notice that 

we are not going to let this matter drop. We are going to pursue 

it. And we are going to find out why the agent was disqualified, 

and we are going to find out what the FBI is doing on these matters, because this is a matter of enormous importance. Nothing is 

going on in Washington today, Mr. Chairman, and I thank you for 

convening this hearing and getting a proper application of the Foreign Intelligence Surveillance Act. 

Thank you. 

Chairman LEAHY. I appreciate it. As I said earlier, I also appreciate the fact that you have for years been pushing this issue in 

both Democratic and Republican Administrations. You have been 

very consistent in that. 

I do want more answers. I do feel that we have asked legitimate 

questions and not gotten the answers. Again, I am urging the Department of Justice to come back with those answers. Otherwise, 

we are going to have to consider subpoenaing answers to our questions, and I know that the Republican chairman of the House Judiciary Committee has expressed similar concerns at the failure to 

get answers, I do not want to see a case where the House and Senate Judiciary Committees have to issue subpoenas to get answers 

to legitimate questions. And I would hope that it would not come 

to that, but if it does, it does. 

Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman LEAHY. And be sure and turn your microphone on. 

11

Senator FEINGOLD. It is on. 

Thank you, Mr. Chairman, for holding this extremely important 

hearing on the implementation of the PATRIOT Act and FISA. I 

want to especially compliment Senator Feinstein and Senator Specter for their very well-informed and precise analysis of the question 

that is before us today. 

Frankly, this abuse, in my view, by the Department of Justice of 

the language of the bill and unreasonable interpretation of the language of the bill is just the reason why I could not in the end vote 

for the USA PATRIOT Act as I feared that this kind of attempt 

would be made, and this is one of several examples where I think 

the language, as troubling as the language was to me in many 

cases, is strained even beyond a reasonable interpretation in a way 

that does not comport with the intent of even those who supported 

the legislation. 

One year ago today, none of us anticipated, obviously, the terrible events of September 11th. And since then I have watched 

America come together in many wonderful ways, communities uniting, people taking the time to help others, and a Congress that is 

committed to protecting our country. But I believe that in our haste 

to develop legislation to help America, we went too far in some 

areas. 

Now, the courts have played a significant role in exercising their 

role of oversight. There have been important recent court decisions 

prohibiting holding immigration proceedings in secret, requiring 

the disclosure of the identities of the hundreds of individuals 

rounded up since 9/11, and questioning the designation and indefinite detention of U.S. citizens as enemy combatants. 

Even the most recent FISA decision we have been discussing 

today, it is the court and not the Department of Justice that has 

called out for appropriate restraint in our anti-terrorism efforts. 

Last fall, as the Senate debated the PATRIOT Act, there were 

very few voices advocating a slower gait as we raced towards passing some of the most radical changes to law enforcement in a generation. And so I think that makes this hearing even more important. 

Chairman Leahy did the right thing in holding this hearing. Congress has an important oversight responsibility and it has to exercise that responsibility. We must carefully examine what we have 

done in the battle against terrorism and also what this Department 

of Justice will ask us to do in the future. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator DeWine? 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Thank you, Mr. Chairman. I want to thank 

you, Mr. Chairman, for holding this hearing today to discuss the 

Foreign Intelligence Surveillance Act. As my colleagues have pointed out, FISA is one of the most important investigative tools available to us in our fight against terrorism. Bluntly, unless we effectively use the powers of FISA, we will not be safe from terrorism. 

It is just that simple. 

12

Now, today the congressional spotlight is on homeland security 

and defense, and that is a very good thing. That is all well and 

good. And when I go home to Ohio, Mr. Chairman, people ask me 

about the homeland security bill. 

But I must say that at the end of the day, we can make all sorts 

of improvements in our homeland defense reorganization. We can 

move agencies around, departments around, box to box. We can improve our security at airports. And we can work to tighten our borders. But I truly believe that our success in defeating terrorism begins and ends with effective intelligence. And FISA is an absolutely 

critical part of this intelligence-gathering operation. 

So I am hopeful that today’s hearing will be the beginning—the 

beginning of a period of increased emphasis and focus on the FISA 

process as a whole. It deserves and I believe requires a great deal 

of attention from this Committee, and I congratulate you for this 

hearing. It requires attention from the Intelligence Committee and 

from the entire Congress. 

Mr. Chairman, we simply cannot overstate the importance of 

FISA warrants and the contribution that FISA surveillance makes 

to the preservation of our national security. After the attacks a 

year ago tomorrow, it became clear to all of us that now, more than 

ever before, our intelligence-gathering agencies and law enforcement personnel must be able to communicate and share critical information about their investigations. We all know that. We know 

that our ability to protect the Nation from future terrorist attacks 

will be compromised unless we are able to fully and effectively combine the resources of our intelligence and law enforcement efforts. 

And the push, candidly, for the PATRIOT Act was based on that 

understanding. 

FISA, of course, does pose some challenges, and it does create 

some risks, and we should not underestimate those. The FISA statute as amended by the PATRIOT Act creates a system of surveillance that is very powerful and, for the most part, completely secret. Accordingly, it is vital that we effectively balance the power 

of this statute and the need for intelligence information with clear, 

rational, and coherent boundaries around the government’s ability 

to conduct these secret surveillances. 

My belief is that the PATRIOT Act brings us closer to the proper 

balance. I am not as convinced as some of my colleagues that the 

government’s position is wrong in regard to this. 

What I do think is important, though, is that this matter be resolved so that this Congress can find out and so that everyone who 

is charged with the safety and security of this country can understand what guidelines they are operating under. 

Mr. Chairman, I do believe that we need to consider whether current law provides for sufficient congressional oversight, and we 

need to consider how we on this Committee and the Intelligence 

Committee can conduct this oversight. Because unless we fully understand how the FISA law is being interpreted by the court, this 

Congress cannot fulfill its constitutional duty—its constitutional 

duty of oversight and its constitutional duty after we pass a law 

to see how it is working, to see how the courts are interpreting it, 

and then to make a rational public policy decision as to whether 

or not that law should be changed. 

13

With only two written FISA decisions—that I am aware of, at 

least—in 24 years, that is impossible to know. It is impossible for 

this Congress to know how the law is being interpreted, and that 

has been true for previous Congresses. 

Now, some of us believe, although we certainly cannot prove it 

because of the fact of the secrecy involved, that the interpretation 

of the original FISA law has become tighter and tighter and more 

burdensome and more burdensome over the years and that the relationship between the Justice Department and the courts, meaning that relationship whereby the Justice Department by definition 

has to, of course, follow what the court says, has resulted in an interpretation of a law that has been very strict. I believe that this 

interpretation may have been stricter than Congress may have intended it or that maybe Congress would have allowed to continue. 

The fact is Congress did not know that. Congress did not know. We 

will never know, frankly. I believe that that interpretation very 

well could have threatened our security. 

This country, candidly, no matter what your belief about that 

issue, was not well served by the lack of effective oversight for the 

past 24 years. I happen to believe it has helped to create a riskaverse culture at the FBI. But, again, that is something because of 

lack of information that no one will ever know for sure. 

So, Mr. Chairman, I thank you for holding this hearing. The 

legal issues that have been raised and that we will discuss are important. I am anxious to hear from our panel of experts, including 

what the Justice Department believes. But I believe, frankly, that 

our look at FISA must go beyond this. And what really is important is Congress’ ability to, over time, monitor what is, in fact, happening with FISA because our national security and liberties are 

at stake. 

We have to devise a method to do this while at the same time 

protecting the secrecy that we know is so very, very important in 

regard to the FISA Court. No one should misinterpret my comments in regard to FISA. I think FISA is and can be a very, very 

effective tool, and what is going on in FISA today is being very, 

very helpful in our war against terrorism. 

I just believe that we can do a better job, and the only way that 

we can fulfill our obligation here in Congress to make sure that the 

FISA law is finely tuned and is, in fact, serving the needs of this 

country in the year 2002 and beyond is for us to somehow develop 

the ability to get more information about what is going on. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. As the Senator perhaps knows, we 

have some draft legislation circulating on changes, and I would encourage him to take a look at it. 

Senator Durbin will be the last person to speak—Senator Durbin 

will be the penultimate Senator to speak. 

[Laughter.] 

Chairman LEAHY. We will then go to Senator Schumer. There 

will be no other Senators who will speak. This is such an extremely 

important issue, and every member here has worked very closely 

on the whole issue of the USA PATRIOT Act. 

Senator Durbin? 

14

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLNOIS 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Chairman, let me thank you and Senator Specter, Senator 

Grassley, Senator Feinstein, and others for your leadership on this 

issue and for calling this hearing today. 

I think this hearing is of historic importance. Behind closed 

doors, with the highest level of secrecy, there is a battle that is 

being waged in our country. It is a battle over an issue as basic 

as the origin of our Nation: the power of a government, the rights 

of an individual. 

The release of the May 17th opinion by the court that oversees 

the Foreign Intelligence Surveillance Act was sobering. It was our 

first insight into that battle. It was our first view behind those 

closed doors. And what we found as a result of that May 17th opinion troubles me, because what we found is that the court said that 

the Government has misused the FISA law. The Government has 

misled the court dozens of times. The FBI had supplied erroneous 

information in more than 75 applications of the FISA law. The FBI 

had improperly shared intelligence information with Government 

prosecutors handling criminal cases. The FBI Director himself had 

submitted a false statement to the court. And one FBI agent 

proved so unreliable that the court barred him from ever submitting affidavits again. 

What is particularly troubling about this May 17th opinion is 

that a reflection on a decision, another historic decision made by 

this Congress, after last September 11th. We were told by our Government that the FISA law as written was inadequate to protect 

America. We were asked to show faith in this Government and to 

invest it with new authority to protect America from its enemies. 

And so many of us decided to make that leap of faith. 

But, as we reflect now, we know that it was a faith born of fear—

fear for the security of our Nation, a legitimate fear after September 11th. 

It was also an expression of faith that our Government would not 

abuse its new authority under the changes in the FISA law. We 

felt confident that, given these new tools and these new resources, 

our Government would defend America but not at the cost of our 

basic liberties. Sadly, this May 17th opinion from the court has told 

us that this administration, this Department of Justice has abused 

the faith entrusted them with this change in the FISA law. 

In light of these disclosures, I am troubled by those who would 

use the intelligence failures of September 11th as a justification for 

even expanding the powers that Government has to monitor individuals within the United States, but not expand meaningful oversight of those powers. What have we learned? We need many more 

opinions from this court. This Congress and the American people 

need to review the progress that is being made to make certain 

that the rights of individuals and the liberties that are so central 

to America are not abused in the name of national security. 

We have known for some time that FBI officials were reluctant 

to seek a FISA search warrant for Zacarias Moussaoui, the socalled 20th hijacker, who was detained a month before the terrorist 

attack. That fact has prompted calls from the Justice Department 

15

and from Members of Congress for additional government authority 

to obtain warrants beyond the significant expansion of authority already granted by Congress in the USA PATRIOT Act, which I 

voted for. 

We now know why the FBI had its doubts about the FISA process. Its credibility and the credibility of the attorneys at the Department of Justice who appear before the FISA Court have been 

repeatedly called into question, as the May 17th opinion tells us so 

graphically. 

Before we make additional changes to the law, before we give additional authority to the Government over the rights and liberties 

of individuals, before we vastly expand the power of investigations 

further, we should require a full and complete accounting of these 

past mistakes. 

Mr. Chairman, thanks for your leadership on this issue. 

Chairman LEAHY. I do appreciate the fact that some of the inadequacies were brought to the attention of the court by some within 

the Department of Justice. I agree so much with the Senator from 

Illinois, the problems that have come to light are problems that can 

only be affected if we do have adequate oversight. 

I remember the great flap over Wen Ho Lee and whether there 

was adequate probable cause to get a computer search just went 

on and on until after he had downloaded everything from the computer and left. Somebody forgot the obvious thing they should have 

done, and that was simply have gone to the administrator of computers at the Lab and said, Did he sign a waiver, a blanket waiver 

to go into his computer? Of course, he had. They didn’t need the 

search warrant in the first place. If somebody had just done what 

any 15-year-old would have known who was computer savvy to do, 

what any one of our systems administrators here in the Congress 

would have known to do, they would have just gone and said, By 

the way, is there a blanket release to go into computers that are 

used for company business? And it was there, and they could have 

gotten it all. 

Senator Schumer, you get the very last——

Senator HATCH. If I could just make a little short statement? 

Chairman LEAHY. Well, except, of course, for Senator Hatch. 

Senator HATCH. Sorry to interrupt you, Senator Schumer. 

Senator SCHUMER. That is okay. Any time. 

Senator HATCH. I look forward to your remarks. But I think that 

these points have been well raised by my colleagues, but errors in 

FISA applications occurred in 2000. That was under the Clinton 

administration—that was one of them—and then in 2001 under 

this administration. Both occurred before Director Mueller assumed his position. And the FBI has since adopted new procedures 

for processing, and I think the record just needs to show that in 

April 2002, Judge Royce Lamberth, who was then the presiding 

judge of the FISA Court, publicly stated, ‘‘We consistently find the 

FISA applications well scrubbed by the Attorney General and his 

staff before they are presented to us.’’

He also stated that the process is working. It is working in part 

because the Attorney General was conscientiously doing his job, as 

is his staff. 

So I just wanted to make sure that record is clarified. 

16

Chairman LEAHY. Senator Schumer? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I, too, join the rest 

of the Committee in thanking you for this much needed hearing. 

Now, we all know that in times of war and certainly in this post–

9/11 world, one of the most difficult questions we face is how to balance security and liberty. It is an age-old struggle. It is one that 

goes back to the Founding Fathers in their debates about freedom 

and democracy. And traditionally, when we face threats such as 

those we face today, security waxes and liberty wanes. 

Now, I believe there has to be some give and take to deal with 

the particular threats of the times. The key word is ‘‘balance.’’ It 

is easy to say we face security needs and let’s get rid of the Constitution. It is also easy to say we shouldn’t change a thing. You 

know, the Constitution is being thrown away. Those on the hard 

left and hard right are good at doing each of those, and those are 

clear and simple, easy ways to go. But the real trick is the balance, 

and that is what is so difficult to find. It has never been more difficult than today. 

Now, it is made difficult, more difficult by another phenomenon. 

We are on all the front lines. We don’t know where or when a terrorist is going to strike. We know that some could be American citizens who are here or non-citizens who are here, legally or illegally, 

but we know that American soil is a new battleground. And that 

certainly invokes, should invoke new discussion and probably some 

kinds of changes. 

So when it comes to FISA, we need to give the Government, I 

believe, some expanded powers to strike the right balance. For example, it doesn’t make sense to handcuff ourselves by requiring 

that DOJ show that a suspected terrorist is a member of a terrorist 

group. There may be lone wolves out there. There may be groups 

that we don’t know, and if this person or group of people is acting 

to promote terrorism, linking them to a known group is not necessary. 

There may be non–U.S. citizens who we can’t prove are part of 

a known terrorist group, and that shouldn’t stop us from getting 

a warrant. Senator Kyl and I have a bill that would fix that problem. 

But at the same time, of course, DOJ’s powers shouldn’t be unfettered. If we blur the line too much between criminal investigations 

and foreign intelligence gathering, the Fourth Amendment may get 

tossed out with the bath water. It is about finding the right balance. And one of the reasons that we struggle here particularly to 

find middle ground is we know so little about the FISA Court. 

I am a big believer in the Brandeisian admonition that sunlight 

is the best disinfectant. There is less sunlight on the FISA Court 

than you would find in most photographers’ darkrooms, and that 

is why this hearing is so critical. We are not going to come to balance until we actually know what is going on. 

In conclusion, Mr. Chairman, I have been struggling to come up 

with some way to make the FISA process more open without endangering security. I have spoken with a lot of people about the 

17

problem and, frankly, no one yet I have spoken to has any really 

good ideas. That is why I eagerly await the panel’s testimony. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

And we will begin with that. Mr. Kris, you have been very patient. You are the Associate Deputy Attorney General. This Committee appreciates both your professionalism and your help in the 

past, and please feel free to go ahead. 

STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. KRIS. Thank you. Mr. Chairman, Senator Hatch, and members of the Committee, thank you for the opportunity to testify this 

morning about the Government’s first appeal to the Foreign Intelligence Surveillance Court of Review. 

At the request of your staff, I have focused my preparation on 

three main issues that relate to the appeal: first, and most importantly, a description concretely of exactly what is at stake in the 

appeal; second, a description of the legal issues that are raised in 

the appeal; and, third, and finally, a discussion of some of the accuracy concerns that are raised in the opinion of the Foreign Intelligence Surveillance Court, the FISC, from May 17th that have already been adverted to. 

I know that there are many, many other FISA-related issues in 

the air today, but I must say that I have not specially prepared to 

address those issues this morning. At least from where I am sitting, the appeal seems like more than enough to tackle in one hearing. 

My written statement lays out in more detail——

Chairman LEAHY. A lot of the other questions have been sent to 

the Attorney General. He just has been otherwise preoccupied in 

being able to answer them, either to me or to the chairman in the 

House. Let’s hope. But we will let you keep within your area of expertise. 

Mr. KRIS. Well, my statement, my written statement which has 

been submitted, sort of lays out in more detail the points that I 

would hope to make. Let me try to give a more sort of user-friendly 

summary here. 

In fact, before I turn to a discussion of what the PATRIOT Act 

did change in FISA, because I think there were very important 

changes, let me start just by quickly reviewing three areas of FISA 

that were not changed by the USA PATRIOT Act. 

First, as always, FISA requires advanced judicial approval for almost all electronic surveillances and physical searches. That was 

not changed by the USA PATRIOT Act. 

Second, every FISA application must be certified in writing by a 

high-ranking and politically accountable Executive Branch official, 

such as the Director of the FBI or the Director of Central Intelligence, and every FISA application must be personally approved in 

writing either by the Attorney General or the Deputy Attorney 

General. Again, the USA PATRIOT Act did not change that. 

And, third, the USA PATRIOT Act did not change the kinds of 

persons whom we are permitted under FISA to search or surveil. 

Today, as always, a FISA target must be an agent of a foreign 

18

power, as defined by FISA, a term that, when it comes to United 

States persons—that is, U.S. citizens or permanent resident 

aliens—requires not only a connection to a foreign government or 

a foreign terrorist group or other foreign power, but also probable 

cause that the target is engaged in espionage, terrorism, sabotage, 

or related activities. 

Now, to be sure, the USA PATRIOT Act did change the allowable 

purpose of a FISA search or surveillance, the sort of reasons why 

FISA may be used. But while the USA PATRIOT Act changed the 

‘‘why’’ of FISA, I think it is also accurate to say, although perhaps 

in need of some elaboration, that it did not change the who, what, 

where, when, or how of FISA. 

Now, let me turn to the three specific issues that you identified 

for me, beginning with what is at stake in the appeal. 

What is at stake here really is the Government’s ability effectively to protect this Nation against foreign terrorists and espionage threats. And I don’t sort of mean to be melodramatic about 

it, but the truth is that when we confront one of these threats, 

whether it be a terrorist or an espionage threat, we have to pursue 

an integrated, coherent, cohesive response to the threat. We need 

all of our best people, whether they be law enforcement personnel 

or intelligence personnel, sitting down together in the same room 

and discussing, well, what is the best way to neutralize this threat? 

In some cases, the best way to neutralize or deal with a threat 

is a criminal prosecution or some other law enforcement approach, 

and the recent prosecution of Robert Hanssen for espionage is a 

good example of that. 

In other cases—and I think even probably in most cases—law enforcement is not the best way to deal with the threat, and some 

other approach, such as recruitment as a double agent or something like that, is called for. And, of course, in some cases, you are 

going to need use both law enforcement and non-law enforcement 

techniques. 

What is important, what is critical to us, and what is at stake 

in this appeal is our ability to sit down and have a rational discussion in any given case about what the best way to deal with the 

problem is. And let me sort of offer quickly a medical analogy, because I think this is pretty technical stuff not only just legally but 

operationally. 

Imagine that a patient walks into a hospital somewhere in the 

United States—let’s just say California—and he is discovered to 

have cancer, and that cancer represents a threat to his survival. In 

some cases, the best solution to curing the cancer and saving the 

patient is surgery to cut the tumor out. And in other cases, it will 

be some other technique like chemotherapy. And in some cases, it 

is going to be both surgery and chemotherapy together. 

But who would go to a hospital in which the surgeons are not 

permitted to sit down and coordinate and talk to the oncologists 

and figure out in this case, for this patient, what rationally is the 

best way to stop the cancer, to cure the cancer and keep him alive? 

That would be bad medicine, and that, in effect, is exactly what we 

are litigating against in the context of this appeal. 

19

Now, I guess I see that the red light is on, and so I think I may 

have breached protocol by going over my time. I can continue or I 

can stop, at your preference. 

Chairman LEAHY. Do you want to get back to the very specific 

cause? I appreciate your medical analogy, but this is a different 

case. 

Mr. KRIS. Well, I can talk about the legal issues, which is a little 

bit more technical, if you would like. 

Chairman LEAHY. Well, we do have your statement. We have it 

in the record. I think it might be easier if we go to questions with 

you, but I want to let Professor Banks get a chance to testify first. 

But let’s go with Professor Banks, and then I do have a number 

of questions. I do want to come back to you, Mr. Kris. 

[The prepared statement of Mr. Kris appears as a submission for 

the record.] 

Chairman LEAHY. Professor Banks? 

STATEMENT OF WILLIAM C. BANKS, PROFESSOR OF LAW, 

SYRACUSE UNIVERSITY, SYRACUSE, NEW YORK 

Mr. BANKS. Thank you. Good morning, Senator Leahy, Senator 

Hatch, members of the Judiciary Committee. Thanks very much for 

inviting me to participate in this morning’s hearing. 

In 1978, the drafters of FISA understood that intelligence gathering and law enforcement would overlap in practice. In the years 

since 1978, the reality of terrorism and the resulting confluence of 

intelligence gathering and law enforcement as elements of 

counterterrorism strategy has strained the FISA-inspired wall between intelligence and law enforcement. 

In addition, the enactment of dozens of criminal prohibitions on 

terrorist activities and espionage has added to the context in which 

surveillance may be simultaneously contemplated for intelligencegathering and law enforcement purposes. 

In the weeks after September 11th, the Justice Department 

pressed for greater authorities to conduct surveillance of would-be 

terrorists. Officials reasonably maintained that counterterrorism 

investigations are now expected to be simultaneously concerned 

with the prevention of terrorist activities and the apprehension of 

criminal terrorists. Surveillance of such targets for overlapping 

purposes is of critical national security importance. 

In the USA PATRIOT Act, Congress agreed to lower the barrier 

between law enforcement and intelligence gathering in seeking 

FISA surveillance. Instead of intelligence collection being the primary purpose of surveillance, it must now be a significant purpose 

of the search or wiretap. 

The statutory change may not have been necessary. Whatever its 

wisdom, however, this language does not mean that prosecutors 

can now run the FISA show. The essential fabric of FISA was left 

untouched by the USA PATRIOT Act. Its essence remains foreign 

intelligence collection. Greater information sharing and consultation was permitted between intelligence and law enforcement officials, but law enforcement officials are not permitted under ‘‘significant purpose’’ or any other part of FISA to direct or manage intelligence gathering for law enforcement purposes. 

20

The concern expressed in the May 17 opinion by the FISC is easy 

to envision stripping away the technical questions of statutory interpretation. Prosecutors may seek to use FISA to end-run the traditional law enforcement warrant procedures. They gain flexibility 

that way, but they also become less accountable. 

The May 17 opinion, signed by all seven judges, is nuanced but 

firm in its partial repudiation of the proposed 2002 minimization 

procedures. The Department would effectively permit placement of 

supervision and control over FISA surveillance in the hands of law 

enforcement teams. The Department based its proposed revision on 

the USA PATRIOT Act amendments to FISA, which they say 

would permit FISA to be used primarily for a law enforcement purpose. 

As the court noted, portions of the Department’s procedures 

would permit the coordination among intelligence and law enforcement agencies to become subordinated, the former to the latter officials. 

It is impossible for any academic or, indeed, any outsider to 

opine intelligently about what goes on in working with FISA. Its 

proceedings are secret, little reporting is done, and only rarely does 

any FISA surveillance reach the public eye. We outsiders simply 

don’t know enough to offer a detailed critique of the procedures for 

implementing FISA pre- or post–USA PATRIOT Act. 

Our ignorance can be remedied in part by providing more information about the implementation of FISA. Now that some of the 

guidelines have been disclosed during this dispute, why not assure 

that all such guidelines are publicly reported, redacted as necessary to protect classified information or sources and methods. 

The reporting that now occurs is bare bones, limited to simple 

aggregate numbers of applications each year, with no further detail. Why not report with appropriate breakdowns for electronic 

surveillance and searches, numbers of targets, numbers of roving 

wiretaps, how many targets of FISA were prosecuted, how many 

were U.S. persons? The report should also be available to all of us 

more often than annually. 

In addition, among the reforms that the Committee could consider would be a formal role for the FISC in reviewing and approving FISA guidelines. FISC is, of course, an Article III court. The 

Judiciary Committee is, thus, centrally responsible for its oversight, even if its work concerns intelligence. 

I will close now and await your questions. Thank you. 

[The prepared statement of Mr. Banks appears as a submission 

for the record.] 

Chairman LEAHY. I appreciate that, and obviously, from my earlier comments, there are a number of things I find myself in total 

agreement with. 

We have begun the roll call vote. If any Senators wish to go and 

vote, feel free. But we will hear Mr. Bass and Dr. Halperin, and 

then I will leave for the vote and come right back and begin the 

questions. 

Go ahead, Mr. Bass. 

21

STATEMENT OF KENNETH C. BASS, III, SENIOR COUNSEL, 

STERNE, KESSLER, GOLDSTEIN AND FOX, WASHINGTON, D.C. 

Mr. BASS. Thank you. Mr. Chairman, members of the Committee, 

I appreciate the opportunity to testify before you today. I have submitted a lengthy written statement, but I want to address some 

comments to remarks that the various Senators have made that 

are not fully addressed in the written testimony. 

I have the perspective of having been there with Senator Leahy, 

Senator Hatch, and Senator Specter at the foundation of FISA. I 

was in the Department of Justice when the legislation was moved 

through Congress and worked also with Mr. Halperin, of course, in 

that process. 

What I want to share with the Committee today is the perspective of the views of someone who was at one time within the tent, 

was responsible for implementing FISA in the 1978 to 1981 period. 

And I have tried to stay in touch with the process since returning 

to private practice as much as possible. As we all know, despite security classifications, there are some leakages around the edge of 

the tent, and I have been the beneficiary of some of those leakages 

over the years, so I think I have a relatively informed perspective 

on what has happened. 

On the critical issue of the role of FISA with respect to intelligence versus law enforcement, let me confess in the beginning 

that I am a moderate. I firmly believe that the ‘‘primary purpose’’ 

test, as it developed and evolved in the 1995 procedures and in the 

wall, was absolutely wrong, fundamentally inconsistent with the 

basic purpose of FISA, and reflects a careless misreading of cases 

that had tangentially commented in dicta about the so-called ‘‘primary purpose’’ test. My testimony examines that thesis at some 

length. I won’t repeat it here. 

But the second proposition I think is equally true. The chairman 

stated that the department’s view of FISA post–PATRIOT is that 

FISA can be used for a surveillance if the ‘‘sole and exclusive purpose is a criminal investigation.’’ If that is indeed the Department’s 

position—I am not sure it is, but if that is the Department’s position—they are in my view flatly wrong. But they are wrong not because of anything in FISA that deals with purpose. They are wrong 

because of a misunderstanding of the penumbra of FISA, the context in which it was developed, the Keith decision that laid the constitutional groundwork before FISA was enacted, and, most specifically, the little noticed provision in Section 1823(a)(7). 

Why do I focus on that? Very simply, because Section 1823(a)(7) 

requires that the certification which lies at the heart of every FISA 

application must be made by an Executive Branch official with responsibilities in the area of national security. No one except national security officials can certify FISA applications. To me, intentionally or not, that provision reflects Congress’ plain and 

unambivalent intention that FISA was never to be used for a purely criminal investigation. It was only to be used where there was 

a national security/foreign affairs aspect to the investigation. 

At the same time I am equally clear that the balance of criminal 

versus traditional counterintelligence and intelligence aspects was 

not a part of the original understanding and should never have 

crept into the act to create a wall of separation. The inherent naVerDate Mar 21 2002 14:55 Jul 08, 2003 Jkt 087732 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\HEARINGS\87866.TXT SJUD4 PsN: CMORC
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ture of counterintelligence, and obviously the inherent nature of 

terrorism is that they always will share mixed purposes. The plan 

will sometimes be a roll-up operation. It will sometimes be a dangle. It will sometimes be a false flag operation in the intelligence 

community. It will sometimes be a prosecution. And you cannot, as 

I think the Committee unanimously feels, effectively function in today’s world with a wall of separation between law enforcement and 

intelligence. 

But there is no doubt in my mind that neither the original FISA 

nor this Committee’s action in the PATRIOT Act was intended to 

provide an alternative to Title III for a purely criminal investigation. That would pervert the entire purpose of FISA and in my 

view be a very unfaithful service to the Supreme Court’s decision 

in the Keith case when it laid down what the very distinction was 

between what they call domestic matters and national security 

matters in a different time, but with many similarities. 

I would like to just briefly point out that in the prepared remarks I have suggested a number of improvements and changes 

that I think could be made and comments on some proposed 

changes that I do not think should be made to the FISA situation, 

but I could not agree more with Senator Schumer’s remark about 

the Brandeisian element of sunlight. This process has got to be 

opened up. In my judgment there is absolutely no reason why the 

FISA Court of Review proceeding yesterday could not have been a 

public proceeding or at least mostly a public proceeding, and I certainly believe that the proceeding needs to be adversarial. The ex 

parte nature of both the application process and the appeal yesterday leads to poor judicial decisions, uninformed decisions, and an 

aura of secrecy that undermines public confidence in the entire 

process. And I have advocated for years that counsel can be appointed in certain cases to represent the target without any compromise whatsoever for national security. 

At that point I will cease. Thank you very much. 

[The prepared statement of Mr. Bass appears as a submission for 

the record.] 

Chairman LEAHY. Thank you, Mr. Bass, and I know you have 

taken that position for years. I happen to agree with you. I feel 

that it is something that will be helpful. I do not care who the administration has—I am thinking of it not only for consistency, but 

also to make sure the statute is followed the way it should be. 

Dr. Halperin, please go ahead, sir. 

STATEMENT OF MORTON H. HALPERIN, DIRECTOR, WASHINGTON OFFICE, OPEN SOCIETY INSTITUTE, WASHINGTON, 

D.C. 

Mr. HALPERIN. Thank you, Mr. Chairman. It is a great pleasure 

for me to testify again on FISA. As you know, I was deeply involved in the process that led to the enactment of it. I urged the 

Congress to support it. I still think it is in the national interest and 

plays a vital role. I do think we need to open up the adversarial 

process, and I want to associate myself with the comments of the 

previous witnesses, and particularly the last comments of Ken 

Bass. 

23

As you know, the fundamental starting point to FISA was that 

there was a requirement to gather national security information, 

and that this could not be accommodated within the Title III procedures, and therefore we needed different procedures. But these 

could be made consistent with the Constitution, because the Government’s purpose was not to gather evidence of a crime. Congress, 

of course, recognized that inevitably you would be gathering evidence of a crime and provided procedures to use that evidence, both 

in national security cases and for common crimes. But as the FISA 

Court’s opinion reminds us forcefully, the due process requirements 

in FISA are very different, and therefore can be used only where 

the Government’s purpose is a different one. And I think none of 

the Government’s arguments, as members of this Committee have 

said, can get around that fundamental logic. It cannot be the purpose to gather evidence for the crime and still be constitutional. 

Now, I agree that 9–11 changed things, and that threats required 

different balances, but I think the way to deal with that is to focus 

on the new threat and to limit whatever changes are made in FISA 

procedures to dealing with international terrorist threats. Because 

where you have terrorists operating at home and abroad, seeking 

to kill innocent Americans, the barrier between intelligence and 

law enforcement makes no sense, and the barrier between gathering information at home or abroad makes no sense. 

Now, I see nothing in the FISA legislation, either the previous 

one or the PATRIOT Act, that requires those barriers, but if there 

is any, I think Congress ought to make it clear that there is nothing that prevents that intimate cooperation up to the limit proposed by the FISA Court. That is, the direction and control of the 

tap cannot be in the hands of law enforcement officials. I think 

that is clear from a number of provisions in the statute, including 

the one that Ken Bass points to. But there can be intimate conversations that can be close cooperation that can be the securing 

of advice, everything the Justice Department says that it wants, 

while adhering to the view that the purpose has to be to deal with 

foreign intelligence purposes. Indeed, my view is that when you are 

dealing with international terrorism, the primary purpose is, as the 

Attorney General has said, to prevent further terrorist attacks. You 

do that by gathering foreign intelligence information about international terrorism and then you use that information in a variety 

of ways, one of which might be criminal prosecutions. But if you 

take that approach, you want to break down all the barriers, but 

make sure that the people in charge are the people who are dealing 

with this primary purpose of preventing future terrorist attacks. 

And as I say, it surely should be possible to devise procedures to 

do that which are consistent with the Court’s decision and with the 

purposes of the statute. 

I think the same is true of Senator Schumer’s proposal. While I 

have great sympathy with what he wants to do, I think his proposal does not work, first because since he has not changed the definition of either international terrorism or of foreign intelligence information, in fact you do not accomplish your purpose, because the 

Government would still have to certify that it was gathering international terrorism information, and that includes certifying that it 

is gathering information of an international terrorist group. I think 

24

there are other ways to deal with that problem, either by permitting a warrant until you know which purpose it is, and then moving it in one of two directions in the courts, or by creating a presumption, as the Congress did, about agents of foreign powers engaging in clandestine intelligence, when we had a similar problem 

with Russian citizens within the United States. 

And, Senator, I would be pleased to work with you on that. I 

think this is a problem. I think it can be solved. And I think the 

solution you have is neither the right one, nor one that works. 

Now, I would say more generally, Mr. Chairman, I think if you 

look back at the FISA process, we then arrived at a bill which 

properly balanced national security and civil liberties, not only because there were extensive hearings, but there were extensive conversations among staffs and Senators with the administration and 

private citizens who cared about these issues. And at the end of the 

day, we arrived at solutions that properly balanced national security and civil liberties. That has been lacking since last September 

11th. And I think it is time we reverted back to that process, and 

I think if we do, we can find solutions to Senator Schumer’s concerns, to the Justice Department concerns about being able to have 

all the people in the room and get all their advice, but do so in way 

that remains faithful to the fundamental principles of FISA and of 

the Constitution. Thank you. 

[The prepared statement of Mr. Halperin appears as a submission for the record.] 

Chairman LEAHY. What I want to do, I want to go and vote. Senator Grassley has voted. As an accommodation to him, I suggest he 

begin questions. Do not forget to turn your microphone on. Also, in 

accommodation to the panel, which has been very patient, when his 

questions are finished, if I am not back, we will then stand in recess until I get back. I should be here shortly. Thank you. 

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you very much, and I do not think I 

will take all the time allotted. 

I am going to ask Mr. Kris to listen to some preliminary comments I have leading up to four questions I would like to ask him. 

This Committee, during the course of its oversight hearings and investigative briefings and interviews, has learned that there exists 

a wide variety of interpretations of key provisions of the FISA statute among critical personnel at the Department of Justice. We have 

found, for instance, that FBI agents and attorneys on the one hand, 

Department of Justice attorneys and their managers on the other, 

all have different and sometimes conflicting definitions of what are 

key elements of the law. These very people are occupying positions 

in their organizations that are crucial to the success of the Foreign 

Surveillance Intelligence Act as a meaningful tool in America’s war 

against terrorism. 

Those people charged with moving FISA applications forward 

from FBI investigative units through the Department of Justice, it 

seems to me must have a uniform and correct idea of what it takes 

to meet the statutory minimums required. 

25

So I would like to ask four questions before you answer any, so 

you kind of see them in a context. First, what oversight, review, 

training or inspection procedures has the Department of Justice 

put in place to guarantee that employees administering the FISA 

application process are doing so correctly, and effectively? 

Secondly, when did the Department of Justice put these procedures in place? 

Thirdly, has the Department of Justice arrived at a consensus 

definition of probable cause as it now applies to FISA applications 

and shared that definition with all the agents and attorneys involved in the FISA process? 

And lastly, what other reforms to the FISA process has the Department of Justice proposed or implemented under the direction 

of Attorney General Ashcroft that will prevent the abuses of the 

prior administration from occurring again? And in regard to the 

prior administration, I am thinking about the opinion that referred 

to 75 violations, 74 under the previous administration, 1 that presumably was admitted to under this administration. 

Mr. KRIS. Right. Okay. I think I can answer sort of those questions together. There have been a number of unclassified Department of Justice or FBI guidelines issued addressing any number of 

FISA issues and procedures. Many of those were provided to the 

Committee in connection with our appeal. I am thinking of the July 

1995 procedures, the April 6, 2001 Woods Procedures governing accuracy—and I will actually return to focus on that in a moment in 

response to your fourth question—the Attorney General’s memorandum of May 18th, 2001 on the FISA process, the memorandum 

from the Deputy Attorney General on August 6th, 2001 on the 

FISA process, and in particular on coordination between intelligence and law enforcement officials, the March 6, 2002 procedures, which are at issue in the appeal which the Attorney General 

approved, but we obviously were not able to implement in full because of the litigation. There is also a memorandum concerning file 

review in terrorism cases. There are also many classified guidelines 

that I should not talk about here, but that have been at least 

averted to with the intelligence Committees. So there is actually 

quite a lot of internal guidance that has been issued over the years. 

With respect particularly to the probably cause question that you 

raised, I know that there is in the process right now some FBI 

guidance on that. I looked at a draft of that recently—I cannot say 

exactly when—and actually gave some comments on it. I expect 

that it will be coming out fairly soon. I think one of the things that 

was clear to me in looking at that document is that abstract and 

general statements about probable cause are not always very helpful and indeed is in my view the central holding of Illinois v. Gates, that it is a practical common sense conception and so one of my 

comments was we need to have some examples of particular cases 

in this guidance where there were facts asserted, and the Court 

then found yes or no probable cause, so there is that document 

with respect to that issue that is in the works. 

And finally, on the question of accuracy, which I did not cover 

in my opening—it is in my written statement, but let me say some 

words about that because I think it is very important—there were 

two groups of unrelated FISA cases. The first group arose in the 

26

summer of 2000 and the second group in March of 2001, in which 

there were inaccurate statements made in FISA applications, and 

that is discussed in the FISC’s May 17th opinion. We basically 

adopted both a short term and a long term response to those accuracy problems, and let me try quickly to lay out what those responses were, and I will get at the end to the most important point, 

which is what procedures we now have in place, in direct answer 

to your question. 

In the short term, of course, the first thing we did was correct 

the mistakes with the FISC, with the FISA Court. Indeed that is 

how the Court learned of the mistakes, because we informed the 

Court. We also contemporaneously informed Congress of the problems that had arisen, and that is in keeping with our statutory obligation to keep both the Senate Intelligence Committee and the 

House Intelligence Committee fully informed about our use of 

FISA. 

Third, we opened an internal OPR investigation. That is OPR, 

Office of Professional Responsibility, not to be confused with OIPR, 

the Office of Intelligence Policy and Review, which is the office that 

represents the Department in front of the FISA Court. And that 

OPR investigation is still pending. It is mentioned in the FISA 

Court opinion. In keeping with normal DOJ policy, I will not comment on that investigation except to acknowledge its existence. 

For the long run—those are the three short run—correct the 

record in the Court, inform Congress, and open an internal investigation. 

Senator GRASSLEY. This is in answer to my fourth question? 

Mr. KRIS. Yes. Yes, sir. And then the most important thing that 

I think we did for the long run was in April of 2001, the FBI adopted these so-called Woods Procedures, named after the attorney who 

is their principal architect, and they were provided to the Court, 

also provided to the Committee by Director Mueller, I believe in 

connection with his June 6th testimony of this year. Those procedures are complex and they are quite detailed. The Committee has 

them. I will not go through sort of a technical rundown of the entire thing, but the critical aspect of the Woods Procedures is that 

they require FBI field agents, who are actually engaged in these 

counterintelligence investigations, to review and approve for accuracy the FISA application, which purports to describe those investigations to the Court. 

And that is a critical improvement, and I think it actually has 

been helpful in improving accuracy. And Senator Hatch earlier 

quoted from the speech that Judge Lamberth gave in April of this 

year, a year after those procedures were adopted, in which he made 

some very complimentary statements about the way things were 

going. 

The reason that this coordination and that the procedures are so 

vital is that a counterintelligence investigation is fundamentally 

unlike most criminal investigations. A criminal investigation is 

typically local or at most regional in scope. Somebody robs a bank 

in Boston, Massachusetts, the FBI in Boston will investigate. The 

U.S. Attorney’s Office in Boston will be involved. The Court, if 

there is going to be a wiretap, would be in Boston, and everybody 

is right there. 

27

In a FISA case, in a counterintelligence investigation, we are 

talking by definition about cases that are both national and international in scope because the adversary is an agent of a foreign 

power or a foreign power, and they target this country as a whole. 

So you may have related investigative activity occurring simultaneously in Portland, Oregon, Los Angeles, California, Denver, Colorado, Miami, Florida and so forth, and they are all part of a larger 

investigation of a particular foreign power and its efforts to target 

us in some way. 

The FISA application, in any FISA that relates to that investigation, is of course filed here in Washington, D.C., because that is 

where the FISC is located, that is where the Attorney General is 

located, that is where the Director is located and that is where 

OIPR is located. And the affiant in a FISA application is a Headquarters agent, because that is the agent who is overseeing and coordinating the overall investigation because these investigations 

need that coordination, but the problem is, he is not, this Headquarters agent, actually at ground level out in the field and actually doing the investigation. He is one step removed. And no individual field agent knows absolutely everything about up to the 

minute of what the others are doing, and that is where inaccuracies can creep in, when the Headquarters agent talks about what 

happens in the investigation that is being conducted by others, and 

the Woods Procedures then are designed to deal with that problem 

by requiring coordination and sign-off by the actual field agents 

with respect to the affidavit being filed in the FISC in Washington. 

So that is the key innovation, I think, of the Woods Procedures. 

The May 18th memo of the Attorney General from 2001 goes further in the same direction by requiring additional coordination by 

OIPR and the field. 

That is a long answer, but I hope a——

Senator GRASSLEY. Well, as a way of summary and not for further discussion of this issue, but just so I think you are saying in 

answers to my first, second and fourth questions, that you have 

procedures in place covering oversight, review, training and inspection, and that this administration has put in place further procedures to prevent abuses from occurring again. But am I right in 

saying then that we are still in the process of—if that is accurate, 

then additionally then we still have hanging in the balance here, 

an understanding throughout all of the Department of Justice as 

well as FBI, of what probable cause is. That is not settled yet from 

the standpoint of its application to the FISA process. 

Mr. KRIS. Well, I think there is—I mean the consciousness has 

certainly been raised. I think there is a common understanding. 

The procedures, as far as I know, have not yet gone out on that 

though, so that is right. 

Senator GRASSLEY. Okay. Not the definition of probable cause, 

but the procedures to follow in regard to what is probable cause. 

Mr. KRIS. That is right, yes, sir. 

Senator GRASSLEY. Then my last point would be putting the legal 

issues to the side, but I would like to ask about how the Department of Justice plans will affect FISA investigations. Prosecutors 

and criminal investigators certainly have a place in FISA investigations, and I believe prosecution is one way and sometimes a good 

28

way to disrupt and stop terrorist attacks. But we have to recognize 

that these are intelligence operations first and foremost, and decisions should be made based on national security and intelligence 

concerns. The Justice Department wields an enormous amount of 

influence over the FBI and individual investigations. 

So I want to say what I worry about down the road is that some 

prosecutors who do not have experience dealing with terrorists and 

spies may be tempted to order an arrest for reasons other than national security. That prosecutor may, for instance, want a convicted 

terrorist on his record, even though it is smarter to watch the suspect and learn about his plans and conspirators. The intelligence 

agencies on the case may still be looking for other terrorists in the 

cells, but they get overruled by the prosecutor. I know that if there 

is disagreement, the dispute can go through a chain of command, 

but FBI agents know that prosecutors decide what FBI cases to 

prosecute or decline day in and day out, and they may be hesitant 

to protest a bad decision. What you have described as advice for 

prosecutors to intelligence agency agents could end up being direct 

orders. I have no problem with FISA information being used in a 

prosecution as long as all rules are followed. I am worried that 

prosecution is not always the best decision in terms of national security. 

So, first, is the intention of the March regulations to have prosecutors be in charge of FISA investigations, and who do you think 

should run those investigations? 

And second and lastly, what assurance can you give the Committee that prosecutors will not end up running these cases and 

how will we be able to verify that through our oversight? 

Mr. KRIS. I think that is actually a very fair question. I mean 

one of the main limits on—well, let me say first, I completely agree 

with the premise of your question, which is that in some cases 

prosecution is a good way to protect, and in other cases it is a very 

bad way and then you can mess it up. And there are costs associated with the prosecution of somebody using FISA information. 

Chief among them, you have to reveal publicly the fact that there 

has been FISA surveillance, and that if there are others out there 

who are not being prosecuted, they are then alerted to the fact that 

the Government is on to the conspiracy or whatever, and that can 

obviously be very, very damaging, and there are also other concerns that arise when you prosecute an intelligence case involving 

protection of source and method information, and a variety of other 

concerns. 

And just as a tactical matter, sometimes prosecution is not the 

right way to go. Other times you just want to monitor these people 

or do something else. You try to recruit one of them as a double 

agent. You feed them false information. You disrupt them using 

some other technique. In some cases you do want to prosecute. 

Under FISA already there is a protection against a line attorney, 

line prosecutor somewhere going off and deciding that he is in 

charge and he is going to bring this case to trial, and that is because the statute already provides that before information can be 

used in a law enforcement proceeding, the Attorney General has to 

approve that use. That has been in the statute since 1978, and that 

is only one part of a sort of a general centralized control that exists 

29

in these cases. So before some renegade AUSA, if that is what you 

are talking about, could sort of return an indictment, he would 

have the get approval from the Attorney General. So there is a centralized mechanism in the statute I think that deals with that. 

Senator GRASSLEY. Thank you very much. 

I should probably let Senator Feingold decide what he wants to 

do, but I was told when I was done that we could stand at ease 

if nobody else was here. 

So I thank you very much, and I thank the Chairman for allowing me to question during the time that the vote was going on. 

Thank you all very much. 

Senator FEINGOLD. [Presiding] Thank you very much, Senator 

Grassley, and I will begin my round of questions at this point, and 

I appreciate of course the panel being here today. 

Let me first ask Dr. Halperin and Professor Banks and Mr. Bass. 

It seems to me that Congress was not as clear as perhaps it could 

have been or needed to be when the new FISA rules were rapidly 

drafted and then passed after September 11th as part of the PATRIOT Act. 

So my question is, should Congress essentially try again, and 

codify the FISA Court’s May 17th decision? Mr. Halperin? 

Mr. HALPERIN. Well, I think if that can be done effectively and 

efficiently without opening up a great many other issues, I think 

that might be the way to go. I think a little bit depends on whether 

the Appeals Court and ultimately the Supreme Court, if the Government goes there, upholds the FISA Court’s decision. If it does, 

then it seems to me that the solution to the problem is simply to 

make it clear to the Government that nothing in the FISA statute 

and nothing in the Constitution prevents the kind of consultation 

that the Justice Department witness talked about of getting everybody in the room who is knowledgeable and getting their advice as 

long as the control of the FISA investigation is in the hands of intelligence officials who are using it for the foreign intelligence purpose of preventing further terrorist attacks. 

I do not think there is any reason, if that is done, to change the 

statute. If the Government prevails on its appeal and therefore is 

in a position to use FISA to run a criminal investigation, then I 

think the Congress does need to act and act consistent with what 

every member of the Committee who has spoken has said you intended to do. And I think, frankly, the way to do that is to legislate 

the ‘‘primary purpose’’ standard, which of course was not in the 

statute—it was brought in by the courts—accompanied by clear legislative findings that that does not in any way prevent the full cooperation of law enforcement and intelligence in dealing with the 

problem. I think it is clear that that is what Congress thought it 

had done. If the Court accepts the Government’s view that you did 

something much more radical, and in my view, unconstitutional, 

then I think you should fix it, and I think the legislative fix is pretty clear. 

Senator FEINGOLD. I appreciate that answer, Dr. Halperin. 

Mr. Bass? 

Mr. BASS. Senator Feingold, first let me say that I do not think 

the pending case is the right vehicle for answering the questions 

that are really the focus of the Committee’s concern. I have indiVerDate Mar 21 2002 14:55 Jul 08, 2003 Jkt 087732 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 C:\HEARINGS\87866.TXT SJUD4 PsN: CMORC
30

cated in my remarks that are more extensive, that one thing that 

is wrong with the case is it is unilateral, it is ex parte, there is no 

adversary on the other side, and it is secret, but more importantly, 

as the FISA Court pointed out, they did not rule on when it was 

proper to come to the Court for a FISA surveillance. They only 

ruled on an aspect of approving minimization procedures, which 

only apply in cases of U.S. persons to begin with. And jurisprudentially, the issue in the case and the issue on appeal is far too narrow to address the issues of concern to this Committee. 

In response to the first part of your question, yes, if Congress 

could act, it should, but if Congress were to act as it did in the PATRIOT Act, I am frank to say, no, please do not do that again. 

Senator FEINGOLD. Well, you know I agree with that. 

Mr. BASS. That Act was so hastily prepared, and at least as far 

as I know, nobody ever knew what it did in many of its provisions 

because of its haste. The legislative history is too sparse. And to 

cram congressional intent into a change from ‘‘the purpose’’ to ‘‘a 

significant purpose’’ to deal with all these questions we are dealing 

with today is intellectually impossible. So if you are going to do it, 

do it right, and come up with something that is not the product of 

the usual sort of political compromise, but in fact gives clear guidance as to when you transition from a FISA surveillance to a Title 

III surveillance. 

I am cynically suspicious that that cannot be done very easily, 

and certainly cannot be done in today’s climate. But I am also 

equally convinced that the courts will make a mess of it if they continue to proceed the way this process has proceeded to date, and 

that is with these secret unilateral proceedings in which the FISA 

judges talk to the Executive Branch both in court proceedings and 

in nonproceeding meetings, but they refuse to talk to Congress, and 

that cannot be the way to run the ship. 

Senator FEINGOLD. I thank you for that answer. 

Professor Banks. 

Mr. BANKS. Senator Feingold, I agree with Mr. Halperin and Mr. 

Bass, and Mr. Bass in particular about the inappropriateness of 

using this case as a vehicle for restating what FISA is about. 

I do have mixed feelings about the ‘‘significant purpose’’ standard, but I doubt that it would be wise at this time to revisit that 

question. I think the ‘‘significant purpose’’ rule is not as good a rule 

as was in place before, but I think it only lowered the barrier somewhat for reviewing courts in trying to sort out the relative role of 

law enforcement and intelligence in a joint or some kind of parallel 

investigation. 

I think if Congress wished to be more clear about the limits that 

were imposed in the PATRIOT Act on the information sharing and 

consultation, that it is in that provision that some attention should 

be paid. I think that we have all sort of danced around the difference this morning between consultation and information sharing 

on the one hand and direction and control on the other. That is 

where the cleavage appears to exist, and if there is some legislative 

attention, I would devote it there. 

Senator FEINGOLD. Thank you for that answer, Professor. 

Mr. Kris, the Justice Department claims that a broad interpretation of FISA is necessary to protect our country from terrorism. Yet 

31

this Committee has not heard an example of how more appropriate 

and narrow a construction of FISA, like the one proposed by the 

FISA Court would actually impair our national security. 

Could you please tell us what hurdles a reasonable construction 

of FISA would place in front of our desire for safety, and if the Justice Department prevails in their appeal, what role the established 

intelligence community will have in FISA matters when the primary purpose of using FISA is law enforcement? 

Mr. KRIS. Yes, I think I can do that even in this open forum, although perhaps not with any real case examples for you. 

Let me focus on just one aspect of the FISA Court’s opinion that 

I think is troubling in a—in a relatively clear way. In addition to 

accepting our information sharing provisions and rejecting in part 

our advice giving provisions, the Court imposed a third element in 

the coordination process, requiring what I have called, and what 

are brief refers to as a ‘‘chaperone requirement.’’ The essence of 

that requirement is that before intelligence officials can talk to or 

engage in a consultation with a prosecutor, they must first notify 

OIPR, the Office of Intelligence Policy and Review, which is located 

in Washington, schedule the consultation and invite OIPR to attend or participate if it is by telephone or in person. And for its 

part, OIPR is required by the Court’s order to participate in the 

consultation unless it is unable to do so. And, obviously, I mean 

that really means unable because OIPR has to stand up in front 

of that court on a daily basis, and it cannot sort of start playing 

‘‘cutesie’’ when it is unavailable. 

Well, I think the impact of that should be clear for anybody who 

has experienced running sort of a complex criminal investigation. 

The agents and the lawyers are talking to each other, and should 

be talking to each other, all the time, by phone or in person, many, 

many, many times a day, because something occurs to you, you call 

up the agent, you say, ‘‘Oh, you have got to look into this.’’ The 

agent calls you back, ‘‘Oh, here is what I found.’’ And there is a 

very dynamic process that ought to be going forward, especially in 

these very, very sensitive investigations. If every time a prosecutor 

wants to talk to an intelligence agent about a case, he has to call 

OIPR, and if he wants to meet in person he has to wait for OIPR 

to send a lawyer to fly out there. And as I said, OIPR is in Washington. The FISC is in Washington. These investigations are going 

on all over the place. 

I mean I guess I would say it is very unworkable to have to wait 

for an in-person meeting for somebody to fly out. And what that 

means is that really in effect it is very difficult to have the coordination that is necessary. 

Senator FEINGOLD. Mr. Bass? 

Mr. BASS. Senator, if I could be so bold as to say I am shocked 

at the Department’s position with respect to the role of OIPR. This 

is 2002. If the Department does not yet have in place secure, contemporaneous communication facilities for voice or e-mail, then it 

is light years behind my law firm, and that is abysmal. They have 

presented no justification for objecting to the, quote, ‘‘chaperon provision’’ except administrative inconvenience. I cannot believe that 

that actually is a problem. And if it is, it is one to be solved by allocation of resources. OIPR provides an important role, in my view, 

32

in performing a contemporaneous oversight function in a very difficult area that no other institution of Government can provide. 

And to me the biggest problem with the AG’s proposal is taking 

OIPR out of the loop and allowing criminal prosecutors and intelligence agents to communicate directly without a third party being 

there. Call it pejoratively a chaperone, if you will. I call it a protector of liberty. 

Senator FEINGOLD. Dr. Halperin, and then I will give my 

time——

Mr. HALPERIN. Senator, what troubles me most about this is the 

judges on those courts, we all know many of them have experience 

inside the Executive Branch. None of them are people who are insensitive to the requirements of law enforcement and national security, and that they felt obliged to impose that kind of specific requirement on the Justice Department, suggests to me a level of 

concern not to say mistrust of what the process would be like that 

I find deeply troubling. 

So I think it is very important for this Committee, in its oversight role, to try to get to understand what it is that led the Court 

to decide that that was the only way it could be confident that the 

rules it was laying out were being enforced. 

On the face of it, it seems extraordinary that the judges would 

have the right to do that, and as the Government points out, it is 

hard to see in FISA where they get that authority, but it comes 

from their right as overseers of this process to say what they have 

said in effect, ‘‘We do not have any confidence in this unless that 

happens,’’ and I think that has got to be fixed, whether by implementing this requirement or in some other way. 

Senator FEINGOLD. I thank you all. This is an excellent panel. 

I thank you, Mr. Chairman. 

Chairman LEAHY. I thank you. 

Senator Hatch, and then I will take my questions. 

Senator HATCH. Mr. Kris, after having listened to your colleagues 

here, do you have any additional comments you would care to 

make? 

Mr. KRIS. Well, I mean I guess I agree with Dr. Halperin that 

I do find it difficult to find anywhere in the FISA statute or in Article III, authority for a Court to impose that kind of close management of Executive Branch functions, and to dictate who must be in 

the room when a consultation is going on. I think I am inclined to 

agree with him that it is really not supportable, and indeed that 

is our position on appeal. 

I must say I disagree with Mr. Bass about the practical limitations that such a requirement poses. Even if one can do secure conference calls, which the technology—well, I should not get into 

that. But even if one can do that, there is really no substitute for 

an in-person meeting, and a free and dynamic exchange of ideas, 

which is not to say that OIPR should not be there or that the intelligence lawyer’s perspective is not valuable. But it is one thing to 

say as a matter of Executive Branch management for the Attorney 

General to say, ‘‘well, it is a good idea, though not a ironclad requirement for OIPR to be there.’’ It is another thing for a Court 

to say that they must be there before you can have a meeting, and 

33

I think that is the central legal argument anyway that we are raising. 

Senator HATCH. Let me focus your attention on one particular argument the Government has made on appeal. Specifically you 

argue that the primary purpose of FISA surveillance may be law 

enforcement as long as ‘‘significant,’’ foreign intelligence purpose is 

also present. Now, what evidence do you have that Congress understood that possibility when it enacted the ‘‘significant purpose’’ 

amendment in Section 218 of the PATRIOT Act? Was there any 

discussion of the FISA surveillance being used primarily for law 

enforcement purpose and only secondarily for foreign intelligence 

purposes? Maybe I will go a little bit further. As you can tell, I am 

asking a question that I know the answer to, but I want you to answer it anyway. In fact, several Senators made specific comments 

during the PATRIOT Act debate, indicating their understanding 

that this specific change would increase criminal use of FISA. And 

let me just cite with particularity. A statement by senator Feingold. Quote: ‘‘The Government now will only have to show that intelligence is a ’significant purpose’ of the investigation. So even if 

the primary purpose is a criminal investigation, the heightened 

protections of the Fourth Amendment will not apply.’’

Mr. KRIS. That is correct. 

Senator HATCH. Senator Wellstone said, quote: ‘‘The bill broadens the Foreign Intelligence Surveillance Act, FISA, by extending 

FISA surveillance authority to criminal investigations, even when 

the primary purpose is not intelligence gathering.’’ That was on the 

floor on October 25th, both of them on October 25th. 

On October 11th Senator Cantwell said, ‘‘Although the language 

has been improved from the administration’s original proposal, now 

it would require that a significant rather than simply a purpose of 

the wiretap must be the gathering of foreign intelligence. The possibility remains that the primary purpose of the wiretap would be 

a criminal investigation without the safeguards of Title III wiretap 

law and the protections under the Fourth Amendment that those 

will fill. I would like to ask the Chairman of the Judiciary Committee whether he interprets this language in the same way.’’

Senator Leahy said, ‘‘Yes, the Senator from Washington is correct. While improved, the USA PATRIOT Act would make it easier 

for the FBI to use a FISA wiretap to obtain information, where the 

Government’s most important motivation for the wiretap is for use 

in a criminal prosecution.’’

Well, you know, I do not think there is any question that that 

is what we intended to do, but give us your take on it. 

Mr. KRIS. Well, I mean, I agree with you, Senator Hatch, and 

those citations to those statements are collected in our brief. I 

guess I would also say for the Department’s part, that on October 

1st of 2001 we sent a rather long letter to Congress, and to both 

the Chairmen and ranking members of the House and Senate Intelligence and Judiciary Committees, describing and defending the 

‘‘significant purpose’’ amendment that we had proposed. And that 

letter said, and I will quote from that, quote, ‘‘The Courts should 

not deny the President the authority to conduct intelligence 

searches even when the national security purpose is secondary to 

criminal prosecution.’’ So I do think that—I mean we have in our 

34

brief, and I do rely on this evidence to say that not only is that the 

inevitable consequence of the plain language of the provision, 

which I think it is as a simple matter of grammar, but also that 

at least some members of Congress and the Department, in presenting the amendment, understood that that was what was at 

stake whether they supported it or not. 

Senator HATCH. The Chairman has been kind enough to allow 

me to ask one more question. 

Mr. Kris, in your written testimony you outline the Government’s 

argument that with the modifications of the PATRIOT Act, and 

specifically Sections 218 and 504, FISA may now be used primarily 

to obtain evidence for a prosecution of foreign terrorists or spies. 

Now, in support of that position, you suggest that criminal prosecution is a ‘‘lawful’’ means to protect our country from spies and 

foreign terrorists. And would you elaborate on this argument, citing 

the specific provisions in the PATRIOT Act relating to the definition of ‘‘foreign intelligence information’’ in the FISA statute, and 

explain how criminal prosecution is one of the several legitimate 

means to protect our country from foreign spies and terrorist attack. 

Mr. KRIS. Sure. 

Senator HATCH. You made that point earlier, but I would like 

you to elaborate on it. 

Mr. KRIS. Yes, sir. FISA, as enacted in 1978 said that the Executive Branch must certify, and in the case of a U.S. person, the 

Court must find that the certification is not clearly erroneous, that 

the purpose of the search of surveillance is to obtain this category 

of information known as foreign intelligence information, and ‘‘the 

purpose’’ was read as the primary purpose and then later changed 

to a ‘‘significant purpose.’’

But what your question goes to is exactly what is this thing that 

we are having some purpose to obtain? What is foreign intelligence 

information? Well, it is defined in 50 U.S.C. 1801 (e)(1), to include 

information that is necessary to the ability of the United States to 

protect against a list of specified foreign threats to national security, including both espionage and international terrorism. The 

basic thrust of our argument on appeal is that information can be 

used to protect against these threats in a variety of different ways. 

There are diplomatic methods that can be used. There are military, 

paramilitary, economic sanctions, intelligence methods, and there 

is also law enforcement methods. It is back to that analogy, you 

can do chemotherapy to stop cancer, or you can do surgery to stop 

cancer, and there are a lot of different ways to go about it. 

Sometimes prosecution is the good way. Sometimes it is not. But 

there is nothing in that definition in 1801(e)(1) that discriminates 

between law enforcement methods of protecting against these 

threats and other methods of doing so. The only thing that FISA 

says about the use of information is that it be lawful. And that 

would mean, for example, you could not use the information say for 

some unlawful blackmail or for some other thing that would be unlawful. Prosecution is actually a lawful thing to do. And that really 

is the center of our argument on appeal,and it is based not only, 

as I say, on the plain language of the 1978 version of FISA, but 

also on Section 504 of the USA PATRIOT Act which is now codified 

35

at 50 U.S.C. 1806(k) and 1825(k) for physical searches, which in 

our view reaffirms this original idea that foreign intelligence information includes information that will be needed to protect regardless of the method, law enforcement or otherwise, that is used to 

achieve that protection. 

Senator HATCH. Thank you so much. 

Chairman LEAHY. Mr. Kris, you keep using the analogy of treating a cancer patient. I have a feeling you are probably a far better 

lawyer than you are a doctor. 

Mr. KRIS. That is probably correct. 

Chairman LEAHY. And another way you could use the analogy in 

making the kind of choices the Department of Justice would want 

it to be, would be that the cancer patient were told, ‘‘Well, you have 

a choice of going to this team of oncologists at Johns Hopkins or 

to the law firm of Smith, Smith and Smith.’’ I mean, frankly, that 

is about what is happening, because what you have done, you have 

had to stretch the language of the FISA statute to reach a position 

that criminal prosecution is a type of foreign intelligence purpose. 

Congress never intended criminal prosecutors to be able to choose 

to use FISA as their first choice. 

In your written testimony, you cite a single sentence from a 

lengthy letter that the Department wrote during consideration of 

the USA PATRIOT Act in the Senate. The one sentence you quote 

is in the section discussing Court-imposed constitutional limits in 

FISA. What you did not cite in your testimony today was a section 

of the same letter in which DOJ addressed a meeting of the new 

proposed statutory language which says, ‘‘In light of this case law 

and FISA statutory structure, we do not believe that an amendment of FISA for ’the purpose’ to ’a significant purpose’ would be 

unconstitutional as long as the Government has a legitimate objective in obtaining foreign intelligence information. It should not 

matter whether it also has collateral interest in obtaining information for a criminal prosecution. As courts have observed, the criminal law interest of the government did not taint a FISA search 

when its foreign intelligence objective is primary.’’

Now, how do you square that with the view you have advocated 

that the amendment was intended to allow the use of FISA for 

cases where the criminal interest was not collateral but primary? 

Mr. KRIS. Well, as I understand what you just read, it is a description of the primary purpose case law, which such as it was, 

certainly did hold or at least indicated—the case law is somewhat 

more ambiguous than maybe I am saying—but in any event, assume that it did indicate, if it did not hold, that the primary purpose must be something other than law enforcement. I think that 

is, for example, the holding of the Troung decision from 1980 in the 

Fourth Circuit. 

But the idea was actually to change that, and—so I think the one 

part of the letter is describing the law and the other is describing 

what the amendment would do to the law, and I think really it is 

quite inevitable as just a matter of common English. 

Chairman LEAHY. Is this a new argument for the Department of 

Justice? 

Mr. KRIS. No, it is an old argument, Senator. I mean it is in our 

brief. 

36

Chairman LEAHY. But has it been advanced before in the courts? 

Mr. KRIS. Oh. No. In that respect, yes, it is a new argument. 

This is not an argument——

Chairman LEAHY. Is this saying that for 20 years the courts have 

been deciding these things wrongly? 

Mr. KRIS. Well, in effect, yes, it is saying that. I mean, I think 

as I said, you can quibble and reasonable minds can differ about 

exactly to what extent the courts actually held this rather than just 

assuming it, and there is not that much published case law here. 

Chairman LEAHY. Well, we have a hard time finding much published because probably Justice does not want to answer our questions. I read in CQ, I think it was today, that the Republicans for 

the House Judiciary Committee wants to start subpoenaing these 

answers. If the Department is correct, if criminal investigators and 

prosecutors may actually direct or control a FISA wiretap, does 

that mean that the information sharing consultation provisions 

that we wrote into the USA PATRIOT Act that are directed at intelligence officials are sort of moot or superfluous? 

Mr. KRIS. I am not sure I follow your question. I mean——

Chairman LEAHY. Well, you cannot share with yourself. See, this 

is what I do not understand. I mean basically what you are trying 

to do is change 20 years of a way of doing things. 

Mr. KRIS. Yes. 

Chairman LEAHY. And we find from the courts that some of the 

mistakes made by the Department of Justice coming before them, 

I guess even to the extent that one person was probably Justice has 

been banned from the courts. Are you trying a new interpretation 

to cover your mistakes, or a new interpretation because you think 

that is what the law is? 

Senator HATCH. The law has changed. 

Mr. KRIS. Well, yes. I mean——

Chairman LEAHY. Well, that is why I am asking the question. 

Mr. KRIS. Senator Leahy, I do think we are trying to change, and 

I think we are pretty overt about it, 20 plus years of practice, and 

I do think that is what the PATRIOT Act represented, was a paradigm shift in this area. And you have cited——

Chairman LEAHY. Then you would say the court is wrong in a 

unanimous opinion when they say the Attorney General’s proposed 

procedures for the FISA, quote, ‘‘appear to be designed to amend 

the law and substitute the FISA for Title III electronic surveillances and Rule 41 searches. This may be because the Government 

is unable to meet the substantive requirements of these law enforcement tools or because the administrative burdens are too onerous. In either case these procedures cannot be used by Government 

to amend the Act in ways Congress has not.’’

You disagree with the court? 

Mr. KRIS. Yes, I disagree. 

Chairman LEAHY. You disagree with the unanimous opinion of 

the court? 

Mr. KRIS. Yes. I mean we disagree respectfully, and we have a 

lot of respect for that Court, but I mean that is what it means 

when you—I mean we are appealing because we think they got it 

wrong. 

37

Chairman LEAHY. I have argued a few appeals myself. I understand what appeals are. Thank you. Although I have never been 

in a case where I could argue the appeal in secret and be the only 

person appealing even when I represented the Government, I was 

never able to argue in a secret hearing before a court that meets 

in secret and where the other side cannot be heard. From a government attorney’s point of view, it must be a lot of fun. 

[Laughter.] 

Mr. KRIS. That is not the word I would use to describe the process, and I have—I want to apologize. I did not mean to be—I know 

that you have law enforcement experience as a prosecutor, and I 

do not mean to be disrespectful. 

Chairman LEAHY. No, and you were not, Mr. Kris. 

Mr. KRIS. I mean we do disagree with the Court and we are—

we will see what happens in the appeal. If we are right on the law, 

then I guess the Court will tell us, and if we are wrong on the law, 

then I am sure the Court will tell us that too, and we will have 

to see. 

Chairman LEAHY. Well, if the Justice Department is now wanting to use FISA as a tool in matters brought primarily for law enforcement purposes, should we consider importing some of the procedural protections applied at criminal wiretaps to FISA wiretaps? 

Mr. KRIS. Actually, that issue did come up in one of the briefings 

I did for the staff. I think that we would be prepared to discuss 

some other reforms in FISA. I think some of the requirements at 

least that existed on the Title III side are not a good fit for FISA. 

There may be some things that we can do. I guess what I would 

say is an intelligent discussion of additional changes in this area 

I think ought to await the implementation of—well, first the decision of the Court of Review. We will have to see. We may be all 

mooted out by a decision that affirms, in which case none of this 

will be in play. 

If we prevail in the appeal, then I think there will be a period 

of the mandate going to the FISC and the FISC and us interpreting 

the Court of Review’s decision, and then a period of education of 

our people because if our arguments are accepted, it is a big 

change. And we are certainly not hiding from that. It would be a 

big change, but that is going to take some time to get the word out 

and educate our line attorneys and agents. And then I think what 

you will see is as that happens, cases developing in a different way, 

and one might see public prosecutions that occur using FISA under 

a different pattern. And I think it would be useful to see what happens in that respect. 

Chairman LEAHY. Let me ask this last question, and I ask it of 

the whole panel. 

We were talking about development of the secret body of laws 

without public scrutiny, and that is very unusual, not only in our 

democracy but any democracy. The Department is urging broader 

use of the FISA in criminal cases. And you are going to lose, ultimately lose public confidence both in the Department and in the 

courts, unless you can, by public reporting or otherwise show this 

is being used appropriately. Right at the moment, as we worry 

about terrorist attacks, there is a certain amount of freedom given 

you, but people are beginning to worry more and more from across 

38

the political spectrum. So, do you see any problem with public reporting of the number of times FISA is used on U.S. persons, the 

legal reasoning used by the FISA Court, or the number of times 

FISA information is used in criminal cases? 

I ask that question because the answer and what happens is certainly going to reflect the debate which is coming up actually, in 

congressional terms, fairly soon, about whether we sunset all these 

provisions. 

So what would you say, Mr. Kris? Then we will go to the other 

members. 

Mr. KRIS. Yes. I mean they do sunset at the end of 2005. We are 

very acutely aware of that. I think that part of what you said 

might be possible, part I think is not a good idea. 

Chairman LEAHY. Tell me what part is possible and what part 

is not. 

Mr. KRIS. I think, for example, disclosure of the number of ‘‘U.S. 

person’’ cases involving FISA to the public could pose some operational risks for us. I do not want to—not in this hearing anyway—

get into them. We do report that kind of data and more to the intelligence Committees on a twice-annual basis, and it is quite an extensive written document that is produced to them, and I know 

that—well, there are members of this Committee that are also on 

the other Committee, so they know what I am talking about. I 

worry about disclosure of certain operational information that 

might be useful to the adversaries in avoiding coverage. We do not 

want to give them too much of a road map of how we go about 

doing this. 

Chairman LEAHY. How about reporting the number of times that 

FISA information is used in criminal cases? I would assume these 

criminal cases are open and public. 

Mr. KRIS. Yes. Indeed we already report, under a relatively recent amendment to FISA, we already report exactly that information to the intelligence Committees. 

Chairman LEAHY. You do a classified report about what was 

done in an open public court. I am asking what do you think about 

reporting the number of times this information is used in criminal 

cases, assuming those criminal cases have been in an open court 

with the press and everybody else available? 

Mr. KRIS. Well, I will say that I agree with you that the information that reveals the use of FISA in a criminal trial is public. The 

trial is public and notice is given to the target or any aggrieved 

person against whom the information is used. So at that point you 

are not hiding the fact any longer of the existence of a FISA. And 

I will—I am not authorized to commit the Department, obviously, 

but I will take it back and we will, I think, look forward to working 

with you as the—I mean we will be——

Chairman LEAHY. But I might not be following what happened 

in the Western District of Pennsylvania or the Southern District of 

New York on all these hundreds of cases, but you certainly have 

to know. And it has been publicly disclosed, and it would be interesting to know, because obviously, if you have a huge increase in 

the number of criminal cases that turn out to be things like mail 

fraud and so on, then we might want to know. And we all want 

to think that our priorities are counterintelligence and protecting 

39

us, but we also now that investigations go on in such things as, as 

was brought out in one of these hearings: the amazing discovery by 

the Department of Justice that there were some prostitutes in New 

Orleans, something that nobody ever would have known about if 

they had not done that. 

[Laughter.] 

Chairman LEAHY. Professor Banks. 

Mr. BANKS. As you said, Senator, the secrecy in the process is 

ultimately corrosive, and anything that the Department and the 

Congress can do to reduce the amount of secrecy that attends a 

necessarily secret process is a good idea. 

I think your two specific suggestions are good ones. I do understand the operational sensitivity of a ‘‘U.S. persons’’ disclosure, and 

perhaps there is a middle ground there. I made several other specific suggestions in my written remarks about oversight mechanisms that could open up the process to some degree. 

Chairman LEAHY. Thank you. 

Mr. Bass? 

Mr. BASS. Senator, the specific proposals would only enhance national security if they were enacted. The only legitimate security 

concern about disclosing publicly the number of U.S. persons was 

theoretically in the early years when that number may have been 

two that we would disclose, having prosecuted two, people that we 

weren’t targeting. 

I can’t believe the number is that small in the present circumstances, but at the same time I am absolutely confident that 

the number of U.S.-person-targeted surveillances in the FISA environment is so small compared to the total volume that the United 

States public and this Committee could only feel more comfortable 

about our national security, which for me includes liberty as well 

as counter-intelligence and counter-terrorism, if that number were 

publicly known. 

If I could briefly comment, though, on one point about the statement that was made about the Department understanding the PATRIOT Act as trying to reverse 20 years of judicial history, that is 

not the way I viewed what the Congress did. 

I won’t elaborate on it because it is in my prepared testimony, 

but in the early days the original understanding of the Act did not 

include a primary purpose test and did not include a wall. The primary purpose test and the wall developed largely in 1995 as a result of things this Committee knows better than I do, but can certainly find out about. 

I read the PATRIOT Act as saying tear down the wall. I read the 

PATRIOT Act as saying go back to the original understanding, not 

to go beyond the original understanding and to transform FISA 

into an alternative Title III, which is what I hear the Department 

saying today. 

Chairman LEAHY. Thank you. 

Mr. Halperin? 

Mr. HALPERIN. Well, first, if I can comment on that very briefly, 

the fact is that the paragraph that you read, Mr. Chairman, is not 

in the section of the letter that Mr. Kris said it is in. It is in the 

section of the letter precisely interpreting what would be the meaning of the new ‘‘significant purpose’’ section. So I think the Justice 

40

Department has created a legislative history for itself which supports the Committee’s interpretation, and the letter speaks for 

itself and where it is in the letter speaks for itself. 

On the issue of how to make it more open, I do want to say that 

I find it somewhat strange that this is always referred to as a secret court issuing secret warrants, because, of course, all search 

warrants are done ex parte in secret just with the government. So 

in that sense, this isn’t any different. 

But I do think that nobody contemplated that decisions of law 

which were unclassified would not be made public, and I think nobody contemplated that appeals which dealt with legal issues 

would be non-adversarial and in secret. And I do think that Congress needs to make it clear that if the court issues unclassified 

opinions, they need to be published. You don’t have to wait until 

you somehow find out about them and ask for them. 

I also think that what happened yesterday was disgraceful: a 

hearing on legal issues in which there was no adversarial process, 

in which the public was not allowed to be present. If the Government thought it needed an additional session in camera to present 

some information, as it did in its brief, that could have been decided by the court and would have been appropriate. 

But the notion that you have a public opinion, you have a public 

Government brief, and you have a secret non-adversarial hearing 

goes against, I think, every fundamental element of what we understand to be the way to protect individual rights in a constitutional process. And I think if the court doesn’t correct that, Congress needs to do so. 

Chairman LEAHY. Thank you. 

Senator DEWINE.

Have you asked questions? 

Senator SPECTER. No. 

Chairman LEAHY. I am sorry. I thought you had asked questions. 

I apologize. 

Senator SPECTER. No, I have not. 

Chairman LEAHY. Senator Specter. I do apologize. 

Senator SPECTER. Mr. Kris, taking up the issue of standards for 

probable cause on warrants under the Foreign Intelligence Surveillance Act, I know you have the case of Illinois v. Gates because you 

showed it to me when I walked by to greet you before the hearing 

started. I had thought that the Gates case was prohibited reading 

for the Department of Justice and the FBI. 

Is there any doubt in your mind that the appropriate standard 

for the issuance of a warrant under the Foreign Intelligence Surveillance Act? It does not require preponderance of the evidence? 

Mr. KRIS. There is no doubt in my mind on that score. 

Senator SPECTER. Or any higher standard? 

Mr. KRIS. Certainly not higher. 

Senator SPECTER. And the definition which then–Associate Justice Rehnquist articulated, going back to the opinion by Chief Justice Marshall all the way back to the Cranch case in 1813, turns 

essentially on suspicion and a totality of the circumstances? 

Mr. KRIS. I completely agree. 

Senator SPECTER. Do you know if there has been any effort since 

the June 6 hearing with Special Agent Rowley and FBI Director 

41

Mueller where this Committee took up in great detail that question—whether there has been any effort to educate the agents of 

the FBI about that standard? 

Mr. KRIS. Yes, sir, there has been, and indeed I think this came 

up in my earlier answers to Senator Grassley’s questions. I know 

the Bureau is preparing some guidance on the probable cause. 

Senator SPECTER. Who is preparing it? 

Mr. KRIS. The FBI, and I myself actually reviewed a draft of that 

guidance, I don’t know, a week or two ago. 

Senator SPECTER. Well, had that been done before we had the 

closed session with the FBI agents on July 10? 

Mr. KRIS. I don’t know the answer to that. I certainly don’t think 

I reviewed a draft until after July 10. I couldn’t tell you whether 

it was——

Senator SPECTER. Why does it take so long, when these warrants 

are so important to find out what is going on with possible subversion or possible terrorism? 

Mr. KRIS. I really can’t answer that fully. I can say that when 

I saw the draft, the suggestion I had was because probable cause 

is such a fact-intensive inquiry, because it is a pragmatic, fluid concept, you can’t actually say much that is meaningful and actually 

helpful in the abstract. 

What you need to focus on are some examples of real cases with 

real facts in which the facts are such and such, and the court rules 

yes or no, there is or is not probable cause. So I think maybe the 

crafting of the guidance has taken some time. They want to get it 

right, they want it to be helpful, they want it to be useful and good. 

So sometimes that takes some time, but I am not really intimately 

part of that process. I just reviewed this draft recently. 

Senator SPECTER. Well, I do not agree with you that definitions 

in the abstract are not helpful. They may not be conclusive, but 

when the court articulates a standard for probable cause, they cannot start to run out a whole string of examples; they have to generalize. 

When you have Associate Justice Rehnquist, now Chief Justice, 

articulating that standard, isn’t it minimal that the FBI agents 

would know the case? It may not provide all the answers, but it 

is a start, isn’t it? 

Mr. KRIS. I mean, I maybe overstated in my prior answer. I don’t 

mean to say that there is nothing useful to be said in the abstract, 

but saying something like it is not a preponderance or a ‘‘more likely than not’’ standard is a good start—I will take your point on 

that, but I think that good guidance here would actually trot out 

a series of examples because, at ground level, I think the central 

teaching of Gates is that it is such a fact-intensive question and it 

is such a pragmatic standard that at least you can’t just describe 

these things in abstract terms. You need to get down in the weeds 

and dig in. 

So maybe I will retract my statement to the extent I said abstract is no good. It is just not the whole picture. 

Senator SPECTER. Well, would you find out for this Committee 

when the standards were propounded and would you furnish this 

Committee with a copy of the standards, and would you seek to 

provide an answer as to why it has taken so long? 

42

The generalizations that you have given I consider inadequate if 

it wasn’t done by July 10. We will find out when it was done, and 

I would prefer to ask Director Mueller these questions, but he is 

not here and he hasn’t responded to correspondence. 

We had a lengthy session with Attorney General Ashcroft on this 

matter during the oversight hearing and it got me a luncheon invitation to meet with him and his top deputies at the Department 

of Justice. Frankly, I wasn’t interested in lunch, but I was interested in an answer. So I went to lunch and then I finally got an 

answer. 

But to say that it is disquieting is an understatement. To say 

that it is disrespectful to the Judiciary Committee is an understatement. But the real point is that it puts Americans at peril if the 

Department of Justice and the FBI don’t know what the standard 

is, if they are applying a standard which is too high. 

So we have the converse here of the FBI and the Department of 

Justice being uninformed about the standard and applying the 

wrong standard. And you have a public hearing on June 6, widely 

publicized. Agent Rowley was all over the newspapers, all over television, and by July 10 the FBI agents still don’t know what the 

standard is, and then my letter to the Director the very next day 

to try to get some motion. 

So let us know the specifics as to when they acted and the specific instructions which were given and an explanation, if you can 

provide one. 

And just for a moment, having not been as vigorous as the Department ought to be, is there some effect on being gunshy by the 

FBI as a result of one agent being disqualified from applying for 

warrants to the FISA Court? 

Mr. KRIS. I don’t—and I have said this before in briefings—I 

don’t see a connection between concerns about the accuracy of FISA 

applications and the facts reported in them and the adequacy of 

those facts to establish probable cause. 

The accuracy principle requires us to tell the truth to the court 

and give the facts, good, bad and ugly, such as they are, and not 

to omit material facts and not to misstate material facts. That is 

an obligation the Government always has in dealing with any 

court, but it is particularly potent with respect to this court, in part 

because of the nature of the proceedings. 

Senator SPECTER. So your answer is no? 

Mr. KRIS. I don’t see a connection between that and what you 

call being gunshy about facing up to the facts such as they are and 

then pushing them to probable cause. 

Senator SPECTER. My red light is on, so I want to conclude this. 

The Committee intends to go into detail as to why the agent was 

disqualified. I think that is a very severe consequence for the court 

to disqualify an agent and we intend to look at it. 

If the court disqualifies him from being an agent, he still is an 

agent. He appeared in our closed session. 

Mr. KRIS. Yes. 

Senator SPECTER. Then there is a question about whether he 

ought to be an agent. Speaking for myself, I don’t think the FBI 

ought to sit back and let an agent be disqualified unless there is 

really a basis for it. They ought to protect the agent, but that is 

43

an oversight function for this Committee. We will take a look at 

what the court has done and what the FBI has done. 

Mr. Halperin, just one question for you. You are a veteran of this 

line and have special insights, having been the subject of illegal 

eavesdropping over wiretaps yourself. Do you have any reason to 

challenge what the FBI or the Department of Justice is doing 

under the Foreign Intelligence Surveillance Act or Title III wiretaps at the present time? 

Mr. HALPERIN. Well, of course, the problem is that we don’t really know because we don’t learn until much later. I was frankly very 

disturbed by the court’s decision. That is, as I have said, a group 

of very distinguished judges. Many of us have worked with Royce 

Lamberth when he was in the Justice Department, know of his decisions on the court. 

Senator SPECTER. Why were you disturbed with the decision? I 

would have thought you would have liked it. 

Mr. HALPERIN. I liked the outcome. What I was disturbed by was 

the clear indication that the judges, not only on the issue of the incorrect facts, but in their view that the Justice Department had 

misinterpreted the intent of Congress in the statute—that the Government was, in fact, doing things that it should not be doing. I 

was pleased that the judges ruled the way they did. I think their 

decision was correct. 

But I think it underscores the fact that oversight by this Committee, by the Congress as a whole, making the court procedure 

more open to the degree that we can and more adversarial is necessary because otherwise there is no way to find out what is to be 

done. 

It is also, I think, a problem, in my view, that the courts have 

misinterpreted the provisions of the statute that deal with what 

happens when the Government uses FISA information in a criminal prosecution. As I understand it, there has not been a single 

case in which the defendant has been given the justification for the 

wiretap so that there could be an adversarial confrontation as to 

whether there was, in fact, probable cause. 

The statute says that needs to be done when due process requires it, and I think the courts have misinterpreted it to say that 

a non-adversarial, in camera hearing is always sufficient. That increases the sense that we can’t really know what is going on because even people, where it is used against them in a criminal 

trial, don’t have what I think is the necessary opportunity to challenge that. 

Senator SPECTER. Well, I would like to go further, but Senator 

DeWine has been waiting a long time. In conclusion, I would just 

say we intend to pursue it. This oversight is going to be pursued, 

but I have to tell you it is like pulling teeth, with all due respect, 

Mr. Kris, dealing with the Department of Justice, like pulling 

bicuspids dealing with the FBI. And it is pretty hard to deal with 

the court, telling us separation of powers, when we are looking for 

an opinion. That is not separation of powers, to read an opinion. 

Thank you, gentlemen, for being here. Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you, Senator. 

Senator DEWINE.

44

Senator DEWINE. Well, Mr. Chairman, let me just reiterate what 

I said earlier in my opening statement, to follow up on what Senator Specter just said, that it is impossible for this Judiciary Committee and for the Intelligence Committee and for Congress to have 

proper oversight because we don’t know what the court has been 

doing. It is one of the only times that we have passed a law that 

we don’t have any really good indication of its effectiveness. 

You know, it is obvious from this panel and this Committee that 

we are probably divided on how we look at this and which way we 

should be going. But without the ability to get the information, it 

is just very, very difficult. 

Mr. Kris, let me get back to you one more time. I know you are 

having a great day today. Thank you for being with us, and all the 

panelists. It has been a good panel. Mr. Bass said a few minutes 

ago that he believes that you at the Justice Department look at 

FISA as an alternative to Title III, and I want to kind of explore 

that with you because I am still not clear and I don’t think it is 

clear how far you all think the law does, in fact, go. 

The PATRIOT Act, in Section K, talks about coordination with 

law enforcement and I will read part of it. ‘‘Federal officers who 

conduct electronic surveillance to acquire foreign intelligence information under this title may consult with federal law enforcement 

officers to coordinate efforts, to investigate or protect against,’’ and 

three things are listed. Then it concludes: ‘‘Coordination authorized 

under paragraph (1) shall not preclude the certification which is required by section,’’ et cetera. 

How far does this go and what is your position? I mean, do you 

believe that the correct interpretation of the law is that Justice 

can, in fact, direct FISA investigations, or that law enforcement 

can? It is not clear how far that goes. I know what the statute says. 

I have looked at your guidelines. ‘‘Consultations may include the 

exchange of advice and recommendations on all issues necessary to 

the ability of the United States to investigate or protect against foreign attack.’’ And then it goes on later on: ‘‘initiation, operation, 

continuation, or expansion of FISA searches or surveillance.’’

Mr. KRIS. There is a very long answer to your question which I 

will avoid for now, and then there is a shorter answer. So let me 

start with the shorter one, and that is I think that direction or control by law enforcement——

Senator DEWINE. Well, let’s start with my first question, though, 

whether or not you really think that this is an alternative to Title 

III and you can just kind of pick and choose, which is the inference 

from Mr. Bass. 

Mr. KRIS. Yes, I mean I guess I would say that is right at least 

to a certain extent, or at least to the following extent. If we are 

faced with a case in which we satisfy the standards of Title III and 

we also satisfy the standards of FISA, then it would be a matter 

of choice which avenue——

Senator DEWINE. Okay. I would interpret that as a ‘‘no, but,’’ but 

you can say it however you want to. 

Mr. KRIS. I mean, I do think it is an alternative. 

Senator DEWINE. You are saying you have to meet the requirements of FISA? 

45

Mr. KRIS. Yes. So in that sense, of course, it is an alternative. 

I mean, I think maybe what Mr. Bass is getting at is that our interpretation of FISA makes it available even when prosecution is 

the purpose of the surveillance, and with that I certainly do agree. 

Our fundamental——

Senator DEWINE. Agree in what way? 

Mr. KRIS. I agree that prosecution—when you are dealing with 

spies and terrorists and those listed threats that you mentioned 

that are cited not only in the definition of foreign intelligence, but 

also in the——

Senator DEWINE. Which the law says you can cooperate with. 

Mr. KRIS. Right. When you are talking about those threats, I say 

that FISA does not discriminate among law enforcement methods 

and other methods of protecting against them. So it doesn’t matter 

for purposes of FISA whether the goal is to protect against espionage by prosecuting Robert Hanssen or whether the goal is to protect against espionage by flipping him and turning him into a triple 

agent and running him back against his handlers. That difference 

is not a difference that has traction in FISA. That is the Government’s position. 

Senator DEWINE. But you would qualify that, I guess, by what 

you said a moment ago that if you are proceeding under that, you 

still have to qualify under both. Is that right? 

Mr. KRIS. Under—I am sorry—both what? 

Senator DEWINE. Title III and FISA. 

Mr. KRIS. No. If you file a FISA application, you need only satisfy 

FISA. You don’t need to worry about Title III, and vice versa. 

One other point I should make is it is easy to take these ‘‘purpose’’ provisions in isolation from the rest of the statute. I think it 

is important to point out one very key difference between Title III 

and FISA which does make a difference about their availability 

apart from the law enforcement purpose, and that is who can be 

a target. 

Title III can basically apply to any felon in the case of electronic 

communications and to anybody who commits a long list of predicate felonies set forth in Section 2516 for wire and oral communications. It doesn’t say anything about who the target is, other than 

that it be somebody who is committing these list of crimes. 

FISA, by contrast, is confined to persons who qualify as agents 

of foreign powers. So if there is an investigation of Bonnie and 

Clyde for bank robbery, or even John Gotti, that is not a FISA—

you can’t do that under FISA. 

Senator DEWINE. My time is up, but let me just close, with the 

chairman’s permission. In the Attorney General’s guidelines, the 

term ‘‘direct’’ is not used, and so I would like to understand whether Justice intended to have prosecutors direct FISA investigations. 

Mr. KRIS. Well, I would say that the term ‘‘direction and control’’ 

is not in our procedures, nor is it anywhere to be found in FISA. 

Direction and control—I mean, I don’t even know exactly what that 

is. If it means advice-giving, I think there is a lot of advice-giving. 

If, however, direction and control were exercised by prosecutors, 

if they started bossing around the intelligence agents to the point 

that there was no significant foreign intelligence purpose for the 

46

surveillance, then, of course, we would be over the line. There must 

be a significant foreign intelligence purpose for the surveillance. 

I think direction and control is just a proxy that has no textual 

anchor in FISA, and it is a bad proxy. The test that matters always 

is, is there a significant foreign intelligence purpose for this surveillance. In some cases, there will be direction and control and 

there still will be a significant foreign intelligence purpose. In others, there wouldn’t be. It would depend on the facts, but I think 

we need to focus on what the statute actually says and not some 

formula that was created as a proxy. And it appears in the 1995 

guidelines—I don’t mean to cast aspersions on others, but I don’t 

think it is rooted in the text of the statute. So I don’t think it ought 

to be used instead of the actual text of the statute. 

Senator DEWINE. Thank you. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Well, I thank you gentlemen for 

this. 

Mr. Bass, you know, I couldn’t help but think when Mr. Kris was 

answering that that your eyebrow went up a bit. 

Mr. BASS. It did. 

Chairman LEAHY. Was I reading that correctly? 

Mr. BASS. You did. Let me put a specific hypothetical to the Committee and to Mr. Kris that I think highlights the concern at least 

that I have. 

If we had in the beginning been presented with an FBI agent 

from the Southern District of New York who came in and said we 

have uncovered evidence of securities fraud being engaged in by 

this U.S. citizen who is an employee of Deutschebank and we want 

to do a FISA surveillance, it would not have taken us two minutes 

to say go down to the Criminal Division, don’t come to us, despite 

the fact that I think legally we could have worked that surveillance 

into the text of FISA. 

But the critical difference would have been that in that sort of 

case, there was absolutely no intention in anybody’s mind of using 

it as part of a national security policy concern. It would not have 

gone to the NSC, it would not have gone to State, it would not have 

gone to the White House. It would have remained a purely domestic law enforcement matter. 

I haven’t heard the Department of Justice publicly confront that 

sort of hypothetical and tell us what they think the PATRIOT Act 

did to that calculus. I hear some overtones that say, well, we think 

if we could squeeze it under the language of the Act and make that 

a matter of statutorily defined foreign intelligence, we could do that 

surveillance even if we had no intention from day one of ever doing 

anything except to conduct a criminal investigation. 

If that is their view, I think they are dead wrong with respect 

to congressional intent, to the extent I can divine some intent from 

the PATRIOT Act, and I think they are dead wrong as a matter 

of public policy. But that is the issue for me that we are still waltzing around. 

Senator DEWINE. Mr. Chairman, just one last comment. The 

chairman has been very indulgent. 

Chairman LEAHY. Always. 

Senator DEWINE. I know. I appreciate it, Mr. Chairman. 

47

We are going to have this debate, and I am glad we are having 

this debate. I think it is very proper and I think a lot of good points 

have been made, but it seems to me that the bottom line is going 

to come down to a common-sense approach, however we craft it, 

and that is the question why are we after this guy, why do we 

want him? 

It seems to me that is what Mr. Bass was saying, and I think 

it was frankly what Mr. Kris was saying. The public would pretty 

much understand that. Why do we really want this guy? Is it a national security issue or is it because he is a no-good bum and he 

is violating the law and we have to go get him? It seems to me that 

is what it is going to boil down to. 

Chairman LEAHY. Yes, but we should never forget the history of 

how this all got put into place. 

Senator DEWINE. Well, we are not going to forget that. 

Chairman LEAHY. No. I mean, in a society like ours we do have 

these checks and balances. The Senator from Ohio is a former prosecutor. We both used to hear people say, boy, we have got to get 

rid of all these technicalities so we can get at the criminals. We 

tended to be able to work pretty well with the technicalities, from 

Miranda to search and seizure, because we knew it did give a 

check and balance. 

I don’t want to go back to the days in the past when we started 

going into these investigations because we didn’t like somebody’s 

political views or religious views, because that is a sword that can 

cut too many ways. 

Somebody had answered about the Woods Procedures. We got 

those declassified and released at our June 6 hearing. I believe it 

was you, Mr. Kris, who mentioned it. I am glad they are working 

to increase the accuracy of affidavits given to the FISA Court. 

I think we are going to have to have a lot more hearings on this. 

I would urge the Department of Justice to listen—this is not a partisan call to the concerns being expressed by both Republicans and 

Democrats of both the House and Senate Judiciary Committees. 

Obviously, on this Committee, and I have been on it for nearly 

a quarter of a century, we try to work with whatever administration there is and to try to get things cooperatively. We also have 

subpoena power. Cooperation is always more satisfactory to everybody. Subpoena power is always there. 

Senator Thurmond has submitted a statement and it will be included in the record. 

[The prepared statement of Senator Thurmond appears as a submission for the record.] 

Chairman LEAHY. We also have a FISC opinion, of May 17, 2002; 

a letter from myself, Senator Grassley, and Senator Specter to the 

FISC; and a chart that we will include in the record at this point. 

Thank you, gentlemen, for taking the time. 

[Whereupon, at 12:22 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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