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36–642 PDF 2007

S. HRG. 110–193

RESPONDING TO THE INSPECTOR GENERAL’S

FINDINGS OF IMPROPER USE OF NATIONAL

SECURITY LETTERS BY THE FBI

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 11, 2007

Serial No. J–110–27

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 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Chief Counsel 

AJIT PAI, Republican Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1

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

statement .............................................................................................................. 36

WITNESSES 

Barr, Bob, former Member of Congress, and Chairman, Patriots to Restore 

Checks and Balances, Atlanta, Georgia ............................................................. 3

Christian, George, Executive Director, American Library Association, Library 

Connection, Inc., Windsor, Connecticut ............................................................. 5

Spaulding, Suzanne E., Principal, Bingham Consulting Group, and of Counsel, Bingham McCutchen LLP, Washington, D.C. ............................................. 9

Swire, Peter P., C. William O’Neill Professor of Law, Moritz College of Law, 

Ohio State University, and Senior Fellow, Center for American Progress, 

Washington, D.C. ................................................................................................. 7

SUBMISSIONS FOR THE RECORD 

Barr, Bob, former Member of Congress, and Chairman, Patriots to Restore 

Checks and Balances, Atlanta, Georgia, statement .......................................... 21

Christian, George, Executive Director, American Library Association, Library 

Connection, Inc., Windsor, Connecticut, statement .......................................... 26

Spaulding, Suzanne E., Principal, Bingham Consulting Group, and of Counsel, Bingham McCutchen LLP, Washington, D.C., statement ......................... 39

Swire, Peter P., C. William O’Neill Professor of Law, Moritz College of Law, 

Ohio State University, and Senior Fellow, Center for American Progress, 

Washington, D.C., statement .............................................................................. 48

(1)

RESPONDING TO THE INSPECTOR GENERAL’S 

FINDINGS OF IMPROPER USE OF NATIONAL 

SECURITY LETTERS BY THE FBI 

WEDNESDAY, APRIL 11, 2007

U.S. SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 3 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

Chairman of the Subcommittee, presiding. 

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

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I will call the Committee to order. Good 

afternoon. Welcome to this hearing of the Constitution Subcommittee entitled ‘‘Responding to the Inspector General’s Findings 

of Improper Use of National Security Letters by the FBI.’’

We are honored to have with us this afternoon a distinguished 

panel of witnesses to share their views on this very important and 

timely issue. Let me start by making a few opening remarks, and 

if a member of the minority comes, we will certainly take an opening statement there, and then we will go to our witnesses. 

One month ago, the Inspector General of the Justice Department 

issued the results of a Congressionally mandated audit, an audit 

that examined the FBI’s implementation of its dramatically expanded authority under the USA PATRIOT Act to issue National 

Security Letters, or NSLs. The Inspector General found, as he put 

it, ‘‘widespread and serious misuse of the FBI’s National Security 

Letter authorities. In many instances the FBI’s misuse of National 

Security Letters violated NSL statutes, Attorney General guidelines, or the FBI’s own internal policies.’’

The Inspector General’s findings are of grave concern to me and 

this Committee. Chairman Leahy has called hearings in recent 

weeks to hear from the Inspector General himself, who described 

his conclusions in detail, and also from the FBI Director, who 

talked about some steps the FBI is planning to take in response 

to the report. 

I appreciate that the FBI agrees with the IG’s conclusions and 

recognizes that it needs to change the way it does business when 

it comes to NSLs. But in my view, simply leaving it to the FBI to 

fix this problem is not enough. Unfortunately, the FBI’s apparently 

lax attitude and in some cases grave misuse of these potentially 

2

very intrusive authorities is attributable in no small part to the 

USA PATRIOT Act. That flawed legislation greatly expanded the 

NSL authorities, essentially granting the FBI a blank check to obtain some very sensitive records about Americans, including people 

not under any suspicion of wrongdoing, without judicial approval. 

Congress gave the FBI very few rules to follow and, therefore, 

Congress has to share some responsibility for the FBI’s troubling 

implementation of these broad authorities. This Inspector General 

report proves that ‘‘trust us’’ does not cut it when it comes to the 

Government’s power to obtain Americans’ sensitive business 

records without a court order and without any suspicion that they 

are tied to terrorism or espionage. It was a significant mistake for 

Congress to grant the Government broad authorities and just keep 

its fingers crossed that they would not be misused. 

Congress has the responsibility to put appropriate limits on Government authorities—limits that allow agents to actively pursue 

criminals and terrorists, but also that protect the privacy of innocent Americans. And we did not do that with regard to the NSL 

authorities. Had it not been for the independent audit conducted 

carefully and thoughtfully by the Inspector General’s office, Congress and the American public might never have known how the 

NSL authorities were being abused by the FBI. The NSL authorities operate in secret. The Justice Department’s classified reporting 

on the use of NSLs was admittedly inaccurate. And when during 

the reauthorization process Congress asked questions about how 

these authorities were being used, we got nothing but empty assurances and platitudes that we now know were mistaken. 

Congress needs to exercise extensive and searching oversight of 

those powers, but oversight alone is not enough. Congress must 

also take corrective action. The Inspector General report has shown 

both that the executive branch cannot be trusted to exercise those 

powers without oversight and that current statutory safeguards are 

inadequate. 

Today we will hear from experts about steps that Congress 

should take to respond to the IG’s report. How should we change 

the law to make sure these kinds of abuses never occur again? Today’s witnesses come at the issue from an array of perspectives, 

and I look forward to their ideas and insights. 

We will also hear from an individual who we should have heard 

from when we were considering reauthorization of the PATRIOT 

Act in 2005: one of the Connecticut librarians who received a National Security Letter and challenged it in court. George Christian 

wanted to be heard in Congress in 2005, but was prevented from 

speaking out because of the blanket gag order imposed on all NSL 

recipients. He has now been released from the gag order, and I am 

very pleased that he is here with us today. 

We will now turn to our panel of witnesses. We will proceed from 

left to right, and I would ask the witnesses to limit their oral testimony to 5 minutes. Your complete statements will be included in 

the record. Will the witnesses please stand and raise your right 

hands to be sworn. 

Do you swear or affirm that the testimony that you are about to 

give before the Committee will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

3

Mr. BARR. I do. 

Mr. CHRISTIAN. I do. 

Mr. SWIRE. I do. 

Ms. SPAULDING. I do. 

Chairman FEINGOLD. Thank you and you may be seated. 

Our first witness, I am pleased to say, will be the Honorable Bob 

Barr, who is no stranger to this Committee. He served four terms 

in the House of Representatives where he was a member of the 

House Judiciary Committee. Mr. Barr is the CEO of Liberty Strategies LLC and Chair of Patriots to Restore Checks and Balances, an 

alliance of conservative and progressive organizations committed to 

protecting the Constitution. New York Times columnist Bill Safire 

has called him ‘‘Mr. Privacy.’’ Mr. Barr has a wealth of experience 

relevant to today’s hearing. He has served as U.S. Attorney for the 

Northern District of Georgia and was an official in the CIA. 

Mr. Barr, thank you for making the time to be here today, and 

you may proceed. 

STATEMENT OF BOB BARR, FORMER MEMBER OF CONGRESS, 

AND CHAIRMAN, PATRIOTS TO RESTORE CHECKS AND BALANCES, ATLANTA, GEORGIA 

Mr. BARR. Senator, Mr. Chairman, it is a tremendous honor as 

always to appear at a hearing before you. It is a special honor and 

great pleasure to appear before you not just as Senator Feingold 

but as Chairman Feingold of this very, very important Committee. 

I very much appreciate the honor extended to me of being invited 

to appear here today, especially in the company of such a very distinguished panel, as you have already noted. And I look forward to 

hearing their testimony and learning from it, as I am sure you do. 

I would like to also offer a very special word of thanks, Senator, 

to your staff for the outstanding work, not just in preparation for 

this hearing; but every other time we have had a hearing or called 

on them, they are absolutely tremendous in terms of providing support and assistance, answering questions, and working out the logistics. And I very much appreciate that. 

The report to which this hearing today is concerned, the IG Report, really is nothing short of a constitutional wake-up call for this 

country, Senator, as I think you certainly more than perhaps any 

of your other colleagues realize, having had, I suspect, many of the 

concerns reflected in this report foremost in your mind before probably many of your other colleagues in your prescient vote against 

the USA PATRIOT Act back in 2001. So I suspect that as with 

yourself and with myself and many others, the abuses that are 

chronicled in the IG Report come as, unfortunately, no surprise. 

I think it is important also, Mr. Chairman, to recognize that the 

remedies for the problems chronicled in the IG Report cannot, absolutely cannot, be remedied by simply tweaking the regulations, 

tweaking the procedures, issuing new guidelines, having another 

training session for FBI officials. The problems that we see chronicled in the IG Report and its sister report, the report on the Section 215 abuses, reflect and derive from the fundamental nature of 

the unaccountability built into the powers expanded and granted in 

the USA PATRIOT Act. Those powers were granted and expanded 

by statute, and the only way to assure ourselves or really to afford 

4

ourselves any assurance at all that these problems can be remedied 

has to be by statute. And if we look at the statute and the statutory remedies—and in my written remarks, which we have submitted, I identified a number of specific statutory measures that we 

believe, I believe, and many others believe need to be addressed. 

Most importantly, a meaningful standard for the issuance of National Security Letters based on more than simply happenstance 

that a U.S. person or another person protected under the Fourth 

Amendment to the Bill of Rights, for example, finds himself or herself all of a sudden a part of a database based on an NSL that was 

issued on absolutely nothing more than they happen to be in a certain place at a certain time. Or perhaps they were not even in that 

certain place at a certain time, but their records may have something in somebody’s mind to do with a terrorist, a suspected terrorist, or even a suspected associate of a terrorist. And even after 

the National Security Letter is issued, even after the data is accumulated, oftentimes, as the IG Report indicates, it just sort of sits 

somewhere or goes into some database. Tens of thousands of people 

have access to it. Foreign governments and foreign entities may 

have access to it. And even if, in fact, information on a particular 

individual, such as a U.S. person, that we now know that the majority, strangely—perhaps not so strange—of these National Security Letters are being issued regarding U.S. persons not foreign 

persons. The U.S. person finds himself or herself—basically, unless 

statutory limitations are placed on the retention of the information, 

they are in there for the duration. There is no way that they would 

know or have any way, or even the Congress would have any way 

of extracting information on a person who was roped up in one of 

these National Security Letter investigations and the information 

or the very thin reason for putting their name in there in the first 

place turned out to be not so. 

So we need to address, I believe the Congress needs to address 

meaningful standards for issuance: constitutional nondisclosure orders, court review, mandatory court review, verifiable reporting regimes, limitations on data retention, and limitations on the data 

sharing. 

Even if all of these measures, and others that I know the Senator 

is considering, are enacted by statute, the National Security Letters will remain a very robust mechanism for the FBI and, indeed, 

indirectly other Federal agencies to employ. The sky is not going 

to fall if these measures are put in place. While some have characterized the National Security Letter expanded powers as the ‘‘bread 

and butter’’ of the FBI’s antiterrorism and counterintelligence effort, the fact of the matter is that that bread and that butter still 

needs to be utilized, spread, and eaten within the confines of the 

Constitution. It still has to meet constitutional muster. And we believe it has to be done by statute. 

Mr. Chairman, we appreciate, I appreciate very much your holding this hearing, which I suspect will be one of a series that you 

will be holding on these issues and stand ready either today or in 

the future to answer any questions that you might have. 

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

the record.] 

5

Chairman FEINGOLD. Thank you very much, Representative. I 

appreciate your comments and certainly the message very much. 

Thank you. 

Our next witness will be George Christian. Mr. Christian is Executive Director of Library Connection, Inc., a consortium of 27 

Connecticut libraries. Library Connection received an NSL from 

the FBI in 2005 and brought a court challenge against the constitutionality of the statute. But throughout the litigation and throughout Congress’ consideration of the reauthorization of the PATRIOT 

Act, Mr. Christian and his colleagues were subject to a strict gag 

order and could not reveal that they had received an NSL. 

The Government finally fully lifted the gag on Library Connection last summer after the reauthorization process was over, and 

Mr. Christian is now free to discuss his experience. He received his 

MBA and Master’s degree from the University of Bridgeport and 

has also worked at JP Morgan. 

Mr. Christian, I look forward to your testimony and you may proceed. 

STATEMENT OF GEORGE CHRISTIAN, EXECUTIVE DIRECTOR, 

LIBRARY CONNECTION, INC., WINDSOR, CONNECTICUT 

Mr. CHRISTIAN. Thank you Mr. Chairman. Thank you for this opportunity to share my experience as an NSL recipient. My three 

colleagues, who were equally involved, and I very much wanted to 

do this, as you have said, while Congress was considering the renewal of the PATRIOT Act. But we were prevented from doing so 

by a gag order that was later ruled unconstitutional. We are the 

only recipients of a National Security Letter that can legally discuss this experience. The recipients of several hundred thousand 

other NSLs must carry the secret of their experiences with them 

to their graves. 

As librarians, we share a deep commitment to patron confidentiality that assures that libraries are places of free inquiry. Connecticut is one of 48 States that have laws protecting the privacy 

of library patrons and charging librarians with the responsibility of 

guarding that privacy. However, we also fully accept our civic obligation to cooperate with law enforcement agencies when they can 

provide warrants or other court orders that indicate that an independent judiciary has approved their inquiry. 

In July 2005, we were served with a 2-month-old NSL requesting 

all of the subscriber information of any person or entity related to 

a specific IP address for a 45-minute period back in February. 

Since there was no way of determining who was using the computers in the library 5 months after the fact, this meant that our 

NSL was a request for the information we had on all of the patrons 

at that library. We were very disturbed by the sweeping nature of 

this request, by the fact that it showed no sign of judicial review, 

and by the fact that it came with a perpetual gag. We were shocked 

to learn that the NSL statute was part of the PATRIOT Act, because Attorneys General Ashcroft and Gonzales had both declared 

that the PATRIOT Act had not been and would be used against libraries. 

When we learned that a district court in New York had judged 

the NSL statute to be unconstitutional, we decided to contest comVerDate 0ct 09 2002 12:49 Nov 30, 2007 Jkt 036642 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36642.TXT SJUD1 PsN: CMORC
6

pliance with our letter. Fortunately, the American Civil Liberties 

Union agreed to represent us. Our gag was removed by a Federal 

district court, but the decision was appealed by the Justice Department. Meanwhile, because the Government failed to redact all our 

names, two of our names appeared in many articles in the New 

York Times, the Washington Post, and other papers. This created 

many professional and personal difficulties for us. However, in appellate court, the Government maintained that we should remain 

gagged because no one in Connecticut reads the New York Times. 

We also sought immediate relief from the gag order in order to 

be able to tell Congress that the NSL statute was being used 

against libraries and library patrons while Congress was debating 

the PATRIOT Act. And although the Government failed to redact 

our names, they did redact our claim that 48 States had statutes 

protecting the privacy of library patrons. We could not understand 

how these laws threatened national security, but we did note that 

Attorney General Gonzales claimed to Congress that there was no 

statutory justification for the concept of privacy. 

On March 9, 2006, President Bush signed into law the revised 

PATRIOT Act. A few weeks after that, the Justice Department decided that we no longer needed to be gagged. And a few weeks beyond that, they declared that they no longer needed the information sought by the NSL they had served us with. We ended up 

being silenced until after the PATRIOT Act was renewed, and by 

dropping our case altogether, the Government made sure that the 

NSL statute would be removed from the threat of court review. 

Based on our experience, we urge Congress to require judicial reviews of NSL requests, especially in libraries and bookstores, 

where a higher First Amendment standard of review should be considered. We believe that you can make changes to the law that do 

not compromise law enforcement’s abilities to pursue terrorists, yet 

maintain the civil liberties guaranteed by the United States Constitution. Terrorists win when fear of them induces us to destroy 

the rights that make us free. 

Again, I thank you for this opportunity to testify, and I ask that 

you please submit my full written testimony to the record. 

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

Chairman FEINGOLD. Well, thank you for that useful testimony. 

It is very important. It would have been useful a while back, as you 

well indicated, but it is certainly going to help us as we, I hope, 

try to reform the law, as Representative Barr suggested we need 

to do. Thank you. 

Our next witness will be Professor Peter Swire, an expert in the 

field of privacy law. Professor Swire currently teaches law at Ohio 

State University and is a senior fellow at the Center for American 

Progress. From 1999 to 2001, he served as chief counsel for privacy 

in the Executive Office of the President. Professor Swire has also 

taught law at the University of Virginia and George Washington 

University and has spent time in private practice. He graduated 

from Yale School. 

Professor Swire, thank you for being here today, and I want you 

to know I rooted for Ohio State, even though we are still licking 

our wounds from not making it farther in the tournament. 

7

Mr. SWIRE. Well, the Badgers should have made it much further, 

Senator. 

Chairman FEINGOLD. Thank you. That is a good answer. 

[Laughter.] 

Chairman FEINGOLD. You may proceed. 

STATEMENT OF PETER P. SWIRE, C. WILLIAM O’NEILL PROFESSOR OF LAW, MORITZ COLLEGE OF LAW, OHIO STATE 

UNIVERSITY, AND SENIOR FELLOW, CENTER FOR AMERICAN 

PROGRESS, WASHINGTON, D.C. 

Mr. SWIRE. Thank you very much, and, Mr. Chairman, thank you 

for the invitation to testify here today. 

The biggest point in my written testimony is that the Congress 

has never agreed to anything like the program that the Inspector 

General’s report has revealed. Here is one way to see how different 

the public understanding has been from what, in fact, was going 

on. 

In March 2003, the Washington Post ran a front-page story, and 

here is a quote from it: ‘‘The FBI, for example, has issued scores 

of National Security Letters that require businesses to turn over 

electronic records about finances, telephone calls, e-mail, and other 

personal information, according to officials and documents.’’

Scores of letters—that was the best we knew in the Washington 

Post and in public in 2003. The actual number, we now find out, 

was over 39,000 in 2003 alone. That is quite a difference. That 

could even be considered misleading, perhaps, if officials were saying scores of times, when it is 39,000. 

So there is a difference between what Congress thought and the 

American people thought was going on and what we know now was 

going on. 

In my written testimony, I offer four main conclusions. 

First, the PATRIOT Act fundamentally changed the nature of 

NSLs in ways that create unprecedented legal powers in the executive branch and pose serious risk to privacy and civil liberties. 

Second, as I have said, Congress has never agreed to anything 

like the current scale and scope of NSLs. 

Third, the gag rule under NSLs is an especially serious departure from good law and past precedent. 

And, fourth, legislative change is needed, such as the SAFE Act 

or H.R. 1739, and a group of public interest organizations today 

has a statement, a joint statement, that suggests ways to go on legislation. 

And so in my testimony I suggest a new meaning for the acronym of NSLs. I think we should call it ‘‘Never seen the like.’’ This 

is really out of bounds from the way our checks and balances, our 

three branches operate. 

The Inspector General’s recent report has put NSLs on the front 

page and prompted today’s hearing, but as given in more detail in 

my written testimony, this has been an area clouded by secrecy 

and in many cases by misleading statements about what is going 

on, and now we have pulled back the veil just a little bit. 

I think then that the legislative discussion right now should be 

seen as one where there is no stare decisis, there is no precedent 

that the current law is really the right way to go. For the Judiciary 

8

Committee, we can say this is sort of like an issue that has never 

been argued in previous cases. Now we are briefing the issue. We 

have got this IG’s report. We are seeing a great big mess. We are 

seeing that secrecy with no one looking over the shoulders predictably leads to the mess, and it is time to write a statute that is 

based on what we know. 

So this is really a greenfields project how to write about NSLs. 

There should be no presumption that the current law, where the 

FBI has now said they got an F in implementing it, there is no presumption that you award this F with basically the status quo. 

In my written testimony, I emphasize the problems with the gag 

rules that we have and how far they depart from the way we do 

law ordinarily in the United States of America. There has long 

been a specialized rule for wiretaps, that it stay secret, and that 

is because it really undermines the effectiveness of a wiretap to say 

that so-and-so is being wiretapped. They just stop using the phone. 

But for record searches, the history of the United States has not 

been that it is a state secret and you cannot tell that you have had 

your records searched. Just like the landlord who gets asked about 

a tenant. There is no gag order on the landlord. The landlord or 

the record holder cannot tip off the criminal. That is obstruction of 

justice, and that is how we handle it. If you tip off the bad guys, 

then you are a bad guy yourself. But, ordinarily, we start with free 

speech. We start with the idea that librarians can say, hey, we 

have got this problem. We go to Congress; we go to the press. We 

say there is overreaching by Government. And that is the way that 

the law is written. 

I wrote a long and probably excessively boring law review article 

in 2004 talking about gag rules and NSLs and saying why it is just 

out of bounds with precedent. And I do not think that has been addressed well by the administration. I think it is a big problem. And 

so I think the presumption of gag rules, the idea that we draft our 

librarians and our pawnbrokers and our travel agents into lifelong 

secrecy—and that is just what we have to do because that what 

America is now—I think that is just a bizarre approach. It is bad 

law, and there are other ways to address the problems of preserving secrets. 

In my testimony, I make various suggestions for legislative 

points, and some of those issues might come back in the question 

session. I would like to highlight one idea that has not been mentioned previously, at least not that I have seen. I suggest that 

issuing NSLs could be accompanied in the future by a statement 

of rights and responsibilities. You get the request for records, and 

then the person receiving it—a librarian, in our instance, who has 

never heard of this thing before—would say, You have a right to 

consult an attorney, you have a right to appeal this to court, you 

have an obligation not to tip off the target of the investigation—

a balanced and legal set of authorities. That way the people who 

get it know what the rules are, and the people who are handing 

it out, the FBI, will see what their rules are. And this way, this 

sort of simple statement can lead to a much better chance at compliance with the law instead of the widespread violations we saw 

in the report. 

9

So, with that, I thank you for the invitation to participate today. 

I look forward to helping your staff in answering questions today 

in any way I can. 

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

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Swire, for that very clear 

testimony. Thank you. 

Our next witness will be Suzanne Spaulding. Ms. Spaulding’s expertise on national security issues comes from 20 years of experience in Congress and the executive branch. She has worked on 

both the House and Senate Intelligence Committees and has served 

as legislative director and senior counsel to Senator Specter. She 

has served as the Executive Director of two different Congressionally mandated commission focused on terrorism and weapons of 

mass destruction and has worked at the CIA. She is currently a 

principal at Bingham Consulting Group and is the immediate past 

Chair of the American Bar Association’s Standing Committee on 

Law and National Security. 

Ms. Spaulding, thank you for taking the time to be here, and you 

may proceed. 

STATEMENT OF SUZANNE SPAULDING, PRINCIPAL, BINGHAM 

CONSULTING GROUP, OF COUNSEL, BINGHAM MCCUTCHEN 

LLP, WASHINGTON, D.C. 

Ms. SPAULDING. Chairman Feingold, thank you for inviting me to 

participate in today’s hearing. I would like to begin my testimony 

today by emphasizing the point you made in the introduction, 

which is that I have spent 20 years working on national security 

issues for the U.S. Government, starting in 1984 as senior counsel 

to Arlen Specter, and I developed over those two decades a strong 

sense of the seriousness of the national security challenge that we 

face and a deep respect for the men and women in our national security agencies, including the FBI, who work so hard to keep us 

safe. 

We owe it to those professionals to ensure that they have the 

tools they need to do their job. Equally important, they deserve 

clear rules and careful oversight. Unfortunately, it appears both 

were lacking in the implementation of the National Security Letter 

authorities. 

As important as it is to examine the lessons learned from the IG 

report, however, I would urge Congress not to stop there, but to 

take a broader approach. The various authorities for gathering information inside the United States, including the authorities in the 

Foreign Intelligence Surveillance Act, or FISA, should be considered and understood in relation to each other, not in isolation. 

There are press reports today that the Director of National Intelligence is going to be seeking to expand the Government’s surveillance authority by liberalizing FISA provisions on eavesdropping 

and on access to records held by phone companies and ISPs. 

Changes to FISA may indeed be appropriate, but I would urge Congress not to act without first getting all the facts, and not to act 

on one domestic intelligence collection tool in isolation. In fact, I 

would urge Congress to undertake a comprehensive review of all 

domestic intelligence collection—not just by FBI but also by other 

10

national security agencies engaged in domestic intelligence collection, and that includes the Central Intelligence Agency, the Department of Defense, the National Security Agency, and others. 

A joint inquiry or task force could be established by the Senate 

leadership with representation from the most relevant committees 

to carefully examine the nature of the threat inside the United 

States and the most effective strategies for countering it. Then 

Congress and the American public can consider whether we have 

the appropriate institutional and legal framework for implementing 

those strategies, with adequate safeguards and appropriate oversight. This would include a review of FISA, National Security Letters, the PATRIOT Act, the National Security Act of 1947, various 

Executive orders, et cetera. 

In the meantime, as this Committee focuses on National Security 

Letters, I would urge a broader examination in that context as 

well, not just on the specific problems in the report but on National 

Security Letter authorities generally, especially the changes which 

were included in the PATRIOT Act. 

The first of these changes was the change to the standard for 

issuing National Security Letters, which, as you know, moved from 

the need to show specific facts providing a reason to believe that 

the records were those of a foreign power or an agent of a foreign 

power, to the far broader standard that the records be merely relevant to an investigation to protect against international terrorism. 

As the IG noted, this allows the Government to get information 

about individuals who are not themselves the subject of an investigation, ‘‘parties two or three steps removed from their subject, 

without determining if these contacts reveal suspicious connections.’’

For example, Congress should examine the facts surrounding the 

nine NSLs in one investigation that were, according to the IG report, used to obtain information regarding over 11,000 different 

phone numbers. NSLs should not become a mechanism for gathering vast amounts of information about individuals with no known 

connections to international terrorism for purposes of data mining. 

Some clear link to a known or suspected terrorist should be required. 

At least as troubling is the provision in the PATRIOT Act that 

allows the Government to demand full credit reports and all other 

information that a credit bureau has on individuals. This intrusive 

authority was actually granted not just to the FBI, but to any 

agency authorized to conduct investigations or even engage in intelligence analysis regarding international terrorism. This again 

would include CIA, NSA, DOD, and a host of other agencies. 

Given the problems uncovered in the FBI’s use of NSL authorities, Congress needs to thoroughly examine how this authority is 

being used by these additional agencies and seriously consider restricting this authority to the FBI only, as with other NSL authorities. 

The PATRIOT Act also moved the authority to approve NSLs 

from senior officials in Washington down to all 56 special agents 

in charge of the various field offices throughout the country. Thus, 

the legal review comes from attorneys in those offices who work for 

those special agents in charge, and the Inspector General found 

11

that this chain of command has significantly undermined the independence of those lawyers and led some to believe that they cannot 

challenge the legal basis for the NSLs or their connection to investigations. 

In order to ensure more independent and consistent oversight of 

the NSL process, Congress should consider transferring the FBI’s 

authority to issue NSLs to DOJ attorneys in the National Security 

Division. This is a suggestion made by David Kris, who was the Associate Deputy Attorney General and Director of the Executive Office for National Security Issues at the Department of Justice from 

2000 to 2003. He points out that in the criminal context, DOJ attorneys are involved with all of the most effective investigative 

techniques, including the issuance of subpoenas, searches, surveillance, and certain undercover operations. But DOJ has not had this 

close working relationship with the FBI intelligence investigators 

because of the legacy of ‘‘the wall.’’ And yet in this area, careful 

oversight from DOJ attorneys may be most important. 

In closing, Mr. Chairman, I want to emphasize that the FBI and 

DOJ are to be commended for having welcomed this report as an 

important wake-up call and initiating changes to address some of 

the problems identified, particularly with regard to the ‘‘exigent circumstances’’ letters. Other areas requiring clearer guidance, however, include data retention and the need to tag NSL information 

as it moves through the system and makes its way into intelligence 

products and criminal proceedings. 

Mr. Chairman, I want to commend the Committee for holding 

this hearing and again urge that the lessons learned on NSLs lead 

to a broader examination of intelligence collection inside the United 

States. Nearly 6 years after 9/11, it is time to more carefully craft 

an effective and sustainable framework for this long-term challenge, rather than relying on a patchwork built on fear and in 

haste. We owe it to the men and women who undertake this vital 

and sensitive work on our behalf to make sure we get it right. 

Thank you. 

[The prepared statement of Ms. Spaulding appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Ms. Spaulding. I welcome your 

specific suggestion on NSLs and your very powerful point about the 

need to take a broader look. I also serve on the Intelligence Committee, and having experienced these different revelations, both 

here and there, and thinking about how these all interrelated, it 

is very complex. But it is just like the broader issue of fighting terrorism after 9/11. We can either choose to look at the whole picture 

and understand it or not. And your testimony is about getting the 

whole picture before us and making decisions on that basis. So I 

thank you, and all of you. This is exactly the kind of record we 

need. And although it may seem quiet in this room and not a lot 

of Senators here, these kinds of hearings are extremely valuable as 

we go down the road to be able to have authorities like you on the 

record saying this. 

I will turn to questions. Before I begin, I would like to place the 

following items in the record of the hearing: a statement from Lisa 

Graves, Deputy Director of the Center for National Security Studies; and a statement from James Dempsey, Policy Director of the 

12

Center for Democracy and Technology. Without objection, they will 

be included in the record. 

Mr. Christian, again, thank you for being here. I think we can 

all agree that libraries should not be safe havens for criminals or 

terrorists, but also that the privacy of library records should be 

carefully protected. There has been some confusion over what types 

of library records the FBI can request under the NSL statute, and 

the NSL that you received was hardly a model of clarity. It admittedly covered only a specific and limited time period, but it was not 

at all clear exactly what the FBI was asking for. And you received 

it a full 5 months after the date in question. 

For you to fully comply with the FBI’s National Security Letter 

that you received in July 2006, as you understood it, exactly what 

records do you believe you would have had to turn over? 

Mr. CHRISTIAN. At a minimum, Senator, we would have had to 

turn over the entire patron database for that particular library and 

perhaps some of the circulation records. 

You are quite correct to say that we have learned through experience the NSL statute is really only about electronic records. However, these days in libraries, all records are electronic. And libraries are working to provide patrons the maximum use of the electronic records that are available. Not only is the card catalogue not 

a card catalogue, it is an electronic catalogue. But libraries are 

working to link searches in the catalogue with searches in electronic databases and with searches on the Internet, all automatically. It is called ‘‘federated searching.’’

So if I were looking for something in a card catalogue, I would 

see what my library had on the shelf. I would also see what resources were available from electronic databases that the library 

subscribed to. And I would see appropriate websites to my query 

on the Internet. So that is all one search. If you are turning over 

to the FBI what the patron was looking for, how can you divide 

that up? 

The address that the FBI was looking for led to a router at the 

building. Routers use address translation to mask the identity of 

the computers behind them to prevent hacking or to make hacking 

more difficult. 

Every time a computer is turned on, the router randomly assigns 

it a different address. Five months after the fact, we would have 

had to tell the FBI, well, it is one of all of the computers in the 

library, an there is no record of which patron was using what. So 

I guess they would have wanted to know about all the patrons. And 

if they were looking for electronic records, they may have wanted 

to know everything that we have, which includes the circulation 

records. 

Chairman FEINGOLD. Thank you so much. 

Professor Swire, you have studied these statutes for a long time. 

Did it surprise you to learn that the FBI has issued an NSL to a 

library entity and that the NSL was worded in this confusing way? 

Mr. SWIRE. I think in the last several years, libraries have become famous in many ways in the PATRIOT Act debates partly because librarians have been so courageous about speaking up about 

these issues and have been very organized and understand what is 

at stake. And what we have heard here is essentially a sort of hayVerDate 0ct 09 2002 12:49 Nov 30, 2007 Jkt 036642 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36642.TXT SJUD1 PsN: CMORC
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stack problem where to be able to figure out who the one person 

is, you would have to send the whole haystack over to the FBI. And 

that is because we do not want to have the far more intrusive rules 

that would require, for instance, every time somebody goes to the 

library to register what sites they are going to or register exactly 

to that computer, that would be a level of sort of intrusion and required surveillance that would be far worse. 

So it is not a surprise that libraries have been targeted, and it 

is not a surprise that you would end up with this haystack and 

very little usable information. 

Chairman FEINGOLD. Thank you, Professor. 

Mr. Barr, a major concern that you raise in your testimony is the 

potential breadth of the relevance standard for the NSLs. When I 

pressed FBI Director Mueller on this issue a couple weeks ago, he 

basically acknowledged that the relevance standard would permit 

the FBI to use NSLs to obtain some records of innocent Americans 

that it probably should not. 

Do you agree that the relevance standard would permit the FBI 

to obtain the records of individuals two or three times removed 

from a suspect? 

Mr. BARR. The relevance standard, I think common sense tells 

us, as well as those of us such as yourself, Mr. Chairman, and 

members of this panel, including myself, with experience in Government, is an absolutely meaningless standard. It has no relevance to a standard. 

Simply saying that the FBI can use a National Security Letter 

to obtain information on any person or persons that they want so 

long as it is relevant to an investigation that they have determined 

is an appropriate one, without any review, without any accountability, without any objective standard, has rendered it meaningless. 

Therefore, as we saw in the IG report, obtaining vast amounts 

of data on individuals two or three or perhaps even more times removed, simply because an individual perhaps uses the same business establishment as a suspected or known terrorist or because an 

individual, a U.S. person, goes to the same medical facility as a 

suspected or known terrorist, the hypothetical—they are not really 

hypotheticals. The examples go on and on. 

So there has to be a standard, and that standard needs to be 

based on a reasonable and articulable suspicion that there is suspicious activity that that person on whom the National Security 

Letter is directed to obtain information on that person above and 

beyond simply that they might have been in the same place at the 

same time or in the same place at a different time than the true 

target. That is why we see these vast amounts of data similar to 

what occurred as we found out after the crumbling of the Soviet 

bloc, STASI, for example, the East German intelligence service, 

once the government there fell, and we were able to gain access to 

vast warehouses of information, including physical evidence or suspected physical evidence on virtually everybody that lived in a certain area or that worked in a certain industry, not because they 

were suspected of having done anything in particular, but perhaps 

at some point in the future they might be. 

14

That is what these NSLs are being used for, and the relevance 

standard is the vehicle that allows them to do that. 

Chairman FEINGOLD. Thank you. 

Ms. Spaulding, I think I explicitly heard you say that you 

thought this could go to people two or three times removed from 

a suspect, and I take it, Professor Swire, you would agree with that 

as well. Correct? You both would agree with that; is that right? 

Ms. SPAULDING. And, in fact, the Inspector General said as much 

in his report. 

Chairman FEINGOLD. Professor, do you agree? 

Mr. SWIRE. Yes, and one idea about relevance, in the first year 

of law school people learn about the Federal Rules of Civil Procedure and discovery as to everything that is relevant to a case. And 

we know that that is just about as wide open as could be, and so 

everybody on Judiciary would sort of know that. 

Ms. SPAULDING. The other point to be made there, Senator, is 

that it is relevant to what. It is not even relevant to an investigation into terrorist activities. It is relevant to an investigation to 

protect against international terrorism, which I think, you know, 

potentially is wide open. 

Chairman FEINGOLD. That sort of relates to my next question. 

Proponents of the relevance standard often point to grand jury subpoenas and argue the standard should be the same for both NSLs 

and the grand jury subpoenas. For any of you, is that an apt analogy? Ms. Spaulding? 

Ms. SPAULDING. I think it is not for a number of reasons, but one 

of the most important I think often gets lost in this argument that 

if we have this authority to go after ordinary criminals, we should 

have the exact same authority to go after international terrorists 

in an intelligence investigation. 

What is lost is that intelligence investigations are looking for 

suspicious activity. When the grand jury subpoena has to be relevant to a criminal investigation, what people have to remember is 

that crimes, pursuant to our Constitution, have to be clearly defined so that every American knows which side of that line they 

are on and you do not accidentally wander into criminal territory 

where you would be subject to Government surveillance, et cetera. 

In the intelligence context, when you now simply have to be relevant to an investigation to protect against international terrorism 

and you are looking for suspicious activity, we have not defined 

that. And how Americans can know whether they are on the right 

or wrong side of that suspicious activity line is a real challenge and 

it makes a significant difference between relevant to a criminal investigation and relevant to an intelligence investigation. 

Chairman FEINGOLD. I recall this being one of the hardest parts 

of trying to persuade people that there needed to be changes in the 

PATRIOT Act, because the administration and others would always 

say, well, you know, in Medicaid fraud a person does not have 

these rights, why should a terrorist? You know, trying to get people 

to be able to hear the complexity of this but still the validity of 

these differences was really tough. 

Professor? 

15

Mr. SWIRE. So there are at least three differences right off the 

bat, in addition to crime versus everything that is national security 

related. 

In a grand jury situation, when an FBI agent thinks there is a 

lead, first he or she has to convince the prosecutor: Look, Prosecutor, this is actually true. Then the prosecutor goes to the grand 

jury. 

Second, the prosecutor has to convince the grand jury. If it is embarrassing, if it is a fishing expedition, if it is silly, the citizens are 

there, the prosecutor simply will not do it. 

But the third and most important thing is there is no gag order. 

Right? So what happens is if I am a witness called for a grand jury, 

I am allowed to walk out afterwards and say here were the ten 

questions, here is what I said. But under NSLs, I am not. I am 

under the lifelong ban, and that changes everything. And one of 

the checks against abuse is if somebody is asking a question—I can 

go to the press, I can go to the Congress. If the FDA overreaches 

in an administrative subpoena, if they ask for too much from a 

drug company, you know those pharmaceutical companies will be—

in a minute complaining about it. That is what cannot happen 

under NSLs. Our checks and balances based on openness is entirely lacking. 

Chairman FEINGOLD. Professor Swire, as you point out, the NSL 

statutes have changed significantly since they were first enacted. 

NSLs are not only available at the lower threshold, but they also 

cover many more types of records. Based on the history of these 

statutory provisions, is it sensible to permit the Government to obtain what has become a vast range of records, all under the very 

same low standard, without a court order? And just to take an example, which is mentioned with the FBI Director, aren’t the contents of full credit reports far more sensitive than the name of the 

subscriber associated with a particular phone number? 

Mr. SWIRE. Well, when it comes to credit reports, the first U.S. 

Federal privacy law was the Fair Credit Reporting Act in 1970. So 

that came first. So we know credit reports are sensitive. That is 

what Congress acted on first. And then I think as Congressman 

Barr and others on the panel have said, these are the reasons we 

go to judges first because there is such a range of records and because they are held for so long and because there is no way to dispute them. And with that range of records being involved, we 

should have judges first. 

Chairman FEINGOLD. I think Mr. Barr wanted to say something 

about the grand jury analogy, if you can do that now. 

Mr. BARR. Thank you very much, Mr. Chairman. I would just 

add one additional point to the several points that my colleagues 

on the panel have noted as differences between the NSL and the 

grand jury subpoena, and that is, there is a judicial open mechanism that is available to the citizen, the U.S. person, or the recipient of a grand jury subpoena. There are established procedures 

that are known, that are provided for in law and in the Rules of 

Procedure to contest the overbreadth, for example, of a grand jury 

subpoena, a move to quash it. 

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point to a recipient of an NSL. So I would add that to the differences between the two for those who would say, well, the NSL 

is simply another form of a grand jury subpoena. 

Chairman FEINGOLD. Thank you. 

Mr. Christian, the NSL gag order had a significant effect on your 

professional and personal life and relationships. Your situation is 

very unusual in that, as you pointed out, your gag has been lifted. 

But we were recently reminded by an op-ed published in the Washington Post by the John Doe in the New York NSL lawsuit that for 

him and others the gag is permanent. 

What would it be like for you and the other plaintiffs now if you 

were still subject to the gag order and still could not explain to 

your staff and family what you were going through? 

Mr. CHRISTIAN. I think it would eventually become simply impossible. You are living at least a tacit lie with all these groups—with 

your family, with your professional colleagues, with your workers. 

My big concern, in addition to not being able to talk to librarians 

or even my staff, was that I pride myself on my integrity, and yet 

it was obvious to my entire board of directors and to the entire 

membership in our organization that I was concealing something 

that was really big. 

I did not know whether I had their full support or most of their 

support or whether there was a significant minority opinion that 

I should consider. I could not ask. I could not discuss it. I had to 

outright lie to our auditors. I am supposed to testify to the auditors 

every year whether or not Library Connection is involved in any 

major lawsuits, and I could not say, ‘‘no’’, and add, in parentheses, 

except for the fact we are suing the Attorney General. I would not 

have wanted to do that year in and year out, especially if the press 

coverage continued. At some point the auditor would look me back 

in the eye and say, ‘‘I do not believe you.’’ And then where would 

we be? It was just awful. 

On the other hand, at least I had the sympathy of people, especially my colleagues, because it was in the press: These poor people, like the John Doe in New York, they really have to keep it bottled up within themselves; it must be awful. 

Chairman FEINGOLD. Thank you. 

Professor Swire, one statutory provision that the Inspector General report highlighted, which I do not think any of us have had 

a great opportunity to pay much attention to, is the emergency authority to obtain communication records under Section 2702 of Title 

18. That is the authority that the FBI was apparently supposed to 

be invoking when it issued more than 700 illegal exigent letters. 

In light of the IG report, should Congress consider changes to 

that emergency provision? 

Mr. SWIRE. Congressman, I saw that in the IG’s report, and it 

seems like a stretch to me on first reading. I have not had a chance 

to dive deeply into that. But I think it shows a general point, which 

is there are a lot of these different statutes that fit together, as Ms. 

Spaulding and others have said, and there may be all sorts of other 

emergency authorities that someone is claiming somewhere or 

other to do things that we never dreamed of, and this is one that 

has turned up through the IG’s audit. 

17

It might be useful to find out what the list of other emergency 

exceptions is that folks are using for electronic surveillance. 

Chairman FEINGOLD. Thank you, Professor. 

Mr. Christian, again, during reauthorization of the PATRIOT 

Act, Congress for the first time explicitly provided for judicial review of the gag order that comes along with receiving an NSL, but 

it made the standard for overcoming the gag order extremely difficult to actually meet. The Government simply asserts that lifting 

the gag would harm national security. That assertion is presumptively conclusive. To overcome it, recipients must prove the assertion was made in bad faith, which would be virtually impossible to 

do. 

Having been on the receiving end of an NSL, do you think that 

is a fair standard for judicial review of the gag order? 

Mr. CHRISTIAN. Absolutely not, Senator. I think that is horrible. 

In our case, which was heard by Judge Janet Hall in Bridgeport, 

Connecticut, in the district court, when she told the Justice Department that she would consider the arguments in the case but she 

was really leaning towards lifting the gag order, their response was 

that, well, it would jeopardize their case. And she said, ‘‘Well, what 

evidence do you have that it would jeopardize your case?’’ And they 

said, ‘‘We are sorry. It is a national security secret.’’ She was able 

to say, ‘‘Well, before I was appointed to the bench, I had the highest national security clearance, so I would like to look at that evidence.’’ And she made her ruling not only on the basis of a perpetual gag order being prior restraint, but having looked to see 

whether there was any mitigating evidence that really did entail 

national security, and she ruled that there was none. But that can 

no longer happen. It would not matter that Judge Hall had the appropriate security clearance to look at the FBI’s evidence. She cannot. She just has to take their word for it. 

I think we have seen clearly enough that ‘‘take my word for it’’ 

leads to abuse, but I don’t know how this case could be argued in 

the future. Our case was plain and simple: A perpetual gag order 

is prior restraint. Technically, the gag order for NSLs in the renewed PATRIOT Act is not a perpetual gag order. It expires in a 

year and it has to be renewed. But I am quite sure that it will be 

perpetually renewed. It is a terrible change in the law. 

Chairman FEINGOLD. For any of you, are there options that Congress should be considering beyond legislation? For example, 

should we be asking the Inspector General to do any follow-up 

work in addition to the report he is doing on the use of NSLs in 

2006? Ms. Spaulding? 

Ms. SPAULDING. Well, as I indicated in my testimony, I would 

urge Congress to perhaps direct the IGs of the other national security agencies and really virtually any agency that would fit within 

that definition of a Government agency involved in either an investigation or intelligence activities or analysis of international terrorism to look at what each of those agencies is doing in terms of 

implementing their National Security Letter authority. 

These are agencies that typically are not used to dealing with 

collection of intelligence information inside the United States and 

the tremendous sensitivities that come into play in that context. 

Chairman FEINGOLD. Mr. Barr? 

18

Mr. BARR. Thank you, Mr. Chairman. The IG report, which is the 

subject or the base for our discussion here today, is not even comprehensive. It is based on a sampling that was conducted of a number of offices and only a number of files. It barely scratched the 

surface, and yet it uncovered very substantial abuses of the system. 

I think that the Congress in both its oversight capacity as well 

as in its financial or appropriations capacity needs to ensure that 

these matters are gone into in much greater detail. There clearly 

are problems there, but based on a sampling we do not know even 

today the true extent of these problems, even before we have 

reached the statutory fixes that we are recommending and that I 

know the Chairman is considering. 

Chairman FEINGOLD. Professor? 

Mr. SWIRE. Thank you, Senator. In my testimony, I talk about 

an interesting sentence from FBI testimony in the House just a 

couple weeks ago, so that was in March. And the FBI stated in that 

testimony that it had found reporting problems on the numbers of 

NSLs, that they had seriously understated the number of NSLs to 

Congress. They found out on their own before the Inspector General went in, and the quote is, ‘‘We identified deficiencies in our 

system for generating data almost 1 year ago.’’

Now, that was March 2007. President Bush signed the reauthorization in March 2006. So they flagged it to Congress, it sounds 

like, immediately after the President signed the reauthorization 

that they had miscounted this. 

Now, that is pretty interesting. And so the question is: When did 

the FBI know that it had significantly underreported to Congress 

on the number of NSLs? Apparently they flagged it in March or 

April, and so questions about what happened there seem appropriate just based on their own sworn testimony, because Congress 

was trying to rely on the FBI to decide what to do, and Congress 

might have been relying on known incorrect information. 

Chairman FEINGOLD. Mr. Christian, you were able to secure free 

legal representation to challenge the NSL that you received. What 

would you have done if you were unable to find lawyers willing to 

bring your case without charge? 

Mr. CHRISTIAN. I don’t think we would have been able to pursue 

the case very far at all. We are nonprofit corporation. We receive 

no Federal, State, county, or even grant funding. We are entirely 

supported by our 27 member libraries, and it costs about $1 million 

a year for our operations. So that tapping into our libraries for pursuing this case as far as it went—and it did go briefly to the Supreme Court—would have just been too large a burden, and justice 

should not come with a burden like that. 

Chairman FEINGOLD. Mr. Swire, how should we amend the gag 

rule for National Security Letters? And should we consider similar 

changes to the gag rule that is associated with Section 215? 

Mr. SWIRE. Yes, 215 should be changed in the same way. I actually believe that the gag order should be repealed, and can be safely, and the reason is, if I am served with—and I go into this in detail in my long and boring law review article. The reason is that 

if I am served with an NSL and then I tip off the bad guys, we 

have material-support-for-terrorism statutes, we have obstructionof-justice statutes, we have penalties that happen for that. And 

19

those are serious criminal penalties, and are criminal penalties 

that are similar to the NSL criminal penalties, except probably 

longer times, and that is the way we have handled investigations 

for the last 200 and however many years in the United States of 

America. The cops are investigating somebody, and they go knock 

on the door or ask for records, and the people who are subject to 

search can talk about it, but they are not allowed to conspire with 

the criminals or the suspects. 

So I actually think that is a complete answer, and I have not 

seen any statement back about why that is not good enough. 

Chairman FEINGOLD. Very, very helpful. 

I know Senator Durbin wanted to be here, but he is chairing his 

own hearing. I know he is interested in this. There are other members on both sides of the aisle on this Committee who have expressed interest in this, so, again, I said it before but I will repeat 

it, how valuable this testimony is today. 

We any of you like to make any quick concluding remarks at all? 

Mr. CHRISTIAN. Mr. Chairman, I would just like to echo Mr. 

Swire’s remark. I am not an expert in law the way he is, but as 

the victim of a gag order, I felt it was totally unnecessary in our 

case. We had no intention of finding out who the FBI was after, 

let alone informing them. But we did want to let Congress know 

that National Security Letters were being served on libraries, and 

we did want to let libraries know that now it was the policy of the 

Government to use the PATRIOT Act against libraries and that 

they should take appropriate measures. 

Chairman FEINGOLD. Ms. Spaulding? 

Ms. SPAULDING. Mr. Chairman, in response to your earlier question about other areas that might require some additional investigation, there is a very troubling incident relayed in the IG’s report with respect to the Terrorist Financing Operations Section and 

their interaction with the Assistant General Counsel from the 

FBI’s Office of General Counsel, where certain key facts with respect to requests being made to Federal Reserve banks were misrepresented to the Assistant General Counsel and guidance from 

that lawyer was ignored. And I think it would be important to find 

out more of the facts surrounding that incident and whether anybody faced any disciplinary action and what has been done in response to that. 

Thank you. 

Chairman FEINGOLD. Thank you. 

Representative Barr? 

Mr. BARR. Thank you, Mr. Chairman. I would simply urge the 

Chairman both in his capacity as Chairman of this Subcommittee 

and to urge his colleagues to move forward with very aggressive 

oversight at this particular time. In my experience both in the executive branch and in the oversight that we conducted in the 

House counterpart to the Committee of which this Subcommittee is 

a part, as bad as the abuses that we have seen are, at times of uncertainty when leadership is lacking or confused, such as the current situation at the Department of Justice, these problems are 

going to be compounded. They will not get better in the current environment over there. They will get worse. There is great potential 

for further abuse right now. 

20

So I think it is very important that these matters be pursued 

from an oversight standpoint, immediately, repeatedly, and very 

aggressively. Otherwise, it will get worse. And if, in fact, the 

abuses that we have seen chronicled by simply scratching the surface, as the IG did here, become institutionalized by repetitive use 

over time, as they do during periods where leadership is confused 

or you do not have clear lines of authority, it becomes that much 

harder to dislodge those abusive patterns of behaviors and those 

practices. 

Chairman FEINGOLD. That is a very timely warning. I appreciate 

it. Well, again, I thank all of you. This is exactly what I had hoped 

it would be, and I look forward to working with you on this in the 

future. 

This concludes the hearing. 

[Whereupon, at 4:01 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.]

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