U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

55–610 PDF 2010

S. HRG. 111–333 

REAUTHORIZING THE USA PATRIOT ACT: 

ENSURING LIBERTY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 23, 2009 

Serial No. J–111–49 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

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 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

SHELDON WHITEHOUSE, Rhode Island, Chairman 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

BENJAMIN L. CARDIN, Maryland 

EDWARD E. KAUFMAN, Delaware 

JEFF SESSIONS, Alabama 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

SAM GOODSTEIN, Democratic Chief Counsel 

MATT MINER, 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, prepared statement ................................................................................................... 79 

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

prepared statement .......................................................................................... 113 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

Fine, Glenn, Inspector General, U.S. Department of Justice, Washington, 

D.C. ........................................................................................................................ 7 

Graves, Lisa, Executive Director, Center for Media & Democracy, Washington, D.C. ........................................................................................................... 36 

Kris, David, Assistant Attorney General, U.S. Department of Justice, Washington, D.C. ........................................................................................................... 5 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C. ........................................................................................................................ 32

Wainstein, Kenneth L., Partner, O’Melveny & Myers, LLP, Washington, D.C. 34 

SUBMISSIONS FOR THE RECORD 

American Association of Law Libraries, Catherine Lemann, President, Chicago, Illinois, statement ....................................................................................... 49 

American Civil Liberties Union, New York, New York, statement ..................... 51 

Constitution Project, Sharon Bradford Franklin, Senior Counsel, Washington, 

D.C., statement .................................................................................................... 65 

Fine, Glenn, Inspector General, U.S. Department of Justice, Washington, 

D.C. ........................................................................................................................ 81

Graves, Lisa, Executive Director, Center for Media & Democracy, Washington, D.C. ........................................................................................................... 97 

Kris, David, Assistant Attorney General, U.S. Department of Justice, Washington, D.C. ........................................................................................................... 107 

Spaulding, Suzanne E., Principal, Bingham Consulting Group, Washington, 

D.C. ........................................................................................................................ 116 

Wainstein, Kenneth L., Partner, O’Melveny & Myers, LLP, Washington, D.C. 133 

(1) 

REAUTHORIZING THE USA PATRIOT ACT: 

ENSURING LIBERTY 

WEDNESDAY, SEPTEMBER 23, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC 

The Committee met, pursuant to notice, at 10 a.m., U.S. Senate, 

Committee on the Judiciary, Room 226 Dirksen Senate Office 

Building, Hon. Patrick Leahy presiding. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everybody. After September 

11th, for many of us it still feels like yesterday, I worked to ensure 

that the USA Patriot Act included oversight. I think one of the 

things that as much as we were concerned about that attack, as 

much as we were concerned about the fact that in many areas we 

had, we the United States had missed the signs that attack was 

imminent. 

I wanted to make sure that if we were going to increase information gathering powers of the government, that we would sweep in 

U.S. citizens. I wanted to make sure it was implemented appropriately. This was not a partisan attitude. 

I worked with an in-house majority leader, Republican Dick 

Armey, a very conservative member of the House who agreed with 

me on this and we included sunsets for some of the provisions with 

the greatest potential to directly affect Americans. We wanted to 

make sure that after they had been used for a while, we would be 

forced to look at them again because they could be reauthorized 

once we did. 

We debated the reauthorization of the Patriot Act for several 

months in 2005 and 2006. I again worked to protect the civil liberties and constitutional rights of Americans while providing the 

government with the tools it needs to aggressively go after those 

people who would harm us. 

Now, unfortunately, while the reauthorization bill of 2006 had 

some improvements, some significant improvements, it lacked sufficient constitutional protections against the authorities granted the 

government. 

I worked with Senator Specter and we were able to expand public transparency in congressional oversight—but in the end several 

important checks and balances were not included in the final 

version. While I liked a lot of parts about it, I voted against it because those checks and balances were left out. 

2 

Now we have three provisions expiring on December 31st, 2009. 

It appears because of all the slowdowns we will be in session until 

December 31, 2009. In fact, I have already made plans. Normally 

I’d be in Vermont at Christmas which is a nice place to be, but it 

looks like the way the Senate schedule is going we will be here instead. 

We have another chance to get it right. The provisions slated to 

expire at the end of this year include the authorization for roving 

wiretaps, the Lone Wolf Measure and an order for tangible things 

commonly referred to as Section 215, the Patriot Act or the so 

called Library Record Provision. 

In March, I sent a letter to the Attorney General requesting the 

administration’s views on these expiring provisions. Again in June 

I reiterated that request at a Judiciary Committee oversight hearing. I recently received a letter from the Department of Justice urging Congress to extend the expiring authority. 

I also know the President’s and the Attorney General’s emphasis 

on accountability and checks and balances and their willingness to 

consider additional ideas. Actually that openness is something unusual but welcome and I look forward to exploring it. 

Yesterday I introduced a bill with Senators Cardin and Kaufman 

that aims to strike the kind of balance the administration urges. 

It will extend the authorization—expiring authorization of a new— 

it will add checks and balances by increasing judicial review of government powers, expand congressional oversight and public reporting on the use of intrusive surveillance measures, and the Leahy/ 

Cardin/Kaufman mandates new audits by the Department of Justice Office of Inspector General on the use of Section 215 and national security letters. 

We all appreciate the earlier audits conducted by Inspector General Glen Fine because those led to improvements. 

In developing our proposal, I have consulted with Senators Feingold and Durbin. We introduced a more expansive bill last week 

and with their encouragement I borrowed a few of the accountability provisions from their proposals. 

While it is a shared early draft of our proposal, Senator Feinstein, Chair of the Senate Committee on Intelligence, I look forward to working with everybody. We will turn to the issue of our 

committee meeting on October 1st which is a week from tomorrow. 

I am pleased that the Attorney General is moving in the right 

direction to better control assertions of the state’s secrets privileges 

after our efforts over the last several years to bring oversight and 

accountability to the administration’s invocation of this privilege. 

The administration’s policies that are being announced right now 

heckle the Senate legislation we have been passing. It is being announced now and the administration leaked them last night and 

actually I’m pleased with them. 

The Attorney General’s announcement incorporates several concepts drawn from our State Secrets Protection Act such as the 

adoption of a significant harm standard, the creation of new internal controls, the requirement the Attorney General personally approved, the assertion of the State Secret privilege. 

I press hard to shine a light on the misuse, there has been a misuse to the State Secret privilege. We want the privilege but we 

3 

don’t want to misuse. We have to have mechanisms to guide this 

application. Today’s announcement marks progress. 

I will closely monitor the implementation of this new State Secret policy. I will make sure everybody has a higher level of accountability and transparency. I am especially concerned with ensuring the government makes a substantial evidentiary showing to 

a public judge in asserting the privilege so that the rule of the 

court can be there and determine whether it should be allowed. 

I commend the Attorney General, I commend him very highly for 

working with us and shaping these approved policies and procedures. I am going to yield to Senator Sessions and then we will go 

right to David Kris and Glenn Fine. Go ahead. 

STATEMENT OF JEFF SESSIONS, A U.S. SENATOR FROM THE 

STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. Thank you for this 

hearing. You have been a strong supporter of the Patriot Act. It 

has been a bipartisan act. I do believe that this committee after 9/ 

11 fulfilled its responsibility by carefully scrutinizing every single 

word in it to make sure that there were no abuses of constitutional 

rights of our citizens. I think that was achieved. 

I don’t believe that subsequent events have proven that there 

have been any abuses of the Act to date and I think in fact the history of the Act shows that it has been very helpful in allowing us 

to go now some 8 years without having another attack. I appreciate 

the work that everybody put into this when you were either Chairman and ranking member I guess throughout the whole process. 

Chairman, I suppose. 

Chairman LEAHY. Both. 

Senator SESSIONS. Both I guess. 

Chairman LEAHY. Of the two I will tell you later which I enjoyed 

more. 

Senator SESSIONS. The provisions of this Act did not create new 

or unusual powers for the Federal Government. Rather, the Act extended to our National Security Agency the same tools essentially 

that had long been available to domestic law enforcement that I 

used as a Federal prosecutor. 

In the fight against terrorists, it is only fair and common sense 

and reasonable that we have at our disposal abilities that have existed for decades to pursue drug dealers and mobsters. 

When this Act was passed in 2001 and then reauthorized in 

2005, some were concerned that significant violations of civil liberties would result. Some were concerned that libraries would be 

abused. Well, we have closely examined the performance of our law 

enforcement agencies under the Act and we can safely say those 

fears did not materialize. 

Our national security and law enforcement agencies have made 

responsible use of these tools and at the same time continued to 

protect the safety of the American people. 

Three of these essential tools are up for reauthorization. We have 

the roving wire taps, the business records provision Section 215 

and the Lone Wolf section of the Intelligence Reform Act that the 

Chairman mentioned. 

4 

It is important to say at the outset that the administration is requesting that the provisions be renewed. The Assistant Attorney 

General has written the Chairman that the DOJ has discussed 

these provisions with the Director of National Intelligence. They 

are unequivocal about the administration’s position that we are 

still at war with Al Queda and that these provisions should be reauthorized because they are important tools in this war and to 

make America safe. 

The roving wire tap is a provision that prevents terrorists from 

evading surveillance. Before September 11, 2001, a target could 

just switch phones several times and the National Security Agency 

would have to obtain a new court order to have a wire tap on each 

one of those phones. As a matter of fact, criminals today use 

phones regularly and they throw them away. 

Narcotics and organized crime prosecutors can apply for and are 

able to apply for roving wire taps so that their agencies could monitor criminals bent on avoiding detection. That was passed in 1986. 

It allowed that in drug cases. 

The provision of the Patriot Act grants terrorist hunters the 

same tools to catch a savvy terrorist as law enforcement has been 

using to capture criminals. 

FBI Director Muller appeared before us last week and testified 

since the roving wire tap was authorized, it has been used approximately 140 times. He described this as tremendously important. It 

is essential given the technology and growth of technology that we 

have had. 

The Business Records Provision Section 215 feels the gap in national security intelligence gathering and according to the Department of Justice has proven valuable in a number of contexts. It 

permits the authorities to seek permission from courts, go to court 

to gain access to business records that can help ‘‘connect the dots’’ 

in tracking terrorists and foreign agents. 

When the Act was passed in 2001 and reauthorized in 2005, 

some feared it would be abused. Well, now we have several years 

of tracking this and no such incident has occurred. This provision 

simply extends to national security agents the same abilities basically possessed by any Federal prosecutor. 

In investigating ordinary crime, a prosecutor can issue a Grand 

Jury subpoena which orders the production of all sorts of business 

records and documents. In fact, ordinary Grand Jury subpoenas are 

not as regulated as this because they do not need to be approved 

by a judge as these types of orders are. 

As Director Muller told us, these orders have been used about 

250 times and ‘‘the records that are received are absolutely essential to identifying other persons who may be involved in terrorist 

activities.’’ 

The Lone Wolf section of the Act is a common sense provision 

that we need to continue the fight against terrorism in the 21st 

Century even though it has not even been used one time yet; it is 

there to defend against a very real possibility. 

A rogue terrorist may not be linked to a terrorist group. Or if he 

is, he may not be proven to be linked. In the past, the law required 

that the National Security Agency show a connection between a 

terrorist and a terror group or a foreign national power in order to 

5 

monitor them. This meant that if a terrorist or a foreign agent left 

a terror group, abandoned them, perhaps because of a dispute, we 

would not be able to track him until he joined some other group. 

As our armed forces fight and succeed against terror groups, we 

will inevitably splinter them, perhaps causing some to strike out on 

their own, or some will self-radicalize, gaining fame from the internet. 

The statutory language of this provision is narrow and guarantees that it will not be abused and—the provision stands waiting 

to be used and has never been used. 

The DOJ notes, ‘‘we believe that it is essential to have the tool 

available for the rare situation in which it is necessary rather than 

to delay surveillance of a terrorist in the hopes that necessary links 

could be established.’’ 

So I believe that Congress and the President work together very 

well to pass this Act in 2001 and reauthorize it in 2005. Chairman 

Leahy is a strong believer in civil liberties. You monitored the Act 

very, very carefully before you lent your support to it. I think it has 

proven to be valuable and proven not to have been abused. I think 

it should be reauthorized without any weakening of it. Thank you, 

Mr. Chairman. 

Chairman LEAHY. Thank you very much. Our first witness is 

David Kris, who currently serves as the Assistant Attorney General 

for National Security. 

Earlier in his career he worked for 8 years as a Federal prosecutor in the Criminal Division. Certainly the ranking member and 

I are always delighted to see prosecutors here. 

He served as Associate Deputy Attorney General and in 2003 supervised the government’s use of the Intelligence Surveillance Act. 

Now Mr. Kris, as you know, some of us in this committee worked 

very hard to ensure your confirmation to a vital position within the 

administration. None of the policies being announced today by the 

Attorney General with regard to government claims the State Secret privilege, you are going to have a very critical role to play. We 

are going to be looking for you to fulfill that role in the new policy 

by ensuring against misuse and overuse—the State Secret, but also 

I think by making sure the proper role of the court is respected. 

So Mr. Kris, Assistant Attorney General Kris, please go ahead, 

sir. 

STATEMENT OF DAVID KRIS, ASSISTANT ATTORNEY GENERAL, 

WASHINGTON, DC 

Mr. KRIS. Thank you, Chairman Leahy, Senator Sessions and 

members of the committee, thank you for inviting me to testify 

today. 

As you know from my written submission in the letter that we 

sent on September 14th, we favor reauthorization of the three 

sunsetting provisions in the USA Patriot Act and we are open to 

working with Congress on those provisions. 

We have seen recent draft legislation from Senator Leahy, Senator Feingold and others and we are reviewing those drafts now. 

Of course we don’t have a position on them at this time. 

Let me just walk through each of the three provisions quickly. 

The first is the roving surveillance provision. As you know, this 

6 

was enacted in 2001 to correspond to preexisting authority that applies to law enforcement surveillance. I want to make two basic 

points about this roving surveillance provision. 

The first is that we can obtain roving surveillance authority from 

the court only when we can show to a judge that the actions of the 

surveillance target, the person or entity from or about whom we 

are seeking information may have the effect of thwarting our ability to conduct the surveillance with the aid of a specific third party 

like a telecommunications provider. So we have to show this 

thwarting effect first. 

Let me try to explain how that thwarting effect can occur. In an 

ordinary FISA surveillance case, the government shows probable 

cause to the judge of two basic facts. First that the target is a foreign power or an agent of a foreign power, and those terms are defined in great detail in the statute. 

Second, that the target is using or about to use a particular facility like a 10 digit telephone number or something like that. 

For its part then the court issues two orders. First, a primary 

order to the government that says yes, you are authorized to do 

this surveillance, and then what is called a secondary order directed to the particular telecommunications provider or other third 

party and that secondary order says you should help the government effectuate the surveillance. The phone company needs to help 

us do the surveillance on the particular phone number. 

If in an ordinary FISA case, the target switches carriers from one 

provider to another, the new provider will not honor a secondary 

order that was directed only at the old provider. You wouldn’t want 

it any other way. You wouldn’t want phone company number 2 to 

start honoring orders that are directed at phone company number 

1. 

So that is where the thwarting can occur because we have to go 

back to court, file a new pleading and get a new order. That creates 

a gap in our coverage. 

In a roving case we avoid that problem because we get in effect 

a generic secondary order that can be served on any provider so 

that we can follow the target from provider to provider if he jumps 

around. 

That is the first point I wanted to make about this provision. The 

second point which comes at the back end of roving and is equally 

important and that is whenever we implement this roving authority, we must report to the court, to the FISA court normally within 

10 days of the probable cause that ties the target to the new facility that he has roamed to. That if you think about it makes sense 

because the main thing that changes in a roving surveillance case, 

in effect really the only thing that typically changes is the new facility. 

The target is the same target. The probable cause that the target 

is an agent of a foreign power is the same probable cause. So the 

statute I think wisely and correctly focuses on what is new and 

that is the probable cause linking the target to this new facility. 

So that is the way the architecture of the statute works and that 

is essentially why we think it should be renewed. 

7 

I should also add that I’m not aware of any major compliance 

problems with the implementation of the roving authority since its 

inception in 2001. 

Briefly with respect to the Lone Wolf provision which is the second of the three, this provision has never been used. Again, I have 

sort of two quick points. The first is as to its scope. This is a provision that applies only to non-US persons, not to US citizens, not 

to green card holders, and only when they themselves engage in or 

prepare to engage in international terrorism. 

The provision is designed basically to address the possibility of 

the situations that Senator Sessions described. A person who selfradicalizes and engages in this international terrorism without 

being a member of any group or a person who was a member but 

then breaks with a group and then goes off on his own as a kind 

of free agent. 

If that kind of case arises, we would have difficulty establishing 

or maintaining our coverage without the Lone Wolf provision. That 

is the idea behind it. 

Third and finally the business records provision Section 215 of 

the Patriot Act. In general, this provision is used when three circumstances exist. First, the information sought can’t be obtained 

by a national security letter. National security letters exist for specific types of information in specific situations. 

Second, a Grand Jury subpoena would not be sufficiently secure 

secret, and third, the provider either can’t or won’t turn it over voluntarily. So with that, I will stop and I look forward to answering 

your questions. Thank you. 

Chairman LEAHY. Thank you very much. I am holding the National Security Investigations and Prosecutions which you co-authored with Douglas Wilson. So if there is anything you disagree 

with what you have in there, be prepared. 

Glenn Fine is well known of course as the committee he served 

as the Department of Justice Inspector General since 2000. He has 

been a member of the Office of the Inspector General since 1995. 

His office conducted comprehensive audits of Section 215 of the 

Patriot Act of the use of national security letters. These audits 

which are combined with a number of other reports issued by his 

office represented really the largest portion of the public reporting 

on the use of surveillance authorities. 

Mr. Fine, glad to have you here. Go ahead, please. 

STATEMENT OF GLENN FINE, INSPECTOR GENERAL, 

WASHINGTON, DC 

Mr. FINE. Mr. Chairman, ranking member Sessions, members of 

the committee, thank you for inviting me to testify about the Office 

of the Inspector General’s work related to the Patriot Act. 

Our most significant reviews have focused on the FBI’s use of national security letters and Section 215 orders. Pursuant to the Patriot Reauthorization Act, in March, 2007 and March, 2008, we 

issued reports examining the FBI’s use of these two authorities and 

I will focus my testimony on our findings from those reviews. 

First, with regard to the use of national security letters, NSLs. 

Our reports recognize the major organizational changes the FBI 

8 

was undergoing in this counter terrorism and counter intelligence 

efforts during this period. 

Nevertheless, our reports found that the FBI had engaged in serious misuse of NSLs. For example, we found that the FBI had 

issued many NSLs without proper authorization and had made improper requests under the statutes cited in the NSLs. Most troubling, we identified more than 700 instances in which the FBI improperly obtained telephone toll billing records by issuing so called 

exigent letters. 

These letters stated that they were being issued due to exigent 

circumstances and that the FBI was in the process of obtaining 

subpoenas for the requested information. 

In fact, we found that many of these letters were not issued in 

exigent circumstances and that subpoenas had in many instances 

not been submitted to the U.S. attorney’s offices as represented in 

the letters. 

As a result of our findings, the FBI has ended its practices of 

using exigent letters and the OIG is now in the final stages of completing a review, examining who is accountable for the misuse of 

these letters. 

In total, the OIG’s two reports on national security letters made 

27 recommendations to the FBI to ensure that it uses NSLs in accordance with the requirements of law, department guidelines and 

internal FBI policy. We believe that the FBI has taken these recommendations seriously and has devoted substantial time and resources to implementing them. 

For example, the FBI created an Office of Integrity and Compliance to identify risk areas in FBI programs. However, we have 

some concerns about the staffing of this office and we also do not 

believe that this office should be looked to as the primary oversight 

mechanism to ensure that the FBI uses NSLs properly. 

Because of the emphasis the FBI has placed on this office, the 

OIG intends to initiate a separate review to assess in detail the 

work of the office. In addition, in response to our reports, the department established a national security letter working group to 

develop minimization procedures regarding acquisition, dissemination and retention of information obtained from NSLs. Yet while 

this group has drafted proposed recommendations, these recommendations have not yet been finalized even though it has been 

more than 2 years since our first NSL report was issued. 

We believe the department should complete its review of the 

working group’s proposals and promptly issue final minimization 

procedures for NSLs. 

With regard to the use of Section 215 orders, the OIG examined 

and issued two reports on the FBI’s use of these orders to obtain 

business records. While used much less frequently than NSLs, the 

FBI believes that the Section 215 authority is essential to national 

security investigations because it is the only compulsory process for 

certain kinds of records. 

Our reviews did not identify any illegal use of Section 215 orders. 

However, a second report does discuss a case in which the FISA 

court twice refused to authorize a Section 215 order based on concerns that the investigation was premised on protected First 

Amendment activity. 

9 

The FBI subsequently issued NSLs to obtain information about 

the same subject based on the same factual predicate even though 

the NSL statute contains the same First Amendment caveat as the 

Section 215 statute. 

My written statement also describes other reviews within the 

FBI that while not directly involving Patriot Act authorities, relate 

to FBI programs and functions that can impact its ability to perform its vital mission. 

In conclusion, we found that the FBI did not initially take seriously enough its responsibility to ensure that Patriot Act authorities such as national security letters were used in the court with 

the law, Attorney General guidelines and FBI policies. 

Since issuance of our reports, however, we believe that the FBI 

has devoted significant effort to correcting its misuse of these authorities. Yet we believe this is an ongoing process and is too early 

to conclude definitively that the FBIs efforts have fully and finally 

eliminated all the problems we found. 

We also believe that as Congress considers reauthorizing provisions of the Patriot Act, it must ensure through continual and aggressive oversight mechanism that the FBI uses these investigative 

authorities appropriately. 

We recognize that the OIG has an important role to play in this 

oversight process and we intend to continue our reviews of the 

FBI’s use of these authorities. 

That concludes my testimony and I would be pleased to answer 

any questions. 

Chairman LEAHY. Thank you very much, Mr. Fine. The bill I introduced this week, the USA Patriot Act Sunset Extension Act has 

a 4-year sunset in all the three expiring Patriot Act provisions 

similar to what we did in 2001 and again in 2005/06 reauthorization. 

But it also has a new 4-year sunset on the use of national security letters. These are the letters that allow the government to obtain bank records and credit card statements, medical records and 

other personal information all without a warrant. 

Given the misuse of the NSL authority that was seen in the Inspector General’s 2007 report, I thought it was time to take another look at the authority. So I introduced the USA Patriot Act 

after September 11th. I said because I thought we needed these aggressive tools and I was glad to do it. 

But given that these authorities allow the government to collect 

so much information about Americans, is it the administration’s position, do they agree with me that it is only reasonable to have a 

sunset on these authorities because it would force us to periodically 

look at them and see how they are being used? 

Mr. Kris. 

Mr. KRIS. Senator, thank you. Obviously as I mentioned, we don’t 

have an official administration position on that element of your bill 

or the others. It is certainly something we can think about and discuss and work with the committee. 

Chairman LEAHY. Let me ask Mr. Fine. 

Mr. FINE. Well, I don’t speak for the administration here. I do 

think it’s important to ensure that there is aggressive oversight of 

10 

this, that it be continually looked at. Our audits did expose problems in NSLs and it is important to continue that review. 

Chairman LEAHY. Let me put it this way. Has it been your experience that there is more oversight at the time when sunset provisions are about to kick in? 

Mr. FINE. There is more scrutiny of the issues as evidenced by 

this hearing. That’s clear. 

Chairman LEAHY. Now, Section 215, the business records orders 

has an incredibly expansive authority. As long as the government 

meets the simple relevancy standards of things sought pertaining 

to a specific kind of intelligence along investigation, the FISA court 

can allow them to take not just business records, but any thing. 

That means not just library records but the lawful purchase of firearms, something of some concern in my own state of Vermont, your 

own personal medical records of some concern to all of us, your 

computer, any tangible thing at all even if it meant it closed down 

your small business. 

The government is almost always guaranteed success because 

current law confers a presumption of relevance to the government’s 

claim that what it is seeking is relevant to the investigation. 

It is quite an advantage to the government. You are a small business and somebody comes in and just swoops up and takes out all 

your computers and you are effectively closed down. Then you say 

well, there is a presumption of relevance. 

I would think as technology advances and more and more personal information is available, isn’t it reasonable to require the 

government to have to at least prove the things that it is seeking 

are relevant in terrorism investigation and connect it to at least a 

suspected terrorist before they are allowed to go into all this huge 

amount of private material? 

Mr. Kris. 

Mr. KRIS. The statute requires the statement of fact showing 

that there are reasonable grounds to believe that the tangible 

things sought are relevant. 

Chairman LEAHY. But there is automatically a presumption. 

Mr. KRIS. No, I understand that there is a presumption if the 

materials pertain to a foreign power or an agent of a foreign power 

or the activities of the agent of a foreign power. In certain categories there is a presumption, but nonetheless, there does have to 

be a statement and then a showing of relevance. 

If you think about how this kind of authority is used and the 

stage at which it is used. It is used at an early stage often of an 

investigation to gather documents not after probable cause has 

been established, but in order to establish probable cause or in 

order to weed out people who really don’t belong in the investigation. 

Chairman LEAHY. It is ordinarily expansive. If you have somebody in there who just wants to do it because they don’t like somebody for example, on business, they could close down the business. 

If they wanted to do a fishing expedition in hospital records, 

everybody’s records, yours, mine, everybody else’s, they can do that 

and they are given a presumption of relevance. 

Mr. FINE. Well, obviously there is here a provision that prohibits 

the use of this against someone based solely on their exercise of 

11 

First Amendment rights, so some of these cases where you posit 

some very bad hypotheticals would be just flat out prohibited by 

the statute. I should also say that—— 

Chairman LEAHY. I wasn’t speaking about First Amendment 

matters. 

Mr. FINE. And I should also say that the recipient of a 215 order 

who may not always be the person whose records are in play has 

a right to bring an action in the FISA court. That hasn’t happened. 

I think that may be an indication of how the recipient—— 

Chairman LEAHY. How do they bring it? They have to overcome 

presumptions. I mean, the cards are rather stacked. 

Mr. FINE. I mean, I don’t disagree with you insofar as the relevance standard with or without the presumption is not a very 

high standard. It isn’t a probable cause standard or proof beyond 

a reasonable doubt or anything of the sort. 

I think that reflects the fact of how this investigative tool is used 

and indeed on the criminal side, if you think about the standard 

that applies to a Grand Jury subpoena under the R. Enterprises 

case, the Grand Jury has enormous authority without a judge signing off on the subpoenas to collect a lot of information under a very 

low standard as well and that is just the way investigative tools 

are structured. 

Chairman LEAHY. You and I are going to be talking about this. 

Mr. FINE. I look forward to that. 

Chairman LEAHY. Also the bill I introduced with Senators Cardin 

and Kaufman include new audits on Section 215 orders for tangible 

things in the use of national security letters—trace devices. 

Given the letter’s favorable language to us, the letter you sent to 

me on reauthorization, speaking about congressional oversight, do 

you support the audits in the bill? 

Mr. FINE. As I said, we don’t have a position on anything particular yet. I do want to say, though—— 

Chairman LEAHY. I mean, your letter says you support oversight. 

Are you saying that you support oversight but you can’t take a position on oversight? 

Mr. FINE. I mean, I’m not in a position to announce an administration position on any particular aspect of your bill. The bill obviously was dropped fairly recently. We are looking at it now actively 

and we are interested in working with the committee and with you 

and others to try and see if these tools can be sharpened. 

Chairman LEAHY. On these audits, would you get back to me as 

quickly as possible? 

Mr. FINE. Yes. 

Chairman LEAHY. Thank you. Senator Sessions. 

Senator SESSIONS. Thank you. Mr. Kris, isn’t it true that a Federal drug enforcement agent who is investigating a drug organization can issue administrative subpoenas without a court or a Grand 

Jury oversight and obtain telephone toll records or motel records 

or even bank record relating to that investigation? 

Mr. KRIS. Yes, there are a number of administrative subpoenas 

including in the drug arena and other areas that operate as 

you—— 

12 

Senator SESSIONS. Well, how about an IRS agent who is investigating tax fraud? Can they get your bank records and your telephone toll records? 

Mr. KRIS. Yes. Under certain circumstances they can, and you 

are right, there is an array of circumstances. 

Senator SESSIONS. Isn’t it true that the national security letters 

really have more oversight and more requirements on them perhaps than the administrative subpoenas that other Federal agencies have been using for many, many decades? 

Mr. KRIS. It is certainly true that a 215 order has more process 

associated with it than these criminal side collection authorities because a 215 order is issued by a judge based on an application 

made by the government in advance of the issuance of the order 

and the production of the tangible things. 

The authorities that you were just reciting on the criminal side 

including the Grand Jury subpoena don’t require advanced judicial 

approval. 

Senator SESSIONS. Now, just for our members and those that 

might be interested, documents in the possession of a bank or a 

telephone company are not in the possession of the defendant. That 

is a third party. 

Hasn’t it been true that the court has always recognized as a different standard in the burden of proof when you obtain information 

from a third party than getting it out of your desk drawer or coming out of your pocket or your automobile where you have personal 

control over it? 

Mr. KRIS. I mean, that is certainly correct both with respect to 

the Fourth Amendment and in some cases under active production 

to the Fifth Amendment. When you give information to a third 

party, the Fourth Amendment calculus changes under the Miller 

decision from the Supreme Court. 

Senator SESSIONS. Because essentially the telephone toll records 

or the bank records are in possession of somebody else. Everybody 

at the bank, everybody at the phone company has access to those 

records. You have a diminished expectation of privacy in records 

held by other institutions than held by yourself. 

Now, with regard to the roving wire taps, isn’t it true that you 

still have to have and you still have to go through the very significant process to obtain a warrant to have that approved by a Federal judge and they have to set forth extensive factual predicates 

to justify the court issuing that warrant and it is quite extensive 

and quite a major operation to get a Federal tap on a telephone 

whether it is one phone or a roving phone. 

Mr. KRIS. I mean, both under Title 3, the Criminal Wire Tapping 

Statute and under FISA, there are lengthy applications that are 

prepared on the FISA side by attorneys in my office. I signed some 

of those, so yes, they are extensive. They have to make a showing 

of probable cause that we make in every case. 

When we want to seek roving authority, we have to make an additional showing about the actions of the target thwarting or having a possibility of thwarting the surveillance. 

Senator SESSIONS. And there has been no lasting of that in national security cases that you would have in a mafia case, an organized crime case, a case of that nature. 

13 

Mr. KRIS. I mean, the statute is different under FISA than it is 

under Title 3 on the criminal side. But the probable cause requirements that have been in FISA since 1978 have not been watered 

down. 

Senator SESSIONS. It seems to me that is the fundamental protection that every American has is that before you can listen in on 

your phone conversation, you have to have probable cause that a 

crime is underway, that this person is involved with it and this 

telephone or a telephone may be utilized in the furtherance of it, 

isn’t that right? 

Mr. KRIS. On the criminal side, yes, you would make a showing 

of a specific crime. Not every crime will do. They have to have several listed in 2516 of Title 18 and then the facility the phone would 

say is being used in connection with that crime. 

Senator SESSIONS. Well, Mr. Fine, you wouldn’t dispute the thousands and thousands of administrative subpoenas issued by the 

IRS to find out if we paid our taxes or DEA investigating drugs, 

would you? You acknowledge that? 

Mr. FINE. I acknowledge that, yes. 

Senator SESSIONS. Well, let me ask you this, Mr. Fine. With regard to the complaints you raised initially, you have indicated still 

the FBI has not gotten its act totally together which I am not 

happy with. I think they should respond and follow these rules as 

strictly as they possibly can. But the national security letters are 

not in essence much different than the administrative subpoenas 

issued by other Federal agencies, are they? For the most part, the 

ones that are issued most often. 

Mr. FINE. They are similar but the are broader. There is more 

of them. They are issued in more contexts and we found in our particular scrutiny of this that they were not used properly and that 

they had not followed their own policies, that they were used sometimes in excess of the statutes. 

Senator SESSIONS. Have you issued your final report on that? 

Mr. FINE. Well, this is our March, 2007 and March, 2008 reports 

on national security letters, yes. 

Senator SESSIONS. Have we seen that report? 

Mr. FINE. Yes. 

Senator SESSIONS. Well, to what extent have your recent evaluations discovered that the FBI is still not following proper procedures? 

Mr. FINE. We issued these reports in March, 2007 and in March, 

2008 we issued a follow-up report and found that they had taken 

substantial efforts. They had made significant strides but there 

still needed to be more work done. 

We have not issued a report since then but we have been in contact with them and we anticipate a continuing oversight over this 

matter. 

Senator SESSIONS. Well, I think that’s fine, but some of the errors were like the agency had used a U when they should have 

used a subsection B and more clerical errors that you counted correctly as being errors, is that correct? 

Mr. FINE. There were a whole range of errors. Some were clerical 

errors, some were errors by the telecommunication providers, some 

14 

were errors by the agency, some were serious errors where they 

were issuing NSLs in instances when they were not proper. 

Senator SESSIONS. Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. Thank 

you for the bill. Gentlemen, welcome. I’d like to put on my other 

hat which is Chairman of the Intelligence Committee. 

There was so much criticism after 9/11 that the intelligence community really didn’t know where an attack would take place or was 

able to put together certain facts that would lead to an arrest that 

would prevent an attack. So since that time we have seen a greatly 

developed intelligence community aimed at protecting the homeland which I very much appreciate. 

We are in the process of a major intelligence investigation in 

both New York and Colorado. I happen to believe it is a real investigation and I know that the FBI has enormous resources expended 

in this investigation. 

Mr. Kris, I would like to begin with this question. Is there anything in this bill that would impede or affect the present investigation? 

Mr. KRIS. Senator, thank you for that question. I think the best 

answer to that is that that is something that would properly be discussed in a classified setting and I think we would be happy to do 

that. 

Obviously we are not going to discuss classified matters here, 

and also there is this Justice Department policy about commenting 

on ongoing investigations. So I think for both of those reasons, that 

will be deferred to a different setting, but I appreciate the question. 

Senator FEINSTEIN. Well, then clearly your answer is not no, so 

I think we ought to have that—— 

Chairman LEAHY. I think in fairness to Mr. Kris, his answer is 

what his answer was. 

Senator FEINSTEIN. All right. Well, thank you very much but I 

am free to interpret it however I might choose to and I certainly 

think we should have that classified session. 

Can you describe what types of information would be included in 

a statement of fact? I am now talking about the NSL provisions of 

this bill. How much detail would have to be in the statement of 

facts in order to prove relevancy? 

Mr. KRIS. Do you mean under Senator Leahy’s bill? 

Senator FEINSTEIN. That’s correct. 

Mr. KRIS. I want to be very cautious about commenting on it because we just haven’t worked all the way through the bill to figure 

out what it would actually mean. It is complicated stuff, as you 

know. 

If we are changing the standard in a significant way, then it will 

by definition, and I think it is designed to, have an effect on the 

way the authorities are used and that is a question of striking a 

balance as to how much authority you want to give. But we haven’t 

as an administration yet worked through at that level of detail exactly what the implications would be here. 

Senator FEINSTEIN. So could you answer the question? Would the 

information in a statement of facts be classified? And if so, how 

15 

would private sector companies be expected to handle that information? 

Mr. KRIS. I’m not sure I understand, Senator. There is a provision I think I have read that would require us to explain to private 

sector entities, telecom providers or others exactly what our basis 

is. That would be a change I think in current law. Again, we are 

still trying to work through that and figure out how it would work, 

so I don’t want to announce or take a position on it. I think I understand that is what you are referring to. That would be a change. 

Senator FEINSTEIN. The Leahy bill would add a requirement for 

the statement of fact which would show reasonable grounds to believe that the information sought is at least relevant to an authorized investigation. Would you have a problem with that? 

Mr. KRIS. Again, I think that’s a position we would like to work 

through in an orderly fashion and then deliver to the committee 

once we have done that homework. I apologize that I’m not in a position to announce an administration position here. 

Senator FEINSTEIN. OK. You laid out certain tangible things 

sought under the business records section as presumptively relevant if the government shows that they pertain to a foreign 

power, an agent of a foreign power, the activities of a suspected 

agent of a foreign power who is the subject of an authorized investigation or an individual in contact with or known to an agent of 

a foreign power who is the subject of such investigation. 

The bill as I understand it removes the presumption of relevance 

described above and it requires the government to show relevance. 

Can you describe how the government would be expected to show 

relevance? Would this also require a statement of fact to a court? 

And how much detail would be required? 

Mr. KRIS. I will answer that question carefully so that I don’t get 

into anything classified or operational. But yes, I mean, the statute 

currently requires a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant. 

So today we are making a statement of fact to a judge. We would 

be aided by the presumption that you just described if the conditions of that presumption are satisfied, if that presumption is 

eliminated then we won’t have that benefit of the presumption. We 

are still going to be making a statement of fact. 

What that would be would vary from case to case as you can 

imagine. But when you are making a statement of fact in support 

of a showing of relevance, you are trying to show the judge why 

it is that this information that you are seeking pertains to or is important to the investigation that you are undertaking. 

Senator FEINSTEIN. So you do not see this as slowing down an 

investigation? It could be done in a very timely way? 

Mr. KRIS. Well, under 215, obviously Mr. Fine has written extensively about the delays associated with the use of 215 in the past. 

I think we have made improvements on making it faster. When you 

change the bill, if you change the law, it may have an effect. We 

just haven’t sort of worked through in every detail exactly what 

those changes would mean operationally yet. 

Senator FEINSTEIN. Thank you very much. 

Chairman LEAHY. Thank you, Senator. 

16 

Senator Feingold. 

Senator FEINGOLD. Thanks, Mr. Chairman. I’m glad the committee is moving forward on Patriot Act reauthorization. I introduced legislation along with Senator Durbin and eight other senators that takes a comprehensive approach to fixing the USA Patriot Act and the FISA Amendments Act. 

It permits the government to conduct necessary surveillance but 

within a framework of accountability and oversight. I understand 

as you indicated, Mr. Chairman, of course that you have also introduced legislation. I look forward to working with you closely on 

these issues. 

I have a full statement that I ask be placed in the record. 

Chairman LEAHY. Without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. I also ask that letters in support of the Justice Act bill that we have introduced be 

placed in the hearing record as well. 

Chairman LEAHY. Without objection. 

Senator FEINGOLD. Mr. Kris, let me start by reiterating something you and I talked about previously, and that is my concern 

that critical information about the implementation of the Patriot 

Act has not been made public. Information that I believe would 

have a significant impact on the debate. 

I urge you to move expeditiously on the request that I and others 

in this committee have made before the legislative process is over. 

Now, in Suzanne Spaulding’s testimony for the next panel, she 

argues that additional safeguards are needed in the context of intelligence investigations because of the very broad scope of intelligence investigation. The secrecy with which they must be conducted and the fact that they often do not lead to prosecution. That 

is, we have to take into account that safeguards inherent to criminal investigations are simply not always present in the context of 

intelligence investigations. 

Mr. Kris, do you agree that additional vigilance is needed in the 

context of intelligence investigations? 

Mr. KRIS. Yes. 

Senator FEINGOLD. And in fact isn’t that what was demonstrated 

at least in part by the IG reports on national security letters? 

Mr. KRIS. Well, I think the problems that Mr. Fine found are significant. I think they have been remedied. I’m not sure that those 

are inherent in an intelligence use of NSLs, but, I mean certainly 

they are significant and they warrant attention and I think they 

have gotten a lot of attention. 

Senator FEINGOLD. Mr. Fine, would you agree that the lack of 

safeguards contributed to the misuse of NSLs? 

Mr. FINE. I think to some extent the fact that they were not 

transparent does produce an environment where there needs to be 

more significant vigilance. 

Senator FEINGOLD. Mr. Kris, as you know, the Patriot Act provided statutory authority for the government to obtain that special 

sneak and peak, criminal search warrants that allow agents to 

break into American homes and conduct secret searches without 

telling them for weeks, months or even longer. 

17 

It is true, isn’t it, that these searches can be conducted also in 

run of the mill criminal cases and do not require any connection 

to terrorism? 

Mr. KRIS. That’s true, both before and—— 

Senator FEINGOLD. In fact, according to a July, 2009 report of the 

Administrative US courts, isn’t that exactly how this authority has 

most recently been used? 

The report shows that in fiscal year 2008, sneak and peak search 

warrants were requested 763 times but only three of those initial 

requests, just three, were in terrorism cases? The vast majority 

were for drug cases. 

Now, is that your understanding of that report and does it concern you at all? 

Mr. KRIS. It is my understanding and I want to say thank you 

to your staff who alerted me and allowed me to read the report in 

advance of this hearing. It does say here that 65 percent of the, 

these are criminal sneak and peak were in drug cases. 

Obviously just to make something clear which I know you understand, but on the FISA side, the searches that we do pursuant to 

FISA are not exactly sneak and peak. They are generally covert altogether. So this authority here on the sneak and peak side on the 

criminal side is not meant for intelligence, it is for criminal cases. 

I guess it is not surprising to me that it applies in drug cases. 

Senator FEINGOLD. As I recall, it was in something called the 

USA Patriot Act which was passed in a rush after an attack on 9/ 

11 that had to do with terrorism. It didn’t have to do with regular 

run of the mill criminal cases. 

Let me tell you why I’m concerned about these numbers. That is 

not how this was sold to the American people. It was sold as stated 

on DOJ’s website in 2005 as being necessary ‘to conduct investigations without tipping off terrorists.’ 

I’m going to say it is quite extraordinary to grant government 

agents the statutory authority to secretly break into American’s 

homes in criminal cases and I think some Americans might be concerned that it has been used hundreds of times in just a single year 

in non-terrorism cases and that is why I am proposing the additional safeguards to make sure that this authority is available 

where necessary but not in virtually every criminal case and also 

to shorten the time period for notification. 

Mr. KRIS. Well, I don’t mean to quibble with you. I do want to 

just point out one thing which is before, and I was trying to carve 

out FISA, just to clarify that FISA is a different authority where 

it is covert, and also it puts, if I am correct on this, I believe two 

Courts of Appeals prior to the Patriot Act had authorizes sneak 

and peak under existing law. This was meant to be a codification 

of that doctrine. 

Senator FEINGOLD. Some courts permitted secret searches in limited circumstances before the Patriot Act as I remember, but they 

also recognize the need for notice unless a reason to continue to 

delay notice and it was demonstrated and they specifically said 

that notice had to occur within 7 days which is what we fought for 

at the time of the Patriot Act which is what our bill proposes. 

So I think you make a fair point that it was allowed to some extent. But without these protections, this is a dramatic change in 

18 

our general criminal law that doesn’t necessarily relate to terrorism. Thank you, Mr. Chairman. 

Chairman LEAHY. Do you want to respond to that, Mr. Kris. 

Mr. KRIS. Well, I was just going to sort of support Senator 

Feingold’s conclusion by saying that this report says the periods of 

delay range from 3 days to 365 days with 90 days being the most 

common period. So just based on the report you provided. 

Chairman LEAHY. Thank you. Senator Durbin. 

Senator DURBIN. Thanks, Mr. Chairman. My first run-in with librarians was at a very early age when they were infringing on my 

personal liberties in the East St. Louis Public Library in telling me 

to shut up and now librarians have taken a different role when it 

comes to individual rights and liberties on the national stage. 

It has become very vocal in considering the impact of some of our 

conversation on the privacy of individuals who use libraries. It led 

to former Attorney General Ashcroft characterizing librarians as 

hysterics and he went on to say that the Department of Justice has 

neither the staffing, the time nor the inclination to monitor the 

reading habits of Americans. Former Attorney General Gonzales 

said something along the same lines. 

In your testimony, Mr. Kris, about Section 215, you said it has 

not been used to ‘collect sensitive personal information on constitutionally protected activities such as the use of public libraries.’ 

However, we do know that under the previous administration, 

the Justice Department issued national security letters for the library records of innocent Americans. Isn’t that true? 

Mr. KRIS. Actually, I won’t dispute you on that, but I don’t have 

a specific recollection of that. 

Senator DURBIN. I think it is accurate. What I would like to ask 

is what is the Justice Department’s current policy on using national security letters on libraries? 

Mr. KRIS. Well, as you know, Section, now are you talking about 

national security letters or 215? Because national security letters 

unless I’m having a moment here, don’t get sent to libraries. It is, 

you know, RIPA, FICRA, those are specific financial. So I think you 

mean 215 orders. 

Senator DURBIN. There was testimony before our committee, 

George Christian? 

Mr. KRIS. Oh, you probably meant a 2709 letter. 

Senator DURBIN. A librarian who received an NSL for library 

records. 

Mr. KRIS. I understand. I’m sorry. I did have a moment there. 

I’m sorry. 

I mean, if it is within the ambit of statute, then I think we might 

use the statute in that way and there have been cases, I can think 

of an espionage case, a terrorism case and a conventional murder 

case I believe in which libraries have been used. 

Section 215, which is what I mistakenly thought you were referring to obviously expressly can apply to a library, hasn’t been used 

that way but could be. You wouldn’t I think want to declare a library a safe zone. 

Senator DURBIN. No, but in your words you called sensitive personal information on constitutionally protected activities such as 

the use of public libraries. 

19 

The Patriot Act allows the FBI to issue NSLs for sensitive personal information on innocent Americans, not just those that we 

have connected up or believe we can connect up to terrorist activities without a demonstration of that connection. 

As Mr. Fine has reported, the standard for issuing an NSL is 

‘‘can be easily satisfied.’’ For example, if an FBI field office wanted 

to identify someone who used an internet terminal at the Chicago 

public library, they could issue an NSL for the internet and email 

records of the library including the records of hundreds of ordinary 

innocent citizens. 

Now, we are talking about changing that for obvious reasons 

since as you characterize it and I agree, we are dealing with constitutionally protected activity. 

Would you agree that under current law, the Justice Department 

cannot guarantee innocent Americans that their library records, 

their activities, internet terminals and libraries for example are 

safe when the law allows the FBI agents to obtain these records 

without the approval of the Department of Justice and without any 

connection to a suspected terrorist act? 

Mr. KRIS. Well, I wouldn’t put it the way you just put it, Senator 

Durbin, but I take your basic point which is that there are statutes 

that allow this. Also on the criminal side, you know, Grand Jury 

subpoenas could be directed at libraries and have been. So the nature of an investigation at that stage is that the government has 

to sweep more broadly than just the individual who may end up 

being the defendant or identified as a terrorist precisely because 

they are trying to develop the case. 

So that is how I think I would put it. Not quite the way you put 

it. 

Senator DURBIN. And this is how our debate comes down. When 

you take the concept of minimization which basically says yes, keep 

us safe but don’t sweep into your net innocent Americans who are 

doing things that are ‘‘constitutionally protected’’ in your own 

words. 

I might also add that this reference, frequent reference here at 

the committee to the use of Grand Jury subpoenas, I hope you will 

acknowledge that the language that we are talking about here 

under 215 when it comes to gag orders for example, is substantially 

different than current language in the law when it comes to the 

use of Grand Jury subpoenas. Would you acknowledge that? 

Mr. KRIS. I do, and as I said in response to Senator Feingold’s 

questions, there are differences between ordinary criminal investigations and intelligence investigations. 

I mean, I do think that it is a legitimate policy debate to have 

and we are having it in an orderly fashion. 

Senator DURBIN. I would just like to close by saying I started off 

kind of with a negative view of librarians in my early life, but I 

want to salute them. 

Mr. KRIS. You have come to admire them more? 

Senator DURBIN. I have come to admire them more and salute 

them for the important role they play in this national debate. 

Thank you very much. Thank you. 

Chairman LEAHY. Thank you. When it comes to librarians, Senator Durbin, I would mention that one of the formative parts of my 

20 

life was in the library at the age of four in the—Library in Mount 

Pilier, Vermont. 

Ms. Holbrook, who was the librarian, and what she did to urge 

me to read. The library is much, much larger now and has a new 

wing partly paid for by some residuals from Batman movies. There 

is a long story behind that which I won’t go into here. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. I wanted to ask 

you both about two issues. The roving wire tap, I understand the 

need for it. I have seen the nuisance that one has to go through 

to track a phone or track an individual over multiple phones and 

other investigations from my prosecutor days and obviously the 215 

order has its purpose. I don’t think at this point the discussion is 

about whether or not to continue any of these authorities. The 

question is what refinements might be necessary. 

I am concerned as I think some of the other senators and witnesses have been about the question of the presumption that certain things are relevant. I ask first I guess, Mr. Kris, if you could 

tell me what effect a presumption has as a matter of kind of standard law. 

Mr. KRIS. Right. Well, Senator, from your days as a U.S. attorney 

and as a lawyer, you know a presumption is just what it sounds 

like. It pushes you toward the finish line of establishing what you 

need to establish. 

Senator WHITEHOUSE. But it has a particular effect, doesn’t it? 

Doesn’t it have the particular effect of shifting the burden of either 

production or persuasion in a particular matter? 

Mr. KRIS. I mean, I think in an ex parte setting like this one as 

opposed to in a—— 

Senator WHITEHOUSE. Precisely my problem with it. If as a matter of Horn Book law the presumption has the legal effect of shifting the burden of persuasion or proof to another party and you are 

in an ex parte proceeding where there is no other party, I would 

submit to you that we are using the wrong language and the wrong 

tools to work through the problem that that is designed to solve. 

Rather than continue to exist in a sort of fairyland in which a 

burden shifts to an empty chair and we all pretend to be satisfied 

with that set of procedures, we should maybe try to rethink how 

to do that in a more logical and sensible way that doesn’t defeat 

what a presumption is all about in the first place. 

I’m correct that there has never once been an adverse party that 

showed up in a 215 hearing. Not once. 

Mr. KRIS. Not to my knowledge, no. 

Senator WHITEHOUSE. And you would know. 

Mr. KRIS. There is a vacuum process, but not at the front end. 

I guess a couple of points though in response. I think it is a fair 

question. 

You are a very precise and careful technical lawyer to pick up 

on this. I guess two responses. The first is—— 

Senator WHITEHOUSE. One of many not unheard of. I mean, it 

isn’t something I just invited. This is a pretty well known problem. 

Mr. KRIS. I should just confine myself to answering the question, 

shouldn’t I? The first is in order to take advantage of the presumption under 215, we have to show in the statement of facts that we 

21 

are submitting certain things, the three elements that Senator 

Feinstein outlined before. 

So one point is just this presumption doesn’t come free. You have 

to make a showing at the front end in order to trigger it. So if that 

showing is satisfactory as a policy matter, then the issue evaporates. 

Also I think as a practical matter you could quibble with the use 

of presumption here along the lines you stated. Maybe it is more 

than just a quibble. But at the end of the day the fact remains we 

need to establish reasonable grounds to believe that the documents 

are relevant. 

If we can trigger the presumption by establishing those facts, we 

are most of the way home and you’re right, there is no opposing 

party to rebut. But the statute is still the same in terms of ultimately requiring a showing of relevance. 

Senator WHITEHOUSE. The other question in my time remaining 

has to do with the Lone Wolf provision which as has been indicated, has never been used. There is another sort of logical difficulty in its application in that it is hard to imagine that the proof 

that an individual is an agent of a foreign power which is one of 

the prerequisites for the Lone Wolf provision would not also include 

proof that they are working with shall we say a foreign power in 

which case it is hard to imagine that you would need the Lone Wolf 

provision. 

What is the difference between what is required to prove that 

somebody is an agent of a foreign power? Agency implies multiplicity. It is almost a legal impossibility to be acting purely alone 

and yet be the agent in the legal sense of that term of some other 

entity. 

If you could walk me through that conundrum, I’d appreciate it. 

Mr. KRIS. I’m going to come next time with a Horn Book. I think 

this one is genuinely a labeling concern. The way the statute was 

established in 1978, it defined two possible kinds of targets. Foreign powers and agents of foreign powers with the latter typically 

being an individual associated in one of the specified ways with the 

former. So Osama Bin Laden being an agent of Al Queda, Al Queda 

being the foreign power. 

When Congress enacted the Lone Wolf provision, they said we 

are going to call this individual an agent of a foreign power because 

that is where it is going to fit in terms of the headings of the statute. But obviously the whole point—— 

Senator WHITEHOUSE. But he doesn’t really have to be one? 

Mr. KRIS. That’s right. I mean, the whole point of the Lone Wolf 

provision is that there isn’t a foreign power, there isn’t an international terrorist group as there normally would be. 

Senator WHITEHOUSE. And yet that remains a nominal requirement for the Lone Wolf authority, doesn’t it? 

Mr. KRIS. Well, I don’t think it’s a nominal requirement. This is 

what I mean when I say it is really just a labeling requirement. 

They are calling this person an agent of a foreign power and so 

that definition which is used throughout the statute is a convenient 

thing to hitch your wagon to here so that you don’t have to re-write 

the entire statute all the way through. But I don’t think it is meant 

22 

to fool anybody or that Congress misunderstood when they enacted 

it that there is some foreign power lurking behind this guy. 

There may very well be, but whether there is and we just can’t 

establish it or whether there is indeed no foreign power because he 

is a genuine free agent I think it is clear the statute is meant to 

cover that and they call him an agent of a foreign power because 

it fits in with the grammar of the rest of the statute. 

Senator WHITEHOUSE. My time has expired. 

Chairman LEAHY. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman, and 

thank you to both of you for being here. As I said during the confirmation hearing for Attorney General Holder, I support the extension of these three provisions. I think that they are important. 

I first wanted to follow up on what Senator Whitehouse was talking about with the Lone Wolf provisions. Do you see given the fact 

that it hasn’t been used, are there some changes that should be 

made to it to make it more usable? 

Mr. KRIS. It is hard for me to imagine, I mean, there are a number of policy judgments involved in the Lone Wolf provision. For example, it does not apply to U.S. persons. It would be a major policy 

shift if you extended this thing to U.S. persons as opposed to nonU.S. persons. 

Senator KLOBUCHAR. Agreed. 

Mr. KRIS. And I’m not advocating one way or the other on that 

from where I sit today. 

I think it is important to have this provision. The fact that we 

haven’t used it yet doesn’t mean that we won’t use it or won’t need 

it at some point in the future. As I said, I think in the letter that 

we sent on September 14th to Senator Leahy and in my testimony, 

in the age of the internet and decentralized Al Queda, I think there 

is the possibility of a person who is inspired by but not a member 

of an international terrorist group or the possibility of someone 

who is a member of a group but then breaks with the group for 

whatever reason. Perhaps it is not sufficiently radical for his 

tastes. 

In either of those two situations, the person would be engaged 

in a national terrorism, wouldn’t be any longer or ever a member 

of a group and would be I think someone who we would want to 

be able to cover. So I think we should reenact it and I don’t, or reauthorize it. I guess I don’t have specific ideas for changing it that 

I would advance on behalf of the administration. 

Senator KLOBUCHAR. OK. Thank you. You started out with your 

testimony saying that you’re willing to work with Congress on specific proposals and one of the reasons we have these sunsets is so 

we can see if there is some improvements or changes we can make. 

But your testimony didn’t address any possible changes. Should 

we take this to mean that the DOJ has not found any significant 

problems in either the structure or exercise of these authorities 

that would warrant modification? 

Mr. KRIS. Well, I think what has actually happened is that Congress has seized the initiative here. Senator Leahy has dropped a 

bill, Senator Feingold and others as mentioned, and so what we are 

doing right now is we are looking hard at those bills and there are 

a lot of provisions in them, a very complicated area of law. We are 

23 

reviewing them aggressively and trying to figure out whether the 

provisions that are suggested there will work for us as is or perhaps with modifications. 

So I think the dialog is joined because you have put several provisions on the table for us to look at and we are doing that. 

Senator KLOBUCHAR. Senator Whitehouse had also said—through 

wire taps and sought authorization of wire taps on a state level, 

county attorney level, and so I know how complicated these minimization procedures are and what protections are in place. 

Do you think that the protections that we have in place are sufficient to protect innocent Americans whose personal information 

might be caught in either a roving wire tap or Section 215? 

Mr. KRIS. I think the existing law does protect very well and I 

think in part that is because of the diligence of the FISA court 

which pays very careful attention to the way these authorities are 

used. 

That doesn’t mean of course that they can’t be improved. There 

is a lot of different ways to build these statutes and combine various elements and that is why we are open to working with you 

without condemning the existing law. 

Senator KLOBUCHAR. And then Mr. Fine’s testimony states that 

the FBI has said that the department has dropped the new minimization procedures for business records but these procedures 

haven’t been issued. 

When do you think these will be issued, and could you discuss 

how they might differ from the current minimization procedures? 

Mr. KRIS. I am always reluctant to give a prediction about the 

timing of a deliverable, but it does seem to me that we are getting 

close. In terms of the content, I would be reluctant to discuss that 

in an open hearing. 

Senator KLOBUCHAR. OK. In your review of the minimization 

procedures, did you see any problems that deserve our attention? 

Do you want to not discuss that either right now? 

Mr. KRIS. Yes, I think I should defer getting into the possibly 

classified details of anything there. 

Senator KLOBUCHAR. OK. On the Lone Wolf provision that we 

just talked about, and I will ask this as my last question. Do you 

believe there is any gaps in the definitions? I want to go back to 

that again, that we could change to make it more usable that 

wouldn’t inhibit any intelligence gathering. 

Mr. KRIS. We are really not seeking any expansions of the definitions of foreign power or agent of foreign power at this time. 

Senator KLOBUCHAR. All right. Thank you very much, Mr. Kris. 

Chairman LEAHY. Thank you. Mr. Kris, I made a note that many 

of us have had briefings on some of the aspects of the classified 

matters that you’re talking about. We have several members of the, 

in both parties by tradition in the intelligence committee on the Judiciary Committee for that. 

If you feel as you look over your answers there are things that 

you need to be answered in a classified version, we can arrange to 

have that provided for Senators and cleared staff. So if you feel 

that you are unable to give a full answer to Senator Klobuchar’s 

question and anybody else and wish to follow up, please avail yourself of that and we will arrange it. 

24 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. Mr. Fine, I am 

going to ask you a question soon. 

Mr. FINE. Okay. I’m waiting for it. 

Senator FRANKEN. First, Mr. Kris, I’m not a lawyer like all the, 

my colleagues here now nor a careful lawyer like you singled out. 

But I did some research and most Americans aren’t lawyers. 

So I’ve got a question on the roving wire tap thing and I think 

I understand why it is important because of the terrorists and 

other people we suspect of being terrorists use different phones, 

right? 

Mr. KRIS. Yes. 

Senator FRANKEN. Okay. And that’s why it is there. But under 

the Patriot Act, the roving wire tap provision does not require law 

enforcement officials to identify the individual or the phone or the 

computer that will be tapped, is that right? 

Mr. KRIS. No, I don’t think so. The statute requires roving or not 

that the government identify, provide the identity if known or a description of the specific target. 

Senator FRANKEN. A description of it, but not the actual name. 

Mr. KRIS. Not always the name, but you have to say something 

about the specific target. 

Senator FRANKEN. Okay. That is what brings me to this because 

they give you this when you get in the Senate. It is a constitution, 

and I was sworn to uphold it or support it anyway and protect it. 

This is the Fourth Amendment. The right of the people to be secure in their persons houses, papers and effect against unreasonable searches and seizures should not be violated and no warrants 

shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the 

persons or things to be seized. 

Now, it seems to me, that is pretty explicit language. I was wondering if you think that this is consistent with the Fourth Amendment. 

Mr. KRIS. I do think it is and I kind of want to defer to that 

other third branch of government. The courts in looking at—— 

Senator FRANKEN. I know what they are. Go ahead, sir. 

Mr. KRIS. The courts prior to FISA, prior to FISA every Court 

of Appeals to squarely consider the question had actually upheld 

warrantless foreign intelligence surveillance, that is without an advanced court order. The Supreme Court had declined to hold that 

a warrant was required in the so called Keith case for foreign intelligence surveillance. So I think you begin with that baseline. 

FISA then by requiring advanced judicial approval goes above 

and beyond what the constitution requires for this kind of foreign 

intelligence surveillance. I do think there is an argument and probably a good argument that the language that I read to you before, 

that even if you cannot identify the particular target but that you 

describe the specific target that it would satisfy the particularity 

clause that you just cited. 

Senator FRANKEN. Thank you. I want to get to Mr. Fine. 

Mr. FINE. Thank you. 

25 

Senator FRANKEN. You’re welcome. When the FBI wants documents for an investigation, it can either go to the FISA court or it 

can get one of these national security letters, right? 

Mr. FINE. Right. 

Senator FRANKEN. And for national security letters you don’t 

need approval of the FISA court, right? 

Mr. FINE. You don’t need a court approval for a national security 

letter. 

Senator FRANKEN. Okay. So I’m wondering what is to keep the 

FBI from always using the national security letter. So let me ask 

you, are national security letters now being used to get around 

higher requirements of the FISA courts for formal business 

records? 

Mr. FINE. National security letters only apply to certain types of 

information from certain providers. So it can be used in those contexts. It cannot be used in other contexts. 

So what limits it is the five statutes under which national security letters are authorized which specify very clearly where they 

can be used and where they can’t be used. That is why, for example, the importance of Section 215 orders because there are certain 

types of records and things that can’t be obtained by national security letters that have to be obtained by Section 215 orders. 

Senator FRANKEN. I’m not sure that was, I didn’t understand. 

Was that a yes or a no? 

Mr. FINE. No, I don’t think they are using it to get around the 

law. 

Senator FRANKEN. Okay. Let me ask you, have they ever been 

used to get around? 

Mr. FINE. I think they have improperly used them. I don’t think 

it was intentional, that there were instances where we know we 

can’t get these records but we are going to use them anyway. I 

think it was because of sloppiness, lack of training, lack of supervision, lack of knowledge, and those are the things that needed to 

be improved and rectified. That is what we pointed out in our report. I think the FBI has made some improvements in that area, 

but I think we need to still monitor it and oversee that. 

Senator FRANKEN. Okay. That is just a concern of mine that, you 

know, if they can be misused and have been misused, that they will 

be misused in the future. That is a concern of mine. 

If men were angels, there would be no need for government. I 

think that’s Madison. You know, if angels were the government, we 

wouldn’t, you know, need external controls. So I worry about the 

next administration might not be as trustworthy as this one or the 

last one. 

Mr. FINE. That’s why I believe there needs to be, as I stated in 

my statement, aggressive, important oversight mechanisms that 

don’t rely on individuals that have controls on this so regardless of 

the administration there will be ways to verify and oversee and determine if they have been used properly or not. That is properly 

our role and partly other’s role as well including national security 

and Congress for holding these important hearings. 

Senator FRANKEN. Thank you. I have used my time. 

Chairman LEAHY. Thank you. I will submit for the record a resolution to the Vermont Library Association a letter from the ConVerDate Nov 24 2008 14:15 Apr 06, 2010 Jkt 055610 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55610.TXT SJUD1 PsN: CMORC
26 

stitution Project as part of the Leahy/Cardin/Kaufman bill statement submitted to ACLU and others. 

I was sort of thinking, I was pulling out some notes here as Senator Franken was asking this question. We have the FISA authority, and I direct this to you, Mr. Kris. We have the FISA authority 

to obtain tangible things such as library or medical business 

records. 

Then we have the Title 18 Authority to issue national security 

letters. Now, you testified earlier and we have all agreed these 

can’t be issued based solely on conduct protected by the First 

Amendment but the Inspector General found that in one case the 

FBI was twice denied tangible things ordered by the FISA court 

and the FISA court which normally grants these turned them down 

because they said the underlying conduct was protected by the 

First Amendment and there is no other basis in which to issue an 

order. 

So the FBI then just turned around and issued a national security letter based on the exact same conduct protected by the First 

Amendment having been turned down by the court they went and 

did it administratively. 

I think that is why you have a lot of Americans on the right and 

left who are worried about intrusive and unchecked government 

surveillance. We all want to be safe. We all want to catch criminals. That is not the issue. 

The issue though is each one of us is our own privacy. The vast 

majority of Americans are law abiding Americans. If there is, the 

material is picked up, they go to data banks and then they can’t 

get on an airplane, they can’t get a job, they can’t, the kids can’t 

get a student loan, and you know all the horror stories. 

We had a former longest serving member of this committee, the 

late Senator Ted Kennedy was eight or nine or ten times refused 

to go on one of the, an airplane or a flight he had been taking for 

40 years back to Boston because he somehow is named on one of 

these lists. 

So my question is, and I think this is what Senator Franken was 

saying too, what do we do to ensure this sort of thing isn’t repeated? I mean, you talk about standards and whatnot. How do 

you ensure that these standards are followed? 

I mean, I know you follow them. I know the Attorney General 

follows them. I know the Director will follow them. Well, how do 

we make sure the agents out in the field follow them? 

Mr. KRIS. Senator, it is an excellent question and I think a very 

trenchant one. I mean, I think there is a variety of different interlocking methods that can be used to protect against misuse or 

abuse. 

The first is writing the law, setting the standards at a certain 

level and that is something you can do through amending the statute. The next is within the executive branch through training, 

oversight by Mr. Fine’s office, in some cases my office, the National 

Security Division does oversight of the FBI. 

There are electronic systems, for example, for national security 

letters. The FBI developed an electronic subsystem that essentially 

ensures that all of the requirements are met before a letter can be 

issued so we can develop internal systems. 

27 

They have an Office of Integrity and Compliance as Mr. Fine 

talked about that does oversight, and obviously congressional oversight whether fueled by a sunset provision or just more generally 

about the use of the authorities can provide an effective check, and 

in some cases, the courts. So a variety of different methods. 

Chairman LEAHY. Let me use one concrete. In the 2006 USA Patriot Act Reauthorization, we required, and I helped write this, the 

Attorney General to adopt procedures to minimize retention and 

improper dissemination of private information that was obtained 

by Section 215. 

Going back to what I was referring to earlier about all the material that is in data banks floating around there in every one of us. 

Again, I know most Vermonters are somewhat concerned about 

their privacy but I think they are in every state. 

Minimization procedures are supposed to protect the constitutional rights of all of us. But Mr. Fine, you found in your March 

2008 report these safeguards that everybody agreed on, Republicans, Democrats, everybody else, minimization. They were never 

put in place. The Attorney General simply recycled the FBI’s national security investigation guidelines, adopted those as the interim minimization procedures you found were woefully inadequate. 

They didn’t follow the statute. It is one thing to talk about oversight and all that and the reauthorization, but the statute is not 

followed and it is a concern. Now we have a new Attorney General 

who followed up on your recommendation that specific minimization procedures be developed and adopted. Do we have those procedures now? 

Mr. FINE. No, they have not been issued. As I pointed out in my 

statement, they adopted these interim procedures that were not 

specific that they believe that comply with the statute, but we believe that there ought to be those specific minimization procedures 

as contemplated by the Patriot Reauthorization Act that do apply 

specifically to Section 215 orders and they have been in draft, they 

have been in draft for a long time. We think they ought to be considered, finalized and issued. 

Chairman LEAHY. I will, my time has expired. I will follow up 

more on this. I just wanted to get the information. But if it’s not 

something you need, I want to get it out of the data banks. I don’t 

want it to cloud over me when I get on an airplane or when my 

constituents do or when they apply for a job or whatever else it 

might be. 

I won’t go into discussions of George Orwell and everything else, 

but these things can be frightening. One of the great things about 

this country is we have always said we’d balance. Senator Sessions? I don’t want material in there on Senator Sessions that 

shouldn’t be there. 

Senator SESSIONS. Well, 1984 came and went and the communists didn’t get us. I’m glad to have been on the right side of 

that battle. 

The idea of keeping, maintaining confidentiality of an investigation, Mr. Kris, can be exceedingly important in a national security 

matter, a terrorism matter. From what I see in the paper, and I 

don’t have any inside information, I believe the New York Times 

28 

reported again today that in this case, arrests have been made in 

the Afghan case, that the New York police wanted to inquire of an 

Iman about the individual, or an individual and asked him not to 

reveal that but asked him for information about this person as they 

tried to figure out what may have been happening. 

What I understand from the reports is that he went straight and 

reported it to one of the members connected to this individual and 

that may have been, caused the entire investigation to be altered 

and made perhaps more difficult to identify people that are involved in a plot to attack and kill American citizens. 

Isn’t that a legitimate concern and can’t we do that based on historic settled principles of American constitutional law? 

Mr. KRIS. It is a very grave concern when information that compromises an investigation is leaked for the reasons that you stated. 

It can have very profound effects on our ability to investigate matters and I think existing law in the confidentiality requirements 

and the secrecy requirements exist precisely for that reason, in 

order to protect the secrecy of the intelligence investigations because if they are made public, they can be compromised. 

Senator SESSIONS. And it hasn’t always been recognized that 

there is a huge difference between surveillance and investigations 

of foreign powers, espionage and counter espionage than investigations of American citizens. 

Mr. KRIS. There has historically been recognized in law and in 

policy, yes, a distinction between security threats based abroad, 

that is foreign security threats on the one hand, domestic security 

threats, domestic terrorism and ordinary law enforcement on the 

other. 

Senator SESSIONS. I think Senator Franken’s comments about 

the Fourth Amendment, the right of the people to be secure in 

their houses, papers, effects against unreasonable searches and seizures. 

So we have set up a system by which you have to go to a Federal 

judge in a Federal case and submit extensive evidence to justify a 

search. But I would also want to emphasize to my colleagues and 

Senator Franken, records held in a bank are not your records, they 

are the bank’s records. 

In a motel sign-in sheet that could be decisive in a case is not 

the person who registered’s records, it is the motel’s record. That 

is why the courts have always recognized that it does not violate 

this court. 

Now, when I was watching Senator Franken I talked about 

Dragnet, Joe Friday and company. They used to go out to the motel 

and get the records to see if old Billy checked in. And they would 

give it to them. Now because of the laws and lawyers, banks and 

everybody often demand subpoena or some sort of official document 

before they will turn it over because they don’t want to be sued by 

somebody and have to defend the case whether they win or lose. 

But the principles are pretty much the same here. You have a 

diminished expectation of privacy and records held by independent 

third parties. Isn’t that right? 

Mr. KRIS. I mean, I certainly agree under the Miller case in particular that you do have a diminished expectation of privacy in 

such materials and in some cases Congress has seen fit to enact 

29 

protections by statute by such material. For example, ECBA is a 

major example. 

Senator SESSIONS. Now, with regard to these nondisclosure orders, which as a former prosecutor, these investigated drug organizations, one of the most delicate, important matters is when you 

start making arrests. 

If you arrest some low level guy the first time you have a bit of 

evidence, the rest of them scatter. They flee, they cover their 

tracks. They disappear. That is even more critical in a terrorism 

investigation to me. 

But isn’t it true that it takes the direction of the FBI or his high 

level designee to justify, certify that a non-disclosure order is needed, and isn’t that one thing that the Patriot Act did to ensure that 

it is not done willy nilly without some thought and oversight? 

Mr. KRIS. Certainly with respect to Section 215 a relatively high 

ranking person makes a submission and then the court grants an 

order. With respect to NSLs, there is no court order and the Doe 

decision from the Second Circuit found First Amendment difficulties with that and suggested a so-called reciprocal notice procedure 

that the FBI has adopted which I think responds to that concern. 

Senator SESSIONS. Well, as a Federal prosecutor, I remember distinctly that we would issue subpoenas in FBI cases. The Grand 

Jury was not advised until later. No Federal judge was given any 

notice of it and the FBI went out and served it. 

They were always irritated as the United States attorney, Mr. 

Whitehouse, my colleague here, will know that the DEA could get 

a subpoena to go out to the telephone company or the bank and get 

records without asking the U.S. attorney’s permission. 

It is not a historic alteration of American criminal jurisprudence 

to have a national security letter in my opinion, and it is in an area 

that is very, very, very important to our safety. Thank you. 

Senator WHITEHOUSE. Thank you, Senator Sessions. A question 

for Mr. Fine. Your report when it first came out on the national 

security letters—— 

Senator SESSIONS. Mr. Chairman, can I interrupt you just to say 

that my Republican colleagues, at least three are in the Finance 

Committee trying to do the health care thing. They would have 

been here otherwise. I wanted to state that for the record. It is a 

matter I think all of us take seriously. 

Senator WHITEHOUSE. It is for the record that we’re trying to do 

the health care thing? 

Senator SESSIONS. They are trying to do a good health care bill. 

Senator WHITEHOUSE. When the report came out, it dealt very 

heavily with operational issues, failures out in the field of people 

to adhere to the different regulations and statutory requirements 

that had been put in place for the issuance of those national security letters. 

One of the points that I raised with the Director at the time was 

that it also showed a very significant organization and management failure. These national security letters were issued pursuant 

to statutory authority that a lot of people in this building had real 

reservations about. Republicans and Democrats alike, and set a lot 

of markers saying all right, we will give you this, we will trust you, 

but here is what you have got to do. 

30 

In terms of the credibility of the Federal Bureau of Investigation 

as an institution in this building, one would have thought that 

there would have been somebody at the very highest level reporting 

to the Director saying wow, we got this new authority under very 

strict requirements and kind of on trust in the confidence that we 

would follow those rules. Therefore, to us as an institution it is 

really important that we follow those. 

I, as that imaginary person, am really, it is my job to make sure 

of this so that when we come back for other authorities later on, 

we don’t get into the cry wolf problem of hey, we trusted you last 

time, you completely blew it and now you don’t have the same trust 

with us any longer. 

That struck me as being a significant institutional gap that the 

FBI wouldn’t have somebody in their leadership whose job it was 

to basically protect that flank of theirs from their own junior folks’ 

lack of adherence to these different things. 

In your review of this on an onging basis, are you comfortable 

not only that at an operational level the FBI has improved its adherence to the various protocols for national security letters, but at 

the management level they have a sensitivity to the importance of 

adhering to whatever the trust is that Congress has given them 

and that there is more management oversight of all compliance and 

adherence and regulatory measures than this displayed? 

Mr. FINE. Yes. I think that as a result of our report in March 

2007 the FBI was—by it and you are absolutely right, there was 

an institutional failure. 

They received these very important and vital authorities, but 

they did not take measures to ensure that they would be used 

properly and they just assumed that it would be used properly. 

When we came out with our report, it was very eye opening for 

them and I do remember even at the time Director Muller stating 

that clearly, stating he took responsibility in stating to be honest 

that he was at fault for not putting in the measures to ensure that 

these authorities that they are given are used properly. 

You cannot simply put out a memo and then think it is all going 

to be followed in the 56 field offices of the FBI. You have to make 

sure that they are trained constantly, that they are supervised, 

that they are overseen and that they are monitored and audited. 

I think they have made strides in that direction. They made significant progress. 

I mentioned the Office of Integrity compliance, they did inspection division reviews, we have national security division reviews, 

but I don’t think being an Inspector General that you can simply 

say that is going to solve all the problems and you can stop doing 

it and we can rest assured. You have to continually be vigilant on 

it and we are going to do a review of the Office of Integrity Compliance. 

Are they fulfilling their stated mission? Are they having an impact? Or was this simply another office that was created that is not 

being effective? We don’t know that for sure. We are going to determine that. But that is what the FBI also has to do on an ongoing 

basis rather than simply assuming that the measures they have 

implemented are going to be effective. 

31 

Senator WHITEHOUSE. And it is your observation that as an institutional wake up call, this incident did in fact have that effect? 

Mr. FINE. I think it did. I think it was a very, very significant 

eye opening experience for them when they saw how significant our 

findings were and that they hadn’t found them, that we found 

them and exposed them and they were not happy about that. 

Senator WHITEHOUSE. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chair. Senator Whitehouse 

did actually follow up with what I wanted to follow up with. I just 

want to make it clear to Mr. Kris that what I was talking about 

was the roving wire taps and when Senator Sessions referred to it, 

I think it was Section 215. So those are very different issues. 

I understand that hotel records aren’t the record of the person, 

but when you are doing a roving wire tap and you’re not telling the 

FISA judge either the identity of the person or exactly where you 

want to tap them, that just caused me concern on the reading of 

the amendment in the constitution. 

Mr. KRIS. Yes. No, I understood absolutely the difference there. 

Senator FRANKEN. Okay. 

Mr. KRIS. You have raised what I consider to be a particularity 

clause in effect a problem that the warrant or the order under 

FISA is not sufficiently precise and particular in specifying exactly 

what is to be done. 

I tried to give you an answer to that question, but I think we—— 

Senator FRANKEN. Okay. I just wanted to make it clear that, because in response to Senator Sessions, I don’t think you made the 

distinction or made it clear that there was a distinction between 

what I was asking and what Senator Sessions was discussing. 

Mr. KRIS. Yes, sir. There is a very significant distinction between 

Section 215 and FISA collection. I mean, what we are talking about 

in a roving wire tap or an ordinary wire tap is the collection of content of communications. That enjoys much greater constitutional 

protection than do say business records that are held by a third 

party absolutely. 

Senator FRANKEN. Okay. I just wanted to make that clear. Thank 

you. No further questions. 

Senator WHITEHOUSE. All right. I thank the witnesses very much 

for their testimony. We will take a minute or so to reset the room 

for the second panel and then we will proceed with the hearing. 

[Off the record at 11:48 a.m.] 

[On the record at 11:51 a.m.] 

PANEL II 

Senator WHITEHOUSE. The hearing will come back to order. Why 

don’t I begin by asking the various witnesses to stand and we can 

get them sworn. 

Do you affirm that the testimony you’re about to give before the 

committee will be the truth, the whole truth and nothing but the 

truth so help you God? 

Group Answer. I do. 

Senator WHITEHOUSE. Please be seated. We have a particularly 

distinguished panel here this morning and I would like to welcome 

all three witnesses. I am delighted that they are here. 

32 

I think what I will do is make all three introductions right away 

and then we will proceed across the panel beginning with Ms. 

Spaulding. 

Suzanne Spaulding is a Principal with Bingham Consulting 

Group and of counsel to Bingham McCutchin in Washington, DC. 

She has spent over 20 years handling national security issues for 

Congress and the Executive Branch, including serving as Assistant 

General Counsel out at the CIA, Minority Staff Director for the 

House of Permanent Select Committee on Intelligence, General 

Counsel for the Senate Select Committee on Intelligence and as 

Legislative Director to Senator Arlen Specter. 

Kenneth Wainstein is currently a partner at O’Melveny & Myers 

where he works in the white collar crime group. Mr. Wainstein is 

the first Assistant Attorney General for National Security serving 

in the Bush Administration. He also served as Homeland Security 

Advisor to President George W. Bush and as a United States Attorney for the District of Columbia. 

Ms. Lisa Graves is the Executive Director of the Center for 

Media and Democracy at the University of Wisconsin. She has 

served as a Senior Advisor in all three branches of the Federal 

Government and is a leading strategist on civil liberties and constitutional protections. 

She served as Chief Nominations Counsel to Senator Leahy from 

2002 until 2005. We welcome you back to the Judiciary Committee. 

We welcome all of the witnesses. We are honored to have you with 

us. Those of you who I have had the experience of their work in 

public service, I am particularly grateful to have you back here 

today. Thank you for your service. 

Suzanne Spaulding. 

STATEMENT OF SUZANNE E. SPAULDING PRINCIPAL, 

BINGHAM CONSULTING GROUP, WASHINGTON, DC 

Ms. SPAULDING. Thank you, Acting Chairman Whitehouse, Ranking Member Sessions and members of the committee. Thank you 

for your invitation to participate in today’s hearing on Ensuring 

Liberty and Security. 

Earlier this month we marked another anniversary of the attacks 

of September 11th. In the 8 years since that indelible manifestation 

of the terrorist threat, we have come to better understand that respect for the constitution and the rule of law are a source of 

strength and can be a powerful antidote to the twisted lure of the 

terrorists. 

In fact, after spending almost 20 years working national security 

and terrorism issues for the government, I am convinced that this 

approach is essential to defeating the terrorist threat. 

Given this national security imperative, Congress should use this 

opportunity to examine more broadly ways to improve our overall 

domestic intelligence framework, including a comprehensive review 

of FISA, national security letters, attorney general guidelines and 

applicable criminal investigative authorities and I would encourage 

the administration to do the same. 

This morning, however, I will focus my remarks on the 

sunsetting provisions that are the focus of this hearing. Sections 

215 and 206 both have corollaries in the criminal code. Ultimately, 

33 

however, important safeguards were lost in their translation into 

the intelligence context. 

Section 206, for example, was intended to make available an intelligence surveillance, the roving wire tap authority that criminal 

investigators have. This was an essential update. However, there 

are specific safeguards in criminal Title 3 provision that were not 

carried over to FISA, requirements that provided significant safeguards designed to protect Fourth Amendment rights of innocent 

people. 

Their absence in Section 215 increases the likelihood of mistakes 

and the possibility of misuse. In addition, in the criminal context 

where the focus is on successful prosecution, exclusionary rules 

serve as an essential deterrent against abuse, one that is largely 

absent in intelligence operations where prosecution may not be the 

primary goal. 

This highlights the care that must be taken when importing 

criminal authorities into the intelligence context. And why it may 

be necessary to include more rigorous standards and other safeguards. I have suggested in my written testimony some ways to address these concerns. 

Similarly, Section 215 governing orders for tangible things attempted to mimic the use of Grand Jury or administrative subpoenas in the criminal context. However, criminal subpoenas require some criminal nexus, FISA’s 215 does not. 

Moreover, the Patriot Act amendments broaden this Authority 

well beyond business records to allow these orders to be issued to 

obtain any tangible thing from any person. This could include an 

order compelling you to hand over your personal notes, your daughter’s diary or your computer. Things to which the Fourth Amendment clearly applies. 

Again, in my written testimony I have tried to suggest ways to 

tighten the safeguards without impairing the national security 

value of this provision. In the interest of time, however, I will move 

to the Lone Wolf provision. 

Four years ago I urged Congress to let the Lone Wolf provision 

sunset and I reiterate that plea today. The administration admits 

that Lone Wolf authority has never been used but pleads for its 

continuation just in case. 

The problem is that this unnecessary provision comes at a significant cost of undermining the policy and constitutional justification for the entire FISA statute, a statute that is an extremely important tool for intelligence investigations. 

Legislative history, court cases before and after the enactment of 

FISA including two cases from the FISA court itself make clear 

that this extraordinary departure from Fourth Amendment standards is justified only by the unique complications and secrecy requirements inherent in investigating foreign powers and their 

agents. 

Unfortunately instead of repealing or fixing Lone Wolf, Congress 

expanded it by adding a person engaged in proliferation. There is 

no requirement that this activity be unlawful or that the person 

know that they are contributing to proliferation. 

So someone who is involved in completely legal sales, for example, of dual use goods, unbeknownst to her that are being sold to 

34 

a front company could be considered to be engaged in proliferation 

and have all of her phone conversations and emails intercepted and 

her home secretly searched by the United States government. 

As a former legal advisor to the intelligence community’s nonproliferation center and executive director of a congressionally 

mandated weapons of mass destruction commission, I fully understand the imperative to stop the spread of these dangerous technologies. 

However, there are many tools available to investigate these activities without permitting the most intrusive and secretive techniques to be used against people unwittingly involved in legal activity. 

In conclusion, let me commend the committee for its commitment 

to ensuring that the government has all the appropriate and necessary tools at its disposal in this vitally important effort to 

counter today’s threats and that these authorities are crafted and 

implemented in a way that meets our strategic goals as well as our 

technical needs. 

With the new administration that provokes less fear of the misuse of authority, it may be tempting to be less insistent upon statutory safeguards. On the contrary, this is precisely the time to seize 

the opportunity to work with the administration to institutionalize 

appropriate safeguards in ways that will mitigate the prospect for 

abuse by future administrations or by this administration in the 

aftermath of an event. Thank you. 

Senator WHITEHOUSE. Thank you very much, Ms. Spaulding. 

Mr. Wainstein, welcome back to the committee. Please proceed. 

STATEMENT OF KENNETH L. WAINSTEIN PARTNER, 

O’MELVENY & MYERS, LLP, WASHINGTON, DC 

Mr. WAINSTEIN. Thank you very much, Chairman Whitehouse. It 

is very good to be back here again. 

Senator WHITEHOUSE. Good to have you back. 

Mr. WAINSTEIN. Chairman Whitehouse, Ranking Member Sessions, members of the committee, thank you very much for holding 

this important hearing and for soliciting our views about the USA 

Patriot Act. 

Today I want to discuss the three sunsetting provisions and the 

reasons why I believe they should all be reauthorized. As you well 

know, the Patriot Act was passed in late October, 2001 within a 

mere 45 days after the 9/11 attacks. Four years later in 2005, Congress in its enduring credit undertook a lengthy process of carefully 

scrutinizing each and every provision of the Patriot Act, a process 

that results in the Reauthorizaton Act that provided significant 

new safeguards for many of the original provisions. 

We are now at a point where the authorities and the Patriot Act 

are woven into the fabric of our counterterrorism operations and 

have become a critical part of our defenses against what President 

Obama has aptly described as Al Queda’s ‘‘far reaching network of 

violence and hatred.’’ 

This is particularly true of the three provisions that are subject 

to reauthorization this year. First, the roving wiretap authority. 

First, this provision allows agents to maintain continuous surveillance as a target moves from one telephone or communication deVerDate Nov 24 2008 14:15 Apr 06, 2010 Jkt 055610 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55610.TXT SJUD1 PsN: CMORC
35 

vice to another which is standard tradecraft for many surveillance 

conscious spies and terrorists. 

This is a critical investigative tool and it is one that criminal investigators pursuing drug traffickers know their regular criminals 

have been able to use for years. 

It is especially critical nowadays given the proliferation of inexpensive cell phones, calling cards and other innovations that make 

it easy to dodge surveillance by rotating communication devices. 

While some have raised privacy concerns about this authority, 

the reality is it has a number of safeguards built into it to make 

sure that it is used appropriately. For example, it is specifically 

limited to those situations where the government can show to the 

FISA court that the target is swapping cell phones or otherwise 

thwarting the government’s surveillance efforts and it requires the 

government to keep the FISA court fully apprised with detailed reports whenever they move their surveillance from one communication device to another. 

Given the narrow application of the statute, given the FISA 

court’s oversight of the roving surveillance and given the absolute 

imperative of being able to maintain uninterrupted surveillance on 

terrorists and spies who are in our midst, there is no question in 

my mind that the roving wiretap authority should be reauthorized. 

Now, on to Section 215. Section 215 authorizes agents to get a 

FISA court order that will compel businesses to produce the same 

kind of records that law enforcement officers and prosecutors have 

always been able to obtain to grand jury subpoenas. 

Prior to the enactment of Section 215, our national security personnel were hamstrung in their effort to obtain business records 

because the operative statute at the time limited those orders only 

to certain types of businesses and required a higher evidentiary 

standard than grand jury subpoenas did. 

Section 215 addressed these weaknesses by allowing these orders 

to be used to get records from any businesses or any entities and 

by squaring the evidentiary standard with the traditional relevant 

standard used for grand jury subpoenas. 

At the same time, Congress built in a number of safeguards that 

protect against misuse and in fact make Section 215 significantly 

more protective of the civil liberties than the grand jury subpoenas 

that are issued by the hundreds or thousands by criminal prosecutors around the country every day. 

For example, as Ranking member Sessions pointed out earlier, 

unlike grand jury subpoenas that a prosecutor can issue or his or 

her own, a 215 order must be approved by a Federal judge on the 

FISA court. Unlike the subpoena authority, Section 215 also does 

several other things. 

It specifically bars issuance of an order if the underlying investigation is focused solely on First Amendment activities. It requires 

regular and comprehensive reporting to Congress and it imposes a 

higher standard when the government seeking library records or 

other sensitive records. 

With these safeguards in place, there is simply no reason in my 

mind that we should be returning to the days when it was easier 

for a prosecutor to get records in a simple assault case than it was 

for national security investigators to obtain records that might help 

36 

defend our country against a terrorist attack. Section 215 should 

be reauthorized. 

Last, the Lone Wolf provision. This provision allows the government to conduct FISA surveillance on non-US persons who engage 

in international terrorism without having to demonstrate that that 

person is affiliated with a particular terrorist organization. 

When FISA was originally passed back in 1978, it contemplated 

terrorist target of FISA surveillance was the agent of an organized 

terrorist group kind of like the Red Brigades, the kind of target 

that easily fit within the statutory definition of an agent of foreign 

power. 

Today we face adversaries that range from loosely knit terrorist 

networks to self-radicalized foreign terrorists who may not be part 

of a particular terrorist group but who are nonetheless just as committed to pursuing the violent objectives of international terrorism. 

As a result, there is a risk today that we will encounter a Lone 

Wolf foreign terrorist who cannot be identified with a known terrorist group and therefore would not qualify for FISA coverage 

under the original statute. 

Congress solved this problem by passing the Lone Wolf provision. 

It allows for FISA surveillance based on a showing that the target 

is involved in international terrorism regardless of affiliation. 

Although as the government reported we have not yet used the 

Lone Wolf provision, the threat posed by foreign terrorists, no matter what their affiliation, is more than ample justification for keeping this authority available for the day that the government might 

need it. 

Thank you once again for inviting me here today. I am grateful 

for the opportunity to discuss the sunsetting Patriot Act provisions 

and to lay out my reasons why I firmly believe that they should 

all be reauthorized this year. I look forward to answering any questions you might have. Thank you. 

Senator WHITEHOUSE. Thank you, Mr. Wainstein. 

Ms. Graves. 

STATEMENT OF LISA GRAVES, EXECUTIVE DIRECTOR, 

CENTER FOR MEDIA & DEMOCRACY, WASHINGTON, DC 

Ms. GRAVES. Senator Whitehouse, Chairman Leahy who is not 

here, but who I was hoping to have the chance to address, Ranking 

Member Sessions and the members of the judiciary committee, I 

am very pleased to be here and I really appreciate the invitation. 

I have a full statement for the record but I was hoping today for 

these opening remarks to focus on some of the things that have 

come up today in the conversation. 

Before I begin, I do want to say that I am pleased to endorse the 

legislation sponsored by Senator Leahy and Senator Cardin and 

Senator Kaufman, the Patriot Sunset Extension Act. I think it is 

an important down payment on restoring civil liberties. 

I am hoping that other improvements will be made. I would also 

like to endorse S. 1686 which is Senator Feingold’s Justice Act. I 

think it is a comprehensive approach to some of the problems that 

have arisen over the last 7 years and I think that bill which is proposed by Senator Feingold and Senator Durbin is an important, 

has an important array of provisions to restore civil liberties. 

37 

I want to focus my testimony today on Section 215 of the national security letters. But before I do that, I want to touch briefly 

on Section 206 and the particularity requirement issue. 

I would only say that it is a bit difficult to focus on what the 

rules should be for roving wire taps in this context when we 

haven’t had the needed reforms to the broader Foreign Intelligence 

Surveillance Act amendment Act, the FISA amendment Act that 

was pushed through last year. 

What we have is a circumstance in which an enormous array of 

communications involving Americans, particularly international 

communications, telephone communications and internet communications are now accessible through blanket orders or broad orders 

without individualized particularity that are being approved by the 

FISA court. 

So on the one hand we have an enormous array of information 

about American content spoken and written by Americans that is 

being obtained through the FISA Amendments Act powers. On the 

other hand we have this roving wire tap authority that exists and 

happens domestically that is distinct and yet to me not the biggest 

issue compared with what we have in terms of the broad authorities under the FISA Amendments Act. But I will save the rest of 

that for another day. 

Today I want to focus on Section 215, the issue of business 

records, the issue of tangible things and national security letters. 

So a lot of the conversation today focused on this presumption 

issue for Section 215 orders and whether something is relevant. 

But what the law now requires is merely that the government say 

that the records pertain to, that’s the relevance test, do these 

record pertain to a particular person and that particular person 

can be someone who has contact with a suspected terrorist or someone who is under surveillance. 

So mere contact is a very low standard. There are 100 people in 

this room. There may be 1,000 people you have contact with every 

year, probably a lot more than that. The government doesn’t have 

to show any particular suspicious activity. Based on showing mere 

contact, they can have access to any tangible thing about you. 

So relevant to what? Relevant to merely a person and that person doesn’t have to be someone who is a suspected terrorist. In 

fact, what the Justice Department said in a report in 2006 was 

that the Patriot Act authorized the FBI to collect, and this is for 

national security letters which is basically the same standard, for 

national security letters the FBI is authorized to collect information such as telephone records, internet usage, credit and banking 

information on persons who are not subject to FBI investigations. 

This is according to the Justice Department. 

This means that the FBI and other law enforcement and intelligence community agencies with access to FBI data bases is able 

to review and store information about American citizens and others 

in the United States who are not subjects of FBI counter intelligence investigations and about whom the FBI has no individualized suspicion of illegal activity. 

That is why this issue matters so much. The 215 orders cover 

any tangible thing. The national security letters cover anything 

held by a bank, a credit card company, an insurance company, a 

38 

pawn broker, a real estate closing service, the United States postal 

service and a casino among other authorities. 

So these aren’t just narrow authorities that relate particularly to 

internet service providers and banks. They are broad authorities in 

the national security letter powers. 

The ISP authority that came up in the context of the questions 

for about the library, what happened there is the FBI construed 

the library to be an internet service provider. If a library can be 

an internet service provider, then anyone can be an internet service provider. Any Senate office, any business that maintains an 

internet service would be basically accessible through these authorities. That is why they are so broad. That is why they need further containment and that’s why the improvements that have been 

proposed by Senator Feingold and by Senator Leahy are so important. 

These powers go to the heart of what the power should be for the 

government vis-a-vis the citizens of the United States and we know 

that these documents, the documents that are obtained through 

these powers are being put into FBI data bases. The FBI data base, 

the investigative data warehouse now has almost 1 billion records 

in it. 

The Inspector General Glenn Fine said that the national security 

letter powers were used to clear cases, to clear people and close 

cases. But the FBI has said that even if you are cleared or your 

case is closed, those records will be maintained basically forever. 

That is why your inquiry is so important and that’s why I’m 

pleased to be here today to talk about the needed reforms for the 

Patriot Act authority that were expanded in 2001. 

Senator WHITEHOUSE. Thank you, Ms. Graves. I will call on our 

distinguished ranking member first and then Senator Feingold and 

then I will wrap up unless other Senators appear. But first the distinguished ranking member. 

Senator SESSIONS. Thank you. Mr. Wainstein, if records are obtained by the FBI as part of a terrorist investigation, how are they 

secured? Are they available to anybody that wants to walk in and 

look at them? Or are they kept in a secure circumstance regardless 

of what is normal criminal case or terrorist case? 

Mr. WAINSTEIN. Well, sir, as you know in the criminal context 

there are procedures in place and have been since—to make sure 

that records that are secured by Grant Jury subpoena are kept confidential because there are rules governing any material that is collected in the course of the grand jury. 

Senator SESSIONS. It’s a criminal offense to reveal a grand jury 

document. 

Mr. WAINSTEIN. Yes, sir, absolutely. Those procedures are even 

more strict on the national security side where you have classified 

information potentially and also national security information 

which is even more sensitive in some ways. 

Senator SESSIONS. Ms. Spaulding, you signed a letter back in ’05 

to reauthorize the Patriot Act. Fundamentally you support it. Have 

you changed your view about the Lone Wolf issue? 

Ms. SPAULDING. Senator, I have always been opposed to the Lone 

Wolf provision and I think what you are referring to is a letter by 

a bipartisan working group that states very clearly at the outset 

39 

that what we were attempting to do was come together on a compromised package, overall package, and that it did not mean that 

all of the signatories agreed with each and every recommendation. 

Senator SESSIONS. I understand. But in fact you concluded at the 

time it was worth passing even though you might have had a disagreement about that part? 

Ms. SPAULDING. Well, I concluded at that time along with the 

other members of that group that the overall provisions of the Patriot Act had implemented some important updates and should be 

reauthorized with some changes as we recommended. I have always been opposed and continue to be opposed to the Lone Wolf 

provision. 

Senator SESSIONS. I don’t think that letter you wrote said it had 

to be taken out. But regardless, on the telephone you indicated that 

on the 215 your telephone conversations could be intercepted, is 

that correct? 

Ms. SPAULDING. No, Senator. I think I said your personal notes, 

your daughter’s diary and your computer, all of which are tangible 

things susceptible to a 215 order. 

Senator SESSIONS. Well, if your daughter is connected to a terrorist organization, maybe that is important. I don’t think the FBI 

is out just gratuitously wanting to peruse people’s diaries. That’s 

the only thing I would say here. 

With regard to the 215, you say it could take your personal 

records. You cannot under 215, can you, take somebody’s records 

that you own in your home or on your possession. 

Ms. SPAULDING. There is nothing in the statute that would prohibit that. The Section 215 allows the government to compel anyone to produce any tangible thing. 

Senator SESSIONS. So you think it can replace a search warrant? 

Ms. SPAULDING. According to the plain terms of the statute, it 

does not have to be directed to a business or an entity. It can be 

directed to any person to compel any tangible thing. 

Senator SESSIONS. Mr. Wainstein, can you utilize a 215 request 

to obtain a target’s personal records in his desk drawer in his 

home? 

Mr. WAINSTEIN. You raise a very good question, sir. I think the 

analysis is the same as on the criminal side. You know, the person 

would have certain privileges to invoke, so there is a mechanism 

for challenging a 215 order before the FISA court. 

One of the bases for that challenge could be I have got a Fifth 

Amendment right not to disclose the items that are sought. 

Senator SESSIONS. So on the 215 it is akin, I mean, it is, you go 

to the court first before you can execute it, unlike the national security letter which you can execute administratively essentially? 

Mr. WAINSTEIN. Yes, sir. And as you pointed out, like any administrative subpoena, and there are I think 300 different types of administrative subpoenas out there for various civil and criminal 

kinds of enforcement. 

In none of those situations does the agency have to go to the 

court. Then as we had both pointed out, the prosecutor doesn’t 

need to go to the court before issuing a grand jury subpoena in a 

regular criminal context. 

40 

Senator SESSIONS. Do you say that there is an intellectual problem let me say with defining an entity at war with the United 

States, the Lone Wolf thing, as a single person as opposed to a 

multiplicity? Intellectually can’t an individual be at war with the 

United States just as well as a group of people? 

Mr. WAINSTEIN. Well, I think actually sort of stepping back and 

looking at taking it out of the context of, the terminology of a statute, looking at the purpose of the Lone Wolf provision, it is exactly 

that. There could be a person out there who is maybe working with 

international elements and is inspired by international terrorists, 

terrorist groups but we cannot hook that person to a particular 

group. 

He could be just as dangerous and just as devastating to America 

and Americans as somebody who is a card carrying member of Al 

Queda. 

Senator SESSIONS. The thing about these contacts and these 

records that might be issued to this or that bank or telephone company, the reality is that the person may be perfectly innocent but 

they may be in contact with a terrorist. 

Just the fact that they have contact can be proof of something 

or prove they were in town, prove they were making communications, proving that they were furthering their agenda. Maybe it 

was to rent a U-haul truck to carry explosives in. Those kinds of 

things can be just critical to an investigation. 

I think we struck the right balance. I think there is a lot of controls and limits and reviews over this. Senator Whitehouse, I think 

that Senator Leahy and others, we went through this weeks and 

weeks and it was not rushed through. It was a number of months 

of intense effort. 

Senator Feingold held our feet to the fire time and time again 

on issues that he felt were important and won a number of battles 

and lost some. I think it was not just thrown together as a blind 

reaction to a terrorist attack. We did not just ignore our constitutional principles and traditional law enforcement principles. Thank 

you. 

Senator WHITEHOUSE. Thank you, Senator Sessions. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. The Senator from 

Alabama, I really enjoy working with him, but I wish I remembered those victories. I don’t recall them, but it was an excellent 

experience trying to achieve them. 

I want to thank this panel very much. Ms. Spaulding, you argued 

that the so called Lone Wolf authority undermines the policy and 

constitutional justification of FISA and the Congress allowed to 

sunset and I know Senator Sessions was talking to you a little bit 

about that. 

As you know, the Justice Department argues that the authority 

should be reauthorized even though it has never been used. Can 

you explain why the connection to a foreign power is so important 

to FISA’s constitutionality? 

Ms. SPAULDING. The reference to the foreign power and agent of 

foreign power as underlined the justification for FISA comes out of 

a Supreme Court case in which they were looking at a domestic naVerDate Nov 24 2008 14:15 Apr 06, 2010 Jkt 055610 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\55610.TXT SJUD1 PsN: CMORC
41 

tional security case and decided that the traditional Fourth Amendment warrant requirements would still apply there. 

In a footnote they said that they were not ruling on cases that 

involved foreign powers or agents of foreign powers because of the 

unique complications and requirements inherent in those kinds of 

investigations. 

Clearly one of the key aspects of FISA that is beneficial in intelligence investigations is the secrecy. It is also a source of concern 

as you noted and as we have discussed this morning. But the secrecy with respect to FISA electronic surveillance versus the ability 

to use a Title 3 criminal wiretap which is always an option for a 

Lone Wolf or anyone else, it really goes to the sensitivity of the information in the application for an electronic surveillance under 

FISA and the sensitivity really derives from the information you 

would put in that application, tagging this person to a group. 

It is the information that you have in that application with regard to the broader activities of a terrorist group that make it so 

sensitive and different from a Title 3 criminal application with respect to an individual. 

That sensitivity simply isn’t as pronounced when you are going 

after a Lone Wolf, a single individual that you are not tying to a 

group. Your application is going to contain—— 

Senator FEINGOLD. So is the option of a criminal wire tap order 

an adequate alternative in the Lone Wolf situation? 

Ms. SPAULDING. I think a Title 3 wiretap application ought to be 

sufficient. I think if the government can make the compelling case 

that if they determine there is actually attachment to a group, perhaps Congress would want to consider allowing a transfer then 

from a Title 3 to a FISA with the secrecy. I think there are ways 

to work through that but I think that Title 3 wire tap for these 

True Lone Wolf ought to be sufficient. 

Senator FEINGOLD. Ms. Spaulding, last week I asked the FBI Director Muller if the FBI had made any changes to the way it handles the gag orders associated with Section 215 orders as a result 

of the second circuit decision ruling that the gag orders associated 

with the national security letters violate the First Amendment. The 

section 215 issue was of course not directly addressed by the court 

which was considering NSLs, but the court’s opinion certainly 

seems to have some implications in the same context. 

Yet Director Muller said the FBI has not made any changes to 

the way it handles 215 gag orders. What is your view on the applicability of the court’s decision to gag orders under Section 215 and 

does the FBI’s position suggest that legislative changes are needed? 

Ms. Graves. 

Ms. GRAVES. Thank you, Senator Feingold. I would say that 

clearly the language in the second circuit’s decision is applicable. 

It is relevant to how these matters should be addressed by the government. 

To take a very narrow view of that decision which was in the national security letter case and say because it deals with Section 505 

of the Patriot Act, even though the gag terms are similar if not 

substantially the same, it shouldn’t be applied to Section 215 gag 

order is the wrong approach. 

42 

Even though they are not technically legally bound by that precedent in that other context, as a matter of good constitutional interpretation, they ought to consider themselves bound by it and ought 

to change their approach to handling those gag orders. So I think 

we definitely need a legislative fix. 

Unfortunately in this area and a number of areas as you pointed 

out in your legislation, the administration, any administration saying we are going to look into it or take care of it is not adequate. 

We need strong rules and clear rules. 

Senator FEINGOLD. Ms. Spaulding. 

Ms. SPAULDING. I think that’s right, Senator. The second circuit 

was very clear about the constitutional basis for requiring that the 

government make more than just merely an assertion of the need 

for secrecy, for example, and I think that is something that carries 

forward to Section 215 and other contexts in which we have got gag 

orders in place. 

Senator FEINGOLD. I thank you and I thank the Chair. 

Senator WHITEHOUSE. Thank you, Senator Feingold. Thank you 

for your determined and passionate and very thoughtful advocacy 

in these areas. 

Let me start with Ms. Graves’ concern that the scope of the 215 

authority is very broad in the sense that all the record has to do 

is pertain to a person and all that person has to have is contact 

with the target. It could be the butcher at the market, it could be 

somebody who knows them at work, it could be any sort of thing. 

From a point of view of relevance, it would seem logical that the 

record request in the pertaining to universe would relate in some 

fashion to the contact. So if we went back to Senator Sessions’ example of the U-haul sales person or rental person, if the contact 

with the target is that they came and rented a U-haul, then it 

would seem that the logical relevance of records in that U-haul operators universe would be to those dealing with the rental of Uhaul to that target. 

But there is nothing that I see in the authority that limits it to 

that. You could go after say school records of the U-haul operator 

or medical records or phone records or DNA records or any other 

such thing. I’m wondering given that very broad scope have there 

been operational guidelines implemented that prevent that sort of 

thing from happening in the implementation of these statutes and 

of these requirements to your knowledge, Ms. Spaulding and Mr. 

Wainstein? 

Ms. SPAULDING. I don’t know the answer to that, Senator. 

Senator WHITEHOUSE. You know, sometimes you’ve got a very 

broad legislative authorization but an agency that is implementing 

it either through administrative rulemaking or through internal 

procedure narrows it and specifies more precisely in order to keep 

itself out of trouble, in order to avoid an attack on the statutory 

authority that they’re going to do things in a certain way that is 

narrower than the full range of their statutory authority. 

To your knowledge, has that happened with this particular question pertaining to relevance for somebody who has mere contact 

with a target? 

43 

Mr. WAINSTEIN. Senator Whitehouse, in regards to the 215, the 

relevance of 215, off the top of my head I can’t remember particular 

internal FBI guidelines that would be a response to your question. 

But keep in mind a couple of things. One, the court, we have to 

make the showing to the court. So built into the statute unlike in 

the NSL—— 

Senator WHITEHOUSE. Well, this falls within the presumption 

that we talked about earlier, doesn’t it? 

Mr. WAINSTEIN. Yes. 

Senator WHITEHOUSE. So once the government has made the 

showing to the court, the statute says that it is presumptively relevant, the court at that point is faced with an interesting situation 

because the burden of going forward with showing that it is not relevant has now shifted to a party that is not present in the room, 

to an imaginary person or a non-existent person. 

So where you are the court and you have I think the very awkward situation in front of you unless there is some clarification 

which is the government is now, or the statute has now moved the 

burden of going forward and disputing that presumption to a party 

who does not exist and is not present. So you are kind of stuck 

with the government’s case. 

I don’t know, the statute would not be any different if you simply 

said when the government shows you this stuff, you shall issue. I 

mean, the presumption is a really false linkage. It falsely implies 

that there is some flexibility there when in fact it is a direct shot 

because there is nobody to actually claim, to take up the burden 

of persuasion. 

So it is not very reassuring to me to say that well, the judge has 

a look at it because the judge may very well take the view that 

hey, I’m stuck with this statutory presumption. If there were somebody here, maybe I could decide between the two parties, particularly if you believe a certain school of judicial activism for the judge 

to take that step would be, you know, activist because it is not 

something that is being argued by a party. 

The judge is now really hamstrung. So that is not a very reassuring fall back for you, Mr. Wainstein. 

Mr. WAINSTEIN. Well, if I may at the risk of sort of wading into 

the semantic discussion that you had with Mr. Kris. I do understand your concern. 

Senator WHITEHOUSE. I thought semantics were important. 

Mr. WAINSTEIN. They are important. I understand your concern 

about the word presumption and how it doesn’t really fit in the ex 

parte context. 

It is usually used in the context of two people who are adversarial and they are arguing one way or the other and—the bailout. 

There is a presumption that someone is a risk of flight or a danger 

to the community if they are charged with a certain type of violent 

crime. 

That is a presumption that sort of moved the needle over toward 

the government in the argument as to whether a defendant should 

be held prior to trial. 

Senator WHITEHOUSE. Correct. 

44 

Mr. WAINSTEIN. You are very familiar with that. I believe though 

that it is not inconsistent to apply that same logic to the ex parte 

context because judges make ex parte decisions all the time. 

Let’s say in the context of a regular search warrant in a drug 

case, a judge looks at a search warrant and says OK, I have to look 

for probable cause. Well, you know, on the meter of burden of 

proof, probable cause is right here somewhere. So the judge applies 

that. 

Now, there is something to say, there is a presumption on that 

that moves it over this way and presumably the judge moves that 

internal needle over to the right a little bit. 

So I see your concern about the use of the term that it doesn’t 

really fit. I don’t think though that it is inconsistent with sort of 

standard practice to have judges just be told this is the standard 

you are going to apply and this standard might change, you know, 

might rise or lower depending on the existence with certain facts. 

If I could just very quickly get to the substance here. 

Senator WHITEHOUSE. I’m just not sure that a legal presumption 

is the technical way that you want to be doing that. I will let you 

continue, but I just want to summarize. In your testimony, it concludes in very, all or nothing fashion that the roving wire tap authority 215 order authority and the Lone Wolf authority should all 

be continued. They should be reauthorized. 

I don’t know that there is any doubt anywhere in this committee 

that that is the case, so I think the question more is in reauthorizing them, are there further refinements and do I take it from 

your testimony that it is your belief that there are no further refinements that are appropriate or necessary in any of these provisions? 

Mr. WAINSTEIN. No. I would not take my testimony to mean that 

these provisions are perfect and they should not be touched. I think 

that the core authorities though are necessary, they are proven to 

be effective and under sort of the current oversight regimes and 

with the limitations that are currently built into the statutes, they 

are being implemented in a way that is consistent with civil liberties. 

Senator WHITEHOUSE. I took you off the point that you wanted 

to make. 

Mr. WAINSTEIN. That being said, if there are refinements that 

could be proposed which would improve the safeguards against 

misuse but not undermine their effectiveness, and I have heard 

some ideas here about more public reporting, maybe certain audits, 

this kind of thing which may very well be very salutary improvements, I’m not objecting to that. 

I guess the only point I wanted to make is to kind of reiterate 

something that David Kris had said earlier when talking about the 

use of NSLs and 215 orders. Keep in mind that as he said, these 

are used very early on in an investigation and they are often used 

to weed out the people who are innocent. 

But you are talking about the situation where contact is just sort 

of a glancing contact and suddenly your records because you happen to be the contacter and the known terrorist is the contactee, 

your records are now in the possession of the FBI. 

45 

In reality, we need that. We need to be able to do that because 

we have a foreign spy and we see that foreign spy just like we see 

any—novel sitting on a park bench with a fedora on his head and 

somebody else walks up with a fedora and a trench coat and sits 

on that bench and they look very suspicious at 2 in the afternoon, 

there is good reason to think that maybe that is a drop going on. 

Some kind of espionage taking place right in that park. 

We might want to know something about that guy when he goes 

and gets in the car and drives away. That’s the kind of thing that 

we need to do early on. 

Senator WHITEHOUSE. But then when he gets up from that suspicious meeting and goes down the street and stops in and buys a 

pack of cigarettes and then goes back out and walks down the 

street, the poor fellow who just sold him the cigarettes is subject 

to the exact same degree of scrutiny as the person having the suspicious potential drop meeting and not only in the context of the 

sale of the cigarettes or even more broadly the operation of that 

store, but conceivably as to their medical records as to their banking records or as to their, any other kind of personal thing. 

It just seems that there might even be an internal relevant 

standard that would make some, you know, once you are in that 

world, that the government should still have some burden of showing what they want actually had some relevance to an investigative 

strategy or theory that the government can articulate before they 

just go wandering through the bus driver’s psychological records. I 

mean, who knows what it could be. It is a big universe when it is 

any record pertaining to any person who had any contact with the 

target. That’s a huge universe in this modern world. 

Mr. WAINSTEIN. True. Keep in mind however that this has to be 

explained to a FISA court judge and so the FISA court judge reviewing that factual statement as to what that connection was, and 

if it is quite clear that it was an obviously innocent day to day 

interaction, I think you’re going to have some questions from the 

FISA court judge. 

Ms. SPAULDING. Although the FISA court judge is limited to applying the law as written as opposed to how the judge thinks it 

should be written. 

Senator WHITEHOUSE. But presumptively the thumb is on the 

scale in that FISA judge’s calculation at that point. 

Ms. SPAULDING. The other issue that this raises that is very important of course is that it places a very high premium on having 

minimization procedures that are very rigorous. 

Inevitably you are going to collect records that turn out not to 

be relevant to your investigation and it is why it is of such concern 

that the Inspector General found that the minimization procedures 

for Section 215 were deficient, that they still haven’t been issued 

and that we really weren’t able to have a public discussion about 

those procedures today. 

Ms. GRAVES. And if I may, Senator. 

Senator WHITEHOUSE. Please. 

Ms. GRAVES. On that issue, the standard for national security 

letters, the same rule applies in essence so long as the records pertain to someone who has any contact without any indicia of suspiciousness, always the hypotheticals involve some suspiciousness. 

46 

But the statute doesn’t require that that contact have any suspicious element to it. 

So for the national security letters of which there have been over 

200,000 requests, those require no sort of statement of fact that 

would show suspiciousness. It merely requires that they show that 

the record pertain to this person who may have had contact. 

The national security letters have been issued in one investigation. There were nine national security letters that covered 11,000 

people. This isn’t just a hypothetical example of what one degree 

of separation is. One degree of separation might be 100 people. Two 

degrees of separation might be 10,000 people. It might be 100,000 

depending on how far you wanted to take it. 

Of course they don’t take it that far but the statute isn’t limiting 

in that way. So the question of requiring that there be something 

that shows that the records are relevant that the person has engaged in some sort of suspicious activity is important. 

When Mr. Comey testified before the House Judiciary committee 

on this provision in 2005, he said even if you are standing in line 

at the cafeteria downstairs, he wants to be able to know everything 

about you and this power allows them to do so. That is why this 

power is so far reaching and that is why it must be contained. 

Senator WHITEHOUSE. Just one other technical point, and let me 

work off, Ken, your example of the suspicious novel meeting on the 

park bench. Let’s say just for purposes of this example that it had 

happened not just once but let’s say twice, and so there was reasonable grounds for some suspicion that the other individual on the 

bench might be involved. 

Would it not be the case that that other individual at that point 

could not be designated a target and therefore the universe expands suddenly to now anybody who has contact with the second 

individual? 

I mean, at what point, it is not clear to me at what level of evidence or investigative support the initial designation of who the 

target is to define the contact with university doesn’t grow so that 

a contact with person now is designated by the government as 

somebody who has enough suspicion that now we think that they 

are actually a target themselves and whoosh, now all of their contact with universe gets swept into it. 

Is it your view that if there were, the suspicion that you indicated, let’s just use those two examples. One meeting on a park 

bench that has no apparent justification and it looks like a John 

Lacaray drop type thing or even it being repeated a week later at 

the same time. 

At that point would the second person on the park bench now be 

able to be designated under the 215 procedure as a target such 

that anybody with contact with them would be subject to the same 

215 inquiries? What is that trigger? 

Mr. WAINSTEIN. There are rules. You are probably familiar with 

the national security guidelines which lay out different levels of investigation. There are full investigations and then there are threat 

increases and the like that are sort of lesser. 

My recollection is that 215, in order to go to the court to get a 

215 order, it has to be within the range of a full investigation. 

There has to be a certain predicate for the FBI to open that. 

47 

Senator WHITEHOUSE. Within that investigation the question of 

who is designated a target versus who is a contact with a target 

is one that is made administratively by the bureau as I understand 

it. I don’t understand the mechanism or the trigger point at which 

somebody who is a contact with the target becomes a target themselves. 

That’s a very small barrier, and it probably should be given the 

complexity of these investigations, that you contact with universe 

and they expand very rapidly. 

Mr. WAINSTEIN. And I think you have probably been briefed over 

time as to the FBI’s practices in terms of how many hops out from 

particular known terrorists they go in terms of analyzing relationships. I am not sure how much I can get into at this point. 

Senator WHITEHOUSE. Probably not much. 

Mr. WAINSTEIN. But the bottom line is there is analysis that goes 

on there. It is done administratively by the bureau, but there is a 

relevance standard that has to be met when you go to the FISA 

court or when you issue an NSL, administratively it has to be satisfied. So the connection can only be so attenuated. 

I don’t want to go beyond that though in terms of the hop analysis. If I could just get one other point in. 

Senator WHITEHOUSE. Please. 

Mr. WAINSTEIN. Keep in mind one of the purposes of being able 

to use these tools, in particular the 215, is to run down a threat 

that might be about to happen. So you have a scenario for instance 

where we might well get intelligence that a terrorist is going to be 

boarding a train from DC to Charlotte and blow that train up with 

a backpack. 

The first thing they will want to do is find out who has booked 

tickets on that train or an airplane, what have you. That means 

you are going to issue process to the railroad or the airplane, the 

airline and say I want to know everybody who is in all those seats. 

Well, obviously if it just one target that you are looking for, you 

are going to be getting information about a lot of people who do not 

fit within the parameters of that presumption. That is not a tool 

we can deny investigators. 

So if you were to make that, the three part presumption a showing, a mandatory showing of relevance, you preclude the Bureau 

from having the ability to use the 215 order to get records in that 

situation which really could be debilitating. 

Senator WHITEHOUSE. Yeah, I think that would be debilitating. 

I would think that the, at that point you have a very different investigative nexus between the threat and the evidence that you 

seek to secure than you do when the evidentiary nexus is mere contact with. 

There you actually have an investigative theory. It is a very clear 

one and it makes perfect sense for the government to pursue that. 

If when you get into this contact with theory, it begins to seem a 

little bit unbounded. 

But I want to thank all of you for your testimony. This has been 

very helpful. I think we are in substantial agreement that there 

are fine tuning refinements and a variety of audit and accountability measures that are probably appropriate to the statute but 

48 

that the fundamental authorities are important to keeping our 

country safe. 

I thank you all for your testimony. The record of the hearing will 

remain open for another 7 days for anybody who wishes to add to 

it. But other than that, again my thanks to the witnesses. We are 

adjourned. 

[Whereupon, the hearing was adjourned.] 

[Submissions for the record follow.] 

49 


55610.001
50 


55610.002
51 


55610.003
52 


55610.004
53 


55610.005
54 


55610.006
55 


55610.007
56 


55610.008
57 


55610.009
58 


55610.010
59 


55610.011
60 


55610.012
61 


55610.013
62 


55610.014
63 


55610.015
64 


55610.016
65 


55610.017
66 


55610.018
67 


55610.019
68 


55610.020
69 


55610.021
70 


55610.022
71 


55610.023
72 


55610.024
73 


55610.025
74 


55610.026
75 


55610.027
76 


55610.028
77 


55610.029
78 


55610.030
79 


55610.031
80 


55610.032
81 


55610.033
82 


55610.034
83 


55610.035
84 


55610.036
85 


55610.037
86 


55610.038
87 


55610.039
88 


55610.040
89 


55610.041
90 


55610.042
91 


55610.043
92 


55610.044
93 


55610.045
94 


55610.046
95 


55610.047
96 


55610.048
97 


55610.049
98 


55610.050
99 


55610.051
100 


55610.052
101 


55610.053
102 


55610.054
103 


55610.055
104 


55610.056
105 


55610.057
106 


55610.058
107 


55610.059
108 


55610.060
109 


55610.061
110 


55610.062
111 


55610.063
112 


55610.064
113 


55610.066
114 


55610.067
115 


55610.068
116 


55610.069
117 


55610.070
118 


55610.071
119 


55610.072
120 


55610.073
121 


55610.074
122 


55610.075
123 


55610.076
124 


55610.077
125 


55610.078
126 


55610.079
127 


55610.080
128 


55610.081
129 


55610.082
130 


55610.083
131 


55610.084
132 


55610.085
133 


55610.086
134 


55610.087
135 


55610.088
136 


55610.089
137 


55610.090
138 

Æ 


55610.091