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24-983 PDF 2006

S. HRG. 109–341

USA PATRIOT ACT

HEARING

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE

OF THE

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

USA PATRIOT ACT

APRIL 19, 2005

APRIL 27, 2005

MAY 24, 2005

Printed for the use of the Select Committee on Intelligence

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate

(II)

SELECT COMMITTEE ON INTELLIGENCE

[Established by S. Res. 400, 94th Cong., 2d Sess.]

PAT ROBERTS, Kansas, Chairman

JOHN D. ROCKEFELLER IV, West Virginia, Chairman

ORRIN G. HATCH, Utah

MIKE DeWINE, Ohio

CHRISTOPHER S. BOND, Missouri

TRENT LOTT, Mississippi

OLYMPIA J. SNOWE, Maine

CHUCK HAGEL, Nebraska

SAXBY CHAMBLISS, Georgia

JOHN W. WARNER, Virginia

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

RICHARD J. DURBIN, Illinois

EVAN BAYH, Indiana

JOHN EDWARDS, North Carolina

BARBARA A. MIKULSKI, Maryland

BILL FRIST, Tennessee, Ex Officio

HARRY REID, Nevada, Ex Officio

BILL DUHNKE, Staff Director

ANDREW W. JOHNSON, Minority Staff Director

KATHLEEN P. MCGHEE, Chief Clerk

(III)

CONTENTS

DAY ONE

Hearing held in Washington, DC:

April 19, 2005 ................................................................................................... 1

Statements of :

Roberts, Hon. Pat, a U.S. Senator from the State of Kansas ....................... 1

Prepared statement ................................................................................... 2

Rockefeller, Hon. John D. IV, a U.S. Senator from the State of West

Virginia, prepared statement ....................................................................... 29

Nojeim, Gregory T., Associate Director and Chief Legislative Counsel,

ACLU, prepared statement .......................................................................... 29

Dempsey, James X., Executive Director, Center for Democracy & Technology, prepared statement .......................................................................... 45

MacDonald, Heather, Senior Fellow at the Manhattan Institute for Policy

Research, prepared statement ..................................................................... 57

Supplemental Materials:

Testimony on the USA PATRIOT Act by Bob Barr ....................................... 4

Letter from Edwin Meese III and Paul Rosenzweig ...................................... 10

Testimony of Orin S. Kerr ............................................................................... 23

Statement for the Record by Kate Martin ...................................................... 26

Chart on the USA PATRIOT Act .................................................................... 42

DAY TWO

Hearing held in Washington, DC:

April 27, 2005 ................................................................................................... 87

Statements of:

Gonzales, Hon. Alberto R., Attorney General, Department of Justice ......... 97

Prepared statement ................................................................................... 90

Mueller, Hon. Robert S. III, Director, Federal Bureau of Investigation ...... 100

Goss, Hon. Porter J., Director, Central Intelligence Agency ........................ 104

Prepared statement ................................................................................... 102

Supplemental Materials:

April 4, 2005 Letter from William E. Moschella, Assistant Attorney General to Senator Arlen Specter ...................................................................... 130

April 26, 2005 Letter from William E. Moschella, Assistant Attorney

General to Senator Dianne Feinstein .......................................................... 137

DAY THREE

Hearing held in Washington, DC:

May 24, 2005 ..................................................................................................... 153

Statements of:

Caproni, Ms. Valerie, General Counsel, Federal Bureau of Investigation .. 168

Prepared statement ................................................................................... 166

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

prepared statement ....................................................................................... 176

Kris, David S., former Associate Deputy Attorney General, U.S. Department of Justice, prepared statement ........................................................... 188

Page

IV

—Continued

Onek, Joseph, Senior Policy Analyst, Open Society Institute, prepared

statement ....................................................................................................... 208

Collins, Daniel P., former Associate Deputy Attorney General, U.S. Department of Justice, prepared statement .................................................... 212

Dempsey, James X., Executive Director, Center for Democracy and Technology, prepared statement .......................................................................... 221

Supplemental Materials:

May 23, 2005 Letter from Richard A. Seamon, University of Idaho ............ 155

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THE USA PATRIOT ACT OF 2001

DAY ONE

TUESDAY, APRIL 19, 2005

UNITED STATES SENATE,

SENATE SELECT COMMITTEE ON INTELLIGENCE,

Washington, DC.

The Committee met, pursuant to notice, at 3:05 p.m., in room

SH–216, Hart Senate Office Building, Hon. Pat Roberts (Chairman

of the Committee) presiding.

Committee Members Present: Senators Roberts, Bond, Lott,

Snowe, Chambliss, Warner, Rockefeller, Feinstein, Wyden, and

Corzine.

OPENING STATEMENT OF HON. PAT ROBERTS

Chairman ROBERTS. The Committee will come to order.

I would like to apologize to our witnesses for the 40-minute delay

due to the procedural votes that we had on the floor of the Senate.

I guess the good news is that, at least for the time being, we have

completed those votes. The challenge that we face is that at 5

o’clock we will have additional votes. We’re down already to 1 hour

and 45 minutes.

Now I have a marvelous opening statement that deals with the

PATRIOT Act and all of the varied concerns and positives that are

involved with that Act and your concerns as well. But, I am going

to simply submit that for the record in an attempt to hear from

you.

Can we keep the applause down a little bit?

[Laughter.]

Chairman ROBERTS. I think the Vice Chairman is going to do

likewise, although he will seek his own counsel.

We’ve invited a panel of outside experts to provide their views of

the USA PATRIOT Act and their opinions on those provisions of

the Act which will expire later this year.

Our witnesses are Mr. Gregory T. Nojeim, the Associate Director

and Chief Legislative Counsel for the American Civil Liberties

Union; Mr. Jim Dempsey, Executive Director of the Center for Democracy and Technology; and Ms. Heather MacDonald, a John M.

Olen fellow at the Manhattan Institute. The Committee thanks all

of our witnesses for being here today.

[The prepared statement of Chairman Roberts follows:]

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PREPARED STATEMENT OF HON. PAT ROBERTS

The Committee will come to order.

On September 11, 2001, 19 terrorists hijacked four flights over the United States.

We all remember the events of that day. The images of the collapse of the World

Trade Center, the burning Pentagon, and the crash site of United Flight 93 in

Shanksville, Pennsylvania should never be forgotten.

But, the story of that day was written well before September 11th, and it was

written by the terrorists that lived and trained within the United States. They

rented apartments, bought cars, made telephone calls, sent e-mails, surfed the

Internet, received wire transfers, and attended flight schools.

The terrorists hid in the open—their sinister plans and intentions camouflaged by

millions of innocent, lawful transactions that occur every day in the United States.

The activities of the hijackers went largely unnoticed by our intelligence and law

enforcement agencies. As this Committee and the 9/11 Commission have pointed

out, systemic flaws in our national security agencies prevented full cooperation that

might have stopped these attacks.

But, in addition to these systemic flaws, our national security agencies were operating under obsolete authorities. Their hands were tied by inaccurate interpretations of existing law that restricted common-sense sharing of intelligence information.

The USA PATRIOT Act was the first legislative effort by Congress and the President to reform our national security apparatus in response to the attacks of September 11th. The Act brought intelligence tools into the information age. Collection

authorities that had been enacted during the era of the rotary phone had not kept

pace with the new world of e-mail, the Internet, and mobile phones. The Act also

tore down ‘‘walls’’ erected by overly cautious lawyers that had prevented information

sharing and coordination between law enforcement and intelligence officials.

The USA PATRIOT Act was drafted and passed by overwhelming majorities in

both the Senate and the House and signed by the President on October 26, 2001.

But, to describe the Act as a rash response to a horrific attack would be a mistake.

Many of the provisions in the Act had been the subject of deliberation for years. The

provisions were enacted with an acute awareness of rights guaranteed by the Constitution and applicable judicial precedents. The USA PATRIOT Act reflected a careful balancing of national security and the privacy rights of U.S. persons.

Nonetheless, some of the more important provisions in the Act were passed subject to a ‘‘sunset’’ provision. Sixteen provisions in the Act—and the recently enacted

‘‘lone wolf ’’ amendment to the Foreign Intelligence Surveillance Act—will expire on

December 31, 2005.

The danger posed by terrorism and other national security threats, however, will

not expire on that date.

Today, the Senate Select Committee on Intelligence continues its on-going oversight of the USA PATRIOT Act. This open hearing will be the first in a series of

three hearings designed to educate Members and the public as the Senate considers

the repeal of the ‘‘sunset’’ provision and modifications to other intelligence authorities. On Thursday, the Committee will hold a closed hearing on operational matters

relating to the Act. Next Wednesday, we will hear from the Attorney General, Director of the Federal Bureau of Investigation, and the Director of Central Intelligence.

This is not the Committee’s first review of the USA PATRIOT Act or the Foreign

Intelligence Surveillance Act, also known as FISA. The Committee regularly holds

hearings, conducts briefings, and receives information regarding the activities of the

Intelligence Community. The Committee conducted a closed hearing on the USA PATRIOT Act during the last Congress. We receive detailed reports from the Department of Justice every 6 months regarding FISA collection and annual reports on the

use of other surveillance tools.

The Committee is also in the final stages of completing its second audit of the

procedures, practices, and use of FISA. This comprehensive, classified analysis will

represent one of the most thorough reviews of Executive branch activities under

FISA since the USA PATRIOT Act was enacted.

Today, we have invited a panel of outside experts to provide their views of the

USA PATRIOT Act and their opinions on those provisions of the Act that will expire

later this year.

Our witnesses are: Mr. Gregory T. Nojeim, Associate Director and Chief Legislative Counsel for the American Civil Liberties Union; Mr. Jim Dempsey, Executive

Director of the Center for Democracy and Technology; and Ms. Heather Mac Donald,

a John M. Olin fellow at the Manhattan Institute. The Committee thanks all of our

witnesses for being here today.

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We have also received testimony and submissions for the record from: The Honorable Bob Barr, former Congressman from Georgia; Former Attorney General Edwin

Meese III, and Paul Rosenszweig (RO-zen-swayg) of the Heritage Foundation; Associate Professor Orin S. Kerr of the George Washington University Law School; and

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

Without objection, the submissions from these commentators will be entered into

the record.

Before I recognize the Vice Chairman, I want to set out some fundamental principles that will inform my consideration of the USA PATRIOT Act reauthorization

and any other modifications to law or policy governing intelligence activities.

First, our intelligence agencies need flexible authorities to confront terrorists,

spies, proliferators, and other national security threats.

Second, as we seek to protect national security, we must also ensure that civil liberties and privacy are not sacrificed in the process. This is not a zero-sum game,

however. As former Supreme Court Justice Arthur Goldberg noted, ‘‘While the Constitution protects against invasions of individual rights, it is not a suicide pact.’’

Third, these are not matters of ‘‘first impression.’’ Interpreting the Constitution

and the President’s responsibility to protect national security, Federal courts have

wrestled with many of these issues before. They have recognized the authority of

the President to conduct warrantless electronic surveillance of foreign powers and

their agents. Well-established judicial precedents also make clear that certain

records—even of the most private information—lose their Constitutional protection

when voluntarily exposed publicly or to a business or other third party.

Finally, I will support reasonable modifications to USA PATRIOT Act provisions

or other authorities that clarify legal uncertainties, but I will oppose modifications

that place unnecessary hurdles in the path of lawful intelligence investigations.

I would like to note one particular example of an authority that has been questioned by some in the context of the USA PATRIOT Act.

Everyday, we expose our personal information to businesses—when we buy milk

from the grocery store with a credit card; when we open an e-mail account over the

Internet; when we apply for a mortgage. This information we have voluntarily exposed to others is no longer private. Federal courts have clearly established that

this record trail is not ‘‘protected’’ by the warrant requirement of the Fourth Amendment.

I have said before, that the 9/11 hijackers conducted numerous transactions while

living within the United States. It should not be surprising that the records of these

transactions would have been useful to the Intelligence Community before the attacks. Records from flight schools, cell phone companies, rental car dealers, or internet service providers might have revealed crucial information about the activities

of these terrorists.

To gain access to these types of transactional records, the FBI uses a FISA ‘‘business records’’ order. A FISA ‘‘business records’’ order allows the FBI to access

records for investigations of international terrorists and spies.

Before the USA PATRIOT Act, the authority to access ‘‘business records’’ under

FISA was limited to certain types of business—like storage facilities, rental car companies, airlines, hotels, and the like. Section 215 of the USA PATRIOT Act expanded the types of entities that were subject to a FISA ‘‘business records’’ order

and the types of items that could be sought with such an order.

Armed with a FISA ‘‘business records’’ order, the FBI can now go to a flight school

to ask for records about a student they believe to be a terrorist. They can ask an

internet service provider for the subscriber information of a possible spy. They can

ask for transactional records from a fertilizer company, a chemical company, and a

car dealership if those records will support an investigation to stop a car bomb attack by al Qaeda.

Libraries, booksellers, and others have raised great concern about this provision.

In law enforcement investigations, the government can obtain the same types of

records—from all types of businesses, including libraries and bookstores—with a

grand jury subpoena. These subpoenas are issued without a court order and are subject to judicial review only after they are issued.

A FISA ‘‘business records’’ order—on the other hand—can be issued only upon the

approval of a Federal Judge serving on the Foreign Intelligence Surveillance Court.

The judge can direct the FBI to modify the scope of the order. No similar preissuance review exists in the context of grand jury subpoenas.

Still, there is concern that the provision infringes privacy interests.

A FISA ‘‘business records’’ order also CANNOT be sought if the investigation is

based solely on activities protected by the First Amendment. This prohibition dovetails with existing restrictions in Executive Order 12333 on the collection of foreign

intelligence concerning the domestic activities of U.S. persons.

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Finally, I note that the FISA ‘‘business records’’ provision is a relatively non-intrusive means of collecting intelligence for a national security investigation. Analysis

of these business records can help solidify investigative leads or clear innocent

names before more intrusive FISA techniques such as electronic surveillance or

physical search are ever employed.

And, there are limitations in the USA PATRIOT Act, along with requirements for

judicial review, the Congressional reporting obligations, and the prohibitions in Executive Order 12333.

While I recognize that some clarifying modifications to Section 215 may be necessary, I will oppose modifications that increase the standard for an order above

‘‘relevance’’ or place unreasonable barriers between these business records and intelligence officials.

Section 215 is just one example of the numerous tools that the USA PATRIOT

Act provided to the men and women protecting us from further attack. These tools

are currently helping our intelligence agencies identify terrorists, track their movements, and disrupt their plots. The provisions are subject to review by courts and

the oversight of Congress.

Those provisions of the USA PATRIOT Act subject to expiration at the end of the

year must be reauthorized. The alternative is a return to failed, outdated, and illogical limits on national security investigations that tied our hands prior to the 9/11

attacks. The dangers are real, and we should give our people every Constitutional

tool available to fight and defeat terrorism.

I now recognize the Vice Chairman for any remarks he might wish to make.

Chairman ROBERTS. We also received testimony and submissions

for the record from the Honorable Bob Barr, the former Congressman from Georgia; former Attorney General Ed Meese and Paul

Rosenzweig of the Heritage Foundation; Associate Professor Orin S.

Kerr of the George Washington University Law School; and Ms.

Kate Martin, the Director of the Center for National Security Studies.

Without objection, the submissions from these commentators will

be entered into the record.

[The prepared statements referred to follow:]

PREPARED STATEMENT OF BOB BARR

Chairman Roberts, Ranking Member Rockefeller, distinguished members of the

Select Committee, I thank you for the invitation to present my views in this written

statement on the debate over the PATRIOT Act ‘‘sunset’’ provisions, and I applaud

your oversight on this crucial matter.

My name is Bob Barr. From 1995 to 2003, I had the honor to represent Georgia’s

Seventh District in the U.S. House of Representatives, serving that entire period on

the House Judiciary Committee. From 1986 to 1990, I served as the United States

Attorney for the Northern District of Georgia after being nominated by President

Ronald Reagan, and was thereafter the president of the Southeastern Legal Foundation. For much of the 1970’s, I was an official with the CIA.

I currently serve as CEO and President of Liberty Strategies, LLC, and Of Counsel with the Law Offices of Edwin Marger. I also hold the 21st Century Liberties

Chair for Freedom and Privacy at the American Conservative Union, consult on privacy issues with the American Civil Liberties Union, and am a board member of

the National Rifle Association.

Finally, I am the Chairman of a new network of primarily conservative organizations called Patriots to Restore Checks and Balances, which includes the American

Conservative Union, Eagle Forum, Americans for Tax Reform, the American Civil

Liberties Union, Gun Owners of America, the Second Amendment Foundation, the

Libertarian Party, the Association of American Physicians and Surgeons, and the

Free Congress Foundation.

We strongly urge Congress to resist calls to summarily remove the sunset provisions in the PATRIOT Act. This reflects our philosophy in support of all necessary

and constitutional powers with which to fight acts of terrorism, but against the centralization of undue authority in any one aim or agency of government.

As I have said many times before, I believe the current struggle to properly integrate our shared constitutional heritage into our efforts to provide for the common

defense, is the defining debate of our time. If we fail to strike the appropriate balance, we will do irreparable harm to our most elemental principles as a nation.

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1Stephen Brill, After: How America Confronted the September 12 Era 348 (2003).

To that end, I urge this Committee to carefully examine the current language of

the 2001 USA PATRIOT Act, and to make modest modifications to a handful of its

provisions. In particular, I strongly urge individual members to co-sponsor Senator

Larry Craig’s Security and Freedom Enhancement Act of 2005, known as the SAFE

Act. Although in many respects, this legislation does not address all of our concerns

with the USA PATRIOT Act, it is an essential first step.

Even though I voted for the USA PATRIOT Act in October 2001, as did many of

my colleagues, I did so with the understanding it was an extraordinary measure for

an extraordinary threat; that it would be used exclusively, or at least primarily, in

the context of important antiterrorism cases; and that the Department of Justice

would be cautious in its implementation and forthcoming in providing information

on its use to the Congress and the American people.

I have become skeptical on all of these fronts.

First, the Justice Department has been quite frank in its use and desire to use

the USA PATRIOT Act in non-terrorism contexts. Second, the administration has

repeatedly stated its intention to expand the USA PATRIOT Act, and has floated

various pieces of legislation that would do so.

And, third, although this Committee would be in the best position to judge, the

Justice Department has not produced any compelling evidence that the USA PATRIOT Act has been essential in preventing al Qaeda-style terrorist plots. Although

I grant we have not suffered another major terrorist attack since 9/11, as Homeland

Security Secretary Michael Chertoff put it, ‘‘[i]t’s like sprinkling powder to keep

away elephants. If no elephants show up, how do you prove it’s because of the powder, rather than because there were never any elephants?’’ 1

Before I specifically discuss those provisions of the USA PATRIOT Act most pertinent to this Committee’s jurisdiction, I would like to bring two new developments

in the ‘‘sunsets’’ debate to the Committee’s attention. Namely, we learned earlier

this month that both the USA PATRIOT Act appears to have been used in the Brandon Mayfield affair, and that the Administration is increasingly turning to it for its

surveillance needs.

The Mayfield revelation is particularly disturbing. Mayfield—the Oregon lawyer

turned prime suspect in the Madrid bombing investigation because of faulty fingerprint analysis at the FBI—was subjected to a highly intrusive Federal investigation

and then detained as a ‘‘material witness’’ for 2 weeks before finally being exonerated.

According to Attorney General Gonzales, the FBI used the USA PATRIOT Act

when it executed a covert search of Mayfield’s home. Specifically, the attorney general said that Section 207 was used to extend the duration of Mayfield’s surveillance, and that ‘‘in some sense’’ Section 218, which made it easier to use intelligence

authorities in criminal contexts, was used.

We all fully understand the FBI is not perfect and generally support the bureau

even when it makes honest mistakes.

However, the Mayfield case shows how the USA PATRIOT Act, by lessening

meaningful judicial oversight, reduces the ability of the FBI and Justice Department

to avoid such mistakes. In particular, it shows how—through the increased use of

classified and less exacting foreign intelligence surveillance authority in place of traditional criminal warrants based on probable cause and executed in the open—the

USA PATRIOT Act can compound mistakes and amplify them into serious deprivations of an innocent person’s personal liberty.

In Mayfield’s case, not only was a U.S. citizen detained, but his home was subjected to a ‘‘black bag’’ intelligence search even though the Justice Departillent was

arguably conducting this search primarily for criminal purposes; in other words, in

order to apprehend a suspect in a terrorist bombing that had already taken place.

Such a foreign intelligence search is even more intrusive than the criminal ‘‘sneak

and peek’’ search warrants available under section 213 of the USA PATRIOT Act,

because notice is not simply delayed, it is never provided. The Washington Post re- ported that in a March 24th letter to Mayfield, the Justice Department acknowledged that during a covert search of his home, agents copied computer and paper

files, took 355 digital photographs, seized six cigarette butts for DNA analysis, and

used cotton swabs to obtain other DNA evidence.

In short, the Mayfield case should serve as a cautionary tale of how the USA PATRIOT Act can seriously exacerbate any ‘‘broken telephone’’ effect in an ongoing investigation.

I would also say, especially to Senators Hatch and Feinstein, that this is the type

of problem that supporters of increased checks and balances refer to when discussing so-called ‘‘PATRIOT Act abuses.’’ No one is of the mind that the FBI would

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deliberately seek to infringe on the rights of loyal, law-abiding Americans. But there

need be no malice aforethought for something to constitute an ‘‘abuse.’’ The fact is,

procedural deficiencies in the law’s implementation likely led to Mayfield’s predicament, and Mayfield was an innocent man.

Put another way, sometimes the road to abuse is paved with good intentions.

Take, for instance, the Racketeer Influenced and Corrupt Organizations, or RICO,

Act, which was passed to provide tools to fight organized crime, but was then used

against pro-life groups. Overbroad laws are necessarily subject to overbroad application, if not now, then under future administrations, including those with less regard

for civil liberties. That in itself can be deemed ‘‘abusive.’’

The second consideration—that the USA PATRIOT Act is becoming an ever more

popular tool for the Justice Department—should be of particular concern to limited

government conservatives like myself. As with taxes, unduly expanded government

authority is next to impossible to retract.

As an illustration, I would point the Committee to the Attorney General’s statement that, to date, Section 215 of the USA PATRIOT Act has been used 35 times.

Note, however, that former Attorney General John Ashcroft declassified a memorandum to FBI Director Robert Mueller in September 2003 saying that Section 215

had never been used, meaning that those 35 court orders have all been issued in

just the last year-and-a-half.

Granted, three dozen court orders may be considered by some to be a drop in the

ocean of foreign intelligence document-production orders. Clearly, however, the

trend is toward increased, not decreased, use of the USA PATRIOT Act; and, given

the reach of the statute, the increased enthusiasm for its use ought to sound alarms.

Similarly, on the eve of the recent, April 6th Senate Judiciary Committee hearing,

the Justice Department released statistics disclosing the use to date of Section 213

of the PATRIOT Act—the so-called ‘‘sneak and peek’’ provision that grants statutory

authorization for the indefinite delay of criminal search warrant notification.

Apparently, the department sought and received the authority to delay notice 108

times between April 2003 and January 2005, a period of approximately 22 months.

By contrast, it sought and received this authority 47 times between November 2001,

when the PATRIOT Act was enacted, and April 2003, a period of about 17 months.

The 5-month difference in timeframe aside, these numbers clearly reveal a substantial increase in use.

Moreover, Senator Arlen Specter at the April 6th Judiciary Committee hearing

also revealed that 92—or approximately 60 percent—of those 155 requests were

granted under the broad justification that notice would have the result of ‘‘seriously

jeopardizing an investigation,’’ rather than under the more specific criteria that notice would endanger a person’s life, imperil evidence, induce flight from prosecution

or lead to witness tampering.

While I understand the jurisdiction of this Committee is concerned primarily with

foreign intelligence authorities, not with criminal ‘‘sneak and peek’’ warrants, I respectfully submit that you should be concerned when criminal investigative powers

are made so broad that they come to resemble powers associated with foreign intelligence investigations. As Attorney General Gonzales informed Representative Flake

at an April 7th hearing of the House Judiciary Committee, six criminal delayednotice warrants under section 213 of the PATRIOT Act were approved with an indefinite delay (just as we had feared), and one had a delay that lasted fully half

a year.

Lengthy, secret surveillance, including secret ‘‘black bag’’ jobs (all undertaken,

since 1978, with the proper approval of the Foreign Intelligence Surveillance Court,

of course) have long been the hallmark of a specialized, but crucial, type of investigation—the foreign intelligence investigation of suspected spies and international

terrorists—the members of this Committee understand better than anyone. When

these intrusive powers, such as the power to enter a home without notifying the

owner, become more common in criminal or other types of investigations, the American people become alarmed. The resulting furor risks more draconian limits on all

such secret surveillance powers—even in the investigations where they may actually

be needed.

Although I acknowledge the Justice Departtnent’s argument that Section 213 and

215 searches and surveillance represent only a fraction of the searches and surveillance conducted by the FBI and other security agencies, I remain concerned. These

are extraordinary authorities and they are being used more frequently, and more

and more outside their proper context of foreign intelligence and terrorism investigations. Any hint of such a trend should be very worrisome.

Furthermore, I would point the committee’s attention to an April 1, 2005 Associated Press story on a recent report to Congress by the Assistant Attorney General

for Legislative Affairs, William E. Moschella, disclosing the record number of ForVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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eign Intelligence Surveillance Act, or FISA, wiretaps in 2004. The department requested and won approval of 1,754 FISA wiretaps in 2004, up from 1,724 in 2003.

Although the marginal increase between 2003 and 2004 is small, the numbers

still represent a 70 percent jump over the number obtained in 2000. In 2003, moreover, the use of intelligence wiretaps outstripped that of normal criminal wiretaps

for the first time in history. One can only presume that the same trend continued

in 2004.

The USA PATRIOT Act is directly relevant to the increased use of these intelligence wiretaps, as a number of provisions in the law made these wiretaps more

intrusive and much easier to obtain outside of terrorism or espionage investigations.

Section 218, for instance, which is set to sunset this year, now requires the investigation of foreign intelligence or terrorism to be a ‘‘significant purpose,’’ rather than

the primary purpose, of the intelligence wiretap.

Bearing these two new developments—the Mayfield revelations and the increased

use of the PATRIOT Act—in mind, I urge the Intelligence Committee to look at

three provisions that are of particular importance to your oversight mandate.

These are Sections 206, 215 and 505, which, respectively, created ‘‘roving wiretap’’

authority under FISA, expanded the government’s ability to seize personal records

and other materials under foreign intelligence authorities, and finally removed the

required ‘‘nexus’’ to foreign powers for the specific targets of FBI ‘‘National Security

letter’’ subpoenas.

First, when Congress created foreign intelligence roving wiretap authority in the

USA PATRIOT Act, it failed to include the checks against abuse present in the analogous criminal statute. This is troubling because, as roving wiretaps attach to the

target of the surveillance and not to the individual communications device, they provide a far more extensive and intrusive record of a person’s communications.

Accordingly, criminal roving wiretaps require agents to ‘‘ascertain’’ that the target, rather than a third-party, is in fact using the telephone before they begin recording. They also require that, if the FBI does not actually know the identity (or

an alias) of the target, but knows that he or she will be using a particular phone,

the wiretap can attach to a single phone and all its users.

In creating roving wiretap authority under FISA, the USA PATRIOT Act did

away with this ascertainment requirement. Then, shortly thereafter, the intelligence

authorization bill for FY 2002 took away the requirement that the applicant specify

either the identity of the target or the particular communications device.

The result, today, is a ‘‘John Doe’’ general warrant, issued secretly under FISA,

that permits electronic surveillance irrespective of the communications device being

tapped or the person being eavesdropped on.

The Justice Department has defended the open-ended nature of these ‘‘John Doe’’

wiretaps, by pointing to the requirement that they provide the FISA court with a

physical description of the target if it cannot identify the communications device or

target. Critics question how much of a safeguard this description requirement is in

practice, given the paucity of identifying information it requires. In recognition of

the oversight authority and security clearance of this Committee, I would urge its

members to inquire on this point at length.

In addition, I would urge the Committee to tighten the roving wiretap authority

to prevent anonymous or dragnet wiretapping, and to use the internal safeguards

in the criminal roving wiretap statute as a model. At the very least, a judge authorizing a roving wiretap should have some assurance that (a) an innocent bystander’s

sensitive communications are protected, and (b) the court order is not an effective

general warrant to be filled in later.

To that end, Senator Craig’s SAFE Act would restore the ascertainment requirement and mandate that an FBI applicant for a national security roving wiretap

specify either the actual target (or an alias) or the communications device to be

tapped. This would, I believe, reserve for the government power that is more than

sufficiently flexible to meet the demands of modern anti-terrorism and other anticriminal investigations, over and above that of pre-PATRIOT Act authorities.

Next, I would urge the committee to carefully review the use and utility of Section

215, the USA PATRIOT Act’s amendment to what was special authority under FISA

to seize rental car, self-storage and airline records for national security investigations.

Prior to the USA PATRIOT Act, the underlying statute applied to only a limited

subset of businesses, and it required a showing of ‘‘specific and articulable facts’’

that the target was an agent of a foreign power. The 2001 Act removed both these

limitations, thereby greatly expanding the power of the government to reach to all

‘‘tangible things’’ (including books, records, papers, documents and other items), and

lowering the evidentiary standard below that of standard, grand jury subpoenas

which are pegged to at least some showing of relevance to criminal action by a parVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ticular person in an ongoing international terrorism or foreign intelligence investigation. .

Some have questioned why the section 215 power has become known as the ‘‘library provision,’’ when libraries were not mentioned and given that it covers so

much beyond library records or other information maintained by libraries. The answer is simple. Prior to the USA PATRIOT Act, library and bookseller records were

not covered by this power, which then only permitted an order for the records of

certain business. Now, library records are covered—as are all other records and tangible items, including membership lists of political organizations, gun purchase

records, medical records, genetic information, and the list goes on.

Section 215 also comes with a sweeping gag order, without any explicit provision

for a recipient to even consult with counsel; and if certification is made that the

records are sought for any intelligence or terrorism inquiry, the judge has no power

under the law to challenge that certification. Finally, and crucially, this is not like

a grand jury subpoena, because a recipient has no explicit right to move to have

it quashed in court, and failure to comply with a 215 order is presumably a serious

offense.

Accordingly, critics of this section rightly charge that its open-ended scope and

lack of meaningful judicial review open the door to abuses, and I agree. At the very

least, Congress must restore the particularity requirement for the target of a Section 215 order, and should institute additional reporting requirements (subject, of

course, to appropriate classification measures). Here again, such a modest limitation, consistent with traditional Fourth Amendment principles, would pose no significant hardship to Federal agents. Federal judges would, as they have for ages

past, continue to approve virtually all such applications properly supported and applied for by government agents.

The SAFE Act, among other new procedural safeguards, would restore the specific

and articulable facts standard and provide a recipient with at least some outlet to

challenge an unreasonable order. It would also require notice before any information

seized pursuant to Section 215 of the USA PATRIOT Act is introduced as evidence

in any subsequent proceeding. These are ‘‘burdens’’ the government has always been

able to meet and which have never been seen as any real impediment to the government’s ability to secure necessary evidence.

I welcome the Attorney General’s recent statements, agreeing to some changes to

Section 215 that would make explicit a recipient’s right to challenge the order and

the secrecy provision, and would make explicit a recipient’s right to consult an attorney. The Attorney General is certainly right to agree to changes in this poorly drafted provision, but, unfortunately, it remains unclear that the Administration will

agree to a standard for a Section 215 order (individual suspicion) that will truly protect privacy. I strongly urge you to adopt the SAFE Act’s standard in this regard.

Finally, I would urge the Committee to review Section 505 of the USA PATRIOT

Act, which removed the requirement that the FBI self-certify that it has ‘‘specific

and articulable facts’’ that the individual target of an administrative subpoena or

‘‘national security letter’’ (NSL), is an agent of a foreign power.

Prior to the USA PATRIOT Act, the FBI could use NSLs, which serve as nonjudicial subpoenas issued at the sole discretion of the FBI, to demand business,

Internet, credit and telephony records, among other things. Before doing so, agents

had to at least certify internally that the NSL pertained to a particular individual,

who was acting on behalf of a foreign power.

The USA PATRIOT Act effectively allows the FBI to issue NSLs for certain financial, transactional, electronic communications and credit records without any individualized suspicion. It changed the standard again to relevance to any investigation. The SAFE Act treats NSLs much like it does Section 215 orders—it maintains

the expansive scope of the law, but includes the appropriate, minimal standard of

individual suspicion; provides an explicit right to challenge the order; and retains

the secrecy requirement, all of which take into account the sensitivity of national

security investigations without taking away any necessary government powers.

In short, the SAFE Act simply modifies the powers expanded by the USA PATRIOT Act, by making the government’s exercise thereof subject to the basic Fourth

Amendment notion that before the government ‘‘pierces’’ an individual’s right to privacy of information that can be used as evidence against them, it must have a reasonable suspicion that the person has either violated the law or is serving as an

agent of a foreign power. The government has not shown any reason why it cannot

meet such a nominal burden, and the Fourth Amendment requires it do so.

I believe, especially given that NSLs currently have no judge in the picture at all,

that the SAFE Act’s approach is entirely appropriate.

The committee should also note that Section 505(a) of the USA PATRIOT Act has

been at the center of an ongoing bit of confusion about a 2004 court decision dealing

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2 Judge Marrero’s decision did not affect the rest of Section 505, which amended a number

of different statutes that permit the FBI to issue NSLs for the production of other kinds of

records.

with NSLs and whether that court decision involved the 2001 Act or some other law.

If I may, I would like to take this opportunity to make sure the record is accurate.

In September 2004, Judge Victor Marrero of the United States District Court for

the Southern District of New York issued a 50-page ruling in the case of Doe v.

Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004). In it, he struck down 18 U.S.C. § 2709,

the statute permitting the issuance of NSLs for customer records from Internet,

telephone and other electronic service providers.

The judge struck the provision in its entirety, including the amendments made

by Section 505(a) of the PATRIOT Act. Accordingly, the judge’s decision struck down

all of Section 505(a) of the PATRIOT Act, but also struck down the rest of the NSL

statute with it.2

The judge ruled on two primary grounds—that the Section 2709 NSL is

unreviewable, and that the attached gag order forever barred a recipient from telling anyone anything about the NSL. As the judge noted repeatedly in his opinion,

the USA PATRIOT Act did remove the requirement of individual suspicion from the

statute. For instance, he rests a large part of his First Amendment findings on the

FBI’s post-PATRIOT Act ability to suppress anonymous speech using an NSL.

Judge Marrero proffers two hypotheticals on that score, neither of which would

have been possible prior to the USA PATRIOT Act unless the FBI had specific facts

that the individual target was an agent of a foreign power. The FBI could use an

NSL, the judge notes, to disclose the identity of an anonymous ‘‘blogger’’ critical of

the government, or to discover the identity of everyone who has an e-mail account

through a political campaign.

A number of lawmakers and other interested parties continue to claim, however,

that Doe v. Ashcroft did not strike down a provision of the USA PATRIOT Act because Section 2709, prior to the Act, did not contain a right to challenge and contained a gag order. This is simply not true. First, whenever a statute is struck down

in its entirety any then-operative amendments are also rendered unconstitutional.

It is hard to see how a decision that strikes down every word of one section of a

law can be said not to ‘‘involve’’ that law. Second, the USA PATRIOT Act is the 800-

pound gorilla in the Marrero opinion, and clearly factored into his reasoning.

In sum, then, I urge the Committee to take into account the recent developments

in the USA PATRIOT Act debate, most notably the Mayfield revelations and the indications that the Justice Department is turning to the PATRIOT Act more and

more.

I also respectfully ask that the Committee look closely at the three most contentious PATRIOT Act amendments to foreign intelligence law—Sections 206, 215 and

505—and urge individual members to co-sponsor S. 737, the Security and Freedom

Enhancement Act of 2005, which already enjoys bipartisan support.

As evidenced by the circumstances surrounding the founding of this very Committee, foreign intelligence law, especially as it applies domestically, poses serious

risks to basic constitutional freedoms. While some hail the provisions in the USA

PATRIOT Act as breaking down an artificial ‘‘wall’’ or a ‘‘technicality’’ between the

gathering and use of evidence in criminal cases—matters necessarily subject to the

Bill of Rights—and the gathering of foreign intelligence—appropriately not subject

in its gathering to the limitations in the Bill of Rights—the fact is the artificial

‘‘wall’’ that applied different standards to the gathering and use of each category of

information, is neither artificial nor a technicality: it is the Constitution of the

United States of America. In treating them as one and the same in the name of

fighting ‘‘terrorism’’ or any other threat posed to the good order and safety of our

society, we show disdain for the fundamental underpinning of our constitutional

form of government and the freedoms it enshrines.

Doing otherwise will result in an historical pattern where such laws are made

ever more secret, ever more unchecked and ever more susceptible to abuse; and each

subsequent national ‘‘crisis’’ forces the shades drawn tighter. It is a slippery slope,

down which this Committee, this year in consideration of whether to sunset certain

provisions in the USA PATRIOT Act and in deciding whether to place very modest

and limited—but fundamentally important—restraints on some of the law’s provisions, can help avoid.

Thank you again for this opportunity to comment on the vitally important deliberations of this Committee. I remain available to provide whatever further information the Committee might request.

10

THE HERITAGE FOUNDATION,

Washington, DC, April 18, 2005.

Hon. PAT ROBERTS, Chairman,

Senate Select Committee on Intelligence,

Senate Hart Office Bldg.,

Washington, DC.

Hon. JOHN D. ROCKEFELLER IV, Vice Chairman,

Senate Select Committee on on Intelligence,

Senate Hart Office Bldg.,

Washington, DC.

DEAR CHAIRMAN ROBERTS AND VICE CHAIRMAN ROCKEFELLER: We understand

that the Senate Select Committee on Intelligence will be conducting an oversight

hearing on April 19th concerning the reauthorization of certain provisions of the Patriot Act. We write to provide you with our views concerning that question.

In general, our view is that too much of the debate has focused on the Act not

as it truly is but as people perceive it to be. Most of the proposals for reform mistake the appearance of potential problems and abuse (the myth) with the reality of

no abuse at all. To take but one example, the Inspector General for the Department

of Justice has consistently reported that there have been no instances in which the

Patriot Act has been invoked to infringe on civil rights or civil liberties. See Report

to Congress on Implementation of Section 1001 of the USA Patriot Act (March

2005); see also ‘‘Report Finds No Abuses of Patriot Act,’’ Wa. Post at A2 (Jan. 28,

2004).

Thus, while we acknowledge that any expansion of governmental power comes

with the potential for abuse, that potential does not, in our judgment warrant hesitancy absent some evidence of real abuse. In short, the case for change has not been

made.

The Heritage Foundation has conducted extensive research on the Patriot Act

that provides greater detail on this subject. All of our research is summarized

in a memorandum we published entitled ‘‘The Patriot Act and Related Provisions:

The Heritage Foundation’s Research’’ (http://www.heritage.org/Research/

HomelandDefense/wm612.cfm).

Most saliently for the Committee’s consideration we would respectfully call your

attention to two separate publications that contain much of our substantive analysis

(copies of which we enclose with this letter):

• Rosenzweig, Carafano & Kochems, eds. ‘‘The Patriot Act Reader,’’ (also available

at http://www.heritage.org/Research/HomelandDefense/The-Patriot-Act-Reader.

cfm)

• Meese & Rosenzweig, ‘‘The SAFE Act Will Not Make Us Safer,’’ (also available at http://www.heritage.org/Research/HomelandDefense/lm10.cfm)

We would ask that you make this letter and our publications a part of the record

of the Committee’s hearing. We thank you for the opportunity to share with you our

views.

Sincerely yours,

EDWIN MEESE III,

Ronald Reagan Distinguished Fellow.

PAUL ROSENZWEIG,

Senior Legal Research Fellow.

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PREPARED STATEMENT OF ORIN S. KERR

Mr Chairman, Members of the Committee:

My name is Orin Kerr, and I am an Associate Professor at George Washington

University Law School. It is my pleasure to submit this written testimony concerning the USA Patriot Act. My testimony will contain three parts: first, a brief

explanation of my view that the public debate over the Patriot Act largely has misunderstood the Act; second, an overview of the legal issues raised by foreign intelligence surveillance; and third, an analysis of the constitutional issues raised by orders to compel information such as library records, bookstore records, and Internet

communications.

I. THE DEBATE OVER THE USA PATRIOT ACT

The public debate over the USA Patriot Act has been based on a number of major

misunderstandings about the scope and effect of the law. Millions of Americans believe that the Patriot Act profoundly reshaped the balance between privacy and security in a post-9/11 world. That is simply wrong. The truth is that the law is much

more modest: Most of the Patriot Act consists of minor adjustments to a set of preexisting laws, such as the Foreign Intelligence Surveillance Act and the Electronic

Communications Privacy Act. The Patriot Act left the basic framework of preexisting law intact, offering mostly minor changes to the set of statutory privacy

laws Congress first enacted in the 1970’s and 1980’s. I explained this in greater

depth in a law review article published in January 2003, and stand by that view

today. See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The

Big Brother That Isn’t, 97 Northwestern University Law Review 607 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract—id=317501.

Fortunately, the gap between the perception and the reality of the Patriot Act is

beginning to narrow. In recent months, critics of the Patriot Act have come to acknowledge that most of the Act is consensus legislation that does not raise civil liberties concerns. For example, in an April 5, 2005 press release the American Civil

Liberties Union acknowledged that:

Most of the voluminous Patriot Act is actually unobjectionable from a civil liberties point of view and . . . the law makes important changes that give law

enforcement agents the tools they need to protect against terrorist attacks. A

few provisions . . . must be revised. . . .

See Bipartisan Legislation Would Fix Worst Parts of Patriot Act While Maintaining Key Law Enforcement Powers, available at http://www.aclu.org/SafeandFree/

SafeandFree.cfm? ID=17935&c=206.

Although it is unfortunate that this acknowledgment appeared as late as it did,

the ACLU’s recognition that the Patriot Act debate is actually quite narrow is an

important step to understanding Patriot Act reform. It reveals that the differences

among pre-Patriot Act law, the law under the Patriot Act, and proposals to reform

the Patriot Act tend to be relatively small. Of course, any legislative proposals that

impact government power to conduct criminal or intelligence surveillance must be

treated with the greatest consideration and care. Finding the right balance that

both gives the government the power it needs to investigate terrorist threats and

preserves our precious civil liberties is a very difficult task. At the same time, the

effect of the Patriot Act and the scope of proposed amendments to it are much narrower than press accounts would lead one to believe.

II. OVERVIEW OF THE ISSUES RAISED BY THE USA PATRIOT ACT AND FOREIGN

INTELLIGENCE SURVEILLANCE

I will now turn to an overview of the issues raised by the law of intelligence surveillance to help put the debate in better perspective. At the most basic level, any

modern legal regime that allows the government to investigate crime or terrorism

must address a number of basic methods for acquiring information. In particular,

the law must cover three basic types of authorities:

(1) Authority to conduct physical searches to retrieve physical evidence or collect

information.

(2) Authority to compel third parties to produce physical evidence or disclose information.

(3) Authority to conduct real-time monitoring over communications networks.

In the case of criminal investigations, the legal regime that covers these authorities is well- established. The first authority is governed by the traditional Fourth

Amendment warrant requirement. The police must have a search warrant based on

probable cause to enter a home or business unless a person with apparent or actual

authority over the place consents, exigent circumstances exist, or another exception

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to the warrant requirement applies. The second authority is governed by the Fourth

Amendment rules governing subpoenas. Although many different types of subpoenas

exist, and the rules can vary slightly depending on the type of subpoena, the general

rule is that the police can compel third parties to disclose information in their possession using a subpoena. A subpoena can be issued under a wide range of circumstances: the information need only be relevant to the government’s investigation, and compliance with the subpoena cannot be overly burdensome to the subpoena recipient. Finally, the third authority is regulated primarily by statutory law.

Two different laws apply: the interception of contents such as phone calls and

e-mails is regulated by the Wiretap Act, 18 U.S.C. §§ 2510–22, and the collection of

non-content information such as phone numbers dialed and e-mail addresses is governed by the Pen Register statute, 18 U.S.C. §§ 3121–27. The former requires the

law enforcement to obtain a ‘‘super warrant’’ based on probable cause unless an exception applies, while the latter permits law enforcement monitoring of non-content

information under a relevance court order something like a subpoena.

The law governing monitoring for intelligence purposes is somewhat different

than the law governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear—and generally less strong—than in the

routine criminal context. As a general matter, the few courts that have confronted

how the Fourth Amendment applies to intelligence collection have held that the

rules are somewhat similar to the rules for criminal investigations but also more

flexible. When the Fourth Amendment applies, information and evidence collection

must be reasonable in light of the countervailing demands and interest of intelligence collection. See United States v. United States District Court, 407 U.S. 297,

323–24 (1972); In re Sealed Case, 310 F.3d 717, 745–46 (Foreign Int. Surv. Ct. Rev.

2002). This legal framework appears to place Congress in the primary role of generating the law governing intelligence collection, with the Fourth Amendment serving

as a backstop that reviews Congress’s approach to ensure that it is constitutionally

reasonable.

Congress has responded to the challenge by passing the Foreign Intelligence Surveillance Act, also known as ‘‘FISA.’’ FISA attempts to create a statutory regime for

intelligence monitoring that largely parallels analogous rules for gathering evidence

in criminal cases. FISA covers the three basic authorities as follows: First, 18 U.S.C.

§§ 1821–29 covers the authority to conduct physical searches, a parallel to the provision of the Federal Rules of Criminal Procedure that allows investigators to obtain

a search warrant in criminal cases. Second, 18 U.S.C. §§ 1861–62 and 18 U.S.C.

§ 2709 covers authority to compel third-parties to disclose records and physical evidence, a parallel to the provision of the Federal Rules of Criminal Procedure that

allows the issuance of subpoenas in criminal investigations. Third, 18 U.S.C.

§§ 1801–22 and 18 U.S.C. §§ 1841–45 cover the authority to conduct real-time monitoring over communications networks. Specifically, §§ 1801–22 cover the authority to

obtain the contents of communications, a parallel to the Wiretap Act used in criminal cases, and §§ 1841–45 cover the authority to obtain non-content information, a

parallel to the Pen Register Statute used in crime investigations.

The debates over the FISA-related provisions of the Patriot Act focus primarily

on the second type of authority: powers to compel third parties to produce physical

evidence or disclose information. Specifically, critics object to the weak privacy regulations found in provisions such as Section 215 of the Patriot Act that address the

government’s power to compel third parties to produce physical evidence or disclose

information in intelligence cases. For the most part, these weak privacy regulations

match the standards applied in the analogous criminal context. For example, the

Supreme Court has held that a grand jury subpoena can be issued if the order to

compel seeks information that may be relevant to a criminal investigation. See

United States v. R. Enterprises, Inc., 498 U.S. 292 (1991). This authority ‘‘paints

with a broad brush’’ by design, permitting subpoenas to be issued ordering third

parties to disclose physical evidence and information ‘‘merely on suspicion that the

law is being violated, or even just because . . . assurance [is sought] that it is not.’’

Id. at 297 (quoting United States v. Morton Salt Co., 338 U.S. 632, 642–643 (1950)).

The Supreme Court has justified this low standard on the ground that orders to

compel evidence from third parties are preliminary investigative tools designed to

determine if more invasive forms of surveillance are necessary. ‘‘[T]he Government

cannot be required to justify the issuance of a grand jury subpoena by presenting

evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.’’ See R. Enterprises, Inc., 498 U.S. at 297.

The key question that the Committee must consider is whether a higher standard

is appropriate for orders to compel in the context of intelligence investigations. The

environment of intelligence investigations is somewhat different than the environVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ment of criminal investigations. For example, subpoenas can be easily challenged

and can be complied with under few time pressures, both of which are important

explanations for the light legal regulations of subpoenas. See United States v.

Dionisio, 410 U.S. 1, 10 (1973). At the same time, the harm that intelligence investigations seek to avoid is on average greater than the harm a typical criminal investigation seeks to deter. In addition, it is worth noting that Congress has opted to

provide special privacy protections to protect some types of Internet communications

and stored e-mails, raising the privacy protection beyond that provided by subpoenas. See 18 U.S.C. § 2703. Perhaps Congress should consider a similar approach

in the intelligence context, permitting subpoena-equivalents to be used in some contexts but higher-threshold court orders to be used in other contexts that raise more

substantial privacy concerns.

III. CONSTITUTIONALITY OF ORDERS TO COMPEL LIBRARY RECORDS AND INTERNET

COMMUNICATIONS

The statutory regulation of orders to compel evidence from third parties is particularly important because the Fourth Amendment offers little in the way of regulation of such orders. In this final section, I wish to explain the constitutionality of

orders to compel, specifically in the context of library records and Internet communications obtained from third party providers. My conclusion is that orders to compel the disclosure of evidence from third parties ordinarily do not require probable

cause. Under current law, for example, probable cause is not required to compel libraries to compel library records.

The constitutionality of orders to compel evidence without probable cause can be

justified on two alternative grounds. The first is that the disclosure of information

to third parties has been held to eliminate Fourth Amendment protection in that

information. As the Supreme Court stated in United States v. Miller, 425 U.S. 435,

443 (1976):

This Court has held repeatedly that the Fourth Amendment does not prohibit

the obtaining of information revealed to a third party and conveyed by him to

Government authorities, even if the information is revealed on the assumption

that it will be used only for a limited purpose and the confidence placed in the

third party will not be betrayed.

Under the disclosure rationale of Miller, third parties normally can be ordered to

disclose records held by them without implicating the Fourth Amendment on the

theory that the information was disclosed to them in the course of their coming into

possession of the information.

Applying this rationale, courts have uniformly held that an individual does not

retain Fourth Amendment rights in non-content records that reveal how that individual used an account or service provided by a third party. A person may reasonably believe that the third party will not disclose the information to the police, but

this alone does not create a Fourth Amendment ‘‘legitimate’’ or ‘‘reasonable’’ expectation of privacy in the information. For example, a person does not retain a reasonable expectation of privacy in the information the telephone company retains about

how a particular telephone account was used. See United States v. Fregoso, 60 F.3d

1314, 1321 (8th Cir. 1995). Similarly, a customer does not retain a reasonable expectation of privacy in the information that Western Union retains about how a particular Western Union account was used. See In re Grand Jury Proceedings, 827

F.2d 301, 302–03 (8th Cir. 1987).

The rationale also applies to library records. For example, in Brown v. Johnston,

328 N.W.2d 510 (Iowa 1983), a library challenged a subpoena obtained by a State

investigator who wanted to gather library circulation records to see if anyone had

checked out books relating to cattle mutilation. The Iowa Supreme Court rejected

the argument that an ordinary subpoena could not be used to collect library records:

It is true the State’s investigation was only preliminary; and as Brown and

the library board argue, no suspects were identified nor was the search for information limited to any named library patrons. This does not diminish the

need for the information, however, as we assume the whole purpose in examining the record was to gain enough information so that the investigation could

be narrowed.

The State’s interest in well-founded criminal charges and the fair administration of criminal justice must be held to override the claim of privilege here.

Brown and the library board have cited no cases to us which have reached a

contrary conclusion under similar facts, and we have found none. Id. at 513.

Although I have been unable to find any cases applying the Fourth Amendment

to bookstore records, the same analysis would seem to apply to sales records kept

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by bookstores. To be sure, some State courts have interpreted their own State constitutional provisions to create greater privacy protections to regulate State police

officers in the context of bookstores. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). But as far as I am aware, no court has held that

a person retains a reasonable expectation of privacy in their bookstore customer

records under the Fourth Amendment. As a general matter, the Fourth Amendment

rules that apply to bookstores are the same as the Fourth Amendment rules that

apply to other spaces. See, e.g., Maryland v. Macon, 472 U.S. 463 (1985).

Finally, the same rationale applies to non-content Internet account records. Noncontent Internet account records are disclosed to the ISP, and are not protected

under the Fourth Amendment. See United States v. Hambrick, 55 F. Supp. 2d 504,

508 (W.D. Va. 1999), aff ’d, 225 F.3d 656 (4th Cir. 2000) (unpublished opinion);

United States v. Kennedy, 81 F. Supp. 2d 1103, 1110) (D. Kan. 2000) (same).

This does not mean an individual can never have a reasonable expectation of privacy in information held by third parties. Existing caselaw focuses on whether the

information transferred to the third-party is disclosed to the third party or is sealed

away from them. If a person gives third party a sealed container to hold on their

behalf, then that person retains a reasonable expectation of privacy in the unexposed contents of that sealed container. See, e.g., United States v. Most, 876 F.2d

191, 197–98 (D.C. Cir. 1989); United States v. Barry, 853 F.2d 1479, 1481–83 (8th

Cir. 1988). For that reason, a person retains a reasonable expectation of privacy in

the contents of sealed postal letters or packages sent via UPS or FedEx until the

point that the letters and packages arrive at their destination. See Ex Parte Jackson, 96 U.S. (6 Otto) 727, 733 (1877); Walter v. United States, 447 U.S. 649, 651

(1980).

It is unclear under current law how the sealed/unsealed distinction applies to disclosed information such as Internet communications, particularly in the context of

the contents of Internet communications. Courts may conclude that by sending an

e-mail, the user discloses that e-mail to an ISP under Miller. On the other hand,

courts may conclude that the contents of e-mail can be analogized to the contents

of a sealed letter, and thus retain Fourth Amendment protection. At the current

time, all we know is that the Fourth Amendment does not protect non-content information held by ISPs, and may or may not protect content information held by ISPs.

Notably, this uncertainty is part of what led Congress to impose greater statutory

protections in the case of e-mail contents sought in criminal investigations under

18 U.S.C. § 2703(a).

Finally, existing cases suggest that a subpoena or equivalent order to compel

without probable cause may be constitutionally sufficient even if a suspect retains

a reasonable expectation of privacy in the information. The case here are sparse,

as the courts have decided few cases in which the government ordered a third party

to disclose sealed packages. But the few cases on this question suggest that the government can subpoena information even if that information is protected by a reasonable expectation of privacy; no probable cause warrant is required. See United States

v. Barr, 605 F. Supp. 114, 119 (S.D.N.Y. 1985) (permitting subpoena served on

third-party mail service for undelivered mail); United States v. Schwimmer, 232

F.2d 855, 861–63 (8th Cir. 1956) (permitting subpoena served on third-party storage

facility for private papers in facility’s possession); Newfield v. Ryan, 91 F.2d 700,

702–05 (5th Cir. 1937) (permitting subpoena served on telegraph company for copies

of defendants’ telegrams).

In light of these cases, current law points to the use of orders to compel evidence

as being constitutional in the Fourth Amendment in most if not all cases without

a requirement of probable case. The most difficult and least clear cases are orders

to compel content records, such as the contents of e-mails and sealed letters. In most

circumstances, however—and clearly in the case of non-content records such as library records—orders to compel evidence do not require probable cause under the

Fourth Amendment.

PREPARED STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR

NATIONAL SECURITY STUDIES

While effective counterterrorism and counterintelligence require that agencies

share relevant information, sections 203 and 905 of the USA Patriot Act fail to address the real difficulties in such sharing: How to determine what information is

useful for counterterrorism and counterintelligence; how to determine what information would be useful if shared; how to identify whom it would be useful to share

it with; and how to ensure that useful and relevant information is timely recognized

and acted upon. To the contrary, the approach of the Patriot Act—which can fairly

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be summarized as share everything with everyone—can be counted on to obscure

and make more difficult the real challenge of information sharing.

Widespread and indiscriminate warehousing of information about individuals violates basic privacy principles. Amending the Patriot Act to require targeted rather

than indiscriminate information sharing would restore at least minimal privacy protections and substantially increase the likelihood that the government could identify

and obtain the specific information needed to prevent terrorist acts.

Section 203 of the USA Patriot Act allows unrestricted sharing of sensitive information gathered by law enforcement agencies with the CIA, the NSA, immigration

authorities, the Secret Service, and White House officials. Such sharing is not limited to officials with responsibility for terrorism matters, nor are there any safeguards regarding the subsequent use or dissemination of such information by such

officials (so long as the use is within the official duties of the recipient). Section 203

allows the sharing of all information that is in any way related to any American’s

contacts with or activities involving any foreign government, group, or individual.

(Section 203 allows the sharing of ‘‘foreign intelligence information,’’ ‘‘foreign intelligence’’ and ‘‘counterintelligence.’’ The definition of ‘‘foreign intelligence information’’ included in section 203 is tied to threats and potential threats of terrorism,

sabotage and clandestine intelligence-gathering, the national defense and foreign affairs, § 203(a)(1)(iv), 203(b)(2)(C), and 203(d)(2). However, the definitions of ‘‘foreign

intelligence’’ and ‘‘counterintelligence’’ are not even that limited.) Section 203 applies to all intercepts of telephone conversations. It applies to all confidential information obtained by a grand jury, which has the power to subpoena virtually any

records or testimony from any person merely at the request of a prosecutor.

Section 905 overlaps with section 203, but makes such sharing mandatory. It requires the Attorney General and the head of any other law enforcement agency to

‘‘expeditiously disclose’’ to the Director of Central Intelligence (and now the new Director of National Intelligence) all ‘‘foreign intelligence’’ acquired during a law enforcement investigation. The Attorney General may exempt only those classes of foreign intelligence whose disclosure ‘‘would jeopardize an ongoing law enforcement investigation or impair other significant law enforcement interests.’’ Section 905 suffers from the same defects as section 203: it covers the most sensitive grand jury

information and wiretap intercepts regardless of relevance, and contains no limits

on the use or redisclosure of the information by intelligence agency staff. ‘‘Foreign

intelligence’’ includes anything related to any American’s contacts with a foreign

government, group or person.

The Act sets no standards or safeguards for use of this information. While it requires the Attorney General to issue rules, those rules simply require that information concerning citizens and legal permanent residents be marked as such. Existing

intelligence agency protocols are so broad as to allow intelligence agencies to keep

all information obtained under section 203 or 905. See EO 12333 section 2.3.

Two and a half years after the passage of the Patriot Act, the 9/11 Commission

staff confirmed that ‘‘there is no national strategy for sharing information to counter

terrorism.’’ The Department of Justice has yet to explain how these Patriot Act provisions will focus the bureaucracies on identifying what information is useful to locate actual terrorists, analyzing that information, and determining what actions to

take based on the information. To the contrary, the provisions essentially direct

agencies simply to dump massive volumes of unanalyzed information on other agencies. They facilitate the construction of a vast intelligence data base on Americans.

And they effect an extraordinary change in the capability and authority of the foreign intelligence agencies, including the CIA, to keep information on Americans.

Congress should amend both sections 203 and 905 to provide some simple privacy

safeguards, which will also ensure that information sharing is done in a more effective way.

Current law offers no protections against abuse. Too much information may be

turned over to the CIA and others, including virtually all information about any

American’s contacts with any foreigner or foreign group, including humanitarian organizations, for example. Existing rules provide virtually no protection against authorized government compilation of dossiers on millions of Americans and use of

those dossiers in intelligence operations.

Congress could provide some modest protections. The amendments proposed

below—limiting shared information to information relating to terrorism or counterintelligence, limiting its dissemination to officials working on those matters, requiring judicial approval, and requiring marking to prevent redissemination—would not

interfere with the needs of counterterrorism or counterintelligence.

While the Justice Department claims that any modifications to the informationsharing provisions would mean that agencies ‘‘would be required to identify proper

legal authority prior to sharing or disseminating information outside of the colVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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1See, H.R. REP. No. 236, 107th Cong., 1st Sess., pt. 1(2001), at 8, available at http://judiciary.house.gov/legacy/107–236p1.pdf.

lecting agency or community,’’ such objection misses the point. See Justice Department, USA Patriot Act: Sunsets Report, April 2005. The proposed amendments

would not change the legal authorities for sharing information, they would simply

help ensure that information is actually analyzed and determined to be useful to

counterterrorism and counterintelligence. None of the uses of information outlined

by the Justice Depaitinent in its Patriot Act report would be prohibited because all

of them relate to terrorism.

But Congress should act to ensure that those agencies which first obtain information and are best positioned to understand its context do the work necessary to determine whether the information may be useful or relevant to other agencies. When

in doubt, they should of course err on the side of transferring the information, but

they should exercise some judgment in doing so. Ideally, they should describe the

potential usefulness of the information when distributing it to other agencies. We

note that intelligence officials are already reporting that under the current regime

there is too much indiscriminate sharing of useless information.

Specifically Congress should consider the following modifications.

1. When information is gathered pursuant to judicial power, the court’s approval

should be required before transferring the information to intelligence agencies,

White House personnel, or other law enforcement agencies in order to ensure that

there is some real need for more widely distributing the information. Accordingly,

court approval for sharing criminal wiretap intercepts of conversations and e-mail

and secret grand jury information should be obtained, except when there is no time

to obtain such approval in order to prevent an imminent terrorist act or the flight

of a suspect.

2. The information that should be shared with the intelligence agencies, the White

House, etc., should be limited to information relevant to terrorism or counterintelligence, rather than all information concerning any foreign contacts, the vast majority of which have nothing to do with terrorism. If the information transferred by

law enforcement to the intelligence community were limited to ‘‘foreign intelligence

information’’ as that term is defined in the Foreign Intelligence Surveillance Act, it

would offer some protection against the CIA and others constructing a data base on

the domestic activities of Americans. This safeguard was included in the Patriot Act,

H.R. 2975 (107 Cong.), as approved by the House Committee on the Judiciary in October 2001.1

3. The information should be shared only with those officials who are directly involved in terrorism or counterintelligence.

4. There should be procedures for marking and safeguarding the shared information so these limits can be enforced and to protect against the redissemination of

the information beyond these limits, much as classified information is marked and

stored. Confidential grand jury information should be marked as such and intercepts of Americans’ conversations and e-mails should be marked to prohibit indiscriminate circulation.

CONCLUSION

One of the most basic protections against government abuses has been the principle that a government agency should only collect information about individuals

that it needs for a specific and articulated purpose, should use it only for the purposes for which it was collected, should not keep it any longer than necessary, and

should not share it with other government agencies except for very good reasons.

The Patriot Act violates that principle by adopting the approach that myriad government agencies should collect, share and maintain forever as much information

on as many people as possible. Requiring the minimal protection that the government articulate why specific information could be useful for counterterrorism or

counterintelligence before widely distributing it would help keep the government focused on the information needed to locate the next attackers, instead of warehousing personal information about millions of Americans.

Chairman ROBERTS. I now recognize the distinguished Vice

Chairman.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman. I will

follow the same procedure you have. I think it’s a wise one. I’m

ready to hear the witnesses.

[The prepared statement of Vice Chairman Rockefeller follows:]

29

PREPARED STATEMENT OF HON. JOHN D. ROCKEFELLER III, VICE CHAIRMAN

This week and next the Committee will hold two open hearings on the Patriot Act.

The Patriot Act, which was enacted soon after the attacks of September 11, 2001,

contains 10 titles. Nine of those titles are permanent law.

One title of the Patriot Act—Title II on Enhanced Surveillance Procedures—has

16 provisions that will cease to have effect, or sunset, on December 31, 2005. In addition, the recently enacted Intelligence Reform Act authorizes the use of the Foreign Intelligence Surveillance Act in the case of so-called ‘‘lone wolf ’’ terrorists. That

new authority is also subject to sunset at the end of this year.

Congress should resolve two questions this year: first, on the basis of experience

or further reflection since September 11, 2001, should any of the expiring authorities be amended; and second, as originally enacted or as amended, should they be

made permanent?

The process of evaluation of the expiring provisions is under way. In response to

a request from Senator Feinstein, the Department of Justice has submitted to Congress a lengthy ‘‘Sunsets Report’’ which sets forth a case for each of the 16 provisions of the Patriot Act that will sunset at the end of this year.

The Judiciary Committee has begun a series of Patriot Act hearings. It heard 2

weeks ago from the Attorney General and the FBI Director, something our Committee will do next week on April 27th. We have been informed that the Judiciary

Committee plans to hold an additional hearing in May.

Members of the Senate have introduced bills that propose amendments to expiring Patriot Act provisions. There are also proposals to amend other provisions of the

Act. On our Committee, Senator Corzine has joined a bipartisan group of 11 Members in cosponsoring S. 737, the ‘‘Security and Freedom Enhancement Act,’’ a bill introduced by Senator Craig to amend several authorities in the Patriot Act. Senators

Wyden and Corzine are cosponsors of S. 317, the ‘‘Library, Bookseller, and Personal

Records Privacy Act.’’

In short, Congress has begun a serious effort to examine the expiring provisions

of the Patriot Act. There were good reasons to act quickly after the September 11

attacks. Because of the need for speed then, it was wise to require, through a sunset

provision, that there be a further evaluation of portions of the Act after several

years of experience.

We now have an opportunity to assess carefully what surveillance and search

powers are needed in gathering intelligence about terrorism and other threats. I

look forward to hearing testimony and working with colleagues on our Committee

and on the Judiciary Committee. Our goal, of course, should be to ensure that there

is a sound, long-term basis for the effective gathering of intelligence in a manner

consistent with our Constitution and values.

Our panel today will assist us in beginning that effort. The members of the

panel—Jim Dempsey of the Center for Democracy and Technology, Heather Mac

Donald of the Manhattan Institute for Policy Research, and Gregory Nojeim of the

ACLU are all distinguished participants in the public debate about the Patriot Act.

I look forward to their testimony today and to next week’s testimony from the Administration.

In addition, the Committee has received four statements for the record: (1) from

former Attorney General Edwin Meese and Paul Rosenzweig of the Heritage Foundation; (2) from former Congressman Bob Barr, chairman of a recently created coalition named Patriots to Restore Checks and Balances; (3) from Kate Martin, Director

of the Center for National Security Studies; and (4) Orin Kerr, Associate Professor

of Law at the George Washington University Law School.

I am pleased that the Chairman has asked for and obtained unanimous consent

to place these additional statements on our record of this hearing. The statements

will make an important contribution to the Committee’s understanding of the issues

before us. I thank the authors of each and the witnesses who are here today for

their assistance to the Committee.

Chairman ROBERTS. We will go in the order of introduction. Mr.

Nojeim, would you like to open up, please?

[The prepared statement of Mr. Nojeim follows:]

PREPARED STATEMENT OF GREGORY T. NOJEIM

Chairman Roberts, Vice Chairman Rockefeller and Members of the Committee:

I am pleased to appear before you today on behalf of the American Civil Liberties

Union and its more than 400,000 members, dedicated to preserving the principles

30

1 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept

and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107–56, 115 Stat. 272. 2This statement is adapted from a longer memorandum that examines a number of other Patriot Act and related issues in greater depth, including immigration, material witness and

‘‘enemy combatant’’ detentions, criminal ‘‘sneak and peek’’ search warrants, the crime of material support of terrorism and the definition of domestic terrorism. See Memo to Interested Persons Outlining What Congress Should Do About the Patriot Act Sunsets, March 28, 2005, available at: http://www.aclu.org/news/NewsPrint.cfm?ID=17846&c=206. 3Final Report of the National Commission on Terrorist Attacks Upon the United States (‘‘The

9/11 Commission Report’’) 294–95 (2004) (boldfaced recommendation) 4 Id.

5 Eric Lichtblau, Specter Voices Frustration Over Briefing on Patriot Act, N.Y. Times, Apr. 13,

2005.

of the Constitution and Bill of Rights at this rare, and crucial, public oversight hearing on USA PATRIOT Act of 2001.1

The Patriot Act was passed by Congress in 2001 just 6 weeks after the terrorist

attacks of September 11. Although the act passed by wide margins, members on

both sides of the aisle expressed reservations about its impact on fundamental freedoms and civil liberties. As a result, Congress included a ‘‘sunset clause’’ providing

that over a dozen provisions will expire on December 31, 2005, if Congress does not

act to renew them.

A number of the provisions that will expire are within the jurisdiction of this committee, including some of the most controversial provisions. This statement’s main

focus is on those Patriot Act intelligence provisions that pose the greatest risk for

civil liberties.2

Congress should use the upcoming debate over the renewal of parts of the Patriot

Act as an opportunity to reassert its rightful role in determining law enforcement

and national security policy in the post-9/11 context, which has waned as the power

of the executive branch has waxed. Before re-authorizing any intelligence power,

this committee should require the executive branch to meet the standard articulated

by the bipartisan 9-11 Commission. • First, Congress should re-examine the specific provisions that sunset, taking

care not to renew any provision unless the government can show ‘‘(a) that the power

actually materially enhances security and (b) that there is adequate supervision of

the executive’s use of the powers to ensure protection of civil liberties.’’ 3

• Second, ‘‘[i]f the power is granted, there must be adequate guidelines and oversight to properly confine its use.’’ 4

• Third, because the issues of national security and civil liberties posed by antiterrorism powers that are not part of the Patriot Act sunset are at least as serious

as any posed by those provisions that do sunset, Congress should undertake a

broader review of anti-terrorism powers, both within and outside of the Patriot Act,

using the same standard of review. • Finally, Congress should resist efforts by the executive branch to evade searching review of its existing powers, both under the Patriot Act and under other legal

authorities, by shifting the debate to new anti-terrorism legislation, such as proposals for administrative subpoenas or new death penalties.

Congress may not be able to fully review or assess the effectiveness, and impact

on civil liberties, of some anti-terrorism powers that the executive branch was

granted in the Patriot Act. The lack of meaningful information about the use of

many powers is sometimes a direct result of excessive secrecy in the executive

branch, and sometimes the result of necessary secrecy. In any case where sufficient

information is not available to undertake a thorough review, Congress should set

a new sunset date and impose additional reporting requirements to facilitate a proper review, rather than cede those powers permanently to the executive branch.

Because many domestic intelligence authorities operate in complete secrecy, this

committee plays a particularly critical role in determining whether specific intelligence powers ‘‘actually materially enhance security.’’ Only an intensive and painstaking process of examining the facts regarding the use of these powers can answer

that question.

This committee was created in large part to perform just that function. It should

not be content with general statements of the Patriot Act’s usefulness or selective

accounts of how certain sections have been used. Rather, we hope it will aggressively and thoroughly examine whether administration claims that certain powers

are vital to the prevention of terrorism are born out by specific facts.

Until now, the government has fallen short. Just last week, Judiciary Chairman

Arlen Specter expressed frustration at the Justice Department’s inability to provide

such facts even in a classified setting. ‘‘This closed-door briefing was for specifics,’’

Senator Specter explained. ‘‘They didn’t have specifics.’’ 5

31

CLEAR EVIDENCE OF PATRIOT ACT ABUSES, BUT EXTENT OF PROBLEM STILL SECRET

In its three and one-half years, the government has abused and misused the Patriot Act while seeking significant expansions of powers granted under the Patriot

Act.

Secrecy permeates the Patriot Act, particularly in its expansions of intelligence

authorities. Many powers are accompanied by statutory gag orders. Moreover, the

administration has taken the posture that information that is embarrassing to it

must be kept secret for reasons of national security. For these reasons, it has been

extremely difficult to uncover information about how the Patriot Act has been used,

and even information about whether particular sections have been used at all. The

ACLU has repeatedly sought this information in letters, requests under the Freedom of Information Act (FOIA) and in FOIA litigation.

Despite the efforts of the executive branch to cover up information about how controversial provisions of the Patriot Act have been used, some information has become public. This information is disturbing in and of itself, and may be emblematic

of other abuses that have not yet become public. Appended to this testimony are

some examples of abuses of intelligence powers expanded under the Patriot Act, and

of the chill on the exercise of First Amendment rights that such powers can create.

PATRIOT ACT INTELLIGENCE POWERS: GREATER SECRECY, LESS MEANINGFUL REVIEW

In the debate over the Patriot Act, we ask the committee to pay particular attention to the most intrusive expanded intelligence surveillance techniques.

Secret Records Searches Without Probable Cause or an Ability to Challenge: Library

Records, Other ‘‘Tangible Things,’’ and National Security Letters

Perhaps no sections of the Patriot Act have become more controversial than the

sections allowing the government secretly to obtain confidential records in national

security investigations—investigations ‘‘to protect against international terrorism or

clandestine intelligence activities.’’

National security investigations are not limited to gathering information about

criminal activity. Instead, they are intelligence investigations designed to collect

infounation the government decides is needed to prevent—‘‘to protect against’’—the

threat of terrorism or espionage. They pose greater risks for civil liberties because

they potentially involve the secret gathering of information about lawful political or

religious activities that Federal agents believe may be relevant to the actions of a

foreign government or foreign political organization (including a terrorist group).

The traditional limit on national security investigations is the focus on investigating foreign powers or agents of foreign powers. Indeed, the ‘‘foreign power’’

standard is really the only meaningful substantive limit for non-criminal investigations given the astonishing breadth of information a government agent might decide

is needed for intelligence reasons. The Patriot Act eliminated this basic limit for

records searches, including the power under the Foreign Intelligence Surveillance

Act (FISA) to obtain with a FISA court order any records or other ‘‘tangible things,’’

and the FBI’s power to obtain some records without any court review at all.

• Section 215 of the Patriot Act allows the government to obtain any records, e.g.,

library and bookseller records, medical records, genetic information, membership

lists of organizations, and confidential records of refugee service organizations, as

well as any other ‘‘tangible things’’ with an order from the FISC. The order is based

merely on a certification by the government that the records are ‘‘sought for’’ a national security investigation and the judge is required to issue the order. The order

contains an automatic and permanent gag order. Section 215 is subject to the sunset

clause. Two weeks ago, the government acknowledged for the first time that Section

215 has been used, that it has been used 35 times, and that it was used to obtain

credit, apartment, ISP and other records, but not library or medical records.

• Section 505 of the Patriot Act expanded the FBI’s power to obtain some records

in national security investigations without any court review at all. These ‘‘national

security letters’’ can be used to obtain financial records, credit reports, and telephone, Internet and other communications billing or transactional records. The letters can be issued simply on the FBI’s own assertion that they are needed for an

investigation, and also contain an automatic and permanent nondisclosure requirement. Section 505 does not sunset.

Although such demands never required probable cause, they did require, prior to

the Patriot Act, ‘‘specific and articulable facts giving reason to believe’’ the records

pertain to an ‘‘agent of a foreign power.’’ The Patriot Act removed that standard for

issuing records demands in national security investigations.

As a result, a previously obscure and rarely used power can now be used far more

widely to obtain many more records of American citizens and lawful residents. BeVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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6While the use of national security letters are secret, the press has reported a dramatic increase in the number of letters issued, and in the scope of such requests. For example, over

the 2003–04 holiday period, the FBI reportedly obtained the names of over 300,000 travelers

to Las Vegas, despite casinos’ deep reluctance to share such confidential customer information

with the government. It is not clear whether the records were obtained in part with a national

security letter, with the threat of such a letter, or whether the information was instead turned

over voluntarily or to comply with a subpoena.

cause the requirement of individual suspicion has been repealed, records powers can

now be used to obtain entire data bases of private information for ‘‘data mining’’

purposes—using computer software to tag law abiding Americans as terrorist suspects based on a computer algorithm.

These records search provisions are the subject of two court challenges by the

ACLU. In Muslim Community Association of Ann Arbor v. Ashcroft, No. 03-72913

(E.D. Mich.), the ACLU has challenged section 215 of the Patriot Act First and

Fourth Amendment grounds. As explained in the case example, the ACLU’s challenge has uncovered serious and unconstitutional chilling effects of section 215 on

the exercise of basic freedoms. The district court has not yet ruled in this case.

In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a Federal district court

struck down a ‘‘national security letter’’ records power expanded by the Patriot Act,

agreeing with the ACLU that the failure to provide any explicit right for a recipient

to challenge a national security letter search order violated the Fourth Amendment

and that the automatic secrecy rule violated the First Amendment. The case is now

on appeal before the United States Court of Appeals for the Second Circuit.

There has been some confusion about whether Doe v. Ashcroft struck down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck down, in its entirety, 18

U.S.C. § 2709(b), the national security letter authority for customer records of communications service providers, as amended by section 505(a) of the Patriot Act. The

court referred repeatedly to the Patriot Act in its opinion. To be clear, the court invalidated all of section 505(a) of the Patriot Act. It is simply inaccurate to imply that

the court’s decision was unrelated to the Patriot Act, or that it did not strike down

a provision of the Patriot Act. If the court’s decision is sustained on appeal, section

505(a) of the Patriot Act will no longer have any force or effect.6

Both FISA records demands and national security letters can be used to obtain

sensitive records relating to the exercise of First Amendment rights. A FISA record

demand could be used to obtain a list of the books or magazines someone purchases

or borrows from the library. A FISA record demand could be used to obtain the

membership list of a controversial political or religious organization. A national security letter could be used to monitor use of a computer at a library or Internet cafe ́

under the government’s theory that providing Internet access (even for free) makes

an institution a ‘‘communications service provider’’ under the law.

While both national security letters and FISA records demands cannot be issued

in an investigation of a United States citizen or lawful permanent resident if the

investigation is based ‘‘solely’’ on First Amendment activities, this provides little

protection. An investigation is rarely, if ever, based ‘‘solely’’ on any one factor; investigations based in large part, but not solely, on constitutionally protected speech or

association are implicitly allowed. An investigation of a temporary resident can be

based ‘‘solely’’ on First Amendment activities, and such an investigation of a foreign

visitor may involve obtaining records pertaining to a United States citizen. For example, an investigation based solely on the First Amendment activities of an international student could involve a demand for the confidential records of a student

political group that includes United States citizens or permanent residents.

The expanded scope and broader use of both FISA records demands and national

security letters has exacerbated other constitutional problems with the statute

under both the First Amendment and the Fourth Amendment. Unlike almost every

other type of subpoena or records demand, neither statute contains any explicit

right to file a motion to quash the demand before a court on the ground that the

demand is unreasonable or seeks privileged information. Similarly, both types of

records demands bar the recipient from disclosing that the demand has been issued.

This permanent secrecy order is imposed automatically, in every case, without any

review by a judge, without any right to challenge. The district court ruling in Doe

v. Ashcroft makes clear these problems are severe enough to invalidate the entire

national security letter statute—not just the portions amended by the Patriot Act.

A power to secretly obtain records of ordinary Americans—i.e., Americans who are

not suspected of involvement with any foreign government or terrorist organization—outside of a criminal investigation is a vast power. The government bears the

burden in showing such a power ‘‘actually materially enhances security.’’ If the govVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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7Pub. L. No. 108–458, 118 Stat. 3638.

8The pre-Patriot Act statute required the government to certify that foreign intelligence was

‘‘the purpose’’ of the search. Where the government had both foreign intelligence and criminal

investigation purposes, courts interpreted this language to mean that foreign intelligence purpose had to be the ‘‘primary purpose’’ of the search; otherwise, the government should use its

criminal powers. See In Re Sealed Case, 310 F.3d 717, 726 (For. Intel. Surv. Ct. Rev. 2002) (collecting pre-Patriot Act cases).

ernment sustains this burden, it is clear, as even Attorney General Gonzales has

acknowledged, that additional safeguards must be added.

Recommendation: Congress should bring intelligence records powers (national security letters and FISA records search orders) back into line with basic constitutional

freedoms. Congress should enact the SAFE Act, which restores the requirement of individual suspicion, provides a right to challenge records demands, limits the secrecy

order and provides for a right to challenge the secrecy order.

The SAFE Act (‘‘Security and Freedom Enhancement Act,’’ S. 737) restores the requirement of ‘‘specific and articulable facts giving reason to believe’’ the records involve an ‘‘agent of a foreign power’’ for both FISA records demands and national security letters. In addition, the SAFE Act makes explicit the right to file a motion

to quash the records demands because they are unreasonable, contrary to law, or

seek privileged information. The SAFE Act also sets standards for a judicially imposed, temporary secrecy order that can be challenged by the recipient of a records

demand. Finally, the SAFE Act provides a right to notice, and an opportunity to

challenge, before information from a FISA records search or national security letter

search can be used in a court proceeding.

As the Attorney General concedes is necessary, Congress should certainly make

clear what the government has now conceded should be the law—that the secrecy

order does not prevent recipients from discussing records demands internally or obtaining legal advice. Without public scrutiny, the potential for unreasonable ‘‘fishing

expeditions’’ using a secret, unreviewable records power is simply too great.

Secret Searches and Surveillance of Homes and Offices

A government search or electronic surveillance of a home or office generally requires a warrant based on probable cause of crime under the Fourth Amendment.

As a general rule, the owner of the home or office is entitled to notice of the search.

Foreign intelligence searches have been an exception to this rule. They do not require criminal probable cause and forbid notice to the owner.

The special power to secretly search a home or office, without ever notifying the

owner, is among the most intrusive domestic surveillance powers available to the

Federal Government. Such ‘‘black bag jobs’’ were the hallmark of national security

investigations run amok, including COINTELPRO and other investigations of civil

rights activists, anti-war activists, and other Americans who in the end were guilty

of nothing more than peacefully opposing government policies.

The inappropriate use of a secret search power, without court oversight, led directly to warrantless wiretaps of civil rights leaders and, eventually, an unauthorized ‘‘black bag job’’ at the Watergate, sending a shock wave through the Nation and

prompting thorough and searching reviews of the intelligence community. These reviews led Congress to enact important reforms of intelligence powers, including the

passage of the Foreign Intelligence Surveillance Act (FISA) and the creation of this

committee.

While FISA secret searches and wiretaps pre-date the Patriot Act, two vital protections that cabined such searches until 2001 have been seriously eroded by

amendments that are subject to the December 31, 2005 sunset. First, section 218

of the Patriot Act allowed the government to obtain a FISA secret search order even

where the ‘‘primary purpose’’ of the search was not foreign intelligence. Second, for

searches of so-called ‘‘lone wolf ’’ terror suspects, section 6001 of the Intelligence Reform and Terrorism Prevention Act of 20047 eliminated, for the first time, the basic

requirement applied by the Foreign Intelligence Surveillance Court for all FISA secret searches and surveillance: that probable causes exists that the target of the

search is a foreign power or agent of foreign power.

Section 218 of the Patriot Act. This provision of the Patriot Act takes aim at a

provision of FISA designed to ensure against the government using FISA improperly

as an end-run around the Fourth Amendment for criminal suspects. Prior to the Patriot Act, government officials had to certify that the primary purpose of a secret

FISA search was to obtain foreign intelligence.8 Section 218 of the Patriot Act weakened this standard, allowing agents to obtain these warrants so long as they certify

that ‘‘a significant purpose’’ of the search is foreign intelligence.

34

9 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d

611, 624 (For. Intel. Surv. Ct. 2002). 10 Id. at 615. 11See In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. Rev. 2002).

The danger of section 218’s lower standard is that the government will cut corners

in criminal cases. Because foreign intelligence no longer must be the primary purpose of the search, the government can use FISA as a substitute for traditional

criminal powers. As a result, now the government can—for what are primarily

criminal searches—evade the Fourth Amendment’s constraints of probable cause of

crime and notice to the person whose property is being searched.

Brandon Mayfield is a case where such corners may have been cut. As described

in more detail in the appendix, Mr. Mayfield is a Portland, Oregon resident who is

a convert to Islam and a civil rights advocate. Mr. Mayfield was wrongly accused

by the government of involvement in the Madrid bombing as a result of a evidence,

including a mistaken fingerprint identification, that fell apart after the FBI

re-examined its case following its arrest and detention of Mr. Mayfield on a material

witness warrant.

As Attorney General Gonzales acknowledged at a hearing before the Senate Judiciary Committee, Section 218 of the Patriot Act was implicated in the secret search

of Mr. Mayfield’s home. The FBI secretly entered the home of an innocent man it

wrongly suspected of a crime without a warrant based on criminal probable cause.

It did so because the Patriot Act had made it easier to conduct such a search with

a FISA search order. While there, agents took hundreds of photographs, copied four

computer hard drives and seized 10 DNA samples. Prior to the Patriot Act, it is

doubtful the search could have taken place under FISA, and instead would likely

have been governed by normal search warrant procedures and the exacting standard

of criminal probable cause.

Recommendation: Congress should permit limited access to FISA applications, consistent with national security, where FISA-gathered information is used in a criminal case. Congress can do so by enacting legislation applying CIPA to FISA surveillance. It should also ensure that prosecutors do not direct intelligence surveillance.

If the government is able to meet the burden of showing section 218 ‘‘actually materially enhances security,’’ the Mayfield case and the danger of future abuses shows

the need for additional safeguards. Without re-building the much-maligned ‘‘wall’’

between foreign intelligence and criminal investigations, Congress should follow the

approach of the Foreign Intelligence Surveillance Court (FISC), restoring its power

to serve its proper supervisory function to prevent the misuse of FISA. Congress

should empower the court to make sure foreign intelligence investigations are not

directed by Federal prosecutors, although prosecutors and criminal investigators

should be allowed full briefings on such investigations.

In its first (and, so far, only) public opinion, the FISC, in an opinion by Judge

Lamberth, expressed alarm at the fact that ‘‘criminal prosecutors will tell the FBI

when to use FISA (perhaps when they lack probable cause)’’ of crime, and noting

its highly intrusive aspects, including:

• a foreign intelligence standard instead of a criminal standard of probable cause;

• use of the most advanced and highly intrusive techniques for intelligence gathering; and

• surveillances and searches for extensive periods of time; based on a standard

that the U.S. person is only using or about to use the places to be surveilled and

searched, without any notice to the target unless arrested and prosecuted, and, if

prosecuted, no adversarial discovery of the FISA applications and warrants.’’ 9

Judge Lamberth observed that the FISC’s members had ‘‘specialized knowledge,’’

had reviewed ‘‘several thousand FISA applications,’’ and were ‘‘mindful of the FISA’s

pre-eminent role in preserving our national security, not only in the present national emergency, but for the long term as a constitutional democracy under the rule

of law.’’ 10 It reasoned that, as a result, it retained supervisory powers to protect

against the misuse of FISA for criminal investigative purposes.

The Foreign Intelligence Surveillance Court of Review reversed this opinion, reasoning that section 218 of the Patriot Act had stripped the FISC of this role.11 If

Congress reauthorizes section 218, it should amend it to make clear that the provision does not prohibit the FISC from adopting guidelines to prevent the direction

and control of foreign intelligence investigations by prosecutors for law enforcement

ends.

Congress should also explore a remedy for one of the serious problems inherent

in making FISA searches more available in what are primarily criminal investigations: the lack of ‘‘adversarial discovery for FISA applications and warrants.’’ This

35

12Final Report of the National Commission on Terrorist Attacks Upon the United States 79,

540 n.94 (2004). 13See In re Sealed Case, supra, at 738 (relying on ‘‘foreign power’’ probable cause to hold that

FISA secret searches and surveillance satisfy Fourth Amendment standards of reasonableness).

is in marked contrast to the extensive discovery available to criminal defendants,

enabling the court to hold government officials accountable for unlawful searches

and surveillance.

Congress should enact legislation making available to the defense such ‘‘adversarial discovery of FISA applications and warrants’’ using the carefully crafted Classified Information Procedures Act (CIPA). Last Congress, the ACLU strongly supported S. 1552, the Protecting the Rights of Individuals Act, sponsored by Senators

Lisa Murkowsky (R-AK) and Ron Wyden (D-OR), which included this provision at

section 9. An identical provision was also included as section 401 of S. 2528, the

Civil Liberties Restoration Act, sponsored by Senators Kennedy (D-MA), Corzine (DNJ) and Leahy (D-VT), among others.

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004. Section 6001 further eroded the basic safeguards included in FISA by authorizing, for

the first time, secret searches and surveillance of homes and businesses where there

is neither criminal probable cause nor probable case that the person is acting on

behalf of any foreign power.

FISA rests what would otherwise plainly be unconstitutional searches (because

they are not based on probable cause of crime) on an alternate showing: probable

cause that those individuals are acting on behalf of a foreign power. By eliminating

this alternate showing for non-citizen visitors to the United States suspected of

being ‘‘lone wolf ’’ terrorists, we believe section 6001 violates the Fourth Amendment.

Moreover, section 6001 was not needed to address deficiencies in the use of FISA

search powers uncovered after September 11, its original rationale. The National

Commission on Terrorist Attacks Upon the United States (‘‘9–11 Commission’’) uncovered a number of serious, structural breakdowns in the intelligence community

prior to September 11. A lack of legal authority to collect intelligence information

was not among its findings.

Section 6001 has erroneously been described as necessary to respond to the government’s failure to seek a warrant to search the laptop computer of suspected terrorist Zacarias Moussaoui. The 9–11 Commission rejected that conclusion, finding

that government agents ‘‘misunderstood and misapplied’’ guidelines regarding FISA

search warrants, and that these mistakes contributed to their failure to seek either

a criminal or FISA warrant in the Moussaoui case.12 The 9-11 Commission did not

recommend any change to existing legal authorities, including FISA.

In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter noted, with respect to this proposed change, that the Department of Justice was

unable to provide even a single case, even in a classified setting, that explained why

what became section 6001 was needed. As the report states, ‘‘In short, DOJ sought

more power but was either unwilling or unable to provide an example as to why.’’

Section 6001 could do serious harm to the government’s anti-terrorism efforts if

a court concludes that the surveillance it authorizes violates the Fourth Amendment, making the evidence obtained by such surveillance inadmissible. The ‘‘foreign

power’’ standard—which section 6001 eliminates for non-citizens—is integral to the

rationale given by the Foreign Intelligence Surveillance Court of Review in its opinion upholding FISA surveillance against a constitutional challenge.13

This committee should review carefully actual applications for secret searches or

surveillances under the new power provided by section 6001 to determine whether

such searches or surveillance could have been undertaken using traditional criminal

powers, and whether section 6001 ‘‘actually materially enhances security.’’ If the

government satisfies this test and Congress decides to re-authorize section 6001,

Congress should consider additional safeguards.

Recommendation: Congress should modify section 6001 to provide a presumption

that an individual who is involved in international terrorism is acting for a foreign

power. This compromise, offered by Senator Dianne Feinstein (D-CA) to legislation

that became section 6001, would give the Foreign Intelligence Surveillance Court

more discretion to ensure against misuse of FISA.

When S. 113, the legislation that became section 6001, was being debated in the

Senate, Senator Dianne Feinstein offered a compromise that the ACLU supported.

The Feinstein amendment would have formally preserved the FISA requirement

that the FISA court determines that the target of a surveillance order is an agent

of a foreign power before a surveillance order is authorized, but it allowed the court

36

14 Id. at 426–27 (quoting S. Rep. No. 1097, 90th Cong., 2nd Sess., at 66 (1968), reprinted in

U.S. Code Cong. and Admin. News 1968, at 2190).

to presume such agency based on conduct that does not necessarily show such agency. Because the amendment would preserve some discretion on the part of the FISA

court to determine that an individual should not be subject to surveillance because

they are not, in fact, an agent of a foreign power, the ACLU urges Congress to adopt

the Feinstein amendment if it decides to reauthorize section 6001.

Wiretapping and Electronic Surveillance Without Judicial Safeguards Limiting

Orders to the Targets of an Investigation

‘‘General warrants’’—blank warrants that do not describe what may be searched—

were among those oppressive powers used by the British crown that led directly to

the American Revolution. As a result, the framers required all warrants to ‘‘particularly describ[e] the place to be searched, and the persons or things to be seized.’’

The same ‘‘particularity’’ requirements apply to wiretap orders. In the landmark

case United States v. Donovan, 429 U.S. 413 (1977), a majority upheld the Federal

criminal wiretap law, noting that Congress had redrafted the law to include safeguards regarding, among other things, the need to identify targets of surveillance

in response to the ‘‘constitutional command of particularization.’’14

Congress has also authorized Federal judges to issue electronic surveillance orders

in foreign intelligence cases, including wiretaps of telephone conversations and

intercepts of the content of other electronic communications (faxes, e-mail, etc.).

The Patriot Act erodes the basic constitutional rule of particularization:

• Section 206 creates ‘‘roving wiretaps’’ in foreign intelligence cases. As amended

by later legislation, these wiretaps do more than allow the government to get a single order that follows the target of surveillance from telephone to telephone. The

government can now issue ‘‘John Doe’’ roving wiretaps that fail to specify a target

or a telephone, and can use wiretaps without checking that the conversations they

are intercepting actually involve a target of the investigation. Section 206 is subject

to the Patriot Act’s sunset clause.

• Section 207 greatly increases the length of time that foreign intelligence wiretaps may be used without any judicial oversight—from 90 days to 6 months for the

initial order, with renewals allowing surveillance to continue for a year before require judicial approval. Section 207 is subject to the Patriot Act’s sunset clause.

Section 206 of the Patriot Act: Foreign intelligence ‘‘roving wiretaps.’’ ‘‘Roving wiretaps’’ are a particularly potent form of electronic surveillance, allowing the government to obtain a single wiretap order that follows a target as the target uses different telephones or devices to communicate. Prior to the passage of the Patriot Act,

roving wiretaps were available in criminal investigations (including criminal investigations of terrorists), but were not available in foreign intelligence investigations.

Because roving wiretaps contain more potential for abuse than traditional wiretaps, which apply to a single telephone or other device, when Congress enacted roving wiretaps for criminal investigations, it insisted on important privacy safeguards.

First, a criminal wiretap must specify either the identity of the target or the communications device being used. In other words, a surveillance order may specify only

the target, or only the phone, but it must specify one or the other. Second, a criminal wiretap that jumps from phone to phone or other device may not be used unless

the government ‘‘ascertains’’ that the target identified by the order is actually using

that device.

When Congress enacted the Patriot Act, it extended ‘‘roving wiretap’’ authority to

FISA investigations, but did not include the common sense ‘‘ascertainment’’ safeguard. Shortly thereafter, the newly enacted roving wiretap authority was broadened by the Intelligence Act for fiscal year 2002, which authorized wiretaps where

neither the target nor the device was specified. As a result, FISA now allows ‘‘John

Doe’’ roving wiretaps—wiretaps that can follow an unknown suspect from telephone

to telephone based only on a potentially vague physical description, opening the door

to surveillance of anyone who fits that description, or anyone else who might be

using that telephone.

Because of this danger, if Congress is satisfied the government has met its burden

to show FISA roving surveillance authority ‘‘actually materially enhances security’’

and should be renewed, it should include additional privacy safeguards.

Recommendation: Congress should include an ascertainment requirement and

should require electronic surveillance orders to specify either a target or a telephone

or other device, by enacting the bipartisan SAFE Act of 2005.

Congress should tighten the FISA roving wiretap so that it has the same safeguards for privacy as criminal roving wiretaps. Supporters of the Patriot Act often

37

argue that changes to the law were needed to give the government the same powers

in foreign intelligence investigations that it already had in criminal investigations.

To the extent that is appropriate, it is fair to insist that the same safeguards apply

as well.

Section 2 of S. 737, the SAFE Act, would provide just such safeguards. While it

preserves FISA roving surveillance authority, it also makes sure that these privacy

safeguards, which apply to criminal roving wiretaps, would also apply to FISA roving wiretaps.

Section 207 of the Patriot Act. The time periods for foreign intelligence surveillance orders were already much longer than for criminal surveillance orders even

before the passage of the Patriot Act. Permitting surveillance to continue for a year

with no judicial review opens the door for abuse. The Justice Department’s main

justification for allowing review to continue for such a long period has been the ability to conserve attorney time and other resources needed to process renewal applications.

If the administration can show the sharp increases in FISA secret searches and

surveillance enabled by this and other provisions ‘‘actually materially enhances security,’’ Congress should consider the cost in lost oversight of highly intrusive powers. It may be possible to get the benefits while preserving oversight.

Recommendation: Congress should extend the sunset provision on this section and

conduct an investigation to determine whether it should shorten the periods for FISA

surveillance, and it should consider providing additional resources to the Justice Department and the FISC.

Congress should consider whether it can shorten these periods by conducting a

searching review of FISA surveillance conducted under the lengthened periods. Was

it productive for the entire period it was authorized? If the problem is a lack of resources, the solution should not be to shortchange judicial oversight. Precisely because there is increased pressure to engage in surveillance early to prevent terrorism before it happens, there is an increased danger of abuse and an increased

need for judicial oversight. Congress should provide sufficient funds both to the Department of Justice and to the Foreign Intelligence Surveillance Court to handle the

important work of reviewing surveillance orders.

Internet Surveillance Without Probable Cause: Web Browsers, E-Mail, and ‘‘Pen/

Trap’’ Devices

While the ‘‘probable cause’’ standard has long applied both to physical searches

and electronic intercepts of the content of conversations, surveillance techniques

that monitor only who is sending or receiving information (often called ‘‘routing information’’), but do not intercept the content of communications, do not require probable cause.

For telephones, pen registers and ‘‘trap and trace’’ devices have long been available to track the telephone numbers dialed, and the telephone numbers of incoming

calls. These numbers could then be cross-referenced, through a reverse telephone directory, to identify to whom a target of a pen/trap device is calling. A similar technique, ‘‘mail covers,’’ is used to track the outside cover of an envelope sent through

the mail. Neither technique requires probable cause, although a court order may be

needed.

Prior to the passage of the Patriot Act, it was unclear how the law allowing pen/

trap devices for telephone communications applied to communications over the

Internet. Federal agents argued they should be allowed, without showing probable

cause or obtaining a surveillance order, to monitor the ‘‘header’’ information of an

e-mail and the URL of a web page.

Privacy advocates urged caution, noting that Internet communications operate

very differently than traditional mail or telephone communications. For example,

the ‘‘header’’ information of an e-mail contains a wealth of information, such as a

subject line or an entire list of thousands or even hundreds of thousands of addressees. A monitoring order would allow the government to obtain, without probable

cause, a political, charitable or religious organization’s electronic mailing list. In

short, e-mail headers provide far more content than is typical on the outside of an

envelope.

Likewise, the ‘‘link’’ at the top of a web browser contains not only the website visited, but also the precise pages viewed, or the search terms or other information entered by the user on a web-based form. For example, in the popular search engine

‘‘google,’’ a user looking for information about a drug such as ‘‘viagra’’ generates the

web address http://www.google.com/search?hl=en&lr=&q=viagra.

Section 214 of the Patriot Act broadens the use of Internet surveillance, without

probable cause, by extending the pen/trap surveillance technique from a relatively

narrow arena of facilities used by agents of foreign powers or those involved in

38

international terrorism to include any facility. Pen/trap surveillance can now be

used far more widely to monitor the Internet use of ordinary Americans.

Pen/trap for the Internet suffers from a basic flaw: in extending this intrusive surveillance authority to the Internet, Congress did not adequately take account the

differences between the Internet and traditional communications that make intercept of Internet ‘‘routing information’’ far more intrusive as applied to Internet communications.

If the administration can show that section 214 of the Patriot Act ‘‘actually materially enhances security’’ and should be renewed, Congress should insist on additional protections to take into account the differences between Internet and traditional telecommunications.

Recommendation: Congress should insist on rules that clearly define content and

prohibit the use of techniques that acquire content without a surveillance order based

on probable cause. In addition, because obtaining ‘‘routing information’’ in the Internet world is even more intrusive than pen registers and trap and trace devices applied to traditional telecommunications. Congress should enact the SAFE Act, which

provides that pen/trap orders require more specific justification.

Congress should insist on rules that:

• Clearly define content for Internet communications. Congress should be specific.

For e-mails, at the very least, the subject line and any private (i.e., ‘‘bcc’’) list of

addresses should be off limits without a surveillance order based on probable cause.

For Internet browsing, obtaining any information behind the top level domain name

should likewise be barred without probable cause. For example, an agent could obtain a list of websites visited (like www.aclu.org) but not of webpages visited (like

www.aclu.org/patriotact) or search tetras entered (like http://www.google.com/

search?hl=en&q=aclu+craig+durbin+safe+act).

• Prevent techniques that acquire content from being used in the absence of an

order based on probable cause. The Internet does not work like traditional telephones or the mail. The constitutionally protected content of communications may

be difficult, or even impossible, to separate from the ‘‘routing information.’’ For example, e-mail may be sent through the Internet in discrete ‘‘packets,’’ rather than

as a single file, to permit the information to be sent along the most efficient route,

then reassembled at the destination, using codes that are attached to the packets

of information. The burden should be on the government to develop techniques that

do not incidentally acquire content. In the absence of those techniques, a surveillance order based on probable cause should be required. Federal agents should not

be put in the untenable position of incidentally gathering constitutionally protected

content in the course of obtaining ‘‘routing information,’’ and then being forced to

delete or ignore the content information.

The debate over extending pen/trap authority, which is not based on probable

cause, to Internet communications, is not about whether criminals or terrorists use

the Internet. Of course they do. The question is how to ensure that Congress does

not erode the privacy of everyone by authorizing surveillance techniques, not based

on probable cause, that fail to account for the differences between traditional communications and Internet communications.

Because pen/trap authority as applied to the Internet is particularly intrusive,

even with rules that define content more properly, Congress should insist that pen/

trap orders require more specific justification. The ACLU urges adoption of the

SAFE Act. Section 6(b) of the act would require, for FISA pen/trap authority, more

than a simple certification that the information is relevant to a foreign intelligence

investigation.

While the SAFE Act would not require probable cause for FISA pen/trap authority

it adds teeth to the relevance test. The SAFE Act would require the government to

provide a ‘‘statement by the applicant of specific and articulable facts showing there

is reason to believe’’ the information obtained by the pen/trap device is relevant to

the investigation.

CONCLUSION: RESTORING CHECKS AND BALANCES

The Patriot Act provisions that pose the greatest challenges share certain common

themes. As a result of gag orders, or delayed notification, they permit surveillance

with a far greater degree of secrecy than is common in most government investigations. They do not allow affected parties the opportunity to challenge government

orders before a judge. Finally, because the substantive standards for some forms of

surveillance have been modified, weakened, or even eliminated, the role of the Foreign Intelligence Surveillance Court in checking government abuse has been made

less meaningful.

39

15Pub. L. No. 108–177, Section 374 (Dec. 13, 2003).

This committee’s review of the Patriot Act and related legal measures in the ongoing effort to combat terrorism is needed to ensure continued public support for the

government’s efforts to safeguard national security. The controversy over the Patriot

Act reflects the concerns of millions of Americans for preserving our fundamental

freedoms while safeguarding national security. To date, resolutions in opposition to

parts of the Patriot Act and other actions that infringe on fundamental rights have

been passed in in 377 communities in 43 states including five state-wide resolutions.

Such widespread concern, across ideological lines, reflects the strong belief of

Americans that security and liberty need not be competing values. Congress included a ‘‘sunset provision’’ precisely because of the dangers represented by passing

such far-reaching changes in American law in the aftermath of the worst terrorist

attack in American history. Now is the time for Congress to complete the work it

began when it passed the Patriot Act, by bringing the Patriot Act back in line with

the Constitution.

EXAMPLE OF PATRIOT ACT ABUSE—BRANDON MAYFIELD

On March 11, 2004 a bomb exploded in Madrid killing hundreds of people. The

government obtained from Spanish authorities fingerprint images from a blue bag

found at the scene containing seven detonators thought to be of the same type used

in the bombing. The FBI concluded that the fingerprints matched those of a Portland attorney, Brandon Mayfield. He was arrested on May 6 on a material witness

warrant.

Court documents show that Brandon Mayfield, a convert to Islam, was investigated at least in part because of his religion. For example, the material witness

warrant alleged, among other things, that Mayfield, a Muslim, was seen driving

from his home to the Bilal mosque, where he worshipped.

On March 24, 2005, the FBI admitted to Mayfield’s attorney that his home had

been secretly searched under the Foreign Intelligence Surveillance Act (FISA),

which the Patriot Act amended. The FBI admitted that it copied four computer hard

drives, digitally photographed several documents, seized 10 DNA samples and took

approximately 335 digital photographs of the residence and Mr. Mayfield’s property.

At an April 5 hearing before the Senate Judiciary Committee, Attorney General

Gonzales specified that Sections 207 and 218 of the Patriot Act had been used. Section 207 lengthened the allowable time allotted to the FBI to secretly search

Mayfield’s home. Section 218 makes it easier to use intelligence authorities in criminal cases.

The Patriot Act facilitated FISA search of Mayfield’s home. Before the law’s passage, the government could conduct a FISA search only if the ‘‘primary purpose’’ of

the search was to gather foreign intelligence information. Under Section 218 of the

Patriot Act, gathering such information need only be a ‘‘significant purpose’’ of a

FISA search. The Mayfield search occurred directly after the Madrid bombing as

part of the FBI’s investigation. This suggests strongly that the ‘‘primary purpose’’

of the search was not to gather foreign intelligence information, but to uncover incriminating evidence.

Prior to the Patriot Act, authorities would not have been able to use FISA to conduct absolutely secret ‘‘black bag’’ intelligence searches where the primary purpose

of the search was criminal investigation.

EXAMPLE OF PATRIOT ACT ABUSE—UNCONSTITUTIONAL NATIONAL SECURITY LETTERS

Section 505 of the Patriot Act expanded the government’s authority to use National Security Letters (NSL’s) to seize information from businesses and others, with

no judicial approval. Prior to the Patriot Act, the government could use NSL’s to

obtain records about alleged terrorists or spies—people who were thought to be ‘‘foreign powers’’ or their agents. Financial, travel and certain Internet Service Provider

(ISP) records are accessible under the NSL authority. Section 505 changed the law

to allow the use of NSL’s to obtain such records about anyone without the limitation

that they be agents of foreign powers. In the Intelligence Authorization Act of

200415 Congress further expanded the NSL letter authority to permit seizure of casino and other records.

On a date that the government maintains must be kept secret for reasons of national security, the FBI served an NSL on an ISP the identity of which the government also claims must be kept secret for reasons of national security. Through its

NSL authority at 18 U.S.C. Section 2709, the government can seek certain sensitive

40

16Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at 63–64. The court concluded that

hundreds of NSL’s had been requested by the FBI from October 2001 through January 2003,

and hundreds must have been issued during the life of the statute. The government takes the

position that even the number of NSL’s it issues cannot be disclosed for reasons of national security, though it has disclosed publicly to Congress a number of such uses. See, e.g. ‘‘H.R. 3179,

The ‘‘Anti-Terrorism Intelligence Tools Improvement Act of 2003,’’ Hearings Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary,

108th Cong. (2004) (statement of Thomas J. Harrington, Deputy Assistant Director of the FBI

Counterterrorism Division). 17 Id. at pp. 44–45. 18 Id. at p. 75. 19 Id. at p. 93.

customer records from ISPs—including information that may be protected by the

First Amendment—but the ISP can never reveal that it has been served with an

NSL, and nothing in the statute suggests that the NSL can be challenged in court.

On behalf of the ISP and itself, the ACLU challenged the statute as amended by

the Patriot Act, as a violation of the First and Fourth Amendments because it does

not impose adequate safeguards on the FBI’s authority to force disclosure of sensitive and constitutionally protected information and because its gag provision prohibits anyone who receives an NSL from disclosing in perpetuity and to any person

even the mere fact that the FBI has sought information.

On September 28, 2004, Judge Victor Marrero of the Southern District of New

York issued a landmark decision striking down as unconstitutional the NSL statute

and its gag provision. The court struck down the entire statute as violative of

Fourth and First Amendment rights, thus rendering any use of the statute an abuse

of those rights. The court found that there have been hundreds of such uses.16 It

found that the statute was abusive in practice because it sanctioned NSL’s that coerced immediate compliance without effective access to court review or an opportunity to consult with counsel:

The form language of the NSL served upon [plaintiff ISP] Doe, preceded by

an FBI phone call, directed him to personally provide the information to the

FBI, prohibited him, his officers, agents and employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by

the letter. Nor did the FBI inform Doe personally that such judicial review of

the issuance of the NSL or the secrecy attaching to it was available. The court

concludes that, when combined, these provisions and practices essentially force

the reasonable NSL recipient to immediately comply with the request.17

In finding the statute unconstitutional under the Fourth Amendment, Judge

Marrero referred repeatedly to the amendments made by Section 505. He noted as

an example of the kind of abuse now authorized by the statute that it could be used

to issue a NSL to obtain the name of a person who has posted a blog critical of the

government, or to obtain a list of the people who have e-mail accounts with a given

political organization.18 The government could not have obtained this information

with an NSL prior to the Patriot Act amendment in Section 505, unless the blogger

or the people with such accounts were thought to be foreign powers or agents of foreign powers. The court also cited Patriot Act Section 505 as a reason it struck down

the statute on First Amendment grounds. The court determined that the tie to foreign powers—eliminated by Section 505—‘‘limits the potential abuse’’ of the statute19 and distinguishes it from other intelligence search provisions that retain the

requirement of such a tie and include a statutory gag provision.

Because of the gag in 18 U.S.C. Section 2709(c), the government obtained a sealing order it has consistently used to suppress wholly innocuous information in the

litigation. Until the court struck down the statute, the government prevented the

ACLU from disclosing that it represented someone that had been served with an

NSL, and from even acknowledging that the government had used a statutory

power. The government has demanded that the ACLU redact a sentence that described its anonymous client’s business as ‘‘provid[ing] clients with the ability to access the Internet.’’ Ironically, the government even insisted that the ACLU black out

a direct quote from a Supreme Court case in an ACLU brief:

‘‘The danger to political dissent is acute where the Government attempts to

act under so vague a concept as the power to protect ‘domestic security.’ Given

the difficulty of defining the domestic security interest, the danger of abuse in

acting to protect that interest becomes apparent.’’

The gag in Section 2709 would effectively prevent an ISP (or its lawyers) from

disclosing other abuses of Section 2709. For example, if the government was targeting someone because of their First Amendment activity, or if the ISP was being

41

20Muslim Community Association of Ann Arbor v. Ashcroft, Civil Action No. 03–72913 (E.D.

Mich., filed July 30, 2003). 21 Nazih Hassan Decl. ¶ 22. 22 John Doe (Member of MCA) Decl. ¶¶ 8–9. 23Mary Lieberman Decl. ¶¶ 23–27.

forced to turn over First Amendment protected information about associational activities, the gag would bar disclosure of this abuse.

EXAMPLES OF THE CHILLING EFFECTS OF PATRIOT ACT SECTION 215

In July 2003, the ACLU filed suit on behalf of six community and non-profit organizations because it had learned of a serious chilling effect that resulted from Section 215 of the Patriot Act.20 Excerpts from some plaintiffs’ declarations highlight

how Section 215 chills political speech and hinder privacy rights:

The president of a community association: ‘‘The enactment of Section 215 has significantly changed the way members of [the Muslim Community Association of Ann

Arbor, or MCA] participate in the organization. Many previously active members

have become passive ones. Attendance at daily prayer services, educational forums,

and social events has dropped. Some members have totally withdrawn their membership from MCA. Charitable donations to MCA have decreased.’’ 21

A prominent member of the association: ‘‘Although I had been very outspoken politically before passage of the Patriot Act, I became afraid after the Patriot Act was

passed that if I continued to remain a vocal and visible Muslim, the government

would target me for investigation and seek private records about me even though

I had not done anything wrong.

‘‘While I was upset by several policies of the U.S. and would have ordinarily taken

a leadership role in protesting these policies, I decided to step out of the limelight

to lessen the chances that the government would target me for an investigation

under the Patriot Act.’’ 22

The administrator of a Christian refugee aid organization: ‘‘Section 215 has

harmed our ability to serve our clients in a number of different ways.

‘‘Section 215 has caused Bridge to redirect resources from client assistance. Resources that we otherwise would have used to help clients are instead being used

to re-evaluate our recordkeeping and record retention policies.

‘‘Because we would not have an opportunity to challenge a Section 215 order before complying with it, we have had no choice but to act now to ensure that our

records do not contain personal or other sensitive information that we could be

forced to disclose to the government. Accordingly, my staff and I have been deciding

on a case-by-case basis to exclude some sensitive information from our files.

‘‘While we believe that we have no practical choice but to adopt this policy, there

is no question that the practice compromises the level of services we can provide

to our clients.’’ 23

42

Patriot Act Intelligence Authorities: Recommended Safeguards

Intelligence Surveillance Power Before 9/11 Now Sunsets? Recommended safeguard (if power is retained)

FISA records FISA search orders .....................

Patriot Act § 215

FISA search orders were available only for

certain travel-related ‘‘business’’ recordson basis of individualized suspicion connecting records to foreign agent..

Now these orders are available for any and

all ‘‘tangible things,’’ including libraryrecords, medical records, and otherhighly personal records, without individual suspicion..

Yes ............................ Congress should enact legislation limiting

such orders to where the FBI has ‘‘specificand articulable facts’’ connecting recordsto foreign agent. In addition, Congressshould provide a right to challenge theorder, limits on the secrecy order and aright to challenge that order, and noticeand an opportunity to challenge the use ofsuch information in court.SAFE § 4 (S. 737, 109th Cong.)

National security letters (no court order required) for financial records, telephone

and ISP bills, consumer credit reports..Patriot Act § 505Intelligence Act for FY 2004§ 334

Were available only where FBI could show

‘‘specific and articulable facts’’ connecting records to foreign agent..

Now available without individual suspicion;

definition of ‘‘financial records’’ greatlyexpanded..

No .............................. Congress shouild enact legislation that restores the requirement of individual suspicion, provides a right to challenge

records demands, limits the secrecy orderand provides for a right to challenge thesecrecy order, and providing notice to persons when the governmennt seeks to useinformation from such demands againstthem in court.SAFE § 5

FISA secret searches and wiretaps in criinal

investigations.Patriot Act § 218

Available only if ‘‘primary purpose’’ is to

obtain foreign intelligence.

Permitted when ‘‘primary purpose’’ is

criminal investigation, as long as ‘‘asignificant purpose’’ is foreign intelligence.

Yes ............................ Congress should clarify that FISC retains supervisory power to ensure FISA searches

are not directed or controlled by criminalprosecutorscodify In re All Matters, 218F. Supp. 2d 611 (FISC 2002)

................................................................. ................................................................. ............................. Congress should enact legislation to give the

defense access to FISA applications andwarrants, subject to the national securityprotections in the Classified InformationProcedures ActS. 1552 § 9 (108th Cong.);§ 2528 § 401 (108th Cong.)

43

Extended duration of FISA secret searches

and wiretaps.Patriot Act § 207

Electronic surveillance orders for 90 days,

renewal for 90 days; physical search orders last 45 days.

Initial electronic surveillance for 6 months,

renewals for 1 year; physical search orders last 90 days for U.S. persons and 6months for foreign visitors and temporary residents.

Yes ............................ Congress should extend the sunset of this

provision and investigate whether shortertime periods to ensure continued courtoversight are appropriate, and should increase appropriations to Justice Department and FISC to provide sufficient resources to process applications.

FISA secret searches and wiretaps without

connection to foreign power.Intelligence Reform Act of2004 § 6001

All secret search and surveillance orders

required probable cause of connection toforeign power.

For non-U.S. persons, FISA secret search or

surveillance allowed for persons ‘‘involved in international terrorism’’ or‘‘preparations therefore’’ without any foreign power connection.

Yes ............................ Congress should allow the FISC to presume

that a non-U.S. person involved in international terrorism is acting for a foreigngovernment or organization, but shouldnot make such a presumption mandatoryor eliminate altogether the ‘‘foreignpower’’ requirementFeinstein Amdt. to S. 113(108th Cong.)

FISA roving wiretaps .......................................

Patriot Act § 206Intelligence Act for FY 2002§ 314

No roving wiretaps under FISA, but were

available for criminal investigations.

Now there are FISA roving wiretaps, but

unlike criminal roving wiretaps, FISAroving wiretaps do not need to specifytarget and agents need not ascertaintarget is using that telephone.

Yes ............................ Congress should enact legislation that would

require FISA roving wiretaps to observesame requirements as criminal rovingwiretaps, i.e., they must (1) specify a target, and (2) would have to ascertain target is using that facility.Safe Act § 2

FISA surveillance of the Internet, other communications without probable cause with

pen/trap authority.Patriot Act § 214

Available only for facilities used by agents

of foreign power or those involved ininternational terrorism activities.

Can be used for more broadly, including for

U.S. persons, and regardless of what facility is being monitored.

Yes ............................ Congress should require rules that define

content for the Internet more clearly andprohibit techniques that acquire contentwithout probable cause.(no legislatove language)

....................................................................... ....................................................................... ................................... Congress should require determination of relevance to be based on a statement of

‘‘specific and articulable facts,’’ not onmere certificationSAFE Act § 6

44

STATEMENT OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR

AND CHIEF LEGISLATIVE COUNSEL, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. NOJEIM. Thank you, Chairman Roberts.

Chairman ROBERTS. Please understand that virtually every word

of your very valuable testimony will be in the record and feel free

to summarize and/or do what you deem appropriate under the circumstances.

Mr. NOJEIM. Thank you very much.

It’s a pleasure to testify before you today on behalf of the ACLU

about the intelligence-related provisions of the USA PATRIOT Act.

I come before you mindful that today marks the 10-year anniversary of the Murrah Building in Oklahoma City. That crime and the

attacks of September 11, 2001, underscore a sobering truth—terrorism has been with us for a long time; it will likely be with us

for generations to come. The decisions that you make in the coming

months about the PATRIOT Act will be taken with an eye toward

that reality.

The PATRIOT Act became law only 45 days after the September

11 attacks. Though it acted swiftly, Congress in its wisdom included approximately 12 provisions of the Act that sunset on December 31, 2005. I would focus your attention on just three PATRIOT Act provisions. Two of them deal with records requests

under FISA and the other with roving wiretaps.

The PATRIOT Act expanded two existing sections of law that

allow the FBI to compel people in businesses to produce documents.

Section 505 of the PATRIOT Act expanded the National Security

Letter authority to allow the FBI to issue a letter compelling Internet service providers, financial institutions and consumer credit reporting agencies to produce records about people who use or benefit

from their services. This power was later expanded to include

records of car dealers, boat dealers, jewelers, real estate professionals, pawn brokers, and others.

Section 215 of the PATRIOT Act expanded a different provision

of law to authorize the FBI to more easily obtain a court order requiring a person or business to turn over documents or things

‘‘sought for’’ an investigation to protect against international terrorism or clandestine intelligence activities.

In both cases, the PATRIOT Act removed from the law the requirement that the records produced pertain to an agent of a foreign power—that is, foreign countries, businesses, and terrorist organizations. This significantly expanded law enforcement access to

records pertaining to Americans. In these days of data mining, one

cannot ignore this stark fact: under these provisions the government can easily obtain records pertaining to thousands of Americans who have nothing to do with terrorism, so long as the records

are sought for or are allegedly relevant to one of these investigations.

Neither of these statutes signals the recipient of a letter or order

that the recipient can challenge in court. Both statutes indicate

that the recipient can tell no one that the recipient has received

the order or letter, and that includes any attorney with whom they

might want to consult. In common parlance, the recipient is

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1The Center for Democracy and Technology is a non-profit, public interest organization dedicated to promoting civil liberties and democratic values for the new digital communications

media. Among our priorities is preserving the balance between security and freedom after 9/11.

CDT coordinates the Digital Privacy and Security Working Group (DPSWG), a forum for computer, communications, and public interest organizations, companies and associations interested

in information privacy and security issues.

gagged, and under the statutory language the gag stays in place

forever.

We do not ask that you repeal either of these sections of the law.

Rather, we ask that you restore the agent of a foreign power requirement and that you amend the statute to time-limit the gag,

exempt attorney-client communications from it, and allow for court

challenges. If these changes are made to the NSL statute, they

would satisfy the court that struck down that statute as a violation

of the First and the Fourth Amendment.

In addition, we ask that you conform the multi-point or roving

wiretap authority that was created in the PATRIOT Act for intelligence wiretaps to the corresponding authority for roving wiretaps

that appears in the criminal code. Doing this would entail borrowing from the criminal code the ascertainment requirement that

ensures that law enforcement agents listen in only on the conversations to which the target is a party. It also entails requiring the

government to specify in its application for a wiretap either identity of the person whose phone or computer would be tapped or to

specify the facility that would be tapped.

In short, we’re not asking that law enforcement tools be taken

away, rather that they be made subject to reasonable checks and

balances, such as meaningful judicial oversight and appropriate

disclosure to the public of the use of the power.

Congress could easily adopt all of the reforms that I have mentioned and most of the reforms that I have mentioned in my written testimony by enacting the Security and Freedom Enhancement

Act or SAFE Act, S. 737. This bipartisan legislation, co-sponsored

by Senators Craig and Durbin, contains a series of carefully calibrated adjustments to the PATRIOT Act that would go a long way

toward bringing it more into line with the Constitution and advancing the goal of keeping America both safe and free.

Thank you.

Chairman ROBERTS. We thank you. Mr. Dempsey, please.

[The prepared statement of Mr. Dempsey follows:]

PREPARED STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR DEMOCRACY & TECHNOLOGY1

Mr. Chairman, Sen. Rockefeller, Members of the Committee, thank you for the opportunity to testify at this important hearing. In CDT’s view, there are few if any

provisions in the PATRIOT Act that are per se unreasonable. We see not a single

power in the Act that should sunset. The question before us—and it is one of the

most important questions in a democratic society—is what checks and balances

should apply to those powers. In our view, the investigative powers of the PATRIOT

Act would be just as effective, maybe even more so, if subject to some basic checks

and balances—

• particularized suspicion,

• a minimal factual showing,

• judicial approval,

• eventual notice to targets in a wider range of circumstances, and

• more detailed unclassified reporting to Congress.

In particular, we urge the Committee to enhance the role of the judiciary. We

fully recognize that intelligence investigations must sometimes proceed with speed

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and that they often require secrecy. But in this age of cell phones, ubiquitous Internet access, encryption, BlackBerries and other communications technologies, it

seems unnecessary to vest domestic intelligence agencies with extra-judicial powers.

FBI agents and others operating domestically in intelligence matters—who have to

seek supervisory approval for exercise of PATRIOT Act powers in almost all cases

anyhow—could electronically prepare minimal fact-based applications for access to

information, submit them to judges electronically, and receive approval electronically, promptly, efficiently, but with the crucial check provided by a neutral and detached magistrate.

CDT supports the Security and Freedom Enhancement (SAFE) Act, a narrowly

tailored bipartisan bill that would revise several provisions of the PATRIOT Act. It

would retain all of the expanded authorities created by the Act but place important

limits on them. It would protect the constitutional rights of American citizens while

preserving the powers law enforcement needs to fight terrorism.

PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS

AND OVERSIGHT

At the outset, let me stress some basic points on which I hope there is widespread

agreement: • Terrorism poses a grave and imminent threat to our nation. There are people—

almost certainly some in the United States—today planning additional terrorist attacks, perhaps involving biological, chemical or nuclear materials. • The government must have strong investigative authorities to collect information to prevent terrorism. These authorities must include the ability to conduct electronic surveillance, carry out physical searches effectively, and obtain transactional

records or business records pertaining to suspected terrorists. • These authorities, however, must be guided by the Fourth Amendment, and

subject to Executive and judicial controls as well as legislative oversight and a

measure of public transparency.

SINCE 9/11, THERE HAVE BEEN EGREGIOUS AND COUNTERPRODUCTIVE ABUSES OF CIVIL

LIBERTIES AND HUMAN RIGHTS OUTSIDE THE PATRIOT ACT

Since 9/11, the Federal Government has engaged in serious abuses of constitutional and human rights, some now documented in official reports. The most egregious of these abuses have taken place outside of the PATRIOT Act or any other

Congressional authorization. These include: • The torture at Abu Ghraib and other locations. • The detention of US citizens in military jails without criminal charges. • The detention of foreign nationals in Guantanamo and other locations, under

what the executive branch claimed was unreviewable authority, and the continuing

detention of those individuals after the Supreme Court rejected the Administration’s

claims. • The rendition of detainees to other governments known to engage in torture. • Haphazard and prolonged post 9/11 detentions of foreign nationals in the U.S.,

the physical abuse of some and the blanket closing of deportation hearings. • Abuse of the material witness law to hold individuals in jail without charges.

CONCERNS WITH THE PATRIOT ACT: INTELLIGENCE SEARCHES—BROADER SCOPE AND

GREATER SECRECY CALL FOR COMPENSATING CONTROLS

In the PATRIOT Act, not surprisingly given the pressures under which that law

was enacted and the lack of considered deliberation, the pendulum swung too far,

and Congress eliminated important checks and balances that should now be restored in the interest of both freedom and security. One of the most fundamental

themes of the PATRIOT Act was the elimination of checks and balances on intelligence access to financial, communications and other records.

As this Committee well knows, the FBI operates under two sets of authorities

when investigating international terrorism: criminal and foreign intelligence/counterintelligence. Over the past 25 years, a series of intelligence authorities have

grown up giving investigators the ability to conduct electronic surveillance and obtain access to stored records.

Constitutionally speaking, there are two concerns with national security authorities:

• The scope of intelligence investigations is broader than criminal investigations.

Intelligence investigations cover both legal and illegal activities. In criminal investigations, the criminal code provides an outer boundary, and a prosecutor is often

involved to guide and control the investigation. An intelligence investigation is driven not by a desire to arrest and convict, but by a range of foreign policy interests.

47

The breadth of disclosure of information is greater, including intelligence, military,

diplomacy, policy development, protective, immigration, and law enforcement.

• Intelligence investigations require a greater degree of secrecy than criminal investigations. In criminal cases, an important protection is afforded by notice to the

target and other affected parties as the government collects information and the notice and right to confront when a matter reaches trial. Under the intelligence rules,

persons whose records are accessed by the government are never provided notice unless the evidence is introduced against them in court. While recipients of grand jury

subpoenas can publicly complain about overbreadth and often can even notify the

target, recipients of intelligence disclosure orders are barred from disclosing their

existence.

The PATRIOT Act failed to include protections that can respond to these difference and provide appropriate protection of Fourth Amendment principles.

Particularized Suspicion and a Factual Basis for Disclosure Demands

In the PATRIOT Act, Sections 214 (relating to pen registers under FISA), 215 (relating to travel records and other business records) and 505 (relating to National

Security Letters for credit reports, financial records and communications transactional data) all pose the same set of issues. Prior to the PATRIOT Act, the FBI

was able to obtain access to certain key categories of information upon a showing

that the information pertained to a foreign power or an agent of a foreign power:

• Real time interception of transactional data concerning electronic communications was available with a pen register or trap and trace order issued by the FISA

court.

• Records regarding airline travel, vehicle rental, hotels and motels and storage

facilities were available with a court order issued by the FISA court.

• Financial records, credit reports, and stored transactional records regarding

telephone or Internet communications were available with a National Security Letter issued by a senior FBI official.

In all cases, prior to PATRIOT, these records were available upon a certification

or showing that there were ‘‘specific and articulable facts’’ giving reason to believe

that the person whose records were being sought was a foreign power or an agent

of a foreign power, or had been in contact with a foreign power or its agent. The

FBI complained that this standard was too narrow. Rather than come up with a focused standard, the PATRIOT Act eliminated both prongs of this standard: It eliminated the particularity requirement; and it eliminated the requirement that the FBI

have any factual basis for its interest in certain records.

FBI and DOJ descriptions of these changes in guidance to the field and in statements to Congress suggest that the government does not interpret them as going

as far as they seem to on their face. The FBI indicates that it still names particular

subjects in its applications, and both DOJ and FBI indicate that there is some factual basis for every request.

The fact that records must be relevant to an open investigation is not any real

protection at all. Consider the following: there is undoubtedly a properly authorized

FCI investigation of al Qaeda (or UBL). Under sections 214, 215 and 505, the FBI

could get any records from any entity by claiming that they were relevant to that

investigation. Even though 215 requires a court order, the statute requires the judge

to grant the governments request in whole or part so long as the government makes

the proper assertion—that the records are sought for an existing investigation, however broad that investigation. There is no requirement that the application or the

court order or NSL name the person or account for which information is sought.

Both the particularity requirement and the factual showing requirement should

be made explicit in statute, in order to prevent overbroad or ill-focused searches and

to provide clear guidance to the field and the FISA court.

At the same time, the concept of a National Security Letter should be revisited.

in this age of cell phones, ubiquitous Internet access, encryption, BlackBerries and

other communications technologies, it seems unnecessary to vest domestic intelligence agencies with extra-judicial powers. FBI agents and others operating domestically in intelligence matters—who have to seek supervisory approval for exercise

of PATRIOT Act powers in almost all cases anyhow—could electronically prepare

minimal fact-based applications for access to information, submit them to judges

electronically, and receive approval electronically, promptly, efficiently, but with the

crucial check provided by a neutral and detached magistrate.

Notice

A second area in which the PATRIOT Act lacks adequate protections is in the

area of notice. Under the PATRIOT Act, as in the past, intelligence authorities are

exercised under a cloak of perpetual secrecy. In the world of spy versus spy, surveilVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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lances could go on for many years, the same techniques could be used in the same

context for decades, and known spies would be allowed to operate with no overt action ever taken against them. To a certain extent, these secrecy interests remain

paramount in counter-terrorism investigations. But the wall between intelligence

and criminal has now been brought down, and information collected in intelligence

investigations is now being ever more widely shared and used. The question of when

and how individuals are provided notice needs to be reexamined. Especially individuals whose records were obtained by the government but who were later determined

not to be of any interest to the government should be told of what happened to

them.

In ordinary criminal investigations, the PATRIOT Act created what might be

called ‘‘off the books surveillance.’’ Section 212 authorizes an ISP to disclose e-mail,

stored voicemail, draft documents and other stored information to law enforcement

when government states that there is an emergency involving a threat to life. Section 217 authorizes the government to carry out real-time surveillance when an ISP,

a university, or another system operator authorizes the surveillance on the grounds

that there is a ‘‘trespasser’’ within the operator’s computer network. Under both sections 212 and 217: • There is never a report to a judge. (In contrast, under both Title III and FISA,

when electronic surveillance is carried out on an emergency basis, an application

must be filed after the fact.) • There is no time limit placed on the disclosures or interceptions. (A Title III

wiretap cannot continue for more than 30 days without new approval.) • There is never notice to the person whose communications are intercepted or

disclosed. • The interceptions and disclosures are not reported to Congress.

DOJ, in its defense of Section 217 claims that the privacy of law-abiding computer

users is protected because only the communications of the computer trespasser can

be intercepted. But what if the system operator is wrong? What if there is a legitimate emergency, but law enforcement targets the wrong person. Under Sections 212

and 217, a guilty person gets more notice than an innocent person—the guilty person is told of the surveillance or disclosure but the innocent person need never be

notified. That should be rectified.

Congressional Oversight and Public Reporting

Currently, the Justice Department is required to report to Congress on its use of

some sections of the PATRIOT Act, such as its use of Section 215, but it is not required statutorily to report on its use of other sections. Although the Justice Department, under the pressure of the sunsets and with considerable prodding from Congress, has voluntarily reported some information on its use of other PATRIOT Act

powers, like delayed notice warrants under Section 213, routine and more detailed

reporting would increase both Congressional oversight and public transparency.

Congress should codify reporting requirements, enabling Congress and the public to

assess the efficacy of these provisions and to gauge the likelihood of their misuse.

SPECIFIC PROVISIONS OF THE PATRIOT ACT

In this section, we will comment on specific provisions of the PATRIOT Act.

Sneak and Peek Searches

Section 213, which does not sunset but nevertheless should be re-examined, is a

good idea gone too far. It is also a perfect example of how the PATRIOT Act was

used to expand government powers, without suitable checks and balances, in areas

having nothing to do with terrorism. Finally, it illustrates how, when rhetoric is left

behind, it is possible to frame appropriate checks and balances for what, by any definition, are some especially intrusive powers.

As a starting point, of course, in serious investigations of international terrorists,

the government should be able to act with secrecy. But guess what proponents of

Section 213 never mention? In international terrorism investigations, even before

the PATRIOT Act, the government already had the authority to carry out secret

searches. The Foreign Intelligence Surveillance Act was amended in 1994 to allow

secret searches in intelligence investigations, including international terrorism

cases; before 1994, the Attorney General authorized secret searches in intelligence

investigations of terrorist groups without any judicial scrutiny. And during the limited debate over the PATRIOT Act, reasonable voices proposed that secret searches

be statutorily authorized in criminal investigations of terrorism.

As enacted, however, Section 213 was not limited to terrorism cases. It would astound most Americans that government agents could enter their homes while they

are asleep or their places of business while they are away and carry out a secret

49

search or seizure and not tell them until weeks or months later. It would especially

astound them that this authority is available for all Federal offenses, ranging from

weapons of mass destruction investigations to student loan cases. That is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice Department has admitted that it has used Section 213 sneak and peek authority in nonviolent cases having nothing to do with terrorism. These include, according to the Justice Department’s October 24, 2003 letter to Senator Stevens, an investigation of judicial corruption, where agents carried out a sneak and peek search of a judge’s chambers,

a fraudulent checks case, and a health care fraud investigation, which involved a

sneak and peek of a home nursing care business.

Section 213 fails in its stated purpose of establishing a uniform statutory standard applicable to sneak and peek searches throughout the United States. For a

number of years, under various standards, courts had allowed delayed notice of

sneak and peek searches. The term ‘‘sneak and peek,’’ by the way, was not contrived

by opponents of the PATRIOT Act—before the PATRIOT Act, it was used by FBI

agents, DOJ officials, and judicial opinions. Rather than ‘‘codifying existing case law

under a single national standard to streamline detective work,’’ Section 213 confuses

the law. Rather than trying to devise a standard suitable to breaking and entering

into homes and offices for delayed notice searches, Congress, in the haste of the PATRIOT Act, merely incorporated by reference a definition of ‘‘adverse result’’ adopted

in 1986 for completely unrelated purposes, concerning access to e-mail stored on the

computer of an ISP. Under that standard, not only can secret searches of homes and

offices be allowed in cases that could result in endangering the life of a person or

destruction of evidence, but also in any case that might involve ‘‘intimidation of potential witnesses’’ or ‘‘seriously jeopardizing an investigation’’ or ‘‘unduly delaying

a trial.’’ These broad concepts offer little guidance to judges and will bring about

no national uniformity in sneak and peek cases.

Section 213 also leaves judges guessing as to how long notice may be delayed. The

Second and Ninth Circuits had adopted, as a basic presumption, a 7-day rule for

the initial delay. Section 213 says that notice may be delayed for ‘‘a reasonable period.’’ Does this mean that lower courts in the Ninth Circuit and the Second Circuit

no longer have to adhere to the 7-day rule? At the least, it suggests that courts outside those Circuits could make up their own rules. ‘‘Reasonable period’’ affords

judges considering sneak and peek sneak and peek searches no uniform standard.

If, as Section 213 supporters claim, sneak and peek searches are a ‘‘time-honored

tool,’’ and if courts ‘‘around the country have been issuing them for decades,’’ as

DOJ claims, why did the Justice Department push so hard in the PATRIOT Act for

a Section 213 applicable to all cases? The answer, I believe, is that the sneak and

peek concept stands on shaky constitutional ground, and the Justice Department

was trying to bolster it with Congressional action—even action by a Congress that

thought it was voting on an antiterrorism bill, not a general crimes bill.

The fact is, there is a constitutional problem with Section 213: The sneak and

peek cases rest on an interpretation of the Fourth Amendment that is no longer

valid. The major Circuit Court opinions allowing sneak and peek searches date from

the 1986, United States v. Freitas, 800 F.2d 1451 (9th Cir.), and 1990, United States

v. Villegas, 899 F.2d 1324 (2d Cir.). These cases were premised on the assumption

that notice was not an element of the Fourth Amendment. United States v.

Pangburn, 983 F.2d 449, 453 (2d Cir. 1993) starts its discussion of sneak and peek

searches stating: ‘‘No provision specifically requiring notice of the execution of a

search warrant is included in the Fourth Amendment.’’ Pangburn goes on to state

‘‘The Fourth Amendment does not deal with notice of any kind. . . .’’

Yet in Wilson v. Arkansas, 514 U.S. 927 (1995), in a unanimous opinion by Justice

Thomas, the Supreme Court held that the knock and notice requirement of common

law was incorporated in the Fourth Amendment as part of the constitutional inquiry

into reasonableness. Notice is part of the Fourth Amendment, the court held, directly repudiating the premise of the sneak and peek cases. Wilson v. Arkansas

makes it clear that a search without notice is not always unreasonable, but surely

the case requires a different analysis of the issue than was given it by those courts

that assumed that notice was not a part of the constitutional framework for

searches at all. A much more carefully crafted set of standards for sneak and peek

searches, including both stricter limits of the circumstances under which they can

be approved and a 7-day time limit, is called for.

Section 213’s attempted codification of the sneak and peek authority went too far.

To fix it, Congress should leave the statutory authority in place but add several limitations:

• Congress should narrow the circumstances in which notification may be delayed

so that Section 213 does not apply to virtually every search. Under Section 213, the

government need only show that providing notice would seriously jeopardize an inVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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vestigation or unduly delay a trial. This ‘‘catch-all’’ standard could apply in almost

every case and therefore is simply too broad for this uniquely intrusive type of

search. Congress should allow sneak and peek searches only if giving notice would

likely result in: danger to the life or physical safety of an individual; flight from

prosecution; destruction of or tampering with evidence; or intimidation of potential

witnesses. • Congress should require that any delay in notification not extend for more than

7 days without additional judicial authorization. Section 213 permits delay for a

‘‘reasonable time’’ period, which is undefined in the statute. Pre-PATRIOT Act case

law in the Ninth and Second Circuits stated that 7 days was an appropriate time

period. Indeed, DOJ’ s internal guidance recognizes that 7 days is the most common

period, but also suggests that it may seek much longer delays. Congress should set

a basic 7 day rule, while permitting the Justice Department to obtain additional 7-

day extensions of the delay if it can continue to meet one of the requirements for

authorizing delay in the first instance. • Section 213 only requires a judge to find ‘‘reasonable cause’’ to believe that an

adverse result will happen if notice is not delayed. The Supreme Court has allowed

a limited exception to the notice rule upon ‘‘reasonable suspicion,’’ by allowing police

to enter and provide notice as they were entering when they faced a life-threatening

situation in executing a warrant. Richards v. Wisconsin, 520 U.S. 385 (1997). If

‘‘reasonable suspicion’’ is the standard for delaying notice by minutes, probable

cause would be a more appropriate standard when notice is delayed for days or

weeks.

• Finally, Congress should require the Justice Department to continue to report

on its use of the ‘‘sneak and peek’’ power. Congress should codify a requirement that

the Attorney General report the number of requests for delayed notification, the

number of those requests granted or denied, the number of extensions requested,

granted and denied, and the prong of the statutory test used for each case, so that

Congress and the public can determine if this technique is being narrowly applied.

Even with these changes, sneak and peek searches, especially of homes, stand on

shaky constitutional ground except in investigations of the most serious crimes. Judicial caution is necessary. The reasonable changes outlined above would leave the

statutory authority in place but bring it under more appropriate limitations and

oversight.

Section 215—Business Records

As noted above, Section 215 amended the Foreign Intelligence Surveillance Act to

authorize the government to obtain a court order from the FISA court or designated

magistrates to seize ‘‘any tangible things (including books, records, papers, documents, and other items)’’ that an FBI agent claims are ‘‘sought for’’ an authorized

investigation ‘‘to protect against international terrorism or clandestine intelligence

activities.’’ The subject of the order need not be suspected of any involvement in terrorism whatsoever; indeed, if the statute is read literally, the order need not name

any particular person but may encompass entire collections of data related to many

individuals. The Justice Department often says that the order can be issued only

after a court determines that the records being sought are ‘‘relevant’’ to a terrorism

investigation, but the PATRIOT Act provision says only that the application must

specify that the records concerned are ‘‘sought for’’ an authorized investigation. And

the judge does not determine that the records are in fact ‘‘sought for’’ the investigation—the judge only can determine whether the FBI agent has said that they are

sought for an investigation. The PATRIOT Act does not require that applications

must be under oath. It doesn’t even require that the application must be in writing.

It doesn’t require, as for example the pen register law does, that the application

must indicate what agency is conducting the investigation. Section 505 of the PATRIOT Act similarly expanded the government’s power to obtain telephone and email transactional records, credit reports and financial data with the use of a document called the National Security Letter (NSL), which is issued by FBI officials

without judicial approval.

The Justice Department argues that Section 215 merely gives to intelligence

agents the same powers available in criminal cases, since investigators in criminal

cases can obtain anything with a subpoena issued on a relevance standard. First

of all, as noted, a criminal case is at least cabined by the criminal code—something

is relevant only if it relates to the commission of a crime. But on the intelligence

side, the government need not be investigating crimes—at least for non-U.S. persons, it can investigate purely legal activities by those suspected of being agents of

foreign powers.

There are other protections applicable to criminal subpoenas that are not available under Section 215 and the NSLs. For one, third party recipients of criminal

51

subpoenas can notify the record subject, either immediately or after a required

delay. Section 215 and the NSLs prohibit the recipient of a disclosure order from

ever telling the record subject, which means that the person whose privacy has been

invaded never has a chance to rectify any mistake or seek redress for any abuse.

Second, the protections of the criminal justice system provide an opportunity for

persons to assert their rights and protect their privacy, but those adversarial processes are not available in intelligence investigations that do not end up in criminal

charges.

Use of FISA evidence in criminal cases without full due process

Before the PATRIOT Act, there was no legal barrier to using FISA information

in criminal cases. The wall between prosecutors and intelligence officers, as it

evolved over the years, was a secret invention of the FISA court, the Department’s

Office of Intelligence Policy and Review, and the FBI, with little basis in FISA itself.

It did not serve either civil liberties or national security interests. The primary purpose standard did not have to be changed to promote coordination and information

sharing.

As a result of the PATRIOT Act and the decision of the FISA Review Court, criminal investigators are now able to initiate and control FISA surveillances. The number of FISA has gone up dramatically. The FISA court now issues more surveillance

orders in national security cases than all the other Federal judges issue in all other

criminal cases. In the past, when FISA evidence has been introduced in criminal

cases, it has not been subject to the normal adversarial process. Unlike ordinary

criminal defendants in Title III cases, criminal defendants in FISA cases have not

gotten access to the affidavit serving as the basis for the interception order. They

have therefore been unable to meaningfully challenge the basis for the search. Defendants have also been constrained in getting access to any portions of the tapes

other than those introduced against them or meeting the government’s strict interpretation of what is exculpatory. If FISA evidence is to be used more widely in

criminal cases, and if criminal prosecutors are able to initiate and control surveillances using the FISA standard, then those surveillances should be subject to the

normal criminal adversarial process. Congress should make the use of FISA evidence in criminal cases subject to the Classified Information Procedures Act. Congress should also require more extensive public reporting on the use of FISA, to

allow better public oversight, more like the useful reports issued for other criminal

wiretap orders.

Definition of ‘‘domestic terrorism’’

The PATRIOT Act’s definition of domestic terrorism is a looming problem. Section

802 of the Act defines domestic terrorism as acts dangerous to human life that violate any State or Federal criminal law and appear to be intended to intimidate civilians or influence government policy. 18 USC 2331(5). Under the PATRIOT Act, this

definition has three consequences—the definition is used as the basis for:

• Seizure of assets (Sec. 806)

• Disclosure of educational records (Secs. 507 and 508)

• Nationwide search warrants (Sec. 219)

The definition appears many more times in Patriot II, where it essentially becomes an excuse for analysis and consideration. Congress should either amend the

definition or refrain from using it. It essentially amounts as a transfer of discretion

to the executive branch, which can pick and choose what it will treat as terrorism,

not only in charging decisions but also in the selection of investigative techniques

and in the questioning of individuals.

SAFE ACT

CDT strongly supports that the Security and Freedom Enhancement (SAFE) Act

is a narrowly tailored bipartisan bill that would revise several provisions of the USA

PATRIOT Act. It would retain all of the expanded authorities created by the PATRIOT Act but place important limits on these authorities. It would protect the constitutional rights of American citizens while preserving the powers law enforcement

needs to fight terrorism.

Section 2—FISA Roving Wiretaps (Section 206 of the PATRIOT Act)

The SAFE Act would retain the PATRIOT Act’s authorization of roving wiretaps

and ‘‘John Doe’’ wiretaps under the Foreign Intelligence Surveillance Act (FISA),

but would eliminate ‘‘John Doe’’ roving wiretaps, a sweeping power never before authorized by Congress. A ‘‘John Doe’’ roving wiretap does not identify the person or

the phone to be wiretapped. The SAFE Act would also require law enforcement to

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ascertain the presence of the target of the wiretap before beginning surveillance.

This would protect innocent Americans from unnecessary surveillance.

Section 3—‘‘Sneak & Peek’’ Searches (Section 213)

The SAFE Act would retain the PATRIOT Act’s authorization of delayed notification or ‘‘sneak and peek’’ searches when one of an enumerated list of specific, compelling reasons to delay notice is satisfied. However, it would eliminate the catchall provision that allows sneak and peek searches in any circumstances seriously

jeopardizing an investigation or unduly delaying a trial. The SAFE Act would require notification of a covert search within 7 days, instead of the undefined delay

that is currently permitted by the PATRIOT Act. A court could allow unlimited additional 21-day delays of notice in specific, compelling circumstances.

Section 4—FISA Orders for Library and Other Personal Records (Section 215)

The SAFE Act would retain the PATRIOT Act’s expansion of the FISA records

provision, which allowed the FBI to obtain ‘‘any tangible things’’ from any entity.

However, it would restore a standard of individualized suspicion for obtaining a

FISA order and create procedural protections to prevent abuses. The government

would be able to obtain an order if they could show facts indicating a reason to believe the tangible things sought relate to a suspected terrorist or spy. As is required

for grand jury subpoenas, the SAFE Act would give the recipient of a FISA order

the right to challenge the order, require a showing by the government that a gag

order is necessary, place a time limit on the gag order (which could be extended by

the court), and give a recipient the right to challenge the gag order. The SAFE Act

would require notice to the target of a FISA order if the government seeks to use

the things obtained from the order in a subsequent proceeding, and give the target

an opportunity to challenge the use of those things. Such notice and challenge provisions are required for other FISA authorities (wiretaps, physical searches, pen registers, and trap and trace devices).

Section 5—National Security Letters (Section 505)

The SAFE Act would restore a standard of individualized suspicion for using an

NSL, requiring that the government have reason to believe the records sought relate

to a suspected terrorist or spy: As is the case for grand jury subpoenas, the SAFE

Act would give the recipient of an NSL the right to challenge the letter and the nondisclosure requirement, and place a time limit on the nondisclosure requirement

(which could be extended by the court). As is the case for FISA authorities, the

SAFE Act would give notice to the target of an NSL if the government seeks to use

the records obtained from the NSL in a subsequent proceeding, and give the target

an opportunity to challenge the use of those records.

Section 6—Pen Registers and Trap and Trace Devices (Section 216)

The SAFE Act would retain the PATRIOT Act’s expansion of the pen/trap authority to electronic communications. In recognition of the vast amount of sensitive information that law enforcement can now access, the SAFE Act would create modest

safeguards allowing increased Congressional, public, and judicial oversight of pen/

trap usage. The SAFE Act would require additional Congressional reporting, require

delayed notice to individuals who are targets of pen/traps (pen/trap targets currently

receive no notice, unlike the targets of wiretaps), and slightly raise the burden of

proof for obtaining pen/trap orders. Under the current standard, the government

need only to certify that the information sought is relevant, a certification that a

judge has no power to question. Under the revised standard, the government would

have to show facts indicating a reason to believe that the information sought is relevant.

Section 7—Domestic Terrorism Definition (Section 802)

The PATRIOT Act’s overbroad definition of domestic terrorism could include acts

of civil disobedience by political organizations. While civil disobedience is and should

be illegal, it is not necessarily terrorism. The SAFE Act would limit the qualifying

offenses for domestic terrorism to those that constitute a Federal crime of terrorism,

instead of any Federal or State crime, as is currently the case.

Section 8—FISA Public Reporting

The PATRIOT Act made it much easier for law enforcement to use FISA to conduct secret surveillance on American citizens regardless of whether they are suspected of involvement in terrorism or espionage and whether the primary purpose

of the underlying investigation is intelligence gathering. In 2003, the most recent

year for which statistics are available, the number of FISA wiretaps exceeded the

number of criminal wiretaps for the first time since FISA became law. It is imporVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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tant for Congress and the American people to learn more about how the FBI is

using FISA since the passage of the PATRIOT Act. Therefore, the SAFE Act would

require increased public reporting on the use of FISA.

CONCLUSION

In the debate over the PATRIOT Act, civil libertarians did not argue that the government should be denied the tools it needs to monitor terrorists’ communications

or otherwise carry out effective investigations. Instead, privacy advocates urged that

those powers be focused and subject to clear standards and judicial review. The

tragedy of the response to September 11 is not that the government has been given

new powers—it is that those new powers have been granted without standards or

checks and balances.

• Of course, the FBI should be able to carry out roving taps during intelligence

investigations of terrorism, just as it has long been able to do in criminal investigations of terrorism. But the PATRIOT Act standard for roving taps in intelligence

cases lacks important procedural protections applicable in criminal cases.

• Of course, the law should clearly allow the government to intercept transactional data about Internet communications (something the government was doing

before the PATRIOT Act anyhow). But the pen register/trap and trace standard for

both Internet communications and telephones, under both the criminal wiretap law

and under FISA, is so low that judges are reduced to mere rubber stamps, with no

authority to even consider the factual basis for a surveillance application.

• Of course, prosecutors should be allowed to use FISA evidence in criminal cases

(they did so on many occasions before the PATRIOT Act) and to coordinate intelligence and criminal investigations (there was no legal bar to doing so before the

PATRIOT Act). But FISA evidence in criminal cases should not be shielded from the

adversarial process (as it has been in every case to date).

We need limits on government surveillance and guidelines for the use of information not merely to protect individual rights but to focus government activity on

those planning violence. The criminal standard and the principle of particularized

suspicion keep the government from being diverted into investigations guided by

politics, religion or ethnicity. Meaningful judicial controls do not tie the government’s hands—they ensure that the guilty are identified and that the innocent are

promptly exonerated.

APPENDIX—OVERVIEW OF PATRIOT SUNSETS

Of over 150 provisions in the PATRIOT Act, only 16 provisions are covered by the

sunset. Some of those covered are uncontroversial, while some of the most controversial provisions in the Act are not slated to sunset. The sunset does not apply to

pending investigations.

Here’s what the sunset covers—bold indicates those that are controversial in

CDT’s view—we have no objections to the others:

Sec. 201—certain terrorism crimes as wiretap predicates

Sec. 202—computer fraud as wiretap predicate

Sec. 203(b)—sharing criminal wiretap information w/intelligence agencies

Sec. 204—technical clarification of no conflict between Title III and FISA

Sec. 206—roving taps under FISA

Sec. 207—extending duration of FISA taps of non-us persons

Sec. 209—seizure of voice mail pursuant to warrant

Sec. 212—emergency disclosures of e-mail w/o a court order

Sec. 214—lowering standard for pen registers and trap and trace devices

under FISA

Sec. 215—access to business records under FISA (the ‘‘library records’’

provision)

Sec. 217—interception of computer trespasser communications w/o a

court order

Sec. 218—the ‘‘significant purpose’’ provision

Sec. 220—nationwide service of search warrant for electronic evidence

Sec. 223—civil liability for unauthorized disclosures of wiretap info

Sec. 224—the sunset provision itself

Sec. 225—immunity for compliance with FISA wiretap

A number of highly controversial PATRIOT provisions are not covered by the sunset, and deserve to be reconsidered by Congress, including:

Sec 203(a)—sharing grand jury information

Sec. 213—sneak and peek searches

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Sec. 216—pen registers for the Internet

Sec. 358—exceptions to the financial privacy laws

Sec. 505—‘‘National Security Letter’’ exceptions to privacy laws

Sec. 802—definition of domestic terrorism

STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR,

CENTER FOR DEMOCRACY AND TECHNOLOGY

Mr. DEMPSEY. Mr. Chairman, Vice Chairman Rockefeller, Senators, good afternoon. Thank you for the opportunity to testify at

this important hearing.

Let me start out by stressing that, in the view of the Center for

Democracy and Technology, as a civil liberties advocacy organization, we see few, if any, provisions in the PATRIOT Act that are

per se unjustified. We see not a single power in the Act that needs

to sunset or go away entirely. However, there are serious and legitimate concerns with some of the provisions. That is understandable, given the haste with which the law was enacted.

In 2001, in response to some legitimate complaints of the Administration that the prior rules for counterterrorism investigations

were unreasonable or were out of date or ill-suited to the threat of

terrorism, Congress adopted the PATRIOT Act, but it really didn’t

come up with better rules. In the anxiety of those weeks after

9/11, Congress eliminated the old rules but didn’t replace them

with any new ones, giving the Executive branch too much latitude,

in some cases almost carte blanche.

The question before this Committee and before the Congress between now and December is what checks and balances should

apply to these powers. As I will explain later, the bipartisan SAFE

Act introduced in the Senate offers a set of modest but significant

reforms that will leave all the PATRIOT Act powers in place but

add the checks and balances that were left behind in October 2001.

Unless reasonable checks and balances are added, I think there

are some provisions of the PATRIOT Act that should continue to

be subject to a sunset, perhaps another 5 years, until we can get

those rules right. I think we have in front of us an opportunity to

adopt those checks and balances.

Now, what do I mean by ‘‘checks and balances?’’ Experience

shows that in both criminal and intelligence investigations governmental powers are most effectively exercised and civil liberties are

best protected if the intrusive data-gathering powers of the government are subject to certain principles. First among these is particularized suspicion, by which I mean that the government should

focus its effort on individuals that it has some reason to believe are

involved in planning terrorist activities or are members of a terrorist group or have some connection with a terrorist group or have

some information that might lead to a terrorist group. This isn’t

about the government waiting for the crime to occur. This is in the

context of preventive action, but to have some particularized focus,

some particularized suspicion.

Secondly, the factual basis that the government has to have to

collect information doesn’t have to be very detailed. We’re not talking about anything close to probable cause. It can be as little as

a shared address or the fact that someone received a phone call

from or made a phone call to a suspected terrorist. There has to

55

be some minimum specificity based on some documentable fact.

This is what the FBI sometimes refers to as the predicate.

Third, whenever feasible, intrusive data gathering or surveillance should have the prior approval of a judicial officer. I’ll expand

upon this a little bit more in a second. There may be emergency

exceptions. Under the wiretap law, under FISA, there are emergency exceptions. By and large, the rule for access to both stored

records and real-time communications should involve judicial approval.

Fourth, while secrecy is important and especially important in

intelligence investigations, as a general rule individuals should

eventually receive notice of what has happened to them, when information has been collected about them, at least when the information is used to make decisions about them, not in the intelligence context but in the criminal justice context, in the immigration context. This is the concept of notice.

Finally, of course, there needs to be congressional oversight,

which I know this Committee takes very, very seriously, and the

process that you are in the midst of now is certainly part of that,

and you are to be congratulated on taking the care with looking at

these laws. I also think there could be and needs to be some greater public oversight and accountability. I think it might actually to

some extent increase trust in what the government is doing to actually have some more information about at least how often and to

what extent these authorities are being used.

We have the broader scope of intelligence investigations that are

not only focused on criminal activity, are not cabined-in by the definitions of the criminal law, can clearly be used to collect information about legal activities. They don’t lead up to that crucible of the

trial, with the checks and balances and the adversarial process

that that affords. We have the greater degree of secrecy and necessity. The question is, what compensating controls can be adopted?

In considering specifically some of the investigative techniques of

the PATRIOT Act, I think that there are five questions that you

should ask. First of all, should the government have access to the

information at issue? In almost every case, indeed I would say in

every case covered by the PATRIOT Act, I don’t question that the

government should have the right to the information under certain

circumstances.

Secondly, does the investigation require speed? Obviously, yes,

sometimes it does. Does it require secrecy? Usually, but maybe not

forever, but certainly secrecy. Saying that the government needs

the information, and it needs it quickly sometimes and it has to operate within secrecy, doesn’t answer the final two questions.

Who should be the approving officer for the technique, and what

should be the standard of proof or the standard of justification for

access to certain information?

As I said, in our view, the judicial officer is very important. In

this age of cell phones and Blackberries and encryption and almost

ubiquitous Internet access, it seems unnecessary to vest domestic

intelligence agencies with extrajudicial powers. FBI agents and

others operating domestically in intelligence matters, who have to

seek supervisory approval for exercise of PATRIOT Act authorities

anyhow, could electronically prepare a minimal fact-based applicaVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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tion, submit it electronically to judges, get the approval electronically.

We allow search warrants to be obtained by telephone, orally, the

FBI agent on one end—in criminal cases—the judge on the other

end. The FBI agent can write it down by hand on his end and just

signify the judge’s approval. That’s considered to be a sufficient

warrant under the Fourth Amendment. We can have the speed,

with that neutral magistrate in there asking, ‘‘What is the factual

basis for this? Explain to me a little bit why you think this particular information is relevant or necessary to an intelligence investigation.’’

The mere fact that there is an investigation is not sufficient, obviously, because we have some very broad investigations. There’s

clearly an ongoing investigation of Usama bin Ladin or UBL that’s

clearly a properly justified investigation. The mere fact of the investigation is not enough. Yet the PATRIOT Act says that the government can obtain pen registers, business records, and the transactional data available under National Security Letters just by saying, either to a judge or to itself, ‘‘We have an investigation and

the information is sought for that investigation.’’

That really does not give the kind of focus and the kind of minimal check and balance that is appropriate for intruding upon privacy by conducting a pen register, accessing business records, et

cetera.

We have concerns under the legislation as well with the roving

tap authority. Clearly, there should be roving tap authority in intelligence cases of terrorist groups, just as there are criminal investigations of terrorist groups. As Mr. Nojeim pointed out, in trying

to carry over the criminal concept of roving surveillance into the

FISA—and they are somewhat different statutes, of course, that

use different terminology—the roving tap concept was sort of

pasted in, almost sort of shoe-horned into FISA, and I think a mistake was made in that process and some of the checks and balances

were left out, and some of that may have been unintentional but

certainly now is the time to go back and correct that. I would be

happy to discuss in more length what I have in mind there.

Sneak and peek searches has been another controversial provision. This one is unrelated to intelligence investigations. The sneak

and peek authority has existed for a number of years under FISA,

so intelligence investigations have always had the sneak and peek

authority. We’re talking here about criminal investigations. The

sneak and peek authority in the PATRIOT Act is not limited to terrorism investigations. It applies to all Federal criminal investigations.

The FBI used that to break into a judge’s chambers about a year

ago, using the PATRIOT Act to break into a judge’s chambers and

do a sneak and peek search. They went into an office of a health

care provider in a Medicare investigation, sneak and peek. These

are nonviolent crimes, and yet they were using PATRIOT Act authority, again without, in our view, adequate checks and balances.

Mr. Chairman, with that I will conclude. I’m happy to go into

greater depth on some of the individual provisions—the use of

FISA in criminal proceedings, et cetera. Thank you, Mr. Chairman.

57

Chairman ROBERTS. Mr. Dempsey, we thank you for your comprehensive statement. I am sure that some of those matters will be

taken up by the questions. Let me just say that this open hearing

is the first in a series of three that are designed to educate Members as the Senate considers the repeal of the sunset provisions

and modifications to other intelligence authorities.

On Thursday, the Committee will hold a closed hearing on operational matters relating to the Act. Next Wednesday, we will hear

from the Attorney General and the Director of the FBI and the Director of Central Intelligence.

Ms. MacDonald.

[The prepared statement of Ms. MacDonald follows:]

PREPARED STATEMENT OF HEATHER MACDONALD, SENIOR FELLOW, MANHATTAN INSTITUTE FOR POLICY RESEARCH, NEW YORK, NY

Thank you, Mr. Chairman and members of the Committee. My name is Heather

Mac Donald. I am a senior fellow at the Manhattan Institute for Policy Research,

a think tank in New York City. I have written extensively on homeland security

for the Washington Post, the Wall Street Journal, the Los Angeles Times, and City

Journal, among other publications. I appreciate the opportunity to testify today on

this important topic.

The most powerful weapon against terrorism is intelligence. The United States is

too big a country to rely on physical barriers against attack; the most certain defense is advanced knowledge of terrorist plans.

In recognition of this fact, Congress amended existing surveillance powers after

9/11 to ready them for the terrorist challenge. The signal achievement of these

amendments, known as the Patriot Act, was to tear down the regulatory ‘‘wall’’ that

had prevented anti-terrorism intelligence agents and anti-terrorism criminal agents

from sharing information. That wall was neither constitutionally nor statutorily

mandated, but its effect was dire: it torpedoed what was probably the last chance

to foil the 9/11 plot in August 2001. Thanks to the Patriot Act, all members of the

anti-terrorism community can now collaborate to prevent the next tertoristrike before it happens.

Besides dismantling the wall, the Patriot Act made other necessary changes to

surveillance law: it extended to terrorism investigators powers long enjoyed by

criminal investigators, and it brought surveillance law into the 21st century of cell

phones and e-mail. Where the act modestly expands the government’s authority, it

does so for one reason only: to make sure that the government can gather enough

information to prevent terrorism, not just prosecute it after the fact.

Each modest expansion of government power in the Patriot Act is accompanied

by the most effective restraint in our constitutional system: judicial review. The act

carefully preserves the traditional checks and balances that safeguard civil liberties;

4 years after its enactment, after constant monitoring by the Justice Department’s

Inspector General and a host of hostile advocacy groups, not a single abuse of government power has been found or even alleged.

This record of restraint is not the picture of the act most often presented in the

media or by government critics, however. The Patriot Act has been the target of the

most successful disinformation campaign in recent memory. From the day of its passage, law enforcement critics have portrayed it as an unprecedented power grab by

an administration intent on trampling civil rights.

As lie after lie accumulated, the administration failed utterly to respond. As a result, the public is wholly ignorant about what the law actually does. Hundreds of

city councils have passed resolutions against the act; it is a safe bet that none of

them know what is in it. The Committee is to be congratulated for taking the time

to get the truth out.

Though the charges against the Patriot Act have been dazzling in their number,

they boil down to four main strategies. This afternoon I would like to dissect those

strategies, with particular reference to the most controversial sections of the act:

sections 215 and 213. Discredit the anti-Patriot Act strategies in those contexts, and

you have the key for discrediting them in every other context.

STRATEGY #1: HIDE THE JUDGE

The most pervasive tactic used against the Patriot Act is to conceal its judicial

review provisions, as witnessed in the campaign against section 215. Section 215 alVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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lows anti-terror investigators access to business records in third party hands. The

section may also be called the librarian’s hysteria provision. The American Library

Association has declared section 215 a ‘‘present danger to the constitutional rights

and privacy of library users,’’ though the section says not a word about libraries.

Such hyperbole is standard, and completely unwarranted.

The section works as follows: Under Section 215, the FBI may ask the Foreign

Intelligence Surveillance Court for permission to seek business records—the enrollment application of a Saudi national in an American flight school, say—while investigating terrorism. The section broadens the categories of institutions whose records

the government may seek, on the post-9/11 recognition that lawmakers cannot anticipate what sorts of organizations terrorists may exploit. In the past, to trace the

steps of a Soviet spy, it may have been enough to get hotel bills or storage-locker

contracts (two of the four categories of records covered in the previous section of the

Foreign Intelligence Surveillance Act that Section 215 amended); today, however,

gumshoes may find they need receipts from scuba-diving schools or farm-supply

stores to piece together a plot to blow up the Golden Gate Bridge.

Section 215 removed the previous requirement in FISA that the records concern

an ‘‘agent of a foreign power,’’ since the scope of an anti-terror investigation is hard

to predict in advance. An unwitting bystander may have purchased fertilizer for a

terrorist posing as an aspiring farmer; finding out whether and how much fertilizer

was purchased may be an essential link in the investigative chain.

These commonsensical reforms of existing investigative power have called forth a

crescendo of hysteria. The ACLU warns that with section 215, ‘‘the FBI could spy

on a person because they don’t like the books she reads, or because they don’t like

the websites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy.’’ Librarians, certain that the section is all

about them, are scaring library users with signs warning that the government may

spy on their reading habits.

The force of these charges rests on the strategy of hiding the judge. Critics of section 215 conceal the fact that any request for items under the section requires judicial approval. An FBI agent cannot simply walk into a flight school or a library and

demand records. The bureau must first convince the Foreign Intelligence Surveillance Court that the documents are relevant to protecting against international terrorism. The chance that the FISA court will approve a 215 order because the FBI

‘‘doesn’t like the books [a person] reads . . . or because she wrote a letter to the

editor that criticized government policy’’ is zero. If the bureau can show, on the

other hand, that someone using a library’s computers was seen with other terror

suspects in Lahore, Pakistan, and has traveled regularly to Afghanistan under a

false passport, then the court may well grant an order to get the library’s Internet

logs. As Andrew McCarthy has pointed out, literature evidence was a staple of terrorism prosecutions throughout the 1990’s. Terrorists read bomb manuals, and often

leave fingerprints on pages spelling out explosive recipes that match the forensics

of particular bombings (like the 1993 attack on the World Trade Center).

Before the FBI can even approach the FISA court, agents must have gone through

multiple levels of bureaucratic review just to open an anti-terror investigation. And

to get to the court itself, intelligence agents must first persuade the Justice Department’s Office of Intelligence and Policy Review that a section 215 order is warranted, a process of persuasion that traditionally has taken months of vetting and

voluminous documentation.

STRATEGY #2: INVENT NEW RIGHTS

Besides concealing judicial review requirements, anti-Patriot Act demagogues also

invent new rights. A running theme of the campaign against section 215 is that it

violates the Fourth Amendment right to privacy. But there is no Fourth Amendment privacy right in records or other items disclosed to third parties. A credit-card

user, for example, reveals his purchases to the seller and to the credit-card company. He therefore has no privacy expectations in the record of those purchases that

the Fourth Amendment would protect. As a result, the government, whether in a

criminal case or a terror investigation, may seek his credit-card receipts without a

warrant or ‘‘probable cause’’ to believe that a crime has been or is about to be committed.

Despite librarians’ fervent belief to the contrary, this analysis applies equally to

library patrons’ book borrowing or Internet use. The government may obtain those

records without violating anyone’s Fourth Amendment rights, because the patron

has already revealed his borrowing and web browsing to library staff, other readers

(in the days of handwritten book checkout cards), and Internet service providers. It

59

is worth noting, however, that after all the furor raised about library users’ privacy

rights, section 215 has not once been used to obtain library or book store records.

It is the lack of a Fourth Amendment privacy interest in third party records that

has allowed prosecutors for decades to seek business and library records without

any judicial review whatsoever. Section 215, by requiring judicial review, is far more

protective of privacy than longstanding subpoena power in ordinary criminal investigations. Patriot critics have provided no evidence that the subpoena power has

been abused to spy on Americans’ reading habits; there is no reason to believe that

section 215 will be any more susceptible to abuse.

Recipients of a section 215 production order may challenge the order in court, as

Attorney General Alberto Gonzales recently testified, but they may not disclose the

order in public. This is perfectly appropriate. Pre-emptive terror investigations cannot be conducted in the news media. The government would seek a terror suspect’s

airplane itineraries, for example, not in order to prosecute a hijacking after it happens, but to pre-empt a hijacking before the fact. The battleground is not the courtroom but the world beyond, where speed and secrecy can mean life or death.

STRATEGY #3: CONCEAL LEGAL PRECEDENT

Attacks on the other most controversial section of the Patriot Act, section 213, illustrate the key ruse of concealing the act’s legal precedents. Section 213 allows the

government to delay notice of a search, something criminal investigators have been

allowed to do for decades.

Say the FBI wants to plumb Mohammad Atta’s hard drive for evidence of a nascent terror attack. If a Federal agent shows up at his door and says: ‘‘Mr. Atta, we

have a search warrant for your hard drive, which we suspect contains information

about the structure and purpose of your cell,’’ Atta will tell his cronies back in Hamburg and Afghanistan: ‘‘They’re on to us; destroy your files—and the infidel who sold

us out.’’ The government’s ability to plot out that branch of Al Qaeda is finished.

To avoid torpedoing pre-emptive investigations, Section 213 lets the government

ask a judge for permission to delay notice of a search. The judge can grant the request only if he finds ‘‘reasonable cause’’ to believe that notice would result in death

or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or other serious jeopardy to an investigation. In the case of Mohammad Atta’s hard drive, the judge will likely allow a delay, since notice could seriously jeopardize the investigation, and would likely result in evidence tampering

or witness intimidation.

The government can delay notifying the subject only for a ‘‘reasonable’’ period of

time; eventually officials must tell Atta that they inspected his hard drive.

Section 213 carefully balances traditional expectations of notice and the imperatives of pre-emptive terror and crime investigations. That’s not how left- and rightwing libertarians have portrayed it, however. They present Section 213, which they

have dubbed ‘‘sneak-and-peek,’’ as one of the most outrageous new powers seized by

former Attorney General John Ashcroft. The ACLU’s fund-raising pitches warn:

‘‘Now, the government can secretly enter your home while you’re away . . .

rifle through your personal belongings . . . download your computer files . . .

and seize any items at will. . . . And, because of the Patriot Act, you may never

know what the government has done.’’

Notice the ACLU’s ‘‘Now.’’ Like every anti-213 crusader, the ACLU implies that

section 213 is a radical new power. This charge is a rank fabrication. For decades,

Federal courts have allowed investigators to delay notice of a search in drug cases,

organized crime, and child pornography, for the same reasons as in section 213. Indeed, the ability to delay notice of a search is an almost inevitable concomitant of

investigations that seek to stop a crime before it happens. But the lack of precise

uniformity in the court rulings on delayed notice slowed down complex national terror cases. Section 213 codified existing case law under a single national standard

to streamline detective work; it did not create new authority regarding searches.

Those critics who believe that the target of a search should always be notified prior

to the search, regardless of the risks, should have raised their complaints decades

ago—to the Supreme Court and the many other courts who have recognized the necessity of a delay option.

Critics of Section 213 raise the spectre of widespread surveillance abuse should

the government be allowed to delay notice. FBI agents will be rummaging around

the effects of law-abiding citizens on mere whim, even stealing from them, allege

the anti-Patriot propagandists. But the government has had the delayed notice

power for decades, and the anti-Patriot demagogues have not brought forward a single case of abuse under delayed notice case law. Their argument against Section 213

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remains purely speculative: It could be abused. But there’s no need to speculate; the

historical record refutes the claim.

Moreover, such wild charges against Section 213 ‘‘hide the judge.’’ It is a Federal

judge who decides whether a delay is reasonable, not law enforcement officials. And

before a government agent can even seek to delay notice of a search, he must already have proven to a judge that he has probable cause to conduct the search in

the first place. This is hardly a recipe for lawless executive behavior—unless the

anti-Patriot forces are also alleging that the Federal judiciary is determined to violate citizens rights. If that’s what they mean, they should come out and say it.

In fact, the recent history of government intelligence-gathering belies the notion

that any government surveillance power sets us on a slippery slope to tyranny.

There is a slippery-slope problem in terror investigations—but it runs the other

way. Since the 1970’s, libertarians of all political stripes have piled restriction after

restriction on intelligence-gathering, even preventing two anti-terror FBI agents in

the same office from collaborating on a case if one was an ‘‘intelligence’’ investigator

and the other a ‘‘criminal’’ investigator. By the late 1990’s, the bureau worried more

about avoiding a pseudo-civil liberties scandal than about preventing a terror attack. No one demanding the ever-more Byzantine protections against hypothetical

abuse asked whether they were exacting a cost in public safety. We know now that

they were.

The libertarian certainty about looming government abuse is a healthy instinct;

it animates the Constitution. But critics of the Patriot Act and other anti-terror authorities ignore the sea change in law enforcement culture over the last several decades. For privacy fanatics, it’s always 1968, when J. Edgar Hoover’s FBI was voraciously surveilling political activists with no check on its power. That FBI is dead

and gone. In its place arose a risk-averse and overwhelmingly law-abiding Bureau,

that has internalized the norms of restraint and respect for privacy.

This respect for the law now characterizes intelligence agencies across the board.

Lieutenant General Michael V. Hayden, the nominee for Principal Deputy Director

of National Intelligence, told this committee last week that the challenge for supervisors in the National Security Agency was persuading analysts to use all of their

legal powers, not to pull analysts back from an abuse of those powers.

It is because of this sea-change in law enforcement culture that Patriot Act critics

cannot point to a single abuse of the act over the last 4 years, and why they are

always left to argue in the hypothetical.

STRATEGY #4: REJECT SECRECY

A subtext of many Patriot Act critiques is a refusal to grant any legitimacy to government secrecy. Recipients of document production orders in terror investigations—

whether Section 215 orders or national security letters under the 1986 Electronic

Communications Privacy Act—should be able to publicize the government’s request,

say the critics; targets of searches should be notified at the time of the search. Time

and again, law enforcement critics disparage the Foreign Intelligence Surveillance

Court, because its proceedings are closed to the public. The ACLU, for example, opposes the roving wiretap authority for terrorism investigations in the Patriot Act

(Section 206), even though criminal investigators have long had the roving wiretap

option, because Section 206 wiretaps ‘‘are authorized secretly without a showing of

probable cause of crime.’’ (Section 206 requests must demonstrate probable cause

that the wiretap target is an agent of a foreign power and that he will be using

the tapped communications devices.)

This transparent approach may satisfy those on the left and right who believe

that the American people have no greater enemy than their own government, but

it fails to answer the major question: how would it possibly be effective in protecting

the country? The Patriot Act critics fail to grasp the distinction between the prosecution of an already committed crime, for which probable cause and publicity requirements were crafted, and the effort to pre-empt a catastrophic attack on American soil before it happens. For pre-emptive investigations, secrecy is of the essence.

Opponents of the Patriot Act have never explained how they think the government

can track down the web of Islamist activity in public.

These four strategies, in various combinations—hide the judge, invent new rights,

conceal legal precedent, and reject secrecy—lie behind nearly all of the Patriot Act

attacks. The crusade against Section 214, for example, which allows the government

to record the numbers dialed from a phone if relevant to a terrorism investigation

(the so-called pen register power), uses all four strategies. (A related section, Section

216, extends the longstanding rules on pen registers, to the 21st century technologies of e-mail. Section 216 allows the government to capture only an e-mail’s

routing and addressing information, not its content.)

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Section 214 merely allows the agents investigating a terrorism case the same

power that criminal investigators have. But the Electronic Frontier Foundation calls

the section ‘‘a serious threat to privacy.’’ This charge rests on inventing new rights.

In fact, pen registers threaten no privacy rigths, as the Supreme Court has held,

because there is no legitimate expectation of privacy in the numbers dialed from a

phone, which are recorded already by telephone companies. Even though judicial authorization for a pen register is not constitutionally required, section 214 nevertheless mandates that the government obtain an order from the FISA court for their

use. EFF dismisses the value of the court, however, because it ‘‘operates in total secrecy.’’

In conclusion, the Patriot Act is a balanced updating of surveillance authority in

light of the new reality of catastrophic terrorism. It corrects anachronisms in law

enforcement powers, whereby health care fraud investigators, for example, enjoyed

greater ability to gather evidence than Al Qaeda intelligence squads. It created no

novel powers, but built on existing authorities within the context of constitutional

checks and balances. It protects civil liberties while making sure that intelligence

analysts can get the information they need to protect the country. The law should

be re-enacted.

STATEMENT OF HEATHER MACDONALD, SENIOR FELLOW,

MANHATTAN INSTITUTE FOR POLICY RESEARCH

Ms. MACDONALD. Mr. Chairman, thank you very much. I’m honored to be here today and I hope both you and the Vice Chairman

will eventually share your wonderful opening statements with us.

I would look forward to reading them.

The PATRIOT Act has been subject to the most successful misinformation campaign in recent memory. From the day of its passage

it was portrayed as an unprincipled power grab by an administration intent on trampling civil rights. As I’ve debated the Act across

the country, I’ve been amazed by the universal ignorance about

what the Act actually contains. I applaud the Committee for taking

the time to finally get the facts out.

The PATRIOT Act recognizes the fundamental truth about terrorism. Our only weapon against it is intelligence. Accordingly,

Congress, in passing the Act, amended existing surveillance powers

to ready them for the terrorist challenge. Its most important contribution was tearing down the wall that prevented informationsharing among all terror investigators. Today, thanks to Congress,

all members of the anti-terror community can collaborate to try to

prevent the next strike before it happens.

The PATRIOT Act made other necessary changes to surveillance

law as well. It extended to terrorism investigators powers long enjoyed by criminal investigators, and it brought our laws into the

21st century of cell phones and e-mail. Each of those changes was

accompanied by the most powerful restraint we have in our Constitution, judicial review. The Act carefully preserves traditional

checks and balances that safeguard civil liberties.

For that reason, after 4 years of constant review by the Justice

Department’s Inspector General and a host of hostile advocacy

groups, not a single abuse of power has been found or even alleged.

Now I’ve observed four rhetorical strategies used to discredit the

Act. I call them hide the judge, invent new rights, conceal legal

precedents and oppose secrecy. I want to review these strategies

in the context of the two most controversial provisions of the PATRIOT Act—section 215, the business records provision, and 213,

delayed notice.

215 allows the government to get records in third party hands

for terrorist investigations. It’s been attacked as a massive violaVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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tion of free speech. It’s the librarians’ hysteria provision. The

librians are all convinced that the section is all about them, even

though the Act doesn’t mention libraries. What you never hear in

the attacks on 215 is that the government cannot get any records

without prior approval of the FISA Court. These are Article III

judges who have pledged to protect our civil rights. They are not

going to approve a search of somebody’s records simply because the

FBI doesn’t like your reading habits, as the ACLU has alleged.

It’s also been blasted as a violation of Fourth Amendment privacy rights. Now we’re getting into my second strategy, which is

to invent new rights. Courts have long held there is no Fourth

Amendment privacy rights in records held by third parties. For

that reason, prosecutors or grand juries—your fellow citizens—can

get those same records without any judicial review whatsoever.

Section 215 is actually more protective of rights than the criminal

powers that pre-existed it.

Now the furor over section 213, the delayed notice provision, illustrates my third rhetorical strategy, which is concealing legal

precedent. 213 allows the government to delay notice of a search—

delay, not permanently put it off—if notice would have an adverse

result such as witness intimidation, evidence tampering or jeopardizing an investigation.

This has been portrayed by the ACLU and other groups as a radical new power that’s going to unleash government tyranny. The

gall of this claim, frankly, astounds me, because 213 merely codifies two decades of existing judicial precedent. If delayed notice was

the threat that its critics have made it out to be, we would have

already heard about abuses that such a power leads to.

As with every other provision of the Act, the critics have not

been able to bring forth a single example of abuse over the last 20

years of the delayed notice authority.

213 attacks also take advantage of the hide the judge strategy.

You’ll never hear that in order to even delay notice of a search first

you need to go through your traditional probable cause hearing to

justify a warrant and you need to persuade the judge that there

is a necessity to delay notice.

Ultimately what drives much of the criticism is a deep suspicion

of government secrecy, the fourth strategy—deny the need for secrecy. I constantly hear the FISA Court disparaged as a mere rubber stamp because its proceedings are closed to the public. Opponents of 213 and other provisions apparently believe that if the

government is investigating Mohammad Atta, for example, he

should be notified in advance that the government wants to search

his hard drive. This line of attack shows a complete obliviousness

to the fact that what we’re doing here is not a criminal investigation after the fact but we’re trying to pre-empt a terrorist attack

before it happens. Speed and secrecy are of the essence in preventing an attack.

In conclusion, the PATRIOT Act is balanced. It’s a reasonable response to the new threat of catastrophic terrorism. It has not led

to a single abuse of civil rights. And it should be renewed.

Thank you very much for your attention.

Chairman ROBERTS. Ms. MacDonald, thank you very much for

your statement.

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Members will have 5 minutes in the first round and we will go

to a second round if necessary.

I have a question in reference to section 218 and ‘‘significant purpose.’’ I think everybody seems to agree with the Foreign Intelligence Surveillance Court review that the ‘‘significant purpose’’

certification standard was not really needed to tear down the information-sharing walls—and that’s my word—created by the Department of Justice and adopted by the Foreign Intelligence Surveillance Court.

Nonetheless, the provision was the catalyst for policy changes

that have greatly improved the FBI’s ability to consult with prosecutors in national security investigations and share information

both within the FBI and among other members of the intelligence

community.

Now, Mr. Nojeim, as I read your recommendations, it appears

that you want to—this are my words, probably not your description—rebuild the walls between the FBI and national security investigators and prosecutors and restore the Foreign Intelligence

Surveillance Court, what I think is a misinterpretation of the law.

Why do you think it’s a bad idea for the FBI agents conducting national security investigations to be able to consult with prosecutors

to the same extent as the FBI agents who are conducting the domestic criminal investigation? How is it an end run around the

Fourth Amendment to use FISA to pursue a terrorist group like

the al-Qa’ida or spies like Robert Hansen?

Mr. NOJEIM. I never said in my testimony that they shouldn’t be

allowed to consult. What I did say was that the risk to the Fourth

Amendment is this: FBI agents believe that such-and-such a person has committed a terrible crime. They want to search the person’s home and they want to wiretap the person to get evidence of

that crime, and to put him behind bars.

Normally they would have to go in front of a judge and show

probable cause of crime. Under the ‘‘significant purpose’’ test, if

they also have an intelligence rationale they no longer have to do

that. Eventhough they are looking for evidence of a crime, they

never have to show probable cause of crime because they can go

around that requirement, search the home or eavesdrop on the

telephone conversation if they meet the intelligence rationale under

the PATRIOT Act and that intelligence gathering is a significant

purpose of the surveillance.

There is a problem. We have to admit that there is a problem

about going around the Fourth Amendment. The issue is how do

we deal with that problem. We suggest three things. The first I

hope is easy. It’s increased public reporting. We’re not asking for

the FBI to disclose sources and methods of intelligence gathering.

Even the raw numbers of searches that involve the use of this

power is not disclosed. Even whether the person who is being

surveilled is a U.S. person, a citizen, or a lawful permanent resident, that’s not disclosed either. So disclosure is one thing that

needs to happen.

Another thing that needs to happen——

Chairman ROBERTS. If you can do the two real quickly, I’ve got

a yellow light and I want to turn to Ms. MacDonald.

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Mr. NOJEIM. Another thing that needs to happen is making it so

that the person who is accused of a crime based on that information that’s gathered in that intelligence surveillance can get access

to the application that was used to gather that information. There’s

a ready process under the Classified Information Procedures Act

that could be grafted onto the statute to make it work better.

Ms. MACDONALD. Can I just respond?

Chairman ROBERTS. Ms. MacDonald.

Ms. MACDONALD. Mary Jo White, who before 9/11 was the most

seasoned al-Qa’ida prosecutor, told me that there was no greater

barrier to fighting terrorism than the wall. She said it was something that they beat their heads against all the time. The idea that

the process of going before the FISA Court is some flippant, easy

way to have a run around the Fourth Amendment is absurd.

You need massive clearance within the FBI. Then you have to

persuade the Office of Intelligence and Policy Review to bring your

case before the FISA Court. I believe it was the Senate Select Committee itself that, several years before 9/11, was extremely concerned with the hurdles that were being placed by OIPR on FISA

requests from the field.

I think we also forget that there has been a massive sea change

in law enforcement culture. For the civil liberties advocates, it’s always 1968. We always have J. Edgar Hoover trampling civil rights.

In fact, let’s be honest. Law enforcement, the FBI, has internalized

norms of restraint. As General Hayden told you last week, his challenge within the NSA was to try and persuade his agents to use

their powers, not to pull them back from an abuse of power.

The FISA process is basically, as the first head of OIPR, Mr.

Bass, Kenneth Bass, said, it’s basically a probable cause warrant.

Chairman ROBERTS. Senator Rockefeller. Thank you, Ms. MacDonald.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman.

Perhaps I could ask this question of each of you and then have

you rebut each other, all in 5 minutes. The liveliest part of this

controversy is what we’ve just been talking about, and that’s 215

on access to records. It’s about the librarians, named, unnamed.

Booksellers have been concerned about it. It’s not limited to libraries and books.

Now we have read and we have heard your separate arguments

about that section. It would be helpful to each of us to hear those

arguments side by side. Would you each take a minute to state

your main point about section 215 and then a half minute to rebut

what others say about that—a side-by-side approach.

Ms. MACDONALD. 215 gives the government access to business

records that a criminal prosecutor already had access to for the

mere after-the-fact investigation of a crime. This allows terrorism

investigators to have access to those same records. It requires FISA

Court approval. The fact that it removed the four narrow categories

merely acknowledges the fact that we cannot predict the next terror attack.

Who would have known that it would have been nice to have had

flight school records before 9/11? Under 215 the government can

get flight school records and it’s not confined to storage lockers.

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Mr. NOJEIM. Prior to the PATRIOT Act and after the PATRIOT

Act the government had the power to, when it was investigating a

crime, get a criminal subpoena. It could do that for terrorism

crimes; it could do that for other crimes. It’s inaccurate to imply

that it couldn’t do it for terrorism crimes.

What we would like to see on section 215 is an increase in the

standard of review. In particular, the notion that when the records

are ‘‘sought for’’ an investigation is a very, very low standard. In

addition, we suggest that these records requests be limited to

records that pertain to an agent of a foreign power. We say that

we want to restore the ‘‘agent of a foreign power’’ standard, and

again this has nothing to do with information-sharing, which we do

not oppose, when we say restore the ‘‘agent of a foreign power’’

standard, we say that because it protects records about people who

have nothing to do with terrorism, and they are mostly Americans.

Vice Chairman ROCKEFELLER. Mr. Dempsey.

Mr. DEMPSEY. Senators, as I said in my opening remarks, there’s

not a category of records that I can think of that the FBI shouldn’t

have access to in intelligence investigations. The expansion of 215

from some limited categories of records to any records, including library records, was appropriate. Libraries aren’t really the issue, as

we all know, and if there is something at a library that’s valid and

useful, the government should have access to that as well.

The question is, shouldn’t there be some factual basis for the government’s request. I think the one-to-one comparison between the

criminal side, where there are lots and lots of checks and balances

all the way to right to counsel and the adversarial process, you get

a subpoena, you can scream bloody murder about it, but these are

secret. We have to have something compensating for that.

The judge right now is a rubber stamp. If the government says

we want them and signs a piece of paper, the judge has to approve

it and does approve it, and there’s——

Vice Chairman ROCKEFELLER. Do you disagree with that, Ms.

MacDonald?

Ms. MACDONALD. I disagree. The language in 215 is identical to

the pre-PATRIOT language on the standard of review. Under that

standard pre-PATRIOT, there was still the months-long vetting on

OIPR. In fact, there is basically, in practice, a factual predicate.

That certification language is no different. Either there was the

same problem pre-PATRIOT and we didn’t know about it, or it’s

not a problem at all.

As for restoring the ‘‘agent of a foreign power’’ standard, I think

that would be a great mistake, for the same reason that I mentioned why we’re expanding the documents. We can’t predict in advance what the contours of a terror investigation are going to be.

Somebody may have unwittingly bought fertilizer for a suspected

terrorist. Under the agent of a foreign power standard, you’re not

going to be able to get those records of a farm supply store because

it’s not his records that you’re looking for. It’s a third party that’s

bought them.

Finally, again there’s no Fourth Amendment interest in records

in third party hands. A prosecutor can already get them. They are

no more available under the PATRIOT Act than they were before

the PATRIOT Act.

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Vice Chairman ROCKEFELLER. My time is up, Mr. Nojeim, but I

will come back to you on the second round because I excluded you

and I didn’t mean to.

Mr. DEMPSEY. Senator, could I have just one quick clarification?

Vice Chairman ROCKEFELLER. No, because we’re being very strict

about time. We will have a second round.

Mr. DEMPSEY. Of course.

Chairman ROBERTS. See, I was going to grant that, but this man

is just an absolute tyrant with time, as you can see.

[Laughter.]

Chairman ROBERTS. Actually, he’s a heavy-handed despot, but

I’m not going to get into that any further.

Senator Lott.

Senator LOTT. Thank you, Mr. Chairman. Thank you for your restraint that you’ve been exercising throughout this hearing. I thank

the panel for being here.

I must say to you, Ms. MacDonald, how impressed I am with

your credentials and your resume and your testimony here today.

I’m glad to hear somebody take the position that I agree with very

strongly.

The PATRIOT Act is coming up for reauthorization. We need to

listen to complaints. We need to review how it has worked. I found

it completely telling when you note, for instance, after constant

monitoring by the Justice Department Inspector General and all

kind of hostile advocacy groups horrified at what might happen,

not a single abuse has occurred or been seriously alleged.

That is what you’re saying.

Ms. MACDONALD. That is what I’m saying. We’ve heard none

today either. It’s not just under the PATRIOT Act. Again, the most

interesting issue for me is the delayed notice provision. We’ve had

20 years of delayed notice power that is now causing the public to

fear that the FBI’s going to be rummaging around their underwear

drawer and not a single abuse has occurred for the last 20 years.

Again, I think what this speaks to is the sea change in law enforcement culture and the fact that the checks and balances that

exist before the PATRIOT Act and certainly exist after the PATRIOT Act are working.

Senator LOTT. Let me ask you to do this, then. As we look at this

Act, let’s not just look at some of the complaints about it. Let’s look

at are there some ways that maybe we could strengthen it even

further, that would be helpful in trying to provide additional surveillance or investigative authorities that might help us to combat

terrorism.

Have you thought about that?

Ms. MACDONALD. I’m not going to take that on, Mr. Lott. It’s

hard enough to defend what exists. I know that the FBI has been

asking for administrative subpoena power. I’m basically agnostic on

that.

Senator LOTT. Well, with your presentation and with your credentials, I hope you’ll meditate about that and think about it and

see how maybe we can make it even better by making it stronger

in some areas where maybe there are some weaknesses.

Ms. MACDONALD. I would say probably what would be more important is the political branches sending a message to law enforceVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ment that they will be supported, if they are acting in good faith,

that they don’t need to worry about the hypothetical trumping up

of civil liberties concerns, that the government, people like yourself,

will support them in the full exercise of their power.

Senator LOTT. You know, you cannot be agnostic about privacy

issues and protecting individual citizens’ privacy rights. My question is, I guess, are there sufficient safeguards in this Act as it now

exists?

Ms. MACDONALD. We have no stronger safeguard in our Constitutional system than judicial review. The FISA Court operates in

secret, that’s true, as it must. There is simply no way that you can

conduct a pre-emptive terror investigation in public. You cannot

have C-SPAN and CNN covering the proceedings before the FISA

court and think that we’re going to be able to beat this enemy.

There is judicial review throughout the PATRIOT Act, whether

it’s before the FISA Court or before a regular Article III court.

Again the results speak for themselves.

Mr. DEMPSEY. Senator, may I respond?

Senator LOTT. Mr. Dempsey, I was going to ask if you have any

comment on either of my two questions.

Mr. DEMPSEY. Yes, sir. First of all, in terms of the abuses, when

a provision says that the government gets anything they want just

for asking for it, I don’t see how that can be abused. I honestly

don’t. A standardless law, it’s hard to say there’s an abuse, and

that is some of what we’re talking about here.

Now I think there have been what I would call abuses. I think

using the PATRIOT Act to break into a judge’s chambers and conduct a secret search in a non-terrorism case involving no threat of

life and no intimidation or likelihood of intimidating witnesses, I

don’t think that that’s what members of this body thought they

were voting for when they approved the PATRIOT Act. I think

that’s an abuse.

It’s within the four corners of the law, but I think that’s an abuse

of the concept of this emergency legislation that was passed to address a compelling national security threat. I think that other of

these provisions are so broadly written that they cannot be abused.

I think they should be narrowed.

Ms. MacDonald was referring to the judges. This law says that

if an FBI agent comes in with a signed piece of paper saying—actually, it’s interesting. It doesn’t even say it has to be in writing. It

doesn’t even say that the officer has to name himself. If you compare this to some of the other laws on our books, some of the subpoena laws or the pen register statute for criminal cases, it has to

be in writing. This doesn’t even say it has to be in writing. It

doesn’t say he has to even name the case.

All he has to do is come in and say, ‘‘I want these records for

an intelligence investigation,’’ and the law says upon application,

oral application probably, the judge shall enter an ex parte order

as requested or as modified, period. Why even have the judge in

that case? That’s a rubber stamp.

Now one thing that’s interesting—and Ms. MacDonald referred

to this earlier—if you actually look at the FBI’s guidance on how

to interpret this, it’s actually better than the text of the law. The

FBI guidance on this does say that they always have, internally at

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least, a factual basis and they always have, it seems, some particularized suspicion.

Chairman ROBERTS. Mr. Dempsey, I’m going to have to interrupt

at this point, and I do appreciate your point of view.

Could you clarify for the Committee which judge we’re talking

about in terms of the chambers?

Mr. DEMPSEY. I honestly don’t know. It was in a letter that the

FBI sent to Senator Stevens describing the use of the sneak and

peek legislation.

Chairman ROBERTS. All right. We can find that.

Senator Bond.

Senator BOND. Thank you very much, Mr. Chairman. I thank the

panel. I think we’ve had a very good discussion of what has been

widely abused and misused and misrepresented, as we now hear

people with differing points of view agreeing that there is justification for this. I happen to be a strong supporter of the PATRIOT

Act. For better or for worse, I, with my colleague from Maine, Senator Snowe, authored the Visa Integrity and Security Act provisions which have caused a lot of heartburn. We understand that

any law like this should be reviewed and we very much appreciate

the thoughtful comments.

I go back to Mr. Dempsey and ask him briefly, you say on section

213 it was used to expand government powers with respect to delayed notice searches and that the section lacks suitable checks and

balances. It was my understanding the PATRIOT Act merely codified pre-existing judicial precedent that allowed investigators to

execute delayed notice criminal search warrants under certain limited circumstances.

To what extent was 213 an expansion of authority? Why aren’t

the current limits unreasonable? If you have to have approval of

a judge, why isn’t it appropriate to delay notice in certain circumstances?

Mr. DEMPSEY. Senator, a good question. Let me give you an example of how the provision failed in its stated goal of codifying existing practice.

Senator BOND. All right.

Mr. DEMPSEY. Two circuit courts had specifically ruled on the

question of delayed notice. Each of them had come down in favor

of a 7-day delay rule as the basic timeframe for which delay could

be permitted, renewable for successive 7-day periods upon a good

showing.

The PATRIOT Act, rather than codifying that case law, says the

delay can be for any reasonable period. Well, what are the judges

of the Ninth Circuit supposed to do now? They had come up with

a 7-day rule. The Congress has not taken up the 7-day rule and

adopted a reasonable period rule.

If you look at the Justice Department guidance, they say that up

to 90 days would be a reasonable delay. That’s an example of

where we could have given specificity and clear standards and in

fact failed to do so.

Senator BOND. Maybe Congress thought that the judges should

determine in the particular circumstances what is reasonable and

that if you are looking at a multi-faceted investigation, as some of

the ones that we have heard about here, there’s no way you’re

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going to get it finished in 7 days. I would think that the judge

would have to be presented. They’ve said seven. Time’s up. I want

Ms. MacDonald to comment on that.

Mr. DEMPSEY. If I could, Senator, just 1 second.

Senator BOND. I want Ms. MacDonald to comment when Mr.

Dempsey finishes his thought before we yellow light goes off.

Chairman ROBERTS. Mr. Dempsey, please proceed.

Mr. DEMPSEY. If we were going to leave it to the judges, we

should have left it to the judges. We didn’t need 213 at all. I think

that the reason why the Justice Department pushed for 213 is because they had come to the conclusion that that legal authority

that everybody cites was on shaky ground, because if you look at

those cases, there are some older cases that said that the Fourth

Amendment has nothing to do with notice or says nothing about

notice. Then the Supreme Court later came along and said that notice is part of the Fourth Amendment determination.

Ms. MACDONALD. Subsequent to that case itself, there’s been a

Seventh Circuit case that said that you can delay notice for reasonable periods of time. To my mind, reading the case law, there is

no question that delayed notice is fully constitutional.

I think it was wise of Congress to give judges and investigators

the leeway to determine what a reasonable period of delay is. One

of the problems that we had pre-PATRIOT Act was short time limits on warrants that were creating an enormous amount of paperwork.

You know, again, we’re fighting terrorism here. We’re not trying

to prosecute——

Mr. DEMPSEY. Then let’s limit this one to terrorism.

Ms. MACDONALD. OK. I want to respond as well to Mr.

Dempsey’s point about 215 when he asks, ‘‘Why have a judge?’’

Again, let’s remember that these documents are available without

a judge. A prosecutor can get them on his own request. Why 215

is more problematic is a mystery to me. The standard by which the

FISA Court decides a 215 request under the PATRIOT Act is the

same standard as under FISA. It required a factual showing before

the PATRIOT Act and it still requires it now.

Chairman ROBERTS. Senator Wyden.

Senator WYDEN. Thank you, and thank all of you. We’ve got a

good cross-section of views at this table.

This Act is going to be renewed. There’s just no question about

that. I would be interested in just going right down the row—and

we can start with you, Mr. Dempsey—and have each of you say

what you think the most important areas are with respect to what

the Congress should require in the way of reporting. In other

words, take two items each, the two most important areas to you

in terms of what is most important for reporting so as to strike this

balance between protecting the public good and individual liberties.

Mr. Dempsey.

Mr. DEMPSEY. Recognizing that reporting is one aspect of the

sort of checks and balances we’re talking about.

Senator WYDEN. Right. I think one of the most important ones.

Mr. DEMPSEY. I think reporting should apply to a couple of the

sections that we haven’t talked about yet, which are the emergency

disclosure of e-mail section, which is section 212, again a relatively

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uncontroversial provision in some ways. I’ve been hearing that

there have been a lot of requests. Again, these are non-terrorism

cases. These are by and large criminal matters, and there’s absolutely no reporting now for those extrajudicial disclosures where

the government goes to the service provider, says there’s an emergency, the service provider, without a court order, turns over the

e-mail. We really don’t have any kind of a handle on how often

that’s happening.

In terms of FISA reporting, both on the electronic surveillance,

physical surveillance and on 215, I think the issue there is to find

a way to bring some of that more detailed information into the public light. I know this Committee receives the classified information.

I would certainly urge you to look carefully at the applications, particularly the U.S. person ones. You may do that.

If you do do that, it would be useful to have a report about that.

In the early years of FISA there was a 5-year report on its application which was an unclassified, public report. I think that would

be helpful. I think that could be done without compromising any

classified information and could talk about what this Committee is

doing behind the scenes as an oversight matter.

I think there could be some more public reporting on FISA.

Mr. NOJEIM. To summarize, sections 215 and 505, the FISA

records provisions, there ought to be reports under those provisions. In fact, AG Gonzales revealed for the first time just a couple

weeks ago that section 215 had been used 35 times. A year before

that Attorney General Ashcroft had said it had never been used.

It seems to me that if they can disclose selectively the number of

times it’s been used that an annual reporting requirement probably

wouldn’t damage national security.

The section 215 reporting notion should be extended to section

505, National Security Letters, as well.

In addition, sections 203(b) and 203(d) about information-sharing, they could be beefed up with additional notice to the court and

to Congress about how information is being shared, because right

now there aren’t sufficient requirements about that.

Then I’d like to follow up for just a second on what Senator Bond

was saying earlier about sneak and peek warrants.

Senator WYDEN. My time is short and I want to get Ms. MacDonald in. If you could give us that a little bit later, that would

be great.

Ms. MACDONALD. Thank you, Senator Wyden. I’ll yield my time

back to Mr. Nojeim because I don’t feel qualified to answer that

question. It’s not something that I’d looked at on a section-by-section basis. My impression is, given the past reporting to the Judiciary Committee in the House, that the reporting requirements are

very extensive.

I’m not aware, really, of any gaps in reporting requirements that

exist.

Senator WYDEN. I may have time for one additional question. I

was going to ask about National Security Letters, because I have

been troubled by the fact that there really isn’t any court review

on it. What I’m most interested in to start with is, do any of you

know how frequently they’ve been used? Because if this is not a

frequently used tool, that makes it a matter of lesser importance.

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Do any of you three know about how frequently they’ve been

used?

Mr. DEMPSEY. Not currently. The staff knows; it’s reported, I

think, to the Committee.

Mr. NOJEIM. It ought to be something that’s reported to the public, the frequency of the use of those.

Senator WYDEN. Are they widely used? Ms. MacDonald, do you

know?

Mr. DEMPSEY. Oh, they are very widely used. It’s a classic investigative technique.

Senator WYDEN. My time is up. I would only ask, if that’s the

case—and I was not aware of that, Mr. Chairman—I would like to

work with both of you on that.

Chairman ROBERTS. Senator Wyden, we do have that information that you requested. We will share that with you.

Senator WYDEN. My understanding, then, is, Mr. Chairman, that

there are very few rules with respect to National Security Letters

and if it’s a widely used tool I would like to work with both of you

and see if we can flesh out a bipartisan change there that would

strike the right balance between security and individual rights, because as far as I can tell there’s no standard for it.

I thank you.

Ms. MACDONALD. Can I just make one response? The National

Security Letter law was 1986 law, and it was Patrick Leahy that

believed that they should be secret. Again, this is something we’ve

had a very long time to look at whether it’s a power that’s been

abused. Again, I’m not aware of abuses.

Senator WYDEN. Well, there are a variety of statutes that mandate National Security Letters. Other letters are permissive, Ms.

MacDonald. That’s why I think we’re going to take a look at it.

Thank you, Mr. Chairman.

Chairman ROBERTS. Let the record show that we had a witness

before the Committee who actually said that she didn’t know about

a question. I think that’s remarkable.

I want to let my colleagues and everybody be aware of the fact—

I know Mr. Dempsey mentioned records and what the Committee

might do—this is not our first review of the PATRIOT Act or the

Foreign Intelligence Surveillance Act. We regularly hold hearings

and conduct briefings and receive information in regard to the activities of the intelligence community.

We conducted a closed hearing on the PATRIOT Act during the

last Congress. We receive detailed reports from the Department of

Justice every 6 months in regard to FISA, annual reports on the

use of other surveillance tools. We’re also in the final stages of completing our second audit of the procedures and practices and use

of FISA. This comprehensive and classified analysis I think will

represent one of the most thorough reviews of the Executive branch

activities under FISA since the Act was enacted.

That was in my opening statement and I wanted to make sure

that everybody here understood that we are aggressively active.

Senator Feinstein I think is next.

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

As a member of both this Committee and the Judiciary Committee, in our hearings on the PATRIOT Act I have really been

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hard-pressed to find any signs of bad use or overuse. I have

pressed the Attorney General to provide a specific report. He has

provided it. I’ve been though it. I have a hard time finding any instance of misuse of this Act.

I would like the two people—Mr. Dempsey and Mr. Nojeim—to

take their best shot and give me what the misuse has been or bad

use and how it should be repaired.

Mr. NOJEIM. We wrote a letter to you about this.

Senator FEINSTEIN. I got that letter, a 12-page letter, I think.

Mr. NOJEIM. Let me just run through some of the points that we

made. First, the PATRIOT Act was used to search the home of

Brandon Mayfield. He’s the Portland, Oregon, attorney who was a

suspect in a crime, and that was the Madrid train bombing. It

turned out that he was completely innocent and the PATRIOT Act,

the ‘‘significant purpose’’ test of the PATRIOT Act was used to get

the intelligence warrant to search his home. I could go into that

case in a little bit more detail.

Senator FEINSTEIN. Let me stop you there, because I moved the

amendment in Judiciary for the ‘‘significant purpose.’’ If you were

to change it, how would you change it? Because I agree with Ms.

MacDonald. I think in this world that we live in, the breaking

down of that wall from ‘‘primary purpose’’ to ‘‘significant purpose’’

was really important to do.

Mr. NOJEIM. As we wrote in the letter to you, we’re not asking

that you support repeal of the ‘‘significant purpose’’ test. We’re asking that you increase reporting. We’re asking that you——

Senator FEINSTEIN. You mean periodic reporting?

Mr. NOJEIM. Reporting, for example, of how many U.S. persons

are searched under FISA. Brandon Mayfield is a native-born American.

Senator FEINSTEIN. I understand that.

Mr. NOJEIM. That’s what we’re asking for.

Another thing that we’re asking is that you put the Brandon

Mayfields of the world—and there will be more of them—in a better position if the government doesn’t come forward with the evidence showing that it wrongly accused them. Brandon Mayfield

could have gone to trial accused of one of the worst crimes in history without getting access to the information that was used to

search his home.

What we’re suggesting is that the Classified Information Procedures Act provides a good model that the Committee could adopt

for giving a person like that, who is accused of a terrible crime, if

it actually goes to trial, access to that information.

Another thing that we mentioned, in our letter to you, as an

abuse was the use of an unconstitutional statute. The National Security Letter statute has been struck down by a Federal district

court. The statute was broadened substantially, rewritten by the

PATRIOT Act, and one can’t say that repeated use of an unconstitutional power is not a problem. It is a problem.

We suggested a number of changes to the National Security Letter statute that we think would satisfy that court. For example,

making it so that a person who gets one of those National Security

Letters can talk to a lawyer, making it so that the gag that preVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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vents them from saying they ever got a letter is time-limited, and

putting in a meaningful standard of review for that letter.

The other cases that we mentioned in our letter to you include

the exclusion of a Muslim scholar under section 411 of the PATRIOT Act that appears to be based on the person’s political opinion; in another one, the prosecution of a gentleman, Sammy L.

Hussein, for, among other things, posting material to the Internet

that he didn’t even write. He posted things to the Internet that

were links to what other people wrote. He was charged for providing material support for terrorism for doing that and for some

other things.

These are problems. We’re suggesting that this Committee can

deal with those.

Senator FEINSTEIN. Mr. Dempsey, quickly.

Mr. DEMPSEY. I think the cases cited by Mr. Nojeim are real

cases of abuse. I had cited in my dialog with Senator Lott others

that I thought were not what Congress had intended, although

they are within the four corners of the legislation—use of PATRIOT Act authority for nonviolent crimes having nothing to do

with terrorism.

I also think, looking at the Justice Department report on the PATRIOT Act sunsets, there’s no evidence of abuse; also, for many of

the provisions there’s no evidence of use, not that they aren’t used,

but there’s nothing one way or the other in this report saying good

or bad about how those cases have been used.

I’m not sure that the standards, particularly for intelligence authorities, should be documented abuses. I think we can now take

the time, look at the authority, ask does the authority meaningfully

advance the national security. I think in almost every case, if not

every case, there is an argument that it does. Then ask ourselves

what should be the circumstances surrounding that.

Clearly Congress thought it was retaining some limits. Witnesses

today have emphasized the role of the judiciary, for example. The

fact that the government needs information doesn’t mean that all

the rules are off. We now have the time to go back. We’ve made

what I think are significant proposals, relatively modest, but they

would help focus the FBI and other intelligence agencies.

Ms. MACDONALD. Can I quickly respond?

Senator FEINSTEIN. My time is up, but could Ms. MacDonald

comment?

Chairman ROBERTS. Well, I certainly would like to recognize Ms.

MacDonald for her quick-draw best shot.

Ms. MACDONALD. OK. Thank you.

I think we’ve had a case of bait and switch here. I’m really perplexed by the Brandon Mayfield example. What we were hearing,

the doom and gloom scenarios about getting rid of the ‘‘primary

purpose’’ test was that you would have a sneaky prosecutor who

wants to get some guy for drugs and he uses FISA because it’s a

lower standard of review.

Brandon Mayfield was being investigated for terrorism. I don’t

see how that is a misuse of the PATRIOT Act. The problem was

the fingerprinting was inaccurate. That was not a PATRIOT Act

abuse. The system worked. He was exonerated. He was not prosecuted. I’m very perplexed by the Mayfield example.

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If that’s all they’ve got, it’s not much. The National Security Letter statute that Mr. Nojeim says was stuck down as unconstitutional, that’s true, but they did not strike down the PATRIOT Act

provision. They struck down the 1986 Electronic Communications

Privacy Act and Senator Leahy’s idea that there should be a gag

order. Let’s not way that the PATRIOT Act has been struck down

as unconstitutional.

The exclusion of a Muslim scholar because of his political opinion, I’d need to know the facts about that. Obviously if somebody

is preaching jihad, in the worst case scenario, I do not think that

we want to admit. There’s no constitutional right of a foreigner to

be admitted to this country. He has no First Amendment rights.

Without knowing more about the case, that would be my initial reaction.

Chairman ROBERTS. Senator Corzine.

Senator CORZINE. Thank you, Mr. Chairman, and I appreciate

the hearing.

I’d like to actually continue on this. I come at this by citing a

quote in the 9/11 Commission.

‘‘The burden of proof for retaining a particular governmental power should be

on the Executive to explain that the power actually materially enhances security and that there’s adequate supervision of the Executive’s use of the power

to ensure protection of civil liberties.’’

It goes on.

I embrace that concept, and I think this discussion of abuses actually is one of those elements that maybe some of this needs to

be done privately where you delve into it. The idea of a judge’s

quarters being interdicted into without any kind of authorization——

Mr. DEMPSEY. There was a court order, just to be clear, Senator.

There was a court order, but it was a secret search.

Senator CORZINE [continuing]. Strikes me as somewhat overreaching. I’d like to hear the response to Ms. MacDonald’s comments about the Mayfield situation, which, if you were Mr.

Mayfield, an American citizen, you’d wonder why you were being

subjected outside of extraordinary causes, why you were being subject to an investigation without the kinds of checks and balances

that American citizens believe that they have under the Constitution.

Mr. NOJEIM. A couple points in response to Ms. MacDonald.

First, in the Mayfield case, the government never had to show

probable cause of crime in order to break into his home. It’s just

a different standard. It’s a lower standard. They used the PATRIOT Act to break into his home. They didn’t give notice. They

wouldn’t have to give notice—I’m sorry. Pre-PATRIOT Act, they

would have had to give notice. They would have had to, when they

broke in and downloaded the computer hard drives, took 355 digital photographs, took 10 samples of DNA, they’d have to leave a

notice saying this is what we took from your apartment.

You know what Mayfield’s most concerned about now? All this

information that was gathered has now been shared. It’s been

shared under the information-sharing provisions of the PATRIOT

Act. There’s not a Rule 41 A-type procedure for Mayfield to get it

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all back, to get back what was downloaded from his computer.

That’s one of his concerns.

The other point that Ms. MacDonald made was about the National Security Letter statute. This I need to illustrate. The PATRIOT Act rewrote the National Security Letter statute.

This is 18 USC section 2709, before the PATRIOT Act.

This is what the PATRIOT Act did to the National Security Letter statute. The parts that are in yellow were added by the PATRIOT Act. The parts that are crossed out were deleted by the PATRIOT Act.

Chairman ROBERTS. If you can, Mr. Nojeim, speak up. I apologize

that we don’t have a rolling mike.

Mr. NOJEIM. This is what the Court did to 18 USC section 2709.

It struck the parts that were added by the PATRIOT Act and it

struck the parts that were in the statute before the PATRIOT Act

amended it that were not deleted by the PATRIOT Act. It struck

every single sentence, every phrase, every comma of section 505(a)

of the PATRIOT Act. It is simply not accurate to say that it didn’t

strike a section of the PATRIOT Act.

[The chart referred to follows:]

76

77

78

79

Mr. NOJEIM. In his opinion striking this National Security Letter

statute, Judge Morero repeatedly, repeatedly referred to amendments made by section 505(a) of the PATRIOT Act. He noted as examples of abuses conduct that could not have been conducted prior

to the PATRIOT Act changes. In particular with respect to the gag

in section 505(a), he said that the requirement of the tie to an

agent of a foreign power limits the potential for abuse and cited

that as one of the reasons he was striking down this statute.

Ms. MACDONALD. I read that opinion very differently. The ACLU

was challenging the 1986 law on the fact that there was a gag

order in the National Security Letter 1986 law that was put there

by Patrick Leahy. The PATRIOT Act changed the 1986 law to this

extent: it removed the agent of a foreign power requirement. That

is not the issue that was before the Court.

The issue before the Court was the constitutionality of the gag

order which was in 1986. Yes, it struck down the entire section because the PATRIOT Act merely amended that section. The PATRIOT Act changes were not what was at stake. It really is more

accurate to say it struck down the 1986 law.

On the Mayfield case, again they were breaking into his house

because he was under investigation for terrorism, not for a garden

variety crime. Pre-PATRIOT Act they would have had to have

given notice. Do we want to be giving notice to suspects in terrorism cases? I don’t think so. Now, are there going to be cases in

the future, perhaps, where other American citizens are suspected

of terrorism. Could be. I wish we knew that no American is ever

going to be tempted to join into a terrorist plot.

We don’t have a rule to that effect. I think that the power to investigate terror suspects is properly limited by the PATRIOT Act.

That was a terrorism investigation, not a criminal investigation.

Chairman ROBERTS. Senator Rockefeller.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman. I just

have one question. Over the months, years of its history, it seems

to me to have always been the core question. That is, I’m not sure

which one said it, but one of you said that the FISA judges are

nothing more than a rubber stamp.

I think that there are those who oppose the PATRIOT Act or

want to see it changed because they accept that. I’m not a lawyer

and I would wish to hear each of you say why you think or what

you think about that statement.

Mr. DEMPSEY. Senator, that was my statement, so if I could

first—let me make it clear. I don’t think that the FISA judges are

rubber stamps in reviewing the content interception orders or the

physical search orders, and they have proven that because they

have clearly pushed back against the FBI and against the Office

of Intelligence Policy Review, which presents the orders to them.

Absolutely, I don’t think that they are rubber stamps.

I think under 215 they don’t want to be rubber stamps, but as

I read the statute it sort of makes them function as rubber stamps.

It basically says, there will be no facts in front of you and you cannot ask for facts or asking for facts is outside the scope of the statute. I think that court is an important institution. I think they may

ultimately, as we go forward, be given additional responsibilities.

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I don’t want them to be rubber stamps. The PATRIOT Act, at

least 215, as adopted, and probably the pen register changes, if

adopted, do pretty much make them into that.

Vice Chairman ROCKEFELLER. How would you respond to that,

Ms. MacDonald?

Ms. MACDONALD. That was actually my statement. I said that in

my impression I hear critics accusing the FISA court of being a

rubber stamp because it’s in secret. I think that is an insult to Article III judges who rotate in and out of that court. I have to assume that they are taking their responsibilities extraordinarily seriously.

Let’s not forget that FISA, the original law, was already a radical

civil libertarian idea that a judge should be involved in foreign intelligence investigations in the first place. The whole wisdom of

constitutional assumptions up to that point was that anything involving foreign espionage, foreign terrorism, was within the Executive branch’s discretion, because judges don’t have the knowledge

to pass on such matters. The very fact that we have a court at all

basically issuing warrants for foreign intelligence investigations I

think is already a significant check on executive power.

The idea that anything should be public about that court to me

is preposterous.

Vice Chairman ROCKEFELLER. That I’m not questioning.

Mr. Dempsey said that they have no facts before them. When you

say that to the average American they say, ‘‘Well, they must just

be operating automatically or on automatic pilot.’’

Ms. MACDONALD. They have the record that is presented to take

a request before the FISA court.

Vice Chairman ROCKEFELLER. The facts that they do have reflect

on the decision that they will proceed to make.

Ms. MACDONALD. That the records are relevant to a terrorism investigation.

Vice Chairman ROCKEFELLER. And, Mr. Dempsey, you would

say?

Mr. DEMPSEY. Well, I guess I have to say, Mr. Chairman, at

some level I don’t know, since I haven’t seen a 215 or post-PATRIOT pen register application to the FISA court. As I read the

statute, it says nothing about the factual determination. If there is

one and if there is a factual showing—and, by the way, internally

the FBI does prepare, internally, a factual basis for both the National Security Letters and 215, and I assume for the pen registers—if they do, I think that should be part of the statute.

If they don’t, then I think they are operating on autopilot, and

that’s where it would be good if this Committee could say something publicly about what it has seen, that 215 and pen register

applications do or do not have a factual predicate to them, and it

is or is not something that would show relevance in the particularity of that request.

National Security Letters, of course, never are presented to a

judge. I think they should be. I think everything should be rolled

into 215.

Ms. MACDONALD. if you have a judge, it’s not enough, and if you

don’t have a judge, then it’s not enough. The identical language

was what was governing the FBI before 9/11 when this Committee

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raised the alarm that the FISA process was taking months and

that the OIPR was putting probable cause standards that were

completely unjustified by the statute.

The practice is clearly to develop a substantial record to take to

the court.

Vice Chairman ROCKEFELLER. You think that the necessity of

getting—as you pointed out, I think very effectively, this is about

terrorism and our Nation’s security—that there is a certain rush to

get decisions made for purposes of looking or not looking or whatever, and that some then would interpret that as, in and of itself,

being avoiding their particular practices, which would not apply to

a national security type situation, an ordinary law situation.

Shakespeare could have said that better.

Ms. MACDONALD. Again let’s just remember that your peers can

get those records. A grand jury can subpoena those records with no

judge involved at all. The PATRIOT Act gives you a judge. FISA

gives you a judge. Those records are not protected by the Fourth

Amendment. You do not need a probable cause warrant to get

them. A prosecutor can say give me those records right now.

Vice Chairman ROCKEFELLER. Would you disagree with that, Mr.

Nojeim?

Mr. NOJEIM. I would say that she’s gone a little too far in saying

that the records are completely unprotected by the Fourth Amendment because they’re in the hands of a third party. For example,

when I send an e-mail to you, that e-mail is in the hands of an

Internet service provider. The content of that e-mail, I believe, is

protected by the Fourth Amendment. So this notion that everything that’s in the hands of a third party is unprotected I don’t

know that I would go that far.

Ms. MACDONALD. The PATRIOT Act does not make the content

of that e-mail available. That is protected First Amendment information. Third party records——

Mr. NOJEIM. Actually, if I could just follow up on that, what happened in the PATRIOT Act was the pen register and trap and trace

language that used to apply only to telephone records and was interpreted to apply to Internet records was explicitly applied to

Internet records. It wasn’t clarified that that language doesn’t include, for example, content type information that might be in a person’s search request when they make a search request under

Google, for example.

One of the things that we’re suggesting that this Committee or

Congress do is to clarify that that kind of information, which is

content, would not be available under pen registers and trap and

trace devices.

Ms. MACDONALD. That’s fine. This is minutiae. The fact is, U.S.

v. Miller, a Supreme Court case of 1976, said no Fourth Amendment privacy interest in records in third party hands. That’s why

a prosecutor can subpoena them.

Vice Chairman ROCKEFELLER. This has been enlightening and

helpful. I thank you all.

Chairman ROBERTS. Senator Corzine.

Senator CORZINE. I really just need to ask for the facts in the

Mayfield case. Can someone give me the chronology about what authorizations occurred, didn’t occur, and how soon the individual

82

was made aware? What was the flow. I apologize if I didn’t get

through all my briefings, but actually looking at some of these individual cases——

Chairman ROBERTS. Senator, could I make a suggestion, that we

go into that in a closed session, as to chronological order that you

requested? I want the witnesses to respond, if in fact you have

something to say, but let me just say that I think you should raise

that question again during the closed session so we can get a better

answer.

I would only say that at the time, I think it was Ms. MacDonald,

indicated that it was a fingerprint mistake. We thought this gentlemen had the same fingerprint as was located on a bomb in Madrid.

As you remember, we were going through quite a time here in regard to a consensus threat analysis that, as it turned out—I’ll just

stop right there.

We did a lot in terms of security measures and everybody was

very intense at that particular time, very concerned. As it turned

out, that was not the case in regard to the level that perhaps was

acted upon. I probably ought to quit talking about it.

At any rate, it was at that particular time. We had officers

around here, as you well remember, with gas masks and automatic

weapons and security moved away, and parents of my staffers calling. One Senator just left. It was all based on the Madrid syndrome. You had a situation where you had a fingerprint mistake.

I don’t think that that’s an abuse of the PATRIOT Act. That was

a mistake by the FBI and the fingerprint. Now that didn’t answer

your question, and I apologize. At least I wanted to bring that up.

If you would like to pursue that.

Senator CORZINE. I respect the idea that we ought to parse this,

if we were to parse this, in private. What is in the public domain,

if someone had a comment on it.

I have a simple question. Was there a FISA request.

Mr. NOJEIM. Yes. There was a FISA request. The simple two-sentence explanation is, Mayfield enlisted in the Army and submitted

a fingerprint. It was that fingerprint that was mistakenly matched

with a fingerprint on some detonators of undetonated bombs that

were found in Madrid. The government used that match to detain

Mayfield on a material witness warrant, but prior to that it had

secretly broken into his home, apparently a number of times, and

also conducted electronic surveillance using the Foreign Intelligence Surveillance Act, as amended by the PATRIOT Act.

Mr. DEMPSEY. Mr. Chairman.

Chairman ROBERTS. Yes, Mr. Dempsey.

Mr. DEMPSEY. Could I just make one brief comment, not on the

Mayfield question but going back to the discussion of abuse and

sort of what’s the burden of proof, so to speak, on the PATRIOT

Act. In November 2001 the National Security Law unit at the FBI

sent a field memo out to agents explaining the National Security

Letter provisions, pointing out that the National Security Letters

are powerful investigative tools. However, they just be used judiciously. It said that the USA PATRIOT Act greatly broadened the

FBI’s authority to gather this information; however, the provisions

in the Act relating to the NSLs are subject to a sunset provision

that calls for the expiration of those provisions in 4 years. In decidVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00086 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ing whether or not to reauthorize the broadened authority, Congress certainly will examine the manner in which the FBI exercised it.

Now in that sense I think that the sunsets worked. The sunsets

have required the government to be careful. There may be abuses,

either in the Mayfield case or in some of the cases I cited, abuses

may yet come to light, but because of the sunsets we did have this

exercise of caution implicitly recommended by FBI headquarters.

I think we need to either have another sunset or we need to find

some checks and balances that will serve the same purpose and ensure that these are exercised carefully. Because if the sunsets go

away, then I’m not sure what there is left.

Chairman ROBERTS. Senator Chambliss. You are like Shane; you

come back.

Senator CHAMBLISS. When you page me, Mr. Chairman, I come.

I apologize for having to come and go, but this is too interesting

a subject and too important a subject to not come back and dialog

on a couple of issues.

First of all, Mr. Dempsey, in your opening comments you talked

about sneak and peek and the use of it relative to a couple of instances that you pointed out, one going into a judge’s chamber to

look for whatever I guess the FBI in that case was looking for and,

second, in the office of a health care provider. In both those cases

they used the PATRIOT Act.

How could you use the PATRIOT Act in a non-terrorist situation

in the two examples that you gave?

Mr. DEMPSEY. Isn’t that a fascinating question? That would perplex most people, Senator. The fact is that there are provisions in

the PATRIOT Act that have nothing to do with terrorism. Sneak

and peek is No. 1. Remember, for terrorism investigations the FBI

has sneak and peek authority under FISA. If sneak and peek authority were needed for criminal investigations of terrorism, some

Senators, including Senator Leahy, said, ‘‘Well, OK, let’s have a

sneak and peek for terrorism cases.’’

‘‘Uh-uh’’, said the Justice Department. We want it for all cases.

We want it for student loan cases. We want it for Medicare fraud

cases. We want it for judicial corruption cases. We want it for

check-kiting cases. That’s what was enacted and that’s how it’s

being used. I think most people would be astonished to realize that

the PATRIOT Act is being used for sneak and peek searches in

non-terrorism, non-violent cases.

Senator CHAMBLISS. Is there a specific authorization for sneak

and peek to be used in non-terrorist cases within the PATRIOT

Act?

Mr. DEMPSEY. Well, the section was generic in nature. It was a

generic exception to the rule which generally requires notice in the

execution of warrants. It was sort of shoehorned in there. It’s a little bit of an odd provision.

Senator CHAMBLISS. Of course, sneak and peeks have been used,

particularly in organized crime cases, drug cases, I know for years.

Are you telling me that this was something different, that there

was some additional authority given in the PATRIOT Act that allowed them to use this versus the previous sneak and peek authority?

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Mr. DEMPSEY. My own view is that the Justice Department was

trying to bootstrap the existing authority, which I think was a little

bit shaky, it couldn’t be pushed too far, it had to be used with care,

in my view it had to be confined to cases where there was risk of

destruction of the evidence or risk of intimidation of witnesses or

flight from prosecution or risk of loss of life or some violent act.

What happened in the PATRIOT Act was that basically the Justice Department invoked the authority of the Congress to bolster

that authority, expand the kind of cases in which it could be used,

and in essence give a green light to the judges, backed up by Congress. Judges have allowed sneak and peeks in criminal cases before the PATRIOT Act.

I think the Justice Department was a little worried about what

ground that stood upon. Some Supreme Court cases had said that

notice is more important than we had thought when the original

sneak and peek cases were decided, and I think the Justice Department was trying to get Congress to sort of bolster that authority

and expand it in the sense of putting it on what seemed to be a

firmer foundation, although, of course, it’s the Constitution that’s

the final test.

I think that there was an effort by the Justice Department to

take some somewhat uncertain, often used but still uncertain and

cautiously exercised, judicial common law authority and bolster

that with this emergency legislation. I think they shouldn’t have

done it for cases, non-terrorism-related. I think that is somewhat

surprising, that it turned out that way.

I think that now the judges, if anything, are probably more confused about what are the standards for sneak and peek searches.

It looks a little bit like the constraints are off.

Senator CHAMBLISS. Ms. MacDonald, according to your opening

comments, I don’t think you agree with that. Am I right?

Ms. MACDONALD. That’s a good supposition. The theory that

somehow the authority to delay notice of a search was in any constitutional jeopardy before the PATRIOT Act I disagree with 100

percent. The cases had upheld sneak and peek authority. In fact,

I don’t see how you can conduct any kind of pre-emptive investigation, be it criminal or terrorism, with notice. You can’t.

If sneak and peek hadn’t existed, somebody would have had to

invent it, because if you are trying to limn out the extent of a

criminal conspiracy, you need secrecy up until the point when you

have evidence. You need secrecy. Remember, the other point about

this authority, which pre-existed the PATRIOT Act and which the

PATRIOT Act merely codified, is that notice is only delayed.

There is no authority to withhold notice for eternity. All that the

PATRIOT Act did was change, in one case, a 7-day rule of thumb

to the phrase ‘‘reasonable period of delay.’’ Courts all the time operate under that type of language, and we don’t have a problem with

it. It is in fact, in case law, quite rare to have specific numerical

barriers on anything. This is why we have the common law system,

because courts like to look at facts and use their own judgment.

As far as getting rid of the limits that Mr. Dempsey said, that’s

not true. The PATRIOT Act points to the exact set of circumstances

that he just enumerated—witness intimidation, destruction of evidence, jeopardizing a trial or unduly delaying a trial, putting someVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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body’s life in jeopardy. Those existed pre-PATRIOT Act, they exist

post-PATRIOT Act.

I don’t think the Justice Department was in any fear of the

power being taken away from them. I think what they wanted was

a uniform national standard for complex criminal or terror investigations so they didn’t have to worry about what the Second Circuit’s specific details were versus the Ninth Circuit’s. Because we

have national investigations, be they criminal or terror.

Mr. DEMPSEY. Then let’s write those standards. What the Congress did in the PATRIOT Act was to refer to a list of circumstances not drawn up for sneak and peek searches, not drafted

for the PATRIOT Act but drafted a number of years ago in a law

having to do with delayed notice of access to stored e-mail. The PATRIOT Act simply references those circumstances by referral—the

risk of loss of life, absolutely, intimidation of witnesses, destruction

of evidence, flight from prosecution. They also include otherwise

unduly jeopardizing an investigation or delaying a trial.

It turns out that the Attorney General report just last week that

the majority of the sneak and peeks that have been approved under

the PATRIOT Act in non-terrorism cases since it was adopted have

been in that catch-all category of unduly delaying a trial or otherwise jeopardizing an investigation.

If we want to give standards, if we want to give uniformity, if

we want to give guidance to the courts, let’s give them guidance.

Let’s think about what are the circumstances in which this technique is appropriate and write them and not reference some other

circumstances developed for another purpose.

I think it would be useful to actually look back at the cases. I’m

not sure that any case has ever said that a delay in a trial is a

reason to break secretly into somebody’s house. I don’t think there

is a case on that.

Chairman ROBERTS. I want to thank all the witnesses for a very

challenging and intellectually stimulating hearing and for your advice and counsel as we go through the reauthorization of the Act.

You have been most helpful and been patient and you have persevered, and we thank you very much for your attendance.

The hearing is concluded.

[Whereupon, at 4:44 p.m., the hearing adjourned.]

(87)

THE HISTORY AND APPLICATION OF THE USA

PATRIOT ACT AND THE IMPORTANCE OF

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 (FISA)

DAY TWO

WEDNESDAY, APRIL 27, 2005

UNITED STATES SENATE,

SENATE SELECT COMMITTEE ON INTELLIGENCE,

Washington, DC.

The Committee met, pursuant to notice, at 9:37 a.m., in room

SH–216, Hart Senate Office Building, Hon. Pat Roberts (Chairman

of the Committee) presiding.

Committee Members Present: Senators Roberts, DeWine, Snowe,

Rockefeller, Levin, Wyden and Mikulski.

OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN

Chairman ROBERTS. The Committee will come to order.

The Senate Select Committee on Intelligence today continues its

ongoing oversight of the USA PATRIOT Act. This is the third in

a series of three hearings designed to educate Members and the

public as the Senate considers the repeal of the sunset provision,

and modification to other intelligence authorities.

Last week, the Committee heard from a panel of outside experts

with regard to the authorities contained in the PATRIOT Act.

Later in the week, the Committee held a very informative closed

hearing on the use by the intelligence community field operatives

of the tools provided by the PATRIOT Act, and today it is my opinion that I have heard nothing to substantiate the allegations that

abuses of the tools that are provided by the USA PATRIOT Act

have led to violations of the civil rights of American citizens. I

have, however, heard testimony and received other information

that clearly demonstrates how the PATRIOT Act has been instrumental in helping our intelligence community agencies, in particular the FBI, identify and interdict terrorists and other national

security threats.

The purpose of today’s hearing is to receive testimony concerning

the Administration’s position on the authorities provided in the PATRIOT Act, including those provisions subject to sunset. We have

a distinguished panel—the Honorable Alberto Gonzales, Attorney

General of the United States; the Honorable Robert Mueller, the

Director of the Federal Bureau of Investigation; and the Honorable

Porter Goss, the Director of the Central Intelligence Agency. The

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Committee thanks all of our witnesses for being here today, and for

taking time out of your very valuable schedule.

This series of hearings is not the Committee’s first review of the

USA PATRIOT Act or the Foreign Intelligence Surveillance Act,

also known as FISA. The Committee regularly holds hearings and

conducts briefings and receives information in regard to activities

of the intelligence community. The Committee conducted a closed

hearing on the PATRIOT Act during the last Congress. We receive

detailed reports from the Department of Justice every 6 months in

regard to FISA collection, and annual reports on the use of other

surveillance tools.

The Committee is also in the final stages of completing its second

audit of the procedures and practices in the use of FISA. This comprehensive classified analysis will represent one of the most thorough reviews of the executive branch activities under FISA since

the USA PATRIOT Act was enacted.

Now, before I recognize the Vice Chairman, I want to reiterate

some fundamental principles that will inform our consideration of

the USA PATRIOT Act reauthorization and any other modifications to law or policy governing intelligence activities. First, our intelligence agencies need flexible authorities to confront terrorists,

spies, and proliferators and other national security threats.

Second, as we seek to protect the national security, we must also

ensure that civil liberties and privacy are not sacrificed in the process. This is not a zero sum game, however. As former Supreme

Court Justice Arthur Goldberg noted, while the Constitution does

protect against invasions of individual rights, it is not a suicide

pact.

Third, these are not matters of first impression. During their interpretation of the Constitution and the President’s responsibility

to protect national security, Federal courts have wrestled with

many of these issues before. And the courts have recognized the

authority of the President to conduct warrantless electronic surveillance of foreign powers and their agents. Well established judicial

precedents also make clear that certain records, even of the most

private information, lose their constitutional protection when voluntarily exposed publicly or to a business or to a third party.

Finally, I will support reasonable modifications to the USA PATRIOT Act provisions or other authorities that clarify legal uncertainties, but I will oppose modifications that place unnecessary

hurdles in the path of lawful intelligence investigations.

Now, the Senate’s consideration of modifications to section 215 of

the US PATRIOT Act will serve as a good example of how I intend

to apply these fundamental principles. I had previously expressed

my support for the modifications made to FISA by section 215. The

‘‘business records’’ that our investigators now have access to, following a review by a Federal judge, are very important pieces of

the intelligence puzzle. They form the basis for further investigation of national security threats.

Despite all of the talk that has been directed at section 215, and

obvious concern, I have heard of no substantial allegation of abuse

or misuse. There may have been some mistakes, but it certainly

didn’t have anything to do with the PATRIOT Act. In fact, I believe

the FBI’s use of the authority may have been a little bit too judiVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 C:\INTELL\24983.TXT CarolB PsN: CarolB
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cious. While I recognize that some clarifying modifications to section 215 may be necessary, I will oppose any modification that increased the standard for a business record order above ‘‘relevance’’

or alterations that place unreasonable barriers between these

records and the intelligence officials.

Those provisions of the USA PATRIOT Act, including section

215, that will expire at the end of the year must be reauthorized.

The alternative is a return to a failed, outdated, and illogical limit

on national security investigations that tied our hands prior to the

9/11 attacks. The dangers are real, and we should give our people

every constitutional tool available to fight and defeat terrorism.

I now recognize the distinguished Vice Chairman for any remarks he might wish to make.

OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman.

I greet all three of you distinguished leaders of your agencies and

express embarrassment that there are only four Members of our

Committee here. If there are any that choose to listen to this on

in-Senate television, we would welcome their coming in and participating in this Committee meeting. This is not an impressive display of government oversight.

I do welcome you. Our principle focus has been on one title of the

PATRIOT Act, which is Title II on enhanced surveillance procedures. That has, as we discussed before, 16 provisions that will

cease to have effect or sunset on December 31st of this year. In addition, the recently enacted Intelligence Reform Act authorizes the

use of the FISA, the Foreign Intelligence Surveillance Act, in the

case of so-called lone wolf terrorists. That new authority is also

subject to sunset at the end of this year.

So these hearings and related hearing before the Senate Judiciary Committee and in the House also will help Congress to resolve

two basic questions. First, on the basis of experience and further

reflection since September 11, 2001, should any of the expiring authorities be amended? And second, as originally enacted or as

amended, should the expiring provisions be made, in fact, permanent?

From last week’s hearings it appears that there is broad support

for the proposition. Even a critic of parts of the PATRIOT Act conceded that, ‘‘we see not a single power in the Act that needs to sunset or go away entirely.’’ Rather, the issue is whether several sections of the Act should be amended to provide additional checks

and balances. It’s my hope that we can now begin to focus on the

suggestions for improving several of the provisions that are now

scheduled to expire at the end of this year.

In the Senate there is a bipartisan bill, S. 737, the Security and

Freedom Enhancement Act, or SAFE Act, introduced by Senator

Craig. Senator Corzine of our Committee is one of the 10 bipartisan

cosponsors of this Act. The SAFE Act would make permanent most

of the PATRIOT Act’s investigative tools without change and

amend several other PATRIOT Act tools to provide additional safeguards. I have reached no conclusions myself about the particulars

of the SAFE Act, or I choose not to at this point, which has been

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referred to the Judiciary Committee and also will be studied by our

colleagues very carefully in that body.

I do believe on the basis of the breadth of its sponsorship and

the supporting testimony that we have heard that the legislation

merits our serious consideration. I look forward to hearing from our

witnesses today about the proposals in the SAFE Act, including

any objections or alternative suggestions that you may have for ensuring both sufficient focus on suspected terrorists and sufficient

judicial and congressional oversight.

We need effective investigative tools against terrorism. Nobody

can argue that. We need to be mindful of our Constitution and our

values. And we need to build a broad public consensus that sustains our efforts against a war on terrorism which I think will last

for decades, in those years to come. This will require intensive effort by the executive and legislative branches, to give the American

public additional confidence that powerful investigative tools will

be used effectively and that they will be used judiciously. I think

this can be done, but the American public is not easily sold on such

matters. On the other hand, fighting a war on terrorism has its

own requirements by themselves.

Today’s witnesses head the three organizations that are responsible, along with the Department of Defense, for developing, issuing

and carrying out the legal and operational guidance at the heart

of our interrogation program, and that is another matter for another day.

Mr. Chairman, I thank you, and again I welcome the witnesses.

Chairman ROBERTS. We are pleased to have the Attorney General and the Director of the FBI and the Director of the CIA with

us. And in the following order they will be recognized—the Attorney General, and the FBI Director, and the CIA Director. So General Gonzales, if you would like to proceed, sir, you are most welcome to do so at this time.

[The prepared statement of Attorney General Gonzales and Director Mueller follows:]

PREPARED STATEMENT OF ALBERTO R. GONZALES AND ROBERT S. MUELLER III

Chairman Roberts, Vice Chairman Rockefeller, and Members of the Committee:

We are pleased to be here today to discuss the government’s use of authorities

granted to it by Congress under the Foreign Intelligence Surveillance Act of 1978

(FISA). In particular, we appreciate the opportunity to have a candid discussion

about the impact of the amendments to FISA made by the USA PATRIOT Act and

how critical they are to the government’s ability to successfully prosecute the war

on terrorism and prevent another attack like that of September 11 from ever happening again.

As we stated in our testimony to the Senate Judiciary Committee, we are open

to suggestions for strengthening and clarifying the USA PATRIOT Act, and we look

forward to meeting with people both inside and outside of Congress who have expressed views about the Act. However, we will not support any proposal that would

undermine our ability to combat terror ism effect ively.

I. FISA STATISTICS

First, we would like to talk with you about the use of FISA generally. Since September 11, the volume of applications to the Foreign Intelligence Surveillance Court

(FISA court) has dramatically increased.

• In 2000, 1,012 applications for surveillance or search were filed under FISA. As

the Department’s public annual FISA report sent to Congress on April 1, 2005

states, in 2004 we filed 1,758 applications, a 74 percent increase in 4 years.

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• Of the 1,758 applications made in 2004, none were denied, although 94 were

modified by the FISA court in some substantive way.

II. KEY USES OF FISA AUTHORITIES IN THE WAR ON TERRORISM

In enacting the USA PATRIOT Act, the Intelligence Authorization Act for Fiscal

Year 2002, and the Intelligence Reform and Terrorism Prevention Act of 2004, Congress provided the government with vital tools that it has used regularly and effectively in its war on terrorism. The reforms contained in those measures affect every

single application made by the Department for electronic surveillance or physical

search of suspected terrorists and have enabled the government to become quicker

and more flexible in gathering critical intelligence information on suspected terrorists. It is because of the key importance of these tools to the war on terror that we

ask you to reauthorize the provisions of the USA PATRIOT Act scheduled to expire

at the end of this year. Of particular concern is section 206’s authorization of

multipoint or ‘‘roving’’ wiretaps, section 207’s expansion of FISA’ s authorization periods for certain cases, section 214’s revision of the legal standard for installing and

using pen register/trap and trace devices, and section 215’s grant of the ability to

obtain a Court order requesting the production of business records related to national security investigations.

In addition, the Intelligence Reform and Terrorism Prevention Act of 2004 includes a ‘‘lone wolf’ provision that expands the definition of ‘‘agent of a foreign

power’’ to include a non-United States person, who acts alone or is believed to be

acting alone and who engages in international terrorism or in activities in preparation therefor. This provision is also scheduled to sunset at the end of this year, and

we ask that it be made permanent as well.

A. Roving Wiretaps

Section 206 of the USA PATRIOT Act extends to FISA the ability to ‘‘follow the

target’’ for purposes of surveillance rather than tie the surveillance to a particular

facility and provider when the target’s actions may have the effect of thwarting that

surveillance. In the Attorney General’s testimony at the beginning of this month before the Senate Judiciary Committee, he declassified the fact that the FISA court

issued 49 orders authorizing the use of roving surveillance authority under section

206 as of March 30, 2005. Use of roving surveillance has been available to law enforcement for many years and has been upheld as constitutional by several Federal

courts, including the Second, Fifth, and Ninth Circuits. Some object that this provision gives the FBI discretion to conduct surveillance of persons who are not approved targets of court-authorized surveillance. This is wrong. Section 206 did not

change the requirement that before approving electronic surveillance, the FISA

court must find that there is probable cause to believe that the target of the surveillance is either a foreign power or an agent of a foreign power, such as a terrorist

or spy. Without section 206, investigators will once again have to struggle to catch

up to sophisticated terrorists trained to constantly change phones in order to avoid

surveillance.

Critics of section 206 also contend that it allows intelligence investigators to conduct ‘‘John Doe’’ roving surveillance that permits the FBI to wiretap every single

phone line, mobile communications device, or Internet connection the suspect may

use without having to identify the suspect by name. As a result, they fear that the

FBI may violate the communications privacy of innocent Americans. Let me respond

to this criticism in the following way. First, even when the government is unsure

of the name of a target of such a wiretap, FISA requires the government to provide

‘‘the identity, if known, or a description of the target of the electronic surveillance’’

to the FISA Court prior to obtaining the surveillance order. 50 U.S.C. §§ 1804(a)(3)

and 1805(c)(l)(A). As a result, each roving wiretap order is tied to a particular target

whom the FISA Court must find probable cause to believe is a foreign power or an

agent of a foreign power. In addition, the FISA Court must find ‘‘that the actions

of the target of the application may have the effect of thwarting’’ the surveillance,

thereby requiring an analysis of the activities of a foreign power or an agent of a

foreign power that can be identified or described. 50 U.S.C. § 1805 (c)(2)(B). Finally,

it is important to remember that FISA has always required that the government

conduct every surveillance pursuant to appropriate minimization procedures that

limit the government’s acquisition, retention, arid dissemination of irrelevant communications of innocent Americans. Both the Attorney General and the FISA Court

must approve those minimization procedures. Taken together, we believe that these

provisions adequately protect against unwarranted governmental intrusions into the

privacy of Americans. Section 206 sunsets at the end of this year.

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B. Authorized Periods for FISA Collection

Section 207 of the USA PATRIOT Act has been essential to protecting the national security of the United States and protecting the civil liberties of Americans.

It changed the time periods for which electronic surveillance and physical searches

are authorized under FISA and, in doing so, conserved limited OIPR and FBI resources. Instead of devoting time to the mechanics of repeatedly renewing FISA applications in certain cases—which are considerable—those resources can be devoted

instead to other investigative activity as well as conducting appropriate oversight

of the use of intelligence collection authorities by the FBI and other intelligence

agencies. A few examples of how section 207 has helped arc set forth below.

Since its inception, FISA has permitted electronic surveillance of an individual

who is an agent of foreign power based upon his status as a non-United States person who acts in the United States as ‘‘an officer or employee of a foreign power, or

as a member’’ of an international terrorist group. As originally enacted, FISA permitted electronic surveillance of such targets for initial periods of 90 days, with extensions for additional periods of up to 90 days based upon subsequent applications

by the government. In addition, FISA originally allowed the government to conduct

physical searches of any agent of a foreign power (including United States persons)

for initial periods of 45 days, with extensions for additional 45-day periods.

Section 207 of the USA PATRIOT Act changed the law as to permit the government to conduct electronic surveillance and physical search of certain agents of foreign powers and nonresident alien members of international groups for initial periods of 120 days, with extensions for periods of up to 1 year. It also allows the government to obtain authorization to conduct a physical search of any agent of a foreign power for periods of up to 90 days. Section 207 did not change the time periods

applicable for electronic surveillance of United States persons, which remain at 90

days. By making these time periods equivalent, it has enabled the Department to

file streamlined combined electronic surveillance and physical search applications

that, in the past, were tried but abandoned as too cumbersome to do effectively.

As the Attorney General testified before the Senate Judiciary Committee, we estimate that the amendments in section 207 have saved OIPR approximately 60,000

hours of attorney time in the processing of applications. Because of section 207’s

success, we have proposed additional amendments to increase the efficiency of the

FISA process. Among these would be to allow coverage of all non-U.S. person agents

for foreign powers for 120 days initially with each renewal of such authority allowing continued coverage for 1 year. Had this and other proposals been included in

the USA PATRIOT Act, the Department estimates that an additional 25,000 attorney hours would have been saved in the interim. Most of these ideas were specifically endorsed in the recent report of the WMD Commission. The WMD Commission

agreed that these changes would allow the Department to focus its attention where

it is most needed and to ensure adequate attention is given to cases implicating the

civil liberties of Americans. Section 207 is scheduled to sunset at the end of this

year.

C. Pen Registers and Trap and Trace Devices

Some of the most useful, and least intrusive, investigative tools available to both

intelligence and law enforcement investigators are pen registers and trap and trace

devices. These devices record data regarding incoming and outgoing communications, such as all of the telephone numbers that call, or are called by, certain phone

numbers associated with a suspected terrorist or spy. These devices, however, do not

record the substantive content of the communications, such as the words spoken in

a telephone conversation. For that reason, the Supreme Court has held that there

is no Fourth Amendment protected privacy interest in information acquired from

telephone calls by a pen register. Nevertheless, information obtained by pen registers or trap and trace devices can be extremely useful in an investigation by revealing the nature and extent of the contacts between a subject and his confederates. The data provides important leads for investigators, and may assist them in

building the facts necessary to obtain probable cause to support a full content wiretap.

Under chapter 206 of title 18, which—has been in place since 1986, if an FBI

agent and prosecutor in a criminal investigation of a bank robber or an organized

crime figure want to install and use pen registers or trap and trace devices, the

prosecutor must file an application to do so with a Federal court. The application

they must file, however, is exceedingly simple: it need only specify the identity of

the applicant and the law enforcement agency conducting the investigation, as well

as ‘‘a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted—by that agency.’’ Such

applications, of course, include other information about the facility that will be tarVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00096 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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geted and details about the implementation of the collection, as well as ‘‘a statement

of the offense to which the information likely to be obtained . . . relates,’’ but chapter

206 does not require an extended recitation of the facts of the case.

In contrast, prior to the USA PATRIOT Act, in order for an FBI agent conducting

an intelligence investigation to obtain FISA authority to use the same pen register

and trap and trace device to investigate a spy or a terrorist, the government was

required to file a complicated application under title IV of FISA. Not only was the

government’s application required to include ‘‘a certification by the applicant that

the information likely to be obtained is relevant to an ongoing foreign intelligence

or international terrorism investigation being conducted by the Federal Bureau of

Investigation under guidelines approved by the Attorney General,’’ it also had to include the following: information which demonstrates that there is reason to believe

that the telephone line to which the pen register or trap and trace device is to be

attached, or the communication instrument or device to be covered by the pen register or trap and trace device, has been or is about to be used in communication

with:

(A) an individual who is engaging or has engaged in international terrorism

or clandestine intelligence activities that involve or may involve a violation of

the criminal laws of the United States; or

(B) a foreign power or agent of foreign power under circumstances giving reason to believe that the communication concerns or concerned international terrorism or clandestine intelligence activities that involve or may involve a violation of the criminal laws of the United States.

Thus, the government had to make a much different showing in order obtain a

pen register or trap and trace authorization to find out information about a spy or

a terrorist than is required to obtain the very same information about a drug dealer

or other ordinary criminal. Sensibly, section 214 of the USA PATRIOT Act simplified the standard that the government mast meet in order to obtain pen/trap data

in national security cases. Now, in order to obtain a national security pen/trap

order, the applicant must certify ‘‘that the information lkely to be obtained is foreign

intelligence information not concerning a United States person, or is relevant to an

investigation to protect against international terrorism or clandestine intelligence

activities.’’ Importantly, the law requires that such an investigation of a United

States person may not be conducted solely upon the basis of activities protected by

the First Amendment to the Constitution.

Section 214 should not be permitted to expire and return us to the days when

it was mare difficult to obtain pen/trap authority in important national security

cases than in normal criminal cases. This is especially true when the law already

includes provisions that adequately protect the civil liberties of Americans. I urge

you to re-authorize section 214.

D. Access to Tangible Things

Section 215 of the USA PATRIOT Act allows the FBI to obtain an order from the

FISA Court requesting production of any tangible thing, such as business records,

if the items are relevant to an ongoing authorized national security investigation,

which, in the case of a United States person, cannot be based solely upon activities

protected by the First Amendment to the Constitution. The Attorney General also

declassified earlier this month the fact that the FISA Court has issued 35 orders

requiring the production of tangible things under section 215 from the date of the

effective date of the Act through March 30th of this year. None of those orders was

issued to libraries and/or booksellers, and none was for medical or gun records. The

provision to date has been used only to order the production of driver’s license

records, public accommodation records, apartment leasing records, credit card

records, and subscriber information, such as names and addresses, for telephone

numbers captured through court-authorized pen register devices.

Similar to a prosecutor in a criminal case, issuing a grand jury subpoena for an

item relevant to his investigation, so too may the FISA Court issue an order requiring the production of records or items that are relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Section 215

orders, however, are subject to judicial oversight before they are issued—unlike

grand jury subpoenas. The FISA Court must explicitly authorize the use of section

215 to obtain business records before the government may serve the order on a recipient. In contrast, grand jury subpoenas are subject to judicial review only if they

arc challenged by the recipient. Section 215 orders arc also subject to the same

standard as grand jury subpoenas—a relevance standard.

Section 215 has been criticized because it does not exempt libraries and booksellers. The absence of such an exemption is consistent with criminal investigative

practice. Prosecutors have always been able to obtain records from libraries and

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bookstores through grand jury subpoenas. Libraries and booksellers should not become safe havens for terrorists and spies. Last year, a member of a terrorist group

closely affiliated with al Qaeda used Internet service provided by a public library

to communicate with his confederates. Furthermore, we know that spies have used

public library computers to do research to further their espionage and to communicate with their co-conspirators. For example, Brian Regan, a former TRW employee working at the National Reconnaissance Office, who was convicted of espionage, extensively used computers at five public libraries in Northern Virginia and

Maryland to access addresses for the embassies of certain foreign governments.

Concerns that section 215 allows the government to target Americans because of

the books they read or websites they visit are misplaced. The provision explicitly

prohibits the government from conducting, an investigation of a U.S. person based

solely upon protected First Amendment activity. 50 U.S.C. § 1861(a)(2)(B). However,

some criticisms of section 215 have apparently been based on possible ambiguity in

the law. The Department has already stated in litigation that the recipient of a section 215 order may consult with his attorney and may challenge that order in court.

The Department has also stated that the government may seek, and a court may

require, only the production of records that are relevant to a national security investigation, a standard similar to the relevance standard that applies to grand jury

subpoenas in criminal cases. The text of section 215, however, is not as clear as it

could be in these respects. The Department, therefore, is willing to support amendments to Section 215 to clarify these points. Section 215 also is scheduled to sunset

at the end of this year.

E. The ‘‘Wall’’

Before the USA PATRIOT Act, applications for orders authorizing electronic surveillance or physical searches under F1SA had to include a certification from a highranking Executive Branch official that ‘‘the purpose’’ of the surveillance or search

was to gather foreign intelligence information. As interpreted by the courts and the

Justice Department, this requirement meant that the ‘‘primary purpose’’ of the collection had to be to obtain foreign intelligence information rather than evidence of

a crime. Over the years, the prevailing interpretation and implementation of the

‘‘primary purpose’’ standard had the effect of sharply limiting coordination and information sharing between intelligence and law enforcement personnel. Because the

courts evaluated the government’s purpose for using FISA at least in part by examining the nature and extent of such coordination, the more coordination that occurred, the more likely courts would find that law enforcement, rather than foreign

intelligence collection, had become the primary purpose of the surveillance or

search.

During the 1980’s, the Department operated under a set of largely unwritten rules

that limited to some degree information sharing between intelligence and law enforcement officials. In 1995, however, the Department established formal procedures

that more clearly separated law enforcement and intelligence investigations and

limited the sharing of information between intelligence and law enforcement personnel even more than the law required. The promulgation of these procedures was

motivated in part by the concern that the use of FISA authorities would not be allowed to continue in particular investigations if criminal prosecution began to overcome intelligence gathering as an investigation’s primary purpose. The procedures

were intended to permit a degree of interaction and information sharing between

prosecutors and intelligence officers while at the same time ensuring that the FBI

would be able to obtain or continue FISA coverage and later use the fruits of that

coverage in a criminal prosecution. Over time, however, coordination and information sharing between intelligence and law enforcement personnel became more limited in practice than was allowed in reality. A perception arose that improper information sharing could end a career, and a culture developed within the Department

sharply limiting the exchange of information between intelligence and law enforcement officials.

Sections 218 and 504 of the USA PATRIOT Act helped to bring down this ‘‘wall’’

separating intelligence and law enforcement officials. They erased the perceived

statutory impediment to more robust information sharing between intelligence and

law enforcement personnel. They also provided the necessary impetus for the removal of the formal administrative restrictions as well as the informal cultural restrictions on information sharing.

Section 218 of the USA PATRIOT Act eliminated the ‘‘primary purpose’’ requirement. Under section 218, the government may conduct FISA surveillance or

searches if foreign intelligence gathering is a ‘‘significant’’ purpose of the surveillance or search. This eliminated the need for courts to compare the relative weight

of the ‘‘foreign intelligence’’ and ‘‘law enforcement’’ purposes of the surveillance or

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search, and allows increased coordination and sharing of information between intelligence and law enforcement personnel. Section 218 was upheld as constitutional in

2002 by the FISA court of Review. This change, significantly, did not affect the government’s obligation to demonstrate that there is probable cause to beliew that the

target is a foreign power or an agent of a foreign power. Section 504—which is not

subject to sunset—buttressed section 218 by specifically amending FISA to allow intelligence officials conducting FISA surveillances or searches to ‘‘consult’’ with Federal law enforcement officials to ‘‘coordinate’’ efforts to investigate or protect against

international terrorism, espionage, and other foreign threats to national security,

and to clarify that such coordination ‘‘shall not’’ preclude the certification of a ‘‘significant’’ foreign intelligence purpose or the issuance of an authorization order by

the FISA court.

The Department moved aggressively to implement sections 218 and 504. Following passage of the Act, the Attorney General adopted new procedures designed

to increase information sharing between intelligence and law enforcement officials,

which were affirmed by the FISA court of Review on November 18, 2002. The Attorney General has also issued other directives to further enhance information sharing

and coordination between intelligence and law enforcement officials. In practical

terms, a prosecutor may now consult freely with the FBI about what, if any, investigative tools should be used to best prevent terrorist attacks and protect the national security. Unlike section 504, section 218 is scheduled to sunset at the end of

this year.

The increased information sharing facilitated by the USA PATRIOT Act has led

to tangible results in the war against terrorism: plots have been disrupted; terrorists have been apprehended; and convictions have been obtained in terrorism cases.

Information sharing between intelligence and law enforcement personnel, for example, was critical in successfully dismantling a terror cell in Portland, Oregon, popularly known as the ‘‘Portland Seven’’ as well as a terror cell in Lackawanna, New

York. Such information sharing has also been used in the prosecution of several persons involved in al Qaeda drugs-for-weapons plot in San Diego, two of whom have

pleaded guilty; nine associates in Northern Virginia of a violent extremist group

known as Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and sentenced to prison terms ranging from 4 years to life imprisonment; two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and Molishen Yahya Zayed, who were

charged and convicted for conspiring to provide material support to al Qaeda and

HAMAS; Khaled Abdel Latif Dumeisi, who was convicted by a jury in January 2004

of illegally acting as an agent of the former government of Iraq as well as two

counts of perjury; and Enaam Arnaout, the Executive Director of the Illinois-based

Benevolence International Foundation, who had a long-standing relationship with

Osama Bin Laden and pleaded guilty to a racketeering charge, admitting that he

diverted thousands of dollars from his charity organization to support Islamic militant groups in Bosnia and Chechnya. Information sharing between intelligence and

law enforcement personnel has also been extremely valuable in a number of other

ongoing or otherwise sensitive investigations that we arc not at liberty to discuss

today.

While the ‘‘wall’’ primarily hindered the flow of information from intelligence investigators to law enforcement investigators, another set of barriers, before the passage of the USA PATRIOT Act, often hampered law enforcement officials from sharing information with intelligence personnel and others in the government responsible for protecting the national security. Federal law, for example, was interpreted

generally to prohibit Federal prosecutors from disclosing information from grand

jury testimony and criminal investigative wiretaps to intelligence and national defense officials even if that information indicated that terrorists were planning a future attack, unless such officials were actually assisting with the criminal investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, eliminated these

obstacles to information sharing by allowing for the dissemination of that information to assist Federal law enforcement, intelligence, protective, immigration, national defense, and national security officials in the performance of their official duties, even if their duties arc unrelated to the criminal investigation. (Section 203(a)

covers grand jury information, and section 203(b) covers wiretap information.) Section 203(d), likewise, ensures that important information that is obtained by law enforcement means may be shared with intelligence and other national security officials. This provision does so by creating a generic exception to any other law purporting to bar Federal law enforcement, intelligence, immigration, national defense,

or national security officials from receiving, for official use, information regarding

foreign intelligence or counterintelligence obtained as part of a criminal investigation. Indeed, section 905 of the USA PATRIOT Act requires the Attorney General

to expeditiously disclose to the Director of Central Intelligence foreign intelligence

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acquired by the Department of Justice in the course of a criminal investigation unless disclosure of such information would jeopardize an ongoing investigation or impair other significant law enforcement interests.

The Department has relied on section 203 in disclosing vital information to the

intelligence community and other Federal officials on many occasions. Such disclosures, for instance, have been used to assist in the dismantling of terror cells in

Portland, Oregon and Lackawanna, New York and to support the revocation of suspected terrorists’ visas.

Because two provisions in section 203: sections 203(b) and 203(d) are scheduled

to sunset at the end of the year, we provide below specific examples of the utility

of those provisions. Examples of cases where intelligence information from a criminal investigation was appropriately shared with the Intelligence Community under

Section 203(d) include: • Information about the organization of a violent jihad training camp including

training in basic military skills, explosives, weapons and plane hijackings, as well

as a plot to bomb soft targets abroad, resulted from the investigation and criminal

prosecution of a naturalized United States citizen who was associated with an alQaeda related group; • Travel information and the manner that monies were channeled to members of

a seditious conspiracy who traveled from the United States to fight alongside the

Taliban against U.S. and allied forces; • Information about an assassination plot, including the use of false travel documents and transporting monies to a designated State sponsor of terrorism resulted

from the investigation and prosecution of a naturalized United States citizen who

had been the founder of a well-known United States organization; • Information about the use of fraudulent travel documents by a high-ranking

member of a designated foreign terrorist organization emanating from his criminal

investigation and prosecution revealed intelligence information about the manner

and means of the terrorist group’s logistical support network which was shared in

order to assist in protecting the lives of U.S. citizens; • The criminal prosecution of individuals who traveled to, and participated in, a

military-style training camp abroad yielded intelligence information in a number of

areas including details regarding the application forms which permitted attendance

at the training camp; after being convicted, one defendant has testified in a recent

separate Federal criminal trial about this application practice, which assisted in the

admissibility of the form and conviction of the defendants; and • The criminal prosecution of a naturalized U.S. citizen who had traveled to an

Al-Qaeda training camp in Afghanistan revealed information about the group’s practices, logistical support and targeting information.

Title Ill information has similarly been shared with the Intelligence Community

through section 203(b). The potential utility of such information to the intelligence

and national security communities is obvious: suspects whose conversations arc

being monitored without their knowledge may reveal all sorts of information about

terrorists, terrorist plots, or other activities with national security implications. Furthermore, the utility of this provision is not theoretical: the Department has made

disclosures of vital information to the intelligence community and other Federal officials under section 203(b) on many occasions, such as:

• Wiretap interceptions involving a scheme to defraud donors and the Internal

Revenue Service and illegally transfer monies to Iraq generated not only criminal

charges but information concerning the manner and means by which monies were

funneled to Iraq; and

• Intercepted communications, in conjunction with a sting operation, led to criminal charges and intelligence information relating to money laundering, receiving

and attempting to transport night-vision goggles, infrared army lights and other

sensitive military equipment relating to a foreign terrorist organization.

Section 203 is also critical to the operation of the National Counterterrorism Center. The FBI relies upon section 203(d) to provide information obtained in criminal

investigations to analysts in the new National Counterterrorism Center, thus assisting the Center in carrying out its vital counterterrorism missions. The National

Counterterrorism Center represents a strong example of section 203 information

sharing, as the Center uses information provided by law enforcement agencies to

produce comprehensive terrorism analysis; to add to the list of suspected terrorists

on the TIPOFF watchlist; and to distribute terrorism-related information across the

Federal Government.

In addition, last year, during a series of high-profile events—the G–8 Summit in

Georgia, the Democratic Convention in Boston and the Republican Convention in

New York, the November 2004 Presidential election, and other events—a task force

used the information sharing provisions under Section 203(d) as part and parcel of

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performing its critical duties. The 2004 Threat Task Force was a successful interagency effort where there was a robust sharing of information at all levels of government.

F. Protecting Those Complying with FISA Orders

Often, to conduct electronic surveillance and physical searches, the United States

requires the assistance of private communications providers to carry out such court

orders. In the criminal context, those who assist the government in carrying out

wiretaps arc provided with immunity from civil liability. Section 225, which is set

to sunset, provides immunity from civil liability to communication service providers

and others who assist the United States in the execution of FISA orders. Prior to

the passage of the USA PATRIOT Act, those assisting in the carrying out of FISA

orders enjoyed no such immunity. Section 225 simply extends the same immunity

that has long existed in the criminal context to those who assist the United States

in carrying out orders issued by the FISA court. Providing this protection to communication service providers for fulfilling their legal obligations helps to ensure prompt

compliance with FISA orders.

CONCLUSION

It is critical that the elements of the USA PATRIOT Act subject to sunset in a

matter of months be renewed. Failure to do so would take the Intelligence Community and law enforcement back to a time when a full exchange of information was

not possible and the tools available to defend against terrorists were inadequate.

This is unacceptable. The need for constant vigilance against terrorists wishing to

attack our Nation is real, and allowing USA PATRIOT Act provisions to sunset

would damage our ability to prevent such attacks.

We thank the Committee for the opportunity to discuss the importance of the

USA PATRIOT Act to this nation’s ongoing war against terrorism. This Act has a

proven record of success in protecting the American people. Provisions subject to

sunset must be renewed. We look forward to working with the Committee in the

weeks ahead. We appreciate the Committee’s close attention to this important issue.

We would be pleased to answer any questions you may have. Thank you.

STATEMENT OF THE HONORABLE ALBERTO R. GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES

Attorney General GONZALES. Thank you, Mr. Chairman.

Chairman Roberts, Vice Chairman Rockefeller, Members of this

Committee, I am pleased to be here to talk about reauthorization

of the PATRIOT Act. I really appreciate this opportunity to come

before Congress to discuss our successes in the war on terror and

to find new ways to fight for freedom more effectively and consistent with the values that we all cherish as Americans.

As the distinguished Members of this Committee know, the

threat of terrorism remains very serious and it is critical that Congress continues to provide tools that enable prosecutors and law enforcement to both confront terrorism and investigate and prosecute

other serious crimes.

I believe the authorities in the PATRIOT Act have enabled us to

better protect America. But, the exercise of government authority

is always worthy of respectful and accurate discussion. I’m open to

suggestions for strengthening and clarifying the Act, but I cannot

support amendments that will weaken our ability to protect our nation.

The PATRIOT Act, as we know, has helped dismantle the wall

that used to separate law enforcement from intelligence officials.

Prior law, as interpreted and implemented, sharply limited the

ability of law enforcement and intelligence officers to share information and connect the dots in terrorism and espionage investigations.

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As we know, section 203 and section 218 of the PATRIOT Act,

which are scheduled to sunset at the end of this year, brought

down this wall. And together these provisions have reduced the

statutory and cultural barriers to information sharing. And it is information sharing, as the 9/11 Commission and the WMD Commission made clear, and as this Committee knows full well, that will

make the difference in our ongoing efforts to prevent terrorism.

This Committee is familiar with the successful use of section 218,

including investigation of the Portland Seven and the Virginia

Jihad. Section 203 along with section 218 was used extensively

during the investigation of the Holy Land Foundation in 2004. Law

enforcement professionals tell me that allowing sections 203 and

218 to expire would discourage information sharing, making it

more difficult for us to disrupt terrorist plots.

There are other similar commonsense PATRIOT Act provisions

that also will expire if Congress does not take action. Section 206,

which provides national security investigators with an authority

long possessed by criminal investigators, authorizes the use of

multi-point or roving wiretaps, tied to a specific target rather than

a specific communications facility. Before the PATRIOT Act these

orders were not available for a national security investigation

under FISA, a gap in the law that we believe sophisticated terrorists or spies could easily exploit. Although specific examples of the

use of multi-point wiretaps under section 206 remain classified, I

can represent in this open hearing that this authority has been

very valuable.

As of March 30 this year we have used this authority 49 times.

Importantly, 206 contains numerous safeguards to protect civil liberties. The FISA court can only issue a roving wiretap order upon

a finding of probable cause, the order must always be connected to

a particular target, and minimization procedures must be followed

concerning the collection, the retention and dissemination of information about U.S. persons.

Section 215 also filled a gap in the law. It granted national security investigators authority to seek a court order for the production

of records relevant to a foreign intelligence investigation, similar to

a prosecutor’s authority to use grand jury subpoenas as the building blocks of criminal investigations. Use of this provision has been

judicious. We have used this authority 35 times as of March 30 of

this year. Moreover, we have not sought a Section 215 order to obtain library or bookstore records, medical records, or gun sale

records. Let me be clear, the reading habits of ordinary Americans

are of no interest to those investigating terrorists or spies.

Section 213, although not scheduled to sunset is another valuable

provision of the PATRIOT Act. Section 213 codified one consistent

process and standard for delayed notice search warrants, which can

be used in limited circumstances, with judicial approval, to avoid

tipping off criminals who otherwise might flee, destroy evidence, intimidate or kill witnesses, cutoff contact with associates, or take

other action to evade arrest.

Now the portion of Section 213 that has received the most attention is the provision allowing a court to authorize delayed notice if

immediate notice would ‘‘seriously jeopardize’’ an investigation. I

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would like to describe one actual case where immediate notice

would have seriously jeopardized an investigation.

In this case, the Justice Department obtained a delayed notice

search warrant for a Federal Express package that contained counterfeit credit cards. At the time of the search it was very important

not to disclose the existence of a Federal investigation, as this

would have exposed a related Title III wiretap that was ongoing for

major drug trafficking activities. An organized crime drug enforcement task force, which included agents from the DEA, the IRS, the

Pittsburgh police department and other State and local agencies

was engaged in a multi-year investigation that resulted in the indictment of the largest drug trafficking organization ever prosecuted in the western district of Pennsylvania.

While the drug trafficking investigation was ongoing it became

clear that several leaders of the drug trafficking conspiracy had

ties to an ongoing credit card fraud operation. An investigation into

the credit card fraud was undertaken and a search was made of a

Federal Express package that contained fraudulent credit cards.

Had notice of the Federal Express search tied to the credit card

fraud investigation been immediately given, it could have revealed

the ongoing drug trafficking investigation prematurely and the

drug trafficking investigation might have been seriously jeopardized. Even modest delay would not have been available if this provision of section 213 were deleted. It is critical that law enforcement continue to have this vital tool for those limited circumstances where a court finds good cause to permit the temporary

delay of notification of a search.

Finally, I’d like to close by addressing a common question that

must be answered by this Committee and this Congress—the issue

of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act. The PATRIOT Act was a swift

and decisive response to the attacks of September 11. In the weeks

and months following the attacks in Washington, Pennsylvania,

and New York, Democrats and Republicans came together to address the vulnerabilities in our nation’s defenses.

Both Congress and the administration worked with experienced

law enforcement, intelligence and national security personnel to design legislation to better protect the American people. Although

there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress

included sunsets for certain provisions of the PATRIOT Act because Members wanted to ensure that we were not risking the very

liberties we were setting out to defend. And I think today we can

all be proud.

The track record established over the past 3 years has demonstrated the effectiveness of the safeguards of civil liberties put in

place when the Act was passed. There has not been one verified

case of civil liberties abuse. Our Nation is stronger and safer; our

bipartisan work has been a success.

The Department of Justice has exercised care and restraint in

the use of these important authorities because we are committed

to the rule of law. We have followed the law because it is the law,

not because it is scheduled to sunset. With or without sunsets, our

dedication to the rule of law will continue. The Department will

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strive to continue to carry out its work lawfully and appropriately,

and as a citizen I expect Congress will continue its active oversight

over our use of the PATRIOT Act, not because it sunsets but because oversight is a constitutional responsibility of Congress.

So, given the Department’s record in using these authorities, the

obvious effectiveness of these tools in stopping violent crimes and

protecting our nation, and the authority of Congress to re-examine

these provisions at any time to correct abuses, the sunset provisions are, in my judgment, no longer necessary and should be repealed.

The authorities in the PATRIOT Act are critical to our nation’s

efforts in the war against terrorism. The Act has a proven record

of success in protecting the security of the American people while

simultaneously respecting civil liberties. And I question how we

can afford to allow its most important provisions to sunset. The efforts of the terrorists to strike our country surely will not sunset.

I look forward to continuing to work with this Committee in the

period ahead, listening to and responding to your concerns, and

joining together again to protect the security of the American people.

Thank you, Mr. Chairman.

Chairman ROBERTS. Thank you, General.

We now recognize Director Mueller. Welcome back to the Committee, Bob.

STATEMENT OF THE HONORABLE ROBERT S. MUELLER, III,

DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

Director MUELLER. Thank you, and good morning, Mr. Chairman.

Senator Rockefeller, and other Members of the Committee, good

morning. I’m also pleased to be here today to talk about the PATRIOT Act and how it has assisted us in the war on terror.

Indeed, the PATRIOT Act has changed the way the FBI operates,

and I will say that many of our operational counterterrorism successes since September 11 are the direct result of the changes incorporated in the PATRIOT Act. The formal statement that was

submitted by the Attorney General and myself focuses on the key

areas and the key uses of the FISA authorities in the war on terrorism. And as is set forth in that statement, I share the Attorney

General’s belief that these vital tools that have been used regularly

and effectively in our efforts to prevent another attack should be

renewed.

This morning I would like to emphasize the importance of a portion of the PATRIOT Act, that portion that relates to informationsharing, and address the fundamental manner in which those provisions have changed the way we do business.

Last week I know this Committee heard directly from our operational personnel, who provided in a classified setting specific examples of how the PATRIOT Act information-sharing provisions

have altered the landscape for conducting terrorism investigations.

The Committee heard not only from FBI headquarters and FBI

field office personnel but also from our partners in the CIA and our

partners at the NSA about the coordinated teamwork approach

that has guided our operations over the past 3 years.

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Such interagency teamwork has successfully foiled terrorist-related operations and cells from Seattle to Detroit to Lackawanna,

New York. And while the law prior to the PATRIOT Act provided

for some exchange of information, that law was complex and, as a

result, agents often erred on the side of caution and refrained from

sharing information.

Our current integrated approach, which grew from the PATRIOT

Act’s information-sharing provisions, eliminated that hesitation

and now allows agents to more openly work with other governmental agencies, whether they be at the Federal, the State or the

local level.

Prior to the PATRIOT Act, the Federal law was interpreted to

limit the ability of our criminal investigators to disclose criminal

wiretap or grand jury information to counterparts working on intelligence investigations. Sections 203(a) and (b) of the PATRIOT Act

eliminated these barriers to information sharing, allowing for the

routine sharing of information derived from these important criminal tools. And section 203(b) ensures that information developed

through law enforcement methods other than grand jury subpoenas

or criminal wiretaps can also be shared with our intelligence partners at the Federal, State and local levels, as well as our partners

overseas.

Although information does not flow between agencies with a PATRIOT Act label on it, it is quite clear that information derived

from the FBI’s investigations is now assisting other agencies in

performing their missions, principally overseas. As an example, an

FBI field office obtained information of intelligence value while conducting a criminal investigation and shared this information with

the CIA and other intelligence entities. In this particular investigation, a Title III intercept showed that the subject of the investigation was in contact with an overseas number.

Taking that number, investigation undertaken by the CIA and

others determined links between this number and a number associated with a subject of a terrorism investigation who had been captured. This sharing of information permitted additional investigation by each of the intelligence community components, integrating

information that had been found and put together in the United

States with information that had been found and put together overseas.

This sharing of information is absolutely fundamental to the

safety of the American public in the future. And while section 203

removed barriers to sharing criminally-derived information with

our intelligence community partners, section 218 of the PATRIOT

Act was the first step in dismantling the wall between the criminal

and our intelligence investigators. It eliminated the primary purpose requirement that arose from statutory interpretation by the

FISA court and replaced it with a ‘‘significant purpose’’ test. As a

result, FBI agents working on intelligence and counterintelligence

matters now have greater latitude to consult criminal investigators

or prosecutors without putting their investigations at risk.

The increased coordination and information sharing between intelligence and law enforcement agents facilitated by the PATRIOT

Act has allowed us, the FBI, to approach our cases as a single integrated investigation using all of its tools, both criminal and intelVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00105 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ligence, as long as the requirements for each of those tools are

properly met. The successes of these cases are entirely dependent

on the free flow of information between respective investigators

and analysts.

Mr. Chairman, I would like to close with making one point that

I do think has been not fully amplified in the debate, in the public

debate, on the PATRIOT Act and its tools, and that is the role of

the Federal judiciary. For example, the FBI must seek authority

from a Federal judge to utilize a roving wiretap and that judge

must find that there is probable cause to believe that the target of

the surveillance is either a foreign power or an agent of a foreign

power, such as a terrorist or a spy.

If the name of the individual on whom we are seeking roving surveillance is not known to us, we must provide a description of the

individual and that person’s activities to satisfy a Federal judge

that, again, there is probable cause to believe that this person is

a terrorist or a spy and that his actions may have the effect of

thwarting surveillance.

Similarly, under 215, the FBI does not write a warrant authorizing access to business records; rather, it is a Federal judge that

issues the order upon a certification by the government that the

items requested are relevant to an ongoing national security investigation. And finally a judge authorizes the government to conduct

a search, and only the Federal judge can then authorize the government to delay notification, upon making of a showing—delay notification to the subject of that search.

Mr. Chairman, the role of the Federal judiciary is vital to protecting the rights of individuals, particularly where more intrusive

means of investigation are utilized. In addition to the oversight by

Federal judges, the activities of the FBI and DOJ prosecutors are

always tethered to the Constitution, and we take our responsibility

exceptionally seriously.

As the Attorney General has already noted, I as well am unaware of any substantiated allegation that the government has

abused its authority under the PATRIOT Act. This is a tribute to

the men and women in Federal law enforcement and the men and

women in the intelligence community as well as the Federal prosecutors, all of whom are committed to responsibly using the statutes provided by Congress. In renewing these provisions scheduled

to sunset at the end of this year, Congress will ensure that the FBI

will continue to have the tools we need to combat the very real

threat to America posed by terrorists and their supporters.

Thank you for the opportunity to appear here today. I’m happy

to answer any questions.

Chairman ROBERTS. Mr. Director, we thank you very much for

a comprehensive statement.

We now recognize Director Goss.

[The prepared statement of Director Goss follows:]

PREPARED STATEMENT OF PORTER J. GOSS

Good morning, Mr. Chairman, Mr. Vice Chairman, and Members of the Committee.

I appreciate the opportunity to appear before you today to discuss the important

role the USA PATRIOT Act has played in improving the ability of the Intelligence

Community to fight the global war on terrorism. As you recall, in October 2001,

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Members of Congress worked together in a united effort to create legislation that

would give Federal law enforcement and intelligence officials the additional legal

authorities needed to combat the terrorist threat to our country. I can assure you

that the tools you provided in the PATRIOT Act have greatly assisted intelligence

officials in the on-going effort to interdict and disrupt terrorist groups and individuals who seek to do harm to our country and our citizens. I will now briefly discuss

how the PATRIOT Act has been most helpful to intelligence officers, and, along with

my colleagues, the Attorney General, and the Director, FBI, urge you to renew permanently those provisions of the Act due to expire at the end of this year.

INFORMATION SHARING

The PATRIOT Act has played a large role in an information-sharing transformation throughout the Federal law enforcement and intelligence communities,

permitting a cultural shift in previously unshakeable paradigms. Today, intelligence

officers have the ability to receive foreign intelligence information from Federal law

enforcement officials that has been obtained during the course of criminal investigations, and the PATRIOT Act makes it clear that this information may include information obtained from grand jury proceedings and criminal investigative wiretaps.

If the various provisions of the PATRIOT Act that authorize this foreign intelligence

information sharing are permitted to sunset, we will lose some of the essential

weapons used to counter the grave threats posed by al-Qaeda and other terrorist

groups. Now is not the time to engage in unilateral disarmament.

Of particular concern is the ‘‘wall’’ that served to limit the sharing of information

between intelligence and law enforcement officers. The wall was a barrier against

full and discerning dialog and greatly impinged on the effective use of critical tools

necessary to fight terrorism. Continuation of the PATRIOT Act information sharing

provisions ensures while we do not hamstring ourselves in this vital area of intelligence and law enforcement collaboration we will also take the appropriate steps

to protect the privacy rights and civil liberties of Americans.

If the information sharing provisions of the PATRIOT Act are permitted to expire,

currently robust information sharing relationships may be adversely impacted as officials seek guidance on what information sharing is permitted absent the PATRIOT

Act authorities, because the clarifying and instructive benefits of the PATRIOT Act

will be lost. As any war-fighter will tell you, a necessary tool in fighting the battle

is the ability to share information freely to get the job done expeditiously and effectively. Constructs that otherwise preclude information sharing had to be torn down,

and the PATRIOT Act provisions accomplished that end. Resurrection of these obstacles will significantly impede the war effort.

If, however, the provisions scheduled to sunset are renewed, ongoing efforts by

government officials to use the PATRIOT Act authorities to improve information

sharing, to utilize highly valuable limited resources most effectively, and to continue

the cooperation between agencies, will continue. One of the most positive illustrations of this collaborative environment may be found in the National

Counterterrorism Center (NCTC).

• NCTC is a specific example of how the information-sharing authorities of the

PATRIOT Act have been leveraged to benefit the Federal Government as a whole.

• NCTC personnel assigned from multiple Federal law enforcement and intelligence community entities receive foreign intelligence information from the

FBI that is obtained by the Bureau during criminal investigations and disseminated to NCTC under authorities granted by the PATRIOT Act.

• This information is compiled with other foreign intelligence information obtained through traditional intelligence collection methods and is used to

produce all-source terrorism analysis that is subsequently disseminated

throughout the Intelligence Community and to officers within the Department

of Homeland Security and the FBI.

• NCTC officials also use terrorist identity information disseminated by Federal

law enforcement officials under PATRIOT Act authorities to maintain TIPOFF, a data base used to prevent known and suspected terrorists from entering the United States. NCTC officials estimate that the number of known or

suspected terrorists that have been intercepted at US borders, based on FBI

reporting alone, has increased due to the information sharing provisions of

the PATRIOT Act.

In addition to talking about the information sharing provisions that are due to

expire in a few months, I wanted to also highlight the importance of another information sharing authority in the PATRIOT Act. This provision, section 905 of the

Act, not only permits, but also generally requires the Attorney General to expeditiously disclose to the DCI, and now to the DNI under the Intelligence Reform Act

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of 2004, foreign intelligence information acquired by the Department of Justice during the course of criminal investigations. This provision, like the expiring information sharing provisions, encourages the free flow of intelligence information by removing any doubt from the minds of Federal law enforcement officials that sharing

is authorized.

FISA PRIORITIZATION

My colleagues from the Department of Justice will discuss with you how Federal

law enforcement officials have benefited from amendments made to the Foreign Intelligence Surveillance Act (FISA) by the PATRIOT Act. I would like to advise you

how authority granted by the PATRIOT Act has enabled the DCI to improve the

process for submitting FISA requests to the Attorney General and the Foreign Intelligence Surveillance Court.

The PATRIOT Act called upon the DCI to establish requirements and priorities

for foreign intelligence information to be collected under the FISA and to assist the

Attorney General with the dissemination of FISA-derived intelligence. The DNI is

now charged with these responsibilities under the Intelligence Reform and Terrorism Prevention Act of 2004.

In June 2003, the DCI implemented this provision of the PATRIOT Act by creating an interagency panel to prioritize requests seeking authorization to engage in

foreign intelligence collection operations under the FISA. The panel, coordinated by

the ADCI for Collection, includes representatives from the CIA, DOJ, FBI, and NSA.

The prioritization mechanisms established by the panel are working well and have

enabled intelligence officials to carefully weigh and accommodate competing priorities for FISA-authorized collection operations, making the best use of the limited

resources of the FBI, NSA, CIA, and the Department of Justice, and most specifically, the FISA Court.

CONCLUSION

Let me conclude my comments today by saying that the PATRIOT Act has improved the ability of intelligence officials to fight the war on terrorism by removing

legal and cultural impediments that previously prohibited or discouraged the sharing of foreign intelligence obtained by Federal law enforcement officials during the

course of criminal investigations, and by enhancing the ability of the intelligence

and law enforcement communities to collect and analyze vital information to wage

an effective and continuing effort to disrupt international terrorist activities. Failure

to renew the provisions due to sunset will ill-serve the national security of the

United States.

I thank you for inviting me to speak with you today, and for your continued support.

STATEMENT OF THE HONORABLE PORTER J. GOSS,

DIRECTOR, CENTRAL INTELLIGENCE AGENCY

Director GOSS. Thank you, Mr. Chairman. Good morning. Good

morning, Mr. Vice Chairman, Members of the Committee.

I would propose that I ask, in the interest of time and not to repeat some things that I would like to say that have already been

said, that you would accept my full statement and allow me to abbreviate it.

Chairman ROBERTS. Without object it is so ordered, and your request is gladly approved.

Director GOSS. I thank you.

I do associate myself very much with the statements made by the

Attorney General and the Director of the FBI. There are a couple

points I would like to make as the Director of the Central Intelligence Agency, although I would also be very happy to answer

questions as the DCI, which I was when some of this material was

going on, and I have had the responsibility of signing FISA requests and a somewhat different role in that position, which now

Ambassador Negroponte, of course, has assumed.

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I would simply say that it is extremely important for us not to

under-emphasize the information sharing, the coordination, cooperation, change of cultures, breaking down of walls, breaking of

stovepipes, if you will. Remember how much time was spent by

Members of Congress and various Committees, oversight boards,

specially set-up commissions, independent commissions, and so

forth, after 9/11 that said we must work better together.

And there is no question that the manifestation of that has been

made possible by the PATRIOT Act in enterprises such as TTIC,

the Terrorist Threat Integration Center, which has now graduated

into the National Counterterrorism Center, which is probably a

showcase of where we can point out how we bring information together and how it works well for the safety of our country in dealing with the terrorist threat.

Obviously I am here today representing the national foreign intelligence program as seen through the CIA’s eyes and there is a

lot I will not be able to say in open session but I am very happy

to talk about in closed session.

Certainly, sources and methods are involved in the PATRIOT

Act, in our programs, but authorities are appropriate for us to discuss. These authorities are particularly essential for the intelligence community, in particular 203(d) and 214. These represent

areas in sharing, breaking down the ‘‘wall’’ that has been referred

to already—and talk a little bit about modernization, of being able

to keep up with the advantages we have to deal with terrorists

using technology as it exists today, which, of course, the terrorists

are taking advantage of. We need to be able to deal with that,

counter that, and get ahead of it for our own purposes.

I think those two provisions, from our perspective, are critically

important, although I would suggest that the PATRIOT Act has

served this country extremely well across the board. And I also am

not aware of any serious problems with it in terms of invasion of

rights or liberties.

I do admire the safeguards that Director Mueller has referred to.

I have spent some time coming in and signing FISA requests as the

DCI. There is a clear need to prioritize and understand each request, understand what is going on. I think that process works

well. I’m not sure what other testimony has been on that, but my

testimony on it is that it works timely; it works well. It deals with

the crush of business, as it were, on a prioritization basis, which

is very important. And it does provide fresh eyes.

In my case, I must have looked at a couple of dozen things that

I hadn’t seen before because somebody else had signed them or

they had come in under a different channel, and I was very satisfied that this process was working exactly the way any American

would want it, which would be to stay out of their business but to

be applied to people who are trying to infringe our liberties and

damage our people, innocent people, from far shores—people we

call terrorists.

So I think this is a very good use of time, Mr. Chairman, to be

reviewing this matter and being suggestive of the position that

we’ve got a success here; perhaps we could make it a little better.

But I certainly don’t want to give away the tools that, I can assure

you, the intelligence community is using well.

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Thank you, sir.

Chairman ROBERTS. Senators will be recognized for 5 minutes in

the order of their arrival and there will be a second round, if needed.

I have a question in regards to administrative subpoenas. In the

past, the President and Director Mueller have asked Congress to

authorize the FBI to issue what’s called an administrative subpoena in international terrorism investigations. If the government

can use administrative subpoenas in health care fraud investigations and in drug cases, then the obvious question is why can’t we

use them in the international terrorism investigations. It seems to

me that the administrative subpoena tool should be available for

all authorized national security investigations that are conducted

in accordance with the Attorney General guidelines, not just terrorism cases.

I was surprised, however, that the prepared statement by the

Department of Justice and the FBI does not echo these earlier requests for administrative subpoenas. Has the President changed

his mind on this issue? That’s my first question.

Attorney General Gonzales, are you in favor of Congress authorizing the administrative subpoena in national security investigations? And I would also pose the same question to Director Mueller.

General.

Attorney General GONZALES. Mr. Chairman, the President has

not changed his position. We believe administrative subpoenas

would be an additional valuable tool to deal with the terrorist

threat. And so I want to reassure the Committee that we continue

to believe that that is a necessary tool and would respectfully request a serious consideration of that request.

Chairman ROBERTS. Director Mueller.

Director MUELLER. Certainly, yes, we believe that it would be an

exceptionally helpful tool in filling the gaps in getting us the information we need in our national security investigations. I will say

that I spent a substantial amount of time on that in our prepared

statement before the Judiciary Committee. It was in looking at a

sense of brevity that I did not mention it in my opening remarks.

But yes, we continue to press for administrative subpoenas. We

think it is a very useful tool. As you have pointed out, Mr. Chairman, if it is available in health care fraud cases, child pornography

cases, narcotics cases—I think there are approximately 300 separate statutes to provide for the utility or the use of administrative

subpoenas—it makes very good sense for us to have that tool available when it comes to national security investigations.

Chairman ROBERTS. I thank you both for your responses.

We’re in the process of finishing up our audit report on the FISA

process. One of the things that we have found out was that the Department of Justice and the FBI—I don’t know what grade I would

give it, but it’s not a 92; it doesn’t rate that high; maybe 70, passing, I’m not quite sure—of implementing the FISA business records

provisions, section 215 of the PATRIOT Act, took more than 21⁄2

years to issue the first application.

Regardless, your joint statement indicates that approximately 35

FISA—I think maybe you said 39—business record court orders

have been issued since then, and most of these were issued for teleVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00110 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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phone numbers captured through the court-authorized pen registers. My question to you is, why isn’t this technique being used

more?

Director MUELLER. Well, we have the possibility in some areas

of using National Security Letters, as you’re well aware.

Chairman ROBERTS. Yes.

Director MUELLER. We have, in those cases where it’s being handled jointly as an intelligence as well as perhaps a grand jury investigation, it may well be that we’re using grand jury subpoenas.

But in those areas where 215 fills the void, we have gone through

the 215 process.

If you’re comparing on the one hand the use of the 215 process

and the administrative subpoena process, they’re night and day.

The fact of the matter is, the 215 process is somewhat burdensome.

Nonetheless, that is the way the PATRIOT Act established it. It

does go before a judge. So we have had, particularly in the last couple of years, occasions where we have utilized that tool.

Attorney General GONZALES. Mr. Chairman, I think one message

that we would like to leave with the Committee today is that we

take all these authorities very seriously and we try to act responsibly and judiciously in exercising these authorities. If we need to

exercise a 215 authority, it will be exercised. If we don’t need to

exercise it, because there are other ways of getting information,

we’ll pursue other avenues.

Chairman ROBERTS. I have a yellow light here, but I’m going to

try to sneak the last question in, with apologies to my colleagues.

Mr. Attorney General and Director Mueller, at a hearing we held

last week, the FBI’s investigation of Brandon Mayfield was cited as

an abuse of the PATRIOT Act. I know that your answer might be

circumscribed somewhat by the fact that there’s a pending lawsuit

over this case. But could you please respond to that allegation?

Attorney General GONZALES. I’d be happy to, Mr. Chairman.

You’re right; I am limited in what I can say. We have done an

exhaustive review of the allegations made by communication from

the ACLU to Senator Feinstein specifically about Brandon

Mayfield. I am told there was not an abuse of the PATRIOT Act.

There are misimpressions about what authorities were in fact used

in connection with that investigation. People have the mistaken belief that the section 213 authority, delayed notification search warrant, was used there, but that’s not the case. It was a straightforward FISA application in connection with that case.

I think we all need to understand, though, when people ask the

question, was the PATRIOT Act implicated or used at all in connection with that investigation, sure it was, to the extent that FISA

was amended by the PATRIOT Act in areas of information sharing

like 218.

And so to the extent that the PATRIOT Act caused changes in

FISA, then clearly it was implicated. But from what we can tell,

there was no abuse or misuse of the PATRIOT Act in connection

with that investigation.

Chairman ROBERTS. So if somebody makes a mistake on a fingerprint, that isn’t the fault of the PATRIOT Act?

Attorney General GONZALES. That was not the fault of the PATRIOT Act, that’s correct, sir.

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Chairman ROBERTS. Senator Rockefeller.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman.

In section 206—I address this to both of you in that you gave

joint testimony—section 206 of the PATRIOT Act authorizes roving

wiretaps under the Foreign Intelligence Surveillance Act. As it has

been explained to us, the SAFE Act would retain roving wiretaps,

allowing surveillance where the target, for example, uses multiple

cell phones in order to evade detection. And the SAFE Act would

retain John Doe wiretaps where the target cannot be named. But

the SAFE Act would eliminate the combination of the two—John

Doe, roving wiretaps—where neither the location of the surveillance nor the identity of the target is known.

So my question is, what would be the impact of this provision on

the activities of the Bureau? And second, would the elimination of

the John Doe roving wiretaps increase the protection of innocent

Americans from unnecessary surveillance? And third, what protection against unnecessary surveillance exists in the statute as written?

Attorney General GONZALES. Senator, let me begin by emphasizing that we have to go before a Federal judge in order to get a

search warrant under 206. There has to be probable cause that the

target is in fact a foreign power or an agent of a foreign power. In

addition, 206 does include extensive minimization procedures so

that we do ensure that steps are taken to protect the rights of innocent Americans.

I believe that under 206 we have to go to a Federal judge and

provide sufficient information to identify a specific target. There

may be instances where we don’t know the exact identity of someone we believe is a terrorist. Nonetheless, we have to provide sufficient information for the judge to identify that person. If we discover later on that we’ve made a mistake, that in fact we should

be conducting surveillance on Person B as opposed to Person A because we were wrong in our identification, we’d have to go back to

a Federal judge and get a new court order.

Additionally, I’d like to add that we also have to have probable

cause that the facility that we want to target or place that we want

to target, that the terrorist is either using or about to use. And so

we believe that 206 contains an abundant number of safeguards to

ensure that we’ve got a limited search under the supervision of a

Federal judge and that there are adequate safeguards to protect

the privacy interests of Americans.

Director MUELLER. The recommended change does not make

much sense to me. As was pointed out by the Attorney General, if

we have an individual whom we accurately can describe, to differentiate that individual from everybody else, and the person is an

individual which would satisfy the requisite specificity so that a

judge can issue the order allowing us to intercept his conversations,

and the person is roving—in other words, utilizing a number of cell

phones over a period of days—what this statute would mean is that

we would have to go back when we identify another device that

he’s using and get another court order.

If we satisfy the prerequisites of 206 as it is written now, in my

mind that is certainly an adequate safeguard to protect the innocent. Again, I’d emphasize, it goes before a judge; you have to be

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specific in terms of the individual, and you have to be specific in

terms of the usage of that individual of various devices. And persuading a judge that you have probable cause to satisfy those prerequisites in my mind satisfies the need to protect the innocent.

Vice Chairman ROCKEFELLER. OK. I’ll save my next questions for

the next round.

Thank you very much.

Chairman ROBERTS. Senator Levin.

OPENING STATEMENT OF HON. CARL LEVIN

Senator LEVIN. Thank you, Mr. Chairman. Let me add my welcome to all three of you and my thanks for your service.

The morning paper tells us that the State Department has decided to drop from its annual report the number of serious international terrorist incidents that occurred during the previous year.

It’s a very disturbing report to us.

This law requiring an annual report on terrorist incidents has

been on the books for a long time, long before 9/11. But suddenly

we read the State Department has decided they’re no longer going

to tell the American people what the numbers of those incidents

were in the previous year; they’re going to drop that information.

I’m wondering whether—and I’ll ask each of you—whether or not

you were consulted by the State Department prior to this important information being dropped, or at least the decision being made

by them to drop it and to suppress information which is really significant in many people’s eyes to understanding whether or not we

are making progress.

So General, let me start with you. Were you consulted by the

State Department on that issue?

Attorney General GONZALES. Senator, I was not personally consulted; whether or not the department was consulted, I’d have to

find out. But I was not personally consulted.

Senator LEVIN. Fair enough.

Director Mueller.

Director MUELLER. I was not. I was not involved in the issue. But

I’m not certain I would agree with the predicate of the question.

Senator LEVIN. I understand.

Director Goss.

Director GOSS. I believe my role was pretty much limited to making sure that whatever the NCTC had was made available to the

State Department.

Senator LEVIN. Thank you.

Let me first thank you, General Gonzales, for your strong statement of support for oversight by Congress, calling it a constitutional responsibility. You disagree on whether or not sunset was

needed. But nonetheless, in terms of the importance of oversight,

you made a very ringing endorsement of that and we appreciate

that.

And Director Mueller, let me thank you for your endorsement of

the role of the courts.

Both of those endorsements are significant. We appreciate them.

On section 206, let me ask you, Mr. Attorney General, about the

roving wiretaps issue. I understand that, under existing criminal

law, in addition to identifying the target and the location so that

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a court is satisfied to grant a roving wiretap, before the wiretap is

triggered that there must be an authentication that the person involved in the conversation is the subject of the authorized wiretap,

but that that requirement of authentication is not present in the

Act that we’re reviewing. Is that accurate?

Attorney General GONZALES. If I understand your question as to

whether or not there is an ascertainment requirement in the criminal context, my understanding, Senator, is that the ascertainment

requirement in the criminal context only applies or only is there

with respect to oral communications, like bugging. It does not exist

in a criminal context in connection with electronic surveillance.

And so I think that in that respect 206 would be consistent with

the current requirements in the criminal context.

Senator LEVIN. In terms of bugging, is it consistent?

Attorney General GONZALES. I do not—it’s my understanding

that with respect to oral communications there is an ascertainment

requirement in the criminal code.

Senator LEVIN. What about in the PATRIOT Act?

Attorney General GONZALES. There is no ascertainment requirement per se. But again, let me emphasize that we do have to show

probable cause as to two very important facts—No. 1, that the target is a foreign power or agent of a foreign power, and No. 2, probable cause that the facility or place which you’re targeting, that the

target is in fact using or about to use that facility.

Senator LEVIN. No, I got that. But why should there not be the

same ascertainment requirement in the PATRIOT Act that there is

in criminal law, just the way there is for electronic communications?

Attorney General GONZALES. I don’t believe that there is such a

similar requirement.

Senator LEVIN. Should there not be?

Attorney General GONZALES. I don’t know if I can answer that

question, Senator.

Senator LEVIN. Let me ask Director Mueller.

Is there any reason why we shouldn’t have that same ascertainment to protect privacy of American citizens to make sure that in

fact the ascertainment occurs, to make sure that it’s not somebody

who should not be the subject who in fact is being bugged?

Director MUELLER. I would have to go and check the statute

more clearly, more carefully on that particular proviso and look at

the import.

I will say generally, though, that the FISA statute relates to

finding probable cause that we’re dealing with a foreign power and

we’re dealing and looking at and undertaking investigative techniques of a foreign power or an agent of a foreign power. And that,

in my mind, is a different set of concerns than one would have

when we are investigating individuals for their possible breaking

of the criminal laws.

There are a number of areas that are different because of the different subjects we’re looking at under the FISA statute than those

subjects we’re looking at under Title III of the criminal statutes.

Senator LEVIN. My time’s up. So why don’t you just expand for

the record, after reviewing the law, as to whether we should not

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have that same ascertainment requirement for the bugging as we

do in criminal law when it comes to the PATRIOT Act?

Thank you.

Chairman ROBERTS. Senator Wyden. Let’s try Senator Mikulski.

OPENING STATEMENT OF HON. BARBARA A. MIKULSKI

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

good morning to our panelists.

I think we all remember what it was like in October 2001 after

America had been attacked and we knew that 19—or maybe even

more—people had come into our own country and had planned the

most despicable and dastardly deeds against us. And out of that

came the PATRIOT Act, because we knew we needed to get more

information and that we had old rules based on old thinking about

old technology.

So out of this came the PATRIOT Act, but yet the great idea of

sunset, because I think we were all concerned that in our zeal to

protect the country we would not be overzealous and then create

a set of rules we either found dysfunctional or not in keeping with

our Constitution. So I think this is why this debate is important

now.

Let me get to my questions.

There are a lot of concerns, as you know, among the American

people about jealously guarding their right of privacy. There’s a

built-in tension between the right of privacy and our national security. This is what we’re trying to resolve—how to protect both.

One of the questions that people have when they talk to me is

they think anybody in the Federal Government, under the PATRIOT Act, can now spy on them. So I’m going to ask a series of

questions, and perhaps, Mr. Gonzales, you can answer this.

No. 1: What agencies within the Federal Government can,’’spy’’

or place American citizens under surveillance—Federal agencies?

Attorney General GONZALES. I mean, the FBI. The Department

of Justice is the agency that has——

Senator MIKULSKI. So can the CIA spy on the American people?

Attorney General GONZALES. The primary responsibility falls

upon the Department of Justice, not the CIA.

Senator MIKULSKI. Can the CIA spy on the American—I’ll get to

another question about the so-called wall.

Attorney General GONZALES. No.

Senator MIKULSKI. Can the National Security Agency, the great

electronic snooper, spy on the American people?

Attorney General GONZALES. There are limits upon the NSA in

terms of what they can do in spying upon the American people.

Let me just emphasize one additional thing, Senator. Even with

respect to the authorities that are granted, many of the

authorities——

Senator MIKULSKI. These are not hostile questions.

Attorney General GONZALES. No. And I understand——

Senator MIKULSKI. These are clarifying. Clarify after I ask my

next question.

Then let’s go to the wall that Mr. Goss talked about in his written statement. That was the whole issue. And then it goes into the

information sharing that Director Mueller talked about.

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Everybody’s working together; let’s say it’s in the Counterterrorism

Center. The NSA picks up something—say a foreign agent.

They’re a person of interest, even a person of suspicion. They’re

coming into the United States. They’re mingling with people who

are already in the United States. They’re communicating. NSA has

picked all of this up. They’re following these people with their computer, their cell phone, whatever techno stuff they have.

Then when they’re there, do they stop and hand it over to the

FBI, and the FBI keeps on doing it? Or do they keep on following

these persons of interest or suspicion? And what are they allowed

to do under the law?

Attorney General GONZALES. Well, they are always——

Senator MIKULSKI. And clarify anything you want. But see, these

are the questions, which is, who does what, when?

Attorney General GONZALES. There are minimization requirements under law on Federal agencies that engage in surveillance

to ensure that the privacy interests of all Americans are protected.

In addition to requirements under the statute, there are additional

guidelines within the Department of Justice to ensure that the privacy interests of Americans are protected.

Senator MIKULSKI. Well, Mr. Mueller, how would this work from

a practical standpoint? Do you see what I’m getting at? Because

people really worry that everybody can spy on them—the DOD, et

cetera—and that they can come in carte blanche.

Director MUELLER. Surveillance of American citizens for national

security matters is in the hands generally of the FBI. The investigation or development of intelligence overseas is in the hands of

the CIA and NSA. And I would say generally they are not allowed

to spy or to gather information on American citizens, but there are

limited exceptions to that. Depending on the type of investigation,

there would be, thanks to the PATRIOT Act and additional rulings

of the FISA court, we would now have the ability to share the information that may have been, pursuant to its authorities, obtained

by the NSA, maybe overseas, maybe between somebody overseas

and somebody in the United States, or obtained by the CIA overseas, and now be able to use it in the United States.

Senator MIKULSKI. Did you need the PATRIOT Act to be able to

do that?

Director MUELLER. The PATRIOT Act and changes to the FISA

statute—not changes to the FISA statute, but a reinterpretation of

the FISA statute by the FISA appellate court in order to do that,

yes.

Senator MIKULSKI. And had those changes not occurred, would

you or your agents have felt shackled in some way or discouraged

from pursuing certain things?

Director MUELLER. Absolutely. I think if you look at the—go back

and read the report of the 9/11 commission, it was well pointed out

there the constraints under which we were operating prior to September 11 that stymied, cutoff the flow of information between the

agencies whose responsibility is protecting the security within the

United States and those agencies whose responsibility of protecting

the security of the United States outside the United States. And

the PATRIOT Act and the interpretation of the FISA statute has

broken down that wall.

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Senator MIKULSKI. Mr. Gonzales, you wanted to clarify, and then

I have another question I just want to put in, which is, has the PATRIOT Act had any constitutional challenges directed at it through

the court system? And have any parts of the PATRIOT Act been

struck down as unconstitutional?

Attorney General GONZALES. The only clarification I wanted to

make, Senator, was to repeat one thing that Director Mueller said

in his opening statement. And that is, of course, that many of the

authorities exercised by the Federal Government in the area of surveillance are done oftentimes under the supervision of a Federal

judge, and also that there are strong minimization requirements

imposed by statute and by regulation to protect the privacy interests of Americans.

There have been numerous challenges to the PATRIOT Act, and

to my knowledge they have all withstood challenge—successful

challenges in the courts.

Senator MIKULSKI. Mr. Chairman, I think I’ll wait for my next

round of questions to go to another set. Thank you.

Chairman ROBERTS. The questions you had were follow-on questions, which is why the Chairman thought it would be perhaps a

good thing to let you get to the end of that chain of questions in

regards to the understandability of the answers and the questions.

But we will have a second round.

Senator MIKULSKI. Well, and, Mr. Chairman, I think some of

those questions, knowing the colleagues before us, have to almost

go into a closed session to get more detail and get more of the mechanics of how it works and so on that, again, we have privacy concerns here.

But I appreciate the answers.

Chairman ROBERTS. Senator Snowe will be now recognized.

Let me point out the Committee did hold a closed hearing on the

use by the intelligence community field operatives in regard to the

tools provided by the PATRIOT Act. These same questions were

brought up at that particular time, and their responses were very

helpful in regards to the questions that the Senator has asked.

Senator Snowe.

OPENING STATEMENT OF HON. OLYMPIA S. SNOWE

Senator SNOWE. Thank you, Mr. Chairman. And I thank all of

you for being here today.

I think one of the fundamental issues surrounding the PATRIOT

Act as we consider its reauthorization is a lack of public reporting

with respect to the way in which it’s applied. And I’d really like

to hear from all of you, given your perspectives and the different

positions that you represent, as to how we could do a better job,

how you could do a better job in informing the public in which instances the PATRIOT Act is applied because I think so often now

what I hear from my constituents is a concern that it’s used for domestic investigations, that there is excessive secrecy with respect

to how it’s used.

And I think we need to have more public disclosure in examining

and assessing its impact. I think it would enhance the public’s confidence in the way in which this additional and broader authority

is being used.

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So could you give us some ideas as to how we could improve

upon the public reporting dimensions without compromising, obviously, valuable investigations concerning terrorists and terrorism?

Mr. Gonzales, proceed.

Attorney General GONZALES. Well, I agree with you. I think that

we have a responsibility to not only use these tools wisely, but to

reassure the American people that we’re using these tools wisely,

and to provide as much information as we can without compromising our ability to effectively deal with this threat, to do the best

we can to provide information not only to the Congress but to the

American people.

In the past few weeks we have tried to be more open about providing additional numbers about how many times these authorities

have been used. As you know, some of these provisions do impose

reporting requirements upon the Executive branch as to how these

authorities are being used.

I must tell you, Senator, based on my very short stint at the Department of Justice, there are a lot of folks at the department who

spend a great deal of time gathering up information to provide to

Congress. And I understand that sometimes it takes a little longer

than some Senators like. We want to be very careful. We want to

be very accurate in providing good information to the Congress.

And so there already is a lot of information that’s being provided

to the Congress. We provide reports twice a year regarding the use

of FISA, and I’m beginning to learn that sometimes some Members

of Congress don’t take advantage of the opportunity to review that

report, and they don’t understand what information is already

being provided to the Congress.

So we’re always happy to see what we can do more, but I would

just emphasize that I think there is a lot of information that is currently being shared about how these authorities are being used.

Senator SNOWE. You don’t think we should do anything further

than those additional reports? I mean, I think you provide them biannually.

Attorney General GONZALES. Senator, I’m happy to sit down with

you and your staff and consider additional ways that we could better educate the Congress and the American people. I’m happy to do

that.

I just want to—I don’t need to remind you, but there is in my

judgment a lot of information that is currently being provided already by the Executive branch.

Senator SNOWE. Well, somehow I think that we really have to do

a better job in conveying that to the American people so that it

doesn’t undermine the integrity of the process and how it’s being

applied, I think, in the final analysis, and its impact. I mean, we

understand to what extent you—you know, obviously, certain activities have to remain secret. We understand that. But on the

other hand, I think we have to go the extra mile whenever we can

to convey to the public that this is being used in the most appropriate way and we’re not encroaching on people’s civil liberties.

Attorney General GONZALES. I couldn’t agree more, Senator.

Senator SNOWE. Mr. Mueller.

Director MUELLER. Following up on what the Attorney General

said, the information that’s been provided I think should be helpful

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in allaying some of the concerns, particularly of individual groups,

about the abuse of the PATRIOT Act. For instance, the fact that

we have not used the PATRIOT Act 215 to obtain records from a

library should allay some of the concerns.

We have provided a great deal of information to Congress. I have

here a letter of October 24, 2003, to the Honorable Ted Stevens, as

chairman of the Committee on Appropriations. In it, it lists something like 15 instances where we’ve utilized the delayed notification in various of our cases, indicating how important that particular provision is and how it has not been abused.

Part of the problem that we have is the fact that to disclose our

successes, we have to do it in closed session. The closed session I

believe you had a couple of weeks ago, I believe was informative

in showing you exactly how we’re using those provisions, but to disclose much of that material would educate the terrorists, would

educate those whom we’re investigating. But my hope is that

through hearings such as this, continued scrutiny from Congress,

that much of the concern will be allayed.

Director GOSS. Senator, I have a great deal of empathy for your

question because I have participated from the situation you find

yourself in as responsible to a constituency. And I think it’s very

important that we reassure the constituency that we have safeguards in place in our government.

I certainly think that the Oversight Committee role is very, very

important in that. And I think, therefore, a frequent, very candid

exchange on matters of concern needs to be undertaken just to

make sure that we do assuage those concerns that might be out

there, so that people who are respected in their communities can

get up and say, I’ve examined this, I’m on top of this, and I can

understand your concerns, but I think everything is working OK

and, on balance, in fact, this is helping us catch terrorists or prevent terrorist acts from happening.

I think that is the system that we have embraced in our form

of representative government for dealing with these kinds of problems, and it’s one that I think does work pretty darn well, but I

certainly am aware of the balance problem.

I know right now that there are people who have terrorist concerns, terrorist thoughts, may be associated with terrorists, actually people maybe in terrorist organizations, who are probably

watching this discussion. I am very concerned that we understand

that in the audience these days, because of technology, we have not

only the people we’re trying to reassure and we want to go out

there and tell them how wisely we’re employing these tools, it

would be not helpful to tell the terrorists that.

There is a huge amount of denial and deception and cleverness

going on in the terrorist community, as loosely as it is organized.

But it is good. They are smart, clever people. They take benign

things like aircraft that we use to fly around for our commerce and

our comfort in this country and they turn them into weapons of

doom and tragedy. They can do that with other simple things that

we count on every day, like going to the store and buying aspirin

or things like that. It doesn’t take much imagination.

So I am very concerned that we draw a line with all the American people to understand we may have to be looking into things

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from time to time that terrorists are trying to take advantage of

and use against us, things that we consider benign in our daily life.

And those explanations have to be credible and they have to be accurate. And we need all the partners in our great enterprise to do

that, both legislative, executive, and I would add the media would

help too, if we could have accuracy in what’s actually going on.

I do think we have the things in place. The last thing any of us

want in the intelligence community—and again, we are overseas,

so I speak from that point of view—is a feeding frenzy over a poster child because we abused the authority. This authority is too important. We don’t want to lose it. We are very careful not to abuse

it.

Senator SNOWE. Thank you. Thank you, Mr. Chairman. Thank

you all.

Chairman ROBERTS. Senator Rockefeller. I’m sorry, Senator

Wyden is next, and he has returned.

OPENING STATEMENT OF HON. RON WYDEN

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

thank all of you for your cooperation.

I want to begin with you, Director Mueller, and also express my

thanks to you. You’ve always been responsive whenever I’ve called

and whenever I’ve had concerns, and I’m very appreciative of that.

I want to start with the library provision of the PATRIOT Act

and the debate about 215. You all constantly say there has never

been a case where you forced a library to turn over records. I’ve

heard that again and again and again. But my understanding is

that you get cooperation from libraries by using what you call—

these are your words, not mine—a ‘‘discreet inquiry’’ by a member

of the Bureau. And I’d like to know, No. 1, what a discreet inquiry

of a library is and, No. 2, how many of them have there been since

the PATRIOT Act? Because I constantly hear from my libraries,

you know, about this.

I think Porter Goss is absolutely right. We need to strike a balance here. We ought to be fighting terrorism ferociously without

gutting civil liberties. And I really want to get on top of this library

issue. So tell me what you mean when you say you get cooperation

from libraries through discreet inquiries.

Director MUELLER. Let me start off by saying that I have not, I

don’t believe, ever said that we have never forced libraries to give

records. We have never used 215 as a vehicle to get records from

libraries. In the past, in criminal investigations we have used

grand jury subpoenas. So I want to make certain that we’re clear

that I was talking about 215 we have not used to ask libraries to

provide records to us.

In terms of discreet inquiries, and I’m not certain of the context

in which I may have——

Senator WYDEN. You said it to the Judiciary Committee.

Director MUELLER [continuing]. Said that. But I think what was

in my mind is we’ve had a couple of occasions at least in which we

have been contacted by persons who believe that they have information that needs to come in the hands of the FBI, and these are

librarians. And in colloquy with these individuals, they’ve decided

to provide us records. Now, it may have been with some paper. But

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when I’m talking about discreet inquiries, it has been triggered—

in my mind it’s been triggered on those occasions by librarians

themselves that have come forward to us and said this is something you ought to look into.

Senator WYDEN. So, since the PATRIOT Act was enacted, there

has not been an increase in discreet inquiries that the department

has initiated with libraries?

Director MUELLER. Not to my knowledge, no.

Senator WYDEN. All right. Would you——

Director MUELLER. Now let me just make one——

Senator WYDEN. Would you check on that and give me the numbers with respect to times when the department initiated what you

all call this discreet inquiry?

Director MUELLER. Well, I wouldn’t put a tag on discreet inquiries. I may have used the word ‘‘discreet inquiries’’ to describe what

I believe were two situations in which librarians had come to us

and we had a colloquy with the librarians. It never got to the point

of 215s because the librarians believed we needed the information.

I would be happy to try to go back and look at the number of

occasions where we have utilized—we have not used 215—the

number of occasions that we have utilized process on libraries. But

it would be very difficult for me to go back and say, ‘‘OK, when has

one of our agents talked to a librarian?’’

Senator WYDEN. I understand. I think you get my point as well.

These librarians are very fearful. They’re patriotic Americans. They

want to assist their government and at the same time, like the rest

of us, they’re concerned about fishing expeditions. And I want to

make sure I understand what these issues are all about. And why

don’t we say I intend to go into this more in the closed session as

well to make sure I’m on top of that.

Director MUELLER. Can I make one last point in this regard?

Senator WYDEN. Of course.

Director MUELLER. I am quite certain that had we engaged in

fishing expeditions with libraries that it would have come—attention would have been brought to that fishing expedition by either

the librarian society or the ACLU. And we have not had brought

to our attention an abuse of our role in interacting with libraries.

Senator WYDEN. Director, what I’m concerned about is that it

may not be getting to that point because essentially people show

up from the Bureau, ask these kinds of questions, and these librarians say, ‘‘Look, we don’t want to be seen as disloyal; we’re just

going to cooperate.’’ I want to know more about this. I’m not making any allegations here. All I know is I saw you say the words

‘‘discreet inquiry,’’ and I’m hearing from these librarians. I want to

get on top of this.

Question for you, if I might ask, General Gonzales. You said that

there had not been an instance where a court has found any abuses

under the PATRIOT Act. Are you aware of Doe v. Ashcroft? That

was the case where the Federal judge struck down the authority

for National Security Letters for customer records of communication service providers which had been expanded by the PATRIOT

Act.

Now the court held that the government had failed to provide

any explicit right for a recipient to challenge the letter, a search

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order, and that violated the Fourth Amendment, and that the automatic secrecy rule violated the First Amendment, and the department has appealed the decision to the 2nd Circuit. Are you aware

of that, or——

Attorney General GONZALES. I am generally aware of that case.

You are correct; the courts had indicated that there were problems

under the First and Fourth Amendment, even though the Department of Justice conceded that this request by the government could

be disclosed and could in fact be challenged in the courts. Nonetheless, the court chose to disregard our concession and issue its ruling.

My understanding of that case, Senator, is that the court specifically, though, focused on a provision that predated the PATRIOT

Act, and that was the provision that was in fact struck down. And

it did not reflect a decision by a Federal judge to strike down a particular provision created by the PATRIOT Act. But I will confirm

that and get back to you.

Senator WYDEN. Why not require a judge to approve these National Security Letters? I mean, that could be done electronically,

it could be done quickly. My concern about these National Security

Letters is that there would be a way to strike the balance that Porter Goss has talked about, a view that I share, relatively simply—

that, you know, you could have judges approve the National Security Letters electronically and quickly. I’m concerned that a lot of

these recipients aren’t given notice of their right to challenge

search orders. And it would seem to me that this would be something consistent with this balance that we’ve been talking about

that we could do.

Do you have any concern about what I’ve just described?

Attorney General GONZALES. My understanding, Senator, with

respect to the use of National Security Letters, I mean, one of the

benefits of it is speed. There may be instances where you need to

get them so quickly that you might lose valuable information if, in

fact, you have to track down a Federal judge.

I would also emphasize that the use of National Security Letters

is limited to certain types of entities that you can gather information from, and it’s limited as to certain types of information you

can try to get under National Security Letters.

Senator WYDEN. Well, again, what is hard for us to address here

is that we’re to some extent doing oversight in the dark. We are

trying to figure out how to strike this balance. Director Mueller

and I are going to talk a bit more in closed session about the library provisions.

The Department of Justice is required to report to this Committee on the use of National Security Letters by the FBI. We

haven’t gotten the report for 2004. We haven’t gotten it. So that

makes it hard for us to do oversight, which is why Members of this

Committee show up and ask these questions.

So I hope that all of you will work with us on this because in

an area like this, National Security Letter, I sort of operate under

the Ronald Reagan theory, ‘‘trust but verify.’’ And what I do know

is that we haven’t gotten the report that was supposed to be filed

on these National Security Letters, so we come here and ask these

questions.

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And if we have a second round, Mr. Chairman, I’ll ask some

more. Thank you.

Chairman ROBERTS. Senator Rockefeller.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman.

This is a specific question about FISA orders for business

records, ‘‘any tangible things.’’ In 215 in the PATRIOT Act it authorizes FISA orders issued by the FISA court for ‘‘any tangible

things’’ from any entity. Under section 215 the government only

needs to make, with respect to terrorism investigations, a showing

that the records in question are for ‘‘an authorized international

terrorism investigation.’’ In your joint statement you indicated that

the department would support an amendment that requires that

the records be ‘‘relevant’’ to a national security investigation.

Section 215 also provides that no person shall disclose to any

other person that the FBI has sought or obtained records except for

persons necessary to producing, obviously, the records. In your

statement you indicated that the department would support an

amendment that the recipient of a section 215 order may consult

with an attorney and may challenge the order in court. The questions I have are twofold.

Would you support limiting the scope of section 215 to those

records for which there was at least some specific information for

believing that the records related to a suspected terrorist or other

agent of a foreign power, No. 1, yes/no?

Secondly, your statement indicates that you support modification

of section 215 to give the recipient of the FISA order the right to

consult an attorney and to challenge the order in court. Do you

support the provisions of the SAFE Act that would require the government to show why nondisclosure is necessary and place a time

limit on a nondisclosure requirement? Why or why not?

Attorney General GONZALES. I think that the ‘‘relevant’’ standard

is the appropriate standard with respect to 215 business order requests. We have indicated that we believe that it is a relevant

standard. The words are not used in the statute, but we believe it

is implicit. But nonetheless, we would support making it clear that

the appropriate standard is a relevance standard.

I think to go above that to require a higher standard would make

the use of 215 sort of a dead letter. I don’t think investigators

would use 215.

We look at 215 orders as a search for—not a search, but a request for information, much like a grand jury subpoena, where the

standard there is also relevance. It’s part of the building block of

the case in order to get information to see whether or not there is

sufficient information to develop probable cause that would support

a search. And my own judgment is that if the standard were

changed, that 215 would no longer continue to be useful.

And I’m sorry, sir, I don’t remember the second part of your

question.

Vice Chairman ROCKEFELLER. That was the SAFE Act would require government to show why nondisclosure is necessary and

place a time limit on nondisclosure requirements.

Attorney General GONZALES. Well, I think in this case we’d be

talking about information that is classified. And it just sort of

turns the presumption on its head that classified information—the

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presumption is is that it would become public unless you showed

certain things. I mean, it is classified information, and I think

there’s a reason it is classified information and should remain classified information.

Vice Chairman ROCKEFELLER. Well, then help me understand.

You would say, then, that a nondisclosure requirement is not desirable?

Attorney General GONZALES. I would not support it. I mean, I

think we all understand that these investigations involve very sensitive matters. Talking about in the FISA context, this is the most

sensitive information. And to disclose information to a target or

someone who’s not a target of an investigation but someone who

then shares the information unknowingly to the target may jeopardize a very important, serious investigation. And so we would

have concerns about such a requirement.

Vice Chairman ROCKEFELLER. OK. One more. This is on ‘‘significant purpose,’’ about those requirements.

Section 218 of the PATRIOT Act amended the certification requirement of FISA such that the collection of foreign intelligence

must be ‘‘a significant purpose’’ of the surveillance or the search.

Prior to the PATRIOT Act, the certification requirement had to be

interpreted to require that foreign intelligence collection be, quote,

‘‘the primary purpose’’ of a surveillance or search. Section 218 has

been credited with ‘‘helping to bring down the wall separating intelligence agencies from law enforcement agencies.’’

Other provisions of the PATRIOT Act such as section 203 allow

information to flow from law enforcement officials to national security officials and to members of the intelligence community, as we

know.

The question is, in terms of protecting the United States from

another attack, what difference have these information-sharing

acts made, in your judgment? Second, can you describe the relative

use and importance of, first, a provision allowing the sharing of

criminal investigative information with intelligence officials, the

importance of that, and second, in the other direction, provisions

allowing the sharing of intelligence information with law enforcement agencies at a lower level?

Attorney General GONZALES. Well, I think it is probably one of

the most important aspects of the PATRIOT Act, provisions like

sections 218 and 203, which have made it clear for law enforcement

and the intelligence community that it is OK to share information.

And, as the 9/11 commission and the WMD commission, the reports

from those commissions, both indicated, part of the reasons for the

attack on September 11 and the problems we’ve had is the fact that

the government has been unwilling because of a perception that

they’re unable to share information. And section 218 and other provisions like 203 have made it clear that it’s OK to share information.

So, it’s very, very important. I think sharing of information, to

be successful in that, is so important in winning the war on terror.

Vice Chairman ROCKEFELLER. General, I’m in agreement with

that, but the question was, has it made a difference?

Attorney General GONZALES. It has made a difference. Yes, sir.

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Director MUELLER. If I could speak to that just for a second, it

has made a tremendous difference in our ability to conduct what

has been called by the 9/11 commission ‘‘transnational intelligence

investigations.’’ Terrorists operate, as we saw on September 11—

they developed their plans in Afghanistan; they habituate Hamburg, Germany; and launched their plans in the United States.

We’ve had a number of occasions since September 11 in which

we have discovered information in the course of criminal proceedings here that has been passed on to the CIA and enabled the

CIA to wrap up persons overseas with the help of their counterparts. That would not be possible without the provisions of the PATRIOT Act.

We had convicted yesterday, in Northern Virginia, an individual

by name of Tamimi, who in the wake of September 11 had encouraged a number of individuals to go to Pakistan to obtain training

in order to fight against the troops in Afghanistan. He was convicted as a result of the ability to share information that may have

come from the intelligence side of the house but can be used in the

criminal side of the house.

Last year, in the spring of last year, I believe it was, there was

an individual by the name of al-Hindi, who was arrested by the

British authorities. He is the individual who had undertaken surveillance of The Prudential and a number of financial institutions

in the United States. If we had not been able to look at some of

his co-conspirators, both criminally as well as from the intelligence

perspective, we would not have been successful in obtaining the

plea of a principal member here in the United States, nor would

we have been half as successful in coordinating and cooperating

with our counterparts overseas in terms of exchanging information

with them that enabled them to wrap up and prosecute al-Hindi.

One can talk about the successes due to breaking down the walls

for a good several hours. I’m sure you heard in the closed session

last week a number of instances where breaking down the wall by

the PATRIOT Act and the rulings of the FISA court has made a

tremendous difference in our ability to protect the American public.

Vice Chairman ROCKEFELLER. I happen to agree with that, and

I think it’s important that the public hear that clearly.

Chairman ROBERTS. Senator Levin.

Senator LEVIN. Thank you, Mr. Chairman.

Director Goss, I welcome—I think all of us do—your strong support for congressional oversight which you have made in your testimony. I think we’ve fallen short in Congress of carrying out those

responsibilities and I very much welcome your statement of support.

And, more importantly, I welcome your following through with

documents which you have supplied to me, which I have been waiting for from the former CIA Director for a year. You came to office,

said you would be cooperative. You have come through, followed

through with the actual documents I’ve been waiting for. I can only

say I wish the Department of Defense were as forthcoming with

documents as you have been, but I don’t expect you to comment on

that.

[Laughter.]

Senator LEVIN. Thank you.

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The money-laundering provisions in the PATRIOT Act. Title III

contains provisions that Congress enacted to strengthen our laws

against money laundering and terrorist financing. They’re not subject to sunset, but nonetheless we should be reviewing these provisions, whether they’re sunsetted or not, as you said, General. I

agree with that.

Have they been useful to you, the anti-money laundering provisions in the PATRIOT Act?

Attorney General GONZALES. I’m told that they’ve been very useful to the department. I don’t have specific examples. Perhaps Direct Mueller does. But money laundering and those kinds of

schemes to finance terrorist activities is so very important in our

ability to deal with this threat. Without financing, it’s very difficult

for terrorists to attack this country. But, to respond, yes, it’s been

very important.

Senator LEVIN. And, Director Mueller, have the provisions of the

PATRIOT Act relative to anti-money laundering in general been

useful to you, without getting into too many specifics because of the

time limit on our questions?

Director MUELLER. Yes. Let me just mention a couple of provisions that were incorporated in the PATRIOT Act that were tremendously important.

Money transmitting businesses, which have become a mechanism

for exchanging funds around the world, the PATRIOT Act gave us

provisions helping us to address those. The provisions relating to

treasuries, the rules and regulations with regard to banks, so that

banks, not only in the United States but around the world, adopt

‘‘know-your-customer’’ rules are tremendously important.

So just to mention two of those provisions, I’m sure we have

other examples from Treasury in which the ability to forfeit funds

in interbank accounts has been useful, but I’d have to get you details on that.

Senator LEVIN. That’s fine. That’s very helpful, thank you.

General, section 214 is the subject of the next question. You’ve

made reference to the fact that there’s got to be a certification of

the information that you seek authority to obtain being relevant to

an ongoing investigation. And my question is, do you think it is appropriate in that request for that judicial authority that the way

in which the information is expected to be relevant should be set

forth?

Attorney General GONZALES. Senator, I’m not sure I understand

your question.

Senator LEVIN. Well, you said that there’s a requirement in section 214 that when agencies install pen registers, tap and trace devices through FISA procedures, that there’s a requirement that you

allege, you certify, that what you are seeking authority to do is relevant to an ongoing counterterrorism or counterespionage investigation.

My question to you is, do you think it would unreasonable to require that you state in that request how it is relevant to your investigation—not just the conclusion that it is relevant, but how it

is relevant. If you could just give me a yes or no, or expand for the

record, I’d appreciate it.

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Attorney General GONZALES. Senator, it’s hard for me to plead

ignorance, but it may be the fact that we do have to explain how

it’s done. I don’t know that.

Senator LEVIN. If not, I would hope you would consider supporting an amendment to the statute which would require that you

state how it’s relevant, if it’s not already required. Could you give

us that for the record?

Attorney General GONZALES. I will look at that.

Senator LEVIN. Now, in section 215, we’ve got a situation where

the application—this is on the records we’ve been talking about, including library records—the application to the court goes, as I understand it, to the institution, the business, or whatever. Is that

correct?

Attorney General GONZALES. No, it’s the order. The application

goes to the court and then an order is issued, and then we seek

the records pursuant to that order.

Senator LEVIN. To an institution or an entity?

Attorney General GONZALES. The entity holding the record that

is being pursued.

Senator LEVIN. My question is, do you think it’s reasonable that

when the entity is ordered to provide records, that the specific target of the investigation be the subject of the records being sought

rather than a general ‘‘we want all your records’’ relating to some

subject? Is there any reason why the law should not require you,

if you’re not already required, to identify whose records it is that

you seek and that it is not an American’s record, and that the

records are not connected to First Amendment rights?

Attorney General GONZALES. Well, there is, of course, a requirement under 215 that the information sought is relevant to an intelligence investigation.

Senator LEVIN. Right.

Attorney General GONZALES. I worry about the additional requirement that you have suggested. I’d have to look at it, but I’d

worry about going beyond what’s already within 215.

Senator LEVIN. All right.

Director MUELLER. Can I add something on that? I would be opposed to that.

Senator LEVIN. All right.

Director MUELLER. I think the court should review the application. The court issues the order. If it’s overly broad, the court can

make a finding and require additional information. There will be

occasions where to, as you say, specify in the order the individual

who is the target of the investigation where that would be akin to

alerting the person and risking the investigation as a whole.

Senator LEVIN. How would that be alerting the person?

Director MUELLER. Well, if it goes to an institution, the institution can well turn around and alert the person if they know a particular target. There may be circumstances where we look for discreet groups of records. In those records may be records we want

on a particular target or targets. And I believe we ought to have

the ability and capability to present to the judge the circumstances

where we want a broader order for those records from a particular

institution.

Senator LEVIN. Thank you. Thank you, Mr. Chairman.

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Chairman ROBERTS. Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

I want to follow up on an area that Senator Levin was touching

on and see if I can go at it a different way, and I’ll do this with

you, Director Mueller.

The PATRIOT Act, of course, eliminated, with respect to the National Security Letters and the FISA warrants, the requirement

that you meet what was called the specific articulable fact test.

And what was put in place was a requirement that when you want

records, it has to be relevant to an open investigation. That’s, I

think, where we are in terms of the law.

What I am interested in knowing is, what is necessary at this

point, Director Mueller, to initiate an investigation within the FBI?

Director MUELLER. Well, it can be an allegation. It could be information provided to us by another agency, and we will generally

open what’s called a preliminary investigation. And the preliminary investigation enables us to do some limited work in terms of

verifying the information, following up on the information before

we can go to a full investigation. And the full investigation enables

us to use a variety of additional tools.

So it is a staged development of information where we have to

make a showing in our files of what is warranting the use of additional investigative techniques. It is based on predication. In other

words, the initial predication for opening an investigation can come

anywhere from an e-mail from an anonymous source saying that

somebody’s going to commit an attack in New York tomorrow, and

then we’ll do whatever is necessary to either corroborate that information or disprove that information.

Senator WYDEN. Is it fair to say then, Director, that this staged

development of information, as you describe it, is in fact the new

standard of proof for issuing a FISA warrant and a National Security Letter?

Director MUELLER. No.

Senator WYDEN. All right, then tell me why not, because you just

said that to initiate an investigation within the FBI, you can do it,

essentially, with an allegation. Then you said that there is this—

I guess you call it the process of proof, sort of a ladder kind of arrangement. And that, based on an absence of any other information, strikes me as something pretty close to the new standard of

proof, and I’m just trying to find out what the standard of proof is.

Director MUELLER. It’s not a standard of proof. The evaluation of

information has a number of purposes. One is, is it worth opening

a file? Is it worth documenting the allegation that’s come in? We

have a number of allegations that come in we don’t open a case on

because it may be an anonymous e-mail message that comes in to

our website. But for our practical purposes in terms of what we

need to do to further the investigation, we are limited at the preliminary stage to documenting and furthering——

Senator WYDEN. But what is the standard of proof, then?

Director MUELLER. There is no particular standard of proof. We

don’t have to prove to anybody. It’s not probable cause. It’s is there

information that leads us to believe—if you want to say, leads us

to believe—that further investigation is warranted in a particular

case?

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Senator WYDEN. I think that’s a pretty sweeping comment that

there really isn’t any standard of proof, that there isn’t any, to your

terminology, no particular standard of proof.

And I’m going to want to follow up with you on this, Director,

because I think we used to have one. It was, you know, the specific,

articulable fact requirement. Then we said that it’s got to be relevant to an open investigation. Then you told me you can do an investigation on the basis of an allegation. I’d like now to know what

the standard of proof is for these warrants and National Security

Letters, and you said there really isn’t any particular standard.

Director MUELLER. Well, there’s a standard for issuance of a

grand jury subpoena, for instance: it’s relevance. There’s a standard for issuance of a National Security Letter. In order to get a

particular process there is a standard. But for us to conduct investigations internally, we don’t have to meet any particular standard

of proof. What I’m saying is, this is the process we have adopted

over the years to assure that we have predication for each step of

an investigation.

Senator WYDEN. With all due respect, Mr. Director, as I’ve said,

you’ve worked very well with me. This is not what we’ve done over

the years. Over the years, we had this specific articulable fact

standard. We don’t have it anymore, and that’s why I’m pursuing

this.

Director MUELLER. Happy to pursue with it you, Senator.

Senator WYDEN. Good. I want to ask this. Could I ask an additional question? Are we on the third round?

Chairman ROBERTS. Well, of course.

Senator WYDEN. Third round, or do you want me to proceed now,

Mr. Chairman?

Chairman ROBERTS. No, right now.

Senator WYDEN. Thank you.

I want to ask this of General Gonzales, and it involves the privacy and the Civil Liberties Oversight Board with respect to domestic intelligence. The Senate had a different view with respect

to how the board would work than ended up in the final law. And

the board, by the Senate version, would be in a position to issue

subpoenas. That’s not how the law came out.

I’m curious whether you would be supportive of a request, General Gonzales, from the board, to issue a subpoena? It seems to me

that if they, right from the get-go, don’t have that kind of authority, the kind of authority that was envisioned by the Senate, that

you limit some of their powers. And I’m just interested in how you

would view a request from them.

Attorney General GONZALES. Well, if we got such a request, then

obviously we would seriously consider it. But there are certain

standards that the department would feel would have to be met in

connection with the issuance of any subpoena. And simply because

this privacy board requested a subpoena, no one should walk away

from this hearing——

Senator WYDEN. If the privacy board met the constitutional

standards, what you’re telling me is you would not rule out giving

them a subpoena.

Attorney General GONZALES. If we believe that a subpoena

should be issued, we would issue a subpoena.

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Senator WYDEN. Very good.

One last question, if I might, for you, Director Goss, on an area

I think that involves a matter we both have a great interest in.

When you were here the last time, I asked about information

sharing between the Counterterrorism Center and various intelligence agencies. It was based on my understanding that while information can be shared among the analysts assigned to the terrorism center, analysts have to seek special approval to share this

information with their home agencies.

And this approval is required, despite the fact that there is this

finite number of people working on terrorism in the intelligence

community. All of them have a need to know, all are trained to

handle sensitive data on persons and foreign nationals. How do you

think this ought to be addressed? And since we talked about it a

bit the last time, I thought it made sense to follow it up.

I still think something along the lines of a special terrorism analyst, you know, program, so as to allow all the analysts access to

the same data would make sense. But since we talked about it the

last time, I just wanted to follow up and get your sense of where

we were.

Director GOSS. My sense of where we are is that we are beginning to work better as a team. I don’t think it’s what I would call

a finished product yet. I think it’s still a work in progress. Obviously, as you know, I want to be very circumspect in what I respond because Ambassador Negroponte has been given the responsibility for that in his role as DNI, and I no longer have those responsibilities. But when I left the ship, the direction was for more

sharing and more compatibility in systems so that the goals that

we both have ascribed to about getting information where you need

it, when you need it, to the right analyst, would be available.

I cannot assure you that’s going to be accomplished immediately.

There are still a lot of different systems involved, a lot of different

procedures, a lot of concerns about a need to know because needto-know still is a principle that comes into the business. The trick

is sharing with the people who need to know and not having a gratuitous release of information that could be harmful otherwise.

A lot of that is going to have to be worked out on a sort of experiential basis as we go along building the NCTC. We’re still a little

bit in the dark about what strategic planning actually will entail

in the NCTC. As I say, I’ve left those matters in very good hands

with Ambassador Negroponte and we’ve already had some conversations about some of the efforts that will be necessary out

there and that’s within the scope of what we’ve talked about.

Senator WYDEN. My concern is, and I’ll wrap up with this Mr.

Chairman, that the pre-9/11 set of walls has been replaced with a

new set of walls preventing information sharing. And, for the life

of me, when we have this limited number of people, all with the

need to know, all who are trained to handle sensitive data, it just

seems putting them through this kind of water torture exercise to

share information is pointless and doesn’t serve any of the interests

that you three have talked about.

I thank you very much, Mr. Chairman, for the extra time.

Chairman ROBERTS. Senator Levin.

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Senator LEVIN. Thank you, Mr. Chairman. I just have one additional question.

Sections 214 and 215 protect American citizens from being investigated, having their phone calls traced, who they’re calling, who’s

calling them, as well as having their records obtained ‘‘solely on the

basis of activities that are protected by the First Amendment.’’

So, you cannot be investigated as an American citizen under either 214 or 215 solely on that basis. That’s a word which is deeply

troubling to me because let’s say part of the motivation is your

First Amendment activities for being investigated. And I know this

isn’t your intent. I’m talking about what the law permits. I’m not

talking about what you in your practice do.

Why should we suggest in the law, in any way, that if an investigation of an American citizen is based significantly or partly on

their First Amendment activities that that would be OK? Or should

we?

Attorney General GONZALES. Well, I think that provision was included by Congress to provide additional protections for the lawful

activities of American citizens. But if American citizens are involved or have information or are in any way affiliated with terrorist activities, we should have the right to gather additional information through 214 and 215.

Senator LEVIN. Sure. But then the motivation is that participation. The motivation is not, even in part, their First Amendment

activities.

Attorney General GONZALES. That would be correct, as far as I’m

concerned.

Senator LEVIN. Yeah. Director.

Director MUELLER. Well, I mean, you can take Eric Rudolph, who

may claim First Amendment protection for his acts against abortion clinics. It may have some First Amendment motive—protected

beliefs. But the fact that he engaged in—we ought to be able to investigate an Eric Rudolph.

Senator LEVIN. Of course.

Director MUELLER. He can sit there and say, ‘‘Look, I’m against

abortion clinics, but that doesn’t mean he has a right to bomb

them.’’

Senator LEVIN. Of course.

Director MUELLER. And so, I think it makes some sense that we

cannot investigate someone solely on, but if they’re engaged in

someway in exercising their First Amendment rights but there is

the possibility or the actuality of violence, it makes some sense to

me, quite obviously, that we should.

Senator LEVIN. Of course. But the purpose of the investigation is

not to investigate his exercise of First Amendments rights, is it?

Director MUELLER. No.

Senator LEVIN. That’s what I’m driving at. And I think Americans are concerned about their rights. And we ought to be sensitive

to that and you indicate you want to be sensitive to that. We ought

to go after any acts of terrorism or support of acts of terrorism with

all of our might. But we have to be very clear, as you were in your

testimony, I think, that we’re not after people for exercise of their

constitutional rights. We’re after them if they participate, encourVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00131 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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age, in any way contribute to terrorist acts in some knowing way.

Then we’re going to go after them with the full weight of the law.

But the word ‘‘solely’’ in there has been troubling to a lot of people. It is to me and I think you ought to give some thought to eliminating that suggestion that we’re not—our motivation is not to go

after people’s exercise of their rights, period. That’s not the motivation. It’s to go after any illegal activity.

Would you agree with that?

Attorney General GONZALES. I agree with that sir.

Director MUELLER. Yes.

Senator LEVIN. Thanks. Thank you, Mr. Chairman.

Chairman ROBERTS. Thank you, Senator. I have one question but

I’m going to opine. I don’t know if that’s a verb or not but I’ll use

it.

Attorney General Gonzales, we’re going to call you Jericho in

terms of these walls. And I noted the discussion of walls in your

written testimony. The views of your lawyers, including the lawyers in the Office of Intelligence Policy and Review, basically laid

the foundation for and ultimately constructed the walls between

law enforcement and intelligence officials which were then adopted

by the Foreign Intelligence Surveillance court.

Some would say that these views were overly cautious—and I’m

being generous. However, as the Foreign Intelligence Surveillance

court, in their view, made clear, these ‘‘walls’’ were not mandated

by the Constitution case law or the plain language of the FISA

statute. Now that’s an opinion upon which I do agree.

Nonetheless, my concern is with the current implementation of

FISA. General Hayden testified before this Committee. He indicated the problem was not really preventing NSA employees from

stepping over the line. It was getting NSA employees to even come

close to the line. It took the FBI and the DOJ more than 21⁄2 years

after the passage of the PATRIOT Act to obtain the first FISA

business record court order. We’ve gone over that.

And so the question that I was going to ask, but I’m just going

to make it as a statement, is hopefully your attorneys are not still

shying away from the line and hopefully they are doing what it

takes to fully use the tools we gave you in the PATRIOT Act.

Now the FISA has become one of the nation’s most important

tools in protecting national security and the Department of Justice,

as you know, plays a key role in supporting the intelligence community’s use of the Act. The OIPR is at the forefront of this support, whether submitting applications to the Foreign Intelligence

Surveillance court or reviewing the Attorney General-approved implementing guidelines. The attorneys at OIPR should be fully cognizant of the important role they play in the intelligence activities

of the United States. I think it’s extremely important that the

OIPR be considered and that they consider themselves to be a full

partner with the intelligence community.

The question I had was to you, sir, and for Director Mueller and

for Director Goss, do you agree with that statement? Let the record

show that you all three said yes.

[Laughter.]

Chairman ROBERTS. While we recognize the role that the OIPR

plays in ensuring the integrity of the process, too many times in

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this Committee’s oversight OIPR has shown itself—this is my

words, about 6 months ago during hearings—a rusty gate, if you

will, that prevents the full use of intelligence authorities. I think

OIPR should focus on enabling collection and ensuring compliance

with the applicable laws.

Now, Senator Wyden’s pointed out that we have not received

your required semi-annual reports—I’m talking to the Attorney

General—on the usage of National Security Letters for 2004 and

we’re here at the last of April. Mr. Gonzales, could you please look

into why we haven’t received those reports in a timely fashion? I

know you will do so, sir.

Finally, I have a copy of the letter from the Attorney General

which responds to a number of allegations from the ACLU about

the Patriot Act abuses. Without objection, I want to enter this letter in the record.

[The information referred to follows:]

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Chairman ROBERTS. That concludes the hearing, and we thank

you for your time.

[Whereupon, at 11:28 a.m., the Committee adjourned.]

(153)

PROPOSED CHANGES TO THE UNITING AND

STRENGTHENING AMERICA BY PROVIDING

APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT) ACT OF 2001

DAY THREE

TUESDAY, MAY 24, 2005

UNITED STATES SENATE,

SELECT COMMITTEE ON INTELLIGENCE,

Washington, DC.

The Committee met, pursuant to notice, at 9:41 a.m., in room

SD–106, Dirksen Senate Office Building, Hon. Pat Roberts (Chairman of the Committee) presiding.

Committee Members Present: Senators Roberts, Hatch, Bond,

Lott, Snowe, Chambliss, Rockefeller, Levin, Feinstein, Wyden and

Bayh.

OPENING STATEMENT OF HON. PAT ROBERTS

Chairman ROBERTS. The Committee will come to order. I apologize for the lateness of the arrival of the Chair. We are operating

under a 2-hour rule, which I think everybody understands.

This morning, the Senate Select Committee on Intelligence continues its series of hearings on the USA PATRIOT Act. Over the

past 4 weeks, the Committee has conducted three hearings—two

open and one closed—concerning the use and reauthorization of the

PATRIOT Act. Those hearings, our oversight activities, and the

Committees comprehensive classified analysis of Executive branch

activities under the Foreign Intelligence Surveillance Act form the

basis of our legislative actions.

The purpose of our hearing this morning is to receive testimony

on specific legislative proposals prior to the Committee’s mark-up

of PATRIOT Act legislation. This morning we will hear from two

distinguished panels. First, the Committee will hear from Ms. Valerie Caproni, the General Counsel of the Federal Bureau of Investigation.

Our second panel will consist of Mr. David Kris, a former Associate Deputy Attorney General in the Department of Justice; Mr.

Joe Onek, Senior Counsel and Director of the Liberty and Security

Initiative at the Constitution Project; Mr. Daniel Collins, also a

former Associate Deputy Attorney General and Chief Privacy Officer at the Department of Justice; and Mr. James Dempsey, Executive Director of the Center for Democracy and Technology.

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I want to thank you all and the Committee thanks you all for

being here today.

The Committee also has received the views of Professor Richard

Seamon of the University of Idaho College of Law with regard to

section 203 of the draft legislation. Without objection, Mr. Seamon’s

letter will be included in the record.

[The information referred to follows:]

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Chairman ROBERTS. Before recognizing the distinguished Vice

Chairman for any comments he might have, I want to comment

briefly on the draft bill we provided to our witnesses.

This draft bill does reflect, I think, a balanced approach, addressing both concerns about the use of existing authorities and identified gaps in investigative tools that are needed. The draft legislation accomplishes three simple goals.

First, it permanently authorizes nine intelligence-related provisions set to expire at the end of the year. I believe there is strong

bipartisan support for these provisions.

Second, it extends to national security investigators tools already

used in Federal criminal cases. It does not create new authority.

And, third, it addresses some of the concerns expressed by critics

of the PATRIOT Act by establishing new reporting requirements

and standards for use of certain tools under the Act.

Let me emphasize that the investigative tools that this bill extends to FBI national security investigators are the same tools that

have been used by Federal criminal investigators for years to access information relevant to their investigations. For example, the

mail cover provision is simply the statutory authorization of an authority which the FBI has had under Postal Service regulations for

30 years.

Additionally, the administrative subpoena provision is similar to

335 other legislatively enacted administrative subpoenas currently

being used by the Executive branch. Such administrative subpoenas have been upheld against Constitutional challenges for over

50 years.

In fact, the Secretary of Labor can use administrative subpoenas

to enforce the Fair Labor Standards Act. The Federal Maritime

Commission can issue administrative subpoenas to support its investigations. And Federal criminal investigators can use administrative subpoenas in health care fraud, child pornography, and also

any case dealing with drugs or narcotics.

Federal investigators, however, cannot use them to investigate

spies and international terrorists. The Secret Service can issue an

administrative subpoena to investigate threats against the President, but the President can not use an administrative subpoena to

investigate threats against America posed by terrorists and spies.

I have yet to hear any reasonable reason to deprive national security investigators of well-established and long-used investigative

tools. We expect the men and women of the FBI to protect us and

yet some advocate constraints that would tie their hands, I think

unnecessarily. I believe that national security investigators should

be able to use every Constitutional tool at their disposal to protect

the United States.

This is the Committee’s fourth hearing on the USA PATRIOT

Act this year. In prior hearings, the Committee has received testimony from panels of outside experts, law enforcement and intelligence officials who have used PATRIOT Act tools in the field, and

the Attorney General, the Director of the FBI, and the Director of

the CIA.

Moreover, with regard to the specific provisions that are being

discussed and considered by this Committee, we have tried to go

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tunity to be fully informed of the provisions included in the draft

legislation. Our General Counsel has briefed the Members’ designated staff and has been available to meet with any Member to

discuss any concern about any provision of the bill.

Additionally, last week, the Committee held a briefing for all

Members at which counsel from both sides of the aisle went

through the legislation and were available for questions.

Finally, at my direction, the Committee staff has worked very

diligently with those who have concerns about provisions in the bill

in an effort to resolve those concerns. As a result, the staff has

been able to reach a number of agreements that may be presented

at markup as amendments are considered or as part of a managers’

amendment.

More than 31⁄2 years have passed since enactment of the PATRIOT Act. Members of Congress have had ample opportunity to

inquire into the implementation of these authorities and to debate

and consider the reauthorization of the expiring provisions. While

fundamental differences will, no doubt, remain, I am committed to

working with any Member of this Committee in an effort to address

his or her concerns prior to markup.

At this time, I’d like to recognize the distinguished Vice Chairman, Senator Rockefeller, for any statement he would like to make.

Vice Chairman ROCKEFELLER. Thank you, Mr. Chairman, very

much, and I welcome our witnesses, all of them. I want to make

just a couple of comments to set my sense of the perspective of the

hearing.

We meet, obviously, to hear testimony on a draft bill, which

makes permanent certain PATRIOT Act authorities, and some of

them are amended and others are added, like the investigative

powers.

I support reauthorizing the PATRIOT Act and I am inclined to

support adding investigative authorities, but only if it can be

shown that these new authorities are necessary and would not infringe on the constitutional rights of Americans, which is a subjective subject.

I would like to identify several questions that the Committee, in

my opinion, must address and that I hope the witnesses will before

reporting the bill. The views of the witnesses, as I indicated, will

be greatly appreciated.

The first question concerns the renewal of expiring authorities.

In its May 18 letter to the Committee last week, the Department

of Justice quoted the President’s statement of earlier this year, in

which he said that ‘‘to protect the American people, the Congress

must promptly renew all provisions of the PATRIOT Act this year.’’

Congress, most certainly, will—to use the President’s word—

‘‘renew’’ all expiring provisions of the PATRIOT Act. In most cases,

I believe that Congress will do that by making those provisions

permanent. But should a new sunset date, such as in 4 years, be

set for a few expiring provisions, much as we did on earlier ones,

in order to ensure they are examined again before deciding whether they should be permanent? Does one go from zero to permanency

or does one put in a time of review?

For example, the draft bill contains proposals to amend the FISA

title on orders for business records and other tangible things. In

165

light of this, I think Congress extend rather than repeal the sunset

of Section 215 of the PATRIOT Act on FISA Court orders for

records and revisit this title in a few years to see how these amendments and others in the draft bill have worked out.

The second area I raise is the proposed changes to Section 215.

The Attorney General has told this Committee and the Judiciary

Committee that the Department of Justice is willing to support

amendments that clarify Section 215 of the PATRIOT Act on several points. One of those matters is judicial review.

The draft bill that you have is silent on judicial review of Section

215 orders for business records and other tangible things. There

are discussions within the Committee about an amendment to

carry out the Attorney General’s commitment.

I welcome the views of the witnesses about what is required to

make the review meaningful. It will be essential to have rules that

protect national security information. But should the statute also

ensure that the applicant has access to the nonclassified parts of

the Government’s case and argument or to declassified summaries

of classified information?

And what statutory language will be necessary to ensure that the

applicant is able to raise, and the Court has the authority to decide, all appropriate questions of privilege and unreasonableness?

The third area deserving careful attention, in my judgment, is

that of administrative subpoenas. The draft bill proposes to give to

the Director of the FBI, or designees down to special agents in

charge, the power to issue subpoenas for records in national security investigations. The Congress frequently grants subpoena authority to various agencies, boards, and officials who exercise economic or health and safety regulatory functions. This is not new.

On several recent occasions it has given subpoena authority to the

Attorney General in law enforcement circumstances. I am not

aware of any time in which Congress has given, directly to the FBI,

subpoena authority.

That doesn’t make it right or wrong, but I think that needs to

be thought about. I would like to know the views of the witnesses

on a number of questions as we consider providing this expanded

investigative authority:

What is the problem with the Department of Justice’s and the

FBI’s current authority? The FBI is able to obtain records through

National Security Letters, which are not subpoenas. If subpoenas

or orders for records are needed, the FBI is able to obtain them—

from the FISA Court or by way of grand jury subpoenas—through

the Department of Justice. Has the Department of Justice demonstrated to the Committee that any investigations have faltered,

even for one critical moment, because of the lack of administrative

subpoena authority? I don’t prejudge this; I raise this question for

discussion.

If additional authority is needed, does the draft bill provide the

right authority and the right protections?

As with judicial review of Section 215 orders, do the provisions

on judicial review provide subpoenaed parties with a fair opportunity, and provide courts with sufficient authority, to challenge

and prevent abuse?

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1 As called for in section 101 of the Committee’s draft legislation, the Department also supports making permanent section 204, which is essentially a technical amendment.

Finally, the Committee would benefit from the views of the witnesses on two other notable changes contained in the proposed legislation.

The draft bill calls for an amendment to the definition of foreign

intelligence information. The amendment has the potential to

change the scope of FISA surveillance, search, and record production authorities. The draft bill also would provide for a new title

in FISA on mail covers, an investigative power currently set forth

in regulations but not statute.

I will be interested in the views of our witnesses, and I thank

the Chairman.

Chairman ROBERTS. Our first witness is Ms. Valerie Caproni, the

General Counsel of the Federal Bureau of Investigation. Ms.

Caproni, please proceed.

[The prepared statement of Ms. Caproni follows:]

PREPARED STATEMENT OF VALERIE CAPRONI

Chairman Roberts, Vice Chaiiman Rockefeller, and Members of the Committee, it

is my pleasure to appear before you this morning to discuss legislation that would

reauthorize many important provisions of the USA PATRIOT Act and provide important new tools to national security investigators. Over the course of the last 7

weeks, the Department of Justice has made its case for why each one of the 16 USA

PATRIOT Act provisions scheduled to sunset at the end of 2005 must be made permanent. In numerous hearings as well as classified and unclassified briefings for

Members of Congress, we have explained how the Department has used those authorities contained in the USA PATRIOT Act to safeguard the safety and security

of the American people. Thanks to the Act, we have been able to identify terrorist

operatives, dismantle terrorist cells, disrupt terrorist plots, and capture terrorists

before they have been able to strike. Moreover, the record demonstrates that we

have done this while protecting the privacy rights and civil liberties of the American

people.

Many of the most important provisions of the USA PATRIOT Act, however, are

scheduled to sunset at the end of this year, and the Department therefore applauds

this Committee for taking up legislation that would make permanent those provisions of the Act falling under this Committee’s jurisdiction. We are also heartened

that this Committee has come forward with novel and worthwhile ideas for

strengthening the Department’s counterterrorism capabilities. Prior to this Committee’s April 27, 2005, oversight hearing on the USA PATRIOT Act, Attorney General

Gonzales and Director Mueller submitted detailed written testimony on utility of the

provisions of the Act that are scheduled to expire at the end of the year, and I will

not repeat that testimony today.

Rather, I will simply reiterate the Department’s strong support for making permanent those USA PATRIOT Act provisions covered by section 101 of this Committee’s

draft legislation: sections 203(b), 203(d), and 218, which toppled the wall separating

intelligence investigators from law enforcement investigators and have allowed vital

information sharing of immeasurable value in the war against terrorism; section

206, which provided national security investigators with the ability to obtain certain

court-approved roving surveillance orders that had previously been available exclusively to criminal investigators; section 207, which has increased the efficiency of

the Foreign Intelligence Surveillance Act (FISA) application process by lengthening

the maximum duration of FISA electronic surveillance and physical search orders

targeting certain non-United States persons; section 214, which allows national security investigators to utilize court-approved pen register or trap and trace devices

to obtain information relevant to international terrorism or espionage investigations; Section 215, which allows national security investigators to obtain court orders requesting the production of records relevant to international terrorism or espionage investigations; and section 225, which provides those individuals and companies assisting in the implementations of FISA surveillance orders the same legal immunity granted to those assisting in the implementation of criminal investigative

wiretaps.1

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The Department also supports making permanent section 6001(a) of the Intelligence Reform and Terrorism Prevention Act of 2004. This provision, which has

come to be known as the ‘‘Lone Wolf ’’ provision, allows the government to gain court

approval for FISA surveillance of a non-United States person when there is probable

cause to believe that he or she is engaged in or preparing to engage in international

terrorism, whether or not he or she is known to be affiliated with a larger terrorist

group. While this provision is currently scheduled to sunset at the end of this year,

unfortunately, the threat to the United States posed by known or apparent Lone

Wolf terrorists will not similarly cease on December 31, 2005. Therefore, the Department strongly endorses the enactment of section 102 of the Committee’s draft legislation, which would remove the sunset on the Lone Wolf provision.

Besides reauthorizing important counterterrorism authorities that are scheduled

to expire at the end of this year, the Committee’s draft legislation also contains

other vital provisions that will enhance the Department’s ability to safeguard the

American people from our Nation’s terrorist enemies. Section 216, for example,

would extend the maximum duration for certain FISA surveillance, search, and pen

register orders targeting non-United States persons, thus allowing the Department

to take resources currently devoted to the mechanics of repeatedly renewing FISA

applications in certain cases—which are considerable—and instead allow them to be

focused on other investigative activities as well as conducting additional oversight

of the use of intelligence collection authorities by the FBI. Indeed, as the Attorney

General testified before the Committee, the Department estimates that, had these

amendments been included in the USA PATRIOT Act, 25,000 attorney hours that

were devoted by personnel in the Department’s Office of Intelligence Policy and Review to processing FISA applications would already have been saved. That figure,

moreover, does not include the time that would have been saved by agents and attorneys at the FBI. The bipartisan WMD Commission recently agreed that many of

the changes contained in section 216 would allow the Department to focus its attention where it is most needed, and to ensure that adequate attention is given to cases

implicating the civil liberties of Americans. The Department therefore commends

the Committee for including this important provision in its draft legislation.

The Department also supports section 212 of the Committee’s draft legislation,

which relates the availability of mail covers in national security investigations. Mail

covers are concerned with recording information appearing on the outside of mail

and thus do not implicate the reasonable expectation of privacy that exists with respect to the contents of sealed mail. Notwithstanding the relatively non-intrusive

nature of mail covers, however, the ability to obtain the type of information they

provide promptly and effectively can be of great importance in the national security

context. For example, if there is information indicating that a person may be involved in terrorist or terrorism-support activities, information showing that he has

been in contact by mail with other persons who are known to be involved in international terrorism can be critical to advancing and determining the priority of the

investigation.

As part of reforms made by Congress following the attacks of September 11, 2001,

Congress has already acted to strengthen the legal procedures for obtaining comparable sender/receiver information in relation to electronic mail and telephone communications. Specifically, 18 U.S.C. § 2709 provides access to electronic communication transactional records and telephone toll billing records information, on certification by FBI officials at appropriately high supervisory levels that the information

is relevant to an authorized investigation to protect against international terrorism

or espionage. But there is no comparable statutory specification concerning national

security mail covers. The current standards governing their availability are defined

by United States Postal Service regulations, and the determination whether they

will be conducted in particular cases ultimately depends on decisions by Postal Service personnel.

The FBI is, however, in the best position to assess whether investigative activity

is needed in particular circumstances to protect against international terrorism or

espionage, and whether the use of a mail cover is warranted in the context of such

an investigation. As noted, Congress has recognized this point in relation to the corresponding information for electronic mail in existing statutory provisions. Section

212 would simply extend the same principle and similar procedures to information

observable on the outside of physical mail and would thus enable the FBI to carry

out more effectively its central mission of protecting Americans from terrorist attacks.

The Department also welcomes section 213 of the Committee’s draft legislation,

which responds to the President’s call to provide for administrative subpoena authority in terrorism investigations. In combating terrorism, prevention is key: we

cannot wait to disrupt terrorist acts or to prosecute terrorist crimes after they occur.

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To stay a step ahead of the terrorists, investigators need tools allowing them to obtain relevant infollnation as quickly as possible.

An administrative subpoena is one such tool. An administrative subpoena is a request from a government official instructing the recipient to provide information relevant to the investigation. This type of subpoena authority would allow investigators to obtain relevant information quickly in terrorism investigations, where time

is often of the essence.

Like any subpoena, administrative subpoenas are subject to judicial review. If a

recipient refuses to comply with a request for the production of records, investigators may not simply seize those records; rather, they are required to ask a court

to enforce it. Furthermore, recipients of administrative subpoenas need not wait for

investigators to go to court. Instead, they may file their own challenges to the legality of the subpoena. But for those recipients who wish to assist investigators, administrative subpoenas provide a mechanism allowing them to quickly turn over relevant records while at the same time shielding themselves from civil liability.

The constitutionality of such subpoenas is well established, and executive branch

agencies now have the authority to issue administrative subpoenas in more than

300 other areas. Such subpoenas, for example, may be issued by the Appalachian

Regional Commission, Chemical Standard and Hazard Investigation Board, Commodity Futures Trading Commission, Consumer Product Safety Commission, and

Corporation for National Community Service, just to name those departments and

agencies whose names begin with a letter from A to C. These subpoenas are not,

however, currently available in terrorism investigations, even though the consequences of a terrorist attack could be far more severe than those of the many

other areas in which Congress has permitted the use of administrative subpoenas.

Simply put, the Department believes that terrorism investigators should have at

least the same investigative tools currently available to the Department in investigations ranging from health care fraud to child abuse. In 2001, for example, the

Department issued 2,102 administrative subpoenas in Federal health care investigations and 1,783 in child abuse and exploitation investigations. Administrative subpoenas are a time-tested tool, and the Department looks forward to working with

the Members of the Committee on this important proposal.

Before concluding my testimony, three other provisions in the Committee’s draft

legislation deserve mention. First, as the Attorney General recently disclosed, the

Department has recently obtained Section 215 orders from the FISA Court to obtain

subscriber information related to phone numbers captured through court-approved

FISA pen register devices, just as such information is routinely obtained in criminal

investigations through 18 U.S.C. § 2703(d) or a grand jury subpoena. Section 215 of

the Committee’s draft legislation, however, would allow the Department to instead

obtain this information simply through a pen register order issued by the FISA

Court. The Department believes that this proposal would reduce unnecessary paperwork and increase the efficiency of the FISA application process without impacting

the privacy or civil liberties of the American people, and the Department is eager

to work with the Committee on this initiative.

Second, the Department supports section 214 of the Committee’s draft legislation,

which would simplify reporting requirements under section 108 of FISA. And third,

the Department backs the amendment to FISA’s definition of the term ‘‘agent of a

foreign power’’ contained in section 201 of the draft legislation.

In closing, the Department welcomes the Committee’s effort to reauthorize critical

intelligence tools contained in the USA PATRIOT Act and to provide terrorism investigators with additional tools necessary to protect the safety and security of the

American people. We look forward to working with you closely as this bill makes

its way through legislative process, and I would be happy to answer any questions

you may have.

STATEMENT OF VALERIE CAPRONI, GENERAL COUNSEL,

FEDERAL BUREAU OF INVESTIGATION

Ms. CAPRONI. Chairman Roberts, Vice Chairman Rockefeller,

members of the Committee, it’s my pleasure to appear before you

this morning to discuss legislation that would reauthorize many

important provisions of the USA PATRIOT Act and provide important new tools to national security investigators.

Over the course of the last 7 weeks the Department of Justice

has made its case for why each one of the 16 USA PATRIOT Act

provisions scheduled to sunset at the end of 2005 should be made

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permanent. I know that time is short this morning, so I will keep

my oral statement very brief, since written testimony has been submitted.

The Department applauds this Committee for taking up legislation that would make permanent those provisions of the PATRIOT

Act that fall under this Committee’s jurisdiction, as well as the

Lone Wolf provision enacted in section 6001(a) of the Intelligence

Reform and Terrorism Prevention Act of 2004.

We are also heartened that this Committee has taken the time

during these hearings to gain a good understanding of how the authorities provided for in the PATRIOT Act work in real life. Additionally, you have advanced new ideas for strengthening the Department’s counterterrorism capabilities, for which we are appreciative.

We look forward to working with you closely on this bill as it

makes its way through the legislative process, and I would be

happy to answer any questions that you may have this morning.

Chairman ROBERTS. Members will be recognized for 5 minutes in

order of their appearance.

Ms. Caproni, in June 2004, before the Senate Judiciary Committee, Principal Deputy Attorney General Rachel Brand said

this—and I’m quoting.

‘‘In combating terrorism, prevention is key. It is not good enough to prosecute

terrorist crimes after they occur. For the law enforcement officers, responsibility

for staying a step ahead of the terrorists in these investigations, time is very

critical. Even a brief delay can be disastrous.’’

Obviously everybody on this committee understands that.

‘‘These officers need tools that allow them to obtain information and act as

quickly as possible. Administrative subpoenas are the one tool that will enable

investigators to avoid any costly delays.’’

Ms. Caproni, is there any real question in regard to the constitutionality of administrative subpoenas?

Ms. CAPRONI. As a general matter, Chairman, no, there’s no

question that administrative subpoenas as an instrument are constitutional. The key is that there needs to be the opportunity for

meaningful judicial review. So long as there is an opportunity for

meaningful judicial review, the courts have typically upheld the administrative subpoena power.

Chairman ROBERTS. We need some examples, if you will. Can

you give us some examples of how the FBI might use an administrative subpoena in an international terrorist investigation?

Ms. CAPRONI. Sure. I’ll give you two. One actually happened and

the other would be a hypothetical, and I think the one that actually

happened has been discussed previously in hearings.

But shortly after 9/11, investigators were attempting to run down

all leads, and one of their leads took them to a hotel somewhere—

I think it was in Virginia. They wanted and needed, in connection

with the investigation, records of who was staying at the hotel on

a particular night. The hotel was not being cooperative. I’m not

criticizing the hotel, but they were not being cooperative in this regard.

At that point, they didn’t have an AUSA available to issue a

grand jury subpoena, and even if they had, there wasn’t a grand

jury sitting the next day that the records could be returned to.

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That would be an example where an administrative subpoena

would have been an excellent tool in order to get the hotel to provide the records that the investigators needed.

To use a hypothetical example, suppose that the investigators are

aware of a particular individual and they have information that the

person is about to do something bad—commit a terrorist act. And

through the course of their investigation they know that this person has an EZ Pass device on their car, but they don’t know where

the person is right now.

One set of documents that we would want to investigate would

be the records of the EZ Pass device, because that may well give

us a very good lead as to where the car is and where the car is

going. We could use an administrative subpoena to the EZ Pass organization in order to get those records and to get them very quickly for purposes of our investigation.

So those are just two examples. I could probably sit here and

come up with lots of hypothetical examples of where the need to

get a record quickly exists and where needing to go to an AUSA

to get a grand jury subpoena may not be the best way to go, and

where an NSL is not available. In neither the EZ Pass sample nor

the hotel example is an NSL an available tool.

And then the other alternative would be to go for a 215 order,

and that is not going to be done in a matter of hours.

Chairman ROBERTS. Now, when Mrs. Brand testified regarding

terrorism, she said we know that terrorism may be the No. 1 threat

facing the nation, but espionage certainly remains a serious concern of the FBI. My question is, would the ability to use a constitutionally valid administrative subpoena in espionage investigations

also provide the same kind of timely access that you are asking for

to this kind of very crucial information?

Ms. CAPRONI. Administrative subpoenas are always going to be

able to provide us with quick access to information. It at least is

a tool that we can use to serve on the party that holds the records.

It may not get us the records because there could be resistance, but

it is at least the tool to start the process for getting the records.

As this Committee knows probably beyond all other committees

in Congress, certainly in the Senate, espionage cases are extremely

important. Through our history we have seen incredible damage

done to the national security through espionage, both by virtue of

our assets overseas being compromised as well as secrets that we

hold within the government being compromised to other countries.

And for those reasons espionage cases are extremely important.

So anything that we can do in order to get records in connection

with those investigations quickly is important to the FBI.

Chairman ROBERTS. I have one other observation, but in the interest of time and with my time running out, I recognize Senator

Rockefeller.

Vice Chairman ROCKEFELLER. I’m going to continue a little bit on

the same track but put it differently. Do you have any examples

of where FBI investigations in fact faltered even for a moment because of the lack of administrative subpoena authority? Can you

give an example?

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Ms. CAPRONI. I think the example with the hotel was one where

it faltered for a while. We ultimately were able to get the records,

and in that case it did not result in harm to the national security.

But it could have. And that’s the problem with a lot of these

tools; is we need the records, we need them quickly. Can we show

you that because we didn’t get the record a bomb went off? We cannot.

Vice Chairman ROCKEFELLER. And was that a period of several

hours?

Ms. CAPRONI. I think it was several hours; that’s correct.

Vice Chairman ROCKEFELLER. That can make a difference.

Ms. CAPRONI. It certainly can make a difference. It doesn’t always, but it certainly can make a difference.

Vice Chairman ROCKEFELLER. Again, how many statutes—and, if

you can, name some of them—confer administrative subpoena authority on the FBI Director.

Ms. CAPRONI. There are a number of them. The ones that immediately come to mind and the ones that are probably used most

often are the ones that provide administrative subpoena in narcotics cases and administrative subpoenas in health care fraud and

child pornography cases. Those are the ones that are used the

most.

Vice Chairman ROCKEFELLER. And that we’ve discussed in the

committee. I thank you for that.

The draft bill provides for administrative subpoenas for records.

It does not provide to administrative subpoenas for testimony. Does

the administration agree that the administrative subpoena authority should be limited to records and should not include testimony?

Ms. CAPRONI. I think we’re prepared to discuss that. I think as

a realistic matter during the course of national security investigations and terrorism investigations the likelihood for needing testimony is low. Whether it’s nonexistent, I’m not prepared to say that.

But it is unlikely.

Again, the real need for speed typically resolves around the need

for documents. If the FBI agents need to talk to someone, they will

make efforts to talk to them. If they need to compel them to come

forward, which an administrative subpoena for testimony would,

that would be a different issue. And up to now I have not heard

a lot of complaints that that’s what the agents need in order to further the investigation and they don’t have that authority.

Again, there’s always the possibility and the available, though

not immediately, to get a grand jury subpoena and to compel the

person to appear before the grand jury to provide testimony.

Vice Chairman ROCKEFELLER. I’m right, aren’t I, in suggesting

that National Security Letters do not have anything attached to

them that gets you a subpoena?

Ms. CAPRONI. That’s correct. The National Security Letter is a

request for documents.

Vice Chairman ROCKEFELLER. So it would have to be the administrative subpoena authority or else it wouldn’t work.

Ms. CAPRONI. To get the documents through compulsion, the administrative subpoena compels the party who receives the subpoena to provide us with the documents. The National Security

Letter requests the documents.

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Vice Chairman ROCKEFELLER. My final question is, what current

problems exist for the FBI and the Postal Service in the requesting,

receiving and carrying out of mail cover authorities, and how would

establishing these authorities in statute rectify those problems?

Ms. CAPRONI. I don’t want to say that there are problems between us and the Postal Service. We have a long history with the

Postal Service which is a warm and cooperative relationship. Postal

Inspectors sit on the Joint Terrorism Task Forces and we work

very well together with the postal authorities.

However, the current regime for mail covers, as you’ve noted, is

a regulatory regime. And under the current regs the requirement

is that a request for a national security mail cover has to come

from a high FBI headquarters official, and there are a limited number of individuals within the Postal Inspection Service that are

then authorized to actually execute the mail cover.

Further, as it is written, it gives to the Postal Service discretion

to decide whether or not to actually execute the mail cover. As a

philosophical or jurisprudential matter, it is odd, to say the least,

that the FBI is the agency that is charged with protecting the

country from terrorist attacks and from spies, and yet our ability

to use this very basic tool of a mail cover is charged to the discretion of another agency.

Vice Chairman ROCKEFELLER. Thank you. In my remaining 14

seconds, in the last year how many National Security Letter requests have not been complied with, that you can think of?

Ms. CAPRONI. Well, one ended up in litigation, and that National

Security Letter has not been complied with.

Vice Chairman ROCKEFELLER. So one?

Ms. CAPRONI. I know of one. I do not know the number of how

many have not been complied with. I know that there are times

when we have less than quick compliance from the party on whom

have served the National Security Letter on.

Vice Chairman ROCKEFELLER. I thank you, and I thank the

Chairman.

Chairman ROBERTS. So basically your answer is that it is more

subjective in terms of the time required. I don’t know as we could

put a criteria on that in terms of a timeframe, but you might want

to get back to the committee with a further statement on that, as

opposed to a particular incident or the number from the timeframe.

Of course you already spoke to that prior to that, but it might be

a little difficult to say 6 or 7 of 27, for that matter, in regards to

the time.

Ms. CAPRONI. We will try to get the Committee information in

terms of the speed with which we get compliance with National Security Letters.

Chairman ROBERTS. I think that would be helpful to Senator

Rockefeller’s question.

Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

Mr. Chairman, first a little bit of business. I would hope, Mr.

Chairman, that Thursday’s markup would be held in an open session. It seems to me that there is so much that we have to do in

closed session because of the implications for national security that

that’s appropriate, but I don’t think that’s the case here.

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I think this is a matter of great public concern, and I just wanted

to weigh in and say I hope that Thursday’s session can be done in

public.

Also, Mr. Chairman, we still have not heard from the FBI on the

matter of the so-called discrete inquiries that are made of libraries.

I’ve asked for this information more than a month ago, and it certainly causes me to wonder exactly how many of these so-called

discrete inquiries are made. And I’ve been told that we can’t even

get a timetable when the department will get us that information.

I just want to say I remain concerned on it.

Chairman ROBERTS. Well, as the Senator knows, we are backing

him up on his questions for the record, and I will take his suggestion for an open meeting under advisement.

We have had now three open meetings, but I intend to ask questions, event-oriented, that deal with classified information from the

intelligence community on how the PATRIOT Act actually works.

So we’re going to have to go through that and make a determination. My off-the-cuff commentary is that that might be very difficult

to do.

But I thank the Senator for his suggestion and he is recognized

for 5 minutes.

Senator WYDEN. I thank the Chair for his thoughtfulness, and I

do appreciate your consideration.

It seems to me, Ms. Caproni, the heart of your case is that you

feel that it is now time to intertwine the criminal justice system

and the intelligence system. In effect, what’s used for criminal investigations should be used for foreign intelligence operations. And

you are certainly blurring the lines here in a way that concerns me.

Foreign intelligence investigations have to be much more secretive. They don’t require evidence that a crime has been committed.

They are broader. Tell me what the argument is for making this

dramatic shift now in public policy and sort of intertwining these

two areas the way you do and essentially giving us the argument

that what you use in a criminal investigation now should be used

in a foreign intelligence investigation.

Ms. CAPRONI. Senator, I think I have a couple of different answers to that. First off, I don’t think there’s ever been a bright line

nor should there have ever been a bright line between criminal on

the one side and foreign intelligence/national security investigations on the other side. That to some extent, as the FISA Court of

Review said, is a false dichotomy.

The reality is that many of the things that we investigate as foreign intelligence matters are also criminal conduct. Furthermore,

individuals who are agents of a foreign power commit crimes. So

there is inevitably a cross-over between the two notions of a foreign

intelligence investigation and a criminal investigation.

The second relates to the use of tools. I don’t think we’re suggesting that there should be a cross-over of the tools. I think what

we’re suggesting is that administrative subpoena power has been

available in criminal investigations for a long time, and it’s available in lots of different sorts of criminal investigation. It is a great

tool for investigators. It has not supplanted other tools. The reality

is that grand jury subpoenas are still used in narcotics cases, in

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health care fraud cases, and in child pornography cases, though administrative subpoenas are also used in the same investigations.

Criminal investigators have the opportunity to decide what is the

best tool in this particular incident to get the materials that I need

for this investigation. It’s anomalous and odd that in national security investigations, where we’re trying to protect the national security of the country, that same tool and that same ability for the investigators to look at the situation and say what’s the best tool for

me to use here—is the best tool for me to use to walk down the

street to my friendly AUSA and say, ‘‘Hey, let’s open a grand jury

investigation on this,’’ or is the best tool to use is to come to headquarters and say we need a 215 order, or is another tool a better

tool.

We believe—and we have been saying this now for several

years—that an administrative subpoena is a tool that we need in

national security investigations.

Senator WYDEN. As I read the administrative subpoena proposal

that you’ve made, essentially without going to a judge, an FBI field

office head can basically go and ask anybody for anything, just asserting that it’s constitutional and relevant to an investigation. Tell

me how you would differ in terms of your assessment of it?

I mean, I can see somebody in a regional office showing up at a

hospital, saying I want all the records of the patients. The hospital

administrator could hand them over unless later on he wanted to

challenge it in court. Tell me where the checks are in this kind of

process.

Ms. CAPRONI. The checks, Senator, are the same checks that

exist in other processes.

Senator WYDEN. After the fact.

Ms. CAPRONI. Well, with an administrative subpoena the check

is both after the fact from a judicial standpoint but there is a before-the-fact check as well, which is agents are bound by the Attorney General guidelines in conducting their investigations. There is

an attorney in every field office in this country who is responsible

for making sure that agents don’t go off on wild tears.

To legislate, respectfully, from the position of some agent somewhere may screw up is not how we would like to see you legislate.

We put checks in place. There are judicial checks in place. This

committee exercises oversight and gets to see how the FBI uses the

tools that we have been provided.

We believe that from an internal perspective it would be—I can

assure you that the Director would have some harsh words for the

SAC who authorized an agent to serve an administrative subpoena

for all records of a hospital in connection with a national security

investigation. I’m not saying it’s not possible that that would be the

correct way to go, but I can assure you that we would have wanted

to hear about it at headquarters and talked through those issues.

So I think that from the standpoint of the FBI as an organization

that is steeped in the need to comply with the Constitution, we

need to respect the privacy rights of individuals, I don’t think an

administrative subpoena from this standpoint for those investigations is any more subject to abuse than the administrative subpoenas in the other fields where we have the ability to serve administrative subpoenas.

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Senator WYDEN. Thank you, Mr. Chairman.

Chairman ROBERTS. Senator Bond.

Senator BOND. Thank you, Mr. Chairman.

Ms. Caproni, I agree with you that certainly while narcotics violations, health care fraud and child pornography are critically important issues, national security should at least be treated with the

same degree of power for the FBI agents.

You have said that the agents are bound by the Attorney General’s guidelines and if somebody screws up there will be harsh

words. Now I’m not sure harsh words will satisfy people. What

other remedies are offending agents, who get off the reservation,

likely to face and what is the sanction against some agent who may

go on an unwarrantedly broad fishing expedition?

Ms. CAPRONI. Well, again I think in the first instance we try to

prevent those unwarranted fishing expeditions.

Senator BOND. Right.

Ms. CAPRONI. Along those lines, though, to the extent we gathered up a bunch of information on individuals that had nothing to

do with the national security investigation, that information would

be clamped down. It wouldn’t be generally available to the agents

to simply go pawing through.

An agent who intentionally engages in misconduct is subject to

discipline. They are subject to being investigated. They are subject

to being suspended and being fired if they intentionally engage in

misconduct during the course of an investigation.

Senator BOND. That’s the point I wanted to raise.

With respect to administrative procedures, you’ve touched on it.

Can you go through for us the other safeguards that are in place

to protect affected U.S. citizens and legal aliens in the issuance?

What are the panoply of protections to safeguard their constitutional rights?

Ms. CAPRONI. We’ll start with the way the bill works right now.

An administrative subpoena would have to be authorized by the

special agent in charge of the individual office. That means, as a

practical matter, it has to come up the chain of the FBI within the

field office, which means that an attorney would look at it, and

they would review it to determine whether or not it is in compliance with the Attorney General guidelines for national security investigations. That would be the first check.

The second check would be on the individual who receives the

subpoena. A hospital who receives a subpoena for all of their health

records is likely to move to quash it.

Senator BOND. So there is a judicial remedy before they comply?

They do have access to the courts to challenge the subpoena if the

recipient of the subpoena views it as unduly broad?

Ms. CAPRONI. Correct. Under the bill that this Committee is considering, the recipient could move to quash or move to modify.

Senator BOND. How frequently does that happen in other settings? In what percentage of the cases are those administrative

subpoenas which the FBI is now empowered to issue challenged in

court and what is the success rate of the challenge?

Ms. CAPRONI. Senator, I don’t have those statistics, but it is a

rare motion to quash. But that’s not surprising. Motions to quash

grand jury subpoenas are also rare. The reality is, these tools are

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typically served on third party custodians. They will move to quash

if you are going to shut them down in order for them to comply

with the subpoena.

But as a general matter, investigators narrowly tailor their requests. Investigators don’t like to have to paw through lots of irrelevant documents. So with a narrowly tailored request to a third

party document custodian, the percentage of custodians who move

to quash is very low.

Senator BOND. Do they succeed very often?

Ms. CAPRONI. Generally not.

Senator BOND. All right. You have mentioned the hotel example.

Are there other examples that you can tell us in an open hearing

or are there examples that you can describe to us in a closed hearing where the enhanced authorities, the broader enhanced authorities, would have been useful in the post-9/11 terrorist investigation? Any other things that come to mind or are there things that

you can share with us with a different setting?

Ms. CAPRONI. I don’t think there are any others that I can share

in this setting. Certainly any time the materials that we need were

stuff that was not available through a National Security Letter, so

that we had to resort to other tools, any of those examples would

be good examples of where an administrative subpoena would have

been helpful.

Senator BOND. And we may have the opportunity to learn more

about that in another setting.

Just very quickly, the modification in Title II, section 211, the

addition of the explicit relevance requirement, how could that enhance your authorities?

Ms. CAPRONI. Senator, I don’t think it enhances our authority,

but it certainly clarifies the law in a way that some have objected

to. So we would support the notion of clarifying that the standard

to be used in a 215 order is that the materials are relevant to a

national security investigation.

Senator BOND. Thank you, Mr. Chairman.

Chairman ROBERTS. Senator Feinstein.

Senator FEINSTEIN. Thanks very much, Mr. Chairman.

I’d ask that my full statement be incorporated in the record.

Chairman ROBERTS. Without objection, it is so order.

Senator FEINSTEIN. Thank you, Mr. Chairman.

[The prepared statement of Senator Feinstein follows:]

PREPARED STATEMENT OF HON. DIANNE FEINSTEIN

I thank you for holding this open hearing to discuss the Committee’s draft legislation to reauthorize and amend the PATRIOT Act and to provide the executive

branch with new authorities to use in the war on terror. It would be my preference

to hold our mark-up on this legislation in an open forum as well and urge you to

consider that course of action.

The PATRIOT Act was enacted just 45 days after the September 11, 2001 attacks

after less than 1 month of Congressional debate. Congress moved quickly to provide

new tools for prosecuting the war on terror, fearing that more attacks might come

at any moment. As a safeguard, we built in a mechanism to force review and reconsideration of several sunset provisions.

After careful review on this Committee and on the Judiciary Committee, I am now

prepared to support the reauthorization of the intelligence-related PATRIOT Act

provisions. In reaching this position, I have reviewed both the implementation of the

authorities by the Department of Justice and the FBI and the allegations of misuse.

I have found that the implementation has been reasonable in scope and tailored to

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the needs of our intelligence and law enforcement communities. Some have stated

that it is only because of the sunsets placed in the PATRIOT Act that the FBI has

tread lightly for now, and that abuses are more likely to occur in the future. For

this reason, continued Congressional oversight will remain critically important.

I also support several provisions included in Title II of today’s legislation, such

as the ones extending the duration of surveillance orders and reporting requirements to Congress in order to reduce bureaucratic hurdles at the Department of

Justice. It is my hope that this will allow Justice and FBI employees to spend more

time conducting intelligence investigations than passing papers through the bureaucracy. Perhaps that can be a first step in much larger changes that are needed

to turn the FBI into a true intelligence agency, and not a place recently described

by the Inspector General as one where professional analysts are treated like clerical

staff.

Finally, I support the legislation’s language to add protections to Section 215 of

the PATRIOT Act (the Business Records section). This section adds an explicit ‘‘relevance’’ standard to the law; provides useful relief from the nondisclosure provision

without risking intelligence operations; requires minimization procedures to protect

US Persons; and recognizes the sensitivity of library and bookseller records, gun

purchases, health information, and tax forms.

I thank you, Mr. Chairman, for including these changes to the Business Records

section. They respond to the concerns this committee has heard that the language

was too broad, but they won’t get in the way of conducting effective

counterterrorism investigations. I believe this is the model that the Congress should

follow: reviewing the implementation of existing law, addressing legitimate concerns, and reviewing requests for additional authorities.

In this light, I am concerned with two sections of this legislation and hope they

will be removed or modified at mark-up.

Section 203 adds criminal prosecution to the definition of foreign intelligence.

Supporters of this section say this language is necessary to remove forever the socalled ‘‘wall’’ between intelligence and law enforcement. In fact, this provision goes

much further than that. This language would, in effect, eliminate the much-needed

distinction between intelligence conducted under FISA and traditional law enforcement, by making law enforcement a subset of foreign intelligence.

We have heard time and time again that information sought for either intelligence

or law enforcement purposes have to be shared quickly and fully to the other. Removing the wall between the two, both when requesting investigative authorities

under FISA and in sharing information so gathered, was the most important

achievement of the PATRIOT Act, particularly under Section 203.

The Act, however, recognized that FISA needs to remain rooted in the intelligence

world and should not be used exclusively as a law enforcement tool. Intelligence is

a prospective effort where any information possibly available is collected and analyzed to enhance our understanding of possible future actions. Criminal prosecution

is, by definition, a backwards-looking action, where law enforcement seeks information in connection with one or more specific events. In hindsight, it is possible to

say what is and what is not relevant to an investigation. Despite arguments to the

contrary, there is no abiding reason why law enforcement and intelligence investigations should proceed under the same governing authorities. There is no need to

lump ‘‘criminal prosecution’’ into the definition of foreign intelligence as this legislation would do.

In 2001, Congress struggled with the right formulation to specifically allow intelligence and law enforcement personnel to be involved in the same investigation. To

that end, I worked with Attorney General Ashcroft to write the ‘‘significant standard’’ language, incorporated in the PATRIOT Act as Section 218. This language replaced the ‘‘primary standard’’ that the Justice Department had used in practice for

so long. The new standard allows the FBI to use FISA authorities for law enforcement, including prosecution, so long as there is a ‘‘significant’’ intelligence purpose

of the investigation. The FISA Court of Review commented on this specific point and

found that this language is the only thing stopping the FBI from pursuing FISA

warrants solely for law enforcement matters involving international terrorism. I believe this is a good thing, and thus oppose section 203 of today’s legislation, which

would remove this boundary between intelligence and law enforcement.

Since enactment of the ‘‘significant purpose’’ test I have heard not a single argument from either our law enforcement or intelligence elements that this fix did not

solve the problem. In fact, Attorney General Gonzales, in his April 5, 2005 remarks

on the Patriot Act had this to say about the current law: ‘‘Section 218 of the Act,

in particular, helped to tear down the ‘‘wall’’ by eliminating the ‘‘primary purpose’’

requirement under FISA and replacing it with a ‘‘significant purpose’’ test. Under

section 218, the Department may now conduct FISA surveillance or searches if forVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00181 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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eign-intelligence gathering is a ‘‘significant purpose’’ of the surveillance or search.

As a result, courts no longer need to compare the relative weight of the ‘‘foreign intelligence’’ and ‘‘law enforcement’’ purposes of a proposed surveillance or search and

determine which is the primary purpose; they simply need to determine whether a

significant purpose of the surveillance is to obtain foreign intelligence. The consequence is that intelligence and law enforcement personnel may share information

much more freely without fear that such coordination will undermine the Department’s ability to continue to gain authorization for surveillance under FISA.’’

I note that in its recent statement on the pending legislation, the Department of

Justice supported several provisions, but provided no support for this section.

Second, I am troubled by the addition of administrative subpoenas in this legislation. I want to make clear that I am not opposed to providing the FBI and the rest

of the Intelligence Community with new tools. But we should do so only where there

is a clear and compelling need and suitable checks on investigative authority.

To be sure, the Bush Administration has requested administrative subpoena authority for counterterrorism many times. But that request has been for subpoena

authority for the law enforcement side of the FBI, not under FISA. In fact, Director

Mueller has repeatedly told me, and the Judiciary Committee, that his highest priority legislation was a Title 18 administrative subpoena for terrorism cases. I have

heard no similar requests, and certainly neither the Director of Central Intelligence

or his successor, the Director of National Intelligence, for this remarkable expansion

of the intelligence powers granted to the FBI.

It is one thing to have administrative subpoena in the criminal or regulatory context—in fact, supporters of the criminal administrative subpoena have often argued

that there are more than 300 other such subpoena now authorized by law. It is entirely different to add a sweeping new power to the intelligence arsenal.

Let me be clear—if this provision is passed into law, all of our discussion about

Section 215 will be rendered superfluous, as the administrative subpoena—with no

judicial supervision of its issuance—would replace the FISA business records. When

the Attorney General recently told this Committee that he supported adding the

‘‘relevance’’ language to Section 215, I cannot imagine that he took this position

with the knowledge or expectation that we would soon pass a separate law making

Section 215 obsolete.

Section 213 of this bill would allow FBI officials at the field office level the authority to subpoena any ‘‘records or other materials that are relevant to an authorized

investigation. . . .’’ This authority could be delegated to a Special Agent in Charge,

with no prior approvals from any subordinate to the Attorney General, from any

court, or even by a prosecutor as is done under a grand jury subpoena arrangement.

The only case where such a sweeping authority could be justified is where a field

agent needs intelligence information so quickly that a FISA Court order, National

Security Letter, or grand jury subpoena were impossible to obtain. Yet this legislation does not limit the use of administrative subpoenas to such exigent circumstances. Indeed, as I have said, this authority would have the effect of making

FISA business records requests obsolete.

The idea of replacing the most controversial authority in the PATRIOT Act with

one that doesn’t even contain prior approval and can be used in basically any national security investigation is not responsible lawmaking. I urge that this committee use the mark-up to address some of these concerns.

Senator FEINSTEIN. Thank you, Mr. Chairman. The reason is because I express my concern with two sections. One of them is what

is happening today on the administrative subpoena. And I’d like to

speak as a member of the Judiciary Committee.

We had a hearing last year in my subcommittee, Technology and

Terrorism, on Senator Kyl’s bill. At that time Mr. Mueller asked

for an administrative subpoena under Title 18, a criminal administrative subpoena, not under Title 50. As I understand it, the FBI

has always maintained that the Title 18 criminal subpoena, not a

FISA administrative subpoena, was its top legislative priority in

this area. Am I correct?

Ms. CAPRONI. Senator, I believe the FBI’s priority is for an administrative subpoena. The issue of whether it’s under Title 50 or

Title 18 I have not personally discussed with Director Mueller, but

I believe we would like administrative subpoena authority.

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Senator FEINSTEIN. Well, let me just say that’s my recollection as

a member of the Judiciary Committee, that it has always been

Title 18. And I’m very concerned about this, so I just want to say

I’m drafting an amendment which would replace section 213 of

Senator Roberts’ bill with a provision to give the FBI the criminal

administrative subpoena authority it requested, with two limitations. The first is a requirement that the FBI only use this new

power in circumstances for which it is needed, where there are

emergency circumstances which prevent the use of existing mechanisms, such as the one you just described, and the existing mechanism, of course, would be a grand jury subpoena.

And second, a requirement that a Department of Justice Assistant U.S. Attorney sign off on this subpoena, perhaps only via telephone, but at least there is some check and balance on the use of

that subpoena.

I’d like you to take that back to the FBI. I’d like to get an opinion

of it. But I’m very concerned. This is the first time I have ever

heard the request for a Title 50 administrative subpoena, and if

there is such a request anywhere in writing by the FBI, I’d like to

have it, if I might.

Ms. CAPRONI. Senator, again the FBI has been very consistent

that we would like administrative subpoena authority. The issue of

whether it’s in Title 18 or Title 50 I don’t express any opinion on.

I am prepared to address the issue of whether there should be

an emergency requirement or the requirement of an AUSA signoff

on it.

Senator FEINSTEIN. If you would, that would be great.

Ms. CAPRONI. As you know, those requirements do not exist in

any other administrative subpoena that we currently have. And the

reality is that—again to go back to my answer I believe to Senator

Wyden—it’s anomalous to have different standards that are applied

when the FBI is conducting national security investigations, the

most important investigations that we conduct, that are not

present in routine criminal investigations.

In terms of an AUSA signoff, I love AUSAs—some of my best

friends are AUSAs, I’m a former AUSA. So I’m not denigrating

AUSAs. They are great people. However, it seems to me that asking for an AUSA to sign off takes us back to the world where the

answer to terrorism was criminal prosecution. That’s how you need

to think. You need to think about criminal prosecution. I think it

subtly sends the message to the agents who are conducting these

investigations that a criminal prosecution is necessarily part of the

answer here.

Again, AUSAs are great people, but it’s sort of like going to a

surgeon for a tummy ache. They’re going to take out your appendix. They cut. AUSAs prosecute.

Senator FEINSTEIN. My time is almost up. Let me just indicate,

Mr. Chairman, what my concern is.

This is a very broad power. When used directly, the individual

would know about it. In this case, they would have no recourse to

court. If it’s used in a secondary way, not affecting the individual,

such as you go to somewhere to collect data that the individual

would not know, there really is no check on the power.

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So you’re really giving this subpoena carte blanche to go out on

any kind of fishing expedition, with no necessary stricture that determines exactly how it can be used. And that’s why I think some

form of signoff, just as judges are duty judges and they sign off on

certain things, it seems to me that the U.S. Attorney should provide that kind of a signoff, just as a guarantee. Because this is a

new area.

Chairman ROBERTS. I thank the Senator for her views. We are

under a rather strict time limit.

Senator Hagel.

Senator HAGEL. Mr. Chairman, thank you.

Ms. Caproni, as you have noted generally this morning, administrative subpoenas have been used and are being used. And I’d like

to ask a question regarding how the administrative subpoena function in the PATRIOT Act differs, if it does, from what the FBI has

used in the past regarding using the administrative subpoenas for

drug enforcement.

Ms. CAPRONI. I’m sorry, you mean the administrative subpoena

proposal that’s in this bill?

Senator HAGEL. Yes, is there a difference? Would there be a difference?

Ms. CAPRONI. I think it would work essentially the same way, depending on how it gets delegated down into the field.

Senator HAGEL. How far down into the field—special agent in

charge? Do you think that’s appropriate, to push it down that far?

Ms. CAPRONI. Yes, I think it is appropriate to push it down that

far, and in fact, if it wasn’t pushed down to the special agents in

charge of the field offices, its benefit to the Bureau will be limited.

The advantage of having it pushed to the field office level is that

you have, one, a high-level FBI agent, the special agent in charge,

who has to sign off on it. So you have accountability and you have

someone who’s charged with running an office and is a member of

the senior executive service. They have come a long way within the

Bureau and they are charged with making sure that we conduct

our investigations appropriately.

If it’s not delegated down to the special agent in charge and everybody has to come back to headquarters, that again will slow

things down and it will make the tool not nearly as effective to the

agent in the field as it is in the other sorts of investigations—

again, narcotics, health care and child pornography.

Senator HAGEL. In order to issue these subpoenas, the desired information must be relevant to the investigation. Can you explain

why the relevance standard is particularly appropriate in regard to

the subpoenas that we’re talking about today and how that works?

What are the limitations and difficulties you’ve had in the past, in

drug enforcement, for example?

Ms. CAPRONI. Well, in drug enforcement that would be the same

standard. Are the materials that you’re seeking relevant to the investigation you are conducting? Relevance is a standard that

agents understand. They are taught from the time they come into

Quantico that they need evidence that is relevant, that it tends to

prove something that’s important to the investigation. So it’s a concept that’s familiar to them.

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In certain prior provisions that were modified as part of the PATRIOT Act there was a higher standard that had to be met for certain tools. National Security Letters, for example. It used to be that

you had to show specific and articulable facts that the records were

relevant to an agent of a foreign power. That essentially meant

that you needed to know where you were going before you got the

basic tools to determine whether or not the person was an agent

of a foreign power.

The PATRIOT Act reduced that to a relevance standard across

all the tools, which we think is appropriate. Again, it’s a standard

that everyone understands. It means that you cannot simply go on

a wild fishing expedition for matters that have nothing to do with

the investigation that you’re conducting.

Senator HAGEL. If I could go back to a general question on administrative subpoenas, you have provided this Committee here in

the last few minutes with some specific examples of uses.

Focus on the potential use of this administrative subpoena for

dealing with terrorists. Give the Committee a couple of examples

of how you could see this would be particularly important in dealing with terrorists.

Ms. CAPRONI. The example I started with would be, we know the

terrorist or we believe the terrorist is about to do something bad.

We don’t know exactly where he is. We want his Easy Pass records.

That would be a record that is not obtainable by an NSL and to

get it through a 215 order would require coming to Washington,

writing up fairly detailed papers in order to get it.

Senator HAGEL. So timeliness would be one dynamic of this.

Ms. CAPRONI. Timeliness is a huge dynamic. I think the other dynamic is that as investigators work there is something to be said

about being able to stand in front of the person, ask for the records.

When the person says no, either I can’t give them to you or I won’t

give them to you, to be able to come back promptly and say here’s

the instrument that requires you to give them to me, if you still

don’t want to give them to me, you have to go to court.

But that dynamic of being able to keep the investigation moving

forward and get the documents and the materials that the investigator needs to continue the investigation are important. Those are

important aspects of an administrative subpoena.

Senator HAGEL. Mr. Chairman, thank you.

Chairman ROBERTS. Senator Hatch.

Senator HATCH. Well, thank you, Mr. Chairman. Welcome to the

Committee. We’re happy to have you here again, and we appreciate

the testimony you give because of your experience and background,

just to mention a few things.

Now, as I understand it, as one who worked very strongly on the

PATRIOT Act, it’s been used very efficiently and well by the FBI,

the Justice Department and other law enforcement personnel in

protecting us ever since 9/11. Isn’t it true that before the PATRIOT

Act we were not up to speed with regard to the laws regarding

international terrorism?

Ms. CAPRONI. Senator, it’s certainly the case that there were

many of our tools that were used in national security investigations

that had not been updated to recognize the reality of a world where

Internet communication was a very common way that individuals

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communicate, that tradecraft required agents of foreign powers to

move and change telephones very quickly. Those sorts of tools were

definitely in need of update, and the PATRIOT Act did that.

Senator HATCH. How many layers of FBI hierarchy look at the

use of administrative subpoenas before agents in the field use

them?

Ms. CAPRONI. If this bill passes, as it’s laid out, it would certainly

go from a line agent to a supervisor, probably to an assistant special agent in charge, through the chief division counsel, who is a

lawyer, to the special agent in charge.

Senator HATCH. So there are lots of checks.

Ms. CAPRONI. There are lots of checks.

Senator HATCH. A lot more checks then you have in general

anticrime laws where the administrative subpoena is in use, right?

Ms. CAPRONI. That’s correct. It is quite easy for an agent to issue

an administrative subpoena. Again, this bill requires it to go up to

the special agent in charge. And I would note that that is more review certainly in some offices than a grand jury subpoena gets.

When I was a brand new AUSA, I could issue a grand jury subpoena by reaching in my drawer and typing it up, and I was still

wet behind the ears.

Senator HATCH. In section 211 and 213 of the proposed bill there

are significant provisions for congressional oversight, including specific reporting for libraries, book sellers and others. Are there examples of terrorists using libraries for these activities?

Ms. CAPRONI. There are certainly examples of where spies have

used computers that are located within libraries in order to engage

in communication activities. I think we’ve probably provided another example of where an individual, who I guess could be considered a terrorist, posted a bomb threat on an FBI web site. That individual did that from a library computer.

So libraries are certainly used in the course of terrorist conduct.

Senator HATCH. And, of course, that illustration of the Unibomber is one that’s often used as well.

Ms. CAPRONI. That’s correct. The Unibomber, the book that he

received through his local library was certainly a valuable piece of

evidence tending to point to him as being the Unibomber during

the period of time when they were trying to put together a search

warrant.

Senator HATCH. So looking in libraries is not a relatively new

thing.

Ms. CAPRONI. It’s definitely not relatively new, but I would also

say that the FBI going to libraries to get records is an extremely

rare thing. It is not something we do every day. It is not common.

We’ve tried, in response to questions from this committee as well

as from other committees, to try to figure out how often and what

were the circumstances that we received materials from libraries.

I know Senator Wyden has an outstanding question for the record

concerning the FBI’s appearance in libraries to get materials.

We don’t track records that way. We don’t track conduct that

way, although if this bill was passed and we issue subpoenas to libraries it will certainly be something that we would have to keep

track of. But it’s not something that we do every day—very difVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00186 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ferent from a phone company or an ISP, where we regularly receive

records from them.

Senator HATCH. In fact, you’ve hardly used that power so far.

Ms. CAPRONI. The 215 power?

Senator HATCH. Right.

Ms. CAPRONI. That’s correct. The AG declassified the numbers,

and it was less than 40.

Senator HATCH. OK. I want the FBI to get the information they

need. I also want people to feel secure in conducting legal business

in the country. Now, how do you assure us that administrative subpoena powers will stay in check?

Ms. CAPRONI. Again, as this bill has set out, there are several

things that would keep this power in check. One is that we are still

bound by the Attorney General guidelines. The subpoenas can only

be issued if they are relevant to an investigation. The party receiving the subpoena, just like the recipient of any other administrative subpoena that the government has the power to issue, has the

power to go to court to move to quash it. That is, the ultimate

power lies in the hand of the recipient. So there’s the possibility of

judicial review.

This bill asks for extensive reporting of the use of it. So this committee and the other intelligence committee, if this bill passes,

would have the ability to provide oversight.

Senator HATCH. Thank you. Thank you, Mr. Chairman.

Chairman ROBERTS. Senator Levin.

Senator LEVIN. Thank you, Mr. Chairman.

You indicated in response to Senator Rockefeller that there was

only one case known to you where a National Security Letter was

challenged in court. Can you tell us approximately how many of

those NSLs have been issued? Is it in the hundreds a year?

Ms. CAPRONI. That number is classified; I’m sorry. It’s a classified number. It’s provided to this Committee as part of our regular

reporting.

Senator LEVIN. I see. But it’s not classified that you only know

of one that’s been challenged? That’s not classified?

Ms. CAPRONI. That case is a public case. It’s a public case. It’s

DOE versus Department of Justice or Ashcroft. I don’t remember.

Senator LEVIN. Are you able to tell us in an unclassified setting

whether the number of NSLs is in the hundreds or thousands a

year? Can you give us a range in a public setting?

Ms. CAPRONI. I can’t, but it is a very rare action to have an NSL

challenged.

Senator LEVIN. No. How many are issued is the question.

Ms. CAPRONI. I can’t give you that number in open session.

Senator LEVIN. Not even a range or an estimate? So we don’t

know if it’s a hundred, a thousand, ten thousand a year?

Ms. CAPRONI. I’m sorry. I’ll provide you the exact number in a

classified setting.

Senator LEVIN. No problem.

On the administrative subpoena issue, currently, as I understand

your testimony, there are three places where administrative subpoenas can be issued. Is that correct? There’s three areas—drug

enforcement——

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Ms. CAPRONI. I think there are like more than 300 different

types of administrative subpoenas. The ones that intersect most

commonly with the FBI are in narcotics, health care fraud and

child pornography cases. There are many other administrative subpoenas.

Senator LEVIN. And in those cases, in those three types of cases,

where there is common intersect, right now nobody below the agent

in charge, special agent in charge, inside the FBI can authorize it,

but there are people in the Justice Department that can authorize

it. Is that accurate, in those areas?

Ms. CAPRONI. I don’t think that’s accurate.

Senator LEVIN. Can anyone below a special agent in the FBI authorize it?

Ms. CAPRONI. I believe they can in narcotics cases and also in

child pornography cases. I’m not positive, but I believe they can.

Senator LEVIN. In the bill that you support, nobody below the

special agent in charge in the FBI could authorize it, or somebody

in the Justice Department; is that correct?

Ms. CAPRONI. That’s how this bill is written.

Senator LEVIN. Is that what you support?

Ms. CAPRONI. We support the notion of administrative subpoenas.

Senator LEVIN. I got that, but do you support authorizing people

below the special agent in charge in the FBI to authorize an administrative subpoena?

Ms. CAPRONI. I think that under the current circumstances,

where this would be a new power in a national security investigation, and where there is significant concern that the power could

be misused, it is not unreasonable at this time to have the delegation go to the special agent in charge of the office.

Senator LEVIN. And nobody below?

Ms. CAPRONI. That’s correct.

Senator LEVIN. Thank you.

Under FISA, is there the ability to challenge in court an order

for access to records?

Ms. CAPRONI. Under Section 215 of the PATRIOT Act? It doesn’t

clearly state that. I think the AG has made it clear that he would

support an amendment that clearly provides that a recipient of a

215 order could move to set aside or to modify the order.

Senator LEVIN. And that would be under FISA or the PATRIOT

Act. You would support that?

Ms. CAPRONI. Correct.

Senator LEVIN. There’s a provision—if I can find it—under section 214 of the Act—and this is the application for a trap and trace

or pen register under FISA—it says there that the reason for requesting that authority cannot be solely based on First Amendment

protected activity. Are we together so far, under section 214?

Ms. CAPRONI. Is it 214 of the PATRIOT Act? Yes.

Senator LEVIN. OK. Let’s assume that one of the purposes violates the First Amendment rights of somebody. Would that be allowed? You’ve got two purposes. One is legitimate and one would

violate the First Amendment rights of a citizen. Do you think we

ought to tolerate that, if one of the purposes of seeking an order

is to trap and trace phone calls?

185

Ms. CAPRONI. No agent should have, as a purpose, to violate

someone’s First Amendment rights. I don’t think that’s what that

provision is driving at. The provision provides that we can’t investigate a U.S. person—we can’t investigate them—based solely on

their First Amendment activities.

On the other hand——

Senator LEVIN. The word ‘‘solely’’ is what troubles me, because,

given your answer of 10 seconds ago, even partly, if that’s the partial motive, it would be deeply troubling.

Ms. CAPRONI. What I’m concerned about is the suggestion that

the agent would be, part of his goal would be to violate the First

Amendment rights of a person. That’s not what this is getting at.

I think what this is getting at is, if all you know about the person

is First Amendment protected activity, you cannot investigate them

for those reasons. You have to have something else. You have to

have some other reason to believe they are engaged in this conduct.

Senator LEVIN. But if one of the reasons for investigating that

person is to violate his First Amendment rights or would impinge

on his First Amendment rights illegally, under the wording ‘‘solely’’

that would seem to be permitted. I don’t think it should be, and

I don’t think you think it should be. And you don’t think that’s the

purpose of the language.

Ms. CAPRONI. That’s correct. I think the notion is you could have

someone who is engaging in oral conduct, who, sitting by itself—

if that’s all you know about the person—everyone would say that’s

First Amendment conduct.

But if you put in other stuff that you know, then it ceases to be

protected First Amendment conduct but is part of criminal conduct.

Just because you are speaking doesn’t mean that it’s not criminal.

If that’s all you know, it could be First Amendment conduct that

we would not use solely to conduct an investigation.

But if we know other things about them, that may color what

their oral conduct is, which might otherwise be viewed as First

Amendment activity. I think that’s the reason that the statute is

written that way—that if all you know about the person is their

protected activity, you can’t open an investigation on them.

Senator LEVIN. Thank you.

Chairman ROBERTS. The Senator’s time has expired.

Chairman ROBERTS. Senator Bayh.

Senator BAYH. Ms. Caproni, thank you for your time and for your

service to our country.

Several of my colleagues have asked questions along the lines

that I’d like to pursue, so if some of this is redundant, I apologize

in advance. I think we’re all trying to get our hands around just

how significant an impediment this has been to your ability to conduct national security investigations.

So my first question is, how many investigations have been adversely impacted by not having the advisory subpoena authority?

Ms. CAPRONI. Senator, I can’t give you those numbers. It’s not a

number that we would collect.

Senator BAYH. How are we supposed to decide this issue if we

don’t have any idea whether this has been material to your ability

to carry out your responsibilities? Is this all hypothetical or are

there actual cases? I understand we can’t discuss the specific cases,

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but has this hampered you 1 percent of the time, 50 percent of the

time, or has it never hampered you?

Ms. CAPRONI. It definitely does hamper us. The inability to

promptly get information that we need. As I think I indicated in

response to Senator Roberts, I’m not sure that we can show—and

I know we can’t—that because our investigation was delayed for a

day or 2 days or a month or 2 months——

Senator BAYH. Well, then I guess the nature of my question

would be what percentage of the investigations that you’ve conducted have been delayed because you don’t have this authority?

Ms. CAPRONI. I can’t give you percentage. I can tell you there are

circumstances where, because we don’t have administrative subpoena authorities and have to resort to other methods to get materials, that those investigations have been delayed.

Senator BAYH. So we have no way of knowing whether these

delays are extraordinarily unlikely or whether they happen all the

time. I’m just trying to get my hands around how material this is.

Is this something that has just occurred once where it’s been an inconvenience or a delay, or is this something that repeatedly comes

up that is really hampering you in your ability to conduct these investigations frequently.

Ms. CAPRONI. The think about national security investigations

and terrorism investigations is that even if it only happens once,

if that once is in the wrong case, then it would have a catastrophic

effect.

Senator BAYH. Well, then that’s something I’d like to pursue in

closed session, if in fact that’s happened.

Ms. CAPRONI. Again, I’m not saying it has happened, but I’m saying that these tools are available in other circumstances where the

possibility of the detrimental effect of delay are less than in a terrorism case. Again, can we show you a precise example of where,

because of delay, a bomb went off? We cannot. But could it happen

tomorrow? It could.

This is a tool that is readily available in other contexts. It again

is an anomaly that it’s not available in a national security investigation, where I think the American public would like the FBI to

have the broadest range of tools available, recognizing that they

need to use them responsibly.

Senator BAYH. The best I can tell here today, this is something

that you are prospectively concerned about, that there may be

cases crop up where this might materially hamper you. You can’t

really say it’s happened yet, but it might, and therefore we ought

to err on the side of doing more rather than less.

Ms. CAPRONI. There are examples where, because we didn’t have

the administrative subpoena authority, we had to go in other ways

to get the material and it took longer.

Senator BAYH. How often is the administrative subpoena authority used in the criminal context, these 300-some areas where you’re

allowed to use it now? Is this the kind of thing that happens all

the time or is it kind of a rare occurrence?

Ms. CAPRONI. It depends. I thought I saw the statistic last night,

like on a year-in/year-out basis maybe 3,000 are issued a year. I’m

not sure if those numbers are right, but we’ll get back to you on

the numbers of administrative subpoenas that are issued.

187

Senator BAYH. I’m just trying to get my hands around how material this is, how often this crops up and therefore how big an issue

it is for you.

Ms. CAPRONI. Within a national security investigation, anytime

we need a record and we don’t have a willing custodian—sometimes we have willing custodians, but if we don’t have a willing

custodian, we need some mechanism to get the documents.

Senator BAYH. I’ve only got a few seconds left, so in rapid fire

I’d like to follow up on something my colleagues, Senator Wyden,

asked you about, where he spoke about the criminal context and

now we’re getting into the security/intelligence realm. And you

pointed out that very often potential terrorism suspects are committing criminal acts, that kind of thing.

But then there’s going to be a subset where in fact they’ve not

committed a crime or are suspected of committing a crime. Can you

give us any idea about those percentages in terms of how many are

actually suspected of criminal activity and how many would be investigated for intelligence reasons that are not suspected of criminal activity?

Ms. CAPRONI. I think we may be able to get you some at least

approximate numbers on that, but it would be classified.

Senator BAYH. Well, let me ask you about the mail covers. As I

understand it, this is currently in the hands of the Postal Service;

is that correct?

Ms. CAPRONI. That’s correct.

Senator BAYH. And there’s a somewhat different threshold for

approving this than would be embodied in the legislation we’re considering here; is that correct?

Ms. CAPRONI. I think that’s right, and I think this legislation

would make it mandatory, if we request it, as opposed to the current regulatory scheme, which puts it in the discretion of the Postal

Inspector.

Senator BAYH. And do you have any sense about the checks that

the Postal Inspector has in place to ensure that the use of this kind

of authority is not misused versus the kind of checks that you

would have in place to make sure that it’s not misused?

Ms. CAPRONI. Well, the checks that are in place by the Postal Inspector is that they review our requests, and this to some extent

varies between postal inspector and postal inspector.

Senator BAYH. Do they kind of grant your request routinely, or

is it the kind of thing they really scrutinize and sort of agonize over

and say, ‘‘Gee, should we really do this or not?’’

Ms. CAPRONI. I have to say it varies and it also depends to some

extent on postal inspector to postal inspector. They are not a rubber stamp. They believe that they have the discretion to decide, yes

or no, whether they’re going to proceed with the mail cover.

Senator BAYH. My time is up. I believe the courts have already

ruled, have they not, that you have the ability to, for example, if

someone puts their trash out on the curb, the courts have ruled

you’ve got no privacy expectation on that; is that correct?

Ms. CAPRONI. That’s correct.

Senator BAYH. Other things that you put out in the public domain are already kind of out there for private investigators and

others to kind of access.

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Ms. CAPRONI. You run the risk that someone’s going to steal your

garbage and go through it.

Senator BAYH. And that may not be the kind of thing I think is

right, but that’s the way it is.

Ms. CAPRONI. That’s what the courts have held, that once you

abandon the property to the garbage man, you’ve abandoned your

expectation of privacy in it.

Senator BAYH. So one of the things here is whether mail should

be treated as other things that are put out and once it leaves your

zone of privacy.

Ms. CAPRONI. Again, there are court cases on this.

Senator BAYH. Whether you should have access to that kind of

information, just as anybody else can have access to it, in some

ways.

Ms. CAPRONI. Again, the courts have considered the constitutionality of mail covers, and the rationale is that mail covers are

constitutional. You don’t need a search warrant for them. And it’s

for the same general idea, that this information, which is only

what’s on the exterior of the envelope——

Senator BAYH. You’re not going inside the mail.

Ms. CAPRONI. We’re not opening the mail, no. We would need

court approval to open the mail.

Senator BAYH. Thank you, ma’am.

Chairman ROBERTS. I had one other observation before we have

the next panel come up, and Senator Snowe was next but she has

indicated she will pass.

If administrative subpoenas are constitutional investigative tools

that provide timely access to crucial information necessary to protect national security, with the significant checks and balances of

the judicial review, minimization procedures and congressional

oversight, I see no reason why investigations of terrorists and spies

should not have the same tool provided to the investigators that

they now have in regard to health care fraud, child pornography

and narcotics trafficking.

Using the logic in regard to some of the questions that have been

raised, you could call for more hoops—well, hoops is probably a bad

word—more safeguards in those cases as well in terms of the time

involved that it takes to investigate health care fraud, a child pornography case or narcotics trafficking or 335 other instances where

the Federal Government does use this tool.

So, with that, we thank you for your testimony and we now ask

the second panel to please come forward.

We would like to welcome the second panel: Mr. David Kris, Mr.

Joe Onek, Mr. Daniel Collins, Mr. James Dempsey.

Mr. Kris, would you please proceed?

[The prepared statement of Mr. Kris follows:]

PREPARED STATEMENT OF DAVID S. KRIS

Chairman Roberts, Vice Chairman Rockefeller, and Members of the Committee:

Thank you for the opportunity to testify about the Foreign Intelligence Surveillance

Act (FISA) and related provisions in the Committee’s draft bill. I join the Department of Justice (DOJ) in applauding the bill for addressing several difficult and important issues. Having first seen it less than a week ago, however, I have not yet

mastered all of its policy implications or technical aspects. This is a very complicated area of law. Accordingly, while I pledge my continuing availability, this

morning I can offer only tentative views based on a few days’ consideration. Subject

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to that caveat, set forth below are a few general comments, and several specific comments, on the bill. In appearing before you today, I speak only for myself, and not

for any former or current employer, including DOJ and Time Warner.

In general, the Committee’s draft bill authorizes and regulates several vitally important investigative tools, and I am therefore not surprised that DOJ has expressed its support. For example, Sections 101 and 203 will prevent any resurgence

of the FISA ‘‘wall’’ separating intelligence and law enforcement. As I testified in the

House last month,1 the wall is extremely dangerous; this bill will help keep it down.

Section 101 of the bill will also help ensure the government’s continuing authority

to conduct ‘‘roving’’ FISA surveillance, a tool that appears to be very valuable, and

that already contains strong protections for civil liberties. Section 102 makes permanent the lone-wolf provision of FISA, which I understand DOJ strongly supports.

Two other provisions of the bill, Sections 201 and 216, will likely ease administrative burdens on the FBI and DOJ by extending the duration of FISA authorization

orders involving non-U.S. persons (Sections 214 and 215 may have similarly helpful

effects). In an era of increasing FISA activity, this helps focus resources on cases

involving U.S. persons, where civil liberties concerns are preeminent.

This bill should also enjoy substantial support from civil libertarians. For example, Section 213 would authorize administrative subpoenas that are similar to existing national security letters, but with an express provision for motions to quash. Another part of the bill, Section 211, would expand the disclosure rights of persons

who receive a FISA tangible things order, and permit them to consult with counsel.

Section 211 would also require special minimization procedures governing the retention and dissemination of information obtained from a tangible things order. And

it would expand the government’s reporting obligations.

I do have questions about certain provisions in the bill. In Sections 202 and 212,

for example, I wonder whether it offers legislative solutions to problems that the

executive branch ought to be able to resolve internally. I believe that Congress

should change FISA only to address specific shortcomings not amenable to other

remedies. However, I also think that law and policy should reflect operational experience. My own operational experience in this area, once extensive, is now 2 years

out of date. I may not recognize or understand all of the problems facing government today. The Department of Justice, and you and your staff, are the real experts

in this area, and I hasten to defer to your expertise. In any event, I do not think

that Sections 202 and 212 threaten civil liberties.

Finally, in evaluating this bill, particularly Section 213, I urge you to consider not

only whether ‘‘the government’’—meaning the executive branch as a whole—should

have certain investigative power, but also which parts of government should have

power. Although I have no doubts about the constitutionality or importance of Section 213, I believe strongly that government is more effective, and civil liberties are

better protected, when FBI agents and DOJ lawyers work as closely and cooperatively in national security investigations as they do in traditional criminal investigations. Until late 2002, of course, the FISA wall effectively prohibited this. As we

emerge from the shadow of the wall, broad structural changes, such as the creation

of a DOJ National Security Division, may be necessary to foster the cooperative

model. But substantive bills like the Committee’s draft should also do so where they

can. Thank you again for the opportunity to be here. The balance of this submission

presents a section-by-section review of the Committee’s draft bill. Again, in light of

the complexity of the legal issues and the speed with which I have prepared this

testimony, I emphasize the tentative nature of my comments.

SECTIONS 101, 102 AND 203

Sections 101 and 102 of the Committee’s draft bill are designed to eliminate the

upcoming sunset for several provisions of the USA Patriot Act,2 and for the lonewolf provision of last year’s Intelligence Reform and Terrorism Prevention Act.3 You

and your counterparts in the House of Representatives have already heard from

many witnesses on both sides of the sunset debate. By and large, I support renewal

of the Patriot Act, but I would like to focus today on two important provisions: Section 218 of the Patriot Act, the ‘‘significant purpose’’ amendment to FISA (in connection with which I also discuss Section 203 of the Committee’s bill); and Section 206

of the Patriot Act, the ‘‘roving surveillance’’ amendment to FISA.

1. Patriot Act Section 218: Significant Purpose

On April 28, 2005, I testified about Section 218 before the Subcommittee on

Crime, Terrorism, and Homeland Security of the House Judiciary Committee.4 My

position then (as now) was that Congress should renew Section 218. I also urged

the Subcommittee explicitly to endorse the reasoning and decision of the Foreign InVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00193 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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telligence Surveillance Court of Review (FISCR or Court of Review) interpreting

Section 218 and other provisions of FISA.5 I testified:

Whether or not you agree with its outcome, the Court of Review’s opinion is

a very sophisticated and technically sound interpretation of a complex statute.

If Congress were to adopt its reasoning, it would provide guidance that is equally sophisticated and sound. That, above all, is what the country needs in this

area.6

I maintain that view today, and I therefore renew my recommendation that Congress adopt the Court of Review’s reasoning, either through explicit legislative history or a specific provision of public law.7

Repealing the sunset for Patriot Act Section 218 intersects with another provision

of the Committee’s bill, Section 203. Section 203 would amend the definition of ‘‘foreign intelligence information’’ to make explicit that information is ‘‘foreign intelligence information’’ even if it is sought for use in law enforcement efforts (such as

criminal prosecution) to protect against terrorism and other foreign intelligence

threats.8 As a technical matter, I believe that Section 203 will accomplish what it

is evidently meant to accomplish—that is, it will make clear Congress’s intent to

allow FISA searches or surveillance for the primary purpose, or even the exclusive

purpose, of obtaining evidence for the prosecution of a foreign spy or terrorist.9

As a policy matter, however, you know from my House testimony that I do not

support such an amendment for two reasons.10 First, Section 203 of the Committee’s

bill would further expand governmental power at a time when the Department of

Justice itself has not asked for broader authority. Second, a related point, I fear that

any operational benefit from the amendment would not justify the resulting cost in

uncertainty about the state of the law. As I stated at the outset, I believe that FISA

should not be amended except where the amendment is genuinely necessary.11

If you disagree, and decide to enact Section 203 of your bill, you should consider

how it will interact with Patriot Act Section 218. That is because, when read together, the two provisions could produce strange results. As explained above, Section 203 would allow the government to use FISA exclusively, not just primarily,

to gather evidence for the prosecution of a foreign spy or terrorist—because Section

203 defines ‘‘foreign intelligence information’’ to include evidence sought for such a

prosecution. Under Patriot Act Section 218, however, acquisition of ‘‘foreign intelligence information’’ need only be a ‘‘significant purpose’’ of a FISA search or surveillance. Thus, with both provisions on the books, the government might have authority to use FISA for a significant purpose of prosecuting a spy or terrorist, but

with the primary purpose of something else—ranging from ordinary law enforcement, to civil debt collection, to (maybe) sheer voyeurism.12 I myself support the status quo through renewal of Patriot Act Section 218 and adoption of the Court of

Review’s decision. A reasonable person might disagree and prefer Section 203 of

your bill. If you both renew Section 218 and enact Section 203, I recommend that

you include strong legislative history to guard against any misreading.

2. Patriot Act Section 206: Roving Surveillance

I believe the current debate over roving FISA surveillance has gone awry. Some

have claimed that under Patriot Act Section 206, ‘‘[t]he government can now issue

‘John Doe’ roving wiretaps that fail to specify a target or a telephone, and can use

wiretaps without checking that the conversations they are intercepting actually involve a target of the investigation.’’ 13 I disagree. As I try to demonstrate below by

analyzing the two statutes, FISA’s rules on roving surveillance compare favorably

with those in Title III,14 its counterpart in conventional criminal law.

a. Title III

The conduct that fundamentally justifies and underlies all Title III electronic surveillance is the commission of a specified criminal offense.15 To obtain a normal

(non-roving) surveillance order under Title III, the government must identify the offense.16 However, it need not identify or describe the person suspected of committing the offense,17 and it need not establish a nexus between any person and the

location, telephone, or other facility to be monitored. Instead, under Title III, the

government establishes a nexus between the offense and the location, telephone or

other facility to be monitored.18

By contrast, when the government obtains a roving surveillance order under Title

III, these requirements are effectively reversed. For obvious reasons, in such cases,

the government must identify the person committing the specified offense and

whose communications are to be intercepted.19 However, the government need not

identify the facilities from which or the place where the communications are to be

intercepted, and it need not establish a nexus between those facilities or places and

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the specified offense.20 Unlike ordinary Title III surveillance, roving Title III surveillance focuses on the target, not the facility being used in connection with a

crime.21

To use Title III’s roving surveillance provisions, the government must also make

certain additional showings. To obtain a roving surveillance order with respect to

what Title III defines as ‘‘oral communications,’’ 22 the government must persuade

the court that it is not ‘‘practical’’ to establish a nexus between the underlying conduct and the location to be monitored,23 and may not begin the monitoring until

‘‘the place where the communication is to be intercepted is ascertained.’’ 24 With respect to what Title III defines as ‘‘wire communications’’ 25 or ‘‘electronic communications’’ 26 the government must establish probable cause that the actions of the

person committing the underlying conduct ‘‘could have the effect of thwarting interception from a specified facility,’’ 27 and the roving surveillance order must be ‘‘limited to interception only for such time as it is reasonable to presume that the person

* * * is or was reasonably proximate to the instrument through which such communication will be or was transmitted.’’ 28

b. FISA

FISA establishes a different regime. In a normal (non-roving) FISA case, the government must identify or describe the target of the surveillance,29 and must also

show that the target is engaged in the underlying conduct that justifies the surveillance.30 Under FISA, of course, that underlying conduct is whatever makes the target a foreign power or an agent of a foreign power, which may (but need not always

be) criminal conduct—e.g., for a U.S. person, knowing engagement in international

terrorism, or for a non-U.S. person, serving as a foreign country’s diplomat in the

United States.31 The government must also establish a nexus between the target

and the facility to be monitored, by showing that the target is using, or about to

use, the facility.32 However, the government need not establish a nexus between the

target’s underlying conduct and the facility—e.g., it need not show that the facility

is being used in connection with international terrorism.33

All of the foregoing requirements apply equally to roving FISA surveillance. The

only difference between ordinary and roving FISA surveillance is that in a roving

case, where the FISC ‘‘finds that the actions of the target * * * may have the effect

of thwarting the identification of a specified person’’ who can assist the government

in accomplishing the electronic surveillance, the FISC may order such assistance

from ‘‘other persons’’ as well as the specified persons normally included in a secondary order.34 Thus, for example, rather than issuing a secondary order directing

assistance from a particular telecommunications company, the FISC can issue a generic order directing any telecommunications company to assist the government.

The government can use this order to follow the target wherever he goes.

Or can it? As discussed above, in normal surveillance cases, both Title III and

FISA require some showing of a nexus between the telephone or other facility that

will be wiretapped, and either the target (under FISA) 35 or the specified criminal

offense (under Title III 36 Title III eliminates that nexus requirement in roving

cases—On the theory that in such cases the government cannot make the showing

because it ‘‘may not know, until shortly before the communication, which telephone

line will be used by the person under surveillance.’’ 37 FISA seems to recognize this

same theory, because (as amended in 2002) it requires the FISC’s authorization

order to specify the nature and location of each facility to be surveilled only ‘‘if

known.’’ 38 Nonetheless, FISA does not eliminate the nexus requirement: In roving

cases as well as ordinary cases, it demands probable cause that ‘‘each of the facilities or places at which the electronic surveillance is directed is being used, or is

about to be used, by a foreign power or an agent of a foreign power.’’ 39 How can

the government make that showing in a roving case, where—by definition—it cannot even identify the facilities or places at the time the FISC enters its order?

In my view, the best answer lies in FISA’s minimization provisions. As you know,

those provisions require the Attorney General to propose, and the FISC to approve

(as proposed or as modified), specific procedures ‘‘that are reasonably designed in

light of the purpose and technique of the particular surveillance, to minimize the

acquisition * * * of nonpublicly available information concerning unconsenting

United States persons consistent with the need of the United States to obtain * * *

foreign intelligence information.’’ 40 If the minimization procedures require a nexus

before the government commences roving surveillance on a new facility—e.g.,

through observation of the target using the facility, or some other method—they

ought to satisfy the requirement that each facility ‘‘is’’ being used or about to be

used by the target before the surveillance begins.41

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In practical effect, instead of finding probable cause with respect to particular facilities not yet known, the FISC finds that there necessarily will be probable cause

under the minimization procedures it imposes as part of its authorization order.

This is roughly equivalent to Title III’s provisions eschewing a formal nexus requirement to any particular facility but requiring that roving surveillance of wire or electronic communications be ‘‘limited to interception only for such time as it is reasonable to presume that the [target] * * * is or was reasonably proximate to the instrument through which such communication will be or was transmitted.’’ 42 It is

broader than Title III in that it could be satisfied by something other than proximity to a communications instrument (e.g., where the target uses one facility to

communicate through another, remote facility), but it is narrower in that mere proximity is not necessarily sufficient (e.g., where the target walks past a pay phone but

does not use it).

c. Conclusion

In light of the foregoing, if I am reading the statute correctly, it is ironic that civil

libertarians have raised concerns about ‘‘John Doe’’ roving FISA orders. Every provision in FISA that applies to ordinary surveillance applies to roving surveillance;

there are no exceptions. One of those FISA provisions requires probable cause that

the target is using, or is about to use, ‘‘each’’ facility subjected to surveillance. As

a question of roving surveillance compared to ordinary surveillance, you literally

could not ask for more (other than, perhaps, what I describe in the next paragraph).43

There is one amendment to FISA that might address some of the concerns raised

by civil libertarians without unduly inhibiting the government. In essence, FISA

roving surveillance resembles a highly circumscribed form of emergency surveillance. In a typical emergency surveillance case, the government determines unilaterally whether it can satisfy all of the provisions of FISA (subject to later ratification by the FISC).44 In a roving case, the government determines unilaterally only

whether it can satisfy the nexus requirement (the FISC determines in advance all

other issues, such as whether the target is an agent of a foreign power). As in emergency cases, therefore, it may be worth considering whether the government should

be required to submit to the FISC, within some reasonable time after commencing

roving surveillance on a new facility, a description of the information upon which

it relied to do so. Such a provision would read something like this:

Sec. XXX. Report in Roving Surveillance Cases

Subsection 105(c)(2) of the Foreign Intelligence Surveillance Act (50 U.S.C.

§ 1805(c)(2)) is amended by adding the following new subsection (E):

that, in any case in which the Court finds that the actions of the target of the

application may have the effect of thwarting the identification of a specified person as described in subsection (c)(2)(B) of this section, and in which the electronic surveillance is directed against any facility or place the nature and location of which is not specified in the Court’s order under subsection (c)(1)(B) of

this section, the applicant or another Federal officer promptly report to the

Court the information relied upon determine that the target of the surveillance

was using, or was about to use, such facility or place.

This amendment should assuage fears about FISA roving surveillance by requiring judicial review, albeit shortly after the fact. Obviously, if the FISC found the

government’s submission unsatisfactory, it could terminate surveillance on the new

facility (on the theory that the government had not complied with the minimization

procedures).

I do not know what the Department of Justice will say in response to this amendment, but it seems reasonable to me in concept. If the word ‘‘promptly’’ is unsatisfactory for any reason—I borrowed it from 50 U.S.C. § 1824(c)(2)(E), the provision requiring the government to file a return following execution of a physical search—

a fixed period (3 days, 7 days, 10 days), or a ‘‘reasonable period to be determined

by the Court,’’ could be used instead.

SECTIONS 201 & 216

Section 201 of the Committee’s bill would amend FISA’s definition of ‘‘agent of a

foreign power’’ in 50 U.S.C. § 1801(b)(1)(A). As you know, 50 U.S.C. § 1801(b)(1)(A)

currently applies to any non-U.S. person who ‘‘acts in the United States as * * *

a member of ’’ a group engaged in international terrorism or activities in preparation

therefor.45 Another provision, 50 U.S.C. § 1801(b)(2)(E), currently applies to any person (including a U.S. person) who ‘‘knowingly aids or abets any person in the conVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00196 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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duct of,’’ or ‘‘knowingly conspires with any person to engage in,’’ sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of

a foreign power.46 Section 201 of the bill would add to 50 U.S.C. § 1801(b)(1)(A) the

aiding-and-abetting and conspiracy language from 50 U.S.C. § 1801(b)(2)(E).

This proposal would not change FISA’s definitions in any substantive way. It

would neither expand nor contract the reach of FISA, because anyone who would

fall under Section 201 of the bill is already covered by 50 U.S.C. § 1801(b)(2)(E). The

principal effect of Section 201 would be to extend the duration of FISA search or

surveillance orders applicable to such persons (if they are not U.S. persons), from

90 days, to an initial order of 120 days and renewal orders of 1 year each.47 A subsidiary effect would be to eliminate FISA’s civil damages remedy for such persons.48

As a policy matter, Section 201 seems reasonable. If longer periods of surveillance

and search authority are appropriate for non-U.S. persons who are ‘‘members’’ of

groups engaged in international terrorism or activities in preparation therefor,49

then they seem tolerable for non-U.S. persons who knowingly aid and abet or conspire to engage in sabotage, international terrorism, or activities in preparation

therefor. In keeping with my basic view that FISA should be amended only when

necessary, however, I would defer to the Department of Justice on whether Section

201 of the bill would in fact ease a burden—by reducing the number of applications

that must be filed—or otherwise solve a real problem in the administration of the

statute.

Section 216 is a related provision that specifically amends the duration provisions

of FISA. Under Section 216, FISA electronic surveillance and physical searches targeting non-U.S. persons who are agents of foreign powers could be conducted for an

initial period of 120 days and for renewal periods of 1 year. This would change current law, under which those longer authorization periods apply only to officers or

employees of foreign powers, and to members of international terrorist groups.50 If

Section 216 is enacted, Section 201 becomes superfluous (except for its effect on

FISA’s civil damages remedy as discussed above). (Of course, there is nothing wrong

with including both provisions in the bill at this stage of the legislative process.)

Section 216 would also extend from 90 days to 1 year the initial and renewal authorization periods for FISA pen-trap surveillance where the applicant certifies that

the ‘‘information likely to be obtained is foreign intelligence information not concerning a United States person.’’

SECTION 202

Section 202 of the bill would amend FISA’s definition of ‘‘contents’’ 51 essentially

to conform to the definition of the same term in Title III.52 I think I understand

the motivation for this amendment, but I question the need for it.

Since its enactment in 1978, FISA has allowed the government to seek, and the

FISC to issue, orders authorizing pen-trap surveillance. For the first 20 years of the

statute’s existence, however, the government could do so under FISA only by satisfying the requirements for a full-content ‘‘electronic surveillance’’ order.53 In 1998,

Congress amended FISA to allow the government to obtain pen-trap orders under

a different, and less demanding, set of standards.54

FISA’s 1998 provisions define the terms ‘‘pen register’’ and ‘‘trap and trace device’’

by reference to the pen-trap provisions applicable in criminal investigations.55

Under the criminal provisions, a pen register is a device or process which records

or decodes dialing, routing, addressing, or signaling information transmitted by an

instrument or facility from which a wire or electronic communication is transmitted,

provided, however, that such information shall not include the contents of any communication, but such term does not include any device or process used by a provider

or customer of a wire or electronic communication service for billing, or recording

as an incident to billing, for communications services provided by such provider or

any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.56

Reduced to its essentials, this definition means that a pen register is supposed

to detect the destination of outbound communications from a monitored telephone

or other facility, without detecting the contents of the communication being sent.57

A pen register on your telephone can identify whose number you call, but not what

you say if someone answers.

A trap and trace device is the reciprocal of a pen register: It is supposed to detect

the source of inbound communications to a monitored facility. Thus, a trap and

trace on your telephone can identify whose telephone number called you, but not

what you say. As a technical matter, a trap and trace device defined to be a device

or process which captures the incoming electronic or other impulses which identify

the originating number or other dialing, routing, addressing, and signaling informaVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00197 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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tion reasonably likely to identify the source of a wire or electronic communication,

provided, however, that such information shall not include the contents of any communication.58 Since 2001, a pen register and a trap and trace device may either be

a ‘‘device’’ or a ‘‘process,’’ which includes software as well as hardware methods of

gathering information.59

Typically, pen register orders are used to obtain the numbers being dialed from

a targeted telephone number, and trap and trace orders obtain the numbers of telephones making calls to a targeted number.60 Under amendments enacted in the Patriot Act, however, neither FISA nor the criminal pen-trap statute is limited to telephone numbers. Those statutes may now be used to obtain any ‘‘dialing, routing,

addressing, or signaling information’’ that identifies the destination or source of an

electronic communication, including email and Internet communications.61 But a

pen-trap order may not be used to obtain the ‘‘contents of any communication.’’ 62

Although FISA itself defines the term ‘‘contents,’’ that definition does not govern

FISA pen-trap surveillance.63 Indeed, if it did apply, the statute would effectively

forbid what it authorizes, because FISA defines ‘‘contents’’ to include ‘‘any information concerning the identity of the parties to [a] communication or the existence

* * * of that communication’’ 64—a standard that clearly includes the routing and

addressing information acquired by a pen-trap.

This, I believe, is the concern that underlies Section 202 of the Committee’s bill:

A concern that FISA’s broad definition of ‘‘contents’’ somehow calls into question the

validity of FISA pen-trap surveillance.65 I believe the concern is misplaced for two reasons.66

First, FISA’s pen-trap provisions clearly take their definition of ‘‘contents’’ from

Title III 67 which (as noted above) defines the term more narrowly than FISA to

mean ‘‘any information concerning the substance, purport, or meaning of [a] communication,’’ 68 but does not include information concerning the identity of the parties

or the existence of the communication. Thus, a FISA pen-trap order allows acquisition of routing and addressing information that is not ‘‘contents’’ as defined by Title

III, even if such information is ‘‘contents’’ as defined by FISA. Put another way, having narrowed Title III’s definition of ‘‘contents’’ in 1986,69 and cross-referenced the

narrower definition in FISA’s pen-trap provisions, you need not amend FISA’s definition of ‘‘contents’’ today.

Second, FISA’s pen-trap provisions, and their incorporation of Title III’s narrow

definition of ‘‘contents,’’ do not conflict with FISA’s electronic surveillance provisions

and their broad definition of ‘‘contents.’’ On the contrary, FISA authorizes pen-trap

surveillance ‘‘[n]otwithstanding any other provision of law’’ and ‘‘in addition to the

authority’’ granted to conduct electronic surveillance.70 Thus, FISA pen-trap surveillance remains lawful, and there is no need for any change to FISA’s definition of

‘‘contents.’’

In sum, FISA seems clearly to authorize pen-trap surveillance without a fullblown ‘‘electronic surveillance’’ order issued under 50 U.S.C. § 1805. The government

has in fact been conducting FISA pen-trap surveillance for many years. If agents

or others in the executive branch remain concerned, perhaps it highlights the need

for more training and outreach efforts. But I am not aware of any statutory problem

in need of repair.

SECTION 211

Section 211 amends FISA’s ‘‘tangible things’’ provisions in four ways. First, it

makes two changes to the language of 50 U.S.C. § 1861(a)(1). As amended by Section

211, 50 U.S.C. § 1861(a)(1) would provide (with deleted text in strikeout and added

text in redline):

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge)

may make an application for an order requiring the production of any tangible

things (including books, records, papers, documents, and other items) for relevant to an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or

clandestine intelligence activities, provided that such investigation of a United

States person is not conducted solely upon the basis of activities protected by the

first amendment to the Constitution.

I have no objection to the first change—replacing ‘‘for’’ with ‘‘relevant to.’’ 71 And

in view of the First Amendment provision that remains in 50 U.S.C. § 1861(2)(B),72

I have no objection to the Committee’s deletion of what amounts to a redundant

First Amendment provision from Section 1861(a)(1).

Second, Section 211 would change the non-disclosure provision in the tangible

things statute. Today, that provision states simply that ‘‘[n]o person shall disclose

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to any other person (other than those persons necessary to produce the tangible

things under this section) that the Federal Bureau of Investigation has sought or

obtained tangible things under this section.’’ 73 Section 211 would add several exceptions to this general prohibition, including disclosure to ‘‘an attorney to obtain legal

advice with respect to the production of things in response to the order,’’ and ‘‘other

persons as permitted by’’ the FBI Director or his designee. Recipients of disclosure

are subject to the same general non-disclosure obligations and must be so advised

by the person making the disclosure to them.

These changes seem to be motivated by (and reasonable in light of) Doe v.

Ashcroft,74 which struck down on First Amendment grounds a similar non-disclosure provision in one of the national security letter statutes.75 The court in Doe recognized that ‘‘the Government’s interest in protecting the integrity and efficacy of

international terrorism and counterintelligence investigations is a compelling one,’’

and that non-disclosure rules further that interest.76 But the court found that the

‘‘categorical, perpetual, and automatic ban on disclosure is not a narrowly tailored

means to advance those legitimate public interests.’’ 77

I don’t know whether Doe was correctly decided—I believe the government has appealed—but it seems reasonable in any event to consider additional exceptions to

the non-disclosure rules in FISA’s tangible things provisions. Of course, any exception creates some risk—disclosure to a lawyer could be dangerous, as illustrated by

the recent prosecution of Lynne Stewart—but there is no way to keep the orders

absolutely secret. More importantly, I am very sympathetic to persons who receive

these strange-looking papers from the FISA Court by way of the FBI. I know the

FISA statute pretty well, but if I someone handed me a tangible things order, I’d

want to consult with a lawyer before responding.78

An additional disclosure exception, not presently in Section 211 of the Committee’s bill, may be worth considering. One of the concerns in Doe was the unlimited

duration of the ban on disclosure. That may seem a marginal concern, but under

the First Amendment, concerns at the margin of a statute’s application can have

far-reaching consequences.79 I think the problem is solved, however, if the ban on

disclosure endures only so long as the underlying application and order remain

properly classified under the ordinary rules governing classification.80 There should

be no First Amendment problem with requiring recipients of properly classified information generally to keep it secret.81

Third, Section 211 would direct the Attorney General to adopt ‘‘minimization procedures governing the [FBI’s] retention and dissemination’’ of tangible things. As a

policy matter, this requirement is unobjectionable—indeed, I support the use of

minimization procedures as important safeguards for civil liberties. I do, however,

have a few, minor technical concerns. First of all, as far as I can tell, the ‘‘minimization procedures’’ mentioned here would not be reviewed and approved by the FISC.

Thus, they are not ‘‘minimization procedures’’ as that term is used elsewhere in

FISA.82 If that is correct, the provision may not be necessary, at least as far as U.S.

persons are concerned. Under Executive Order 12333, ‘‘[a]gencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the

head of the agency involved and approved by the Attorney General.’’ 83 If the provision is to remain in the statute, and these ‘‘minimization procedures’’ are not meant

to be reviewed by the FISC, a different term should be used to avoid confusion.

Fourth and finally, Section 211 would expand the government’s reporting obligations to include the total number of tangible things orders granted, and the total

number of them directed at libraries and certain other specified establishments.

This seems reasonable enough, and I defer to the Department of Justice, which has

recently revealed similar statistics in public testimony.84

SECTION 212

Section 212 amends FISA to direct the United States Postal Service to comply

with a request for a mail cover from a designated official of the FBI. As far as I

can tell, Section 212 codifies many of the provisions now set out at 39 CFR § 233.3,

and changes certain of them.85 Normally, I would say that Section 212 presents a

legislative solution to a sub-legislative problem, and that concerns about the mail

cover regulations should be taken up by the FBI with the Postal Service. However,

if—as I understand may be the case—sub-legislative remedies have been exhausted,86 a statutory fix becomes more plausible. From a civil liberties perspective,

Section 212 also has the advantage of requiring Congressional oversight of the use

of national security mail covers.

Under the current postal regulations, the FBI can get a mail cover by asking the

Postal Service. A mail cover is available to ‘‘[p]rotect national security,’’ a term that

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is defined to include most of the threats specified in the first half of FISA’s definition of ‘‘foreign intelligence information.’’ 87 To obtain a mail cover, a ‘‘law enforcement agency,’’ which is defined to include ‘‘any authority of the Federal Government

* * * one of whose functions is to * * * protect the national security,’’ 88 submits

a written request (or when time is of the essence, an oral request89) to the Chief

Postal Inspector or his designee with ‘‘reasonable grounds to demonstrate the mail

cover is necessary to * * * Protect the national security.’’ 90 In national security

cases, a mail cover can remain in effect for 120 days, and longer with the approval

of certain Postal Service officials.91 A national security mail cover must be approved

personally by the head of the agency requesting it, or by a single designee at the

requesting agency’s headquarters.92

I can understand why the FBI might chafe at certain of these requirements—particularly the one concerning high-level approval of any national security request,

and the fact that compliance with a request is not mandatory. In my view, this sort

of inter-agency dispute is usually best resolved within the Executive Branch.93 Were

it not for the fact that the Attorney General had personally raised this issue with

the Postmaster General more than 6 months ago, I would be very skeptical of Section 212. As it is, I can understand DOJ’s desire to seek the Committee’s aid. I note

with interest the Department’s views letter of May 18, 2005, in which it expresses

support for Section 212, and I assume (in accord with OMB Circular A–19) that the

Administration does not object to that expression of support. Perhaps the possibility

of a legislative amendment will concentrate the Postal Service’s mind and cause it

to reconsider.

SECTION 213

Section 213 of the Committee’s bill would allow certain designated FBI officials

to issue administrative subpoenas in the context of national security investigations

authorized under Executive Order 12333 94 and not premised solely on First Amendment activities. It allows enforcement of such a subpoena by the Attorney General

through the FISC, and also provides for motions to quash filed in the FISC or in

the recipient’s local United States District Court. Proceedings in courts other than

the FISC are to be closed and subject to nondisclosure rules, and the government

may submit materials to such courts ex parte and in camera. The Director of the

FBI is directed to establish regulations for the implementation of the subpoena provisions, and the Attorney General is directed to establish minimization procedures

governing retention and dissemination of information obtained by subpoena. There

is a provision for congressional oversight through the Intelligence Committees.

The government needs the power to compel production of documents and other

materials in national security investigations, and administrative subpoenas are one

important way to grant such power. From a civil liberties standpoint, Section 213

is, if anything, an improvement over current law. Unlike the current version of

FISA’s tangible things provisions,95 Section 213 provides expressly for disclosure to

an attorney. Moreover, unlike even the version of the tangible things provisions proposed by Section 211 of the Committee’s bill, Section 213 provides for judicial review

of a subpoena upon a motion to quash filed by the recipient. It allows private litigants access to the FISC, which may be viewed by civil libertarians as a good thing

regardless of what is litigated. There are now several administrative subpoena provisions on the books for use in investigations pertaining to such things as health

care fraud, child sexual abuse, and threats against protected persons,96 as well as

drug cases.97 Thousands of administrative subpoenas have been issued in these

kinds of cases.98 Administrative subpoenas in national security cases, with the same

or similar protections—including authorization for motions to quash—seem unobjectionable by comparison.

I have two other observations about Section 213. First, I am concerned about the

invitation to private litigants to file motions in the FISC. This is not so much a philosophical concern as a pragmatic one. If thousands of subpoenas are issued, several

motions to quash may be filed.99 As far as I know, the FISC is simply not equipped

to handle that kind of litigation. Indeed, the FISC is not really equipped to handle

any litigation involving private parties—it has no publicly accessible space, and a

relatively small staff. To be sure, these logistical obstacles could be overcome, but

only by changing the FISC’s nature and focus. With the dramatic increases in FISA

activity over the past few years, I think the FISC should remain centered on its core

function of reviewing applications. If the recent statistics revealing substantial numbers of denials and modifications of FISA applications are any guide, the FISC has

been doing a careful job. I would not lightly open the FISC to adversary proceedings, particularly over something like an administrative subpoena. But I have

no similar objection to motions to quash filed in ordinary district courts, as long as

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the government is prepared to assume the risk of a leak. And ultimately, I largely

defer to the Department of Justice with respect to what is workable here, at least

in the first instance.

My second concern arises because Section 213 grants administrative subpoena

power to the Director of the FBI, and orders the Director to establish regulations

for the use of such subpoenas. I think the authority should be granted to the Attorney General, who may delegate (and in some other cases has delegated100) the authority to the Director. This may seem a trivial point—and in many respects it is—

but I believe it relates to a broader and vitally important concern. I think it may

be helpful to the Committee if I lay out that broader concern, using Section 213 as

an illustration.

As the Committee is aware, the executive branch is now considering whether and

how to restructure the government to deal with domestic counterintelligence matters. Spurred by the 9-11 Commission Report, and the more recent WMD Commission Report, some have suggested splitting the FBI to create an American version

of MI-5—that is, a domestic counterintelligence agency separate from Federal law

enforcement. The FBI obviously opposes that idea. I also oppose creating an American MI-5, primarily because I think such a major change would take years to bear

fruit, and would create chaos in the interim. Unfortunately, our adversaries will not

let us call a time-out while we restructure.

In my view, the more promising approach is to mandate significantly increased

coordination between the FBI and DOJ prosecutors and other lawyers. Such coordination should, in my view, be required in individual cases and investigations, in national-level programs, and also in policymaking (both intra- and inter-agency). As

I explained last month in my testimony before the House,101 bringing agents and

lawyers together would make the Department and the FBI more efficient and effective, and would also enhance protection of civil liberties. It would do this by taking

advantage of the DOJ/FBI culture and training that have been in effect for many

years in all investigative areas except national security. Agents and lawyers working together produce better results than either group working alone.

In keeping with this view, I support legislative measures that tend to unite agents

and lawyers in national security investigations. Section 213 will not do that because, like the current national security letter statutes, it allows the FBI to take

investigative action unilaterally. It thus stands in contrast to grand jury subpoenas,

which cannot be issued without the involvement of prosecutors. I believe Section 213

should encourage cooperation between agents and lawyers by requiring lawyers’ involvement, or at least by giving the Attorney General the option to do so. The Attorney General controls both DOJ proper and the FBI, and he may therefore decide

to delegate administrative subpoena power directly to the FBI. On the other hand,

particularly if DOJ creates a National Security Division, he might delegate the

power to the head of that division, and/or to specially designated Assistant U.S. Attorneys in the field. I recommend that Section 213 be changed to grant administrative subpoena authority to the Attorney General.

SECTION 214

Section 214 would eliminate the current requirement that the Department of Justice report to Congress on the number of cases in which FISA information has been

authorized for use in criminal cases.102 The obligation to report authorizations for

use of FISA information at trial would remain.103 If, as I hope, this provision reflects a vastly expanded administrative burden arising from vastly expanded sharing of intelligence information with law enforcement officials, then I take it as a

very promising sign that dots are being connected.

SECTION 215

Section 215 would allow the government to obtain subscriber information, of the

sort normally acquired by a FISA tangible things order, as part of FISA pen-trap

surveillance. Thus, for example, instead of obtaining only the telephone numbers

called by a monitored telephone, the government could get the telephone numbers

and the names, addresses, length of service, and other information about the subscribers to those telephone numbers. This appears to be patterned after 18 U.S.C.

§ 2703(c)(2). This seems like a reasonable effort to spare the government the need

to file two applications instead of one, but again I would defer in the first instance

to the Department of Justice on the question whether Section 215 would in fact remove a real burden. If Section 215 is desirable, I would also consider whether DOJ

wants similar authority for FISA ‘‘electronic surveillance’’ orders issued under 50

U.S.C. § 1805.

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ENDNOTES

1. Written Testimony of David S. Kris before the House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security (April 28, 2005)

(hereinafter Kris House Testimony). I have, of course, made that testimony available to your staff. As of this writing, it is also available at http://judiciary.house.gov/media/pdfs/kris042805.pdf.

2. Uniting and Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act or Patriot Act),

Pub. L. No. 107–56, 115 Stat. 272 (Oct. 26, 2001). Section 224 of the Patriot Act

provides:

(a) IN GENERAL.—Except as provided in subsection (b), this title and the

amendments made by this title (other than sections 203(a), 203(c), 205, 208,

210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005.

(b) EXCEPTION.—With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in subsection (a) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions

cease to have effect, such provisions shall continue in effect.

115 Stat. 295.

3. Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No.

108–458, 118 Stat. 3638 (Dec. 17, 2004). Section 6001 of the IRTPA provides:

(a) IN GENERAL.—Section 101(b)(1) of the Foreign Intelligence Surveillance

Act of 1978 (50 U.S.C. § 1801(b)(1)) is amended by adding at the end the following new subparagraph:

‘‘(C) engages in international terrorism or activities in preparation therefore; or’’.

(b) SUNSET.—The amendment made by subsection (a) shall be subject to the

sunset provision in section 224 of Public Law 107–56 (115 Stat. 295), including

the exception provided in subsection (b) of such section 224.

118 Stat. 3742.

4. See Kris House Testimony.

5. In re Sealed Case, 310 F.3d 717 (FISCR 2002).

6. Kris House Testimony at 13.

7. Your legislative staff and the Department of Justice’s Offices of Legislative Affairs and Legal Counsel would be better equipped than I am to determine the best

way for Congress to express its endorsement of the Court of Review’s decision. With

some Justices and judges increasingly wary of legislative history, however, an enacted provision of public law may be more authoritative than even the clearest committee report or floor statement. See, e.g., Shannon v. United States, 512 U.S. 573,

583 (1994) (citing cases and noting that ‘‘Members of this Court have expressed differing views regarding the role that legislative history should play in statutory interpretation’’).

8. Under 50 U.S.C. § 1801(e), as amended by Section 203 of the Committee’s bill,

the term ‘‘foreign intelligence information’’ would be defined as follows (with Section

203’s proposed language in redline):

(1) information that relates to, and if concerning a United States person is

necessary to, the ability of the United States to protect (including protection by

use of law enforcement methods such, as criminal prosecution) against—

(A) actual or potential attack or other grave hostile acts of a foreign power

or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of

a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network

of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

9. In my House testimony last month, I stated:

If you decide that you want to expand DOD’s authority along these lines, and

remove any statutory doubt, you should amend the definition of ‘‘foreign intelligence information’’ by adding the phrase ‘‘including protection against the foregoing using law enforcement methods, such as criminal prosecution,’’ immediately after 50 U.S.C. § 1801(e)(1)(C).

Kris House Testimony at note 91 (emphasis in original). Section 203 of the bill

uses almost 18 identical language in a slightly different place in the definition. ProVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00202 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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fessor Richard Seamon, a thoughtful academic commentator in this area, has recommended a similar approach. See Richard Seamon and William Gardner, The Patriot Act and the Wall Between Intelligence and Law Enforcement, 28 Harv. Journal

on Law and Pub. Policy 319, 458–459 (Spring 2005) (recommending an amendment

to 50 U.S.C. § 1801(e)(1) to provide that foreign intelligence information means ‘‘information that relates to, and if concerning a United States person is necessary to,

the ability of the United States, by law-enforcement or other lawful means, to protect against’’ specified threats).

For a detailed explanation of why and how this sort of amendment would function, see Kris House Testimony at 1–4, 9–12.

10. See Kris House Testimony at 12–14 & n.90.

11. I know at least one very intelligent person who disagrees. See Letter from Professor Richard Seamon to Chairman Howard Coble, House Judiciary Committee,

Subcommittee on Crime, Terrorism, and Homeland Security (May 4, 2005).

12. A full explanation for why this is the case appears on pages 9–12 of my House

testimony last month. Here is an abbreviated explanation: The Court of Review interpreted Section 218 as codifying the ‘‘false dichotomy’’ between law enforcement

methods and all other methods of protecting national security. It explained: ‘‘The

government heroically tries to give [Section 218] a wholly benign interpretation. It

concedes that ‘the significant purpose amendment recognizes the existence of the dichotomy between foreign intelligence and law enforcement,’ but it contends that ‘it

cannot be said to recognize (or approve) its legitimacy.’ Supp. Br. of U.S. at 25 (emphasis in original). We are not persuaded.’’ In re Sealed Case, 310 F.3d at 734–735.

On that basis, the Court of Review read Section 218 to permit FISA searches and

surveillance primarily for law enforcement methods of protecting national security

(id. at 734):

as a matter of straightforward logic, if a FISA application can be granted even

if ‘foreign intelligence’ is only a significant—not a primary—purpose, another

purpose can be primary. One other legitimate purpose that could exist is to

prosecute a target for a foreign intelligence crime.

Section 203 of the Committee’s bill would eliminate the false dichotomy, and so

also the premise of the Court of Review’s interpretation of Section 218. To paraphrase from the block quote above, if the ‘‘foreign intelligence’’ purpose now includes

the purpose to prosecute a target for a foreign intelligence crime (because of Section

203), then the ‘‘other purpose’’ that can be primary under Patriot Act Section 218

would have to be something different than prosecuting a target for a foreign intelligence crime—and indeed, different than anything that protects national security.

Allowing FISA to be used primarily for something other than a ‘‘foreign intelligence’’

purpose (once ‘‘foreign intelligence’’ has been defined to include prosecution) seems

unnecessary and unwise.

13. Testimony of Gregory T. Nojeim, Associate Director and Chief Legislative

Counsel Washington Legislative Office, American Civil Liberties Union, before the

Subcommittee on Crime, Terrorism and Homeland Security of the House Judiciary

Committee (April 28, 2005) (available at http://judiciary.house.gov/media/pdfs/

nojeim042805.pdf)

14. 18 U.S.C. §§ 2510–2522.

15. A Title III application must contain ‘‘details as to the particular offense that

has been, is being, or is about to be committed.’’ 18 U.S.C. § 2518(1)(b)(i). To grant

the application, the court must find ‘‘probable cause for belief that an individual is

committing, has committed, or is about to commit a particular offense enumerated

in section 2516 of this chapter.’’ 18 U.S.C. § 2518(3)(a). These provisions apply to all

Title III cases, roving and non-roving.

16. See note 15, supra.

17. A Title III application must include ‘‘the identity of the person, if known, committing the [specified] offense and whose communications are to be intercepted.’’ 18

U.S.C. § 2518(1)(b)(iv) (emphasis added). To grant the application, the court must

find probable cause that ‘‘an individual is committing, has committed, or is about

to commit a particular [specified] offense.’’ 18 U.S.C. § 2518(3)(a) (emphasis added).

In keeping with these provisions, the Supreme Court has held that ‘‘when there is

probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identifiable, a [non-roving] wire interception order

may, nevertheless, properly issue under the statute.’’ United States v. Kahn, 415

U.S. 143, 157 (1974).

18. A Title III application in a non-roving case must include ‘‘a particular description of the nature and location of the facilities from which or the place where the

communication is to be intercepted.’’ 18 U.S.C. § 2518(1)(b)(ii). To grant the application, the court must find probable cause either (1) that ‘‘the facilities from which,

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or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission

of [the specified] offense,’’ or (2) that those facilities or places are ‘‘leased to, listed

in the name of, or commonly used by [the] person’’ committing the specified offense.

18 U.S.C. § 2518(3)(d). However, the Department of Justice has publicly revealed

that ‘‘[for prudential reasons,’’ it is ‘‘often cautious about using the ’listed, leased,

or commonly used’ provision of Title III absent evidence that the facility is in fact

being used in connection with the predicate offense.’’ Supplemental Brief for the

United States in In re Sealed Case, 310 F.3d 717 (FISCR 2002), at 18 n.6.

19. To obtain Title III roving surveillance authority for oral communications, the

government must ‘‘identif[y] the person committing the offense and whose communications are to be intercepted.’’ 18 U.S.C. § 2518(11)(a)(ii). To obtain Title III roving

surveillance authority for wire and electronic communications, the government must

‘‘identif[y] the person believed to be committing the offense and whose communications are to be intercepted.’’ 18 U.S.C. § 2518(11)(b)(ii).

20. Under 18 U.S.C. § 2518(11), the requirements of 18 U.S.C. §§ 2518(1)(b)(ii) and

(3)(d), discussed in note 18, supra, ‘‘do not apply’’ if the government meets the other

requirements for Title III roving surveillance of oral, wire, or electronic communications.

21. Here is the description of roving Title III surveillance authority from the

United States Attorneys’ Manual (§ 9–7.111):

Pursuant to 18 U.S.C. § 2518(11)(a) and (b), the government may obtain authorization to intercept wire, oral, and electronic communications of specifically

named subjects without specifying with particularity the premises within, or the

facilities over which, the communications will be intercepted. (Such authorization is commonly referred to as ‘‘roving’’ authorization.) As to the interception

of oral communications, the government may seek authorization without specifying the location(s) of the interception when it can be shown that it is not practical to do so. See United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert.

denied, 114 S. Ct. 1644 (1994); United States v. Orena, 883 F. Supp. 849

(E.D.N.Y. 1995). An application for the interception of wire and electronic communications of specifically named subjects may be made without specifying the

facility or facilities over which the communications will be intercepted when it

can be shown that the subject or subjects of the interception have demonstrated

a purpose to thwart interception by changing facilities. See United States v.

Gaytan, 74 F.3d 545 (5th Cir. 1996); United States v. Petti, 973 F.2d 1441 (9th

Cir. 1992), cert. denied, 113 S. Ct. 1859 (1993); United States v. Villegas, 1993

WL 535013 (S.D.N.Y. December 22, 1993).

22. Under Title III, the term ‘‘oral communication’’ means ‘‘any oral communication uttered by a person exhibiting an expectation that such communication is not

subject to interception under circumstances justifying such expectation, but such

term does not include any electronic communication.’’ 18 U.S.C. § 2510(4). Oral communications would be intercepted by, e. g. , a concealed microphone.

23. 18 U.S.C. § 2518(11)(a). Section 2518(11)(a) provides:

The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the

specification of the facilities from which, or the place where, the communication is

to be intercepted do not apply if—

(a) in the case of an application with respect to the interception of an oral

communication—

(i) the application is by a Federal investigative or law enforcement officer and is

approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney

General;

(ii) the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose

communications are to be intercepted; and

(iii) the judge finds that such specification is not practical.

24. 18 U.S.C. § 2518(12). The legislative history of this provision explains with respect to this ‘‘ascertainment’’ language:

Proposed subsection 2518(12) of title 18 provides * * * that where the Federal Government has been successful in obtaining a relaxed specificity order, it

cannot begin the interception until the facilities or place from which the communication is to be intercepted is ascertained by the person implementing the

interception order. In other words, the actual interception could not begin until

the suspect begins or evidences an intention to begin a conversation. * * * This

provision puts the burden on the investigation agency to ascertain when the

interception is to take place.

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S. Rep. No. 99–541, 99th Cong., 2d Sess. 32 (Oct. 17, 1986) (hereinafter ECPA Senate Report).

25. Under Title III, the term ‘‘wire communication’’ means ‘‘any aural transfer

made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of

origin and the point of reception (including the use of such connection in a switching

station) furnished or operated by any person engaged in providing or operating such

facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.’’ 18 U.S.C. § 2510(1). Under Title III,

a telephone call is a wire communication.

26. Under Title III, the term ‘‘electronic communication’’ means ‘‘any transfer of

signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or

photooptical system that affects interstate or foreign commerce, but does not include—(A) any wire or oral communication; (B) any communication made through

a tone-only paging device; (C) any communication from a tracking device (as defined

in section 3117 of this title); or (D) electronic funds transfer information stored by

a financial institution in a communications system used for the electronic storage

and transfer of funds.’’ 18 U.S.C. § 2510(12). Under Title III, an electronic mail message is an electronic communication.

22 27. 18 U.S.C. § 2518(11)(b)(ii)–(iii). Section 2518(11) provides:

The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the

specification of the facilities from which, or the place where, the communication is

to be intercepted do not apply if—

****

(b) in the case of an application with respect to a wire or electronic

communication—

(i) the application is by a Federal investigative or law enforcement officer and is

approved by the Attorney General; the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney

General;

(ii) the application identifies the person believed to be committing the offense and

whose communications are to be intercepted and the applicant makes a showing

that there is probable cause to believe that the person’s actions could have the effect

of thwarting interception from a specified facility;

(iii) the judge finds that such showing has been adequately made; and

(iv) the order authorizing or approving the interception is limited to interception

only for such time as it is reasonable to presume that the person identified in the

application is or was reasonably proximate to the instrument through which such

communication will be or was transmitted.

28. 18 U.S.C. § 2518(11)(b)(iv). Under 18 U.S.C. § 2518(12), ‘‘[a] provider of wire

or electronic communications service that has received [a roving surveillance order]

may move the court to modify or quash the order on the ground that its assistance

with respect to the interception cannot be performed in a timely or reasonable fashion.’’

29. A FISA application for electronic surveillance must include ‘‘the identity, if

known, or a description of the target of the electronic surveillance.’’ 50 U.S.C.

§ 1804(a)(3).

30. A FISA application for electronic surveillance must include ‘‘a statement of the

facts and circumstances relied upon by the applicant to justify his belief that—(A)

the target of the electronic surveillance is a foreign power or an agent of a foreign

power.’’ 50 U.S.C. § 1804(a)(4)(A). To grant the FISA application, the Foreign Intelligence Surveillance Court (FISC) must find, ‘‘on the basis of the facts submitted by

the applicant,’’ that ‘‘there is probable cause to believe that—(A) the target of the

surveillance is a foreign power or an agent of a foreign power.’’ 50 U.S.C.

§ 1804(a)(4)(A).

31. See 50 U.S.C. § 1801(a)-(b) (defining ‘‘foreign power’’ and ‘‘agent of a foreign

power’’).

32. A FISA application for electronic surveillance must include ‘‘a statement of the

facts and circumstances relied upon by the applicant to justify his belief that * * *

(B) each of the facilities or places at which the electronic surveillance is directed

is being used, or is about to be used, by a foreign power or an agent of a foreign

power.’’ 50 U.S.C. § 1804(a)(4)(B). To grant the FISA application, the FISC must

find, ‘‘on the basis of the facts submitted by the applicant,’’ that ‘‘there is probable

cause to believe that * * * (B) each of the facilities or places at which the electronic

surveillance is directed is being used, or is about to be used, by a foreign power or

an agent of a foreign power.’’ 50 U.S.C. § 1805(a)(3)(B). See note 32, supra.

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33. The certification that is part of every FISA application must designate the

type of foreign intelligence information being sought by the electronic surveillance,

and explain the basis for the designation. 50 U.S.C. § 1804(a)(7)(D) and (E)(i).

34. 50 U.S.C. § 1805(c)(2)(B).

35. See note 32, supra. 36. As discussed in notes 18 and 32, supra, the government normally satisfies

Title III by establishing probable cause that ‘‘the facilities from which, or the place

where, the wire, oral, or electronic communications are to be intercepted are being

used, or are about to be used, in connection with the commission of [the underlying]

offense,’’ 18 U.S.C. § 2518(3)(d), and FISA requires probable cause that ‘‘each of the

facilities or places at which the electronic surveillance is directed is being used, or

is about to be used, by a foreign power or an agent of a foreign power.’’ 50 U.S.C.

§ 1805(a)(3)(B).

37. ECPA Senate Report at 31.

38. 50 U.S.C. § 1805(c)(1)(B).

39. 50 U.S.C. § 1805(a)(3)(B)

40. 50 U.S.C. § 1801(h)(1).

41. The nexus requirement applies only to each facility at which surveillance ‘‘is’’

directed, but the use of the present tense plainly would not support an argument

that roving surveillance—which occurs in the future—is exempt from the requirement. On the contrary, even in an ordinary (non-roving) FISA case, the surveillance

commences in the future—i.e., after the FISC has issued its order.

42. 18 U.S.C. § 2518(11)(b)(iv).

43. Roving FISA surveillance is in fact being done. The Department of Justice revealed that there had been 49 roving FISA surveillance orders issued as of March

30, 2005. Testimony of James A. Baker, Counsel for Intelligence Policy, before the

Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, U.S. House of Representatives, April 28, 2005 (available at http://judiciary.house.gov/media/pdfs/baker042805.pdf) (hereinafter Baker House Testimony).

The Department supports roving FISA surveillance with arguments similar to,

but not identical to, the ones I advance here. As James Baker, the Counsel for Intelligence Policy, testified on April 28, 2005:

Let me respond to this criticism [concerning ‘‘John Doe’’ warrants] in the following way. First, even when the government is unsure of the name of a target

of such a wiretap, FISA requires the government to provide ‘‘the identity, if

known, or a description of the target of the electronic surveillance’’ to the FISA

Court prior to obtaining the surveillance order. 50 U.S.C. §§ 1804(a)(3) and

1805(c)(1)(A). As a result, each roving wiretap order is tied to a particular target whom the FISA Court must find probable cause to believe is a foreign power

or an agent of a foreign power. In addition, the FISA Court must find ‘‘that the

actions of the target of the application may have the effect of thwarting’’ the surveillance, thereby requiring an analysis of the activities of a foreign power or

an agent of a foreign power that can be identified or described. 50 U.S.C.

§ 1805(c)(2)(B). Finally, it is important to remember that FISA has always required that the government conduct every surveillance pursuant to appropriate

minimization procedures that limit the government’s acquisition, retention, and

dissemination of irrelevant communications of innocent Americans. Both the Attorney General and the FISA Court must approve those minimization procedures. Taken together, we believe that these provisions adequately protect

against unwarranted governmental intrusions into the privacy of Americans.

Baker House Testimony at 2 (emphasis in original).

44. See 50 U.S.C. § 1805(f).

45. Under 50 U.S.C. § 1801(b)(1)(A), an ‘‘agent of a foreign power’’ is defined to

include:

(1) any person other than a United States person, who—

(A) acts in the United States as an officer or employee of a foreign power, or as

a member of a foreign power as defined in subsection (a)(4) of this section.

Under 50 U.S.C. § 1801(a)(4), a ‘‘foreign power’’ is defined to include ‘‘a group engaged in international terrorism or activities in preparation therefor.’’

Under 50 U.S.C. § 1801(c), ‘‘international terrorism’’ is defined to mean activities

that:

(1) involve violent acts or acts dangerous to human life that are a violation of the

criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

(2) appear to be intended—

(A) to intimidate or coerce a civilian population;

(B) to influence the policy of a government by intimidation or coercion; or

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(C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States, or transcend national boundaries in

terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or

seek asylum.

46. Under 50 U.S.C. § 1801(b)(2), an ‘‘agent of a foreign power’’ is defined to include: any person who—

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the

criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign

power, knowingly engages in any other clandestine intelligence activities for or on

behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that

are in preparation therefor, for or on behalf of a foreign power;

(D) knowingly enters the United States under a false or fraudulent identity for

or on behalf of a foreign power or, while in the United States, knowingly assumes

a false or fraudulent identity for or on behalf of a foreign power; or

(E) knowingly aids or abets any person in the conduct of activities described in

subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in

activities described in subparagraph (A), (B), or (C).

47. See 50 U.S.C. §§ 1805(e)(1)(B), (e)(2)(B) (electronic surveillance), 1824(d)(1)(B),

(d)(2)(B) (physical searches).

48. See 50 U.S.C. §§ 1810 (‘‘An aggrieved person, other than a foreign power or

an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title,

respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or

used in violation of section 1809 of this title shall have a cause of action against

any person who committed such violation and shall be entitled to recover’’ money

damages); 1828 (‘‘An aggrieved person, other than a foreign power or an agent of

a foreign power, as defined in section 1801(a) or (b)(1)(A), respectively, of this title,

whose premises, property, information, or material has been subjected to a physical

search within the United States or about whom information obtained by such a

physical search has been disclosed or used in violation of section 1827 of this title

shall have a cause of action against any person who committed such violation and

shall be entitled to recover’’ money damages).

49. See 50 U.S.C. §§ 1801(b)(1)(A), 1805(e)(1)(B). FISA’s legislative history explains that the ‘‘term ‘member’ means an active, knowing member of the group or

organization which is a foreign power. It does not include mere sympathizers, fellow-travelers, or persons who may have merely attended meetings of the group or

organization.’’ H.R. Rep. No. 1283, Part I, 95th Cong., 2d Sess. 34 (1978) (hereinafter House Report) This is, of course, a fact-intensive inquiry.

50. 50 U.S.C. §§ 1805(e)(1)(B), (2)(B), 1824(d)(1)(B), (d)(2)(B); see 50 U.S.C.

§§ 1801(b)(1)(A).

51. 50 U.S.C. §§ 1801(n) (‘‘Contents’, when used with respect to a communication,

includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication’’).

52. 18 U.S.C. § 2510(8) (‘‘contents’, when used with respect to any wire, oral, or

electronic communication, includes any information concerning the substance, purport, or meaning of that communication’’).

53. See House Report at 51 (stating that pen registers were intended to be included in the definition of ‘‘electronic surveillance’’ in 50 U.S.C. § 1801(f)(2)), 67 (‘‘devices such as pen registers are included’’); see also S. Rep. No. 185, 105th Cong.,

2d Sess. 27 (1998) (noting that pen registers were considered electronic surveillance

under the original version of FISA) (hereinafter Senate Intelligence Pen-Trap Report).

54. Pub. L. No. 105–272, § 601, 112 Stat. 2396 (Oct. 20, 1998), codified at 50

U.S.C. §§ 1841–1846. Pen-trap orders may be obtained on a lesser showing than

would be necessary for electronic surveillance or a physical search because the Supreme Court has held that limited information concerning the source or destination

of a communication is not protected by the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735 (1979). The Court in Smith reasoned that a person does not have

a reasonable expectation of privacy in the numbers dialed from a telephone and

therefore that a pen register does not constitute a ‘‘search’’ within the meaning of

the Fourth Amendment. Id. at 742–46. Absent the statutory requirements to obtain

a court order, therefore, the government could employ pen-trap devices without any

judicial authorization.

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55. See 50 U.S.C. § 1841(2) (defining pen register and trap and trace by reference

to 18 U.S.C. § 3127).

56. 18 U.S.C. § 3127(3).

57. See note 62, infra.

58. 18 U.S.C. § 3127(4).

59. See www.usdoj.gov/criminal/cybercrime/PatriotAct.htm. A trap and trace device is still defined in the statute as a trap and trace ‘‘device’’ even if it is in fact

a process, rather than a device.

60. See United States v. New York Tel. Co., 434 U.S. 159, 161 n.1 (1977) (‘‘A pen

register is a mechanical device that records the numbers dialed on a telephone by

monitoring the electronic impulses caused when the dial on the phone is released.

It does not overhear oral communications and does not indicate whether calls are

actually completed.’’).

61. See U.S. Internet Service Provider Association, Electronic Evidence Compliance—A Guide for Internet Service Providers, 18 Berkeley Tech. L. J. 945, 956

(2003) (‘‘Law enforcement may also use pen register and trap and trace orders to

trace communications on the Internet and other computer networks.’’). Prior to the

Patriot Act, pen registers had been used to obtain computer routing and addressing

information, but it was not well settled that this was the correct interpretation of

the statute. See www.usdoj.gov/criminal/cybercrime/PatriotAct.htm.

62. 18 U.S.C. § 3127(3) & (4). FISA does not incorporate a provision of the criminal code that requires the government to use ‘‘technology reasonably available to it

that restricts’’ pen-trap interceptions ‘‘so as not to include the contents of any wire

or electronic communications.’’ 18 U.S.C. § 3121(c). However, Section 2.4 of Executive Order 12333 imposes similar restrictions, requiring Intelligence Community

agencies, which include the intelligence elements of the FBI, to ‘‘use the least intrusive collection techniques feasible within the United States or directed against

United States persons abroad.’’

63. It applies only to the subchapter of FISA regulating electronic surveillance.

Under the first sentence of 50 U.S.C. § 1801, the definitions in that section apply

only to ‘‘this title,’’ or Title I of FISA. The pen-trap provisions are in Title IV of

FISA. Although Congress chose to incorporate by reference into the FISA pen-trap

provisions many of the definitions applicable to electronic surveillance, it did not incorporate FISA’s definition of ‘‘contents.’’ See 50 U.S.C. § 1841.

64. 50 U.S.C. § 1801(n).

65. There may, of course, be another reason for Section 202, but if so I am unaware of it.

66. One other concern might arise from 18 U.S.C. § 2511(2)(f), which provides in

relevant part that ‘‘procedures in [Title III] or [the Stored Communications Act, 18

U.S.C. §§ 2701–2712] and the Foreign Intelligence Surveillance Act of 1978 shall be

the exclusive means by which electronic surveillance, as described in [50 U.S.C.

§ 1801], and the interception of domestic wire, oral, and electronic communications

may be conducted.’’ FISA’s broad definition of ‘‘contents’’ means that its definition

of ‘‘electronic surveillance’’ is correspondingly broad, see 50 U.S.C. § 1801(f)(1)–(3),

and includes pen-trap surveillance. This might give rise to the concern that Section

2511(2)(f) forbids criminal pen-trap surveillance because it provides that FISA and

Title III are the ‘‘exclusive means’’ for conducting such surveillance. In other contexts, however, the courts of appeals have rejected arguments that Section 2511(2)(f)

forbids domestic law enforcement investigative conduct that is ‘‘electronic surveillance’’ under FISA but not under Title III. See, e.g., United States v. Koyomejian,

970 F.2d 536. 540–541 (9th Cir. 1992) (en banc) (silent video surveillance, which is

‘‘electronic surveillance’’ as defined by FISA but is not regulated by Title III, may

be conducted against domestic, criminal targets without following either FISA or

Title III). This is a very complex area, in which I may not know all the relevant

facts, but in any event, my sense is that if an amendment is needed, the provision

to be amended should be 18 U.S.C. § 2511(2)(f), not FISA.

67. See 50 U.S.C. § 1841(2) (FISA pen-trap devices defined by cross-reference to

criminal pen-trap statute), 18 U.S.C. § 3127(3)–(4) (criminal pen-trap surveillance

may not intercept ‘‘contents’’), 18 U.S.C. § 3127(1) (defining ‘‘contents’’ for criminal

pen-trap statute by cross-reference to Title III), 18 U.S.C. § 2510(8) (defining ‘‘contents’’ in Title III as ‘‘any information concerning the substance, purport, or meaning of [a] communication’’).

68. 18 U.S.C. § 2510(8).

69. See Electronic Communications Privacy Act (ECPA), Pub. L. 99–508,

§ 101(a)(5), 100 Stat. 1848, amending 18 U.S.C. § 2510(8); see also ECPA Senate Report at 13–14.

70. 50 U.S.C. §§ 1842(a)(1), (a)(2).

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71. As a technical drafting matter, the bill should specify that the change pertains

to the second use of the word ‘‘for’’ in the provision.

72. There are similar First Amendment provisions in other parts of FISA. See 50

U.S.C. §§ 1805(a)(3)(A), 1824(a)(3)(A) (‘‘no United States person may be considered

* * * an agent of a foreign power solely upon the basis of activities protected by

the first amendment to the Constitution of the United States’’). (The electronic surveillance version of this standard applies to foreign powers and agents of foreign

powers; the physical search version applies only to agents of foreign powers. I doubt

the omission was intentional.) See also 50 U.S.C. § 1842(a)(1), (c)(2), 1843(a), (b)(1)

(similar provisions for pen-trap surveillance).

73. 50 U.S.C. § 1861(d).

74. 334 F. Supp.2d 471 (S.D.N.Y. 2004).

75. 18 U.S.C. § 2709. Section 2709 provides that ‘‘[a] wire or electronic communication service provider shall comply with a request for subscriber information and toll

billing records information, or electronic communication transactional records in its

custody or possession made by the Director of the Federal Bureau of Investigation.’’

18 U.S.C. § 2709(a). It also provides that ‘‘[n]o wire or electronic communication

service provider, or officer, employee, or agent thereof, shall disclose to any person

that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.’’ 18 U.S.C. § 2709(c).

76. 334 F. Supp.2d at 514.

77. Id.

78. The Department of Justice is apparently of the same view. See Baker House

Testimony at 3–4 (‘‘some criticisms of section 215 have apparently been based on

possible ambiguity in the law. The Department has already stated in litigation that

the recipient of a section 215 order may consult with his attorney and may challenge that order in court. The Department has also stated that the government may

seek, and a court may require, only the production of records that are relevant to

a national security investigation, a standard similar to the relevance standard that

applies to grand jury subpoenas in criminal cases. The text of section 215, however,

is not as clear as it could be in these respects. The Department, therefore, is willing

to support amendments to Section 215 to clarify these points.’’).

79. See, e.g., Los Angeles Police Dep’t v. United Reporting Publishing Co., 528 U.S.

32, 37–39 (1999) (explaining First Amendment overbreadth doctrine); cf. United

States v. Salerno, 481 U.S. 739, 745 (1987) (‘‘The fact that [a statute] might operate

unconstitutionally under some conceivable set of circumstances is insufficient to

render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment’’).

80. See, e.g., Executive Order 12958 (as amended).

81. See, e.g., Snepp v. United States, 444 U.S. 507, 510 n.3 (1980).

82. 50 U.S.C. §§ 1801(h), 1805(a), 1805(c)(2)(A), 1821(4), 1824(a), 1824(c)(2)(A).

83. Executive Order 12333 § 2.3; see also id. § 1.14. The intelligence elements of

the FBI are in the intelligence community. Id. § 3.4(f)(6).

84. Baker House Testimony at 3 (‘‘The Attorney General also recently declassified

the fact that the FISA Court has issued 35 orders under section 215 from the effective date of the Act through March 30th of this year. The Attorney General also declassified the types of business records sought by these orders. They include driver’s

license records, public accommodation records, apartment leasing records, credit

card records, and subscriber information, such as names and addresses, for telephone numbers captured through court-authorized pen register devices. None of

those orders were issued to libraries and/or booksellers, or were for medical or gun

records.’’).

85. I have not reviewed Section 212 word-by-word against the current postal regulations.

86. I was recently made aware of a November 19, 2004 letter from Attorney General Ashcroft to the Postmaster General, in which the Attorney General asked the

Postmaster General to amend the mail regulations. The requested changes were not

made.

87. Compare 39 C.F.R. § 233.3(c)(1)(i) and (9)(i)-(iii), with 50 U.S.C. § 1801(e)(1).

88. 39 C.F.R. § 233.3(c)(3)(8).

89. 39 C.F.R. § 233.3(e)(3).

90. 39 C.F.R. § 233.3(e)(2)(i).

91. 39 C.F.R. § 233.3(g)(5)-(6).

92. 39 C.F.R. § 233.3(g)(8).

93. Under 39 U.S.C. § 201, the Postal Service is ‘‘an independent establishment

of the executive branch.’’ For a discussion of the status and corporate governance

structure of the Postal Service, see United States Postal Service v. Flamingo Industries (USA) Ltd., 540 U.S. 736, 740 (2004).

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94. The current guidelines for national security investigations issued under Executive Order 12333 are classified in part. See www.usdoj.gov/olp/nsiguidelines.pdf

and www.usdoj.gov/olp/nsifactsheet.pdf. An earlier version of these guidelines,

issued in May 1995, is also classified in part. See www.usdoj.gov/ag/readingroom/

terrorismintel2.pdf.

95. 50 U.S.C. §§ 1861–1862.

96. 18 U.S.C. § 3486.

97. 21 U.S.C. § 876 (‘‘In any investigation relating to his functions under this subchapter with respect to controlled substances, listed chemicals, tableting machines,

or encapsulating machines, the Attorney General may subpoena witnesses, compel

the attendance and testimony of witnesses, and require the production of any

records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material

to the investigation.’’). For what appears to be a truly comprehensive list of administrative subpoena authorities held by Executive Branch entities, see United States

Department of Justice, Office of Legal Policy, Appendices A, B & C Accompanying

Report to Congress on the Use of Administrative Subpoena Authorities by Executive

Branch Agencies and Entities Pursuant to Public Law 106–544, available at

www.usdoj.gov/olp/appendixal.pdf, www.usdoj.gov/olp/appendixa2.pdf, www.usdoj

.gov/olp/appendixb.pdf, and www.usdoj.gov/olp/appendixc.pdf.

98. See United States Department of Justice, Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities Pursuant to Public Law 106–544, Table I at 40–41, available at

http://www.usdoj.gov/olp/intro.pdf (hereinafter DOJ Administrative Subpoena Report).

99. Between October 26, 2001, and January 21, 2003, the FBI issued what appears to be several hundred national security letters, although the precise number

is apparently classified. See www.aclu.org/patriot foia/FOIA/NSLLists.pdf.

100. DOJ Administrative Subpoena Report at 41 (noting delegation from Attorney

General to FBI Director of authority to issue subpoenas under 18 U.S.C. § 3486 in

investigations of child sex abuse).

101. See Kris House Testimony at 16–18.

102. See 50 U.S.C. § 1808(a)(2)(A) (semi-annual report shall describe ‘‘each criminal case in which information acquired under this Act has been passed for law enforcement purposes during the period covered by such report’’). See also 50 U.S.C.

§ 1806(b) (‘‘No information acquired pursuant to this subchapter shall be disclosed

for law enforcement purposes unless such disclosure is accompanied by a statement

that such information, or any information derived therefrom, may only be used in

a criminal proceeding with the advance authorization of the Attorney General.’’).

103. Under 50 U.S.C. § 1808(a)(2)(B), the semi-annual report must include a description of ‘‘each criminal case in which information acquired under this chapter

has been authorized for use at trial during such reporting period.’’

STATEMENT OF DAVID S. KRIS, FORMER ASSOCIATE DEPUTY

ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. KRIS. Yes. Chairman Roberts, Vice Chairman Rockefeller,

thank you very much for the opportunity to testify about your draft

bill. I am speaking this morning as a private citizen and for myself

only. But as a former government lawyer I would like to begin by

joining the Department of Justice in applauding the bill. I think

several provisions of it will help to keep us safe.

For example, the renewal of several provisions from the Patriot

Act is, in my view, a good idea about which I know you’ve heard

a lot.

My written testimony singles out two PATRIOT Act provisions,

the ones pertaining to the FISA wall, Section 218, and the one pertaining to FISA roving surveillance, where I think I’ve made some

observations that may not be obvious and may be helpful to you.

I also applaud the bill as a private citizen and one who cares

about and values privacy and civil liberties. There are a couple of

provisions in the bill worthy of mention in that regard—section 211

which expands the disclosure rights and the reporting obligations

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for FISA tangible things orders; and section 213, which, in authorizing administrative subpoenas, also specifically provides for motions to quash such subpoenas filed by the recipients either in their

local U.S District Courts or even in the Foreign Intelligence Surveillance Court. Actually, I have to say that that, in my view, is

a questionable provision although it is protective of civil liberties,

I think.

At some sort of basic level it seems to me pretty clear that the

Department and the FBI need to have the authority to compel the

production of documents and other things in national security investigations, whether it be by National Security Letters or tangible

things orders or administrative subpoenas, just as they have corresponding authority by administrative subpoena or grand jury

subpoena in criminal cases.

The question, it seems to me, is under what circumstances and

what conditions will that authority be exercised? And just in sitting

here listening to the dialog I sort of sketched out what I think are

five or six factors that might or might not be applied to the exercise

of administrative subpoena power.

There is first the requirement for high level executive branch approval before such a subpoena could be issued; a requirement for

a submission or a certification by an applicant in front of a judicial

officer; advance judicial review, either substantive—looking at the

certification and questioning it or procedural—making sure that

the certification has all the required elements. There would be consultation rights and nondisclosure rules governing recipients. And

then finally there would be the possibility of after-the-fact judicial

review, either in a motion to quash by the recipient or maybe in

some kind of ratification by a court of the administrative subpoena

in the same way that FISA emergency orders are ratified after the

fact.

So those it seems to me are the factors. And this bill it seems

to me is aiming for a balanced approach to the question of granting

authority but also conditioning it in appropriate ways. At a minimum, it strikes me as a good place to begin the dialog.

One other thing that I think is worth thinking about in considering the administrative subpoena provisions and the other provisions in this bill: it is not just a question of whether the government as a whole should have this power or should not have this

power under certain conditions. I think it’s also a question of which

parts of the government have the power, because in a bureaucracy

as big as the executive branch, every time you grant power to one

part you change the way it relates to the others.

And in my view, it is important to grant the authority here to

the Attorney General, for two reasons—first to reaffirm once again

that the Attorney General is, in fact, in charge both of DOJ proper

and of the FBI, and also because I think it is important as we go

forward, sort of emerging from the shadow of the FISA wall, to encourage wherever possible the interaction of agents and lawyers,

whether they be prosecutors or other lawyers, within the Department of Justice.

And so I think the Attorney General ought to have the authority

to delegate this power of administrative subpoenas, if it’s granted,

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to whomever he or she believes is the appropriate recipient, maybe

with some floor set by statute.

For example, right now there is a discussion I believe, according

to the New York Times, about whether to create a national security

division within the Department of Justice. And if such a division

were created the Attorney General might well choose to delegate

this power to the assistant attorney general for that division rather

than to the Director. So I think the statute should give the Attorney General that authority.

And now I would obviously be happy to answer any of your questions.

Chairman ROBERTS. We thank you for your testimony, Mr. Kris.

Mr. Onek.

[The prepared statement of Mr. Onek follows:]

PREPARED STATEMENT OF JOSEPH ONEK

Mr. Chairman, Senator Rockefeller, Members of the Committee. I greatly appreciate this opportunity to testify on the pending proposals to extend and amend provisions of the Patriot Act and the Foreign Intelligence Surveillance Act. The Patriot

Act and FISA are important tools in the fight against terrorism, but both raise significant civil liberties issues. We therefore need to subject them to careful and continuing scrutiny.

ADMINISTRATIVE SUBPOENAS

The draft legislation proposes to amend FISA by providing for administrative subpoenas in national security investigations. Administrative subpoenas are now used

in many types of investigations, and the government asks why they shouldn’t also

be used by the FBI in the fight against terrorism. But the government ignores some

very crucial facts.

First, administrative subpoenas are typically used for discrete purposes and to obtain limited types of records. But here the subpoenas would be seeking records relating to foreign intelligence and terrorism. The range of activities that relate foreign intelligence and terrorism is enormous and, therefore, there is virtually no

limit to the type of records the FBI will be able to subpoena. The FBI will seek financial records, employment records, transportation records, medical records and

yes, sometimes, library records. The collection of this massive array of records creates special problems. Inevitably, FBI investigations will sweep up sensitive information about innocent, law-abiding people. How do we assure this information is

not abused? The FBI will also sweep up information about people who have nothing

whatsoever to do with terrorism but who may have committed other infractions,

both minor and major. What will the FBI do with this information? Should it use

the information in criminal prosecutions or other proceedings unrelated to terrorism? Does it make any difference that a highly disproportionate amount of this

information will be collected about people who (quite naturally and innocently) happen to write, visit and send money to places such as Pakistan and Iraq?

I am not suggesting that the Committee now address these complex privacy and

profiling issues. But I do believe the Committee should keep these issues in mind

as it considers whether to give the FBI essentially unlimited subpoena authority.

There is a second crucial difference between the ordinary use of administrative

subpoenas and proposal before the Committee. As set forth in the draft, the FBI’s

subpoenas must be kept completely secret whenever the FBI says that national security requires non-disclosure. This means that a record holder who receives a subpoena that is overbroad or impinges on first amendment rights will not be able to

complain to the press, the Congress or the public.

This is not an insignificant disadvantage. Just last year, a Federal prosecutor in

Iowa served grand jury subpoenas on Drake University and members of the university community in connection with a peaceful antiwar forum. The university community protested loudly, the press took up the controversy, and the subpoenas were

promptly withdrawn. This cannot happen when the subpoenas are secret.

If subpoenas covering a vast array of records are going to be served in secret,

there must be additional safeguards. The most obvious safeguard is prior judicial

approval, such as is provided, however inadequately, in Section 215 of the Patriot

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Act. We should not permit, for the first time in our history, the massive use of secret

subpoenas that have not been approved by a judge.

I recognize that the proposed draft provides record holders with the opportunity

to challenge any subpoena in Federal court. But this opportunity is no substitute

for prior judicial approval. Third party record holders will generally have no incentive to undertake the burdens of a Federal court challenge, and the secrecy provisions further reduce the likelihood of a challenge. If, for example, a hospital receives

a subpoena for a massive number of medical records and the subpoena is made public, the medical staff and patient groups might pressure the hospital to file a challenge. There will be no such pressure with a secret subpoena. Thus, there will be

little judicial supervision of the FBI’s use of secret subpoenas.

The FBI should be required to obtain a court order when it seeks access to business records. I believe the current standards for issuing such orders, as set forth

in Section 215 of the Patriot Act, should be tightened along the lines suggested by

the SAFE Act. Subpoena power should be limited to records involving or pertaining

to an ‘‘agent of a foreign power’’ as defined in FISA. But in any event there must

be a requirement for judicial approval. Such a requirement imposes a salutary discipline on the government. It forces the government to think through and describe,

in the words of Deputy Attorney General Comey, the ‘‘meaningful, logical connection

between the record sought and the subject of the investigation.’’ If the government

believes that obtaining a court order is too slow in certain circumstances, it should

propose procedures for the prompter handling of urgent requests.

In sum, I believe the Committee should not go forward with the proposal for new

subpoena authority for the FBI. But if the Committee does go forward, it should

clarify and improve certain provisions.

Section 808(a)(3)(b), providing for judicial review, states that upon the government’s request the court ‘‘shall’’ receive government submissions ex parte and in

camera. Of course, there may be a need for the government to submit classified information to the court ex parte and in camera. But under the section as written the

government could make a submission to the court without even notifying the opposing party of that fact and without disclosing those portions of its submission, such

as discussions of legal precedents, that do not require special protection. This section should be modified to grant the court discretion to assure that, as in the Classified Information Procedures Act, both the government’s interest in protecting national security and the private party’s interest in a fair hearing are appropriately

accommodated.

Section 808(d), Standard of Review, is ambiguously worded. The standard for

court modification of a subpoena is whether compliance would be ‘‘unreasonable or

oppressive’’, while the standard for setting aside a subpoena is ‘‘abuse of discretion.’’

What is the relationship between the two standards? Can there be an unreasonable

or oppressive subpoena that does not constitute an abuse of discretion? Can there

be an abuse of discretion based on other factors?

MAIL COVERS

In addition to granting the FBI new subpoena power, the draft legislation proposes to amend FISA to authorize the FBI to request mail covers from the Postal

Service. As with the subpoena power, it is not clear why this new authority is necessary. The FBI already has the ability to request mail covers under Postal Service

regulations.

Perhaps, however, this is an opportunity to make the laws regulating FBI investigations more coherent. Mail covers are conceptually similar to the pen registers

and trap and trace devices that are presently regulated by Title IV of FISA. Why

shouldn’t they be treated in a similar fashion under FISA? This would require the

FBI to obtain a court order for mail covers. As you know from previous Committee

hearings, there is some dispute about the standards for the issuance of pen register

and trap and trace orders. I will not go into that here. The crucial point is that

there should be some judicial supervision and some coherence in the law.

LONE WOLF

The Committee draft repeals the sunset of the ‘‘Lone Wolf ’’ provision that was enacted just a few months ago. I believe the ‘‘Lone Wolf ’’ provision may well be unconstitutional and that, in light of criminal surveillance authorities, it is unnecessary.

The Committee has not yet received the government’s first report on the provision

and cannot have an adequate record as to how the provision has been used and

whether alternative surveillance authorities were available. I suggest, therefore,

that the current sunset requirement be extended until December 31, 2007. This will

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give the Committee and the Congress a better opportunity to assess the need for

the provision.

OTHER FISA ISSUES

Section 203 of the Committee’s draft amends FISA by stating that ‘‘foreign intelligence information’’ includes information relating to national security criminal prosecutions. Once again, I am not sure why this amendment is necessary, since there

is widespread agreement that the ‘‘wall’’ no longer exists. But the amendment does

underscore the very significant fact that today an increasing number of criminal

cases involve the use of FISA evidence. This requires a re-examination of whether

current procedures for the use of FISA evidence in criminal cases are fair.

As Jim Dempsey testified before this Committee in April, criminal defendants in

most cases can obtain access to the affidavit that served as the basis for the wiretap

order or search warrant and thus can challenge the basis for the wiretap or search

in an adversarial proceeding. By contrast, defendants in FISA cases have never

been granted such access and have never had a meaningful opportunity to challenge

the basis for the search. Congress should assure that normal criminal adversary

procedures apply when FISA evidence is used against individuals, with appropriate

use of the Classified Information Procedures Act to protect government interests.

There is another problem with FISA that has not been adequately addressed.

Under FISA, the government can obtain an order to conduct secret searches of any

home or office. Unlike the ‘‘sneak and peek’’ searches authorized in Section 213 of

the Patriot Act, these searches remain secret forever unless the government chooses

to disclose them or there is a criminal trial involving evidence seized during the

search. This means that innocent Americans have had, and will have, their most

intimate records and belongings searched by the government without ever being informed of the search. Similarly, although Title III wiretaps are ultimately disclosed,

FISA wiretaps are not.

I believe that FISA should be amended to assure that individuals are informed

they have been subject to a secret FISA search or wiretap unless there are valid

national security grounds to continue the secrecy. In cases where there has been a

secret search or wiretap but no disclosure of that fact in a criminal trial the government should be required to periodically file a motion with the FISA court requesting

and justifying continued non-disclosure.

CONCLUSION

In concluding, I would like to commend the Committee for its attention to congressional oversight, including the reporting requirements contained in the draft

legislation. Congressional oversight is crucial and must be pursued vigorously. But

executive branch accountability requires more than congressional oversight; it requires judicial oversight and as much openness as is consistent with national security. When, as in terrorism investigations, a high degree of secrecy is warranted, a

meaningful role for the judiciary becomes all the more important. The Committee

should not eviscerate that role by granting broad subpoena power to the FBI.

STATEMENT OF JOSEPH ONEK, SENIOR POLICY ANALYST,

OPEN SOCIETY INSTITUTE, AND SENIOR COUNSEL, CONSTITUTION PROJECT

Mr. ONEK. Thank you, Chairman Roberts, Vice Chairman Rockefeller, members of the committee.

I’d like to begin, if I may, by talking about the Lone Wolf provision because I think it may get lost in the shuffle. This provision

was not passed 31⁄2 years ago; it was passed just a few months ago.

Yet the draft legislation would repeal the sunset for it. And I think

this may be a good example of what Senator Rockefeller had described earlier of a provision where the sunset should clearly be extended.

I happen to believe that the Lone Wolf provision may be unconstitutional and that, in light of other criminal surveillance authorities, it’s unnecessary.

But the crucial point is that this Committee has not yet received

the government’s first report, because the 6-month period isn’t up

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yet, on this provision. The Committee can’t have an adequate

record as to how often or when the provision has been used and

whether alternative surveillance authorities are available.

So I think this is the perfect occasion, certainly, to take up Senator Rockefeller’s suggestion about these provisions. And in this

case I think it’s clear the sunset provision should be extended for

3 or 4 years. This would give the Committee and the Congress a

better opportunity to assess the need for the Lone Wolf provision.

I’d like to turn to administrative subpoenas. There’s been a discussion of how often they’ve been used in other contexts. There’s

also already been a discussion about the fact that here we’re dealing with a much, much broader array of records. Indeed, because

we’re investigating foreign intelligence and terrorism, there’s essentially no limit on the kinds of records that can be subpoenaed. And

I think this raises all sorts of privacy and profiling issues, which

I’d be glad to discuss in the questioning.

But there’s another difference between these subpoenas and the

other uses of administrative subpoenas. These are going to be

largely secret. That means that the recipient can’t complain to the

press, can’t complain to the public, can’t complain to the Congress.

And this isn’t insignificant. Just last year in Iowa, a Federal

prosecutor requested records from Drake University and members

of the community in connection with a peaceful antiwar forum. The

university community got up in arms and protested. The press took

up the controversy. And the subpoenas were withdrawn 3 days

later. Now, that just can’t happen when the subpoenas are secret.

So if you’re going to have secret subpoenas, I think there have

to be additional safeguards. And the obvious and best safeguard is

prior judicial approval, as is provided, for example, in Section 215.

Now there can be an exception for emergency cases, as Senator

Feinstein suggested, and FISA already has exceptions in Title I

and Title III for emergencies.

But never in our history, I don’t believe, has there ever been a

situation where there’s been massive use of secret subpoenas without prior judicial approval. This is a totally new thing. All the

other subpoenas they’re talking about are not secret, and the people who get them have a chance to complain about them.

This is a very different situation. You’d be creating, for the first

time in our history, a regime of mass secret subpoenas, because I’m

sure this is going to be used a great deal. Most of the time they

will be secret. And under those circumstances I think prior judicial

approval is required.

Post-judicial approval won’t work. Ms. Caproni was very candid

with this Committee when she pointed out that very few thirdparty record-holders ever move to quash a subpoena. She was very

clear on that. So I don’t think that post-hoc judicial review is going

to take place. It just ain’t going to happen.

And by the way, it’s going to happen even less because of the secrecy. For example, if you subpoena hospital records and was public, maybe the patient groups and the medical staff would pressure

the hospital into challenging the subpoena. But if it’s a secret subpoena and, as in this legislation, the hospital has immunity from

giving the records over, its just going to give them over.

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So after-the-fact judicial review is not going to happen. This is

a classic case where we should have judicial approval. If you’re

going to have vast numbers of secret subpoenas, the real safeguard

you must have is prior judicial approval as in Section 215. I happen to believe that the standard in Section 215 should be tightened. We can, of course, discuss that in the question-and-answer

period.

Thank you.

Chairman ROBERTS. We thank you for your testimony, sir.

Mr. Collins.

[The prepared statement of Mr. Collins follows:]

PREPARED STATEMENT OF DANIEL P. COLLINS

Chairman Roberts, Vice-Chairnian Rockefeller, and Members of the Committee, I

am grateful for the opportunity to testify before you today. Three and one-half years

ago, the USA PATRIOT Act was signed into law by President Bush with overwhelming support in both Houses of Congress. See Pub. L. No. 107–56, 115 Stat.

272 (Oct. 26, 2001). That strong bipartisan consensus reflected the gravity and importance of the chief objective of that legislation, which was set forth right in the

title: ‘‘providing appropriate tools required to intercept and obstruct terrorism.’’ As

the horrific events of September 11 demonstrated, there are few priorities more

pressing than detecting and preventing terrorist attacks. It is critical that the men

and women whose job it is to protect us have the tools they need to get that job

done, and to get it done in a manner that both enhances security and respects liberty.

However, as the Committee is well aware, several provisions of Title II of the PATRIOT Act are scheduled to expire on December 31, 2005, absent action by Congress. Id., § 224(a), 115 Stat. at 295. Under Section 101 of the draft legislation that

is the subject of this hearing, nine of the PATRIOT Act provisions that are currently

subject to sunset would be made peiivanent. See Section 101 (repealing the sunset

of sections 203(b), 203(d), 204, 206, 207, 214, 215, 218, and 225 of the PATRIOT

Act). I agree that these nine provisions should be made permanent. Today, as in

2001, they are ‘‘appropriate tools’’ in the war on terror.

My perspective on these matters is informed by my service over the years in various capacities in the Justice Department. Most recently, I served from June 2001

until September 2003 as an Associate Deputy Attorney General (‘‘ADAG’’) in the office of Deputy Attorney General Larry Thompson. During the same period, I also

served as the Department’s Chief Privacy Officer, and in that capacity, I had the

responsibility for coordinating the Department’s policies on privacy issues. I also

served, from 1992 to 1996, as an Assistant United States Attorney in the Criminal

Division of the U.S. Attorney’s Office for the Central District of California in Los

Angeles. And prior to that, I had served from 1989 to 1991 as an Attorney-Advisor

in the Office of Legal Counsel in Washington, D.C. I am now back in private practice in Los Angeles, and I emphasize that the views I offer today are solely my own.

Before turning to the nine relevant PATRIOT Act provisions that are up for ‘‘sunset’’ review by this Committee, I think it is useful to outline some of the basic principles that should guide an analysis of these provisions. The overarching question

whether a particular surveillance authority is an ‘‘appropriate tool’’ ultimately turns

on whether that tool assists in detecting and preventing terrorism, and whether it

does so in a manner that preserves and enhances privacy. In making that judgment,

it is important not to fall into the fallacy of ‘‘zero-sum’’ thinking, whereby every expansion of government surveillance authority is somehow deemed inherently to represent a loss of privacy. This sort of thinking does not make much sense either from

a national security perspective or from a civil liberties perspective. The question instead is whether the conditions placed on the availability and use of a particular

tool are sufficient to permit it to be deployed effectively when warranted, but only

in a manner that is respectful of privacy and basic civil liberties.

Beyond that very general statement, there is, I think, general agreement on a

number of more specific principles that help to inform any judgment about the propriety and adequacy of the conditions place upon the use of a particular tool:

• Unwavering fidelity to the Constitution. Privacy is a cherished American right.

Among the various ways in which the Constitution protects that right, the Fourth

Amendment specifically reaffirms the right of the people to be free from unreasonable searches of their ‘‘houses, papers, and effects.’’ Our laws must scrupulously reVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00216 Fmt 6633 Sfmt 6621 C:\INTELL\24983.TXT CarolB PsN: CarolB
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spect the limits established by the Constitution. As many have said, we have to

think outside the box, but not outside the Constitution. But while the Constitution

sets the minimum, our laws have long properly reflected the judgment that, from

a policy perspective, there should be additional statutory protections for privacy. I

do not question that judgment.

• Not all privacy interests are the same. Not all privacy interests are of the same

magnitude, and it makes no policy sense to act as if they were. For example, some

categories of information are more important and more sensitive than others. The

fact that the supermarket club could maintain a computerized stockpile of information about my personal buying habits may raise a privacy concern, but it is not on

the same level as someone eavesdropping on my phone conversations or reading my

medical records. The nature and severity of the privacy intrusion at issue are certainly important factors to consider.

• Privacy is not always the most important value. It is essential to keep in mind

that, while privacy is an important right, it is by no means the only important

value. Human society, by its very nature, involves some loss of personal privacy.

Competing concerns raised by new technology may also justify particular intrusions

on privacy: no one can deny that airport inspections are essential to public safety,

regardless of the cost to privacy.

• If it’s good enough for fighting the mob, it’s good enough for fighting terrorism.

Any tool that is already available to fight any other type of crime—be it racketeering, drug trafficking, child pornography, or health care fraud—should be available for fighting terrorism, and should have an appropriate analog in the foreign

intelligence context. If the judgment has already been made that the tool is appropriate for fighting these other crimes, and that any privacy interests at stake must

yield to that effort, then surely the tool should also be available to fight terrorism.

• The law of inertia must not be a principle of privacy policy. It does not make

much sense to perpetuate outmoded ways of doing things simply because it has always been done that way. As times and technologies change, the judgments that are

reflected in existing statutory rules may need to be re-evaluated.

• The importance of technological neutrality. In applying privacy principles to new

and emerging technologies, an important benchmark is the concept of ‘‘technological

neutrality.’’ The idea is that, just because a transaction is conducted using a new

technology, there should not have to be a loss of privacy when compared to similar

transactions using older technologies. To use an example, the privacy protection for

ordinary email should be roughly equivalent to that of an ordinary postal letter.

Conversely, the emergence of new technologies should not provide foreign agents

with new ways to thwart legitimate and legally authorized foreign intelligence activities. The notion of technological neutrality takes into account both sides of the

coin.

With these basic principles in mind, let me explain why I think each of the nine

pertinent sections of the PATRIOT Act that would be made permanent by Section

101 of the proposed legislation are ones that properly enhance the abilities of intelligence officials in a manner that respects and preserves our freedoms.

(1)-(2) SECTIONS 203(b) AND 203(d)

These provisions, which authorize certain forms of information sharing between

law enforcement officers and intelligence officials, are among the most important in

the PATRIOT Act.

Specifically, section 203(b) authorizes the sharing of Title III wiretap information

with intelligence and national security officials, subject to several conditions: (1) the

information must have been obtained ‘‘by any means authorized by this chapter,’’

i.e., in accordance with the strict requirements of Title III; (2) the information to

be shared must ‘‘include foreign intelligence or counterintelligence’’ or ‘‘foreign intelligence information’’ as those terms are specifically defined by the relevant statutes;

(3) the information may only be used by such official ‘‘as necessary in the conduct

of that person’s official duties’’; (4) any such official must also comply with ‘‘any limitations on the unauthorized disclosure of such information’’; and (5) to the extent

the information ‘‘identifies a United States person,’’ the disclosure must comply with

statutorily mandated guidelines issued by the Attorney General. See Pub. L. No.

107–56, § 203(b), (c), 115 Stat. at 280–81.

Section 203(d) more generally authorizes sharing of information ‘‘obtained as part

of a criminal investigation,’’ subject to the following restrictions: (1) the information

to be shared must comprise ‘‘foreign intelligence or counterintelligence’’ or ‘‘foreign

intelligence information’’ as those terms are specifically defined by the relevant statutes; (2) the information may only be used by such official ‘‘as necessary in the conduct of that person’s official duties’’; and (3) any such official must also comply with

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‘‘any limitations on the unauthorized disclosure of such information.’’ See Pub. L.

No. 107–56, § 203(d), 115 Stat. at 281.

As the 9/11 Commission and others have noted, the need for appropriate sharing

of information between law enforcement and intelligence officials is absolutely critical to detecting and preventing terrorism. Moreover, the safeguards imposed by section 203(b) and section 203(d) seem properly tailored to ensure that law enforcement

officials will only share information that qualifies as ‘‘ foreign intelligence or counterintelligence’’ or ‘‘foreign intelligence information’’ and will do so only subject to

appropriate restrictions. It must be emphasized that these modest provisions do not, as some critics have wrongly claimed, put the CIA in the business of ‘‘spying on

Americans.’’ By definition, all information subject to sharing under sections 203(b)

and 203(d) has been obtained by the lawful investigative activities of law enforcement officials either under Title III or ‘‘as part of a criminal investigation.’’

(3) SECTION 204

Section 204 is a largely technical amendment that clarifies the relationship between the authorities under the criminal statute governing ‘‘pen registers’’ and

‘‘trap-and-trace’’ devices and the authorities under otherwise applicable Federal law

concerning certain foreign intelligence activities. Pub. L. No. 107–56, § 204, 115

Stat. at 281. I am not aware of an substantial reason why this provision should not

be made permanent.

(4) SECTION 206

Section 206 of the PATRIOT Act addresses the subject of so-called ‘‘roving wiretaps’’ under the Foreign Intelligence Surveillance Act of 1978 (‘‘FISA’’). In my view,

section 206 strikes an appropriate balance on this subject and should be preserved.

Under the current version of Section 105(c)(1)(B) of FISA, a FISA order authorizing electronic surveillance only needs to specify the nature and location of each

such facility or place ‘‘if known.’’ 50 U.S.C. § 1805(c)(1)(B). Notably, the addition of

the phrase ‘‘if known’’ was not made by the PATRIOT Act, but rather by the Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107–108, § 314(a)(2)(A),

115 Stat. 1394, 1402 (2001); that amendment is therefore not subject to the PATRIOT Act’s sunset provision. Although current law thus dispenses with a specification requirement when the exact nature and location of the facilities or places are

not known in advance, the existing version of Section 105(a)(3)(B) continues unambiguously to State that an authorizing order may only be issued if, inter alia, ‘‘there

is probable cause to believe that . . . each of the facilities or places at which the

electronic surveillance is directed is being used, or is about to be used, by a foreign

power or an agent of a foreign power.’’ 50 U.S.C. § 1805(a)(3)(B). Reading these provisions together, it would seem clear that, even when it cannot be specified in advance what are the particular facilities and places that will be surveilled, the Government must nonetheless provide a sufficient description of the categories of facilities and places that will be surveilled (presumably by describing their connection

to the target) so as to permit the court to make the finding that remains required

by Section 105(a)(3)(B).

The pertinent change made by Section 206 of the PATRIOT Act was merely to

eliminate the requirement that the authorizing order in all cases specify in advance

those third parties (e.g., wire carriers) who were directed to supply assistance in carrying out the order. See Pub. L. No. 107–56, § 206, 115 Stat. at 282 (amending 50

U.S.C. § 1805(c)(2)(B)). Instead, the PATRIOT Act states that, if the court finds that

‘‘the actions of the target of the application may have the effect of thwarting the

identification of a specified person,’’ the order may require the cooperation of other

such persons who have not been specified. Id. This modest change makes perfect

sense: the prior third-party-assistance specification requirement had the obvious potential to allow targets to defeat surveillance simply by changing, for example, from

one cell phone to another. Indeed, it is hard to see why one would want to allow

this specific amendment to sunset: there is no apparent advantage to requiring the

Government to go back to the FISA Court merely because the target has shifted

from one wire service provider to another.

Some have called for making the roving wiretap provisions of FISA more analogous to those for ordinary criminal roving wiretaps in Title III. Under 18 U.S.C.

§ 2518(11), the requirement in δ 2518(1)(b)(ii) to provide a ‘‘particular description of

the nature and location of the facilities from which or the place where the communication is to be intercepted’’ does not apply if, inter alia, the application ‘‘identifies

the person believed to be committing the offense.’’ Setting aside the issue about

what the ‘‘identification’’ requirement thus imposed by Title III requires here, the

apparent intent of these critics of Section 206 is that FISA should mimic § 2518(11)

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by imposing an identification requirement in any case in which the requirement to

specify particular places has been waived. The analogy, however, is flawed, because

of a crucial difference between δ 2518(11) and Section 105 of FISA.

In addition to waiving the specification-of-places requirement in § 2518(1)(b)(ii),

the roving wiretap provision of Title III also waives the requirement in § 2518(3)(d)

that the court must first find probable cause to believe that ‘‘the facilities from

which, or the place where, the wire, oral, or electronic communications are to be

intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or common used by [the

target].’’ See 18 U.S.C. § 2518(11) (stating that the ‘‘requirements of subsections

(1)(b)(ii) and 3(d) of this section relating to the specification of the facilities from

which, or the place where, the communication is to be intercepted do not apply’’ to

roving wiretaps authorized under Title III). As I explained above, FISA’s analog to

§ 2518(3)(d) of Title III is contained in Section 105(a)(3)(B) of FISA, which states

that an authorizing order may only be issued if, inter alia, ‘‘there is probable cause

to believe that . . . each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent

of a foreign power.’’ 50 U.S.C. § 1805(a)(3)(B). It is important to note that nothing

in the roving wiretap provisions of FISA waives this requirement. The apparent effect of that difference is that unlike Title III, a FISA roving wiretap application

must still provide, as I explained earlier, a sufficient description of the categories

of facilities and places that will be surveilled (presumably by describing their connection to the target) so as to permit the court to make the additional probable

cause finding that remains required by Section 105(a)(3)(B). This additional safeguard strikes a different balance from Title III, but an appropriate one, and it

makes any analogy to Title III inapt. That is, in light of FISA’s preservation of this

requirement, the need for a requirement to ‘‘identify’’ the target is doubtful. Indeed,

because it overlooks this crucial additional requirement that only FISA imposes, the

clear effect of incorporating Title III’s restrictions would be to make FISA roving

wiretaps harder to obtain that Title III wiretaps.

(5) SECTION 207

Section 207 extends the time periods for which the FISA Court can initially authorize, and later extend, electronic surveillance and physical searches. See Pub. L.

No. 107–56, § 207, 115 Stat. at 282. Notably, Section 207 only peimits these more

generous time periods to be used with respect to a FISA target who is not ‘‘a United

States person.’’ 50 U.S.C. § 1805(e)(1)(B), (e)(2)(B) (limiting this authority to ‘‘an

agent of a foreign power, as defined in section 1801(b)(1)(A) of this title’’); id.,

§ 1801(b)(1) (stating that the definition in that paragraph applies only to a ‘‘person

other than a United States person’’) (emphasis added). Pre-existing law had already

permitted more generous authorization periods for FISA orders directed at entities,

organizations, and groups that constitute ‘‘foreign powers,’’ 50 U.S.C.

§ 1805(e)(1)(A),(e)(2)(A), and Section 207 properly permits longer authorization periods to also be used only for that subset of agents of foreign powers who are not

United States persons. There seems to be little advantage to allowing this provision

to sunset; the net effect would merely be more paperwork and a diversion of scarce

resources that would be more appropriately deployed on other matters.

(6) SECTION 214

Section 214 is one of several provisions of the PATRIOT Act that properly endeavor to ensure that there will be appropriate analogs, in foreign intelligence investigations, for the various tools that are available to assist law enforcement in criminal

investigations. In particular, Section 214 addresses the use of ‘‘pen registers’’ and

‘‘trap and trace devices,’’ i.e., instruments for collecting information about the address or routing of a communication (e.g., the telephone numbers of outgoing calls

dialed on a telephone and the telephone numbers of incoming calls), but not the content of the communication.

The Supreme Court held long ago that the proper use of a pen register does not

implicate the Fourth Amendment, because there is no reasonable expectation of privacy in the numbers dialed on a telephone—numbers that, by definition, the dialer

has voluntarily turned over to a third party (i.e., the telephone company). Smith v.

Maryland, 442 U.S. 735, 744 (1979). Since 1986, however, Congress has appropriately regulated the use of such devices, requiring (inter alia) an attorney for the

Government to make an application to a court in which the attorney certifies that

the information to be collected is relevant to an ongoing criminal investigation. 18

U.S.C. § 3122(b)(2). Prior to Section 214, FISA analogously allowed the use of pen

registers and trap and trace devices in foreign intelligence investigations, but the

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limitations imposed by FISA on such devices were much more restrictive than in

the criminal context. Specifically, in contrast to the more generous ‘‘relevance’’

standard imposed in criminal cases, FISA limited the use of such devices to situations where the facilities in question have been or are about to be used in communication with ‘‘an individual who is engaging or has engaged in international terrorism or clandestine intelligence activities’’ or a ‘‘foreign power or an agent of a foreign power.’’ 50 U.S.C. § 1842(c)(3) (2000 ed.). Section 214 amended FISA’s standards to permit appropriate use of such devices upon a certification that the device

is likely to obtain (1) ‘‘foreign intelligence information not concerning a United

States person’’ or (2) information that is ‘‘relevant to an ongoing investigation to

protect against international terrorism or clandestine intelligence activities.’’ See

Pub. L. No. 107–56, § 214(a)(2), 115 Stat. at 286. In the latter context, Section 214

provides explicit protection for the First Amendment rights of United States persons. Id.

Under Section 214, the ability to use pen registers and trap and trace devices

under FISA is thus rendered more analogous in scope to its criminal counterpart.

With respect to information concerning a United States person, Section 214 imposes

the same standard of ‘‘relevance’’ to an ongoing investigation, but it also specifies

that the investigation must be one to protect against ‘‘international terrorism’’ or

‘‘clandestine intelligence activities.’’ Given that 18 U.S.C. § 3122 imposes a relevance

standard in all ordinary criminal cases, it is hard to see why that standard is not

sufficient in an intelligence investigation to protect against international terrorism

and clandestine intelligence activities. That is, if relevance to an ongoing investigation is a sufficient basis for authorizing a pen register in, say, a fraud case or a

drug case, why would it not be a sufficient basis for permitting the use of such a

device to investigate international terrorism?

(7) SECTION 215

Section 215 of the PATRIOT Act is another provision designed to ensure that a

tool available to assist law enforcement in ordinary criminal investigations will have

an appropriate counterpart in foreign intelligence investigations. For a very long

time, grand juries have had very broad authority to obtain, by subpoena, records

and other tangible items that may be needed during the course of a criminal investigation. Section 215 provides a narrow analog to such subpoenas in the context of

certain intelligence investigations under FISA. Indeed, in many respects, Section

215 contains more protections than the rules governing grand jury subpoenas:

• A court order is required. 50 U.S.C. § 1861(c).

• The court is not merely a rubber-stamp, because the statute explicitly recognizes the court’s authority to ‘‘modif[y]’’ the requested order. Id., § 1861(c)(1).

• The section has a narrow scope, and can be used in an investigation of a U.S.

person only ‘‘to protect against international terrorism or clandestine intelligence activities.’’ Id., § 1861(a)(1), (b)(2). It cannot be used to investigate domestic terrorism.

• The section provides explicit protection for First Amendment rights. Id.,

§ 1861(a)(1), (a)(2)(B).

The draft bill would make the important clarification that the records may only

be obtained if they are ‘‘relevant’’ to an investigation to protect against international

terrorism or clandestine intelligence activities. See Section 211(a)(1)(A), (2). As I understand it, this amendment would not alter the current understanding of the provision, but would merely eliminate any doubt about whether the relevance standard

is applicable here.

Some have called for a standard that is higher than ‘‘relevance’’ to an investigation, and have instead suggested that a Section 215 order should be granted only

upon a showing of specific and articulable facts giving reason to believe that the

person to whom the records pertain is a foreign power or an agent of a foreign

power. This is much too narrow a standard. Suppose that FBI agents suspected that

an as-yet-unidentified individual foreign agent may have consulted certain specific

technical titles on bomb-making or on nuclear power facilities, and they are informed that 5 persons have checked out those specific titles from public libraries in

the relevant area and time period. Because it cannot be said that there are ‘‘specific

and articulable facts’’ to suspect all 5 persons who checked out the books as all being

foreign agents (the most that can be said is that one of them may be), application

of such a high standard would seemingly require more evidence before any of the

records could be obtained. Even if one were to agree that the general business

records authority in Section 215 might benefit from greater reticulation in the contexts of particular types of records, this particular requirement seems too strict.

Given the various safeguards already in place in Section 215, which adequately take

account of the difference between investigations under FISA and ordinary criminal

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investigations, there is insufficient justification for a standard that is so much more

demanding than the ordinary ‘‘relevance’’ standard that has long governed grand

jury subpoenas in criminal investigations (some of which, like the Versace murder

and Zodiac gunman investigations, did consult library records).

Despite what some of its critics seem to imply, the narrowly drafted business

records provision in Section 215 has no special focus on authorizing the obtaining

of ‘‘library records.’’ On the contrary, because the provision specifically forbids the

use of its authority to investigate U.S. persons ‘‘solely upon the basis of activities

protected by the first amendment to the Constitution,’’ the provision explicitly does

not authorize Federal agents to rummage through the library records of ordinary

citizens. Because I think this language properly addresses a concern that has been

raised about Section 215’s sweep, I would recommend against retaining Section

211(a)(1)(B) of the draft legislation, which would appear to eliminate this clause of

Section 215, i.e., the clause that provides specific protection for first amendment

rights. That is, while I disagree with those who recommend imposing additional significant substantive limitations on Section 215, I would also recommend against

eliminating the substantive safeguards that are currently contained in the provision.

The draft legislation properly declines to create any sort of carve-out for libraries

from the otherwise applicable scope of Section 215: that would simply establish libraries and library computers as a ‘‘safe harbor’’ for international terrorists. Indeed,

over the years, grand juries have, on appropriate occasions, issued subpoenas for library records in connection with ordinary criminal investigations. In my view, a

sensible privacy policy should allow an appropriately limited analog in the FISA

context, and Section 215 is just that.

Section 211(b) of the draft bill would make appropriate and necessary clarifying

changes to Section 215 by specifying that the prohibition on nondisclosure of Section

215 orders is not intended to preclude the recipient of such an order from consulting

with counsel or from requesting permission from the FBI to make other appropriate

consultations (e.g., perhaps consulting an accountant with respect to an order requesting financial records).

Section 211(c) properly establishes additional procedural protections by requiring

the Attorney General to adopt ‘‘minimization procedures governing the retention

and dissemination’’ of any items obtained under a Section 215 order.

The Attorney General, in his testimony before this Committee on April 27, 2005,

indicated that the Department of Justice agreed that a recipient of a Section 215

order could bring a challenge to such an order in court. Section 215 is silent as to

where and how such a review might be carried out, as is the draft bill. I would recommend that specific provisions establishing the proper venue and procedures for

such challenges be set forth in legislation.

(8) SECTION 218

Despite being only one sentence long, Section 218 is one of the most important

provisions in the PATRIOT Act. Prior to Section 218, an application for electronic

surveillance under FISA had to contain a certification that ‘‘the purpose’’ of the surveillance ‘‘is to obtain foreign intelligence information.’’ 50 U.S.C. § 1804(a)(7)(B)

(2000 ed.). Section 218 changed the phrase ‘‘the purpose’’ to ‘‘a significance purpose,’’

thus clarifying that the presence of other purposes (such as a possible criminal prosecution) did not preclude a FISA application. In doing so, Section 218 disapproved

the ‘‘primary purpose’’ test that had been engrafted onto the pre-PATRIOT Act language. In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. of Rev. 2002). This

amendment, as many have noted, was important in tearing down the ‘‘wall’’ between

intelligence personnel and law enforcement personnel. It should not be permitted to

lapse. Moreover, allowing Section 218 to expire could potentially put the law in a

state of confusion, because the Foreign Intelligence Surveillance Court of Review

has cast doubt on whether the ‘‘primary purpose’’ test was a correct reading of the

pre-PATRIOT Act statutory language. In re Sealed Case, supra. As a result, there

is considerable room for argument over what exactly would be the effect of allowing

this provision to lapse. The Congress should ensure clarity in this important area

of the law by making Section 218 permanent. Section 101 of the draft legislation

does that, and Section 203 also includes a further, appropriate amendment confirming the correctness of the Court of Review’s conclusion that FISA Section

101(e)(1)’s reference to c, protect[ing]’’ against international terrorism, etc., includes

protecting by means of a criminal prosecution that disables the foreign agents involved.

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(9) SECTION 225

This section extends to the FISA statute the same immunity from civil liability

that exists under Title III for wire or electronic communications service providers

who assist in carrying out a court order or an emergency request for assistance

under FISA. Pub. L. No. 107–56, § 225, 115 Stat. at 295–96. There is no good reason

the immunity of a service provider for carrying out court orders for surveillance

should depend upon whether the order was issued under Title III or under FISA.

This provision should be made permanent.

ADDITIONAL PROVISIONS OF THE DRAFT LEGISLATION

The draft bill also contains detailed provisions providing for the use of ‘‘administrative subpoenas’’ in certain intelligence investigations, and codifying (with

changes) the use of so-called ‘‘mail covers’’ in such investigations. See Sections 213

and 212. The authorization of administrative subpoenas by Section 213 would appear to be an appropriate invocation of the principle that, if a tool is available to

fight other crimes, it should be available to fight terrorism. Under 18 U.S.C.

§ 3486(a), administrative subpoenas are currently authorized in the investigation of,

inter alia, a ‘‘Federal health care offense’’ and ‘‘a Federal offense involving the sexual exploitation or abuse of children.’’ As I said before, if the judgment has already

been made that this tool is appropriate for fighting these other crimes, and that any

privacy interests at stake must yield to that effort, then surely the tool should also

be available to fight terrorism, and should have an analog in the foreign intelligence

context. The appropriate questions should, in my view, instead focus on the technical issues concerning how such authority would be granted in the FISA context.

Thus, for example, to the extent that the procedures specified in Section 213 differs

from those in 18 U.S.C. § 3486, are those differences warranted by differential factors unique to the FISA context? Moreover, what should be the relation between the

scope of the administrative subpoena authority in Section 213 of the draft bill and

the business records provision in Section 215 of the PATRIOT Act? These are questions that I think warrant careful study and consideration. But I find it very hard

to say that administrative subpoena authority is just fine when it comes to health

care fraud, but is somehow a grave threat to liberty when it comes to fighting terrorism.

The ‘‘mail cover’’ provisions in Section 212 relate solely to information on the exterior of mail that is not subject to any reasonable expectation of privacy, such as addressing information. The provision appears to be fairly narrowly drafted in terms

of the scope of the authority it confers, the high-level approval it requires, and the

requirement for ‘‘minimization’’ with respect to retention and dissemination of

records obtained by a mail cover under this section. Notably, the provision only applies to requests made to the ‘‘United States Postal Service.’’ The apparent intent

of the provision is to ensure appropriate cooperation from the Postal Service, while

leaving the judgment whether to request the mail cover with the FBI. That formal

allocation of authority seems sensible (since only the FBI will be privy to the full

context of the intelligence investigation that leads to the request). The Committee

should evaluate whether it is needed as a practical matter in light of the history

on this issue between the FBI and the Postal Service.

I would also like to make a brief comment about Section 202 of the draft bill. This

section would amend FISA’s definition of ‘‘content’’ so that it more closely conforms

with the definition of ‘‘content’’ under the Title III wiretap statute, 18 U.S.C.

§ 2510(8). This appears to be a sensible change. By defining ‘‘any information concerning the identity of the parties to [a] communication’’ as ‘‘contents,’’ FISA’s current definition could be misconstrued as casting doubt on whether mere addressing

information, not derived from the substance of the communication, is ‘‘contents.’’ As

the pen register statutes reflect, mere addressing information is not ordinarily considered to be ‘‘contents,’’ and there is no harm in eliminating a perceived potential

ambiguity in FISA on this score.

I would be pleased to answer any questions the Committee might have on this

subject.

STATEMENT OF DANIEL P. COLLINS, FORMER ASSOCIATE

DEPUTY ATTORNEY GENERAL AND CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF JUSTICE

Mr. COLLINS. Chairman Roberts, Vice Chairman Rockefeller,

members of the Committee, I’m pleased to testify before you today

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on the important bill and the important subject that you’ve taken

up.

The title of the PATRIOT Act, we’re used to calling it the PATRIOT Act but that stands for Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. And part of this Committee’s work is evaluating whether, in light of the opportunity

since enactment of the PATRIOT Act to review those tools, whether

they are still judged to be appropriate.

The draft bill before the Committee would make nine of those

tools permanent, and I agree with that assessment. Today, as in

2001, they remain appropriate tools in the war on terror. I’ve addressed all nine of those in my written statement. I’d like to focus

on two of them and then make a few comments on administrative

subpoenas.

Section 206 on roving wiretaps has been a subject of significant

controversy—section 206 of the PATRIOT Act. As I’ve set forth in

my written statement, I think that it’s based on a misunderstanding of the differences between FISA and Title III, because the

primary criticism toward section 206 is that it does not incorporate

all of the restrictions that are contained on roving wiretaps in Title

III on the criminal side. But that is because Title III, on the other

hand, waives certain other restrictions that are present in FISA.

So you have actually a different set of restrictions on each side

of the ledger. It’s a different balance struck on each side. But I

think in both cases it’s an adequate balance that is struck, and

that therefore that provision should be made permanent without

modification.

Section 215 of the PATRIOT Act is another provision that’s designed to ensure that on the intelligence and national security side,

there are counterparts in terms of investigative tools to the tools

that are present on the criminal side. And that is the provision

that allows for access with a court order to business records.

And the current version of Section 215 contains a number of protections. A court order is required. The court is not merely a rubber

stamp, because the statute explicitly recognizes the right of the

court to modify the requested order. It has a narrow scope that is

specified in the statute. It can’t be used to investigate, for example,

domestic terrorism. And it provides explicit protection for First

Amendment rights, a provision that I think should be retained in

that statute.

The draft bill that’s before the Committee would make this permanent, would make, I think, an important clarification that the

relevance standard, which is actually not reflected on the text of

the current provision, is meant to be in the provision and that is

made explicit in the provision as modified by the bill before this

Committee.

Also, the bill properly establishes additional procedural protections by requiring the Attorney General to adopt minimization procedures governing the retention and dissemination of any items obtained under a Section 215 order.

There’s been reference this morning to the fact that the Attorney

General, in his testimony before this Committee on April 27, indicated that judicial review should be available to challenge 215 orders. That is not a subject that is currently addressed in Section

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215 and I would respectfully submit would be profitably addressed

in draft legislation.

The draft bill also contains a provision which has been the subject of much discussion concerning administrative subpoenas. With

respect to that provision, my basic approach to that is that with respect to terrorism—which is essentially one of our most important

priorities, is fighting terrorism—there should be something equivalent to a most-favored-nations clause.

If we have a tool that is available for some other crime, for some

lesser harm, and we have presumably already made the choice that

privacy interests that are at stake with respect to that tool must

yield in those other circumstances, then I think the burden is on

those to say why that tool should not be extended to terrorism. It

would seem that without more, it should be applied terrorism. And

I think that is the basic logic behind the extension of the administrative subpoena here.

The placement of the administrative subpoena authority on the

FISA side does raise, I think, a number of questions that need to

be addressed. First and foremost is, what is the relationship between that authority and the authority that exists within Section

215, because there’s certainly a significant overlap between the

business records authority, and indeed the standards are described

similarly in the two devices.

Senator Feinstein suggested that the administrative subpoena

should apply only in emergency situations, and presumably would

leave the Section 215 authority to be the authority that is invoked

in the non-emergency situations. Another possibility would be, in

crafting the regime of judicial review for Section 215, to make the

standards more lenient—in other words, that the judicial review

would be less searching on the Section 215 side than it might be

on the administrative subpoena side if the Department went to the

trouble of getting judicial review of the order before it was actually

issued. There are a number of possibilities the Committee could

consider in that regard.

Mr. Kris has raised the issue of delegation, that if there’s concern

about whether it should be placed with the Director or particular

officials within the Bureau, that it could be raised to the Attorney

General and leave the Attorney General with flexibility to change

the designation.

There’s also the issue of the court that should conduct the review. The current provision on administrative subpoenas here

would give any district court in the United States the authority to

hear the challenges. Another possibility would be to model the judicial review after, in a sense, the pen/trap provision that’s in FISA,

which allows the FISA court or, in that case, its magistrate judges,

a list of magistrate judges publicly designated by the Chief Justice.

You could have a similar model apply to the districts across the

country so that we would know that you were selecting venues that

would have the capacity to act quickly in terms of the facilities, et

cetera, to handle something that would involve in-camera review of

sensitive material.

I would be pleased to answer any questions the committee may

have.

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* The Center for Democracy and Technology is a non-profit, public interest organization dedicated to promoting civil liberties and democratic values for the new digital communications

media. Among our priorities is preserving the balance between security and freedom after 9/11.

CDT coordinates the Digital Privacy and Security Working Group (DPSWG), a forum for computer, communications, and public interest organizations, companies and associations interested

in information privacy and security issues.

Chairman ROBERTS. We thank you very much for your testimony,

Mr. Collins. Mr. Dempsey, you’re next. And I would like to put a

bug in your ears. I’m not asking for a rendition of Capital Gang or

anything that’s on television, but if each of you would have a comment on any of the others’ comments in terms of a suggestion, why,

we would be interested in that after Mr. Dempsey finishes his testimony.

And so we will now ask Mr. Dempsey for his commentary, please.

[The prepared statement of Mr. Dempsey follows:]

PREPARED STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR DEMOCRACY & TECHNOLOGY*

Chairman Roberts, Vice Chairman Rockefeller, Members of the Committee, thank

you for the opportunity to testify this morning. I previously testified before the Committee on April 19, at which time I urged the Committee to preserve the PATRIOT

Act powers but to adopt checks and balances to make them more effective and less

subject to abuse. In particular, I stressed the role of prior judicial review based upon

a factual showing and particularized suspicion. The draft bill before the Committee

takes some small steps in the right direction, but overall the draft shifts radically

in exactly the wrong direction.

In particular, I will focus on the proposal for administrative subpoenas in national

security investigations. This is a big deal. The first, threshold question of need has

not been addressed. And contrary to what has been said by some, there is no precedent in existing law for the grant of administrative subpoena power to the FBI in

national security cases. Given the unique nature of intelligence investigations,

which call for greater not lower standards, we urge the Committee to reconsider and

reject this proposal.

At the outset, let me re-emphasize some basic points on which I hope there is

widespread agreement: • Terrorism poses a grave and imminent threat to our nation. There are people—

almost certainly some in the United States—today planning additional terrorist attacks, perhaps involving biological, chemical or nuclear materials. • The government must have strong investigative authorities to collect information to prevent terrorism. These authorities must include the ability to conduct electronic surveillance, carry out physical searches effectively, and obtain transactional

records or business records pertaining to suspected terrorists. • These authorities, however, must be guided by the Fourth Amendment, and

subject to meaningful judicial controls as well as executive and legislative oversight

and a measure of public transparency.

INTELLIGENCE INVESTIGATIONS ARE MORE DANGEROUS TO LIBERTY THAN CRIMINAL IN- VESTIGATIONS—THEY ARE BROADER, CAN ENCOMPASS FIRST AMENDMENT ACTIVITIES

AND ARE MORE SECRETIVE AND LESS SUBJECT TO AFTER-THE-FACT SCRUTINY—AND

THEREFORE INTELLIGENCE POWERS REQUIRE STRONGER COMPENSATING PROTEC- TIONS

Throughout the PATRIOT Act debate, and now in the context of administrative

subpoenas, the government has argued that it should have the same powers subject

to the same standards in intelligence investigations that it has in criminal investigations. As we will explain below, administrative subpoenas are not normally

available in criminal investigations, but even if they were, there are strong reasons

not to extend criminal justice norms (like ‘‘relevance’’) to intelligence investigations.

Intelligence investigations are special, in ways that make them preferable to the

government, but also in ways that make them more dangerous to liberty than criminal investigations. First, intelligence investigations are broader. They are not limited by the criminal code. They can investigate legal activity. In the case of foreign

nationals in the United States, they can focus solely on First Amendment activities.

Even in the case of U.S. persons, they can collect information about First Amendment activities. In this context, the concept of ‘‘relevance’’ has little meaning. Look

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1This point was articulated by Suzanne Spaulding in her May 10, 2005 testimony before the

Senate Judiciary Committee.

at Section 215 and the proposed administrative subpoena authority. They refer to

‘‘an investigation to protect against international terrorism.’’ The standard does not

say ‘‘an investigation into international terrorism activities’’—that would at least

mean that there was some specific terrorism activity being investigated. Instead, it

says ‘‘an investigation to protect against international terrorism.’’ Think about an

investigation to ‘‘protect against’’ tax fraud. Or an investigation to ‘‘protect against’’

bank robbery. How broad would that be?1

Second, intelligence investigations are conducted in much greater secret than

criminal cases, even perpetual secret. When a person receives a grand jury subpoena or an administrative subpoena in an administrative proceeding, normally he

can publicly complain about it. In a criminal case, even the target is often notified

while the investigation is underway. Most searches in criminal cases are carried out

with simultaneous notice to the target. Even though wiretaps are conducted in secret, the target is notified afterwards. Notice is an important element of Fourth

Amendment norms, but most searches and wiretaps in intelligence investigations

are secret forever. Under the proposed administrative subpoena authority, the FBI

can compel the recipient to perpetual secrecy.

Third, the big show in a criminal investigation is the trial. A prosecutor knows

that, at the end of the process, his actions will all come out in public. If he is overreaching, if he went on a fishing expedition, that will all be aired, and he will face

public scrutiny and even ridicule. That’s a powerful constraint. Similarly, an administrative agency like the SEC or the FTC must ultimately account in public for its

actions, its successes and its failures. But most intelligence investigations never result in a trial or other public proceeding. The evidence is used clandestinely. Sometimes the desired result is the mere sense that the government is watching.

Since intelligence investigations are broader, more secret and there is no after the

fact scrutiny, protections must be built in at the beginning. That is where the PATRIOT Act fell short and where the proposal for administrative subpoenas falls

short.

THE DIGITAL REVOLUTION IS PLACING MORE AND MORE INFORMATION IN THE HANDS

OF THIRD PARTIES

Section 215 of the PATRIOT Act and to an even greater degree the administrative

subpoena authority are of especially grave concern because they exploit trends in

technology that threaten to almost eliminate privacy. More and more information

about our lives is collected in daily transactions by those with whom we transact

business. Grocery stores, other merchants, hotels, travel agents, insurance companies, and banks all collect computerized information about our actions. Credit cards,

EZ passes, cell phones, and the Internet generate digital fingerprints giving a broad

picture of our interests and associations. Congress has tried to keep pace, with laws

on financial privacy and medical privacy, but the administrative subpoena provisions of the draft bill would wipe those protections away.

Moreover, a storage revolution is sweeping the field of information and communications technology. ISPs, websites and other online service providers are offering

very large quantities of online storage, for email, calendars, photographs and even

voicemail. Increasingly, ordinary citizens are storing information not in their homes

or even on portable devices but on networks, under the control of service providers

who can be served with compulsory process and never have to tell the subscribers

that their privacy has been invaded.

THE THRESHOLD QUESTION—THERE HAS BEEN NO SHOWING OF NEED

The 9/11 Commission concluded that the burden of proof for retaining—and equally so for adding—a particular governmental power should be on the executive to explain that the power actually materially enhances security. To show that a power

is needed, the government must show that current powers are inadequate. With respect to administrative subpoenas, the government has not met that burden.

As the Justice Department itself has noted, the rationale behind administrative

subpoenas is that ‘‘Without sufficient investigatory powers, including some authority

to issue administrative subpoena requests, Federal governmental entities would be

unable to fulfill their statutorily imposed responsibility to implement regulatory or

fiscal policies.’’ U.S. Department of Justice, Office of Legal Policy, ‘‘Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch

Agencies and Entities, pursuant to Public Law 06–544’’ (2002) at p. 6. As the DOJ

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2 U.S. Department of Justice, Office of Legal Policy, ‘‘Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, pursuant to Public

Law 06–544’’ (2002). See also Charles Doyle, Congressional Research Service, ‘‘Administrative

Subpoenas and National Security Letters in Criminal And Foreign Intelligence Investigations:

Background and Proposed Adjustments’’ (April 15, 2005).

goes on to note, limiting this authority ‘‘would leave administrative entities unable

to execute their respective statutory authorities.’’ Id at 7.

Under current law, the FBI already has far-reaching and sufficient compulsory

powers to obtain any relevant information when it is investigating terrorism, under

both its criminal and intelligence authorities: • Search Warrants. In any criminal investigation of international terrorism, the

FBI can obtain a search warrant for documents or other materials if there is a judicial finding of probable cause that a crime is being planned. Search warrants can

be issued not only to search a suspect’s home, but also to obtain documents from

any other third party if they constitute evidence of a crime. • Grand Jury Subpoenas. The FBI also can use grand jury subpoenas in any

criminal investigation of international terrorism to obtain any documents or other

materials. • FISA Orders and NSLs. In internatiional terrorism cases, the FBI has sweeping

authority to obtain business records and any other tangible things under the Foreign Intelligence Surveillance Act, as amended by the PATRIOT Act. This authority

exists not only in Section 215, but also in the five National Security Letter authorities for those categories of records considered especially pertinent to intelligence investigations.

The government has made no showing that these powers are insufficient. To the

contrary, it has repeatedly praised the PATRIOT Act as providing the necessary

tools to prevent terrorism and to prosecute a host of terrorism-related cases. Given

these broad existing powers, and given the widespread public and Congressional

concern that some of the existing PATRIOT Act powers are not subject to sufficient

checks and balances, there is no justification for going even further down the path

of unchecked authority.

THERE IS NO PRECEDENT FOR GIVING THE FBI ADMINISTRATIVE SUBPOENA POWER— WHAT WE DO WITH ‘‘CROOKED DOCTORS’’ HAS NO BEARING ON NATIONAL SECURITY

INVESTIGATIONS

Contrary to what has been said by some, there is no precedent for giving the FBI

administrative subpoena power. The FBI has long sought, and Congress has long

rejected granting it, the authority to issue its own orders compelling disclosure of

records. This is an issue that goes back to the momentous debates around the ‘‘FBI

Charter’’ in the late 1970s and early 1980s, when administrative demand authority

was one of the most contentious issues. More recently, in July 1996, after the Oklahoma City bombing, the Administration sought administrative subpoena authority

and Congress rejected it. In 2001, in the original PATRIOT Act proposal, the Administration again sought administrative subpoena power and again Congress rejected it.

Congress has repeatedly denied the FBI the power to write its own compulsory

orders for good reason. An administrative subpoena is an extraordinary device. In

this case, it is essentially a piece of paper signed by an FBI official that requires

any recipient to disclose any documents or any other materials. (We note that the

proposed administrative subpoena in the Committee draft would not convey the

power to compel a person to give testimony to the FBI. This, at least, is an important line to draw.)

In a 2002 study, the Department of Justice identified approximately 335 administrative subpoena authorities existing in the law.2 Of those, 330 are for administrative agencies and not really relevant here, since, to say the least, the FBI’s intelligence division is not an administrative agency. The 330 are in the context of administrative, regulatory programs—such as OSHA and the SEC. They are subject

to various checks and balances. They often issue directly to the subjects of investigations. They are generally not subject to secrecy rules. Only 5 are for use primarily

in criminal investigations and even those have histories and limitations that make

them unsuitable as analogies for what the FBI is seeking: • 21 USC 876—Controlled Substances Act. When the FBI in 1982 was given joint

jurisdiction with the DEA over drug enforcement, it got for drug cases the administrative subpoena authority that went with the enforcement of the regulatory system

for controlled substances. The subpoenas are served, for example, on pharmacies

and doctors suspected of engaging in the diversion of controlled substances to the

black market. According to CRS, ‘‘The earliest of the three Federal statutes used

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extensively for criminal investigative purposes appeared with little fanfare as part

of the 1970 Controlled Substances Act. . . . [T]he legislative history of section 876

emphasizes the value of the subpoena power for administrative purposes—its utility

in assigning and reassigning substances to the acct’s various schedules and in regulating the activities of physicians, pharmacists and the pharmaceutical industry.

. . .’’

• 5 U.S.C. App. (III)—Inspectors General Act. The Inspector General system is

unique, because it is largely focused inward, toward the conduct of Federal agencies

and programs. The Inspectors General seek to achieve systemic reform, and their

powers are quasi-regulatory. They oversee the administration of Federal procurements, the use of Federal resources and the administration of Federal procurements.

• U.S.C. 3486(a)(1)(A)(i)(I)—In a little-noticed provision in the Health Insurance

Portability and Accountability Act (HIPAA), the massive medical insurance law of

1996, the Department of Justice was given administrative subpoena authority for

investigation of Medicare and Medicaid fraud. Notably, the Attorney General has

not delegated his administrative subpoena power to the FBI in health care fraud

investigations. The medical care sector is highly regulated. Medicare and Medicaid

involve Federal tax dollars. Generally, in these cases, the government serves the

subpoena on the entity it is investigating, not some third party. Thus, when the Justice Department demands records from a hospital or insurance company as part of

a health care fraud investigation, it is investigating that hospital or insurance company—not the customers of those entities. That creates some built-in checks on the

administrative subpoena process. Indeed, the HIPAA rules for administrative subpoenas require that individuals’ health information contained in those records can

be depersonalized whenever possible.

• 18 U.S.C. 3486(a)(1)(A)(i)(II)—The administrative subpoena provision for child

abuse cases was also adopted without much debate and is used mainly to obtain

subscriber account information from Internet Service Providers. See 18 U.S.C.

3486(a)(1)(C).

• 18 U.S.C. 3486(a)(1)(A)(ii)—The Secret Service has authority to issue administrative subpoenas, but only in cases involving an ‘‘imminent’’ threat to one of its

protectees. According to the Department of Justice, ‘‘Where a finding of ‘‘imminence’’

is not appropriate, the Secret Service does not seek an administrative subpoena but

proceeds, instead, through the process of procuring a grand jury subpoena through

a local United States Attorney’s office.’’ DOJ report, p. 39. The provision was adopted in 2000, but the authority was not delegated to the Secret Service until November 2001, and in calendar 2001, neither the Secretary of the Treasury nor the Secret

Service issued a single administrative subpoena.

It is apparent from the foregoing that the FBI’s administrative subpoena authority is limited to only two situations, drug matters and child abuse cases. The former

is largely related to the administration of a regulatory scheme and is often subject

to the accountability that comes from serving the subpoena on the target (a drug

company or pharmacy), rather than secretly on a third party. By contrast, the administrative subpoena proposal in the Committee draft is designed to allow the FBI

to obtain information, in secret, from entities that are not under investigation themselves but have customers whose records the FBI is seeking. The person under investigation never knows that the FBI has sought or obtained those records. With

no other external check like a court or grand jury, the FBI would have almost limitless power to collect sensitive personal information.

JUDICIAL CHALLENGE IS A LIMITED PROTECTION, INSUFFICIENT TO OVERCOME

CONCERNS WITH THE AUTHORITY

The Committee bill would allow the recipient of an administrative subpoena to

challenge it, and consideration is being given to providing some form of judicial challenge for Section 215 orders. While judicial challenge is appropriate, it does not resolve our concerns, for two reasons:

First, few recipients of Section 215 orders or administrative sybpoenas would be

likely to challenge them. These disclosure orders are not served on individuals. They

are served on businesses—airlines, hotel chains, and other third parties. These businesses are provided immunity for complying. They never have to tell their customers that there records have been soought and the customers never receive notice.

So why would such a business go to the expense of challenging a Section 215 order

or administrative subpoena? A business has little incentive to spend its money challenging a subpoena for records that pertain to someone else. And since the business

is prohibited from notifying its customer of the existence of the subpoena, the customer has no right to challenge the subpoena.

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Second, the rules for administrative subpoenas require the courts to be extremely

deferential to executive branch agencies. Courts must defer to an agency’s determination of relevancy ‘‘so long as it is not ‘obviously wrong.’ ’’ United States v.

Hunton & Williams, 952 F. 2d. 843, 845 (3rd Cir. 1995). The Third Circuit noted

that the ‘‘reasonableness’’ inquiry in such cases is even more deferential than the

Administrative Procedure Act’s ‘‘arbitrary and capricious’’ standard for review of

agency action. Id. As the Justice Department admits, ‘‘the burden of proof imposed

on a challenger to an administrative subpoena is steep.’’ DOJ Report. For example,

a challenge based on bad faith will be successful only upon a showing of ‘‘institutionalized bad faith, not mere bad faith on the part of the official issuing the subpoena.’’ United States v. LaSalle Nat’l Bank, 437 U.S. 298, 316 (1978).

INTELLIGENCE INVESTIGATIONS POSE UNIQUE RISKS AND REQUIRE SPECIAL

PROTECTIONS

The argument is made, if over 300 agencies have administrative subpoena power,

why shouldn’t the FBI in intelligence investogations. The answer is that no doctor

will be deatined and deported in a secret proceeding following use of the HIPAA administrative subpoena power, no pharmacist will be held in a military prison as an

illegal enemy combatant based on information provided under the Controlled Substances Act, no subject of an administrative subpoena will be sent to Egypt via ‘‘rendition’’ in a child abuse investigation. The governemnt has claimed an extraordinarily broad range of powers in intelligence investigation, especially against foreign nationals but also against citizens. Given the secrecy with which these investigations are conducted, their breadth, and the lack of after-the-fact checks and balances, protections of liberty must come up front, in the form of meaningful judicial

review based on a factual premise and particularized suspicion.

MAIL COVERS

We will say only a few words on the provisions related to mail covers. First, we

know of no justification for this provision. We suspect that the problems the FBI

has encountered with the Postal Service are minor and could be resolved by negotiation, perhaps mediated by this Committee.

Second, though, we fear that the proposal is not merely a codification of existing

practice but rather than shift of power from the Postal Service to the FBI. We note

that the Postal Services regulations start with an affirmation of the policy that the

‘‘U.S. Postal Service maintains rigid control and supervision with respect to the use

of mail covers.’’ 39 CFR 233.3. We are concerned that the FBI may not be as careful.

Finally, we note a fundamental question: Is the concept of a mail cover, whether

administered by the Postal Service or the FBI, outdated? Congress has moved to

bring a variety of intelligence processes under the supervision of the FISA court.

Section 215 applies to business records, and FISA also requires court approval for

use of pen registers and trap and trace devices. The mail cover is a little like a

transactional record, although it requires effort to create it. The mail cover is also

comparable to a pen register or trap and trace device: A mail cover collects to and

from information on surface mail, a pen register collects to and from information

on a telephone call or email. The records provision of FISA and the pen/trap are

both subject to judicial approval. If the Committee really found a need to codify mail

cover authorities, then it should consider making all transactional record provisions

subject to the same standard: judicial approval, based on a factual showing and particularity.

CONCLUSION

Twenty-five public interest organizations from across the political spectrum have

written to oppose the administrative subpoena provision. Their letter states:

At the very time when there seems to be an emerging consensus around adding meaningful checks and balances to PATRIOT Act powers to protect against

government abuse, ‘‘administrative subpoenas’’ would represent a new, unchecked power. At the very time when the Attorney General is supporting

amendments to strengthen judicial oversight of orders under Section 215 of the

PATRIOT Act, authorization of ‘‘administrative subpoenas’’ would move radically in the opposite direction.

Indeed, Attorney General Gonzales has repeatedly emphasized that the prior

judicial approval required for Section 215 orders is a safeguard against abuse.

The Attorney General’s assurances would be meaningless, however, if the FBI

could issue disclosure orders with no judicial approval.

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The Center for Democracy and Technology looks forward to working with you to

strike the right balance, to ensure that the government has the tools it needs to

prevent terrorism, and that those tools are subject to appropriate checks and balances.

STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR,

CENTER FOR DEMOCRACY AND TECHNOLOGY

Mr. DEMPSEY. Chairman Roberts, Vice Chairman Rockefeller,

good morning. Thank you for the opportunity to testify at this

hearing.

The premise of my testimony, Mr. Chairman, is that terrorism

poses a grave and urgent threat to our Nation and that the government must have strong investigative powers to collect information

to prevent terrorism, and that these authorities must be subject to

clear standards and meaningful judicial controls, as well as executive and legislative oversight.

Although we have serious concerns about the mail-cover proposal—and I’ll be happy to address some of the other questions

that Vice Chairman Rockefeller raised—I will focus on the proposal

for administrative subpoenas.

What the bill proposes is a very big step. The first threshold

question of need has not been addressed adequately. And, contrary

to what has been said, administrative subpoena power is not generally available in criminal cases. Even if it were, the argument

that the government should have the same powers, subject to the

same standards, in intelligence investigations that it has in other

investigations is off track.

The fact is, the government is seeking the tools of administrative

or criminal investigations without the checks and balances. Intelligence investigations are different from criminal investigations in

ways that make them preferable to the government but also in

ways that make them more dangerous to liberty.

First, intelligence investigations are broader. They’re not limited

by the criminal code. They can investigate legal activity. Even in

the case of U.S. persons, they can collect information about First

Amendment activities.

Terrorism is uniquely ideological. By definition, it involves political views. In this context, the concept of relevance has little meaning.

Second, intelligence investigations are conducted in much greater

secrecy than criminal or administrative cases, even perpetual secrecy. When a person receives a grand jury subpoena or an administrative subpoena, often he can complain about it at the time, and

any secrecy imposed is limited. Intelligence investigations, of

course, are generally kept secret forever.

Third, the big show in a criminal investigation is the trial. The

prosecutor knows that at the end of the process, his actions will all

come out in public. If he was on a fishing expedition, that will come

out. He could be subject to ridicule. That’s a powerful constraint.

Now, if the government really wanted the same powers in intelligence investigations that they have in criminal investigations, I

would be inclined to say, ‘‘Fine, let them issue subpoenas publicly

without secrecy. Let them inform the target. Let them be focused

and limited only to investigating crimes.’’ But that’s not what intelVerDate 11-MAY-2000 11:57 May 24, 2006 Jkt 024983 PO 00000 Frm 00230 Fmt 6633 Sfmt 6601 C:\INTELL\24983.TXT CarolB PsN: CarolB
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ligence investigations are about. And that’s why they need special

protections.

Now, on the threshold question, there’s been no showing of need.

The government has failed to show need, with the one exception of

speed—and I’ll address the question of urgency or emergencies.

Other than that, they have not shown that their current counterterrorism powers are inadequate.

Senator, why do 330 administrative agencies have administrative

subpoena power? Because otherwise they could not do their jobs.

They have no grand jury power. They have no National Security

Letter authority. They have no orders under Section 215 of the PATRIOT Act and FISA. The justification for the administrative subpoenas is that those are non-criminal agencies.

In the absence of a showing of need, one argument for administrative subpoenas has been that, well, everybody else has it. But,

if you look at the record closely, you will see that there is no precedent for granting the FBI administrative subpoena power in national security cases. This is an issue that goes back decades. I always tell people I have in my files on this mimeographed documents. Back in the momentous debate over the FBI charter in the

seventies and eighties, the FBI sought administrative subpoena

power, Congress declined to give it.

More recently, in 1996 after the Oklahoma City bombing and the

African embassy bombings, the administration sought administrative subpoena power and Congress rejected it. In 2001, in the original PATRIOT Act proposal, the administration sought administrative subpoena power, and the Congress rejected it.

In 2002, the Justice Department completed a study in which they

identified approximately 335 administrative subpoena authorities

existing in law. Of those, 330 are for administrative agencies and

not really relevant here since, to say the least, the FBI national security division is not an administrative agency. Only five of the administrative subpoena powers on the books are primarily used in

criminal investigations and, of those, only two are available to the

FBI.

Everybody talks about crooked doctors. The administrative subpoena power for health care investigations grows out of a regulatory scheme for Medicare and Medicaid and the administration of

those systems. And as far as I know, that administrative subpoena

power resides in the Justice Department and has not been delegated by the Attorney General to the FBI. If anybody has any information to the contrary, I’d welcome it, but, as far as I know,

that is not an FBI power for health care investigations.

Second, is Inspectors General but they largely look inward. They

administer government programs. There’s no inspector general for

the FBI, and there’s no inspector general administrative subpoena

power at the FBI. The Secret Service has administrative subpoenas, but only for imminent threats to protectees. Otherwise, the

Secret Service has to go the grand jury route as well.

So, we come down to two—one for drugs, which also grows out

of an administrative process; the whole scheduling of prescription

drugs and narcotics, and the regulation of pharmacies to make sure

drugs aren’t diverted into the illegal market. And then one for child

abuse cases, which is largely limited, if you look at the statute, to

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obtaining customer identifying information in the case of communications, which for national security investigations, the FBI already has with the National Security Letter.

So the issue seems to boil down to the question of speed and, if

so, then the solution is clear. And I think Senator Feinstein has offered it—an emergency exception to Section 215, the business

records provision. Title III, the criminal wiretap law, the criminal

pen register law, FISA for electronic surveillance, FISA for physical

searches, all have emergency exceptions.

You have to go get a court order, generally, to do a wiretap or

to get a pen register, but there’s an emergency exception. Section

215 could have—maybe should have—an emergency exception, not

as a matter of course, not as a general rule, but in those situations

where speed is of the issue.

Intelligence investigations pose unique risks, and they require

special protections. No doctor will be detained and deported in secret proceedings based upon an administrative subpoena issued in

a healthcare investigation. No subject of an administrative subpoena will be sent to Egypt via rendition in a child abuse case. The

Inspectors General are not worried about the use of political demonstrations as a cover for terrorism, but the FBI is.

The government has claimed an extraordinarily wide range of

powers in intelligence investigations. Given the secrecy with which

these investigations are conducted, their breadth, and the fact that

most of them never come to light, that the subjects never know

that they were being conducted, protections of liberty must come

up front in the form of meaningful judicial review based on a factual premise and particularized suspicion.

I’ll be happy to discuss mail covers and some of the other issues

posed by both the Committee draft bill as well as the PATRIOT

Act.

Thank you, Mr. Chairman. I look forward to your questions.

Chairman ROBERTS. We thank you Mr. Dempsey.

As I indicated, if any member of the panel has any comment to

make at this particular time, hearing the summation of the total

panel, now would be the time to offer any commentary. And we already have a hand raised with Mr. Onek.

Mr. ONEK. I’d like to take off on two comments by Mr. Collins.

The first is when he talked about the most-favored nation rules. As

I think my testimony and Mr. Dempsey’s testimony suggest, we’ll

live by that rule, because there is no comparable subpoena power

anywhere else. There is no subpoena power that’s as broad and

there is no subpoena power that’s as secret. So, the most-favored

nation rule is fine because there’s nothing equivalent, and what is

being suggested here is absolutely new.

Second, Mr. Collins was discussing Section 215, and definitely,

and he said the court order is not a rubber stamp. And this is interesting because the administration, throughout the debate on the

PATRIOT Act, as been going around the country saying how wonderful Section 215 is. Now, we tend to disagree, although we like

the fact that Section 215 does have a court order, but now, after

going around the country and saying how wonderful Section 215 is,

they’re eviscerating it. Section 215 will become unnecessary, because the FBI will simply be able to use administrative subpoenas.

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So it’s just inconsistent. You can’t go around defending Section

215 and saying it’s good because the judge is not a rubber stamp

and the judge can do this and the judge can do that, and he can

modify the order, et cetera, et cetera, and then propose something

which just wipes Section 215 off the map. It’s just totally inconsistent.

Chairman ROBERTS. Mr. Collins, I presume you would like to say

something.

Mr. COLLINS. Yes I would, Mr. Chairman.

I think it is not accurate to say that there’s no precedent. I think

Mr. Dempsey has incorrectly described the scope of the administrative subpoena authority, for example, in child porn cases. He indicated that it was limited to the NSL-type information that can be

requested under 2709.

If you look at 18 USC 3486, which describes the scope of the administrative subpoena authority in child porn cases, there is a specific provision that governs subpoenas in those cases to providers

of electronic communications. That’s in subparagraph C, but in the

paragraph before, it says, except as provided in subparagraph C—

so we treat electronic service providers differently—a subpoena

issued under subparagraph A may require ‘‘the production of any

records or other things relevant to the investigation’’ and ‘‘testimony by the custodian of the things required to be produced concerning the production and authenticity of those things.’’

It is as broad; it is indeed the model, so far as I can tell, for the

draft bill that is before the Committee, where relevance is the operative standard. Indeed the draft bill before the Committee is in one

respect narrower in that it does not authorize the actual taking of

physical testimony. It does not require anyone to actually show up,

but merely requires production of the documents and a certification. So in one respect, actually, it’s even narrower than the child

porn model that’s already in existing law on the criminal side.

Chairman ROBERTS. Mr. Dempsey, do you have any response to

that?

Mr. DEMPSEY. All I’ll say, Mr. Chairman, is that the most important evidence in a child porn investigation is what’s stored on the

computer, or what’s with the service provider.

Chairman ROBERTS. Or the child.

Mr. DEMPSEY. Well, you’re trying to find the child, which means

you’re trying to find the person who might have him, and the administrative subpoena power is limited to subscriber identifying information.

Chairman ROBERTS. The distinguished vice chairman has a question.

Vice Chairman ROCKEFELLER. What interests me about all of

this—neither the Chairman nor myself are lawyers, which is——

Chairman ROBERTS. A good thing.

[Laughter.]

Vice Chairman ROCKEFELLER. Which is a good thing. But it also

causes us to look at the way people who are lawyers, whether

they’re from the FBI or formerly associated with other administrations, look at things. And it occurs to me that people get very hung

up on precedents or the possibility of something going wrong and

that somebody’s rights might get violated.

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I think we look at that, and without being conclusive in our

thinking, as I indicated in my opening statement, this is kind of

a new era. Now, we put into place the PATRIOT Act shortly after

9/11. There were a lot of new things in that, and some of them

have—I would say for the most part, I have been impressed at how

little criticism it has received except in some quarters, and there

it’s very, very hard, hard shell.

What is wrong in taking ideas, like an administrative procedures

approach—subpoenas approach—and not making the conclusion

that the government will set out to violate rights, but understanding that in a new world—and when I say that, I say that with

the fullest, deepest concern about the future of our country—and

homeland security is not only the great weak link, but homeland

security also affects this conversation. So, it’s a form of homeland

security, security of the American people, also the rights of the

American people.

What is wrong in taking something which could do good and

which could very well pick up that person at the hotel more quickly

that the DOJ witness referred to, and saying, as I think you did

Mr. Kris—you just nodded, so I just picked on you—that you go

with that.

You worry about it, but you don’t make it permanent. You do

what we did in fact with the original PATRIOT Act, which is to say

we are introducing new concepts here, because 9/11 was extraordinary, and by the way, the situation in Iraq and across the world,

in my judgment, generally speaking and not of interest to this

panel, is that the world is getting worse quickly and that there will

be results from that, and that you go with something with which

you can nail down somebody who would do substantial damage to

the country through a dirty bomb or something of that sort, but

you don’t let it be permanent. You say, let’s come back and look

at it in 4 years, just as we have done on the original parts of the

PATRIOT Act. What is wrong with that?

Mr. ONEK. Senator, I was originally skeptical—I have to admit—

of the sunsets, but in retrospect they were brilliant. They have

worked. I think I cited to this Committee—but if I didn’t, I think

it’s highly relevant—that the FBI’s own internal memos on the PATRIOT Act talk about the fact that the sunsets are there, that

these authorities will be subject to scrutiny, and therefore the FBI

general counsel’s office advised the field, be careful how you use

these authorities because you’re going to be subject to that sunset

scrutiny.

Now, if we remove the sunsets entirely, where do the countervailing checks and balances come from? I would suggest that they

should come from meaningful judicial review before the fact in all

but emergency cases. I think the after-the-fact review is limited, as

Ms. Caproni recognized. But if we remove the sunsets entirely,

such as on Lone Wolf, which hasn’t even been in effect for 6

months now, and on some of these other provisions that we may

not be sure of, then where does the constraint come from?

Chairman ROBERTS. If I might, I think some of that review

comes from the Congress. As Chairman of the Committee, and as

Vice Chairman of the Committee, I know that both of us feel very

strongly, as do all members of the Committee, if it were a sunset

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of 4 years that means that we would have reviewed it eight times

if it’s on the 6-month basis; if it were more frequent than that, that

would be the case.

And let me assure everyone here that while much of this is

closed because of the classified nature of the operations, we do take

this very, very seriously. I don’t mean that you implied anything

otherwise, but I did want to point out that this doesn’t happen in

a vacuum, that we do take it very seriously, we do review it very

seriously, and I interrupted somebody.

Yes, Mr. Onek.

Mr. ONEK. Senator, we are in a new world, but as we just heard

from the FBI spokesperson, all they’ve said is there may be emergency situations. So if that’s the case, then I don’t see why the

Committee should do more than create some sort of new emergency

provision. The ideal one, from our standpoint, would be a new

emergency provision under FISA, just as you already have under

FISA for searches and for wiretaps. Why do they need the total

package—administrative subpoenas for everything when the only

reason they really cite to is an emergency.

So, give them that, and if they feel somehow that that’s not

enough, or the emergency provision that the Congress writes is inadequate, they, of course, can come back and tell us. But they have

not given any justification here or anywhere else for the broad

sweeping power that they ask for.

The 9/11 Commission, which was certainly concerned with security, as are we all, said when the government asks for a new authority, it has to justify why it needs it. And the most we have

heard here today is that there may be some emergency situations

like the hotel situation. Fine, let’s deal with that situation, but

they’re going way, way beyond it. They’re asking—remember, what

they are asking for is the ability to circumvent Section 215 altogether.

The Congress spent a lot of time on that provision in the PATRIOT Act. But the proposed legislation will do away with it. Why

would anybody ever have to use Section 215 for anything, whether

it’s a library record, a medical record, if they can just issue a subpoena?

You’re throwing away Section 215 of the PATRIOT Act. Why?

The witness was right here. The most she could say was, ‘‘Gee, we

sometimes have emergencies.’’ I don’t want to make light of that

because obviously one emergency can obviously mean saving thousands of lives, so let’s have an emergency exception. But why have

this general, sweeping legislation way beyond anything that the

government has ever seen before?

Don’t kid yourself. Mr. Collins says, ‘‘Gee, there’s broad authority

under child porn.’’ Well, yes, but it’s about child porn only. There’s

only a narrow set of records you can get. The FBI, when it’s investigating foreign intelligence, can potentially get every record about

everything. And, of course, there’s secrecy here that doesn’t exist

in these other situations. Why do you want to go down that road?

It doesn’t make any sense. What makes sense, if there is any emergency need, is an emergency exception, and as Jim Dempsey has

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tions in Title III and in FISA, and there may be other models you

can use. Sit down and work that out.

But there’s no justification for something beyond an emergency

provision. I just don’t see it.

Vice Chairman ROCKEFELLER. I hear what you’re saying, all of

you, and I will need to decide what makes sense to me. Thank you.

Chairman ROBERTS. Mr. Kris, I think you have something to say.

Mr. KRIS. Yes, I guess I just wanted to sort of follow up. I was

struck in listening to the testimony that both Mr. Dempsey and

Mr. Onek both favor ex-ante judicial review over ex-post in a motion to quash.

And I don’t speak for the government any longer, but if I were

the government, I would happily trade motions to quash, particularly motions to quash filed in the Foreign Intelligence Surveillance

Court, in exchange for a requirement for ex-ante judicial review before a magistrate, particularly if we want to spread the authority

out into the field with an emergency exception.

I don’t know if DOJ would make that trade, but once we get into

the horse trading part of legislative deliberations it seems to be

that that’s a good bargain for the government, and I’m interested

in the fact that the sort of civil libertarians are more focused on

and think there is more value in ex-ante than ex-post judicial review.

Chairman ROBERTS. Yes, Mr. Collins.

Mr. COLLINS. Let me make one brief comment. The existing

HIPAA and child porn administrative subpoena provision doesn’t

have a sunset and isn’t limited to emergencies. If it were a choice

between those two, I would probably lean in favor of a sunset over

an emergency, because at least the sunset allows you to see it in

operation and then make the informed choice at the end in light

of the data actually received.

Because at that point you may have the same reaction that Mr.

Dempsey had to the child porn, which is that, well, that hasn’t

turned out to be a problem because they actually look only at a

narrow set of records. You could make that judgment rather than

speculate about it.

Mr. DEMPSEY. Why not both? Why not emergency only and sunset? A sunset would certainly be better than no sunset, but when

there’s no justification for going beyond emergency, I think it would

be extraordinary for this Committee to do that, truly extraordinary,

sunset or not.

Chairman ROBERTS. I’m just having a little trouble subscribing

to the notion that if you have something that would be an infrequent use of the constitutional investigative tool, that that means

it should not be provided. Nor do I think, at least at this juncture,

that we shouldn’t provide or extend authority because another tool

may be used less.

I don’t know. Maybe it’s because every week in this place, in the

hallowed halls of Congress, we find ourselves in the park or someplace, the train station, some other area allegedly that is safe, and

I think most people are getting a little tired of it, and I know my

staff is and I know their parents are back in Kansas.

Maybe that’s not analogous to the statements that have been

made, but it just seems to me that we need more tools, not less,

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when it comes to terrorism and espionage, and by saying that,

don’t misunderstand me. I appreciate all of your suggestions, more

especially in regards to privacy and civil rights.

Mr. Dempsey, I was a bit struck, although it’s not being fair because I was in the back and I heard you—I wasn’t here but I was

here; I was sort of in-camera, so to speak. But I think you asserted

that the concept of relevance has no meaning in a terrorism investigation. What does that mean?

Mr. DEMPSEY. Well, Senator, look at Section 215 of the PATRIOT

Act, the business records provision, or Section 214. They talk about

investigations ‘‘to protect against’’ international terrorism—not investigations of international terrorism, not investigations of terrorist activities, but investigations ‘‘to protect against’’ international terrorism.

Think about an investigation to protect against tax fraud or an

investigation to protect against bank robbery. How broad would

that be? In the terrorism area, the intelligence area, the standard

is foreign power and agent of a foreign power, which applies to organizations that engage in legal as well as illegal activity, and the

scope of those investigations can encompass legal activity. In the

case of non-U.S. persons, those investigations can be predicated

solely on the basis of legal activity.

So, in an investigation to protect against international terrorism,

I think the agent may think he knows what he’s doing, but I think

there should be some factual premise for that. The reason I have

a problem with Section 215 is that it involves a judge, but the government comes in and says this information is relevant to an investigation to protect against international terrorism. They don’t have

to say which investigation, they don’t have to say who they are

looking for, they don’t have to provide any factual evidence.

And the statute says the judge ‘‘shall’’ issue the order, as requested or modified. He can’t even ask, tell me where this is going,

why do you need these particular records? I agree with you entirely, Mr. Chairman, and with the Vice Chairman as well, the government needs access to information to prevent terrorism. But we

know people under pressure—and absolutely the FBI and the other

homeland security and intelligence agencies are under pressure—

people under pressure cut corners. They do the easy thing rather

than the hard thing. They go off on false tangents.

I don’t think that it’s incompatible with our national security to

have checks and balances. I don’t think that we’re only talking

here about privacy or civil liberties, although definitely we are. I

think we’re also talking about guidance, focus, effectiveness, ensuring that investigations are going somewhere, because the threats

are pouring in every day, as you suggested—fleeing the Capitol

here in response to what turned out to be in two cases false

alarms.

There are a lot of false alarms out there and the agencies are

drowning in information. They need more focus, not less. They

need more standards and guidelines, not fewer. Sure, give them the

tools, but make sure those tools are subject to controls.

And this Committee takes very seriously its oversight role, but

given all the rest that this Committee has to deal with and that

the members of this Committee have to deal with, it’s very hard

234

to look at those individual FISA applications. I don’t know, I would

hesitate to wonder how many people here have actually read a pen

register/trap and trace FISA application. There are thousands of

them. There’s a thousand FISA orders.

So, Committee is important. You know, Germany has a purely

parliamentary approach to the approval of national security wiretaps. But that’s not the route we’ve chosen to go here. We’ve chosen

to combine judicial oversight. The U.K. has, of course, just ministerial, AG-type approval, but we’ve chosen to go with both judicial

approval and with legislative and executive oversight based upon

our system of checks and balances. And I think that should apply

throughout, including to the mail covers.

Chairman ROBERTS. I think I’ve opened up Pandora’s Box here.

Mr. Kris.

Mr. KRIS. Let me just make a very brief and pretty narrow technical response to that. It’s true that under section 1861 of FISA

you can get records and tangible things if you certify that they’re

sought for an investigation against terrorism.

What I’m about to say, I don’t know if it will make people feel

better or worse, but if you compare that to the standards that govern a routine criminal grand jury investigation, I don’t think

they’re very different. The Supreme Court has held in a case called

The United States against R. Enterprises that a grand jury can

issue a subpoena, which means effectively, that a grand jury,

through an Assistant U.S. Attorney, can issue a subpoena to investigate even rank hearsay and gossip suggesting the possibility of a

crime or even just to satisfy itself that no crime is being committed

at all.

And the standards for trying to quash a grand jury subpoena are

extremely difficult to meet. So, again, I don’t know if that makes

you feel better or worse, but I do think that standard in FISA is

not all that different conceptually from the standard that governs

a grand jury investigation. Those standards have to be low, because

the acquisition of records occurs very early in an investigation

when the government doesn’t have all of the information that it

has at the end.

Chairman ROBERTS. Well, I want to thank all of you members for

your testimony. I think it’s been very helpful and we will consider

all of your suggestions and comments as we continue the markup

of this legislation. As I’ve indicated before, this is an open process

in which all members concerned will be seriously considered.

I would just say that I would hope that after the many incidents

that we have seen happen not only in the United States but also

throughout the world, that we do have an international problem

and that we do want to stop terrorism before it counts, to detect

and deter it as opposed to getting into the tragedy of consequence

management.

I don’t think it’s a good idea to go back and to try to investigate

it as a crime, and I don’t mean that to perjure anything that anybody has said here in regard to this panel. I think you’ve offered

some very fine advice and suggestions and I thank you for coming.

And since I’m the only person here that you would be testifying

to, perhaps it’s a good time to say the Committee stands adjourned.

[Whereupon, at 11:47 a.m., the Committee adjourned.]

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