U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

93–715 PDF 2004

ANTI-TERRORISM INTELLIGENCE TOOLS

IMPROVEMENT ACT OF 2003

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

H.R. 3179

MAY 18, 2004

Serial No. 104

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

TOM FEENEY, Florida 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

ROBERT C. SCOTT, Virginia 

ADAM B. SCHIFF, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Counsel 

KATY CROOKS, Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

MAY 18, 2004

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

The Honorable Daniel J. Bryant, Assistant Attorney General, Office of Legal 

Policy, United States Department of Justice 

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

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

Mr. Thomas J. Harrington, Deputy Assistant Director, Counterterrorism Division, Federal Bureau of Investigation 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 10

The Honorable Bob Barr, 21st Century Liberties Chair for Freedom and 

Privacy, The American Conservative Union 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter clarifying hearing responses from the Honorable Daniel J. Bryant ........ 39

Letter from Laura W. Murphy, Director of the American Civil Liberties Union 

(ACLU), Washington National Office ................................................................. 41

Letter from the American Civil Liberties Union (ACLU), et al. .......................... 45

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 47

Letter from the Honorable Bob Barr, including the case of Mar-Jac Poultry, 

Inc. ......................................................................................................................... 54

Prepared Statement of Kate Martin, Director of the Center for National 

Security Studies ................................................................................................... 81

Article submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 85

Subcommittee letter to the Honorable Daniel J. Bryant requesting responses 

to post-hearing questions ..................................................................................... 90

Subcommittee letter to Thomas J. Harrington requesting responses to posthearing questions ................................................................................................. 91

Post-hearing questions for the Honorable Daniel J. Bryant from the Subcommittee on Crime, Terrorism, and Homeland Security ................................ 92

Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia ....................................................................................................................... 94

Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable John Conyers, Jr., a Representative in Congress from the State of 

Michigan ............................................................................................................... 95

(1)

ANTI-TERRORISM INTELLIGENCE TOOLS 

IMPROVEMENT ACT OF 2003

TUESDAY, MAY 18, 2004

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

Room 2141, Rayburn House Office Building, Hon. Howard Coble, 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. Today the Subcommittee on Crime, Terrorism, and Homeland Security will hold 

a legislative hearing on H.R. 3179, the ‘‘Anti-Terrorism Intelligence 

Tools Improvement Act of 2003.’’ This bill strengthens existing 

anti-terror intelligence tools that lack enforcement or contain loopholes. 

Congressman Sensenbrenner, the Chairman of the Judiciary 

Committee, and Congressman Goss, the Chairman of the Select 

Committee on Intelligence, introduced H.R. 3179 on September 25, 

2003. 

Viewing this legislation as almost procedural, and having heard 

no complaints, Chairman Sensenbrenner scheduled the bill for 

markup a few weeks ago. At that time the American Civil Liberties 

Union and the American Conservative Union requested that the 

Chairman delay the markup and hold a hearing. The Chairman 

granted this request and we are here today for that reason. 

The Department of Justice and the FBI will testify as to why we 

need this legislation, and Mr. Barr, representing the ACU, will explain its concerns. 

The concept behind H.R. 3179 is simply the laws of our Nation 

should be enforced, should not aid and abet terrorists by providing 

them intelligence-related information, and should assist in the detection and apprehension of terrorists planning to further harm 

Americans. 

This bill works to ensure all three principles, it seems to me. For 

instance, I am sure that everyone agrees that the Congress and the 

Federal agencies have a responsibility to ensure that the laws of 

this country are enforced, whether those laws relate to guns, campaign finance reform, or intelligence and national security. 

The current law authorizes the Federal Government to use a National Security Letter, which is basically an administrative subpoena, to make a request for transactional records, such as billing 

2

records. These requests must be related to investigations of international terrorism or clandestine intelligence activities. 

The current law, however, has no mechanism to enforce the requests. Furthermore, the current law provides no penalty for an individual who decides to tip off a target of terrorism or an intelligence investigation that the Federal Government has made a National Security Letter request concerning the target. Clearly, we do 

not want to tip off or alert a terrorist cell that is under investigation. Accordingly, H.R. 3179 attempts to correct these problems. 

These are common sense corrections, it seems to me. The stakes 

are too high to ignore correcting them. These are a few examples 

of what is contained in the bill, and I look forward to the testimony 

of the witnesses today. 

I am now pleased to recognize the distinguished gentleman from 

Virginia, the Ranking Member, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you 

in convening the hearing on H.R. 3179, ‘‘the Anti-Terrorism Intelligence Tools Improvement Act of 2003.’’ I would like to join you 

in welcoming our witnesses, especially our former colleague, the 

gentleman from Georgia, Mr. Barr, and our former chief counsel, 

Dan Bryant, both of whom have gone on to distinguish themselves 

in other areas. When they were with the Committee, they often got 

exposure to the Subcommittee of differing points of view on legislation, and I suspect it will be no different today. 

H.R. 3179 would now criminalize any resistance to national security reference to administrative subpoenas, regardless of whether 

the demands of the subpoenas are unreasonable, unduly burdensome, harassing, or for any other purpose. The businessman or 

other target of the subpoena cannot even consult with his or her 

attorney or any court, or even the Attorney General of the United 

States, without subjecting himself or herself to criminal prosecution. 

In addition to adding up to 5 years of imprisonment for wilful 

failure to cooperate, the bill also provides for court enforcement 

under pain of contempt of court. This latter part is similar to the 

enforcement of administrative subpoenas in 18 USC 3486 and perhaps could be justified, but I’m concerned that it would also criminalize what may be conscientious objectors by honest businesses or 

other organizations to administrative subpoenas. 

The bill adds a so-called ‘‘lone wolf’’ or ‘‘Moussaoui fix’’ by allowing FISA to be applied to a single individual engaged in international terrorism or preparing to do so. This proposal would seem 

to undermine the premise of FISA, which allows extraordinary secretive powers to be exercised against foreigners if there is probable cause to believe they are agents of a foreign government organization. 

If there is probable cause to believe an individual is engaging in 

international terrorism, or attempting to do so, why not investigate 

him or arrest him under the general criminal law provisions rather 

than dilute further the foundation of FISA? We have already diluted it enough in the USA PATRIOT Act by changing the standard from the primary purpose of being foreign intelligence gathering to that of merely being a ‘‘significant’’ purpose of the use of 

these extraordinary powers. If foreign intelligence gathering is not 

3

the primary reason, then we need to be worried about what the primary reason is before we dilute this provision further. 

Another provision of the bill would take a further bite out of 

court discretion and undermine the rights of accused persons by requiring the courts to exclude defendants from motions by prosecutors to redact information the prosecution does not wish to divulge 

based on alleged national security. Currently, there is nothing to 

prevent the prosecutors from moving the court to hear a motion to 

redact sensitive information ex parte and in camera, and nothing 

to stop the court from ordering the same. However, this bill doesn’t 

even allow a judge to make a judgment as to whether it wishes to 

hear from the defense before deciding on the prosecutor’s motion 

but requires the judge not to hear from the defense. 

Moreover, it allows prosecutors to summarize orally his basis for 

excluding information, whereas currently the law requires a written statement to be provided by the court. It is not clear under this 

bill whether the defendant will even know that an ex parte hearing 

is occurring, or ever have a reviewable record of what was said or 

presented to the court. 

Finally, the bill would allow secretive FISA evidence to be used 

in an ordinary immigration proceeding without even disclosing to 

the defendant that it is FISA-obtained evidence. These are extraordinary extensions of extraordinary, unchecked powers of the Executive branch, so I look forward to the testimony of our witnesses to 

learn what justifies such extraordinary requestive powers and what 

precautions have been made in considering such requests. 

Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. 

We also have the Ranking Member for the full Committee with 

us today. Mr. Conyers, did you have an opening statement you 

wanted to make? 

Mr. CONYERS. Thank you, Mr. Chairman. 

I’m going to pass on my opening statement, and our colleague 

from California said that she would reserve hers for later as well. 

Mr. COBLE. I thank you, Mr. Conyers. 

We have been joined by the gentlelady from California and the 

gentleman from Virginia. 

We have with us today a distinguished panel, three distinguished 

witnesses. We are glad to have you with us. I would first like to 

introduce Mr. Daniel Bryant. Mr. Bryant was confirmed as Assistant Attorney General for Legal Policy by the U.S. Senate on October 3, 2003. In this capacity, Mr. Bryant is responsible for planning, developing and coordinating the implementation of major 

legal policy initiatives. 

Prior to working in his current position, Mr. Bryant served as 

Senior Advisor to the Attorney General, and Assistant Attorney 

General for Legislative Affairs, and as majority chief counsel for 

this Subcommittee. Mr. Bryant received his bachelor and juris doctor degrees from the American University, and his masters from 

Oxford University. Mr. Bryant, it’s good to have you back on the 

Hill. 

Our second witness today is Mr. Thomas J. Harrington. In December, 2002, Mr. Harrington was appointed Deputy Assistant Director for Counterterrorism at the FBI. In this capacity, Mr. HarVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
4

rington conducts oversight of the Division, as well as managing the 

Foreign Terrorist Tracking Task Force, the Counterterrorist Operation Response Section, and the National Threat Center. Mr. Harrington received his appointment as a special agent in the FBI in 

1984. He is an alumnus of the Mount St. Mary’s College in Emmitsburg, MD, and the Stonier Graduate School of Banking at the 

University of Delaware. It’s good to have you with us, Mr. Harrington, as well. 

Our final witness today, as Mr. Scott previously indicated, is our 

former colleague from Georgia, Bob Barr. It’s good to have you back 

on the Hill. 

Mr. BARR. Thank you, Mr. Chairman. 

Mr. COBLE. Mr. Barr represented the Seventh District of Georgia 

in the U.S. House from 1995 to 2003, serving as a senior Member 

of the Judiciary Committee, including service on our Subcommittee. 

Prior to his election, Mr. Barr served as U.S. Attorney for the 

Northern District of Georgia. He is currently the 21st Century Liberties Chair for Freedom and Privacy and the American Conservative Union, and serves as a board member at the Patrick Henry 

Center, and is the honorary chair for Citizens United. 

It’s good to have all of you with us. 

I say to the Members on the Subcommittee that I have been told 

that a vote will likely be scheduled on or about 11 o’clock. As each 

of you have been told, we like to apply the 5-minute rule here. We 

have read your testimony and we will reexamine it, but if you all 

with keep a sharp lookout on that panel that’s before you, and 

when that amber light appears, that’s your warning that the ice is 

becoming thin, and when the red light appears, that is your 5 

minute limit. 

It’s good to have you with us, Mr. Bryant. We will start with you. 

STATEMENT OF THE HONORABLE DANIEL J. BRYANT, 

ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY 

Mr. BRYANT. Thank you, Mr. Chairman. 

Good morning, Chairman Coble, Congressman Scott, distinguished Members of the Committee and Subcommittee. Thank you 

for the opportunity to appear before you today to discuss this important legislation. 

Since September 11, 2001, the Department of Justice has made 

significant strides in the war on terrorism. We have charged at 

least 310 individuals with criminal offenses as a result of terrorism 

investigations, and 179 of these defendants have already been convicted. We have broken up terrorist cells in Buffalo, Charlotte, 

Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of al-Qaeda’s leadership, 

worldwide, has been captured or killed. 

In the PATRIOT Act, Congress provided the Department with a 

number of important tools that have enhanced our ability to gather 

information so that we may detect and disrupt terrorist plots. The 

act brought down the wall that sharply limited information sharing 

between intelligence and law enforcement personnel, so that these 

officials can better connect the dots and prevent future terrorist 

acts. 

5

But while Congress and the Administration working together 

have markedly improved the Department’s capacity to gather and 

analyze the intelligence necessary to prevent terrorist attacks, 

there is still more that needs to be done. This is why I would like 

to thank Chairman Sensenbrenner and Chairman Goss for their 

leadership in introducing this bill. 

The Department strongly supports this bill, which contains a 

number of significant reforms that would assist the Department’s 

efforts to collect intelligence keyed to disrupting terrorist plots. 

To begin with, the bill would amend the Foreign Intelligence Surveillance Act to allow for surveillance of so-called ‘‘lone wolf’’ international terrorists. While the current definition of ‘‘agent of a foreign power’’ found in FISA includes individuals with ties to groups 

that engage in international terrorism, it does not reach unaffiliated individuals who engage in international terrorism. 

Section 4 of the bill would plug this dangerous gap in FISA’s coverage by expanding the definition of ‘‘agent of a foreign power’’ to 

include a non-United States person who is engaged in international 

terrorism, or preparing to engage in international terrorism, even 

if he or she is not known to be affiliated with an international terrorist group. This provision would strengthen our ability to protect 

the American people against terrorism. 

A single foreign terrorist with a chemical, biological or radiological weapon could inflict catastrophic damage on this country. 

Consequently, there is no reason why the Department should not 

be able to conduct FISA surveillance only of foreign terrorists 

whom we know to be affiliated with international terrorist groups. 

The bill also includes two important provisions related to the use 

of National Security Letters. NSLs are used by the FBI to obtain 

from specified third parties discreet types of information, such as 

communications records, financial records and credit reports that 

are relevant to authorized international terrorism or espionage investigations. 

In order to safeguard the integrity of these investigations in 

which NSLs are used, the NSL statutes prohibit persons from disclosing that they have received these requests, but these same statutes contain no explicit penalty for persons who unlawfully disclose 

that they received an NSL. Section 2 would remedy this defect. The 

bill further would specify procedures for the Attorney General to 

seek judicial enforcement of NSLs. 

The bill also includes two common sense reforms that would better allow the Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in 

immigration proceedings. First, section 5 of the bill would amend 

the Classified Information Procedures Act, better known as CIPA, 

to improve the Department’s ability to protect classified information during the course of a criminal trial. Currently under CIPA, 

district courts have discretion over whether to permit the Government to make a request to protect classified information during the 

discovery phase of a criminal trial, ex parte, and in camera. 

This is problematic, because in cases where the Government is 

unable to make a request to withhold classified information ex 

parte and in camera, prosecutors risk disclosing sensitive national 

security information simply by explaining in open court why the 

6

classified information in question should be protected. Section 5 of 

H.R. 3179 would solve this dilemma by allowing prosecutors to 

make such a request ex parte and in camera. 

Wrapping up, Mr. Chairman, we believe this bill contains a series of sensible reforms that would enhance the Department’s ability to gather intelligence necessary for preventing terrorism. 

Thank you for holding this hearing, and thank you for the invitation to be with you today. 

[The prepared statement of Mr. Bryant follows:]

PREPARED STATEMENT OF DANIEL J. BRYANT

Good morning, Mr. Chairman and distinguished members of the Subcommittee. 

Thank you for the opportunity to appear before you today to discuss H.R. 3179, the 

Anti-Terrorism Intelligence Tools Improvement Act of 2003. 

Since the brutal terrorist attacks of September 11, 2001, the Department of Justice has made significant strides in the war against terrorism. We have prosecuted 

many cases, among them being 310 individuals charged with criminal offenses as 

a result of terrorism investigations. 179 of these defendants already have been convicted. We have broken up terrorist cells in Buffalo, Charlotte, Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of 

Al Qaeda’s leadership worldwide has been captured or killed. And we are steadily 

dismantling the terrorists’ financial network: around the world, $136 million in assets have been frozen in 660 accounts. 

These successes would not have been possible without the support of Congress in 

general and this Subcommittee in particular. On behalf of the Department, I would 

like to thank you for providing us with the tools and resources that have made it 

possible for the Department to effectively wage the war against terrorism. 

As recent events in Madrid and Saudi Arabia remind us, however, our fight 

against terrorism is far from over. Our nation’s terrorist enemies remain determined 

to visit death and destruction upon the United States and its allies, and we must 

maintain our vigilance and resolve in the face of this continuing threat. It is for this 

reason that the Department of Justice’s top priority remains the prevention and disruption of terrorist attacks before they occur. Rather than waiting for terrorists to 

strike and then prosecuting those terrorists for their crimes, the Department seeks 

to identify and apprehend terrorists before they are able to carry out their nefarious 

plans. 

The success of this prevention strategy depends, however, upon the Department’s 

capacity to detect terrorist plots before they are executed. And the key to detecting 

such plots in a timely manner is the acquisition of information. Simply put, our ability to prevent terrorism is directly correlated with the quantity and quality of intelligence we are able to obtain and analyze. 

Following the terrorist attacks of September 11, Congress provided the Department in the USA PATRIOT Act with a number of important tools that have enhanced our ability to gather information so that we may detect and disrupt terrorist 

plots. To give just one example, before the USA PATRIOT Act, law enforcement 

agents possessed the authority to conduct electronic surveillance—by petitioning a 

court for a wiretap order—in the investigation of many ordinary, non-terrorism 

crimes, such as drug crimes, mail fraud, and passport fraud. Investigators, however, 

did not possess that same authority when investigating many crimes that terrorists 

are likely to commit, such as chemical weapons offenses, the use of weapons of mass 

destruction, and violent acts of terrorism transcending national borders. This anomaly was corrected by section 201 of the PATRIOT Act, which now enables law enforcement to conduct electronic surveillance when investigating the full-range of terrorism crimes. 

But while Congress and the Administration working together have made significant strides in improving the Department’s capacity to gather the intelligence necessary to prevent terrorist attacks, there is still more that needs to be done. This 

is why I would like to thank Chairman Sensenbrenner and Chairman Goss for their 

leadership in introducing H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003, and to thank this Subcommittee for holding a hearing on this important piece of legislation. The Department of Justice strongly supports H.R. 3179. 

The bill contains a number of significant reforms that would assist the Department’s 

efforts to collect intelligence key to disrupting terrorist plots and better allow the 

Department to protect that information in criminal trials and immigration proceedings. In my testimony today, I will briefly review the five substantive provisions 

7

contained in H.R. 3179 and explain why the Department believes that each one of 

them would assist our efforts in the war against terrorism. 

To begin with, H.R. 3179 would amend the Foreign Intelligence Surveillance Act 

to allow for surveillance of so-called ‘‘lone wolf’’ international terrorists. Currently, 

the definition of ‘‘agent of a foreign power’’ found in FISA includes individuals with 

ties to groups that engage in international terrorism. It does not, however, reach 

unaffiliated individuals who engage in international terrorism. As a result, investigations of ‘‘lone wolf’’ terrorists are currently not authorized under FISA. Rather, 

such investigations must proceed under the stricter standards and shorter time periods for investigating ordinary crimes set forth in Title III of the Omnibus Crime 

Control and Safe Streets Act of 1968, potentially resulting in unnecessary and dangerous delays and greater administrative burdens. 

Section 4 of H.R. 3179 would plug this dangerous gap in FISA’s coverage by expanding the definition of ‘‘agent of a foreign power’’ to include a non-United States 

person who is engaged in international terrorism or preparing to engage in international terrorism, even if he or she is not known to be affiliated with an international terrorist group. 

The Department believes that section 4 of H.R. 3179 would strengthen our ability 

to protect the American people against terrorism. A single foreign terrorist with a 

chemical, biological, or radiological weapon could inflict catastrophic damage on this 

country. Consequently, there is no reason why the Department should be able to 

conduct FISA surveillance only of foreign terrorists whom we know to be affiliated 

with international terrorist groups. In some cases, a foreign terrorist may, in fact, 

be a member of an international terrorist group, but the Department may not be 

able to establish this fact. In other cases, a foreign terrorist may be a genuine lone 

wolf. In either of these scenarios, however, it is vital that the Department be able 

to conduct the appropriate surveillance of such terrorists under FISA so that we are 

able to effectively and efficiently gather the information necessary to prevent these 

terrorists from endangering the lives of the American people. 

Expanding FISA to reach an individual foreign terrorist is a modest but important 

expansion of the statute. To be sure, under current law, the Department must show 

under FISA that a foreign terrorist is a member of an international terrorist group. 

The House Committee Report on FISA, however, suggested that a ‘‘group’’ of terrorists covered by current law might be as small as two or three persons, and the interests that courts have found to support the constitutionality of FISA are unlikely to 

differ appreciably between a case involving a terrorist group of two or three persons 

and a case involving a single terrorist. In addition, it is important to stress that 

this proposal would not change the standard for conducting surveillance of any 

United States person but rather would apply only to foreign terrorists. 

The Senate has already acted in a strong bipartisan fashion to amend FISA to 

cover lone wolf terrorists. Section 4 of H.R. 3179 was included in S. 113, which 

passed the Senate on May 8, 2003, by a vote of 90 to 4. The Department urges the 

House of Representatives to follow suit and also pass this important proposal in 

order to plug this dangerous gap in the scope of FISA’s coverage to cover ‘‘lone wolf’’

terrorists. 

H.R. 3179 also includes two important provisions related to the use of national 

security letter (NSLs). NSLs are used by the FBI to obtain relevant information 

from specified third-parties in authorized international terrorism or espionage investigations. NSLs are similar to administrative subpoenas but narrower in scope. 

While administrative subpoenas can be used to collect a wide array of information, 

NSLs apply more narrowly to telephone and electronic communication transactional 

records, financial records from financial institutions, and consumer information from 

consumer reporting agencies, as well as certain financial, consumer, and travel 

records for certain government employees who have access to classified information. 

In order to safeguard the integrity of the sensitive terrorism and espionage investigations in which NSLs are used, the NSL statutes generally prohibit persons from 

disclosing that they received these requests for information. See, e.g., 12 U.S.C. 

§ 3414(a)(3); 12 U.S.C. § 3414(a)(5)(D); 15 U.S.C. § 1681u(d); 15 U.S.C. § 1681v(c); 18 

U.S.C. § 2709(c); 50 U.S.C. § 436(b). But these same statutes contain no explicit penalty for persons who unlawfully disclose that they have received an NSL. Section 

2 of H.R. 3179 would remedy this defect by creating a new statutory provision imposing criminal liability on those who knowingly violate NSL non-disclosure requirements. This new offense would be a misdemeanor punishable by up to a year of imprisonment, but would carry a stiffer penalty of up to five years of imprisonment 

if the unlawful disclosure was committed with the intent to obstruct an investigation or judicial proceeding. 

Oftentimes, the premature disclosure of an ongoing terrorism investigation can 

lead to a host of negative repercussions, including the destruction of evidence, the 

8

flight of suspected terrorists, and the frustration of efforts to identify additional terrorist conspirators. For these reasons, the FBI has forgone using NSLs in some investigations for fear that the recipients of those NSLs would compromise an investigation by disclosing the fact that they had been sent an NSL. To reduce these 

fears and thus allow for the gathering of additional important information in terrorism investigations, the Department supports the adoption of the appropriate 

criminal penalties set forth in H.R. 3179 to deter the recipients of NSLs from violating applicable nondisclosure requirements as well as the heightened penalties set 

forth in the legislation for cases in which disclosures are actually intended to obstruct an ongoing investigation. 

In addition to setting forth an explicit criminal penalty for those violating NSL 

nondisclosure requirements, H.R. 3179 would also specify procedures for the Attorney General to seek judicial enforcement of NSLs. The NSL statutes currently make 

compliance with an FBI request for information mandatory. See, e.g., 12 U.S.C. 

§ 3414(a)(5)(A); 15 U.S.C. § 1681u(a)-(b); 15 U.S.C. § 1681v(c); 18 U.S.C. § 2709(a); 50 

U.S.C. § 436(c). These statutes, however, do not specify any procedures for judicial 

enforcement if the recipient of an NSL refuses to comply with the FBI’s request. 

Section 3 of H.R. 3179 would make explicit what Congress indicated implicitly by 

making compliance with NSLs mandatory: the Attorney General may seek judicial 

enforcement in cases where the recipient of an NSL refuses to comply with the FBI’s request for information. The judicial enforcement provision contained in H.R. 3179 

is similar to the existing judicial enforcement provision for administrative subpoenas under 18 U.S.C. § 3486(c) and would help the Department to quickly and discretely obtain vital information in terrorism investigations. 

H.R. 3179 also includes two common-sense reforms that would better allow the 

Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in immigration proceedings. First, section 5 of the 

bill would amend the Classified Information Procedures Act (CIPA) to improve the 

Department’s ability to protect classified information during the course of a criminal 

trial. Under section 4 of CIPA, a district court, upon the government’s request, may 

authorize the United States to delete specified items of classified information from 

documents to be made available to a criminal defendant during discovery, to substitute a summary of the information for such classified documents, or to submit a 

statement admitting relevant facts that the classified information would tend to 

prove, so long as prosecutors are able to make a sufficient showing, such as that 

the documents are not discoverable or that the defendant would not be disadvantaged by the substitution of a summary of the information for the classified documents themselves. Currently, however, district courts have discretion over whether 

to permit the government to make such a request ex parte and in camera. 

This is problematic because in cases where the government is unable to make a 

request to withhold classified information ex parte and in camera, prosecutors risk 

disclosing sensitive national-security information simply by explaining in open court 

why the classified information in question should be protected. Section 5 of H.R. 

3179 would solve this dilemma by mandating that prosecutors be able to make a 

request ex parte and in camera to delete specified items of classified information 

from documents or to utilize the other alternatives for protecting classified information set forth in section 4 of CIPA. This provision would ensure that the Department 

is able to take appropriate steps to safeguard classified information in criminal proceedings without risking the disclosure of the very secrets that we are seeking to 

protect. It would also allow the Department to make a request to protect classified 

information orally as well as in writing. 

In addition to understanding what this provision would accomplish, it is equally 

important to understand what this provision would not accomplish. Specifically, it 

would not affect in any way whatsoever the showing that the United States is required to make under section 4 of CIPA to obtain judicial authorization to withhold 

classified information from criminal defendants or to take other steps to safeguard 

classified information. Simply put, the assertion by some that H.R. 3179 would require a federal judge to permit the United States to turn over to a criminal defendant only a summary of evidence rather than classified documents themselves is demonstrably false. Rather, the bill would only allow the United States to make such 

a request ex parte and in camera in order to ensure that such information is not 

disclosed as part of the process of protecting it. 

Finally, H.R. 3179 would eliminate that requirement that the United States notify 

aliens whenever the government intends to use evidence obtained through FISA in 

immigration proceedings. Current law mandates that the government provide notice 

to an ‘‘aggrieved person’’ if information obtained through FISA electronic surveillance, physical searches, or pen registers will be used in any federal proceeding. See

50 U.S.C. §§ 1806(c), 1825(d), & 1845(c). In 1996, Congress carved out an exception 

9

to this requirement for alien terrorist removal proceedings, see 8 U.S.C. § 1534(e), 

but all other immigration proceedings remain subject to this notification requirement. 

Unfortunately, however, this mandate that the government notify an alien that 

it is using information acquired through FISA surveillance in an immigration proceeding may jeopardize in certain situations sensitive ongoing investigations and 

thus risk undermining national security. As a result, the government is sometimes 

faced with the Hobson’s choice of not using this information in immigration proceedings, and possibly permitting dangerous aliens to remain in the country, or 

using the information and undermining its surveillance efforts. When faced with 

this difficult choice, the United States has decided against using FISA information 

in a number of instances in an effort to preserve the integrity of ongoing investigations. 

Section 6 of H.R. 3179, however, would solve this dilemma by expanding the existing notification exception for alien terrorist removal proceedings to all immigration 

proceedings. Significantly, the government still would be obliged to disclose to aliens 

any information it intends to use in immigration proceedings if such disclosure is 

otherwise required by law. Under H.R. 3179, the government simply would not have 

to reveal the fact that the information in question was obtained through FISA. The 

Department supports this provision of H.R. 3179 because it would allow the government to use intelligence in immigration proceedings to safeguard the American people from dangerous aliens without jeopardizing sensitive ongoing investigations. 

In conclusion, I would like to thank the Subcommittee again for holding today’s hearing on such an important topic. H.R. 3179 contains a series of sensible reforms 

that would enhance the Department’s ability to gather intelligence necessary for 

preventing terrorism and to protect the integrity of sensitive intelligence investigations. The Department would be happy to work with the Congress in the weeks and 

months to come on this vital piece of legislation. Thank you once again for allowing 

me to appear before you today, and I look forward to the opportunity to respond 

to any questions that you might have.

Mr. COBLE. Thank you, Mr. Bryant. 

Mr. Harrington. 

STATEMENT OF THOMAS J. HARRINGTON, DEPUTY ASSISTANT 

DIRECTOR, COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION 

Mr. HARRINGTON. Good morning, Mr. Chairman, and Members of 

the Subcommittee. Thank you for the opportunity to appear before 

you this morning to discuss House bill 3179, the ‘‘Anti-Terrorism 

Intelligence Tools Improvement Act of 2003.’’ As Mr. Bryant has just explained, the recent successes of the FBI 

and the Department of Justice as a whole would not have been possible without the support of the Subcommittee and the passage of 

the USA PATRIOT Act, which provided a number of important 

tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks. 

Since 9/11, the primary mission of the FBI has been focused on 

the prevention of future attacks on the U.S. homeland. The FBI 

has spent the past two-and-a-half years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Muller has rebalanced our resources among 

the counterterrorism, intelligence, counterintelligence, cyber and 

criminal programs. This transformation has been significantly enhanced by the enactment of the USA PATRIOT Act, which has facilitated increased information sharing between the intelligence 

and law enforcement communities, both internationally and domestically. H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and information to identify and disrupt future terrorist plots. 

10

Specifically, H.R. 3179 includes two important provisions related 

to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be used to obtain several types of 

records related to electronic communications, specifically telephone 

subscriber information, local and long distance toll billing records, 

and electronic communication transactional records; financial 

records from banks and other financial institutions; and consumer 

reporting records, such as consumer identifying information and 

the identity of financial institutions from credit bureaus. National 

Security Letters generally prohibit the recipient of an NSL from 

disclosing the fact that they have received a request for this information. Section 2 of H.R. 3179 provides for a penalty for persons 

who knowingly disclose the fact that they received these NSLs. 

This penalty provision is important to the FBI, as critical terrorism investigations can be compromised through, for example, destruction of crucial evidence, flight of the suspected terrorist out of 

the country, and frustrate efforts to identify additional associates 

or cell members of the suspected terrorist group when a request for 

information is disclosed. 

H.R. 3179 also provides a provision for judicial enforcement if a 

recipient of a National Security Letter does not comply with the 

mandatory request for information. The judicial enforcement provision of section 3 of the bill is similar to those already existing for 

administrative subpoenas and would assist the FBI in maintaining 

information critical to terrorism investigations. 

An example of where this provision would have been helpful is 

a case where during an investigation into international terrorist activities analysis revealed that several subjects were using a third 

party Internet service provider as a potential means of communication. NSLs served on the third party service revealed that an associate of the subjects registered for the service using a free, website 

e-mail service. The NSLs were served on the web-based e-mail 

service in order to obtain electronic transactional records. The webbased e-mail service has yet to provide the records associated with 

this request. A judicia enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum for quick 

resolution of this issue and allow the investigation to move forward 

more expeditiously. 

Thank you for allowing me to appear here this morning to discuss this important act. It contains reforms which the FBI believes 

are necessary to assist us in gathering the intelligence we will need 

in the future to prevent terrorist attacks. 

I would be happy to answer any questions at the appropriate 

time. 

[The prepared statement of Mr. Harrington follows:]

PREPARED STATEMENT OF THOMAS J. HARRINGTON

Good morning Mr. Chairman and members of the Subcommittee. Thank you for 

the opportunity to appear before you this morning to discuss House Bill 3179, the 

Anti-Terrorism Intelligence Tools Improvement Act of 2003. 

As Mr. Bryant has aptly explained, the recent successes of the Federal Bureau 

of Investigation, and the Department of Justice as a whole, would not have been 

possible without the support of this subcommittee and the passage of the USA PATRIOT Act (USPA) which provided a number of important tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks. 

11

Since 9/11, the main mission of the FBI has been focused on the prevention of 

future terrorist attacks on the homeland. The FBI has spent the past two and a half 

years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Mueller has re-balanced our resources among 

the counterterrorism, intelligence, counterintelligence, cyber and criminal programs. 

This transformation has been significantly enhanced by the enactment of the USA 

PATRIOT Act, which has facilitated increased information sharing between the intelligence and law enforcement communities, both internationally and domestically. 

H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and 

information to identify and disrupt future terrorist plots. 

Specifically, H.R. 3179 includes two important provisions related to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be 

used to obtain several types of records related to electronic communications (telephone subscriber information, local and long distance toll billing records, and electronic communication transactional records); financial records (from banks and 

other financial institutions) and consumer reporting records (such as consumer identifying information and the identity of financial institutions from credit bureaus). 

National Security Letters generally prohibit the recipient of an NSL from disclosing 

the fact that they have received a request for information. Section 2 of H.R. 3179 

provides for a penalty for persons who knowingly disclose the fact that they received 

an NSL. 

This penalty provision is important to the FBI as critical terrorism investigations 

can be compromised through, for example, destruction of crucial evidence, flight of 

the suspected terrorist out of the country, and frustrate efforts to identify additional 

associates or cell members of the suspected terrorist, when a request for information 

is disclosed. 

H.R. 3179 also provides for a procedure for judicial enforcement if a recipient of 

a National Security Letter does not comply with the mandatory request for information. The judicial enforcement provision in Section 3 of the bill is similar to those 

already existing for Administrative Subpoenas and would assist the FBI in obtaining information critical to terrorism investigations. An example of where this provision would have been helpful is a case where during an investigation into international terrorist activities, analysis revealed that several subjects were using a 

third party internet service as a potential means of communication. NSLs served 

on the third party service revealed that an associate of the subjects registered for 

the service using a free, web-based email service. NSLs were served on the webbased email service in order to obtain electronic transactional records. The webbased email service has not yet provided the records associated with the request. 

A judicial enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum to quickly resolve this issue and allow the investigation 

to move forward more expeditiously. 

Thank you again for allowing me to appear before you this morning to discuss 

the Anti-Terrorism Intelligence Tools Improvement Act of 2003. It contains advantageous reforms which the FBI believes are necessary to assist us in gathering the 

intelligence that will prevent future terrorist attacks. I would be happy to answer 

any questions you may have at this time.

Mr. COBLE. Thank you, Mr. Harrington. 

Mr. Barr. 

STATEMENT OF THE HONORABLE BOB BARR, 21ST CENTURY 

LIBERTIES CHAIR FOR FREEDOM AND PRIVACY, THE AMERICAN CONSERVATIVE UNION 

Mr. BARR. Thank you, Mr. Chairman. It is a tremendous honor 

to appear before this very distinguished Subcommittee on which I 

had the honor of serving for many years during my service in the 

Congress of the United States. I appreciate the Chairman calling 

this hearing, and the Ranking Member lending his support to this 

hearing today as well. 

I do hope that this will not be the end of the Subcommittee’s or 

the Committee’s deliberations on these important issues, but merely the start of a very long and searching comprehensive look at the 

PATRIOT Act, where we are with it, what it does, what fixes on 

12

the limitations or expansions might be necessary at some point, but 

that all of us resist the effort to rush into something such as what 

I worry the Congress may do in this particular case with H.R. 

3179. 

Both the distinguished Chairman and the distinguished Assistant Attorney General used the word ‘‘common sense’’ in speaking 

of these proposals. What I would respectfully submit to the Subcommittee and to the Congress is that common sense really requires us, particularly those of us who consider ourselves good 

strong conservatives, Mr. Chairman, to not allow the Government 

to obtain more power based on generalized arguments such as 

those that have been put forward here or those that may appear 

on the surface to be very sound. But when you look below the surface, such as the so-called ‘‘Moussaoui fix,’’ which some of these 

‘‘lone wolf’’ provisions are supposed to address, it really falls apart. 

This piece of legislation is not a ‘‘Moussaoui fix,’’ so to speak. The 

problem with the Moussaoui investigation, as I know the Chairman 

and other Members are fully aware, had nothing to do with not 

having the power that the Government would obtain in H.R. 3179. 

It had to do with a misreading, a misinterpretation, of the existing 

FISA law. 

I think there are some other instances as well, Mr. Chairman, 

where the arguments that the Government is putting forward to 

obtain these additional powers, which again I think, as conservatives, we ought to be very, very hesitant to grant the Government, 

without hearing from them, and common sense tells us this, without hearing from the Government very specific instances where the 

powers that they currently have, or had even prior to the USA PATRIOT Act’s passage and signing into law in 2001, could not have 

been if used properly, and according to the proper criteria, could 

not have given them what they need. 

Even if, in fact, at some point the Subcommittee recommends enactment and adoption by the House of H.R. 3179, I would certainly 

hope that the Subcommittee would require of the Government a 

much more specific rather than just generalized set of reasons why 

these provisions ought to be enacted. 

These provisions are not mere technical corrections, Mr. Chairman, as with much of the USA PATRIOT Act, which the Administration characterized as technical amendments or technical improvements. They were extremely substantive. In this case, for example, where we look at the so-called ‘‘lone wolf’’ provision, we find 

that this would reach very, very broadly and affect the fundamental underpinnings of the entire FISA structure that has been 

built up. By removing it from the nexus ‘‘with a foreign power,’’ you 

lose the entire underpinning and constitutional argument for allowing this exception to the fourth amendment requirements for specific probable cause before electronic surveillance and other types 

of secret monitoring can occur. 

Again, Mr. Chairman, with regard to the ‘‘lone wolf’’ procedures, 

there has been no instance whatsoever in which the Department of 

Justice has come forward and explained why the provision is necessary to have, given the extensive power that the Government already has with traditional subpoenas, traditional title 3 taps, and 

13

a whole range of subpoena power and warrant power that the Government already has. 

Even on the Senate side, with regard to FISA oversight just last 

year, I believe Senators Leahy, Grassley and Specter indicated that 

the Department of Justice, even at that time—and this provision 

has been sought by the Department of Justice for much longer than 

that—that the Department had laid out no cases in which existing 

powers were not sufficient to attack ‘‘lone wolfs,’’ and they could 

have gone after Moussaoui but for a misreading of the statute, not 

that they didn’t have this power. 

When one looks also, Mr. Chairman, at the expansion of the secret proceedings, this provision in sections 5 and 6 would set up basically a whole new category of evidence, sort of secret secret evidence, where the individual against whom that secret secret proceeding is being directed doesn’t even know that there’s a secret 

proceeding. 

I think we would, just as we did in the 107th Congress, Mr. 

Chairman, in which you and many of us joined in supporting legislation to place limits on secret proceedings, we ought to be looking 

very carefully at that, particularly as strong conservatives who care 

deeply about the Constitution, rather than going in the other direction and creating additional secret proceedings. 

So I would very much respectfully urge this Subcommittee and, 

of course, the full Committee, to not pass this or recommend adoption of this legislation at this time. I think it’s premature, Mr. 

Chairman, particularly in light of the lack of specific cases that the 

Justice Department has been unable to prosecute or investigate 

that they have come forward with. 

[The prepared statement of Mr. Barr follows:]

PREPARED STATEMENT OF THE HONORABLE BOB BARR

Chairman Coble, Ranking Member Scott, and distinguished subcommittee members, thank you for inviting me to testify on H.R. 3179, the ‘‘Anti-Terrorism Intelligence Tools Improvement Act of 2003,’’ which expands federal secret surveillance 

powers under the USA PATRIOT Act. 

Until January of 2003, I had the honor to serve with many of you as a United 

States Representative from Georgia. Previously, I served as the presidentially appointed United States Attorney for the Northern District of Georgia, as an official 

with the U.S. Central Intelligence Agency, and as an attorney in private practice. 

Currently again a practicing attorney, I now occupy the 21st Century Liberties 

Chair for Privacy and Freedom at the American Conservative Union (ACU) and in 

that capacity I am pleased to be speaking on behalf of the American Conservative 

Union today. I also consult on privacy matters for the American Civil Liberties 

Union. 

As a student and supporter of the Constitution and its component Bill of Rights, 

I will not concede that meeting this government’s profound responsibility for national security entails sacrificing the Rights given us by God and guaranteed in that 

great document. Yet, unfortunately, the road down which our nation has been traveling these past two years, with the USA PATRIOT Act, is taking us in a direction 

in which our liberties are being diminished in that battle against terrorism. 

Despite the broad concerns expressed by many grassroots conservative organizations, such as the American Conservative Union, Free Congress Foundation, and 

Eagle Forum—with whom I continue to work closely—the Administration has 

pressed on with a ill-considered proposal to prematurely make permanent all of the 

USA PATRIOT Act. I respectfully submit this would be a serious mistake. Along 

with many of you, I balked at making the PATRIOT Act’s new powers permanent, 

insisting on a ‘‘sunset clause’’ that would allow Congress to review these new powers. Making those powers permanent now would take away any leverage Congress 

now has to secure cooperation from the Justice Department in its oversight efforts. 

14

1The ‘‘Domestic Security Enhancement Act of 2003’’ (DSEA) was leaked early last year. Although never introduced, several of its sections are contained in H.R. 3179. Sections 2 and 3 

of H.R. 3179 are identical to section 129 of DSEA. Section 4 of H.R. 3179 is a modified version 

of section 101 of DSEA (section 101 of DSEA would have eliminated the ‘‘foreign power’’ standard for citizens as well as non-citizens). Section 5 of H.R. 3179 is identical to section 204 of 

DSEA. Section 6 of H.R. 3179 appears to be new. 2These include H.R. 3037, ‘‘The Antiterrorism Tools Enhancement Act of 2003,’’ (administrative subpoenas); H.R. 3040 and S. 1606, ‘‘The Pretrial Detention and Lifetime Supervision of 

Terrorists Act of 2003,’’ (presumptive denial of bail); and H.R. 2934 and S. 1604, the ‘‘Terrorist 

Penalties Enhancement Act of 2003’’ (new death penalties). 

The Administration has also attempted to push forward, on a piecemeal basis, 

parts of the ‘‘Son of PATRIOT’’ proposal that surfaced last year. H.R. 3179 includes 

several of the provisions of the Justice Department’s draft ‘‘Son of PATRIOT’’ bill,1

and the Administration is pushing other bills separately that include other provisions.2 Passing pieces of ‘‘Son of PATRIOT’’ this year would be a mistake. 

The House Judiciary Committee has yet to convene a series of long-planned hearings to examine how the USA PATRIOT Act is being used. Are its provisions being 

used widely, in ordinary cases having nothing to do with terrorism? The Attorney 

General has said he hasn’t used some powers. If so, are such powers really needed? 

These are just a few of the questions that the Justice Department has not adequately answered. While I have faith the Chairman will hold these promised hearings, these questions should be examined before the Committee considers new legislation. 

The question before us today is whether the USA PATRIOT Act should be expanded this year. In short, the answer is NO. Put simply, Congress should not provide more powers to an ever-growing federal government without carefully and exhaustively reviewing how it is using the powers it already has. 

The Fourth Amendment is clear: ‘‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall 

not be violated, and no Warrants shall issue, but upon probable cause, supported 

by Oath or affirmation, and particularly describing the place to be searched, and 

the persons or things to be seized’’ (emphasis added). 

Note carefully—‘‘people,’’ not ‘‘citizens.’’ The Founding Fathers meant what they 

wrote. Conservatives do not believe that, more than two hundred years later, we 

should creatively ‘‘interpret’’ the Bill of Rights when the words don’t suit our transitory notions of what is convenient. While the Constitution does reserve some rights 

exclusively to American citizens, the Founders protected certain fundamental rights 

for all people, including the right to due process of law and the right to be free from 

searches—a word broad enough to include the 18th and 19th Century physical variety, the 20th Century telephone variety, and the 21st Century Internet variety—

not based on probable cause. 

At bottom, the problem with the surveillance powers of the USA PATRIOT Act 

is that they play fast and loose with clear constitutional commands. Unfortunately, 

H.R. 3179 takes certain provisions of the USA PATRIOT Act that weaken the 

Fourth Amendment and other fundamental rights and makes them worse. 

CREATING NEW CRIMINAL PENALTIES FOR SECRET FBI LETTER DEMANDS FOR

CONFIDENTIAL RECORDS

Sections 2 and 3 of H.R. 3179 add new criminal penalties to enforce a far-reaching 

and troubling power of the FBI—the power to demand, without a court order, that 

a business or individual release a broad range of highly confidential records. The 

records demands are secret and the recipient is barred from informing anyone that 

the demand has been made or that records have been turned over. Section 505 of 

the USA PATRIOT Act amended the so-called ‘‘national security letter’’ power to 

eliminate the need to assert any individual suspicion (much less probable cause) before issuing such a letter. Section 2 of the bill adds a new crime to enforce the gag 

provisions. Section 3 allows the FBI to invoke a court’s aid in enforcing the letter 

demands—and punish any failure to comply as contempt. 

The records subject to these FBI letters include the customer records of ‘‘communications service providers’’—such as an Internet Service Provider, telephone company, or (according to the FBI) the records of your use of a computer terminal at 

the local library or Internet cafe. They also include credit reports and the customer 

records of ‘‘financial institutions.’’ The term ‘‘financial institutions’’ was expanded 

and redefined by last year’s intelligence authorization act to include a host of large 

and small businesses, including casinos, the local jewelry store, post office, car dealVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
15

3 Intelligence Authorization Act for FY2004, Pub. L. No. 108–177, at § 374 (providing that definition of ‘‘financial institution’’ at 31 U.S.C. § 5312(a)(2) applies for national security letters). 

ership and pawnbroker’s store; as well as any other business the Treasury Secretary 

sees fit to designate.3

The government does not need these records powers, also known as ‘‘administrative subpoenas’’ or ‘‘national security letters,’’ to obtain records of suspected terrorists. An ordinary search warrant or grand jury subpoena can be used in the investigation of any crime, including one alleging terrorism. National security letters are 

used in potentially wide-ranging ‘‘foreign intelligence’’ investigations. These records 

demands can be used without even the minimal oversight of the secret Foreign Intelligence Surveillance Court or any other court. 

There is no right to challenge the scope of a national security letter, and—because 

it was repealed by the USA PATRIOT Act—no standard for protecting individual 

privacy. Compliance with a national security letter—and compliance with the gag 

provision that muzzles a recipient from protesting such a letter—is mandatory 

under the law, although no specific penalties are listed. 

Specific penalties aren’t needed for national security letters to serve their intended function of giving cover to businesses and or individuals to cooperate with 

wide-ranging government intelligence investigations. The recipient can point to a legally-binding national security letter in response to any complaints from customers 

about turning over their confidential information to the government. 

Without specific penalties, the business or individual who receives a letter still 

has some, albeit very limited, leverage to try to persuade the government to narrow 

an exceedingly broad or intrusive request. Adding criminal penalties to such letters 

for the first time—and to the gag provision that prevents a recipient from complaining about them—tips the balance decisively in the government’s favor and 

away from the business or individual whose records are being demanded. 

Before Congress considers adding criminal penalties to this troubling power—

which has already been expanded twice since 9/11—it should hold hearings to find 

out much more about how these letters work in practice. The government has refused to release even the most general information about national security letters—

including the type of records being monitored and whether the government is seeking to obtain entire databases. 

At a minimum, Congress should make explicit the right of a recipient to challenge 

a national security letter—just as a recipient can challenge a grand jury subpoena. 

Congress should require some individual suspicion before compliance with a national security letter can be ordered by a court. Finally, the recipient should be able 

to challenge the gag provision in court, and should be allowed to contact an attorney, congressional committee, or the Justice Department Inspector General without 

fear of being prosecuted for violating the gag provision. 

ALLOWING SECRET GOVERNMENT EAVESDROPPING WITHOUT ANY CONNECTION TO

FOREIGN GOVERNMENT OR TERRORIST GROUP

Section 4 of H.R. 3179, the so-called ‘‘lone wolf’’ provision, would eliminate the 

‘‘foreign power’’ standard for one type of surveillance: non-citizens suspected of involvement in terrorism. The ‘‘foreign power’’ standard serves as a vital protection 

against overzealous use of the government’s ‘‘national security’’ power to wiretap, 

and otherwise secretly monitor, private communications outside the standards of 

criminal investigations. 

As I discussed earlier, the Fourth Amendment is clear—no searches without a 

warrant based on probable cause. Yet despite that clear command, the Executive 

Branch has long claimed an unwritten ‘‘national security’’ exception to the Fourth 

Amendment that allows secret domestic surveillance for foreign intelligence and 

counterintelligence outside criminal probable cause standards. 

The carefully-crafted, compromise law that keeps this exception within reasonable 

bounds is the Foreign Intelligence Surveillance Act (FISA). The law permits secret 

surveillance outside normal criminal bounds when approved by the Foreign Intelligence Surveillance Court. The government can appeal any denials (which are exceedingly rare) to another secret court—the Foreign Intelligence Surveillance Court 

of Review. 

One of the most important limitations on FISA surveillance—the requirement 

that FISA surveillance is only allowed when foreign intelligence is ‘‘the purpose’’ of 

the surveillance—has already been substantially weakened by the USA PATRIOT 

Act, which allows such surveillance when foreign intelligence is merely ‘‘a significant purpose.’’

16

4 In re Sealed Case, 310 F.3d 717 (For. Intel. Sur. Ct. Rev. 2002). 5 Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks 

of September 11, 2001, Report of the U.S. Senate Select Comm. on Intelligence and the U.S. 

House Permanent Select Comm. on Intelligence 321–323 (December 2002). 

The Foreign Intelligence Surveillance Court of Review, in its first-ever case, approved this change against a constitutional challenge mainly because the ‘‘foreign 

power’’ standard remains.4 Although FISA surveillance may now be used even 

where the government’s main purpose is other than foreign intelligence, the government must still show probable cause that the target of FISA surveillance is a ‘‘foreign power or agent of a foreign power.’’ The Court of Review, in line with other 

courts that have looked at the issue, made clear that the required connection to a 

‘‘foreign power’’—and therefore to the President’s national security powers—is a 

major reason why a separate, secret scheme of surveillance—outside the normal 

bounds of criminal investigation—is constitutional. 

The so-called ‘‘lone wolf’’ provision eliminates this ‘‘foreign power’’ standard for 

wiretapping and other secret surveillance for non-citizens suspected of involvement 

in international terrorism. Notwithstanding its limitation to non-citizens, the provision violates the Fourth Amendment because the Fourth Amendment protects ‘‘people,’’ not citizens. Certainly we can expect that the next request will be to expand 

this power to citizens, as originally proposed in ‘‘Son of PATRIOT.’’ Ultimately, this 

provision sets a dangerous precedent for all Americans, because it severs secret national security surveillance from its constitutional moorings—the President’s constitutional responsibility to defend the nation against foreign powers. 

Supporters wrongly call this unconstitutional, unwise and unprecedented provision the ‘‘Moussaoui fix.’’ They say it is needed because the government failed to 

seek a FISA warrant, before 9/11, to search suspected hijacker Zacarias Moussaoui 

and that, with this ‘‘lone wolf’’ provision, they might have done so. 

In fact, this provision is not the ‘‘Moussaoui fix.’’ FBI agents did not seek a FISA 

warrant because—even though Moussaoui was connected to a foreign rebel group—

national security bureaucrats said FISA could not be used because the rebel group 

was not a ‘‘recognized’’ foreign power. They were wrong. Congress’ own investigation 

of the pre-9/11 intelligence problems found those government officials ‘‘misunderstood the legal standard for obtaining an order under FISA.’’ The ‘‘foreign power’’

standard requires only that the government show probable cause that the person 

is an agent for some foreign government, foreign political faction or organization, 

or group involved in international terrorism—which can be as few as two individuals. A group involved in international terrorism need not be formally designated 

as a foreign terrorist organization (as these officials mistakenly believed) to be a 

‘‘foreign power’’ under FISA. Whether the foreign power is ‘‘recognized’’ is legally 

both irrelevant and meaningless. 

Finally, the investigation found that FBI agents were so quick to leap to FISA 

in the case of Zacarias Moussaoui, they did not fully consider getting a plain vanilla 

criminal search warrant. Insofar as these problems involved a misunderstanding of 

existing federal power, not a lack of power, Congress’ investigation recommended 

greater legal training for national security officials.5

How, then, should we monitor terrorists who may be acting alone? The answer 

is simple—with ordinary search warrants and wiretaps, based on probable cause. 

Criminal warrants and wiretaps have long been available for federal crimes, including terrorism. Rather than distorting foreign intelligence surveillance, the government should use the tried-and-true methods of regular criminal warrants and court 

orders. 

Indeed, while this proposal has been pending in Congress for more than two 

years, the Justice Department has been unable to explain why criminal powers are 

not sufficient to deal with individual terrorists. In a February 2003 report on FISA 

oversight, Senators Leahy, Grassley and Specter said that the Justice Department 

was unable to provide even a single case, even in a classified setting, that explained 

why the ‘‘lone wolf’’ provision was necessary. As they said, ‘‘In short, DOJ sought 

more power but was either unwilling or unable to provide an example as to why.’’

If Congress is determined to go forward with an unnecessary ‘‘lone wolf’’ provision, it should at least adopt a provision that gives the Foreign Intelligence Surveillance Court some discretion to deny a wiretap request where the evidence clearly 

shows there is no connection to any foreign threat. For example, as Senator Feinstein has proposed, Congress could establish a presumption that a non-citizen is 

connected to a foreign power based on evidence of involvement in international terrorism. 

17

6 H.R. Rep. No. 106–981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct. 

18, 2000). The bill, as amended, passed on a voice vote. Three members filed dissenting views. 

EXPANDING THE POWER TO USE SECRET EVIDENCE AND SECRET SURVEILLANCE

INFORMATION IN CRIMINAL AND IMMIGRATION CASES

Finally, sections 5 and 6 of H.R. 3179 also tip the balance towards the government, and away from the individual, when the government seeks to use secret evidence—classified information—against an individual in legal proceedings without revealing the information to the accused. 

Section 5 takes away some of the judge’s discretion in handling classified information in criminal proceedings under the Classified Information Procedures Act 

(CIPA). It requires a federal judge to hear a government request to delete classified 

information from documents made available to the defendant during discovery proceedings in camera and ex parte—that is, in secret without hearing from the other 

side. It also allows the government to make this request orally, rather than in writing. While it still permits the judge to deny the government request to delete classified information, or to order a more complete summary, it nevertheless represents 

an incremental shift of power away from the court and towards the prosecutor. Congress should hear much more from both prosecutors and defense lawyers with experience in this area before making such a change, in order to determine whether the 

effect may be much larger than intended. 

Section 6 of the bill is a major shift in favor of greater use of secret information 

in immigration proceedings. Section 6 amends the Foreign Intelligence Surveillance 

Act (FISA) to permit the government secretly to use FISA-derived information in 

immigration cases. Section 6 would amend FISA to eliminate very important safeguards that are designed to ensure that when secret foreign intelligence wiretaps 

and other surveillance are used to put a person’s liberty in jeopardy, he has notice 

and an opportunity to challenge whether the surveillance was lawful. Under this 

change, however, a person could face lengthy detention, and ultimately deportation, 

without ever knowing about the government’s use of secret surveillance information 

or having the ability to challenge it. 

Mr. Chairman, this issue is, as many of you know, dear to my heart. I firmly believe it is simply un-American for our government to withhold critical information 

from an individual whose liberty is in jeopardy. Star chamber proceedings have been 

the hallmark of totalitarian governments, not our own. As a result, when I served 

in this illustrious body and on this Committee, I worked across party lines to author 

the ‘‘Secret Evidence Repeal Act’’ (H.R. 1266 in the 107th Congress), which would 

have ensured that individuals in immigration proceedings had the same access to 

a summary of classified information as those in criminal proceedings. My bill attracted the support of over 100 cosponsors and after two hearings passed this Committee with a vote of 26–2 in favor of my substitute.6 Unfortunately, however, the 

Secret Evidence Repeal Act was not passed by the full House and is not, as a result, 

the law of the land. While I am certainly gratified that President Bush has pledged 

publicly not to allow classified information in immigration proceedings, the government still claims the power to do so and a future Administration is free to reverse 

that policy, as is this one. 

The passage of section 6 of H.R. 3179 would seriously undermine this Committee’s 

efforts to reform the use of classified information in immigration proceedings. Put 

simply, section 6 goes beyond allowing the use of secret evidence. It allows the secret 

use of secret surveillance information. Not only would the defendant have no right 

to see the classified information, derived from FISA surveillance, that is being used 

against him in the immigration case, he would not even have the right to be notified 

that such information was going to be used, and obviously would have no ability 

to challenge it. 

Amending FISA to allow the secret use of such secret surveillance information in 

immigration cases is an idea that simply flies in the face of the House Judiciary 

Committee’s commendable efforts to reform the use of classified information and end 

the use of secret evidence. 

There is also some dispute about whether the amendment would really affect only 

immigration proceedings, or would affect a wide range of civil proceedings, including 

asset forfeiture, tax, and regulatory proceedings. I understand the drafters intended 

to limit the amendment to immigration proceedings. However, even with a clarification, I caution you that allowing the secret use of secret surveillance in one type of 

civil case—in this case, immigration proceedings—can and will be used as a precedent when the Justice Department comes back to you and asks for this exception 

in other types of civil cases. 

18

CONCLUSION

As a former CIA official and federal prosecutor, I witnessed first-hand how much 

of our national security apparatus—even our counter-terrorism and international intelligence work—is built on very basic policing methods. From your local grifters to 

the Bin Ladens of the world, bad guys are generally found and punished using a 

system that includes basic checks and balances on government power and which 

militates against dragnet investigative fishing expeditions. 

In many other countries, it is neither acceptable nor lawful to reflect openly on 

and refine past action. In America, it is not only allowable, it is our obligation, to 

go back and reexamine the decisions made by the federal government during the 

panic of an event like September 11th. 

Of course, a country suffering through the immediate fallout from the worst terrorist attack on American soil ever is going to make some mistakes. To err isn’t just 

human, it’s a direct result of representative democracy. 

Case in point: myself. I voted for the USA PATRIOT Act. I did so with the understanding the Justice Department would use it as a limited, if extraordinary power, 

needed to meet a specific, extraordinary threat. Little did I, or many of my colleagues, know it would shortly be used in contexts other than terrorism, and in conjunction with a wide array of other, new and privacy-invasive programs and activities. 

According to a growing number of reports, as well as a GAO survey, the Justice 

Department is actively seeking to permit USA PATRIOT Act-aided investigations 

and prosecutions in cases wholly unrelated to national security, let alone terrorism. 

This should not be allowed to continue. As my esteemed colleague in the House, 

former Speaker Newt Gingrich wrote recently, ‘‘in no case should prosecutors of domestic crimes seek to use tools intended for national security purposes.’’ When we 

voted for the bill, we did so only because we understood it to be essential to protect 

Americans from additional, impending terrorist attacks, not as tools to be employed 

in garden-variety domestic criminal investigations. 

With conservatives expressing these serious doubts about the reach of the USA 

PATRIOT Act, it is time to go back and review the law, hold oversight hearings and 

consider corrections. It is certainly not the time to consider making it permanent 

or expanding it. 

Conservative or liberal, Republican or Democrat, all Americans should stand behind the Constitution; for it is the one thing—when all is said and done—that will 

keep us a free people and a signal light of true liberty for the world. Thank you 

again for allowing me to testify.

Mr. COBLE. Thank you, Mr. Barr, and thanks again to all the 

witnesses. 

Gentlemen, we apply the 5-minute rule to ourselves as well, so 

when we question you, if you can limit your answers as succinctly 

as possible. 

Mr. Bryant, under FISA, a specially designed court may issue an 

order authorizing electronic surveillance of a physical search upon 

probable cause that the target of the warrant is a foreign power or 

an agent of a foreign power. Mr. Barr claims that this bill would 

eliminate the probable cause requirement. 

What do you say to that? 

Mr. BRYANT. That would be an inaccurate characterization, Mr. 

Chairman, of the effect of this bill as it relates to the provision calling for amending FISA, so as to allow FISA to be used in connection with so-called ‘‘lone wolf’’ terrorists or terrorists for whom the 

affiliation with an international terrorist group is unknown. 

The bill would in no way affect the current FISA standards in 

current law. That is to say, the probable cause required with respect to the identity of the subject being an international terrorist 

or a spy, a foreign power or an agent of a foreign power, is in no 

way changed by this law. So I think that would be my initial response, Mr. Chairman. 

Mr. COBLE. Mr. Barr and I were talking prior to the hearing 

commenced, and we agreed that the PATRIOT Act is going to be 

19

sputtering around for a long time, as well it should. So with that 

in mind, Mr. Barr, let me put a question to you. 

In your testimony you clearly expressed concern that the Department of Justice may well abuse its authority. Senator Feinstein 

pointed out at a recent oversight hearing that the ACLU could not 

provide her with a single instance of abuse as far as PATRIOT Act 

provisions are concerned. 

What do you say in response to that, or do you have specific evidence of abuses? 

Mr. BARR. I think, Mr. Chairman, as the cases that are being investigated and prosecuted by the Federal Government under provisions of the PATRIOT Act start to now, after a couple of years 

working their way through our court system, start to manifest 

themselves publicly in hearings and court orders and so forth—

there is a case that reaches from, I think, out of D.C. or Northern 

Virginia all the way down to Georgia, which has to do with the 

scope and applicability of nationwide subpoena power under the 

PATRIOT Act. That case is now moving forward and I think has 

established a pretty clear record of abuse in that area, the use of 

these expanded subpoena powers for fishing expeditions. So I think 

we’re going to see more of that as these cases finally work their 

way through the system. 

Of course, as the Chairman is well aware, one of the reasons why 

it’s so difficult to answer that question is because the proceedings 

are secret, so we don’t know when, for example, a FISA warrant 

is served on a repository of records, perhaps a pawn shop which engages in second amendment transactions, or a doctor’s office. They 

are gagged and they are prevented from disclosing that, so we don’t 

know how often these powers have been used or the extent to 

which they may have been abused. 

I think this also is a reason to conduct a great deal more oversight before we move to even seriously consider enactment of this 

and other similar legislation. 

Mr. COBLE. Thank you, Mr. Barr. 

Mr. Harrington, the bill before us amends the law to add enforcement mechanisms for compliance with National Security Letter requests and against illegal disclosure of such a request. Explain in 

a little more detail why we need to enforce these requests. 

Mr. HARRINGTON. Well, as I stated a little bit earlier, there have 

been several rare occasions where we have not had compliance 

with an NSL, an administrative type subpoena. In those cases we 

have no recourse currently to have that resolved in a quick and 

timely fashion. It becomes a protracted negotiation between the 

Government and the recipient of the NSL. 

Of course, the work that we do must be kept quiet and secret, 

as we try to investigate enterprises. These are cells, these are 

groups that work together. There are relationships that are formed. 

By doing it in a public venue, it would alert other subjects or other 

coconspirators and would, of course, be detrimental toward our investigation in the long run. 

Mr. COBLE. Let me get one more question in before the red light 

comes to either of you. 

20

Do NSLs violate the fourth amendment because we don’t inform 

the terrorist or the target that they’re under investigation? Any of 

you. 

Mr. BRYANT. I would be pleased to respond, Mr. Chairman. They 

don’t. Terrorists have no such fourth amendment right. NSLs are 

akin to administrative subpoenas. As you know, Mr. Chairman, 

Federal law currently provides for 335 different administrative subpoenas to use in a wide variety of crimes, crimes that don’t rise to 

the magnitude of terrorism or espionage. NSLs, National Security 

Letters, can only be used in connection with an investigation of an 

international terrorist or a spy. That’s it. 

Mr. COBLE. Mr. Barr, do you want equal time on that? 

Keep in mind my red light is on, so make it quick, if you will. 

Mr. BARR. Yes, sir, Mr. Chairman. 

The problem is, of course, that the fourth amendment applies to 

persons, not just citizens, and it applies to people who have not yet 

been convicted. Certainly from the Government’s standpoint, they 

may believe that these people are terrorists, but until they are 

proven as such through judicial proceedings, they are persons 

under the fourth amendment. 

Insofar as provisions of the PATRIOT Act and provisions of H.R. 

3179 would prevent them from knowing that there is evidence 

going to be used against them that has been gathered under FISA, 

as opposed to the standard applicable under the fourth amendment, yes, it would result in, could result in, a violation of their 

fourth amendment rights. 

Mr. COBLE. My time has expired. I recognize the gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

One hardly knows where to begin. I heard a colloquy about the 

terrorist. That assumes the terrorist was convicted or that he was 

being tried to determine whether he was a terrorist. A kind of important consideration, wouldn’t you think? I mean, we’re saying the 

terrorist and what his rights are, as if there had been a trial that 

determined he had committed acts of terror. 

Anyway, let’s begin with the recognition that right now FISA applies to immigration cases, right? 

Mr. BRYANT. It applies—if I might, Mr. Chairman, it applies in 

investigations in connection with international terrorists and spies. 

Put differently, it applies in connection with investigations of foreign powers or agents of foreign powers. The FISA surveillance 

tools—— Mr. CONYERS. Yes or no? 

Mr. BRYANT. Is the question does FISA apply in immigration proceedings? 

Mr. CONYERS. Yeah. 

Mr. BRYANT. It is the case that——

Mr. CONYERS. Yes or no? 

Mr. BRYANT. The law allows FISA-derived information to be used 

in immigration cases. 

Mr. CONYERS. Mr. Harrington, FISA applies to immigration 

cases? 

Mr. HARRINGTON. I would have to defer. I’m not an attorney. 

Mr. CONYERS. Okay. 

21

Mr. Barr, welcome to the Committee again. FISA applies to immigration cases? 

Mr. BARR. It can apply to immigration cases. 

Mr. CONYERS. And what this bill is doing is going beyond the 

present application of FISA to immigration cases, right, Mr. Bryant? 

Mr. BRYANT. No, sir, that’s not—— Mr. CONYERS. It isn’t going beyond? 

Mr. BRYANT. No, sir. It does not affect, in any respect, the requirement—— Mr. CONYERS. Well, what does it do, then, if it’s not going beyond 

the existing law? 

Mr. BRYANT. It’s improving existing law. I thought your question 

was, is it extending FISA in the immigration setting? 

Mr. CONYERS. It’s not going beyond the law; it’s improving the 

law? 

Mr. BRYANT. It’s not increasing the application of FISA information in immigration——

Mr. CONYERS. And this isn’t PATRIOT II. This is just enhancing 

PATRIOT I, right? Right? 

Mr. BRYANT. This does not—— Mr. CONYERS. Yes or no. 

Mr. BRYANT. No. 

Mr. CONYERS. Oh, it doesn’t enhance PATRIOT I? 

Mr. BRYANT. No. It is not specific to the PATRIOT Act, Mr. Conyers. These are additional provisions which speak to important 

counterterrorism tools. 

Mr. CONYERS. It’s not doing anything to the PATRIOT Act? 

Mr. BRYANT. It is not——

Mr. CONYERS. Okay. 

Mr. Barr, can you help us out here? 

Mr. BARR. I certainly don’t want to get crosswise with my friend 

and Assistant Attorney General, but I think that, very clearly, the 

intent of H.R. 3179 is to grant additional powers to those already 

granted under the PATRIOT Act, in the very same areas addressed 

by the PATRIOT Act. 

Mr. CONYERS. Of course. 

Now, since we’re into this semi-denial mode, let me ask you 

about the PATRIOT Act II that’s been widely known to have been 

drafted in the Department of Justice for months. Mr. Bryant? 

Mr. BRYANT. Yes, sir. 

Mr. CONYERS. Yeah. What? What is the response? 

Mr. BRYANT. I’m sorry. I didn’t understand the question, Mr. 

Conyers. 

Mr. CONYERS. I said what about the widely-known fact that PATRIOT II was being drafted in the Department of Justice for 

months? 

Mr. BRYANT. We have not——

Mr. CONYERS. You don’t know anything about it? 

Mr. BRYANT. We have been working with Congress extensively 

over the last 2 years to—— Mr. CONYERS. Well, I’m in Congress. 

Mr. BRYANT.—to provide additional——

Mr. CONYERS. They haven’t been working with me. 

22

Mr. BRYANT. We stand ready to, sir. 

Mr. CONYERS. Well, let me ask you this. 

Good night, man. I’m spending a lot of time on ancient history. 

Everybody knows that in town. I mean, read the Washington Post. 

They have been drafting FISA, redrafting FISA, re-redrafting 

FISA. 

Let me ask you this. Did you know that the PATRIOT bill that 

came out of this Committee was substituted by the Department 

that you work in the night before it went to Rules? Did you know 

that? You didn’t know that, either? 

Mr. BRYANT. No, sir. 

Mr. CONYERS. And you worked in the Judiciary Committee. 

Mr. BRYANT. Of course, we can’t substitute legislation that this 

Committee——

Mr. CONYERS. Well, it happened. What do you mean you can’t do 

it? 

Mr. BRYANT. We don’t have a vote on this Committee, sir. 

Mr. CONYERS. Please help me control myself. 

What do you mean you can’t do it? You did it. The bill that we 

sent to the Rules Committee was replaced by another bill that nobody had seen. Was that at your request? 

Mr. BRYANT. The substitution? 

Mr. CONYERS. Yes. 

Mr. BRYANT. If the question is, did we support the substitution, 

then the answer is yes. 

Mr. CONYERS. That’s the question. Was it at your request? 

Mr. BRYANT. Were we urging that the bill reported out of Committee be further improved? We were. 

Mr. CONYERS. Right. So don’t give me this business about you 

never can do this or—You’re the one that did it. 

Mr. COBLE. Mr. Conyers, your time has expired. 

Mr. CONYERS. Okay. 

Mr. COBLE. If you want to wrap up, Mr. Conyers—— Mr. CONYERS. No, no. I need another round. 

Mr. COBLE. All right. Very well. 

The gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Barr, welcome. We are very pleased to have your participation, as well as the representatives of the Justice Department. 

Quite frankly, when we wrote the PATRIOT Act the first time, 

regardless of some view of the process, we gave it very intense 

scrutiny. There were a number of things requested by the Justice 

Department that we did not agree to and took off the list right 

away. Most everything else was very closely and carefully discussed and in some sense negotiated amongst Members of this 

Committee. 

I think that the final product is a good product. The fact of the 

matter is, when you do something like this and you change things 

in a very sensitive area—and I’m sensitive to both civil liberty concerns and law enforcement concerns—you don’t necessarily know 

the impact that you’re going to get. So we added what I’m in favor 

of doing with more legislation, and that is sunset provisions on a 

great many of the provisions of the PATRIOT Act. A number of the 

other provisions are very much common sense, simply provisions to 

23

update things that were needed in the law, and I think that is the 

same approach that we should take to any new requests for 

changes in the law. 

Mr. Barr, I’m wondering if that’s your philosophy as well. In reviewing your statement, I notice that toward the end of page 1, you 

state, as I recall—you did, you voted for the PATRIOT Act—‘‘with 

the understanding that the Justice Department would use it as a 

limited, if extraordinary power needed to meet a specific extraordinary threat.’’ Yet earlier in your statement, you say that the Attorney General 

has said he hasn’t used some of the powers, which I am absolutely 

certain is true. This is a very lengthy piece of legislation and includes many, many provisions, some of which may not have been 

exercised, and quite frankly, if law enforcement doesn’t need to exercise something, I don’t think they should. You then question 

whether those powers were needed. 

I’m just wondering, if the Attorney General has not, in fact, used 

the powers, is that good or bad that he hasn’t used them? 

Mr. BARR. Well, we don’t know until we have more information. 

I think the gentleman’s question goes to the heart of the need for 

additional oversight so that we can get answers to those questions, 

the answers which lie only in the breast of the Department of Justice. 

I think it’s important to recognize or to conclude that if, in fact, 

some of these extraordinary provisions which at the time the PATRIOT Act was submitted and defended by the Administration 

when it was brought up to the Hill were portrayed as absolutely 

essential to fight terrorism have not, in fact, been used, then I 

think there ought to be, particularly from a conservative standpoint, a presumption that they are not needed and that they ought 

to be taken from the Government and given back to the people, and 

at such time as the Government feels and can demonstrate the 

need for those powers, to then at that time come back to the Congress and ask for them and justify them. 

Mr. GOODLATTE. Are these particular powers amongst those that 

would expire at the end of next year? 

Mr. BARR. Some of them, but as the gentleman from Virginia 

knows, unfortunately, despite our joint efforts to have the number 

of provisions of the USA PATRIOT Act sunsetted much broader 

than we wound up with, a lot of the problematic provisions such 

as the ‘‘sneak and peak’’ and the 215 provision are not sunsetted. 

This is a problem. 

Mr. GOODLATTE. But the examination—and I fully agree with 

you, that we need to exercise a considerable oversight over the use 

of the PATRIOT Act to make sure that it is being used as intended, 

and certainly one of the questions, as always, whether something 

is, indeed, needed. But there have been those who advocated that 

we pass legislation, I think prematurely, to lift those sunset provisions and make the PATRIOT Act permanent, and on the other 

hand, there are those who would like to take steps to repeal portions of it, what I also think are premature. I think we ought to 

allow it to operate for the amount of time that the Congress designated, and then, as it approaches the sunset provisions for some 

of the provisions, use that as an opportunity to examine all of the 

24

provisions in the act. While some may not automatically sunset, we 

certainly have the ability and the authority to examine those that 

do not sunset and determine whether they aren’t used or are not 

necessary or have been abused, in which case we can do that. 

But I so far have not seen a tremendous amount of evidence from 

anybody regarding misuse of the PATRIOT Act. I wonder if you 

would want to comment on that, if Mr. Chairman would allow that, 

since my red light is on. And then I would also ask if Mr. Bryant 

could respond as well. 

Mr. BARR. Again, in the interest of time, not to repeat my answer 

to a question that the distinguished Chairman raised earlier, we 

don’t really know at this point because of the secrecy attendant to 

so many of these provisions and the use of these provisions by the 

Government. The Committee, through vigorous oversight, and the 

Subcommittee, certainly can get to the bottom of it, and I think 

should. 

But, of course, ultimately the question of whether or not a provision of the law, including those that bring us here today, are constitutional has nothing to do with how many times they are used 

or whether they’ve been abused. They are unconstitutional ab 

initio. That, I think, is a problem with some of what is going on 

here. 

Mr. COBLE. The gentleman put his question before the red light 

appeared, Mr. Bryant, so you may answer briefly, if you will. 

Mr. BRYANT. Yes, sir. 

Mr. Goodlatte, in response to the question is it good or bad that 

certain sections haven’t been used, I think we reflect on and ask 

the same question, is it a good or bad thing that a law enforcement 

officer has a firearm but doesn’t have to use it. The fact that discretion is shown, restraint is shown, in connection with utilizing authorities or powers that are granted law enforcement or 

counterterrorism capability, we think is a good thing. 

In terms of the question of the sunsets, we think Congress did 

a very good job in passing PATRIOT. We think the sunsets should 

not be realized; that is to say, we think the sunsetted provisions 

should not, in fact, sunset but should be continued. We support 

their reauthorization. We stand ready to continue working with 

this Committee and Congress to ensure careful oversight of how all 

of the authorities, including the sunsetted authorities, are being 

used. 

We think with PATRIOT the angel is in the details, not the devil 

is in the details. We think that you all deserve the details, the 

American people deserve the details, and that that will——

Mr. COBLE. The gentleman’s time has expired. Thank you, Mr. 

Bryant. 

The gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I noted, Mr. Bryant, you said that these investigations and National Security Letters were in conjunction with the investigation 

on terrorism, and terrorists don’t have rights that others might 

have. 

Do I understand that once you get a letter, the investigation is 

in connection with the terrorist investigation but they can be 

served on anybody? 

25

Mr. BRYANT. NSLs can be used by the FBI in connection with 

duly authorized investigations of international terrorism or espionage, and can be served on third parties—specified certain congressionally-articulated third parties—who have relevant information 

to that investigation, that’s correct. 

Mr. SCOTT. Like law-abiding citizens? 

Mr. BRYANT. To designated institutions, such as financial institutions or credit reporting agencies——

Mr. SCOTT. Under the bill, a pawn shop? 

Mr. BRYANT. Yes, a pawn shop, which has become——

Mr. SCOTT. A law-abiding pawn shop can be subject to one of 

these things. They get issued not by the Attorney General but get 

issued by the local guys? 

Mr. BRYANT. This is a request for information that, under statute, can be issued by the FBI. 

Mr. SCOTT. The local guys can do this? 

Mr. BRYANT. No, it has—Congress has designated how it can be 

delegated, and I believe it can be delegated to the special agent in 

charge——

Mr. SCOTT. Local? 

Mr. BRYANT. Yes, who is sometimes local, is in the region. 

Mr. SCOTT. And once the local guy issues one of these things and 

you get one, you have to comply, you can’t tell anybody, and if it’s 

abusive, how do you complain? 

Mr. BRYANT. A couple of points, Congressman. This is important, 

so I would like to try to get it right. 

With respect to not being able to tell anybody, it is the position 

of the Department that the recipient of an NSL can confer with 

counsel, with a lawyer, with an attorney. We believe that’s an implied exception in the law, and we would be pleased to work with 

you as this legislation is——

Mr. SCOTT. So you are pleased to put that in the bill, that consultation with an attorney does not violate the disclosure from——

Mr. BRYANT. That’s correct. 

Secondly, with respect to compliance, the sanctions that currently don’t exist, that this bill would call for, only apply to breaching the nondisclosure requirement. In order for there to be sanctions in connection with not complying with the request, the Justice Department would have to enforce the National Security Letter 

in court, and the penalty then would be sanctions applied by the 

court in connection with the failure to comply. 

Mr. SCOTT. If you’re complaining or protesting, you know, you explain it to a judge and you’re on the barrel end of a 5-year sentence 

if you happen to lose. 

Let me move on to these ex parte proceedings. How many ex 

parte requests have been denied by judges? 

Mr. BRYANT. I don’t know the answer to that, Congressman. 

Mr. SCOTT. Do you know if any have been denied? 

Mr. BRYANT. It’s my understanding that ex parte in connection 

with CIPA, the Classified Information Procedures Act, that requests for CIPA authorizations are denied. 

Mr. SCOTT. Some are denied? 

Mr. BRYANT. Yes, sir. 

26

Mr. SCOTT. If this bill passes, will the defendant know that an 

ex parte proceeding went on? 

Mr. BRYANT. The defendant might have reason to know that an 

ex parte in camera proceeding has occurred. The defendant 

wouldn’t, by definition, know necessarily or would not know what 

occurred in that proceeding. 

Mr. SCOTT. Would he necessarily know that it went on? 

Mr. BRYANT. No. 

Mr. SCOTT. Would there be a reviewable record of what went on? 

Mr. BRYANT. The proposed change in this bill would allow the requested CIPA authorization to be made orally, so as to expedite the 

request and judicial determination. 

Mr. SCOTT. So if the information was misleading, you know, kind 

of confusing, there wouldn’t be anything to review; is that right? 

Mr. BRYANT. I’m unaware that there would be a record to review. 

Mr. SCOTT. There wouldn’t be a transcript. 

Mr. BRYANT. That’s correct. 

Mr. SCOTT. So if the judge was allowed to, there wouldn’t be any 

transcript. 

If the judge decides that he really doesn’t agree that it ought to 

be ex parte and he would like to hear from the defendant, under 

this bill he can’t do it, is that right? 

Mr. BRYANT. Well, under current law a judge is not free to discuss any and all classified information with the defendant, absent 

provisions specifically made for that. 

Mr. SCOTT. Or defense counsel? 

Mr. BRYANT. That’s correct. 

Mr. SCOTT. If he decides that he would like to discuss with counsel who has a security clearance, this bill would prevent him from 

involving the defense counsel in the decision, is that right? 

Mr. BRYANT. That’s my understanding. 

Mr. SCOTT. I had one quick technical question, Mr. Chairman. Do 

you have the bill before you? 

Mr. BRYANT. I do. 

Mr. SCOTT. On page 4, line 15. 

Mr. BRYANT. Mine might not have the same pages, Congressman 

Scott. 

Mr. SCOTT. Section 6, the first sentence. 

Mr. BRYANT. Uh-huh. 

Mr. SCOTT. Where it says in parenthesis ‘‘other than in civil proceedings or other civil matters under the immigration laws,’’ I’m 

assuming that it means civil proceedings under immigration laws 

or other civil matters under immigration laws. 

Mr. BRYANT. Yes, that’s our reading of the meaning of the text 

of the bill. 

Mr. SCOTT. Okay. 

Mr. COBLE. I thank the gentleman. 

The gentleman from Indiana, Mr. Pence. 

Mr. PENCE. I thank the Chairman. Thank you for holding this 

hearing. I want to thank the witnesses, and I apologize for arriving 

a little bit late. I have a couple of questions. 

It’s good to see Mr. Bryant here. I real with great relish the story 

of 310 individuals charged and 179 convicted, terrorist cells broken 

up in Buffalo, Charlotte, Portland, and Northern Virginia. Mr. BryVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
27

ant, I would just say—and I hope you convey to your colleagues at 

the Department of Justice—the gratitude of the people I represent. 

Mr. BRYANT. I’ll be pleased to, Congressman. 

Mr. PENCE. We appreciate you. I do not consider it luck that we 

have been without a major terrorist event on American soil in the 

days since September 11th. 

Also, I am grateful to see my good friend and former colleague, 

Congressman Barr, here. I think I may actually be physically occupying what many of us call on the Committee the ‘‘Bob Barr’’ chair 

in the upper shelf. I appreciate your passion for civil liberties. 

Mr. BARR. If you are, Mr. Pence, be aware that there’s a trap 

door underneath, which my colleagues wanted to use frequently. 

[Laughter.] 

Mr. PENCE. I honestly find myself, I would say to the panel, 

somewhere between my good friend, Mr. Barr, and the Department 

of Justice on this. So I have a couple of quick questions. 

I would really echo Mr. Barr’s statement, prepared statement. I 

literally was added to this Committee, unlike some of my distinguished colleagues, I was added to this Committee 1 week before 

the PATRIOT Act was passed. I haven’t crammed for a test like 

that since my law school days. 

But it was axiomatic to me at that time that we were creating 

temporary powers and focused on confronting a specific threat to 

our country, so I do want ever to have Congress hold to that theory 

in force the temporary elements of the PATRIOT Act, where possible, and where it’s prudent to do so. I also want to be very careful 

about expanding even in the area of, to use Mr. Barr’s language, 

the PATRIOT Act. 

But I am also intrigued, Mr. Bryant, and I would like you to 

speak to this ‘‘lone wolf’’ idea. It seems to me that in the days since 

September 11th we have gotten to know our enemy better through 

hard labors and confrontations, I think, of the circumstances that 

occurred prior to the elections in Spain, where in testimony before 

the International Relations Committee John Bolton told me that he 

did not believe al-Qaeda today was operating from a central command but rather from disparate groups and individuals. 

I just would like to ask you a fairly open-end question, Mr. Bryant. Could you explain to me how the instant bill addresses that 

‘‘lone wolf’’ whole, where we are relegated to dealing with issues 

under essentially domestic criminal law? What is the benefit in this 

bill for us when we can’t establish a direct nexus to a terrorist organization or group of terrorists? 

Mr. BRYANT. Yes, sir. The question that we have sought to address in thinking about this ‘‘lone wolf’’ or unaffiliated terrorist circumstance is whether or not the benefits, the strengths of the FISA 

regime, and the protections that are built into the FISA regime, 

should be brought to bear in connection with a terrorist whose affiliation with a foreign terrorist organization is unknown. 

We think the answer is yes, because the potential catastrophic 

consequences of an international terrorist—and this provision 

would only apply to non-U.S. persons—whether or not an international terrorist perpetrating or seeking to perpetrate a terrorist 

incident should be able to be pursued with the FISA tools that are 

28

currently deployable against an international terrorist whose affiliation with an international terrorist organization is known. 

Mr. PENCE. Let me interrupt before my time runs out. 

Mr. Barr, could you speak to that? Does the ‘‘lone wolf’’ style of 

terrorism, does it give you pause? Is your concern here with haste, 

or is it with the substance of that specific proposal? 

Mr. BARR. It’s with the substance. I don’t think that, in my experience as a prosecutor and as a Member of this Committee engaging in oversight of the Justice Department for 8 years, I’m not 

aware of any instance in which failure of judges to operate quickly 

if the Government related to them exigent circumstances was a 

problem. 

What we have here, though, is the fact that—I think one thing, 

from a practical standpoint, Mr. Pence, that is important is the instance of a true ‘‘lone wolf.’’ That is, a suspected terrorist with absolutely no ties to anybody, that he manufactured the so-called— whatever the device was in his basement, he didn’t deal with anybody outside of his own house and so forth—I think that’s unrealistic. So what we’re talking about from a realistic standpoint, when 

we talk about a ‘‘lone wolf,’’ is a person that, while perhaps the 

Government isn’t able to link them to a formal organization, they 

do have contacts. And under existing FISA standards, without removing the nexus to foreign power, the Department of Justice can 

go after that person if they show as little as there is one other person with whom they are dealing as part of their conspiracy or their 

activities. 

This provision is simply unnecessary to break that important 

link between the President’s national security power and the extraordinary power of gathering evidence outside of the fourth 

amendment. That’s why I think it’s so important that we not do 

this, and certainly not until the Government has come forward and 

laid out a much stronger need for it. 

Mr. COBLE. The gentleman’s time has expired. 

Did you have another question, Mr. Pence? 

Mr. PENCE. It just appeared to me, Mr. Chairman, that Mr. Bryant wanted to react to that. I would be grateful to have him do so, 

if the chair would permit it. 

Mr. COBLE. Is there further response? Mr. Bryant. 

Mr. BRYANT. I would be pleased to respond to Mr. Pence, Mr. 

Chairman, if you would permit. 

Mr. COBLE. Why don’t you suspend for a moment. We’ll have a 

second round, so we will do that on the second round, Mr. Pence. 

The gentlelady from California, Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I am almost stunned at what we have already done, invading the 

privacy of American citizens with the PATRIOT Act, and violating 

the Constitution of the United States. I am absolutely amazed that 

we keep pushing further to do it and that the American people are 

not responding in a profound way. 

I suspect that it is just a matter of time before this will backfire 

on us, just as the interrogations in Iraq are backfiring. In the name 

of terrorism, we have given ourselves permission to violate the 

Constitution, to violate privacy, to basically violate human beings 

in some extraordinary ways. For those who were so heady that 

29

they felt they could do interrogations and not have to think about 

the Geneva Convention and all of that, I think we’re traveling 

down the same road with PATRIOT Act II, with no oversight and 

expansion. 

Let me ask Mr. Bryant to describe to us—and you probably did 

it already and I’m sorry if I’m asking you to repeat. Describe to me 

the gag provision of the National Security Letters. Describe as accurately as you possibly can what that gag provision mandates, 

what does it say, what does it allow or not allow someone to do or 

not to do? 

Mr. BRYANT. Under current law, Congresswoman Waters, the recipient of a National Security Letter, which is akin to an administrative subpoena, limited to the context where there’s a duly authorized investigation of an international terrorist or a spy, the recipient of an NSL, a National Security Letter, is obligated, under 

current law, not to disclose the fact that they have received that 

NSL. 

The reason that Congress has found compelling and caused Congress to provide this nondisclosure requirement is that to not require nondisclosure is to allow the recipient to talk about the fact 

that the NSL, pursuant to an international terrorism investigation, 

has been received, to tip off others, to tip off associates. 

Ms. WATERS. Okay, that’s good. Let me just stop you for one moment so that I can understand. 

The recipient of one of these letters could or could not be someone involved in terrorism? Anybody could get one? 

Mr. BRYANT. Anyone who has been designated within the category of third parties that are eligible to receive them, so it’s a limited category. Financial institutions, it’s communications transactions, communications providers, it’s credit bureaus—— Ms. WATERS. Libraries? 

Mr. BRYANT. Yes, they fall under the definition. 

Ms. WATERS. Okay. So—— Mr. BRYANT. That is, they fall under the definition if they provided Internet services. 

Ms. WATERS. So describe to me, so I can really understand, if a 

library receives one of these letters and they ask them for extensive information related to the checking out of books, materials, 

and other kinds of activities of individuals in that library, then 

you’re saying that that library, no one associated with it, can tell 

anybody, they can’t raise any questions about it, they can’t do anything; is that correct? 

Mr. BRYANT. The request has to be for relevant information. 

There is no——

Ms. WATERS. Who decides relevant? 

Mr. BRYANT. Well, in the first instance, the FBI, which is 

issuing. But there is no sanction for this library in this hypothetical for not complying. The only sanction is if they disclose the 

receipt of it. What that means is they do not have to immediately 

comply with the request, in terms of its scope. They can respond 

to the FBI that the scope of that NSL is unreasonably broad. They 

are not going to be sanctioned for having that as a response. The 

FBI and the recipient can then discuss the proper scope of the request to ensure that it is only for relevant materials. 

30

The only sanction that could be brought to bear against the recipient is if the FBI sought to judicially enforce the NSL and the 

court were to enforce it at that point, if the recipient were to still 

not agree to comply, then there could be sanctions imposed by the 

court. 

Ms. WATERS. You’re asking for penalties now? 

Mr. BRYANT. For nondisclosure, that’s right. 

Ms. WATERS. Not simply for nondisclosure. 

Mr. BRYANT. The penalties would be, in the first instance, for 

knowing violation of the nondisclosure requirement, a 1-year penalty for a knowing violation, a 5-year penalty for a knowing violation with the intent to obstruct the ongoing investigation. Those 

are the two sanctions. 

Ms. WATERS. Tell me about that aspect of it, where the librarian, 

what not, could not call an attorney, could not call in anyone to say 

‘‘what is this? What have I got here? Do I have to comply with 

this?’’ Would that be a violation of any kind? 

Mr. BRYANT. It is the position of the Department that the recipient of an NSL can confer with their attorney in connection with the 

receipt of that NSL. 

Ms. WATERS. Who is it they cannot confer with? 

Mr. BRYANT. They can confer only with counsel in connection 

with the receipt of the NSL. So they would be prohibited from conferring more broadly. 

Ms. WATERS. What about a relative? What about a wife? What 

about anybody else? 

Mr. BRYANT. I think it’s important to remember that we’re talking about only two kinds of investigations here: an international 

terrorism investigation or an espionage—— Ms. WATERS. The librarian is not a terrorist. The librarian is 

being asked to disclose information on other people who have used 

that library, who have access information in some way. 

What you’re telling me is, in addition to failure to disclose or 

nondisclosure, that this gag order says you’ve gotten this request 

and you can’t talk about it with anybody. You’re saying they can 

confer with an attorney, is that what you’re saying? 

Mr. BRYANT. A recipient can confer with an attorney, but this is 

a terrorism investigation, and broadly communicating the receipt of 

such an NSL poses real risks to national security. So Congress, 

going back to 1986, when NSLs were first passed, has seen appropriate to impose—— Ms. WATERS. So what if this librarian talks with his wife about 

it? Then what could happen to that librarian? 

Mr. COBLE. If the gentleman will suspend, Ms. Waters, if you 

would wrap up, we need to hear from the gentlelady from Texas 

before we go to vote. 

Mr. Bryant, you may respond to that. 

Ms. WATERS. I appreciate that. 

Mr. BRYANT. The only exception, Congresswoman, that is implicit 

in the statute, or that is provided for, has to do with—— Ms. WATERS. Just what would happen to the librarian if he 

talked to his wife. 

Mr. BRYANT. If a recipient of an NSL speaks to someone other 

than counsel, that would be viewed as a violation of the nondiscloVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
31

sure requirement. Currently, there is no sanction in the law in connection with—— Ms. WATERS. So the gag would give him 5 years, could cause him 

to be convicted and 5 years in prison? 

Mr. BRYANT. Under this bill, a recipient—we’ve been discussing 

this in the context of a librarian, but only libraries which provide 

Internet services could conceivably—— Ms. WATERS. I don’t care who it is. I’m talking about a human 

being who gets one of these letters, who talks about it with a wife, 

a family member, a close friend, another colleague, they could go 

to prison for 5 years; that’s what you’re telling me. Is that right? 

Mr. BRYANT. Under this bill, there is a 1-year prison term, up to 

1 year, provided for the knowing disclosure in violation of——

Ms. WATERS. And what triggers the 5 years? 

Mr. BRYANT. The 5 years, it has to be of the wilful intent to obstruct an ongoing investigation——

Ms. WATERS. Thank you, Mr. Chairman. This is so outrageous, 

I don’t need to hear any more. Thank you very much for the extended time. 

Mr. COBLE. Folks, we are going to have a vote in just a minute, 

and I want to recognize the gentlelady from Texas. But did the 

Ranking Member of the full Committee want to be heard? 

Mr. CONYERS. I would like—— Mr. COBLE. Before I recognize the gentlelady from Texas. 

Mr. CONYERS. Oh, no. By all means, the gentlelady from Texas 

may proceed me almost always. 

Mr. COBLE. The gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. The Ranking Member ranks, and if the Ranking Member seeks to clarify and/or speak? 

Mr. CONYERS. I will wait. 

Ms. JACKSON LEE. I thank the Chairman very much, and I thank 

the Chairman of the Subcommittee. 

Let me first of all thank the witnesses. Mr. Barr, welcome. It is 

a pleasure to see you, and I am going to start with you, and if I 

might, I’m not sure if you took your testimony verbatim, but I’d 

like to read it into the record again. ‘‘As a student and supported of the Constitution and its component Bill of Rights, I will not concede that meeting this Government’s profound responsibility for national security entails sacrificing the right given us by God and guaranteed in that great document.’’ Would you share in your own words, even though your testimony 

might have been so, your assessment of the expanse of what we 

have been doing in the name of national security? You might allude 

to the present bill before us, but as you well know, I’m going to 

have some other questions, so if you can just get us right to the 

jugular vein, if you will, on this issue. 

Mr. BARR. I think it can be answered with two basic statements, 

Ms. Jackson Lee. One is we are making everybody a suspect until 

they can prove themselves otherwise. Secondly, we are essentially 

moving in the direction of gutting the fourth amendment with all 

of these exceptions, exceptions if you travel, exceptions if you have 

records that the Government believes are somehow related, howVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
32

ever indirectly, to a terrorism or national security investigation, we 

are allowing so many ways, sort of reverse loopholes, for the Government to secure evidence to be used against people, including 

citizens in criminal proceedings, without laying a foundation that 

they have probable cause to suspect that person has engaged in 

criminal behavior, that if we go much further—and that’s what 

we’re doing today, going further in that direction—the fourth 

amendment will be rendered essentially meaningless. 

Ms. JACKSON LEE. You took the words out of my mouth, loopholes and the expanse being gutting of one constitutional provision 

and that’s a right of reasonable search and seizure. 

My next question to you then, and taking into account this Committee’s posture when we worked in a bipartisan way to produce 

I think a PATRIOT Act that we all could have lived with and 

would have been a very effective tool of fighting terrorism. You recall those days after 9/11 the unity that was in this House was 

probably more than we had ever seen. The unity in this congressional Judiciary Committee was superior, but of course, that did 

not prevail. 

Can you tell me what light this particular legislation brings to 

the question of fighting terrorism? Following along the lines of my 

colleague’s inquiry, which is my concern, this looks like a fishing 

net, not a fishing pole, but a fishing net, where we are throwing 

out a net, and we may gather in it a number of innocent persons 

who through their own sense of freedom, meaning that we are used 

to being free in this country and may offer a conversation that is 

not in any way undermining national security, but is this legislation before us the kind of legislation that can in essence be a fishing net drawing in innocent persons, leaving them with little defense mechanisms in terms of their own defense? 

Mr. BARR. I think the gentlelady is correct. And in addition to 

that, for example, following on the discussion that the gentlelady 

and the gentlelady from California were just having with the distinguished Assistant Attorney General about the gag order and the 

penalties and so forth, if the Government of course is able to extract penalties, that is, prosecute criminally people who have disclosed beyond their attorney, which is very limited disclosure certainly, then there’s no incentive whatsoever and no way to hold the 

Government to narrow its requests under the FISA provisions. 

Secondly, such a provision that the Government seeks is unnecessary. The Government can under existing law, long-established 

existing law, seek a subpoena under seal if it believes that disclosure to third parties, that is other than the recipient of the subpoena to secure the evidence, would harm national security or 

would harm an ongoing investigation, they already have a tool to 

do that. That’s why it’s somewhat mystifying to me why the Government is now saying that it has to have this additional power, 

which they were not granted in the initial PATRIOT Act, and one 

reason they weren’t is because they already had the power then 

and they have it now. 

Ms. JACKSON LEE. Interestingly enough, I remember your debate 

in this Committee, and a number of times you recounted, with your 

past experience, the fact that the Government already had some of 

the powers that we were even discussing at that time. That’s why 

33

we tried to balance that bill at the time that we were discussing 

it. 

Mr. Bryant, welcome back, and I thank you for your leadership. 

Thank you very much, Mr. Barr. 

He makes a very valid point, and I would just like to explore it 

with you very briefly. Section 5 of this legislation takes away a defendant’s right to challenge secret evidence that the Government 

has against either—against him. My concern is can you provide an 

example, one example where a defendant has jeopardized a case 

because he or she was allowed to just petition the court to have access to this secret evidence. I say that in the context again of the 

idea of a fishing net and the idea that this Committee, this Congress, and I think the Government, should be problem solvers. We 

should not, if you will, undo or to make wrong what is already okay 

and right. 

In this instance it appears to me that the Government is coming 

forward with advocacy for a position where there has not been sufficient problems that have been discovered, and/or that you have 

presented to this Committee, or as I understand, to anyone. 

so what is the basis of having—thwarting a defendant’s right to 

understand what is going on and to give them an able defense? It 

seems to be a simple right that we have. 

Mr. BRYANT. Thank you, Congresswoman. CIPA, the Classified 

Information Procedures Act, sets up a mechanism whereby the 

Government can seek to protect classified information in a trial setting by petitioning the Court to explain ex parte and in camera 

why that information should not be disclosed. The judge is then in 

a position to redact or summarize that information for purposes of 

trial. 

To not allow the Government to seek that ex parte in camera opportunity with the judge and to not allow redactions or summaries 

of that information, is to risk disclosing classified, sensitive, national security information in an open court setting. That’s the concern that CIPA for many years has addressed and that this bill further addresses. 

Ms. JACKSON LEE. Do we have examples of defendants who have 

misused any access to secret evidence if they’ve ever gotten access 

to it? Do you have a record of such? 

Mr. COBLE. Mr. Bryant, if you would be brief, the gentlelady’s 

time has expired, but you may answer. 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. BRYANT. I am aware of examples where Government has had 

real struggles in a trial setting presenting information, given the 

fact of it being classified, and what this does is it allows the Government simply to get to a judge, who can then decline the request 

to seek redactions or summaries of that classified information. 

Ms. JACKSON LEE. Mr. Chairman, if you will just yield for me to 

have a final sentence, I would just say that justice and democracy 

is a struggle, and the problem is, is that the struggle seems to be 

heavily burdening the defendant who is now increasingly not having the opportunity for a fair trial under this new legislative initiative and certainly the PATRIOT Act. 

Mr. COBLE. I thank the lady. 

34

We have been joined by the gentleman from Ohio, Mr. Chabot. 

Do you have any comment to make? 

Mr. CHABOT. No. 

Mr. COBLE. Colleagues, let me think aloud for a minute. We have 

proposed three votes upcoming, and you are talking about close to 

an hour. So what I propose to do is to start a second round, and 

when that bell rings we will adjourn for the day, but the record will 

remain open for 1 week, so if Members have questions to put to the 

witnesses that they have not had a chance to orally submit, if all 

are in agreement with that. 

Mr. CONYERS. Mr. Chairman, could we ask for a 2-week response 

on the questions that might be sent to any of the witnesses? 

Mr. COBLE. Two-week response, without objection, 2-week response will be in order. 

I will start a second round now. 

Mr. Harrington, we have gone here, there and yonder, and appropriately so. Let me put two questions to you that can maybe bring 

us back into the deep water away from the shoals and the rocks. 

What is a national security letter? When can it be used and who 

can use it, (A)? (B) Why is a national security letter preferred over 

other types of subpoenas or court orders? These are two rather simple questions. 

Mr. HARRINGTON. I think Mr. Bryant’s laid it out very nicely a 

little while ago, but the national security letters can only be used 

in a counterterrorism or an intelligence investigation, a spy type 

investigation. Those letters are directed toward three groups primarily for electronic communication response, financial records, 

and consumer reporting records. Those are the only three areas 

that it can be used in. 

Why NSLs versus others? Our whole approach has changed since 

9/11. The walls between criminal and intelligence investigations 

have basically been taken down, as the Congress has worked with 

us to do that. All of our investigations now in counterterrorism 

start off as an intelligence investigation. Criminal provisions are 

just one tool in our tool belt basically to attack the particular organization or terrorist group that we’re trying to pursue. Certainly is 

it easier for the investigators to be able to go locally to their Special Agent in Charge, show that they have a pending investigation 

and that the NSL is warranted to obtain this information. It’s an 

abbreviated process. 

Mr. COBLE. Mr. Barr, I will give you a chance since you are on 

the, quote, other side of this issue. You want to respond to that? 

Mr. BARR. Thank you very much, Mr. Chairman. I think it’s important to recognize that the PATRIOT Act, in Section 505, dramatically weakened the—or dramatically strengthened the ability 

of the Government to secure information without that individualized suspicion, those specific and articulable facts that are so vitally important to ensure that the fourth amendment’s mandate is 

kept in mind. That’s why the Government is relying more and more 

on national security letters as opposed to judicial subpoenas or 

grand jury subpoenas, one, because they’re so easy to get, and especially with a gag order there’s no check whatsoever on what the 

Government is doing. And all they have to do, contrary to the traditional fourth amendment standard which requires that specific 

35

link for the Government to show between the information and the 

individual against whom the information is being sought, it removes that. That’s why we ought to tread so very carefully in seeking to or granting the Government the power to expand that. They 

already gained a tremendous expansion of power already under the 

PATRIOT Act section 505. 

Mr. COBLE. I thank you. 

The gentleman from Virginia. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. Now that I am feeling 

much better and have digested Mr. Bryant’s comments earlier, let 

us continue on. 

Mr. Bryant, how long have you served on the Judiciary Committee before your ascension to the Department of Justice? 

Mr. BRYANT. It would have been for a period of approximately 6 

years. 

Mr. CONYERS. Six years. Okay. Now, has there, to your knowledge, been any oversight of the PATRIOT Act? 

Mr. BRYANT. Extensive, sir. 

Mr. CONYERS. Oh? Well, would you enlighten us? Did the Judiciary Committee conduct it? 

Mr. BRYANT. I think both the House and the Senate Judiciary 

Committees have had the Attorney General testify before them 

since the passage of the PATRIOT Act——

Mr. CONYERS. That is not the same thing. 

Let me ask the Chairman of the Subcommittee. Have we conducted any oversight, sir, of the PATRIOT Act, to your knowledge? 

Mr. COBLE. I think we have, Mr. Conyers. There was——

Mr. CONYERS. Well, when? 

Mr. COBLE. June the 5th of 2003, May the 20th of 2003. That 

was the Subcommittee on the Constitution. Witnesses for—those 2 

days come to mind, John. 

Mr. CONYERS. We will clear this up. Let me get to the point. I 

notice that nobody, none of the witnesses, or at least my favorite 

witnesses, have used the term ‘‘libraries’’ or ‘‘bookstores.’’ You prefer the euphemism ‘‘communications providers.’’ And I think I know 

why you do that. But here’s the problem that we’re having. We do 

not feel that there is any necessity to go beyond where we are now. 

You mentioned 179 convictions, Mr. Bryant, right? and what were 

those convictions for? 

Mr. BRYANT. A variety of terrorism-related offenses including 

material support for terrorism. 

Mr. CONYERS. Oh, yeah? Well, would it be offensive to the secrecy of the Department of Justice that the nature of those convictions be revealed to the Subcommittee that has jurisdiction over 

this subject? 

Mr. BRYANT. They’re a matter of public record. We’d be pleased 

to pull it together and make sure the Subcommittee has it. 

Mr. CONYERS. Right. But what about all the ones—weren’t there 

more people convicted for petty offenses and minor immigration 

violations and other things than there were for terrorist offenses, 

if there were any terrorist offense convictions? 

36

Mr. BRYANT. Respectfully, Mr. Conyers, I think that’s a false dichotomy. Immigration law is an essential tool in our effort against 

terrorism. 

Mr. CONYERS. I see. So Immigration procedures of any kind that 

result in convictions like not having a green card could be terrorist 

related, right? 

Mr. BRYANT. It could be if the individual was involved in terrorism. 

Mr. CONYERS. Which is why we took the Immigration and Naturalization Service and put it in Homeland Security, right? 

Mr. BRYANT. I don’t follow the question, sir. 

Mr. CONYERS. Well, it was pretty simple, a sentence with a subject and a verb and—I mean what’s the problem with what I asked 

you? What don’t you understand? 

Mr. BRYANT. The agency historically known as the INS is now 

part of the Department of Homeland Security. 

Mr. CONYERS. Yes. You understand that. Isn’t it true? 

Mr. BRYANT. That’s correct. 

Mr. CONYERS. Well, then what was so hard about that? Now, 

how many people have received letters since September 11, 2001, 

national security letters have been issued? 

Mr. BRYANT. I’m unaware of the number, Mr. Conyers. 

Mr. CONYERS. What about Mr. Harrington? You are the one that 

issues them. 

Mr. HARRINGTON. Yes, sir, and we do report to Congress routinely as far as—— Mr. CONYERS. Yeah. How many? 

Mr. HARRINGTON. I believe that number’s classified, sir. 

Mr. CONYERS. Classified? 

Mr. HARRINGTON. Just as the number of FISAs are classified, 

yes. 

Ms. WATERS. Put him under oath. 

Mr. CONYERS. Well, he’s already under oath. I mean when you 

testify you’re under oath here. 

Ms. WATERS. Make him raise his hand. 

Mr. CONYERS. No, that’s all right. 

You can’t tell us because that’s classified. Well, let me ask you, 

when you hold a trial on terrorism, is that information classified 

too? 

Mr. HARRINGTON. No, sir. 

Mr. CONYERS. Has anybody over there been thinking about 

classifying the trials where this kind of information is routinely 

sought and answered under oath in public, just like you are? 

Mr. COBLE. Mr. Conyers, if you will spend just a bit—Mr. Bryant, if you will answer that, and then there is a vote on, so we need 

to—if you want to respond to that, Mr. Bryant. 

Mr. CONYERS. What do you know about that, Mr. Harrington? 

Mr. COBLE. Oh, Mr. Harrington. 

Mr. HARRINGTON. Yes, sir. There’s—of course in a trial it’s open 

to the public and it is a public record. 

Mr. CONYERS. In other words, this Committee would have to go 

into a secret hearing to get the answer to my question from you. 

Mr. HARRINGTON. I believe so. 

Mr. CONYERS. Would you provide it then? 

37

Mr. HARRINGTON. Yes, sir. 

Mr. CONYERS. All right. Mr. Chairman, I would like to seek immediately, next week, a hearing in which I could get a civil response to this question. 

Mr. COBLE. Well, I cannot give you assurance on that right now, 

John. I will talk to you after we adjourn here. 

Mr. CONYERS. All right. 

Ms. JACKSON LEE. Will the gentleman yield for one moment, 

please? 

Mr. CONYERS. Yes. 

Ms. JACKSON LEE. Mr. Chairman, I would like for you to give the 

gentleman another opportunity to answer Mr. Conyers. He said 

that the pure number was classified information. Is he sure about 

that? Does he want to leave this Committee with that as a fact? 

Mr. HARRINGTON. I believe I am correct, that this is a classified 

number, and that we would be happy to make it available to Congress——

Mr. CONYERS. Okay, Mr. Harrington. Are there any numbers we 

can ask you about, the letters being sent that you could tell us 

about? I mean like if I ask you how many people work over there 

in your department, is that a classified number? 

Mr. HARRINGTON. Yes, it is. 

Mr. CONYERS. It is? 

Mr. HARRINGTON. Yes, sir. 

Mr. CONYERS. If I ask you who the head of the department was, 

would that be classified? 

Mr. HARRINGTON. No, it would not. 

Mr. CONYERS. Well, we are making progress. 

Mr. COBLE. The gentleman’s time has expired. I hate to cut you 

off, John, but we have to go vote. 

I thank the witnesses for your testimony. The Subcommittee very 

much appreciates your contribution. 

This concludes the legislative hearing on H.R. 3179, the Anti—— Ms. JACKSON LEE. Mr. Chairman, I have something to put in the 

record. 

Mr. COBLE. Let me finish, and then I will recognize you. 

The record will remain open for 2 weeks. 

The gentleman from Virginia. 

Mr. SCOTT. Two letters. 

Mr. COBLE. For the record, without objection. 

The lady from Texas? 

Ms. JACKSON LEE. Yes, I have, I would like to submit an article 

in USA Today, dated May 17, 2004, ‘‘The Ordeal of Chaplain Yee.’’

I’d like to submit that into the record. 

Mr. COBLE. Without objection. 

The Subcommittee stands adjourned, and thank you again, gentlemen, for your appearance. 

[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.] 

(39)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

LETTER CLARIFYING HEARING RESPONSES FROM THE HONORABLE DANIEL J. BRYANT


Bryant1A.eps
40


Bryant1B.eps
41

LETTER FROM LAURA W. MURPHY


Murphy1.eps
42


Murphy2.eps
43


Murphy3.eps
44


Murphy4.eps
45

LETTER FROM THE AMERICAN CIVIL LIBERTIES UNION (ACLU), ET AL.


ACLU1.eps
46


ACLU2.eps
47

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


Lee1.eps
48


Lee2.eps
49


Lee3.eps
50


Lee4.eps
51


Lee5.eps
52


Lee6.eps
53


Lee7.eps
54

LETTER FROM THE HONORABLE BOB BARR, INCLUDING THE CASE OF

MAR-JAC POULTRY, INC.


Barr1.eps
55


Barr2.eps
56


Barr3.eps
57


Barr4.eps
58


Barr5.eps
59


Barr6.eps
60


Barr7.eps
61


Barr8.eps
62


Barr9.eps
63


Barr10.eps
64


Barr11.eps
65


Barr12.eps
66


Barr13.eps
67


Barr14.eps
68


Barr15.eps
69


Barr16.eps
70


Barr17.eps
71


Barr18.eps
72


Barr19.eps
73


Barr20.eps
74


Barr21.eps
75


Barr22.eps
76


Barr23.eps
77


Barr24.eps
78


Barr25.eps
79


Barr26.eps
80


Barr27.eps
81

1 ‘‘Such (FISA) surveillance would be limited to a ‘foreign power’ and ‘an agent of a foreign 

power.’’’ Senate Report (Judiciary Committee) No. 95–604 (I and II), November 15, 22, 1977 [To 

accompany S. 1566], at 16. 

PREPARED STATEMENT OF KATE MARTIN

This Statement is being submitted on behalf of the Center for National Security 

Studies, a a civil liberties organization, which for 30 years has worked to ensure 

that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can 

be protected without undermining the fundamental rights of individuals guaranteed 

by the Bill of Rights. In our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by 

doing so, solutions to apparent conflicts can often be found without compromising 

either. 

The Center has worked to protect the Fourth Amendment rights of Americans to 

be free of unreasonable searches and seizures, especially when conducted in the 

name of national security for more than twenty years. For example, the Center, 

then affiliated with the American Civil Liberties Union, was asked to testify before 

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

when Congress amended the Act to include physical searches, Kate Martin, Director 

of the Center was again asked to testify about the civil liberties and constitutional 

implications of the legislation. Since September 11, 2001, the Center has been actively involved in evaluating the many changes to these authorities. 

SUMMARY. 

This Committee is currently considering H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003. The bill contains two amendments to the 

Foreign Intelligence Surveillance Act (‘‘FISA’’) 50 U.S.C. §§ 1801–1863, which 

amendments raise the most serious civil liberties concerns in the bill and which will 

be the focus of this Statement. Both amendments are of dubious constitutionality 

and would be counter-productive in the fight against terrorism. Both amendments 

must be analyzed in light of the USA Patriot Act’s substantial expansion of FISA 

authorities, in particular the Patriot Act’s elimination of the requirement that secret 

FISA surveillance be limited to circumstances where the government’s primary purpose is the gathering of foreign intelligence and not making a case against an individual. We commend this Committee for its commitment to vigorous oversight of the 

effect of those Patriot Act changes and urge that consideration of further expansions 

of FISA authority, such as are contained in HR 3179, await the Congress’ examination of those sunsetted provisions of the Patriot Act next year. 

A. LONE WOLF AMENDMENT (HR 3179 SEC. 4). 

The first such amendment would authorize FISA surveillance against non-US persons with no showing that they are acting on behalf of a foreign terrorist organization or government. This amendment tracks the first section of the leaked draft of 

the Justice Department’s Domestic Security Enhancement Act of 2003 (Patriot II), 

although that draft would extend the provision to citizens. The provision is unconstitutional and unnecessary. While this provision has been described as the 

‘‘Moussaoui fix,’’ that rationale has been discredited by the Joint Inquiry of the Intelligence Committees. Nor is the amendment needed to allow surveillance of ‘‘lone 

wolf terrorists.’’ As FBI officials have admitted, the government already has all the 

authority it needs to conduct surveillance of the individuals described as ‘‘lone wolf’’

terrorists. 

Eliminating the foreign power nexus will render FISA surveillance unconstitutional. The amendment is fundamentally inconsistent with the Constitution because 

it would authorize FISA surveillance against individuals with no showing that they 

are acting on behalf of a foreign terrorist organization or government. In doing so, 

the amendment would eliminate the constitutional requirement that the lesser 

standards and privacy protections authorized for FISA surveillance be limited to use 

against foreign powers and their agents.1 See In re Sealed Case No. 02–001, slip op. 

at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002). While FISA requires no showing of probable cause of crime, it is constitutional in part because 

it provides ‘‘another safeguard . . . that is, the requirement that there be probable 

82

2This holding was essential to the review court’s holding that ‘‘FISA as amended is constitutional because the surveillances it authorizes are reasonable.’’ In re Sealed Case No. 02–001, slip 

op. at 56. Even a court with the broadest view of the government’s surveillance power has found 

the requirement that the government show probable cause that a target is acting for a foreign 

power to be constitutionally based. 3 ‘‘However, personnel at FBI Headquarters . . . misunderstood the legal standard for obtaining an order under FISA.’’ Final Report, Inquiry of the Joint Intelligence Committees, Finding 

5f. 4Sens Leahy, Grassley and Specter, Interim Report on FBI Oversight in the 107th Congress 

by the Senate Judiciary Committee: FISA Implementation Failures, Feb. 2003 at 11 n. 4. 5 Consideration of S. 113, United States Senate, May 8, 2003.

6 ‘‘In private briefings, even FBI representatives have said that they do not need this change 

in the law in order to protect against terrorism. They are getting all the warrants they want 

under the current law.’’ Senate Report 108–40, at 12, Additional views by Senators Leahy and 

Feingold. See also exchange between FBI Deputy General Counsel Bowman and Senator 

Graham, Hearing of Senate Select Intelligence Committee, July 31, 2002. 7See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the 

Fourth Amendment to the government’s search of a KGB colonel, who came to the U.S. as a 

Soviet spy. 

cause to believe the target is acting ‘for or on behalf of a foreign power.’ ’’ 2 Indeed, 

adoption of the amendment could undermine criminal prosecutions of terrorists because the information obtained from a FISA surveillance under these procedures 

may well be ruled inadmissible. 

Not a ‘‘Moussaoui Fix’’ or otherwise necessary. This amendment has been described as necessary to provide a so-called ‘‘Moussaoui fix.’’ Zacarias Moussaoui was 

detained three weeks prior to September 11 on suspicions of terrorist activity, but 

FBI field agents were rebuffed by headquarters in their efforts to obtain a FISA 

warrant to search his computer. Initially, the FBI claimed that they were not able 

to obtain a warrant because of the requirement to demonstrate a link to a foreign 

power. However, the Joint Inquiry of the Intelligence Committees concluded that 

the failure to seek a warrant to search Moussaoui’s computer was the result of 

FBIHQ personnel misunderstanding the law.3 Since the problems that the FBI experienced during the FISA application process resulted from ‘‘misunderstanding’’ the 

law, there is no need for a legislative ‘‘Moussaoiu fix.’’ Current law does not require 

that an individual be connected to a recognized terrorist group, but only to at least 

one other individual engaged in planning terrorist activities in order to meet constitutional standards. Even if a legislative clarification of the ‘‘agent of a foreign 

power’’ requirement were deemed advisable, this amendment performs surgery with 

a butcher knife instead of a scalpel. 

As pointed out by Senators Leahy, Grassley and Specter, the Justice Department 

has not provided a single case, even in classified form, where the absence of this 

provision resulted in the FBI being unable to conduct necessary surveillance. As 

those Members said, ‘‘In short, DOJ sought more power but was either unwilling 

or unable to provide an example as to why.’’ 4

Lone Wolf Terrorists Can Be Investigated With Existing Criminal Authority. Lone 

wolf terrorists are a problem that can be handled by the criminal justice system. 

If investigators possess reliable information that an individual is preparing to commit an act of terrorism, they have all the authority they need to get a criminal surveillance warrant. There is no need to use FISA. As Senator Rockefeller has pointed 

out:

‘‘If we know for certain a person really has no foreign connections, if he or she 

is a true ‘lone wolf’—a foreign ‘Unabomber,’ for example—then it is a straightforward criminal investigation. There is no foreign intelligence to be gotten at 

all, and that person is not a valid target under FISA.’’ 5

Indeed, the FBI has admitted that that they do not need this change to get the warrants they need to protect against lone wolf attacks.6

This violation of Fourth Amendment standards could soon be made applicable to 

citizens. The Fourth Amendment’s protections apply to searches and seizures in the 

U.S. and protect those who are voluntarily here without regard to their citizenship.7

If the lesser standards for secret searches and surveillance embodied in this amendment were to be deemed constitutional by the Congress and the Executive, they 

would be deemed constitutional when applied to citizens. Indeed the Justice Department proposed applying the lone wolf amendment to citizens in the draft of Patriot 

II. 

Treating ‘‘Lone Wolfs’’ as National Security Threats is Counter-Productive. Finally, 

encouraging the use of valuable and already scarce investigative resources under 

FISA to target individuals acting alone increases the risk not only of increased surveillance based on religious or political activities, but also that once again, the FBI 

83

8See H.R.Rep. No. 106–981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct. 

18, 2000). 

will miss those truly dangerous individuals, who because they act in concert with 

other terrorists are thereby capable of inflicting grave damage to our national security, rather than ordinary, even though murderous crimes. 

Alternative amendment. In the Senate, Senators Feinstein and Rockefeller, introduced an amendment, that would, in our view, address the concerns that have been 

raised by the government, while leaving in place the agent of a foreign power requirement that is essential to the constitutionality of the statute. The FeinsteinRockefeller substitute states that when considering an application for surveillance 

of a non-US person, ‘‘the court may presume that a non-United States person who 

is knowingly engaged in sabotage or international terrorism, or activities that are 

in preparation therefor, is an agent of a foreign power under section 101(b)(2)(C).’’

This language would preserve the requirement that the FISA only applies to agents 

of a foreign power and provide the court with some discretion regarding the designation of individual terrorists as agents of a foreign power. 

B. SECTION 6: ALLOWING SECRET USE OF THE FRUITS OF SECRET SURVEILLANCE IN

IMMIGRATION PROCEEDINGS. 

The second amendment to FISA included in HR 3179 would allow the government 

to introduce in evidence or otherwise use the fruits of secret FISA surveillance in 

any immigration proceeding without telling the individual that he had been overheard or subjected to a secret search, in violation of basic due process requirements. 

The government already has this authority in cases of alleged ‘‘alien terrorists’’ per 

the 1996 Alien Terrorist Removal Proceedings provisions. This proposed amendment 

would extend those provisions—deemed constitutionally suspect by this Committee 

in the past—to all immigration proceedings against anyone including permanent 

residents and others lawfully here. 

Section 6 would eliminate the current requirement in FISA that the government 

notify individuals whenever it intends to use evidence obtained through FISA in immigration proceedings. It would allow the government to use the fruits of secret 

electronic surveillance, physical searches or pen registers to deport individuals without ever informing them that they have been subject to such surveillance or 

searches, without allowing any opportunity to challenge the legality of the surveillance, and most importantly deprive individuals of the right to challenge the veracity and validity of the information through cross-examination. The government already has the authority to do all this in the case of individuals alleged to be alien 

terrorists, under the 1996 amendments establishing the Alien Terrorist Removal 

Proceedings. 8 U.S.C. sec. 1531–1537. HR 3179 would extend this authority, of dubious constitutionality even when applied against suspected terrorists, to any individual, including legal permanent residents, without even the minimal safeguards 

provided in the 1996 law. 

In doing so, the amendment would violate fundamental due process rights. As the 

Judiciary Committee recognized in passing the Secret Evidence Repeal Act in 2000, 

the Supreme Court has ruled that ‘‘There are literally millions of aliens within the 

jurisdiction of the United States. The fifth amendment, as well as the 14th amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary or transitory is entitled to constitutional protection.’’ Matthews v. 

Diaz, 426 U.S. 67, 77 (1976).8

It is important to note that current law already provides only minimal procedural 

protections whenever the government intends to ‘‘enter into evidence, or otherwise 

use or disclose’’ information obtained from FISA electronic surveillance or physical 

searches in any court proceeding against a person whose conversations were overheard or whose house or office was searched pursuant to FISA, 50 U.S.C. sec. 

1806(c), 1825(d) and as noted above, these minimal protections are only available 

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

Indeed, rather than further eroding existing minimal due process protections, especially in light of the Patriot Act’s substantial expansion of FISA authorities to 

allow secret surveillance when the government’s primary purpose is not foreign intelligence gathering, but making a case against an individual, Congress should consider how to bring the use of FISA information in line with basic due process requirements in all proceedings, both civil and criminal. One way to do this would be 

to insure that FISA information is treated like all other kinds of classified information and make the provisions of the Classified Information Procedures Act applicaVerDate 0ct 09 2002 10:23 Oct 15, 2004 Jkt 089266 PO 00000 Frm 00087 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\051804\93715.000 HJUD1 PsN: 93715
84

9See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the 

Fourth Amendment to the government’s search of a KGB colonel, who came to the U.S. as a 

Soviet spy. 

ble to FISA information, instead of the much less protective provisions currently in 

FISA. 

But, allowing the government to introduce in evidence or otherwise use the fruits 

of FISA surveillance in any immigration proceedings without telling the individual 

that he had been overheard on electronic surveillance or subjected to a secret 

search, as proposed in HR 3179 would be a fundamental violation of both the Fourth 

Amendment and constitutional due process requirements. FISA wiretaps and physical searches are at the core of the Fourth Amendment’s protection against unreasonable searches and seizures and that protection applies to all persons found within the U.S.9 The law has never permitted the government to conduct secret wiretaps 

or searches of individuals and then secretly use the fruits of such secret surveillance 

and searches against him without even informing him that he has been overheard 

or searched. 

There is no need to exempt immigration proceedings from the current rules regarding the use of FISA information because those rules already protect against the 

disclosure of sensitive information, even in proceedings not involving alleged alien 

terrorists. Current FISA law requires the government to notify an individual that 

he has been targeted under FISA only when it seeks to use the information against 

him. The government is not required to disclose anything more than the existence 

of the FISA surveillance unless it either seeks to introduce FISA information into 

evidence or the information is required to be disclosed to the defendant under the 

Brady exculpatory evidence rule. Even then, of course, all the government provides 

to the defendant is a record of his own telephone conversations or a copy of his own 

papers. The government is not required to disclose and, it appears, has never disclosed the application for a FISA warrant to anyone. Indeed, information obtained 

under FISA is accorded much greater secrecy than any other kind of classified information is accorded under the Classified Information Procedures Act (or, in our view, 

than is consistent with constitutional due process requirements). 

It is especially important that the existing minimal protections are available when 

the government seeks to use FISA information to deport an individual. There are 

many fewer due process protections available in immigration proceedings than in 

criminal proceedings, even though immigration proceedings may result in substantial deprivations of liberty. Given the relaxed hearsay and due process requirements 

already existing in immigration proceedings, this amendment would enable the government to use FISA information against an individual with no check as to whether 

the information was illegally obtained and, even more significantly, absolutely no 

check as to the accuracy or reliability of the information itself.

85

ARTICLE SUBMITTED BY THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


Yee1.eps
86


Yee2.eps
87


Yee3.eps
88


Yee4.eps
89


Yee5.eps
90

SUBCOMMITTEE LETTER TO THOMAS J. HARRINGTON REQUESTING RESPONSES TO

POST-HEARING QUESTIONS


Coble1.eps
91

SUBCOMMITTEE LETTER TO THOMAS J. HARRINGTON REQUESTING RESPONSES TO

POST-HEARING QUESTIONS


Coble2.eps
92

1 Responses to these questions had not been received at the time of the printing of this hearing.

POST-HEARING QUESTIONS 1 FOR THE HONORABLE DANIEL J. BRYANT FROM THE

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY


DOJ1.eps
93


DOJ2.eps
94

2 Responses to these questions had not been received at the time of the printing of this hearing.

POST-HEARING QUESTIONS 2 FOR THE HONORABLE DANIEL J. BRYANT FROM THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

VIRGINIA


DOJ3.eps
95

3 Responses to these questions had not been received at the time of the printing of this hearing.

POST-HEARING QUESTIONS 3 FOR THE HONORABLE DANIEL J. BRYANT FROM THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MICHIGAN


DOJ4.eps
96


DOJ5.eps
97


DOJ6.eps
98


DOJ7.eps
99

Æ


DOJ8.eps