U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

65–076 PDF 2011

REAUTHORIZATION OF THE PATRIOT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MARCH 9, 2011 

Serial No. 112–14 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

DEBBIE WASSERMAN SCHULTZ, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 9, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Todd M. Hinnen, Acting Assistant Attorney General, National Security Division, Department of Justice 

Oral Testimony ..................................................................................................... 8 

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

Robert S. Litt, General Counsel, Office of the Director of National 

Intellilgence 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 18 

Nathan A. Sales, Assistant Professor of Law, George Mason University 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 26 

Julian Sanchez, Research Fellow, Cato Institute 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Report by the American Civil Liberties Union (ACLU) submitted by the 

Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 61 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 99 

Letter from Debra Burlingame, Co-Founder, and Timothy Killeen, Executive 

Director, Keep America Safe ............................................................................... 101 

Letter from J. Adler, National President, the Federal Law Enforcement Officers Association (FLEOA) .................................................................................... 102 

Letter from Konrad Motyka, President, the Federal Bureau of Investigation 

Agents Association ............................................................................................... 105 

(1) 

REAUTHORIZATION OF THE PATRIOT ACT 

WEDNESDAY, MARCH 9, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:30 p.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Smith, Gohmert, Lungren, Poe, Chaffetz, Griffin, Marino, Gowdy, Adams, Quayle, Scott, 

Conyers, Johnson, Chu, Wasserman Schultz, and Quigley. 

Staff present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sarah Allen, Counsel; Arthur Radford Baker, Counsel; 

Sam Ramer, Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby 

Vassar, Subcommittee Chief Counsel; Sam Sokol, Counsel; and 

Veronica Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

And welcome to today’s hearing on the reauthorization of the PATRIOT Act. I would like to especially welcome our witnesses and 

thank you for joining us today. 

Presently I am joined by the distinguished Ranking Member and 

Chairman emeritus of the Subcommittee, Bobby Scott of Virginia. 

There will be more Members that will be coming later on. 

I yield myself 5 minutes for an opening statement. 

Today’s hearing on the reauthorization of the PATRIOT Act will 

focus on three provisions set to expire May 27th: section 206, roving authority; section 215, business records; and the ‘‘lone wolf’’ 

definition. 

Last month, Congress approved a 90-day extension of these provisions to ensure their continued use by the intelligence community. The extension also affords this Committee the opportunity to 

review how these provisions are used and how to assist our national security investigations and to ensure that they are not being 

misused. The Committee plans to hold an additional hearing later 

this month on the permanent provisions of the PATRIOT Act. 

As the then Chairman of the House Judiciary Committee, I 

oversaw the enactment of the USA PATRIOT Act in response to 

the 9/11 terrorist attacks. Title 2 of the act addressed enhanced foreign intelligence and law enforcement surveillance authority. 14 of 

the 16 sections of that title were made permanent by the 2005 PATRIOT Act reauthorization. The roving wiretap and business 

2 

records provisions were extended to December 31st, 2009. Also set 

to expire on that date was section 6001 of the Intelligence Reform 

and Terrorist Prevention Act of 2004, which we call IRTPA, the 

lone wolf definition. Congress did not enact a reauthorization in 

2009. Instead the expiring provisions were extended three times, 

first for 60 days, then for a year, and now for 90 days, and it is 

time for Congress to reauthorize this law. 

Congress should make permanent the lone wolf definition. This 

provision closes a gap in FISA that if allowed to expire could permit an additional terrorist to slip through the cracks and carry out 

his plot undetected. It has nothing to do whatsoever with any type 

of surveillance on these people. That is in other parts of the act. 

When FISA was originally enacted in 1978, America was concerned largely with collecting intelligence from foreign nations such 

as the Soviet Union or terrorist groups like the FARC in Colombia. 

Therefore, the law authorized intelligence gathering to foreign powers and their agents. 

The intelligence landscape has changed dramatically in the last 

30 years. Today we are confronted with threats from individuals 

who may subscribe to certain beliefs but do not belong to a specific 

terrorist group. Without the lone wolf definition, our surveillance 

tools will be powerless against this growing threat to America’s security. 

Section 206 of the PATRIOT Act authorizes the use of roving or 

multi-point wiretaps for national security and intelligence investigation. This allows the Government to use a single wiretap order 

to cover any communications device that the target is using or 

about to use. Without roving wiretap authority, investigators are 

required to seek a new court order each time a terrorist or spy 

changes cell phones or computers. 

Section 215 of the act allows FISA Courts to issue orders granting the Government access to business records and foreign intelligence, international terrorism, and clandestine intelligence cases. 

The 2005 reauthorization expanded congressional oversight and 

added additional procedural requirements and judicial review. 

Since the PATRIOT Act was enacted, these provisions have been 

scrutinized by Congress and have been either unchallenged or 

found constitutional. The lone wolf definition has never been challenged. Section 206 roving authority has never been challenged. 

The criminal roving wiretap authority was upheld under the 

Fourth Amendment to the Constitution by the Ninth Circuit in 

1992. Section 215 business records was challenged, but after Congress made changes to that provision in the 2005 reauthorization, 

the lawsuit was withdrawn. Each of these provisions is integral to 

defending America against enemy nations, terrorist groups, and individual terrorists and must be kept intact. 

I wish to welcome our witnesses and thank you for joining us 

today. 

And now I would like to recognize for his opening statement the 

gentleman from Virginia, Mr. Scott, who is the Ranking Member 

of the Subcommittee. 

Mr. SCOTT. Thank you, Mr. Chairman. I thank you for holding 

this hearing on the reauthorization of the expiring provisions of the 

USA PATRIOT Act. We are here on a temporary 3-month extenVerDate Aug 31 2005 12:28 Apr 21, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\030911\65076.000 HJUD1 PsN: 65076
3 

sion. The House passed a much longer extension. I am pleased that 

it was shorter extension, but I remain opposed to the extension of 

these provisions without changes to them to better ensure the 

rights of innocent Americans are not trampled upon. 

Three sections scheduled to sunset are deeply troubling. Section 

215 of the PATRIOT Act authorizes the Government to secretly obtain any tangible thing so long as it provides, in an ex parte proceeding, a statement of facts showing that there is reasonable 

grounds to believe that the tangible things are relevant to a foreign 

intelligence, international terrorism, or espionage investigation. No 

showing of probable cause, no direct connection to a foreign power 

or agent is needed, and any tangible thing includes business 

records, library records, tax records, educational records, medical 

records, or anything else. 

Before the enactment of section 215, only specific types of records 

were subject to such orders and the Government had to show specific and articulable facts giving reason to believe that the person 

to whom the records pertain is a foreign power or an agent of a 

foreign power. While these extraordinary powers were authorized 

and defended under the rubric that they are necessary to protect 

us from patriotism, the secret dragnet style approach allows the 

Government to review personal records even if there is no specific 

and articulable facts giving reason to believe that the individual 

targeted had anything to do with terrorism. The justification of 

these extraordinary powers is to protect us from terrorism. Congress should either ensure that things collected with this power 

have a meaningful connection to at least suspected terrorism or the 

provision should expire. 

Section 206 provides for roving wiretaps, including a John Doe 

roving wiretap, which permit the Government to secretly tap 

phones it believes a non-U.S. person may use. The order may be 

against any phone, including a phone of a neighbor if the person 

has visited before and used the phone whether or not he is determined to be using the phone again or if the officials represent to 

a judge, on an ex parte basis, that the person is evasive in the use 

of phones. 

Section 6001, the so-called ‘‘lone wolf’’ provision, permits secret 

intelligence gathering of non-U.S. persons in the U.S. even if they 

are not affiliated with a foreign government or terrorist organization. We have traditionally limited this kind of Government power 

to situations that involve agents of foreign governments or foreign 

terrorist organizations. With the necessity for business people to 

operate in a global economy and the frequency with which American citizens interact with people from around the world, the risk 

that this provision poses for ordinary activities of such Americans 

to be subject to spying is unacceptable, especially since the Government testimony indicates that the lone wolf provision is rarely, if 

ever, used. And even if there was a case where there was good 

cause for the Government to keep tabs on such people, there is no 

reason to jeopardize the safeguards that protect the traditional 

rights and freedoms of Americans when we can pursue such persons under existing authorities which allow emergency warrants 

and just about any other Government action that is reasonably 

based on pursuing a suspect. 

4 

It is encouraging that there was significant bipartisan opposition 

to the extension of these PATRIOT Act provisions. It shows a 

healthy skepticism of unrestrained Government power to spy on 

people in the United States. We need to restore our traditional respect for the right of every individual to be secure from unchecked 

Government intrusion. I hope that we can arrive at ways of doing 

so in our review of these authorities. We did so before under your 

leadership, Mr. Chairman, when we arrived at a version of the PATRIOT Act when it was originally passed that every Member of the 

House Judiciary Committee voted for, and I am confident that we 

can again under your leadership do the same thing. 

Thank you and I yield back. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The Chair now recognizes the Chairman of the Committee, the 

gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

The September 11th attack—and this September 11th marks the 

10-year anniversary of the worst terrorist attack in U.S. history. 

America is fortunate not to have suffered another attack of such 

magnitude and devastation in the past decade. This does not mean 

that the terrorists have given up their plot to destroy America or 

that we should no longer be prepared for another large-scale attack. As we have seen in recent years, the absence of a major attack does not mean that America is secure. 

To avoid detection, terrorists have shifted their tactics away from 

complex, coordinated attacks by a group of terrorists to smaller, individualized plots by rogue terrorists. 

On Christmas Day 2009, a foreign terrorist from Nigeria attempted to detonate a bomb hidden under his clothes on a plane 

on the way to Detroit. 

Last spring, a radicalized American citizen from Pakistan tried 

to explode a car bomb in Times Square. 

Plots to attack both the Washington, D.C. Metro and New York 

subway systems have also been thwarted. 

And just 2 weeks ago, a 20-year-old student from Saudi Arabia 

was arrested in my home State of Texas for attempting to use 

weapons of mass destruction. Khalid Aldawasari entered the 

United States in 2008 on a student visa to complete English language training, but in reality, he came to the United States to 

carry out violent jihad on innocent Americans. Aldawasari had 

been planning his bombing plot for years, even seeking out a particular scholarship to attend school in the U.S. while carrying out 

this plot. According to prosecutors, Aldawasari obtained two of the 

three chemicals needed for a bomb over the last 3 months and had 

attempted to buy the third. He had also researched potential targets, including the Dallas residence of former President George W. 

Bush, several dams in Colorado and California, and the homes of 

three former military guards who served in Iraq. 

The PATRIOT Act was enacted to prevent both large-scale attacks and terrorist plots by individual terrorists acting alone like 

the one in Dallas. Unfortunately, the myths surrounding the PATRIOT Act often overshadow the truth, but this is not ‘‘Law and 

Order’’ or some criminal justice show painting the PATRIOT Act as 

a tool of ‘‘Big Brother’’ just for their ratings. This is the real world 

5 

where we must address the real threat from foreign terrorists. As 

we review these expiring provisions, Congress must set aside fiction and focus on the facts. 

The three expiring national security provisions that Congress 

will consider this year are both constitutional and common sense. 

For example, the roving wiretap provision allows intelligence officials, after receiving approval from a Federal court, to conduct surveillance on terrorist suspects regardless of how many communication devices they use. We know terrorists use many forms of communication to conceal their plots, including disposable cell phones. 

Roving wiretaps are nothing new. Domestic law enforcement 

agencies have had roving authority for criminal investigations 

since 1986. If we can use this authority to track down a drug lord, 

why shouldn’t we also use it to prevent a terrorist attack? 

The business records provision allows the FBI to access tangible 

items, including business records in foreign intelligence, international terrorism, and espionage cases. Again, this provision requires the approval of a Federal judge. That means the FBI must 

prove to a Federal judge that the documents are needed as part of 

a legitimate national security investigation. 

The third provision amends the legal definition of an agent of a 

foreign power to include a lone wolf provision. National security 

laws allow intelligence gathering on foreign governments, terrorist 

groups, and their agents. But what about a foreign terrorist who 

either acts alone or cannot be immediately tied to a terrorist organization? The lone wolf definition simply brings our national security laws into the 21st century to allow our intelligence officials to 

answer the modern day terrorist threat. 

We cannot fight terror in this century with the tools of the last 

century. Congress must reauthorize these important national security laws. We simply cannot afford to leave our intelligence community without the resources it needs to dismantle terrorist organizations, identify threats from both groups and individuals, and interrupt terrorist plots of all sizes. 

Mr. Chairman, let me say in conclusion that I personally appreciate all the work that you have done on the PATRIOT Act. You 

were the Chairman of this Committee when it first passed. You 

have conducted oversight of the PATRIOT Act in the past. You are 

continuing to do so today. And I hope the results of all of our efforts will be to reassure individuals that these three provisions 

need to be extended and that they are doing a lot to protect the 

lives of Americans today. 

I yield back. 

Mr. SENSENBRENNER. The Chair recognizes the most recent 

Chairman emeritus of the Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. I want to thank the most senior Chairman emeritus for recognizing me and to let you know that I do not know if 

you are, as our present Chairman, about to move the discussion of 

the PATRIOT Act from the Constitution Subcommittee to the 

Crime Subcommittee. That is your prerogative. And I noticed that 

is what the senior Chairman emeritus did when he was Chair. And 

here we are doing it again. 

6 

Now, it is my understanding that many Members in the Subcommittee opposed this 3-month extension. They wanted it longer. 

I am satisfied with 3 months and apparently so is the other body. 

So we are here today. And I guess no one else has to recount all 

the horror stories of terrorism, incidents of terrorists, people arrested for terrorism and not yet prosecuted. That has all been done. 

But I am not sure if that is the main issue that surrounds us today 

because the most basic questions raised to me are what intrusions 

on our freedom and privacy will we accept, how much will we accept in this fight against terrorism. I noticed that the Chairmen of 

the Subcommittee and the full Committee have failed to even comment on that, which I consider to be the crux of us coming together. It is commented on by one of the witnesses here from the 

Cato Institute. 

What we are trying to do here today is reach a balance between 

protection and our liberties. I just want to read you what came 

from a former Senator from Minnesota—Wisconsin: ‘‘Of course, 

there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason, if we lived in 

a country that allowed the Government to open your mail, eavesdrop on your conversations, intercept your email, if we lived in a 

country that allowed the Government to hold people in jail indefinitely based on what they write or think or based on mere suspicion that they are up to no good, then the Government would, no 

doubt, discover and arrest more terrorists. But that is not a country which we would want to live in and that would not be a country 

for which we could, in good conscience, ask our young people to 

fight and die for. In short, it would not be America.’’ And so it is 

that set of concerns that to me bring us here today. 

And for all of us, I keep remembering that the Chairman’s original PATRIOT bill was passed unanimously out of this Committee, 

and then not so mysteriously substituted in the Rules Committee 

for a bill that no one had ever seen before. And so it is against that 

backdrop that I join in welcoming all of the witnesses today for this 

discussion. 

Thank you. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

Without objection, Members’ opening statements will be made a 

part of the record. 

And also without objection, the Chair will be authorized to declare recesses during votes on the House floor. 

It is now my pleasure to introduce today’s witnesses. 

Todd Hinnen is the Acting Assistant Attorney General for National Security at the Department of Justice. Prior to assuming this 

position, Mr. Hinnen was the Deputy Assistant Attorney General 

for Law and Policy at the National Security Division of the Department of Justice. He also has previously served as chief counsel to 

then Senator Joseph Biden, Jr., and as a director in the National 

Security Council’s Combating Terrorism Directorate and as a trial 

attorney in the Department of Justice’s Computer Crime and Intellectual Property Section. 

7 

Mr. Hinnen clerked for Judge Richard Tallman on the Ninth Circuit Court of Appeals and he is a graduate of Amherst College and 

Harvard Law School. 

Robert Litt is the General Counsel in the Office of the Director 

of National Intelligence. Before joining ODNI, Mr. Litt was a partner with the law firm of Arnold & Porter, LLP. He served as a 

member of the governing body of the American Bar Association’s 

Criminal Justice Section and is a member of the advisory committee to the standing Committee on Law and National Security. 

From 1993 to 1999, Mr. Litt worked at the Department of Justice 

where he served as the Deputy Assistant Attorney General in the 

Criminal Division and then as the Principal Associate Deputy Attorney General. His duties at DOJ included FISA applications, covert action reviews, computer security, and other national security 

matters. 

He started his legal career as a clerk for Judge Edward Weinfeld 

of the Southern District of New York and Justice Potter Stewart 

of the United States Supreme Court. From 1978 to 1984, he was 

an assistant U.S. attorney for the Southern District of New York. 

He also spent 1 year as a special advisor to the Assistant Secretary 

of State for European and Canadian Affairs. 

He holds a B.A. from Harvard college and an M.A. and J.D. from 

Yale University. 

Nathan Sales is an Assistant Professor of Law at the George 

Mason University School of Law where he teaches national security 

and administrative law. Prior to coming to George Mason, he was 

a Deputy Assistant Secretary for Policy Development at the U.S. 

Department of Homeland Security. 

He has previously served as counsel and then senior counsel in 

the Office of Legal Policy at the U.S. Department of Justice. In 

2002, he received the Attorney General’s Award for exceptional 

service for his role in drafting the USA PATRIOT Act. 

He graduated from Duke Law School magna cum laude where he 

joined the Order of the Coif and was research editor of the Duke 

Law Journal. 

He clerked for the Honorable David B. Sentelle of the U.S. Court 

of appeals for the D.C. Circuit, and from 2003 to 2005, he practiced 

at the Washington, D.C. law firm of Wiley, Rein & Fielding. He 

was the John N. Olin Fellow at Georgetown University Law Center 

in 2005 and 2006. 

Julian Sanchez is a research fellow at the Cato Institute who 

studies the intersection of privacy, technology, and public policy. 

He has written extensively about surveillance and the intelligence 

community for publishers across the political spectrum, from National Review to Newsweek and The Nation. As a journalist, 

Sanchez has covered these same issues as Washington editor of the 

technology site, Ars Technica, a blogger for the Economist, and an 

editor for Reason magazine. He studied philosophy and political 

science at New York University. 

Without objection, the witnesses’ statements will appear in the 

record in their entirety. Each witness will be recognized for 5 minutes to summarize their written statement, and the Chair now recognizes Mr. Hinnen. 

8 

TESTIMONY OF TODD M. HINNEN, ACTING ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE 

Mr. HINNEN. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The Chair may withdraw his recognition of 

Mr. Hinnen, seeing if we have some votes on the floor. We have 

three votes on the floor. We will wait until the votes are over with 

and then I will recognize you for 5 minutes. 

The Committee is recessed. Would Members please come back 

here promptly following the last vote? 

[Recess.] 

Mr. SENSENBRENNER. The Subcommittee will be in order, and the 

Chair will re-recognize Mr. Hinnen for 5 minutes. 

Mr. HINNEN. Thank you, Mr. Chairman. 

Chairman Sensenbrenner, Ranking Member Scott, Ranking 

Member Conyers, and Members of the Subcommittee, thank you for 

inviting me to testify today concerning the three provisions of the 

Foreign Intelligence Surveillance Act currently scheduled to sunset 

in May: the roving wiretap provision, the lone wolf definition, and 

the business records provision. 

I will make four general observations about these provisions and 

then discussion each of them briefly. 

First, these provisions are constitutional. Two of them, the roving 

wiretap provision and the business records provision have close 

analogues in criminal law: Title III roving wiretaps, and grand jury 

subpoenas. The courts have upheld each of these criminal analogues as constitutional. The lone wolf definition is simply a specific application of FISA surveillance authority which the courts 

have also upheld as constitutional. 

Second, they are important to our ability to conduct effective national security investigations. Allowing them to expire even for a 

brief time would make America less safe from international terrorism and other foreign threats. 

Third, they are subject to robust protections for privacy and civil 

liberties that involve all three branches of Government. Each requires the Government to make certain showings to an independent court, the FISA Court. Each imposes strict rules governing 

how the Government handles information regarding United States 

persons. Each is subject to extensive executive branch oversight, 

and each is subject to congressional reporting requirements. 

Fourth, these authorities have been subject to extensive discussions between Congress and the executive branch, and Congress 

has already renewed them several times. 

My written testimony sets forth a detailed explanation of how 

each of them works. Let me summarize it briefly. 

First, the roving wiretap provision. Ordinarily when the Government demonstrates probable cause that a subject is an agent of a 

foreign power and is using a facility such as a telephone number, 

the FISA Court issues two orders. One order is to the Government 

authorizing the surveillance, and the second order is to the provider, the telephone company, directing it to assist the Government. When we demonstrate to the court that the subject may take 

steps to thwart surveillance, such as by switching telephone companies, the court can issue a roving order, directing any telephone 

9 

company to assist the Government. When the Government identifies the new phone number that the subject is using and initiates 

surveillance, it must notify the court within 10 days and provide 

the facts indicating that the subject is using that phone number. 

As courts have repeatedly held in the criminal context, a roving 

order is not a general warrant. The Government may use roving 

surveillance only against that specific agent of a foreign power and 

on a specific phone number that person is using. The Government 

obtains roving authority about 20 times a year on average, generally where the subject is a highly trained foreign intelligence officer or a terrorist with particularly sophisticated tradecraft. 

Second, the lone wolf definition permits surveillance when the 

Government demonstrates probable cause that a subject is engaged 

in international terrorism, even if the Government does not demonstrate a connection to a terrorist organization. The Government 

may not use this authority against a United States citizen or lawful permanent resident. Although we have not used this authority 

to date, it fills an important gap in our collection capabilities. It allows us to collect on an individual engaged in terrorist activity who 

is inspired by but not a member of a terrorist group. 

Third, the business records provision allows the Government to 

apply to the FISA Court for an order directing the production of 

tangible things that are relevant to an authorized national security 

investigation. This authority is analogous to grand jury subpoena 

authority in criminal cases. In fact, the Government can only obtain records that could be obtained by subpoena in criminal cases. 

But this authority imposes more demanding requirements on the 

Government than a criminal subpoena. The Government must 

demonstrate relevance and obtain an order from an independent 

court. This provision is used about 40 times per year on average. 

It has never been used to obtain library circulation records or the 

titles of books borrowed. 

In closing, Mr. Chairman, it is appropriate to discuss these authorities which are so important to our national security and to 

Americans’ privacy and civil liberties, and we appreciate the opportunity to do so. Congress based these provisions on well-established, time-tested authorities in the criminal context and has refined them since they were enacted. All three are on solid constitutional footing. All three are important to protect this country from 

international terrorism and other foreign threats, and all three are 

subject to robust protections for privacy and civil liberties. The Department urges Congress to renew them. 

I look forward to the Subcommittee’s questions. 

[The statement of Mr. Hinnen follows:] 

10 


Hinnen-1.eps
11 


Hinnen-2.eps
12 


Hinnen-3.eps
13 


Hinnen-4.eps
14 


Hinnen-5.eps
15 


Hinnen-6.eps
16 

Mr. SENSENBRENNER. Thank you, Mr. Hinnen. 

Mr. Litt? 

TESTIMONY OF ROBERT S. LITT, GENERAL COUNSEL, 

OFFICE OF THE DIRECTOR OF NATIONAL INTELLILGENCE 

Mr. LITT. Thank you, Mr. Chairman. Chairman Sensenbrenner, 

Ranking Member Scott, Ranking Member Conyers, Members of the 

Subcommittee, thank you for inviting me here to testify today 

about the three expiring provisions of the Foreign Intelligence Surveillance Act. 

Mr. Chairman, I particularly want to thank you for your leadership on PATRIOT Act issues since 2001 which have been so helpful 

for the intelligence community. 

I want to start by making clear that the three expiring provisions 

are tools that are critical to help us defend our national security 

and they must be reauthorized. At the same time, I want to say 

that I think the distinguished Ranking Member of the full Committee correctly identified the issue which is what is the proper 

balance to strike between the tools to protect national security and 

the protection of civil liberties. I think our position is—and I hope 

to be able to persuade you—that these tools in fact do that. 

I do want to begin by giving you a couple of unclassified examples of how these tools have been used. 

For roving taps, I can tell you that we are currently using one 

against a foreign agent who changes cellular phones frequently. 

Without roving surveillance, there would be a gap in collection each 

time this agent switched phones because of the time we would need 

to get a new court order. 

The business records provision is also important. For example, 

recently a business record order was used to obtain information 

that was essential in the investigation of Khalid Aldawasari, which 

Chairman Smith referred to earlier, who was subsequently arrested in Texas. 

In another case, hotel records that we obtained under a business 

records order showed that over a number of years a suspected spy 

had arranged lodging for other suspected intelligence officers. 

These records provided information about the subject that helped 

the FBI ultimately to get full FISA coverage. 

As you know, many uses of the authorities under FISA are classified and we cannot discuss them publicly. This has led to some 

myths and misconceptions about FISA and the PATRIOT Act, and 

I want to take a couple of minutes to dispel some of those. 

First, although the lone wolf definition has not been used, it is 

nonetheless an important tool to have in our toolbox in light of the 

constantly evolving terrorism threat that we face. Michael Leiter, 

the Director of the National Counterterrorism Center, has testified 

that the availability of sophisticated extremist propaganda on the 

Internet means that terrorist organizations can reach out and incite individual extremists to attack us even when those extremists 

may not actually be agents of the terrorist organization. This is the 

kind of situation that the lone wolf definition applies to, and I want 

to reiterate what Todd Hinnen just said, which is that this applies 

only to foreigners, not to U.S. citizens or lawful permanent residents. 

17 

Second, criminal law authorities are not always an adequate substitute for FISA authorities. In particular, criminal wiretaps under 

Title III have to be disclosed to the target which may make it impossible to protect critical intelligence sources and methods. And in 

some cases, for example, in many instances when we are tracking 

foreign spies, we may not have a criminal predicate to support a 

Title III wiretap. 

Third, despite what some claim, we cannot get a roving wiretap 

without identifying the target. The statute requires that we provide 

the identity, if known, or a description of the specific target of 

FISA electronic surveillance. 

Finally, it is critical that the public understand that these are 

not unchecked or unrestrained authorities. We recognize that effective oversight of the intelligence community is essential both because of the powers the intelligence community has and because 

those powers are often exercised in secret. And we welcome that 

oversight. There is, in fact, extensive and effective oversight of 

these provisions by all three branches of Government. The legal 

framework requires that we can’t predicate investigations on activity that is protected by the First Amendment, that information we 

collect under these authorities has to be minimized in accordance 

with procedures that are approved by the court, and intelligence 

agencies are governed by rules that limit the collection, retention, 

and dissemination of information about U.S. persons. 

Each of these authorities, as Todd said, requires prior approval 

by the FISA Court, and I can say from my experience in a year and 

a half on this job, that the FISA Court is not a rubber stamp but 

gives a searching review to each application that comes before it 

and often requires changes and modifications. In addition, FISA 

applications get extensive high-level review within the executive 

branch even before they are submitted to the court. Agents and analysts who work in this area get regular training in the requirements of the law, and use of these authorities is subject to oversight by inspectors general, by the National Security Division of 

the Department of Justice, and by my office, the Office of the Director of National Intelligence. 

And finally, the use of these authorities, including classified details that we can’t disclose publicly, is regularly reported to the appropriate committees of Congress in a variety of ways. So there is 

really an extensive oversight framework. 

And I just want to close by reiterating that, first, as the Attorney 

General and the DNI have said, we are prepared to consider appropriate additional protections for civil liberties that don’t compromise the operational utility of these provisions, but it is important that these provisions be reauthorized and reauthorized for as 

long a period as possible. 

Thank you. 

[The statement of Mr. Litt follows:] 

18 


Litt-1.eps
19 


Litt-2.eps
20 


Litt-3.eps
21 


Litt-4.eps
22 


Litt-5.eps
23 


Litt-6.eps
24 

Mr. SENSENBRENNER. Mr. Sales? 

TESTIMONY OF NATHAN A. SALES, ASSISTANT PROFESSOR 

OF LAW, GEORGE MASON UNIVERSITY 

Mr. SALES. Thank you, Mr. Chairman. Chairman Sensenbrenner, 

Ranking Member Scott, Ranking Member Conyers, thank you for 

your time. Members of the Subcommittee, thank you for your time. 

My name is Nathan Sales. I am a law professor at George Mason 

Law School. 

My testimony today is that the three provisions that are up for 

renewal, roving wiretaps, business records, and lone wolf, are actually quite modest. Generally speaking, these tools simply let 

counter-terrorism investigators use some of the same investigative 

methods that ordinary cops have been using for decades, tools in 

fact that the Federal courts repeatedly have upheld. Plus, the law 

contains elaborate safeguards. In several respects, these safeguards 

under the PATRIOT Act are even stronger than the laws that 

apply in the ordinary criminal context. 

Take, for instance, roving wiretaps. Sophisticated criminals like 

drug dealers and mobsters sometimes try to evade surveillance by 

using burner cell phones or swapping out their SIM cards. The result is a drawn-out game of cat and mouse. Investigators get a 

court order to tap a particular phone, only to find out that he already switched to an even newer one. So it is back to the courthouse for a fresh warrant. 

Now, in 1986, Congress solved this problem for criminal investigators by letting them use roving wiretaps, basically a wiretap— 

a court order that applies to particular people rather than to particular devices. Agents, thus, can monitor a cell phone—a suspect 

regardless of what cell phone he happens to be using without first 

heading back to court for yet another order. 

Now, roving wiretaps have been upheld by no fewer than three 

Federal appellate courts, the Ninth, the Fifth, and the Second Circuits. To my knowledge, no appellate court has disagreed. 

So what the PATRIOT Act did was allow the same sort of investigative technique in terrorism cases. The basic idea is to level the 

playing field. If a roving wiretap is good enough for Tony Soprano, 

it is good enough for Mohamed Atta. 

In addition, the law contains strict safeguards. A court order is 

necessary. FBI agents can’t unilaterally eavesdrop on every phone 

a person uses. They have to convince a judge that there is probable 

cause first. Agents also have to follow minimization procedures. 

That means they have to follow rules that limit their collection, retention, and sharing of information about innocent Americans, information that is inadvertently collected. 

Now, there may be cases where agents don’t yet know the precise 

name of a terrorist. Indeed, that’s one of the reasons why you investigate the terrorist. But even then, the law requires agents to 

provide the FISA Court with—and I am quoting now—a description 

of the specific target. They cannot just run a dragnet under the 

law. 

Second, let us focus on the business records provision. In criminal cases, grand juries routinely subpoena documents from entities 

like online retailers and banks. The PATRIOT Act lets investigaVerDate Aug 31 2005 12:28 Apr 21, 2011 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\030911\65076.000 HJUD1 PsN: 65076
25 

tors do the same sort of thing in national security cases, but only 

if they persuade the FISA Court that the documents they seek are 

relevant to an ongoing and authorized investigation. This provision 

isn’t aimed at libraries, though it conceivably might be applied to 

them, although as we have heard, it has not yet been so. Still, that 

is not unusual. Grand juries sometimes demand business records 

from libraries in ordinary criminal investigations. Indeed, the Iowa 

Supreme Court once upheld a library subpoena in a case involving 

cattle mutilation. If we can investigate cattle mutilators, hopefully 

we can investigate international terrorists using the same technique. 

In fact, the PATRIOT Act’s protections are even stronger than 

the protections that apply to grand jury rules. Federal prosecutors 

can issue grand jury subpoenas more or less on their own, but PATRIOT requires the FBI to get a court’s approval first. In addition, 

PATRIOT expressly bars investigators from investigating Americans based on their First Amendment protected activities. It also 

imposes special limits when investigators seek sensitive records 

such as medical records or library records. Grand jury rules offer 

no such guarantees. 

Finally, there is lone wolf, which wasn’t in the PATRIOT Act but 

which Congress adopted in 2004. Sometimes it is difficult to prove 

that a suspect is formally linked to a terrorist organization overseas. The FBI faced a similar problem just before 9/11. It was suspected that Zacarias Moussaoui was up to no good, but agents 

hadn’t yet connected him to any foreign terrorists. As a result, it 

was unclear whether they had legal authority under FISA to 

search his apartment or search his laptop. The 9/11 Commission 

would go on to speculate later that if agents had been able to investigate Moussaoui, they might have unraveled the entire 9/11 plot. 

There is another reason for lone wolf: the growing danger of 

what might be called ‘‘entrepreneurial terrorism.’’ Solitary actors 

who are inspired by al Qaeda are on the rise, and they are capable 

of causing just as much death and just as much destruction as 

those who are formally members of that group. 

PATRIOT fixes these problems. Now investigators can get a 

court order to monitor any target who is engaging in international 

terrorism. There is no need to make the additional showing that he 

is engaging in international terrorism on behalf of a foreign power. 

Again, PATRIOT provides robust protection for civil liberties, perhaps the most important of which is that investigators can’t start 

monitoring a lone wolf who is engaging in domestic terrorism. 

There is still a foreign nexus. Investigators can only investigate 

international terrorism. 

Thank you, Mr. Chairman. Thank you, Members of the Subcommittee. I would be happy to answer any questions. 

[The statement of Mr. Sales follows:] 

26 


Sales-1.eps
27 


Sales-2.eps
28 


Sales-3.eps
29 


Sales-4.eps
30 


Sales-5.eps
31 


Sales-6.eps
32 


Sales-7.eps
33 


Sales-8.eps
34 


Sales-9.eps
35 

Mr. SENSENBRENNER. Thank you, Mr. Sales. 

Mr. Sanchez? 


Sales-10.eps
36 

TESTIMONY OF JULIAN SANCHEZ, RESEARCH FELLOW, 

CATO INSTITUTE 

Mr. SANCHEZ. Thank you, Mr. Chairman, and thanks again to 

the Committee for soliciting Cato’s perspective on these important 

issues. 

I am drawing in my remarks today on a forthcoming Cato paper 

focusing on these issues, which I hope to be able to make available 

within the next few days. I just want to pull out a few important 

issues about each provision here. 

With respect to lone wolf, I think it is important to recall that 

prior to the passage of this provision, the architecture of FISA 

tracked the constitutionally salient distinction made by a unanimous Supreme Court in the Keith case between ordinary national 

security investigations and those involving foreign powers which 

present special challenges and obstacles to investigations. In the 

absence of those special needs, which may justify the extraordinary 

breadth and secrecy of FISA surveillance, I think the criminal authority that a bipartisan Senate report found would have been 

available and, indeed, was used on 9/11 to obtain records and the 

laptop of Zacarias Moussaoui should be the norm. It is just hard 

to see why that authority is justified when we are dealing with persons who don’t have access to the resources of a global terror network. 

With respect to roving wiretaps, I think it is important to emphasize that everyone agrees that roving authority should be available 

to intelligence investigators as it is in criminal cases, but that the 

same requirement of identifying a named target that the Ninth 

Circuit emphasized was crucial to allowing that criminal authority 

to meet the particularity requirements of the Fourth Amendment 

and limit the discretion of investigators so that, as the Ninth Circuit put it, there was virtually no possibility of error or abuse, be 

added on this side to match. 

Now, again, the roving surveillance constitutes about 22 of the 

FISA warrants issued every year, which is a tiny fraction of FISA 

surveillance. Most of those cases we have to assume do, in fact, involve a named target. So closing this loophole would affect a relatively tiny percentage of FISA warrants issued. 

I think it is also important to recognize that on the criminal side, 

there are important structural differences between the way surveillance is subject to scrutiny after the fact. The FISA Court may be 

informed about the nature of roving surveillance, but what we don’t 

have on the FISA side is the assumption that surveillance collection is for the purpose of criminal trial where the parties will learn 

that they have been targeted by surveillance, where defense counsel will have an opportunity to seek disclosure and have an incentive to impose that kind of distributed surveillance of the enormous 

volume of collection. Again, recall, we are talking about surveillance that takes in essentially hundreds of years’ worth of audio 

every year, millions of digital files. Without that kind of distributed 

scrutiny, there is much greater need for checks on the front end 

limiting the discretion of agents, especially in the context of online 

surveillance where I think, again, we are not in the situation at all 

where there is, as the Ninth Circuit put it, virtually no possibility 

of error or abuse. 

37 

Finally, with respect to section 215—and I want to suggest that 

215 orders and national security letters be grouped together. These 

are complementary orders, and so changes to one authority are 

likely to affect the scope of the other. The Inspector General found 

that it is the extraordinary breadth of national security letters that 

account for the relatively sparing use that has been made of section 

215. 

I would like to see greater use made of 215 insofar as that would 

replace essentially agency fiat with judicial scrutiny. I don’t need 

to recount for the Committee the widespread and serious abuse 

that the Inspector General has found in the case of national security letters. I do want to mention that former Senator Russ Feingold believes that 215 has been misused but was unable to specify 

in an unclassified setting what that might consist of. 

But I think it may actually be a mistake to focus too much on 

formal misuses of authorities that are already so broad and that 

after the PATRIOT Act permit records to be acquired that pertain 

to people who have no even suspected connection to the target of 

a terror investigation. This creates a situation where we have enormous and ever-growing databases consisting of billions of records 

about Americans who again are not under suspicion. These third 

party records are generally subject to less Fourth Amendment scrutiny which is why the probable cause standard here as a general 

rule doesn’t apply. But in the last decade, we have seen courts increasingly finding that certain categories of third party records like 

location information do, in fact, merit Fourth Amendment protection in a way that has previously been assumed not to obtain. And 

there are other First Amendment interests often implicated by, in 

particular, telecommunication records. And so I would suggest that 

the analogy between these criminal side authorities is not always 

appropriate. 

[The statement Mr. Sanchez follows:] 

38 


Sanchez-1.eps
39 


Sanchez-2.eps
40 


Sanchez-3.eps
41 


Sanchez-4.eps
42 


Sanchez-5.eps
43 


Sanchez-6.eps
44 

Mr. SENSENBRENNER. Thank you very much. 

The Chair will now recognize the Members alternatively by sides 

in the order in which they appear after Mr. Scott and I are able 

to question the witnesses. And I yield myself 5 minutes. 


Sanchez-7.eps
45 

Mr. Sanchez, you really haven’t complained very much about the 

section 215 orders and have taken off after the national security 

letters to a much greater extent. Are you aware that the national 

security letters were authorized in 1986 legislation sponsored by 

Senator Leahy? 

Mr. SANCHEZ. I am, of course. But I believe it is important—— 

Mr. SENSENBRENNER. No, no. Okay. You know that that was not 

a part of the original PATRIOT Act. 

Are you aware that there were civil liberties protections that 

were put into the national security letter statute at the time of the 

2006 reauthorization? 

Mr. SANCHEZ. Certainly. 

Mr. SENSENBRENNER. What is wrong with those protections? 

Mr. SANCHEZ. Well, I think the problem here is that as, for example, the recent WikiLeaks disclosures have made clear, when 

databases, however protected or classified they may be, are allowed 

to contain so many records about so many different people without 

the requirement of some sort of individualized suspicion, it takes 

only really one bad actor to enable enormous disclosure of—— 

Mr. SENSENBRENNER. But does that mean that the tools of section 215 and the national security letters should be completely 

thrown out the window because of one bad actor? 

Mr. SANCHEZ. No. What I would suggest, however—— 

Mr. SENSENBRENNER. Okay. Well, then when the reauthorization 

was done, section 215 was declared unconstitutional by a Federal 

court. I believe it was in Michigan. And after the Congress did the 

reauthorization that many of my friends opposed, the plaintiffs 

withdrew their lawsuit. Now, were the changes that caused the 

plaintiffs to withdraw their lawsuit inadequate in any respect, and 

if so, how? 

Mr. SANCHEZ. Well, I would suggest, again to return to what I 

alluded to—— 

Mr. SENSENBRENNER. Answer the question if they were inadequate in any respect. 

Mr. SANCHEZ. I believe that one the changes that was considered 

by not implemented ultimately but that was approved by the Senate unanimously creating a requirement that there be at least a 

one-removed nexus to a terror suspect would have narrowed that 

authority in a way that—— 

Mr. SENSENBRENNER. But section 215 is directed at people who 

hold business records, and the courts have already determined that 

they are not subject to the protections of the Fourth Amendment 

because the potential criminal defendant or terrorist, if you would, 

was not in possession of those records. And there is a pretty significant difference that the courts have recognized. 

Now, you know, again I am asking if the protections were inadequate. 

Mr. SANCHEZ. Well, let me suggest two differences. 

Mr. SENSENBRENNER. No. Just tell me how they were inadequate 

because there hasn’t been a ruling of unconstitutionality. 

Mr. SANCHEZ. Nor, of course, covert authorities and so—— 

Mr. SENSENBRENNER. You know, yes, they are, but in the amendments, we gave anybody who got a section 215 FISA Court order 

46 

the opportunity to go to court and to get it quashed or cancelled, 

and to my knowledge, there has been no court that has done that. 

Mr. SANCHEZ. Well, if you look at what the Inspector General has 

found about—— 

Mr. SENSENBRENNER. No. I am looking at what the courts have 

been saying, sir. You know, the Inspector General has got an opinion just as the Attorney General has an opinion. I don’t know that 

since the changes in 2006 were made there has been any finding 

by a court that there is unconstitutionality. 

Mr. SANCHEZ. One problem is that in the criminal context 

where—— 

Mr. SENSENBRENNER. But we are not talking about the criminal 

context. We are talking about FISA here. 

Mr. SANCHEZ. But I wanted to suggest a contrast in that—— 

Mr. SENSENBRENNER. No. There is no need for a contrast because 

we are talking about either extending a provision of FISA or letting 

a provision of FISA drop. 

Mr. SANCHEZ. The third option, though, would be to extend it 

suitably narrowed to compensate for the fact that third party 

record custodians, where the acquisition of records does not ultimately become public, lack the incentive that they have on the 

criminal side and we see frequently in challenges to subpoenas for 

records that—— 

Mr. SENSENBRENNER. Well, just because they don’t have the incentive doesn’t take away their right to go to court to get it 

quashed. 

Okay. Let me talk about roving wiretaps. You know, we have 

heard from the previous witnesses that if roving wiretaps are okay 

for the Sopranos, you know, why not for Mohamed Atta. Why not 

for Mohamed Atta? 

Mr. SANCHEZ. I do not oppose these roving wiretaps in intelligence investigations. 

Mr. SENSENBRENNER. Okay, thank you very much. 

My time has expired. 

The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Hinnen, on the lone wolf provision, it is my understanding 

that these cannot be used against U.S. persons. Is that right? 

Mr. HINNEN. That is correct. 

Mr. SCOTT. Are they limited to terrorism as opposed to routine 

foreign intelligence? 

Mr. HINNEN. Yes. The statutory definition requires that the individual be engaged in or preparing for international terrorism. 

Mr. SCOTT. And what do you need to represent to a court to get 

a lone wolf—— 

Mr. HINNEN. You need to demonstrate to the court probable 

cause that the individual is engaged in or preparing for international terrorism and probable cause that he is using or is about 

to use the telephone that you want to surveil. 

Mr. SCOTT. The information that you have to show that—would 

that not be sufficient to get a Title III normal criminal warrant? 

Mr. HINNEN. It might in some cases. 

Mr. SCOTT. How can you have that information and it not be sufficient? How could it not be sufficient? 

47 

Mr. HINNEN. It may in most cases be sufficient. I think that because the criminal statute requires proof of probable cause that a 

crime is being committed, whereas the FISA statute requires probable cause that the individual be engaged in or preparing to engage 

in international terrorism, there is a possibility that there might be 

some slight difference, but I will certainly grant the Congressman’s 

point—— 

Mr. SCOTT. International terrorism is a crime. 

Mr. HINNEN [continuing]. That they are very similar. 

Mr. SCOTT. International terrorism is a crime. Is that right? 

Mr. HINNEN. There are jurisdictional elements to criminal statutes as well, and we need to ensure that those are satisfied. 

Mr. SCOTT. On 215, you are entitled to get information relevant 

to foreign intelligence. Is that right? 

Mr. HINNEN. That is correct. 

Mr. SCOTT. Is that limited to terrorism? 

Mr. HINNEN. No, that is not limited to terrorism. That includes 

counter-intelligence as well and information regarding the national 

defense or foreign affairs. 

Mr. SCOTT. Foreign affairs, diplomacy. 

Mr. HINNEN. Correct. 

Mr. SCOTT. What was done before the USA PATRIOT Act in getting information? What do you get under the PATRIOT Act that 

you couldn’t get otherwise? 

Mr. HINNEN. Under these specific authorities? 

Mr. SCOTT. Right. 

Mr. HINNEN. I think these authorities provide an opportunity for 

the intelligence community to obtain in a secure way, while at the 

same time protecting classified information and sources and methods, records that are relevant to national security investigations. 

Mr. SCOTT. You couldn’t get that before USA PATRIOT Act? 

Mr. HINNEN. We could get it before the USA PATRIOT Act. Certainly the grand jury subpoena authority was available then. Of 

course, the—— 

Mr. SCOTT. What about just FISA? 

Mr. HINNEN. You know, I don’t know the answer to that question. I wasn’t practicing in this area before the PATRIOT Act. 

Mr. SCOTT. Mr. Litt, were you practicing then? 

Mr. LITT. I am going out on a limb here. I have a recollection 

that there may have been some authority prior to the PATRIOT 

Act that was expanded in the PATRIOT Act, but I am not certain 

of that. I wouldn’t want to be quoted on that. There certainly was 

NSL authority. 

Mr. SCOTT. But, Mr. Hinnen, what you get is information relevant to foreign intelligence. Do you need to show any probable 

cause of any crime or speculation or terrorism? 

Mr. HINNEN. You don’t for a business records order. As with the 

grand jury subpoena—— 

Mr. SCOTT. Do you have show that the records are connected to 

a foreign agent? 

Mr. HINNEN. Collected through a foreign agent? 

Mr. SCOTT. Connected to a foreign agent. 

Mr. HINNEN. You need to show that they are relevant to a national security investigation. 

48 

Mr. SCOTT. Which includes foreign intelligence, not just terrorism. 

Mr. HINNEN. Correct. 

Mr. SCOTT. When people hear of national security, they think terrorism, but you are talking just normal diplomacy kind of stuff. 

Mr. HINNEN. No. It includes spies and espionage and that sort 

of thing as well. 

Mr. SCOTT. Now, on the roving wiretap, how is the standard to 

get a roving wiretap different from the normal Title III warrant? 

Mr. HINNEN. The difference with respect to a roving wiretap is 

that the Government has to demonstrate, in addition to probable 

cause, that the individual is an agent of a foreign power and is 

using or is about to use a telephone number. The Government also 

has to demonstrate to the court that the individual may take steps 

to thwart the surveillance. 

Mr. SCOTT. Now, is the roving wiretap under this authority limited to terrorism as opposed to 215 which is any kind of spying? 

Mr. HINNEN. No. 

Mr. SCOTT. Is the roving wiretap limited to—— 

Mr. HINNEN. Excuse me. It too permits the collection of foreign 

intelligence information. 

Mr. SCOTT. Which—— 

Mr. HINNEN. Which is the broad definition that we have been 

discussing, Congressman. 

Mr. SCOTT. And the minimization. You said collection, dissemination, and retention. Does the minimization include collection? 

Mr. HINNEN. It does for surveillance, yes, Congressman. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you. 

Mr. Sanchez, you cited the Ninth Circuit which from my perspective is the most reversed, least likely to be correct circuit in the 

country. Can you cite any other authority for your concerns? 

Mr. SANCHEZ. As Mr. Sales mentioned, there are three Federal 

appellate courts that have examined roving wiretaps in the criminal context, and I think—back me up—that all three have stressed 

the additional requirement in the case of roving taps that a named 

target be identified as important to allowing those taps to meet the 

particularity standard. 

Mr. GOWDY. Would you agree with me that the United States can 

indict Fnu Lnu? 

Mr. SANCHEZ. Yes. 

Mr. GOWDY. Well, then why can’t they investigate Fnu Lnu? 

Mr. SANCHEZ. I am not opposed to investigation and certainly of 

persons who are reliably believed to be connected to terror groups. 

The issue is not whether the investigation should happen but what 

constraints should exist to narrow the investigation to ensure that 

the information pertaining to innocent people is not swept up especially given the relative lack of the kind of back-end constraints 

that exist in the criminal context. 

Mr. GOWDY. Well, if you don’t know the name of the person, if 

his first name is unknown and his last name is unknown, how are 

you going to investigate him under your recommendations? 

49 

Mr. SANCHEZ. Well, if his first name is unknown and the last 

name unknown, how are you sure you are investigating that person? 

Mr. GOWDY. There are lots of people in the criminal context that 

you know a crime was committed. You don’t have any idea what 

their first name or last name is. Trust me from 16 years of doing 

it. A name is sometimes the last piece of information that you get. 

Mr. SANCHEZ. And what can be done in that context is to target 

a facility. Again, both FISA and criminal warrants permit a facility 

where there is an evidentiary nexus connecting it to a crime or in 

this case an agent of a foreign power can be specified. The question 

is whether the agent in a case where the target is not known, 

where there isn’t that anchor, has discretion to choose new facilities not—— 

Mr. GOWDY. When you say the target is not known, there is a 

difference between not being known and not being identified. Correct? 

Mr. SANCHEZ. It borders on metaphysics, but yes. 

Mr. GOWDY. Well, it doesn’t border on metaphysics. It is a fact. 

You can not know the identity of someone and still know that that 

person exists. Correct? 

Mr. SANCHEZ. Certainly. 

Mr. GOWDY. So there is a difference between being identified and 

being known. 

Mr. SANCHEZ. And when a target is known by description, which 

will often be connected to the facility which is originally monitored, 

I think that anchor should limit the extent of the warrant until 

identification of information about the identity of that person can 

be obtained. 

Mr. GOWDY. You don’t have serious concerns about the roving 

wiretap. Correct? If I understood your testimony correctly. 

Mr. SANCHEZ. If it is narrowed to match the criminal authority, 

no. 

Mr. GOWDY. You are upset about national security letters, but 

that is not part of what we are doing. 

Mr. SANCHEZ. I was tying those with—— 

Mr. GOWDY. But that is not part of this reauthorization. 

Mr. SANCHEZ. That is true. 

Mr. GOWDY. So roving wiretaps, not that much of an issue with 

roving wiretaps. 

Lone wolf—— 

Mr. SANCHEZ. There is potential for roving—for these John Doe 

warrants, but I think that is, again, a very narrow set of cases. 

And so closing that loophole would—— 

Mr. GOWDY. We have Fnu Lnu indictments. That would even be 

worse than a Fnu Lnu warrant. Wouldn’t it? I mean, we indict unknown people. 

Mr. SANCHEZ. In the context of a criminal investigation where 

the point is, of course, to identify that person and to have trial in 

a public fashion. 

Mr. GOWDY. Business records. A Federal prosecutor can send a 

subpoena without going to any Article III judge and getting permission, without getting any permission from anyone, can do it on behalf of a grand jury anytime she or he wants to. Correct? 

50 

Mr. SANCHEZ. Yes. 

Mr. GOWDY. So you would agree that there is an additional layer 

of protection in these cases that doesn’t even exist in drug cases 

or child pornography cases or carjacking cases or bank robbery 

cases. 

Mr. SANCHEZ. But there is an absent layer of protection insofar 

as there is no independent grand jury in these cases and also insofar as the secrecy removes—— 

Mr. GOWDY. Wait a second. What do you mean there is an absence? You think an Article III judge who has a job for life is less 

independent than a grand jury? 

Mr. SANCHEZ. Well, there is a difference in terms of the nature 

of the scope of the investigation. Again, on the criminal side, we 

are talking about in most cases some kind of nexus to a crime that 

has been or is being committed. And then again—— 

Mr. GOWDY. But you would concede we cannot wait in these 

cases until a crime is committed. So that analogy falls. I mean, the 

goal is not to wait until a crime has been committed in these cases 

and then do a really good job prosecuting it. Correct? 

Mr. SANCHEZ. But to the extent that scope difference creates 

more discretion, additional protections I think are appropriate. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The junior Chairman emeritus of the Committee, the gentleman 

from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

Mr. Hinnen and Mr. Litt, I understand that the Judiciary Committee in the other body is considering a bill that would make some 

changes in some of this law that we are discussing, S. 290. Do any 

of you have any operational concerns about anything in this bill 

that you would like to bring to our attention this afternoon? 

Mr. HINNEN. Mr. Ranking Member, I am not sure exactly which 

bill S. 290 is. Who is the sponsoring Senator, please? 

Mr. CONYERS. Chairman Leahy. 

Mr. HINNEN. Congressman, Mr. Ranking Member, with the caveat that that bill is currently going through markup or at least 

was until very recently and we may not have reviewed the most 

recent set of changes, the Administration had reached a point 

where it was supporting a very similar bill to that at the end of 

the last Congress when these provisions were set to expire. So 

without knowing every jot and title that may have been changed 

in the recent markup, we are prepared to support a bill that is 

similar to the one that was considered at the close of the last Congress. 

Mr. CONYERS. Mr. Litt? 

Mr. LITT. Mr. Ranking Member, that bill—I think the provisions 

in there are examples of the kinds of provisions that I described 

in my statement as provisions that would provide enhanced protection for civil liberties without affecting operational utility. So, yes, 

that is our view on those. 

Mr. CONYERS. Thank you both. 

Mr. Sanchez, it has been a fairly difficult afternoon, hasn’t it? 

[Laughter.] 

Mr. SANCHEZ. I am having fun. 

Mr. CONYERS. Could I inquire if you are an attorney? 

51 

Mr. SANCHEZ. I am not. 

Mr. CONYERS. Well, that may account for some of the difficulty. 

What would you tell a Member of this Committee this afternoon 

who might be thinking about voting against this 3-year extension? 

Mr. SANCHEZ. Well, first of all, in terms of the operational impact, there is a grandfather clause. That means these powers would 

continue to be in effect for investigations already underway. So the 

immediate operational impact I think would likely be limited by 

that. 

I would suggest that certainly all three appear to—well, in one 

case, not used at all; in the other cases, used in a fairly limited 

way. 

But I would suggest that at least with respect to roving wiretaps 

in 215, what would be desirable is to sufficiently constrain them so 

that they are narrowed to minimize the collection of information 

about innocent Americans in a way to account, again, for the structural differences between intelligence and criminal investigations 

and that fixing these provisions so that they can be made permanent is actually preferable to allowing them to expire. 

Mr. CONYERS. Does anyone here want to comment on that suggestion? 

Mr. HINNEN. I would just say, Congressman, that I think the reference to a distinction in the constitutional architecture between a 

group and an individual—I actually, with due respect, disagree 

with the assertion that that is what Congress did in 1978 and that 

that is what the Keith case does. What those cases do and what 

the Fourth Amendment cases that focus on this do is distinguish 

between the Government’s interest in criminal investigation and 

the Government’s interest in protecting the national security. They 

don’t distinguish between—the distinction of constitutional significance is not one between an individual and a group. 

Mr. LITT. I think from the intelligence community’s point of view, 

we certainly share the hope that we can reach the stage where 

these authorities can be authorized on a permanent basis. From 

our point of view, while we encourage oversight, having to run up 

against repeated expirations is not something that we particularly 

enjoy doing. I guess at the generic level, I can share the sentiment 

that I hope we get to the stage where we all agree on what the appropriate way is that we can authorize these permanently. We may 

disagree as to what the details of that are. 

Mr. CONYERS. Professor? 

Mr. SALES. I think, if I may—I know we are very short on time. 

So I will be as brief as I can, which is hard for a professor to do. 

I think Congress has struck the right balance with the provisions 

as they exist. Since the PATRIOT Act was enacted, Congress has 

revisited these provisions time and time again, each time adding 

additional layers of oversight and additional safeguards. I think 

those additional mechanisms to protect privacy and civil liberties 

would justify a permanent extension of these provisions now without any additional tinkering. 

Thank you, sir. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The Vice Chair of the Subcommittee, the gentleman from Texas, 

Judge Gohmert? 

52 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I appreciate your all’s testimony. 

One of the things I got hit up—when we were talking about extending 206, 215 of the PATRIOT Act, was that under 206, apparently somebody had been talking about it on TV that that could 

allow the FBI to get a wiretap on an entire neighborhood because 

the person being pursued had used a neighbor’s phone before and 

therefore might be likely to use other people’s phones in the neighborhood. Has anybody here ever heard of an entire neighborhood 

being wiretapped under 206? 

Mr. HINNEN. No, Congressman, and I think that would be inconsistent with the terms of the statute which require the Government 

to demonstrate probable cause that the specific agent of a foreign 

power is using a specific telephone number. 

Mr. LITT. In addition to that, when you do get a roving wiretap 

order, every time the agents go up on a new telephone, they have 

to report that to the FISA Court within 10 days and they have to 

report the specific basis on which they believe that the particular 

facility was being used. And I would doubt that that would pass 

muster with the FISA Court if anybody tried that. 

Mr. GOHMERT. In my understanding with the roving wiretap, the 

goals was to go after cell phones that could be disposed of quickly 

and not give time to go after the new phone. Is that correct? 

Mr. HINNEN. And other similar kinds of tradecraft where individuals cycle through providers quickly in order to try and shake surveillance, yes. 

Mr. GOHMERT. Professor, do you have any comment on that? Do 

you think it is plausible, possible even to get a wiretap of an entire 

neighborhood under 206? 

Mr. SALES. No, sir. I think that would be inconsistent with the 

terms of FISA as it is written. As my colleagues have said, FISA 

is very clear about what is required in order to initiate surveillance. You must establish, in the case of 206, probable cause to believe that the target is engaging in international terrorism. I think 

it would be extraordinarily difficult to persuade the FISA Court 

that there is probable cause to believe that an entire neighborhood 

is engaging in international terrorism. 

In addition, it must be shown that there is probable cause to believe that the target is using a specific facility in question. If there 

is a terrorist using a phone, then we should be listening to it, but 

it is inconceivable to me that the FISA Court would approve dragnet surveillance like this. I think that is the most important part. 

It is the court that decides, not the FBI. 

Mr. GOHMERT. Well, Mr. Sanchez, you brought up NSL’s. I think 

most of us were quite alarmed when the IG came in with a report 

that they had been badly abused and they were not getting the supervision we had been assured that NSL’s would get. And you had 

FBI agents just doing fishing expeditions without proper supervision. 

If I understood you correctly, you seem to think that 215 could 

take care of the needs that are currently given to—or the power 

that is currently under the national security letters. Is there anybody else that you know of that agrees with that? If you just did 

away with national security letter power—— 

53 

Mr. SANCHEZ. I am not proposing doing away with the national 

security letter power. 

Mr. GOHMERT. Oh, you are not? What is your specific proposal? 

Mr. SANCHEZ. My suggestion is that if the national security letter 

authority were narrowed further, for example, as it previously did, 

to permit the acquisition of records that pertain to a suspected terrorist and in the case of communications records for basic subscriber information for persons believed to be in contact with a suspected terrorist, that narrower authority could allow the kind of 

initial investigation on the basis of relatively limited records that 

don’t sweep in people 2 and 3 degrees removed. And if that kind 

of greater breadth is necessary, 215 orders could be employed for 

those categories of records. 

Mr. GOHMERT. So you think national security letters do perform 

an important function. They just need to be narrowed. Is that correct? 

Mr. SANCHEZ. I think that is accurate, yes. 

Mr. GOHMERT. I see my time has expired and I yield back. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from Georgia, Mr. Johnson? 

Mr. JOHNSON. Thank you, Mr. Chairman, for holding this very 

important hearing. 

I have—well, before I go down that line, let me say that section 

215, the business records section, can be used against Americans 

who are alleged to be an agent of a foreign power. Is that correct? 

Mr. HINNEN. Yes, that is correct. 

Mr. JOHNSON. And you would just simply need specific and 

articulable facts giving reason to believe that an American may be 

assisting a foreign power or an agent of a foreign power, in other 

words, not probable cause but a level below probable cause. 

Mr. HINNEN. Certainly the relevant standard is a more lenient 

or a minimal standard as opposed to probable cause. 

What the business records provision actually allows us to do is 

to get records from a third party custodian, to go to a bank and 

get an individual’s bank records or that kind of thing. And so that 

is why the importance is demonstrating their relevance to a national security investigation, not necessarily anything specific 

about the individual because they don’t actually act against the individual directly. 

Mr. LITT. Let me here—just to be clear, in those FISA authorities 

which do depend upon a finding that somebody is an agent of a foreign power, that finding is based on probable cause by the court. 

Mr. JOHNSON. The finding that the person is an agent of a foreign power looks to me that it simply requires a showing of specific 

and articulable facts as opposed to probable cause. I am correct on 

that, am I not? 

Mr. HINNEN. That was the distinction, Congressman, I was trying to draw. I don’t think I articulated it very well. What the business records provision requires the Government to show is something with respect to the investigation itself rather than something—— 

Mr. JOHNSON. Yes. Well, I understand that part. That is probable 

cause, the fact that it may be related to a terrorism or a security 

investigation, national security. 

54 

But the person whose documents are being subpoenaed, if you 

will—that person can be an American and they can be established 

as an agent of a foreign power merely through an articulable, reasonable suspicion as opposed to probable cause. 

Now, I have serious concerns about the possible abuse and misuse of counter-terrorism technologies developed by Federal contractors under the authority of the PATRIOT Act and the Homeland 

Security Act. Are either one of you familiar with the recent Chamber leaks controversy? 

Mr. LITT. I am sorry. The recent what? 

Mr. JOHNSON. Chamber leaks, a situation where there was a 

group of—— 

Mr. LITT. The Chamber of Commerce? 

Mr. JOHNSON. Yes. 

Mr. LITT. I am familiar from reading it in the newspapers, yes. 

Mr. JOHNSON. So the technologies that were developed by these 

security contractors which could have been unleashed on American 

citizens for domestic illegitimate purposes, the mining of social network sites, the planting of false personas and things like that, false 

documentation—these are technologies that are depended upon by 

individuals who are executing their authority under the PATRIOT 

Act. Correct? 

Mr. LITT. Well, I don’t specifically know what technologies those 

people planned to use, but I do know—— 

Mr. JOHNSON. Let me ask you are you familiar with Palantir 

Technologies, Bar Code technologies, or HBGary Federal and 

whether or not the Department of Justice or the national security 

agency which you belong to, Mr. Litt, contracts with any of those 

firms for their software? 

Mr. LITT. I am familiar with the names of the companies. I don’t 

know whether there are any contracts between the intelligence 

community and any of those companies. 

Mr. JOHNSON. Well, I have asked for a congressional hearing to 

take place in Judiciary, and I look forward to hearing back from 

the Chairman of the full Committee as to whether or not there will 

be hearings held on this most important topic, which is directly related to our subject matter today. 

Thank you. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from California, Mr. Lungren? 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Sanchez, you talked about the Ninth Circuit. I am a little familiar with the Ninth Circuit. They were, during the time I had experience with them, the most reversed circuit in the entire United 

States. I think 1 year they had 19 out of 20 cases reversed; 1 year, 

21 out of 22, a number of them that my office brought before the 

Supreme Court. 

But I was interested in the language that you cited as exemplary 

for what we ought to be using. It really caught my attention because you quoted their language saying that they approved it in 

the criminal context because there is virtually no possibility of 

abuse or mistake. I guess my question is, should that be the standard that we use, virtually no possibility of mistake, before we are 

55 

allowed to have a roving wiretap in a case in which we are trying 

to stop an attempted terrorist attack? 

Mr. SANCHEZ. Well, I should say in the context—— 

Mr. LUNGREN. I mean, that is the language that you used. So I 

assume that you meant that that is the kind of standard we ought 

to have, virtually no possibility of mistake. 

Mr. SANCHEZ. I think in fact, again in particular when we are 

talking about online surveillance or surveillance of electronic communications, anytime a tap is roving, there is inherently some possibility of error, but that is dramatically magnified without the anchor of—— 

Mr. LUNGREN. So that would not be your standard. I appreciate 

that. 

Mr. Litt and Mr. Hinnen, sort of the general talk about roving 

wiretap—can you tell me how many times it has been utilized 

under section 206? 

Mr. HINNEN. I am afraid we don’t have that number with us 

today. As I mentioned in my testimony, we obtain the authorization about 20 times a year. The set of circumstances doesn’t always 

eventuate such that we need to use the authority despite the fact 

that we have gotten it. So it would be something less than 20 times 

a year. 

Mr. LUNGREN. There would be some people that would believe 

perhaps, if they heard some of the commentary today, that my 

goodness, if we don’t have the same restrictions that you have in 

a criminal case, this must give rise to your ability to have a wideranging, exploratory search with no specificity. As I read the statute, it doesn’t allow that. Could you explain exactly what you have 

to do in order to obtain the authority for a roving wiretap in a section 206 case? 

Mr. HINNEN. Sure. Thank you, Congressman. 

The Government has to make three important showings in that 

case. It has to make the two showings that are required for regular 

FISA surveillance in any case: probable cause to believe the individual is an agent of a foreign power and probable cause that the 

individual will use the specific phone number—— 

Mr. LUNGREN. The individual. It is an individual even though 

you may not know the individual’s name. 

Mr. HINNEN. That is correct. I thought Congressman Gowdy did 

an excellent job of demonstrating the difference between being able 

to identify someone and being able—— 

Mr. LUNGREN. But I want to make sure that as you understand 

the statute, it requires you to have some specificity with respect to 

an individual who is the target of your inquiry. 

Mr. HINNEN. That is correct, Congressman. Specificity both with 

respect to a specific individual and with respect to a specific phone 

number. 

Mr. LUNGREN. And if in fact in the process of using the roving 

wiretap, you move it to another instrumentality, do you not have 

to then inform the court of that? 

Mr. HINNEN. We do. We have to inform the court of the facts that 

lead us to believe that the target for whom we have already shown 

probable cause that he was an agent of a foreign power is using 

a specific phone number at that new provider. 

56 

Mr. LUNGREN. So there is a continuing oversight by the court in 

that context? 

Mr. HINNEN. That is correct. 

Mr. LUNGREN. And obviously in a criminal case and in a case 

such as this, when you allowed to have a roving wiretap, I assume 

you collect conversations with people who are not targets. 

Mr. HINNEN. That is certainly correct that when the Government 

conducts surveillance, not every conversation relates to the conduct 

being—— 

Mr. LUNGREN. And the Government has done this for years and 

years in the criminal context. I presume that you handle it in this 

context in a similar manner, that is, you are required to minimize 

those conversations of people who are not targets. Correct? 

Mr. HINNEN. Although the minimization process works slightly 

differently, yes, there is a strict minimization requirement in the 

FISA statute. 

Mr. LUNGREN. Would you explain for the record what that minimization process is? 

Mr. HINNEN. In a criminal context, real-time minimization is required. In other words, an agent literally listens to the phone call, 

and if it appears to be a call to mom about picking up milk on the 

way home, the call is dropped. Because Congress recognized that 

spies and terrorists don’t always operate that way, there may be 

language issues, there may be issues of talking in code, there may 

be tradecraft issues, the FISA statute does not require real-time 

minimization. It requires after-the-fact minimization. 

Mr. LUNGREN. But minimization nonetheless. 

Mr. HINNEN. Minimization nonetheless. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from California, Ms. Chu? 

Ms. CHU. I was interested in a couple of anecdotes from the Inspector General report, the first case where the FBI was collecting 

information about a certain telephone line. During this time the 

phone company assigned the number to a different person but 

failed to inform the FBI of this fact for several weeks, and as a result, the FBI collected information about an innocent person who 

was not connected to the investigation. 

And then a second anecdote where the FBI learned that a source 

who had provided significant information about the target changed 

his mind and no longer believed that the target was involved with 

a particular terrorist group, but the change was not reported to the 

court until about a year later. Hence, all that information was collected. 

Well, let me ask about these roving wiretaps, Mr. Hinnen or Mr. 

Litt. The criminal law also permits roving wiretaps, as it should, 

but it also includes a critical protection that section 206 of the PATRIOT Act does not. It requires the Government to specifically 

identify the target if it is not going to identify a device and rove 

with an individual. There have been legislative fixes proposed for 

almost 10 years to put this common sense protection into FISA. Do 

you oppose this proposal or do you support this proposal? Please 

explain what your position is on this. 

Mr. LITT. I must say I think that proposal is entirely unnecessary. As Mr. Hinnen explained before, the FISA statute already reVerDate Aug 31 2005 12:28 Apr 21, 2011 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\030911\65076.000 HJUD1 PsN: 65076
57 

quires that we either identify the person by name or give a sufficient description of him so that we know who it is. 

I must say I spent a number of years at the beginning of my career as an assistant U.S. attorney, and I encountered situations 

where we would wiretap somebody and the target of the wiretap 

would be, you know, John Doe, aka, Chico. All we knew was a nickname, but we knew enough to know who it was so that when we 

were listening to the phone, as Mr. Hinnen said, we could turn it 

off if we didn’t have our target on the line. 

It is the same principle here. We may not know the person’s 

name and we certainly may not know that we know his true name, 

but we can’t get a FISA order unless we know enough to convince 

the court that we know who the person is and that that person is 

an agent of a foreign power. And that requires particularity. 

Ms. CHU. Well, another protection in criminal wiretaps is that 

the Government must ascertain that the subject is actually using 

the device before it begins recording, thereby greatly reducing the 

number of innocent people that are inadvertently recorded by the 

Government. As you can see here in the anecdote that I just 

named, the suspected person wasn’t even using that particular 

phone. 

Do you oppose putting this protection into FISA, and if so, why? 

Mr. HINNEN. Congresswoman, that protection is in FISA for surveillance. The Government must show, in addition to probable 

cause that the targeted individual is an agent of a foreign power, 

probable cause that the individual is using or is about to use the 

phone. I suspect—and I am not familiar with that particular passage of the Inspector General’s report, but I expect that that was 

a mistake. I won’t sit here and tell you that mistakes never occur 

in this area of human endeavor, just like they occur in all others. 

But the FISA statute does require the Government to demonstrate 

probable cause that the individual is using or about to use the specific number that the Government wants to conduct surveillance 

on. 

Ms. CHU. Mr. Sanchez, how do you respond to this? 

Mr. SANCHEZ. I think what is crucial to keep in mind when talking about the equivalence between two powers is the larger framework in which they are embedded. So as Mr. Hinnen already discussed, collection in the first instance is much broader, is weighted 

toward, as the FISA Court has said, the Government’s need to acquire foreign intelligence, and that even when it is minimized, 

often that doesn’t entail the destruction of information. So there 

have been a number of cases where FISA recordings that were 

nominally minimized were when the Government was faced with 

the Brady obligation to provide exculpatory information, they were 

actually able to ultimately retrieve many, many times more hours 

of recording than had been not minimized. 

So in particular, in the context of where you are talking about 

roving across facilities where I think the inherent possibility of 

using an identifier like Chico creates a lot more slippage, a lot 

more potential for error, the need to compensate on the front end 

means that the protections on the discretion of agents need to be 

at least as strong as they are on the criminal side where, again, 

58 

there is going to be a lot more back-end scrutiny in a distributed 

fashion if not by the court itself. 

Mr. SENSENBRENNER. The time of the gentlewoman has expired. 

The gentleman from Pennsylvania, Mr. Marino? 

Mr. MARINO. Thank you, Mr. Chairman. 

Gentlemen, I think you have been asked a question to a certain 

extent, but before I ask you to answer my question, am I correct 

there are two attorneys and two non-attorneys? Or there are three 

attorneys and one non-attorney. Got it. All right. 

Just for the interest of brevity, I would like to start at the left 

end, my left, of the table. Could you please succinctly describe the 

difference between a Title III search warrant and a FISA warrant? 

I think that is critical at this point because as a U.S. attorney for 

6 years and a district attorney for 12 years, to some extent I had 

more latitude as a district attorney in acquiring a Title III warrant 

than I did a FISA warrant. 

Mr. HINNEN. Yes, Congressman. The principal differences between a Title III warrant and a FISA order are that in the first 

case the Government needs to demonstrate that the individual target is an agent of a foreign power, not an individual committing a 

crime but must show probable cause in both cases. 

Second, Congress decided in 1978 that it would be harmful to foreign intelligence investigations if the strict notice requirements in 

Title III also existed in the criminal context. You would essentially 

in every case in which you conducted surveillance against a spy or 

a terrorist have to notify him within a certain amount of time after 

that surveillance had occurred. 

And then the last is one that we have already discussed here 

today as well which is in the technical manner in which the minimization is applied to the information collected. 

Mr. MARINO. Attorney Litt, please. Can you follow up on that? 

Mr. LITT. I agree with that. 

Mr. MARINO. Good. 

Professor? 

Mr. SALES. Thank you, Congressman. 

I agree with that and one additional and important difference between the Title III context and the FISA context is the internal approval mechanism for a wiretap order. In the Title III context—let 

me talk about the FISA context first. 

The FISA context requires incredibly high-level sign-off from the 

highest levels within the Justice Department. The FBI Director is 

involved. The Deputy Attorney General is personally involved. The 

Attorney General is personally involved. That is much more rigorous internal executive branch scrutiny than you have for a Title 

III wiretap which I suspect may explain your own experience of the 

relative ease of obtaining a Title III versus a FISA. 

Mr. MARINO. And it hinges on the credibility of the United States 

attorney and the FBI agent or whatever agent requesting that. 

Okay. 

Mr. MARINO. Sir? 

Mr. SANCHEZ. I think they have covered it fairly well, but I 

would stress again the distinction between minimization in real 

time and minimization after the fact as again weighted toward 

broad acquisition of most of the information flowing through a faVerDate Aug 31 2005 12:28 Apr 21, 2011 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\030911\65076.000 HJUD1 PsN: 65076
59 

cility unless it could not be foreign intelligence information which 

almost anything could. So again, just the idea that there is much 

broader initial collection. 

Mr. MARINO. Broader initial collection where? 

Mr. SANCHEZ. That is to say as opposed to the case where information is recorded only when there is some nexus to the predicate 

offense, there is generally recording of all communications. 

Mr. MARINO. You know, with all due respect you are throwing 

out first-year law school criminal law terms, ‘‘predicate offense,’’ 

‘‘nexus,’’ you know, the whole 9 yards, something that any one of 

us can get off the Internet. But you are not getting specifics. Do 

you understand, sir, with all due respect, the delineation between 

the two and what one has to go through for the FISA order compared to the Title III? 

Mr. SANCHEZ. I do. I am referring only to, again, the question of 

when minimization occurs, which everyone else here has, I think, 

already alluded to. 

Mr. MARINO. Thank you. 

I yield my time. 

Mr. SENSENBRENNER. The gentleman from Arkansas, Mr. Griffin? 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

I want to follow up with some questions for you, Mr. Sanchez. 

I was reading in your written statement when you were talking 

about—and these pages are not numbered. You have a section here 

where you are talking about the transparency that normally surrounds the acquisition of documents via grand jury subpoena. 

Mr. SANCHEZ. Yes. 

Mr. GRIFFIN. And you indicate that it is impossible to overstate 

the significance of the transparency that normally surrounds the 

acquisition of documents by those means, those means being via 

the grand jury subpoena. Could you talk a little bit about what 

that transparency is? 

Mr. SANCHEZ. Well, insofar as normally on the criminal side that 

those processes do not involve gag orders, as 215 orders and national security letters normally do, the incentives I believe are different for companies served with those orders. They are not always 

incentivized to stand up for the privacy rights of their customers, 

the people whose records they are in custody of. But we see frequently booksellers or companies like Google moving to quash subpoenas specifically citing the ground that they fear that their reputation would be damaged by the disclosure of the fact that they 

were turning over sensitive records without making any kind of 

move to limit the scope of the subpoenas. 

By contrast, what we have seen, again, in at least the national 

security letter and 215 cases, is that often when there have been 

identified misuses, they have typically occurred with the enthusiastic collaboration of the record custodians, often violating the 

rules because of overproduction. 

Mr. GRIFFIN. I am limited on time here. 

So I guess in my experience, I haven’t seen a lot of transparency, 

not that it is warranted. The whole nature of a grand jury process 

is secrecy. I am not sure where you are going with your transparency argument. But the grand jury issues the subpoena in seVerDate Aug 31 2005 12:28 Apr 21, 2011 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\030911\65076.000 HJUD1 PsN: 65076
60 

crecy. It is issued and complied with in secrecy. The documents are 

obtained and brought to the grand jury. So I am not exactly sure 

what that argument is that you are making there. 

But I also want to go over here. You talk about the PATRIOT 

Act’s roving wiretap provision includes no parallel requirement 

that an individual target be named. We just discussed that. We 

were given the example of at least identifying the individual even 

if we don’t know the name. 

But then you go on and you say, quote, this is disturbingly close 

to the sort of general warrant the Founders were so concerned to 

prohibit when they crafted our Bill of Rights. A little hyperbole 

there maybe. 

Mr. Litt, would you comment on that? 

And this gets me to the broader question, and this is what I have 

heard a lot back home. If you would each—I know I am running 

out of time—just briefly comment on the constitutionality of the 

three provisions that we just voted to extend. Do you any of you 

have constitutionality concerns? And if this was asked previously, 

I apologize. 

Why do we not just start on the end and go down? 

Mr. HINNEN. No, Congressman. 

Mr. GRIFFIN. Mr. Litt? 

Mr. LITT. No. No, I don’t. I think the only two issues that have 

been raised—with respect to the lone wolf provision, I think there 

has been concern expressed that this may be beyond the national 

security powers as set out in the Keith case. And I think that when 

you have a situation where you are talking about non-U.S. persons 

who are engaged in international terrorism and a collection which 

is certified to be for the purpose of collecting foreign intelligence, 

I don’t think that is a serious constitutional concern. 

And similarly, for the reasons we previously discussed, I think 

that the roving wiretap adequately meets the particularity requirement of the Fourth Amendment. 

Mr. GRIFFIN. Mr. Sales? 

Mr. SALES. Thank you, Congressman. 

I agree with that as well. 

I think we are pretty far away from the days of King George III. 

FISA, as amended by the PATRIOT Act, doesn’t allow the sort of 

general warrant dragnets that our founders justifiably worried 

about 200 years ago. That is not the situation that FISA authorizes. In all cases, FISA, as amended by the PATRIOT Act, requires 

probable cause to believe that the target is an agent of a foreign 

power, i.e., somebody who is a spy or a terrorist. That seems like 

it meets the particularity requirement pretty precisely to me. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. I would like to thank all of our witnesses 

today for their testimony. I think it has been very enlightening and 

elucidating. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask the witnesses to respond as promptly as they can so that their answers may be made part of the 

record. 

61 

The gentleman from Georgia? 

Mr. JOHNSON. Thank you, Mr. Chairman. 

I would ask unanimous consent to introduce into the hearing 

record a report by the American Civil Liberties Union titled ‘‘Reclaiming Patriotism.’’ 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 


65076A-1.eps
62 


65076A-2.eps
63 


65076A-3.eps
64 


65076A-4.eps
65 


65076A-5.eps
66 


65076A-6.eps
67 


65076A-7.eps
68 


65076A-8.eps
69 


65076A-9.eps
70 


65076A-10.eps
71 


65076A-11.eps
72 


65076A-12.eps
73 


65076A-13.eps
74 


65076A-14.eps
75 


65076A-15.eps
76 


65076A-16.eps
77 


65076A-17.eps
78 


65076A-18.eps
79 


65076A-19.eps
80 


65076A-20.eps
81 


65076A-21.eps
82 


65076A-22.eps
83 


65076A-23.eps
84 


65076A-24.eps
85 


65076A-25.eps
86 


65076A-26.eps
87 


65076A-27.eps
88 


65076A-28.eps
89 


65076A-29.eps
90 


65076A-30.eps
91 


65076A-31.eps
92 


65076A-32.eps
93 


65076A-33.eps
94 


65076A-34.eps
95 


65076A-35.eps
96 


65076A-36.eps
97 


65076A-37.eps
98 

Mr. SENSENBRENNER. Also without objection, all Members will 

have 5 legislative days to submit any additional materials for inclusion in the record, and without objection, the hearing is adjourned. 

[Whereupon, at 3:54 p.m., the Subcommittee was adjourned.] 


65076A-38.eps
(99) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security 

Mr. Chairman, on October 26, 2001, in a time of fear and uncertainty that followed the terrorist attacks of September 11, 2001, President George W. Bush signed 

the Uniting and Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act of 2001, commonly referred to as the PATRIOT Act, into law. 

The PATRIOT Act is one of the most controversial laws to date. It was more than 

300 pages long and was passed a little over a month after the September 11th attacks. 

I am not down-playing the significance of the September 11th attacks; it was the 

worst terrorist attack in American history. 

While the threat of terrorism is real, and law enforcement must have the right 

tools to protect Americans, any counterterrorism measures must have a solid Constitutional footing and respect the privacy and civil liberties of the American people. 

The framers of the Constitution recognized the inherent danger of giving the government unbridled authority to look into our private lives and put checks and balances in place to curb government abuses. 

As we started off the 112th Session, my colleagues on the other side of the aisle 

demonstrated their commitment to the Constitution by reading it on the House 

floor. 

Surely, they are familiar with the Fourth Amendment which states ‘‘[t]he 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.’’ 

The provisions of the PATRIOT Act that will sunset on May 27, 2011 are disconcerting and expand the government’s authority to meddle in our lives with little 

or no evidence of illegal conduct. 

Section 215 of the PATRIOT Act allows the government to seize ‘‘any tangible 

thing,’’ from an American who has not been suspected of terrorism, including library 

records and diaries, relevant to a terrorism investigation, even if there was no showing that the ‘‘thing’’ pertains to suspected terrorists or terrorist activities. 

Section 206 of the PATRIOT Act, commonly referred to as the ‘‘roving wiretap’’ 

provision, is less controversial. Roving wiretaps are commonly used by law enforcement and it is reasonable to make it available to intelligence officers. Under the 

Foreign Intelligence Surveillance Act (‘‘FISA’’), ‘‘John Doe’’ wiretaps that do not 

specify the person’s identity are allowed. This standard could be tightened to decrease the likelihood that the wrong person will be targeted. 

Finally, Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 

2004 (‘‘IRTPA’’), also known as the ‘‘lone wolf’’ provision, permits secret service intelligence surveillance of non-U.S. persons suspected of being involved in terrorist activities even if they are not connected to any overseas terrorist group. Because the 

‘‘lone wolf’’ provision operates in secret, it could be subject to government abuses. 

To date, this provision has never been used. 

There is bipartisan consensus, evidenced by the 26 Republican Members who 

voted against reauthorization of the expiring provisions of the PATRIOT Act on February 17th, that they need improvement to preserve the rights of the American people. 

If Congress reauthorizes these provisions again with no changes, Americans merely visiting a website, mentioning a matter under investigation on social networks, 

100 

or checking out a ‘‘controversial’’ book from a library is enough not only to invade 

the privacy of law-abiding Americans, but to also do so without any of them knowing that the Feds are watching. 

One of the most difficult tasks for Congress is balancing the nation’s need for security against Americans’ rights to privacy, but this is a duty that should not be 

ignored. 

I look forward to hearing from the witnesses about how we can achieve this goal. 

Thank you, Mr. Chairman, and I yield back the balance of my time. 

f 

101 

Letter from Debra Burlingame, Co-Founder, and Timothy Killeen, 

Executive Director, Keep America Safe 

f 


65076B.eps
102 

Letter from J. Adler, National President, 

the Federal Law Enforcement Officers Association (FLEOA) 


65076C-1.eps
103 


65076C-2.eps
104 

f 


65076C-3.eps
105 

Letter from Konrad Motyka, President, 

the Federal Bureau of Investigation Agents Association 


65076D-1.eps
106 


65076D-2.eps
107 

Æ 


65076D-3.eps