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USA PATRIOT ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 22, 2009 

Serial No. 111–35 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 
(III) 

C O N T E N T S 

SEPTEMBER 22, 2009 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

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

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 2 

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

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 3 

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

of Texas, and Ranking Member, Committee on the Judiciary ......................... 5 

WITNESSES 

Mr. Todd M. Hinnen, Deputy Assistant Attorney General, National Security 

Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Ms. Suzanne E. Spaulding, former Staff Director, House Permanent Select 

Committee on Intelligence 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 31 

The Honorable Thomas B. Evans, Jr., a former Representative in Congress 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

Mr. Kenneth L. Wainstein, former Assistant Attorney General, National Security Division, Department of Justice 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 56 

Mr. Michael German, Policy Counsel, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 64 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 113 

(1) 

USA PATRIOT ACT 

TUESDAY, SEPTEMBER 22, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:15 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Johnson, Sensenbrenner, Rooney, King, Gohmert, and Smith. 

Staff Present: David Lachmann, Majority Subcommittee Chief of 

Staff; Stephanie Pell, Detailee (DOJ); Caroline Lynch, Minority 

Counsel; and Turner Letter, Staff for Ranking Member Sensenbrenner. 

Mr. NADLER. The hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. We will 

begin with—I will recognize myself for an opening statement. 

Today’s hearing gives the Members of the Committee the opportunity to review the USA PATRIOT Act, three provisions of which 

are scheduled to expire later this year. These three provisions— 

dealing with roving wiretap authority; expansion of definition of an 

agent of a foreign power to include so-called lone wolfs; and section 

215, which allows the government to obtain business records using 

an order from the Foreign Intelligence Surveillance, or FISA, 

Court—have aroused a great deal of controversy and concern. 

While some have argued that each of these authorities remain 

necessary tools in the fight against terrorism and that they must 

be extended without any modifications, others have counseled careful review and modification. Some have even urged that we allow 

some or all of these authorities to sunset. 

Additionally, I believe that we should not miss the opportunity 

to review the act in its entirety: to examine how it is working, 

where it has been successful, and where it may need improvement. 

For example, I have introduced for the last few years the National Security Letters Reform Act, which would make some vital 

improvements to the current law in order better to protect civil liberties while ensuring that NSLs remain a useful tool in national 

security investigations. And section 215 must be amended to conform to the changes we seek to make to the NSL provisions. 
2 

I have long believed that civil liberties and national security 

need not be in conflict, and I hope to work with my colleagues to 

strike that balance in a responsible and effective manner. 

We have some outstanding witnesses today with a great deal of 

experience and knowledge in this area. I am especially pleased that 

the Administration has sent a witness to assist the Committee in 

its work and to explain the Administration’s views. 

I would note that Mr. Hinnen’s testimony states at the very outset, and I think it merits repeating, that the Administration is, 

quote, ‘‘ready and willing to work with Members on any specific 

proposals we may have to craft legislation that both provides effective investigative authorities and protects privacy and civil liberties,’’ close quote. 

Whatever disagreements we may have on any particular provision or approach, I want to note that this attitude is a refreshing 

break with recent practice. We take the Administration at its word, 

and I, for one, intend to hold it to that. I look forward to working 

with the Administration and with my colleagues to craft legislation 

that protects our national security and our fundamental values. 

I look forward to the testimony, and I thank our witnesses for 

being here today. 

I yield back. And I now recognize the distinguished Ranking 

Member of the Subcommittee for 5 minutes for an opening statement. 

Mr. SENSENBRENNER. Thank you, Mr. Chairman. 

Two weeks ago, this country honored the 3,000 innocent people 

killed in the 9/11 terrorist attacks. In 100 days, the tools to prevent 

another horrific attack on America will expire. While I appreciate 

the Chairman holding this hearing today, it is long overdue. Congress must reauthorize the expiring provisions of the PATRIOT Act 

before December 31st of this year, and the clock is ticking. 

In 2001, the USA PATRIOT Act was passed with wide bipartisan 

support. And in this Committee, I would remind the Members and 

everybody else that we spent a month considering it. We had two 

hearings, and we had a markup. 

In 2005, I again spearheaded the effort to reauthorize the PATRIOT Act. Recognizing the significance of the act to America’s 

counterterrorism operations and the need for thorough oversight, 

this Committee held 9 Subcommittee hearings, 3 days of full Committee hearings, and completed its markup of the reauthorization 

all before the August recess—hardly a procedural rush job. 

I am deeply concerned that we are weeks away from adjourning 

this legislative session and we are now only beginning the process 

of reviewing the act. 

During a Senate confirmation hearing in January, Attorney General Holder said he wanted to examine the expiring provisions of 

the PATRIOT Act, talk to investigators and lawyers and get a 

sense of what has worked and what needs to be changed. In May, 

General Holder appeared before this Committee, and I asked him 

about the Department’s position on reauthorizing the act. Again he 

said he needed to examine how the expiring provisions had been 

used and to gather more empirical information. He assured me 

that the Department would express its views with sufficient time 

to reauthorize the act. 
3 

Just last week, the Obama administration finally made public its 

views on the three expiring provisions. I am dismayed as to why 

it took 9 months to assess just three measures, but I commend the 

Administration for recognizing the value of these important national security tools and rightly encouraging Congress to reauthorize each of them. 

The Administration has also promised to reject any changes to 

these or other PATRIOT Act provisions that would undermine their 

effectiveness. 

Of particular importance to me is the lone wolf provision, which 

closes a gap in the Foreign Intelligence Surveillance Act, that, if allowed to expire, could permit an individual terrorist to slip through 

the cracks and endanger thousands of innocent lives. 

When FISA was originally enacted in the 1970’s, terrorists were 

believed to be members of an identified group. This is not the case 

today. Many modern-day terrorists may subscribe to a movement 

or certain beliefs, but they don’t belong to or identify themselves 

with a specific terrorist group. Allowing the lone wolf provision to 

expire could impede our ability to gather intelligence about perhaps 

the most dangerous terrorists operating today. 

Section 206 of the PATRIOT Act authorizes the use of roving 

wiretaps for national security and intelligence investigations. The 

roving wiretap allows the government to use a single wiretap order 

to cover any communications device that the target uses or may 

use. Without roving wiretap authority, investigators would be 

forced to seek a new court order each time they need to change the 

location, phone, or computer that needs to be monitored. Director 

Mueller testified before the Committee in May that this provision 

has been used over 140 times and is exceptionally useful for facilitating FBI investigations. 

Section 215 of the act allows the FBI to apply to the FISA Court 

to issue orders granting the government access to any tangible 

items in foreign intelligence, international terrorism, or clandestine 

intelligence cases. The PATRIOT Improvement and Reauthorization Act of 2005 significantly expanded the safeguards against potential abuse of section 215 authority, including additional congressional oversight, procedural protections, application requirements, 

and judicial review. According to Director Mueller, this provision 

has been used over 230 times. 

The terrorist threat did not end on September 11, 2001. Just last 

week, Federal authorities disrupted a potential al-Qaeda bombing 

plot that stretched from New York City to Denver and beyond. It 

is time for this Committee to act. We must not allow these critical 

counterintelligence tools to expire. 

And I look forward to hearing from today’s witnesses and yield 

back the balance of my time. 

Mr. NADLER. Thank you. 

I must say, I wish I was as confident as the gentleman from Wisconsin that this session has only weeks to go. 

I now recognize the distinguished Chairman of the full Committee, Mr. Conyers, for an opening statement. 

Mr. CONYERS. Thank you, Chairman Nadler. 
4 

And I wanted to thank Jim Sensenbrenner for his recapitulation 

of those days in the Judiciary Committee, where so much happened. 

I also am pleased to see Tom Evans, our former colleague from 

Delaware, back on the Hill. 

Now, the PATRIOT Act is nearly 8 years old. After many hearings and multiple inspector general reports of the use and abuse 

of this law, and after much work by scholars in the field, we have 

learned that, since this law was rushed through Congress in the 

weeks after the 9/11 attack—we have to recall this with some specificity. 

The hearings that then-Chairman Sensenbrenner referred to 

were leading up to a bill that was sent to Rules Committee that 

never got out of Rules Committee. And that bill that the Chairman 

and me, the Ranking Member, worked on so carefully was unanimously reported out of the House Judiciary Committee—record 

vote. And then the bill went to the Rules Committee. And thenChairman Dreier, under Lord knows whose instructions, substituted that bill for another bill that we in Judiciary had never 

seen. 

And so we come here today now to consider what we do with 

those parts that are expiring. And so I wanted to make a couple 

ideas, give you a couple ideas about what might have happened if 

the bill that we debated and voted out—and Chairman Nadler was 

there; Ranking Member Lamar Smith was there. 

And the bill that we voted out required that targets of so-called 

roving wiretaps be identified in a FISA Court order to prevent the 

John Doe roving wiretaps that some experts and many commentators consider abusive. That was our bill—bipartisan, 100 percent. 

Another feature of that bill required extensive and robust oversight of the executive branch’s use of surveillance powers, which 

might have headed off the 2004 crisis at the Department of Justice 

caused by then-President Bush’s warrantless domestic surveillance 

program. 

Also in the bill was a requirement for extensive reporting and 

certification requirements, and created clear avenues for people affected by PATRIOT Act violations to claim redress, which may 

have eliminated, or certainly simplified, the extensive litigation 

about the PATRIOT abuses that continue to this day. 

And, finally, the current Administration has recommended reviewing these provisions that are expiring, and they have supported their simple extension. I disagree. And I want to hear some 

more detail about these, especially the infamous lone wolf statute, 

which has never been used and which there is some question as to 

whether it is necessary at all. 

Now, the Administration has stated that the protection of privacy 

and civil liberties is of deep and abiding concern. And they are willing to work on legislation that provides effective investigative authorities the power they need but, at the same time, protects the 

rights and civil liberties and privacy of the people that are under 

investigation. And so I think it is critical that every Member of this 

Committee has accepted this invitation to work with the Administration. 
5 

So now is the time to consider improving the PATRIOT Act, not 

to simply extend the three expiring provisions, which is a point of 

view that is no less valid than any other. But, please, Judiciary 

Committee, let’s consider what we have done, let’s consider what 

was done to us, and let’s consider where we go from here. 

And I thank you for your time, Chairman Nadler. 

Mr. NADLER. I thank the Chairman. 

I now recognize for an opening statement the distinguished 

Ranking Member of the full Committee, the gentleman from Texas, 

Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

America is fortunate not to have experienced a terrorist attack 

since 2001, but we must not be lulled into a false sense of security. 

The threat from terrorists and others who wish to kill Americans 

remains high. 

In the 8 years since the attacks of September 11, 2001, al-Qaeda 

and other terrorist organizations have continued their war against 

innocent civilians worldwide. In 2004, 191 people were killed in the 

Madrid train bombings. In 2005, 52 innocent civilians were killed 

when suicide bombers attacked the London subway. And last year, 

164 people were killed in Mumbai by a Pakistan-based terrorist organization. 

Counterterrorism tools helped British and American authorities 

foil the 2006 plot to attack as many as 10 airplanes flying from 

Great Britain to the U.S. Two weeks ago, three of the plotters were 

convicted of planning to blow up passenger planes using liquid explosives. According to British prosecutors, if the terrorists had been 

successful, they would have killed thousands of innocent passengers. 

In 2007, Federal authorities thwarted two terrorist attempts on 

U.S. soil: a plot to kill U.S. soldiers at the Fort Dix Army base and 

a plot to bomb JFK International Airport by planting explosives 

around fuel tanks and a fuel pipeline. Again, surveillance and investigative techniques saved lives. 

Many of these plots would not have been thwarted, the terrorists 

would not have been convicted, and thousands of lives would not 

have been saved without the PATRIOT Act. The PATRIOT Act 

gives intelligence officials the ability to investigate terrorists and 

prevent attacks. We cannot afford to let these life-saving provisions 

expire. 

Last March, I introduced the Safe and Secure America Act of 

2009 to extend for 10 years sections 206 and 215 of the U.S. PATRIOT Act and section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, which were scheduled to sunset on 

December 31st. 

For years the PATRIOT Act has been subject to misinformation, 

rumors, and innuendos about how intelligence officials can use its 

provisions. As Congress once again considers these provisions, we 

must ensure that the debate is about facts, not fiction. The expiring 

provisions we are considering today are designed to be used only 

by intelligence officials investigating terrorists and spies in cases 

involving national security. 

Despite allegations that the PATRIOT Act is unconstitutional, 

these provisions have been upheld in court and are similar to those 
6 

used in criminal investigations. The PATRIOT Act simply applies 

the same provisions to intelligence gathering and national security 

investigations. 

The director of the FBI, Robert Mueller, in testimony before the 

House and Senate Judiciary Committees earlier this year, urged 

Congress to renew what he called ‘‘exceptional intelligence-gathering tools.’’ The Obama administration decided last week that it 

agrees with Director Mueller and finally called for reauthorization 

of the three expiring PATRIOT Act provisions. 

America is safe today not because terrorists and spies have given 

up trying to destroy us and our freedoms. Just this past week, 

three individuals with links to al-Qaeda were arrested in connection with a plot to set off bombs in New York City. America is safe 

today because the men and women of the intelligence community 

use the PATRIOT Act to protect us. 

The threat to America from terrorists, spies, and enemy countries will not sunset at the end of this year, and neither should 

America’s anti-terrorism laws. The PATRIOT Act works exceedingly well. If the PATRIOT Act expires or is weakened, American 

lives will be put at risk. 

Thank you, Mr. Chairman. I will yield back. 

Mr. NADLER. Thank you. 

[Disturbance in the hearing room.] 

Mr. NADLER. If you insist on talking, you will be escorted from 

the room. Sit down, please. 

Escort him from the room, please. Do we have a Sergeant at 

Arms here? 

[Disturbance in the hearing room.] 

Mr. NADLER. In the interest of proceeding to our witnesses and 

mindful of our busy schedules, I ask that other Members submit 

their statements for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

We will now turn to our first panel of witnesses. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order of their seniority on the Subcommittee, alternating between majority and minority, provided that the Member 

is present when his or her turn arrives. Members who are not 

present when their turns begin will be recognized after the other 

Members have had the opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

Our first panel consists of one witness. Todd Hinnen is the Deputy Assistant Attorney General for law and policy in the Department of Justice’s National Security Division. Prior to rejoining the 

Justice Department, Mr. Hinnen was the chief counsel to then-Senator Joseph Biden, now Vice President, of course. 

Mr. Hinnen served from 2005 to 2007 as the director for combatting terrorism at the National Security Council, where his responsibilities included coordinating and directing the United States 

Government’s response to terrorist finance and terrorist use of the 

Internet. 
7 

Prior to serving on the NSC, Mr. Hinnen was a prosecutor in the 

Department of Justice’s computer crimes section and a clerk for the 

Honorable Richard Tallman, United States Court of Appeals for the 

Ninth Circuit. 

Mr. Hinnen is a graduate of Amherst College and Harvard Law 

School. 

Welcome. Your written statement in its entirety will be made 

part of the record. I would ask you to summarize your testimony 

in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow, and then red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hand 

to take the oath. 

[Witness sworn.] 

Mr. NADLER. Let the record reflect that the witness answered in 

the affirmative. 

We will now hear your statement, sir. 

Mr. HINNEN. Thank you. 

[Disturbance in the hearing room.] 

Mr. NADLER. The gentleman will be removed. 

The witness will proceed. 

TESTIMONY OF TODD M. HINNEN, DEPUTY ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. HINNEN. Thank you. 

Chairman Nadler, Ranking Member Sensenbrenner, full Committee Chairman Conyers, full Committee Chairman Smith, and 

Members of the House Judiciary Committee’s Subcommittee on 

Constitution, Civil Rights, and Civil Liberties, thank you for inviting me to speak to you today on behalf of the Justice Department 

about the three intelligence authorities scheduled to expire this December. 

My written testimony sets forth the affirmative case for renewal 

for each of these three important authorities. Mindful of the Subcommittee’s time and of the importance of discussion, my remarks 

today will touch briefly on the importance of each authority. 

At the outset, it is important to recognize that these authorities 

exist as part of a broader statutory scheme, authorized by Congress 

and overseen by the FISA Court, that supports foreign intelligence 

collection and thereby protects national security. 

The lone wolf provision allows the government to conduct surveillance pursuant to a FISA Court order on a non-U.S. person if the 

government demonstrates probable cause that the individual is engaged in international terrorism activities or preparation therefor. 

Although this provision has never been used, it is essential to the 

government’s ability to thwart an international terrorist plotting to 

attack the United States who has no established connection to a 

recognized terrorist organization, either because he has broken ties 

with such an organization or because he has been recruited and 

trained via information posted to the Internet. 
8 

Analysis suggests that, as the international coalition dedicated to 

combatting terrorism puts increasing pressure on terrorist groups 

and safe havens diminish, individuals who share the destructive 

goals of these groups but have no formal connection to them will 

pose an increasing threat. 

The roving wiretap authority allows the government to maintain 

surveillance of a target who has been identified or specifically described and who attempts to thwart surveillance by rapidly changing cell phones or other facilities. The government must demonstrate probable cause that the target is an agent of a foreign 

power and that that target is using or will use the cell phone. The 

government must also make a specific showing that the target will 

attempt to thwart surveillance. And if the government uses a roving wiretap order, it must notify the court within 10 days of that 

use and demonstrate the specific facts that demonstrate that the 

target is using the new cell phone. 

This authority is critical to efforts to collect intelligence on and 

protect against terrorists and foreign intelligence officers who have 

received countersurveillance training—our most sophisticated adversaries. The government has sought and been granted the authority in an average of 22 cases per year. The government has had 

occasion to use that authority granted by the court far more seldom 

than that. 

The business records provision allows the government to obtain 

any tangible thing it demonstrates to the FISA Court is relevant 

to a counterterrorism or counterintelligence investigation. This provision is used to obtain critical information from the businesses unwittingly used by terrorists in their travel, plotting, preparation 

for, communication regarding, and execution of attacks. It also supports an important sensitive collection program, about which many 

Members of the Subcommittee or their staffs have been briefed. 

All applications of this authority are subject to FISA Court approval, minimization procedures, and robust oversight. Each of 

these authorities meets an important investigative need. The Department and the Administration are firmly committed to ensuring 

that they are used with due respect for the privacy and civil liberties of Americans. 

We welcome discussion with the Subcommittee directed toward 

ensuring that these authorities are renewed in a form that maintains their operational effectiveness and protects privacy and civil 

liberties. 

Finally, I would like to address national security letters. A number of bills have recently been introduced, on both sides of the Hill, 

that amend the five statutes governing this investigative authority. 

I appreciate the careful thought and hard work that went into 

those legislative proposals. 

The Department looks forward to engaging regarding them with 

Members of the Subcommittee. The Administration has not taken 

an official position on any particular provision on NSLs, so my ability to respond to questions regarding them today will be limited. 

I appreciate the Subcommittee’s understanding in this regard 

and its recognition that today’s hearing is only the beginning of a 

process of working closely together to create legislation that main-
9 

tains the operational effectiveness of these important investigative 

tools and protects the privacy and civil liberties of Americans. 

Thank you. 

[The prepared statement of Mr. Hinnen follows:] 

PREPARED STATEMENT OF TODD M. HINNEN
10 
11 
12 
13 
14 
15 

Mr. NADLER. I thank the gentleman. 

I will begin the questions by recognizing myself for 5 minutes. 

Mr. Hinnen, with respect to the so-called lone wolf authority, 

since terrorism is obviously a crime, why do we need this provision? Why not use ordinary Article 3 warrants? What additional 

powers does this provision give beyond the normal Article 3 warrant, and why are those powers necessary? 

Mr. HINNEN. Thank you, Mr. Chairman. 
16 

The distinction, I think, between Article 3 powers and FISA powers are the factors recognized by Congress when enacting FISA in 

the first place, the needs of the government in conducting intelligence investigations. 

Whereas when using Article 3 authorities you are investigating 

the violation of one of the criminal laws, in an intelligence investigation or a counterterrorism investigation the government is 

often not intending to investigate a violation of the criminal law 

and often doesn’t have prosecution as its end goal. 

Mr. NADLER. Regardless, can you get a lone wolf warrant in a 

circumstance where you couldn’t get an Article 3 warrant? 

Mr. HINNEN. I think it is the conditions under which you can get 

the authority that are important. The additional secrecy that it 

provides that protects an ongoing intelligence investigation—— 

Mr. NADLER. The additional secrecy? Aren’t Article 3 warrants 

under seal? 

Mr. HINNEN. They may be under seal, but those orders are eventually unsealed, as are the applications that underlie them. And 

often the predicate facts that support the issuance of such an order 

are of sufficient sensitivity that the government does not want 

them—— 

Mr. NADLER. So if Article 3 warrants had the authority to keep 

certain things, what you are talking about, secret, then that would 

be an adequate substitute for that? 

Mr. HINNEN. I think still the important distinction between the 

requirement under FISA that the government demonstrate that the 

individual is an agent of a foreign power and the requirement 

under Title III that the government demonstrate—— 

Mr. NADLER. In the roving wiretap they don’t have to demonstrate that—I am sorry, in the lone wolf they don’t have to—— 

Mr. HINNEN. Under the lone wolf, the government still has to 

demonstrate that the target is an agent of a foreign power under 

the definitions in—— 

Mr. NADLER. So you are telling me it is harder to get because 

they have to demonstrate something that they don’t have to demonstrate for an Article 3. 

So my question then is, assuming you took care of the problem 

of potentially unsealing records eventually, because you wanted to 

keep certain things secret, what advantage is there to the government, in terms of an investigation, aside from having to jump 

through additional hoops to get the warrant in the first place, 

which is not an advantage, to using this as opposed to an Article 

3 warrant? 

Mr. HINNEN. Mr. Chairman, I didn’t mean to imply that it was 

more difficult to get a FISA Court order, simply that the government had to make a different showing. 

Mr. NADLER. Fine. But let’s assume—never mind that. Why is it 

to the government’s advantage, other than the question of declassifying information eventually—let’s assuming we amended that— 

what is the advantage of a roving wiretap as opposed to an Article 

4 wiretap? 

Mr. HINNEN. That the showing that the government has to make 

in order to get a FISA wiretap is more closely tailored to an intel-
17 

ligence investigation, that it focuses on an agent of a foreign power 

rather than a violation of the criminal laws. 

Mr. NADLER. So you could get it under certain circumstances 

when you couldn’t get an Article 3 wiretap? 

Mr. HINNEN. The government gets it by making a different showing. 

Mr. NADLER. And the facts are such that there are cases in 

which you could make the showing necessary for a roving wiretap 

but couldn’t make the showing in the same case necessary for an 

Article 3 wiretap warrant? 

Mr. HINNEN. I believe that there is some overlap but not complete—— 

Mr. NADLER. I would ask then that you, after today—because I 

want to go to two other questions in the minute I have left—give 

us specific information on how it would be advantageous to the government and, assuming we plug that secrecy problem, why Article 

3 warrants wouldn’t suffice. I mean, how does it really differ? 

The Administration has noted in its support for the reauthorization that it is willing to consider proposals to better protect privacy 

as well as efficacy. Given their position in the context of section 

215 orders, would the Administration support returning to a standard that required specific facts showing that the records sought are 

related to a foreign power rather than the current ‘‘relevant’’ standard? And, if not, why not? 

Mr. HINNEN. Thank you, Mr. Chairman. That is an interesting 

question, whether the Administration would support a return to 

this ‘‘specific and articulable’’ standard which existed before the 

PATRIOT Act, as opposed to the ‘‘relevant’’ standard. This, of 

course, is something that Congress changed in the original PATRIOT Act. 

The Administration has not taken an official position on this yet. 

I would say, sitting here today, that it is not entirely clear to me 

that there is a substantive difference between the ‘‘specific and 

articulable’’ standard and the ‘‘relevant’’ standard. 

If there is, in fact, not, then I would suggest that settled expectations militate in favor—— 

Mr. NADLER. Clearly, if there is no difference, it doesn’t matter. 

But everybody seems to have said for the last 10 years that there 

is a big difference. 

Mr. HINNEN. If, in fact, there is a difference, I think the presumption would be against change. 

Mr. NADLER. Say it again? I am sorry. 

Mr. HINNEN. The presumption would be against change, against 

returning—— 

Mr. NADLER. Because? 

Mr. HINNEN. In part because Congress recently made the change 

to the relevance factor; in part because a practice has developed 

around the current standard; and in part because Congress has 

added additional safeguards, including judicial review of orders, in 

2006. 

Mr. NADLER. Well, again, I would simply say this, and then my 

time will have expired: Saying that we shouldn’t change something 

because Congress did it is never a good argument, because we are 

always changing something. 
18 

I would ask you, again, after today, to supply us, if you think we 

shouldn’t change that, with specific reasons other than ‘‘we are already doing it this way,’’ but specific reasons and illustrations of 

how that would affect intelligence gathering and why it would not 

be a good idea to change it. 

Mr. HINNEN. Certainly. 

Mr. NADLER. Thank you. 

My time has expired. I now recognize the distinguished Ranking 

Member of the Subcommittee, Mr. Sensenbrenner. 

Mr. SENSENBRENNER. Thanks very much, Mr. Hinnen. You are a 

breath of fresh air. And I would say that, in many cases, you have 

vindicated many of the assertions that I made, both as the author 

of the PATRIOT Act in 2001 as well as the author of the PATRIOT 

Act reauthorization, which was signed by the President in March 

of 2006. 

The PATRIOT Act has been extensively litigated, and, in most 

cases, it has been held constitutional. Where there has been the 

biggest problems is relative to the national security letters issue. 

And I would point out that if you look at the legislative history 

behind national security letters, that was not one of the expanded 

powers given to law enforcement by the PATRIOT Act, but was 

merely changing the position of another statute that was authored 

by one of the PATRIOT Act’s biggest critics, Senator Leahy of 

Vermont, from one part of the criminal code to the other. And I can 

say that the reauthorization put significant additional civil-liberties 

protections into the use of national security letters that were not 

there in the original Leahy-Kastenmeier legislation of 1986. 

Now, you know, all of that being said, given the debate over the 

PATRIOT Act, could you kind of give somewhat of an argument 

over why the Administration has come down in favor of extending 

the three expiring provisions of the PATRIOT Act without amendment? 

Mr. HINNEN. Thank you, Mr. Ranking Member. 

Just to clarify, the Administration’s position is to reauthorize the 

three expiring provisions. And the Administration has indicated 

that it is open to discussion of amendments so long as those 

amendments both maintain the operational effectiveness of the authorities and protect privacy and civil liberties. 

And I think the reason that has been the position of the Administration is because we recognize the need to strike this continuing 

balance between effective intelligence investigative authorities on 

the one hand and the privacy and civil liberties of Americans on 

the other. And we are anxious to work collaboratively with Congress to strike that balance. 

Mr. SENSENBRENNER. Will the Administration put the heat on 

Congress? Because I fear what would happen if December 31st 

comes and goes and the three expiring provisions effectively do expire. What would be the consequence of Congress letting this slip 

through the cracks, in your opinion? 

Mr. HINNEN. As I mentioned in my opening statement, Mr. 

Ranking Member, we feel that these are very important investigative authorities and that it would be very unfortunate to allow 

them to lapse. The Administration firmly supports renewal before 
19 

December 31 so that there is no gap in the investigative capabilities of the government. 

Mr. SENSENBRENNER. Thank you. 

I yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the distinguished Chairman of the 

full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Welcome, Mr. Hinnen. Is this the first time you have testified before Judiciary? 

Mr. HINNEN. Yes, it is. 

Mr. CONYERS. How long have you been in the Department of Justice? 

Mr. HINNEN. Since January 21, 2009, Mr. Chairman. 

Mr. CONYERS. January 21. You know, you sound like a lot of people from DOJ that have come over here before, and yet you have 

only been there a few months. Do you think that is a good thing 

or a bad thing? 

No, okay, you don’t have to respond to that. 

Let me ask you something. Do you know how many times the 

PATRIOT Act has been challenged in the Federal courts? 

Mr. HINNEN. I have not counted, Mr. Chairman. I know that various provisions of it have been challenged a number of times. 

Mr. CONYERS. Uh-huh. How about five? 

Mr. HINNEN. I will take the Chairman’s word for it. 

Mr. CONYERS. All right. Thank you. 

Now, I refer now to something I think you know about. The inspector general described an incident in which the Foreign Intelligence Surveillance Act Court refused to issue a 215 order because 

the request intruded on first amendment rights. Do you remember 

that case? 

Mr. HINNEN. With due respect, Mr. Chairman, unless we are discussing one of the declassified opinions of the FISA Court, that is 

not something I am at liberty to discuss here in this setting. 

Mr. CONYERS. You are not at liberty to discuss it? It has been 

in the newspapers. We are discussing it. I have had a secret clearance before you, longer than you. 

Mr. HINNEN. I can readily believe that, Mr. Chairman. However, 

the fact that it has been published in the newspapers does not 

mean that it has been declassified and does not mean that it is appropriate for discussion in an open hearing here today. 

Mr. CONYERS. Well, just a minute. Let me turn to the chief of 

staff of the House Judiciary Committee. 

Well, would you say that the inspector general, who oversights 

intelligence, can refer to matters like this and have them published 

and made public without violating secrecy requirements? 

Mr. HINNEN. When the inspector general for the Department of 

Justice or another part of the intelligence community desires to 

make part of a report public, he works closely with the intelligence 

community to ensure that the information is appropriately declassified before it is publicly released. 

Mr. CONYERS. Well, the inspector general has had it redacted. 

Are you questioning the inspector general’s knowledge of the law 

since January 21—— 
20 

Mr. HINNEN. Certainly not. 

Mr. CONYERS [continuing]. Of 2009? 

Mr. HINNEN. Certainly not, Mr. Chairman. Merely proceeding 

out of an abundance of caution in light of the fact that inspectors 

general often issue both classified and unclassified versions of reports. And I don’t have—— 

Mr. CONYERS. Well, have you ever seen the unclassified version 

of the inspector general’s criticism of the fact that these orders 

were being issued and he refused to let it—you never heard of this 

ever happening before? There were several cases—there were several instances in the same case which this occurred. 

Mr. HINNEN. I am familiar with the inspector general’s report on 

215 orders and familiar with the fact that the business records provision, like other parts of FISA, contain express protections for first 

amendment rights. 

Mr. CONYERS. Okay. Now, what about the FBI? How do you consider their ability to handle classified, unclassified, and redacted 

information? Pretty good? 

Mr. HINNEN. I think the FBI—— 

Mr. CONYERS. Okay. The FBI went and issued a national security letter for the same information, and the inspector general described it as ‘‘inappropriate.’’ And I consider it much worse than 

that. 

Here is the problem. It is very simple. What the court, the intelligence court, and what the inspector general were complaining 

about is that you could get around the court’s refusal to issue an 

order in a terrorist investigation by merely going to the FBI, getting around them, and they issue a national security letter for the 

very same information. Problem: That means that the court and 

the inspector general found that there was an abuse of process in 

handling this terrorist investigation. 

And I am going to have my staff supply you or your staff with 

all of this information, all of which is public. 

Mr. HINNEN. Thank you, Mr. Chairman. 

Now that I am clear on which reports we are referring to, if you 

will give me a moment to respond. 

Mr. CONYERS. All right. 

Mr. HINNEN. In 2007, the inspector general published its first report on national security letters, which found some sloppy recordkeeping and administrative errors by the Federal Bureau of Investigation, in part because of the Byzantine nature and interaction 

of the five governing statutes. 

In 2008, the inspector general issued a follow-up report that indicated that many of those issues had been fixed and provided recommendations for the government to make further improvements. 

Since that time, the Federal Bureau of Investigation has put into 

place a new data subsystem governing NSLs that prevents many 

of the administrative errors and ensures much of the record-keeping that the inspector general found was in error in the 2007 report. 

In addition, the National Security Division, where I work, has increased its oversight efforts and now does national security reviews 

of FBI field offices on an annual basis. And, of course, Congress 

and the inspector general maintain their oversight authority. 
21 

Mr. CONYERS. Well, I am glad your memory has been refreshed. 

That is wonderful. 

What we have here are a whole series of problems. This is just 

one case that we have been discussing all this time. There are 

great privacy problems. 

Have you ever examined, in the course of your official duties, the 

American Civil Liberties Union’s comments about our discussion 

about privacy? 

Mr. HINNEN. I am certainly familiar with many of their comments and with their testimony today, yes. 

Mr. CONYERS. And do you find any serious disagreements with 

any parts of it? 

Mr. HINNEN. I do find myself in disagreement with some parts 

of their testimony, yes, Mr. Chairman. 

Mr. CONYERS. And some parts you find agreement with? 

Mr. HINNEN. Certainly. 

Mr. CONYERS. If I could indulge the Chairman’s generosity for 

sufficient time—— 

Mr. NADLER. Without objection. 

Mr. CONYERS [continuing]. To just identify the parts that you 

find yourself in agreement with and the parts that you may not be 

so enthusiastic about. 

Mr. HINNEN. With due respect, Mr. Chairman, you have asked 

me about the ACLU’s positions in general. I would—— 

Mr. CONYERS. No, not in general. No. 

Mr. HINNEN. With respect to these provisions and with respect 

to the PATRIOT Act. 

Mr. CONYERS. Yes. 

Mr. HINNEN. I would note that their testimony on that subject 

today is 35 single-spaced pages. I would be happy to—I simply 

don’t think that the Committee has—— 

Mr. CONYERS. No, I wouldn’t want to do that. But, well, let’s use 

numbers. Let’s indicate to me how many things you agree with in 

that 35 single-spaced closed printing that you found agreement 

with and how many issues that you found some disagreement with. 

Mr. HINNEN. Mr. Chairman, I didn’t investigate the testimony 

with a mind to try and determine what percentage I agreed with 

and what I didn’t. 

Mr. CONYERS. Probably not. I can understand that. 

Mr. HINNEN. The best that I can say is that I agree with some 

parts of it and disagree with others. 

Mr. CONYERS. Uh-huh. And how will we find out which parts you 

agreed with and which parts you didn’t? 

Mr. HINNEN. Hopefully, Mr. Chairman, through the dialogue that 

the Subcommittee is embarking upon today—— 

Mr. CONYERS. Well, how about you sending us a memo identifying it in some detail, or as much or as little as you want since 

I will write you back if we need more? 

Mr. HINNEN. I would be happy to take that back to the Department, Mr. Chairman. 

Mr. CONYERS. Well, I am going to take it back to the Department 

with you. And thank you very much for your testimony. 

Mr. HINNEN. Thank you for your questions. 

Mr. NADLER. Thank you. 
22 

The gentleman from Florida is recognized for 5 minutes. 

Mr. ROONEY. Thank you, Mr. Chairman. 

Mr. Hinnen, I also started my current employment in January, 

so hopefully this question is fairly simple. 

Last week, Senator Feingold introduced legislation that, amongst 

other things, repeals Title VIII of FISA, which provided civil liability protections to telecommunication carriers who assisted the government following the 9/11 terrorist attacks, a provision that President Obama voted for. 

To your knowledge, does the Administration support this proposal? 

Mr. HINNEN. Congressman Rooney, the Administration has taken 

no official position on this or any other provision of Senator 

Feingold’s bill. 

As you noted in your question, the President did vote for the 

FISA Amendments Act as a Senator, and DOJ has defended the 

immunity provision in litigation. So, without forecasting an official 

position, as the President has suggested, it may be more productive 

to look forward to meet the challenges still before us than to reopen 

debates resolved in the past. 

Mr. ROONEY. Thank you. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I now recognize the gentleman from Georgia for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

And I think this issue clearly draws a distinction between the 

two basic philosophies that the Supreme Court would use in solving the case. Would it be a strict construction kind of analysis, or 

would it be by chance the acknowledgment that the Constitution is 

a living and breathing document and has to be interpreted in accordance with the realities of the time? 

And so it would be interesting to see how the United States Supreme Court handles this, whether or not it will be a strict construction or whether or not we will have Supreme Court justices 

legislating from the bench, as they like to call it. 

But, at any rate, the issue on roving wiretaps enables the government to target persons rather than places. And ‘‘places’’ is the 

term used in the fourth amendment. Search warrants must, quote, 

‘‘particularly describe the place to be searched,’’ end quote. 

Are there any other provisions of the United States Constitution 

or the Bill of Rights upon which the Administration would depend 

on for justifying the extension of the act with respect to roving 

wiretaps? 

Mr. HINNEN. If I understand the question correctly, the Administration feels that the roving surveillance authority is fully constitutional. Although the fourth amendment text speaks specifically of 

places, the Supreme Court has recognized, going back to the Katz 

decision in which an individual using a telephone booth was found 

to be protected by the fourth amendment, that the fourth amendment protects persons as well as places. 

And so, I think it is against that constitutional backdrop that 

consideration of the roving authority has to be undertaken. Having 

said that, I think that the provision readily meets constitutional 

scrutiny. 
23 

Mr. JOHNSON. Well, have there been any court decisions that 

have extended the definition, if you will, of place to be searched to 

be described in particularity? 

Mr. HINNEN. I think the fourth amendment jurisprudence has 

applied the fourth amendment in a wide variety of places and contexts. 

Mr. JOHNSON. Has it ever extended that particular provision of 

the fourth amendment? 

Mr. HINNEN. I am not sure I understand how—— 

Mr. JOHNSON. In other words, have there been any cases where 

the issue was whether or not an extension of—this is not a very 

artfully posed question. 

In other words, we have the fourth amendment that says search 

warrants must, quote, ‘‘particularly describe the place to be 

searched.’’ Have there been any court rulings that you know of 

which have extended the plain intent of the Founders in that situation? 

Mr. HINNEN. I think I understand, and I apologize. I think my 

answers have been inartful. 

The FISA Court in the past has recognized that, given the specific needs of intelligence investigations, a probable-cause showing 

with respect to the fact that the individual is an agent of a foreign 

power is sufficient, regardless of the place to be searched or that 

kind of thing. 

In the roving authority, it is important that the government has 

to demonstrate to the court probable cause that the identified or 

specifically described individual is an agent of a foreign power. 

And I think it is that provision, together with the probable cause 

requirement that the government show that the cell phone or facility will be used by that target, that renders the roving authority 

constitutional. In other words, it is the specific description or identification of the target that renders it constitutional. 

Mr. JOHNSON. One last question, if I may, Mr. Chairman. 

Does the roving wiretap provision of the PATRIOT Act, does it 

allow U.S. citizens to be subject thereto? 

Mr. HINNEN. The statutory definition that roving relies upon refers to both parts of the ‘‘foreign power’’ definition in the Foreign 

Intelligence Surveillance Act. So it can apply, if the other conditions of the statute are met, to a United States person who has 

demonstrated to be acting on or behalf of a foreign power; it can 

also apply in a circumstance where the target is a non-U.S. person 

but meets one of the other statutory definitions. 

Mr. JOHNSON. And who would determine whether or not there is 

probable cause—that would be the standard that would apply— 

probable cause to believe that a United States citizen was cooperating or being a tool of a foreign power or terrorist organization? 

Mr. HINNEN. The FISA Court—under the 1978 legislation that 

Congress passed, the FISA Court would exercise independent oversight of the government’s showing with respect to whether there is 

probable cause that an individual is an agent of a foreign power. 

Mr. JOHNSON. And that would take place before or after the wiretap, if you will, were instituted? 
24 

Mr. HINNEN. With respect to the fact that the individual is an 

agent of a foreign power, that probable-cause showing is made before the wiretap order is granted by the court. 

Mr. JOHNSON. Say that again? 

Mr. HINNEN. With respect to the probable-cause requirement 

that the individual targeted is an agent of a foreign power, that determination is made by the FISA Court before surveillance is authorized. 

Mr. JOHNSON. Is that just limited to U.S. citizens, or does it also 

have to be shown by probable cause with respect to a non-U.S. citizen? 

Mr. HINNEN. That is with respect to any target of surveillance 

under the Foreign Intelligence Surveillance Act. 

And I should drop a footnote to that and mention that there is 

emergency authority provided by the statute pursuant to which the 

Attorney General can begin surveillance and demonstrate probable 

cause within 7 days afterwards. 

But, in the vast majority of cases, in the standard FISA case, the 

government must always demonstrate probable cause to the FISA 

Court before surveillance begins that the individual is an agent of 

a foreign power. 

Mr. JOHNSON. Thank you, sir. 

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

I now recognize the gentleman from Iowa. 

Mr. KING. I thank you, Mr. Chairman. 

And I am plenty happy with the latitude given my friend, Mr. 

Johnson, because he doesn’t have to speak as quickly as I have to 

in the environment that I originate in. Neither would it be the case 

for the New Yorkers, who can get it out pretty quickly as well. 

Mr. NADLER. Nobody speaks as quickly as the gentleman from 

Massachusetts. 

Mr. KING. That is well made. 

And I thank the witness for his testimony here. 

And I just ask if you are familiar with the case that has unfolded 

in New York, the plot against Grand Central Terminal, and the 

transfer of information and people from Denver to New York, the 

communications that are the background of that, and if the gentleman can advise this Committee as to whether the PATRIOT Act 

was utilized in any of that investigation. 

Mr. HINNEN. Thank you for the question. 

I am familiar, obviously, with the case. As we have discussed 

today, and as the Supreme Court, the FISA Court, and Congress 

have repeatedly emphasized, secrecy is often critical to the success 

of national security investigations. And it is unfortunate when 

those investigations are jeopardized by a leak, as was the case, and 

has resulted in those articles. 

I am afraid that, because the authorities used to investigate that 

case or that may have been used to investigate that case are authorities before the FISA Court, I am not at liberty to discuss them 

in an open hearing here today. 

Mr. KING. Would you care to reclarify that statement, ‘‘was or 

may have been used’’? 

Mr. HINNEN. May have been used, yes. 

Mr. KING. I thought you might want to reiterate—— 
25 

*The expiring USA PATRIOT Act provisions are all Foreign Intelligence Surveillance Act 

(FISA) tools designed to collect foreign intelligence information and as such are not commonly 

used to build criminal cases. If information obtained through FISA is used in a criminal proceeding, it is acknowledged and handled under the rules of discovery and statutory requirements. However, because the protection of sources and methods is paramount, any specific surveillance techniques (such as roving wire taps) used to obtain such information would not ordinarily be revealed. See generally 50 U.S.C. § 1806. Thus, even if there were cases where these 

techniques were used, such techniques would not have been publicly disclosed and the Department cannot provide unclassified examples. 

Mr. HINNEN. Thank you, Congressman. 

Mr. KING [continuing]. That, Mr. Hinnen. 

And nothing prevents me from speculating or speaking in terms 

of hypotheticals. And I will just ask you to go to wherever your 

limit is, and we will accept that. 

As I read the news on this particular case, and I can only contemplate as to what might have happened if the case hadn’t been 

broken, and that then we can imagine that there may have been 

an attack that took place already or one that was unfolding that 

we would have no knowledge of that could have detonated one or 

more devices at Grand Central Terminal or around the various locations in New York City. I am very grateful that there have been 

a significant number of plots that have been, that have been broken open on the part of our security personnel all the way across 

the spectrum of our law enforcement from top to bottom, and sometimes we got lucky when we got a regular American citizen that 

weighed in on it, that little tip was handled well, we have been safe 

for a long time. 

But if one were to try to imagine a case that would have similarities to this one, or maybe one that you can testify on, can you 

paint a scenario by which we would have not have been able to 

gather the data necessary to break a terrorist plot without the PATRIOT Act? 

Mr. HINNEN. If I understand the question correctly, yes, I think 

there are circumstances that are not difficult to imagine, some of 

which I referred to in my opening testimony in which the absence 

of any of the three investigative authorities that are up for renewal 

this year would hamper the government’s ability to effectively investigate an imminent plot. 

Mr. KING. Let me pose the question this way, as I listened to 

Chairman Conyers talk about it and ask you to go on record as to 

parts of the report that you agree and the ones you disagree with, 

is it possible for you to present to this Committee as a matter of 

a formal request, a list of the plots that have been broken since the 

PATRIOT Act was passed and the successes of the PATRIOT Act, 

and then, point to the sections in the code that were utilized among 

those that are not currently under investigation so that you could 

divulge that information in a public fashion? 

As this Committee weighs the idea of reauthorizing the PATRIOT Act, I would think that we should be able to weigh the successes of the PATRIOT Act, as well as be able to point to the calamities that might have taken place had we not had the PATRIOT 

Act? Would that be possible, Mr. Hinnen? 

Mr. HINNEN. I certainly think that something along those lines 

would be possible and I’ll take that request back to the Department.* 
26 

Mr. KING. I expect that given their interest in this reauthorization, that they’ll be eager to provide that information. And without 

belaboring the point, but watching the clock, I would just, I would 

point out that as I sit here and listen to the cross examination and 

the discussion that’s taken place, I can’t help but think what if this 

hearing were taking place in the middle of smoke and dust coming 

out of the ground at Grand Central Terminal? Wouldn’t there be 

an entirely different tone to this discussion today? If the PATRIOT 

Act has saved at this point hypothetically but uncountable American lives. We have been able to avoid a domestic attack of any significant success in the United States since September 11, 2001, and 

so I’d just ask when you contemplate if they had been successful, 

how the tone of this discussion might have changed. 

Mr. HINNEN. Well, I would hope, Congressman, that the tone of 

the discussion would be careful and deliberative and designed to 

ensure that the intelligence investigative authorities that resulted 

were effective and gave intelligence officers the tools that they need 

to do their jobs, while, at the same time, protecting American’s privacy and civil liberties. So I hope that, although we would all have 

reason to grieve or mourn if that were the case, that the tone of 

the debate and the substance of the debate would be very similar 

to the one that we are having right now, and that I expect the 

other witnesses will have when they have an opportunity to testify 

as well. 

Mr. KING. And then in conclusion, and I thank the witness. I’d 

just point out that because we don’t have a calamity to discuss this, 

we need to make sure that we evaluate it within the light of what 

might have happened. I urge that consideration to the panel. And 

I would thank the witness and yield back the balance of my time. 

Mr. NADLER. The gentleman’s time has expired. I thank the gentleman, and I thank the witness. We look forward to your providing 

us with the information that you have said you would. I thank you. 

We will now proceed with our second panel. And I would ask the 

witnesses to take their places. In the interest of time, I will introduce them while they are taking their seats. Suzanne Spaulding is 

currently a principal in Bingham Consulting Group and of counsel 

to Bingham McCutchen, where she advises clients on issues related 

to national security. Ms. Spaulding was Democratic Staff Director 

for the U.S. House of Representatives Permanent Select Committee 

on Intelligence. She had started working on terrorism and other 

national security issues 20 years earlier in 1983 as Senior Counsel, 

and later Legislative Director for Senator Arlen Specter. After 6 

years at the Central Intelligence Agency where she was Assistant 

General Counsel and the Legal Adviser to the Director of Central 

Intelligence’s Nonproliferation Center, she returned to the Hill as 

general counsel for the Select Committee on Intelligence. 

She served as the executive director of two Congressionally-mandated commissions: The National Commission on Terrorism, 

chaired by Ambassador L. Paul Bremer, III, and the Commission 

to Assess the Organization of the Federal Government to Combat 

the Proliferation of Weapons of Mass Destruction, chaired by 

former Secretary of Defense and CIA Director John Deutch. She 

advised both the Advisory Panel to assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, 
27 

the Gilmore Commission, and President George W. Bush’s Commission on the Intelligence of the United States regarding weapons of 

mass destruction, the Robb/Silberman commission. 

She is currently a member of the CSIS Commission on 

cybersecurity for the 44th presidency. In 2002, she was appointed 

by then-Virginia Governor Mark Warner to the Secure Commonwealth Panel established after the attacks of September 11 to advise the governor and the legislature regarding preparedness and 

response issues in the Commonwealth of Virginia. She received her 

undergraduate and law degrees from the University of Virginia. 

Tom Evans represented Delaware in the House of Representatives from 1977 to 1983. He served as co-Chairman and operating 

head of the Republican National Committee, Deputy Chairman of 

the Republican National Finance Committee and the Republican 

National Committeemen from Delaware. He was also Chairman of 

the Congressional Steering Committee of the Reagan for President 

Committee, served on the executive committee of the Reagan Bush 

campaign and was vice chairman of the congressional campaign 

committee with responsibility for White House liaison. Tom Evans 

also served as a member of an informal group known as the 

Reagan kitchen cabinet that directly and regularly advised the 

President on a broad range of issues. 

In Congress he was a Member of the House Banking Committee 

and the Merchant Marines and Fisheries Committee. He has a BA 

and an LLD from the University of Virginia. 

Ken Wainstein, and I hope I pronounced that correctly, is a partner in O’Melveny’s Washington, D.C. Office and a member of the 

White Collar Defense and Corporate Investigations Practice. He focuses his practice on handling civil and criminal trials and corporate internal investigations. Mr. Wainstein spent 19 years in the 

Department of Justice, from 1989 to 2001. He served as Assistant 

U.S. attorney in both the Southern district of New York and the 

District of Columbia. In 2001, Mr. Wainstein was appointed director of the executive office for U.S. attorneys. The next year, Mr. 

Wainstein joined the Federal Bureau of Investigation to serve as 

general counsel and later as Chief of Staff to Director Robert S. 

Mueller. Two years later he was appointed and later confirmed as 

U.S. Attorney for the District of Colombia. 

In 2006, he became the first Assistant Attorney General 

forNationaal security at the Justice Department. In 2008, Mr. 

Wainstein was named President Bush’s homeland security adviser, 

with a portfolio covering the coordination of the Nation’s 

counterterrorism, homeland security, infrastructure protection and 

disaster response and recovery efforts. He has a BA from the University of Virginia and a JD from the University of California at 

Berkeley. 

Mike German is a policy counsel for the American Civil Liberties 

Union’s Washington legislative office. Prior to joining the ACLU, 

Mr. German served 16 years as a special agent with the FBI, 

where he specialized in domestic terrorism and covert operations. 

Mr. German served as an adjunct professor for law enforcement 

and terrorism at the National Defense University and is senior fellow of globalsecurity.org. He has a BA in Philosophy from Wake 
28 

Forest University and a JD from Northwestern University law 

school. 

I am pleased to welcome all of you. Your written statements will 

be made part of the record in their entirety. I would ask each of 

you to summarize your testimony in 5 minutes or less. To help you 

stay within that time, there is a timing light at your table. When 

1 minute remains the light will switch from green to yellow and 

then red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. 

[Witnesses sworn.] 

Mr. NADLER. Let the record reflect that the witnesses answered 

in the affirmative. You may be seated. Our first witness is Susan 

Spaulding who is recognized for 5 minutes. 

TESTIMONY OF SUZANNE E. SPAULDING, FORMER STAFF DIRECTOR, HOUSE PERMANENT SELECT COMMITTEE ON INTELLIGENCE 

Ms. SPAULDING. Thank you, Subcommittee Chairman Nadler, full 

Committee Chairman Conyers, and Members of the Committee. 

Thank you for inviting me to participate in today’s hearing on the 

USA PATRIOT Act and related provisions. Earlier this month, we 

marked another anniversary of the attacks of September 11. In the 

8 years since that indelible manifestation of the terrorist threat, 

we’ve come to better understand that respect for the Constitution 

and the rule of law is a source of strength and can be a powerful 

antidote to the twisted lure of the terrorist’s narrative. In fact, 

after spending 20 years working terrorism and national security 

issues for the government, I am convinced that this approach is essential to defeating the terrorist threat. Given this national security imperative, Congress should use this opportunity to more 

broadly examine ways to improve our overall domestic intelligence 

framework, including a comprehensive review of the FISA, National Security Letters, attorney general guidelines and applicable 

criminal investigative authorities, and I would encourage the Administration to do the same. 

This morning, however, I will focus on the sunsetting provisions 

that are the focus of this hearing. Sections 215 and 206 both have 

corollaries in the criminal code. Unfortunately, important safeguards were lost in the translation as these moved into the intelligence context. Section 206, for example, was intended to make 

available in intelligence surveillance the roving wire tap authority 

that criminal investigators had. This was an essential update. 

However, there are specific safeguards in the criminal title three 

provisions that were not carried over to FISA, requirements that 

provided significant safeguards designed to protect fourth amendment rights of innocent people. Their absence in section 206 increases the likelihood of mistakes and the possibility of misuse. In 

addition, in the criminal context where the focus is on successful 

prosecution, the exclusionary rule serves as an essential deterrent 

against abuse, one that is largely absent in intelligence investigations where prosecution may not be the primary goal. This highlights the care that must be taken when importing criminal authorities into the intelligence context and why it may be necessary 
29 

to include more vigorous standards or safeguards, and I have suggested some in my written testimony. 

Similarly, section 215, governing orders for tangible things, attempted to mimic the use of grand jury or administrative subpoenas in the criminal context. However, criminal subpoenas require some criminal nexus. FISA’s section 215 does not. Moreover, 

the PATRIOT Act amendments broadened this authority well beyond business records to allow these orders to be used to obtain 

any tangible things from any person. 

This could include an order compelling you to hand over your 

personal notes, your daughter’s diary or your computer, things to 

which the fourth amendment clearly applies. Again, in my written 

testimony I have tried to suggest ways to tighten the safe guards 

for section 215 without impairing the national security value of this 

provision. In the interest of time, however, I will move to the lone 

wolf provision. 

Four years ago, I urged Congress to let this provision sunset and 

I reiterate that plea today. The Administration admits that the 

lone wolf authority has never been used, but pleads for its continuation just in case. The problem is that this unnecessary provision 

comes at a significant cost, the cost of undermining the policy and 

constitutional justification for the entire FISA statute, a statute 

that is an extremely important tool for intelligence investigations. 

The legislative history in court cases before and after the enactment of FISA, including two cases from the FISA court itself make 

clear that this extraordinary departure from the normal fourth 

amendment warrant standards is justified only by the unique complications inherent in investigating foreign powers and their 

agents. 

Unfortunately, instead of repealing or fixing the lone wolf provision, Congress expanded it by adding a person engaged in the 

international proliferation of weapons of mass destruction. There’s 

no requirement that this person even knows that they are contributing to proliferation. A non U.S. person working for an American 

company whose involved in completely legal sales of dual use goods 

that unbeknownst to her are being sold to a front company for use 

in the development of chemical weapons, for example, could be considered to be engaged in the proliferation of WMD and thereby 

have all of her communications intercepted and home secretly 

searched by the U.S. Government. As the former legal adviser for 

Intelligence Community’s nonproliferation center and executive director of a congressionally mandated WMD Commission, I fully understand the imperative to stop the spread of these dangerous technologies. However, there are many tools available to investigate 

these activities without permitting the most intrusive techniques to 

be used against people who are unwittingly involved and whose activity is perfectly legal. 

Let me close by commending the Committee for its commitment 

to ensuring that the government has all appropriate and necessary 

tools at its disposal in this vitally important effort to counter today’s threats, and that these authorities are crafted and implemented in a way that meets our strategic goals as well as our tactical needs. With a new Administration that provokes less fear of 

the misuse of authority, it may be tempting to be less insistent 
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upon statutory safeguards. On the contrary, this is precisely the 

time to seize the opportunity to work with the Administration to 

institutionalize appropriate safeguards in ways that will mitigate 

the prospect of abuse by future Administrations or by this Administration in the aftermath of an event. Thank you very much. 

Mr. NADLER. Thank you. 

[The prepared statement of Ms. Spaulding follows:] 
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PREPARED STATEMENT OF SUZANNE E. SPAULDING
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Mr. NADLER. Congressman Evans, you are recognized for 5 minutes. 

TESTIMONY OF THE HONORABLE THOMAS B. EVANS, JR., 

A FORMER REPRESENTATIVE IN CONGRESS 

Mr. EVANS. Thank you, Mr. Chairman, for inviting me today. It’s 

a pleasure to be here. It’s always good to be back, and it’s good to 

see my friend, the Chairman of the Judiciary Committee, the gentleman from Michigan, Mr. Conyers. And ladies and gentlemen of 

the Committee, it’s a privilege to—— 

Mr. NADLER. Could you pull the mike a little closer, please. 

Mr. EVANS. I still have 5 minutes? 

Mr. NADLER. Yes, we’re resetting the clock as we speak. 

Mr. EVANS. Well, anyway, it a privilege to be here. I’m delighted 

to be invited. I’m delighted to see my friend, the Chairman of the 

Committee, the gentleman from Michigan, Mr. Conyers. And I’m 

honored to represent the Liberty and Security Committee of the 

Constitution Project today. You have my previously prepared statement, and attached to it is the Liberty and Security Committee’s 

statement on reforming the PATRIOT Act. One word about the 

makeup of our Committee. It is truly bipartisan, bipartisan in nature. We address issues, not as Republicans or Democrats, but we 

need more of that, I think, in this country and here in Washington. 

Our membership is broad based, and it includes a number of 

former U.S. attorneys, some distinguished judges, former judges, 

professors of law, a few deans of law schools, even a publisher, Mr. 

Conyers, who is a publisher of the Detroit Free Press, Mr. Lawrence. And I might add, foundation chairman and senior members 

of the Administration. And I also want you to know that there are 

a number of conservative Republicans. I am a moderate Republican, but there are a number of conservative Republicans on this 

Committee, including, several who were Members of this body, constitutional scholars both. 

In the wake of the terrible tragedy it’s been pointed out of the 

September 11, 2001, our Nation clearly needed to mobilize in order 

to respond with a new and powerful counter-terrorism strategy. 

However, our bipartisan committee believes that there was an over 

reaction, an over reaction in the super heated fear surrounding 

Washington and our country at that time, and we should strive 

never to let our fears lead us to over reaction. And whenever we 

grant powers to the executive branch of government, we must incorporate proper safeguards to protect individual rights and ensure 

proper oversight. 

That’s why I am especially heartened to see this Committee exercising its oversight responsibility which is such a critically important element in our system of checks and balances. The members 

of the Liberty and Security Committee of the Constitution project 

have all joined together in the statement on reforming the PATRIOT Act which is attached to my statement for the record. 

Broadly speaking, we are urging the Congress to initiate some important changes if you proceed with the reauthorization of three 

provisions that are sunsetted in the PATRIOT Act. Briefly, we believe the business records or library records provision provides 

largely unchecked powers. We believe they should be tightened, 
48 

and the inclusion of a gag order should be limited to 30 days. The 

lone wolf provision permits the government to use the Foreign Intelligence Surveillance Act for the surveillance of a non U.S. person 

with no ties to any group or entity. And that’s important to remember. Suspects would still be subject to surveillance and search 

under traditional and well established standards of criminal conduct. The roving wiretap provision concerns us because innocent civilians may become inadvertent targets of surveillance. Two provisions, not scheduled to be sunsetted, are the ideological exclusion 

provision and the national security letter provision, section 505 of 

the PATRIOT Act. Let me focus for a minute on the NSLs. That 

provision does not even require a court order, and creates even 

greater potential for serious abuse. 

Section 505 enabled agents to seek information without any demonstrated factual basis, and it vastly expanded the types of financial institutions that can receive demands through an NSL letter, 

to include such businesses as travel agencies, real estate firms, insurance companies, automobile dealers. Unfortunately, and sadly, 

these overly broad powers did not just create the potential for 

abuse. You pointed those out, Mr. Chairman. Audits by the Inspector General released in 2007 and 2008 have revealed numerous actual abuses in the issuance of NSLs. Let me be clear. The Liberty 

and Security Committee believes that the FBI should have the 

tools necessary to protect our citizens. And let me say from a personal standpoint, I strongly believe that. My son could have died. 

My oldest son could have died in the attack on 9/11. But we strongly believe we need to protect the liberties of Americans. The integrity of our Constitution is critically important. We believe we’ve 

struck the proper balance in our recommendations. And I sincerely 

hope you will consider them carefully as you move forward. Thank 

you again for asking me to be here. 

Mr. NADLER. I thank the gentleman. 

[The prepared statement of Mr. Evans follows:] 
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PREPARED STATEMENT OF THE HONORABLE THOMAS B. EVANS, JR. 
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Mr. NADLER. Mr. Wainstein, you are recognized for 5 minutes. 

TESTIMONY OF KENNETH L. WAINSTEIN, FORMER ASSISTANT 

ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE 

Mr. WAINSTEIN. Thank you Mr. Chairman. Chairman Nadler, 

Chairman Conyers, Members of the Subcommittee, thank you for 
54 

holding this important hearing and thank you for soliciting our 

views about the PATRIOT Act. My name is Ken Wainstein. I am 

a partner at the law firm of O’Melveny & Myers. But prior to my 

leaving government in January of this year, I served in a variety 

of positions and had the honor to work alongside the fine men and 

women who defend our country day in and day out. I also had the 

honor to participate along with my co-panelists in what has been 

I think a very constructive national discussion over the past 8 

years over the limits of government investigative powers in this 

country’s fight against international terrorism. 

Today, I want to discuss the three provisions of the Foreign Intelligence Surveillance Act that are scheduled to expire at the end 

of this year and explain my position that all three of these authorities are important to our national security and should be reauthorized. The PATRIOT Act was originally passed within 45 days after 

9/11 in response to the tragic attacks of that day. 

In 2005, Congress, to its enduring credit, undertook a lengthy 

process of carefully scrutinizing each and every provision of that 

statute, a process that resulted in the reauthorization act that provided significant new safeguards for many of the original provisions. The authorities in the PATRIOT Act are now woven into the 

fabric of our counterterrorism operations and have now become a 

critical part of our defenses against what President Obama has 

aptly described as al-Qaeda’s quote, far reaching network of violence and hatred. And this is particularly true of the three provisions that are subject to reauthorization this year. 

The first authority I’d like to address is the roving wiretap authority in section 206 which allows agents to maintain continuous 

surveillance of a target as that target moves from one communication device to another, which is standard trade craft for many surveillance conscious terrorists and spies. This is an absolutely critical investigative tool, especially given the proliferation of inexpensive cell phones, calling cards and other innovations that make it 

easy to dodge surveillance by rotating communication devices. 

While law enforcement personnel investigating regular crimes have 

had this authority since 1986, national security agents trying to 

prevent terrorist attacks only received it in 2001. 

While some have raised privacy concerns about this authority, a 

fair review of section 206 shows that Congress incorporated a number of safeguards to ensure its judicious and responsible use. This 

new provision did nothing to affect the touchstone government burden of demonstrating probable cause that a target is a foreign 

power or an agent of a foreign power. 

Second, the statute ensures that the FISA court will closely monitor and receive reports from the government regarding any roving 

surveillance. And finally, the statute specifies that the government 

can use this authority only if the government can show specific 

facts demonstrating that a target is taking action such as switching 

cell phones that thwart the government’s ability to conduct surveillance. Given these requirements, given these safeguards and given 

the clear operational need to surveil terrorists and spies as they rotate their phones and communications devices, there is a very 

strong case for reauthorizing this authority. 
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Section 215 authorizes the FISA court to issue orders for the production of records that law enforcement prosecutors have historically been able to acquire through grand jury subpoenas. Prior to 

the enactment of section 215, our national security personnel were 

hamstrung in their effort to obtain business records because the operative statute at the time required a higher showing of proof and 

limited those orders to only certainly types of businesses. Section 

215 addressed these weaknesses by adopting a regular relevance 

standard for the issuance of the order and expanding the reach of 

the authority to any entity or any business. And like the roving 

wiretap authority, Congress built into this provision a number of 

safeguards that made section 215 orders significantly more protective of civil liberties than the grand jury subpoenas that are issued 

every day around this country by Federal and State prosecutors. 

Unlike grand jury subpoenas that a prosecutor can issue on his or 

own, a 215 order must be approved by a court. Unlike subpoenas, 

section 215 specifically bars issuance of an order if the investigation is focused only on someone’s first amendment activities. 

And unlike grand jury subpoenas, section 215 requires regular 

reporting to Congress and imposes a higher standard for particularly sensitive records like library records. With these safeguards 

in place, there is absolutely no reason to return to the days when 

it was easier for prosecutors to secure records in a simple assault 

prosecution than for national security investigators to obtain 

records to help defend our country against terrorist attacks. 

Lastly, the lone wolf provision. That allows the government to 

conduct surveillance on a non U.S. person who engages in international terrorism without demonstrating his affiliation to a particular international terrorist organization. As Ranking Member 

Sensenbrenner indicated, back in 1978 when this statute was 

passed the contemplated terrorist target was a member of an organization like the Red Brigades. Today our terrorist adversary or 

our main adversary is al-Qaeda which is a network of like minded 

terrorists around the world whose membership shifts and fluctuates with changing alliances. Given this increasing fluidity in the 

organization and membership of our adversaries, there is greater 

likelihood today that we will encounter a foreign terrorist and not 

be able to identify that person’s terrorist organization. 

And to ensure the government can surveil that person, the lone 

wolf provision is absolutely critical to make sure that we can keep 

an eye on that person and prevent that person from undertaking 

a terrorist attack. Although, as was reported, the lone wolf provision has not been used, given the threat posed by foreign terrorists 

regardless of affiliation and the obvious need to keep them under 

surveillance, there is an ample case for maintaining this authority 

for the day when the government may need to use it. Thank you 

again, Mr. Chairman, for the opportunity to discuss the sunsetting 

PATRIOT Act provisions and the reasons for my belief that they 

should all be reauthorized. 

[The prepared statement of Mr. Wainstein follows:] 
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PREPARED STATEMENT OF KENNETH L. WAINSTEIN
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Mr. NADLER. I thank you. And I now recognize Mr. German for 

5 minutes. 
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TESTIMONY OF MICHAEL GERMAN, POLICY COUNSEL, 

AMERICAN CIVIL LIBERTIES UNION 

Mr. GERMAN. Chairman Nadler, Chairman Conyers, Ranking 

Member Sensenbrenner, thank you for the opportunity to testify on 

behalf of the American Civil Liberties Union as Congress revisits 

the USA PATRIOT Act. The PATRIOT Act vastly and unconstitutionally expanded the government’s authority to pry into people’s 

private lives with little or no evidence of wrongdoing, violating the 

fourth amendment protections against unreasonable searches and 

seizures and first amendment protections against free speech and 

association. Worse, it allows this expanded spying to take place in 

secret, with few protections to ensure these powers are not abused, 

and little opportunity for Congress determine whether these authorities are doing anything to make America safer. The three expiring provisions give Congress the opportunity, as the Department 

of Justice’s September 14 letter suggested, to carefully examine 

how these expired authorities, expanded authorities impact American’s privacy. 

We urge Congress to broaden its review to include all post-9/11 

domestic intelligence programs, including the Foreign Intelligence 

Surveillance Act amendments and the new Attorney General guidelines for FBI domestic operations, and rescind, repeal or modify 

any provisions that are unused, ineffective or prone to abuse. When 

several PATRIOT Act provisions came up for renewal in 2005 there 

was little in the public record for Congress to evaluate. Today Congress is not completely in the dark. Inspector general audits ordered in the PATRIOT Act reauthorization revealed significant 

abuse of National Security Letters, and courts have found several 

PATRIOT Act provisions unconstitutional, including NSL gag orders, certain material support provisions, ideological exclusion provisions, and the FISA significant purpose test. 

There is also evidence that the government abused even the 

broadly expanded wire tapping authorities that Congress approved 

under the FISA Amendments Act. Congress needs to address all of 

these provisions and, indeed, this work is beginning. The ACLU 

fully supports both the National Security Letter Reform Act of 

2009, sponsored by Chairman Nadler, and the Justice Act, a comprehensive reform bill introduced by Senators Russ Feingold and 

Richard Durbin last week. They should be acted upon promptly. 

Regarding the expiring provisions, the government’s arguments for 

extending these authorities without amendment are simply 

unpersuasive. Unlike its criminal law counterpart, the John Doe 

roving wire tape provision of the PATRIOT Act authorizes the government to obtain secret FISA court orders to intercept communications without naming the target or making sure the wiretaps 

intercept only the targets communications. The government offers 

no explanation for why the roving wiretap authorities the FBI has 

used successfully in criminal cases since 1986, which better protect 

the rights of innocent persons, are insufficient for national security 

cases. 

This provision should be narrowed to bring it in line with the 

criminal wiretap authorities or be allowed to expire. As for the lone 

wolf provision, which authorizes government agencies to obtain secret surveillance orders against individuals who are not connected 
63 

to international terrorist group or foreign nation, we now know it 

has never been used. The government justified this provision by 

imagining a hypothetical international terrorist who operates independently of any foreign power or terrorist organization, but there 

is little evidence to suggest this imaginary figure exists. This provision is overbroad and unnecessary, and should be allowed to expire. 

The third expiring provision, section 215 or the library records provision is also rarely used. Only 13 section 215 applications were 

made in 2008. But that doesn’t mean there isn’t abuse. The IG reported that in 2006 the FBI twice asked the FISA Court for a section 215 order seeking tangible things as part of a counterterrorism 

case. The Court denied the request both times because ‘‘the facts 

were too thin and the request implicated the target’s first amendment rights.’’ 

Rather than re-evaluating the underlying investigation based on 

the court’s first amendment concerns, the FBI circumvented the 

court’s oversight and pursued the investigation using national security letters that were predicated on the same information contained 

in the section 215 application. This incident reveals the danger of 

looking at these separate authorities piecemeal. Narrowing one authority might simply lead to abuse of another. There have been 

many significant changes to our national security laws over the 

past 8 years, and addressing the excesses of the PATRIOT Act 

without examining the larger surveillance picture may not be 

enough to rein in an abusive intelligence gathering regime. Congress should conduct a comprehensive examination of all the laws, 

regulations and guidelines that prevent government surveillance of 

Americans without suspicion of wrongdoing. 

The American Civil Liberties Union encourages Congress to exercise its oversight powers fully, to restore effective checks on these 

executive branch surveillance powers, and to prohibit unreasonable 

searches and seizures of private information without probable 

cause based on particularized suspicion. Thank you. 

[The prepared statement of Mr. German follows:] 
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PREPARED STATEMENT OF MICHAEL GERMAN
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Mr. NADLER. I thank the witnesses. I will recognize myself to 

begin the questioning for 5 minutes. Mr. German, will you restate 

briefly, you said that section 206, roving wiretaps, had broader authority and less safeguards than the criminal roving wiretaps. And 

what was the specific one you cited? 

Mr. GERMAN. That it doesn’t compel the identification of the person or require the government to determine that the person is actually using the communication device. 

Mr. NADLER. And therefore it can be used pretty widely. Mr. 

Wainstein, why should not the section 206 contain that protection 

or that requirement that’s in the criminal version of the roving 

wiretaps? 

Mr. WAINSTEIN. Well, as to the authorization to issue an order 

based on a description as opposed to the identity of the person, that 

particular issue, that’s just, that’s a recognition of the reality of 

what we’re dealing with when we’re dealing with people, foreign 

spies and terrorists. These are people who we often don’t know the 

name of. 

Mr. NADLER. And you don’t have the same situation in the criminal context? 

Mr. WAINSTEIN. Less frequently. It’s less frequently a problem 

because sometimes we do have people who come in—let’s take it 

outside the context of foreign terrorism, foreign espionage, which 

are crimes, and look at drug trafficking. Yeah. Sometimes there are 

people whose names we don’t know. But in the foreign intelligence 

context, the people who come in here who are spies and operatives 

of foreign intelligence services go to great lengths to hide their 

identities. So we often will not know. But we’ll know darn sure that 

they are a—— 

Mr. NADLER. In other words, you’ll know his appearance but you 

won’t know his name? 

Mr. WAINSTEIN. Well, we’ll have watched him. We’ll have seen 

him with physical surveillance. We might have gotten a pen register and seen that he’s got contacts with other people who are 

known operatives. And keep in mind, we can only get the FISA 

court order if we show sufficient specificity in our description of the 

person to satisfy the court. 

Mr. NADLER. Okay. Mr. German, why would you disagree with 

that? 

Mr. GERMAN. Well, I don’t think there’s been a sufficient showing. I mean, I would love for government to publish how this authority has actually been used and then we can have a debate 

based on the facts. 

Mr. NADLER. Ms. Spaulding, you alluded to the same thing in 

your testimony. Could you comment on this little dialogue here? 

Ms. SPAULDING. Yeah. I am sympathetic with the challenges that 

the government might face in knowing the name of the target of 

the surveillance. I think then that it is very important that the 

statute explicitly require that this target be identified with sufficient specificity to eliminate or significantly reduce the risk that 

the wrong person is going to be targeted. And the risk is enhanced 

when you come to a roving wiretap where you’re changing facilities 

and instruments that you’re tapping. So to require great specificity 

in the description of the target, and also a showing by the govern-
100 

ment that there are reasonable grounds to believe that that particular individual is going to be proximate to and using that instruments, becomes very important. 

Mr. NADLER. And the great specificity would be the same as or 

similar to what we have in the criminal code? 

Ms. SPAULDING. It would be similar to. But, again, I’m comfortable with having the government not knowing the name of the 

target if they are able to describe that individual with sufficient 

specificity. 

Mr. NADLER. Thank you. Now, Ms. Spaulding, you noted in your 

written statement that Congress should consider requiring the government to set forth in the initial application the grounds upon 

which it believes the disclosure of a section 215 order would be 

harmful. Why do you believe that this consideration is important? 

And when you answer the question, talk also about the NSL, with 

a similar question. 

Mr. EVANS. Can you ask that question again? I don’t have a 

hearing aid with me. 

Mr. NADLER. I’m sorry. I said I asked—Ms. Spaulding had said 

in her testimony that it is important that we should consider requiring the government to set forth in the initial application the 

grounds upon which it believes the disclosure of a section 215 order 

would be harmful; in other words, why do we need the gag order? 

I am asking Ms. Spaulding, why do you believe that this consideration is important. And when you answer the question, comment 

on the NSL context as well as the section 215 context, please. 

Ms. SPAULDING. Thank you, Mr. Chairman. I think it’s important 

for a number of reasons. And it is particularly relevant in the section 215 and NSL letters when they are delivered to third party 

record holders, when it’s delivered to a business asking for the 

records of a third party, of another individual, because they really 

have very little incentive to challenge the gag order, to challenge 

the underlying order itself or to challenge the gag order. It is not 

in their best interest to have it publicized that they are handing 

over to the government customer information. And so putting the 

burden on the recipient of the order to challenge that requirement 

not to disclose really dramatically reduces the likelihood that it’s 

going to be challenged and, in fact, with regard to challenging underlying orders, the Department of Justice letter acknowledges that 

no recipient, no business recipient of a 215 request has ever challenged the order, which I think is pretty compelling evidence—— 

Mr. NADLER. So the whole debate that we had last time during 

the reauthorization of the grounds for challenge might be a little 

irrelevant? 

Ms. SPAULDING. And the Second Circuit recently ruled in the 

context of national security letters that, in fact, putting the burden 

on the recipient as opposed to on the government raises some real 

serious constitutional issues. 

Mr. NADLER. Thank you. I just have one more question. Mr. German, the 2008 IG report on the FBI’s use of section 215 orders 

noted that the FBI issued national security letters, and the Chairman alluded to this, after the FISA court denied requests for section 215 orders to get the same information. The FISA court said 

this implicates first amendment concerns. You can’t get the order 
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so they just went and issued NSLs to themselves. The Court based 

its denial on first amendment concerns. 

In your opinion, as a former FBI agent, do you believe the FBI 

is using NSLs to evade the requirements of section 215 orders, especially given the relative low number of section 215 orders that 

are issued in contrast to the very large number of NSLs; and if so, 

what should we do about this problem? 

Mr. GERMAN. I don’t know if I can say in the context of my experience as a FBI agent because I didn’t work with that—— 

Mr. NADLER. In the context of all your experience. 

Mr. GERMAN. But certainly, the facts that were related in that 

Inspector General report reflected that there was a great concern 

about the first amendment violations that were occurring in this 

request for documents. So the fact that the FBI continued and ignored the Court’s advice, I think, does show abuse and, you know, 

clearly the report details considerable abuse of national security 

letters. 

Mr. NADLER. But that also would show, would it not, that if the 

FISA court refused to grant a 215 order because it said the facts 

implicated first amendment concerns that should prohibit it, the 

NSLs should also not have been issued because of the same first 

amendment concerns, but that there was no check on the power of 

the FBI to make sure of that. 

Mr. GERMAN. Exactly right, that there was no outside check allowed the abuse to happen. 

Mr. NADLER. My last question. Mr. Wainstein, how should we fix 

that? In other words, how do we ensure that FBI or the Justice Department, which doesn’t have to go to court to get an NSL order, 

that the proper safeguards are there so that you can’t implicate the 

first amendment the way the Court said you couldn’t do it in the 

215? 

Mr. WAINSTEIN. Well, I think you’d have to take a sort of broader 

view of it first. This is not the only administrative subpoena authority out there. There are 300 some administrative subpoena authorities on the criminal side used every day every minute of every 

day around this country by Federal authorities, and they have different requirements but essentially the same idea, that they’re 

issued directly by the Agency to people who possess third party 

records. 

So this is not an anomaly here. The NSLs are not an anomaly. 

They’re actually a tried and true part of the tool kit that law enforcement and intel have used for years. Secondly, keep in mind 

this is one incident that was highlighted by this IG report that otherwise—there was one other, but this is the one that sort of got the 

most attention, that looked at, you know, a lot of activity and they 

found this one concern. I don’t believe that this is symptomatic of 

a broader problem that the FBI is going out to try to subvert the 

first amendment. 

Keep in mind, these are different investigative authorities. 215 

has a different standard it has to meet. The FISA court found that 

the information was thin and didn’t want to issue the order and 

said that they thought it might—I can’t remember the language 

but the investigation might be based on first amendment activities. 

I’m quite confident that the general counsel’s office did not just 
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lightly blow off the FISA court opinion; that they did go back and 

look at this and decide that under the different standards for NSLs 

that it was appropriate. 

Mr. NADLER. Thank you. My time is well expired. I will now recognize the gentleman from Wisconsin. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. I’m 

very curious at the fact that most of the discussion of the questions 

and answers has been on national security letters. And I want to 

make it clear, again, that national security letter authority was not 

one of the expanded authorities given to law enforcement by the 

PATRIOT Act. The national security letter law was passed in 1986, 

15 years before the PATRIOT Act, under legislation sponsored by 

Senator Leahy of Vermont. And much of the adverse legal decisions 

on this entire issue have been relative to the Leahy national security letter law, rather than the Sensenbrenner PATRIOT Act. 

And I do take a little bit of a pride of authorship in the fact that 

with the Sensenbrenner PATRIOT Act, 15 of the 17 expanded law 

enforcement provisions either went unchallenged as to their constitutionality in almost 8 years, or in one case, there was a constitutional challenge that was withdrawn. The two sections of the 

PATRIOT Act that were held unconstitutional in the Mayfield case 

by the District Court of Oregon, which is currently on appeal, involved whether FISA orders violated fourth amendment. And there 

is a string of cases from other courts that have reached the opposite conclusion that FISA orders do not violate the fourth amendment. 

And I think the Supreme Court is going to end up deciding that 

issue definitively when the case gets up there. So all of this hyperbole that the PATRIOT Act has been a blatantly unconstitutional 

enactment of Congress that tramples on civil rights is simply not 

born out by the litigation that has occurred in the almost 8 years 

that the PATRIOT Act has been law. And I really would admonish 

people, both in this room and out of this room, to look at the fact 

that 15 of those 17 expanded authorities of law enforcement, nobody has bothered to challenge. 

Now, if it isn’t unconstitutional, and it’s working, then really, I 

don’t think that we should break something that doesn’t need fixing. And I’m afraid that that’s where we’re at. So I would like to, 

at this time, ask unanimous consent to include in the record a 

lengthy letter from Robert F. Turner, Associate Director of the Center for National Security Law at the University of Virginia law 

school that talks about the three expiring provisions of the PATRIOT Act, which is what we ought to be talking about here, none 

of which have been even challenged. 

Mr. NADLER. Without objection. 

Mr. SENSENBRENNER. I yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. I now recognize the distinguished Chairman of the full Committee, the gentleman from 

Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. I want to commend all 

of our witnesses here today, including Mr. Wainstein, who’s been 

very forthcoming. And I want to commend former Chairman Sensenbrenner too. He mentioned the Sensenbrenner PATRIOT Act. 
103 

Of course, I mentioned the Sensenbrenner/Conyers PATRIOT Act 

that got doused in the Rules Committee. 

That was a very mysterious activity in which nobody ever found 

out—there were no fingerprints on the new bill, that the Sensenbrenner PATRIOT Act, which I suppose Mr. Sensenbrenner wrote 

that night and got it up there, because nobody ever saw it in the 

Judiciary Committee. But it’s one of those mysteries in the legislative process that have not been fully examined. And maybe some 

day we’ll get a Judiciary Committee Chairman or maybe even a 

constitutional Subcommittee Chairman that will step up to the 

plate and find out how a several hundred page bill could be substituted for another in the middle of the night. 

The Rules Committee was meeting after midnight when this was 

acted upon. And I only digress to show you that there’s been bipartisanship on the Judiciary Committee. There are very few important bills in which every Republican and every Democrat votes in 

its favor, and that’s what happened to the Sensenbrenner/Conyers. 

But then whatever else happened to it is one of those problems 

that need further investigation. Now, the witnesses have raised, I 

think I stopped counting at about 11, there are a number of small 

problems that need to be cleared up about reissuing the three provisions that have an expiration date. 

Now, I set that aside from the reconsideration of the rest of the 

PATRIOT Act that doesn’t have any expiration date. And I’m sure 

our Chairman is going to be—has got a fix or a feel for that. I will 

yield to him if he wants to tell me what it is. But I go along with 

him. 

Mr. NADLER. Well, we’re going to be looking at all the sections 

of the PATRIOT Act as we look at this. We’re going to use the opportunity provided by the expiration of these three sections to look 

at all the other sections as well as section 505 which is the national 

security letter, which although as Mr. Sensenbrenner said, did predate the PATRIOT Act, was considerably amended by the PATRIOT Act. 

Mr. CONYERS. Could I ask the witnesses what further, after having heard each others’ testimony here, what else would you add to 

any of each others’ comments or what would you want this Committee to know about everything—here is our former colleague 

heading a bipartisan committee. Here is probably the most experienced lawyer on the intelligence law before the Committee. We 

have the American Civil Liberties Union, which has participated in 

more privacy cases, civil liberties cases, civil rights cases than anybody else. And also a distinguished member of the Bar who has 

some very profound experience himself. What do each of you think 

about—I don’t want to put it this way—each others’ testimony? 

Mr. EVANS. I think it’s a great thing to have this oversight responsibility that you’ve accepted on this Committee. And I would 

like to make one point, and that is the challenges, the limited number of challenges to the various provisions. It would take, if you’re 

an innocent person, it would take a very courageous man or woman 

to make that challenge because of the image that’s created. And so 

I think that’s the reason there have not been more challenges. 

Mr. CONYERS. Also, the bill they’d get from their lawyers too 

would be another preventive, would dissuade a lot of people. You 
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know, taking on the United States government is not something 

that you can walk into any law office and say, well, I think they’re 

totally wrong here. I’m innocent. Or at least—and I want to handle 

that, and I can tell you what the average law firm would say. And 

I want to have Mr. Wainstein comment on that. They would say, 

do you have about $150,000 to continue this conversation? What 

about it Wainstein? You’re a partner, full fledged. 

Mr. WAINSTEIN. We’re just looking for a righteous case, sir. 

That’s all. Give us a righteous case. That’s all we want. 

Mr. CONYERS. Well, I know your law firm is good on pro bono 

work. But when you get one of these walking into the office and 

you decide to take it, without consideration of the legal cost that 

may be incurred, it’s a pretty heavy duty. Mr. German? 

Mr. GERMAN. You know, as I mentioned in my testimony, one of 

the problems with these authorities is that they are exercised in secret. And I think having more facts in the debate would be very 

helpful to everybody, especially members of the public in trying to 

understand the arguments on both sides. And I commend the Department of Justice for their letter where they actually revealed 

the number of times these authorities were use. But I think how 

they are used and when they are used is also very important. And 

you know, obviously there is a need to protect some national security interests. But I think the excessive secrecy is really harming 

the public debate on this issue. 

Mr. NADLER. I thank the gentleman. The gentleman from Iowa 

is recognized. 

Mr. KING. Mr. Chairman, I thank the witnesses. This has been 

interesting testimony, interesting dialogue. And I was unaware of 

the Sensenbrenner/Conyers bill until I heard the testimony here. 

And I would trust that that came out of a very serious effort to try 

to provide safety and security for the American people in the immediate aftermath of September 11. And I listened to the Chairman’s 

lament that that bill didn’t arrive to the floor in the same condition 

that it left his oversight. I understand the sentiment, Mr. Chairman. 

Mr. CONYERS. Would the gentleman, distinguished gentleman 

from Iowa yield? 

Mr. KING. Of course I’d yield to the Chairman. 

Mr. CONYERS. This was before your time, sir. You weren’t even 

here. 

Mr. KING. And that would be why I don’t remember it. 

Mr. CONYERS. Well, apparently. 

Mr. KING. Thank you, Mr. Chairman. Now I don’t feel so badly 

for not being completely tuned in to the history. It, however, did 

trigger my memory of how the bankruptcy cram down bill came out 

of the Committee with the King amendment and didn’t arrive at 

the floor with the King amendment on it. So I thought it would be 

useful to bring the subject up so we could both be refreshed on the 

history of this Judiciary Committee, Mr. Chairman. 

Mr. NADLER. Will the gentleman yield? 

Mr. KING. I’d yield. 

Mr. NADLER. I’d point out that whatever the merits of that situation, that was one amendment. We held in this Committee, I think, 

5 days of markup on the PATRIOT Act and achieved unanimity, 
105 

with many amendments from both sides of the aisle being approved, not on party line votes. We achieved a unanimous vote. 

And then the bill just disappeared, completely disappeared, and we 

had a new, several 100-page bill. The PATRIOT Act we have today 

was a new, several 100-page bill that appeared fresh from the head 

of Zeus or the Rules Committee, and voted on literally the next 

day, hot from the printer that nobody had a chance to read. That 

was unfortunate. 

Mr. KING. Reclaiming my time, and perhaps even resetting the 

clock, I would wonder if maybe the Chairman of the Subcommittee 

and the full Committee might wish to join me in my endeavor to 

move the Rules Committee to the floor of the full House, because 

the business of this Congress takes place up there in the hole in 

the wall rather than in front of the light of the public eye. Anybody 

care to respond to that while we are having this dialogue? 

Mr. NADLER. I will simply respond by saying I am not sure what 

you mean by move the Rules Committee to the floor of the House, 

and it is not before this Committee anyway, but we should certainly discuss it, whatever it is. 

Mr. KING. I appreciate that response. And maybe we could just 

move the light of day up to the hole in the wall. And now I will 

turn my attention to the panel who is here to testify and enlighten 

all of us, and by the way, everybody that is watching these proceedings. And I am curious, as we look back on the history, and 

I would direct my first question to Mr. German, I am curious about 

the position of the ACLU during that period of history in the immediate aftermath of September 11, as the bill that was crafted in 

this Committee and the long markup that was had and the one 

that came to the floor, did you have a position on the overall base 

bill, on the amendments, and a position on the bill as it came to 

the floor for a vote in support or opposition, Mr. German? 

Mr. GERMAN. And I also wasn’t at the ACLU then, I was in the 

FBI then. So my recollection maybe isn’t perfect. But I understand 

that they did offer statements that are in the record urging that 

there be caution and moderation in responding, and trying to discover the facts before legislating. 

Mr. KING. But perhaps not in opposition to the PATRIOT Act as 

it came to the floor for final passage? 

Mr. NADLER. Would the gentleman yield? 

Mr. KING. I would yield. 

Mr. NADLER. I don’t remember what the ACLU said about the 

bill that came out of this Committee, but they were most certainly 

in opposition to the bill on the floor. 

Mr. KING. On the floor. 

Mr. NADLER. Yes. 

Mr. KING. Thank you. I appreciate that clarification. Those little 

tumblers of analyzing history are helpful to me. And the discussion 

that we have on the reauthorization of these three particular sections of the PATRIOT Act that I would ask Mr. German, have you 

or your organization been involved in drafting alternative legislation that you have put together that is useful for this Committee 

to be aware of? 

Mr. GERMAN. Have we been involved in—we have been offering 

suggestions, yes. 
106 

Mr. KING. Conceptually or specific language? 

Mr. GERMAN. I am sure over time specific language often. 

Mr. KING. Well, thanks for that clarification, too. That is not a 

zone that I work in very much. I didn’t have a feel for that. Do you 

have examples of individuals whose constitutional rights have 

been, you believe, violated under any of the three sections that we 

are considering reauthorizing? 

Mr. GERMAN. No, because we don’t know who they have been 

used against. 

Mr. KING. And even though some of them are bound to confidentiality, doesn’t it happen, from time to time, that people will breach 

that confidentiality if they believe that their constitutional rights 

have been breached? 

Mr. GERMAN. I am not sure they would know that these—the 

FISA authorities usually don’t alert the target of their surveillance. 

Mr. KING. Let me submit that we have had as a subject of the 

various Subcommittees of this Judiciary Committee subjects who 

were before us anonymously because of certain allegations that 

were made about their history. And I am going to keep them anonymous, so I won’t define them any further. And it would strike me 

that if there were some significant constitutional violations that it 

would take individuals to bring those kind of cases, we could go beyond the hypothetical and then just simply deal with a defined personality, whether it be an individual or not. Why don’t I hear about 

that? Why don’t I hear about even a hypothetical individual beyond 

the generalities that we have discussed here? Why isn’t it more 

specific if there are constitutional rights that are at play here? 

Mr. GERMAN. Well, any use of an unconstitutional authority is an 

abuse. It is unconstitutional. 

Mr. KING. But a person has to have standing. 

Mr. GERMAN. Because the person doesn’t know. And nobody in 

the public knows. Only the government knows who these authorities are being used against. 

Mr. KING. Then how, if no one knows, aren’t we back to if a tree 

falls in the forest? 

Mr. GERMAN. Well, when it revolves around the constitutional 

rights of Americans. I think we have to make sure that we are protecting those rights. And that is the obligation, is to protect the 

Constitution and the rights of Americans. 

Mr. KING. One of those obligations—— 

Mr. NADLER. Would the gentleman yield for a second? 

Mr. KING. I would yield. 

Mr. NADLER. Just to clarify, I think what is being said is that 

if you are being wiretapped unconstitutionally, without any proper 

evidence, et cetera, you won’t know about that, and therefore you 

can’t bring the case. And it may be that nobody knows about it, but 

still your rights are being violated. 

Mr. KING. And I understand that explanation. I just don’t quite 

accept how, if constitutional rights have been violated and no one 

knows it, if there has actually been an effect of a violation if it 

can’t be identified. And I will take you off this hypothetical path, 

and I would turn then to Mr. Wainstein. Are you aware of any individuals whose rights have been violated? And are you aware of 

cases that have been resolved and American people that have been 
107 

protected because of the utilization of the PATRIOT Act? And I will 

just leave that there and open the question to your response. 

Mr. WAINSTEIN. Well, sure, the PATRIOT Act has been tremendously helpful, and Director Mueller has testified on countless occasions how it has really—— 

Mr. KING. And within these three sections, if you could. 

Mr. WAINSTEIN. Within these three sections I know that it has 

been used, I watched it—two of the three sections, one has not 

been used but two of the provisions, I watched them get used, 

watched how the information was then integrated into the investigation, how important it was. And without getting into specifics, 

I mean, you can see just the roving wiretap, you can see how critical that is. Because nowadays, you know, you can get cell phones 

for pennies almost, throw them away, and start a new one an hour 

later. And if the government has to go back to the FISA court with 

a 70-page document every time someone throws away a cell phone, 

they are going to be stymied in their ability to surveil somebody. 

So that just on its face it is clear how critical that is both in criminal investigations as well as—— 

Mr. KING. But isn’t there a constitutional distinction between a 

roving wiretap and the previous FISA law that was designed for 

land lines? A constitutional distinction? 

Mr. WAINSTEIN. Well, there is constitutional debate over whether 

that is constitutional, but the courts that have looked at the roving 

wiretap authority in the criminal context have found it constitutional. 

Mr. KING. That is my point next. I thank the gentleman and the 

witnesses and appreciate the dialogue, Mr. Chairman. I yield back. 

Mr. NADLER. Thank you. The gentleman from Georgia is recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. If the appropriate 

Committee were to look at the proceedings of the Rules Committee 

and decide to require that those Committee meetings be held on 

the floor of the House, as has been suggested, I believe the number 

one, smoking gun piece of evidence would be the Sensenbrenner 

PATRIOT Act bill, the 700-page one. That is an intriguing issue as 

to how that occurred. That is one of the big mysteries of our time. 

Kind of like the beginning of the earth and how big is the solar system, or are there any other solar systems, you know, those kinds 

of things. But let me ask this question. With respect to section 215, 

wherein the FISA order can also require or contain a gag order, 

how long does the gag order last? Is there any limits on how long 

it lasts or the scope of the gag order? 

Mr. WAINSTEIN. Sir, I am not sure if that question is to me, 

but—— 

Mr. JOHNSON. Sure. 

Mr. WAINSTEIN.—I will take a crack at it. There is a nondisclosure order that comes along with a 215 order, similar to the NSL 

context. And it does say that the person who receives that order 

is not to disclose it to anybody else. But then there are exceptions. 

You are allowed to disclose the fact of the order to your attorney 

if you are seeking counsel from a lawyer. You are allowed to disclose to somebody, you know, if you are a bank and you need to 

go to a clerk to try get assistance to get records the government 
108 

wants, you can disclose the fact of the order to that person. But 

then you are allowed to challenge it. There is also a process that 

was put in place and was carefully crafted in the context of the 

FISA reauthorization—I am sorry, PATRIOT Act reauthorization 

back in 2005, 2006, Congress put in place an elaborate mechanism 

for challenging not only the validity of the order itself as to whether the 215 order is oppressive or otherwise unlawful—— 

Mr. JOHNSON. Let me stop you here. And I appreciate those answers. Does the Act itself put any limitations on the length of time 

that the gag order would be in effect? Assuming there would be no 

challenge by the third party to it? 

Mr. WAINSTEIN. A recipient can challenge it after a year. So after 

it is in place for a year a person who has received the order—— 

Mr. JOHNSON. If he or she or it does not challenge it, then it just 

goes on for year after year after year? 

Mr. WAINSTEIN. You know, I believe that is the case. I am not 

aware of it expiring at any time. 

Mr. JOHNSON. And what happens if a FISA order is not responded to by the third party, a third party from whom tangible 

evidence, if you will, tangible things has been requested from? Suppose they just turn their nose up—suppose it was, let’s say, the 

ACLU and, you know, the ACLU receives a FISA order. So first of 

all, they would be on the hook if they did not challenge it for an 

indefinite time. And secondly, what would happen if they decided 

to not respond or refused to turn over some information based on, 

say, a privilege? What would happen there? 

Mr. EVANS. That is why our Liberty and Security Committee, 

that is a bipartisan group—by the way all of us act on a pro bono 

basis, and I do everything on a pro bono basis, but we believe that 

there should be some reasonable limitation, like 30 days, so that 

you could then go out publicly and talk about it. But I go back to 

what the Chairman had initially said and what I had added, you 

know, you got to have awful deep pockets these days to bring challenges. 

Mr. JOHNSON. Suppose there is a non-deep pocketed third party 

from whom tangible documentation has been ordered under a FISA 

order, and that third party decides to violate the gag order? What 

happens in that kind of scenario? 

Mr. EVANS. I would refer to the former Assistant Attorney General. 

Mr. WAINSTEIN. These orders can be enforced. They are orders of 

the Court. So if you defy the order—— 

Mr. JOHNSON. Would they be enforced in the secret FISA court? 

Mr. WAINSTEIN. For the 215 orders, yes. In the NSL context or 

grand jury subpoena context, it would be a regular district court. 

That is my understanding. 

Mr. JOHNSON. So it is possible a person can be locked up secretly 

for violating the FISA order. It can be an indefinite detention, if 

you will. 

Mr. WAINSTEIN. You know, I am not sure about that, sir. The 

FISA statute, as amended by the PATRIOT Act reauthorization, 

lays out a process by which you can challenge, you as a recipient 

can challenge that FISA court order. You go to court and you challenge it and say I don’t think I should have to turn these being doc-
109 

uments over, and here are the reasons. And if it is, as you said, 

a privilege, and it is a legitimate privilege, then the court would 

I think say okay, fine, you have got a privilege and craft a resolution. But if you do not have a basis for challenging the subpoena 

or the 215 order other than the fact that you just don’t want to 

turn the documents over, it is a legitimate court order and the 

court has the authority to enforce it, just as with—— 

Mr. JOHNSON. Can you appeal that FISA order ruling by the 

FISA court? 

Mr. WAINSTEIN. Yes. You can appeal FISA court rulings to the 

FISA Court of Review. 

Mr. JOHNSON. Who would it be appealed to? 

Mr. WAINSTEIN. It is a court, an appellate court that issues opinions. It is I think three judges sit, I believe, on each hearing. And 

I think it has only issued two opinions, right? But it would be appealed to them. So you do have the full process. 

Mr. JOHNSON. Thank you, sir. And thank you, Mr. Chairman. 

Mr. NADLER. Thank you. And finally, the gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. And I appreciate the 

panelists and your input. It is a tough issue. And it was back apparently when it first passed as a bill. And then 5 years ago when 

we took it up, I was one of the, I guess, couple of people on the 

day that we passed out of Committee on the Republican side that 

was adamant about the need for sunsets so we would have people 

come in and talk to us about how these powers had been used. The 

one provision regarding cell phones, and you make great points, 

how do you use conventional methods when we have throwaway 

cell phones? 

Those were never anticipated in the original methods of pursuing 

the bad guys. And in looking at the September 21 story about, the 

headline here is Terror Probe Prompts Mass Transit Warning, but 

I see the word cell phones mentioned a number of times in the 

story. Do we know if any of the powers granted under the PATRIOT Act were utilized in bringing to light this alleged terror 

plot? Anybody know? 

Mr. WAINSTEIN. I don’t believe there has been a reference in the 

press to any specific tools. 

Mr. GOHMERT. That were used. 

Mr. WAINSTEIN. Not that I have seen. 

Mr. GOHMERT. Okay. 

Ms. SPAULDING. And in fact, the earlier witness, Mr. Hinnen 

from the Justice Department, was careful with his words not to 

suggest whether they were or were not. 

Mr. GOHMERT. Okay. I will wait to read how we did that in The 

New York Times. I am wondering, in the last year there was information that came out about a wiretap conversation with one of our 

Members, Jane Harman. Was that wiretapped under this provision 

of the PATRIOT Act? Does anybody know? I am just curious. Apparently I take it by your silence nobody knows. I see the need 

there, and it being critical to proper law enforcement. And it was 

apparently such an important tool to us not being attacked again 

during the Bush administration. But coming forward to the NSLs, 

you know, in the PATRIOT Act, the power was expanded to allow 

field offices to make NSL requests as opposed to the FBI head-
110 

quarters. I think at the time the PATRIOT Act passed, most of us 

here on this Committee were not aware of just how profound the 

effect of Director Mueller’s 5-year up or out policy would be and 

had been that we have lost thousands of years of experience because of that. Policy basically being if you are in charge, in a supervisory position for 5 years in the field, then you have to either 

move to headquarters here in Washington or take a demotion or 

get out. 

So 5-year up or out. So I am wondering, in view of Director 

Mueller’s policy, having lost thousands and thousands of years of 

experience, and recalling Director Mueller saying after the vast 

abuses of the NSLs came to light saying that he took responsibility 

for not having the experience and training in the field to properly 

monitor those NSLs, if maybe we should pull back the NSL authority to the FBI headquarters, where the Director has pulled so much 

of the remaining experience. 

I just know that when this passed, that was not really an issue 

on the radar screen. But it does seem to make sense that that 

could be a reason there were so many abuses reported by the inspector general. You just didn’t have the experience. You know, 

some office is going from 25 years experience in charge to six, good 

people all, but experience does make a difference. So I would be interested in comments from our panelists on that issue, as to whether that might be something we need to look at as far as pulling the 

power back to FBI headquarters. I would really like to hear from 

everybody, if you have got a comment. 

Ms. SPAULDING. Congressman, I think that is a very interesting 

suggestion. And clearly, since the inspector general came out with 

its report, the FBI has tightened its procedures and has taken 

steps to try to ensure that they reduce the number of mistaken 

uses and abuses of national security letters. But I think—— 

Mr. GOHMERT. I think I recall the Director saying we wouldn’t 

find any evidence in the rest of the offices of that kind of abuse. 

Ms. SPAULDING. Another possibility that you might consider is 

enhancing the role of the National Security Division at the Department of Justice in terms of oversight and managing the national 

security letter process. 

Mr. EVANS. I think it is a very important issue that should quite 

appropriately be addressed. 

Mr. WAINSTEIN. If I can, Congressman Gohmert, I don’t know the 

quote you referenced just now about how Director Mueller said you 

would not find those abuses in any field offices. 

Mr. GOHMERT. After it came to light, he said they had done a full 

audit of all the other offices that the IG had not had a chance to 

inspect, and we wouldn’t find abuses like that again. 

Mr. WAINSTEIN. They did do a full audit. And actually, I was in 

the National Security Division at the time, and it was a huge deployment of people. They went out and audited all the field offices. 

And they found the incidence of mistakes which was basically consistent with the incidence level that Glenn Fine had found, the IG 

report had found. 

Mr. GOHMERT. Right. 

Mr. WAINSTEIN. But I think what he might have been referring 

to, I am guessing here, but the exigent letters, which were sort of 
111 

the more abusive aspect of it. He might have been saying that was 

probably not something that migrated out to the field offices, because that was, I believe, primarily in headquarters. That might 

have been what he was talking about. The mistakes, though, were 

found in the field offices as well. My concern about your suggestion 

that maybe we pull the NSL authorizing authority back to FBI 

headquarters is that it would reduce—really it would add cumbersome bureaucratic requirements to getting an NSL out. And in 

the course of a fast moving threat investigation, you need to be 

able to get records quickly. And just the extra time and complication of having to go to FBI headquarters to get their approval 

would slow things down and could, you know, in the wrong situation be the difference between catching a terrorist and not catching 

a terrorist. 

I believe that the sort of better way of doing it is, as Suzanne 

said, make sure that you have the necessary systems in place and 

the oversight. I think you heard from Mr. Hinnen earlier, and as 

Ms. Spaulding said, you know, since the Glenn Fine report, a lot 

of procedures have been put in place both in the FBI as well as in 

the National Security Division to make sure those kind of problems 

don’t arise again. And it is sort of interesting, as a side line, you 

look at let’s say the SEC right now in the aftermath of what happened last fall and the questions about how they should change 

their operations. What is one of the first things that has come to 

the fore is suggestions to delegate the authority to take certain investigative steps lower down, to make the investigators more nimble, to be able to build cases more quickly. Same kind of thing that 

we saw in the FBI. And that is the natural reaction when you have 

an overly complicated system in place. 

Mr. GOHMERT. All right. An example of the SEC, is that how 

Goldman Sachs was able to have their biggest profit in the second 

quarter, and someone supposedly overseeing that is also on their 

board, but our Treasury Secretary gave him a waiver, I believe, of 

that conflict? 

Mr. NADLER. The gentleman, I think that is a little afield. The 

gentleman’s time has expired. 

Mr. GOHMERT. Could I have the last panelist comment on that? 

Mr. NADLER. Mr. German, you can respond briefly. 

Mr. GERMAN. Thank you. I agree that stronger internal oversight 

mechanisms are very important. But I would also argue that outside oversight is critical. And the strongest internal oversight 

mechanisms aren’t going to be as effective as outside oversight. 

Mr. GOHMERT. By outside what do you mean? 

Mr. GERMAN. By this body, where it is applicable by the courts, 

whether that is the FISA court or the criminal courts. But also, I 

think the problem with the national security letters is that the 

scope was so broad, that that allowed the records of innocent people to be collected, and that was perfectly legal. And that is really 

where I believe the abuse—— 

Mr. GOHMERT. With the Chairman’s indulgence, do you have a 

recommendation for how that broad scope could be tightened up? 

Mr. GERMAN. Sure. To bring it back into the pre-PATRIOT Act 

authority where you are using it against a suspected agent of a foreign power or a member of a terrorist group rather than just 
112 

against, as the IG found, people two and three times removed from 

the subject of the investigation. 

Mr. NADLER. And that would be by restoring the language of particularity? 

Mr. GERMAN. Right. 

Mr. GOHMERT. Okay. Thank you. 

Mr. NADLER. I thank you. I thank all the witnesses. 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. Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion in the record. Again, I thank the 

witnesses. And with that, this hearing is adjourned. 

[Whereupon, at 1:35 p.m., the Subcommittee was adjourned.] 
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