[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 26 AND APRIL 28, 2005
__________
Serial No. 109-17
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
20-875 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel on Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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HEARING DATES
Page
Tuesday, April 26, 2005first date deg.
Part I......................................................... 1
Thursday, April 28, 2005second date deg.
Part II........................................................ 39
OPENING STATEMENT
April 26, 2005first date deg.
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
April 28, 2005second date deg.
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 39
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 40
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 41
WITNESSES
April 26, 2005first date deg.
The Honorable Mary Beth Buchanan, United States Attorney, Western
District of Pennsylvania, U.S. Department of Justice
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. James A. Baker, Counsel for Intelligence Policy, U.S.
Department of Justice
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Ms. Suzanne Spaulding, Managing Director, The Harbour Group, LLC
Oral Testimony................................................. 19
Prepared Statement............................................. 20
April 28, 2005second date deg.
Mr. Kenneth L. Wainstein, interim U.S. Attorney, District of
Columbia
Oral Testimony................................................. 43
Prepared Statement............................................. 46
Mr. James A. Baker, Counsel for Intelligence Policy, U.S.
Department of Justice
Oral Testimony................................................. 55
Prepared Statement............................................. 57
Mr. Robert S. Khuzami, former Assistant U.S. Attorney, Southern
District of New York
Oral Testimony................................................. 61
Prepared Statement............................................. 63
Mr. Gregory T. Nojeim, Associate Director/Chief Legislative
Counsel, American Civil Liberties Union
Oral Testimony................................................. 67
Prepared Statement............................................. 69
APPENDIX
Material Submitted for the Hearing Record
April 26, 2005first date deg.
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 109
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 109
Letter from Jamie E. Brown, Acting Assistant Attorney General,
U.S. Department of Justice, dated April 30, 2003, to the
Honorable Orrin Hatch, Chairman, Committee on the Judiciary,
United States Senate........................................... 111
Letter from Jamie E. Brown, Acting Assistant Attorney General,
U.S. Department of Justice, dated March 5, 2003, to the
Honorable Orrin Hatch, Chairman, Committee on the Judiciary,
United States Senate........................................... 120
Letter from Daniel J. Bryant, Assistant Attorney General, U.S.
Department of Justice, dated July 31, 2002, to the Honorable
Bob Graham, Chairman, Select Committee on Intelligence, United
States Senate, and the Honorable Richard C. Shelby, Vice-
Chairman, Select Committee on Intelligence, United States
Senate......................................................... 121
April 28, 2005second date deg.
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 126
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 126
Redacted document ACLU received in response to a request under
the Freedom of Information Act to disclose activity related to
Transactional Records National Security Letters issued since
October 26, 2001............................................... 128
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to the Honorable Richard B. Cheney,
President of the Senate, United States Senate.................. 134
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to L. Ralph Mecham, Director,
Administrative Office of the United States Courts.............. 136
Form National Security letter from the U.S. Department of Justice 138
Illustrations to show the implications of the PATRIOT Act and Doe
v. Ashcroft on Section 2709 of the Electronic Privacy Act...... 140
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
Part I
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TUESDAY, APRIL 26, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in Room
2141, Rayburn House Office Building, the Honorable Howard Coble
(Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. This week
the Subcommittee on Crime, Terrorism, and Homeland Security
will continue to review its review of the USA PATRIOT Act by
conducting three hearings.
These hearings will examine the provisions that affected
the Foreign Intelligence Surveillance Act of 1978, popularly
known as FISA. Today we will hear testimony on sections 204,
207, 214, and 225 of the PATRIOT Act.
Additionally, we have asked the witnesses to address
sections 6001 and 6002 of the Intelligence Reform and Terrorism
Prevention Act of 2001, which amended FISA. These sections are
similarly set to expire on December 31 of this year.
The witnesses will discuss each provision in depth. With
that in mind I will keep my comments brief and just mention the
history of the Foreign Intelligence Surveillance Act of 1978.
The Congress enacted the first Federal wiretap statute to
prevent disclosures of Government secrets during World War I.
Today, except under limited circumstances, it is unlawful to
intercept oral, wire and electronic communications, access
stored electronic communications, or use a pen register or trap
and trace device.
It is furthermore unlawful to abuse electronic surveillance
authority under the FISA. Today the U.S. Courts tend to use a
two-pronged expectation of privacy analysis to determine
whether the fourth amendment has, in fact, been violated.
This language is from Justice Harlan's concurrence in
Silverman v. United States, in which he stated, and I quote, my
understanding of the rule that has emerged from prior decisions
is that there is a twofold requirement, first, that a person
have exhibited an actual or subjective expectation of privacy,
and second, that the expectation be one that society is
prepared to recognize as reasonable, close quote.
Consistent with the fourth amendment, the Congress created
statutory procedures to allow limited law enforcement access to
private communications and communication records. Today under
title III of the Omnibus Crime Control and Safe Streets Act of
1968, it is a Federal crime to intercept wire, oral, or
electronic communications of another without court approval,
unless one of the parties consents.
It is also a Federal crime to disclose any information
illegally obtained. The Crime Control Act did not cover
national security cases, however. In 1978, the Foreign
Intelligence Surveillance Act was enacted to set standards for
foreign intelligence investigations.
FISA authorized the Government to collect intelligence
within the United States on foreign powers and agents of
foreign powers. FISA also established a special court to review
and authorize or deny wiretapping and other forms of electronic
eavesdropping for purposes of foreign intelligence gathering in
domestic intelligence cases.
While the PATRIOT Act updated the FISA, it did not change
the procedures against abuse. Before and after the enactment of
the PATRIOT Act, FISA still requires advanced judicial approval
for electronic surveillance and physical searches with limited
exceptions.
FISA still requires a high-ranking Government official to
sign and certify each FISA application. FISA still requires the
Attorney General or his or her deputy to personally sign and
approve every FISA application. FISA still requires that the
Government must have probable cause to believe that a FISA
target is an agent of a foreign power as defined by the
statute.
And, if the target is also a U.S. Citizen, FISA still
requires the Government to show that the target is engaged in
criminal activity, such as international terrorism, sabotage or
espionage, in addition to being an agent of a foreign power.
With this background on FISA, I look forward to hearing the
testimony from the witnesses, and now recognize the
distinguished gentlemen from Virginia, the Ranking Member, Mr.
Bobby Scott, for his statement.
Mr. Scott. Thank you, Mr. Chairman, for holding this
hearing on the issues before us today, in the context where we
have actually broken down the wall that existed between foreign
intelligence gathering, particularly foreign intelligence, and
criminal proceedings, to give the Government broad authority to
collect and share information, mostly secret.
I am concerned that we have also blurred the traditional
line of protection for freedoms and privacy. While I agree that
some lifting of traditional restrictions in this area may be
justified in order to induce Government to better use the
authorities it already has, I am also mindful that those
restrictions were placed there for good reason.
We have seen in the past the COINTELPRO, Watergate, FBI
spying on Martin Luther King, Jr., and other incidents as an
example of what can occur if we do not keep tight enough rein
on Government's use of extraordinary power.
We should not have to experience those problems again in
order to ensure that such abuses do not occur. Some of the
provisions today reflect a trend that is troubling, the trend
of Government to justify an ever-increasing extension of
extraordinary powers based on convenience. We are considering
time frames for surveillance operations that have been extended
even more since the PATRIOT Act extensions, all because the
Government says it is too costly for it to have to justify
extensions in court, even under the low burden of the FISA
court.
If we can commit to speed to spend billions of dollars in
prisons and other law enforcement costs just to codify sound
bites urged by the Department, we can certainly spend time and
expense that it takes to ensure our privacy and freedoms are
not unduly abridged.
And, Mr. Chairman, I believe it is important that we be
safe and maintain our privacy and freedoms, and I don't think
we should have to operate under the premise that we have to
give up one in order to get the other.
So, Mr. Chairman, I look forward to the testimony by
witnesses on the provisions before us today, to learn how they
are being used and how these extraordinary powers can be
authorized, whether or not the sufficient oversight is being
undertaken, and whether the powers are used in a way to protect
our safety as well as privacy and freedoms. And I thank you
again for calling the hearing.
Mr. Coble. I thank the gentleman from Virginia. We have
been joined by the distinguished gentleman from Michigan, the
Ranking Member of the full Committee. Mr. Conyers, do you have
an opening statement?
Mr. Conyers. Just a comment. Thank you, Chairman Coble. We
have three Members and three witnesses, so we all get a chance
to make a comment.
I come here in support of expiration. There are three areas
that I would like to see expire and not be renewed. One is
section 207, one is section 214, and the other is the Lone Wolf
provision, and I would like everybody to try to make it as
clear as they can why they agree with me, hopefully.
Section 207 allows secret surveillance up to a year. The
justification for allowing the extraordinary intrusions under
the Foreign Intelligence Surveillance Act is the extensive
judicial oversight by the FISA court. This section takes that
reasonable oversight away and gives the Justice Department
authority to surveil suspects long after the relevant issues,
the facts have expired, and I think that is not good.
I look forward to hearing why section 214 should be
reauthorized. Pen register and trap and trace orders no longer
are needed to be aimed at an agent of a foreign power under
this provision and are available under the vague standard of
relevance. This is even more troublesome in light of how the
PATRIOT Act has permanently expanded these orders to allow the
Government to record the websites a person visits, and
addresses and subject headings of the e-mails that are sent and
received.
And, finally, I hope that we examine the Lone Wolf
provision, also set to expire this year, where a person need
not be required to be connected with a terrorist organization.
FISA allows the secret surveillance, search and seizure,
only because it is necessary to protect us from foreign powers.
To expand FISA to apply to those who by definition have no
connection to a foreign power starts law enforcement down a
very obvious slippery slope.
And those are my comments, Chairman Coble. I thank you for
this opportunity.
Mr. Coble. I thank the gentleman from Michigan.
Ladies and gentleman, it is the practice of the
Subcommittee to swear in all witnesses appearing before us. So
if you would please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
You may be seated. Today we have three distinguished
witnesses. Our first witness is Mary Beth Buchanan, United
States Attorney for the Western District of Pennsylvania.
Ms. Buchanan has this distinction of being the first woman
in Pennsylvania's history for this presidentially appointed
position. Prior to her appointment as U.S. Attorney, Ms.
Buchanan was an Assistant U.S. Attorney.
From 1992 to 2001, Ms. Buchanan served in the Criminal
Division representing the United States in the prosecution of
both financial and violent crimes. Ms. Buchanan is a graduate
of the California University of Pennsylvania and the University
of Pittsburgh School of Law.
Our second witness is Mr. James A. Baker. Mr. Baker has
been a Counsel For Intelligence Policy in the Office of
Intelligence Policy and Review at the Department of Justice
since 2002.
He served as Acting Counsel from May 2001 until January of
2002. Prior to that he was OIPR's Deputy Counsel for
Intelligence Operations. Prior to joining OIPR, he served as a
Federal prosecutor handling numerous international white collar
crimes for the Criminal Division of the Department of Justice.
Mr. Baker was awarded his undergraduate degree from the
University of Notre Dame and his J.D. And M.A. From the
University of Michigan.
Our final witness today is Ms. Suzanne Spaulding, the
Managing Director at the Harbour Group. Recently Ms. Spaulding
worked as the Executive Director of the two Congressionally
mandated Commissions, the National Commission on Terrorism and
the Commission to Assess the Organization of the Federal
Government to Combat the Proliferation of Weapons of Mass
Destruction.
Ms. Spaulding received her undergraduate and law degrees
from the University of Virginia.
Now, ladies and gentlemen, as you all have previously been
told, we operate by the 5-minute rule here. Your testimony has
been reviewed and will be rereviewed. So if you could comply
with that 5-minute rule. We impose the same 5-minute rule
against us when questioning you all. So when we examine you, if
you can be as terse as possible that will speed matters along.
I do not mean to hold a stopwatch on you, but we have things to
do today.
So, Ms. Buchanan, you will start off. When the amber light
appears that will advise you that you have a minute to go, and
when the red light appears that indicates that the ice on which
you are skating has become very thin.
Just a minute. If you will suspend, Ms. Buchanan, we have
been joined by our friend from Massachusetts, Mr. Delahunt.
Ms. Buchanan, you are recognized for 5 minutes.
TESTIMONY OF THE HONORABLE MARY BETH BUCHANAN, UNITED STATES
ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA, U.S. DEPARTMENT OF
JUSTICE
Ms. Buchanan. Thank you, Mr. Chairman, Ranking Member
Scott, Members of the Subcommittee. I am Mary Beth Buchanan,
the United States Attorney for the Western District of
Pennsylvania, and also the Director of the Executive Office for
United States Attorneys.
It is an honor to appear before you today to discuss the
necessary provisions of the USA PATRIOT Act. As you know, there
are three main themes of the PATRIOT Act: First, to facilitate
the sharing of information between law enforcement and the
intelligence communities; second, to modernize our legal tools
to keep pace with technology; and, third, to create parity
between the criminal law and the national security laws.
My remarks today will focus primarily on this third theme.
Section 214 of the PATRIOT Act deals with the use of pen
registers and trap and trace devices under FISA. A pen register
is a device that can track dialing, routing, addressing, and
signaling information about a telephone or Internet
communication.
For example, which numbers are dialed from a particular
telephone. A trap and trace device gathers the telephone
numbers which call a particular telephone. In neither situation
is content information collected. These devices are commonly
used in the early stages of a criminal investigation to reveal
who is talking to whom, and they can only be used upon
certification to a judge that the information is relevant to an
ongoing criminal investigation.
The information obtained often forms the building blocks
supporting the issuance of search warrants and wiretap orders,
and may also be very valuable at trial to show the connection
between coconspirators.
The process for obtaining authorization for pen register or
trap and trace from the FISA court is similar under section
214. The Government must show that the FISA court--or must show
the FISA court that the information sought is relevant to an
intelligence investigation. The FISA law, however, prohibits
investigations of United States persons which are based solely
upon activities that are protected by the first amendment.
Let me give you two examples of how pen registers have been
used in criminal cases in my district. The first example is a
domestic terrorism case in which David Wayne Hull, a self-
declared imperial wizard of the Ku Klux Klan was convicted and
sentenced to 12 years in prison for illegal possession of
firearms and destructive devices.
In that case, the use of pen registers and trap and trace
devices showed that Hull was in frequent telephone contact with
other members of a white supremacist organization, not only in
Pennsylvania but in four other States. These tools eventually
helped to obtain search warrants and title III orders and to
convict Hull for those offenses.
Pen register information was also very essential to develop
probable cause for a wiretap in a large multi-year drug
investigation. Fifty-one defendants, responsible for bringing
thousands of kilograms of cocaine and heroin into the Western
District of Pennsylvania were convicted on money laundering,
drug and firearm charges.
The pen registers helped to develop the probable cause to
establish that these individuals were communicating with one
another in order to transact their drug trafficking business.
This information led to wiretaps and ultimately resulted in the
conviction of all 51 defendants. In fact, most of the
defendants pled guilty because they realized they had no
defense to the charges.
More importantly, this case had a substantial impact upon
the Western District of Pennsylvania. The availability of
heroin and cocaine was dramatically reduced. In fact, the
heroin overdose deaths declined from 138 in 2001 to 46 in 2003.
These are just a few examples to show how important these
tools can be in criminal investigations. The same tools must be
available in national security investigations. Prior to the
passage of the PATRIOT Act, FISA required the Government to
certify that the facilities to be monitored had been used or
were about to be used to contact a foreign agent or an agent of
a foreign power.
Thus, this was a much higher standard and a much higher
showing than was ever required under the criminal law to obtain
a pen register or a trap and trace order. I hope that you will
agree that terrorism investigations should be on equal footing
with criminal investigations.
Section 214 of the PATRIOT Act does just that. We must
continue to pursue the terrorists with every legal means
available. We need the important tools of the PATRIOT Act to
keep our Nation safe from terror attack.
I thank the Committee for its continued leadership and
support, and I would be glad to answer your questions. Thank
you.
[The prepared statement of Ms. Buchanan follows:]
Prepared Statement of Mary Beth Buchanan
Mr. Coble. Thank you, Ms. Buchanan. Mr. Baker, you are
recognized for 5 minutes.
TESTIMONY OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY,
U.S. DEPARTMENT OF JUSTICE
Mr. Baker. Thank you, Mr. Chairman. Chairman Coble, Ranking
Member Scott and Members of the Committee, I am pleased to be
here today to discuss the Government's use----
Mr. Coble. Mr. Baker, if you will suspend just a minute. We
have been joined by the distinguished gentleman from Ohio, Mr.
Chabot.
Go ahead, Mr. Baker. I won't penalize you for those 10
seconds, Mr. Baker.
Mr. Baker. Thank you, sir.
I am pleased to be here today to discuss the Government's
use of the authorities granted to it by Congress under FISA,
including the amendments to FISA under the USA PATRIOT Act and
the Intelligence Reform Act of 2004. Those provisions have made
a critical contribution to our ability to protect the national
security of the United States consistent with the need to
protect the privacy of Americans.
They affect nearly every FISA application that we file, and
we ask you to renew them. As the Chairman mentioned, I am the
Counsel for Intelligence Policy and the head of Office of
Intelligence Policy and Review at the Department of Justice.
OIPR, as we are known, conducts oversight of the
intelligence and counterintelligence activities of the
executive branch agencies, including the FBI, and my office
prepares and presents to the FISA court all FISA applications,
and we represent the United States before the FISA court.
I report directly to the Deputy Attorney General. I am a
career member of the Senior Executive Service and not a
political appointee.
Rather than reading my written statement into the record
today, I would just like to make a few observations about FISA
that I think will be helpful to our discussion generally today.
First, I would just like to mention the overall purpose of
FISA. As the Chairman discussed, FISA was enacted in 1978 to
provide legislative authorization for and regulation of all
electronic surveillance conducted in the United States for
foreign intelligence purposes. FISA was not intended to
prohibit the collection of important foreign intelligence
information, but rather to subject such collection to statutory
procedures.
Over the years, Congress has expanded the scope of FISA. In
1994 it was expanded to cover physical searches, in 1998 to
provide for separate authorization for pen registers and access
to certain business records. In 2001, of course, we have the
PATRIOT Act that we are all familiar with and why we are here
today.
In addition to that purpose of FISA, I would like to make
clear, to describe that FISA established clear standards for
who could be a target under FISA. Since 1978, the only
authorized targets of full content FISA collection have been
foreign powers and agents of foreign powers. Those terms are
defined terms under the act. The PATRIOT Act did not change the
definition of those terms.
As you know, section 6001 of the Intelligence Reform Act
did change one of the definitions of an agent of foreign power
to include a non-U.S. Person who engages in international
terrorism or activities in preparation therefor. This is the
so-called Lone Wolf provision that we will discuss today.
Similarly, FISA only permits the use of other collection
activities, such as pen registers, when there is a sufficient
nexus between the information that will be collected and a
legitimate intelligence investigation. And when the
investigation involves a U.S. Person, it cannot be based solely
on first amendment activities.
In addition, FISA includes various provisions to ensure
accountability for the authorizations that are approved under
FISA. It includes mechanisms, several mechanisms to ensure
written accountability within the executive branch for the
decision to engage in foreign intelligence collection. This
serves as a check on executive branch arbitrariness. For
example, each full content FISA application must have a
certification from a high ranking official and must be signed
by the--personally signed by the Attorney General or his
Deputy. And FISA's other provisions also include mechanisms to
ensure accountability.
In addition, there is judicial oversight of our activities
under FISA. Whenever a surveillance or a search for foreign
intelligence purposes may involve the fourth amendment rights
of any U.S. Person, approval for such collection must come from
a neutral and detached Federal judge.
Moreover, even when such fourth amendment rights are not
implicated, such as for pen register data, FISA still requires
approval by a Federal judge or magistrate before the Government
can engage in such collection.
Finally, I would like to highlight some additional privacy
protections that are in FISA, and they are known as
minimization requirements. The Government may only conduct a
full content surveillance or search when there are adequate
procedures in place to minimize the intrusion into the privacy
of U.S. Persons. Each application that we file for full content
collection must include specific minimization procedures that
are approved by the Attorney General, are reasonable in their
design, and minimize the acquisition, retention and
dissemination of information about U.S. Persons, consistent
with the need of the Government to obtain, produce, and
disseminate foreign intelligence. In each case, the Federal
judge orders the Government to follow those procedures.
With these principles in mind, I am happy to answer any
questions the Committee may have on our use of FISA and the
authorities granted to us by Congress in the PATRIOT Act and
the Intelligence Reform Act.
[The prepared statement of Mr. Baker follows:]
Prepared Statement of James A. Baker
Mr. Coble. Thank you, Mr. Baker. Ms. Spaulding.
TESTIMONY OF SUZANNE SPAULDING, MANAGING DIRECTOR, THE HARBOUR
GROUP, LLC
Ms. Spaulding. Chairman Coble, Ranking Member Conyers, and
Subcommittee Ranking Member Scott and Members of the Committee,
thank you for inviting me to participate in today's hearing.
I understand that this is just one of many hearings the
Committee will be holding on the implementation of the USA
PATRIOT Act. I commend you for your commitment to undertaking a
thorough examination of these significant provisions.
I would like to begin my testimony by emphasizing that I
have spent over 20 years working on efforts to combat
terrorism, starting in 1984 as Senior Counsel to Senator Arlen
Specter of Pennsylvania, who introduced and guided to enactment
the first law to provide extraterritorial jurisdiction over
terrorist attacks against Americans abroad.
Over the last 2 decades in my work at the Central
Intelligence Agency, at Congressional intelligence oversight
Committees, and as Executive Director of two independent
commissions, I have seen how the terrorist threat changed, from
one aptly described in the mid-1980's by Brian Jenkins'famous
remark that, quote, terrorists want a lot of people watching,
not a lot of people dead, to one that is now more aptly
described by former DCI Jim Woolsey's observation that the
terrorists of today don't want a seat at the table, they want
to destroy the table and everyone sitting at it.
There is no question that today we face a determined set of
adversaries bent on destroying American lives and America's way
of life. The counterterrorism imperative is to deny the
terrorists both of these objectives.
My testimony this morning attempts to assess how well two
key provisions, in particular the Lone Wolf amendment and
section 214, satisfy this counterterrorism imperative. Let me
start with the Lone Wolf amendment to FISA.
The Foreign Intelligence Surveillance Act is an extremely
important national security tool. The problem with the Lone
Wolf provision is that it needlessly undermines the policy and
constitutional justification for this essential authority. The
Lone Wolf provision is often referred to as the Moussaoui fix.
But, in fact, no fix was needed in the Moussaoui case, because
it was not FISA's requirements that prevented the FBI from
gaining access to his computer back in August of 2001. The
problem was the FBI's misunderstanding of FISA's requirements.
This conclusion is supported by the findings of the Joint
Congressional Intelligence Committee inquiry into the 9/11
attacks, an exhaustive Senate Judiciary Committee inquiry, and
the 9/11 Commission.
As the Senate Judiciary Committee report explained, the FBI
did not have a proper understanding of either the probable
cause standard or the legal definition of the agent of a
foreign power requirement. Specifically, the Bureau was under
the incorrect impression that the statute required a link to an
already identified or recognized terrorist organization.
The Senate Judiciary Committee report explains that while a
group is not defined in FISA, in common parlance and using
other legal principles, including criminal conspiracy, a group
consists of two or more persons whether identified or not. And
the probable cause standard does not mean more likely than not
or an over 51 percent chance, but only the probability and not
a prima facie showing.
The report concluded that the Government did have
sufficient information to meet the FISA standard and gain
access to Moussaoui's computer.
Some would argue that we ought to include the Lone Wolf
amendment to FISA anyway, just in case. The problem with this
reasoning is that it comes at a high cost. In addition to being
unnecessary, the Lone Wolf provision, by extending FISA's
application to an individual acting entirely on their own,
undermines the policy and constitutional justification for the
entire FISA statute.
When Congress enacted FISA, according to the Senate report,
it carefully limited its application in order to, quote,
``ensure that procedures established in FISA are reasonable and
in relation to legitimate foreign counterintelligence
requirements and the protective rights of individuals. Their
reasonableness depends, in part, upon an assessment of the
difficulties of investigating activities planned, directed and
supported from abroad by foreign intelligence services and
foreign-based international terrorist groups.''
The Congressional debate and the court cases that informed
and followed it clearly reflect the sense that this limited
exception from normal criminal warrant requirements is
justified only when dealing with foreign powers or their
agents, and was further enforced in the FISA court of review
opinion.
Congress should let the Lone Wolf provision sunset. If the
Government can make a compelling case that targets have escaped
necessary surveillance because the Government has been unable
to meet the relatively low probable cause standard for showing
that at least one other person is involved, Congress could
consider creating a permissive presumption that if there is
probable cause to believe that a non-U.S. Person is engaged in
or preparing for international terrorist activities they can be
considered an agent of a foreign power. However, if it
ultimately becomes clear that the target is acting alone a
criminal warrant should be sought.
And I would be happy to address sections 214 and 207 in the
question and answer period.
[The prepared statement of Ms. Spaulding follows:]
Prepared Statement of Suzanne E. Spaulding
Mr. Chairman, Ranking Member, and members of the committee, thank
you for inviting me to participate in today's oversight hearing on the
implementation of certain sections of the USA PATRIOT Act and the Lone
Wolf provision, all of which are subject to sunset provisions. I
understand that this is just one of many hearings that the committee
will be holding on the implementation of USA PATRIOT Act and I commend
the committee for its commitment to undertaking a thorough examination
of these significant provisions.
I would like to begin my testimony today by emphasizing that I have
spent over twenty years working on efforts to combat terrorism,
starting in 1984 as Senior Counsel to Senator Arlen Specter of
Pennsylvania, who introduced and guided to enactment the first law to
provide extraterritorial jurisdiction over terrorist attacks against
Americans abroad. Over the last two decades, in my work at the Central
Intelligence Agency, at congressional intelligence committees, and as
Executive Director of two different commissions on terrorism and
weapons of mass destruction, I have seen how the terrorist threat
changed from one aptly characterized by Brian Jenkins famous remark
that ``terrorists want a lot of people watching, not a lot of people
dead,'' to one better described by former DCI Jim Woolsey's observation
that ``the terrorists of today don't want a seat at the table, they
want to destroy the table and everyone sitting at it.'' There is no
question that today we face a determined set of adversaries bent on
destroying American lives and our way of life. The counterterrorism
imperative is to deny the terrorists both of these objectives.
My testimony this morning attempts to assess how two key
provisions, the Lone Wolf amendment and section 214, satisfy this
counterterrorism imperative.
LONE WOLF
The Foreign Intelligence Surveillance Act (FISA) is an extremely
important national security tool. The problem with the Lone Wolf
provision is that it needlessly undermines the policy and
constitutional justification for this essential authority.
The common wisdom--``if it ain't broke, don't fix it''--was ignored
when Congress enacted the ``lone wolf'' amendment to the Foreign
Intelligence Surveillance Act (FISA), allowing its use against an
individual acting totally alone, with no connection to any foreign
power, so long as they are ``engaged in international terrorism or
activities in preparation therefor.''
I think it's important for the committee to separate the true lone
wolf from the case of someone who's connection to a terrorist group is
simply unclear. If there is a legitimate concern about the ability of
the government to show the necessary connection to an international
terrorist group--and I am not convinced there is--then there are better
ways to address this concern than to extend FISA to someone that we
know is acting entirely alone.
Let's start with the case of someone who's connection to an
international terrorist group may be unclear. I would urge the
committee to carefully consider whether the government has made a
compelling case that they need the lone wolf provision to address this
concern.
The lone wolf provision is often referred to as the ``Moussaoui
fix.'' In fact, no ``fix'' was needed in the Moussaui case because it
was not FISA's requirements that prevented the FBI from gaining access
to his computer back in August of 2001. The problem was the FBI's
misunderstanding of FISA. This conclusion is supported by the findings
of the Joint Congressional Intelligence Committee Inquiry into the 9/11
Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11
Commission.
In order to obtain a FISA order authorizing access to Moussaoui's
computer, the FBI needed to show probable cause to believe that
Moussaoui was acting ``for or on behalf of a foreign power.'' A foreign
power is defined to include a group engaged in international terrorism.
As the Senate Judiciary Committee Report explained, the FBI
misunderstood the FISA requirement:
In addition to not understanding the probable cause standard,
the (the Unit Chief) did not have a proper understanding of the
legal definition of the ``agent of a foreign power''
requirement. Specifically, he was under the incorrect
impression that the statute required a link to an already
identified or ``recognized'' terrorist organization, an
interpretation that the FBI and the supervisor himself admitted
was incorrect.
FBI Oversight in the 107th Congress by the Senate Judiciary Committee:
FISA Implementation Failures, An Interim Report by Senators Patrick
Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.
The Judiciary Committee Report, echoing the House Report
accompanying FISA in 1978, explained that while ``a group'' is not
defined in FISA, ``in common parlance, and using other legal
principles, including criminal conspiracy, a group consists of two or
more person whether identified or not.'' Moreover, remember that the
FBI does not have to ``prove'' the target's connection to a terrorist
group. They must merely meet the ``probable cause'' standard, which, as
the Judiciary Committee Report points out, does not mean ``more likely
than not'' or ``an over 51% chance,'' but ``only the probability and
not a prima facie showing.'' The Report concluded that ``there appears
to have been sufficient evidence in the possession of the FBI which
satisfied the FISA requirements for the Moussaoui application'' (p.
23). Thus, no ``fix'' was required to search Moussaoui's computer.
Even if the FBI had not been able to meet the relatively low
``probable cause'' standard for showing that Moussaoui was working with
at least one other person, the FBI could very likely have obtained a
criminal warrant to search Moussaoui's computer. They did not pursue
that because they were concerned that doing so would preclude them from
getting a FISA warrant later if they were turned down for the criminal
warrant or ultimately did develop what they thought was sufficient
information linking him to a terrorist group. This concern was based on
the ``primary purpose'' test--viewed as precluding the use of FISA if
the primary purpose was criminal prosecution rather than intelligence
collection--which was subsequently changed in the USA PATRIOT Act.
Now that this ``primary purpose'' test has been eliminated, and
particularly in light of a subsequent opinion by the Foreign
Intelligence Surveillance Court of Review, this would no longer be a
concern and the government today could seek a criminal warrant without
concern of precluding future use of FISA.
Nor would the need to use sensitive information in the criminal
warrant application be a compelling concern, since the criminal wiretap
statute already imposes security requirements upon the judiciary in
connection with crimes such as espionage, sabotage, and treason. In
addition, classified information already is shared with judges in the
context of the Classified Intelligence Procedures Act.
One might argue that we should include the Lone Wolf option in FISA
``just in case.'' The problem with this reasoning is that it comes at a
high cost. In addition to being unnecessary, the lone wolf provision--
by extending FISA's application to an individual acting entirely on
their own--undermines the policy and constitutional justification for
the entire FISA statute.
When Congress enacted FISA, according to the Senate Report, it
carefully limited its application in order ``to ensure that the
procedures established in [FISA] are reasonable in relation to
legitimate foreign counterintelligence requirements and the protected
rights of individuals. Their reasonableness depends, in part, upon an
assessment of the difficulties of investigating activities planned,
directed, and supported from abroad by foreign intelligence services
and foreign-based terrorist groups.'' Senate Report 95-701, at 14-15
(emphasis added).
The Congressional debate, and the court cases that informed and
followed it, clearly reflect the sense that this limited exception from
the normal criminal warrant requirements was justified only when
dealing with foreign powers or their agents. Most recently, the FISA
Court of Review (FISCR) cited the statute's purpose, ``to protect the
nation against terrorists and espionage threats directed by foreign
powers,'' to conclude that FISA searches, while not clearly meeting
``minimum Fourth Amendment warrant standards,'' are nevertheless
reasonable.
The FISA exception to the Fourth Amendment warrant requirement was
not based simply on a foreign nexus; it did not apply to every non-US
person whose potentially dangerous activity transcended US borders. It
was specifically limited to activities involving foreign powers.
Individuals acting entirely on their own simply do not implicate
the level of ``foreign and military affairs'' that justify the use of
this extraordinary foreign intelligence tool.
The requirement that the lone wolf must be ``engaged in
international terrorism or acts in preparation therefore'' does not
solve this problem. Nowhere in FISA's definition of ``international
terrorism'' is there any requirement for a connection to a foreign
government or terrorist group. The definition of international
terrorism merely requires a violent act intended to intimidate a
civilian population or government that occurs totally outside the
United States, or transcends national boundaries in terms of the means
by which it is accomplished, the persons it appears intended to coerce
or intimidate, or the locale in which the perpetrators operate or seek
asylum. This would cover an individual inside the US who uses a gun
that was purchased in Mexico to threaten a teacher in a misguided
attempt to get the government to change its policies on mandatory
testing in schools.
Nor should we rely upon FISA judges to ensure that an overly broad
standard is only applied in ways that are sensible, since the law makes
clear that they must approve an application if the standards set forth
in the statute are met.
Congress should let the lone wolf provision sunset. If the
government can make a compelling case that targets have escaped
necessary surveillance because the government has been unable to meet
the relatively low ``probable cause'' standard for showing that at
least one other person is involved, then Congress could consider
creating a permissive presumption that if there is probable cause to
believe that a non-US person is engaged in or preparing for
international terrorist activities, they can be considered an agent of
a foreign power. If it ultimately becomes clear that the target is
acting alone, a criminal warrant should be sought.
If nothing else, Congress should seriously reconsider its decision
to ``fix'' FISA by slipping the ``lone wolf'' into the definition of an
``agent of a foreign power.'' By defining an individual acting totally
alone, with no connection to any other individual, group, or
government, as ``an agent of a foreign power,'' Congress adopted the
logic of Humpty Dumpty, who declared: ``When I use a word, it means
just what I choose it to mean.'' Unfortunately, this legislative
legerdemain stretched the logic of this important statutory tool to a
point that threatens its legitimacy. If its use against a true lone
wolf is ever challenged in court, FISA, too, may have a great fall.
SECTION 214
Section 214 expands the pen register and trap and trace authority
under FISA. Prior to this expansion, these orders could be issued only
if there was reason to believe that the telephone line or other
communication device had been or was about to be used to communicate
with an individual involved in international terrorism or spying that
may violate US criminal laws or, in the case of an agent of a foreign
power, communications that may concern international terrorism or
spying that violate criminal laws. The new standard is significantly
lower. Now these orders must be issued if it is merely ``relevant'' to
ongoing investigation to protect against international terrorism or
spying. This is justified as being consistent with the standard for pen
registers and trap and trace authority in the criminal context, which
requires that the communications be relevant to an ongoing criminal
investigation.
Without addressing the appropriateness of the criminal standard,
let me try to explain why I am uncomfortable with the government's
argument that whatever powers it has in the ordinary criminal context,
it should have for international terrorism investigations--an argument
it has made to justify many post-9/11 expansions of power.
The rules that apply in the criminal context require some kind of
criminal predicate. Not necessarily that a crime has already been
committed, but that the activity that is targeted would violate a
criminal statute. Under our constitution, criminal activity must be
well defined so that individuals are clearly on notice with regard to
whether their actions may violate the law and thus justify government
scrutiny.
The language in section 214 and elsewhere drops all references to
any criminal predicate, referring instead to ``an investigation to
protect against international terrorism.'' These investigations can be
based merely on ``suspicious activity''--something that has not yet
been defined and which any one of us might engage in without even
knowing it. The implications of this distinction are potentially
profound and have not, I believe, been fully considered.
Beyond this concern, it is also troubling that the only caveat in
section 214 with respect to US persons is that the investigation cannot
be based ``solely'' upon activities protected by the First Amendment to
the Constitution. Doesn't this mean that the non-First Amendment
activity could be extremely minor or insignificant, since even that
would take it out of the realm of relying ``solely'' on First Amendment
activity?
Concerns about the new standard in section 214 are similar to
concerns expressed about the nearly identical standard provided for
Section 215 of the PATRIOT Act, which provides authority for the FBI to
compel anyone to produce any tangible thing in their possession as part
of a terrorism investigation. I am certain that the committee will
spend a great deal of time considering the range of concerns raised by
section 215. Thus, I will not go into these concerns in detail but
would urge the committee to keep section 214 in mind when it considers
the standard in section 215.
The concerns with section 214 are often downplayed because it does
not provide authority to intercept the ``content'' of the
communications and, thus, the assumption is that there is no reasonable
expectation of privacy. However, as you know, section 216 of the
PATRIOT Act, which is not subject the sunset provisions, expanded pen
register and trap and trace authority to activity on the Internet,
where it is far more difficult to separate content from routing and
addressing information. If a pen register served on an ISP requires
disclosure of the URL, for example, that will almost always reveal the
subject matter. Furthermore, if the government simply looks up the URL
on the Internet, they can view the entire content of the page that you
visited. This makes it more analogous to section 215's authority for
the FBI to find out what books you are reading, and this is another
reason that the committee should reconsider section 214 when it
considers section 215.
CONCLUSION
Let me close by again 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 the
terrorist threat. We often say that Democracy is our strength. The
unique relationship between government and the governed in a democracy
is a key source of that strength. These hearings, and your willingness
to carefully consider whether these provisions adopted in haste in a
time of great fear should be renewed or modified, will contribute
significantly to restoring the necessary public confidence that the
government is protecting both American lives and America's way of life.
Thank you.
Mr. Coble. Thank you. I commend each of you for not having
violated the red light rule. You all came in under the wire.
Folks, our Subcommittee has been blessed, generally, with
the appearance of excellent witnesses. Today is no exception. I
think we have a very fine panel before us. Mr. Baker, let me
start with you.
Why was it necessary to extend the surveillance from 90
days to 120 days and the period of physical searches from 45 to
90 days?
Mr. Baker. Mr. Chairman, this was an effort to be
reasonable in the sense that we were after--especially after 9/
11, we were crushed, my office was crushed with the number of
FISA applications that were going through. And so we were
looking for ways to try to enable us to use our resources more
effectively and more efficiently to protect the privacy of
Americans.
So what we did by proposing this was to focus, with respect
to the 90-day to 120-day and 1-year provisions, to focus on
cases involving non-U.S. Persons. And these non-U.S. Persons
are individuals who act in the United States as officers or
employees of a foreign power or act as a member of an
international terrorist group. So it was our assessment that
this was an area where the privacy interests at issue for
Americans were lower, and, therefore, by allowing us to use
resources on the cases where Americans were targeted, that was
a better use of our resources. That was where the civil
liberties issues were more focused and was a better use of our
resources in general there.
Mr. Coble. So, now, assuming this extension is in fact
enacted, could the Government go back to court and request an
extension of the orders upon expiration of the time frame; that
is, the 120 or the 90 days?
Mr. Baker. Yes. The expiration--we would obtain
authorization for one of these individuals in the first
instance, for 120 days, and then the expiration--at the
expiration of 120 days, we would seek an extension for 1 year.
Mr. Coble. Thank you, sir.
Ms. Spaulding, you said you might want to talk about the
other sections you did not allude to. So fire away.
Ms. Spaulding. Thank you, Mr. Chairman. With regard to
section 207 and the duration of FISA orders, if the Government
is indeed able to make a compelling case to the Committee that
it is overly burdensome to file for extensions more frequently,
my suggestion would be that at a minimum the Committee consider
broadening the discretion of the FISA judge to enter an order
for a shorter period of time under certain circumstances.
There are undoubtedly situations which you might consider a
slam dunk, to use an unfortunate term, where it is quite clear
that you are going to be getting valuable information from a
FISA surveillance.
There are other circumstances in which it maybe is not
quite so clear, in which a FISA judge ought to have the
discretion, as they do apparently, in the extensions of an
order, to enter it for up to the period of time. But, in the
initial order, the language is not clear as to whether the FISA
judge has this discretion to ask the Government to come in at
an earlier point in time, and that would be my suggestion on
207.
Mr. Coble. I thank you. Ms. Buchanan, let me put a
multifaceted question to you. How are pen registers typically
used in criminal investigations, A, and does 214 authorize pen
registers for intelligence investigations to obtain the content
of a conversation, e-mail or phone call? And, finally, what
kind of information does section 214 allow the Government to
obtain?
Ms. Buchanan. Pen registers are obtained in order to
collect the information that is dialed from a telephone, the
numbers that are dialed, the routing information. This is not
content information. This type of information is collected by
the Government to show connections between individuals, to
develop probable cause, to further develop a case.
These procedures are utilized early in an investigation.
Section 214 permits the Government to obtain this information
in intelligence investigations as well as the criminal law.
Neither under the criminal law or under section 214 can the
Government collect content information. So that is not
permissible under either statute.
Mr. Coble. Well, I think we will probably have a second
round because we do not have that many Members here, and this
is indeed important. So I will suspend, waiting for the second
round.
I recognize the gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. Let me follow through
on that. On the pen register, trap and trace warrants, you say
you cannot get content. That is on the telephone conversations.
How do e-mail and websites fare under that standard?
Ms. Buchanan. It is really no different, Congressman Scott.
Content information is not collected either under a pen
register for a telephone or under a pen register of e-mail.
Content is not collected. The statute----
Mr. Scott. What do you get on e-mail or websites?
Ms. Buchanan. The statute is designed to collect just the
routing information, who is talking to whom, not the content.
The statute specifically deals----
Mr. Scott. What do you get on an e-mail?
Ms. Buchanan. With an e-mail you just get the routing
information, where the e-mail went, who the e-mail was
addressed to, not the subject or not any of the content. The
statute----
Mr. Scott. No subject line.
Ms. Buchanan. No subject line. The statute anticipates that
in some circumstances there could be inadvertent collection.
The statute requires the Government to use the latest
technology to prevent that from happening, and in the
inadvertent situation when it does happen the Government is
required to minimize this information and not to use it.
Mr. Scott. What about websites?
Ms. Buchanan. The same would apply to a website. This
information----
Mr. Scott. Do you get to know which website was looked at?
Ms. Buchanan. The information that is sought is where the
e-mail traffic was routed to.
Mr. Scott. What about--website is not an e-mail. Can you
find out what websites I have looked at?
Ms. Buchanan. I think I am going to defer to Mr. Baker.
Mr. Baker. Well, this is the----
Mr. Scott. I just say that because a website, if you know
what website it was you know what I was looking at. If there
were dirty pictures that would be embarrassing. Can you find
out whether or not I was looking at dirty pictures, or whether
or not I just accessed AOL?
Mr. Baker. There are two issues here. The one issue is what
does the technology allow us to do, and then what does the law
allow us to do?
In situations where the technology would not sort of by
default restrict the--looking down at particular web pages at a
particular website, there are internal Department of Justice
procedures as recognized by the statute that are in place to
try to address the situation that you are describing.
So the law indicates that we are not allowed to collect the
content, technology sometimes is not able to do that, to sort
of defeat the content, and there are provisions in place in
terms of policies to, in effect, minimize that kind of
collection for--in other words----
Mr. Scott. Well, you recognize the fact that if you have--
the website you look at has content implications, if there are
certain health care websites, other kinds of websites, you can
get some content just because you know what I have been
reading.
Mr. Baker. Yes. But these are communications--well----
Mr. Scott. Or what books I bought off of amazon.com. When I
go to a website and look at those books, the website, page by
page, you can see what I have been doing, what I have been
buying.
Mr. Baker. Well, I mean, business records, books that you
purchased from a company, that is not something that is
protected by the fourth amendment. And so different standards
apply when the Government wants to obtain that kind of
information.
So the statute is written a particular way to prohibit the
use of a pen register to get content. But, nevertheless, those
materials and that example might not be protected by the fourth
amendment.
Mr. Scott. These FISA warrants, there is reference to not a
U.S. Citizen. Can a U.S. Citizen be the target of a FISA
wiretap?
Mr. Baker. Absolutely, yes. The law distinguishes and has
different standards for when you want to--when your target is a
non-U.S. Person or a foreign power and when your target is a
U.S. Person.
Mr. Scott. Well, target of the investigation and target of
the wiretap----
Mr. Baker. I am talking about the target of the
surveillance in terms of a full content FISA.
Mr. Scott. Okay. Well, the target of the wiretap, does that
have to be the target of the investigation? Suppose you find
that somebody has a lot of information about your target. Can
you wiretap that phone to get information about the target?
Mr. Baker. The target is the person or the entity about
whom you want to obtain information. So----
Mr. Scott. Suppose a U.S. Citizen has information, and
would be--you find out that they are going to be talking about
your target, and you can find out where they are going to be,
get good information about your target. Can you wiretap--as
part of the investigation of the target, can you wiretap
somebody else to get information about your target?
Mr. Baker. No. Only if I could show that that person was an
agent of a foreign power. I would have to separately show, or
that the other person is using or about--that my target--what I
have--two things I have to show under FISA: that the target is
an agent of a foreign power, and I have to establish that by
probable cause, and the second thing, that the target is going
to use the facilities or places of which the surveillance is
going to be directed. So a telephone used by an innocent person
that is not being used by the target is off limits unless I can
make the statutory showing.
Mr. Scott. So you can only listen into conversations that
involve the target?
Mr. Baker. It depends what facility I am targeting. If I am
surveilling the target's home phone, let's say, and the
target--and that is my target, and I can be up on that
telephone, if other individuals use that phone, then I can
continue my collection, and I deal with that through court
authorized and approved minimization procedures.
This is exactly what happens in the title III arena as
well. You come up on the telephone----
Mr. Scott. Well, that is the home phone. If you got this
roving kind of thing and the bug is actually placed at his
place where he volunteers a lot, like the National Democratic
Headquarters, how do you listen in on other people's
conversations there?
Mr. Baker. Well, again, I am going to have to--I know that
the roving positions are going to be the subject of a hearing
on Thursday. But succinctly, all of the FISA provisions have
within them these minimization procedures that I mentioned
earlier, that minimize, that require the Government to minimize
the acquisition, retention, and dissemination of the
information that is collected.
And those are--and the court orders us to follow those
procedures. The court reviews those procedures and orders us to
follow them.
Mr. Coble. I thank the gentleman. The gentlemen from Ohio
is recognized for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman. Mr. Baker, prior to
the enactment of the Lone Wolf amendment, how difficult was it
for intelligence agencies to obtain wiretap orders for foreign
terrorists who do not belong to any identified terrorist
organizations?
Mr. Baker. Well, it was not authorized by the statute for
us to be able to do that. So the answer is we could not do
that. We had to find a connection between the target and a
foreign power, an international terrorist group or a foreign
government, so on.
But it is worth mentioning that from the beginning, from
1978, an international terrorist group could consist of as few
as two people. So the difference here really is going, at the
minimum, or at the base level, I guess, from a group of two
people to a group, if you will, of one person.
Mr. Chabot. And what must the FISA court find before
issuing a surveillance order under the Lone Wolf provision?
Mr. Baker. That the Lone Wolf, that the target is an agent
of a foreign power, meaning in this context that they are a
non-U.S. Person, that is critical to remember, non-U.S. Person,
who engages in international terrorism or activities in
preparation therefor. So this is the Lone Wolf who--an
individual who could, I mean, in sort of the doomsday scenario,
the things that we are most worried about, an individual who
might have access to some kind of a weapon of mass destruction,
chemical, biological, nuclear, or radiological weapon, attempt
to use a device such as that in the United States, but have no
known or apparent connection to another individual or a group
or a foreign government.
Mr. Chabot. And do you believe that real or apparent Lone
Wolf terrorists could threaten the safety and security of the
American people?
Mr. Baker. Absolutely. As I have just described, that is
what we are very worried about. And it seems to me that, I
mean, as the FISA court of review said back in 2002, FISA is
constitutional because the searches it authorizes are
reasonable.
And it seems to me that targeting an individual such as the
one I just described, bringing in a weapon of mass destruction
into the United States, under the fourth amendment that is
reasonable, and I think therefore that this provision of FISA
is certainly constitutional.
Mr. Chabot. Now, critics of the Lone Wolf provision argue
it is a dangerous expansion of authority allowing the
application of FISA to individuals lacking any connection to
foreign powers.
Do you agree with Mr. Woods who counters this claim on
patriotdebates.com when he says, quote, the language actually
enacted, however, integrates a definition of international
terrorism that preserves a sufficiently strong foreign nexus
requirement, unquote?
And if so, could you explain that nexus and why it is
important.
Mr. Baker. Yes, I agree with that comment. Again, to be an
agent of a foreign power under this provision, you have to
first be a non-U.S. Person and you have to be engaged in
international terrorism activities. International terrorism is
a defined term under the statute. It includes or covers or
applies only to, said differently, violent acts or acts
dangerous to human life that are a violation of the criminal
laws of the United States or would be if committed here, that
have a coercive or intimidation factor associated with them,
and occur outside the United States or transcend national
boundaries, and the perpetrators, the locale that they are
going to be taking place in, or the places where the target is
going to seek asylum.
And so there is a nexus to international terrorism. You
cannot use the Lone Wolf provision to conduct electronic
surveillance of a U.S. Person who is engaged in domestic
terrorism in the United States. It doesn't apply to that kind
of situation.
Mr. Chabot. Okay. And who determines whether an individual
will be classified as a Lone Wolf and what are the criteria
used in making such a determination?
Mr. Baker. Well, at the end of the day it is the FISA
court. We have to go before the FISA court before we can get
one of those approvals. Prior to that, the Attorney General
must sign every application that would use the Lone Wolf
provision. Before that, you would have to have a certification
from someone, such as the Director of the FBI or another high
ranking Government official with national security
responsibilities. And my office reviews that, the FBI reviews
that and so on.
And, again, the legal foundation is that there is probable
cause to believe that the target is an agent of a foreign power
under the standard I just articulated, and that they are using
or are about to use the facilities at which the surveillance
will be directed.
Mr. Chabot. Finally, has provision alone resulted in a
dramatic increase in the use of FISA warrants in situations
that do not justify such extraordinary Government power?
Mr. Baker. Well, I would--I mean I would say, first of all,
the number of times that we have used this I believe is still
classified, so I can't discuss that today.
But I would say that, I mean certainly, whenever--if we can
meet this standard, I think that surveillance of such a person
would be justified and would be warranted.
Mr. Chabot. Thank you. I know that the light is ready to
come on. So I yield back the balance of my time.
Mr. Coble. The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I remember Attorney
Buchanan pointing out how helpful some of the provisions here
in the PATRIOT Act were. But the convictions were only criminal
convictions. They had nothing to do with terrorism.
Ms. Buchanan. That is correct, Mr. Conyers. I was
demonstrating how the pen register is used in a criminal case,
because, of course, those cases are not classified and the pen
register is used in the same manner under FISA.
So I was demonstrating how it can collect noncontent
information to show connections between individuals and how
that information can be used to later build upon the
investigation and ultimately result in convictions.
Mr. Conyers. Have there ever been any terrorist convictions
in the United States?
Ms. Buchanan. Well, we just had one last week.
Mr. Conyers. Well, you had a plea of guilty.
Ms. Buchanan. Well, that is a conviction.
Mr. Conyers. Congratulations. Any others?
Mr. Baker. Well, I think----
Mr. Conyers. Can you think of any others, Counsel?
Ms. Spaulding. No.
Mr. Conyers. Can you? I am just inquiring.
Mr. Baker. Mr. Congressman, you are looking for trials,
actually where someone was convicted following a trial is what
I am gathering from your question.
Mr. Conyers. Well, there has only been one plea of guilty,
and no trials, according to what I know.
Mr. Baker. Well, I can't remember off the top of my head
every conviction. But we have the cases up in Buffalo, the
Lackawanna cases, we have the cases in Portland, we have the
cases in Virginia as well, I think the Virginia cases, the so-
called Virginia Jihad Group. Those I believe were convictions
following a trial before a jury. So I think the answer is yes.
Mr. Conyers. All right. Let me ask Attorney Spaulding. I am
trying to shape this notion, the feeling that I have is that
the way these things are written and interpreted that the
intelligence community can do just about anything they want
anyway.
Can you make me feel better about that and get that out of
my system, and really believe that--I mean, I would like to
imagine a situation where they are only looking for the phone
numbers that you are calling and who you are calling, but they
don't want to hear the substance, and they are sitting up
there, and I am trying to really keep a straight face and
believe that they are not going to listen to substance--I mean,
what--this whole area is so general and vague. I remember the
former Attorney General refusing court orders flat out. They
asked him, I think, to produce something. He said no, he is
just not doing it. They can do whatever they want.
Ms. Spaulding. My sense, from working in the intelligence
community and on the staff of the oversight Committees, is that
the intelligence community takes its legal obligations very
seriously, that in fact they endeavor to stay on the right side
of U.S. Law.
Needless to say, espionage is a violation of laws of
virtually every country in the world. So they are violating law
when they operate overseas. But they take very seriously their
obligation to follow U.S. Law.
But it is also the case that law enforcement and
intelligence communities will use all of the authority that the
law gives them, and they will use it to its fullest to
accomplish their mission, which is why it is so important to
make sure that the law is clear and appropriate, not overly
broad and not vague.
The concern with respect to the potential for section 214
to provide access to content that was illustrated by Mr.
Scott's questions, particularly most acute in the Internet
context, is a legitimate concern. And it is why I think that it
ought to be, that section 214 ought to be reconsidered by this
Committee when it looks at section 215. The standards are very
similar, and I would hope that 215 will be discussed in that
same context.
Attorney Buchanan talked about the standard is parallel to
that in the criminal context, ``relevant to a criminal
investigation for criminal context, and relevant to an
international terrorism'' or investigation to protect against
terrorism in the FISA context, and I would simply urge the
Committee to carefully consider the import of that distinction.
Mr. Conyers. Last question. If Chairman Coble in his usual
fairness were to allow us to drop one of these three, Lone
Wolf, 214, 207, and we had a quick conference, wouldn't you
agree that the Lone Wolf provision is the most troublesome?
Ms. Spaulding. I would, yes.
Mr. Conyers. Thank you.
Mr. Coble. The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman. Ms. Spaulding, could
you comment on the testimony by Mr. Baker, Mr. Baker and his
analysis of the necessity of the Lone Wolf provision?
Ms. Spaulding. Yes.
Mr. Delahunt. I sense a nuanced disagreement. And then I
will ask you, Mr. Baker, to comment on her response.
Ms. Spaulding. I think it's important. I believe that
FISA--the justification for FISA is not based on the
dangerousness of the threat. Clearly a domestic terrorist can
wreak just as much havoc as an individual who has transcended
international borders in the means by which they carry out
their act. So I don't think FISA is just based on that ground.
In fact, what the courts and the Congress have said is that
FISA is based on a compelling Government need that exists in
the context of an international group; that exists in the
context where you've got more than one player so that you're
likely to get something out of listening to this conversation,
and because there is more than one player and it involves an
international group, the challenges for the collection of that
intelligence and the need for continued secrecy because there
are other players involved are what provide the justification
of FISA, and this is totally lacking in the context of an
individual acting solely on their own. And I think that is a
very important distinction because you get caught up in the
nature of the threat.
Mr. Baker. Again, Congressman, I think that the basic
answer is that the searches and surveillances that FISA
authorizes are constitutional because they are reasonable. And
it's our assessment that focusing on somebody like a lone wolf,
somebody----
Mr. Delahunt. Let me interrupt you for a moment. You use
the hypothetical of an individual coming in with weapons of
mass destruction. I'm talking about, you know,--I understand
the concerns. But by implication, doesn't that qualify as--by
inference, isn't there a reasonable inference that there is a
group, that there is a conspiracy of some sort just simply
because of the acquisition, if you will, the transmission? I'm
sure that a weapon of mass destruction just doesn't appear out
of thin air on someone's door.
Again, I think, you know, that was the point that I think I
heard earlier from Ms. Spaulding. You know, I think there are
other means, other than the provision itself to achieve the
result you're looking for.
Mr. Baker. In a situation such as we're describing here,
time will be--if we are faced with that, time will be of the
essence.
Mr. Delahunt. You know, this whole time issue continues
rising like there is an immediacy to it. If there is in the
possession of the Government and investigatory agencies, I
can't imagine a scenario where there is not implicated a co-
conspirator. I simply can't.
Mr. Baker. You might not be able to imagine that, but we
have to have some evidence to establish that before the FISA
court.
Mr. Delahunt. I understand that. But I would think a FISA
judge sitting on, you know, being presented an affidavit--
included in the affidavit would be some reference to another
individual. I mean, there has to be a minimal level of evidence
there.
Mr. Baker. Whether or not I could come up with as a
creative lawyer and explain to the FISA court reasonable
instances and so on in a particular factual situation is one
thing. But the question is, doesn't it make more sense to have
a clear standard already in the law that doesn't force us when
we are under the gun in terms of time pressure to try to
concoct something that may not fly.
Mr. Delahunt. This is always going to be the balancing act
that, you know, is implicated in our Constitution.
Ms. Spaulding.
Ms. Spaulding. And there is always the option of going for
a title III criminal warrant if ultimately you are unable to
show a connection with any other person. The hardest thing
about frustrating a lone wolf terrorist attack is not accessing
their communications but finding the lone wolf.
Mr. Baker. FISA is a good tool to use in these situations
because the information we have about this target, this lone
wolf may be from a sensitive source. And we don't want to
necessarily put that source at issue in a criminal proceeding.
We want to use the protections that FISA has which are
constitutional.
Mr. Delahunt. Under a title III proceeding, you could
still, I presume, request the necessary protections to protect
that source. I mean that is not unheard of.
Mr. Baker. There are mechanisms, but they're not as good.
And Congress, in 1978, assessed that there was a better way to
try to protect the national security sources as well as the
methods we are going to use against this type of individual. If
we have somebody----
Mr. Delahunt. There's always--the burden always has to be
placed on the Government if we are going to protect the liberty
and our freedoms. And I guess the question is, is the measure,
is the quantum of the burden sufficient to make it so difficult
that we can't achieve the goal of protecting our national
security.
Mr. Baker. We live with that issue in terms of balancing
security versus liberty every single day in my office. And the
folks who work for me diligently try to achieve both of those
goals at the same time, and it is a difficult job. But what I
would urge you is to give us the tools where there is clarity,
where there is sufficient protection on both sides of that.
And again, as I went through, the difference between a
group of--international terrorist group of two people versus
one person is not that great, and I don't think it is of
constitutional significance. And so I think you should feel
comfortable in allowing this provision to continue.
Mr. Coble. We will start a second round now. Mr. Baker and
Ms. Spaulding have been examined more thoroughly, Ms. Buchanan.
I don't want to ignore you, so I'm going to start with you. How
does providing immunity to those who assist law enforcement
with a FISA order help intelligence investigations and the war
on terrorism?
Ms. Buchanan. Under the criminal law, we have had a
provision in the law which provides immunity to those who
assist law enforcement with obtaining pen registers and trap
and trace orders. What I mean by assist, those individuals who
are working with the communications company who installed the
equipment and those individuals are immune from civil suit as a
result of their participation. We ought to have that same
immunity in the FISA statute to protect individuals who assist
in the installation and application for pen register or trap
and trace. That is what the PATRIOT Act gives us.
Mr. Coble. Some are now arguing that a higher standard
should be used for pen registers. Are you familiar with any of
these proposals and do you agree with them, A? And if you
would, Ms. Buchanan, explain what the relevant standard
requires and why it is applied to a pen register or trap and
trace order rather than probable cause standard.
Ms. Buchanan. The standard is and should be relevance with
respect to this type of information. This information that is
collected is not a search under the fourth amendment.
Individuals have no expectation of privacy in this information.
And that is why the standard is set at a lower standard, which
is relevance. I think there has been a little confusion in the
questioning this morning about what is collected with the pen
register versus a wiretap.
With the pen register, the device is simply collecting the
telephone numbers, the routing information, it is not
collecting the substance of any of the communications. In fact,
the equipment doesn't have that capability. So that is not what
is the subject of collection. And that is why the standard is
set at relevance. With the relevance standard, the Government
simply alleges that the information would be related or
connected to an ongoing investigation, that it is likely to
produce other information. That is the standard. And it is much
lower than probable cause.
When you look at a probable cause standard under the
criminal law, you are dealing with information that has a
higher expectation of privacy and that is why the law requires
a probable cause standard to collect information where there is
a greater expectation of privacy. And because they are very
different, that is why there are different standards recognized
under our law today.
Mr. Coble. Reverting to content, Mr. Baker, if the court
determines that content was collected and used by the
Government under 214, what would the court likely do?
Mr. Baker. In that case, you would have a situation where
we would have disobeyed a court order, and I would gather they
would want to know was this an intentional violation? Was it
inadvertent? How did it happen, what procedures were in place
to make sure it doesn't happen again, who's responsible, what
part of the Government is going to conduct an investigation. We
have, in the Department of Justice, an inspector general. We
have an Office of Professional Responsibility, both at main
Justice and at the FBI. You've got an inspections division at
the FBI and multiple entities within the Government that the
court could look to to find out the facts and take steps to
address it.
I mean, there is this one case from several years ago where
the court had concerns about representations by an agent in
some pleadings and the court barred that person from appearing
before the court again. The court is quite vigilant about
ensuring that what's happening is consistent with the law.
Mr. Coble. Ms. Spaulding, do you want to visit the sections
you have not had a chance to emphasize?
Ms. Spaulding. Thank you, Mr. Chairman. I would like to
talk about section 214 and this relevancy standard. The
question is relevant to what. In the criminal context, it is
relevant to a criminal investigation. In section 214, it's
relevant to an investigation to protect against international
terrorism. It drops all references to any criminal predicate.
Under our Constitution, crimes must be very clearly defined so
that Americans are clearly on notice whether their activities
might violate the law and thereby invite Government scrutiny.
Investigations to protect against terrorism can be based
merely on suspicious activity, which is undefined, and any one
of us might be engaging in it without even knowing it. The
implications of this, I think, are very profound and have not
been thoroughly examined.
Mr. Coble. Ms. Buchanan, I will end with you.
Ms. Buchanan. The American people have every right to be
protected against international terrorism as they do against
criminal violations. The standard is the same and should be the
same because the dangers are equal if not greater in the
terrorism arena.
Mr. Coble. Mr. Baker, very quickly.
Mr. Baker. The definition of international terrorism
includes a nexus to criminal law. So that is in there when you
are dealing with an international terrorism investigation.
Mr. Coble. I thank you. The gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. One of the problems we
have had with some of these provisions is that people when they
talk about them say loudly and clearly terrorism and then
mumble something about foreign intelligence. Foreign
intelligence doesn't have anything to do with crimes. It is
just spying on people. You could be talking about anything
involving conduct of foreign affairs, which may not have any
criminal connection. Now am I right on the lone wolf provision,
you have to have a terrorism connection not just vague foreign
policy?
Mr. Baker. You have to have a terrorism connection. You
could not be an agent of a foreign power unless you were
engaging in international terrorism or activities in
preparation therefor.
Mr. Scott. For the purpose of a lone wolf?
Mr. Baker. Correct.
Mr. Scott. For the other purposes, you could be the agent
of a foreign government having nothing to do with terrorism or
crimes, you could just be negotiating trade deals and stuff
like that?
Mr. Baker. Without commenting on the specifics what we
would be acquiring, you could be an agent of a foreign power if
you are a non-U.S. person who acts as such in the United States
and you're an officer or employee of a foreign government.
Mr. Scott. And have foreign affairs type information
nothing to do with criminal activity?
Mr. Baker. That's correct.
Mr. Scott. That's what I said. People will loudly and
clearly say terrorism and then mumble something about foreign
intelligence, suggesting that we are talking about terrorism.
We are talking about many of these circumstances, things that
have nothing to do with crimes, terrorism or anything else,
just foreign intelligence.
Mr. Baker. That's correct.
Mr. Scott. But for the lone wolf, it has to be terrorism
connected. What about the pen and trap and trace?
Mr. Baker. You have to have a showing--make a showing in
the application that the information that's likely to be
obtained is either foreign intelligence information not
concerning a U.S. person or is relevant to an investigation to
protect against international terrorism or clandestine
intelligence activities.
Mr. Scott. You can get this pen and trap and trace with
things that are not criminally related or crime or terrorism-
related? It can be foreign intelligence related?
Mr. Baker. Foreign intelligence is a defined term in the
statute.
Mr. Scott. Which includes terrorism and weapons of mass
destruction and conduct of foreign affairs, which could be
about anything. So I'm talking about it can involve just about
anything part of it. We know the terrorism is in there. What
else is in there?
Mr. Baker. As you suggested, definitely includes foreign
affairs. That's one of the prongs of foreign intelligence.
Mr. Scott. We're talking about getting this trap and trace
on foreign intelligence?
Mr. Baker. Not concerning a U.S. person.
Mr. Scott. And not concerning any crimes and not concerning
any terrorism?
Mr. Baker. Potentially. That's correct. Because Congress
wanted to regulate all of the Government's----
Mr. Scott. The reason I say this is we scare people to
death, and think we are talking only weapons of mass
destruction when, in fact, we are talking about information
that could have nothing to do with any criminal law at all.
Mr. Baker. In a situation not involving a U.S. person.
Mr. Scott. In the United States?
Mr. Baker. That's correct.
Mr. Scott. The predicate for this FISA wiretap and this
FISA trap and trace could be the desire to get information
about negotiating with another country on conduct of foreign
affairs that have nothing to do with the terrorism or crimes or
anything else that would endanger people in the United States?
Mr. Baker. Well, it's always focused on the foreign
relations of the United States vis-a-vis----
Mr. Scott. Which could include things that are not
terrorism or crime related? You can start these wire taps off
with ``foreign intelligence,'' which is conduct of foreign
affairs, but with the lone wolf, you have to be in terrorism.
For the other, trap and trace, it could be any other thing.
What about wire tapping outside of the United States proper?
Can CIA agents and all that wiretap outside of the United
States? Are we even talking about that?
Mr. Baker. FISA governs surveillance and physical searches
inside the United States.
Mr. Scott. Is it quicker to get a FISA wiretap than a
criminal wiretap?
Mr. Baker. I don't know the statistics on the criminal
wiretaps. But there are provisions in FISA that allow us for
start to collection in an emergency situation based upon the
authorization of the Attorney General. In an emergency
circumstances, there are mechanisms to address that. There is a
mechanism similar to that in the title III area.
Mr. Scott. And if you are in Colorado, it's quicker to come
to Washington, D.C. To go before a FISA court than it is a
magistrate in Colorado?
Mr. Baker. I don't know about that. Faced with a situation
like that, we obviously have secure telephones. The FBI field
office in Colorado would call headquarters and they would call
us at the main justice.
Mr. Scott. Rather than just running over to the magistrate
and get a quick warrant? If you have probable cause that a
crime is being committed and can get information from a
wiretap, why wouldn't you get a criminal warrant?
Mr. Baker. It depends on what you are investigating and
what you're focused on and what tools you want to use that are
at issue and what sources of information you have and what
protections you think that the various statutes are going to
give you with respect to these various areas. And so the FBI
agents look at the investigation they've got and make an
assessment about the various tools they have available to them
and try to decide what to use.
Mr. Scott. We've heard about people for whom you have
evidence that they are gathering up explosives about to blow
something up. What's the barrier to getting a title III
wiretap?
Mr. Baker. Again, these are very fact specific situations.
But FISA was built by Congress to address these kinds of
threats to the national security. And it includes definitions,
time periods, protections against disclosure of information,
and other provisions, including minimization procedures that
fit better in these situations than title III does necessarily.
That's why it would be used in a particular situation versus a
title III.
Mr. Coble. Gentleman's time has expired. The gentleman from
Massachusetts.
Mr. Delahunt. Just an observation to the Chair, Mr. Coble.
We have been having some excellent hearings. And all of the
panels, I think, have been very helpful. I guess my question to
you my friend. We are going at a fairly accelerated pace. And
much of the information that we're getting, I would suggest,
needs some reflection. I understand we're having another
hearing this week--two more. Does the Chair have a time table
for when we might consider a resolution or a bill? Could you
give us some guidance?
Mr. Coble. If the gentleman would yield. I say to the
gentleman, this accelerated schedule is not determined by me.
Mr. Delahunt. I suspected that. If the Chair knows, do we
have--is there a calendar for when the Subcommittee itself
might consider a proposal?
Mr. Coble. If the gentleman would yield further to me. Not
known to me.
Mr. Delahunt. Not known to you.
Mr. Coble. No fixed calendar.
Mr. Delahunt. Because we are really rolling along here and
I would make a request to the Chair and I know you're a
diligent worker, but many of us do not, you know, have your
experience. And maybe if we could slow the pace down in terms
of the calendar itself, it might provide us an opportunity to
consult with many of the witnesses that have already appeared
before us just to provide us with an opportunity to become even
more informed. The Chair might consider passing that request on
up wherever it may go, but I would hope that that the Chair
would consider that.
Mr. Coble. If the gentleman would yield again. I would
convey that and thank the gentleman from Massachusetts.
Mr. Delahunt. I don't think I have--I do have another
question. I'm reading one of these Hill papers here about the
nominee for the United Nations, and there appears to be a
question regarding his inquiry about the names of American
citizens on 10 different intercepts. And I'm not going to ask
you specifically about that, but I guess this goes along with
the question that was posed by Mr. Scott.
In terms of protection of non-U.S. persons who are
referenced in the course of a surveillance, who has access to
that information? Would somebody from the Department of State
have access to that information under a FISA order or would
that simply--only designated officials have access to that
information?
Mr. Baker?
Mr. Baker. Again, you have to keep in mind that every court
order is different--they are all different, but they all
include minimization procedures. So there are restrictions on
the acquisition, retention, and dissemination of U.S. person
communications. And that's the focus, to protect the privacy of
Americans. With respect to who has access, if you have an FBI
surveillance, the FBI in the field office conducts a review of
the material and decides what information is foreign
intelligence information, what information is not. And then it
can write summaries or do other transcripts.
Mr. Delahunt. I understand that. But let me--if an
official, let's say hypothetically, Mr. Bowl was the deputy
Under Secretary for whatever in the Department of State or the
Department of Defense, whatever, and he communicated--
presumably the Attorney General of the United States has access
to this information under a FISA court order, because
presumably it's written in a way that would allow that, the
Attorney General of the United States and/or his designee,
would a high ranking official in another department have access
to that information, i.e., the name of the American citizen?
Mr. Baker. Not directly. If they had some reason to believe
there was some information out there and had a basis to ask for
it, they would submit a request to the agency they think has
the information and the agency would have to make an assessment
whether disclosure of that information to that person would be
consistent with the minimization procedures. And there are
statutory restrictions on the use of FISA information as well.
Mr. Delahunt. I understand statutory restrictions. This is
simply accessing information, however. Would there be, for
example, the need to return before the FISA court to seek a--if
such a request was made, would the--there has been any history
of this, would one of--if there was doubt as to whether the
request fell within the ambit of the minimization that was
issued pursuant to the court order, would it be reasonable to
infer that there would be an additional appearance before the
FISA court to clarify?
Mr. Baker. It could be. The FISA court carefully monitors
the minimization of U.S. Person communications.
Mr. Delahunt. In the report back to FISA, would that
information be disclosed, the individuals who did have--who had
access to that information?
Mr. Baker. Not on a regular basis. Not necessarily, no. But
there are other mechanisms for that. And what would happen, the
agency that requested, if they didn't think it fell squarely
within the minimization procedures, would seek advice from our
office, and we would make a decision as to whether we felt
comfortable or not doing it.
Mr. Delahunt. Have you ever had those kind of requests?
Mr. Baker. I can't think of one off the top of my head.
It's an expectation that sometimes people will read a report
that might reference a U.S. person and might want to know the
name of that person and there are established procedures to
deal with that situation and approval levels and so on that you
go through.
Mr. Coble. I thank the gentleman. Thank you all for being
here and thank you for those in the audience. We live in a
chaotic time, as you all know, folks. I don't think we ever
want to see a repeat of 9/11 when those bastards came over
here, pardon my vernacular--referring to the murderers, of
course. On the other hand, I don't think any one of us wants to
compromise our liberties. It's a delicate line we're
negotiating. And Mr. Baker, since you are in my direct line of
fire, let me go to you. Again, thinking aloud, the President
has the authority grounded in the Constitution to protect our
Nation's security. Based on that responsibility, what did the
Government do prior to 1978, prior to FISA, A? And why was FISA
enacted?
Mr. Baker. Prior to the enactment of FISA, as I understand
it, sort of the beginning of electronic communications,
collection of those kinds of communications for national
security purposes was done pursuant to the President's inherent
authority under the Constitution to collect foreign
intelligence without a warrant. It was done from the beginning
up until 1978 for those purposes without a warrant.
And it was, as a result of, frankly, abuses of that
authority by the executive branch that came to light in the
1970's that resulted in, among other things, the enactment of
FISA in 1978. It takes us from a regime where there was no
congressional legislation to a regime that Congress, as I said
earlier, puts into place, clear standards for who can be a
legitimate target of this kind of collection, requirements to
protect the privacy of Americans and the minimization
procedures and accountability for the individuals who decide to
engage in one of these surveillances and to make sure it is
done for a legitimate national security purpose.
Mr. Coble. We are going to visit this PATRIOT Act time and
again, and as Mr. Delahunt said probably in an accelerated
mode. Thank you, Mr. Scott, Mr. Delahunt, Mr. Conyers and Mr.
Chabot, for attending as well. The Subcommittee very much
appreciates your contribution. In order to ensure a full record
and adequate consideration of this important issue, the record
will be left open for additional submissions for 7 days. Also,
any written questions that a Member wants to submit should be
submitted within this same 7-day period. This concludes the
oversight hearing on the Implementation of the USA PATRIOT Act:
Foreign Intelligence Surveillance Act (FISA), part one. Thank
you for your cooperation and the Subcommittee stands adjourned.
[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
Part II
----------
THURSDAY, APRIL 28, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met pursuant to call, at 9:30 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. Good to have
all of you with us today.
The Subcommittee on Crime, Terrorism, and Homeland Security
will conduct two hearings on the USA PATRIOT Act. At this
morning's hearings, the Subcommittee will examine section 206,
the roving wiretap provision, and section 215, the business
records provision. Both section 206 and 215 amend the Foreign
Intelligence Surveillance Act of 1978, known as FISA, and both
expire on December 31, 2005. These two sections are among the
most controversial. I believe much of the controversy is due to
misinformation about the provisions, and I hope this hearing
will clarify exactly what the law does.
While I expect an in-depth and lively discussion on these
issues, I would like to point out a few things we've recently
learned through our hearings and oversight.
We know, though I am not sure the public is aware of this,
that section 215, the so-called library provision, does not
even mention the word ``library.'' It covers business records.
And yes, section 215 could be used to obtain business
records from a library, but we also know from the Attorney
General's oral testimony to this committee on April 6, that
section 215 has never been used to obtain business records from
a library. Nor has section 215 been used to obtain bookstore
records, medical records, or gun sale records. In fact, no
evidence has been presented to this Subcommittee or to the
Department of Justice's Inspector General of any abuse of 215
for any use.
We also know from the Department of Justice response to
questions from this Subcommittee and full committee that
terrorists are indeed using our libraries so that at some point
section 215 may be needed there.
Section 206 amends the wiretap provision under the Foreign
Intelligence Surveillance Act to allow the wiretap order to
follow the person instead of covering a communication facility.
Thus, when a terrorist uses a cell phone, then throws it away,
uses another phone, throws it away, law enforcement does not
have to get a new order each time.
We also know that this section has been used 49 times, and,
according to the Attorney General, has been effective in
monitoring international terrorists and spies.
Now, folks when I said there's a lot of misinformation
surrounding these provisions, a lot people--well, strike that.
Maybe I shouldn't say a lot people--some people. In fact, some
have even talked to me.
They portray it in this manner: A couple FBI agents riding
around town. Well, let's go get a couple burgers and a
milkshake, and then maybe stop by the FISA Court. Pick up a
couple roving wiretaps and maybe a couple 215 orders and--now,
folks, I don't mean this to be cute, because folks back home
have said this to me, and then maybe go to the library. See
what we can come up with. Maybe share with our friends and
neighbors some of the information we've found. Folks, that's
far a field from what happens. It's difficult to obtain this,
and I want the public to know that.
Having said that, I will now--I now look forward to hearing
from my good friend, the Ranking Member, the gentleman from--
the distinguished gentleman from Virginia, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. Don't give them any
ideas.
Thank you for holding this hearing on section 216 and 215
of the USA PATRIOT Act. These are some of the most
controversial sections of the bill that will come up for
renewal.
They're controversial because of the extraordinary powers
of virtually--virtually unchecked powers that allow Government
to use the--to allow the Government to use to invade the
privacy of individuals. Section 215 is particularly disturbing,
given its breadth of authority, especially because it allows
law enforcement officers to obtain private records with no more
than a representation that it is relevant to foreign
intelligence.
And even though section 505 of the PATRIOT Act is not under
sunset, you really can't talk about 215 without discussing the
same problems with 505. 505 allows a host of private records
and information to be obtained through the issuance by line
level officers of National Security Letters on mere
representation that they are relevant to an investigation of
foreign intelligence.
There need to be no crime, no probable cause of a crime, no
reason to believe that there's a crime, no credible or
particular facts, just representation in the case of a 215 and
the FISA Court has no choice but to issue the order for the
production of records.
In the case of the National Security Letters, there's no
court issuance or oversight, just a line officer's issuance of
the letter in terms of the requirements of law.
Now, all of this is done in secret, and no explicit right
to challenge the orders with a permanent gag order on the
keepers' of the records, even to the extent apparently of
consulting with an attorney. With our liberalized information
sharing rules, this information can be distributed all over
town to various agencies and this means your neighbors who may
be law enforcement agents or Defense Department officials, may
know a lot more about you private medical, organizational
affiliation, reading or video viewing habits than you ever
imagined.
Now, with respect to section 206, the FISA roving wiretaps,
I've often noted the difficulties that I see. Again, under the
law no crime need even be alleged, and under the John Doe
wiretap no person or particular device need to be shown, and in
either case, no effort has been made to ascertain whether or
not the target is actually using the device before
communications are actually intercepted.
And again, all of this is in secret; secret court with
limited oversight and reporting requirements when compared to
the criminal wiretap process. And the Department of Justice
witnesses often use the powers extended on the criminal side to
justify the same powers on the FISA side.
However, they don't call for the same oversight and
reporting requirements as a criminal warrant, and I think we
need to pay a lot more attention to as we consider renewing
these powers.
So, Mr. Chairman, I look forward to the testimony of our
witnesses for enlightenment on why we should consider renewing
these extraordinary powers and, if so, under what circumstances
and conditions, and I look forward to working with you as we
try to implement those recommendations.
Mr. Coble. I thank the gentleman. We've been joined by the
Ranking Member of the Full Committee, the distinguished
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Good morning, Chairman Coble.
Mr. Coble. Good morning, sir.
Mr. Conyers. And Members of the Committee welcome the
panel. And this is one of the important Subcommittee hearings
in which this review of the PATRIOT Act is so important, and
I'm glad we have the witnesses here.
I just want to say one word about the executive director of
the American Civil Liberties Union Chief Legislative Council
because that organization has done so much important work, not
alone. There are plenty of other organizations with them, but I
single them out this morning.
But there are three considerations here. One is whether we
need John Doe taps and roving taps. To me, that's a critical
consideration. And what are the safeguards we need to put
around it. The thing of while National Security Letters have
been left off the oversight list of the committee. I hope that
some of our witnesses today will tell us about their use. It
appears from a redacted Freedom of Information Request that
this provision has been used lots of times, hundreds of times.
The less famous part of section 215, National Security
Letters, are dangerous because in addition to adding a complete
gag order on the recipient, they're issued without any
oversight, even from the FISA Court.
And because DOJ admits getting information from libraries,
I suspect that these letters may be the source and we must have
more information about them.
And finally, section 215, allowing the Government to
secretly get anything from any business only upon showing a--
the showing of relevance to a terror or intelligence
information--only on showing of relevance to terror information
or intelligence information. And as super secret as usual, DOJ
refuses to explain how this section has been used. We're the
lawmakers. It seems like the courtesy should be given to us,
and if for any reason, it can't be done public, we're all
cleared for the most secret information that's in our
Government. It does confirm it has been used 35 times. The
information comes on the eve of the sunset. After 3 years of
pressing national security that required a secret
classification.
So these are the areas that I'm concerned with and I
reiterate my concern that the committee has left, in my
judgment many important terror-related policies off its
oversight schedule--the practice of rendition to the abuse of
the material witness statute, to unsuccessful racial profiling.
This committee is, in my view--and I want to work on trying to
get this corrected before this series of hearings ends--is
ignoring the most pressing matters within its jurisdiction. We
can't limit our oversight to a few sections of the code that
are due to expire. There's plenty of things to examine that
don't have any expiration date, and so the Department has
shifted the weight of its terror pursuit to other authorities,
and or even in the absence of lawful authority at all. So, if
we're truly to do our constitutional duty of overseeing the
Executive's use of criminal and intelligence laws, I beg this
committee to look at all of these issues, and I thank you for
this opportunity, Chairman Coble.
Mr. Coble. I thank the gentleman. We've been joined by the
distinguished gentleman from Arizona, Mr. Flake, and the
distinguished gentleman from Massachusetts, Mr. Delahunt.
It's the practice, I say to the panel of the Subcommittee
to swear in all witnesses appearing before it. So, if you all
would please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
has answered in the affirmative, and you all may be seated.
Our first witness today is Mr. Kenneth Wainstein--is that
correct, Mr.?--United States Attorney for the District of
Columbia. Prior to joining the U.S. Attorney's Office, Mr.
Wainstein served as general counsel of the FBI and as director
of the Justice Department's Executive Office for the U.S.
Attorney. He is a graduate of the University of Virginia, and
the Boalt Hall School of Law at the University of California at
Berkeley.
Our second witness is Mr. James A. Baker, who's been with
us before. Mr. Baker, good to have you back. I thank Mr. Baker
for graciously agreeing to return as a witness for a second
time during this series of oversight hearings on the USA
PATRIOT Act. Mr. Baker has been in the Council for Intelligence
Policy in the Office of Intelligence Policy and Review at the
Department of Justice since 2002. He served as acting counsel
from May 2001 until January 2002.
Prior to that, he was OIPR's Deputy Counsel for
Intelligence Operations. Prior to joining OIPR, he served as a
Federal prosecutor, handling numerous international white
collar crimes for the Criminal Division of the Department of
Justice. Mr. Baker was awarded his undergraduate degree from
the University of Notre Dame, and his J.D. and M.A. from the
University of Michigan.
Our next witness is Mr. Robert Khuzami, former Assistant
United States Attorney in the U.S. Attorney's Office for the
Southern District of New York. While in that office, he served
in the office's terrorism unit. Mr. Khuzami clerked for the
Honorable John R. Gibson of the U.S. Court of Appeals for the
8th Circuit in Kansas City, Missouri. Mr. Khuzami attended the
University of Rochester and the Boston University School of
Law.
Our final witness today is Mr. Gregory T. Nojeim, the
Associate Director and Chief Legislative Counsel of the
American Civil Liberties Union's Washington National Office.
And at this time, on behalf of the Subcommittee, I would like
to congratulate Mr. Nojeim in advance because I am told that
next you will become the acting director of that office, so we
congratulate you, Mr. Nojeim.
Prior to joining the ACLU, Mr. Nojeim served as Director of
Legal Services of the American-Arab Anti-Discrimination
Committee. He was graduated from the University of Rochester
and the University of Virginia's School of Law.
Now, as we have told you all previously, we like to
practice the 5-minute rule here. We have examined your written
testimony that will be reexamined. So the panels that appear
before you all on your desks there, when the amber light
appears, you will have 1 minute to wrap up, and no one is going
to be keel hauled if you violate the 5-minute rule, but if you
could stay within--when the red light appears that indicates
the 5 minutes have expired.
Mr. Wainstein, we will start with you, sir.
TESTIMONY OF KENNETH L. WAINSTEIN,
INTERIM U.S. ATTORNEY, DISTRICT OF COLUMBIA
Mr. Wainstein. Thank you, and good morning. My name is Ken
Wainstein. I'm the U.S. Attorney here in the District of
Columbia.
Mr. Chairman, Ranking Member Scott, and Members of the
Subcommittee, thank you very much for inviting me here today to
discuss two provisions of the USA PATRIOT Act, sections 206 and
215 that are critical to our counter terrorism and counter
intelligence efforts.
These two sections are scheduled to sunset at the end of
this year. If this is allowed to happen, we will find ourselves
in the position where tools available to law enforcement in the
fight against drugs, organized crime, and child pornography
would be denied our national security investigators who are
striving to protect our country against terrorism and
espionage. Such an outcome would be a serious mistake, and,
therefore, I am here today to ask you to make permanent
sections 206 and 215 of the USA PATRIOT Act.
Section 206 allows the FISA Court to authorize roving quote
unquote ``roving surveillance'' of a foreign power or an agent
of a foreign power, such as a terrorist or spy.
Since 1986, we've had the authority to use roving wiretaps
to investigate regular crimes, and this tool has proved
critical to our efforts against sophisticated criminals who
regularly switch phones to avoid electronic surveillance.
In a case out of Florida, for example, our prosecutors and
agents investigating a dangerous cell of Colombian drug dealers
had gotten 23 separate wiretaps against cell members and
leaders, but were failing to make a strong case because of the
cell's practice of constantly cycling through cell phones.
Our people ultimately cracked the case when they got a
roving wiretap that allowed them to continue surveillance as
the cell members changed phones, and the suspects were
ultimately arrested and convicted of distributing over a
thousand kilograms of cocaine in our country.
In another drug investigation, in Chicago, investigators
obtained roving surveillance authority after establishing that
the drug lord target was purchasing blocks of prepaid cell
phones and throwing each phone after a short period of use. In
the course of about 7 months, this target went through at least
25 cell phones, thereby justifying the use of a roving wiretap
under the criminal electronic surveillance statute.
Before the USA PATRIOT Act, however, national security
investigators couldn't utilize such wiretaps in international
terrorism or espionage investigations. Experience shows that
terrorists and spies are every bit as crafty at avoiding
surveillance as common criminals.
To see that, we need look no further than the Al-Qaeda
training manual that warns members that quote, ``communication
can be a knife dug into our back if we do not take the
necessary security measures.'' Close quote. And that manual
directs Al-Qaeda members to undertake a variety of measures to
counter our electronic surveillance efforts.
With no roving authority for national security
investigators, the terrorists and spies used to have the
advantage, and they could stay one or two steps ahead of our
investigators by switching phones.
Thankfully, section 206 balanced the playing field by
authorizing the use of roving wiretap authority in national
security investigations. Some have expressed concerns that
wiretaps, roving wiretaps, somehow open the door to
unconstitutional intrusion into our privacy.
This concern is best addressed by looking at the various
safeguards in the statute that protect against abuse and
overreaching.
First, we can only get a roving wiretap if we show probable
cause to believe that the target of a roving surveillance order
is either a foreign power or an agent of a foreign power, such
as a terrorist or spy. To make that showing, we must know the
target's name or else describe the target with sufficient
specificity to convince the FISA Court that there's probable
cause to believe that that target is a foreign power and agent
of a foreign power.
We have to show that that target is taking action, such as
switching phones, that may have the effect of thwarting
surveillance. And finally, roving surveillance under 206
carries all the court approved minimization procedures that
limit all FISA surveillance.
Because of these procedures and safeguards, all appellate
courts that have heard challenges to roving wiretaps have
upheld their constitutionality.
Section 215. This section provides national security
investigators with the authority to ask the FISA Court to order
the production of the same kind of tangible things, such as
business records, that prosecutors have long been able to
acquire through grand jury subpoenas and criminal
investigations.
As a prosecutor, I can tell you from first hand experience
that the ability to obtain records with grand jury subpoenas is
an essential tool for law enforcement. Investigating crime
without subpoena power would be like Tiger Woods playing the
Masters without a putter.
Before the USA PATRIOT Act, however, it was difficult for
national security investigators to obtain business records, as
the FISA Court could only authorize orders for certain
categories of records.
For example, an agent prior to the PATRIOT Act who was
investigating a terrorism suspect would not have been able to
get a FISA Court order to obtain records showing that that
suspect purchased bulk quantities of fertilizer to produce a
bomb because a feed store is not a quote ``common carrier,
public accommodation facility, physical storage, or rental
facility,'' the entities for which the old law authorized the
use of FISA Court orders.
Section 215 remedied that glaring problem by authorizing
investigators to request the production of any tangible things
that are relevant to the investigation. In my experience as a
prosecutor, I view section 215 as a commonsense investigative
tool. I recognize, however, that the provision has been
subject--the subject of concern by many across the country.
Once again, I believe part of the problem here is that
people don't understand the safeguards that are in the statute.
215 has a number of these safeguards, which we'll discuss
today.
Unlike grand jury subpoenas, it requires prior court
approval. It protects against the use of 215 orders to
investigate activities based solely on the exercise of first
amendment rights. They have a narrow scope, and they are
subject to congressional oversight.
Like 206, section 215 fully safeguards privacy while
providing us the tools we need to protect our country against
international terrorists and spies.
Given the threat these individuals pose to our nation, I
urge Congress to allow us the continued use of these vital
tools.
[The prepared statement of Mr. Wainstein follows:]
Prepared Statement of Kenneth L. Wainstein
Mr. Coble. Thank you, Mr. Wainstein. Mr. Baker.
TESTIMONY OF JAMES BAKER, COUNSEL FOR INTELLIGENCE POLICY, U.S.
DEPARTMENT OF JUSTICE
Mr. Baker. Thank you, Chairman Coble, Ranking Member Scot,
and Members of this Subcommittee.
I am pleased to be again before you to discuss the
Government's use of the authorities granted to it by Congress
under FISA, including amendments to FISA and the USA PATRIOT
Act.
As I mentioned on Tuesday, these provisions have made a
critical contribution to our ability to protect the national
security of the United States.
For the benefit of Members who were unable to attend on
Tuesday, my office conducts oversight of the intelligence and
counter intelligence activities of executive branch agencies,
including the FBI.
We prepare all FISA applications and represent the United
States before the FISA Court.
I report directly to the Deputy Attorney General. I'm a
career member of the senior executive service, and not a
political appointee.
Again, rather than simply read my written statement into
the record, I'd like to make a few general points about FISA,
and amplify on some of my prior comments from the other day.
As I mentioned the other day, the purpose of FISA was to--
as enacted in 1978--was to provide legislative authorization
for and regulation of electronic surveillance conducted within
the United States for foreign intelligence purposes. FISA was
not intended to prohibit collection of important intelligence
information, but to subject such collection to statutory
procedures.
Over the years, Congress has expanded the scope of FISA to
create mechanisms for the Government to obtain separate
authorizations for pen registers, searches, and to obtain
access to business records and other tangible things.
Prior to the enactment of FISA, the Executive Branch
conducted electronic surveillance to collect foreign
intelligence information without a warrant, based upon the
President's inherent constitutional authority to do so.
In the 1970's, however, abuses of domestic national
security surveillance were disclosed. As a result, Congress
looked for an appropriate mechanism to safeguard civil
liberties, consistent with the needs of national security.
Since the enactment of FISA, 27 years ago, I submit that
there has been no repeat of the abuses of the past. I believe
this is so for several reasons.
First, there are now clear standards for determining who
may be a legitimate target of a FISA surveillance or search.
The only authorized targets of FISA full content collection are
foreign powers and agents of foreign powers, both of which are
defined terms in the act.
Similarly, FISA only permits the use of other collection
activities, such as orders for tangible things, when there is a
sufficient nexus between the information that will be collected
and a legitimate intelligence investigation.
When such an investigation involves a U.S. person, it
cannot be based solely upon protected first amendment
activities.
Second, there is accountability for authorizations for
national security collection. FISA includes several mechanisms
to ensure written accountability within the Executive Branch
for the decision to engage in foreign intelligence collection,
including a requirement that the Attorney General or his deputy
personally sign each full content application. This serves as a
check on Executive Branch arbitrariness.
In addition, the Attorney General must fully inform the
intelligence committees of both Houses of Congress on our use
of FISA on a regular basis.
Third, there is judicial oversight of our actions. Whenever
a surveillance or search for foreign intelligence purposes may
involve the fourth amendment rights of any U.S. person,
approvals for such collection must come from a neutral and
detached Federal judge. Moreover, even when fourth amendment
rights are not implicated, such as for third party business
records, FISA still requires approval by a Federal judge or a
magistrate before the Government may engage in such collection.
Finally, FISA contains other provisions to protect the
privacy of Americans, most notably including court-ordered
minimization procedures. The Government may only conduct a full
content surveillance or search when there are adequate
procedures in place to minimize the intrusion into the privacy
of Americans. This includes minimization of the acquisition,
retention, and dissemination of information about U.S. persons
obtained pursuant to full content collection under FISA.
In conclusion, as we proceed with our discussion today, we
must remember that it's our collective fundamental task to
determine how best to protect the national security of the
United States in a manner consistent with the Constitution. We
must be mindful, as the Supreme Court stated in the Keith case
in 1972, that unless Government safeguards its own capacity to
function and to preserve the security of its people, society
itself could become so disordered that all rights and liberties
would be endangered.
I am proud to be here today to represent the dedicated men
and women OIPR who work diligently everyday to do their part to
protect both the national security and the Constitution of the
United States, and to enforce the laws as enacted by Congress,
especially FISA. With these principles in mind, I'm happy to
answer any questions that the committee may have.
[The prepared statement of Mr. Baker follows:]
Prepared Statement of James A. Baker
Mr. Coble. Mr. Baker, you've been on the Hill several
times. You know how to beat that red light. You did it again.
Mr. Baker. Thank you, sir.
Mr. Coble. Mr. Khuzami, good to have you with us, sir.
TESTIMONY OF ROBERT KHUZAMI, FORMER ASSISTANT
U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK
Mr. Khuzami. Thank you. Chairman Coble, Ranking Member
Scott, Members of the Subcommittee, it's an honor to testify
before you today in a matter of such importance to our national
security.
For nearly 12 years, I was an Assistant United States
Attorney in the U.S. Attorney's Office in the Southern District
of New York, and spent a significant amount of time working on
terrorism cases. I was a member of the team that in 1995
prosecuted Sheik Omar Abdel-Rahman, the blind cleric and head
of the Egyptian Islamic Group, and 11 others for conducting a
war of urban terrorism against the United States. The acts of
that group included among other things the 1993 bombing of the
World Trade Center; the murder in 1990 of Rabbi Meir Kahane,
the head of the Jewish Defense League; and a conspiracy to
carry out a day of terror in New York, the planned simultaneous
bombing of various New York City landmarks, including the
United Nations complex, the Lincoln and Holland Tunnels, and
the FBI's New York headquarters.
I was also involved in assisting in the supervision of the
U.S. Attorney's Command Post in lower Manhattan following the
events of 9/11.
I am here today to support reauthorization of sections 215
and 206 of PATRIOT Act.
I'll confine my remarks this morning to section 215.
Some view it as a radical extension of Government authority
that permits unprecedented snooping into the private reading
habits of Americans and threatens to sweep innocent Americans
into secret terrorism investigations.
My experience teaches me otherwise.
Section 215 simply and modestly is designed to permit the
Government to collect standard business records from third
parties relevant to foreign intelligence or terrorism
investigations. These are the same records that prosecutors
across the country every day routinely obtain in drug, and
larceny, and fraud, and corruption investigations.
They're credit card receipts. They're bank statements.
They're hotel bills. They're leases, and so on. There is
nothing unusual or nothing accusatory of asking innocent third
parties to produce such records in terrorism investigations.
Second, terrorists use libraries. The 9/11 Commission found
that to be case that some had used Internet access in a
Hamburg, Germany library. A recent espionage prosecution
revealed that a spy had used computer terminals at various
public libraries to send classified information. An Al-Qaeda
terrorist used library computer terminals to send electronic
messages.
The Unabomber, Ted Kaczynski, in a criminal investigation,
was captured in part when the police obtained his library
records and learned that he had borrowed from his local library
obscure books that were cited in his widely distributed
Manifesto.
Third, section 215 neither targets nor exempts library
records. Nor has it been used for that purpose, as the Chairman
has pointed out.
This doesn't mean that section 215, however, should be
amended to exempt libraries and bookstores, for their records
could be critical in a terrorism investigation. Lack of use is
not the same thing as lack of importance. In a terrorism case,
even a single missed opportunity or misstep can have
catastrophic consequences. That is simply not the case in
criminal investigations.
Fourth, section 215 provisions do protect the privacy and
civil liberties of Americans. It can't be used to investigate a
U.S. person based solely on first amendment activities and not
at all to investigate domestic terrorism. The Foreign
Intelligence Surveillance Court must approve section 215
applications.
Fifth, section 215 properly expanded the type of records
obtainable in terrorism investigations beyond what had been the
law--simple lodging or vehicle rental or storage facilities.
This corrected the anomaly that allowed the Government to
obtain a would-be terrorist's motel records, but not receipts
evidencing purchases of explosives or precursor chemicals or
books on how to manufacture explosives.
Sixth, section 215 also eliminated the previous requirement
that the Government provide specific articulable facts that are
the subject--that the subject of the investigation was an agent
of a foreign power. As a legal matter, this standard only
applies where there exists some legally recognized privacy
interest, and there is no such interest in section 215 records.
There may be some circumstances where such a strict
standard should apply even though there's no privacy interest
at stake, but national security is not one of those instances.
It is where the public interest in Government access, in my
view, is most urgent.
Next, the Department of Justice interprets and has endorsed
amendments that would allow those getting section 215 orders to
consult with attorneys and challenge the order and its scope
before the FISA Court. That change protects citizens against
improper use of section 215.
Lastly, there has been some concern expressed about rogue
agents, agents who may be inclined to violate the civil
liberties of Americans by looking for ways to circumvent the
law in order to learn what we read and what organizations we
belong to. The agents and translators and surveillance
specialists and analysts that I worked with were dedicated,
talented, and law abiding. And there are many procedures
designed to prevent that from happening.
But even if you can't eliminate the occasional rogue, the
empirical evidence from the Department of Justice Inspector
General establishes that not a single case of abuse of civil
rights or liberties from the PATRIOT Act has been documented.
I strongly urge the committee to reauthorize section 215.
I'd be happy to answer any questions.
[The prepared statement of Mr. Khuzami follows:]
Prepared Statement of Robert S. Khuzami
Chairman Coble, Representative Scott, and members of the
Subcommittee on Crime, Terrorism and Homeland Security, thank you for
inviting me here this morning. It is an honor to testify before you,
particularly on a matter of such importance to our national security.
I am currently a lawyer in private practice in the New York area.
For nearly 12 years, I was an Assistant United States Attorney in the
United States Attorney's Office for the Southern District of New York,
and spent a significant amount of time working on counterterrorism
cases. From shortly after the February 26, 1993 bombing of the World
Trade Center through early 1996, I was a member of the team that
prosecuted Sheik Omar Abdel Rahman--the blind cleric who led the
Egyptian-based Islamic Group and played a key role in the 1981
assassination of President Sadat--and eleven others for conducting a
war of urban terrorism against the United States. Their acts included,
among other things, the WTC bombing, the 1990 murder of Rabbi Meir
Kahane (the founder of the Jewish Defense League), plots to murder
various political and judicial leaders, and a conspiracy to carry out a
``Day of Terror''--the simultaneous bombing of various New York City
landmarks, including the United Nations complex, the Lincoln and
Holland Tunnels (through which thousands of commuters travel daily
between lower Manhattan and New Jersey), and the Jacob K. Javits
Federal Building that houses the FBI's New York Headquarters.
Following the events of 9/11, I assisted in supervising the U.S.
Attorney's Command Post in lower Manhattan, where hundreds of law
enforcement and intelligence personnel worked tirelessly to investigate
that attack and to prevent another.
The changes set forth in the PATRIOT Act, as well as the events of
9/11 in general, have brought about significant public debate about the
appropriate balance of civil liberties, privacy and security. That
debate is undeniably healthy, a fact which Congress recognized when it
sunsetted certain PATRIOT Act provisions in order to provide an
opportunity for an informed evaluation of their impact.
Two PATRIOT Act provisions are being considered this morning--
Section 206, the so-called ``roving wiretap'' provision and Section
215, the access to records provision.
I approach my analysis from two perspectives. The first is that of
an ex-prosecutor of terrorism crimes, who believes firmly that we must
fully identify and utilize every lawful tool to prevent terrorist
attacks and capture those involved. The second is as an American
citizen who recognizes the fundamental importance of the privacy rights
and civil liberties of all Americans. Balancing these two perspectives,
I conclude that, with two amendments recently embraced by the
Department of Justice (``DOJ''), Sections 215 and 206 should be
reauthorized.
SECTION 215
Section 215 authorizes the Foreign Intelligence Surveillance Court
to order the production of ``tangible things (including books, records,
papers, documents and other items)'' as long as they are ``sought for''
an ``authorized investigation to obtain foreign intelligence
information not concerning a United States person or to protect against
international terrorism or clandestine intelligence activities.'' In
its most common application, Section 215 permits the government in
terrorism investigations to obtain business records held by third
parties, including those held by banks, hotels, landlords, credit card
companies and, yes, libraries and bookstores. Somewhat surprisingly,
Section 215 is viewed by many Americans as a radical extension of
government authority that permits unprecedented snooping into the
library records and private reading habits of Americans, and threatens
to sweep up innocent Americans into secret investigations of terrorist
activity. It has caused such angst amongst librarians that it has been
labeled the ``Angry Librarians Provision.''
Four points need to be made. First, Section 215 permits a court to
order the production of standard business records from third parties.
These are the same records that prosecutors across the country
routinely obtain every day in drug, larceny, fraud, corruption and all
manner of standard criminal investigations. They include credit card
receipts, bank statements, hotel bills, leases, subscriber information
for phones, and the list goes on and on. There is nothing unusual or
accusatory about requiring third parties possessing these records--
innocent third parties all of them--to produce them in a terrorism
investigation of another person. That is all Section 215 does.
Second, Section 215 is agnostic about libraries and bookstores--it
neither targets nor exempts them, and the word ``library'' is nowhere
mentioned in its text. In fact, rather than aggressively use Section
215 to collect information about library patrons, as some have feared,
the government recently reported that it has obtained Section 215
orders on 35 occasions, but never once for library records. Presumably,
this reflects the fact that library records are rarely relevant to
terrorism investigations, a fact that should assuage its critics.
Third, terrorists use libraries. The 9/11 Commission found that
some of the 9/11 conspirators used Internet access through a Hamburg,
Germany library. A recent espionage prosecution revealed that a spy
used computer terminals at various public libraries to send classified
information. An Al Qaeda terrorist used library computer terminals to
send electronic messages. Terrorists and their sympathizers also
create, collect and disseminate writings and speeches that train,
recruit and incite others to participate in terrorist acts. In the
Blind Sheik prosecution, for example, evidence consisting of bomb-
making manuals, including pages containing the fingerprints of co-
conspirators, was introduced at trial. In his written sermons, the
Blind Sheik extolled the virtues of violent jihad against the United
States with ``the sword, with the cannon, with the grenades and with
the missile,'' and urged his followers to embrace the terrorist label:
Why do we fear the word ``terrorist?'' If the terrorist is the
person who defends his right, so we are terrorists. And if the
terrorist is the one who struggles for the sake of God, then we
are terrorists. . . . They may say ``he is a terrorist, he uses
violence, he uses force.'' Let them say that.
It is for this reason that library records, writings and other
literature have long been available to criminal investigators through
the use of a grand jury subpoena. The ``Unabomber,'' Ted Kaczynski, was
captured based on a tip from his brother, who thought he recognized the
writing in the Unabomber's ``manifesto'' as that of his brother. Law
enforcement corroborated the brother's suspicion in part by examining
library records, from which they learned that Kaczynski had checked out
little-known books referenced in the manifesto. Section 215 simply
extends to terrorism investigations the same authority available to
criminal investigators.
Fourth, it does not follow that because the government's has not to
date used Section 215 authority to obtain library records, that Section
215 should sunset, or be amended to exempt libraries and bookstores.
This would turn libraries into sanctuaries, where would-be terrorists
could communicate with their cohorts without fear of detection. This is
not mere speculation--an Al Qaeda terrorist reportedly used library
computer terminals to send messages to his associates around the world
specifically because he knew the digital records were deleted nightly,
thus concealing his activity. Unfortunately, some library
representatives are creating de facto sanctuaries by ordering daily
shredding of library log-in and other records, in response to misplaced
fears about Section 215.
This ``use it or lose it'' argument is also specious because it
equates lack of usage with lack of importance. The mere fact that
Section 215 has not been ``used'' historically to obtain information
from libraries or bookstores does not mean that such authority could
not be critically important in the next case. More so than criminal
prosecutions, terrorism plots, however speculative or nascent, must be
zealously pursued by investigators armed with the option of using the
fullest arsenal of lawful investigative tools. That is because even a
single missed investigative opportunity or misstep can have
catastrophic consequences. In contrast, in criminal investigations, for
example, it is unfortunate but not fatal if before a stockbroker is
arrested, he executes one more stock purchase using inside information.
That is not being falsely alarmist; the horrific consequences of the
detonation of a dirty bomb over a major urban center, or the Blind
Sheik's plan to bomb multiple New York City landmarks simultaneously,
are undeniable.
In sum, the four points establish a compelling case for Section 215
reauthorization. They show that Section 215 is not about libraries, but
provides for routine document collection in terrorism cases; that as
far as libraries are concerned, terrorists use them and library records
can provide evidence of that; and that the catastrophic consequences of
a successful terrorist attack demand that we have available all lawful
investigative tools.
In addition to these points, the provisions of Section 215 should
mollify critics, since they set forth a sensible framework to permit
intelligence agents to obtain business records. Section 215 requires
the government to certify that the records are ``sought for an
authorized investigation to obtain foreign intelligence information
[not against a United States person] . . . to protect against
international terrorism or clandestine intelligence activities.'' The
DOJ interprets this provision as requiring that the records be
``relevant'' to such investigations, and has endorsed an amendment to
that effect. In recognition of First Amendment concerns, Section 215
cannot be used to conduct an investigation based solely on the
activities protected by the First Amendment.
The Foreign Intelligence Surveillance Court must approve Section
215 applications. While the level of that judicial review is not high,
it is appropriate given the type of records under consideration in
Section 215 proceedings. Business and library records are preexisting
documents that belong, will be given, or are available, to third
parties--banks, landlords, rental car agencies and even librarians--and
thus persons lack a reasonable expectation of privacy in them. For that
reason, they are obtainable in a criminal investigation with a grand
jury subpoena alone, which is issued without judicial review or
supervision. From the perspective of judicial review, Section 215
provides more protection, not less, for library patrons than they enjoy
in parallel criminal proceedings involving the same records.
To be sure, Section 215 expanded the government's pre-PATRIOT Act
authority to obtain records in terrorism cases. This change was
overdue, since the prior law was unnecessarily restrictive. Whereas
Section 215 now permits the government to obtain with court approval
all ``tangible things (including books, records, papers, documents and
other items),'' the prior provision limited the government to obtaining
records from lodging and vehicle rental and storage facilities. Again,
criminal investigators have long been permitted to obtain the broader
range of records now provided for in Section 215. Comparisons with
criminal investigations aside, the expansion of authority under Section
215 makes sense in its own right, since it would be irrational, for
example, to permit the government in a terrorism investigation to
obtain under Section 215 a would-be terrorist's motel records, but deny
it the ability to obtain receipts evidencing purchases of fertilizer or
precursor chemicals, or to learn that he obtained books on how to
manufacture explosive devices or detect surveillance.
Another expansion of authority in Section 215 was the elimination
of the requirement that the government provide ``specific articulable
facts'' that the subject of the investigation was an ``agent of a
foreign power.'' Critics assert that elimination of this particularized
showing allows the government to use Section 215 to obtain records from
persons without showing that they relate to a real terrorist or spy. Of
course, as noted above, the third-party records at issue here do not
implicate a recognized expectation of privacy. The government should
generally be required to make a particularized showing only in
circumstances where this is necessary to overcome some legally
recognized privacy interest. There may be some instances where a
departure from that general rule is warranted, but national security is
not one of them--it is where the public interest in government access
is most urgent. Leaving that aside, this change recognizes the reality
that targets of terrorism investigations are trained to operate through
multiple aliases and identities. It would serve no purpose to delay
obtaining what might be records critical to uncovering a terrorist plot
simply because the target's real name, or associational connections,
has not yet been ascertained. Evidence of the purchase of detonators is
equally relevant to preventing a terrorist plot, regardless of whether
the government yet knows that the purchaser has ties to Al Qaeda. Once
again, elimination of the requirement that a particularized showing be
made places terrorism investigations on the same footing as criminal
investigations, where no such showing is required to obtain the exact
same records.
Critics cite excessive confidentiality--a ``gag order''--as another
flaw in Section 215. It prohibits persons receiving Section 215 orders
from disclosing to third parties those orders or that the FBI has
sought or obtained them. Section 215 detractors suggest that the threat
of government overreaching in Section 215 would be less troubling if
the statute allowed for more transparency, such that the public could
understood what records the government sought and why. Critics also
contrast Section 215's confidentiality provision with the grand jury
process, where they claim the recipient receives notice of the subpoena
and can move to quash it in court.
It is unassailable that real and potentially catastrophic harm can
result from the premature disclosure of a terrorism investigation. I
agree, however, that this risk does not justify barring recipients of
Section 215 orders from consulting with attorneys, and from challenging
the order before the Foreign Intelligence Surveillance Court. The DOJ
has publicly agreed with this position. If such consultation and
challenge were permitted, it would place Section 215 proceedings on a
par with grand jury proceedings, where the subpoena recipient obviously
knows of its existence and can challenge it in court, but at the same
time may be prohibited from disclosing its existence to others.
Beyond this amendment, however, the confidentiality provisions of
Section 215 should not be disturbed. You do not want potential
terrorists to know you are investigating them or are aware of their
plans. A leak could cause conspirators to accelerate the plot to a
point where authorities are less prepared to prevent it or protect
American lives. Or terrorists might abandon the plot, destroying
evidence and taking flight, which would hinder prevention, capture and
prosecution. The plot might later resurface, at a point when we are
less prepared and more vulnerable. Each and all of these scenarios
present a missed opportunity to protect innocent Americans from harm.
Premature disclosure also risks harm to agents, witnesses and
undercover operatives. Against this risk of harm must be weighed the
interests that are served from permitting the recipient of a Section
215 order to disclose it to persons other than an attorney. Whatever
that interest is, it does not in my view outweigh the risk that flows
from wrongful disclosure.
Some Section 215 criticisms assume the existence of large numbers
of ``rogue agents,'' who are characterized as inclined, given the
opportunity, to violate the civil liberties and privacy rights of
Americans by searching for and exploiting legal and administrative
loopholes to browse through their reading materials and subscription
and membership lists. This hypothetical rogue agent then becomes, so
the argument goes, the justification for additional Section 215
restrictions. It is not apparent to what extent, if at all, such rogue
agents exist. As Andy McCarthy wrote, agents ``generally lack
voyeuristic interest in the public's reading and viewing habits . . .
and voluminous information streams and finite resources leave no time
for this sort of malfeasance.'' \1\ The agents, analysts, translators
and surveillance specialists with whom I worked were dedicated,
talented and law-abiding. And the gauntlet of administrative
guidelines, directives, policies, laws and committees applicable to the
FBI and DOJ, as well as congressional and judicial oversight, all deter
rogues by providing training, oversight, and a mechanism for redress
and discipline.
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\1\ Patriot Debates: A Sourceblog for the USA PATRIOT Debate
(available at http://www.patriotdebates.com/214-and-215)
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Even assuming rogues present the threat identified by Section 215
critics, it hardly follows that the restrictions they suggest would
have the desired effect. Those determined to break rules are not easily
deterred, and the real impact of such restrictions may be to
unnecessarily burden the conscientious, law-abiding agent trying to do
his job effectively. In the end, the best response to the ``rogue
agent'' concern is the empirical evidence--according to the DOJ's
Inspector General, who was required under Section 1001 of the PATRIOT
Act to investigate complaints of abuse of civil rights and liberties
under the Act, there have been no documented cases of abuse of civil
rights or liberties from the PATRIOT Act in the more than three and
one-half years since its passage.
In sum, Section 215 orders are useful investigative tools in
combating terrorism. Most of what the statute permits is already
available in criminal investigations, and any differences either make
good investigative sense and, given the DOJ's willingness to consider
two amendments, do not threaten the legitimate privacy and civil
liberty interests of Americans.
SECTION 206
Section 206 of the PATRIOT Act provides for so-called ``roving''
wiretaps and other electronic surveillance in foreign intelligence and
counterterrorism investigations. Prior to PATRIOT, once having obtained
the approval of the Foreign Intelligence Surveillance Court for a
wiretap, agents had to return to that Court each time the subject of
that surveillance switched phones, in order to amend the order to
direct the new electronic communications provider to give the technical
assistance necessary to install and maintain the new wiretap. Due to
concerns that targets were rapidly changing phones to avoid detection,
including prior to important conversations and meetings, Section 206
eliminated the need for agents to return to the Court each time a
target switched devices. It accomplished this by permitting the
government, upon a showing that the subject is taking steps to thwart
surveillance, to include in the original order a general directive that
any electronic communications provider extending services to the target
in the future must provide the necessary technical assistance.
In part because authority for ``roving'' wiretaps has long been
available in criminal cases, the only serious criticism of section 206
is that it allows intelligence investigators to conduct ``John Doe''
roving surveillance that permits the FBI to wiretap every single phone
line, mobile communications device, or Internet connection the suspect
may use without having to identify the suspect by name. This criticism
ignores hurdles that guard against overly-broad wiretapping. First,
``roving'' wiretaps are available only upon a showing that the subject
is taking steps to avoid surveillance. Second, where agents cannot
identify by name the target of a proposed wiretap, they must describe
the subject with sufficient particularity to convince the FISA Court
that there is probable cause to believe the subject is a ``foreign
power'' or an ``agent of a foreign power.'' That is, the wiretap order
applies only to a specific person, even if the government has not yet
ascertained his or her identity. The alternative--to make wiretaps
unavailable until the target is identified--is a highly risky
restriction, since valuable intelligence may be lost while a person's
identity is investigated, especially given that terrorists operate in a
clandestine world and are trained to use multiple aliases and
identities. Third, if the government wants to conduct a wiretap of a
new target, it must return to the Court with a new application.
Finally, agents conducting wiretap investigations must abide by
``minimization'' requirements, which strictly control the monitoring
and retention of conversations by innocent persons not involved in the
wrongful conduct.
These provisions provide adequate safeguards to protect the civil
liberties and privacy interests of Americans.
CONCLUSION
I strongly urge the Committee to reauthorize Sections 206 and 215
of the PATRIOT Act. These provisions strike the correct balance between
homeland security and civil liberties.
I thank the Committee for its time and attention, and would be
happy to answer any questions.
Mr. Coble. Thank you, Mr. Khuzami. Mr. Nojeim.
TESTIMONY OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR/CHIEF
LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Mr. Nojeim. Thank you, Chairman Coble, Ranking Member
Scott, Members of the Subcommittee.
It's a pleasure to testify before you today on behalf of
the ACLU about certain sunsetting provisions of the USA PATRIOT
Act. I will focus your attention on one of them--section 215,
which deals with FISA records requests.
I'll also focus your attention on a related provision,
section 505 of the PATRIOT Act that does not sunset, but that
raises many of the same concerns as does section 215.
The PATRIOT Act expanded two existing sections of law that
allow the FBI to compel people in businesses to produce
documents and things.
Section 215 of the PATRIOT Act expanded a provision of law
to authorize the FBI to more easily obtain a court order from
the secret FISA Intelligence Court requiring a person or
business to turn over documents or things ``sought for'' an
investigation to protect against international terrorism or
clandestine intelligence activities.
This ``sought for'' standard minimizes the role of the FISA
Judge in controlling abuse, because it does not require any
assessment of whether the records sought pertain to an agent of
a foreign power or whether specific facts support a particular
conclusion.
Section 505 of the PATRIOT Act expanded National Security
Letter authority to allow the FBI to issue a letter compelling
Internet Service Providers, financial institutions, and
consumer credit reporting agencies to produce records about
people who use or benefit from their services.
This power was later expanded to include records of car
dealers, boat dealers, jewelers, real estate professionals,
pawn brokers, and others.
In both section 215 and 505, the PATRIOT Act removed from
the law the requirements that the records being produced
pertain to an agent of a foreign power; that is, a foreign
country, a foreign business, or a foreign terrorist
organization. This significantly expanded law enforcement
access to records pertaining to Americans. In these days of
data mining, one cannot ignore this stark fact: under these
provisions, the Government can easily obtain records pertaining
to thousands of Americans who have nothing to do with
terrorism, so long as the records are ``sought for'' or are
allegedly relevant to one of these investigations.
Neither of these statutes signals the recipient of a letter
or order that the recipient can challenge it in court. Both
statutes indicate that the recipient can tell no one that the
recipient has received the order or letter, including an
attorney with whom the person might like to consult.
In common parlance, the recipient is gagged, and under the
statutory language the gag stays in place forever.
We do not ask that you repeal either of these sections of
law. Rather, we ask that you restore the ``agent of a foreign
power'' requirement and that you amend the statute to time
limit the gag, exempt attorney-client communications from it,
and allow for court challenges.
If these changes are made to the NSL statutes, they would
satisfy the court that struck down as unconstitutional the NSL
statute that applies National Security Letters to Internet
Service Providers.
We also recommend that you require the Government to report
publicly about the number of times it uses these powers.
Mr. Chairman, this could be one of the most productive
hearings that you've conducted to date on the PATRIOT Act, and
I say that because the Government has conceded that many of
these changes need to be made. The Attorney General conceded
that the gag to which I refer shouldn't cover attorney-client
communications. Let's put it in the statute.
The Government has conceded that--the Attorney General has
conceded that the statute has a relevance requirement. Let's
put a standard into the statute instead of this very loose
``sought for'' standard.
The Attorney General has conceded that a court challenge
ought to be allowed. Let's put that in the statute. The
Department of Justice in its sunsets report has indicated that
evidence must be presented to the judge who is evaluating an
application for a section 215 order. Let's put that in the
statute.
And finally, the Department of Justice has implicitly
conceded that the number of times section 215 has been used can
be disclosed without any damage to national security, and it
did that because it has twice disclosed the number of times
section 215 has been used.
Mr. Chairman, I'd be happy to discuss roving wiretaps
during the question and answer period, but let me sum up by
saying this: We're not asking that law enforcement tools be
taken away. Rather, we're asking that they be made subject to
reasonable checks and balances, such as meaningful judicial
oversight and appropriate disclosure to the public of the use
of the power. Congress could adopt many of the reforms that I
have mentioned by enacting the Security and Freedom Ensured
Act, H.R. 1526. This bipartisan legislation, co-sponsored by
Representative Otter, Representative Flake, Mr. Conyers, and
others, contains a series of carefully calibrated adjustments
to the PATRIOT Act that would go a long way toward bringing it
more into line with the Constitution and advancing the goal of
keeping America both safe and free. Thank you.
[The prepared statement of Mr. Nojeim follows:]
Prepared Statement of Gregory T. Nojeim
Mr. Coble. Thank you, Mr. Nojeim. We have been joined by
the distinguished gentleman from Florida, Mr. Feeney, and the
distinguished gentleman from Texas, Mr. Gohmert. But don't
start me yet.
Gentlemen, we apply the 5-minute rule to ourselves, as
well. So if you all could keep your responses as terse as
possible and yet address the point, that would enable us to
move along.
Now, what I'm about to say has nothing to do with 206 or
216. Mr.--I want to advise the Members of the Subcommittee and
those in the hearing room that effective today, Mr. Bobby
Vassar, who is the counsel to Mr. Scott, has become a
granddaddy, a grandfather. And I told him earlier, I said,
Bobby you look too young to be a grandfather, but
congratulations to you, Bobby.
Mr. Vassar. Thank you, Mr. Chairman.
Mr. Coble. And incidentally, I had received Mr. Scott's
permission before I did that, Bobby.
He said you would not approve.
Mr. Baker, what type of library records are covered under
215 and how do these records assist or help in terrorism
investigation, A; and B--and I think you touched on this--if we
exempt library and book records from a 215 order, does that
create a sanctuary for terrorists?
Mr. Baker. Well, as I think you mentioned in your opening
remarks, Mr. Chairman, the section 215 of the PATRIOT Act, does
not discuss any particular holder of records at all. It doesn't
mention libraries at all. It doesn't mention anyone else. And
that's why it's an important provision. It allows the
Government to go after what it needs with respect to each
investigation. But it does not single out libraries or
bookstores or anything else. That's point number one.
Point number two is the effect would be it would create--it
would put everybody on notice, if you exempted libraries or
booksellers somehow, it would put people on notice that there
was a, you know, a Government free zone where investigations
could not go, and conduct could be conducted there, including,
for example, use of computers or, you know, checking out other
types of materials that might in some instances, as it has in
the past and actual investigations provided important
information for investigators. So we don't support that
singling out or creating a sanctuary for any type of documents
at all.
Mr. Coble. I thank you, sir. Mr. Wainstein, some have
suggested that since 215 has not been used to obtain library
records, it's not needed, although I think maybe Mr. Baker
probably will answer this as well. A recent commentary
indicated that the 9/11 hijackers used libraries in the United
States in the period leading up to September 11. Do you know
whether or not, in fact, this is true?
Mr. Wainstein. Yes. Some 9/11 hijackers did use libraries
in the United States. Investigators have received information
that individuals believed that 9/11 hijackers Wail Alshehri,
Waleed Alshehri, and Marwan Al-Shehhi visited the Del Ray Beach
Public Library in Del Ray Beach, Florida.
Wail Alshehri and Waleed Alshehri entered the library one
afternoon in July of 2001, and asked to use the library's
computers to access the Internet. After about an hour a third
man, Marwan Al-Shehhi, joined the two. Waleed and Wail Alshehri
were hijackers aboard American Airlines Flight 11, while Al-
Shehhi was the pilot who took control of United Airlines Flight
175, both of those flights crashed into the World Trade Center
on September 11th.
A witness, who recognized photos of the three individuals
that ran the newspaper articles after September 11th, provided
the information about the Del Ray Beach library visit. While no
records exist to confirm the hijackers' visit to the Del Ray
Beach Library, the timing, location, and behavior described by
the witness are consistent with other information gathered in
the course of the investigation.
In addition, investigators tracing the activities of the
hijackers determined that on four occasions in August of 2001,
individuals using Internet accounts registered to Nawaf Alhazmi
and Khalid Almihdhar, 9/11 hijackers, used public access
computers in the library of a State college in New Jersey. The
computers in the library were used to review and order airline
tickets on an Internet travel reservations site. Alhazmi and
Almihdhar were hijackers aboard American Airlines Flight 77,
which took off from Dulles Airport and crashed into the
Pentagon. The last documented visit to the library occurred on
August 30, 2001. On that occasion, records indicate that a
person using Alhazmi's account used the library's computer to
review September 11th reservations that had been previously
booked.
Mr. Nojeim. Mr. Chairman, may I respond to that? May I
respond to that?
Mr. Coble. Well, I'll get to you in just a minute, Mr.
Nojeim. I want to ask Mr. Khuzami a question. We're going to
probably have a second round here as well. Comparing the
process for obtaining records through a grand jury subpoena,
Mr. Khuzami, with the process for obtaining records through
section 215, which process in your opinion contains more
safeguards to ensure the privacy of Americans?
Mr. Khuzami. Mr. Chairman, I believe that section 215 does
for a host of reasons.
First, it has a much narrower scope. It only applies in
foreign intelligence investigations or investigations designed
to protect against international terrorism or espionage
activities.
Whereas, in the grand jury process, you can investigate
anything in the entire Federal criminal code, as well as
terrorism and espionage cases. So the scope is much narrower in
section 215.
Two, you cannot use section 215 authority to investigate a
U.S. person based solely on their first amendment activities.
There is no such similar restriction in the grand jury process.
Third, and most importantly, there is judicial review of
the section 215 order before it is issued. Agents can't just go
out and grab your records. They have to present an application
to the court and the court has to review it. It is an
independent check on law enforcement that does not exist in the
grand jury process.
Next, there's congressional oversight, as you well know,
for section 215 orders and the Department of Justice has to
report on its use of that provision.
And lastly, the Inspector General has to report on abuses
in general under the PATRIOT Act. Neither of those two
oversight functions exist in the grand jury process.
Mr. Coble. Well, my time has expired. The gentleman from
Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Let me follow through
on that. On the grand jury you're actually investigating a
crime; is that right?
Mr. Khuzami. That's correct.
Mr. Scott. And in 215, you can be investigating--you said
terrorism. But you can also be investigating--is 215 limited to
terrorism or crimes?
Mr. Khuzami. No, it can be used to collect foreign
intelligence information or to investigate espionage.
Mr. Scott. Whoa. Whoa. Whoa. Wait a minute. What is foreign
intelligence information mean?
Mr. Khuzami. That is information designed to determine if
there are foreign intelligence agents collecting information or
acting within the United States who may pose a threat.
Mr. Scott. A threat? Does it have to be a threat?
Mr. Khuzami. Does it have to be a threat?
Mr. Scott. Right.
Mr. Khuzami. No, it doesn't have to be a threat. But you
have to be very careful to make sure that you are collecting
this information so that you can prevent an attack rather than
prosecuting it after it happens. And that's the critical
difference in 215.
Mr. Scott. How about getting information on trade deal
negotiations in helping you conduct foreign affairs?
Mr. Khuzami. I'm not aware that it's ever been used for
that purpose.
Mr. Scott. I didn't ask you--it says the code--does the
code say conduct of foreign affairs, Mr. Baker. Is that what it
says?
Mr. Baker. Yes, sir. It does.
Mr. Scott. Okay. Well, conduct of foreign affairs--a trade
deal. Where is the threat if we don't get their low price on
steel?
Mr. Khuzami. I'm not aware that there is a threat for those
purposes?
Mr. Scott. Okay. But you can get 215 information if it's
helping you conduct your foreign affairs; is that right?
Mr. Khuzami. I'm not aware that it has ever been used for
that purpose.
Mr. Scott. Well, do you want to--can we strike it--well,
how would you like us to limit this to just crimes and
terrorism so we don't have to ask these questions every time we
have a hearing about you getting a roving wiretap for things
that have nothing to do with criminal activity or any national
security of the American public?
Mr. Baker. May I respond to that, Congressman?
Mr. Scott. Sure.
Mr. Baker. We discussed this briefly the other day, and I
mean one of the purposes of FISA is to provide the President of
the United States with timely and accurate information about
the capabilities, plans, and intentions of foreign powers and
their agents across the board. And the President of the United
States has broad responsibilities to protect the national
security, but also to conduct the foreign affairs of the United
States.
So as in my prior dealings with the Congressman, he always
challenges me, and I always have to go do my homework to make
sure I know exactly what we're talking about here. So after we
discussed this the other day, I went off and looked up the
legislative history on this particular point, and I believe it
provides some comfort in this area, because it says that the
provision we're talking about here requires that the
information sought involves information with respect to foreign
powers or territories and would, therefore, not include
information solely about the views or planned statements or
activities of Members of Congress, Executive Branch officials,
or private citizens concerning the foreign affairs or national
defense of the United States.
Mr. Scott. If you have the agent of a foreign government
that you're discussing a trade deal with, can you get a 215
information and can you get the roving wiretap?
Mr. Baker. In?
Mr. Scott. And that's all the probable cause you got. The
probable cause he's a foreign agent, and the probable cause
he's going to talk about with his people back home what the low
price on steel is. Can you get a roving wiretap?
Mr. Baker. Under the statute, the answer is yes.
Mr. Scott. Okay.
Mr. Baker. But there's a limitation in that the information
sought must be with respect to foreign powers or their
territories, so it's different. It's not information about that
U.S. person. It's information about what the foreign power.
Mr. Scott. Okay. Well, let's talk about this U.S. person
where you say you can't get it solely for protected first
amendment activities.
Mr. Baker. Yes. That's correct.
Mr. Scott. And that solely invites a question. Suppose it's
mostly for first amendment activities? A war protester?
Mr. Baker. I am quite confident that my office, the
Attorney General, and the FISA Court would be very concerned
about any requests to conduct a FISA that was not done for a
proper purpose; that was done apparently for a purpose to
collect information about somebody who was merely protesting
against the Government. There's----
Mr. Scott. What does ``solely'' mean?
Mr. Baker. Solely means, in my mind, solely--the only
reason.
Mr. Scott. And if it's mostly because of war protesting,
but you got a little smidgeon of something else, it would be
okay to get the information?
Mr. Baker. In theory, that's what the language says. But--
--
Mr. Scott. Well, I mean in theory. I'm talking about the
English language. Is that what the words say?
Mr. Baker. Yes, it does.
Mr. Scott. Okay.
Mr. Baker. But, as I said, there are mechanisms in place
and individuals in place to enforce the law, and it seems to me
that the rule of law does not depend merely on writing down
laws on paper. You have to have people----
Mr. Scott. What information do you present to the court to
get a 215, to get 215 information?
Mr. Baker. We would present to the court information--
because of the restriction that it can't be based solely on
first amendment activities. We would provide to the court in
that situation and the pen register situation, where you have
similar restriction, information to assure the court, as well
as our office, that it is not based solely on protected first
amendment activities, and we would also explain to the court
why it's relevant to the investigation.
Mr. Scott. Are we coming back? Okay.
Mr. Coble. The gentleman's time has expired. In order of
appearance, the gentleman from Arizona, Mr. Flake. You're
recognized for 5 minutes.
Mr. Flake. Thank you, Mr. Chairman. I thank the witnesses.
Let me just follow up. Have any--with Mr. Wainstein, if you
could. Have any 215 applications been denied by a judge? By a
FISA Court?
Mr. Wainstein. I think actually the best person to speak to
that would be Jim Baker because he actually appears before the
FISA Court.
Mr. Baker. The answer is no.
Mr. Flake. No?
Mr. Baker. The answer is no.
Mr. Flake. Under what scenario could you see one actually
being denied, given that the language actually says the judge
shall issue the order.
Mr. Baker. In my experience, I mean if the court was not
obviously what we were just discussing with Mr. Scott. If the
court was not satisfied that there was a legitimate basis for
this investigation, a legitimate foreign intelligence or
protective basis, then it would deny it, and should deny it, if
we filed such an application.
Mr. Flake. But it says--the words used there are ``shall.''
Do you see a problem with that, and do you think that we in
Congress ought to be concerned that we would have to rely, as
you put it on individuals and their discretion at the
Department of Justice or prosecutors?
Mr. Baker. Well, it's not just the Department of Justice,
it's the court. It's Federal district court judges sitting
especially designated as FISA Court judges, but who are
appointed for life----
Mr. Flake. But who are told by statute shall issue an
order. Shall instead of should, might, use your discretion.
Rather, it says shall.
Mr. Baker. In my dealings as a lawyer, I have never met a
judge who's just going to look at a blank request from the
Government and not assure himself or herself that it's
consistent with the law and ask commonsensical questions about
what it is the Government is trying to do, especially in FISA
and especially with the history that we have with respect to
how national security authorities have been misused in the
past. We're all very cognizant of that, and we all work very
hard to make sure that doesn't happen again.
Mr. Flake. But shouldn't we--I mean you're then saying that
you're confident that a judge would ignore the statute that
says he shall issue it, and actually defy it?
Mr. Baker. Well, shall--I mean let me just be clear. The
word shall is not just found in 215 and in no other creature of
Federal law. It is found in other provisions as well, and when
the Government meets the statutory requirements of that statute
or other statues, it directs the court to issue the order.
Now, having said that, my experience again with Federal
judges is that they look hard at any requests from the
Government to do anything, especially intrusive activities. And
the court is going to look at that. That's why Congress put
Federal judges into this process when they enacted FISA.
Mr. Flake. Mr. Nojeim, would you comment on that?
Mr. Nojeim. What the statute says is that when the
Government applies for 215 order, it must specify that the
records that it seeks are sought for an authorized
investigation. Once it makes that specification, the statute
requires that the judge issue the order giving them access to
those records. The debate ought to be about what the Government
should have to prove to the FISA Court, not--and that you
shouldn't allow the statute to stay in its current condition
that allows the Government to get these records merely when it
makes the specification. Remember what's happening here.
There's one party in front of the judge. And that one party
need only specify. That's it.
Mr. Flake. Moving on just a bit. In testimony the other day
at a hearing, it seemed as if--and I want to get your opinion
on this--that an individual who is not the target of probe, who
is on the periphery somehow could have information on a
Internet server, for example, that he could be surveilled for a
long period of time without knowledge that he was under
surveillance; that the notice simply has to go to the Internet
provider or the server and not the individual. Is that
accurate, Mr. Nojeim, first?
Mr. Nojeim. Say it again? That the notice?
Mr. Flake. That notice that surveillance is being conducted
need not ever go to the individual?
Mr. Nojeim. Oh, no. No. The individual who is being
surveilled?
Mr. Flake. Yes.
Mr. Nojeim. Never knows.
Mr. Flake. Never knows?
Mr. Nojeim. Right.
Mr. Flake. And that could happen for a long period of time,
over a couple of years, and under the current law, they need
not be ever notified that they are under surveillance?
Mr. Nojeim. That's right. They would never be notified.
Mr. Flake. Okay.
Mr. Nojeim. And if I could just follow up on part of the
discussion earlier? This notion about exempting libraries from
the coverage of section 215.
Mr. Flake. I was going to get to that.
Mr. Nojeim. We have to remember that 215 and National
Security Letters also apply to Internet Service Providers. The
Government says that the library is an Internet Service
Provider. But it can use its Internet Service Provider
authority to get those records without having to go through
section 215. In other words, if you exempted libraries from
section 215, the FBI could still serve a National Security
Letter on the Internet Service Pprovider that is serving the
library and get those records using that authority, and it
wouldn't even matter that the library had been exempted from
section 215.
Mr. Flake. But you have not--just to clarify--you or your
organization has not asked for an exemption for libraries? You
simply asked for a more rigorous standard that's applied before
appearing before a judge?
Mr. Nojeim. That's right.
Mr. Coble. The gentleman's time has expired. And, as I
said, we'll have a second round. The distinguished gentleman
from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I appreciate the
witnesses' testimony.
How many convictions based on terrorist activity have we
had in the United States since 9/11? I'll start with Mr.
Wainstein?
Mr. Wainstein. Yes, sir. Thank you. I don't have----
Mr. Conyers. I understand.
Mr. Wainstein.--off the tip of my tongue an exact number,
but I have actually--I know this question has come up, so I had
a listing of various----
Mr. Conyers. Sure. What number?
Mr. Wainstein. I came up with about a dozen or so.
Mr. Conyers. Okay. I'd like to see you afterward to find
out how your list compares to mine.
Mr. Wainstein. And keep in mind, that's not a total list.
Mr. Conyers. No. It's not.
Mr. Wainstein. It's just the cases that occurred to me as
being terrorism cases that I----
Mr. Conyers. Well, I'm in the process of trying to find
this out. This is probably the most elemental question that we
could be talking about.
I asked you this already once, Mr. Baker, didn't I?
Mr. Baker. Yes, sir, last time.
Mr. Conyers. What number do you have?
Mr. Baker. I don't--I didn't count.
Mr. Conyers. You didn't count.
Mr. Baker. I was just able to come up with--you asked--I
think if we--if there had been any convictions, and I think----
Mr. Conyers. All right.
Mr. Baker.--the answer was yes. But I believe that the
Department, the Criminal Division, of the Department, would be
the most likely place to have that kind of information.
Mr. Conyers. Thank you. Mr. Khuzami, what number do you
have?
Mr. Khuzami. I'll defer to my Department of Justice
colleagues.
Mr. Conyers. Okay.
Mr. Khuzami. I do not have a number.
Mr. Conyers. All right. Director Nojeim, how many do you
have?
Mr. Nojeim. I'd be happy to get back to you, Congressman.
Mr. Conyers. Okay. All right.
Mr. Nojeim. But let me just point out that it's important
that when we're reporting numbers of convictions that we
actually look at what the person was convicted of.
Mr. Conyers. Well, exactly.
Mr. Nojeim. Often the Department says that somebody was
convicted of terrorism in connection with a terrorism
investigation, when really the conviction is about a very minor
crime.
Mr. Conyers. Precisely. Well, I want to tell everybody and
put it on the record that I've got four that I would be willing
to--that's a number I would stand behind. But somewhere in our
Government, and I'll take your suggestion, Mr. Baker, to check
with who you referred us to.
Now, let me ask if there's any witness here that has any
objection--well, I don't--I guess I know the answer to this
question already. All of the witnesses except one wants to make
section 206 permanent; is that right? Right?
Mr. Baker. Yes.
Mr. Wainstein. Yes, sir.
Mr. Conyers. Okay. Then I have to ask Mr. Nojeim what's the
case for more safeguards and what would they be and why
shouldn't we have, and why should we discontinue the use of
simultaneously both John Doe wiretaps and roving wiretaps?
Mr. Nojeim. We're not asking that you repeal section 206,
the roving wiretap provision of the PATRIOT Act. What we ask is
that you conform it to the corresponding provision in the
criminal code. Doing this would entail requiring that the
Government specify in its application for a wiretap either the
identity of the person who's phone or computer would be tapped
or to specify the facility that would be tapped.
It would also entail borrowing from the criminal code the
ascertainment requirement that helps focus law enforcement
eavesdropping on conversations to which the target is really a
party. Doing these two things would conform the intelligence
roving wiretaps to the criminal roving wiretaps and would go a
long way toward protecting the privacy of Americans engaging in
innocent telephone conversations.
Mr. Conyers. Finally, we've been trying to get information
about these numbers. The only time we get cooperation from the
Government, namely DOJ and the FISA people, is when there's an
expiration of a provision, and then we get some numbers. Other
than that we get stiffed for--what is it--three years we've
been trying to engage in a discussion, and it was off the
charts, and I just want to put on the record that this amounts
to me to misclassification, because there's been no accounting
for the wiretaps, the National Security Letters, and then all
of a sudden when seeking reauthorization, we can get the
numbers.
And I think, Mr. Chairman, that's an abuse of power on the
part of the Executive Branch that handles this kind of
activity. Does anybody want to defend the Government on that
score? Mr. Baker?
Mr. Baker. Yes, sir. I'd be happy to. On a regular, on
semi-annual basis, we provide to the intelligence committees of
both Houses of Congress a very lengthy report full of all the
numbers you could want quite frankly. It's a very, very long
report, with a lot of data in it that is available at the
committees', the intelligence committees, and, as I understand
it, Members of Congress and cleared staff can have access to
that. So we provide those numbers. We also provide less highly
classified reports, with admittedly less information in them
to, I think, both the Judiciary and Intelligence Committees of
both Houses of Congress.
Mr. Conyers. Well, all somebody had to do was put it in a
letter to us saying go see the right agency. We're loaded with.
You got more information than you could ever use, but we get
stiffed.
Now, I'll take it up with the staff and the Subcommittee as
well but I'm glad you're telling us that it's really available
if we can get cleared.
Mr. Baker. And I come up regularly. I was up I think last
week in front of the House Intelligence Committee to come up
and do staff briefings and explain the numbers and provide
additional details. So I'm happy to do that at any point in
time.
Mr. Nojeim. Mr. Conyers? Mr. Conyers, the Department
reports every year the number of full FISA wiretaps and
physical searches that it does. And it does that without any
risk to national security. It could--and those are much more
intrusive searches than our--than the searches under section
215 and than our National Security Letter requests as well.
This is what we got when we filed a Federal Freedom of
Information Act request for information about the use of
National Security Letters. It is page after page after page of
blanked out information that seems to suggest that National
Security Letters are being used, but that you can't really tell
that they are or how often they are being used.
We would suggest that more reporting could be done on
National Security Letters.
And I'd like to submit this for the record, and the letters
that the Attorney General--I'm sorry that the Department of
Justice--has provided over the last 2 years about even more
intrusive surveillance.
Mr. Coble. Without objection.
The gentleman's time has expired.
Mr. Conyers. Thank you.
Mr. Coble. The gentleman--the distinguished gentleman from
Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman, and once again I
appreciate the opportunity for these hearings. It's very
helpful.
I was a little surprised, and I want to be sure about this,
but did I understand that you know the U.S. Attorney' office
knows or intelligence knows that the hijackers actually did use
the library of the State college in New Jersey to make airline
reservations for flight 77? Did I understand that correctly?
Mr. Wainstein. Sir, the--what I stated earlier is that two
of the hijackers used computers at that New Jersey library.
They did review and order airline tickets. The airline tickets
they ordered were not the airline tickets for the flight on
September 11th. Those were ordered on some other computer
somewhere else. They did review their reservations----
Mr. Gohmert. I see.
Mr. Wainstein. The September 11 reservations on that
computer in that library on August 30 of 2001, 11 days before
the attacks.
Mr. Gohmert. There had been discussion about the gag order.
Would it be appropriate to have at least a one-sided gag order
where the Government does not reveal, but if the individual
target wishes to reveal that he or she could do so? I'm
interested in each of your responses?
Mr. Baker. Well, I believe what the Department has
supported in general is an amendment to the section 215 that
would allow the recipient of the order, which remember is most
likely a third party. We're unlikely to serve a 215 order on
the target of the investigation, but that--we would serve it on
a third party and that third party then could consult with
their attorney to discuss whatever legal action they want to
take or compliance of whatever other matters they want to
discuss.
So we would support some kind of an amendment to address
what's been referred to as a gag order in that regard.
Mr. Gohmert. So that would basically be a one-sided gag
order, where the Government would not reveal, but the recipient
could; is that correct?
Mr. Baker. The recipient could reveal to his or her
attorney or to the company's attorney, whatever it is. They
could have a meaningful discussion with their attorney to get
legal advice on this issue.
Mr. Gohmert. So it is currently the law you're telling me
that somebody gets this order. They can not even talk with an
attorney about it?
Mr. Baker. On its face, that's what it says. The Department
has already taken the position that they could talk to their
lawyers with respect to this--with respect to receiving one of
these items, but that is what the law says. And that's why we
would support clarifying that specifically.
Mr. Gohmert. But your position is only that it be extended
to consultation with an attorney or someone of that nature, not
that they could go public with it?
Mr. Baker. No. Certainly, I mean we don't want the target
of the investigation, who is a spy or terrorist, to find out
we're looking for documents about them.
Mr. Nojeim. Mr. Gohmert, we agree with that. We would add
one more thing and that is that to satisfy the court that
struck down the National Security Letter statute that applies
to Internet Service Providers, to satisfy that court, you would
also need to time limit the gag. It would have to expire after
a time certain. And I think that that could be done; that the
time could be a lengthy one. In the Senate version of the SAFE
Act, to which I referred earlier, has I believe a 6-month time
limit on the gag.
I'd also like to submit for the record a copy of the form
of a National Security Letter so that people can see exactly
what these look like. They have very compelling language. You
get the letter. You must turn over the documents, and you can't
tell anyone that you got the letter, and we would support the
amendment that was discussed earlier.
Mr. Baker. Congressman, if I could just on this----
Mr. Gohmert. Certainly.
Mr. Baker. On the time limit, I mean, to me I think that's
a very dangerous and bad idea quite frankly, because I mean
some of the targets of our investigations, let's be quite
clear, are agents of a foreign power. What does that mean? That
means in some instances, they are foreign government officials
who we are investigating, and we want to obtain information
about them, and I don't think that anybody here thinks that
they should deserve notice about what the United States
Government is doing to investigate their activities. I just
think that doesn't make any sense.
Mr. Nojeim. Should the Government concede----
Mr. Gohmert. Excuse me. Just a moment.
Mr. Nojeim. By the agency?
Mr. Gohmert. Just a moment. Let me follow up on that. What
if there were a time limit, some might call it a sunset
provision, where you'd have to come back in and re-justify the
need to extent it further?
Mr. Baker. Well, I mean off the top of my head, that kind
of--come back to the FISA Court and try to justify it--that
kind of idea makes more sense because there are some times when
even if you're investigating a United States person where the
Government assesses that it makes more sense; we're getting
more intelligence information by leaving this person in place
than by trying to take them out or arrest them or something
like that. And so sometimes intelligence investigations can go
on for a considerable period of time, and that's appropriate
and done under the scrutiny of the FISA Court.
So I think that is an idea that I'm sure the Department
would be willing to work with the committee on.
Mr. Gohmert. Mr. Nojeim, does that address your concern?
Mr. Nojeim. It does, and it is the approach that the Senate
took in its version of the Safe Act, and we would support it.
Mr. Coble. The gentleman's time has expired.
Mr. Gohmert. Okay. I'm sorry.
Mr. Coble. We'll have a second round, Mr. Gohmert.
Mr. Coble. The distinguished gentlelady from California,
Ms. Waters.
The distinguished gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman. I
appreciate these hearings continuing on the oversight
responsibility of the Judiciary Committee and if anybody
doesn't believe that we're reviewing the PATRIOT Act, they
ought to just look at the schedule of the committee and the
Subcommittee.
I'd like to get one thing, though, at least my response on
the record. There was a use of a phrase a little while ago
about abuse of power. And the suggestion was made that you in
the Justice Department have failed in your responsibility to
report to us. But, Mr. Baker, you've made it clear that you on
a regular basis have to do those detailed reports to the House
and the Senate Intelligence Committees; is that correct?
Mr. Baker. That's correct.
Mr. Lungren. Have you discharged that responsibility in the
last 4 years?
Mr. Baker. Absolutely. I have. When I first came to OIPR as
an attorney assigned to do those reports--it's very
painstaking--and since then I've supervised the preparation.
Mr. Lungren. Has there been a time in which those reports
were not done to the relevant committees as required by law,
both the House and the Senate.
Mr. Baker. No. We comply with the law in that regard.
Now, I'm going to be frank. There are times--on the big
semi-annual report that I talked about that has all the details
in it, we provide those on a timely basis. There's times when
on some of the other reports we're slower than we should be.
And we know that. We're trying to address that, and it's a
question of resources within our office quite frankly.
Mr. Lungren. I appreciate that. It's just been experience
when I served on the House Intelligence Committee that
generally speaking--I'm not talking about any single member,
but generally speaking the other Members of Congress don't take
advantage of the opportunity they have to look at that
information. So I just want to make it clear that you have
reported as required in the detail as required?
Mr. Baker. Yes, sir.
Mr. Lungren. Secondly, have you ever heard of sleeper cells
that they sometimes sleep longer than 6 months?
Mr. Baker. Sleeper. Well, without going into specifics
about what we know about sleeper cells, I mean that's the whole
idea. They sit there until such time as, you know, the
authority that has control of them activates them.
Mr. Lungren. I understand. See here's what I don't
understand. We passed these laws in response to a specific
attack on the United States by those who wish to do us harm. A
fatwa that issued in 1999 that said it is the obligation of
everybody who is the subject of the fatwa, the recipient of the
fatwa, it is their obligation to kill every American anywhere
in the world--man, woman, or child; belligerent or non-
belligerent. That's what we're up against. We passed the law in
that context, and sometimes I think we forget in what context
we passed that law.
Now, the claim was made that a judge has no discretion
whatsoever, at least the impression was made that the judge has
no discretion whatsoever under section 215 in the application,
because it says shall. It says upon application made pursuant
to this section, the judge shall enter a next party order as
requested or as modified, approving the release of records.
Followed by this language if the judge finds that the
application meets the requirements of this section. And what
are the requirements of this section? That there be an
investigation quote ``to obtain foreign intelligence
information not concerning a United States person.'' Correct?
Mr. Baker. Yes.
Mr. Lungren. The judge has to make that finding. Correct?
He has to check and make sure that what you say is in there?
Mr. Baker. That's correct.
Mr. Lungren. Or to protect against international terrorism
or clandestine intelligence activities?
Mr. Baker. That's right.
Mr. Lungren. Provided that such investigation of a United
States person is not conducted solely on the basis of
activities protected by the first amendment of the
Constitution. The judge is required to look at that, is he not?
Mr. Baker. Yes.
Mr. Lungren. And you have to prove to his satisfaction
that, in fact, that is the basis for the request; correct?
Mr. Baker. Under the law, the judge has to see and assure
himself or herself that the certification is there.
Mr. Gohmert. Right.
Mr. Baker. But in my experience, this court, going back
many years is very active in looking at and looking behind what
the Government is presenting to it, and so I can assure you
that that's what happens, and as we've reported publicly in the
report that was mentioned earlier, last year on the full
content FISAs, the FISA Court made modifications, substantive
modifications in 94 applications. It's a very active court.
They look at what we're doing. They're very conscientious.
Mr. Lungren. Now, as I understand the testimony, library
records have not been accessed by resort to section 215?
Mr. Baker. That's correct.
Mr. Lungren. Even though we know now in retrospect that
the--some of the hijackers in 9/11 utilized public libraries,
their computers, for the various reasons you've talked about?
Mr. Wainstein. That's true. We have not issued any 215
orders directed at libraries. Keep in mind, however, and there
has been testimony over the last week or two about this, that
we have had contact with libraries, and many libraries have
actually voluntarily provided information to us over the years
since 9/11 in relation to terrorism and criminal
investigations.
So we haven't had to resort to 215 order.
Mr. Lungren. See if some of the discussion I've seen in the
public has suggested that somehow the Federal Government is so
interested in going after libraries as if there's no context in
this. And I think a lot of American citizens would be surprised
to know that 9/11 hijackers utilize the libraries, and in
retrospect, we wish we knew about that. In retrospect, we wish
we'd been able to connect dots. Thank you.
Mr. Coble. I thank the gentleman from California. The
gentleman from Massachusetts, Mr. Delahunt.
Ms. Waters, did you want to reclaim your time?
Ms. Waters. Yes, I would like very much, Mr. Chairman.
Mr. Coble. The gentlelady from California.
Ms. Waters. I appreciate and thank you. I think we should
continue on the discussion about the libraries. I just heard
our witness say that you have not had to access information
about people using the library. You have not had to resort to
that, and you have not had to resort to informing a librarian
that they cannot share that information or tell the party that
maybe is being investigated. Is that true?
Mr. Baker. That is correct. We have not used this
provision, section 215 for the purpose of obtaining information
from libraries.
Ms. Waters. I see. I'm sorry. That's not my understanding,
and I have to go back and do a little research about the
information that was--that alarmed us when we first learned
about your ability to identify individuals who use a library
and the materials that they seek in that library. My friend
from California, my colleague on the opposite side of the
aisle, indicated that he could not understand Americans who
would be concerned about that. And he thought perhaps Americans
may not have heard that some of the hijackers may have used the
libraries in order to access information that may have been
used in the attack.
I think that many Americans heard that that was a
possibility. I am one who's adamantly opposed to librarians
having to give information to law enforcement of any kind about
who uses the library, when they use the library, and what
subject matter they researched or read or had access to in the
library. And it's not because we're not concerned about safety,
and we're not concerned about terrorism. America is a very
special country, with a constitution that guarantees us
privacy, and to think that you would be--your privacy would be
invaded in the way that this section allows is alarming to some
of us.
And so I wish not to have the moment pass by having my
colleague from California describe his understanding of this
section and his lack of appreciation for why Americans would be
concerned about this, and I wish to just share with you that
I'm glad you have not had to use it. I'm going to research the
information that I thought I had seen about your having used
that, and I would oppose this continuously and forever because
I think it is one of the most egregious violations of privacy
to be targeted in the library.
Mr. Conyers. Would the gentlelady yield?
Ms. Waters. Yes, I will certainly yield to the gentleman.
Mr. Conyers. One of our problems, and I'm glad you've re-
raised this subject is that you don't need to use what is it--
215?--to get to the libraries. You can get to the libraries
through a National Security Letter, which is an administrative
subpoena. And guess what? They won't tell us how many of those
letters they've used. And what we think has been happening is
that they've been getting to libraries, not through 215, but
through this other route.
I have not raised that. I didn't raise that question yet,
and that's why I praise you reclaiming your time.
Mr. Nojeim. If I could just put a little fine point on
that? The Government could use a National Security Letter to
get the records of a person's use of the library computer, but
they couldn't use the National Security Letter to get records
about what books the person checked out. So they could find out
where the person went on the Internet, but not use it to get
records about what they checked out of the library.
Here's where the real debate ought to be on this section.
If the Government believes that Mohammad Atta has gone into a
library, checked out a book, and that he's an agent of a
foreign power or foreign terrorist organization, they ought to
be able to get records about that if they can show that they're
relevant to an investigation. They ought to be able to do that.
The real debate is about whether they can go to the library
and say, ``Give us the records about what everybody checked
out, because in that--inside of those many records will be
information that's relevant to our investigation.'' And what
we're saying is focus on the agent of the foreign power, but
leave the records that pertain to innocent people alone.
Mr. Coble. The gentlelady's time has expired.
Ms. Waters. All right. All right.
Mr. Coble. The gentleman from----
Ms. Waters. Thank you. Thank you very much.
Mr. Coble. Mr. Wainstein may respond if you wanted to
very--do you want to respond?
Mr. Wainstein. I just wanted to point out that the
Department has taken the position that the recipient of a 215
order can, in fact, challenge it if they think that it's overly
broad and oppressive, and, in that case, a library, if they
really thought that we were overly broadly asking for all the
records--the records of all of the readers in the library
could, in fact, consult with their attorney and then challenge
it in court.
Mr. Coble. Very well. The gentleman from Ohio is recognized
for 5 minutes.
Mr. Chabot. I thank the gentleman for his recognition. I'd
just like to start out by reiterating something that my
colleague from California, Mr. Lungren, mentioned before, and
that's that I sometimes read articles and hear my colleagues
sort of loosely state that after we passed the PATRIOT Act,
there has been essentially no oversight; that we've kind of
turned the Federal law enforcement forces loose on the American
public and all kinds of kind of wild allegations, but clearly
Congress has been getting the reports. Now, who's been reading
these reports and whether we've been following up with our
responsibilities in doing that is another matter.
But we were pretty careful in crafting this legislation. We
also put in that legislation the requirement that we come back
and revisit this to see how this has actually been carried out
over the past 3, 4, 5 years, and that's what we're doing now.
And I want to commend the Chairman for holding these hearings,
and we've had a significant number of these hearings; and I
think the attendance has been pretty good on both sides of the
aisle. Both Republicans and Democrats who have been here I want
to commend them for doing that.
But this is part of that oversight process, and I think
when we passed the PATRIOT Act, we were very serious about
exercising this oversight, and this is all part of that
procedure and process.
Mr. Nojeim, let me start with you. In your testimony, you
point out that prior to the passage of the USA PATRIOT Act,
roving wiretaps were available in criminal investigations, but
not, of course, in FISA investigations.
Leaving aside for a moment the two particular criticisms of
section 206 contained in your testimony, do you agree with the
other witnesses on the panel that roving wiretap authority
should be available in FISA investigations?
Mr. Nojeim. We believe that roving wiretaps are potentially
particularly intrusive and that for that reason, if Congress
decides to make them available in intelligence investigations,
it ought to include the same kinds of protections that it put
for roving wiretaps in criminal investigations.
Mr. Chabot. Okay. Thank you.
Mr. Baker, let me go to you next. In Mr. Nojeim's
testimony, he alleges that the Government can now issue John
Doe roving wiretaps that fails to specify a target or a
telephone. It's my understanding, however, that a roving
wiretap order issued be the FISA Court must specify a
particular target, and that this target must either be
identified or described.
And furthermore, I've been told that the FISA Court must
find that there is probable cause to believe that the
identified or described target is a foreign power, agent of a
foreign power, and may take action to thwart surveillance. Am I
accurately describing the requirements set forth in FISA or is
Mr. Nojeim's allegation correct?
Mr. Baker. No. You're actually--you're accurately
describing the requirements of FISA. We must provide the
identity, if known, of the target or a description of the
target, and then--and we have to establish probable cause to
believe that that target is a foreign power or an agent of a
foreign power.
As I said earlier, those two terms are defined. It's not--
we don't just make it up. They're specifically defined in the
statute, and when you come to a U.S. person, all of those
definitions have a link to the criminal law of the United
States.
And in addition to that, then the court has to make the
specific finding, as you suggest, that that target, that
target, is engaging in activities that may have the effect of
thwarting surveillance.
Mr. Chabot. And in Mr. Nojeim's testimony, he also suggests
that the section 206 of the USA PATRIOT Act lacks sufficient
privacy safeguards, but he doesn't mention the statutory
requirement that each roving wiretap order issued by the FISA
Court contains specific minimization procedures in order to
limit the Government's acquisition and retention and
dissemination of information about Americans.
Could you please discuss what minimization procedures are,
and why they're important, and whether you feel that these
procedures adequately protect the privacy of our citizens?
Mr. Baker. In order to obtain a FISA Order in the first
place, each application must include within it minimization
procedures that are specifically approved by the Attorney
General and that are reasonably designed in light of the
purpose and technique that's going to be used to protect
against the acquisition, retention, and dissemination of non-
pertinent communications by Americans. And these procedures
have to be specific. They have to be reasonably designed in
light of the need for the Government to obtain, collect, and
disseminate foreign intelligence information, and then the
court makes a finding, when it's reviewing our application,
that those minimization procedures meet the definition set
forth in the statute by Congress.
Once the court has made that assessment and the other
assessments under the statute and determines that the order can
be lawfully issued, the court grants us the authority and then
it orders us to follow the minimization procedures.
The minimization procedures are--there are standard
procedures that exist that we use in just about every case. And
then for particular circumstances, the court or the Government
or both will craft specialized minimization procedures to
address situations that come up where the intrusion in privacy
might be higher, and you have to adjust accordingly. And so the
court is very active in assuring itself before it issues an
order that the minimization procedures are appropriate.
Mr. Coble. And the gentleman's time has expired. And
consistent with what the gentleman--Mr. Delahunt, I'll give you
just a minute. I just want to follow up on what the gentleman
from Ohio said regarding our oversight.
And the other day, at our hearing, Mr. Delahunt, you
commented about the accelerated path that we are now pursuing.
I hope that if any of these provisions are subsequently
sunsetted, I would like to see the sunset occur at the
conclusion of the calendar year of the second year of the
Congress rather than the first year. That might, Mr. Delahunt,
preclude our having to do this exercise again.
The distinguished gentleman from Massachusetts, Mr.
Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman. Just to follow up on
that point. I think it was you, Mr. Wainstein, that said you
encouraged this committee to make these provisions permanent.
This really does go to the issue of oversight. I don't want to
get into the details of the various provisions at this point.
But, Mr. Chairman, you know, as I participate in these
various hearings, I'm becoming--I'm reaching the conclusion
that if they're not to be sunsetted, if they're to be modified,
if there are to be changes, or if there are--if they are just
reauthorized as is, I think it's very important that they not
be made permanent; that these kind of hearings are positive and
are absolutely integral in terms of our role as far as
oversight is concerned. It gives us--I can--I dare say the
gentleman from Justice would not be here but for the fact that
there is a sunset provision. And maybe, just maybe, we ought to
expand the sunset aspect of the PATRIOT Act to other provisions
to give us a more--how shall I say--leverage in terms of our
oversight function, and that is if nothing with that act
changes.
But the reality is, with all due respect, you know, dealing
with the Department in terms of securing information without
the leverage of the sunset is extremely difficult. It isn't
easy. And I think that is a sentiment that is shared on both
sides and in other committees. And I have no doubt, Mr. Baker,
that, you know, you take your role very seriously, and I'm sure
that the career people that are working under your direction
are people who act in good faith. But the system itself
requires more than just checks and balances within the
Executive Branch.
And that's why I put this idea out about as we reauthorize
or as we address the sunset provisions to expand the sunset to
the entire PATRIOT Act, to allow us to have a more significant
role in terms of our responsibility and our review.
Mr. Baker. May I just respond briefly to that?
Mr. Delahunt. Sure.
Mr. Baker. And I thank you for your comments. We do take
our jobs very seriously.
Mr. Delahunt. I know that.
Mr. Baker. And we do conduct--ourselves we conduct
oversight of the activities of the FBI and the----
Mr. Delahunt. I understand.
Mr. Baker.--the intelligence committees. I mean
intelligence community. And oversight it seems to me--effective
oversight to do it--it's a hard job--it's a really hard job.
You really got to roll up your sleeves and dig in and do a lot
of work----
Mr. Delahunt. Right.
Mr. Baker.--and push, and get the information you need to
satisfy yourself that what's being done is appropriate and
consistent with the law.
I will tell you that even though I don't agree with all
their conclusions, the Senate Intelligence Committee audit
staff conducted a very lengthy oversight or audit of the FISA
process, and they're finishing the report, and it was
referenced yesterday, and that, I mean, I myself spent many,
many, many hours with them discussing the process and so on.
Mr. Delahunt. Right.
Mr. Baker. And they had access to everything. And that----
Mr. Delahunt. I'm running out of time. Here's part of my
problem, too, Mr. Baker, is that you reference the, you know,
the reports to the Intelligence Committee. I don't know, but
does the Judiciary Committee that has, you know, jurisdiction
over the Department of Justice--do we get those same reports?
Mr. Baker. I don't pretend to understand all the rules of
Congress, but----
Mr. Delahunt. Neither do I.
Mr. Baker.--as I understand it, those kinds of reports are
available to Members of other committees. You go up and read it
in the secure space of the Intelligence Committee, and then
staff members who have appropriate clearances----
Mr. Delahunt. Okay.
Mr. Baker.--can go----
Mr. Delahunt. Well, again, another suggestion would be, Mr.
Chairman, is when the time comes to have--that Justice report
directly to this committee as well as the Intelligence
Committee since we do have oversight.
Part of the problem, Mr. Baker, is that the FISA Court--and
I'm sure again--that these judges--you know, they're really
title III judges I understand that move over to the FISA
Court--but there again everything is done in secret, obviously
by necessity. But, as I said earlier in the week, part of the
problem here is balancing the need for transparency versus the
need for secrecy because of national security and the concerns
that people have expressed about privacy and libraries, et
cetera are part of that balance. And, you know, let me just ask
one more question.
I think the suggestions and the recommendations by Mr.--is
it Nojeim?
Mr. Nojeim. Nojeim. Thank you.
Mr. Delahunt. Nojeim. Are really reasonable. I don't see
the heavy burden that the adoption of those recommendations
would put on the Government, and yet would, you know, accrue to
the benefit of the American people in terms of their concerns
about what's happening behind closed doors, because it is
happening all behind closed doors. We've got to provide more
information and become more transparent. That's difficult. I
understand. But that's the--I think the role of this committee
working with the--you know, with the Department, and really
thinking this thing through in a responsible way. Thank you.
Mr. Coble. The gentleman's time has expired. We'll get back
on the second round, Mr. Baker. We're going to have a second
round. The gentlelady from Texas has joined us. Ms. Jackson
Lee, you're recognized for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman, and,
Mr. Nojeim, I'm going to pose a series of questions for you, so
ask mine, and then you can weave in your commentary.
Let me first of all thank both the Chairman and Ranking
Member of the Subcommittee. I know this is leading to the
potential of the reauthorization of certain aspects of PATRIOT
Act One, and, of course, also moving into PATRIOT Act Two.
I am on record--I might as well as they say share it all
for opposing PATRIOT Act One, and considering where we are
today, on any aspects that are now being called to be
reauthorized.
As it relates to the next step, I'm on record for being
enormously skeptical to the extent of moving past the 90
percent radar screen. It's fair to make that acknowledgement.
Let me share with you just a few comments and if you can
point right back to libraries and access and the clear equation
of invasion of privacy equals excellent security or absolute
security.
My recollection is that one of the reasons of the Founding
Fathers fleeing from their previous nation site was this
question of freedom. We did not devise the Bill of Rights in
the 20th century. It was devised by early founders of this
nation. And so it must have been something keenly part of the
cornerstone of America. And that is unfortunately other than
the recognition of the dignity and the humanity of slaves and
women, freedom was a very, very serious in-depth infrastructure
or fabric of our society. And we were willing to die for it.
I recall after 9/11, one of the tools of so-called freedom
or security was the registration of Pakistani males and others.
My knowledge is that not one or barely one terrorist was found
during that registration period, and quietly we ended it. So
the question is, as we look toward our security, I happen to
focus more on technology, security of the borders, preventing
people who have untoward desires from coming into the United
States, and also giving law enforcement the appropriate tools.
Would you answer for me the fact of whether or not the
complete invasion of one's private e-mails, technology, library
usage, et cetera is preventative of terrorism or is it simply a
tool to make a case that you have the intent or the inclination
or the background or the previous thought processes that might
make you a terrorist?
Mr. Nojeim. We believe that when the Government has strong
evidence that a person is up to no good, that they're a
terrorist, that they can get access to very private information
about that person to help prove their case.
Ms. Jackson Lee. Already? Now?
Mr. Nojeim. That then can do it now and that they ought to
be able to do it. When the Government has, for example,
probable cause of crime that there's--that a person is involved
in crime and that in their house is evidence of that crime,
they should be able to get a warrant and go into their house
and find that evidence. The important thing to remember is that
there are safeguards, and what the PATRIOT Act did was erode
the safeguards.
Our advocacy today and our advocacy throughout this debate
has been about restoring some of those safeguards. One of the
safeguards that we want to restore, besides judicial review and
meaningful judicial review, is openness to the public about how
particular powers are being used. And Mr. Delahunt was asking
whether the committee gets reports about section 215. Indeed,
the statute requires that the Attorney General provide to the
Judiciary Committee a report setting forth the total number of
section 215 orders that it has applied for and the total number
of such orders either granted, modified, or denied.
It also has to provide similar information to the general
public about FISA Orders--those full probable cause ``that-the-
person-is-an-agent-of-a-foreign-power'' orders that allow them
to wiretap or break into a person's home. It has to provide
that same information about much more intrusive searches to the
entire public, and we see no reason why the Government couldn't
provide that same information about the less intrusive section
215 searches to the entire public, especially given that the
Attorney General has twice disclosed exactly that same
information.
Ms. Jackson Lee. Mr. Baker, if I might just get an answer.
What about those safeguards? Can you not live with the
safeguards that the witness has just spoken about?
Mr. Coble. Would the gentlelady suspend just for a moment,
Ms. Jackson Lee? Mr. Baker, if you would answer that very
quickly. We have a vote on the floor, and we will come back,
Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Coble. We will come back for--Mr. Baker, if you will
respond very quickly.
Mr. Baker. FISA--excuse me--FISA includes a number of
reporting provisions, and I think that the Department has
expressed a willingness to work with the committee to discuss
whatever additional requirements might be appropriate, but we
need to remember that we're dealing with the national security,
and so we have to always be consistent with that.
Ms. Jackson Lee. We'll carry that on further.
Mr. Coble. The gentlelady's time has expired.
Ms. Jackson Lee. Thank you very much.
Mr. Coble. And the panelists, if you all will just rest
ways. Hopefully, we'll be back imminently. I'm thinking 10
minutes probably at the most. Thank you.
[Recess.]
Mr. Coble. I apologize to the panelists. Sometimes these
best laid plans of mice and men, you know, sometimes go awry.
And to compound the confusion, as I told you all earlier,
this--we must make this hearing room available to the Courts
and Intellectual Properties Subcommittee. So we're going to
have to adjourn about quarter 'til twelve to let them wrap up.
So but for everyone's information, we will keep the record open
for 7 days. And we can communicate with you all. You all can
communicate with us.
So we'll start our second round, and maybe try to make the
5-minute rule, maybe a 2-minute rule just to get around.
Mr. Nojeim, you wanted to respond to Mr. Wainstein. Did you
ever do that after the first round? If you did not, I'll let
you do that now.
Mr. Scott. I think he did. He did.
Mr. Coble. All right. Bob--Mr. Scott says that he thinks
that you did.
Mr. Nojeim. Okay.
Mr. Coble. Did you want to respond to what he said, Mr.
Wainstein. I don't remember.
Mr. Wainstein. I don't remember what he responded to----
Mr. Coble. Okay.
Mr. Wainstein.--to whatever I said.
Mr. Coble. Well, we're being fair and balanced here in any
event. Let's see what we do here.
Mr. Baker, even if the Government is not sure of the actual
identity of the target--I'm talking roving now--does FISA,
nonetheless, require the Government to provide a description of
the target of the electronic surveillance to the FISA Court, A.
And, B, how difficult is it to identify international
terrorists and foreign intelligence agents by name?
Mr. Baker. Yes. The statute requires us to either provide
the identity or a description of the target, and based on
whatever we provide, on that factual basis, the court has to be
able to make the other findings that the statute requires,
including probable cause to believe that the target is an agent
of a foreign power. So the answer is there has to be a target,
and the court has to be able to make some findings with respect
to that target.
Mr. Coble. I want to thank you, sir. Mr. Khuzami, do you
believe that with section 206 of the USA PATRIOT Act, foreign
intelligence investigations can be more--can more effectively
gather critical information with the purpose of preventing a
massive disaster not unlike September 11th, and how would the
antiquated requirement of 1986 impede the successful prevention
of terrorist attacks today?
Mr. Khuzami. Well, I think it's----
Mr. Coble. Your mike is not on, Mr. Khuzami.
Mr. Khuzami. Sorry. Yes. I--you know, the roving wiretap
authority is critical because you don't always have the ability
to identify in advance what communications facility the target
might use, and you can lose very valuable intelligence and
information in that interim period, either before you know what
facility is going to be used or before you can ascertain their
identity. And I frankly think that given the remainder of the
protections in that statute that not making those requirements
is an entirely proper balance of individual rights, but at the
same time ensures that we protect national security.
Mr. Coble. I thank the gentleman. Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. First, did somebody say
that no part of the PATRIOT Act has been found
unconstitutional?
Let me ask it another way. Has any part of the PATRIOT Act
been found unconstitutional.
Mr. Baker. I believe the answer to that question is no. I--
specifically a provision of the PATRIOT Act. Material support.
I take that back. There's a material support provision.
Mr. Scott. That's been found unconstitutional?
Mr. Baker. Mr. Wainstein can speak on that. Yeah.
Mr. Scott. Any other part?
Mr. Nojeim. There are two provisions.
Mr. Scott. Wasn't 505(a)?
Mr. Nojeim. There are two provisions that have been found
unconstitutional. The first is the material support provision
as it relates to expert advice and assistance. And the second
is section 505(a), National Security Letter provision, as it
applies to Internet Service Providers.
And I'd like to illustrate that if I could. Section--what
the PATRIOT Act did was to amend section 505(a), and the first
poster that I'll show here shows what--I'm sorry. What the
PATRIOT Act did in section 505(a) was amend 18 U.S.C., section
2709, which is the National Security Letter provision that
applies to Internet Service Providers. This is 18 U.S.C.,
section 2709 before the PATRIOT Act.
This is how section 505(a) of the PATRIOT Act amended
section 2709. That which is in yellow was added. That which is
crossed out was deleted.
As you can see, it rewrote this statute. And the last
poster shows what's left of this statute after the court in Doe
v. Ashcroft struck it down. It stuck down not only what was in
the statute before the PATRIOT Act, but it struck down every
single word of section 505(a) of the PATRIOT Act.
So we believe that this illustrates how that particular
section of the PATRIOT Act was ruled unconstitutional. And I
should add the changes that we're advocating to section 505 of
the PATRIOT Act would bring into line with that court decision
so that it could--National Security Letters could again be
used.
Mr. Scott. Okay. Now, we--on section 215 you've got to get
a warrant, but we've ascertained that this is not limited to
crimes or terrorism. It includes foreign intelligence as well
as terrorism and everything else so that you don't need
probable cause of a crime. When you get the records--a
suggestion has been that if it's overly broad, somebody can
challenge it, but the target doesn't know you're going after,
and there's no real challenge from the recipient of the warrant
because after there's a specification--I think we've
ascertained that the judge doesn't have a whole lot of
discretion--doesn't have any discretion. Once the specification
has been made, the judge shall enter the warrant. The person
who gets the warrant is gagged, so they can't--I mean there's
not a whole lot they can do.
So is there any meaningful challenge that a recipient, the
one that gets the warrant and has to turn over the records, is
there any meaningful challenge that they can muster up?
Mr. Wainstein. Yes, sir. As has been stated here and in
other hearings with Department witnesses, the Department has
acknowledged that the recipient of a 215 order can consult with
an attorney despite the non-disclosure requirement, and can
challenge that order----
Mr. Scott. Wait a minute
Mr. Wainstein. Order and process.
Mr. Scott. You mean you're not enforcing that part of
what's written in the law?
Mr. Wainstein. The non-disclosure requirement?
Mr. Scott. Right.
Mr. Wainstein. We--the Department has taken the position in
litigation that as written that means that a person, though he
or she cannot disclose it to anybody else, can disclose the
fact of the order to an attorney.
Mr. Scott. It's not written that way. We're just
interpreting it that way.
Mr. Wainstein. Yes. And the Department has stated that it
would agree with the clarification to that effect. But that
person can, in fact, challenge. The recipient of that order can
challenge it before an article III judge.
Mr. Scott. Now----
Mr. Coble. Mr. Scott, would you suspend just a minute?
Since the gentleman from Texas and the gentleman from
California have gone to the trouble to come back, if you could
wrap up, Bobby, then we'll recognize them. We're going to have
to blow out of here at quarter 'til twelve.
Mr. Scott. Okay. Let me just stop right there.
Mr. Coble. I appreciate that. Since you all came to the
trouble, I want to recognize Mr. Gohmert.
Mr. Gohmert. Okay. Thank you, Mr. Chairman. I'll be quick,
as quick as I can be.
Let's see----
Mr. Coble. Thank you, Bobby.
Mr. Gohmert. Mr. Wainstein, I believe you were the one that
indicated earlier the Department has taken a position that a
recipient under 215 order could challenge, I believe, the
breadth of the request or the scope of the request; is that
correct?
Mr. Wainstein. Yes, sir.
Mr. Gohmert. Well, and it left me wondering. You said
that's the Department's position because of the language. In
your opinion could the next Department of Justice take a
different position?
Mr. Wainstein. Well, my understanding is the Department has
taken that position consistent with all the witnesses who have
appeared over the last few weeks, and I believe we've stated on
the record that we would be supportive of a clarification of
the law to that effect.
Mr. Gohmert. Okay. That's what I wanted to be sure of. It
was my concern that that might not be the case with another
Administration if we did not clarify, and having signed orders
or had hearings myself as a judge, when people came back and
you saw that the scope was going too far a field, it seems to
me pretty important that that be there for future Justice
Departments that we may be concerned about. So you don't have a
problem with that, either--clarifying the scope--that the scope
could be challenged?
Mr. Wainstein. The--It could be challenged. Yes, I think
there's a variety of different challenges they could bring--it
could be challenged in terms of the actual language. I don't
know that that's been determined yet.
Mr. Gohmert. Okay. Do you have anything further on that?
Mr. Nojeim. Just that I think we should codify the person's
right to challenge, and I should also add that the Department
of Justice didn't always take the position that a person could
consult with the attorney. They took that position after we
sued them because people were wanting to consult with ACLU
attorneys about a National Security Letter that was received.
Mr. Coble. The gentleman----
Mr. Gohmert. Okay.
Mr. Coble. Well, very quickly, Mr. Gohmert, and then I want
to----
Mr. Gohmert. All right. So----
Mr. Coble.--and then I want to recognize Mr. Lungren.
Mr. Gohmert. It sounds like Catch-22. They consult you
about getting an order that they were not supposed to consult
you about so it could be challenged.
Mr. Nojeim. That was the issue. I mean they didn't know
whether they could talk to anybody about it, and it was only
after the litigation started that the Department of Justice
started publicly taking this position.
Mr. Gohmert. So obviously, they did let somebody know, even
though that was a concern. But I understand your position.
Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman. Mr. Lungren, we have to
vacate this room in about 3 minutes, and you're recognized as
the final examiner.
Mr. Lungren. Well, that's a lot of pressure, Mr. Chairman.
I just wanted to mention for the record that when we were
talking about libraries, not only are we talking about those
that use libraries that have already been mentioned, but the 9/
11 Commission Report talked about Marwan Al-Shehhi and other
members of the group that quote ``used to frequent a library in
Hamburg, Germany, to use the Internet.'' A Washington Post
article, September 30, 2001, explained that another hijacker
came from a poor Saudi family, but said quote ``was facile
enough with computers so he could use the Internet at a Del Ray
Beach public library.'' I mean there is testimony that Deputy
Attorney General James Comey before the Senate Judiciary
Committee indicated the use of the New York Public Library by
one of the hijackers.
So the only point I'm trying to make is that we didn't
create this out of whole cloth. We have utilized investigative
techniques for the purpose of trying to respond to the threat
that is out there. And while we may tweak this law with respect
to some of the suggestions that have been made here, the
underlying law it seems to me is appropriate. So long as
Congress continues with oversight, it is something that is
necessary for the protection of this country. And I just hope
that some of the--sort of the general gloom and doom that I see
surrounding some of this is out there, and also some of the
hyperbole utilized by some of the people in the library
profession I don't believe is very helpful.
And when I read something such as a comment by Cindy
Czesak, the director of New Jersey's Paterson Free Public
Library, where she told Fox News that her institution collects
every complete computer sign-up sheet. After that, it's removed
and destroyed. We bought a new shredder. We're quite rebels.
Rebels from what? Thank you, Mr. Chairman.
Mr. Coble. I thank you. And, Mr. Scott says he wants to be
the final examiner, so I'll let him put a couple----
Mr. Scott. Well, I think since we're pressed for time, let
me just articulate some concerns--back to the 215.
One of the problems we have is information obtained is not,
as Mr. Nojeim indicated, not just information on the target.
You go into the library. If Mohammad Atta had used the library,
you can go and get everybody's library records as I understand
it. You can get massive amounts of information. I understand in
one situation somebody got--I don't know whether it was under
215 or some other--you got 300,000 records of people visiting
Las Vegas.
Now, some of this kind of information may be relevant. If
you got certain cities somebody's been in, it would be nice to
know who has been in these five cities, on these specific
dates, that could be a fairly small list, if you get millions
of pieces of data. What happens to the information after you've
used it? After you've run the tape, what happens to the
information, and particularly when you have in here that it
could be mostly in violation of first amendment rights? If it's
not solely because of first amendment violations.
So if you got a list of the war protesters, you want to--
that's a bit troublesome.
On the roving wiretap, we know that you can start this
thing out without probable cause of a crime. There's no
ascertainment requirement, and the Attorney General didn't want
to agree to ascertain that the target was actually in the place
where your listening in. And I think we're hearing that there
is some judicial discretion as to whether or not the roving
wiretap can be issued. I'm not sure how much of that discretion
is related to the minimization, but that might be something we
would look to.
But, Mr. Chairman, because we--and I keep harping on this--
these--foreign intelligence is not just criminal terrorism
activity. It can be anything that will help us in the conduct
of our foreign affairs, which doesn't have to be anything
relating to crimes at all. So we still have some concerns, and
we'll pursue this in our additional hearings.
Mr. Coble. I thank the gentleman. Folks, the bad news is
that we are irregular in our scheduling today because of the
next meeting. The good news is the record will be open for 7
days, and you all feel free to communicate with us as we will
with you all.
We thank the witnesses for their testimony today. In order
to ensure a full record and adequate consideration of this
important issue, the record will, as I said, be left open for
additional submissions for 7 days. Written questions that any
Member wants to submit should also be submitted within that
same 7-day period.
This concludes the oversight hearing on the implementation
of the USA PATRIOT Act, Foreign Surveillance Intelligence Act
(FISA) Part II. Thank you for your attendance, and this
Subcommittee stands adjourned.
[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman, for holding this hearing on the issues
before us today. In a context where we have broken down the traditional
wall that existence foreign intelligence gathering, particularly
foreign intelligence, and criminal proceedings, to give the government
broad authority to collect and share information, mostly secretly, I am
concerned that we have also blurred the traditional line of protection
for our privacy and freedoms.
While I agree that some lifting of the traditional restrictions in
this area were justified, to induce the government to better use the
authorities it already had in many instances, I am also mindful that
those restrictions were placed there for a very good reason. We have
seen with ``COINTELPRO,'' Watergate, the FBI spying on Dr. Martin
Luther King, Jr., and with other incidents, what abuse can occur when
we do not keep a tight enough reign on the government's use of
extraordinary powers. We shouldn't have to experience those problems
again to ensure that such abuses do not occur.
Some of the provisions today reflect a trend that is troubling to
me--the trend of the government to justify an ever increasing extension
of extraordinary powers based on its convenience. We are considering
time frames for surveillance operations that we have been extended even
more since their PATRIOT Act extensions, all because the government
says it is too costly for it to have to justify extensions to a court,
even under the low burden of the FISA Court. If we can commit to speed
billions of dollars in prison and other law enforcement costs just to
codify sound bytes urged by the Department, we can certainly spend the
time and expense it takes to assure that our privacy and freedoms are
not unduly abridged.
Mr. Chairman, I believe that it is important that we be AND
maintain our privacy and freedoms. I don't believe we should operate
under the premise that we have to give up or balance one against the
other. So, Mr. Chairman, look forward to the testimony of our witnesses
on the provisions before us to learn more about what use is being made
of the extraordinary powers authorized and whether sufficient oversight
is being undertaken such that the powers are used in a way to protect
our safety as well as our privacy and freedoms. Again, I thank you for
putting together this hearing on these important matters.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The provisions we're discussing today, like the PATRIOT Act itself,
range from nonpolitical technical amendments to questionable
infringements on court authority. I look forward to hearing from the
witnesses about all of them.
I look forward to hearing from the Justice Department about why
Section 207 should be reauthorized and allow secret surveillance for up
to a year. Part of the justification for allowing the extraordinary
intrusions under the Foreign Intelligence Surveillance Act is the
extensive judicial oversight by the FISA court. This section takes that
reasonable oversight away and gives the Justice Department authority to
surveil suspects long after the relevant facts have expired. While the
paperwork may be burdensome, a violation of a person's very privacy is
more so.
I also look forward to hearing why Section 214 should be
reauthorized. Pen register and trap and trace orders no longer need to
be aimed at a agent of a foreign power under this provision, and are
available under the vague standard of ``relevance.'' This is even more
troublesome in light of how the PATRIOT Act has permanently expanded
these orders to allow the government to record the websites a person
visits and addresses and subject headings of the emails he sends and
receives.
Also, I hope this hearing thoroughly discusses the lone wolf
provision, also set to expire this year. FISA allows the secret
surveillance, search and seizure only because it is necessary to
protect us from foreign powers. To expand FISA to apply to those who by
definition have no connection to foreign powers starts our law
enforcement down a slippery slope. There is no telling where it might
end.
Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S.
Department of Justice, dated April 30, 2003, to the Honorable Orrin
Hatch, Chairman, Committee on the Judiciary, United States Senate
Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S.
Department of Justice, dated March 5, 2003, to the Honorable Orrin
Hatch, Chairman, Committee on the Judiciary, United States Senate
Letter from Daniel J. Bryant, Assistant Attorney General, U.S.
Department of Justice, dated July 31, 2002, to the Honorable Bob
Graham, Chairman, Select Committee on Intelligence, United States
Senate, and the Honorable Richard C. Shelby, Vice-Chairman, Select
Committee on Intelligence, United States Senate
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman, for holding this hearing on Sections 206
and 215 of the USA PATRIOT Act. These are some of the more
controversial sections of the bill that up for renewal consideration.
They are controversial because of the extraordinary extent of virtually
unchecked powers they allow the government to use to invade the privacy
of individuals. Section 215 is particularly disturbing, given its
breadth of authority it allows for law enforcement officers to obtain
private records on no more that representation that it is relevant to
foreign intelligence or international terrorism for espionage.
And even though section 505 of the PATRIOT Act is not under a
sunset, you really can't talk about the problems with 215 without
discussing the same problems with 505. Section 505 allows a host of
private records and information to be obtained through the issuance by
line level officers of National Security Letters (NSL's)on the mere
representation they are relevant to an investigation of foreign
intelligence, international terrorism, or espionage. There need be no
crime, no probable cause, no reason to believe, no credible or
particular facts--just a representation in the case of 215, and the
FISA court has no choice but to issue the order for the production of
the records. And in the case of NSL's, there is no court issuance or
oversight--just the line officer's issuance, in terms of the
requirements of the law.
For both 215 and 505, all of this is done in secrecy with no
explicit right to challenge the orders and with permanent gag orders on
the keepers of the records sought, even to the extent of consulting
with an attorney. And with our liberalized information sharing rules,
the information obtained can be distributed all over town. This means
your neighbors who are law enforcement agents may know a lot more about
your private medical, organizational affiliation, reading and video
viewing activities than you ever imagined.
With respect to section 206, FISA roving wiretaps, I have often
noted the difficulties I see. Again, under the law, no crime need even
be alleged, and under the ``John Doe'' wiretap, no person or particular
device need be shown, and in either case, no effort has to be made to
ascertain whether the target is actually using the device before
communications can be intercepted. And, again, all of this is in secret
in a secret court with limited oversight and reporting requirements
when compared to criminal wiretap processes. Department of Justice
witnesses often use the powers extended on the criminal court side to
justify the same powers on the FISA side. However, they don't call for
the same oversight and reporting requirements as on the criminal side,
and I think that's where we need to pay a lot more attention in
considering renewal of these powers.
So, Mr. Chairman, I look forward to the testimony of our witnesses
for enlightenment on why we should consider renewing these
extraordinary powers and under what circumstances and conditions. And I
look forward to working with you on implementing their recommendations.
Thank you.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Today we will hear testimony on two of the most controversial
sections of the PATRIOT Act. I look forward to hearing why the Justice
Department must have these provisions reauthorized wholesale without
any safeguards put in place to make sure that rights of suspects are
not abused.
Section 206 creates roving ``John Doe'' wire taps. We will most
likely hear testimony today that this provision is already widely used
in criminal investigations. However, I am unaware of a court
sanctioning a roving wiretap without a clearly identified target. I
hope to hear where exactly this authority is coming from to better
understand how the Justice Department is using its new authority. I
also expect the Justice Department to explain why it believes it should
be able to use criminal investigation techniques in intelligence
investigations, without supplying the parcel of rights and procedures
that have always gone along with those techniques.
Section 215 allows the government to secretly get any thing from
any business only upon the showing of relevance to a terror or
intelligence information. The Justice Department, in its usual shroud
of secrecy, refuses to explain how this section has been used. It will
only confirm that it has been used 35 times, and not against libraries.
This information comes on the eve of the sunset, after three years of
pressing national security that required a secret classification.
Without more information, I say: too little, too late.
While National Security Letters have been suspiciously left off
this Committee's oversight list, I hope to hear from our panelists
today about their use. It appears from a redacted FOIA request that
this provision has been used hundreds of times. The less-famous brother
of Section 215, national security letters are unusually dangerous
because in addition to adding a complete gag order on the recipient,
they are issued without any oversight from even the FISA court. Because
the Justice Department admits to getting information from libraries, I
suspect that National Security Letters may be the source, and must have
more information about their use as we look at the PATRIOT Act.
Finally, I would like to publicly reiterate my concern that the
Judiciary Committee has left many important terror-related policies off
its oversight schedule this year. From the practice of rendition, to
the abuse of the material witness statute, to unsuccessful racial
profiling, this Committee is ignoring the most pressing matters within
its jurisdiction. We cannot limit our oversight to the few sections of
the U.S. code that will expire at the end of the year. Clearly, the
Justice Department has shifted the weight of its terror pursuit to
other authorities, or even in the absence of lawful authority at all.
If we are truly going to do our constitutional duty of overseeing the
executive's use of criminal and intelligence laws, we must look at
these issues.
Redacted document ACLU received in response to a request under the
Freedom of Information Act to disclose activity related to
Transactional Records National Security Letters issued since October
26, 2001
Letter from William E. Moschella, Assistant Attorney General, U.S.
Department of Justice to the Honorable Richard B. Cheney, President of
the Senate, United States Senate
Letter from William E. Moschella, Assistant Attorney General, U.S.
Department of Justice to L. Ralph Mecham, Director, Administrative
Office of the United States Courts
Form National Security letter from the U.S. Department of Justice
Illustrations to show the implications of the PATRIOT Act and Doe v.
Ashcroft on Section 2709 of the Electronic Privacy Act